Complementarity. It’s a mouthful, no question. But when you spend time with the international law set, the concept comes up over and over. If you listen carefully, you might gather that the idea is at the forefront of efforts to make justice available and responsive to people around the world.
But the question remains: What, exactly, is complementarity?
For a proper introduction, we turn to James A. Goldston, executive director of the Open Society Justice Initiative.
Complementarity is a new concept for many people. How would you define it?
At its most basic level, complementarity is really just the role of domestic courts in holding accountable perpetrators of the most serious crimes—war crimes, crimes against humanity and genocide.
The concept—using that language, “complementarity”—comes from the Rome Statute, the 1998 treaty that created the International Criminal Court, or ICC. In that sense, the concept is built into the very framework of the court.
Complementarity is the statute’s way of talking about the International Criminal Court’s relationship with national or domestic courts. The statute provides that the ICC act in a manner that is complementary to national courts. The thinking is, in the broad effort to ensure accountability for serious crimes, both the ICC and domestic courts have a role to play. Because the ICC is able to try only a few cases at a time, the vast majority of perpetrators of such crimes must be tried in national systems.
How is the division of labor understood?
According to the Rome Statute, the ICC can only act when a domestic court is unable or unwilling to do so. For example, after a war, when institutions break down or when conflict literally wipes out the people—the lawyers and judges—who would be the ones to work on bringing legal charges against perpetrators. The ICC can also act when a domestic court is unwilling to. For instance, when political leaders show no inclination to go after high-level suspects. These are the cases the ICC is expected to take on.
We rely on national courts to try all other cases, including of the most serious crimes.
Serious crimes like rape and murder and kidnapping that take place in the context of armed conflict or in the context of widespread and systematic abuses, like crimes against humanity.
The problem is in too many places around the world, courts lack the capacity and governments lack the will to take on these crimes and we are left with an impunity gap—crimes without justice.
Complementarity is about building the structures that can fill that gap. It’s the effort to create domestic accountability for international or serious crimes.
So, complementarity is about expanding the reach of justice.
Complementarity is, in part, a new way of addressing a very old problem. The course of human history has largely been a history of impunity. And we have only recently been taking very small but important steps to address the issue.
Why is addressing impunity important?
Because continued impunity undermines the rule of law. It prevents stability. It prevents democracy. It prevents societies from developing in an orderly way. And it has terrible human consequences.
Impunity has an enormously debilitating impact on victims. For people who have suffered sexual violence or whose family members have been killed, impunity is a continuing violation of these people’s rights to closure, to know the truth about what happened, and to ensure that the perpetrators of these crimes are punished.
I recall when I was working in Bosnia, in 1996, the year after the Dayton agreement was signed, and a number of alleged war criminals were still on the loose. It was widely known that they had not been arrested. And it was very palpable, the fear that this instilled—their continued presence on the streets instilled fear in ordinary people. And one could sense that. One could feel that in everyday conversations. It was enormously important when, a couple of years later, NATO troops were used to arrest war criminals indicted by the International Criminal Tribunal for Yugoslavia. That