Back to the Future?: Civil Society, the ‘Turn to Complementarity’ in Africa and Some Critical Concerns
Authors Christopher Gevers
Affiliations: Lecturer, School of Law, University of KwaZulu-Natal
Source: Acta Juridica, 2016, p. 95 – 126
This paper critically considers the recent ‘turn to complementarity’in international criminal law: denoting an apparent shift towards the prosecution of international crimes at a domestic level. After placing this ‘turn’ within ongoing debates about the role of domestic trials in the history of international criminal law, the paper proceeds to consider four inter related reasons why the turn should be welcomed by supporters of the international criminal justice project. These are: (i) it reflects the ‘better’ interpretation of the Rome Statute; (ii) it might save the International Criminal Court (ICC) from itself, or at least international criminal law from the ICC; (iii) domestic trials arguably enjoy certain advantages over international trials generally; and (iv) it presents an opportunity to operationalise the nascent African regional framework for the domestic prosecution of international crimes. On this basis, the paper discusses how civil society organisations can support the domestic prosecution of international crimes under this regional framework (including by clarifying the operation of universal jurisdiction and the position of African states on immunity). The final part of the paper raises two critical concerns regarding the turn to complementarity, and the role of civil society organisations therein, namely: (i) that it risks lapsing or relapsing into colonial practices of ‘othering’ by focusing solely on ‘African complementarity’ or lapsing idiomatically into the language of ‘savages’; or (ii) it risks repeating the colonial double standard — based on an idealised Europe — in respect of the application of international criminal law generally, or complementarity in particular.