A new book on the pedagogy of crises was launched in January 2019 at the ISS, edited by Karim Knio and Bob Jessop. In one of its chapters that focuses on the legitimacy crisis in the system of international criminal justice, Jeff Handmaker argues that the politics of international law must be taken seriously in order to address not only the legal legitimacy problems attached to the functioning of international criminal tribunals, but also the external political challenges it faces.
Law is impartial, neutral, objective, certain, and predictable … most political scientists would shake their heads in dismay at such a statement. However, it accurately reflects values that are strongly held by international lawyers. This includes legal professionals who are involved in referring, investigating, prosecuting, adjudicating, and defending international crimes.
The International Criminal Court (ICC) came into being in 2002. It was not an easy journey, beginning hundreds of years ago when states started exercising jurisdiction over piracy in the high seas, defining it as a violation of the Law of Nations. Following the gruesome aftermath of the Second World War onwards, the Nuremburg and Tokyo war crimes tribunals were established as ad hoc international institutions, creating a solid institutional precedent and jurisprudence.
The ICC exists alongside other ad hoc international and ‘hybrid’ institutions, such as the Special Court of Sierra Leone, the Cambodia Tribunal, the Lebanon Tribunal, and the Yugoslav and Rwanda Tribunals that preceded them. While nations have long had jurisdiction over crimes committed in their own territories, the ability to prosecute international crimes, irrespective of the nationality of the perpetrator or the victims or where the crimes took place, with the exception of piracy, is still a relatively recent phenomenon.
Since its creation, the ICC has been plagued with technical and resource capacity issues as well as significant management problems, including challenges in hiring qualified staff members. The ICC has also faced political challenges to its legitimacy. The USA, primarily through the bombastic statements of John Bolton, who has served in diplomatic functions for both the Bush and Trump administrations, has actively sought to delegitimise the ICC. Meanwhile, following a string of indictments, particularly against leaders of both the Sudanese and Kenyan governments, the Africa Group of Assembly of State Parties to ICC have accused the ICC prosecutor of Africa bias.
But these are surface-level problems, what Jessop refers to as ‘accidental’ crises that can be somewhat predictably resolved. Indeed, giving either of these surface-level problems credence glosses over a deeper crisis of legitimacy faced by the ICC, which I discuss in my own contribution to the book by Jessop and Knio, namely:
the crude and culturally essentialist way in which the ICC prosecutor, and the NGOs that support the Court, regard themselves, the perpetrators, and the victims/survivors of international crimes … fail(ure) to consider the complex social, cultural and political contexts in which these crimes took place.
This crisis of legitimacy is born largely out of the dominant, liberal underpinnings of international law, which tend to fetishise supposedly Western values. Accordingly, the values of individual elites have held sway over general societal values, and individuals whose human rights have been violated have been expected to make claims themselves against the source of those violations, rather than expect the state to provide a remedy. As a result, there is an innate tendency to regard violators of international crimes as coming from the global South rather than the global North, and committed by individuals rather than by corporations.
The ICC, with its broad and independent mandate and direct jurisdiction over individual violators of international crimes, represents a significant, potential challenge to these values and to chart a new path in securing global justice. This requires the court to not only withstand, but actively confront the external pressures it faces.
Like any institution, the ICC is managed and staffed by individuals who more than often possess a liberal understanding of international law. This is clearly reflected in the practice of the ICC. Drawing on his conceptualisation of the so-called SVS Metaphor, Kenyan legal scholar Makau Mutua has observed that key actors in international justice efforts have been subject to an intense reductionism. Hence, their approach to complex human rights problems is characterised by simplistic and racialised categories of saviours (from the Global North) pitted against savages (culturally speaking, from the Global South) in order to protect interests of ‘helpless’ victims (also from the Global South).
This untenable situation should trigger some serious and critical reflection by the many legal professionals engaged in the work of international criminal justice. First and foremost, decisions by international prosecutors over who, when and how to prosecute international crimes always have a context that is rarely appreciated, let alone openly acknowledged and engaged with. Second, while the complementarity principle of the ICC Rome Statute ought to compel a much greater commitment to build capacity for prosecuting international crimes at the national level, to date this has not been adequately prioritised by the ICC and its member states. Rather than seeking to preserve elusive legal values, a critically reflexive approach to international criminal justice would likely avoid what Martti Koskenniemmi has termed techno-managerial solutions to complex social and political problems and enable a more transparent engagement with the volatile political environment in which the ICC operates.
These reflections are also reflected in another, recent volume that I have co-edited with ISS colleague Karin Arts on Mobilising International Law for ‘Global Justice’ (Cambridge 2018), notably regarding the system of international criminal justice.
In short, the politics of international law must be taken seriously in order to address the political, and not just the legal legitimacy problems attached to international criminal justice. It is also essential to cultivate a contextualised understanding among legal experts of how international criminal justice functions, entailing a socio-legal approach to both legal practice and analysis. Finally, it is crucial to develop a strategic approach to international criminal justice that transparently engages with these matters and sidesteps simplistic and often self-serving critiques that dominate discussions on international criminal justice generally and the ICC in particular.
Image Credit: Mark L. Taylor/www.thecommonercall.org
About the author:
Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.