Welcome everybody to today's panel discussion. The ICC at ten, organised by the Oxford Institute for Ethics, Law and Armed Conflict.
Not quite ten years ago, on July 1st, 2002, the statute of the International Criminal Court entered into force with the 60th ratification.
That was about four years after its initial adoption and hence quite a little bit earlier than most predicted.
This date marks the culmination much more than the beginning of the rise to prominence of international criminal law and its
project to hold to account individuals rather than states for their transgressions directly in virtue of international law.
The ad hoc tribunals for Rwanda and the former Yugoslavia of the early 1990s had revived this project,
which really started in earnest with the Criminal Tribunals for Nuremberg and the Far East after the Second World War.
The ICC is opening for business, if you will, about ten years ago.
Nevertheless, is a milestone a milestone?
Not least because it bore the potential to cure international criminal law of this taint of alleged retroactivity and victor's justice.
That is not the explicit goal that the ICC c set for itself.
If we look in the preamble of the statute, the goal that the ICC advances for itself is to end impunity, which is obviously quite ambitious.
And you could argue that even in the context of the robust rule of law,
of a domestic jurisdiction, that would never be quite achievable to end impunity.
So even if that is not what we expected to have done after ten years, it is now time to take stock of the successes and failures of the courts.
The International Criminal Court. The three speakers who will do so today are the co-directors of Elac,
and they represent the major fields of study that work together in this interdisciplinary
research institute of briefly introduced them in the order in which they will speak and
maybe at the end of it done a privileged philosophy here when I realised that nevertheless
D'avoir Kanda is the Yemeni fellow of public international law at some piece of college.
He is the author of innumerable articles on International Criminal Law and the
co-author of the 2009 Oxford Companion to International Criminal Law and Justice.
He is a consultant to the African Union and has assisted counsel on several cases before international courts.
David Roden is a senior fellow at the Carnegie Council for Ethics and International Affairs in New York and a senior research fellow here at Oxford.
He's a leading authority on the ethics and in law and the author of the seminal work War and Self-defence from 2000 to his,
also a World Economic Forum young global leader.
Jennifer Welsh in Absentia is professor in international relations.
She's an expert and frequent commentator on the Responsibility to Protect and the ethics of post-conflict reconstruction.
She co-edited the 2008 or UAP volume entitled the United Nations Security Council and War and the Evolution of Thought and Practice since 1945.
They will each speak for about 15 minutes and then we will open for Q&A.
Thanks very much, Nina. First of all, let me apologise on behalf of Jennifer.
She's teaching across town and she's going to race from beside business school to here.
And she she hopes to be here any minute now.
So if you see her, somebody opens the door and rushes in.
That will be that will be her. What I want to do in the time that I have available is to focus on two problems that have
arisen in the first ten years of the operation of the International Criminal Court.
And then go on to discuss what I would suggest has been the main contribution of the court since its establishment.
And if I have some time,
the fourth thing that I will talk about or that I will try to do is to look into the future and to talk about one of the issues that I suspect
will come to dominate the court or at least will come to play a big part in the way in which the court operates over the next ten years,
as it has already mentioned.
The ICC statute came into force ten years ago, and at the time it was actually a matter of surprise that the court had been established so quickly.
Now, in one sense, the Court the establishment of the court was very rapid, and in another sense it took forever.
The same thing, which it took forever, is that there had been the prospect of the establishment of this court since the
end of the Second World War and a body which all international lawyers knew about,
but which perhaps is little known to the rest of the world.
The International Law Commission had been working on a draft statute for the International Criminal Court.
Since the late 1940s. So in that sense, it actually took a very long time.
But when it was decided to convene a conference in Rome in 1998,
I think very few people were hopeful that agreement would actually be reached
on a statute within the time that was allotted to that conference in Rome.
And even after agreement was reached in Rome in 1998,
I suspect that many people thought that it would take an incredibly long time for this statute to come into force.
After all,
it required 60 states to ratify this statute and four other international treaties that were adopted around the same time as the Rome Statute,
which seemed to be far less controversial than the Rome Statute.
It had taken decades for those statutes to come into into force.
So if you think about things that appeared to be less controversial,
like the UN Convention on the Law of the Sea or even the International Covenant on Civil and Political Rights,
these had taken at least a decade to come into force.
It was remarkable then that the Rome Statute achieved the necessary 60 ratifications in the space of four years.
And so in 2002, the statute came into force and the court was established.
Just to remind you, and I'm sure you know this.
The court was established to prosecute genocide, war crimes, crimes against humanity and the crime of aggression.
If I have time, I'll return to aggression, because as I'm sure you know, there's no definition of the crime of aggression.
There was no agreement on the definition of the crime of aggression in Rome.
And it was decided to put aside for the moment the question of the definition of that
crime and the circumstances under which the court could prosecute for for aggression.
And if I have time, I will I will return to to that.
Why a permanent International Criminal Court?
Well, it was thought that having a permanent international criminal court would mean that the international community would not need to
continue to establish ad hoc tribunals dealing with particular episodes of international crimes in various parts of the world.
And the idea behind the establishment of the ICC was that a permanent court would provide a
more realistic prospect that these international crimes would actually be be prosecuted.
There was also some thought that having a permanent ICC would reduce the costs of prosecuting international crimes.
One of the key features of the ICC, and this is something that I'm going to spend a bit of time talking about.
One of the key features of the ICC is that unlike other international criminal tribunals,
it is based on this principle called the principle of complementarity.
And that word complementarity was introduced into the English language by the statute of the ICC.
James Crawford, who is the Professor of public in the Hill,
professor of Public International Law at Cambridge and who was one of the principal draughtsmen of the ICC statute,
says that one of his greatest contributions is this word complementarity.
He's actually introduced a word in this language. Not many people, and I've done this for those of us who work in this area.
It's incredibly frustrating because Microsoft Word does not recognise this word.
And every time we type this word, there is that squiggly line underneath.
Right. But this is a foundational principle of of the ICC.
And what it means is that the jurisdiction of the ICC is subsidiary to national jurisdiction.
In other words, the ICC can only exercise jurisdiction in cases where national courts are not exercising jurisdiction with respect to to that crime.
Now. It's nearly ten years since the court began operation and we have just had the first completion of a trial by the court.
It's taken nearly ten years for us to get to to this point.
So even though the Rome Statute came into force very quickly, the court itself has not operated very quickly.
And when one compares this with any other international tribunal, the pace has been unbelievably slow.
Even the ad hoc tribunals, the International Criminal Tribunal for the former Yugoslavia,
not for Rwanda, which have also operated slowly, even they have operated much quicker than this.
Now there are some explanations for the slow pace of the ICC.
For example, unlike Nuremberg and unlike Tokyo, there wasn't a set of defendants waiting to be tried.
And unlike the ICC wide, unlike the ICC, ah, it was it was not immediately obvious where the first cases would come from.
Where in the world those cases would come from. But even then, the pace has still been incredibly slow.
The first situation was referred to the court in 2004, and the court has had accused in custody for, I think, over six years now.
So to arrive at the completion of the first trial after ten years has been incredibly slow.
Now, the two problems that I want to talk about.
It was originally thought that most of the cases brought to the court would be as a result of state referrals.
You will recall that there are three ways in which the jurisdiction of the court can be triggered.
First of all, a matter can be referred to the court by state party.
Secondly, the prosecutor can exercise jurisdiction on his own motion.
And thirdly, the UN Security Council can refer the matter to the ICC.
It was originally thought that in most cases the court would probably acquire a jurisdiction as a result of state referrals.
And three out of the seven case situations sorry that have been referred to the ICC have been referred to the ICC by states.
The two situations they've been referred to the ICC by the UN Security Council and in the
further to those situations have been triggered by the prosecutor acting on his own motion.
However, what has happened with respect to state referrals has been very different from what was originally contemplated.
So instead of one state referring a situation arising in another state to the ICC,
what has happened is that states have referred to the court situations which arose within their own country,
in other words, situations within that state where it appears that international crimes have been committed and this is what is called self referrals.
Now that process has had some positive aspects, but it has also posed some challenges not only to how the court operates,
but also challenges to how we conceive of the court and what the court is meant to do.
Now self referrals have proved to be very positive for the court in the sense that first of all,
this was the mechanism that supplied the first three situations to the court.
So these were the situations in the Democratic Republic of Congo, in Uganda, and in the Central African Republic.
So it helped the court to get going.
And the fact that those three situations arose out of self-referral has meant that the states in
whose territories the crimes were committed has been committed also to prosecutions by the court.
So there has been state by state cooperation and the court has been able to carry out investigations with relative ease within those states.
So that has been the positive aspect of self-referral. However, the challenges have also been been obvious.
First of all, when states have referred crimes to the ICC,
they have not intended that the ICC will prosecute crimes that were committed by government officials.
Usually when states refer these crimes to the ICC, what they're really saying is,
can you please come in and help us to prosecute these nasty rebel groups that are operating in our territory?
The Court has stated that such referrals cannot be limited only to the acts of opposition forces,
but must be taken as a referral of the situation as a whole.
But in practice, the ICC in all those cases has only prosecuted non-state actors engaged in in alleged criminality within those regions.
So in theory, the acts of all sides are open to investigation and prosecution.
But in practice, the court has only focus on the non-state party.
And you can imagine that the positive aspect of self-referral, which I referred to,
the fact that the court has been able to investigate with relative ease,
might well change the day that the prosecutor decides to indict somebody from the government side.
Now, self-referral poses not just those practical challenges to the court, but it also challenges our conception of what the ICC is for.
So first of all, Self-referral has challenged the idea of complementarity, which I referred to a moment ago,
the idea that the court is there as a court of last resort that is there,
that the Court is there to operate in situations where national systems are not operating.
So complementarity suggests that the courts is just there to fill the gaps or
in domestic legal systems gaps that would otherwise give rise to impunity.
However, self-referral means that instead of the court operating as a quarter of last resort,
the court in effect, operates as a court of first resort.
So rather than these states saying we will prosecute these crimes, they call on the ICC and they say, you come and do it.
It means that instead of states bearing the primary responsibility for the prosecution of international crimes.
Kids can simply hand over these cases to the ICC.
And this, of course, could lead to an overburdening of of the court, something that complementarity is supposed to prevent.
Now, my own view is that whilst self-referral while self referrals does have these challenges,
those challenges only arise if one has a particular view of the courts.
The view that I expressed earlier.
In other words, if one sees complementarity as meaning that the court is only a last resort, then one will have a problem with self referrals.
However, there is another way of viewing the principle of complementarity.
In other words, viewing it not as a as the court operating as a quarter of last resort,
but viewing it as a principle of deference in cases of actual conflict of jurisdiction.
In other words, complementarity only arises in cases where both the ICC and national courts are actually prosecuting.
And in the case of such a conflict, then complementarity says that the court must defer to the national system.
Now the other related challenge that has been caused by self referrals is the point that I made earlier,
the fact that it encourages the court to act either only or primarily against non-state actors, at least in the case of self referrals.
Now it's quite clear that the court has jurisdiction both over state actors and non-state actors.
But some have argued that self-referral is problematic because it's in the case of state actors in particular,
that we need international criminal justice, that in the case of non-state actors,
we can leave that to states to sort out that the real challenge for international criminal justice is dealing with, if you like,
state criminality, circumstances where the the apparatus of the state is is used and that self-referral challenges that.
And so in this sense, what we are seeing is really a sort of perversion of what ought to be within international criminal justice,
focussed essentially on non-state actors.
And I think there is a point there.
However, it could be argued that the purpose of international action for in this area is really to prevent impunity.
It's not so much to focus on a particular type of actor, but to prevent impunity.
In other words, a situation where actors would otherwise go unpunished,
and that to the extent that self referrals help us to do that, it is within the purpose of the ICC.
Now let me turn to the second problem now. I have just one minute left, so I try not to change my aims, but I will.
The second problem that I really wanted to talk about,
and maybe we can talk about it in question answer time is the relationship between the International Criminal Court and African states.
This is something that has proven to be a big challenge over the last four years.
I think the story of the relationship between African states and the ICC can be traced in various phases.
First of all, there was hope and enthusiasm. Lots of African states joined the statute of the ICC and all of that seemed to change when
the UN Security Council referred the situation in Darfur to the ICC and most importantly,
changed after the prosecutor sought the indictment of Sudanese President Omar al-Bashir.
And I will just sketch out very quickly what the tensions have been.
Essentially since the prosecutor sought the indictment of Bashir.
We have seen repeated calls by the African Union for non-cooperation by African states with the ICC twice a year.
Now, actually, it's now a routine, much like the General Assembly passes a bunch of resolutions against Israel.
The African Union now twice yearly passes, a bunch of resolutions against the ICC.
My own view, to summarise, and I can elaborate on this later on, is that actually the position is not as bad as it appears to be.
First of all, and I'll say this on to the finish there.
First of all, African states continue to ratify the statute of the ICC.
I think they've been three ratifications from African states in the last year and a half or thereabouts.
Secondly, African states continue to support ICC prosecution in most of the ICC cases.
The tension has arisen actually principally in those cases that were referred to the ICC by the Security Council,
principally a little bit in relation to Kenya, but principally in relation to Sudan and Libya and even in relation to those situations.
The African Union has dropped its objection to prosecutions,
except in the case of the Darfur situation and except in the case of the prosecution of Bashir.
And finally, for a number of African states continue to support ICC prosecution and the the mood
of the African Union and the resolutions that have been adopted by the African Union.
The mood and the tone of them have changed over the last couple of years.
Unfortunately, I need to stop there, but I can return to some of these issues later on thanks to our.
But I suggest we move directly on to David Rohde in protection.
Well, when we look at the ICC after ten years and ten years of achievements, but also ten years of challenges.
Should we view the glass as being half empty or half full?
The optimists, as we know, will always say the glass is half empty, is half full, and pessimists will always say that the glass is half empty.
Management consultants NASA and both Jennifer and I were practitioners of that,
and a former time management consultant will say, Your count is just twice as big as it needs to be to downsize.
As scientists will say, there's only one correct answer, and that is that the glass is entirely full of half of water and half with air.
But when you think about the 1973 situation, sticky situations like we find the ICC in its current state of development,
it seems to make a very considerable difference whether the level of the water is going up or down,
in other words, whether there is movement and what the direction of that travel is.
So what I thought I would spend a little bit of time thinking about is how that question
of the dynamics or the transitional aspect of what the ICC is trying to establish here,
how that plays into some of the characteristic problems that we see the ICC as having experienced within the last ten years,
particularly with respect to this very notorious trade off between justice and peace.
And I started thinking about this, I guess, when I recalled a very remarkable meeting that I went to in 2006,
a sitting organised by a person I know to many of you in the room,
Larry May, who at that time was at Washington University and the conference that he had
organised was to commemorate the 60th anniversary of the Nuremberg trials.
And every luminary from the world of international justice was there at that meeting.
Whitney Harris and Henry King, who at that time were the last two surviving members of the original US prosecuting team at Nuremberg.
And both of them have now sadly passed away. But I remember Whitney Harris's presentation very, very vividly.
It was an absolutely electrifying presentation.
His thesis was that there had been three great waves in the development of international criminal justice.
The first was the one that they themselves had initiated with no other trial take.
Your father had really established many of the principles that would become operative in international criminal justice going forward.
And the second way he identified was the one that we saw with the establishment of the International Criminal Tribunal,
the Rome Statute, leading up, obviously, to the establishment of the ICC.
But beyond that, he identified what he took to be a third wave that he took to be, as it were, generated and carrying forward from that project,
one that he saw as being available to the participation of essentially the new generation of scholars,
lawyers, jurists and and politicians to whom he was implicitly saying the mandate would now be passed
2 to 2 to carry on this this great project of developing international criminal justice.
Now, you know, to hear that from the man who had, you know, indicted, gathering and cross-examined Hess was very, very powerful and exciting thing.
But but, you know, what struck me as being really right and important about that was that we we
view all of these questions in the context of the fact that this is a project,
a project that we hope is a work as a project, as a development of progression of the water going up rather than the opposite.
But it is definitely occurring within a dynamic context, one in which we hope that the the powers and authorities of the institutions,
as we find them today, will develop over time into something that is potentially more concrete, more robust and stronger as time goes forward.
The thing I also took from that presentation was that this is a very, very long game indeed,
a game whose time is measured in generations, rather, rather than in decades.
But I guess that that question is the one that I want to interrogate a little bit.
How how do we think about the kinds of trade-offs that we're forced to make
when thinking about some of the decisions that the ICC has been involved in,
in the context of the fact that it is an institution that is in in progress, in development, as it were.
Well, I'm a philosopher. And so one of the natural things, I guess, is to look back at the philosophical tradition,
to see the can and to see what assistance can be found in answering those kinds of questions.
And I suppose the distressing conclusion I reached, knowing that this was this was to realise that there isn't a lot.
So, so one of the first things that you might look to is to say, well, what,
what does the social contract tradition have to say about these kinds of questions?
Because the social contract tradition is embodied by its great classical thinkers in the tradition, which is Hobbs Law,
for books that are explicitly addressing the question of how we think about the normativity inherent and the transition from,
as it were, a state of nature out of state and ruled by government of law and effectively.
Institutions, too, one which is ruled by those institutions.
And as we know, the basic form of the argument is one that says that the costs,
the moral and prudential costs of remaining within the state of nature is the essence of the argument, are so high that there is a very,
very powerful, compelling reason to collectively sacrifice some of our sovereignty in order to set up sovereign
institutions that are able to effectively administer justice in an authoritative way.
Well, that's you know, that sounds like a helpful and helpful conclusion to reach.
But the problematic, of course, is that this entire argument is, as it were, constructed post hoc,
and this argument is deployed as a legitimate in total is deployed from within a society that already has this institution.
So we look back and we imagine ourself to be in the position of the state of nature.
And we say, well, if we were in a state of nature like that,
we would have reason to transform ourself into the position that we are at the moment when governed by authoritative institutions of rule of law.
But the problem is that that's that's not the dynamic that we face with something like the development of the ICC.
What we see with the development, the ICC, I mean,
and this is the I guess the the optimistic interpretation is that if anything, we are we are in that process itself,
a transformation from something akin to a state of nature to something that,
you know, we hope may maybe something more like a situation of the rule of law.
And the contract document tells us very little about how that transition is to be made.
It assumes that we've already made that transition,
and we know that that transition must be possible because we find ourselves in a situation of sovereign authority.
But it doesn't tell us very much about how we have to go about making the concrete trade-offs as we make that transition itself.
So one kind of conclusion you might draw from this is that, well, you know, the contract turning conclusion,
which says there's a very powerful reason to establish authoritative institutions and mechanisms of rule of law is something like an aspiration.
It's a normal of aspiration, but it's not entirely determinative of what you have to do in particular,
and in particular how a cause like trading off between between justice and peace.
Well, my problem with the the aspiration to offer is it doesn't seem to capture the, as it were, the urgency of the normativity, the situation.
I mean, aspirations to me are like, you know, one day I'll do the anger trail and get a macro picture.
You know, I'm never going to do it,
but it makes me feel better about myself to think of myself as the kind of person who would do something like that.
So aspirations is, in a sense, a much, much too weak interpretation for what's what's going on there.
And it surely needs to be something with more bite to it than that.
The other way that we have of of dealing with these these kinds of issues and trade-offs is through an explicitly consequentialist framework.
So the consequences would do, as you said,
where we we need to look at the benefits that can be achieved long term by building up the the institutional and and rule
bound elements of the court and compare that with the costs that would have to be suffered for achieving that right now.
So take one example that David mentioned, the al-Bashir indictment.
So one of the one of the consequences for that was around the share of the indictment with the by the ICC was that the decision
was taken to close the country to a number of NGOs who were at that time operating within the country and offer it up,
providing life, giving support. So you might say, well, look,
what we need to do is look at the impact that that has on the lives of individuals within the country
and compare that to the long term benefits that might be expected through the decision to stick to,
as it were, purely principled law based reasons rather than taking into account these broader pragmatic political, humanitarian reasons.
Now, I think that that's really a pretty hopeless route.
I think that for for a number of reasons.
I think one is that it's almost impossible to make those long term judgements as to what the consequences of a decision like that will be.
What what will the beneficial consequences of, as it were, taking the decision to enhance the principled institutional mechanisms of the court?
BE Well, we don't know. How can we know that?
And the extent to which there will be beneficial consequences will presumably depend in part on our ability
to precisely make those decisions on the basis of legal principle rather than these broader political,
pragmatic questions. So that route, I think, is really is really a pretty, pretty hopeless one.
There has to be, I think, a rule for some kind of principle which is deeper than the feeling.
Consequentialist, although how exactly that will fit in.
I have to say that I don't have a clear, clear understanding of one kind of just fair iteration of that.
There's an interesting article published by Michael Streit just this month in Ethics International Affairs,
who argue that in situations like like the the the Sudan case that I've just mentioned,
what the court should do is, in fact, make a decision on a pragmatic basis,
but it should pretend to have done so on the basis of legal principle is we're trying to get the best of both worlds.
Now, the consequence of this argument itself is problematic.
I think this one is is doubly problematic. Not only do we have all of the horrible, intractable epistemic issues,
but we also have the problem of what Bernard Williams famously called government house utilitarianism.
So, you know, he imagined a case where, you know, the wise philosopher came to say,
we hope would make judgements from a perspective of perfect utilitarianism, but they would pretend to do so on on quite, quite different principles.
They would pretend to do so on the basis of principles that were not utilitarian.
And the problem, of course, is that it's hard to I mean, it's hard to imagine a government, but even more so in court,
generating the kind of legitimacy and authority on the basis of action that had this absolutely intentional double standard going going on within it.
So what one answers, what resources are there?
I mean, the distressing conclusion, I guess, is that I can see very little in the way of really clear determinative guidance,
at least, you know, looking within within the traditional on issues precisely like this.
But one one thing that I think is something that needs a lot more thought and and research and attention paid to it.
But one that kind of interesting is that where that potential analogy was to think about the way that.
Political thinkers, philosophers, but also potentially institutions such as a court can potentially play a role in this, as it were.
This process of evolution, this process of development that I talked about by simply as it were,
articulating and describing a vision of a potential way of being competent to look at it.
So let me give you an example.
To try to help the project similarly define an animal conflict has been this perhaps perpetual case in which you described the model of a
federation of free states who would voluntarily submit themselves to a structure of of shared law in order to ensure peace amongst them.
For almost 150 years, there was no discernible political movement towards that objective at all.
And suddenly, after the Second World War, in the most unlikely context imaginable,
six European states formed together into the EEC originally around the, you know,
as you remember around the topics, not of another peace or of, you know, not,
not of shining vision, of constant perpetual pace, but around coal and steel.
And yet that created the possibility for the institution that, as we all know,
became the European Union that looks astonishingly like the Federation of Free Sovereign States that current describes and perpetual peace.
I find that a very, very interesting and suggestive example,
because what it suggests is that the ways in which normative development will occur will sometimes be obscure and will sometimes come from very,
very odd and unexpected circumstances, and that potentially one of the roles that theory can play,
but also potentially an institution such as a criminal court, even if it doesn't have the full trappings of, you know,
a legally mandated enforcement power and so forth, by articulating this normative vision can create the potential for this forward momentum.
What wouldn't be, Harris, I think very, very eloquently described as as the third wave.
Thank you, David. I think the floor goes to Jennifer Welsh. Great.
Thanks. Apologies for being late for my own panel. Kind of like being late for your own way, but it's not quite.
I won't take time to tell you where I was because I won't take up a little more time.
I want to focus as I'm you meant to be the sort of politics leg of this discussion on
the role of the courts in international politics and the potential role that it plays.
And I'm going to I'm going to identify three, but talk mainly about one.
The first is that I think the court is part of a broader phenomenon that we actually study very little in international relations.
And that is the phenomenon of criminalisation, that we we discuss normative developments, we discuss how things become prohibited, become taboos.
But the actual process of criminalisation, what it means to have something, be a crime in international politics has not been widely studied.
And I'm happy to say that one of my graduate students who's in the audience is studying precisely this phenomenon.
But it strikes me that the court is the heart of that, but it is not the only element in that.
And I think that's something we need to remember. And that process is, of course, a social process.
And so it raises the question of of what, if anything, can the processes of criminalisation in other contexts prove,
you know, predominantly in domestic context, tell us or teach us about how it might evolve internationally?
And what is it about international society that makes the process of criminalisation distinct and different?
But it strikes me and it will sound very simplistic,
but I think it is hugely important for its implications to say that something is a crime is to say that it is not merely wrongdoing,
but that it is something that stigmatise behaviour and creates an imperative to act.
And we have not made this judgement in international society about very many things.
Very few things have been criminalised as opposed to just being viewed as prohibited.
And so I think the court forms part of that along with actually the development of
the responsibility to protect principle which has at its heart before same crimes,
although the crime of aggression now added to it, which is not part of articulated and very similar to the court.
But as with the court, I think the principle of the responsibility to protect,
which interestingly is also ten years old, faces this same set of questions about what?
Now we talk a lot about large scale human rights violations, but about crimes which are not mere wrongdoing.
So I think the ICC is part of that big and I would submit a understudied topic.
He and I are not necessarily in international law but in I.R.
Secondly, of course, the court is an institution,
and therefore I think it lends itself to the same kinds of questions we ask in
international relations about institutions and particularly their legitimacy.
And within the international relations, of course, the legitimacy, the legitimacy of institutions is analysed not solely through procedural elements.
You know, the way it is designed is fair, is it transparent and not solely through purpose?
You know, does it have a purpose which resonates with the goals and values of those who are subject to it, but also effectiveness?
You know, for better or for worse, for for students of politics and for the real world of politics,
institutions are judged by their perceived effectiveness,
which is why I think Dafoe's points about the relationship to African states is important because whether
or not there is a real crisis of legitimacy with the African constituency is only part of the problem.
The problem is broader than that to how that, you know,
alleged injustice is viewed by other parts of international society and used by other parts of the Russian society.
So that's the second way in which I think the ICC can help the discipline of
international relations and forms another part of international relations.
The last way that maybe there are more is the ICC as a tool of states, as an instrument of states.
And I want to talk here specifically about the and its link to fact in this.
Of course, whether it's an effective tool, the tool of prevention, because, of course, prevention was actually at the heart of the ICC, that,
you know, this was going to be a project and therefore not an inexpensive project, a project that would require the resources of states.
And part of the way that it was sold is that this will not only deal with instances where we will prosecute,
but it also has a preventive dimension where selling the court because it has a preventive dimension.
So the architects of the ICC actually claim that prevention of these crimes was going to be an important objective.
The preamble to the statute explained that the state parties were determined to put an end to impunity for
the perpetrators of the most serious crimes and thus to contribute to the prevention of those crimes.
Now, of course, there's a huge debate on this, and you will all have views on it.
But I think there are two ways in which are two two factions in which I think the crimes that the court can potentially prevent crime.
The first is in a very immediate sense,
and I want to come back to that and talk a little bit about the Libya example so the court can be used with the processes of the court,
can be used in a strategic game of in which deterrence is the objective.
And we are appealing to and using a framework of cost benefit calculations.
And the threat of punishment is being used as part of that in a very immediate sense.
And this would be very late stage prevention, if you will, where an act is about to be committed.
And then secondly, of course, the court can be thought of as having a longer term preventive effect.
And this is what the chief prosecutor and others who surround the court like to talk about,
that it has this potential to play what is called in the code of conflict prevention literature, a structural role.
But actually, there there are two possibilities.
There is a kind of educational function that the court, over time, through its process, is the way in which it operates,
the mechanism by which it uses, the style in which it engages with populations, inculcates moral and legal values.
So there is a kind of educational function.
And then in the second structural sense, there is the whole capacity building agenda of which the court is very upfront about right?
That part of its agenda is to build capacity in states as part of the principle of
complementarity to have effective and legitimate domestic institutions of justice.
Now, all three of those are potentially very powerful.
And I think in a way, at ten, we should we should be asking ourselves at how effective the court can be.
And in a way, from a research perspective, some of these are very, very hard to assess, just like they are in domestic society.
You know, what is the role of courts in prevention domestically and what is the role of courts in education domestically?
And I would I would assert that sometimes I think we hold the ICC to incredibly high standard with the thinking about prevention,
which we may not always use when we're thinking about domestic legal instruments.
But let me turn to this this most immediate tool for my last few minutes of using the court and international criminal justice
in that very late stage as a tool of of diplomacy and touch a little bit on the so-called peace versus justice debate in this,
because I think really that peace versus justice debate,
which has been discussed in so many ways, is really centred on issues of causality and timing.
Right. What does it take to get a lasting peace that is actually not also normatively desirable?
And does justice actually yield peace dividends?
Or is justice built on the back of political bargains and stable institutions?
And those are some of the issues at the heart of this. Of course,
the Justice First proponents in that debate think that justice is an instrument that has the capacity to marginalise
perpetrators and that the prospects for peace will follow and flow pretty quickly once those perpetrators have been dealt with.
The critics of that logic argue that the calculation about what it takes to contain or remove very
powerful spoilers to kind of use the conflict language is actually far more complex than that.
And it also matters whom you replace those perpetrators with.
Right. And if you can't mobilise support for containing spoilers and backing reformers, then it might actually be better to wait on justice.
That's kind of been the core of the debate. Now,
I think a key question that emerges from this is what's the relationship between these
ideas and between justice and diplomacy during conflict and peace negotiations?
Because unless the pursuit of justice is very carefully negotiated with key stakeholders, it's likely to backfire or could backfire.
If international justice is going to be used as a tool of international diplomacy, which I argued was explicitly in the Libby case.
Then we need to think about how it should be applied effectively.
Under what conditions can it actually be applied? Now, the lawyers, they just briefly did that very suggestion that we think of it as a tool.
But the reality is that's how it was used. If you think about the debate in the Security Council, particularly the debate over 1970.
They debated for a long time about whether to threaten referral as opposed to whether to refer.
And lots of people said, let's just threaten because that'll do the job we want us to do.
And others said, no, let's actually refer. But it was clearly at that point a tool of coercive diplomacy.
It was not being thought of first and foremost as a tool of justice.
So in what way that can this tool actually be used?
And for those who are lawyers and that don't like this talk, just cause you're going to go down the line.
So I think I mean, there are some who argue and I have some sympathy for this.
And I,
I would advise you to look in particular at some of the work of Lesley de Jamari kind of in response to the Kathryn Sekulic literature on justice.
But, you know, it may be the greatest room for diplomatic manoeuvre is actually before indictments come down rather than then afterwards.
But if we think about the Libya case,
I think it's it's very interesting because here the ICC moved so fast and indeed its capacity to move fast was seen as dubious by some,
given that it couldn't move fast in other contexts. But that you could argue it actually undermined the legitimacy of the investigation
and actually that it also failed to capitalise on the real potential of the tool,
which would be to use a so-called,
you know, wedge strategy that those who are actually fighting on the ground are the ones who are really paying attention to these referrals,
not so much those at the very top. And they are calculating the costs that they face if they continue to fight.
So the referral in that instance may have had the greatest potential with that group rather than Gadhafi himself.
And if you believe that those kinds of rational calculations were being made, then a better way,
perhaps 2 minutes to drive a wedge between Gadhafi and his and his supporters might have been to say, we'll give you a week to put down your arms.
Very few people believed Gadhafi was actually going to change his mind, but people believed that those around him might actually be affected by this.
But not only did the council fail to pursue this wedge strategy, but it,
of course, didn't support a bargaining strategy with Gadhafi to end the conflict.
It actually reinforced the impression that the Security Council design was regime change and not simply protecting civilians.
Now, maybe bargaining of this kind was not the goal when the council referred Libya to the ICC.
But as I suggested, it's hard to think it was a mechanism of justice at this stage.
But remember that the referral was at the bottom of the list of sanctions that were clearly intended to shape the behaviour of the Libyan government.
Sanctions were conditional. The referral was not right.
So the resolution in a sense contradicted itself.
Sanctions suggested that the council wanted Gadhafi to change his behaviour and that this would be sufficient.
And the referral signals that regardless of Gadhafi's behaviour, the ICC would try it.
And indeed, some states said afterwards, Wow, we didn't think Ocampo was actually going to move this fast and actually do this.
But you ask yourself, you know, what did you think? What did you think was going to happen?
I'll just close by saying, you know, far from suggesting that I think these referrals are necessarily a good thing,
I'm just giving you an example of how you might think about it.
I think we need to be very careful about them because I think an impression has developed that they are a tool of statecraft.
And I think I would agree with Louise Arbour here,
who said recently that we need to be extremely wary of the use of these by the Council for a couple of reasons.
One is that, of course, they they undermine the very spirit of complementarity on which the Rome Statute rests.
They are applied against states who are not parties to the Rome Statute.
And the idea here is to have accountability ultimately by having states become parties to the ICC,
not by using this mechanism that some of you may disagree with me on that.
But also, of course, this is profoundly unprincipled to have the council doing this.
You have three council members who are not signatory to the Rome Statute referring these situations to the ICC.
And yes, it might be a tool in the arsenal of statecraft, but this is where we need to think about.
My second theme, the legitimacy of this institution called the ICC.
And in the course of using this tool, what do members of international society do to this institution?
Now, some of you may think maybe that's exactly what the U.S. wants to do, is to de-legitimize it,
but it does raise the question of having that broad picture of the ICC as an institution and what that might mean.
So I'll stop there. Thank you very much. I shall not try to summarise these very complex and rich perspective and thereby unnecessarily simplify them.
But I think that one interesting leitmotif has emerged across the UN,
which is that the ICC and its emergence presents such a tectonic shift in the international normative order that
closely intertwined with the task of actually assessing the ICC is the task to rethinking our categories of success,
effectiveness, adequacy and the categories across the three disciplines represented in order to actually have
that discussion properly about what we expect the ICC and how it has done over the last ten years.
With that, I'd like to open for discussion.