Emerging Voices: Regrouping for Justice–Could Regional Inter-Governmental Organisations Save International Criminal Justice?

[Owiso Owiso is a Doctoral Researcher in Public International Law at the University of Luxembourg and a member of the PhD Academy of the Cross Cultural Human Rights Centre, VU Amsterdam.]

Introduction

With the celebratory dust finally settled, stakeholders are beginning to take stock of the performance of the greatest achievement of the international criminal justice movement, the permanent International Criminal Court (ICC). Tough questions are now being asked not only of its performance, but also of the administration of international criminal justice generally. After seventeen years, the Court’s record is chequered: it has concluded eight first-instance trials; convicted eight persons (three for international crimes and five for crimes related to the administration of justice) and acquitted four others; abandoned prosecution of two individuals and vacated charges against two others and discharged them amidst claims of witness tampering and state non-cooperation; saddled itself with multiple arrest warrants whose execution in the foreseeable future is unlikely; opened eleven investigations and ten preliminary examinations with no progress in sight; and has one ongoing trial and three pending confirmations of charges. Some of these have more to do with states’ obstruction or non-cooperation than with the Court’s own failings and do not reflect on the performance of all the different organs of the Court. However, prosecutorial and/or judicial miscalculation cannot necessarily be ruled out. Notably also, while acquittals reflect the Court’s commitment to rigorous criminal law standards, some have read prosecutorial and judicial dysfunction in these acquittals (See here and here).

The Court has also been on the receiving end of the re-emergence of conservative conceptions of state sovereignty. Threats against the Court by some states have led to speculation that this hostility might have influenced the Court’s controversial decision not to authorise an investigation into Afghanistan. The Philippines and Burundi have also since withdrawn from the Court’s statute after the opening of a preliminary examination and an investigation into them. While the above are not necessarily of the Court’s own making, the court has nonetheless also scored more than a few own goals: accusations of gross mismanagement of the frozen assets of Mr Jean-Pierre Bemba Gombo while in detention (he was later released); the dramatic case of Judge Kuniko Ozaki accepting and later resigning a diplomatic appointment; Judge Marc Perrin de Brichambaut, one of the Court’s vice-presidents, flippantly admitting to disregarding procedural rules that he (and his colleagues) disliked, and while at it, also making unsavoury remarks about counsels and African state parties; the curious case of judges suing their own court for better pay; and accusations of misconduct by its former prosecutor.

With a record this blighted, calls are now mounting for reform of the Court (see, for example, here and here and here). However, reforms that can significantly impact the court’s performance would most certainly require the consent of a majority of state parties, and this is unlikely in the current political climate. While the ICC is not a synonym for international criminal justice, the wounded state of the former is emblematic of the current state of the latter. Consequently, appetite for global-level administration of criminal accountability is waning. What then is the way forward? I suggest in this post that it is perhaps time to reconsider the political and administrative architecture of international criminal justice and explore an active and direct role for regional inter-governmental organisations (RIGOs). This requires rethinking the field’s approach and ‘de-globalising’ international justice. While there is quite some commentary on regionalisation of international justice (see for example Jalloh and Burke-White), the role of RIGOs remains underexplored.

A Shifting Playground?

Accountability for international crimes has, so far, been administered either nationally by states or globally by international mechanisms. In both instances, the primary administrative actors have been: directly affected states, with or without support from inter-governmental organisations; third states exercising universal jurisdiction; the United Nations; and the ICC, the latter two being the most prominent actors in these processes. The engagement of RIGOs has been quite invisible and tepid at best. This is understandable if one considers that RIGOs are often primarily established for economic and/or political integration and not for international justice. Further, the fact that states have traditionally been considered as the main subjects of international law has meant that international criminal justice discourse has often focused on states, with RIGOs not featuring as obvious subjects of this discussion.

This traditional hands-off approach by RIGOs to accountability for international crimes and the concentration of accountability mechanisms at the global level are, however, increasingly becoming untenable. The emergence of economically and politically active inter-governmental organisations organised on a regional basis is challenging the classical conceptions of state sovereignty with their strong attachment to territoriality and state monopoly over the exercise of political authority. With globalisation comes interdependence and the need for some level of governance at the regional and global level, often in the form of inter-governmental organisations with reasonable control over some common actions previously governed almost entirely through domestic prerogatives.

RIGOs are gradually emerging as assertive organisations for states’ collective political bargaining. Of course, this is not to say that state sovereignty is retreating to the background in international affairs. States remain the principal players here. However, sovereignty, as asserted by Kofi Annan, must ‘be understood as contingent and conditional on states’ taking responsibility for the security of their own people’s human rights’ and not as ‘a shield behind which gross violations of human rights can be committed’. While state sovereignty remains the pillar of international law and politics, states are inevitably entrusting hitherto state-monopolised functions to RIGOs. Inevitably, and perhaps inadvertently, any belief of states’ exclusive authority is challenged by the decision of states themselves to create and empower RIGOs. More optimistically, this commitment to limitations on sovereignty inherent in being members of RIGOs may itself be considered as an expression of, and not necessarily as a claw-back on, sovereignty.

RIGOs are increasingly metamorphosing from economic integration entities into active and influential political players deployed by states in negotiating international affairs and influence. The European Union (EU), for instance, is empowered by its constitutive instrument to bargain and conclude treaties with third states on behalf of its members in order to further common objectives, and has consequently adopted a common policy on foreign relations and security. The objectives of the African Union (AU) under its constitutive instrument also include promoting and defending ‘African common positions on issues of interest to the continent and its peoples’ and has indeed adopted a common African position. With this increasing assertive role for RIGOs, the traditional concentration of international criminal justice at the global level no longer seems tenable. With political influence comes (political) responsibility, hence a (potential) role for RIGOs in international criminal accountability. As states increasingly legally empower RIGOs as functional vehicles of collective bargaining, they should anticipate and appreciate the inevitable political, and perhaps even legal, responsibilities that result from such empowerment. Further, considered from an institutional and constitutional perspective, RIGOs are potentially more than mere vehicles for states’ collective action, but are also entities with a rule-based degree of latitude/autonomy and a value system relevant to international criminal accountability. Considering the current state of global politics, the success of accountability initiatives for international crimes will be influenced by the role played by RIGOs.

Evidence already suggests changing attitudes among RIGOs. Perhaps in an effort to assert authority over the validity of continental/regional responses to international crimes and to contribute to the definition of ‘what is law’ and what constitutes international legal standards, the AU, for example, is signalling a shift, albeit slowly, towards direct and active involvement, with most notable recent examples being: its role in the Chambres Africaines Extraordinaires au Sénégal; proposals for a Hybrid Court for Darfur and a Hybrid Court for South Sudan; cautious engagement with the Cour Pénal Spéciale de la République Centrafrique;and the proposed international criminal chamber within the proposed African Court of Justice and Human Rights. The EU, while not currently facing an urgent a situation as that facing other continental bodies largely because of the continent’s relative political stability, has itself reasonably engaged with international criminal accountability following the violent breakup of the former Yugoslavia, most recently its role in the Kosovo Specialist Chambers. The EU has also become the collective voice of the reaction of member states to international crimes committed elsewhere. The Organisation of American States, the Association of Southeast Asian Nations and the Arab League, while not exhibiting a shift towards active engagement as such, are themselves adopting policy positions on international crimes in their respective regions, albeit cautiously (see here, here and here).

Conclusion

With global-level administration of international criminal justice increasingly failing to inspire confidence and with most (post)conflict states still plagued by weak domestic systems that are unable to effectively pursue accountability for international crimes, an impunity gap is imminent if alternatives are not explored. In this post (which highlights my ongoing doctoral research), I have argued that with increasing political power and relevance of RIGOs comes (political) responsibility, and that the possible impunity gap highlighted above could very well be forestalled by harnessing this increasing political power and potential for collective political action to provide effective accountability for international crimes at the regional level. Additionally, this is a cosmopolitan and secular universalist challenge to classical assumptions of states as the sole subjects and drivers of international law, and an argument for international law as the ‘law of humanity’. This is not an ‘appropriate forum’ argument nor an endorsement of regional mechanisms over global ones. Rather, my argument is that there exists a significant and largely untapped potential in RIGOs to take a direct and active lead in accountability for international crimes at the regional level, and that there is utility in identifying and harnessing this potential. Recognition of the regional is not a rejection of the universal, but rather a fusion of local justice needs with a universal approach in order to achieve more responsive accountability.