This literature paints a mixed picture of the ICC’s performance and has raised many controversies relating to the practice of both the Court itself and some of its primary stakeholders. Some of the discussions and observations highlighted in this Chapter relate directly to the research themes of this thesis. For example, all of the controversies raised concern matters relating to practice, not shortcomings with the procedural or purposive framework of the ICC. Moreover, the discussions on the ICC’s performance were particularly useful in highlighting the main stakeholders within the ICC regime, namely: the OTP, Chief Prosecutor, states parties, and the UNSC. It is the practice of these stakeholders which will be explored further in Chapter Seven. As has been shown by the analysis in this Chapter, theoretical conceptions of justice can not only be used to advance the criticisms levelled
65 against the ICC but also offer a more nuanced understanding of the issues they pose with regards to the Court’s ability to effectively pursue and fulfil its mandate. Finally, the variety of opinions on similar topics suggest that the literature on the ICC is heavily polarised (see Wegner, 2015; Ali, 2014; Dersso, 2009; Simpson, 2008; Mégret, 2001),96 insofar as a majority
of discussions are either supportive or opposed to the Court and thus either defend or criticise it based on these initial underlying positions.97 This is an area that this thesis would like to
address by showing that the ICC need not be viewed in such a binary manner where analytical observations are shaped by whether or not a commentator supports or opposes the Court’s existence. The following Chapters in this thesis seek to address some of these gaps and shortcomings in the literature and further explore some of the core themes identified. It will do this by first building a normative framework based on justice theory before applying it to data collected from a variety of sources.
96 Recalling the discussion from Section 1.3, it should be noted that polarised opinions were present from the
ICC’s outset.
97 The polarisation of the ICC literature perhaps is to be expected, given the heavy polarisation of opinions which
surround the use of justice as a means for aiding post-conflict resolution and reconstruction (see Ainley, Friedman and Mahony, 2015; Clark, 2012; Clark, 2011).
66
Chapter Three
Theories and Understandings of Justice
3.1 IntroductionThe final paragraph of the Rome Statute’s Preamble lists a goal of the International Criminal Court (ICC) as being to: “guarantee lasting respect for and the enforcement of international justice” (see ICC, 2011b: 1). Now, whether it be former United Nations (UN) Secretary General Kofi Annan’s early “promise of universal justice” (see 1997), current Chief Prosecutor Fatou Bensouda’s call “deliver justice” (see 2016: 8), or the plethora of academic literature that features the term justice in the title (see Ali, 2014; Bosco, 2014; Hoile, 2014a; 2014b; Nouwen and Werner, 2010; Clarke, 2009), pursuing justice and acting justly should perhaps be considered as two of the Court’s overarching goals. But, this claim poses two broader questions: what is justice and what does it mean to be acting justly? The purpose of this Chapter is to offer answers to these questions through a review of the theoretical literature on the concept of justice. This discussion will then be used to build a normative framework upon which the compatibility of the ICC’s purposes, procedures and stakeholder practices can be analysed.
3.1.1 What is Justice?
A core feature of the concept of justice is that it is multi-faceted and, as will be shown below, relates to many referents. This said, this thesis has been able to identify two general features of justice: serving as a check on neo-liberal conceptions of politics as self-interest and defining notions of right and wrong. Both of these general features have deep philosophical roots and feature heavily in the theoretical literature surrounding the concept. For instance, in his Nicomachean Ethics, Aristotle defined “universal justice” as righteous behaviour and
67 suggested that what separates justice from other virtues is that it involves helping or considering others: “justice, alone of the virtues, is thought to be ‘another’s good’, because it is related to another; for it does what is advantageous to another, either ruler or a co-partner” (see 350BCE:2009: 80-82). Similarly, in his essay Utilitarianism, John Stuart Mill contested that “justice is the name for certain classes of moral rules, which concern the essentials of human well-being” because these rules help societies to identify right and wrong actions (see 2008: 176-201).
Furthermore, these generalities continue to appear in more recent98 theoretical
discussions on justice. Walter Kaufman, in his article The Origin of Justice, succinctly linked the two aforementioned features when he argued that: “justice is held to have developed out of resentment against wrongs done to others with whom we sympathize” (1969: 230).99
Likewise, the entire basis of John Rawls’ seminal work, A Theory of Justice, contends that when underpinned by justice social institutions reflect the right way to organise a society and make decisions so that all actions provide mutual benefits for all members, but particularly the weakest and most vulnerable (see Rawls, 1999b; 1971).100 As such, it can be suggested
that at the most general level, justice refers to identifying and defining notions of right and wrong, and overcoming conceptions of political self-interest for the common good of a society.
98 Recent here refers to the last large wave of academic discussions on justice during the 1960s, 70s and 80s (see
Scanlon, 1986; 1982; 1973; Rawls, 1985; 1971; 1963; Nozick, 1981; 1974; Beitz, 1979a; Kamenka, 1979; Lucas, 1972; Kelsen, 1971; Kaufmann, 1969; Ginsberg, 1965) because the mainstream academic focus, with the exception of Amartya Sen (see 2009; 2006; 1990), appears to have shifted away from the concept.
99 It could be argued that this idea about sympathising with others who have been wronged is a backbone of the
international criminal justice regime.
100 John Rawls’ work was initially published in 1971 but from now on this thesis will use the revised edition
68 In the context of the ICC, these two general features of justice can be seen as central to the Court’s cause and functioning. At the most basic level, Kaufman’s abovementioned depiction of justice, sympathising with others who have been wronged, perhaps forms the backbone of the international criminal justice regime. This is because the regime of international criminal justice underpinned by the ICC is built on the belief that impunity for international crimes should not be tolerated and that the victims of, and communities affected by, international crimes should not be left without a sense of justice for the wrongs committed against them. Moreover, international criminal law, as applied by the ICC and codified within the Rome Statute, is heavily concerned with notions of right and wrong across many levels, from the substantive elements that define prohibited conduct to the procedural aspects which outline the correct way for this conduct to be investigated and prosecuted. Finally, the creation of the ICC was arguably driven by a belief that responses to international crimes should not be driven by political self-interest but instead by a desire to protect and uphold the rights of all peoples. Applying Rawls’ aforementioned thesis, in theory rather than serving the interests of political actors in positions of power, such as the great powers, their allies, or culpable governments, responses to international crimes and the search for international criminal justice should serve the interests of the weakest and most vulnerable members of international society, including direct victims, affected communities, and states that have been desolated by the actions of non-state actors.101
However, beyond these two generalities, understandings of justice are more difficult to identify, not least because there is no universally accepted definition of justice or a just action. The lack of a universal definition or understanding is a core feature of the literature
101 Payam Akhavan makes a compelling case that sometimes states may be the victims rather than the
69 surrounding justice. In Hedley Bull’s words, “justice is a term which can ultimately be given only some kind of private or subjective definition” (2002: 75). Likewise, Hans Kelsen identified justice as a “social phenomenon” which differs greatly “according to the nature of the society within which it arises” (1971: 7). Finally, Eugene Kamenka observed that: “the problem of justice cannot be resolved by recourse to the myth of a single, common underlying morality that we all share… [I]t is impossible to give a satisfactory grounding in logic to the conception of justice as more than a specific social tradition” (1979: 2). Thus, it can be argued that notions of justice are subjective and dependent on the context they appear in, the value structure of the society in question, and/or the philosophical opinions of the commentator analysing them. Therefore, it is important to acknowledge that the framework is author subjective and draws on a Rawlsian conception of justice.
The final issue with identifying justice in a general sense is that it relates to many different elements of societal actions and structures. Rawls argued that because many things can be said to be just or unjust, including laws, institutions, social arrangements, procedures, decisions, judgments, actions, attitudes and persons, thus it is important for analysts to identify and distinguish between the referents of justice on which they are focussing (see Rawls, 1999b: 6-10; 1958: 164-165). For this thesis, not all of the aforementioned referents of justice need to be analysed separately because they are not all relevant to the discussion and many of them that are can be discussed together. Instead, this Chapter will focus on the four core elements related to the ICC: institutions, procedures, decisions and actions. In order to do this, the Chapter will be divided into three sections. The first section will focus on the relationship between justice and institutions. The second section looks at the connection between justice and procedures, particularly how different procedural arrangements are categorised and how procedures can be measured as being just. Finally, the third section will
70 examine the different ways through which decisions and/or actions can be considered to be just.