Tag Archives international law

16 Days Activism Against GBV Series| The Future of Transgender Liberation is International Law

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International law has an incredible potential to be the vehicle through which global transgender liberation is realized. In this reflective blog, Paxton McCausland  argues that international law is already being used to improve the quality of life for transgender peoples across the world.  Sadly however, this dream will never be fully accomplished with the continuation of horrific impunity.

Photo credit: Unsplash

As an American grassroots organizer for transgender liberation, I never envisioned myself becoming interested in or even inspired by law. During my undergraduate education, in which I studied Political Science, I took a Constitutional Law class and was deflated, disappointed and bored. American constitutional law has very few safeguards for transgender individuals and the Supreme Court, in its present composition at least, is generally hopeless. Having completed several unpaid internships with politicians who used my work without crediting me, I began to understand that American politics were not for me. My despondent view of the law changed when I began to learn about international law in graduate school.

 

It turns out that international law has incredible potential to realize and spread transgender liberation. While there are several forms of international law, all with their own guidelines, concepts and modalities, in this blog post I will use a broad definition, meaning that the points I make do not align with one specific form of international law. Additionally, I must establish that I am not an international lawyer, but rather merely a liberation nerd, endlessly excited by the potential of international law. That being said, international law not only contains an actual definition of gender, it also contains radical promotion of self-determination, a concept I had never heard of within the domestic law of my own nation. Both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, major tenants within the international human rights law, begin with the phrase ‘All peoples have the right of self-determination’. Self-determination as transgender liberation, as I have understood it in my background as a trans organizer, advocates for an individual to understand and decide for themselves who they are and what is best for them. In theory, the ultimate expression of transgender liberation is the truest expression of self-determination. This incredible tool for international trans liberation, however, cannot reach its full potential while blatant impunity against war crimes and continuous double standards for the worst and most powerful offenders continues. In a very obvious example, the United States has been protecting Israel from punishment, as well as allowing the country’s many war crimes and crimes against humanity, such as the blatant encouragement of illegal Israeli settlements, to continue with impunity for decades via the UNSC veto power and other such methods. The longer this impunity continues, the weaker international law becomes. I would even go so far as to say that the future of international transgender liberation rests on the protection and sanctity of international law, and therefore the end of such impunity.

 

International law has already begun to benefit and protect transgender, gender-non-conforming, nonbinary and Indigenous third gender peoples throughout the world. Despite a somewhat problematic definition of gender within the Rome Statute, which confuses sex and gender, the International Criminal Court established the understanding that gender is socially constructed as an international law standard through the Office of the Prosecutor’s Policy on the Crime of Gender Persecution. For more information on the debate regarding the definition of gender in international law, I encourage readers to engage with Alexandra Lily Kather and Juliana Santos de Carvalho’s brilliant article on the subject. As mentioned above, international law’s standard of the concept and promotion of self-determination is extremely helpful in establishing transgender people’s right to gender-affirming care and ability to self-identify. Many scholars, such as B. Camminga, advocate for trans folk’s right to legal gender recognition (LGR), or accurate depiction of an individual’s gender identity on legal documents, on the basis of self-determination alone. In arguing for LGR on this basis, requirements for trans people to ‘prove’ their gender identity (refer to the Camminga article linked above), through costly, cumbersome, invasive and harmful medical diagnosis or bottom surgery, a form of reproductive violence and forced sterilization, are rendered unnecessary. In the unfortunate situation in which a trans person has a well-founded fear of persecution based on their membership to a particular social group – the trans community – international law grants them, via the 1951 Refugee Convention, refugee status and allows them to apply for asylum. The international law principle of non-refoulement states that it is prohibited for these individuals to be sent back to their countries of origin if their return would most likely result in a serious threat to their life or freedom. These are a few of the ways international law is already working toward transgender liberation.

 

Given these standards of international law and the enormous potential of this type of law to realize transgender liberation, it is imperative that all roadblocks to its success be eliminated. We cannot tackle the toughest battles until the means by which the battles can be fought are working as they were intended to. Liberation builds on itself – at a macro and micro level, we are all fighting the same battle for liberation. As such, protecting international law not only ensures the protection and safety of trans and gender-non-conforming individuals, today and tomorrow, but it additionally ensures protections of rights for everyone. By battling impunity, we are allowing trans people, Palestinians, Sudanese, Royhinga, Yadzidi and everyone to live full and dignified lives everywhere.

 

They say the future of international law is domestic law. Given this adage, it is my greatest hope that one day I can see the laws in my own country reflect those that protect my people through international law. At that point, with my ultimate life and career goal being international transgender liberation, I will be able to die happy. Protect international law. Protect the International Criminal Court. The liberation of transgender peoples and of all peoples depends on it.

 

Opinions expressed in Bliss posts reflect solely the views of the author of the post in question.

 

About the author:

Paxton McCausland

Paxton McCausland (he/they) is an organizer and academic who began working toward gender justice as a grassroots organizer for transgender liberation. They were recently appointed as a board member for the Women’s Initiatives for Gender Justice and received a Master of International Affairs from the School of International and Public Affairs. Paxton currently resides in Pennsylvania.

 

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“The principle of humanity in war’’: a reflection on the IHSA Annual Lecture 2024

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Image by Pixabay

In this blog, Andrew Cunningham (Independent Humanitarian Practitioner and Board Member of the International Humanitarian Studies Association, IHSA) considers the principle of ‘humanity’ during conflict, and its interaction with other key humanitarian principles including neutrality, impartiality, and independence. He also looks at how humanitarians can integrate dignity into their work, and how these principles may develop in highly politicised and fast-moving times. This blog summarises a contribution to the roundtable that followed the inaugural IHSA Annual Lecture and is part of a series of blogs produced following the Lecture, which took place in Bergen in May 2024 under the theme of “War and Humanity”.

The principle of humanity is often overlooked when we talk about the humanitarian principles. Focus is normally placed on the ‘big three’ principles – impartiality, independence, and neutrality. The most important of these is impartiality, which is the promise of non-discrimination and lack of bias in aid provision. The idea is to help those most in need regardless of who they are. Impartiality is a central and required aspect of humanitarian’s identity.

Independence, which allows aid organisations to make their own choices outside political interference, is also a foundational principle and facilitates the adherence to impartiality. The promise made by independent humanitarian aid organisations to host governments and non-state actors is that they make their own decisions and are not political tools of foreign governments.

More problematic, and much debated, is the principle of neutrality, which at its core demands that aid organisations do not become involved in political controversies. But some organisations (for example MSF) view it as a limitation on witnessing, speaking-out, and public communications. Do aid organisation have the right, or even obligation, to affect the political situations which lead to humanitarian crises?

But at the top of the list is the principle of humanity. Humanity is the collection of humans, some have the ability to help others, and some are in need of help. For, humanitarian action is simply humans helping other humans in need. Humanity is also a term which denotes a set of characteristics which must be preserved, such as the dignity of the person and a whole set of ‘human’ rights. This may all seem self-evident, yet it is worth reflecting on this lest we stop grounding what we do in the basics.

Humanity, dignity, and solidarity

Dignity is a consequence of attending to the humanity of those caught in a crisis. We all want to be treated with dignity at all times, of course. But those caught up in conflict are even more starved of dignity as their isolation, sense of abandonment, and fear of violence grows.

Humanitarian action doesn’t always do the best job at attending to the dignity of the individual, as so often masses of people are affected by war and are engaged with by organisation as populations. One way in which people in danger can be afforded dignity is the proximity of aid workers to those being assisted. No one wants to ‘feel like a number’ and be just a recipient of material aid or a beneficiary.

A feeling of human solidarity is also important, as this example of my work in Chechnya shows: After several years working in Chechnya during the last war, I was checking-in with the staff at a hospital we had long been supporting. We had been providing a lot of medical supplies and I was asking about its usefulness. But the chief doctor stopped me at a certain point and said that yes, the material aid had been needed, and appreciated. But that was not the most crucial factor. In turns out that not being forgotten, being treated with dignity by people who cared, was the most important aspects of our intervention. Solidarity can be seen as a mix of caring enough to help and being willing to share a moral, if not always a physical, space, with those caught-up in a crisis.

Does digitalisation lack humanity?

One way in which humanitarian aid may be diverting from this idea is through the ‘digitalisation’ of aid delivery. No one wants to only deal with an app on their smart phone or be forever linked to a set of biometrics which defines one’s aid category. There is more to aid than this transactional way of providing it. Proximity to human aid workers is vital to reinforce a person’s sense of dignity. In the search for efficiency and greater outputs (as opposed to outcomes), have we gone too far? Is there still room for the proximity of humans helping other humans? And where is the locus of dignity in this version of aid?

Wars provide a difficult terrain to navigate. The threat of violence to aid actors as well as those living in the crisis makes being proximate hard. The chief doctor I mentioned above had not been visited for quite some time by anyone form my organisation due to the violence in the area. But yet he knew we were sill ‘there’.

Conclusion

Let us return to the principle of humanity which is the highest order principle from which everything else is derived. Impartiality helps guide our operational choices – who we help and why. And independence and neutrality are ways of working which help provide the space to work. Together these all help make state and non-state actors comfortable with our motivations.

At its essence, we should never forget that humanitarian aid is humans helping humans, which requires proximity, dignity and solidarity. We should all remind ourselves periodically of the importance of the principle of humanity as the foundational humanitarian principle.

Opinions expressed in Bliss posts reflect solely the views of the author of the post in question.

About the author

Andrew Cunningham

Andrew has thirty years’ experience in the humanitarian sector, twenty-five years of which with MSF. Andrew has worked in a wide variety of contexts and geographical locations in Africa, the Former Soviet Union, and Asia. He has a PhD in War Studies from King’s College and has published a professional book in the Routledge Humanitarian Studies series on the topic of INGO-State relations. Andrew has served as a member of the Board of MSF International and is currently a board member of the International Humanitarian Studies Association. Andrew works as a researcher, strategic and operational evaluator, and governance advisor for various humanitarian organisations.

Are you looking for more content about Global Development and Social Justice? Subscribe to Bliss, the official blog of the International Institute of Social Studies, and stay updated about interesting topics our researchers are working on.

Verdict upheld against former president in Suriname (Part II)

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On 20 December 2023, Suriname’s highest court of appeal, the Hof van Justitie issued a judgement, confirming the conviction and twenty-year prison sentence of Desiré Delano Bouterse in what has been the longest criminal trial in the history of Suriname. In this article, which forms the second of two parts, Jeff Handmaker explains how the trial has been accompanied by a great deal of political drama and legal manipulations, but also judicial courage and perseverance by the victims of what has been referred to as the 1982 December Murders.

Image by We El at Dutch Wikipedia

Procedural delays

Back in 2012, there were hopes among many colleagues, including myself as a trial observer for the International Commission of Jurists (ICJ) who supported the trial observation mission, that the Court would issue a definitive judgement on the constitutionality of the Amnesty Law (or not). This proved to be too optimistic. The process was hampered by further delays, most of which were triggered by the accused’s defence counsel raising procedural obstacles in lieu of substantive arguments, each of which demanded a decision by the Court and hence served to undermine the rule of law.

The ICJ responded by issuing a press release in 2013 outlining concerns over how ‘unacceptable’ the delays were, and in particular how delays caused great uncertainty. Eventually, the Court concluded on 9 June 2016 that the Amnesty Law was unconstitutional and therefore the trial ought to resume. President Bouterse responded shortly afterwards with an Executive Order determining the trial to be a threat against the country’s national security (with specific reference to economic grounds) and ordered the prosecutor to halt their efforts. Rather than stopping the trial entirely, this merely served as a further source of delay. In the meantime, the Inter-American Commission on Human Rights expressed its ‘deep concern’ about persistent delays in the resumption of the trial.

After another four years of procedural obstacles, the ICJ eventually issued a second report and statement on 8 May 2017 on the ‘Importance of Resuming the Trial Without Undue Delay’. In this report, the ICJ emphasised how ‘justice delayed is justice denied’. The ICJ did not engage in the substance of the allegations against Bouterse and his co-accused, but instead focussed on two issues. Firstly, the ICJ’s statement focussed on the context in which the trial was taking place, in particular the social and political climate which included statements by Bouterse that those who had opposed the Amnesty Law were ‘enemies of the people’. Secondly, the statement presented arguments drawing on international law that emphasised the need for a fair and speedy trial and an effective remedy for victims of human rights violations.

After a further round of further delays, including illness by one of the judges, the trial eventually resumed on the merits, in other words the substantive nature of the atrocity crimes that Bouterse and others were charged with.

 

Judgement and sentence for atrocity crimes

The Court issued a judgement on 29 November 2019. To the surprise of many, the Court found Bouterse and several of the accused (though not all) to be guilty of atrocity crimes.  Bouterse was sentenced to a prison term of twenty years. However, in a noticeable exception to criminal procedure, the court did not order an arrest warrant to be issued.

Unable to send a follow-up, in-person trial observation mission, the ICJ issued a press statement, both in English and in Dutch, calling ‘on all parties to respect the rule of law and to allow the legal system to run its course, in accordance with international fair trial standards, without further delays, threats or other forms of executive interference’.

Bouterse’s lawyers decided to appeal both the conviction and sentence and a new trial resumed in the country’s appeals court. Six months later, in July 2020, Bouterse stepped down as President of Suriname after his political party lost the election to the opposition party, led by Chandrikapersad Santokhi.

 

Appeal

In October 2020, the ICJ once again expressed its concern and gave new impulse to its trial observation mission by announcing a new trial observer, the former Attorney-General of Belize and senior barrister, Godfrey Smith, SC. Physical attendance was impossible at this stage due to Covid-related lockdown regulations.

Despite his inability his inability to attend in person, Smith continued to monitor the trial from afar, emphasising, in September 2021, how important it was that the trial proceed ‘without delay, ensuring due impartiality, independence and fairness to all concerned in the interests of the victims, the accused and the rule of law’.

 

Historic judgement on 20 December 2023

After 15 years, anticipation that Suriname Appeals Court would issue a final judgement was high. On this occasion, the ICJ decided to again send another, experienced in-person trial observer, Reed Brody, one of the Commissioners of the ICJ and a veteran human rights lawyer who had been involved in cases against previous heads of state, including: Augusto Pinochet of Chile, Hissène Habré of Chad and Jean-Claude Duvalier of Haiti, among others.

The decision of the Appeals Court on 20 December 2023 to confirm the conviction and twenty-year prison sentence of Bouterse was again not accompanied by an arrest warrant.  While in the first instance this was regarded as understandable given the likelihood that Bouterse would appeal (along with his significant public profile). In the second instance, especially the legal justification was less clear, and while Bouterse did not, as a last resort, apply for the final domestic remedy available, which was to seek a pardon from President Santokhi, he did submit a last-ditch appeal to the prosecutor, with new lawyers, to avoid being arrested (which was unsuccessful).

At the time of writing, the Court eventually issued an order that those accused of crimes were expected to report to the prison in Paramaribo. Some of the accused honoured this. Former president Bouterse did not and there remains a great deal of speculation where he may be.

Irrespective of this, the judgement of the Appeals Court in Suriname can be regarded historic. As Brody confirmed:

Today’s decision is a victory for the families of Bouterse’s victims, who never gave up, and for all those around the world seeking to bring powerful abusers to justice. It should serve as another reminder that accountability for the most serious crimes has no expiration date.

Read the first part of the blog: https://wp.me/p9fvbD-76v

Image by We El at Dutch Wikipedia: https://creativecommons.org/licenses/by-sa/4.0/deed.en

Opinions expressed in Bliss posts reflect solely the views of the author of the post in question.

About the author:

Dr. Jeff Handmaker is Associate Professor of Legal Sociology at the International Institute of Social Studies of Erasmus University Rotterdam and has published widely on topics concerning Israel’s decades-long impasse with the Palestinians. He conducts research on legal mobilization.

 

Are you looking for more content about Global Development and Social Justice? Subscribe to Bliss, the official blog of the International Institute of Social Studies, and stay updated about interesting topics our researchers are working on.

 

Monitoring an atrocity crimes trial in Suriname (Part I)

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On 20 December 2023, the Hof van Justitie, Suriname’s highest court of appeal, issued a judgement confirming the conviction and twenty-year prison sentence of Desiré Delano Bouterse in what has been the longest criminal trial in the country’s history. In this article, which forms the first of two parts, Jeff Handmaker explains the background to the trial, and why the International Commission of Jurists started to actively monitor this trial since 2012.

Image by Antonisse, Marcel / Anefo (CC Zero)

The 1982 December Murders

What makes this trial unique and special is not only the severity and nature of the crimes being charged, but the fact that the principal accused is a former head of state. The charges against Bouterse and other accused comprised atrocity crimes, including torture and extra-judicial executions of fifteen men, allegedly committed in 1982 under the leadership of then Sergeant Desi Bouterse during a military coup that allegedly also included the complicity of the Dutch government.

According to Amnesty International, which has been following the case already since 1982, the killings were ‘never properly investigated’. This understanding aligned with other human rights organisations, including the Netherlands Lawyers Committee for Human Rights (NJCM) which released a report on 14 February 1983, and the International Commission of Jurists (ICJ) which conducted a mission and issued a report on 4 March 1983.

While the opportunities for seeking justice at the time were virtually non-existent, the events of December 1982 have certainly not been forgotten. In particular, the victims’ families of those men who lost their lives have refused to remain silent and remained committed in securing redress. Their advocacy was accompanied by a growing academic scholarship on atrocity crimes, including by Suriname jurist Gaetano Best, who later completed an (unrelated) doctoral thesis in 2016 at the University of Amsterdam on ‘Fair and Accurate Fact-Finding in Dutch Atrocity Crimes Cases‘ and subsequently returned to practice law in Suriname, which later also included frequent commentary on the Bouterse trial.

 

The trial begins

On November 2007, in the midst of advocacy by the victims of those killed in December 1982, a trial was initiated against Bouterse and twenty-four other individuals, including sitting government officials. The court was located on a naval base in Boxel just outside the capital city of Paramaribo, and comprised two chambers: a civilian chamber (criminal court) and a military chamber (court-martial) each with a three-judge panel. Both chambers had the same, highly experienced judge-president, Justice Cynthia Valstein-Montnor.

Three years later, Bouterse was elected as president of Suriname. Remarkably, the trial continued, largely unhindered by these developments. Eventually, the Suriname parliament passed an Amnesty Law in 2012 that aimed to extend immunity for prosecution to Bouterse and other co-accused. Emboldened by this, Bouterse’s lawyers argued that the prosecutor had no authority to purse the charges against him.

After five years of delays, and little tangible progress in the trial on its merits, doubts began to emerge as to whether the Court had the capacity to consider this matter in a free, impartial and objective manner.

 

ICJ trial observation

Confronted with persistent delays as well as some reports of intimidation against journalists, court officials and the public prosecutor, the ICJ, as one of the largest and most established human rights organizations in the world based in Geneva, decided to launch a trial observation mission. This was in anticipation of a judgement that the Court was due to issue in May 2012.

The ICJ’s first, in-person trial observation mission took place from 8 – 12 May 2012. As a British lawyer, with some years of experience teaching post-graduate students in the country and with a knowledge of Dutch (the official language of Suriname), I was asked to lead the mission. This comprised a combination of tasks, set-out in a trial observation manual that the ICJ had produced earlier, which drew on the experiences of earlier ICJ trial observation missions. This included meeting with officials, making clear to all actors that they were under scrutiny, collecting findings about the context in which the trial was being held in order to ensure compliance with international due process requirements, issuing press releases, speaking to the media and of course issuing a report.

 

Court’s first Judgement in 2012

The occasion of an in-person mission in May 2012 was to attend the trial itself and to speak with various key stakeholders to get a sense on whether international standards of due process were being respected. Based on its findings and a comprehensive analysis of both Suriname law and international law, the conclusions that we drew in the report were fourfold. First, while the Government of Suriname had co-operated fully with the trial observation mission and did not hinder the work of the mission, the court had not yet clearly decided on the implications of the Amnesty Law. Second, there appeared to be space for a fair trial in Suriname, although continued procedural delays raised questions about this. Third, the role of a free, professional and independent media was seen to be crucial. And finally, public interest in the trial from diplomatic missions, as well as international organizations, promoted greater visibility of the outcome and integrity of the process.

In other words, while there was no overt effort to subvert the rule of law by force, even by Bouterse, as both the sitting President of the country and the principal accused, the main legal issue at stake had not been conclusively established. This was namely: whether (1) the passing of an Amnesty Law was valid, which implied that the trial ought to be stopped altogether or alternatively, (2) the Amnesty Law was not consistent with the constitution and therefore the trial should proceed.

As discussed in Part II, the next stage in this legal drama proved to be both eventful and for us as trial observers, very frustrating.

Read the Second part of this blog: https://wp.me/p9fvbD-76E

Image by Antonisse, Marcel / Anefo (CC Zero): https://commons.wikimedia.org/w/index.php?search=december+moorden+suriname&title=Special:MediaSearch&go=Go&type=image

Opinions expressed in Bliss posts reflect solely the views of the author of the post in question.

About the author:

Dr. Jeff Handmaker is Associate Professor of Legal Sociology at the International Institute of Social Studies of Erasmus University Rotterdam and has published widely on topics concerning Israel’s decades-long impasse with the Palestinians. He conducts research on legal mobilization.

 

Are you looking for more content about Global Development and Social Justice? Subscribe to Bliss, the official blog of the International Institute of Social Studies, and stay updated about interesting topics our researchers are working on.

 

Learning from the crisis in international criminal justice by Jeff Handmaker

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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

JeffHandmakerISS
About the author:

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

He is a regular author for Bliss. Read all his posts here. 

 

 

Globalisation, international law and the elusive concept of ‘global justice’ by Jeff Handmaker and Karin Arts

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We all talk about the search for ‘global justice’, but what does it really mean, and how can international law help achieve it? The elusive concept of ‘global justice’ is discussed in a new book launched tomorrow at the ISS and edited by ISS scholars Jeff Handmaker and Karin Arts. This blog post shortly introduces the book, which seeks to show how legal vocabularies have framed the possibilities for mobilising international law as an instrument for attaining global justice.

THE ELUSIVE CONCEPT OF (GLOBAL) JUSTICE

Just as is the case with the term globalisation, notions of justice, and even more so global justice, have been elusive and difficult concepts to define. While questions on the rule of law still reveal a liberal leaning, broader questions have also come up, asking: how can law serve as an instrument of global justice?  Such questions explore among others the politics of state (non-)compliance with these norms and the strategic challenges involved in accomplishing global justice.[1]

 LAW AS AN INSTRUMENT FOR PURSUING GLOBAL JUSTICE

Similar to conceptualisations of justice, the function of law as an instrument for global justice is ambiguous, too. Law and legal institutions articulate bold promises, yet contain very definite limits to what they can deliver, let alone explain in relation to complex social phenomena.

Legal perspectives have a very different starting point than other scholarly perspectives, particularly within the social sciences. While there are numerous viewpoints among legal scholars about the content of law, its origins, interpretations, and the institutions created to enforce it, legal scholarship has generally resisted multi- or inter-disciplinary study.

On the other side of the scholarly plain, social scientists often misunderstand law. Law has been regarded as irrelevant, particularly by scholars studying culture in relation to identity, race, lifestyle, ritual, and other factors, conceptualising law and culture as ‘distinct realms of action and only marginally related to one another’. [2]

In our understanding, in so many respects law fulfils a central function in society, in political discourse and in social relations. But its resistance to other scholarly perspectives, and the way in which some legal scholars fail to critically address the normative, liberal bias embedded in law has limited our understanding of the complex interactions between politics and law, not to mention its potential as a vehicle for reaching global justice.

THE STRUCTURAL BIAS IN INTERNATIONAL LAW

Martti Koskenniemi, whose work is a major intellectual reference point for the book, has argued that there is a ‘structural bias’ embedded within global governance institutions, itself a consequence of the fragmentation of international law.[3] According to this concept, international law is not the homogenous system it once was, but has evolved into ‘a wide variety of specialist vocabularies and institutions’.[4] However, the rhetoric of rights has lost its ‘transformative effect’ through over-legalistic explanations and is ‘not as powerful as it claims to be’.[5] Koskenniemi argues that one should look beyond the normative liberal tendency that underpins the world view of many lawyers, that is, to look beyond the content of law.

On the one hand, Koskenniemi argued that international law has been criticised as ‘too apologetic to be taken seriously’ because of its dependence on the political power, and thus the power politics of states.[6] On the other hand, international law has been considered to be too far removed from power politics and thus ‘too utopian’ (or speculative) to meet the challenges of a complex globalised world.[7]

Rather than forming an objective system of ‘concrete and normative’ and therefore ‘valid’ and ‘binding’ rules, as many lawyers claim them to be, Koskenniemi observed that international legal rules were, in fact, highly malleable.

From a different vantage point, in her chapter in our book, Barbara Oomen argues that realising human rights at the municipal level holds tremendous potential for fostering a culture of constitutionalism. Oomen suggests that Koskenniemi’s distinction between talking either ‘rabbitese’ or ‘duckalese’, respectively the language of politics or that of the law, might not be that simple in local practice.

This book as a whole shows in various ways how legal vocabularies have framed the possibilities for mobilising international law for global justice. In addition to showing how this legal mobilisation can potentially hold states, corporations or individuals accountable for violations of international law, numerous inconsistencies within the global liberal legal order are revealed.

References
[1] David Barnhizer, Effective Strategies for Protecting Human Rights (Aldershot: Ashgate, 2001) and Christopher Lamont, International Criminal Justice and the Politics of Non-Compliance (Aldershot: Ashgate, 2010).
[2] Naomi Mezey, ‘Law as Culture’ (2001) 13 Yale Law Journal, 35-67 at 35.
[3] Martti Koskennimi ‘The politics of international law – 20 years later’ (2009) 20(1) European Journal of International Law, 7-19: at p. 9.
[4] Ibid., p. 12.
[5] Koskenniemi (2011), at p. 133.
[6] Ibid., p. 9.
[7] Ibid.

This blogpost is an adaptation of the introduction to our edited book Mobilising International Law for ‘Global Justice’ (2019, Cambridge University Press, https://doi.org/10.1017/9781108586665), that is first launched at the International Institute of Social Studies on 30 November 2018.

About the authors:

JeffHandmakerISS_small

 

Jeff Handmaker is Senior Lecturer in Law, Human Rights and Development and csm_4fe244a1a72e59e9c42dc150abedd9c6-karin-arts_78559ee7d1 Karin Arts is Professor of International Law and Development, both at the ISS.