At the end of last week, I attended a very interesting conference organised by the Grotius Centre of Leiden University on the “Impact and Effectiveness of the International Criminal Court”, the final conference of a several year project on post conflict justice and local ownership. The wide-ranging list of speakers covered a large number of topics, such as the question of legacy of the ICC, the insertion of the ICC in the restorative justice and peace debates or the operation and impact of the principle of complementarity.
I was privileged to be able to present my thoughts on complementarity which I called “a tale of false promises and mixed up chameleons”. You can read an extended version of my speaking notes here, on the excellent new website on post conflict justice (postconflictjustice.com) launched at the conference. In them, I analyse the current case-law on the issue and suggest that it does not allow the principle to realize the broader goals assigned to the ICC of promoting the rule of law and local ownership.
Ultimately, however, I question whether these goals should be assigned to the ICC as a function in the first place in the following way:
Of course, when I say this, I take on face value these wider objectives attached to the ICC. But these can also be questioned. It is one thing to say that the ICC can, on a systemic level, contribute to broader domestic ownership of accountability mechanisms and norm internalization, it is another entirely to actively try to achieve that on a daily basis through what is essentially a criminal court. I recently compared the ICC to the frog who wanted to be an ox in Oesop’s fable, which eventually blew up because of its exaggerated ambition. I’m wondering if an equally apt comparison is that of the mixed up chameleon in the children’s book by that name, where a chameleon, aspiring to be more that what he is, successively acquires the attribute of whatever animal he thinks is better than him (the trunk of an elephant, the neck of a giraffe, the tail of a fox, the shell of a turtle…) until he ends up looking like this:
Ultimately, the chameleon looks like nothing recognisable, a cumbersome puzzle of a being incapable of doing anything, who soon realises that he is hungry and that he cannot, in that state, do the simplest of tasks for a chameleon, catch a fly…
Isn’t the ICC, which is trying to be a truth commission for broken societies, a cathartic tool for promoting reconciliation, a civil court for victims, a human rights judge of domestic due process, a reparations fund for affected communities, a monitoring body for national capacity building, an advisory service for domestic prosecutions and more generally the self-appointed spokesperson for putting an end to impunity in the word, at risk of ending up in the same situation as the poor chameleon of the story? Let’s hope not…
This, I think, leads to a more general discussion on the role and function assigned to the Court, notably in the Rome Statute, and how it relates to what it is actually expected to do. I have believed for many years (and am of course not the only one), that that there is a disconnect between people’s expectations and what the ICC can achieve in affected communities, or in relation to general goals of peace and security. One can even challenge the idea that this specifically tailored criminal court can achieve a meaningful sense of justice.
With this in mind, I am continuously struck how so many people so easily blame the Court (and international justice in general) for not succeeding in a number of areas. Or how our expectations taint our analysis of the Court. In that respect, I had a first had experience of this last week when being kindly interviewed by a number of journalists on the Kenyatta case. Faced with dramatic questions generally revolving around the theme of whether this spelt the end of the ICC, and related issues on the weakness and one-sidedness of the Court, I came out with rather anti-climatic responses (which probably explains why so little was actually used in print): when did we ever expect the Court to not have difficulties in prosecuting sitting heads of states? who believed that it is easy to investigate crimes during ongoing conflict? of course it is easier to prosecute rebels that the government in power. Yes, the Rome Statute is a treaty, which means that powerful States who do not join the Court are mostly beyond its reach. In essence, all of this is a daily reality of the Court, so should therefore not lead to cataclysmic evaluations of its performance. Yet, this is what happens all the time.
This was also true at last week’s conference and I ultimately blame some of those who both defend and criticize the court for creating this false hope among the affected communities. Some examples spring to mind.
One speaker concluded his presentation by inviting lawyers to appreciate the complexities of post-conflict societies and not rigidly apply the ICC’s repressive framework. I think this is a misguided criticism. Those who work at the ICC are tasked with applying the Rome Statute, that is their job. This is the Court that States negotiated and joined, and it is too easy now to blame those who implement it today for not achieving goals that were never adequately catered for in the Statute, as noted by one of the participants from the OTP, who intervened at the end and concluded that the ICC was a trap that geared them to fail (letting aside at this point the fact that these goals are arguably not compatible with the nature of a criminal court).
[Update: Sara Kendall and Christian de Vos, co-organisers of the conference, have kindly taken the time to respond to this first point. I invite readers to go to the comments section, especially for some contextualization of the above comment, within a broader discussion that I did not give. As a result, I apologize if using this example out of context has led to an unfair mischaracterization of the author’s views. While this particular author did not aim at blaming the lawyers in the caricatural way I portray it, it should not take away from my basic finding that there is a tendency among a number of commentators to do that. And while there is always a margin of policy and discretion in the practice of law (as I pointed out myself in relation to complementarity, ultimately legal framework do have limits and there comes the point where the blame should rest on those who create the legal institutions rather than those who implement them.]
Another speaker suggested that we should “keep things simple” in order to enhance the pedagogic function of the Court. Again, I think that this is misguided. Law is complicated generally (if not why have some of use spent so many years studying it to achieve the knowledge we now have about it?) and international criminal proceedings are particularly complex in their procedural technicalities. There is only so much “dumbing down” of the system that can be done for a wider audience without this (noble) attempt at explaining becoming a big lie. In fact, one can wonder if the inherent complexities of international criminal law are not what make it a possibly inadequate, or at the very least a limited tool for dealing with collective violence and the societal expectations that are associated with their aftermath.
One of the most egregious example at the conference was one speaker who, when asked what he would tell the Kenyan victims after the dropping of the charges against Kenyatta, responded that he would tell them that Kenyatta was not “vindicated”, that he did not “clear his name in Court as he had wanted to” and that, if the case failed, it is not through lack of evidence, but through obstruction, notably by Kenya. This is a totally misleading way of presenting what happened. Kenyatta is presumed innocent. He does not have to “clear his name in Court”. He enters the proceedings innocent and remains that way until the Prosecutor has proven his guilt beyond a reasonable doubt, which did not happen. Moreover, the Prosecutor herself has said that she does not have enough evidence and the Chambers have explicitly blamed the OTP for a number of failures in the investigation. If this is the way the case is presented to the victims by what appears to be a knowledgeable observer of the Court, how can we be surprised that people have false expectations about the institution?
Of course, not all the blame rests on outsiders to the Court. State parties to the ICC create equally false expectations when they, for example, try to use the institution as a conflict management mechanism, as in the Syria example. Equally, the OTP, while being but one organ of the Court, is often seen as symbolizing the fight against impunity, and the Prosecutor becomes the most public figure of the institution. This carries with it a certain responsibility to be cautious in not using too emphatic a discourse, which often happens. In relation to this, for example, I’m not sure that Prosecutor Bensouda being such a vocal spokesperson of the campaign to end sexual violence in conflict is not sending the wrong message that all victims of such crimes can expect the ICC to help them, which is clearly not the case.
At the end of the day, we have to accept that maybe, just maybe, we created an institution that is inadequate to achieve the (unreasonable) goals that underscored its coming into existence. From there, we have two options. The first one, possibly more pragmatic, is to try and tweak with what we have to make it more efficient in realizing these goals. This was the ambition of last week’s conference.
The second one, more radical, is to say that the ICC is a failed attempt and that we should start thinking of something else. This does not necessarily mean that we get rid of the Court, but at least that we stop giving it (and international criminal justice in general) such a hegemonous and ultimately unhelpful position in all discussions relating to post conflict situations. This would avoid the current frustration with the Court and put the responsibility for its alleged failures squarely back where it belongs: on the States, activists and NGOs that wanted it and designed it as it is.
In relation to that, at last week’s conference, one speaker took the floor to defend the ICC by saying that people criticize it too much and that, by doing that, they are playing into the hands of the war criminals. Ultimately, he cautioned against any criticism that might fragilize the Court. These are strong comments, but I’m not sure how helpful they are. Indeed, if, as an observer/academic, we become blinded by our emotional attachement to our object of study, this taints the credibility of everything we say. Intellectual honesty dictates that we accept to conclude that an institution has failed, if that is the case and what is shown by our research, however much we have invested in it.
Has that time come for the ICC, where the early passion has faded away, and a rational stocktaking leads to the inevitable conclusion of a divorce? I do not know. But the option needs to be on the table if any analysis of the Court is to be credible. Of course, International Criminal Justice has a lot of children (institutions, activists or individuals invested in the relationship…) which always makes things more difficult in a divorce. But the answer cannot be that we have to stay together “for the kids”, which is probably, on the long term, a recipe for disaster for everyone.
Spreading the Jam 
Dov, I was at the conference (as you know) and I believe you may have mischaracterised some of the interventions. For example, the claim that one participant invited lawyers ‘to appreciate the complexities of post-conflict societies and not rigidly apply the ICC’s repressive framework’ does not sound accurate to me. If we are thinking of the same intervention, my recollection is not that the individual said anything about a ‘repressive framework’, but rather called for some attention to the contexts in which the court is operating. Surely even a committed positivist-formalist can grant that applying the law is not a mechanistic activity (you’d hate to just be a mechanic), and judges and lawyers alike have granted that there needs to be some attention to the ‘extra-legal’ – conditions on the ground, issues of cooperation, and so forth. I read some of your criticisms here as based upon straw-man versions of some of the points made.
Sara, thank you for your comments. I’m sure we’ll have more opportunities to elaborate on this in the future, but a few related points for further discussion:
1) In relation to your defense of the particular speaker (whose presentation you actually did not attend if I recall, because you were not there on the first day), I might have misremembered the exact words, but I do find it extremely symbolic and telling that the choice was made, in a rich and complex presentation, to conclude with those words directed at lawyers implementing the Rome Statute, when, for the reasons discussed in point 3, I think they come far lower in the chain of responsibilities for the failure of the ICC, if it can even be called a failure (see point 5).
2) I never said that law was mechanistic. My whole presentation, was about explaining how we should play more attention to the actual legal framework on complementarity and how it could actually accommodate some of the objectives of post conflict broad policies, rather than try to invent vague promises relating to “positive complementarity”.
3) In any case, I do not see what being a so-called “committed positivist-formalist” has anything to do with the argument. I would not imagine that my claim that legal frameworks have certain boundaries and that there is only so much leeway that those tasked with implementing them have, given the functional limitations of their role, would be particularly controversial or even original. From there, there are 2 questions: a) What scope of discretion is afforded to these actors? On this, we might legitimately argue and disagree on the scope of the legal/judicial function, which has occupied sociologists and philosophers for some time now. I’m not sure what being a positivist or not has to do with it b) Once we agree on the limits of the legal/judicial function, is it fair/appropriate/accurate/legitimate to blame the practitioners for not going beyond it? this was precisely the point I was making in my post. If that was not clear, I’m sorry, I should have clarified the need to discuss the first part of the intellectual reasoning…
4) I’m not sure what other straw-men you think I put forward in my post, but I would be happy to hear more on them.
5) More generally, do you really disagree with the basic idea of my post, that a number of practitioners, defenders but also, possibly ironically, critics of the ICC, are creating expectations about what international justice can achieve that are bound to not be met. To use your expression, I would say that they are creating “straw-men” in the form of standards by which to judge the performance of the Court which are methodologically and conceptually flawed from the outset. Maybe you do, but I do think I should be allowed to raise these methodological challenges.
6) [redacted]
Hi Dov,
Thanks for your provocative and colorful (literally) presentation last week. As one of the speakers discussed in this post, I want to clarify that my invitation to lawyers to appreciate the complexities of post-conflict societies–context, in other words–was not at all limited to those who work at the ICC or at “lawyers implementing the Rome Statute.” If you’ll recall, my comments focused on the question of the ICC’s ability to act as a catalyst for accountability at the domestic level, a goal that has been central to the discourse around complementarity over the past 5-7 years. In this, I am concerned with how actors within and outside of the institution have used the principle to either threaten states into action (the ICC will “take over” if you don’t investigate/prosecute) or cajole them (the cooperative, “positive” model).
I share your sense that the latter has largely amounted to “vague promises”; it has functioned far more in theory than practice. However, I am even more concerned that the threat-based approach to complementarity–built on the shared premise that states parties must prosecute ICC crimes by virtue of having ratified the Statute, that they must implement the Rome Statute domestically, and that they must do so in an identical manner to the ICC–has largely become a disciplinary exercise. It flattens the landscape of what justice can or should mean in most contexts; it contributes to unrealizable expectations in many contexts; and it accommodates to state power rather than challenging it in particular contexts.
I do not “blame” anyone for this, nor would I frame any of this as a question of “success” or “failure.” However, I do think that much of the desire about the impact the ICC can or should have on domestic jurisdictions speaks to the appeal that a rules-based international order holds. Harmonious conceptions of a “tiered” approach to ICL–working symbiotically at the national, regional, and international level–or faith that domesticating the Statute and “training” judges are the most important ingredients for accountability speak to a kind of certainty about law’s promise and a comfort in its rationality. Unsurprisingly, I think lawyers–those trained in the law–have a greater professional investment in this project than others, even when political, material, or social conditions on the ground might counsel otherwise.
As a final note, although my comments were not directed at those who work at the ICC per se, I take issue with your characterization that they are merely “applying” the Rome Statute. You say that, “[t]his is the Court that States negotiated and joined,” as if this institution and what it means is somehow frozen in time. But as the debates around complementarity illustrate, all of this is evolving, all of it is subject to interpretation. Your view of the “actual legal framework on complementarity” is not the same as, say, Human Rights Watch’s, and many others would likely argue that the legal framework itself should not be divorced from equally compelling policy considerations. My point is that is all of this is under construction, but we might benefit from being more mindful of our disciplinary predispositions (or blind spots) in the process.
Hi Christian,
Thanks for taking the time to answer my “challenge. In addition to the points that I raised in relation to Sara’s comments, such a couple of extra issues.
1) I’m sorry if I mischaracterized your position in my post, or rather did not take the time to contextualize your comments within the broader framework of your reflection. Especially as I agree with you to a large extent, as I pointed out in my own presentation and in my post. I more particularly agree with the narrowing of options and of the “justice landscape”, as you nicely put. I’ve updated the post inviting readers to read your (and Sara)’s comments to get a more comprehensive idea of the discussion.
2) I am not saying that you are personally blaming lawyers and my post should have been clearer about that. I was using your comment as a symbol of the way the issues can sometimes be framed so as to risk creating false expectations about the ICC, which is essentially the narrow point I was trying to make in my post.
3) I think I must have expressed myself badly on the question of the limits of the legal framework. I’m not saying that the Rome Statute is frozen in time. As I pointed out in my own presentation, there is a spectrum of possible interpretations that might be adopted to reconcile the ICC with the broader goals of post conflict justice. The point I am making is one of principle: the institutional/legal design of the institution necessarily impacts on how it can operate and what it can achieve. A criminal court, with its rules and procedural logic can only go so far in realizing, as a daily function of its operation, certain concrete objectives (including the one you mention of promoting local accountability mechanisms). Once more, it doesn’t mean we cannot play around with the institution (as I point out in my post), but, at some point, I believe we have to challenge the basic premises of the institution and its criminal law rationale. I would not think either you and Sara would disagree with that.
4) Finally, I’m not sure I see the point about disciplinary predispositions (which I link to Sara’s point about formalism and positivism). I have no personal investment in this Court or a priori illusions about its benefits, or the benefits of law generally. In this sense, whatever qualms you might have with my comments, please do not put me in the category of those who blindly defend the Court or the inherent morality or justice of legal norms. That is just not my way of thinking, and I’ve never claimed otherwise. As a result, I’m not defending any particular discipline in the discussion.