The normative framework and its implications

This study has so far argued that the engagement of the Court is to a significant extent founded upon an expressed moral imperative, and provides an

overarching, binding framework within which other interventions must henceforth take place. Peace deals can no longer provide impunity, and international engagement must be framed by the requirements of international criminal law enforcement. The possibility that the ICC’s legal approach to a case may have consequences aside from the case itself, and that these effects may be outside the remit of the Court and beyond the legal domain, has been acknowledged.

3.1.3a A normative process

The Court also brings normative means as well as ends. Investigation, issuance of warrants, arrest, trial and retributive punishment are prescribed. Only limited variations in this process are permitted, at the discretion of the Prosecutor (Ocampo 2006b: 5). It is anticipated that this particular approach to ending impunity is almost as universally relevant as the desirability of ending impunity itself.

99

It may be argued that this rather linear strategy is likely to be more effective in some circumstances than in others. If independent analysis identifies

circumstances where retributive justice processes are likely to promote the restoration of peace, security and justice more broadly, that may strengthen the case of the ICC’s normative project. Analysis that indicates that such

processes are unlikely to be effective, for example where retributive justice efforts have already stoked violence, will raise difficult issues. At stake may be the immediate interests of communities affected, or the longer-term prospects for security and good governance. A third possibility is that the Court’s

interventionist mandate may adversely impact the strategic interests of a powerful state. ICC interventions may be particularly controversial in contexts of extreme and widespread violence. In any event, the normative process of the application of ICC warrants is intended to be universally appropriate. 3.1.3b A shift from consequentialism

This discussion underlines the key issue of consequences, introduced in section 1.2.2. In addition to its universal remit, ICC engagement also signals a

departure from consequentialist considerations. In relation to domestic cases, the application of legal process with the prioritisation of deontological process that that entails, is familiar. Notwithstanding the ameliorative influences that jury trials, non-mandatory sentencing tariffs, or pleas of mitigation may offer in terms of allowing some flexibility to take circumstances and consequences into account within the criminal justice system, the introduction of the Court that projects ICL into new contexts represents a markedly stronger emphasis upon deontological ideas of justice. In volatile environments, particularly those where the outcomes of action or inaction may be extreme, the motivation for

international interventions has often related to political interests, ideological conviction or (most commonly in relation to justice) consequentialist concerns for the outcome. Those seeking to advance justice have, at least in theory, considered the likely consequences of their interventions, and engaged with others to inform their activities through an understanding of local context. Often agencies have, as a minimum, aspired to adapt their programmes for different

100

contexts to achieve particular results. This move towards greater contextual understanding and more locally informed programming has been a central part of the development and humanitarian intervention discourses for some decades (Chambers 1983; Chambers 1997; Anderson 1999; Evans 2009; Schiff 2012). Now under the aegis of ICC warrants, such actors can still carry out these functions but only so far as they fall within the paradigm of the imposition of international criminal justice. ICC actions against individual perpetrators set parameters for other activities, shape the context, and mark a significant shift to deontological engagement. Now, significantly, the framework within which all must now work is not context-specific but normative. It is applied not in a manner based on its likely consequences, but upon the application of dispassionate legal considerations, grounded in statute and the impartial application of its process. Long-term considerations of the consequence of its activities fall beyond the case-specific circumstances and the Prosecutorial remit. For these reasons the intervention of the Court is likely to provoke some debate, and while it may not within its own processes analyse the

consequences of its warrants, it is desirable and even essential that others should do so.

3.1.3c A depoliticised focus on criminal acts over systemic justice issues The Court’s anticipated engagement in conflict scenarios and in unstable

regions also carries with it the imperative to address identifiable acts defined as crimes as a priority over structural issues, setting limits within which the latter may be tackled. The Prosecutor is not empowered to consider systemic injustice as such, except when it can be shown to constitute the gravest international crimes, and even then only when individual(s) might be held to account (Rome Statute of the International Criminal Court 1998: Article 25). The occurrence of political and economic marginalisation and multiple other forms of denial of human rights are less likely to come to the attention of the Court than conspicuous events such as atrocities, yet these structural issues may be significant contributors or fundamental to the dynamics for conflict. Tried by the SCSL, the case of Charles Taylor is pertinent in this regard. His

101

undoubted crimes were committed in a political context, and the frame that was brought through his arrest to resolve those issues was a narrow one (Harris and Lappin 2015). More generally, the Court’s framing of an overarching paradigm for international interventions in volatile scenarios shifts the international focus away from systemic concerns by focusing on the culpability of individuals. This focus springs from the ICC’s criminal justice remit and the gravity of the crimes with which it is concerned, whether or not they are relevant to resolving the underlying conflict dynamic. As Nouwen and Werner observe, such a shift in approach has considerable political implications, which are only strengthened by claims of legalism’s political neutrality (2010).8 It follows from this that, implicit in the Court’s focus on the crimes of individuals and an overarching remit that curbs other justice approaches, is an assumption that situations of injustice will be addressed through action against individuals; that trials will impact positively upon society, and not just the individual concerned. The Court’s early cases provide an opportunity to test this assumption.

Equally, the ways in which institutions confront injustice are likely to affect the ways in which they define it. Measures that culminate in the arrest, trial and conviction of a perpetrator of international crimes may be seen to have brought justice, particularly by those with a professional focus on legal issues. In the same context, from the perspective of campaigners against inequality for example, in relation to access to healthcare or education, and political or

economic rights, injustice may still prevail. The Court is of course not mandated to consider these other justice issues, so they fall outside not only its remit but also its notice. The specificity of the Court’s criminal justice approach means that its furtherance may obscure broader justice issues, or even be pursued at their expense. While the framework imposed by ICC engagement may affect those working on any aspect of justice, the justice remit possessed by the Court

8 _{The focus on individual crimes over systemic issues is a political act in itself. As}

Anatole France observed in 1894 ‘The law in its majestic equality forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread’ France, A. (1894) Le lys rouge. (2015) Paris: CreateSpace Independent Publishing Platform.

102

is specifically legal. For this reason the ICC should not be seen as delivering justice, but rather applying ICL.

3.1.3d Defining the ‘interests of justice’

If the ICC delivers justice only or largely in terms of ICL, then the Prosecutor’s responsibility to consider justice more broadly might well place him in a difficult position. The ‘interests of justice’ are referred to a number of times in the Statute and related documents. As explained in section 2.2.3, according to Article 53, the Prosecutor must determine whether or not an investigation would be ‘in the interests of justice’. Should the Prosecutor not wish to proceed with an investigation, the Pre-trial Chamber must also determine whether this withdrawal would be ‘in the interests of justice’ (ICC 2002; Ocampo 2007b; Schabas 2011: 254-255).

However, the ‘interests of justice’ have not been defined in the Statute or Rules of Procedure and Evidence. It was initially unclear whether ‘justice’ in this context meant a broad understanding relating to the ‘peace, security and

wellbeing of the world’ or a narrower legal definition. It may be that the drafters of the Statute assumed the two issues to be intimately associated. It may even be that they also considered the interests of the Court itself to be closely

associated with both interpretations. Could a determination that might cause damage to the Court, for example the decision to withdraw an arrest warrant, be in the interests of (international criminal) justice? Clearly in the context of the civil enforcement of just laws there may be a close relationship between justice and the application of criminal law; in volatile environments where pursuit of criminal justice enforcement may itself be violent, and could profoundly affect the course of a conflict or of international approaches to dealing with violence on a regional level, the relationship between legal enforcement and other aspects of justice is more complex. In such a circumstance it becomes

important to distinguish whether the Court operates in the interest of justice in a broad or narrow legal sense.

103

Guided by the Statute, Prosecutors have struggled with this issue. In the Prosecutorial Strategy 2006 the former Prosecutor states ‘The Office has the obligation to assess the interests of victims as part of its determination of the interests of justice under Article 53 and Rule 48’ (Rome Statute of the

International Criminal Court 1998; ICC 2002; Ocampo 2006b: 8). At a first

reading this is reassuring—victims’ interests will be taken into account. Yet the realities of the new contexts for ICL must be considered. For example, if all the children of a community were abducted, the whole community would doubtless consider itself a victim of such a crime. And if such practices were widespread they would constitute an international crime. The Court is intended to address mass crimes such as this. Yet neither the Statute nor the Prosecutors

addresses the reality that whole communities may be the victims of international crimes. The same paper states:

The concept of the interests of justice established in the Statute, while necessarily broader than criminal justice in a narrow sense, must be interpreted in accordance with the objects and purposes of the Statute. Hence, it should not be conceived of so broadly as to embrace all issues related to peace and security […] a decision not to proceed on the basis of the interests of justice should be understood as a course of last resort. (Ocampo 2006b: 6)

This passage is less reassuring. The interests of victims can clearly not be upheld while matters relating to their security are subordinated to larger concerns. Later, there was an attempt to clarify this issue, however it further emphasised the narrow approach to considerations of justice and victimhood:

It would be exceptional for a Prosecutor to decide that an investigation is not in the interest of justice, and the victims. The ‘interests of justice’ must of course not be confused with the interests of peace and security, which falls within the mandate of other institutions, such as the UN Security Council. (Ocampo 2010a: 6)

104

Security considerations are thus the concern of other institutions, while the Court will prioritise its justice process. How the interests of victims (whether they are individuals or communities) may be prioritised, while their security is not, is an open question. The second Chief Prosecutor revisited the issue:

The Prosecutor is not required to establish that an investigation serves the interests of justice. Rather, the Office will proceed unless there are specific circumstances which provide substantial reasons to believe that the interests of justice are not served by an investigation at that time […]

the concept of the interests of justice should not be perceived to embrace all issues relating to peace and security. In particular, the interests of justice provision should not be considered a conflict management tool […]

there is a strong presumption that investigations and prosecutions will be in the interests of justice, and therefore a decision not to proceed on the grounds of the interests of justice would be highly exceptional. (ICC 2013d: 16-17)

This statement is more decisive, and still less reassuring for advocates of human rights of victim communities. The first point rolls back the ‘do no harm’ agenda, by indicating that international intervention in the form of ICC warrants will be assumed to be a good thing, and placing the onus on others to establish that it is not (Anderson 1999). The second confirms that an intervention might be deemed in the interest of justice, even if it negatively affects conflict

management efforts, likely to be associated with the security of a community. Others, such as the UNSC, may consider the security issue, but they are not in any event empowered to interfere with the Court’s judicial process to prevent it from intervening (Vinjamuri 2010). The last shows circularity—because of the strong presumption in favour of prosecution, prosecutions will normally proceed. Despite this, it is consistent with previous statements: a narrow interpretation of justice will be used in determining the

105

Court’s actions—one that sets aside considerations of peace and security. This position rests alongside an assumption that this will be in the interest of victims, even though issues of their security are not considered. This is the strategy designed for contexts where mass atrocities have already been committed, which are the Court’s focus. Though it is not properly discussed by the Statute or the Prosecutor, there continues to be an apparent perception that

international crimes will have only isolated and individual victims. There is, in other words, a strong emphasis on enforcing criminal law based on a

presumption that it will be broadly beneficent, regardless of circumstances. Elsewhere it is claimed that the interests of peace and justice are intimately related, and that the Court serves the interests of peace by prioritising the interests of (international criminal) justice. These goals are not necessarily incompatible, but they do rest upon a central assumption: the Prosecutor need not allow broader considerations of peace and security to impede prosecutorial process, because consideration of peace and security will be advanced through the singular pursuit of international criminal justice. This supposition is now being tested in the violent contexts of ICC engagement (Ocampo 2007b: 8; Roth 2010; Tolbert and Wierda 2010).

If the interests of justice are rather narrowly drawn, so are the identification and interests of the victims. A prosecutorial strategy document identifies the

‘interest of victims’ as one of its four fundamental principles. This consideration is meant to commence before an investigation is launched, so in this respect it could in theory lead to the ICC staying its hand in particular cases. However, the provision rests only upon Articles 15 and 53 of the Statute (where the

interest of victims appear to be congruent with prosecution), as an aspect of the interests of justice. As justice is narrowly defined to exclude the security of communities, and the Statute surprisingly appears to anticipate victims as if they were isolated individuals (as for a municipal court), such consideration seems very unlikely to impede the prosecutorial process (Ocampo 2010b: 6-7). The likelihood that ‘victims’ of these enormous crimes are not isolated, but are whole communities, is not made explicit nor even identified. This failure of the

106

Statute, interpreted by prosecutors with a legalist perspective, leaves their security beyond the Court’s remit to consider.