UNINTENDED POSITIVE COMPLEMENTARITY: WHY INTERNATIONAL CRIMINAL COURT INVESTIGATIONS MAY INCREASE DOMESTIC HUMAN RIGHTS PROSECUTIONS.

Author:Dancy, Geoff
 
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  1. INTRODUCTION

    The International Criminal Court (ICC) is controversial, acutely so in Africa. The first thirty-nine people it indicted were all African. It did not open any formal investigations outside Africa until the 2016 decision to investigate conduct related to the 2008 Georgia-Russia war. The first three notifications of withdrawal from the ICC Statute, each made in 2016, were by Burundi, South Africa, and Gambia. While South Africa and Zambia reversed their initial intentions, Burundi in fact became the first state party to withdraw from the ICC in October 2017. These maneuvers are closely connected to country-specific political and legal considerations, but they overlap with concerns expressed by governments in other countries including Kenya and Namibia. Among these concerns is that "the ICC has become the greatest threat to Africa's sovereignty, peace and stability," and that "the ICC is a colonial institution under the guise of international justice." (1)

    These criticisms (2) in turn have been intensified by serious questions about the effects of ICC intervention. Some conflict experts blame untimely ICC indictments against perpetrators of rights violations, like Ugandan rebel leader Joseph Kony and Sudan's President Omar al-Bashir, for ruining peace negotiations that might have ended civil wars. (3) Some even surmise that Libyan President Muammar Gaddafi would have accepted exile were it not for his indictment by the ICC on February 26, 2011; instead, he dug in his heels and fought a bloody war against rebels. (4) In December 2014, Prosecutor Fatou Bensouda shelved charges against Kenyan President Uhuru Kenyatta and terminated ongoing investigations into Sudanese atrocities. (5) Citing such examples, observers complain too that the ICC is not a deterrent, and is unlikely to reduce generalized violations of international human rights and humanitarian law. (6)

    Mindful of these pessimistic expectations concerning the effects of the ICC's actions, this article argues that the Court may also have had unanticipated but possibly beneficial consequences in some African countries in which it has been involved. These impacts were brought about through a mechanism we refer to as unintended positive complementarity. Whereas the Office of the Prosecutor (OTP) defined positive complementarity as the ICC's coordinated efforts to promote national prosecutions of state and rebel leaders for international crimes within the Court's jurisdiction, we use the term "unintended positive complementarity" to reference the ICC's wider impact on judicial activity, in particular an increase in domestic prosecutions of state agents for human rights violations beyond the attention of the ICC. (7) Positive complementarity has usually been understood in a narrower way, focused on the possibility that the ICC and state parties might cooperate to try those responsible for international crimes outlawed in the Rome Statute. We argue that ICC investigations have a broader, spillover effect in prompting a range of national prosecutions of state agents in the targeted countries. The evidence we analyze suggests that this effect arises not from direct cooperation between state leaders or agencies and the ICC, but from latent political struggles between ruling coalitions and reformer coalitions that are exacerbated by ICC investigations. We use the term "unintended" as a shorthand, to capture the feature that this effect is not one of the principal effects envisaged in the system of ICC investigations. We do not explore the actual intentions of ICC prosecutors.

    Our hypothesis is that ICC investigations into a country's situation will increase domestic human rights prosecutions, which are defined as "the use of formal domestic courts of law to initiate a criminal proceeding--including preliminary trial processes, trial hearings, or verdict and sentencing--for one or more state agent perpetrators of human rights violations." (8) The prosecution of state agents, including members of military and police forces, is a hard test for the theory; ruling coalitions are reluctant to see their own forces targeted for trial, though they are more than willing to punish opposition forces and rebel groups. Therefore, if state agents are going to trial, it means that something other than "victor's justice" is taking place.

    Using a new data set collected by the Transitional Justice Research Collaborative (TJRC)--which features yearly counts of domestic human rights prosecutions and of guilty verdicts produced in those prosecutions from 1970 to 2014 in African states--this article finds that countries under investigation by the ICC annually try on average four times as many state agents such as police officers or low-level soldiers for physical integrity abuses, including torture and sexual violence, than do other African nations experiencing violent conflicts. This finding is potentially significant, since domestic human rights trials in other parts of the world are associated with modest, long-term improvements in human rights protections. (9)

    The article also offers a theoretical explanation for this unexpected result. The launch of an investigation by the ICC prosecutor triggers a "willingness game" between ruling coalitions and reformer coalitions in the target country. The former seek to demonstrate their readiness to comply with international human rights law, while the latter aim to expose these efforts as a pretense. In response to the ICC's investigations, reformers push for what we call gap-filling litigation. The combination of government strategy and pressure from reformers contributes to an increase in domestic human rights prosecutions. Importantly, this theory does not assume that state leaders in fact desire to cooperate with the Court. Nor does the theory hinge on the ICC's ability to coerce states into positive change. Rather, it is the strategic interactions among the ruling and reformist coalitions, domestic courts, and civil society groups that create the incentives to prosecute lower-level officials who commit human rights abuses.

    Section II of this article briefly explains the complementarity principle and reviews both positive and negative assessments of ICC operation. Section III explains in greater detail our process-focused theory for why ICC investigations lead to an increase in domestic prosecutions of human rights offenders. Section III also presents qualitative evidence from select countries subject to ICC investigations, indicating the workings of this mechanism in practice. Section IV offers a straightforward test of this theory based on newly available quantitative evidence and a dataset specifically tailored for this article. Section V concludes with implications of our findings for the legitimacy of the ICC.

  2. LITERATURE REVIEW

    The principle of negative complementarity limits the ICC, so that (absent a UN Security Council reference to the ICC) the Court cannot act in a particular case where a state with national jurisdiction over the alleged conduct and the alleged perpetrator demonstrates the legal ability and practical willingness to move forward with adequate and appropriate national legal action. (10) Beginning in 2009, the Office of the Prosecutor announced a prosecutorial strategy of "positive complementarity," which it defined as "a proactive policy of cooperation aimed at promoting national proceedings." (11) The OTP would encourage and publicly disclose national reforms and proceedings during the preliminary examination stage, increasing pressure on officials to investigate and prosecute atrocities.

    Anecdotal evidence supports the idea that external judicial pressure resulting from the exercise of universal or passive personality jurisdiction by foreign courts engenders domestic human rights trials. (12) Spanish prosecutions of political and military leaders in Latin America, for example, are thought to have invigorated subsequent criminal trials of other officials in the region. (13) Whether a similar effect arises from the ICC's exercise of jurisdiction has yet to be theorized or studied empirically.

    Three related literatures are relevant to this issue. First, a number of studies theorize a link between the ratification of multilateral human rights agreements and improvements in rights protections. (14) Other studies find a growing gap between commitments to these treaties and patterns of compliance, which they attribute to cheap talk and costless promises by abusive regimes. (15) Most of these studies treat domestic courts and patterns of litigation as fixed rather than changing, or as untested theoretical mechanisms linking ratification to changes in state behavior. (16) One exception is Dancy and Sikkink, who show a correlation between increased ratification by a state of treaties with individual criminal accountability provisions, including the Rome Statute, and likelihood of prosecutions in that state of its own officials for conduct related to violations of human rights. (17) This line of research has yet to identify the mechanism that leads to an increase in accountability. For example, does ratification of the Rome Statute positively influence human rights practices in countries with already high levels of judicial independence or in legal systems with lawyers and judges already experienced in human rights litigation; or do a state's interactions with the ICC change its existing judicial practices?

    A second literature considers why political leaders initiate or support domestic judicial proceedings against human rights violators. For example, studies find that countries who transition from a highly repressive government to a new democratic regime are likely to conduct prosecutions, (18) as are states whose legal systems authorize private citizens to bring criminal prosecutions against state agents. (19) However, region-specific variations make global generalizations difficult...

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