Punishing Atrocities Symposium: Selectivity, Goals, and the Legitimacy of International Criminal Law

[Margaret deGuzman is Professor of Law at Temple University’s Beasley School of Law. This post is part of our Punishing Atrocities Symposium.]

In Punishing Atrocities Through a Fair Trial, Jonathan Hafetz makes important contributions to debates about the legitimacy and effectiveness of international criminal law’s institutions.  In particular, the book highlights the tensions between the global values of fairness and accountability for international crimes.  While Hafetz generally paints an optimistic picture of the progress international courts have made in finding the right balance, he also offers important insights about the challenges they continue to face and how they might address them.

In this post I will focus on one of the most important challenges Hafetz addresses in the book: the inevitable selectivity of international prosecutions.  As Hafetz points out, “[t]he selection of situations and cases for prosecution remains one of the most intractable challenges facing the ICC and other international criminal tribunals.” (142).  Hafetz provides a cogent description of the main facets of this problem and how it has played out in international criminal law’s institutions.  He explains how selectivity impacts upon the legal, moral, and sociological legitimacy of international criminal law’s institutions.  Citing studies conducted in the domestic law context, he show the importance of procedural and distributive fairness to legitimacy, in particular, perceptions of legitimacy (the sociological aspect), and argues convincingly that this effect is magnified at the international level.  Finally, the bulk of the book’s discussion of selectivity is devoted to suggestions about how the problem can be addressed.  Hafetz’s central argument is that international criminal law’s institutions should: “mitigate criticisms surrounding the fairness of their selection decisions and bolster their legitimacy by drawing on the power of expressive prosecutions to entrench the norm that no person is above the law . . . .” (157)  For instance, the ICC should prosecute persons accused of international crimes from powerful states such as the U.S. and Russia to avoid perceptions of distributive injustice and the concomitant negative impact on the Court’s legitimacy.  (159)

In this post I will suggest that although I wholeheartedly agree that international courts should promote the principle of equality before the law, the problem of selectivity cannot be fully addressed without a deeper inquiry into the goals and priorities of international criminal law’s institutions.  As Hafetz writes, the selectivity of international criminal law’s institutions is potentially problematic for both their normative and sociological legitimacy.  Prosecuting persons from powerful states would likely improve the ICC’s sociological legitimacy, but would not necessarily promote its normative legitimacy, depending on one’s view of the Court’s purpose.  Currently, perceptions of the ICC’s legitimacy are suffering, primarily due to the narrative that the Court is biased against Africa, as well as that the Court prosecutes mainly non-state actors.  Prosecuting military leaders from the U.S. or Russia would likely help to address this perception.  The ICC’s more fundamental problem, however, is that it is unclear what goals and priorities it ought to pursue through its investigations and prosecutions.  To enhance its normative legitimacy, this question must be addressed.

Like Hafetz, I endorse an expressive view of the ICC’s central mission.  Due to its resource constraints and other institutional limitations, the Court is simply not capable of making significant contributions toward many of the goals traditionally associated with criminal justice, such as retribution, individual and general deterrence, incapacitation and rehabilitation.  On the other hand, the ICC’s global stature makes it particularly well-placed to express norms through exemplary prosecutions. 

This raises the questions what norms should the Court seek to express and to whom should it seek to express them?  With regard to the audience question, Hafetz points out that: “The selection of situations and cases for investigation and prosecution . . . conveys significant information about an international criminal tribunal’s priorities to multiple audiences at the local, national, and international level.” (150-51)  The problem is that these audiences are not necessarily interested in the same messages.  Local audiences may want to hear the ICC condemn the persons and crimes that affected them most directly.  National audiences, defined in terms of the governing elite, may also desire one-sided messages of condemnation; but defined more broadly, may benefit from a wider distribution of blame.  Meanwhile, the international community may be less interested in the ICC’s messages regarding the particular circumstances of a given situation, preferring the Court to focus on the development and promulgation of norms of general application around the globe.

This potential for conflicting goals and priorities, particularly as between global audiences on the one hand, and local or national audiences on the other, requires the ICC to choose.  The Court’s failure thus far to do so has meant that it has been unable to manage the expectations of each audience, resulting in inevitable disappointment, and undermining its legitimacy.  Local audiences in situation countries have asked why the Court has prosecuted so few individuals, and failed to pursue government perpetrators.  Meanwhile, global audiences, from activists to academics and diplomats, question the ICC’s non-prosecution of persons from powerful states.

Implicit in Hafetz’s argument that the ICC should focus on expressing the message that no one is above the law, especially by pursuing perpetrators from powerful states, is an endorsement of a global focus for the ICC’s work.  The ICC should not select situations or cases with a view to fulfilling the goals or expectations of local or national audiences, but rather should speak to the global community about that community’s values.  Although this view runs contrary to the victim-centered narrative that underpins much of the scholarship and activism around the Court, it is one that I also endorse.  It is important to the ICC’s legitimacy that it pursue this global community-centered expressive agenda, and that it do so explicitly.  Transparency about the institution’s goals and priorities will foster dialogue between institutional actors and audience members that, over time, will help to hone the ICC’s mission and thus bolster ICC’s moral legitimacy.  Such transparency will also help to manage the expectations of the Court’s various audiences, thereby promoting its sociological legitimacy.   The importance of equality before the law is one important global norm for the Court to convey.  To facilitate the search for other such norms, the Court and its supporters should actively promote dialogue aimed at identifying the institution’s central goals and priorities.