The International Criminal Court and Global Social Control

International Criminal Justice in Late Modernity

Nerida Chazal

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317589655
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The International Criminal Court was established in 2002 to prosecute war crimes, crimes against humanity, and genocide. At its genesis the ICC was expected to help prevent atrocities from arising or escalating by ending the impunity of leaders and administering punishment for the commission of international crimes. More than a decade later, the ICC's ability to achieve these broad aims has been questioned, as the ICC has reached only two guilty verdicts. In addition, some of the world's major powers, including the United States, Russia and China, are not members of the ICC. These issues underscore a gap between the ideals of prevention and deterrence and the reality of the ICC's functioning.

This book explores the gaps, schisms, and contradictions that are increasingly defining the International Criminal Court, moving beyond existing legal, international relations, and political accounts of the ICC to analyse the Court from a criminological standpoint. By exploring the way different actors engage with the ICC and viewing the Court through the framework of late modernity, the book considers how gaps between rhetoric and reality arise in the work of the ICC. Contrary to much existing research, the book examines how such gaps and tensions can be productive as they enable the Court to navigate a complex, international environment driven by geopolitics.

The International Criminal Court and Global Social Control will be of interest to academics, researchers, and advanced practitioners in international law, international relations, criminology, and political science. It will also be of use in upper-level undergraduate and postgraduate courses related to international criminal justice and globalization.

1 Introduction

Speaking at a ceremony to celebrate the ten-year anniversary of the International Criminal Court (herein the ICC or the Court) in 2012, the then president of the Court, Judge Sang-Hyun Song, declared: ‘Impunity for atrocity crimes must end. Accountability must prevail. Always and everywhere’ (Song 2012). At the time of this celebration the ICC had only successfully prosecuted one individual, Thomas Lubanga from the Democratic Republic of the Congo, while 11 trials continued and 13 arrest warrants remained outstanding. One of the most notable suspects on this wanted list, the president of Sudan, Omar al-Bashir, dismissed his arrest warrant saying, ‘we are telling them to immerse it in water and drink it’ (James 2009). Al-Bashir continued to act as the country’s active president while describing the Court as ‘a tool to terrorize countries that the West thinks are disobedient’ (Dealy 2009b).

Further to this, at the time of the celebratory event, widespread violence continued in Syria (Greenwood 2012), tensions intensified in Gaza (Barzak and Teibel 2012), and commentators warned of potential violence at the 2013 elections in Kenya, despite the ICC’s ongoing investigation and prosecution of the 2008 election violence (Cummings 2012). Similarly, conflict in eastern Congo escalated with over 320,000 people affected by violence (CARE 2012), even though the ICC found Thomas Lubanga guilty of war crimes in March 2012 (ICC 2012a). In the face of these challenges, Judge Sang-Hyun Song affirmed that for the Court to succeed ‘we must remain determined and united’ (Song 2012), yet some of the world’s major powers, including the United States, Russia and China, are not parties to the ICC, relatively few Asia-Pacific countries have signed the Rome Statute of the Court (Freeland 2013), and Africa remains divided over the role of the ICC (Keppler 2011). A prominent example of this division is the complicity of Chad, Kenya, and Djibouti with ICC suspect Omar al-Bashir. These countries have all hosted al-Bashir without enforcing his outstanding ICC arrest warrant, despite their status as States Parties to the ICC (du Plessis and Louw 2011).

Such contradictions define the International Criminal Court after more than a decade of existence. Established in 2002 as the world’s first permanent court to prosecute war crimes, crimes against humanity, genocide, and aggression, the ICC was given the task of achieving a broad array of aims. These aims are reflected in the United Nations’ overview of the Rome Statute of the ICC, which states that the Court was developed:

to achieve justice for all; to end impunity; to help end conflicts; to remedy the deficiencies of ad hoc tribunals; to take over when national criminal justice institutions are unwilling or unable to act; and to deter future war criminals.

(UN 1999, n.p.)

It would be difficult for any justice institution to achieve such broad and lofty aims, let alone a nascent court still striving to assert its legitimacy and develop its identity while operating within a fragmented, highly political milieu. Unsurprisingly, then, disparities between the ICC’s aims and its functioning have developed, which have been described as expectation gaps and impunity gaps (Gibb 2010). These disparities have disappointed victims, created scepticism over the role of the Court, and undermined the power and influence of the ICC. Despite these gaps, rhetoric surrounding the Court continues to rely on lofty goals, meaning the Court’s formative years have been marked by schisms between inspirational narratives that exalt the Court’s potential and criticisms that warn of the Court’s dangers and shortcomings. This book takes the contradictions and gaps between the ICC’s aims and its reality as the starting point to explore the role and position of the Court in international society and its ability to be used as a tool of social control.

1.1 The contradictory aims of the International Criminal Court

A quick search of discourse surrounding the ICC will reveal that the Court is, among other things, designed to: end impunity, add accountability to the international system, prevent international crimes from occurring, halt the escalation of conflict, ensure peace, bring a sense of justice to victim communities, provide reparations for victims, punish human rights abusers, highlight areas where human rights abuses are occurring, and set standards of rights and justice. As Damaška (2008) highlights, the goals proclaimed by international criminal courts go beyond the traditional aims of retribution, deterrence, incapacitation, and rehabilitation ascribed to domestic criminal justice systems. On top of these aims, international courts seek to produce a historical record of the context of international crimes, give victims of mass atrocities a voice, and promulgate human rights norms (Damaška 2008). International courts, and in particular the ICC, must achieve these aims despite lacking a system of enforcement to assist in the investigation and adjudication of especially complex crimes. This creates a paradox where ‘intrinsically powerless institutions aspire to achieve objectives whose attainment would be a serious challenge to even their most powerful national counterparts’ (Damaška 2009, p. 23). Considering the limitations of the ICC and its reliance on outside support, we could expect the ICC to espouse more modest ambitions, yet the Court continues to set lofty, unachievable aims for itself which creates disparity between the ICC’s rhetoric and the reality of its operation.

In addition to the overabundance of highly ambitious goals, many of the ICC’s stated aims clash with each other, creating tensions and contradictions in the functioning of the Court. Damaška (2008) outlines some of these tensions: the desire to stop ongoing conflict can be hampered by bringing prominent leaders to justice; the aim of producing an accurate historical record cannot be achieved through the narrow juridical framework of individual responsibility and adversarial proceedings; the ideal of protecting the rights of the accused clashes with the desire to provide satisfaction to victims; and the aspiration to propagate human rights conflicts with the ICC’s model of narrow and selective prosecutions and the disparate effects of the ICC in local and international contexts. Adding to these tensions is the lack of ranking order to prioritize the conflicting aims and the ICC’s limited institutional capacity to achieve these aims given its reliance on outside support, its finite resources and the complex nature of the international crimes that it deals with (Damaška 2009).

Damaška’s (2008, 2009) work on the aims of international criminal justice provides a useful foundation to think about the multiple aims of the ICC and the many tensions and contradictions that are inherent in the functioning of the Court. His work is joined by other literature that examines the aims of sentencing at an international level (Drumbl 2005; Henham 2002, 2005, 2007a, 2007b; Henham and Findlay 2005) and explores the complex and often contradictory role of international criminal justice in international society (Smeulers and Haveman 2008; De Lint, Marmo and Chazal 2013; Rothe and Mullins 2006a). This book explores these contradictions and tensions, categorizing the multiple goals into aims of prevention and aims of persuasion, using a social constructivist perspective to explore the role of actors in constructing the ICC’s aims, examining how idealpolitik and realpolitik shape the ICC, and adopting the theoretical framework of late modernity to understanding how the ICC’s conflicting aims allow it to act as an institution of global social control. These conceptual tools are briefly outlined below and elaborated on throughout the book.

Aims of prevention and persuasion

To assist in better understanding the development and operation of the multiple aims of the ICC, a schematic for simplifying the aims is needed. This book groups the aims of the ICC into two broad, overarching categories: aims of prevention and aims of persuasion. These categories capture the two core roles that the ICC plays and encapsulate the variety of aims as defined in both discourse surrounding the Court and by those who work closely with the ICC.

Preventative aims are often articulated through the catch cries of ‘ending impunity’ and ‘adding accountability’ to the international system. Aims of prevention include criminal justice goals of general and specific deterrence and retribution. These aims seek to stop international crimes from occurring or from escalating and in doing so contribute to peace (UN 1999). Persuasive aims view the Court as an important normative body that exists to reinforce human rights norms and improve legislation and justice processes at both international and domestic levels. Persuasive aims construct the Court as a catalyst for action and change at a national level and highlight the importance of the ICC in establishing appropriate procedural justice precedents in response to international crimes. Persuasive aims capture the didactic role of the ICC and construct the Court as a model of justice.

The aims of prevention and persuasion come to the fore in discourse surrounding the ICC and in actors’ descriptions of the aims of the Court. Of course, this schematic is conceptual and is somewhat contrived as, in reality, aims are multiple, fragmented, and complex. However, viewing the multiple aims of the ICC as fitting under these two overarching paradigms is useful in understanding the work of the Court. Aims that often appear central to the operation of the ICC, such as providing satisfaction and reparation to victims, are exposed as secondary to more control-based aims of preventing international crimes and establishing a persuasive, normative framework for international society. As this book will explore, it is these aims that dictate the reality of the ICC.

The social construction of the ICC

This book uses a social constructionist perspective to examine the role that actors play in constituting the aforementioned aims of the ICC. It argues that the multiple aims of the Court are socially constructed by the broad range of actors that interact and engage with the Court. Throughout the book, the terms ‘actors’ and ‘groups’ are used to refer to the different agents that construct international society. Individual actors can act reflexively and this reflexivity is particularly heightened in late modernity (as explored in Chapter 4), but in doing so they are significantly constrained by the structures in which they operate. The individual human rights actor, for example, can shape international criminal justice discourses, but will often reproduce the narratives of the group they are connected to, for example, the NGO Human Rights Watch (Chapter 3 examines the social constructivist perspective in greater depth).

Groups are similarly constrained by the wider structures in which they operate, such as the assumptions that guide the field of human rights or the norms and principles of the field of international law (Chapter 5 uses Bourdieu’s concept of fields to explore how actors are constrained by norms of the area in which they operate). The vast numbers of groups that make up international society, including the United Nations, states, and NGOs, means that there are many different interests that are articulated through engagements with the ICC and, therefore, many different aims set out for the Court. Groups use the Court for a variety of reasons and to support their own interests and identities. This creates polarized discourses surrounding the ICC and multiple, contradictory aims for the Court.

Realpolitik and idealpolitik

One way of conceptualizing the contradictory aims of the ICC and the gap between the Court’s rhetoric and its reality is through the framework of idealpolitik and realpolitik. Idealpolitik refers to circumstances where ‘behaviour is dictated by “principles of legitimacy” and conditions where normative principles are privileged over simple power politics’ (Atkinson 2011, p. 101). The ideas that underpin idealpolitik are predominately normative or ideal-based. Realpolitik is equally constituted by ideas; however, these ideas focus on power politics and strategic political interests (Rudolph 2001). As this highlights, both idealpolitik and realpolitik are constituted by ideas; it is the premise of the ideas as based on normative and ideational frameworks or political strategies and power politics that differentiates the two. Idealpolitik can, therefore, be defined as the mobilization of normative ideals, and realpolitik as the mobilization of instrumental ideals and practical interests.

The ICC is constructed by both idealpolitik and realpolitik. Some groups use idealpolitik to support the Court and align their identities and interests with the ICC, while others are driven by realpolitik and construct their interests and identities through their negative interactions with the Court in order to reinforce power structures and political interests. A key example of the use of idealpolitik in the construction of the Court is the international NGOs that support the work of the Court and use ideals based on human rights to construct the Court as a positive institution that can end impunity, achieve peace, and bring justice to victims. At the same time as engaging with such idealpolitik, the ICC also interacts with groups whose ideas are based on realpolitik. A primary example is engagement between the United States and the ICC. The United States has been opposed to the ICC and has had a series of negative interactions with the Court, as explored in Chapter 3. As both realpolitik and idealpolitik are used to construct the ICC, it becomes apparent that tensions and conditions of the ICC are an inherent part of the operation of the Court.

Late modernity and social control

The contradictions, schisms, and tensions that define the aims of the ICC can also be considered symptomatic of the ICC’s desire for control in an international environment that is complex and fragmented. This corresponds to criminological theories of social control in late modernity (Garland 2001; Young 1999). Although the convergence of crime and justice discourses and the concept of control have been used to examine the contradictions of criminal justice at a national level (amongst others Garland 1996, 2001; Hudson 2003b; Young 1999, 2007), these concepts are yet to be used to explain the contradictory nature of emerging international criminal justice institutions. From the late-modern perspective, the Court’s contradictions and ambivalences are beneficial as they assist the Court in responding to the simultaneous desire for unity, pluralization, flexibility, and control that are characteristic of the late-modern environment in which the Court is acting (Bauman 1990, 1991 and 2000).

This flexibility can also be negative, however, as it means more powerful actors can use the Court according to their own realpolitik. The ICC has the power to selectively criminalize particular situations, mirroring pre-existing geopolitical divisions, inequalities, and disadvantages in the process. As Roberts and McMillan (2003, p. 321) highlight, ‘processes of social censure and criminalization are today being replicated in supranational contexts’. Similarly, Michalowski (2009) highlights that transnational structures of power create and use the ‘criminal other’ to facilitate control at an international level. Adopting this outlook, this book considers how the contradictions and schisms of the ICC are both useful in allowing it to navigate the complex terrain of late modernity and detrimental in reproducing existing geopolitical divides.

1.2 Aims, methods, and structure of the book

The overarching aim of this book is to examine how and why gaps between the ideal and reality occur and to understand how they influence the functioning of the Court, the construction of the Court’s identity, and the position of the ICC in international society as an institution of social control. The book examines how the many different actors construct the ICC through their interactions with it and considers how the broad aims of the Court can be useful, as they allow these varied actors to engage with and support the Court while simultaneously pursing their own unique interests and goals.

This book examines the ICC from a critical and theoretical perspective. The theoretical examination of the ICC seeks to clarify broader trends in the work of the Court and understand how these trends influence its functioning within international society. Any critical examination of the ICC has not been undertaken in the spirit of undermining the Court. As Shklar (1986, pp. 122–23) highlights, ‘to show that justice has its practical and ideological limits is not to slight it.… The entire aim is rather to account for the difficulties which the morality of justice faces in a morally pluralistic world.’ By examining the pluralities of ICC through a critical lens, this book seeks to illuminate the Court’s position in international society as an adaptable institution of social control.

Methods

To achieve these goals, the book examines documents surrounding the ICC, analyses interview data from a series of semi-structured interviews with individuals who work closely with the Court, and explores a case study of the trial of Thomas Lubanga. The interviews were designed to examine how actors working closely with the ICC construct the Court’s aims, explore the use of realpolitik and idealpolitik in the construction of the ICC, and illuminate the tensions between different perspectives on the ICC. By interviewing those who work closely with the Court, the semi-structured interviews offer first-hand accounts of how experts view the Court and how their perceptions of international criminal justice and their interactions with each other shape the Court’s aims and contradictions. Throughout the book, interview quotes are attributed to participants (for example, Participant A), and an interview schedule is provided in Appendix A. To complement this data, the use of a case study exemplifies how the contradictions and ambivalences of the ICC operate in the trial setting.

Structure

Following this introduction, Chapter 2, ‘The development and aims of the International Criminal Court’, examines the Rome Statute Preamble, ICC documents, and broad discourses surrounding the Court to understand how the aims of the ICC have developed. This includes historical contextualization of the ICC’s aims and narratives, such as ‘never again’, which have matured over the past century. This chapter highlights how the aims of the ICC are multiple, competing, and broad. It contrasts the ideals of the ICC with the reality of its functioning, using the oppositional framework of idealpolitik and realpolitik to examine the gaps between what the ICC says it will achieve and what the Court has actually achieved. The chapter highlights that the Court is often characterized simultaneously as a positive tool that can end impunity and enforce human rights standards, and a negative weapon that can amplify political struggles and reinforce geopolitical divides.

Chapter 3, ‘Tensions in the pursuit of justice’, explores how the gaps and tensions between the ideal and reality of the ICC are socially constructed. To do this, the chapter compares the...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• Abbreviations
• 1 Introduction
• 2 The development and aims of the ICC
• 3 Tensions in the pursuit of justice
• 4 Late modernity, social control, and the ICC
• 5 The role of actors
• 6 The trial as a site of contest: the DRC and Thomas Lubanga
• 7 The ICC as a tool
• 8 Conclusion
• Appendix: interview participants
• Bibliography
• Index