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Has Atlas Shrugged? The Burden of International Law on the International Criminal Court

October 23, 2014

 This article discusses how the International Criminal Court has been undermined by the inherent politics of international law, and how the deep structure of international law has served to prevent the Court from achieving significant success in its first decade of existence

Written by Connor McBain, 1st year accelerated student and sub-editor of the International Law portion of the Review

 

 

I.         The Socio-Legal Context of the ICC and its Politics

 The International Criminal Court (ICC) was formally established in 2002 and the Office of the Prosecutor secured its first conviction in 2012.[1] Yet, twelve years on from foundation, one could not say the ICC has evolved into the bastion of justice many envisaged it would become. If anything, the ICC has struggled, under the weight of this expectation. The aim of this article is to critically analyse why general international law (IL) has presented and will continue to present a burden to the function and legitimacy of the ICC. It will not comprehensively review the history or position of the Court; such a task is beyond the scope of this piece. Instead, I will examine why the rudimentary structure of IL serves as an impediment to the Court, and how this has come to politicise the Court and its function.

This article attempts to define IL in a flexible and theoretically neutral way. Martti Koskenniemi defined IL as a series argumentative moves and positions,[2] and later as ‘a particular sensibility, or set of attitudes and preconceptions about matters international’.[3] In comparison to more conventional scholars, such as Kelsen or Tesón,[4] Koskenniemi’s definitions, and arguments more broadly, touch upon a theoretical underpinning often overlooked in conventional scholarship as well as when IL is studied purely within self-contained regimes like International Criminal Law (ICL). That underpinning is that IL operates as socially normative force for the very same reason that politics do, certain fundamental arguments prevail over others and actor’s views of the legal and political reality are shaped by those arguments.[5]

Consequently, what we might say of IL then is that it is a series of arguments organised into particular vocabularies or positions that shift when those vocabularies challenge and respond to interaction with one another. Indeed, this position is confirmed by reference to constructivism. Proponents of constructivism have persuasively advocated that structures and institutions, such as IL, are products of a mutually agreed knowledge.[6] In time, this knowledge constructs actor’s identities, interests and expectations.[7] Central to this process however is one vocabulary challenging another and altering the agreed knowledge at the core of socially constructed institutions. For example, this would explain the validity of Crawford’s observation that, although they retain a monopoly of power, States are no longer seen as the sole subject of international law.[8] This is because the vocabulary that supported the State’s monopoly of power has been undermined by another competing vocabulary.[9] The question that remains however, is how does this reality burden the ICC?

II.         The Burden of International Law

 The burden on the ICC is far from overt. Instead, the encumbrance is manifest in a variety of different criticisms directed at the Court. These accusations often include charges of cultural imperialism, appeasement, or utopianism. In many instances it is difficult to defend the Court against one of these indictments without exacerbating another. This is reflective of two related phenomena in IL, they being its argumentative indeterminacy and the politicisation of its adjudicative institutions. Neither phenomenon is distinctive to the ICC experiment; indeed, they are inherent to the IL discipline. However, the ICC presents an acute example of this challenge.

IL lacks the formal hierarchy of a municipal legal system, and there is much contention as to whether or not IL is ‘law properly so-called’.[10] This article has proceeded on the basis that if one accepts that IL forms a ‘complete’ legal system, as Kelsen sought to argue,[11] that system is at best primitive.  However, due to the absence of a singular sovereign authority, IL is dogged by a problem largely unfamiliar to municipal legal systems. That problem is the unstable balance between normativity and concreteness in the formation and continuation of international laws.[12] In essence, IL’s method of legal problem solving lacks determinate and certainty-producing coherence. Consequently, there is no manner in which one legal vocabulary might be adjudged to be more logical than another.[13]

 The dilemma of imbalance occurs as result the absence of a clear legal hierarchy. Due to this absence, international laws are justified in contradictory but co-existing techniques that inevitably lead to IL becoming an apology for power politics or drifting into irrelevancy for being too utopian.[14] As Koskenniemi put it:

 International legal discourse is incoherent as it incorporates contradictory assumptions [MK’s emphasis] about what it is to argue objectively about norms. This gives rise to conflicting legal arguments and the inability to prefer any of them.[15]

 What becomes of doctrine then, is that at one point or another IL requires its actors to exercise a political choice to reach a legal conclusion. Further, the fragmentation of IL,[16] into issue-specific regimes like ICL or international human rights law, exacerbates this imbalance. This is because their very existence depends on the same indeterminate methods referred to and ultimately, the exercise of political choice.

 The indeterminacy of IL has undermined the ICC in one clear fashion, that being it remains and will continue to remain subject to the will of States. States, as the primary subjects of IL, are the final arbiters of what obligations they undertake and the extent of those obligations. For the most part, interpretation of this decision, from the State’s perspective, will conform to what the State in question perceives its interests to be and will be justified legally in a manner that exploits IL’s indeterminacy. This presents a particular problem in that, unlike the ICJ, the ICC’s jurisdiction is not ad-hoc, there is not continually renewed consent over legal controversies. The ICC’s jurisdiction is complementary, and infinitely more controversial in some respects. Its exercise involves interfering in the internal judicial and political system of party States, something that is more often than not, unwelcome.[17] This has the effect of turning the ICC into an often-reluctant political actor.[18]

 Moreover, there can be no justifying the ICC’s existence without the consent of States to the Rome Statute, nor can its existence be justified purely on some external code of values. The ICC, from its foundation, has occupied the fault line of the apologism and utopianism that Koskenniemi observed to be inherent to IL. The ICC consequently remains an actor whose power and existence, perhaps unfairly, rests on the goodwill of its Legislative Assembly. However, this goodwill often depends on the way in which perceptions of the ICC are shaped, and consequently how competing legal and political vocabularies are interpreted. Ultimately, this confirms the ICC’s position, likely to its dissatisfaction, as a political actor, and correspondingly its susceptibility to political challenge emanating from inside and outside its Legislative Assembly.

 The overt politicisation of the Court has had two clear deleterious effects. First, its legal proceedings are subject to perversion on account of political considerations. Second, in exercise of its legal functions, the mechanisms of the Court are subject to criticism that is ignorant of the indeterminacy of IL. One prominent example, the ongoing case of Uhuru Kenyatta, epitomises this problem.

 The burden of IL has presented numerous challenges in relation to the ICC’s prosecution of Kenyatta. IL’s inherent indeterminacy allows opportunity for not only the Kenyan Government’s lack of cooperation with the investigation,[19] but also its capacity to forsake its obligations under the Rome Statute.[20] Further, the Court’s continual pursuit of African leaders had led to criticism it merely operates as a tool of western ‘cultural imperialism’.[21] This criticism, while deserving of an essay in its own right, is not without foundation. IL developed as, and remains, a euro-centric construction.[22] It is a hybrid of the common and civil law traditions of Europe, not reflective of the political and legal realities of Africa or anywhere else for that matter. Not only that, the selectivity the Prosecutor in pursuing hard cases,[23] particularly cases outside Africa, has left the Court exposed politically. This is especially true in the Kenyatta case.[24]

III.         Coda

 Whilst this article could not go on to argue for a revision of interdisciplinary boundaries, phenomena like the ICC pose a challenge to traditional conceptions of the divide between law and politics. This piece has sought to highlight some of those difficulties and, moreover, to demonstrate why IL undermines the ICC, and consequently international criminal law more broadly. The situation that the ICC finds itself in poses fundamental questions about the political role of international adjudicative institutions and whether or not they can develop a way of successfully navigating the divide between apology and utopia.

Ultimately, social processes shape the identity and interests of actors, and subsequently, the structure of the international system. The core of IL is no different. There, theories, positions and institutions are created, altered and challenged by continually conflict vocabularies and argumentative techniques. The ICC, largely through no fault of its own, has been a victim of the indeterminate nature of this process. Its attempt to legitimise its power though procedural neutrality and impartial judgment has yet to succeed in the eyes of many.[25]

What has become apparent through the many political challenges faced by the Court thus far is that it presently lacks the capacity to assert its role as a political actor as well as a legal one. Indeed, it has struggled under the weight of expectation placed upon it by certain elements of international society. While there are many ways the Court could improve, empowering it with the means and personnel to defend its actions politically would be an interesting development. In any event, the burden placed upon the Court is not sustainable, nor could observers reasonably expect it to be so.



*B.IR (Bond), LL.B Candidate (Glasgow); formerly an LL.B Candidate of Bond University.

[1] The Prosecutor v. Thomas Lubanga Dyilo, International Criminal Court, Trial Chamber 1, ICC-01/04-01/06-2842, 3/624, 14 March 2013).

[2] Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005, Cambridge University Press), 7.

[3] Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2002, Cambridge University Press), 2.

[4] See Hans Kelsen, Principles of International Law (1952, Lawbook Exchange Ltd), 3; Fernando Tesón, ‘The Kantian Theory of International Law’ (1992) 92(1) Columbia Law Review, 53, 63-64.

[5] See Martti Koskenniemi, The Politics of International Law (2011, Hart Publishing), 307-330.

[6] For explanation of the constitutive role of ‘shared knowledge’ see Alexander Wendt, Social Theory of International Politics (1999, Cambridge University Press), 139-144.

[7] Ibid.

[8] See James Crawford, Brownlie’s Principles of International Law (8th ed, 2012, Oxford University Press), 4.

[9] See Martti Koskenniemi, The Politics of International Law (2011, Hart Publishing), 307-308.

[10] See Augusto Zimmerman, Western Legal Theory: History, Concepts and Perspectives, (2013, LexisNexis Butterworths), 67-68.

[11] Hans Kelsen, General Theory of Law and State (1949, Harvard University Press), 341

[12] See Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005, Cambridge University Press), 58-69.

[13] Martti Koskenniemi, The Politics of International Law (2011, Hart Publishing), 327-330.

[14] See Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005, Cambridge University Press), 59-60.

[15] Ibid, 63.

[16] See, generally, International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UNDoc A/CN.4/L.682, 58th Sess, 2006.

[17] Steven C. Roach, Politicising the International Criminal Court (2006, Roman & Littlefield), 68-70.

[18] Ibid.

[19] See David Bosco, ‘How to Destroy the International Criminal Court From Within’, Foreign Policy (Online), 10/10/2014,<http://www.foreignpolicy.com/articles/2014/10/10/how_to_destroy_international_criminal_court_from_within_kenya_ICC_kenyatta_hague; Situation In The Republic Of Kenya In The Case Of The Prosecutor v Uhuru Muigai Kenyatta, ICC-0109-02/11, 12/2/2014,<http://www.icc-cpi.int/iccdocs/doc/doc1728393.pdf>.  

[20] Rome Statute of the International Criminal Court, signed 17/7/1998, 2187 UNTS 3 (entered into force 1/7/2002), art 127.

[21]‘African Union urges ICC to defer Uhuru Kenyatta case’, BBC (Online), 12/10/2013, <http://www.bbc.co.uk/news/world-africa-24506006>.

[22]Arnulf Becker Lorca, ‘Eurocentrism in the History of International Law’ in Bardo Fassbender & Anne Peters (eds) The Oxford Handbook of The History of International Law (2013, Oxford University Press), 1034, 1034-1039.

[23] Steven C. Roach, Politicising the International Criminal Court (2006, Roman & Littlefield), 69.

[24]Kenya leader Uhuru Kenyatta's ICC trial shelved’, BBC (Online), 5/9/2014, <http://www.bbc.co.uk/news/world-africa-29083115>.

[25] Steven C. Roach, Politicising the International Criminal Court (2006, Roman & Littlefield), 69.

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