Feeling a Way Forward for International Justice – ICC, Africa and the World

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As we all know, 2016 has seen, on many fronts, a surge of isolationism and nativism, as well as a tendency toward polarization and “post-factual” rhetoric. Against this global backdrop, there were reasons to expect dramatic confrontations at the ongoing session of the International Criminal Court’s (ICC) Assembly of States Parties (ASP). In recent years, discontent with the ICC has been growing, particularly among African states, culminating in three prominent withdrawals (on which see my previous post). If badly handled, the situation could lead to further withdrawals and setbacks for international criminal law.

The ASP has instead offered a promising glimmer of light in the gloom of 2016. On Friday 18 November the ASP held an “open bureau meeting” on the ICC-Africa relationship. The maturity of the discussion renewed my hope in the possibility of respectful listening, open-mindedness, sincere engagement and meaningful change.

Rather than drawing battle lines, delegations from all latitudes generally reached out in a very open and reflective manner. The sensationalist, oversimplified criticisms that are common in media and even academic commentary made little appearance. Instead, delegations generally advanced grounded, focused concerns and possible solutions.

For a great many states, the current impasse was a wakeup call. Instead of reacting to all concerns as attempts to undermine the Statute and the rule of law, delegations showed a sincere readiness for real conversations about the future of international justice. International justice must be inclusive justice. African states helped shape the Rome Statute system and will continue to do so. International justice must also be living and organic, adapting to experience. As the Ugandan delegate explained, a legislature can revise a rule based on experience and changed conditions, which is not necessarily to disrespect the original rule.

The discussion was at times moving. Some delegates at the podium shared heartfelt thoughts, their feelings of connectedness to other states parties, and even the personal tragedies that led them to support international criminal justice.

The three withdrawing states explained their experiences and objections. A few other African states (including Kenya and Namibia) indicated that they were considering withdrawal, and carefully articulated their concerns as well as a readiness to engage in discussion. Most of the African delegations affirmed their continuing support for the ICC and the desire to continue to improve the system.

A widely shared outlook was (1) the core principles and purpose of the Statute should not be undermined, but that (2) where accountability abuts other important values (peace, governance, pluralism), we can discuss how best to reconcile those values. In my view, that outlook is sound and it underlies the Rome Statute. In the original negotiations, many hardliners objected to each of the ‘compromises’ with other important values. But international criminal law must operate in the world alongside other incommensurable values. Some recalibrations, based on African experiences, could make the ICC better not just for Africa but for the world.

Among the suggestions advanced by delegations were:

  • Clarify the interplay of Art 27 and 98 (immunity).
  • Clarify the structure of the consultation mechanism (Article 97).
  • Create some mechanism to allow meetings with persons subject to arrest warrant.
  • Clarify that the principle of complementarity includes regional courts conducting genuine proceedings.
  • Adopt measures to better engage states without permanent representation in The Hague.
  • The ICC and states parties need to better explain the Court’s jurisdictional limits.
  • The Office of the Prosecutor (OTP) should give greater weight to potential adverse consequences of its actions, and the timing thereof.
  • The OTP should try to improve engagement with governments during preliminary examination.
  • The ICC should shed more light on business interests and arms suppliers that fuel conflicts.
  • The ICC and states parties should do more to support national prosecutions, including by galvanizing donors to assist capacity building in willing states.

Delegates often touched on the familiar debate about whether the current situation selection reflects anti-African bias, or whether it reflects jurisdiction, gravity, and the absence of national proceedings. Perhaps headway can be made on that intractable debate, by at least agreeing that geographic distribution is a proper consideration under the “interests of justice” (Article 53(1)(c)). Current OTP policy disavows geographic distribution as a factor and prioritizes situations by gravity, but it would be possible to imagine and adopt a different understanding of Article 53.

Some strong concerns were raised which are not easily addressed by the ICC nor by the ASP. These concerns are:

  • Some powerful states are not states parties.
  • Security Council members can refer situations even though they are not parties.
  • Security Council should not refer situations without providing effective support.

Partial, but imperfect, responses include: to continue to press for universal ratification and to continue to press for UNSC reform, for example including instilling restraint on the use of vetos. Obviously both of those will be difficult, long-term projects. But these are things that states parties and others can discuss and press for in earnest. (Personally, I don’t think abandoning international criminal law because some powerful states have not joined is the solution. Such an approach strikes me as inadvertently hegemonic, in that it grants a veto to great powers. Surely a subset of the states of the world can agree to disavow terrible crimes and commit to punish such crimes occurring on their territories, without being held back by non-participating states. Otherwise we are all dragged down to the lowest common denominator.) Obviously, however, these are very complicated issues and there might be other answers as well.

Some delegates found the discussion of limited value, in that no concrete proposals were adopted. However, I thought that the discussion was groundbreaking, simply because of its maturity, respect and open-mindedness. The commitment to dialogue and soul-searching was clear. 2016 had given so much reason to despair about respect, listening, and fact-based dialogue, so the constructive response on all sides was a welcome surprise about what humans can do. The willingness to engage in earnest discussions about adjustments is an exciting opportunity for international justice.

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Barrie Sander says

November 22, 2016

Thank you for the great post Darryl - a very interesting and important discussion.

I particularly agree that "international criminal law must operate in the world alongside other incommensurable values", a notion already recognized in the field of ICL as far back as the work of Judith Shklar, who famously stated:

"To show that justice has its practical and ideological limits is not to slight it. [...] The entire aim is rather to account for the difficulties which the morality of justice faces in a morally pluralistic world and to help it recognize its real place in it - not above the political world but in its very midst. [...] [J]ustice is a policy and [...] the judicial process is not the antithesis of politics, but just one form of political action among others"
(J.N. Shklar, Legalism: Law, Morals, and Political Trials (Harvard University Press, 1964), at 122-123 and 143)

I would also like to add a passage from Sarah Nouwen’s paper on Legal Equality, which I believe captures very well the nature of the discourse concerning the ICC. Specifically, Nouwen argues that participants in the field tend to prioritise either the value of accountability or the value of equality, the act of prioritisation itself being a political exercise:

“Those promoting international criminal justice often concede, with regret, that international criminal law is enforced unevenly. However, they stress that the glass is half full rather than half empty and that the glass is progressively filled: more and more individuals, hopefully one day irrespective of their nationality, will be subjected to international criminal law. This is the argument of those for whom anti-impunity is the primary value to be pursued. They are filling the anti-impunity glass.

For others, however, equality is the primary principle to be pursued. That is particularly so for those, states and individuals, who have suffered from a lack thereof. They focus on the ICC’s impact on equality. Their glass, that of equality, is half empty, if not emptier. Moreover, they see the unequal enforcement of international criminal law as risking emptying their glass completely: less impunity can mean more inequality. Rather than sharing the faith of anti-impunity activists that one day everyone will be accountable to the law, they challenge this evolutionary narrative for its lack of empirical grounding. In their view, the ICC’s anti-impunity work legitimises rather than challenges existing inequalities. Under the mantle of a ‘legal’ and ‘just’ anti-impunity fight, the ‘international community’ – ‘a post-Cold War nom de guerre for the Western powers’ – reconstitutes itself on an altar of superiority by punishing its enemies. And then, as Adam Branch observes, ‘the doctrine that some justice is better than no justice can end up not only making justice conform unapologetically to power, but also making justice an unaccountable tool of further violence and injustice.’

The evaluation of the changing status of the principle of equality in the field of international criminal law thus depends on which value, accountability or equality, one values most. That prioritisation of values is a political exercise. For those at the forefront of the fight against impunity, accountability trumps equality. Others judge inequality, among states and individuals, as a greater injustice. They are not willing to sacrifice the principle of equality on the stage of accountability.”

The full paper is accessible here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2239644

Kriangsak Kittichaisaree says

November 22, 2016

The main problem with the ICC is that it has not been successful in ensuring that ICL is evenly enforced. One may argue that African perpetrators of crimes under the ICC Statute have been the focus of prosecution before the ICC because the African States concerned are either unable or unwilling to prosecute these perpetrators, and that their crimes are of sufficient gravity to warrant ICC prosecution. However, this argument ignores the fact that such crimes of similar gravity may have been committed elsewhere, outside Africa, and the UNSC has not been able to refer the non-African situations concerned to the ICC Prosecutor pursuant to Art. 13(b) of the ICC Statute. It is sad that this ‘legal inequality’ has been used as an excuse by those deserving to be punished by the ICC to discredit the ICC and get away with impunity for their crimes.

There have been initiatives by several States to make more effective the surrender of fugitives to the ICC. It is praiseworthy in many ways. ICL justice must be done and seen to be done, provided that this “justice is blind” in the sense of being applied equally.

When the ILC started the project “Crimes against Humanity” 2 years ago, many States expressed concerns that the resulting convention on CaH would undermine the ICC’s mandate. On second thought, such a convention binding on States Parties thereto would obligate them to end impunity for any person of whatever race, nationality etc. who have committed CaH. But what of war crimes, genocide, or aggression?

Darryl Robinson says

November 22, 2016

Thank you both for these thoughtful comments. The Shklar quote on pluralistic values is very much in the spirit of my post. The thoughts from Sarah Nouwen are very insightful and illuminating (as always!) in identifying two values: equality and accountability. While I agree, I would also gently add some caveats to make sure we maintain all the nuance in mind.

First, we would not want to simplify the excellent point to suggest there are two camps, one for accountability and one for equality. There must be room in the debate for the many people who are committed to both.

Second, in assessing the extent of unequal application, we should stay carefully grounded and consider plausible alternative explanations to our own. In assessing the Court's selections, we have to consider jurisdiction limits, gravity and absence of proceedings. Many insouciant claims about ICL overlook that the continent with the most ICL defendants is Europe, by far. And that previously the 'inequality' complaint was the LACK of attention to victims in the global South. So, there is a lot of texture that we should not overlook as we strive to understand.

Third, what about serious crimes happening elsewhere, outside the Court's reach. It is understandable that many people feel that this is also "legal inequality", but that view also has subtle problems to be unpacked. If 'equality' is (mis)interpreted so that none of us can have ICL until even the powerful agree as well, then that is inadvertently hegemonic, because it gives them a veto. States parties can bind ourselves not to commit such crimes and to be scrutinized for our compliance. We can ratify treaties and take on commitments (Rights of the Child, ICC, etc etc) even if others don't. That's our sovereignty.

A common underlying sentiment seems to be that non-parties are getting some "benefit", of freedom to commit genocide with less scrutiny, while states parties carry a "burden" of not having that option, and that this differential burden is unfair. But the alternative view is that disavowing these crimes is not a burden. It is a BENEFIT, namely a benefit for people on our territory. And we are free to build for ourselves this benefit, to regulate our own territories, and to agree to the check and balance of external scrutiny for the protection of humans on our territory. It would be great if the conversation would take this into account as well: that maybe law is not just a burden but also a benefit.

I entirely agree with Kriangsak that creating a more equal playing field falls not only on the ICC but also on states.

What I found so promising in the ASP debate was the POSSIBILITY of listening and discourse and thinking on such big picture questions.

Barrie Sander says

November 22, 2016

Hi Darryl,

Thanks for responding to my comment. A few thoughts in response (apologies in advance for the length, I’ve been meaning to write a blog post on this but think it is useful to continue the conversation here):

(1) Whilst I agree that there are many people who are committed to both accountability and equality, I see Nouwen’s point as being that it is impossible not to PRIORITISE one value over the other at the present stage of the development of ICL. For instance, the arguments you put forward in your post are in favour of prioritising accountability over equality – at least in the short-term – with an aspiration that equality will be possible sometime in the future, and that, even if it is not, the value of unequal accountability should be prioritised over the value of equality. In short, I understand Nouwen’s point to be not about what people “are committed to” in the future, but what they prioritise in the present. And this prioritisation is itself a political act, deserving of scrutiny in both directions.

(2) I completely agree that we should carefully assess the different reasons behind the ICC’s selectivity. Some selectivity results from the internal exercise of prosecutorial/judicial discretion, but significant selectivity results from limits placed on the Court’s jurisdiction, the realities of State cooperation and restrictions on funding. Selectivity also results from the nature of ICL. This is important so as not to mis-attribute blame to the ICC as an institution for all aspects of its selectivity, as well as to correctly diagnose the problems/challenges faced by the Court and the field more generally.

(3) Whilst I agree that it is important to look beyond the ICC, I’m not sure pointing to the statistical fact that most ICL defendants have been in Europe adds that much texture. Surely, the fundamental point is not about geography per se, but geopolitical power and the neoliberal system underpinning it. As Gerry Simpson has observed, it remains the case that:

“to a visitor from Mars perusing the historical record as set out in international tribunals for the past 60 years, the impression given would be that, with the exception of Bosnian Muslims and Croats tried at the ICTY, war crimes, crimes against humanity and genocide are carried out only by those states (or rebel groups) opposed to the interests of the North Atlantic elite.”

(G. Simpson, ‘International criminal justice and the past’, in G. Boas et al., International Criminal Justice: Legitimacy and Coherence (Edward Elgar, 2012) 123, at 144)

In other words, ICL has a legitimation challenge focused not on geography per se, but on the international system within which it operates. Whether through jurisdictional limitations, State cooperation challenges, or funding restrictions, international criminal courts have consistently been prevented from adjudicating crimes of individuals protected by States on whose cooperation they have been reliant (unless pressured to cooperate by other more powerful States) and/or States that are particularly powerful within the international community more generally. To return to Nouwen:

“[W]hat governments have to offer the Court in terms of cooperation influences the likelihood that people protected by them will be held to account by the ICC. States that have a lot to offer in terms of cooperation when their enemies are prosecuted or that are protected by powerful states can effectively immunise their nationals from the Court’s jurisdiction. Vice versa, those who are not protected by their governments, indeed, sought by them (for instance rebel movements in Uganda, DRC and CAR) or those governments that lack protection from the hegemonic order (for example, members of the present Sudanese and former Libyan government) are targeted by ICC proceedings. Inequality between states thus also leads to inequality among individuals before the Court.”

(S. Nouwen, ‘Legal Equality on Trial: Sovereign and Individuals before the International Criminal Court’, 43 Netherlands Yearbook of International Law (2012) 151, at 171)

I see this as the central challenge for both the ICC and the field of ICL more generally.

(3) My reading of much of the critical literature is not necessarily that non-States Parties are getting some “benefit” of freedom to commit international crimes, but more that (without intending to be exhaustive):

(a) the ICC relocates the decision about the meaning of justice from the people subject to violence to an international body that focuses on punishment at the expense of alternatives. Adam Branch, for example, argues that:

“the legitimacy of any specific model of justice for dealing with legacies of extreme violence will not come from putatively absolute, unquestionable sources, whether human rights or tradition, but only through autonomous, democratic processes of deliberation, organization, and action within the community, including those who have been subject to violence themselves. The ICC intervention shuts down this deliberation and organization, rendering communication in the […] [community] public sphere irrelevant.”

(A. Branch, ‘Uganda’s Civil War and the Politics of ICC Intervention’, 21 Ethics and International Affairs (2007) 179, at 193-194)

(b) The context within which the ICC operates, and for some ICL by its nature, ensures that the Court can only ever deal with the symptoms of the world’s inequalities at risk of occluding the social structures and more deeply rooted causes that gave rise to such symptoms in the first place. According to this view, the ICC/ICL is not only limited by the inequalities of the international order, but also reinforces its patterns of domination. It is, on this view, “part of the problem” rather than an emancipatory solution.

(see, for example, G. Baars, ‘Making ICL History: On the Need to Move beyond Pre-fab Critiques of ICL, in C. Schwöbel (ed.), Critical Approaches to International Criminal Law: An Introduction (Routledge, 2014) 196)

(c) There is a concern that the ICC puts its institutional self-interest in carrying out effective prosecutions ahead of carefully considering the implications of its interventions in particular contexts – including other values that may be at stake. For instance, Adam Branch in his analysis of the ICC’s intervention in Uganda has observed that “if the ICC is willing to conform to the demands of abusive or anti-democratic states, the court may find itself complicit with the very crimes it claims to prosecute and responsible for intensifying the very violence it claims to resolve”. With this in mind, Branch argues that the ICC “should avoid intervening into ongoing conflicts, since the instrumentalisation of ICC intervention by states may lead to further militarization and violence”.

For me, it is these types of critiques to which most creative energy needs to be directed both with respect to the ICC and – perhaps more importantly – beyond it.

Kriangsak Kittichaisaree says

November 23, 2016

Dear Darryl and Barrie, you are both right but for different reasons.

Darryl is right that we don’t have to wait for ‘legal equality’ before the perpetrator of a crime is held accountable for his/her crime. The ICTR in Kanyabashi was right in rejecting the Defence Counsel’s argument that there were several other areas of conflicts and incidents, e.g. the Congo, Liberia and Somalia, in which the UNSC took no action to create an international criminal tribunal, and that in light of the UNSC’s inaction in those cases there should be no individual criminal responsibility for the events in Rwanda in 1994. The ICTR reasoned: “The fact that the UNSC, for previously prevailing geo-strategic and international political reasons, was unable in the past to take adequate measures to bring to justice the perpetrators of crimes against IHL is not an acceptable argument against introducing measures to punish serious violations of IHL when this becomes an option under international law [as in the case of the creation of the ICTR in the aftermath of the atrocities in Rwanda in 1994]….” (Decision on the Defence Motion on Jurisdiction, 18 June 1997, para. 36).

However, in any society, be in international or national, when only a sector (i.e., ethnic, racial, religious, national, political, etc. sector) of society is targeted for prosecution while the rest of society are not, it gives rise to an allegation of ‘discriminatory justice’ which, in turn, undermines the credibility of the legal system that metes out justice unevenly among all sectors of society. We have seen civil disobedience against racial/ethnic/religious/political profiling in national law enforcement. Is that kind of civil disobedience occurring against the ICC? In this sense, Barrie is right, and the various suggestions at the ASP listed by Darryl just don’t seem to resolve this structural “unequal justice” problem. The problem may derive from the fundamental nature of the international society itself. All stakeholders must come together to try in good faith to overcome any “prevailing geo-strategic and international political reason” that would prevent the ICC from functioning efficiently and as the criminal court of last resort when nation States are either unable or unwilling to render justice to victims of serious crimes under international law.

Darryl says

November 23, 2016

Thank you both! The point of my post was to commend the possibility of fact-based, open-minded discussion of the future of ICL. We’ve gotten a bit into substantive weeds here, which is understandable, but I hope we all agree on the main point (discourse).

I hope that readers will please notice that I did not make the argument that Barrie ascribes to me (ie. some justice is better than none). I was trying -- but apparently not clearly – to distinguish two things: (1) unequal application of law WITHIN one’s jurisdiction and (2) events OUTSIDE one’s jurisdiction.

Re (1), of course discriminatory application is wrong. My point was, let’s talk about situation selection, in a way that is searching and honest, but also not oversimplistic and reductive. I think a more grounded discussion could move things forward.

Re (2), I am trying to point to a problem with blaming the ICC for “unequal application of law” regarding things OUTSIDE its jurisdiction. That’s a new and unusual conception of what equality entails. Courts are not normally expected to apply law “equally” to things outside their jurisdiction.

I am trying to question the growing view that we can’t have an ICC unless it applies to the whole world. Notice I am not saying that accountability trumps equality. I am saying: that equality does not entail this; that sovereign states can adopt higher standards for themselves; and that the seemingly anti-hegemonic objection is actually inadvertently pernicious. It serves hegemony. It would mean that if the P5 oppose something, we cant do the project even amongst ourselves. That is surely wrong. My point is, states parties can choose to regulate our own juridical spaces. That’s not “unequal application of law”, that is us exercising sovereignty to adopt higher standards for ourselves.

Barrie provides a detailed restatement of important concerns from a Critical perspective. That is an important perspective and part of the truth. The concerns have great merits, but they also have their own overstatements and problems. That’s why we will need a discussion. There are other, more optimistic, perspectives that can also shed light – such as Fullerian or constructivist perspectives. The forms of law can replicate power but they also, every day, can help the powerless to win over the powerful. It would be a shame to see that possibility crushed by unrelenting suspicion and doubt.