Sarah M.H. Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan

Abstract

Complementarity is a key feature of the International Criminal Court (ICC). Yet, despite a growing body of literature on the ICC, the principle is not well understood by scholars and practitioners. Sarah M.H. Nouwen’s insightful book is essential reading for anyone who wants to appreciate the complex relationships that have developed between the ICC and national actors. It is especially timely given the growing rift between the ICC and some African states. A synthesis of law and legal anthropology, Complementarity in the Line of Fire draws on several years of fieldwork in Africa to challenge a variety of conventional wisdoms about the normative aspects of complementarity and its impact on states emerging from conflict. Nouwen, a lecturer in law at Cambridge University, sets out to test the expectation that the jurisdictional regime of the ICC would have ‘a catalysing effect at the domestic level’, or — to put it differently — that it would encourage national judicial systems to participate in the ICC’s struggle against impunity.1 Rooted in Article 17 of the ICC Statute, complementarity allows the ICC to exercise jurisdiction if and when national institutions do not exercise their domestic powers to try perpetrators of genocide, crimes against humanity and war crimes. Unlike the ad hoc tribunals, which enjoy primacy of jurisdiction, the ICC must defer to the jurisdiction of domestic courts investigating international crimes. As a result, under the ICC Statute, states — not the ICC — have the primary right to adjudicate such crimes. However, given that the ICC is authorized to intervene if states fail to exercise their jurisdiction, it was expected that the ICC’s shadow would have a ‘catalysing effect’ on states seeking to avoid ICC intervention. On the basis of two case studies, Nouwen explores whether and how complementarity has catalysed effects, and if not — the reasons behind its failure to do so.