As African leaders publicly question their support for the International Criminal Court, a wide range of ICC supporters have rallied to its defense. Peter Dixon and Chris Tenove examine the allies and the forms of authority that the Court can turn to, using the theoretical framework they put forward in their recent paper in the International Journal of Transitional Justice. Peter Dixon is a doctoral candidate in Sociology at UC Berkeley, now studying transitional justice processes in the Democratic Republic of the Congo (and trying his hand at blogging at Beyond The Hague). Chris Tenove is a doctoral candidate in Political Science at the University of British Columbia and a semi-regular Justice in Conflict blogger.
(Cartoon: The Economist)
Over the next two days, representatives of African Union governments will hold an “emergency summit” in Addis Ababa to discuss the relationship between AU members and the International Criminal Court. The summit will be a critical test of the ICC’s authority. Should AU members decide to withdraw from the Rome Statute as a bloc, the Court’s ability to operate on the continent and to advance its aims will be seriously – perhaps fatally – undermined. Several commentators have considered the meeting’s significance, potential outcomes and implications (and offered their own suggestions). Here, we would like to discuss what the summit tells us generally about what international criminal justice is and how it works. In particular, we would point to claims about the ICC’s authority made by those who rally to its defense.
In a recently published paper, we propose a framework explaining which actors are involved in international criminal justice (ICJ), what kinds of fundamental rules and practices motivate them and what forms of authority they wield. We think our approach sheds light on the upcoming emergency summit. Notably, while some may see gamesmanship and deal-making by international diplomats only as a threat to the ICC’s legitimacy, we argue that the Court in fact draws legitimacy from inter-state diplomacy. A critical juncture like the AU summit exposes how actors deploy this and other forms of authority to defend the Court and the broader field of ICJ.
Our framework, which brings together insights from our respective fields of International Relations and Sociology, has two principle components. First, we see international criminal justice as a field–a sociological concept rooted in the work of Max Weber and Pierre Bourdieu. Actors in a field share certain practices and adhere to fundamental “rules of the game”, even when they compete with one another. The rules of the game for ICJ include, among others, the assumptions that certain egregious acts should count as violations of international law by individuals rather than states and that there are formalized processes of proving and punishing these violations. Importantly for our framework, and for our reading of the AU summit, the ICJ field has developed at the intersection of three well-established, powerful and global fields: criminal justice, human rights advocacy and inter-state diplomacy. [For those interested, there are a number of great examples of contemporary field analyses—see, e.g., Medvetz, Stampnitzky, Adler-Nissen and Mudge and Vauchez, to name a few.]
African Union Summit, 2013.
This positioning provides ICJ institutions like the Court with access to valuable forms of authority, the second component of our model. We propose that the various actors who engage with the field of ICJ try to advance their position – and advance the field of ICJ – through different claims to authority. Following the influential work of IR scholars Michael Barnett and Martha Finnemore, we identify four forms of authority, all of which we can see at play in the discussions surrounding the upcoming summit. ICJ actors draws on delegated authority because states create and authorize tribunals to act as their agents in the pursuit of particular mandates. ICJ practitioners make claims to legal authority, due to international criminal law’s overlap with public international law and domestic criminal law, as well as the legitimacy of legal norms and practices in modern societies. Practitioners draw on moral authority by proposing that ICJ addresses terrible forms of violence and suffering, and by creating and mobilizing victims of international crimes as a transnational constituency. Finally, ICJ actors advance their expert authority by claims to possess specialized knowledge.
These forms of authority are important to the ICC because, lacking an army and possessing a relatively small budget, it has limited access to other “harder” forms of power. The Court’s influence is thus highly dependent on whether other actors accept the legitimacy of its claims to authority. Those who contest the ICC can do so in two ways. They can challenge the Court’s claims to possess these four forms of authority, such as when a group claims that the Court harms rather than helps victims. Those who oppose the ICC can also advance alternate forms of authority, such as when a leader argues that his role in defending the nation trumps legal rules, or when accused persons claim that fellow members of a particular group should value group solidarity over concerns about the suffering of victims or condemnation from the international community.
The impending AU summit has prompted many competing claims about the ICC’s authority. Here are a few illustrative examples:
- Tawanda Hondora, the deputy director for law and policy for Amnesty International, made a series of appeals to the moral authority of the ICC, that are characteristic of human rights advocates. “Today, the AU must stand firm with the victims of human-rights violations allegedly perpetrated by their own leaders,” he proclaimed. Continue reading
Justice in Conflict 