(The International Criminal Court. Photo: Mark Kersten)
It is a regular occurrence to hear how the International Criminal Court (ICC) serves the interests of of particular actors, be it warring governments, rebel groups, or members of the international community more broadly. Rarely, however, have scholars and observers considered how the ICC’s decision-making is shaped by the ICC’s own ‘institutional self-interest’.
At the heart of criticisms that the ICC is ‘political’ is the view that the Court is inherently and inevitably selective. This critique is deployed both within and between situations. In cases such as Uganda, Cote d’Ivoire and Libya, it is argued that the ICC has erred in targeting only one side of the conflict. Alternatively, it is argued that the Court focuses myopically on the weakest states in the international community (see the ICC-Africa debate), leaving situations where major power interests collide (e.g. Iraq, Syria and Afghanistan) beyond the reach of international justice.
At the same time, the ICC has a well-rehearsed and institutionalized answer to these critiques: the Court can only investigate where in those states where it has jurisdiction; it can only investigate the ‘gravest’ crimes; and it will only seek to bring to account those individuals ‘most responsible’ for war crimes, crimes against humanity and genocide.
These arguments are familiar to observers of international criminal justice. Each has merit and undoubtedly guides the decision-making and reasoning of the Office of the Prosecutor (OTP). But there is something else going on. It isn’t nefarious but it isn’t particularly transparent either.
At an event held by the Coalition for the International Criminal Court (CICC), newly appointed ICC Deputy Prosecutor James Stewart made the following observation:
“The Prosecutor, for example in the case of Cote D’Ivoire, has always made it clear that she intends to look at all sides of the conflict. Sometimes you just can’t do everything at once. You have to make a choice between action and paralysis and between pragmatism and ideals. And I think if you choose pragmatic action, you really shouldn’t be criticized. But in the end, I suppose history will tell us whether or not the OTP has acted appropriately.”
While it is important to note that Stewart’s comments pertain specifically to the case of Cote d’Ivoire, there are grounds to suggest that such an approach is applicable to the OTP’s approach to (at least some) other situations.
There are at least three important points to take away from Stewart’s comments:
1) In at least some of its cases, the OTP believes that the ‘ideal’ is to prosecute all sides of a conflict.
2) The OTP believes that actually targeting both sides at the same time would harm its interests and the interests of justice, resulting in paralysis.
3) When faced with the dilemma of targeting one side of a conflict and not others, the OTP views being selective as a ‘pragmatic’ choice.
Deputy Prosecution James Stewart. (Photo: ICC)
This adds a new layer to our understanding of how OTP decisions are made. It suggests that the OTP’s political calculus takes into account not only what is good for international justice but also what is good for the Court. Ultimately, then, at least four groups of political actors and their positions will potentially influence ICC decisions:
1) The position of the referring actor, especially when it is a state (e.g. Government of Uganda) or the Security Council (e.g. in the case of Darfur and Libya). These actors will try to encourage or coerce the ICC into investigating individuals and groups they view as ‘enemies’ (e.g. the Lord’s Resistance Army in northern Uganda and the Gaddafi regime in Libya). Notably, in no case of a self-referral has any individual from the referring party been indicted by the Court.
2) The position of ‘global civil society’ and the international ‘human rights community’. These actors, by and large, advocate the normative and moral principles underpinning the ICC and the impartial investigation of all sides responsible for international crimes. Inevitably there will be some exceptions (e.g. Invisible Children in Uganda propelling cases against the LRA and not the Government of Uganda). Importantly, these actors have effects not only on the Court but on other members of the international community, although their ‘normative reach’ across cases is up for debate.
3) The position of interested states in the international community, especially major powers. The ICC is likely to be prodded or encouraged to focus its work in specific ways and to investigate or not investigate certain cases where the interests of powerful actors are at play (see US position on ICC investigations in Palestine and Iraq; China, Russia and US position on ICC investigations in Syria).
4) The position of the ICC itself. This has changed dramatically as the Court has progressed from a nascent institution that was once unsure how long it would survive to one with 120 member-states and eight situations in its docket. Numerous forces, including those above, affect the ICC’s position and conception of self-interest. Broadly, the Court is expected to pursue decisions that can foreseeably add to its legitimacy and political credibility.
So what does this ‘pragmatism’ look like in practice? Let’s briefly consider two examples: Uganda and Libya. Continue reading
Justice in Conflict 