Contemporary International Criminal Law After Critique Symposium: Transformative Justice – Abolition and International Criminal Law

[Sophie Rigney is a Senior Lecturer in Law at RMIT University and author of Fairness and Rights in International Criminal Procedure]

In the northern summer of 2020, up to 26 million people took to the streets in the United States to protest the murder of George Floyd by city police, and police violence and carceralism generally. These were the largest protests in U.S. history. Others who lived outside the U.S. also participated in local protests, both in solidarity and to highlight the experiences of carceralism worldwide. For many, this experience made us consider abolition and carceralism in news ways. It made obvious the expansive networks of global carceralism, and therefore the need for global carceral abolitionism.

During this time, I was finalising my manuscript for a book which considers the rights of the accused in international criminal law and procedure. In this book, I am explicit about a desire to strengthen international criminal law (ICL) through critically questioning but ultimately improving its processes. This was a view I had held since my practice as a defence lawyer at the International Criminal Tribunal for the Former Yugoslavia – an experience where, like many other defence lawyers, I had worked ‘within [the ICL] system’ in order to seek ‘its improvement through critique’. Yet writing at this time – while also witnessing the Black Lives Matters protests, attending local vigils with my family, listening to the abolitionists and activists who were doing so much work, and listening too to my colleagues who were linking these protests to demands for structural change to address mass atrocities in Australia – I started to question the normative position I’d held for over a decade. It became obvious to me that ICL has many of the same problems we were protesting at the domestic level. By the time I drafted the book’s conclusion, I wrote:

To achieve a truly transformative moment, those who think about international criminal law (scholars, advocates, and students) should be focused on ending atrocities and the conditions that give rise to them—rather than simply on ending impunity, or on strengthening criminal processes… Just as abolition discussions at the domestic level focus on what else is possible–community-building, properly funded education, robust healthcare, rehabilitation–international criminal law needs to consider more deeply what a world could look like without any need for international criminal law… How do we build that future?

In the article published as part of our recent JICJ symposium, I try to expand this idea by bringing into dialogue critical approaches to ICL, and the work of carceral abolitionist scholars and activists. I argue that ICL is a ‘carceral system, which responds to mass atrocity by holding some individuals criminally responsible for these events and then, generally, imprisoning those individuals’. ICL’s structural conditions – its ideological grounding in neoliberalism and its relationships to race, global capital, colonialism and imperialism – ensure that some are criminalised and some are exonerated. Race, nationality, class, and gender are all powerful determinants of who will be brought before international criminal courts and tribunals. I argue that instead, we need an abolitionist movement for ICL. This movement would ‘refuse imprisonment and policing as the main responses to mass atrocity, and instead would seek to understand the social causes and conditions that cause such mass atrocity, and also how (and why) criminal law has become the preeminent ‘legitimate hand of justice’’.

An abolitionist approach to ICL feels particularly challenging at this time: both fraught, and urgent. For nearly a year, we have witnessed as an apparent genocide in Gaza has been live-streamed. Day after day, we have watched this violence progress and expand. One study published in The Lancet puts the death toll at 186,000 people: each of them whole worlds. Seven months into the violence, the Prosecutor of the International Criminal Court (ICC) announced that his office was seeking arrest warrants for both leaders of Hamas and the state of Israel, for ‘war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine (in the Gaza strip) from at least 7 October 2023’. 

This turn to criminal law has been welcomed by many international lawyers. Indeed, the situation of Palestine and the ICC has long predated this current violence. In 2009, the Palestinian Authority government lodged a declaration accepting the jurisdiction of the ICC under article 12(3) of the Rome Statute, for ‘acts committed on the territory of Palestine since July 1, 2002’. Three years later the ICC Prosecutor declined jurisdiction, citing a lack of clarity around the status of Palestinian statehood. In January 2015, the Government of the State of Palestine lodged another declaration accepting the jurisdiction of the ICC, this time over alleged crimes committed ‘in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014’. It wasn’t until February 2021 that the Pre-Trial Chamber I had confirmed that the Court could exercise its criminal jurisdiction in the Situation; in March 2021, the Prosecutor announced the opening of the investigation into the Situation in the State of Palestine. The appeal to ICL in this case therefore spans fifteen years of requests by Palestine to the ICC.

These Palestinian requests have been tactical, undertaken both to seek accountability for a range of apparent international crimes, and to bolster Palestinian claims to statehood. Even those who are well aware of and engaged with all the critiques of ICL (particularly the critiques from TWAIL and Marxist perspectives) have argued that in this case ‘the ICC is the institutional door that has been forced ajar, and so it is imperative to think about what space it may open for anti-colonial forms of ‘principled opportunism’.’ There is therefore a suggestion that ICL is a tool that may be used in a fight for liberation and justice, and to ‘feed into the more radical transformations of social, economic and ecological relations that are needed for settler-decolonisation and liberation of Palestine’.

This appeal to ICL in the situation in Palestine is understandable. The tactical use of ICL articulated above is compelling; and while I might disagree on the use of a carceral system for the purpose of liberation, I still have great respect for the activists and scholars using whatever mechanisms they can muster. I agree with Michelle Burgis-Kasthala and Barrie Sander when they emphasise that scholarly critiques should ‘not slide into criticism of Palestinian choices about their own engagement with ICL’: it is an important aspect of self-determination that Palestinians are able to articulate their legal claims. More recently, witnessing the horrors of Gaza, we want to make them stop – and ICL has felt like one of the very few levers we have at our disposal. Moreover, many of us have felt a strong desire to see punishment meted out against those causing the violence. I have felt this myself: a sense that perhaps I could be an abolitionist for ICL, except in this case. This case feels like the exception to any theory; the limits of abolitionism feel exposed. 

Such exceptionalism is familiar to abolitionists, who have always had to hold steady against demands that carceralism be applied in ‘remarkable’ situations. But in such difficult cases, abolitionist Mariame Kaba beautifully articulates an aspiration: can we ‘challenge our punitive impulses, while prioritizing healing, repair, and accountability’?

Because the situation of Palestine is a paradigmatic case for showing the structural conditions of ICL, and how problematic these are. First, as I have written elsewhere, the articulated aims of ICL are not being achieved. We have been told for decades that ICL has a ‘deterrent’ function, a ‘socio-pedagogic’ function, that it is integral to an international rule of law. Yet in the case of Palestine, we see that all this is a fiction: those who ordered the violence, and those who have carried it out, have not been daunted by potential ICC prosecutions. While there may be some concern about ICC prosecutions and a perception that the ICC poses a threat to Israel, even the definitive step of the application for arrest warrants has not stalled the violence. At most, the application seems to have somewhat curtailed the international movements of some state officials (although other travel is still occurring). ICL simply is not able to end the atrocities, which must be our primary objective.

Secondly, the case of Palestine clearly exposes the selectivity of ICL. This has been obvious in the fifteen years of Palestinian appeals to the ICC, where there was no progress in a case. Against that backdrop, the slowness of prosecutions for Gaza acutely reveals how ICL brings some situations into its remit but delays, denies, and obfuscates other situations. Between 7 October 2023 and the filing of applications for arrest warrants on 20 May 2024, there were criticisms that the Court was taking too long to act. As one example, over 200 scholars expressed their ‘grave concern’ over the conduct of the Office of the Prosecutor of the ICC, in particular about ‘its adherence to impartiality and non-discrimination’, and ‘considerable delays, lack of responsiveness, as well as policies of understaffing and under-resourcing’ of the Situation in Palestine. In doing so, the letter demonstrates the biases and selectivity of ICL (even if there is dissent on some of the details). The letter is also revealing as another example of the power of the appeal to ICL: again, these are scholars from the TWAIL tradition who are aware of the critiques of ICL, yet are demanding more ICL, rather than less.

So here are our challenges. We might demand the Court to act, but it does not seem to matter much whether or not it does: the violence continues, unabated. When the Court is slow to act, or if it does not act in any meaningful way, it shows the selectivity of a system which criminalises some and exonerates others on the basis of determinants such as race and nationality. Yet if the Court does act, those critiques are not disproven. The Court remains selective, and is still enmeshed in power structures.

We see this selectivity of ICL in action through the arrest warrant application itself. The crime of genocide is not alleged, though many believe there to be sufficient evidence and the International Court of Justice has ruled it to be ‘plausible’ that genocide is occurring. There is no allegation of the crime against humanity of population transfer or forced displacement; no allegations specifically relating to the apparent targeting of hospitals, medical personnel, journalists, and aid workers; no allegations specifically relating to the taking of territory or the destruction of civilian infrastructure. There are no allegations of gender-based violence relating to the lack of anaesthetic available for c-sections, premature delivery of babies, and other issues faced specifically by pregnant, postpartum and breastfeeding people.  Allegations of torture and sexual violence have been levelled against the leaders of Hamas but not of the state of Israel (I am grateful to my colleague Katherine Fallah for articulating some of these to me in private discussions). While further charges may be added later (and it is an understandable prosecution strategy to commence with a limited focus), the selectivity of these allegations shows ICL exonerates and criminalises in particular ways.

So, then, what of the future? Where to go ‘after’ this ‘critique’ of ICL? I cannot imagine that ICC prosecutions will bring a lasting peace and liberation to Palestine. The threat of prosecutions has not ended the atrocities. The conditions that have given rise to the atrocities still exist. This will not be changed by imprisoning some individuals for these widespread atrocities. Indeed, such imprisonment may only cause more harm, and cycles of violence and trauma to perpetuate. So how do we build a future where there is peace, prosperity, care, and freedom in Palestine?

Again, we can take some guidance from domestic abolitionists, who point to ‘transformative justice’ as an alternative to carceralism. Transformative justice aims to transform the conditions that permit or encourage harm; to ‘create responses to violence that do what criminal punishment systems fail to do: build support and more safety for the person harmed, figure out how the broader context was set up for this harm to happen, and how that context can be changed so that this harm is less likely to happen again’. Critique is not something that ends here – there is an ongoing critique and imagination, which enlivens other possibilities for action and accountability. A transformative justice in Palestine will require (amongst other things) rapid military divestment, careful demobilisation of troops, debt cancellation, land rights, Palestinian self-determination, and increases in aid and worldwide mutual care. This is a broader justice than carceral ICL can provide.

International law has been described as a discipline of crisis, and ICL has rightly been critiqued for its emphasis on acute violence rather than slow violence. Not infrequently, the moments that erupt into crises have previously spent years (or decades or centuries) developing as slow violence or structural violence. We saw this in 2020 with Black Lives Matter, and we see it now with the atrocities occurring in Gaza; both acute situations which flared from long histories of oppression and violence. If we are able to attend more carefully to the structural – to the reasons why atrocities are permitted or encouraged to occur – we might transform the world. It is my hope that we see a free Palestine alongside a more just world, and that we can bring this into being without the carceral violence of ICL.