Regionalization as a Blessing  or as a Curse? The EU and International Criminal Justice

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is Co-Editor-in-Chief of the Leiden Journal of International Law, Executive Editor of the Criminal Law Forum and project leader of the Jus Post Bellum Project.]

Introduction

International Criminal Justice is a tipping point. It is a bit like a scene in Woody Allen’s “Match Point” movie. The ball is in the air. It has hit the net. But it cannot quite decide where to go. It may tip to the one corner of the field, or the other.

There has been a lot of support for international criminal justice in past decades. The EU has been crucial in this regard. But there is also backlash and critique. Some wonder what’s the point of international courts and tribunals. The international community is good at creating new treaties and new institutions. But it seems to  be less good at devoting long-term attention and resources that are necessary to ensure that they are effective. Once a new institution is created, there is a feeling the job is done and that is time to move on.

After the ICC withdrawals, the question of the justification of international criminal justice is more acute than ever. Some might claim that the withdrawals are a sign that international criminal justice becomes more effective since it targets power politics. Other might say that we need to go back to the drawing board and reflect more critically on the foundations of our assumptions. Both arguments appear to have a grain of truth.

One crucial question is the role of regional organizations in international criminal justice. After the end of the Cold War, institutional development has quickly shifted from domestic to universal approaches. The role of regional institutions has long remained at the periphery.     Recently, much attention has been devoted to regionalization in the context of African critiques of international criminal justice, and the Malabo Protocol. While the Protocol has many problems (e.g., in relation to crime base, complementarity or immunities), there seems to be at least some support for the general assumption that regionalism can have benefits for international criminal justice enforcement.  Such advantages include geographical proximity to crimes, and the ability to reflect specific regional interests or priorities. In existing doctrine, some attention has been devoted to the role of regional human rights courts as “quasi-criminal jurisdictions”. But there are relatively few explorations of the role of the EU as actor in international criminal justice.

The EU counts undoubtedly among the strong champions of international criminal justice on the international plane. One of its unique strengths is that it has achieved some “unity in diversity”. All 28 EU member states are states to the ICC Statute. This allows EU members to act as a collective entity.

EU support for the project of international criminal justice cuts across institutions. The Council has enacted multiple legal instruments to strengthen national investigation and prosecution of mass atrocity crimes. Initiatives, such as the European Arrest Warrant, the European Evidence Warrant, the Framework Decision on the freezing of property and evidence, and the Framework Decision on the standing of victims in Criminal Proceedings, or the European Network of Contact Points are relatively unique on the international plane.

The EU was the first regional organization to sign an agreement on cooperation and assistance with the ICC in 2006. The European Parliament has been a strong supporter of international justice. Europeans have taken a lion’s share in the funding of international criminal justice. This is complemented by the important work of Eurojust, and of course, the broader network of the Council of Europe which extends beyond EU Member States.

The main achievements from a macro perspective are in my view two-fold.

First, European institutions have forged a certain alignment of normative preferences within the European legal space. This is an important achievement. Hardly any other regional bloc has gained a similar level of convergence, and approximation of national approaches.  Decisions under the Justice and Home Affairs Pillar have prompted various member States, like Belgium, Denmark, Germany, The Netherlands and Sweden to establish “specialized units” for the investigation and prosecution of international crimes.  EU member states score high in terms of implanting legislation. This suggests a positive correlation between EU membership and commitment to international criminal justice. The European Area of Freedom, Security and Justice remains imperfect. The EU can do better in terms of strategic coordination.  Some domestic jurisdictions feel that developments are so dynamic that it is difficult to keep up with the pace of transformation. But the degree of cooperation defies comparison.

Second, EU approaches have significantly contributed to “damage control” at the international level. Without the support of European countries, the ICC might have never seen the day in its current form. In the early years of the Court, the EU has taken a strong counter approach towards US policies towards international criminal justice. US approaches have navigated between objection under the Bush Administration to “smart power” approaches under Obama administration.

The EU has differed fundamentally. It has openly discarded US objections in a common position in 2003, while trying to foster a constructive partnership between the US and the ICC. The EU has defined guiding principles for bilateral non-surrender agreements under Art. 98 of the ICC Statute. Later, the EU members have been instrumental in securing Security referrals to the ICC in relation to Darfur and Libya, and supporting a Syria referral.

The EU approach may be characterized by three cardinal features: (i) “principled” pragmatism,  (ii) non-confrontational approaches, and (iii) a long-term vision towards international justice. These are virtues that are key to the success of international criminal justice.

In times like these, the EU serves more than ever as a fire brigade. Damage control is urgently needed. The voices of European members on the Security Council are crucial to avoid action that might hamper existing institutions. There is a need to speak up against unfair critique, and to counter false rhetoric.

Hard questions

At the same time, many hard policy questions regarding international criminal justice remain unanswered.

Interests of Member States and EU agents do not always converge. Normative ambitions do not always lead to satisfactory policy outcomes. There are open questions, under what circumstances EU engagement in relation to international courts and tribunals works effectively.

Existing practice suggests that EU action has produced certain beneficial effects in the European space. International criminal tribunals have had leverage in the Balkans due to the prospects of economic cooperation or EU accession. Many of the successes of the ICTY might not be explained without these incentives. Similar rationales might apply in the future to the Kosovo Specialist Chambers – which mark a unique a blend between regional and domestic approaches. But the prospects of justice investment are less certain in cases where such political incentives are missing.

In some cases, international criminal justice has hardened opposition. International criminal lawyers tend to see leaders like Milosević, Karadzic or Gotovina as individuals. Local populations are more inclined to see them as representatives of their community, their state or their political group. This has left frictions that will take decades to heal and that might require engagement beyond the closure of tribunals.

Second, the idea of “exporting justice” leaves mixed feelings. Justice and democracy are not public goods that can be transplanted. They need to be conquered. The EU has inserted ICC clauses in the revised Cotonou agreement of 2005, which applies to partnership agreements with African, Caribbean and Pacific countries. These clauses promote adherence to the ICC, by encouraging parties to take steps towards ratifying and implementing the Rome Statute and related instruments. This plea for universality is guided by noble intentions. But there is a certain mismatch between goals and effect. Experiences in situation countries have shown that compliance with international standards may remain superficial, or have counterproductive effects, if it is part of a mechanistic process that is based on external pressure or imitation. As Jelena Subotić has argued, justice may easily become  “highjacked” for other means.  There is a risk that international criminal justice becomes part of an international code, but is not internalized. Often there is one logical step missing, namely the need to translate international legal norms into the domestic environment and culture.

Some of the consequences are visible now. Certain members of the Global South claim that they never had a fully free choice when adhering to international justice instruments. The choice is rather, as Joseph Weiler noted in a different context, like the “Agree” button on the Microsoft Terms and Conditions in relation to software updates. Choice exists, yet it is de facto marginal. If external pressure fades, the incentive drops. There is thus an urgent need for better scrutiny of the negative side effects of ICC clauses.

Finally, the most difficult question is what type of justice international criminal justice should seek to promote. It is widely agreed that atrocity crimes require a holistic approach which includes criminal justice and transitional justice elements. This understanding is reflected in the 2003 Report of the UN Secretary-General and the 2013 EU Policy Framework on Support to Transitional Justice. The EU Policy Framework marks some progress in the sense that it helps to draw greater attention to transitional justice concerns in EU policies.  But it remains to some extent entrenched in mainstream discourse and clichés.  Critics have argued that the approach towards global justice may reduce alternative conceptions of justice, or entrench pre-existing inequalities and thus deliver less justice. There is often a “Damned if you, damned if you don’t” dilemma. Whatever ever choice is taken, is likely to have some negative repercussions. These dilemmas are real dilemmas, with no easy answers. They need to be articulated and confronted openly, rather than silenced in justice policies.

The way ahead

What are the challenges for the future?

There are a few areas in which further progress might be made. International courts and tribunals have drawn attention to various measures that might strengthen existing international institutions. They include (i) greater support for freezing of assets, (ii) more peer to peer exchanges among practitioners, (iii) better cooperation in relation to interim release or enforcement of sentences, (iv) support for victims and witnesses, and (v) strengthening of outreach, even after the closure of institutions or situations.

Second, the role of domestic jurisdiction is likely to increase in the future. Domestic procedures are not necessarily adjusted to the needs of mass atrocity cases. Experiences, such as the first trials under the German Code of International Crimes, have shown that even well-established legal systems may face challenges in holding domestic trials under universal jurisdiction, and in addressing sexual and gender based violence. International jurisdictions may be step ahead in this regard.

Lastly, there are some macro choices that might need to addressed in future justice strategies. I will mention three.

The first issue is the connection between international criminal justice and transnational crimes. These two areas are currently treated in isolation, and through different regimes and institutions, although they are interconnected, and sometimes based on comparable types of network criminality. Reducing this divide may offer advantages to both fields.

Second, the interconnection between international criminal justice and development strategies deserves closer attention. International criminal courts are not a development agents, nor are development actors necessarily best agents for accountability. But international criminal justice requires long-term engagement that current institutions are struggling to deliver. There are many areas in which development policies may consolidate justice in situation countries after the closure of cases.  These synergies need to be explored more fully.

The third issue is the role of regional mechanisms in the investigation and prosecution of international crimes. ICC jurisdiction will remain limited in the foreseeable future. The role of hybrid  courts is likely to increase. But there might be a case for further regional mechanisms. This option is just beginning to be explored. It might mitigate some of the existing critiques against international criminal justice. The current challenges of global institutions might thus present an opportunity to do better.