Justice in Conflict

We are thrilled to welcome Barrie Sander as a regular author and contributor to JiC. In his latest post, Barrie examines how the ICC is a Court that was built to react and respond to emerging crises. Keep an eye out for more from Barrie in the coming days and weeks!

Chief Prosecutor Fatou Bensouda (Photo: ICC)

Last week, Mark characterised the International Criminal Court (ICC) as the kind of institution that needs to be in crisis. From that perspective, the most relevant question for the ICC is how it manages the crises it confronts. This post explores how the ICC is not only an institution in crisis, but also an institution that reacts and responds to crisis.

The ICC’s Crisis-Mentality

The ICC has tended to focus its resources on crisis situations, on situations of ongoing violent conflicts (e.g. Uganda, Darfur, Libya, Mali, Democratic Republic of Congo, Central African Republic) or recently expired periods of violence (e.g. Kenya and Côte d’Ivoire). To some extent this is understandable since the core crimes of the Rome Statute tend to arise in crisis situations. Yet, while the ICC’s crisis-focus may appear natural, it is also reflective of the workings of certain forms of power.

In particular, the ICC not only responds to crisis situations, it also constructs the terms on which such crises are understood. These terms tend to be reductionist in nature, often leading to what Gerry Simpson has referred to as “hegemonic histories”, myopic accounts of conflicts that tend to align with the interests of powerful states. This reductionism is partially a consequence of the ICC’s institutional design and partially a result of its foundations in criminal law.

Institutionally, while the ICC often proclaims the global and borderless nature of the atrocities it investigates, it is forced to function within a political environment in which state sovereignty remains an important instrument of power. To adopt Antonio Cassese’s famous image, the ICC is like a giant without arms and legs, heavily reliant on the limbs of States to function effectively. Consequently, when the ICC intervenes in a situation, it tends to pragmatically align itself with the interests of the UN Security Council and States Parties by only focusing on one side of a conflict.

The danger of this practice has been to facilitate the promotion of simplified characterizations of crisis situations as battles between the forces of good and evil. The ICC’s reductionism is not without consequence. The Government of Uganda, for example, has instrumentalized the ICC’s investigation of the Lord’s Resistance Army (LRA) as a strategy both to delegitimize the LRA’s authority as well as to legitimize its own military incursions in neighbouring States under the banner of global justice.

Moreover, by focusing on the actions of flesh-and-blood individuals, the ICC may inadvertently divert attention from the roles played by a broader range of actors, including corporations, States, and international organisations. Similarly, by focusing on direct violence, the ICC tends to abstract crises from their underlying structural causes, with the risk of mystifying their origins. As Tor Krever has recently put it, “the preoccupation remains with the abnormality of conjunctural violence, rather than the normality of the forces – including economic and legal structures – that lurk beneath”.

The failure of the ICC to deal with more systemic forms of repression is not problematic per se; after all, selectivity and exclusion are inevitable features of all legal institutions. However, when the ICC monopolizes the language of global justice through assertions that it is responding to the “most serious crimes of concern to the international community as a whole”, it is more than a little troubling when many of the crimes that appear to support the interests of the “international community” are relegated to the shadows beyond the ICC’s grasp.

The new ICC premises under construction (Photo: Mark Kersten)

Responding to the Critique of the ICC’s Crisis Mentality

Clearly, some of the above critiques target unavoidable features of the ICC system, such as the limits of its jurisdiction and its inability to control how actors beyond the courtroom attempt to instrumentalize its practices. Equally, however, the ICC does have some room for maneuver in responding to these critiques.

(1) A Revised Public Relations Strategy

First, the ICC could adopt a more careful public relations strategy, one that expressly acknowledges the limits of its interventions in crisis situations. This would require an ICC Prosecutor prepared to self-reflexively draw attention to what she cannot do. Fatou Bensouda has arguably begun to adopt this strategy by using her symbolic power to attribute blame to the Security Council for failing to adequately assist her office with respect to the situation of Darfur. However, the ICC Prosecutor could go much further.

For instance, in her press release concerning the surrender and transfer of Lord’s Resistance Army (LRA) Commander Dominic Ongwen, the ICC Prosecutor could have avoided painting a reductionist picture of the conflict in northern Uganda as one dominated by “the LRA’s reign of terror”. Instead, she could have reiterated the need for the investigation of alleged abuses committed by Ugandan governmental forces, for non-criminal forms of justice that are better equipped to meet the social and economic needs of those affected by the conflict, and for alternative, more participatory justice modalities that are better equipped to interrogate the structural causes of the conflict.

Critics may argue that, to the extent the ICC Prosecutor draws attention to abuses allegedly committed by Ugandan government forces, she risks losing Uganda’s support and cooperation in conducting its investigations against members of the LRA. But this is a risk worth taking if the ICC is to avoid being depicted as a partial instrument of the Ugandan government. Continue reading →

The ICC. (Photo: ANP/AFP/File Robin Utrecht)

It has become increasingly common for scholars and observers of the International Criminal Court (ICC) to state that the ICC is in “crisis”. Conference panels, a host of academic articles, news pieces and op-eds seem drawn towards posing some variation of the questions: “is the ICC… in crisis? …irrelevant? …legitimate?”

There is much merit to the debate. It acts as a useful organizing principle around which to analyze the challenges facing the Court and international criminal justice more generally. Moreover, there is little point in denying the fact that the ICC has experienced a contentious few years and that criticisms of the Court are well-placed.

Just Some of the ICC’s “Crises”

Former Chief Prosecutor Luis Moreno-Ocampo may have put the Court on the map of international politics but he also consistently gave his office the impression of being overtly political and biased. The Court’s first trials were rocky. The trial of Thomas Lubanga was almost dismissed twice on the basis that the prosecution had violated the defendant’s right to a fair trial. In October 2014, the prosecution of  Kenyan President Uhuru Kenyatta collapsed. Many predict a similar fate for Vice President William Ruto. Still others believe that the Court is, in fact, fortunate to not have to prosecute Sudanese President Omar al-Bashir because the Prosecution simply isn’t ready for that kind of a trial.

At the same time, the ICC has been unable or unwilling to open official investigations into states outside of the African continent and doesn’t have access to key situations where, rightly or wrongly, many expect it to intervene – places like Syria, Sri Lanka and North Korea. All the while, the ‘big fish’ indicted by the ICC, such as Joseph Kony of the Lord’s Resistance Army and al-Bashir, roam free. The Court’s arrest warrants against them often appear to be something between a minor nuisance and an opportunity for them to prove their recalcitrance to the international community. To top it off, the Court’s outreach remains weak. Despite two years of apparently ongoing web design, the ICC’s website remains as inexplicably user-unfriendly as ever and the Court’s social media engagements are virtually non-existent.

If we stopped there, it would be impossible not to conclude that yes, the ICC is in crisis. However, that would be unsatisfactory because the debate regarding the ICC being in crisis misses a crucial point: the ICC has always been in crisis and is the kind of institution and project that needs to be in crisis. The question we should be asking is thus: how is the Court managing the diverse array of crises it confronts?

A Court in Perpetual Crisis

Part of the problem of viewing the ICC as being “in crisis” is that it suggests that the Court has “entered” a period of crisis. But the historical record bears out a Court that has existed in a succession of crises since its inception.

When diplomats gathered in 1998 negotiate the Rome Statute, the ICC was already in crisis. Proponents and negotiators were palpably nervous, scrambling to find compromises on crucial issues. Would and could the Court be independent of the Security Council? Would the major powers – the US, China, India, Russia, etc. – kibosh negotiations? Was the world ready for an independent and permanent international criminal court? While compromises were found, even when the Statute was accepted by a vast majority of states in Rome, there was still no clear sense that the Court would ever become a functioning reality. The possibility that it would be nothing more than a paper tiger was all too real.

Indeed, the 60th state ratification of the Rome Statute in 2002, which signaled the Court’s arrival as a functioning entity, came as something of a surprise to ICC supporters. Few, if any, thought the Court would become a reality so quickly. But the Court’s establishment was not only met with pomp and circumstance. There was also a real sense of insecurity in the early days of the institution’s existence. Staff that witnessed the birth of the Court will tell you, there was no guarantee that the ICC would last even a few years.

Omar al-Bashir, indicted by the ICC on charges of war crimes, crimes against humanity, and genocide, seems mostly unconcerned about the Court’s arrest warrant against him. (Photo: Mohamed Nureldin Abdallah / Reuters)

Their fears were not unfounded. Under the administration of George W. Bush, Washington notoriously levied a barrage of hostile measures to undermine the Court. Again, the ICC managed to survive this political crisis. For better or worse, in the second half of the 2000s, the relationship between the US and the ICC had thawed. Today the Obama administration speaks highly of its positive engagement with the Court and has voted, from its perch in the UN Security Council, in favour of ICC interventions in Libya and Syria.

As noted above, the ICC also experienced crises in its first trials, especially the Lubanga and Kenyatta trials. Its first interventions at the behest of the UN Security Council were likewise deeply contentious. The Court readily accepted politically tailored referrals from the Security Council, presumably convinced that the cost was worth it if the Council enforced any arrest warrants the ICC subsequently issued. Yet the ICC has ended up with almost nothing to show in both situations referred to it by the Security Council – Darfur (2005) and Libya (2011). In late 2014, ICC Prosecutor Fatou Bensouda went so far as to suspend her office’s investigation of Darfur over the lack of Council interest in supporting the Court’s mandate.

The ICC as a Crisis Manager

ICC advocates often reply that much of the Court’s crises are not of the institution’s own making but rather the result of an international community unwilling to back the still young institution. This is only partly true. While the ICC does not exist outside of international politics and does depend mightily on the support and cooperation of international actors (especially states), it also has institutional agency and thus the ability to choose between a series of options as it manages the crises it faces. So how does the ICC navigate and learn from the crises it faces?

Here, it will come as no surprise that the Court’s record is a mixed bag of successes, failures and open promises. As David Bosco has eloquently described, the Court has demonstrated to the US that it would not step on Washington’s political toes and would avoid intervening in situations where the US had long-standing interests. In response, the US has engaged increasingly (albeit very selectively) with the Court. The ultimate wisdom of this position of “mutual accommodation” remains to be seen, as does how the US-ICC relationship will be affected by the Court’s investigation into Palestine and the use of “enhanced interrogation techniques” by US citizens in Afghanistan.

On its relationship with the UN Security Council, the ICC’s record is also mixed. There is a widespread consensus that both Security Council referrals of situations to the ICC (Darfur in 2005 and Libya in 2011) have done more damage than good to the ICC. Frustratingly, however, the Office of the Prosecutor has not taken the opportunity to take a clear position on the subject or seek clarification for highly politicized referrals by the UN Security Council that exclude citizens of non-member states from ICC investigation and prosecution. The Prosecutor can and should seek the opinion of Judges at the ICC. There is even a precedent for this. When Uganda attempted to refer the Lord’s Resistance Army to the Court, the Office of the Prosecutor requested that ICC Judges interpret the referral as meaning “the situation in northern Uganda”. Continue reading →