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Hello everybody, this is Marshall Poah. I'm the

0:32

editor of the New Books Network. And I'd

0:34

like to tell you that we have a

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new and improved website. It has two new

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them. Please visit the site today. Welcome

1:01

to the New Books Network. Hello

1:05

and welcome to another episode on the

1:07

New Books Network. I'm one of your

1:09

hosts, Dr. Miranda Melcher, and I'm very

1:11

pleased today to be speaking to Dr.

1:13

Patrick Labuda about his

1:15

book titled International Criminal Tribunals

1:17

and Domestic Accountability in the

1:19

Court's Shadow, published by Oxford

1:22

University Press. This book

1:24

does a really interesting deep

1:27

dive and investigation of

1:29

international criminal tribunals, many of which popped up

1:31

in the 1990s around,

1:34

for example, Rwanda or Srebrenica or

1:36

things like that. But there

1:38

are more than just those. There's actually kind of

1:40

a whole system going on which

1:42

has some really interesting political effects, political

1:45

interactions and much more. So Patrick, thank

1:47

you so much for coming onto the

1:49

podcast to tell us about your book.

1:53

Yeah, hi Miranda. Thanks. Thanks so much for having me. Could

1:56

you please start us off by introducing yourself

1:58

a little bit and explain? explain why

2:00

you decided to write this book? Sure,

2:03

sure. So I'm currently a

2:05

researcher on the

2:08

Memocracy Project at

2:10

the Polish Academy of Sciences. And

2:15

I'm actually a lawyer and historian

2:17

by training. The project looks at

2:19

memory from a regional

2:22

perspective, Eastern European perspective. But

2:26

myself, I'm a lawyer and a historian,

2:28

and I've always kind of been more

2:30

interested in the

2:33

social aspects of law, how law

2:36

operates in society, also sort of the

2:38

political dimensions of law. And

2:41

this kind of naturally got

2:43

me interested in international law, which

2:45

is a more political field of

2:48

law. What's

2:55

interesting about this is that I actually came

2:57

to international law more as a practitioner, so

2:59

I was sent to work in

3:02

the Democratic Republic of Congo, then Sudan

3:05

and South Sudan. And

3:07

then based on sort of my experience

3:09

in those contexts, I decided to go

3:12

back and write a PhD. So

3:15

this book that we're going to

3:17

discuss is actually based on sort

3:19

of the PhD research

3:22

that I did, but then that builds also

3:25

on my professional experience

3:27

in several African countries. Hmm,

3:31

very interesting combination. Thank you for

3:33

giving us that background. It's

3:36

not surprising to me, especially hearing

3:38

that, that this book does what

3:40

books that I tend to like do, which is

3:42

kind of poke at something and go, hang on,

3:44

we've got some assumptions. Maybe

3:46

we need to take more of a look at them. So

3:49

can you tell us what assumptions your

3:51

book is interrogating and why you think

3:53

they need investigation? Yeah,

3:56

so I think that's a really good question.

3:58

I mean, The

4:01

assumption is really something that I

4:04

came across in my

4:07

work. So when I was

4:09

actually working as a practitioner, and

4:12

specifically I was based at the time

4:14

in the Democratic

4:16

Republic of Congo working on

4:20

justice reform, broadly speaking.

4:23

And one assumption that I came

4:26

across a lot was that complementarity

4:29

is a positive thing.

4:32

Complementarity is something that I'll explain in a moment. But

4:35

it's really this idea that justice

4:38

for the most serious crimes should

4:42

be done domestically. So

4:44

it's better if we do

4:46

justice for serious crimes like

4:49

genocide, war crimes, crimes against

4:51

humanity at the national level,

4:53

closer to the victims, closer to

4:56

the side of the crimes. And

4:59

I have to admit that when

5:01

I was sent to this context,

5:04

so first to the DR

5:06

Congo, but then later on I

5:08

was in Sudan and South Sudan

5:10

where this assumption was also very

5:12

common, I found it

5:15

a little counterintuitive. I

5:17

found it counterintuitive for

5:19

two reasons. The first

5:21

being that you

5:24

could see the challenges that the

5:27

justice systems in those

5:29

countries faced. And then

5:31

the second issue

5:34

was myself. I come from

5:36

a post-authoritarian context, so from

5:38

Poland, where

5:40

I was very aware of the

5:42

fact that we struggled to

5:46

deal with the past, deal with crimes

5:48

committed in the past. Our justice system

5:50

really struggled with these issues. So I

5:54

found this assumption that justice

5:56

should be done domestically, ideally,

5:58

and then international institutions like

6:00

the International Criminal Court should only

6:02

step in as a Backstop

6:05

a little counterintuitive and

6:08

and so that got me thinking about Complementarity

6:11

about sort of the relationship between the

6:13

international and and the domestic and that's

6:16

that's kind of how the project was born

6:18

I you know as I mentioned a moment

6:21

ago. I later decided to write

6:23

a PhD about that Thank

6:25

you for kind of going into that in a

6:27

bit more detail Can we

6:29

now kind of poke out that even

6:32

further and tell us what you mean

6:34

by positive? Complementarity and why you think

6:36

it became so dominant Yeah,

6:39

so so complementarity is really a bit

6:41

of a buzzword.

6:43

So For

6:46

international lawyers for lawyers generally, I think you

6:48

know, this is a word that we hear

6:50

a lot Maybe for people who are not

6:52

necessarily trained as lawyers.

6:54

It might be worth unpacking this I

6:56

mean, it's it's a bit of an

6:58

empty signifier It's it's a word that

7:01

means a lot of different things

7:03

to a lot of different people and

7:06

and that's partly by design Though

7:08

the word is not even in

7:10

the Rome statute of the International

7:12

Criminal Court and

7:14

yet that Everybody

7:16

who works on international criminal law

7:18

in this field Knows

7:21

what it means and and so it's it's

7:24

it's a bit surprising if you think about

7:26

it that way that that a word That's

7:28

not even in the document

7:31

that you know that that that is sort

7:34

of the foundation of the International Criminal Court

7:36

is is is a word

7:38

that that describes the the

7:40

the court's operations and You

7:45

know in a nutshell the idea

7:47

behind complementarity is that States

7:50

domestic justice systems have

7:53

priority to prosecute and

7:55

only if they do not You know

7:58

if they fail to prosecute international crimes

8:00

genocide war crimes, crimes against humanity, for

8:02

whatever reason, lack of capacity, lack of

8:05

political will or they just don't feel

8:07

like prosecuting domestically, that's when

8:09

the international criminal

8:13

court, the international level will step

8:15

in. So it's a bit

8:17

like in global

8:19

governance scholarship, it's a bit like

8:21

subsidiarity. It's this idea that you

8:23

do things at the

8:25

domestic level and then the international

8:27

level steps and if the domestic

8:30

level can't handle it. Now

8:32

positive complementarity, now more specifically

8:34

in the international criminal law

8:36

context is

8:39

thought of as something positive.

8:42

So complementarity, positive complementarity, for

8:44

me some lawyers

8:46

try to make distinctions between these

8:48

terms but I think positive complementarity

8:50

and complementarity are essentially the same

8:52

thing and it's this idea that

8:55

this relationship between the international and

8:57

the domestic level is something good.

9:00

It's a good thing, it's better

9:02

than the alternatives because it encourages

9:04

states to prosecute. The

9:07

international level, the international criminal court

9:10

casts a shadow over states. It

9:14

encourages them to prosecute,

9:17

it helps them to build their

9:19

domestic capacity, it helps states to

9:22

reform their domestic legislation.

9:26

And so in general it

9:28

is a positive relationship and

9:31

the only thing I'll mention is

9:34

that complementarity was born

9:36

in sort

9:39

of the negotiations leading up to

9:41

the Rome Statute which

9:43

is the treaty that created

9:45

the international criminal court. But

9:48

since then it's become sort of this,

9:50

as I said earlier, a buzzword. It's

9:53

sort of an empty signifier that's applied

9:55

to the different

9:57

tribunals, not just the international criminal

9:59

court. when people talk

10:01

about the Special Court for

10:04

Sierra Leone or the International Criminal Tribunal

10:06

for Rwanda, for the former

10:08

Yugoslavia, these are all different

10:10

international criminal tribunals, and

10:13

yet they don't have complementarity

10:15

in their statutes, but the word

10:17

is applied to them sort

10:20

of just because it's become

10:22

a general term to describe

10:25

the relationship between tribunals and

10:27

the domestic level. And

10:30

as you've just hopefully explained,

10:33

that has some problems, that

10:35

has some weaknesses beyond just

10:37

the kind of, I

10:39

guess, looseness of the use of the term really being

10:42

a big one. You, hopefully

10:44

in the book, provide an alternative way

10:46

of thinking about this and especially of

10:48

kind of talking about and using this

10:50

language. Can you introduce us

10:52

to your alternative vocabulary and framework

10:54

for this, these interactions? Sure,

10:57

sure. So, one of the

10:59

claims that the book makes, but

11:02

I'm not the first person to say

11:04

this. In fact, there are many scholars

11:07

who have identified sort of the

11:09

problems with the language of complementarity

11:12

that it's

11:14

vague, it

11:17

misleads potentially. But

11:19

one of the things that this book does

11:21

and where hopefully it makes a

11:24

small contribution to the literature is that it

11:27

provides an alternative way of

11:29

thinking about these questions. So,

11:31

instead of using

11:34

complementarity as a word to

11:36

describe different relationships

11:38

between international tribunals

11:40

and domestic actors, domestic

11:42

courts, domestic prosecutors, domestic

11:44

civil society, it proposes

11:48

a tripartite

11:51

typology of relations.

11:53

It's a framework.

11:56

And I propose three different

11:58

terms To... Describe. The.

12:01

Different things that complementarity does one

12:03

is. Aeration. Accommodation

12:06

and isolation. So.

12:09

Aeration is sort of this

12:11

idea. It refers to kind

12:14

of push pull relationships interactions

12:16

between states and international criminal

12:19

tribunals where. The.

12:21

Two levels. So the international

12:23

and domestic adjust their behavior

12:25

in response to what the

12:27

other level is is doing.

12:30

The the other. Ideas,

12:33

accommodation, and so this is sort

12:35

of a consensual relationship where. Both.

12:38

Levels decide not to interfere with

12:40

one and others worked. Out.

12:42

So they're not really challenging one

12:44

another, they're operating side by side.

12:46

But it's a very consensual relationship

12:48

and then isolation. Is

12:51

sort of hour or more antagonistic

12:53

hostile relationship where. Disagreements.

12:55

Between the two levels lead to

12:57

have you know potentially. Or

13:00

even a breakdown of of cooperation

13:02

the most Sort of. It's the

13:04

most extreme. Ah, Example

13:07

which would be withdrawals from the

13:09

Rome Statute. So there are a

13:11

few states that have decided. Ah,

13:14

We don't like what the International Criminal Court

13:16

is doing and therefore we are just going

13:19

to. Put. An end to

13:21

our cooperation. We're going to

13:23

withdraw from the founding treaty

13:25

and we are no longer

13:27

playing this game. So so

13:30

that's isolation. And obviously you

13:32

know these three. These three

13:34

labels so aeration, accommodation, and

13:36

isolation. Of. These are

13:38

these are ideal types. These are

13:41

ideal types that I propose as

13:43

an alternative way of thinking about

13:45

what is used. The. Are.

13:49

Described. As complementarity and and

13:51

you know, essentially. Kind. Of

13:53

summarize, the books argument that the

13:56

argument is that. when

13:58

people talk about compliment they usually

14:00

think of iteration, that's kind of the

14:03

natural association that people make and that's

14:05

why I described it as

14:07

a positive, a healthy relationship

14:10

where the international and the

14:12

national levels are interacting with one

14:14

another, they're adjusting their behavior in

14:16

response to what the other level

14:18

is doing. But my argument

14:20

is that in fact, in practice, if

14:22

we look at the different international tribunals

14:25

and how they've operated, most

14:27

of it is accommodation. There's

14:29

a bit of isolation, there's a bit

14:31

of iteration, but most of it is

14:34

actually accommodation. So the framework is trying

14:38

to kind of reframe

14:40

how we think about these questions.

14:44

Thank you for introducing it to us

14:47

and giving us kind of that big

14:49

picture overview because I now want to

14:51

get into the details of what this

14:53

kind of helps us better understand on

14:55

the ground. Can we start with Cyrilia?

14:58

Sure, sure. So

15:00

yeah, so I think it's really

15:03

helpful to kind of unpack what

15:06

this means in practice because

15:08

of course, especially for people

15:11

who have not necessarily studied international

15:14

criminal law, the statutes of

15:16

international tribunals, all that might

15:18

sound quite vague. But let's

15:21

take a case like the

15:23

Sierra Leone. So Sierra Leone

15:25

is a country where mass

15:28

crimes happened in

15:31

the 1990s. There

15:33

was a civil war from the early 1990s up

15:35

until 2002. And

15:41

at some point, this was before the

15:43

International Criminal Court was established. There

15:46

was a decision made to create

15:49

the special court for Sierra Leone. So

15:51

the special court for Sierra Leone was

15:55

established in 2002 to deal with crimes that

15:59

were committed. before 1998, 1998 was when the Rome Statute came

16:01

into force. But

16:05

like I just said, it

16:08

was too late for the International Criminal Court

16:10

to deal with most of the crimes committed

16:12

in Sierra Leone and a principle of criminal

16:15

laws that you should not apply

16:18

criminal law retroactively. And

16:21

therefore, the ICC could

16:25

not deal with these crimes. Now, the

16:28

special court for Sierra Leone had

16:32

something that's called in the literature

16:34

a hybrid mandate, right? So it's

16:36

not complementarity. Complementarity is this relationship

16:39

that we find in the Rome

16:41

Statute of the International Criminal Court.

16:44

But the special court for Sierra Leone had

16:46

something we experts

16:49

usually refer to this as a hybrid

16:51

mandate. And the idea

16:53

behind this hybrid mandate is very

16:55

actually similar in many ways to

16:58

complementarity. It's this idea that by

17:00

mixing the international and the

17:03

domestic, so by mixing elements of

17:05

international and domestic law in the

17:07

mandate of the special court for

17:09

Sierra Leone, by putting

17:11

this hybrid court in

17:14

Sierra Leone so close to

17:16

the side of the crimes,

17:18

there would be a spillover effect.

17:21

There would be a positive effect

17:23

on the domestic justice system in

17:25

Sierra Leone. The victims would see

17:28

justice done closer to home. And

17:31

therefore, there would

17:33

be this special court for

17:36

Sierra Leone would have a beneficial

17:40

impact on justice

17:44

in that country. And

17:46

what this book does is it

17:48

kind of tries, it uses interviews,

17:51

it assesses the literature, but it

17:53

also uses interviews with different stakeholders

17:55

in Sierra Leone to understand

17:58

whether that happened. A

18:00

Going to just give two

18:02

examples to illustrate. What?

18:05

Did and did not happen

18:07

or in so. One example

18:09

is Ah is at the

18:11

collocation of personnel. So the

18:14

Special Court for Sierra Leone

18:16

hired not just International prosecutors,

18:18

judges and experts but also

18:20

Sierra Leonean prosecutors, judges, investigators

18:22

and this is different from

18:25

other tribunals. At other tribunals

18:27

often times you would not

18:29

involve. Local staff

18:31

people from the country where the crimes

18:33

were committed because there was a feeling

18:36

that that would somehow taint the process

18:38

since in in Sierra Leone. For

18:40

the first time. That. Option

18:43

was directly in the mandate and idea

18:45

there was that. Okay, we are going

18:47

to build the capacity of. At

18:49

the the Sierra Leone? yeah in

18:52

our justice system. Of

18:54

the another thing that was put in

18:56

that in the statute of the Sierra

18:58

Leone a special court was that. Okay

19:01

is that.the. court. The prosecutor of

19:03

that court would have the power

19:05

to. Prosecute.

19:08

Not just international crimes, genocide,

19:10

crimes against humanity, and war

19:12

crimes, but also certain. Ordinary.

19:14

Sierra Leone in France. So.

19:17

Murder. I. Forget

19:19

now what what were the the specific

19:21

out crimes from the Sierra Leone and

19:23

Justice system but there again the idea

19:25

was that by putting both types of

19:27

crimes in the statute. We. Would

19:29

also. The. Special court would be.

19:32

Ah indirectly encouraging domestic prosecutors

19:34

to take ownership of this

19:37

whole process and to emulate

19:39

a little bit what the

19:41

Special court was doing at

19:43

the international level at for

19:45

you know for the Sierra

19:47

Leone and prosecutors on their

19:50

and to. To. Also,

19:52

try and prosecute certain serious

19:54

crimes. Domestically. Now.

19:57

what my framework does is

19:59

so this is kind of bringing

20:01

it back to the overarching framework of

20:03

the book, it kind of allows us

20:05

to unpack whether this happened or not.

20:07

I mean, hybridity, the hybrid mandate, as

20:10

I just explained, the idea

20:12

was that these things would happen. But

20:15

if you look a little closer,

20:17

you realize that the special court

20:19

for Sierra Leone didn't really have

20:21

this iterative impact. So the idea

20:23

of iteration here that there would

20:25

be a push-pull relationship between the

20:27

domestic and the international level, it

20:29

didn't really happen that way. To give

20:32

just a few examples, oftentimes

20:35

Sierra Leonean domestic

20:37

staff, as soon as they were hired

20:39

by the international court, by the special

20:42

court, they would then go

20:44

on to more lucrative positions elsewhere.

20:46

They would not return to the domestic

20:48

justice system to share sort of their

20:50

expertise with local magistrates.

20:57

Another problem

20:59

is that some of the crimes

21:01

that were prosecuted by the special

21:03

court, they were just too different

21:05

from what domestic prosecutors were

21:07

doing. And so in the end,

21:09

this knowledge that was acquired

21:12

through the special court was not

21:14

really, didn't filter back into the

21:16

domestic justice system. Another problem is

21:19

that the special

21:21

court in many ways, it didn't encourage

21:24

domestic prosecutors to

21:26

prosecute domestically. On

21:28

the contrary, the effect was that

21:31

in a way, the domestic judges,

21:34

prosecutors felt like, okay, we don't have to

21:36

do this because somebody else is taking care

21:38

of it. So it almost had this dissuasive

21:41

effect, which I call isolation, a

21:44

negative sort of dissuasive effect on

21:47

the domestic justice system. So yeah,

21:50

you know, generally speaking, the

21:52

way the special court

21:54

interacted with the Sierra Leonean

21:56

domestic justice system did not

21:59

really, conform to

22:01

these expectations that were

22:03

embedded in the special

22:05

courts mandate, this hybrid mandate was

22:08

supposed to have this spillover effect

22:10

on the domestic justice system. But

22:13

in practice, instead of

22:15

iterative relationships, we had

22:18

isolationist, almost, relationships. There was some

22:20

accommodation there between the two levels,

22:23

but it didn't have

22:25

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for details. So

23:01

what you've just sort of taken us through with

23:03

Sierra Leone, I think, as you said, a really

23:05

helpful understanding, not just of kind of what was

23:08

meant to happen, but what actually did happen. What

23:11

about in Rwanda? Yeah,

23:13

so Rwanda is another interesting

23:16

case study because, so I

23:18

look at three cases in this

23:20

book. I compare Sierra Leone

23:22

to Rwanda, and then

23:24

the last case is the Democratic Republic of

23:26

Congo, so I'll

23:29

come to that later. But Rwanda is

23:31

a really important case because we have

23:33

here the International Criminal Tribunal for Rwanda,

23:36

which was set up in

23:38

the 1990s, again, before the

23:40

International Criminal Court. And

23:43

the ICTR, so the

23:45

Rwanda Tribunal, received

23:48

a very different mandate than

23:51

the ICC. So

23:53

the ICTR's mandate was

23:55

primacy. Oftentimes people, when

23:57

they describe primacy, it's really important.

23:59

really the opposite of

24:02

complementarity. Here the idea is

24:04

that the international tribunal has

24:07

priority to prosecute and it

24:09

doesn't really have to worry

24:11

about what domestic jurisdictions are

24:13

doing. It didn't really have to worry

24:16

about the Rwandan justice

24:18

system. And

24:20

this has come to be

24:22

seen very negatively as sort

24:24

of a very isolationist relationship

24:27

between that

24:30

tribunal, the Rwandan tribunal and

24:34

the Rwandan justice system. Now,

24:36

and that later changed. That later

24:38

changed afterward. There was a procedural

24:40

rule called Rule 11 BIS that

24:44

was adopted. I mean, we don't

24:46

need to get into the details

24:48

because this is less interesting. But

24:50

then after that procedural rule was

24:53

adopted and cases started being transferred

24:55

from the Rwanda tribunal

24:57

in Arusha back to the

24:59

Rwandan justice system, this

25:02

came to be seen very

25:04

positively as complementarity in action.

25:06

This was described very often

25:09

in the literature as positive

25:11

complementarity. There the Rwanda tribunal

25:13

was working with the Rwandan

25:15

authorities. Now again, what

25:18

my book tries to do

25:20

is really trace these interactions

25:23

between the Rwanda tribunal

25:25

based in Arusha, Tanzania and

25:29

then the Rwandan justice system over

25:31

a 20 year period. And by

25:34

using again this vocabulary of iteration,

25:37

accommodation and isolation,

25:40

it essentially

25:42

nuances this very negative

25:46

perception of primacy on the one hand

25:48

and then the very

25:50

positive perception of complementarity. It's

25:53

essentially saying, the book is

25:55

essentially saying it's more complicated

25:58

than primacy bad complementarity. good.

26:01

And I'm not going to get into sort

26:03

of the details of the argument but some

26:05

of these issues might be

26:07

interesting just sort of from

26:10

a socio-legal perspective, just a

26:12

description of the things that

26:15

happened in

26:17

Rwanda. You know,

26:19

one interesting example that I

26:21

uncovered through my research is

26:23

how the Rwandan

26:26

authorities in

26:28

the 1990s, so this was after the RPF came

26:30

to power in 1994, it

26:33

took control of the

26:35

country and oftentimes the

26:37

RPF, so the government, this is

26:39

the Rwandan patriotic front which remains

26:42

in power to this day, was

26:45

very negatively predisposed

26:49

to the ICTR. So there was a

26:51

lot of tension between the Rwandan tribunal

26:53

in Arusha and then

26:55

the new authorities in

26:58

power in Rwanda and they

27:00

would complain oftentimes, the new

27:02

authorities, about

27:04

the ICTR stealing cases

27:07

from the Rwandans. One

27:09

very prominent case is Bagosora

27:12

who many years

27:14

later was convicted and is currently

27:16

in jail for genocide but

27:21

Bagosora was arrested in Cameroon

27:23

at the request of the

27:25

Rwandan authorities and the ICTR

27:27

came and said, look we

27:29

have primacy, you need to

27:32

give us this case, don't

27:34

send Bagosora to Rwanda. And

27:36

this is usually, you know, given

27:38

as an example of the negative

27:40

effects of primacy, that primacy really

27:42

dissuaded the Rwandans from

27:44

doing justice on their own terms

27:47

domestically, which is of

27:49

course partly true in this case, I mean if

27:51

you think about it in those terms, but

27:54

primacy also had an underappreciated effect which

27:56

is that the threat of the Rwandan

27:58

regime, the threat of the Rwandan regime, of this

28:01

happening forced

28:03

the Rwandans to act

28:06

more quickly in Rwanda.

28:09

So they knew that there was this

28:11

risk that, okay, if we wait

28:13

too long, if we do not prosecute

28:15

people, there were hundreds of thousands of

28:17

people in pretrial detention

28:20

awaiting trial in Rwanda. They,

28:24

you know, the ICGR could theoretically come and

28:26

take these cases away. And so there

28:29

was a brief period in, this was 1995, 1996,

28:33

that changed very quickly later on for

28:36

a variety of reasons. But, you

28:38

know, I provide this example in the book to

28:40

illustrate that it's not

28:42

as simple as saying that primacy is just

28:45

a bad thing. I mean, there are cases

28:47

indeed where it did

28:50

things, you know, the mandate of

28:52

the tribunal contributed to

28:54

developments that are

28:56

questionable today people would, you

28:59

know, assess this as a questionable decision

29:01

to take this case away from Rwanda.

29:05

But it also had other underappreciated

29:08

effects. So

29:10

that's one thing. The other thing that then, you

29:12

know, the case study, the Rwanda case study gets

29:14

into is sort of how

29:16

the Rule 11-bis process unfolded.

29:20

And here, you know, I'm adding

29:22

a little bit to the literature, but this

29:24

has been explored quite a bit by a

29:26

variety of researchers. And most

29:28

people agree that this process of

29:31

sending cases back to Rwanda, so

29:33

there were people who were

29:35

indicted by the Rwanda Tribunal who were

29:37

in Arusha awaiting

29:40

trial. And then international prosecutors

29:42

decided, okay, we're going to send

29:44

these cases back. That

29:47

this whole process, sort

29:50

of almost diplomatic negotiations that

29:52

ensued over an extended period

29:54

of time between prosecutors

29:57

and judges in Arusha. And

29:59

then, well, Wandon prosecutors and judges in

30:02

Kigali, that this was,

30:06

generally speaking, a helpful

30:08

experiment. I mean, there were huge tensions

30:10

at the time. And if you look

30:13

at the literature, it's

30:15

not a simple story, again, of good

30:18

or bad. The book really

30:20

avoids those kinds of

30:23

characterizations because these things are extremely

30:25

complicated and very complex. But

30:28

generally speaking, if you take a step back

30:30

and now assess this with the benefit of

30:32

hindsight, you realize that the

30:35

interactions between these two levels helped

30:40

push the process

30:42

forward. So in Rwanda, one example

30:44

that is oftentimes given is the

30:46

fact that Rwanda abolished the death

30:49

penalty. And

30:51

scholars disagreed. It's

30:53

impossible to pinpoint

30:57

why this happened. Some

30:59

argue that it's not because

31:01

of the ICTR. But I think the better

31:03

view is, if you look at the totality

31:05

of evidence, that this would

31:08

not have happened when it did

31:10

happen without the encouragement,

31:12

the gentle encouragement of the

31:15

Rwanda tribunal. And so these

31:18

kinds of interactions between the

31:20

international and the domestic level

31:22

had certain positive effects for

31:24

the Rwandan justice system. Also

31:27

some maybe

31:29

more questionable effects. But

31:31

it's really a good example of

31:33

how the international and the domestic

31:36

level can interact and

31:40

adjust their behavior in response

31:43

to what the other side

31:46

is expecting. So yeah,

31:48

I think I'll stop there. I don't know to

31:50

what extent that example is clear.

31:52

But I'm also happy to get into more

31:55

details, if that's useful. No,

31:58

I think that gives us a sense of what the. looks

32:00

like in Rwanda. And of course, it's worth

32:02

reminding listeners that the book has loads more

32:04

detail on all of these cases. So what

32:07

we're doing now is in some sense is

32:09

a bit of a highlight to our suppose

32:11

to kind of get those big picture ideas.

32:13

So the examples you're including, I think help

32:16

on that front, if that makes sense. Could

32:20

I ask? I mean, the

32:22

problem, of course, is that there's so many

32:24

more questions I could ask about Sierra Leone or Rwanda,

32:26

you know, there's so much more that we could go

32:28

into, I don't want to leave out

32:30

the other country you investigate. So can we

32:33

turn to the DRC? Sure,

32:35

yeah. And the DRC, of course, is

32:37

very important in this book, because it

32:40

is this is the

32:42

International Criminal Court and the International Criminal

32:44

Court is is the

32:46

court that is currently operating the

32:49

special court for Sierra Leone has

32:51

shut down. The Rwanda Tribunal

32:54

has shut down. So these

32:56

are tribunals whose mandates have

32:58

finished. The International Criminal

33:00

Court, of course, is a permanent court that

33:02

continues to operate. It continues to operate to

33:05

this day in the Democratic Republic of Congo,

33:07

of course, it may, at

33:09

some point, finish its investigation, we kind

33:11

of expect that. At some

33:13

point, it's been involved in the DRC for for

33:16

over 20 years now. But

33:18

the ICC is important because

33:20

this is where complementarity that

33:22

this idea of complementarity was

33:25

born. And it's a case

33:27

study. It's one of the best case

33:29

studies that we have right now for

33:31

how complementarity at that

33:33

operates at the ICC. And

33:36

my my book takes a deep

33:38

dive. I think it's fair to

33:41

say that I did slightly more

33:43

research on the Democratic Republic of

33:45

Congo than I did on Sierra

33:47

Leone and Rwanda, primarily because more

33:49

research had already been done by

33:51

other researchers in those other countries.

33:53

And so I could really draw

33:55

on on an

33:58

existing literature, whereas the DRC, which is the He.

34:01

Ah has been less

34:03

studied. And.

34:06

And myself I worked their So's

34:08

also drawing on my own experience.

34:11

Ah in in writing this book. But.

34:13

But the Drc is is is

34:16

so is interesting Again the have

34:18

for the for you know what

34:20

it reveals about how the International

34:22

Criminal Court operates in in such

34:24

a context and and of course

34:27

the icy see today is involved

34:29

in ah twenty other countries has

34:31

open investigations also. Preliminary.

34:33

Examinations and what we observe in

34:35

the D or seem. Is.

34:38

That. The

34:40

case distribution is is. Primarily.

34:43

Consensual meaning oh what what one

34:45

observes there is that the I

34:48

see prosecutors seems to have read

34:50

some kind of. Tacit

34:52

agreement. To. What extent It's

34:55

tacit or explicit? We don't really know

34:57

because we don't have access to to

34:59

confidential documents, but there seems to be

35:01

some kind of agreement whereby. Dicey

35:04

see prosecutor. Gets.

35:07

Cooperation from the hose state

35:09

authorities to prosecute. A

35:11

handful of people. Ah

35:13

So investigations are conducted from

35:16

the Hague, evidence has collected,

35:18

and then. Ah, It. Arrest

35:21

warrants are issued and then

35:23

and the Drc the authorities

35:25

cooperated with his arrest warrants,

35:27

transferred suspects to at the

35:29

Hague for prosecution. But.

35:31

In exchange for that there seems to

35:33

be also have a reluctance on the

35:35

part of the icy see prosecutor to

35:37

to really look at what to the

35:40

domestic justice system is doing. So.

35:42

There doesn't seem to be. Any.

35:45

Trial. Monitoring process in place

35:47

which would assess okay. It.

35:50

Is whether you know the what

35:53

the Congolese are doing domestically prosecuting

35:55

domestically Whether that is. of

35:57

whether these prosecutions are jan

36:00

Whether this is something that maybe

36:02

should be taken away from the

36:04

Congolese because it does not meet

36:06

fair trial standards or for some

36:08

other reason is not

36:10

genuine. And

36:12

that kind of goes against the

36:15

idea behind

36:17

complementarity. Complementarity initially

36:19

the way it's conceived in the Rome

36:21

Statute, the way it's formulated in the

36:23

Rome Statute suggests that there should be

36:27

some kind of interaction between the prosecution

36:29

of the computer and the domestic authorities.

36:33

At least my research suggests that

36:35

that has not happened. Now

36:38

I kind of look at

36:40

the cases that have been prosecuted

36:42

domestically and I coined this term

36:45

in the book called unintended

36:47

diversionary complementarity which

36:51

is my hypothesis about the

36:54

effects that this has on

36:56

the domestic justice system. And

36:59

it's a hypothesis that I developed

37:01

based on the DRC

37:04

case study but I encourage other

37:06

researchers working on the International Criminal

37:08

Court to test

37:11

whether this hypothesis holds in

37:15

other contexts. So Venezuela,

37:18

Colombia, there are a number of countries where

37:22

we observe similar patterns and the

37:24

question is whether unintended diversionary complementarity

37:27

is a real thing across the

37:30

ICC's operations. And

37:32

to summarize the argument, the argument is

37:35

that because the

37:37

ICC takes this hands-off approach

37:39

it doesn't want to sort

37:42

of monitor or question

37:45

what the domestic authorities are doing

37:47

domestically. We see a

37:49

pattern of prosecutions at the domestic

37:52

level that target lower

37:54

level, mid level and low level

37:57

perpetrators for certain crimes but not

37:59

for the Domestic. The other crimes so.

38:02

For. Example: isolated instances of

38:04

rape as opposed to systematic.

38:07

Rate. Ah, and

38:09

so it creates impunity

38:11

for the most serious

38:13

perpetrators and. More. Serious

38:16

crimes and you know this

38:18

again. the argument here is:

38:21

That it's unintended diversionary complementarity because

38:23

instead of focusing on the most

38:26

serious crimes, the most serious perpetrators,

38:28

what we see is that easier

38:30

cases being dealt with domestically. Now.

38:34

I should qualify that would. One

38:36

observation of this is not a

38:39

critique of. Everything. That's

38:41

happened in the Drc. I think there's

38:43

been a lot of activity, much like

38:45

in Rwanda. I'm. A lot

38:47

of cases have been prosecuted

38:49

in the Drc which is

38:51

which is encouraging. So this

38:53

case this country the D

38:56

R Congo. Compared

38:58

to places like for example,

39:00

Sudan or Molly were very

39:02

few prosecutions had taken place.

39:04

The domestic prosecutions is is

39:06

generally speaking, a positive. Example

39:09

of complementarity so.

39:12

There. Is domestic activity. There is

39:15

a genuine effort on the part

39:17

of domestic prosecutors. And

39:19

judges to hold people accountable for

39:21

serious crimes that needs to be

39:23

acknowledged. Ah, But it. You

39:26

know? The research also reveals that there

39:28

is kind of a dark side ah

39:30

that that has been may be neglected

39:32

a little bit. By

39:35

us focusing too much on numbers, you

39:37

know how many people have been prosecuted

39:39

in the D R Congo as opposed

39:41

to. Who. Gets prosecuted?

39:43

Why? And And and and

39:46

for what? So. So

39:48

that's kind of have one of the take

39:50

away from some from not case study. in

39:54

that answer and you drew some comparisons

39:56

with the one that which i think

39:58

are quite helpful for understanding this and

40:00

obviously within your answers before between Sierra

40:02

Leone and Rwanda, etc. If

40:05

we sort of zoom out from the individual

40:07

cases, what were some of the big picture

40:09

trends that you noticed in doing this research

40:12

overall? Yeah,

40:14

so this is – there

40:17

are a few things that one observes. I

40:20

should say that

40:22

the research covers essentially

40:24

a 25-year period. So

40:28

the first tribunal, the Rwanda tribunal was

40:30

set up in 1994. At

40:34

the end of 1994, it started operating a

40:37

few months later.

40:39

But up until my

40:41

research ends in approximately 2020. And

40:46

so it's taking stock in many ways of 25 years

40:49

of developments in the field of

40:51

international criminal law. And

40:54

one big shift that I

40:56

noticed based on these case

40:58

studies and then also sort

41:01

of the literature

41:03

around these tribunals is rhetorical

41:05

in nature. The big

41:07

shift that this research draws

41:10

attention to is how

41:13

international criminal law is increasingly

41:16

presented as something that is done

41:19

together with state actors. So it's

41:21

there to support the state in

41:24

prosecuting international crimes through

41:27

complementarity at the International Criminal

41:29

Court. Whereas previously, especially

41:31

with the Rwanda tribunal when it

41:34

was set up, the assumption was

41:36

that we're kind of acting against

41:38

the state. The state is not

41:40

to be trusted. The state is

41:43

suspicious. It cannot do

41:45

fair trials domestically. I'm

41:49

describing this shift. I'm not now

41:51

expressing an opinion about whether the

41:53

shift is good or bad. It's

41:56

just a complicated topic. It's

42:00

a real shift in

42:03

the way we think about

42:05

international criminal law and the

42:07

role of international criminal tribunals

42:09

versus domestic courts. Domestic

42:11

courts are now seen

42:14

as the first responders, the

42:16

first line of defense. And

42:19

that's a huge development in 25 years.

42:23

And that has knock-on effects

42:25

because increasingly the way international

42:27

criminal law is rationalized is

42:29

as almost a capacity-building

42:31

project. It's about building

42:34

state capacity. So

42:37

we need to make sure

42:39

that domestic prosecutors and judges

42:41

have the capacity to prosecute

42:43

these serious crimes, genocide, war

42:46

crimes, crimes against humanity. But

42:49

what's missing oftentimes is a

42:53

willingness to kind of to

42:55

look to peer beyond technical

42:58

capacity-building and ask to

43:00

what end. So what

43:03

is the goal? Why

43:06

are we building this capacity

43:08

aside from the unobjected, schoonable

43:10

goal, of course, of holding

43:12

perpetrators of serious crimes to

43:14

account? What

43:16

is happening? What is the

43:18

effect and what

43:20

are the political effects of this

43:22

focus on domestic justice? And here

43:25

the book again uses

43:27

both the Rwanda case study and the

43:30

DRC case study where lots of

43:33

prosecutions happen domestically to

43:36

ask this question about what

43:39

political effects has this had

43:41

at the national level. And

43:44

in particular, one of the concerns I

43:46

express is that this may be promoting

43:50

authoritarian tendencies, the use of

43:52

criminal law, criminal punishment to

43:55

deal with these

43:57

serious crimes to

43:59

deal with. with legacies of

44:02

abuse and injustice in contexts

44:05

like Rwanda and the

44:08

DRC may paradoxically have

44:10

not sort of an emancipatory

44:12

but almost an authoritarian political

44:14

side effect. And this is

44:16

obviously most visible

44:21

in Rwanda for people who are

44:24

familiar with the Rwandan domestic context,

44:26

the way in which the government

44:30

in power that I mentioned earlier,

44:32

the Rwandan patriotic front has

44:35

been able to use the criminal law

44:37

to consolidate its authority.

44:40

But even in the Democratic Republic

44:42

of Congo, which is a very

44:44

different context, I

44:46

express certain

44:50

concerns about the way in

44:52

which criminal law is

44:54

used, as I explained

44:56

earlier, to prosecute certain people but

44:59

not other people. And

45:01

oftentimes it's really the political elites,

45:03

the people who are most connected,

45:05

most well-connected in

45:07

that domestic context who can escape the

45:11

scrutiny of the courts

45:13

and thereby paradoxically, instead

45:15

of challenging state power,

45:17

impunity, we're

45:19

creating a system

45:23

whereby impunity persists for

45:26

certain people. So the

45:28

research is really trying to kind of draw out

45:31

these unintended effects,

45:33

these unintended consequences. Nobody

45:36

doubts that international criminal law has

45:38

noble goals holding people to account

45:40

for the most serious crimes. These

45:43

are unobjectionable goals, and I'm not

45:46

trying to call into question

45:48

people's motives, people who work on these

45:50

issues. On the contrary, I

45:53

consider myself someone who

45:55

belongs to that community and

45:58

wants to you

46:00

know, to use the law for progressive

46:03

ends. But when

46:05

you take a closer look at

46:07

the research and the way in

46:10

which these things operate in practice,

46:12

there are questions that need to

46:14

be asked and questions that this

46:16

book tries to ask. And

46:20

clearly quite important questions to

46:22

ask. And I'm glad

46:24

you discussed kind of those wider implications of

46:26

what could be happening here. Is

46:29

there anything that the ICC

46:31

can or should do with

46:33

this information? So

46:35

there are two ways to think

46:38

about this. The first is that

46:40

the book proposes various technical

46:43

fixes. And many of

46:45

these technical fixes have

46:47

been proposed by other scholars,

46:52

by civil society. And my book does

46:54

this too. I look at the

46:57

experiences of the Rwanda Tribunal,

46:59

the Sierra Leone court, the

47:01

International Criminal Court in the DR

47:03

Congo. I mean, I also draw

47:06

on other cases to support my

47:08

arguments. But you know,

47:10

so I offer based on that

47:12

sort of a few overarching technical

47:14

fixes, you know, things that could

47:16

be done by the ICC itself

47:19

by amending, you know, its

47:21

policies or changing its operations.

47:23

One is, for example, having

47:26

more experts from the

47:28

countries where the

47:31

crimes were committed. So always

47:33

having local expertise is useful

47:35

because that means that when

47:37

you're investigating crimes, you're aware

47:40

of the contextual aspects, right?

47:42

How does this relate

47:44

to domestic politics and power? I

47:47

also draw attention to sort of

47:49

how the timing of intervention relates

47:52

to a tribunal's freedom of action.

47:54

One thing that we observe is

47:57

that Domestic actors. Generally

48:00

speaking, Figure. Things

48:02

out after. While that there there's there's a

48:05

lot of there's. A lot

48:07

of scope for for healthy, sort

48:09

of push pull relationships as I

48:11

call them between the international and

48:13

domestic level. Ah in the

48:15

early phases of intervention. Ah,

48:18

when one and the I C C or

48:20

another tribe you know gets involved and then.

48:23

That. Space for Cooperation closes down very

48:25

quickly because both sides kind of

48:27

figure out what the other side

48:29

is willing are not willing to

48:31

do. and then things kind of.

48:33

You know it becomes. A.

48:36

More of an accommodation ist approach.

48:38

what I call you know this

48:40

concession consensual accommodation as. On

48:44

his. Way of dealing

48:46

with things are another thing that

48:48

that I mention his you know

48:50

engaging civil society actors of in

48:52

in countries where crimes had been

48:54

committed making sure that civil society

48:56

is involved to their they can

48:58

interact with the government with the

49:01

international level with donors. I also

49:03

provide technical fixes are with respect

49:05

to the ice he sees case

49:07

law but these are more it's

49:09

was technical. Legal questions that

49:11

I I think are probably less

49:14

interesting for. Know. Conversation Not

49:16

like this, but. Then. The

49:18

other big big thing that said,

49:20

you know this book is trying

49:22

to do and where it's trying

49:24

to intervene and in the scholarly

49:26

debate is to ask. Scholars.

49:30

But you know the

49:32

I see see: donors states

49:34

who supports international crimes

49:36

prosecutions. And.

49:38

Jos you know, Human Rights

49:40

Watch, Amnesty To To To

49:43

really kind of think more

49:45

critically about this relationship. Between.

49:48

International. Tribunals, And.

49:50

Domestic courts. So.

49:54

Going back to the beginning of this interview.

49:56

it's often times described as

49:59

complementarity positive of complementarity and this

50:01

has this positive ring to

50:03

it, this positive spin, but

50:06

it's really an empty word

50:09

in many ways. It's a word that

50:11

gets thrown around by civil

50:13

society, by states, by the ICC

50:15

itself in completely

50:17

different ways. Everybody's using this

50:19

word to mean completely different

50:22

things. And

50:24

it creates this confusion because,

50:26

you know, diplomatically everybody's happy,

50:28

okay, complementarity is taking

50:31

place, but we need to

50:33

ask ourselves deeper questions about what

50:35

that means actually

50:37

in practice. How

50:39

are international and domestic

50:42

actors working or not

50:44

working together? And,

50:48

you know,

50:50

one thing that this book raises

50:52

as a question is to

50:55

what extent the turn,

50:57

the emphasis on domestic courts,

51:01

which is perceived very positively, right? This

51:03

idea that domestic courts are the

51:05

first line of defense. That's, I

51:07

would say, the conventional wisdom in

51:09

the field of international criminal law

51:11

today. It's an argument that's

51:14

pushed by, you know, human

51:16

rights watch, by states,

51:18

by the International Criminal Court itself

51:21

is really such a healthy

51:24

way of thinking about these

51:26

questions. And to

51:28

what extent does it really

51:31

tie into this broader backlash

51:33

against liberal internationalism, you

51:37

know, multilateralism that we have been

51:39

seeing now really for the last

51:41

10 years, at least, a

51:44

suspicion of international institutions

51:47

of multilateral cooperation. And

51:50

the book is, I don't have, so I

51:52

don't have good answers, I should really clarify

51:54

this, you know, the book is an attempt

51:56

to raise questions and ask whether

51:59

the digital discourse in our field

52:03

has missed something potentially,

52:07

but I don't

52:09

necessarily have a good answer to

52:11

the questions that I'm raising. I'm

52:14

concerned about the way in which we

52:17

romanticize domestic prosecutions as

52:19

a solution to impunity

52:23

to the most serious crimes and

52:26

there's a really robust

52:28

critique of international institutions

52:31

and I'm querying whether we have

52:34

gotten the balance there right or

52:36

if potentially scholars in particular

52:38

when I say we, I'm referring

52:40

here to scholars, whether scholars are

52:42

not contributing to

52:45

a one-sided critique of the

52:47

international level and kind of giving

52:49

the domestic level a free pass.

52:55

I think such a great way to kind of sum

52:57

up a lot of what the book is doing and

52:59

I think it's okay that there aren't great answers. I

53:01

mean we have to ask the questions before we can

53:03

come up with answers, so thank you very much for

53:05

taking us through that. As a

53:07

final question, can I ask what you might be working

53:09

on now that this book is done? Yeah,

53:12

sure. So I mean the book,

53:17

I finished the book and I am

53:20

still working on a few connected issues

53:22

looking at, I'm

53:25

involved in this as a scholar but also

53:27

as a practitioner as somebody who's promoting

53:30

various international crimes initiatives in

53:34

the Central African Republic, the Democratic

53:36

Republic of Congo and also in

53:38

Sudan. And so I'm

53:41

continuing to observe and think

53:44

and write about how these processes are

53:46

playing out in these contexts and

53:49

more recently I've just gotten

53:51

involved also in the Ukrainian

53:53

context and coming from

53:56

that region and trying

53:58

to compare. how

54:00

an interstate war between

54:03

Russia and Ukraine in this case is different

54:05

from the civil war

54:08

context that I studied and

54:10

that I'm familiar with from

54:13

the African continent. So that's one

54:15

thing that I'm thinking about. And

54:18

the other bigger

54:20

issue is also double standards in

54:22

international law. I mean this is

54:25

something that we hear a lot

54:27

about today, especially with the war currently

54:33

ongoing in Palestine and

54:35

Gaza, critiques

54:37

of liberal internationalism, the double

54:40

standards of the West. And

54:43

here I'm drawing a little bit on my

54:47

earlier work in

54:49

Africa where this critique of

54:52

the West colonial legacies, the

54:55

selectivity of international criminal law, the fact

54:57

that it focuses has

54:59

up until recently focused primarily

55:02

on African perpetrators,

55:04

African victims to the

55:06

exclusion of crimes committed by Western

55:09

actors. How all these

55:11

things are coming together and I

55:13

think there's a lot of interesting

55:16

work to be done on

55:19

double standards and international law and

55:21

I'm hoping to contribute

55:23

to that conversation. Well,

55:26

that sounds quite interesting. So best of luck with

55:28

that and thank you for that little sneak preview.

55:31

While you're working on that topic, of

55:33

course listeners can read the book we've

55:35

been discussing titled International Criminal

55:38

Tribunals and Domestic Accountability in the

55:40

Court's Shadow published by Oxford University

55:42

Press. Patrick, thank you so much

55:44

for being with us on the podcast. Thank

55:47

you. Thank you for the opportunity to

55:49

discuss the book. It

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is Ryan here and I have a question for you. What

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