Random Comments on the Mali Self-Referral to the ICC

As anybody following ICC activity most likely knows, Mali has referred its own situation to the ICC, as indicated by the OTP in a press release. I was not planning to particularly comment on this event, but after reading the excellent analysis from fellow bloggers Kevin John Heller, Mark Kersten and William Schabas, which I share to a large extent, I had a few thoughts of my own, as a reaction.

  • Another African Case
All three comment on the fact that this might not be a good idea to open yet another investigation in Africa, given the criticism that the Court has received in the past for this African trope. Certainly, there are countries in the world outside of the African continent which would have been deserving of an investigation. But generally, I still think, as I said two years ago (see here and here) that this criticism is widely exaggerated. 
First of all, it is difficult to “map” a coherent public opinion on this issue, whether from Africa or internationally. Some African leaders might make some noise occasionally, using the ICC as one among many tools to blame the West for everything that goes wrong in Africa, but then I hear victims’ groups asking for MORE investigations in African countries. In addition, Mark is right to point out that the AU “opposition” to the ICC is not as wholesale as sometimes presented. What the AU often criticises (and rightly so in my opinion), is the clear disregard for basic principles of international law, such as head of State immunity, that flows from UNSC referrals, not necessarily ICC activity in general. 
Second of all, overall, the fact remains there are not that many situations around the globe where the systematicity and gravity of the violence reaches the levels that takes place in the DRC, Uganda or CAR. Sri Lanka springs to mind spontaneously, probably Colombia might deserve less complacency, and Syria has obviously reached the level where if Libya deserves a UNSC Referral, it certainly does to. But generally, if you had to rank the worst crimes being committed around the world, it would be disingenuine not to recognize that African situations have ranked quite high up. 
Finally, there might be two Security Council referrals in Africa, but as recalled by William Schabas, there were three self-referrals (DRC, Uganda and CAR). In addition, if the Ivory Coast situation is technically a proprio motu investigation, the 12(3) declaration by the State (which is not a party to the Statute), resembles a self-referral in everything but name. Of course, one can raise questions on the actual decisions of the OTP to follow through on these referrals, as the others do, but on the point being considered here, it is difficult to say that the ICC is biased against Africa, when African countries are referring themselves to the Court!
  • The Problem with Self-Referrals
Which doesn’t mean that the self-referral practice does not raise difficulties of its own. As pointed out by the other bloggers, there are essentially two issues with this, both linked to the possible political manipulation of the Court by the States.
The first one is the limitation of the referral to the activity of the rebels. This kind of limitation can be damaging to the perception of impartiality of the Court. In this sense, I feel a similar unease at Fatou Bensouda shaking hands with the government representatives, even if it was more low key, than I did some years back when Ocampo was shaking hands with Museveni for the Uganda referral. That being said, it should be recalled that technically speaking, this limitation has no legal value. Indeed, a State refers a situation to the Court and it is then up to the Prosecutor to decide what crimes (including those committed by the government) to prosecute. In this sense, one can say that if there is an intent to manipulate the Court, it is the actual choices of the OTP that will show whether there is consent to be manipulated. Uganda and Ivory Coast are examples where it didn’t particularly bother the former Prosecutor to play along. Let’s see if the new Prosecutor has more reservations about this.
The second aspect is the idea that States get rid of the cases they do not want, even if they would be able to prosecute the perpetrators themselves. On this point I tend to agree with my fellow bloggers. It is not really in the spirit of complementarity for States to so easily delegate prosecutions to the ICC, when the end goal of the system, as least in the rhetoric, is that States be the first in line in the fight against impunity, with the ICC coming in when the system does not work, or is used to shield the perpetrators from actual justice. Such outsourcing is apparent in a number of situations. As Kevin has pointed out, Uganda clearly has the capacity to prosecute the LRA leaders, if only it could catch them (before they are all killed by infighting…). Also, one should remember that Lubanga was being held in custody for international crimes before being transferred to the ICC. Similarly, Ivory Coast explicitly announced throughout 2011 that they were not prosecuting international crimes against former president Gbagbo, to allow the ICC to do so and avoid admissibility problems, with the OTP kindly complying, whereas everybody else belonging to the pro-Gbagbo camp has since been indicted locally with war crimes, crimes against humanity and even genocide since. If that is not a case of manipulation, I don’t know what is.
But the fact remains that this is what the legal framework says. Complementarity in practice resembles nothing like the nice philosophy that is sold to us. It is a mere, non compulsory, procedural hurdle and actually more often than not resembles primacy. Moreover, the test is extremely narrow, contrary to what many people think. Kevin is right to remind us that inactivity, whatever the reason, defeats any admissibility challenge. In relation to that, I recall that one defendant (I think it was Lubanga) argued that allowing such inactivity to trump complementarity is de facto allowing States to violate their international law obligations to prosecute certain crimes. I found the challenge quite smart, but of course, the Judges decided otherwise, and found that the referral to the ICC was one way to satisfy this obligation. And even if there is activity, the very narrow “same person, same conduct” test, allows the ICC to intervene even when national prosecutions are ongoing, as the Lubanga case once again shows.While I have my reservations on the policy consequences of this framework, from a purely legal point of view, that is in my opinion the exact way to interpret the Statute. “Positive Complementarity” might be a nice PR catch phrase, but that is not how complementarity was drafted in the Statute (which is why I think that the OTP’s approach to Colombia is legally dubious, but that is a different issue).

  • Miscellaneous thoughts on “politics”, “legitimacy”, “perceptions” and other empty words
My fellow bloggers have pointed out the various issues that make them more or less cautious in relation to the referral, in terms of “political” credit or manipulation, “legitimacy”, or “perceptions”. While I enjoy having these discussions, I have to admit some caution of my own in using these terms, because I often do not know  how to use them. 
For example, the question of “politicization” puzzles me as an argument whichever way I look at it. Indeed, people claim all types of policy goals for international justice, beyond the core function of a criminal court which is to prosecute people, such as peace or reconciliation, which are broadly political goals. By doing so, they are themselves politicizing the Court in my opinion, so cannot really complain when it is politicized in a direction they do not like. From another perspective, I’ve never been convinced by the manichean dichotomy of law (=good) and politics (=bad), which is often at the heart of the argumentation of many activists, notably from the human rights fields, for example when they criticize the role of the Security Council in the ICC Framework. Law is the result of political choices, neither of them being intrinsically good or bad, and human rights are no less “political”, just because they have a diploma of universal morality. At the end of the day, who cares if States use the Court for political reasons? The ICC was set up to prosecute people, and that is exactly what it is doing (albeit not perfectly…). The ICC will never be able to prevent the political use of its work, whatever it does, in the same way that people use court rulings against other people in any national environment, even when the Court ruling is not initially meant to be used in that way.
Which brings me to my last point, on “legitimacy” and “perceptions”. For one, “legitimacy” is often unhelpful, because it is used as a static quality that an entity has or has not. But “legitimacy” is a relationship between the entity and a specific observer. It can be legitimate to some and illegitimate to others. The key being to identify the target constituency. But even when you do that, “legitimacy” is still hard to define because it is a function of expectations which are artificially created. For example, international justice is often blamed for not achieving certain goals (peace, reconciliation, reparation for victims), when this expectation should never have been created in the first place! And the worst part is that those to blame for this are the proponents of international justice themselves, who often oversell their humble family car as a formula one race car. Linked to this, there is often this illusion that legitimacy is a result of a rational equation between different objective factors, such as, for some, respecting the rights of the defense, or for others, prosecuting both sides of a conflict, or having judges from certain countries sit (or not sit) on the bench. But often, people will come to the issue with a preconceived idea of what they want, and, more importantly, what is good for them, and judge an institution by that standard, whatever it does. The ICTY was legitimate for croats when it prosecuted Serbs, but not when it prosecuted Gotovina. I might think that the ICC is illegitimate for convicting Lubanga despite the gross violations of the rights of the defense throughout the process, and his victims might think the ICC illegitimate because he was not sentenced to enough prison. At the end of the day, legitimacy is a totally unworkable concept from a methodological point of view. 
  • Bottom line
But I’m straying away from the topic. Bottom line, the self-referral is legal and it’s not the Prosecutor’s job to evaluate whether she is being manipulated politically, or whether she is perceived as legitimate by such and such constituency. She should do her job of prosecuting people correctly, because that is what she is paid for. If (and it’s a big “if”, given past performance of the OTP…) the work is done competently, then it is not her problem what the possible consequences might be. Let States take their responsibilities and put their money where their mouth is. If the Security Council wants the ICC to investigate Syria, it should help pay for it, and State parties should increase the budget of the Court (once it is established that the money is well spent). States created a Court to prosecute crimes, irrespective of political considerations, and if they are unhappy when it actually happens, they should have thought of it sooner (or even get rid of the Court). But it is not the Prosecutor’s job to do this balancing act between politics, diplomacy and accounting.
As I wrote this last paragraph, I realized that this is something Ocampo might have said (possibly in shorter sentences) and this means that this is two posts in a row where I feel sympathy for him. I fear I might be coming down with a break up syndrome, whereby, when a bad relationship ends, you suddenly remember only the good memories (also known as the graduation goggles). This is unlike me, and I hope I get over it soon…

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