Emerging Voices: Incorporation of Plural Realisations of Justice within the ICC System

[Justin S. Yang, PhD Researcher at King’s College London; LL.M at Leiden University.]

The International Criminal Court (ICC) projects a legal framework that is unique from the prior expressions of international criminal justice. In the construction of its Statute, in particular through the system of complementarity, the Court embodies the potential to actualise a horizontal and communitarian system of justice; rather than mandating a singular perspective of law in a vertical hierarchy, the ICC framework is designed to accommodate the inherent plurality of its international membership.

Tracing the development of international criminal justice institutions in the 20^th century has illustrated that this project has been in oscillation between peak periods of heightened inter-state cooperation and trough periods of resistance to encroachments on Westphalian sovereignty. The respective institutions that were established following World War I, World War II, and the Cold War have predominantly reflected the interests of only the particularly powerful states, albeit under international communitarian rhetoric.

Prior to the ICC, exercises in international criminal justice were exclusively facilitated first by the key multinational states of the post-war Allies, and later by the P5 of the UN Security Council. Rather than devising a new justice system that could be compatible with sovereign equality and the multiplicity of legitimate legal systems on the international plane, the post-war multinational bloc opted to adopt the vertical trial-based nature of Western domestic criminal systems. In other words, these judicial institutions, acting on behalf of the multinational leadership, presided at the apex of their respective scope of adjudication, in the same way a sovereign reigns supreme in its domestic system. Mirroring the capacities of the sovereign, these international judiciaries were unchallengeable, and arbitrarily made claims to various laws, as understood and accepted by them, onto diverse heterogeneous situations. In this penetrative hierarchy, sovereign boundaries and the indigenous legal systems of the subject state were explicitly disregarded and disapplied by the adjudicators. Therefore, diverse circumstances, local peculiarities, and contextual relevancies, all of which could materially affect the process of adjudication and determination of culpability, failed to be considered. The crimes were analysed solely through the perspectives of the multinational victors.

The ICC marks a departure from this tradition of vertical justice. The democratic legitimacy inherent in its treaty-based creation, and its central tenets of independence and impartiality has, in theory, separated criminal adjudication from overarching political agendas, including that of the UN Security Council. The symbiotic relationship between the Court and its member states, within the complementarity regime, has allowed for a horizontal, stateless, and impartial system of justice to exist over the global community. Being complementary to national systems means that the Court preliminarily defers to a state’s sovereign prerogatives to exercise criminal jurisdiction over international crimes. This prerogative is perceived as a duty of every state (Rome Statute, Preamble). Upon failing this duty at a standard deemed acceptable by the Court, the case may then be admitted into the ICC docket. State proceedings are therefore inherently underpinned by the implicit threat of the Court ‘seizing’ the case, if the framework of preventing impunity (Rome Statute, Article 17) is not satisfactorily upheld.

Complementarity is designed to balance the respect for sovereignty with the overarching objective of preventing forms of impunity. The Court scrutinises factual circumstances of whether a state with a duty to prosecute is unable or unwilling to conduct genuine proceedings. As it is an operative mechanism to be applicable in every diverse situation internationally, the internal components of complementarity are entirely based on discretionary determinations of the Court. In effect, this keeps the complementarity regime extremely flexible, but sacrifices legal certainty and consistency in application. The discretionary nature also makes it difficult for the state to challenge the Court’s determinations.

The concern is that this balancing mechanism may be used by the Court to create a de facto legal singularity, and indirectly implement a vertical hierarchy like that of its predecessors. This could be achievable by the Court admitting and re-adjudicating domestic cases that do not mirror the ICC legal system. In other words, the rich legal plurality, which this horizontal justice system purports to accommodate, would simply be overruled in favour of its internal perspectives. In contrast, complementarity could also be used to strengthen the legal plurality of the international community. The Court imposes a minimum standard requirement on domestic investigations and prosecutions of international crimes. Central pillars of criminal justice, such as legitimacy, impartiality, and transparency, as well as the explicitly enumerated crimes in its Statute, are non-derogable, and must be upheld by states in all circumstances. However, beyond this ‘lowest common denominator’ approach, each state is theoretically permitted to incorporate contextually relevant factors into the proceedings, such as the local heritage and indigenous legal cultures. In doing so, the state would be upholding its commitments to the ICC system in preventing impunity, while forging justice that reflects its legal and cultural identity. This enables the concept of justice to be localised, and resonate with the community most affected by the crime, rather than only the legal community in The Hague.

As concepts such as justice and impunity may vary from state to state, and culture to culture, the Court’s minimalist approach to domestic proceedings may prove to be the most effective method in realising its organisational goals of international criminal justice. Justice, in this context, would be taken to reflect the experience of closure as desired and felt by the respective local community. The challenge in the future, therefore, is to empirically investigate what forms of justice could exist in the diverse communities, and crucially, what degree of deviation the Court is prepared to accept. Such explorations are necessary precursors in understanding and facilitating a true system of horizontal communitarian justice.

How can this be realised? The mechanics of complementarity are the central links between national systems and the ICC. Therefore, it establishes the parameters within which pluralist discussions must take place. As it is a discretionary concept, and subject to developments, there are multiple discussions on how complementarity should be operationalized. In his critique of Kevin Jon Heller’s sentence-based theory of complementarity, Darryl Robinson proposes an understanding of complementarity that focuses on the quality of the process undertaken by the state. He advocates that in circumstances where the Court would effectively be overriding sovereign decisions, a more holistic and comprehensive analysis is necessary, rather than exclusively relying on technical factors such as the classification of the charges used by the domestic judiciary (charge-based theory), or the adequacy of the sentence produced after the domestic trial (sentence-based theory). In practice, the Court would monitor the domestic processes being undertaken in a given situation. If there is evidence that suggests that the processes are not genuine, or are conducted at an unacceptable standard of quality, the Court may then move to admit the case. However, if the domestic processes were deemed as genuinely conducted at an acceptable quality, the Court would prima facie be satisfied, and would not interfere in that state’s pursuit of justice.

This formulation of complementarity would enable possible incorporations of pluralism within state proceedings, insofar as they satisfy the prerequisite conditions. This would necessarily mean that the diverging legal perspectives and opinions of national systems, from that of the ICC, would not automatically constitute grounds for admissibility. The caveat is that the state must implement the Court’s minimum standards, although domestic legislations may provide plural interpretations and applications of these as well. Member states would then be free to develop their own cultural heritage and legal identities without being wary of the implicit threat of ICC involvement. There would then be no inclination to mitigate this implicit threat by unnaturally modifying their domestic systems or legal perspectives to appease the ICC.

Recent jurisprudence in The Prosecutor v. Saif Al-Islam Gadaffi and Abdullah Al-Senussi has demonstrated that complementarity is still an unsettled and organic concept, susceptible to future ideologies and practices of the Court. The existing jurisprudence has demonstrated that the ICC has materially grappled with domestic pluralism only as it relates to the technical classification of the charges of the crime. The same person/same conduct test has facilitated this charge-based pluralism in the current framework, in that domestic judiciaries are not formally obliged to use international classifications of crimes, and may use their own national labels. Sovereign decisions to not use international classifications cannot prima facie constitute grounds for admissibility (paras 118-122). This degree of permitted pluralism, however, is superficial and technical, in light of the overall project of forging justice as appropriate for the affected community at an international standard.

In light of the current turbulent geopolitical climate, and the increasing resistance of many states to the ICC system, an open discussion on facilitating pluralist pursuits of justice may provide fresh avenues to reinforce deference for sovereignty, while simultaneously keeping the horizontal system of international criminal justice alive.