Beyond the US sanctions, what led to the possible demise of the International Criminal Court (ICC)? Was the model and the supremacy of criminal law just misled from the start? And if the ICC falls off the cliff, what’s next? What’s the place and future of international law? Two-long time practitioners and researchers Mark Freeman and Mark Drumbl are grappling head-on with these burning questions.
Justice info: What is your general analysis of the world dynamics of international justice today in the context that we see developing, and unraveling?
Mark Freeman: You kind of gave the answer when you said “unraveling”. I think all three of us have watched different chapters of the story of international justice. The modern onset arguably began with the establishment of the Tribunal for the former Yugoslavia, 32 years ago. Since then, we’ve seen multiple chapters, some good and some bad. The “behemoth” in the middle of the story, the kind of maximalist expression of the biggest aspirations of international justice, is the Rome Statute and the creation of this permanent International Criminal Court (ICC) – which was meant to be a court of last resort. The ICC is its own story in a sense, and I don’t think it has reflected the best of what we’ve seen across these different chapters of international justice.
Mark Drumbl: If you want to unravel something, it has to have been raveled. So, what did we have before? I think what we had – in particular, the ascent of the International Criminal Court – is a system of international justice that was tinged with some politics, as inevitably is the case, and was rooted in some kind of a victor’s justice. We have this idea of the ICC as this bastion of universalism, permanence, a utopic form of idealism, of justice. And I think what we really are seeing with the ICC – and it’s taking up so much of the oxygen in the room – is some pursuit of perfection that actually has come at the price of just securing the good. I mean that with the permanence of the ICC, there is this notion that it can deal with all violences everywhere, in the absence of really digging into local, historical, cultural particularities, this idea of some self-evident nature of law as beyond politics. And in some ways, we’ve seen a regress in the palatability of international justice to a lot of audiences. Not just in powerful places. Also in powerless places where the vision of justice, as propounded by the ICC, doesn’t fully resonate with local expectations, wants, or desires. And I think everyone is aware that to some extent the ICC is a bit of a flailing institution.
Ironically, if you analysed it from a business perspective, its expenditures are stratospherically higher than any kind of return on investment. But let’s put that to the side. One area where I think the court has issued some deliverables is in the areas of rebel leaders in weak states who fail in their rebellions. Governments of those states – who often themselves are not exactly aligned with the highest order in human rights principles – self-referred that violence to the ICC. In prosecuting unsuccessful rebel leaders through self-referrals, the ICC has actually delivered some modicum of convictions and outputs, and along the way has expressively developed international criminal law a bit, for example, on child soldiers and intentional destruction of cultural property. But what if you go full circle? That is not all that much different than victor’s justice that was so derided so long ago. Because essentially these self-referrals are victor’s justice.
So, what is unraveling is not necessarily a structure, but perhaps an aspiration, some genre of a project. And perhaps the pursuit of this project, in some ways, became the enemy of what was just good, or alright, or half decent.
The ICC has spoken so much about all of its abilities, but has delivered very little. There’s a great pain to disappointment, and there’s a lot of disappointment that’s out there among victims.
You mean that the recent moves by the prosecutor of the ICC of going after top leaders was too much of a challenge to the idea of victor’s justice, and that couldn’t exist?
Mark Drumbl: No, I think it’s all fine and well to have aspirations to transcend the supposed politicization of law to some neutrality and supremacy of law. But I’m also not certain that the best place to do that is through the choice of arrest warrants in cases that ultimately just lead into dead ends. The non-dead ends of the ICC have been traditional victor’s justice cases, these self-referrals.
So, what’s the role of a court? Is it to make policy? Is it to advance ideals? Or is it actually to enforce law in areas where enforcement is plausible? It’s not only these heads of states that are eluding punishment. I really think we need to deal assertively with perceptions among victimized populations that the ICC has spoken so much about all of its abilities, but has delivered very little – and there’s a great pain. There’s a great pain to disappointment, and there’s a lot of disappointment that’s out there among victim constituencies.
Mark Freeman: The ICC was conceived as a utopian project, but there is, and was, a very important principle that I think could have offered, had it been implemented to the full, a different fate for the ICC than the one that we are witnessing now, which may be the slow-motion death of this institution. That principle is complementarity. The logic of complementarity is a logic whereby the court, the whole enterprise, is all meant to be a last recourse. The first recourse, according to the principle of complementarity, is for international crimes to be tried domestically. And had that principle been consistently and aggressively pursued, advocated, and implemented by this huge institution – in other words, had it been the ICC’s focus to train, support, empower the domestic authorities with responsibility to try international crimes – I think we could have found ourselves at a quite different moment in the story of international justice.
The ICC may have been a dead man walking all this time.
You’re referring to the “slow motion death of the ICC”. A number of observers are now openly talking about the possibility that this institution might just cease to exist. Is it obvious to you that it has to happen?
Mark Freeman: I do think it’s a story of death that we are watching, a death in slow motion, which may become fast motion soon. But some would say – to use Gabriel Garcia Marquez’s famous book’s title, “Chronicle of a Death Foretold” – that the seeds of this institution’s death were baked into the mandate. It was always going to be struggling very significantly in the realm of politics and diplomacy. It wouldn’t be allowed to just be a court of law because of the structural connection that was in-built between the Court and the UN Security Council on the one hand, and because of the lack of powers of arrest and the absence of many great powers as States parties on the other. Then you add to that a key early event: even before the court began its first day of work in 2002, 9/11 took place.
Some could use a different metaphor, the idea of a “dead man walking”. The ICC may have been a dead man walking all this time. Because there have been and always were going to be powerful enemies of this court. We could see this going back to the negotiation of the Rome statute in the 1990s. This was not going to be an easy child to keep alive and watch through adolescence and into full adulthood.
But through its underperformance, through a series of dramatically bad choices, under-attention to the politics, to the diplomatic role that it has to take as seriously as its legal role, I do think that, notwithstanding that this death may occur largely through murder, if you like, by the enemies of the court on the outside, the ICC has done things that make it easier for the court’s enemies. I mean, if the court died tomorrow, if it had to close its doors, I don’t think that the story would last more than 48 hours in the headlines. So those are different aspects of how I would see the death story. But I do think that it is what we are watching right now.
It’s quite easy, you know, to look at this bloviated and bloated institution that’s blundering, and wonder why it happened, and have prognostications of death and rage, rage against the dying of the light.
Mark, is that what we’re watching right now?
Mark Drumbl: Well, death metaphors are always very, very compelling both in art and literature. I mean, just listening to Mark, I’m reminded of Dylan Thomas – “rage, rage against the dying of the light”. This is the efforts of institutions or human beings to resist, reject, thwart, parry death in some form or another. If institutions are organisms with instincts, then what we’re seeing is the very natural push to remain in business and to remain relevant, to be thought of and valued. I think we see this in the context of the International Criminal Court indicting powerful leaders that they know they will never, ever get into custody. And we see this in its pursuit of a set of very problematic phenomena, such as, for example, gender apartheid in Afghanistan.
It is a very live question whether the penal prosecution of a small number of leaders is the best way to secure human rights in Afghanistan – and of course this is deeply selective in that British and US involvement has simply not morphed into any kind of concrete prosecution. So, we always have this Achilles heel of selectivity.
To be continued.
