What lies beneath? The turn to values in international criminal legal discourse

On the 9^th of April, the Office of the Prosecutor (OTP) of the International Criminal Court submitted a request for a ruling by the Pre-Trial Chamber on whether the Court has territorial jurisdiction over the deportation of Rohingya people from Myanmar to Bangladesh. This development may impact how the ICC approaches its territorial jurisdiction in future, and raises interesting questions over the legal nature of the crime of deportation. However, the submission also gives rise to questions of a more theoretical nature that relate to the normative basis of international crimes, or more specifically, the acts that constitute them. The Prosecutor’s submission on jurisdiction over deportation into Bangladesh highlights an emerging trend in international criminal law towards identifying and surfacing the individual values or rights underlying international crimes. This coincides with a broader debate on the legal goods protected by these crimes, and invites us to consider the implications of this trend for the communicative function of the law.

Part of the Prosecutor’s submission on jurisdiction in Bangladesh addresses the distinction between the crimes of deportation and forcible transfer. The former requires the crossing of an international border, while the latter does not. In her discussion of this issue, the Prosecutor states that the ‘distinction between deportation and forcible transfer is necessary to give effect to the different values protected by the two crimes’ (at §17).  She goes on to say that while both crimes ‘safeguard the right of individuals to “live in their communities and homes”, deportation also protects a further set of important rights: the right of individuals to live in the particular State in which they were lawfully present—which means living within a particular culture, society, language, set of values, and legal protections’ (at §17). What is striking about this statement is its nuanced analysis of what the criminalisation of these specific acts aims to protect, and its identification of particular types of rights as providing the normative foundation for the distinct crimes.

The discussion of the values underlying deportation and forcible transfer in the Myanmar/Bangladesh submission on jurisdiction reflects what seems to be a broader trend towards identifying the ‘values’, ‘rights’ or ‘interests’ being protected by the acts that constitute international crimes. A particularly striking example of this type of interpretation occurred during the Prosecutor’s opening statements in the Ongwen case, in which the OTP argued that ‘the value protected by the criminalisation of forced pregnancy […] is primarily reproductive autonomy.’ In light of the lack of consensus on an independent right to reproductive autonomy, as well as some academic critiques of the definition of forced pregnancy as failing to centralise the violation of the victim’s reproductive choice, it seems almost radical that the OTP would identify reproductive autonomy, as opposed to more settled and established interests such as bodily integrity or human dignity, as providing the normative basis for the crime of forced pregnancy. In a similar vein, and echoing the Special Court for Sierra Leone, Pre-Trial Chamber II in the same case has described the crime of forced marriage as ‘violating the independently recognised basic right to consensually marry and establish a family […] This basic right is indeed the value […] that demands protection through the appropriate interpretation of article 7(1)(k)’ (at §94).

Framing crimes in this way is not an entirely new phenomenon in international criminal justice. ‘Values’ such as life, physical integrity and human dignity have long been recognised as underlying international crimes in a general way. Indeed, more specific interests underlying particular criminal acts were being identified as early as the Tadić Trial Judgment, where the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia articulated its understanding of the crime of persecution to be ‘the violation of the right to equality in some serious fashion’ (at §697). Similarly, in Muvunyi at the International Criminal Tribunal for Rwanda, the Trial Chamber described the criminalisation of rape as having ‘the objective of protecting individual sexual autonomy’ (at §521).

The language in each of these examples may not be consistent in terms of whether the basis of the crime is framed as a legal right or a more general ‘value’. What is nevertheless interesting about these, ultimately symbolic, declarations, is that they bring to the fore the acts that constitute international crimes and highlight the extent to which their normative nature, and possible relationship to international human rights law, remain relatively poorly understood. To date, theoretical accounts of international crimes have tended to focus on the overarching categories of war crimes, crimes against humanity and genocide. Such accounts (e.g. here, here and here) have focussed on the nature of these crimes in terms of group-based violence, with somewhat general treatment of the theoretical underpinnings of the acts that constitute them, most commonly identified in terms of bodily integrity, security or subsistence rights. In a similar way, while discussion of the legal goods protected by international crimes has recognised their collective-individualist nature, analysis has so far been limited to fundamental and well-established individual legal goods such as life or human dignity.

While addressing this gap would provide us with a more holistic theoretical understanding of the nature of international crimes, there may also be practical implications to the failure to examine more thoroughly the normative nature of particular types of criminal acts. Given the general rhetoric around international criminal justice’s role in ‘sending messages’ about the international community’s shared values, and indeed the perception that this communicative function may constitute one of the justifications for conducting prosecutions of international crimes, inquiring into exactly what norms and values may be articulated by prosecutions for particular crimes would seem critical for a better understanding of what international criminal justice is actually doing, or has the potential to do, in this area.

The ICC’s prosecution of Ahmad Al Faqi Al Mahdi for intentionally directing attacks against religious and historic buildings provides a clear example of how particular acts within the broader categories of war crimes, crimes against humanity and genocide can articulate very specific types of values. Indeed this trial was justified, and welcomed, precisely in terms of the values it sought to articulate. During opening statements, the OTP described the war crime of attacking protected objects as a crime ‘against that which constitutes the richness of whole communities. And it is thus a crime that impoverishes us all and damages universal values we are bound to protect […] to protect cultural property is to protect our culture, our history, our identity.’

At the same time, the value or interest protected by a particular criminal act may not always be as clear as in the case of attacks on cultural property. The evolution of the recognition of rape under international law from a crime against the victim’s honour (or the honour of their family or community), to a violent assault on the victim’s bodily integrity, to being explicitly recognised as a violation of an individual’s sexual autonomy, provides a stark illustration of how identifying the values perceived to underlie a crime may have significant implications for the types of norms or values that its prosecution may be articulating.

And indeed, as noted here, even crimes such as attacks on cultural property that, on the face of it, appear straightforward in terms of the values that underlie them, may be more complex once we ask whose cultural heritage the criminalisation of this act can be understood to protect. Do universalist values of the common heritage of all humanity, as stressed by the OTP in the Al Mahdi case, underlie this crime, or does a more local conception of common heritage, attached to the community in which the object is embedded, provide the justification for criminalising such acts. This question might influence not only what types of cultural property might be prioritised in international criminal cases, but would also be revealing of the type of global vision international criminal justice may be espousing.

For this reason, the growing number of prosecutions for more varied criminal acts, including as yet un-tried crimes, or those that are only beginning to be charged such as transfer of population into occupied territory, gender persecution or forced pregnancy, and the attempts to identify the values that the criminalisation of these acts is seeking to protect, provides us with an opportunity to re-visit our understanding of the nature of international crimes, the legal goods that they protect, and the messages prosecuting them may be conveying.

Regardless of what transpires in the ICC’s involvement in Myanmar/Bangladesh, the OTP’s analysis of the rights to culture and citizenship protected by the crime of deportation, coming as it does at a time when forced displacement is at its highest level ever recorded globally, invites us to reflect on how identifying and surfacing the values or rights underlying particular criminal acts could help to maximise the expressive impact of prosecuting international crimes and clarify what it is we are ultimately saying by doing so.