A Response to Sasha Greenawalt by Mark A. Drumbl

[Mark A. Drumbl is a Professor at Washington and Lee University School of Law]

In Complementarity in Crisis:  Uganda, Alternative Justice, and the International Criminal Court, Professor Alexander Greenawalt strikes a cautionary note.  He underscores that the ICC cannot on its own effectively serve transitional justice interests.   It needs help.   In the end, Sasha concludes that “the Ugandan peace process reveals the [ICC] to be a promising but unstable institution, one whose legitimacy may ironically depend on help from external stakeholders, including the very political actor – the UN Security Council – whose importance the Rome Statute was designed, in part, to diminish.”

I am broadly sympathetic to Sasha’s concerns; and in agreement with his analysis and of the important discursive space he creates within the field.  However, at times I had difficulty discerning the thread of his argument.   Other than generically suggesting that Security Council “guidance … may be desirable in a great number of cases,” I also hope that Sasha might provide more in the way of practical guidance regarding how the ICC should instantiate its complementarity principle, which animates several key portals of the Rome Statute, in particular admissibility (Article 17) and interests of justice (Article 53).

I think it important not to essentialize the Security Council as being all about politics.  The Council can act in a quasi-judicial capacity, whether it comes to declaring an act as violative of Article 39 of the Charter, or deliberating on the kinds of forcible and non-forcible violations that might be apposite.  Moreover, it is important not to overstate the ICC’s supposed independence from the Security Council.   After all, the option of referral from the Security Council remains; as do Article 16 deferrals.  Looking ahead, were a crime of aggression eventually to be defined in the Rome Statute, Security Council authorization foreseeably could be a prerequisite to the exercise of jurisdiction over this crime.

Nor is the ICC all about law. Whatever the intentions of the drafters of the Rome Statute, states like Uganda and the DRC have neatly managed the ICC, just like Rwanda has neatly managed the ICTR, to focus on the atrocities committed by rebel groups only (or in the case of Rwanda, of the Hutu génocidaires only).  President Museveni does well at playing with the ICC, co-opting it, massaging it, shunning it, and integrating it into national life as a tool of domestic politics.  And the ICC is willing to dance with him, even haltingly staccato. After all, without his political cooperation, there would be no prosecutions or, in the event any defendants are brought into custody in the Ugandan situation, limited ability to generate the requisite evidence to convict.  Regardless of the etymology of the institutions (namely, whether created by international treaty or Security Council resolution), the role of their chief prosecutors is much more about politics than it is about law. Although Sasha is right that the ICC may involve legal actors implementing legal rules, I would add that in this process the ICC often acts as a political actor implementing policy. Furthermore, the ICC represents the zenith of liberal legalism as a response to terrible communal violence.  In this regard, and to crudely paraphrase Cardozo, the ICC is a creative project, not a voyage of discovery.

Sasha is skeptical of the value of ex ante guidelines to clarify how complementarity might inform the admissibility of cases.  He argues that guidelines are not useful. He needs to make a stronger case here. I have argued elsewhere, in a point that Sasha discusses, that a light touch to complementarity (as articulated through a qualified deference standard), would better serve overall justice interests.  In any event, developing guidelines, even simply to frame a conversation, would promote transparency, dialogue, and some predictability.  Each of these elements is relevant to the legitimacy of law or policy, though certainly excessive rigidity or adherence to faulty guidelines is undesirable.  These guidelines could equally apply whether the Security Council or the ICC is the entity tasked with making the admissibility determination. A broader analytic heuristic that accords greater deference to the local might expand our vocabulary in assessing the merit of post-conflict accountability. Currently, our focus is narrow and hews closely to the singularity of trial justice. Instead, we should push for a much broader lexicon of transitional justice.

Sasha delicately hints at this near the end of his Article, but I think there is more to the expansion of international criminal law than simply the inexorable épanoiussement of substantive law.  International criminal lawyers have a vested bureaucratic interest in the growth of the field. Expansion marketizes our skills and expertise, which are now rendered a necessary element of every post-conflict transition everywhere.  We lawyers have become indispensible.  Not an indispensible nation in a Clintonian sense, but certainly an indispensible epistemic community. Unless this indispensability is challenged, it remains doubtful to me that the ICC ever will pursue a light touch to complementarity and, in turn, alternative justice.