Editor’s Note: This post is part of series discussing the 2009 EJIL Article by Professor Kenneth Anderson: “The Rise of International Criminal Law: Intended and Unintended Consequences,” . Previous posts in this discussion were by Ken Anderson (see here, here here and here), Brad Roth and Amrita Kapur. You can read these posts by clicking on their names in the list on the right.
I would like to thank Brad Roth and Kenneth Anderson for their thoughtful engagement (see here and here) with my previous contribution to this discussion (see here). Given the time that has elapsed since our discussion, I will restrict this response to a number of discrete issues raised by both.
Firstly, despite taking issue with my approach, Roth nonetheless reaffirms a number of propositions already contained in my earlier contributions, including on the possibility of ‘false positive’ cases of intervention, the procedural flaws of criminal prosecution, and the difficulties in prosecuting those most responsible. He correctly challenges the feasibility of ‘an authoritative condemnation of perpetrators’ when the ‘use of ruthless methods by …. non-pathological’ actors gives rise to a too-large pool of potential ICL defendants and consequently, prosecutorial selectivity. My complete agreement with these sentiments is reflected in my previous post, which criticizes the criminal prosecutorial process as a method by which justice is achieved because of its inherent procedural flaws.
I neither expect prosecutions to necessarily achieve an ‘authoritative’ condemnation of all perpetrators, nor do I believe they are essential to, intended to, or in fact, reaffirm the dignity of the victims: criminal trials have never revolved around victims, who are treated merely as witnesses for the ‘wronged’ state. In both my EJIL article (which responds to Ken Anderson’s original article) and my post, I embrace a broader notion of justice which includes mechanisms such as truth commissions, reparations, lustration and memorialization efforts as part of a multi-faceted response to systematic or widespread violations of human rights (also termed transitional justice). It is these non-prosecutorial initiatives that specifically seek to recognize victims and promote possibilities for peace, reconciliation and democracy.
On the other hand, the fact that prosecutions of heads of state typically occur when their stranglehold on political and military power is on the decline does not go so far as to demonstrate ‘prosecutions will almost always be reserved for the politically unpopular and strategically uninfluential’. Indeed, the use of alternative retributive justice methods have been invoked precisely because prosecutions are reserved for the more senior perpetrators, for both pragmatic and reconciliation reasons. Rather, through proving individual responsibility for articulated crimes, trials contribute to the re-establishment of the rule of law and are important both symbolically and practically in re-instating social and legal norms.
Roth seems to be suggesting that lack of political neutrality is responsible for prosecutions only of the strategically uninfluential: I agree this is certainly the intention (as demonstrated by the previously consistent practice of amnesty agreements and pardons), but the practice is shifting. Prosecutions of the politically popular and strategically influential remain extraordinarily difficult, but they do occur: sixty-seven prosecutions of heads of states or government since 1990 (most before courts in their own countries) is a trend we cannot disregard.
Whether moral judgments are a pre-requisite to peace and reconciliation is more of a practical question than a normative one. The evolution of the ICC’s operation and implementation of the principle of complementarity significantly affects this issue, and has been extensively discussed elsewhere. Very briefly, the implication of the ICC’s engagement with and influence over Columbia’s formal and Uganda’s informal processes suggest reluctant states may be persuaded to move further towards enforcing criminal accountability in combination with other more politically viable measures.
Secondly, Roth makes a bold distinction between “atrocious means in the service of a manifestly evil end” and the non-pathological use of ruthless methods. I contest the relevance and usefulness of such a distinction on the basis of a multi-disciplinary analysis in my EJIL article response. Further, I characterize ICL as the preferred tool (compared to honor or reciprocity as raised by Anderson in his original article) for minimizing the commission of ruthless acts, whether on pathological or non-pathological grounds specifically because ‘ordinary people…without any particular hostility…can become agents in a terrible destructive process’ (citation from footnote 29, my EJIL article, p1036).
Roth implicitly suggests that the decline in the exercise of universal jurisdiction is a hoped-for, but ‘contrary’ trend. Without a supporting longitudinal survey of cases, my response is limited to the following analysis: if the ICC’s existence and scrutiny increases the number of domestic convictions for international crimes, the severity of the sentences, and the likelihood that senior perpetrators will be forced to face some measure of accountability, then the impetus to exercise universal jurisdiction and its political justifiability may diminish. Certainly, the review of, and increase in, sentences for Colombian paramilitaries, as well as the defection of LRA members because of their concern about ICC prosecution suggest these effects are possible.
Turning to Anderson’s post, I will briefly consider one central question he raises: when are we entitled to say the ICL justice project hasn’t worked? Given the systemic nature of international crimes, perhaps when it becomes clear deterrence has failed and large proportions of societies demonstrate they are as likely as ever to participate in such crimes? Perhaps when societies whose leaders have been prosecuted ‘relapse’ into a situation which sees the repetition of international crimes? Perhaps in a few years time, when other compelling humanitarian cases gain the attention only of the media and not of intervention forces, and R2P is no closer to being a norm? These are dire indications of failure, and perhaps this one question is worthy of a sustained discussion to generate more sensitive criteria. In this response, I have attempted to briefly highlight the complexities inherent in any evaluation of ICL, as well as my own broad conception of ‘justice’ in which criminal prosecutions are just one tool, albeit flawed and insufficient on their own, to achieve the grander aims ascribed to the ICJ project.