On a steamy day in late January Dr Sarah Nouwen tapped gently on the door of a government minister in central Kampala, capital of Uganda, and walked unannounced into his office. The minister looked up from his papers and smiled. “Ah Sarah,” he said. “You’ve come back.”
Nouwen had first sat in the same office in 2008 when she was researching a book that looks at the relationship between domestic and international criminal processes in Uganda and Sudan. After only three brief encounters over six years, she was astonished that the minister both recognised her and remembered why she had come to interview him. “He continued: ‘Sarah, you're the one working on the International Criminal Court’. And as I handed him a copy of my book I felt a hugely satisfactory sense of completing a circle. It was to become a familiar feeling in the following ten days,” she says.
When Nouwen embarked on the research that led to the publication of Complementarity in the Line of Fire (Cambridge University Press, 2013) she was nervously aware that she was undertaking a formidable – and often frustratingly difficult – task that in order to succeed would rely on the goodwill and trust of hundreds of people, varying from government ministers to displaced persons, from military intelligence officers to human rights activists. Her sense of trepidation was well-founded: she covered more than 100,000 miles to reach the many people she needed to talk to.
With the subtitle The Catalysing Effect of the International Criminal Court in Uganda and Sudan, the book is aimed at everyone with an interest in international criminal justice – and will, hopes Nouwen, provide a line-of-fire perspective to what has remained a predominantly theoretical discourse, based on great expectations, but backed up by little empirical evidence.
“In order to assess whether the International Criminal Court had indeed had this great impact on domestic justice systems that many scholars had expected, I needed to interview a wide range of people and ask them about the drivers of change. Given the sensitivity of the International Criminal Court in some situations, I could not mention the subject matter of my research at all. It was like researching football, without ever mentioning the word football,” she says.
Nouwen’s research depended on the generosity of more than 500 individuals in giving her their time, insights and experiences. However, from the outset she was concerned about a very apparent gap in reciprocity. She told herself that once the book was published she would personally deliver copies to as many as possible of the people who had helped her as a way of showing her appreciation and sharing her findings.
“The post-conflict environment of Uganda has proved to be a magnet for researchers from the West. Against a backdrop of the rapacity of colonialism, there is an understandable feeling that some of these visitors are exploiting information – the last possession of some interviewees. Researchers arrive, they carry out their research, and then they disappear. Although a copy of the book will do little to improve the lives of those in difficult circumstances, it is the least that I could and should give back,” she says.
In January, Nouwen flew to Uganda where the Refugee Law Project had set up a series of book launches in the capital as well as in Gulu and Kitgum in northern Uganda, for a long time the epicentre of the conflict involving the Lord’s Resistance Army and the Ugandan government that is subject to the International Criminal Court’s investigations. She took with her 100 copies of her book to place in the hands of the people who had contributed their experiences and insights to the detailed picture it paints of the role of the ICC in Uganda.
“All the people whom I had interviewed, media, NGOs, community leaders and interested members of the public were invited to the launches – and at each one I gave a brief presentation of the findings most relevant to Uganda. It was a very rewarding experience. Firstly, it was great fun to see people again with whom I had such intense dialogues over the years. Secondly, it gave me an opportunity to account for my choices in research methods and analysis of the material people had provided me with. And finally, possibly most importantly, the debates at the launches spurred new insights, new questions and new initiatives, for many of those present. Hopefully, in this way, the book will have its own ‘catalysing effect’.”
Lyandro Komakech, Senior Research and Advocacy Officer of the Refugee Law Project, enthusiastically helped Nouwen in returning her book to its Ugandan sources. “From now on, we will tell all researchers that they have to follow this precedent,” he said.
The International Criminal Court (ICC), established in 2002 by means of the Rome Statute, is a permanent international tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes. It is best known to the general public for its prosecution of Congolese warlord Thomas Lubanga and Kenyan President Uhuru Kenyatta – but its relationship with the domestic criminal systems of its signatories is often overlooked and misunderstood. A defining feature of the ICC is the principle of complementarity: the Court is meant to function as a back-stop court, exercise its jurisdiction only when national courts are not genuinely investigating or prosecuting such crimes.
Scholars and practitioners alike believed that this feature of the ICC would encourage states to conduct more criminal proceedings domestically. It is specifically this great expectation of a catalysing effect of the principle of complementarity that Nouwen set out to test in Uganda (a state party to the Rome Statute) and Sudan (a signatory which later revoked its signature).
Today Nouwen is a lecturer in international law in the Law Faculty at the University of Cambridge but before she embarked upon a PhD she was a consultant for the Dutch Ministry of Foreign Affairs. Her background was in both law and international relations.
“My decision to examine the question of complementarity goes back to a conversation I had in my capacity as diplomat with a Sudanese official in the Ministry of Justice. It was 2005, just after the situation in Darfur had been referred to the ICC, and he asked me to help organising some training in international criminal law and specifically the principle of complementarity,” she remembers. “His questions led directly to my decision to examine for my PhD how the principle of complementarity plays out in practice in two countries where international crimes have been committed.”
The journey that followed was one filled with obstacles, ranging from practical issues such as endless waiting for travel permits, visas and appointments, to existential questions about security, research ethics, privilege and complicity. In a recent article in the Leiden Journal of International Law on the ‘story behind the story’, Nouwen argues that many of these challenges are findings in themselves. She writes: “The challenges in the research provided insights into the role of law in a society, the limitations of vocabularies, the overexposure of international criminal law and inequalities in global knowledge production.”
The resulting book reveals that complementarity has catalysed all kinds of effects in Uganda and Sudan. “Crimes within the ICC’s jurisdiction were incorporated into domestic law, even in Sudan, a state not party to the Rome Statute. Domestic courts specialising in international crimes proliferated,” says Nouwen.
“Some less predicted effects emerged too. Adultery – where committed ‘within the framework of a methodical and widespread attack’ – was included in the list of crimes against humanity. Mini-ICCs mimicked the ICC not just in subject-matter jurisdiction but also in terms of budget, discourse and audience. ‘Traditional’ practices were rediscovered, reframed and rebranded. In peace negotiations, rebel movements demanded accountability instead of amnesty. The transitional-justice economy boomed.”
Nouwen reveals that many of these effects have been spurred by a misrepresentation of the meaning of complementarity. “Complementarity has lived a double life. In legal proceedings, it merely is a technical rule determining the admissibility of cases before the ICC. But scholars, activists and even ICC officials have imbued it with meanings far beyond the legal rule. NGOs, for instance, have explained complementarity as requiring all kinds of things that have little to do with complementarity as an admissibility criterion” she says.
“The ICC itself has contributed to norm confusion by using the term in its literal rather than legal meaning, when explaining complementarity as requiring a ‘division of labour’ rule, whereby the international court handles the most serious cases and domestic court only the less serious cases. Whereas such a division-of-labour is common in the relationship between international and domestic courts, it has nothing to do with complementarity, which is a rule of priority in case of competing claims to jurisdiction in the same case.”
Nouwen argues that there is a fundamental paradox at the heart of the Rome Statute: it refers to a state’s duty to exercise criminal jurisdiction over international crimes while at the same time establishing a court on the assumption that states fail to investigate and prosecute. “Complementarity stresses the responsibility of states to investigate and prosecute. However, in its implementation to date the Rome Statute has projected the ICC as an institution to take over from states the responsibility to investigate and prosecute conflict related crimes, thus eroding the pressure on states to fulfil that responsibility.”
Ugandan and British lawyer Barney 
Afako, who wrote the preface to the book, describes Nouwen’s story as an “intimate and respectful `fly on the wall’ account”. Nouwen realises that this fly-on-the-wall account will not delight everyone: “Some of the people to whom I presented the book, and were so pleased to receive it, may not be so happy once they have read it as it critically discusses the moves of all actors involved, whether the ICC, government officials or NGOs. But then again, that critical perspective is the scholar’s most persuasive business card.”
Complementarity in the Line of Fire by Sarah M H Nouwen is published by Cambridge University Press.
For more information about this story contact Alexandra Buxton, Office of Communications, University of Cambridge amb206@admin.cam.ac.uk tel 01223 761673
Inset images: logistics officer Fred Ssekand and Lyandro Komakech, both Refugee Law Project; Sarah Nouwen delivering copies of her book; booklaunch at Refugee Law Project in Gulu with Okello Douglas Peter, district speaker.
As a researcher in Uganda and Sudan, law specialist Dr Sarah Nouwen became increasingly aware of the ‘one-way’ nature of her fieldwork. She vowed that she would return with the book that depended on the generosity of so many people. In January she did just that.
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