1. Background
Over the past decade, the International Criminal Court (ICC) has produced diverse political and social effects in the countries and communities where it intervenes, either directly through investigations and trials or indirectly through the threat of investigations (Democratic Republic of Congo, Uganda, Ivory Coast, Kenya, Libya, Colombia). The self-referrals from the Democratic Republic of Congo, Uganda, the Central African Republic, and the acceptance of jurisdiction by the Ivory Coast, provide vivid testimony that some domestic governments have been eager to devolve responsibilities to the ICC. At the same time, ICC intervention has polarized domestic debates in contexts such as Sudan, Colombia or Kenya where it interfered with electoral politics or the interests of domestic political actors. The main question for the ICC is how to address such considerations.
The ICC has been praised as an illustration of the ‘obligation-related side’ of sovereignty’, i.e. the claim that domestic sovereignty is answerable internally and externally or even subject to jurisdictional substitution. But situations such as Kenya show that the ICC system is still at the beginning of a new era of interaction between domestic and international justice. Since its inception, the ICC has used consent of domestic jurisdictions as a deliberate instrument to facilitate its operation and increase its impact. The Court has relied on concepts, such as ‘leadership accountability’, ‘targeted investigations’, the ‘shadow of the law’ (i.e., the theory that one ruling in the international setting may resolve a multiplicity of cases at the domestic level), and ‘victim participation’ to give it legitimacy and to justify its operation and effects.
However, while these concepts seek to put the ICC’s performance in context (e.g., in relation to institutional capacity and expectation-management), they have failed to bridge gaps to domestic societies and dilemmas of perception. Criticisms of the Court, such as its predominant focus on Africa or, relatedly, its neo-imperial nature were too easily discarded by quantitative justifications, such as gravity calculations (i.e., number of victims) or reliance on formal notions of consent. While seeking to remedy harm and suffering, ICC interventions have constructed new constituencies of ‘victimhood’. Although it is partly misleading to qualify the ICC as an instrument of ‘transitional justice’, it might benefit from some transitional justice wisdoms, including devising context-specific approaches or consulting affected populations.
Based on country-specific experiences and population based-surveys, it has been argued that the impact and perception of specific justice mechanisms is shaped by three factors: (i) their ‘input’, i.e. ‘procedural and substantive elements’ underlining the design of norms and institutions (e.g., inclusiveness, compatibility with universal and domestic values), their ‘output’, i.e. visible, fair and objective outcome (e.g., justice that ‘is seen to be done’), and (iii) public confidence and acceptance by the community affected, as demonstrated by ongoing discourse, participation or domestic internalization.
While elements 1 and 2 have been relatively well researched in relation to the ICC, the third factor has received relatively limited attention. ICC interventions remain contested because they are removed from broader socio-political concerns that are at the heart of societal priorities in conflict and post-conflict settings.
One of the crucial challenges is to rethink justice from a bottom-up or local perspective that is gradually gaining ground in the field of transitional justice. The process of internalizing international concepts in the domestic realm, and most fundamentally, the translation of justice into local concepts, language or culture remain underdeveloped. There is need for a better nexus between three core dimensions in justice strategies: institutional response, translation, and domestic reception.
2. Relationship between goals and effects
Many of the challenges of international justice are linked to uncertainty about the actual goals of the Court. Although there are some encouraging signs, there are still many unknowns. ICC engagement has undoubtedly a strong impact in the media, and in some of the conflict situations (Kenya, Colombia). But in many instances, the action of the Court has remained divisive in light of other or conflicting needs and interests of the victims of crime (Uganda), or marginal in the context of a broader process of transition (e.g., Libya, Afghanistan).
In line with findings of some studies in human rights research, there is some support for the claim that the development of the ICC as a ‘system of justice’ enhances the prospects for greater application and adherence to law (Colombia, Uganda). But it remains difficult to provide ‘hard’ scientific grounding for prevention and deterrence on the ground (Afghanistan), and actual evidence on the interplay between ICC proceedings and conflict statistics remains largely anecdotal. Hard questions remain in need of specification:
- To what extent is rational-choice analysis and threat of ICC action a factor in crisis situations?
- How does the ICC affect cost-benefit analysis of perpetrators, e.g. by expanding the expected costs of repression, loss of legitimacy (e.g. damage to national/international reputation) or by limiting the space for political and social support?
- To what extent does investigation and prosecution serve as ‘carrots’ and ‘sticks’ with respect to recalcitrant States (e.g., Sudan)?
The way in which the triggering mechanism influences ICC action is in flux. Curiously, Security Council referrals, which enjoy formal backing under Chapter VII of the UN Charter, have resulted in very few tangible and controversial results from the perspective of accountability. There are significant voices cautioning against an artificial alignment of international justice and human security and the use of state consent as a tool to silence political opposition (e.g., lawfare).
Further ambiguities arise in the context of capacity-building and conflict resolution. In most contexts, international justice is part and parcel of a longer-term peace-building process. In some contexts (e.g., Uganda, Kenya, Colombia), ICC engagement has had a ‘catalytic’ effect on domestic law reform (e.g., implementing legislation) and institution-building. But other examples, such as Afghanistan or Libya illustrate that it is far less clear to what extent international courts have the actual capacity to constrain or resolve ongoing conflict.
3. The relationship between input, output and domestic reception
There is a need to reduce frictions between international and local interests. This might require fresh thinking in a number of areas.
3.1. Goals and impact of intervention
The choice of institutional models and investment in justice remains dictated by ‘faith-based’, rather than ‘fact-based’ considerations. It is necessary go beyond mere technical analysis, in order to understand the Court’s diverse impacts. Effectiveness cannot only be understood in quantitative terms (e.g., number and length of ICC proceedings, costs, perception of victims etc). As anthropologists rightly claim, not all of its effects can be measured or quantified. On the contrary, some of its most important contributions may lie beyond mere rationalization or remain unreported. Successes and failures must be viewed in the broader context of goals associated with ICC justice, including prevention, deterrence, retribution, fact-finding, or combat of ‘impunity’, more generally.
Further work is necessary to identify indicators for goals, and to view them in context with each other. For instance, ICC intervention may be a partial or unintended success in relation to one factor (e.g., framing domestic justice responses), and a clear failure in relation to others (e.g., retribution in relation to the individual case). Certain impacts (deterrence, incapacitation, ‘rule of law’) can only be assessed on the basis of longer-term effects. Other effects cannot be assessed separately from other influences (e.g., deterrence, incapacitation), or result from a combination of factors. They are heavily influenced by contextual factors. They include (i) the timing of ICC intervention, i.e., in conflict or after conflict; (ii) the level of State support; (iii) the length of ICC engagement and (iv) ICC capacity/resources.
Drafters of the Statute have placed considerable faith in the assumption that ICC justice would reduce impunity through certain coercive effects, i.e. through punishment and enforcement. This vision may need to be partially revised. It appears that some of the most important contributions of the ICC have been on a broader normative level, i.e. through social alarm, demonstration effect, impact on discourse etc., rather than actual enforcement. It might be over-ambitious to claim that the ICC may foster reconciliation or political stabilization through justice intervention. The OTP has largely outsourced agendas of prevention to States. Virtues of ICC intervention may partly lie in spin-over-effects, such as the transformation of human rights approaches or practices in International Humanitarian Law, rather than immediate societal reform. These effects are less traceable in terms of an ‘input’/’output’ calculation.
There is a deep paradox in relation to ICC intervention. In one form or the other, the ICC is part and parcel of justice discourse in almost any conflict situation. Where the ICC has become active, it has inevitably caused frictions and new tensions. It is righty cautioned that ICC intervention should not marginalise or stifle other creative ways of addressing mass atrocity situations. But there is also a flipside. The picture shifts in cases inaction. Where ICC scrutiny is not present (or not active enough), its absence is partly viewed as a loss or even a failure (e.g., Iraq, Syria, North Korea), and has triggered news forms of mobilization of action (e.g., by the UN General Assembly, Commissions of Inquiry, NGOs etc). International reactions move typically between these two extremes, i.e. portrayal of ICC action as salvation or its branding as counterproductive’ interference. This is unhelpful. One of the main challenges is not to buy too easily into these dichotomies and to develop the shades of grey.
3.2. Localization v. de-localization
The ICC is often criticized for its detachment from the actual site of conflict. It is tempting to call for greater localization of international justice. The ICC has taken several initiatives in this regard, ranging from outreach, the establishment of field offices, recruitment of locals to cooperation, partnership with local NGOs and actors to the consideration of in situ proceedings. These moves seek to connect the ICC better to local realities. But they suffer from a fundamental dilemma. They are often perceived as a one-way street or as part of an external agenda, driven by the interests of the Court, international NGOs or specific States and their constituencies. ICC action does not only protect individuals from abuses. It creates narratives and new identities through judicial action. From the outside, the Court is easily perceived as an entity that serves as an instrument of foreign power or that creates categories of evil or notions of victimhood that may not be representative of the underlying conflict.
This risk is partly rooted in a discrepancy between ‘input’ and ‘output’. As in the context of international human rights regimes, the effects of the ICC may be partly understood through a lens of delocalization and social reconstruction of the domestic. In the ICC context, this process occurs incrementally, through multiple small steps. Typically, domestic conflict and violence are branded in specific language (e.g., as atrocity crime labels) and associated with specific patterns of victimization. This is followed by (i) the framing of the situation that forms the subject of inquiry (preliminary examination), (ii) the initiation of international investigation and prosecutions, (iii) the shaping and identification of the identity of the ‘case’ and (iv) recognition of specific victims through the regime of victim participation. ICC procedures disaggregate social reality, and then reconstruct it, based on evidence available. Facts and circumstances are translated into judicial vocabulary and judicial processes.
Each of these steps (dislocation, disaggregation, translation and reconstruction) involves a certain degree of delocalization. Only few elements are subject to direct domestic input. Local interests are typically assessed in the abstract (e.g., interests of victims’), and with reference to the ICC case. The pursuit of justice is then formally presented as a choice of forum, under the principle of complementarity: Is the ICC or the domestic system better suited to proceed, taken into account investigations and prosecutions? At this stage, the choice is not fully a domestic choice anymore, since essential elements have been pre-determined through ICC action. This methodology, and the process of dislocation, disaggregation, translation and reconstruction cause discontents or suspicion, if they are not sufficiently grounded and reconnected to the domestic realm.
A certain degree of delocalization is of course unavoidable and necessary as part of the international justice process. But addressing its negative or unintended side-effects requires a deeper engagement with locality in the early part of proceedings, e.g., as part of preliminary examination analysis, investigation and the framing of the case, rather than merely at trial (e.g., proposals of in situ hearings, video-link etc.) or in the reparation phase, as currently done by the Court. Initiatives to re-connect to the ‘local’ through the increase of field presences or outreach, are likely to have limited impact, once the ICC case has been detached too far from local social fabrics.
Ultimately, the ICC may legitimately override domestic preferences, or present alternative narratives or choices in specific contexts. But such action should be adequately reasoned and explained. Its acceptance may depend on a number of factors: the way in which it was formed and conveyed; its grounding in knowledge and expertise, including local/regional expertise; and its verification and openness to challenge.
3.3. Catalytic effect
One of the theories to defend ICC intervention has been the nexus between its ‘output’ and its longer-term acceptance by the domestic constituency, i.e. its catalyst effect on affected communities. In legal scholarship, complementarity has been traditionally associated with the idea of catalyst for compliance. This vision has been applied in some contexts. ICC intervention has triggered the enactment of domestic implementing legislation. It has encouraged the direct application of statutory principles by domestic military courts (DRC) or constitutional courts (Central African Republic) or the creation of specialized crime units (Uganda).
But in practice, the effects of complementarity have been far more complex and diverse, reaching beyond cooperation and compliance. ICC interventions have produced multiple unforeseen effects. Some of merits of the interplay between ICC action and domestic responses have been called into question. ICC action has prompted individual and case-related action and response games with domestic jurisdictions that have done little to improve overall accountability. Domestic efforts have resulted in replication of ICC justice models, rather than adaptation or internalization.
This logic is fueled by the ‘mirror’ image that has been used in ICC jurisprudence (e.g., Gaddafi, Al-Senussi) as a benchmark of the admissibility assessment. Requiring States to copy ICC practice is a double-edged sword. It encourages short-term justice response at the domestic level, and is likely to create artificial outcomes that lack sustainability. The ‘mirror’ image tends to silence legitimate discrepancies between a Hague-driven and domestic or local visions of justice. Broader goals of the Statute, such as strengthening domestic investigation and prosecution and ‘guaranteeing lasting respect’ for and enforcement of international justice might provide incentive to pursue a less ICC-centric vision of complementarity.
4. Some thoughts on the way ahead
There is a need to re-think some of the existing strategies. First, it is important to recognize that political facts and considerations are a reality and an inherent, and sometimes legitimate part of ICC activities, in particular, in the context of prosecutorial action. They are necessary to make crucial determinations, i.e. assessment of the context of criminality in the situation, timing and choices of arrest, charging strategy or sequencing of cases. Better analysis, understanding and communication of such factors is crucial to ensure greater care in burden-sharing with domestic institution and greater sensitivity to the empowering and disempowering effects of ICC intervention.
Second, there is a need to take into account context and to understand local impact better, in situations where the ICC intervenes. Localization is a process which goes beyond political elites and requires time. There is a need to put in place structures and forms of action that allow two-way dialogue, reception, translation and possible internalization of accountability strategies. Otherwise, ICC justice may reproduce narratives that remain detached from local constituencies or leave superficial footprints in situation countries. Viewing ICC approaches in context is not only a procedural necessity in specific instances (e.g., victim participation) but an important control throughout proceedings. It cuts across all Court organs.
Third, the relationship between restorative justice and development strategies requires further attention. It is unhelpful to adopt a functionalist view under which one is treated as an instrument of the other. The ICC is not a development agent, nor are development actors necessarily best agents for accountability. The two fields may conflict with each other. Making development assistance contingent on ICC related-rule of law reform may be counterproductive, since it may create dependencies or discrepancies in relation to needs of protection or other more pressing socio-economic needs (health, education, access to resources etc). Conversely, promoting justice through instruments of development may have significant downsides. As evidenced in the transitional justice context, awarding reparation through development programmes may leave victims with a feeling that their harm is not sufficiently recognized. More work is required to identify how the mutual synergies between the two may be used most effectively to the benefit of both fields.
Photo: A traditional community leader (right) of the Misseriya tribe talks with women from Ngok Dinka tribe advocating the need for peaceful co-existence between Misseriya and their Dinka neighbours on the route they share in search of pasture and water, 16 November 2006 (UN Photo/Fred Noy)
