Conceptual distinctions between the ICJ project and its constituent processes: A Reply to Brad Roth and Ken Anderson

 Amrita Kapur is a Consultant with the International Development Law Organization, and recently appointed as the International Advisor to the Women’s Justice Unit of the Judicial System Monitoring Programme in Dili, East Timor.  She has previously worked at the International Center for Transitional Justice, the International Criminal Court, and as a domestic prosecutor and Legal Aid criminal defence lawyer. In this post she responds to the article by Ken Anderson “The Rise of International Criminal Law: Intended and Unintended Consequences” and a recent post by Brad Roth

Professors Anderson and Roth accurately characterize the disparity between international criminal law (ICL) rhetoric and the continuing tolerance of impunity as hypocrisy with the worst kind of consequences.  However, their predictive speculations overlook important distinctions between ICL and humanitarian intervention, including historical context and the underlying catalysts for their continuing evolution. Roth’s response highlights the confluence of the two, but ultimately seeks to conflate their objectives and neglects emerging trends: in so doing, he fails to address the inherent shortcomings of the international criminal process as a tool to further the international criminal justice (ICJ) project.  This reply addresses humanitarian intervention and ICL as constituents of the ICJ project, referring to both Roth and Anderson for conceptual completeness.

1.  Nurturing a culture of humanitarian intervention

The central position occupied by ICL in the international legal order is claimed to give rise to two extreme situations: the guarantee that genocide will occur without intervention (Anderson) and/or the unchecked illegal use of force by powerful states (Roth).  As briefly addressed in my previous reply to Anderson (at 1031), framing ICL as a policy alternative that reduces the pressure to intervene presupposes intervention is an established and otherwise “morally inevitable” practice: this is simply not the case.

Humanitarian intervention is a very recent politically and militarily significant extension to the principles espoused by ICL.  Rather than being opposing or counter-balancing trends, humanitarian intervention and international criminal accountability are concurrently developing: while they are not entirely independent of one another, they are at different stages of ‘maturation’ and given the contrasting commitment in resources and political capital, inevitably developing at different paces.  Numerous humanitarian crises have elicited a peacekeeping force from the Security Council (Sierra Leone, East Timor, Bangladesh, Cambodia and the DRC are just a few), but always with mandates falling short of ensuring the protection of human rights and cessation of international crimes.  A fair evaluation of the trend towards humanitarian intervention must be anchored in an appreciation of the previously impermeable norm of non-intervention. 

Ultimately, the impediments to humanitarian intervention pre-date ICL and are likely to persist; there are forces moving in the opposite direction which have yet to overcome the hypocrisy of the international legal order.  For example, civil society has traditionally driven the introduction and increasing consistency in compliance of more humane standards in conflict; the Mine Ban Treaty and the recent Convention on Cluster Munitions, culminating from the efforts of the Cluster Munitions Coalition, are examples of NGO-driven state acquiescence to improved humanitarian standards in international law.  Acknowledging the fundamental differences in the commitment of resources required by initiating intervention as opposed to merely restricting methods of warfare, this nevertheless suggests that a culture of humanitarian intervention may develop only as a resignation to the political impossibility of ‘neutral handwringing’.

Indeed, the sequence of events relating to the Balkan conflict contradicts the asserted trend away from intervention; it also instigated the first international dialogue on creating a norm of responsibility to protect (R2P).  Notwithstanding internal NATO perceptions of the ‘ICTY as a way of avoiding military intervention,’ (Anderson at 334) the very same European and US administrations executed an unprecedented ‘illegal but legitimate’ intervention on humanitarian grounds five years after the ICTY was established: a collective by-passing of Security Council authorization for intervention to save lives.  Granted, there are a range of other political, military and economic reasons for reluctant interveners to act in the name of humanity.  The fact remains, however, that the Kosovo intervention was the first of its kind – a multi-lateral intervention without Security Council authorization on predominantly altruistic humanitarian grounds.

Criticisms are fairly leveled at NATO’s methods of attack and the consequent humanitarian crisis characterized by refugee flows, civilian ‘collateral damage’, and the failure to take effective precautionary measures to avoid mistakenly targeting civilians.  In fact, the process and conclusions of the ICTY Prosecutor’s unorthodox investigation into whether NATO’s breaches of IHL warranted a prosecutorial investigation can be invoked to question the moral clarity achieved when the military victory is politically implicated in retrospective judgments of culpability.  Leaving jus in bello aside however, the use of force itself was qualified as legitimate by jurists and practitioners alike, despite its blatant illegality.

Roth’s parallel concern that powerful states will be furnished with (and rely upon) a rationale to violate use-of-force norms sits awkwardly with the trend away from unilateral action (the Georgian invasion being a recent exception) in the last century.  The ad hoc creation of a “Coalition of the Willing” to invade Iraq was also unprecedented, in its purpose-driven formation and its liberal use of multiple (and somewhat precarious) justifications for the use of force.  What is particularly noteworthy is that the US was not prepared to ‘disparage and flout’ the Security Council processes on its own.

A huge amount of political and economic effort was expended to produce a substantial counter-consensus; the international humanitarian and political fallout from Iraq similarly has consequences not just for the US alone, but also the prospects of forming other coalitions for similar purposes.   These events undoubtedly highlight the potential for exceptions to be used as precedents for further, less justifiable, violations of the prohibition against the use of force. However, rather than catalyzing powerful states to blatantly disregard norms solitarily in the absence of SC authorization or an alternative ‘critical mass’ consensus, perhaps the likelihood of a joint enterprise outside established norms has diminished in the unsettled dust of Operation Iraqi Freedom.  Presumably, this will reduce the instances of ‘false positives’ because consensus to act will be more difficult to achieve.  Admittedly, its immediate effect could be to increase ‘false negative’ scenarios, whereby states otherwise inclined to intervene on humanitarian grounds are reluctant to incur the associated political risks, until the dust has truly settled.

This brings us to Sudan: the current manifestation of the dilemma ‘between the lack of will to intervene and tribunal justice’ (Anderson at 335).  Again, this dichotomy presumes that the ICC’s existence reduces the pressure to intervene that would otherwise exist; this is inconsistent with the historical development of international law.  From a complete lack of expectation, let alone pressure, to intervene, the international community is only now beginning to consider its moral ‘responsibility to protect’: how much can we realistically expect this early in the reconceptualization process?  The age-old politics of self-interest proved too strong for the nascent sense of international responsibility to galvanize an effective response to Sudan.  However, they did not completely win out: otherwise China would have vetoed the Security Council referral to the ICC.  Whether or not this suggests a trend away from self-interested veto exercises in extreme humanitarian crises (and the associated costs), is yet another possibility to consider.

2. The international criminal justice project and its challenges

My response to the claim that the court’s failure to redress the enormity of the crimes mocks justice is two-fold.  First, that the very characteristics of the criminal justice process render it an inadequate tool to achieve broader ends, and therefore I wholeheartedly agree with Anderson and Roth that ICL’s central and preeminent role is dangerous; and second, that the ‘justice’ Anderson and Roth refer to must surely include, if not focus on, justice for the wronged parties, the victims, and the society that must build peace and reconciliation.

Criminal trials must be recognized as an inherently limited legal tool through which there is a ‘collision of various narratives and the inevitable distortion of the political context through the legal process’. (Martti Koskenniemi, ‘Between Impunity and Show Trials’, 6 Max Planck Y.B. U.N. L. (2002) 13)  Koskenniemi notes:

[T]he meaning of historical events often exceeds the intentions or actions of particular individual and can be grasped only by attention to structural causes, such as economic or functional necessities, or a broad institutional logic through which actions by individuals create social effects .(14)

Criminal prosecutions may also exonerate larger structures which create the social normality from which a criminal society emerges from responsibility. (Koskenniemi, 15)  The reasons for this conclusion are multiple, including: the universe of evidence available to the parties that provides a more complete picture of the ‘enormity of the crimes’ is not necessarily reflected in evidence presented in court, for reasons relating to admissibility of evidence (relevance), the reluctance of witnesses, the choice of charges, and the choice of narratives inevitably made by the prosecution.  Criticisms leveled at the conduct in cases such as Celebici (selective prosecution), Akayesu (initial failure to include charges of sexual violence), and Lubanga (availability of exculpatory evidence) reinforce the conclusion that trials are inherently flawed as a process to achieve the noble purposes ascribed to the ICJ project.

Second, my critique of Anderson’s vision of victor’s justice is also predicated on a distinction between justice as an outcome and justice as a process, and the reliance of the outcome’s integrity on the integrity – achieved through neutrality – of the process.  The same logic applies to Roth’s conflation of the ICJ project with international criminal prosecutions: to maintain conceptual clarity, the distinctions in objectives and operation modalities between the two must be retained.  The purposes identified by Payam Akhavan, including (but not limited to) post-conflict reconciliation, peace-building and prevention of future atrocities, are consequent upon the attribution of responsibility: that is, the criminal justice process is a tool, culminating in convictions or acquittals, through which broader purposes may be served.

ICL’s core position is worthy of concern, because the need for redress will not be properly met in the courtroom, even if the enemy is vanquished.  There is a moral imperative to invest in additional mechanisms – beyond humanitarian intervention – to ensure the enormity of these crimes is better recognized and redressed.  To ensure justice is not mocked, we must question what ‘justice’ means, and who it is for in the context of the grander ICJ purposes.  As I mention briefly in my reply to Anderson (at 1040), a range and combination of other mechanisms that better recognize (eg. truth commissions, through a more accurate historical record, memorialization) and redress (eg. victim reparations, lustration) the harm suffered by individual victims and society, expose the systemic nature of the commission of crimes, facilitate reconciliation and lower the possibility atrocities will occur in the future.

Roth also raises the risk of wholesale self-righteous condemnation in extra-territorial prosecutions.  As a preliminary response, it is possible that the ICC’s creation, operation and complementarity regime has precipitated, or will precipitate, a decline in the exercise of universal jurisdiction.  Also, the likelihood of ‘partisan festivals’ is lowered by a greater commitment to neutrality, as expressed through procedural fairness.  Roth’s apprehension of the risk of manipulative extraterritorial prosecutions is correct, but the risk is low given their unlikelihood, unpredictability, and limited effectiveness.  Moreover, as a speculative threat it is significantly less concerning than the painfully proven consequences of foregoing criminal accountability altogether.