ICC Prosecutor Symposium: Against Modesty at the ICC

[Tom Dannenbaum is an Assistant Professor of International Law at the Fletcher School of Law and Diplomacy. Make sure to also have a look at Geoff Dancy’s post over at Justice in Conflict: Evaluating the ICC’s Chief Prosecutor.]

Almost two decades into its existence, the ICC is ensnared in a spiral of deteriorating credibility and legitimacy. Reversing that decline will be among the most important items on the new Prosecutor’s agenda. It is a challenge that implicates directly the Court’s relationship to power. At the most basic level, the new Prosecutor must decide whether to approach that relationship from a posture of modesty or from one of audacity.

To that end, the successful candidate would do well to distinguish the Court’s credibility problem from its legitimacy problem and to consider how the two relate to one another and to the purposes of the Court. Doing so should lead her/him to reject modesty.

For the purposes of this analysis, the ICC’s “credibility” is its real or perceived capacity to maintain a stable and efficient case throughput involving full and fair hearings, a comprehensive review of the evidence, and verdicts supported by that review. Credibility, in short, is about whether the Court can get done the kinds of things it is supposed to get done. “Legitimacy,” on the other hand, refers to the Court’s real or perceived moral authority to do those things—in particular, its moral authority to issue criminal punishment.

Declining Credibility

The ICC’s credibility is at a nadir. Investigations have stalled, arrest warrants have gone unfulfilled (some for many years), several cases have collapsed before completion, and the few that have been processed to completion have been dogged by controversy. A key (though not exclusive) reason for this anemic record is the Court’s dependence on the cooperative application of state power. Without it, accused persons are not arrested or transferred and ICC investigators face serious obstacles to accessing crime scenes, collecting real and documentary evidence, and securing the testimony and protection of witnesses.

Examples of state noncooperation abound. For years, State Party after State Party refused to execute the arrest warrant for Omar al-Bashir, despite multiple chambers’ insistence on their duty to do so and occasional referrals to the Security Council when they did not. Sudan’s own resistance ultimately forced the Office of the Prosecutor (OTP) to “hibernate” the investigation into alleged crimes in Darfur (though revival now looks possible, thanks to a significant change in the interests of the Sudanese government). OTP has accused Kenya of obstructing and undermining investigations into the latter’s officials so severely as to precipitate the collapse of the cases in that situation. The African Union—the regional organization with more ICC States Parties than any other—has endorsed state resistance and even adopted a policy of collective withdrawal from the regime. Burundi and the Philippines have responded to the prospect of investigations of their officials by withdrawing from the Rome Statute. Powerful non-parties, such as the United States and Russia, have become increasingly hostile as the prospect of ICC investigations of their officials has grown. The former’s overt resistance was an explicit factor in Pre-Trial Chamber II’s infamous (and recently reversed) decision not to authorize an investigation in Afghanistan.

Responding to the Court’s apparent impotence in the face of such resistance, some have advocated a posture of modesty. On that view, OTP should pursue investigations and cases only where the conditions are propitious for evidence gathering, witness participation, arrests, and effective case processing. The prosecutorial grandstanding that leads to “spectacular failure” would be eschewed. Credibility would be restored instead through “modest success.” Slowly, the ICC would establish itself as a serious court, where criminal justice gets done.

The lure of that promise is obvious. But “modesty” risks serving as a euphemism that obscures what would be sacrificed. A modest Prosecutor would be one who is supplicant to state power. Some accept this, arguing that the ICC may have to “own” being a court for the prosecution of rebel warlords. It is what the Court can get done, the thinking goes, so, though the lesson may be “unpalatable,” it is what it should do. Partial and political criminal justice that aligns with the objectives of interested states is, on this view, “better than no justice at all.”

Deteriorating Legitimacy

The problem is that, in the service of regaining credibility, this approach would deal a fatal blow to the Court’s already diminished legitimacy. The existing legitimacy deficit derives from the claim that morally arbitrary factors determine where the Prosecutor investigates and who gets charged in the ICC system. In short, the Court responds to power, not principle; it pursues alleged perpetrators when they lack political capital and ignores them when they have it.

This critique can arise within a situation, as in the Court’s first two investigations, which have focused exclusively on rebel actors, despite credible allegations of significant crimes perpetrated by agents of Uganda and the DRC. However, the distribution across situations has been even more damaging. It took a decade and a half for OTP to open an investigation outside of Africa. Still today, with investigations in Georgia, Bangladesh/Myanmar, and now Afghanistan, the Court has yet to issue an arrest warrant or a summons to a non-African. In part for this reason, the Court has been criticized as neocolonial in posture—an institution focused on “civilizing” a continent through delivering criminal justice to it, while ignoring, and thereby obscuring, crimes perpetrated by those with access to power, particularly in the Global North.

The role of the Security Council has exacerbated this charge. The investigations in Libya and Darfur exist because each of China, Russia, and the United States allowed them to go ahead. As non-parties to the ICC Statute who wield vetoes on the Council, these states are able unilaterally to shield their agents from the Court’s jurisdiction by exercising the very power they held in check to enable jurisdiction over Libyan and Sudanese state agents. Their commitment to do just that is manifest both in their refusal to ratify the Rome Statute and in the clauses in the Libya and Darfur referrals excluding external state agents acting pursuant to Security Council authorization from the Court’s reach.

The apotheosis of the legitimacy critique, however, came via the PTC decision on Afghanistan. Standing in stark contrast to any prior decision (including, in particular, the decision to authorize an investigation in Burundi, despite that state’s imminent departure from the ICC regime), the unanimous PTC neglected even to attempt to disguise the Court’s supplication to U.S. power. The comprehensive reversal of that decision by the Appeals Chamber earlier this month was an essential first step in restoring the legitimacy squandered in that moment. Much will now depend on how that and other investigations are conducted.

Taking legitimacy seriously

To adopt a posture of modesty would mean prioritizing the Court’s capacity to deliver some justice, while dismissing as utopian those who advocate pursuing justice against the powerful. An advocate of modesty may even insist that the failed pursuit of actors with political capital would only expose an unequal impunity that is itself corrosive of the Court’s legitimacy.

It is true that investigations of powerful defendants have a low probability of success and may provoke a backlash. Raising expectations unrealistically may burden survivors. However, the modest alternative is not compelling. It would achieve little in the narrow category of rebel prosecutions that it would endorse, and it would be counterproductive to the viability of Court action outside that narrow range. Moreover, it would eviscerate the Court’s capacity to perform the expressivist functions of condemnation and non-acquiescence. Ultimately, it would call into question the point of having the ICC in the first place.

Focusing only on investigations that align with immediate state interests may elicit short-term cooperation. However, those are the cases most likely to be viable in domestic courts—whether in the host state (perhaps with external support), or in a third state. The ICC’s marginal contribution in such contexts is likely to be minimal. Furthermore, there is only minimal evidence of the ICC’s capacity to deter non-state actors from committing crimes through the fear of prosecution.

Of course, cooperation can also be elicited in contexts where state interests are not immediately aligned with the investigation in question. States may cooperate, or at least refrain from overt obstruction, in order to signal to international partners and domestic constituents their fidelity to international law and legitimate international institutions, even when doing so does not advance their immediate interests (at least, as long as doing so does not fundamentally imperil them). Others may be influenced by what Jo and Simmons have termed “social deterrence”—the impact of the ICC regime in creating the conditions under which states whose agents violate international criminal law risk negative political consequences outside the judicial process, with the fact of criminality providing the focal point for oppositional mobilization.

In principle, advocates of modesty would not be opposed to taking advantage of such mechanisms of cooperation. However, modesty may render those very mechanisms unavailable. The Court’s legitimacy is central to what makes the fact of criminality a focal point and cooperation with the ICC a valuable signal. Where legitimacy is lacking due to a systematic failure to challenge the powerful, the force of those effects diminishes. States can more effectively reframe their refusal to cooperate as justified resistance against a neocolonial institution and thus avoid the political and social costs of obstructionism or violation.

Consequences aside, there is also a deeper point of principle at stake. An increasingly common understanding of international criminal punishment focuses not on its impact (deterrent or otherwise) but on its role as mechanism for moral expression. On this expressivist account, the ICC is an agent of international condemnation and non-acquiescence.

Condemnation is an agent-relative normative practice. It requires standing to blame. One of the ways that standing can be surrendered is when the condemning agent is complicit in a systematic, but morally and legally arbitrary shielding of those who are engaged in the same or worse conduct as those it condemns. This point is often lost in rebuttals of the tu quoque argument. That argument has bite not as a defense of the accused, but as a rejection of the moral standing of the court before which that individual is being tried to be the one to condemn her or him. It is not a reason why the accused ought not be punished; it is a reason a specific court cannot inflict that punishment with any condemnatory force.

In addition to lacking standing to condemn, an ICC driven by modesty would also be incapable of expressing non-acquiescence through punishment. Quite the contrary; the strategy of modesty would entail systematic acquiescence to the crimes of the powerful. In both respects, then, modesty would subvert the ICC’s viability as an agent of moral expression.

The value of risking it all  

The claim here is not that prosecutorial audacity vis-à-vis power is guaranteed to extricate the ICC from its spiral of deteriorating legitimacy and credibility. The Court’s challenges are broad and deep. They may not be soluble. A Prosecutor who pursues justified investigations against powerful actors would run a very high risk of failure.

However, failure is not guaranteed. A bold posture may also restore some of the Court’s vanishing legitimacy, with the possibility that a broader range of actors would be willing to support and facilitate investigations and execute warrants. It just might, as did the International Court of Justice’s decision in the Nicaragua case, restore the Court’s reputation sufficiently to draw renewed support from actors that have turned against it. It may facilitate political mobilization and pressure in those states in which criminal cases are obstructed, thus generating change even in the act of failing.

And even if prosecutorial audacity were to result in spectacular failure, the Court and its agents would at least have failed doing something that was worth the effort. The modest alternative would seek to preserve the Court simply for the sake of preservation—because there is a sadness associated with destroying things we have created—not because its survival actually matters.