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The Oxford Handbook of International Criminal Law
 9780198825203, 019882520X

Table of contents :
Cover
The Oxford Handbook of INTERNATIONALCRIMINAL LAW
Copyright
Acknowledgements
Table of Contents
Table of Cases
Table of Primary Legislation
Table of International Treaties and Conventions
List of Contributors
Introduction
Actors
Spaces
Rationales
Crimes
Modalities
Narratives
Anxieties
Boundaries
Future(s)
Section I: ACTORS
Chapter 1: An Empirical Analysis of International Criminal Law: The Perception and Experience
I. Introduction
II. Listening to the Accused as a Vector of Knowledge
A. Epistemological Approach
B. Methodology
III. Positioning of Those Tried: A Structural Interrelation
A. A Gap Between Expectations and Reality
B. Violence and Unfairness of the Procedure
C. A Politicized and ‘Outgroup’ Justice
D. The Role Assigned to the Defendant
IV. Conclusion
Chapter 2: Defence Perspectives on Fairness and Efficiency at the International Criminal Court
I. Introduction
II. The Rise of Managerial Judging at International Criminal Courts
III. Defence Views on Fairness and Efficiency at the ICC
A. Survey Method
B. Survey Findings
1. Judicial Managerialism
2. Defence Investigative Resources
3. Prosecutorial Disclosure
4. Confirmation of Charges
IV. The Future of Managerial Judging and Procedural Fairness in International Criminal Procedure
Chapter 3: Neither Here nor There: The Position of the Defence in International Criminal Tribunals
I. Introduction: The Symbolic Inclusion of the Defence
II. The Foundational Balancing Away of the Defence
A. Customary Law as a Vehicle for Moral Condemnation
B. Interpreting International Criminal Law and the Fight against Impunity
C. The Ultimate Balancing Away on the Basis of Moral Condemnation
III. The Procedural Balancing Away of the Defence
A. The Participation of Victims
B. Evidentiary Standards
C. Expeditiousness
IV. The Institutional Balancing Away of the Defence
V. The Systemic Balancing Away of the Defence
VI. Concluding Thoughts: Working on the Periphery as Defence Counsel
Chapter 4: The Creation of an Ad Hoc Elite: And the Value of International Criminal Law Expertise on a Global Market
I. Introduction
II. Theory, Method, and Data
III. The Advent of the ICL Elite
IV. The Creation of a Group and its Symbolic Capital
V. The Value of the ICL Elite on a Broader Market
VI. Conclusion
Chapter 5: Teachings of Publicists and the Reinvention of the Sources Doctrine in International Criminal Law
I. Introduction
II. Publicists in Public International Law
A. Publicists and Gap-Filling in International Law
B. Publicists as a Subsidiary Source of Law
III. Publicists at the International Criminal Court
A. Application and Hierarchy of Sources in ICL
B. The Role of Scholarship in the Jurisprudence on Modes of Liability
IV. The Reliance on Doctrine
A. Scholars and the Dogmatik
B. Scholars and their relationship to international criminal law
V. Conclusion
Section II: SPACES
Chapter 6: Legitimacy in War and Punishment The Security Council and the ICC
I. Introduction
II. Moral Expressivism, Standing to Blame, and Institutional Legitimacy
III. The Legitimacy Problem in International Criminal Justice
IV. Legitimate Illegality and Legal Illegitimacy
V. The Path Forward
Chapter 7: Africa and International Criminal Law
I. Introduction
II. Versailles, 1919: ‘resist[ing] with impunity’
A. Re-telling Versailles, 1919
B. Presence, Absence, and ‘Re-presentation’ at Versailles
III. Nuremberg, 1945: Colonialism, Genocide, and European Crimes
A. ‘Nurnberg was colonial’
B. A ‘dark, abiding, signing . . . presence’
C. Threads: Race, Empire, and Affective Regimes
IV. The Cold War era: Late colonial violence, Biafra, and apartheid
A. Re-telling ‘The Cold War Era’
B. Late Colonial Violence
C. The Biafran war, the Postcolonial World Order and the ‘Image[s] of Africa’
D. African States, Apartheid, and the (almost) International Criminal Court
V. The 1990s: The Era of (Anti-)Impunity
A. April 1994
B. A Present Absence, Almost: Apartheid (and Rwanda) at Rome, 1998
VI. Concluding Remarks
Chapter 8: On Regional Criminal Courts as Representatives of Political Communities: The Special Case of the African Criminal Court
I. Introduction
II. The Social Function of Criminal Law
III. From International to Regional Criminal Law Enforcement: A Step Forward?
IV. The Prospects of an African Criminal Court
V. Some Final Reflections
Section III: RATIONALES
Chapter 9: Taking Internationalism Seriously: Why International Criminal Law Matters
I. Introduction
II. Evaluating the Traditional Rationales of International Criminal Law
III. Robust Internationalism as a Constitutive Component of International Criminal Law
A. The ICC
B. The Ad Hoc Tribunals
C. Universal Jurisdiction
D. Hybrid Tribunals
IV. Taking Internationalism Seriously: The Case for Robust Internationalism
V. Conclusion
Chapter 10: Impunities
I. Introduction
II. Impunity in Text and Discourse
A. Enabling Instruments
B. A Sampling of Press Releases and Public Statements
C. Punishment, Peace, and Transition
III. Impunity and Selectivity
IV. Reimaging Punishment
V. Conclusion
Chapter 11: Courting Failure: When Are International Criminal Courts Likely to be Believed by Local Audiences?
I. Introduction
II. Factors Predictive of Failure
A. Objective and Subjective Limitations on the Processing of Information About Atrocities
B. Towards Generalization
C. A Predictive Hypothesis
III. Nuremberg and Tokyo
IV. Rwanda
V. Sierra Leone and Cambodia
VI. Conclusion
Section IV: CRIMES
Chapter 12: ‘What is An International Crime?’
The nature of international crimes
The obligation to criminalize
Specificity and uniformity
Direct Prohibition
The uses of ICL
Conclusion
Chapter 13: A Theory of International Crimes: Conceptual and Normative Issues
I. Introduction
II. What Is an International Crime?
III. What Makes a Given Conduct an International Crime?
IV. Conclusion
Chapter 14: From Aggression to Atrocity Rethinking the History of International Criminal Law
I. Introduction
II. War Prevention as International Law’s Fondest Hope
III. Nuremberg as an Aggression Trial
IV. The Cold War: Definition, Critique, and Decline
V. Conclusions
Chapter 15: Enslavement as a Crime against Humanity: Some Doctrinal, Historical, and Theoretical Considerations
I. Introduction and Background
II. Doctrinal Underpinnings, ‘Humans’ and ‘Persons’
III. Historical Sources: Roman Law’s Enduring Influence
IV. Theoretical Framework: Natural Life and Political Life
V. Conclusion
Section V: MODALITIES
Chapter 16: A Criminological Approach to the ICC’s Control Theory
I. Introduction
II. International Crimes: A Different Type of Criminality?
A. The Political and Ideological Context
B. The Organizational and Social Context
C. The (Social-)Psychological Context
D. Conclusion
III. Perpetrators of International Crimes
IV. The ICC and the Concept of Individual Criminal Responsibility
A. The Difference between Principals and Accessories
B. Commission via Organizational Control?
C. Shortcomings of the Control Theory and How to Repair Them
V. Conclusion
Chapter 17: The Two Cultures of International Criminal Law
I. Introduction
II. Expansionism in International Criminal Law
III. The ‘Franconian’ Culture of International Criminal Law: Sources-Based Expansionism
IV. The Roman culture of international criminal law: hermeneutic expansionism
V. Concluding Remarks: Cultural Transformation and the Contradictory Beliefs of International Criminal Lawyers
Chapter 18: Immunity and Impunity
I. Introduction
II. Immunity and Responsibility
III. Combatant Immunity and Official Immunity
IV. Conclusion
Chapter 19: Epistemological Controversies and Evaluation of Evidence in International Criminal Trials
I. Introduction
II. Intuitive Holistic Approach v. Deconstruction
III. Is the Standard of Proof for Conviction Subjective or Objective?
IV. Mathematical Methods in Evaluating Evidence
V. Criticism Against the Beyond Reasonable Doubt Standard
VI. Is Fact-Finding at the International Level Possible? The Turn to Empirical Legal Scholarship
VII. Conclusions
Chapter 20: The Right to Truth in International Criminal Law
I. Introduction
II. Background: The Right to Truth at the Crossroads between International Human Rights Law and International Criminal Law
III. The Right to Truth at the ICC
A. Truth and the International Criminal Trial
B. Victims’ ‘Personal Interests’ and the Determination of Guilt or Innocence
C. New Charges Against the Accused
D. Right of Victims to Introduce Evidence
E. Victims’ Obligation to Disclose Exonerating Evidence
IV. Reflection
Chapter 21: From Machinery to Motivation: The Lost Legacy of Criminal Organizations Liability
I. Introduction
II. The Origin of Criminal Organizations Liability
III. The Practice of Criminal Organizations Liability
IV. Criminal Organizations in Contemporary International Criminal Law
V. Organization as Machinery, Organization as Motivator
VI. Conclusion: An Alternate Reality for Criminal Organizations
Section VI: NARRATIVES
Chapter 22: Historical Reasoning and Judicial Historiography in International Criminal Trials
I. The Flesh of History: Jurisprudence and Historiography
II. Legal Infrastructures: Storytelling after the Second World War
III. Judicial Historiography: The Nuremberg Paradigm
IV. The Twisted Road to The Hague
V. Conclusion: The Interdisciplinary Pitfalls of Transitional Trials
Chapter 23: Criminal/Enemy
I. Introduction
II. Enemies but not Criminals
III. Criminals but not Enemies
IV. Enemies into Criminals: Criminalizing Aggression
V. Deconstructing the Criminal/Enemy Dyad
Chapter 24: The Enemy of All Humanity
I. Introduction
II. The Strange Career of the Hostis Generis Humani
A. Pirates
B. Privateers
C. Terror tactics and unbridled aggression
D. Slave trading
E. The Eichmann trial
F. Torture and other core crimes
III. An Alternative Genealogy
IV. Analyzing the Hostis Generis Humani
Chapter 25: Moving Images: Modes of Representation and Images of Victimhood in Audio-Visual Productions
I. Introduction
II. Representation in Documentary Film
A. Attracting Audiences and Representing Reality
B. Combining Presentation and Representation
III. The Representation of Victims in Documentary Film
A. Ideal Victims
B. Alternative Messages
C. The Bureaucratic Victim
IV. Conclusion
Section VII: ANXIETIES
Chapter 26: International Criminal Tribunal Backlash
I. Introduction
II. International Criminal Tribunals: Opposition (and Backlash)
III. Defining Backlash
IV. A Theory-Informed Approach to International Criminal Tribunal Backlash
V. South Africa and the International Criminal Court: Archetypal Backlash
A. Background
B. Choosing Africa: A Pluralist Approach
VI. Serbia and the ICTY: Persistent Backlash
A. Background
B. ‘It is an incredible situation. We always have a problem with Serbia. Always’
VII. Lebanon and the Special Tribunal: Absent Backlash
A. Background
B. Lebanon and the STL: reassuringly undemanding
VIII. Conclusion
Chapter 27: The Crises and Critiques of International Criminal Justice
I. ‘You and Whose Army?’: International Criminal Law’s Curse
II. Of Crises and Critiques
A. Crisis, Again?
B. Critical Turn
C. What Crisis Does
III. Legitimacy Skirmishes and Mediatory Spaces
A. What Critics Want
B. The Mainstream Strikes Back
C. Diagnosis
IV. Legitimacy as Crisis Management
Chapter 28: Hangman’s Perspective: Three Genres of Critique following Eichmann
I. Introduction
II. Hannah Arendt: The Rule of Law
III. Shoshana Felman: Catharsis
IV. Netalie Braun: Sacrifice
V. Outer Circles of Harm
VI. Conclusion
Chapter 29: Inequality of Arms Reversed?: Defendants in the Battle for Political Legitimacy
I. Courts as Communicative Institutions
II. Equality of Arms Reversed
A. Defiant Defendants
B. Prosecutors
C. Political Contexts of Courts
III. Legitimacy is Multi-Faceted, Contingent, and Fluid
IV. Resonant Prosecution Discourses
V. Defendant Tamed by the Process
VI. Conclusion
Section VIII: BOUNDARIES
Chapter 30: International Criminal Law and the Subordination of Emancipation: The Question of Legal Hierarchy in Transitional Justice
I. Introduction
II. Transitional Justice Hierarchy in Action: Sudan Referral
III. Conceptual Background and Legal Origins: Legal Accountability and Social Emancipation
A. The Rise of Transitional Justice
B. Rights-based Transitional Justice: Accountability vs Emancipation?
IV. Legal Hegemony of International Criminal Law in International Transitional Justice
A. Darfur Referral Revisited
B. Accountability as an Unassailable Norm
C. Victims’ Rights Subordinated
V. Abandon Rights? The Power of Human Rights in Transitional Justice
VI. What Does This Critique Tell Us?
Chapter 31: International Criminal Justice and Humanitarianism
I. Introduction
II. International Criminal Justice Against Humanitarianism
III. International Criminal Justice And Humanitarianism
A. Politics and Power
B. Accountability to Constituencies
IV. International Criminal Justice as a Form of Humanitarianism
A. Humanitarianism at the ICC
B. Legal Humanitarians
V. Conclusion
Chapter 32: International Criminal Law and Culture
I. Introduction
II. International Criminal Law’s Encounter of Cultural Difference
III. ICL Courts and other Culturally-Informed Post-Conflict Justice Processes: Competing Conceptions of Justice
A. Culturally-Informed Justice Processes as Alternatives or Supplements to ICL Trials
B. The Risk of Marginalizing Alternative Justice Conceptions and Processes
IV. Norm Construction and Trial Participation: Domestic Legal Cultures as ICL Resource
A. Hybridization of the ICL Legal System and Domestic Legal Cultures
B. Culture Clashes and Adaptation Obstacles among ICL Legal Actors
V. The Multicultural ICL Trial: Cross-Cultural Communication Challenges and Culture-specific Evidence
A. The Difficulties of Ensuring Accurate Linguistic Translation
B. ICL Courts’ Treatment of Culture-specific Arguments
VI. Conclusion: Operational, Legitimacy, and Representational Challenges
Chapter 33: The Core Crimes of International Criminal Law
I. Introduction
II. Defining Core Crimes
A. Ambiguities in Distinguishing Core Crimes and Treaty Crimes
B. Ambiguities in Defining Core Crimes as International Crimes
III. Continuities ‘from Nuremberg to Rome’
IV. Discontinuities ‘from Nuremberg to Rome’
V. Biases of the Core Crimes
A. Civilization Bias
B. Political-Economic Bias
C. Aesthetical Bias
VI. Conclusion
Chapter 34: Transnational Crimes
I. Introduction: What Are Transnational Crimes?
II. A Conjoined History
III. The Problem of Definition
A. Defining International Crimes
B. Transnational Crime
1. The Sources Thesis
2. The Private Actor Thesis
IV. Crimes at the Boundary: Piracy and Torture
A. Piracy
B. Torture
V. Conclusions
A. Crimes in Search of an International Tribunal?
B. The Public/Private Divide
C. Contextual Elements and Seriousness
D. Final Thoughts
Chapter 35: The Unity of International Criminal Law: A Socio-Legal View
I. Introduction
II. International Criminal Law and the Politics of Fragmentation
A. Between Inflation and Rarefication
B. Ideational Approaches and the Quest to Define ‘Truly’ International Crimes
C. Critical Approaches: Rarefication as Reorganization of the Field
III. The Problem with Fragmentation
A. Doctrinally Weak
B. Jurisprudentially Suspicious
C. Criminologically Dubious
IV. Towards A Unified Research Agenda
A. Refocusing on the Internationalization of Crime Control Instead of the Criminalization of International Law
B. Thinking Globally and Transversally
C. Reconfiguring Theory
V. Conclusion
Section IX: FUTURE(S)
Chapter 36: International Criminal Law: The Next Hundred Years
Anniversary Waltz
Reformist Hope
Critical Affinity
Unfriendly Scepticism
Perimeter Defence
Index

Citation preview

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t h e ox f o r d h a n d b o o k o f

I N T E R NAT IONA L CR I M I NA L L AW

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The Oxford Handbook of

INTERNATIONAL CRIMINAL LAW Edited by

Kevin Jon Heller, Frédéric Mégret, Sarah MH Nouwen, Jens David Ohlin, and

Darryl Robinson

1

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1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © the several contributors 2020 The moral rights of the authors have been asserted First Edition published in 2020 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2020932403 ISBN 978–0–19–882520–3 Printed and bound by CPI Group (UK) Ltd, Croydon, cr0 4yy Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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Acknowledgements

When it comes to acknowledging key people in the creation of the book, we should start at the beginning. Merel Alstein, OUP’s law editor, came up with the idea for this Handbook, persuaded us that we could make it interesting, and then handed it over to us. From beginning to end, she struck the perfect balance between encouragement and laissez faire. Thanks to Frédéric Mégret’s Canada Research Chair, we were all able to convene in Montreal in May 2014 to develop the core ideas around which to organize the book and together dream up our ideal list of contributors. The contributors then produced inspiring first drafts and tolerated line-by-line comments from five editors who did not always (or even usually) speak with the same voice. We thank them for their ideas, for their constructive engagement with all our suggestions—often not just once, but also on second and third drafts—and for the beautiful chapters that together make this book. And we thank them most of all for their patience: it has taken several years to get all of the chapters together and, as always with edited collections, the first contributors (led by Harmen van der Wilt) had to wait for the last. The fact that the chapters eventually ended up in a Handbook with a (we hope) somewhat consistent style is largely thanks to Frédéric Bertrand, who has patiently and rigorously copyedited all the chapters, generously funded by Frédéric Mégret’s Canadian Partnership for International Justice (SSHRC) grant. February 2020

Kevin Jon Heller Frédéric Mégret Sarah MH Nouwen Jens David Ohlin Darryl Robinson

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Table of Contents

Table of Casesxi Table of Primary Legislationxxi Table of International Treaties and Conventionsxxv List of Contributorsxxix

Introduction1

SE C T ION I   AC TOR S 1. An Empirical Analysis of International Criminal Law: The Perception and Experience of the Accused

21

Marie-Sophie Devresse and Damien Scalia

2. Defence Perspectives on Fairness and Efficiency at the International Criminal Court

39

Jenia Iontcheva Turner

3. Neither Here Nor There: The Position of the Defence in International Criminal Tribunals

67

Dov Jacobs

4. The Creation of an Ad Hoc Elite and the Value of International Criminal Law Expertise on a Global Market

89

Mikkel Jarle Christensen

5. Teachings of Publicists and the Reinvention of the Sources Doctrine in International Criminal Law

106

Neha Jain

SE C T ION I I   SPAC E S 6. Legitimacy in War and Punishment: The Security Council and the ICC Tom Dannenbaum

129

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viii   table of contents

7. Africa and International Criminal Law

154

Christopher Gevers

8. On Regional Criminal Courts as Representatives of Political Communities: The Special Case of the African Criminal Court

194

Harmen van der Wilt

SE C T ION I I I   R AT IONA L E S 9. Taking Internationalism Seriously: Why International Criminal Law Matters215 Miriam Gur-Arye and Alon Harel

1 0. Impunities

238

Mark A. Drumbl

11. Courting Failure: When Are International Criminal Courts Likely to be Believed by Local Audiences?

261

Marko Milanović

SE C T ION I V   C R I M E S 12. ‘What is an International Crime?’

293

Alexander K.A. Greenawalt

13. A Theory of International Crimes: Conceptual and Normative Issues

317

Alejandro Chehtman

14. From Aggression to Atrocity: Rethinking the History of International Criminal Law

341

Samuel Moyn

15. Enslavement as a Crime against Humanity: Some Doctrinal, Historical, and Theoretical Considerations

361

Edwin Bikundo

SE C T ION V   M ODA L I T I E S 16. A Criminological Approach to the ICC’s Control Theory Alette Smeulers

379

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table of contents   ix

17. The Two Cultures of International Criminal Law

400

Jean d’Aspremont

18. Immunity and Impunity

423

Adil Ahmad Haque

19. Epistemological Controversies and Evaluation of Evidence in International Criminal Trials

450

Mark Klamberg

20. The Right to Truth in International Criminal Law

473

Leora Bilsky

21. From Machinery to Motivation: The Lost Legacy of Criminal Organizations Liability

494

Saira Mohamed

SE C T ION V I   NA R R AT I V E S 22. Historical Reasoning and Judicial Historiography in International Criminal Trials

519

Kim Christian Priemel

2 3. Criminal/Enemy

540

Lawrence Douglas

24. The Enemy of All Humanity

558

David Luban

25. Moving Images: Modes of Representation and Images of Victimhood in Audio-Visual Productions

583

Sofia Stolk and Wouter Werner

SE C T ION V I I   A N X I E T I E S 26. International Criminal Tribunal Backlash

601

Henry Lovat

27. The Crises and Critiques of International Criminal Justice

626

Sergey Vasiliev

28. Hangman’s Perspective: Three Genres of Critique following Eichmann652 Itamar Mann

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x   table of contents

29. Inequality of Arms Reversed? Defendants in the Battle for Political Legitimacy678 Marlies Glasius and Tim Meijers

SE C T ION V I I I   B OU N DA R I E S 30. International Criminal Law and the Subordination of Emancipation: The Question of Legal Hierarchy in Transitional Justice

699

Laurel E. Fletcher

31. International Criminal Justice and Humanitarianism

719

Sara Kendall and Sarah MH Nouwen

32. International Criminal Law and Culture

748

Cheah W.L.

33. The Core Crimes of International Criminal Law

768

Christine Schwöbel-Patel

3 4. Transnational Crimes

791

Douglas Guilfoyle

35. The Unity of International Criminal Law: A Socio-Legal View

811

Frédéric Mégret

SE C T ION I X   F U T U R E ( S ) 36. International Criminal Law: The Next Hundred Years

841

Gerry Simpson

Index

851

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Table of Cases

I N TER NAT IONA L CR I M I NA L COU RTS A N D T R I BU NA L S International Court of Justice (ICJ) Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, [2007] ICJ Rep 582 ��������������������������������������������������������������������������� 113 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, [2007] ICJ Rep 43������������������������������������������������������������������������������������������������������������������������������������� 113 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, [2002] ICJ Rep 3, 26 (Arrest Warrant Case)��������������������������������������������431, 434–6 Democratic Republic of Congo v Belgium, Judgment of 14 February 2002, [2002] ICJ Rep 3������������������������������������������������������������������������������������������������������������������������������������������325 Fisheries (United Kingdom v Norway), Merits, Judgment, [1951] ICJ Rep 145�����������������������123 Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, [1997] ICJ Rep 7��������������� 113 Germany v Italy: (Greece Intervening), Judgment, [2012] ICJ Rep 99������������������������������������438 Lotus Case (France v Turkey) (1927), PCIJ (Ser A) No 10 ��������������������������������������������������������803 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, [2010] ICJ Rep 14������������������������������������������������������������������������������������������������������������������������������������� 113 South west Africa Cases, Second Phase, Judgment, [1966] ICJ Rep 6 ������������������������������������ 169 Temple of Preah Vihear (Cambodia v Thailand), Provisional Measures Order of 18 July 2011, Separate Opinion of Judge Trindade, [2011] ICJ Rep 566, Sections II–X �����������123 International Criminal Court (ICC) Prosecutor v Abu Garda (Corrigendum of the Decision on the Confirmation of Charges) ICC-02/05–02/09, (8 February 2010) (Pre-Trial Chamber I)�������������������������������116 Prosecutor v Ahmad al Faqi Al Mahdi (Judgment and Sentence) ICC-01/12–01/15, (27 September 2016) (Trial Chamber VIII) ����������������������������������������������������������������������������789 Prosecutor v Al Bashir (Judgment in the Jordan Referral re Al-Bashir Appeal), ICC-02/05–01/09, (6 May 2019) (Appeals Chamber)����������������������������������������������������130, 420 Prosecutor v Al Mahdi (Judgment and Sentence) ICC-01/12–01/15–171 (27 September 2016) (Trial Chamber VIII) ���������������������������������������������������������������������� 48, 335 Prosecutor v Banda and Jerbo (Corrigendum of the Decision on the Confirmation of Charges) ICC-02/05–03/09, (7 March 2011) �����������������������������������������������������������������������116 Prosecutor v Bemba Gombo – see below in chronological order Prosecutor v Bemba (Decision on the Evidence Disclosure System and Setting a Timetable for Disclosure Between the Parties) ICC-01/05–01/08–55 (31 July 2008) (Pre-Trial Chamber III)���������������������������������������������������������������������������������������� 58, 61, 65 Prosecutor v Jean-Pierre Bemba Gombo (Decision on the Disclosure of Evidence by the Defence) ICC-01/05–01/08–31 (5 December 2008) (Pre-Trial Chamber III) ������������������������������������������������������������������������������������������������������������� 40

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xii   table of cases Prosecutor v Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC-01/05–01/08–424 (15 June 2009)( Pre-Trial Chamber II) ���������������������� 57, 420 Prosecutor v Bemba Gombo (Decision on Directions on the Conduct of Proceedings) ICC-01/05–01/08–1023, (19 November 2010) (Trial Chamber III)����������������79 Prosecutor v Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC-01/05-01/08-424, (15 June 2009)�����������������������������������������������������������������������335 Prosecutor v Bemba (Judgment), ICC-01/05–01/08, (21 March 2016) (ICC, Trials Chamber) �������������������������������������������������������������������������������������������������������������������� 244, 335, 462 Prosecutor v Jean-Pierre Bemba Gombo (Observations Relevant to Reparations) ICC-01/05-01/08-3457, (13 October 2016) (Trial Chamber III)��������������������������������������������746 Prosecutor v Bemba Gombo (Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo Against Trial Chamber III’s ‘Judgment Pursuant to Article 74 of the Statute’) ICC-01/05-01/08-3636-Red, (8 June 2018) (Appeals Chamber)���������������������������������������������������������������������������������������������������� 335, 462, 487 Prosecutor v Bemba Gombo (Judgment on theAappeal of Mr Jean-Pierre Bemba Gombo Against Trial Chamber III’s ‘Judgment Pursuant to Article 74 of the Statute’), Concurring Separate Opinion of Judge Eboe-Osuji, ICC-01/05–01/083636-Anx3, (14 June 2018)������������������������������������������������������������������������������������������������������������77 Prosecutor v Chui [2012] ICC 18 December 2012 ����������������������������������������������380, 392, 394, 398 Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the Confirmation of Charges Pursuant to Article 61(7) (a) and (b) of the Rome Statute, Dissenting Opinion by Judge Hans-Peter Kaul) ICC–01/09–02/11, (23 January 2012) (Pre-Trial Chamber II)���������������������������������������� 313, 420 Prosecutor v Gbagbo and Blé Goudé, (Version publique expurgée des ‘observations de la Défense présentées à la suite de l’ordonnance de la Chambre’ on the further conduct of the proceedings » du 9 février 2018 (ICC-02/11–01/15–1124) » (ICC-02/11–01/15-1157-Conf)), ICC-02/11–01/15, (2 May 2018) (Trial Chamber I)�������������� 81 Katanga – see below in chronological order Prosecutor v Katanga and Ngudjolo (Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules), ICC-01/04–01/07, (25 April 2008) ���������������������� 451 Prosecutor v Katanga & Chui (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case) ICC-01/04– 01/07–474 (13 May 2008) (Pre-Trial Chamber I)�������������������������������������������������������������������� 481 Prosecutor v Katanga and Ngudjolo Chui (Decision on the Confirmation of Charges) ICC-01/04–01/07, (30 September 2008)�����������������������115, 117, 118, 120, 395, 417, 506 Prosecutor v Katanga (Defence for Germain Katanga’s Additional Observations on Victims’ Participation and scope thereof) Defence, ICC-01/04–01/07–1618 (10 November 2009) ������������������������������������������������������������������������������������������������������������������489 Prosecutor v Katanga & Ngudjolo, (Decision on the Modalities of Victim Participation at Trial) ICC-01/04–01/07-1788-tENG (22 January 2010) (Trial Chamber II) ����������������������������������������������������������������������������������������������������������������������� 483, 490 Prosecutor v Katanga & Chui (Transcript of Oral Order) ICC-01/04–01/07-T-341ENG (18 June 2012) (Trial Chamber II) ������������������������������������������������������������������������������ 51, 80

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table of cases   xiii Prosecutor v Katanga & Chui (Decision on the Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges against the Accused Persons) ICC-01/04–01/07-3319-tENG/FRA (21 November 2012) Dissenting Opinion of Judge van den Wyngaert (Trial Chamber II)����������������������������������������������������� 486 Prosecutor v Katanga (Judgment Pursuant to article 74 of the Statute) ICC-01/04– 01/07, (7 March 2014)���������������������������������������������������������������������73, 380, 393, 418, 451, 453, 466 Prosecutor v Kenyatta (Notice of Withdrawal of the Charges Against Uhuru Muigai Kenyatta) Office of the Prosecutor, ICC-01/09–02/11–983 (5 December 2014)��������������������59 Lubanga – see below in chronological order Prosecutor v Lubanga (Decision on the Final System of Disclosure and the Establishment of a Time-Table) ICC-01/04–01/06–102 (15 May 2006) (Pre-Trial Chamber I)����������������������������������������������������������������������������������������������54, 60, 61, 392 Prosecutor v Lubanga (Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19 (2) (a) of the Statute of 3 October 2006) ICC-01/04–01/06 (OA4), (14 December 2006) (Appeals Chamber)������������������������������������������������������������������ 417 Prosecutor v Lubanga (Decision on the Confirmation of Charges) ICC-01/04– 01/06, (26 January 2007) (Pre-Trial Chamber I)������������������������������������������������������������� 115–120 Prosecutor v Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04–01/06, (29 January 2007) (ICC, Pre-Trial Chamber I)�������������������������������������� 763 Prosecutor v Lubanga (Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/105/06 Concerning the ‘Directions and Decision of the Appeals Chamber’ of 2 February 2007)) ICC-01/04–01/06–925 (13 June 2007) (Appeals Chamber)��������������������������������������������������������������������������482, 486, 505 Prosecutor v Lubanga (Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial) ICC-01/04–01/06, (30 November 2007)�������������������������������������������������������������������������������������������������������������������������� 417 Prosecutor v Lubanga (Decision on Victims’ Participation) Trial Chamber I, ICC-01/04-01/06-1119 (18 January 2008) ��������������������������������������������������������������������������������487 Prosecutor v Thomas Lubanga Dyilo (Decision on the Consequences of Nondisclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements) ICC-01/04–01/06 (13 June 2008) (Trial Chamber I)����������������������������������������������������������������49 Prosecutor v Lubanga Dyilo (Judgment on the appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008) ICC-01/04-01/06-1432 (11 July 2008) Partly Dissenting opinion of Judge GM Pikis (Appeals Chamber)����������������������������������������������������������������������������������������483 Prosecutor v Lubanga (Transcript) ICC-01/04–01/06-T-107 (26 January 2009) 34–35 (Trial Chamber I) ������������������������������������������������������������������������������������������������������������584 Prosecutor v Lubanga Dyilo (Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court), ICC-01/04-01/06-1891-tENG (22 May 2009) (Trial Chamber I)����������������������������������������������������������������������������������������������������������������������������������484 Prosecutor v Thomas Lubanga Dyilo (Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009���������������������74, 484 Prosecutor v Lubanga (Decision Reviewing the Registry’s Decision on Legal Assistance for Mr Lubanga), ICC-01/04–01/06–2800 (30 August 2011) (Trial Chamber I)�������������������51

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xiv   table of cases Prosecutor v Lubanga (Judgment Pursuant to Article 74 of the Statute, Separate Opinion of Judge Fulford) ICC-01/04–01/06, (14 March 2012) ����������������������������������������������������������������������������120, 243, 331, 398, 419, 452, 759 Prosecutor v Lubanga [2014] ICC 14 March 2014����������������������������������������������������������������������380 Prosecutor v Ngudjolo Chui (Judgment Pursuant to Article 74 of the Statute, Concurring Opinion of Judge Christine Van den Wyngaert) ICC-01/04–02/12, (8 December 2012) (Trial Chamber II)�������������������������������������������������������������119, 120, 419, 420 Prosecutor v Ntaganda (Reasons for Review of Registrar’s Decision on Defence Resources) ICC-01/04–02/06–389 (29 October 2014) (Trial Chamber VI)���������������������������51 Prosecutor v Omar Hassan Ahmad Al Bashir (Judgment on the Appeal of the Prosecutor Against the ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’) ICC-02/05–01/09, (3 February 2010) (ICC-02/05–01/09, (3 February 2010) (Appeals Chamber)������������������������������������������������� 466 Prosecutor v Ongwen (Judgment on the appeal of the Prosecutor Against the decision of Pre-Trial Chamber II entitled ‘Decision Setting the Regime for Evidence Disclosure and Other Related Matters’) ICC-02/04–01/15–251 (17 June 2015) (Appeals Chamber)������������������������������������������������������������������������������������������������������������54 Ruto - see below in chronological order Prosecutor v Ruto et al (Decision Setting the Regime for Evidence Disclosure and Other Related Matters) ICC-01/09–01/11–44 (06 April 2011) (Pre-Trial Chamber II) ����������������������������������������������������������������������������������������������������������������������������������54 Prosecutor v Ruto, Kosgey and Sang (Decision of the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–01/11, (23 January 2012) (Pre-Trial Chamber II)���������������������������������������������������������������� 116, 124, 331, 418 Prosecutor v Ruto and Sang (Transcript of Opening Statement) ICC-01/09– 01/11-T-27 (10 September 2013) (Trial Chamber V)����������������������������������������������������������������������������������584 Prosecutor v Ruto (Appeals Judgment on Prosecutor’s Application for Witness Summonses and Request for State Party Cooperation) ICC-01/09–01/11–1598, (2014)���������������������������������������������������������������������������������������������������������������������������������������������152 Prosecutor v Ruto & Sang (Public Redacted Version of: Decision on Defence Applications for Judgments of Acquittal) ICC-01/09–01/11 (5 April 2016) (Trial Chamber V) ��������������������������������������������������������������������������������������59, 488 Prosecutor v William Samoei Ruto and Joshua Arap Sang (Decision on the Requests Regarding Reparations) ICC-01/09–01/11–2038 (1 July 2016) (Trial Chamber V) ��������������������������������������������������������������������������������������������������������������������������������488 Prosecutor v Saif Al-Islam Gadaffi & Abdullah Al-Senussi (Decision on the Admissibility of the Case Against Abdullah Al-Senussi) ICC-01/11–01/11, (11 October 2013) (Pre-Trial Chamber I)������������������������������������������������������������������������60, 146, 305 East Timorese Special Panel for Serious Crimes (SPSC) Prosecutor v Carlos Soares Carmona (Judgment) Case No.03 C.G.2000, (8 March 2001–25 April 2001) (UN-ETTA Dist. Ct. Dili, SPSC, Trial Chamber) ������������������������������765

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table of cases   xv International Military Tribunal (Nuremberg) Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg 14 November 1945–1 October 1948, vol II (International Military Tribunal 1947)����������������������136, 142, 143, 401, 410, 494–515, 578, 779 Special Tribunal for Lebanon (STL) Prosecutor v Ayyash and others (Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging) STL-11–01/I, (16 February 2011)��������������������������������������������������������������������������������������������69, 73 International Criminal Tribunal for Rwanda (ICTR) Prosecutor v Akayesu (Judgment) ICTR- 96-4-T, (2 September 1998) (Trial Chamber I)�������������������������������������������������������������������������������������������������������������������������� 413, 484 Prosecutor v Akayesu (Judgment) ICTR-96-4-A, (1 June 2001)�����������������������������������������������331 Prosecutor v Gacumbitsi (Judgment) ICTR-2001-64-A, (7 July 2006) (Separate Opinion of Judge Schomburg) (Appeals Chamber)���������������������������������������������������������������118 Prosecutor v Bagaragaza (Decision on Rule 11bis Appeal) ICTR-05-86-AR11bis, (30 August 2006) (Appeals Chamber))������������������������������������������������������������������������������������229 Prosecutor v Gacumbitsi (Judgment) ICTR-2001-64-A, (7 July 2006) (Separate Opinion of Judge Schomburg) (Appeals Chamber) ���������������������������������������������118 Prosecutor v Nchamihigo (Judgment), ICTR-2001-63-A, (18 March 2010)���������������������������� 452 Prosecutor v Ngirabatware (Judgement), ICTR-99–54, (20 December 2012)������������������������ 452 Prosecutor v Nsengimana (Judgment), ICTR-01-69-T, (17 November 2009) (Trial Chamber)������������������������������������������������������������������������������������������������������������������������� 466 Prosecutor v Nyiramasuhuko and others (Decision in the Matter of Proceedings under Rule 15bis(D)) ICTR-98-42-T, (15 July 2003) (Trial Chamber II)������������������������������� 80 Prosecutor v Rutaganda (Judgment and Sentence), ICTR-96–3, (6 December 1999) (Trial Chamber I)�������������������������������������������������������������������������������������������������������������������������132 Special Court for Sierra Leone (SCSL) Prosecutor v Charles Ghankay Taylor (Trial Transcript) SCSL-2003-01-PT, (13 July 2009) 24294 (Trial Chamber II ����������������������������������������������������������������������������������������682, 691 Prosecutor v Issa Hassan Sesay, Morris Kallon, Augustine Gbao (Judgment) SCSL-04-15-T, (2 March 2009) (Trial Chamber)���������������������������������������������������������������������119 Prosecutor v Kallon and Kamara (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty) SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), (13 March 2004)���������������������������������������������������������������������������������������������������������������������������������321 Prosecutor v Kondewa (Allieu) (Judgment) SCSL-04-14-T, (2 August 2007) (Trial Chamber I)������������������������������������������������������������������������������������������������������������������������764 Prosecutor v Monina Fofana and Allieu Kondewa (Judgment) SCSL-04-14-T, (2 August 2007) (Trial Chamber I)������������������������������������������������������������������������������������������764 Prosecutor v Norman and others (Decision on Presentation of Witness Testimony on Moyamba Crime Base) SCSL-04-14-T, (1 March 2005) (Trial Chamber)��������������������������������������������������������������������������������������������������������������������������� 80 Prosecutor v Sam Hinga Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)) SCSL-2004-14-AR72(E), (31 May 2004) (Appeals Chamber)�������������������������������������������������������������������������������������������������������������������� 763

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xvi   table of cases International Criminal Tribunal for the Former Yugoslavia (ICTR) Prosecutor v Aleksovski (Judgment) IT-95–14/1 (24 March 2000) (Appeals Chamber) ��������������������������������������������������������������������������������������������������������������������������� 222, 409 Prosecutor v Blaškić (Judgment), IT-95-14-A, (29 July 2004) (Appeals Chamber) �������������� 134 Prosecutor v Brđanin (Judgment) IT-99-36-T, (1 September 2004) (Trial Chamber II)���������������������������������������������������������������������������������������������������������������������� 337 Prosecutor v Delalić et al (Judgment), IT-96-21-A, (20 February 2001) (Appeals Chamber) �������������������������������������������������������������������������������������������������������������������������������������132 Prosecutor v Erdemović (Judgment) IT-96-22-A (7 October 1997), Joint Separate Opinion of Judge McDonald and Judge Vohrah (ICTY, Appeals Chamber) �������������������������������������������������������� 223, 230, 303, 304, 309, 388, 413 Prosecutor v Furundžija (Judgment) IT-95–17/1-T, (10 December 1998) (Trial Chamber)�����������������������������������������������������������������������������������������������������������301, 303, 413 Prosecutor v Galić (Separate and Partially Dissenting Opinion of Judge Nieto Navia), IT-98-29-T, (5 December 2003) (Trial Chamber) ����������������������������������������������������463 Prosecutor v Gotovina et al (Judgment), IT-06–90, (15 April 2011) (Trial Chamber) ��������� 466 Prosecutor v Hadžihasanović et al. (Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility) IT-01-47-AR72, (16 July 2003) (Appeals Chamber)��������������������������������������������������������������������������������������������������������� 409 Prosecutor v Hadžihasanović and Kubura (Judgment) IT-01-47-T, (15 March 2006) ���������� 412 Prosecutor v Haradinaj et al (Judgment) IT-04-84-T, (3 April 2008) (Trial Chamber I)�������������������������������������������������������������������������������������������������������������������������� 33 Prosecutor v Jelisić (Judgment) IT-95-10-T, (14 December 1999) (Trial Chamber)������������������������������������������������������������������������������������������������������������������416, 509 Prosecutor v Karadžić (Radovan) IT-95–5/18 (Trial Transcript) IT-95–5/18, (29 August 2008: 1 March 2010)��������������������������������������������������������������� 681, 683, 684, 693, 694 Prosecutor v Krajišnik (Judgment), IT-00-39-A, (17 March 2009) (Appeals Chamber.)������������������������������������������������������������������������������������������������������������������������������������ 452 Prosecutor v Krnojelac (Judgment) IT-97–25, (15 March 2002) (Trial Chamber II) ������������369 Prosecutor v Kunarac et al. (Judgment) IT-96-23-T & IT-96–21/1-T, (22 February 2001) (Trial Chamber)����������������������������������������������������������������������������������������301, 369, 370, 806 Prosecutor v Kupreškić and others (Judgment) IT-95-16-T, (14 January 2000) (Trial Chamber)������������������������������������������������������������������������������������������������������������� 71, 411, 416 Prosecutor v Kupreškić et al. (Judgment), IT-95-16-A, (23 October 2001) (Appeals Chamber)�����������������������������������������������������������������������������������������������������451, 452, 455 Prosecutor v Martić (Judgment), IT-95-11-A, (8 October 2008) (Appeals Chamber)���������� 452 Prosecutor v Milosevic (Dissenting Opinion of Judge David Hunt) IT-0254-AR73.4 (21 October 2003) (Appeals Chamber) ����������������������������������������������������������� 40, 44 Prosecutor v Milošević (Reasons for Decision on Assignment of Defence Counsel) IT-02-54-T, (22 September 2004) (Trial Chamber)���������������������������������������������������������������� 759 Prosecutor v Milošević (Decision on the Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel) IT-02-54-AR73.7, (1 November 2004) (Appeals Chamber)���������������������������������������������������������������������������������� 759 Prosecutor v Milutinović et al. (Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise) IT-99-37-AR72, (21 May 2003) (Appeals Chamber)������������������������������������������������������������������������������������������������� 409, 505 Prosecutor v Mrkšić et al. (Judgment), IT-95–13/l-A, (5 May 2009) (Appeals Chamber.)����������������������������������������������������������������������������������������������������������������������������������� 466

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table of cases   xvii Prosecutor v Mucić and others (Judgment) IT-96-21-T, (16 November 1998) (Trial Chamber)��������������������������������������������������������������������������������������������������������������������75, 806 Prosecutor v Muthaura, Kenyatta and Ali (Decision of the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–02/11, (23 January 2012) (Pre-Trial Chamber II)�������������������������������������������������������������������������� 115, 117 Prosecutor v Naletilić and Martinović (Judgment) IT-98–34, (31 March 2003) (Trial Chamber)��������������������������������������������������������������������������������������������������������������������������370 Prosecutor v Simić et al. (Decision on the Prosecutor’s Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness) IT-95-9-PT, (27 July 1999) (Trial Chamber)�������������������������������������������������������������������������������������������������������������������������� 412 Prosecutor v Simić et al. (Judgement) IT-95-9-T, (17 October 2003) (Trial Chamber II)���������������������������������������������������������������������������������������������������������������������� 505 Prosecutor v Stakić (Trial Judgment) IT-97-24-T, (31 July 2003) (Trial Chamber II)��������������������������������������������������������������������������������������������������������������� 118, 505 Prosecutor v Tadić (Duško) (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-4–1, (2 October 1995) (Appeals Chamber)���������������������������������������������������������������������� 71, 72, 75, 137, 141, 297, 303, 411 Prosecutor v Dusko Tadić (Opinion and Judgment), IT-94–1, (7 May 1997) (Trial Chamber)�������������������������������������������������������������������������������������������������������������������451, 455 Prosecutor v Tadić (Judgment) IT-94-1-A, (15 July 1999) (Appeals Chamber.)��������������������������������������������������������������������������������������������� 115, 298, 309, 412 Prosecutor v Vasiljević (Judgment) IT-98-32-T, (29 November 2002) (Trial Chamber II)��������������������������������������������������������������������������������������������������������������������� 409 Prosecutor v Zoran Kupreškić et al. (Judgment) IT-95-16-T, (14 January 2000)���������������������119 OT H ER COU RTS A N D J U R ISDIC T IONS European Court of Justice (ECJ) Advocaten voor de Wereld VZW v Leden van de Ministerraad (C-303/05) [2007] ECR I-03633��������������������������������������������������������������������������������������������������������������������203 Commission v Hellenic Republic [1989] ECR 2965 (68/88)����������������������������������������������������� 204 Israel Academic Center et al v Minister of Finance translation [2009] HCJ 2605/05 (Israel Sup Ct)������������������������������������������������������������������������������������������������������������������������������ 233 A-G of the Government of Israel v Eichmann (1962), Crim Appeal 336/61, 36 Intl L Rep 277, 298–300 (Israel Sup Ct) Eichmann �������������������139, 226, 227, 326, 569, 570, 652–677 State of Israel v Demjanjuk, Crim case 373/86 (District Ct of Jerusalem) (April 1988), revised Crim Appeal 347/88 (Israel Sup Ct, 29 July 1993)������������������������������������������226 South Africa Azanian Peoples’ Organization (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 672 (CC) (25 July 1996)������������������������������������� 185, 476 Democratic Alliance v Minister of International Relations and Cooperation and Others (83145/2016) [2017] ZAGPPHC 53; 2017 (3) SA 212 (GP); [2017] 2 All SA 123 (GP); 2017 (1) SACR 623 (GP)�������������������������������������������������������������������������������������������� 129 S v Basson 2005 (1) SA 171 (CC)�����������������������������������������������������������������������������������������������������185 S v Basson 2007 (3) SA 582 (CC) ���������������������������������������������������������������������������������������������������185

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xviii   table of cases Spain Public Prosecutor’s Office, de Lois (Graciela) (intervening) and ors (intervening) v Manzorro (Adolfo), Final Appeal Judgment, Case No 16/2005, Aranzadi JUR 2005/132318, ILDC 136 (ES 2005), 19th April 2005, Criminal Chamber������������������������������ 419 Sweden Public Prosecutor (on behalf of Behram (Hussein) and ors) v Arklöf (Jackie), Judgment, Case No B 4084–04, ILDC 633 (SE 2006), 18th December 2006, Sweden������������������������������������������������������������������������������������������������������������������������������������������ 419 United Kingdom Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet (No 3) [1999] UKHL 17, [1999] 2 WLR 827 ����������������������������������� 226, 571, 800, 805 R v Smith [2000] UKHL 49, [2001] 1 AC 146, [2000] 4 All ER 289, [2000] 3 WLR 654��������������������������������������������������������������������������������������������������������������������������������������454 Somerset v Stewart (1772), 98 ER 499 (KB) �������������������������������������������������������������������������������� 372 United States of America Filártiga v Peña-Irala, 630 F2d 876 (2d Cir. 1980)������������������������������������������������������ 362, 571, 804 Schooner Exchange v McFaddon, 11 US 116 (1812) ��������������������������������������������������������������������445 United States v Furlong, 18 US (5 Wheat) 184 (1820)������������������������������������������������������������������ 334 US v von Leeb et al (High Command Case), US Military Tribunal����������������������������������� 804–5 United States v Smith, 18 US (5 Wheat) 153 (1820)����������������������������������������������������������������������226 United States v Yunis, 924 F2d 1086 (DC Cir 1991)�������������������������������������������������������������������� 327 H UM A N R IGH TS COU RTS European Court of Human Rights Aksoy v Turkey, App no 21987/93, 18 December 1996����������������������������������������������������������������475 Al Nashiri v Poland, App no 28761/11, 24 July 2014��������������������������������������������������������������������475 Association ‘21 December 1989’ and others v Romania, App no 33810/07, 24 May 2011 ��������������������������������������������������������������������������������������������������������������������������������������475 El-Masri v the Former Yugoslav Republic of Macedonia, App no 39630/09, 13 December 2012������������������������������������������������������������������������������������������������������������������������475 Hugh Jordan v UK������������������������������������������������������������������������������������������������������������������ 481, 485 Husayn (Abu Zubaydah) v Poland, App no 7511/13, 24 July 2014 ��������������������������������������������475 Kurt v Turkey, App no 24276/94, 25 May 1998����������������������������������������������������������������������������475 MC v Bulgaria (2003), App no 39272/98, (2005) 40 EHRR 20������������������������������������������299–301 Nasr and Ghali v Italy App no 44883/09, 23 February 2016)����������������������������������������������������475 Osman and Osman v United Kingdom (1998), App no 23452/94, Case No 87/1997/871/1083, ECHR 245 1998-VIII, [1998] ECHR 101, (2000) 29 EHRR 245��������������299 Inter-America Court of Human Rights 19 Merchants v Colombia (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 109 (5 July 2004)��������������������������������������������������������������������������476 Almohacid-Arellano et al v Chile ���������������������������������������������������������������������������������������� 481, 485

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table of cases   xix Bámaca Velásquez v Guatemala (Merits) Inter-American Court of Human Rights Series C No 70 (25 November 2000)������������������������������������������������������������������������476, 481, 485 Barrios Altos v Peru (2001), Judgment of March 14, 2001 (Merits), Inter-Am Ct HR (Ser C) No 75 ��������������������������������������������������������������������������������������������������������������� 317, 481, 485 Bueno Alves v Argentina, Judgment of 11 May 2007 (Merits, Reparations and Costs) Inter-Am Ct HR (Ser C) No 164 �����������������������������������������������������������������������������������321 Bulacio v Argentina, Judgment of 18 September 2003 (Merits, Reparations and Costs), Inter-Am Ct HR (Ser C) No. 100���������������������������������������������������������������������������������318 Goiburú et al v Paraguay (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 153 (22 September 2006)������������������������������������������������������������476 González Medina and Family v Dominican Republic (Preliminary Objections, Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 240 (27 February 2012)��������������������������������������������������������������������������������������������������������476 Gelman v Uruguay (2011), Judgment of 24 February 2011 (Merits and Reparations), Inter-Am Ct HR (Ser C) No. 22�������������������������������������������������������������������������������������������������317 Ignacio Ellacuría et al (Case 10.488) (22 December 1999) IACHR, Report No. 136/99��������������������������������������������������������������������������������������������������������������������������������������������476 La Cantuta v Perú (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 162 (29 November 2006)������������������������������������������������������������476 Mapiripán Massacre v Colombia��������������������������������������������������������������������������������������������������485 Masacre de Mapmpân v Colombia ���������������������������������������������������������������������������������������������� 481 Velasquez Rodriguez v Honduras (1988), Judgment, Inter-Am Ct HR (Ser C) No 4������������299

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Table of Primary Legislation

L EGISL AT ION OF I N TER NAT IONA L CR I M I NA L COU RTS A N D TR IBU NA L S Statute of International Court of Justice Art 38�������������������������������������������������������� 108 Art 38(1)�������������������������������������108, 109, 114 Art 38(1)(d)���������������������������������������109, 110 International Criminal Court Rome Statute 1998 ���������53, 69, 83, 107, 150,  230, 248, 259, 360, 362, 405, 495, 534, 706, 714, 760 Preamble��������������������������180, 181, 220, 222, 224, 243, 437 Art 1����������������������������������������������������������220 Art 1(b) ����������������������������������������������������224 Art 1(c)������������������������������������������������������ 225 Art 3����������������������������������������������������������368 Art 4(1) ����������������������������������������������������224 Art 5������������������������������������������ 222, 768, 773 Art 5(1)������������������������������������������������������224 Art 6�����������������������������73, 223, 298, 302, 485 Arts 6–8�����������������������������������������������������381 Art 7���������������������������� 73, 124, 223, 297, 298, 302, 331, 369, 416, 485 Art 7(1)�������������������������������������� 331, 368, 420 Art 7(1)(c)����������������������������������������376, 799 Art 7(1)(f)������������������������������������������������799 Art 7(1)(g)������������������������������������������������ 376 Art 7(1)(k)������������������������������������������������420 Art 7(2)(a)�����������������������������������������331, 805 Art 8��������������������� 73, 297, 298, 302, 307, 485 Art 8(2)(a)(ii)��������������������������������� 799, 806 Art 8(2)(b)(xxii)������������������������������376, 799 Art 8(2)(c)(i)����������������������������������� 799, 806 Art 8(2)(e)������������������������������������������������ 297 Art 8(2)(e)(vi)����������������������������������376, 799 Art 8(2)(e)(vii)����������������������������������������420 Art 8bis(1)���������������������������������������� 307, 804

Art 10��������������������������������������������������������304 Art 12�������������������������������������������������������� 144 Art 12(2)�����������������������������������������������������138 Art 12(3)���������������������������������������������144, 152 Art 13(a)���������������������������������������������������� 144 Art 13(b)�������������������������������������������� 140, 188 Art 13(c)���������������������������������������������������� 144 Art 14���������������������������������������������������������138 Art 15����������������������������������������� 124, 138, 801 Art 16�������������������������������������������������������� 188 Art 17���������������������������������� 78, 220, 225, 755 Art 17(1)����������������������������������������������������304 Art 17(1)(d)��������������������������������������� 315, 336 Art 21���������������������������107, 114, 416, 417, 418 Art 21(a)����������������������������������������������������224 Art 21(1)����������������������������������������������114, 125 Art 21(1)(c) ���������������������������������������������� 120 Art 21(2)��������������������������������������������� 114, 124 Art 22���������������������������������������� 125, 408, 419 Art 22(1)����������������������������������������������������420 Art 22(2) ������������������������������������������120, 420 Art 23������������������������������������������������������� 408 Art 25�������������������� 72, 73, 380, 392, 394, 485 Art 25(3)������������������������������119, 391, 392, 394 Art 25(3)(a)����������������������������������������������� 117 Art 25(3)(c)���������������������������������������������� 303 Art 25(3)(d)��������������������������������������� 115, 303 Art 25(3)(f)���������������������������������������������� 302 Art 27��������������������������������������������������������� 211 Art 27(2) �������������������������������������������������� 326 Art 28�������������������������������������������������� 73, 485 Art 29�������������������������������������������������321, 326 Art 30(3) �������������������������������������������������� 302 Art 31(1)(d)���������������������������������������������� 303 Art 33(2)��������������������������������������������������� 383 Art 34���������������������������������������������������������� 81 Art 53(1)(c) ����������������������������������������������� 151 Art 53(2)(c)����������������������������������������������� 151 Art 53(3)(b)����������������������������������������������� 151

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xxii   table of primary legislation Art 54(3)(e)������������������������������������������������49 Art 61(7)(a)������������������������ 115, 331, 418, 420 Art 61(7)(b)������������������������ 115, 331, 418, 420 Art 61(9) ���������������������������������������������������� 73 Art 67����������������������������������������������������������78 Art 67(1)(b)������������������������������������������������49 Art 67(2) ���������������������������������������������������451 Art 68�������������������������������������������������������� 491 Art 68(3) ����������������������� 63, 78, 79, 480, 482 Art 68(5) ���������������������������������������������������� 55 Art 69�������������������������������������������������������� 491 Art 69(3)������������������������� 483, 485–488, 489 Art 74������������������������������������������73, 392, 420 Art 75�������������������������������������������������������� 714 Art 75(2) ��������������������������������������������62, 488 Art 79�������������������������������������������������������� 714 Art 82(1)(d)����������������������������������������������� 60 Arts 86–111������������������������������������������������152 Art 89�������������������������������������������������������� 210 Art 93�������������������������������������������������������� 210 Art 98���������������������������������������������������������143 Art 98(1) �������������������������������������������������� 140 Regulations of the Court 2004 reg 55 �����������������������57, 73, 74, 483, 484, 485 reg 55(1)����������������������������������������������������484 reg 55(2)���������������������������������������������� 74, 483 reg 55(2)������������������������������������������������������ 61 reg 77(4)(b)��������������������������������������766, 767 reg 83(3)�������������������������������������������������������51 reg 83(4)�������������������������������������������������������51 Rules of Procedure and Evidence 2013 (RPE) r 77�������������������������������������������������������������451 r 81(2)–(5)�������������������������������������������������� 55 r 82�������������������������������������������������������������� 55 r 20�������������������������������������������������������������� 81 r 69����������������������������������������������������������� 480 r 73(4)��������������������������������������������������������724 r 73(6)������������������������������������������������������� 725 Statute of the Special Tribunal for Lebanon 2007 (STL) Art 17����������������������������������������������������������78 Statute of the Permanent Court of International Justice (PCIJ)�������������� 109 Statute of the International Criminal Tribunal for Rwanda (ICTR)������������������������������������113, 297, 495

Art 1���������������������������������������������������������� 225 Art 3���������������������������������������������������������� 302 Art 6(1) ������������������������������������������������������26 Art 6(2)���������������������������������������������������� 303 Art 6(3) ���������������������������������������������� 26, 303 Art 6(4)���������������������������������������������������� 303 Art 8(2) ���������������������������������������������������� 225 Art 12(2)�����������������������������������������������������136 Statute of the Special Court for Sierra Leone (SCSL) Art 1(2)������������������������������������������������������ 142 Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY)������� 113, 369, 495, 503 Art 3����������������������������������������������������������369 Art 5������������������������������������������302, 368, 369 Art 7(1)������������������������������������������������ 26, 391 Art 7(2) ���������������������������������������������������� 303 Art 7(3) ���������������������������������������������� 26, 303 Art 7(4) ���������������������������������������������������� 303 Art 8(2) ���������������������������������������������������� 225 OT H ER COU RTS A N D J U R ISDIC T IONS Africa Statute of the African Court of Justice and Human Rights ������������������������������������ 196 Argentina Constitution Art 18�������������������������������������������������������� 326 Belgium Code of Criminal Procedure Art 342������������������������������������������������������ 455 Denmark Criminal Code s 896���������������������������������������������������������� 455 France Code de Procédure Pénale Art 353������������������������������������������������������456 Germany Criminal Procedure Code

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table of primary legislation   xxiii Art 261������������������������������������������������������ 455 Penal Code s 2����������������������������������������������������������������68 Greece Code of Criminal Procedure Art 177������������������������������������������������������ 455 Italy Code of Criminal Procedure (Codice di Procedura Penale) Art 188������������������������������������������������������ 455 Art 533������������������������������������������������������ 457 Art 533(1)��������������������������������������������������456 People’s Republic of China Criminal Procedure Law Art 53�������������������������������������������������������� 457

Art 55�������������������������������������������������������� 457 Portugal Art 177 ���������������������������������������������������������� 455 South Africa National Unity and Reconciliation Act, 34 of 1995 Preamble�������������������������������������������������� 753 Spain Code of Criminal Procedure Art 741������������������������������������������������������ 455 United States of America Restatement (Third) Foreign Relations Law of the United States § 702���������������������������������������������������������� 712

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Table of International Treaties and Conventions

African Charter on Democracy, Elections and Governance Art 23��������������������������������������������������������208 African Charter on Human and Peoples’ Rights 1981 �������������������������������������� 774 African Union Convention on Preventing and Combating Corruption 2003208 Art 4����������������������������������������������������������207 Art 6����������������������������������������������������������207 American Convention on Human Rights 1969������������������������ 774 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa 1991����������207, 208, 247 Charter of the International Military Tribunal 1945 (IMT Statute or London Charter)����������������������������296 Art 1���������������������������������������������������������� 142 Art 6�������������������������������������������������� 142, 226 Art 6(c) ���������������������������������������������������� 301 Art 7���������������������������������������������������������� 303 Art 8���������������������������������������������������������� 303 Art 9�������������������������������������������������� 499, 501 Art 10��������������������������������������������������������499 Art 12��������������������������������������������������������499 Charter of the International Tribunal for the Far East 1946 (IMTFE Charter)������������������� 296, 499 Art 1���������������������������������������������������������� 142 Art 5���������������������������������������������������������� 142 Art 5(c) ���������������������������������������������������� 302 Art 6����������������������������������������������������������499 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity 1968����������������������������������� 169, 176, 321

Covenant of the League of Nations 1919 Art 22��������������������������������������������������������160 Convention on the Prevention and Punishment of the Crime of Genocide 1948 (Genocide Convention)���������������������������� 177, 297, 328, 354, 537, 773, 796, 801, 809 Art 1��������������������������������������������297, 311, 437 Art II ����������������������������������������������� 420, 809 Art IV������������������������������������������������������� 437 Art VI����������������������������������������������� 798, 801 Art VII������������������������������������������������������ 801 Convention for the Prevention and Punishment of Terrorism 1937 Art 10��������������������������������������������������������794 Convention Relating to the Status of Refugees 1951 (Refugee Convention)�������������� 371 Convention on the Suppression and Punishment of the Crime of Apartheid 1973��������������������������������780 Convention for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf 1988������������������ 793 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988������������ 793 Convention for the Suppression of Unlawful Seizure of Aircraft 1970793 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (Torture Convention)�������������312, 773 Art 1(1)����������������������������������������������������� 806 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950������������������������408, 774 Art 2���������������������������������������������������������� 475

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xxvi   table of international treaties and conventions Art 3������������������������������������������ 300, 301, 475 Art 5�������������������������������������������������� 301, 475 Art 7���������������������������������������������������������� 301 Art 8����������������������������������������������������������300 Art 9���������������������������������������������������������� 301 Art 10�������������������������������������������������������� 475 Art 12�������������������������������������������������������� 301 Art 17�������������������������������������������������������� 301 Protocol 11����������������������������������������������� 408 Protocol 14 ��������������������������������������������� 408 European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes�������������������������������������� 176, 321 Geneva Conventions 1949��������������������������308, 436, 534, 796 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field�������������������������������������� 801 Art 49�������������������������������������������������������� 437 Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea���������������������� 801 Art 50�������������������������������������������������������� 437 Geneva Convention III relative to the Treatment of Prisoners of War���������������������������������������������� 801 Art 129������������������������������������������������������ 437 Geneva Convention IV relative to the Protection of Civilian Persons in Time of War������������������������ 308, 801 Art 146������������������������������������������������������ 437 Art 149������������������������������������������������������308 Additional Protocol I������������������������������207 Art 1(1)������������������������������������������������331 Art 47 ��������������������������������������������������207 Art 57(2)����������������������������������������������428 Art 85(1) Art 85(5)����������������������������������������������428 Additional Protocol II Art 1(1)������������������������������������������������802 Geneva Convention on the High Sea 1958�������������������������������������������� 801

Hague Convention on the Customs of War on Land 1899������������������������ 71 Inter-American Convention on Forced Disappearance of Persons 1994 (Belem do Para Convention)���������321 International Covenant on Civil and Political Rights 1966 (ICCPR)�����������301, 327, 362, 408 Art 8���������������������������������������������������372, 373 Art 16������������������������������������������������ 362, 372 International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)���������������������������������������� 362 Art 6���������������������������������������������������������� 373 Art 11(1)�������������������������������������������� 362, 370 International Convention for the Suppression of the Financing of Terrorism 1999 Art 2(1)(b)������������������������������������������������794 International Convention on the Suppression and Punishment of the Crime of Apartheid 1973 (Apartheid Convention)�������������������������176–8, 182 Art IV(b)�������������������������������������������������� 184 Art V ���������������������������������������������������������177 International Convention against the Taking of Hostages 1979���������������� 793 International Opium Convention 1912�������780 Malabo Protocol������������������������������������������494 Art 28A ����������������������������������������������������205 Art 28B ����������������������������������������������������205 Art 28D����������������������������������������������������205 Art 28E������������������������������������������������������207 Art 28G����������������������������������������������������207 Art 28H����������������������������������������������������207 Art 28H(1)(b)������������������������������������������207 Art 28I������������������������������������������������������207 Art 28L������������������������������������������������������208 Art 46A����������������������������������������������������� 211 Art 46H����������������������������������������������������209 Nuremberg Charter Art 6���������������������������������������������������������� 567 Organisation of African Unity (OAU) Convention for the Elimination of Mercenarism in Africa 1977����������207

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table of international treaties and conventions    xxvii Organisation of African Unity (OAU) Convention on the Prevention and Combating of Terrorism 1999��������������������������������������������������206 Art 1����������������������������������������������������������206 Protocol Against the Illegal Exploitation of Natural Resources (International Conference on the Great Lakes Region 2006������������������������������������208 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition 2001�������������������������� 793 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children�������������������� 793 Art 3(a) ����������������������������������������������������206 Protocol against the Smuggling of Migrants by Land, Sea and Air�������������������������������������������� 793 Single Convention on Narcotic Drugs 1961 ��������������������������������������780 Single Convention on Psychotropic Substances 1971 ������������������������������780 Slavery Convention 1926 Art 1(1)���������������������������������������������� 362, 366 Slavery Convention 1956 Art 7���������������������������������������������������������� 365 Treaty on the Functioning of the European Union Art 83��������������������������������������������������������202 Art 86�������������������������������������������������������� 203 Art 86(2)������������������������������������������203, 204 Art 86(4)��������������������������������������������������204 Treaty of Lisbon 2007 ��������������������������������202 United Nations Charter������������������������������427

Chapter VII�����������������������152, 225, 244, 309 Art 39�������������������������������������������������������� 354 Art 41�������������������������������������������������������� 140 Art 51�������������������������������������������������������� 354 United Nations Covenants on Human Rights 1966������������������������ 774 United Nations Convention against Corruption 2003����������������������������207 United Nations Convention on the Law of the Sea, 1982�������������������������������� 801 Art 101������������������������������������������������������ 563 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988����������������������������������206, 780, 781 United Nations Convention on the Law of the Sea 1994�������������������������������� 772 Art 101������������������������������������������������������206 United Nations Convention against Transnational Organized Crime 2000 ����������������������������206, 793 United Nations Declaration on Friendly Relations 1970 ���������������� 774 Universal Declaration of Human Rights����������������297, 364, 408 Art 6���������������������������������������������������������� 372 Art 11(2)���������������������������������������������������� 327 Vienna Convention on the Law of Treaties 1969 Art 31(1)����������������������������������������������������366 Vienna Convention on the Law of Treaties 1986 Art 31�������������������������������������������������� 72, 418 Art 31(1)�������������������������������������������� 120, 366 Art 32�������������������������������������������������������� 418 Art 53���������������������������������������������������������325

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List of Contributors

Edwin Bikundo, Senior Lecturer, Griffith Law School Leora Bilsky, Benno Gitter Chair in Human Rights and Holocaust Research, Tel Aviv University Faculty of Law, and Director of the Minerva Center for Human Rights, Tel Aviv University Cheah W.L., Assistant Professor, Faculty of Law, National University of Singapore Alejandro Chehtman, Professor of Law, Universidad Torcuato Di Tella Law School Mikkel Jarle Christensen, Professor WSR, Danish National Research Foundation Centre of Excellence for International Courts (iCourts), Faculty of Law, University of Copenhagen Tom Dannenbaum, Assistant Professor of International Law, Tufts University Jean d’Aspremont, Professor of International Law, Sciences Po Law School and University of Manchester Marie-Sophie Devresse, Professor, Interdisciplinary Research Centre on Deviance and Penality, UCLouvain Lawrence Douglas, James  J.  Grosfeld Professor of Law, Jurisprudence, and Social Thought, Amherst College Mark  A.  Drumbl, Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute, Washington and Lee University Laurel E. Fletcher, Clinical Professor of Law, Berkeley Law, University of California, Berkeley Christopher Gevers, Lecturer, School of Law, University of KwaZulu-Natal Marlies Glasius, Professor of International Relations, University of Amsterdam Alexander  K.A.  Greenawalt, Professor of Law, Elisabeth Haub School of Law, Pace University Douglas Guilfoyle, Associate Professor of International and Security Law, School of Humanities and Social Sciences, University of New South Wales Canberra Miriam Gur-Arye, Judge Basil E. Wunsh Professor of Criminal Law, Faculty of Law, Hebrew University of Jerusalem

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xxx   list of contributors Adil Ahmad Haque, Professor of Law and Judge Jon O. Newman Scholar, Rutgers Law School Alon Harel, Phillip and Estelle Mizock Chair in Administrative and Criminal Law, Faculty of Law, Hebrew University of Jerusalem Kevin Jon Heller, Associate Professor of Public International Law, University of Amsterdam, and Professor of Law, Australian National University Dov Jacobs, Assistant Professor, Grotius Centre for International Legal Studies, Leiden University Neha Jain, Professor of Public International Law, European University Institute, and Associate Professor of Law, University of Minnesota Law School Sara Kendall, Senior Lecturer in International Law, University of Kent Mark Klamberg, Professor of International Law, Stockholm University Henry Lovat, Lord Kelvin Adam Smith Research Fellow, School of Law, University of Glasgow David Luban, University Professor in Law and Philosophy, Georgetown University, and Distinguished Chair in Ethics, Stockdale Center for Ethical Leadership, United States Naval Academy Itamar Mann, Senior Lecturer, University of Haifa, Faculty of Law Frédéric Mégret, is Professor of Law and a William Dawson Scholar at McGill University Tim Meijers, University Lecturer, Institute for Philosophy, Leiden University Marko Milanović, Professor of Public International Law, University of Nottingham, and Professorial Research Fellow, Deakin Law School Saira Mohamed, Professor of Law, Berkeley Law, University of California, Berkeley Samuel Moyn, Henry  R.  Luce Professor of Jurisprudence, Yale Law School, and Professor of History, Yale University Sarah MH Nouwen, is Reader in International Law and Deputy Director of the Lauterpacht Centre for International Law at the University of Cambridge, and Fellow of Pembroke College, Cambridge Jens David Ohlin, Vice Dean and Professor of Law, Cornell Law School Kim Christian Priemel, Professor of Contemporary European History, Department of Archaeology, Conservation, and History, University of Oslo Darryl Robinson, Associate Professor, Faculty of Law, Queens University (Canada) Damien Scalia, Professor, Centre de Recherches en Droit Pénal, Law and Criminologie Faculty, Université Libre de Bruxelles

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list of contributors   xxxi Christine Schwöbel-Patel, Associate Professor, School of Law, University of Warwick Gerry Simpson, Professor of International Law, London School of Economics Alette Smeulers, Professor of Criminal Law and Criminology of International Crimes, University of Groningen Sofia Stolk, Postdoctoral Researcher in International Law, Asser Institute/University of Amsterdam Jenia Iontcheva Turner, Amy Abboud Ware Centennial Professor in Criminal Law and Robert G. Storey Distinguished Faculty Fellow, SMU Dedman School of Law Sergey Vasiliev, Assistant Professor of International, Transnational, and Comparative Criminal Law, Faculty of Law, University of Amsterdam, and Fellow, Amsterdam Center for International Law Wouter Werner, Professor of International Law, Vrije Universiteit, Amsterdam, and Extraordinary Professor of International Law, University of Curacao Harmen van der Wilt, Professor of International Criminal Law, Faculty of Law, University of Amsterdam

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I n troduction Kevin Jon Heller, Frédéric Mégret, Sarah MH Nouwen, Jens David Ohlin, and Darryl Robinson

The fortunes of international criminal law (ICL) come and go. It is at times hard to keep track of the many developments in this amorphous and continuously evolving field. On some level, ICL is merely a technique for criminalizing the violation of certain norms and may not have much of a comprehensive project of its own. Indeed, over time ICL has been associated with a variety of substantive projects: fighting terrorism, protecting peace, punishing atrocities, and so on. It is impossible, moreover, to discuss ICL without discussing international criminal justice more generally, which encompasses a dizzying array of institutions and initiatives. At the same time, the last 30 years have been marked by an evident ‘normalization’ of the discipline from its earlier and perhaps more ‘heroic’ age. Where previous scholars had to make do with the legacy of Nuremberg and Tokyo and a motley of international offences, the discipline has now developed more of a sense of its origin and its des­tin­ ation. It has benefitted considerably from the creation and operation of international criminal tribunals that have provided ample opportunity to dissect previously undis­ cussed, and perhaps even unimagined, questions. Its social relevance has become more entrenched, its modes of intervention more familiar. Innumerable graduate pro­ grammes, journals, conferences, and monographs have been dedicated to its study. Although ICL has edged ever further towards completeness, tremendous disagree­ ment persists about not just the discipline’s norms, but even its very founding assump­ tions. The growing implementation of ICL has hardly been the simple and mechanical enforcement of uncontroversial norms that may once have been anticipated. Rather, that implementation has generated countless dilemmas of its own. In fact, one might even argue that the status of ICL has become more uncertain following, and perhaps as a result of, the proliferation of opportunities—international and domestic—to enforce its normative promise through liberal-legal judicial mechanisms. In addition, the

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2   Kevin Jon Heller ET al. increased specialization of the discipline has meant that some of its meaning has often been lost in the minutiae of technique. Where are the discipline’s grand narratives? In this context, it could be argued that ICL has emerged as both strong and weak. Strong because it is now clear that the discipline has a certain staying power. Beyond this or that contingent crisis, the multiplication of international criminal tribunals and domestic trials applying principles of ICL confirm a sense that criminal prosecution has become an indispensable tool of order and justice in the international community. But also weak, because ICL can be a challenging and even tenuous proposition in a deeply divided and pluralistic international environment. This duality has triggered a perhaps unusual degree of soul-searching and investiga­ tion about the field that reflects both the hopes invested in it and the anxieties it tends to generate. Is ICL what it claims to be? Is it true to its own self-proclaimed principles? Does it achieve what it was created to do? Indeed, ICL is as much a discipline as it is a social field and a terrain of scientific and theoretical inquiry. Some study the intricate workings of ICL from a doctrinal point of view, seeking to minimize incoherence and grasp the field as a logical totality; others investigate the actual impacts of international criminal tribunals using sophisticated tools of empirical analysis; still others treat inter­ nation­al criminal justice as a philosophical and ethical proposition. Some studies engage each other; others pass each other in the dark. But all tend to become a part of that which they claim to discuss. That could also be the future of the chapters in this Handbook. It is conceived as a guide to the state of the art in ICL research. It does not aim to be exhaustive, but it does seek to cover most of the broad dilemmas that have become characteristic of the dis­cip­ line. The editors have invited authors to avoid the standard fare of contemporary doctri­ nal debates. Instead, the contributions take a ‘step back’ and critically examine prevailing practices, orthodoxies, and received wisdoms. The aim is to shed new light on a muchdebated field by equipping readers with different ways of thinking about ICL. As a result, this book showcases a diversity of perspectives on the field. The chapters bring to bear empirical, critical, sociological, criminological, historical, and philosophical approaches. In doing so, they demonstrate the different methodologies, styles, sens­ibil­ities, and pre­ occupations of ICL as a discipline. In structuring the Handbook, the editors have sought to avoid reproducing ICL’s existing categories of understanding (substantive/procedural law, international crim­ inal tribunals/domestic courts, etc). Instead, we have organized the contributions according to a conceptual vocabulary that seeks to describe and analyze ICL as a system always in flux, of contested provenance, and facing an uncertain future. The resulting sections are titled: Actors, Spaces, Rationales, Crimes, Modalities, Narratives, Anxieties, Boundaries, and Future(s). Throughout the volume, one encounters various shared assumptions, concerns, and issues. Here we highlight three enduring controversies that have marred the discipline’s self-understanding and that have given rise to as many lines of questioning: controversies over hierarchy, over equality, and over consistency.

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Introduction   3 ICL has increasingly raised issues of hierarchy. The very nature of ICL is to create a hierarchy between the norms it backs and all other norms, the latter of which are presumed not to have an (internationally) penal character. But do norms of ICL always trump ‘ordinary’ norms of international law, as in the case of immunities? Issues of hierarchy can be found within ICL itself between its ‘core’ crimes and those presumed to lie at its periphery; in the relationship between international criminal tribunals themselves (is the ICC a primus inter pares or merely one among many international criminal juris­ dictions?); and between international criminal tribunals and domestic courts (issues of complementarity and primacy). Questions of hierarchy also emerge in the practice of international criminal justice, such as in the tension between the rights of the defence and the rights of victims, or between the pursuit of justice and the pursuit of peace. ICL also increasingly raises questions of equality that are at least partly in tension with the vertical thrust of hierarchy. How should ICL treat like cases alike? To what extent is international criminal justice the repository of ideological presuppositions that lead it to emphasize the importance of some harm or some evil at the expense of others? Certain hierarchical criteria (e.g., the relative gravity of crimes) inevitably provide the basis for claims that less grave instances of crime are being treated with too much severity— and vice versa. Negotiating this distributive dimension has become the stock and trade of international criminal tribunals, which constantly have to deal with allegations that their choices reflect some a priori bias. Finally, ICL raises intractable questions of authority in a context where its impact on certain constituencies is real and dramatic. Although ICL seems to presuppose consen­ sus in its very definition, that consensus is prone to crumble as soon as one seeks to implement it. What seems agreeable from a distance often looks uglier when the hard political costs for various actors are computed from up close. Who, in such conditions, gets to establish international criminal tribunals? How are international criminal cases constructed—and by whom? Who exercises prosecutorial discretion? Who speaks for international criminal justice? For victims? And why would states, victims, or even defendants decide to defer to certain institutional actors and not others? Turning now to the book’s nine sections, we provide short descriptions of the ­chapters within them.

Actors The five chapters in this section focus on actors that have played a central yet often underappreciated role in the creation and development of ICL: defendants, defence attorneys, scholars, and officials at international tribunals and NGOs focused on ICL. The chapters are not content to simply provide a formal description of those roles or dispassionately explain how they have evolved over time. Instead, each ­critically inter­ rogates the position of those actors in relation to the discipline of ICL as a whole.

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4   Kevin Jon Heller ET al. Three of the chapters focus specifically on the role of the defence. Marie-Sophie Devresse and Damien Scalia open the section with an empirical study of how in­di­vid­ uals who have been defendants at the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) perceived and understood the trial process. Breaking with those who resist taking seriously the lived experience of individuals accused of being responsible for terrible acts, the authors insist that even the most des­ pised génocidaire can contribute to knowledge production about international criminal justice. Devresse and Scalia’s conclusions, which are based on an analysis of 60 inter­ views, are enlightening and often counterintuitive. They find, for example, that a defend­ ant’s acceptance of the legitimacy of their trial generally depends far more on whether the defendant believes the process treated them fairly than on pragmatic considerations such as the outcome of the trial and the severity of any resulting sentence. Unfortunately, most defendants felt estranged from the trial process on account of its symbolic ‘­violence’ toward them (such as the judge reading the charges during their initial court appearance) and the passive position it necessarily assigns them ­during the trial. Jenia Iontcheva Turner’s chapter focuses on the attorneys who represent defendants. On the basis of interviews with 18 defence attorneys at the ICC, nearly all of whom had extensive experience at other international tribunals, she assesses whether the rise of ‘managerial judging’—greater judicial control over the conduct of trials in the name of ‘efficiency’, such as limiting the number of defence witnesses and the length of cross-­ examination—has adversely affected defence perceptions of the fairness of trials. Again illustrating the importance of empirically studying ICL, Turner’s conclusions are as sur­ prising as Devresse and Scalia’s. Perhaps surprisingly, most defence attorneys do not believe that judges at the ICC have undermined the fairness of trials through their man­ agerialism. In the majority’s view, the problem with the judges is not excessive emphasis on efficiency but unwarranted deference to the prosecution on a variety of issues, such as failing to demand adequate disclosure or not sufficiently questioning the adequacy of evidence during the confirmation of charges. Turner thus concludes that, to promote defence perceptions of fairness, limiting managerial judging is less important than pro­ moting equality of arms through, for example, greater legal aid and greater skepticism toward the prosecution’s case prior to trial. Dov Jacobs’ chapter, which is based on his experience with ICL as both a scholar and defence attorney, is more self-consciously polemical. Jacobs argues that international tribunals minimize the need to accurately determine the defendant’s guilt by routinely ‘balancing away’ defence rights vis-a-vis other values that are deemed more important, such as ‘combating impunity’ or acknowledging the suffering of the victims. He identi­ fies four different types of such balancing: foundational, procedural, institutional, and systemic. Foundational balancing concerns the (mis)use of the sources of international law, such as the tendency of international tribunals to rely on teleological interpretation of their enabling statutes to widen the sphere of criminal responsibility. Procedural ­balancing primarily involves de-emphasizing the importance of defence rights by

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Introduction   5 elevating the (assumed) rights of other actors in the system, such as the prosecution’s right to a fair trial. Institutional balancing relates to the structural position of the defence at inter­nation­al tribunals, which is almost always peripheral by comparison to the prosecution, as well as the general tendency of tribunals to starve the defence of funds in order to better serve the needs of victims. And systemic balancing focuses on how the collective nature of international crimes requires international tribunals to rely on substantive doctrines—such as joint criminal enterprise or indirect co-perpetration— that make it more difficult to accurately assess the criminal responsibility of individual defendants. Those four types of balancing, Jacobs suggests, relegate defendants to the margins of the trial process, significantly increasing the likelihood of unjust verdicts. Mikkel Jarle Christensen’s chapter returns us to the empirical study of ICL by focusing on a key actor whose centrality has gone largely unnoticed: the ‘new professional elite within and around the international criminal courts’, understood as individuals who have accumulated so much symbolic capital within ICL that they function as a shaper of the discipline itself. Based on nearly 120 interviews and 255 CVs, Christensen care­ fully traces the evolution of the new professional elite from three different starting points: the international judiciary, particularly the ICTY; leadership of NGOs dedi­ cated to international criminal justice, such as the Coalition for the International Criminal Court and Human Rights Watch; and academia. What his genealogy reveals is that, whatever their starting point, professional elites generally achieved their ­status  through a similar three-step process: they obtained senior positions within international-crim­inal-law-related institutions in the early 1990s, when ICL was a relatively new field; they used the symbolic capital that came with their senior posi­ tions to build influence within the field of ICL as a whole, often by moving into and through multiple high-level roles; and eventually they accumulated so much symbolic capital across institutions that they came to be seen as ‘founding fathers’ of ICL. Whereas Christensen’s chapter only touches on scholars, Neha Jain puts them front and centre, asking what the outsized role ‘publicists’ have played at the ICC says about the methodological coherence of the field and, more generally, about public inter­ nation­al law’s formal relegation of the ‘teachings of the most highly qualified publi­ cists’ to a subsidiary status. She explores those questions through the lens of the court’s decision to reject joint criminal enterprise as a mode of liability in favour of indirect perpetration and co-perpetration, both of which are profoundly indebted to the work of Claus Roxin, a prominent German criminal law theorist. For Jain, the ICC’s overt reliance on Roxin and German criminal law scholarship more generally indicates that the Court is much less interested in the formal sources of international law than the ICTY and ICTR, neither of which ever relied to any great degree on legal scholarship. Indeed, she suggests that—at least in practice—the work of publicists is the most important ‘source’ of law at the ICC, assuming pride of place even over rules that can be derived through normal principles of treaty interpretation. That valorization of scholarship, Jain suggests, is best explained sociologically instead of doctrinally—as

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6   Kevin Jon Heller ET al. reflecting the critical role publicists played in drafting the Rome Statute and continue to play (to invoke Christensen) as key members of ICL’s ‘new professional elite’.

Spaces The chapters in this section examine different facets of the political geographies of ICL. Tom Dannenbaum’s chapter considers a prominent North-South issue: the problem of the privileged position of the permanent members of the Security Council. Security Council referrals are a legally sufficient basis for ICC action under the Rome Statute and the UN Charter. But there is a moral legitimacy challenge to such referrals, given that the permanent members can refer situations and yet veto any referrals of their own actions—even those members that have rejected ICC ratification. Dannenbaum argues that this double standard undermines the ICC’s moral standing to judge and explains why this criticism undermines the ICC but not the ad hoc tribunals, which are even more dependent on the Security Council. His prescriptions are that the ICC should be vested with universal jurisdiction, that Security Council referrals should be removed from the Statute, or, more modestly, that the Prosecutor should decline all Security Council referrals under the ‘interests of justice’ test. Christopher Gevers also powerfully dissects the North-South dimensions of ICL. He shows that all sides in current debates about Africa and the ICC rely on a foreshortened understanding of the history of Africa and ICL, because Africans have been present since the beginning of the ICL project in 1919, including as producers of ICL. For ex­ample, Africans pressed for recognition of the crime of apartheid even in the face of entrenched reflexes of ignoring apartheid and the crimes of colonial powers in Africa. Gevers also explores the different ways both images of ‘Africa’ and understandings of ‘Europe’ have been represented in ICL. The absence of prosecution for apartheid and colonial crimes, as well as the silence regarding apartheid in the historiography of ICL, tell a less triumphant story of ICL. A richer account would thus place current critiques of ICL’s problematic relationship with Africa into a longer history. Like Tom Dannenbaum, Harmen van der Wilt focuses on the question of moral standing: on whose behalf does a criminal court purport to act? He examines the jus­ tification for a regional criminal court, namely the proposed Criminal Chamber within the African Court of Justice and Human and Peoples’ Rights. He draws on Durkheim’s concept of the social function of criminal law and Duff ’s idea of the requisite ‘political community’ on whose behalf a penal institution speaks to argue that a region can constitute a political community capable of being protected by crim­ inal law and represented by a regional criminal court. The Malabo Protocol, which establishes the Criminal Chamber, includes not only the standard ‘core crimes’ but a range of other crimes as well. Van der Wilt argues that these are crimes that signifi­ cantly affect Africans and African states, making it appropriate to create a regional institution in an attempt to counter them.

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Introduction   7

Rationales The chapters in the Rationales section focus on the raison d’être for international criminal justice. But instead of simply rehashing old rationales, these chapters problem­ atize the common concepts and buzzwords so often deployed to both explain and justify the resort to criminal prosecution. To start, Miriam Gur-Arye and Alon Harel focus on why ICL matters, and in so doing generate a distinctive philosophical vision for the pro­ ject of international criminal justice. Specifically, Gur-Arye and Harel reject the notion that ICL is simply a gap-filler for ineffective penal institutions at the domestic level. So much of the literature is characterized by an assumption, buttressed by the ICC’s complementarity principle, that international tribunals simply spring into action to resolve the lacunae in domestic legal processes when armed conflict or other disruptions dismantle traditional institutions for criminal enforcement. In contrast, Gur-Arye and Harel argue that the ‘goods of ICL and the values it promotes can only be provided by international entities’. In that respect, international justice is not a second-best alterna­ tive to domestic justice but is, rather, necessarily international because international institutions are specifically designed to redress wrongs that harm the interests of the international community as a whole. Mark Drumbl takes a different tack for answering the same fundamental question: why does international criminal justice exist to punish perpetrators of international crimes? So much of the traditional discourse focuses on the concept of impunity, and Drumbl fixes his critical gaze on that oft-repeated but rarely scrutinized concept. According to Drumbl, impunity in a broad sense means freedom from ‘harmful conse­ quences, recrimination, reparations, shame, or sanction’. Consequently, compared with traditional accounts, Drumbl argues for a much more capacious understanding of poena, which might give societies—particularly those faced with a recent history of mass atrocity—a greater set of options and allow them to move beyond incarceration as the only form of punishment. In the end, Drumbl retains the concept of impunity as his central focus, but it is a redrawn and re-envisioned notion of impunity that will chal­ lenge the preconceptions of many international criminal lawyers. The chapters by Drumbl as well as Gur-Arye and Harel both teach us that inter­ nation­al punishment stands at the crossroads of the individual and the collective. On the one hand, the object of punishment is an individual; but on the other hand, that punishment is often assumed to accomplish something for the collective. That tension is explored in depth by Marko Milanović, who asks whether international tribunals are capable of healing a traumatized society. In that sense, it is not enough that a tribunal punish the guilty, it must also produce a social awakening concerning the community’s own culpability for the wrongdoing. Drawing on his empirical evaluation of the social response to the work of the ICTY, Milanović questions whether this can occur. At least in the case of the ICTY—otherwise regarded as one of the most successful international tribunals—the work of the tribunal has been shockingly ineffective because some sec­ tors of the public simply refuse to accept the conclusions that the tribunal has drawn.

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8   Kevin Jon Heller ET al. Milanović then broadens this conclusion into a general theory: that the work of a ­tribunal will be viewed positively by the local population unless the tribunal is a threat to local elites who have the power to shape public opinion against it.

Crimes The first two chapters in this section, by Alejandro Chehtman and Alexander Greenawalt, both seek to illuminate the theory of what constitutes an international crime. As they note, the question is not merely theoretical but has concrete conse­ quences: characterization as an international crime enables extra-territorial prosecu­ tion, including through universal jurisdiction and by international tribunals, and potentially has other effects on the availability of statutes of limitations, the defence of superior orders, immunities, and amnesties. Greenawalt surveys problems with most available explanations of the theory under­ lying international crimes and suggests a pluralist account. He notes that contemporary law seems to be more about protecting humans than about international order or inter­ state regulation per se. He suggests the focus on mass atrocities, along with other limita­ tions (such as admissibility), is a means of managing scarce resources to prioritize the gravest crimes as a fallback when states are ineffective. Beyond these general outlines, there is no hard and fast line because, in a pluralistic system, international crimes demand a continuum of responses (prosecution, preventive action). Different applica­ tions can warrant a different way of understanding a given crime. Chehtman argues that international criminalization has to be justified before the affected political community. He concludes that the most significant feature of inter­ nation­al crimes is that they allow extra-territorial jurisdiction. Accordingly, inter­nation­al crimes must warrant conferring upon extra-territorial authorities the power to punish. ICL should thus not encompass isolated acts, as some have argued; instead, a substantial level of gravity is needed to justify extra-territorial jurisdiction. Chehtman argues that ICL contributes to the well-being of individuals by declaring that they are the bearers of fundamental legal rights and that those rights will be protected by authorities. ICL complements domestic justice systems by providing individuals a benefit that domestic criminal justice systems cannot provide on their own. Samuel Moyn argues that although the Nuremberg proceedings were heavily focused on the crime of aggression, ICL’s emphasis has shifted dramatically: since the reinven­ tion of ICL in 1990s, it has foregrounded atrocity. ICL is often presented as following a smooth trajectory, but actually there was a reversal or massive shift from a priority on aggression to its near exclusion. The focus on atrocity—and the aspiration to make war ‘clean’—may humanize war rather than stigmatize it, and perhaps even enable war instead of limit it. Moyn suggests, as an explanatory hypothesis, that Nuremberg took place during a ‘passing window of plausibility’: the USA has generally opposed the crim­ inal prohibition of aggression, either because such a system might demand US intervention

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Introduction   9 or because it might pass judgment on US interventions. Circumstances aligned to allow the Nuremberg proceedings, after which ICL stalled again, and the switch to an atrocity focus helped fill the resulting void. Edwin Bikundo delves into one specific crime, enslavement as a crime against humanity. He argues that the law has drawn heavily on civil and political rights, neglect­ ing economic, social, and cultural ones. The law surrounding slavery has drawn on some basic contrasts: notably separating the concept of ‘human’ (a human being) from ‘per­ son’ (a bearer of legal personality and rights). Another distinction is between ‘status’ and ‘condition’. The law has tended to focus on status, i.e., legal non-recognition of person­ hood, which has affinities with civil and political rights. The law has given much less attention to ‘condition’, which looks at the person’s material conditions in fact, and which has affinities with economic and social rights. A re-imagined law better encom­ passing economic and social rights would be more ideologically neutral, more in keep­ ing with human rights law, and more in keeping with the lived experiences of African would-be migrants. Recognition in law is not enough; one must also look at the material conditions of life, the deprivation of which enables enslavement.

Modalities The section on modalities focuses on doctrines and concepts that are part of the ­methodology of international criminal justice. These include not just modes of liability as part of the substantive criminal law doctrine, but also other conceptual methodolo­ gies used by institutions of international justice. The chapter by Alette Smeulers tackles the Control Theory of Perpetration, a German-inspired mode of participation that is applied only by the ICC. The control the­ ory, developed by the German scholar Claus Roxin, provides a doctrinal apparatus for distinguishing between principal perpetrators and mere accomplices. Instead of defin­ ing the principal perpetrator as the individual who performs the actus reus of the offence, or who has the mens rea for the offence, the control theory states that he or she who controls the crime is the principal perpetrator even if that person uses another individual, or even an organization, to carry out the crime. Although much ink has been spilt in the scholarly literature regarding the doctrinal details of this mode of liability, Smeulers has a far broader question to ask: Does the control theory as applied by today’s ICC (or by other courts that have adopted it) accord with the social reality of how atro­ cities are committed? In other words, she is not asking whether the control theory is good criminal law theory, but rather whether the control theory is good sociological criminology. Jean d’Aspremont takes a step back and looks more globally at the methodologies used by international criminal justice, particularly its tendency towards expansionism: including more actors, more situations, and more offences under its umbrella. D’Aspremont does more than simply tell the story of this expansion; he also systematizes

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10   Kevin Jon Heller ET al. it. He argues that international criminal justice’s expansionism has taken two important forms. The first wave involved a sources-based expansionism, characterized by the field’s desire to expand its influence by increasing the number of legal sources—treaty, custom, general principles—that could be sources of ICL. But when that process was largely complete, the passage of the Rome Statute of the ICC heralded a new, hermen­ eutic form of expansionism, this one based on interpretation rather than on adding new sources of law. While the hermeneutic expansion is less overt and less recognized than the first wave, its consequences are still dramatic. Adil Haque focuses on the relationship between immunity and impunity. Specifically, Haque traces the arguments made by Hans Kelsen that international principles of immunity protect individuals from prosecution for acts done in their official capacity. Given international criminal justice’s mandate to target the most culpable perpetrators of international crimes, who are often government leaders, the question of official immunity is the major roadblock to eliminating impunity. However, Kelsen even extended this view to regular soldiers acting on official government orders. Although this position is seemingly out of step with mainstream doctrine that assumes that lawful combatants can be prosecuted for violating jus in bello, Haque deftly demonstrates that Kelsen’s radical views nonetheless continue to linger today in the margins of the field. The chapter by Mark Klamberg deals with the epistemological challenges posed by the evaluation of evidence in international trials. Unlike common-law juries, who are insulated from evidence deemed by a judge to be potentially irrelevant or prejudicial, international judges have access to all evidence in order to fulfil their role as fact-finders. Klamberg suggests how judges should undertake that fact-finding obligation, especially with reference to an ‘alternative hypothesis’ standard of decision for evaluating the mas­ sive amounts of evidence presented at trial. Given the high-profile collapse of several recent cases at the ICC due to lack of evidence presented at trial, Klamberg’s chapter is notable for bringing back standards of decision and other evidentiary issues to the centre of the discussion. Evidence is about more than arriving at convictions or acquittals; it is also neces­ sary for securing the truth, though that goal is a highly contested one for international crim­inal justice. Leora Bilsky asks whether victims have a ‘right’ to the truth, and if they do, whether international trials are the appropriate vehicle for vindicating that right. Many have argued for a limited role for international criminal trials, one focused exclusively on the fate of individual defendants, while others seek to subordinate criminal trials to larger, historiographic goals of constructing a definitive record of atrocities and other violations. Bilsky reframes these debates around the concept of ‘victim rights’, which are all the rage in the field, especially since the Rome Statute pro­ vides a privileged place for victims in the procedural mechanics of the ICC. Bilsky concludes that these developments, combined with the role of human rights law, has ushered in an ‘emerging truth regime’. Finally, Saira Mohamed details the consequences of the lost history of ‘criminal organizations’ as a distinct mode of liability. At Nuremberg, certain Nazi organizations were judged to be ‘criminal’ organizations by virtue of the role that they played in the

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Introduction   11 execution of the Holocaust. One rationale for these declarations was to facilitate mass trials—and convictions—based purely on mere membership in these criminal or­gan­ iza­tions. Mohamed details how the law treated the ‘cogs’ of these ‘machines’ as an im­port­ant part of the story of the Holocaust. But the mass trials never occurred and the notion of ‘criminal organizations’ was largely swept aside by other developments. Nonetheless, notions of organizational criminality emerged, in different ways, in other doctrines and modes of participation which dominate the field today. Mohamed asks provocative questions about what the field would look like today if ‘criminal organiza­ tions’ had not been eliminated as a doctrinal category. How might today’s international criminal justice make use of the doctrinal concept? Would doing so have the benefit of recognizing the crucial role that organizations play in mass atrocity?

Narratives This section focuses on the narratives produced by international criminal justice. One way in which international criminal justice produces narratives is through trials. Exploring the overlaps and differences between historical reasoning and judicial his­ tori­og­raphy, Kim Priemel argues that historians and international criminal lawyers share more ground than they usually acknowledge. Not only are both professions in what Raoul Hillberg has labelled the ‘truth business’, they also share methodologies. In contrast to the many scholars who have argued that lawyers, unlike historians, focus on judgment rather than historiography, Priemel takes the reader from Nuremberg to the ICC to show that judicial proceedings have been a major site for the development of both micro- and macro-level histories, sometimes problematically so. Moving the book from how trials produce historical narratives to how the emergence of a certain body of law itself changes dominant narratives, Lawrence Douglas argues that the development of the international law of aggression has served to destabilize a dominant narrative, namely that of the distinction between criminal and enemy. Going all the way back to Hobbes—and also discussing Kant, Grotius, de Vattel, Schmitt, and Arendt—Douglas shows that the criminal/enemy dyad was central to the Western legal tradition for many centuries. He then argues that the emergence of the international law on aggression has upended that binary, affecting the boundaries between war and policing, and between the jus ad bellum and the jus in bello. David Luban also engages with narratives around enmity produced by inter­ national law, but he focuses on crimes against humanity rather than aggression. Analyzing the notion of ‘enemy of humanity’, Luban traces it back to tyrants rather than, as per the dominant narrative, pirates. Like Douglas in the chapter before him, Luban engages with Schmitt’s predictions as to what it means to label someone an enemy. He argues that as long as the enemy is considered a criminal rather than an outlaw, and is treated in accord with humane law, the metaphor of enemy of humanity is not problematic. Luban then turns to the concept of humanity in the notion of

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12   Kevin Jon Heller ET al. enemy of humanity, arguing that this term does not describe an existing ­phenomenon, but a normative ideal, and that this ideal lies at the very basis of ICL. Having explored how trials and legal concepts produce or change narratives, the ­section then turns to Sofia Stolk and Wouter Werner’s analysis of how audio-visual ­representations of the work of international criminal tribunals create narratives around victims. Stolk and Werner highlight one important aspect of those narratives (as with discourse in general): they do not merely reflect and represent, they also create. More specifically, victims and victimhood are not pre-given categories, but are instead constituted via acts of representation, including audio-visual ones. Viewing this material through the lens of a typology of modes of representation in documentary film theory, Stolk and Werner argue that audio-visual productions have created differ­ ent types of victims: whereas advocacy documentaries have produced ‘ideal’ victims, critical documentaries ‘argumentative victims’, and observatory documentaries ‘translated victims’, audio-visual materials produced by the ICC itself have presented ‘bureaucratized victims’.

Anxieties The section explores various anxieties about international criminal justice. Henry Lovat explores the phenomenon of backlash against international criminal tribunals, defining backlash as ‘intense and sustained government disapproval of tribunal conduct, accom­ panied by aggressive steps to resist such conduct and to remove its legal force’. Drawing on international relations theories, he analyzes drivers and inhibitors to backlash against international criminal tribunals, specifically the ICC, the ICTY, and the Special Tribunal for Lebanon. He identifies several factors relevant for explaining tribunal backlash: domestic politics and the preferences and interests of powerful elites; external actors, particularly engaged regional and great powers; and transnational social pressure. Whereas Lovat focuses on backlash against international criminal tribunals, Sergey Vasiliev explores the notion that international criminal justice is in ‘crisis’. Although the language of crisis suggests an occasional, temporary, exceptional moment, Vasiliev argues that the project of international criminal justice has essentially been in crisis since its emergence. International criminal tribunals, he contends, have never been able to cleanse their ‘original sin’: despite the aspiration to transcend state power and state sovereignty, they remain heavily dependent on it. The more finessed the doctrine, the more professional the practitioners, and the more numerous its institutions–the more evident is the field’s inability to challenge power inequalities and address structural injustices. Against this background, Vasiliev assesses how ‘the mainstream’ responds to the critiques and whether it does so persuasively. Concluding that critical international criminal lawyers and mainstream international criminal lawyers seldom converse and think together, he ends with a call for a critical sensibility of the mainstream, facilitating a transformation of institutional politics as a result of which the ICC would no longer be afraid of itself.

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Introduction   13 Taking Eichmann as his object of study, Itamar Mann subjects international criminal trials to three types of critique. First, adopting the perspective of the rule of law, he engages with Hannah Arendt’s writing on the Eichmann trial to argue that international criminal trials are constantly suspected of becoming ‘show trials’. Secondly, turning to Shoshana Felman’s work, he identifies a genre of critique according to which inter­ nation­al criminal justice is premised on an experience of catharsis, in which the trauma of atrocity’s victims is alleviated (constituting a post-atrocity political community). Finally, he analyzes a 2010 film that shows the trauma of the man who executed Eichmann to show the unacknowledged risks of wielding the violence of criminal just­ ice. Based on this ‘hangman’s perspective’, he suggests assessing international criminal trials in light of questions about the transnational allocation of such risks and about pre­ existing inequalities—economic, ethnic, and other—that determine the roles different people will end up playing in trials. A common critique of international criminal justice, most famously made by Martti Koskenniemi, is that international criminal trials, when faced with high-profile and charismatic defendants, are basically doomed: either they silence the defendant’s pol­it­ ical rhetoric and become show trials, or they let the defendant speak of the bias and inconsistencies in their institutional set-up, thus equally imperiling their legitimacy. In their chapter, Marlies Glasius and Tim Meijers argue that this dilemma produces a com­ municative advantage for ‘defiant defendants’, which they label ‘inequality of arms reversed’. However, in their view, international criminal courts are not doomed by this reverse inequality: the communicative outcomes of international criminal trials remain contingent. For instance, prosecutors can make arguments that are politically and cul­ turally attuned to local audiences. Moreover, the procedure of the trial can influence the defendant’s attitude. Glasius and Meijers argue in conclusion that it is possible for pro­ secu­tors and judges to acknowledge the political dimension of international criminal processes without turning them into show trials. Indeed, they argue, it is desirable for judges and prosecutors to confront the politics of the defendant head on.

Boundaries The section on boundaries seeks to highlight the constant process of renegotiation of differences between and within fields and sub-fields. ICL intersects with many other fields, sometimes to the point of being hard to distinguish from them. At the same time, other fields can either carry an explicit and implicit critique of ICL and some of its short­ comings or be the repository of crucial lessons learned for international criminal justice. Defining its autonomy but also drawing on the energy of those fields, then, is a key chal­ lenge of the discipline, one that helps it construct a sense of external boundaries against what are perceived to be different and incompatible approaches. This section envisages how this criss-crossing of competing logics has and will continue to shape ICL and just­ ice, and how both accepting and challenging the boundaries of the discipline may help energize thinking about it.

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14   Kevin Jon Heller ET al. Laurel Fletcher opens the section with a critique of ICL from the point of view of t­ ransitional justice, deploring the former’s increasingly hegemonic role in relation to the latter. International criminal ‘legalism’, she argues, ‘diverts attention from broader, emancipatory, social justice goals to address rights of victims or the structural, systemic dimensions that fueled mass violence’. Fletcher points out that the goals of transitional justice have always been framed more broadly, whereas ICL’s own goals are, at least nominally, much narrower (punishing individuals) and somewhat detached from their social finality. Yet for all its limitations, ICL does continue to command a high degree of authority, even within the field of transitional justice itself. This is in no small part because transitional justice is grounded in a rights-based approach that is itself commit­ ted to accountability. Fletcher then tests this argument by looking at the Darfur crisis, leaving little doubt that the Security Council selectively read the Commission of Inquiry’s broad recommendations to implement only the individual criminal responsi­ bility element. It is notable that transitional justice once had a much broader remit, but is increasingly conceived as dependent on and at best a by-product of international criminal prosecutions. The emphasis is on the international rule of law and vindicating the interests of humanity, at the expense of victims. Should transitional justice emanci­ pate itself from ICL altogether, even if that means de-emphasizing the rights element in its discourse? Fletcher ends with a note of skepticism about the power of legalism, beyond its undeniable contribution to upholding the rule of law, to formulate an eman­ cipatory social project. Sara Kendall and Sarah M H Nouwen reflect on the interaction between international criminal justice and ‘humanitarianism’, a neglected question despite the obvious overlap between the fields. They argue that ICL could draw on some of the older debates that have arisen in humanitarianism. Drawing on the work of Didier Fassin, they highlight the degree to which humanitarianism has already gone through many of the same debates that international criminal justice is currently going through. To be sure, on one level the logic of humanitarianism is quite distinct from that of international criminal justice and may even come in tension with it; both ‘govern’ in distinct ways, and according to ‘differ­ ent temporalities, objectives, values and logic’; indeed, humanitarians may be wary of the taking of sides evident in ICL. But these differences may be more superficial than real. For example, both are committed to an apolitical stance, a problematic assumption given the fragility of their ‘universalist’ standpoint. Indeed, some humanitarian organizations have recognized the limitations of a pure apolitical model in a context where they are con­ stantly at risk anyhow of being instrumentalized by their political promoters. In terms of constituency, the emphasis on ‘victims’ or ‘humanity’ is also ­subtly belied by the reliance on the state and international criminal justice’s neglect of how donor interests shape it. Indeed, over time, international criminal justice is increasingly associated with its own form of humanitarianism. The chapter suggests that inter­nation­al criminal justice should learn some lessons from its sister-field, and in particular those of accountability to its claimed beneficiaries, of unintended consequences, and of reflexivity. Wui Ling Cheah deals with quite a different and possibly broader tension, that which exists between ICL and ‘culture’. Operating in societies where the very meaning of

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Introduction   15 ­ unishment is contested, international criminal justice is often faced with a cultural p challenge that endangers its legitimacy. At several levels, it ‘exerts a marginalizing or exclusionary effect on the culturally dissimilar, while constructing certain understand­ ings of cultural difference’. The universalism of international criminal justice is hardly ever taken for granted by the actors that confront it, particularly in a context where just­ ice itself appears to be cultural. At the same time, culture is contested, and local forms of justice may be challenged as merely reflecting certain groups’ agendas. Complementarity provides both an avenue for experimenting with distinct forms of justice and potentially a constraint on how far this can be done. Yet international criminal justice itself is no stranger to pluralism and has tended to draw on a variety of legal cultures for its own constitution through the development of hybrid forms (in tribunals, in procedure). This mixing of traditions is not without its critique and often ends up occurring on the terms set by the dominant party. Finally, international criminal tribunals’ encounter with audiences coming from a variety of cultures suggests a potential for confusion and mis­ understanding. If nothing else, tribunals have rejected cultural arguments and even been dismissive that the imposition of international criminal justice could be moder­ ated by cultural tropes. This suggests that it will be difficult for international criminal justice to move to a position where cultural diversity is not seen as a threat. Finally, Christine Schwöbel-Patel, Douglas Guilfoyle, and Frédéric Mégret reflect on the internal structuration of the ICL field, and the extent to which it constantly pro­ duces narratives about its own meaning. These are often based on a subtle hierarchy between international crimes, notably ‘core crimes’ and various transnational crimes. Schwöbel-Patel emphasizes the political and distributive costs of emphasizing the former (‘the most serious crimes of concern to the international community’) at the expense of latter. This is a relatively new development and, seen in its historical context, it reveals remarkable discontinuities in particular in relation to the Nuremberg prece­ dent. In fact, there is much disagreement about what might constitute the distin­ guishing mark of core crimes compared to the others. Schwöbel-Patel argues that the dichotomy suggests a series of biases—civilizational (institutionalizing a North-South opposition), political-economic (benefiting powerful states, imposing costs on weak ones), and aesthetic (setting in motion a ‘politics of distraction’ that emphasizes ‘spec­ tacular’ crime)—that have led to transnational criminal law being considered an entirely separate discipline. Examining the emblematic fate of drug trafficking, she ponders how that came to be seen as a non-core offence and why the discipline feels so little compul­ sion to explain such a move. That drug trafficking was once seriously considered as an ICC crime and is arguably not so different in its doctrinal structure suggests that powerful forces are at work in the background. Focusing on transnational crimes, Douglas Guilfoyle notes that these were long part of the ICL canon. It is only late in the discipline’s history that they became conceived as belonging to a distinct discipline that covers an eclectic mix whose distinguishing fea­ ture is not always evident. For example, most transnational crimes do not actually require a cross-border element. If no unifying feature for transnational crimes can be found, Guilfoyle argues, then it may be just as hard to find a distinguishing feature

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16   Kevin Jon Heller ET al. between such crimes and so-called core crimes. Like Schwöbel-Patel, Guilfoyle revisits the history of ICL, but he focuses more on the origin of the distinction in the Draft Code of Crimes Against the Peace and Security of Mankind. This distinction, which became quite influential, foregrounded crimes under general international law and crimes of international concern as two separate categories. Guilfoyle shares Schwöbel-Patel’s skepticism about the distinction, noting the ‘question begging’ charac­ ter of defining international crimes on the basis of an implicitly accepted notion of what international crimes are. The notion that true international crimes are ‘directly crim­ inalized’, or that they affect ‘fundamental values of the international community’, or that they involve the use of ‘public power’, while transnational crimes involve ‘prohibited conduct across borders’, or crimes ‘established by multilateral conventions’, and the exer­ cise of ‘private power’ cannot conceal that all these distinctions are hardly full proof on their own terms and, at any rate, more of an artefact of history than the outcome of some overarching criminal law theory. Guilfoyle then highlights the crimes of piracy and torture as two examples of offences that seem to resist classification in either of those categories. This is not to say that the attempt at drawing distinctions is fruitless—in fact, it sustains relevant conversations about, for example, the intrinsic character of gravity of various crimes in relation to each other. But it does point to an irreducible element of faith (where Schwöbel-Patel highlighted ideology) in any act of prioritization. Finally, Frédéric Mégret suggests that maybe we need to rethink, on both doctrinal and political grounds, the distinction between core and transnational criminal law with a view to recovering a sense of the discipline’s lost unity. In agreement with both Schwöbel-Patel and Guilfoyle on the basic diagnosis, but extending it to international criminal justice more generally, Mégret identifies a tendency towards fragmentation and rarefication that has led both core crimes and the operation of international crim­ inal tribunals to monopolize attention and increasingly be identified with ‘ICL’. He sug­ gests that, in addition to having a weak doctrinal basis, that distinction is theoretically and criminologically dubious, and probably manifests a series of professional agendas more than anything else. Mégret argues that the time may have come to recover at least a unified research agenda when it comes to ICL, one that rediscovers the extent to which supranational and transnational criminal law are at the very least joined at the hip. This involves better conceptualizing how the defining phenomenon of ICL is not only the criminalization of certain international law prohibitions, but also the ascendancy of certain ideas about crime control globally, as well as the degree to which both core crimes and transnational crimes rely on a common criminal corpus and conceptual baggage. Mégret ends with a call for renewed engagement with a sort of meta-theory of ICL, one that would make more sense of the relations between its diverse constituent parts.

Future(s) This Handbook concludes with a capstone contribution from Gerry Simpson, in which he maps out some of the broader conversations between the chapters. As he notes,

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Introduction   17 the Handbook demonstrates the quite dissonant moods about the health and future of ICL. The field is in many ways in an era of decay, backlash, recession, and anti-climax. And yet there remains a burgeoning popular interest and a flourishing and illuminating academic literature. Perhaps it helps to distinguish ICL as an institutional activity from ICL as an intellectual project. Simpson identifies three different registers among the contributions in this volume: reformist hope, unfriendly skepticism, and—wavering between the two—critical affinity. He also outlines some of the lines of response from supporters, although he does not find the main lines of defence particularly convincing. And so the conversation continues.

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Section I

AC TOR S

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chapter 1

A n Em pir ica l A na lysis of I n ter nationa l Cr i m i na l L aw The Perception and Experience of the Accused Marie-Sophie Devresse1 AND Damien Scalia2

I. Introduction While the ad hoc international criminal tribunals are closing their doors after 25 years of operation and the International Criminal Court (ICC) has regularly been subjected to criticisms (both political and legal), few empirical studies have been carried out on and with the principal stakeholders of international criminal law. Scholars have mainly focused on the technical aspects of international criminal law, on its legitimacy, and on its philosophy. While these approaches are crucial in order to analyze international criminal justice, they seem too narrow to provide an analysis or an appraisal of justice as a whole. On the one hand, legalistic approaches have a restricted objective, limited to constitutive texts (i.e., statutes of international criminal tribunals) and case law, but excluding their functioning, their social impact, their interpretation by local populations, as well as their localization on the political

1  Professor of Criminology, UCLouvain/CRID&P—[email protected] 2  Professor of Criminal Law, Université libre de Bruxelles—[email protected]

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22   Marie-Sophie Devresse and Damien Scalia and economic map. On the other hand, legitimacy is such a polysemic term3 that it might be seen as an aporetic, circular, and empty concept.4 This chapter is therefore based on the hypothesis that an empirical approach could open a window into a renewed analysis of international criminal justice, focusing on its social impact and concrete significance. It is true that there have been some empirical studies on international criminal law, but they have been carried out mostly on justice professionals,5 on victims of international crimes, or on populations who have ex­peri­ enced war,6 as opposed to perpetrators. When studies take into consideration those prosecuted, it is not as ‘accused before the court’ but as perpetrators. For example, various studies have examined the normative and socio-political conditions of collective violence: the interindividual or intergroup factors facilitating the perpetration of crimes;7 historical factors explaining mass crimes;8 and perceptions of justice of or­din­ ary offenders.9 However, very few scholars have questioned what it really means to be involved in an international justice process, to be accused of the worst crimes, and to have to appear before judges. As a result, the judicial positioning of those prosecuted arouses very little interest among researchers, even though one might think it could help to better understand the functioning of the criminal justice process. The approach we use for this study intends to fill this gap. Our aim is to analyze inter­ nation­al criminal law through the prism of one of the main actors of criminal proceedings: the person who has been tried (i.e., in our research study, after the end of the trial). Our approach proceeds on the assumption that such individuals have ‘something to say’ 3  Antonio Cassese, ‘The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice’ (2012) 25(2) Leiden J of Intl L 491; Frédéric Lordon, ‘La légitimité n’existe pas. Éléments pour une théorie des institutions’ (2007) 53 Cahiers d’économie politique 135 (hereafter Lordon, La légitimité n’existe pas); Tullio Trèves, ‘Aspects of Legitimacy of Decisions of International Courts and Tribunals’ in Rudiger Wolfrum and Volker Röben (eds), Legitimacy in International Law (Springer 2008). 4  Lordon, La légitimité n’existe pas (n 3) 150–53. 5  See not. Niguel Eltringham, Genocide Never Sleeps, Living Law at the ICTR, (CUP, 2019); Philip Caine, ‘The International Criminal Tribunal for former Yugoslavia: Planners and Instigators or Foot Soldiers?’ (2009) 11(3) Intl J of Police Science and Management 345; John R Cencich, ‘International Criminal Investigations of Genocide and Crimes Against Humanity: A War Crimes Investigator’s Perspective’ (2009) 11(2) Intl Crim Justice Rev 175; Elisabeth Claverie, ‘La Violence, le procès, et la Justification, Scènes d’audience au TPIY’ in Retour sur De la Justification, Actes—Colloque de Cerisy (Economica 2009); Pierre-Yves Condé, ‘Quatre témoignages sur la justice pénale internationale : entre ordre public international et politiques de justice’ (2004) 3 Droit et société 567. 6  Guy Elcheroth and Dario Spini, ‘Public support for the prosecution of human rights violations in the former Yugoslavia’ (2009) 15(2) Peace and Conflict: Journal of Peace Psychology 189; Sanja Kutnjak and John Hagan, ‘Victims’ Perceptions of the ICTY Justice’ (Paper presented at the annual meeting of the Law and Society Association, Montréal, Canada, 27 May 2008). 7  Christopher Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (Harper-Collins Publishers 1992). 8  Harald Welzer, Les exécuteurs. Des hommes normaux aux meurtriers de masse (Gallimard 2007). 9  Jonathan Jackson and Tom Tyler, ‘Future challenges in the study of legitimacy and criminal justice’ in Justice Tankeba and Alison Liebling (eds), Legitimacy and Criminal Justice: An International Exploration (OUP 2013) 83; Tom Tyler, Why People Obey the Law: Procedural Justice, Legitimacy and Compliance (Yale UP 1990).

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An Empirical Analysis of International Criminal Law   23 on the institution that has tried them, and that the account of their experience should enable us to better understand how international criminal tribunals work. Indeed, their actual experience of the judicial system ‘does not only provide information on these persons’ paths, representations, failures and practices; it also provides information on the functioning of the penal system, what needs to be fixed and which are the blind spots’.10 In addition, by interviewing persons who have been tried by international criminal tribunals, we can better assess the impact of the tribunals beyond the trial. With this assumption in mind, we developed a specific approach for the analysis and understanding of international criminal justice (an approach that complements the other approaches for this field of study), which we named the Respondents’ approach.11 In the second part of this chapter, we present some epistemological milestones that support our approach and introduce the methodological choices that have guided our research (II). In the third part, we present some of the results of our study (III). As will be seen, these question the effectiveness and the impact of international criminal justice.

II.  Listening to the Accused as a Vector of Knowledge A.  Epistemological Approach An epistemological introduction appears necessary to support our approach and ­perspective. First of all, it is worth bearing in mind that the point of view and the ex­peri­ ences of social actors have not always been recognized in the construction of scientific knowledge, and that such recognition is still controversial in some academic circles. Alongside quantitative studies with an objectivist vocation (that had hitherto dom­in­ ated the field of sociology), qualitative research came to prominence in the 1920s when empirical research emerged and led to new data-collecting methods, such as observation and interviews. Following the work of renowned US scholars W.  T.  Thomas, G. H. Mead or H. Garfinkel, sociological research began to take into account ‘the point of view of actors, their experience, the sense that they give to their behaviour, the manner in which they apprehend their environment, the way in which they occupy the institutions which support or manage them’.12 In this sense, subjectivity and partiality were no longer seen as a bias in research, but as an opportunity to produce substantial

10  Dan Kaminski and Michel Kokoreff (eds), Sociologie pénale. Système et expérience: pour Claude Faugeron (Eres 2004) 12. 11 Marie-Sophie Devresse and Damien Scalia, ‘Hearing Tried People in International Criminal Justice: Sympathy for the Devil?’ (2016) 16(5) Intl Crim L Rev 796 (hereafter Devresse and Scalia, Hearing Tried People). 12  ibid 818.

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24   Marie-Sophie Devresse and Damien Scalia data. That material, when rigorously analyzed, can tell us a great deal about society and provide knowledge about institutions. In the same vein, how to consider the person on trial has long been controversial and still polarizes in academic work. The lawyer generally views the individual as someone who is either accused, condemned, guilty, or innocent, not as someone who can as such tell us anything interesting. By contrast, the critical criminologist or empirical researcher will see ‘a person brought to justice’ as someone who, through this very ex­peri­ence, has something to say about justice itself. No longer the passive object of positivist research, the defendant can be seen as an active player in the production of know­ledge regarding the construction of social reality. We propose, therefore, an analytical model that wishes to distance itself from objective conceptions of social reality by defending the idea, supported by P. Berger and T. Luckmann, that this reality is the product of a permanent construct and ‘is characterized by intersubjectivity which refers to the coexistence of multiple realities’,13 like the reality of our respondents, as much as ours.14 However, if this view has gained ground and is now commonly recognized in social sciences, considering the experience of the accused still elicits substantial resistance in research on the trial and judicial institutions, resistance that comes mostly from lawyers. Whilst there is by now no difficulty in taking into account what a judge, a prosecutor, an attorney, or a victim may say in the context of research studies on trial, meeting with those accused of crimes—a fortiori some of the greatest crimes—to listen to her/his appraisal of the administration of justice is still viewed with scepticism, even frowned upon. Seen perforce by some academic commentators or reviewers of our work15 as liars, manipulators, or as always trying to justify themselves, said ‘perpetrators’ are not regarded as capable of reporting credible information about criminal justice. This is not a revelation; H. Becker analyzed this attitude a long time ago, stating that ‘credibility and the right to be heard are differentially distributed through the rank of the [social] system’.16 Criminal justice is not beyond a pyramidal distribution of power, and we very much tend to find the person accused of a crime as sitting at the bottom of the ‘hierarchy of credibility’.17 Indeed, we found that people charged with ‘genocide’ are located even lower, whether they were previously powerful individuals or not. The type of research proposed in this chapter is premised on the necessity to overcome this controversy and to embrace, instead, a more open approach. The crux of this approach is that we do not characterize the people we meet on the basis of the crimes for which they are tried.18 We just see them as individuals who have something to say about the justice process and we avoid framing their conduct at the outset within legal 13  Pieter Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (Anchor Books 1966) 23–5. 14  Devresse and Scalia, Hearing Tried People (n 11) 824. 15  About the context and the statement of these perceptions, see Devresse and Scalia, Hearing Tried People (n 11). 16  Howard S Becker, ‘Whose Side Are We On?’ (1967) 14(3) Social Problems 241. 17  Howard S Becker, Sociological Work: Method and Substance (Aldine 1970) 127. 18  It is important to highlight that—in order to conduct our research study—we met individuals after definitive condemnation of acquittal. That being said, the Respondents’ approach could be applied to people during trial.

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An Empirical Analysis of International Criminal Law   25 cat­egor­ies. This is an approach, in other words, that re-empowers the accused for ­scientific purposes. Although the latter are typically seen as having been very ‘active’ in relation to their criminal acts, they are often assigned a very passive role in the course of criminal proceedings. Furthermore, the various meanings of the term ‘respondent’ offer a particularly interesting and multidimensional perspective. First, because criminal justice asks the defendants to respond to certain allegations, to explain themselves about their activities, this is precisely why we are and should be interested in their experience. Second, we met with people who often chose to respond to our requests and to answer our questions indicating a willingness to contribute, in their own way, to knowledge-construction about international criminal justice. In this context, the words of respondents raise many questions and highlight issues that otherwise might not have been brought to light such as the ‘rise and fall’ effect of an arrest, the sensation of being the ‘fall guy’ of episodes of criminality, the ‘violence’ of the judicial system, etc.

B. Methodology In terms of methodology, our findings are based on two qualitative studies that were carried out successively.19 About 60 semi-structured individual interviews were conducted in the course of these two studies, with an interpreter when necessary. When possible, the place of the interview was chosen by the respondents; however, for most of them, having been convicted, it had to be the prison in which they were serving their sentences. To our knowledge, the interviews conducted have not been placed under audio surveillance nor have they been visually monitored. The topic of the international criminal proceedings in their entirety (from the moment of arrest to the serving of the sentence), and questions about the rights and procedures relating to each individual case were addressed with the respondents. The interviews lasted from 60 to 270 minutes and, with the consent of the respondents, the majority of them were recorded. All of them were then transcribed verbatim and analyzed. Our analysis was mainly based on coding procedures taken from the grounded theory approach,20 with the aim of describing structures and consistencies, and to elaborate hypotheses built on observed reality.21 In other words, it is a matter of progressively interpreting empirical findings using various techniques of data reduction, organization, and conceptualization. This is ‘an iterative approach of progressive theorization of a phenomenon’.22 For ethical reasons, the anonymity of the respondents was guaranteed. 19  The first study has been carried out by Damien Scalia and Mrs Mina Rauschenbach, doctor of social psychology. The second study is carried out in cooperation with the author and Professor M-S Devresse from the Catholic University of Louvain. 20  Barney Glaser and Anselm Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research (Transaction 2006). 21  Anne Laperrière, ‘La théorisation ancrée (grounded theory): démarche analytique et comparaison avec d’autres approches apparentées’ in Jean Poupart and others (eds), La recherché qualitative, Enjeux épistémologiques et méthodologiques (Gaëtan Morin 1997). 22  Pierre Paillé, ‘L’analyse par théorisation ancrée’ (1994) 23 Cahiers de recherche sociologique 147.

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26   Marie-Sophie Devresse and Damien Scalia In terms of the people we met, we should mention that, whereas the International Criminal Tribunal for the former Yugoslavia (ICTY) has judged individuals coming from all sides of the conflict that devastated the former Yugoslavia, the International Criminal Tribunal for Rwanda (ICTR) has judged only Hutus accused of having played a part in the 1994 genocide. As a result, the participants of our study of the ICTY came only from some horizons (Bosnians, and Serbs from Serbia or Bosnia), whilst for the ICTR we met only with individuals of Hutu origin.23 In both contexts, those we met were political leaders (at a national, regional, or local level), high-ranking officers, heads of administration, as well as individuals active in the field, such as combatants and civilians. Some having intermediate positions within the military hierarchy also participated in the research. Considering the small number of women brought before the inter­nation­al criminal justice system (and our dependence on their motivation to meet us), only men were interviewed. Among these men, nine participants had been acquitted, whereas the others had been condemned under command responsibility, for participation in a ‘joint criminal enterprise’, or for having directly committed (or been an accomplice to)24 crimes against humanity, war crimes, and genocide. Finally, it is important to highlight that, as required in many qualitative research studies, the sampling of our respondents is not representative but follows a diversification principle (i.e., in terms of institutions, crimes, forms of responsibility) and pursues a saturation goal, two standards that allow production of general results.25 In this type of qualitative study, we do not aim at representativeness (which would have little meaning for such a limited audience). It is more important to have a sample that contains a great diversity of profiles, so as to include a very broad spectrum of experienced situations. As said before, we were also constrained by acceptance on the part of those solicited.

III.  Positioning of Those Tried: A Structural Interrelation In recounting their experiences, those convicted by the International Criminal Tribunals expressed overwhelmingly paradoxical feelings: they acknowledged having 23  Participants present themselves as such. 24  The forms of responsibility are mentioned in Articles 7(1), 7(3) and 6(1), 6(3) respectively from the ICTY and ICTR Statutes. See Statute of the International Criminal Tribunal for the Former Yugoslavia, UNSC Res 827, UNSCOR, 48th Sess, 3217th Mtg, UN Doc S/RES/827 (25 May 1993); Statute of the International Criminal Tribunal for Rwanda, UNSC Res 955, UNSCOR, 49th Sess, 3453rd Mtg, UN Doc S/RES/955, (8 November 1994). 25  Alvaro Pires, ‘De quelques enjeux épistémologiques d’une méthodologie générale pour les sciences sociales’, in Jean Poupart and others (eds), La recherché qualitative, Enjeux épistémologiques et méthodologiques (Gaëtan Morin 1997).

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An Empirical Analysis of International Criminal Law   27 been in the trial, but felt totally outside of what was going on in the justice process. They often said that they did not understand what was really happening and that they felt like the prosecutor or the judges were talking to someone else. This perception of being an alien to a judicial process may not be obvious for those who felt they had an informed knowledge of what criminal justice entails. In many cases, at one time or another, those interviewed had held a position of high political responsibility and frequently told us, as we started our interviews, that they had expectations about the judicial process. It is thus essential to highlight the reasons for this sense of rejection, particularly because one of our most significant findings is that criticism was equally strong among the convicted and the acquitted, even though one could have expected the latter to show greater satisfaction in a system that ruled in their favour. This part will therefore cover four points. First of all, there is a difference between the respondents’ expectations and the reality they experienced (A). Furthermore, the participants explained how they experienced the procedure as ‘violent’ (actually and symbolically) (B); and saw themselves as being confronted with a politicized and external justice (C). Last, we will explore how the role that is assigned to them within the criminal procedure is related to the radical rejection of the figure they embody (D).

A.  A Gap Between Expectations and Reality From Aristotle to Rawls, numerous theorists have shown that there is no unified conception of justice. It thus seemed promising as a starting point to examine what our interviewees’ initial concept of justice was. We noticed a significant individual positioning in relation to international criminal justice. By this we mean a conception of justice that pre-existed their prosecution and that seemed to have led them to expect a better performance than what they experienced. This conception mainly pertains to ‘moralhumanist’ referents. When the participants expressed how they perceived justice before being directly brought to it, they referred to some moral values and conceptions of just­ice that were relatively well constructed. They expressed beliefs in higher principles of justice, a justice that must be beyond reproach and that aims to establish the truth. One of the participants explained, ‘I thought the tribunal was a high-level international institution that was going to fight for the truth, and I thought I would be able to explain and prove my truth in the court’.26 Another one spoke of an institution created at the ‘highest legal level’. One of them even compared international judges to ‘gods’, referring to a belief that justice is above men and rules for the ‘Just’. Their expectations of international just­ice were thus set very high and were well elaborated. This justice is considered even more important in light of the chaotic context that brought the respondents to the tribunals. Yet, this representation of international criminal justice (partly related to the prestige granted to the international criminal justice system itself and the decorum that comes 26  In order to highlight the respondents’ discourses, we use italics here unlike the other quotations.

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28   Marie-Sophie Devresse and Damien Scalia with it) clashed violently with the reality of the accused as they experienced it, leading these initial expectations to be bitterly disappointed. This reality has been described in very negative terms: ‘It was not a very fair court, when it handled my case . . . I found that very unfair from the Tribunal’. Again: ‘What I found very unfair from the Tribunal is that you had to wait for a year, a year and a half, and nothing happened, the trial did not begin’. Another one added: ‘I have to accept this as something that came directly from hell’. This disappointment induced a heavy sense of rejection by the criminal justice system and its professionals. This observation confirms the hypotheses of studies carried out at a national level, namely by J.D. Casper,27 that show that the gap between expectations and experienced reality constitutes a fundamental component of the negative evaluation of justice. That being said, what are the specific details related to the experience of those tried that create such a sense of rejection?

B.  Violence and Unfairness of the Procedure The people we interviewed, whether condemned or acquitted, invariably felt the ex­peri­ ence of the international criminal trial, and its preliminary proceedings and developments were extremely difficult to deal with, ranging from tough to traumatizing. The fact that even the acquitted shared this feeling shows that there is no need to be convicted to strongly experience the harshness of the intervention of justice.28 An interviewee tried by the ICTY chose his words carefully in response to our question, ‘how did you experience the court from the inside?’ He answered with this strong statement, ‘I can answer you with one word: horrible. And I can answer you with many other words’. That being said, the range of experiences appears quite wide, even if physical violence is rare. Specifically, there are reports of ‘degradation ceremonies’, analyzed by H. Garfinkel as a ‘communicative work direct to transforming an individual’s total identity into an identity lower in the group’s scheme of social type’.29 According to H. Garfinkel, the purpose of these ceremonies is shaming that person for (supposedly) violating norms, rules, or laws, and to inflict punishment by taking away his/her rights and privileges. Thus, a convicted Bosnian told us of the conditions of his transfer to The Hague: After two days in a basement, I was transferred to the central jail in X. I had visits from many stakeholders, they told that I have to go to The Hague, and I just went along with it. I expected that I would go some normal way, but one evening, around 6 o’clock, 27  Jonathan D Casper, Criminal Courts: The Defendant’s Perspective (US Department of Justice, Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, 1978); Jonathan D Casper, ‘Having Their Day in Court: Defendant Evaluations of the Fairness of Their Treatment’ (1978) 12 Law and Society Rev 237. 28  See e.g., Christian-Nils Robert, L’Impératif sacrificiel. Justice pénale: au-delà de l’innocence et de la culpabilité (Editions d’en bas 1986) (hereafter Robert, L’Impératif sacrificiel). 29  Harold Garfinkel, ‘Conditions of Successful Degradation Ceremonies’ (1956) 61(5) American J of Sociology 420.

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An Empirical Analysis of International Criminal Law   29 I  was tricked and pulled out of the cell where I was, under the excuse that the jail ­administrator summoned me for a conversation. Since I was wearing shorts when I was brought out of my apartment and I had some kind of yellow t-shirt and they did not allow for any other clothes to be brought in the jail from home, dressed like that in shorts and t-shirt and in my slippers, I was transferred to The Hague. It was June, it was warm, but . . . It was difficult, especially when we landed in Amsterdam, when some 3–5 officials from the UN received me, they were nicely dressed, and I looked like a homeless person.

This unfolding of violence that is part of ‘degradation ceremonies’ directly reflects the spectacular dimension that has been associated with international criminal ­justice from its beginning. However, this violence is symbolic most of the time and appears throughout the entire criminal proceeding. Participants even mention ‘­horror’ or use terms like ‘terrible’, ‘stressful’, ‘frustrating’, to describe various moments they experienced during the judicial process. Here the acquitted points out how most steps of the process (arrest, indictment, detention, trial, and so on) have represented hurtful moments, which generated anxiety and very negative emotions (loss of autonomy; feelings of helplessness; separation from their families; unbearable selfimage; failure to understand the judicial process, its functioning, and its effects; feelings of not being understood; contempt from the judicial staff; feelings of betrayal from relatives; etc.). One moment stands out as more violent than the others: the moment they became aware of the charges against them. It is often described as a moment of dismay: When I read the first indictment, I could not believe it . . . that such men could exist and, let alone the fact that it was me. Maybe only in some American movie, with lots of murders, in situation that didn’t exist. I then realized that I was supposed to be a man who eats live people. I am sitting in my cell and thinking to myself, who am I? And that was my understanding of the indictment.

As described to us, this distressing, unbearable moment was felt as fundamentally unfair, both by the acquitted and the convicted, particularly in relation to the use of symbolically heavy words (‘genocide’, ‘massacres’, ‘mass violence’, etc.) that were difficult for respondents to comprehend and to accept. We will come back later to the situation that confronts the prosecuted with the collective crimes he is charged with. Beyond this symbolic violence, throughout our interviews the prosecuted insisted on explaining to us how they were confronted with what they described as an unfair, in­equit­able, and sometimes ‘absurd’ process. Here again, the acquitted—by both tribunals—told their stories in an equally negative way, as if the outcome of the trial had no impact on their perception of it. The participants thus described procedures they still did not understand, or during which they felt they had not been able to express themselves or been listened to. They highlighted what they saw as the ‘lies’ of the prosecution and the witnesses, the length and difficulty of the trial, and claimed that the prosecution witnesses were prepared and paid a high price in order to accuse them.

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30   Marie-Sophie Devresse and Damien Scalia These accounts confirm studies carried out at a national level that show that the ­ erception of justice depends more on the fairness of the procedure (or the perception p of it) than its final outcome.30 People consider their trial to be satisfying and fair if they feel they had the occasion to fully explain themselves and their points of view, whether these points of view were then followed by the judges or not. Thus, in many cases, the satisfaction of the defendants does not depend solely on the severity (or lenience) of the sanction; rather, criminal proceedings matter more than the outcome, and the accused, even those convicted, may be satisfied by the process as they experienced it. However, satisfaction with the fairness of proceedings was clearly absent for those convicted persons we interviewed. Moreover, this negative perception related to every step of the process.

C.  A Politicized and ‘Outgroup’ Justice Another recurring feature in the accounts of those tried by international criminal jurisdictions is what they perceive as its politicized character and the external influences it is subjected to. First of all, participants describe a justice owned by ‘others’, that means by people external to the context in which the crimes were committed. They confirm here the ­theory of Pierre Hazan who has written about international criminal justice as an ‘­off-ground’31 justice. This distance, which separates the ‘judges’ from the accused, appears at every step of the criminal proceedings: during the arrest (they are rarely arrested by compatriots—and often in a foreign country), during the trial (judges come from various countries, sometimes very distant ones), and when serving their sentences (which is enforced in the States that have agreed to host those convicted by international jurisdictions). Referring to the ICTR, one of the participants explains: They created the tribunal and they brought foreign people. Foreigners who are not driven by this principle of justice . . . foreigners who know nothing, nothing of the Rwandan psychology. When a Tutsi speaks to me . . . if s/he tells me a story, and then tells it to you, do not be mistaken, you won’t perceive this story the same as I will . . . and in the tribunal cases, us, Rwandan people, are judged by foreigners whom I call blind people who know nothing inherent to the context . . . . You might apply the rules, but you cannot understand.

Another interviewee compares the ICTR with national mechanisms, reckoning that in Rwanda ‘there has been the “Gacaca” tribunals, in which everything was addressed’ 30  Tomas Ståhl, Jan-Willem Van Prooijen, and Riël Vermunt, ‘On the psychology of procedural just­ ice: Reactions to procedures of ingroup vs. outgroup authorities’ (2004) 34 European Journal of Social Psychology 173 (hereafter Ståhl, Van Prooijen, and Vermunt, On the psychology of procedural justice). 31  Pierre Hazan, La justice face à la guerre (Stock 2000) 240.

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An Empirical Analysis of International Criminal Law   31 (unlike in the international tribunal).32 The ability to recognize oneself in one’s judges, of being placed among one’s own, seems particularly important for the accused. Thus, the reducing of the distance operated by the Gacaca in the justice process appears as a strong element of its legitimacy. In a similar vein, the account of a confrontation with a ‘foreign justice’ (namely, a just­ ice external to their group—as the Arusha or the The Hague tribunals are seen by those prosecuted by them), is reminiscent of the studies carried out by T. Ståhl, J.W. Prooijen, and R. Vermunt on the perception and the experience of outgroup justice v. ingroup just­ice. These writers have shown that, when confronted with an ‘outgroup’ justice, ­people may be more afflicted by the procedural justice than when confronted with an ‘ingroup’ justice.33 In international criminal law, this is a significant issue because procedural justice seemed essential for the people we interviewed. International criminal just­ice appeared to them as a foreign justice: it was administered thousands of kilometres away, in a country that was neither the perpetrators’ nor the victims’, nor the country in which the alleged crimes were committed.34 It is even more striking that, in the research that was carried out at a national level, those who were convicted domestically did not express a feeling of otherness, and frequently mentioned the idea of ‘being in debt to society’, recognizing being part of the group who judged them and belonging to a community to whom they were accountable.35 Moreover, all participants mentioned the idea of a politicized justice. First of all, they felt the international criminal tribunals were mainly established for political purposes and were influenced or even led by their war enemies. As such, people tried by the ICTY considered that, because of their own origins, the composition of the tribunal was not favourable to them. Here are some examples of their accounts mentioning this point: I cannot say that the Tribunal in its whole has done bad things, but I only say that the people who constituted the appeal chamber have done bad things. In my opinion, it is the result of the Croatian propaganda and of the pressure from the Croatian state.

Another explains: I say that, regarding my situation, the people who wrote the indictment, have been influenced by lobbies, they have their own interests . . . my conclusion was that they needed to create some balance, you know, between both sides . . . When I speak of sides, I mean the Serbian and Bosnian sides . . . so my feeling was that they wanted to feed this Serbian lobby, the lobbyists, and to satisfy them: I needed to be designed as the one who slaughtered the Serbian people. 32  The ‘Gacaca’ are made up of people elected for their good reputation and honesty. The defendants do not have a lawyer, but all the villagers can participate and intervene. 33  Ståhl, Van Prooijen, and Vermunt, On the psychology of procedural justice (n 30). 34  For more details: Damien Scalia, ‘Expérience de justice internationale pénale: perception de dom­ in­ation par d’anciens dominants’ (2015) HS Revue québécoise de droit international 15. 35 Marie-Sophie Devresse, Usagers de drogues et justice pénale. Constructions et expériences (De Boeck-Larcier 2006) 241–54.

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32   Marie-Sophie Devresse and Damien Scalia Or again: ‘The ICTY and the prosecution do not make an indictment for justice purposes, but rather for political purposes’. Those who were tried by the ICTR produced identical accounts, based on the fact that no leader from the Rwandan Patriotic Front (against which they fought from 1990 to 1994 and that is today in power in Rwanda) has been judged by the ICTR. They therefore not only denounced a justice influenced by Rwandan state power, but also the fact that none of their former enemy had been judged: [At the beginning], it was the government who made the list of people to be arrested. . . . And when Rwanda took hold of the ICTR, because at one moment, they took hold of the ICTR . . . I say it took hold, because when Barayagwiza was released and then Rwanda said no! So from that moment, Rwanda took hold of the ICTR.

Another explains that: ‘It is like the judges received orders from somewhere; it is a political tribunal’; or, ‘[t]he judges became active combatants of the RPF. . . it is a shame that such an institution became’. For the people we interviewed, these points of view are the result of a difference in the way their cases were being handled by international tribunals, depending on the origin of the defendant. International criminal law appeared to be a criminal law owned by the enemy. These criticisms reflect some of those we can find in the literature,36 even at times written by judges themselves: it is the suspicion of victor’s justice, a justice administered by the people who won the war.37 International criminal law is seen as a con­tinu­ ation of war, a new weapon on a new battlefield. Indeed, some authors have even argued—speaking about the ICTR, ICC, or international criminal law in general—that only those who are defeated in the conflict (the former enemy) must be accountable before international criminal jurisdictions. For example, F. Muñoz Conde claims that international criminal law ‘[does] not simply try to punish the offenders, but also to fight against its [own] enemies’.38 International criminal law thus becomes a weapon for use after victory—a weapon that further destroys those who are already ‘down’. This point of view reminds us of the work of G. Jakobs in On the Theory of Enemy Criminal Law39 that has proved influential.40 Quoting Jakobs, Muñoz Conde writes that judicial

36  Thierry Cruvellier, Le Tribunal des vaincus, Un Nuremberg pour le Rwanda (Calmann-Lévy 2006). 37  Radhabinod Pal, ‘Dissenting opinion’ in C F Rüter and Bernard Victor Aloysius Röling (eds), International Military Tribunal for the Far East, The Tokyo Judgment, 29 April 1946–12 November 1948, vol I (APA-University Press Amsterdam 1977). 38  Francisco Muñoz Conde, ‘Le droit pénal international est-il un “droit pénal de l’ennemi”?’ (2009) 1 Revue de science criminelle et de droit pénal comparé 19 (hereafter Muñoz Conde, Le droit pénal international). 39  Gunter Jakobs, ‘Aux limites de l’orientation par le droit: le droit pénal de l’ennemi’ (2009) 1 Revue de science criminelle et de droit pénal comparé 7. 40 Jean-François Dreuille, ‘Le droit pénal de l’ennemi : éléments pour une discussion’ (2013) Jurisprudence 149 ; Geneviève Giudicelli-Delage, ‘Droit pénal de la dangerosité – Droit pénal de l’ennemi’ (2010) 1 Revue de science criminelle et de droit pénal compare 69.

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An Empirical Analysis of International Criminal Law   33 logic mirrors the logic of war, ‘it is above all essential to defeat the other, and law is a means used to finish the enemy’.41 Moreover, some people we interviewed condemned what they viewed as a very peculiar political and legal system that was imposed by Western countries on the rest of the world. They mainly highlighted two arguments: the fact that no leader or national from developed countries has yet been judged by an international body and the fact that these tribunals are precisely controlled by developed countries. Joining here a third-world or anti-colonialist interpretation of international criminal law,42 people (tried by the ICTY here) thus explained: Great powers like China, Russia, or the United States agree without signing. They do not wish to be submitted to this. That is how the ICTY works. It is a partisan vision. Serbia started a procedure against NATO for similar and even far worse crimes than the one I was charged with, the ones committed in Kosovo. A commission has been established for this purpose and has repeated the allegations against NATO. It is the bombing of a bridge because of a situation 1000 km away that was Kosovo, and civilians have been targeted. 33.000 tons of explosive material have been used in Serbia by NATO and the damages are estimated at 97 billion.

Or again: ‘That is why I have an impression that what went on there is not law, is not a decision based on law, but it is some kind of a game by strong political forces that form the tribunal’. It is interesting that those tried by the ICTR gave broadly identical accounts: I cannot say this is a case of racism, because among the judges, there are African ­people, there are black people at the ICTR. Some people may think it is the motive, but I say that it is not . . . it is more likely pressure from the Rwandan government and its allies.

Or: The ICTs are only accountable to the people who pay them. Whereas national justice, even if there are some violations, is accountable to the people, they administer justice on behalf of the people. If you are a judge and you are neutral, everything is fine, but if you are partial . . . … The outcome, because, the outcome in the end, we understand that they are political rulings, those are tribunals manipulated by powerful countries. Why do the Americans not want their citizens to be judged by international tribunals? . . . because they know!43 41  Muñoz Conde, Le droit pénal international (n 38) 22 (emphasis added). 42  Christopher Gevers, ‘International Criminal Law and Individualism: An African Perspective’ in Christine Schwöbel (ed), Critical Approaches to International Criminal Law: An Introduction (Routledge 2014) (see also other contributions in this book). 43  We should note here that, despite the criticisms, some people tried by the ICTR feel an inter­ nation­al tribunal is better than national jurisdictions ‘under the authority of the power’. In this view, we

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34   Marie-Sophie Devresse and Damien Scalia This criticism also mirrors several criticisms raised against international (criminal) law coming from African States, the African Union, and scholars. Indeed, when the ICC issued warrants against state leaders from Sudan and Kenya, the African Union denounced it as a ‘racist’ court and called on States not to cooperate with it.44 However, it is also interesting that this criticism quite specifically focused on lobbies and pressure from States rather than being rooted in a broader critique of imperialism and colonialism.

D.  The Role Assigned to the Defendant As can be seen, those tried by international criminal tribunals have presented us with various pitfalls relating to international criminal justice and have outlined the issues they have been confronted with throughout the proceedings. Beyond this experience, the analysis of these accounts allows us to highlight the frequently used rhetoric of scapegoating. This section will highlight that rhetoric although it will not enumerate all of the ways in which sacrificial rituals occur (we previously referred to the degradation ceremonies of H.  Garfinkel, which reflect in another way the sacrificial rites of R. Girard), or present in any detail the theory of sacrifice, something that has already been done elsewhere.45 Nor do we intend to present all the participants as victims of international criminal justice. We merely aim to point out that at a given moment of the process, people ceased to be able to experience the criminal proceeding in a way other than by positioning themselves as ‘scapegoats’—condemned for others, or for crimes committed by others or collectively. Beyond that point, the question of innocence or guilt appears almost secondary. The ‘scapegoat’ role endorsed in the trial suddenly takes precedence over reality. Everything happens as if that role operated at a distance from any truth.46 This caused a rejection of the actions and facts established by the judicial system and thus a rejection of allegations of responsibility. Ironically, the defendants are often accused of having resorted to scapegoating themselves. This feeling of being a scapegoat appears equally among those convicted and acquitted. Thus, some of the participants do not hesitate to present themselves as victims, not of the conflict but of the judicial process: ‘The death of an innocent person does not justify see that geographic proximity is no longer sufficient to define the in-group as in national criminal justice. The definitions of allies and enemies in the war sometimes take over all other considerations about propinquity. 44 ‘South Africa Reverses Decision on Arrest of Sudan’s Al Bashir’ Sudan Tribute (30 July 2009) accessed 7 September 2018. On the ICC and Africa, see e.g., Jacques B Mbokani, ‘La Cour pénale internationale: une cour contre les Africains ou une cour attentive à la souffrance des victimes africaines?’ (2014) 26(2) Revue Québécoise de Droit International 47. 45 See e.g., David Tait, ‘Popular Sovereignty and the Justice Process: Towards a Comparative Methodology for Observing Courtroom Rituals’ (2001) 4(2) Contemporary Justice Rev 201; Edwin Bikundo, ‘The International Criminal Court and Africa: Exemplary Justice’ (2012) 23 Law and Critique 21 (hereafter Bikundo, The International Criminal Court and Africa). 46 Robert, L’Impératif sacrificiel (n 28).

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An Empirical Analysis of International Criminal Law   35 the lynching of other innocent people by the justice. . . . I am first a victim of the conflict in Rwanda, and then a victim of the United Nations’. Another said: ‘We were so much demonized that even as acquitted . . . some countries are hesitant over receiving us’. This feeling of being a scapegoat appears at two levels. It first relates to the criminal proceedings: those tried feel they are in a position of weakness in the courtroom, dom­ in­ated by the judges, guilty from the outset, prevented from speaking, and not listened to. More relevant is the importance that respondents place on the global or international context of the proceedings: participants feel their sentence is the consequence of current international relations and power struggles (as we previously mentioned). Thus, the feeling of being a scapegoat is even more significant when it comes to the political process: a process that, if we follow R. Girard, has experienced a serious crisis and in the face of which it is necessary47 to find rites that allow it to rebuild itself through sacrifice. Thus, the criminal trial, in the context of armed conflict, is the means to a catharsis in which the defendant (and the convicted even more) plays an essential role in a sacrificial game that enables the reconstruction of social relationships between former enemies. Having played this role, defendants point out how this position was the cause of tensions. One tension is due to the opposition between the collective dimension of the crimes and individual responsibility. This is a fundamental issue that the doctrine of international criminal justice has long sought to address,48 one that questions the tension inherent in bringing individuals to justice for crimes committed in the context of collective conflicts. We do not intend to delve into the reasons that led to the implementation of certain judicial mechanisms, such as individual responsibility for mass crimes.49 The point here is merely to highlight the impact this responsibility seems to have on individuals convicted for these crimes. It is precisely because of this tension that those tried by international criminal justice invoke the scapegoat metaphor when speaking of their cases. For example, those tried by the ICTR constantly reminded us that not all of the perpetrators had been judged and that it would be impossible anyway. On the other hand, some people we met were really convinced, despite any plausibility, that there were quotas set in the lawsuits, (‘x% of Serbians, x% of Bosnians had to be prosecuted’) and that they were part of this ratio.

47  René Girard, Le bouc émissaire (Grasset 1982); Bikundo, The International Criminal Court and Africa (n 45). 48  Frédéric Mégret, ‘Les angles mort de la responsabilité pénale individuelle en droit international’ (2013) 71(2) Revue interdisciplinaire d’études juridiques 83 (hereafter Mégret, Les angles mort); Karine Wurtz, ‘La responsabilité du génocidaire: entre responsabilité individuelle et responsabilité collective’ (2006) 39(2) Criminologie 59; Françoise Digneffe, ‘Crimes de masses et responsabilité individuelle’ (2005) Champ pénal/Penal field, XXXIVe Congrès français de criminologie, Responsabilité/ Irresponsabilité Pénale accessed 5 September 2018. 49  See Mégret, Les angles mort (n 48); Élisabeth Claverie, ‘Mettre en cause la légitimité de la violence d’État’ (2012) 78 Quaderni 67 (in that regard, E. Claverie highlights that it is ‘difficult, or even absurd . . . to describe a genocide, war crimes . . ., “crimes against humanity” . . . through the sum of unrelated individual decisions with no coordination’ at 76).

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36   Marie-Sophie Devresse and Damien Scalia Moreover, this hegemonic individual responsibility50 explicitly refers to the ‘­sacrificial imperative’ as described by R. Girard51 in which, in order to rebuild the ­society after a major crisis, it is essential that the ‘expiatory’ victim52 brings about unanimity against her/him.53 From the point of view of the defendants we met, this is what happens in international criminal law and paradoxically, by not recognizing the actions for which they were brought to justice, they in fine perfectly fulfilled their role and complied with the judicial process. Indeed, among the 51 convicted participants, only two of them explicitly mentioned and recognized a direct responsibility for the actions for which they were sentenced. In fact, through their experience, those convicted by international criminal jurisdictions point out that they find themselves in an impossible position. The violence and the politicization of the process lead them to take a position ‘outside the system’ even as they are required to take part in the trial as insiders. Violence and politicization are factors that bring them to their downfall as ‘expiatory’ victims too. Summoned to speak on their individual behalf about issues they perceived and ex­peri­ enced as collective ones, they reject any individual responsibility and, in fact, any responsibility ‘as an individual’. Our research thus helps to understand how the individual positioning of the accused is closely linked to institutional categorization, to judicial expectations, but also to the constraints induced by the procedure. This is especially the case when the court refuses to fully recognize the impact of a collective dynamic or a hierarchy on the individual’s choice. Being unable to assert the complexity of their situ­ ation in the collective context of war during the trial, they end up simply denying all responsibility. In so doing, they in a way further reinforce the very image that is being produced about them. They are monsters who recognize nothing, an ideal enemy that will help to federate everyone against him and thus recreate community. This analysis raises questions. How can we expect the expression of a real recognition of responsibility in a context that, as we have seen, mirrors the war logic or, at least, is experienced as a form of war logic? As explained by F. Digneffe, ‘[T]he ways of perceiving and recognizing—or not—our own responsibility appear only in the context of a relatively “free” world, out of pressure and with no worries about possible implications’.54 Again and again, those we met kept repeating that their words, within the crim­ inal trial framework, were restricted by the high stakes of their situations and were in no way free. It is possible, then, that the logic of the trial actually makes it harder if not impossible for defendants to come to terms with their responsibility, as the case may be. Further questions that arise at the conclusion of this analysis are therefore: whether the 50  Mégret, Les angles mort (n 48) 98. 51 Robert, L’Impératif sacrificiel (n 28). 52 Larry Cata Backer, ‘The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment’ (2003) 21(3) Penn State Intl L Rev 509. See also Damien Scalia, Du principe de légalité en droit international penal (Bruylant 2011). 53 Robert, L’Impératif sacrificiel (n 28) 140. 54  Françoise Digneffe, ‘Attribution de responsabilité et sentiment vécu de responsabilité—Réflexions sur les contours de la responsabilité pénale à propos du genocide au Rwanda’, in Françoise Digneffe and Thierry Moreau (eds), La responsabilité et la responsabilisation dans la justice pénale (De Boeck-Larcier 2006) 418.

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An Empirical Analysis of International Criminal Law   37 international criminal trial does not lead, in itself, to this contrarian positioning of the defendants (in particular the non-recognition of the alleged responsibilities)? At what cost to both criminal and transitional justice? And whether the trial is not speaking directly to everyone except the very person facing charges.

IV. Conclusion International criminal justice, analyzed from various points of view, has hitherto rarely been addressed from the experience of the ones who encounter it as defendants, whether they were convicted or acquitted. Indeed, the stigmatization that is inherent to every criminal proceeding seems to reach its climax when it concerns people accused of the ‘most serious’ crimes, to the point that it appears nearly subversive to listen to them speak of something other than their crimes and to consider them as a source of know­ ledge about the trial itself. At the start of this analysis, we aimed first to recognize a status of real stakeholder, of ‘active respondent’ (in the various meanings of the term), to those brought to justice, rather than seeing them only as ‘perpetrators’. From this internal point of view, we then aimed to better understand the functioning of international justice as it has recently been implemented, how it is perceived, and the way it impacts the people who were indicted by it. Through our empirical research, we were then able to highlight several details specific to international criminal justice, details that distinguish it from criminal justice administered at a national level. We will review two of them in our conclusion. The first refers to the way the very idea of justice is defended by these tribunals. Our respondents, far from considering themselves as being ignorant in terms of justice, proved themselves to be open to the idea of a trial. Several of their expectations, however, were not met in the process. The second and more significant element is that their disappointment does not relate to the outcome of the trial (condemnation or acquittal) but rather focuses on details specific to the criminal proceedings, specifically on the symbolic and real violence that seems inherent to numerous facets of the trial, as well as the passive position necessarily held by the defendant. Indeed such criminal proceedings work on the basis of two principles: (a) the ‘outside feeling’ of the defendant and the continuous emphasis on his/her otherness, as well as (b) the predominance of a dynamic of conflict all along the process. If these two principles are common to all repressive processes, they gain a special meaning in a transitional environment. Indeed, there is much to the idea that the crim­ inal trial represents the extension of war: the experience of physical or symbolical violence, the war rhetoric of the trial, the staged confrontation, the reference to the monstrosity of alleged crimes and the radical otherness, the concealment of the col­lect­ ive stake behind the individual accusation, the manifestation of power, the antagonistic dimension of the process, etc. Translated into a subjective experience, this extension tends to imprison those brought to international criminal justice following a war,

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38   Marie-Sophie Devresse and Damien Scalia constantly underlining the influence of political structures over the process, as well as the inability of defendants to feel as if they belong to the world that judges them. In this context, the reference by our respondents to the notion of scapegoating casts the defendants as victims. Though this reversal of roles may be strange for the system of international justice, it may actually be intrinsic to the very functioning of the judicial bodies. This way of presenting themselves, however disturbing, complies not only with the role and real position assigned to them throughout the trial, but also with the very aim of this justice, namely to rebuild a collective ground by rejecting the singular individual. The notion of responsibility so valued by criminal lawyers cannot, in these conditions, limit itself to confront in the void the accused to material evidence with no guarantee of reaching the core of the moral responsibility and producing awareness. It thus seems, upon completion of this study, that if international criminal justice aims to reach the heart of its target and wants to take into account those tried as human beings, it needs to more significantly extract itself from a frame of a justice that sees it as merely a con­tinu­ ation of war.

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chapter 2

Defence Perspecti v es on Fa ir n e ss a n d Efficiency at th e I n ter nationa l Cr imi na l Cou rt Jenia Iontcheva Turner1

I. Introduction International criminal courts pursue a host of ambitious goals through their ­proceedings—to establish the truth about the crimes alleged, to end impunity for serious international crimes, and to model respect for human rights in their proceedings. Yet while these lofty principles are prominently referenced in the courts’ founding documents and in case law, in practice, a less majestic goal—resolving cases efficiently—soon becomes central in the administration of international criminal justice. As donors and court administrators take stock of the hefty expense tabs of international trials, they begin to place demands on judges, prosecutors, and defence attorneys to do more with fewer resources. 1  Amy Abboud Ware Centennial Professor in Criminal Law, SMU Dedman School of Law. I thank the survey participants for sharing their observations and to Esteban Peralta Losilla and the Counsel Support Section at the ICC for distributing the survey on my behalf. Thanks also to Meg deGuzman, Megan Fairlie, Ken Gallant, Chris Jenks, Stephen Smith Cody, and participants in the University of Oslo PluriCourts conference on ‘Strengthening the Validity of International Criminal Tribunals’, the 2016 Annual Meeting of the Southeast Association of Law Schools, and the 2016 ASIL International Criminal Law Interest Group Workshop for their comments. Finally, I am grateful to the SMU Law Faculty Excellence Fund for financial support and to Teresa Poonsuwan and Brooke Olsen for research assistance. Please note that the survey was conducted in early 2016, and the chapter was finalized in late 2016, so they do not reflect subsequent developments at the Court.

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40   Jenia Iontcheva Turner Efficiency is an important goal for international criminal courts for a number of reasons. It ensures defendants’ right to a speedy trial, promotes victims’ interest in closure, conserves limited resources, and helps provide justice in as many cases as possible. Yet as the brief history of modern international criminal procedure has shown, an unrelenting pursuit of efficiency can interfere with other values of the process, such as the protection of individual rights and the search for truth.2 This tradeoff was first observed at the International Criminal Tribunal for the former Yugoslavia (ICTY). Under pressure by donors to speed up proceedings and cut costs in the 2000s, ICTY judges introduced various ‘managerial’ reforms, which limited oral evidence in favour of written statements, restricted the parties’ time for examining witnesses, discouraged interlocutory appeals, and failed to provide sufficient time and resources for defence investigations.3 Scholars and even some ICTY judges found that these procedural reforms at times gave undue priority to judicial economy over fairness, equality of arms, and a thorough exploration of the facts.4 More recently, judges at the International Criminal Court (ICC) have likewise begun introducing reforms aimed at improving the efficiency of the Court.5 To expedite proceedings, they have restrained certain prosecutorial actions, such as overbroad charging documents and phased investigations, that are seen as contributing to delays.6 Some have also taken an interventionist approach to disclosure, requiring prosecutors to provide early and broad disclosure and even to submit in-depth analysis charts explaining the relevance of documents disclosed.7 A few judges have also demanded that both

2  Sergey Vasiliev, ‘The Structure and Management of International Criminal Trials’ 18 (Guest Lecture, ICC Office of the Prosecutor, The Hague, 26 March 2015) (hereafter Vasiliev, Structure and Management). 3  Geert-Jan Alexander Knoops, ‘The Dichotomy Between Judicial Economy and Equality of Arms Within International and Internationalized Criminal Trials: A Defense Perspective’ (2005) 28 Fordham Intl LJ 1566, 1589 (hereafter Knoops, Dichotomy); Maximo Langer, ‘The Rise of Managerial Judging in International Criminal Law’ (2004) 53 Am J Comp L 835, 874 (hereafter Langer, Rise of Managerial Judging); Vasiliev, Structure and Management (n 2) 18; Richard Vogler, ‘Making International Criminal Procedure Work: From Theory to Practice’ in Ralph J. Henham and Mark Findlay (eds), Exploring the Boundaries of International Criminal Justice (Ashgate 2011) 105, 110. 4  Prosecutor v. Milosevic (Dissenting Opinion of Judge David Hunt) ICTY Appeals Chamber, IT-0254-AR73.4 (21 October 2003) [20]–[22]; Patricia M. Wald, ‘To “Establish Incredible Events by Credible Evidence”: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’ (2001) 42 Harvard Intl L J 535, 550–52 (hereafter Wald, Establish Incredible Events); Langer, Rise of Managerial Judging (n 3) 903–04; Knoops, Dichotomy (n 3) 1590. 5  Hans-Peter Kaul, ‘Construction Site for More Justice: The International Criminal Court After Two Years’ (2005) 2 Am J Intl L 370, 376; Vasiliev, Structure and Management (n 2) 13–4. 6  See, e.g., Hans-Peter Kaul, ‘The ICC of the Future’ (2012) 45 Studies in Transnational Legal Policy 99, 110–11 (hereafter Kaul, ICC of the Future); War Crimes Research Office, Expediting Proceedings at the International Criminal Court (2011) 8–10 (hereafter WCRO Expediting Proceedings Report). 7  See Johan D. van der Vyver, ‘Time Is of the Essence: The In-Depth Analysis Chart in Proceedings Before the International Criminal Court’ (2012) 48 Crim L Bull Art I (hereafter Van der Vyver, Time Is of the Essence); Prosecutor v. Jean-Pierre Bemba Gombo (Decision on the Disclosure of Evidence by the Defence) Pre-Trial Chamber III, ICC-01/05–01/08–31 (5 December 2008) [9]–[10].

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Defence Perspectives on Fairness and Efficiency   41 parties submit to them all documents exchanged during disclosure, to give them the information necessary to manage the pre-trial process more efficiently. It remains an open question whether judicial managerialism has also circumscribed defence activities. A few defence attorneys have commented on their experiences with certain aspects of ICC procedure, such as the confirmation of charges and disclosure.8 But no one has examined systematically how judges’ procedural decisions have affected the defence. Has judicial managerialism limited defence opportunities to present and examine witnesses, to review disclosure, or to file interlocutory appeals? Have cost concerns led to restrictions on defence investigations? Have chambers urged defence attorneys to disclose their case early on or settle any aspects of the case with the prosecution? To begin an exploration of these questions, I surveyed ICC defence attorneys about their views on the court’s procedures. The survey asked broad questions about the fairness and expeditiousness of ICC proceedings, as well as more targeted questions about the use of managerial techniques by judges and the effect of these techniques on the defence. Responses to the survey showed that, at least at present, defence attorneys do not perceive judicial managerialism as an impediment to adequate representation at the ICC. While respondents complained about insufficient financial and institutional support for defence work, they tended to place responsibility for these decisions on the Registry and States Parties, not on judges.9 Respondents did express concerns about certain judicial decisions on disclosure, charging, interlocutory appeals, and victim participation.10 But for the most part, defence attorneys did not believe that an emphasis on efficiency drove the results in these decisions. Rather, they thought that judges failed to give sufficient weight to defendants’ rights and deferred too much to victims’ interests. While academic writings on managerial judging have tended to assume that the practice undercuts defence rights in international criminal procedure, survey responses suggest a more complex dynamic. Certain judicial efforts to expedite proceedings— demanding earlier disclosure, filtering out charges more aggressively, and restricting victim participation—could favour defence rights. To this end, international criminal defence attorneys could leverage the emphasis on expeditiousness to advocate for greater judicial regulation of prosecutorial activities.

8  See, e.g., Natacha Fauveau-Ivanovic, ‘Quelle réalité pour les droits de la défense au sein de la Cour pénale internationale?’ (2014) 5 Revue des droits de l’homme 2 (hereafter Fauveau-Ivanovic, Quelle réalité); Karim A.A Khan and Caroline Buisman, ‘Sitting on Evidence? Systemic Failings in the ICC Disclosure Regime—Time for Reform’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 1029 (hereafter Khan and Buisman, Sitting on Evidence?); Karim  A.A.  Khan and Anand  A.  Shah, ‘Defensive Practices: Representing Clients Before the International Criminal Court’ (2013) 76 L & Contemporary Problems 191 (hereafter Khan and Shah, Defensive Practices). 9 See infra Part III.B.2. 10 See infra Part III.B.

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42   Jenia Iontcheva Turner

II.  The Rise of Managerial Judging at International Criminal Courts The concept of managerial judging was first used by American scholars to describe trends in U.S. civil procedure.11 In the late 1970s, US judges took on a more activist stance in civil cases and were ‘not only adjudicating the merits of issues presented to them by litigants, but also . . . meeting with parties in chambers to encourage settlement of disputes and to supervise case preparation’.12 Before too long, scholars observed similar trends in criminal cases.13 Maximo Langer was the first to apply the term ‘managerial judging’ to describe procedural reforms at international criminal courts.14 Langer describes managerial judging as a practice under which ‘the court, with the parties’ assistance, wields [procedure as a device] to expedite process’.15 Unlike traditionally passive adversarial judges: [T]he managerial court gets information about the case very early in the process in order to actively pressure the parties to reach factual and legal agreements and accelerate their pre-trial investigations and trial cases. But unlike the court of the inquisitorial system that actively investigates the truth, the managerial court is active to make sure that the parties do not delay proceedings.16

Since Langer first coined the term, other scholars also observed that international judges have used procedural measures to streamline proceedings in international criminal cases.17 Although most discussions of this trend have focused on the ICTY and ICTR, Vasiliev has noted that managerial judging has spilled over into other international criminal courts as well.18

11  Robert F. Peckham, ‘The Federal Judge as a Case Manager: The New Role in Guiding a Case from Filing to Disposition’ (1981) 69 California L Rev 770, 770; Judith Resnik, ‘Managerial Judges’ (1982) 96 Harvard L Rev 374, 374–80 (hereafter Resnik, Managerial Judges); William  W.  Schwarzer, ‘Managing Civil Litigation: The Trial Judge’s Role’ (1978) 61 Judicature 400, 401–02. 12  Resnik, Managerial Judges (n 11) 376–77. 13 See, e.g., Nancy  J.  King and Ronald  F.  Wright, ‘The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations’ (2016) 95 Texas L Rev 325; Jenny McEwan, ‘From Adversarialism to Managerialism: Criminal Justice in Transition’ (2011) 31 Legal Studies 519, 522 (hereafter McEwan, Adversarialism to Managerialism); New Zealand Law Commission, Criminal PreTrial Processes: Justice Through Efficiency (2005) accessed 17 October 2019; P Johnson and MF Latham, ‘Criminal Trial Case Management: Why Bother?’ (2011) accessed 17 December 2016. 14  Langer, Rise of Managerial Judging (n 3) 836. 15  ibid 836. 16 ibid. 17  See, e.g., Nancy Amoury Combs, ‘Legitimizing International Criminal Justice: The Importance of Process Control’ (2012) 33 Michigan J Intl L 321, 359 (hereafter Combs, Legitimizing); Vasiliev, Structure and Management (n 2) 10–11; Wald, Establish Incredible Events (n 4) 549. 18  Vasiliev, Structure and Management (n 2) 12; see also Fauveau-Ivanovic, Quelle réalité (n 8) 2, 7.

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Defence Perspectives on Fairness and Efficiency   43 At the ICTY and ICTR, judges pursued efficiency through a wide range of procedures. Status conferences ‘streamlined the proceedings and armed the Trial Chambers with information, enabling them to exercise greater control over their cases’.19 Judges also ‘establish[ed] a work plan that sets forth the parties’ obligations and the dates upon which they must be met’.20 Critically, judges demanded early and broad disclosure of evidence to equip the parties and the Court with the information necessary to resolve the case more swiftly. To curb lengthy indictments and lengthy trials, judges also ‘invite[d] the Prosecutor to reduce the number of counts charged and the number of crime sites or incidents comprised within the charges’.21 At trial, judges restricted the number of witnesses called and the time allowed for examination and cross-examination.22 Judges also tried to accelerate the process by permitting more liberal use of written evidence.23 Throughout the process, they also used formal and informal rewards and sanctions to encourage the parties to agree on as many issues as possible and even to negotiate the outcome of the case.24 Finally, judges limited the opportunity to appeal preliminary issues as a way to move cases along.25 In recent years, the Assembly of States Parties at the ICC has placed similar pressure on judges to streamline the process.26 Judges themselves have taken proactive ­measures to expedite the proceedings. They have closely regulated disclosure among the parties,27 required the prosecution (and sometimes the defence) to produce ­summaries of evidence to be disclosed and charts indicating the relationship between each piece of evidence and the charges,28 and rejected or reshaped a number of charges.29 Some chambers have even attempted to regulate the timing of prosecutorial investigations.30 As judges have become increasingly active in managing the proceedings with an aim to speeding up the resolution of cases, it is worth examining what the effects of this managerialism have been. 19  Combs, Legitimizing (n 17) 330; Langer, Rise of Managerial Judging (n 3) 888. 20  Combs, Legitimizing (n 17) 330; Langer, Rise of Managerial Judging (n 3) 888. 21  Vasiliev, Structure and Management (n 2) 11. 22  Combs, Legitimizing (n 17) 330; Langer, Rise of Managerial Judging (n 3) 889. 23  Langer, Rise of Managerial Judging (n 3) 899–900. 24  ibid 892–93, 898–99. 25  ibid 901–02. 26 See Sergey Vasiliev, ‘The Structure and Management of International Criminal Trials’ (Guest Lecture, ICC Office of the Prosecutor, The Hague, 26 March 2015); See, e.g., ‘ASP 14: How can ICC trials be more efficient?’ (Coalition for the ICC, 24 November 2015) accessed 17 October 2019 (noting that the Assembly of States Parties has created special working groups to examine how to streamline the criminal process). 27  Alex Whiting, ‘Disclosure Challenges at the International Criminal Court’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 1007, 1027–28 (hereafter Whiting, ‘Disclosure Challenges at the ICC’). 28  Van der Vyver, Time Is of the Essence (n 7) 48. 29  War Crimes Research Office, The Confirmation of Charges Process at the International Criminal Court: A Critical Assessment and Recommendations for Change (2015) 44 (WCRO Confirmation of Charges Report). 30  Alex Whiting, ‘Dynamic Investigative Practice at the International Criminal Court’ (2013) 76 Law & Contemporary Problems 163, 167 (hereafter Whiting, ‘Dynamic Investigative Practice’).

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44   Jenia Iontcheva Turner In previous assessments of managerial judging at the international criminal courts, commentators have argued that it has tended to impair the fairness of the trial and the search for truth. Langer noted that ‘judicial activism may have created problems of impartiality, and the use of written statements has probably worsened the truth-determination ability of ICTY trials’.31 Knoops likewise asserted that the ad hoc tribunals’ emphasis on efficiency disproportionately burdened the defence and undermined equality of arms.32 Similarly, Vasiliev observed a potential conflict between managerial judging and defence interests: In general, the defence has no apparent incentives to expedite the process, as opposed to delaying it. In most scenarios, it will opt for a ‘contest-everything’ ­tactic, which helps divert the adversary’s resources from the core issues of personal responsibility and linkage evidence to the investigation and presentation of crime-base evidence.33

Even some ICTY judges themselves have denounced specific managerial practices as inconsistent with procedural fairness.34 Only rarely and in passing do commentators note that, in some cases, ‘shorter proceedings may benefit the defendant’35 and that managerial judging could also cut into prosecutorial independence.36 As the ICC begins its experiment with managerial judging, it is worth reviewing whether previous assessments of the practice apply to the new Court as well.

III.  Defence Views on Fairness and Efficiency at the ICC A.  Survey Method At present, we know little about the impact that managerial practices might have on defence representation at the ICC. To begin gathering information on this question, I conducted an online survey of ICC defence attorneys in May–June 2016. The survey consisted of 23 questions, which were estimated to take 10–15 minutes to answer. The questions were in English, but French-speaking attorneys were encouraged to respond in French. To promote participation, the survey was confidential and did

31  ibid 908 n 370. 32  Knoops, Dichotomy (n 3) 1580. 33  Vasiliev, Structure and Management (n 2) 18. 34  Milosevic (Dissenting Opinion of Judge Hunt) (n 4) [20]–[22]; Wald, Establish Incredible Events (n 4) 550–52. 35  Langer, Rise of Managerial Judging (n 3) 908 n 370. 36  Vasiliev, Structure and Management (n 2) 18.

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Defence Perspectives on Fairness and Efficiency   45 not ask for the participants’ names or nationalities.37 No other incentives were provided for participation. Based on ICC filings and a research of public records, I identified and emailed 53 attorneys who had practised at the ICC, and I requested their participation in the study.38 In addition, the Counsel Support Section (CSS) at the Registry agreed to send the solicitation on my behalf. This solicitation went out to 69 practising ICC counsel and associate counsel who had intervened at the ICC, yielding a few additional responses.39 In total, 82 attorneys received a solicitation either directly from me or from the CSS. Of those 82 attorneys, 18 substantially completed the survey,40 which represents a response rate of 22 per cent. Because the sample was not random, selection bias may have affected the survey results. This survey should be viewed as a preliminary examination of defence views at the ICC and should be supplemented by follow-up studies. The 18 survey respondents have diverse legal backgrounds and levels of experience. Twelve have practised in a common-law/adversarial jurisdiction, five in a civil-law/ inquisitorial jurisdiction, and one in a mixed system.41 All but one had at least five years of experience in international criminal law, and 11 had over 15 years of experience. Five had worked at the ICTY, 13 at the ICTR, and 2–4 at each of the Special Court for Sierra Leone (SCSL), Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Special Tribunal for Lebanon (STL). Just under half of the respondents had practised international criminal law in different capacities, as prosecutors, judges, legal officers, academics, or victim representatives. Most respondents had handled one or two cases at the ICC, but a few had handled three or more. A large majority had handled matters at the pre-trial stage, a smaller majority had done so at trial, and just over a third had handled matters on appeal. Roughly 91 per cent of respondents had recent experience representing clients at the ICC (from 2014 until present), but a majority had also defended ICC cases as early as 2003–11.

B.  Survey Findings 1.  Judicial Managerialism On the whole, respondents did not believe that the ICC had adopted a managerial approach to procedure or sacrificed fairness for efficiency. However, a large majority of 37  Respondents were given the option to provide their name and email to be contacted for further information. A few respondents provided their contact information, which has been kept confidential. 38  Forty of the recipients were primary or associate counsel, and 13 recipients were ad hoc or duty counsel, legal consultants, or legal assistants. 39  Most of these recipients had already received a solicitation from me because the Registry list and my list overlapped to a great degree. 40  Some questions in the tables reproduced here have less than 18 responses because some respondents skipped one or more questions. 41  The results thus somewhat overrepresent English-speaking, common-law attorneys and may not fully reflect the distinct perspectives of Francophone and civil-law attorneys.

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46   Jenia Iontcheva Turner the respondents expressed other concerns about equality of arms and procedural fairness at the Court. Respondents complained that the Court—particularly the Registry, under pressure by the States Parties—failed to provide the defence with sufficient resources and institutional support to allow for adequate investigation and trial preparation. Respondents also expressed concerns about certain judicial approaches to disclosure, the confirmation of charges, victim participation, and interlocutory appeals. One of the first substantive questions in the survey asked respondents to select one or more labels that best describe the procedural system at the ICC. The results are reproduced in Table  2.1 below. Notably, only two respondents chose ‘managerial/­ efficiency-driven’ as an appropriate label. Most picked ‘a mix of adversarial and inquisitorial’ as the most fitting description. The second most popular label, chosen by more than half of respondents, was ‘victim-oriented’. The survey next asked defence attorneys to indicate whether they had experienced certain procedural actions that unduly limited defence rights or interests.42 The most common restrictions reported were limits on the ability to investigate (56 per cent), limits on the ability to adequately review evidence disclosed by the prosecution (65 per cent), and limits on the ability to file interlocutory appeals (60 per cent). The survey also asked respondents to compare ICC procedures to those at other international criminal courts (to the extent that respondents had the relevant experience or knowledge). A majority of respondents thought that the ICC imposed the

Table 2.1  Defence Categorization of ICC Procedural System Adversarial

Inquisitorial A mix of adversarial and inquisitorial Managerial/ Efficiency-driven Victim-oriented Other (Please explain) 0

42  See Table 2.2.

2

4

6

8

10

12

14

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Defence Perspectives on Fairness and Efficiency   47

Table 2.2  Defence Experiences of Procedural Restrictions by the Court Question

Yes

No

Total

Unduly limited your client’s right to make a statement (Please explain if you wish.)

24%

4 76%

13 17

Unduly limited your ability to investigate on behalf of your client (Please explain if you wish.)

56%

10 44%

8 18

Unduly limited your ability to present defence witnesses (Please explain if you wish.)

29%

4 71%

10 14

Unduly limited your ability to question adverse witnesses (Please explain if you wish.)

33%

5 66%

10 15

Unduly limited your ability to adequately review evidence disclosed by the prosecution (apart from legitimate redactions for witness protection) (Please explain if you wish.)

65%

11 35%

6 17

Unduly limited your ability to file an interlocutory appeal (Please explain if you wish.)

60%

9 40%

6 15

Rejected a motion as ‘frivolous’ or ‘baseless’? (Please explain if you wish.)

40%

6 60%

9 15

Described a tactic you have taken in the course of your representation as a ‘delay tactic’? (Please explain if you wish.)

36%

5 64%

9 14

restrictions mentioned above more frequently than did other courts, yet most thought that the pace of ICC proceedings was either about the same or slower than that of the ICTY and ICTR.43 When asked to compare procedural fairness of the ICC and other international criminal courts, views were mixed. For example, one-third of respondents noted that ICC and ICTY were equally procedurally fair, one-fifth thought the ICC was less fair than the ICTY, and nearly half could not make a determination. In comparing ICC and ICTR procedures, about 18 per cent thought that the ICC was fairer, while 24 per cent thought the ICTR was fairer, and another 24 per cent thought the two courts were similar in fairness.44 In short, whatever the effects of judicial managerialism, according to respondents, they did not seem to render the ICC less fair than its predecessors. In response to a question about judicial activism, 64 per cent of defence respondents stated that ICC judges are as active as they should be. Only one respondent thought judges should be less active, and four respondents believed that judges should be more active. The lack of complaint about judicial intervention is particularly striking given that close to two-thirds of respondents hail from adversarial systems, where judges remain passive in criminal cases. 43  A couple of respondents did, however, believe that ICC proceedings were faster than the STL and SCSL. 44  Roughly 35% of respondents said they did not know which court was fairer.

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48   Jenia Iontcheva Turner As some of the open-ended responses explained, judicial activism could be good or bad, depending on how it is used: This is not an easy question as each court appears to have different approaches. Some are unduly active, while some much less so. . . . Again, the Confirmation Hearings are an odd animal and one may have thought the court would be more active—i.e. imaginative and investigative—but it is really a rubber stamp if there is a suggestion of adequate evidence being present. Having said that, in the Ruto /Kenyatta cases four suspects were not confirmed [sic]. So not a complete waste of time.45 Passivity or activism of the judges depends on the system of the proceeding (­adversarial-passive or inquisitorial-active). An active judge in an adversarial system is not acceptable and vice versa. You have to choose and ICC does not choose! That is the problem.46 No problem if good judges are active, but it really is problematic if bad judges think they should actively manage all types of things.47

Another measure frequently mentioned as a feature of managerialism is an effort by judges to encourage the parties to enter into factual stipulations or to negotiate the charges or sentence.48 At the ICC, judges do not appear to have attempted to encourage the prosecution and defence to settle cases or stipulate to facts,49 nor have they demanded overly broad disclosure by the defence—a feature of managerialism that is often used to encourage negotiations and expedite the proceedings.50 Finally, most respondents agreed with the proposition that judges should take steps to expedite the process at the ICC. A majority (62 per cent) of respondents were open to the idea of judges promoting negotiations between the parties about the sentence or the charges. Most were also open to judges taking other measures—such as filtering out unwarranted charges at the confirmation stages, issuing judgments more quickly, and ensuring earlier and broader disclosure—to speed up proceedings.51 In short, defence attorneys do not believe that judges have been unduly interventionist or have sacrificed defence rights for the sake of efficiency. A review of ICC decisions that use the terms ‘efficiency’, ‘judicial economy’, and ‘expeditious’ confirms that so far, judges have not allowed concerns about expeditiousness to undermine defence rights. There appears to be no correlation between the use of one of these terms and a decision 45  Respondent # 10. 46  Respondent # 15. 47  Respondent # 18. 48  Langer, Rise of Managerial Judging (n 3) 879; McEwan, Adversarialism to Managerialism (n 13) 525. 49 None of the respondents indicated that this was already happening, even though the survey included a question whether judges should be promoting such negotiations. The Court accepted its first admission of guilt in Al Mahdi in 2016, but this remains an exceptional case. Prosecutor v. Al Mahdi (Judgment and Sentence) Trial Chamber VIII, ICC-01/12–01/15–171 (27 September 2016). No evidence suggests that judges encouraged an admission of guilt or otherwise participated in the negotiations in Al Mahdi. Alex Whiting, ‘The Significance of the ICC’s First Guilty Plea,’ (Just Security, 23 August 2016) accessed 30 March 2019. 50  Langer, Rise of Managerial Judging (n 3) 897; McEwan, Adversarialism to Managerialism (n 13) 523. 51  58% said that judges should take other measures to expedite proceedings, while 42% said that judges should not do so.

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Defence Perspectives on Fairness and Efficiency   49 against the defence.52 Finally, Chambers have largely refrained from using certain terms, such as ‘frivolous’ and ‘delay tactic’, to describe defence actions.53 This is also consistent with defence perceptions that judges are not using informal sanctions to prod the parties to speed up the process.

2.  Defence Investigative Resources

Although respondents did not believe that judicial management of the proceedings has negatively affected defence representation at the ICC, they did complain about the underfunding of the defence as a result of cost concerns. Like the international criminal tribunals and hybrid courts that preceded it, the ICC is in principle committed to ensuring equality of arms between defence and prosecution. Like its predecessors, however, it has interpreted equality of arms to mean procedural equality, not equality of resources.54 The parties are to be placed in ‘a procedurally equal position to make their case during the whole course of the trial’.55 The right to a fair trial further requires that defendants receive ‘adequate’ time and facilities to prepare a defence.56 If the defence is deprived of essential investigative resources or access to evidence, this may render the proceedings fundamentally unfair and warrant a stay of the proceedings.57 Most defence respondents stated that the ICC had at times unduly limited their ability to investigate and that the Court had not provided them with sufficient resources to represent clients. As a few open-ended responses indicated and an independent review of court records confirms, these restrictions were imposed primarily by the Registry and not by Chambers.58

52  Out of a random sample of 34 decisions reviewed, a concern for expediting the proceedings was material to the outcome of 11 decisions. In five of these decisions, this concern favoured the defence, in four decisions, it favoured the prosecution, and in two decisions, it favoured both the prosecution and the defence (as against the victim’s representatives). 53  Judges never used the term ‘delay tactic’ and used ‘frivolous’ quite rarely, roughly 40 times. 54  See Charles C. Jalloh and Amy DiBella, ‘Equality of Arms in International Criminal Law: Continuing Challenges’ (2013) in William A. Schabas, Yvonne McDermott, and Niamh Hayes (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate 2013) 251, 253 (hereafter Jalloh and DiBella, Equality of Arms). 55  International Bar Association, Fairness at the International Criminal Court (19 fn 9, 2011) (quoting Stefania Negri, ‘The Principle of “Equality of Arms” and the Evolving Law of International Criminal Procedure’ (2005) 5 Intl Crim L Rev 513, 513). 56  Rome Statute 1998, art 67(1)(b). 57 See Prosecutor v. Thomas Lubanga Dyilo (Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008) Trial Chamber I, ICC-01/04–01/06 (13 June 2008) [77]–[80], [91]. 58  See, e.g., Respondent # 10 (‘In the Reg 55 proceedings the Registry did not grant permission to investigate -i.e. pay for investigations - until the Court itself had decided the issue that would make such investigations necessary. I can’t say the Court - i.e. Trial Chamber - limited me.’). It is possible, therefore, that the number of attorneys who believe they did not have sufficient resources to investigate may be higher. Some attorneys may have answered ‘no’ to the question whether ‘the Court’ limited their ability to investigate because they interpreted the term to include only the chambers.

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50   Jenia Iontcheva Turner

Table 2.3  Has the ICC generally provided you with sufficient resources to adequately represent your client? Yes (Please explain if you wish.)

No (Please explain if you wish.) Sometimes (Please explain if you wish.) 0

1

2

3

4

5

6

7

8

Open-ended responses elaborated on the types of resource restrictions imposed. While only one respondent criticized the level of remuneration for attorneys under the legal aid system,59 several complained that the Registry does not allocate sufficient staffing resources to meet the demands of complex cases. To provide context for this criticism, it is worth examining briefly the ICC’s legal aid scheme. Before trial and during appeal, legal aid presumptively allocates funds for three defence team members: principal counsel, a legal assistant, and a case manager.60 During trial, the defence team also receives funds for an additional ‘associate’ counsel.61 The Registry may allocate additional staffing resources if the complexity of the case warrants it.62 A few respondents complained, however, that the Registry did not always approve funds for the staff needed to help with case preparation.63 As one respondent 59  But see Respondent # 9 (translated from French). For a public statement criticizing the level of ­ ayment, see David Hooper, ‘Response to the Discussion Paper “Review of the ICC Legal Aid System’ ” p (2012) 14 accessed 17 October 2019 (hereafter Hooper, Response). For a discussion of remuneration of counsel, see International Criminal Court, Assembly of States Parties, Registry’s Single Policy Document on the Court’s Legal Aid System (Twelfth Session, 2013) 11 accessed 17 October 2019 (hereafter Registry’s Single Policy Document). 60  Registry’s Single Policy Document (n 59) 10. 61  ibid 10. 62  ibid 15. 63  See Respondent # 10 (n 58); Respondent # 19 (stating that the Court ‘first rejected request for mission to question a witness, then rejected request to send full staff there’ and arguing that ‘more staff [are] needed’); Respondent # 23 (complaining that the Court ‘provid[ed] grossly inadequate resources to enable me conduct appropriate investigations’ and that ‘[t]he budgetary allocations are arbitrary, grossly inadequate and payments and reimbursement of expenses incurred by counsel are either not paid or paid after several months going to years, if ever’); Respondent # 6 (complaining of ‘lack of resources’ and ‘administrative red tape’); Respondent # 14 (‘Defence teams do not have as many logistical resources at various levels. They are not considered ICC staff so they do not receive the same benefits and protections as staff. . . . Those on legal aid have to make numerous continuing requests for funding which makes job security hard to guarantee.’). But cf Respondent # 10 (‘In practice whenever I asked for more (and I concede I was careful in my demands given the initial indication of there being little funding) I got it. I don’t think I was limited unduly by budget. But I could have been. In fact, it was almost as if we were designing the legal aid system. The scheme the ICC had put in place was wholly misplaced and it had to react to the practicalities that we were able to present.’).

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Defence Perspectives on Fairness and Efficiency   51 opined, ‘[I]nflexible, formal budgets with fixed sums do never properly reflect the needs of counsel and put them from the beginning in a[n] unfair and limited position’.64 Several defence motions challenging Registry decisions on legal aid highlight the concern about staffing needs.65 In Lubanga, Ntaganda, and Katanga, the defence challenged staffing allocations made by the Registry at different points in the proceedings. In Lubanga, after the defendant’s first counsel had to withdraw for health reasons, replacement counsel-to-be demanded that the Registrar increase staffing on the case before she would accept appointment. Although the Registrar eventually largely acquiesced to counsel’s demands, the dispute delayed the proceedings for months.66 The dispute resurfaced, however, after the Registry cut legal aid for the defence team for the period after closing arguments and before final judgment.67 Attorneys argued that the cutback violated Lubanga’s fair trial rights because the defence needed to maintain a legal team to help with an eventual appeal, should one be needed. The Trial Chamber agreed and overruled the Registry’s decision.68 Despite this decision in favour of Lubanga’s defence, the same dispute between the Registry and the defence arose again in Katanga after closing arguments, and the Trial Chamber stepped in to restore legal aid.69 In Ntaganda, counsel challenged the Registry’s refusal to allocate more than six months of salary for a second legal assistant to help at trial.70 The Chamber agreed with the defence that a second legal assistant should be funded for the duration of the trial. In reversing the Registry, the Chamber noted that the decision to deny funding was not supported by reasons and was inconsistent with the Registry’s stated legal aid policy.71 A number of survey respondents also voiced concerns that they did not receive sufficient support for field investigations. The Court’s legal aid system sets a budget for investigations at €73,006 per team, which is estimated to cover a total of about 90 days of field investigations.72 In addition, defence teams can be reimbursed for miscellaneous and travel expenses of up to €3,000 per month.73 Counsel may request additional resources, and the Registry will evaluate the request based on factors such as the number of charges filed in the case, the number of victims participating, and the number of additional witnesses called by the prosecution and the victims’ representatives.74 Yet respondents

64  Respondent # 22. 65  The defence can challenge Registry decisions pursuant to Regulation 83(4). 66 International Bar Association, Monitoring Report: International Criminal Court (2007) 17 accessed 17 October 2019. 67  Prosecutor v. Lubanga (Decision Reviewing the Registry’s Decision on Legal Assistance for Mr Lubanga) Trial Chamber I, ICC-01/04–01/06–2800 (30 August 2011) [13]. 68  Lubanga (n 67) [63]. 69  Prosecutor v. Katanga & Chui (Transcript of Oral Order) Trial Chamber II, ICC-01/04–01/07-T341-ENG (18 June 2012) [19]–[24]. 70  Prosecutor v. Ntaganda (Reasons for Review of Registrar’s Decision on Defence Resources) Trial Chamber VI, ICC-01/04–02/06–389 (29 October 2014) [13]–[17]. 71  Ntaganda (n 70) [43]. 72  Registry’s Single Policy Document (n 59) 11. 73  ibid 25. 74  ibid 11; Regulations of the Court 2004, reg 83(3).

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52   Jenia Iontcheva Turner noted that, in practice, support for investigations has been insufficient and unpredictable.75 Again, these limitations were imposed by the Registry, not the judges.76 These resource concerns have been echoed in public comments by defence attorneys. Reacting to a 23 per cent cut in the defence budget for 2015, for example, defence attorney Nick Kaufman complained that while the prosecution can plan its investigative activities in advance, ‘[t]he defence . . . has to request permission from the Registry for every procedural step’.77 He elaborated that: The institutionalised prejudice towards the defence exists and is ignored. By way of example, apart from the cost of a flight ticket and a basic living allowance, defence investigations are never funded in advance and mission expenses are reimbursed with a delay of several months. As a result, defence lawyers are forced to fund missions—including witness expenses, food and accommodation—out of their own pocket.78

Other attorneys have also gone on record to protest insufficient funding for defence investigations.79 Defence attorneys have noted that ICC funding falls below that provided by the ICTY and ICTR, even though ICC investigations tend to require greater financial and logistical support.80 For example, because of a prohibition on witness proofing at the ICC (which did not exist at the ICTY or ICTR), defence counsel have to interview any potential witnesses in the field.81 Furthermore: [ICC counsel], unlike its counterparts at the ad hoc and hybrid courts and tribunals, will not have the benefit of a large and experienced defence bar with extensive and broad substantive knowledge of the conflict in question and practical advice on planning and conducting investigations on the ground.82

For those reasons, ICC attorneys have argued that they need administrative and financial support even more than attorneys at the ad hoc international tribunals did.83 It is important to note that, in a few ICC cases, such as those concerning high-powered Kenyan officials, defendants were able to afford private counsel and bankroll thorough defence investigations. Furthermore, the Kenyan government not only did not stand in 75  Respondent # 10 (n 58); Respondent # 19 (n 63); Respondent # 23 (n 63); Respondent # 14 (n 63). 76  See, e.g., Respondent # 10 (n 58). 77 Sophie van Leeuwen, ‘ “Totally Unacceptable”: ICC Defence Counsel Budget Cuts Criticised’ (Justice Hub, 15 December 2014) accessed 30 March 2019. 78 ibid. 79  Hooper, Response (n 59) 13–17; ICC Office of Public Counsel for the Defence, Internal Memorandum from Xavier-Jean Keïta to Esteban Peralta Losilla, ‘OPCD Analysis/Response to Legal Aid Proposals’ (31 January 2012) 7–8 accessed O17 October 2019 (hereafter Keïta). 80  Hooper, Response (n 59) 13–17; Keïta (n 79) 7–8. 81  See Hooper, Response (n 59) 13–17; Keïta (n 79) 7. 82  Khan and Shah, Defensive Practices (n 8) 225. 83 ibid.

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Defence Perspectives on Fairness and Efficiency   53 the way of defence activity, but likely facilitated it.84 The Kenyan cases, however, remain exceptional. Most ICC defence attorneys have not been able to count on either extensive resources or the support of domestic authorities. Academic commentary echoes survey responses about the challenges of defence investigations, noting the difficulties that international criminal defence attorneys face in obtaining access to the field or evidence from state authorities.85 Because the defence is not an official organ of the Court, it cannot benefit from established channels of mutual cooperation in criminal matters.86 More generally, international organizations, non-governmental organizations, and domestic authorities have not been as accommodating of defence requests for evidence as they have been of prosecution requests.87 The underfunding of defence investigations exacerbates these structural problems. Survey responses, as well as the Court’s own records, suggest that resource limitations on defence representation are largely the result of administrative, rather than judicial decisions. The Registry is under pressure from states parties to keep the legal aid budget under control, so it has taken decisions that, in defence attorneys’ views, have at times interfered with the defence’s ability to effectively prepare cases. Judges have often supported the defence in its efforts to maintain the staff and resources necessary for adequate representation.88 This may explain why survey comments about the inadequacy of investigative resources focused on the Registry and States Parties, rather than on judges.

3.  Prosecutorial Disclosure Recognizing the investigative challenges that the defence faces in international criminal cases, the drafters of the Rome Statute charged the prosecution with investigating objectively.89 Prosecutors are supposed to seek out ‘incriminating and exonerating 84  See, e.g., Institute for War & Peace Reporting, ICC Kenya Probe, ‘Hampered by Intimidation’ (12  January 2012) accessed 17 October 2019. 85 Caroline Buisman, ‘The Prosecutor’s Obligation to Investigate Incriminating and Exonerating Circumstances Equally: Illusion or Reality?’ (2014) 27 Leiden J Intl L 205, 212–15 (hereafter Buisman, Prosecutor’s Obligation); Jacob Katz Cogan, ‘International Criminal Courts and Fair Trials: Difficulties and Prospects’ (2002) 27 Yale J Intl L 111, 131; Fauveau-Ivanovic, Quelle réalité (n 8) 2, 12; Maria Igorevna Fedorova, The Principle of Equality of Arms in International Criminal Proceedings (Volume 55, School of Human Rights Research Series 2012) 190, 205–09; Jalloh and DiBella, Equality of Arms (n 54) 264; Michael A. Newton, ‘Evolving Equality: The Development of the International Defense Bar’ (2011) 47 Stanford J Intl L 379, 388–90 (hereafter Newton, Evolving Equality). 86 IBA, Fairness at the International Criminal Court (n 55) 32. 87  See, e.g., Newton, Evolving Equality (n 85) 390 (noting that national authorities ‘have established detailed mechanisms for providing that information to the prosecution teams, but have often been far less forthcoming to defense investigators’). 88  International Bar Association, Counsel Matters at the International Criminal Court (2012) 25; see also notes 67–71 and accompanying text (describing instances in which ICC chambers reversed Registry decisions that denied resources to the defense). 89  Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/CONF.183/9 (in force 1 July 2002) (hereafter Rome Statute 1998), art 54(1)(a).

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54   Jenia Iontcheva Turner circumstances equally’ ‘in order to establish the truth’.90 A thorough and objective investigation by prosecutors is supposed to compensate to some degree for the difficulties that defence attorneys encounter in collecting evidence on their own. Yet defence attorneys have expressed skepticism that the ICC prosecutor is in a good position to investigate on the defence’s behalf.91 As Caroline Buisman, an ICC scholar and defence counsel, writes: ‘[I]t is perhaps over-idealistic to expect a prosecutor to search purposefully for information that is contrary to his or her perception of the facts and his or her case’.92 Moreover, since ‘the Prosecutor does not, as a rule, question the accused or otherwise have his or her account of events, it is questionable whether she can have a realistic basis for such an enquiry’.93 ICC prosecutors are further required to disclose promptly to the defence any exculpatory evidence that they have in their possession. Chambers have held that prosecutors must disclose ‘the bulk’ and in some cases, ‘the totality’ of exculpatory evidence before the confirmation of charges hearing.94 All exculpatory evidence must be disclosed ‘as soon as practicable’.95 The ICC has affirmed that disclosure of exculpatory evidence and evidence material to the defence is critical to ensuring a fair trial.96 Because disclosure is so central to ensuring a fair trial and a procedural balance between the parties, it has been the subject of multiple disputes at the Court.97 Not surprisingly, survey respondents highlighted disclosure as the area of greatest discontent. Almost two-thirds of respondents stated that the Court has unduly limited their ability to review disclosed evidence. In response to a subsequent question, 63 per cent of respondents stated that the Court had not demanded adequate disclosure from the prosecution, while another 19 per cent thought that the Court had only ‘sometimes’ demanded adequate disclosure. More specifically, respondents opined that the Court did not do enough to ensure that the prosecution disclosed evidence in a timely fashion. They complained of ‘late 90  ibid. This provision is influenced by the inquisitorial model, under which prosecutors are seen as neutral officials who investigate objectively and thoroughly, while the defence has a relatively passive role during investigations, focused on reviewing evidence gathered by the prosecution. Jenia I Turner, ‘Plea Bargaining and Disclosure in Germany and the United States: Comparative Lessons’ (2016) 57 William & Mary L Rev 1549, 1559. 91  Buisman, Prosecutor’s Obligation (n 85); see also Respondent # 15 (‘[La CPI] prétend confier au Procureur le soin de travailler à décharge ce qu’il s’abstient bien . . . . Soit on donne les moyens à la défense de faire un vrai travail de contre-enquête (en l’absence de juge d’instruction et de police, cela serait logique), soit on se retrouve dans une situation inéquitable vis-à-vis de la défense (ce qui est le cas).’). 92  Buisman, Prosecutor’s Obligation (n 85) 224. 93 ibid. 94  Prosecutor v. Lubanga (Decision on the Final System of Disclosure and the Establishment of a Time Table) Pre-Trial Chamber I, ICC-01/04–01/06–102 (15 May 2006) [124]–[133]. 95  Prosecutor v. Ruto et al (Decision Setting the Regime for Evidence Disclosure and Other Related Matters) Pre-Trial Chamber II, ICC-01/09–01/11–44 (06 April 2011) [6]. 96  Prosecutor v. Ongwen (Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber II entitled ‘Decision Setting the Regime for Evidence Disclosure and Other Related Matters’) Appeals Chamber, ICC-02/04–01/15–251 (17 June 2015) [40] (‘The Appeals Chamber has previously held that “the disclosure process is essential in ensuring the fairness of the proceedings and that the rights of the defence are respected, in particular the principle of equality of arms.” ’) (citations omitted). 97  Whiting, ‘Dynamic Investigative Practice’ (n 30) 166; Khan and Buisman (n 8) 1029.

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Defence Perspectives on Fairness and Efficiency   55 disclosure’ and the ‘need to file numerous if not endless disclosure requests’.98 In the same vein, a respondent reported that ‘[t]he OTP served thousands of pages of evidence 14 days before the Preliminary Hearing as an attempt to prevent the Defence from conducting full analysis of their case. . . . The date of possession of the evidence showed it could have been served sooner’.99 Respondents further complained that the Court did not consistently sanction prosecutors for disclosure violations.100 Particularly because it is combined with insufficient staffing and investigation resources for the defence, late disclosure has reportedly frustrated defence efforts to prepare ­adequately for confirmation hearings and trials.101 One respondent explained that his or her defence team was able to review the disclosed evidence adequately only because the chamber delayed first the confirmation hearing and then the trial proceedings.102 This criticism echoes a complaint by defence attorneys at the ICTY: that by stretching out disclosure of evidence over time, the prosecution ‘puts the defence off-balance and makes it impossible to “develop and stick to a proper defence plan” ’.103 Independent observers of the Court concur that ‘the disclosure process is often rife with delays’.104 Another concern of respondents was that the Court authorized disproportionate and unnecessary redactions of disclosed documents. At the ICC, the prosecution can seek permission to redact information that would identify witnesses, their families, or others who might be placed at risk on account of the Court’s work.105 Disclosure may also be restricted to protect the integrity of ongoing investigations, national security information, or confidentiality agreements authorized under the Statute.106 While redactions and summaries of witness statements are permitted before confirmation to address such concerns, witness identities must be disclosed before trial.107 Defence attorneys believed that judges were overly deferential to the prosecution in authorizing redactions. As one respondent explained, ‘Witness protective measures 98  Respondent # 6; see also Respondent # 10 (‘Perhaps disclosure of the trial material should take place sooner—at present, e.g. in [], the trial witnesses were largely different to the Confirmation witnesses.’). 99  Respondent # 21. 100  Respondent # 23 (‘The Court most of the time accommodates the Prosecutor’s unreasonable disclosure violations. The Prosecutor has hardly ever been sanctioned except in very limited cases for its disclosure violations.’); Respondent # 14 (‘The duty to disclose exculpatory evidence is not as robustly enforced and it is usually up to the defence to demonstrate the need.’); see also Khan and Buisman, Sitting on Evidence? (n 8) 1033–34 (noting that that Chambers tend to excuse prosecutorial delay in providing disclosure). 101  Respondent # 19 (noting that the Court ‘did not provide us with necessary software to read prosecution evidence and failed to oblige the prosecution to present evidence in a different more accessible format’); Respondent # 21 (n 99); Respondent # 14 (‘Defence Counsel are not afforded enough time to conduct their own investigations and adequately review prosecution disclosures.’). 102  Respondent #10. 103 Jarinde Temminck Tuinstra, ‘Defending the Defenders: The Role of Defence Counsel in International Criminal Trials’ (2010) 8 J Intl Crim Just 463, 479 (quoting Stephane Bourgon, ‘Procedural Problems Hindering Expeditious and Fair Justice’ (2004) 2 J Intl Crim Just 526, 529). 104  Guénaël Mettraux et al., Expert Initiative Report on Promoting Effectiveness at the International Criminal Court (2014) 103 (hereafter Expert Initiative). 105  Rome Statute 1998, art 68(5); ICC RPE, rr 81(3), (4). 106  ICC RPE, rr 81(2)–(4), 82. 107  ICC RPE, r 81(5).

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56   Jenia Iontcheva Turner have a deleterious effect on disclosure—the Court inevitably? [sic] accepts what the prosecutor tells it as to the risks to its witnesses when in fact there is little or no risk at all. The Court is also unduly protective of intermediaries and of the sums provided to witnesses and intermediaries’.108 In public comments, too, defence attorneys have criticized the redactions process as ‘reflexive’, ‘unwieldy[,] and unmanageable’.109 Outside observers have likewise noted that the redactions process is time-consuming and unpredictable. Chambers have adopted different approaches to authorizing initial redactions and lifting redactions later in the process.110 As a result: The same evidence may be disclosed to the Defence multiple times with different degrees of redactions. Effectively, the Defence may be required to review the same material three times before the actual identity of the witness or other key information may be disclosed to the Defence and allows for full Defence investigations to take place at a very late stage in proceedings.111

This process overburdens the already thinly stretched defence teams. Survey responses were not conclusive as to the reason for the judges’ perceived failure to ensure prompt and comprehensive disclosure. No respondents suggested that the problem resulted from a focus on efficiency. Instead, some opined that judges gave undue deference to prosecutorial claims of exigency, whether in terms of the timing of disclosure or in terms of the necessary redactions.112 Academic commentary is divided on this question. Alex Whiting has argued that disclosure delays are the inevitable product of prosecuting complex international crimes involving massive documentary evidence and scores of vulnerable witnesses.113 Others have claimed that delays are fueled by inconsistent judicial approaches to disclosure.114 What is clear is that neither defence attorneys nor outside observers believe that the source of the disclosure problems is managerial judging. In fact, managerial judging is seen as a possible remedy for late and incomplete disclosure.115

4.  Confirmation of Charges The survey did not directly ask defence attorneys to comment on the confirmation of charges process, but several respondents nonetheless raised the issue when asked about top procedural reforms they would like to see implemented at the ICC. The confirmation of charges is an adversarial proceeding on the basis of which the Pre-Trial Chamber decides whether ‘substantial grounds’ exist to believe that the person committed the crimes charged. The hearing is supposed to protect ‘against wrongful prosecution and 108  Respondent #10. 109  Khan and Shah, Defensive Practices (n 8) 208–9. 110  Expert Initiative (n 104) 113–5. 111  ibid 115. 112  Respondent # 14; Respondent # 10. 113  Whiting, ‘Dynamic Investigative Practice’ (n 30) 179–82. 114  Expert Initiative (n 104) 103; IBA, Fairness at the International Criminal Court (n 55) 24. 115  See, e.g., WCRO Expediting Proceedings Report (n 6) 61; Whiting, ‘Disclosure Challenges at the ICC’ (n 27) 1007.

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Defence Perspectives on Fairness and Efficiency   57 ensur[e] judicial economy by allowing [sic] to distinguish between cases that should go to trial from those that should not’.116 Although the process is supposed to safeguard against unwarranted accusations, several defence attorneys criticized it as unfair and inefficient, at least as practised at present. Views on how the confirmation process should be reformed differed widely among defence attorneys, however, just as they do among academic commentators. Some attorneys argued that the confirmation process should be strengthened and that judges should be more rigorous in sifting out unwarranted charges.117 As one respondent explained: The threshold for the confirmation of charges is so low. This allows charges which should have been filtered and dismissed to be confirmed for trial. Due to the reluctance of Pre-trial Judges to grant leave for appeal of most confirmation decisions, the cases are sent for trial on very deficient and defective charges. The ICC Judges should be more active and rigorous during the confirmation process and during trial.118

Another respondent lamented the variable and unpredictable approaches to confirmation by different judges.119 He or she also criticized judges for refashioning charges at trial through Regulation 55, which allows trial judges to recharacterize the charges confirmed by pre-trial judges.120 The respondent opined that this practice renders the confirmation process ‘meaningless’ because ‘modes of liability litigated and not found as “charged” modes of liability in the CoC process are later noticed via Regulation 55’.121 While some respondents argued for a higher standard of proof at confirmation, others thought that the confirmation of charges procedure should be abolished altogether.122 One person suggested that introducing an investigative judge into the ICC system would offer the best solution to some of the investigative and confirmation difficulties: [The top three procedural reforms:] abolish the confirmation hearing; abolish the bifurcated (even tri-furcated) trials; creation of an investigative judge. I have long been in favour of the adversarial model for ICL, but the problems with investigations at the ICC are huge, witnesses are bribed, influenced from practically all sides. I am not confident the parties can address this and at trial it is too late (cp. Kenya case). An investigative judge, in some form, can bring in the deeply needed supervision of the investigations.123

116  Prosecutor v. Bemba (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) Pre-Trial Chamber II, ICC-01/05–01/08– 424 (15 June 2009) [28]. 117  See, e.g., Respondent # 21 (proposing greater judicial control over the Prosecutor as a needed procedural reform); Respondent # 23 (arguing that ICC should ‘streamline the Pre-trial proceedings and raise the threshold bar for confirmation of charges’). 118  Respondent # 23. 119  Respondent # 16. 120  Regulations of the Court 2004, reg 55. 121  Respondent # 16. 122  Respondent # 18. 123  Respondent # 18.

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58   Jenia Iontcheva Turner Another respondent suggested that involving the defence earlier in the process would help the accused prepare to dispute unsubstantiated charges more effectively. If ad hoc counsel were assigned as soon as a new situation is opened, counsel could ‘build up the nucleus of the Defence. . . case. If then a Case opens in a Situation, the ad hoc counsel will have to hand over their case files to the newly appointed counsel for the defence’.124 Such early appointment could help secure equality of arms.125 Outside commentators echo defence attorneys’ concerns about the inefficiency and unpredictability of the confirmation process. Although the confirmation process was originally envisaged by some as a means of expediting proceedings,126 it is now widely believed to have extended and encumbered trial preparation.127 It has taken the Court on average almost one year to reach a confirmation decision after the initial appearance of the accused.128 Likewise, trials have begun, on average, more than a year and a half after a confirmation decision has been handed down, suggesting that the pre-confirmation process has not effectively narrowed the issues and expedited the proceedings.129 A number of commentators have concluded that the confirmation process is too costly and time-consuming,130 and some have called for its abolition.131 The other concern expressed by respondents—about inconsistent approaches to ­confirmation—is also widely shared. Scholars have commented on the disagreements among judges about the purpose of the confirmation hearing, the standard of proof, the timing and scope of pre-confirmation disclosure, and the division of responsibilities between Pre-Trial and Trial Chambers.132 124  Respondent # 22. In the same vein, see Jens Dieckmann and Christina Kerll, ‘Representing the “General Interests of the Defence”: Boon or Bane?—A Stocktaking of the System of ad hoc Counsel at the ICC’ (2011) 11 Intl Crim L Rev 105, 134–35. 125  Respondent # 22. 126  See, e.g., Prosecutor v. Bemba (Decision on the Evidence Disclosure System and Setting a Timetable for Disclosure Between the Parties) Pre-Trial Chamber III, ICC-01/05–01/08–55 (31 July 2008) [15], [19]; Kai Ambos and Dennis Miller, ‘Structure and Function of the Confirmation Procedure Before the ICC from a Comparative Perspective’ (2007) 7 Intl Crim L Rev 335, 348. 127 See, e.g., Håkan Friman, ‘Trial Procedures—With a Particular Focus on the Relationship Between the Proceedings of the Pre-Trial and Trial Chambers’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 921, 930; Volker Nerlich, ‘The Confirmation of Charges Procedure at the International Criminal Court: Advance or Failure?’ (2012) 10 J Intl Crim Just 1339, 1354 (hereafter Nerlich, Confirmation of Charges Procedure); Expert Initiative (n 104) 93–95; WCRO Confirmation of Charges Report (n 29) 85–86. 128  See, e.g., Ignaz Stegmiller, ‘Confirmation of Charges, in The Law and Practice of the International Criminal Court’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 905 (hereafter Stegmiller, Confirmation of Charges); Expert Initiative (n 104) at 93. 129  Stegmiller, Confirmation of Charges (n 128) 905–06; Expert Initiative (n 104) 93. 130  Nerlich, Confirmation of Charges Procedure (n 127) 1354; Stegmiller, Confirmation of Charges (n 128) 906. 131 Christoph Safferling, International Criminal Procedure (OUP 2012) 343; William Schabas, International Criminal Court: A Commentary on the Rome Statute (OUP 2010) 735; Expert Initiative (n 104) 93–95, 100. 132 See, e.g., Triestino Mariniello, ‘Questioning the Standard of Proof: The Purpose of the ICC Confirmation of Charges Procedure’ (2015) 13 J Intl Crim Just 579, 580, 589, 595–96; Stegmiller, Confirmation of Charges (n 128) 897.

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Defence Perspectives on Fairness and Efficiency   59 While there is broad consensus that Chambers employ inconsistent standards at confirmation and that the process is too lengthy, defence attorneys and other c­ ommentators tend to disagree on the question of whether judges have been sufficiently rigorous in filtering out charges. Whereas defence attorneys believe that judges are not sufficiently rigorous, other observers have concluded that the Pre-Trial Chambers have generally succeeded in disposing of unsupported charges at confirmation.133 In support of the latter view, commentators point out that as of May 2014, Chambers had confirmed charges against 12 suspects and declined to confirm charges against four suspects—this represents a 25 per cent declination rate, suggesting judicial rigour in reviewing the evidence.134 Furthermore, in two of the 12 cases in which charges were ultimately confirmed, the prosecution had to reconsider the initial charges filed or conduct further investigations, after judges suggested that they would not confirm the charges as originally filed.135 Pre-Trial Chambers have also reduced the temporal and territorial scope of charges in a number of cases.136 Yet some survey respondents focused instead on the Court’s failure to dispose of other arguably unmeritorious cases at confirmation137—the Ngudjolo case, which resulted in an acquittal; the cases against Ruto and Sang, which were terminated by the Trial Chamber for insufficient evidence;138 and the cases against Kenyatta and Muthaura, which were ultimately withdrawn by the Prosecutor for lack of evidence.139 These observers believe that the Court should be even stricter in its review of prosecutorial charging decisions. How one interprets these figures depends on one’s view of the Kenyan cases, which represent four of the five cases where charges were terminated or withdrawn after confirmation. The Prosecutor of the ICC has claimed that bribery and intimidation led witnesses in these cases to recant or to refuse to cooperate with the prosecution, which resulted in the ultimate termination or withdrawal of charges.140 By contrast, a number of defence attorneys believe that the prosecution failed to investigate and present to the Court credible evidence that the defendants were responsible for the crimes charged. In the end, whether or not one agrees with defence views on the effectiveness of the filtering mechanism at confirmation, it is important to take them into account as the Court considers whether and how to restructure this key stage of the proceedings.

133  Expert Initiative (n 104) 81; Nerlich, Confirmation of Charges Procedure (n 127) 1347–48. 134  Expert Initiative (n 104) 80. 135  ibid 80–81. 136  ibid 88. 137  See, e.g., Respondent # 23; see also Expert Initiative (n 104) 85. 138  Prosecutor v. Ruto & Sang (Public Redacted Version of: Decision on Defence Applications for Judgments of Acquittal) Trial Chamber V(A), ICC-01/09–01/11 (5 April 2016) [131] (reasons of Judge Fremr); [135] (reasons of Judge Eboe-Osuji). 139  Prosecutor v. Kenyatta (Notice of withdrawal of the charges against Uhuru Muigai Kenyatta) Office of the Prosecutor, ICC-01/09–02/11–983 (5 December 2014); Khan & Shah (n 8) 218–19; Respondent # 10. 140  See, e.g., Ruto & Sang [140]–[150] (reasons of Judge Eboe-Osuji) (noting that witness interference ‘impede[s] a neutral appreciation’ of the prosecution’s case).

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60   Jenia Iontcheva Turner

5.  Interlocutory Appeals Another procedure that defence attorneys identified as needing reform concerns interlocutory appeals. Article 82(1)(d) of the Rome Statute provides that a party may appeal: A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.141

In order to file an interlocutory appeal, a party must first obtain permission from the Pre-Trial or Trial Chamber that issued the impugned decision. Overall, respondents expressed dissatisfaction with the way the interlocutory appeal mechanism has operated at the ICC. A majority opined that Pre-Trial and Trial Chambers grant leave to file an interlocutory appeal too sparingly. As one attorney complained: The ICC procedure requires leave to appeal to be granted before an interlocutory appeal can be filed. All applications for leave to appeal were rejected. It did not matter whether the leave sought related to a fundamental fair trial violation as right of notice or significant defects in the form of the indictment.142

Several respondents therefore recommended reforms to the interlocutory appeal process. One suggested that parties should not need to request permission to appeal confirmation decisions.143 Others thought that the Appeals Chamber should decide whether to grant leave to appeal on interlocutory matters.144 More broadly, respondents thought the Court should grant authorization to appeal preliminary matters more frequently.145 A quick review of defence motions for leave to appeal shows that judges are in fact quite parsimonious when it comes to permitting interlocutory appeals. Out of 458 issues on which the defence sought leave to appeal, chambers granted leave for only 51 issues, yielding an average grant rate of 11 per cent.146 By contrast, chambers granted leave to the prosecution’s requests almost three and half times more often. Out of 90 issues for

141  Rome Statute 1998, art 82(1)(d). 142  Respondent # 23; see also Respondent # 18 (‘I think the leave to appeal, if necessary at all, should be decided by the A Ch. denying leave by the same TC or PTC will be easily experienced as unduly limiting appeal.’); Respondent # 21 (‘The Defence filed for leave to appeal against the Preliminary Hearing Decision and the Judge who had decided the issue also decided the leave to appeal which she rejected.’). 143  Respondent # 14. 144  Respondents ## 18, 21. 145  Respondents ## 7, 18, 23. 146  The grant rate differed widely from cases to case. In Lubanga, the defence sought leave to appeal a total of 55 issues, but judges granted the leave to appeal as to only 15 issues (yielding a grant rate of 27%). In Prosecutor v. Gaddafi and Al-Senussi, the Pre-Trial Chamber granted leave to appeal on only one out of seven issues raised by the defense, yielding a grant rate of 14%.

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Defence Perspectives on Fairness and Efficiency   61 which the prosecution requested leave to appeal, chambers granted leave on 34 issues, yielding an average grant rate of 38 per cent.147 One cannot tell, simply based on these figures, whether the requests for leave to appeal by the prosecution and by the defence are equally meritorious. The defence filed almost 2.5 times more requests for interlocutory appeals than the prosecution; in those requests, defence attorneys raised on average five times more issues than did prosecutors.148 It is therefore possible that a greater percentage of defence motions failed to meet the criteria for interlocutory appeals. On the other hand, precisely because the defence tends to file more motions for interlocutory appeals, to the extent that the regime is not functioning properly, it affects the defence more frequently than the prosecution. Furthermore, some of the issues on which leave to appeal is denied, such as the confirmation of charges or the recharacterization of charges, affect the accused directly and significantly.149 Defence attorneys’ concern about the low rate of success of requests for interlocutory appeal is therefore understandable. Because Chambers grant leave for interlocutory appeals so rarely, a number of inconsistent decisions by Pre-Trial and Trial Chambers remain in place, reducing the predictability of ICC procedures. For that reason, it is not only defence attorneys, but also outside observers who have argued that leave to appeal should be granted more generously and that a separate chamber responsible for granting leave to appeal should be created.150 Respondents did not speculate what might drive the frequent rejections of requests for interlocutory appeals. Judges may not like having their procedural decisions reviewed on appeal, or they may simply believe that the defence is not raising meritorious issues. Judges may also be concerned that interlocutory appeals take up too much time. Scholars studying the ad hoc tribunals have argued that judges there restricted interlocutory appeals as a means of expediting proceedings.151 This may therefore be one area in which ICC judges, too, are limiting defence representation to promote efficiency.

147  Here, too, the grant rate varies significantly from case to case. In Lubanga, Chambers granted 63% of the prosecution’s requests for leave to appeal. 148  The defense filed 133 requests to file interlocutory appeal, while the prosecution filed 55 requests. 149  Stegmiller, Confirmation of Charges (n 128) 895; Prosecutor v. Bemba (Public Redacted Version of ‘Decision on “Defence Request for Leave to Appeal the Decision on the Temporary Suspension of the Proceedings Pursuant to Regulation 55(2) of the Regulations of the Court and Related Procedural Deadlines” ’ of 11 January 2013) Trial Chamber III, CC-01/05–01/08-2487-Red (16 January 2013) [33], [35]–[36]. 150  WCRO Expediting Proceedings Report (n 6) 52 (citing Christopher Staker, ‘Article 82: Appeal against decision of acquittal or conviction or against sentence’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Nomos 1999) 1029, 1031); Expert Initiative (n 104) 163–64. 151  See, e.g., Maximo Langer and Joseph W. Doherty, ‘Managerial Judging Goes International, But Its Promise Remains Unfulfilled’ (2011) 36 Yale J Intl L 241, 250.

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6.  Victim Participation Defence attorneys also expressed concerns about victim participation in ICC proceedings. In a departure from its predecessor international criminal courts, the ICC allows extensive victim participation at pre-trial and trial. This novel procedural framework reflects a reorientation away from a purely retributive model of justice toward a more restorative one.152 Acting through legal representatives, victims can take part during both pre-trial and trial proceedings, although most modes of participation require judicial permission. Victims’ legal representatives have been allowed to question defence witnesses at confirmation hearings, as long as victims’ personal interests would be affected by the ­testimony.153 At trial, victims have been permitted to make oral and written submissions, question witnesses, present and challenge evidence, and be heard as witnesses.154 If the accused is convicted, victims can also take part in the reparations proceedings.155 In part because the crimes adjudicated by the ICC have so many victims, the process of determining who qualifies as a victim participant has proven difficult, lengthy, and costly.156 Victim applications must be reviewed by the Registry, Chambers, and the parties, and identifying information must often be redacted.157 The process of redacting and reviewing the applications has consumed extensive resources. Commentators have criticized both the application process and the participation scheme for victims as inefficient, cumbersome, and costly.158 They have also argued that victim participation interferes with the accused’s right to a fair trial, for two principal reasons: 1) it taxes the already limited resources of defence counsel by requiring counsel to expend time reviewing victim applications and responding to victim submissions; and 2) it violates equality of arms by pitting the defence against multiple accusers.159 At this point, critiques of victim participation are so widespread that, as one commentator concluded, ‘alarmed accounts outweigh by far the more positive and hopeful ones’.160 It is therefore not surprising to find that a number of defence attorneys are also concerned about the practice. Roughly 27 per cent of respondents stated that victim 152 Sergey Vasiliev, ‘Victim Participation Revisited—What the ICC Is Learning About Itself ’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 1133, 1134–36 (hereafter Vasiliev, ‘Victim Participation Revisited’). 153  Christine Van den Wyngaert, ‘Victims Before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge’ (2011) 44 Case Western Reserve J Intl L 475, 485 (hereafter Van den Wyngaert, ‘Victims Before International Criminal Courts’). 154  ibid 486; Vasiliev, ‘Victim Participation Revisited’ (n 152) 1133, 1164. 155  Rome Statute 1998, art 75(2). 156  Van den Wyngaert, ‘Victims Before International Criminal Courts’ (n 153) 481–82; Vasiliev, ‘Victim Participation Revisited’ (n 152) 1147–63. 157  Van den Wyngaert, ‘Victims Before International Criminal Courts’ (n 153) 481–82. 158  ibid; Vasiliev, ‘Victim Participation Revisited’ (n 152) 1138–43; Expert Initiative (n 104) 198. 159  Van den Wyngaert, ‘Victims Before International Criminal Courts’ (n 153) 495; Vasiliev, ‘Victim Participation Revisited’ (n 152) 1172; Expert Initiative (n 104) 181. 160  Vasiliev, ‘Victim Participation Revisited’ (n 152) 1139.

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Defence Perspectives on Fairness and Efficiency   63 participation at the ICC violates the rights of the accused, and another 20 per cent believe that it does so ‘in some respects’. In open-ended responses, attorneys explained that the ICC has not managed victim participation properly and that victim participation exacerbates the imbalance between prosecutorial and defence resources: [M]y experience . . . is that it is a waste of time to have victims participating directly. Their contribution in the trial is slight—they merely echo the prosecution—and the resources spent on them would be better employed on the defence. Come reparations their role obviously increases. The whole victim issue is a mess in my view—and in the view of many of the judges.161 Victims’ intervention has been poorly managed. Victims counsel have often misconstrued their role as independent participants in the trial process to protect the rights of victims who deserve to have a voice in the determination of crimes perpetrated against them. Victims may be witnesses for the prosecution as well. That does not make victim counsel associates of the Prosecution in the trial proceedings. Unfortunately, victim counsel, and partisan NGO and Special interests purporting to act on behalf victims have often tainted the trial proceedings with the advancement of their activist agenda, making fair trial hard to attain.162 It has nearly reached a level of a third ‘party’ rather than expressing only views and concerns ‘where the personal interests of the victims are affected’ pursuant to Article 68(3). Meaningful participation has been lost to blanket participation.163

Other respondents also complained that the Court does not adequately test evidence of victim status or other allegations by victim participants: The representation for victims prevent[s] the case proceeding as a normal trial. In effect there are 2 prosecution counsel. The Judges can take into account victims’ wishes based upon no supporting evidence.164 Non-disclosure of details to verify if victims are authentic. No proper review of veracity of victim accounts and no action or prosecution has been undertaken against false claims. Use of intermediary organizations continues unsupervised.165

In a subsequent question, asking respondents to state the top three procedural reforms that the ICC ought to institute, three respondents suggested that the ICC should limit victim participation—for example, by not allowing victims to take part in the pre-­confirmation stage or by limiting their participation to the reparation stage.166 Victim participation therefore appears to be an important reform priority among defence attorneys, just as it is among ICC commentators and judges.

161  Respondent # 10. 162  Respondent # 23. 163  Respondent # 16; see also Respondent # 14 (‘They usually work like a second prosecutor which impinges on the right to equality of arms.’). 164  Respondent # 21. 165  Respondent # 13. 166  Respondents ## 10, 14, 21.

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64   Jenia Iontcheva Turner

IV.  The Future of Managerial Judging and Procedural Fairness in International Criminal Procedure Efficiency has become a common refrain in the administration of international criminal justice. Yet the survey of ICC defence attorneys suggests that, for the most part, judges have not elevated efficiency above other values in the criminal process. To the extent that a focus on efficiency has impaired defence representation, this has been primarily the result of administrative, not judicial decisions.167 While defence attorneys do not believe that judicial managerialism is threatening defence rights at the ICC, they express concern about other procedural decisions. In the defence’s view, judges have not done enough to filter out unsubstantiated charges, ensure prompt and comprehensive disclosure, permit interlocutory appeals, or limit victim participation. More broadly, defence attorneys believe that the Court could do more to provide equality of arms between the parties. Similar critiques have been made by academic commentators and international judges and are not idiosyncratic defence views. To address some of the problems identified by defence attorneys, international criminal courts need to ensure that sufficient resources for defence investigations and representation are made available. When it comes to the ICC, given the emphasis on cost-cutting across the Court, including in the prosecution and victim support sections, it is unlikely that legal aid would be increased significantly in the near future. Still, the main takeaway from the defence survey is that the ICC—and other international courts dealing with similar funding conundrums—could take other measures that help promote equality of arms between the parties while not consuming additional resources. In fact, many of the measures proposed by defence attorneys—filtering out weak charges more aggressively, ordering earlier and broader disclosure by the prosecution, and limiting victim participation—can be pursued consistently with an emphasis on efficiency. Consider first the idea that judges could do more to manage the confirmation process and filter out unsubstantiated charges. A number of commentators have put forth similar proposals to promote efficiency at the ICC. For example, two recent expert reports on expediting ICC proceedings advocated that chambers should ‘more actively seek to control and regulate the process of confirmation’.168 One of these reports also called on the prosecutor to ‘put in place a stricter and more critical reviewing process’.169 To allow for more effective judicial review of the charges, commentators have also urged the prosecution to develop a classification system for investigative paperwork.170 Some have 167 Defence attorneys did state that judges have unduly limited their ability to file interlocutory appeals, which is likely explained by efficiency concerns. 168  Expert Initiative (n 104) 95. 169  ibid 96. 170  ibid 10.

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Defence Perspectives on Fairness and Efficiency   65 further opined that, to facilitate the review process and streamline proceedings, the prosecution should conclude investigations before the confirmation stage.171 If managerial judging takes this direction with respect to the confirmation process, it would place a heavier burden on the prosecution and benefit the defence, enhancing procedural equality between the parties.172 Another reform suggested by defence attorneys—reform of the disclosure process— could also help advance equality of arms while simultaneously enhancing efficiency. Broad prosecutorial disclosure can help to offset the limited investigative resources of the defence and ensure the fairness of the proceedings. It can also minimize disclosure disputes, which have been a key source of delay at the ICC and other international criminal courts. Commentators have argued that, to expedite proceedings, judges must push for earlier and broader disclosure and adopt uniform standards with respect to disclosure and redactions.173 Some have also argued that chambers should require the prosecution to identify how each piece of disclosed evidence relates to the charges. This would, in their view, ‘expedite proceedings and [] prepare properly for the confirmation hearing’, but also ‘ensure that the defence [is] prepared under satisfactory conditions’.174 Likewise, some experts have urged prosecutors to apply a liberal approach to disclosure and adopt a presumption of disclosing all documents, unless a good reason for withholding exists.175 How successfully the idea of liberal disclosure can be implemented at international criminal courts, however, is an open question. A main source of disclosure delay has been the difficulty of ensuring witness protection, which remains a vexing problem.176 In light of these challenges, an efficiency-oriented judge may choose to postpone ordering disclosure that is not strictly related to the confirmation of charges until after the confirmation hearing, so as to avoid the delays associated with redactions and other forms of witness protection.177 It is therefore possible to envision a managerial judge streamlining disclosure in a way that undercuts equality of arms. At this point, however, 171 See, e.g., Kaul, ICC of the Future (n 6) 111; Expert Initiative (n 104) 66; WCRO Expediting Proceedings Report (n 6) 17. 172  Because such measures may simply shift the burden to the prosecution, further study is needed to determine whether they will in fact advance the Court’s efficiency. It is also worth noting that reform of the confirmation process in the name of efficiency could take other shapes, which would not advance equality of arms. For example, judges could begin limiting the presentation of witnesses at confirmation and encourage the parties to rely more heavily on written evidence and summaries of evidence. Megan Fairlie, ‘The ICC Can Still Learn from the History of Written Witness Statements in International Criminal Trials . . . but Will It?’ (manuscript on file with author); Expert Initiative (n 104) 23. This would restrict the defence’s ability to challenge the prosecution’s evidence and contest the charges during confirmation. It would also delay disclosure of most evidence until after confirmation, leaving defence teams even less time to review it. 173  See, e.g., Expert Initiative (n 104) 15. 174  Van der Vyver, Time Is of the Essence (n 7) (citing Bemba (n 154) [72]). It remains highly disputed whether these in-depth analysis charts in fact advance efficiency. 175  Expert Initiative (n 104) 105. 176  WCRO Confirmation of Charges (n 29) 121; Whiting, ‘Dynamic Investigative Practice’ (n 30) 179–82. 177  cf WCRO Confirmation of Charges (n 29) 32.

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66   Jenia Iontcheva Turner most commentators tend to agree with the defence that more liberal disclosure at the ICC is both feasible and likely to expedite proceedings.178 Another area of concern to the defence is the broad interpretation of victim participation in ICC proceedings. Many defence attorneys dislike the current model of victim participation because it requires the defence to respond to multiple opponents at the same time and drains defence resources. Many also believe that victim participation has become too unwieldy and interferes with the right to an expeditious trial, and this is a concern shared by outside commentators and ICC judges. Here again, the proposals for limiting victim participation in the proceedings—for example, streamlining the victim application process, restricting the modes of victim participation, or more drastically, limiting victims’ involvement to just the reparations stage—may help bring the process closer to procedural parity between the defence and the prosecution, while also expediting the proceedings and reducing costs. In brief, when judges take measures to expedite proceedings at international criminal courts, a number of these measures could benefit the defence. Contrary to previous scholarly predictions, at least some forms of managerial justice could be reconciled with equality of arms. As the push for efficiency unfolds at the ICC, we are likely to see the prosecutor and the defence each advocating for judges to manage the proceedings in a fashion that does not impinge on their respective rights and interests.179 While standard theory predicts that the defence has the most to lose from a managerial approach to judging, the early experience of the ICC suggests that the picture is not so straightforward. Managerial judging, if coupled with a concern for equality of arms, can limit prosecutorial activity and aid the defence, while also ensuring an efficient process.

178  Expert Initiative (n 104) 105. 179 See John Jackson and Yassin M’Boge, ‘The Effect of Legal Culture on the Development of International Evidentiary Practice: From the “Robing Room” to the “Melting Pot” ’ (2013) 26 Leiden J Intl L 947, 965.

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chapter 3

N eith er H er e nor Th er e The Position of the Defence in International Criminal Tribunals Dov Jacobs1

‘She had a magic looking-glass, and she used to stand before it, and look in it, and say, ‘Looking glass upon the wall, who is fairest of us all?’ And the looking-glass would answer, ‘You are fairest of them all’. And she was contented, for she knew that the looking-glass spoke the truth’. Snow White and the Seven Dwarves, Grimm Brothers, 1812

I.  Introduction: The Symbolic Inclusion of the Defence The Nuremberg Trial was premised on the idea that the crimes committed by the Nazis should be dealt with through law, in order to provide what was perceived as a civilized answer to the barbary that had been perpetrated.2 In his opening statement, the pros­ecu­tor, Robert Jackson, famously considered that:

1  Dr Dov Jacobs is an assistant Professor of International Law at Leiden University and Trial Lawyer at the International Criminal Court. All views expressed here represent solely the views of the author and not the institutions he works for. All my gratitude goes to the editors of this volume for their patience and crucial input into making this chapter readable. 2  This legal approach to war crimes was by no means shared unanimously by the Allies. While apparently the US was strongly in favour of fair trials, Churchill was in favour of summary executions and Stalin favoured trials as a useful tool for propaganda.

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68   Dov Jacobs The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.3

It is beyond the scope of this chapter to question the false link drawn by Jackson between law and reason, which clearly ignores the function of the law as an instrument of power. But it is interesting to note that this illusion of the political neutrality of law (and more particularly of international criminal law) has plagued international criminal justice since Nuremberg and has led a number of international tribunals to claim to function in an imaginary realm disconnected from the political realities in which they operate. What is interesting to note here for the purposes of this chapter is that this attachment to law implied, at least officially, an attachment to the rights of the accused. Indeed, in his opening statement at Nuremberg, Robert Jackson went on to explain: If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law. . . . Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.4

For Robert Jackson, respect for the rights of the accused was all the more necessary in order to contrast with the practice during the Nazi regime itself: ‘But they do have a fair opportunity to defend themselves—a favor which these men, when in power, rarely extended to their fellow countrymen’.5 Indeed, denial of the principle of legality is a common feature of totalitarian regimes, and the Nazi regime was no exception, with the 1935 Penal Code providing for a person to be punished based on the fact that they would be ‘deserving of punishment according to the fundamental idea of a penal law and the sound perception of the people’.6 3  Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol 2 (International Military Tribunal 1947) 98ff, accessed 26 December 2018 (hereafter Jackson, IMT Opening Statement). 4  ibid 102. 5 ibid. 6  ‘Whoever commits an action which the law declares to be punishable or which is deserving of punishment according to the fundamental idea of a penal law and the sound perception of the people, shall be punished. If no determinable penal law is directly applicable to the action, it shall be punished according to the law, the basic idea of which fits it best’. Amendment to s 2 of the German Penal Code, enacted by the National Socialist regime in 1935. Translation by Lawrence Preuss (Lawrence Preuss, ‘Punishment by Analogy in National Socialist Penal Law’ (1935–1936) 26 Journal of the American Institute of Criminal Law and Criminology 847).

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Neither Here nor There   69 Since Nuremberg, all other international tribunals have recognized, in principle, the importance of the respect for the rights of the defence. The statutes of these tribunals all formally recognize a series of rights for the defence. As for the principle of legality, while it was not explicitly enshrined in their statutes, it was considered that it should be applied. For example, the UN Secretary General Report on the creation of the ICTY claimed without any ambiguity that ‘the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law’.7 This pronouncement was followed by some recognition of the principle in the case law of the Tribunal.8 Similarly, the Appeals Chamber of the Special Tribunal for Lebanon noted that the principle of legality, which is in many ways the cornerstone for the protection of the rights of the defence, was to be considered as a jus cogens norm of international law.9 Finally, the Rome Statute for the International Criminal Court formally includes the principle of legality.10 It would therefore appear that from Nuremberg to Rome and beyond, there has been an increased recognition of the principle of legality by international criminal jurisdictions, or, to put it in the words of the late Antonio Cassese, first President of the ICTY, and arguably one of the founding fathers of international criminal law (ICL), ‘after the Second World War the doctrine of substantive justice . . . was gradually replaced by that of strict legality’.11 More generally, respect for the rights of the defence seems to be an accepted aspect of the work of international criminal tribunals. However, when analyzed in their globality, the practice of ICL and discourses ­surrounding this practice show that there is a constant ‘balancing away’12 of the rights of the defence. This ‘balancing away’ is made possible when one understands that respect for the rights of the accused is seen by many, not only as one of the objective of the inter­nation­al justice system, but as one amongst many means to ensure the legitimacy of the project. This has an obvious downside: the rights of the defence are being constantly balanced with other claimed objectives of international criminal justice upon which its legitimacy is also constructed, such as the fight against impunity or the recognition of the suffering of victims. This generally leads to the balancing away of the rights of the 7  Report of the UN Secretary-General Pursuant to Paragraph 2 of Security Council Res 808, UNSCOR, UN Doc S/25704 (1993) para 34. 8 For an overview of the relevant case law, see Kenneth  S.  Gallant, The Principle of Legality in International and Comparative Law (CUP 2009) 304–08. For examples of the, somewhat scant, specific reference to the strict construction of legal statutes, see William A. Schabas, ‘Interpreting the Statutes of the ad hoc tribunals’ in Lal Chand Vohrah and others (eds), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (Kluwer Law International 2003) 847, 850. 9  Prosecutor v Ayyash and others (Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging) STL-11–01/I, (16 February 2011) (STL, Appeals Chamber) para 76 (hereafter Prosecutor v Ayyash (Appeal Decision on the Applicable Law)). 10  Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/CONF.183/9 (in force 1 July 2002), art 22 (hereafter Rome Statute 1998). 11  Antonio Cassese, International Criminal Law (2nd edn, OUP 2008) 40 (hereafter Cassese, ICL). 12  Mirjan Damaška, ‘Reflections on Fairness in International Criminal Justice’ (2012) 10(3) J of Intl Crim Justice 611, 615.

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70   Dov Jacobs defence on a number of levels that will be explored in the remainder of this chapter: the foundational balancing away (II), the procedural balancing away (III), the institutional balancing away (IV), and finally the systemic balancing away (V). This analysis will lead us to some concluding thoughts on the role of the defence in international criminal proceedings (VI).

II.  The Foundational Balancing Away of the Defence The foundational balancing away of the defence in international criminal law operates more particularly in three ways: through customary law determination, through teleological interpretation, and through the taking into account of the moral condemnation of the conduct.

A.  Customary Law as a Vehicle for Moral Condemnation The most common way that international tribunals have introduced moral con­sid­er­ ations in their reasoning is through the process of establishing the existence of customary rules of international criminal law.13 As is well known, one of the difficulties in determining the existence and the exact content of a customary norm is the fluctuating weight given to State practice and opinio juris. This is not a novel problem. The fact that international tribunals vary in their consideration of the importance of State practice and opinio juris has been widely discussed in the literature and explanations have been put forward to explain it. One popular explanation is that there is a moral sliding scale according to which the more morally charged the issue is, the more likely courts are susceptible to relying on opinio juris and ignore State practice to the contrary.14 A more accurate way of presenting this sliding scale is that it depends not on an objective moral dimension of the issue, but on the judge’s own subjective evaluation of its morality. This approach ultimately leads to the confusion between opinio juris and moral condemnation, and therefore to a conflation of moral condemnation and criminalization, to the point where one can hardly speak of a process of customary law formation and we 13  This part relies on work published by the author in Dov Jacobs, ‘International Criminal Law and Legal Positivism’ in Jean d’Aspremont and Jörg Kammerhofer (eds), International Legal Positivism in a Post-Modern World (CUP 2014) 451 (reprinted with permission) (hereafter Jacobs, ‘ICL and Legal Positivism’). 14  See Frederic L. Kirgis, ‘Custom on a Sliding Scale’ (1987) 81 American J of Intl L 146. And for a more recent conceptualization, Anthea Elizabeth Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’ (2001) 95 American J of Intl L 757.

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Neither Here nor There   71 are faced with a traditional natural law argument. While it is perfectly legitimate that moral considerations be considered when determining the coming into existence of a customary norm, as with any other legal norm, it is less legitimate for judges to substitute their own moral evaluation in their determination of the existence of a customary norm. Examples of this abound in the case law of international tribunals. In Tadic, the Appeals Chamber, when considering the application of prohibitions of certain means and methods of warfare to non-international armed conflicts, adopted the following reasoning: Indeed, elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in inter­ nation­al wars, cannot but be inhumane and inadmissible in civil strife.15

This claim, as a basis for prohibition, is hardly reconcilable with any of the requirements of the customary law process. In the following paragraphs the Appeals Chamber gave only a handful of examples of alleged opinio juris, which mostly related to the reaction of the European Union and the US to the use of chemicals weapons against the Kurds in Iraq, and could not possibly be indicative of a general view of a sufficient number of States. The only example of State practice given is a 1972 Nigerian Supreme Court decision that related only to perfidy.16 This is undoubtedly a weak demonstration of  the existence of a customary norm, but even this minimal effort is sometimes ­completely absent. For example, in Kupreskic, the Trial Chamber, found that the Martens Clause17 illustrated the fact that ‘principles of humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent’18 and then applied it to the question of reprisals against civilians. It should be noted that the Trial Chamber earlier rejected the direct application of the Martens Clause as a source of ICL.19 This practice of nominal adherence to traditional criteria of customary international law has been 15  Prosecutor v. Duško Tadić (Decision on the Defence motion for interlocutory appeal on jurisdiction) IT-94–1, (2 October 1995) (ICTY, Appeals Chamber) para 119 (hereafter Prosecutor v. Tadić (Appeal Decision on Jurisdiction)). 16  ibid 125. 17  This clause was introduced in the 1899 Hague Convention on the Customs of War on Land and states that: ‘Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience’. 18  Prosecutor v. Kupreškić and others (Judgment) IT-95-16-T, (14 January 2000) (ICTY, Trial Chamber) para 527. 19  ibid para 525.

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72   Dov Jacobs noted in the literature,20 and, as pointed out by Robert Cryer, this illustrates the fact that international tribunals, while adopting a natural law perspective, usually veil it in a positivist reasoning.21

B.  Interpreting International Criminal Law and the Fight against Impunity Another way in which the defence is balanced out on a foundational level is by the use of a teleological interpretation of international criminal instruments through the lens of the ‘fight against impunity’, by referring to the traditional tool of the ‘object and purpose’ dimension of treaty interpretation under Article 31 of the Vienna Convention on the Law of Treaties. I have argued elsewhere why Article 31 of the Vienna Convention should be excluded altogether as an interpretative framework for the Rome Statute because, among other reasons, the Rome Statute provides in its Article 25 a lex specialis rule of interpretation.22 What is interesting to note here is that reference to the object and purpose of a statute creates particular difficulties in relation to the principle of legality. For many advocates of ICL, the rationale behind the creation and development of international criminal tribunals is to prosecute those responsible for those acts that shock the conscience of mankind, therefore putting an end to impunity. ICL illustrated, according the ICTY Appeals Chamber, the move from a sovereignty-based approach to international law to a human rights-based approach to international law.23 As a result, the philosophy of ICL is geared towards victims, as shown by the increased recognition of the rights of victims in inter­nation­al criminal tribunals.24 The case could therefore certainly be made that this ultimate ambition of ICL should be taken into account in the interpretation of the statutes, under the heading of ‘object and purpose’. However, this will necessarily contradict one of the core components of the principle of legality, that of strict construction. Indeed, simply put, while the claimed object and purpose of the Rome Statute might justify an expansive reading of the crimes within its jurisdiction, in order to protect more victims, the rule of strict interpretation on the contrary must be considered as requiring that the crimes be defined narrowly to protect the rights of the accused.25 While some might argue that the rule of strict interpretation should be seen as a last resort rule of interpretation, when all other rules 20 See e.g., Larissa van den Herik, ‘The Decline of Customary International Law as a Source of International Criminal Law’ in Curtis Bradley (ed), Custom’s Future: International Law in a Changing World (CUP 2016) accessed 26 December 2018. 21  Robert Cryer, ‘The Philosophy of International Criminal Law’ in Alexander Orakhelashvili (ed), Research Handbook on the Theory and History of International Law (E. Elgar 2011) 232, 250. 22  Jacobs, ‘ICL and Legal Positivism’ (n 13). 23  Prosecutor v Tadić (Appeal Decision on Jurisdiction) (n 15) 55. 24  Carsten Stahn, Hector Olasolo, and Kate Gibson, ‘Participation of Victims in Pre-Trial Proceedings of the ICC’ (2006) 4 J of Intl Crim Justice 219. 25  On this, see Darryl Robinson, ‘The Identity Crisis of International Criminal Law’ (2008) 21 Leiden J of Intl L 925.

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Neither Here nor There   73 of interpretation fail, which would indeed be consistent with the way it is presented in the case law of international tribunals,26 I would argue that this approach is not consistent with the provision of the Rome Statute itself, which clearly puts forward the rule of strict interpretation as the primary and sole rule of interpretation. Beyond the question of the strict interpretation of the definition of criminal offences, there is often a balancing away of the interests of the defence in the practice of the ­tribunals in favour of other interests, such as the ‘fight against impunity’. An illustration can be given of this tension: the question of the recharacterization of facts at the ICC. The Rome Statute provides for a detailed framework on what the charges against an accused should contain and, more specifically, about what organ of the court has the responsibility to determine the legal qualification of the facts and how it might change them. In a nutshell, while there is some flexibility for changing the charges in the ­pre-trial phase, once the trial has started the only change that is possible is the withdrawal of a particular charge. At no point, either in the Rome Statute or the Rules of Procedure and Evidence, is there any mention of the possibility for judges to legally recharacterize the facts after commencement of trial.27 The legal framework is therefore clear: if the prosecutor charges a particular crime and fails to prove its constitutive elements, the accused should be acquitted, even if the evidence put forward might have proven the commission of another crime. However, the judges adopted a Regulation in the Regulations of the Court according to which: In its decision under article 74, the Chamber may change the legal characterization of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.28

When this regulation was used for the first time in the Lubanga case and subsequently challenged by the defendant, the Appeals Chamber held that: Mr Lubanga Dyilo’s interpretation of article 61 (9) of the Statute bears the risk of acquittals that are merely the result of legal qualifications confirmed in the pre-trial phase that turn out to be incorrect, in particular based on the evidence presented at the trial. This would be contrary to the aim of the Statute to ‘put an end to impunity’ (fifth paragraph of the Preamble). The Appeals Chamber is of the view that a principal

26  See e.g., Prosecutor v. Ayyash (Appeal Decision on the Applicable Law) (n 9) para 32; Prosecutor v. Katanga (Judgment pursuant to article 74 of the Statute) ICC-01/04–01/07, (7 March 2014) (ICC, Trial Chamber II) para 53. 27  For a detailed account of this framework see Dov Jacobs, ‘A Shifting Scale of Power: Who is in Charge of the Charges at the International Criminal Court?’ in William A. Schabas, Niamh Hayes, and Yvonne McDermott (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate 2013) accessed 26 December 2018 (hereafter Jacobs, ‘Shifting Scale of Power’). 28 ICC, Regulations of the Court, adopted by the judges of the Court on 26 May 2004, 5th Plen Sess, ICC Official Documents ICC-BD/01-01-04, reg 55.

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74   Dov Jacobs purpose of Regulation 55 is to close accountability gaps,29 a purpose that is fully consistent with the Statute.30

This reasoning finds an echo in academic literature. For example, Gilbert Bitti, also a senior legal officer at the ICC, argues that it would be contrary to the primary goal of the court, namely to end impunity, if the Trial Chamber were not able to change the legal characterization of facts.31 The tension of the Appeals Chamber’s reasoning with perceived interests of the defence is obvious. Whereas the application of the statutory framework would lead to the acquittal of the defendant, the reference to the goal of ICL by the judges has been used as a justification to adopt a regulation that disfavours the accused. However, one can wonder whether such a broad teleological approach can be an ad­equate legal justification for a statutory provision. It could justify adopting any number of measures that would reduce ‘impunity gaps’ to the detriment of the rights of the accused, whether in the interpretation of crimes or the determination of the applicable procedural framework. The question, therefore, ought not to be whether a provision is in conformity with the objectives of the statute, but rather whether those objectives allow for its adoption. In this sense, it is unlikely that such a polymorphous and indeterminate notion as ‘the end of impunity’ can specifically justify the creation of any new legal provision.32

C.  The Ultimate Balancing Away on the Basis of Moral Condemnation As noted previously, the Nuremberg trial was presented as a model for a legal (and therefore, in the eyes of Jackson, a reasonable) answer to the commission of mass atrocities, with a corresponding respect for the presumption of innocence and the rights of the defence. However, the reality of the Nuremberg trial showed that there was 29  The Appeals Chamber inserted here some reference to academic literature on the purpose of the challenged Regulation, which is rather surprising. Indeed, given the fact the Regulations of the Court were adopted by the judges themselves, you would expect that they would not need to resort to outside sources to determine the purpose of the regulation. 30  Prosecutor v. Thomas Lubanga Dyilo (Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled ‘Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’) ICC-01/04–01/06 OA 15 OA 16, (8 December 2009) (ICC, Appeals Chamber) para 77. 31  Gilbert Bitti, ‘Two Bones of Contention Between Civil and Common Law: The Record of the Proceedings and the Treatment of Concursus Delictorum’ in Horst Fischer, Claus Kress, and Sascha Rolf Lüder (eds), International and National Prosecution of Crimes Under International Law (Spitz 2001) 272, 287. See also, Carsten Stahn, ‘Modification of the Legal Characterization of Facts in the ICC System: A Portrayal of Regulation 55’ (2005) 16 Crim L Forum 1, 3. 32  Jacobs, ‘Shifting Scale of Power’ (n 27) 205–22.

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Neither Here nor There   75 an immediate balancing away of the defence on the basis of the moral condemnation attached to the gravity of the crimes committed, crimes which involved ‘moral as well as legal wrong’, to the point where their authors are set aside from humanity as a consequence.33 Indeed, Jackson insists on the fact that it is the accused ‘abnormal and inhuman conduct which brings them to this bar’, rather than the fact that ‘they yielded to the normal frailties of human beings’.34 The moral condemnation of the acts also found its way in the judgment itself, where the judges took a position on the principle of legality that negated its application: In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.35

Since then, international criminal law case law has often witnessed the further bal­an­ cing away of fundamental rules relating to the rights of the defence on the basis of the requirement of taking into account the moral condemnation surrounding international crimes. Examples abound, such as the seminal Tadić judgment previously mentioned above. Another example: in the Čelebići judgment, the Trial Chamber found: It could be postulated, therefore, that the principles of legality in international crim­ inal law are different from their related national legal systems with respect to their application and standards. They appear to be distinctive, in the obvious objective of maintaining a balance between the preservation of justice and fairness towards the accused and taking into account the preservation of world order.36

This is a perfect example of balancing away of the defence: how can the rights of the defence be any match to the ‘preservation of world order’? Moreover, this has a practical impact on the perception of the role of the defence in the proceedings: if the rights of the defence are to be balanced with the ‘preservation of world order’, it follows that a defendant (or his counsel) advocating for a better respect of the rights of the accused could automatically be perceived as going against world order. 33  Jackson, IMT Opening Statement (n 3) 102. 34 ibid. 35  Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol 22 (International Military Tribunal 1947) 462. Cassese has noted that ‘when dealing with ex post facto law, the IMT was rather reticent and indeed vague, as is apparent from, inter alia, the glaring discrepancy between the English and the French text of the judgment’ (Antonio Cassese, The Human Dimension of International Law (OUP 2008) 460), noting in the footnote that the French version of the judgment does not go as far as to claim that the maxim has no application at all. 36  Prosecutor v. Mucić and others (Judgment) IT-96-21-T, (16 November 1998) (ICTY, Trial Chamber) paras 403–05.

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76   Dov Jacobs Interestingly, the moral condemnation surrounding international crimes is such that scholars traditionally associated with a more or less classical positivist tradition of inter­nation­al legal theory have shown a willingness to move away from it when it comes to international prosecutions. For example, Hans Kelsen, commenting on the Nuremberg judgment, acknowledged that the Tribunal had created ex post facto law, but considered that the moral gravity of the acts of the accused allowed for the punishment nonetheless because ‘to punish those who were morally responsible for the international crime of the Second World War may certainly be considered as more important than to comply with the rather relative rule against ex post facto laws, open to so many exceptions’.37

III.  The Procedural Balancing Away of the Defence The position of defence counsel within the daily procedural life of international tribunals will always be a difficult one. Indeed, while their primary function is to protect the interests of his client, this is done by keeping the institution in check. This applies both in relation to the prosecutor, which is an organ of the court, and in relation to the judges. Defence rights are a shield against the arbitrariness of judicial decision-making and mistakes in the prosecution case. As a result, the defence will always be seen as being in opposition to the institution, rather than as part of it. What is important to note is that the idea that the rights of the defence can be balanced with other identified interests also finds its way in procedural considerations. Indeed, there are two ways to approach procedure. The first way, which is rather radical, is to see the function of criminal procedure as having one sole purpose: that of ensuring that the trial is fair for the accused. Under this approach, the protection for the rights of the defence is the sole yardstick of determination of the adequacy of a procedural rule and of the evaluation of whether it is being applied correctly. Any other interest should therefore give way to the rights of the defence, in case of a contradiction or doubt. This approach, however, is far from dominant. The second way is to see procedure as ensuring that various (sometimes competing) interests, among which the rights of the defence are but one, are taken into account. Under this approach, the judges are constantly in the process of balancing interests. In practice, this is often done to the detriment of the accused. 37  Hans Kelsen, ‘Will The Judgment In The Nuremberg Trial Constitute A Precedent In International Law?’ (1947) 1(2) Intl L Q 153, 165. This statement is however less surprising in the context of Kelsen’s writings in the area of international law, more particularly ICL and peace, where he more readily made concessions on his usual approach to positivism. On this issue, see Andrea Gattini, ‘Kelsen’s Contribution to International Criminal Law’ (2004) 2 J of Intl Crim Justice 795; Danilo Zolo, ‘Hans Kelsen: International Peace through International Law’ (1998) 9 Eur J of Intl L 306.

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Neither Here nor There   77 Indeed, this is due to the fact that procedure is often seen by outsiders—and sometimes even by insiders—as a cold bureaucratic framework meant to obscure the conduct of the trial. However, procedure is not a technicality. It is a societal normative and moral choice to protect the rights of the accused through a fair and equitable procedure. As noted by German scholar Rudolph Jhering: ‘Form is the sworn enemy of arbitrariness, the twin sister of liberty’.38 It should be noted more generally that one reason for the balancing away of the pro­ced­ural rights of the defence is the increased recognition of equivalent fair trial rights to other protagonists of the trial, namely victims and the prosecutor.39 While there are ser­ious conceptual doubts at extending individual human rights to institutional entities such as the prosecution, it is now commonly done in international ­tribunals. A recent illustration can be found in the Bemba appeals judgment, where the President of the ICC, in a separate opinion, found that: ‘Perhaps, it is also to be kept in mind, in this connection, that the right of fair trial is a neutral right enjoyed at the ICC by the defendants, the Prosecution and the victims’.40 It would be beyond the scope of this chapter to provide a systematic overview of inter­nation­al criminal procedure. However, it is noteworthy that the trend in international criminal justice, despite the particularities of the field,41 follows a trend that can be seen in many domestic systems, that of a transactional one that treats the criminal trial as if it were a civil one opposing equal parties to a cause, as illustrated by the above cited quote in the Bemba appeals judgment.42 This is particularly true given the increased consideration for victims’ rights that changes the dynamics of the procedure. Frédéric Mégret argues, in that respect, that because there is a call for ‘repression in the name of human rights’, human rights have ‘lost even more of [their] ability to firmly arbiter fundamental issues of procedure’.43 One could even argue that, symbolically, the problem goes even deeper than simple balancing. Indeed, while the rights of the defence are traditionally understood, as all human rights, as a vertical protection against the arbitrariness of the State, their exercise by the accused in a horizontalized criminal procedure is seen as being a protection directly against the victims and their right to justice. Presented in those terms, this is a debate the accused can obviously never win, because the raison d’être of his rights—protection against abuse of power or arbitrariness— is completely removed from the conversation. 38  As quoted by Frank Montag in ‘19th Annual Antitrust Symposium: Keynote Panel Discussion’ (2016) 23(5) George Mason L Rev 1107, 1110. 39  On this, see Yvonne McDermott, ‘Rights in Reverse: A Critical Analysis of Fair Trial Rights under International Criminal Law’ in William A. Schabas, Niamh Hayes, and Yvonne McDermott (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate 2013) 165. 40  Prosecutor v. Bemba Gombo (Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute’), Concurring Separate Opinion of Judge Eboe-Osuji, ICC-01/05–01/08-3636-Anx3, (14 June 2018) para 51. 41  Frédéric Mégret, ‘Beyond Fairness: Understanding the Determinants of International Criminal Procedure’ (2009) 14 UCLA J of Intl L and Foreign Affairs 37 (hereafter Mégret, ‘Beyond Fairness’). 42  On this, see e.g., George Fletcher, ‘A Transaction Theory of Crime’ (1985) 85 Columbia L Rev 921. 43  Mégret, ‘Beyond Fairness’ (n 41) 57.

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78   Dov Jacobs Three notable examples of the balancing away of the accused from a procedural perspective will be discussed here.

A.  The Participation of Victims44 A significant change in international criminal tribunals has been the introduction of victim participation in the trial proceedings and victim reparations. This evolution that started at the ICC, was also followed at the Special Tribunal for Lebanon (STL), the Extraordinary Chambers in the Court of Cambodia (ECCC) and more recently the Kosovo Specialist Chambers.45 As such, there is no reason, a priori, to think that this development is a problem from the point of view of the defence. Indeed, the provisions on victim participation as framed in the founding documents of these tribunals tend to prioritize the rights of the defence over victim participation. For example, in the Rome Statute, Article 68(3) provides that: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

Clearly, a choice was made not to refer to victims ‘rights’, as compared to the ‘rights’ of the accused in Article 67,46 and some safeguards are provided to circumscribe victim participation: it is at the judges’ discretion, when it is demonstrated by the victims that their personal interests are affected and most importantly, when such participation is not detrimental to the rights of the accused. Equivalent safeguards can be found in the statutes of the STL and the Kosovo Specialist Chambers. In practice, things at the ICC have turned out very differently. The case law has developed in a way that the legal representative of victims (LRV) has been authorized by 44  This part relies on part of the author’s already published chapter Dov Jacobs, ‘A Tale of Four Illusions’ in Colleen Rohan and Gentian Zyberi, Defense Perspectives on International Criminal Justice (CUP 2017) (reprinted with permission) (hereafter Jacobs, ‘Tale of Four Illusions’) 45  A lot has been written about these procedures. See e.g., Christine Chung, ‘Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?’ (2008) 6 Northwestern J of Intl Human Rights 459–545; Christine Van den Wyngaert, ‘Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge’ (2011) 44 Case Western Reserve J of Intl L 475; Cherif Bassiouni, ‘Victim’s rights and Participation in ICC Proceedings and in Emerging Customary International Law’ in Richard Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Brill 2016) 233. 46 See contra the Statute of the Special Tribunal for Lebanon that, while reproducing verbatim the Rome Statute provision on victim participation (Article 17), includes it in a Part III entitled ‘Rights of Defendants and Victims’, suggesting that at the STL the rights of the defence and the rights of victims are on the same level. Statute of the Special Tribunal for Lebanon, UN Doc S/Res/1757(2007), Annex, accessed 12 October 2019.

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Neither Here nor There   79 judges to participate in virtually every stage of the proceedings, from the situation phase to pre-trial, trial, and appeal. The LRV has been granted permission to give opinions in the context of fitness to stand trial and provisional release proceedings. Procedurally, victims have a right to examine witnesses, present their own witnesses and evidence, and they have sometimes been granted automatic access to all confidential material in the cases. Essentially, judges have rendered the conditions of Article 68(3) meaningless by considering that the personal interests of victims were affected simply by any outcome of any judicial decision—rather than looking for an autonomous interest that might be at play—that by definition creates a quasi-automatic right of participation. Victims have therefore de facto been upgraded to the level of a party to the proceedings. This changes dramatically the balance of the adversarial system because the defence is in most cases faced with a second ‘prosecutor’ (the LRV), which, in addition, sometimes does not agree with the actual prosecutor. This situation exists despite the fact that judges themselves have claimed that the LRV should not act as a second pros­ecu­tor.47 Interestingly, in the Internal Rules of the ECCC, there is an explicit recognition of the ‘prosecutorial’ role of the civil parties: ‘The purpose of Civil Party action before the ECCC is to: a) Participate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution’ (rule 23(1)). Practically, this means that the defence must systematically respond to filings from victims as well as the prosecutor because the LRV is allowed to present, in addition to ‘views and concerns’ as provided for in Article 68(3), actual legal argumentation that is often taken into account by the judges and needs to be addressed by the defence. This also means that if the prosecutor gets its legal argumentation wrong in a particular circumstance (which is not unheard of at the ICC), there is always the possibility that the LRV will provide the Chamber with substitute prosecutorial arguments; a process never envisioned by the Rome Statute. Victim participation in ICC proceedings as developed by the extensive and permissive case law of the court has clearly negatively affected the rights of the defence and the balance of the criminal proceedings against the accused.

B.  Evidentiary Standards International crimes are committed in complex factual situations, often in a context of civil conflict. Evidence will either be inaccessible or investigators will be able to investigate only months, sometimes years, after the occurrence of the facts, when the material evidence will either have been contaminated or disappeared altogether. As a result, in those circumstances, the type of evidence that will be collected and put forward by the prosecutor will often not be of pristine quality, especially given the high evidentiary 47  Prosecutor v. Bemba Gombo (Decision on directions on the conduct of proceedings) ICC-01/05– 01/08–1023, (19 November 2010) (ICC, Trial Chamber III) (‘victims are participants rather than parties to the trial and shall not be considered as a support to the prosecution’ para 17).

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80   Dov Jacobs standard of proof beyond reasonable doubt. Faced with this situation, international judges are faced with a difficult policy choice: either they maintain strict rules on evidence, with the consequence of increasing the likelihood of acquittals; or they loosen the rules of evidence to take into account the reality faced by prosecutors trying to investigate international crimes. The latter solution has been favoured in international tribunals. Not only have rules of admissibility been historically low despite the procedure’s commitment to adversarialism, but both the type of evidence accepted to support a conviction and the standards applied to their evaluation have been very wide.48 In relation to forensic evidence, while practice has varied from Chamber to Chamber in various international tribunals, proof of injury of death has often been accepted based purely on testimony or NGO reports, without solid scientific evidence to back it up.

C. Expeditiousness It is unoriginal to say that international criminal trials are long and expensive. Each year, representatives of international courts must present solid arguments to donors to justify the budget of the institution. This financial pressure is a constant concern in the daily bureaucratic workings of international courts. As a consequence, while it is highly problematic, it is no surprise that this concern finds its way in the judicial arena itself. This is done through a loose use of the concept of ‘expeditiousness’. While this concept can be traditionally linked to the right of the accused to be tried without undue delay, judges have developed a notion of expeditiousness that goes beyond that in the context of the trial management function of the Chamber. As a result, expeditiousness, which is a right of the accused, has often been used to limit other rights of the accused. Such a situation arose repeatedly in all international tribunals, be it at the ICTR,49 the SCSL,50 or the ICC. In the Katanga case, Trial Chamber II considered that it was justified to limit the possibility for an accused to present admissibility challenges in order to protect the interests of said accused.51 The Gbagbo trial at the ICC provides a perfect 48  Megan A. Fairlie, ‘Due Process Erosion: The Diminution of Live Testimony at the ICTY’ (2003) 34 California Western Intl L J 47; Richard May and Marieke Wierda, International Criminal Evidence (Transnational Publishers 2002) 210–18; Patricia M. Wald, ‘To “Establish Incredible Events by Credible Evidence”: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’ (2001) 42 Harvard Intl L J 535; Peter Murphy, ‘No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials’ (2010) 8(2) J of Intl Crim Justice 539; Eugene O’Sullivan and Deirdre Montgomery, ‘The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY’ (2010) 8 J of Intl Crim Justice 511. 49 See Prosecutor v. Nyiramasuhuko and others (Decision in the matter of proceedings under Rule 15bis(D)) ICTR-98-42-T, (15 July 2003) (ICTR, Trial Chamber II). 50  Prosecutor v. Norman and others (Decision on Presentation of Witness Testimony on Moyamba Crime Base) SCSL-04-14-T, (1 March 2005) (SCSL, Trial Chamber). 51  On this, see Dov Jacobs, ‘The Importance of Being Earnest: The Timeliness of the Challenge to Admissibility in Katanga’ (2010) 23(2) Leiden J of Intl L 331, 340.

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Neither Here nor There   81 illustration of this tendency. In that trial, a number of practices have been justified by the Trial Chamber solely in order to expedite the proceedings: the use of video-links in lieu of live testimony in court,52 which do not allow for the same interaction with the witness; the admission of prior recorded testimony for about 40 per cent of prosecution ­witnesses—in some cases under rule 68(2)(b) without the witness even being crossexamined by the defence; the over-use of bar table motions—the prosecutor in that case has asked that about 70 per cent of his documentary evidence be introduced by bar table motions53—that means that the evidence will not have been tested in court through a witness. These decisions have undoubtedly sped up the proceedings, but to the detriment of fundamental defence rights, most notably the right of the defence to challenge the evidence in court.

IV.  The Institutional Balancing Away of the Defence Historically, the defence has had very little institutional recognition in international tribunals. In Nuremberg, the lack of consideration and institutional independence for the defence was such that the prosecutor did not see any problem in proposing to both nominate defence counsel and call witnesses for them, as recalled by Telford Taylor.54 The situation has evolved since then, but remains inadequate. At the ad hoc tribunals, defence issues were dealt with by a sub-office of the Registry that was also in charge of detention matters.55 There was no mechanism by which the voice of the defence could be heard within the institution. The ICTY famously provided a small room to share among defence teams and it took years for the Tribunal to gradually integrate the defence in the various discussions. This only took place after defence counsel organized under an association, the ADC-ICTY (‘Association of Defence Counsel practicing before the ICTY’), which allowed its voice to be heard. At the ICC, the same path was followed. In the founding documents (Statute and Rules of Procedure and Evidence), there is no provision giving the defence a specific voice within the institution. While the statute recognizes the prosecution as an organ of the court,56 no such recognition is afforded to the defence. The Rules merely provide that defence matters are under the responsibility of the Registry.57 It is only in the 52  Prosecutor v. Gbagbo and Blé Goudé, (Version publique expurgée des « observations de la Défense présentées à la suite de l’ordonnance de la Chambre « on the further conduct of the proceedings » du 9 février 2018 (ICC-02/11–01/15–1124) » (ICC-02/11–01/15-1157-Conf)), ICC-02/11–01/15, (2 May 2018) (Gbagbo Defence Team, Trial Chamber I) para 86. 53  ibid para 91. 54  Telford Taylor, The Anatomy of the Nuremberg Trials (Knopf 1992) 144. 55  François Roux, La Parole est à la Défense (Indigène éditions 2016) 51 (hereafter Roux, La Parole). 56  Rome Statute (n 10) art 34. 57 ICC, Rules of Procedure and Evidence (2013) Rule 20, accessed 26 December 2018.

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82   Dov Jacobs Regulations of the Registry that the creation of a defence office was provided for.58 The existence of this defence office does not however change the fact that the defence is not given the position that it would deserve in the institution. Financially, because the vast majority of accused are declared indigent, defence teams rely on legal aid in order to function. As a result, defence teams are dependent on another section of the Registry, the counsel support section, in order to obtain the funds necessary to adequately defend their client. It should be noted that the legal aid budget represents a tiny portion of the overall budget of the ICC. As noted in a report on legal aid commissioned by the ICC Registry, legal aid represents only 3.25 per cent of the total budget of the court and 10 per cent of the budget allocated to the prosecution in 2017.59 Of course, the prosecution is faced with different responsibilities that might justify that it benefits from a more considerable budget, such as the duty to conduct preliminary examinations, gather evidence, and prove its case beyond reasonable doubt. However, these different ‘functions’ of the prosecution and the defence do not justify such a disparity. Putting aside the fact that a sizeable portion of the prosecution budget is not devoted to the core functions of the Office of the Prosecutor (OTP), such as investigations, in practice, the defence should also be in a position to investigate and constitute teams capable of supporting the workload of a trial. The balancing away of the defence is a daily, practical reality at the ICC. The new ICC building is meant to be a monument to justice for the first permanent institution dealing with the prosecution of international crimes. Its five towers stand tall in the dunes north of The Hague, city of international justice. Within these six towers, two of them are devoted to the Prosecutor. The defence was awarded a single floor on the top of the last tower. As a consequence, office space is limited. It should be noted that initially, when the ICC moved to the new building, one proposal put forward by the Registry was that there would not be any closed offices for the defence teams but only shared open spaces, which raised obvious questions of confidentiality. Another proposal was that defence teams would only benefit from an office when in trial, showing an ignorance of the work done by the defence throughout a case, irrespective of whether hearings are ongoing or not. This daily balancing away can be seen in myriads of other little ways, from the exclusion of ICC mailing lists, to the impossibility for the defence to directly book a conference room to meet groups of visitors. In such a context, it is not difficult to conclude that the defence is constantly being balanced out institutionally. There is no easy solution to this problem. The model of the Special Tribunal for Lebanon, where the defence office is recognized as an organ of the court, is often put forward as a possible model for other tribunals.60 While it is possibly an improvement on what took place at other international tribunals, it is doubtful 58  On this, see Xavier-Jean Keita, Caroline Baugas, and Geraldine Danhoui, ‘Les droits de la défense et l’égalité des armes, sous le prisme d’une institution nouvelle, le Bureau du conseil public pour la défense’ (2008) 14 African YB of Intl L 145. 59  Richard Rodgers, ‘Assessment of the ICC’s Legal Aid System’ (Global Diligence LLP, 5 January 2017) para 12 accessed 26 December 2018. 60 Roux, La Parole (n 55) 52.

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Neither Here nor There   83 whether it is a transposable model: the STL was set up to essentially deal with one case, with no defendants (the trial is conducted in absentia), that makes it materially possible to centralize defence activities in one office. This will never be the case at the ICC, which deals with numerous cases in very different situations whose political context calls for a diversity of approaches. Ultimately, what is required is an institutional change of perception, that is difficult to imagine given the systemic balancing out of the defence to which I now turn.

V.  The Systemic Balancing Away of the Defence61 International criminal tribunals operate in a very particular context that creates a systemic tension with any genuine consideration for the accused, and, as a consequence, for the rights of the defence. The first and most obvious feature of ICL is the nature of the crimes considered. International criminal courts have jurisdiction over those crimes that are considered to be the most egregious crimes, ‘unimaginable atrocities that deeply shock the conscience of humanity’.62 These are crimes that therefore carry a unique moral weight which serves to inversely diminish any consideration for the rights of the accused. Specifically, the crimes within the jurisdiction of international courts are usually mass crimes that, as a result, have countless victims who are seen as the beneficiaries of these trials. This constitutes a shift in the rationale of criminal law that is traditionally, at least in the western tradition, the response of society in reaction to an offence against its societal values, rather than a direct remedy to victims for their personal suffering. By putting victims at the heart of ICL, the accused does not face the objective features of the State through the prosecutor, but instead faces the subjective features of the alleged victims. It is much harder to focus on the rights of accused person in that context because those rights can now be argued not as protecting the individual against the arbitrariness of the exercise of sovereign power by the prosecuting institution, but as a means of shielding the accused from those who directly claim to have suffered from his acts. In this symbolic confrontation, the accused is likely to be denied that right. The second feature to be considered is the particular nature of international criminality. International crimes share, to a lesser or greater extent depending on the crime considered, a requirement of some form of collective action, which is usually embodied in the legal requirement of identifying the contextual element of the crime.63 War crimes 61  This part relies on part of the author’s already published chapter Jacobs, ‘Tale of Four Illusions’ (n 44). 62  Rome Statute (n 10) preamble. 63  On this, see e.g., Mark A. Drumbl, ‘Collective Violence and Individual Punishment: The Criminality of Mass Atrocity’ (2005) 99 Northwestern University L Rev 539; M. Osiel, ‘The Banality of Good: Aligning Incentives Against Mass Atrocity’ (2005) 105 Columbia L Rev 1751, 1753; M. Osiel, Making Sense of Mass Atrocity (CUP 2009).

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84   Dov Jacobs require an armed conflict; crimes against humanity require a widespread or systematic attack against any civilian population and—at the ICC at least—a State or organizational policy; genocide requires—at least at the ICC—a manifest pattern of similar conduct. The consequence of this is that, in international trials, considerable attention is devoted to establishing this context, with consideration of the actual role of the accused taking a back seat. It suffices to open any judgment of the ad hoc tribunals to note that one can go through hundreds of pages in which the factual findings are made and legal conclusions are drawn on the commission of crimes without the accused being mentioned. The structure of most international judgments is an oddity in itself. Indeed, findings on the commission of crimes are usually made with no knowledge of the direct individual perpetrators of the underlying acts, and therefore with no discussion of the intent of those direct perpetrators. While this is common practice in ICL, it is technically impossible to determine the existence of a crime, in a legal sense, without considering both the actus reus and the mens rea elements of that crime, that makes a large proportion of legal findings on the commission of crimes in international judgments inappropriate from a criminal law perspective. This leads to the third feature of ICL: the nature of the criminal responsibility. Even when the accused is considered, it is most of the time not for his direct commission of the crimes, in the traditional sense of the term ‘commission’. International defendants are usually high up in the military ranks or are individuals who held political office. They are not those who actually pulled the trigger—metaphorically speaking. Establishing their responsibility for crimes committed by others often requires adopting modes of liability that connect them to the crimes in some remote way, such as ordering, planning, or being a superior in the case of command responsibility. In addition to that, the collective nature of international criminality, as noted previously, means that ICL relies heavily on collective modes of liability, such as joint criminal enterprise at the ad hoc tribunals or indirect co-perpetration at the ICC. These modes of liability further dilute the conduct of the accused in light of the actions of the group, which is claimed to have perpetrated the crimes, that in turn makes it easier to ignore the actual conduct and/or mens rea of the accused. Under these collective modes of liability, a co-perpetrator need not actually share the particular intent to commit certain crimes and does not actually need to have knowledge of certain crimes, as long as he shares the more general intent to contribute to a common plan or the joint criminal enterprise during which one of his other co-perpetrators committed the crimes charged. As a consequence, because the conduct of the accused is diluted away in legal discussions about collective conduct, the balancing away of his rights will appear less problematic. A fourth, less legal, but no less important feature of ICL is the political context of international crimes. The label of ‘criminality’ has the effect of putting a veil over the often very political dimension of the alleged criminal conduct; for example in Sierra Leone, the fact that the corruption of the government and its rampant human rights abuses had a role in the start of the civil war. The language of ICL can have the effect to depoliticize what is almost always political violence, irrespective of its legality or illegality under international law. As a result, international tribunals also claim that they are

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Neither Here nor There   85 not making political determinations by only looking at the individual criminal responsibility of the accused. That is not true. International tribunals not only cannot avoid making findings that have political implications but have to take into account political considerations in their legal findings. First of all, a stated goal of international justice and the trials conducted in the inter­ nation­al criminal courts is to provide an accurate historical record of a given conflict.64 International criminal tribunals will necessarily delve into the political history and context of the crimes; you cannot accurately write about history without describing the extant political situation. Second of all, and more importantly, a great number of inter­nation­al judgments, especially regarding those accused who were higher up in the hierarchy at the time of the crimes alleged, are naturally required to consider—directly or indirectly—political motives as part of the claimed collective criminal intent. Joint criminal enterprise requires proof of a common purpose, just as indirect co-perpetration requires a common plan, both of which will often be alleged to be political. The consequence of this feature is once again a dilution of the actual conduct of the accused not only in the context of collective criminal conduct, but also as to collective political conduct. Moreover, once this mixed legal/political message leaves the courtroom, there is a natural filter by which only the political dimension reaches the general public, therefore reinforcing the idea that the rights of accused during the legal proceedings are not that important. Leaving the courtroom leads us to the fifth feature, that of the media attention on the situations that international criminal courts deal with; attention that usually occurs well in advance of the court processes themselves. This necessarily taints any perception of the accused, especially when they are high ranking military commanders or well-known political figures. Most international defendants have been thoroughly ‘pre-judged’ by the media and the general public, based on the role that people understand them to have had in the State apparatus. As a result, the expectation is that there will be a conviction, and the higher the position, the higher that expectation. Who would ever expect Muammar Ghadaffi, Saddam Hussein, or tomorrow, Assad or Bashir to be acquitted? For such political figures, international trials are expected to be purely symbolic; a formal validation of what everybody thinks they already know about what they did. There is little room for concern about the rights of the accused in such a context even though no fair, valid legal system can proceed without continued concern for such individual rights. With this consideration we come back full circle to our initial point: the shift from the rights of the accused to the symbolic objectives of the international community and more particularly the interests of victims. And with this shift comes another shift, that of the general understanding of justice. The ‘justice’ of the international criminal trial is not generally measured by the fairness of the proceedings, but by the favourable outcome from the victims’ perspective. Proof of that can be found in any reaction to convictions 64  Whether international tribunals should in fact have such an ambition in the first place is a different debate.

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86   Dov Jacobs and acquittals. A conviction is often labelled by the advocates of international justice (such as NGOs and policy makers) as a ‘victory for Justice’,65 whereas you will rarely hear such claim in the event of an acquittal (other than by counsel for the acquitted person), despite the fact that an acquittal after a fair process should normally also be considered as a ‘victory for Justice’. What is ultimately worrying is that this view seems to be shared not only outside the Tribunals but also within these institutions. Indeed, while one can possibly understand the psychological and emotional desire of alleged victims to get a conviction, there is something disturbing about the fact that those who work at these institutions and prod­uce the decisions also think in this way, because it demonstrates a bias against the accused that puts the question of the fairness of the process at a systemic level. Examples abound of this. A few years ago, an ICTY staff survey was leaked to the press and it transpired that the morale was low because there had been some acquittals in the preceding months.66 Recently, the ICTY website and Twitter account made every effort not to say that Šešelj had been acquitted, while a conviction obviously always makes the front page.67 And probably the most striking example is the poster that everyone could see in the lobby of the ICTY, which shows two sets of handcuffs, one in a rudimentary fabric—used by some perpetrators against some victims of the conflict—and one in stainless steel—to be used on ICTY defendants—with the following text: ‘Bringing perpetrators to justice and justice to victims’. This illustrates perfectly the fact that justice for the defendant means putting him in handcuffs, while the ‘real’ justice is for the victims. Moreover, beyond grand statements about the rights of the defence, this poster vehiculates a simple ‘eye for an eye’ law of talion message. Needless to say that there is little room for the rights of the defence in such a framework of analysis. Ultimately, for all the above reasons, the accused at an international criminal tribunal can only ever be peripheral to his trial, rather than be at the centre of it as should be the case, because the stakes go far beyond his mere individual criminal responsibility or lack thereof.68 The accused is but one element of a broader political, historical, and societal discussion, and this in turn diminishes his or her role in the courtroom itself and explains why, as a consequence, his individual rights are less of a concern, even though they are codified in numerous international instruments.

65  See e..g, in relation to the Taylor Judgment, Dov Jacobs, ‘Taylor Judgment: “A Victory for Justice”?’ (Spreading the Jam, 26 September 2013) accessed 26 December 2018. 66  Dov Jacobs, ‘Low Morale at the ICTY’ (Spreading the Jam, 23 August 2013) accessed 26 December 2018. 67  Dov Jacobs, ‘Is the ICTY Ashamed by its own Seselj Judgment ?’ (Spreading the Jam, 31 March 2016) accessed 26 December 2018. 68  Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin Classic 2006).

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Neither Here nor There   87

VI.  Concluding Thoughts: Working on the Periphery as Defence Counsel This chapter draws a bleak picture of the position of the defence in international crim­inal law. Despite lip service to the rights of the defence, the accused and his counsel are being constantly balanced out of the equation in all aspects of the daily life of inter­nation­al criminal justice because, to put it simply, the stakes are too high to give too much room to the defence. This situation raises a number of questions. First of all, what does it mean for defence counsel themselves and their role within the international criminal law framework? Informal interviews69 with defence counsel unsurprisingly reveal that the vast majority are extremely critical of the ICL system and its incapacity to adequately safeguard the rights of the defence, for the reasons exposed previously. However, when challenged on their continued participation in such a system, not one of them agreed that it would be a good idea to give up, because, as one of them put it, it is always better to be inside the system fighting for its improvement than outside observing its failures. Another put it in the simplest terms possible: ‘It’s my job’. These practitioners also pointed out the real successes obtained by defence counsel over the years, in their respective cases, even leading up to notable acquittals. One defence counsel pointed out that the absence of the defence in the courtroom, whatever its weak position, will always change the dynamics of the trial. Yet, prosecution cases are often evaluated by observers of international justice in a static way, as if the defence didn’t exist. Viewed from the outside, and seen through the lens of the judgment, the prosecution case is usually found, in hindsight, to have been always good or always bad. What is missing in such an evaluation is the role that the defence might have had in changing the perception of the prosecution case. Possibly weak prosecution cases would never be revealed as such without a strong defence to test it. Second of all, one can even wonder, reflecting back, to what extent the starting premise of this chapter—that respect of the rights of the defence is not only an objective of the system, but a means to give it legitimacy—is sustainable. Indeed, while the respect for the rights of the defence is a purported concern for those working in the field of inter­nation­al criminal law, it might be inaccurate to claim that this respect contributes to the legitimacy of the system as a whole. Legitimacy is a relative concept that is ­conditioned by the expectations of observers and their priorities. In this light, it is doubtful that, apart from a handful of practitioners (most likely defence lawyers, but not only) and academics, many followers of international justice matters actually factor in the rights of the defence in their evaluation of the legitimacy of international criminal law. This finding, even if correct, should not lead to ignoring the difficulties that the system has with respecting the rights of the accused (after all, if nobody cares about them, why bother?). Indeed, even if the respect for the rights of the defence is not taken 69  Conducted by the author in the course of 2017.

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88   Dov Jacobs as an (moral/pol­it­ical) objective per se, what discussion and debates surrounding them reveal about the failings of the system remains true, be it in relation to poorly led investigations, in­ad­equate­ly proven charges, inaptly argued motions, or unsatisfactorily reasoned decisions. Given this role for the defence, it seems inevitable that it will structurally always be at the periphery of the system, on the border between inclusion and exclusion, depending on the circumstances of the case, the line of defence adopted, and the state of mind of the other participants and parties. It cannot be entirely within the system, as some would hope for by calling for the recognition of the defence as a pillar of international justice on the same level as the prosecution, lest it be burdened by the constraints that affect the system as a whole; nor can it be entirely outside the system, lest it have no impact on it whatsoever. Finally, herein lies probably the most concrete reason why the defence will always have a marginal place in international criminal justice, beyond the philosophical and systemic reasons given previously: an effective defence is a mirror that is put up to inter­nation­al justice’s face and that shows it what is not working. Like the Queen in the Brothers Grimm Snow White fairy tale, international justice does not want to hear that she is not the fairest of them all. However, looking away from, ignoring, or breaking the mirror will not change that fact. As long as international justice is content with basking in the illusion of its own fairness, it will never achieve any of its claimed ambitions, let alone respect the rights of the defence.

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chapter 4

Th e Cr e ation of a n A d Hoc Elite And the Value of International Criminal Law Expertise on a Global Market Mikkel Jarle Christensen

I. Introduction Scholarship on international criminal justice has been dominated by legal scholars studying the law and jurisprudence of this new field and political scientists studying how diplomacy shaped the international criminal courts and their impact. Less atten­ tion has been given to investigating the sociology of international criminal law and how the professional constitution of this field affects its development. This chapter investigates the creation and evolution of a new professional elite within and around the inter­ nation­al criminal courts.1 By professional elite the chapter refers here to the agents able to move into senior positions, and individually exert material and symbolic influence on the development of international criminal law (ICL). Building on a wider international­ ization of criminal law and political investments in international institution building, this group of professionals moved from other career paths into the nascent field of ICL. Here they were joined by later elite agents and became the drivers of new institutional and legal developments and one of the primary embodiments of the institutional and symbolic authority generated in this field. The influence of this heterogeneous group that consisted of legal professionals, NGO advocates, diplomats, and academics often built on the ability to mobilize several different forms of expertise and invest it towards the promise to end impunity. 1  This project has received funding from the Independent Research Fund Denmark, the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation pro­ gramme, and from the Danish National Research Foundation Grant no. DNRF105.

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90   Mikkel Jarle Christensen The analysis will proceed in four parts. First, the theoretical background, method, and empirical material of the article will be presented and related to previous ­scholarship. Secondly, the advent of the new elite will be analyzed with a focus on what kinds of expertise were prevalent for the top professionals who moved into ICL in the 1990s. To understand the development of this elite, the chapter draws mostly on examples from its earliest practitioners in the International Criminal Tribunal for the former Yugoslavia (ICTY), the foundational institution of modern ICL, using also data on later members of this group. Thirdly, the article will analyze the construction of a field of stakeholders around ICL, and how this field depended also on the crafting of a specific symbolism that was crucial for signaling and potentially building legal authority. This symbolism also formed the basis for the consolidation of an ICL elite with positions also outside of the international criminal courts. Fourthly, the analysis will situate the elite of ICL in a larger international market for legal services in which different per­ spectives and ideals compete to set the agenda. In this context, the relative success of the identified elite when attempting to transfer their expertise into other professional spaces holds central clues to the perceived value of ICL on a wider global market of governance ideas and technologies.

II.  Theory, Method, and Data Most professional fields are characterized by a specific division of labour between different groups who work in this space, some of which have been able to attain a more priv­il­eged positons than others. These professional agents are able to exercise power by directing the work and thinking of others. Like in most other fields, material and symbolic power within the field of ICL is not distributed evenly. The accumulation of authority and the ability to exert power sets the elite apart from other individuals over whom they exert influence. In the context of this chapter, the elite is characterized by being able to manage the labour of others within specific institutions and to shape the development of law within and beyond the international criminal courts. As such the identified elite is an integral part of the daily workings of the field, and its members hold positions that allow them to impact the practical and normative direction of its development. This sets them apart from other professionals who may have worked for decades within this field, but whose indi­ vidual decision-making does not directly impact the legal strategies or interpretations deployed in this space or the organization of its work. Due to their particular position in the field, understanding the composition and strat­egies of the elite is crucial because this group has access to esoteric power resources that shape the development of ICL. In order to analyze the emergence and impact of a specific ICL elite, the chapter builds on previous studies that have investigated how elite status is connected to the control over specific resources, and how individuals exert material and symbolic forms of authority and power in a larger social space. The definition of an elite deployed by this chapter has three dimensions: firstly, the elite is characterized by having access specific

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The Creation of an Ad Hoc Elite   91 positions in ICL from where they are able to direct work, manage resources and affect policy-building. Secondly, from these positions of institutional power , individual elite agents build profiles that enable them to exert symbolic influence in the wider space of ICL. Symbolic influence is here understood as the ability to shape perceptions and ideas about this form of law. Thirdly, the accumulation of institutional and symbolic power allows elite agents to become the prime bearers of the norms of ICL, norms that they themselves helped shape. Embodying specific ideals and practices, the elite promotes ICL solutions on a broader market of legal services and competing governance ­tech­nolo­gies. The three elements used here to map and analyze the ICL elite build on the thoughts of three sociologists: C. Wright Mills, Max Weber, and Pierre Bourdieu. Analyzing the role of what he labelled the ‘power elite’ in the context of the US, C. Wright Mills’ seminal book defined three separate elite constellations characterized by access to distinct forms of institutional power: an economic elite tied to top tier, giant corporations in the US; a political elite engaged in the policy development at the federal level and in the executive establishment; and a military elite in control of the most expensive branch of government.2 Published a decade after the Second World War, Mills identified the enlargement of bureaucracies and centralization of decision-making powers as a core feature that cut across these three sectors. The power elite was charac­ terized by access to and control over institutional assets that allowed them to influence the lives of large numbers of citizens through their individual decision-making powers. Mills’ definition of an elite will be used to populate the analysis of the present chapter by identifying professionals in concrete positions in and around the international criminal courts that have access to institutional resources: judges, prosecutors, and registrars. While they were also in internal competition within specific institutions, these pro­ fessionals had access to institutional resources and were able to direct the work of inter­nation­al criminal courts. Outside of these institutions, leaders of international NGOs and professors at universities also yielded power over institutional resources, although the assets they commanded were very different from those of the courts. The form of power exercised by elites is not only inscribed in the institutional posi­ tions from which they operate. Max Weber famously identified three types of legitimate rule: traditional, legal-rational, and charismatic authority.3 In Weber’s understanding, traditional authority is tied to forms of hereditary rule as evidenced in family, clan, tribal, and royal forms of rule. The legal-rational form of authority in Weber’s system is related to what he identified as the advent of bureaucracies based on the formalistic implementation of pre-defined rules.4 As such, this form of authority is exercised by individuals but based on uniform and transparent principles. The third form of authority, charismatic authority, is tied to the perceived extraordinary characteristics of a single individual able to influence others through symbolic as well as material forms of 2  Charles Wright Mills, The Power Elite (OUP 1956). 3  Max Weber, ‘The Three Types of Legitimate Rule’ (1958) 4(1) Berkeley Publications in Society and Institutions 1–11. 4  Max Weber, ‘Bureaucracy’ in Hans Heinrich Gerth and Charles Wright Mills (eds), From Max Weber: Essays in Sociology (Routledge 2009) 196–244 (hereafter Gerth and Mills (eds), From Max Weber).

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92   Mikkel Jarle Christensen ­governance.5 Crucially, these forms of authority are not mutually exclusive, but coexist even in modern configurations of rule. In ICL specifically, elite authority is often charac­ terized by a mix of access to specific institutional resources, as identified by Mills, and access to more symbolic resources as conceptualized by Weber’s idea of charismatic authority. To exert charismatic authority, elite agents often relied on professional strat­egies related to publishing or using media to further their cause. The co-existence of different forms of authority also makes clear that authority itself is relational and not fixed once and for all. It is constantly renegotiated, for instance as the formal preroga­ tives of law meet politics and advocacy work. Of course, complicating the picture, authority and power are not the same thing.6 Where power implies the ability to bring change, legal-rational authority is formally ascribed to institutions through, for instance, the political compromise manifested in their statutes. In this context, charis­ matic authority points to the ability to exert symbolic influence over the perception of legal and professional practices, but does not guarantee the impact of such influence. Symbolic authority only becomes powerful when it is replicated and recognized by, and gives normative direction to, a wider constituency. To understand how the exercise of material and symbolic power is possible, and how it affects the world, elite status must be situated in a larger social setting. The field ana­lysis of Pierre Bourdieu aims to analyze how particular social spaces are organized through the relational distribution of material and symbolic power. This theoretical perspective will tie together the analysis of ICL by situating the accumulation of elite power in a larger space. For Bourdieu the concept of a field is central to investigate how different forms of power and status are distributed. A field is defined here as a social space whose boundaries are defined by the gravitational pull of its power relations.7 To move into elite positions in specific fields, individual actors must be able successfully to invest expertise—or capital—that is in demand in this social space. In most countries, for instance, a law degree is crucial as a form of currency that gives access to specific positions. But law degrees not only vary in value according to which school signs the degree: investing in degrees successfully depends on the accumulation of other forms of capital and on the shape of the market in which other forms of professional expertise is used to compete for positions. Understanding the composition of an elite within a certain field requires an analysis of the forms of capital active in this social space, the distribution of this capital, and how it is related to the division of power in the field and beyond. Crucially for this approach to studying elite status, capital is tied to the specific fields in which it was accumulated, but can also be invested beyond it, although at a certain risk of devaluation. This risk means that elite status in one field, for instance in ICL, does not necessarily allow agents to become successful in other markets unless it corresponds to a form of capital that is in demand here. 5  Max Weber, ‘The Sociology of Charismatic Authority’, in Gerth and Mills (eds), From Max Weber (n 3) 245–52. 6  Karen J. Alter, Laurence R. Helfer and Mikael R. Madsen, ‘How Context Shapes the Authority of International Courts’ 79 Law and Contemporary Problems 1 ibid. 7  Pierre Bourdieu and Loic Wacquant, An Invitation to Reflexive Sociology (University of Chicago Press 1992) 97.

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The Creation of an Ad Hoc Elite   93 With a focus on international politics, political scientists have previously analyzed the nexus between legal and political power,8 but they have done so in a way that does not conceptualize elite influence as part of the object of inquiry. Legal scholars have analyzed and systematized the legal developments of the field of ICL.9 In doing so, it can be argued that the most prominent of these scholars are in fact part of the elite of the field of ICL. They exercise symbolic power by criticizing the case law of the courts in which they frequently also work as expert consultants,10 and hold material power tied to university chairs and, for instance, PhD committees, and in recruitment of younger scholars. Zooming in on how elites operate, the work of John Hagan and Ron Levi has studied the profiles active in creating the International Criminal Tribunal for the former Yugoslavia (ICTY) and the role of high ranking professionals in setting the course of the Court as it came under external pressure.11 Critical legal scholars have also contributed important insights on the role of lawyers, legal scholars, and legal expertise in a larger space of international governance. In this context, David Kennedy has recently contrib­ uted an original perspective on how expertise shapes global governance.12 While Kennedy is interested in mapping expertise—including a legal expertise running amok in the modern law of warfare—the present chapter focuses on how specific groups of people were able to move into positions in which they became elite representatives of certain forms of expertise. Forming a new elite, ICL experts compete with the forms of expertise analyzed by Kennedy in ascribing the direction of global governance based on legal tech­nolo­gies. In addition to these perspectives, recent studies have analyzed how senior professionals have responded to the shrinking of the field of ICL as the temporary courts have entered into their completion strategies13—national markets often proving ­skeptical to ICL expertise.14

8  Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (CUP 2008) (hereafter Peskin, International Justice in Rwanda and the Balkans); Adam Branch, Displacing Human Rights: War and Intervention in Northern Uganda (OUP 2011). 9  Alexander Zahar and Göran Sluiter, International Criminal Law: A Critical Introduction (OUP 2008); Carsten Stahn, Law and Practice of the International Criminal Court (OUP 2015); William A. Schabas, An Introduction to the International Criminal Court (CUP 2011) (hereafter Schabas, Introduction to the ICC); M. Cherif Bassiouni, Introduction to International Criminal Law (2nd rev edn, Martinus Nijhoff 2013). 10  Mikkel Jarle Christensen, ‘Preaching, Practicing and Publishing International Criminal Justice: Academic Expertise and the Development of an International Field of Law’ (2017) 17(2) Intl Crim L Rev 239. 11  John Hagan and Ron Levi, ‘Crimes of War and the Force of Law’ (2005) 83(4) Social Forces 1499–534; John Hagan, Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal (University of Chicago Press 2003) (hereafter Hagan, Justice in the Balkans); John Hagan, Ron Levi, and Gabrielle Ferrales, ‘Swaying the Hand of Justice: The Internal and External Dynamics of Regime Change at the International Criminal Tribunal for the Former Yugoslavia’ (2006) 31(3) Law & Social Inquiry 585–616. 12  David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton UP 2016) (hereafter Kennedy, A World of Struggle). 13  Mikkel Jarle Christensen, ‘From symbolic surge to closing courts: The transformation of inter­nation­al criminal justice and its professional practices’ 43 International Journal of Law, Crime and Justice 609. 14  Mikkel Jarle Christensen, ‘International Prosecution and National Bureaucracy: The Contest to Define International Practices within the Danish Prosecution Service’ (Winter 2018) 43(1) Law & Social Inquiry 152.

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94   Mikkel Jarle Christensen To study the characteristics of the ICL elite, the chapter builds on almost 120 interviews of which a third were with professionals employed in leadership positions in the international criminal courts, academia, or NGOs. The interviewees were selected from all professional levels to secure multiple perspectives on ICL, and representative of its different stakeholders. In other words, the interviews did not focus merely on elites but on mapping the field of ICL as such. This sample of elite and non-elite interviews was later supplemented with 255 publicly available CVs of high-ranking profiles such as judges, prosecutors, and registrars to provide a fuller picture of elite status and tra­jec­tor­ies. The data has been collected according to the definitions of an elite built around Mills, Weber, and Bourdieu. In other words, some of the entries were selected because they occupy a certain position in the field—such as judges, prosecutors, and registrars— positions that would correspond to Mills’ view of an elite as a group of agents with access to certain institutional resources. Besides these agents, the materials also include the profiles of the most used defence counsel in the field, whose career is more flexible than those employed in the courts as they can build ICL portfolios alongside other types of case work, prominent NGO practitioners, and a small elite sample of the large number of scholars who work on ICL. These individuals were selected by looking for individuals who exerted symbolic influence (having published prominent textbooks, been cited in the case law of the courts, or being an expert frequently quoted in media). As such they become part of a wider group of stakeholders who compete to define international crim­inal justice, its subject-matter, and professional boundaries.15 The selection of these different profiles aimed to provide a comprehensive picture of the agents active in the field. The approach was inclusive and sensitive to the perceptions of interviewees and includes members of the elite pointed out in these qualitative and semi-structured conversations that focused on individual career trajectories and perceptions of ICL.

III.  The Advent of the ICL Elite The creation of what has been called a field of international criminal justice16 was the result of a protracted and incremental development begun with the creation of the ICTY with Security Council Resolution 827 in 1993. Many aspects of this development are well-known and have been documented by legal scholars,17 political scientists,18 and 15  Mikkel Jarle Christensen, ‘Crafting and Promoting International Crimes: A Controversy between Legal Professionals of Core Crimes and Anti-Corruption’ (2017) 30(2) Leiden J of Intl L 501. 16  Ron Levi and John Hagan, ‘Penser Les « Crimes De Guerre »’, (2008) 173 Actes de la Recherche en Sciences Sociales 6–27; Peter Dixon and Chris Tenove, ‘International Criminal Justice as a Transnational Field: Rules, Authority and Victims’ (2013) 7(3) Intl J of Transitional Justice 393–441. 17  Luc Reydams, Jan Wouters, and Cedric Ryngaert, International Prosecutors (OUP 2012); Schabas, Introduction to the ICC (n 7); Frédéric Mégret, ‘International Criminal Justice as a Juridical Field’, (2016) 13 Champ pénal/Penal field accessed 14 October 2019. 18  Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton UP 2000).

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The Creation of an Ad Hoc Elite   95 sociologists.19 From a sociological perspective, four main career routes led into this new market: the first was academia that played a role particularly for judges, many of whom continued to cultivate this expertise while on the bench. The second was tied to capital accumulated from legal practice—either related to international law or national crim­inal justice systems, in the latter case often tied to complex forms of crime such as corruption, money laundering, or financial crime. The third was experience from NGO advocacy focused on human rights. And, finally, the fourth, was a career path tied to diplomacy either nationally or through international organizations such as the United Nations (UN). Expertise or capital from these four sectors were central for establishing the field of ICL and its elite. The convergence of expertise from these sectors was visible in the first senior staff employed in the ICTY. The 11 judges of the Yugoslav tribunal formally appointed 17 November 1993 were selected from a list of 22 candidates. Most candidates were at the late stages of their careers. The average age of the appointed judges was close to 63 years old. US judge, Gabrielle Kirk McDonald, born in 1942, was the youngest and the Chinese judge, Li Haopei born in 1906, was the oldest. The election process, being tied to the General Assembly of the UN, was highly political and matters of geographical represen­ tation as well as geopolitical power interests came into play. This was perhaps most evident in the Russian discontent that the Federation did not, as the only permanent member of the Security Council, see their candidate elected to the ICTY. The Russian candidate, Valentin G. Kisilev, was mainly oriented towards practical domestic affairs and had a few publications in his native language, but had become part of the country’s association of international law. One could argue that he did not hold much professional capital closely attuned to the crafting of ICL, but the same could be said of the French candidate, Germain Le Foyer de Costil, although the latter did serve as an assistant lecturer in criminal law in Paris.20 de Costil later resigned due to health reasons and Claude Jorda took his place on the bench. While the games of high politics were a factor in selecting the first bench of international criminal law—and remain a crucial in the ICC via the Assembly of State Parties (ASP)—at a deeper sociological level the career tra­jec­tor­ies of the new judges displayed clear patterns as they built on combinations of the four entry points defined above, even when only accumulating weak capital in some of them. Collectively, the new group of judges drew especially on academic, practical, and diplomatic experience built over the span of relatively long careers at the national level as well as in international forums. Of course, due to the political nature of the selection process, this capital had to be somewhat aligned with diplomatic preferences to be activated. 19 Hagan, Justice in the Balkans (n 9). 20  Secretary General of the UN, ‘Note by the Secretary General: Curricula vitae of candidates nom­in­ated by States Members of the United Nations and non-member States maintaining permanent observer missions at United Nations Headquarters’ in Election of Judges of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UNGA, 47th Sess, Agenda item156, UN Doc A/47/1006, (1 September 1993).

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96   Mikkel Jarle Christensen Embodied in the individual judges, the composition of capital took different forms. Most judges had accumulated extensive expertise from at least two of the abovemen­ tioned sectors, some from all four. A prominent example of a judge who had accrued capital from all of the domains was Egyptian judge, Georges Abi-Saab. Saab had studied abroad at some of the best schools in the world, something that was not atypical for the applicants, held an LLM and a JD from Harvard, and was a Doctor of political science from Cambridge and Geneva. Holding also a diploma from The Hague Academy of International Law, Abi-Saab had published extensively on international law, the International Court of Justice, and United Nations operations. Working in government service, he represented Egypt in the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable to Armed Conflicts between 1974 and 1977, directly relevant for the ICTY. In terms of practical legal experience, he had also worked as counsel before the International Court of Justice on frontier disputes between Egypt and Israel. In two other border disputes—between Burkina Faso and Mali as well as Libya and Chad—he served as ad hoc judge. Abi-Saab and later president of the ICTY, Antonio Cassese, exhibited perhaps the broadest capital. Other judges such as Kisilev and de Costil had most of their experience from legal practice with some connections to the academy. Another example was Pakistani judge, Rustam S. Sidhwa, who had experience as associate professor alongside his seat on the country’s Supreme Court. The embryonic character of ICL and its institutions was evident in the early recruitment strategies of the courts. First of all, and not surprisingly, few judges had direct experi­ ence with this form of law. Second of all, the staffing of the rest of the Tribunal was driven by professional networks as well as by more formal procedures. In this context the recruitment of the second ICTY prosecutor, Richard Goldstone, is emblematic of how a new elite was crafted at the intersection of different forms of criminal law and human rights. This process has been analyzed by John Hagan,21 and illustrates the role of networks in the creation of what was in effect the first ICL elite. Recruited though the active intervention of tribunal president Antonio Cassese, while Goldstone lacked direct prosecutorial expertise, he had extensive experience as a judge tied to the transi­ tional justice initiatives that followed the end of apartheid in South Africa. This profile points to the contemporary coexistence of the emergent ICL and truth and rec­on­cili­ ation processes of which South Africa was the most celebrated example. Goldstone’s expertise from the newly reformed South Africa gave him a combination of legal and symbolic capital tied to the international reception of the most prominent national ­recon­cili­ation process based on norms of human rights after the end of the Cold War. Staffing the ICTY and later the ICTR, Goldstone himself also used his contacts to locate potential candidates in Western countries,22 some of whom had close links to the South African Development Community (SADC).

21 Hagan, Justice in the Balkans (n 9) 60–61. 22  Interview with former ICTY judge 25 February 2016.

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The Creation of an Ad Hoc Elite   97 The staffing of senior positions was a highly political process and was partly driven by the deployments to these courts by national governments. Here the larger political structures were crucial for those who moved into the ICL elite. Outside of strictly legal positions in the Office of the Prosecutor (OTP) and on the bench, the Tribunal’s registry was initially staffed with Dutch professionals to facilitate cooperation with the host state. The first Registrar, Theo van Bowen, had extensive experience from the UN system and had worked with human rights. He had close ties to academia and would later draft the ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ in cooperation with Cherif Bassiouni, who had led the commission that prepared evidence for the ICTY, adopted with UNGA Resolution 60/147 in 2006. Collectively, the first elite entrants into ICL had accumulated capital from diplomacy, national judiciaries, the practice of international law, academia and, to a lesser extent, NGO advocacy related to human rights and humanitarian law as ­evidenced for instance in the profile of Morten Bergsmo, who was active in the commis­ sion of inquiry that preceded the ICTY and had previously worked for the Norwegian Human Rights Institute. In the new space of ICL, structured by international diplomacy, elite agents invested their capital towards the formation of a new form of law that they themselves became the main exponents of. Some of them would remain in this field henceforth enjoying the status of ‘founding fathers’, while others divested their expertise from ICL and entered into other positions.

IV.  The Creation of a Group and its Symbolic Capital As the field of international criminal law expanded, the early elite of repeat players became part of a professional market to which individual agents devoted large parts of their career. As a result of the structure of the field, this participation, the value of which is determined by the perception of professionals in this emergent space and broader market, became closely tied to the symbolism of this form of law. This symbolism has not gone unnoticed in ICL scholarship23 and was crucial for the very functionality of a form of criminal law that was unmoored from national fields and lacked the police ­powers developed over centuries in domestic territories. In contrast to other studies of this symbolism, it will be analyzed here as embodied in and crafted by the very profes­ sionals of this field. Furthering the mission of ICL to ‘end impunity’, as the preamble of the Rome Statute famously sets out as a broad mission statement, was intertwined with 23  Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’, European Journal of International Law, 13/3 (April 1, 2002 2002), 561–95, Martti Koskenniemi, ‘Between Impunity and Show Trials’, Max Planck Yearbook of United Nations Law Online, 6/1 (2002), 1–32.

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98   Mikkel Jarle Christensen the creation of a new form of professional identity as international criminal lawyers.24 In total, some 4,000 professionals were employed in international criminal courts in 2008/2009,25 positions that were also characterized by a significant turnover. Of these positions, 144 were occupied by elite agents in the definition of this chapter. In other words, the elite composed 3.6 per cent of the total population in the courts at this specific point in time. Over time, the empirical data compiled for the chapter has located 231 agents who held elite positions in the international criminal courts at one point in time. 146 individuals served as judges (to which can be added 41 ad litem judges), 27 as prosecutors, deputy prosecutors, and head of prosecutions, and 17 regis­ trars and deputy registrars. As is evidenced in the data on elite trajectories, many of these agents moved between different positions in ICL. In total, 31 judges served on the bench of different inter­ nation­al criminal courts or moved from ad litem to permanent. In addition, six registrars and six prosecutors served in other courts or capacities elsewhere in the field of ICL. These moves are indicative of how professionals invested their capital in the courts often for twin reasons related to the perceived mission of their work and simply being able here to draw most professional interests from their investment. For the elite of ICL the creation of a wider market had two significant effects. Firstly, this specific market was constructed around the objectification of a particular discourse tied to the non-partisan nature of the law and its importance as a governance tool, and secondly this orthodoxy had to be solidified in and promoted beyond the field of ICL to secure the mission and professional investments of this space. However, statistics of leadership positions do not demonstrate whether this group was indeed able to affect the world outside of the small context in which they were placed. It also says little about the differences between the specific subgroups in the elite sample, the uneven distribution of capital among them, and how this impacted their practices. While the statistics on individuals in specific positions provide a good point of entry, they must be supplemented by a more dynamic conception of the elite. This is also where Weber reenters the picture, because while analyzing leadership positions did allow a certain overview of actors who were formally able to exert institutional authority, the authority of their position was not a given outside the doors of these institutions. On the contrary, despite the fact that the ad hoc tribunals for the former Yugoslavia and Rwanda were formally created by the UN Security Council, a provenance that the­or­et­ic­ al­ly secured compliance with its rulings, the early history of these institutions points to very different dynamics in which UN members states were rarely inclined to help the new courts.26 This context framed the activities of early court elites who set out to 24  Claus Kreß, ‘Towards a Truly Universal Invisible College of International Criminal Lawyers’ (2014) Torkel Opsahl Academic EPublisher Occasional Paper Series 1–36. 25 Mikkel Jarle Christensen, ‘From Symbolic Surge to Closing Courts: The Transformation of International Criminal Justice and Its Professional Practices’ (2015) 34(4) Intl J of Law, Crime and Justice 609–25. 26  Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (Cambridge University Press 2008).

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The Creation of an Ad Hoc Elite   99 construct external and charismatic authority based on the mission of the courts: to bring cases against suspects of grave abuses of human rights and, although often stated less carefully, bringing reconciliation and peace to war-torn regions. To do this the Tribunals engaged in a range of practices that were not strictly legal but aimed at influencing the social space in which they were situated. Since the effort to secure cooperation was in­tim­ate­ly linked to the mobilization of different forms of capital, in particular legal, diplomatic, and academic, investigating these practices also yields important insights into the construction of a new elite in the field of ICL and how it gained authority beyond The Hague. As demonstrated in John Hagan’s book on the early years of the ICTY, prosecutors were deeply involved in different forms of diplomacy aimed at securing cooperation.27 Perhaps the most striking early example of how alternative methods were used to push the work of the Tribunals onto the international agenda and solicit state cooperation was an incident involving Louise Arbour, the third prosecutor of the ICTY recom­ mended by Goldstone as he returned to South Africa in September 1996 to take a seat at the Constitutional Court. In early 1998 Arbour spent three days in Skopje negotiating for, and failing to get, access to Kosovo. Due to massive media interest, this apparent failure was turned into a victory as Arbour was pictured in a flak jacket on the border as the long arm of the law attempting to bring those responsible for crimes in the region to just­ice.28 This minor incident quickly made world news. Advised among others by Richard Holbrooke to remain in Skopje, Arbour succeeded in putting pressure on Milošević. Although Arbour’s account of the events demonstrate that there was little strategy behind her protest, pitted against physical and political obstruction, the new form of justice being built in the Hague and in Arusha could also be used as a public relations tool. This victory demonstrated the potential of ICL symbolism. In Weber’s terms, when the formal-rational authority came up short, investments into charismatic authority succeeded. Charismatic authority and the effects of this authority essentially depends on external recognition. Judges or prosecutors who invest in charismatic influence thus endeavour beyond the mere fulfillment of predesigned bureaucratic functions. They use symbolic investments to secure resources or cooperation when formal practices cannot. The use of symbolism to solicit cooperation and support soon became pivotal for the courts, now almost expected to exert a form of symbolic authority that mirrored the broader mission of ICL. This development was closely related to the expansion of the field of ICL in the 1990s and 2000s and created a veritable professional market around this form of law that offered opportunities within the courts, as well as in academia and human rights NGOs, many of which had also turned their attention towards prosecution of offences.29 From their respective positions, NGO advocates and academics yielded institutional power (less pronounced than in the case of the courts), but also co-produced 27 Hagan, Justice in the Balkans (n 9). 28  ibid 115–18. 29  Kjersti Lohne, Advocates of Humanity: Human Rights NGOs and International Criminal Justice (OUP forthcoming).

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100   Mikkel Jarle Christensen the symbolism of this field by holding the courts to their perceived promises, as expressed in scholarly writings and NGO reports. As was the case with the first judges, the new segments of the ICL elite were able to mobilize different forms of previously accumulated capital towards the development of the field, but increasingly had to be able to exhibit specialized knowledge of the practices and ideas generated in this space. On the basis of this expertise, they were important for promoting the mission of ICL beyond the courts. For NGO advocates, access to resources in leading activist organizations such as Human Rights Watch (HRW) and Amnesty International (AI) was central for the building of individual and symbolic influence. In this part of the field, a small number of agents have built positions that enable them to be seen as the spokespersons for inter­nation­al criminal justice. One is William Pace, convener of the Coalition for the ICC that coordinates the work of more than 2,500 NGOs with interest in the ICC. Another trajectory more closely linked to front line advocacy is that of Reed Broady whose status builds on his activities at the cusp of human rights work. Having also legal expertise from working as Assistant Attorney General in New York, Broady’s reputation built on his report on US support to the Nicaraguan Contras that was used in the ICJ’s judgment on the same issue.30 In 1998 Broady moved to Human Rights Watch (HRW) where he spearheaded the work of this NGO with ending impunity and bringing even state leaders to justice. In this capacity, he played a pivotal role in the Hissène Habré trial at the Extraordinary African Chambers in Senegal. The elite of NGO professionals forms the first line of symbolic defence of and in the field of ICL as they affirm the broader symbolism of the space by authorizing it through their career trajectory dedicated to studying or promoting it, frequently in effect doing both, and thereby endow it with authority and power beyond the courts. This promotional activity was partly built on the critique of concrete practices of the international criminal courts assessed with reference to the symbolism of the field in part developed by the courts themselves. As such, the constant battle over the symbolism of ICL was part of the col­lect­ive labour of constructing this very symbolism. The elite of ICL also counts academics. For these agents, the ability to mix different forms of expertise was also crucial. The most prominent academics often played double roles as practitioners and served as experts in the courts. This was the case for Cherif Bassiouni and Antonio Cassese as well as for a range of other prolific names including William Schabas, Kevin Jon Heller, Göran Sluiter, and Carsten Stahn who had all worked closely with the courts and hold professorships where they exert significant influence over ICL by commenting on its legal developments and training new gen­er­ ations of scholars and practitioners. Much like NGO elites, the positions of these ­scholars outside of the courts allow them to be critical of the practices of these institu­ tions, holding them against legal standards systematized in their own writings. Besides NGO and academic elites, a small number of repeat players on the side of the defence 30  Reed Broady, Contra Terror in Nicaragua: Report of a Fact-Finding Mission: September 1984–January 1985 (South End Press 1999).

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The Creation of an Ad Hoc Elite   101 have also become part of the ICL elite, but maintain a more flexible role as they typically have positions in law firms that allow them to take on other cases as well. Collectively these elites wield institutional and symbolic power, and compete to define ICL as a legal practice. The symbolic power exercised by particular individuals in the field of ICL only takes on value due to its relational character. For symbolic capital to be a passable form of professional currency, it must be recognized and attributed value by a collectivity of agents who are playing the same game. As a result, and related to the differentiation of the ICL market, the elite is not a unified group and develops the symbolism of the field through distinct and competing practices. Despite the fact that the symbolism of ICL was essentially a field effect created through collective investment into this field, the individual accumulation of professional and symbolic capital in this field was unevenly divided and was invested towards conflicting definitions of what the law meant. Mobilizing institutional as well as symbolic capital, the elite of ICL competes to define the direction of this form of law while at the same time policing the boundaries of who is considered the main professional bearers of the overall mission. As different forms of capital are activated through specific struggles through which ICL ideals are simultaneously maintained and transformed, these forms of capital become the subject of market fluctuations in the sense that different forms of capital increase or decrease in value.31 These conjunctures of capital are related both to the overall structure of the field of ICL and can follow from developments, such as closure of institutions or the preferences of state funders, that have impact on the career trajectories of elite agents. Related to the contest over institutional power and the development of capital, symbolic capital can also potentially be devalued if it is no longer considered salient among stakeholders.

V.  The Value of the ICL Elite on a Broader Market In a larger space of global elites, some of which were placed in neighbouring fields of human rights,32 international law33 or economic governance,34 the competitiveness of ICL expertise is tested. This is most clearly evidenced when ICL elites try to capitalize on their experience by translating it into status in other fields of law. For many of them, the relatively small social space of ICL does not offer opportunities that can support a full 31 Mikkel Jarle Christensen, ‘The Judiciary of International Criminal Law: Double Decline and Practical Turn’ 17 Journal of International Criminal Justice 537. 32  Mikael Rask Madsen and Gert Verschraegen (eds), Making Human Rights Intelligible: Towards a Sociology of Human Rights (Oñati International Series in Law and Society) (Hart Publishing 2013). 33  Yves Dezalay and Bryant G. Garth, ‘Hegemonic Battles, Professional Rivalries, and the International Division of Labor in the Market for the Import and Export of State-Governing Expertise’ (2011) 5(3) Intl Political Sociology 276–93. 34 Kennedy, A World of Struggle (n 10).

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102   Mikkel Jarle Christensen career and, as a consequence, many look to leave this field and invest in other career paths. The gravitational pull that structures which agents are able to move into new fields—as well as the power relations between fields—formats the opportunities of agents looking to translate expertise into new positions beyond the social space where this expertise was built. Having accumulated substantial capital before entering the international criminal courts, some professionals circulated back into the national jurisdiction after working in these institutions, while others ended their career in these institutions, a third group continuing to other international endeavours, usually diplomatic or legal work related to ICL. Few were able to invest their capital in legal fields not related to ICL, except those that left this field after relatively brief investments of career capital. Former prosecutors, Louise Arbour and Richard Goldstone, both returned to their native countries to serve as judges—maintaining at the same time their investment in ICL—Goldstone through publications, lectures, heading the UN fact-finding mission to Gaza in 2008–2009, and serving on the advisory board of the Coalition for the International Criminal Court (CICC). Arbour became the UN High Commissioner for Human Rights (2004–2008) after serving on the Canadian Supreme Court, and then president of the NGO International Crisis Group 2009–2014, diversifying investments into some of the professional domains that were also active in building the field of ICL. Both of these relatively successful conversions of ICL expertise were characterized by short tenures in the international criminal courts that allowed their expertise to remain relevant for the national context. On the side of the judges, some professionals appointed to the bench at a late stage in their careers used the courts as the pinnacle of a long professional life. An emblematic example of how the work as a tribunal judge was used towards the end of a formidable career was Canadian judge, Jules Dechênes. Born in 1923 and admitted to the bar in Quebec in 1946, he became Queen’s Counsel in 1961 and was appointed by Pierre Trudeau as Chief Justice in the Superior Court of Quebec in 1973 where he served for a decade. From 1984–87, he worked in the United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities and, in 1985, he served as the head of the Commission of Inquiry on War Criminals in Canada, the so-called Dechênes Commission. Dechênes was one of the few to work practically with war crimes before entering the field of ICL. Bringing in this legal and diplomatic expertise, he was a judge at the ICTY from 1993–1997. He died in 2000. While many were appointed late in their careers, some judges moved to other international courts. One example is Moroccan diplomat and judge, Mohamed Bennouda, born 1943, who was a law professor and held degrees from the Sorbonne and The Hague Academy of International Law. He was also member of the International Law Commission 1986–1998. He served as legalcounsel to Morocco’s UN delegation from 1974–85, Deputy Permanent Representative of Morocco to the United Nations (1985–89), and Director General of the Arab World Institute (Institut du monde arabe, Paris) (1991–98). He served as judge in the ICTY from 1998–2001, before being elected to the bench of the International Court of Justice in 2006 where his current term expires in 2024. The profiles of judges in later courts had

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The Creation of an Ad Hoc Elite   103 some of the same components as in the ICTY, but with certain variations. Institutions like the Extraordinary Chambers in the Courts of Cambodia (ECCC) mainly attracted late stage professionals with a national profile or aspiring elites hoping to use the chambers as a stepping-stone to other positions.35 In the ICC, judges build on a long career that combined practical experience with human rights work, while academic expertise was less prominent than in the early elite of the ICTY. Despite these successful conversions, when leaving the courts, the capital built in ICL risks being devalued when reinvested on a wider market. This is clear also beyond the ad hoc courts, and the ICTY in particular, and was especially the case when agents had spent a long period in ICL. In addition to this temporal dimension, the reputation of elite agents seems also to have been important when transitioning from ICL to other walks of life. The careers of Carla del Ponte and Luis Moreno Ocampo after ending their term as prosecutors were marked by internal as well as external attacks on their authority. After ending her term, Del Ponte headed an EU investigation into organ trafficking in Kosovo, and then served as Swiss Ambassador to Argentina before becoming a member of the Independent International Commission of Inquiry on the Syrian Arab Republic that accumulates evidence on human rights abuses in Syria. Ocampo became an associate in the law firm Getnick & Getnick, and worked as chairman on the World Bank Expert Panel on the Padma Bridge project in Bangladesh and with tobacco giant Phillip Morris on anti-corruption questions. Ocampo has tried in different ways to remain a player in ICL, so far not landing a new position that allows him to retain influence in the field directly. The variable value of ICL expertise was related to the overall structure of this field that built on a low impact of its legal-rational authority and, closely linked, attempts to build instead charismatic authority as a form of elite power. The concrete criticism that characterized the tenures and legacies of del Ponte and Ocampo can also be read through this prism. They were criticized mainly for their managerial skills, but also for their exercise of charismatic authority through unsuccessful attempts to use the symbolic promise of ICL to secure its power by going for big cases easy to sell to the public. Their investment in symbolism, to a certain extent dictated by the structures of ICL, combined with the criticism of poor legal-rational authority helped devalue their professional capital. In other words, building charismatic authority without a solid foundation was a risky strategy that opened for the depreciation of professional capital. Working in a field in which positions have been decreasing with the closing of the Tribunals for the former Yugoslavia and Rwanda as well as of other institutions, the elite status of the studied groups remained uncertain and had to be constantly renegotiated. Most successful conversions of capital took place after short tenures in ICL, and often maintained a connection with the field. Long-term professional investments of capital run the risk of being pigeon-holed in the field of ICL as their accumulation of expertise became too narrowly affiliated with the law and practice of this field. As such, the status 35 Mikkel Jarle Christensen and Astrid Kjeldgaard-Pedersen, ‘Competing Perceptions of Hybrid Justice: International v. National in the Extraordinary Chambers of the Court of Cambodia’ 18 Journal of International Criminal Justice 127.

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104   Mikkel Jarle Christensen of the ICL elite remained ad hoc and tied to the development and continued existence of a very particular form of law and justice this very elite was part of building. The failure to convert specialized ICL expertise and symbolic authority into new positions in other fields of law testifies to the relative structural isolation of this field of law from other forms of legal governance. Following its own internal rules and professional logics, the creation of new forms of legal-rational and charismatic authority does not seem to be of significant value in other markets organized around other forms of legal governance. Beyond this market focused narrowly on servicing the fight against international core crimes of genocide, crimes against humanity, and war crimes, ICL expertise was not in high demand.

VI. Conclusion As part of a larger conjuncture that saw the internationalization of different forms of law, the creation of the field of ICL gave rise to a new elite that played a crucial role in defining and promoting the legal technologies and symbolism inscribed in the broad mission of this field. As this field grew and was differentiated into a professional market with different and competing positions, its elite was characterized by an aggregation of different forms of capital that could be mobilized toward the development of ICL in close relation with the building of individual careers. The forms of expertise invested into ICL were visible in the very first elites that entered into the field and were linked to careers in diplomacy, human rights, international and criminal law, and academia. The elite of ICL built on capital from these spaces and in many cases on nurturing close connections between them as they built careers in the emergent field created around the inter­nation­al criminal courts, but also kept doors open toward alternative trajectories. Within the field of ICL, the status of elite was tied to specific positions that allowed for the deployment of institutional resources, but also to a form of symbolism that was crucial for the attempt to create real legal power and authority. This symbolism was a col­lect­ive, albeit competitive, construction. Building its status on different forms of capital and occupying different positions in the field of ICL, the elite was not a unified group but competed to set the agenda for the space they invested their professional capital in. In this differentiated field, NGOs and academics were often critical towards the practices of the courts that many of them had worked in at one stage of their career and retained close connections to. These elite battles are central for understanding the development of this field of law as they mirror the deeply rooted social and professional divisions on which this field was built. The value of expertise built in ICL has remained low on a global marketplace where this form of law competes with other approaches to governance. This points to a central feature of the legal, political, and social structure of the field of ICL. Characterized by a low degree of legal-rational authority, but a strong symbolism built in tandem with the internationalization of criminal law practices, ICL remains relatively disjointed from

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The Creation of an Ad Hoc Elite   105 other forms of international law and governance as well as from national criminal just­ice systems. This is visible concretely in the career trajectories of the ad hoc elite of ICL and their attempt at translating capital into new professional positions. Related to the limited legal, political and social influence of the field of ICL, the value of capital accumulated in this field does not have a fixed conversion rate but is highly variable and prone to depreciation when invested elsewhere. Even for its elite, the market of ICL is isolated and potentially volatile.

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chapter 5

Teachi ngs of Pu blicists a n d th e R ei n v en tion of th e Sou rces Doctr i n e i n I n ter nationa l Cr imi na l L aw Neha Jain*

I. Introduction Does the international criminal law regime subscribe to the same doctrine of sources as classical public international law? On first blush, it is difficult to contemplate any answer that would not be in the affirmative. International criminal law, after all, is one amongst the many (fragmented) branches of international law and can be expected to recognize the same legal sources as authoritative.1 This response is, however, complicated to a considerable degree by at least three factors: the hybrid identity of inter­nation­al *  Associate Professor of Law, University of Minnesota Law School; Fellow, Stellenbosch Institute for Advanced Study (STIAS), Wallenberg Research Centre at Stellenbosch University, Stellenbosch 7600, South Africa. I am indebted to the Editors of the Handbook for detailed and helpful feedback on this chapter. 1  This assumption underlies even the most sophisticated work on the sources of international crim­inal law. See e.g., Antonio Cassese, International Criminal Law (OUP 2003) 20, 26 (hereafter Cassese, ICL); Dapo Akande, ‘Sources of International Criminal Law’ in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (OUP 2009) 41; Margaret McAullife deGuzman, ‘Article 21: Applicable Law’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (2nd edn, Beck, Hart, and Nomos 2008) 701, 702.

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Teachings of Publicists and the Reinvention of the Sources   107 criminal law that sits betwixt criminal law, public international law, and human rights law;2 the disputed nature of the sources doctrine in public international law; and the disproportionate role played by international criminal courts in the development of the sources doctrine, especially when compared to other international tribunals.3 This chapter analyzes one of the most controversial areas in the jurisprudence of the International Criminal Court (ICC)—modes of liability—to conduct a broader investigation into whether the classical doctrine of sources in public international law represents faithfully the manner in which sources of law are being conceived and applied in the realm of international criminal law. It does so by focusing on a source of law that has attracted almost no comment in the renewed debate on sources of public international law and has similarly evaded the attention of most international criminal law scholars: the teachings of publicists.4 While the literature on sources in international criminal law has examined discrete sources such as customary international law5 and the decisions of municipal courts,6 this enquiry has mostly been conducted in a piecemeal fashion, rather than through the lens of debates on the sources doctrine in classical public inter­nation­al law.7 The normative and descriptive validity of the sources of public inter­nation­al law and their applicability to international criminal law has been assumed, a phenomenon that is all the more unexpected given that the Rome Statute of the International Criminal Court (ICC) explicitly recognizes a different hierarchy of sources.8 2 Cassese, ICL (n 1) 18–19; Leena Grover, ‘A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court’ (2010) 21 European J of Intl L 543, 550–51. 3  Scholars have increasingly turned their attention to the centrality of judicial creativity in the development of international criminal law. See e.g., Shane Darcy and Joseph Powderly (eds), Judicial Creativity at the International Criminal Tribunals (OUP 2010); Antonio Cassese, ‘Black Letter Lawyering v. Constructive Interpretation’ (2004) 2 J of Intl Crim Justice 265; William Schabas, ‘Interpreting the Statutes of the ad hoc Tribunals’ in Lal Chand Vohrah and others (eds), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (Kluwer Law International 2003) 847. 4  For a recent exception to this trend in general public international law, see Lianne J M Boer, ‘ “The Greater Part of Jurisconsults”: On Consensus Claims and Their Footnotes in Legal Scholarship’ (2016) 29(4) Leiden J of Intl L 1021 (hereafter Boer, ‘Consensus Claims’). 5 Mia Swart, ‘Judicial Lawmaking at the ad hoc Tribunals: The Creative Use of the Sources of International Law and “Adventurous Interpretation” ’ (2010) 70 Zeitschrift für Aüslandisches öffentliches Recht und Völkerrecht 459, 463–48; Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (OUP 2005) 13–15; André Nollkaepmer, ‘The Legitimacy of International Law in the Case Law of the International Tribunal for the Former Yugoslavia’ in Thomas A J A Vandamme and Jan Herman Reestman (eds), Ambiguity in the Rule of Law: The Interface Between National and International Legal Systems (Europa Law 2001) 13, 17. 6  André Nollkaepmer, ‘Decisions of National Courts as Sources of International Law: An Analysis of the Practice of the ICTY’ in Gideon Boas and William Schabas (eds), International Criminal Law Developments in the Case Law of the ICTY (Brill 2003) 277. 7  For uncommon attempts to relate the sources of international criminal law to the hybrid identity of the regime, see Leena Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court (CUP 2014) (on treaty interpretation in the context of international criminal law); Neha Jain, ‘Judicial Lawmaking and General Principles of Law in International Criminal Law’ (2016) 57 Harvard Intl L J 111 (on the general principles of law in international criminal law). 8  Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, UN Doc A/CONF.183/9 (in force 1 July 2002), art 21 (hereafter Rome Statute). This viewpoint could partially be explained by the

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108   Neha Jain This chapter interrogates the ICC’s use of the teachings of publicists in fashioning novel forms of individual criminal responsibility to argue that the Court, similar to its predecessors such as the International Criminal Tribunals for Rwanda and the Former Yugoslavia, has been quietly engaged in reinventing the classical doctrine of sources and repurposing it to suit the international criminal law regime. The rehabilitation of this largely unutilized source of law has not, however, been carried out in a particularly conscious or informed fashion, at least none that is explicit in the jurisprudence of the ICC. The absence of any doctrinal discussion or even framework is not surprising in light of the Court’s general reluctance to make grand theoretical pronouncements, especially those that raise fundamental issues concerning the identity and goals of international criminal justice. The chapter unpacks the Court’s innovative approach to the teachings of publicists in the context of forms of criminal responsibility and signals the normative and policy issues that this raises, not only for the international criminal law regime, but also for the sources doctrine in public international law. Part II gives a brief overview of the opinion of publicists as a source of classical public international law. Part III focuses on the jurisprudence of the ICC on modes of liability to highlight the manner in which teachings of publicists have assumed an influence all out of proportion to their traditional role in the development of public international law. Part IV analyses the implications of this use of scholarship and what it reveals about the nature of the international criminal law regime, drawing on domestic law comparisons with the status and position of scholars as sources of legal authority. The chapter concludes by gesturing towards the contribution that a renewed focus on sources of law as applied by international criminal tribunals could make to contemporary debates on the sources doctrine in public international law.

II.  Publicists in Public International Law While the Statute of the International Court of Justice (ICJ) technically only specifies the sources of law that are to be applied by the ICJ, Article 38(1) of the statute dealing with sources is widely regarded as a template for the sources of public international law more generally.9 Under the statute, the ICJ is entitled to apply ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means

fact that the Rome Statute is a self-contained treaty regime that has its own hierarchy of sources. However, the same could be said for Art 38 of the ICJ Statute, that has been a vital reference point for any discussion of the sources doctrine in public international law more broadly. 9  David Kennedy, ‘The Sources of International Law’ (1987) 2 American U Intl L Rev 1, 2; Robert Jennings, ‘What is International Law and How Do We Tell It When We See It?’ (1981) 37 Schweizerisches Jahrbuch für Internationales Recht 59, 60–61.

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Teachings of Publicists and the Reinvention of the Sources   109 for the determination of rules of law’.10 This formulation obscures the various tensions underlying heated debates on the appropriate sources of international law during the drafting stage of the precursor to Article 38(1) in the Statute of the Permanent Court of International Justice (PCIJ).

A.  Publicists and Gap-Filling in International Law Baron Descamps, the President of the Advisory Committee of Jurists in charge of crafting the statute, initially proposed a list that specified, in order of preference, the following sources: (1) conventional international law; (2) international custom; (3) ‘the rules of international law as recognised by the legal conscience of civilised nations’; and (4) ‘international jurisprudence as a means for the application and development of law’.11 Doctrine, or the ‘concurrent teachings of juriconsults of authority’, was introduced as a means of determining the third source, which in turn was an attempt to avoid a situation of non-liquet.12 In a subsequent draft, doctrine appeared in a different guise proposed by Mr Root in collaboration with Lord Phillimore: the Court was now to consider ‘the authority of judicial decisions and the opinions of writers as a means for the application and development of law’.13 This proposal precipitated a lively discussion,14 with some members of the Advisory Committee such as M. Ricci-Busatti expressing dismay and amazement at the idea that doctrine by itself could constitute a source of law.15 To this charge, Lord Phillimore replied that it might be possible for a legal system to accept a rule based solely upon the doctrine of authors, though he later qualified his statement by considering agreement among authors as evidence of custom.16 Professor de Lapradelle, who was unhappy at the prospect of doctrine constituting a source of law, would have narrowed its application to the ‘coinciding doctrines of qualified authors in the countries concerned in the case’.17 Baron Descamps sought to allay these fears by clarifying his position that while doctrine (and jurisprudence) could not create law, they were helpful tools for the 10  Statute of the International Court of Justice, 26 June 1945, 3 UST 1179, 59 US Stat 1031, art 38(1)(d). 11  Permanent Court of Justice, Advisory Committee of Jurists, Procés-Verbaux of the Proceedings Committee, June 16th—July 24th 1920 (Van Langenhuysen 1920) Annex No 3 at 306 accessed 2 July 2018 (hereafter Procès-Verbaux). 12  Procés-Verbaux (n 11) 318–19, 323. See also Alain Pellet, ‘Article 38’ in Andreas Zimmermann and others (eds), The Statute of the International Court of Justice: A Commentary (OUP 2006) 677, 686 (here­ after Pellet, ‘Article 38’); Michael Peil, ‘Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the International Court of Justice’ (2012) 1 Cambridge J of Intl and Comparative L 136, 138–39 (hereafter Peil, ‘Scholarly Writings’). 13  Procés-Verbaux (n 11) 344. 14 For a detailed account, see Pellet, ‘Article 38’ (n 12) 685–88; Maarten Bos, ‘The Recognized Manifestations of International Law: A New Theory of “Sources” ’ (1997) 20 German YB of Intl L 9, 61–63 (hereafter Bos, ‘New Theory’); Peil, ‘Scholarly Writings’ (n 12) 138–40. 15  Procés-Verbaux (n 11) 332–34. 16  Procés-Verbaux (n 12) 333, 336. 17  Procés-Verbaux (n 11) 336.

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110   Neha Jain judge to determine its existence.18 A tentative compromise was reached in the final wording of the draft that stated that ‘[t]he Court shall take into consideration judicial decisions and the teachings of the most highly qualified publicists of the various nations as a sub­sid­iary means for the determination of rules of law’.19 The ambiguous formulation of the final text, however, fails to resolve the disagreements voiced during the debates on the precise status of the opinion of publicists as a source of international law.20

B.  Publicists as a Subsidiary Source of Law Subsequent commentary on the teachings of publicists as a legal source has been far from enthusiastic, bespeaking an intriguing modesty of the scholarly community as to their own reliability and authoritativeness. Thus, scholars have largely attempted to highlight the ‘subsidiary’ nature of the teachings of publicists in various ways.21 A distinction has been made between the other three sources—treaties, custom, and general principles—that are considered ‘formal’ or sources of law proper, and judicial decisions and publicists as ‘documentary’ sources that merely evidence the existence of the formal sources.22 Alternatively, emphasis has been put on the nature of the institution that gives rise to the law, such that ‘law-creating’ agencies such as states enact formal sources like treaties, whereas ‘law-determining’ ones like courts and scholars simply elucidate where the law may be found and its content.23 Skepticism has also been expressed at the equal status accorded in Article 38(1)(d) to judicial decisions and publicists.24 For instance, according to Fitzmaurice, ‘[a] decision is a fact: an opinion, however cogent, remains an opinion’.25 While a judicial decision may not be materially any better or more persuasive than a scholarly opinion, it has a qualitatively different impact on subsequent legal proceedings that is plain in the manner in 18  Procés-Verbaux (n 11) 332, 334. 19  Procés-Verbaux (n 11) 584. 20  Bos, ‘New Theory’ (n 14) 62–63; Peil, ‘Scholarly Writings’ (n 11) 140. cf Pellet, ‘Article 38’ (n 11) 783 (concluding that notwithstanding the confusing positions adopted by various members, the final draft signalled their intention to retain doctrine as a means to elucidate the rules to be applied by the court). 21  For a detailed discussion and references, see Aldo Zammit Borda, ‘A Formal Approach to Article 38(1)(d) of the ICJ Statute from the Perspective of the International Criminal Court and Tribunals’ (2013) 24 European J of Intl L 649, 653–56 (hereafter Borda, ‘Formal Approach to Article 38(1)(d)’). 22  Sir Gerald G Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’ in Jan H W Verzijl (ed), Symbolae Verzijl: Presentées au Professor J.H.W. Verzijl à l’occasion de son LXX-ième anniversaire (Nijhoff 1958) 153, 153–54 (hereafter Fitzmaurice, ‘Problems Regarding the Formal Sources’); Shabtai Rosenne, The Law and Practice of the International Court, 1920–2005, vol III (Nijhoff 2006) 1551. 23  Georg Schwarzenberger, ‘The Province of the Doctrine of International Law’ (1956) 9 Current Legal Problems 235, 236–37 (hereafter Schwarzenberger, ‘The Province of the Doctrine’); Georg Schwarzenberger, ‘The Inductive Approach to International Law’ (1947) 60 Harvard L Rev 539, 550–51 (hereafter Schwarzenberger, ‘Inductive Approach’). 24  Fitzmaurice, ‘Problems Regarding the Formal Sources’ (n 22) 172–74; Borda, ‘Formal Approach to Article 38(1)(d)’ (n 21) 650, 660. cf Torsten Gihl, ‘The Legal Character and Sources of International Law’ (1957) 1 Scandinavian Studies in Law 51, 74 (referring with approval to their equal status under the ICJ statute and arguing that their influence should depend equally on the quality of their arguments). 25  Fitzmaurice, ‘Problems Regarding the Formal Sources’ (n 22) at 172.

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Teachings of Publicists and the Reinvention of the Sources   111 which it influences the attitudes of the parties in framing their arguments and in the extent to which judges feel obligated to follow or distinguish judicial precedents.26 This attempt to privilege judicial decisions vis-à-vis scholarship as sources of law has, however, been criticized for its unconscious perpetuation of a common law bias that ignores the status of scholarly and judicial pronouncements in the civilian tradition whereby both are considered equally accurate (or not) representations of the law.27 Judgments of major international courts such as the PCIJ and ICJ rarely cite doctrine in support of their decisions, leading to speculation on whether doctrine truly has such little value in the eyes of the courts, or if it is read and considered, and merely not cited.28 Indeed, individual opinions often contain citations to scholarship to craft a persuasive argument.29 This has not, however, prevented critics from referencing the low value of the work of international law scholars found in harsh pronouncements by courts such as the English Admiralty Court: ‘A pedantic man in his closet dictates the law of nations; everybody quotes, and nobody minds him . . . and who shall decide, when doctors disagree?’30 The reluctance to refer to scholarship has been attributed to the highly political nature of the international legal system and to the small and incestuous community of international law scholars, where personal and political rivalries may undermine the strength of the judge’s reasoning if it demonstrated the clear influence of the opinion of one or the other scholar.31 International law scholarship has also been derided as nationally biased, superficial, and prone to making assertions about principles and rules that are unsupported by actual evidence, such as the inattentiveness to state practice in establishing the existence of custom.32

26  ibid 172–74. Robert Jennings, ‘The Judiciary, International and National, and the Development of International Law’ (1996) 45 Intl and Comparative L Q 1, 9 (hereafter Jennings, ‘The Judiciary’). 27 Jörg Kammerhofer, ‘Lawmaking by Scholars’ in Catherine Brölmann and Yannick Radi (eds), Research Handbook on the Theory and Practice of International Lawmaking (Elgar 2016) 305, 308. cf Pellet, ‘Article 38’ (n 12) 748 (arguing that although doctrine and jurisprudence perform the same function in the abstract, the ICJ’s use of the two sources has been quite different). See also P K Menon, ‘An Enquiry into the Sources of Modern International Law’ (1986) 64 Revue de Droit International, de Sciences Diplomatiques et Politiques 181, 199 (on the differential treatment of the two sources by the PCIJ and the ICJ). 28  Robert Jennings, ‘Reflections on the Subsidiary Means for the Determination of Rules of Law’ (2003) 1 Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz 319, 327–28 (hereafter Jennings, ‘Reflections’); Pellet, ‘Article 38’ (n 12) 791–92. See also Peil, ‘Scholarly Writings’ (n 12) 144–47 (Peil examines the possible reasons for the reluctance to cite scholars). 29  Manfred Lachs, The Teacher in International Law: Teachings and Teaching (Nijhoff 1982) 172–73 (hereafter Lachs, Teacher); Jennings, ‘Reflections’ (n 28) 328. 30  The Renard (1778) Hay-Marriott 222–224; 165 English L Rep 51, 52 (Adm). 31  Pellet, ‘Article 38’ (n 12) 792; Hilary Charlesworth, ‘Law-Making and Sources’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2012) 187, 197 (hereafter Charlesworth, ‘Law-Making and Sources’); Jennings, ‘The Judiciary’ (n 26) 9. 32  Clive Parry, The Sources and Evidences of International Law (Oceana 1965) 104–05, 108 (hereafter Parry, Sources and Evidences); Schwarzenberger, ‘Inductive Approach’ (n 23) 560–62. See also Nicholas Greenwood Onuf, ‘Law-Making in the Global Community (1974)’ in Nicholas Greenwood Onuf (ed), International Legal Theory: Essays and Engagements 1966–2006 (Routledge-Cavendish 2008) 63, 71.

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112   Neha Jain Some scholars have nonetheless alluded to the practice and social reality of the normative authority exercised by international law scholars.33 At least in the beginning of the consolidation and development of international law, the lack of significant judicial practice meant that scholars were often in the vanguard of systematizing and clarifying the content of international legal rules.34 Scholars claim that ‘the books and the opinions of the nineteenth century seem often to resemble catalogues of the praises of famous men. “Hear also what Hall sayeth. Hear the comfortable words of Oppenheim” is an incantation which persists even into this century’.35 Even today, familiarity with the teachings of eminent international law scholars is considered the hallmark of a persuasive legal argument.36 Scholars have also had a deep impact on specialized areas of the law such as the law of diplomatic protection and the law of state succession.37 Additionally, scholars who participate in various governmental and inter-governmental capacities can have an outsize influence on the doctrine.38 This is especially true of academics who go on to illustrious careers as judges of international adjudicative bodies (where their judicial opinions may be an extension of their scholarly work and commitments) and those who are appointed to specialized bodies such as the Sixth Committee of the United Nations or the International Law Commission (ILC).39 Not only do academics constitute a significant proportion of the members of the ILC, but the ILC also frequently relies on well-known publicists in exercising their mandate to codify and progressively develop the rules of international law.40 In this process, the ILC has produced draft articles and prepared the ground for codification conventions that have had a significant influence on states as well as international institutions.41 There is, however, an intriguing discrepancy in the rate at which international tribunals, including the ICJ, cite the work and deliberations of the ILC when compared to 33 Lachs, Teacher (n 29) 176–77; Gleider I Hernández, ‘The Responsibility of the International Legal Academic: Situating the Grammarian within the “Invisible College” ’ in Nollkaemper and others (eds), International Law as a Profession (CUP 2017) 1, 20–1 (hereafter Hernández, ‘Responsibility’); Bos, ‘New Theory’ (n 14) 63. 34  Lassa Oppenheim, ‘The Science of International Law: Its Task and Method’ (1908) 2 American J of Intl L 313, 315, 345 (hereafter Oppenheim, ‘Science of International Law’) ; Gillian Triggs, ‘The Public International Lawyer and the Practice of International Law’ (2005) 24 Australian YB of Intl L 201, 202 (hereafter Triggs, ‘Public International Lawyer’). 35 Parry, Sources and Evidences (n 32) 103. 36  Hernández, ‘Responsibility’ (n 33) 20. 37 Parry, Sources and Evidences (n 32) 107. cf Triggs, ‘Public International Lawyer’ (n 35) 202–03 (citing examples where tribunals have rejected ‘progressive lawyering’ by scholars where their assertions have not been backed by evidence). 38 Lachs, Teacher (n 29) 167; Triggs, ‘Public International Lawyer’ (n 34) 205–06. 39  See Robert Jennings, ‘International Lawyers and the Progressive Development of International Law’ in Jerzy Macarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzystof Skubiszewski (Kluwer Law International 1996) 417; Triggs, ‘Public International Lawyer’ (n 34) 205–06. 40 Lachs, Teacher (n 29) 194–95. 41 See Fernando Lusa Bordin, ‘Reflections of Customary International Law: The Authority of Codification Conventions and ILC Draft Articles in International Law’ (2014) 63 Intl and Comparative L Q 535, 536, 538–39 (hereafter Bordin, ‘Reflections’).

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Teachings of Publicists and the Reinvention of the Sources   113 other ‘academic’ sources.42 The ILC, in this sense, occupies a fairly unique institutional position, not only because of its status as an organ of the UN and the quality of the texts it produces, but also because the ‘provisions it formulates reflect a synthesis of scholarly opinion tempered by the general trends emerging from the opinions voiced by States’.43 In more recent years, the ICJ has relied directly on ILC draft articles in cases such as the Gabčíkovo-Nagymaros judgment.44 In this case, the ICJ declared that Article 33 of the ILC’s Draft Articles on State Responsibility on the state of necessity as precluding the wrongfulness of an act was reflective of customary international law. It went on to rely on the criteria provided in Article 33 for evaluating the existence of the necessity justification to determine Hungary’s international responsibility.45 The ICJ has since directly referenced the Draft Articles on State Responsibility in numerous judgments, as have other international adjudicative bodies.46

III.  Publicists at the International Criminal Court A.  Application and Hierarchy of Sources in ICL Given the extensive discussion on sources of law during the drafting of the Statutes of the PCIJ and ICJ and the subsequent wide ranging academic commentary on sources of public international law, it is surprising to see the scant attention paid to sources in the early stages of the development of international criminal law. The issue of sources was largely neglected during the drafting of the constitutive instruments of the ad hoc inter­ nation­al tribunals, including the ICTY,47 the International Criminal Tribunal for Rwanda (ICTR),48 the Special Court for Sierra Leone (SCSL),49 the Extraordinary Chambers in the

42  Peil, ‘Scholarly Writings’ (n 12) 152. 43  Bordin, ‘Reflections’ (n 41) 552, 549–48. 44  ibid 544; Pellet, ‘Article 38’ (n 12) 757–58 citing Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, [1997] ICJ Rep 7, 38–42, paras 47, 50–4. 45  ibid paras 49–58. 46  Bordin, ‘Reflections’ (n 41) 544–45 citing Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, [2007] ICJ Rep 43, para 385, 398, 420, 431; Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, [2010] ICJ Rep 14, para 273; Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment, [2007] ICJ Rep 582, paras 31, 91. 47  Statute of the International Criminal Tribunal for the Former Yugoslavia, UNSC Res 827, UNSCOR, 48th Sess, 3217th Mtg, UN Doc S/RES/827 (25 May 1993) (hereafter ICTY Statute). 48  Statute of the International Criminal Tribunal for Rwanda, UNSC Res 955, UNSCOR, 49th Sess, 3453rd Mtg, UN Doc S/RES/955, (8 November 1994). 49  UN Secretary-General, Report on the Establishment of a Special Court for Sierra Leone, UNSCOR, 55th Sess, UN Doc S/2000/915, (4 October 2000).

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114   Neha Jain Courts of Cambodia (ECCC),50 and the Special Tribunal for Lebanon (STL),51 none of which specify the sources of international criminal law or their hier­archy.52 In contrast, Article 21(1) of the Rome Statute of the International Criminal Court on ‘Applicable Law’ provides the following list of sources: a) first, the Statute, Elements of Crimes, and Rules of Procedure and Evidence; b) second, treaties, principles, and rules of inter­ nation­al law; and c) failing that, general principles of law derived from laws of domestic legal systems, including those of the State that would normally have jurisdiction, as long as they are consistent with the Statute and with international law.53 This list differs from the one contained in Article 38(1) of the ICJ Statute in important respects. The Rome Statute, unlike the ICJ Statute, clearly contains a hierarchy as to the application of the sources—the ICC must first look to its own ‘internal’ or ‘proper’ sources (the Statute, Elements, Rules, and its own case law), then to other treaties and public international law rules, and to the general principles of law only if those still do not yield an answer.54 While there is no mention of the teachings of publicists or the jurisprudence of municipal and international tribunals, Article 21(2) authorizes the Court to ‘apply principles and rules of law as interpreted in its previous decisions’. This has not, however, prevented the ICC from turning to publicists, both to develop and interpret the provisions of the Rome Statute and to add heft to its decisions. While some of these uses of doctrine appear relatively banal, there are other areas of inter­nation­al criminal law, such as modes of liability, where the Court has pioneered an al­together different use of the teachings of publicists as a source of international crim­inal law.

B.  The Role of Scholarship in the Jurisprudence on Modes of Liability Few aspects of international criminal law have been as deeply contested as the modes of liability for attribution of conduct to the accused. In a remarkable exercise of in­ter­pret­ ive creativity, the ICTY (headed by judge and scholar extraordinaire Antonio Cassese) was responsible for pioneering the doctrine of joint criminal enterprise (JCE) as a form of principal responsibility for the collective criminality that characterizes international 50  Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, UNGA Res 57/228, UN Doc A/RES/57/228B/Annex (13 May 2003); Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, NS/RKM/1004/006 (27 October 2004). 51  Statute of the Special Tribunal for Lebanon, UNS Res 1757, UN Doc S/RES/1757 (30 May 2007). 52  Gilbert Bitti, ‘Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC’ in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal Court (Brill 2009) 285, 286–87 (hereafter Bitti, ‘Article 21’). 53  Rome Statute (n 8) art 21. 54  Bitti, ‘Article 21’ (n 52) 287–88. See also Allain Pellet, ‘Applicable Law’ in Antonio Cassese, Paola Gaeta, and John R W D Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol II (OUP 2002) 1051, 1053–54 (hereafter Cassese and others (eds), The Rome Statute).

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Teachings of Publicists and the Reinvention of the Sources   115 crimes.55 The JCE doctrine has since been subject to extensive commentary and criticism,56 and there was much speculation on whether it will be endorsed by the ICC, especially since the Rome Statute has a detailed provision on modes of liability that does not, on the face of it, include JCE.57 In its first pronouncement on modes of liability in the Lubanga confirmation of charges decision, the ICC belied expectations by comprehensively rejecting JCE as a potential form of principal liability under the Statute and introducing the doctrines of co-perpetration and indirect perpetration into international criminal law in its place.58 In Lubanga, the Pre-Trial Chamber purported to adopt a textual interpretation of Article 25(3)(a) of the Rome Statute. It noted different approaches to distinguishing between parties to a crime: objective (physical commission of the objective elements of the crime); subjective (the mental state accompanying the contribution to the crime); and ‘control’ (the decision on whether and how the offence will be committed). According to the Chamber, the doctrine of ‘control’ over the crime was expressly included in the provision on liability for indirect perpetration in Article 25(3)(a) of the Rome Statute.59 Thus, the notion of ‘co-perpetration’ in the same article had to cohere with this criterion for differentiating between principals and accessories.60 The Lubanga Pre-Trial Chamber then specified the objective and subjective elements of co-perpetration, which have formed a template for subsequent iterations of the elem­ ents by the Pre-Trial Chamber. The objective elements consist of, first, an agreement or a common plan between two or more persons. This plan can be implicit and should include an element of criminality, even though it need not be directed specifically at the commission of a crime.61 Second, there must be a coordinated essential contribution by 55  The Prosecutor v Tadić (Judgment) IT-94-1-A, (15 July 1999) paras 187–93 (ICTY, Appeals Chamber). 56 See e.g., Allison Marston Danner and Jenny S Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’ (2005) 93 California L Rev 75; Gideon Boas, James Bischoff, and Natalie Reid, International Criminal Law Practitioner Library, Vol I: Forms of Responsibility in International Criminal Law (CUP 2008) 8–141; Jens David Ohlin, ‘Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise’ (2007) 5 J of Intl Crim Justice 69. 57 See e.g., Florian Jessberger and Julia Geneuss, ‘On the Application of a Theory of Indirect Perpetration in Al Bashir: German Doctrine at the Hague?’ (2008) 6 J of Intl Crim Justice 853, 865 (predicting that the ICC may be willing to interpret accessory liability under art 25(3)(d) as a ‘little cousin’ of JCE); Thomas Weigend, ‘Intent, Mistake of Law and Co-Perpetration in the Lubanga Decision on Confirmation of Charges’ (2008) 6 J of Intl Crim Justice 471, 478 (remarking that Art 25(3)(d) ‘cracks open the door’ on JCE); Linda Engvall, ‘The Future of Extended Joint Criminal Enterprise – Will the ICTY’s innovation meet the standards of the ICC?’ (2007) 76 Nordic J of Intl L 241, 258 (arguing that JCE may be split between para (a) and para (d) of Art 25). 58  The Prosecutor v Lubanga (Decision on the Confirmation of Charges) ICC-01/04–01/06, (26 January 2007) (Pre-Trial Chamber I) (hereafter Lubanga (Confirmation of Charges)). 59  ibid paras 328–35, 338–39. 60  ibid paras 331–32, 349–50. 61  ibid paras 343–45; The Prosecutor v Katanga and Ngudjolo Chui (Decision on the Confirmation of Charges) ICC-01/04–01/07, (30 September 2008) paras 522–23 (Pre-Trial Chamber I) (hereafter Katanga and Ngudjolo Chui (Confirmation of Charges)); The Prosecutor v Muthaura, Kenyatta and Ali (Decision of the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09– 02/11, (23 January 2012) paras 399–400 (Pre-Trial Chamber II) (hereafter Muthaura, Kenyatta and Ali

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116   Neha Jain each perpetrator resulting in the realization of the objective elements of the crime.62 The first subjective element for co-perpetration is the accused’s fulfillment of all subjective elements of the crime with which he is charged. For most crimes under the jurisdiction of the ICC, this would mean meeting the ‘intent’ and ‘knowledge’ requirements in Article 30(1) of the Rome Statute.63 All co-perpetrators must also be mutually aware of and accept that the execution of the common plan may result in the realization of the objective elements of the crime.64 Finally, the accused must be aware of the factual circumstances enabling him to jointly control the crime.65 In the decision of confirmation of charges in Katanga and Ngudjolo, the Pre-Trial Chamber endorsed and expanded upon the notion of control under Article 25(3)(a) developed in Lubanga.66 In Katanga and Ngudjolo, however, the Chamber focused on the elements of liability for joint perpetration through another person. The Chamber saw no merit in the defence’s argument that the phrase ‘jointly with another or through another person’ can include either ‘co-perpetration’ or ‘indirect perpetration’, but not ‘indirect co-perpetration’.67 It then set out the objective elements for perpetration by (Confirmation of Charges)); The Prosecutor v Banda and Jerbo (Corrigendum of the Decision on the Confirmation of Charges) ICC-02/05–03/09, (7 March 2011) paras 129–35 (Pre-Trial Chamber I) (here­ after Banda and Jerbo (Confirmation of Charges)); The Prosecutor v Ruto, Kosgey and Sang (Decision of the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–01/11, (23 January 2012) paras 301–04 (Pre-Trial Chamber II) (hereafter Ruto, Kosgey and Sang (Confirmation of Charges)); The Prosecutor v Abu Garda (Corrigendum of the Decision on the Confirmation of Charges) ICC-02/05–02/09, (8 February 2010) paras 160, 163–232 (Pre-Trial Chamber I) (hereafter Abu Garda (Confirmation of Charges)). 62  Lubanga (Confirmation of Charges) (n 58) paras 346–48; Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 524–26; Muthaura, Kenyatta and Ali (Confirmation of Charges) (n 61) paras 401–06; Banda and Jerbo (Confirmation of Charges) (n 61) paras 136–49; Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) paras 305–12; Abu Garda (Confirmation of Charges) (n 61) paras 160, 180–232. 63  Lubanga (Confirmation of Charges) (n 58) paras 349–60. See also Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 527–32; The Prosecutor v Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC-01/05–01/08, (15 June 2009) para 351 (Pre-Trial Chamber I) (hereafter Bemba Gombo (Confirmation of Charges)); Muthaura, Kenyatta and Ali (Confirmation of Charges) (n 61) paras 410–17; Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) paras 333, 338–47; Abu Garda (Confirmation of Charges) (n 61) para 161; Banda and Jerbo (Confirmation of Charges) (n 61) paras 150–57. 64  Lubanga (Confirmation of Charges) (n 58) 361–65; Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 533–37. 65  Lubanga (Confirmation of Charges) (n 58) 366–67; Bemba Gombo (Confirmation of Charges) (n 63) para 351; Banda and Jerbo (Confirmation of Charges) (n 61) paras 150, 160–61; Abu Garda (Confirmation of Charges) (n 61) para 161. 66 See Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 480–86. 67  ibid paras 490–93. See also Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) paras 287, 289 (stating that the concept of indirect co-perpetration was derived from merging the two modes of participation in Article 25(3)(a), that was a dynamic approach to interpretation in conformity with the Vienna Convention on the Law of Treaties); Abu Garda (Confirmation of Charges) (n 61) paras 156–57. See Thomas Weigend, ‘Perpetration through an Organization: The Unexpected Career of a German Legal Concept’ (2011) 9 J of Intl Crim Justice 91, 110 (hereafter Weigend, ‘Perpetration through an Organization’) (stating that there is nothing novel about this mode of liability that is merely a combination of two accepted modes of perpetration).

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Teachings of Publicists and the Reinvention of the Sources   117 means, concentrating on the cases that it considered most relevant to international criminal law: the doctrine of Organisationsherrschaft.68 These elements have been re­iter­ ated in subsequent Pre-Trial Chamber Confirmation of Charges decisions.69 The first element consists of the perpetrator’s control over the organization.70 The Katanga and Ngudjolo Pre-Trial Chamber opined that since Article 25(3)(a) expressly provided for the commission of a crime through another culpable person, it would also encompass cases involving the principal’s control over an organization.71 The second element is the existence of an organized and hierarchical apparatus of power.72 The third element is execution of the crimes through ‘automatic’ compliance with orders.73 There has been a significant amount of academic writing critically assessing the ­merits of the ICC’s jurisprudence on indirect and co-perpetration.74 However, for the purposes of this chapter, far more intriguing are the sources the ICC has relied on to put forward indirect and co-perpetration as an appropriate exegetical result and to define the elements of these modes of liability. The doctrines are a clear instance of borrowing from civil law doctrines of perpetration, in particular from the German criminal law system, where they originated in the work of prominent German criminal law theorists tasked with developing the Dogmatik of German criminal law.75 The very framework for the distinction between parties to a crime (subjective, objective, and control) is taken from German scholarship,76 and the concept of ‘control’ to distinguish between per­pet­ rators and accessories was initially developed by German scholar Claus Roxin.77 The indebtedness of the doctrines to German criminal law scholarship is evident in the cit­ations in the Lubanga confirmation of charges decision.78 Tracking back the references produces even more striking results—most of the academic sources cited by the Pre-Trial Chamber in turn rely on the conceptual framework for perpetration recog68 See Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 495–99. 69  Muthaura, Kenyatta and Ali (Confirmation of Charges) (n 61) paras 407–10; Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) paras 313–32. 70 See Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 500–10; Muthaura, Kenyatta and Ali (Confirmation of Charges) (n 61) paras 407–10; Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) paras 313–32. 71  Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 501, 510. 72  ibid paras 511–14; Muthaura, Kenyatta and Ali (Confirmation of Charges) (n 61) para 408; Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) 313–17. 73 See Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) paras 515–18; Muthaura, Kenyatta and Ali (Confirmation of Charges) (n 61) paras 409–10; Ruto, Kosgey and Sang (Confirmation of Charges) (n 61) paras 313–32. 74  For a comprehensive review and citations, see Neha Jain, Perpetrators and Accessories in International Criminal Law: Individual Modes of Responsibility for Collective Crimes (Hart 2014) 81–98. 75  See e.g., Johannes Wessels and Werner Beulke, Strafrecht, allgemeiner Teil: Die Straftat und ihr Aufbau (42th revised edn, C F Müller 2012) 190–208 (hereafter Wessels and Beulke); HW Laufhütte and others (eds), Strafgesetzbuch Leipziger Kommentar (Großkommentar): Band 1 (12th revised edn, De Gruyter 2007) 1844–964 (hereafter Leipziger Kommentar) (on the development and explication of the modes of liability in German criminal law). 76  Wessels and Beulke (n 75) 193–95; Leipziger Kommentar (n 75) 1846–60. 77  Claus Roxin, Täterschaft und Tatherrschaft (De Gruyter 2006) 60–126. 78  See e.g., Lubanga (Confirmation of Charges) (n 58) at fn 425 citing Roxin and a number of authors who share his view.

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118   Neha Jain nized in German doctrine and inspired by one major author: Claus Roxin.79 Thus, even the scholarly chorus that undergirds the Pre-Trial Chamber’s analysis is heavily influenced by the ideas and writings of one towering intellectual figure, who is subsequently taken to represent an academic majority or consensus.80 Equally striking is the absence of references to almost any other sources. There is a passing reference to Judge Schomburg’s Opinions in the Gacumbitsi case at the ICTR and to the Stakić trial judgment at the ICTY.81 It is perfectly legitimate for the Pre-Trial Chamber to refer to the jurisprudence of the ad hoc tribunals, which is of persuasive value. However, Judge Schomburg’s reasoning also shows the clear influence of German scholarship. There are several direct references in the Opinion to the work of Roxin,82 and tracing back numerous other citations reveals Roxin as an important source of inspiration. For instance, Judge Schomburg cites the adoption of the concept of indirect perpetration by the German Federal Supreme Court (Bundesgerichtshof) in the Politbüro case, for which the original source is the work of Roxin.83 Similarly, his reference to the Argentinian National Appeals Court’s endorsement of the doctrine of in­dir­ect per­pet­ra­ tion in the Argentine Juntas case84 fails to acknowledge the overwhelming influence of German criminal law doctrine and theorists, including Roxin, on the Argentinian law dealing with modes of criminal responsibility.85 This pattern of references is repeated in the Katanga and Ngudjolo confirmation of charges decision, where nearly all the citations are to the Pre-Trial Chamber’s decision in Lubanga and to German scholarship,86 with the occasional nod to judicial decisions by a few national courts.87 Yet again, though, Claus Roxin is the Chamber’s 79  See e.g., Lubanga (Confirmation of Charges) (n 58) fn 418 citing Gerhard Werle, Principles of International Criminal Law (TMC Asser Press 2005) margin no 354 (who cites Kai Ambos, Der Allgemeine Teil des Völkerstrafrechts (Duncker & Humblot 2002) whose work in turn has numerous references to Roxin’s framework); Lubanga (Confirmation of Charges) (n 58) fn 418 citing George Fletcher, Rethinking Criminal Law (OUP 2000) 639 (whose primary citations are to German law and doctrine); Lubanga (Confirmation of Charges) (n 58) fn 419 citing Albin Eser, ‘Individual Criminal Responsibility’ in Cassese and others (eds), The Rome Statute (n 53) vol 1, 795 (who cites Friedrich-Christian Schroeder, Der Täter hinter dem Täter (Duncker & Humblot 1965), the precursor to Roxin’s theory of indirect perpetration). 80  This argument takes its inspiration from the methodological model developed in Lianne Boer’s work on consensus claims in the context of use of force. See Boer, ‘Consensus Claims’ (n 4) 1037–38. 81  Lubanga (Confirmation of Charges) (n 58) at fns 418, 422–24, 426, 432, 434, 436–37, 440, 442 citing The Prosecutor v Gacumbitsi (Judgment) ICTR-2001-64-A, (7 July 2006) (ICTR, Appeals Chamber, Separate Opinion of Judge Schomburg) (hereafter Gacumbitsi, Separate Opinion of Judge Schomburg); and The Prosecutor v Stakić (Trial Judgment) IT-97-24-T, (31 July 2003) (ICTY, Trial Chamber II). 82  Gacumbitsi, Separate Opinion of Judge Schomburg (n 81) fns 31–33, 37. 83  Gacumbitsi, Separate Opinion of Judge Schomburg (n 81) fns 35, 38 citing German Federal Supreme Court (Bundesgerichtshof), Judgment of 26 July 1994, BGHSt 40, 218, 236. On the Bundesgerichtshof ’s adoption and expansion of Roxin’s theory, see Weigend, ‘Perpetration through an Organization’ (n 67) 94–95, 98–99. 84  Gacumbitsi, Separate Opinion of Judge Schomburg (n 81), fn 34 citing Judgement on Human Rights Violations by Former Military Leaders of 9 December 1985, [1987] 26 ILM 317–72. 85 Cassandra Steer, Translating Guilt: Identifying Leadership Liability for Mass Atrocity Crimes (Springer and TMC Asser Press 2017) 215, 217–19. 86  Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) at fns 640, 642, 645–46, 647, 649, 655–60, 664–65, 678, 680–84, 686, 689 (citing, amongst other commentators, Roxin). 87  Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) at fns 667, 679.

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Teachings of Publicists and the Reinvention of the Sources   119 ‘crown witness’.88 When it comes to modes of liability at the ICC then, all roads ­eventually lead to Roxin and his adherents. The various elements of the modes of ­co-perpetration and indirect perpetration resemble their original counterparts in German criminal law doctrine, with only very few departures, such as the ability of the indirect perpetrator to secure automatic compliance with his orders based not on the element of fungibility of the direct perpetrators, but through intensive and violent training regimens for subordinates.89 The almost exclusive reliance on scholars varies markedly from the jurisprudence of the ad hoc tribunals, where surveys of the citation practice of the ICTY, for instance, have concluded that the influence of doctrine on the decision-making of the ICTY is marginal.90 This is not a particularly surprising conclusion, given that the ad hoc tribunals have been at pains to signal their adherence to the doctrine of sources in Article 38(1) of the ICJ Statute and have emphasized the ‘subsidiary’ character of the sources listed in Article 38(1)(d).91 The difference in approach between the ICC and the ad hoc tribunals suggests that the turn to doctrine for fleshing out modes of liability at the ICC cannot be fully accounted for by the fact that the traditional sources of public inter­nation­al law are silent on this question. It is important to note that while the doctrines of co-perpetration and indirect per­ pet­ra­tion are perfectly plausible interpretations of the text of Article 25(3), they are far from the only logical interpretation. As Van Sliedregt notes, contrary to the claims of the Pre-Trial Chamber in Lubanga, the drafting history of Article 25(3) suggests no single coherent doctrinal grounding for the modes of liability as a whole.92 The ostensibly text­ual interpretation has also been questioned by Judge Van den Wyngaert, whose Concurring Opinion in the Ngudjolo case93 challenges the derivation of the control theory from 88  Weigend, ‘Perpetration through an Organization’ (n 67) 94. 89  Katanga and Ngudjolo Chui (Confirmation of Charges) (n 61) para 518. This addition to the element of fungibility is not found in the original German doctrine: see Weigend, ‘Perpetration through an Organization’ (n 67) 107 (critical of this position, stating that the Chamber may have found it necessary to adapt the doctrine to suit the exigencies of mass atrocity in Africa). cf Harmen van der Wilt, ‘The Continuous Quest for Proper Modes of Criminal Responsibility’ (2009) 7 J of Intl Crim Justice 307, 312 (arguing that this new element introduces flexibility in the doctrine). 90  Michael Bohlander, ‘The Influence of Academic Research on the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia–A First Overview’ (2004) 3 Global Community: YB of Intl L and Jurisprudence 195, 208. See also Michael Bohlander, ‘Language, Culture, Legal Traditions and International Criminal Justice’ (2004) 12(3) J of Intl Crim Justice 491, 502 (conducting a qualitative assessment of the overall citations in the Lubanga trial judgment to conclude that 88% were academic sources). 91  Borda, ‘Formal Approach to Article 38(1)(d)’ (n 21) 653 citing The Prosecutor v Zoran Kupreškić et al. (Judgment) IT-95-16-T, (14 January 2000) para 540 (ICTY Trial Chamber); and The Prosecutor v Issa Hassan Sesay, Morris Kallon, Augustine Gbao (Judgment) SCSL-04-15-T, (2 March 2009) para 295 (SCSL, Trial Chamber). 92  Elies van Sliedregt, Individual Criminal Responsibility in International Law (OUP 2012) 85–6; Jens David Ohlin, Elies van Sliedregt, and Thomas Weigend, ‘Assessing the Control-Theory’ (2013) 26 Leiden J of Intl L 725, 744–45. 93  The Prosecutor v Ngudjolo Chui (Judgment Pursuant to Article 74 of the Statute, Concurring Opinion of Judge Christine Van den Wyngaert) ICC-01/04–02/12, (8 December 2012) (Trial Chamber II) (hereafter Ngudjolo (Judgment, Concurring Opinion Judge Van den Wyngaert)).

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120   Neha Jain German legal doctrine. According to Judge Van den Wyngaert, this ap­pro­pri­ation of the control theory violates both Article 31(1) of the Vienna Convention on the Law of Treaties, under which the court should interpret treaty terms according to their ‘or­din­ ary meaning’94 as well the principles of strict construction and in dubio pro reo enshrined in Article 22(2) of the Rome Statute. This would be true even if the control theory could be regarded as a ‘general principle of criminal law’ under Article 21(1)(c), that is highly doubtful.95 There is, however, an alternative explanation for the adoption of the control theory by the ICC, which lies in the doctrine of sources.

IV.  The Reliance on Doctrine On the face of it, the ICC’s resort to doctrine is merely an effort in treaty construction where it fleshes out the full meaning and import of the terms of the Rome Statute. However, the intricate liability structure that it produces scarcely resembles the everyday business of treaty interpretation. Indeed, it comes much closer to a technique that is much more common in civil law systems such as Germany: the heavy reliance on the Dogmatik to structure and understand the law.

A.  Scholars and the Dogmatik In an illuminating observation on the ICC’s jurisprudence, George Fletcher attempts to explain the interpretive stance of the Pre-Trial Chamber’s Lubanga and Katanga and Ngudjolo Confirmation Decisions as an attempt to develop a Dogmatik, or a ‘set of values and principles that provide the structure of a code of criminal law’96 on principles of liability based on the jurisprudence of scholars. As Fletcher notes, if the ICC were to follow this methodology consistently, it would involve a move away from strict adherence to the terms of the statute towards interpreting it in light of a Dogmatik that evolves through the jurisprudence of the ICC and scholars.97 Fletcher’s cursory remarks, however, pave the way to a more considered examination of whether the influence of the civilian tradition of sources of law and interpretation, in particular the role of scholars in the process, might signify a shift in the way doctrine will be used to develop inter­ nation­al law, at least in the specific field of international criminal law.

94  See also The Prosecutor v Lubanga (Judgment Pursuant to Article 74 of the Statute, Separate Opinion of Judge Fulford) ICC-01/04–01/06, (14 March 2012) paras 12, 13, 16 (Trial Chamber I) (hereafter Lubanga (Judgment, Separate Opinion of Judge Fulford)) (adopting a plain reading of the Statute). 95  Ngudjolo (Judgment, Concurring Opinion Judge Van den Wyngaert) (n 93) paras 14–20. See also Lubanga (Judgment, Separate Opinion of Judge Fulford) (n 94) paras 10–12. 96  George P Fletcher, ‘New Court, Old Dogmatik’ (2011) 9 J of Intl Crim Justice 179. 97  ibid 184.

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Teachings of Publicists and the Reinvention of the Sources   121 An idea of what this might entail can be obtained from looking at the esteem in which ‘doctrine’ is held in civil law traditions such as Germany, both historically and in the contemporary legal system. While scholarship or doctrine is by no means an official source of law, the concept of Lehre (teachings or ‘theory’) is integral to the systematization of the law.98 The herrschende Lehre (dominant teachings) are not enacted law, but being as they are, statements and theories about the basic legal principles that lend structure and coherence to the law as a whole, they are highly persuasive in judicial reason­ing and decision-making.99 Indeed, in the case of a gap in the law, some modern codes explicitly authorize judges to rely on ‘established doctrine’.100 The doctrine serves various functions, including providing answers to specific cases, critiquing the existing jurisprudence with the explicit aim of developing the law, and uncovering fundamental conceptual and structuring principles.101 This tradition of the high value placed on the writings of scholars has its origins in pre-classical and classical Roman law and stretches into the emergence of the modern civil law systems in the twelfth century, where the systematic study and exposition of the law at centres of learning had a significant influence on the judicial process.102 Professors were cited extensively by advocates, asked to weigh in on complex cases, and even used as a way for judges to avoid personal liability for potentially wrong judgments!103 The main features of this intellectual heritage persist till the present and scholars continue to be extremely influential in civil law as well as mixed-legal systems.104 The ICC’s jurisprudence on modes of liability owes much to a similar appropriation of doctrine (that is, moreover, not international but domestic in nature) whereby the systematizing function of scholarship constitutes a de facto source of law. What could account for this approach to the authoritativeness of doctrine?

B.  Scholars and their relationship to international criminal law Possible explanations for why the teachings of publicists have ascended to the status of a dominant legal source in the ICC’s jurisprudence on forms of responsibility must take 98  See George P Fletcher, ‘Two Modes of Legal Thought’ (1981) 90 Yale L J 970, 988. 99  ibid 988–94 (on Germany); John Henry Merryman, ‘The Italian Style I: Doctrine’ (1965) 18 (2) Stanford L Rev 39, 42–3 (on Italy). See also William Twining and others, ‘The Role of Academics in the Legal System’ in Peter Cane and Mark Tushnet (eds), The Oxford Handbook of Legal Studies (OUP 2003) 920, 937 (hereafter Twinning and others, ‘The Role of Academics’). 100  Swiss Civil Code of 10 December 1907, art 1.3 (English translation available at accessed 3 July 2018.) 101  Twinning and others, ‘The Role of Academics’ (n 99) 936–37. 102  ibid 938. See also R C Van Caenegem, Judges, Legislators, and Professors (CUP 1987) 59–70. 103  Twinning and others, ‘The Role of Academics’ (n 99) 938; Andras Jakab, ‘Seven Role Models of Legal Scholars’ (2011) 12 German L J 757, 758–59. 104  Twinning and others, ‘The Role of Academics’ (n 99) 938–39; Jurij Fedynskyj, ‘Book Review: The Role of Judicial Decisions and Doctrine in Civil Law and Mixed Jurisdictions, edited by Joseph Dainow’ (1975) 50 Indiana L J 636, 637–38.

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122   Neha Jain into account the distinctly ‘scholarly’ background of the development of the institutions of international criminal justice. In the beginning of the revival of international crim­ inal law in the 1990s, prominent public international law academics such as Cherif Bassiouni played a central role in the establishment and design of international criminal tribunals such as the ICTY.105 The influence of public international law scholars was apparent in the academic spirit and style of ICTY judgments spearheaded by judgeacademic Antonio Cassese, whose reputation as a public international law scholar was eclipsed only by his role in the development of the early jurisprudence of the ICTY.106 Bassiouni and other prominent scholars were also instrumental in the drafting of the Rome Statute of the ICC; and the subsequent phase of the maturing of international criminal law has witnessed the growing participation of scholars with a primarily crim­ inal law background.107 The composition of this ‘invisible college’ of international crim­inal law scholars has also shifted and now includes academics from traditionally under-represented parts of the globe, including Eastern Europe, Asia, and Africa.108 Scholars continue to occupy a crucial role in the discourse of international criminal justice, not only due to their advisory role in significant processes such as the ne­go­ti­ ations leading to the definition of the crime of aggression,109 but also because of the revolving door that characterizes the practice of international criminal law.110 From the very inception of international criminal tribunals, there has been a close connection between lawyer-academics who move between important roles in government or academia and then go on to careers as lawyers and judges in international courts, and sometimes return to yet more illustrious careers in policy positions in their home countries.111 The quasi-academic pedigree of the ad hoc tribunals and the ICC, and the scholarly background of influential individual lawyers and judges who have played important roles in the formulation and application of international criminal legal rules might explain their readiness to turn to doctrine as a source of inspiration or authority. The nature of scholarship in international criminal law is also quite varied and serves a multitude of purposes: theoretical/conceptual systematization, doctrinal construction, value-oriented activism, critical reflection, and empirical evaluation.112 The conceptual and normative focus of a good proportion of international criminal law scholarship may in fact be one of the contributing factors in its influence on the jurisprudence of the 105  Claus Kreß, ‘Towards a Truly Invisible College of International Criminal Lawyers’ (2014) Torkel Opsahl, FICHL Occasional Papers Serie No 4, at 6. 106  ibid 6–7. 107  ibid 7–8. 108  ibid 26–33. 109  ibid 19. It bears mentioning that Kreß himself played a significant role in the codification of the crime of aggression. 110  See Mikkel Jarle Christensen, ‘Academics for International Criminal Justice: The Role of Legal Scholars in Creating and Sustaining a Legal Field’ (2014) iCourts Working Paper Series No 14 accessed 3 July 2018. 111  ibid 10–18 (tracing the career trajectories of some prominent lawyer-academics throughout the history of international criminal law). See also Sergey Vasiliev, ‘On Trajectories and Destinations of International Criminal Law Scholarship’ (2015) 28 Leiden J of Intl L 1, 9–10 (on the ever close connections between ‘academic scholarship’ and ‘scholarship of action’). 112 ibid 11–13. See also Carsten Stahn and Eric D Brabandere, ‘The Future of International Legal Scholarship: Some Thoughts on “Practice”, “Growth”, and “Dissemination” ’ (2014) 27 Leiden J of Intl L 1, 3–5.

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Teachings of Publicists and the Reinvention of the Sources   123 international criminal tribunals, especially given the relatively underdeveloped state of the principles governing international criminal law, even by the time the ICC was established and began to function. In some ways, this reliance on non-traditional sources to promote and develop (rather than merely serve as evidence of) the law is not unique to the ICC. For instance, scholars have pointed to rare instances where individual opinions of judges at the ICJ cite the teachings of publicists to similar effect.113 In the context of international crim­inal law, scholar-judges such as Antonio Cassese early on pioneered a ‘critical positivism’ in their approach to finding and developing the principles of international criminal law.114 For Cassese, an international jurist faced with the indeterminacy of the law was justified in drawing on general principles that expressed (purportedly) universal values such as peace, democracy, and the rule of law to make an explicit choice between conflicting legal claims based on extra-legal considerations.115 Cassese has been compared to Lauterpacht in his approach to the progressive interpretation of law that is nevertheless grounded in a largely positivist framework.116 This can be seen, for instance, in his heavy emphasis on the element of opinio juris as compared to state practice for the identification of rules of customary international law.117 The readiness to harness sources of law that fall outside the hierarchy of the formal sources of public international law has meant that subsidiary actors, such as judges and scholars, have assumed an unusually authoritative role in the creation and interpretation of the rules of international crim­inal law.118 In the absence of any sophisticated pre-existing international criminal law framework, their task has often not been one of mere identification of the law, but that of conceptually oriented and value-laden development of the rules governing inter­nation­al criminal law.119

113 Peil, ‘Scholarly Writings’ (n 12) 155–57 citing Fisheries (United Kingdom v Norway), Merits, Judgment, [1951] ICJ Rep 145, 148–49 (Individual Opinion of Judge Alvarez); Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v Thailand), Provisional Measures, Order of 18 July 2011, Separate Opinion of Judge Trindade, [2011] ICJ Rep 566, Sections II–XI. 114 Antonio Cassese, ‘Introduction’ in Antonio Cassese (ed), Realizing Utopia: The Future of International Law (OUP 2012) xvii; Antonio Cassese (ed), Five Masters of International Law: Conversations with R-J Dupuy, E Jiménez de Aréchaga, R. Jennings, L. Henkin and O. Schachter (Hart 2011) 255–59. 115  For an exposition of Cassese’s critical positivism, see Isabel Feichtner, ‘Realizing Utopia through the Practice of International Law’ (2012) 23 European J of Intl L 1143, 1149–51; Hernández, ‘Responsibility’ (n 33) 28–9. 116 Robert Cryer, ‘International Criminal Tribunals and Sources of International Law: Antonio Cassese’s Contribution to the Canon’ (2012) 10 J of Intl Crim Justice 1045, 1061. 117  ibid 1049. 118  See Cassandra Steer, ‘Non-State Actors in International Criminal Law’ in Jean d’ Aspremont, W Michael Reisman, and Math Noortmann (eds), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (Routledge 2011) 295, 295–99. 119  Public international law scholars have widely differing views on the appropriateness of this normative function played by publicists. See generally Jörg Kammerhofer, ‘Orthodox Generalists and Political Activists in International Legal Scholarship’ in Matthew Happold (ed), International Law in a Multipolar World (Routledge 2011) 138, 146–47; Jochen von Bernstorff, ‘International Legal Scholarship as a Cooling Medium in International Law and Politics’ (2014) 25 European J of Intl L 977; Oppenheim,

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124   Neha Jain

V. Conclusion Does the newfound importance given to doctrine in the development of modes of liability imply that in contrast to traditionally state-made public international law, inter­ nation­al criminal law, at least in specialized areas, can be characterized as professormade? This would be too rigid a dichotomy. The ICC’s reliance on the teachings of publicists to develop an international law framework on modes of liability is but one instance of the emergence of doctrine as a de facto source of law, that may end up being limited to this highly technical criminal-law-specific area of the law. Indeed, one can argue that even when it comes to the elements of perpetration responsibility, after an initial embrace of doctrine as a source of law, the ICC has subsequently chosen to cite its own previous decisions on the requirements for liability as a perpetrator and largely refrained from referring to academic commentary.120 In doing so, the Court is clearly on firmer ground: under Article 21(2) the Court may apply ‘principles and rules of law as interpreted in its previous decisions’. This contrast in the use of sources is nevertheless striking, especially when one considers that there is now a rich discussion on modes of responsibility by international criminal law scholars, and the Court could thus avoid charges of relying exclusively on select domestic law debates. Should this pattern of references continue, in time, the original academic source of the elements of perpetration responsibility is likely to be obscured. Alternatively, the turn to jurists could signal a broader recognition by judges of the need to go beyond the official catalogue of sources in the Rome Statute, that very often do not contain concrete answers to the specific legal questions the Court confronts. For instance, a similar reliance on doctrine is noticeable in decisions and individual opinions on the elements required to establish the existence of crimes against humanity under Article 7 of the Rome Statute.121 In traditional public international law, however, the teachings of publicists are intended to serve this gap-filling function only indirectly, by providing material evidence that meets the criteria for establishing the ‘formal’ sources of law. To do otherwise may run counter to the principle of legality enshrined in the Rome Statute, which includes the prohibition against ex post facto criminalization, strict construction of crime definitions and restriction on extensions by analogy, and

‘Science of International Law’ (n 34) at 335; Schwarzenberger, ‘The Province of the Doctrine’ (n 23) 244, 259 (critical of this normative role). 120  However, as discussed earlier, these previous decisions are themselves based on the teachings of publicists, which remain the original source for the modes of liability. 121  See e.g., Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09-19-Corr, (31 March 2010) fns 83–85, 87–90 (Pre-Trial Chamber II) (on the meaning of a state or organizational policy to commit an attack); The Prosecutor v Ruto and Sang (Decision on Defence Applications for Judgments of Acquittal, Dissenting Opinion of Judge Herrera Carbuccia) ICC-01/09–01/11, (5 April 2016) fns 70, 72, 73, 75, 76, 78, 79, 80, 82, 83, 85, 87, 88, 90, 92 (Trial Chamber V(A)).

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Teachings of Publicists and the Reinvention of the Sources   125 the rule of in dubio pro reo.122 The Court could potentially still rely on the systematizing function of ‘doctrine’ to lend structure and coherence to the criminal law enshrined in the Rome Statute; after all, civil law systems that embrace this role played by doctrine in their criminal law systems manage to do so without jeopardizing their compliance with the principle of legality. If the Court chooses to traverse this path, it would need to address far more explicitly the scope and nature of the Dogmatik and its interpretive function within the framework of the Rome Statute. In particular, the Court will need to be conscious of the limits of using scholarship developed in the context of domestic legal systems to craft a Dogmatik for international criminal law. The Court could also use the teachings of publicists on international criminal law, as a ‘documentary’ or ‘law-determining’ source, which serves to evidence the existence of the ‘formal’ sources in Article 21(1) of the Rome Statute. Doctrine could prove useful in identifying the existence of ‘principles and rules of international law’ and ‘general principles of law derived from laws of domestic legal systems’. In this exercise, the Court must, however, be careful to distinguish between commentary that truly highlights the evidentiary basis for the ascertainment of the formal sources and scholarship that is more normative in character. In general public international law, an influential strain of scholarship has long been skeptical of the ‘ruleness’ of sources of law, especially of those that are considered formal sources.123 Thus, rather than identifying a single rule of recognition for international law,124 scholars have pushed for an emphasis on the social practice of authorities tasked with applying the law. Under this understanding, what qualifies as a source of law will depend as much on an act of interpretation by the relevant law-applying authority, as does the content of the law. Moreover, as this social practice shifts and evolves, so will the criteria for law-ascertainment.125 The ICC’s jurisprudence to date indicates that the Court is still formulating its position on legal sources, their hierarchy, and their interpretation.126 In this process, the Court will also be interpreting Article 21(1), which outlines the sources of law. As the ICC continues to engage in this exercise, its pronouncements are likely to constitute one of the most significant arbiters of what counts as a source of international criminal law, not only for the purposes of the Rome Statute, but also for the broader field of international criminal law.

122  Rome Statute (n 8) art 22. 123  See e.g., Jean d’ Aspremont, ‘The Idea of “Rules” in the Sources of International Law’ (2014) 84 British YB of Intl L 103 (hereafter d’Aspremont, ‘The Idea of “Rules” ’); Charlesworth, ‘Law-Making and Sources’ (n 31) 200. See also Jean d’Aspremont, ‘The Politics of Deformalization in International Law’ (2011) 3 Göttingen J of Intl L 503, 518–20 (describing various non-formalist approaches to sources of international law). 124  In Hartian terms, every legal system must have an ultimate single rule of recognition. See Grant Lamond, ‘Legal Sources, the Rule of Recognition, and Customary Law’ (2014) 59 American J of Jurisprudence 25, 28. 125  d’Aspremont, ‘The Idea of “Rules” ’ (n 123) 115–17. 126  See e.g., Neha Jain, ‘Interpretive Divergence’ (2017) 57 Virginia J of Intl L 45 (analyzing the ICC’s approach to treaty interpretation).

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Section II

SPAC E S

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Chapter 6

L egiti m acy i n Wa r a n d Pu n ish m en t The Security Council and the ICC Tom Dannenbaum

I. Introduction Does the International Criminal Court (ICC) suffer from a legitimacy deficit? In terms of what Richard Fallon calls ‘sociological legitimacy’—acceptance by the relevant public of the institution’s authority as appropriate or justified—the Court is plainly in a difficult moment.1 States upon whose support and cooperation it depends are openly resisting, questioning, or weakening it. Burundi became the first state to withdraw in late 2017.2 Months later, the Philippines announced its exit, which was consummated on schedule in March 2019.3 Encouraged by the African Union (AU), others, including erstwhile ICC champion South Africa, have considered following suit.4 Also with AU backing, a 1  Richard H Fallon Jr, ‘Legitimacy and the Constitution’ (2005) 118(6) Harvard L Rev 1787, 1794–96 (hereafter Fallon, ‘Legitimacy and the Constitution’). 2  Agence France-Presse, ‘Burundi Becomes First Nation to Leave International Criminal Court’ The Guardian (London, 27 October 2017). 3  ‘Statement of the President of the Republic of the Philippines on the Jurisdiction of the International Criminal Court’ (13 March 2018) accessed 8 September 2018; Jason Gutierrez, ‘Philippines Officially Leaves the International Criminal Court’ The New York Times A9 (New York, 18 March 2019) 4  Assembly of the African Union, ‘Decision on the International Criminal Court’, 28th Ordinary Sess, Doc EX.CL/1006(XXX), (30–31 January 2017) para 8. A domestic court ruling finding procedural irregularity prompted South Africa to revoke its initial withdrawal instrument. Democratic Alliance v. Minister of International Relations and Cooperation and Others (83145/2016) [2017] ZAGPPHC 53; 2017 (3) SA 212 (GP); [2017] 2 All SA 123 (GP); 2017 (1) SACR 623 (GP). Initially, the government indicated that it would restart the process, however it has since undergone a change in leadership. Abdur Rahman Alfa Shaban, ‘South Africa’s Ruling Party Support’s ICC Exit Ahead of al-Bashir Ruling’ (Africa News, 5 July 2017)

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130   Tom Dannenbaum long list of governments refused over the course of a decade to arrest then Sudanese President Omar al-Bashir, despite a long-standing warrant and the Court’s repeated insistence on their obligation to do so.5 Russia has mimicked the United States’ earlier ‘unsigning’ of the Rome Statute.6 And tension has grown around the issue of the Court’s budget.7 With politically delicate investigations underway or imminent, the path ahead does not promise a quick turnaround. In light of this escalating resistance, the time is ripe to reflect on whether the ICC’s legal authority is normatively well grounded. Rather than seeking to explain state resistance empirically, this latter query goes to what Fallon would call the Court’s ‘moral legitimacy’.8 Is the Court morally justified in its exercise of authority? As will be discussed in this chapter, the answer depends in part on the Court’s capacity to realize the ­normative purpose of its endowment with that authority.9 The moral and sociological forms of legitimacy (or illegitimacy) need not align. Significant numbers of states could resist a morally legitimate court. Equally, a majority might endorse and comply with a morally illegitimate one. Even when sociological and moral legitimacy converge, they may do so for different reasons. Thus, in questioning the Court’s moral legitimacy in certain situations, this chapter claims neither that the reasons that warrant such skepticism are the primary reasons motivating state resistance to the Court, nor that state motivations for resistance are themselves defensible. It claims only that there are robust normative grounds for questioning the Court’s authority, at least in certain contexts. The central legitimacy flaw explored here is specific to Security Council referrals of situations involving the nationals and territories of states that have not ratified the ICC accessed 8 September 2018. 5  After a series of diversely reasoned Pre-Trial Chamber decisions against states refusing to arrest a­ l-Bashir, the Appeals Chamber finally weighed in on the matter, confirming that the obligation stood despite al-Bashir’s position as head of state of Sudan at the time of the failures to arrest. Prosecutor v. Al Bashir (Judgment in the Jordan referral re Al-Bashir Appeal), ICC-02/05–01/09, (6 May 2019) (Appeals Chamber). On the AU position, see Assembly of the African Union, ‘Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court’, 13th Ordinary Sess, Doc Assembly/ AU/Dec 245(XIII), (1–3 July 2009). 6 The Ministry of Foreign Affairs of the Russian Federation ‘Statement by the Russian Foreign Ministry’ (Press Release, 16 November 2016) accessed 8 September 2018. 7  Matt Brown, ‘African Withdrawals Mask the Real Issue at the Assembly of States Parties 15’ (Opinio Juris, 8 December 2016) accessed 8 September 2018; Elizabeth Evenson and Jonathan O’Donohue, ‘States shouldn’t use ICC budget to interfere with its work’ (Amnesty International, 23 November 2016) accessed 8 September 2018. 8  Fallon, ‘Legitimacy and the Constitution’ (n 1) 1796–801. 9  This is closely related to what Buchanan and Keohane identify as the ‘integrity’ criterion of institutional legitimacy in the context of global governance. Allen Buchanan and Robert O Keohane, ‘The Legitimacy of Global Governance Institutions’ (2006) 20 Ethics & Intl Affairs 405, 422–24 (hereafter Buchanan and Keohane, ‘Legitimacy’).

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Legitimacy in War and Punishment   131 Statute. The Court acts in such situations pursuant to unambiguous legal authority. However, that authority depends on the acquiescence of each of the permanent members of the Security Council, three of which are not ICC states parties. That institutional context undermines significantly the Court’s legitimacy in exercising its legal authority. Part II discusses the three premises underpinning this claim. First, the most de­fens­ ible philosophy of punishment at the international level is one of moral expressivism. On that theory, punishment is justified by its unique capacity to express appropriate societal condemnation of, and non-acquiescence in, criminal wrongdoing. Second, whether moral condemnation is justified is not simply a question of whether wrong­doing occurred and the responsible party was culpable: It requires also that the actor or institution issuing the condemnation has moral standing to do so. Third, institutions that exercise power depend for their moral legitimacy on their capacity to perform the central normative function(s) that justify that allocation of power. Thus, the moral legitimacy of an international criminal court or tribunal hinges in part on its moral standing to issue justified condemnation. Part III builds on those premises to argue that when the ICC acts pursuant to Security Council authority, its dependence on the acquiescence of the US, Russia, and China (call them the ‘non-party permanent members’) undermines its moral standing to condemn. Indeed, the ICC may be worse off in this respect than were the ad hoc tribunals and possibly even than were the post-World-War-II tribunals in Nuremberg and Tokyo. In contrast to those earlier tribunals, the ICC’s institutional permanence affords states the opportunity to affirm or reject its authority over their territories or nationals in a presumptively permanent way. The rejection of that authority by the non-party ­permanent members is uniquely harmful to the Court’s standing to condemn in Council-referred cases. If that thesis is right, it flips on its head the reverse divergence invoked so frequently since NATO’s 1999 military action in Kosovo, whereby unauthorized humanitarian interventions have been described as ‘illegal but [morally] legitimate’.10 Indeed, the thesis advanced here might seem to be in deep tension with a closely related post-Kosovo development—the notion that the Security Council has a responsibility to authorize the use of force to stop atrocity, and that the Council loses legitimacy when it fails to do so, even though such inaction falls clearly within the bounds of its legal discretion. Part IV asks whether it is possible to hold these apparently contradictory views simultaneously. Is the view that there is a legitimacy imperative for the Security Council to authorize force in response to atrocity compatible with the view that there is a le­git­im­acy imperative against the Council’s referral of precisely such situations to the ICC? The reason to respond affirmatively is that the different roles of force and punishment in international law implicate different normative stakes, and thus distinct standards of legitimacy. International criminal punishment is about blame; the use of force is about 10  Independent International Commission on Kosovo, The Kosovo Report (OUP 2000) 4 (hereafter IICK Report).

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132   Tom Dannenbaum preventing certain kinds of wrongful harm. Standing is essential to an institution’s moral capacity to issue condemnation, including in the form of criminal punishment. However, it is less relevant to an institution’s moral capacity to use force, because it does not define the institution’s efficacy in responding to and preventing wrongful acts or threats. Part V argues that if this is right, the ICC’s legitimacy could be enhanced in one of two ways. If it were endowed with universal jurisdiction regarding international crimes, it could claim credibly to stand as an impartial supranational authority channeling universal values in a way that it cannot currently. Alternatively, if it were endowed exclusively with territorial and nationality jurisdiction, it could claim credibly to express the values of the community of states parties in contexts in which their values are implicated and their authority to determine normative boundaries is unambiguous. Of the two, the universal posture may better match the aspirations of international criminal justice. However, such a change to the structure of ICC jurisdiction is difficult to imagine in the short run. In the meantime, the Court’s legitimacy would benefit from a de facto move to the other alternative, whether through the Council refraining from ICC referrals, or the prosecutor declining to pursue such referrals ‘in the interests of justice’.

II.  Moral Expressivism, Standing to Blame, and Institutional Legitimacy The first premise of the argument goes to the appropriate philosophy of punishment at the international level. Multiple justificatory theories have been offered in that regard, drawing on classic theories of domestic criminal punishment. Many frame international criminal justice as a mechanism for deterring atrocity.11 Others have argued that it is necessary to incapacitate individuals who are uniquely threatening to individual rights, fundamental values, or stability.12 Still others have framed it in retributivist terms—as a matter of issuing just deserts.13 Whatever the utility of these theories in the domestic 11  See e.g., Payam Akhavan, ‘Beyond Impunity Can International Criminal Justice Prevent Future Atrocities?’ (2001) 95 American J of Intl L 7, 10; Deirdre Golash, ‘The Justification of Punishment in the International Context’ in Larry May and Zachary Hoskins (eds), International Criminal Law & Philosophy (CUP 2010) 201, 211; Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (2002) 13(3) European J of Intl L 561, 569; Prosecutor v Delalić et al (Judgment), IT-96-21-A, (20 February 2001) para 806 (ICTY, Appeals Chamber) (hereafter Delalić); Prosecutor v Rutaganda (Judgment and Sentence), ICTR-96–3, (6 December 1999) para 456 (Trial Chamber I) (hereafter Rutaganda). 12  Gary J Bass, ‘Jus Post Bellum’ (2004) 32 Philosophy & Public Affairs 384, 404; Alexander K A Greenawalt, ‘Milosevic and the Justice of Peace’ in Timothy William Waters (ed), The Milošević Trial: An Autopsy (OUP 2013) 377; David Luban, ‘Fairness to Rightness’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 569, 575–76 (hereafter Luban ‘Fairness to Rightness’). 13  Delalić (n 11) para 806; Rutaganda (n 11) para 456; Alexander K A Greenawalt, ‘International Criminal Law for Retributivists’ (2014) 35 University of Pennsylvania J of Intl L 969; Jon Elster, ‘Retribution’ in Retribution and Reparation in the Transition to Democracy (CUP 2006) 33–56.

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Legitimacy in War and Punishment   133 realm, none plausibly identifies the core normative function of international criminal justice as currently constituted. In addition to the standard objections to deterrence theory domestically, inter­nation­al criminal law addresses situations in which a presumption of rational action is dubious, arrest is unlikely, and in which individuals anyway face competing incentives of physical and political survival that dominate the prospect of criminal punishment in both urgency and severity.14 Retributivist theories also fail. A system of highly selective and necessarily meagre punishment cannot plausibly perform the metaphysical rebalancing that retributivism demands; penalties are difficult to justify in juxtaposition to punishments for ordinary domestic crime; and fair play versions of retributivism are unpersuasive in situations of social breakdown or competing international and domestic laws.15 Incapacitation theories fare little better. Inevitably, they place excessive causal weight on a small number of individuals whose arrest is feasible typically only once they no longer hold political sway.16 Moreover, they fail to account for the danger that pros­ ecut­ing those persons (rather than exiling them, for example) will revive their political status and fuel (rather than suppress) the very narratives of grievance and victimization that motivate atrocity in the first place.17 Recognizing the failure of these standard theories of criminal punishment when transposed to the international level, a growing number of scholars have come to the conclusion that international criminal punishment is best understood as a mechanism of moral expression.18 Paraphrasing Joel Feinberg’s classic articulation in the domestic realm, Robert Sloane argues that international criminal punishment is the international 14  Tom Dannenbaum, ‘Crime Beyond Punishment’ (2009) 15(2) University of California Davis J of Intl L & Policy 189, 203–08 (hereafter Dannenbaum, ‘Crime Beyond Punishment’); Robert D Sloane, ‘The Expressive Capacity of International Punishment’ (2007) 43 Stanford J of Intl L 39, 71–75 (hereafter Sloane ‘Expressive Capacity’); Mark A Drumbl, ‘A Hard Look at the Soft Theory of International Criminal Law’ in Leila Nadya Sadat and Michael P Scharf (eds), The Theory and Practice of International Criminal Law (Brill 2008) 1, 14–15 (hereafter Drumbl ‘A Hard Look at the Soft Theory’); Julian Ku and Jide Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?’ (2006) 84 Washington University L Rev 777. But see Hyeran Jo and Beth Simmons, ‘Can the International Criminal Court Deter Atrocity?’ (2016) 70(3) Intl Organization 443 (arguing that the ICC can deter in limited ways despite these obstacles); Nick Grono and Anna de Courcy Wheeler, ‘The Deterrent Effect of the ICC on the Commission of International Crimes by Government Leaders’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 1225. 15  Dannenbaum, ‘Crime Beyond Punishment’ (n 14) 194–203; Sloane ‘Expressive Capacity’ (n 14) 60, fn 146; Drumbl ‘A Hard Look at the Soft Theory’ (n 14) 11–14. 16  Dannenbaum, ‘Crime Beyond Punishment’ (n 14) 215–17; Drumbl ‘A Hard Look at the Soft Theory’ (n 14) 15. 17  Dannenbaum, ‘Crime Beyond Punishment’ (n 14) 215–17. On the potential for trials to exacerbate the collective senses of grievance that underpin atrocity, see Marko Milanović, ‘Establishing the Facts About Mass Atrocities’ [2016] 47 Georgetown J Intl L 1321 (hereafter Milanović, ‘Establishing the Facts’). 18  See Sloane ‘Expressive Capacity’ (n 14); Luban ‘Fairness to Rightness’ (n 12) 575–76; Diane Marie Amann, ‘Group Mentality, Expressivism, and Genocide’ [2002] 2 IntlCLR 93, 117; Margaret M. deGuzman, ‘Choosing to Prosecute’ [2012] 33 MichJIntlL 265; Mark  A.  Drumbl, Atrocity, Punishment, and International Law (2007) 3, 61, 173–79; Ralph Henham, ‘Some Issues for Sentencing in the International Criminal Court’ [2003] 52 ICLQ 81, 111; Bill Wringe, ‘Why Punish War Crimes?’ [2006] 25 L&Phil 151; Conor McCarthy, Reparations and Victim Support in the International Criminal Court (2012) 132–33.

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134   Tom Dannenbaum community’s attempt ‘authoritatively to disavow that conduct, to indicate symbolically its refusal to acquiesce in the crimes, to vindicate international human rights norms and the laws of war’.19 On this account, when the ICC punishes, it does not simply impose a cost on the criminalized behaviour; it condemns the perpetrator and disavows her act.20 It is upon accepting this starting point that the second premise of the argument becomes important. A key insight from the philosophy of blame and blaming is that the question of whether condemnation is morally appropriate is not merely a function of whether the potential target of that condemnation engaged in culpable wrongdoing. Another essential element is that the person or body engaged in condemnation must have the moral standing to blame the wrongdoer.21 Thus, whereas ‘a judgment of blameworthiness is [one] that anyone can make’, issuing blame requires that the blaming agent is able to stand in a particular kind of relationship vis-à-vis the wrongdoer and the wrong.22 This requirement is familiar from the morality of ordinary life. An individual’s complicity in another’s wrongdoing, or culpability for similar past wrongs against the present wrongdoer would undermine the former’s standing to issue blame, even though neither would mitigate the latter’s blameworthiness.23 Consider a simple case. Adolf Eichmann culpably perpetrated extraordinary wrong­doing in the context of the Holocaust. Nonetheless, it would have been morally in­defens­ible for Adolf Hitler or Heinrich Himmler to have condemned him for those wrongs.24 The fact that blame from the latter two would have been inappropriate says nothing about either the gravity of Eichmann’s wrongdoing or his culpability for it. It hinges entirely on the connection of Hitler and Himmler to precisely the same wrong, and thus their lack of standing to condemn Eichmann on that front. Blame, in short, is an agent-relative normative concept. The concept of ‘standing’ in the legal realm refers typically to a threshold requirement for bringing a legal claim. There is no notion that courts must have legal standing; the limits of courts’ reach are defined instead by rules of admissibility and jurisdiction. To the extent a system of criminal justice is justified as a system of retribution, deterrence, or incapacitation, there may also be no need to think about the moral standing of 19  Sloane ‘Expressive Capacity’ (n 14) 71. See also Prosecutor v Blaškić (Judgment), IT-95-14-A, (29 July 2004) (Appeals Chamber) (acknowledging that punishment is in part a mechanism for the international community to issue ‘public reprobation and stigmatisation’ para 678). 20  Arguably, condemnation is constitutive of criminal punishment at any level. Dan M Kahan, ‘What Do Alternative Sanctions Mean?’ (1996) 63(2) University of Chicago L Rev 591, 599. On moral expressivism generally, see Elizabeth S Anderson and Richard H Pildes, ‘Expressive Theories of Law’ (2000) 148 University of Pennsylvania J of Intl L 1503; Joel Feinberg, ‘The Expressive Function of Punishment’ (1965) 49 Monist 397. 21  Gerald A Cohen, ‘Casting the First Stone: Who Can, and Who Can’t Condemn the Terrorists?’ in Finding Oneself in the Other (Princeton UP 2013) 115 (hereafter Cohen, ‘Casting the First Stone’); Marilyn Friedman, ‘How to Blame People Responsibly’ (2013) 47 J of Value Inquiry 271; T M Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Harvard UP 2008) 175–76 (hereafter Scanlon, Moral Dimensions). 22  ibid 175. See also Cohen, ‘Casting the First Stone’ (n 21) 119–21. 23 Scanlon, Moral Dimensions (n 21) 176–78. 24  cf Cohen, ‘Casting the First Stone’ (n 21) 124, 126.

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Legitimacy in War and Punishment   135 crim­inal courts. In those realms, what matters, in addition to protecting the rights of the accused and guarding against the punishment of innocents, is that just deserts are realized, wrongdoing is made costlier and thus less prevalent, and wrongdoers are taken off the streets, respectively. Moral standing is not itself essential to such tasks, although some of its criteria may be. To the extent criminal courts are best understood as agents of communal moral condemnation, however, their fulfilment of that core normative function hinges fundamentally on their moral standing to blame. This goes to the third premise of the argument. The moral legitimacy of any institution that exercises power is contingent on its capacity to perform its core normative function effectively.25 Lacking that capacity, its exercise of power does not provide the contribution to society that justifies its endowment with that power. Exercised in that way, power becomes arbitrary. The consequences of this view for international criminal courts or tribunals are significant. If it is correct that such courts serve the normative function of channeling justified condemnation, it follows from the above that they depend for their legitimacy on having moral standing. If they lack such standing, they cannot perform that function. Assuming jurisdiction and admissibility, their positive legal authority may remain intact, but they would exercise it without moral legitimacy. Ordinarily, the moral standing of criminal courts in this respect is simply presumed. Indeed, the system of criminal justice ought to be set up to ensure it. In a well-functioning system, a criminal court is structured so as to stand in an impartial posture vis-à-vis all of those over whom it has jurisdiction and thus to channel the condemnation of the whole without being undermined by the wrongdoing, complicity, or contrary expressions of any of the constituent members. Criminal courts are, in that sense, designed to be able to adopt a position of unique standing vis-à-vis the wrongdoer. Individuals’ standing to blame can be undermined by their own actions, commitments, or relations with the perpetrator or the wrong.26 This is true even of victims, whose special (and typically elevated) standing to blame their perpetrators is shaped by factors specific to the individuals involved and their relationships prior to and after the wrong.27 Although those particulars often give the victim a particularly strong basis for standing, they can work the other way. Thus, a victim may lack standing for having provoked the wrong or for having perpetrated similar wrongs in the past.28 A system of criminal justice can avoid such threats to standing by disavowing credibly the wrongs of any individual members of the collective for which it speaks. That disavowal is achieved through the equal application of the criminal law. A system of criminal justice that deviates from that standard can lose its standing to condemn. The complicity of a domestic system of criminal justice in wrongs graver than those it prohibits or the failure of that system to adhere to basic standards of equality before the law might be thought to eviscerate the condemnatory power of criminal 25  cf Buchanan and Keohane, ‘Legitimacy’ (n 9) 422–24. 26  Scanlon, Moral Dimensions (n 21) 175–79. See also ibid 122–52. 28  Cohen, ‘Casting the First Stone’ (n 21) 119, 127–28.

27  ibid 136–38.

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136   Tom Dannenbaum judgments in such societies. A criminal justice system upholding apartheid would surely fall into such a category.29 This does not necessarily mean that criminal law has no authority at all in such conditions. Minimalist Hobbesian reasons may warrant upholding punishment for core non-political crimes, even when the system’s injustices are ­sufficiently grave to warrant resistance. However, a criminal justice system of that sort cannot be defended as the vehicle for moral expression through punishment. The concept of condemnation as a form of non-acquiescence may help to illuminate this point. Systematic acquiescence in wrongdoing of the same or worse kind when committed by persons of a race or class other than that of the accused would preclude the credibility of courts in expressing non-acquiescence in the cases that are punished. If such punishment expresses anything, it is discrimination in favour of those shielded from prosecution, not genuine condemnation and disavowal of the wrongs done.

III.  The Legitimacy Problem in International Criminal Justice In light of the expressive function of international criminal punishment (and the cor­re­spond­ing weakness of alternative theories of punishment in that realm), the question of standing is particularly pointed at the international level. This is a problem for the ICC. When the Court acts pursuant to Security Council referrals, it condemns a category of persons equivalent in all morally relevant respects to officials of non-party permanent members acting outside state party territory.30 And yet, the structure of the Court’s authority is such that it is bound to acquiesce in equivalent wrongs when perpetrated by members of the latter group. That structured acquiescence arises from two facts about those states. Each has veto power over Council referrals to the Court and each has expressed its rejection of the Court’s authority over its nationals or territory by declining to ratify the Rome Statute. Before elaborating that argument, it is worth emphasizing that the problem of standing is not new. Moral condemnation has always been at the heart of international crim­inal punishment.31 And the institutions applying that punishment have long been subject to critiques that go directly to their standing to issue such condemnation. 29  Garry Seltzer, ‘The Role of the South African Criminal Code in Implementing Apartheid’ (1978) 8 Georgia J of Intl & Comparative L 176. 30  The focus here is on court action in situations in which Security Council referral is the only available jurisdictional trigger, because the conditions provided in art 12(2) of the ICC Statute are in­applic­ able. In theory, of course, the Security Council could refer situations covered by art 12(2), but its role in such situations is legally inessential to ICC jurisdiction, and so is unlikely to arise. 31  ‘Opening Statement at Nuremberg by Justice Robert H Jackson, Chief Prosecutor for the United States, 21 November 1945 in Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg 14 November 1945–1 October 1948, vol II (International Military Tribunal 1947) 98, 102 (hereafter Jackson, Nuremberg Opening Statement); Luban, ‘Fairness to Rightness’ (n 18) 584.

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Legitimacy in War and Punishment   137 Perhaps most famously, Justice Radhabinod Pal issued a stinging dissent from the judgment of the International Military Tribunal for the Far East (IMTFE).32 Like the parallel International Military Tribunal at Nuremberg (IMT), the IMTFE sat in judgment only of Axis war criminals. Allegations of Allies’ war crimes were off the jurisdictional table. Defeated enemies were convicted of crimes that had never previously been defined or applied. In light of this combination of features, Pal described the IMTFE as a ‘mani­fest­ation of power’ and a ‘sham’.33 Despite providing the foundational ­precedents of inter­nation­al criminal law, the tribunals have never fully escaped the taint of ‘victor’s justice’.34 A parallel critique reappeared in the 1990s. Duško Tadić, the first defendant at the International Criminal Tribunal for the former Yugoslavia (ICTY), claimed that the Tribunal lacked authority in part because the ‘Security Council had been inconsistent in creating this Tribunal while not taking a similar step in the case of other areas of conflict in which violations of international humanitarian law may have occurred’.35 This too was a claim about standing. Underpinning it was the observation that the broader ­system from which the Tribunal derived legal authority had acquiesced repeatedly in similar crimes when perpetrated in other situations. Having failed to disavow them, its purported disavowal of his wrongs rang hollow. In response, the Appeals Chamber ruled that the facts that the Tribunal was ‘set up by a competent organ in keeping with the relevant legal procedures’ and that it operated pursuant to the dictates of ‘procedural fairness’ were sufficient to satisfy the requirements of the rule of law.36 Although responsive to other aspects of the appeal, this ignored Tadić’s more fundamental objection to the Tribunal’s moral standing to ­condemn him.37 One of the Rome Statute’s virtues was supposed to be that it would move beyond such challenges. Several features of the statute look like significant improvements in that respect. Rather than being narrowly bound to a specific situation, the ICC is a per­man­ent institution with potentially global reach. Within the Court’s ordinary territorial and personal jurisdictional limits, the prosecutor can initiate investigations without needing the authorization of any particular state or set of states. Referral by any state party or

32  ‘Judgment of the Honorable Mr Justice Pal, Member from India’ in Neil Boister and Robert Cryer (eds), Documents on The Tokyo International Military Tribunal (Oxford University Press 2008) 809 (hereafter Pal, Tokyo Dissent). 33  ibid 826–27. 34  William A Schabas, ‘Victor’s Justice’ (2010) 43 John Marshall L Rev 535, 536 (hereafter Schabas, ‘Victor’s Justice’). 35  Prosecutor v. Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1-AR72, (2 October 1995) para 27 (ICTY, Appeals Chamber) (hereafter Prosecutor v Tadić (Decision on Jurisdiction)). 36  ibid paras 42, 45–46. 37  Sarah M H Nouwen, ‘Legal Equality on Trial’ (2012) 43 Netherlands YB of Intl L 151 (hereafter Nouwen, ‘Legal Equality on Trial’) (arguing that the Tribunal avoided this issue by shifting the focus from its creation to the application of the law).

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138   Tom Dannenbaum approval by the Pre-Trial Chamber is sufficient.38 Within that realm, there is no institutionally pre-determined acquiescence. Any perpetrator who is a national of a state party or who committed her crime on a state party’s territory is a viable target for investigation, without arbitrary exclusion.39 Had it been endowed exclusively with these forms of jurisdiction, the ICC would have operated from something like the normative posture of a regional court.40 That is to say, an ICC so defined would have stood as the voice of a particular community—the community of states parties and their populations—channeling their condemnation of a particular class of wrongs identified by that community for their gravity or trans­ nation­al implications. The only limits on the reach of that condemnation would have been the ordinary limits of such a community—those of nationality and territory. These limits do not undermine standing internally. First, limiting condemnation to members of the collective community (state party nationals) and those who act on community territory is consistent with an approach on which condemnation is only imperative as a matter of coherent moral expression in response to wrongdoing in which the community has a certain kind of direct interest. Refraining from condemning wrong­doing outside those bounds is rooted not in acquiescence in that wrongdoing, but in a recognition that the community’s values are not assaulted directly and that other actors are therefore better placed to issue that disavowal. Second, a court’s standing to condemn within the bounds of nationality and territory does not depend on its disavowal of wrongdoing perpetrated by non-members outside the boundaries of the community, because such a court does not claim to issue condemnation on behalf of the perpetrators of the latter wrongs. Conversely, it does claim to speak on behalf of all members of its community, as defined by territory and nationality. It is when it channels, among others, the voices of perpetrators that it has systematically failed to disavow that a court’s condemnation lacks credibility. Third, a jurisdictional regime rooted in territoriality and nationality is compatible with the view that some of the norms reflected in the Rome Statute go beyond existing customary law and are therefore only appropriate grounds for judgment vis-à-vis those who are connected by nationality or territory to states that have affirmed those rules formally. For these reasons, to refrain from issuing condemnation on a universal basis is not to acquiesce in foreign wrongdoing occurring abroad. It is instead to draw a defensible line 38  Rome Statute of the International Criminal Court, (17 July 1998) 2187 UNTS 3, Can TS 2002 No 13, arts 12(2), 14–15 (hereafter Rome Statute). 39  This is not to say that the prosecutor will not be influenced by political or other factors in selecting cases. It is only to say that the legal framework of the ICC does not itself channel any such arbitrary protections or exclusions. 40  cf the proposed International Criminal Law Section of the African Court of Justice and Human Rights. Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (27 June 2014) accessed 8 September 2018.

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Legitimacy in War and Punishment   139 between those instances of wrongdoing that are within the institution’s scope of evalu­ation and those that are better left to other communities and institutions. That is not to say that it is the only defensible line. A prominent alternative in the context of international criminal law is that of universal jurisdiction. Serious proposals were made during drafting to grant the ICC that authority.41 Plainly, an ICC so empowered would have been structured with a different posture vis-à-vis outsiders. Rather than acting as the voice of a particular community, expressing the values of that community in contexts in which it is particularly invested, it would have adopted a position more akin to that of a domestic court asserting universal jurisdiction.42 Such courts stand in something like the position of an impartial bystander, or a member of the global human community. From that position, they channel global values to express condemnation on the part of that broader community, often acting opportunistically when violators who have escaped punishment elsewhere come within their reach.43 As long as the violations would be recognized universally to be wrongful and the application of such jurisdiction is not arbitrarily limited to exclude particular actors, this too is a plausible posture from which to claim standing to condemn. Had the ICC been endowed with universal jurisdiction, it would have enjoyed standing to condemn on the same basic grounds. If anything, its credibility in channeling global values would have exceeded that of domestic courts, given its connection to, design by, and staffing with actors from a broad range of states and cultures.44 In sum, there are at least two viable lines that could have been drawn in defining the ICC’s jurisdictional reach, neither of which would have undermined its standing to condemn. One would have been universal. The other would have focused exclusively on wrongdoing by the nationals or on the territories of states parties. Although more

41  Elizabeth Wilmshurst, ‘Jurisdiction of the Court’ in Roy S Lee (ed), The International Criminal Court: The Making of the Rome Statute—Issues, Negotiations, Results (Kluwer 1999) 127, 132–39; Philippe Kirsch and John T Holmes, ‘The Rome Conference on an International Criminal Court’ (1999) 93 American J of Intl L 2, 4, 8–9. 42  On the normative grounds for universal jurisdiction, Stephen Macedo (ed), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (University of Pennsylvania Press 2003). On the customary status of universal jurisdiction for war crimes, Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law (CUP 2005) 604–07. On its prevalence, Amnesty International, Universal Jurisdiction: A Preliminary Survey of Legislation Around the World—2012 Update (Amnesty International 2012). On the lack of any significant opinio juris against such laws, Case Concerning the Arrest Warrant of 11 April 2000 (DRC v. Belgium) (Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal) [2002] ICJ Rep 3, paras 19–65. On US opposition, see John B Bellinger III and William J Haynes II, ‘A US government response to the International Committee of the Red Cross Study Customary International Humanitarian Law’, 46 ILM 514, [2007] 89 IRRC 443, 465–70. 43  Eichmann v. Attorney-General (29 May 1962), [1968] 36 Intl L Report 277 (Israel, Supreme Court). 44  For some, the standing of domestic courts in this regard may depend on the lack of an international alternative. See ibid.

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140   Tom Dannenbaum restricted, the latter posture is normatively and practically defensible, as well as being consistent with dominant jurisdictional models in domestic law. The Rome Statute, however, did not draw the jurisdictional line at either of these points. Instead, via Article 13(b), it allowed for the Security Council to create a third basis for ICC jurisdiction beyond those of nationality and territory. Pursuant to that mode, a Council referral grants the Court jurisdiction over all crimes committed in the referred situation, unfettered (per current jurisprudence) even by those immunities that would ordinarily block third states from cooperating in the arrest and surrender of certain non-party officials.45 It allows the condemnation of those not linked to the community of states parties by nationality or territory, but falls short of pure universal jurisdiction, because the Court can investigate such extra-territorial, extra-national situ­ations only if the Council so authorizes. This places extraordinary control over the scope of criminal justice in the hands of the permanent members of the Security Council. Each can block unilaterally the Court’s exercise of extra-territorial, extra-national jurisdiction. In exercising that unilateral negative control, the decision-makers in each of the non-party permanent members (the US, China, and Russia) can ensure their own protection against vulnerability to prosecution at the ICC for any crimes committed on their territory (or the territory of another non-party) and even their protection from arrest for any crimes committed on the territory of a state party for as long as they are shielded by an effective immunity.46 They can also block the Court’s jurisdiction over any of their lower-level subordinates regarding crimes perpetrated outside the territory of a state party. Thus, the inequality between states that are permanent members of the Security Council and states that are not underpins an inequality under ICC law between different groups of individuals (as well as between different clusters of states).47 The upshot is that a leader of one of the non-party permanent members could act identically in every respect to the way that Omar al-Bashir is alleged to have acted and yet would hold veto power over her own and her subordinates’ vulnerability to prosecution at the ICC. The mechanism that rendered members of the Sudanese or Libyan regimes vulnerable to prosecution is the very mechanism that empowers American, Chinese, and Russian leaders to protect themselves and their officials from liability at the ICC, as long as they do not commit a crime on the territory of a state party and lack an applicable immunity. Despite the obvious tension with fundamental principles of the rule of law, this framework has strong positivist legal credentials. The Court has unambiguous statutory authority to act pursuant to Council referrals.48 Similarly, having survived an early challenge in the Tadić litigation, the Security Council’s authority to activate systems of inter­ nation­al criminal justice pursuant to Article 41 of the UN Charter is now widely

45  See sources at n 5. 46  Rome Statute (n 38) art 98(1). 48  Rome Statute (n 38) art 13(b).

47  Nouwen, ‘Legal Equality on Trial’ (n 37).

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Legitimacy in War and Punishment   141 recognized.49 As such, the legality of the Council-referral system at the ICC is relatively uncontroversial.50 Its moral legitimacy is more vulnerable. Comparing the ICC with earlier tribunals can illuminate this point. To be clear, in light of the relatively strong grounds for standing in nationality and territorial jurisdiction cases, the Court is generally less plagued by moral standing problems than were its predecessor tribunals. However, in the specific context of Council-referred situations, the ICC arguably suffers a greater deficit of moral standing than did those earlier tribunals. Paradoxically, this is partly because of its more straightforwardly legitimate exercise of nationality and territorial jurisdiction. Consider first the ad hoc tribunals. The starting point for an argument defending the ICTY from Tadić’s challenge would be to emphasize that ad hoc tribunals presume themselves to be extraordinary responses to extraordinary situations. From that perspective, their singularity and rarity is a feature, not a bug; they focus on specific situ­ ations because those situations are deemed extraordinarily in need of an institution of criminal justice. At the same time, a central claim of any such defence must be that situations of similarly extraordinary character, equally in need of external judicial scrutiny will also be addressed through a tailored international response, without arbitrary exclusion. Robert Jackson articulated this point at Nuremberg, asserting, ‘while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment’.51 Of course, it is difficult to imagine that a permanent member of the Security Council would allow the creation of an ad hoc tribunal for crimes committed by its leaders or other agents. However, this is a political prediction about state action in a hypothetical future situation, based on factors outside the processes of international criminal justice. The tribunal’s legal framework does not itself indicate that likelihood one way or the other. As such, a defence of an ad hoc tribunal’s standing might emphasize that in its own concrete and present acts of moral expression through punishment, such a tribunal can act credibly from the aspirational premise that the international community will live up 49  Prosecutor v Tadić (Decision on Jurisdiction) (n 35) paras 27–36; Erika De Wet, The Chapter VII Powers of the United Nations Security Council (Hart 2004) 338–56; Nouwen, ‘Legal Equality on Trial’ (n 37) (arguing that the basis for ICC jurisdiction here is the same as that underpinning the ad hoc tribunals). But see Dov Jacobs, ‘The Frog That Wanted to Be an Ox’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (OUP 2015) 281 (advocating a minority position that the Security Council referrals to the ICC are more problematic than are resolutions creating ad hoc tribunals at 290, 295, 298). 50  Of course, the fact that the moral legitimacy deficit asserted here implicates a rule of law deficit raises the possibility of a deeper form of legality challenge. I thank Frédéric Mégret for emphasizing this in comments on an earlier draft. 51  Jackson, Nuremberg Opening Statement (n 31) 152. See also Telford Taylor, ‘The Meaning of the Nuremberg Trials’ (address delivered in French, Palais de Justice, Paris, 25 April 1947 at 12 accessed 8 September 2018.

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142   Tom Dannenbaum to the standards expressed through its creation. It can operate, in other words, on the presumption that other tribunals will be created when the facts demand it. This optimistic presumption would be most credible for tribunals created at what might appear to be transformative moments, in which the political conditions that precluded criminal accountability in the past seem to be changing. This was arguably the case at Nuremberg (with the dawn of the United Nations) and again with the tribunals for Rwanda and Yugoslavia (shortly after the end of the Cold War). A second feature of such tribunals can help to bolster the viability of that aspirational premise—namely, the extension of their jurisdiction to all persons within their limited geographic, temporal, and material reach, without arbitrary exclusion.52 For example, the ICTY heard cases against members of all local parties to the conflicts arising from the breakdown of Yugoslavia and the prosecutor determined (correctly) that the Tribunal would have been able to assert jurisdiction over NATO actors too.53 The relevance of this second feature is in informing and strengthening the presumption underlying the first. Equality before the law within the situation over which the tribunal exercises jurisdiction bolsters (although clearly not definitively) the presumption that the tribunal can be seen as part of a developing framework of inter­nation­al criminal justice that does not systematically shield certain actors on morally arbitrary grounds. This feature of the defence of ad hoc tribunals’ standing does not extend easily to the International Military Tribunals at Nuremberg and Tokyo, given their explicit restriction to cases involving ‘European Axis’ and ‘Far Eastern’ war criminals, respectively.54 The best that can be said of those tribunals may be that the crimes of those prosecuted far exceeded the crimes of those shielded, offering a gravity basis for one-sidedness.55 Even if defensible on those terms (itself a dubious claim), the internal imbalance would certainly not augment the Jacksonian presumption that analogous tribunals would be created in analogous situations in the future. The claim of internal impartiality is more plausibly available to the ICTY and ICTR, although this, too, has been complicated by skepticism regarding the reasons why prosecutors did not pursue alleged perpetrators from NATO and the Rwandan Patriotic Front respectively.56 52  The same cannot be said of the Special Court for Sierra Leone. Statute of the Special Court for Sierra Leone, 16 January 2002, art 1(2) accessed 8 September 2018. However, as a hybrid court, its status and the plausible limits on its jurisdiction differ in significant ways. 53  ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’ (Press Release, 2000) accessed 8 September 2018. Objecting to that position, despite the fact that it resulted in no prosecutions, see Henry Kissinger, ‘The Pitfalls of Universal Jurisdiction’ (2001) 80 Foreign Affairs 86. 54  Charter of the International Military Tribunal, 8 August 1945, 82 UNTS 279, arts 1, 6; Charter of the International Tribunal for the Far East, 19 January 1946, 1589 TIAS 21, arts 1, 5. 55  Schabas, ‘Victor’s Justice’ (n 34) 536 (discussing both sides of that debate). See e.g., contra Pal, Tokyo Dissent (n 32) 1091 (questioning the notion that Allied crimes were less grave). There is also, of course, the problem of the Tokyo Tribunal’s acquiescence in the crimes of Emperor Hirohito. 56 See e.g., Letter from Philip Roth, Human Rights Watch, to ICTR Chief Prosecutor Hassan  Jallow in Response to His Letter on the Prosecution of RPF Crimes (14 August 2009)

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Legitimacy in War and Punishment   143 Ultimately, a defence of the ad hoc tribunals’ moral legitimacy along these lines is necessarily limited and contingent. The less credible the aspirational premise regarding future tribunals and the less credible non-discriminatory explanations of prosecutorial gaps, the less plausible the tribunal’s claim to standing. It may even be that the le­git­im­acy of such tribunals suffers retrospectively if the optimistic premise proves to be wildly erroneous. Thus, Security Council cooperation in the creation of the Special Court for Sierra Leone would redound to the benefit of the earlier tribunals, but its inaction on atrocities perpetrated in North Korea, Myanmar, Yemen, or Syria (to name only a few) might be thought to harm their standing. That said, assuming that this limited defence holds for ad hoc tribunals, one might think that it would be equally applicable to the ICC in Council-referred situations. After all, in a formal sense, Russia, the US, and China have been equally silent at moments of ad hoc tribunal creation and at moments of ICC referral about their willingness to allow similar Security Council action in future equivalent situations involving their (or their allies’) territories or nationals.57 In theory, then, it is equally possible in either case that these states would allow the future creation of such a tribunal or referral of such a situ­ation; if the aspirational presumption is available to the ad hoc tribunals, it must also be available in defence of the ICC. However, the argument does not transfer so simply. Silence cannot be interpreted in isolation. Understanding what it means requires juxtaposing it to the available alternative modes of expression. Whereas permanent member silence regarding future situ­ations in the context of tribunal creation is ambiguous, silence in the context of ICC referral is more pointed. In the context of an ad hoc tribunal, permanent members’ willingness vel non to accept the authority of analogous future institutions finds no formal expression one way or the other. Any given permanent member involved in the creation of an ad hoc tribunal may intend genuinely to subject its nationals to analogous future institutions where appropriate, or it may have no intention of the sort. By nature, such tribunals are detached from any instrument through which permanent members might make a firm and binding commitment clarifying the matter. At most, states can make hortatory Jacksonian statements of intent.58 In the resulting ambiguity, the best that can be said of such states’ posture is that the aspirational premise described above may be viable, at least in transformative moments of international relations. The ICC provides a very different context. ICC situations occur within a standing institution in which the Security Council typically plays no role. The overwhelming majority of situations come to the Court via states’ long-term treaty commitments.59 accessed 8 September 2018. 57  The separate issues of art 98 agreements and carve-outs within Security Council referrals are addressed later in this part. 58  Jackson, Nuremberg Opening Statement (n 31). 59  Of the 12 situations that had been opened for investigation by the prosecutor at the time of writing, only two (Darfur and Libya) were opened pursuant to Security Council referral. Nine situations are

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144   Tom Dannenbaum This is possible, because, pursuant to Articles 12, 13(a), and 13(c) of the statute, the Court can act with respect to the nationals or territories of states parties without needing Council approval. That context allows states (including permanent members of the Security Council) to express a position vis-à-vis their own long-term relationships with that institution and its system of criminal justice that is simply unavailable in the ad hoc tribunal context. The UK and France have seized that opportunity. By ratifying the statute, they have effectively foresworn the veto as a tool of self-protection at the ICC. Were they the only veto-wielding states, the Court’s standing in Council-referred situations would be far stronger than that of any of the ad hoc tribunals. However, they are not the only permanent members. Moreover, their ratification provides the alternative against which the non-party permanent members’ silence must be interpreted. Specifically, that ratification defines the silence of each non-party per­man­ent member in this context as the eschewal of an opportunity to commit to allowing Court scrutiny of crimes by its nationals or on its territory. This is a fundamentally different message from that conveyed at the creation of an ad hoc tribunal, where silence entails no such refusal. Significantly, the non-permanent members’ eschewal of commitment occurs in a context in which those very states express both comfort with the scope of the Court’s material jurisdiction, as applied to action by non-party nationals on non-party territory, and confidence in the impartiality and independence of the prosecutors and judges regarding case selection, case management, and adjudication. These, in any event, are the only defensible implications of their decision to support, or at least to allow, referral of the situation at hand. In light of this combination of factors, the overwhelming presumption must be that non-party permanent members will use the veto to protect (at least some of) their nationals and allies’ nationals from ICC scrutiny. Given the perennial availability of ratification, overcoming that presumption would require a change in the legal relationship, whether through Article 12(3) declaration, Security Council referral, or ratification itself. Perhaps a similar result could be achieved through committing publicly not to exercise the veto to block an ICC referral of a mass atrocity situation.60 However, in a context of the state’s non-ratification, unless such a commitment had some teeth, it would be of dubious credibility. Certainly, it is hard to imagine a state being willing genu­ine­ly to foreswear the veto in such situations, and yet refusing to ratify the satute. In any event, no such commitment has been made. currently in the preliminary examination stage and the prosecutor has closed preliminary examinations in five further situations, without opening an investigation; none of these were referred by the Council. 60  Proposing a general commitment not to veto in response to situations of mass atrocity, see France Diplomatie, ‘Why France wishes to regulate use of the veto in the United Nations Security Council’ accessed 9 September 2018. See also Accountability, Coherence and Transparency Group, Code of Conduct Regarding Security Council Action Against Genocide, Crimes Against Humanity and War Crimes, UNGAOR, 70th Sess, UN Doc A/70/621–S/2015/978, (2015).

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Legitimacy in War and Punishment   145 On the contrary, the non-party permanent members have exacerbated the impression that they would use the veto as a shield. Most obviously, the Council has tried to protect ‘nationals, current or former officials or personnel’ of outside non-party states from the Court’s reach in its resolutions referring the situations in Darfur and Libya.61 The legal effect of these carve-outs has yet to be tested, but the US has been explicit in stating their purpose to be shielding its personnel from ICC scrutiny.62 Indeed, the US has gone further in rejecting ICC authority by agreeing a slew of bilateral agreements to preclude the arrest and transfer to The Hague of US nationals, and passing legislation authorizing the use of force to retrieve any American detained to that end or already in ICC custody.63 These specific signals confirm the more fundamental message expressed by silence in the form of non-ratification. The implication of that basic communication is not simply that an analogue of the arrest warrant issued for Omar al-Bashir is politically inconceivable for the leaders or officials of the US, Russia, or China, as might be thought to have been the case at the creation of the ad hoc tribunals. More significantly, the silence of those states, framed and given meaning by the legal apparatus of the Court itself, expresses their resistance to the Court’s authority over their nationals. Pursuant to the ICC’s statutory framework, and the role it provides for the Security Council, that in turn entails a posture of acquiescence on the part of the Court in any crimes that may be committed by nationals of those states on non-party territory. Unlike distinctions rooted in state party nationality or territory, the distinction between defendants in Council-referred situations and persons shielded from such scrutiny by the veto is not rooted in a normatively relevant difference. As a result, an ICC structured to acquiesce in criminal wrongdoing by those shielded by the veto cannot credibly disavow such wrongdoing when perpetrated by those brought within its reach by Council referral. Tainted by the former acquiescence, it lacks standing to condemn the latter wrongdoing. Acting in such contexts, it expresses discrimination, rather than genuine disavowal. None of this is to say that the ICC itself is at fault in any of this. The Court is a product, not the source of the statute. Moreover, pursuant to the statute, the Court’s capacity for action is determined in significant part by outside actors (through ratification decisions, referral decisions, and veto authority). Fault, however, is the wrong frame of analysis. What matters is institutional standing. There, the Court’s constitutive framework and the actors empowered in that framework are dispositive.

61  UNSC Res 1593, UNSCOR, 2005, 5158th Mtg, UN Doc S/RES/1593, (31 March 2005) para 6; UNSC Res 1970, UNSCOR, 2011, 6491st Mtg, UN Doc S/RES/1970, (26 February 2011) para 6. 62  Questioning the legality of the carve-outs, see e.g., Robert Cryer, ‘Sudan, Resolution 1593, and International Criminal Justice’ (2006) 19 Leiden J of Intl L 195, 208–22. The US ambassador to the UN stated publicly and explicitly that the provision’s value was in shielding US troops. Göran Sluiter, ‘Obtaining Cooperation from Sudan’ (2008) 6(5) J of Intl Crim Justice 871, 879. 63  ‘Countries that have Signed Article 98 Agreements with the U.S.’ (Georgetown Law Library) accessed 9 September 2018; American ServiceMembers’ Protection Act, Pub L No 107–206, 116 Stat 820 (2002).

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146   Tom Dannenbaum Nor does this excuse perpetrators in Council-referred situations. Were any of Omar al-Bashir, Ahmad Harun, Saif Gaddafi, or Mahmoud al-Werfalli to be convicted in The Hague, his guilt would not be washed away by the Court’s lack of standing. On the contrary, to invoke the concept of standing is to assert that condemnation may be inappropriate despite the target’s culpability for grave wrongdoing. If the evidence vindicates the charges, the individuals in question would be blameworthy and deserving of punishment from the legal point of view. The argument here only calls into question whether the ICC as currently constituted is normatively competent to deliver the conviction. Indeed, it is partly because those guilty of international crimes warrant condemnation from the international legal point of view that the ICC’s lack of standing makes it the wrong institution to punish them. Although legally competent to impose such punishment, it cannot do so in a way that conveys the correct moral expression. Undermined in this way, the Court lacks the very thing that makes it a valuable piece of the broader framework of international law. In such situations, it acts lawfully, but without legitimacy.

IV.  Legitimate Illegality and Legal Illegitimacy The notion that the ICC’s exercise of authority in Council-referred cases is legal but il­legit­im­ate flips on its head the relationship between law and legitimacy articulated by the Independent International Commission on Kosovo (IICK) in the context of the 1999 NATO intervention in Kosovo—an intervention that it deemed ‘illegal but legitimate’.64 That assessment sought to thread the needle between two judgments. As a matter of positive law, the Commission determined that there was insufficient state practice or agreement to justify finding a third exception to the UN Charter prohibition of the use of force, other than self-defence and Security Council authorization.65 On the other hand, there was a sense that fundamental principles of humanity preclude standing by while atrocity is visited on those who cannot defend themselves.66 From this perspective, the condemnation of those who use force to prevent atrocity would have been morally backwards and could even have undermined the normative authority of international law.67 A range of authorities have endorsed something like this awkward position of le­git­im­ate illegality as not just an accurate statement of positive law, but a desirable equi­lib­rium.68 The worry from that point of view is that muddying the jus ad bellum 64  IICK Report (n 10) 4. See also ibid ch 6. 65  ibid 166–76. 66  ibid 185–86. 67 ibid. 68  See e.g., Thomas M Franck, Recourse to Force: State Action Against Threats and Armed Attacks (CUP 2002) 166–89 (hereafter Franck, Recourse to Force); Oscar Schachter, International Law in Theory and Practice (M. Nijhoff 1991) 126 (hereafter Schachter). Several of the states that intervened in Kosovo

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Legitimacy in War and Punishment   147 with a third exception to the Article 2(4) prohibition would open the door to actors seeking to exploit ambiguities in that exception and wage wars that either fail to serve a humanitarian imperative, or that use force in a manner disproportionate to such an imperative.69 For its advocates, the ‘illegal but legitimate’ concept aspires to maintain the clarity of the legal line, while mitigating the condemnation of those who use force illegally, but in the service of humanity.70 Closely related to this idea is the notion that the international community has a ‘responsibility’ to use force to prevent atrocity when the host state has failed to exercise its primary responsibility to that end. This idea was first articulated by the Independent Commission on Intervention and State Sovereignty (ICISS) in its own post-Kosovo reflections.71 In the ICISS’s assessment, that responsibility to use force is held most clearly and immediately by the Security Council, acting through Chapter VII of the UN Charter.72 More controversially, and somewhat in line with the IICK, the ICISS ­reasoned that others, such as the General Assembly, and possibly even an ‘ad hoc coalition’ or ‘individual states’, might take up the mantle when the Council fails to act.73 In that latter context, the action would be illegal, but the ‘real question’, the ICISS reasoned, would be ‘where lies the most harm: in the damage to international order if the Security Council is bypassed or in the damage to that order if human beings are slaughtered while the Security Council stands by’.74 Two features of the global reaction to the ICISS report are worthy of note for the purposes of the argument here. First, although several features of the multifaceted responsibility to protect have real legal foundations, the notion of an international responsibility to use force has not yet hardened into a legal obligation.75 Second, broad state and inter­nation­a l organization endorsement of the responsibility to protect has been premised on a narrower understanding than that of the ICISS regarding the responsibility claimed moral justification, while insisting that the intervention was not a legal precedent. On the issue of precedent, see Jane Stromseth, ‘Rethinking Humanitarian Intervention’ in J L Holzgrefe and Robert O Keohane (eds), Humanitarian Intervention (CUP 2003) 232, 239. On the issue of moral imperative, see Daniel Levy and Natan Sznaider, The Holocaust and Memory in the Global Age (Temple UP 2006) 166; UNGAOR, 54th Sess, 14th Plen Mtg, UN Doc A/54/PV.14 (25 September 1999); ‘NATO Attack on Yugoslavia Begins’ (CNN, 24 March 1999) accessed 9 September 2018. 69  Dino Kritsiotis, ‘Reappraising Policy Objections to Humanitarian Intervention’ (1998) 19(4) Michigan J of Intl L 1005, 1020; W Michael Reisman, ‘Unilateral Action and the Transformations of the World Constitutive Process’ (2000) 11 European J of Intl L 3; Tom Dannenbaum, ‘Why Have We Criminalized Aggressive War?’ (2017) 126(5) Yale L J 1242, 1295–301. 70  Questioning the viability of such a posture, see Anthea Roberts, ‘Legality vs Legitimacy’ in Philip Alston and Euan Macdonald (eds), Human Rights, Intervention, and the Use of Force (OUP 2008) 179 (hereafter Roberts, ‘Legality vs Legitimacy’). 71  On the use of force, see International Commission on Intervention and State Sovereignty, The Responsibility to Protect (International Development Research Center (Canada) 2001) paras 6.13–6.28 (hereafter ICISS Report). 72  ibid ch 6. 73  ibid paras 6.28–6.40. 74  ibid para 6.37. 75  On the legal dimensions: Monica Hakimi, ‘Toward a Legal Theory on the Responsibility to Protect’ (2014) 39 Yale J of Intl L 247.

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148   Tom Dannenbaum of the international community to use force. Specifically, that responsibility has been recognized only with respect to force exercised via the Security Council.76 One way of understanding these two features of the international reaction to the responsibility to protect is as follows. When the Security Council fails to authorize the use of force in response to an atrocity, it acts within the scope of its legal prerogative. It has no legal obligation to do otherwise. The Council’s ‘responsibility to protect’ does not affect this, because it lacks legal force. At the same time, a Security Council that declines to authorize military action in that context fails to discharge one of its core (and widely recognized) normative responsibilities. As such, through the failure to authorize, the Council undermines its moral legitimacy as the body vested with exclusive authority over the use of force in this context. It acts legally, but without legitimacy. An assessment along those lines is implicit in the ICISS assessment that Security Council inaction would ‘damage’ the international order and could have ‘enduringly serious consequences for the stature and credibility of the UN itself ’.77 At first glance, this common (although far from universal) perspective on humanitarian intervention might appear to be in deep tension with the arguments above on ICC legitimacy. The former position holds that Security Council inaction impugns its le­git­im­acy in the context of the use of force, even though such inaction is within its legal discretion. Indeed, it may even be that outside actors gain legitimacy by acting as the Council should have, despite acting illegally and possibly with even less procedural legitimacy.78 In contrast, the argument on ICC legitimacy holds that the procedural inequities inherent in the Security Council are such that its referral of an atrocity situ­ation to the Court impugns the legitimacy of the latter’s actions pursuant to that referral, even though both institutions act clearly within their respective scopes of legal authority. In reflecting upon this apparent inconsistency in the way law and legitimacy interact in these different forms of Security Council response to atrocity, one might simply argue that one (or perhaps both) of these assessments is wrong. An alternative and more compelling explanation is that the difference in the two assessments is the product of appropriately different evaluative standards for determining the legitimacy of criminal punishment and force. On this view, legitimacy imperatives may demand both that the Security Council authorizes force in response to atrocity and that it refrains from referring the same situation to the ICC. The key reason for the divergent legitimacy thresholds for international criminal punishment and the use of force is that the two kinds of action perform normatively 76  2005 World Summit Outcome, UN GA Res 60/1, UNGAOR, 60th Sess, 8th Plen Mtg, UN Doc A/ RES/60/1, (16 September 2005) paras 138–39; UNSC Res 1674, UNSCOR, 5430th Mtg, UN Doc S/ RES/1674, (28 April 2006) para 4; Secretary General, Implementing the Responsibility to Protect, UNGAOR, 63rd Sess, UN Doc A/63/677, (12 January 2009) at 8–9. 77  ICISS Report (n 71) paras 6.37, 6.40. 78  One situation in which an outside actor might be thought to have greater procedural legitimacy than the Security Council in this respect would be the case of humanitarian intervention authorized by the African Union pursuant to art 4(h). Constitutive Act of the African Union, 11 July 2000, 2158 UNTS 3, art 4(h).

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Legitimacy in War and Punishment   149 distinct functions. One performs a police task—stopping wrongful harm. The other performs a task of morality or justice—condemning wrongdoing. The legitimacy of institutions operating in either domain turns in part on whether they are structured appropriately to discharge those functions, and whether they do in fact perform those functions well. It should be no surprise that institutions structured for one task may prove inapt for the other. The function of using force in a humanitarian intervention is to stop and prevent gravely illegal abuses of human beings. It is important to limit legally which actors can engage in that prevention so as to ensure that action is taken only when narrowly ­tailored and likely to actually fulfil that protective objective. But on either side of that specific assessment are consequences. What matters is stopping the wrongful harm without causing greater harm. The procedures in place are valuable and legitimacyenhancing primarily insofar as they elevate the likelihood of certain outcomes. The legitimacy of action without Security Council authorization is widely thought to be plausible (if at all) only when the Council has failed to act and the situation on the ground shocks the conscience.79 The Security Council provides an imperfect but useful procedural check in part because the divergent interests and political postures of the permanent members make them unlikely to assent unanimously to pretextual interventions, in part because the acquiescence or support of major powers enhances the intervention’s prospects of success (and is unlikely if an intervention is destined to fail), and in part because of the value to long-term global security of upholding the process to which states have agreed.80 Seen in this way, the value of the Security Council’s role in this domain is in optimizing for a particular result—the prevention of atrocity without the encouragement of unjustified war. Where the system fails in that endeavour, its legitimacy and the le­git­im­ acy of its institutions suffer. When the harm is sufficiently grave, it may be legitimate, measured against the law’s protective function, for other actors to violate the law so as genuinely to prevent atrocity. To the extent that argument is viable, legitimacy and legality separate because the law or its institutions frustrate its core function. The typical insistence on multilateralism in even that scenario is rooted in the hope that requiring 79  See e.g., ICISS Report (n 71) para 6.28; Robin Cook, Secretary of State for Foreign & Commonwealth Affairs, ‘Speech to the American Bar Association Meeting in London’ (19 July 2000) in Geoffrey Marston (ed), ‘United Kingdom Materials on International Law 2000’ (2001) 71 British YB of Intl L 646 (hereafter Cook, ‘Speech to the ABA’); UK Prime Minister’s Office, ‘Chemical Weapon Use by Syrian Regime: UK Government Legal Position’ (Policy Paper, 29 August 2013) accessed 9 September 2018. 80  See e.g., Yoram Dinstein, War, Aggression and Self-Defence (5th edn, CUP 2012) 74; Franck, Recourse to Force (n 68) 175–78; Allen S Weiner, ‘The Use of Force and Contemporary Security Threats: Old Medicine for New Ills?’ (2010) 59(2) Stanford L Rev 415, 428 (2006); Christine Gray, International Law and the Use of Force (3rd edn, OUP 2008) 52; Schachter (n 68) 126; Simon Chesterman, ‘Hard Cases Make Bad Law’ in Anthony F Lang Jr (ed), Just Intervention (Georgetown UP 2003) 46, 50. But see Ryan Goodman, ‘Humanitarian Intervention and Pretexts for War’ (2006) 100 American J of Intl L 107, 107, 110–11, 126–27 (arguing that claiming a humanitarian imperative is more likely to pressure leaders to limit their uses of force than would claiming self-defence).

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150   Tom Dannenbaum some form of widespread assent can provide a surrogate mechanism for checking the unjustified use of force.81 In the ways elaborated above, the normative function of the international criminal justice is completely different. The test is not whether the institution can best get done what needs to be done. In the context of condemnation, equally important is how the function is performed. For punishment to carry the moral message of disavowal, the institution must have standing. Its systematic acquiescence in the analogous wrong­ doing by other actors precludes that. Ultimately, legitimacy in both cases is driven by fidelity to the normative function of the practice. Fidelity to the function of prevention is measured in whether the harm is prevented; procedure is relevant only insofar as it facilitates that without creating other risks and dangers. Fidelity to the function of condemnation is measured not only by whether the persons punished warrant that condemnation, but also whether the entity charged with providing it has the standing to do so.

V.  The Path Forward The separation of law and legitimacy creates instability. Action that is lawful but il­legit­ im­ate may meet resistance and fail to fulfil its core legal function. Conversely, action that is affirmed as legitimate, despite being illegal, may become normalized and legalized over time.82 Both of these are possibilities in the context of Security Council responses to atrocity. On the issue of using force to stop atrocity, the less willing the Security Council is to act, the more it will lose legitimacy, and the more the legal requirement for its imprimatur in that realm is likely to erode.83 Conversely, the more it responds appropriately to situations demanding a forceful response, the better the Council can perform its function of checking pretextual, unnecessary, or disproportionate use of force. In the realm of criminal justice, the story is quite different. Unless permanent members discard the veto altogether in this context, an uptick in Security Council referrals to the ICC would likely exacerbate, rather than remedy the divide between legality and legitimacy. Short of Rome Statute ratification by the current non-party permanent members, two options for strengthening the Court’s legitimacy in this respect stand out. First, the Court could move to a universal jurisdiction model, as proposed during Rome Statute drafting.84 Removing the requirement for a Security Council referral would eliminate immediately the Court’s structured and systematic acquiescence in the wrongs of 81  ICISS Report (n 71) paras 6.29–6.40; Cook, ‘Speech to the ABA’ (n 79) 647. See also Allen Buchanan and Robert O Keohane, ‘Precommitment Regimes for Intervention’ (2011) 25 Ethics and Intl Affairs 41, 52–55. 82  Roberts, ‘Legality vs Legitimacy’ (n 70). 83 ibid. 84  See n 41.

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Legitimacy in War and Punishment   151 non-party permanent members, bolstering significantly its standing to condemn wrongs perpetrated by nationals of other non-parties in non-party territory. This is not to say the ICC would suddenly escape all claims of bias or discrimination.85 However, that discrimination would no longer be baked into the Court’s legal framework. This would at least provide the Court with the potential to condemn with the moral authority necessary to do so effectively. Realistically, however, such a reform is unlikely to gain political traction. In an era of backlash against the perceived overreach of international institutions (manifest, inter alia, in recent withdrawals from the Rome Statute), it is difficult to imagine states agreeing to endow the Court with such dramatically expanded jurisdictional reach. They declined to do precisely that during the more auspicious period in which the statute was first negotiated. The alternative route to a more legitimate ICC would be for the Court to revert to a nationality and territorial jurisdiction model. Short of an unlikely statutory amendment eliminating the Security Council referral trigger, this could be achieved in two ways. First, in direct contrast to the path to legitimacy in responding to atrocity with appropriate force, the Council could step back from referring atrocity situations to the Court. Second, and more radically, the prosecutor could use her discretion to refrain from opening investigations or pursuing charges in Council-referred situations on the grounds that pursuing those avenues would not be in the ‘interests of justice’.86 Unlike reasons not to proceed rooted in jurisdiction or admissibility, a prosecutorial decision along these lines would invite oversight by the Pre-Trial Chamber.87 The latter ought to uphold such a decision. Requiring the prosecutor to proceed would entail setting the stage for the Court to act despite an inability to fulfil its normative function and credibly disavow the crimes before it. That ought to be understood as clearly contrary to the interests of justice. One might object at this point that Security Council referral is often the only route to ICC jurisdiction over some of the world’s gravest abuses and thus the only way to combat impunity in those severe cases. Forswearing the system by which the prosecutor has pursued the likes of al-Bashir might be deemed a significant setback for international justice, notwithstanding that system’s imperfections.88 In other words, to advocate that the Council, prosecutor, or Court hold back in such circumstances may seem naively perfectionist. This objection is misleading in several respects. It ignores alternative paths to justice. It presumes that punishment serves valuable pragmatic ends at the international level. And it discounts the damage that such referrals do to the core function of international criminal justice. 85  The Court has long been accused of anti-African bias. Max du Plessis, Tiyanjana Maluwa, and Annie O’Reilly, Africa and the International Criminal Court (Chatham House Report 2013). 86  Rome Statute (n 38) arts 53(1)(c), 53(2)(c). 87  ibid arts 53(3)(b). 88  Max du Plessis, The International Criminal Court that Africa Wants (Institute For Security Studies 2010) 74.

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152   Tom Dannenbaum The first error is to presume away other paths to accountability. Among the most obvious alternatives to Council referral to the ICC in this respect are foreign domestic courts exercising universal jurisdiction, hybrid or regional criminal courts, and, in the longer run, domestic criminal courts or alternative justice mechanisms exercising territorial or active nationality jurisdiction.89 Indeed, referral to the ICC is not the only way in which the Security Council can fa­cili­tate accountability. The Council could authorize and empower investigative bodies competent to gather the information and evidence that might underpin prosecutions or justice actions in any of the fora described immediately above.90 Beyond that, once a regime transition allows for it, the Council could work with the territorial state to enable its domestic courts, to create a hybrid court, or to encourage acceptance of the ICC’s jurisdiction via Article 12(3) of the Rome Statute. Finally, through taking action under Chapter VII of the UN Charter, the Council may help both to stop the atrocities in the first place and to facilitate the conditions in which the territorial state could participate in any of these processes. Of course, many of these options presume a change in the facts on the ground. However, a decade of experience shows that ICC efficacy in Council-referred situations is no less contingent on such a change. The ICC depends on state cooperation from the first steps of preliminary evidence gathering and arrest, to more comprehensive access to evidence, witness subpoena and protection, and ultimately post-conviction detention.91 When host state hostility precludes the alternative paths identified above, Council referral to the ICC is also likely to fail. This leads to the second point in response to the pragmatist’s objection. Even if there were a context in which Council referral to the ICC could make progress towards crim­inal accountability over and above that available via other routes, this would not necessarily mean that referral would be a good idea. Sacrificing the ICC’s capacity to discharge its 89  Regionally, consider the proposed African Court of Justice and Human Rights (see n 40). On the universal jurisdiction response to the crisis in Syria, see Yuna Han, ‘Rebirth of Universal Jurisdiction?’ (Ethics & International Affairs Blog, 4 May 2017) accessed 9 September 2018. On alternative (potentially competing) modes of justice, see e.g., Sarah M H Nouwen and Wouter G Werner, ‘Monopolizing Global Justice’ (2015) 13 J of Intl Crim Justice 157. 90 The General Assembly took action of this kind regarding Syria. UNGA Res A/RES/71/248, International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, UNGA Res A/RES/71/248, UNGAOR, 71st Sess, 66th Plen Mtg, UN Doc A/RES/71/248, (21 December 2016). 91 Rome Statute (n 38) arts 86–111. On subpoena power: Prosecutor v. Ruto (Appeals Judgment on Prosecutor’s Application for Witness Summonses and Request for State Party Cooperation) ICC-01/09– 01/11–1598, (2014). In addition to the obvious failure in Darfur, consider the role of non-cooperation in the breakdown of the Kenya cases. ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr Uhuru Muigai Kenyatta’ (Press Release, 5 December 2014) accessed 9 September 2018; Prosecutor v. Kenyatta (Second decision on Prosecution’s application for a finding of non-compliance), ICC-01/09–02/11–1037, (2016).

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Legitimacy in War and Punishment   153 central normative function (moral expression) and rendering it vulnerable to legitimate claims of discrimination requires robust justification. To put it bluntly—punishment to what end? As discussed above, claims that international criminal punishment will deter are questionable given the large numbers of persons involved, the reasons to be skeptical about rational action, the low likelihood of arrest, and the greater urgency and potency of more immediate incentives.92 Even in cases in which those factors do not drown out the threat of punishment, that threat may itself prove counterproductive if it deters surrender or negotiation.93 The alternative pragmatic objective of removing and incapacitating atrocity leaders is also of questionable utility in light of the facts that (a) the feasibility of arrest is likely to mean that those leaders have already lost political sway, and (b) prosecuting them may risk fanning (rather than dousing) the flames of perceived injustice.94 In short, the notion that Council referrals serve pragmatic ends is not at all obvious. Such referrals target dubious instrumental benefits in situations in which the Court is unlikely to garner cooperation sufficient to pursue those benefits effectively and in which there is a countervailing risk of exacerbating conditions on the ground. Given both the cost to the Court’s capacity to discharge its core normative function and the reasons to be skeptical of instrumental benefits, there is a heavy burden on the pragmatist to show robust evidence of positive effects. It is a mistake to assume that greater and broader ICC activity in response to atrocities is necessarily in the interests of justice or of combating impunity. Focusing on the value of international criminal punishment can clarify when it should and should not be used, and in what form. To the extent that its value takes the form of moral expression, standing matters. Recognizing that means moving away from Security Council referrals as a mode of international criminal justice and focusing instead on two pursuits. First, taking action at the ICC in contexts in which its capacity to express moral values on behalf of the community of states parties is clear and well-grounded. And, second, pursuing alternative routes to criminal or other forms of justice, including with Security Council support, in contexts in which the ICC would lack that standing.

92  See n 14.

93  See n 14.

94  See n 17.

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Chapter 7

A fr ica a n d I n ter nationa l Cr imi na l L aw Christopher Gevers

I. Introduction The relationship between Africa and international criminal law has been the focus of much attention in recent times. However, the debate about the nature of this relationship remains largely unproductive, generally proceeding as follows. The critics allege an anti-African bias (on neo-colonial or racist grounds) on the part of the International Criminal Court (ICC) (figured to embody the project as a whole), p ­ ointing to the overwhelming number of African cases before the Court. In response, defenders argue that the majority of those cases were brought to the ICC by the African states themselves. At that point the two sides often shift into different, and incompatible, registers. Critics turn to history (of international law, or criminal law) or theory (often from outside the discipline of international law, or at least at its margins), while its defenders ascend to heady normative arguments (‘international rule of law’), or descend into thin consentbased arguments (‘African states signed up’), often calling on particular Africans for reinforcement in the process (the Prosecutor and other African ICC functionaries, or more abstractly but productively, unspecified ‘African victims’).1 Notably, these defences are generally also ‘meta-juridical’,2 but seldom admitted as such. 1  For a recent, engaging attempt to move beyond such binaries in the context of the ICC, see generally Kamari Clarke, Abel Knottnerus, and Eefje de Volder (eds), Africa and the ICC: Perceptions of Justice (CUP 2016). 2  An admittedly ‘hardly jurisprudentially elegant’ term used by Elihu Lauterpacht to describe, hardly elegantly, considerations ‘other than strictly legal considerations’. Elihu Lauterpacht, ‘The Juridical and the Meta-Juridical in International Law’ in Jerzy Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krysztof Skubiszewski (Kluwer Law International 1996) 215.

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Africa and International Criminal Law   155 This chapter aims to open up the debate about the relationship between Africa and international criminal law, both temporally and conceptually. First, it will argue that both sides of the debate generally rely on a history of this relationship that is foreshortened, one that begins in the 1990s. However, while it was only then that Africans were assigned official roles (i.e., as defendants, victims, prosecutors), and African states participated in its officially noteworthy projects and institutions (i.e., the ICTR and ICC), this chapter aims to show that Africans and ‘Africa’ have been present since the beginning of the project in 1919. Second, and in order to do so, this chapter will open up the debate conceptually, arguing that there is more to both ‘Africa’ and ‘international crim­inal law’ than its current framing suggests. There is more to ‘Africa’ than African states: before their emergence in the late 1950s there was an ‘Africa’ in the west, and it is that ‘Image of Africa’3 that for some continues to predominate today (in part because of international criminal law). Similarly, there is more to ‘international criminal law’ than the ICC: not only are there other institutions and actors that form part of the project (NGOs, intergovernmental organizations, activists, lawyers, scholars, and ‘publics’), but from its inception the project has participated in, and relied upon, political, economic, and cultural orders as well. With this in mind, the chapter begins by revisiting what for many is the project’s founding moment: the attempts by Allied Powers to establish an inter­nation­al tribunal following World War I. It returns to Versailles, 1919 to c­ onsider the untold story of two ‘Blue Books’ alleging German crimes against Africans before and during the war, one that reveals how Africa and Africans were what Toni Morrison describes as a ‘present absence’ at Versailles.4 The rest of the chapter will show how they remained so for much of international criminal law’s history: at Nuremberg, 1945, during the Cold War era, and even still in the 1990s. Moreover, this chapter will proceed to show that the conditions under which Africa and Africans were present, absented, and ­‘re-presented’ at Versailles in 1919 introduces three threads of critique of international criminal law—concerning its racial politics, its imperial entanglements and its symbolic (and affective) regime5—that weave their way, at times together at times apart, from 1919 until the present. It will end by reconsidering the debate about this relationship to suggest that, in light of this history, the question becomes not whether international criminal law (or the ICC) might be a field that operates on neo-colonial and racist lines, but whether it might have been anything else (or might yet be).

3 Chinua Achebe, ‘An Image of Africa: Racism in Conrad’s “Heart of Darkness” ’ (1977) 18(4) Massachusetts Rev 782 (hereafter Achebe, ‘Image of Africa’). 4  Toni Morrison, Playing in the Dark: Whiteness and the Literary Imagination (Harvard UP 1992) 5 (hereafter Morrison, Playing in the Dark). 5  Kamari  M.  Clarke, ‘The Rule of Law Through its Economy of Appearances: The Making of the African Warlord’ (2011) 18(1) Indiana J of Global Legal Studies 7, (Clarke, ‘Making of the African Warlord’). See further, Kamari M. Clarke, Affective Justice: The International Criminal Court and the Pan-Africanist Pushback (Duke UP 2019).

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156   Christopher Gevers

II.  Versailles, 1919: ‘resist[ing] with impunity’ After years of docile submission it is obvious that time must elapse before [the native races] . . . can realize that matters have changed, that they can look to us for protection, and that attacks upon their virtue may now be resisted, and resisted with impunity.6

A.  Re-telling Versailles, 1919 Many histories of international criminal law begin with the unsuccessful attempt to establish an international tribunal after World War I through the Treaty of Versailles.7 In the end no such tribunal was established, nevertheless these halting attempts at inter­ nation­al justice remain central to the field, both legally and historiographically. Legally, judges at Nuremberg relied on them as precedent to overcome claims of retrospective lawmaking, or worse ‘Victor’s justice’, using Versailles to show that procedurally and substantively the Tribunal was ‘the expression of International Law existing at the time of its creation’.8 Similarly, while few histories of international criminal law dwell on Versailles, it does often set in motion progress narratives: stories of struggle—of law over politics, reason over vengeance, the international over the national/local9—in which the project’s initial failings are corrected, first imperfectly at Nuremberg in 1945 and then definitively at Rome in 1998.10 Before there was ‘Nuremberg, 1945’ or ‘Rome, 1998’ however, James Morgan Read wrote a very different account of the international justice attempted at Versailles, one that was well-received at the time.11 Rather than the 1919 Commission on the 6  Union of South Africa, Administrator’s Office, Report on the Natives of South-West Africa and Their Treatment by Germany (HMSO 1918) 200 (hereafter Report on the Natives of South-West Africa). 7  See Articles 227–230, Treaty of Versailles (1919). 8  The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22, 22nd August, 1946 to 30th September, 1946 (HMSO, 1950) 444. As did the subsequent Nuremberg Military Tribunals, see Kevin J Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (OUP 2011) 124–32 (hereafter Heller, Nuremberg Military Tribunals). 9  See Gerry Simpson, Law, War and Crime: War Crimes, Trials and the Reinvention of International Law (Polity 2007) 30–53 (hereafter Simpson, Law, War and Crime). 10  See further, Christopher Gevers, ‘The “Africa Blue Books” at Versailles: World War I, Narrative and Unthinkable Histories of International Criminal Law’ in Immi Tallgren and Thomas Skouteris (eds), Encounters: International Criminal Law and its Histories (OUP, 2019). Those histories that do dwell on Versailles tend to focus on the debates within the 1919 Commission on the Responsibility of the Authors of the War, and how these debates prefigure international criminal lawyers’ later preoccupations. See Simpson, Law, War and Crime (n 9) 41. 11  James M Read, Atrocity Propaganda: 1914–1919 (Yale UP 1941) (hereafter Read, Atrocity Propaganda). Read’s book received positive reviews at the time. See Harold D Lasswell, ‘Atrocity Propaganda, 1914–1919

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Africa and International Criminal Law   157 Responsibility of the Authors of the War, Read’s account focused on the so-called ‘atrocity stories’ published by Allied Powers during the war, arguing that these made the attempts to try Germans before an international tribunal at its conclusion ‘inevitable’.12 According to Read, ‘the statesmen at Paris in 1919 were largely the prisoners of their own machinations’, as the ‘picture of the enemy . . . painted during the war’ by these atrocity stories ‘led to the overpowering demand for punishment of the war criminals’.13 Bringing these atrocity stories into the history of ‘Versailles, 1919’, and international criminal law, unsettles standard accounts of the project in a number of ways. For present purposes, they bring with them the German atrocities committed against Africans during the war, and colonial violence more generally, as these were the subject of two Blue Books published by the British government during the war. The first, the 1916 Blue Book on German Atrocities and Breaches of the Rules of War in Africa, concerned reports of atrocities committed in the Cameroons during German raids on ‘native’ villages (including ‘war crimes’, and a number of ‘crimes against humanity’ by today’s standards), as well as alleged atrocities in East Africa and German South West Africa.14 The second, the 1918 Blue Book on Report on the Natives of South-West Africa and Their Treatment by Germany, dedicated over 200 pages solely to the ‘history and treatment’ of the ‘native races’ under German domination, from the moment of colonization until the outbreak of war. The 1918 South West Africa Blue Book paid particular attention to ‘the extermination of the Hereros’ following General Lothar von Trotha’s 1904 ex­ter­min­ation order to ‘let not man, woman, or child be spared—kill them all’.15 While ‘the Light of International Criminal Law’16 is only now being shone on this genocide, the first of the 20th century, the details of it were plainly stated in 1918 in the South West Africa Blue Book. Notably, according to Read, of all the Allied Powers’ atrocity stories it was the British accounts that were most influential to the public demand for prosecutions after the war,17 and anecdotal evidence suggests that those reports concerning Africa were particularly influential in this regard.18 British atrocity stories were also central to the by James Morgan Read’ (1942) 14(4) J of Modern History 542; Charles Callan Tansill, ‘Atrocity Propaganda, 1914–1919 by James Morgan Read’ (1942) 36 American J of Intl L 364. 12  Read, Atrocity Propaganda (n 11) vii. 13 Read, Atrocity Propaganda (n 11) viii. 14  Examples of the former included the killing of civilians, extermination, mutilation, destruction of civilian property, and the use of ‘expanding bullets’; examples of the latter include persecution and ex­ter­ min­ation. See Great Britain, Colonial Office, German Atrocities and Breaches of the Rules of War in Africa (HMSO 1916) (hereafter German Atrocities). 15  Report on the Natives of South-West Africa (n 6) 5, 40, 60. 16 Klaus Bachmann, ‘Germany’s Colonial Policy in German South West Africa in the Light of International Criminal Law’ (2017) 43(2) J of Southern African Studies 331. 17 Read, Atrocity Propaganda (n 11) 187–88. 18  The same week that the first Africa Blue Book was published (in August 1916), Read notes that ‘[q]uite suddenly . . . English public opinion became receptive to the idea of forcing Germany to expiate her crimes’. ibid 243. Following the publication of the 1918 South West Africa Blue Book, the Times suggested that the ‘savage abominations’ contained in it made the ‘inhuman outrages committed in Europe seem insignificant’. Read, Atrocity Propaganda (n 11) 236 quoting The Times, 12 September 1918. In fact, Read suggests that ‘the atmosphere in 1917 and through the summer of 1918 was remarkably free of recrimination’, and it was only later in 1918 that the ‘wrath of the British people was . . . roused’ (ibid 245–6); coinciding with the publication of the second Blue Book on German South West Africa.

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158   Christopher Gevers work of the 1919 Commission on the Responsibility of the Authors of the War when it recommended ‘the establishment of a high tribunal composed of judges drawn from many nations’.19 The Commission cited ‘British Reports’ 30 times in its annexure detailing examples of ‘[o]ffences committed . . . against the Laws and Customs of War and the Laws of Humanity’.20 Moreover, the British were instrumental in the plan to establish an international tribunal (that the US opposed), and the US delegate Robert Lansing considered that ‘British insistence on an international criminal tribunal was nothing other than an attempt to please British public opinion for political gains’.21 However, while the two ‘Africa Blue Books’ were central to its creation, and its recommendation to establish an international tribunal, the Commission apparently never considered the prosecution of those committed against Africans. The Commission’s report set out in detail numerous examples of ‘outrage upon outrage’ committed by ‘Germany and her allies’,22 both in the report itself and the 30-page annexure providing a ‘Summary of Examples of Offences . . . against the Laws . . . of War and the Laws of Humanity’, but the atrocities committed against Africans detailed in the two Africa Blue Books of 1916 and 1918 were nowhere to be found.23 How and when the decision was taken to exclude German crimes against Africans from the ‘international justice’ to be dispensed at Versailles, in theory if not in the event, is not clear. It certainly was not a distinction maintained in the Blue Books or surrounding press reports during the war. In the lead-up to Versailles, there was no suggestion in official documents that the justice to be dispensed for atrocities would be circumscribed geographically or racially. In fact, the Commission on Responsibility’s mandate was unhindered geographically by the Peace Conference; it was tasked with reporting on inter alia ‘the facts as to breaches of the laws and customs of war committed by the German Empire and their Allies on land, on sea, and in the air during the present war’.24 However, when the Commission on Responsibility released its report in March 19  ‘Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties’ (1920) 14(2) American J of Intl L 95, 116 (hereafter ‘Commission on the Responsibility’). 20  Notably this annexure (Annex I) was ‘omitted for lack of space’ by the editors of the American Journal of International Law when it was reprinted in 1920. See Carnegie Endowment for International Peace, Division of International Law (ed), Violations of the Laws and Customs of War: Reports of Majority and Dissenting Reports of American and Japanese Members of the Commission of Responsibilities, Conference of Paris, 1919 (Pamphlet No. 32, Clarendon Press 1919) 28–57 (hereafter Commission on Responsibility, Annex I). See further Read, Atrocity Propaganda (n 11) 265–68. 21  Quoted in Harry M. Rhea, ‘The Commission on The Responsibility of the Authors of the War and on Enforcement of Penalties and its Contribution to International Criminal Justice after World War II’ (2014) 25 Crim L Forum 147, 161. 22  ‘Commission on the Responsibility’ (n 19) 113. 23  Notably, the report included the ‘Armenian Genocide’, citing as evidence a 1916 British Blue Blue, but no mention is made of the extermination of the Herero detailed in the 1918 ‘Africa Blue Book’. Blue Book on German South West Africa Viscount Bryce, The Treatment of Armenians in the Ottoman Empire, 1915–1916 (HMSO 1916). 24  ‘Commission on the Responsibility’ (n 19) 95 (emphasis added). The alleged atrocities listed in the report as taking place throughout the British Empire included attacks on the British mainland, ships, and a hospital abroad, as well as British and Indian prisoners of war in France, Germany, Turkey and modern-day Iraq and Syria (then ‘Turkey in Asia’). Commission on Responsibility, Annex I (n 20) 51–56.

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Africa and International Criminal Law   159 1919, it was clear that it had decided to limit the ‘international justice’ it anticipated racially: German crimes committed against black Africans were to be resisted, quite literally, ‘with impunity’.

B.  Presence, Absence, and ‘Re-presentation’ at Versailles The story of the Africa Blue Books introduces a number of the arguments pursued in this chapter. First and foremost, it demonstrates that the relationship between Africa and international criminal law did not begin in the 1990s, it began at the project’s inception a century ago (long before, tellingly, the existence of almost all modern African states). During its formative moments, Africans were present in international criminal law, however briefly, and then they were inexplicably absent, or absented, or silenced.25 Moreover, the story demonstrates how, even in their absence, Africa and Africans have been productive for international criminal law, in the same way Morrison has shown they have been in American and European literature: as ‘present absences’.26 According to Morrison, a ‘studied indifference’ led mainstream scholars of American literature to conclude that it was ‘free of, uninformed, and unshaped by the . . . presence of, first Africans and then African-Americans in the United States’; whereas, she demonstrates, despite the notable absence of African and African-American characters, this literature is nevertheless characterized by a ‘dark, abiding, signing Africanist presence’.27 This chapter will argue that a similar ‘studied indifference’, or perhaps a ‘studied ignorance’,28 masks the ‘present absence’ of Africa and Africans in international criminal law; and that, paraphrasing Morrison, ‘[t]he contemplation of this black presence is central to any understanding of [international criminal law] and should not be permitted to hover at the margins’.29 Paying attention to the conditions under which Africa and Africans were present, absented, and ‘re-presented’ in the story of the Africa Blue Books introduces, in broad terms, three further arguments made in this chapter. First, in showing how crimes committed against black Africans were present (perhaps even necessary), for the purposes of establishing the project’s (almost) first international tribunal, but absent when it comes to the justice it was to dispense, the story places ‘racial politics’30 at the project’s inception (and introduces a double-standard that is 25  Michel-Rolph Trouillot, Silencing the Past: Power and the Production of History (Beacon Press 1995) 26 (hereafter Trouillot, Silencing the Past). 26 Morrison, Playing in the Dark (n 4) 7. See also Edward W. Said, Culture and Imperialism (Knopf 1993) 73–115 (hereafter Said, Culture and Imperialism). 27 Morrison, Playing in the Dark (n 4) 5. 28  Charles Mills, The Racial Contract (Cornell UP 1997) 133 (hereafter Mills, Racial Contract). 29 Morrison, Playing in the Dark (n 4) 5. 30  In this chapter the term ‘racial politics’ is used heuristically, where (i) ‘politics’ is, per Laswell’s def­ in­ition, a question of ‘who gets what, when, how’; (ii) the goods to be distributed include something called ‘international justice’; and (iii) it is distributed based on the sociopolitical construct called ‘race’. A detailed exploration of these ‘racial politics’ are beyond the scope of this chapter. However, one avenue

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160   Christopher Gevers thoroughly contemporary). The justice anticipated at Versailles in 1919 was, for reasons so widely shared or self-evident so as to make them unnecessary to state, never intended to apply to the innumerable offences against black Africans detailed in the two Africa Blue Books. To do so was, perhaps, unthinkable for some at the time, and remains so.31 This chapter argues that these racial politics run throughout international criminal law’s history, and remain operational today: at best, in its preference for victims of a certain kind (and not others), and at worst, in its continued refusal to punish white violence against black bodies.32 This is only half the story, however, as the Africa Blue Books were not altogether absent at Versailles. The other half lies in how African victims were ‘re-presented’ in the Allied Powers’ justifications for the re-distribution of German colonial territories. Dismissing claims for self-determination, Allied Powers decided to place these ter­ri­tor­ies under the control of Mandatory Powers, in ‘the interests of the native populations’, under the ‘sacred trust of civilization’.33 When Germany objected strongly to this term of the Peace Treaty, the Allied Powers swiftly recalled the atrocities alleged in the two Africa Blue-Books, namely ‘the cruel methods of repression, the arbitrary requisition and the various formed of forced labor which resulted in the depopulation of vast expanses of territory in German East Africa and the Cameroon, not to mention the tragic fate of the Hereros in South West Africa, which is well known to all’.34 This, then, is what ‘resisting with impunity’ entailed: ‘protection’ in the form of further political and economic subordination under a re-ordered imperial settlement.35 for doing so is Charles Mills’ notion of the ‘Racial Contract’ that underpins both western moral and political thought, and the modern world made by European colonialism: ‘that set of formal or informal agreements . . . between one subset of humans, henceforth designated by (shifting) “racial” . . . criteria as “white” . . . to categorize the remaining subset of humans as “nonwhite” . . . subpersons, so that they have a subordinate civil standing in the white or white-ruled polities . . ., and the moral and juridical rules normally regulating the behavior of whites in their dealings with one another either do not apply at all in dealings with nonwhites, or apply on in a qualified form’ (emphasis added). Or, put simply: ‘When white people say “Justice”, they mean “Just us” ’: Mills, Racial Contract (n 28) 11. 31  In the same way that Trouillot has argued that the Haitian revolution was ‘unthinkable even as it happened’—and, along with black self-determination generally, remained so for much of the 20th century— as it posed such a challenge to ‘the ontological and political assumptions’ of the day that they ‘were “unthinkable” facts in the framework of western thought’ (and remain so for some still to this day). Trouillot, Silencing the Past (n 25) 73, 82, 89. See further Mills, Racial Contract (n 28) 17, 93 (on the racial contract and an ‘epistemology of ignorance’). 32  Siba N. Grovogui, ‘Come to Africa: A Hermeneutics of Race in International Theory’ (2001) 26(4) Alternatives: Global, Local, Political 425, 438–39 (hereafter Grovogui, ‘Come to Africa’) (noting the modern insistence on concealing [European] crimes in order to project moral rectitude, the rule of reason, and historical purpose). Notably, Mills argues that ‘the Racial Contract . . . explains the actual astonishing historical record of European atrocity against nonwhites, which . . . in number and horrific detail, cumulatively dwarfs all other kinds of ethnically/racially motivated massacres put together’. Mills, Racial Contract (n 28) 97. See further, Christopher Gevers, ‘Prosecuting the crime against humanity of apartheid: never, again’ (2018) African YB Intl Hum Law 25–49. 33  See Article 22, Covenant of the League of Nations, 28 April 1919. 34  Allied and Associated Powers, Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of Peace (HMSO 1919) 19 (emphasis added). 35  On the ‘Mandates System’ and its lasting effects on international law and institutions, see Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2005) ch 3.

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Africa and International Criminal Law   161 In the case of South West Africa, that protection took the form of subordination to white-settler South Africa, under a ‘C Class’ Mandate, which would effectively last almost 70 years.36 In this respect, the Africa Blue Books introduce the second critique of international crim­inal law that structures its relationship with Africa: its ‘imperial entanglements’. While this critique is most commonly voiced in respect of the recent entanglements of the ICC with the UN Security Council, through the referral and deferral powers granted to the Council under the Rome Statute,37 it can be traced back to Versailles in 1919. As Nesiah points out, from its inception international criminal law has been entangled with ‘agendas that are part of the different articulations of Empire’— at Versailles, Nuremberg, and Rome—including ‘territorial, economic and governance agendas’.38 Third, the story of the Africa Blue Books at Versailles illustrates how from the outset international criminal law has relied on and produced a symbolic and affective regime in which Africa and Africans were, and remain, central; one that drew on both an older ‘racialized regime of representation’,39 and newer ‘imagined communities of sentimentality’40 in the west (with the ‘white humanitarian reading class’ at its core).41 On Read’s account, the push for establishing an international tribunal in 1919 was as much, if not more, the outcome of the politics of popular sentiment—produced by government ‘propaganda’ that was taken up by the media—as they were high politics of international statesmen (or the high-minded utopianism of international lawyers, for that matter). Moreover, the manner in which Africa was ‘represented’ in the Africa Blue Books and other western media drew on racist narratives, imaginaries, and tropes common across and within the imperial powers.42 Here, the Blue Books recall Morrison’s thesis more directly, as Africa and Africans became ‘markers for the benevolent and the wicked’, to ‘evoke and enforce hidden signs of racial superiority, cultural hegemony, and dismissive “othering” of people’.43

36  See generally Siba  N.  Grovogui, Sovereigns, Quasi Sovereigns, and Africans: Race and Selfdetermination in International Law (University of Minnesota Press 1996). 37  One telling example is that of Schabas, who has recently suggested that ‘[f]rom a vibrant and dynamic body, full of potential to alter the post-Second World War order with its fealty to a handful of “great” powers, the ICC has now become far too deferential to the established order’ (emphasis added). William Schabas, ‘The Banality of International Justice’ (2013) 11(3) J of Intl Crim Justice 545, 551 (here­ after Schabas, ‘Banality of International Justice’). 38  Vasuki Nesiah, ‘Doing Justice to History’ in Karen Engle, Zinaida Miller, and D A Davis (eds), AntiImpunity and the Human Rights Agenda (CUP 2017) 98 (hereafter Nesiah, ‘Doing Justice to History’) . 39 Stuart Hall, ‘The Spectacle of the “Other”  ’ in Stuart Hall (ed), Representation: Cultural Representations and Signifying Practices (Sage 1997) 249 (hereafter Hall, ‘Spectacle of the “Other” ’). 40  Margaret Cohen, ‘Sentimental Communities’ in Margaret Cohen and Carolyn Dever, The Literary Channel: The Inter-National Invention of the Novel (Princeton UP 2002) 106 (hereafter Cohen, ‘Sentimental Communities’). 41 Joseph R. Slaughter, Human Rights, Inc: The World Novel, Narrative Form, and International Law (Fordham UP 2007) 301. 42  See further Hall, ‘Spectacle of the “Other” ’ (n 39) 223–78. 43 Morrison, Playing in the Dark (n 4) ix–x.

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162   Christopher Gevers The particular ‘spectacle of the “other” ’ produced by these early international crim­inal law documents was (as the quote at this part’s outset demonstrates) that of the ‘docile’ (feminized) subjects looking to white Europeans ‘for protection [from] . . . attacks upon their virtue’; generating an affective regime predicated on African suffering and European salvation, and of ‘African victims’ and ‘European saviours’.44 There was, however, a third figure present at the project’s inception—that of the ‘African savage’—as the Africa Blue Books often suggested that the actual killing was being done by Africans under German command, including ‘hordes of natives . . . armed with poisoned arrows’.45 This chapter will argue that these three racialized figures—the ‘African savage’, the ‘African victim’, and the ‘European saviour’—introduced, in 1919, a symbolic and affective regime that continues to structure the field of international criminal law (similar to, but distinct from, that of the ‘humanitarian narratives’46 that preceded it, and the ‘compound metaphor’ of international human rights that would come later).47 This regime would expand over the ensuing century—as would the ‘imagined communities of sentimentality’48 that it relies on and re-produces—but its central features (and figures) remain unchanged.

III.  Nuremberg, 1945: Colonialism, Genocide, and European Crimes Nurnberg was colonial, we had taken the country after this wretched war, and were living in it, had to be there for a while. We weren’t sure how the natives would act, whether they would lie down and lick our boots, or slit our throats on too dark a night, yet we were determined to dine out on occasion and have as much fun as we could. It was like Kipling’s Simla, pointed to a different setting in a very different time.49

44  See Makau Matua, ‘Savages, Victims, and Saviours: The Metaphor of Human Rights’ (2001) 42(1) Harvard Intl L J 201 (hereafter Matua, ‘Savages, Victims, and Saviours’). 45  German Atrocities (n 14) 10. Germany’s belated response to the African Blue-Books employed similar language, but went further: arming black Africans against Europeans was not just wrong ‘perpetrated against the white race as a whole’, it was a violation of international law. German Colonial Office, The Treatment of Native and other Populations in the Colonial Possessions of Germany and England: An Answer to the British Blue Book of 1918 (Engelman 1919) 146. 46  Thomas W. Laqueur, ‘Bodies, Details, and the Humanitarian Narrative’ in Lynn Hunt (ed), The New Cultural History (University of California Press 1989) 177 (Although Lacquer identified them as the ‘victim’ and the ‘benefactor’). 47  Matua, ‘Savages, Victims, and Saviours’ (n 44) 201. 48  Cohen, ‘Sentimental Communities’ (n 40) 106. 49  Francis Biddle, US Judge at the Nuremberg IMT, In Brief Authority (Greenwood Press 1962) 422.

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Africa and International Criminal Law   163

A.  ‘Nurnberg was colonial’ There was much that was colonial about Nuremberg, 1945.50 While the International Military Tribunal at Nuremberg is today associated with the prosecution of Nazi crimes against Jews, the Holocaust ‘played a largely ancillary role in the trial’.51 Rather, the central focus of the prosecution was, in the words of Robert Jackson, ‘the greatest menace of our times: aggressive war’.52 And there was much that was colonial about German ‘crimes of aggression’. Judge Biddle’s reference above to Simla recalls Hitler’s refrain that the Eastern territories where going to be ‘Germany’s India’.53 Germany’s own colonial ‘jewel’ was German South West Africa, and the terms ‘lebensraum’ and ‘konzentrationslager’ were first used in relation to that territory.54 While international criminal lawyers are more familiar with Arendt’s Eichmann in Jerusalem (1963), she devoted a significant portion of The Origins of Totalitarianism to European colonialism, and German colonialism in Africa in particular, and suggested that: ‘African colonial possessions [were] . . . the most fertile soil for the flowering of what later was to become the Nazi elite’.55 Colonialism was not only central to the origins of Germany’s ‘aggressive war’, but also to the means employed during its execution. As Césaire pointed out in Discourse on Colonialism: [W]hat [Europe] . . . cannot forgive Hitler for is not crime in itself, the crime against man, it is . . . the fact that he applied to Europe colonialist procedures which until then had been reserved exclusively for the Arabs of Algeria, the coolies of India, and the blacks of Africa.56

Similarly, Fanon argued that through its methods: ‘Nazism transformed the whole of Europe into a veritable colony’.57 Only recently have historians in the west begun to belatedly sharpen the lines of descent (pointed out half a century ago by Césaire, 50  The focus here is on both the International Military Tribunal (IMT) at Nuremberg and the 12subsequent ‘Nuremberg Military Tribunals’ (NMT) prosecuted by the US. On the latter’s significance, see Heller, Nuremberg Military Tribunals (n 8) 2–3. 51  Lawrence Douglas, ‘History and Memory in the Courtroom: Reflections on Perpetrator Trials’ in Herbert  R.  Reginbogin and Cristoph  J.  Safferling (eds), The Nuremberg Trials: International Criminal Law Since 1945 (K.G. Saur Verlag 2006) 96. 52  ‘Opening Statement before the International Military Tribunal’ in Trial of the Major War Criminals before the International Military Tribunal, Vol II (IMT 1947) 98–102. 53 See Alex  J.  Kay, Exploitation, Resettlement, Mass Murder: Political and Economic Planning for German Occupation Policy in the Soviet Union, 1940–1941 (Berghahn Books 2006) 80–81. 54  Benjamin Madley, ‘From Africa to Auschwitz: How German South west Africa Incubated Ideas and Methods Adopted and Developed by the Nazis in Eastern Europe’ (2005) 35(3) European History Q (2005) 429 (hereafter Madley, ‘From Africa to Auschwitz’). 55  Hannah Arendt, The Origins of Totalitarianism (Harcourt, Brace 1951) 206. 56  Aimé Césaire, Discourse on Colonialism (first published 1950, Joan Pinkham (tr), Monthly Review Press 2001) 36 (hereafter Césaire, Discourse on Colonialism). 57  Frantz Fanon, The Wretched of the Earth (Constance Farrington (tr), Grove 1963) 100 (hereafter Fanon, The Wretched of the Earth).

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164   Christopher Gevers Fanon, and others) from German colonial violence, in South West Africa in p ­ articular, to Nazi crimes.58 Yet, these African victims were never officially present in the international justice dispensed at Nuremberg (not even in the way they were initially at Versailles): not the African victims of the German Colonial atrocities prior to World War II, nor the African soldiers persecuted by the Germans on the basis of their race during it.59 Nor were the African victims of violence by Allied Powers before, during, and after the war (and those in the diaspora)60 officially present at Nuremberg.61 Justice for these crimes remained unthinkable in the minds of those who mattered.

B.  A ‘dark, abiding, signing . . . presence’ Africa and Africans were present absences at Nuremberg, however, in at least two respects. Through, first, the narrative constructed at the trials themselves and, second, what would ultimately become their popular legacy (i.e., the crime of genocide), Africa and Africans were used (in Morrison’s words) to both ‘evoke and enforce hidden signs of racial superiority’ and as ‘markers . . . for the wicked’.62 First, as Judge Biddle glibly suggested, at Nuremberg Germans became ‘natives’, fi­gura­tive­ly speaking, the ‘uncivilized’ kind who might ‘slit . . . throats on too dark a night’. In his Discourse on Colonialism, Césaire famously declared, ‘ “Europe” is morally, spiritually indefensible’, in part because ‘Nazi crimes’ had revealed Europe to itself: that ‘the very distinguished, very humanistic, very Christian bourgeois [European] . . . has a Hitler inside him’.63 The architects of the Nuremberg tribunals agreed with Césaire’s 58  See e.g., Sven Lindquist, Exterminate All the Brutes (Joan Tate (tr), New Press 1996); A. Dirk Moses, ‘Conceptual Blockages and Definitional Dilemmas in the “Racial Century” ’ (2002) 36(4) Patterns of Prejudice 31; Enzo Traverso, Origins of Nazi Violence (Janet Lloyd (tr), New Press 2003); Madley, ‘From Africa to Auschwitz’ (n 54); David Olusuga and Caspar W Erichsen, The Kaiser’s Holocaust: Germany’s Forgotten Genocide and the Colonial Roots of Nazism (Faber and Faber 2011). 59  See Raffael Scheck, Hitler’s African Victims (CUP 2006). 60  See J Robert Lilly and J Michael Thomson, ‘Executing US Soldiers in England, World War II: Command Influence and Sexual Racism’ (1997) 37(2) British J of Criminology 262. 61 In fact, when negotiating the London Charter, US delegate Robert Jackson (later Chief US Prosecutor at Nuremberg) supported limiting the scope of the ‘crimes against humanity’ in order to limit uncomfortable comparison to ‘some regrettable circumstances at times in our own country in which minorities are unfairly treated’. Report of Robert  H.  Jackson, United States Representative to the International Conference on Military Trials (US GPO 1949) 333. This did not stop the comparison from being made forcefully after Nuremberg, see William  L.  Patterson, We Charge Genocide: The Historic Petition to the United Nations for Relief from a Crime of the United States Government Against the Negro People (Civil Rights Congress 1951). Notably, Raphael Lemkin publicly refuted the claims, labelling them as attempts to divert attention from crimes of genocide committed against ‘Soviet-subjugated peoples’. See further John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (Palgrave Macmillan 2008) 224–26 (hereafter Cooper, Lemkin). 62 Morrison, Playing in the Dark (n 4) ix–x, ix (emphasis added). 63 Césaire, Discourse on Colonialism (n 56) 32, 36 (emphasis added). Mills notes that ‘[t]he standpoint of Native America, black Africa, colonial Asia, has always been aware than European civilization rests on extra-European barbarism’. Mills, Racial Contract (n 28) 103.

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Africa and International Criminal Law   165 analysis but disagreed with his conclusion; for them ‘Europe’ was defensible, and was to be defended by showing that Germany’s crimes were in fact a betrayal of European or ‘western’ civilization, and that Germans had become Europe’s ‘uncivilized Others’. Contrary to Césaire, they sought to locate ‘Hitler’ definitively outside of ‘the very ­distinguished, very humanistic, very Christian bourgeois [Europe]’.64 As one its main architects Telford Taylor put it, Nuremberg was to be ‘a story of betrayal’,65 one that required an ‘other’ in order to ‘evoke and enforce hidden signs of racial superiority’.66 A close examination of the historical record reveals how this ‘story of betrayal’ was crafted at Nuremberg. In The Betrayal: The Nuremberg Trials and German Divergence, Priemel uses court records, public documents, and private correspondence (drawn from over 40 archives) to demonstrate how the trials were consciously and meticulously designed to communicate that ‘Germany had deviated from the western way’.67 However, while Priemel acknowledges that ‘othering, was the linchpin of the Nuremberg trials’ design’, and this narrative was ‘deeply steeped in nineteenth-century legal thinking of otherness’,68 his ‘intellectual history of . . . German otherness’ focuses on inter-European othering in the decades preceding the war.69 In doing so, Priemel’s otherwise meticulous account overlooks Europe’s more obvious, longstanding ‘other’—the negative counterpart in what Said called the ‘contrapuntal ensemble’ of “Europe” ’70—the ‘uncivilized’ African, or Biddle’s ‘native’. Second, Africa and Africans were also a present absence in what has come to be seen as the legacy of the trials at Nuremberg, the crime of genocide,71 in that they were necessary for Raphael Lemkin’s construction of the crime. First, ‘colonial mass murders’ were central to both Lemkin’s ‘conceptual framework for analysing the German policy of occupation and extermination in Eastern Europe during World War II’,72 and his subsequent project to write a History of Genocide (incomplete when he died in 1959). In that history, Lemkin planned to include chapters on ‘The Germans in Africa’, ‘The Herero’, and ‘S.W. Africa’.73 While Lemkin’s 100-page draft essay on the ‘Belgian Congo’—which 64 Césaire, Discourse on Colonialism (n 56) 32, 36. 65  Cited in Kim Christian Priemel, The Betrayal: The Nuremberg Trials and German Divergence (OUP 2016) 1 (hereafter Priemel, Betrayal). 66 Morrison, Playing in the Dark (n 4) ix–x (emphasis added). 67 Priemel, Betrayal (n 65) 6. 68 Priemel, Betrayal (n 65) 15 (citing, in a footnote, Anne Orford (ed), International Law and Its Others (CUP 2006) as an account of ‘the persistence of such dichotomies’). 69 Priemel, Betrayal (n 65) (see especially ch 2, ‘Mapping the west: Nuremberg’s Sources’). 70 Said, Culture and Imperialism (n 26) 52 (noting that ‘no identity can ever exist by itself and without an array of opposites, negatives, oppositions: Greeks always require barbarians, and Europeans Africans, Orientals, etc’). 71  Despite the fact that the crime of genocide was not prosecuted at Nuremberg, and the Holocaust itself was not the focus of the IMT (it was however ‘foregrounded’ by the subsequent Nuremberg Military Tribunals). See Heller, Nuremberg Military Tribunals (n 8) 4–5. 72 Dominik  J.  Schaller, ‘Raphael Lemkin’s View of European Colonial Rule in Africa: Between Condemnation and Admiration’ (2005) 7(4) J of Genocide Research 531 (hereafter Schaller, ‘Lemkin’s View’). 73  See the outline of the History of Genocide in Steven Leonard Jacobs, Lemkin on Genocide (Lexington Books 2012) 18–19 (hereafter Jacobs, Lemkin on Genocide). Notably, the draft chapter on ‘Herero’ mentions the two ‘Africa Blue Books’, but Lemkin appears only to have had access to the condensed one-page

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166   Christopher Gevers ‘can bear comparison with Adam Hochschild’s book King Leopold’s Ghost’74—estimated that three-quarters of that territory’s inhabitants were ‘wiped out in the space of a few years’.75 In producing these histories of colonial genocide, Lemkin was ahead of his time, as they are seldom acknowledged in subsequent histories of genocide, by historians and international criminal lawyers alike.76 Tellingly, once the Genocide Convention was adopted, Lemkin ensured that the first state to ratify the Genocide Convention was African (just like the Rome Statute 50 years later).77 However, Lemkin relied on Africa and Africans in his conception of genocide at a second level as well, as a ‘marker for the wicked’. Before it became ‘genocide’ in 1943, Lemkin considered ‘German techniques of occupation’ as crimes of barbary and crimes of vandalism:78 the former term having ‘entered European expressions in the sixteenth century with the “Barbary Coast” as a reference to what is today’s Maghreb, or the middle and western coastal regions of North Africa’.79 In doing so, Grovogui argues, Lemkin ‘effectively placed Africans (the Blacks) and Germanic tribes at a crime scene which, at least in the case of Africans, the majority had not seen’, and ‘indicted [them] for actions that they could not imagine or execute’.80 The effect, Grovogui points out, was that ‘the entities that conceived, planned and executed the Holocaust were indexed as his­tor­ic­al­ly and spatially distant communities’ (i.e., Africans), while Europe was ‘exonerated’ and re-established as ‘the legitimate adjudicator of values, norms and institutions’.81

C.  Threads: Race, Empire, and Affective Regimes The present absence of Africa and Africans at Nuremberg recall their role earlier at Versailles in a number of respects. First, the racial politics of the field meant that justice for crimes committed against Africans before, during, and after World War II remained unthinkable. Even when fate made comparisons between German crimes and colonial violence—and black and white victims—seemingly unavoidable; as it did when France discussion of the Herero genocide in Great Britain, Foreign Office, Treatment of Natives in the German Colonies (HMSO 1920), that he draws on extensively. (Jacobs, Lemkin on Genocide (n 73) 221). 74  Cooper, Lemkin (n 61) 248. 75  Lemkin, ‘Belgian Congo’ in The Raphael Lemkin Papers (New York Public Library, Manuscripts and Archives Division, Box 3) 10. 76  Schaller, ‘Lemkin’s View’ (n 72) 532. 77 Cooper, Lemkin (n 61) 175 (noting that Lemkin ‘contacted Stuart Spencer, the American adviser to the Ethiopian government, an African state, and on 1 July 1949 Ethiopia became the first nation to ratify the [Genocide] Convention’. Fifty years later, on 2 February 1999, Senegal became the first state to ratify the Rome Statute. 78  See Raphael Lemkin, Axis Rule in Occupied Europe (Carnegie Endowment for International Peace, Division of International Law 1944) 91–2. 79  Siba  N.  Grovogui, ‘Deferring difference: A postcolonial critique of the “race problem” in moral thought’ in Sanjay Seth (ed), Postcolonial Theory and International Relations: A Critical Introduction (Routledge 2013) 119. 80 ibid. 81 ibid.

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Africa and International Criminal Law   167 massacred 45,000 ‘colonial subjects’ at Setif on the day of German surrender, in reprisal for the murder of 80 to 105 settlers.82 As Grovogui notes: [T]he humanity of the European victims of Germany could be asserted, but not that of those ‘who owed their allegiance . . . as colonial subjects’. Not even the Algerians murdered on V-Day . . . in Setif by their former World War II French trenchmates could be considered victims. They were after all ‘natives’ who inhabited ‘colonial countries’.83

Second, not only was ‘Europe’ exonerated or redeemed at Nuremberg, the Allied Powers’ imperial gains were set in international legal stone. As Justice Pal pointed out in his dissentient opinion at the International Military Tribunal for the Far East—and much like at Versailles in 1919—the effect of the international justice dispensed at Nuremberg and Tokyo tribunals was to consolidate European colonialism (and silence its crimes) through international criminal law generally, and the ‘crime of aggression’ in particular. As Simpson notes: Pal’s most important insight . . . was to reveal international law as a project for sta­bil­iz­ing and securing existing power distributions within international society. For him, the criminalization of aggression was simply a way of freezing the status quo. The criminal repression of territorial change was meant to ensure that the frontiers created by the original sin of colonial maldistribution would remain fixed by the le­git­im­at­ing force of an international rule of law.84

More broadly, Nuremberg was also part and parcel of the consolidation of ‘the Allies as arbiters of a new world order’,85 one in which Africa’s place remained materially unchanged since Versailles. Third, the present absence of Africa and Africans, both at Nuremberg and in the introduction of the crime of genocide in its aftermath, recalled the affective regime introduced at Versailles, and the figure of the ‘African savage’ in particular. Even when he was condemning colonial violence, Lemkin was not immune from invoking this ‘spectacle of the “Other” ’. According to his account, the genocide in the ‘Belgian Congo’, while under the direction of the Belgians, was carried out by Africans that he described as ‘an unorganized and disorderly rabble of savages whose only recompense was what they obtained from looting, and when they were cannibals, as was usually the case, in 82  Yves Biegber, Judging War Crimes and Torture: French Justice and International Criminal Tribunals and Commission (1940–2005) (Martinus Nijhoff 2006) 94–5 (hereafter Biegber, Judging War Crimes and Torture). 83  Grovogui, ‘Come to Africa’ (n 32) 445 (emphasis added). See Mills, Racial Contract (n 28) 101 (noting that the social contract ‘norm of the infinite value of all human life . . . has to be rewritten to reflect the actual (Racial Contract) norm of the far greater value of white life, and the corresponding crystallization of feelings of vastly different outrage over white and nonwhite death, white and nonwhite suffering’). 84 Simpson, Law, War and Crime (n 9) 147 (emphasis added). 85  Nesiah, ‘Doing Justice to History’ (n 38) 108.

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168   Christopher Gevers eating the foes against whom they were sent’.86 Moreover, Lemkin recalled the symbolic and affective regime introduced at Versailles directly when he went on to suggest that ‘[t]he African natives have always been divided into two categories: The peacable [sic] and the warlike, and the Germans turned this situation to their own advantage’.87 His was an ‘Africa’ of only victims or savages or, as Biddle put it, natives who would ‘lie down and lick our boots’, and those who would ‘slit our throats on too dark a night’.

IV.  The Cold War era: Late colonial violence, Biafra, and apartheid For the first time in our history Britain has become an active accomplice in the deliberate slaughter of hundreds of thousands of men, women and children, whose only crime is that of belonging to a proscribed nation: in short, an accomplice in genocide.88

A.  Re-telling ‘The Cold War Era’ In 1957 Ghana obtained its independence, and a number of other African colonies would soon follow, bringing the ‘postcolonial African state’ into the international legal order. Contrary to the gentle recreations of today, ‘decolonization’ was a violent phenomenon. Colonial powers did not shy away from ‘the use of massive force in fighting the growing anticolonial resistance in the periphery’ and committed untold inter­ nation­al crimes in the process.89 The same year that Ghana obtained its independence, Raphael Lemkin labelled the French actions in Algeria genocide, while the International Committee of the Red Cross (ICRC) visited ‘Mau Mau’ detention camps in Kenya. However, the ICRC failed to expose the systematic abuses in these camps (and, arguably, contributed to covering them up),90 and one of the ICRC delegates would privately tell his friend, the Governor, ‘Ne vous inquiétez pas. Compared to the French in Algeria, you are angels of mercy’.91

86  Lemkin, ‘Belgian Congo’, The Raphael Lemkin Papers, New York Public Library, Manuscripts and Archives Division, Box 3, 10. Similarly, in ‘Germans in Africa’ Lemkin wrote, ‘the native soldiers were free to tyrannize over their fellows, giving free rein to their savage lust for murder and rapine’ (Jacobs, Lemkin on Genocide (n 73) 220). 87 ibid. 88  ‘Another More Murderous Harvest’ The Spectator, 31 May 1968 (hereafter ‘Another More Murderous Harvest’). 89  Fabian Klose, Human Rights in the Shadow of Colonial Violence: The Wars of Independence in Kenya and Algeria (University of Pennsylvania Press 2013) 5 (hereafter Klose, Shadow of Colonial Violence). 90  See Yolana Pringle, ‘Humanitarianism, Race and Denial: The International Committee of the Red Cross and Kenya’s Mau Mau Rebellion 1952–60’ (2017) 84 History Workshop J 89. 91  Terence Gavaghan, Of Lions and Dungbeetles (Arthur H. Stockwell 1999) 235.

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Africa and International Criminal Law   169 For their part, newly independent African states were quick to turn to international law for redress, beginning with taking South Africa to the International Court of Justice (ICJ) in 1960 over the treatment of the inhabitants of South West Africa, and by implication the implementation of apartheid in South Africa itself.92 Then, when the ICJ by its infamous 1966 decision ‘joined in [the] battle against Africa’,93 African states quickly turned to international criminal law. First, with the declaration by the General Assembly in 1966 that apartheid was a crime against humanity, followed by the inclusion of apartheid in the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity,94 that then led to the adoption of the Apartheid Convention in 1973, which almost led to the creation of an international criminal court in the 1980s. In the interim, the first major ‘postcolonial conflict’ in Africa— widely-considered at the time to be the first genocide since the Holocaust—took place when the ‘Republic of Biafra’ tried to secede from newly-independent Nigeria in 1967. However, by most accounts very little happened in international criminal law during the Cold War, institutionally or otherwise. Not least because the prosecutions of innumerable late colonial crimes (in Kenya, Algeria, and elsewhere), ongoing neo-colonial crimes (the crime of apartheid in South Africa and South West Africa), and postcolonial crimes (the ‘Biafran genocide’) remained unthinkable (although, in the case of Biafra, distinctly so). By bringing Africa, Africans, and now ‘postcolonial African states’ into the standard account of the Cold War era, the next part of the chapter aims to show how this period was nevertheless productive for international criminal law; and that Africa and Africans remained present absences throughout, just as they had been at Versailles, and Nuremberg. As before, the re-told story of the Cold War era begins with unthinkable colonial crimes.

B.  Late Colonial Violence International crimes were ‘nothing less than an essential characteristic’ of late colonial violence,95 and their perpetrators were—as Fanon noted at the time—‘nothing more than war criminals’.96 The Algerian war of independence saw somewhere between 200,000 and 1.5 million Algerian lives lost (the French and Algerian estimates, respectively),97 with the French routinely employing torture and summary executions.98 Reports of these French colonial atrocities were not uncommon at the time. One notable 92 See South west Africa Cases, Second Phase, Judgment, [1966] ICJ Rep 6 (hereafter South west Africa Cases, Second Phase). 93  Benoit Bindzi, Statement by the Cameroonian Delegate to the General Assembly, UNGAOR, 21st Sess, 1412th Plen Mtg, UN Doc A/PV.1412 (1966) para 77. 94  GA Res 2391 (XXIII), UNGAOR, 23rd Sess, 1727th Plen Mtg, 26 November 1968 (entered into force 11 November 1970) accessed 14 April 2019 (hereafter Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes Against Humanity). 95 Klose, Shadow of Colonial Violence (n 89) 139. 96 Fanon, The Wretched of the Earth (n 57) 101. 97 Biegber, Judging War Crimes and Torture (n 82) 96. 98  ibid 96–98, 125.

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170   Christopher Gevers example being the one sent to the ICRC in 1960 by three French lawyers (one of whom was Jacques Verges, who later defended Klaus Barbie) detailing the use of ‘summary executions’ by the French army, which they said was a daily occurrence that had resulted in ‘several thousand’ deaths, and was a grave breach of Article 3 of the Geneva Conventions.99 The front de libération nationale (FLN) went further, alleging that the French actions, and that of the settlers, amounted to genocide.100 The ‘anticolonial bloc’ at the United Nations even tried to get these allegations onto the agenda of the UN General Assembly on this basis.101 Notably, Raphael Lemkin agreed: in 1957 he wrote a memorandum usefully titled ‘To Avoid Responsibility for Genocide in Algeria the French are Destroying the Genocide Convention’, that argued that France was trying to influence the wording of the Draft Code of Offences against Peace and Security of Mankind in order to ‘free the French colons in Algeria from any responsibility for crimes committed against the Algerians’.102 The FLN were reportedly so grateful for Lemkin’s support that they sent a delegation to attend his tombstone consecration.103 However, nothing came of Lemkin’s intervention, or that of Verges, at the time or since. While France was trying to put down anti-colonial rebellion in Algeria, the British were trying to suppress revolt in Kenya and were also committing international crimes in the process, the scale and detail of which have only recently come to the attention of historians in the west.104 In Imperial Reckoning, Elkins estimates that ‘somewhere between 130,000 and 300,000’ Kikuyu were killed (the British estimate is 11,503) and details the use of ‘concentration camps’ and widespread and systematic murder and mistreatment (including mutilation, torture, and sexual abuse).105 Elkins argues that the 99 ‘Report from Jacques Vergès, Maurice Courrégé, and Michel Zavrian to the ICRC president’ (ACICR, B AG 225 078–007, 12 March 1960) cited in Klose, Shadow of Colonial Violence (n 89) fn 85. 100  ‘White Paper Submitted by the Delegation of the Front of National Liberation to the United Nations Organisation on the Franco-Algerian Conflict’ (MAE, NUOI Carton 548, 12 April 1956) cited in Klose, Shadow of Colonial Violence (n 89) fn 159; ‘Ferhat Abbas and Yazid Mohamed to the President of the 11th UN General Assembly’ (CAOM 81 F1013, February 1957) cited in Klose, Shadow of Colonial Violence (n 89) fn 163; ‘FLN brochure Genocide in Algeria’ (CAOM 81 F530, June 1958) cited in Klose, Shadow of Colonial Violence (n 89) fn 165; Matthew Connelly, A Diplomatic Revolution: Algeria’s Fight for Independence and the Origins of the Post-Cold War Era (OUP 2003) 90. 101  ‘Letter from the UN delegates from Afghanistan, Egypt, Burma, Ceylon, Indonesia, Iran, Iraq, Jordan, Lebanon, Libya, Pakistan, the Philippines, Saudi Arabia, Syria, Thailand, and Yemen to the UN Secretary General requesting inclusion of item 62 “Algerian Question” and explanatory memorandum’ UNGAOR, Doc A/3197 (1 October 1956). 102 ‘To Avoid Responsibility for Genocide in Algeria the French are Destroying the Genocide Convention’ (Lemkin Papers, Box 4/3 American Jewish Archives, circa 1957). He added that France was also ‘working simultaneously on an additional plan . . . [to make] “Genocide” a form of discrimination in order to bring it within the limitations of article 2 point 7 of the U.N. Charter’. 103 Cooper, Lemkin (n 61) 250. 104  See e.g., Caroline Elkins, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (Owl Books 2006) (hereafter Elkins, Imperial Reckoning). While this story was ‘untold’ in the west, it has been well-known and documented in ‘memoirs, autobiographies and thinly fictionalized participant accounts’ for some time. Susan Carruthers, ‘Mau Mau Memoirs: History, Memory and Politics. Marshall S. Clough’ (1998) 74(2) Intl Affairs (1998) 450. 105 Elkins, Imperial Reckoning (n 104).

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Africa and International Criminal Law   171 actions of the Colonial Office, white settlers, and Kikuyu loyalists were genocidal, ‘Mau Mau became for many whites in Kenya, and for many Kikuyu loyalists as well, what the Armenians had been to the Turks, the Hutu to the Tutsi, the Bengalis to the Pakistanis, and the Jews to the Nazis’.106 Similar allusions were made privately at the time by the British themselves. Amongst recently discovered British files is a memorandum from the Colonial Attorney-General describing the treatment of detainees in Kenyan concentration camps as ‘distressingly reminiscent of conditions in Nazi Germany or Communist Russia’, adding: ‘If we are going to sin’, he wrote, ‘we must sin quietly’.107 Notably at the time, the British were able to publicly conceal their crimes in part through the use of atrocity stories reminiscent of Versailles, which relied on the same racist tropes and narratives of ‘African savagery’ on the part of the Mau Mau.108 The media in the west played an important part once more, by ‘present[ing] photographic spreads with chilling pictorial evidence of Mau Mau’s savagery that contrasted dramatically with images of the local British settlers’.109 In any event, whatever private concerns of conscience there might have been, there appears to have been little concern amongst British officials at the time that ‘the UK could be held in breach of the [Genocide] Convention because of its colonial policies’.110 In fact, while historians have shown how ‘western colonial powers . . . resisted any attempt to extend human rights to their colonies’,111 on the whole there is little to suggest that they had serious concerns about their actions being characterized as international crimes. It seems ‘international justice’ for colonial violence remained largely unthinkable—for colonial powers, and also the western media and publics—as it had been at Versailles and Nuremberg, notwithstanding the efforts of the ‘Father of the Genocide Convention’ to condemn them as such.

106  ibid 49. 107  ‘Kenya: UK Expresses Regret over Abuse as Mau Mau Promised Payout’ The Guardian (5 June 2013). 108 Klose, Shadow of Colonial Violence (n 89) 237. The ‘Myth of the Mau Mau’ was that it was ‘a rejection of civilization, an atavistic regression into barbarity’. A.  S.  Cleary, ‘The Myth of Mau Mau in Its International Context’ (1990) 89(355) African Affairs 227 (hereafter Clearly, ‘Myth of Mau Mau’). See further Susan Lisa Carruthers, ‘Propaganda, Publicity and Political Violence: The Presentation of Terrorism in Britain, 1944–60’ (DPhil thesis, University of Leeds, May 1994) 218 accessed 14 April 2019. 109  Outside of the west (in Eastern Europe and India in particular) the media coverage was quite different, one headline reading, ‘British Gestapo Hunts Members of the Mau Mau Liberation Movement’. See Clearly, ‘Myth of Mau Mau’ (n 108) 235–38. 110 Karen E. Smith, Genocide and the Europeans (CUP 2010) 48 (hereafter Smith, Genocide and the Europeans) (‘[t]here is no indication that this was ever a worry, even though . . . the brutality with which the British repressed the “Mau Mau” insurgency in Kenya in the 1950s sparked outrage in the UK. Clearly it was too farfetched to consider that such massacres (and the associated racism) might appear to others to be genocidal’). 111  Roland Burke, Decolonization and the Evolution of International Human Rights (University of Pennsylvania Press 2010) 114.

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172   Christopher Gevers

C.  The Biafran war, the Postcolonial World Order and the ‘Image[s] of Africa’ While characterizing colonial crimes as international crimes was unthinkable for many at the time (and remains so), when it came to postcolonial crimes, matters where quite different. In July 1967, war broke out between Nigeria and the secessionist ‘Republic of Biafra’, following the latter’s declaration of independence one month earlier. While the western media and publics initially showed little interest in the conflict, this changed dramatically in June 1968 when The Sun ran a front-page story on ‘The Land of No Hope’, accompanied by ‘images of suffering’ last seen during the trials in Nuremberg.112 From that moment on, not only did the international community become interested in the Biafran conflict, but allegations of ‘genocide’ and comparisons to the Holocaust became commonplace. In fact, the first time that the American Jewish Committee (AJC) used the term ‘genocide’ after the Holocaust was in reference to the conflict in Biafra. In September 1968, the AJC’s Rabbi Marc H. Tanenbaum told ‘A Protest Against Genocide’ rally in New York: ‘Lidice is the most widely known example of Nazi savagery and one of the longest remembered acts of barbarism in the civilized world. In the second half of the 20th century, Biafra is on its way to becoming the Lidice of mankind.’

In doing so, the AJC was joined by some western politicians, including (then candidate) Richard Nixon; religious leaders, including the Pope ‘kind of ’;113 and public figures, including the Beatles: a somewhat unholy trinity. However, despite these widespread allegations of genocide, there was little appetite amongst states in the Global North, on either side of the Cold War divide, to determine whether there was any basis to the claims. In fact, Britain took the unusual step of orchestrating an ‘International Observer Team’ in late 1968 to prove that genocide wasn’t taking place in Nigeria.114 The Observer Team duly did so without setting foot in ‘Biafra’ itself, through a series of reports, the first of which was helpfully called ‘No Genocide’.115 Even amongst those for whom there was genocide (and other international crimes) 112  Lasse Heerten, The Biafran War and Postcolonial Humanitarianism: Spectacles of Suffering (CUP 2017) 178 (hereafter Heerten, Biafran War). 113  In his benediction of 11 January 1970, the Pope referred to the ‘kind of genocide’ in Biafra. Herald Tribune, 12 January 1970 cited in Stremlau, The International Politics of the Nigerian Civil War, 1967–1970 (Princeton UP 2016) 367; Lawrence Fellows, ‘Nigerian Rejects Help from Groups that Aided Biafra’ New York Times, 14 January 1970. 114 Smith, Genocide and the Europeans (n 110) 81. The mission was undertaken officially at the invitation of the Nigerian government and with representatives from Canada, Poland, Sweden, the UK, the OAU, and the UN. 115  ‘No Genocide: Report of Observer Team to Nigeria’ Nigerian National Press, Lagos, December 1968. Its subsequent reports included one helpfully called ‘No Indiscriminate Bombing: Report on Activities of the Representatives of Canada, Poland, Sweden, and the U.K.  during the period 14th January-6th March, 1969’ Nigerian National Press, Lagos, March 1969.

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Africa and International Criminal Law   173 taking place in Biafra, there was little call for criminal prosecutions; notwithstanding considerable international legal minds exercised in respect of the conflict generally.116 Biafra was nevertheless productive for international criminal law in a number of now familiar respects: First, the ‘muscular humanitarianism’117 that underwrites much Western intervention in postcolonial states, which is said to have emerged in the postCold War era, can in fact be traced back to Biafra. In the debates amongst British ­parliamentarians immediately after The Sun’s front-page story of June 1968, the conflict was not only framed as a ‘genocidal war’, but the immediate response was western intervention (‘a Commonwealth peacekeeping force’).118 One parliamentarian, seemingly lacking any sense of irony (if not time) noted that ‘the boundaries of States in Africa are the artificial creation of European powers’ and ‘should [not] necessarily prevail for the rest of history’.119 International lawyers played their part as well. In 1969, Reisman and McDougal produced a memorandum on ‘Humanitarian Intervention to Protect the Ibos’ (that would become important for humanitarian debates in the 1990s).120 Non-state actors in the west were also empowered, and new humanitarian actors emerged, while old ones faltered (most notably French doctors broke away from the Red Cross to form the Comité de lutte contre le génocide au Biafra, and later Médecins Sans Frontières).121 Through the mobilization of the language of international criminal law in Biafra, the postcolonial world order was ‘re-imagined’122 along familiar imperial lines, with Africa becoming the site for Western intervention by states, international institutions, and non-state actors. In doing so, the Biafran conflict would lay the normative and ­institutional foundations for interventions in the name of international criminal law following the end of the Cold War: by states (in the form of universal jurisdiction, often by former colonial powers), institutions (the ad hoc Tribunals, and then the ICC), and by non-state actors. Second, the representation of the Biafran conflict produced ‘images of Africa’ that supplemented international criminal law’s symbolic and affective regime in two important respects. First, the conflict produced actual ‘images’ of Africa—as ‘images of starving Biafran children entered the everyday lives of people across the west’123—images that have become synonymous with African suffering since. Second, the conflict drew 116  Michael Reisman and Myres McDougal, ‘Humanitarian Intervention to Protect the Ibos’ (1969) reprinted in R Lillich (ed), Humanitarian Intervention and the United Nations (UP of Virginia 1973) 167 (hereafter Reisman and McDougal, ‘Humanitarian Intervention’). See further Nicholas  J.  Wheeler, Wheeler, Saving Strangers: Humanitarian Intervention in International Society (OUP 2000) 42–43. 117  Anne Orford, ‘Muscular Humanitarianism: Reading the Narratives of the New Interventionism’ (1999) 10 European J of Intl L 679. 118  See Heerten, Biafran War (n 112) 113. 119  ibid 114. 120  Reisman and McDougal, ‘Humanitarian Intervention’ (n 116). Notably, the authors did cite Article VI of the Genocide Convention and the Nuremberg Tribunals, but only in relation to the supposed ir­rele­vance of immunity. See ibid 175–76. 121  On Médecins Sans Frontières, the re-imagination of the third world, and colonial guilt, see Jessica Whyte, ‘Powerless Companions or Fellow Travellers?: Human Rights and the Neoliberal Assault on PostColonial Economic Justice’ (Radical Philosophy, June 2018) accessed 14 April 2019. 122 Heerten, Biafran War (n 112) 9. 123  ibid 128.

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174   Christopher Gevers on, and developed, what Chinua Achebe (a one-time envoy for the Republic of Biafra) called ‘the dominant image of Africa in the western imagination’; one that ‘set[s] up Africa as a foil to Europe, as a place of negations at once remote and vaguely familiar, in comparison with which Europe’s own state of spiritual grace will be manifest’.124 Or, as Morrison puts it, ‘the canvas upon which a portrait of a wiser, or sadder, or fully reconciled [European] self could be painted’.125 This ‘Image of Africa’ was by no means novel, but representations of Biafra drew heavily on it to produce a rhetorical figure that would become central to international criminal law: the white (male) humanitarian saviour. The ‘wandering European’ who enters an ‘Africa’ figured as ‘a metaphysical battlefield devoid of all recognizable humanity’, and (re)discovers his own in the process.126 In Biafra, this symbolic figure took the form of the male European missionary carrying the stricken African child.127 Later, it became that of the ICC prosecutor: ‘the [white] man in the white suit’ wandering into a ‘Congolese village’.128 In Biafra, as in Versailles and Nuremberg, the figures of the ‘African victim’ and the ‘European saviour’ were once again supplemented by that of the ‘African savage’, invoked by journalists and international lawyers129 alike. In fact, when references to ‘savages’ were omitted by journalists’ reporting on Biafra, the editor of the New York Times (who well-understood the affective regime that bound together his audience) promptly inserted them.130 Of course both the ‘muscular humanitarianism’ of the West and the re-figuring of the humanitarian Western actor required a calculated forgetting of the (still very recent) colonial past, which former colonial powers were more than happy to do. None more so than Germany, for whom Biafra also represented an opportunity to redress the ‘betrayal’ narrative of Nuremberg by demonstrating that ‘[a]fter the barbarism of Nazis rule, the postimperial west Germany of the late 1960s [had] become a part of the west’.131 Biafra seemingly offered expiation for the German people as well, through joining the ‘im­agined community of sentimentality’ it generated, as more individual petitions were 124  Achebe, ‘Image of Africa’ (n 3) 784 (emphasis added). 125  Toni Morrison, The Origins of Others (Harvard UP 2017) 103. 126  Achebe, ‘Image of Africa’ (n 3) 790, 793. 127  On the over-representation of western male priests in Biafra, see Heerten, Biafran War (n 112) 161. 128  The narrator’s opening lines in the 2010 documentary The Prosecutor, that depicts the ICC pros­ ecu­tor’s arrival in a Congolese village, preceded immediately by images of (i) African women and children and then (ii) an armed African man. As Schwobel points out, in addition to The Prosecutor, ‘other documentaries, including The Reckoning from 2010 and The Court, released in 2013, make use of the same narrative of heroes, victims and perpetrators’. See Christine Schwobel, ‘The Market and Marketing Culture of International Criminal Law’ in Schwobel (ed), Critical Approaches to International Criminal Law: An Introduction (Routledge 2014) 272–73. See further Wouter  G.  Werner, ‘Justice on Screen— A Study of Four Documentary Films on the International Criminal Court’ (2016) 29 Leiden J of Intl L 1043. 129  Reisman and McDougal, ‘Humanitarian Intervention’ (n 116) 167. 130  Milton Allimadi, The Hearts of Darkness: How White Writers Created the Racist Image of Africa (Black Star Books 2002). British papers were little different. See A Bolaji Akinyemi, ‘The British Press and the Nigerian Civil War’ (1972) 71 African Affairs 408. 131 Heerten, Biafran War (n 112) 218.

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Africa and International Criminal Law   175 sent to the UN about the conflict from Germany than from any other country.132 A Foreign and Commonwealth Office memo written at the time speculated that ‘[i]t seems possible that many Germans find a psychological compensation in protesting against allegations of genocide in Nigeria for their failure to make similar protests in Germany under Hitler’.133

D.  African States, Apartheid, and the (almost) International Criminal Court Unlike Germany, Britain had not had its ‘Nuremberg moment’ and so the assertion that Biafra was ‘the first time in . . . history [that] Britain has become an active accomplice in the deliberate slaughter of hundreds of thousands of men, women and children’ was neither controversial nor uncommon.134 African states, however, would certainly have disagreed. Colonialism and slavery aside, Britain was at the time an ‘active accomplice’ in the ongoing international crime of apartheid taking place in South Africa and South West Africa. As a result, while the west invoked the language of international criminal law to re-imagine the future postcolonial order in Biafra, African states used it to address the last vestiges of the colonial not-yet-past, and what they saw as the greatest inter­nation­al crime of the day: apartheid South Africa. When Oliver Tambo of the African National Congress (ANC) addressed the UN in 1963—the first time a member of the South African liberation movement addressed a major UN body—he called apartheid ‘genocide masquerading under the guise of a civilised dispensation of justice’.135 By then newly independent African states had already unanimously decided to take South Africa to the ICJ—in the names of its ‘oldest’ states, Ethiopia and Liberia—to challenge the implementation of apartheid in South West Africa, and by implication South Africa.136 They chose American lawyer Ernest Gross to represent their case, who, Irwin argues, ‘[modelled] Africa’s case on the most prominent human rights trial of the twentieth century, the Nuremberg Trials’.137 After some initial success, their efforts were met with the infamous 1966 decision of the ICJ declaring that

132  ibid 227. 133  Document PMVB (69) of 16 January 1969 in UKNA fi le FCO 65/179 cited in Smith, Genocide and the Europeans (n 110) 70. 134  ‘Another More Murderous Harvest’ (n 88). 135  Oliver Tambo, ‘United Nations Must Take Action to Destroy Apartheid’ (Statement at the meeting of the Special Political Committee of the General Assembly, New York, 29 October 1963) reprinted in Enuga Sreenivasulu Reddy (ed), Apartheid and the International Community: Addresses to the United Nations Committees and Conferences (Sterling Publishers 1991). 136 See Second Conference of Independent African States, Addis Ababa, June 14 to 26, 1960 (Ministry of Information of the Imperial Ethiopian Government 1960) 105. See further Ernest A. Gross, ‘The South west Africa Cases: On the Threshold of Decision’ (1964) 3 Columbia J of Transnational L 19. 137 Ryan M. Irwin, Gordian Knot: Apartheid and the Unmaking of the Liberal World Order (OUP 2012) 110.

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176   Christopher Gevers Ethiopia and Liberia had no legal interest in the matter.138 African states were ­universally critical of the ICJ’s decision. Foreshadowing their complaints against the ICC half a century later, African states accused the ICJ of ‘neo-colonialism’139 and threatened it with mass withdrawal.140 The ‘turn’ to international criminal law by African states was almost immediate: in December 1966 all but one African state voted in favour of the General Assembly reso­ lution declaring apartheid to be a ‘crime against humanity’.141 Two years later African states fought doggedly to include specific references to the crime against humanity of apartheid in both the Preamble and the substance of the 1968 Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes Against Humanity.142 As one African delegate put it: ‘The definitions in the Charter of the Nuremberg Tribunal represented the view of the allied Powers in 1945; because of their limited purposes, those definition were no longer suitable for present-day world needs’.143 For their part, Western powers doggedly opposed any reference to apartheid, largely on ‘technical’ grounds, but African states, with the support of Third World allies, won and the crime against humanity of apartheid was included in the Convention.144 In response, European states formulated their own convention on the subject that simply omitted the crime against humanity of apartheid.145 Then, in 1973, the General Assembly adopted the International Convention on the Suppression and Punishment of the Crime of Apartheid,146 which not only criminalized

138 See South west Africa Cases, Second Phase (n 92). See Victor Kattan, ‘Decolonizing the International Court of Justice: The Experience of Judge Sir Muhammad Zafrulla Khan in the South west Africa Cases’ (2015) 5(2) Asian J of Intl L 310. 139  UNGAOR, 21st Sess, C5, 1132nd Mtg, 25 October 1966, 70. The President of Liberia, at the time, noted that the decision was ‘transparent with racism and the old game of colonialism’. 140  UNGAOR, 21st Session, C5, 1124th Mtg, 10 October 1966, 24. 141  The Policies of Apartheid of the Government of the Republic of South Africa, GA Res 2202 (XXI), UNGAOR, 21st Sess, 1496th Plen Mth, 16 December 1966 accessed 14 April 2019. Malawi was the only African state (aside from South Africa) that did not support the resolution, deciding to abstain (along with Australia, Austria, Belgium, Canada, France, Italy, Japan, Luxembourg, Netherlands, New Zealand, United Kingdom, and the United States). Portugal and South Africa opposed it. For the background to the resolution see ‘General Assembly’ (1967) 21(2) Intl Organization 336, 391–400. 142  See UNGAOR, 23rd Sess, C3, 1568th Mtg, 10 October 1968, 5 (African states unanimously rejected UK amendment that removed reference to apartheid from Article I); UNGAOR, 23rd Sess, C3, 1573rd Mtg, 15 October 1968, 1 (African states unanimously voting in favour of Preamble). See generally UNGAOR, 23rd Sess, C3, 1562nd-1574th Mtgs. The Convention was subsequently adopted by the General Assembly and entered into force on 11 November 1970. See Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (n 94). 143  Statement by Representative from Dahomey (as reported), UNGAOR, 23rd Sess, C3, 1567th Mtg, 10 October 1968. 144  See further, Christopher Gevers, ‘Prosecuting the crime against humanity of apartheid: never, again’ (2018) African YB Intl Hum Law 25–49. 145 See European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes, Council of Europe, 25 Janruary 1974, Eur TS No 82. 146  30 November 1973, 1015 UNTS 244 (hereafter Apartheid Convention).

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Africa and International Criminal Law   177 apartheid but created ‘unprecedented powers of jurisdiction and enforcement’.147 Like the 1948 Genocide Convention, it called for the prosecution of the crime of apartheid by ‘an international penal tribunal’, but it went further: empowering ‘a competent tribunal of any State Party’ to do so (i.e., through exercising universal jurisdiction);148 and providing for international criminal responsibility for individuals who ‘abetted, encouraged, or cooperated in the crime of apartheid’.149 Little was to come of the latter two innovations, but the efforts to establish an ‘international penal tribunal’ as contemplated by the Apartheid Convention contributed significantly to the establishment of the ICC in ways that remain unacknowledged today. In 1980, the UN Commission on Human Rights asked Egyptian international lawyer Cherif Bassiouni to undertake a study into establishing the ‘international penal tribunal’ anticipated by the Apartheid Convention.150 Bassiouni went a few steps further: producing not only a study but a draft convention, not only for the crime of apartheid but for international crimes generally. In his commentary on the Draft Convention on the Establishment of an International Penal Tribunal for the Suppression and Punishment of the Crime of Apartheid and Other International Crimes (‘Draft Apartheid Tribunal Convention’), Bassiouni claimed that the 1973 Apartheid Convention was ‘the only international convention which specifically contemplates an “international penal tribunal” ’ (the Genocide Convention notwithstanding),151 and argued that under Article V of the Apartheid Convention (alone) ‘the legislative authority for the creation of an International Criminal Court is clearly established’.152 Under Bassiouni’s Draft Apartheid Tribunal Convention, the resultant ‘international criminal court’ (a ‘new international legal entity’)153 would be based in The Hague,154 147  Adam Sitze, ‘The crime of apartheid: geneology of a succesful failure’ (2019) 7(2) London Review of International Law 181–214 (hereafter Sitze, ‘Crime of Apartheid’ n 147). 148  Article V, Apartheid Convention (n 146) (emphasis added). As opposed to the ‘the State in the territory of which the act was committed’. See Article VI, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 278. Bassiouni argued at the time that ‘the distinctive essence of the Apartheid Convention is that it addresses the consequences for States generally of conduct occurring within another State’. See Study on Ways and Means of Insuring the Implementation of International Instruments such as the International Convention on the Suppression and Punishment of the Crime of Apartheid, Including the Establishment of the International Jurisdiction Envisaged by the Convention, UNESCOR, Commission on Human Rights, 37th Sess, UN Doc E/CN.4/1426 (19 January 1981) 5 accessed 14 April 2019 (hereafter Study on Apartheid Convention). 149  John Dugard, International Law: A South African Perspective (Juta 1994) 214. 150 See Implementation of the International Convention on the Suppression and Punishment of the Crime of Apartheid, Commission on Human Rights Res 12 (XXXVI), 36th Sess, 26 February 1980, para 7. 151  Study on Apartheid Convention (n 148) 46 (‘[n]o other international convention, which has as its objective to criminalize a certain conduct, contains a similar requirement. In fact only the [Genocide Convention] . . . incidentally recognizes the eventual jurisdiction of an International Criminal Court’ (emphasis added). 152  Study on Apartheid Convention (n 148) 13 (noting later that ‘the only international legislative authority for an International Penal Tribunal is the Apartheid Convention’ at 46). 153  ibid 2. 154  Article 2, Draft Apartheid Tribunal Convention in Study on Apartheid Convention (n 148).

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178   Christopher Gevers be independent of the Apartheid Convention, and have its jurisdiction extended to prosecute all international crimes.155 At the time, Bassiouni declared that the Draft Apartheid Tribunal Convention had reawakened the promise of an international criminal court, by remedying the flaws in the post-Nuremberg attempts at creating one.156 There was, of course, to be no Apartheid Tribunal, but it was not without consequence. In the 1980s the halting efforts at establishing such a tribunal led to African states’ decision not to prosecute international crimes through its nascent regional human rights regime (a decision they likely regret, and have recently revisited).157 Then, when it came to drafting what would become the Rome Statute of the International Criminal Court in the 1990s, the Draft Apartheid Tribunal Convention was its blueprint.158

V.  The 1990s: The Era of (Anti-)Impunity It was not sufficient to refer to [existing] international law in defining the crimes in question since that law, which had been formulated in the past by the developed countries, did not take into account certain present-day realities which were of the highest importance for the young countries. It was important that the convention should apply to crimes past, present and future. Apartheid was one of the gravest crimes against humanity being committed today and it would render the draft convention meaningless if [it] . . . were omitted.159

The 1990s held much promise, both for international criminal law and for its relationship with Africa. The end of the Cold War brought renewed hope that the long-deferred 155  See Article 4(2), Draft Apartheid Tribunal Convention in Study on Apartheid Convention (n 148). Bassiouni suggested that the Apartheid Convention might be used as the ‘international legislative basis . . . to permit the International Penal Tribunal to investigate, prosecute, adjudicate and punish other conventional international crimes’. Study on Apartheid Convention (n 148) 46. Bassiouni also produced an alternate draft convention—the Draft Additional Protocol for the Penal Enforcement of the International Convention on the Suppression and Punishment of the Crime of Apartheid—which would supplement the 1973 Apartheid Convention, mostly utilize ‘existing United Nations structures’, and be limited to prosecuting the crime of apartheid. 156 See Study on Apartheid Convention (n 148) 13–4. 157  See Frans Viljoen, ‘A Human Rights Court for Africa, and Africans’ (2005) 30(1) Brooklyn J of Intl L 1, 4–5. 158  See Cherif Bassiouni, The Legislative History of the International Criminal Court (Transnational Publishers 2005) 36, 39–40 (noting that the 1994 Draft Statute for an International Criminal Court ‘was patterned after the 1980 draft statute to establish an international criminal jurisdiction to enforce Article V of the Apartheid Convention’). According to Bassiouni, the ICTY Statute was modelled to some extent on his Draft Apartheid Tribunal Convention. See M. Cherif Bassiouni, ‘Enforcing Human Rights through International Criminal Law and through an International Criminal Tribunal’ (1994) 26 Studies in Transnational Legal Policy 347, fn 79. 159  ‘Statement by Kenyan Representative’ (as reported) (General Assembly, Third Committee, 9 October 1968).

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Africa and International Criminal Law   179 permanent International Criminal Court (ICC) would finally be established, and before the ‘Decade of International Law’ had even begun, efforts to this end were underway. While they were ongoing, a reinvigorated UN Security Council established two ad hoc International Tribunals for the conflicts in Rwanda and Yugoslavia, the era of the ‘responsibility to protect and right to punish’ had begun.160 These developments opened up the possibility of African states’ participation in a renewed international criminal law. While this participation was not in itself novel, as the previous part has illustrated, the degree was: the 1990s was the most significant chance for African states to influence—in a permanent fashion—the laws and institutions of international criminal law that, as they pointed out in 1968, had been ‘formulated in the past by the developed countries’, and to ensure that the project ‘[took] into account certain present-day realities which were of the highest importance for the young countries’. As Schabas notes, for African states the ICC held the promise of ‘a new institution that would be independent of the old system, in which all states would play an equal role, and whose work would be directed by a genuinely independent and impartial prosecutor’.161 The promise of a renewed international crim­inal law also held out hope for the victims of international crimes in Africa who were yet to receive any of the ‘international justice’ it has long-promised, despite being present absences in its workings from the outset. By its close, there was much to suggest that the decade had fulfilled its promise. While crimes committed in Africa were not officially the concern of international criminal law prior to 1990, by the century’s end, international, domestic, and ‘hybrid’ courts were making good business out of them, a dramatic break from the impunity that prevailed in past centuries for crimes committed against Africans. The ‘revolutionary’ ICC—per­man­ent and impartial (although not as impartial as African states would have liked)—promised future ‘unprecedentedness’. African states had participated at Rome with ‘astonishing enthusiasm’,162 and an African country had become the first state to ratify the Rome Statute.163 Yet, when set against the longer history of Africa and international criminal law, the ‘dramatic break’ ushered in by the 1990s breaks down (dramatically, perhaps); and so much of what seemed ‘new’ about international criminal law was in fact more of the same. The field remained thoroughly entangled with older imperial prerogatives, institutionally so in fact, notwithstanding the efforts of African states at Rome in 1998. The continued hold of international criminal law’s racialized symbolic and affective regime was clear to some at the time (and has become clearer since).164 Moreover, while the persistence of international criminal law’s past racial politics is perhaps less obvious, given the formal inclusion of Africans within it, ‘double standards’ continued to haunt the field in the 1990s. As illustrated by considering its responses to two events, both of which took place in April 1994. 160  Mahmood Mamdani, ‘Responsibility to Protect or Right to Punish?’ (2010) 4(1) J of Intervention and Statebuilding 53. 161  Schabas ‘Banality of International Justice’ (n 37) 549. 162  Schabas ‘Banality of International Justice’ (n 37) 548. 163  On 2 February 1999, Senegal became the first state to ratify the Rome Statute. 164  See e.g., Adam Branch, Displacing Human Rights: War and Intervention in Northern Uganda (OUP 2011) 182–83.

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180   Christopher Gevers

A.  April 1994 The 1994 Rwandan genocide lasted 100 days and took 800,000 lives. ‘In contrast to the Bosnia case’, Smith notes, ‘in the Rwanda case virtually all European governments used the term genocide to describe the killings while they were still ongoing’ (the US was infamously reluctant to do so for reasons of its own).165 It took less than a month for NGOs to label the events in Rwanda genocide, and before it was over they were calling for international prosecutions.166 Western states soon followed suit, and in November 1994 the UN Security Council adopted SCR 955 establishing an International Criminal Tribunal for Rwanda (ICTR), which began operating in 1995. From early on in the conflict, NGOs called for criminal trials to end the ‘culture of impunity’ in Rwanda, which they said had not only contributed to the genocide, but also harmed the international community. In Rwanda: Death, Despair and Defiance—the influential (and now infamous) 750-page ‘yellow book’ on the genocide, published less than three months after it had ended—African Rights called for the ‘culture of impunity’ itself to be put on trial.167 The language of ‘ending impunity’ took hold quickly: while the term ‘culture of impunity’ ‘had rarely been used before 1991’ its use rapidly increased thereafter, particularly from 1994 onwards.168 The events in Rwanda were central to the ascendency of this ‘anti-impunity’ agenda in the 1990s, as the Rwandan genocide was figured as both a warning and a rallying cry. A warning for what happens when the West ‘stands idly by’, and a rallying cry for it to ‘do something’ in the face of such atrocities (and increasingly to do one thing above all else: prosecute those responsible).169 In fact, when the ICTR shut down in December 2015, it called the film reflecting on its legacy ‘20 Years Challenging Impunity’. The meteoric rise of the language of ‘anti-impunity’ during the 1990s culminated in its inclusion in the preamble of the Rome Statute—which recorded the determination ‘to put an end to impunity for the perpetrators of . . . [international] crimes and thus to contribute to the prevention of such crimes’.170

165  Smith, Genocide and the Europeans (n 110) 177. The UK were similarly reluctant to do so. ibid 163. 166  See Human Rights Watch, ‘Genocide in Rwanda: April-May 1994’ (1 May 1994) 14 accessed 14 April 2019; Amnesty International, ‘A Call for UN Human Rights Action on Rwanda and Burundi’ (30 April 1994) accessed 14 April 2019. 167  Rakiya Omaar, Rwanda: Death, Despair and Defiance (African Rights 1995) 724. 168  See N-gram in Karen Engle, ‘A Genealogy of the Criminal Turn in Human Rights’ in Karen Engle, Zinaida Miller, and D M Davis (eds), Anti-Impunity and the Human Rights Agenda (CUP 2017) 15, 21 (hereafter Engle, ‘Genealogy of the Criminal Turn’). 169  Samuel Moyn, ‘Anti-Impunity as Deflection of Argument’ in Karen Engle, Zinaida Miller, and D M Davis (eds), Anti-Impunity and the Human Rights Agenda (CUP 2017) 69 (hereafter Moyn, ‘AntiImpunity’) (As Moyn notes, ‘ “Standing idly by” . . . is not the sole option besides punishment in the face of atrocity crime, let alone other forms of injustice that haunt the world’). 170  Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, preamble (here­ after Rome Statute).

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Africa and International Criminal Law   181 This ‘war on impunity’ initiated in the 1990s, however, was circumscribed from the outset. It was limited to particular forms of violence or harms that are determined to be ‘international crimes’,171 particular actors that could be held responsible for these crimes, and, as Clarke notes, above all it was limited ‘to the “now”, namely to the “present”, and the “future” ’.172 It was not about the colonial past, in Rwanda or elsewhere, no matter how recent.173 This orientation towards the future (and away from the past) was made explicit in a first draft of the Rome Statute’s preamble that called for an end to impunity only ‘for the sake of future generations’.174 Justice for the ‘present generation’ was an afterthought, while justice for the past remained largely unthinkable. Yet the ‘impunities’ of the past were stubborn. For inspiration for their draft preamble of the Rome Statute, the Andorran delegation had turned to the preamble of the United Nations.175 That preamble was drafted by Jan Smuts, who also had a hand in South West Africa becoming a mandate territory under South African control at Versailles in 1919,176 and the establishment of what would later become known as ‘apartheid’ in South Africa.177 Apartheid had come to an end in South Africa in April 1994 (and Namibia, a few years prior), and it is in international criminal law’s responses to the end of apartheid that the field’s continued racial politics are most visible. As Dugard notes, ‘[b]efore 1990 . . . it was widely believed that, if the liberation movements were victorious in their effort to overthrow the apartheid regime by force, the leaders of the regime would be tried in the same way that Nazi leaders had been tried at Nuremberg’.178 The Apartheid Convention—which at the time had been signed by

171  As Simpson puts it, international criminal law ‘reproduce[s] a dominant account of the inter­ nation­al system in which its crimes (hundreds of thousands of preventable deaths every month) are understood as accidents or by-products of international political economy or sovereignty or the free trade in machetes, while its accidents . . . or singular political acts . . . are understood as ‘crimes’. Gerry Simpson, ‘Linear Law: The History of International Criminal Law’ in Schwobel (ed), Critical Approaches to International Criminal Law: An Introduction (Routledge 2014) 170. 172  Kamari  M.  Clarke, ‘International Justice and the Politics of Sentimentality’ in Kamari Maxine Clarke, Abel S Knottnerus, and Eefje de Volder (eds), Africa and the ICC: Perceptions of Justice (CUP 2016) 90. 173  On the colonial past and the Rwanda genocide see Jose Alvarez, ‘Crime of States/Crimes of Hate: Lessons from Rwanda’ (1999) 24 Yale J of Intl L 365, 387–88, 440–41. 174 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June—17 July 1998, Official Records, Volume III, UN Doc A/CONF.183/13(Vol. Ill) 203. 175 ibid. 176  Notably, in 1926, copies of the 1918 South West Africa Blue Book had been destroyed by the authorities of the mandate territory as it was hampering the rapprochement between white settlers, an act that paved the way for white minority rule and the implementation of the policy of apartheid in that territory two decades later. 177  See Saul Dubow, Racial Segregation and the Origins of Apartheid in South Africa, 1919–36 (Palgrave Macmillan 1989) 4; Noel Garson, ‘Smuts and the Idea of Race’ (2007) 75(1) South African Historical J 153, 164. 178  John Dugard, ‘Reconciliation and Justice: The South African Experience’ (1998) 8 Transnational L and Contemporary Problems 277, 290 (hereafter Dugard, ‘Reconciliation and Justice’) (Dugard points out further that the ‘spectre of Nuremberg was held out as a threat by the liberation movements in exile’).

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182   Christopher Gevers over half the states in the world (but not a single state in the West)179—had even envisaged the UN drawing up ‘a list of individuals, organizations, institutions and representatives of States’ guilty of the crime of apartheid for future prosecution by international or domestic courts.180 However, just as the ICTR was beginning its first trials, the South African Truth and Reconciliation Commission (TRC) was granting criminal and civil amnesty to perpetrators of gross human rights violations committed during apartheid. Given the significance of struggle against apartheid globally, and uptake of inter­ nation­al criminal law during the 1990s, one might have expected some international push back against amnesty for apartheid crimes in South Africa. However, in stark contrast to Rwanda, from the outset there was little international appetite for trials. For its part, not only did the UN ‘not suggest or even consider the establishment of an ad hoc tribunal to try apartheid’s criminals despite the fact that many of the acts in question constituted international crimes, particularly crimes against humanity’,181 it played, at best, an unwitting role in the inclusion of a conditional amnesty in the negotiated settlement. Generally speaking, in the 1990s the UN ‘seemed intent on forcing the parties in South Africa to formulate their own solution to the problem’ of negotiating an end to apartheid (in contrast to the ‘interventionist approach’ in Yugoslavia, Somalia, and later Rwanda).182 However, following the ‘Boipatong massacre’ in June 1992, the ANC sent its leader Nelson Mandela to New York to address the Security Council and request inter­nation­al assistance in ending the violence. In the weeks leading up to his trip to New York, Mandela told audiences at home and abroad that the South African government’s actions were comparable to that of Nazi Germany,183 and he opened his address to the Security Council on 15 July 1992 by reminding its members that the UN had been seized with the question of apartheid ‘which [it] has determined is a crime against humanity’.184 The immediate outcome of that meeting was the dispatch of a UN envoy to South Africa to explore measures that would end the violence and facilitate the re-opening of negotiations.185 While the UN observers were in South Africa, ANC members embarked upon a week of ‘mass action’ that included mock ‘Nuremberg trials’ on the streets of Cape Town that found the apartheid leaders guilty of international crimes and sentenced them to death.186 179  By April 1994, 99 states had signed up the Apartheid Convention. 180  Article 10, Apartheid Convention (n 146). 181  Dugard, ‘Reconciliation and Justice’ (n 178) 278. 182 Peter  N.  Bouckaert, ‘The Negotiated Revolution: South Africa’s Transition to a Multiracial Democracy’ (1997) 33 Stanford J of Intl L 375, 392 (hereafter Bouckaert, ‘Negotiated Revolution’). See further UN General Assembly, Declaration on Apartheid and its Destructive Consequences in Southern Africa, UN Doc A/RES/S-16/1 (1989). 183  ‘ANC breaks off talks’ The Citizen, 22 June 1992. 184  Security Council, Provisional Verbatim Record of the 3059th Meeting, 15 July 1992, at 17. 185 See Security Council Resolution 765, UNSCOR, 3096th Mtg (1992) accessed 14 April 2019. 186  ‘ANC Unwilling to Back a General Amnesty’ The Chicago Tribune, 14 August 1992.

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Africa and International Criminal Law   183 However, when the UN Secretary-General reported back to the Security Council in August 1992, he recommended, amongst other things, the investigation of violence on both sides and the ‘immediate release of all remaining political prisoners’ that would ‘contribute greatly to improving the political climate, creating trust and burying the unhappy past’.187 The next day the ‘Goldstone Commission’—appointed by the apartheid government to look into political violence188 and headed by Richard Goldstone (at the time also sitting as a Judge on apartheid South Africa’s highest Court of Appeal)— called for the investigation of the military and police, and the provision of amnesty in order to ‘make the work of the commission more efficient’.189 The apartheid government, which had been trying for some time to ‘tie the question of an amnesty for its own forces to the freeing of the remaining prisoners’,190 seized on the idea of a ‘blanket, noquestions-asked amnesty that would cover all crimes linked to South Africa’s past’.191 Notably, at the time, Western nations had reportedly ‘already indicated support for some form of amnesty’.192 No doubt buoyed by the international support for ‘burying the unhappy past’, the apartheid government subsequently pushed through a law in November 1992 giving the president the power to grant amnesty to anyone who ‘advised, directed, commanded, ordered or performed any act with a political object’.193 The ANC rejected the measure, reportedly calling it ‘tantamount to a self-pardon by Nazi war criminals’,194 and vowed not to uphold the law. The scope, conditions, and timing of any amnesty remained a sticking point in negotiations throughout 1993, however in November—amidst the spectre of a return to outright civil strife, threats from the apartheid security apparatus over the issue of amnesty,195 and international pressure to conclude the negotiated settle­ment196—a last minute compromise was reached providing for a conditional amnesty for ‘offences associated with political objectives and committed in the course of

187  United Nations Security Council, Report of the Secretary-General on the Question of South Africa, 7 August 1992, 16, 18. 188  Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation, appointed by President FW de Klerk on 24 October 1991. 189  ‘S. Africa Panel: Investigate Police, Military’, The Chicago Tribune, 9 August 1992. 190  Lynn Berat, ‘South Africa: Negotiating Change?’, in Naomi Roht-Arriaza, Impunity and Human Rights in International Law and Practice (1995), 267, at p. 272. 191  ‘ANC Unwilling to Back a General Amnesty’, The Chicago Tribune, 14 August 1992. 192  ‘ANC Unwilling to Back a General Amnesty’, The Chicago Tribune, 14 August 1992. 193  Further Indemnity Act 151 of 1992. See Berat, ‘Negotiating Change?’, 272–3. 194  Human Rights Watch, Accounting for the Past: The Lessons for South Africa from Latin America, 23 October 1992. 195 Lynn Berat and Yossi Shain, ‘Retribution or Truth-Telling in South Africa? Legacies of the Transitional Phase’ (1995) 20(1) Law & Social Inquiry 163, 182–83 (‘[t]he agreement came after bruising negotiations among the government, the security forces, and the ANC in response to a request for a general amnesty made to Nelson Mandela by the Police Commissioner and the recently retired head of the National Intelligence Service. In their request, the two men argued that, in return for the guarantee of amnesty, the security forces would “guarantee stability” during the transition period’ citing ‘Amnesty for Political Crimes Is Agreed’ South Africa Rep (10 December 1993) 3)). 196  Bouckaert, ‘Negotiated Revolution’ (n 182) 394–95.

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184   Christopher Gevers the conflicts of the past’.197 The upshot of this compromise was the Promotion of National Unity and Reconciliation Act, adopted by South Africa’s new democratic parliament,198 which established the vaunted TRC, the first such commission em­powered to grant amnesty for gross human rights violations.199 Few international lawyers (most of them South African) noted the apparent contradiction between the TRC in South Africa and the concurrent international trials taking place in Arusha and The Hague. For his part, John Dugard surmised that ‘the inter­nation­al community, in a state of euphoria over the abandonment of apartheid, was in no mood to set up an international tribunal’,200 and in any event the establishment of an ad hoc tribunal was impossible as ‘the South African situation was no longer seen as a threat or potential threat to international peace’.201 While Richard Goldstone—who had since become the First Chief Prosectuor of the ICTY and ICTR—argued that the difference was in ‘magnitude’: crimes of ‘Nazi Germany, the former Yugoslavia, or Rwanda’ were too egregious to be left subject to national amnesties, or even national courts: the crimes of apartheid were not, apparently.202 Even less attention was paid to the prospect of other states prosecuting the crimes of apartheid under the principle of universal jurisdiction,203 even though over half the world’s states had undertaken to do so under the Apartheid Convention.204 In fact, in 1980, Bassiouni had confidently predicted that ‘[t]he greatest threat to individuals residing in States with apartheid as policy would be in the future’, as ‘offenders’ freedom of travel’ would gradually become limited owing to the threat of either prosecution by states themselves under the Apartheid Convention, or extradition to the Apartheid Tribunal by those states.205 Even when families of prominent apartheid victims, brought a challenge to the TRC in South Africa’s new Constitutional Court 197  The compromise was appropriately captured in the epilogue of the interim constitution. The resultant amnesty law also made amnesty conditional on the ‘full disclosure of all the relevant facts’. See section 3(1)(b), Promotion of National Unity and Reconciliation Act, 34 of 1995. 198  Immediately after the elections in 1994, Mandela ‘ruled out Nuremburg-style trials for those who committed crimes in defense of apartheid’, citing amongst other things ‘the need to retain the confidence of the white minority and international investors to help build a new nation’. John Battersby, ‘Mandela Offers Amnesty As Key to Reconciliation’, The Christian Science Monitor, (Johannesburg, 2 May 1994) accessed 19 April 2019. 199  M Nothling Slabbert, ‘Debunking a Meta-Narrative: A Few Reflections on South Africa’s Truth and Reconciliation Commission One Decade after Its Final Report (2010) 73 J of Contemporary RomanDutch L 24, 25. 200  John Dugard, ‘Is the Truth and Reconciliation Process Compatible with International Law? An Unanswered Question? (1997) 13 South African J on Human Rights 258 (hereafter Dugard, ‘Truth and Reconciliation Process’). 201  ibid 291 (adding that ‘political reality’ made domestic trials in South Africa equally impossible). 202  Richard J. Goldstone, ‘Justice as a Tool for Peace-Making: Truth Commissions and International Criminal Tribunals’ (1996) 28 New York University J of Intl L & Politics 485, 496–97. 203  See, however, Neil Boister and Richard Burchill, ‘The Implications of the Pinochet Decisions for the Extradition or Prosecution of Former South African Heads of State for Crimes Committed under Apartheid’ (1999) 11 African J of Intl & Comparative L 619. 204  Article IV(b), Apartheid Convention (n 146). 205  Study on Apartheid Convention (n 148) 17–8.

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Africa and International Criminal Law   185 on the grounds that it violated international law,206 and were dismissed on legally ­suspect grounds (in which the Court momentarily forgot about crimes against humanity),207 this decision also ‘escaped significant direct criticism’ from international lawyers.208 In fact, not only was the contradiction overlooked, South Africa’s TRC was feted by the international community (and many ‘anti-impunity’-minded international lawyers209 and NGOs) as ‘the best example of restorative justice ideals and practices on a national level’.210 The international community and NGOs subsequently mythologized the TRC into an ‘ideological metanarrative’ of restorative justice in a manner that, Lin argues, belies not only its deeply political origins, but also masked its failings and domestic discontent (that have only grown with time).211 This failure to punish apartheid crimes in the 1990s has been further obscured by the subsequent ‘criminal turn’ amongst international lawyers and NGO’s alike since then, in which criminal retribution has firmly replaced the once-ascendant ‘restorative justice’ and its preferences for truth, peace, reconciliation, and forgiveness.212 Amnesties now seem ‘so 90s’, 206  Azanian Peoples Organization (AZAPO) and Others v. President of the Republic of South Africa and Others 1996 (4) SA 672 (CC) (25 July 1996). The applicants relied considerably on an article by another South African international lawyer, Ziyad Motala, that argued that the TRC Act violated both domestic and international law and was therefore invalid. See Ziyad Motala, ‘The Proportion of National Unity and Reconciliation Act, the Constitution and International Law’ (1995) 28(3) The Comparative & Intl L J of Southern Africa 338. 207  The Constitutional Court remembered them a few years later, but only after the TRC’s work was complete, and confidently declared not only that apartheid was a crime against humanity but that South Africa was under an international obligation to prosecute them. See S v. Basson 2005 (1) SA 171 (CC) and S v. Basson 2007 (3) SA 582 (CC). See further Christopher Gevers, ‘International Criminal Law in South Africa’ in Erika De Wet, Holger Hestermeyer, and Rüdiger Wolfrum (eds), The Implementation of International Law in Germany and South Africa (Pretoria University Law Press 2015) 411–12 (hereafter Gevers, ‘ICL in South Africa’) . 208  Engle, ‘Genealogy of the Criminal Turn’ (n 168) 22. See however, Dugard, ‘Truth and Reconciliation Process’ (n 200) 258; Nthabiseng Mogale, ‘Ten Years of Democracy in South Africa: Revisiting the AZAPO Decision’ in Wessel Le Roux and Karin van Marle (eds), Law, Memory and the Legacy of Apartheid: Ten Years After AZAPO v. President of South Africa (Pretoria University Law Press 2007); Gevers, ‘ICL in South Africa’ (n 207) 412–16. 209  Taking one international lawyer as an example, Engle points out that the same individual argued that South Africa’s TRC’s complied with international law in 2000 (the same year that he convinced the Inter-American Court of Human Rights that Peru’s amnesty law violated international human rights law), only to recant a decade later by arguing that the TRC would no longer meet the requirements of international law. Engle, ‘Genealogy of the Criminal Turn’ (n 168) 25. 210  Carrie J. Niebur Eisnaugle, ‘An International Truth Commission: Utilizing Restorative Justice as an Alternative to Retribution’ (2003) 36 Vanderbilt J of Transnational L 209, 224. 211 Olivia Lin, ‘Demythologizing Restorative Justice: South Africa’s Truth and Reconciliation Commission and Rwanda’s Gacaca Courts in Context’ (2005) 12 ILSA J of Intl & Comparative L 41 (pointing out the ‘critical gap [that] exists between the ideological weight that the TRC carries within the international community and the political realities initiating and controlling the TRC’s development’). See also Tshepo Madlingozi, ‘Good Victim, Bad Victim: Apartheid’s Beneficiaries, Victims and the Struggle for Social Justice’ in Wessel Le Roux and Karin van Marle (eds), Law, Memory and the Legacy of Apartheid: Ten Years After AZAPO v President of South Africa (Pretoria University Law Press 2007). 212  See generally Engle, ‘Genealogy of the Criminal Turn’ (n 168).

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186   Christopher Gevers replaced by the ‘fight against impunity’ spearheaded by international criminal law. Buried with them was the internationally sanctioned impunity enjoyed by the numerous per­pet­rators of apartheid crimes.

B.  A Present Absence, Almost: Apartheid (and Rwanda) at Rome, 1998 By 1998, ‘international justice’ and apartheid have already become so dissociated for international criminal lawyers that the crime of apartheid was almost absent from the Rome Statute altogether. As noted above, it was certainly present at the outset, as Bassiouni’s Draft Apartheid Tribunal was the blueprint for the ILC’s 1994 Draft Statute for an International Criminal Court. Moreover, in its Commentary to the earlier 1991 Draft Code of Crimes Against Peace and Security of Mankind, the ILC noted that the crime of apartheid ‘is nowadays so deeply condemned by the world’s conscience that it was inconceivable . . . to exclude it from a code which punishes the most abominable crimes that jeopardize the peace and security of mankind’.213 However, in its 1996 Draft Code of Crimes Against Peace and Security of Mankind the Commission did just that (as happened in early drafts of the Statute in Rome in 1998). It was only at ‘an advanced stage of the Rome Conference’, and at the insistence of South Africa and other African states, that the crime of apartheid was included in the Rome Statute at all.214 It was also left to African states (and Haiti) to call attention to the crimes of the past at Rome in 1998, more generally. The Organisation of African Unity (OAU) representative noting that ‘Africa had a particular interest in the establishment of the Court, since its peoples had been the victims of large-scale violations of human rights over the centuries: slavery, wars of colonial conquest and continued acts of war and violence, even in the post-colonial era’.215 In calling attention to apartheid and past crimes in 1998, African states might have had a déjà vu, sort of. Thirty years prior, they had successfully fought off attempts by Western states to exclude the crime of apartheid from the 1968 Convention on the Non-Applicability of Statutory Limitations, on now familiar grounds (including 213 ILC, Yearbook of the International Law Commission, 1991, Volume II, Part Two (United Nations 1994) 102 (emphasis added). Notably, the 1991 Code also included a crime of ‘Colonial domination’ (see art 18), that was subsequently dropped as well. 214  Roger Clark, ‘Crimes Against Humanity and the Rome Statute of the International Criminal Court’ in Mauro Politi and Guiseppe Nesi (eds), The Rome Statute of the International Criminal Court: A Challenge to Impunity (Ashgate 2001) 87. 215  United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June—17 July 1998, Official Records, Volume II, UN Doc A/CONF.183/13(Vol. II) 104, 116 (hereafter Rome Proceedings II). South Africa, speaking on behalf of the Southern African Development Community (SADC), also reminded delegates of the link between ‘the crimes committed under the apartheid system’ and the establishment of the ICC. Rome Proceedings II at 65. A few other delegations mentioned apartheid, but focused on the technical aspects of the crime generally, not apartheid South Africa.

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Africa and International Criminal Law   187 European concerns that it ‘was too vague and was out of place in a legal instrument’216 and American pleas for concessions to ensure ‘the widest possible acceptance of the draft convention’).217 However, while in 1998 African states sought to redirect attention from an exclusive focus on future crimes (at the expense of crimes of the past), in 1968 their struggle was to avoid the exclusive focus on past crimes (at the expense of crime of the present and future). At the time, Western states were keen to limit the 1968 Convention to Nazi crimes, while African states (and other Third World allies) aimed to ensure that it was ‘applicable not only to the events which had taken place in Europe between 1939 and 1945, but also to [international crimes of] the present . . . and the future’ (i.e. apartheid).218 However, it would seem that the time is never the right time to try certain crimes (or, perhaps, the time is always right to never try such crimes). In 1968 the representative from recently-independent Kenya pleaded, as if addressing delegates in Rome 30-years later: It was important that the convention should apply to crimes past, present and future. Apartheid was one of the gravest crimes against humanity being committed today and it would render the draft convention meaningless if the words ‘including in­human acts resulting from the policy of apartheid’ were omitted.219

While apartheid was almost absent from Rome in 1998, ‘Rwanda’ was hyper-visible (perhaps portending things to come). So visible in fact that the Rwandan delegation told the plenary that it ‘hoped that the many references made to the genocide that had involved the people of his country in 1994 denoted a desire to bring the organizers of that genocide to justice’.220 If the association of international criminal law and apartheid (for reasons well-known at this point) had quickly become almost unthinkable, the association of international criminal law and the Rwandan genocide had just as quickly become almost unavoidable. Moreover, it was not just the racial politics of the field that undermined the proclaimed revolution at Rome, international criminal law’s response to the Rwanda genocide also recalled its symbolic regime and imperial entanglements which, as a result, were also present at Rome in 1998. First, the 1994 Rwandan genocide became the post-Cold War touchstone for Western intervention (and the consequences of not doing so), a ‘muscular humanitarianism’ that had its roots in part in Biafra. In fact, one of the first notable calls for ‘humanitarian (military) intervention’ in Rwanda was made by Bernard Kouchner, the ‘renegade’ doctor who broke away from the ICRC during the Biafran war. The UN famously did not intervene forcibly in Rwanda in 1994, and by some accounts the ICTR was established

216  UNGAOR, 23rd Sess, C3, 1566th Mtg, 9 October 1968, 1. 217 ibid. 218  Delegate from United Republic of Tanzania, UNGAOR, 23rd Sess, C3, 1568th Mtg, 10 October 1968, 2 (emphasis added). 219  UNGAOR, 23rd Sess, C3, 1566th Mtg, 9 October 1968, 1. 220  Rome Proceedings II (n 215) 103.

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188   Christopher Gevers out of the west’s ‘guilt’ for not doing so.221 While some questioned the legality of these ad hoc tribunals, ‘many human rights advocates almost immediately claimed [them] . . . as a human rights project’.222 In doing so, these actors not only were ‘legitimizing the dominant structures of global governance’,223 they were placing them at the centre of the resurgent international criminal law architecture. More than this, the West’s ‘non-intervention’ in Rwanda (as it had in Biafra) became a rallying to ‘do something’, or a warning of what happened when it did not. The central conceit of this refrain in Rwanda was that the west was not already present and already doing something. As Orford argues, the ‘imaginative geography’ of such interventions assumes that ‘the international community is absent from the scene of violence and suffering until it intervenes as a heroic saviour’, whereas this is seldom the case, and it certainly was not the case in Rwanda.224 The effect of this ‘imaginative geography’ for  international criminal law is to place distance causally, and therefore criminally, between the ‘scene of violence’ and the ‘benevolent West’. Through its operation in Rwanda (in contradistinction to Africans at Nuremberg); states, international institutions, and non-state actors in the West were removed from the ‘crime scene’, of which they were well-aware, and absolved of responsibility for actions in which they were at the very least implicated. These continued imperial entanglements followed international criminal law into the drafting of the Rome Statute, most obviously in the power granted to the Security Council to refer and defer situations to the ICC.225 It was a power reluctantly agreed to by African states in Rome (who had unanimously opposed any role for the Security Council beforehand),226 as a necessary evil for the purposes of consensus and perhaps with the faint hope that the ICC might be a means to challenge imperial prerogatives. When doing so, African delegates at Rome ‘re-iterated the basic principle that the Court should contribute to furthering the integrity of States generally, as well as the equality of States within the general principles of international law’.227 Second, the representation of the Rwandan genocide in the west vividly recalled the symbolic regime of Biafra (and Nuremberg, and Versailles). To the central figure of the 221  Kingsley Moghalu, Rwanda’s Genocide: The Politics of Global Justice (Palgrave Macmillan 2005) 49 (noting that the ICTR was established so that the international community ‘could look itself in the face and say: “we did do something” ’). 222  Engle, ‘Genealogy of the Criminal Turn’ (n 168) 40. 223  Nesiah, ‘Doing Justice to History’ (n 38) 108. 224 Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (CUP 2003) 85 (hereafter Orford, Reading Humanitarian Intervention). 225  See Rome Statute (n 170) arts 13(b) and 16. 226 See Dakar Declaration on an International Criminal Court, adopted by the OAU Council of Ministers in February 1998, and thereafter by the 34th Assembly of Heads of State and Government of the OAU, meeting at Ouagadougou in June 1998 accessed 19 April 2019; SADC Common Position, adopted at Pretoria in September 1997. 227 Dullah Omar (South Africa), speaking on behalf of the Southern African Development Community (SADC), Rome Proceedings II (n 215) 65 (emphasis added).

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Africa and International Criminal Law   189 ‘African victim’ of Versailles, and the ‘European saviour’ of Biafra, Rwanda re-introduced the ‘African savage’ as simply the ‘devil’; a ‘present absence’ at Nuremberg, but absent no more. All three of these figures were present on the May 1994 cover of Time magazine, which contained the image of a Rwandan mother and child ‘beseeching intervention’,228 across that was written in large font: ‘ “There are no devils left in Hell,” the missionary said, “They are all in Rwanda” ’.229 Despite the introduction of a per­man­ent court in 1998, with an independent prosecutor and potentially wide-ranging jurisdiction, the symbolic regime of Versailles, Nuremberg, and Biafra would prove remarkably durable for the ICC. Particularly insofar as African victims230 and per­pet­rators231 were concerned, which would remain its sole concern for some time to come. Looking back, notwithstanding the significant changes brought about in the 1990s to international criminal law, and in particular in respect of its relationship to Africa which is said to have begun then (or at least begun anew), in many respects it continued to reflect (and repeat) its unacknowledged past. In particular, the role that the Draft Apartheid Tribunal Convention played in the drafting of the Rome Statute recalls the story of the Blue Books at Versailles, where crimes committed against black Africans were present for the purposes of establishing a ‘first’ for the project (a permanent international tribunal, successfully this time around), but absent when it came to the justice it was to dispense. This absence was compounded this time around in two respects. First, not only were the crimes of apartheid legally excluded from the justice to be dispensed by the ICC (temporally, and almost substantively as well), they have in the event been excluded from the justice to be dispensed by the emerging regime of international criminal law as a whole (be it by another inter­nation­al tribunal, or a domestic court). The fact that there is yet to be a single prosecution for the countless international crimes committed during apartheid—either as the crime of apartheid, or acts constituting crimes against humanity—is staggering. Second, this absence in the event is further compounded by their absence in the retelling: namely the silence that surrounds the role of apartheid in the historiography of the field. It would after all be possible to tell a slightly less triumphant history of international crim­inal law in the 1990s that included the role of the Draft Apartheid Tribunal Convention in the creation of the Rome Statute, or a considerably less triumphant history of the decade that recounts how the crime that the ILC considered ‘so deeply condemned by the world’s conscience’ as to be unavoidable at its outset, had been wholly forgiven and largely forgotten by international criminal law at its close.232

228  Paraphrasing Said, Culture and Imperialism (n 26) 9. 229  Time, vol 143, no 20 (16 May 1994) accessed 19 April 2019. 230  See Christine Schwöbel-Patel, ‘The “Ideal” Victim of International Criminal Law’ (2018) 29(3) European J of Intl L 703. 231  See Kamari Maxine Clarke, ‘Refiguring the Perpetrator: Culpability, History and International Criminal Law’s Impunity Gap’ (2015) 19(5) Intl J of Human Rights 592. 232 ILC, Yearbook of the International Law Commission, 1991, Volume II, Part Two (United Nations 1994) 102 (emphasis added).

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190   Christopher Gevers

VI.  Concluding Remarks There are 14 accused, all of them are Africans. There are more than 5 million African victims displaced, more than 40,000 African victims killed, thousands of African victims raped. Hundreds of thousands of African children transformed into killers and rapists. 100% of the victims are Africans. 100% of the accused are African.233

This chapter has tried to temporally and conceptually re-frame the relationship between ‘Africa’ and ‘international criminal law’, suggesting that it is much longer and more complex than is often suggested. Doing so places the ongoing debates about the field’s ‘African problem’234 in an altogether different light: the question becomes not whether international criminal law (or the ICC) might operate on neo-colonial and racist lines, but whether it might have been anything else (or might yet be). The signs are not encouraging for either international criminal law or the ICC. The difficulty that its defenders face is that the orthodox narrow framing of this relationship generates a mystery to be solved by its critics, namely: how the ICC came to focus solely on African crimes. This, however, assumes that it ought to have been otherwise. Opening up this relationship, as this chapter has done, not only unsettles this assumption, it arguably removes the mystery altogether. In the light of the longer history of this relationship (and its resonances in the present) there is nothing remarkable about the fact that the ICC has only prosecuted Africans, and not a single European, in almost two decades of operation. The hypervisibility of Africans in international criminal law today, exemplified in the statement by the former prosecutor that ‘100 per cent of the victims are Africans. 100 per cent of the accused are African’, is not remarkable because, from its inception, Africans— and African victims in particular—have been an important part of the field’s repertoire. Nor is it to be celebrated: the ‘present absence’ of Africa and Africans in the past has seldom been to their advantage. Why would the current iteration arrangement prove different? In fact, rather than transcend the racial politics, imperial entanglements, and the racialized symbolic and affective regime of the field’s past, the ICC has arguably entrenched them. What could better confirm the ‘image of Africa’ and black Africans (and of Europe and white Europeans)—and reproduce the affective regime of Versailles, Nuremberg, Biafra, and Rwanda—than if an international court, established through the neutral and apolitical application of the rule of law by the brightest legal minds, concluded, on behalf of humanity, that the ‘greatest crimes known to mankind’ were committed exclusively by Africans, and against innumerable African victims (mostly women 233 Luis Moreno Ocampo, ‘Working with Africa: The View from the ICC Prosecutor’s Office’ (Symposium on ‘The ICC that Africa Wants’, Stellenbosch, 9 November 2009). 234  Solomon Ayele Dersso, ‘The ICC’s Africa Problem: A Spotlight on the Politics and Limits of International Criminal Justice’ in Kamari Maxine Clarke, Abel S Knottnerus, and Eefje de Volder (eds), Africa and the ICC: Perceptions of Justice (CUP 2016) 61.

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Africa and International Criminal Law   191 and children), the latter of whom, the former prosecutor’s statement suggests, are waiting to be ‘transformed into killers and rapists’ themselves.235 Moreover, what better way to redeem the existing global governance regime if it is not only displaced from the scene of this carnage,236 but also if both the older post-imperial institutions (chiefly, the Security Council) and the newer technologies of governance (such as rule of law technocrats) are presented as the only way to address it. All the while the ‘profoundly uneven global political economy’ that underpins this carnage ‘disappears’.237 In fact, the above statement by the former prosecutor might even be read iron­ic­al­ly, as confession rather than defence. So too might the title of the conference where it was delivered be re-read ironically, as not the ‘The ICC that Africa Wants’ but the ‘The Africa that the ICC wants’: not just discursively, but politically and economically as well. The effect, moreover, is not only to naturalize a certain present, but a version of the past as well. As exemplified once again, although this time in even fewer words, by the former prosecutor in a 2017 tweet, ‘African bias cover up African killers. Holocaust denial cover up Nazi crimes’. As at Nuremberg, ‘European’ crimes are particularized to certain actors (i.e., Nazi’s), while ‘Africans’ act collectively and permanently, their agency being subsumed by their identity (they don’t act, they are); paraphrasing Fanon, their criminality is ‘written into the nature of things, of the thing which is biologically organized’.238 As the burden shifts onto the project’s defenders to show why, in light of this history, the ICC’s ‘Africa Problem’ is a mystery at all, the puzzle becomes theirs to solve. They need to account for how a formally neutral, globally-staffed institution, applying a universal law, came to focus solely on African crimes, in order to show that it need not have been the case, and that the ICC or at least the project of international criminal law can be reformed yet. Here, complex arguments (usually raised by critics) as to why the ICC might be structurally racist or neo-colonial, become defences of why it is not wholly or irredeemably so (and simpler arguments about its case selection based on overt neocolonial conspiracies become a distant dream). Structural explanations of its focus on Africa—the preponderance of conflicts, the political economy of international crimes, the need to bolster institutional legitimacy through pursuing ‘easy’ targets, the ‘necessary evil’ of Great Power support—become sights of intervention and remedial action to ‘save the ICC from itself ’. However, aside from the fact that international criminal law’s defenders have generally ignored or dismissed structural arguments of this sort out of hand (and, as discussed below, are likely to continue to do so), the immediate difficulties with re-working them in defence of the ICC are three-fold. The first is that there is a lot of structure 235  Returning to Mills’ ‘Racial Contract’, black African victims are present in order to implicate black African perpetrators: a globalized iteration of hyper-policing that was traditionally assigned to the ‘coercive arms of the state . . . as the enforcers of the Racial Contract’. Mills, Racial Contract (n 28) 84. 236 Orford, Reading Humanitarian Intervention (n 224) 85. 237  Clarke, ‘Making of the African Warlord’ (n 5) 7. 238 Fanon, The Wretched of the Earth (n 57) 302.

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192   Christopher Gevers involved in producing these outcomes, and at some point the whole starts to look like the sum of its parts. The second is that many of the actors involved in the field today were instrumental in the conceptualization and implementation of these structures in the Rome Statute. The third is that these actors have ‘doubled-down’ on many of these structures since the ICC came into operation: the prosecutor has defined gravity narrowly and solicited self-referrals, the Court has operated willingly in the shadow of the Security Council, NGOs have further empowered institutions and actors in the North over states in the South through ‘creeping cosmopolitanism’,239 and the symbolic and affective regime has been profited from240 and ‘re-worked’ for a neoliberal age241 (all with ‘distinctive and repetitive geopolitical and distributive patterns’).242 In the final analysis, however, debates about the relationship between Africa and international criminal law are likely to remain narrow and unproductive for some time to come; and the call made in this chapter to re-tell the project’s past to ‘un-silence’ the roles played by Africa and Africans, and how they resonate in the present, is likely to fall on deaf ears. In Playing in the Dark, Toni Morrison argues that even today ‘silence and evasion’ continues to blunt critical and difficult conversations about the place of Africans and African-Americans in American letters, and in society more ­generally. Similarly, difficult conversations about Africa and international criminal law continue to be met with ‘silence and evasion’, both of which have something to do with the discourse of ‘impunity’. First, the history of the field is unlikely to be re-told as this past has been silenced in part because ‘the heightened attention to the fight against impunity has all but eclipsed the intertwined history and legacy of impunity that has accompanied every attempt at international justice’.243 Even Bassiouni himself forgot about the crimes of apartheid when, in 2009, he set out the evidence for why ‘[i]n all of the post-World War II conflicts, there has been so much impunity and so little accountability’ (although, tellingly, he did remember ‘Biafra in the early 1960s [sic]’).244 Returning to the analogy of the Haitian revolution, Trouillot argues that this historical event was silenced, then and now, not because of a lack of historical ‘facts’ (even misstated ones), but because of how history continues to be narrated: it was rendered a ‘distracting footnote within [the] narrative order . . . of global domination’ because it contradicted ‘most of what the West has told both itself and others about itself ’.245 As a result, no single ‘great book nor even a substantial increase in slave resistance studies will fully uncover [this] silence’; rather, it 239 Padraig McAuliffe, ‘From Watchdog to Workhorse: Explaining the Emergence of the ICC’s Burden-Sharing Policy as an Example of Creeping Cosmopolitanism’ (2014) 13(2) Chinese J of Intl L 259. 240  Christine Schwöbel-Patel, ‘Spectacle in International Criminal Law: The Fundraising Image of Victimhood’ (2016) 4(2) London Rev of Intl L 247. 241 Kamari M. Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (CUP 2009) ch 2. 242  Nesiah, ‘Doing Justice to History’ (n 38) 100. 243  ibid 96. 244 Cherif  M.  Bassiouni, ‘International Criminal Justice in Historical Perspective: The Tension Between States’ Interests and the Pursuit of International Justice’ in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (OUP 2009) 138. 245 Trouillot, Silencing the Past (n 25) 107.

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Africa and International Criminal Law   193 will persist ‘as long as the history of the West is not retold in ways that bring forward the perspective of the world’.246 The same could be said of histories of international criminal law currently narrated as a progressive ‘struggle against impunity’, and as part of the story the West tells about itself and its ‘others’, where past impunities of the sort recounted here are necessarily rendered distracting footnotes. Second, attempts to engage critically with international criminal law’s relationship with Africa and Africans is likely to continue to be met with evasion. As Mégret notes, the ICC’s ‘almost cartoonesque’ overrepresentation of Africans has not, as one might have expected, ‘led to a more deliberate and introspective soul-searching, and perhaps even to a sophisticated effort at grappling with questions of race and racism’, but has rather led to ‘blanket denials of racism and claims that the ICC is “on the side” of, almost invariably racialized, victim populations’.247 Yet, as critical race theorists have pointed out repeatedly, silencing race and racism by ‘defer[ring] to the unseen shape of things’248 does not make it go away, quite the opposite. As Morrison notes, ‘The world does not become raceless or will not become unracialized by assertion. The act of enforcing racelessness . . . is itself a racial act’.249 Moreover, Morrison points out that this ‘habit of ignoring race’—often ‘understood to be a graceful, even generous, liberal gesture’—blunts critical and difficult conversations, and ‘forclose[s] adult discourse’.250 Along with the silence of its ‘racial blindness’, the project’s evasive rhetoric of ‘antiimpunity’ has been central to foreclosing ‘adult discourse’, about both the ICC and international criminal law more generally. Through its deflection of arguments, Moyn points out, ‘the rhetoric of anti-impunity’ has become an important part of ‘how international criminal accountability and especially the ICC are routinely justified, or more ac­cur­ ate­ly, not justified’.251 In this sense, as in many others, the field and its relationship to Africa remains unchanged since Versailles: it continues to resist both uncomfortable stories about its past and their implications for its present, and ‘resist with impunity’.

246  ibid 106–07. 247  Frédéric Mégret, ‘The Invisibility of Race at the ICC: Lessons from the US Criminal Justice System’ (forthcoming). Worse still, familiar tropes have emerged to dismiss them out of hand as ‘emotionally laden accusations of “neo-colonialism” ’, to be contrasted with ‘more rationally sustained arguments about the proper relationship between peace and justice’. Harmen van der Wilt, ‘Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States’ (2011) 9 J of Intl Crim Justice 1043, 1043–44. 248 Patricia J. Williams, The Alchemy of Race and Rights (Harvard UP 1991) 49. 249 Morrison, Playing in the Dark (n 4) 46. See further Mills, Racial Contract (n 28) 75–78. US critical race theorists have consistently critiqued such ‘color-blind’ approaches to race and racism. Gotanda, for example, argues that ‘concepts such as race neutrality and nonrecognition can be thought of as legal fictions which serve to legitimate racial subordination’. Neil Gotanda, ‘A Critique of “Our Constitution Is Color-Blind” ’ (1991) 44(1) Stanford L Rev (1991) 1, 23. 250 Morrison, Playing in the Dark (n 4). 251  Moyn, ‘Anti-Impunity’ (n 169) 69.

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Chapter 8

On R egiona l Cr i m i na l Cou rts as R epr e sen tati v e s of Politica l Com m u n itie s The Special Case of the African Criminal Court Harmen van der Wilt

I. Introduction Criminal justice is mainly interested in the question of who bears responsibility for what. Less attention is paid to the issue to whom—that is, to which entity or body—the offender has to answer for his crime. That need not surprise us much, as the solution is often rather self-evident. In the dominant paradigm of the nation-state, as Anthony Duff argues, a person is held to account for his wrongdoing by the political community of citizens.1 Social contract theories explain how people living together in a community agree to delegate to a representative body the power to decide what behaviour should be (dis)qualified as ‘criminal’, what punishment such offences deserve, and what kind of procedure should be followed to resolve these issues. In meting out justice, criminal courts ultimately act on behalf of that political community of citizens. Beyond the context of the nation-state, in the realm of international criminal justice, it is more difficult to answer the question of to which body the perpetrator owes responsibility. From a strictly legal point of view, it is undoubtedly correct to assert that 1 RA Duff, ‘Responsibility, Citizenship, and Criminal Law’ in RA Duff & Stuart Green (eds) Philosophical Foundations of Criminal Law (OUP 2011) 125, 137 (hereafter Duff, ‘Responsibility’).

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On Regional Criminal Courts   195 the authority of international criminal courts and tribunals is predicated on the consent of states, either directly, as in the treaty-based International Criminal Court (ICC), or more indirectly, as in the ad hoc tribunals that have been established by a resolution of the Security Council. By implication one may be inclined to hold that ‘such inter­nation­al criminal courts are acting on behalf of the more local political communities within which the crimes were committed, and are still holding the defendants responsible as citizens to their following citizens in those political communities.’2 This is at least one possible answer that can be given to the question of to whom defendants in inter­nation­al criminal courts are responsible. However, Anthony Duff immediately proposes an alternative option where he suggests that perpetrators of international crimes can be directly held accountable to humanity as a whole.3 Such a representation hints at the existence of a ‘community of mankind’, analogous to the political community of the nation-state, that is at least united in its abhorrence and condemnation of heinous crimes. While this concept of a ‘common humanity’ has a certain moral intuitive appeal, it has been severely criticized as well by those who are sceptical of ‘cosmopolitanism’. David Luban, denying that the international community can be considered as a ‘political community’, portrays the former as ‘something of a gaseous invertebrate under the classical Westphalian theory of equal sovereign states.’4 Michael Walzer, in his reply to Martha Nussbaum’s plea for a ‘cosmopolitan education’, contests that he is a citizen of the world, adding that he is not ‘even aware that there is a world such that one can be citizen of.’5 And Immi Tallgren rhetorically inquires who the ‘we’ of the international community stands for and with what moral or legal authority it speaks, ­suggesting that ‘we-talk’ may serve as a cloak for world-wide ­political control and exclusion.6 In a more politicized context, the cosmopolitan stand, as extolled by the ICC, has been censured by the African Union. Largely prompted by its chagrin over the preponderance of African situations before the ICC, the Union has come to favour an alternative ‘African justice for Africans’.7 To that purpose, the African Union adopted in June 2014 the ‘Malabo Protocol’, with an annex that provides for the establishment of a Criminal

2  RA Duff, ‘Criminal Responsibility, Municipal and International (Draft)’ (2006) accessed 17 May 2016, 1 (hereafter Duff, ‘Criminal Responsibility’). 3  ibid 2. 4  David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in Samantha Besson and John Tasioulas (eds) The Philosophy of International Law (OUP 2010) 577. 5  Michael Walzer, ‘Spheres of Affection’ in Joshua Cohen (ed) For Love of Country: Debating the Limits of Patriotism—Martha C Nussbaum with Respondents (Boston 1996) 125. 6  Immi Tallgren, ‘The Voice of the International: Who is Speaking?’ (2015) 13(1) Journal of International Criminal Justice 135. 7 On these developments and their background, see Charles Chernor Jalloh, ‘Regionalizing International Criminal Law?’ (2009) 9(3) Intl Crim L Rev 445; and Ademola Abass, ‘The Proposed International Criminal Jurisdiction for the African Court: Some Problematical Aspects’ (2013) 60(1) NILR 27 (hereafter Abass, ‘The Proposed International Criminal Jurisdiction’).

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196   Harmen van der Wilt Chamber within the institutional context of the African Court of Justice and Human and Peoples’ Rights.8 The Protocol requires 15 ratifications to enter into force.9 This chapter intends to explore the claim that continents can qualify as political communities of citizens whose interests can be protected by criminal law and who can therefore be represented by regional criminal courts.10 To that purpose, I first will address the relationship between political communities and criminal law (Part II). Drawing upon the rich theoretical work of Emile Durkheim and Antony Duff, I will discuss the social functions that criminal law is supposed to serve. The central hypothesis of this contribution is that, in order to reach a minimum threshold of ‘political community’ that deserves protection by a common criminal law, the members of that community should share a number of values and interests whose infringement triggers the responsibility of those who have threatened or violated those interests towards the community. In Part III, I apply the findings of the previous part to the regional context, by investigating the rationales of regional criminal law enforcement in view of the concept of a ‘continent’ as an intermediary between the state and the international community. Part IV shifts the attention to the African situation by inquiring whether the subject matter jurisdiction of the future African criminal court, as envisaged in the Malabo Protocol, reflects the common interests of African nations and people. Moreover, it will attempt to shed some light on the position that the African criminal court will occupy between the ICC and domestic jurisdictions. Part V rounds up this essay with a couple of final reflections.

II.  The Social Function of Criminal Law Durkheim famously postulated that criminal punishment is the expression of the collective consciousness. Crimes elicit passionate repressive reaction because they are universally condemned by the members of a society and strike at the most precious and deeply held values of those members.11 Durkheim took the public consciousness as his point of departure and reversed the causal order between the egregiousness of the crime 8  Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (adopted 27 June 2014) STC/Legal/Min/7(I) Rev. 1 with Annex: Statute of the African Court of Justice and Human and Peoples’ Rights (African Union). 9  At the time of writing, the Protocol has been ratified by five African states: Kenya, Benin, CongoBrazzaville, Guinea Bissau, and Mauretania. 10  For an earlier (concise) analysis of the topic, see Harmen van der Wilt, ‘Reflections on the Prospects for Regional Criminal Courts: Europe and Africa Compared’ in Joanna Banach-Guttierez and Christopher Harding (eds) EU Criminal Law and Policy: Values, Principles and Methods (Routledge: Abingdon 2017) 127–133. 11  Emile Durkheim, Durkheim and the Law (Steven Lukes and Andrew Scull, eds, OUP 1983) 42, 46 (hereafter Durkheim, Durkheim and the Law).

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On Regional Criminal Courts   197 and its effect on the common mind: ‘. . . we should not say that an act offends the ­common consciousness because it is criminal, but that it is criminal because it offends that consciousness. We do not condemn it because it is a crime, but it is a crime because we condemn it.’12 Crime has the nature of an abomination that affects the moral fabric of society. The social function of criminal law is to repair the blow to a society’s moral order by demonstrating the firmness of its members when exposed to such a mighty challenge.13 Durkheim’s analysis of the social function of criminal law and punishment has withstood the wear and tear of time, because it provides a singular, forceful account of the interaction between collectives and individuals in a morally charged context. Simultaneously, it has only limited pretensions and by no means answers all questions. For one thing, Durkheim does not address the composition of the (political) community. He does, for instance, not convey whether the offender must belong to such a community. In this respect, the deliberations of Duff are instructive. Duff argues that the offender and the body that holds him to account must at least share a linguistic and normative commonality. After all, before being able to respond to a charge one must grasp its literal and normative bearing.14 But Duff carries the argument one step further when he claims that the citizen is responsible to his fellow citizens, suggesting that both the offender and the victim(s) belong to the same (political) community. By grounding criminal jurisdiction in citizenship, rather than in territory, Duff attempts to sustain extra-territorial jurisdiction—like the active nationality principle and the passive personality principle—or at least aims to demonstrate that from this perspective there is nothing ‘puzzling’ about such claims: [T]here is nothing puzzling in a claim that I am answerable to my fellow citizens for wrongs that I commit elsewhere, since I do not leave my status as a citizen behind when I go abroad; or in a claim that as citizens we have a proper interest in any wrongs done to our fellow citizens, and the standing to call the wrongdoer to answer for them.15

To be sure, there is merit in the assumption that the offender should belong to the community that holds him to account for his deviant behaviour. First of all, the offender, as a member of the political community, has at least had the opportunity to influence the decision on what counts as ‘criminal behaviour’. Secondly, as an insider he had ‘fair warning’ about the consequences of his criminal trespassing. And finally, he will, after having responded to the charges and perhaps having atoned for his wrongdoing, be admitted to that community again. Nonetheless, Duff ’s preference for citizenship as a basis for criminal jurisdiction runs slightly astray when he tries to reconcile it with the 12 Durkheim, Durkheim and the Law (n 11) 48. 13 Durkheim, Durkheim and the Law (n 11) 69: ‘The real function of punishment is to maintain inviolate the cohesion of society by sustaining the common consciousness in all its vigour.’ 14  Duff, ‘Responsibility’ (n 1) 131. 15  Duff, ‘Criminal Responsibility’ (n 2) 15.

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198   Harmen van der Wilt primacy of territorial jurisdiction in criminal law. He concedes that not only nationals but also foreign visitors or tourists are equally protected and bound by a state’s criminal law. Duff sustains the protective quality of criminal law on the idea of hospitality and contends that the offence of the foreigner, while considered wrongful in the abstract when committed abroad, becomes ‘our business’ when committed on our territory.16 He emphatically denies that this means that he has converted to the territoriality principle: To say this is not to revert to a geographical or territorial account of jurisdiction, to the effect that the criminal law of a given polity has jurisdiction over all crimes committed within its territory, by and against whomever they are committed: what makes normative sense of jurisdiction is still the law’s character as the law of a particular polity, whose members are its primary addressees.17

Duff ’s reasoning on this point is contrived and not very convincing, because he ignores that the applicability of the law is completely tied up with and inseparable from the territory that the community claims to possess. Moreover, his previous predilection for citizenship as basis for criminal jurisdiction is considerably diluted when one admits the accidental traveller to that circle.18 But apart from this small flaw, Duff ’s analysis is very insightful, as it sheds a clear light on the connection between criminal law and political community. A second weakness in Durkheim’s sociology of punishment is that he is rather vague about the question what the criminal law of a specific community reveals about the values and interests of that community. He explicitly denies that criminal law serves to ward off the harm that is inflicted on society: ‘There are a whole host of acts which have been, and still are, regarded as criminal, without in themselves being harmful to society.’19 Conversely, there are many events or acts that shake the foundations of society but are left virtually untouched by criminal law: ‘an economic crisis, a crash on the stock market, even a bankruptcy, can disorganize a community much more seriously than an isolated case of homicide.’20 Could the argument then be improved by holding that criminal law protects those values and interests that are perceived as being quintessential for the well-being of society? Undoubtedly that is the case, but it does not explain anything, as it boils down to ‘our saying that societies deem the rules necessary because they deem them necessary!’21 Durkheim insists that criminal punishment is reserved for the violation of people’s deepest sentiments that reside in the ‘conscience collective’ and that criminal law has a strong degree of durability and is therefore rather immutable both in space and in time. But by stressing the commonalities of criminal law and punishment— forceful as it may be—Durkheim tends to ignore the subtle differentiations in criminal law that reflect changes in moral opinions or in perceptions of man-made threats. It is 16  Duff, ‘Responsibility’ (n 1) 142/143. 17  Duff, ‘Criminal Responsibility’ (n 2) 14/15. 18  For similar criticism, see Alejandro Chehtman, ‘The Extraterritorial Scope of the Right to Punish’, (2010) 29(2) Law & Phil 127. 19 Durkheim, Durkheim and the Law (n 11) 40. 20 Durkheim, Durkheim and the Law (n 11) 41. 21 Durkheim, Durkheim and the Law (n 11) 42.

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On Regional Criminal Courts   199 rather striking that public permissiveness of sexual relations between adults and minors has diminished within a comparatively short period of time and this has left its traces in criminal law that has become more repressive in this respect. On the other hand, toleration of the possession and use of soft drugs has increased internationally, not in the least because of the acknowledgment that criminal repression involves considerable expenses, both materially and immaterially. As a result, there are growing discrepancies between state practice and international conventions that still propagate the paradigm of criminal law enforcement and are therefore gradually becoming obsolete.22 Whereas these brief examples refer to developments in time, it is quite obvious that states harbour different opinions on what values and interests require the protection of criminal law, that is proven by the widespread and fierce resistance against efforts to harmonize or unify (substantive) criminal law. I will discuss this topic in more detail in the next part. While the relationship between criminal law and a community’s main values is arguably more complex than Durkheim suggests, the major virtue of his work is that he, like Antony Duff, has pondered on the concept of a political community, characterized by common interests and values, as a prerequisite for the existence of criminal law that gives expression to those interests. An offender may or may not be a member of that community, but he must at least share linguistic and normative features in order to be able to ‘respond’ to the charges of the community. These appear to be appropriate points of departure for assessing the claims of international and regional criminal justice systems as representatives of true communities.

III.  From International to Regional Criminal Law Enforcement: A Step Forward? The search for aims and justifications of international criminal justice has rekindled the interest in Durkheim’s work. The line of reasoning goes like this. International criminal law reflects the deepest sentiments of humanity that entail a shared revulsion of ­atrocities like war crimes, crimes against humanity, and genocide. The prime objective of international criminal justice is therefore ‘normative expression’ and both the inter­nation­al criminal trial and subsequent punishment serve the didactic purpose of demonstrating and reminding humanity of the primordial value of denunciating and

22  On this specific topic, see the interesting contributions of Krzsztof Krajewski, ‘How Flexible are the United Nations Drug Conventions?’ (1999) 10 International Journal of Drug Policy (1999), 329; and (in Dutch) PHPHMC van Kempen and Masha Fedorova, Internationaal recht en Cannabis [International Law and Cannabis] (Wolters Kluwer 2014).

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200   Harmen van der Wilt abstaining from such acts.23 This obviously presupposes a realm of values and sentiments, commonly held by all humanity. The Preamble of the Rome Statute indeed starts from that premise: ‘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.’24 The second line of the Preamble is strongly reminiscent of Durkheim: ‘Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.’25 The recognition of this common conscience is combined with an imperative to act by engaging in criminal law enforcement: ‘Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished . . . Determined to put an end to impunity . . . Recalling that it is the duty of every State to exercise its criminal jurisdiction.’26 It is not as easy as it would seem to locate the common conscience of mankind in the shared repudiation of certain heinous acts. Some would be inclined to attribute this to man’s capacity to recognize the other’s perception of life and the world as truly authentic and equal to his own. That would imply a rejection of any profound dehumanization of which international crimes are a prime example.27 Others would perhaps more scep­tic­ al­ly observe that the current pluralism and extreme cultural, ideological, and religious fragmentation leave us no other option than to negatively define our common humanity in renunciation of violence and identification with the victims.28 Such philosophical reflections need not detain us here. What is remarkable is that, less than 20 years after the promulgation of the Rome Statute, both the idea of a ‘common consciousness’ sustaining the project of international criminal justice and the self-evidence of criminal law enforcement as the exclusive way to counter international crimes have dwindled. In my view this can be ascribed to three factors. First of all, there is a growing awareness that international criminal justice is not administered equally. By manipulating the Security Council, the most powerful states are capable of protecting their friends and targeting their foes.29 Apparently, it does not matter so much what is done, but by whom. 23  Advocates of this view are Mirjan Damaška, ‘What is the Point of International Criminal Justice?’ (2008) 83(1) Chi-Kent L Rev, 329; Edward M Wise, ‘The International Criminal Court: A Budget of Paradoxes’ (2000) 8 Tulane Journal of International and Criminal Law 267; and Marc Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 175. I have previously endorsed this opinion in Harmen van der Wilt, ‘Crimes Against Humanity: A Category Hors Concours in (International) Criminal Law?’ in Britta van Beers, Luigi Corrias & Wouter Werner (eds) Humanity Across International Law and Biolaw (CUP 2014) 37. As indicated before, Durkheim would certainly agree that the function of criminal law is the affirmation of social solidarity. Whether he would find that people should be educated and reminded of that purpose is perhaps more doubtful, as such sentiments in his view would already be engrained in their consciences. 24  Rome Statute of the International Criminal Court (1998) 2187 UNTS 3 (emphasis added). 25  Emphasis added. 26  Emphasis added. 27  See the deep observations of Raimond Gaita, A Common Humanity: Thinking About Love and Truth and Justice (Routledge 2000). 28  In this vein, Richard Rorty, Contingency, Irony and Solidarity (CUP 1989). 29  For an interesting study on this problem, see Res Jorge Schuerch, The International Criminal Court at the Mercy of Powerful States: How the Rome Statute Promotes Legal Neo-Colonialism (Asser Press 2017).

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On Regional Criminal Courts   201 Secondly, there is an increasing disenchantment with the lack of efficiency demonstrated by the ICC, that can largely be attributed to the reluctance of states to cooperate with the Court. Again, this does not testify to the much-heralded common effort that would be required to end impunity. And finally, doubts are raised whether criminal law enforcement would be an appropriate mechanism at all to accomplish important goals like peace-making and reconciliation. Transitional justice encompasses a wide variety of approaches and tools of which criminal law might not be the most appropriate.30 In short, the initial optimism about international criminal justice has waned, prompting some to comment that the ‘honeymoon is over’.31 The legitimacy-loss of the ICC raises the question whether regional criminal law enforcement would provide an appropriate alternative. Does a continent like Europe or Africa qualify as a ‘political community’ whose members share interests and values that deserve protection by a regional criminal law that is administered by regional legal institutions? Some authors indeed defend that position. William Burke-White mentions a number of practical advantages of regional criminal law enforcement.32 The physical proximity of the adjudicating court to the crime scene and the affected society facilitates the involvement of and cooperation with the local judiciary, on a similar— complementary—basis as the current construction in the Rome Statute. It also increases the opportunities for the attendance and participation of interested parties, like victims and witnesses.33 For the purpose of this essay, Burke-White’s observations on the political and psychological merits of regional courts are of particular interest. He attributes the (potential) greater legitimacy of a regional tribunal—compared to supranational crim­inal law enforcement—to the ‘claim that regional groupings share some sense of common identity.’ He notes that ‘where regional groupings do share a common set of values or identities, regionalization allows those values to be better reflected in adjudicative tribunals.’ And he concludes that ‘a regional court, with fewer member states, may be perceived as more responsive to local customs, values and preferences.’34 Burke-White 30  The literature on the topic is abundant. Suffice here to refer to Okechukwu Oko, ‘The Challenges of International Criminal Prosecutions in Africa’ (2007) 31 Fordham Intl L J 343 who notes the tensions between traditional justice systems placing ‘a significant premium on social harmony’ and western type justice systems that are ‘chiefly concerned with rights of the citizens and punishment of those who violate the law.’ In a similar vein: African Union High-Level Panel on Darfur, ‘Report of the African Union High Level Panel on Darfur’ (Peace and Security Council 207th Meeting at the Level of Heads of State and Government, October 2009, Abuja, Nigeria, PSC/AHG/2(CCVII)) challenging the monopoly of crim­ inal justice (p. 53): ‘Crimes arising from clashes over land rights and resources, or violence between nomads and farmers, cannot be answered by prosecutions and punishment exclusively, they require the adoption of methods, within or additional to the criminal process, which will encourage communities to reach peaceful accommodations with one another.’ 31  David Luban, ‘After the Honeymoon: Reflections on the Current State of International Criminal Justice’ (2013) 11 Journal of International Criminal Justice 505. 32 William  W.  Burke-White, ‘Regionalization of International Criminal Law Enforcement: A Preliminary Exploration’ (2003) 38 Texas International Law Journal 729 (hereafter Burke-White, ‘Regionalization of ICL Enforcement’). 33  Burke-White, ‘Regionalization of ICL Enforcement’ (n 32) 735–6. 34  Burke-White, ‘Regionalization of ICL Enforcement’ (n 32) 737.

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202   Harmen van der Wilt acknowledges that regional criminal courts would represent one option within a broader array of potential forms of regionalization of international criminal justice and he suggests that such regional courts could easily be interwoven in the existing institutional framework of the European Union or Organization of American States.35 While Burke-White’s analysis is theoretically interesting and is vividly reminiscent of the ideas explored by Duff and Durkheim, there is hardly any practical evidence to support his propositions. The European Union, an example of advanced regional political integration, is far removed from accepting a regional criminal court. One might expect that the operation of a regional criminal court would require at least the harmonization of (substantive) criminal law in a number of areas in which that court would wield competence. Article 83 of the Treaty on the Functioning of the European Union identifies a number of ‘particularly serious crimes with a cross-border dimension’ that would be subject to minimum-harmonization of the applicable legal provisions of the member states.36 Apart from revealing a top-down approach, the provision is quite careful in emphasizing that European institutions are only aiming at ‘minimum harmonization’ and ‘approximation’ of criminal laws. They by no means wish to raise the suspicion that they would impose criminal law on the member states! Harmonization of criminal law has traditionally been a cumbersome affair within the European Community, because the member states are loath to sacrifice their sovereign powers in this area. Precisely because harmonization of criminal law within the European Union has always been an arduous business, the principle of ‘mutual recognition’ was introduced during the summit of the Council in 1999 in Tampere. The member states of the European Union are supposed to engage in judicial and police cooperation in spite of the differences in their (substantive or procedural) criminal law. These differences should, however, not be too big, as that would discourage the states from mutual cooperation. This dialectical relationship between mutual recognition and (minimum) harmonization is expressed in Article 82 of the Treaty on the Functioning of the European Union: (1) Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.

35  Burke-White, ‘Regionalization of ICL Enforcement’ (n 32) 749–50. 36  Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, [2007] OJ C306/01. Art 83, s 1 provides that: ‘The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crimes with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organized crime.’

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On Regional Criminal Courts   203 The Framework Decision on the European Arrest Warrant was the first legal instrument to incorporate the principle of mutual recognition.37 Article 2(2) of the Framework Decision partially abolishes the requirement of dual criminality for 32 listed offences, including the crimes that are mentioned in Article 83(2) of the EU Treaty. It perfectly demonstrates that the principle of mutual recognition is primarily intended as an alternative to harmonization. After all, if the criminal laws of the member states had been harmonized, one would not have had to bother with the abolition of dual criminality. Perhaps somewhat redundantly, the European Court of Justice in the Advocaten voor de Wereld case confirmed that ‘the Framework Decision (on the European Arrest Warrant) does not seek to harmonise the criminal offences in question in respect of their constituent elements or the penalties which they attract.’38 It stands to reason that the functioning of a regional criminal court does not require that the states establishing such a court all have exactly the same provisions in respect of the offences that belong to the subject matter of that court. Moreover, the inclination to cooperate in criminal matters in spite of legal differences may reveal a strong degree of mutual trust and a global consensus that these offences affect common interests that are important ingredients of a political community, as presented by Duff. If so desired, these states might decide to outsource the adjudication of these offences to a regional criminal court. Yet there are hardly any signs that the establishment of such a European criminal court is imminent.39 Article 86 of the Treaty on the Functioning of the European Union provides for the establishment of a European Public Prosecutor’s Office (EPPO) by means of a regulation, out of the bosom of Eurojust, whose primary task is to initiate and coordinate criminal investigations of the member states of the European Union.40 A draft regulation to that purpose has indeed been promulgated.41 EPPO is primarily intended to counter and combat the crimes affecting the financial interests of the European Union. Article 86(2) stipulates that ‘the European Public Prosecutor’s Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union’s financial interests’. The initiative to dedicate the criminal law enforcement in respect of crimes against the Union’s financial interests to a special institution of the Union stems from the old grudge that member states have consistently 37  Council Framework Decision, 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States OJ L190/1. 38  Case C-303/05 Advocaten voor de Wereld VZW v. Leden van de Ministerraad [2007] ECR I-03633, para 52. 39  Compare also André Klip, European Criminal Law: An Integrative Approach (Intersentia 2009) 427, who predicts merely that the Union will, ‘one day establish a European criminal court.’ (hereafter Klip, European Criminal Law). 40  It is not entirely clear how the relationship between both institutions is envisaged: will they remain separate institutions or are they likely to merge? See the interesting reflections of William Geelhoed, Het opportuniteitsbeginsel en het recht van de Europese Unie (Kluwer, Deventer 2013) 273–8 (hereafter Geelhoed, Het opportuniteitsbeginsel). 41  Council of the European Union, ‘Draft Council Regulation on the Establishment of the European Public Prosecutor’s Office’ 2013/0255 (APP).

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204   Harmen van der Wilt failed to exhibit the necessary zeal in this area.42 Nevertheless, Article 86(4) provides that the powers of EPPO may be extended to include serious crime having a cross-border dimension. Geelhoed notes that the Green Paper on the Criminal Law Protection of the Financial Interests of the Community and the Establishment of a European Public Prosecutor mentioned organized crime and counterfeiting of the Euro as potential candidates for the expansion of EPPO’s powers.43 In view of these developments, two observations are in order. First, the choice of the financial interests of the Community as the area of primary concern for regional crim­inal law enforcement is striking. From the perspective of the European Union, one can easily understand the EU’s sense of frustration of the member states’ laxity. However, the financial interests of the EU are hardly likely to touch the deepest chords of the conscience collective of the European population, as Durkheim would have it. Second, and more importantly, the formation of a European Public Prosecutor’s Office does by no means imply that a European Criminal Court will emerge as well. Article 86(2) of the EU Treaty on the Functioning of the EU explicitly holds that EPPO shall exercise the functions of prosecutor in the competent courts of the member states in relation to offences affecting the financial interests of the Union. In other words, it envisages a system of decentralized criminal law enforcement. How EPPO and national prosecutors will interact is not yet fully clear. The only thing that one could add is that the presence of an institutional structure in the realm of prosecution may perhaps facilitate the establishment of a regional court.44 These slightly jolting observations on the meanderings of European criminal law are not intended to suggest that regional criminal courts are a mere chimera. They only serve to demonstrate that a continent with a high level of political and economic integration has not opted for the adoption of centralized criminal law enforcement. Differently from what Burke-White asserts, the presence of a highly developed system of human rights protection is a poor predictor for the establishment of a regional crim­ inal court.45 It is perhaps illuminating to turn our attention to a real attempt to create a regional criminal court. 42  In the famous ‘Greek Maize Case’, Case 68/88 Commission v. Hellenic Republic [1989] ECR 2965, para 24, the European Court of Justice pointed out that ‘whilst the choice of penalties remains within their discretion (id est: of the Member States), they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance which, in any event, make the penalty effective, proportionate and dissuasive.’. The Court added (at para 25) that ‘the national authorities must proceed, with respect to infringement of Community law, with the same diligence as that which they bring to bear in implementing corresponding national laws.’ Both formulations obviously served to exhort the member states to vigorously protect the financial interests of the European Community, both in legislations and in practice. Apparently, this reminder was—and is until this very day—quite necessary! 43 Geelhoed, Het opportuniteitsbeginsel (n 40) 272. 44  In a similar vein, Klip, European Criminal Law (n 39) 427. 45  Burke-White, ‘Regionalization of ICL Enforcement’ (n 32) 750. Similar optimism on the convergence between human rights and criminal law is displayed by Alexandra Huneuus, ‘The Quasi-Criminal Judgments of the Human Rights Court’ (2013) 107 American Journal of International Law 1, although, to

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On Regional Criminal Courts   205

IV.  The Prospects of an African Criminal Court Authors on the topic of the African Criminal Court agree that the proposals for its establishment have mainly been driven by negative incentives: the discontent about the se­lect­ive attention of the ICC and western political powers for African offenders and African crimes, in particular in respect of African state officials.46 Obviously, that does not disqualify the entire venture. In order to ascertain whether a regional criminal court in Africa would provide an appropriate intermediate forum between domestic courts and the ICC, it is interesting to investigate its prospective subject-matter jurisdiction. After all, by identifying the criminal threats that burden the African population the most, we may acquire a reliable impression of the nature and cohesion of the political community. Article 28A of the Malabo Protocol lists 14 crimes over which the International Criminal Law Section of the African Court can exercise jurisdiction.47 This collection of offences represents an interesting mixture of what are often called ‘core crimes’ and transnational crimes. The ‘core crimes’—genocide, crimes against humanity, war crimes, and the crime of aggression—are largely modelled on the definitions in the Rome Statute, although the Malabo Protocol contains some remarkable innovations.48 Some international or transnational crimes mirror definitions in international her credit, she warns in footnote 4 that ‘the comparisons included here are to stimulate the reader to take seriously the connections the paper draws, but with acknowledgement of the incommensurability of the different types of courts’. 46  Abass, ‘The Proposed International Criminal Jurisdiction’ (n 7) 28: ‘The rancour between the African Union (AU) and the ICC, apparently warranted by the latter’s issuance of arrest warrants against sitting African heads of state and senior government officials, induced the AU to take several “retaliatory” measures against the ICC, culminating in its conferring international criminal jurisdiction on its court.’ Chacha Bhoke Murungu, ‘Towards a Criminal Chamber in the African Court of Justice and Human Rights’, (2011) 9 Journal of International Criminal Justice 1068: ‘Arguably, there is one main factor that has led to calls for the establishment of a Criminal Chamber within the African Court. This is the indictment and prosecution of African state officials either by the domestic courts of some European states (..) or by the International Criminal Court’. 47  Genocide, crimes against humanity, war crimes, the crime of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources and the crime of aggression. 48  Article 28B on genocide, for instance, includes ‘acts of rape or any form of sexual violence’ (if committed with the special intent to destroy, in whole or in part, a national, ethnic, racial or religious group). Article 28D on war crimes adds to the long list of other serious violations of the laws and customs ap­plic­able in either international or non-international armed conflicts a couple of other crimes including slavery, collective punishment, and despoliation of the wounded, sick, shipwrecked, or dead. And perhaps most noteworthy: the provision identifies the use of nuclear weapons or other weapons of mass destruction as a war crime. This was a highly contested issue during the Rome Conference, but it did not make it to the final draft of the Rome Statute.

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206   Harmen van der Wilt c­ onventions that have been concluded by states in order to improve their cooperation in the fight against those crimes. Piracy (Malabo Protocol, Article 28F) is copied verbatim from Article 101 of the UN Convention on the Law of the High Seas.49 Trafficking in persons (Article 28J Protocol) faithfully follows the Protocol that supplements the UN Convention against Transnational Organized Crime of 2000.50 And Article 28K on trafficking in drugs is strongly reminiscent of the corresponding criminal provisions in the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.51 Six other crimes display a distinct African touch, as they are engrafted on legal instruments of the African Union. The definition of terrorism in Article 28G is inspired by Article 1 of the OAU Convention on the Prevention and Combating of Terrorism of 1999.52 The reading of terrorism by the AU is clearly much broader than the definition of terrorism under customary international law, as advanced by the Appeals Chamber of the Special Tribunal for Lebanon, that lacked any references to ulterior motives like

49  UN Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, Article 101: ‘Piracy consists of any of the following acts: a)  Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private boat, ship or private aircraft and directed: i) on the high seas, against another boat, ship or aircraft, or against persons or property on board such boat, ship or aircraft; ii) against a boat, ship, aircraft, persons or property in a place outside the jurisdiction of any State. b)  Any act of voluntary participation in the operation of a boat, ship or of an aircraft with knowledge of facts making it a pirate boat, ship or aircraft; c)  Any act of inciting or intentionally facilitating an act described in subparagraph (a) or (b).’ 50  Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, article 3(a): ‘ “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.’ The other sections of Article 28J—on a closer definition of exploitation, irrelevance of consent, and the special position of children—reads exactly the same as the corresponding provisions in the UN Protocol. 51  United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (adopted 20 December 1988, entered into force 11 November 1990) 1582 UNTS 95, art 3(1)(a)(i-iv). 52  OAU Convention on the Prevention and Combating of Terrorism, (adopted 14 July 1999, entered into force 6 December 2002) ‘ “Terrorist Act” means: (1) any act which is a violation of a State Party, the laws of the African Union or a regional economic community, and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to: (i) Intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or (ii) Disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or (iii) Create general insurrection in a State.’

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On Regional Criminal Courts   207 disruption of public services or the creation of general insurrection in a state.53 Another conspicuous feature in both the Malabo Protocol and the OAU Convention is the explicit exclusion of liberation or self-determination struggles from the realm of terrorism, which has always been a sensitive issue in African countries.54 Article 28H coins the definition of a mercenary, as proposed by the OAU Convention for the Elimination of Mercenarism in Africa (1977) that in its turn borrows from Additional Protocol I to the Geneva Conventions.55 However, the provision in the Malabo Protocol refers specifically to a category of contract fighters who are involved in the overthrowing of a legitimate government or in the undermining of the constitutional order of a state, assisting a government to maintain power, assisting a group of persons to obtain power, or undermining the territorial integrity of a state.56 Clearly, this reflects the African preoccupation with seditious action that underlies the crime of unconstitutional change of government, the topic of Article 28E. While Article 47 of Additional Protocol I only decrees that mercenaries shall not have the right to be a combatant or a prisoner of war, Article 28H stipulates that a mercenary who participates directly in hostilities or in a concerted act of violence commits an offence. The definition of corruption in Article 28I is literally taken from the African Union Convention on Preventing and Combating Corruption (2003), although the provision interestingly restricts the jurisdiction of the African Criminal Court to those acts of corruption that are of a serious nature and affect the stability of a state, region, or the union.57 The related and supportive offence of money laundering (Article 28I Bis) is modelled after Article 6 of the AU Convention on Corruption that, in its turn, repeats the definition featured in the UN Convention against Corruption (2003).58 Two provisions of the Malabo Protocol aim to protect the much endangered African wildlife and environment. Article 28L on trafficking in hazardous wastes—a trans­nation­al crime par excellence—explicitly refers to the Bamako Convention of 1991 that contains a definition of ‘hazardous wastes’ and designates ‘any import or failure to re-import, transboundary movement, or export’ of such materials as a crime under the 53 Case STL-11–01/I/AC/R176bis Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging (Appeals Chamber of the Special Tribunal of Lebanon, 16 February 2011) §§ 83–5. 54  Article 28 G Malabo Protocol and Article 3 of the OAU Convention provide that ‘notwithstanding the provisions of paragraphs A and B [respectively article 1], the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts.’ 55  OAU Convention for the Elimination of Mercenarism in Africa (adopted 2 July 1977, entered into force 22 April 1985) CM/817 (XXIX), Annex II Rev. 1; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 4. 56  Art 28H(1)(b). 57  African Union Convention on Preventing and Combating Corruption (adopted 1 July 2003, entered into force 5 August 2006), art 4. 58  UN Convention against Corruption (adopted 31 October 2003, entered into force 14 December 2005), 2349 UNTS 41.

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208   Harmen van der Wilt jurisdiction of the African Court.59 And Article 28L Bis copies Article 12 of the Protocol Against the Illegal Exploitation of Natural Resources, explaining which acts constitute the criminal offence of illicit exploitation of natural resources.60 Arguably the most controversial—and interesting—offence in the Malabo Protocol is the crime of unconstitutional change of government, elucidated in Article 28E. The crime is inspired by Article 23 of the African Charter on Democracy, Elections and Governance, which covers both uprisings against democratically elected governments and refusals of incumbent governments to make way for those that have been elected by the people.61 In 2012 the AU Assembly of Member States suspended the adoption of the Draft Protocol (the predecessor to the Malabo Protocol), requesting the Union to come up with a more precise definition of the concept of unconstitutional change of government. An expert meeting decided that an amendment of the current definition was not necessary, but the issue remains fraught with political sensitivities, including the question of who will decide on the legitimacy of a popular uprising against an (oppressive) regime.62 Abass has expressed some concern that not all offences that belong to the subject-matter jurisdiction of the prospective African Court would qualify as serious inter­nation­al crimes.63 As abundantly demonstrated above, all the offences have a solid legal basis in conventional instruments, so they will meet the standards of ‘foreseeability and accessibility’. However, that would not suffice because not all these crimes incur crim­inal responsibility under international law. The lack of international status could be compensated for by comprehensive ratification and implementation of the conventions that enjoin member states of the African Union to criminalize these activities in their domestic legislation. However, the Member States have by no means fully complied with their obligations.64 To be sure, Abass has a point, but it only reinforces the assumption 59  Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (African Union—adopted 30 January 1991, entered into force 22 April 1998) accessed 4 May 2016. 60  Protocol Against the Illegal Exploitation of Natural Resources (International Conference on the Great Lakes Region—adopted 30 November 2006) accessed 4 May 2016. 61  African Charter on Democracy, Elections and Governance (African Union—adopted 30 January 2007, entered into force 15 February 2012) accessed 16 October 2019. For an in-depth analysis of the nature of this offence, including the question whether it can be considered as a crime under (regional) customary international law, see Harmen van der Wilt, ‘Unconstitutional Change of Government: A New Crime Within the Jurisdiction of the African Criminal Court’ (2017) 30(4) Leiden Journal of International Law 967. 62  Compare Ademola Abass, ‘Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges’ (2013) 24(3) European Journal of International Law 941. 63  Abass, ‘The Proposed International Criminal Jurisdiction’ (n 7) 32–37. 64  Abass, ‘The Proposed International Criminal Jurisdiction’ (n 7) 33 gives the telling example of the AU Convention against Corruption that has only been ratified by 31 African states, while only 10 of them have ‘implemented some of the most basic provisions of the Convention within their domestic laws.’

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On Regional Criminal Courts   209 that some crimes, while perhaps not inciting universal condemnation, may definitely be of great regional concern.65 The fact that all offences as enumerated in the Malabo Protocol are firmly rooted in regional instruments attests to the fact that they have been on the minds of the African population for a long time. For a number of these crimes this hardly requires further substantiation—rampant corruption has long plagued the African continent.66 While terrorist cells controlled by IS or Al Qaeda are capable of wreaking havoc all over the world, the atrocities committed by Boko Haram per­man­ent­ly disrupt entire communities.67 Illegal poaching of animals, boosted by the insane demand of wealthy consumers, threatens the survival of African wildlife.68 And Abass asserts that unconstitutional changes of government ‘are undoubtedly one of the most common sources of conflict in Africa’, adding that ‘the examples of Zimbabwe’s Mugabe, Kenya’s Kibaki and Ivory Coast’s Gbagbo readily come to mind.’69 In view of the fact that all these crimes significantly affect Africans and African states, it makes sense to create a regional institution that may be able to counter them. The underlying assumption of the African Criminal Chamber’s establishment is that African states are insufficiently equipped to prosecute and try the perpetrators of those crimes. Article 46H of the Malabo Protocol indeed presupposes that national states take ­precedence and that the Court steps in only when they do not engage in criminal law enforcement at all or are unwilling or unable genuinely to carry out the investigation or prosecution.70 For a proper functioning, the African criminal court will be entirely dependent on the loyal cooperation of states parties. With this objective in mind, Article 46L of the Protocol instructs the states to cooperate with the Court in the investigation and prosecution of persons accused of committing the crimes under the statute and to 65  Abass, ‘The Proposed International Criminal Jurisdiction’ (n 7) 33 admits this when he holds that ‘the acquisition of jurisdiction by the African Court over such unorthodox “international” crimes, it is submitted, addresses the gap between the jurisdictional reach of the ICC and the occurrence in many African States Parties to the Rome Statute of many admittedly less familiar but ubiquitous and devastating crimes afflicting them.’ 66  On the Corruption Perception Index of 2015, created by Transparency International, six of the ten worst performing countries are African. accessed 11 May 2016. 67  See on the chilling abductions of schoolgirls in Chibok in 2014 Kevin Sieff, ‘Boko Haram Kidnapped 276 Girls Two Years Ago, What Happened to Them?’ The Washington Post (14 April 2016) accessed 11 May 2016. 68  See Leilani Jordan, ‘Illegal Poaching in Africa’ (Gapyear) accessed 11 May 2016. 69  Abass (n 62) 939. See for a thorough account of African political instability Martin Meredith, The state of Africa; A History of 50 years of Independence (Free Press 2005). 70  The article embodies the well-known principle of complementarity and virtually copies art 17 of the Rome Statute, leaving out, however, the qualifying term ‘genuinely’. On the potential consequences of this omission, see Harmen van der Wilt, ‘Complementarity jurisdiction (Article 46H)’ in Gerhard Werle and Moritz Vormbaum (eds) The African Criminal Court: A Commentary on the Malabo Protocol (Asser Press 2017) 187–202 (hereafter Werle and Vormbaum, The African Criminal Court). See on the scope of the complementarity principle: Darryl Robinson, ‘The Mysterious Mysteriousness of Complementarity’, (2010) 21(1) Criminal Law Forum 67.

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210   Harmen van der Wilt comply without delay with any request for assistance or order issued by the Court.71 Whether states will indeed live up to the expectations is of course difficult to predict and may well depend on the nature of the crime and the situation at stake.

V.  Some Final Reflections At first blush it may be rather surprising that the EU has not made much progress in establishing a regional criminal court. One would perhaps expect politically and culturally kindred states to pool their investigative and judicial powers, making use of existing legal structures, like the European Court of Justice or the European Court on Human Rights, that can be relatively easily enlarged with a criminal chamber. On further consideration, however, it is understandable. The European states can show a long tradition of inter-state cooperation in criminal matters. They simply do not need a regional crim­ inal court because it does not have any added value. The history of European criminal law over the last 50 years has been marked by increasing cooperation, but states have simultaneously jealously guarded their realm of criminal law against encroachment by European institutions. The establishment of a regional criminal court could be interpreted as a further surrender to Brussels. In Africa the situation is radically different. The African population is harassed by man-made disasters that are sometimes caused or created by states, or at least exceed their powers of law enforcement. A regional criminal court could, from that perspective, be conceived as a shield that offers at least some protection. It could occupy the niche between national authorities and the distant ICC that not only has been accused of a one-sided focus on African situations, but has no interest in the prosecution of crimes that may be considered as parochial by the international community, but involve real threats for Africans. Simultaneously, the intermediate position of the African Criminal Court also yields great challenges. Squeezed between national jurisdictions and the ICC, the African court is rather vulnerable. The partial overlap of subject matter jurisdiction of the ICC and the African court raises the question of which court would have primacy in respect of the investigation and prosecution of war crimes, crimes against humanity, or genocide. One could envisage a backstop position for the ICC, in line with the principle of complementarity, that would entail that the African Court would have the first shot and the ICC would be allowed to step in whenever the regional court does not display any action or appears to be ‘unable or unwilling’. However, the Malabo Protocol does not address the relationship between the African court and the ICC.72 There are sources of 71  The provision is inspired by—and a simplified version of—arts 89 and 93 of the Rome Statute. 72  On this puzzling omission see Max du Plessis, ‘Implications of the AU Decision to Give the African Court Jurisdiction Over International Crimes’, (2012) Institute for Security Studies Paper 235, 10: ‘. . . it is unfathomable that the draft protocol nowhere mentions the ICC, let alone attempts to set a path for African states that must navigate the relationship between these two institutions.’

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On Regional Criminal Courts   211 conflict in the normative architecture of both institutions. One obvious bone of contention is the issue of immunities for heads of states and other senior state officials. Whereas the Rome Statute has emphatically abolished both functional and personal immunities before the ICC in Article 27, the Malabo Protocol in Article 46A bis stipulates that ‘no charges shall be commenced or continued before the (African) Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such cap­ acity, or other senior state officials based on their functions, during their tenure of office.’ Political clashes between the ICC and the African Union are therefore most likely to occur if the highest governmental echelons are involved in war crimes or crimes against humanity.73 In the majority of cases the African court will not face competition from the ICC, for the simple reason that the crimes are outside the latter’s subject-matter jurisdiction. Whether these transnational crimes will be prosecuted and tried at the national or regional level is largely dependent on the capacities of either of them to administer criminal justice. As indicated above, the relationship between the African court and national jurisdictions is governed by the complementarity principle. The fact that African states themselves created the Court is maybe an incentive for them to embolden its functioning by engaging in concerted action. The extent to which they are prepared and capable of doing so is the ultimate litmus test of whether Africa can count as a pol­it­ical community that attempts to repel mortal threats to its existence by means of criminal law.

73  On this topic, see Dire Tladi, ‘Immunities (Article 46Abis)’ in Werle and Vormbaum, The African Criminal Court (n 70), 203–17.

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Section III

R AT IONA L E S

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Chapter 9

Ta k i ng I n ter nationa lism Ser iously Why International Criminal Law Matters Miriam Gur-Arye* and Alon Harel**

I. Introduction It is often argued that international criminal law (ICL) is designed to overcome ­deficiencies in national legal systems. When the state is incapable or unwilling to punish, it must be replaced by a reliable and impartial agent. Under this view, ICL is a pragmatic solution to the partiality and/or ineffectiveness of national legal systems.1 This chapter rejects such a view; ICL is not a pragmatic solution to the partiality, lack of accountability, and/or ineffectiveness of national legal systems. Nor is ICL inter­nation­al by coincidence or due to contingent features such as the greater competence of international tribunals, their better accountability, or impartiality. Rather, the goods of international criminal law and the values it promotes can only be provided by inter­ nation­al entities. This is part of a more general theme that one of us has developed in the past under which many legal institutions and procedures are not mere contingent means *  Judge Basil Wunsh Professor of Criminal Law, The Hebrew University of Jerusalem. **  Alon Harel, Mizock Professor of Law, The Hebrew University of Jerusalem; Center of Rationality, the Hebrew University. We are grateful to Vincent Chiao, Antony Duff, Leora Dahan-Katz, George Fletcher, Tatjana Hornle, Sandra Marshall for their valuable comments. Thanks are further due to our research assistants Tiran Sasson, Gal Dabush Yuval Bressler, and Noam Kolt. 1  See e.g., Gerhard Werle, Principles of International Criminal Law (2nd ed., TMC Asser Press 2009) 124–26 (hereafter Werle, Principles of ICL); Antonio Cassese, International Criminal Law (OUP 2003) 445–46 (hereafter Cassese, ICL). See also criminal.

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216   Miriam Gur-Arye and Alon Harel to an end, but are constitutive of these ends. Under the view developed in Why Law Matters: ‘various legal institutions and legal procedures that are often perceived as a contingent means to facilitate the realization of valuable ends matter as such’.2 We apply this finding to international criminal law and show that international crim­inal law ‘matters as such’. More specifically, we argue that ICL is not merely a means to provide deterrence, prevent atrocities, and bring about justice. Instead, international criminal law pronounces the wrongfulness of actions that harm the interests of the international community as a whole, and stresses the supremacy of internationalism and the proper hierarchical relations between the states and the international order. This view has important implications concerning the nature of the tribunals that are in charge of interpreting and enforcing international criminal law. These tribunals have to meet certain conditions and, in particular, they have to be capable of speaking in the name of the international community. According to our view, international criminal law is an agent-dependent enterprise. It provides goods that must, as a conceptual matter, be provided by an international agent, i.e., an agent who speaks in the name of the inter­nation­al community and whose judgments can be attributed to the international community. No individual state can make an authoritative pronouncement concerning the wrongfulness of international wrongs. The judgment that a particular act is a wrong directed against the international community must therefore be made by an entity that is superior to the states, i.e., an institution that can speak authoritatively in the name of the international community. We call this view ‘robust internationalism’. According to robust internationalism, the goods provided by the international community hinge on its internationalism and cannot be provided otherwise. In order to lend support to robust internationalism, we will begin by making some observations about national legal systems. Traditionally, discussions about criminal law maintain that the state (and only the state) should be tasked with punishing, i.e., that punishment cannot be inflicted by any agent other than the state.3 Criminal punishment that is inflicted by entities other than the state is not necessarily ineffective, impartial, or costly, but it is illegitimate and fails to provide the goods that criminal sanctions are designed to provide. In particular, it fails to pronounce that the relevant criminal behaviour is a public wrong harming the interests of the polity, and, as such, it is the business of the state to hold the offender accountable for that wrong.4 This chapter extends this analysis from national criminal law to international criminal law. Just as the state (and only the state) is the appropriate agent to govern and operate the national criminal law system, the international community (and only the 2  See Alon Harel, Why Law Matters (OUP 2014) 2 (hereafter Harel, Why Law Matters). 3  For a philosophical discussion of the importance of the agent in charge of making judgments concerning responsibility, see Anthony Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Hart 2007) (hereafter Duff, Answering for Crime). See also Harel, Why Law Matters (n 2) ch 3. 4  See ibid; Avihay Dorfman and Alon Harel, ‘The Case Against Privatization’ (2013) 41(1) Philosophy and Public Affairs 67.

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Taking Internationalism Seriously   217 international community) is the appropriate agent to govern and operate ICL. Hence, when national courts exercise universal jurisdiction to enforce the provisions of ICL, they represent the international community and speak in its name rather than in the name of the national entities to which they belong. Their decisions are given on behalf of the international community. In extending the analysis from national criminal law to international criminal law, one should note the difference between the two; a difference that may give rise to an objection. The authority of the state to govern and operate criminal law derives from its sovereignty. The sovereign, and only the sovereign, is authorized to speak in the name of the polity, and to require that a citizen answers for the crime committed against her fellow citizen.5 The exact nature of the international community and the basis of its authority to govern and operate the international criminal law is less clear and subject to debate.6 However, as we will show in Part III, the legal sources of the international criminal law, the crimes it defines, and the tribunals it has established are all based on the assumption that there is an international community whose criminal law seeks to protect universal interests threatening the ‘peace, security and the well-being of the world’.7 Our claim is therefore a modest one: we do not presuppose or establish the existence of an international community; we only argue that the ICL was established under the assumption that such a community exists, and that if such a community does not exist it follows that international criminal law, cannot be justified. The justifiability of ICL hinges on this assumption. Part II discusses the traditional rationales offered to justify ICL. We establish that those rationales do not take seriously internationalism. Part III argues that a careful examination of the practices of ICL indicates that the founders of ICL and the jurists who developed it strongly believe in the significance of internationalism. A thorough examination of the institutions in charge of implementing ICL indicates that those institutions are designed to serve the interests of the international community as a whole and should be regarded as organs of the international community. Part IV defends robust internationalism. It argues that the goods provided by the international community hinge on its internationalism and cannot be provided by tribunals that fail to speak in the name of the international community and, to do so, these tribunals ought to meet certain conditions specified in Part IV. 5  See Duff, Answering for Crimes (n 3). 6  See e.g., Antony Duff, ‘Authority and Responsibility in International Criminal Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 589, 597–602 (here­ after Duff, ‘Authority and Responsibility in ICL’); Kai Ambos, ‘Punishment without a Sovereign? The Ius Puneiendi Issue of International Criminal Law: A first Contribution towards a Consistent Theory of International Criminal Law’ (2013) 33(2) Oxford J of L Studies 293. 7  Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 38544, UN Doc A/CONF.183/9 (corrected on 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002, entered into force 1 July 2002), Preamble (hereafter Rome Statute).

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218   Miriam Gur-Arye and Alon Harel

II.  Evaluating the Traditional Rationales of International Criminal Law The establishment of the ICC prompted a lively controversy concerning the rationales underlying its establishment as well as the rationales underlying international criminal law more generally.8 Many theorists justify ICL on the basis of the traditional rationales of national criminal law: deterrence,9 retributivist theories,10 educational theories,11 expressivist theories,12 etc. Each one of these theories has been used to justify national criminal law and, once ICL has been established, these rationales have been extended to justify ICL. Under this view, ‘international criminal law provides an answer to the failure of traditional mechanisms for protecting human rights’, that is, the failure of national legal systems.13 Other proposed justifications reject this view and, instead, aimed to provide distinct justifications for the establishment of ICL. These include, for instance, the argument that ICL assists in producing an accurate historical record of atrocities.14 All these theories have been subjected to harsh criticism.15 Yet our primary interest here is not to evaluate the soundness of these theories or to identify their strengths and weaknesses, but rather to highlight one feature that is shared by all of them. None of the traditional justifications for international criminal law takes seriously what we call inter­nation­al­ism. In other words, while all these theories purport to justify ICL, they do not establish the distinct features that the institutions that are in charge of interpreting or enforcing ICL must have, namely that such institutions must represent the international community and that their capacity to do so is necessary to advance or realize the values 8  For a comprehensive list of the rationales justifying the establishment of the ICC, see Hans PeterKaul, ‘International Criminal Court (ICC)’, Max Planck Encyclopedia of Public International Law (December 2010) accessed 15 June 2018. 9  See Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities’ (2001) 95 American J of Intl L 7, 12. 10  Adil Ahmad Haque, ‘Group Violence and Group Vengeance, Toward a Retributivist Theory of International Criminal Law’ (2005) 9 Buffalo Crim L Rev 273. 11  Mirjan Damaska, ‘What is the Point of International Criminal Justice’ (2008) 83(1) Chicago-Kent L Rev 329 (hereafter Damaska, ‘What is the Point of Intl Crim Justice’). 12  Robert D. Sloane, ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’ (2007) 43(1) Stanford J of Intl L 39. For an attempt to rationalize international law in general in expressivist terms, see Alex Geisinger and Michal Ashley Stein, ‘A Theory of Expressive International law’ (2007) 60(1) Vanderbilt L Rev 77. 13 Werle, Principles of ICL (n 1) 124. Some theorists believe that establishment of institutions such as the ICC is detrimental to the realization of the traditional goals of criminal law. In particular, it was argued that it has perverse effects, i.e., it is likely to lead to less rather than more punishment for human rights abuses. See e.g., Jack Goldsmith, ‘The Self-Defeating International Criminal Court’ (2003) 70 Chicago L Rev 89, 95–99 (hereafter Goldsmith, ‘The Self-Defeating ICC’). 14  Damaska, ‘What is the Point of Intl Crim Justice’ (n 11) 331. 15  For some critiques, see ibid; Goldsmith, ‘The Self-Defeating ICC’ (n 13).

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Taking Internationalism Seriously   219 that ICL is designed to promote.16 We label the view that internationalism is a necessary (rather than contingent) feature of ICL ‘robust internationalism’. Robust internationalism maintains that the institutions in charge of drafting, interpreting, and enforcing ICL represent the international community, i.e., that they speak in the name of the international community. ‘Robust internationalism’ rests on the conviction that the goals of ICL dictate that the institutions in control be organs of the inter­nation­al community.17 Thus, even if, e.g., Sweden establishes a court that is fair and effective and designed to sentence individuals who commit crimes against humanity, and even if such a court may effectively deter and serve retributivist goals, as long as it speaks in the name of the Swedish people rather than in the name of international community, it is not an appropriate tribunal to sentence violators of the ICL. Naturally, robust internationalism requires us to identify which institutions can speak in the name of the international community. As we demonstrate below, under certain conditions the Swedish court (or any other national court) can speak in the name of international rather than the national community. Yet to speak ‘in the name of ’ the international community, national courts should satisfy certain conditions. In particular, they need to be deferential to the international community; they must subject their judgments to those required by the international community and promote its interests. We will now show that none of the traditional rationales for establishing ICL takes inter­nation­al­ism seriously. As discussed already, some theories of ICL are based on the traditional justifications for the establishment of national criminal law. If ICL is designed exclusively to serve the same ends that traditional criminal law serves and to remedy the deficiencies of national legal systems, internationalism can be only contingently valuable. Take, for instance, the view that ICL can be used to deter atrocities.18 Using ICL to deter international crimes is a pragmatic extension of national legal systems. It is only the (contingent) failure of national legal systems and, in particular, their inefficacy in deterring crime that requires, under this view, the establishment of ICL.19 More generally, the failure of national legal systems in realizing the traditional goals attributed to these systems is a contingent fact. Different factual circumstances would, therefore, lead to the conclusion that inter­ nation­al institutions are obsolete. 16  Thus, it is often stated that the very same ends pursued by ICL can in principle be pursued by other entities such as nation states or international organizations. See John M. Czarnetzky and Ronald J. Rychlak, ‘An Empire of Law: Legalism and the International Criminal Court’ (2003–2004) 79 Notre Dame L Rev 55 (‘[i]f nation states are incomplete communities, then other nation states, and perhaps international organizations must assist nation states in coordinating their activities in order to foster the common good of their citizens’ 100). 17  Our chapter does not affirm that the institutions that implement ICL succeed in speaking in the name of the international community. We only maintain that to gain legitimacy they ought to do so. For the view that often international institutions do not operate in the name of humanity, see e.g., Eric Stein, ‘International Integration and Democracy: No Love at First Sight’ (2001) 95 American J of Intl L 489. 18  Akhavan, ‘Beyond Impunity’ (n 9). 19  For compelling evidence concerning the failure of national criminal law to deter atrocities, see Cassese, ICL (n 1) 3–5.

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220   Miriam Gur-Arye and Alon Harel The preamble to the Rome Statute may provide some support for this view. It asserts that: ‘Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’.20 This provision implies that the national and the international level can, in principle, substitute one another. Additional support for the view that ICL has no distinct purpose can be found in the provisions concerning complementarity. The preamble to the Rome Statute as well as Article 1 emphasize that the jurisdiction of the ICC shall complement national criminal jurisdictions. Article 17 specifies detailed conditions concerning the inadmissibility of cases that are (already) under investigation in national legal systems. Arguably, if the Rome Statute itself acknowledges the priority of national criminal law, it indicates that ICL is simply a contingent means to realize ends that could in principle equally be served by national legal systems.21 So far, we have surveyed the view that the goals of ICL are not distinct and that, consequently, ICL can be replaced by national criminal law in those cases where the instrumental justifications for ICL are absent. One can conjecture that the rationales that justify uniquely international criminal law, namely those that are not shared with national legal systems, would take internationalism seriously. Yet, this conjecture is false. Take for example the view (mentioned before) that ICL is designed to provide an accurate historical record of atrocities and that it can serve as a useful means to counter pernicious efforts to falsely rewrite history and to deny the very existence of atrocities.22 This rationale is unique to ICL and is used only rarely (if at all) to justify the establishment of national criminal law systems. This rationale also fails to take seriously inter­nation­al­ism. Using ICL to provide an accurate historical record of atrocities rests upon pragmatic or empirical features of ICL. But there is nothing that necessitates the use of the international community to realize this purpose. In fact, as one commentator noted, historians are more likely to provide an accurate historical record than the international legal community.23 Part II illustrated that internationalism is typically not taken seriously by inter­ nation­al criminal law theorists.24 The traditional justifications that allegedly ground ICL depict it as a means of realizing ends that could otherwise be realized by institutions that are not international in character. Part III will now examine whether there  are reasons to believe that internationalism is in fact an important component  of ICL. It suggests that the internal understanding of ICL favors robust internationalism.

20  Rome Statute (n 7), Preamble (emphasis added). 21  We later argue that this understanding is misleading as national courts operate on behalf of the international community. 22 Werle, Principles of ICL (n 1) 101. 23  Damasca, ‘What is the Point of Intl Crim Justice’ (n 11) 336–37. 24  For theorists who take internationalism more seriously see Part III next.

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Taking Internationalism Seriously   221

III.  Robust Internationalism as a Constitutive Component of International Criminal Law Why should one assume that internationalism matters? Why should a theory of ICL endorse robust internationalism? Why should one reject any theory that regards ICL to be only contingently or instrumentally international? Part III addresses these questions. More specifically, it maintains that internationalism should matter to theorists because it matters to practitioners and is embodied in the documents that define the inter­nation­al crimes and established the various international criminal tribunals, as well as in the legal doctrines applied by these tribunals. There is, therefore, a sense of incongruity between the official (allegedly rational and instrumental) justifications for ICL (in terms of its supposed desirable contingent effects such as deterrence and retribution) and the underlying sentiments triggering the interest and passions of those who sustain the institutions designed to interpret and enforce international criminal law. We address this issue in two steps. First, we argue that it is a virtue of a theory purporting to justify a legal or a political institution, to justify it in ways that account for its appeal in the eyes of those who establish the institution or procedure and sustain it. Second, we maintain that internationalism matters to the founders of ICL and is im­pli­ cit­ly reflected in legal doctrines. There is therefore a gap between the self-understanding of the institutions implementing ICL and the scholarly or theoretical justifications provided to it described in Part II. The failure to account for internationalism does not undermine the existing theories, but it is a major weakness, that we hope to remedy by providing a new rationale for ICL in Part IV. In Why Law Matters, one of us defended the significance of the virtue of ‘sincerity’ in political theory. Justifications of political institutions and procedures are sincere to the extent that they account for the sentiments underlying the urge to sustain or design political institutions and procedures. More specifically Why Law Matters argues that: [T]he traditional structure of justifications suffers sometimes from insincerity or inauthenticity; it fails at times to identify (or capture) the real sentiments under­lying the urge to sustain or design political institutions or procedures. The sentiments underlying and sustaining the passions of legislators, the public, and even the ­theorists themselves are grounded in different normative considerations than those officially used to defend the relevant institutions or procedures.25

In the absence of sincerity, those who participate in the designing and sustaining of political institutions fail to understand what it is that they are doing. Hence, even 25  See Harel, Why Law Matters (n 2) 4.

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222   Miriam Gur-Arye and Alon Harel perfectly sound contingent arguments for or against certain entrenched political institutions or procedures may miss the point to the extent that they rationalize ­political institutions and procedures in terms that do not capture what actually makes such institutions or procedures politically and morally attractive. Note that we do not regard sincerity as a necessary nor as a sufficient condition for the soundness of a theory. Sometimes an institution can be justified in terms that are alien to those who establish the institution. At other times, the perception of those who establish or participate in the institution that it is justified is simply wrong, and normatively the institution cannot be justified. But we believe that, when it is possible, institutions should be justified in terms that are sensitive to the sentiments of those who establish the institutions or operate them. Let us now explore the way in which ICL theorists and practitioners view their own enterprise and establish that it is typically understood in terms that resemble robust internationalism, namely terms that regards inter­nation­al­ism as an essential feature of ICL. The universalistic aspirations of ICL are reflected at the outset of the preamble of the Rome Statute establishing the ICC that states: ‘Conscious that all people 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’. In addition, the preamble also asserts that ICL protects ‘peace, security and [the] well-being of the world’. Article 5 speaks of serious crimes that are ‘of concern to the international community as a whole’.26 As will be shown in this chapter, the crimes that are of concern to the international community are all international crimes protecting international rather than local interests. These statements indicate the perception that ICL seeks to protect universal values, the protection of which is required to avoid harm to the international community as a whole (rather than only to the domestic community). Such a perception is shared by both theorists and international tribunals. Theorists believe that, by stigmatizing extreme forms of inhumanity, ICL helps to protect human rights and by that facilitates gradual positive moral changes in the international sphere.27 The International Criminal Tribunal for the former Yugoslavia (ICTY) expressed a similar view according to which the punishment for crimes against humanity expresses ‘the outrage of the international community at these crimes’; the punishment serves further to ‘make plain the condemnation of the international community of the behavior in question and show that the international community was not ready to tolerate serious violations of international law and human rights law’.28 26  Rome Statute (n 7), Preamble, art 5 (emphasis added). 27 Werle, Principles of ICL (n 1) note 1 para 100; Damasca, ‘What is the Point of Intl Crim Justice’ (n 11) 345; Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’ 13 EJIL 561, 591–2. An interesting example of the impact that the existence of the Court has on the deliberations of politicians can be found in the sharp exchange between Foreign Minister Shimon Peres and the Infrastructure Minister Avigdor Liberman concerning the best ways to react to terrorism. This is documented in Leila Nadya Sadat, ‘The Legacy of the ICTY: The International Criminal Court’ (2002) 37 New England L Rev 1073–74. 28  The Prosecutor v. Aleksovski (Judgment) IT-95–14/1 (24 March 2000) para 185 (ICTY, Appeals Chamber).

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Taking Internationalism Seriously   223 The universal values protected by ICL require that international crimes have a link to the international community. Such a link might be based either on the cross-border nature of the crime (such as war crimes, piracy), or on an infringement of an interest that it is the business of the international community as a whole to protect (such as geno­cide or crimes against humanity). To accord the status of international crime, both genocide and crimes against humanity have a collective dimension. The international prohibition on genocide protects the right of ‘a national, ethnical, racial or religious group’29 to exist, and ‘to contribute to a pluralistic world’.30 The right extends beyond the physical existence of the members of the group; the prohibition on genocide protects the unique social entity of the group, rather than just the aggregate of the individuals who compose the group.31 The link between crimes against humanity, committed against a civilian population, and the international community as a whole is more controversial. Historically, crimes against humanity were linked to armed conflicts. In contemporary ICL, crimes against humanity have to be committed ‘as part of a widespread or systematic attack directed against any civilian population’32 whether or not the attack was part of an armed conflict. While discussing the values that crimes against humanity protect, some theorists treat ‘humanity as such’33 as the protected interest; others are more specific and emphasize ‘the core humanity that we all share and that distinguish us from other natural beings’,34 or ‘shared humanity’ by virtue of which ‘fellow human beings . . . have a claim on our respect and concern’.35 For the purpose of our argument, there is no need to take a stand on the specific nature of the interest protected by crimes against humanity. It is enough to note that the international nature of these crimes, the unique link to the inter­nation­al community, has been emphasized by both theorists and international tribunals. Most indicative of all is the assertion by the ICTY (Appeals Chamber) who ruled that: Rules proscribing crimes against humanity address the perpetrator’s conduct not only towards the immediate victim but also towards the whole of humankind . . . . Because of their heinousness and magnitude they constitute an egregious attack on human dignity, on the very notion of humaneness. They consequently affect, or should affect, each and every member of mankind, whatever his nationality, ethnic group or location’.36

29  See Rome Statute (n 7), art 6 (genocide requires an ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group’). 30  Kai Ambos, ‘The Crimes and Sentencing’, Treatise on International Criminal Law, vol II (OUP 2014) 3. 31  ibid 4; Werle, Principles of ICL (n 1) 256–57. 32  Rome Statute (n 7), art 7. 33  See Antonio Cassese, Paola Gaeta, and John R W D Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol I (OUP 2002) 353, 360; Werle, Principles of ICL (n 1) 292. 34  David Luban, ‘A Theory of Crimes against Humanity’ (2004) 29 Yale J of Intl L 85, 86. 35  Duff, ‘Authority and Responsibility in ICL’ (n 6) 601. 36  The Prosecutor v. Erdemović (Judgment) IT-96-22-A (7 October 1997), Joint Separate Opinion of Judge McDonald and Judge Vohrah, para 21 (ICTY, Appeals Chamber) (hereafter Erdemović case).

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224   Miriam Gur-Arye and Alon Harel The conclusion that ICL protects universal values, and that the provisions protecting these values are, by their nature, international, are (themselves) insufficient to establish robust internationalism. Arguably, national institutions can promote universal values; and there are indeed domestic courts that protect universal values. To establish inter­ nation­al­ism (as we understand it), we need to show further that the institutions that are in charge of interpreting and enforcing international criminal law are international not by chance and not due to factual contingencies. Rather, internationalism must be a constitutive component of these institutions. In the rest of this part, we will show that a detailed analysis of the self-understandings of those who established the ICL institutions demonstrates that all these institutions and the doctrines they employed are quint­es­ sen­tial­ly ‘international’. More particularly, to qualify as a tribunal that applies international criminal law, a tribunal must act on behalf of the international community; thereby it becomes an organ of the international community. To do so it must shed off its national characteristics and serve the values of the international community. To establish this, let us examine in greater detail the tribunals that implement inter­nation­al criminal law. There are four types of tribunals, all of them established by inter­nation­al legal sources: a) The International Criminal Court established by the Rome Statute (ICC); b) The ad hoc International Criminal Tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR); c) Domestic courts exercising ‘universal jurisdiction’; d) Mixed or Hybrid ad hoc tribunals, such as the special courts for Sierra Leone, East Timor, Kosovo, and Cambodia.

A.  The ICC The internationalism of the ICC is reflected in the purpose of establishing it, in the nature of crimes under its jurisdiction, and in the principles it has to apply while dealing with these crimes—all of them have an international component. The ICC was established by the Rome Statute, in 2002 in order ‘to guarantee lasting respect for and the enforcement of international justice’ (preamble).37 To achieve that goal the Rome Statute established a permanent international criminal court that has an ‘international legal personality’ (Article 4.1, emphasis added). The ICC has jurisdiction over ‘the most serious crimes of concern to the international community as a whole’ (Article 5.1). The Rome Statute defines four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression (Article 5.1). In dealing with these crimes, the ICC has to apply the following international norms: first and foremost, those that are defined by the Rome Statute (Article 21(a)); secondly, ‘treaties and the principles and rules of international law’ (Article 1(b)). Where there are no explicit international principles, the ICC ought to apply ‘general principles of law derived by the 37  For a description of the establishment of the ICC, see Mahnoush H. Arsanjani, ‘The Rome Statute of the International Criminal Court’ (1999) 93 American J of Intl Law 22 (1999).

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Taking Internationalism Seriously   225 Court from national laws of legal systems of the world . . . provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards’ (Article 1(c)). As already noted, the international jurisdiction of the ICC is based on com­ple­men­tar­ity, i.e., the Court will generally defer to national jurisdictions provided that domestic investigations or prosecutions are conducted, unless the state is unwilling or unable to properly investigate or prosecute.38 This may seem to imply that national courts are an appropriate institution to engage with ICL. However, in discussing universal jurisdiction, we will soon show that this view is false. When national courts apply international criminal law, they effectively become organs of the international community.39

B.  The Ad Hoc Tribunals The ICTY and the ICTR were established by the United Nations Security Council in accordance with Chapter VII of the UN Charter.40 The ICTY was established in 1993 ‘for . . . prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia’.41 The ICTR was established in 1994 to ‘prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighboring States, between 1 January 1994 and 31 December 1994’.42 Although the ad hoc tribunals and national courts have concurrent jurisdiction for cases falling within their jurisdiction, as opposed to the ICC, both the ICTY and the ICTR have ‘primacy over the national courts of all States’.43 Given these facts, it is easy to conclude that according to the ICL founders’ selfunderstandings, both the ICC and the ad hoc tribunals are international entities and that their sole mission is to promote the interests of the international community. 38  Rome Statute (n 7), art 17. On the principle of complementarity, see Jann K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdiction (OUP 2008); Mohamed M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Martinus Nijhoff 2008); Jo Stigen, The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (Martinus Nijhoff 2008). 39  See the discussion of universal jurisdiction at Part III.C. 40 For a description of the establishment of these courts and evaluating their performance, see Lilian A. Barrira and Steven D. Roper, ‘How Effective Are International Criminal Tribunals: An Analysis of the ICTY and the ICTR’ (2005) 9 Intl J of Human Rights 349. 41  Security Council resolution 827 (1993) on establishment of the International Tribunal for Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UNSC Res 827, 3217th Mtg, UN Doc S/RES/827 (25 May 1993). 42  Statute of the International Criminal Tribunal for Rwanda (ICTR) established by UNSC Res 955, 3453th Mtg, UN Doc S/RES/955 (8 November 1994), art 1 (hereafter ICTR Statute). 43  UN Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704 (3 May 1993), art 9(2) (hereafter ICTY Statute); ICTR Statute (n 42), art 8(2).

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C.  Universal Jurisdiction The nature of national courts exercising universal jurisdiction is less clear. What, if anything, makes such institutions international? What, if anything, elevates them to the status of organs of the international community? Our answer is based both on our examination of the intentions of the founders of these institutions and, more im­port­ ant­ly, on the legal doctrines that they employ. Under the rule of universal jurisdiction, any state may prosecute offenders for certain international crimes even when the state lacks a traditional nexus with the crime, the alleged offender, or the victim.44 Historically,45 universal jurisdiction can be traced back to the prosecution and punishment of the crime of piracy.46 After the Second World War, the universal jurisdiction was expanded through the establishment of the Nuremberg and Tokyo International Military Tribunals in order to prosecute senior German and Japanese officials, respectively, for crimes against humanity, war crimes, and the crime of aggression.47 Later on, other international conventions and rules of customary law enshrined universal jurisdiction as a permanent feature of ICL. Universal jurisdiction was later used in a number of cases, starting with the Eichmann case in 1961,48 the Demanjuk case in 1985,49 the Pinochet case in 1999,50 and the Butare Four case in 2001.51 The traditional justification for the universal jurisdiction relies upon its ‘universalism’. International crimes are crimes against the international community as a whole. Therefore, the international community, through all its components—states 44  See e.g., Kenneth C. Randall, ‘Universal Jurisdiction under International Law’ (1998) 66 Texas L Rev 785–88; International Law Association Committee on International Human Rights Law and Practice, Final Report on the Exercise of Universal Jurisdiction in respect of Gross Human Rights Offences (London Conference, 2000) 2; Mary Robinson, ‘Foreword’ in Stephen Macedo (ed), The Princeton Principles on Universal Jurisdiction (Princeton UP 2001) 16. 45  For the historical survey, see Werle, Principles of ICL (n 1) 183–218. 46  See for instance United States v. Smith, 18 US (5 Wheat) 153 (1820) 161–62. 47  United Nations, Charter of the International Military Tribunal—Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, 8 August 1945, 82 UNTS 279, 59 US Stat 1544, 1574, art 6 (hereafter IMT Statute); Charter of the International Military Tribunal for the Far East, 19 January 1946, TIAS No. 1589, 4 Bevans 20. For an elaborate discussion of these trials, see Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (Knopf 1992); Richard Overy, ‘The Nuremberg Trials: International Law in the Making’ in Philippe Sands (ed), From Nuremberg to The Hague: The Future of International Criminal Justice (CUP 2003) 1–29; Neil Boster and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (OUP 2008). 48  A-G of the Government of Israel v. Eichmann (1962), Crim Appeal 336/61, 36 Intl L Rep 277, 298–300 (Israel Sup Ct) (English translation) (hereafter Eichmann (1962)). 49  The State of Israel v. Demjanjuk, Crim case 373/86 (District Ct of Jerusalem) (April, 1988), revised Crim Appeal 347/88 (Israel Sup Ct, 29 July 1993). For the English translation, see Asher Landau (ed), The Demjanjuk Trial (Hever Translators’ Pool (trs), Israel Bar Publishing House 1991). 50  Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet [1999] UKHL 17, [1999] 2 WLR 827. 51  Cour d’Assises de Bruxelles, 8 June 2001, documentation of the whole trial is available online at accessed 16 June 2018.

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Taking Internationalism Seriously   227 or inter­nation­al organizations—must prosecute and punish the perpetrators of such crimes. The view that in exercising universal jurisdiction the tribunals serve as agents of the international community was explicitly expressed in the Nuremberg trials. In his opening statement, Robert Jackson, the Chief US Prosecutor in the trials, stated: The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.52

Hence, the Nazi criminals are brought to court for crimes that civilization itself cannot tolerate and they are brought before a court of humanity: ‘Where law exists a court will rise. Thus, the court of humanity, if it may so be termed, will never adjourn’.53 Even when domestic courts—and not just international tribunals such as the Nuremberg military tribunal—exercise universal jurisdiction, they act on behalf of the international community. International law empowered, and at times even obliged, states to prosecute international crimes that harmed the international community as a whole. The Israeli Supreme Court in the Eichmann case—considered to be the corner stone for the exercise of universal jurisdictions by domestic courts—made this view explicit: Not only are all the crimes attributed to the Appellant of an international character, but they are crimes whose evil and murderous effects were so widespread as to shake the stability of the international community to its very foundations. The State of Israel, therefore, was entitled, pursuant to the principle of universal jurisdiction, and acting in the capacity of guardian of international law and agents for its enforcement, to try the Appellant. This being the case, it is immaterial that the State of Israel did not exist at the time the offences were committed.54

The view that in exercising universal jurisdiction domestic courts act as agents of the international community has been expressed in the academic literature as well: [When] individual nations act pursuant to universal jurisdiction, in theory they are acting pursuant to an implied mandate from the collective international community.55

52 See Robert Jackson, ‘Opening Address for the United States’ accessed 16 June 2018 (emphasis added). 53  Quoted in A-G of the Government of Israel v. Eichmann [1962] Crim Case 40/61, 36 Intl L Rep 5 accessed 16 June 2018, para 26 (District Ct of Jerusalem). 54  Eichmann (1962) (n 48) para 12 (emphasis added). 55 Anthony Sammons, ‘The “Under-Theorization” of Universal Jurisdiction: Implications for the Legitimacy on Trials of War Criminals by National Courts’ (2003) 21 Berkley J of Intl L 111, 141 (hereafter Sammons, ‘The “Under-Theorization” of Universal Jurisdiction’).

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228   Miriam Gur-Arye and Alon Harel Under this view: [B]y exercising universal jurisdiction, national courts are transformed into ­inter­nation­al institutions. This transformation is grounded in the conviction that the prosecuting state is acting on behalf of all states.56

It follows that universal jurisdiction is very different from other instances of extraterritorial jurisdiction that instead require a nexus between the state and the crime, the crim­inal or the victim. In cases of extraterritorial jurisdiction based on such a nexus, the state operates in its own name, to promote its own interests and on behalf of its own citizens. In the case of universal jurisdiction, the state operates on behalf of the international community in order to promote the interests of the international community as a whole. As Sammons argued: As a state’s sovereignty transfers to the international community when certain ‘heinous’ crimes are committed within the state, a particular nation that assumes the authority to prosecute essentially acts as the agent of the international community.57

So far, we have established that tribunals that apply universal jurisdiction regard themselves as operating in the name of the international community and are described in these terms by academics. Arguably, however, this is mere rhetoric designed to dramatize the significance of national courts. To establish the real importance of this (self) depiction it is necessary to establish that it has doctrinal implications. Typically, when the extraterritorial jurisdiction is based on a special nexus to the state, the state is free to define and design its criminal norms in accordance with its own domestic legal tradition. In contrast, when the state exercises universal jurisdiction, it is highly constrained. The crimes that give rise to universal jurisdiction are defined by international law; further, the state often has to deviate from its own legal traditions when it invokes universal jurisdiction. The view that in exercising universal jurisdiction domestic courts have to grant primacy to ICL over domestic criminal law is not explicitly supported by the Rome Statute, which does not require full incorporation of international criminal law into domestic law. States can ostensibly ‘rely on ordinary [domestic] criminal law to cover crimes under international law, for example under the definitions of murder, deprivation of liberty and the like.’58 Yet as maintained by Werle: [N]on incorporation of international criminal law into domestic law is not a recommended long term solution. To comply fully with the spirit and the plan of the ICC, states should adapt their substantive criminal law.59 56  Christopher C. Joyner, ‘Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability’ (1996) 59 Law and Contemporary Problems 153, 165. 57  Sammons, ‘The “Under-Theorization” of Universal Jurisdiction’ (n 55) 137. 58 Werle, Principles of ICL (n 1) 319. 59  ibid 321.

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Taking Internationalism Seriously   229 The spirt of the ICL has come to light in practice through the legal doctrines of ICL. In particular, we show that in exercising universal jurisdiction domestic courts should be completely deferential to the international community. One indication is the case of Prosecutor v. Bagaragaza (2006) in that the ICTR Appeals Chamber rejected Norway’s request to refer the case to Norway in order to enable it to prosecute the defendant for murder. The reason for the refusal was that Norwegian law does not contain a prohibition on genocide.60 It follows that an ICL case would have been referred to Norway only when Norway acts in the name of the international community and prosecutes for the international crime of genocide, rather than for its domestic crime of murder. German jurists were aware of this observation and acted accordingly. The German parliament enacted ‘Code of Crimes against International Law’ (2002),61 which enables German domestic courts to prosecute core international crimes, as defined in the Rome Statute. In prosecuting these crimes, domestic courts apply the general principles of German criminal law, unless they contradict the international principles specified in the Rome Statute. Where there is a contradiction, the German courts have to deviate from the domestic principles of German criminal law and apply the international principles as are set out in the Code of Crimes against International Law.62 The fact that German domestic courts apply a specific code of crimes that grants primacy to ICL principles reveals that while dealing with international crimes (such as genocide or crimes against humanity) the German courts act on behalf of the international community; they perceive of themselves as serving the international community. The courts of Germany shed their Germanic features, transforming themselves into an organ of the inter­ nation­al community. In this context, a clarification is needed. As mentioned before, the exercise of universal jurisdiction does not require nexus between the state, the victims, and offenders. However, in practice such a nexus might be important as a means of conveying the message that justice is done to the local population who was subject to atrocities, and mainly to the victims. When there is a nexus between the state and crimes such as genocide or crimes against humanity, the state in fact has two options in dealing with such crimes. Its domestic courts can act in the name of the international community by exercising universal jurisdiction. In such a case the domestic courts convey the message that the international community as a whole condemns the atrocities committed within the state’s territory, or against the state’s population, or by offenders who are citizens of the state. By doing so, domestic courts transform themselves into an organ of the inter­nation­al community and are obliged to apply international criminal law principles and doctrine. However, states might choose to prosecute atrocities committed in their 60  (Decision on Rule 11bis Appeal) ICTR-05-86-AR11bis, (30 August 2006), para 17 (ICTR, Appeals Chamber). 61 For the English translation of the code see accessed 16 June 2018. 62  See ibid ss 3–5 relating to acting in obedience to illegal military order (section 3), responsibility of superior (section 4), and non-applicability of the statute of limitations (section 5).

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230   Miriam Gur-Arye and Alon Harel territory, or against their citizens or by their citizens in the states’ own names, as part of their obligations towards their own citizens. In such a case, even when the state prosecutes offenders accused of genocide or crimes against humanity, as defined in its domestic criminal law, the crimes are not international crimes and the domestic courts are not international tribunals. Domestic courts that deal with these crimes are obliged to apply domestic criminal law principles and doctrines. The rulings of the domestic courts in such cases do not serve as binding precedent for the international criminal law. A state might choose to prosecute atrocities committed in its territory as international crimes, dealt with by its domestic courts in the name of the international community, rather than in the name of the local polity, in cases of transition when the legitimacy of the new regime has not yet been established. Preferring international over national criminal law in such cases might reinforce the victims’ confidence in the system. The same tribunal may sometimes (with respect to some cases) apply national law and, at other times (with respect to other cases), apply international law. Yet, with respect to a single case, it must regard itself either as a domestic court, which speaks in the name of the local polity and is bound by local rules and doctrines, or as an international one, speaking in the name of the international community, and has to follow international rules and precedents even when they contradict the local ones. To explain the implications of the different roles domestic courts might have in dealing with offences like genocide or crimes against humanity, let us take the Erdemović case (1997) as an example.63 In that case, the Appeals Chamber of the ICTY ruled (in 3:2 majority) that duress does not afford a complete defence to crimes against humanity when it involves the killing of the innocent. The majority reached this conclusion despite the conflicting approaches of the various relevant legal systems. Most common law jurisdictions do not grant duress when the defendant kills innocent persons to save her own life, whereas civil law jurisdictions regard duress as a complete excuse in such cases. On 2002, the Rome Statute adopted the minority’s view in the Erdemović case, according to which duress might be a defence to crimes against humanity, even when it involves killing the innocent. The question whether domestic courts in civil law jurisdictions will excuse offenders, who under duress commit a crime against humanity, in the period between 1997 (after the Erdemović case) and 2002 (before the Rome Statute) depends on behalf of whom the domestic courts operate. In exercising universal jurisdiction, domestic courts act on behalf of the international community. Acting on behalf of the international community imposes obligations on domestic courts to defer to the judgments of the international criminal tribunals. Therefore, domestic courts exercising universal jurisdiction will be obliged to follow the ruling of the ICTY in the Erdemović case and to convict a defendant charged with crimes against humanity who sacrificed the life of innocent person/s to save his own on grounds of duress.64 By contrast, domestic courts who act on behalf of 63  See n 36. 64  Rome Statute (n 7), art 31(d). It is important to note that we do not take a stand on the debate following the Erdemović case with regard to whether or not duress should excuse crimes against humanity. cf eg Luis E. Chiesa, ‘Duress, Demanding Heroism, and Proportionality’ (2008) 41 Vanderbilt J of Transnational

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Taking Internationalism Seriously   231 the state in whose territory the crime has been committed, or was directed against its citizens or committed by its citizens, are obliged to apply domestic doctrines. In such a case, domestic courts in civil law jurisdictions might excuse a defendant charged with a crime against humanity, as defined by domestic law, even when it involves killing of the innocent. In the same spirit, after 2002, domestic courts in common law legal systems, acting in the name of the international community, will have to follow the Rome Statute and to grant an excuse to crimes against humanity even when the life of innocent persons were sacrificed; whereas when these courts act in the name of the local polity, they will refuse to grant such an excuse.

D.  Hybrid Tribunals Since the beginning of the 21st century, several hybrid criminal tribunals have been established in post-conflict situations in order to address atrocities committed during the conflict, such as the special courts for Sierra Leone,65 East Timor,66 Kosovo,67 and Cambodia.68 Such courts are ‘hybrid’ because both the institutional apparatus and the applicable law consist of a blend of the international and the domestic. Foreign judges sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local lawyers working with those from other countries. The judges apply domestic law that has been reformed to accord with international standards.69 Are these hybrid criminal tribunals in essence organs of the international community or are they national courts applying international criminal law? Supporters of hybrid tribunals argue that hybrid tribunals that are located in the very same places where the relevant atrocities took place will gain legitimacy in the eyes of the local population, especially the victims—a legitimacy that is more difficult to achieve L 741, 770–72; Rosa E. Brooks, ‘Law in the Heart of Darkness: Atrocity & Duress’ (2003) 43 Virginia J of Intl L 861, 875–76; Alexander  K.A.  Greenawalt, ‘The Pluralism of International Criminal Law’ (2011) 86(3) Indiana L J 1063, 1118. 65  The Special Court for Sierra Leone (SCSL) has been established by the Agreement between the United Nations and Sierra Leone that was concluded pursuant to UNSC Res 1315, 4186th Mtg, UN Doc S/RES/1315 (14 August 2000). 66 The Special Panels for Serious Crimes were established by the United Nations Transitional Administration in East Timor (UNTAET) in 2000 pursuant to Regulation no. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction Over Serious Criminal Offences, UN Doc UNTAET/REG/2000/15 (6 June 2000). 67  The Kosovo courts were established through regulations of the United Nations Interim Mission in Kosovo (UNMIK) 1999. 68 The Extraordinary Chambers in the Courts of Cambodia were established by an agreement between the Cambodian government and the UN (adopted by the UN General Assembly on 22 May 2003—UNGA Res 57/228B). The Cambodian Parliament approved the agreement and incorporated the Extraordinary Chambers as part of the Cambodian legal system. 69  Laura A. Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97(2) American J of Intl 295 (hereafter Dickinson, ‘The Promise of Hybrid Courts’).

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232   Miriam Gur-Arye and Alon Harel through a ‘purely’ international tribunal convening from afar, distanced from the victims, and speaking in a foreign tongue.70 The implementation of the international crim­inal law by domestic courts, it has been argued, will be better achieved through hybrid tribunals: Because the work of the international courts is physically remote from the countries in question, and the judges and personnel have not been drawn from the local popu­la­tion, there is little opportunity for domestic legal professionals to absorb, apply, interpret, critique, and develop the international norms in question, let alone for the broader public to do so. . . . [T]he mere existence of an international court does not create a channel for its jurisprudence to be used and developed, or even merely respected and understood, on a local level.71

The need to both gain legitimacy in the eyes of the local population, and succeed in implementing the jurisprudence of international criminal law, stems—in our view— from the nature of the hybrid tribunals as international tribunals. Precisely because these tribunals speak in the name of the international community, there is a need to bring the international community’s judgments closer to both the local populations and professionals. This will enable domestic courts to better fulfill their obligation to subject their judgments to the standards of the international community and to promote inter­ nation­alist interests.

IV.  Taking Internationalism Seriously: The Case for Robust Internationalism Part III established that the tribunals that implement ICL are invariably international tribunals that operate in the name of the international community. This part provides a new rationale justifying the internationalist characteristics of such tribunals. More specifically, this part defends robust internationalism; it argues that international criminal law is not contingently international. Internationalism is necessary for successfully performing certain functions. In particular, it is essential for communicating authoritative judgments concerning what counts as ‘international crimes’ and how these crimes should be punished. Judgments determining the content of international crimes and punishing those who committed these crimes must be made by an international entity— an entity that can speak in the name of the international community, i.e., an entity whose judgments can be attributed to the international community. Accordingly, under our view, it is not that international entities are better in making judgments with regard to 70  Etelle  R.  Higonnet ‘Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform’ (2006) 23 Arizona J of Intl and Comparative L 347, 362–67. 71  Dickinson, ‘The Promise of Hybrid Courts’ (n 69) 305.

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Taking Internationalism Seriously   233 the scope of international crimes and the appropriate punishments because they are wiser or more likely to be impartial. No instrumental considerations are relevant for our analysis. Rather, international entities are the only entities whose judgments concerning international crimes and the appropriate punishment count. We develop the argument in two steps. First, we illustrate the importance of agency and define the concept of an agent-dependent enterprise—enterprises whose success hinges on the identity or the status of the agent performing the enterprise. We also provide examples of agent-dependent enterprises. We later argue that international crim­inal law is an agent-dependent enterprise. It provides goods that must, as a conceptual matter, be provided by an international agent, i.e., an agent who speaks in the name of the international community and whose judgments can be attributed to the inter­nation­al community. Some agents are chosen to execute a particular enterprise because of their competence or excellence in doing so; significantly, this competence or excellence is evaluated independently of the agent’s own identity or status. At other times, however, excellence or competence in executing an enterprise is inseparable from the identity or the status of the agent. In the latter case, the quality of the execution of the enterprise cannot be measured independently of the agent’s identity. In a previous work, one of us developed the concept of ‘agent-dependent enterprise or practices’, that is enterprises or practices whose success depends on the agent performing them.72 One example of an ‘agent-dependent enterprise’ is the blood feud. Blood feuds are ritualized ways of seeking vengeance for a wrong by killing or punishing a person belonging to a tribe or to a clan of the original perpetrator. Anthropologists found out that it is only a male relative of the deceased that is capable of performing a blood feud. A killing by the ‘wrong agent’ is not merely an inappropriate or an impermissible blood feud; it does not even count as a blood feud, and it cannot redress the injustice.73 The notion of an ‘agent-dependent enterprise’, however, is not a relic of the past. In a well-known Israeli case, Chief Justice Beinisch decided to strike down a statute authorizing the establishment of private prisons.74 Chief Justice Beinisch argued that prisons must be operated by the state not because state prisons are likely to be better, safer, or more humane, but because imprisonment is among ‘the state’s most distinctive powers as the embodiment of government’.75 The agent (state prison), rather than the mere performance of the incarceration, is of key significance. 72  The next two paragraphs are based on Harel, Why Law Matters (n 2) 69–81. 73  Pamela Barmash, Homicide in the Biblical World (CUP 2005) 24. 74  Academic Center et al v. Minister of Finance translation [2009] HCJ 2605/05 (Israel Sup Ct). For an English translation of the ruling see , accessed 12 October 2019. 75  ibid. Additional support for the view that regards punishment as a good that must be produced by a specific agent can be found in Locke. See John Locke, A Second Letter Concerning Toleration in The Works of John Locke (Thomas Davison 1823) (Locke believes that in addition to the requirement that the imposition of the punishment by an agent should be ‘directly useful for the procuring of some greater good’, the punishment also ought to be inflicted by someone ‘who has commission and power to do so’).

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234   Miriam Gur-Arye and Alon Harel To establish robust internationalism, one needs to demonstrate that international criminal law is an ‘agent-dependent enterprise’—that the international community is necessary for realizing important functions of international criminal law. To establish this, we draw upon the expressive function of the criminal punishment. Sanctioning a wrongdoer is an expressive or a communicative act of condemnation. It is a public manifestation of condemnation and disapprobation of the criminal deeds.76 Unlike deterrence and other conventional goals of punishment, public condemnation is possible in the first place only if it emanates from the appropriate agent—one that represents the public. Condemnation is ineffective unless it is communicated by an agent that is in a privileged status compared to that of the person subjected to the condemnation, i.e., an agent whose judgments concerning the appropriateness of the behaviour are worthy of attention or respect. Otherwise, an infliction of ‘a sanction’ amounts to an act of violence that does not actually communicate censure for the relevant wrongful acts. This explains why a dog that bites a burglar is not typically described as inflicting a punishment. While the dog’s bite may be painful and related causally to the wrong, it does not convey condemnation of the act of burglary. ICL serves to pronounce the wrongfulness of actions directed against the inter­ nation­al community. Yet, given the equal sovereignty of each state, no individual state can make an authoritative pronouncement concerning the wrongfulness of inter­nation­al wrongs. A judgment made by one state can always be challenged or questioned by another state. The judgment that a particular act is a wrong directed against the inter­ nation­al community must therefore be made by an entity that is superior to the states, i.e., an institution that can speak in the name of the international community. Just as criminal law must be implemented by the state (given that no individual person can make authoritative judgments as to what constitutes a criminal wrong against the domestic polity), the judgment that an act is a wrong against the international community must be made by the international community (given that no state can make authoritative determinations that bind other states or the entire international community). Thus, even if ICL does not reinforce conformity with international duties or guarantee better protection of human rights, it still serves an important goal, namely conveying the judgment that certain actions are international wrongs. In the absence of tribunals that can speak in the name of the international community, punishing a person for international crimes is illegitimate. When a national legal system imposes punishments for international crimes, the criminalization and the infliction of 76  This view is not unique to international crimes and it is shared by many contemporary legal the­or­ ists. An early articulation of this claim was developed by Robert Nozick who believes that ‘[r]etributive punishment is an act of communicative behaviour’, and that retribution achieves two goals. The first is ‘to connect the criminal to the value qua value’, and, the second is to connect the wrongdoer to the value in a way ‘that value qua value has a significant effect in the criminal’s life, as significant as his own flouting of correct values’. See Robert Nozick, Philosophical Explanations (Harvard UP 1981) 370. See also Joel Feinberg, ‘The Expressive Function of Punishment’ in Doing and Deserving; Essays in the Theory of Responsibility (Princeton UP 1970) 95, 98; Anthony Duff, Punishment, Communication, and Community (OUP 2001).

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Taking Internationalism Seriously   235 sanctions hinges on the state’s judgment rather on a judgment by the inter­nation­al community. The state lacks the moral standing to speak and act in the name of the international community. Whereas the international community can claim that its judgments deserve attention, the individual state cannot make such a claim. If a state condemns officials of other states for violating their international duties, such a condemnation has no authoritative force; it is only the international community that can make such normative pronouncements. This observation indicates that the view that ICL undermines state sovereignty is false.77 As a matter of fact, ICL is a means of honouring the sovereignty of states in that it protects states from interference by other states and facilitates such interference only if it is initiated by the international community.78 Note that we do not make any claim here as to the success of the international tribunals in ‘speaking in the name of the international community’ or ‘representing it’.79 Some scholars have pointed out that the international community is dominated by power­ful states and that often tribunals that purport to represent the international community fail to do so. We do not deny that is may be true. We only maintain that to gain legitimacy they ought to do so. Naturally, this analysis requires us to identify which institutions are ‘international institutions’ who have the moral standing to speak ‘in the name of ’ the international community. As we have seen, domestic courts exercising universal jurisdiction can act in the name of the international community. In such cases, domestic courts function as international institutions that have to subject their judgments to the standards of the international community and promote its interests. This observation might raise a concern: we stated earlier that the state cannot act on behalf of the international community and make judgments in its name. Why can national tribunals act in the name of the international community? What makes them legitimate international institutions capable of executing ICL? We believe that the willingness to accord national tribunals a legitimate international status, which makes them capable to speak in the name of the international community, is a by-product of both historical and functional reasons. Historically, the development of international law and the recognition that international criminal law standards are necessary to protect universal values took place before the development of distinct international institutions authorized to enforce the international criminal standards. The enforcement of these standards was done through universal jurisdiction exercised either by ad hoc international tribunals (such as the Nuremberg and Tokyo International Military Tribunals) or by national tribunals that were authorized to speak in the name of 77  For a discussion on the relations between international criminal law and the sovereignty of states, see Robert Cryer, ‘International Criminal Law vs State Sovereignty: Another Round?’ (2005) 16(5) European J of Intl L 979. 78  It can be argued that even this limited interference on the part of the international community is unjustified. What we say here is merely that this interference is rather limited as it rests on judgments by the international community rather than by other states. 79  See also n 17.

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236   Miriam Gur-Arye and Alon Harel the international community. Functionally, in exercising universal jurisdiction national tribunals have to follow the international criminal law standards and to defer to the international criminal law precedents. Therefore, the decisions of national tribunals in exercising universal jurisdiction can in principle be monitored effectively by the inter­nation­al community.80 These are the reasons that helped to entrench a convention under which national tribunals exercising universal jurisdiction are appropriate agents to speak in the name of the international community. Let us see how our analysis can address the important challenge pressed by Anthony Duff to ICL: When an ICC defendant asks ‘by what right do you try me?’ what kind of answer could be given? An answer must show that the court acts in the name of some group to whom the defendant is answerable for his alleged crime. It is not enough to argue that the wrongs he allegedly committed are terrible wrongs whose perpetrators ought to be punished: the trial’s legitimacy depends upon the acceptability of the court’s claim to act in the name of those who have the right to call the defendant to account. In whose name then can the ICC claim to act? To whom are the per­pet­rators of such crimes answerable?81

According to Antony Duff, defendants who commit international crimes must answer to their local communities. However, there might be cases in which, due to the ‘widespread and systematic attacks on civilian populations’, there is ‘no surviving political community to which perpetrators and victims belong’.82 In such cases, defendants ‘must answer . . . to humanity’.83 A human community in this context ‘need not involve close ties or deep structures of richly shared interests’. Rather, human community is composed of ‘fellow human beings’ who ‘have a claim on our respect and concern simply by virtue of our shared humanity’.84 We agree with Duff ’s observation that the ICC should speak in the name of a community that is distinct from the local community (the state). However, as opposed to Duff, we embrace internationalism enthusiastically and regard it as necessary for the very intelligibility of ICL. It is only the international community that can make judgments with respect to these crimes, and therefore the only proper tribunal to whom we are accountable for international crimes are international tribunals. Hence, we insist to conceptualize national courts exercising universal jurisdiction as international (or, more accurately as tribunals that speak in the name of the international community) rather than national tribunals. 80  Arguably, one could ask if national courts can act in the name of the international community why cannot private institutions punish in the name of the state? The reason rests on a functional difference between private and public institutions. Private institutions (as opposed to public ones) have always sectarian interests that can legitimately guide their decisions. This is what characterizes them as private. Hence, decisions of private institutions can never be fully controlled by the state. The state can impose limits and define goals but it cannot fully control the manner in which these goals are realized. See Harel, Why Law Matters (n 2) ch 3. 81  See Duff, ‘Authority and Responsibility in ICL’ (n 6). 82  ibid 599. 83  ibid 601. 84 ibid.

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Taking Internationalism Seriously   237

V. Conclusion This chapter challenges the traditional justifications of ICL that regard internationalism as a contingent feature of international criminal law. It also challenges the conviction that what is right and wrong can be determined independently of the agent who makes the decision and, consequently, that selecting the right agent to implement ICL is simply (and invariably) a matter of selecting the agent that is more likely to make a just decision concerning what should count as a crime against humanity or a war crime. This chapter shifts the type of considerations bearing on the question ‘who is the appropriate agent to interpret international criminal law’ from considerations concerning the likely ­correctness, justness, or effectiveness of the resulting decision to considerations concerning the legitimacy of the agent to make the decision. Robust internationalism does not regard courts as mere instruments to prevent atrocities; the desirability of internationalism does not hinge only on the question of whether it is effective in preventing international crimes or in minimizing the frequency and severity of their violation. The protection of international norms is not a prerogative of the state with which it may or may not comply. It is a prerogative of the international community as such. This leaves open however the question of whether the institutions that claim to be speaking in the name of humanity or the international community succeed in doing so. This chapter only implies that if they do not succeed in doing so, such a failure on their part undermines their legitimacy.

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chapter 10

Im pu n itie s Mark A. Drumbl1

‘I must not only punish but punish with impunity’. —Montresor, the narrator, in Edgar Allan Poe’s ‘The Cask of Amontillado’ (November, 1846), published in Godey’s Lady’s Book.

I. Introduction Montresor could bear all the injuries that Fortunato, another Italian nobleman, had apparently inflicted upon him. But when Fortunato ‘ventured upon insult’, Montresor cracked and ‘vowed revenge’. Montresor’s smile was no longer one of welcome, but one that curled at the thought of Fortunato’s immolation. Retribution required Montresor to punish, and punish he ultimately did in accordance with his family’s motto: nemo me impune lacessit—no one assails me with impunity.2 Fortunato’s eventual punishment was not by immolation, however, but by immurement. Montresor tricks Fortunato. He seizes upon Fortunato’s putative ‘connoisseurship’ in wine. Montresor promises Amontillado—a rare vintage—as the finale. Fortunato, clad for Carnival as a jester, his bells clinking and clanking, had already been drinking prior to joining Montresor. The drinking continues. Montresor inveigles Fortunato into the vaults that house the wine cellars. These are Montresor’s vaults, his family’s catacombs, the crypts of his ancestors. Fortunato drinks (but does not savour) Medoc and De Grave—he coughs, sputters with rheum, consumes some more. It is damp. The vaults 1  Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University. I thank Colt Justice and Courtney Wolf for research assistance; Meg deGuzman and Barbora Holá for guidance; and Darryl Robinson and Sarah Nouwen for their robust input and extensive comments. 2  Identical to the Latin motto of the Scottish Stuart dynasty, which has been adopted by the Order of the Thistle and three Scottish regiments of the British Army. In Scottish Gaelic: Cha togar m’ fhearg gun dìoladh.

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Impunities   239

Figure 10.1  Fortunato, in chains, immured: Fortunato (l), Montresor (r) Illustration by Harry Clarke, 1919.

twist, the crypts extend deeply, the Amontillado lies as a mirage at their most subterranean ends. The walls at these ends have staples and chains, a padlock even, in which Montresor binds and shackles a dazed Fortunato. Among the bones and humidity, Montresor finds stone and mortar and unsheathes a trowel he had been hiding. This may not be the first time (see Figure 10.1). Montresor builds a wall around Fortunato. The wine naturally wears off. Fortunato becomes lucid and screams. He cries out: this is a joke, Montresor—come, let’s have a laugh about this, later, over the Amontillado at the palazzo. Fortunato’s cries are met with silence. It is too late. Fortunato knows it. All he can say is: ‘For the love of God, Montresor!’ Yes indeed, Montresor retorts, plastering the wall and entombing Fortunato, ‘this is for the love of God’. The tomb, we learn, lies undisturbed by any mortal ‘for the half of a century’. Montresor admits he feels sick at heart, but only fleetingly so, and besides, he blames it on the dampness of the catacombs. Poe blurs the lines between the injured and the injurer, between the victim and the criminal. The reader is left hanging as to who exactly is the villain. Montresor redresses impunity but in a way that generates new impunity. Impunity, then, becomes a fun house of mirrors: it takes impunity to prevent impunity, so preventing impunity creates new injustices. In a classic sense, ‘impunity’ means freedom from punishment for one’s harmful acts. Etymologically, the term springs from impunité in Middle French, that in turn derives

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240   Mark A. Drumbl from the Latin impune (in [not] + poena [punishment, pain]) originally from the ancient Greek poine [penalty]. Poena, the spirit of punishment in Roman mythology, attends to Nemesis, the goddess of retribution. Impunity is a theme that suffuses literature, fables, and art throughout the ages; and in modern times impunity surfaces as among the concerns of the global human rights movement. International criminal courts and tribunals assume, and have been assigned, many lofty goals. Among these is to fight (and even end) impunity for heinous atrocities and to stanch cycles of impunity that lead to collective cultures of violence.3 International criminal courts and tribunals directly contribute to this battle by prosecuting and sentencing perpetrators. They also indirectly contribute thereto by incentivizing national judicial actors to act. The admissibility structure of the International Criminal Court (ICC), for example, promotes national investigations and criminal prosecutions through the principle of complementarity, and thereby taps those national prosecutions as important players in the fight against impunity. Preliminary examinations additionally serve the goal of ‘ending impunity’, as noted by the ICC Office of the Prosecutor, because they too ‘encourag[e] genuine national proceedings’.4 Complementarity pushes the antiimpunity norm, and criminal prosecutions as the best practice to further this norm, into national contexts.5 The ICC Office of the Prosecutor’s Policy Paper on Case Selection affirms: In relation to cases not selected for investigation or prosecution, it should be recalled that the goal of the Statute to combat impunity and prevent the recurrence of violence, as expressed in its preamble, is to be achieved by combining the activities of the Court and national jurisdictions within a complementary system of criminal 3 See for instance in scholarly discussion Mark Kersten, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace (OUP 2016) 20–21 (hereafter Kersten, Justice in Conflict) (‘Ending impunity is the primary aim of international criminal justice and is regularly invoked as a necessary ingredient in the establishment and maintenance of peace’ and ‘[e]nding impunity goes to the heart of the ICC’s mandate’); Max Pensky, ‘Amnesty on Trial: Impunity, Accountability, and the Norms of International Law’ (2008) 1 Ethics & Global Politics 1, 12 (noting that ‘[t]he anti-impunity norm takes center stage as the [ICC’s] core “mission statement” ’) (hereafter Pensky, ‘Amnesty on Trial’); Christine EJ Schwöbel-Patel, ‘The Market and Marketing Culture of International Criminal Law’ in C Schwöbel (ed), Critical Approaches to International Criminal Law (Routledge, 2014) 2, available at SSRN: (‘The branding of ICL is one of a discipline fighting impunity, a beacon of global justice, the heroic few internationalists who dare to fight big power-players’.). 4  ICC Office of the Prosecutor, ‘Policy Paper on Preliminary Examinations’ (November 2013) accessed 18 August 2017, para 93; See also ibid, para 100 (discussing the goal of ‘ending impunity through positive complementarity’); See also William Burke-White, ‘Implementing a Policy of Positive Complementarity in the Rome System of Justice’ (2008) 19 Criminal Law Forum 59, 62 (‘the overall goal of the Rome Statute—ending impunity—may be best achieved through . . . encouragement of national prosecutions’). 5  See e.g., ICC Office of the Prosecutor, ‘Policy Paper on Sexual and Gender-Based Crimes’ (June 2014) accessed 18 August 2017, para 7 (‘In an effort to close the impunity gap, it is therefore crucial that States comply with their primary responsibility to investigate and prosecute serious international crimes effectively, including sexual and gender-based crimes’.).

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Impunities   241 justice. As such, the Office will continue to encourage genuine national proceedings by relevant States with jurisdiction.6

In sum: regardless of the jurisdictional level they occupy, courtrooms, trials, and jailhouses have become centralized as indispensable in the protection of human rights because they fight impunity.7 What is more, as Mark Kersten notes, conventional wisdom now perceives accountability as promoting peace, while impunity is taken as a threat to peace.8 My ambitions for this chapter are modest. Principally, I hope to trigger a conversation about impunity. My starting point is to look at how international criminal courts and tribunals understand and deploy the term. Interestingly, the term ‘impunity’ appears infrequently in the enabling instruments—the actual body of rules and laws—of contemporary international criminal courts and tribunals. The term, however, more commonly populates the discourse of representatives of these institutional actors, as well as the discourse of global civil society and other agents who support their work.9 The term ‘impunity’ is a touchstone in the way these courts and tribunals present themselves to the rest of the world, for example, through their press releases, that are the representational practices that this chapter focuses on.10 This chapter’s findings are preliminary and impressionistic. They are not intended to be causal. Riffing off my crude discourse analysis of the press releases, however, I feel confident enough to make two observations. First, it is unclear whether the representational practices of international criminal courts and tribunals evidence a rigorous understanding of impunity and any ability 6  ICC Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritization’ (September 2016) accessed 18 August 2017, para 7. 7  cf Martti Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck Yearbook of United Nations Law 1, 13 (‘The effort to end the “culture of impunity” emerges from an interpretation of the past—the Cold War in particular—as an unacceptably political approach to international crises’). See also ibid at 2 (‘[b]ringing Milosevic to The Hague has been celebrated as the most significant event in the international efforts to end the culture of impunity’). 8 Kersten, Justice in Conflict (n 3) 21; Karen Engle, ‘Anti-Impunity and the Turn to Criminal Law in Human Rights’ (2015) 100 Cornell L R 1069, 1071 (‘anti-impunity and its alignment with criminal pro­ secu­tions came to be uncontested within human rights so relatively quickly’). Engle ties the predilection for criminal law to neo-liberalism that, in turn, insulates itself from challenge by the criminal law. 9  Fighting impunity is also a frequently repeated adage of global civil society, of the NGO community, and of human rights activists. For important touchstones in the development of the anti-impunity norm, see Louis Joinet, ‘The Administration of Justice and the Human Rights of Detainees: Questions of the Impunity of Perpetrators of Human Rights Violations (Civil and Political)’ (1997) UN Doc E/CN.4/ Sub.2/1997/20/Rev.1; Diane Orentlicher, ‘Promotion and Protection of Human Rights: Impunity’ (2008) UN Doc E/CN/4/2004/88. 10  I focus on these two institutions principally for interests of manageability of the available information (there are 2,961 references to impunity that emerge from a search I conducted of the ICC ­website alone). A more comprehensive and scientifically rigorous extension of this project in a deeper iteration would require a detailed review and coding of all accessible documents of the ICC and the ad hoc tribunals. Such an analysis lies beyond the remit and scope of this chapter.

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242   Mark A. Drumbl to measure it. The frequency of reference to and invocation of the term ‘impunity’ belie the term’s undertheorized nature. These references exude a sense of superficiality, gauziness, and vapidity. References to impunity in the discursive practices of international criminal courts and tribunals therefore recall the deployment of other buzzwords, such as ‘reconciliation’ and ‘peace’, that also seem widely used, poorly understood, and thinly grounded. Second, poena has been instrumentalized in a political, bureaucratic, and ideological sense. International criminal courts and tribunals have largely equated punishment with the kind of punishment that they can deliver, namely, incarceration. Hence, im­pun­ity tends to become associated with an absence of criminal prosecution and, in the case of persons found guilty, resultant jail time. This may seem understandable, to be sure, and perhaps even self-evident, but this move carries with it important architectural, operational, and associational effects. This move means that impunity arises when there is a lack of working courtrooms and jailhouses. The presence of working courtrooms and jailhouses, on the other hand, indicates that progress is being made in the battle against impunity. If courts—rather than individuals such as Montresor—mete out punishment, and if they to do so following a properly (and publicly) conducted criminal trial, then no new impunity would arise on the part of the punisher because the punishment becomes just and legitimate. Hence, the fight against impunity requires trials, judges, courts, and jails. The preferred way to combat impunity is to build more courtrooms and jailhouses, or work the ones that we already have even harder and better. This is not to say that representatives of international criminal courts and tribunals refuse to acknowledge other modalities of accountability and justice. Rather, they envision these other modalities as lower in preference on an ordinal hierarchy and as incapable of appropriately inflicting poena, that is reserved for the courtroom and jailhouse. The fight for human rights is to be waged through the criminal law. Part II herein surveys how the term impunity is deployed in the enabling instruments of international criminal courts and tribunals and also in their press releases. Part III identifies a challenge to the quest to combat impunity through international criminal courts and tribunals, that is, the reality that it is still more accurate to talk about impunities than impunity. Reducing impunity for one side in a conflict may mean overlooking the abuses inflicted by the other side. Although selectivity remains among law’s foibles, the foible of selectivity paradoxically may be necessary in order for an inter­nation­al criminal court or tribunal actually to prosecute anyone. While not hearkening back to Montresor, in such instances punishment may become unjust because of its partiality. Part IV posits that axiomatically associating the fight against impunity with the épanouissement of international criminal courts and tribunals draws attention away from the many other ways in which atrocity perpetrators and human rights abusers could be ‘punished’. One way to engage these possibilities, and break the tautology, is to revisit the basics and reimagine a broader understanding of poena, and hence the fight against impunity, that unmoors punishment from the iconic preference for jailhouses.

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Impunities   243 This part proposes a broader conceptualization of poena that includes recrimination, shame, reparations, harmful consequences, and sanction and discusses a number of examples thereof. Part V concludes with a fable.

II.  Impunity in Text and Discourse How is ‘impunity’ deployed in the enabling instruments, public inflections, and press releases of international criminal courts and tribunals?

A.  Enabling Instruments Intriguingly, the word impunity appears only once in the Rome Statute, whose ­preamble highlights the establishment of the ICC as indicating the determination of states parties to ‘put an end to impunity for the perpetrators’ of international crimes so as to contribute to their prevention.11 In many public pronouncements, however, ICC Chief Prosecutor Fatou Bensouda and her predecessor Luis Moreno-Ocampo routinely build upon this sparseness by underscoring how impunity threatens stability and how the ICC, by eroding impunity, thereby serves to promote peace.12 MorenoOcampo, for example, had forcefully argued that: [The Rome Statute] ensures that the law will guarantee lasting peace, and that im­pun­ity for the worst perpetrators is no longer an option. . . . We are building a global criminal justice system to prevent atrocities and end impunity for the most serious crimes. The Prosecutor’s duty is to apply the law without bowing to political considerations, and I will not adjust my practices to political considerations.13

In the Lubanga trial, moreover, he closed the prosecution’s opening statement by reminding the judges that the ICC’s goal is to ‘end impunity and contribute to the prevention of future crimes. . . . If convicted, Thomas Lubanga’s sentence will send a clear message: The era of impunity is ending’.14

11  See Rome Statute of the International Criminal Court Preamble (1998) UN Doc. A/CONF. 183/9, para 5 (‘Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’). 12  See e.g., Kersten, Justice in Conflict (n 3) 21 (citing Chief Prosecutor Bensouda as declaring to the United Nations Security Council in the Darfur situation that ‘as long as [indictees] enjoy impunity for the crimes they commit, they will continue to represent a threat to international peace and security’). 13  Luis Moreno-Ocampo, ‘The International Criminal Court: Seeking Global Justice’ (2007–2008) 40:1 Case Western Reserve J of Intl L220, 224. 14  The Prosecutor v. Thomas Lubanga Dyilo (Opening Statement) ICC-01/04–01/06 (2012) 30.

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244   Mark A. Drumbl In the Bemba sentencing judgment, delivered in June 2016, an ICC Trial Chamber directly referenced the anti-impunity language in the ICC preamble to support the finding that retribution and deterrence are the primary objectives of punishment.15 Public references to impunity are routine among ICC officials. Anecdotally, as I was drafting this chapter, I checked on the website of the ICC, only to be struck with one lead item being a report on Chief Prosecutor Bensouda’s visit to Ghana in which the headline quoted her as imploring that ‘we must continue to work together to combat impunity’.16 Another lead item was Chief Prosecutor Bensouda’s report to the UN Security Council regarding Darfur in which she emphasized that ‘[t]ackling impunity and pursuing just­ice for atrocity crimes in Darfur is the task that this Council mandated to my Office’.17 The word impunity does not make any appearance in the statutes of the ICTR or ICTY; or in the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Republic of Kampuchea (ECCC); or in the Statute of the Special Tribunal for Lebanon (STL). Security Council Resolution 1966 (2010) establishing the International Residual Mechanism for Criminal Tribunals (MICT), however, contains the following prefatory language: Reaffirming its determination to combat impunity for those responsible for serious violations of international humanitarian law and the necessity that all persons indicted by the ICTY and ICTR are brought to justice.18

The term impunity absents itself from Security Council Resolution 955 that initially established the ICTR in 1994 and Security Council Resolution 827 that did the same for the ICTY in 1993. While the term impunity does not appear in the Statute of the Special Court for Sierra Leone (SCSL), it does arise in the preambular language to the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone.19 No mention is made of impunity in the Special Court Agreement (2002) Ratification Act, the initiative of Sierra Leone’s Parliament to enact the Special Court Agreement domestically. Finally, the term is absent from Security Council Resolution 1757 (2007) that established the Special Tribunal for Lebanon under Chapter VII of the UN Charter. 15  The Prosecutor v. Jean-Pierre Bemba Gombo (Decision on Sentence Pursuant to Article 76 of the Statute) ICC-01/05–01/08 (2016) para 10. 16 ICC, ‘The Prosecutor of International Criminal Court, Fatou Bensouda, visits Ghana’ (Press Release, 26 May 2017) accessed 10 June 2017. 17  ICC, ‘Statement before the United Nations Security Council on the situation in Darfur, pursuant to UNSCR 1593 (2005)’ (Press Release, 8 June 2017) accessed 10 June 2017. 18  United Nations Security Council (22 December 2010) S/RES/1966. 19  ‘WHEREAS the Security Council, in its resolution 1315 (2000) of 14 August 2000, expressed deep concern at the very serious crimes committed within the territory of Sierra Leone against the people of Sierra Leone and United Nations and associated personnel and at the prevailing situation of impunity’.

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Impunities   245

B.  A Sampling of Press Releases and Public Statements As already alluded to in the case of the ICC, ‘impunity’ routinely pops up in the press releases of international criminal courts and tribunals and dots the public statements and policy papers of tribunal officials. Why press releases? On the one hand, assuredly, press releases are simplistic and by necessity perfunctory. They are not drafted for nuance. On the other hand, they constitute a major way in which international criminal courts and tribunals present themselves to the public, perform outreach, and explain their work product to the world. It is for this reason that I determined them to be a worthy primary source to capture—albeit in my case not scientifically—how international criminal courts and tribunals understand impunity, conceptualize punishment, and envision themselves as fighting im­pun­ity for atrocities. I also consider public statements by officials. While these press releases gesture towards a multiplicity of modalities (alternative remedies, traditional justice, economic sanctions) and institutional actors that can help fight impunity,20 as a whole they also reveal the central, and I would argue ­primary, place of courtrooms and jailhouses in the imposition of punishment and, therefore, in the fight against impunity. The duty is to prosecute and, in the case of a guilty verdict, to incarcerate. This duty, to be sure, can be accompanied with a range of other accountability mechanisms, and be complemented by these other mechanisms, but there is no true substitute for prosecution, which has emerged as a first-best remedy.21 This view in turn reflects a normative preference for individuated responsibility and judicially authenticated truths. The courtroom and jailhouse are seen as indispensable. At the ICC, references to impunity arise in standardized language that appears in press releases and ‘ICC at a glance’ or ‘Understanding the ICC’ public outreach documents, and that global civil society actors have recirculated in their own documents that describe the ICC’s work: ‘The ICC is the first permanent, treaty-based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community, namely war crimes, crimes against

20  See e.g., ‘The Council intends to continue forcefully to fight impunity with appropriate means and draws attention to the full range of justice and reconciliation mechanisms to be considered, including national, international and “mixed” criminal courts and tribunals, and as truth and reconciliation commissions,’ Statement of the President of the Security Council, 22 June 2006, cited in ICC, ‘Policy Paper on the Interests of Justice’ (September 2007) accessed 18 August 2016, fn 5. 21  ICC, ‘Policy Paper on the Interests of Justice’ (n 20) para 6(a) (OTP ‘fully endorses the complementary role that can be played by domestic prosecutions, truth seeking, reparations programs, institutional reform and traditional justice mechanisms in the pursuit of broader justice. The Office notes the valuable role such measures may play in dealing with large numbers of offenders and in addressing the impunity gap’ but also noting the presumption in favour of investigation or prosecution).

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246   Mark A. Drumbl humanity and genocide’.22 The tendency is not to discuss, unwrap, or methodologically assess impunity. Invocations of impunity thereby come with a pro forma and perfunctory flavour; aired in conclusory cadence and as aphoristically self-evident.23 Upon receipt of the report from the UN Security Council’s Commission of Inquiry into Darfur, for example, the OTP referenced impunity as follows: To protect life, the international community has joined together to end impunity in Darfur. . . . Now, we have a common task—to end the culture of impunity. As the Prosecutor, my duty in this common task is to investigate the crimes and to respect the interests of the victims. . . . I have an additional duty: to assess national proceedings. The Sudanese authorities report they have begun investigations. This could be very important. I will carefully and independently assess these ­proceedings. I will closely monitor ongoing crimes in Darfur as well as efforts to prevent and stop them. We all have a common task: to protect life in Darfur, ending the culture of impunity.24

Sudan, it was subsequently affirmed, has the legal obligation to implement arrest ­warrants and President al-Bashir was castigated for ‘taking advantage of his position of power to continue with his strategy and to ensure his own impunity and the impunity of those who follow his instructions’.25 The refusal by states (South Africa, Djibouti, Uganda) to arrest al-Bashir, moreover, further permits this impunity to fester.

22 See e.g., ICC, ‘International Criminal Court Opens its Doors to More Than 750 Visitors on Hague  International Day’ (Press Release, 22 September 2014) accessed 18 August 2016; See also ICC, ‘The ICC at a Glance’ (2016) accessed 14 August 2017; and ICC Registry, ‘Understanding the International Criminal Court’ accessed 14 August 2017. 23  See e.g., ICC, ‘Press Conference by the President of the Assembly of States Parties’ (Press Release, 19 May 2010) (‘In general, [the review conference] will be a unique opportunity for States to reflect on the achievements of the Court in the stocktaking of four topics: complementarity, cooperation, impact of the Rome Statute on victims and affected communities, and peace and justice. Additionally, States will be able to reaffirm their commitments to combat impunity for the most serious crimes of concern to inter­ nation­al community’.). 24  See ICC Office of the Prosecutor, ‘Prosecutor receives list prepared by Commission of Inquiry on Darfur’ (5 April 2005) accessed 18 August 2016. 25  See ICC, ‘ICC Prosecutor’s Statement to the United Nations Security Council on the Situation in Darfur UNSCR 1593 (2005)’ (Press Release, 5 June 2012) accessed 18 August 2016; cf ICC, ‘President of the Assembly and ICC Prosecutor Speak at a High-Level Conference in Arusha (Press Release, 1 March 2013) accessed 18 August 2016 (quoting the President of the Assembly of States Parties, Ambassador Tiina Intelmann: ‘When we speak of the fight against impunity, we think first of all of the perpetrators of crimes who are brought to justice. But, at the same time, we must think of the victims of these atrocities’).

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Impunities   247 Chief Prosecutor Bensouda advances judicial institutions as promoting stability and reconciliation in the aftermath of a conflict.26 The ICC, she says, is ‘being called upon, again and again, to fulfill the promise made to victims in Rome, that there should be an end to impunity and that future crimes should be prevented’.27 To commemorate the Day of International Criminal Justice in 2015, Prosecutor Bensouda emphasized: [W]e must not deviate from our essential goal: to fight against impunity for the most heinous crimes, and to give a voice to the victims. To this end, at the Office of the Prosecutor, we continue to uphold our obligations in accordance with the Rome Statute to independently and impartiality [sic] investigate and prosecute those most responsible for atrocity crimes.28

Much like the ICC, the International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the Former Yugoslavia (ICTY) press releases include the word impunity without any further elaboration.29 Adama Dieng, Registrar for the ICTR, released a statement when six convicted criminals, including the former Prime Minister of Rwanda, were sent to prison in Mali: ‘Let the world take notice that impunity increasingly will not go unpunished. The entrance of these six convicts through the prison gates of Bamako has reaffirmed the gradual swing of the pendulum from a culture of impunity to a culture of accountability’.30 This statement aligns with the general sentiment that ending impunity is to be achieved through formal criminal adjudication. A former President of the ICTY, Patrick Robinson, explained that each individual facing the judicial process, arrest, and conviction, ‘remov[ed] yet another brick from the wall of impunity’.31 Former ICTY judge Gabrielle Kirk McDonald, speaking at the Council on Foreign Relations in New York, linked criminal tribunals to human rights enforcement, specifying that ‘these rights have for the most part been ignored. Thus, a cycle of impunity with devastating results has evolved which, I submit, can only be ended by the application of the rule of law, by holding individuals accountable for 26  See ICC, ‘ICC Leaders on Peace and Gender Justice at Human Rights Conference in Turkey’ (Press Release, 23 May 2013) accessed 18 August 2016. 27 ibid. 28  See ICC, ‘To commemorate the Day of International Criminal Justice, the President of the Assembly Convenes a Regional Discussion in Dakar on State Sovereignty and International Criminal Justice’ (Press Release, 22 July 2015) accessed 18 August 2016. 29  A search I conducted of the ICTY website for ‘impunity’ yielded 1,920 hits; the same search on the UNMICT website (legacy website for the ICTR) triggered 100 hits. 30  See ICTR, ‘Former Prime Minister and Five Other Convicts Sent to Prison in Mali’ (Press Release, 11 December 2001) accessed 20 August 2017; This statement is somewhat awkward. It is not impunity that is to be punished, rather, acts of atrocity are to be punished. And when these acts are punished, the perpetrators no longer can be said to ‘benefit’ from impunity. That said, this awkward usage of the term impunity indicates the ‘buzzword’ nature of the term—even when used incorrectly, we all have a sense of what is meant (or intended) in the first place. 31  See ICTY, ‘President Robinson’s Address Before the United Nations General Assembly’ (Press Release, 11 November 2011) accessed 20 August 2017.

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248   Mark A. Drumbl their illegal acts’.32 One important theme at the ICTY, which is closing, is the facilitation of national prosecutions and penal investigations in order to close any residual ‘im­pun­ity gap’. The ICTR has made available a four minute video clip entitled ‘20 Years Challenging Impunity’, narrated by actor Clarke Peters, known for his roles in acclaimed TV series The Wire and Treme, which ‘is a tribute to international criminal justice, and a call for it to become a standard for all, everywhere’.33 One press release (from the ICTR) is il­lu­ min­at­ing in that it concerns the Fifth Colloquium of Prosecutors of ICTR, ICTY, SCSL, ECCC, ICC, and STL: After reiterating their common concern on the fight against impunity in respect of law, respect of human rights and evaluation of the necessary environment for the maintenance of peace and stability, the Prosecutors call upon the states: ■ To ensure that their Legal systems and other regional Legal arrangements to which they are party have the jurisdiction and the capacity to effectively prosecute international crimes or to extradite suspects of such crimes; ■ To provide full cooperation to all the International Criminal Tribunal [sic] and to execute all requests and orders for assistance from the Tribunals including the arrest of all fugitives indicted by them; ■ To seriously consider the adoption of a convention on the Suppression and Punishment of Crimes against Humanity; ■ That have not yet done so, to become party to the Rome Statute of the International Criminal Court (ICC) and cooperate fully with the court in the execution of its mandate.34

This joint statement does not explicitly exclude, or disclaim, modalities such as apologies, amends, reparations, or informal proceedings from the fight against impunity. But it links punishment to criminal prosecutions, and criminal prosecutions to the fight against impunity, and does so in a preferential manner. A search of the website of the Residual Special Court for Sierra Leone and the SCSL for the term ‘impunity’ triggers 800 separate hits (including many newspaper articles collated as press clippings). Some internal documents actively contemplate the intersection between penal proceedings and other modalities of accountability, in this specific case the Sierra Leone Truth and Reconciliation Commission. At the SCSL, combating impunity is seen as driven by criminal proceedings and also as capable of 32  See ICTY ‘The International Criminal Tribunal for the Former Yugoslavia: Making a Difference or Making Excuses?’ (13 May 1999) accessed 20 August 2017. 33  See ICTR, ‘20 Years Challenging Impunity—UN-ICTR Launches Legacy Website and Tribute Video’ (Press Release, 6 November 2014) accessed 18 August 2017. 34 See ICTR, ‘Prosecutors of International Criminal Tribunals Call for Full Cooperation’ (Press Release, 16 November 2009) accessed 20 August 2017.

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Impunities   249 involving other mechanisms.35 This greater nuance may well arise from the reality that the SCSL had to navigate a complex relationship with the Sierra Leone Truth and Reconciliation Commission. The STL’s invocation of impunity typifies the pro forma approach. One example, from a press release about an STL prosecutor’s visit to the Lebanese Ministry of Foreign Affairs, underscored the STL’s ‘firm commitment and the commitment of the Tribunal to deliver on the mandate entrusted to them by the Lebanese people, first and foremost, and by the international community, to ensure accountability for the crimes under its jurisdiction and help Lebanon to put an end to impunity’.36 Judge Ralph Riachi, the STL’s Vice-President, remarks: [T]he [STL] is the first international criminal tribunal in the Middle East to try persons responsible for crimes described by the Security Council as terrorism committed in an Arab country. This significant move had enabled this area of the world to join the club of international criminal law, which aims to promote a policy of no impunity for the most serious crimes.37

The Third and Fourth of the STL’s Annual Reports refer to the STL’s mission as inter alia being to end impunity. The Third Annual Report addresses the balance between rule of law and due process: [T]he role of the Special Tribunal is to contribute to challenging impunity. This responsibility reaches beyond the proper adjudication of the matters squarely before us: by bringing accused persons to justice and adhering to the presumption of innocence, the STL shows that these are essential steps in consigning violence to the past and resolving political battles through lawful means instead of force.38 35  See SCSL, ‘TRC Chairman and Special Court Prosecutor Join Hands to Fight Impunity’ (Press Release, 10 December 2002) accessed 20 August 2017. 36  See STL, ‘Prosecutor Daniel  A.  Bellemare Meets Foreign Affairs Minister Ali Al-Shami’ (Press Release, 5 December 2009) accessed 21 October 2019; See also STL, ‘Statement by Daniel A Bellemare, Prosecutor of the STL, to the People of Lebanon’ (Press Release, 20 February 2012) accessed 21 October 2019 (‘During my tenure, I often felt that the fight against impunity would be a long and difficult journey. Nonetheless, I continued to be passionate about the mission and about Lebanon. The people of Lebanon deserve no less. They deserve a society free of impunity, a society based on a culture of accountability. It is encouraging to see that this legitimate desire for justice and accountability is not gaining greater momentum. Today our fight against impunity is shared even more broadly’). 37  Judge Ralph Riachi, ‘The Special Tribunal for Lebanon and International Criminal Law: Contradictory or Complementary?’ (Lecture, 21 May 2013) para 34 accessed 18 August 2016. 38  See STL, ‘Third Annual Report 2011–2012’ (7 March 2012), release available at https://www.stltsl.org/en/media/press-releases/1438-media-advisory-tribunal-publishes-its-third-annual-report and report on file with the author; For the UN perspective on the STL see STL, ‘Meeting between the Secretary-General of the UN and the Head of the STL Defence Office’ (Press Release, 30 May 2014)

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250   Mark A. Drumbl The STL obviously is sensitive to the fact that its trials may proceed in absentia. Prosecutor Norman Farrell, for example, affirmed in media reports that he regretted having to conduct a trial without the defendants in the Court, but then added: ‘Though it is not complete justice or final justice, in the sense that the accused are not present, it is a form of justice,’ that, moreover, would hopefully ‘contribute to the desire at least to move towards the end of impunity’.39 Among the more intriguing of the STL’s public documents is a wide-ranging published interview with defence counsel François Roux. Commenting on the existence of a permanent defence office at the STL, that Roux heads and that is unusual among the international criminal tribunals, Roux adds: At first sight, it might seem contradictory to have the will to fight impunity whilst defending the alleged perpetrators. However, the prosecutor fights impunity, the judge must judge impartially, and the defense lawyer has to defend the rights of the accused. The judges are not on a crusade against impunity [. . .] I have become a defense lawyer because I believe in the specific role of the defense lawyer in the service of justice.40

Montresor may have been on a crusade, and in charge of that crusade, but this is not the STL’s destiny. A search of the ECCC’s website reveals only sporadic deployment of the term im­pun­ ity. UN Secretary-General Ban Ki-Moon, affirming that since his ‘first day in office, [he] made the fight against impunity a top UN priority,’ remarked that putting the Khmer Rouge leadership on trial, ‘even 30 years after, is itself a powerful message . . . [a] message that impunity will not be tolerated . . . neither by the people of Cambodia and their government, nor by the United Nations and the international community’.41 In remarks made at the start of a pledging conference for the ECCC, Secretary-General Ban Ki-Moon noted that ‘[t]he Extraordinary Chambers in the Courts of Cambodia were established to bring justice to the people of Cambodia, and to prevent impunity for the

accessed 18 August 2016 (‘The Secretary-General highlighted the importance of the work of the Special Tribunal in tackling impunity for the crimes within its jurisdiction’). 39  Somini Sengupta, ‘Mideast Strife Turns Trial on Beirut Assassination Into Another Fault Line’, New York Times (New York, 14 January 2014) A9. 40  STL, ‘Interview: François Roux, Head of Defence Office of the Special Tribunal for Lebanon and Former Lawyer at the Khmer Rouge Tribunal—Peace Palace Library’ (3 May 2013) accessed 18 August 2016. 41  United Nations Assistance to the Khmer Rouge Trials, ‘The UN Secretary-General’s Remarks at Extraordinary Chambers in the Courts of Cambodia’ (27 October 2010) accessed 18 August 2016 (adding also, and referring directly to the staff at the ECCC, that ‘Your work is vital in the world’s fight against impunity’).

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Impunities   251 most heinous of crimes’.42 He further emphasized that ‘no-one is above the law. This is a fundamental principle in the world’s fight against impunity, and it is encouraging indeed to see it in action today in Cambodia’.43 With the ECCC facing budget difficulties, he requested the authorization of subvention funds for the Court to keep it solvent. In his remarks exhorting the donation of these funds, Secretary-General Ban Ki-Moon indicated a ‘financial failure of the Court would be a tragedy for the people of Cambodia, who have waited a long time for justice, and would constitute a serious setback to the international community’s fight against impunity’.44 In a 2014 joint statement by the Cambodian government and the UN High-Level Delegation Regarding the ECCC, cooperation was pledged and a commitment was reaffirmed ‘to ending impunity for the atrocities of the former Khmer Rouge regime’.45 Noting specifically the 12,000 Cambodian citizens who had (at that time) attended court proceedings, another official joint statement (from 2009) recognized the importance of establishing an independent counsellor at the ECCC to ‘progress toward addressing impunity for the crimes of the former Khmer Rouge regime’.46 Ambassador Penny Richards of Australia, following the confirmation of a $2 million (AUD) donation to the ECCC, noted ‘that the ECCC ha[d] made significant strides in ending impunity for grave mass crimes committed by the Khmer Rouge, achieving some measure of justice for their victims, and contributing to national reconciliation’.47 42 See ECCC, ‘Extraordinary Chambers of the Courts in Cambodia, UN Secretary-General’s Remarks to Pledging Conference for the Extraordinary Chambers in the Courts of Cambodia’ (Press Release, 26 May 2010) accessed 18 August 2016. 43 ibid. 44  See ECCC, ‘UN General Assembly Approves US$ 15.5 million funding reserve’ (Press Release, 23 May 2014) accessed 18 August 2016. 45  United Nations Assistance to the Khmer Rouge Trials |(UNAKRT), ‘Joint Statement by the Royal Government of Cambodia and the United Nations High-Level Delegation Regarding the Extraordinary Chambers in the Courts of Cambodia (28 January 2013) accessed 18 August 2016. 46  UN, ‘Joint Statement on Establishment of Independent Counsellor at the Extraordinary Chambers in the Courts of Cambodia’ (Press Release, 12 August 2009) accessed 18 August 2016; See also UNAKRT, ‘Joint Statement on Case 002/01 Judgement’ (Press Release, 7 August 2014) accessed 18 August 2016 (‘The Royal Government of Cambodia and the United nations Secretary-General have repeatedly emphasized that there must be no impunity for the most serious international crimes’); UNAKRT, ‘Statement from Assistant Secretary-General Peter Taksoe-Jensen on Anti-Corruption Measures at ECCC’ (Press Release, 8 April 2009) accessed 18 August 2016 (‘I welcome the significant progress made in the first trial before the ECCC, which is an important step towards addressing impunity for the crimes of the former Khmer Rouge regime. The United Nations continues to be convinced that the Court will meet the principle of fair trial’.). 47  ECCC, ‘Australia Confirms Donation of AUD 2Million’ (Press Release, 3 June 2011) accessed 18 August 2016.

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252   Mark A. Drumbl

C.  Punishment, Peace, and Transition The representational practices of international criminal courts and tribunals reveal two important assumptions: namely, that impunity threatens stability and that reducing impunity promotes peace. The linkages between chipping away at impunity and promoting peace, however, are in actuality considerably more complex and, according to Kersten, ‘remain unclear’.48 Noting how Spain’s transition towards peace from abusive autocracy was attained without any criminal prosecutions (in fact, these were actively dissuaded or disclaimed), Kersten remarks that ‘it is difficult to conclude that impunity itself has undermined peace and stability’.49 Arguments that justice in the form of crim­inal prosecutions may nevertheless imperil peace have largely been eschewed by inter­nation­al lawyers and human rights activists. As Kersten adroitly observes, ‘the peace-justice debate is primarily about how, when and at what cost to end impunity’.50 The fight against impunity as presently constituted also stigmatizes amnesties, including qualified amnesties, as threats to peace and security rather than bargaining chips for peace and security.51 Max Pensky astutely notes how ‘domestic amnesties for inter­ nation­al crimes became the poster child for the most egregious forms of impunity’.52 Linkages between amnesties and impunidad, for example, have animated many reactions to the peace settlement process in Colombia. In Latin America, laws that reference amnesties and pardons, for example, have been dismissively stigmatized as ‘impunity laws’.53 Indeed, according to Pensky, ‘the anti-impunity norm itself is based on a narrowly retributivist conception of criminal justice’.54 The discursive practices of international criminal courts and tribunals tether punishment to criminal prosecutions and incarceration. This means that the fight against impunity is principally to be led by criminal courts and tribunals, operating inter­nation­ al­ly, and also nationally by dint of positive complementarity. In this regard, then, these

48 Kersten, Justice in Conflict (n 3) 21; cf David Rieff, In Praise of Forgetting: Historical Memory and its Ironies (Yale UP, 2016) 66–7, 91–92 (Rieff warns that the deployment of collective historical memory has ‘far too often . . . led to war rather than peace, to rancor and ressentiment . . . rather than reconciliation, and to the determination to exact revenge’) (hereafter Rieff, In Praise of Forgetting); ibid 39 (also arguing overall that historical memory should be seen as a moral option rather than a moral imperative). 49 Kersten, Justice in Conflict (n 3) 22. 50 Kersten, Justice in Conflict (n 3) 22; cf Rieff, In Praise of Forgetting (n 48) 90. 51  Pensky, ‘Amnesty on Trial’ (n 3) 1 (‘An emerging consensus regards domestic amnesties for inter­ nation­al crimes as generally inconsistent with international law. This legal consensus rests on a norm against impunity: the chief role of international criminal law . . . is to end impunity for violators of the worst of criminal acts’.); ICC, ‘Policy Paper on the Interests of Justice’ (n 20) fn 5. 52  Pensky, ‘Amnesty on Trial’ (n 3) 6 (noting also at 6–7: ‘Now saddled with a less-than-descriptive name, Amnesty International became the first influential human rights NGO to articulate an anti-amnesty position favoring domestic and/or international prosecution as the preferred mechanisms for addressing past atrocities in post-conflict states. . .’). 53  Kai Ambos, ‘Impunity and International Criminal Law: A Case Study on Colombia, Peru, Bolivia, Chile and Argentina’ (1997) 18:1–4 Human Rights L J 1, 2, 5. 54  Pensky, ‘Amnesty on Trial’ (n 3) 1.

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Impunities   253 discursive practices as circulated by practitioners evidence a conventional, though narrow, understanding of what punishment actually means.

III.  Impunity and Selectivity While selective justice may be required to fight impunity, selective justice sim­ul­tan­ eous­ly thwarts the purity of the anti-impunity norm. The International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East present one instantiation of selective justice, to wit, that of victor’s justice. While prosecuting German and Japanese acts of aggressive war and crimes against humanity, Allied acts such as the Dresden bombing and the deployment of atomic weaponry were left unaddressed. The very definition of crimes against humanity, which at the time required a nexus with the party who had initiated the aggressive war, oozed with selectivity. Modern international criminal law, to be sure, has unmoored crimes against humanity from the requirement of having committed an anterior act of aggression. Modern inter­ nation­al criminal law, moreover, has done much to investigate all sides to a conflict: this has been central to the work of the ICTY and the SCSL. But victor’s justice still infuses the operation of putatively neutral international courts and tribunals. Battling impunity for one side’s abuses may be contingent upon impunity for the abuses inflicted by the other side or another side however constellated. It is no wonder, then, that Thierry Cruvellier titled his powerful disquisition of the ICTR and the Rwandan genocide Le tribunal des vaincus: the court of losers, in this instance the UN and the international community. The Rwandan Patriotic Front (RPF) government was able to massage, manipulate, and direct the ICTR’s work such that no concrete investigation or prosecution of alleged RPF abuses would ever occur. And none did. The selectivity of justice in Rwanda, moreover, transcends the brass-knuckled politics of who is indicted. Selectivity can also arise expressively, in terms of the social construction of victimhood and history, and germinate within global civil society whose actors, in turn, may turn to political obsequiousness in order continue to garner access, funding, and prominence. Luc Reydams, in a controversially scathing piece of investigative research, unpacks how a small London-based start-up NGO, African Rights, moulded and propagated a narrative of the Rwanda genocide that, although certainly hewing to key facts, also overlooked other salient facts and thereby facilitated impunity for Paul Kagame and the RPF.55 Reydams argues, based on numerous interviews and a painstaking review of the evidentiary record: 55 Luc Reydams, ‘NGO Justice: African Rights as Pseudo-Prosecutor of the Rwandan Genocide’ (2016) 38:3 Human Rights Quarterly 547–88, Reydams argues that an early African Rights publication about the genocide, entitled ‘Death, Despair and Defiance,’ massaged facts to project a vision of the genocide as being well organized and facilitated by the international community’s abandonment of Rwanda. No mention is made, according to Reydams, of the RPF’s categorical rejection of any sort of humanitarian intervention.

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254   Mark A. Drumbl [T]hat African Rights was coopted in the first weeks of the genocide by the [RPF] . . . [and was] instrumental in shaping and spreading an easily consumable one-sided narrative of the Rwandan conflict and that the resulting pensée unique contributed to RPF impunity.56

This pensée unique, moreover, sculpted the historiography of the Rwandan genocide such ‘that it became politically unthinkable to hold the RPF accountable before an inter­nation­al jurisdiction’.57 In this regard, then, the shared officialized memory of the Rwanda genocide may, to invoke historian Jacques Le Goff ’s mordancy, ‘only seek to rescue the past in order to serve the present and the future’.58 So, too, is it with the ICC’s interventions in northern Uganda. These interventions redress some impunities (e.g. those of the Lord’s Resistance Army (LRA)), but allow others to fester (e.g. those of the Government of Uganda). When OTP sought arrest warrants in the situation in Northern Uganda in 2005, the language of combating im­pun­ity was vivid, and in turn electrified many human rights NGOs.59 This was the case despite the fact that Chief Prosecutor Moreno-Ocampo only pursued LRA members, and spoke of the arrest warrants at a press conference jointly with members of the Government of Uganda with whom the LRA was fighting and who were themselves implicated in massive human rights abuses throughout all of Acholiland. Still today, reporting on the one case in that situation to wend its way to the ICC—that of former child soldier Dominic Ongwen—global civil society persists in referencing how the proceedings against Ongwen ‘show progress in fight against impunity’.60 In addition to selective justice, there is also justice omitted. By individuating guilt among a handful, international criminal law may promote impunity for the actions or nonfeasance of the many, of bystanders and side-standers, of corporate entities, arms dealers, and foreign governments—actors whose small steps when aggregated serve as crucial conditions precedent to the metastasis of atrocity. In sum, then, it seems that impunity may need to be generated in order for impunity to be fought. We may not have travelled as far as we would hope from Montresor. When made possible because of victor’s justice or selective prisms, international criminal law may resonate with the eeriness in Poe’s The Cask of Amontillado. Montresor punishes because he feels he must, but also because he can. On a final, and forward-leaning, note: Is there not something profoundly liminal about ending impunity—when are we there? On arrive quand, exactement? How 56  ibid 547, Reydams identifies this factor as blending with the US government’s support of the RPF in explaining RPF impunity. For Reydams’ views regarding the effects of African Rights’ work product upon the ICTR’s prosecutorial strategy, see ibid 579–82, 586. Reydams notes how ICTR Chief Prosecutor Richard Goldstone refused to even ‘contemplate’ to indict RPF commanders, despite evidence of their crimes, ibid 586–7 (citing also the research of Filip Reyntjens). 57  ibid 588 (emphasis in original). 58  Cited in Rieff, In Praise of Forgetting (n 48) 22. 59  See e.g., Kersten, Justice in Conflict (n 3) 64–5. 60  Sarah Kasande, ‘Kwoyelo and Ongwen Trials Show Progress in Fight Against Impunity’, (International Center for Transitional Justice, 25 July 2016) accessed 18 August 2016.

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Impunities   255 much criminal law would it take? Would the anti-impunity norm be satisfied only by punishment for jus cogens violations, or would it also need to include punishment for ordinary common crimes? What would a place without any impunity look like? Would we wish to live amid so much criminal law? Would it be a just place, or a repressive place; liberating or suffocating? These, too, are some of the reflections this chapter hopes to prompt. Perhaps these questions raise a further justification for a broader construction of the meaning of punishment, of poena. Without such an understanding, a place with no impunity—the place in which impunity has been successfully fought tooth and nail—would be a place of perpetual penalization. It would be a place with jails everywhere, many jailers, and so many prisoners.

IV.  Reimaging Punishment Uncoupling our understanding of impunity from criminal law and thinking more broadly about the meaning of punishment opens up a broader vista. I propose a conceptualization of poena that includes recrimination, shame, consequence, and sanction. I believe it possible, and normatively desirable, to reimagine poena, and hence the fight against impunity, in a way that unmoors punishment from the iconic preference for jailhouses. Some of these alternate ways to punish are unsavoury: reprisal killings, which we have known throughout the ages, come to mind as do acts of vengeance and vigi­lant­ism. Forms of punishment other than incarceration might, however, be humanistic and transformative. A more capacious and creative approach might contemplate how appearing before a truth commission or a local reintegrative ceremony could constitute punishment. Or, perhaps, lustration, reparations, and citizenship sanctions can be seen as poena? In an even more innovative sense, informational transparency, public dis­clos­ ure, reclaiming of memory, and perhaps even forgetting might also be constructed as forms of punishment. Because some of these modalities are deeply personal, rooted in the idiosyncrasies of the perpetrator, they become unpredictable. Solzhenitsyn for example insisted that the torturers of the Soviet gulag suffer the most horrible of fates, that is, a downward departure from humanity: torture dehumanizes both the tortured and the torturer. Frederick Douglass maintained that owning slaves gradually soiled the character of the slave owner. Martin Luther King identified the greatest victims of segregation as white folks whose souls were deformed by the hate they harboured. How to speak of this deformation, exile, and taint when it occurs? Does the concept of poena offer a new perspective through which to conceive of these effects? The Act of Killing, a 2012 film by Joshua Oppenheimer, screens perpetrators of massive human rights abuses in Indonesia as they reenact the abuses they had committed during anti-Communist purges in the 1960s.61 The Act of Killing has been described as 61  It is estimated that between 500,000 and 3 million so-called ‘communists’ were murdered by paramilitary forces, who often recruited low-level street thugs, in the service of the Indonesian government

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256   Mark A. Drumbl ‘an outlandish anthropology project’.62 The erstwhile perpetrators coordinate the scenes, the wardrobe, the content, and the script. They re-perpetrate and re-discover their iden­tities. They dramatize and put to film their own acts of violence in the way they wish and want. The perpetrators cum actors are influenced by Hollywood—they deploy drag, dance, cowboy hats, impersonations (even as victims), and masquerade. By giving them the space to make a film about themselves, about how they see themselves as gangsters—‘free men,’ as they say—in the end the film they make about themselves makes them look rather villainous. Anwar Congo, the avuncular and natty main character, appears to come full circle as the film ends, retching uncontrollably on the rooftop where he had garroted so many victims some decades ago. Or perhaps he is just faking, pretending to be contrite for the camera. Or, perhaps, he is staging a Hollywood ending coded with redemption and acknowledgement. The Act of Killing succeeds in imposing some consequences through self-inflicted wounds, the consequence of embarrassment and the consequence of making audiences aware of what happened. One observer posits: The Act of Killing [is] a fiercely original experiment in documentary film-making that exposes the entrails of a brutal regime of impunity. The film’s diffusion throughout Indonesia is shaking the country’s bedrock of violence.63

Perhaps this is too fulsome a description. That said, the beginnings of accountability stir in the case of the Indonesian atrocities, most recently with the declaration by the International People’s Tribunal that crimes against humanity had been perpetrated in 1965 in Indonesia and that the US, UK, and Australia had been complicit therein. Following reunification in the early 1990s, the approach taken in Germany with Stasi (the abusive East German secret police) crimes and surveillance is illustrative of the power of transparency. A decision was taken to permit interested members of the public access to the Stasi files.64 The Stasi had recruited tens of thousands of ordinary citizens in their quest to monitor over one-third of the country’s population of 16 million. Ordinary citizens could suddenly learn about who was spied upon, who did the spying, who refused to spy, who was never spied upon, and whose spying resulted in the transmission of accurate or fanciful information.65 On this latter note, the opening of the files and supported by the west (in the throes of Cold War politics). The regime that coordinated this violence remains in power in Indonesia today. 62  Tanguy Chouard, ‘Anthropology: The Science of Impunity’ 503 Nature 340 (21 November 2013). 63 ibid. 64  Stasi officers tried to destroy their files after the Berlin Wall fell, but ordinary citizens stormed the Stasi offices in Erfurt to protect the documents. 65  In the German drama film The Lives of Others, a Stasi agent enamoured with the people he is spying on makes up information about how they love the state even though they are actually plotting against it. He thereby protects them.

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Impunities   257 resulted in the public’s learning not only of betrayal and obsequiousness, but also of quiet acts of resistance, transgression, and tenderness among those approached to do the spying. Following their opening at the very start of 1992, nearly three million German citizens visited the archives containing their Stasi files.66 While the opening of the files certainly ran the risk of vigilantism, revenge, brusque lustration, and shaming— and did lead to suicide (in the case of parliamentarian Gerhard Riege)67—one observer posits that on a national level these risks proved to be more apparent than real.68 Instead, among the major outputs of the opening of the files were discussion, historical appreciation, assemblage of memory, and a search for a ‘truthful understanding of the past’.69 Relationships were ruptured and persons ostracized, to be sure; also dispelled, however, were many suspicions and doubts. Assessments of moral guilt were facilitated—adroitly and gauchely, publicly and privately—by the decision to open up these archives.70 In 2015, some documents in the files were made generally available to the public on a German government website. The website does not include any files on living individuals. In the aftermath of atrocity many survivors are keen to see their abusers criminally prosecuted. Other survivors, however, are keen on other forms of justice, either col­lat­ eral­ly or in lieu of criminal prosecutions. One of the advantages of a broader construction of poena is that it might channel more in the way of the diversity of how survivors see themselves in the aftermath of the violence and what they actually wish for. This diversity might also better respect the agency of victims when it comes to reclaiming their memories and recollecting their own histories: what they choose to remember and how they elect to remember and, even, whether to remember at all. To deny victims that agency through command and control policies of official remembrance might compel victims to remember a certain way or to force them to remember in the first place and oblige those who do not wish to speak to speak. In addition to crimping the agency of victims, such official policies, which the criminal law actuates, neglects the power of forgetting. Journalist David Rieff evokes the Edict of Nantes, through which Henri IV ended wars of religion in France in 1598. This instrument would be seen as heresy amid today’s epistemic community of international criminal lawyers. The Edict

66 Arne Lichtenberg, ‘Germans Remember 20 Years’ Access to Stasi Archives’ Deutsche Welle (Bonn, 2 January 2012) accessed 18 August 2016. A larger number of applications to view were made, though not all of these were granted. 67  Stephen Kinzer, ‘Germans Anguish Over Police Files’ New York Times (New York, 19 February 1992). 68  Rachel Beattie, ‘The Poisoned Madeleine: Stasi Files as Evidence and History’ (2009) 1:3 Faculty of  Information Quarterly accessed 18 August 2016. 69  ibid 3 of printout. 70  See generally Barbara Miller, The Stasi Files Unveiled: Guilt and Compliance in a Unified Germany (Transaction Publishing 2004).

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258   Mark A. Drumbl of Nantes forbade all Henri IV’s subjects, Catholics and Protestants, to remember.71 The Edict suspended, perhaps even erased memory, through its stipulation that: The memory of all things that took place on one side or the other from March 1585 . . . and in all of the preceding troubles, will remain extinguished, and treated as something that did not take place.72

The Edict suppressed the agency of victims who wanted to remember, name, blame, and claim. In this regard, it is the obverse of compelled participation in processes of recollection and authentication, such as criminal trials. But a crucial point remains: ‘forgetting’ the abuser is not always a testimonial to the lingering strength of the abuser but instead may defrock—perhaps even punish?—the abuser by revealing the abuser’s profound weaknesses.73 If among the purposes of criminal punishment is the rehabilitation of the perpetrator, to provide a space for penance and eventual reintegration, then perhaps a victim’s refusal to contribute to that process constitutes a form of punishment. Perhaps a victim that chooses not to participate in a process of organized reconciliation, and thereby refuses to accept an apology or to bestow forgiveness upon the abuser, is in effect punishing that abuser. What about recollecting glimpses of joy amid horror? Nobel Prize winner Imre Kertész’s Fatelessness is a gripping tale of György—a teenager—and his path into and beyond Auschwitz.74 Throughout, György sees the horrors as a child and, perhaps for this reason, holds on to them in their best light. He sees light when the horrors pause, or are suspended, even if only for a moment. György thereby inverts the suffering and ­limits the power of his abusers by making it clear that they could not reach him, or parts of him, and that they were, all things considered, more insignificant than significant. After liberation, back home in Budapest, György alights from his old house onto the street, under the setting sun, as ‘the fleecy clouds over the indigo hills were already turning purple and the sky, a shade of claret’.75 This ‘peculiar hour’ was György’s ‘favorite hour in the camp’. György concludes the book with the following breathtaking monologue:

71 Rieff, In Praise of Forgetting (n 48) 143. 72  Quoted in Rieff, In Praise of Forgetting (n 48) 143. Rieff challenges Santayana’s admonition that ‘those who forget the past are condemned to repeat it’. 73  Some victims with whom I have worked balk at the prospect of constantly having to revisit and retell the stories of their suffering and to shoehorn these stories into the lingo and tempo of criminal procedure and the rules of evidence. Some victims wish to forget the abuser and the abuses. These victims are not filled with trauma, or fear, or denial. Rather, they plead that the one thing the abuser may not have taken from them is the time that they still have left in this earthly life. And, from the perspective of the survivor, spoiling the time that one has left on the past, and soiling it with yesterday’s pain, simply fritters away the present and the future. Sonderkommando Abraham, a touch of a collaborator and also a resister in the lauded film ‘Son of Saul,’ puts it well as he chides Saul, zealous to secure a proper burial for a murdered boy, for ‘fail[ing] the living for the dead’. 74  Imre Kertész, Fatelessness (Tim Wilkinson tr, Vintage 2004). Kertész, born in 1929, was imprisoned in Buchenwald as a youth. He wrote Fatelessness in 1975. 75  ibid 261.

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Impunities   259 For even there, next to the chimneys, in the intervals between the torments, there was something that resembled happiness. Everyone asks only about the hardships and the “atrocities,” whereas for me perhaps it is that experience which will remain the most memorable. Yes, the next time I am asked, I ought to speak about that, the happiness of the concentration camps. . . . If indeed I am asked. And provided I myself don’t forget.76

György transcends the Nazis—he triumphs by refusing to let them prevail and by ­contesting the straitjacket of his victimhood. He emancipates himself and his mind. His is an act of manumission. In this regard, György shames. He marginalizes. He mocks his abusers into insignificance. What about reparations? The Rome Statute indeed embraces reparative justice. In part, this embrace arises because punishment, although preferential, was not seen by treaty negotiators as totalizing. In other words, it was felt by treaty negotiators that victims wanted more. Reparations, however, were given the label ‘restorative justice’ instead of ‘retributive justice’. Reparations were contrasted with jail time, seen as something quite different than punishment, and shorn from the punitive aspect of the treaty framework. This differentiation is particularly evident when it comes to collective re­par­ations ordered through the Victims’ Trust Fund. I would like to suggest here that, perhaps, the Rome Statute’s conceptual approach to reparations as restorative justice should not be universalized, in other words, that there may also be occasion within national frameworks to conceptualize reparations as poena, in particular when they take the form of fines and financial damages directly ordered against human rights abusers (for example, civil remedies such as those contemplated by the US Alien Tort Statute).

V. Conclusion Hans Christian Andersen’s tale ‘The Emperor’s New Clothes’ (Kejserens nye Klæder in Danish, written in 1837) spins a yarn about two swindling weavers. The weavers approach the Emperor and offer to make him a magnificent costume, vestments of unparalleled beauty, so long as he provides them nothing less than the very finest fabrics. The Emperor, prone to vanity and ostentation, agrees. The weavers however take the fabrics and brazenly pocket them. They pretend to weave the outfit. They run their looms day and night, future-faking all the while. They gaslight, and do so nar­cis­sis­tic­al­ly. At some point, the Emperor wants to learn of the progress. He dispatches officials. The weavers show them the progress, the clothes, the garb, how furiously the looms are working and how carefully they thread. There is of course nothing to see, for nothing has been made, but still the officials praise the beautiful work. To do otherwise would mean that they are 76  ibid 262.

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260   Mark A. Drumbl too dull—after all, the new suit is invisible only to those who are unfit for their positions. To do otherwise means they are no longer the Emperor’s sycophants but, rather, would become bearers of bad news. Calling the weavers out on their bullshit—telling the truth—would mean admitting that the Emperor and his retinue have been hoodwinked, defrauded, misled, and deceived. The swindling weavers seize the moment to ask for more and more fabric to make the clothes even lovelier. They get what they ask for. It is best to pretend. Finally, the Emperor arrives to admire the final product. The outfit is so gorgeous, so resplendent; the weavers gently take it off the loom and, in an act of pantomime, drape it over the Emperor’s shoulders. Stunning! So much so, indeed, that the Emperor organizes a parade to showcase his new garments for all his subjects to see. Wearing his in­vis­ible new clothes, and therefore naked, he waltzes throughout the countryside. Crowds gather. No-one dares to say they see nothing but a naked man and that they are unable to appreciate the garments. Only a fool, after all, would not be able to value the weaving, the finery, the embroidery, the sewing, and all the frippery. The pretense is maintained in the interests of tranquility and out of fear of being identified as too stupid, or too gauche, not to see what is to be seen. Why embarrass, or be embarrassed? Only a child, who is promptly hushed, has the temerity—the cheek—to cry out that the Emperor isn’t actually wearing anything at all. The weavers succeed. They get away with it. They steal, wildly so, and openly. They benefit from impunity: they ride its wave while staring everyone in the eye. It is galling. Indeed, impunity galls. It churns the stomach. If the weavers evoke such sentiments over fabric, then, imagine perpetrators of murder, massacre, and torture! Sure, criminal law helps by stepping into this breach. The swindling weavers could have been charged. And tried. They could have been jailed. That is what an independent prosecutor could (and would) have done. This is the reflexive response, the immediate answer to the questions as to ‘what should have happened, what ought to have been done’. It is a good answer. But should it be the only answer, or the loudest one, the firmest in tone? Impunity is a product not only of how we construct wrongdoing, but also how we envision punishment. This chapter hopes to make a modest case for a more elastic understanding of poena according to which impunity becomes understood as freedom from harmful consequences, recrimination, reparations, shame, or pain. Such an understanding could seed a more diverse set of remedies in the aftermath of atrocity. It could redirect, or even divert, the drift towards incarceration and, thereby as a matter of institutional politics, pluralize and diversify the range of actors and entities engaged in the fight against impunity.

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chapter 11

Cou rti ng Fa ilu r e When Are International Criminal Courts Likely to be Believed by Local Audiences? Marko Milanović

I. Introduction International crimes are committed by individuals, individuals who are morally and legally culpable. But these individuals normally do not make the moral choices that make them culpable in isolation. Mass atrocities are social phenomena, involving many thousands of people, victims, and perpetrators; they cannot be divorced from the social setting in which they occur. As for international criminal tribunals, their primary pur­ pose is to punish those deserving of punishment. But beyond dispensing individualized justice, the question still remains whether such tribunals can also help deeply trauma­ tized and divided societies heal on a more fundamental level. To do that, the factual accounts these tribunals produce—about the guilt of specific individuals for specific crimes, but also about the systemic nature and causes of these crimes—at least at some point need to be accepted by their local audiences. Crimes need to be believed to be remedied. Some courts, like the International Criminal Tribunal for the Former Yugoslavia (ICTY), have failed in this broader task.1 But is every international criminal court or tri­ bunal similarly doomed to fail? This is the principal question that this chapter will address. Even once we understand the root causes of the ICTY’s failure, it is a different question, and one of much broader import, whether the account of the ICTY’s in­ef­fect­ ive­ness is confined to the specific situation of the former Yugoslavia, or whether it is generalizable to a greater or lesser extent to other situations of group conflict and other international courts. 1  See Marko Milanović, ‘The Impact of the ICTY on the Former Yugoslavia: An Anticipatory PostMortem’ (2016) 110(2) American J of Intl L 233.

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262   Marko Milanović I will attempt to answer this generalizability question by, first, distilling the various factors that in my view led to the ICTY’s ineffectiveness, and, second, examining other courts and situations while accounting for the presence of these factors. In other words, this chapter will treat the ICTY’s example as a template for a predictive hypothesis, and then see whether that hypothesis can be falsified by reference to other real-world ex­amples: the Nuremberg and Tokyo International Military Tribunals (IMTs), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the Extraordinary Chambers in the Courts of Cambodia (ECCC). Obviously, it is hard to reliably establish what people in these various societies actually believe with regard to particular crimes, and even harder to disentangle the causalities of their beliefs, i.e., to what extent they were shaped by the decisions of the relevant inter­nation­al courts. But even with plenty of methodological caveats the inquiry is well worth the effort. I will argue that the various case studies do, in fact, confirm the lessons drawn from the ICTY. Most importantly, they show that international crim­ inal courts and tribunals are only trusted by local audiences if their work was not met with significant opposition from dominant local elites.

II.  Factors Predictive of Failure A.  Objective and Subjective Limitations on the Processing of Information About Atrocities In an earlier article, I dealt with the impact of the ICTY within the former Yugoslavia.2 On the basis of numerous public opinion surveys, the article concluded that the ICTY failed to persuade local target audiences that the factual findings in its judgments are true, outright denialism being widespread and governed by ethnic bias. In a follow-up piece,3 I tried to provide a theoretical explanation for the ICTY’s lack of local impact, mainly from the standpoint of social psychology, arguing that the causes of the ICTY’s ineffectiveness4 are complex, turning on an interplay between subjective and objective limitations on individuals’ processing of information about war crimes, limitations that are largely independent of the quality of the tribunal’s own work. The interplay between these limitations was such that even had the ICTY been run perfectly—and it was not— it would not have been able to overcome the many barriers insulating the peoples of the 2 ibid. 3  See Marko Milanović, ‘Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences’ (2016) 47 Georgetown J of Intl Law 1321 (hereafter Milanović, ‘Establishing the Facts’). 4  By ineffectiveness or lack of impact I here refer only to the ICTY’s inability to persuade target audiences of the veracity of its factual findings. There are other possible measures of impact, but these are not the subject of this study. See generally Y Shany, Assessing the Effectiveness of International Courts (OUP 2014).

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Courting Failure: When Are International Criminal Courts   263 Objective limitations

Subjective limitations

• Lack of time and resources

• Confirmation bias and motivated reasoning

• Ease of avoiding belief revision

• Ingroup/outgroup bias

• Political relevance and manipulation

• Heuristic reasoning, System 1 and System 2

• Distance and reliance on mediators

Figure 11.1  Objective and Subjective Limitations on the Processing of Information About Atrocities

former Yugoslavia from the positive effects of its work. Operating in a bias-driven downward spiral,5 the more it challenged established nationalist narratives the more it generated distrust, and hence the less likely it was that it would be believed. As a mech­ an­ism of transitional justice, the Tribunal was simply doomed to fail. How is it possible that 90 per cent of ethnic Serbs do not accept the ICTY’s findings on the Srebrenica genocide, and engage in stronger or lesser forms of denial? It is unlikely that these millions of people are in fact fully aware of the accuracy of the ICTY’s findings, but consciously choose to reject them. Rather, as I have argued, it is the inter­ play of various objective and subjective factors that leads the vast majority of otherwise decent people to internalize standard narratives that are at odds with the ICTY’s work, while maintaining their own sense of objectivity and moral rectitude. Taken together, these factors limit the rational processing and cognition of information about the ICTY or specific crimes.6 The first objective limitation is the distance between most people forming beliefs about a particular event and the event itself, of which they have had no immediate sen­ sory experience. Most of the millions of ethnic Serbs, for example, physically could not and did not witness Srebrenica or other specific crimes first-hand. This remoteness from the event means that any knowledge about it can be obtained only indirectly, through mediators of information: politicians, the media, public intellectuals, the ICTY. Similarly, the vast majority of ordinary people lack the time, resources, or expertise to process information about specific crimes with any kind of rigour. What reasoning they do on these issues will be quick and impulsive, and will be shaped to a great extent by the interpretative filter any relevant information has to through, e.g., the media. Remoteness from the event and the consequent reliance on mediators also enable cognitively easy strategies for avoiding the revision of previously acquired beliefs. For example, all it takes to reject the ICTY’s findings about Srebrenica is to discredit the ICTY as a political court, an institution with an anti-Serb bias. Such an account can be plausibly constructed with little effort. Reliance on mediators also means that ordinary people have to choose whom to trust, and here we come to the final, and key, objective 5  See Stuart Ford, ‘A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms’ (2012) 45 Vanderbilt J of Transnational L 405, 427–30 (hereafter Ford, ‘A Social Psychology Model’). 6  This part of the chapter is largely based on Milanović, ‘Establishing the Facts’ (n 3).

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264   Marko Milanović factor—the role of dominant local political elites. In the former Yugoslavia, these elites still depend on nationalism as a source of their power and authority, and have a vested interest in using all instruments in their power—and these are many—to push their own agenda and distort any information coming out of the ICTY.7 This is particularly true when it comes to control over the media. It is trite to observe that mass atrocities do not tend to happen in liberal, open pluralist societies, but in more or less authoritarian states where there is a strong tendency to see control over media (and hence influence over public opinion) as indispensable for maintaining power. The subjective limitations bound human rationality, especially when they are driven by strong emotional or affective responses. The principal such limitation is con­firm­ ation bias, which ‘connotes the seeking or interpreting of evidence in ways that are par­ tial to existing beliefs, expectations, or a hypothesis in hand’.8 The primacy effect of confirmation bias privileges information acquired early in the cognitive process; once formed, beliefs tend to persist and are resistant to change.9 Confirmation bias ties into motivated reasoning: [The] unconscious tendency of individuals to process information in a manner that suits some end or goal extrinsic to the formation of accurate beliefs . . . . [The goal] directs mental operations—in this case, sensory perceptions; in others, assessments of the weight and credibility of empirical evidence, or performance of mathematical or logical computation—that we expect to function independently of that goal.10

Bias on the basis of group membership has also been well documented in psychological and sociological research.11 The bias is at its most intense when the group classification relates to status or identity and arouses strong emotions.12 Group biases are obviously foundational for any intergroup conflict; atrocities necessitate a level of moral exclusion or dehumanization of the intended victims. Finally, building on the work of Keith Stanovich and Richard West, Daniel Kahneman has elaborated on a dual process theory of cognition, divided into two systems: The operations of System 1 are fast, automatic, effortless, associative, and often ­emotionally charged; they are also governed by habit, and are therefore difficult 7  For a recent example, see Sasa Dragojlo, ‘Milosevic’s Old Allies Celebrate His “Innocence” ’ (Balkan Insight, 16 August 2016) accessed 26 October 2018. 8  Raymond Nickerson, ‘Confirmation Bias: A Ubiquitous Phenomenon in Many Guises’ (1998) 2(2) Rev of General Psychology 175. 9  See ibid 187. 10 Dan Kahan, ‘Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law’ (2011) 125 Harvard L Rev 1, 19 (relying on Ziva Kunda, ‘The Case for Motivated Reasoning’ (1990) 108(3) Psychological Bulletin 480). 11  See e.g., Miles Hewstone, Mark Rubin, and Hazel Willis, ‘Intergroup Bias’ (2002) 53 Annual Rev of Psychology 575. 12  See ibid 579–80.

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Courting Failure: When Are International Criminal Courts   265 to control or modify. The operations of System 2 are slower, serial, effortful, and  deliberately controlled; they are also relatively flexible and potentially rule-governed.13

Heuristics, ‘cognitive short-cuts that provide adequately accurate inferences for most of us most of the time’,14 directly tie into System 1, ‘fast’ type of thinking, and can lead to biased outcomes, especially when the cognitive alternatives are effortful.15 In the various communities of the former Yugoslavia, the interplay of these object­ ive and subjective factors was such that the ICTY’s impact was rendered minimal. By the time the ICTY was created, the wars in Bosnia and Croatia were in full swing, with some of the worst crimes already having been committed. Whole belief systems were already in place. The main drivers behind these nationalist narratives were the media, especially state-owned television stations, that operated under strong polit­ ical control and generally marginalized dissenting voices.16 And it was through the media and other me­di­ators, such as local political and intellectual elites, that the populations of the Balkan states already received biased and heavily interpreted information about specific events, be it Srebrenica or the siege of Sarajevo or what­ ever.17 All this came long before the ICTY could say anything on the matter, let alone do so in a final judgment. Inevitably, therefore, the ICTY’s work was assessed in the light of pre-existing and often very polarized attitudes, which had a privileged, pri­ macy effect in the minds of the audience. Similarly, initial impressions about the ICTY would likely have been formed using fast, emotionally charged System 1 types of reasoning, and these impressions would then themselves be protected from change by the effects of confirmation bias. In essence, each ethnic group in the former Yugoslavia constructed its own reality, which its members feel as much as they believe. Most people generally lack the time and the resources to meaningfully, carefully scrutinize information that they receive from normally already biased sources. They therefore resort to quick, heuristic reasoning, jumping to conclusions and forming attitudes about particular events in a way that min­ imizes their own cognitive effort while maximizing the effect of biases already at work.18 They largely do so unconsciously, through identity-protective motivated reasoning that leads them to the denialist outcome while maintaining an internal illusion of objectivity and a sense of self-worth. And they thus easily fall prey to political manipulators who

13  Daniel Kahneman, ‘Maps of Bounded Rationality: Psychology for Behavioral Economics’ (2003) 93 American Economic Rev 1449, 1451. 14  Michael Hogg and Graham Vaughan, Social Psychology (6th edn, Pearson 2011) 71. 15  See generally Daniel Kahneman, Thinking, Fast and Slow (Penguin 2011) 21ff. 16  See e.g., Judith Armatta, ‘Milosevic’s Propaganda War’ (Global Policy Forum, 27 February 2003) accessed 26 October 2018; Mark Thompson, Forging