Justice as Message Symposium: The Selectivity of International Criminal Justice

[Priya Urs is a PhD Candidate at the Faculty of Laws, University College London, where her doctoral research addresses the application of the gravity criterion for admissibility at the International Criminal Court. (priya.urs.17@ucl.ac.uk)]

Carsten Stahn’s Justice as Message introduces and examines the myriad manifestations of expression in the field of international criminal justice. The contribution of the book is its ambitious inquiry into the use of expressivism as a means to identify the ‘contours, goals, and justifications of international criminal justice’ in the broadest possible terms (p.2). In light of the increasing invocation of expressivism to justify both action and inaction at international criminal justice institutions, and in the absence of an agreed justification for international criminal justice, whether in retributive, preventive or restorative terms, a study of the contribution of expressivist theory is timely. The various facets of international criminal justice the book explores are the criminalisation of conduct (‘norm expression’), the establishment of international and domestic criminal courts for the prosecution of international crimes (‘institutional expression’), the conduct of the trial (‘procedural expression’), and sentencing (‘remedial expression’). The concluding chapter of the book gathers these various threads together to scrutinise the extent to which international criminal justice may be considered to be ‘expressivist justice’.

Among the many interesting questions raised by the book is the question of whether expressivism provides ‘a framework to understand how a comparatively limited system of justice … may be socially significant’ (p.7). The selectivity of international criminal justice is raised at various points throughout the book, but it is not addressed as a standalone subject. It is the aim of this post to highlight the important contribution the book makes in providing a new framework for existing discussions about the selectivity of international criminal justice. Using this framework, it is possible to debate the utility and limits of expressivist theory in justifying and conveying to relevant audiences the selectivity of international criminal justice. The post first addresses the use of expressivism as a tool to temper the expectations that are placed on international criminal justice institutions with selective enforcement capabilities. Secondly, it considers how the various forms of expression or ‘speech acts’ identified in the book may be employed to convey this selectivity to diverse audiences. The International Criminal Court (ICC, the Court) is used as a running example.

Compensating for the Selectivity of International Criminal Justice

As the book notes at the outset, and as is well known, the ambitions of international criminal justice ‘are often at odds’ with its ‘institutions, procedures, and resources’ (p.3). The expectations of international criminal justice ‘overinflate the power of justice’ through what Stahn describes as ‘[h]igh-flying discourses on ending impunity, outlawing evil, incapacitating political leaders, or providing catharsis for victims’ (p.410). Using the example of the ICC, he warns against ‘goals and aspirations that exceed its actual capacities’ (p.193). Indeed, the selectivity of international criminal justice is no longer, if it ever was, in question. At the ICC, the institution which shoulders the bulk of these ‘utopian’ expectations, this selectivity manifests in, inter alia, the initiation or not by the Prosecutor of preliminary examinations and of investigations, case selection and prioritisation, and the selection of charges.

Against this backdrop, the question arises whether expressivism provides the means to address ‘the tension between universal aspirations and practical limitations’ (p.16). Put differently, what role might expressivism play in justifying, retrospectively, the various forms of selectivity that have come to characterise international criminal justice? For Stahn, there has so far been a reluctance to discuss expressivist justifications for international criminal justice owing, among others, to ‘fears about its perception as a symbolic, rather than as a “real” project’ (p.45). Moving beyond these apprehensions, he contends that expressivist theory may be valuable in filling the space left by other theories of justice in addressing ‘the unique features and paradoxes of international criminal justice’, among them its selective enforcement (p.45).

As the book elaborates, international criminal justice has a ‘strong signalling effect’, including in respect of the discretionary allocation of resources (usually by the Prosecutor) to certain situations and cases and not others (p. 51). Judges also play a limited role in overseeing the exercise of the Prosecutor’s discretion. As such, both the Prosecutor and the judges must decide not only ‘where, when, and whom they investigate or prosecute, but also what message they send through such choices’ (p.409). These various ‘speech acts’ convey information about ‘what types of conflicts, criminality, incidents, and perpetrators ought to be chosen for international investigation and prosecutions, and what prioritizations should be drawn’ (p.52). In this way, they do not only convey information about the situations and cases which are selected for investigation and prosecution, respectively, but also about the situations and cases which are not. In addition to conveying information about specific decisions, these messages perform the wider function of conveying to relevant audiences the discretion that is associated with certain prosecutorial functions and the resource-based limits of the Court.

Yet, the ability of these ‘speech acts’ to effectively convey the limits of international criminal justice to relevant audiences is not self-evident. The areas in which messaging may usefully be deployed to justify the selectivity of international criminal justice are also by necessity the areas in which wide discretion is exercised and accountability is relatively limited. A good example is the exercise of the Prosecutor’s discretion in the selection of cases during the investigation of a situation, which is driven at least in principle by considerations of gravity (see OTP Policy Paper on Case Selection and Prioritisation). Accordingly, the selection of a given case becomes ‘a speech act about the “gravity of crimes”’ (p.224). Beyond conveying to relevant audiences the gravity of a case that has ultimately been selected for prosecution, the independent and usually confidential nature of an ongoing investigation limits the Prosecutor’s ability and willingness to convey additional information about the analysis undertaken. This statute-endorsed opacity is evidenced by the many unsuccessful requests for review by defendants questioning the Prosecutor’s conclusion that their case is graver than others that might have been prosecuted. It is also demonstrated by the judges’ unwillingness to exercise their powers of review during an ongoing investigation. As Stahn recognises, the nature of the investigation discourages ‘open discursive structures’ that engage relevant audiences, limiting the effectiveness of any expressivist function performed through the communication of the Prosecutor’s case selection decisions (p.225).

Conveying the Selectivity of International Criminal Justice to Relevant Audiences

In addition to expressivism’s ability to justify the selectivity of international criminal justice, a related proposition in the book is that international criminal justice institutions may, notwithstanding their selectivity, ‘carry a high degree of social relevance’ (p.52). Indeed, expressivism is ‘grounded in the idea that law has value because of its ability to convey social meaning’ (p.6). According to the theoretical framework detailed in Chapter 1 of the book, expressivism requires, in addition to ‘a sender’ and ‘a speech act’, ‘an audience’ (p.21). Stahn challenges existing views that ‘there is no coherent community to which laws and values can express’ themselves in the context of international criminal justice, taking a more granular approach that accounts for the diverse interests of various audiences (p.391). These range from the indistinct ‘international community’ to states parties, perpetrators, potential future perpetrators, victims, affected communities, civil society actors, academics and others, who do not all hold shared interests. On this basis, the book distinguishes the role of expressivism in international criminal justice from other contexts on the basis that it performs a ‘broader communicative function’ (p.46).

To the extent that expressivism may be said to justify the selectivity of international criminal justice, the question arises whether the ‘speech acts’ discussed above constitute effective communication with audiences holding diverging expectations and interests. Part of the problem, in Stahn’s view, is that messaging in international criminal justice is at present tailored to ‘persuade only those audiences who already believe in the cause’, which has so far involved a focus on the international community, in particular the states parties supporting the ICC (p.404). Through the establishment of suitable ‘communicative structures’, he argues, international criminal justice institutions will be able to convince ‘diverse constituencies that the exercise of international criminal justice is in their interest’ (pp.394–5). For Stahn, it is the Prosecutor who is best equipped to act as a ‘communicative agenc[y]’, engaging not only relevant parties and audiences within the Court but also ‘states, affected communities, and victims’ (pp.275).

In this context, concerns might be raised that the same ‘speech act’ cannot simultaneously perform an expressivist function in relation to audiences with diverging expectations and interests, to which messages must be specifically tailored. One such tension Stahn considers is the Prosecutor’s exercise of discretion to charge thematically, ‘draw[ing] attention to specific forms of atrocity’ (p.288). An example from the recent practice of the Office of the Prosecutor is a stated focus on sexual and gender-based crimes (see OTP Policy Paper on Sexual and Gender-Based Crimes). Such an expressivist focus, the book suggests, is intended primarily to communicate with ‘other international or domestic jurisdictions, global organizations, or non-governmental organizations’ (p.289). It may not, however, resonate with the victims of the crimes and affected communities, who may prefer a commitment to charges representing the main forms of criminality within the situation, giving equal if divergent effect to an expressivist logic. Any use of an expressivist justification for these highly discretionary prosecutorial decisions thus becomes ‘a choice about audiences’, perhaps precluding sustained engagement with them all (p.289).

Conclusion

Justice as Message calls for a widening of the lens in discussions about the functions performed by international criminal justice institutions. For Stahn, ‘[e]xpressivism is not a classical justification of justice or punishment on its own’ (p.398); it is better instrumentalised as a means to interrogate existing justifications for international criminal justice, an exercise the book lays the foundations for meticulously. Against this backdrop, the book raises the important question of how expressivism might be worked into the existing structures of international criminal justice. When it comes to the selectivity of international criminal justice, such an exercise requires careful consideration of the retrospective application of expressivist justifications for selective enforcement. This is particularly so since the conferral of prosecutorial discretion to make selective decisions about investigations and prosecutions was never intended to facilitate two-way communication with a diversity of audiences both within and beyond the courtroom. It is possible that the communication of an expressivist function to relevant audiences may in practice be both more limited and more complex than is desired. Ultimately, as Stahn recognises, it may be that ‘[t]he turn to expressivism is motivated by anxieties and fears about international criminal justice as a project and an institutional urge for survival’ (p.394). In its attempt to bridge the gaps left by existing justifications for international criminal justice (in particular the ill-fated commitment to end impunity), it is perhaps equally true that the expressivist function must be approached with caution. Justice as Message provides an excellent foundation upon which to base these discussions.