A Response to Mark Drumbl

Let me thank Mark Drumbl once again for taking the time to provide his thoughtful response to my Article.

As Mark and I agree on many points, I will focus on what appears to be the clearest point of difference between us:  our respective answers to the practical question of how the ICC should instantiate its complementarity principle.   Absent contrary guidance from the Security Council, I support ICC prosecutor Luis Moreno-Ocampo’s targeted insistence on conventional prosecutions for Kony and the remaining suspects for whom the ICC has issued warrants.  Mark, as I understand him, would instead have the ICC apply the “light touch” to complementarity that he has advanced in his book Atrocity, Punishment, and International Law.   The fact that I differ with Mark on this point is somewhat surprising given that (1) I believe that Mark has developed a compelling normative framework for evaluating state responses to mass atrocity, (2) I agree that his approach is defensible as a valid interpretation of the ICC’s statute, and (3) I believe that the prosecutor’s stated policy is uncompelling and even incoherent if viewed as a general normative framework for evaluating state responses to mass atrocity.  I nevertheless reluctantly endorse Moreno-Ocampo’s insistence on traditional prosecutions for the accused because I am skeptical of the ICC’s ability to safeguard its legitimacy while making the kinds of judgments that Mark’s approach demands.  In other words, my position hinges on distinguishing the specific institutional setting of the ICC from a general normative framework for transitional justice.

To elaborate on the source of my unease, I proceed from the realization that legal responses to mass atrocity often require compromise and sacrifice.  I am enough of a retributivist to acknowledge that there is something inherently tragic and regrettable in the prospect that a mass murderer like Joseph Kony will evade the punishment that is generally deemed appropriate-in Uganda and elsewhere-for offenses of the magnitude he has committed.  But I agree that other considerations-including the desire to end or prevent war, the interest in fostering societal reconciliation, and the difficulty of processing overwhelming numbers of perpetrators-can override individual desert-based considerations and justify the sorts of compromises that Uganda has explored.

I am skeptical, however, that the ICC can develop a judicially manageable framework that does justice to the complexity of the considerations that inform these compromises.  Because the ICC itself has targeted only a handful of LRA suspects, and thus does not preclude alternative measures for most perpetrators, the specific case for dropping the ICC warrants emphasizes that Kony’s personal participation is necessary to a peace agreement that will both save lives and facilitate the broader accountability scheme.  Is the ICC an appropriate venue to evaluate the merits of that argument?   Are the Court’s prosecutor and judges competent to assess the chances of Uganda apprehending Kony absent a peace agreement, or the probability that Kony will honor his side of the bargain?   How should the analysis balance the incommensurable goals of protecting human life and pursuing criminal accountability?   One irony of a more permissive complementarity test is that it requires adjudicating these difficult determinations through precisely the sort of conventional trial procedures that Mark would deemphasize for more traditional questions of criminal guilt and innocence.

Once the door to compromise has opened, moreover, there is no obvious stopping point. There may be situations where the best case scenario falls short of even Mark’s relatively deferential standards.   For example, deference to a dictator’s imposition of blanket amnesty paired with some minimal truth-telling process might be necessary to prevent imminent atrocities, even though the arrangement might fail some of Mark’s preferred criteria, such as those pertaining to good faith and democratic legitimacy.  Should the specific guidelines still constrain in that circumstance, or should the Court revert to a general choice-of-evils analysis?  To some degree, the ICC can protect itself against misjudgment by affording states ever broader deference to judge these matters by themselves, but doing so risks ignoring that the ICC exists in large part to impose limits on state discretion.

Otherwise, I agree with Mark that we should resist simplistic dichotomies between law and politics, both with respect to the ICC and otherwise.   I also agree with many of his more specific observations along these lines, several of which I make or at least hint at in my Article.  (I will say parenthetically, however, that I am not convinced the evidence of Ugandan control over the ICC is quite as strong as Mark suggests).  Part of my argument is that a more accurate account of the ICC’s political authority raises special problems for the Court given that the ICC’s standard justification-invoked repeatedly by its supporters, prosecutor, and judges-so emphatically rejects the idea of the ICC as a political actor.

I also appreciate and agree with Mark’s observations about the Security Council.  In general, I am focused less on the Council’s de jure authority (which I acknowledge) than on the body’s ability to address the ICC’s legitimacy deficit.  If the complementarity determination exceeds the ICC’s own institutional abilities, then perhaps more active Council guidance should be welcomed rather than feared.

Many thanks again to the Virginia Journal of International Law and Opinio Juris for organizing what, for me at least, has been a stimulating and thought-provoking exchange.