Benjamin Nutt joins JiC for this guest-post which critically explores issues of selectivity at the International Criminal Court (ICC). Benjamin is an Associate Lecturer in Politics and International Relations at Plymouth University. He has recently completed his PhD, titled: ‘A Search for Justice: An Analysis of Purpose, Procedure and Stakeholder Practice at the International Criminal Court‘.
From ‘victors’ justice’ at Nuremberg and Tokyo to the alleged ‘anti-Serbian bias’ at the International Criminal Tribunal for the former Yugoslavia (ICTY), allegations of unfair selectivity have long shrouded the search for international criminal justice. The International Criminal Court (ICC) is no exception. Whether it be an ‘African bias’ or a focus against rebel leaders and deposed politicians, claims of unfair selectivity by the Office of the Prosecutor (OTP), and subsequently the ICC, are as vociferously purported by the Court’s opponents as they are rebuked by its supporters. It is this binary division that signifies how this debate surrounding the OTP’s practice is framed. By criticising and defending the OTP’s actions in the context of selectivity, selectivity has manifested itself as an issue in itself and something to be avoided, thus creating the impression that universalism in terms of where and who is targeted by the OTP is not only possible but also desirable and synonymous with justice. It is not that simple and it is important to recognise that transactions of justice are, by their nature, inherently and inevitably selective.
Justice transactions involve choosing, or selecting, between competing claims for resources and entitlement. Furthermore, there is often no correct or perfect approach. Different theories or conceptions of justice offer different outcomes and solutions. This reality is demonstrated by Amartya Sen’s ‘flute analogy’, in which three children stake competing claims to a flute. Each of the children’s claim to the flute is championed by a different theory of justice and Sen notes that — absent the possibility of chopping the flute in three and thus rendering it useless — there is no realistic, workable outcome that could reconcile all the children’s claims simultaneously. The point here is that notions of justice are selective by nature. In the context of the ICC, this is particularly relevant as the OTP is selective by design. The OTP has a mandate to be selective, driven by the concepts of complementarity and gravity. In other words, the most pertinent question regarding the OTP’s practice is not if it is selective but how it is selective.
Instead of focusing on selectivity as a primary issue within OTP practice, the debate should be reframed so that consistency and transparency become the chief focus. Consistency and transparency are central elements of just decision-making, underpinning both the processes through which decisions are made and the outcomes they produce. But, of these factors, consistency and transparency of outcomes ranks as the most important with regards to the OTP’s, and subsequently the ICC’s, credibility and legitimacy because, as the most visible component of any justice transaction, outcomes are most vulnerable to criticism.
When analysing the OTP’s actions, it is important to note that the ICC Prosecutor is mandated to investigate and prosecute those individuals responsible for atrocities from the most severe situations and that historically international criminal justice processes have been reserved for situations with high mortality rates. However, concerns could plausibly be raised regarding the seeming inconsistency in the gravity of the situations currently under Full Investigation by the OTP, particularly when gravity is measured quantitatively (in terms of the scale of the crimes committed) and viewed as synonymous with a situation’s death-toll (or a ‘litres of blood’ measurement). For example, there appears to be a large inconsistency between the death-toll statistics for the Democratic Republic of Congo (DRC), Uganda and Darfur situations, all of which are extremely high (hundreds of thousands), and those of Kenya, Central African Republic and Burundi, which are noticeably lower in comparison (a few hundred). These are realities that perhaps serve to highlight inconsistencies in the OTP’s selection criteria and/or practice. Continue reading