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Unintended Positive Complementarity: Why International Criminal Court Investigations May Increase Domestic Human Rights Prosecutions

Published online by Cambridge University Press:  29 November 2017

Geoff Dancy  and
Florencia Montal
Geoff Dancy
Affiliation:
Associate Professor at Tulane University.
Florencia Montal
Affiliation:
Ph.D. candidate at the University of Minnesota.
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Extract

The International Criminal Court (ICC) is controversial, acutely so in Africa. The first thirty-nine people it indicted were all African. It did not open any formal investigations outside Africa until the 2016 decision to investigate conduct related to the 2008 Georgia-Russia war. The first three notifications of withdrawal from the ICC Statute, each made in 2016, were by Burundi, South Africa, and Gambia. While South Africa and Zambia reversed their initial intentions, Burundi in fact became the first state party to withdraw from the ICC in October 2017. These maneuvers are closely connected to country-specific political and legal considerations, but they overlap with concerns expressed by governments in other countries including Kenya and Namibia. Among these concerns is that “the ICC has become the greatest threat to Africa's sovereignty, peace and stability,” and that “the ICC is a colonial institution under the guise of international justice.”

Type
Notes and Comments
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American Journal of International Law , Volume 111 , Issue 3 , July 2017 , pp. 689 - 723
Copyright
Copyright © 2017 by The American Society of International Law 

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References

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8 Emphasis added. Geoff Dancy, Francesca Lessa, Bridget Marchesi, Leigh A. Payne, Gabriel Pereira & Kathryn Sikkink, The Transitional Justice Research Collaborative: Bridging the Qualitative-Quantitative Divide with New Data (2014), at www.transitionaljusticedata.com.

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28 “[I]nternational crimes include war crimes, crimes against humanity, genocide, torture, … aggression, and some extreme forms of terrorism … .” Antonio Cassese, International Criminal Law 24 (2003).

29 We do not here examine national prosecutions of private actors for abuses not constituting international crimes.

30 William A. Schabas, An Introduction to the International Criminal Court 101 (2d ed. 2004).

31 First, countries under International Criminal Court (ICC) investigation often did not implement laws criminalizing acts like crimes against humanity prior to the situation in question, meaning that prosecution would be retroactive. Second, states have been hesitant to establish courts specifically tasked to try core international crimes. And third, when states do establish these courts—as in Uganda's International Crimes Division—they are made operationally weak. See Kenyans for Peace, Truth & Justice, Securing Justice: Establishing a Domestic Mechanism for the 2007/2008 Post-election Violence in Kenya (2013); Human Rights Watch, Kenya: Swiftly Enact Special Tribunal: International Criminal Court Should Be a Last Resort for Justice (Mar. 25, 2009), at https://www.hrw.org/news/2009/03/25/kenya-swiftly-enact-special-tribunal; Human Rights Watch, Justice for Serious Crimes Before a National Court: Uganda's International Crimes Division (2012), available at https://www.hrw.org/sites/default/files/reports/uganda0112ForUpload_0.pdf. See generally, Ward N. Ferdinandusse, Direct Application of International Criminal Law in National Courts (2006).

32 Mark Berlin, Implementing International Law: The Criminalization of Atrocities in Domestic Legal Systems Since World War II (2015).

33 See, e.g., Uganda's Museveni Praises Kenya for Rejecting ICC “Blackmail,” Daily Nation (Apr. 9, 2013), at http://www.nation.co.ke/news/politics/Ugandas-Museveni-praises-Kenya-for-rejecting-ICC-blackmail/1064-1743650-15lxuf7/index.html.

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35 Extensive and detailed research suggests that leaders are very sensitive to outside perceptions of their willingness to commit to and abide by international human rights legal norms. See Simmons, supra note 14, at 80–111. See also Ryan Goodman & Derek Jinks, Socializing States: Promoting Human Rights Through International Law (2013). For recognitional legitimacy, see Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law, at ch. 6 (2004).

36 These statements about preliminary examination should be interpreted in light of two additional facts. The first is that, de facto, the Office of the Prosecutor (OTP) has followed a “bifurcated” approach, wherein state or Security Council referrals move swiftly through the preliminary examination stage, but proprio motu cases progress much more slowly. This is probably because the prosecutor is under more political pressure when she brings the case independently. See Bosco, David, Discretion and State Influence at the International Criminal Court: The Prosecutor's Preliminary Examinations , 111 AJIL 395 (2017)CrossRefGoogle Scholar. This might also mean that in proprio motu situations, the prosecutor can be more deliberate, and can attempt to invigorate domestic proceedings. Indeed, evidence suggests that preliminary examinations by the ICC prosecutor have promoted accountability in some countries, including Colombia. See Urueña, Rene, Prosecutorial Politics: The ICC's Influence in Colombian Peace Processes, 2003–2017 , 111 AJIL 104 (2017)CrossRefGoogle Scholar. However, in our model it is investigations rather than preliminary examinations that are likely to trigger that “willingness game” dynamic.

37 In cases when the prosecutor is acting on her proprio motu powers, the Pre-Trial Chamber has to approve the prosecutor's decision to proceed with an investigation.

38 Jo & Simmons, supra note 27, at 446.

39 Johnston, Alistair Iain, Treating International Institutions as Social Environments , 45 Int’l Stud. Q. 487 (2001)CrossRefGoogle Scholar.

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41 It is necessary to recognize that ruling coalitions face stronger incentives to play this two-level game when the ICC is targeting incumbent state officials. However, even in situations when the Court has indicted only rebel leaders, human rights organizations have been quick to demand the ICC prosecutor to not overlook alleged crimes committed by armed forces in their fight against the indicted rebels (e.g., the case of Uganda). Moreover, the limitations to personal jurisdiction contained in the Rome Statue are not concerned with which side of a conflict an individual belongs to. Therefore, we do not expect our theory to be conditional on which individuals are indicted—state officials, rebel leaders, or former rulers. For Uganda and demands to try the state military, see Mark Kersten, Justice in Conflict: The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace 170–80 (2016).

42 Democratic Republic of Congo, Uganda, Central African Republic, and Mali have self-referred situations to the ICC. Cote d'Ivoire's referral was de facto a self-referral as well. However, it did not invoke Article 13(a), which entitles a state party to bring a situation before the prosecutor. Because Cote d'Ivoire was not a state party at the time, President Ouattara invoked Articles 13(c) and 15 and invited the prosecutor to use proprio motu powers to bring the case. See OTP Weekly Briefing, Issue #87, at 11–16 (May 2011), available at https://www.icc-cpi.int/NR/rdonlyres/3836B9AF-B0DC-4F94-A4A8-4115E95AE76E/283329/OTPWeeklyBriefing_1116May201187.pdf.

43 Kersten, supra note 41, at 75–79.

44 Makau W. Mutua, Closing the “Impunity Gap” and the Role of State Support of the ICC, in Contemporary Issues Facing the International Criminal Court 104 (Richard H. Steinberg ed., 2016).

45 Letter available at https://www.icc-cpi.int/NR/rdonlyres/A245A47F-BFD1-45B6-891C-3BCB5B173F57/0/ReferralLetterMali130712.pdf.

46 For example, Chief Prosecutor Luis Moreno Ocampo publicly expressed interest in the DRC before Kabila made overtures toward international justice: http://legal.un.org/icc/asp/2ndsession/ocampo_statement_8sep(e).pdf. See Akhavan, Payam, The Lord's Resistance Army Case: Uganda's Submission of the First State Referral to the International Criminal Court , 99 AJIL 403 (2005)CrossRefGoogle Scholar.

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50 The official name is the Referendum (Political Systems) Act of 2000. See International Bar Association, Judicial Independence Undermined: A Report on Uganda 21 (2007).

51 Foundation for Human Rights Initiative, The Functioning of Multi-party Democracy in Uganda 122 (2013).

52 Akhavan, supra note 46.

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56 Parliamentarians for Global Action, PGA Welcomes the Enactment of the Implementing Legislation of the Rome Statute of the ICC by the Democratic Republic of the Congo (2016), available at http://www.pgaction.org/pdf/press-releases/2016-01-02-DRC-Implementing-Rome-Statute-Enacted.pdf.

57 Yvonne M. Dutton & Tessa Alleblas, Unpacking the Deterrent Effect of the International Criminal Court: Lessons from Kenya, St. Johns L. Rev. 37 (forthcoming 2017), available at http://ssrn.com/abstract=2757731.

58 Human Rights Watch, Ballots to Bullets: Organized Political Violence and Kenya's Crisis of Governance (2008).

59 Commission of Inquiry into the Post Election Violence (CIPEV) Final Report (2008), available at http://reliefweb.int/report/kenya/kenya-commission-inquiry-post-election-violence-cipev-final-report.

60 Okuta, Antonina, National Legislation for Prosecution of International Crimes in Kenya , 7 J. Int’l Crim. Just. 1063 (2009)CrossRefGoogle Scholar.

61 How Kenya Handled Local Tribunal Process, Daily Nation (Sept. 17, 2013), at http://www.nation.co.ke/news/politics/How-Kenya-handled-local-tribunal-process--/1064-1997172-p5vb2y/index.html.

62 Paul Seils, Handbook on Complementarity: An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes (2016), available at https://www.ictj.org/sites/default/files/ICTJ_Handbook_ICC_Complementarity_2016.pdf.

63 Author interview with anonymous subject 501, Nairobi, August 2016 (on file with authors). See also Dutton & Alleblas, supra note 57, at 42; Sosteness Francis Materu, The Post-election Violence in Kenya: Domestic and International Legal Responses (2014); Serena Sharma, The Responsibility to Protect and the International Criminal Court: Protection and Prosecution in Kenya (2015).

64 Constitution of Kenya, Arts. 22(2c), 258(2c), available at http://www.kenyalaw.org/lex/actview.xql?actid=Const2010.

65 ICC-OTP, Paper on Some Policy Issues Before the Office of the Prosecutor, at 7 (2013), available at https://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25-60aa962ed8b6/143594/030905_policy_paper.pdf. See also Schabas, supra note 30, at 101.

66 Nouwen, supra note 24.

67 See, e.g., Kenyans for Peace, Truth & Justice, Press Statement on the Implementation of the Waki Report (2008).

68 Muthoni Wanyeki, The International Criminal Court's Cases in Kenya: Origin and Impact 9 (2012).

69 Id. at 10.

70 Bjork & Goebertus, supra note 25, at 226.

71 See, e.g., Kenyans for Peace, Truth & Justice, Securing Justice, supra note 31.

72 Author interview with anonymous subjects 102, 301, and 401, Nairobi (on file with authors). See also Kenyans for Peace, Truth & Justice, A Guide to Public Interest Litigation in Kenya (2015).

73 The Foundation for Human Rights Initiative (FHRI) provides legal assistance in cases relating to a variety of matters, including criminal law and torture allegations. Annual reports do not break down its yearly data by type of complaint and we were not able to acquire this information by other means. Foundation for Human Rights Initiative, at http://www.fhri.or.ug/index.php/about-event/legal-services/legal-aid-assistance. FHRI numbers are provided simply as corroborating evidence of increased case filing after the onset of ICC investigation.

74 Foundation for Human Rights Initiative, Annual Report 2011 (2011), at http://www.fhri.or.ug/index.php/2015-07-22-14-08-32/annual-reports/25-annual-report-2011/file.

75 For “catalytic,” see Nouwen, supra note 24.

76 For atrocity crimes, see David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals 2 (2012).

77 See www.transitionaljusticedata.com for more information.

78 Not all prosecutions coded by the Transitional Justice Research Collaborative (TJRC) are included in this study. For example, if a state agent or rebel were charged for treason, that would not be counted as a human rights prosecution. To qualify, defendants must be state agents, and they must be charged with crimes amounting to human rights violations.

79 From a statistical standpoint, this overlap does not cause a problem. In fact, it allows us to differentiate the effects of preliminary examinations and investigations in years of their sole occurrence versus years in which they both take place. Data on examinations and investigations are available at https://www.icc-cpi.int/pages/preliminary-examinations.aspx.

80 State Department Human Rights Reports register a number of rights-based prosecutorial events under way in Mali, including those against gendarmes and soldiers charged with disappearance and rape—though these cases are still early in their development. See, e.g., U.S. Dep't of State, 2015 Country Reports on Human Rights Practices – Mali, at 3 (Apr. 13, 2016).

81 The facts of this case are still unfolding, but if some of these officials, including Abdullah al-Senussi, are put to death, this trial will be removed from the TJRC data because it will no longer qualify as a valid human rights prosecution.

82 Arguably, the sample should begin in 1999, the first year in which ratification of the Rome Statute might have exerted an effect on domestic jurisdictions. However, because the move toward domestic prosecutions for human rights violations preceded 1999, it would bias the results to not include years prior to 1999 in the sample. Importantly, the models are not sensitive to these choices; analyses run on a sample that is left-censored in 1999 show the same effects presented in this section (see Models 5 and 6 in Section IV).

83 There is a potential that studying only Africa creates bias. However, very little changes when these models are run on a global sample (these global models are available with the authors).

84 Civil war period is defined using the Peace Research Institute Oslo's Onset of Intrastate Armed Conflict, 1946–2014 Dataset. See Gleditsch, Nils Petter, Wallensteen, Peter, Eriksson, Mikael, Sollenberg, Margareta & Strand, Håvard, Armed Conflict 1946–2001: A New Dataset , 39 J. Peace Res. 615 (2002)CrossRefGoogle Scholar; Themnér, Lotta & Wallensteen, Peter, Armed Conflict, 1946–2013 , 51 J. Peace Res. 541 (2014)CrossRefGoogle Scholar.

85 Wood, Reed M. & Gibney, Mark, The Political Terror Scale (PTS): A Re-introduction and a Comparison to CIRI , 32 Hum. Rts. Q. 367 (2010)CrossRefGoogle Scholar.

86 This simply means that the conditional variance is larger than the conditional mean.

87 Because the negative binomial is a non-linear, conditional maximum likelihood model, fixed-effects techniques are not as reliable as they are with linear regressions; therefore, fixed-effects negative binomials should be approached with caution. See Paul Allison, Beware of Software for Fixed Effects Negative Binomial Regression, Statistical Horizons (June 8, 2012), at http://statisticalhorizons.com/fe-nbreg.

88 Simmons, supra note 14; Dancy & Sikkink, supra note 17.

89 Mark Drumbl, Policy Through Complementarity: The Atrocity Trial as Justice, in The International Criminal Court and Complementarity 216 (Carsten Stahn & Mohamed M. El Zeidy eds., 2011).

90 Sikkink, supra note 9.

91 To avoid endogeneity, we subtract the number of prosecutions in any given country-year from the number of all other prosecutions within the African continent (Country At + Country Bt … − Country Xt ).

92 Davenport, Christian, State Repression and Political Order , 10 Ann. Rev. Pol. Sci. 1 (2007)Google Scholar.

93 Wood & Gibney, supra note 85; Themnér, Lotta & Wallensteen, Peter, Armed Conflict, 1946–2011 , 49 J. Peace Res. (2012)CrossRefGoogle Scholar.

94 Data available at http://databank.worldbank.org/data/home.aspx.

95 Derived from Polity IV. See Monty G. Marshall, Keith Jaggers & Ted Robert Gurr, Polity IV Project: Political Regime Characteristics and Transitions, 1800–2010: Data User's Guide (Center for Systemic Peace ed., 2013).

96 Linzer, Drew A. & Staton, Jeffrey K., A Global Measure of Judicial Independence, 1948–2012 , 3 J. L. & Courts 223 (2015)CrossRefGoogle Scholar.

97 These data are available from The Yearbook of International Organizations, at http://www.uia.org/ybio. For other articles that use this measure to capture the presence of human rights organizations, see Hafner-Burton & Tsutsui, supra note 15.

98 Clark, supra note 21, at 40.

99 These data are available at http://stats.oecd.org/qwids.

100 Kim, Hun Joon, Structural Determinants of Human Rights Prosecutions after Democratic Transition , 49 J. Peace Res. 305 (2012)CrossRefGoogle Scholar.

101 The results are not dependent on the choice of count models. In Appendix Table 3, we replicate all of the models using basic OLS regressions. The findings regard ICC-INV change very little, except that the OLS regressions likely overestimate the coefficients because they assume the data re normally distributed.

102 One concern with this model is that ICC-INV may only achieve significance when ICC-PE is included in the model, given that the two processes are related. To test for this possibility, we re-ran Models 1–4 excluding the ICC-PE variable. The results are presented in Appendix Table 4. ICC-INV is still quite robust in all models.

103 For a description of different levels of the Political Terror Scale, see http://www.politicalterrorscale.org/Data/Documentation-SVS.html.

104 Clark, supra note 21.

105 We use an estimation technique called Firth Logit, which can account for the fact that the onset of a preliminary examination or investigation is quite rare among the full sample of observations.

106 These data are available from Uppsala Conflict Data Program/Peace Research Institute Oslo's (UCDP/PRIO) “One-side violence” data set. Eck, Kristine & Hultman, Lisa, One-Sided Violence Against Civilians in War: Insights from New Fatality Data , 44 J. Peace Res. 233 (2007)CrossRefGoogle Scholar.

107 For coarsened exact matching, see Ho, Daniel E., Imai, Kosuke, King, Gary & Stuart, Elizabeth A., Matching as Nonparametric Preprocessing for Reducing Model Dependence in Parametric Causal Inference , 15 Pol. Analysis 199 (2007)CrossRefGoogle Scholar.

108 For inverse probability weights, see Blackwell, Matthew, A Framework for Dynamic Causal Inference in Political Science , 57 Am. J. Pol. Sci. 504 (2013)CrossRefGoogle Scholar.

109 FHRI, supra note 74.

110 Office of the Prosecutor of the ICC, Preliminary Examinations, at https://www.icc-cpi.int/pages/preliminary-examinations.aspx.

111 Kenyans for Peace, Truth and Justice, Kenya's 7-Step Formula for Impunity Kenya's 7-Step Formula for Impunity, at http://kptj.africog.org/kenyas-7-step-formula-for-impunity.

112 See, e.g., Kip Hale, ICC on Trial, Foreign Affairs (Dec. 11, 2014), at https://www.foreignaffairs.com/articles/kenya/2014-12-11/icc-trial.

113 Nouwen, supra note 24.

114 Tom Burgis, The Looting Machine: Warlords, Oligarchs, Corporations, Smugglers, and the Theft of Africa's Wealth (2015).