Retributive Justice is better than its Restorative versions
My final premise is based on looking at the retributive mechanisms that have been the hallmark of the completed trials at the permanent court and also at the ad hoc tribunals. During the years leading up to the Rome Statute, there was debate and discussion on the model to be followed at the ICC. In the past, the Court has seen itself as having the potential to create a conversation between the two models – retributive and restorative. This may be imagined by constructing the focus given to victims in the Statute. However, in the practice of the courts, there is a marked emphasis on retribution. Part of the rationale for this thinking by the chambers can be explained by the strong preference that victims in post-conflict societies have for retribution – and the optics that a prison sentence give to the political legitimacy of conventional courts. However, and this is at the heart of this premise, the ICC is NOT a conventional court. For it to pander to the political vagaries of states parties by not attempting to create a more restorative model of justice in its jurisprudence is not helping the legitimacy project either.
The restorative model is largely rooted in transitional justice and necessitates a deeper study of the post-conflict situation – it brings together a vital toolkit aimed at long-term stability for the affected states / communities and a way for them to overcome the violence of the conflict period through mechanisms such as a public apology. These tools from the transitional justice repertoire match and perhaps outshine the optics I mentioned earlier. But more importantly, they provide a possible alternative way to interpret victim participation at the ICC. Thus far, the court has devised its own meaning to the term – giving the victims standing, privacy and an opportunity to strengthen the narrative made by the OTP in their own cause. While this is largely based on the EU victim participation model and does serve an important role at the ICC, it also weakens the restorative justice possibilities that are to be found in the Rome Statute. An expansive reading of victim participation and the role of witnesses would allow the court to reach out to the communities involved in a trial by including elements of restorative justice (thus enriching and revitalising its legitimacy?).
International Courts are better than Domestic Options
The second part of my observations on the fallacies of international criminal justice is on the premium placed on “international” and “court” in the international criminal justice system. As an independent observer of the Bangladesh War Crimes Tribunals in Dhaka and through my associations with international tribunals such as the ICTR in Arusha and the ECCC in Phnom Penh, I have wondered whether this systemic preference for institutionalized and international solutions to local conflicts is not at odds with the ultimate end of the justice project – comity among states, the end of a culture of impunity, accountability for individual crimes in a system that aims to foster peace through co-operation.
That institutionalizing this broad vision is a perilous task was already revealed through the Tokyo and Nuremberg Tribunals that loom large in our history – showing the weakness of a political bias for institutionalization that does not enjoy the support and co-operation of states that are made to participate in the exercise. But the lasting impression of the role of courts that was born out of these historical trials was one of a post facto institution – created to clean up after political events and individual actors had run their course. This is the role that the permanent court is designed to replace – it is not post facto and by saying that it becomes a symbol of endurance and resilience. However, plenty of creative ways can be thought of to make the work of the international court more meaningful to and accessible to the countries and ‘situations’ it works with. The first of these would be localize the court’s presence by creating forms of vertical interactions with existing institutions in the state in question. When this is made impossible by political conditions, a regional version of such vertical interactions may be imagined. Part of the democratic deficit and deep mistrust in the institution is born out of the fractured optics of each trial – with its seat in The Hague and its international judges and lawyers, the court is seen as an outsider to the justice process. Having witnessed the hostility with which the Legacy Project of the UN ICTR is viewed in Rwanda, I think it is important for efforts at international justice to pay close attention to Transitional Justice. A period of conflict, no matter how horrendous, belongs in the history of that state. There is a sense of ownership of stories of human suffering and identity politics born out of terrible crises in human rights – when courts take over the narrative of trying those most responsible for these acts, the effort, no matter how laudable, needs to be related back to those whose lives it has directly impacted. A growing urgency is palpable in the many instances where states refuse to co-operate or honour their treaty commitments under the Rome Statute because the political leadership there is afraid of an international institution co-opting their sovereign right to their own history. Internalizing the elements of transitional justice like memorializing, narrative history, truth telling and embracing creative, customized approaches to each trial could be one way to harmonize the international with the local. Examples like the success of the post-genocidal Gacaca exercise in Rwanda, the TRC in post-apartheid South Africa, the much-maligned purely domestic Bangladeshi War Crimes Tribunal, and failed examples of replicating these tools in Nepal, Myanmar also contain important caveats against placing complete reliance on the local. With hybrid institutions like the ECCC/UNAKRT, SCSL too, there are important lessons in “internationalizing” a fundamentally domestic exercise. What has not yet been truly attempted is “localizing” the international.
PERMANENT IS BETTER THAN TEMPORARY
In the wake of the latest chaos at the International Criminal Court over the Laurent Gbagbo decision by the Trial Chamber, it seems a good time to revisit the old debate on the efficacy of the permanent international justice system created by the ICC. Several excellent posts have appeared in the last few days that indicate that the ICC is in crisis. But really, has there ever been a point in the Court’s history that it has NOT been in crisis?
Starting from a crippling democratic deficit, the ICC now has a robust membership – granted; but the meaning of this membership is deeply complex. Cases like Ruto in the Trial Chamber and the Appeal by Jordan in the case regarding the arrest of Omar Al Bashir are only two in a large list of instances where being a State party to the Rome Statute has apparently no meaning – since the member states in question – Kenya and the Hashemite Kingdom of Jordan refused to co-operate with the Court.
Contrast this with the clear co-operation and membership mandates of the ad hoc tribunals, now a source of legacy and jurisprudence in international criminal law. They had a clear mandate to co-operate that was the basis of founding the jurisdiction of the tribunal. With the way clear for the concerned states to forge a consensus on the jurisdiction of the tribunal, very little time and effort was expended on requesting co-operation in the framework of the ad hocs. Of course, the hybrid tribunals such as the UNAKRT / ECCC are a separate story of foiled attempts at co-operation despite a consensus. While co-operation of member states is the hallmark of a permanent institution, the ICC has not had much success with its current set of members.
The track record of the two ad hocs remains in impressive contrast with that of the ICC – during its active life from 1995 to 2017, the ICTY indicted 161 individuals of whom 99 were sentenced, 19 acquitted and 13 referred to domestic courts. The ICTR, during its period of activity, indicted 96 individuals of whom 62 were sentenced, 14 acquitted and 10 referred to domestic courts. Both of these are now succeeded by the UN MICT, in a complex passage of institutional history – that has inherited important pending trials at both tribunals and is also responsible for the fugitives yet to be apprehended by the prosecutorial and investigative mechanism of both tribunals. In contrast, since its entry into force in July 2002, the ICC has had 28 cases, with 34 warrants of arrest issued, 24 acquittals, 8 cases closed, and 4 convictions pending final decisions. In addition the ICC has 11 situations under ongoing investigation. These numbers speak volumes about the co-operation of states parties to the UN and to the ICC. The co-operation of member states used to translate into consensus in the establishment of ad hocs with a clear mandate and an uncontentious founding basis of their jurisdiction – trials moved rapidly to admissibility. Whereas, in this permanent institution, we find stalemate after stalemate – showing that political co-operation cannot be counted on when the institution created by the member states turns around and requests their co-operation in investigations and indictments that might destabilize their own political capital.
The question remains open – is permanent better than ad hoc, really?
My arguments for Fallacies Two and Three follow…
In a historically important decision, the Pre-Trial Chamber of the International Criminal Court has today decided that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The Prosecutor submitted her request to the Court under Article 19 (3) of the Rome Statute of the ICC submitting that even though most of the crimes against the Rohingya have taken place within the sovereign territory of a non-state party Myanmar, over which the ICC is unable to exercise jurisdiction, one discrete incident, that is the incident of border crossing into the territory of a member state Bangladesh, creates enough ground to attract the jurisdiction of the ICC over the crime of deportation associated with the border crossing. This is a step into unchartered waters for the ICC – never before has the principle of territoriality of a crime been reviewed independently of the “territorial integrity” of states. To venture into this area would be to bring the obligations of three states – Myanmar, Bangladesh and India (into which Rohingya populations have entered seeking asylum) under general principles of international law into question – for a group whose terrible suffering has been at the forefront of all human rights billboards this year.
Two provisions of the Rome Statute have been provocatively interpreted by the Prosecutor and the Pre Trial Chamber in its majority ruling on admissibility today. These are Articles 19 (3) and 119 (1). 19 (3) is the Prosecutor’s power to approach the Court in the matter of determining certain judicial questions before embarking on a course of action that may involve invoking the Court’s jurisdiction. The Chamber notes that at the heart of this request is question of invoking the jurisdiction of the Court under Article 12 (2) (a) in the context of an alleged forceful deportation of the Rohingya from the Rakhine region of Myanmar into Bangladesh. The Chamber then relies on old jurisprudence from the PCIJ in the Mavrommatis Palestine Concessions and the ICJ’s more recent East Timor (Portugal v. Australia) as well as a host of other cases from various other international courts and tribunals to hold that the definition of “dispute” is one that is open to judicial interpretation. It thus finds that its jurisdiction is subject to “dispute with Myanmar” and that it is competent to entertain this request under Article 119 (1). Further the Chamber relies on a general principle of international law – Kompetenz Kompetenz and cites a powerful battery of precedents to establish that as an international court of law, it has the power to determine its own jurisdiction under the Rome Statute and exercise its jurisdiction to admit the request made by the Prosecutor.
In the weeks leading up to the 91st anniversary of the judgment, two students and I had an occasion to re-read the iconic case of the SS Lotus (France v. Turkey) PCIJ 1927. Our task was to see how one word – the name of the capital city of Turkey – one of the two parties to the case, was invoked by judges in the text of the 1927 Lotus decision. We write this small piece to bring out a non-essential, but nevertheless interesting aspect of this much-cited, much-studied decision.
The SS Lotus case was a legal dispute between France and Turkey, brought by France to the chief judicial organ of the League of Nations, the Permanent Court of International Justice – which is the precursor to the International Court of Justice, chief judicial organ of the United Nations. The facts of the case involved a collision upon the high seas, on August 2, 1926, between a French vessel the SS Lotus and a Turkish vessel the Boz Kourt. The victims were Turkish nationals and the alleged offender was a French lieutenant on the Lotus. The case was brought before the PCIJ to study whether Turkey could exercise its jurisdiction over the French lieutenant under international law.
Our starting point is that the political histories of Western and Eastern scholarship, use different names for the same city. And though Istanbul – the name, the city, and the symbol; is, at best, of tangential importance to the legal outcome of the Lotus; there is something to be said about the how the usage of different names for the same city, offer clues to the political imaginations of the judges.
The Turkish capital, originally referred to in texts by Pliny the Elder, as Lygos, was colonised by the Greek in 667 BC. The Romans named it Byzantium – Eastern Roman Empire. It was then renamed Nova Roma, and eventually become Constantinopolis, when the Roman Emperor Constantine made it his capital 330 AD. Given Emperor Constantine’s recent conversion to Christianity, the city of Constantinople became a thriving centre for religion and an important symbol of Christendom. In 1453 AD, Sultan Mehmed II “The Conqueror” laid siege to the city and captured it, and made it the capital of the Ottoman Empire. Mehmed sacked the legendary Hagia Sophia and turned it into a mosque. He proclaimed Islam as the State religion.
After World War I, the empire was split up and occupied by the Allied powers. The Turkish War of Independence saw the Allies being pushed out in 1923. Turkey signed the Treaty of Lausanne – giving it recognised international borders and exclusive jurisdiction over the territory of Turkey.