The turn to domestic accountability in the shadow of international criminal tribunals

On 21 July, the Special Criminal Court in the Central African Republic concluded its first trial, with three suspects convicted of war crimes and crimes against humanity. A few weeks earlier, Ukrainian investigators launched a war crimes and ecocide investigation into the attack on the Khakovka dam, while dozens of other cases weave their way through the national justice system. On the other side of the Atlantic, Colombia’s Special Jurisdiction for Peace contemplates how to address hundreds of crimes committed during South America’s longest civil war.

What do these three examples spanning three continents have in common? Although they stem from different geo-political contexts of criminality, the proliferation of investigations and trials across Africa, Europe, and the Americas speak to the growing importance of domestic accountability for serious crimes, especially war crimes, crimes against humanity, and genocide. While international justice is still reflexively associated with high-profile international cases, for instance Vladimir Putin’s recent arrest warrant at the International Criminal Court (ICC), most defendants are now prosecuted by national institutions. In fact, even in countries like Ukraine or Colombia, the ICC plays mainly a backup role, with only two to three trials in The Hague at any given time, in stark contrast to the hundreds of cases prosecuted by the former criminal tribunals for Rwanda or the former Yugoslavia.

How did domestic accountability come to eclipse the dream of international criminal tribunals? And what effects does this shift from international to domestic trials have on the global fight against impunity? To answer these questions, my book, International Criminal Tribunals and Domestic Accountability: In The Court’s Shadow, examines the causes, rationales and, consequences of what it calls the complementarity turn—a paradigm shift toward national trials as the ultima ratio or end goal of international criminal justice. Just 25 years after the adoption of the ICC’s founding treaty, domestic justice is celebrated as quicker, cheaper, and more attuned to victims’ needs than proceedings in the far-away courtrooms of The Hague. Many even argue that “the future of international criminal justice is domestic.” And yet, while a sophisticated literature now exists on international criminal tribunals’ shortcomings, scholars are only beginning to study what a turn to domestic accountability means for societies in the midst of violence, emerging from conflict, or confronting a legacy of past abuses. Given international criminal law’s short history, many accountability debates, including about how international and national justice relate to one another, still revolve around assumptions and conventional wisdom.

By drawing on three case studies—Rwanda, Sierra Leone and the Democratic Republic of Congo (DRC)—my book contributes to this growing body of socio-legal scholarship that moves beyond assumptions to analyze what has and has not worked in in specific countries. By comparing how three different international criminal tribunals interacted with domestic justice processes (in addition to the ICC in the DRC, I examine the work of the Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda), I assessed the extent to which the three tribunals’ different institutional designs conditioned relations with state officials and civil society in three countries, and ultimately what kind of “shadow effect” the tribunals had on state actors’ ability and willingness to launch genuine and fair prosecutions of serious crimes at the national level. 

The findings confirm that the pursuit of accountability for serious crimes is a complex, context-specific multi-actor process, and no one should expect “quick fixes,” silver bullets, or “optimal” institutional design “solutions to impossible problems.” However, beyond context-specificity, the book draws attention to cross-cutting patterns and how the language of complementarity—a neologism derived from the ICC’s institutional design—has come to shape accountability efforts in the DRC, Rwanda, Sierra Leone, as well as a dozen other countries mentioned in the book. While the ICC’s institutional design vis-à-vis states, known colloquially as complementarity, was expected to spur domestic accountability efforts—setting the ICC apart from other tribunals—20 years of practice has confounded these expectations. Similar to other international criminal tribunals, domestic accountability efforts in countries under the ICC’s jurisdiction have varied considerably, with hundreds of domestic prosecutions in the DRC or Colombia standing in stark contrast to the quasi-absence of national trials in Georgia or Uganda. Although geopolitical realities and social expectations partly explain these divergent national responses, the book draws on the experiences of Sierra Leone, Rwanda and the DRC to suggest that international and national accountability stakeholders, especially donors and NGOs, increasingly prioritize (consensual) capacity-building programs for national magistrates and attorneys while avoiding the political dimensions of state-led justice efforts, including (contentious) questions about who gets selected for domestic prosecution, on what charges, or the fairness of ensuing trials. In questioning the ICC’s dominant interpretation of its jurisdictional powers, I warn that, even in best case scenarios, the Court’s engagement with states may produce “unintended diversionary complementarity,” or selective national prosecutions of lower-ranking suspects and less controversial crimes. Another way of putting this is that, instead of incentivizing—by casting a shadow over domestic accountability efforts—a genuine and fair reckoning with the most serious crimes, ICC interventions may result in selective national prosecutions that entrench the ruling political elite’s power.

In identifying a potential “authoritarian effect” of state-centric domestic accountability initiatives in countries like the DRC and Rwanda, the book raises further questions about the “romanticization” of national responses to atrocity crimes and whether an overly optimistic emphasis on domestic trials qua ultima ratio of the international criminal justice project may promote illiberal tendencies in some contexts. Not only is the book an appeal to other scholars to study whether similar dynamics of “unintended diversionary complementarity” can be observed elsewhere, I identify factors that impede domestic accountability initiatives as well as forward-looking strategies that can enable a balanced approach by the ICC vis-à-vis its national counterparts, for instance greater civil society engagement, prosecutorial cooperation, and trial monitoring. 

However, beyond strategies and institutional design tweaks geared to more dynamic ICC-national relations, my stock-taking of major trends in international criminal justice since the 1990s is an invitation to scholars and civil society to reflect more critically on the rationales and consequences of the much-celebrated complementarity turn, including the cliché that “the future of international criminal justice is domestic.” Although it started after my book was finished, Russia’s 2022 invasion of Ukraine and ongoing accountability debates over the respective roles of domestic, international, and hybrid trials suggest that a relational evaluation of the merits and drawbacks of both international and national accountability initiatives will require further study.

_{Featured image by Michal Vrba via Unsplash, public domain}