[Research seminar] The (Positive?) Complementarity Turn in International Criminal Justice

On 11 February, the Asser Institute is proud to welcome Dr Patryk I. Labuda, a Visiting Fellow at the Amsterdam Center for International Law. During this research seminar, he will be presenting his paper: ‘The (Positive?) Complementarity Turn in International Criminal Justice’.

The International Criminal Court has struggled to incentivize states to initiate domestic prosecutions of international crimes. Contrary to expectations, the Court’s jurisdictional framework, known colloquially as complementarity, has failed to alter governments’ accountability preferences. Nevertheless, cooperation incentives embedded in the Rome Statute’s institutional design have had profound implications for how states, civil society, and academics understand the global fight against impunity. Not only are states now rhetorically understood to be the primary enforcers of international criminal law; the international community is increasingly expected to build state capacity to fight impunity, regardless of whether incumbent governments are prosecuting international crimes committed by their own officials. Drawing on findings from three qualitative case studies of international criminal interventions, this chapter from his forthcoming book (In the Court’s Shadow. International Criminal Tribunals and Domestic Accountability, OUP) examines several trends in the field of international criminal justice over the last twenty five years. It focuses on the confluence of ‘bottom-up’ and ‘top-down’ pressure from international actors in promoting domestic accountability, the turn from ‘naming and shaming’ to ‘cooperative’ rule of law reform strategies, and the phenomenon of ‘unintended sham complementarity’, whereby states prosecute less serious human rights violations while ignoring systematic international crimes, especially when committed by incumbent government actors. After identifying and disaggregating three intervening factors in how international criminal tribunals ‘catalyze’ domestic accountability policies – mandated temporal constraints, political will and prosecutorial leadership – it turns to systemic reforms that should be implemented at the ICC (and future ad hoc and hybrid tribunals) to increase their impact at the national level, including a re-imagination of the addressees of international criminal justice, conditionality policies in tribunal-state relations, and operational reforms within the ICC’s Office of the Prosecutor.

Asser research seminars

During the Asser Research Seminars, external researchers are invited to present their current and upcoming research with the Asser research community. The seminars are semi-open, as we invite a few external people who may be interested in the specific topic of the seminar. However, we aim to keep the group’s size limited, to stimulate interaction and high quality, in-depth discussions. Researchers who are interested in presenting their research to the Asser research community are welcome to send an e-mail to Dr Christophe Paulussen (c.paulussen@asser.nl).