The Rationale of International Criminal Justice: Idealpolitik, Realpolitik and the International Criminal Court

The Rationale of International Criminal Justice

Idealpolitik, Realpolitik and the International Criminal Court

Nerida Chazal


The International Criminal Court (ICC), as with the wider project of international criminal justice, has been justified by the lofty ideals of ending impunity for human rights abusers, achieving peace, and establishing and enforcing a normative framework for an increasingly globalised world (United Nations 1999). Narratives of “never again” and the “collectivity of mankind” fuel the ICC, which is driven by human rights, moral principles, and natural laws that are considered self-evident and universal. However, as the introduction to this collection highlights, “international society” is a contested space in which different values, ideologies, and material interests create contradictions and tensions between the many actors that constitute it, making the claim of universality questionable. Additionally, the highly idealistic aspirations of the ICC are difficult to achieve considering the practical limitations associated with the Court, including the Court’s reliance on state support, its wide jurisdiction and involvement in numerous on-going conflicts, its limited funding and resources, and its necessarily selective prosecutions.

The International Criminal Court thus often fails to achieve the ambitious goals it espouses, creating a series of gaps between rhetoric and reality which have been described as “expectation gaps” (Gibb 2010) and “impunity gaps” (Human Rights Watch 2011b). Although they are laudable and often well intentioned, the lofty ideals of the ICC are also weakened by the simultaneous operation of realpolitik, that is, the furthering of the strategic interests of powerful states (Ruldolph 2001). Realpolitik interactions shape the space between the ICC’s idealistic goals and its practical functioning as different groups engage with the ICC’s broad aims while using the Court to further their own strategic interests. The ICC is therefore defined by tensions and intersections between idealpolitik and realpolitik, constructing it as a tool that can be moulded to suit the interests of many actors.

This chapter explores the polarised constructs of idealpolitik and realpolitik to illustrate how the inspirational aims of the ICC are translated into contradictory practices as the Court is used as a tool in political struggles. The chapter begins by undertaking a conceptual analysis of the narratives and rationales that underpin the ICC. Exploring idealistic discourses from the Rome Statute Preamble and celebratory speeches, this section illustrates how idealism is used to justify and bolster the ICC. The section highlights the contradictions that arise from the conflicting foundations of the Court which represent both human rights assumptions and criminal justice frameworks. The fusion of these paradigms results in the perpetuation of and reliance on vague aims and axiomatic ideals that are difficult to achieve, and create an opening for the Court to be used to further realpolitik interests.

The chapter interrogates the assumption that the ICC is neutral and apolitical by exploring the case study of Uganda, a situation in which the ICC has been mobilised to further both the idealpolitik and realpolitik of different groups contemporaneously. The Ugandan government has used the ICC as a tool to enhance its power and legitimate its rule in Uganda, while also benefiting from increased prominence at an international level (Nouwen and Werner 2011). Meanwhile, the ICC has seized the opportunity to act in Uganda to incrementally develop its prominence and power and to further its idealpolitik of ending impunity and enforcing human rights principles. This discussion illustrates that both idealpolitik and realpolitik transform the ICC and international criminal justice into just one tool among many in a complex international environment (Simpson 2008).

The Idealistic Foundations of the ICC

The International Criminal Court is defined by many complexities and contradictions as its functioning and practices are incongruous with its idealistic rhetoric. One way to understand this gap is to examine the underlying assumptions that determine the ICC’s foundations. The ICC, as with the wider project of international criminal justice, was created by the merging of the two separate fields of human rights and criminal law (Robinson 2008).1 These broad structures shape actions at the individual level, which is explored in Part II of this book, to facilitate the reproduction of the dominant values and ideologies that define the contours of the fields.

The field of human rights is based on a victim-oriented focus (Kennedy 2004; Schabas 2006), a desire to affect broad political change, and a goal of developing idealistic standards that have moral resonance (Nussbaum 1997) and form a normative framework for international society (Kinley 2009; Mutua 1996). By their very nature, human rights are idealistic and ambitious; they are aspirations rather than guarantees, or, as Donnelly (2003: 12) frames them, “demands for change.”

Human rights have significantly influenced the development of the ICC with many human rights groups involved in the formation of the Court and the construction of the ICC as an enforcement mechanism for existing human rights standards (Glasius 2006; Teitel 2002). The influence of human rights on the ICC is apparent in the idealistic aims of the Court, the victim-oriented discourse that defines these aims, and the call for sweeping changes through the enforcement of a normative framework.

The field of human rights seeks to overcome the barriers of sovereignty to achieve equal rights for all and a normative standard across the world by viewing humanity as a whole. Collective narratives of humanity as a discrete entity are prevalent in discourses surrounding the Court. For example, the opening phrases of the Rome Statute Preamble state:

Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time;

Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity (ICC 1998, p. 1)

This conveys the notion of humanity as collective through references to “common bonds,” “cultures pieced together in shared heritage,” a “delicate mosaic,” and, more specifically, the “conscience of humanity.” The reference to the “conscience of humanity” positions humanity as a central victim of international crimes, thus evoking the idea that atrocities threaten humanity as a whole.

The human rights–based focus on collectivity provides the impetus for the International Criminal Court and constructs the ICC as a standard setter and enforcer of human rights norms. Viewed through this lens, the ICC has a persuasive function to establish and codify standards and offer a mechanism to encourage states to adopt collective norms and prosecute international crimes. This conceptualisation of the Court is closely linked to the human rights focus on victims (Robinson 2008). In this capacity, the Court plays a wide role in “achieving justice for all” (UN 1999) and purports retributive (Schabas 2006) and didactic (Henham 2005) aims which are underpinned by a focus on victims (Keller 2007; McCarthy 2009).

The field of criminal law, or the “juridical field,” is equally influential in the development of the ICC and dictates the structure, functioning, and processes of the Court. In contrast to the human rights focus on victims and the desire to affect the development of a normative framework, criminal law is focused on judicial processes whereby individual actors are prosecuted and punished for proscribed crimes (Ainley 2011). Criminal law adds a practical element to idealistic human rights assumptions. Charles-worth’s (2002) discussion of the evolution of international law through responses to emergent crises is instructive here. Charlesworth explains how international law’s ad-hoc development, as urgent conflicts evolve, results in a focus on practical and procedural considerations, and an unexamined acceptance of idealistic and often unsuitable aims. As a result, international law adopts pragmatic paradigms with idealistic aims grounded in human rights assumptions, providing the justification for international criminal justice processes. The merging of the fields of human rights and international law thus produces highly idealistic aims that are reinforced through the practical constructions of international criminal justice associated with international law. Through these narratives the International Criminal Court is constructed as an apolitical institution that can govern international society with law, rather than war, by forcing “political actors to adjust to the new legal limits” (Moreno-Ocampo 2010).

International criminal law thus brings a practical, process-oriented focus to human rights law. The coupling of human rights norms with the framework of criminal justice invokes punishment as a preventative mechanism that reinforces the legitimacy of human rights standards (Bassiouni 1982). Schabas (2006: 424) explains this link between international criminal law and human rights, stating: “[i]t is now well understood that the protection of such core human rights as the right to life and to dignity … imposes positive obligations upon states. Not only must they refrain from such practices in a direct sense, they must also ensure that individuals who perpetrate such atrocities are brought to justice.” As Schabas’ commentary highlights, international criminal justice is founded on the fusion of human rights and liberal notions of criminal justice, whereby criminal justice provides a preventative, enforcement mechanism for human rights standards.

The concept that criminal law and justice can bring an end to human rights abuses and mass atrocities is embodied in narratives of “never again” which stemmed from the development of the Nuremberg Tribunals following World War II. The narrative of “never again” uses references to the past to demonstrate the need for action through the criminal justice paradigm. Discourses of never again featured heavily in negotiations around the creation of the Rome Statute. For example at the opening of the Rome Conference, Kofi Annan stated:

Many thought … that the horrors of the Second World War—the camps, the cruelty, the exterminations, the Holocaust—could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time—this decade even—has shown us that man’s capacity for evil knows no limits. (quoted in UN 1999: np)

Annan declared that the message from the international community in negotiating an ICC was clear:

Never again would it stand aside and let the fabric of humanity be torn asunder by those who commit genocide, crimes against humanity, war crimes and the crime of aggression. (quoted in UNIS 2002: np)

The idea of never again continues to infuse the rhetoric of the Court today. At the Review Conference of the ICC in Kampala in 2010, the Chief Prosecutor of the ICC, Luis Moreno-Ocampo, stated:

The Rome Statute … transformed the words ‘never again’ from a moral promise to the victims, into a legal duty … Never again will victims of atrocities be ignored. This is the time of action, to show how the law is implemented. (2010: 2)

As Moreno-Ocampo quotation highlights, there is a close link between the rhetoric of never again and calls for action, particularly legal action, in response to emerging atrocities. The repetition of never again provides a primary rationale for the ICC and its prosecution of international crimes through the articulation of harm and human rights principles in the juridical field.

These narratives construct the Court as a preventative body that exists to end impunity through the criminal prosecution of individual actors for human rights abuses. The concept of ending impunity is prevalent in discourses surrounding the ICC; for example the Rome Statute Preamble states:

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes. ICC 1998, p. 1)

At the Rome Conference numerous participants asserted ending impunity and preventing international crimes as the primary rationales for the Court. Mary Robinson, UN High Commissioner for Human Rights stated:

When I am asked what an International Criminal Court would do, I have a very simple answer. It would fight impunity. I can think of no greater contribution to the promotion or protection of fundamental human rights. (1998: np)

Similarly, William Pace, President of the NGO Coalition for an ICC (the CICC) claimed:

If we succeed (in establishing an ICC) it means the establishment of a court which will prevent the slaughter, rape, murder of millions of people during the next century. (UN 1998: np)

Such aspirational statements continue to infuse discourse surrounding the Court. The Office of the Prosecutor states that the aim of the Court is:

To help end impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, and thus to contribute to the prevention of such crimes. (ICC 2009: 1)

These quotations illustrate the merging of the victim-oriented, human rights framework with the preventative power of criminal law processes and justice discourses.

The fusion of these fields explains the idealistic narratives that justify the judicial processes of the ICC, yet also results in a series of conflicting assumptions about justice (Robinson 2008). The strong influence of human rights assumptions sees international criminal law departing from the core principles of liberal criminal justice. For example the principle of personal culpability is undermined by the development of joint criminal enterprise and the collective nature of human rights (Robinson 2008). The victim-oriented basis of human rights also skews the focus of the ICC and contradicts the principles of equality that underpin liberal notions of criminal justice, placing victims’ rights above the rights of the defence (Robinson 2008). These conflicting narratives are indicative of the dual rationales that drive the ICC and characterise the Court as preventative and persuasive institution that seeks to achieve many vague and idealistic aims.

Polarised Discourses of Idealpolitik and Realpolitik

The vague aims and lofty ideals that define the ICC leave much space for actors to reinterpret the role of the Court and to use the ICC to further their realpolitik interests. The heavy reliance on idealpolitik also creates polarised discourses between those who support the Court and those who do not. The ICC is constructed by both idealpolitik and realpolitik. Some of these groups use idealpolitik to support the Court and align their identities and interests with the ICC, while others are driven by realpolitik and construct their interests and identities through their negative interactions with the Court in order to reinforce power structures and political interests.

Idealpolitik and realpolitik are both dominated by ideas and these ideas shape the nature of the international environment and the Court’s role within it. Idealpolitik refers to circumstances where “behaviour is dictated by ‘principles of legitimacy’ and conditions where normative principles are privileged over simple power politics” (Atkinson 2011: 43). The ideas that underpin idealpolitik are predominately normative or ideal-based, as was explored in the previous section.

Realpolitik is equally constituted by ideas; however, these ideas focus on power politics and strategic political interests (Rudolph 2001). Atkinson (2011: 43) further explains the difference between idealpolitik and realpolitik: “[w]hile a coalition operating under an assumption of realpolitik approaches negotiations with a disinterested rationality … a coalition influenced by idealpolitik evaluates proposals through a normative lens that asks whether justice or other ideological variables are satisfied.” As this highlights, both idealpolitik and realpolitik are constituted by ideas; it is the premise of the ideas as based on normative and ideational frameworks or political strategies and power politics that differentiates the two. Idealpolitik can, therefore, be defined as the mobilisation of normative ideals, and realpolitik as the mobilisation of instrumental ideals and practical interests.

A key example of the use of idealpolitik in the construction of the Court is the international nongovernmental organisations that support the work of the Court and use ideals based on human rights to construct the Court as a positive institution that can end impunity, achieve peace, and bring justice to victims. The Coalition for the International Criminal Court (CICC) is an organisation that represents 2,500 civil society organisations in 150 different countries and illustrates the unification of diverse groups through the construction of common ideas and principles. The CICC typifies the strategy of using ideas to form groups and gain greater influence in the construction of the ICC and their own identities and interests.

The CICC works on the common principle of strengthening international cooperation with the ICC and aims to “ensure that the Court is fair, effective and independent; make justice both visible and universal; and advance stronger national laws that deliver justice to victims of war crimes, crimes against humanity and genocide” (CICC 2012). These broad aims unify an otherwise diverse group. For example, the Coalition consists of a large number of victims’ rights groups, but also represents groups who advocate for the rights of the defence. Through interactions with the ICC, the CICC constructs its own identities and interests, as well as those of its constituent groups and actors, and importantly, it constructs the identity and interests of the ICC. This illustrates the construction of the ICC through idealpolitik and the interactions around ideals and ideological principles.