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A Catalyst for Justice? The International Criminal Court in Uganda, Kenya, and the Democratic Republic of Congo

Since its inception, a central preoccupation of and for the International Criminal Court (ICC) has been the nature of its relationship to national jurisdictions. Complementarity—the idea that the Court is intended to supplement, not supplant, national jurisdictions—has been the dominant juridical logic through which this relationship has been expressed but the principle occupies a charged space in the political imaginary. Initially understood as an organizing principle for the regulation of concurrent jurisdiction, complementarity has since become a powerful policy tool for catalyzing progressive change in post-conflict countries’ legal frameworks and institutions.

Christian De Vos
10 March 2016

Drawing on several years of field-based research, this dissertation examines what effects framing the ICC as a “catalyst” for domestic investigations and prosecutions has had in three distinct situation-country contexts: Uganda, Kenya, and the Democratic Republic of Congo (DRC). It examines how both state and non-state actors have relied upon the principle of complementarity as the logic through which the Court’s catalytic potential can be best realized, as well as a transnational site and adaptive strategy for entrenching the norm of international criminal accountability domestically. In so doing, it asks three principal research questions. First, how has the understanding of complementarity evolved since the ICC’s inception and what role have non-state actors, in particular, played in this evolution? Second, how have ICC judges understood and interpreted complementarity’s requirements in the courtroom, and how has the Office of the Prosecutor sought to implement it as a matter of policy? And third, to what extent and how have the ICC’s interventions in Uganda, Kenya and the DRC affected these countries’ institutional and normative frameworks for carrying out domestic criminal proceedings?

In exploring these questions, the dissertation argues that while the ICC as an institution has had a relatively limited effect on national investigations and prosecutions, the “idea of the ICC” has been deeply alive in domestic politics and there has been considerable national-level activity pursued in complementarity’s name. The absence of domestic proceedings has thus not meant that states are inactive, but nor has it meant that compliance with rules necessarily produces greater accountability. For these reasons, the dissertation suggests that compliance should not be the dominant framework for complementarity: it is too narrow a lens to capture the complex legal and political alchemy that Court interventions produce. A critical orientation towards international criminal justice is instead needed, one that that welcomes international criminal justice less as a matter of rule following and more as a project of global legal pluralism.

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