This is an important book on current international criminal law interventions in Africa. Sarah Nouwen provides a detailed analysis of the International Criminal Court's (ICC) involvement in Uganda and Sudan. While her focus (and training) is legal, she looks at the ways in which the ICC triggers political and legal processes. It is an evaluation of the ICC and the concurrent domestic moves vis-à-vis this ‘global’ court.
Nouwen focuses her analysis on one notion: complementarity. Complementarity is an admissibility rule (Article 17 of the Rome Statute) that stipulates that genuine domestic investigations and prosecutions can render ICC cases inadmissible. As a result of this rule, people expected more trials, prosecutions and investigations in the domestic courts. In her analysis, though, Nouwen distinguishes complementarity as an admissibility rule from complementarity as a ‘big idea’, into the latter of which many projected responsibilities and obligations for states. In order to follow complementarity's ‘double life’, Nouwen traces what she calls its ‘catalysing effects’. As case studies, Nouwen chose two ‘firsts’: northern Uganda as the first self-referral to the Court by a state party and the Darfur situation as the first to be referred to the Court by the UN Security Council. Nouwen adopts a methodology that is ‘committed to realism’ (p. 26). While for social scientists, the explanation that her study is empirical because it tries to understand ‘what actually is’ (p. 27) is somewhat vague, for a legal scholarship, this is probably new terrain.
The book is structured in six parts, preceded by a Prologue and followed by an Epilogue which frames the study with a personal note on the position of the researcher in a sometimes tense environment. Chapter 1 introduces the author's approach to the object of study. Chapter 2 traces the legal notion of complementarity from the inception of the ICC and demonstrates its ultimate ambiguity. Nouwen shows that the ICC has adopted a legalistic perspective. While the ICC cannot prohibit states from using amnesties, its understanding of complementarity is limited to criminal investigations and prosecutions (leaving out alternative mechanisms such as truth commissions). Nouwen arrives at the sober conclusion that the ICC pursues a ‘total war on impunity’ (p. 108), which governments have to join in if they want to have their sovereignty protected.
Chapter 3 tackles the complex history of the ICC's involvement in the conflict between the Government of Uganda (GoU) and the Lord's Resistance Army. In 2004, the GoU referred the ‘situation concerning the Lord's Resistance Army’ on its territory to the Court, hoping the intervention would serve its military interests and restore its damaged international reputation. While the ICC intervention has triggered some changes in the Ugandan legal situation (e.g. the International Criminal Court Bill and Amnesty Amendments Bill), the ‘marriage of convenience’ (p. 116) between the ICC and the GoU started to break apart during the Juba peace talks in 2006. Domestically, the calls for a resolution of the conflict through talks rather than trials grew louder and the GoU began to sympathise with mechanisms that run counter to the ICC's legalistic approach. Hence, indirectly through complementarity domestic non-judicial alternatives to the ICC became possible even though most of these activities successfully sideline the question of an investigation into the Ugandan People's Defence Force.
Chapter 4 turns to the Darfur situation. For the ICC, Darfur's referral was a legal milestone and a political victory with the US and China not using their veto right. The Government of Sudan (GoS) has from the very beginning rejected the referral, the investigation and the arrest warrant for President Bashir and generally denied any applicability of the Rome Statute. It saw the referral as political interference of the West. Accordingly, it reacted in a political manner by courting the Security Council members and offering a few political measures. Nouwen argues that one cannot see any direct effects of the notion of complementarity in Sudan but, like in northern Uganda (albeit for different reasons), the ICC's involvement in the Darfur situation fostered an interest in transitional justice, triggered the establishment of domestic accountability mechanisms, pushed for the adoption of laws on international crimes, put accountability on the agenda of peace negotiations and even furthered ‘traditional justice’ (non-judicial) mechanisms.
Chapters 3 and 4 offer a detailed explanation of the effects which were expected but did not materialise. Interestingly, the only effect that would be directly relevant to an admissibility challenge on the ground of complementarity, namely more trials, prosecutions or investigations, happened neither in Uganda nor in Sudan. Unlike in Sudan, Nouwen observes a slight shift in Uganda; the few measures the GoS undertook, however, should be seen as attempts to satisfy the international community rather than as efforts to render the ICC's cases inadmissible on the grounds of Article 17.
Against this background, Nouwen attempts to explain complementarity's weak catalysing effect on domestic proceedings in Chapter 5. Legally, it is clear: the Rome Statute recognises states' primary right to conduct proceedings for conflict-related crimes but it does not oblige states to do so. Beyond that, there are several reasons why the principle has not delivered on the expectation to see more domestic trials and investigations. First, there has been lots of confusion, ambiguity and misunderstandings around it. For instance, national and international officials believe that willingness and ability to prosecute are assessed situation-wide, while the Statute clearly stipulates a legalistic case-by-case approach. Second, the respective domestic contexts are often not conducive for the complementarity norm to be adopted. Furthermore, the assumption that states would engage in a cost-benefit analysis and come to the conclusion that domestic proceedings are better than an ICC intervention ignores the fact that political inaction is often more profitable than action.
Although Nouwen analytically separates the ICC from domestic political actors throughout the book, in the last few pages she clarifies this point in two ways. First, she claims that the ICC itself has been double-faced with respect to encouraging domestic proceedings (p. 399). Second, and more controversially, Nouwen holds the ICC to account. The ICC itself is involved in a patronage network in which it ‘accepts impunity with respect to the powers on whose cooperation it depends in order to achieve accountability for others' (p. 402).
As a (legal) anthropologist I found it refreshing to read a scholarly work that asks how and whether legalisation of a conflict happens. While Nouwen demonstrates intimate knowledge of two very complex political situations, her analysis remains on the legal, institutional and discursive level. Her argument, however, seems to be that the question whether the legal has any effects must ultimately be answered in the political realm. Here, one would have liked to see this interplay between the legal and the political conceptualised more explicitly. Yet the fact that Nouwen raises this question ‘committed to realism’ should generate exciting and urgently needed debates in Africa and beyond.
