Skip to main content Accessibility help
×
Hostname: page-component-7c8c6479df-hgkh8 Total loading time: 0 Render date: 2024-03-29T01:12:01.744Z Has data issue: false hasContentIssue false

Part I - Law’s shape and place

Published online by Cambridge University Press:  14 December 2015

Christian De Vos
Affiliation:
Open Society Justice Initiative
Sara Kendall
Affiliation:
University of Kent, Canterbury
Carsten Stahn
Affiliation:
Universiteit Leiden
Type
Chapter
Information
Contested Justice
The Politics and Practice of International Criminal Court Interventions
, pp. 21 - 144
Publisher: Cambridge University Press
Print publication year: 2015
Creative Commons
Creative Common License - CCCreative Common License - BYCreative Common License - NC
This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC 4.0 https://creativecommons.org/cclicenses/

1 In whose name? The ICC and the search for constituency

Frédéric Mégret
Introduction

Who is international criminal justice imagined as being rendered for? Who are the beneficiaries or at least recipients of its work? And, relatedly, who is the ‘we’ in international criminal justice?Footnote 1 Specifically, who is imagined as being the symbolic authority behind the International Criminal Court’s (ICC) work? Is the authority behind the ICC the same as its beneficiaries, or are they distinct? These questions are rarely addressed directly, but they go to the heart of the project of international criminal justice, especially as it conceives of itself as a project of intervention, one whose legitimacy is constantly in need of buttressing.

In this respect, studies of the legitimacy of international institutions and international criminal tribunals sometimes look at these subjects from the outside in, rather than from the inside out. In other words, they are interested in the extent to which legitimacy can be granted by something external (by focusing on issues of mandate or accountability, for example) rather than how its legitimacy may be produced, at least in part, by international institutions themselves through a range of choices and strategies. All theories of the legitimacy of international institutions – theories based on mandate/consent, charisma, rule adherence or results – can nonetheless be reframed as something that tribunals do not simply inherit or obtain but deliberately seek to activate, as agents of their own legitimacy.Footnote 2

The main hypothesis of this chapter is that constituency building and invocation is a key part of the Court’s search for legitimacy. There is by now a rich emerging literature on the legitimacy of international criminal tribunals, focusing, for example, on their ability to adhere to noble founding principlesFootnote 3 or to be responsive to the populations whose decisions they affect.Footnote 4 However, this chapter is less interested in the issue of legitimacy as such than it is in a number of practices of legitimacy that international tribunals engage in because they apparently feel compelled to. In that respect, I am interested in the fact that legitimacy is something that actors seek to produce actively and it does not simply derive unproblematically from their existence. I also deliberately leave aside the question of whether such practices actually make international tribunals more or less legitimate; I merely focus on the fact that it makes them what they are. The point is to investigate how the appeal to certain constituencies – their production through discourse and narrative – helps to construct a particular role and identity for the ICC. ‘Speaking in the name of’ may or may not boost international criminal tribunals’ legitimacy, but ultimately it speaks more – through questions of legitimacy – to an ongoing sense of identity and place in the world. It is, in other words, constitutive of international criminal justice, regardless of whether it is also legitimising of it.

This chapter is therefore interested in the way practices of legitimacy are inherently tied up with the ability to ‘speak for’ or ‘speak in the name of’, to occupy a certain space in international interventions of ‘standing in’ for something bigger than oneself. This is not the same thing as consent theories, in that I do not claim that external constituencies have actually given their consent to (or ‘authorised’) the ICC’s intervention (they may have, but that is not the problem). Indeed, the ability to ‘speak in the name of’ is not the same thing as ‘speaking with a mandate from’ or even ‘having spoken to’. ‘Speaking in the name of’ may be the exact opposite of these things in that one is not specifically authorised to do so by those involved, and one may even speak for them without ever having meaningfully interacted with them. Rather, following Sara Kendall and Sarah Nouwen’s lead,Footnote 5 I am interested in practices of representation without consent, or where the consent is at best imagined. Indeed ‘speaking in the name of’ often refers to a type of legitimacy that is produced in the eyes of a third party or oneself, rather than necessarily the agent one is speaking for. For example, one could ‘speak in the name of victims’ but not particularly interact with them, as some theories of the legitimacy of international criminal justice insist is vital.

In the process, I hope to make a contribution to our understanding of international criminal justice’s politics of representing itself as a complex exercise in which strategies of discursive representation compete with and may even, over time, undermine each other. While practices of representation have garnered increasing attention, the existing scholarship has focused mostly on how representation relates to victims. Without denying the importance of that particular constituency (which is discussed in the final section), this chapter stresses that victims are only one possible constituency and representation strategy among others. Moreover, assessing the current centrality of victims as a source of symbolic legitimacy for the ICC entails an understanding of what particular void victims end up filling, and what their existence owes to the challenges involved in constructing alternative constituencies.

In that respect, the debate on the constituencies of international criminal justice mirrors and charts – although it never fully overlaps with – two similar debates. The first is the domestic debate on for whom criminal justice is rendered. As is well known, a traditional focus on the state and public order has occasionally ceded space to a view of criminal justice as having a more societal function or as directed primarily at victims.Footnote 6 Such debates have had a profoundly structuring effect on criminal justice: they are both manifestations of its changing nature and causes of it. The second is the old international debate on who the ultimate beneficiaries of international law are. Again, a traditional focus on the state has long been challenged by a view of international legal institutions operating for the benefits of peoples or individuals.Footnote 7 Although these debates will not be addressed as such here, it is unsurprising that the debate on international criminal justice – as the ultimate hybrid between both international and criminal justice – echoes these separate conversations.

Specifically, this chapter will characterise the debate on the implicit beneficiaries of international criminal justice as the product of a tension between a propensity to imagine a number of ideal recipients and a countervailing temptation to concede who the actual patrons of the project are. The more abstract the imagined recipients of international criminal justice, the easier it becomes to claim things in their name, although also the more artificial the move may appear to be; the more concrete the ‘patrons’ of international criminal justice, the easier it becomes to claim political backing, but the more it risks appearing as merely their object. This idea draws on the work of Martti Koskenniemi and his identification of the oscillation between apology and utopia as the inevitable fate of international legal argumentation.Footnote 8 However, it reconceptualises this oscillation as embedded in actual institutional practices of representation, rather than simply legal-doctrinal discourse. In between these extremes, the chapter argues that a ‘local turn’ in the justificatory strategies of the ICC is discernible, one focusing on ‘societies’, ‘communities’ and ‘victims’. The strength of this strategy is that it appears to ground itself in both the reality and dignity of actual suffering. However, as I will argue, this is a difficult strategy to execute in conditions where victims’ aspirations may be quite at odds with those of the Court.

Imagining the ICC’s ideal recipients

Doubts about the legitimacy of international criminal justice in a world of states may lead to a degree of rhetorical flight. In a context where international criminal justice cannot prevail itself of the backing of a world sovereign, the temptation may be to move beyond sovereignty altogether. At the most abstract level, the ICC may perceive itself, or be perceived as, working for ‘Justice’. This is a fairly traditional conceit, one that foregrounds the value of an idea as antecedent to the institutions seeking to incarnate it. This reference to a disincarnated, a priori form of justice is certainly present in the discourse. For example, Amnesty International has supported the notion of ‘prosecuting crimes in the name of international justice’.Footnote 9 International criminal tribunals are conceptualised as the embodiment of a certain idea. This sort of discourse is never far but its fragility is all too obvious. Justice is an appealing ideal, but it is hard to think of it as an operative principle and even less as a constituency. Moreover, appeals to international justice are easily suspected of having ulterior motives.Footnote 10

A more concrete cosmopolitan defence of international criminal justice might emphasise the degree to which it is being pursued ‘for the sake of humanity’.Footnote 11 Such ideas have a venerable pedigree, starting with the notion that there is such a thing as ‘crimes against humanity’, which reminds us of the extent to which humanity is sometimes largely constructed negatively, through its breach.Footnote 12 The Rome Statute itself nods to this notion in its preamble by emphasising ‘that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time’. Such references are reminiscent of an earlier age when the existence of a civitas maxima was taken for granted. The emergence of the notion of crimes against humanity is very much seen as one of the most evident moments of genesis of a cosmopolitan law, transforming the idea of humanity from a ‘regulative idea into a substantive reality’.Footnote 13 It represents the culmination of successive processes of abstraction from actual victims – for example, the hardly evident idea that the Holocaust is not primarily ‘the culmination of the history of anti-Semitism’ or ‘the history of racism at its worst’ but a ‘crime against the human condition’, which manifests ‘the cosmopolitanisation of political life’.Footnote 14

The ICC, in this context, might be seen as ‘act[ing] in the name of humanity, to protect the interests of humanity’.Footnote 15 The beauty of such a reference is that it bypasses states altogether and portrays international criminal justice as operating directly and radically for the benefit of a sort of cosmopolitan audience. It is part and parcel of the invention of a constitutive humanity as the very basis of international institutions of justice and further officialises the idea of certain matters as inherently public concerns, as opposed to part of states’ ‘private’ affairs.Footnote 16 The existence of ‘humanity’, moreover, opens the way to the exercise of an international form of sovereignty superseding states within which the ICC presumably has a central role to play in the impartial ascription of suspicion and guilt. It builds on several strands in international law, including a long and infamous tradition of bombing in the name of humanity.Footnote 17

This sensitivity is quite present in the discourse. As Ilana Feldman and Miriam Ticktin have shown in their book-length treatment of the ability to speak ‘in the name of humanity’, the fact that every universalistic claim may hide a quite particular viewpoint does not change the potency of the claim that something is universal.Footnote 18 Theories of cosmopolitanism that emphasise its roots in experience (particularly the Holocaust) rather than Enlightenment-type philosophisingFootnote 19 provide at least an air of plausibility to the notion that ‘humanity’ is affronted by certain crimes. The ICC might be seen as a leading artisan in the cultivation of sentiments extolling its own role as a vanguard of the historical emergence of humanity in international politics. There is at least superficial plausibility that ‘humanity’ – either as a community or an essence – is harmed whenever thousands of people are slaughtered.

Nonetheless, it is a strategy that has some evident weaknesses. There is a degree of abstraction in the notion that, for example, the Rwandan genocide was primarily committed against ‘humanity’, when its perpetrators were surely only interested in massacring Tutsis qua Tutsis. To see genocides as essentially identical crimes against the diversity of humankind may be to put too philosophical (and perhaps too Western) a spin on offences that have very localised dynamics. Indeed, whilst the Rwandan government has drawn on the cosmopolitan moorings of the notions of crimes against humanity and genocide, going to great lengths to ensure that what happened in 1994 was directly traceable to the Holocaust, it has also at times shunned the cosmopolitan consequences that would ensue, notably in the form of a dispossession of the case load for the benefit of the international community. When it suited its needs, the Rwandan government was adamant that these were crimes committed primarily against Tutsis or the Rwandan nation, not humanity. There may even be a risk of moral trivialisation of atrocity crimes when their particular gravity is seen as a function of how they affect the whole of mankind or the idea of mankind, rather than crimes of flesh and blood.

Moreover, there must be a difference between the existence of a general, abstract hostility to crimes against humanity and support for the ICC as a peculiar institution, not to mention actual ICC policies. It may be hard, in fact, to argue that there is considerable cosmopolitan support for the ICC independent of particular successes the Court may or may not be able to claim for itself. Although public opinion in countries that have joined the ICC is generally supportive of the Court, that is not always true of countries that have been the target of investigations. A fortiori beyond states parties, public opinion may be indifferent or hostile to the ICC’s interventions (except as they may, very exceptionally, indirectly affect them or some of their allies). All of this belies the idea that ‘humanity’ speaks with one voice in its condemnation of international crimes.

In effect, the prioritisation of cosmopolitan ambitions over local demands, from Uganda to Libya, is easily faulted for being disconnected from where the true locus of justice should be. It has been repeatedly assailed not only for its lack of realism but, more pointedly and painfully for cosmopolitans, for its inherent unfairness, thus weakening the matter-of-courseness of the cosmopolitan case. As Adam Branch puts it, for example,

[W]hen international prosecution is not in solidarity with local demands, then the idea that any part of humanity is entitled to punish those guilty of ‘crimes against humanity’ necessarily entails a rejection of others’ autonomy and self-determination. The decision, on the one hand, to seek justice through punishment or, on the other, to forgo punishment in favor of justice through reconciliation, is a decision that must be made by the concrete community that is the victim of the crimes and that will have to live with the consequences of the decision. ‘Humanity’ is too thin a community upon which to base a universal right to punish.Footnote 20

It is quite clear that international criminal tribunals are aware of these arguments – regardless of their ultimate merit – and wary of pushing the cosmopolitan argument too far, lest they appear too disconnected from the reality of international and local politics.

A rather more grounded variant of the appeal to ‘humanity’ is the notion that the ICC is working for international civil society more generally. There is certainly much evidence that the Court would not be what it is without the support of a number of NGOs actively involved in the last two decades – but particularly in the run-up to and at the Rome conference – in promoting its principles.Footnote 21 More importantly, the Court has gone on to treat NGOs as a serious constituency, hosting, for example, regular meetings with civil society representatives in The Hague. This reliance on civil society is also a feature of some well-known critiques of the Court.Footnote 22 As Emily Haslam has argued, the reliance on formal transnational advocacy networks loosely representing ‘victims’ has, in addition to objectively benefitting the ICC, ironically helped to muzzle the voices of actual victims.Footnote 23

One of the problems is that civil society cannot easily stand in for humanity or be equated with the world’s population. The NGOs present at the Rome conference may well have had a crucial degree of expertise, but it would be very hard to see them as a substitute for real democratic engagement. Moreover, it is one thing to say that the ICC was created thanks to, and is supported by, civil society, but another to say that international criminal justice is rendered in its name. Such a basis for the legitimacy of the Court would run into all of the typical critiques that have been made of civil society’s claims to represent different constituencies. This is all the more so since civil society happens to be divided on many issues concerning international criminal justice and therefore does not offer an unambiguous support base. In the African context, civil society has been found on both sides of the debate. Again, what matters is less whether international criminal tribunals are actually working for civil society than the perception within the tribunals that these arguments can only be pushed so far on both empirical and normative grounds.

Acknowledging the ICC’s patrons

If the invocation of ideal constituencies turns out to be too abstract, the ICC can opt for another strategy: acknowledging the extent to which it is working for a number of ‘patrons’ who cannot be equated with humanity. For example, a classical way of seeing international criminal justice is as being rendered by and for the international community, which is itself understood less as a global community of mankind than as the society of states. This is what one might view as a ‘Grotian’ imagination of the constituency of international criminal justice, one focused on sovereigns, but only insofar as they transcend their sovereignty through belonging to a social whole. Again, a rhetorical inclination to invoke the international community is evident in much literature on the ICC and the Court’s own discourse. A sensitivity to this more grounded view is evident, for example, in the way in which the ICC is constructed and presented as conducive to international peace and security – surely a widely shared goal of the international community – and as the heir to some of the narrower earlier projects of international criminal justice incarnated by the ad hoc tribunals. The recognition of the Security Council’s power to defer investigations is recognition of this fact.

There are, however, evident problems with this view. The ICC’s operations may be in tension with some more traditional concerns of the international community, such as the ability to use tools like amnesties. The international community’s deep divisions when it comes to the role of international criminal justice in international affairs may end up belying the notion that there is much of a community to speak of. Or, it will come together briefly to support international criminal justice, in ways that suggest that its interest in supporting the ICC is merely tactical and instrumental. In other words, while the ICC may portray itself as conducive to international criminal justice generally and ‘sell’ its more general justice mandate on that count, the international community may be interested in it only to the extent that it is conducive to international peace and security.Footnote 24 The relative enthusiasm with which the Security Council once referred the situations of Sudan or Libya to the Court as part of the management of complex crises suggests precisely such an instrumentalism.Footnote 25

More importantly, the idea that the ICC is working for the ‘international community as a whole’ only works if one thinks of the Court as being quasi-universal or at least as having a recognised vocation to be.Footnote 26 However, this view seems blind to the reality that prospects for universal ratification are extremely dim at present and even in decades to come. A less generous view would see the ICC as merely the Court of a particular club, bringing together European, South American and African states. There is a clear and lasting ‘exterior’ to the Court that belies its view as ‘naturally’ tending towards universality. The international criminal law regime is not the laws of the sea regime, or even the laws of war regime, whose quasi-universality align them naturally with concepts of international community. This is most evident in the rapport between the ICC and the United Nations (UN), the one organisation that can make a good claim to being universal. The integration of the Security Council within its functioning suggests a certain mutual recognition but, in fact, the Rome Statute allows the UN to do something that in all likelihood it could have done anyhow. Adding insult to injury, the UN has considered that the Rome Statute gives it privileges but few obligations; in particular, the Security Council has refused to consider that it ought to finance the very investigations that its referrals have mandated.Footnote 27

If not really an emanation of the international community at large, the ICC might be seen as a sort of avant-garde, acknowledging that it is working directly only for some states (typically state parties), but at least creating a positive externality (peace, justice) for the entire international community. For example, Sara Kendall has shown the success of a view of states parties as the primary ‘shareholders’ of the ICC, at least in the discursive strategies deployed by the Prosecutor.Footnote 28 There may be something disingenuous, however, about the idea that the ICC is working for the international community at large, despite the fact that there seems to be nothing temporary about non-states parties’ refusal to join, and their quite principled reasons for not doing so. At any rate, the idea that states parties ‘sacrifice’ themselves for the greater good, in that they expose themselves to international criminal justice at least partly for the sake of others, is not very plausible.

A somewhat more grounded view would acknowledge that the ICC’s more direct constituency is its states parties, and only really those states parties. This has the advantage of classicism: at least in strict public international law, an international institution is only working ‘for’ its members, whatever benefits it may more or less accidentally yield are for its periphery. This view, in other words, would emphasise the extent to which the ICC is a states parties’ ‘thing’, an institution working, albeit diffusely, for their collective interest. In effect, the ‘we’ in international criminal justice is often heavily associated with states parties rather than the international community at large.Footnote 29

The Assembly of States Parties (ASP) could be seen as the central manifestation of this inward-looking constituency of the Court. It has been quite boldly described as the ICC’s ‘legislative body’Footnote 30 (as if the ICC were a sort of democracy). Effectively, it has the ability to adopt norms such as the Rules of Procedure and Evidence (which states parties specifically did not want to be left entirely to praetorian judicial creation), the Elements of Crimes and the addition of new crimes, including the definition of ‘aggression’. The ability to elect judges and prosecutors (and, symmetrically, to remove them) shows that this is evidently a prerogative of states, which also take the ‘risks’ associated with Court membership. Finally, the ASP is at least theoretically the final stop for the Court when dealing with non-cooperation by a state party, and it has recently shown its ability to reform the rules of the Court to accommodate certain state interests.Footnote 31 One can conceptualise the Assembly as a form of permanence of the political interests that gave rise to the creation of the ICC, with a certain power to monitor its activities and set a loose framework for its work.

There are, nonetheless, several problems with this view. First, the idea that the ICC works unmistakably for the interests of its members may be denied (occasionally vigorously) by some states parties themselves. There is in other words a difference, and sometimes quite a wide gap, between states’ initial adherence to the Rome Statute and the actualisation of their national interest in various circumstances, one that may lead them to express frustration, disappointment or anger with the Court. Several African states parties have been less than moderate in their efforts to contain African Union initiatives to limit the power of the ICC; they have at times seemed to join the enemies of the Court, as for example when they accepted the possibility of excusal from presence at trial for high-ranking officials.Footnote 32 Ensuring that states parties behave as supportively as they might be expected has become a deliberate goal of international civil society.Footnote 33

In this context there may be something disingenuous about saying that international criminal justice is exercised for the benefit of state parties in the face of flagrant denials by actual states parties that this is the case. At any rate, the ability of states parties to control or influence the ICC, although greater than that of non-states parties, remains somewhat limited. For example, the ASP is only tasked with management oversight of the administration of the Court and not, for example, prosecutorial decisions. The ICC involves a ‘high degree of delegation’ compared to other international institutions.Footnote 34 This means that if the Court can claim that it is working ‘for’ states parties, it must be able to do so despite some member states’ denial that this is the case and complaints about the Court’s lack of responsiveness to their needs. The ICC therefore cannot be equated with states parties’ interests, since the latter’s interests vary considerably.

Moreover, the idea of international criminal justice as foregrounding the interests of ICC states parties may sacrifice too much in terms of ideals. It often seems key to the rhetoric of the ICC that it is not merely a privately run, inward-looking project but one that is more generally in the global or cosmopolitan interest. Moreover, if the ICC is really run in the interests of its members, then it is hard to avoid the conclusion that its members should have some sort of right of veto against particular investigations or prosecutions that are not seen as conducive to their actualised national interest. Although this is close to what some states have sought, becoming a member of the ICC has almost always been understood as involving at least a theoretical risk to states parties in the form of unexpected and adverse investigations/prosecutions.

Yet, an even more grounded view might see international criminal justice as rendered for the benefit of those particular states that have referred cases to it. Here the view of the ICC might be of a sort of ‘international public service’ of justice, ready and willing to render services to states in need. This view is at least consonant with the evolution of the notion of complementarity, less as a form of discipline against recalcitrant states than as a vector of transmission of cases to The Hague, through the practice of so-called self-referrals. The element of global justice, international ordre public and top-down enforcement is thereby radically relativised, if not exactly trivialised. The Court acts as a service provider when for some reason states decide that it would be in their interest to have a supranational jurisdiction deal with sensitive cases for them.

It may well be that the Court has become exactly such an annex to states’ designs. However, ICC proponents have also argued that the Court will not simply allow itself to become a puppet of sovereigns’ designs. Moreover, this view of referring states as the constituency of international criminal justice has been amply criticised as sovereign-consensual: the ICC is so in line with states’ interests as to be virtually indistinguishable from it.Footnote 35 In short, rather than the ICC having states as a constituency the Court risks becoming a pawn of the states.

Finally, an extreme realist view might see the ICC as always having been in a sense subservient to big power interests, notably as a tool of influence for European middle powers,Footnote 36 and perhaps even the United States. Here, the element of groundedness is impeccable, and an argument may be made that the ICC was always more or less darkly conceived as an instrument to express a certain civilisational domination over the African continent, or something even more tactical – linked, for example, to the possibility of the use of force. However, such a view raises problems of plausibility: surely the Court escapes big powers’ calculus at least occasionally, if only because their interests must be at odds at least sometimes. Moreover, it raises considerable normative problems: although the ICC is sometimes denounced as a puppet of big powers, it is almost never defended as such precisely because to do so would undermine its very claim of being an institution of justice. For example, it is notable that the option that the Court operates entirely at the whim of the Security Council was excluded early on in negotiations.

The ‘local turn’: of societies, communities and victims

The challenge, then, seems to be to find constituencies that do not appear eerily abstract at the risk of undermining international criminal justice’s authenticity and power, nor so grounded as to associate it with merely the use of force. The classical vehicle for doing so is of course international law itself, and international criminal law might very much appear to serve that role. International criminal justice might be understood as merely an instrument of ‘the law’. This form of representation – international criminal tribunals as natural steps somehow mandated by the existence of international law and expressing that ideal’s actuality in history – is quite common, even if not always quite as conscious. The idea of international law is often complemented with the idea of a universal rule of law, of which international criminal tribunals are a natural, perhaps even essential, element.

The strength of such an appeal is that international law already incorporates its own compromises between apology and utopia, and comes with an already stabilised identity. It confers upon international criminal justice an aura of indisputable historical pedigree, portraying international criminal tribunals as the latest and perhaps most promising attempt in setting up a universal rule of law. The personification of the law – its idea as a living, even thinking and acting, force of progress in historyFootnote 37 – is one of the most powerful rhetorical tropes conceived by the legal imagination. Such personification also powerfully reinforces a particular professional constituency, that of international criminal lawyers.

The idea of international criminal justice as merely a slave of the law is both aggrandising and depoliticising, since major dilemmas of interpretation can be understood as merely part of professional exercises of competence. Nonetheless, such an appeal remains problematic. It is too abstract because ‘international law’ is hardly a constituency; it is more of an idea or a project. Or it risks being too grounded if the law is effectively reduced to the interests of a particular profession, which is surely an unappealing option. At any rate, it is quite clear that nothing in international law compels the creation of international criminal tribunals and that, moreover, blind following of international criminal law might lead to deeply problematic results in terms of legitimacy. Appeals to the law serve to partly legitimise the practice of international criminal justice but they cannot ground its existence.

One characteristic of both ‘lofty’ and ‘grounded’ constituencies of international criminal justice is that they both seem ultimately rooted in traditional understandings of the international. On the one hand, justice, natural law and humanity; on the other hand, international public order, states and sovereignty. Both types of appeals thus play out in quite predictable and somewhat circular ways. As has been shown, each ‘descending’ appeal risks being denounced as excessively apologetic, as renouncing too much in terms of what makes international criminal justice recognisable to its proponents; conversely, each ‘ascending’ appeal risks undermining the sovereign basis of international criminal justice needed to make the enterprise both credible and legitimate. Hence the temptation of trying to bypass the state/international community dichotomy by more radically piercing the sovereign veil (not without irony, since this is precisely what international criminal justice is otherwise supposed to be about). Much of the work of the ICC, in particular, can be seen as developing at least a symbolic societal, communitarian and victim constituency. I say symbolic because, in the end, whether that constituency exists, or exists quite the way it is imagined, is relatively independent of the belief that it does.

The idea that the ICC works for the societies whose individuals it prosecutes is one that has some resonance. The rhetorical frame of reference is at least clearly more often societal than statist. For example, a communiqué of the International Federation for Human Rights (FIDH) describes the Ruto and Sang trial as a ‘historical opportunity’ for Kenyan society to ‘face the truth and find justice’.Footnote 38 In this sense, the goal of international criminal justice is less an international legal goal of reining in states than the transitional justice goal of helping societies shift to forms of governance that minimise the likelihood of recurrence of international crimes. The real or imagined support of ‘societies’ has thus become a key prong in the struggle for legitimacy between international criminal justice and state elites. ICC supporters may even seek to portray society as, in some respect, against the state when it opposes international criminal justice, and the state as no longer having a monopoly on the representation of its society. Conversely, democratic legitimacy, when it is forthcoming, will be heralded by the state as evidence that the government has an unassailable claim to be equated with society.

That international criminal justice is rendered for particular communities is less explicitly touted, but it is sometimes implicit as part of the pro-victim rhetoric. It is less explicit because it might render international criminal justice vulnerable to accusations of partiality and as merely doing one group’s bidding. Nonetheless, international criminal justice is hardly foreign to the notion that ‘not all communities are equal’: in armed conflict or following atrocities, some have clearly suffered a disproportionate burden. The claim that justice is rendered for particular communities, rather than for society at large, is sometimes present in the rhetoric, although often as a criticism (as in the suggestion that Rwanda is organising a form of ‘Tutsi justice’).Footnote 39 Rather than communities per se, it is communities of victims that have emerged as one of the most explicit imagined constituencies of the ICC.Footnote 40 The idea of victim communities meshes well with the notion, now quite broadly accepted, that reparations will ultimately have a broad collective character.

The emphasis currently placed on victims at the ICC can be partly explained by the weaknesses and precariousness of other constituencies. The more general focus on victims is now something that is quite well documented. Kendall and Nouwen, for example, have shown the ICC’s near obsession with ‘victims and the justice they deserve’ as the ‘sole raison d’être of the ICC’.Footnote 41 They suggest that whilst ‘juridified’ victims have become an ever-narrower category, the ‘abstract’ victim has become an almost deified entity, which they boldly describe as the ‘absent “sovereign” of international criminal law’.Footnote 42 The invocation of victims serves to silence dissent and to make international criminal justice unimpeachable (who, after all, will dare being against victims?).Footnote 43 The ICC seems content to let go of all its other potential constituencies for the benefit of this one. Contra ‘society’ or ‘communities’, victims are a category rather than a specific group. They may not even think of themselves as bound by anything other than the chance of having been victimised by the same individuals who are facing charges before the ICC. The emphasis on victims is evident both in what has become a historically relatively generous victim participation regime, and in the increasing focus on reparations as the ultimate outcome of the trial. ICC authorities have undertaken explicit efforts to court victim communities, engaging in significant outreach activities and touring affected regions, all in an attempt to obtain the sort of local support that is seen as indispensable to the enterprise’s success.

Although different, these potential victim constituents provide similar advantages for the Court. First, they avoid the dangers characteristic of arguments about international criminal justice as either too concrete or too abstract. As such, international criminal justice avoids the danger of clinging to too statist a vision of itself by following (only with probably more urgency) the path of many domestic criminal justice systems that have sought, notably through a greater emphasis on victims, to redefine themselves as having a more social function. Simultaneously, the ICC avoids the accusation of excessive abstraction because victims are in a sense as concrete as can be, whilst avoiding the suspicion of excessive groundedness, for victims are not presumed to have any particular political agenda outside of justice.

Second, talking directly to/for societies, communities and victims can be a way of forging alliances that bypass the state altogether and empower the Court against recalcitrant sovereigns. In effect, the ICC deemphasises the state element in its interventions in favour of a societal emphasis – the international community, states, humanity – that is portrayed as being directly in touch with particular intra-state groups.Footnote 44 Victims also come endowed with an inherent dignity and respectability that is hard to question politically without incurring the ever-present suspicion of revisionism, which can help silence dissent. As Kamari Clarke puts it, ‘the pursuit of justice invoked through privileging claims of victim subjectivity is a technique that manifests aspirations of justice as both real and justified.’Footnote 45

Third, references to ‘society’ or ‘victims’ share with references to ‘humanity’ or ‘the international community’ the fact that these are diffuse constituencies, in whose name it is therefore all the easier to speak. Societies, communities and victims are less likely to forcefully and at least univocally protest an ICC intervention than are states or the organised variants of international civil society. At any rate, the relative lack of organisation of these diffuse constituencies may create opportunities for a forceful outside intervener to try to articulate their needs in lieu of them. The distinction between actual victims and abstract victims routinely invoked by international criminal tribunals,Footnote 46 or the emphasis on organised advocacy NGOs purporting to act as intermediaries rather than real victims, is also what makes it possible to, in a sense, claim ‘the victims’ voice’, even against actual victims’ voices. In effect, the faceless victim comes very close to an invocation of ‘humanity’, for it is in the name of the victim’s abstract humanity that international criminal justice is invoked.

Nonetheless, there are evident problems with the investment in these diffuse constituencies, and the idea that they constitute facile (or even unmistakably helpful) refuges from more classical international constituencies. All are more fractured entities than their ordinary invocation suggests, and the ICC’s invocation of them is a recurring story of being confronted with the messiness and ambiguity of reality. In fact, it is often the ICC itself that will have to give up implicit claims about the more or less unitary character of societies as ultimately implausible. Confronted with claims that ‘Kenyan society’ or ‘Sudanese society’ or ‘Ugandan society’ wants certain things (typically something other than what the ICC would wantFootnote 47), and the consequent marginalisation of those who seek to cooperate with it, the Court has been forced to problematise the notion that there is such a thing as a unified society speaking with one voice.

Instead, the ICC will seek to highlight that those who speak ‘for’ society may only speak for certain quarters of it, and at any rate not necessarily for victim communities and individual victims. They will designate certain groups (typically those that are supportive of its actions) as having similar or better claims to representing ‘society’ or to be doing it a service by locally upholding the cause of international criminal justice.Footnote 48 If nothing else, they will emphasise the existence (as the case may be) of majoritarian support for the ICC.Footnote 49 In other words, the Court will engage in its own politics of calling the bluff of those who speak for others.

Furthermore, even though the ICC may invoke all of the above quite freely, states are constantly in competition to represent them. The recalcitrant state will also invoke society, communities and victims and may have more powerful tools to do so (national allegiance, a propaganda machine, etc.). Indeed, there will be nothing that a state might appreciate more than the opportunity to remind the world that, even if hated or contested by part of its population, it better represents the demos. In this context, the precariousness of the representation claims of the ICC is that they emanate not from a broad mandate from populations, but from an ability to satisfy their peculiar demand for justice, an ability that is severely limited by the Court’s powers and constraints – of fairness to the accused, adherence to the international rule of law – that it would not want to easily shake off.

Finally, and perhaps more importantly, societies, communities and victims may have or develop the ability to speak in their own name. Indeed, they will occasionally protest ICC interventions, belying the idea that such interventions are being carried out for their sake. As Laurel Fletcher argues convincingly, the practice of international criminal justice constantly exposes a gap between ‘real’ and ‘imagined’ victims, the latter being used to implicitly exclude the former.Footnote 50 At the very least, they will routinely complain about the partiality, slowness and insensitivity to local needs of international prosecutions. This was clear in Uganda, for example, where some victim communities tended to act as arbiters of international justice, faulting it for being too focused on the Lord’s Resistance Army rather than the Ugandan military, in effect being too committed to a sovereign constituency.Footnote 51

The reality and legitimacy of the ICC’s efforts to represent victims was also called into question: ‘How can you try to right a wrong, when you have not spoken to those who were wronged?’ asked one Ugandan victim.Footnote 52 In the Darfur case, a number of Sudanese citizens even managed to make submissions as amicus curiae to the Court opposing admissibility. In a sense, therefore, the ICC calls attention to victims at its own risk: if they are pliant and supportive, then the Court’s legitimacy will be enhanced; if they are invoked too freely, its bluff may be exposed. Challenges to the legitimacy of the ICC coming from victims have thus arguably hurt it most, and have been perceived as a potentially mortal wound. If international criminal justice is not even for victims, given how much it has invested in that idea, then it becomes hard to imagine what its justification could be.

Ultimately, the claim to represent societies, communities and victims’ aspirations, even against their clearly stated frustrations (or straightforward opposition), will end up weakening the ICC’s own quasi-democratic ethos. It will drive the Court into a posture of paternalism in which it claims to know better what is good for victims than they do; into a flight of abstraction, invoking ‘justice’ and ‘humanity’; or a descent into concreteness, invoking the mandate given by referring states. If these contradictions are exposed, the very legitimacy of the exercise of speaking for victims will be exposed as highly questionable, if not outright fraudulent.

Conclusion

This chapter has sought to examine the extent to which the legitimacy, identity or authority of the ICC can be understood as a function of who its constituents are understood as being, and who the Court can more or less successfully claim to ‘speak for’. More importantly, invocations of justice or ‘humanity’ show the Court as the servant of an ideal and depoliticise it. On the negative side, such appeals may fail to convince many beyond a small core of activists or other interested parties. Seeking to ground the ICC in something more tangible comes with distinct advantages. The Court cannot be dismissed as irrelevant or utopian. It has powerful patrons and knows what it is doing.

But this grounding comes with its own set of dangers as well. The greater the perception of the ICC as anchored in sovereign consent and will, the more the Court risks being viewed as sacrificing some of its sacred justice mission. The invocation of societies, communities and victims has thus emerged as a sort of ideal middle ground, one that bypasses a few of the tensions inherent in basing legitimacy on some variant of the international argument but that also has its pitfalls. Victims, in particular, may be a prized constituency, although it is not evident that the ICC is willing to do what it takes to represent actual victims as opposed to a highly idealised version of them.

Three more general lessons seem to emerge. First, in the discourse of international criminal justice, ‘who?’ and ‘for whom?’ are questions that are intimately related. For example, if justice is perceived as being rendered ‘for X’, then the suggestion may be that it is X that is, if not actually rendering justice, the authority that gives the ICC the symbolic or moral power to do so. X will be imagined as both the beneficiary downstream and the implicit authority upstream. Even if the authority for international criminal justice and its constituents are not envisaged as the same (as in ‘the international community rendering justice for victims’Footnote 53), they will be seen as coterminous or closely related. This particular circularity (international criminal justice rendered ‘by and for X’), then, reinforces the status of international criminal justice by underlining the congruence between subject and object and reducing anxiety about appropriation or instrumentalisation.

Second, the politics of ‘speaking for’ can be understood as responsive to a number of needs and constraints. Questions of identity and authenticity evidently matter, and ‘speaking for’ is not only ever an instrumental exercise. Understanding whom one thinks of oneself as speaking for is a way of understanding what international criminal justice practitioners and institutions think they are doing. Invoking certain constituencies is also a way of seeking to capture some of their legitimacy for the international criminal project, and perhaps for certain directions in which the project seeks to orient itself. Which constituency is invoked at any given junction will depend on a range of exogenous and endogenous factors, the degree and strength of resistance that the ICC faces and what its particular tactical and strategic goals are in any given circumstance. In that respect, some constituencies may be prized for what one can say in their name, and the relative ease with which those things can be said. Imagining highly abstract beneficiaries has the advantage that it is hard to go wrong or at least to disprove the usefulness of international criminal justice. Who is to say, in the end, whether ‘humanity’ will be well served by the actions of the ICC?

Third, it is important to note that the constituencies of international criminal justice – victims, states and the ‘international community’ itself – are both imagined and real. They are to a degree imagined as collectives existing at times through nothing else than the rhetorical force of the spokespersons of the project. In that respect, constituency discourse is constitutive of constituencies, rather than the other way around.Footnote 54 However, representation is not a one-way process and the reaction of those on behalf of whom one speaks (or who can legitimately make a claim to being those in whose name international courts speak) is a significant factor in assessing strategies of representation. International criminal justice does not have a monopoly over the creation of its constituencies, who are likely to have an ability to ‘speak back’ to those who claim to speak in their name.

In the end, practices of ‘speaking for’ typically oscillate between many constituencies based on what the ICC can realistically get away with and what politics it is seeking to promote. Local support may be the default preference and it certainly is ideal from the point of view of international criminal justice’s legitimacy and effectiveness in particular settings in a context where a number of alternative grand narratives – a ‘world state’, ‘humanity’, ‘global peace’ – are clearly on the defensive. However, when that support is not forthcoming, several retreat strategies are available, buttressing either the sovereign credentials of international criminal justice or its long-term legacy for future generations. Ultimately, every constituency can be mobilised against any other constituency: the state can be faulted for letting down ‘humanity’ and its own population, not to mention its own commitment to international criminal law and justice; the abstraction of cosmopolitan references can be compensated by local moorings; and the idiosyncrasy of local desire can be offset by the universalism of cosmopolitan horizons. In that respect, it only makes sense to speak of constituencies in the plural, because each constituency in a sense compensates for the inherent weaknesses of the others.

Yet, if the ICC can only have its way by successively mobilising a series of constituencies that are inherently in tension with each other, what remains is the feeling that the Court’s ultimate constituency is nothing but itself. The ‘absent sovereign’, then, is not any of international criminal justice’s many constituencies (not even victims), but the agent that is capable of articulating the successive prominence and effacement of these constituencies. The ICC itself is a leading contender for that role and this chapter has shown that it is capable of deploying the rhetoric of constituency in highly sophisticated ways. Ultimately, ‘humanity’, ‘civil society’, ‘state parties’, ‘societies’, ‘communities’ or ‘the international community’ are all signifiers that international criminal tribunals invoke for their own ends.

2 Justice civilisatrice? The ICC, post-colonial theory, and faces of ‘the local’

Carsten Stahn
Introduction

In past decades, local-based approaches have gained increased attention in humanitarian action. The focus on ‘the local’ is a natural counterpoint to internationalism and globalisation in international affairs. Its ambiguity is its strength. There is no unified local. ‘The local’ has many faces. Depending on context, ‘the local’ may mean a country, a community, a group, a neighbour and so on. In contemporary discourse, the notion of ‘the local’ is mostly used as a structural argument. It is popular in the field of development, where the notion of ‘local ownership’ became a central concept to reduce the divide between external interference and domestic capacity in development action.Footnote 1 ‘Local ownership’ was initially associated with ‘national ownership’.Footnote 2 Its meaning has evolved over time. It has been associated with broader policy objectives governing interaction of stakeholders, such as inclusiveness, consultation and participation of domestic political, social and community actors in processes of transition and emancipatory rationales.Footnote 3 After the Brahimi Report,Footnote 4 ‘local ownership’ became a key component of UN peacebuilding and transitional justice doctrine.Footnote 5 The need to pay greater attention to local priorities was presented as one of the ‘lessons learned’ from the shortcomings of multidimensional peace operations in the seminal 2004 report of the UN Secretary-General on the Rule of Law and Transitional Justice.Footnote 6 The concept was meant to mitigate certain criticisms of liberal peacebuilding (e.g., paternalism, norm entrepreneurship, lack of sustainable ‘exit’ strategiesFootnote 7), and leave space for context-sensitive justice responses (e.g., hybrid courts, community-based reconciliation).Footnote 8 But it remained underdeveloped conceptually,Footnote 9 and has been subject to various critiques (e.g., indeterminacy, circularity). It provides a discursive space to a accommodate divide between ‘inside’ and ‘outside’ in the struggle over political authority and legitimacy.

In other fields, ‘the local’ has developed into a lens to analyse and evaluate action and to critically study its effects. Local interests and perceptions have gained greater importance in the fields of transitional justice,Footnote 10 restorative justiceFootnote 11 and peacebuilding,Footnote 12 and perception-based research more generally.Footnote 13 In these contexts, ‘the local’ provides a counter-perspective or reaction to top-down approaches and processes of bureaucratisation and technocratisation in humanitarian action, such as mainstreaming,Footnote 14 programming, packaging and so on. The local perspective places greater emphasis on narratives, experience, empathy and perception of international action. It enquires how such action affects local collectivities or individuals, and how it is perceived. This focus on ‘the local’ may serve as a parameter to consider the legitimacy of an institution, or it may trigger a different vision of goals or success or failure of action.Footnote 15

In international criminal justice, local perspectives have thus far only received limited attention.Footnote 16 Localisation of international justice has been discussed in specific contexts, such as institutional decentralisation,Footnote 17 rule of law reformFootnote 18 or court management (in situ proceedings).Footnote 19 But local approaches are mostly regarded with suspicion from an accountability perspective. They are typically assessed through a universal lens, criticised in light of international standards (e.g., duty to investigate and prosecute, procedural fairness, proportionate sentencing) or accepted as a ‘necessary evil’.Footnote 20 International criminal justice often blends out social realities, since it is predominantly focused on crimes and perpetrators, rather than on the underlying social crisis.Footnote 21 Local effects are sidelined. The Statute of the International Criminal Court (ICC) contains certain balancing factors, through its increased focus on complementarity, victims and reparation. The Kampala Review Conference considered a ‘[t]urning’ of ‘the lens’ on victims and affected communities in the context of its stocktaking exercise.Footnote 22 But this review was centred on narrow institutional dimensions, and is at best still in its infancy. The ICC thus navigates between institutional self-interest (e.g., preservation of institutional autonomy and independence, integrity and efficiency of proceedings) and justification of action through vindication of the rights of ‘others’. Local dimensions are typically considered through a vertical lens, which places the ‘international’ at the centre and uses it as a benchmark against regional, domestic or local responses. Domestic societal concerns are reflected indirectly, namely through the filter of specific institutional goals, such as complementarity,Footnote 23 completionFootnote 24 or procedural mechanisms (victim participation, reparation).Footnote 25

This chapter examines the ‘international/local’ divide in ICC policies and practice. It draws on insights from post-colonial theoryFootnote 26 to discuss the relationship between justice intervention and ownership. It argues that the ICC is vulnerable to some of the dilemmas that other liberal and emancipatory projects face in their engagement with ‘the local’, such as paternalistic and missionary features, perpetuation of structural inequalities or distorting effects of de-localisation.Footnote 27

Engagement with ‘the local’ is based on a fundamental paradox. The ICC defines itself partly in opposition to ‘the local’ in the exercise of its core criminal mandate, and derives justification from this distinction. But it needs local ‘buy in’ and support to realise some of its long-term objectives, that is, to leave a lasting footprint for domestic societies, to ensure that ‘justice is seen to be done’ or to contribute to justice in everyday life. Narratives and representations of ‘the local’ shift in the course of proceedings. While functionalist and utilitarian approaches prevail in the framing of situations and case-related litigation, specific community-based and local perspectives gain some attention in the closure of cases (e.g., reparation) and situations (e.g., exit strategy).

This chapter starts with an examination of the dilemmas of the ICC as an agent. It then discusses different faces of ‘the local’ in the ICC context: (i) ‘the local’ as ‘other’, (ii) ‘the local’ as object, (iii) ‘the local’ as subject and (iv) ‘the local’ as pattern of justification. It shows that ICC justice produces certain forms of influence and domination that bear synergies with dilemmas articulated in post-colonial discourse, that is, centre-periphery divides, artificial constructions of ‘otherness’, disparities of knowledge, logics of imitation and structural dependencies. It cautions against an instrumentalist vision of ‘the local’ that blends out such effects and contradictions.

The ICC and dilemmas of agency

The ICC is an entity with multiple identities. It is partly a judicial actor and partly an executive agent, with certain humanitarian or human rights–related functions. In official discourse, the Court refrains from branding itself as a humanitarian or development actor. Like other agents, the ICC seeks to de-politicise its action. It typically stresses its mandate as independent judicial actor when its role in conflict is discussed.Footnote 28 ICC actions are typically presented under the inconspicuous label of justice. But the judicial nature of activities does not absolve the Court from tensions of protectionism and agency that are inherent in its mandate.

ICC justice and protection

As highlighted later in this volume by Kamari ClarkeFootnote 29 and Sara Kendall,Footnote 30 the exercise of justice has certain transformative features that share synergies with other articulations of power in the humanitarian space.Footnote 31 ICC interventions differ from classical humanitarian action.Footnote 32 This distinction is reflected in Pictet’s famous dictum that one cannot be a champion of ‘charity’ (compassion) and ‘justice’ at the same time.Footnote 33 It applies to a certain extent to the ICC. ICC action is selective by nature and geared to take side for a specific cause, namely to combat ‘impunity’. It is justified by legal obligation, rather than empathy, and aimed at providing judgment on violations. But as Clarke and Kendall show later in this volume, ICC interventions are part and parcel of a broader protective movement geared at remedying harm and restoring rights of victims of conflict.

Some of these interventionist features result from the fact that ICC justice is related to global protection schemes, such as the ‘Responsibility to Protect’.Footnote 34 The Court is used as an actor to promote security, prevention or protection and connected to peacebuilding strategies, such as ‘capacity-building’.Footnote 35 ICC engagement is associated with certain transformative goals, such as producing a ‘catalytic’ effect on domestic law reform (e.g., implementing legislation) or institution-building. In human rights discourses, ICC frameworks and definitions are presented as a model for domestic justice, sometimes with a pull towards over-compliance.Footnote 36 The Court is viewed as a saviour for all types of societal problems, ranging from the protection of civilians to electoral politics, as well as for remedying gender biases or specific patterns of victimisation.

The flip side of this trend is rarely investigated. Conflicts with domestic choices are swept aside by formal reliance on state consent. The broader conditions, under which this consent emerged, are rarely critically reflected.Footnote 37 The assumption that the Court can create ‘domestic capacity’ has a patronising quality. This normative embedding makes ICC justice vulnerable to criticisms from different strands of thought, such as Third World Approaches To International Law (TWAIL) critiquesFootnote 38 or humanitarian critiques.Footnote 39 The Court is easily perceived as an entity that serves as an instrument of foreign power, or as a mechanism that markets and exports a cosmopolitan vision of justice.Footnote 40

Some of these tensions are inherent in the Court’s role and mandate. ICC action creates certain relationships of power. The use of crime labels and the choice of sites of intervention produce certain stigmas and narratives. ICC intervention entails certain forms of coercive action, vis-à-vis states, individuals or groups, and certain paternalistic features that are part of protective action. It interferes with the liberty of action of collectivities and individuals, and overrides individual agency in the name of a broader good (e.g., collective values, protection needs and interests of humanity).Footnote 41 In some cases, individual choice is restricted directly through coercion. In other cases, ICC action restricts choice indirectly or gradually, through the use of ‘soft powers’ or incentives that create dependencies. Some of the coercive dimensions or effects may be non-intended, or even unwarranted by the Court.

Court action involves conflicts of agency. The Court needs to satisfy conflicting imperatives. It requires distance from the site of conflict, in order to be perceived as impartial. But it must at the same be sufficiently close to local reality and actors, in order to be able to speak credibly on behalf of others. This dilemma runs through ICC activities, from preliminary examination to judgment. A prime example is the role of intermediaries. The Court requires intermediaries to gather information, carry out outreach or provide public information in countries. But the use of intermediaries enhances risks of misconduct and interference, as demonstrated by Déirdre Clancy later in this volume.Footnote 42 The Court has struggled to accommodate this tension. In the Lubanga case the outsourcing of investigations nearly led to a collapse of the trial, in light of undue witness coaching.Footnote 43 The Court further struggles with mediation problems. They emerge by definition in the operation of victim participation, which forms part of the constituent features of the Court. The Court must give voice to victims (Art. 68 (3) ICC Statute). But it is at the same time required to mediate that voice through representation, in order to be able to run proceedings. The Court is still in search of a model that reconciles individualised recognition of victimhood with the need for collective representation.Footnote 44 In particular those victims who fall outside the scope of charges brought by the prosecutor remain marginalised.Footnote 45

ICC justice poses ethical dilemmas for the relationship between agent and protected subject. ICC intervention creates expectations of help and protection. It derives empathy and support from the idea of humanitarian crisis. But as with other types of crisis response, the responsibility that follows protecting is often neglected. Attention shifts quickly to other sites of crisis. The response remains ICC centred. Little is done to provide continuing protection of witnesses and victims when situations and cases are dropped.Footnote 46 There are no direct forms of accountability between agent and protected subject.

Justice civilisatrice

Many of these problems are not new or unique to the ICC. They have arisen in other contexts, such as decolonisation or development action.Footnote 47 They may not be entirely solvable.Footnote 48 They involve trade-offs whatever choice the Court makes. But it is fundamental to analyse and understand the underlying frictions and risks. Otherwise, ICC practice will reflect binaries and stigmas that may render justice suspect in the eyes of those in whose interests it is carried out.

There is a danger that ICC practice repeats some of the pitfalls that have been associated with internationalism throughout the twentieth century. Traditional discourses of civilisationFootnote 49 have been largely banned from official UN vocabulary in relation to states;Footnote 50 but they re-emerge in different forms today, that is, in the social or political organisation of domestic societies, including societies in transition.Footnote 51 International justice has been associated with narratives of civilisation since its inception. At Nuremberg and Tokyo, international justice was justified in the name of civilisation.Footnote 52 In the heroic pioneering phase of UN ad hoc tribunals, former ICTY president Cassese qualified the project of international criminal law as ‘the only civilized alternative to … desire for revenge’.Footnote 53 Today, there is a fear that international justice may develop into a new benchmark to ‘divide and judge the world’.Footnote 54 Through the push for universality of the Rome Statute and context-neutral mainstreaming, ICC justice may easily turn into a modern form of justice civilisatrice.Footnote 55 This critique is distinct, and in some respects more difficult to discard than the traditional victor’s justice argument,Footnote 56 since it questions the foundations of individual criminal responsibility and its use as global concept.

The ICC differs formally from hegemonic projects of the nineteenth and twentieth centuries, which were grounded in the idea of superiority of Western state authority.Footnote 57 The Court has increasingly countered the perception that it is dependent on the authority of a few powerful states.Footnote 58 It is rather a success of the power of small states in international law and the cardinal role of civil society movements. It particularly empowers the role of individuals as holders of rights against oppression.Footnote 59 In this sense, the project of the ICC reflects a certain democratisation in international relations. The Statute avoids clear lines of hierarchy and domination. The idea that justice rendered by the ICC is superior to other forms of justice was intentionally mitigated by the drafters of the Rome Statute through various mechanisms, such as the choice for complementarity rather than primacy, the lack of a firm statutory legal duty to implement core crimes into domestic jurisdictions (preamble), the conduct and process-based conception of admissibility (Art. 17 and 20), the space left for variety of penalties at the domestic level (Article 80) or the possibility for the Court not to act ‘in the interests of justice’. The Statute is visibly aimed at preserving diversification of legal traditions.Footnote 60 But these ideals are difficult to maintain in practice.

Many of the Court’s first operational steps suggest that ICC practices entail a strong degree of influence and control over domestic choices and a risk to silence alternative approaches. Unlike in colonial projects of the past, this role is not exercised through direct territorial control or formal legal subjugation. It emerges incrementally, through more subtle forms of threats and incentives, and pressures created through informal channels and networks (e.g., multilateral diplomacy, NGOs, institutional interconnectedness). The ICC does not directly proscribe how domestic justice should look like, nor does it have the power to enforce such a vision through regulatory action. But it actively shapes such choices, through narratives, policies and procedures. It translates underlying problems into procedure. In some cases, it steers inequalities inadvertently, not so much through positive action, but rather through inaction. This entrenches fears of double standards and perceptions of injustice that have fuelled discontent.

Certain policies and mechanisms have emancipatory or missionary features. The Rome Statute establishes a treaty-based system of justice. Through its outreach policy, and in particular its projected claim towards universality, the Court has actively sought to push the boundaries of this regime. This is reinforced by efforts in UN practice to mainstream international justice in UN policies.Footnote 61 But little groundwork has been done to substantiate shared communality.Footnote 62 In particular, the promotion of the global ‘fight against impunity’ has taken on certain missionary features. The concept is a double-edged sword. Due to its action-related framing (‘fight’) and its substantive ambiguity, it can be used as a pretext for a government to justify any type of repressive measure (e.g., prosecution of political opponents for corruption), rather than equal prosecution for core crimes. More cynically, appeal to this notion empowers a global justice industry versus grassroots-driven approaches.Footnote 63 It induces pressures of compliance and emergence of justice mechanisms that are oriented towards global priorities.Footnote 64 Coupled with socio-economic incentives, this approach may create strong discrepancies between ‘ordinary’ justice and elitist international justice regimes – which ultimately run counter to the objective of effective and long-term justice enforcement. A too close alignment of the ICC with the global ‘impunity’ movement may thus create frictions with statutory objectives. As noted in critical scholarship, there is a risk that the expansion of the ICC as global accountability project may effectively narrow or reduce, rather than broaden, the options of justice.Footnote 65

Moreover, the de-contextualisation of social reality through criminal procedures produces certain frictions. It focuses on ‘the local’ predominantly as a site of conflict, evil and violence. This creates a particular stigma that may perpetuate sentiments of inferiority and exclusion.Footnote 66 This dilemma is reinforced by the selectivity of ICC justice. The ICC is focused on mass atrocity and leadership responsibility, which foster certain asymmetries. The broader influence of economic and political policies of Western leaders and corporations on conflict is rarely explored.Footnote 67 The failure to address these underlying factors may ultimately constrain the effectiveness of international justice.Footnote 68 It also stands in contrast with the premise to prevent atrocities. In many contemporary conflicts, violence does not emanate from state power, but from non-state armed groups that challenge state authority, governance and territorial control through externally backed force and popular appeal. Blending out the external influences on conflict fails to address underlying problems, such as the emergence of illicit power structures or recourse to violence.Footnote 69

Some of the weaknesses are illustrated by the rhetoric in relation to the ICC’s engagement in Africa.Footnote 70 In 2005, Sudan employed a critical position that had been developed elsewhere by TWAIL scholars to oppose ICC action. It rejected the referral of the Security Council to the Court inter alia on the ground that

the [International] Criminal was originally intended for developing and weak States, and that it is a tool for the exercise of the culture of superiority and to impose cultural superiority. It is a tool for those who believe that they have a monopoly on virtues on this world, rife with injustice and tyranny.Footnote 71

These points later were later echoed by Jean Ping, former president of the Commission of the African Union, who argued that the ICC is discriminatory since it focuses on Africa and disregards crimes perpetrated by ‘Western powers’ in states such as Iraq, Afghanistan and Pakistan.Footnote 72

These statements must be read with some caution.Footnote 73 They are (i) over-assertive in their assumption of discriminatory intent, guided by specific geo-strategic motives, and (ii) reductionist in their presentation of non-Western (e.g., African) views, which differ considerably. Criticising the Court for geographical discrimination in selection strategy is only a slogan version of a more sophisticated post-colonial critique. The core of the argument goes deeper. It lies in deeper structural factors underlying the reach and orientation of international criminal justice and contested impact and effects of international courts and tribunals, such as marginalisation of claims, perpetuation of inequalities or, at worst, the validation of injustice. It is these factors that merit closer analysis.

The ‘international/local’ lens provides an important perspective to analyse and unpack these risks and divides. As noted before, ICC practice is built on a paradox. In its own discourse, the Court relies on complementarity, integrative procedures and dialogue with ‘local’ actors, in order to mitigate concerns of justice export or imposition. All organs of the Court seek to avoid that the ICC is perceived as ‘gentle civilizer’ of justice systems. But the institutional architecture of the Court, and the framing of cases, creates a drive for de-contextualisation, and homogenisation that stands in contrast to this imperative. It embraces a functional logic, with different narratives and representations of ‘the local’.

Us vs. them: ‘the local’ as other

The ICC is vulnerable to arguments of division and exclusion,Footnote 74 since it tends to encourage abstractions and certain binary visions of justice. Although the Court seeks to mitigate divides (‘us vs. them’) through dialogue and certain managerial techniques (e.g., outreach and prospects of local proceedingsFootnote 75), it requires a certain distance to ‘the local’. This distinction emerges incrementally through proceedings, namely analysis and judicialisation, which rely on abstraction and fiction.Footnote 76

Periphery vs. centre

The ‘us vs. them’ divide is rooted in deeper frictions relating to the relationship between periphery and centre.Footnote 77 Formally, the ICC is a treaty regime, based on consent. Unlike other global order treaties, such as the UN Charter,Footnote 78 it does not contain an express universalising mandate. But willingly or unwillingly, the Court is frequently moved to the heart of the accountability debate, be it for strategic, activist or apologetic reasons. Where the Court is not taking this role on its motion, it is placed into this position by other actors who pursue specific rationales and interests (e.g., states who associate certain benefits with ICC activity, civil society actors or, at times, the Security Council). The ICC is thus put at the centre of accountability strategies. This move is driven by an urge for immediate response. But it neglects underlying tensions. The ICC is put ‘at the forefront of the fight against impunity’, although it is ‘not … necessarily the most liberal regime of criminal justice’.Footnote 79

The ICC regime is ab initio built on a certain structural inequality.Footnote 80 ICC jurisdiction is geared at atrocity violence. The statutory mandate steers ICC action towards intervention in fragile conflict and post-conflict settings. These crimes are less likely to occur in stabilised societies. When they are committed by major Western powers, they often occur in the context of protective or military action in foreign states. The ICC as such is neither the source (i.e. the cause) of this discrepancy, nor does it apply unequal standards per se. But ICC intervention may entrench existing divides, that is, consolidate or create deeper distinctions between developed and less developed states. In cases where the Court does not act, the model of justice that it represents may be seen as unduly limited in choice.Footnote 81 These dynamics are at the heart of discontents voiced against ICC justice.

Once the ICC machinery is brought into action, it tends to portray conflict in specific categorisations. ICC procedures involve choices of prioritisation and distinction to separate sites of intervention from sites of inaction. This operation entails a (i) move towards centralisation of justice and (ii) a process of abstraction that simplifies and reconstructs social reality. Both processes create a distance between the ICC and ‘the local’. Court action becomes essentially an engagement with the ‘other’. This opens ICC justice to a range of critiques that have been articulated against other international judicial mechanisms, such as (i) marginalisation of claims, (ii) de-contextualised knowledge production, (iii) perpetuation of structural inequalities or (iv) even validation of outcomes that are perceived as ‘unjust’ locally.Footnote 82

Centralising features of ICC action

The Rome Statute was meant to create a greater space for domestic justice options. But the existence of the Court as justice mechanism centralises justice discourse to the detriment of other approaches to mass conflict. There is a stark contradiction between reality and perception. Although the Court’s institutional capabilities are limited, the role of the ICC is often regarded as central. This centralisation is not necessarily driven by the Court itself, but rather by the movement behind it. As noted by Adam Branch:

there is a vast regime of institutions and organizations engaged in a massive pedagogical project trying to build support for the ICC as the exclusive arbiter of global justice. It is precisely through the ICC’s mechanisms for victims’ ‘participation’ and ‘empowerment’ that the Court restricts people’s concepts of injustice and justice to those provided by the ICC and thus to put entire forms of domination, violence, and inequality beyond the scope of justice.Footnote 83

There is a thus certain irony in the way in which centralisation operates. It may even occur against the Court’s will.

When the ICC itself takes action, it applies certain formal lenses that shape its focus of enquiry. Patterns of conflict are first of all analysed in terms of jurisdictional parameters. This logic requires the Court to look at local reality through an abstract lens, namely territoriality or nationality.Footnote 84 Both concepts are tied to the state. This lens creates a rift between the ICC and ‘the local’. The latter is categorised, if not subsumed, by affiliation to the state. Local culture and identity are largely blended out. The relationship between the ‘international’ and the ‘national’ forms the focus of enquiry.

Where justice choices are contested, this contestation remains largely dependent on the state. Both states and defendants can challenge the admissibility of proceedings.Footnote 85 But the ultimate choice on the forum of justice is made on the basis of the action, will and capacity of the state, as determined by the Court.Footnote 86 ‘The local’ is thus essentially treated as the ‘national’. Local issues are subsumed into national processes. If a state is unwilling or unable to act, an individual defendant cannot reverse ICC engagement.

When investigation starts, the focus shifts quickly to the other end of the spectrum, namely the individual. ICC investigations and prosecutions are predominantly concerned with determination of individual criminal responsibility. This focus has particular attraction. It prevents formal assignment of responsibility to collectivities, such as whole ethnic and religious groups. This may ultimately prevent resentment, hatred and frustration caused by feelings of collective guilt. But it also has downsides. The turn to individual responsibility makes it more difficult to capture structural dimensions of violence. It privileges punishment of individuals over enquiry into the causes of atrocity.Footnote 87 The role of collectivities and groups is brought in through quantitative and qualitative nexus assessment in the context of contextual elements of crimes or linkage factors. But it is examined through the perspective of individual responsibility. One of the dangers of a strict focus on individualised guilt in institutional responses is that it ‘may contribute to a myth of collective innocence’.Footnote 88

Collectivities as such rarely have a voice; their interests are typically mediated. They are mainly reflected in collective forms of victim representationFootnote 89 or indirectly in prosecutorial strategies, namely in determinations whether individual cases represent major patterns of victimisation in conflict or the role and involvement of groups in crimes. One direct option for consideration of community interests is the ‘interest of justice’ clause under Article 53 of the Rome Statute.Footnote 90 It is framed in negative terms. It allows the ICC to take a decision not to proceed ‘in the interests of justice’. This clause provides an entry point for consideration of local justice approaches. Consideration of the ‘interests of justice’ involves enquiry into the interests of victims (Article 53 (1)(c)). In its policies, the Office of the Prosecutor (OTP) has presented this provision as a means to conduct a ‘dialogue’ with victims and representatives of local communities.Footnote 91 In the first ICC situations (e.g., Uganda and Democratic Republic of Congo), the OTP has formally engaged a wide range of actors in this discourse, namely intermediaries and ‘local leaders (religious, politically, tribal)’, as well as ‘other states, local and international intergovernmental and nongovernmental organizations’.Footnote 92

This methodology is slightly contradictory. The openness towards consultation and local input seems to suggest that ICC justice can be negotiated. But the normative space for dialogue is in fact very limited. In its 2007 Policy Paper, the OTP has made it very clear that there is a ‘presumption in favour of investigation or prosecution’ under the Statute, and that the Prosecutor would use Article 53 ‘only in exceptional circumstances’.Footnote 93 The office used a rather authoritative rhetoric to justify this approach. It denied freedom of choice, arguing that:

a new legal framework has emerged and this framework necessarily impacts on conflict management efforts. The issue is no longer about whether we agree or disagree with the pursuit of justice in moral or practical terms: it is the law.Footnote 94

This argument leaves hardly any room for contest and persuasion, since it implies that there can be no ‘neutral’ debate on the issue of accountability. The OTP conceded in a footnote that the concept of ‘justice’ in Article 53 ‘must be broader than criminal justice’.Footnote 95 But it failed to acknowledge that ‘other forms of justice decided at the local level’ could serve as a bar to ICC proceedings under Article 53. It merely stated the need for a ‘comprehensive approach’ under which ICC justice and local justice mechanisms are ‘as complementary as possible’.Footnote 96 These statements are framed in the language of legal pluralism. But they have an underlying centralising effect on justice discourse. They divide the world into an accountability universe of the ICC (‘us’), and a parallel system of ‘other forms of justice’, pursued locally (‘them’). This juxtaposition itself has strong effects on conflict dynamics. It presents ICC justice as idealised framework of reference. ICC policy remains strongly one-directional. As has been rightly suggested by Priscilla Hayner, ‘[w]hat may be missing is a process by which the prosecutor could more comfortably evaluate the likely impact and timing of her actions in each different national context.’Footnote 97

De-localisation and social engineering

ICC proceedings entail a significant degree of de-localisation and social engineering. This process occurs incrementally, in multiple segmented steps. It involves different steps: dislocation, disaggregation, translation and reconstruction. The steps are shaped by different filters applied in the analysis.

Methods

Like other criminal tribunals, the ICC analyses historical events mainly through the lens of crimes.Footnote 98 Historical context informs the contextual elements of crimes or narratives of conflict in pleadings. In proceedings, facts and events are filtered through the rationality of the law. The legal process seeks to bring order into chaos. It is geared at clarifying and simplifying social reality. It relates facts, conduct and events to legal concepts and tangible normative constructs. It analyses human conduct through certain ordering structures, hierarchies and chains of causation, and it uses constructed knowledge and fictions to fill gaps.Footnote 99

Typically, domestic conflict and violence are branded in specific language and judicial vocabulary. Atrocities are translated into crimes labels that form part of the ICC’s jurisdiction. The very use of these labels might influence dynamics. Specific incidents and patterns of victimisation serve as a sample for enquiry. This is followed by (i) the framing of the situation that forms the subject of enquiry (preliminary examination), (ii) the initiation of international investigation and prosecutions, (iii) the shaping and identification of the identity of the ‘case’ and (iv) recognition of specific victims through the regime of victim participation. In this context, social reality is disaggregated, and then reconstructed, based on evidence available.

This process involves friction, and at times contradiction, with domestic narratives. There is a certain virtue and necessity for the ICC to override domestic articulations and justification of conduct. As argued by Damaška, a message appropriate orbi need not be appropriate urbi:

Circumstances exist in which global horizons of concern clearly should prevail. International judges should not be swayed by hostile local responses to their decisions if they are generated by values or attitudes whose transcendence is the pedagogic aim of international criminal justice.Footnote 100

At pre-trial as well as at trial, this information is presented through the lens of multiple agents that pursue different, and sometimes conflicting, interests (prosecution, defence, victims, judges, state representatives, NGOs, etc.). This culminates in different narratives.

Each of these steps (dislocation, disaggregation, translation and reconstruction) involves a certain degree of de-localisation. It entails multiple layers of abstraction and knowledge production, geared at providing judgment. The process of judicialisation rationalises the view on facts and conduct. But it also entails risks and negative side effects.

Global/local dilemmas

De-localisation creates certain structural paradoxes from the perspective of the goals of justice. In the eyes of ‘the local’, the very trial of perpetrators in The Hague may not be seen as punishment but as a reward. The ICC is bound by higher human rights standards than certain domestic jurisdictions. The ICC might thus appear as ‘justice light’ in terms of punishment and sentencing in comparison to domestic proceedings. This paradox became apparent in the context of Rule 11bis proceedings at the ad hoc tribunals where some of the defendants pleaded that they were high-level, rather than medium- or low-level, perpetrators, in order to be tried in The Hague rather than locally.Footnote 101 Similar claims were made in the ICC context. In the Libyan situation, Saif Al-Islam Gaddafi and Abdullah Al-Senussi expressly requested surrender to the Court.Footnote 102 The Gaddafi Defence supported ICC admissibility, arguing that ‘[j]ustice [would] not be served by domestic proceedings’, since they are ‘so ineliminably tainted by violations of domestic law that … proceedings will go down in history as a manipulated spectacle of victor’s revenge’.Footnote 103 The Al-Senussi Defence adopted a similar line, invoking ‘recognised standards of due process under international law’.Footnote 104 In both cases, the preference for ICC justice over ‘local’ trials was visibly shaped by the absence of the death penalty in ICC sentencing.

Second, de-localisation produces certain tensions in relation to knowledge production. A judicialised way of reading conflict may produce re-constructions of reality that are at odds with local perspectives. One particular problem is the representation of the role of non-state actors. In many contexts where atrocity crimes occur, the state is at best one among many actors influencing people’s lives. International criminal justice goes beyond the state-centric logic of general international law or peacebuilding strategies, by highlighting accountability of non-state actors in both classical civil war contexts and conflicts between opposing armed groups. But it struggles with a representation of non-state violence. It uses certain social ideal types (i.e., ideas of organisation, formation of plan and policy, use of command) to categorise this violence, which may not always offer a proper fit. The underlying picture is often constructed through mediated knowledge, that is, information from states, NGOs or international organisations that have a normative interest in the use of specific labels and their connotations.

At the ICC, these epistemological dilemmas became evident in the Katanga case.Footnote 105 The judgment rested on the theory that Katanga contributed to a campaign by Ngiti fighters to ‘wipe out’ out the village of Bogoro and its Hema population, since it occupied a strategic position for the Union des patriotes congolais (UPC) in the Ituri conflict.Footnote 106 But key foundations of this theory, such as the concept of ‘militia’, ethnic foundations or an ‘alleged anti-Hema ideology’, remained underdeveloped. The weaknesses were outlined in the Minority Opinion of Judge Christine van den Wyngaert. Van den Wyngaert questioned key categorisations of organisational violence. She argued that the judgment failed to explain ‘with any level of precision how the so-called militia of the Ngiti fighters of Walendu-Bindi was structured or how it supposedly operated’,Footnote 107 or ‘how and when the “thousands” of individual members of the Ngiti fighters of Walendu-Bindi would have adopted the alleged common purpose to attack the Hema civilian population’.Footnote 108 She claimed that ‘so little is known about how, when and by whom most of the crimes against civilians were actually carried out that it is totally impossible to form any opinion about the systematic nature of it’.Footnote 109

Her critique attacks the trend to present and construe the world through pre-fabricated legal constructs. Van den Wyngaert cautions against the risks of undue categorisation and oversimplification, including the ‘danger of treating entire populations, or vast categories within a population, as abstract entities with a mind of their own’.Footnote 110 Her argument goes to the heart of the limits and risks of global knowledge production in a judicial context:

it is factually wrong to reduce this case, and especially the reasons of the different Ngiti fighters and commanders for participating in the operation against the UPC, to ethnic fear and/or hatred. Such oversimplification may fit nicely within a particular conception of how certain groups of people behave in certain parts of the world, but I fear it grossly misrepresents reality, which is far more complex. It also implicitly absolves others from responsibility.Footnote 111

Ultimately, such reliance on social ideal types might produce narratives that are seen as perpetuating injustice at the local level.Footnote 112

Third, de-localisation entrenches certain knowledge disparities. In post-colonial and critical scholarship, global institutionalism is often criticised for its technocratisation and bureaucratisation, that is, the application of standardised or self-serving decision-making processes or forms of organisation to complex societal structures.Footnote 113 This critique applies in a different form to judicialisation. When a case is pursued before the ICC, it triggers a multiplicity of judicial decisions and motions. The sheer amount of materials created through pleadings and proceedings makes it very hard to follow the case. The Court speaks to some extent in its own language. ICC proceedings introduce specific vocabulary and technical procedures that are often difficult to understand by outsiders. Various organs of the Court represent different voices, while differences between procedures and the justification of certain judicial outcomes are not always clear. This creates risks of misrepresentation and misunderstanding that cannot be solved by mere translation and interpretation.Footnote 114 It also has certain disempowering effects. It ultimately implies that knowledge, expertise and professionalisation relating to the adjudication of international crimes develop mostly internationally, rather than domestically or locally.Footnote 115 This creates a vicious cycle. It fosters a spin towards a monopolisation of justice that forecloses local input and might remain unresponsive to local needs and particularities.

‘The local’ as object

Although the ICC Statute is systemically open to pluralism, the functioning of the Court remains self-centric. ‘The local’ is predominantly an object. ICC practice does not repeat stereotyped versions of civilising discourse as reflected in the Covenant of the League of Nations or Article 38 of the ICJ Statute, that is, formal distinctions between advanced and primitive nations as well as between the civilised and the savage.Footnote 116 Access to the Rome Statute is not subject to a determination of the ability and standards of a domestic system. The Statute avoids formal claims of superiority over domestic justice.Footnote 117 It is also less vertical than other international justice mechanisms (e.g., the ‘primacy’-based ad hoc tribunals).Footnote 118 It does not impose clear-cut substantive justice standards. It judges domestic action in terms of processes and outcomes. But it represents an instrumentalist logic that exposes the Court to similar criticisms as other ‘global governance’ actors. ICC action has caused resentment since it entails features of disempowerment and emancipatory rationales. Two factors are of key importance in this regard: (i) the ICC regime fosters a (re-)orientation of the domestic realm towards the international, and (ii) it pushes certain forms of emancipation and dependency.

Marginalising choice

The mandate of the Court is geared at limiting choice. This is inherent in its mandate of ensuring accountability that prioritises legal justice. There is widespread agreement on the underlying rationale of accountability. But the way it is implemented has given rise to concern.

There is a fear that ICC policies marginalise domestic agency and foster ICC-centric imitation.Footnote 119 The principle of complementarity offers a basic choice that is now largely uncontested in international justice: A state must either investigate or prosecute crimes, or leave space for another forum to take action if it fails to do so. This can be either the ICC or another state (‘horizontal complementarity’). This commitment itself is rarely challenged on ideological grounds.Footnote 120 But its application has come under criticism.

The ICC has adopted a rather strict approach towards the required degree of symmetry between domestic and ICC action. The ‘case’ before the ICC serves as main point of comparison. States must adjust their criminal strategy to this focus of enquiry and model their own action after ICC proceedings, in order to be able to challenge admissibility successfully.Footnote 121 It is this structural dependency that causes unease from a critical perspective. The very idea that a state must construct its accountability approach after a pre-set international case policy evokes certain parallels to historical critiques of international justice.Footnote 122 At Tokyo, the Indian judge Pal famously branded the trial as an imperial project by Allied Powers,Footnote 123 geared at creating ‘an international legal community in their own image’.Footnote 124 The ICC glanced over these sensitivities. It expressly used the ‘mirror’ imagery to determine complementarity. It held that admissibility requires a ‘judicial assessment of whether the case that the State is investigating sufficiently mirrors the one that the Prosecutor is investigating’.Footnote 125

This language is unfortunate. It evokes fears that complementarity is a concept with missionary features, geared at domestic replication.Footnote 126 In its jurisprudence, the Court accepted that domestic investigations and prosecutions must not necessarily use the same crime labels as the ICC.Footnote 127 But it restricted flexibility through an ‘incident’-specific interpretation of the ‘sameness’ of the case. It held that it is ‘hard to envisage a situation in which the Prosecutor and a State can be said to be investigating the same case in circumstances in which they are not investigating any of the same underlying incidents’.Footnote 128 This leaves de facto limited space for deviation.

The strict focus on congruence between the ICC and the domestic case has critical repercussions. It has been vividly challenged by Kenya and Libya. Kenya argued that this symmetry approach leaves virtually no prospects for domestic justice, ‘since a national jurisdiction may not always have the same evidence available as the Prosecutor and therefore may not be investigating the same suspects as the Court’.Footnote 129 Libya submitted that it conflicts with the need to ‘[empower] national jurisdictions in challenging transitional situations’.Footnote 130

Existing jurisprudence runs the risk of entrenching inequalities in international society, that is, differences between developed and developing states and between stable and unstable democracies. It makes it even harder for conflict-torn societies to take justice in their own hands. It provides limited weight to a more cooperative-oriented approach towards justice, that is, the idea that ‘the overall goal of the Statute to combat impunity can also be achieved by the Court through means of active cooperation with the domestic authorities’.Footnote 131 This contradiction has been aptly identified by Judge Ušacka:

Instead of complementing each other, the relationship between the Court and the State would be competitive … such an approach could potentially preclude a State from focusing its investigations on a wider scope of activities and could even have the perverse effect of encouraging that State to investigate only the narrower case selected by the Prosecutor.Footnote 132

Ultimately, a strict admissibility jurisprudence might deprive a domestic society from an indigenous process of trial and error.

Ethics of emancipation

A second dilemma in the agent-object relationship relates to the ethics of emancipation. The idea of complementarity as such carries a certain emancipatory impetus. Legally, states are not forced to model their own justice system after the ICC. But the ICC framework provides an incentive for legal adaptation through the ‘unability’ and ‘unwillingness’ exception. States might need to adjust and strengthen their national jurisdiction in order to avoid being found ‘unable’ or ‘unwilling’. Complementarity thus creates incentives for structural reform, such as perfecting the state, encouraging accountability and transparency and strengthening civil society.

These dynamics open the Court to emancipatory dilemmas known from (post-)colonial discourse.Footnote 133 States need to adopt certain international narratives and structural measures in order to gain ‘ownership’ over justice. Practice in some of the first ICC situations (e.g., Uganda, DRC) has shown that the logic of complementarity has certain distorting side effects. As illustrated in this volume by Christian De VosFootnote 134 and Patryk Labuda,Footnote 135 there is a risk that states implement international standards primarily to satisfy international audiences, such as the ICC itself, international donors and NGOs.Footnote 136 External incentives and pressure for quick solutions encourage a move towards targeted institutional responses that satisfy international audiences, but remain exceptional in the domestic context. One example is the creation of the International Crimes Division (ICD), a special division of the High Court of Uganda.Footnote 137 It has had a curious career. It was initially deemed to be part of the comprehensive peace agreement with the Lord’s Resistance Army, but has re-branded itself ‘as a court of “complementarity” with respect to the International Criminal Court’, in order to ‘[fulfill] the principle of complementarity stipulated in the preamble and Article 1 of the Rome Statute’.Footnote 138 It dealt with only one ‘core crimes’ case, the Kwoyelo case.Footnote 139 This case was hampered by controversies between the Constitutional Court and the Supreme Court over the effects of Ugandan amnesty legislation.Footnote 140 When Dominic Ongwen was arrested in 2015, ICD proceedings were not even considered. Nor did the ICD look into violations committed by the Uganda People’s Defence Force. It has thus remained a partly artificial construct, as Stephen Oola’s chapter in this volume examines in greater detail.

In other contexts such as Kenya and Libya, complementarity has triggered an action/response game. Domestic accountability measures were adopted. But they were geared at avoiding ICC intervention, rather than appropriating accountability regimes. For instance, Libya adopted a draft decree, incorporating international crimes into domestic law, and a decree on reparation for victims of sexual violence, in order to strengthen its admissibility challenges.Footnote 141 This is likely to produce artificial results. If states strengthen domestic systems primarily for the sake of adjudicating specific cases domestically, reform efforts are geared towards ICC priorities rather than long-term domestic interests. This adjustment of national systems based on case-related strategic considerations may ultimately run counter to the objective of the Rome Statute, that is, to create a sustainable ‘system of justice’ and replicate failures of development policy (e.g., norm export, legal transplantation).Footnote 142

‘The local’ as subject

The view of ‘the local’ as subject offers a counter-narrative to fears of disempowerment through ICC justice. The ICC embraces this vision. It differs formally from classical emancipatory projects where the interests of ‘the local’ were conveyed through state-based mediaries.Footnote 143 It stands in the tradition of liberal justice, which seeks to counter forms of organisation, domination or submission inherent in the commission of crimes and formal structures supporting their entrenchment in society. As Pablo de Greiff put it:

criminal justice can be interpreted as an attempt to provide recognition to victims by denying the implicit claim of superiority made by the criminal’s behaviour through a sentence that is meant to reaffirm the importance of norms that grant equal rights to all.Footnote 144

ICC justice serves as both a shield for individuals and as a platform to voice the grievances of victims. It recognises the significance and value of persons in a dual capacity: as victims and as holders of rights. Both aspects are typically invoked as progress by supporters of international justice. But they create certain new dilemmas in their approach towards the victim as subject.Footnote 145

Tensions of a rights-based approach

In past decades, there has been a large turn to a rights-based approach towards victims’ claims.Footnote 146 This trend towards individualisation has its origin in the recognition of the rights of victims to an effective remedy.Footnote 147 It has been enshrined in multiple UN documents, such as the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.Footnote 148 It has merits in the domestic adjudication of claims or in civil claims proceedings. But it cannot be transposed in an automatic fashion to international criminal justice. In a criminal process, adjudication of victims’ claims remains an annex function to the process of judgment. This involves a typification of victims’ claims and a certain instrumentalisation of their interests. Judicial action in support of victims is portrayed as an improvement of local interests, but the two do not necessarily coincide. Individualised victim protection does not necessarily correlate with improvement of local conditions and collective interests.

At the ICC, the rights-based approach towards victims entails strong tensions between individual and collective interests. Applications for participation and reparation are individualised.Footnote 149 The Court is mandated to provide significant attention to individualised factors, such as whether ‘personal interests’ of victims are affected by proceedings or individualisation of harm. But adjudication remains closely tied to the nexus to the prosecutor’s case, including choice of perpetrators, incidents and localities and crimes charged (participation), as well as the link to the offender (reparation). This type of litigation may easily increase victim fatigue with the Court, struggles between individuals over identity and group affiliation or feelings of exclusion. In key decisions, that is, the trial judgment or decisions on sentencing and reparation, accountability is expressed towards victims collectively. In many instances, formal recognition of victimhood and expressivist or symbolic justice may be the only realistic prospect of proceedings.Footnote 150 The focus on individual rights and claims in the judicial process stands at odds with this outcome. The Court often struggles to relate this judicial outcome back to individual claims.

The rights-based approach provides a breeding ground for contestation. It may create new forms of hierarchy in the conceptualisation of ‘the local’. The ICC system creates at least three different classes of victims: a broader category of victims whose general victimhood is testified in abstract terms (e.g., victims of situation-related violence), victims of the case (whose status is individualised) and victims entitled to reparation as a result of harm suffered by the convicted person.Footnote 151 This judicialisation of victimhood may cause new grievances among collectivitiesFootnote 152 or forestall a sense of closure with the past. It coincides with different types of benefits. While victims with a sufficient link to the conviction benefit from Court-ordered reparations under Article 75 (i.e. individual reparation, collective reparation or both),Footnote 153 other victims are at best eligible to come within the ambit of the Trust Fund’s ‘assistance mandate’, which is humanitarian in nature.Footnote 154

These tensions became apparent in the debate over the appropriate form of reparations in the Lubanga case. The Trust Fund for Victims argued that

individual [reparations] awards which are dependent on successful applications to participate may not be the most appropriate approach in the present case, given only a small number of victims are currently participating and they are not necessarily representative of the wider group of victims.Footnote 155

It added that ‘community discontent’ with the Trial Chamber’s verdict ‘could lead to former child soldiers and their families to refuse individual awards of reparations due to a fear of reprisals from within their own communities’.Footnote 156 The Trial Chamber sought to reduce such risks by endorsing ‘a community-based approach’ towards reparations.Footnote 157 This approach was partly reversed by the Appeals Chamber, which noted that any reparation to a community requires the establishment of a sufficient link between the harm suffered by community members and the crimes of the convicted person.Footnote 158

This jurisprudence illustrates the shadow side of a ‘rights-based’ conception of victims. It creates distinctions between ‘privileged’ and ‘less privileged’ victims. This legal categorisation may implicitly fuel claims of superiority among victims, cause resentment on the part of marginalised victims or neglected local groups or even lead to embarrassment by affected victims, as Peter Dixon explores in his contribution to this volume. As one voice put it in the Kenyan context:

I am concern[ed] of what to tell my community. How do I explain that you selected few victims? Many victims will be left aside of this process. Everyone I know would like to have a say in this process.Footnote 159

Archetypes of victimhood

The second danger of the ICC’s approach towards victims as a subject is related to the construction of subjectivity.Footnote 160 In the context of mass atrocity crimes, the victim is rarely regarded as he or she is, but is rather tailored and trimmed to fit certain roles and expectations. Victimhood is shaped by the social patterns of atrocity violence, and then framed and specified by case theory and Court discourses. In this context, personal harm and suffering is of secondary importance. Subjectivity is a means to an end, that is, related to a cause. The individual victim becomes to some extent a ‘universalised victim’ that is emblematic of the harm and suffering caused to the international community as a whole.Footnote 161 There is a strong tendency to rely on archetypes of victimhood in order to mobilise empathy and support.

Victimhood becomes part of the identification of the Court.Footnote 162 This process transforms subjectivity and stresses particular narratives and features; there is an element of drama. Charging strategy and expressivist features of ICC justice focus on spectacular events and certain specific categories of victims (e.g., child soldiers, victims of sexual violence), as Kamari Clarke’s work has shown,Footnote 163 rather than victims of everyday violence. There is interest in the ‘victim’ because of its extraordinary position. Victimhood is associated with certain characteristics, such as vulnerability, powerlessness, disadvantages, abuse and fear. This limits the space for contestation and contributes to the perception of justice as a heroic response. Representation of types of violence or policies is often a product of Western culture. It involves a certain degree of voyeurism, that is, viewing the drama of others,Footnote 164 and exhibitionist features. The discourse disregards that the label of victimhood has also certain disempowering effects. Some individuals do not want to be seen as (passive) victims but as individual subjects or agents who overcame atrocities they had suffered.Footnote 165 Cultivating a culture of victimhood is thus not always in the best interest of conflict-affected persons.

Paradoxically, this construction of victimhood has some parallels to the contradictions of guardianship in historical practice.Footnote 166 There is a certain conflation between self-interest and the protected subject. ICC justice promises more equality, freedom and justice through judicial intervention. This cause attracts input from and acceptance of the role of victims, but is partly a means for the Court to maintain its own power.

Us as them: the ‘local’ as pattern of justification

The turn to ‘the local’ as structural justification becomes particularly evident in the context of exit and disengagement strategy. At this stage, ‘them’ turns into ‘us’. The relationship with national jurisdiction(s) and affected communities turns into a central tenet of ICC policy. The Court uses different types of connections to ‘the local’ to validate its mission.

In the context of non-engagement or exit from situations, considerable emphasis is placed on synergies between ICC intervention and the strengthening of domestic jurisdictions. Complementarity forms a main postulate of disengagement strategy. This transforms the perspective towards ‘the local’. ‘National ownership’ becomes an important justification of ICC justice.

This lens is reflected in the Court’s strategy towards ‘Completion of ICC activities in a situation country’.Footnote 167 The strategy differentiates between ‘completion’, that is, progressive conclusion of investigative, prosecutorial and judicial activities,Footnote 168 and ‘legacy’. This involves ‘long-term post-completion projects, which begin prior to the institution’s closure, such as outreach and institutional and capacity-building efforts, aimed at leaving a lasting positive impact on affected communities and their criminal justice systems’.Footnote 169

Underlying policies reflect some of the transformative ethos of the ICC. Completion involves ‘assessments of what assistance is needed to enable the relevant country’s judicial system to handle any residual issues could be seen part of the exit strategies’.Footnote 170 Completion is treated in connection with the goal of ‘legacy’, which is defined by the Court as ‘lasting impact on bolstering the rule of law in a particular society, by conducting effective trials to contribute to ending impunity, while also strengthening domestic judicial capacity’.Footnote 171

The Court’s legacy vision is centred on global implications and virtual symmetry between the ICC and domestic jurisdiction.Footnote 172 It imagines a natural continuum between ICC action and domestic action according to which ‘national authorities should already be fully ready to pick up and effectively continue work’, when ‘the Court is exiting a given country’.Footnote 173 It operates on the premise that there are ‘gaps’ between international and domestic justice that can be filled through ‘capacity building initiatives’.Footnote 174 It relies on consultationFootnote 175 and the ‘willingness of a given State’Footnote 176 to address this vacuum. But it says very little about what ‘national ownership’ would entail.

Success or failure of cases is often explained with a reference to an ‘ideal type’ of victim. The focus shifts between ‘global’ and ‘local’ victims. Reference is made to the ‘global’ in order to mobilise sympathy and appeal. For instance, in Lubanga the OTP used ‘the global child’ as archetype. It defended the relatively low sentence of fourteen years as ‘a symbol of hope’ and ‘an important step towards bringing an end to the suffering of tens of thousands of children still forced to fight, to kill and to die in conflicts around the world’.Footnote 177 An even broader notion of ‘global victim’ was used in order to limit concern about inaction in relation to ISIS.Footnote 178 The OTP emphasised ‘our collective duty as a global community to respond to the plight of victims whose rights and dignity have been violated’.Footnote 179 Here, ‘us’ and ‘them’ appear to have merged.

Divisive actions or outcomes are often defended with reference to an ideal type of ‘local victim’. This strategy was particularly visible in the Katanga and Ndgudjolo Chui cases. When the Appeals Chamber confirmed Ndgudjolo Chui’s acquittal, the OTP defended ICC proceedings by the abstract recognition of victimhood relating to the Bogoro attack. It noted that ‘[t]he decision does not negate the fact that crimes were committed in Bogoro or the suffering of the victims’ in order to limit hostile local response.Footnote 180 In Katanga, the OTP used the interests of victims as pattern of justification for the withdrawal of the appeal against the judgment. It justified agreement with the Defence on the ground that ‘Germain Katanga has […] played a part in addressing the need for accountability and justice as expressed by the victims’, by ‘acknowledging his participation in these crimes and in expressing his regret’.Footnote 181 The alleged interests of ‘local victim’ served as justification to mitigate criticism concerning the outcome of the judgment, that is, the thin basis of conviction and evidentiary problems regarding sexual and gender-based charges.Footnote 182 A similar strategy was invoked to explain the end of proceedings against Kenyatta. The Prosecutor noted:

the hurdles we have encountered … delayed and frustrated the course of justice for the victims in this case … it is my firm belief that today’s decision is not the last word on justice and accountability for the crimes that were inflicted on the people of Kenya in 2007 and 2008.Footnote 183

This strategy illustrates the instrumentalist use of the ‘the local’ in ICC practice. The ICC is sold as a project for ‘locals’. But there is hardly meaningful engagement with ‘the local’. The ‘local’ is portrayed in a one-dimensional way, namely through the lens of the ICC. In its own discourse, the Court uses ideal types of ‘victims’ and ‘locals’, that is, those who cannot protest, as illustrated by Laurel Fletcher’s analysis of the ‘abstract victim’ in this volume.Footnote 184

Protection of ‘the local’ is a driving factor for ICC action. But what comes after ICC intervention is often less important. Victims are easily dropped after the end of the case. There is limited aftercare or psychosocial support. This burden is shifted back to the ‘national’, the ‘local community’ or the family. General assistance is outsourced to the non-judicial mandate of the Trust Fund, which is limited in scope.Footnote 185

Conclusions

Civilising discourse has been part of international justice since its inception. It is a double-edged sword. It is used to glorify international action or to discredit it. The ICC is sometimes unfairly equated to an imperial project. It is in many ways an antidote to classical imperial or colonial forms of domination and subordination. But it raises equality and justice dilemmas that cannot merely be swept aside by reference to its noble cause. They do not arise in the form of traditional hierarchies or emancipatory claims relating to all spectrums of life (‘mission civilisatrice’), but in a novel and more subtle way. Post-colonial theory, and its critique of constructed subjectivity, emancipation, asymmetric power and inequality,Footnote 186 provides a lens to reflect on these tensions, including the relationship between the ICC and ‘the local’.

ICC justice offers protection against abuse and oppression, but it also involves assertion of power. This power might not always be directly perceived or experienced as coercive.Footnote 187 It is often exercised with some form of consent, or through soft, informal or indirect means. But it creates similar fears as other global institutions (e.g., international financial institutions, administrative standard-setting bodies). ICC actions and procedures create certain effects that divide and shape the world. While seeking to protect individuals from mass atrocity crime, they create new forms of international ‘ownership’, that is, ownership over narratives, knowledge production or branding of ‘otherness’, and structural dependencies. This occurs incrementally, that is, through practice.

Categorisations and notions used in the process of rendering justice produce certain binaries and distinctions that are easily perceived as stigma. For instance, the unreflected use of concepts, such as ‘complementarity’ or ‘capacity-building’, may steer distinctions between the ‘able’ and the ‘unable’, the ‘knowing’ and the ‘unknowing’, the ‘progressive’ and the ‘regressive’ and so on. This has disempowering effects. Similar tensions arise in relation to the use of the notion of victims. This label may have certain patronising implications for affected groups or individuals. It evokes images of vulnerability and passivity that may not always coincide with social reality or self-perception.

Moreover, there is an implicit risk that ICC interventions may encourage certain forms of justice that do ‘not come from within’, but are externally driven. Practices such as the strict application of the admissibility test and the use of the ‘mirroring’ imagery produce action/response schemes that may stifle or weaken domestic justice. They incentivise domestic responses that are geared and construed to meet short-term policy objectives of the ICC, or serve as encouragement to dump the burden of investigations and prosecutions on the Court. Both approaches stifle creativity.

The ‘local’ as structural argument provides a certain counter-perspective to such tendencies. It highlights that social reality is more complex, and often more messy, than articulated in the language of law and justice. The ‘local’ is a concept with many faces. It forces the ICC to look at very different spectrums of its interventions, that is, regional implications; impact on states; effects on communities, groups, individuals; and so on. It thus provides a necessary balance to the mainstreaming of international justice in institutional politics. It implies that the benefits of ICC justice cannot be taken for granted, but must be constantly articulated, assessed and re-adjusted, if necessary.

Some of the paternalising and disempowering features of ICC justice cannot be solved. But they might be handled more constructively, with closer consideration of the faces of ‘the local’. The ICC may legitimately override domestic preferences, or present alternative narratives or choices in specific contexts. But structurally, ‘the local’ is more than a means to an end.

Many of the complex historical and social realities of conflicts cannot be understood through short-term intervention. There is a need for deeper engagement with locality in ICC practice. This is crucial in the early part of proceedings, for example, as part of preliminary examination analysis, investigation and the framing of the case, rather than merely at trial (e.g., in situ hearings) or in the reparation phase. Initiatives to re-connect to the ‘local’ through field presences or outreach are likely to have limited impact, once the ICC case has been detached too far from local societies.

Where ICC action discards domestic or local interests, such action should be adequately reasoned and explained.Footnote 188 Its acceptance may depend on a number of factors: the way in which it was formed and conveyed; its grounding in knowledge and expertise, including local and regional expertise (rather than the presumptive superiority of ‘the international’); and its verification and openness to challenge.

Finally, more attention needs to be paid to the negative or unintended side effects of ICC interventions, including the potential inequalities and injustices they produce. Among other things, this requires sensitivity to the forms of power and dependencies created through ICC action, attention to the injustices of inaction and caution in the use of the notion of victim. Existing contradictions will be less striking if the ICC shows greater responsibility towards its objects of care. It is these features that need to be addressed to counter fears of justice civilisatrice.

3 The global as local The limits and possibilities of integrating international and transitional justice

David S. Koller
Introduction

It has become increasingly popular in recent years to focus on the contributions of international criminal courts and tribunals (ICTs) to transitional or post-conflict justice and to assess the impact of ICTs in terms of their ability to promote justice locally in societies undergoing transition or emerging from conflict.Footnote 1 Yet this description only captures part of the story. These very same institutions have also been described as tools of international realpolitik or, in a more nuanced form, what Gerry Simpson calls ‘juridified diplomacy’, which largely serve political rather than legal aims and which generally operate globally rather than locally. In Simpson’s words, ‘juridified diplomacy’ is ‘[t]he phenomenon by which conflict about the purpose and shape of international political life (as well as specific disputes in this realm) is translated into legal doctrine or resolved in legal institutions’.Footnote 2

This chapter elaborates these two competing paradigms of transitional justice and juridified diplomacy and examines the extent to which, and the reasons why, they have been reflected historically in different ICTs. This historical analysis leads to three observations. First, the origins of international criminal law lie firmly within the paradigm of juridified diplomacy and not in that of transitional justice. Second, despite these origins, ICTs have increasingly taken on characteristics that resemble the transitional justice paradigm. Third, and perhaps most surprising, this apparent turn towards transitional justice can to a large extent be explained by reasons grounded in the juridified diplomacy paradigm. On the basis of these conclusions, this chapter explores the possibility and desirability of ICTs becoming instruments of transitional justice in the future. Ultimately, it concludes that, while further moves towards a transitional justice mandate may be possible in the short-term, this could ultimately undermine the effectiveness of ICTs as instruments of both paradigms. In contrast, focusing on the juridified diplomacy mandates of ICTs may increase their beneficial impacts if appropriate caution is exercised.

The two paradigms

ICTs are established through complex processes involving negotiations among a wide array of individuals and organisations with diverse interests. They do not reflect the working out of coherent conceptual frameworks defined ex ante. Rather, observers have constructed such frameworks or paradigms ex post in order to describe, to understand and to test assumptions about ICTs.Footnote 3 To date, two rival and ostensibly incompatible paradigms – transitional/post-conflict justice and international politics/juridified diplomacy – have emerged as the dominant frameworks for understanding ICTs. Neither paradigm in itself captures the complexity of ICTs or indeed of international diplomacy or transitional justice. Rather, they serve as rough conceptual frameworks for understanding these institutions and processes. This section describes these two paradigms and examines to what extent they are contradictory or complementary means of understanding ICTs.

Transitional/post-conflict justice

The UN Secretary-General’s 2004 Report on the Rule of Law and Transitional Justice in Conflict or Post-Conflict Societies describes transitional justice generally as ‘compris[ing] the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’.Footnote 4 Ruti Teitel more precisely defines ‘transitional justice’ as ‘the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoing of repressive predecessor regimes’.Footnote 5 While these broad descriptions may encompass a wide variety of views as to what specifically transitional justice should entail and precisely how ICTs may contribute to its realisation,Footnote 6 two fundamental characteristics underlie the paradigm.

First, justice is an important goal to be pursued. Justice within this paradigm has a specific sense related to the rule of law and legal processes, and a claim to justice is one that must be phrased in legal terms.Footnote 7 In this sense, justice is opposed to politics as usual. Indeed, justice may not be the only or even the ultimate goal; it may exist alongside or as an intermediary to other goals such as peace or reconciliation.Footnote 8 However, justice is a significant and relevant good. As such, the manner in which institutions contribute to justice, the extent to which they do so and the particular conceptions of justice they serve become defining characteristics.

As a consequence, ICTs are perceived within this paradigm as mechanisms for the delivery of a highly formalised and individualised justice in the form of the criminal trial. They are, in this fundamental respect at least, indistinguishable from national criminal courts. Together, international and national or local criminal courts are thought to form a ‘system’ or ‘community’ of courts working to enforce accountability for international crimes for the benefit of societies undergoing transition or recovering from conflict.Footnote 9 They are thus distinguished from other justice-related mechanisms such as truth commissions or lustration mechanisms, all of which are contrasted with political (i.e. non-legal) processes.Footnote 10

Second, transitional justice interventions tend to operate more locally, with their effects felt on the society undergoing a transition or recovering from conflict.Footnote 11 The precise borders of this society may vary; they can be conceived in a more communitarian or more individualistic manner, and the views of the society’s members may be given more or less weight in the design of particular justice mechanisms. However, the key point is that all justice mechanisms, including ICTs, should be evaluated in terms of the benefits they bring to particular defined societies in transition or post-conflict. The paradigm is inapplicable, however, to societies that have not yet entered into transition or that remain in the midst of conflict.Footnote 12 Furthermore, the international audience, which transcends the borders of particular societies, is given at most secondary consideration after the concerns of local populations.Footnote 13

Juridified diplomacy

Counterpoised to the transitional justice paradigm, critical scholars have put forth an alternative vision that largely conceives of ICTs as instruments of international politics.Footnote 14 This paradigm – building on Simpson’s notion of ‘juridified diplomacy’ – is constructed upon premises that at least appear fundamentally opposed to those that underlie the transitional justice paradigm.

First, within this paradigm, ICTs are not primarily instruments of law and of justice but of diplomacy and of politics.Footnote 15 They are set up by states to achieve their political purposes rather than for the pursuit of an idealised notion of justice. These purposes may reflect self-interest in a narrow, cynical sense or more broadly conceived, such as a general interest in maintaining international peace and security. As instruments of politics, they fulfil these purposes primarily through influencing the calculus or perceptions (short or long term) of political actors,Footnote 16 although interaction with ICTs may also have a normative effect on the interests of states in the long term.Footnote 17 The key point is that the fact that ICTs conduct criminal trials is considered at most an accidental or secondary characteristic of such institutions. ICTs have much more in common with other mechanisms of international diplomacy, such as the threat or imposition of sanctions or military intervention, than they do with national courts.Footnote 18

Second, defining ICTs as mechanisms of diplomacy also situates them within a particular community of practice, namely the international diplomatic community. This community may be defined narrowly to include only states or more broadly to account for a wide range of non-state actors. Local actors may even have a role within this community. The defining aspect of this community, however, is that it transcends particular societal borders; by contrast, borders provide the context for the transitional justice paradigm. Moreover, as instruments for effecting political change, international criminal courts and tribunals are not limited to operating within post-conflict or transitional situations. Rather, they are explicitly intended to bring about such changes and potentially bridge conflict and post-conflict societies.Footnote 19

Competing or complementary paradigms?

As described before, the two paradigms reflect premises defined in opposition to each other and that superficially appear to be irreconcilable. One considers transitional justice as the triumph of law and legal processes over politics. The other regards judicial mechanisms as co-opted for political purposes and rendered subservient to political aims. One defines itself as operating within particular national or societal borders, and the other as operating only across such borders.

On closer look, however, these paradigms depend on each other for their respective existences and cannot be easily separated. Indeed, they are mutually constitutive: the decision to pursue justice through legal mechanisms is itself a political decision, whilst this decision is justified through appealing to legal norms and implemented through legal mechanisms. And while the focus of transitional justice is on one particular society, that society’s claims to justice are often articulated in presumptively universal norms that reject its past practices. Yet as Ruti Teitel notes, despite the appeal to the universal, what constitutes justice ‘is determined not from an idealized archimedean point but from the transitional position itself’.Footnote 20 Thus, it is impossible to separate one paradigm entirely from the other. As Frédéric Mégret observes, ‘all attempts at prioritizing one over the other seem destined to fail, as the excluded paradigm comes back to haunt the dominant account’.Footnote 21

These two paradigms of transitional justice and juridified diplomacy constitute ideal types, each representing a distinct set of contradictory but also mutually constitutive values in dialogue with each other: the local and judicial contrasted with the international and political. International criminal law is a contested field in which states and other policy-makers are constantly articulating and mediating between values such as law and politics, realism and idealism, individual and collective, local and international and so forth.Footnote 22 As the debate between the competing values represented by each paradigm plays out over time, support for one or the other set of values ebbs and flows among those in a position to influence the development of ICTs and manifests in differences within and between these institutions over time. The next section of this chapter looks at why and to what extent the values represented by one or the other paradigm have come to dominate in different ICTs.

Historical development of international courts and tribunals

This section traces the historical evolution of international criminal law (ICL) through the five ICTs established to date: the International Military Tribunal (‘Nuremberg Tribunal’), the International Military Tribunal for the Far East Tribunal (‘Tokyo Tribunal’), the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). It excludes hybrid mechanisms and purely domestic institutions (criminal and otherwise) dealing with international crimes. The same contestation between contradictory but mutually constitutive paradigms takes place at all levels of the transitional justice/international criminal law debate. Similar observations could be made at national or local levels or among other transitional justice mechanisms, although the different actors and different interests will lead the processes to play out differently. This chapter limits itself to exploring how this process of contestation has played out at the sites of construction of ICTs.

Nuremberg and Tokyo tribunals

The establishment of the Nuremberg and Tokyo tribunals emerged not out of a commitment to deliver justice to affected communities but rather as part of broader efforts to achieve the overarching political aims of ending the war and establishing peace. The founding documents of the Nuremberg and Tokyo tribunals rooted these institutions, respectively, in the 1943 Moscow and 1945 Potsdam Declarations, sweeping political documents setting out the Allies’ aims and intentions with respect to the conduct and termination of hostilities and the establishment and maintenance of peace and security after the war.Footnote 23 The Moscow Declaration situated a call for punishment alongside such broad political aims as continuing the war, disarming the Axis powers, establishing what was to become the United Nations and regulating armaments in the post-war period.Footnote 24 The Potsdam Declaration, occurring nearer to the end of the war, listed the need to mete out ‘stern justice’ among the comprehensive terms for Japanese surrender.Footnote 25

The threat of punishment contained in the Moscow and Potsdam Declarations did not, however, necessarily reflect any commitment to criminal justice as understood within the transitional justice paradigm. The Moscow Declaration reserved the question of how major war criminals would be punished for a future decision of the Allies,Footnote 26 and it was equally contemplated that they could be summarily executed without trial or following only the most cursory ‘show trial’, as opposed to following a full trial.Footnote 27 The decision to punish these individuals – already denoted as ‘war criminals’ – through the mechanism of a criminal trial came much later, long after the decision to inflict individual punishment on the authors of atrocities had been taken.Footnote 28 The Tokyo Tribunal largely followed its influential predecessor. Thus, while the Nuremberg prosecutor Robert Jackson referred to the decision to subject those responsible for Nazi atrocities to criminal trials as ‘stay[ing] the hand of vengeance’,Footnote 29 at their roots, these tribunals represented the threat of individual violence to be inflicted directly on the Allies’ political opponents. The decision to opt for criminal trials instead of summary executions merely channelled and did not substitute for such threats of individualised violence.

The nature of the crimes the tribunals were to address further reflected the primary concern of their creators with matters of international politics and not transitional justice. The main focus of the creators and proponents of the tribunals was the launching of an aggressive war, a crime that affected primarily the interests of states.Footnote 30 War crimes, which also implicated primarily the interests of states and their militaries, were of lesser but significant concern.Footnote 31 Far less significance was attached to crimes against humanity, the one category of crimes that most reflects the concerns motivating the more recent transitional justice paradigm.Footnote 32

Over time, the Nuremberg and Tokyo tribunals increasingly took on apparent characteristics of the transitional justice paradigm. As mentioned earlier, criminal trials triumphed over the prospect of summary executions, crimes against humanity were eventually included in the tribunals’ charters, and trials were carried out even after the Allies’ war aims had been achieved. However, the extent of these developments should not be exaggerated. The legality of trials was sharply contested.Footnote 33 Prosecutions were highly selective. The tribunals not only focused exclusively on German and Japanese defendants, but also spared those German and Japanese officials who could serve useful political purposes.Footnote 34 The tribunals’ jurisdiction over crimes against humanity was restricted to crimes committed in execution of or in connection with the war.Footnote 35 Though the war may have ended, trials were seen as serving the broader purpose of delegitimising Nazism and Japanese imperialism and establishing the ideological foundations of the post-war order.

Thus, to the extent that the Nuremberg and Tokyo tribunals took on apparent characteristics of transitional justice, they did so primarily for reasons of international politics, not out of concern among policy-makers as to their domestic effects on transitional societies. The decision to reject summary executions in favour of criminal trials had little to do with the impact of these trials on Germany or Japan. Rather, to impose punishment on individuals without trial was considered by international decision-makers to be an affront to shared international values.Footnote 36 Similarly, the incorporation of crimes against humanity came only after pressure from non-governmental organisations who appealed not to a particular society’s need for justice but to a common sense of humanity perceived to be shattered by these crimes.Footnote 37 In short, the tribunals were tools of diplomacy: in Simpson’s words, they ‘pursue[d] political ends through jurisprudential means’.Footnote 38

ICTY/ICTR

Like their Nuremberg and Tokyo predecessors, the ICTY and ICTR bear many of the hallmarks of juridified diplomacy. They were established by an overtly political body – the UN Security Council – in the exercise of a political mandate – Chapter 7 of the UN Charter – with a view to achieving an overtly political aim: the restoration and maintenance of international peace and security.Footnote 39

In both cases, the establishment of the tribunals followed an escalating series of Security Council resolutions and presidential statements, beginning with expressions of general concern about or condemnation of the ongoing violence and continuing through the imposition of arms embargoes, calls to respect humanitarian law, the deployment of peacekeepers and, penultimately, the establishment of commissions to investigate allegations of international crimes.Footnote 40 Only after the failure of these actions to achieve their intended aims of restoring peace and security did the Security Council turn to the establishment of tribunals. In these circumstances, threatening individualised violence against perpetrators of crimes was seen as a more forceful action that could be taken either without going so far as to intervene militarily in the case of the former YugoslaviaFootnote 41 or to make up for having failed to intervene adequately in the case of Rwanda.Footnote 42

The primary political function of the ICTY and ICTR was further reflected in the debate, or more properly the lack of debate, concerning their features. Echoing the relationship between the Moscow Declaration and the establishment of the Nuremberg Tribunal, the decision to establish the ICTY preceded any consideration of the means by which it would operate.Footnote 43 Meanwhile, as with the Tokyo Tribunal, the ICTR’s Statute largely replicated that of its sister institution.

As was the case with the Nuremberg and Tokyo tribunals, states targeted and labelled as ‘criminals’ those individuals whom they intended the ad hoc tribunals to prosecute long before they had been established, let alone having begun any investigations or trials.Footnote 44 To the extent that states expressed views on the possible features of the ICTY, at least some influential states advocated features inimical to the concept of fair and independent justice, such as placing it under the control of the Security Council.Footnote 45 Once established, the ICTY and ICTR also found their ability to carry out their mandates frustrated by a lack of support by states, suggesting that the interest of states in using the political threat of punishment outweighed their support for adjudicating crimes committed in the regions.Footnote 46

Notwithstanding their firm roots in international political concerns, the ICTY and ICTR showed increasing affinity with the transitional justice paradigm. Both tribunals were established, at least formally, not only to restore peace and security, but also to hold accountable those responsible for serious violations of international humanitarian lawFootnote 47 and, in the case of the ICTR, to contribute to national reconciliation and the strengthening of national courts.Footnote 48 Their jurisdictions were extended from the Nuremberg and Tokyo tribunals to include genocide, war crimes committed in non-international armed conflict and crimes against humanity when committed in non-international armed conflict (ICTY) or even independent of any nexus to armed conflict (ICTR),Footnote 49 and they were given broad jurisdiction over all sides to the conflicts. Suggestions to subordinate the judicial process to political supervision were rejected,Footnote 50 the independence of the tribunals was guaranteedFootnote 51 and cooperation and support was eventually forthcoming with the overwhelming majority of suspects surrendered to the tribunals.

As they grew, the tribunals began to develop and to articulate their own conceptions of their roles as instruments of transitional justice and of reconciliation, and to move themselves in these directions.Footnote 52 Outreach to local populations was accepted, if belatedly, to be an important component of the tribunals’ practices, and the tribunals gradually began to work more closely with national courts and other organisations engaged in transitional justice.Footnote 53

As with Nuremberg and Tokyo, the ICTY and ICTR’s transitional justice mandates were not universally accepted,Footnote 54 and the extent to which they have contributed to local justice remains limited. They have been accused of impartiality for not prosecuting all sides to the conflicts despite having the jurisdiction to do so.Footnote 55 More importantly, an immense gulf (or ‘impunity gap’) persisted between the activities of the ad hoc tribunals and demands for punishment of those responsible for atrocities. Ten years after the establishment of the ICTR, thousands remained in Rwandan jails awaiting trialFootnote 56 and it was not until 2011 that the tribunal approved the transfer of suspects for trial in Rwanda on the basis of ‘international standards’ (namely, opposition to capital punishment), which was prioritised over calls for more local accountability.Footnote 57

While the tribunals themselves and their staff may have developed and acted on their own conceptions of the ICTY and ICTR as instruments of transitional justice, support among states for the apparent turn towards this paradigm can be explained to a large extent in light of international political concerns. More specifically, two sorts of international influences – normative and instrumental – led to states supporting efforts by the ICTY and ICTR to take on apparent characteristics of transitional justice.

First, as with Nuremberg and Tokyo, international values shaped both the structure and the operations of the ad hoc tribunals. Suggestions to subject them to the political control of the Security Council were rejected as inconsistent with international values,Footnote 58 and it was considered ‘axiomatic’ that the tribunals’ procedures should be consistent with internationally recognised human rights.Footnote 59 The international nature of the tribunals, including in particular the composition of their judiciaries and their location outside situation countries, was seen as means to safeguard their international legitimacy.Footnote 60 When international and national values clashed, such as over the location of the tribunals, the primacy of the tribunals over national courts or the prohibition of the death penalty before the ICTR, it was the international that won out, even though encouraging national values could arguably contribute more to transitional justice.

Second, states came to support the transitional justice mandate of these tribunals for more instrumental reasons. As international public opinion paid increasing attention to the unfolding atrocities and support for accountability measures grew, it became in the interests of states to be seen as defenders of the international rule of law and to provide the ICTY and ICTR with necessary cooperation and support.Footnote 61 The same states also quickly realised that the international legitimacy bestowed by fair and independent judicial processes could further their own political aims. The issuance of arrest warrants for Radovan Karadžić and Ratko Mladić provided an objective basis for excluding them from negotiations on the future of Bosnia-Herzegovina, thereby enabling diplomats to deal with their preferred interlocutor, Slobodan Milošević.Footnote 62 Later, the perception of Milošević as a war criminal, even before an indictment was issued, eased the acceptance for the ongoing bombing of Kosovo by NATO forces.Footnote 63 This recognition of the possible convergence between states’ political interests and the legitimacy bestowed by independent judicial bodies constituted a significant development in the practice of ICTs and was to be of relevance for the ongoing negotiations on the establishment of the ICC.

International Criminal Court

To some extent, the adoption of the Rome Statute of the International Criminal Court in 1998 can be seen as continuing the trend of increasing recognition of the transitional justice paradigm. It may even be described as, to that point, a high-water mark in the development of ICTs qua transitional justice mechanisms. The ICC has broad jurisdiction over crimes against humanity outside of situations of armed conflict as well as war crimes committed in non-international armed conflict.Footnote 64 The exercise of this jurisdiction is subject to the principle of complementarity,Footnote 65 suggesting a preference for domestic proceedings that are closer to affected populations. Victims have unprecedented rights to participate in proceedings and to obtain reparations, rights that make sense only within the transitional justice paradigm.Footnote 66 Most importantly, its jurisdictional regime puts fundamental determinations of where and when the ICC will act in the hands of an independent prosecutor and judges guided by objective criteria set out in the Statute.Footnote 67

One should not be too hasty, however, in celebrating the ICC as an unqualified victory for the premises of transitional justice. As noted by Judge Philippe Kirsch, the first president of the ICC and former chairman of the committee that elaborated the ICC’s Statute,

The ICC did not create itself. It was created by states for the fulfilment of certain objectives stated by them and as provided in the ICC statute: to put an end to impunity for the perpetrators of the most serious crimes that threaten the peace, security and well-being of the world; to contribute to the prevention of such crimes, and to guarantee lasting respect for the enforcement of international justice.Footnote 68

Originally conceived as ‘a “facility” for states – something of which they might avail themselves if they thought it useful or expedient to do so’,Footnote 69 the ICC may be triggered by states referring situations (individually or via the Security Council), and the Statute accords privileged status to these referrals. Not only may the prosecutor investigate such situations without first awaiting judicial approval as he must in the case of investigations proprio motu,Footnote 70 but the referring state or Security Council may also challenge a decision of the prosecutor not to investigate or prosecute.Footnote 71

The early years of the ICC have seen states seize it in circumstances that recall the establishment of previous ICTs. Uganda and the Central African Republic referred situations on their own territory, specifically targeting individuals opposed to the governing regime in their referrals.Footnote 72 Much as it did in establishing the ICTY and ICTR, the Security Council referred the situation in Darfur, Sudan, only following the failure of a series of increasingly stringent measures, including the establishment of a commission of inquiry, to achieve peace and security.Footnote 73 In an action that recalls the earlier origins of ICTs in the 1943 Moscow Declaration, the Security Council referred the situation in Libya in the context of a broader resolution aimed at stemming a conflict.Footnote 74 In each of these cases, the threat of punishment was seen as a tool for achieving a political end – the resolution of conflict – and this threat could be withdrawn through legal processes or promises of non-cooperation if withdrawal would further those ends.Footnote 75 In these circumstances, the principle of complementarity represents not so much a preference for national or local trials but rather deference to states that may choose to relinquish the exercise of jurisdiction to the ICC.Footnote 76

Even the proprio motu powers of the prosecutor and his or her discretion in deciding to investigate situations or cases can be fully explained within the juridified diplomacy paradigm. States undoubtedly realised, from the experience of the ICTY, that the ability of the ICC to influence political developments would depend on its perceived legitimacy. By creating an independent prosecutor, states have ‘outsourced’ difficult decisions as to when and where to intervene judicially with two potential benefits.

First, it increases the legitimacy of international action if judicial intervention is triggered or led by an independent prosecutor, rather than a handful of possibly self-interested states. Second, there may be situations where states wish international action to be taken but would not be willing to incur the political costs of referring a situation to the Court. By feeding information to the prosecutor, they may anonymously contribute to the opening of an investigation. In exchange for these benefits, states had to accept the risk of an independent prosecutor and judges who may act against their interests. However, it should be recalled that such independence, as a practical matter, is not unlimited. The whole ICC system is, at its core, entirely dependent on the support and cooperation of states.Footnote 77 In particular, without the arrest of suspects, the ICC may be prevented from carrying out trials. As such, states retain significant control over the effectiveness of the ICC.

That the ICC can be largely explained within the juridified diplomacy paradigm – as a means of routing political interests through legal forms – does not necessarily negate its role as an instrument of transitional justice. The two could be complementary. It could also be that the two paradigms have converged in the recognition that justice and peace must, in the words of UN secretary-general Ban Ki-Moon, go ‘hand in hand’.Footnote 78 In 2010, states parties to the ICC Statute held a conference to review the Statute, during which they devoted a significant portion of time to a ‘stocktaking’ of international criminal justice as it currently stands.Footnote 79 While they emphasised that justice is ‘a fundamental building block of sustainable peace’,Footnote 80 their discussions reflected a limited commitment to a view of the ICC as an instrument of transitional justice. Its ultimate impact was considered primarily in terms of its contribution to peace;Footnote 81 its impact on victims and affected communities was treated as a secondary or incidental effect.Footnote 82 Furthermore, when it came to closing the so-called impunity gap between national jurisdictions and the ICC, states made clear that the ICC had a very limited role in strengthening national jurisdictions. In their view, it should rather focus on its ‘core mandate and function’, whilst ‘[a]ctivities aimed at strengthening national jurisdictions … should be carried forward by States themselves, together with international and regional organizations’.Footnote 83

Towards the integration of transitional justice and international politics

In light of the arguably increasing acceptance by states of ICTs as instruments of transitional justice, the question is whether and to what extent ICTs may play such a role in the future. This section considers the extent to which it is practical and desirable for ICTs to engage more directly with the objectives of transitional justice.

Integrating transitional justice and juridified diplomacy in practice

The history of ICTs, as depicted earlier, demonstrates that it is possible to render these institutions more responsive to transitional justice concerns. States have increasingly recognised that the legitimacy provided by independent judicial bodies can contribute to the advancement of their own political interests. They have accordingly accepted and even supported the independence and judicial nature of ICTs and provided them with necessary support. This interest of states has also opened the opportunity for ICTs to develop their own identities and for ‘outsiders’, most notably non-governmental organisations, to also influence their direction.Footnote 84

By arguing that the legitimacy of ICTs depends on such factors as the fairness of trials and the effectiveness of cooperation or outreach, advocates of transitional justice have sought to move ICTs in this direction. To date, states have shown greater receptivity to arguments concerning the ‘justice’ aspect of the transitional justice paradigm, that is, to ensuring the fairness of judicial proceedings, than to its ‘transitional’ component, that is, its benefit to societies undergoing transition.

Any effort to render ICTs more responsive to transitional justice concerns will encounter two significant challenges. First, as reflected earlier, support of states for the transitional justice mandate of ICTs remains limited. A considerable increase in state support would be needed to effect a significant shift in the role of ICTs towards transitional justice. Second, turning ICTs into comprehensive instruments of transitional justice would require incredible investments. In the case of Rwanda, for example, the ICTR issued indictments against eighty individuals, yet approximately 120,000 persons remained in jail as of 2004.Footnote 85

The complementarity challenges in the situations before the ICC are similarly daunting.Footnote 86 Promoting effective and comprehensive transitional justice will require longer-term involvement in societies and a broader approach to criminality than that currently employed by any ICT. Even only moving international courts and tribunals partially towards closing the ‘impunity gap’ would significantly change the functioning of these institutions. In this context, the questions remain whether, to what extent and in what form further expanding the transitional justice role of ICTs would be desirable.

The desirability of integrating transitional justice and juridified diplomacy

Given the limited support of states and the significant investments likely to be required, prudence is merited in any effort to enhance the contributions of ICTs to transitional justice. Demanding too much too quickly risks creating unrealistic expectations that courts and tribunals will be unable to fulfil. Such failures in the short term could significantly impair enthusiasm for broader transitional justice initiatives in the long term. Moreover, a backlash may emerge if states see the mandates of these institutions being stretched too far beyond what they are willing to support.Footnote 87 Emphasising the contributions of ICTs to transitional justice goals may also lead to a diminution of support and cooperation, to the extent that states do not see these goals as being in their interests. In contrast, stressing the contributions of ICTs to international peace and security increases the likelihood that states will see their interests reflected and provide the support and cooperation necessary for ICTs to function as instruments of both transitional justice and juridified diplomacy.Footnote 88

In addition, there is a potentially significant loss incurred in transforming ICTs into more effective instruments of transitional justice. ICTs are beginning to emerge as potentially powerful tools of specific deterrence and conflict resolution.Footnote 89 Burdening ICTs with the responsibility to deliver comprehensive transitional justice could significantly curtail the flexibility and freedom of action that, arguably, enables them to make these contributions. To the extent that it is desirable to pursue transitional justice, it may be preferable to heed the lessons of the 2010 ICC Review Conference stocktaking exercise and to focus on developing national capacities to promote transitional justice while preserving the more selective, targeted role of international courts and tribunals as instruments of juridified diplomacy – bearing in mind that many of the same challenges of contestation of values will be replicated at national and local levels.

Focusing on the juridified diplomacy role of ICTs is not without its own dangers. Leaving ICTs as instruments of international politics risks opening them to the cynical manipulation of states, thereby undermining not only their limited contributions to transitional justice but also their legitimacy, which provides their added value within the juridified diplomacy paradigm. It is crucially important – even within this paradigm – that states are aware of the substantial damage that can result from undermining the legitimacy, independence or effectiveness of ICTs, or of failing to provide them with the necessary support and cooperation.

Even minor instances of non-cooperation or infringement on the perceived independence or legitimacy of ICTs can have significant effects because, as Thomas Franck has observed with respect to international law more broadly, ‘[i]n a community whose rules are so largely derived from the persistent patterns of its members’ conduct, each action is judged by all states in terms of its projected effect it all were to act similarly’.Footnote 90 It is therefore vital that states make every effort to refrain from interfering with, and provide full support to the conduct of, independent judicial processes before ICTs. In those limited cases where states may consider it absolutely necessary to withhold support or otherwise to interrupt the judicial process, every effort should nevertheless be made to preserve the integrity of ICTs.

Conclusion

As much as signifying acceptance of the promise of transitional justice, the evolution of ICTs can be understood as reflecting growing recognition of states of the importance of legitimacy in international politics. By creating and supporting independent criminal courts and tribunals guided by neutral, objective criteria, states have been able to draw on these institutions’ legitimacy for their own purposes. This independence has, at the same time, enabled these institutions, with the support of civil society and others, to develop their own identities as instruments of transitional justice within the limits of the tolerance of states and other policy-makers.

Nevertheless, the support of states for ICTs playing a transitional justice role remains limited. While the integration of transitional justice and international politics may be desirable and achievable in the long-term, the hesitation of states to fully embrace the transitional justice paradigm, at least insofar as ICTs are concerned, suggests that caution is due in the short-term. To expect ICTs to perform the functions or to fulfil the purposes ascribed to them within the transitional justice paradigm is to ask these institutions to play many roles, perhaps more than any one institution can bear. The ICC’s own struggle as a court of both retribution and reparations is instructive in this regard.Footnote 91

The extent to which ICTs contribute to the realisation of the aims of transitional justice should not be taken as measures of their overall effectiveness, and the failure to ‘achieve’ transitional justice, broadly construed, should not be laid at the feet of these institutions. The evaluation of ICTs should be done on the basis of the political context and constraints in which they operate, not on the basis of what one might wish them to do under ideal circumstances. Thus, with respect to the ICC – whose future development is at the centre of this evolution – it may be preferable to continue to explore and to focus on its contributions as an instrument of a legitimised international politics, mindful of the potential for its political manipulation by states. At a minimum, efforts to render the ICC more responsive to the concerns motivating the transitional justice paradigm must acknowledge the risks and challenges of doing so.

4 Bespoke transitional justice at the International Criminal Court

Jaya Ramji-Nogales

This chapter grapples with the question of whether the International Criminal Court (ICC) should be conceptualised as a mechanism of transitional justice. Most theorists insist that transitional justice is either an inappropriate or an unrealistic goal for the Court. Some scholars have proposed that the Court might more accurately be theorised as seeking to achieve political goals through ‘juridified diplomacy’. Others suggest that the Court should speak to a global, rather than local, audience. A third school of thought criticises international criminal law as insufficiently focused on the preferences of societies affected by mass violence. Going one step further, some theorists suggest that the Court should be set aside in favour of mechanisms that are more responsive to local preferences. Although the incorporation of the ICC into a locally owned transitional justice paradigm faces substantial challenges, this chapter draws on a theory of ‘bespoke transitional justice’ to suggest ways in which this knotty relationship might be better designed.

This chapter proceeds in three parts. It begins by laying out three alternate theories by which we might explain the purpose of the ICC: global justice, ‘juridified diplomacy’ and transitional justice. Each of these theories is held up to scrutiny by exploring the limits of its explanatory power and accuracy. The chapter then presents a theory of bespoke transitional justice that I have presented in greater detail elsewhere, but with particular attention to the role of the ICC in ‘locally owned’ transitional justice efforts.Footnote 1 In particular, I expand upon definitions of ‘local’; that is, who are the local stakeholders in transitional justice situations and how do we define their interests and priorities? I also elaborate upon concepts of ‘ownership’; that is, what does it mean to have a stake in the Court’s work? The chapter ends with concrete suggestions as to the potential role of the ICC in locally owned transitional justice efforts.

In short, a bespoke transitional justice approach to the ICC reminds us that international prosecutions may not be appropriate in all contexts, and argues that the views of members of conflict-affected societies should play a central role in determining whether or not the Court should intervene in a given situation. This means that the Office of the Prosecutor (OTP) should carefully study the appropriateness of prosecution in specific cultural and societal contexts before proceeding. If international prosecution will aid some of the affected society’s transitional justice goals, it may be appropriate to open a case.

But international justice proponents, including those who speak on behalf of the OTP, should recognise the limitations of the Court in meeting all transitional justice goals and manage expectations accordingly. This entails clearly communicating the circumscribed nature and impact of Court interventions and, where appropriate, working alongside other transitional justice mechanisms that may better achieve goals enumerated by members of the society that has suffered mass violence. Moreover, in cases in which such intervention does not respond to local interests, international prosecution should not be pursued.

Conceptualising the ICC’s purpose

The theoretical aims of the ICC are deeply contested, with at least three different schools of thought struggling for prominence. The first theory, which I will label ‘global justice’, defines the goals of the Court as creating international legal standards aimed at ending impunity for the crimes laid out in the Rome Statute.Footnote 2 Theorists in this school by and large view the Court as a legal entity that is above the political fray. In their view, the central aim of the ICC is to establish international norms of criminal justice; repairing conflict-affected societies is a secondary goal. This might be labelled the ‘trickle-down’ approach to international justice; proponents suggest that once these norms take root on the international level, they will be adopted, enforced and complied with on the national level. To the extent that the Court’s efforts benefit members of the conflict-affected society, they are thought to prioritise the interests of victims.Footnote 3

The second theory by which the role of the ICC might be conceptualised is that of ‘juridified diplomacy’, a phrase coined by Gerry Simpson and described in greater detail by David Koller in this volume.Footnote 4 Theorists of this school suggest that the Court’s goals are to achieve international peace and security and, in some cases, political self-interest. According to this theory, the ICC is inherently political and works primarily as an instrument of international diplomacy. The role of the Court is therefore not to empower national institutions. It aims instead to assist in resolving conflicts through the use of referrals as a threat of punishment. The independent prosecutor can also be viewed as a route for domestic elites to outsource difficult political decisions.Footnote 5 This theory focuses on the global political impact of the Court rather than on local outcomes. Following this approach, domestic political elites would be the main local beneficiaries of the Court’s efforts.

The third possible conceptual approach to the ICC’s role is the theory of transitional justice. As discussed in more detail in the next section, scholars of transitional justice view the Court’s central goal as repairing societies that have suffered mass violence. Rather than situating the Court entirely within the political or legal realm, a transitional justice approach views the Court as a legal institution enmeshed in a field of political interests. From this starting point, theorists of this school think about how to manage the political dimensions of the Court in a way that prioritises the interests of rank-and-file members of the affected society (as opposed to local political elites). This theory gives precedence to local perceptions of the Court’s legitimacy over international legal or political outcomes.

This schematic highlights the different ways in which these three schools of thought define the purposes of the ICC:

GoalsFocusSource(s) of legitimacySocietal beneficiaries
Global justiceInternational criminal standardsLegalInternational legal communityVictims
Juridified diplomacyInternational peace and securityPoliticalInternational diplomatic communityPolitical elites
Transitional justiceRepairing affected societiesLegal and politicalLocal societyGeneral populace

In practice, the ICC does not wear any of these mantles well. None of the theories is a perfect fit; they each have significant descriptive and explanatory flaws. The Court’s efforts to create international legal norms have been foiled by politics, the outcomes of its political interventions have been unpredictable and its record on addressing the needs of local populations has been decidedly mixed.

The global justice theory has proved incapable of contending with the inescapably political nature of the ICC. The Court is engaged in deeply politicised situations and requires substantial political support on many fronts in order to succeed. The politics of the Court must be addressed head-on in any serious effort to theorise its goals.Footnote 6 Perhaps because many of its actors view themselves and their work as above the political fray, the Court has struggled to control the narrative around its work, particularly in Kenya and Sudan. Political elites in both of those countries have managed to depict the ICC, at least in some quarters, as a neocolonialist tool that prosecutes only African defendants. Setting to one side the question of whether this depiction is fair, the fact that it has gained traction with at least some local audiences stymies efforts to create international criminal law norms.

The Court’s individualist and adversarial approach to complex political situations creates further problems for the adoption of the international standards it promulgates.Footnote 7 Given their zero-sum nature, international criminal trials are not well suited to situations of mass violence in which the ‘truth’ is violently disputed. Those who disagree with the Court’s selection of winners and losers may simply reject the trials as ‘victor’s justice’.Footnote 8 This depiction of the Court’s work may resonate deeply with portions of the affected society, who will similarly reject the international criminal law standards the Court is intent upon promoting. Moreover, the ICC’s focus on individual criminal accountability overlooks the broader structural roots of mass violence, both national and international.Footnote 9 Again, local populations, who may have a much more nuanced perception of the causes of conflict, may be sceptical of ICC decisions that appear to be divorced from the broader context. Some segments of the affected society may, on this basis, refuse to accept the Court’s pronouncements, as Hellman’s contribution to this volume recounts. The ‘global justice’ theory is therefore limited by its failure to engage sufficiently with the political aspects of the Court’s work.

The juridified diplomacy theory recognises the political nature of the ICC, focusing on its role in promoting international peace and security. Its flaws lie in the messy and unpredictable nature of international political outcomes. The idea that the ICC can be used as a tool to resolve conflicts assumes that the Court’s impact on a given conflict can be forecast and measured with some accuracy. The Kenya situation provides an example of the unexpected and complicated outcomes of Court interventions.Footnote 10 The prosecutor’s proprio motu investigation into the mass violence surrounding Kenya’s 2007 election led to the laying of charges against six individuals, including Uhuru Kenyatta and William Ruto, now president and deputy president, respectively, of the country as of the time of writing. Kenyatta and Ruto had been political rivals during the 2007 elections, but became allies soon after they were indicted in 2011. In December 2012, they formed a coalition party unified around opposition to the ICC prosecutions. Presenting themselves as a party of reconciliation, Kenyatta and Ruto won the 2013 elections. This outcome underscores the point that the effects of ICC interventions are impossible to predict.

Perhaps the only predictable consequence of outsourcing difficult political decisions to the prosecutor is that it will enable political elites to manipulate the ICC to suit their interests.Footnote 11 In the case of Uganda, President Yoweri Museveni requested Court intervention to issue arrest warrants against the Lord’s Resistance Army (LRA) in 2003. Needing Museveni’s assistance to hunt down indicted LRA leaders, the prosecutor has not yet sought – and is unlikely ever to seek – to prosecute the Ugandan military (Uganda People’s Defense Force or UPDF). The Court’s decision sent the message that the UPDF was not responsible for the many atrocities it committed during its decade-long conflict with the LRA.Footnote 12 This manoeuvre also helped Museveni’s government to obtain military aid and international legitimacy. Uganda thus became a ‘golden child’ of the international criminal law community, hosting the first review conference for the Rome Statute in 2010. But in 2013, Museveni decided that the Court was no longer a valuable political tool, vocally opposing the prosecution of Kenyatta and Ruto and threatening withdrawal from the Rome Statute.Footnote 13

Given the unpredictable nature of political outcomes, the goal of international peace and security becomes problematic. This term means different things to different people, and the debate over the best methods to achieve it is highly politicised. Even if one could say with any certainty what the impact of ICC interventions might be, it is not clear that external intervention in the form of expressed international criminal norms is sufficient to stabilise a society recovering from mass violence. Attention must also be paid to methods of creating sustainable peace within affected communities.

The transitional justice theory prioritises the preferences of local populations in determining when, and how, the ICC should intervene. A central problem with this approach is the question of measurement of these preferences. As the Kenya example demonstrates, population preferences shift over time – even over a relatively short period of time. As late as December 2010, nearly 80 percent of Kenyans supported the Court’s investigation of the perpetrators of post-election violence.Footnote 14 Just over two years later, Kenyans voted two of those indicted perpetrators, Kenyatta and Ruto, into their country’s two highest public offices. In part, these shifts occur because local populations are composed of many different groups with many different, and often competing, preferences. It is a tall order to understand and represent these different preferences in decisions in determining whether to proceed with prosecutions.

A locally driven transitional justice process also presents two major risks: elite capture and domination. Much like a juridified diplomacy approach that prioritises the political, a transitional justice approach celebrates ‘the local’ risks being captured by local elites, whose priorities may be quite different from those of the general populace. Such a process must take measures to prevent elites from using transitional justice mechanisms, including ICC proceedings, to further their own political ends. An approach that relies on local population preferences to determine when the Court should intervene risks entrenching societal patterns of domination and exclusion.Footnote 15 Significant time and effort must be devoted to ensuring that the voices of marginalised groups are heard and included in decision-making processes.

Bespoke transitional justice: a focus on local ownership

This chapter presents a theory of bespoke transitional justice, namely that effective accountability mechanisms are those that successfully reconstruct local social norms opposing mass violence.Footnote 16 The process of repairing extant norms and creating new norms must be performed within and throughout the affected society in order to fully take root.Footnote 17 As a result, transitional justice must be primarily locally driven and precisely tailored to particular events and societies; hence, bespoke. Though the ICC has faced significant criticism for failing to adequately account for local perspectives in practice, the Court itself is not inconsistent with a theory of bespoke transitional justice.

This chapter defines transitional justice as any mechanism that accounts for mass violence, thereby beginning the process of reconstituting justice, broadly defined, within the society affected by such atrocities.Footnote 18 Mass violence, the widespread commission of criminal acts throughout a society, is enabled by the manipulation of social norms by an insurgent power structure.Footnote 19 In order to adequately address mass violence, then, a transitional justice mechanism must restore upended social norms that oppose mass violence.

The process of norm reconstruction will be most successful if societal stakeholders view the norms promulgated by the transitional justice mechanism as legitimate. Though legal legitimacy, which equates lawfulness with legitimacy, is important, this chapter affords primacy to sociological legitimacy, which requires that the relevant public perceive an institution as worthy of respect ‘for reasons beyond fear of sanctions or mere hope for personal reward’.Footnote 20 When a transitional justice mechanism achieves sociological legitimacy, members of the relevant society internalise the social norms it promulgates. In other words, these norms begin to define how societal stakeholders conceive their own interests.Footnote 21 Such internalised compliance is the most effective method of building a law-abiding society, particularly in transitional societies, where enforcement mechanisms are likely to be weak.Footnote 22

Disaggregating the concept of the ‘relevant society’, at least three groups of internal stakeholders should perceive an institution as legitimate for it to be considered effective: victims of the mass violence, perpetrators of the atrocities and societal elites. At least one group of external stakeholders, international justice proponents who offer financial and technical support for transitional justice projects, must also find the institution acceptable. Of course, the perceptions and preferences of these groups are likely not only to differ but also to conflict, giving rise to difficult questions of prioritisation.

Victims of mass violence are likely the first group of stakeholders that comes to mind when envisioning a transitional justice process. In order to successfully reconstruct social norms, such mechanisms must incorporate the perspectives of these victims. To be sure, the preferences of victims within a particular society will differ. Several factors might impact these variations, including how directly the victims suffered from the violence and how stark the disparities were between the victims’ socio-economic positions prior to the violence.Footnote 23 Nonetheless, transitional justice mechanisms should at least acknowledge the victims’ various perspectives, even if they are not able to fully address each preference. This is a task to which the ICC is not particularly well suited, given legal relevance restrictions on the scope of testimony, not to mention the cost and effort involved in bringing victims before the Court.

The widespread nature of mass violence may make it difficult to distinguish clearly between victims and perpetrators. The same individual who was subject to violence may also have perpetrated violence, in some cases because their participation was coerced or forced, and in other cases simply because of the broad societal participation in these crimes.Footnote 24 The interests of these individuals must also be incorporated into a successful transitional justice process.

The same holds true for perpetrators of mass violence. Any institution that hopes to shift social norms must ensure the participation of as many perpetrators as possible.Footnote 25 There are many challenges inherent in engaging perpetrators, including denial or justification of criminal acts and significant conflict with victim preferences. Yet, a transitional justice mechanism that excludes perpetrators’ interests will be incomplete and unstable.Footnote 26

Perpetrators have unique knowledge of the commission of atrocities that is crucial in creating a complete historical record. Perhaps most importantly, if most perpetrators reject the legitimacy of such a mechanism, a post-conflict society will face duelling social norms, supporting and opposing mass violence. This will likely exacerbate divisions created by the conflict, and impede the reconstruction of society. Similarly, perpetrators must be reintegrated in order to shift social norms effectively; if they are to denounce their prior participation in mass violence, they must view as legitimate the relevant transitional justice mechanism and the norms it propounds. To date, ICC indictments and prosecutions have favoured one side of a conflict over the other; they have generally failed to represent the perspective of multiple perpetrators.

Political elites in the affected society must also perceive the accountability institution to be legitimate. If they do not, they may capture, undermine or reject the transitional justice process. These elites may use a mechanism to gain political advantage over competitors or enemies, as the above example from Uganda demonstrates.Footnote 27 They may support the mechanism in part but aim to prevent themselves and/or their allies from being tried. If public acceptance is low, elites may try to increase their own political power by denouncing the mechanism’s legitimacy. In order to forestall the various methods through which elites may stymie a transitional justice mechanism, a fine balancing act is required. In some cases, it may simply not be possible to eliminate elite meddling in the process.

These significant challenges should not deter efforts to ensure elite perceptions of legitimacy, which, even if imperfect, will increase a mechanism’s effectiveness. There is much room for improvement on this front on the part of the ICC. Simple recognition of, and engagement with, the political nature of the Court’s work may improve its track record, but a more sophisticated strategy must be implemented in order to minimise elite interference as far as possible.

Finally, a successful transitional justice mechanism must be viewed as legitimate in the eyes of at least one group of external stakeholders – international justice proponents. This term is used here to refer to international organisations with great investment and participation in transitional justice efforts. This group includes international advocacy and funding groups such as Amnesty International, Human Rights Watch and the Open Society Foundations, as well as UN staff and some scholars of international law. Most international justice proponents focus on procedural fairness questions – fairness, impartiality, transparency and independence – that at times conflict with the interests of domestic populations. While these concerns are valid and important, they must be carefully balanced with the perspectives of internal stakeholders to ensure that as many actors as possible view the transitional justice mechanism as legitimate.

The ICC generally receives high marks on this front, which is an important consideration for ‘local ownership’ theorists. Though the Court has shortcomings in its ability to address local needs, it draws with it a great deal of international recognition, not to mention funding. While it may be tempting to write off the Court as a transitional justice failure, such an approach may be short-sighted. Engagement with the Court through a bespoke approach to transitional justice can harness its power and make it more responsive to local preferences.

Given that stakeholder perspectives are likely to conflict, a theory of transitional justice must offer a framework for prioritising among competing preferences. Most importantly, a theory of bespoke transitional justice aims to ensure that as many voices as possible are heard, and that prioritised preferences do not repeat past patterns of domination. A pluralist process approach eschews universal truths in favour of institutions and procedures that resolve conflict fairly.Footnote 28 While accepting a broad range of beliefs, this approach limits behaviours, specifically the imposition of a substantial conception of justice through domination.Footnote 29 Domination can be defined as the illegitimate exercise of power to ‘shap[e] agendas, constrain … options, and … influenc[e] people’s preferences and desires’.Footnote 30 In order to avoid domination, an inclusive process is helpful, but must include specific protections designed to ensure that the voices of particularly vulnerable groups are heard and prioritised.Footnote 31

Designing bespoke transitional justice at the ICC

To be successful as a transitional justice mechanism, non-elite local populations must perceive the ICC as legitimate. Perceptions of institutional legitimacy derive from at least three factors: the source from which it has been constituted, the procedure by which it has been adopted and the substance of the rule itself.Footnote 32 From this theory, we can draw out three principles and three methods for increasing the perceived legitimacy of the Court.Footnote 33

Beginning with principles, in order to strengthen the legitimacy of the source of the ICC’s authority, it should affirm norms opposing mass violence that are endogenous to the affected society. The Court can improve the legitimacy of its constitutive procedure by making it participatory and inclusive. It should, for example, take perpetrators’ perspectives into account, so they are not marginalised, and delve into atrocities committed by all parties, not just those who are on the losing end of the conflict. Finally, offering realistic goals to an affected population could improve the legitimacy of the substance of the norms that the Court presents. Recovery from mass violence is a slow and difficult process; the ICC is but one component of a long-term effort, not an immediate remedy. Effective public education campaigns are an essential component of achieving that goal.

The first two principles – affirming community norms and offering an inclusive design process – should be implemented through concrete methods that aim to successfully incorporate local perspectives and authorities into ICC interventions. Relevant norms and stakeholder interests are difficult to discern, and may be manipulated in ways that undermine, rather than strengthen, the legitimacy of the Court. A three-pronged approach should be used to gain a comprehensive and nuanced understanding of these norms and preferences: empirical surveys of the perceptions of local populations, studies of local moral traditions and the participation of local moral leaders.Footnote 34

Empirical population surveys, or ‘stakeholder assessments’, should be performed at least three times during the lifespan of an ICC intervention – at the investigation phase, during the prosecution and after the verdict – to measure the preferences of local populations regarding accountability. Given its neutral position, the Registry would likely be the appropriate entity within the Court to conduct such surveys. Whichever body undertakes such surveys will face numerous challenges in ensuring accurate and reliable measurement given the cross-cultural context. As a result, deep cultural knowledge is a crucial component not only in crafting surveys, but also in determining when the Court should intervene.

Country experts may be able to determine how the Court can incorporate local norms and practices, or how these can work alongside an ICC prosecution. They can also prevent potential conflicts with local norms in the Court’s work. Finally, indigenous moral authorities should be included in the process of determining whether the ICC should play a role in transitional justice efforts. Cultural experts should assist in determining the identity of such leaders and identifying patterns of domination. The ICC can play an important role in limiting domination and corruption, and increasing capacity throughout the transitional process.

At this point, these suggestions are little more than a vision, as the OTP currently employs few of these methods to measure local preferences prior to initiating an investigation.Footnote 35 In practice, however, a bespoke transitional justice approach for the ICC would prioritise the careful and thoughtful selection of situations. It would begin from the premise that societies impacted by mass violence are unique and therefore require differentiated approaches to accountability. As described before, the Court would undertake serious efforts to gauge local preferences concerning its intervention. In addition, it would measure baseline levels of capacity and assess the need for international involvement from the perspective of strengthening local institutions.Footnote 36 The Court would likewise collaborate with local moral authorities to situate its work within a broader transitional justice context, determining how international prosecutions might be sequenced alongside other mechanisms.

The Court’s reparations decision in the Lubanga case offers an example of how local preferences might be incorporated.Footnote 37 In assessing reparations, the Court approved a five-step implementation plan proposed by the Trust Fund for Victims (TFV). According to this plan, the TFV, along with the Registry, the Office for Public Counsel of Victims, and a group of experts, is responsible for selecting the areas involved in the reparations process. In those areas, the TFV will be responsible for a process of consultation and the team of experts will undertake a harm assessment. The TFV will then hold discussions in each area to engage the public in the reparations process with an eye to managing victim expectations. Finally, each locality will develop proposals for collective reparations to be presented by the TFV to the Chamber for its approval.

Though the inclusiveness of the process is to be commended, it would benefit from a more scientific and systematic investigation of local preferences, as well as more specific requirements of deep cultural knowledge among the experts group (rather than simply ‘representatives of the DRC’, who might represent political elites with little moral authority in the affected communities).Footnote 38 The importance of engagement with alleged perpetrators should be underscored in order for reparations efforts to take root in the DRC. Moreover, the Court’s engagement with efforts should begin much earlier in the lifecycle of a case.Footnote 39

As David Koller notes in his contribution to this volume, it is impossible for the ICC to be single-handedly responsible for all transitional justice efforts in an affected society. Situating the Court within a bespoke transitional justice lens does not mean, however, that all transitional justice expectations should be placed upon the Court in countries in which a case is opened. If local perspectives indicate that international prosecution is necessary or useful, the limited role of the Court in achieving expressed societal goals should be clearly communicated by Court staff and other transitional justice actors. International prosecution may be a useful approach in certain situations, and it may create political space for other transitional justice efforts.Footnote 40 But the ICC by no means possesses the entire tailor’s kit; expectations and strategies should be managed accordingly.

A bespoke transitional justice approach also suggests that the ICC should not intervene in societies in which local populations prioritise issues other than criminal justice. Population preference surveys might reveal greater concern around questions of development, including jobs, education and infrastructure, or establishing a historical record, including discussion of the root causes of conflict.

While even a generous reading of Article 17 of the Rome Statute might not support such an approach, the realities of the Court’s limited resources suggest that such factors could be included in strategic decisions about which prosecutions to pursue.Footnote 41 The prosecutor might also look to Article 53’s ‘interests of justice’ provision in situations where societal preferences suggest international prosecutions would not be appropriate, though, similarly, this approach does not fit well with current practice.Footnote 42 Yet if the ICC were to undertake such a bespoke transitional justice approach, its decision not to prosecute certain situations after carefully considering the factors above may well afford the Court greater legitimacy in the eyes of local populations.Footnote 43

Conclusion

Most scholars of the ICC claim that it is not and should not be a mechanism of transitional justice. This chapter argues that such theories have significant descriptive limitations. A ‘bespoke transitional justice’ theory affords a more accurate understanding of the Court and prescribes methods for better aligning its efforts with the preferences of local populations. Such an approach prioritises the reconstruction of social norms in societies recovering from mass violence, and recognises the numerous challenges in doing so. It suggests that the Court should affirm community norms and utilise an inclusive design process by undertaking empirical population surveys several times during the lifespan of a case and by engaging with cultural experts and local moral authorities.

The challenges of domination and exclusion must be anticipated and addressed. Expectations of the Court’s role in transitional justice efforts should also be managed; it is important to recognise that international criminal prosecution cannot meet all transitional justice needs. This might mean that the Court works alongside other mechanisms, and, in some situations, chooses not to intervene based on the preferences of the local population. It is not an easy task to conceptualise the ICC as a transitional justice mechanism, but the ‘bespoke transitional justice’ method can be used to redesign the relationship between the Court and the populations most affected by mass violence. By increasing perceptions of the Court’s legitimacy in such societies, such an approach offers the potential to more effectively entrench the norms it seeks to promulgate and promote peace and security in conflict-affected societies.

5 A synthesis of community-based justice and complementarity

Michael A. Newton
Introduction

The International Criminal Court (ICC) operates as the conceptual pinnacle of an interlocking system, one in which supranational and domestic court systems are meant to operate as a cohesive whole.Footnote 1 The Rome Statute was designed to address the ‘most serious crimes of international concern’ but to do so in line with the fundamental norm that the Court at all times and in all cases ‘must be complementary to national criminal jurisdictions’.Footnote 2 Thus, while it operates within the milieu of international politics and power, the Court’s very raison d’être is to seek justice for the most consequential crimes against the backdrop of an interconnected and often interdependent relationship with domestic criminal justice systems. Localised efforts to achieve justice for violations of societal norms are as desirable as they are inevitable.

‘Justice’ is, however, a far less straightforward concept than is commonly acknowledged, and often means different things to different people depending on their relationship to the crimes committed and the relevant cultural norms within the affected community or group.Footnote 3 The concept of ‘justice’ may be a vital need for refugees, victims and affected communities, but its multidimensional nature and subjective shape makes it a far more nuanced aim than is always possible through a formalised prosecution and punishment of responsible perpetrators.Footnote 4 Community-based dispute mechanisms can thus have a central role alongside formalised trials, to the extent that localised processes embody a culturally meaningful blend of restorative and retributive elements. There is often a corresponding value to seeing the Rome Statute offences through the metric of localised goals, since such offences may be widely seen as affairs between competing communities and sub-state actors; hence, the legitimacy of ‘justice’ turns on its societal resonance. Communities affected by hostilities also have legitimate interests in finding a balance between appropriate punitive procedures and a deliberate dimension of reintegration, especially insofar as community leaders may become the guarantors of a lasting and sustainable peace. By logical extension, the ICC must be open to these perspectives.

This chapter seeks to articulate an affirmative posture for the field of international criminal law and its institutions to adopt towards traditional justice processes. Based on his own experience in the transitions to peace in Kosovo and Timor-Leste, Lakhdar Brahimi strongly advocated local ownership and involvement in institutional reforms – an approach known as the ‘light footprint’ – by which capacity building emphasised the most limited international presence possible in conjunction with as many local staff as possible.Footnote 5 Brahimi’s involvement in the early phases of post-Taliban Afghanistan adopted the ‘light footprint’ approach as a guiding model. Apart from the deeply held beliefs of communities most affected by hostilities, traditional justice mechanisms are also tinged with political importance because they often operate against the backdrop of peace negotiations and the recurrence of tensions raised by domestic amnesty provisions.

In making this argument, the chapter first describes the interface between the concept of complementary and localised systems, and then details the ICC’s authority under Article 53 – particularly that of the Office of the Prosecutor (OTP) – to seek the larger ‘interests of justice’. Article 53 has been a neglected dimension of the Court’s power, particularly in its underdeveloped relationship to the complementarity regime. The following section examines recent trends in localised efforts to seek post-conflict stability in two situation-specific contexts – Uganda and Afghanistan – with a view towards illustrating the need for a holistic and comprehensive approach that balances formalised criminal systems with more community-based approaches. In the final section, the chapter articulates four specific recommendations designed to guide the Article 53 discretion of the ICC’s prosecutor and pre-trial chambers. These recommendations offer a series of affirmative steps that the Court could take to consciously implement a more consistent approach to incorporating local perspectives within its work.

Phrased another way, this chapter describes specific statutory changes that would permit a productive interface between ICC investigations and efforts by affected communities to achieve lasting peace. Taken together, the recommendations seek to ensure a cooperative and constructive relationship between a maturing Court and situation states, as well as with communities affected by conflict. Public articulation of standards for assessing the ‘interests of justice’ would provide needed consistency within the larger context of the complementarity regime and would shield the Court from charges of excessive politicisation in relation to controversial case dispositions. Indeed, a more developed understanding and subsequent implementation of the Court’s prerogatives under Article 53 could substantially strengthen its institutional aspiration to serve as a permanent supranational body that purports to advance the ‘interests of justice’.

Complementarity and community-based justice

Though it is the fulcrum that prioritises the authority of domestic forums, the precept of complementarity does not of itself logically lead to a homogenised system of national and supranational concurrent jurisdiction with a shared vision of ‘justice’. The ICC was not created to impede domestic processes or to impose its dominance over the prosecutorial practices and priorities of states with developed systems and demonstrated adherence to the rule of law.Footnote 6 The ICC does not have authority to take a case to trial until the issues associated with domestic jurisdiction and the admissibility criteria have been analysed and resolved in accordance with the framework of the Rome Statute. Properly understood and implemented, the admissibility regime is thus best conceived as a tiered allocation of authority to adjudicate. The creation of a vertical level of prosecutorial authority that operates as a permanent backdrop to the horizontal relations between sovereign states in large part depended on a delineated mechanism for prioritising jurisdiction while simultaneously preserving sovereign rights and serving the ends of justice.

Complementarity is designed to serve as a pragmatic and limiting principle, rather than as an affirmative means to target the nationals of states who are hesitant to embrace ICC jurisdiction and authority. The provisions of the Rome Statute preserve a balance between maintaining the integrity of domestic adjudications and authorising a supranational court to exercise power where domestic systems are inadequate. In preserving this balance, complementarity is best viewed as a restrictive principle rather than as an empowering one; while the ICC has affirmative powers as a supranational court, the textual predicates necessary to make a case admissible are designed to constrain the power of the Court. Hence the operative language in Article 17 mandates that ‘the Court shall determine that a case is inadmissible’ where the criteria warranting exclusive domestic authority are met as specified in the Statute itself.Footnote 7

The appropriate power of the ICC prosecutor will be sustained only by a relationship based on respect and an authentic partnership with sovereign authorities. As one Ugandan minister told me in confidence, ‘I think the ICC would be helpful if they cooperated with us.’ The text of Article 18 implicitly places control of investigations with states, unless the prosecutor can otherwise show that such a decision does not serve the interests of justice because the domestic investigation is automatically given primacy unless the prosecutor submits an application to the Pre-Trial Chamber.Footnote 8 The language is unequivocal: ‘the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.’Footnote 9 The burden thus lies with the prosecutor to prove that the state processes are insufficient. This structure implements state primacy by making the state investigation the default response of the Court. If the prosecutor wants to proceed with the case, he or she must do so only based on the affirmation of the Pre-Trial Chamber by demonstrating that the state’s investigation is inadequate.

The reliance on formal investigative and prosecutorial processes in these provisions is understandable but also inadequate, in the sense that the dominant needs of affected communities become tertiary. Indeed, neither domestic prosecutors nor international tribunals have the capacity to punish every perpetrator for every offence; in any event, the gravity threshold explicitly preserves space for domestic formal and informal authority in all cases ‘that are not of sufficient gravity to justify further action by the Court’.Footnote 10 The evolving discipline now termed ‘international criminal law’ has been described as ‘the gradual transposition to the international level of rules and legal constructs proper to national criminal law or national trial proceedings’.Footnote 11 States around the world have implemented domestic legislation to provide the basis in criminal law for punishing perpetrators of grave crimes. This is important because the era of accountability is well under way, and it is transpiring through an interrelated system of domestic and international forums. The complementarity regime is therefore a pragmatic necessity that will disappoint local leaders and innocent civilians who expect courts to ‘severely punish all war criminals with harsh prison sentences and to have a significant impact at the level of their communities’.Footnote 12 Empirical accounts demonstrate that survivors and victims in post-conflict environments ‘expected to be able to go about their daily lives without encountering people whom they claim are guilty of war crimes’.Footnote 13 Formalised processes that are centralised at the supranational level will almost always be inadequate to achieve this result. In fact, sustainable peace may depend on a synergy between formalised trials and a broader set of actions by local actors that are firmly rooted in sociological legitimacy.

The complementarity structure is thus necessarily strengthened by traditional justice mechanisms, subject to two important caveats. First, the provisions are framed in the context of official, formalised investigations or prosecutorial action and worded entirely in the present or past tense. There should be no space within this universalised body of international criminal law for personal vengeance or community vigilantism. Second, just as it is reasonable for the Court to require proof of good faith investigations and prosecutions by domestic authorities, one must be careful not to romanticise community-based processes. Localised alternatives to prosecution may well be under the control of persons who exercise inappropriate or undue influence. Community-based traditional mechanisms can enable corruption and human rights violations or further victimise individuals along local ethnic, religious or political divisions. To reiterate, the Court would be well served to develop concrete standards for assessing the efficacy of local processes to guide dialogue and decision-making of both Court and domestic criminal officials.

Article 53 and the ‘interests of justice’
The conceptual roots of integrating community-based efforts into the Court

In light of the inspiring growth of the field of international criminal law since World War II, it is often forgotten that the Moscow Declaration specifically favoured punishment through the national courts in the countries where the crimes were committed.Footnote 14 The military commissions established in the Far East also incorporated the principle that the international forum did not supplant domestic mechanisms.Footnote 15 The UN secretary-general is persuaded that ‘no rule of law reform, justice reconstruction, or transitional justice initiative imposed from the outside can hope to be successful or sustainable’.Footnote 16 For example, very few experts believe that a system of ‘justice’ can be effectively imposed upon a recalcitrant regime in conflict settings.Footnote 17 The complementarity regime is predicated on precisely this principle because ‘justice’ is most legitimate and ultimately effective when it is most responsive to the demands of the local population.

As a moral and practical imperative, permitting external actors to supersede the established set of domestic punishments and cultural traditions, would be a modern form of legal colonialism that would undermine international prosecutions.Footnote 18 Rather, the relative priorities of people affected by conflicts can be best gauged and addressed at more local levels. For some, justice means the retrieval of family remains from mass graves and the right to conduct a culturally appropriate burial. For others, disputes over property vacated under threat of imminent danger are the most pressing concern, while in other contexts the needs of refugees and religious leaders to seek restitution and reparations for damage done by former neighbours will predominate. In other words, community leaders and local political authorities deserve the frontline role in serving the needs of those whose interests they represent, but they should not be forced to subvert their own legal traditions as the price for gaining international support and assistance. Traditional mechanisms may well provide for their psychological, social and economic needs far better than any formalised prosecution.

Article 53 of the Rome Statute recognises this implicit relationship as a third dimension of justice alongside the formalised processes of the domestic state or the complexities of ICC authority; it is implicated only in circumstances where a case or situation is properly subject to the jurisdiction of the Court. The plain language requires the prosecutor to initiate an investigation unless he or she determines that there is not a ‘reasonable basis to proceed’.Footnote 19 As a logical extension, grounds for declining an investigation exist when there is no reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed (i.e. a formal investigation is unwarranted), or the case would be inadmissible under the complementarity regime (i.e. domestic authorities are engaged in formalised judicial or investigative processes). The most significant aspect of Article 53 stands in contrast to the formalised processes by permitting the prosecutor to defer investigation when ‘Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.’Footnote 20

Notably, the text of Article 53 is silent regarding a duty to consult with victims, domestic officials, religious leaders or prosecutors in a situation state. This stands in sharp contrast to the rights afforded the Security Council, as well as other states parties and political officials who are entitled by the Statute to an explanation of ‘his or her conclusion and the reasons for the conclusion’. In short, the communities most affected – who should be entitled to consultation or coordination when the prosecutor’s decision not to investigate or to prosecute is premised on the ‘interests of justice’ – are omitted. This disparity is puzzling in part because the affected communities are often able to assess the ‘interests of justice’ and have the most access to available information related to the perceived legitimacy of case dispositions, as well as insights into the most advisable order for bringing charges against perpetrators. Furthermore, in another ironic twist, although states parties that refer a situation (or the Security Council, in the case of an Article 13 referral) may request review when the prosecutor declines to investigate or prosecute based on the interests of justice, victims, domestic officials and affected communities have no basis for seeking such review.Footnote 21 Article 53 only stipulates that the Pre-Trial Chamber may review the prosecutor’s ‘interests of justice’ determination on its own initiative and that in ‘such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber’.Footnote 22

The prosecutor’s current policy on the ‘interests of justice’

Article 53 requires a synthesis of perspectives and goals within which the ICC and local communities share information and strive towards shared objectives. In a policy paper issued in September 2007, the OTP unsurprisingly noted that ‘The issue of the interests of justice, as it appears in Article 53 of the Rome Statute, represents one of the most complex aspects of the Treaty. It is the point where many of the philosophical and operational challenges in the pursuit of international criminal justice coincide (albeit implicitly), but there is no clear guidance on what the content of the idea is.’Footnote 23 As Juan Mendez memorably observed, ‘justice contributes to peace and reconciliation when it is not conceived as an instrument to either’.Footnote 24

Despite this complexity, the policy paper did not take the opportunity to clearly frame the role of formalised international justice as an interconnected and additive dimension of local needs and desires. It finds that the provisions of the Rome Statute ‘clearly favour the pursuit of investigations and cases’ when they meet the necessary predicates of jurisdiction and admissibility, and thus specifies that, ‘Taking into consideration the ordinary meaning of the terms in their context, as well as the object and purpose of the Rome Statute, it is clear that only in exceptional circumstances will the Prosecutor of the ICC conclude that an investigation or a prosecution may not serve the interests of justice.’Footnote 25 However, unlike the objective criteria specified in the Statute for assessing admissibility of a particular case, the Court can never implement a wholly monopolistic interpretation of the ‘interests of justice’. This is because the subjective valuations of the affected community or situation state will always be relevant when weighing the merits of investigations and prosecutions, when warranted by the evidence and circumstances.

Two important applications follow from this generalised philosophical construct. First, focusing on the narrowly conceived view of the ICC as the instrument of international accountability, the policy paper pledges to work ‘constructively with and respect the mandates of those engaged in other areas’ but insists that the ‘judicial mandate’ operates ‘independently’ and implicitly superior to other considerations arising from community perspectives. While expressly noting the ‘complementary role that can be played by domestic prosecutions, truth seeking, reparations programs, institutional reform and traditional justice mechanisms in the pursuit of a broader justice’,Footnote 26 the paper omits any mention of specific measures to accomplish such a synergy between formalised prosecutorial efforts and the larger efforts to achieve justice within a given society and situational context. There is no affirmative vision that postulates the OTP’s vision of the factors that could, in the aggregate, warrant a finding that the ‘interests of justice’ mitigate against further investigation or prosecution. Indeed, the paper expressly sets forth the aspects that the prosecutor will not consider when weighing the ‘interests of justice’, but there is nothing explicit in the policy that leads to a cohesive sense of what factors can, and should be, considered as serving justice. Hence, affected states and communities are left to guess what factors might or might not be determinative.

Second, and more controversially, the OTP’s paper juxtaposes the ‘interests of justice’ criteria against the more problematic controversy surrounding the appropriate role for the ICC as an instrument of international diplomacy. The policy states in its introduction that ‘there is a difference between the concepts of the interests of justice and the interests of peace and that the latter falls within the mandate of institutions other than the Office of the Prosecutor’.Footnote 27 In fact, the secretary-general of the United Nations has stated that ‘Justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives’.Footnote 28 Nevertheless, official OTP policy remains at the time of this writing that a broad conception of the Article 53 mandate would violate the very object and purpose of the Rome Statute. This argument assumes that the formalised trials in the Court play an irreplaceable role as the sole arbiter of international justice, which itself contravenes the well-established complementarity framework. This is even more problematic when read in light of Richard Goldstone’s caution that ‘the word “justice” is demanding … yet few would aver that it is “demanding” in the sense that it is always retributive’.Footnote 29 The OTP policy makes no allowance for a situation state to represent the human interests of its citizens, apart from filing formal challenges to admissibility under the procedures of Article 19. Finally, it bears noting that the narrowest possible framing of Article 53 reflected by the OTP policy is absolutely unsupported by the diplomatic history. As William Schabas has noted, ‘an amendment to article 53(1)(c) to the effect that “the interests of justice shall not be confused with the interests of peace” would “surely not have met with consensus”’.Footnote 30

In sum, rather than setting out an affirmative and powerful vision of a synergy between formalised prosecutions, whether at the domestic or international level, and the far more common usage of community-based justice mechanisms, the current OTP policy paper provides little clarity for the future. This represents an intentional trade-off of overall legitimacy and efficacy in favour of expediency. At the time of writing, there is also no authoritative statement from the Court regarding the conditions or circumstances in which domestic action would warrant abeyance of supra-international ICC authority in a particular case. This is a significant concern for two reasons: 1) it permits allegations that a particular approach to a particular perpetrator is ad hoc and that future decisions are not taken in the context of a consistent and defensible policy, and 2) it clouds the relationships with domestic officials, victims and affected communities in ways that hinder effective investigations and movement towards both sustainable peace and justice.

Local ownership for localised objectives: Uganda and Afghanistan

Justice that benefits from a sense of local-level ownership is actually a mosaic of prosecutions, accountability, reconciliation, reparations, institutional reform, reintegration, truth-telling and retribution. The artificial polarisations between peace and justice have clouded debates about the most appropriate ways to address conflict and its aftermath, implying either/or choices when combinations of these elements often better reflect popular perceptions and lead to more effective practical strategies. As framed by the aspiration of a leading Ugandan lawyer, the creation of a modern holistic system of accountability for international crimes should serve as the interface of the ICC and domestic processes that ‘link together in an inseparable synergy the restorative/traditional, official and international justice mechanisms’.Footnote 31

Uganda

In response to accusations from the ICC that the use of community-based justice practices actually reinforce impunity in Uganda, a leading local NGO expert claimed that ‘if you are pursuing peace then justice is not optional, it is an integral part of peace. Done wrongly (as we would argue has happened in northern Uganda), the pursuit of international justice can undermine the pursuit of peace, but done correctly’ using ‘a whole array of transitional justice approaches, the pursuit of peace and the pursuit of justice should and can go hand in hand’.Footnote 32 The single-minded and mechanical pursuit of punitive justice by the ICC in complex situations like Uganda, where victims want an immediate end to their anguish, has been described by local actors as ‘iniquitous, especially in the presence of more pragmatic efforts like peace negotiations’.Footnote 33 The current ICC Article 53 policy paper seems to reaffirm this single-minded focus on prosecution as the only viable option for achieving justice.

The controversies over the role of the ICC in Uganda, which led in a linear fashion to the policy paper on Article 53, arose from the history of the conflict and the structure of the Juba Accords themselves. The Lord’s Resistance Army (LRA) rampaged across northern Uganda for nearly two decades, in the process abducting children, murdering families and terrorising villages across northern Uganda. On 21 January 2000, Uganda adopted an Amnesty Act providing unconditional amnesty for anyone who had engaged in armed rebellion against the government since the ‘26th day of January 1986’ and who agreed to renounce and abandon such rebellion.Footnote 34 The act subject to amnesty was broadly conceived,Footnote 35 amidst the declaration that ‘amnesty means a pardon, forgiveness, exemption or discharge from criminal prosecution or any other form of punishment by the State’. The Ugandan Constitutional Court has since held that even a former child soldier who rose to become a senior LRA commander and who was captured by government forces remains constitutionally entitled to amnesty for his criminal acts even though he failed to claim amnesty until after his detention.Footnote 36 At the time of writing, nearly 27,000 individuals have received amnesty pursuant to the act, and Uganda is more or less at peace.

The Agreement on Accountability and Reconciliation (commonly referred to as the ‘Juba Accords’) was consciously negotiated in light of the complementarity framework of the Rome Statute, and shaped by the refusal of LRA leaders to submit to the authority of the ICC. What observers have commonly termed the ‘Spirit of Juba’ actually represented the kind of sophisticated synthesis that one might well have expected to arise from a formal OTP policy with respect to the Article 53 ‘interests of justice’ criteria. The preamble of the Agreement (the Annexure has no preamble) sets out the purpose of the Agreement to prevent impunity, to promote redress to promote reconciliation and to achieve peace. The second paragraph also clarifies that the goal is ‘lasting peace with justice’ – evidently a nod to the peace versus justice debate triggered by the ICC warrants of arrest against LRA leadership.Footnote 37

The Juba Accords contain a number of different mechanisms, which often explicitly or implicitly subsume the language of the Rome Statute, and the complementarity framework in particular. According to Clause 1, the term ‘alternative justice mechanisms’ covers not only traditional mechanisms but also any mechanism that is ‘not currently administered in the formal courts’ of Uganda. Clause 5.3 of the Agreement provides that the alternative justice mechanisms shall consist of traditional justice mechanisms, as well as ‘alternative’ mechanisms or features within the formal proceedings, such as ‘alternative sentences’. In addition, the term ‘formal’ appears in several places, for example in Clause 4.2, which speaks of ‘prosecutions and other formal accountability proceedings.’ This is culturally significant due to the wide variation between regional practices within the situation state.Footnote 38

Afghanistan

The Afghan Ministry of Justice continues to implement a halting and conflicted process of determining the optimal blend of localised mechanisms amidst a revitalised but fragile formal justice system. Approximately 80 per cent of the private civil and criminal disputes in Afghanistan are resolved through some form of community-based dispute resolution process, rather than in a courtroom or, in the case of most rural communities, the district office.Footnote 39 This has led many analysts to describe Afghanistan as having two justice systems: a ‘formal’ (state-run) judicial sector and an ‘informal’ (community-based) judicial sector. Where they do exist, locals generally view the formalised processes as corrupt, slow, expensive, inept and less legitimate than the long-standing customary practices emphasizing local resolution of disputes.Footnote 40 In a recent survey, Afghan citizens complained that ‘interactions between the citizen and the state resemble a bazaar economy, where corruption has become the nation’s new currency’.Footnote 41 These factors – corruption in the public judicial process and widespread acceptance of customary practices – explain why community justice is such a vital institution in Afghanistan.

The ‘informal’ system is comprised of local dispute resolution councils, which are led by community elders and are convened on an ad hoc basis to resolve specific disputes arising between members of a community as well as between different communities. More than just a customary practice, Jirga is ‘an historical and traditional institution and gathering of the Afghans, which over the centuries, has resolved our nation’s tribal and national political, social, economic, cultural and even religious conflicts by making authoritative decisions’.Footnote 42 When reliable evidence, in the form of either witness testimony or documentation, is unavailable, jirgamaran render islahi decisions – or ‘equity-based’ decisions – to keep peace within the community.Footnote 43

The continued vitality of community-based justice in post-Taliban Afghanistan owes largely to the elders, or jirgamaran, who resolve disputes; they are widely trusted by the community, and as such are thought of by community members as being ‘just’ and having the wider community’s interest in mind.Footnote 44 As one villager who has served as a jirgamaran put it, the elders who are selected to locally resolve disputes ‘are familiar to us and respected by the people – and they should resolve our disputes and problems honestly and respect the rights of the villagers’.Footnote 45 These local elders possess a type of authoritative power that derives not from any formal affiliation with the state or its ability to physically enforce its directives, but rather from their longevity and the perception that their judgments are an organic part of community life. ICC officials seldom share these perceptions in situation states.

Furthermore, a categorical distinction between an ‘informal’ and ‘formal’ justice sector contains several inaccurate assumptions: (1) that these two modes of dispute resolution are separate, distinct and unconnected in practice; (2) that the existence of one sector undermines the legitimacy and efficacy of the other and (3) that policy-makers and military analysts should work towards the creation of one dominant sector to serve as Afghanistan’s primary modality for both public and private dispute resolution. ICC officials also commonly voice these perspectives.

It would be a mistake, however, to presume that public and private institutions in modern Afghanistan operate either in isolation or in tension. For many Afghan citizens, the interface of traditional and formal processes permits the freedom to turn to one where the other has not succeeded or would be predictably inappropriate. Many Afghans consider a variety of factors in choosing which forum to resolve their disputes, such as the preference for local resolutions by arbiters who have a deep knowledge of them, their dispute and their community; the desire for speedy resolution of disputes and the emphasis on restoring communal stability over retribution.Footnote 46 Thus, while a cleavage between ‘formal’ and ‘informal’ justice may be superficially appealing, it ignores the nuanced interaction between state justice institutions, administrative bodies and local dispute resolution councils, as well as the role customary practices have played in creating political stability in areas of the country where formal governmental authority has been undermined.Footnote 47

Proposals for reimagining the ICC’s role

In his inaugural address, the first ICC prosecutor was correct in noting that, ‘As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.’Footnote 48 The provisions of the Rome Statute provide for a triangular relationship whereby three sets of actors should operate in a productive tension with each other: the local actors who will directly benefit from the restoration of the rule of law; the sovereign authorities that are responsible for protecting the human rights of the population, but also for creating the conditions of societal stability; and the appropriate role of the ICC alongside the domestic judiciary.

Yet the relationship between the ‘interests of justice’ under Article 53 and the larger admissibility regime remains largely undeveloped, even though the relationship between the efforts of the ICC and domestic institutions may well represent the most definitive measure of success over the long-term life of the Court. After all, the existential imperatives for the formation and costs of the supranational court lie in the overarching goal of creating a productive relationship with local accountability efforts that makes genuine progress towards the commonly proclaimed goal of ‘ending impunity for the most serious crimes of concern to mankind’. This section offers a series of specific considerations that might well be incorporated into an amended ICC policy with respect to the ‘interests of justice’.

Specific rationales for determining the ‘interests of justice’

In the first place, a revised Article 53 policy should clearly articulate a set of factors that help to determine the deference that should be accorded to traditional processes. In effect, this is a two-level problem whereby domestic prosecutors must make a similar determination vis-à-vis traditional mechanisms, even as the ICC undertakes its own independent analysis of the ‘interests of justice’ within the meaning of the Rome Statute. Afghanistan provides a good example of traditional processes for seeking justice and resolving disputes that function to fill a necessary void in state authority. Nevertheless, there have been many instances when the traditional processes have been co-opted by Taliban influences. A revised Article 53 policy should thus acknowledge that any process demonstrably controlled by a specific religious, tribal or other informal faction should be entitled to less deference than purely communal processes. Phrased another way, when traditional processes provide a functional substitute for the conduct of hostilities, they ought to be substantially discounted, if not disregarded.

Second, the very nature of conflict may well have altered the distribution of power within a region or village, or indeed between competing clans or sects. For instance, where local processes have been hijacked, they may well be seen as counterproductive to the twin interests of lasting stability and reconciliation. If local processes have been overcome by intrinsic corruption to the degree that they have lost the communal power of reconciliation, they should also be entitled to less deference. Traditional authorities will generally be the most sensitive to shifts in the power relationships within a region, and the corollary relationships between domestic prosecutors and local populations should be informed by these shifts. As a logical extension, when local accountability mechanisms operate to entrench gender inequalities or to subvert established internationally recognised human rights, they cannot be presumed to represent the ‘interests of justice’ simply by virtue of their ‘local’ provenance.

A revised Article 53 policy should also require that a specific set of factors be developed in conjunction with prosecutors and local authorities in every case where the prosecutor moves towards initiation of an investigation. This would have the effect of making the ‘interests of justice’ a regular and required consideration, albeit one that would commonly be insufficient to warrant abeyance of an investigation. The criteria listed in Article 53 itself are intended neither to be dispositive nor to deny a more comprehensive consideration of the circumstances of each offence. A revised policy paper could state, for example, that, ‘the choice of forum for the adjudication of any particular case shall depend, amongst other considerations, on the nature and gravity of the offending conduct, the age and interests of the victims, and the role of the alleged perpetrator in that conduct’. In particular, such determinations should be required to rest upon an individualised assessment of the alleged offences in light of the assessed operation of other domestic courts, traditional justice mechanisms and any process for national truth-telling or historical documentation. A determination not to proceed with a particular case, and the reasons warranting such a determination, should be prepared in writing and provided to the Pre-Trial Chamber’s pro forma. Similarly, the ICC should provide such determinations to national or local prosecutorial authorities upon request.

In reaching these determinations, the ICC should clearly articulate the factors within each case and the charges under consideration that indicate what interests are served (or in many cases left unprotected) by the interaction of traditional justice mechanisms as an alternative to formalised prosecutions. These factors would include: ensuring accountability for those perpetrators whose prosecution is deemed essential, promoting truth-telling and contributing to the historical record of wrongdoing, facilitating reparations and providing available redress for victims of international crimes and human rights violations and facilitating reconciliation within the affected communities and in the situation state more generally.

These written determinations could go a long way towards dispelling arguments that the ICC prosecutor’s decisions hinge on an inappropriately politicised rationale, personal vendetta or other inappropriate factors. Lastly, a new deliberative policy with designated criteria could well serve to provide specific legal rationale for the declination of prosecutorial action. This demonstration of the ‘interests of justice’ might well have a beneficial effect on traditional processes, and would at a minimum strengthen the triadic relationship between the ICC, domestic authorities and local actors as one based on transparency, mutual respect and comity.

Closer cultural coordination

A revised prosecutor’s policy should clearly establish coordination mechanisms for feedback and consultation with both domestic justice officials and community leaders. This would be achieved through the designation of a formal point of contact and clear timelines for communication within the policy. A formal process of consultations is vital to ensure mutual understanding. Nor should linguistic difficulties be overlooked: in Uganda, for instance, the concepts of ‘amnesty’, ‘forgiveness’, ‘reconciliation’ and cessation of criminal punishments are not conceptually distinct in the Lwo language.Footnote 49 Similarly, loose dialogue of ‘forgiveness’ may also mean different things to different communities; therefore, communication between the ICC and affected communities should be strong and constant. Finally, Court representatives must have absolute granularity regarding the circumstances of each particular perpetrator and the related but distinct goals of reconciliation or atonement at the individual and the collective levels.

In practice, culturally sensitive communication accompanied by a clear set of guidelines can help focus investigative efforts in ways that serve the ‘interests of justice’. The traditional models of justice in Afghanistan seek restitution rather than retribution, ‘compensation for the wrong done and social reconciliation, not the punishment of the perpetrator’.Footnote 50 Yet formalised prosecutions may well be needed to achieve those purposes. The phrase ‘after full accountability’ is also used in the Juba Accords in the definitions of all the traditional mechanisms, but there is no correlative explanation of the interaction of those terms. Hence, formalised prosecutions might well be appropriate for perpetrators who participate in traditional systems involuntarily, who do not follow through on promised restitution or whose expression of remorse was demonstrably insincere. Similarly, traditional processes that do not serve inter-communal interests or lasting social cohesion should be entitled to less deference. If a traditional process fails to adequately address inter-communal gaps, then the overlay of actual prosecution might well transcend the communal divide. These often countervailing interests must be carefully balanced in practice through clear and consistent communications channels.

Addressing amnesty

The role of amnesties in the context of situation states remains controversial because even selective grants of amnesty have the potential to (re)ignite a false dichotomy between peace and justice. Some large-scale, so-called blanket, amnesties have been implicitly accepted as a matter of state practice.Footnote 51 There is scant empirical support for the proposition that amnesty for the class of crimes within the jurisdiction of the Rome Statute will predictably lead to a culture of impunity that incentivises violence.Footnote 52 The suggestion of the Special Court for Sierra Leone that a domestic amnesty is prohibited as a matter of customary international law and can never have preclusive effect is at best unsupported, and at worst corrosive, to the harmonised system of cooperative synergy that provides the conceptual model underlying the Rome Statute.Footnote 53 One scholar has thus concluded that the combination of amnesty with some form of broader truth-seeking ‘largely defines state practice – massively and pervasively, throughout the world’.Footnote 54 Indeed, in Afghanistan, as in other conflict settings, discussion of the appropriate role for amnesties, and the conditions precedent for achieving a lasting peace have been a persistent thread over the past decade of conflict.

The current OTP Article 53 policy provides no guidance over the circumstances in which the authority of the ICC might be secondary to an ongoing domestic amnesty process. It is also conceptually possible that ICC prosecution might in certain circumstances be entirely appropriate to supersede domestic amnesty in suitable circumstances. While the premise that the Court may assert jurisdiction even in the face of a domestic amnesty (as warranted by the particular circumstances of a particular perpetrator) is incontrovertible, a revised policy could nevertheless contribute to a consistent set of criteria for assessing when the ‘interests of justice’ warrant supranational prosecution. Factors that should provide guidance with respect to the relationship between domestic amnesties and the circumstances of a particular perpetrator might include:

  • Whether the perpetrator has complied with any conditions attached to the amnesty, such as restitution or active efforts to eliminate intra-community tensions;

  • Whether there is any other state that could exercise criminal jurisdiction over a particular subset of the offences otherwise subject to amnesty;

  • Whether the amnesty itself was a central imperative to ending hostilities or a self-serving afterthought;

  • Whether a perpetrator holding amnesty from domestic prosecution has nevertheless become a focal point of tension within a community or is re-victimising civilians;

  • Whether the amnesty operates in tandem with other accountability measures, such as truth-telling or traditional community processes;

  • Whether the amnesty was enacted through democratic procedures and lengthy debates, or imposed by authoritarian decree;Footnote 55 and

  • Whether prosecution in the domestic state might be permitted by the terms of the amnesty, but foreclosed by other aspects of the domestic criminal procedure.

Adding reciprocal rights to Articles 53 and 93

Despite its complexity, the Rome Statute nowhere specifies a regime for requiring a harmonisation between the investigative and prosecutorial efforts of the ICC and those of domestic states. The OTP is obligated to notify ‘all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction’ prior to proceeding with a proprio motu investigation. This obligation is subject to limitation based on the needs of confidentiality and the preservation of evidence, but is notably not accompanied by any obligation to assist a state that is both willing and able to prosecute or investigate a perpetrator. There is no correlative process accompanying notification for actually providing assistance to those states that are willing and able to initiate investigations and prosecutions, where appropriate, using the applicable domestic procedures. In addition, neither the prosecutor nor the Pre-Trial Chamber is obligated to consult with state or local officials when considering whether to suspend investigation or decline prosecution based on the interests of justice.

This gap in the Rome Statute structure creates a one-sided scheme whereby states parties must comply with their obligations to cooperate but the Court need not reciprocate. This gap is especially prominent in the context of Article 53, in which the process of ascertaining the ‘interests of justice’ should always involve a collaborative discourse. Simply put, the use of traditional or customary mechanisms that might well serve to sustain the conditions of a lasting peace need not be facilitated by the Court. The Statute therefore creates an imbalance that, at best, undermines the rights of states to exercise complementarity, and at worst creates barriers to the effective and efficient use of domestic forums that are capable of assisting the efforts of the Court to create a comprehensive system of criminal accountability. To effectuate a productive collaboration, Article 93 (10)(a) should be amended to impose an affirmative duty on the Court, such that:

The Court shall, upon request, cooperate with and provide assistance to a state party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting state.

In addition, Article 54 (3)(c) should permit the prosecutor to interface with community leaders and organisations in making the ‘interests of justice’ assessment and should be amended to read as follows: ‘Seek the cooperation of any State, local, or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate; in particular when analysing whether there are substantial reasons to believe that an investigation would not serve the interests of justice within the meaning of Article 53.’Footnote 56

These basic changes, while textually minimal, would signal a profound shift of the Court’s current approach towards domestic states and local communities. They would better harmonise communication between states parties and the ICC, specifically regarding investigations. Amending Article 93 would help foster a climate of trust and cooperation between states and the Court. These amendments balance the operational aspects of a viable complementarity regime by providing for the sharing of information in both ICC and domestic investigations. Conversely, Article 53 (3) should add a textual basis for affected states, victim groups and community leaders to provide informed input to the OTP in its assessment of the ‘interests of justice’. Improving the constructive dynamic between the Court, domestic prosecutors and local leaders would help to harmonise decision-making with respect to each perpetrator under the specific circumstances of each charge.

Conclusion

The pursuit of ‘justice’ is socially and politically complex. The decade plus of practice since the entry into force of the Rome Statute reveals that the Court’s institutional role will be contested by families, communities and victims affected by conflict. Just as the nature of the relationship between the state and the supranational court is evolving, the balance among prosecutions, reintegration, forgiveness, reparations, truth-telling and apology is itself a delicate process, often in flux. Although the complementarity regime focuses exclusively on formalised processes in allocating power between the ICC and situation states, the external interference of the Court may well be a controversial and complex aspect of ‘justice’ from the perspective of victims and community leaders. Furthermore, to ameliorate what will be a recurring problem as it begins its second decade of operation, the ICC needs to develop a consistent and analytically defensible framework for understanding community-based mechanisms in light of the ‘interests of justice’ analysis permitted under Article 53.

If the ICC ploughs new jurisprudential pathways by imposing its determinations on domestic systems in a manner that undermines local preferences and overrides local conceptions of the rule of law, it will continue to be subject to charges of legal neo-colonialism in violation of its own central tenets. These are not idle fears. Early in its existence, the Court has already been presented with an array of complexities and challenges that underscore its inability to serve as the sole forum for ‘international justice’. The Court’s long-term viability thus depends upon sustaining a cooperative synergy with domestic jurisdictions, both states parties and other states, which leads to a sense that the Court and local jurisdictions share a common objective. What I term a ‘cooperative synergy’ entails a well-crafted and consciously implemented approach to incorporating local perspectives in the pursuit of international criminal accountability.

Footnotes

1 In whose name? The ICC and the search for constituency

1 The question of the ‘we’ of international criminal justice has been explored in more detail by Immi Tallgren. See I. Tallgren, ‘We Did It? The Vertigo of Law and Everyday Life at the Diplomatic Conference on the Establishment of an International Criminal Court’, Leiden Journal of International Law, 12 (2004), 683. This chapter is less directly interested in this ‘we’ than it is in its implicit ‘them’, but the two are obviously related.

2 See generally M.C. Suchman, ‘Managing Legitimacy: Strategic and Institutional Approaches’, Academy of Management Review, 20 (1995), 571.

3 A. Fichtelberg, ‘Democratic Legitimacy and the International Criminal Court: A Liberal Defence’, Journal of International Criminal Justice, 4 (2006), 765.

4 M. Glasius, ‘Do International Criminal Courts Require Democratic Legitimacy?’, European Journal of International Law, 23 (2012), 43.

5 S. Kendall and S. Nouwen, ‘Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood’, Law and Contemporary Problems, 76 (2014), 235.

6 F. Carrington and G. Nicholson, ‘The “Victims” Movement: An Idea Whose Time Has Come’, Pepperdine Law Review, 11 (1983), 1.

7 J. Spiropoulos, ‘L’individu et Le Droit International’, Recueil des cours de l’Académie de droit international de La Haye, 31 (1929), 191270.

8 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (New York: Cambridge University Press, 2005).

9 ‘Prosecuting Crimes in the Name of International Justice’, Amnesty International, www.amnestyusa.org/our-work/issues/international-justice/international-criminal-court.

10 Consider, for example, Paul Kagame’s typical assertion to the African Union that ‘It is evident that political bias, control and flawed methodology are being deployed in the name of International Justice.’ Paul Kagame, ‘Statement by H.E Paul Kagame, President of the Republic of Rwanda at the 21st Ordinary Session of the Assembly of the Union’ (Addis Ababa, 26 May 2013).

11 R. Teitel, Humanity’s Law (New York: Oxford University Press, 2011).

12 R.A. Wilson, ‘Crimes against Humanity and the Conundrum of Race and Ethnicity at the International Criminal Tribunal for Rwanda’, in I. Feldman and M. Ticktin (eds.), In the Name of Humanity: The Government of Threat and Care (Durham: Duke University Press, 2010), 28.

13 R. Fine, ‘Crimes against Humanity: Hannah Arendt and the Nuremberg Debates’, European Journal of Social Theory, 3 (2000), 293.

14 D. Levy and N. Sznaider, ‘The Institutionalization of Cosmopolitan Morality: The Holocaust and Human Rights’, Journal of Human Rights, 3 (2004), 143, 144.

15 W. Driscoll, J.P. Zompetti, and S. Zompetti, The International Criminal Court: Global Politics and the Quest for Justice (New York: International Debate Education Association, 2004), 53.

16 Indeed that process may be reminiscent of earlier efforts at imagining ‘society’ as an existing whole justifying intervention in its name. B. Beck, ‘The Politics of Speaking in the Name of Society’, Social Problems, 25 (1977), 353.

17 G. Abraham and K. Hopkins, ‘Bombing for Humanity: The American Response to the 11 September Attacks and the Plea of Self-Defence’, South African Law Journal, 119 (2002), 783; F. Harhoff, ‘Unauthorised Humanitarian Interventions – Armed Violence in the Name of Humanity?’, Nordic Journal of International Law, 70 (2001), 65; N.D. White, ‘The Legality of Bombing in the Name of Humanity’, Journal of Conflict and Security Law, 5 (2000), 27.

18 I. Feldman and M. Ticktin, In the Name of Humanity: The Government of Threat and Care (Durham: Duke University Press, 2010).

19 Levy and Sznaider, ‘The Institutionalization of Cosmopolitan Morality’.

20 A. Branch, ‘International Justice, Local Injustice’, Dissent, 51 (2004), 22, 25.

21 M. Glasius, The International Criminal Court: A Global Civil Society Achievement (London/New York: Routledge, 2006); M. Glasius, ‘Expertise in the Cause of Justice: Global Civil Society Influence on the Statute for an International Criminal Court’, in M. Glasius, M. Kaldor and H.K. Anheier (eds.), Global Civil Society Yearbook (Oxford: Oxford University Press, 2002), 137.

22 S. Sur, ‘Vers Une Cour Pénale Internationale: La Convention de Rome Entre Les ONG et Le Conseil de Sécurité’, Revue générale de droit international public, 1 (1999), 103.

23 E. Haslam, ‘Subjects and Objects: International Criminal Law and the Institutionalization of Civil Society’, International Journal of Transitional Justice, 5 (2011), 221.

24 See further Chapter 3 by Koller in this volume.

25 See further Chapter 18 by Kersten in this volume.

26 The idea that the ICC is destined to eventually become universal runs deep in the discourse. For example, the Coalition for the International Criminal Court (CICC) insists that ‘In order for the International Criminal Court to succeed in its universal project, it needs an increasing majority of the world’s nations to join the Rome Statute.’ See ‘A Universal Court with Global Support’, Coalition for the International Criminal Court, www.iccnow.org/?mod=universalcourt.

27 S/RES/1593 (2005), 31 March 2005, para. 7 (Darfur referral). W.M. Reisman, ‘On Paying the Piper: Financial Responsibility for Security Council Referrals to the International Criminal Court’, American Journal of International Law, 99 (2005), 615.

28 S. Kendall, ‘Commodifying Global Justice: Economies of Accountability in the International Criminal Court’, Journal of International Criminal Justice, 13 (2015), 113.

29 See, e.g., ‘Ceremony for the Solemn Undertaking International Criminal Court’, Statement by the President of the Assembly of States Parties Ambassador Tiina Intelmann, 12 December 2013. ‘The Statute reflects our determination to put an end to impunity’ [emphasis added].

30 ICC Fact Sheet on the Assembly of States Parties, available at www.icc-cpi.int/en_menus/asp/publications/factsheet/Documents/ASP-Factsheet-2013-v4-ENG-web.pdf.

31 Article 134 of the Rules of Procedure and Evidence was amended, largely at Kenya’s behest, so that defendants who have ‘extraordinary public duties at the highest national level’ and who are not the subject of an arrest warrant can be exempted from attending their trial, as long as they are represented.

32 ‘Justice at Risk: States Parties to the ICC Statute Concede to Political Pressure’, FIDH (28 November 2013).

33 ‘Call for African ICC States Parties to Affirm Support for the ICC at the Assembly of States Parties Session’, Human Rights Watch (12 November 2013).

34 C.A. Bradley and J.G. Kelley, ‘The Concept of International Delegation’, Law and Contemporary Problems, 71 (2008), 1, 22.

35 W.A. Schabas, ‘Complementarity in Practice: Some Uncomplimentary Thoughts’, Criminal Law Forum, 19 (2008), 5.

36 ‘ICC a European Tool, Libya Says’, News24, 28 June 2011.

37 T. Skouteris, The Notion of Progress in International Law Discourse (The Hague: T.M.C. Asser Press, 2010).

38 ‘Beginning of ICC Trial against Ruto and Sang Is a Historical Opportunity for Victims and for the Kenyan Society to Face the Truth and Find Justice’, FIDH (9 September 2013) (FIDH, ‘Beginning of ICC Trial’).

39 D. Orrin Butare, ‘Hutus in Horror Jails Await Tutsi “Justice”’, The Independent, 1 May 1995.

40 See further Chapter 11 by Clarke in this volume.

41 Kendall and Nouwen, ‘Representational Practices’, 239, citing the ICC Prosecutor.

44 This draws attention away from the problematic inter-state distributive dimensions of the ICC’s work. The ‘Why Africa?’ question, for example, can be marginalised by an appeal to ‘this is what these victims here want’.

45 K.M. Clarke, Fictions of Justice: The International Criminal Court and the Challenges of Legal Pluralism in Sub-Saharan Africa (New York: Cambridge University Press, 2009), 21.

46 Kendall and Nouwen, ‘Representational Practices’. See further Chapter 12 by Fletcher in this volume.

47 The Sudanese minister for foreign affairs, Al-Samani al Wasilah, is reported to have pointed out that ‘the Sudanese judiciary should be given the opportunity to complete its task in accordance with the conditions of the Sudanese society which is more interested in the reconciliations system and cordial solution than the judicial one’. See A. Al-Awsat, ‘No Dialogue with ICC- Sudanese Minister’, Asharq Al-Awsat, 23 July 2008.

48 ‘The unsung heroes of these proceedings are the victims and witnesses who, despite a difficult and sometimes threatening environment, have committed themselves to the search for truth and justice. Their engagement will benefit the whole Kenyan society.’ FIDH, ‘Beginning of ICC Trial’.

49 See G. Oteino’s memo from Kenyans for Peace with Truth and Justice (KTPJ), ‘The ICC has always enjoyed high public support in Kenya; as of January 2013, 66% of Kenyans said they supported the ICC prosecutions. Surely 66% is of far greater significance than the figure cited by Kamau as evidence of “overwhelming support” of the indictees.’ ‘KPTJ Memo Responding to Kenyan Ambassador’s Letter to the UNSC on ICC Cases, Africa Centre for Open Governance’, 7 May 2013, available at www.africog.org/content/kptj-memo-responding-kenyan-ambassadors-letter-unsc-icc-cases.

50 See Fletcher (Chapter 12).

51 F. Ogola, ‘Uganda Victims Question ICC’s Balance’, Institute for War and Peace Reporting, ACR Issue 261, 14 June 2010. See further Chapter 6 by Oola in this volume.

52 I. Wairimu, ‘Uganda: Victims Waiting for ICC Justice’, The Independent, 3 February 2012.

53 Kendall and Nouwen, ‘Representational Practices’, 256.

54 See Ian Clark’s recent work on the ‘international social practice of the vulnerable’ and the way in which it serves to constitute the notion of an ‘international society’. I. Clark, The Vulnerable in International Society (Oxford: Oxford University Press, 2013), 2.

2 Justice civilisatrice? The ICC, post-colonial theory, and faces of ‘the local’

1 See OECD, Development and Assistance Committee, ‘Development Partnerships in the New Global Context’, May 1995; B. Pouligny, Supporting Local Ownership in Humanitarian Action, Humanitarian Policy Paper Series (Berlin: Global Public Policy Centre, 2009); T. Donais, Peacebuilding and Local Ownership: Post-conflict Consensus-Building (London: Routledge, 2012).

2 Ownership is not strictly tied to powers of possession. It includes ‘different components of local involvement, participation, capacity, accountability and empowerment’. See Pouligny, Ownership, 9.

3 See generally O. Richmond, ‘Emancipatory Forms of Human Security and Liberal Peacebuilding’, International Journal, 62 (2007), 459478.

4 See Report on the Panel on United Peace Operations, UN Doc. A/55/305, S/2000/809, 21 August 2000.

5 S. Chesterman, ‘Ownership in Theory and in Practice: Transfer of Authority in UN Statebuilding Operations’, Journal of Intervention and Statebuilding, 1 (2007), 3; T. Donais, ‘Empowerment or Imposition? Dilemmas of Local Ownership in Post-Conflict Peacebuilding Processes’, Peace & Change, 34 (2009), 3.

6 See UN Secretary-General, Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, UN. Doc. S/2004/616, 3 August 2004, para. 17.

7 See R. Paris, ‘International Peacebuilding and the “Mission Civilisatrice”’, Review of International Studies, 28 (2002), 637.

8 D. Roberts, Global Governance and Liberal Peacebuilding: Beyond the Metropolis (London: Routledge, 2011).

9 See D. Sharp, ‘Addressing Dilemmas of the Global and the Local in Transitional Justice’, Emory International Law Review, 29 (2014), 71, 73.

10 A. Hinton (ed.), Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence (New Brunswick, NJ: Rutgers University Press, 2010); L. Waldorf, R. Shaw, and P. Hazan (eds.), Localizing Transitional Justice: Interventions and Priorities After Mass Violence (Stanford: Stanford University Press, 2010); P. Lundy and M. McGovern, ‘Whose Justice: Re-Thinking Transitional Justice from the Bottom Up’, Journal of Law and Society, 35 (2008), 265; E. Baines, ‘The Haunting of Alice: Local Approaches to Justice and Reconciliation in Northern Uganda’, International Journal of Transitional Justice, 1 (2007), 91; P. Vinck and P. Pham, ‘Ownership and Participation in Transitional Justice Mechanisms: A Sustainable Human Development Perspective from Eastern DRC’, International Journal of Transitional Justice, 2 (2008), 398.

11 See M. Findlay and R. Henham, Transforming International Criminal Justice (London: Routledge, 2012); J. Doak and D. O’Mahoney, ‘In Search of Legitimacy: Restorative Youth Conferencing in Northern Ireland’, Legal Studies, 31 (2011), 305325.

12 G. Millar, An Ethnographic Approach to Peacebuilding Understanding Local Experiences in Transitional States (London: Routledge, 2014).

13 See e.g., P. Pham et al., Forgotten Voices: A Population-Based Survey on Attitudes about Peace and Justice in Northern Uganda (New York and Berkeley, CA: Center for International Transitional Justice and Berkeley Human Rights Center, 2005); P. Pham et al., When the War Ends: A Population-Based Survey on Attitudes about Peace, Justice, and Social Reconstruction in Northern Uganda (New York and Berkeley: Center for International Transitional Justice and Berkeley Human Rights Center, 2007); P. Vinck et al., Living with Fear: A Population-Based Survey on Attitudes about Peace, Justice, and Social Reconstruction in Eastern Democratic Republic of the Congo (Berkeley: Human Rights Center, 2008).

14 M. Koskenniemi, ‘Human Rights Mainstreaming as a Strategy for Institutional Power’, Humanity, 1 (2010), 47.

15 A good example is the development of localised peace indicators. See R. MacGinty, ‘Indicators+: A Proposal for Everyday Peace Indicators’, Evaluation and Program Planning, 36 (2013), 56.

16 See H. Weinstein and E. Stover (eds.), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge: Cambridge University Press, 2004); M. Glasius, ‘What is Global Justice and Who Decides? Civil Society and Victim Responses to the International Criminal Court’s First Investigations’, Human Rights Quarterly, 31 (2009), 496; M. Saul, ‘Local Ownership of the International Criminal Tribunal for Rwanda: Restorative and Retributive Effects’, International Criminal Law Review, 12 (2012), 427.

17 W. Burke-White, ‘Regionalization of International Criminal Law Enforcement: A Preliminary Exploration’, Texas International Law Journal, 38 (2003), 729.

18 See Open Society Justice Initiative, International Crimes, Local Justice (New York: Open Society Foundations, 2011).

19 See S. Ford, ‘The International Criminal Court and Proximity to the Scene of the Crime: Does the Rome Statute Permit All of the ICC’S Trials to take Place at Local or Regional Chambers?’, John Marshall Law Review, 43 (2010), 715.

20 On gacaca, see P. Clark, The Gacaca Courts and Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers (Cambridge: Cambridge University Press, 2010). On amnesties, see M. Freeman, Necessary Evils: Amnesties and the Search for Justice (Cambridge: Cambridge University Press, 2009).

21 See D. Rothe, J. Meernik, and T. Ingadóttir (eds.), The Realities of International Criminal Justice (Leiden/Boston: Martinus Nijhoff, 2013); C. Schwöbel (ed.), Critical Approaches to International Criminal Law (London: Routledge, 2014).

22 ICC, ‘Turning the Lens: Victims and Affected Communities on the Court and the Rome Statute System’, RC/ST/V/INF.2, 30 May 2010, at www.icc-cpi.int/iccdocs/asp_docs/RC2010/Stocktaking/RC-ST-V-INF.2-ENG.pdf; Assembly of States Parties, ‘The Impact of the Rome Statute on Victims and Affected Communities’, RC 11 (2010), at www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-11-Annex.V.a-ENG.pdf.

23 S. Nouwen, Complementarity in the Line of Fire (Cambridge: Cambridge University Press, 2013); C. Stahn, ‘Taking Complementarity Seriously: On the Sense and Sensibility of “Classical”, “Positive” and “Negative” Complementarity’, in C. Stahn and M. El Zeidy, The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: Cambridge University Press, 2011), 233281.

24 See K.J. Heller, ‘Completion’, in Luc Reydams, Jan Wouters, and Cedric Ryngaert (eds.), International Prosecutors (Oxford: Oxford University Press, 2012), 886925.

25 S. Kendall and S. Nouwen, ‘Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood’, Law and Contemporary Problems, 76 (2014), 235; A. Sagan, ‘African Criminals/African Victims: The Institutionalised Production of Cultural Narratives in International Criminal Law’, Millennium – Journal of International Studies, 39 (2010), 3.

26 Post-colonial theory has a long tradition. It is grounded in humanitarian, economic, political or religious critiques of colonial and imperial forms of power (i.e., relationships of oppression, domination, inequality and dependence), and their continuing manifestation in contemporary society. See E. Said, Orientalism (New York: Vintage, 1978); L.S. Rukundwa and Andries G. van Aarde, ‘The Formation of Postcolonial Theory’, Theological Studies, 63 (2007), 1171; R. Young, Postcolonialism: An Historical Introduction (London: Blackwell, 2001); D. Ivison, Postcolonial Liberalism (Cambridge: Cambridge University Press, 2002). Post-colonial legal theory draws on the intellectual legacy of colonialism to examine divides and asymmetric power relations within domestic, international and global contexts. See E. Darian-Smith, ‘Postcolonial Theories of Law’, in R. Banakar and M. Travers (eds.), An Introduction to Law and Social Theory (Oxford: Hart, 2nd ed., 2013), 247; A. Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’, Third World Quarterly, 27 (2006), 739; B. Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003). ‘TWAIL’ scholarship is one strand of postcolonial research. See J. Gaathi, ‘TWAIL: A Brief History of Its Origins, Its Decentralized Network, and a Tentative Bibliography’, Trade, Law and Development, 3 (2011), 26.

27 On missionary features, see A. Anghie and B.S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflict’, Chinese Journal of International Law, 2 (2003), 77, 91; C. Nielsen, ‘From Nuremberg to The Hague: The Civilizing Mission of International Criminal Law’, Auckland University Law Review, 14 (2008), 81.

28 See Chapter 3 by Koller in this volume.

29 See Chapter 11 by Clarke in this volume.

30 See Chapter 14 by Kendall in this volume, analysing dilemmas of restorative justice through the lens of humanitarian discourse.

31 On the concept of ‘humanitarian space’, see D. Thürer, ‘Dunant’s Pyramid: Thoughts on the “Humanitarian Space”’, International Review of the Red Cross, 89 (2007), 47.

32 Classical humanitarianism is grounded in the application of the principles of humanity (e.g., alleviating human suffering), impartiality (no discrimination as to nationality, race, religious beliefs, class or political opinions), neutrality (no involvement in conflict or taking sides for a party) and independence (e.g., autonomy). See proclamation of the Fundamental Principles of the Red Cross, at www.icrc.org/eng/resources/documents/misc/fundamental-principles-commentary-010179.htm.

33 See J. Pictet, Commentary on the Fundamental Principles of the Red Cross (Geneva: International Federation of Red Cross and Red Crescent Societies, 1979), 2223.

34 The 2009 Report of the Secretary-General branded the Rome Statute expressly as ‘one of the key instruments relating to the responsibility to protect.’ See Report of the Secretary-General, ‘Implementing the responsibility to protect’, UN. Doc A/63/677, 12 January 2009, para. 19.

35 For a critique of the term, see Pouligny, Ownership, 7. On the ICC context, see M. Bergsmo, O. Bekou, and A. Jones, ‘Complementarity After Kampala: Capacity Building and the ICC’s Legal Tools’, Göttingen Journal of International Law, 2 (2010), 791.

36 See F. Mégret, ‘Too Much of a Good Thing? Implementation and the Uses of Complementarity’, in Stahn and El Zeidy, Complementarity, 361, 364–376.

37 See N. Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’, American Journal of International Law, 108 (2014), 1. Weiler argues that ‘the consent given by [most] “sovereign” states is not much different to the “consent” that each of us gives, when we upgrade the operating system of our computer and blithely click the “I Agree” button on the Microsoft Terms and Conditions.’ See J. Weiler, ‘The Geology of International Law – Governance, Democracy and Legitimacy’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 64 (2005), 547, 557.

38 See, e.g., the Statement by Palitha Kohona (Sri Lanka), General Assembly, Thematic Debate on International Criminal Justice, 11 April 2013, UN. Doc. GA/11357, arguing that the current international criminal justice system ‘only pays lip service to the cultural backgrounds of the rest of the world.’ On TWAIL critiques, see Anghie and Chimni, ‘Third World Approaches’, 89–92.

39 See e.g., D. Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton, NJ: Princeton University Press, 2004); M. Barnett, Empire of Humanity: A History of Humanitarianism (Ithaca, NY: Cornell University Press, 2011); B. Leebaw, ‘The Politics of Impartial Activism: Humanitarianism and Human Rights’, Perspectives on Politics, 5 (2007), 223; D. Rieff, A Bed for the Night: Humanitarianism in Crisis (New York: Simon & Schuster, 2003).

40 G.M. Gordon, ‘The Innate Cosmopolitan Tradition in International Law’, Cambridge Journal of International and Comparative Law, 2 (2013), 906; P. McAuliffe, ‘From Watchdog to Workhorse: Explaining the Emergence of the ICC’s Burden-Sharing Policy as an Example of Creeping Cosmopolitanism’, Chinese Journal of International Law, 13 (2014), 259.

41 See also A. Branch, Displacing Human Rights: War and Intervention in Northern Uganda (Oxford: Oxford University Press, 2011). On forms of paternalism (hard v. soft, broad v. narrow, weak v. strong, pure v. impure), see G. Dworkin, ‘Paternalism’, The Monist, 56 (1972), 84; M. Barnett, ‘International Paternalism and Humanitarian Governance’, Global Constitutionalism, 1 (2012), 485.

42 See Chapter 9 by Clancy in this volume.

43 C. De Vos, ‘Prosecutor v Lubanga: “Someone who comes between one person and another”: Lubanga, Local Cooperation and the Right to a Fair Trial’, Melbourne Journal of International Law, 12 (2011), 217.

44 S. Vasiliev, ‘Victim Participation Revisited: What the ICC is Learning About Itself’, in C. Stahn (ed.), The Law and Practice of the International Criminal Court (Oxford: Oxford University Press, 2015), 1133.

45 See, e.g., ICC, Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of 7 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 24 December 2007, ICC-01/04 OA4 OA5 OA6, 19 December 2008, para. 58. See also Kendall and Nouwen, ‘Representational Practices’, 244–245.

46 On witnesses, see E. Stover, The Witnesses: War Crimes and the Promise of Justice in The Hague (Philadelphia, PA: University of Pennsylvania Press, 2005).

47 D.P. Fidler, ‘The Return of the Standard of Civilization’, Chicago Journal of International Law, 2 (2001), 137; F. Mégret, ‘From “Savages” to “Unlawful Combatants”: A Postcolonial Look at International Humanitarian Law’s “Other”’, in A. Orford (ed.), International Law and Its Others (Cambridge: Cambridge University Press, 2006), 265317. On progress, see T. Skouteris, The Notion of Progress in International Law Discourse (The Hague: TMC Press, 2010).

48 D. Robinson, ‘Inescapable Dyads: Why the ICC Cannot Win’, Leiden Journal of International Law, 28 (2015), 323.

49 See e.g., Article 22 of the Covenant of the League of Nations (‘sacred trust of civilisation’).

50 Article 78 UN Charter bans trusteeship in relation to UN member states.

51 See B. Bowden, The Empire of Civilization: The Evolution of an Imperial Idea (Chicago, IL: University of Chicago Press, 2009).

52 See Nielsen, ‘Civilizing Mission’, 105.

53 See the First Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc, A/49/342, S/1994/1007, 29 August 1994, para. 15; A. Cassese, ‘Reflections on International Criminal Justice’, Journal of International Criminal Justice, 9 (2011), 271 (‘criminal justice is among the most civilized responses to … conflict’).

54 See in relation to human rights, D. Otto, ‘Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference’, in E.-D. Smith and P. Fitzpatrick (eds.), Laws of the Postcolonial (Ann Arbor: University of Michigan Press, 1999), 145180.

55 On ‘mission civilisatrice’, see A.L. Conklin, A Mission to Civilize: The Republican Idea of Empire in France and West Africa 1895–1930 (Stanford, CA: Stanford University Press, 1997); M. Koskenniemi, Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2002), 105.

56 On victor’s justice, see e.g., William A. Schabas, ‘Victor’s Justice: Selecting “Situations” at the International Criminal Court’, John Marshall Law Review, 43 (2010), 535.

57 See E. Jouannete, ‘Universalism and Imperialism: The True-False Paradox of International Law’, European Journal of International Law, 18 (2007), 379.

58 For a critique, see M. Mamdani, ‘Responsibility to Protect or Right to Punish?’, Journal of Intervention and Statebuilding, 4 (2010), 53, 6067.

59 See Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, A/HRC/21/46, 9 August 2012, para. 30.

60 See E. van Sliedregt and S. Vasiliev (eds.), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014).

61 Critically in relation to human rights, see Koskenniemi, ‘Mainstreaming’, 51–54.

62 For a defence of universalism, based on ‘anthropological human identity’ and re-appropriation, see D. Tladi, ‘The African Union and the International Criminal Court: The Battle for the Soul of International Law’, South African Yearbook of International Law, 34 (2009), 57, 66.

63 See C. Schwoebel, ‘The Market and Marketing Culture of International Criminal Law’, in C. Schwoebel (ed.), Critical Approaches to International Criminal Law – An Introduction (London: Routledge, 2014), 264275.

64 See S. Nouwen and W. Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’, European Journal of International Law, 21 (2010), 941; S. Kendall, ‘Donor’s Justice: Recasting International Criminal Accountability’, Leiden Journal of International Law, 24 (2011), 585.

65 S. Nouwen and W. Werner, ‘Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity’, Journal of International Criminal Justice, 13 (2005), 157, 163; M. Drumbl, Atrocity, Punishment, and International Law (Cambridge: Cambridge University Press, 2007), 122.

66 For instance, in the controversy over the ICC and the African Union, Kenya did not want to be seen as a state that is subject to an Article 16 deferral, and thus portrayed as a ‘threat to international peace and security’.

67 See W. Schabas, ‘The Banality of International Justice’, Journal of International Criminal Justice, 11 (2013), 549550.

68 See Anghie and Chimni, ‘Third World Approaches’, 91.

69 See D. Beswick, ‘The Challenge of Warlordism to Post-Conflict State-Building: The Case of Laurent Nkunda in Eastern Congo’, The Round Table, 98 (2009), 333, 342343.

70 See generally K. Mills“Bashir is Dividing Us”: Africa and the International Criminal Court’, Human Rights Quarterly, 34 (2012), 404; A. Branch, ‘Uganda’s Civil War and the Politics of ICC Intervention’, Ethics and International Affairs, 21 (2007), 179.

71 See statement of Mr Erwa (Sudan), Security Council, 5158th meeting, Thursday, 31 March 2005, UN. Doc. S/PV.5158, at 12.

72 See Associated Press, ‘African Union calls on Member States to Disregard ICC Arrest Warrant against Libya’s Gadhafi’, 2 July 2011, at www.foxnews.com/world/2011/07/02/african-union-calls-on-member-states-to-disregard-qaddafi-arrest-warrant/.

73 Their weaknesses and internal contradictions have been exposed elsewhere. See Tladi, ‘African Union’; M. du Plessis, A. Louw, and O. Maunganidze, African Efforts to Close the Impunity Gap, ISS Paper 231 (ISS Africa, 2012) at www.issafrica.org/uploads/Paper241.pdf.

74 See Nielsen, ‘Civilizing Mission’, 103.

75 See ICC, Prosecutor v. Bosco Ntaganda, Trial Chamber VI, Recommendation to the Presidency on holding part of the trial in the State concerned, ICC-01/04-02/06, 19 March 2015.

76 On fiction, see K. Clarke, Fictions of Justice (Cambridge: Cambridge University Press, 2009).

77 On ‘periphery’ and ‘centre’ in post-colonial theory, see D. Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton, NJ: Princeton University Press, 2000); Darian Smith, ‘Postcolonial Theories’, 252.

78 According to Art. 2 (6) of the UN Charter, the UN ‘shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security’. The ICC Statute lacks such a provision.

79 See Mégret, ‘Implementation’, 389, fn. 80.

80 See Nielsen, ‘Civilizing Mission’, 107.

81 Drumbl, Atrocity, 143.

82 On global judicialisation, see B. Kingsbury, ‘International Courts: Uneven Judicialization in Global Order’, in J. Crawford and M. Koskenniemi (eds.), Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012), 203227.

83 See A. Branch, ‘What the ICC Review Conference Can’t Fix’, 11 March 2010, at http://africanarguments.org/2010/03/11/what-the-icc-review-conference-can%E2%80%99t-fix/.

84 For legal analysis, see M. Vagias, The Territorial Jurisdiction of the International Criminal Court (Cambridge: Cambridge University Press, 2014).

85 Art. 19 (2) ICC Statute.

86 Art. 19 (1) ICC Statute.

87 For a critique, see Nielsen, ‘Civilizing Mission’, 99.

88 See L. Fletcher and H. Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’, Human Rights Quarterly, 24 (2002), 573, 580.

89 See Rule 90 (2) of the ICC Rules of Procedure and Evidence.

90 See Chapter 5 by Newton in this volume.

91 See OTP, Policy Paper Interests of Justice (September 2007), 6, at http://icc-cpi.int/iccdocs/asp_docs/library/organs/otp/ICC-OTP-InterestsOfJustice.pdf.

94 For a different narrative on the state of the art, see Freeman, Necessary Evil.

95 OTP Policy Paper, Interests of Justice, 8, fn. 13.

97 See Priscilla Hayner, ‘Does the ICC Advance the Interests of Justice?’, 4 November 2014, at www.opendemocracy.net/openglobalrights/priscilla-hayner/does-icc-advance-interests-of-justice.

98 On history and trials, see L. Douglas, The Memory of Judgement: Making Law and History in the Trials of the Holocaust (London: Yale University Press, 2000). R.A. Wilson, Writing History in International Criminal Trials (Cambridge: Cambridge University Press, 2011).

99 See M. Damaška, ‘What Is the Point of International Criminal Justice’, Chicago-Kent Law Review, 83 (2008), 329.

100 Id., at 348.

101 O. Bekou, ‘Rule 11 BIS: An Examination of the Process of Referrals to National Courts in ICTY Jurisprudence’, Fordham International Law Journal, 33 (2009), 729.

102 Gaddafi and Al-Senussi, Situation in Libya, Defence Response on behalf of Mr Abdullah Al-Senussi to ‘Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute’, ICC-01/11-01/11-356, 14 June 2013, para. 11.

103 Gaddafi and Al-Senussi, Situation in Libya, Public Redacted Version of the ‘Response to the “Libyan Government’s further submissions on issues related to admissibility of the case against Saif Al-Islam Gaddafi”’, ICC-01/11-01/11-281-Red2, 18 February 2013, para. 11.

104 See Prosecutor v. Saif Al-Islam Gadaffi and Abdullah Al-Senussi, Document in Support of Appeal on behalf of Abdullah Al-Senussi against Pre-Trial Chamber I’s ‘Decision on the admissibility of the case against Abdullah Al-Senussi’, ICC-01/11-01/11-474, 4 November 2013, para. 3.

105 See C. Stahn, ‘Justice Delivered or Justice Denied: The Legacy of the Katanga Judgment’, Journal of International Criminal Justice, 12 (2014), 809.

106 ICC, Prosecutor v. Germain Katanga, Jugement rendu en application de l’article 74 du Statut, ICC-01/04-01/07-3436, 8 March 2014.

107 Minority Opinion of Judge Christine Van den Wyngaert, ICC-01/04-01/07–3436-AnxI, 8 March 2014, para. 205.

108 Footnote Ibid., para 207.

109 Footnote Ibid., para. 274.

110 Footnote Ibid., para. 258.

111 Footnote Ibid., para. 318.

112 See generally A. Branch, ‘International Justice, Local Injustice’, Dissent, 51 (2004), 22.

113 See U. Baxi, ‘Postcolonial Legality’, in H. Schwarz and S. Ray (eds.), A Companion to Postcolonial Studies (Oxford: Blackwell, 2000), 540, 551552; M. Barnett, ‘Humanitarianism as Scholarly Vocation’, in M. Barnett and T. Weiss (eds.), Humanitarianism in Question: Politics, Power, Ethics (Ithaca, NY: Cornell University Press, 2008), 235, 255; Kennedy, Dark Sides, 26–28.

114 On dilemmas of acquittals, see J. Clark, ‘Courting Controversy: The ICTY’s Acquittal of Croatian Generals Gotovina and Markač’, Journal of International Criminal Justice, 11 (2013), 399.

115 For democratisation of access to information, see M. Bergsmo, Complementarity and the Challenges of Equality and Empowerment, FICHL Policy Brief Series No. 8 (2011), 34.

116 Article 38 para. 1 lit. c. of ICJ Statute refers to ‘general principles of law recognized by civilized nations’ as one of the sources of international law. See G.W. Gong, The Standard of ‘Civilization’ in International Society (Oxford: Clarendon Press, 1984), 3; L. Obregón, ‘The Civilized and the Uncivilized’, in B. Fassbender and A. Peters (eds.), The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012), 917.

117 In colonial policy, decolonisation implied that ‘a society first had to be educated to be civilized’ and to gain access to self-determination before its recognition as an equal sovereign. See N. Matz, ‘Civilization and the Mandate System under the League of Nations’, Max Planck Yearbook of International Law, 9 (2005), 47, 61.

118 F. Mégret, ‘In Search of the “Vertical”: Towards an Institutional Theory of International Criminal Justice’s Core’, in C. Stahn and L. van den Herik (eds.), Future Perspectives on International Criminal Justice (The Hague: TMC Asser Press, 2010), 178.

119 See K. Clarke and M. Goodale (eds.), Mirrors of Justice: Law and Power in the Post-Cold War Era (Cambridge: Cambridge University Press, 2014).

120 But see Nielsen, ‘Civilizing Mission’, 108, arguing that the choice under the complementarity model as such is ‘imperialistic’, since ‘the “other” is brought within the universal standards of civilization set by international criminal law’.

121 See R. Rastan, ‘What Is a “Case” for the Purpose of the Rome Statute?’, Criminal Law Forum, 19 (2008), 435.

122 See L. Varadarajan, ‘The Trials of Imperialism: Radhabinod Pal’s Dissent at the Tokyo Tribunal’, European Journal of International Relations, 21 (2015), first published on 10 December 2014 as doi:10.1177/1354066114555775; Y. Totani, The Tokyo War Crimes Trial (Cambridge, MA: Harvard University Press, 2009).

123 Pal argued that the tribunal would be an ‘ideological cloak, intended to disguise the vested interests of the interstate sphere and […] serve as a first line for their defence’. See IMTFE, Dissentient Judgment of Justice Pal (Kokusho Kankokai, Tokyo, 1999), 117.

124 E. Kopelman, ‘Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial’, New York University Journal of International Law and Politics, 23 (1991), 373, 375.

125 Gaddafi and Al-Senussi, Situation in Libya, Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al-Islam Gaddafi’, ICC-01/11-01/11 OA 4, AC, ICC, 21 May 2014, para 73 (‘Gaddafi Appeals Judgment’); in the same vein Gaddafi and Al-Senussi, Situation in Libya, Judgment on the Appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October entitled ‘Decision on the admissibility of the case against Addullah Al-Senussi’, ICC-01/11-01/11 OA 6, AC, ICC, 24 July, para. 119 (‘Al Senussi Appeals Judgment’).

126 On ‘mimicry’ as a feature of post-colonial critique, see D. Robinson, Translation and Empire: Postcolonial Theories Explained (Manchester: St Jerome Publishing, 1997), 1920; Darian Smith, ‘Postcolonial Theories’, 253.

127 Al-Senussi Appeals Judgment, para. 119

128 Gaddafi Appeals Judgment, para. 72.

129 See Appeals Chamber, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’, ICC-01/09-02/11 O A, 30 August 2011, para. 42.

130 Gaddafi Appeals Judgment, para. 76.

131 Gaddafi Appeals Judgment, Dissenting Opinion of Judge Anita Usacka, ICC-01/11-01/1 l-547-Anx2 (OA 4), para. 65.

132 Footnote Ibid., paras. 52 and 55.

133 On legal hybridity in colonial and post-colonial relations, see J. Comaroff and J. Comaroff (eds.), Law and Disorder in the Postcolony (Chicago, IL: University of Chicago Press, 2006); Darian Smith, ‘Postcolonial Theories’, 255.

134 See Chapter 15 by De Vos in this volume.

135 See Chapter 16 by Labuda in this volume.

136 See also S. Kendall, ‘Commodifying Global Justice: Economies of Accountability at the International Criminal Court’, Journal of International Criminal Justice, 13 (2015), 113.

137 See Nouwen, Complementarity, 223.

139 On the Kwoyelo case, see Chapter 6 by Oola in this volume.

140 The Constitutional Court directed the ICD to cease the trial in light of the existing amnesty legislation. In April 2015, the Supreme Court held that the ‘trial of the respondent by the International Crimes Division of the High Court is proper and should proceed’. See Supreme Court, Uganda versus Kwoyelo, Constitutional Appeal No. 01 of 2012, [2015] UGSC 5, 8 April 2015, at www.ulii.org/ug/judgment/supreme-court/2015/5.

141 On the draft decree, see Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute, ICC-01/11-01/11, 1 May 2012, para. 84. On justice and Libya, see International Crisis Group, ‘Trial by Error: Justice in Post-Qadhafi Libya’, Crisis Group Middle East/North Africa Report N°140, 17 April 2013; see Chapter 18 by Kersten in this volume.

142 On legal transplants and colonisation, see B.S. Cohen, Colonialism and Its Forms of Knowledge (Princeton, NJ: Princeton University Press, 2006), 5875.

143 On the petition system of the League, see A. Momirov, ‘The Individual Right to Petition in Internationalized Territories: From Progressive Thought to an Abandoned Practice’, Journal of the History of International Law, 9 (2007), 203.

144 See Report Special Rapporteur, para. 30.

145 See also Chapter 11 by Clarke and Chapter 12 by Fletcher in this volume.

146 On similar trends in humanitarian action, see P. Benelli, ‘Human Rights in Humanitarian Action and Development Cooperation and the Implications of Rights-Based Approaches in the Field’ (ATHA, June 2013).

147 See Velasquez Rodriguez Case, Judgment of 29 July 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), para. 176.

148 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005, para. 15.

149 See Chapter 13 by Dixon and Chapter 14 by Kendall in this volume.

150 See Prosecutor v. Thomas Lubanga, TC I, Decision on the Defence request for leave to appeal the Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06, 29 August 2012, para. 23.

151 On the hierarchisation of victims through ICC proceedings, see Kendall and Nouwen, ‘Representational Practices’, 241–252.

152 See M. Findlay, ‘Locating Victim Communities within Global Justice and Governance’, in A. Crawford (ed.), International and Comparative Criminal Justice and Urban Governance: Convergence and Divergence in Global, National and Local Settings (Cambridge: Cambridge University Press, 2011), 109139.

153 Prosecutor v. Thomas Lubanga, Judgment on the appeals against the ‘Decision establishing the principles and procedures to be applied to reparations’ of 7 August 2012, ICC-01/04-01/06 A A 2 A 3, Appeals Chamber, 3 March 2015 (AC Reparations Judgment), para. 65.

154 AC Reparations Judgment, para. 183; Regulation 50 of the Regulations of the Trust Fund.

155 Prosecutor v. Thomas Lubanga, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06, Trial Chamber, 7 August 2012 (TC Reparations Decision), para. 44.

157 Footnote Ibid., para. 274.

158 AC Reparations Judgment, para. 212.

159 See ICC, ‘Turning the Lens’, 5.

160 On imagined subjectivity in post-colonial theory, see T. Mahmud, ‘Postcolonial Imaginaries: Alternative Development or Alternatives to Development?’, Transnational Law & Contemporary Problems, 9 (1999), 25; T. Ruskola, ‘Legal Orientalism’, Michigan Law Review, 101 (2002), 179, 200 et seq.

161 On victims as constituency of international justice, see also Chapter 1 by Mégret in this volume.

162 See Clarke (Chapter 11).

163 See K. Clarke, ‘The Rule of Law Through Its Economies of Appearances: The Making of the African Warlord’, Indiana Journal of Global Legal Studies, 18 (2011), 7; Clarke, Fictions of Justice, 105–109.

164 In the late nineteenth and early twentieth centuries, exhibitions of native people and traditions were a popular means of entertainment in Europe. See Matz, ‘Civilization’, 66.

165 See M. Mutua, ‘Savages, Victims and Saviors: The Metaphor of Human Rights’, Harvard International Law Journal, 42 (2001), 201; F. Ní Aoláin and D. Haynes, ‘The Compatibility of Justice for Women with Analysis’, in C. Stahn, J. Easterday, and J. Iverson, Jus Post Bellum: Mapping the Normative Foundations (Oxford: Oxford University Press, 2013), 161, 164.

166 Critics have argued that the mandates and trusteeship system were geared at maintaining power. See A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005).

167 Report of the Court on complementarity: Completion of ICC activities in a situation country, ICC-ASP/12/32, 15 October 2013.

168 Footnote Ibid., para. 19.

169 Footnote Ibid., para. 17.

170 Footnote Ibid., para. 26.

171 Footnote Ibid., para. 27.

172 Footnote Ibid., para. 32.

173 Footnote Ibid., para. 36.

174 Footnote Ibid., para. 33.

175 Footnote Ibid., para. 35.

176 Footnote Ibid., para. 34.

177 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, following the Appeals Chamber decision on the verdict and sentence in the Lubanga case: Protecting children means preserving the future, 2 December 2014.

178 On the ICC and ISIS, see C. Stahn, ‘Why the ICC Should Be Cautious to Use the Islamic State to Get Out of Africa: Part 1’, at www.ejiltalk.org/why-the-icc-should-be-cautious-to-use-the-islamic-state-to-get-out-of-africa-part-1/.

179 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the alleged crimes committed by ISIS, 8 April 2015.

180 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, following the Appeals Chamber decision upholding the acquittal in the Ngudjolo Chui case, 27 February 2015.

181 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on Germain Katanga’s Notice of Discontinuance of his Appeal against his Judgment of Conviction, 25 June 2014.

182 See Stahn, Katanga, 821, 833–834.

183 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr Uhuru Muigai Kenyatta, 5 December 2014.

184 See Fletcher (Chapter 12).

185 See Dixon (Chapter 13).

186 See above note 26.

187 As noted by Mamdani: ‘[T]he colonial experience for most natives was one of rule mediated through one’s own.’ See M. Mamdani, ‘Historicizing Power and Responses to Power: Indirect Rule and Its Reform’, Social Research, 66 (1999), 859, 870.

188 See Damaška, ‘What’s the Point’, 387.

3 The global as local The limits and possibilities of integrating international and transitional justice

Thanks to Philippe Kirsch, Darryl Robinson, Susana SáCouto and Eric Witte for their helpful comments and suggestions. The views expressed herein are those of the author alone and do not necessarily represent those of the International Criminal Court.

1 See, e.g., R. Shaw et al. (eds.), Localizing Transitional Justice: Interventions and Priorities after Mass Violence (Stanford, CA: Stanford University Press, 2010); Report on the Rule of Law and Transitional Justice in Conflict or Post-Conflict Societies, UN Doc. S/2004/616 (2004) (‘Rule of Law Report’).

2 G. Simpson, Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Cambridge: Polity Press, 2007), 1.

3 See D. Koller, ‘The Faith of the International Criminal Lawyer’, New York University Journal of International Law and Politics, 40 (2008), 1019, 10201021.

4 Rule of Law Report, 8.

5 R. Teitel, Transitional Justice (New York: Oxford University Press, 2000), 69 (citations omitted).

6 Rule of Law Report, 5.

7 See K. McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’, Journal of Law and Society, 4 (2007), 411.

8 Rule of Law Report, 39.

9 See, e.g., W. Burke-White, ‘A Community of Courts: Toward a System of International Criminal Law Enforcement’, Michigan Journal of International Law, 24 (2002–3), 1.

10 See, e.g., Teitel, Transitional Justice.

11 R. Teitel, ‘Preface’, in Shaw et al., Localizing Transitional Justice, viii; M. Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick, NJ: Transaction Publishers, 2000), 1.

12 See Teitel, Transitional Justice, 5.

13 See N. Kritz, ‘Progress and Humility: The Ongoing Search for Post-Conflict Justice’, in M. Bassiouni (ed.), Post-Conflict Justice (Ardsley, NY: Transnational Publishers, 2001), 59.

14 Simpson, Law, War and Crime; See also P. Hazan, Judging War, Judging History: Behind Truth and Reconciliation (Stanford, CA: Stanford University Press, 2010), 145; F. Mégret, ‘The Politics of International Criminal Justice’, European Journal of International Law, 13 (2002), 1261; M. Koskenniemi, ‘Between Impunity and Show Trials’, Max Planck Yearbook of United Nations Law, 6 (2000), 1.

15 See G. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, NJ: Princeton University Press, 2002).

16 See Hazan, Judging War, Judging History, 137; J. Maogoto, War Crimes and Realpolitik: International Justice from World War I to the 21st Century (Boulder, CO: Lynne Rienner Publishers, 2004), 89.

17 See Koller, ‘The Faith of the International Criminal Lawyer’.

18 See T. Farer, ‘Restraining the Barbarians: Can International Criminal Law Help?Human Rights Quarterly, 22 (2000), 90; D. Scheffer, ‘International Judicial Intervention’, Foreign Policy, 102 (1996), 34.

19 Madoka Futamura describes such institutions as existing at the ‘critical juncture’ between ‘how war ends’ and ‘how peace starts’. M. Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg Legacy (Abingdon: Routledge, 2008), 6.

20 Teitel, Transitional Justice, 224.

21 Mégret, ‘The Politics of International Criminal Justice’, 1281.

22 See, e.g., D. Robinson, ‘The Identity Crisis of International Criminal Law’, Leiden Journal of International Law, 21 (2008), 925.

23 Joint Four-Nation Declaration (‘Moscow Declaration’), Moscow, 30 October 1943, The Avalon Project; Proclamation by the Heads of Governments, United States, China and the United Kingdom, Terms for Japanese Surrender (‘Potsdam Declaration’), Berlin, 26 July 1945, 3 Bevans 1204.

24 Moscow Declaration.

25 Potsdam Declaration.

26 Moscow Declaration.

27 See A. Kochavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (Chapel Hill: University of North Carolina Press, 1998), 6379.

28 See Report of Robert H. Jackson, US representative to the International Conference on Military Trials (1945), The Avalon Project; Kochavi, Prelude to Nuremberg; B. Smith, The Road to Nuremberg (New York, NY: Basic Books 1981).

29 R. Jackson, ‘Opening Address at the Nuremberg Tribunal’, reprinted in U.S. Chief of Counsel For Prosecution of Axis Criminality, Nazi Conspiracy and Aggression (Washington, DC: United States Government Printing Office,1946), vol. I, 9899.

30 Footnote Ibid. (referring to the launching of an aggressive war as the ‘supreme crime’).

31 Koller, ‘The Faith of the International Criminal Lawyer’, 1035–1036.

33 See Judge R. Pal, ‘Dissenting Opinion to the Tokyo Judgment’, in B. Röling and C. Ruter (eds.), The Tokyo Judgment (Amsterdam: University Press Amsterdam, 1977), 541551.

34 Maogoto, War Crimes and Realpolitik, 100–104.

35 Article 6 of the Charter of the International Military Tribunal.

36 See the discussion in Koller, ‘The Faith of the International Criminal Lawyer’, 1040–1046.

37 Footnote Ibid., 1038–1039

38 Simpson, Law, War and Crime, 24.

39 UN Doc. S/RES/827 (1993) (establishing the ICTY); UN Doc. S/RES/955 (1994) (establishing the ICTR).

40 In relation to the ICTY, see UN Docs S/RES/713 (1991); S/RES/721 (1991); S/RES//724 (1991); S/RES/727 (1992); S/RES/740 (1992); S/RES/743 (1992); S/RES/749 (1992); S/RES/752 (1992); S/RES/757 (1992); S/RES/758 (1992); S/RES/760 (1992); S/RES/761 (1992); S/RES/762 (1992); S/RES/764 (1992); S/RES/771 (1992); S/RES/780 (1992). In relation to the ICTR, see UN Docs S/RES/912 (1994); S/PRST/1994/21 (1994); S/RES/918 (1994); S/RES/935 (1994).

41 See K. Anderson, ‘The Rise of International Criminal Law: Intended and Unintended Consequences’, European Journal of International Law, 20 (2009), 331, 334; R. Kerr, The Internal Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics and Diplomacy (Oxford/New York: Oxford University Press, 2004), 38.

42 See Maogoto, War Crimes and Realpolitik, 185; M. Mutua, ‘Never Again: Questioning the Yugoslav and Rwanda Tribunals’, Temple International & Comparative Law Journal, 11 (1997), 167, 176.

43 UN Doc. S/RES/808 (1993), 2.

44 See ‘U.S. Names Figures it Wants Charged with War Crimes’, The New York Times, 17 December 1992; Letter dated 28 September 1994 from the Permanent Representative of Rwanda to the United Nations Addressed to the President of the Security Council, UN Doc. S/1994/1115 (1994).

45 Mégret, ‘The Politics of International Criminal Justice’, 1275.

46 Bass, Stay the Hand of Vengeance, 215–216; D. Hirsh, Law against Genocide: Cosmopolitan Trials (London: The Glass House Press, 2003), 7576.

47 See UN Doc. S/Res/827 (1993); UN Doc. S/Res/955 (1994).

48 UN Doc. S/Res/955 (1994).

49 Articles 3–5 ICTY Statute, Annex to UN Doc. S/25704 (1993); Articles 2–4 ICTR Statute, Annex to UN Doc. S/RES/955 (1994).

50 Mégret, ‘The Politics of International Criminal Justice’, 1275.

51 See Articles 12 and 16 ICTY Statute, Annex to UN Doc. S/25704 (1993); Articles 11 and 15 ICTR Statute, Annex to UN Doc. S/RES/955 (1994).

52 See, e.g., Report of the ICTY, UN Doc. A/49/342-S/1994/1007 (1994), at 15–16.

53 See, e.g., Seventeenth Annual Report of the ICTY, UN Doc. A/65/205-S/2010–413 (2010), at 8, 80–84 and 87; Fifteenth annual report of the ICTR, UN Doc. A/65/188-S/2010/418 (2010), at 53–55, 60–65.

54 See statements of Mr Kovanda (Czech Republic) and Mr Keating (New Zealand) in UN Doc. S/PV.3453 (1994).

55 See, e.g., A.-S. Massa, ‘NATO’s Intervention in Kosovo and the Decision of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia Not to Investigate: An Abusive Exercise of Prosecutorial Discretion?Berkeley Journal of International Law, 24 (2006), 610; P. Erlinder, ‘The UN Security Council Ad Hoc Rwanda Tribunal: International Justice or Juridically-Constructed “Victor’s Impunity”?DePaul Journal for Social Justice, 4 (2010), 131.

56 See K. Moghalu, ‘Reconciling Fractured Societies: An African Perspective on the Role of Judicial Prosecutions’, in R. Thakur and P. Malcontent (eds.), From Sovereign Impunity to International Accountability: The Search for Justice in a World of States (Tokyo: United Nations University Press, 2004), 197.

57 See J. Mujuzi, ‘Steps Taken in Rwanda’s Efforts to Qualify for the Transfer of Accused from the ICTR’, Journal of International Criminal Justice, 8 (2010), 237.

58 Mégret, ‘The Politics of International Criminal Justice’, 1275.

59 UN Doc. S/25704 (1993), at 106.

60 See UN Doc. S/25704 (1993), at 131. See also T. Franck, Fairness in International Law and Institutions (Oxford: Oxford University Press, 2002), 280.

61 Mégret, ‘The Politics of International Criminal Justice’, 1273. See also G. McDonald, ‘Problems, Obstacles and Achievements of the ICTY’, Journal of International Criminal Justice, 2 (2004), 558, 560567.

62 See Kerr, An Exercise in Law, Politics and Diplomacy, 156 (citing R. Holbrooke, To End a War (New York, NY: Random House, 1999), 315316, 338).

63 P. Williams and M. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (Lanham, MD: Rowman and Littlefield, 2002), 207208.

64 Articles 7–8, Rome Statute.

65 Preamble and Article 17, Rome Statute.

66 Articles 68(3) and 75, Rome Statute.

67 Articles 15 and 73, Rome Statute.

68 Statement of President Kirsch, 11th Diplomatic Briefing, 10 October 2007, 4.

69 C. Warbrick, ‘The United Nations System: A Place for Criminal Courts?Transnational Law and Contemporary Problems, 5 (1995), 237, 243.

70 See Articles 13–15, Rome Statute.

71 Article 53(3)(a), Rome Statute.

72 See Letter from Prosecutor Moreno-Ocampo to President Kirsch on 17 June 2004, Annex to Decision Assigning the Situation in Uganda to Pre-Trial Chamber II, Situation in Uganda, ICC-02/04, Presidency, ICC, 5 July 2004; Letter referring the situation in the Central African Republic to the ICC Prosecutor, reproduced in annex 19 to Communication par la Défense des copies de documents référenciés dans les notes de bas de pages de sa requête en contestation de la recevabilité, The Prosecutor v. Jean-Pierre Bemba Gombo (‘Bemba’), ICC-01/05-01/08, 15 March 2010. Even the referral of the situation in the Democratic Republic of the Congo can be seen as an expression of self-interest. See W. Burke-White, ‘Complementarity in Practice: the International Criminal Court as Part of a System of Multi-Level Global Governance in the Democratic Republic of the Congo’, Leiden Journal of International Law, 18 (2005), 557, 565.

73 UN Doc. S/RES/1593 (2005). For a brief overview of the steps leading to the referral, see R. Cryer, ‘Sudan, Resolution 1593, and International Criminal Justice’, Leiden Journal of International Law, 19 (2006), 195, 198203.

74 UN Doc. S/RES/1970 (2011).

75 See Cable from US Embassy, London to US Secretary of State: ‘Sudan/ICC: UK Prepared to remain Initially Flexible in the Face of New Indictments’, 11 July 2008; Cable from US Embassy, London to US Secretary of State: ‘Sudan/ICC: UK Strategy with Potential Bashir ICC Indictment’,15 July 2008; ‘Deal Could See Gaddafi Escape Prosecution’, Belfast Telegraph, 29 March 2011; David Bosco, ‘The Libya Resolution: Prosecution as Bargaining Chip?’, Foreign Policy, 27 February 2011.

76 See Corrigendum to Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 24 June 2010 entitled ‘Decision on the Admissibility and Abuse of Process Challenges’, The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Appeals Chamber, ICC, 19 October 2010; Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07, Appeals Chamber, 25 September 2009.

77 See Parts IX-XII, Rome Statute.

78 Ban Ki-Moon, ‘Op-Ed: We Must Get Justice’, New Vision Online, 28 May 2010.

79 Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Part I, at 22–30.

80 Kampala Declaration, 1 June 2010, RC/Decl.1, Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Part II, 23, at 3.

81 See Stocktaking of International Criminal Justice (Peace and Justice): Moderator’s Summary, Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Annex V(b), at 2a, 8–26, 32.

82 Stocktaking of International Criminal Justice (The impact of the Rome Statute System on Victims and Affected Communities): Final Report by the Focal Points (Chile and Finland), Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Annex V(a), at 8.

83 Assembly of States Parties, Report of the Bureau on stock-taking: complementarity, ICC-ASP/8/51 at 4.

84 The growing role of civil society has had the added consequence that the ICC must justify its legitimacy not only to states but also to civil society. M. Glasius, ‘What Is Global Justice and Who Decides? Civil Society and Victim Responses to the International Criminal Court’s First Investigations’, Human Rights Quarterly, 31 (2009), 496, 497.

85 Moghalu, ‘Reconciling Fractured Societies’, 203.

86 See E. Witte, Putting Complementarity into Practice: Domestic Justice for International Crimes in DRC, Uganda and Kenya (New York, NY: Open Society Foundations, 2011); G. Mattioli and A. van Woudenberg, ‘Global Catalyst for National Prosecutions? The ICC in the Democratic Republic of Congo’, in N. Waddell and P. Clark (eds.), Courting Conflict? Justice, Peace and the ICC in Africa (London: Royal African Society, 2008), 55.

87 Suggestions that international criminal law will radically evolve on its own against the interests of states are largely overstated. See A. Kapur, ‘Conceptual Distinctions Between the ICJ Project and Its Constituent Processes: A Reply to Brad Roth and Ken Anderson’, EJIL Talk!, 11 May 2010.

88 See, T. Franck and S. Yuan, ‘The United States and the International Criminal Court: Unilateralism Rampant’, New York University Journal of International Law and Politics, 35 (2003), 519, 555558.

89 See, e.g., N. Grono and A. O’Brien, ‘Justice in Conflict: The ICC and Peace Processes’, in Waddell and Clark (eds.), Courting Conflict? Justice, Peace and the ICC in Africa, 15–16; see also International Crisis Group, ‘Northern Uganda Peace Process: The Need to Maintain Momentum’, Africa Briefing No. 26, 14 September 2007; Mattioli and van Woudenberg, ‘Global Catalyst for National Prosecutions?’; M. Glasius, ‘Global Justice Meets Local Civil Society: The International Criminal Court’s Investigation in the Central African Republic’, Alternatives: Global, Local, Political, 33 (2008), 413, 428; B. Cooper, ‘The Limits of International Justice’, World Policy Journal, 91 (2009), 98.

90 T. Franck, The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990), 152.

91 See Chapters 1214 by Fletcher, Dixon and Kendall in this volume.

4 Bespoke transitional justice at the International Criminal Court

1 J. Ramji-Nogales, ‘Designing Bespoke Transitional Justice: A Pluralist Process Approach’, Michigan Journal of International Law, 32 (2010), 1.

2 See, e.g., M. Cherif Bassiouni, ‘International Criminal Justice in Historical Perspective: The Tension Between States’ Interests and the Pursuit of International Justice’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (Oxford: Oxford University Press, 2009), 131, 131; A. Cassese, ‘The Rationale for International Criminal Justice’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (Oxford: Oxford University Press, 2009), 123, 127; W.A. Schabas, The UN International Criminal Tribunals: The former Yugoslavia, Rwanda and Sierra Leone (New York: Cambridge University Press, 2006), 68.

3 For an incisive critique of the concept of victimhood before the ICC, see S. Kendall and S. Nouwen, ‘Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood’, Law and Contemporary Problems, 76 (2014), 235.

4 See further Chapter 3 by Koller in this volume, citing G. Simpson, Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Cambridge: Polity Press, 2007), 1.

5 For a thoughtful exploration of how this phenomenon has played out in Uganda and Sudan, see S. Nouwen and W.G. Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’, European Journal of International Law, 21 (2010), 941.

6 Footnote Ibid., 946. Nouwen and Werner argue that analysts of the ICC must begin by understanding and acknowledging its inherently political nature.

7 See, e.g., M. Drumbl, Atrocity, Punishment, and International Law (New York: Cambridge University Press, 2007), 32.

8 See, e.g., M. Damaška, ‘What Is the Point of International Criminal Justice?Chicago-Kent Law Review, 83 (2008), 329, 336337, 345.

9 See, e.g., M. Koskenniemi, ‘Between Impunity and Show Trials’, Max Planck Yearbook of International Law, 6 (2002), 1.

10 See S. Kendall, ‘“UhuRuto” and Other Leviathans: The International Criminal Court and the Kenyan Political Order’, African Journal of Legal Studies, 7 (2014), 399.

11 See further Koller (Chapter 3); Kendall and Nouwen, ‘Representational Practices’.

12 For a critique of this claim, see A. Branch, Displacing Human Rights: War and Intervention in Northern Uganda (New York: Oxford University Press, 2011).

13 L. Akande, ‘How Nigeria, Others Averted AU’s Withdrawal from ICC’, Nigerian Guardian, 16 October 2013, reprinted by Open Society Foundation for South Africa, South African Foreign Policy Initiative, available at www.safpi.org/news/article/2013/how-nigeria-others-averted-au-s-withdrawal-icc.

14 ‘The Kenya National Dialogue and Reconciliation Monitoring Project, South Consulting Review Report April 2011’, Annex I, National Baseline Survey, 7. The December 2010 survey used a nationwide multi-stage cluster sampling methodology, with a random selection of households and respondents. The sample size was 9,200 and the survey was conducted in all forty-seven counties of Kenya.

15 D. Sharp, ‘Addressing Dilemmas of the Global and the Local in Transitional Justice’, Emory International Law Review, 29 (2014).

16 Ramji-Nogales, ‘Designing Bespoke Transitional Justice’, 11.

17 The term ‘affected society’ refers to the society primarily affected by the mass violence; that is, the society in which the mass violence occurred.

18 See, e.g., R. Teitel, Transitional Justice (New York: Oxford University Press, 2000); R. Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge: Polity Press, 2002).

19 Drumbl, Atrocity, Punishment, and International Law, 32. This contrasts with domestic crimes, the perpetrators of which violate social norms established by a stable power structure.

20 R.H. Fallon, Jr., ‘Legitimacy and the Constitution’, Harvard Law Review, 118 (2005), 1787, 1795.

21 I. Hurd, ‘Legitimacy and Authority in International Politics’, International Organization, 53 (1999), 379, 388.

22 See, e.g., D. Bodansky, ‘The Concept of Legitimacy in International Law’, in R. Wolfrum and V. Röben (eds.), Legitimacy in International Law (Berlin: Springer, 2008), 309, 310; T.R. Tyler and J.M. Darley, ‘Building a Law-Abiding Society: Taking Public Views About Morality and the Legitimacy of Legal Authorities into Account When Formulating Substantive Law’, Hofstra Law Review, 28 (2000), 707, 714717.

23 See, e.g., H. Weinstein, L.E. Fletcher, P. Vinck, and P. Pham, ‘Stay the Hand of Justice: Whose Priorities Take Priority?’, in R. Shaw et al. (eds.), Localizing Transitional Justice: Interventions and Priorities after Mass Violence (Stanford, CA: Stanford University Press, 2010).

24 For example, in a study of the attitudes of judges and prosecutors in Bosnia to war crimes trials, Laurel Fletcher and Harvey Weinstein found that all participants identified their national group as a victim group. L. Fletcher and H.M. Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’, Human Rights Quarterly, 24 (2002), 602. See also Post-Conflict Reintegration Initiative for Development and Empowerment (PRIDE) and the International Center for Transitional Justice, ‘Ex-Combatant Views of the Truth and Reconciliation Commission and the Special Court in Sierra Leone’ (2002), 11, 13.

25 See, e.g., J.N. Clark, ‘Genocide, War Crimes and the Conflict in Bosnia: Understanding the Perpetrators’, Journal of Genocide Research, 11 (2009), 421.

26 See, e.g., R. Shaw, ‘Linking Justice with Re-integration? Ex-Combatants and the Sierra Leone Experiment’, in Shaw et al. (eds.), Localizing Transitional Justice, 11, 131–132.

27 Drumbl, Atrocity, Punishment, and International Law, 13; J. Ku and J. Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?’, Washington University Law Review, 84 (2006), 777, 817819.

28 S. Hampshire, Justice is Conflict (Stanford, CA: Stanford University Press, 2000), 40.

29 Footnote Ibid., 41; I. Shapiro, Democratic Justice (New Haven, CT: Yale University Press, 1999), 234; I. Shapiro, ‘Group Aspirations and Democratic Politics’, in I. Shapiro and C. Hacker-Cordόn (eds.), Democracy’s Edges (Cambridge: Cambridge University Press, 1999), 210, 220.

30 I. Shapiro, The State of Democratic Theory (Princeton, NJ: Princeton University Press, 2003), 4.

31 D.L. Markell and T.R. Tyler, ‘Using Empirical Research to Design Government Citizen Participation Processes: A Case Study of Citizens’ Roles in Environmental Compliance and Enforcement’, University of Kansas Law Review, 57 (2008), 1, 33; Shapiro, The State of Democratic Theory, 36.

32 Hurd, ‘Legitimacy and Authority in International Politics’, 381.

33 Ramji-Nogales, ‘Designing Bespoke Transitional Justice’, 61–67.

34 For further discussion of the inclusion of traditional leaders with moral authority in transitional justice mechanisms in ways that minimise domination and replace a single-minded focus on law as moral authority, see Ramji-Nogales, ‘Designing Bespoke Transitional Justice’, 66.

35 The OTP does engage in some discussion with local populations before deciding whether to undertake an investigation, but such efforts could be more scientific and systematic, and focused more on the perspectives of non-elite members of the affected society. See, e.g., ‘Report on Preliminary Examination Activities’, The Office of the Prosecutor, International Criminal Court (13 December 2011).

36 M. Sirleaf, ‘The Truth About Truth Commissions: Why They Do Not Function Optimally in Post-Conflict Societies’, Cardozo Law Review, 35 (2014), 2263.

37 Decision establishing the principles and procedures to be applied to reparations, The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Trial Chamber I, ICC, 7 August 2012, paras. 281–286.

38 Footnote Ibid., para. 264.

39 Footnote Ibid., paras. 263–266. The Court envisions engagement with a variety of experts at the reparations phase pursuant to Rule 97 (2) of the ICC’s Rules of Procedure and Evidence; such engagement should begin much earlier in the process and prioritise the participation of experts with deep understanding of the relevant cultural context.

40 See, e.g., J. Ciorciari and J. Ramji-Nogales, ‘Lessons Learned from the Cambodian Experience with Truth and Reconciliation’, Buffalo Human Rights Law Review, 19 (2012), 193.

41 ICC Statute Article 17, focused on admissibility, requires that the Court decline cases in which the state with jurisdiction over that case is investigating or prosecuting the case, or has decided not to prosecute the case.

42 Article 53 of the ICC Statute requires the prosecutor to determine whether ‘taking into account the gravity of the crime and the interests of the victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice’. The OTP has stated in that a decision not to investigate under this provision is a ‘course of last resort’. See ‘Policy Paper on the Interests of Justice’ Office of the Prosecutor, International Criminal Court (September 2007), 9.

43 A. Greenawalt, ‘Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court’, Virginia Journal of International Law, 50 (2009), 117.

5 A synthesis of community-based justice and complementarity

1 Articles 12–19, Rome Statute.

2 Footnote Ibid., Article 1. See also M. Newton, ‘The Quest for Constructive Complementarity’, in C. Stahn and M. El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: Cambridge University Press, 2011).

3 J.N. Clark, ‘Peace Justice and the International Criminal Court: Limitations and Possibilities’, Journal of International Criminal Justice, 9 (2011), 521, 523 (discussing the varying reactions of Bosnian Serbs and Muslims to the arrest of ICTY fugitive Radovan Karadžić in July 2008, as well as the diversity of responses to the release of convicted Lockerbie bomber Abdelbaset Ali al-Megrahi in 2009).

4 There was extensive debate during the drafting of the Elements of Crimes for the International Criminal Court over the relative merits of the terms ‘perpetrator’ or ‘accused’. Though some delegations were concerned that the term ‘perpetrator’ would undermine the presumption of innocence, the delegates to the Preparatory Commission (PrepCom) ultimately agreed to use the former in the Elements after including a comment in the introductory chapter that ‘the term “perpetrator” is neutral as to guilt or innocence’. See UN Doc PCNICC/2000/INF/3/Add.2 (2000), in K. Dormann, Elements of War Crimes under the Rome Statute of the International Criminal Court (Cambridge: Cambridge University Press, 2002), 14.

5 S. Chesterman, You, The People: The United Nations, Transitional Administration, and State-Building (New York: Oxford University Press, 2004), 8.

6 The irony of this truth is that the actual prosecution of Saddam Hussein and other leading Ba’athists took place in an internationalised domestic forum precisely because, inter alia, Iraqis saw grave injustice arising from prosecuting only the subset of crimes committed after 1 July 2002, as required by the jurisdictional limitations of the Rome Statute. M.A. Newton and M.P. Scharf, Enemy of the State: The Trial and Execution of Saddam Hussein (New York: St Martin’s Press, 2008), 7680.

7 Article 17 (1), Rome Statute.

10 Article 17 (1)(d), Rome Statute.

11 A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 18. Mark Osiel has correctly noted that prosecutors in international forums have divergent professional and career motivations than domestic prosecutors. The divergent incentives and perspectives make the process of complete ‘coherence’ between international and domestic systems quite unattainable. M. Osiel, Making Sense of Mass Atrocities (New York: Cambridge University Press, 2009), 169185.

12 J.N. Clark, ‘The Limits of Retributive Justice: Findings of an Empirical Study in Bosnia and Hercegovina’, Journal of International Criminal Justice, 7 (2009), 463, 467.

14 IX Department of State Bulletin No 228, 310, reprinted in Report of RH Jackson United States Representative to the International Conference on Military Tribunals (Department of State Publication 3080, 1945), 11. The Moscow Declaration was actually issued to the Press on 1 November 1943. For an account of the political and legal manoeuvering behind the effort to bring this stated war aim into actuality, see P. Maguire, Law and War: An American Story (New York: Columbia University Press, 2000), 85110.

15 ‘Persons whose offenses have a particular geographical location outside Japan may be returned to the scene of their crimes for trial by competent military or civil tribunals of the local jurisdiction.’ Regulation 5 (b), Regulations Governing the Trial of War Criminals, General Headquarters, United States Army Pacific, AG 000.5 (24 September 1945).

16 Report of the UN Secretary-General, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies’, UN Doc S/2004/616 (23 August 2004), 17.

17 B. Crocker, ‘Iraq: Going it Alone, Gone Wrong’, in R.C. Orr (ed.), Winning The Peace: An American Strategy for Post-Conflict Reconstruction (Washington, DC: Center for Strategic and International Studies, 2004), 281.

18 For a detailed account of the Cold War politics and unravelling of wartime unity that doomed the effort to convene a second International Military Tribunal after World War II, see D. Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (Oxford: Oxford University Press, 2001), 2837.

19 Article 53 (1), Rome Statute. This language parallels that of Article 15, which governs the proprio motu powers of the Prosecutor, and provides that such proprio motu authority to open an investigation is discretionary, rather than mandatory. At least one eminent authority has surmised that Article 53 only applies to situations that have been referred to the Court either by states party or by the Article 13 action of the United Nations Security Council. W. Schabas, The International Criminal Court: A Commentary on the Rome Statute (New York: Oxford University Press, 2010), 659.

20 Article 53 (1)(c), Rome Statute.

21 Footnote Ibid., Article 53 (3)(a).

22 Footnote Ibid., Article 53 (3)(b).

23 ‘Policy Paper on the Interests of Justice’, Office of the Prosecutor, ICC (September 2007), 2 (OTP, ‘Policy Paper on the Interests of Justice’). This approach clearly reflects the input received from Human Rights Watch, which noted that the term was not ‘precisely defined’, and urged a narrow construction ‘most consistent with the object and purpose of the Rome Statute’. ‘The Meaning of “The Interests of Justice” in Article 53 of the Rome Statute’, Human Rights Watch Policy Paper (June 2005).

24 J.E. Mendez, ‘Justice and Prevention’, in C. Stahn and M. El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: Cambridge University Press, 2011), 33, 36.

25 OTP, ‘Policy Paper on the Interests of Justice’, 3.

28 Report of the UN Secretary-General, para. 49.

29 R. Goldstone and N. Fritz, “In the Interests of Justice” and Independent Referral: The ICC Prosecutor’s Unprecedented Powers’, Leiden Journal of International Law, 13 (2000), 655, 662.

30 Schabas, The International Criminal Court, 663.

31 F. Okumu-Alya, ‘The International Criminal Court and Its Role in the Northern Uganda Conflicts – An Assessment’, Uganda Living Law Journal, 4 (2006), 16, 48.

32 C. Dolan, ‘Imposed Justice and the Need for Sustainable Justice in Northern Uganda’, Presentation to the Beyond Juba Project/AMANI Forum training in Transitional Justice for Parliamentarians (18 July 2008).

33 S. Oola, ‘Bashir and the ICC: The Aura or Audition of International Justice in Africa?’ Oxford Transitional Justice Research Working Paper Series (27 February 2009).

34 The Amnesty Act, 2000.

35 Footnote Ibid., para. 2 (1):

(1) An amnesty is declared in respect of any Ugandan who has at any time since the 26th day of January, 1986, engaged in or is engaging in war or armed rebellion against the government of the Republic of Uganda by—

actual participation in combat;

collaborating with the perpetrators of the war or armed rebellion;

committing any other crime in the furtherance of the war or armed rebellion; or

assisting or aiding the conduct or prosecution of the war or armed rebellion.

36 Thomas Kwoyelo alias Latoni v. Uganda (Const. Pet.No. 036 Of 2011(reference)) [2011] UGCC 10 (22 September 2011). Article 28 (10) of the Ugandan Constitution states, ‘No person shall be tried for a criminal offense if the person shows that he or she has been pardoned in respect of that offense.’

37 On this debate, see Refugee Law Project’s statement on the ICC investigation in northern Uganda (5 August 2004).

38 See J. Latigo, ‘The Acholi Traditional Techniques of Conflict Management’, Uganda Living Law Journal, 4 (2006), 1, and J.F. Adong, ‘Restorative Justice as a Strategy for Achieving Lasting Peace, Justice and Reconciliation in the Northern and North Eastern Uganda’, Uganda Living Law Journal, 5 (2007), 27.

39 Progress in Peace Building: Afghanistan, United States Institute of Peace (February 2011).

40 T. Barfield, N. Nojumi, and J. Their, ‘The Clash of Two Goods: State and Non-State Dispute Resolution in Afghanistan’, in D. Isser (ed.), Customary Justice and the Rule of Law in War-Torn Societies (Washington, DC: United States Institute of Peace, 2011), 159193, 160.

41 M. Gardizi, K. Hussmann, and Y. Torabi, ‘Corrupting the State or State Crafted Corruption?’, Afghanistan Research and Evaluation Unit (June 2010), 3.

42 A. Wardak, ‘Jirga – Power and Traditional Conflict Resolution in Afghanistan’, in J. Strawson (ed.), Law After Ground Zero (London: Glasshouse Press, 2002), 187, 190.

43 D.J. Smith and S. Manalan, ‘Community-Based Dispute Resolution Processes’, Bamiyan Province, Afghanistan Research and Evaluation Unit – Case Study Series (December 2009), 41.

44 D.J. Smith, ‘Community-Based Dispute Resolution Processes’, Nangarhar Province, Afghanistan Research and Evaluation Unit – Case Study Series (December 2009), 11.

47 D.J. Smith, ‘Examining Community-Based Dispute Resolution Processes’, Podcast, Afghanistan Research and Evaluation Unit (3 November 2010).

48 L. Moreno-Ocampo, ‘Statement made at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court’ (16 June 2003).

49 Tim Allen offers the example of the word timo-kica, which means reconciliation/doing forgiving, but is often used by people who are simultaneously enthusiastic for prosecutions and punishments. T. Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army (London: Zed Books, 2006), 13.

50 Barfield et al., ‘The Clash of Two Goods’, 167.

51 L. Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Portland: Hart Publishing, 2008).

52 L. Sadat, ‘Exile, Amnesty, and International Law’, Notre Dame Law Review, 81 (2006), 955, 966.

53 Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Prosecutor v. Morris Kallon, SCSL-2004–15-AR72(E), and Prosecutor v. Brima Bazzy Kamara, SCSL-2004–16-AR72(E), Appeals Chamber, SCSL, 13 March 2004. The decision notes that states are free to grant amnesties to be governed exclusively by domestic law that have no binding effect on institutions governed by international law.

54 Conversely, amnesty itself provides no obvious path towards reintegration or reconciliation. Some recipients of amnesty can also become a visceral focal point within a community, one that reminds citizens of the past and serves to re-victimize others. Osiel, Making Sense of Mass Atrocities, 233.

55 C.P. Trumbull IV, ‘Giving Amnesties a Second Chance’, Berkeley Journal of International Law, 25 (2007), 283, 320.

56 Proposed additions indicated in italics.

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×