Sustainable Exit and Legacy of the International Criminal Court

Against the backdrop of closure of the ad hoc international criminal tribunals the theme of completion and legacy has become increasingly topical. Legacy has become a buzzword and the notion that international criminal tribunals should leave a lasting impact beyond prosecuting a select number of individuals is omnipresent. To date, however, there has been remarkably little discussion of legacy in relation to the International Criminal Court (ICC). After its tenth anniversary it is timely to engage in much needed critical analysis to theoretically accompany the burgeoning debate of the Court’s impact and effects.

Talk about legacy often arises in a valedictory or commemorative setting when reflecting upon accomplishments and the meaning of being. We have witnessed what might be called the ‘legacy turn’ (see Dittrich 2014). Indeed, legacy building has become an institutionalised endeavour at the tribunals and legacy assessments abound. This does not seem coincidental as the International Criminal Tribunals for the former Yugoslavia and for Rwanda (ICTY and ICTR) are in the throes of their respective completion strategies, already having transitioned to what has become known as ‘residual mechanisms’. A broad concept of legacy which may include contributions to law, justice, peace and reconciliation stands in contrast to a more traditional notion solely covering the legal or judicial arena. Thus, questions of purpose and interpretation of the legal, political, social, economic or cultural components of international tribunals take centre stage. The concept of legacy seems to be engulfed in a paradoxical situation: it is understudied, yet rhetorically overused.

The construction of legacies is an inherently social process. It is argued that the common concept of legacy in the singular is too simplistic, static and one-dimensional which neglects the dynamics of multiple legacies. A focus on legacy actors has been markedly absent to date. The presented legacy actor model aims to correct this oversight by identifying five main actors. Political and social dynamics involved in the creation, contestation, and control of legacies need to take centre stage. The ICC is a central, albeit only one actor, alongside states, organisations, NGOs and individuals. The ICC’s significance will depend as much on its successful performance as on the perception and construction of its success. Put simply, legacy means different things to different actors at different times. International criminal tribunals do not operate in a political vacuum; thus struggles over the power of interpretation and editorial control are inevitable.

Ultimately, constructions of legacies are both a reflection and a sideshow of broader debates about the Court’s raison d’être, international involvement in conflict and post-conflict settings and the meanings of justice. It is argued that the ‘legacy turn’ in the realm of the ad hoc tribunals is of great relevance for the ICC. Adopting a legacy lens for the ICC sheds new light on the interplay of permanent and finite institutional dynamics, long-term planning and ad-hocism. In light of the contours of the new framework sketched legacy constructions have already accompanied the ICC’s development to date, starting before the establishment of the Court and proceeding after any possible exit strategy is implemented in the future.

For any new institution the focus is on beginnings and not on endings. However, recognising that despite being created as a permanent body the ICC is faced with finite elements and proceedings, it is critical how certain moments of completion are addressed and managed. Hence, anticipating and framing the ‘End’, however big or small, is paramount, not only for the ad hoc tribunals but also for a permanent court. It is argued that the scenario of unlimited ICC operations in time and space would defy the purpose of the Court and present a road towards failure in several ways. The timing, modalities and sustainability of ICC engagement and, ultimately, disengagement or exit remain under-examined.

The legacies of the ICC are under construction in light of ongoing debates on the impact and the measurement of success and effectiveness of tribunals. Indeed, despite its permanent nature the Court needs to carefully consider the issue of completion and exit not in terms of overall institutional demise but in terms of various finite elements, for instance meaningfully closing cases or terminating operations in specific situations. Institutional dialogue with the ad hoc tribunals could be intensified in this regard given their first-hand experience in completion and legacy planning. However, notwithstanding even meticulous planning, the legacies will remain sites of construction and struggles over the Court’s meaning for the institution itself, a given situation, society and international criminal justice.

Short paper based on journal article: Dittrich, Viviane (2014). “Legacies of the International Criminal Court under Construction”, Security and Peace (S+F: Sicherheit und Frieden), Vol. 31, No. 4, pp. 197-204.

Photo: A wide view of the Security Council meeting on the work of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY), 05 June 2014 (UN Photo/Paulo Filgueiras)