Afterword: The Future of International Criminal Justice


The Future of International Criminal Justice

David Nelken


I would have liked to also say, “I have the honour of being part of the international community that you represent here,” but I cannot say that. How can I say this to you—representatives of the international community—when the international community has shown fear and a lack of courage during these 16 years in the Democratic Republic of the Congo? (Mukwege 2013)1

What questions are scholars asking about the growth and outcomes of international criminal justice? And what issues should they be discussing? As the opening quotation from Mukwege shows, there are increasing appeals to do something about atrocities in the world. But there are also fears that the way the international community responds to such calls may sometimes be part of the problem and not the solution. There have been crucially important changes in the development of international criminal law in changing contexts over the last century. How did we get to Nuremberg (Knepper 2009, 2011)? Where are we going now? What are the implications of the fact that, after World War II, legal procedures were aimed at what had been the strong states of Germany and Japan. Then, following the hiatus of the Cold War, and the ad hoc courts dealing with specific examples of genocides and mass human rights abuses, how have we ended up with the International Criminal Court (ICC) sitting in judgement on the behaviour of weak states in Africa and the actions of rebel movements within them?

The editors of this collection, Professor de Lint, Associate Professor Marmo, and Dr. Chazal see this book as having two aims: firstly, to contribute to existing debates about the legitimacy and effectiveness of international criminal courts, and, secondly, to place such analyses in the context of the consequences for social justice of the larger changes accompanying globalisation.2 In this afterword I therefore discuss some of the problems of legitimising and assessing the outcomes of the work of international criminal justice institutions. I then consider the book’s proposal to widen the intellectual resources we should use to assess these challenges of doing international justice.

Between Legitimacy and Effectiveness

International criminal justice operates “in a contested space in which different values, ideologies, and material interests create contradictions and tensions between the different actors that constitute it” (Chazal, in this volume). This book asks how the current architecture of international criminal justice is connected to its achievements, or lack of them. On the one hand, many commentators argue that international institutions of criminal justice have made enormous strides in terms of legitimacy. Where the international community was absent, it has now become a saviour. For most states accused of gross human rights abuses, impunity can no longer be taken for granted. Denial of denial is no longer an option.3 The jurisdiction of the International Criminal Court (ICC) is (or was) accepted even by the membership of the African Union, which includes the states who are most likely to find themselves before the court.4 On the other hand, as is brought out by the contributions to this collection, there are many ways that this legitimacy is and can be challenged, whether this be with respect to the selection of actors pursued for international crimes, the way that such prosecutions are carried out, or the alternative ways of preventing and responding to atrocities that are being neglected.

In the introduction, Willem de Lint highlights “the selectivity, politicisation, and perhaps even arbitrariness of the International Criminal Tribunals of Rwanda and the former Yugoslavia and International Criminal Court.” The ICC is conceded to be more legitimate. But its selections too are vitiated by the Security Council’s role in the referral of cases. Proceedings may be brought even against non-signatory countries by the members of council, and three out of five of these have themselves not accepted the jurisdiction of the court.

If some contributors see Africa as over-exposed to international justice, others (sometimes the same authors) argue that the United States and Israel are unfairly exempted. But it is all too easy for any given country to point to the actual or supposed abuses (present or past) by other countries—including those leading the condemnations. The role of the United States—acting as global policeman whilst refusing to be subject to the same laws it wants applied to others—is especially ambiguous.5 But there are of course many other examples of powerful countries with questionable current or past human rights records that were not brought before the court: England and France carry some blame for what happened in Rwanda; China maintains support for a government accused of committing genocide in Sudan; and Russia has a history of brutal intervention in Chechnya and is reluctant to jettison President Assad in Syria as its ally. Allegedly, humanitarian interventions too often get mixed up with foreign policy preferences where “my enemy’s enemy becomes my friend.” Were the sanctions used against President Saddam’s Iraq examples of a successful response to mass atrocities, or were they crimes in their own right? Should the United States be blamed for the thousands of deaths that resulted from the later ethnic and community strife in Iraq? Is it permissible to use force to install democracy as a means to realise human rights (Madsen 2013).6

Another line of critique has to do with who is being targeted and the types of harms that are being overlooked. Given the way corporations are taking on tasks that were previously the responsibility of states, it often may not be the state that needs to be singled out. Increasingly, armed conflict (again) involves the use of mercenaries. Beyond this, many contributors wonder why the misdeeds of international financial institutions,7 or multinational companies that are guilty of so-called “crimes of globalisation” (Friedrichs and Friedrichs 2002; Karstedt and Nelken 2013), such as the destruction of local ways of life and possibilities of economic survival, should be treated differently from those of nation states (Rothe and Friedrichs, in this volume). International bodies impose neo-liberal recipes and financial straightjackets as the price for loans and assistance (Klein 2008) and social inequality and environmental destruction are seen as being permitted and even furthered by the same agencies who act in favour of international human rights. Khoury and Whyte (in this volume) tell us that “[T]he weak prospects for truly hegemonic struggles to emerge at the global level also weaken the prospects for a truly ‘global’ counter-hegemony. Yet this problem does not feature in a literature that remains overly-optimistic about the ability of fragmented forms of ‘global’ resistance to offer a real challenge to power.”8

These criticisms beg the question about where to draw the line so as not to saddle international institutions with unrealistic expectations—which would be the sure way to undermine their legitimacy. Can they really be expected to pursue as crimes actions involving “unintended consequences” (even if these are not unpredictable consequences), for example where loans are provided on the basis of neo-liberal economic ideology which thereby adversely affect life chances or the quality of the environment? Other contributors would in fact draw the line much more restrictively. Even in dealing with deliberate mass atrocities, they see international criminal justice as going too far in infringing on states’ rights and transferring sovereign powers to a non-elected governmental body (see Laughland, in this volume). Scholars of the so-called “Realist” school of International relations continue to emphasise how, in practice, state interests set limits to the pretensions of international justice (Vinjamuri and Snyder 2004). Thus the same leading states that are willing to support rebel groups in Lebanon and Syria are determined to attack other groups in Somalia or Mali.

As stated in the introduction, however, the apparently competing claims that international courts go too far—and that they do not go far enough—can actually overlap in the accusation that the wrong people are being targeted. Willem de Lint warns that there is “a real danger that a court instituting universality will impose a ‘victor’s justice’ in a socio-cultural variation of the colonial practices of dominant or elite interests.” International criminal justice at worst, therefore “can be no more than a device of discipline used to assert the ordering principle and hegemony of liberal capitalism enforced through post-Chicago discipline and a long war against opponents that are renamed terrorists.”

The legitimacy of international courts also depends to a very large extent on the selection and the behaviour of the judges, prosecutors, and lawyers who work in them.9 As far as judges are concerned there are complaints regarding the procedures of nomination by state parties and accusations of tokenism in terms of which countries are represented. When it comes to specific sentences there can be sharp disagreements between judges with reciprocal accusations of political bias. At the same time, research also suggests that judges in international courts often manage, to a surprising extent, to create their own new legal culture and cultivate a sense of institutional allegiance independent of their country of origin (Marmo, in this volume; Arnold 2007; Nelken 2009). Stenning (in this volume), suggests that achieving “independence” for the international prosecutor is perhaps more difficult. The ICC prosecutor, he tells us, sits at a critical juncture of the Court, “where the pressures of law and politics converge” and has to engage in sensitive and difficult political negotiations just to get his or her decisions successfully implemented.

Because the ICC prosecutor has no law enforcement resources at his disposal, he is obliged to rely on persuasion, public appeals, and shaming to get his cases to court. Even pre-trial public statements that set out to stigmatise given political leaders may sometimes be necessary (and justifiable?). Discretion has to be exercised about which cases are pursued; the official rationale is that priority should be given to those cases involving the most deaths and focus on the offenders with greatest responsibility. The problem can easily arise of whether it is acceptable to suspend prosecutions for political reasons so as not to jeopardise peace negotiations (this finds a parallel in domestic justice when white collar crime offenders are allowed to make economic settlement rather than go to prison). There are also often special features to be born in mind when it comes to the relationship between the accused and defence lawyers. The accused may not trust court-appointed lawyers and prefer to defend themselves; in some cases the accused may even be less concerned with achieving an acquittal and more with sending messages to the group with which they identify. Paradoxically, sometimes their goal (as for victims) is to get their version of the conflict on record.

The difficulties facing international courts raise the question of how far international criminal justice should develop as a special form of law with its own rules different from those of domestic justice. Perhaps the differences in the behaviour being dealt with could justify different criminal procedures and principles? Some are critical of this trend and have criticised what they call “the slide” between public international law and criminal law. Robinson (2008) bemoans the influence of interpretive approaches from human rights and humanitarian law, such as victim-focused teleological reasoning, or the assumption that criminal norms must be co-extensive with similar norms in human rights or humanitarian law, overlooking the different structure and consequences of these areas of law.

One worry is that, “the principle of personal culpability is undermined by the development of joint criminal enterprise” and the misapplication of domestic principles in international contexts by which “the victim-oriented focus of human rights skews the focus of the international criminal justice and contradicts the principles of equality that underpin liberal notions of criminal justice … placing victims’ rights above the rights of defence” (Robinson 2008 ). But some contributors are convinced that this type of justice is sui generis, “with the international criminal justice system the fundamentals of the relationship between enforcer; offender; victim and the general community are very different” (Niemann, in this volume). One leading scholar of transitional justice has argued that “collective punishment” is essential to the deterrent effect of international criminal justice (Drumbl 2007).10

Many other issues remain controversial. Is a special insistence on the rights of the accused justified by the seriousness of the charges even if (as increasingly happens) this creates difficulty in conviction? Court processes that exercise justice in the name of victim groups may not be geared to actually serving their needs or reflecting their desires (Findlay 2008). We also need to bear in mind the difference between a strategy that is best suited to protecting potential victims and one concerned about justice for victims—including retrospective vindication for those who are no longer alive. Can the same type of process be used where the state is the offender and where the state is being offended against? Would international criminal justice look the same when used as part of a process of sanctioning the nation-state for its treatment of a minority and when employed to reinforce the state in the face of rebel groups who seek to exacerbate tribal, ethnic, religious, minority, or other cleavages? What if abuses have to do with the way states proceed against terrorist and other threats—even involving state terrorism itself (Agamben 2005; Chambliss et al. 2013); Rothe and Mullins 2011)? If, as proposed, “human security” rather than “state security” is to be our goal, how is international criminal law to be (re)framed?

Criminal justice at the local level is said to be increasingly in the shadow of the ICC. But there are many challenges on the ground in working out a principle of complementarity in any effort to divide responsibility for prosecution between international and national courts, or to develop hybrid international courts, such as that in Cambodia.11 Local alternatives offered by national or community processes have their own drawbacks, as shown by the debate over community “gacaca” courts in Rwanda. At the national and local level there is usually a lack of basic resources (whether in terms of policing, courts, or capacity in the execution of sentences) for bringing about international justice. In his continuing efforts to study peacekeeping Braithwaite argues that impunity can best be overcome by building on surviving community justice institutions (see Braithwaite 2010).

In his work with Wardak on the Jirga and Shura courts in Afghanistan, Braithwaite even urges us to accept the less than ideal respect from human rights that characterises the procedures of some local institutions (although he also recommends that we also try to monitor these). On the basis of survey evidence of local people in Afghanistan, it is claimed that the difficulties in achieving peace there could even be seen as a battle over which criminal justice institutions they are willing to trust. The national-level courts, modelled on Western lines, are not those most respected and fear of the police and distrust of national authorities is almost at the same level as fear of the Taliban (Braithwaite and Wardak 2013; Wardak and Braithwaite 2013).

If we are to make progress in grasping the problems of legitimacy faced by this form of justice we need, above all, to ask what it is trying to achieve, and how it fits into larger projects. According to de Lint there is a “relative paucity or absence of sophisticated penological thinking in the terrain of the international.” In his contribution to this book, Niemann likewise tells us that “A coherent generally accepted set of sentencing principles has yet to emerge with respect to the sentencing of the international offender.” For whom is legitimacy most important—the victims, the international community, or even perhaps the perpetrators? What makes the decisions of international courts “effective” and how are we to judge, and—as important—who is to judge? When and why does it matter what people on the ground think about the decisions of these courts (Parmentier and Weitekamp 2007)? Should the needs for practical help of the victims of atrocities be considered the paramount consideration?

How should we best apply the traditional justifications of punishment that are appropriate at the domestic level? Willem de Lint tells us in the introduction to this volume that “international criminal justice institutions have transplanted fundamental concepts of crime and justice, such as philosophies of justice, rationales for punishment, and theories of crime control, from a domestic level to an international level without adequate consideration of the unique conceptual and structural issues associated with international society specific deterrence and retribution become paramount.” In his view “the adoption of domestic conceptions of justice is problematic as the international environment is vastly different to the structure and landscape of the nation state.” There are a variety of goals where domestic and international justice may overlap, including restitution, reparation (Office of UN High Commissioner for Human Rights 2005), prevention, and corrective justice more generally. But some of the goals of international justice are clearly different. These range from producing political transformation and regime change, including the need to signal “a rite of passage” (Teitel 2000), or encouraging forgiveness between communities. On the other hand, as the editors highlight, it is rare to hear of the aim of rehabilitating an international criminal or warlord despite the prominence of restorative and transitional justice paradigms. Retribution remains the most obvious goal, given the magnitude of the horrors with which international criminal justice has to deal. But is it right that it should be dominated by this goal? The trials of German and Japanese war criminals were justified after World War II on the basis that it was a way of avoiding the revenge that the victors might otherwise have exacted if it had not been canalised by law.12 But convictions are so rare, and so arbitrary (depending also on whether and what alternatives are agreed to by the parties), so that they are often not seen as just. In addition, sentences in an international court where the death penalty is not available are less than those given for murder (or even lesser crimes) in some national courts. Turning a blind eye to the local use of the death penalty after the overthrow of regimes guilty of atrocities, as in Iraq and Libya, raises further inconsistencies.

Doubts have also been raised about the efficacy of deterrence, the other major goal of punishment. Again the problem is the likelihood of conviction. “When offenders do not perceive a punishment as likely to be imposed, then there will be little disincentive toward offending, no matter the celerity or the proportionality of the punishment in question” (Rothe, in this volume). Willem de Lint tells us that “less than 1 per cent of perpetrators are brought to justice,” and that “as few as 382 suspects have been prosecuted by international criminal courts and tribunals and 281 have been convicted” and that the work of the international courts has not stopped “suicide bombers from committing atrocities, illegal activities by guerrilla members in Colombia, the Lord’s Resistance Army’s systematic attacks against civilians or the use of child soldiers, the United States’ acts of aggression against Iraq, or Israel’s continued use of targeted assassinations and illegal occupation.”

It could be argued that this shows no more than the inability of criminal law in general to end crimes. Or does the need to respond to the cry of “never again” mean that this type of justice must be measured by more stringent criteria? Questions are also raised about whether these are the kind of criminals who can be deterred. As compared with ordinary delinquents, leaders of insurgency groups may well feel they have more to lose politically and economically by ceasing the criminal activity and perpetrators of international crimes are usually driven by obedience rather than by deviance and thus the international criminal justice system seems to have little deterrent effect.13

Can we be more sanguine about the larger goals of international criminal justice that have to do with contributing to building accountability and shaping international politics in general and the de-legitimisation of human rights abuses? For many scholars these kinds of trials are the best response to Hitler’s boast “who now remembers Armenia?” (Savelsberg 2010). But it is another question whether they can successfully achieve all the record keeping functions they are asked to perform, given the constraints in the gathering and presentation of evidence which limits who is charged and what victims are able, asked, or allowed to tell. Historical and legal reconstruction of responsibility may overlap, but they are not the same.14

The existence of so many different goals makes it extraordinarily difficult to decide on what is meant by the “success” of international criminal justice. There is a well-established contradiction between peace-making and administering retributive justice. But there are also lesser debated tensions such as that between implementing reparation and encouraging forgiveness. Local media sources in the countries of the former Yugoslavia tend to report those court decisions that go against their own fellow countrymen as politicised ones—this is especially true for the Serbians because of what they see as the disproportionate numbers of Serbs condemned by the ICTY. Convictions for these serious crimes are always tricky because of the difference between knowing what will be done as compared with giving (written) orders to do it. There may even be suspicions that discretion is used to shield from potential prosecution the foreign forces involved in seeking to end a given war. Even where convictions are overturned on appeal this may be taken less as a sign of the neutrality of the court and more as a vindication of the belief that the accused should never have been charged in the first place. All this has obvious implications for any effort to justify the work of the court in terms of its contribution to pacification between previously conflicting groups and the creation of a shared narrative.

To be able to measure success we need to know about the consequences of our interventions, including the unexpected ones. And, as with the goal of extending human rights, we cannot assume that all outcomes are automatically positive.15

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