The legitimacy crisis within international criminal justice and the importance of critical, reflexive learning

Jeff Handmaker*

*Corresponding author for this work

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Abstract

At a 2016 meeting of the American Society of International Law, Benvenisti and Nouwen (2016) explored whether the system of international criminal justice faced a “crisis of legitimacy.” Building on an earlier debate in the European Journal of International Law in 2010, Nouwen and Werner argued that the deeply held, albeit erroneous, claim by legal advocates and academics that law is impartial renders it “a strong tool in political struggles” (Nouwen and Werner, 2011b, p. 1164). The authors were responding to a critique of their initial contribution, which argued that, while one may seek to “mobilise the law” in the context of a (violent) conflict, “the structure of the law itself escapes the logic of the political” (Schotel, 2011, p. 1154). Is the system of international criminal justice truly in crisis? Is it even possible to escape the political character of the law? In their initial contribution, Nouwen and Werner argued that “(w)hile there is nothing wrong with attempts to protect the [International Criminal] Court from political interference, portraying it as fighting the political has a disadvantage: it blinds us to the politics of the ICC itself” (Nouwen and Werner, 2011a, p. 943). More specifically, they noted, international prosecutors have claimed to stand outside the realm of politics, while at the same time taking decisions that are profoundly political (ibid., p. 962). Concerns about the legitimacy of international criminal justice institutions have, indeed, particularly focused on the work of the International Criminal Court (ICC). The serious and entirely avoidable failure of the first ICC prosecutor to reveal exculpatory and confidential evidence to the defence counsel during its first trial against Thomas Lubanga, a former military commander in the Democratic Republic of Congo who was charged, and eventually convicted of recruiting child soldiers, nearly destroyed the prosecution’s case altogether (Katzman, 2009). It has also been argued that the ICC has fallen short in investigating and prosecuting gender-based crimes, for both normative and attitudinal reasons (Mouthaan, 2011). Internal challenges have also been noted, concerning “the scope of investigations and certain practices,” including the way in which charges are filed and confirmed, as well as - more fundamentally - the approach of the ICC in deferring to national jurisdictions (Amnesty International, 2012, p. 4). Even the then Vice-President of the Court, acknowledged (somewhat vaguely) that there have been challenges relating to the “internal functioning of the Court” (Kaur, 2011, p. 8). These internal weaknesses have been accompanied by a global campaign of de-legitimization led by the former US ambassador to the United Nations, John Bolton. In essence, the US campaign threatened to withdraw military and other assistance from countries that chose to ratify the Rome Statute establishing the ICC (Bolton, 2001). The initial vehemence of the Bush-Bolton era opposition to the Court by the United States gradually gave way to a cautiously supportive position in relation to referrals by the Security Council in the cases of Sudan and Libya (although statements from the Trump administration suggest a renewed, confrontational stance). Other, more recent, external challenges to the legitimacy of the ICC have come from African countries, which have accused the ICC of being biased against leaders on the continent. Consequently, several member states’ parties of the Rome Statute that established the ICC have indicated their desire to withdraw (Allison, 2016). Scholars, too, have questioned the legitimacy of the ICC, especially concerning the actions of the prosecutor, which have come under heavy fire as “steeped in controversy” and “self-defeating” (Danner, 2003; Orentlicher, 2003; Goldsmith, 2003). However, none of these critiques on the internal functioning of the ICC, or even the external legitimacy challenges, could readily be said to amount to a crisis; they can all be considered as “accidental” in the sense that they refer to causes that are “varied and overdetermined” and, in any event, are subject to “well-developed routines” established for managing such crises (Jessop, 2015, p. 247). By contrast, the indeterminate character of law, which has been readily observed by critical legal scholars such as Koskenniemi (2009), elaborating on his Apology to Utopia thesis, is an objective limitation of international law generally, from which the international criminal justice system has emerged. Nouwen and Werner’s argument reflects this critical reading of international law, which acknowledges the existence of deeper structural problems. Hence, as I argue in this chapter, the real crisis of legitimacy faced by the Court and, indeed, the international criminal justice is more generally, relates not so much to the existence of international legal norms and enforcement institutions as such, but to the crude and culturally essentialist way in which the ICC prosecutor, and the NGOs (non-governmental organizations) that support the Court, regard themselves, the perpetrators, and the victims/survivors of international crimes. The crisis, in other words, stems from how the Court itself, particularly in the discourse of the prosecutorial office, which is represented as a non-political administrator of justice in response to allegations of international crimes, is taking decisions that fail to consider the complex social, cultural and political contexts in which these crimes took place. The system of international criminal justice, including law and legal institutions, is profoundly political. Legal scholars frequently under-estimate the extent to which legal practice involves - indeed demands - systematic, strategic reflection. By the same token, then, the crisis of legitimacy facing international criminal justice is a “moment for reflection” (Jessop, 2015, p. 255). Like Nouwen and Werner, Harmen van der Wilt (2011) has acknowledged that, in responding to the many criticisms of universal jurisdiction for international crimes, and to the work of the International Criminal Court, it is helpful to analyse the work of international criminal justice in an inter-disciplinary way. Having set out the issues, the second part of this chapter presents a frame-work for analysing the liberal underpinnings of the international criminal justice system. Part three, drawing on Mutua’s (2001) critical assessment of the human rights corpus, focuses on how efforts to invoke the international legal system in order to manage international criminal prosecutions have proved problematic. Part four explores the implications of a strategic approach to legal advocacy for reflexive (legal) learning and the management of crises through international criminal justice mechanisms, focusing on the dimensions of the legitimacy crisis generated by the international legal system itself, which Koskenniemi (2009, p. 12) defines as “managerialism”. The concluding part comments on the extent to which strategic legal advocacy, a critical approach to legal interpretation and an approach of critical, reflexive learning present opportunities for lawyers to engage explicitly with the politics of international law in a way that creates opportunities for “learning from” the legitimacy crisis (Jessop, 2015, p. 257) and thereby enhances, rather than undermines the role of law as a mediator of crisis. My analysis relies on various sources of data. They include the comprehensive portrayal of the international criminal justice system and, especially numerous statements made by the ICC prosecutor in the acclaimed documentary film The Reckoning (2003). I also rely on my extensive interactions with ICC staff members, scholars, journalists and other followers of the ICC’s work over more than a decade since the Court’s establishment in 2002. This material is complemented by on-the-record statements made by the initial prosecutor of the Special Court of Sierra Leone, David Crane, and other representations of international criminal justice issues, in academic commentary and in the media.

Original languageEnglish
Title of host publicationThe Pedagogy of Economic, Political and Social Crises
Subtitle of host publicationDynamics, Construals and Lessons
PublisherTaylor & Francis Ltd
Chapter10
Pages189-206
Number of pages18
ISBN (Electronic)9781351665759
ISBN (Print)9781138062504
DOIs
Publication statusPublished - 1 Jan 2018

Bibliographical note

Publisher Copyright:
© 2019 selection and editorial matter, Bob Jessop and Karim Knio; individual chapters, the contributors.

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