Complementarity in the line of fire

Abstract

Of the many expectations attending the creation of the first permanent International Criminal Court, the greatest has been that the principle of complementarity would catalyse national investigations and prosecutions of conflict-related crimes and lead to the reform of domestic justice systems. Sarah M. H. Nouwen explores whether complementarity has had such an effect in two states subject to ICC intervention: Uganda and Sudan. Drawing on extensive empirical research and combining law, legal anthropology and political economy, she unveils several effects and outlines the catalysts for them. However, she also reveals that one widely anticipated effect-an increase in domestic proceedings for conflictrelated crimes-has barely occurred. This finding leads to the unravelling of paradoxes that go right to the heart of the functioning of an idealistic Court in a world of real constraints. sarah m. h. nouwen is a university lecturer in law at the University of Cambridge. She is also a Fellow of the Lauterpacht Centre for International Law and of Pembroke College.

The legitimacy crisis within international criminal justice and the importance of critical, reflexive learning

“…Rather than take legal action against the perpetrators of grave crimes itself, Mutua has insisted that the ICC take seriously its clearly prescribed role in supporting domestic legal procedures (ibid., p. 3). This is affirmed by Nouwen (2013) in her comprehensive study of the failings of the international criminal justice system, and especially the ICC, to realise its core function of promoting complementary systems to prosecute international crimes in the national court systems of Uganda and Sudan.…”

The International Criminal Court’s Impact on Peacebuilding in Africa

“…50 Similar issues have arisen in other African peace negotiations conducted during ICC investigations and prosecutions, including the 2011 Doha talks between the Sudanese government and seven Darfuri rebel groups, in which amnesties were a central issue. 51 While the Court was never the principal actor in catalyzing or undermining peace negotiations, it greatly stymied attempts to peacefully resolve the conflict between the LRA and the government.…”

Legitimising the Juba peace Agreement on Accountability and Reconciliation: the International Criminal Court as a third-party actor?

“…88 Nouwen writes that Uganda's referral letter, submitted in December 2003, 'followed the shorthand description of complementarity, dominant in the academic literature at the time, as a test of the willingness and ability of the overall justice system of a state with jurisdiction over the alleged acts'. 89 Juba participants worked with this 'shorthand' interpretation of complementarity rather than the one developing through the ICC's case law. Thus, respective members of the mediation and government teams focused on political will and judicial competences and credibility:…”