Emory International Law Review

Complementarity And Post-Coloniality
Nirej Sekhon Assistant Professor of Law, Georgia State University College of Law. Thanks to Jonathan Todres, Natsu Saito, and Deepa Varadarajan for comments.

Abstract

The International Criminal Court’s jurisdiction is complementary to that of national criminal jurisdictions. While most agree that complementarity is a cornerstone principle, debate continues as to what precisely it should mean for the ICC’s relationship to national criminal justice actors. “Positive complementarity,” a view many commentators hold, suggests that the ICC should use its power to educate, persuade, and prod states parties to undertake international criminal law investigations. For positive complementarity’s more optimistic proponents, the future holds promise for a coordinated system of global justice in which the ICC plays a secondary role to national courts in vindicating international criminal law violations. In this essay, based on remarks presented at the Emory International Law Review’s 2013 Symposium on the ICC’s future, I argue that a robust regime of positive complementarity will require that the ICC deftly navigate a post-colonial landscape—i.e., widespread underdevelopment, political and social fragmentation, and epistemic heterogeneity. Doing so effectively will require tools the ICC does not have and a willingness to make political judgments that may seem unbecoming of a court. These limitations raise more profound questions about whether the ICC can speak to those who inhabit the globe’s most desperately marginal spaces. While I am skeptical that it can, it is also unclear that domestic criminal justice actors are better equipped to do so. I conclude by suggesting that it may be more constructive to analyze complementarity through a descriptive lens rather than in grand normative terms. In this vein, I suggest that a “governmentality” framework that focuses on the development of bureaucratic culture may be useful for future research on complementarity.

Introduction

Given the number of adjectives used to describe complementarity and the pages written about it, 1See, e.g., Silvana Arbia & Giovanni Bassy, Proactive Complementarity: A Registrar’s Perspective, in 1 The International Criminal Court and Complementarity 52, 54‒55 (Carsten Stahn & Mohamed El Zeidy eds., 2011) (“positive complementarity,” “negative complementarity,” and “passive complementarity”); Michael Newton, The Quest For Constructive Complementarity, in 1 The International Criminal Court And Complementarity, supra, at 304 (“constructive complementarity”); William W. Burke-White, Proactive Complementarity: The International Criminal Court And National Courts In The Rome System Of International Justice, 49 Harv. Int’l L.J. 53, 54 (2008) (“proactive complementarity”). one would think that the issue regularly arose in the International Criminal Court (ICC). But more than ten years after the ICC’s creation, complementarity discourse remains primarily about the ICC’s—and international criminal law’s (ICL’s)—future. While the Rome Statute notes that the ICC shall be “complementary to national criminal jurisdictions,” 2Rome Statute of the International Criminal Court pmbl., opened for signature July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002) [hereinafter Rome Statute]. the treaty does not provide a specific template for complementarity. For the more optimistic proponents of “positive complementarity,” 3Burke-White, supra note 1, at 54 n.4. the future holds the promise of a coordinated system of global justice in which the ICC plays a secondary role to national courts in vindicating ICL violations. 4See id. at 54–55 Proponents argue that the Court’s organs—primarily the Office of the Prosecutor (OTP)—should use their power under the treaty to educate, persuade, and prod states parties to undertake domestic ICL prosecutions. 5See id. at 55–56.

In the discussion that follows, I address the question posed by the symposium’s organizers by arguing that the more ambitious account of positive complementarity may not be the most “constructive” way to think about the subject. An ambitious notion of positive complementarity will require that the ICC deftly navigate a post-colonial landscape—widespread underdevelopment, political and social fragmentation, and epistemic heterogeneity. Doing so effectively will require tools the ICC does not have and a willingness to make political judgments that may seem unbecoming of a court. In Part II below, I develop this argument and conclude by suggesting that the complementarity debate raises more profound questions about the ICC and ICL more generally. Neither seems particularly well equipped to speak to “the subaltern”—those who inhabit the globe’s desperately marginal spaces and are most vulnerable to the harms ICL is concerned with.

In Part III, I suggest that it may be more constructive to analyze complementarity through a modest descriptive lens rather than in grand, normative terms. In this vein, I suggest that the notion of “governmentality” may be a useful framework for understanding complementarity.

I. Background

Unlike most international criminal tribunals of the past—which adjudicated to the exclusion of domestic courts 6See Burke-White, supra note 1, 65. While this has typically been true, there have been so-called hybrid tribunals that combine features of international and national courts. See David Luban et al., International And Transnational Criminal Law 122 (2010) (discussing the Special Court for Sierra Leone). These, however, have been conflict-specific like other international tribunals of the past. Laura A. Dickinson, The Promise of Hybrid Courts, 97 Am. J. Int’l L. 295, 295 (2003). —the Rome Statute envisages a “complementary” relation between the ICC and national criminal jurisdictions. 7Rome Statute supra note 2, pmbl, art. 1. “Complementarity” describes the relationship. 8The word complementarity arose during the drafting of the Rome Statute. See Observations of Governments on the Report of the Working Group on a Draft Statute for an International Criminal Court, 46th Sess., June 29, 1994, para. 35, (1994), reprinted in 2 Yearbook of the International Law Commission, 21 U.N. Doc. A/CN.4/SER.A/1994/Add.1 (Part I), U.N. Sales No. E.96.V.Z. (Part I) (1994). It is one of the Rome Statute’s cornerstone principles. 9Prosecutor v. Lubanga, Case No. ICC 01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing, para. 34 n.38 (Nov. 8, 2006), http://www.icc-cpi.int/iccdocs/doc/doc243711.pdf. Former Prosecutor Moreno-Ocampo noted that success for the ICC might mean that cases stop reaching it. 10Luis Moreno-Ocampo, A Positive Approach To Complementarity: The Impact Of The Office Of The Prosecutor, in 1 The International Criminal Court And Complementarity, supra note 1, at 24. This is to hope that, using the Rome’s Statute’s language, widespread domestic prosecutions of ICL violations would render cases inadmissible before the ICC. 11See Rome Statute, supra note 2, art. 17(1). The more optimistic accounts suggest that complementarity could usher in an era of broad and deep responsiveness to ICL violations by domestic criminal justice actors, with the ICC playing a supporting role. 12See, e.g., id.; Carsten Stahn, Taking Complementarity Seriously, in 1 The International Criminal Court and Complementarity, supra note 1, at 233, 236; Christoph Burchard, Complementarity as Global Governance, in 1 The International Criminal Court and Complementarity, supra note 1, at 167, 169. The Rome Statute, however, does not provide a detailed framework for such a robust regime of complementarity.

The Rome Statute’s operative provisions regarding complementarity are found in Articles 17 through 19. Because these provisions have been the subject of extensive summary and discussion elsewhere, 13See, e.g., Carsten Stahn, Introduction, in 1 The International Criminal Court And Complementarity, supra note 1, at 1, 8–12; Alexander K.A. Greenawalt, Complimentarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court, 50 Va. J. Int’l L. 107, 122–24 (2009); Michael Newton, The Complementarity Conundrum: Are We Watching Evolution or Evisceration?, 8 Santa Clara J. Int’l L. 1, 133–37 (2010). only a brief description is necessary here. Article 17 provides that the Court shall deem a case “inadmissible” where it is being (or has been) “investigated or prosecuted by a State” unless that effort is not (or was not) genuine. 14See Rome Statute, supra note 2, art.17(1)(a)–(b). The latter exception allows the ICC to proceed in cases where, among other circumstances, a state has initiated legal process against an individual to “shield[] the person . . . from criminal responsibility.” 15See id. art. 17(2)(a). The ICC may also proceed in circumstances where “[t]here has been an unjustified delay” in the state proceedings. 16See id. art. 17(2)(b). Either the accused or a state with jurisdiction over a case may raise admissibility before the ICC. 17See id. art. 19(2). To ensure that states with jurisdiction have an opportunity to do so, the OTP must notify such states upon concluding that there is a reasonable basis for an investigation. 18See id. art. 18(1). The Rome Statute limits when and how frequently admissibility challenges may be brought. 19See id. art. 19(4).

The Rome Statute’s drafters included the admissibility provisions to placate potential states parties concerned about ratification’s sovereignty costs. 20See Burke-White, supra note 1, at 64–65. Although the ICC is similar to past international criminal tribunals with regard to the substantive crimes over which it has jurisdiction and the absence of head of state immunity, 21Compare Rome Statute, supra note 2, arts. 5, 27, with Statute of the International Criminal Tribunal for the Former Yugoslavia arts. 3–5, 7, U.N. Doc. S/RES/827, (May 25, 1993) (adopting the Statute as proposed by the Secretary-General in U.N. Secretary-General, Rep. of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N. Doc. S/25704, Annex (May 3, 1993). it is the first such tribunal with an indefinite and open-ended mandate; past tribunals were created for adjudicating cases that arose from a specific conflict involving specific states. 22See generally Luban, supra note 6, at 95–129. In theory, any state party’s (and even some non-party states) nationals could find themselves before the ICC. 23Rome Statute, supra note 2, art. 12; Madeline Morris, High Crimes and Misconceptions: The ICC and Non-Party States, 64 Law & Contemp. Probs. 13, 13–14, 14 n.3 (2001). The admissibility provisions also address the obvious fact that resource constraints will prevent the ICC from adjudicating anything but a sliver of the cases over which it will have jurisdiction. 24See Burke-White, supra note 1, at 54, 66–67. This history tends to support a “negative” or “passive” view of complementarity. 25See Arbia & Bassy, supra note 1, at 55; Burke-White, supra note 1, at 56. By this view, the ICC should give wide berth to domestic prosecutions and only step in as a court of last resort when a state fails to satisfy its obligation to investigate and prosecute. 26See, e.g., Burke-White, supra note 1, at 56.

In contrast, many commentators view the Rome Statute as creating the basis for vigorous, collaborative relationships between the ICC and States. These commentators tend to use adjectives like “positive” or “proactive” to describe complementarity. 27See, e.g., Moreno-Ocampo, supra note 10, at 23–24; Stahn, supra note 12, at 261; Burke-White, supra note 1, at 56‒57. Throughout the paper, unless specifically noted otherwise, I will use the adjective “positive” generically to refer to the body of commentators who take such a view. They view complementarity as creating leverage for the ICC to cajole or coerce state actors into investigating and prosecuting violations of ICL; 28See Burke-White, supra note 1, at 57–58. to correct deficiencies within states that are inclined to investigate and prosecute such crimes, but do so imperfectly; 29See Burchard, supra note 12, at 180. and generally support states’ efforts for carrying out such investigations. 30See Moreno-Ocampo, supra note 10, at 23–24. For example, William Burke-White has proposed the notion of “proactive complementarity” whereby the ICC would use its “legal and political powers to activate states’ domestic courts in international criminal prosecutions.” 31Burke-White, supra note 1, at 57.

While the Rome Statute requires communication and cooperation between the Court and states, it does not lay out a precise template for positive complementarity. 32See Rome Statute, supra note 2, arts. 18, 86, 87, 93. Notwithstanding the ambiguity, the more enthusiastic proponents of positive complementarity view the ICC as part of an evolving system of coordinated, global justice. 33See Burchard, supra note 12, at 167 (applying “global governance theory” to complementarity); Burke-White, supra note 1, at 57 (describing the “Rome System of Justice”). Even if this ideal is not as heady as that of an earlier generation of international law commentators—i.e., a vision in which international institutions’ growth was coterminous with sovereignty’s dissipation 34See, e.g., Newton, supra note 13, at 119 (quoting Benjamin Ferencz, Address to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court (June 16, 1998)). —its vision of an activated, but harnessed, sovereignty remains ambitious. As a practical matter,we should question what a regime of positive complementarity actually stands to achieve and to what end.

II. Post-Colonial Dilemmas

Positive complementarity posits that the ICC will engage states in a vigorous and multidimensional way to promote broader domestic enforcement of ICL. 35See Moreno-Ocampo, supra note 10, at 23–24. The bulk of this engagement will presumably occur within post-colonial states that inhabit the global order’s periphery. The post-colonial landscape is marked bs economic underdevelopment and internal political fragmentation that does not necessarily conform to Western models of “interest” or “minority” politics. 36See Partha Chatterjee, The Politics of the Governed 37 (2004) (describing politics of development in post-colonial states). A robust notion of positive complementarity will require the ICC to navigate this heterogeneous and complex landscape. I suggest below that it will be impossible for the ICC to do so in a manner that is neutral and apolitical. It is likely that the ICC is entirely ill-equipped to handle the more significant challenges post-colonial states present. This, in turn, raises deeper questions about ICL’s capacity to speak to those who are most vulnerable to the harms ICL is concerned with.

A. Justice Without Judges?

If positive complementarity is to institute a new era of coordinated criminal justice, there must be reasonably well-developed institutions in post-colonial states for investigating, prosecuting, and adjudicating. To the extent that that is not true, the ICC is unlikely to have a significant role in facilitating the development of such.

1. Rule of Law in the “Third World”

The notion of positive complementarity suggests we conceptualize ICL as part of a broader rule of law program in the so-called “third world.” The expression “rule of law” describes any development program that assumes liberal precepts of governmental accountability and promotes the creation of formal, state-administered dispute resolution mechanisms that conform to due process. 37See Juan Carlos Botero & Alejandro Ponce, Measuring The Rule of Law 5 (The World Justice Project, Working Paper Series, Paper No. 001 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1966257. The goal is not only to promote peaceful dispute resolution within a state, but also the related ends of economic efficiency and growth. 38See, e.g., Roberto Laver, The World Bank and Judicial Reform: Overcoming “Blind Spots” in the Approach To Judicial Independence, 22 Duke J. Comp. & Int’l L. 183, 185‒87 (2012). Increasing judicial independence, institutional case-processing capacity, and access to courts are the kinds of programmatic issues that rule of law initiatives tend to focus upon. 39See id.

A cursory look at the World Justice Project’s Rule of Law Index suggests a broad divide between the Global North and the rest. 40See Mark David Agrast et al., The World Justice Project: Rule Of Law Index 2012‒2013, at 25 (2013), available at http://worldjusticeproject.org/sites/default/files/WJP_Index_Report_2012.pdf. The Index reflects dozens of factors and sub-factors including limits on governmental authority, checks on official corruption, crime control, access to civil justice, and so forth. 41Id. at 11. Every situation that the OTP is currently investigating or prosecuting involves African states that tend to score low for most factors on the Rule of Law Index (when there is data available at all). 42Compare Int’l Crim. Ct., http://www.icc-cpi.int/EN_Menus/ICC/Pages/default.aspx (last visited June 26, 2013) (listing situations being investigated) with Rule Of Law Index Map, World Just. Project, http://worldjusticeproject.org/rule-law-index-map (last visited Oct. 19, 2013). That is to say these states’ lack of capacity to investigate or prosecute violations of ICL is likely symptomatic of both deeper and broader rule of law problems. This in turn suggests, quite unsurprisingly, that cultivating greater capacity to investigate and prosecute violations of ICL in developing states will have to be tied to broader institutional reforms.

Positive complementarity is likely to work in only a specific subset of post-colonial states. Under the Rome Statute, complementarity is limited to contexts in which a state’s justice institutions are available to effectively respond to ICL violations. 43See Rome Statute, supra note 2, art. 17. This encompasses situations where an violation unfolded (or is unfolding) without significantly compromising the relevant state institutions’ independence or integrity. 44See id. arts. 17(2)–(3). It is in relation to such states that proponents of positive complementarity propose the ICC use its power and resources to promote domestic capacity for adjudicating ICL cases. 45See Burke-White, supra note 1, at 57. The prime contenders are likely to be states that inhabit the duskier, but not altogether dark, corners of the global imagination: “third-world” countries that are afflicted by the pathologies endemic to post-colonial governance—but remediably so. 46Cf. Chatterjee, supra note 36, at 37. Whatever adjective one might deploy—“third world,” “underdeveloped,” “global south,” or some other—positive complementarity’s canvas will be those poor states that are prone to bouts of mass violence, but are not entirely hobbled by it or wholly complicit in its perpetuation. 47This would disqualify states with extraordinarily weak governments where there is minimal or no judicial capacity—e.g., Rwanda in the immediate wake of the 1994 genocide. See John T. Holmes, Complementarity: National Courts versus the ICC, in 1 The Rome Statute of the International Criminal Court: A Commentary 667, 668 (Antonio Cassese et al eds., 2002). Sudan is an example of a government that is so completely complicit in the violence that any tribunal it established would be suspect. See Robert Cryer, Darfur: Complementarity As The Drafters Intended, in 1 The International Criminal Court And Complementarity, supra note 1, at 1097, 1107–11, 1113–15, 1117–18.

Kenya is a good example. Kenya’s recent experience with rule-of-law initiatives illustrates the kind of problems that capacity building initiatives might attempt to remedy. 48See Int’l Dev. Ass’n, Project Appraisal Document on a Proposed Credit in the Amount of SDR 78.9 Million to the Republic of Kenya for a Judicial Performance Improvement Project, Report No. 72979-KE, 1–3 (Oct. 22, 2012). The situation in Kenya relating to 2008 electoral violence was the OTP’s first self-initiated investigation. 49Brian D. Lepard, How Should The ICC Prosecutor Exercise His Or Her Discretion? The Role Of Fundamental Ethical Principles, 43 J. Marshall L. Rev. 553, 556 (2010). The World Bank, in fact, interpreted the failure to refer election violence-related cases to Kenyan courts as emblematic of the public’s lack of confidence in Kenya’s justice system. 50See Int’l Dev. Ass’n, supra note 48, at 3. However, the lack of public confidence predates the 2008 election violence. 51Id. The longstanding deficiency in public confidence is attributable to substantial case backlogs, ineffective case management, and the poor training and treatment of judicial staff. 52Id. at 2–3. These dynamics have together created a court system that is “inaccessible, an instrument of the executive, and corrupt.” 53Id. at 3. The judiciary’s inadequacy hampers both political accountability and economic growth. 54Id. at 1. With regard to the latter, the Kenyan government views reform as an essential component of its plan to become a middle-income state by 2030. 55Id. In 2012, the World Bank agreed to provide $120 million in loans to support, among other things, the development of case management systems for the courts, supporting the training and development of court and attorney general personnel, and the construction of court buildings. 56Id. at ii.

This suggests that the Kenyan courts’ failure to process violations of ICL might not represent a circumscribed evil exclusively attributable to the state’s calculated obstruction. Such failure is almost certainly linked to the broader deficiencies described above. 57See supra notes 48–56 and accompanying text. As at least one commentator has noted, enforcing ICL norms is not just a simple matter of states incorporating ICL norms into their domestic criminal codes. 58See Kevin Jon Heller, A Sentence-Based Theory of Complementarity, 53 Harv. Int’l L.J. 202, 247–48 (2012). ICL cases are legally and factually more complex than regular criminal cases. 59See id. at 216. There are various reasons for this, but one important one is that proving an ICL violation will often require proof of “a particular contextual element,” e.g., widespread and systematic against a civilian population for crimes against humanity. Id. Investigating and prosecuting ICL violations will demand personnel with specialized training and be more resource-intensive than run-of-the-mill criminal and civil matters. 60Id. To the extent that Kenyan courts do a poor job processing ordinary cases, it is not surprising that the same is true for the exceptional ones. 61See Int’l Dev. Ass’n, supra note 48, at 6.

It is unclear whether building the capacity to investigate and prosecute ICL violations can be accomplished in a state like Kenya without sacrificing some other dimension of rule of law development. Resource scarcity might mean that developing capacity in one area may come at the expense of developing it in another. Even if not perfectly zero-sum, there are likely to be tradeoffs. Choosing between ICL capacity building and other kinds of capacity building implicates difficult moral and technocratic questions. 62See Jane E. Stromseth, Pursuing Accountability for Atrocities After Conflict, What Impact on Building the Rule of Law, 38 Geo. J. Int’l L. 251, 266 (2007). These are not the sort of questions that the ICC is well suited to address. 63 See Burke-White, supra note 1, at 96–98.

2. ICC and Capacity Building

Resource limitations coupled with the Rome Statute’s formal constraints make it impossible for the ICC to lead any significant capacity building projects in poor states. Officers within the ICC have made it clear that they do not understand complementarity to entail such capacity building. 64See Morten Bergsmo et al., Complementarity After Kampala: Capacity Building and the ICC’s Legal Tools, 2 Goettingen J. Int’l L. 791, 798 (2010). At best, the ICC might play an indirect and subtle role in shaping such efforts. 65See Burke-White, supra note 1, at 95. Burke-White advocates for the ICC playing a role in mobilizing “external resource networks” to promote judicial reforms in States that are unwilling or unable to prosecute ICL violations. Id. It is, however, unclear as to what precisely this might mean and whether the ICC would have any expertise to offer with regard to the moral and technocratic questions that are implicated by rule-of-law type development assistance. See supra Part II.A.1. The capacity building tools—if that is even the right way to conceptualize them—available to the ICC are quite limited, consisting of pedagogical and shaming strategies. 66Burke-White, supra note 1, at 95–96; Joseph M. Isanga, The International Criminal Court Ten Years Later, 21 Cardozo J. Int’l & Comp. L. 235, 247 (2013).

The ICC’s limited budget makes it impossible for it to do much more than process a relatively limited set of cases—there are currently twenty-one cases before the ICC. 67Situations and Cases, Int’l Crim. Ct., http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx (last visited Feb. 1, 2014). In fiscal 2012, the budget for the ICC was roughly $140 million. 68Jon Silverman, Ten Years, $900 Million, One Verdict: Does the ICC Cost Too Much, BBC News Magazine (Mar. 14, 2012), http://www.bbc.co.uk/news/magazine-17351946. This is not enough to support development projects like the Kenyan judicial capacity building project described in Subpart 1 above. 69See supra Part I.A.1. While that may be a particularly ambitious project, the World Bank commonly funds rule of law projects in the tens of millions. 70See Laver, supra note 38, at 199–200. That the ICC’s budget will not permit significant capacity building projects is unsurprising. The Rome Statute’s drafters did not intend for the ICC to engage in development financing. 71Bergsmo, supra note 64, at 798.

The Rome Statute’s provisions suggest that the practice of complementarity will flow from the ICC’s ability to leverage its power to adjudicate particular cases and states parties’ obligation to “cooperate fully” with ICC investigations and prosecutions. 72See Rome Statute, supra note 2, art. 86.

As with prior international criminal tribunals, pedagogical aspirations account for the ICC’s creation. The Rome Statute’s drafters hoped that the ICC would, at the very least, work with domestic criminal justice institutions, if not teach by example. 73Id. pmbl. In that vein, the Rome Statute codifies specific obligations regarding coordination and cooperation between the Court and states parties. 74Id. arts. 86–87. The articles relating to state party cooperation, by and large, concern the provision of assistance in the ICC’s investigation and prosecution of specific cases. 75See id. One could imagine ICC personnel developing relations with domestic criminal justice actors in a manner that creates opportunities for information sharing, training, and more general dialogue about ICL violations within a state party’s borders. 76Burke-White, supra note 1, at 89, 93.

While cooperation is laudable, it is merely the carrot, the reward inducing specific behavior. The threat of investigation and prosecution is therefore the stick, the primary device the ICC has at its disposal for promoting complementarity. 77Id. at 86. Articles 17 and 19 only permit the ICC to proceed with an investigation or prosecution if there has not been (or presently is not) a meaningful national criminal investigation or prosecution. 78Rome Statute, supra note 2, arts. 17, 19. William Burke-White has suggested that the OTP proactively leverage its authority to investigate ICL violations to incentivize domestic investigations of the same. 79Burke-White, supra note 1, at 86. The OTP might use its authority to help domestic criminal justice actors identify ICL violations that they otherwise would not have. 80Id. Or the OTP might simply scare domestic actors into taking action lest the OTP investigate and embarrass the state on the global stage. 81Id. This threat is limited by the fact that the ICC only has the resources to process a small number of cases. 82See supra Part II.A.2. In addition, threats will not alter the resource constraints created by underdevelopment. 83See supra Part II.A.1. The assumptions underlying positive complementarity also raise questions about the purpose and consequences of complementarity more generally.

Both the pedagogical and threat-based formulations of complementarity assume that the criminal justice capacity being cultivated in developing states should be for the purpose of vindicating ICL violations. 84See, e.g., Heller, supra note 58, at 88–89, 97 (describing “hard mirror” and “soft mirror” theses of complementarity). Whether that is normatively desirable, however, is questionable.

B. Universal Law for Universal Misconduct

Complementarity does not promise to be particularly pluralistic with regard to the substance or form of justice. With regard to substance, there is a question as to what law a domestic tribunal must apply to count for admissibility purposes. 85See id. at 88–89, 97. Commentary tends to frame the problem in terms of ICL’s absence—that is, the lack of ICL investigations/prosecutions in domestic courts. 86Kevin Jon Heller nicely summarizes (and critiques) the various positions in a recent article. See generally id. Proponents of the “hard mirror thesis” insist that only investigations/prosecutions under ICL satisfy complementarity. Id. at 88‒89. Proponents of the “soft mirror thesis,” on the other hand, suggest that while prosecutions under domestic law may suffice, prosecutions under ICL would clearly be superior. Id. at 97. By this view, a domestic solution should entail the express application of ICL norms in a proceeding that conforms to due process. 87See Rome Statute, supra note 2, art. 17(2); Heller, supra note 58, at 88. The Rome Statute does not explicitly create this requirement. 88See id. Nonetheless, commentators share deep faith in ICL’s unique expressive force. Complementarity will likely require that the ICC reconcile that faith with the plurality of national and sub-national approaches that are possible for dealing with the kinds of misconduct to which ICL applies.

The Rome Statute does not directly speak to the question of whether a domestic tribunal needs to apply ICL to misconduct to render a case concerning the conduct “inadmissible.” 89See generally Rome Statute, supra note 2, art. 17. While the argument that the Rome Statute does not require a domestic proceeding under ICL is plausible, 90The Pre-Trial Chamber recently interpreted the Rome Statute when it denied Libya’s challenge to the admissibility of the case against Saif Al-Islam Gaddafi. Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, paras. 85–88 (May 31, 2013), http://www.icc-cpi.int/iccdocs/doc/doc1599307.pdf. The PTC’s discussion, however, was brief and did not have tremendous bearing on the outcome of the admissibility challenge. For a summary and discussion of the ruling, see M. Christopher Pitts, Being Able To Prosecute Saif Al-Islam Gaddafi: Applying Article 17(3) Of The Rome Statute To Libya, 27 Emory Int’l L. Rev. 1291 (2013). Kevin Jon Heller has also persuasively argued that the Rome Statute does not require that a domestic prosecution be pursuant to ICL to render a case inadmissible . See Heller, supra note 58, at 88–92. so too is the contrary argument. Article 17 simply states that a case is inadmissible if it “is being investigated or prosecuted by a State which has jurisdiction over it.” 91See Rome Statute, supra note 2, art. 17(1)(a). Such a case is inadmissible only to the extent that the state is willing and able “genuinely to carry out the investigation or prosecution.” 92Id.; see also id. art. 20(3) (stating that an individual who has already been tried by a domestic court cannot be tried again before the ICC). The Rome Statute does not expressly define unwillingness or inability in terms of a state’s failure to apply ICL in a particular case. 93See id. art. 17(2). In situations where a state has investigated and/or prosecuted an individual, the Rome Statute defines “unwillingness” to mean that the state undertook the domestic prosecution for the purpose of shielding the individual from ICC investigation and/or prosecution. 94Id. arts. 17(2)(a), 20(3)(a). The Rome Statute, however, does not purport to enumerate an exhaustive definition of “unwillingness” or “inability:” The drafters’ choice to specifically identify sham trials need not have been to the exclusion of other possible deficiencies that would make this case admissible.

One might read the reference to “case” in Article 17 to support the conclusion that a state must bring a case under ICL in order to render it inadmissible in the ICC. 95See e.g., Heller, supra note 58, at 204. Article 17(1) states that “a case is inadmissible where: [t]he case is being investigated or prosecuted by a State.” 96Rome Statute, supra note 2, art. 17(1)(a) (emphasis added). A technical legal definition of “case” is a “criminal proceeding, action, suit, or controversy at law or in equity.” 97Black’s Law Dictionary 243 (9th ed. 2009). The article “the” suggests identity between whatever case is before the ICC and that “being investigated or prosecuted by a State.” 98The Rome Statute, supra note 2, art. 17(1)(a). “Case” might also be read in a more colloquial way to refer to the underlying facts that gave rise to the controversy. 99See Prosecutor v. Muthaura, Kenyatta, & Ali, Case No. ICC 01/09-02/11OA, Judgment on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial Chamber II Of 30 May 2011 Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute” para. 27, (Aug. 30, 2011), http://www.icc-cpi.int/iccdocs/doc/doc1223134.pdf. [hereinafter Kenya Admissibility Decision] (“In the view of Kenya . . . [the admissibility test that applies is] the test developed by the Pre-Trial Chamber in the Article 15 Decision should be applied to the Admissibility Challenge. According to that test, the national proceedings must ‘cover the same conduct in respect of persons at the same level in the hierarchy being investigated by the ICC.”) The Appeals Chamber rejected Kenya’s argument. Id. para. 41. The Court, however, has tended to read the Rome Statute narrowly in favor of finding cases admissible—for example, the Appeals Chamber denied an admissibility challenge brought by Kenya, the first admissibility challenge brought by a state. 100Charles Jalloh, Kenya vs. The ICC Prosecutor, 53 Harv. Int’l L.J. Online 269, 270 (2013), http://www.harvardilj.org/wp-content/uploads/2012/09/HILJ-Online_53_Jalloh2.pdf; see also Kenya Admissibility Decision, supra note 99, para. 40. (Aug. 30, 2011), http://www.icc-cpi.int/iccdocs/doc/doc1223134.pdf.

In its opinion, the Appeals Chamber stated that to be inadmissible, a “national investigation must cover the same individual and substantially the same conduct” as that in the case before the ICC. 101Kenya Admissibility Decision, supra note 99, para. 39. The case arose from the violence surrounding the 2008 elections in Kenya and names Uhuru Kenyatta, the president of Kenya, as a defendant. 102See Jeffrey Gettleman, Kenyatta is Declared the Victor in Kenya, but Opponent Plans to Appeal, N.Y. Times, Mar. 9, 2013, at A8. The Appeals Chamber rejected the admissibility challenge despite Kenya’s representations that a domestic investigation into the violence was ongoing. 103Kenya Admissibility Decision, supra note 99, paras. 51, 69. Because the investigation did not, at the time of the challenge, encompass the defendants charged in the ICC cases, the Appeals Chamber deemed those cases admissible. 104Id. paras. 40, 46. The Appeals Chamber was unmoved by Kenya’s representation that it was preparing to investigate the defendants or others at the same level. 105Id. Several years earlier, in Lubanga, the Appeals Chamber defined “conduct” narrowly to mean that a domestic investigation/prosecution must encompass the same charges as those pending before the ICC. 106See Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case Against Mr. Thomas Lubango Dyilo, paras. 37–38 (Feb. 24, 2006), [hereinafter Lubanga February Decision] http://www.icc-cpi.int/iccdocs/doc/doc236260.pdf. Ironically, the charges pending against Lubanga in the ICC were arguably less numerous and serious than those pending against him in the Democratic Republic of Congo. 107See Thomas Obel Hansen, A Critical Review of the ICC’s Recent Practice Concerning Admissibility Challenges and Complementarity, 13 Melb. J. Int’l L. 1, 7 (2012); Newton, supra note 13, at 156. The Appeals Chamber has not specifically addressed the question of whether domestic courts must prosecute under ICL to satisfy the “same person, same conduct” test. 108The Appeals Chamber has yet to consider Libya’s admissibility challenge to the case against Saif Al-Islam Gaddafi. See supra note 90. That said, the Court’s opinions suggest an inclination to understand complementarity narrowly in favor of admissibility. 109Lubanga February Decision, supra note 106, paras. 37–39. This suggests that the Court may be inclined to require domestic prosecutions under ICL (or a domestic cognate).

While some commentators have criticized the ICC for understanding complementarity too narrowly, 110Newton, supra note 13, at 156; Jalloh, supra note 100, at 282–84 most tend to view it as preferable for domestic courts to apply ICL as opposed to domestic criminal law in cases that allow for the former. 111See supra notes 96–98 and accompanying text. This preference is most plausibly grounded in expressive theories of the criminal sanction. 112Heller, supra note 58, at 130–32. If for no other reason, this conclusion seems correct because retribution and deterrence-based rationales—the other two rationales traditionally advanced for the criminal sanction—provide such poor justification for ICL. 113See Margaret M. deGuzman, Choosing To Prosecute: Expressive Selection At The International Criminal Court, 33 Mich. J. Int’l. L. 265, 269‒70, 313‒17 (2012); Heller, supra note 58, at 130–31. Retributivist accounts suggest that a criminal should be punished in strict proportion to the moral gravity of his misconduct—such moral reckoning will often be impossible given mass atrocities’ scale. 114See Payam Akhavan, The International Criminal Court Context: Mediating The Global And Local In The Age Of Accountability, 97 Am J. Int’l L. 712, 721 (2003) (quoting Letter from Hannah Arendt to Karl Jaspers, Aug. 17, 1946, in Hannah Arendt-Karl Jaspers Correspondence, 1926‒1969, at 51, 54 (Lotte Kohler & Hans Saner eds., 1992)). Deterrence provides a similarly unsatisfying account because there is little to suggest that punishing perpetrators of past atrocities does anything to influence would-be perpetrators of future atrocities. 115See Mark Drumbl, Collective Violence And Individual Punishment: The Criminality Of Mass Atrocity, 99 Nw. U. L. Rev. 539, 545–46, 590‒91 (2005).

A conviction secured under ICL is tantamount to universal condemnation—in theory it produces expressive force calibrated to the gravity of mass atrocities. 116See deGuzman, supra note 113, at 316; Heller, supra note 58, at 130–31. By “expressive force,” I refer to the social meaning that official, punitive denunciation produces. 117See, e.g., Joel Feinberg, Doing & Deserving: Essays in the Theory of Responsibility 98 (1970); Dan M. Kahan, The Secret Ambition of Deterrence, 113 Harv. L. Rev. 413, 419–20 (1999). Calling someone a “criminal” is to symbolically degrade him in the name of the community that constitutes the relevant jurisdiction. A simple expressivist account of ICL suggests that because mass atrocities constitute a grave offense against all humankind, an appropriate punishment must condemn in the name of all humankind. 118Of course, a more nuanced expressivist account is possible, but this is the short version of the textbook account that is routinely deployed in ICL literature. See, deGuzman, supra note 113, at 278–81 (summarizing views regarding the “ephemeral global community” for which international tribunals purport to speak); Heller, supra note 58, at 130–31. ICL purports to do precisely that. Even those, like Kevin Heller, who see convictions under domestic criminal law as a plausible substitute for ICL convictions, concede that the former will not have the expressive force of the latter. 119Heller, supra note 58, at 131.

The problem with the simple expressivist account of ICL is that it artificially cabins “social meaning” and relies on a reductionist account of “humankind” that privileges the perspective of legally-trained professionals. 120Cf. Drumbl, supra note 115, at 598 (suggesting that complementarity may “ensconce ICC process and punishment preferences” at the expense of locally-grounded conceptions of justice). The simple expressivist account of ICL takes “social meaning” to describe the symbolic meaning that international lawyers (perhaps legally-trained professionals more generally) ascribe to ICL’s application. 121See id. Those who have studied ICL understand that when a conviction under ICL is secured, it symbolizes the broadest condemnation that can be leveled against an individual within a legal order. 122See id. at 592–93. Whether such a representative act produces social meaning in precisely the same way beyond the realm of legally-trained professionals, however, is difficult to say. Social meaning is not realized in neat or uniform ways. 123See Pierre Bourdieu, Language and Symbolic Power 39–40 (John B. Thompson ed., Gino Raymond & Matthew Adamson trans., 1991). As with any symbolic meaning, a given community will understand symbols through the lens of its own unique social situation, historical experience, and so forth. 124Id. Such understandings may be quite different from those of any other community. 125Id. A rigorous expressivist account of ICL prosecutions and convictions would explore such differential meanings in all their complexity. While such an endeavor is well beyond what is possible here, I offer a few tentative remarks on possible trajectories for such expressivist analysis.

We should expect a circumspect expressivist analysis to pay attention not only to the forms that ICL’s application takes, but also to the sociopolitical contexts in which those forms evolved and are applied. ICL scholars impute substantial moral and therapeutic power to a criminal trial and punishment. 126See Drumbl, supra note 115, at 576 (citations omitted). The imputation is notwithstanding the absence of empirical evidence substantiating it. 127See id. The inclination to ascribe great power to highly ritualized performances—like a criminal trial—is broadly shared. 128See SpearIt, Legal Punishment as Civil Ritual: Making Cultural Sense of Harsh Punishment, 82 Miss. L.J. 1, 10–17 (2013) (discussing the Judeo-Christian origins for Western Civilization’s conception of law). All organized societies have forms of ritual performance—whether secular, religious, or both—that are imagined as having the capacity to produce salutary effects. 129See id. The criminal trial represents a specific form of ritual performance—one that traces its lineage deeply into Judeo-Christian history. 130See id. This is to say that a criminal trial conforming to due process standards reflects a culturally specific process for resolving disputes. It is not a universal form of justice and it is counterproductive to proceed as if it were. Mark Drumbl has thoughtfully advanced an argument along these lines at length. 131See Drumbl, supra note 115, at 547–49. He persuasively argues that criminal trials have the potential to further “disenfranchise” those victimized by mass violence. 132See id. at 597–98. The criminal trial may not be responsive to the psychic needs of those communities for which it is not an organic justice ritual. 133See id. at 600. Worse, insisting that a criminal trial is the only acceptable form of a justice ritual may be reminiscent of colonial impositions of the not so distant past. 134See infra Part II.D.

This is all to say that the unanswered question of what law counts for complementarity purposes cannot be easily answered without also addressing what form of adjudication counts.

C. Politics, Sovereignty, and Justice

Those who imagine the ICC contributing to a new global, criminal justice order view complementarity as a mechanism for apolitically resolving conflicts between the ICC and states. Although some ICC insiders have suggested that such apolitical decision-making is already the order of the day, 135See Moreno-Ocampo, supra note 1, at 22–23. But see Drumbl, supra note 115, at 605. such a vision of complementarity seems more aspiration than reality. It is an important aspiration because sovereignty remains a defining feature of the international system. In addition, the prospect of a European-based court making political judgments about the quality of justice available in post-colonial states is symbolically fraught, to say the least. 136See Drumbl, supra note 115, at 601. However, the Rome Statute itself appears to require that the ICC make irreducibly political judgments in at least two dimensions. First, it calls for judgments about the quality of a State Party’s investigatory and adjudicatory efforts in particular cases if not its criminal justice system as a whole. 137Rome Statute, supra note 2, arts. 17(2)–(3). Second, the Rome Statute is likely to compel judgments about the adequacy of alternative resolution mechanisms—for example, non-western processes such as gacaca 138See Phil Clark, Hybridity, Holism, and “Traditional” Justice: The Case Of Gacaca Courts In Post-Genocide Rwanda, 36 Geo. Wash. Int’l L. Rev. 765, 778–89 (2007) (tracing the history of gacaca). —that may not conform to international due process norms. 139See Drumbl, supra note 115, at 600–01. Whether such processes should render a case inadmissible will require judgments about the processes’ fairness and expressive value. 140See Clark, supra note 138, at 804 (discussing the legitimacy of gacaca to deal with genocide). As suggested by the discussion in the preceding section, such judgments cannot be anything but “political” given the cultural specificity of any dispute-resolution mechanism. 141See supra Part II.B.

Article 17 seems to require that the Court make judgments about the integrity and quality of justice dispensed by a state that purports to be investigating or prosecuting the same case as that before the ICC. 142See Moreno-Ocampo, supra note 1, at 23. In particular, Article 17 requires judgment as to: a) whether a state is actually investigating or prosecuting the misconduct and if so, b) whether the state is “willing” and “able” to proceed in a manner that is “genuine.” 143Rome Statute, supra note 2, arts. 17(1)(a)–(b). Article 17 goes on to describe the factors that the Court should consider in assessing a state’s “unwillingness.” 144Id. art. 17(2). The factors include whether the state’s investigation or prosecution was undertaken “for the purpose of shielding” the defendant. 145Id. art. 17(2)(a). In addition, the Court considers whether the investigation or prosecution is “being conducted independently or impartially.” 146Id. art. 17(2)(c). The Court conducts both inquiries with sensitivity to “principles of due process recognized by international law.” 147Id. art. 17(2).

Assessment of state actors’ motivations, as Article 17(2)(a) requires, seems to demand a politically inflected analysis. Assuming that the relevant actors deny having had impermissible motives in undertaking particular official actions, the Court will have to assess the truth of such claims. Doing so will require making educated inferences based on a state actor’s relationship to the accused, the relevant conduct, and the broader political landscape. Such factual judgments are tricky in any context, but that is all the more true where an international tribunal is passing judgment on a state actor’s motivations. There is an obviously political dimension to the ICC given that it is a Hague-based tribunal largely focused on misconduct occurring in post-colonial states. The resonance with colonial hierarchies is potentially even more pitched when evaluating the “independence” or “impartiality” of a state’s investigative efforts. 148Cf. Nico Krisch, International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order, 16 Eur. J. Int’l L. 369, 400–04 (2005). While Article 17 suggests that the inquiry should pertain to only the case in question, 149Rome Statute, supra note 2, art. 17(1). it might be difficult to do so without some consideration of the broader institutional context. A state institution’s partiality when investigating or adjudicating a particular case may be a function of broader problems with those institutions. This is most likely to be true where underdevelopment has created significant rule of law gaps—an entirely common feature in large swathes of the post-colonial world. 150See supra Part II.A.1.

Dodging such tricky political questions is not obviously any less “political” than squarely addressing them. Michael Newton has expressed concern about the ICC impinging on states’ sovereign prerogatives. 151Newton, supra note 13, at 122. He notes that the drafters designed the Rome Statute’s complementarity scheme to secure the support of states that would otherwise have been hesitant to compromise their sovereignty. 152See id. Accordingly, he argues, the Court’s complementarity analysis should be deferential to states parties’ efforts to remedy ICL violations. 153Id. at 136–37. While Newton’s reading of the Rome Statute’s drafting history may be correct, deferring to sovereign prerogatives is no less “political” than not doing so. One benefit, perhaps the chief one, of the Court adopting Newton’s suggestion would be that, by so doing, the ICC would be transparently embracing a method for navigating the political dilemmas its founding document compels it to confront. However, the Court’s admissibility decisions in the Kenya cases suggest that the Court is disinclined to take such a route.

Among Kenya’s challenges to admissibility was a procedural argument that the Pre-Trial Chamber (PTC) erroneously refused to permit Kenya additional time to demonstrate that its investigation had progressed to include the defendants or others acting at a comparable level. 154See Appeals Chamber decision, supra note 100, para. 104. In upholding the PTC’s procedural rulings, the Appeals Chamber emphasized the discretion the PTC enjoys in making such determinations. 155Id. para. 108. This procedural determination might very well have saved the Appeals Chamber from having to wrestle with the difficult political questions suggested above 156In a vigorous dissent, Judge Anita Usacka took the majority to task for not wrestling with the difficult, but unanswered questions that complementarity implicates. Prosecutor v. Muthaura, Kenyatta, & Ali, Case No. ICC-01/09-02/11OA, Dissenting Opinion of Judge Anita Usacka, paras. 25–26 (Sept. 20, 2011), http://www.icc-cpi.int/iccdocs/doc/doc1234881.pdf. —had Kenya returned to the Court with evidence that its investigation, in some capacity, pertained to the defendants, it would have had to fully analyze the investigation under Article 17. 157See id. para. 27; see also Hansen, supra note 107, at 17 (criticizing the Court for not engaging admissibility challenge under Art. 17(2)).

Devising an apolitical complementarity framework for alternative resolution mechanisms is also likely impossible. Alternative resolution mechanisms describe dispute resolution practices that do not conform to the Western-style criminal trial—an individualized, truth-seeking process that is administered by a state and focused on establishing the appropriateness of imposing punishment upon a specific individual. 158See Clark, supra, note 138, at 822–23. Alternative resolution mechanisms might include local approaches to justice, such as the indigenous Rwandan practice of gacaca. 159See e.g., Clark supra, note 138, at 778 (stating that traditional gacaca was different than the state-supported practice created to adjudicate genocide cases). Such local dispute resolution mechanisms are as varied as are the local communities that rely upon them around the world. 160See Gregory Gordon, Complementarity and Alternative Forms of Justice, in 1 The International Criminal Court and Complementarity, supra note 1, 745, 752‒65 (describing representative examples of such dispute resolution mechanisms). As Gregory Gordon recently summarized, these mechanisms have “varying degrees of connection” to official State institutions and often permit broad community participation with the aim of achieving more “holistic” effects than is true for Western-style criminal trials. 161See id. at 752–53. Alternative resolution mechanisms also might include decidedly non local, official tribunals like truth and reconciliation commissions of the sort used in post-apartheid South Africa. 162See id. at 765–68. With these commissions there has been considerable variation regarding purpose and procedure. 163See id. at 766. The Rome Statute does not offer precise guidance on how to gauge the admissibility of cases regarding misconduct that have been (or will be) subject to an alternative resolution mechanism, but it does suggest a general approach.

Article 17’s language appears to require that the Court evaluate whether a particular alternative resolution mechanism is sufficiently connected to a state’s official justice system and affords process sufficiently analogous to that afforded in a Western-style criminal trial. Article 17 states that a case is inadmissible where it “is being investigated or prosecuted by a state which has jurisdiction over it.” 164Rome Statute, supra note 2, art. 17 (1)(a)–(b). In addition, Article 17 directs the Court to carry out the admissibility analysis with “regard to the principles of due process recognized by international law.” 165See id. art. 17(2). This language suggests that the Rome Statute’s drafters not only conceived of complementarity as a relation between the ICC and state institutions, but also took the Western-style trial as the evaluative reference point.

This reading of Article 17 is also consistent with commentary regarding alternative resolution mechanisms. Gregory Gordon has proposed a multi-factor test for evaluating admissibility challenges that emphasizes the alternate resolution mechanism’s “judicialization” and incorporation by the relevant state. 166Gordon, supra note 160, at 784–94. In contrast, Mark Drumbl has criticized the extent to which the Rome Statute and international law more generally have fetishisized Western-style criminal trials. 167See Drumbl, supra note 115, at 596–97. This is not merely a question of the Rome Statute’s text or drafting history. Drumbl’s work suggests that there is a deeper, epistemological explanation for the criminal trial’s centrality in the imaginings of post-atrocity justice. 168See id. at 567 International law scholars and professionals—the primary agents of ICL discourse—are typically acculturated in educational, practice, and social environments where the criminal trial is the sine qua non of justice following violence. 169Id. at 46. From their vantage, punishing wrongdoers and achieving broad healing for the communities affected by violence are coterminous enterprises. 170Id. This equation helps create what Payan Akhavan has called a “false sense of closure within a self-absorbed utopia.” 171See Akhavan, supra note 114, at 721. This anthropologically specific view predominates amongst the legal professionals who are responsible for steering ICL generally and the ICC in particular. 172See id.

Given the Rome Statute’s express language and the culture of international legal professionals, there is little reason to think that ICC will embrace a particularly permissive approach to alternative resolution mechanisms. This, in conjunction with the discussion in Subpart B, tends to suggest that a vigorous regime of complementarity is not likely to promote pluralism with regard to the form or content of post-atrocity justice. This is not troubling if one views ICL and, correspondingly, the criminal trial as providing a close proxy for universal justice. That view, however, is deeply problematic.

D. Speaking To The Subaltern

Complementarity discourse is tightly organized around the relationship between the ICC and sovereign states. 173See e.g., Jalloh, supra note 100, at 274–75 (noting that complementarity is the fundamental principle of relationship between ICC and sovereign states). While this may seem like a statement of the obvious, it invites the deeper questions of whom complementarity is supposed to benefit and, by extension, who ICL’s intended audience should be.

Positive complementarity’s enthusiasts aspire for an ICC that works alongside domestic courts to bring ICL violators to justice under a broadly shared set of substantive and procedural legal principles. 174See supra Part I. For some, sovereignty is not so much a lamentable obstacle as it is a neutral fact that defines the terms on which a global division of conflict-resolution labor will be realized. 175See Akhavan, supra note 114, at 714. For those liberal internationalists who view sovereignty as an impediment to global justice, positive complementarity is just a moment in a long historic process that remains incomplete. 176See Newton, supra note 13, at 119 (quoting Benjamin Ferencz, Address by Benjamin B. Ferencz to the Rome Conference on Creating a Permanent International Criminal Court (June 16, 1998), available at http://www.benferencz.org/index.php?id=4&article=85). By this view, complementarity reflects a familiar compromise—it reaffirms sovereignty’s continued vitality as the unhappy cost of obtaining state consensus for the development of international law and institutions. 177See Newton, supra note 13, at 163–64.

What is important for present purposes though, is that both groups share a universalist ideal as to what redress for mass atrocities should look like: criminal prosecutions according to uniform global norms of substance and procedure. 178See Akhavan, supra note 114, at 721. But, in what measure does such redress promote healing and closure for the “masses” that are the object of mass atrocities?

Nearly twenty-five years ago, Gayatri Spivak asked whether the subaltern can speak. 179See generally Gayatri Chakravorty Spivak, Can the Subaltern Speak?, in Colonial Discourse and Post-Colonial Theory: A Reader 66 (Patrick Williams & Laura Chrisman eds., 1994) (expressing pessimism about the possibility that the subalterns will be able to express their voice in post-colonial society). The basic premise of ICL’s universalist aspiration should impel us to ask a homologous question: Can the subaltern be spoken to? While it is beyond this essay’s scope to fully develop the inquiry as a theoretical matter, I raise the question to suggest that the complementarity debate reveals a more significant limitations of the ICC and ICL discourse generally.

“Subaltern” does not describe a fixed demographic group (e.g., a racial minority) per se, but rather a relation of dominance. 180See id. at 79–80. It is the relation of dominance that, among other things, separates those who are able to represent their interests to official power from those who are not. 181See id. This capacity is a function of both material privilege within a social structure and the attendant access to the dominant political vocabulary. 182See id. at 83. In the context of colonial India, for example, one can use the notion of subalternity to distinguish between the “native elites,” who became nationalist leaders, from “subsistence farmers, unorganized peasant labor, [and] the tribals.” 183See id. at 84. It is the native elite—Gandhi and Nehru—who are commemorated for having created an independent post-colonial State. 184See Ranajit Guha, On Some Aspects of the Historiography of Colonial India, in Selected Subaltern Studies 37, 38 (Ranajit Guha & Gayatri Chakravorty Spivak eds., 1988). While conventional historical accounts cast them as heroic representatives of all colonized Indians, the subaltern history depicts a significantly messier and less flattering account of the native elite. 185Jonathan Todres, Out of Africa: Reading Martin Chanock’s Scholarship in the Global North, 28 L. in Context 47, 50 (2010) (noting Martin Chanock’s identification of this point). Complicating any scholarly exploration of this dynamic is the simple fact that subaltern voices were not recorded. 186Spivak, supra note 179, at 82. The native elite purported to speak on behalf of subaltern groups—which is to say, subaltern groups’ interests were accounted for in a voice not their own. 187See id. at 80. This just restates the point that the possibility for authentic, subaltern self-representation was not possible in a nationalist discourse that was carried out between native elites and the colonial power. The subaltern were talked about rather than heard. 188See id. at 103–04. Accordingly, contemporary historiographic efforts to account for those voices can only be partial at best. But what they do reveal is that subaltern understandings of (elite) nationalist figures and anti-colonial struggle were often quite far-removed from how elite nationalist figures imagined themselves and their struggle. 189See Shahid Amin, Gandhi as Mahatma: Gorakhpur District, Eastern UP, 1921–2’, in Selected Subaltern Studies 288, 289‒94 (Ranajit Guha & Gayatri Chakravorty Spivak eds., 1988). At least two points about subalternity are relevant to a discussion of ICL.

First, it is frequently members of subaltern groups who bear the brunt of mass atrocities. 190See U.N. Security Council, Report of the International Commission of Inquiry on Darfur to the Secretary-General, 4, U.N. Doc. S/2005/60 (Feb. 1, 2005). It is, however, also frequently members of subaltern groups who perpetrate mass atrocities. 191Id. In Darfur, for instance, both the victims and perpetrators of mass violence have been members of heterogeneous groups that share divergent histories of extreme economic and political marginality. 192See Julie Flint, Beyond “Janjaweed,” Understanding the Militias of Darfur 11‒15 (Small Arms Survey HSBA Working Paper No. 17, 2009), available at http://www.smallarmssurveysudan.org/pdfs/HSBA-SWP-17-Beyond-Janjaweed.pdf. The victims do not share a single linguistic, ethnic, or tribal identity. 193See Kristina Hon, Bringing Cultural Genocide in by the Backdoor: Victim Participation at the ICC, 43 Seton Hall L. Rev. 359, 400 (2013).(Rule. 16.4) They do, however, share the economic and social status of being small-scale farmers. 194U.N. Security Council, supra note 190, para. 51. While they have been pejoratively called “African” by their attackers, that designation is not one that the victims themselves would have necessarily used to self-identify before the attacks. 195See id. para. 511. That is to say, the victims did not have ready access to the language of minority rights. Even if they had, there was no representative body to speak that language on their behalf.

It is tempting to think of the Janjaweed—the state-supported militias responsible for much violence in Darfur—as a homogeneous group. Such an assumption, however, is unwarranted. 196The state-supported militia consisted of members from different tribes and groups that saw opportunities to access land and political power. See Flint, supra note 192, at 14–15. The Janjaweed consists of heterogeneous groups including both Arabs and non-Arabs. 197See U.N. Security Council, supra note 190, paras. 101–04. The groups tend to be nomadic herders, many of whom are economically and politically marginal. 198See Flint, supra note 192, at 13. Compounding that marginality has been the breakdown of customary norms that permitted these groups access to water and grazing land. 199See id. Militia activity is the only way for such groups to secure any resources from the Sudanese state. 200See id. A recent report concludes that responding to mass violence in Darfur will require constructively engaging the groups that constitute the Janjaweed and responding to the underlying structural circumstances that impel individuals to join militias. 201See id. at 49. This prescription does not begin to speak to the complex questions of how to handle those who have perpetrated mass violence.

To the extent that a significant part of ICL’s broad purpose is to create the terms upon which community healing and closure may occur in the wake of mass atrocity, it must try to speak to subaltern groups. 202Trying may be all that is ever really possible, given that subalternity is a structural condition. The impossibility of unimpeded communication does not relieve one of the ethical obligation to try. Cf. Spivak, supra note 179, at 80, 104 (describing the intellectual’s obligation to try and represent subaltern voices). It is tempting to view complementarity as at least a partial answer to that question—national courts are better equipped for the task because of their proximity to subaltern groups. However, we should be skeptical of this suggestion given the structure of power in many post-colonial states.

This suggests a second point about subalternity: official state structures, courts included, in many post-colonial states are not well-equipped to meaningfully listen or speak to subaltern groups. The autocratic Sudanese state presents an extreme example—it is deeply implicated in the mass violence that has occurred in Darfur. 203See generally Flint, supra note 192. But even in more functional post-colonial states, 204They are the most plausible national collaborators. See supra Part I.A.1. the structure of political and judicial power was inherited from colonial predecessors. In many post-colonial States, the native nationalist elite simply took the reins of power from departing colonial authorities. 205Barbara Harrell-Bond, Legitimacy and the Politics of Status—an Abortive Legislative Change in Sierra Leone, 12 J. Legal Pluralism & Unofficial L. 21, 53 (1975). They did so without fundamentally reworking the relations of power that characterized the colonial States—this has meant that decolonization, for many subaltern groups, has simply meant that one group of elites supplanted another. In these post-colonial societies, subalternity remains a persistent feature. Landless peasants in rural India, nomadic pastoralists in Sudan, and street kids in the Global South 206Jonathan Todres, Rights Relationships and the Experience of Children Orphaned by AIDS, 41 U.C. Davis L. Rev. 417, 429, 461 (2007). are examples of the vast swathes of humanity that inhabit the Third World’s marginal spaces—the margin’s margins. These are groups that live in the deep shadows of both the formal economy and civil society.

Justice dispensed by a national court may be no better able to speak to subaltern groups within its borders than an international tribunal. The fact that a jurisdiction has incorporated ICL into its domestic code and developed some bureaucratic capacity to process ICL cases will not change this fact. Complementarity is largely preoccupied with how to best configure the division of labor between the ICC and domestic courts so as maximize the number of ICL prosecutions conforming to due process. 207See Burke-White, supra note 1, at 54–55. This all makes good sense if one accepts that more prosecutions means less impunity, which in turn means more justice. While this logic is impeccable within the world of legal professionals, 208See Akhavan, supra note 114, at 721. this does not mean that it will register as such in subaltern spaces.

III. Complementarity and Governmentality

The normative adjectives used to describe complementarity suggest too muscular (e.g., “proactive”) or too anemic (e.g., “passive”) a view of the ICC’s role in global justice. 209See Burke-White, supra note 1, at 54, 56. The discussion in Part II suggested that the more ambitious notions of positive complementarity draw the ICC into a universe of political, economic, and social questions that it is ill-equipped to handle. Even if the ICC surmounts those obstacles, it is unclear whether a regime of positive complementarity, under ideal circumstances, will benefit those most impacted by mass atrocities. An entirely negative account of complementarity, however, minimizes the ICC’s institutional significance. The institution’s creation was a milestone event and the Rome Statute does not evince an intention to create an institution that blithely defers to national institutions. 210See id. at 56–57. What then might a constructive conceptualization of complementarity look like?

At the risk of adding to the ever-expanding list of complementarity adjectives, “governmentality” may provide a useful framework for carrying out future analysis of complementarity. The notion of governmentality, 211Michel Foucault coined the term. See Michel Foucault, Governmentality, in The Foucault Effect: Studies in Governmentality 87 (Graham Burchell et al. eds. 1991). developed in sociology and anthropology might elucidate complementarity’s significance in two ways: 1) as a bureaucratic vocabulary whose development tracks changes in how actors within the ICC view the institution and its relationships to national criminal justice institutions; and, 2) as creating strategic opportunities for subordinated groups to leverage the ICC’s power to effect national and sub-national change.

Governmentality describes, among other things, 212Foucault goes into considerable detail about the effects that particular “techniques of power” have upon shaping both the conscious and unconscious conduct of individuals who are parts of particular groups. See id. at 95–100. institutions that rely upon instrumentalist reasoning and “secure[] legitimacy not by the participation of citizens . . . but by claiming to provide for the well-being” of populations. 213See Chatterjee, supra note 36, at 34. This is in contrast to liberal ideals of “deliberative openness” in which citizens are thought to shape government action by exerting political agency (e.g., by voting). 214See id. Instead, specialized bureaucracies populated by experts manage the problems that beset or are created by particular demographic groups—such as violent criminals, mass atrocity survivors, “at risk” children, and cigarette smokers. 215See id. at 35–37. Bureaucracies rely on technocratic frameworks built with specialized vocabularies to accomplish social effects, to manage relationships with other bureaucracies that have overlapping authority, and other ends. 216See Foucault, supra note 211, at 100‒03. In the course of performing these functions, institution-specific forms of common sense evolve and determine how particular problems, solutions, and demographic groups are conceived. 217See id.

Through a governmentality lens, one might analyze complementarity as a bureaucratic mechanism for managing institutional relations between the ICC and national criminal justice bureaucracies. Complementarity’s purpose should not be understood as either a recipe for a new order of global justice nor as a hindrance to sovereignty. Both of these accounts cast complementarity in bold, normative strokes—as answering axiomatic questions in international criminal justice. Through a governmentality lens, complementarity is best conceived as a structured dialogue amongst technocratic elites at the international and national levels. It creates a specialized vocabulary for negotiating the host of bureaucratic problems that attend investigation, prosecution, and adjudication in contexts where the authority to do so overlaps with a state’s. Those problems may often be completely unrelated to provisions in the Rome Statute—e.g., questions of legitimacy and developing institutional competence.

A governmentality-based approach that focuses upon bureaucratic culture will have the benefit of descriptive accuracy. For example, such an approach to complementarity might help us understand the extent to which legitimacy concerns informed the OTP’s arguments and the PTC’s admissibility decision in the Lubanga case. Lubanga was self-referred by the Democratic Republic of Congo (“DRC”). 218See Lubanga February Decision, supra note 106, para. 22 (Feb. 24, 2006), http://www.icc-cpi.int/iccdocs/doc/doc236260.pdf. At the time of the self-referral, a criminal case was pending against Lubanga in the DRC. 219See id. para. 23. In fact, the DRC had leveled charges against Lubanga that were more serious than those leveled against him in the ICC proceedings. 220See Newton, supra note 13, at 156 (noting that the DRC charged Lubanga with genocide, whereas the charges against Lubanga in the ICC pertained to conscripting child soldiers). Nonetheless, the PTC denied Lubanga’s admissibility challenge and announced the “same person, same conduct” test in so doing. 221See Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-8-Corr 17-03-2006, Decision to Issue Arrest Warrant, para. 37, 40 (Feb. 24, 2006), http://www.icc-cpi.int/iccdocs/doc/doc236260.pdf. While the DRC prosecution concerned the same person and encompassed more serious charges than those pending in the ICC, the charges were not the same. 222Id. para. 39. The Rome Statute did not dictate a clear admissibility result in Lubanga. It seems possible that there was a generalized sense within the ICC that it was important to take up (and hold onto) a case that it could plausibly investigate and resolve—to demonstrate that it is an institution worthy of the title “international” to consolidate its future funding stream to begin developing the institutional ability to process cases, and so on. 223See Jalloh, supra note 100, at 284; deGuzman, supra note 113, at 269.

Studying complementarity through the lens of governmentality is likely to have the additional benefit of helping identify how, if at all, the ICC may play a role in the struggles of subordinated groups. To the extent that governmentality helps to identify the configuration of political and social power that particular institutions create, it also may help to identify strategies for securing social and political benefits. To the extent that a subordinated group is waging a national or sub-national struggle against state institutions, complementarity is a mechanism by which the ICC might help advance such a struggle. The Rome Statute permits the OTP to consider petitions from non-state actors 224See Rome Statute, supra note 2, art. 15(2). —and the network of relationships that exist between the ICC and national bureaucracies may influence how attractive it is to create organizing strategies that involve the ICC. 225Cf. Christine Bjork & Juanita Goebertus, Complimentarity in Action: The Role of Civil Society and the ICC in Rule of Law Strengthening in Kenya, 14 Yale Hum. Rts. & Dev. L.J. 205, 225–26 (2011) (summarizing the view of the ICC in Kenya).

While complementarity is (and promises to continue being) a conceptually rich area of study, it would be constructive to approach it with more normative modesty. It is a good vehicle for understanding the evolving bureaucratic culture within the ICC. It also might be a useful way of understanding the relationships that evolve between the ICC and government elites within States, and suggest the terms on which subordinated groups might rely upon the ICC to effect national or sub-national change. Analysis that draws on notions of governmentality might help temper undue exuberance about the ICC’s likely effect on global justice. But it would do so without dismissing the ICC’s significance as a new global institution.

Conclusion

While complementarity promises to remain a conceptually rich area of study, it would be constructive to approach it with more normative modesty. The more ambitious notions of positive complementarity ignore the patterns of underdevelopment and politico-social fragmentation that characterize the post-colonial landscape. Complementarity is nonetheless an important framework for understanding the ICC’s evolving bureaucratic culture and its relationships with domestic criminal justice actors. These relationships may create strategic opportunities for subordinated groups to effect national or sub-national change. Analysis that draws on notions of governmentality will help temper undue exuberance about the likelihood of a new, coordinated global order for criminal justice. But it would do so without dismissing the ICC’s promise as an agent for good.

Footnotes

Assistant Professor of Law, Georgia State University College of Law. Thanks to Jonathan Todres, Natsu Saito, and Deepa Varadarajan for comments.

1See, e.g., Silvana Arbia & Giovanni Bassy, Proactive Complementarity: A Registrar’s Perspective, in 1 The International Criminal Court and Complementarity 52, 54‒55 (Carsten Stahn & Mohamed El Zeidy eds., 2011) (“positive complementarity,” “negative complementarity,” and “passive complementarity”); Michael Newton, The Quest For Constructive Complementarity, in 1 The International Criminal Court And Complementarity, supra, at 304 (“constructive complementarity”); William W. Burke-White, Proactive Complementarity: The International Criminal Court And National Courts In The Rome System Of International Justice, 49 Harv. Int’l L.J. 53, 54 (2008) (“proactive complementarity”).

2Rome Statute of the International Criminal Court pmbl., opened for signature July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002) [hereinafter Rome Statute].

3Burke-White, supra note 1, at 54 n.4.

4See id. at 54–55

5See id. at 55–56.

6See Burke-White, supra note 1, 65. While this has typically been true, there have been so-called hybrid tribunals that combine features of international and national courts. See David Luban et al., International And Transnational Criminal Law 122 (2010) (discussing the Special Court for Sierra Leone). These, however, have been conflict-specific like other international tribunals of the past. Laura A. Dickinson, The Promise of Hybrid Courts, 97 Am. J. Int’l L. 295, 295 (2003).

7Rome Statute supra note 2, pmbl, art. 1.

8The word complementarity arose during the drafting of the Rome Statute. See Observations of Governments on the Report of the Working Group on a Draft Statute for an International Criminal Court, 46th Sess., June 29, 1994, para. 35, (1994), reprinted in 2 Yearbook of the International Law Commission, 21 U.N. Doc. A/CN.4/SER.A/1994/Add.1 (Part I), U.N. Sales No. E.96.V.Z. (Part I) (1994).

9Prosecutor v. Lubanga, Case No. ICC 01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing, para. 34 n.38 (Nov. 8, 2006), http://www.icc-cpi.int/iccdocs/doc/doc243711.pdf.

10Luis Moreno-Ocampo, A Positive Approach To Complementarity: The Impact Of The Office Of The Prosecutor, in 1 The International Criminal Court And Complementarity, supra note 1, at 24.

11See Rome Statute, supra note 2, art. 17(1).

12See, e.g., id.; Carsten Stahn, Taking Complementarity Seriously, in 1 The International Criminal Court and Complementarity, supra note 1, at 233, 236; Christoph Burchard, Complementarity as Global Governance, in 1 The International Criminal Court and Complementarity, supra note 1, at 167, 169.

13See, e.g., Carsten Stahn, Introduction, in 1 The International Criminal Court And Complementarity, supra note 1, at 1, 8–12; Alexander K.A. Greenawalt, Complimentarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court, 50 Va. J. Int’l L. 107, 122–24 (2009); Michael Newton, The Complementarity Conundrum: Are We Watching Evolution or Evisceration?, 8 Santa Clara J. Int’l L. 1, 133–37 (2010).

14See Rome Statute, supra note 2, art.17(1)(a)–(b).

15See id. art. 17(2)(a).

16See id. art. 17(2)(b).

17See id. art. 19(2).

18See id. art. 18(1).

19See id. art. 19(4).

20See Burke-White, supra note 1, at 64–65.

21Compare Rome Statute, supra note 2, arts. 5, 27, with Statute of the International Criminal Tribunal for the Former Yugoslavia arts. 3–5, 7, U.N. Doc. S/RES/827, (May 25, 1993) (adopting the Statute as proposed by the Secretary-General in U.N. Secretary-General, Rep. of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N. Doc. S/25704, Annex (May 3, 1993).

22See generally Luban, supra note 6, at 95–129.

23Rome Statute, supra note 2, art. 12; Madeline Morris, High Crimes and Misconceptions: The ICC and Non-Party States, 64 Law & Contemp. Probs. 13, 13–14, 14 n.3 (2001).

24See Burke-White, supra note 1, at 54, 66–67.

25See Arbia & Bassy, supra note 1, at 55; Burke-White, supra note 1, at 56.

26See, e.g., Burke-White, supra note 1, at 56.

27See, e.g., Moreno-Ocampo, supra note 10, at 23–24; Stahn, supra note 12, at 261; Burke-White, supra note 1, at 56‒57. Throughout the paper, unless specifically noted otherwise, I will use the adjective “positive” generically to refer to the body of commentators who take such a view.

28See Burke-White, supra note 1, at 57–58.

29See Burchard, supra note 12, at 180.

30See Moreno-Ocampo, supra note 10, at 23–24.

31Burke-White, supra note 1, at 57.

32See Rome Statute, supra note 2, arts. 18, 86, 87, 93.

33See Burchard, supra note 12, at 167 (applying “global governance theory” to complementarity); Burke-White, supra note 1, at 57 (describing the “Rome System of Justice”).

34See, e.g., Newton, supra note 13, at 119 (quoting Benjamin Ferencz, Address to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court (June 16, 1998)).

35See Moreno-Ocampo, supra note 10, at 23–24.

36See Partha Chatterjee, The Politics of the Governed 37 (2004) (describing politics of development in post-colonial states).

37See Juan Carlos Botero & Alejandro Ponce, Measuring The Rule of Law 5 (The World Justice Project, Working Paper Series, Paper No. 001 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1966257.

38See, e.g., Roberto Laver, The World Bank and Judicial Reform: Overcoming “Blind Spots” in the Approach To Judicial Independence, 22 Duke J. Comp. & Int’l L. 183, 185‒87 (2012).

39See id.

40See Mark David Agrast et al., The World Justice Project: Rule Of Law Index 2012‒2013, at 25 (2013), available at http://worldjusticeproject.org/sites/default/files/WJP_Index_Report_2012.pdf.

41Id. at 11.

42Compare Int’l Crim. Ct., http://www.icc-cpi.int/EN_Menus/ICC/Pages/default.aspx (last visited June 26, 2013) (listing situations being investigated) with Rule Of Law Index Map, World Just. Project, http://worldjusticeproject.org/rule-law-index-map (last visited Oct. 19, 2013).

43See Rome Statute, supra note 2, art. 17.

44See id. arts. 17(2)–(3).

45See Burke-White, supra note 1, at 57.

46Cf. Chatterjee, supra note 36, at 37.

47This would disqualify states with extraordinarily weak governments where there is minimal or no judicial capacity—e.g., Rwanda in the immediate wake of the 1994 genocide. See John T. Holmes, Complementarity: National Courts versus the ICC, in 1 The Rome Statute of the International Criminal Court: A Commentary 667, 668 (Antonio Cassese et al eds., 2002). Sudan is an example of a government that is so completely complicit in the violence that any tribunal it established would be suspect. See Robert Cryer, Darfur: Complementarity As The Drafters Intended, in 1 The International Criminal Court And Complementarity, supra note 1, at 1097, 1107–11, 1113–15, 1117–18.

48See Int’l Dev. Ass’n, Project Appraisal Document on a Proposed Credit in the Amount of SDR 78.9 Million to the Republic of Kenya for a Judicial Performance Improvement Project, Report No. 72979-KE, 1–3 (Oct. 22, 2012).

49Brian D. Lepard, How Should The ICC Prosecutor Exercise His Or Her Discretion? The Role Of Fundamental Ethical Principles, 43 J. Marshall L. Rev. 553, 556 (2010).

50See Int’l Dev. Ass’n, supra note 48, at 3.

51Id.

52Id. at 2–3.

53Id. at 3.

54Id. at 1.

55Id.

56Id. at ii.

57See supra notes 48–56 and accompanying text.

58See Kevin Jon Heller, A Sentence-Based Theory of Complementarity, 53 Harv. Int’l L.J. 202, 247–48 (2012).

59See id. at 216. There are various reasons for this, but one important one is that proving an ICL violation will often require proof of “a particular contextual element,” e.g., widespread and systematic against a civilian population for crimes against humanity. Id.

60Id.

61See Int’l Dev. Ass’n, supra note 48, at 6.

62See Jane E. Stromseth, Pursuing Accountability for Atrocities After Conflict, What Impact on Building the Rule of Law, 38 Geo. J. Int’l L. 251, 266 (2007).

63 See Burke-White, supra note 1, at 96–98.

64See Morten Bergsmo et al., Complementarity After Kampala: Capacity Building and the ICC’s Legal Tools, 2 Goettingen J. Int’l L. 791, 798 (2010).

65See Burke-White, supra note 1, at 95. Burke-White advocates for the ICC playing a role in mobilizing “external resource networks” to promote judicial reforms in States that are unwilling or unable to prosecute ICL violations. Id. It is, however, unclear as to what precisely this might mean and whether the ICC would have any expertise to offer with regard to the moral and technocratic questions that are implicated by rule-of-law type development assistance. See supra Part II.A.1.

66Burke-White, supra note 1, at 95–96; Joseph M. Isanga, The International Criminal Court Ten Years Later, 21 Cardozo J. Int’l & Comp. L. 235, 247 (2013).

67Situations and Cases, Int’l Crim. Ct., http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx (last visited Feb. 1, 2014).

68Jon Silverman, Ten Years, $900 Million, One Verdict: Does the ICC Cost Too Much, BBC News Magazine (Mar. 14, 2012), http://www.bbc.co.uk/news/magazine-17351946.

69See supra Part I.A.1.

70See Laver, supra note 38, at 199–200.

71Bergsmo, supra note 64, at 798.

72See Rome Statute, supra note 2, art. 86.

73Id. pmbl.

74Id. arts. 86–87.

75See id.

76Burke-White, supra note 1, at 89, 93.

77Id. at 86.

78Rome Statute, supra note 2, arts. 17, 19.

79Burke-White, supra note 1, at 86.

80Id.

81Id.

82See supra Part II.A.2.

83See supra Part II.A.1.

84See, e.g., Heller, supra note 58, at 88–89, 97 (describing “hard mirror” and “soft mirror” theses of complementarity).

85See id. at 88–89, 97.

86Kevin Jon Heller nicely summarizes (and critiques) the various positions in a recent article. See generally id. Proponents of the “hard mirror thesis” insist that only investigations/prosecutions under ICL satisfy complementarity. Id. at 88‒89. Proponents of the “soft mirror thesis,” on the other hand, suggest that while prosecutions under domestic law may suffice, prosecutions under ICL would clearly be superior. Id. at 97.

87See Rome Statute, supra note 2, art. 17(2); Heller, supra note 58, at 88.

88See id.

89See generally Rome Statute, supra note 2, art. 17.

90The Pre-Trial Chamber recently interpreted the Rome Statute when it denied Libya’s challenge to the admissibility of the case against Saif Al-Islam Gaddafi. Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, paras. 85–88 (May 31, 2013), http://www.icc-cpi.int/iccdocs/doc/doc1599307.pdf. The PTC’s discussion, however, was brief and did not have tremendous bearing on the outcome of the admissibility challenge. For a summary and discussion of the ruling, see M. Christopher Pitts, Being Able To Prosecute Saif Al-Islam Gaddafi: Applying Article 17(3) Of The Rome Statute To Libya, 27 Emory Int’l L. Rev. 1291 (2013). Kevin Jon Heller has also persuasively argued that the Rome Statute does not require that a domestic prosecution be pursuant to ICL to render a case inadmissible . See Heller, supra note 58, at 88–92.

91See Rome Statute, supra note 2, art. 17(1)(a).

92Id.; see also id. art. 20(3) (stating that an individual who has already been tried by a domestic court cannot be tried again before the ICC).

93See id. art. 17(2).

94Id. arts. 17(2)(a), 20(3)(a).

95See e.g., Heller, supra note 58, at 204.

96Rome Statute, supra note 2, art. 17(1)(a) (emphasis added).

97Black’s Law Dictionary 243 (9th ed. 2009).

98The Rome Statute, supra note 2, art. 17(1)(a).

99See Prosecutor v. Muthaura, Kenyatta, & Ali, Case No. ICC 01/09-02/11OA, Judgment on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial Chamber II Of 30 May 2011 Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute” para. 27, (Aug. 30, 2011), http://www.icc-cpi.int/iccdocs/doc/doc1223134.pdf. [hereinafter Kenya Admissibility Decision] (“In the view of Kenya . . . [the admissibility test that applies is] the test developed by the Pre-Trial Chamber in the Article 15 Decision should be applied to the Admissibility Challenge. According to that test, the national proceedings must ‘cover the same conduct in respect of persons at the same level in the hierarchy being investigated by the ICC.”) The Appeals Chamber rejected Kenya’s argument. Id. para. 41.

100Charles Jalloh, Kenya vs. The ICC Prosecutor, 53 Harv. Int’l L.J. Online 269, 270 (2013), http://www.harvardilj.org/wp-content/uploads/2012/09/HILJ-Online_53_Jalloh2.pdf; see also Kenya Admissibility Decision, supra note 99, para. 40. (Aug. 30, 2011), http://www.icc-cpi.int/iccdocs/doc/doc1223134.pdf.

101Kenya Admissibility Decision, supra note 99, para. 39.

102See Jeffrey Gettleman, Kenyatta is Declared the Victor in Kenya, but Opponent Plans to Appeal, N.Y. Times, Mar. 9, 2013, at A8.

103Kenya Admissibility Decision, supra note 99, paras. 51, 69.

104Id. paras. 40, 46.

105Id.

106See Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case Against Mr. Thomas Lubango Dyilo, paras. 37–38 (Feb. 24, 2006), [hereinafter Lubanga February Decision] http://www.icc-cpi.int/iccdocs/doc/doc236260.pdf.

107See Thomas Obel Hansen, A Critical Review of the ICC’s Recent Practice Concerning Admissibility Challenges and Complementarity, 13 Melb. J. Int’l L. 1, 7 (2012); Newton, supra note 13, at 156.

108The Appeals Chamber has yet to consider Libya’s admissibility challenge to the case against Saif Al-Islam Gaddafi. See supra note 90.

109Lubanga February Decision, supra note 106, paras. 37–39.

110Newton, supra note 13, at 156; Jalloh, supra note 100, at 282–84

111See supra notes 96–98 and accompanying text.

112Heller, supra note 58, at 130–32.

113See Margaret M. deGuzman, Choosing To Prosecute: Expressive Selection At The International Criminal Court, 33 Mich. J. Int’l. L. 265, 269‒70, 313‒17 (2012); Heller, supra note 58, at 130–31.

114See Payam Akhavan, The International Criminal Court Context: Mediating The Global And Local In The Age Of Accountability, 97 Am J. Int’l L. 712, 721 (2003) (quoting Letter from Hannah Arendt to Karl Jaspers, Aug. 17, 1946, in Hannah Arendt-Karl Jaspers Correspondence, 1926‒1969, at 51, 54 (Lotte Kohler & Hans Saner eds., 1992)).

115See Mark Drumbl, Collective Violence And Individual Punishment: The Criminality Of Mass Atrocity, 99 Nw. U. L. Rev. 539, 545–46, 590‒91 (2005).

116See deGuzman, supra note 113, at 316; Heller, supra note 58, at 130–31.

117See, e.g., Joel Feinberg, Doing & Deserving: Essays in the Theory of Responsibility 98 (1970); Dan M. Kahan, The Secret Ambition of Deterrence, 113 Harv. L. Rev. 413, 419–20 (1999).

118Of course, a more nuanced expressivist account is possible, but this is the short version of the textbook account that is routinely deployed in ICL literature. See, deGuzman, supra note 113, at 278–81 (summarizing views regarding the “ephemeral global community” for which international tribunals purport to speak); Heller, supra note 58, at 130–31.

119Heller, supra note 58, at 131.

120Cf. Drumbl, supra note 115, at 598 (suggesting that complementarity may “ensconce ICC process and punishment preferences” at the expense of locally-grounded conceptions of justice).

121See id.

122See id. at 592–93.

123See Pierre Bourdieu, Language and Symbolic Power 39–40 (John B. Thompson ed., Gino Raymond & Matthew Adamson trans., 1991).

124Id.

125Id.

126See Drumbl, supra note 115, at 576 (citations omitted).

127See id.

128See SpearIt, Legal Punishment as Civil Ritual: Making Cultural Sense of Harsh Punishment, 82 Miss. L.J. 1, 10–17 (2013) (discussing the Judeo-Christian origins for Western Civilization’s conception of law).

129See id.

130See id.

131See Drumbl, supra note 115, at 547–49.

132See id. at 597–98.

133See id. at 600.

134See infra Part II.D.

135See Moreno-Ocampo, supra note 1, at 22–23. But see Drumbl, supra note 115, at 605.

136See Drumbl, supra note 115, at 601.

137Rome Statute, supra note 2, arts. 17(2)–(3).

138See Phil Clark, Hybridity, Holism, and “Traditional” Justice: The Case Of Gacaca Courts In Post-Genocide Rwanda, 36 Geo. Wash. Int’l L. Rev. 765, 778–89 (2007) (tracing the history of gacaca).

139See Drumbl, supra note 115, at 600–01.

140See Clark, supra note 138, at 804 (discussing the legitimacy of gacaca to deal with genocide).

141See supra Part II.B.

142See Moreno-Ocampo, supra note 1, at 23.

143Rome Statute, supra note 2, arts. 17(1)(a)–(b).

144Id. art. 17(2).

145Id. art. 17(2)(a).

146Id. art. 17(2)(c).

147Id. art. 17(2).

148Cf. Nico Krisch, International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order, 16 Eur. J. Int’l L. 369, 400–04 (2005).

149Rome Statute, supra note 2, art. 17(1).

150See supra Part II.A.1.

151Newton, supra note 13, at 122.

152See id.

153Id. at 136–37.

154See Appeals Chamber decision, supra note 100, para. 104.

155Id. para. 108.

156In a vigorous dissent, Judge Anita Usacka took the majority to task for not wrestling with the difficult, but unanswered questions that complementarity implicates. Prosecutor v. Muthaura, Kenyatta, & Ali, Case No. ICC-01/09-02/11OA, Dissenting Opinion of Judge Anita Usacka, paras. 25–26 (Sept. 20, 2011), http://www.icc-cpi.int/iccdocs/doc/doc1234881.pdf.

157See id. para. 27; see also Hansen, supra note 107, at 17 (criticizing the Court for not engaging admissibility challenge under Art. 17(2)).

158See Clark, supra, note 138, at 822–23.

159See e.g., Clark supra, note 138, at 778 (stating that traditional gacaca was different than the state-supported practice created to adjudicate genocide cases).

160See Gregory Gordon, Complementarity and Alternative Forms of Justice, in 1 The International Criminal Court and Complementarity, supra note 1, 745, 752‒65 (describing representative examples of such dispute resolution mechanisms).

161See id. at 752–53.

162See id. at 765–68.

163See id. at 766.

164Rome Statute, supra note 2, art. 17 (1)(a)–(b).

165See id. art. 17(2).

166Gordon, supra note 160, at 784–94.

167See Drumbl, supra note 115, at 596–97.

168See id. at 567

169Id. at 46.

170Id.

171See Akhavan, supra note 114, at 721.

172See id.

173See e.g., Jalloh, supra note 100, at 274–75 (noting that complementarity is the fundamental principle of relationship between ICC and sovereign states).

174See supra Part I.

175See Akhavan, supra note 114, at 714.

176See Newton, supra note 13, at 119 (quoting Benjamin Ferencz, Address by Benjamin B. Ferencz to the Rome Conference on Creating a Permanent International Criminal Court (June 16, 1998), available at http://www.benferencz.org/index.php?id=4&article=85).

177See Newton, supra note 13, at 163–64.

178See Akhavan, supra note 114, at 721.

179See generally Gayatri Chakravorty Spivak, Can the Subaltern Speak?, in Colonial Discourse and Post-Colonial Theory: A Reader 66 (Patrick Williams & Laura Chrisman eds., 1994) (expressing pessimism about the possibility that the subalterns will be able to express their voice in post-colonial society).

180See id. at 79–80.

181See id.

182See id. at 83.

183See id. at 84.

184See Ranajit Guha, On Some Aspects of the Historiography of Colonial India, in Selected Subaltern Studies 37, 38 (Ranajit Guha & Gayatri Chakravorty Spivak eds., 1988).

185Jonathan Todres, Out of Africa: Reading Martin Chanock’s Scholarship in the Global North, 28 L. in Context 47, 50 (2010) (noting Martin Chanock’s identification of this point).

186Spivak, supra note 179, at 82.

187See id. at 80.

188See id. at 103–04.

189See Shahid Amin, Gandhi as Mahatma: Gorakhpur District, Eastern UP, 1921–2’, in Selected Subaltern Studies 288, 289‒94 (Ranajit Guha & Gayatri Chakravorty Spivak eds., 1988).

190See U.N. Security Council, Report of the International Commission of Inquiry on Darfur to the Secretary-General, 4, U.N. Doc. S/2005/60 (Feb. 1, 2005).

191Id.

192See Julie Flint, Beyond “Janjaweed,” Understanding the Militias of Darfur 11‒15 (Small Arms Survey HSBA Working Paper No. 17, 2009), available at http://www.smallarmssurveysudan.org/pdfs/HSBA-SWP-17-Beyond-Janjaweed.pdf.

193See Kristina Hon, Bringing Cultural Genocide in by the Backdoor: Victim Participation at the ICC, 43 Seton Hall L. Rev. 359, 400 (2013).(Rule. 16.4)

194U.N. Security Council, supra note 190, para. 51.

195See id. para. 511.

196The state-supported militia consisted of members from different tribes and groups that saw opportunities to access land and political power. See Flint, supra note 192, at 14–15.

197See U.N. Security Council, supra note 190, paras. 101–04.

198See Flint, supra note 192, at 13.

199See id.

200See id.

201See id. at 49.

202Trying may be all that is ever really possible, given that subalternity is a structural condition. The impossibility of unimpeded communication does not relieve one of the ethical obligation to try. Cf. Spivak, supra note 179, at 80, 104 (describing the intellectual’s obligation to try and represent subaltern voices).

203See generally Flint, supra note 192.

204They are the most plausible national collaborators. See supra Part I.A.1.

205Barbara Harrell-Bond, Legitimacy and the Politics of Status—an Abortive Legislative Change in Sierra Leone, 12 J. Legal Pluralism & Unofficial L. 21, 53 (1975).

206Jonathan Todres, Rights Relationships and the Experience of Children Orphaned by AIDS, 41 U.C. Davis L. Rev. 417, 429, 461 (2007).

207See Burke-White, supra note 1, at 54–55.

208See Akhavan, supra note 114, at 721.

209See Burke-White, supra note 1, at 54, 56.

210See id. at 56–57.

211Michel Foucault coined the term. See Michel Foucault, Governmentality, in The Foucault Effect: Studies in Governmentality 87 (Graham Burchell et al. eds. 1991).

212Foucault goes into considerable detail about the effects that particular “techniques of power” have upon shaping both the conscious and unconscious conduct of individuals who are parts of particular groups. See id. at 95–100.

213See Chatterjee, supra note 36, at 34.

214See id.

215See id. at 35–37.

216See Foucault, supra note 211, at 100‒03.

217See id.

218See Lubanga February Decision, supra note 106, para. 22 (Feb. 24, 2006), http://www.icc-cpi.int/iccdocs/doc/doc236260.pdf.

219See id. para. 23.

220See Newton, supra note 13, at 156 (noting that the DRC charged Lubanga with genocide, whereas the charges against Lubanga in the ICC pertained to conscripting child soldiers).

221See Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-8-Corr 17-03-2006, Decision to Issue Arrest Warrant, para. 37, 40 (Feb. 24, 2006), http://www.icc-cpi.int/iccdocs/doc/doc236260.pdf.

222Id. para. 39.

223See Jalloh, supra note 100, at 284; deGuzman, supra note 113, at 269.

224See Rome Statute, supra note 2, art. 15(2).

225Cf. Christine Bjork & Juanita Goebertus, Complimentarity in Action: The Role of Civil Society and the ICC in Rule of Law Strengthening in Kenya, 14 Yale Hum. Rts. & Dev. L.J. 205, 225–26 (2011) (summarizing the view of the ICC in Kenya).