International Criminal Tribunals and Domestic Accountability – In the Court’s Shadow, Patryk I. Labuda, Oxford University Press, 2023, 368 pages, £110
Complementarity has emerged as a byword for international criminal law’s preoccupation with domestic accountability.… But the word complementarity, derived from the Rome Statute, designates not merely the ICC’s institutional design vis-à-vis states. More importantly, it has come to embody diverse assumptions, expectations, and beliefs about how international and domestic actors should interact with one another in the anti-impunity project. One especially prominent idea is that international tribunals exist not just to hold trials but also to cast a shadow over states and to serve as a ‘catalyst’ for the domestic rule of law. (p. 258)
Complementarity, positive complementarity, and to a lesser extent, court shadow or shadow of the court are words and phrases of malleable and nebulous substance. Their invocation inspires as much as they perplex. Injected into the lexicon of international criminal law practice and procedure, these words and phrases have become ubiquitous, if not indispensable, when considering the works of the International Criminal Tribunals (ICTs). Lately, positive complementarity – the notion that the International Criminal Court (ICC) should be engaging national jurisdictions in prosecutions of international crimes and encouraging states to prosecute cases domestically when possible (shifting enforcement of international criminal law from ICTs to domestic courts) – seems to be dominating at conferences and legal writings, often referenced in regards to the court’s shadow (a multi-definitional phase, ranging from positive affects to swords of Damocles).
When the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were established by the United Nations Security Counsil (UNSC) with primacy as to who would be prosecuted, it was understood that once these courts ceased to operate, anti-impunity trials would have to continue through domestic courts. Of course, it was also understood that before cases under ICTY and ICTR jurisdiction could be transferred to or allowed to proceed in domestic courts, significant legal and judicial reforms would be required.
As their mandates seemed to be coming to an end, having dealt with the most serious cases and most responsible individuals for mass atrocity crimes, the UNSC compelled the ICTY and ICTR to wrap up. With donor fatigue setting in and cost-saving pressures by the UNSC, the road for trials to be held in Bosnia and Herzegovina and Rwanda was paved by the completion strategies (here and here). Those in custody not deemed most responsible would be transferred to domestic jurisdictions. With residual needs that would run well past their life expectancies, the ICTY and ICTR transitioned into the International Residual Mechanism for Criminal Tribunals.
Whether domestic courts had the capacity to investigate and prosecute and try mass atrocity cases – or better yet, whether they appreciated their lack of capacity to do so at a level consistent with and in adherence to international standards of fair trial rights – is more than suspect. While there seemed to be a willingness, if not a demand, for domestic trials, it was obvious that circumstances considered, courts were unable to provide fair trials, neither in the states that emerged from the former Yugoslavia nor in Rwanda – at least not immediately after the respective civil wars.
With the ICTY and ICTR having primacy, there was little incentive for the prosecutors and judges to engage with their national (domestic) counterparts in enhancing their capacity. Aside from having to operate on tight budgets and overstretch the staff just to meet their obligations in providing fair and expeditious trials, their mandate did not include capacity building. With primacy resting with the ad hocs, this would become an issue in transferring ICTY/ICTR Rule 11bis cases to domestic courts.
The word complementarity, associated with the ICC, was not heard. Yet, in principle, it was applied. The difference being that whereas under the Rome Statue the ICC, having only subsidiarity jurisdiction over cases not deferred to domestic courts because of their inability or unwillingness to prosecute, the ICTY and ICTR had primacy jurisdiction, deciding whether a suspect or accused would be tried in their courts or to allow the case to be handled by domestic courts.
As for positive complementarity, this too came into existence, though not necessarily referred to as such. Even before the completion strategies kicked in, it was obvious that some transfer of knowledge and best practices and modifications of laws would be necessary were domestic trials to meet international standards. Bosnia and Herzegovina had the Office of the High Representative to guide, support, and if necessary, impose wide ranging systemic, judicial, and legal reforms and capacity building measures to ensure fair trails. Rwanda had international support, but unlike Bosnia and Herzegovina, it was the captain of its ship, to be steered in a direction and speed it deemed fit. Though improvements were adopted in Rwanda to meet the challenges in investigating, prosecuting, and trying cases within the framework of international standards of fair trial rights at a domestic court which would fall under the primacy jurisdiction of the ICTR, concerns remain.
Unlike the ICTY and ICTR, the ICC does not have primacy jurisdiction, leaving it up to the State Parties to take the initiative – unless unable or unwilling. At least in principle. Referrals from States Parties seem to be accepted by the ICC Prosecutor with little regard or scrutiny as to whether the concerned State Party is genuinely unable or unwilling. Of course, there are other ICTs besides these mentioned, such as Special Court for Sierra Leone (SCSL), Special Tribunal for Lebanon, Extraordinary Chambers in the Courts of Cambodia, The Special Panels for Serious Crimes (East Timor Tribunal), Kosovo Special Chambers, and Special Criminal Court in the Central African Republic. All ad hoc and hybrid, all with different experiences and challenges in dealing with jurisdictional, complementarity, and positive complementarity issues.
Photo credit: International Nuremberg Principles Academy 2017
With this backdrop in mind, I turn to Patryk I. Labuda’s masterly written International Criminal Tribunals and Domestic Accountability – In the Court’s Shadow. Anyone interested in understanding the foresight, if any, of those involved in the founding of the ICTs, the attitudes and obstacles faced by ICTs in relation to domestic authorities, the systemic shortcomings and presumed solutions offered, the different jurisdictional approaches ranging from primacy to subsidiarity in evaluating past successes and failures, and approaches in finding credible alternatives, look no further. Labuda has produced a most impressive piece of scholarship that should be mandatory reading for anyone involved in policy making decisions on complementarity issues at any of the ICTs and anyone who may be involved in setting up future ICTs.
Consequential in substance, International Criminal Tribunals and Domestic Accountability – In the Court’s Shadow is a highly researched account of how three ICTs, namely, the ICTY, the SCSL, and the ICC have contributed to domestic accountability through exercising, or not, their application of jurisdictional contours, their interactions with domestic authorities whose visions and approaches (in part because of capacity, in part because of domestic preferences, priorities and preconceptions) vary and often did not align with those of the ICTs.
Unpacking how these ICTs (and when necessary for comparison purposes other ICTs) have dealt with and affected domestic accountability through their interactions with states and vice versa, Labuda analyzes and synthesizes archival data along with insightful information gathered in the field through interviews of insiders and others. He also looks at what other scholars have written and concluded. By the end of a topic or chapter one has been served with a cogently written, eloquently presented, and comprehensively referenced set of facts, legal interpretations and applications, examples, comparisons, suppositions, and conclusions. Labuda weighs in with his take at the end. Having logically marshalled the dissected and synergized data, he elegantly draws measured conclusions, while unobtrusively leaving space for the reader to reflect and draw his or her own conclusions.
Labuda uses “deductive legal methods and an inductive, interpretivist social science approach” to garner “sociolegal” insights. From case studies, he shows how “international norms shape, and are, in turn, shaped by interactions between international civil servants (especially prosecutors and their staff) and different state-based actors (government and civil society). The result is perspicacious: the terms complementarity and primacy obscure the complexities of the international and domestic jurisdictions interplay. Mandates aside, Labuda persuasively argues that “concurrent jurisdiction must be analyzed along other mandated features, such as personal jurisdiction, cooperation obligations, trigger mechanisms, operational time frames, and hybrid institutional design features.”
Drawing on German Sociologist Max Weber’s “ideal type”1 – an analytic tool that scrutinizes, classifies, systematizes, classifies, and defines facts collected carefully and analytically for empirical research to identify constructs as methodological devices – Labuda guides the reader’s understanding of the implications of the terms complementary and primacy, as revealed in practice.
Conceptualizing three ICT-state topological constructs / “relationships”: iteration, accommodation, and isolation, Labuda explains:
These three relationships depend on whether international civil servants and government actors cooperate with, ignore, or are in conflict with one another. While iteration captures international-domestic interactions that produce shifts in domestic accountability preferences, accommodation is neutral in terms of how ICTs influence states while isolation has dissuasive effects.
International Criminal Tribunals and Domestic Accountability – In the Court’s Shadow is organized into seven chapters plus an epilogue. In the introduction, Labuda treats the reader to his methodical approach, explains his (limited) selection of three case studies – Rwanda (ICTR), Siera Leone (SCSL), and Democratic Republic of Congo (ICC) – and informs his overarching thesis:
[T]he turn to (positive) complementarity may have prompted more fundamental distortions in international criminal justice, not only at the international level (trials limited to non-state actors) but especially at the national level, where state-initiated prosecutions of serious crimes serve to consolidate the authority of elites and exacerbate transitional regimes’ authoritarian tendencies. Driven by the incentives and rhetoric of complementarity, international actors strengthen prosecution services and courts, but are unable to challenge the executive branch which condones impunity for some people and some crimes. While advocates strive to promote domestic accountability as part of human rights-based transitional justice agenda, complementarity’s ‘authoritarian shadow’ may ultimately serve to mainstream a well-known pathology of ICTs – victors justice – into the domestic sphere.
What follows in the next six chapters is exemplary scholarship – applying ideal type analytical tools in showing how the typological relationship supports his conclusions and overall thesis.
Chapter 2 sets out the “practice-based tripartite analytical framework for analyzing ICT-State relations” and looks at state-driven accountability systems for identifying resulting implications to “traditional justifications to international criminal law enforcement.”
Chapter 3 looks at how the ICTs regulate(d) their relationship to states, highlighting similarities and differences, showing that “rather than fixed bodies of norms that generate specific procedural or substantive outcomes, these arrangements [primacy, hybrid/restrictive mandate or complementarity] also express general values or a dominant institutional preference for international, domestic, or mixed enforcement of international criminal law.”
Chapters 4 (International Intervention and Domestic Prosecutions), 5 (International Intervention and Capacity Building), and 6 (International Intervention and Norm Internalization) deal with how the ICT’s are devoted to the shadow effect. These three chapters are profoundly relevant to any discussion on how, or to what extent, the ICT’s shadow had influenced domestic accountability, capacity building and norm internalization. Labuda, through his case studies, empirically shows to what extent international intervention has had a positive, neutral, or negative effect in domestic anti-impunity pursuits. The picture that emerges is somewhat dissatisfying.
Chapter 7 examines three international criminal justice trends: “a turn from coercive interventions to ‘cooperative’ rule-of-law strategies, the phenomenon of unintentional diversionary complementarity, and the turn of investigations to preliminary examine sites of iterate strategies at the ICC.”
The epilogue, serving as a conclusion, sums up what the previous six chapters demonstratively reveal: the ICTs’ shadow cannot usher in rapid results through peace or reconciliation, and that turning “to (positive) complementarity – understood as a shift towards domestic accountability qua ultima ratio of the anti-impunity project – has more profound ideational consequences for international criminal law than acknowledge.” Labuda’s final thought deserves quoting:
Twenty years after the Rome Statute’s entry into force, the ICC must chart a path forward. While the disciplinary consensus is that the future of international criminal justice is domestic, the effects of international (criminal) intervention at the national level require critical scrutiny. Activists and scholars should consider both the strengths and weaknesses of states’ increasing use of (international) criminal law, an inherently illiberal tool, in today’s increasingly illiberal political climate. It will also be for the ICC and especially its prosecutor to decide if The Hague can function as more than a conduit for consent-based international trials of undesirable domestic rivals and, by the same token, if the ICC’s and other ICTs’ symbolic shadow can be harnessed by complementarity stakeholders to achieve counter-hegemonic and emancipatory goals domestically.
It is unfeasible in a short blog post to do justice to International Criminal Tribunals and Domestic Accountability – In the Court’s Shadow. There is simply too much to unpack – all of which I found rigorously presented, expertly analyzed, and persuasively argued. While much ink has been spilt on complementarity, positive complementarity, primacy, subsidiarity, and shadow, Labuda offers an original analytic framework. His methodological approach is as sound as his deductions are insightful. What I appreciate most about this book is that it nudged me to reexamine my views and refine my perspective, which, for the most part, have been forged over the past two-plus decades as a practitioner before the various ICTs. For this I am much indebted.
I unreservedly recommend International Criminal Tribunals and Domestic Accountability – In the Court’s Shadow.
About Author
- According to Max Weber, “An ideal type is formed by the one-side accentuation of one or more points of view and by the synthesis of a great many diffuse, discrete, more or less present and occasionally absent, concrete individual phenomena, which are arranged according to those one-sidedly emphasized viewpoints into a unified analytical construct …. In its conceptual purity, this mental construct…. cannot be found empirically anywhere in reality.” [↩]
