1 00:00:01,980 --> 00:00:10,110 Welcome everybody to today's panel discussion. The ICC at ten, organised by the Oxford Institute for Ethics, Law and Armed Conflict. 2 00:00:10,740 --> 00:00:20,220 Not quite ten years ago, on July 1st, 2002, the statute of the International Criminal Court entered into force with the 60th ratification. 3 00:00:20,790 --> 00:00:27,630 That was about four years after its initial adoption and hence quite a little bit earlier than most predicted. 4 00:00:28,680 --> 00:00:37,230 This date marks the culmination much more than the beginning of the rise to prominence of international criminal law and its 5 00:00:37,240 --> 00:00:44,400 project to hold to account individuals rather than states for their transgressions directly in virtue of international law. 6 00:00:45,270 --> 00:00:51,239 The ad hoc tribunals for Rwanda and the former Yugoslavia of the early 1990s had revived this project, 7 00:00:51,240 --> 00:00:57,810 which really started in earnest with the Criminal Tribunals for Nuremberg and the Far East after the Second World War. 8 00:00:59,430 --> 00:01:02,909 The ICC is opening for business, if you will, about ten years ago. 9 00:01:02,910 --> 00:01:05,520 Nevertheless, is a milestone a milestone? 10 00:01:05,520 --> 00:01:15,120 Not least because it bore the potential to cure international criminal law of this taint of alleged retroactivity and victor's justice. 11 00:01:16,230 --> 00:01:20,490 That is not the explicit goal that the ICC c set for itself. 12 00:01:21,240 --> 00:01:29,190 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. 13 00:01:29,190 --> 00:01:32,999 And you could argue that even in the context of the robust rule of law, 14 00:01:33,000 --> 00:01:37,200 of a domestic jurisdiction, that would never be quite achievable to end impunity. 15 00:01:37,860 --> 00:01:46,680 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. 16 00:01:47,070 --> 00:01:52,860 The International Criminal Court. The three speakers who will do so today are the co-directors of Elac, 17 00:01:53,160 --> 00:01:58,110 and they represent the major fields of study that work together in this interdisciplinary 18 00:01:58,110 --> 00:02:03,179 research institute of briefly introduced them in the order in which they will speak and 19 00:02:03,180 --> 00:02:08,160 maybe at the end of it done a privileged philosophy here when I realised that nevertheless 20 00:02:09,120 --> 00:02:13,020 D'avoir Kanda is the Yemeni fellow of public international law at some piece of college. 21 00:02:13,530 --> 00:02:16,979 He is the author of innumerable articles on International Criminal Law and the 22 00:02:16,980 --> 00:02:21,750 co-author of the 2009 Oxford Companion to International Criminal Law and Justice. 23 00:02:22,380 --> 00:02:27,630 He is a consultant to the African Union and has assisted counsel on several cases before international courts. 24 00:02:28,890 --> 00:02:36,660 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. 25 00:02:36,990 --> 00:02:44,580 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, 26 00:02:44,580 --> 00:02:47,820 also a World Economic Forum young global leader. 27 00:02:48,750 --> 00:02:52,710 Jennifer Welsh in Absentia is professor in international relations. 28 00:02:53,250 --> 00:02:59,760 She's an expert and frequent commentator on the Responsibility to Protect and the ethics of post-conflict reconstruction. 29 00:03:00,330 --> 00:03:09,000 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. 30 00:03:09,600 --> 00:03:12,900 They will each speak for about 15 minutes and then we will open for Q&A. 31 00:03:14,610 --> 00:03:19,190 Thanks very much, Nina. First of all, let me apologise on behalf of Jennifer. 32 00:03:19,200 --> 00:03:25,740 She's teaching across town and she's going to race from beside business school to here. 33 00:03:25,940 --> 00:03:30,269 And she she hopes to be here any minute now. 34 00:03:30,270 --> 00:03:33,989 So if you see her, somebody opens the door and rushes in. 35 00:03:33,990 --> 00:03:44,010 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 36 00:03:44,010 --> 00:03:49,530 arisen in the first ten years of the operation of the International Criminal Court. 37 00:03:50,070 --> 00:03:58,170 And then go on to discuss what I would suggest has been the main contribution of the court since its establishment. 38 00:03:58,650 --> 00:04:00,240 And if I have some time, 39 00:04:00,480 --> 00:04:09,930 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 40 00:04:09,930 --> 00:04:18,180 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, 41 00:04:19,770 --> 00:04:21,540 as it has already mentioned. 42 00:04:22,380 --> 00:04:34,530 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. 43 00:04:35,130 --> 00:04:41,520 Now, in one sense, the Court the establishment of the court was very rapid, and in another sense it took forever. 44 00:04:42,000 --> 00:04:48,180 The same thing, which it took forever, is that there had been the prospect of the establishment of this court since the 45 00:04:48,180 --> 00:04:54,030 end of the Second World War and a body which all international lawyers knew about, 46 00:04:54,030 --> 00:04:56,700 but which perhaps is little known to the rest of the world. 47 00:04:56,700 --> 00:05:01,500 The International Law Commission had been working on a draft statute for the International Criminal Court. 48 00:05:02,090 --> 00:05:07,760 Since the late 1940s. So in that sense, it actually took a very long time. 49 00:05:08,390 --> 00:05:12,740 But when it was decided to convene a conference in Rome in 1998, 50 00:05:12,740 --> 00:05:18,530 I think very few people were hopeful that agreement would actually be reached 51 00:05:18,530 --> 00:05:23,090 on a statute within the time that was allotted to that conference in Rome. 52 00:05:24,140 --> 00:05:27,290 And even after agreement was reached in Rome in 1998, 53 00:05:27,290 --> 00:05:32,360 I suspect that many people thought that it would take an incredibly long time for this statute to come into force. 54 00:05:32,780 --> 00:05:33,290 After all, 55 00:05:33,290 --> 00:05:43,970 it required 60 states to ratify this statute and four other international treaties that were adopted around the same time as the Rome Statute, 56 00:05:44,480 --> 00:05:47,959 which seemed to be far less controversial than the Rome Statute. 57 00:05:47,960 --> 00:05:53,420 It had taken decades for those statutes to come into into force. 58 00:05:53,780 --> 00:05:57,139 So if you think about things that appeared to be less controversial, 59 00:05:57,140 --> 00:06:03,140 like the UN Convention on the Law of the Sea or even the International Covenant on Civil and Political Rights, 60 00:06:03,140 --> 00:06:06,800 these had taken at least a decade to come into force. 61 00:06:07,400 --> 00:06:14,960 It was remarkable then that the Rome Statute achieved the necessary 60 ratifications in the space of four years. 62 00:06:15,420 --> 00:06:20,480 And so in 2002, the statute came into force and the court was established. 63 00:06:20,900 --> 00:06:22,880 Just to remind you, and I'm sure you know this. 64 00:06:23,360 --> 00:06:30,320 The court was established to prosecute genocide, war crimes, crimes against humanity and the crime of aggression. 65 00:06:31,070 --> 00:06:36,410 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. 66 00:06:37,310 --> 00:06:40,580 There was no agreement on the definition of the crime of aggression in Rome. 67 00:06:40,850 --> 00:06:45,440 And it was decided to put aside for the moment the question of the definition of that 68 00:06:45,440 --> 00:06:50,749 crime and the circumstances under which the court could prosecute for for aggression. 69 00:06:50,750 --> 00:06:54,290 And if I have time, I will I will return to to that. 70 00:06:55,790 --> 00:06:58,820 Why a permanent International Criminal Court? 71 00:06:59,330 --> 00:07:06,830 Well, it was thought that having a permanent international criminal court would mean that the international community would not need to 72 00:07:06,830 --> 00:07:15,200 continue to establish ad hoc tribunals dealing with particular episodes of international crimes in various parts of the world. 73 00:07:15,830 --> 00:07:22,580 And the idea behind the establishment of the ICC was that a permanent court would provide a 74 00:07:22,580 --> 00:07:27,950 more realistic prospect that these international crimes would actually be be prosecuted. 75 00:07:28,400 --> 00:07:36,560 There was also some thought that having a permanent ICC would reduce the costs of prosecuting international crimes. 76 00:07:37,790 --> 00:07:44,260 One of the key features of the ICC, and this is something that I'm going to spend a bit of time talking about. 77 00:07:44,280 --> 00:07:49,280 One of the key features of the ICC is that unlike other international criminal tribunals, 78 00:07:49,280 --> 00:07:54,890 it is based on this principle called the principle of complementarity. 79 00:07:55,790 --> 00:08:04,160 And that word complementarity was introduced into the English language by the statute of the ICC. 80 00:08:04,760 --> 00:08:08,030 James Crawford, who is the Professor of public in the Hill, 81 00:08:08,030 --> 00:08:14,299 professor of Public International Law at Cambridge and who was one of the principal draughtsmen of the ICC statute, 82 00:08:14,300 --> 00:08:19,100 says that one of his greatest contributions is this word complementarity. 83 00:08:19,100 --> 00:08:25,969 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. 84 00:08:25,970 --> 00:08:29,990 It's incredibly frustrating because Microsoft Word does not recognise this word. 85 00:08:30,800 --> 00:08:35,410 And every time we type this word, there is that squiggly line underneath. 86 00:08:35,430 --> 00:08:41,120 Right. But this is a foundational principle of of the ICC. 87 00:08:41,120 --> 00:08:46,340 And what it means is that the jurisdiction of the ICC is subsidiary to national jurisdiction. 88 00:08:46,850 --> 00:08:57,650 In other words, the ICC can only exercise jurisdiction in cases where national courts are not exercising jurisdiction with respect to to that crime. 89 00:09:01,100 --> 00:09:11,360 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. 90 00:09:11,690 --> 00:09:14,870 It's taken nearly ten years for us to get to to this point. 91 00:09:15,350 --> 00:09:22,190 So even though the Rome Statute came into force very quickly, the court itself has not operated very quickly. 92 00:09:22,610 --> 00:09:29,060 And when one compares this with any other international tribunal, the pace has been unbelievably slow. 93 00:09:29,510 --> 00:09:34,350 Even the ad hoc tribunals, the International Criminal Tribunal for the former Yugoslavia, 94 00:09:34,380 --> 00:09:40,190 not for Rwanda, which have also operated slowly, even they have operated much quicker than this. 95 00:09:40,610 --> 00:09:45,760 Now there are some explanations for the slow pace of the ICC. 96 00:09:45,770 --> 00:09:53,180 For example, unlike Nuremberg and unlike Tokyo, there wasn't a set of defendants waiting to be tried. 97 00:09:53,630 --> 00:10:03,380 And unlike the ICC wide, unlike the ICC, ah, it was it was not immediately obvious where the first cases would come from. 98 00:10:03,650 --> 00:10:10,490 Where in the world those cases would come from. But even then, the pace has still been incredibly slow. 99 00:10:10,970 --> 00:10:19,850 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. 100 00:10:20,180 --> 00:10:26,240 So to arrive at the completion of the first trial after ten years has been incredibly slow. 101 00:10:27,410 --> 00:10:31,310 Now, the two problems that I want to talk about. 102 00:10:34,030 --> 00:10:39,490 It was originally thought that most of the cases brought to the court would be as a result of state referrals. 103 00:10:39,520 --> 00:10:43,780 You will recall that there are three ways in which the jurisdiction of the court can be triggered. 104 00:10:44,230 --> 00:10:48,580 First of all, a matter can be referred to the court by state party. 105 00:10:48,940 --> 00:10:52,810 Secondly, the prosecutor can exercise jurisdiction on his own motion. 106 00:10:53,170 --> 00:10:57,430 And thirdly, the UN Security Council can refer the matter to the ICC. 107 00:10:58,060 --> 00:11:05,740 It was originally thought that in most cases the court would probably acquire a jurisdiction as a result of state referrals. 108 00:11:07,120 --> 00:11:16,000 And three out of the seven case situations sorry that have been referred to the ICC have been referred to the ICC by states. 109 00:11:16,450 --> 00:11:21,009 The two situations they've been referred to the ICC by the UN Security Council and in the 110 00:11:21,010 --> 00:11:27,190 further to those situations have been triggered by the prosecutor acting on his own motion. 111 00:11:28,210 --> 00:11:34,750 However, what has happened with respect to state referrals has been very different from what was originally contemplated. 112 00:11:35,350 --> 00:11:42,310 So instead of one state referring a situation arising in another state to the ICC, 113 00:11:42,700 --> 00:11:51,040 what has happened is that states have referred to the court situations which arose within their own country, 114 00:11:51,040 --> 00:11:59,860 in other words, situations within that state where it appears that international crimes have been committed and this is what is called self referrals. 115 00:12:00,970 --> 00:12:08,200 Now that process has had some positive aspects, but it has also posed some challenges not only to how the court operates, 116 00:12:08,200 --> 00:12:14,620 but also challenges to how we conceive of the court and what the court is meant to do. 117 00:12:15,730 --> 00:12:21,100 Now self referrals have proved to be very positive for the court in the sense that first of all, 118 00:12:21,100 --> 00:12:24,940 this was the mechanism that supplied the first three situations to the court. 119 00:12:25,210 --> 00:12:31,630 So these were the situations in the Democratic Republic of Congo, in Uganda, and in the Central African Republic. 120 00:12:32,200 --> 00:12:35,590 So it helped the court to get going. 121 00:12:36,910 --> 00:12:43,989 And the fact that those three situations arose out of self-referral has meant that the states in 122 00:12:43,990 --> 00:12:51,310 whose territories the crimes were committed has been committed also to prosecutions by the court. 123 00:12:51,610 --> 00:13:01,420 So there has been state by state cooperation and the court has been able to carry out investigations with relative ease within those states. 124 00:13:01,780 --> 00:13:08,050 So that has been the positive aspect of self-referral. However, the challenges have also been been obvious. 125 00:13:08,950 --> 00:13:13,450 First of all, when states have referred crimes to the ICC, 126 00:13:14,230 --> 00:13:21,580 they have not intended that the ICC will prosecute crimes that were committed by government officials. 127 00:13:22,030 --> 00:13:27,160 Usually when states refer these crimes to the ICC, what they're really saying is, 128 00:13:27,400 --> 00:13:35,080 can you please come in and help us to prosecute these nasty rebel groups that are operating in our territory? 129 00:13:37,060 --> 00:13:43,360 The Court has stated that such referrals cannot be limited only to the acts of opposition forces, 130 00:13:43,360 --> 00:13:46,720 but must be taken as a referral of the situation as a whole. 131 00:13:47,320 --> 00:13:59,380 But in practice, the ICC in all those cases has only prosecuted non-state actors engaged in in alleged criminality within those regions. 132 00:13:59,740 --> 00:14:04,420 So in theory, the acts of all sides are open to investigation and prosecution. 133 00:14:04,840 --> 00:14:07,990 But in practice, the court has only focus on the non-state party. 134 00:14:08,320 --> 00:14:12,340 And you can imagine that the positive aspect of self-referral, which I referred to, 135 00:14:12,340 --> 00:14:17,020 the fact that the court has been able to investigate with relative ease, 136 00:14:17,350 --> 00:14:24,940 might well change the day that the prosecutor decides to indict somebody from the government side. 137 00:14:26,470 --> 00:14:36,640 Now, self-referral poses not just those practical challenges to the court, but it also challenges our conception of what the ICC is for. 138 00:14:37,570 --> 00:14:44,200 So first of all, Self-referral has challenged the idea of complementarity, which I referred to a moment ago, 139 00:14:44,590 --> 00:14:50,110 the idea that the court is there as a court of last resort that is there, 140 00:14:50,110 --> 00:14:55,990 that the Court is there to operate in situations where national systems are not operating. 141 00:14:56,440 --> 00:15:01,060 So complementarity suggests that the courts is just there to fill the gaps or 142 00:15:01,390 --> 00:15:07,240 in domestic legal systems gaps that would otherwise give rise to impunity. 143 00:15:08,500 --> 00:15:12,850 However, self-referral means that instead of the court operating as a quarter of last resort, 144 00:15:12,910 --> 00:15:15,970 the court in effect, operates as a court of first resort. 145 00:15:16,300 --> 00:15:24,550 So rather than these states saying we will prosecute these crimes, they call on the ICC and they say, you come and do it. 146 00:15:25,750 --> 00:15:31,840 It means that instead of states bearing the primary responsibility for the prosecution of international crimes. 147 00:15:32,490 --> 00:15:36,480 Kids can simply hand over these cases to the ICC. 148 00:15:37,260 --> 00:15:44,670 And this, of course, could lead to an overburdening of of the court, something that complementarity is supposed to prevent. 149 00:15:46,350 --> 00:15:52,320 Now, my own view is that whilst self-referral while self referrals does have these challenges, 150 00:15:53,100 --> 00:15:56,880 those challenges only arise if one has a particular view of the courts. 151 00:15:56,910 --> 00:15:58,830 The view that I expressed earlier. 152 00:15:59,250 --> 00:16:10,470 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. 153 00:16:11,220 --> 00:16:14,910 However, there is another way of viewing the principle of complementarity. 154 00:16:15,270 --> 00:16:21,120 In other words, viewing it not as a as the court operating as a quarter of last resort, 155 00:16:21,120 --> 00:16:26,970 but viewing it as a principle of deference in cases of actual conflict of jurisdiction. 156 00:16:27,540 --> 00:16:36,330 In other words, complementarity only arises in cases where both the ICC and national courts are actually prosecuting. 157 00:16:37,080 --> 00:16:44,610 And in the case of such a conflict, then complementarity says that the court must defer to the national system. 158 00:16:51,760 --> 00:16:57,399 Now the other related challenge that has been caused by self referrals is the point that I made earlier, 159 00:16:57,400 --> 00:17:07,090 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. 160 00:17:07,450 --> 00:17:13,570 Now it's quite clear that the court has jurisdiction both over state actors and non-state actors. 161 00:17:14,710 --> 00:17:22,180 But some have argued that self-referral is problematic because it's in the case of state actors in particular, 162 00:17:22,180 --> 00:17:26,739 that we need international criminal justice, that in the case of non-state actors, 163 00:17:26,740 --> 00:17:33,910 we can leave that to states to sort out that the real challenge for international criminal justice is dealing with, if you like, 164 00:17:33,910 --> 00:17:42,580 state criminality, circumstances where the the apparatus of the state is is used and that self-referral challenges that. 165 00:17:43,210 --> 00:17:51,370 And so in this sense, what we are seeing is really a sort of perversion of what ought to be within international criminal justice, 166 00:17:51,370 --> 00:17:54,490 focussed essentially on non-state actors. 167 00:17:55,300 --> 00:17:56,710 And I think there is a point there. 168 00:17:57,100 --> 00:18:04,350 However, it could be argued that the purpose of international action for in this area is really to prevent impunity. 169 00:18:04,450 --> 00:18:09,790 It's not so much to focus on a particular type of actor, but to prevent impunity. 170 00:18:09,790 --> 00:18:14,350 In other words, a situation where actors would otherwise go unpunished, 171 00:18:14,500 --> 00:18:22,300 and that to the extent that self referrals help us to do that, it is within the purpose of the ICC. 172 00:18:23,110 --> 00:18:29,830 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. 173 00:18:30,370 --> 00:18:32,529 The second problem that I really wanted to talk about, 174 00:18:32,530 --> 00:18:39,820 and maybe we can talk about it in question answer time is the relationship between the International Criminal Court and African states. 175 00:18:40,750 --> 00:18:47,650 This is something that has proven to be a big challenge over the last four years. 176 00:18:48,250 --> 00:18:56,440 I think the story of the relationship between African states and the ICC can be traced in various phases. 177 00:18:56,470 --> 00:19:05,680 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 178 00:19:05,680 --> 00:19:11,430 the UN Security Council referred the situation in Darfur to the ICC and most importantly, 179 00:19:11,440 --> 00:19:17,380 changed after the prosecutor sought the indictment of Sudanese President Omar al-Bashir. 180 00:19:18,580 --> 00:19:23,800 And I will just sketch out very quickly what the tensions have been. 181 00:19:24,580 --> 00:19:28,510 Essentially since the prosecutor sought the indictment of Bashir. 182 00:19:28,510 --> 00:19:40,950 We have seen repeated calls by the African Union for non-cooperation by African states with the ICC twice a year. 183 00:19:40,960 --> 00:19:47,140 Now, actually, it's now a routine, much like the General Assembly passes a bunch of resolutions against Israel. 184 00:19:47,410 --> 00:19:52,780 The African Union now twice yearly passes, a bunch of resolutions against the ICC. 185 00:19:54,160 --> 00:20:03,250 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. 186 00:20:03,910 --> 00:20:06,970 First of all, and I'll say this on to the finish there. 187 00:20:07,690 --> 00:20:12,100 First of all, African states continue to ratify the statute of the ICC. 188 00:20:13,780 --> 00:20:19,210 I think they've been three ratifications from African states in the last year and a half or thereabouts. 189 00:20:19,660 --> 00:20:26,620 Secondly, African states continue to support ICC prosecution in most of the ICC cases. 190 00:20:26,890 --> 00:20:34,120 The tension has arisen actually principally in those cases that were referred to the ICC by the Security Council, 191 00:20:34,600 --> 00:20:41,860 principally a little bit in relation to Kenya, but principally in relation to Sudan and Libya and even in relation to those situations. 192 00:20:41,860 --> 00:20:45,579 The African Union has dropped its objection to prosecutions, 193 00:20:45,580 --> 00:20:51,700 except in the case of the Darfur situation and except in the case of the prosecution of Bashir. 194 00:20:52,240 --> 00:21:04,750 And finally, for a number of African states continue to support ICC prosecution and the the mood 195 00:21:04,750 --> 00:21:08,920 of the African Union and the resolutions that have been adopted by the African Union. 196 00:21:09,310 --> 00:21:14,080 The mood and the tone of them have changed over the last couple of years. 197 00:21:14,320 --> 00:21:19,660 Unfortunately, I need to stop there, but I can return to some of these issues later on thanks to our. 198 00:21:19,660 --> 00:21:23,610 But I suggest we move directly on to David Rohde in protection. 199 00:21:25,570 --> 00:21:35,770 Well, when we look at the ICC after ten years and ten years of achievements, but also ten years of challenges. 200 00:21:36,340 --> 00:21:41,770 Should we view the glass as being half empty or half full? 201 00:21:42,610 --> 00:21:49,510 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. 202 00:21:50,060 --> 00:21:55,130 Management consultants NASA and both Jennifer and I were practitioners of that, 203 00:21:55,580 --> 00:22:01,700 and a former time management consultant will say, Your count is just twice as big as it needs to be to downsize. 204 00:22:03,890 --> 00:22:11,360 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. 205 00:22:12,680 --> 00:22:20,059 But when you think about the 1973 situation, sticky situations like we find the ICC in its current state of development, 206 00:22:20,060 --> 00:22:26,900 it seems to make a very considerable difference whether the level of the water is going up or down, 207 00:22:27,140 --> 00:22:32,350 in other words, whether there is movement and what the direction of that travel is. 208 00:22:32,370 --> 00:22:36,439 So what I thought I would spend a little bit of time thinking about is how that question 209 00:22:36,440 --> 00:22:43,309 of the dynamics or the transitional aspect of what the ICC is trying to establish here, 210 00:22:43,310 --> 00:22:51,110 how that plays into some of the characteristic problems that we see the ICC as having experienced within the last ten years, 211 00:22:51,110 --> 00:22:55,820 particularly with respect to this very notorious trade off between justice and peace. 212 00:22:56,510 --> 00:23:02,899 And I started thinking about this, I guess, when I recalled a very remarkable meeting that I went to in 2006, 213 00:23:02,900 --> 00:23:06,889 a sitting organised by a person I know to many of you in the room, 214 00:23:06,890 --> 00:23:12,320 Larry May, who at that time was at Washington University and the conference that he had 215 00:23:12,320 --> 00:23:15,980 organised was to commemorate the 60th anniversary of the Nuremberg trials. 216 00:23:16,790 --> 00:23:22,520 And every luminary from the world of international justice was there at that meeting. 217 00:23:22,940 --> 00:23:31,069 Whitney Harris and Henry King, who at that time were the last two surviving members of the original US prosecuting team at Nuremberg. 218 00:23:31,070 --> 00:23:39,180 And both of them have now sadly passed away. But I remember Whitney Harris's presentation very, very vividly. 219 00:23:39,180 --> 00:23:41,180 It was an absolutely electrifying presentation. 220 00:23:41,960 --> 00:23:46,880 His thesis was that there had been three great waves in the development of international criminal justice. 221 00:23:46,880 --> 00:23:52,010 The first was the one that they themselves had initiated with no other trial take. 222 00:23:52,010 --> 00:23:58,760 Your father had really established many of the principles that would become operative in international criminal justice going forward. 223 00:23:59,300 --> 00:24:06,250 And the second way he identified was the one that we saw with the establishment of the International Criminal Tribunal, 224 00:24:06,710 --> 00:24:10,040 the Rome Statute, leading up, obviously, to the establishment of the ICC. 225 00:24:10,730 --> 00:24:19,160 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, 226 00:24:19,160 --> 00:24:29,450 one that he saw as being available to the participation of essentially the new generation of scholars, 227 00:24:29,960 --> 00:24:36,510 lawyers, jurists and and politicians to whom he was implicitly saying the mandate would now be passed 228 00:24:36,510 --> 00:24:41,600 2 to 2 to carry on this this great project of developing international criminal justice. 229 00:24:41,600 --> 00:24:49,999 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. 230 00:24:50,000 --> 00:24:55,579 But but, you know, what struck me as being really right and important about that was that we we 231 00:24:55,580 --> 00:25:01,160 view all of these questions in the context of the fact that this is a project, 232 00:25:01,460 --> 00:25:08,030 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. 233 00:25:08,030 --> 00:25:16,999 But it is definitely occurring within a dynamic context, one in which we hope that the the powers and authorities of the institutions, 234 00:25:17,000 --> 00:25:25,580 as we find them today, will develop over time into something that is potentially more concrete, more robust and stronger as time goes forward. 235 00:25:26,720 --> 00:25:32,270 The thing I also took from that presentation was that this is a very, very long game indeed, 236 00:25:32,480 --> 00:25:38,030 a game whose time is measured in generations, rather, rather than in decades. 237 00:25:38,510 --> 00:25:41,510 But I guess that that question is the one that I want to interrogate a little bit. 238 00:25:41,510 --> 00:25:46,879 How how do we think about the kinds of trade-offs that we're forced to make 239 00:25:46,880 --> 00:25:50,420 when thinking about some of the decisions that the ICC has been involved in, 240 00:25:50,720 --> 00:25:58,980 in the context of the fact that it is an institution that is in in progress, in development, as it were. 241 00:26:00,650 --> 00:26:07,100 Well, I'm a philosopher. And so one of the natural things, I guess, is to look back at the philosophical tradition, 242 00:26:07,100 --> 00:26:13,610 to see the can and to see what assistance can be found in answering those kinds of questions. 243 00:26:13,970 --> 00:26:20,870 And I suppose the distressing conclusion I reached, knowing that this was this was to realise that there isn't a lot. 244 00:26:21,200 --> 00:26:25,260 So, so one of the first things that you might look to is to say, well, what, 245 00:26:25,350 --> 00:26:29,629 what does the social contract tradition have to say about these kinds of questions? 246 00:26:29,630 --> 00:26:37,310 Because the social contract tradition is embodied by its great classical thinkers in the tradition, which is Hobbs Law, 247 00:26:37,310 --> 00:26:45,440 for books that are explicitly addressing the question of how we think about the normativity inherent and the transition from, 248 00:26:45,440 --> 00:26:49,820 as it were, a state of nature out of state and ruled by government of law and effectively. 249 00:26:50,040 --> 00:26:54,630 Institutions, too, one which is ruled by those institutions. 250 00:26:54,960 --> 00:27:00,060 And as we know, the basic form of the argument is one that says that the costs, 251 00:27:00,450 --> 00:27:07,439 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, 252 00:27:07,440 --> 00:27:14,399 very powerful, compelling reason to collectively sacrifice some of our sovereignty in order to set up sovereign 253 00:27:14,400 --> 00:27:19,230 institutions that are able to effectively administer justice in an authoritative way. 254 00:27:20,040 --> 00:27:24,900 Well, that's you know, that sounds like a helpful and helpful conclusion to reach. 255 00:27:25,500 --> 00:27:30,810 But the problematic, of course, is that this entire argument is, as it were, constructed post hoc, 256 00:27:30,900 --> 00:27:37,770 and this argument is deployed as a legitimate in total is deployed from within a society that already has this institution. 257 00:27:38,550 --> 00:27:41,940 So we look back and we imagine ourself to be in the position of the state of nature. 258 00:27:41,940 --> 00:27:44,309 And we say, well, if we were in a state of nature like that, 259 00:27:44,310 --> 00:27:53,820 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. 260 00:27:54,900 --> 00:28:00,630 But the problem is that that's that's not the dynamic that we face with something like the development of the ICC. 261 00:28:01,260 --> 00:28:03,620 What we see with the development, the ICC, I mean, 262 00:28:03,630 --> 00:28:12,180 and this is the I guess the the optimistic interpretation is that if anything, we are we are in that process itself, 263 00:28:12,180 --> 00:28:16,259 a transformation from something akin to a state of nature to something that, 264 00:28:16,260 --> 00:28:21,340 you know, we hope may maybe something more like a situation of the rule of law. 265 00:28:21,840 --> 00:28:27,540 And the contract document tells us very little about how that transition is to be made. 266 00:28:28,200 --> 00:28:30,129 It assumes that we've already made that transition, 267 00:28:30,130 --> 00:28:34,710 and we know that that transition must be possible because we find ourselves in a situation of sovereign authority. 268 00:28:35,100 --> 00:28:42,360 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. 269 00:28:44,100 --> 00:28:48,120 So one kind of conclusion you might draw from this is that, well, you know, the contract turning conclusion, 270 00:28:48,120 --> 00:28:56,189 which says there's a very powerful reason to establish authoritative institutions and mechanisms of rule of law is something like an aspiration. 271 00:28:56,190 --> 00:29:02,180 It's a normal of aspiration, but it's not entirely determinative of what you have to do in particular, 272 00:29:04,950 --> 00:29:11,700 and in particular how a cause like trading off between between justice and peace. 273 00:29:12,350 --> 00:29:19,319 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. 274 00:29:19,320 --> 00:29:24,270 I mean, aspirations to me are like, you know, one day I'll do the anger trail and get a macro picture. 275 00:29:24,290 --> 00:29:26,219 You know, I'm never going to do it, 276 00:29:26,220 --> 00:29:30,810 but it makes me feel better about myself to think of myself as the kind of person who would do something like that. 277 00:29:32,100 --> 00:29:38,670 So aspirations is, in a sense, a much, much too weak interpretation for what's what's going on there. 278 00:29:38,850 --> 00:29:43,470 And it surely needs to be something with more bite to it than that. 279 00:29:44,880 --> 00:29:52,080 The other way that we have of of dealing with these these kinds of issues and trade-offs is through an explicitly consequentialist framework. 280 00:29:52,800 --> 00:29:54,270 So the consequences would do, as you said, 281 00:29:54,270 --> 00:30:05,849 where we we need to look at the benefits that can be achieved long term by building up the the institutional and and rule 282 00:30:05,850 --> 00:30:13,290 bound elements of the court and compare that with the costs that would have to be suffered for achieving that right now. 283 00:30:13,320 --> 00:30:19,110 So take one example that David mentioned, the al-Bashir indictment. 284 00:30:19,120 --> 00:30:29,459 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 285 00:30:29,460 --> 00:30:34,530 was taken to close the country to a number of NGOs who were at that time operating within the country and offer it up, 286 00:30:35,220 --> 00:30:38,430 providing life, giving support. So you might say, well, look, 287 00:30:38,460 --> 00:30:43,440 what we need to do is look at the impact that that has on the lives of individuals within the country 288 00:30:43,440 --> 00:30:52,409 and compare that to the long term benefits that might be expected through the decision to stick to, 289 00:30:52,410 --> 00:30:59,550 as it were, purely principled law based reasons rather than taking into account these broader pragmatic political, humanitarian reasons. 290 00:31:01,050 --> 00:31:04,970 Now, I think that that's really a pretty hopeless route. 291 00:31:04,980 --> 00:31:06,930 I think that for for a number of reasons. 292 00:31:06,930 --> 00:31:15,059 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. 293 00:31:15,060 --> 00:31:24,480 What what will the beneficial consequences of, as it were, taking the decision to enhance the principled institutional mechanisms of the court? 294 00:31:24,660 --> 00:31:26,940 BE Well, we don't know. How can we know that? 295 00:31:26,940 --> 00:31:32,849 And the extent to which there will be beneficial consequences will presumably depend in part on our ability 296 00:31:32,850 --> 00:31:38,540 to precisely make those decisions on the basis of legal principle rather than these broader political, 297 00:31:38,550 --> 00:31:44,610 pragmatic questions. So that route, I think, is really is really a pretty, pretty hopeless one. 298 00:31:44,610 --> 00:31:49,700 There has to be, I think, a rule for some kind of principle which is deeper than the feeling. 299 00:31:49,840 --> 00:31:53,860 Consequentialist, although how exactly that will fit in. 300 00:31:53,860 --> 00:32:01,030 I have to say that I don't have a clear, clear understanding of one kind of just fair iteration of that. 301 00:32:01,180 --> 00:32:07,120 There's an interesting article published by Michael Streit just this month in Ethics International Affairs, 302 00:32:07,600 --> 00:32:14,230 who argue that in situations like like the the the Sudan case that I've just mentioned, 303 00:32:14,470 --> 00:32:18,730 what the court should do is, in fact, make a decision on a pragmatic basis, 304 00:32:18,730 --> 00:32:24,250 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. 305 00:32:24,880 --> 00:32:28,030 Now, the consequence of this argument itself is problematic. 306 00:32:28,040 --> 00:32:34,869 I think this one is is doubly problematic. Not only do we have all of the horrible, intractable epistemic issues, 307 00:32:34,870 --> 00:32:40,310 but we also have the problem of what Bernard Williams famously called government house utilitarianism. 308 00:32:40,320 --> 00:32:45,309 So, you know, he imagined a case where, you know, the wise philosopher came to say, 309 00:32:45,310 --> 00:32:55,810 we hope would make judgements from a perspective of perfect utilitarianism, but they would pretend to do so on on quite, quite different principles. 310 00:32:55,810 --> 00:33:00,730 They would pretend to do so on the basis of principles that were not utilitarian. 311 00:33:01,120 --> 00:33:06,700 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, 312 00:33:07,090 --> 00:33:15,970 generating the kind of legitimacy and authority on the basis of action that had this absolutely intentional double standard going going on within it. 313 00:33:17,200 --> 00:33:20,920 So what one answers, what resources are there? 314 00:33:21,430 --> 00:33:29,530 I mean, the distressing conclusion, I guess, is that I can see very little in the way of really clear determinative guidance, 315 00:33:30,490 --> 00:33:35,620 at least, you know, looking within within the traditional on issues precisely like this. 316 00:33:36,340 --> 00:33:44,860 But one one thing that I think is something that needs a lot more thought and and research and attention paid to it. 317 00:33:45,340 --> 00:33:53,020 But one that kind of interesting is that where that potential analogy was to think about the way that. 318 00:33:56,220 --> 00:34:07,320 Political thinkers, philosophers, but also potentially institutions such as a court can potentially play a role in this, as it were. 319 00:34:07,320 --> 00:34:13,020 This process of evolution, this process of development that I talked about by simply as it were, 320 00:34:13,050 --> 00:34:18,660 articulating and describing a vision of a potential way of being competent to look at it. 321 00:34:18,660 --> 00:34:19,590 So let me give you an example. 322 00:34:19,590 --> 00:34:31,650 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 323 00:34:32,670 --> 00:34:45,750 federation of free states who would voluntarily submit themselves to a structure of of shared law in order to ensure peace amongst them. 324 00:34:47,040 --> 00:34:53,910 For almost 150 years, there was no discernible political movement towards that objective at all. 325 00:34:54,600 --> 00:35:00,510 And suddenly, after the Second World War, in the most unlikely context imaginable, 326 00:35:00,990 --> 00:35:05,490 six European states formed together into the EEC originally around the, you know, 327 00:35:05,500 --> 00:35:08,670 as you remember around the topics, not of another peace or of, you know, not, 328 00:35:08,670 --> 00:35:12,960 not of shining vision, of constant perpetual pace, but around coal and steel. 329 00:35:13,380 --> 00:35:17,760 And yet that created the possibility for the institution that, as we all know, 330 00:35:17,760 --> 00:35:27,059 became the European Union that looks astonishingly like the Federation of Free Sovereign States that current describes and perpetual peace. 331 00:35:27,060 --> 00:35:32,340 I find that a very, very interesting and suggestive example, 332 00:35:32,340 --> 00:35:40,350 because what it suggests is that the ways in which normative development will occur will sometimes be obscure and will sometimes come from very, 333 00:35:40,350 --> 00:35:48,659 very odd and unexpected circumstances, and that potentially one of the roles that theory can play, 334 00:35:48,660 --> 00:35:55,740 but also potentially an institution such as a criminal court, even if it doesn't have the full trappings of, you know, 335 00:35:56,430 --> 00:36:07,020 a legally mandated enforcement power and so forth, by articulating this normative vision can create the potential for this forward momentum. 336 00:36:07,890 --> 00:36:12,060 What wouldn't be, Harris, I think very, very eloquently described as as the third wave. 337 00:36:13,410 --> 00:36:16,530 Thank you, David. I think the floor goes to Jennifer Welsh. Great. 338 00:36:16,860 --> 00:36:23,020 Thanks. Apologies for being late for my own panel. Kind of like being late for your own way, but it's not quite. 339 00:36:24,150 --> 00:36:27,180 I won't take time to tell you where I was because I won't take up a little more time. 340 00:36:27,750 --> 00:36:35,760 I want to focus as I'm you meant to be the sort of politics leg of this discussion on 341 00:36:35,760 --> 00:36:42,569 the role of the courts in international politics and the potential role that it plays. 342 00:36:42,570 --> 00:36:46,140 And I'm going to I'm going to identify three, but talk mainly about one. 343 00:36:48,240 --> 00:36:58,500 The first is that I think the court is part of a broader phenomenon that we actually study very little in international relations. 344 00:36:58,500 --> 00:37:10,770 And that is the phenomenon of criminalisation, that we we discuss normative developments, we discuss how things become prohibited, become taboos. 345 00:37:11,340 --> 00:37:21,840 But the actual process of criminalisation, what it means to have something, be a crime in international politics has not been widely studied. 346 00:37:21,840 --> 00:37:27,150 And I'm happy to say that one of my graduate students who's in the audience is studying precisely this phenomenon. 347 00:37:27,840 --> 00:37:32,760 But it strikes me that the court is the heart of that, but it is not the only element in that. 348 00:37:32,940 --> 00:37:38,460 And I think that's something we need to remember. And that process is, of course, a social process. 349 00:37:39,240 --> 00:37:46,320 And so it raises the question of of what, if anything, can the processes of criminalisation in other contexts prove, 350 00:37:46,530 --> 00:37:51,810 you know, predominantly in domestic context, tell us or teach us about how it might evolve internationally? 351 00:37:52,320 --> 00:37:58,680 And what is it about international society that makes the process of criminalisation distinct and different? 352 00:37:59,970 --> 00:38:02,250 But it strikes me and it will sound very simplistic, 353 00:38:02,250 --> 00:38:09,440 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, 354 00:38:10,020 --> 00:38:15,090 but that it is something that stigmatise behaviour and creates an imperative to act. 355 00:38:15,750 --> 00:38:20,190 And we have not made this judgement in international society about very many things. 356 00:38:20,670 --> 00:38:25,950 Very few things have been criminalised as opposed to just being viewed as prohibited. 357 00:38:26,490 --> 00:38:30,809 And so I think the court forms part of that along with actually the development of 358 00:38:30,810 --> 00:38:36,630 the responsibility to protect principle which has at its heart before same crimes, 359 00:38:36,960 --> 00:38:44,640 although the crime of aggression now added to it, which is not part of articulated and very similar to the court. 360 00:38:44,640 --> 00:38:48,540 But as with the court, I think the principle of the responsibility to protect, 361 00:38:48,540 --> 00:38:54,900 which interestingly is also ten years old, faces this same set of questions about what? 362 00:38:55,370 --> 00:39:02,570 Now we talk a lot about large scale human rights violations, but about crimes which are not mere wrongdoing. 363 00:39:03,590 --> 00:39:07,840 So I think the ICC is part of that big and I would submit a understudied topic. 364 00:39:08,120 --> 00:39:11,780 He and I are not necessarily in international law but in I.R. 365 00:39:12,860 --> 00:39:16,400 Secondly, of course, the court is an institution, 366 00:39:17,180 --> 00:39:21,649 and therefore I think it lends itself to the same kinds of questions we ask in 367 00:39:21,650 --> 00:39:26,120 international relations about institutions and particularly their legitimacy. 368 00:39:27,320 --> 00:39:38,110 And within the international relations, of course, the legitimacy, the legitimacy of institutions is analysed not solely through procedural elements. 369 00:39:38,120 --> 00:39:43,880 You know, the way it is designed is fair, is it transparent and not solely through purpose? 370 00:39:44,030 --> 00:39:52,910 You know, does it have a purpose which resonates with the goals and values of those who are subject to it, but also effectiveness? 371 00:39:53,300 --> 00:39:58,570 You know, for better or for worse, for for students of politics and for the real world of politics, 372 00:39:58,580 --> 00:40:01,370 institutions are judged by their perceived effectiveness, 373 00:40:02,300 --> 00:40:09,770 which is why I think Dafoe's points about the relationship to African states is important because whether 374 00:40:09,770 --> 00:40:18,770 or not there is a real crisis of legitimacy with the African constituency is only part of the problem. 375 00:40:20,300 --> 00:40:23,490 The problem is broader than that to how that, you know, 376 00:40:23,570 --> 00:40:30,830 alleged injustice is viewed by other parts of international society and used by other parts of the Russian society. 377 00:40:31,880 --> 00:40:36,440 So that's the second way in which I think the ICC can help the discipline of 378 00:40:36,440 --> 00:40:39,140 international relations and forms another part of international relations. 379 00:40:40,190 --> 00:40:49,550 The last way that maybe there are more is the ICC as a tool of states, as an instrument of states. 380 00:40:50,840 --> 00:40:56,510 And I want to talk here specifically about the and its link to fact in this. 381 00:40:56,510 --> 00:41:08,060 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, 382 00:41:09,320 --> 00:41:17,690 you know, this was going to be a project and therefore not an inexpensive project, a project that would require the resources of states. 383 00:41:17,690 --> 00:41:24,139 And part of the way that it was sold is that this will not only deal with instances where we will prosecute, 384 00:41:24,140 --> 00:41:29,240 but it also has a preventive dimension where selling the court because it has a preventive dimension. 385 00:41:29,240 --> 00:41:36,440 So the architects of the ICC actually claim that prevention of these crimes was going to be an important objective. 386 00:41:36,950 --> 00:41:42,589 The preamble to the statute explained that the state parties were determined to put an end to impunity for 387 00:41:42,590 --> 00:41:49,250 the perpetrators of the most serious crimes and thus to contribute to the prevention of those crimes. 388 00:41:50,630 --> 00:41:54,170 Now, of course, there's a huge debate on this, and you will all have views on it. 389 00:41:54,170 --> 00:42:05,690 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. 390 00:42:07,730 --> 00:42:10,610 The first is in a very immediate sense, 391 00:42:11,630 --> 00:42:19,700 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, 392 00:42:19,700 --> 00:42:27,140 can be used in a strategic game of in which deterrence is the objective. 393 00:42:27,650 --> 00:42:31,880 And we are appealing to and using a framework of cost benefit calculations. 394 00:42:32,990 --> 00:42:38,770 And the threat of punishment is being used as part of that in a very immediate sense. 395 00:42:40,850 --> 00:42:45,950 And this would be very late stage prevention, if you will, where an act is about to be committed. 396 00:42:47,090 --> 00:42:55,010 And then secondly, of course, the court can be thought of as having a longer term preventive effect. 397 00:42:55,010 --> 00:43:00,200 And this is what the chief prosecutor and others who surround the court like to talk about, 398 00:43:01,130 --> 00:43:06,920 that it has this potential to play what is called in the code of conflict prevention literature, a structural role. 399 00:43:07,820 --> 00:43:10,010 But actually, there there are two possibilities. 400 00:43:10,970 --> 00:43:19,430 There is a kind of educational function that the court, over time, through its process, is the way in which it operates, 401 00:43:19,430 --> 00:43:28,520 the mechanism by which it uses, the style in which it engages with populations, inculcates moral and legal values. 402 00:43:29,210 --> 00:43:30,920 So there is a kind of educational function. 403 00:43:31,940 --> 00:43:37,830 And then in the second structural sense, there is the whole capacity building agenda of which the court is very upfront about right? 404 00:43:37,910 --> 00:43:45,440 That part of its agenda is to build capacity in states as part of the principle of 405 00:43:45,440 --> 00:43:54,680 complementarity to have effective and legitimate domestic institutions of justice. 406 00:43:56,410 --> 00:44:00,160 Now, all three of those are potentially very powerful. 407 00:44:00,220 --> 00:44:07,900 And I think in a way, at ten, we should we should be asking ourselves at how effective the court can be. 408 00:44:08,410 --> 00:44:14,860 And in a way, from a research perspective, some of these are very, very hard to assess, just like they are in domestic society. 409 00:44:14,910 --> 00:44:23,080 You know, what is the role of courts in prevention domestically and what is the role of courts in education domestically? 410 00:44:23,500 --> 00:44:29,440 And I would I would assert that sometimes I think we hold the ICC to incredibly high standard with the thinking about prevention, 411 00:44:30,550 --> 00:44:34,480 which we may not always use when we're thinking about domestic legal instruments. 412 00:44:35,860 --> 00:44:44,860 But let me turn to this this most immediate tool for my last few minutes of using the court and international criminal justice 413 00:44:45,130 --> 00:44:54,820 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, 414 00:44:56,110 --> 00:45:00,099 because I think really that peace versus justice debate, 415 00:45:00,100 --> 00:45:08,770 which has been discussed in so many ways, is really centred on issues of causality and timing. 416 00:45:09,250 --> 00:45:17,200 Right. What does it take to get a lasting peace that is actually not also normatively desirable? 417 00:45:18,040 --> 00:45:21,550 And does justice actually yield peace dividends? 418 00:45:22,000 --> 00:45:26,410 Or is justice built on the back of political bargains and stable institutions? 419 00:45:27,580 --> 00:45:30,400 And those are some of the issues at the heart of this. Of course, 420 00:45:30,760 --> 00:45:39,790 the Justice First proponents in that debate think that justice is an instrument that has the capacity to marginalise 421 00:45:39,790 --> 00:45:49,120 perpetrators and that the prospects for peace will follow and flow pretty quickly once those perpetrators have been dealt with. 422 00:45:50,660 --> 00:45:59,149 The critics of that logic argue that the calculation about what it takes to contain or remove very 423 00:45:59,150 --> 00:46:05,870 powerful spoilers to kind of use the conflict language is actually far more complex than that. 424 00:46:06,680 --> 00:46:10,560 And it also matters whom you replace those perpetrators with. 425 00:46:10,580 --> 00:46:20,120 Right. And if you can't mobilise support for containing spoilers and backing reformers, then it might actually be better to wait on justice. 426 00:46:20,900 --> 00:46:24,379 That's kind of been the core of the debate. Now, 427 00:46:24,380 --> 00:46:30,110 I think a key question that emerges from this is what's the relationship between these 428 00:46:30,110 --> 00:46:35,750 ideas and between justice and diplomacy during conflict and peace negotiations? 429 00:46:36,350 --> 00:46:46,280 Because unless the pursuit of justice is very carefully negotiated with key stakeholders, it's likely to backfire or could backfire. 430 00:46:47,150 --> 00:46:54,680 If international justice is going to be used as a tool of international diplomacy, which I argued was explicitly in the Libby case. 431 00:46:55,460 --> 00:46:58,610 Then we need to think about how it should be applied effectively. 432 00:46:59,090 --> 00:47:06,440 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. 433 00:47:06,440 --> 00:47:14,270 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. 434 00:47:14,690 --> 00:47:19,880 They debated for a long time about whether to threaten referral as opposed to whether to refer. 435 00:47:20,840 --> 00:47:24,710 And lots of people said, let's just threaten because that'll do the job we want us to do. 436 00:47:25,010 --> 00:47:32,200 And others said, no, let's actually refer. But it was clearly at that point a tool of coercive diplomacy. 437 00:47:32,210 --> 00:47:36,020 It was not being thought of first and foremost as a tool of justice. 438 00:47:36,440 --> 00:47:41,059 So in what way that can this tool actually be used? 439 00:47:41,060 --> 00:47:46,720 And for those who are lawyers and that don't like this talk, just cause you're going to go down the line. 440 00:47:47,600 --> 00:47:50,960 So I think I mean, there are some who argue and I have some sympathy for this. 441 00:47:52,730 --> 00:47:53,090 And I, 442 00:47:53,450 --> 00:48:03,920 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. 443 00:48:04,610 --> 00:48:16,640 But, you know, it may be the greatest room for diplomatic manoeuvre is actually before indictments come down rather than then afterwards. 444 00:48:17,870 --> 00:48:19,639 But if we think about the Libya case, 445 00:48:19,640 --> 00:48:32,870 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, 446 00:48:32,870 --> 00:48:39,770 given that it couldn't move fast in other contexts. But that you could argue it actually undermined the legitimacy of the investigation 447 00:48:40,340 --> 00:48:46,220 and actually that it also failed to capitalise on the real potential of the tool, 448 00:48:47,180 --> 00:48:49,670 which would be to use a so-called, 449 00:48:49,790 --> 00:48:57,200 you know, wedge strategy that those who are actually fighting on the ground are the ones who are really paying attention to these referrals, 450 00:48:57,650 --> 00:49:05,240 not so much those at the very top. And they are calculating the costs that they face if they continue to fight. 451 00:49:06,050 --> 00:49:13,130 So the referral in that instance may have had the greatest potential with that group rather than Gadhafi himself. 452 00:49:14,930 --> 00:49:20,629 And if you believe that those kinds of rational calculations were being made, then a better way, 453 00:49:20,630 --> 00:49:30,830 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. 454 00:49:32,150 --> 00:49:39,320 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. 455 00:49:40,520 --> 00:49:45,079 But not only did the council fail to pursue this wedge strategy, but it, 456 00:49:45,080 --> 00:49:48,980 of course, didn't support a bargaining strategy with Gadhafi to end the conflict. 457 00:49:49,160 --> 00:49:56,900 It actually reinforced the impression that the Security Council design was regime change and not simply protecting civilians. 458 00:49:57,890 --> 00:50:02,510 Now, maybe bargaining of this kind was not the goal when the council referred Libya to the ICC. 459 00:50:02,510 --> 00:50:06,680 But as I suggested, it's hard to think it was a mechanism of justice at this stage. 460 00:50:08,540 --> 00:50:15,680 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. 461 00:50:16,760 --> 00:50:21,410 Sanctions were conditional. The referral was not right. 462 00:50:21,800 --> 00:50:24,470 So the resolution in a sense contradicted itself. 463 00:50:25,490 --> 00:50:31,670 Sanctions suggested that the council wanted Gadhafi to change his behaviour and that this would be sufficient. 464 00:50:32,240 --> 00:50:37,130 And the referral signals that regardless of Gadhafi's behaviour, the ICC would try it. 465 00:50:37,610 --> 00:50:44,629 And indeed, some states said afterwards, Wow, we didn't think Ocampo was actually going to move this fast and actually do this. 466 00:50:44,630 --> 00:50:48,860 But you ask yourself, you know, what did you think? What did you think was going to happen? 467 00:50:49,750 --> 00:50:57,090 I'll just close by saying, you know, far from suggesting that I think these referrals are necessarily a good thing, 468 00:50:57,100 --> 00:50:59,500 I'm just giving you an example of how you might think about it. 469 00:51:00,490 --> 00:51:09,190 I think we need to be very careful about them because I think an impression has developed that they are a tool of statecraft. 470 00:51:10,060 --> 00:51:13,240 And I think I would agree with Louise Arbour here, 471 00:51:13,240 --> 00:51:20,800 who said recently that we need to be extremely wary of the use of these by the Council for a couple of reasons. 472 00:51:22,150 --> 00:51:28,780 One is that, of course, they they undermine the very spirit of complementarity on which the Rome Statute rests. 473 00:51:29,050 --> 00:51:33,310 They are applied against states who are not parties to the Rome Statute. 474 00:51:33,310 --> 00:51:39,430 And the idea here is to have accountability ultimately by having states become parties to the ICC, 475 00:51:40,000 --> 00:51:43,630 not by using this mechanism that some of you may disagree with me on that. 476 00:51:44,260 --> 00:51:50,499 But also, of course, this is profoundly unprincipled to have the council doing this. 477 00:51:50,500 --> 00:52:00,100 You have three council members who are not signatory to the Rome Statute referring these situations to the ICC. 478 00:52:00,970 --> 00:52:07,330 And yes, it might be a tool in the arsenal of statecraft, but this is where we need to think about. 479 00:52:07,660 --> 00:52:12,760 My second theme, the legitimacy of this institution called the ICC. 480 00:52:13,690 --> 00:52:20,260 And in the course of using this tool, what do members of international society do to this institution? 481 00:52:20,590 --> 00:52:25,299 Now, some of you may think maybe that's exactly what the U.S. wants to do, is to de-legitimize it, 482 00:52:25,300 --> 00:52:31,540 but it does raise the question of having that broad picture of the ICC as an institution and what that might mean. 483 00:52:32,170 --> 00:52:41,170 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. 484 00:52:41,170 --> 00:52:44,830 But I think that one interesting leitmotif has emerged across the UN, 485 00:52:45,190 --> 00:52:51,999 which is that the ICC and its emergence presents such a tectonic shift in the international normative order that 486 00:52:52,000 --> 00:52:59,319 closely intertwined with the task of actually assessing the ICC is the task to rethinking our categories of success, 487 00:52:59,320 --> 00:53:06,250 effectiveness, adequacy and the categories across the three disciplines represented in order to actually have 488 00:53:06,250 --> 00:53:11,140 that discussion properly about what we expect the ICC and how it has done over the last ten years. 489 00:53:11,620 --> 00:53:13,480 With that, I'd like to open for discussion.