What Is Complementarity? Q & A with James A. Goldston

Complementarity. It’s a mouthful, no question. But when you spend time with the international law set, the concept comes up over and over. If you listen carefully, you might gather that the idea is at the forefront of efforts to make justice available and responsive to people around the world.

But the question remains: What, exactly, is complementarity?

For a proper introduction, we turn to James A. Goldston, executive director of the Open Society Justice Initiative.

Complementarity is a new concept for many people. How would you define it?

At its most basic level, complementarity is really just the role of domestic courts in holding accountable perpetrators of the most serious crimes—war crimes, crimes against humanity and genocide.

The concept—using that language, “complementarity”—comes from the Rome Statute, the 1998 treaty that created the International Criminal Court, or ICC. In that sense, the concept is built into the very framework of the court.

Complementarity is the statute’s way of talking about the International Criminal Court’s relationship with national or domestic courts. The statute provides that the ICC act in a manner that is complementary to national courts. The thinking is, in the broad effort to ensure accountability for serious crimes, both the ICC and domestic courts have a role to play. Because the ICC is able to try only a few cases at a time, the vast majority of perpetrators of such crimes must be tried in national systems.

How is the division of labor understood?

According to the Rome Statute, the ICC can only act when a domestic court is unable or unwilling to do so. For example, after a war, when institutions break down or when conflict literally wipes out the people—the lawyers and judges—who would be the ones to work on bringing legal charges against perpetrators.  The ICC can also act when a domestic court is unwilling to. For instance, when political leaders show no inclination to go after high-level suspects. These are the cases the ICC is expected to take on.

We rely on national courts to try all other cases, including of the most serious crimes.

Serious crimes—

Serious crimes like rape and murder and kidnapping that take place in the context of armed conflict or in the context of widespread and systematic abuses, like crimes against humanity.

The problem is in too many places around the world, courts lack the capacity and governments lack the will to take on these crimes and we are left with an impunity gap—crimes without justice.

Complementarity is about building the structures that can fill that gap. It’s the effort to create domestic accountability for international or serious crimes.

So, complementarity is about expanding the reach of justice.

Complementarity is, in part, a new way of addressing a very old problem. The course of human history has largely been a history of impunity. And we have only recently been taking very small but important steps to address the issue.

Why is addressing impunity important?

Because continued impunity undermines the rule of law. It prevents stability. It prevents democracy. It prevents societies from developing in an orderly way. And it has terrible human consequences.

Impunity has an enormously debilitating impact on victims. For people who have suffered sexual violence or whose family members have been killed, impunity is a continuing violation of these people’s rights to closure, to know the truth about what happened, and to ensure that the perpetrators of these crimes are punished.

I recall when I was working in Bosnia, in 1996, the year after the Dayton agreement was signed, and a number of alleged war criminals were still on the loose. It was widely known that they had not been arrested. And it was very palpable, the fear that this instilled—their continued presence on the streets instilled fear in ordinary people. And one could sense that. One could feel that in everyday conversations. It was enormously important when, a couple of years later, NATO troops were used to arrest war criminals indicted by the International Criminal Tribunal for Yugoslavia. That began to change some of the atmosphere. It was not perfect, but it was a start.

What might complementarity look like in practice?

There are actually many positive examples to build on. We’ve seen complementarity work well in Peru, with the trial of Alberto Fujimori, and in Yugoslavia, where domestic Bosnian prosecutors and judges were able to carry forward work that the international tribunal has not been able to do.

One of the most notable recent successes has been the mobile court project, which the Justice Initiative has been assisting in the Democratic Republic of Congo. The Congo has endured millions of deaths due to conflict in recent years. The International Criminal Court has been active in the country and is currently trying several high-profile figures—including Thomas Lubanga and Germain Katanga—in The Hague. But with the court’s limited capacity, investigations have focused on just a few defendants.

The mobile courts, then, have stepped into the void. They’ve been created to help domestic Congolese judges, prosecutors, and lawyers address other perpetrators of serious crimes. So, for example, in January of this year—on New Year’s Day, in fact—a mass rape occurred in the town of Fizi, in the eastern Congo. Within two months, a mobile court had conducted trials that were, by all accounts, fair and in accord with due process. It convicted a number of army officers of rape and other crimes of sexual violence and imposed appropriate sentences.

The ability of a court to conduct trials and identify perpetrators and impose sentences, within two months of the crime, was extraordinary—and at a cost, frankly, that was a fraction of what the International Criminal Court would have been able to do.

What stands between us and complementarity in practice? What are the obstacles?

The two primary obstacles are, on the one hand, technical and, on the other, political.

The technical obstacle is the fact that very often investigators at the national level do not have adequate training in how to investigate certain kinds of crimes. They may not be skilled in the use of forensic evidence, in the analysis of fingerprints or DNA evidence. Or there may be insufficient infrastructure to house archives or things like that.

The political obstacles are, of course, ever present, because it is often the case that those who commit serious crimes have a great deal of power. In many contexts, those who commit serious crimes are senior members of governments. And obviously, when that is the case, there is an enormous political challenge to ensuring accountability for what they’ve done.

This seems the more challenging of the two obstacles. How do you overcome a lack of political will?

There is no magic bullet. But we have learned that a combination of factors is central to generating and sustaining political will. Foremost is an empowered domestic civil society capable of demanding accountability from government. This may include human rights NGOs, independent journalists, and courageous members of the bar. Their efforts must be reinforced by consistent diplomatic pressure from the international community. Finally, concrete examples of complementarity in action—which show that it is indeed possible to bring leading perpetrators to account—are important as well.

In addition to the mobile courts, how is the Justice Initiative involved in work on complementarity?

The Open Society Justice Initiative is doing a number of things.

We are documenting the present state of the problem. There is, of course, already an enormous amount of money going to support the rule of law in countries where serious crimes are taking place. And yet not all of that assistance is taking on board the important concern of how best to address accountability for serious crime.

So, we have looked at examples in the Democratic Republic of Congo, in Uganda, in Kenya—all three countries that are under the microscope of the ICC at present—to look at what kinds of rule of law aid have been provided and how well they have they addressed the challenges of complementarity specifically.

We are also working with the European Commission to develop a toolkit on complementarity. Once donors and governments are willing to say, “Okay, I get it, complementarity is something I need to take into account in my work, but how do I do it?” We want to be in the position to offer some answers.