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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

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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:

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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.