Negotiating Justice at the ASP: From Crisis to Constructive Dialogue

During the past two weeks, the world came together in The Hague for the Assembly of States Parties (ASP), the annual diplomatic meeting on the International Criminal Court (ICC). It was clear that this session would be crucial for the ICC’s future and its place in the geopolitical constellation. The weeks before had thrown the Court in somewhat of an existential crisis: Burundi, South Africa and Gambia announced their withdrawal from the ICC. Several other states, such as Uganda and the Philippines, announced that they might leave too. Russia withdrew their signature from the ICC a day after the Court called the Crimea situation an international armed conflict and occupation. And US mobilization against the ICC is anticipated following the Court’s announcement that it may soon open full investigation into Afghanistan, including US conduct. Not surprisingly therefore, the main theme of this year’s ASP was (African) critique, cooperation and complementarity (i.e. the relationship between national prosecutions and the ICC as a court of last resort). However, observers of this year’s ASP also noticed a remarkable turn of attitude, language, tone and body language by representatives of the ICC and most state delegations. Like Darryl Robinson pointed out in his post, the discussion on the critique of the ICC during this ASP session could be described as “groundbreaking” – open, respecting and mature – while “constructive”, “dialogue” and “common ground” became this year’s sound-bites.

How the ICC and the project of international criminal justice will affect and be affected by this shifting geopolitical landscape remains to be seen. However, more than merely a technocratic meeting between states on the management and budget of the institution, the ASP functions as an annual diplomatic ritual where stakeholders reconstitute and renegotiate the ICC, and the international criminal justice field more broadly. It is a site of continuous (re)negotiation and political proxy battles on the law and politics, practice and development of international criminal justice. As such, the ASP offers an ethnographic prism for understanding how consensus and contestation in global deliberation processes forms part of the identity project of international criminal justice.

Lost amid polarization

This year was decidedly different from previous years, when polarization grew increasingly tense. Previously, there were on the one hand states, particularly from Africa, that denounced the ICC as “useless” and a “racist vehicle,” and as counterproductive to peace and even to justice. On the other hand, the ICC along with other states and representatives from civil society largely dismissed critical voices as irrelevant or misunderstood. They tended to point to how it has been African states themselves that referred cases to the Court, that each and every case concerned very serious crimes, and that those African states have been unable or unwilling to prosecute themselves. While this is not untrue, what has gotten lost amid these polarized positions has been the far larger and more important voices of critique on the tensions embedded in the structures and conditions of implementing and “delivering” international criminal justice on the one hand, and imagining what kind of justice international criminal justice is expected to provide – and for whom – on the other. That, for instance, notwithstanding whether the ICC would actually be racist, the inability of the ICC to prosecute Western states creates the perception that it is only Africans that commit international crimes and need intervention from The Hague. Or, that the ICC-system’s preference for one type of justice – individual criminal accountability – does not always align with the needs of affected communities. As recognized by ASP President Sidiki Kaba, it remains a challenge to deliver justice to victims while ensuring local ownership to justice. Indeed, one might argue that it is this disconnect between the handing down of “international” justice and the lack of recognition of political subjectivity that has inscribed itself within the post-colonial narrative of the “civilizing mission” in Africa, and which has proven itself to hold such potent political currency in legitimacy battles over the ICC.

The ASP as a site of global deliberation

Because “justice” is always derived from “somewhere” and “someone,” its manifestation is contingent on choices and assumptions on what the best choices would be. We suggest that the ASP can function as a useful mechanism to deliberate over such choices. As a treaty-based Court, the ICC’s foundation is consensus and state cooperation. However, as we wrote two years ago, a significant tension arises between the ASP meeting as a space where agreement and joint achievement must be achieved, and as a space where political contestation and deliberation is necessary for the ICC’s legitimacy to be acknowledged. Only when such inclusion of views is acknowledged, can the ICC increase its standing as representing a form of “universal” justice. By feeling not being taken seriously, discontent and disengagement have festered among some state parties to the Court. This has given currency to the neocolonial critique to be used and abused by forces/leaders that seek to destroy or undermine the ICC to mobilize the more valid critique for their camp. In other words, the recent withdrawals and looming domino-effect announced the culmination of a crisis that has been unfolding for years, with anti-ICC resolutions by the African Union (AU) and open hostility during last year’s ASP. Yet, whereas previous years emphasized consensus to the point of dismissing contestation, this year, the constitutive role of the ASP for international criminal justice was taken much more seriously.

Through crisis to constructive dialogue

In so doing, the focus during the 10-day ASP meeting this year seemed to move from crisis to a focus on “constructive dialogue.” Most delegations showed a more open attitude – ready to listen and seek joint solutions – rather than convince others of their definitions of what constitutes global justice. The Netherlands, for instance, said that the critique raised by Africans is not just “African critique” but that they see and share some of the core issues that are raised too. And Tanzania submitted that it was very pleased that African concerns are finally heard. As explanation, the African Union and many African states, including South Africa and Kenya, raised that the African states have been the most important supporters of the Court, that the unresponsiveness to African concerns and proposals caused the withdrawals, and that there is a need for reflection of critique to find and refocus again on commonalities. Moreover, Uganda pointed out that perceptions of unevenly targeting Africa is not “just perceptions” – they are real in their consequences. On this point, Nigeria both defended and encouraged the ICC by sharing that for them it had been very helpful that the Office of the Prosecution (OTP) came to visit and addressed their concerns. Nigeria argued that such sensitization is crucial, that the ASP has a role to play here too, and that most problems can be resolved at the roundtable. Practical concerns were also raised, such as by Senegalese Justice M’Back Fall of the Hissène Habré trial, who explained that although national prosecutions and complementarity is very important, to finance such cases is a real challenge for states, which is a realistic problem when talking about complementarity and ending the impunity gap.

The ICC itself also chose a strikingly different approach this year. Throughout the ASP, they were visibly more present than other years, and they repeatedly brought a message of adjusting expectations, understanding the political and legal reality and limitations, and opening up to reflection. For example, ICC Chief Prosecutor Bensouda said that the ICC is not a panacea, that it can only do a few cases and cannot end impunity in the world alone. And ICC President De Gurmendi stressed that the ICC is only one part of the system of justice and can only be a last line of defense, and that it is therefore important that states remain members. The most powerful message, however, was delivered by ASP President Kaba, who connected the constructive voices from both sides of the aisle. “Talking about it does not mean listening to it” Kaba said, explaining that although the issue of selectivity was discussed at times before, no one appeared to be listening and that it is important to be heard and to listen with respect. He also welcomed that finally critique was discussed in the open and more genuinely: “You have to name the illness if you want to cure it.” And called for more respect vis-à-vis African states: “South Africa is a country that defeated many injustices that we can all learn from.” His closing words were devoted to referring to the member states as a family, that needs to stay together, to work together on justice, and that the ASP is the place to do this.

In this setting, South Africa also brought a decidedly more constructive attitude than prior to the ASP, by stating that during the 12-month notice period before actual withdrawal, they are open to engage within the ASP structure to try and find a solution.

What’s in a crisis?

The insistence on constructive dialogue at this year’s meeting reflects the recognition that the ICC’s crisis signifies a much deeper problem in international criminal justice than the withdrawals of three out of 124 states. It signifies a breaking of the universal – of the principled and ideal pursuit of universal ideals and implementations of (criminal) justice. In this idea of the universal, consensus is fundamental, and contestations and talk of politics become something to be feared and suppressed, because it would undermine the imagined inevitable progress towards humanity’s law and the fragmentation of the identity of international criminal justice. It presumes that universality entails that all should agree on how to strive for justice and that an acknowledgement to the contrary contests the idea of global justice.

A different reading of the political however, would emphasize politics as ultimately about recognizing diversity and plurality – of acknowledging the simultaneous existence of “the other” in the same place and time. Understood this way, it is the “end of politics” – the idea(l) of law that would function in a vacuum, detached from politics – that should be feared, since that would represent hegemony of one conceptualization of justice over everyone else’s.

Depending on how stakeholders handle it, whether it is not too late for many involved, and whether there are sufficient powers to resist those that seek crisis with the intent to destroy, the so-called crisis can in fact open up space for a more genuine conversation. In a crisis, one may speak more frankly than is habitual in diplomatic fora, and see the challenges and what is at stake clearer, focus better on the core as well as the horizon, separate the important from the less important. In other words, this crisis forces all to open up to a daunting realization and challenge: to acknowledge the politics of justice, readjust its claims and practices, recognize that law is dynamic and thus may require amendment because law reflects the society in which it is part; it creates and is created, comprising both the potential to clarify normative ideals, and to consolidate existing power structures and inequalities. The road ahead is therefore daunting and challenging because there are no guarantees that this will lead to a better system. Or better put, it is certainly not going to be viewed as better by each and every one, but it will be so by others. It is a realization that justice is fundamentally dialectic: its ideals, meanings and materializations are under continuous negotiation – as it is in any domestic justice system. This is its strength, to develop along with the constituency it seeks to function in and for. It should therefore be treasured, rather than feared and shoved off. But this does not mean that it is an easy endeavor: any domestic justice system experiences continuous challenges, and it is therefore no wonder that to create a justice system for this world full of diversity, is highly complex and challenging. However, without resilience and flexibility, the international criminal justice system won’t make it past the stage of being at the very least perceived as a dominant and imperialist court.

The future of the ICC: moving beyond Rome

As we wrote two years back, a familiar phenomenon when political contestation on the ICC occurs openly, is the referencing back to Rome, where the ICC was created in 1998. “Rome” is presented as a site where all were friends, conjoined in a mutual campaign against atrocity crimes, striving for justice, “on behalf of the conscience of humanity.” “Rome” is presented as a standstill moment in time, representing the greater force for good, overarching the smaller disagreements that may at times surface, which is then responded to with a statement that invokes what those (usually “we”) in Rome intended. With this narrative, the idea that such contention could represent a more fundamental critique that goes to the core of how international criminal justice is interpreted and administered globally is dismissed and shoved off the agenda. While “Rome” indeed does represent a historic moment in time where many powers in the world came together to agree that a particular type of crimes were to be addressed through a particular procedure, and in a particular institution, it would be a misrepresentation of history to think that those involved also reached substantive agreement on what “justice” entails, for all and everyone, everywhere. This sort of narrative emphasizes global criminal justice-making as part of a single linear history, rather than as a result of political struggles and social relations.

Last Thursday, the ASP closed with a call for “unity and dialogue” on the ICC. In this light, it is important to think hard on what kind of unity and dialogue is needed – and by whom and for whom.  Instead of a demotion of accountability for human suffering and human rights violations, we believe this will strengthen the authority and legitimacy by which the world responds to such atrocities. Because legitimacy must continually be renegotiated, acknowledging the ASP as a space of deliberation – of claims and counterclaims to the ICC’s interpretations of justice – is a way in which the ICC can seriously address current attacks on its legitimacy. This year’s ASP broke decidedly with the old polarization and appeared to genuinely search for a way to engage critically, open and constructively. It remains to be seen how this turns out, and whether there is sufficient political will to refrain from solely focusing on short-term solutions, and cynical or blind band-aids. More fundamental reflection is needed to allow the ICC to become a resilient institution, which is of crucial importance not only to address its current challenges, for which the upcoming African Union Summit will be a critical next stage to see whether states will stay or more states will leave, but also those that it will face if it takes up more powers in the future, and in particular the US and Russia. “Constructive dialogue” shouldn’t just be rhetoric, but should permeate the discourse on international criminal justice; it needs to move beyond articulated intentions by state delegates into observable exchanges by relevant stakeholders.

“Unity and dialogue” in the words of ASP President Sidiki Kaba means not to deny critique and point back to what was once intended in Rome. It means taking others seriously and working respectfully together on what we share. In his own words: “We are here as a family. We must, hand in hand, meet these challenges, even if it is painful, even if it is difficult. But we must move forward, together, so that values of justice, freedom for all, equality and equity can triumph.”