Interview with Professor Mark Drumbl (Part-2)

4. The recent reparations order in the Ntaganda case mentions that collective reparations will be provided through the Trust Fund for Victims. Do you have any suggestions in mind with regard to how the Trust Fund for Victims can deliver reparations efficiently and in a time-bound manner?

One of the major problems is resources. The trust fund is undercapitalized. Now we have Ntaganda, and we had quite a significant amount of reparations awarded in Al- Mahdi. The Trust Fund has made awards in the past, at times unrelated to actual convictions like in Uganda. I remember speaking to a reporter about Ntaganda and it almost seems to me that reparative awards are going in the direction of symbolic justice. This may not intrinsically be a bad thing but then it should be described as such, which it is not. I cannot help but wonder if the entire reparative structure of international criminal justice would be better served by creating an independent commission apart from the ICC.

My other concern with reparative justice at the ICC is that, fundamentally, the ICC is a penal organization and reparative justice has been added on to it in the form of the Trust Fund and proceedings related to reparations. The norm is punitive justice and then you have this add-on. Add-ons are always subjacent and the second priority.

We do not need scattered penal judgments to tell us which societies are in need of reparations to deal with mass victimization.

Another concern that I have is the existence of the Trust Fund which might divert attention from the fact that through other forms of foreign aid which I would prefer to call our cosmopolitan duty we can inject large amounts of funds into places that have witnessed mass atrocities with the view to societal reconstruction. Why does it have to be connected to guilt or innocence of a small number of perpetrators who for reasons of absolute coincidence just happen to fall into the custody of ICC? I worry about that as well. The more we talk about Trust Funds, the less we feel we need to talk about the fact that reparations do not require a courtroom to be given.

5. What are your opinions about considering ecocide as an international crime?

I have written about ecocide in the past. I am skeptical that this is something that should fall within the framework of the ICC. I do not think it has the resources. I am not certain what kind of awards the Court can issue that would actually in this instance be reparative. I think for crimes such as environmental crimes the push should be for greater consciousness at the national level. The total amount of environmental damage worldwide that is created by individuals purposefully acting malevolently is quite small. The greatest challenge that the younger generation faces are things like climate change where the contribution to the problem are not mens rea crimes. They are not intentional acts to deliberately emit greenhouse gases. They are generally ordinary, lifestyle choices that are made every day to commute to work, to cool or heat a home, to develop economically, or general policy of corporate negligence. All of those are very difficult to fit in the mens rea frame and of course, ecocide carries the term genocide which would then rhetorically at least require to have a very high special intent which would capture a tiny fraction of environmental harm. I think we are much better of thinking creatively about how to deal with climate change and that would not be by creating penal institutions that do not do much work in that area because they cannot. Your generations’ challenge also is to deal with public health atrocities. The percentage of people who deliberately spread COVID is diminutive. COVID is spread through carelessness, ignorance, desperation, poverty. I think your generation’s challenge is to develop institutions that focus on harm as opposed to intent.

6. What can be done to include more feminist voices in the international justice arena?

This is an area in which I find there are discursive gaps. I have last month published a piece along with a colleague, Solange Mouthaan, who is a feminist scholar at University of Warwick. In that piece, we looked at the trial of a woman named Ilse Koch who was a concentration camp guard in World War II. She was prosecuted by an American Military Tribunal and then prosecuted by a West German court. Koch was convicted in both trials and sentenced to life for war crimes by the West German Court and then she committed suicide at the age of 60. This trial to me is illustrative as an answer to your question.

One thing that must happen for a discursive equitable playing field level is that the predominance of paternalistic, patriarchal gender-based tropes involving pejorative narratives become removed from public discourse. Koch’s trial brought forth the gender-based stereotype that she was so evil because any woman who would commit this kind of violence would have to be absolutely sadistic as this is not a ‘womanly act.’ I have seen that in discursive frames about women perpetrators — a sensationalism often arises. In this article, Solange and I also observe another equally wincing gender-based stereotype, which is to say that Koch only did it because of her husband or that her husband made her do that. It is portrayed that the act is solely a result of the patriarchal society and her overbearing husband, not an act of her own. She is presented as helpless.

What I think has to emerge for inclusion for a progressive feminist analysis is that neither of those two tropes become the dominant narrative, because what was completely lost in the Ilse Koch trial was her own real story. How did she come to be who she was? What did she do? Why? And also, what do her victims and survivors have to say about her as a perpetrator? All of that becomes marginalized and occluded through the force of these assumptive stereotypes. To me that is very important and I think that means when one rethinks the history of exclusion of women in post-  conflict reconstruction that a full lens needs to be adopted. A vibrant conversation arises about the role that women played in the Nuremburg Trials or in the post- World War II process of justice. Almost all of that conversation focuses on women who helped, assisted, supported or determined the process or defined the law. One of the biggest omissions in a feminist history of Nuremburg is the discussion of women perpetrators. Solange and I argue in this article that promoting true gender equality means fully recognizing the agency of women in the cataclysm of atrocity and the ensuring social repair.

The second crucial move that I really hope happens is a far more active inclusion of feminist voices from the Global South and a recognition that there is not one feminism. There is not ‘a’ feminist perspective. There are feminisms. I think voices from the Global South in feminist theory and justice are under appreciated and under recognized at the moment. This maps onto another broader theme that I think would really suit international criminal law well and add more candor and more honesty. Greater inclusiveness and sharing in context of people that one listens to may mean accepting ideas that are not exactly the same as what the listener hopes to hear. To me, it is the ultimate form of discursive colonialism when those in power seek to include others only on the condition that what they say matches the expectations of those in power about what the disempowered are supposed to say. I worry about that, too. I know I have shared many worries, and really, I am not a chronic worrier, but the point remains that there cannot be any growth without self-reflection.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s