Judicial Agency and Spatial Practices: A Geo-Political Analysis of New Configurations of Power

Judicial Agency and Spatial Practices

A Geo-Political Analysis of New Configurations of Power

Marinella Marmo


Legal spatiality has been often discussed in terms of legal interpretation and special location. In fact, it is an axiomatic point of criminal law that location dictates legal intervention (Raustiala 2005). International criminal law and humanitarian law have offered the legal community the occasion to revisit the principle of locality and the boundary of state sovereignty. This is often seen as a way to allow jurisdiction over criminal matters that have repercussions broader than what domestic criminal law would usually cover. The resolutions of these matters are often described as being important for the whole of humanity, hence the revisiting of the concept of territoriality and criminal law. In particular, this exceptional way to look at fundamental human rights has allowed the legal-political imposition of jurisdiction over certain individuals (Roesler 2007; Woods and Hilbink 2009). The most recent example of this is represented by the International Criminal Court (ICC), the jurisdiction of which reaches individuals who are far away from the location of the court, in The Hague (ICC 1998; Laughland 2009). While there has been some discussion over the legality of the jurisdiction of the ICC, less attention has been placed on the fact that legal spatiality also has a very geo-physical connotation, the space occupied in a given territory: yet another supranational court has been located in what we can refer to as supranational judicial hub Western Europe. Accounts and critique of judicial activism of the ICC court have largely ignored the fact that the location of the ICC is a factor that contributes to judicial empowerment. Judicial activism does not occur in a vacuum, and all elements should be considered in a comprehensive legal-political analysis of new congregations of power. Claiming jurisdiction on those matters where little or no competence was assigned to the ICC by the Rome Statute and confining the discussion to legal matters may preclude from appreciating the enormous influential power European courts (Alter 2011a) and, in general, the European legal environment have.

This chapter proposes to investigate the territoriality of supranational courts as a sovereign territory of judicial shelter. From the microcosm of the ICC to the macrocosm of supranational courts in the judicial triangle formed by The Hague, Luxemburg and Strasbourg, we can map out the formation of a new agent, the ICC, with an already well-developed and well-established agency of supranational judicial authority. Here, the international judge is selected by and trained to be a peer in an environment conducive to strict direct and indirect peer review. Practices of the ICC are strengthened in an environment that is intrinsically and extrinsically encouraging the reinforcement of a western judicial mission. Space shifts from its physicality to a mental and temporal place where the judge discusses and delivers international justice barricaded behind a safety net(work).

Such an environment would maximise the power of the ICC via the support of wider judicial community while gathering its own strengths. Inevitably, to become fully operative and independent from intrusive and powerful nation-states, the court must operate in a scenario of expertise capture. The supportive judicial environment that geo-politically surrounds the ICC therefore may be potentially positive. The court may offer, in time, an alternative to other power configurations such as governments and transnational corporations that are adamant to produce an explanation of exploitative events to fit their agenda.

However, in order to achieve a stronger positioning on a global geo-political map, the court will need to gather power via a euro-centrist legal approach. This chapter offers a critique of how this process of power gathering is taking place in a way to suggest a complementary view to a mere explanation based on judicial pro-activism.

The Construction of The ICC Judicial Composition and Geo-Political Power

In this first section, attention is given to the ICC bench composition and how judges of the ICC are selected. The scope is twofold. First, it aims to address that the construction of impartiality for the delivery of universal justice cannot hide the fact that the Court is a European creation. Second, judicial peer review schemes, framed as a way to limit executive influence, are furthering an already winning agenda of westernising a judicial mission of universal justice.

Composition of the International Criminal Court

Based on the current composition of the International Criminal Court, there are eighteen ICC judges. In an open effort to have a balanced representation of ratifying states on the court bench, according to the official narrative suggested by the ICC website (ICC 2012), the number of judges sitting on the International Criminal Court should be directly linked to how many member states are represented per geographical area (see also Mackenzie et al. 2010). The 122 countries that have ratified the Rome Statute have been grouped into five geographical clusters. Out of these 122 states, 25 Western European and other states (WEOG) are present, there are 33 African states total, 27 Latin American and Caribbean states, and 18 Asia-Pacific states and Eastern European states, each.

Currently, the WEOG group has the majority of judges (7), followed by Latin American and Caribbean states (6), and African states (5). Asian states and Eastern European states have an equal number of judges (3). It is evident from this data that the WEOG is the third largest group after the African states and the Latin American and Caribbean states. Yet, the WEOG is the most represented on the bench. This unbalanced proportional representation would be even more evident if it was linked to population of the different regional areas.1

This is clearly an occurrence dictated by wider political-economic implications. The WEOG, inclusive of states such as Australia and New Zealand, represents the most industrialised and rich economies, with a well-developed financial network and socio-political connections. It is hard to imagine that further consequences of these well-established networks— such as existing legal-judicial connections, legal practices, and dominant interpretation of the concept of universal justice and human rights—are not used as points of reference. This itself could be an element to start reconsidering claims of universality put forward repetitively by the Court (see Chapter 1 of this volume).

And yet, the Court constantly strives to be seen as representing an ideal of justice shared by any legal practitioner in any corner of the world. For instance, and since the direction and representation of the court is mainly embodied by the office of Presidency, it is significant to highlight that the current and second-ever president of the court, Sang-hyun Song, is from South Korea. Sang-hyun Song took over the presidency in 2009 after the first president of the ICC, Canadian Philippe Kirsch, stepped down. South Korea is part of the group of Asia-Pacific states that comprises eighteen states and three judges in total, which means that there is one judge for every six countries. The First Vice-President, Sanji Mmasenono Monageng, is from Botswana, one of the 33 African states, which therefore have five judges in total, meaning one judge every 6.6 countries. The Second Vice-President, Cuno Tarfusser, is from Italy, as part of the group of WEOG, which produces the result of one judge for every 3.5 countries (ICC 2012).

This reshuffle of the office of the presidency could be, in a more optimistic view, an indication that representation is gradually shifting to be more balanced, and an opportunity to raise a more comprehensive judicial policy of universal justice. The more unbiased the court is perceived, the stronger the argument in favour of a neutral umpire could be proposed. In more sceptical terms, this could also be seen as a disguised attempt to offer tokenistic power to under-represented countries. And even if we accept the argument that judges should be representing justice (expertise capture) and not state interest (agency capture), this should offer us a point to reflect over how the power-gathering process is occurring, since under-represented judges may feel they have to show competency via adaptability. These judges have to be seen as equal in their peer group, which translates into mirroring the more dominant group’s attributes, legal language, ideals, and aims (Guarnieri 2004).

Selection of Judges

An argument of formal and informal peer review as a form of social control is confirmed when considering recent changes in the selection process of potential candidates to the ICC. For the first few appointment rounds, the decision making process of selection has been externalised to the governing body of the court, the Assembly of State Parties. In what follows, a shift for gaining more judicial control over such elections is proposed as further evidence of peer pressure over potential candidates and consequent influence over a mainstream narrative of universal justice.

The eighteen ICC judges, elected every nine years, are selected based on their national affiliation to the Rome Statute member states (United Nations 1998: art. 36), with the restriction that no more than one nationality can be represented during the same term. Since 2003, six election rounds have taken place: four ordinary elections and two special elections to replace judges who either resigned or died.

Further to the required fluency in either French or English, the official languages of the ICC, prospective judicial appointees need to have national qualifications to be potentially appointed in the highest judicial offices of their own countries. This, at supranational courts, usually means that not only judges but also other people with specialised expertise in criminal law and international law (or equivalent) can be appointed (United Nations 1998: arts. 36.3. b.i–ii). The names of potential judges are drawn from two lists that encapsulate the criteria expressed above, with List A being the judges with criminal law and proceedings experience, and List B being experts in international law and similar fields. This approach may allow ICC judges to represent a variety of expertise and fill the gap of territorially based knowledge in domestic criminal law. As per 2012, out of the eighteen judges, seven have been drawn from List B (ICC 2012), suggesting that a preference is given to minimise the selection of judges from the B pool.

Complaints regarding nomination of judges by state parties have clouded the election system. In particular, it has been highlighted that some candidates have been state-sponsored based on national interests rather expertise and skills as per the regulation imposed by the Rome Statute ex Article 36:

Past experience demonstrates that States Parties to the Rome Statute may not have paid sufficient attention to the requirements established by Article 36 when they have put forward candidates for judges. (CICC 2010: 2)

Based on this criticism (see Mackenzie and Sands 2006; Mackenzie et al. 2010), and in order to approach the task in a more objective manner, since December 2010 potential ICC judges have been pre-selected by the Independent Panel on International Criminal Court Judicial Elections. Even if the Panel’s recommendations are not binding, it is clear that the Panel has been established, upon insistence of the Coalition for the International Criminal Court (CICC), to mirror a national system of recommendation of suitable and qualified judges, and render the eligibility of ICC judges less of a diplomatic exercise of alliances and compromises. While it is early stages to comment on whether these aims are achieved or not, it is notable that the effort to guarantee the impartiality of the ICC court composition resulted in an acquisition of incremental powers to the Panel. The Panel is comprised of five people, all of them former international judges or prosecutors and, in theory, each representing those five geographical regions, apart from WEOG, which is represented by two panellists, and no panel-lists from Eastern European states.2

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