Hold your horses - ICC complementarity

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Thursday, June 16, 2016 - 17:29

By Mark Kersten

A former first lady goes on trial for disturbing the peace and undermining state security in Abidjan. According to the International Criminal Court (ICC) and human rights groups, however, she should be prosecuted in The Hague for the crimes that she has been charged with by the Court.

Lawyers in Côte d'Ivoire respond by alleging that Simone Gbagbo perpetrated crimes against humanity during the 2011 post-election violence — the same charges she’s facing at the ICC. Looks good, right? Not quite. As she goes on trial, groups representing Simone Gbagbo’s alleged victims say they’ll take no part in the proceedings and pull out because “the prosecution's investigation had been rushed in order to respond to the ICC warrant and the trial would not give victims a full picture of the Gbagbo administration's orchestration of the post-election violence”.

Positive complementarity

Let’s take a step back for a moment. In recent years, there has been something of a complementarity turn, a subtle but evident shift towards focusing on “positive complementarity” — the ICC’s role and ability to catalyse domestic prosecutions. Rather than actually putting perpetrators in the dock, galvanising domestic proceedings is increasingly seen as the ICC’s primary means of ending global impunity. It relies, of course, on using carrots and sticks to ensure that states meet the Court’s complementarity regime — i.e. investigating and prosecuting perpetrators of war crimes, crimes against humanity and genocide, and showing that they are able and willing to do so genuinely. In the case of Côte d’Ivoire, we have a state that has responded positively to the ICC’s insistence that an alleged perpetrator be prosecuted with the same crimes she faces at the Court. But the groups representing the victims think it was done with such haste that they pull out of the proceedings altogether. What’s going on here? Were the victims groups right to ditch proceedings?

One would assume that the victims groups, including the International Federation for Human Rights, don’t make decisions for their victims but instead represent their wishes through a consultative process. Withdrawing from proceedings is undoubtedly a dramatic act. After all, it is unlikely that Simone Gbagbo will be prosecuted elsewhere and perhaps ever again for international crimes. Her current and ongoing trial may be the only chance these victims get to participate in a trial and have their voices heard by Gbagbo herself. Evidently, however, their expectations of proceedings are so low that they would prefer not to see justice done rather than to lend the legitimacy of their participation to the hearings.

Broader question

This raises a broader question: how quickly should states respond to ICC pressure to investigate and prosecute alleged perpetrators of international crimes? This isn’t an easy question to answer, particularly in cases where there have been instances of mass political violence or war — essentially all ICC cases. In such instances, surely new governments shouldn’t simply be expected to immediately flip their most senior and often responsible detainees over to the ICC. If there is any virtue in the idea of new regimes prosecuting old ones in order to break with the past, sending senior perpetrators to The Hague would undermine it. In Libya, ICC prosecutors and judges gave the authorities a remarkably long leash when it came to prosecuting former spy chief Abdullah al-Senussi. As I explore at length elsewhere, this was at least in part because Court officials felt that the new Libyan government deserved a crack at prosecuting senior figures from the Gaddafi era.

But there is also the risk that states can’t or won’t genuinely prosecute former despots, dictators and their ilk. This is not always because they don’t want to but because of the circumstances, including violent unrest and political instability. In the Senussi case, the ICC’s leash was, in fact, far too long. The Court essentially gave its blessing to a deeply flawed, nigh impossible, trial. For whatever reason, prosecutors refuse to acknowledge this and suggest that perhaps, given the incredibly volatile situation in the country, the admissibility hearings should be re-started and Senussi should be transferred to The Hague for trial.

Outsourcing ICC trials

Finally, there is the issue of outsourcing — where a state actually does decide to simply and immediately flip its detainees to the ICC in order to get rid of them and ensure that they are no near their former bases of power. Fearing that Laurent Gbagbo’s presence could potentially destabilise Côte d’Ivoire, this is precisely what the government of Alassane Ouattara did in the case of the country’s former president. Such outsourcing is permissible under the Rome Statute of the ICC, but remains a rather controversial practice.

Deciding how fast or slow complementarity in practice should go will always be negotiated context-specifically. But it also needs more theorising and study. Echoing Darryl Robinson’s cogent observations on the choices and quandaries in international criminal justice, when it comes to timing and complementarity, there is no goldilocks principle. There is no ‘just right’ approach. But it is possible to identify when things seem ‘just wrong’. In Libya, that is the Senussi case and the ICC’s ambivalence towards where his trial takes place. In Côte d’Ivoire, what could be a clearer signal that something has gone wrong than when victims, in whose name international criminal justice is pursued, decide to step aside? 

Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict, looking into the politics and dilemmas of international justice. 

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