clark report

8/14/2019 Clark Report

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The Foundation for Law, Justice and Societyin affiliation with

The Centre for Socio-Legal Studies,University of Oxford, and Oxford Transitional Justice Research

www.fljs.org

Courts and the Making of Public Policy

Can International CourtsDo Justice?Conceptions of Justice in Responding

to ConflictREPORT AND ANALYSIS OF A WORKSHOP HELD ATST. HUGHS COLLEGE, OXFORD,2830 JANUARY 2009

Phil Clark

T h e F o

u n

d a t i o n

f o r L a w

, J u s t i c e

a n d S o c i e t y

B r i d

g i n

g t h

e g a p b

e t w e e n

a c a d e mi a

a n

d p o l i c y m

a k e r s


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The Foundation for Law, Justice and Society

This report draws on the authors workshop notes, as well as those recorded by thefollowing members of Oxford Transitional Justice Research: Teddy Harrison, Briony Jones,Lydiah Kemunto Bosire, and Nicola Palmer.

The Foundation for Law, Justice and Society 2009


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CONTENTS. 1

Contents

Introduction 2

Keynote Address: Justice after Atrocity: A Cosmopolitan Pluralist

Approach 3

SESSION ONE:International Justice: Dispute Settlement,

Peace-Building, and Deterrence 6

SESSION TWO:International Criminal Tribunals, Consequentialism,

and the Challenge of Reparation 10

SESSION THREE:International Justice and Neo-Colonialism:

Lessons and Prospects for the ICC 14

Conclusion 18

Participants 19


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JUSTICE AFTER ATROCITY: A COSMOPOLITAN PLURALIST APPROACH. 3

Keynote Lecture by Mark Drumbl , Professor of Law,Washington and Lee UniversityChair:Professor Denis Galligan, Professor of Socio-Legal Studies, University of Oxford

Professor Mark Drumbl opened the workshop with alecture that examined the meaning, legitimacy, andaspirations of international criminal justice and how itmight become more effective in fulfilling these, andother, aspirations. He began with two claims: onedescriptive, one analytic, before outlining hisproposal for reform.

Throughout the lecture, he contended that, indiscussing the role of international courts inaddressing conflict, the lexicon of justice should beexpanded to allow the pluralization of internationalcriminal justice. Justice, he argued, transcends thecourtroom and the jailhouse. Although accountabilityfor atrocity is a shared cosmopolitan value, pluralismsuggests that the process of accountability shouldtake different forms in different places.

Regarding his descriptive claim, Drumbl argued thatinternational criminal lawyers have too often conflated

the different issues of international criminal law and justice in their responses to mass atrocity. Consequently,international criminal justice has become ideallyimplemented through the vocabulary, institutions, andmodalities of liberal criminal law. In turn, this hasbecome the template against which post-conflict justiceinitiatives are measured. According to this prevailingview, justice after atrocity involves adversarial criminalprosecutions and incarceration for the guilty and centreson the perpetrator as an individual.

The ascendancy of this conception of liberalcriminal law is not random but moored in a particularworld view that derives from the intersection of

two philosophical currents: legalism and liberalism.The preference for criminalization has subsequentlyprompted scepticism toward other mechanisms inthe quest for justice. However, evidence frommany societies in conflict reveals that affectedpopulations often prefer justice approaches otherthan international criminal law. In practice, recourseto these alternate accountability modalities, includingamnesty, remains steady in the resolution of conflictsaround the world.

Drumbl then took up his second, analytic claim.He argued that international criminal law andprocedure go some way to achieving justice, but notvery far. More immediately, criminal prosecutions andsentences fall short of the many goals they espouse,namely retribution, deterrence, expressivism, andrestoration. International criminal tribunals also lack a coherent penology. Regarding certain aspirations,in particular retribution and deterrence, it remainsunclear whether a gnocidaire can receive justdeserts or, given the collective, propagandizedand administrative nature of a mass crime suchas genocide, ever be deterred by the prospectof being hauled before a tribunal in The Hague.

Justice after Atrocity: A Cosmopolitan Pluralist Approach

Regarding retribution and deterrence, it remains unclear whether a gnocidaire canreceive just deserts or ever be deterred by the prospect of being hauled before a tribunal in The Hague

Furthermore, Drumbl argued, the collective andsystemic nature of atrocity should force us to look beyond the criminal law to consider what collectiveand systemic forms of justice would look like.


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4 . CAN INTERNATIONAL COURTS DO JUSTICE?

order to reduce the risk that the ICC will admit acase for international investigation and prosecution.

Drumbl predicted that, as the modalities ofinternational tribunals continue to enter nationallegal frameworks through referrals, complementarity,and other processes, both the variety of sanctionand range of sentences available within nationalframeworks will increasingly shrink. In particular,conformist pressures will continue to be placed onlocal approaches, such as restorative methodologies,as exemplified by the gacaca jurisdictions in Rwanda,which constitute a community-based approach topost-genocide justice and reconciliation.

Having diagnosed these problems with internationalcriminal law, Drumbl moved to offer a remedy in theform of a cosmopolitan pluralist approach tointernational justice. The notion of diverseprocedures for universal wrongdoing, he argued, fitswithin a cosmopolitan theory of law, although it also

derives from the tenets of legal pluralism, hence theterm cosmopolitan pluralism . One advantage ofcosmopolitan pluralism, he said, is that it wouldwelcome and reflect actual post-conflict practice inwhich we see considerably more variation inapproaches to justice than the conformistexpectations of the international criminal lawparadigm. Consequently, cosmopolitan pluralism doesnot demand the development of a singular vision ofpunishment for extraordinary international criminals.

Drumbl outlined what a pluralist vision would look like in practice, focusing on two major areas ofreform: one vertical and the other horizontal.

First, he proposed to substitute qualified deference for complementarity or primacy as the framework shaping vertical applications of institutional authoritythat are transferred from international institutionsto the national and, in turn, to the local.Qualified deference allows more leeway to localvariation from the trial and punishment orthodoxy ofcontemporary international criminal tribunals. Insofaras local and national accountability mechanisms arepotentially corrupt, illegitimate, and susceptible to

The perpetrator of mass atrocity fundamentally differsfrom the perpetrator of ordinary crime, whichnecessitates more criminological research on theetiology of atrocity.

Drumbl stressed that international institutionshave not acquired a monopoly on the accountabilityfor crimes committed during conflict. In fact, mostaccountability is carried out by national and localinstitutions. Nevertheless, international institutionsserve as important, and often problematic,trendsetters for their national and local counterparts.The distinctions between international and nationalinstitutions are therefore far from watertight.

In the case of the International Criminal Tribunalfor Rwanda (ICTR) and the International Criminal Tribunalfor the former Yugoslavia (ICTY), international influenceover domestic justice is exerted through the primacyof these institutions over their national counterparts.The result is that international visions of liberal legalism

seep into national jurisdictions. These internationalpressures are most evident today in the completionstrategies of these two tribunals, which depend in parton the referral of cases from the ad hoc tribunals tonational institutions. Referrals occur under Rule 11bisof the tribunals Rules of Procedures and Evidence.Rule 11bis determinations require the tribunal judgesto be convinced that national proceedings satisfy theirinterpretation of international human rights standards.

To date, the ICTR has refused to transfer any of

its existing caseload to the Rwandan national jurisdictions. In the end, Drumbl said, the sameinternational community that sat idly by whilegenocide devastated Rwanda now claims thelegitimacy to withhold Rwandas ability to judgeindividuals accused of genocide, because Rwandancourts are deemed to fall short in terms of theirconformity to a liberal legalist template. Similarly,although the ICC is intended to be complementaryto national initiatives, it also exerts conformistpressures on national and, in particular, localaccountability mechanisms. This is because,under the rubric of the Rome Statute, states areincentivized to mimic international approaches in


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JUSTICE AFTER ATROCITY: A COSMOPOLITAN PLURALIST APPROACH. 5

elite manipulation, there is a need for oversight.Accordingly, Drumbl proposed that domestic justicemodalities be accorded a presumption of deference ,but that this presumption be qualified . He proposedthat the following interpretive guidelines shape theimplementation of qualified deference:

(1) good faith ;(2) the democratic legitimacy of the procedural

rules in question;(3) the specific characteristics of the violence

and of the current political context ;(4) the avoidance of gratuitous or iterated

punishment ;(5) the effect of the procedure on the universal

substance ; and(6) the preclusion of the infliction of great evils

on others .

These interpretive guidelines would operate disjunctively.In other words, not all of them must be met for the

presumption of qualified deference to a local or nationalaccountability measure to remain satisfied. However, agross failure on the part of the accountability process tomeet one of the guidelines could suffice to reverse thepresumption in favour of qualified deference.

The second proposed reform is horizontal . Here,Drumbl argued for a diversification in which the holdof the criminal law paradigm on the accountabilityprocess yields through a two-step process: initially,to integrate approaches to accountability offered by

law generally (such as judicialized civil sanctions orgroup-based public service) and, subsequently, toinvolve quasi-legal or fully extralegal accountabilitymechanisms such as truth commissions, legislativereparations, public inquiries, transparency, and thepolitics of commemoration.

If operationalized, these reforms would increase thepossibility that a larger number of individuals couldbecome implicated in the justice process, therebyinviting a broader conversation regarding the viabilityof collective responsibility for collective criminality.Drumbl stated that collective responsibility differsfrom collective guilt, which attaches to the question

of culpability. Whereas many individuals areresponsible for atrocity, a much smaller number arecriminally guilty. A much larger number of peopleare responsible than can (and deserve to) becaptured by criminal trials. Extraordinary internationalcrimes are characterized, to varying degrees, by theircollective elements. Downplaying this characteristic,Drumbl argued, inhibits the emergence of effectivepenological and criminological goals when addressingharm caused during mass conflict.

General Discussion

Much of the discussion revolved around two aspectsof Drumbls presentation: collective responsibilityand qualified deference. Some participantsquestioned whether collective responsibility allowedfor sufficient recognition of the often blurred linesbetween victims and perpetrators in cases of massconflict. In situations of mass crimes, it is oftendifficult to define the collective(s) in question where they begin and end and therefore who is

responsible and who deserves justice. Furthermore,there was some concern that advocating systemic orcollective forms of accountability to address systemicor collective crimes could involve prosecutinginnocent parties, including children. It would benecessary to find ways to reflect the collectivenature of crimes without criminalizing collectively.

Some participants argued that the case for qualifieddeference required further explication. In particular,what is the timeframe for this approach: how long

should domestic processes be given before it isdetermined that they are incapable or unwillingto deliver adequate justice? There was also someconcern over the criteria used to determine whendeference to domestic processes was legitimate.In focusing on the democratic legitimacy of localapproaches, to what extent does this rely on thesatisfaction of affected parties and is it possible toadequately measure that? Some participants alsoexpressed doubt over the ultimate goal of qualifieddeference, for example whether it was intended asan expression of the nature of mass violence or as ameans to legitimize localized processes that could inturn help reduce future violence.


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SESSION ONE:

International Justice: Dispute Settlement,Peace-Building, and Deterrence

Professor Vera Gowlland-Debbas , Professor ofInternational Law, Graduate Institute of Internationaland Development Studies, GenevaThe International Court of Justice, State DisputeSettlement, and Restitution

Professor Vera Gowlland-Debbas opened the fullday of workshop discussions by focusing on the ICJand asking how it responds to harm caused duringconflict, what types of justice it pursues, and howeffectively it does so. She began by describing thedual function of the ICJ as the UNs principal judicialbody and an independent judicial institution with

its own charter. This dual nature can often causedifficulties, as the ICJ must maintain judicialindependence while also cooperating with therest of the UN system.

Gowlland-Debbas argued that the ICJ contributes,along with state practice, to the development ofinternational public policy. It does this by applyingkey human rights and other norms whenadjudicating cases brought by states.These cases regularly stretch far beyond the claims

of individual victims to encompass broader inter-state and international issues, as exemplified inthe Lockerbie terrorist case or, more recently,Georgias case against Russia for aggression onits sovereign territory.

In interpreting the ICJs operational conception of justice, Gowlland-Debbas argued that this dependsheavily on the vision of independent judges, whoplay a central role in shaping the objectives andprocesses of the Court. Interpretations of justicethrough the ICJ cannot be easily derived from itsstatute, except tacitly as the administration ofprocedural justice. ICJ Judge Rosalyn Higgins has

previously argued that if justice goes beyond dueprocess, it becomes highly subjective and can createmajor legal difficulties when norms and valuesinevitably clash.

Gowlland-Debbas described how, even though the ICJhas often demanded that states pay compensation toothers, the Court denies that it delivers distributive

justice, seeing equity as its guiding principle and agood emanating directly from due process. Since thecreation of the ICJ in 1948, many of its supportershave praised this procedural approach to justice,while others have called for the Court to take a moreexpansive role and to articulate a fuller interpretation

of justice.

Nevertheless, the ICJ fulfils an important functionin expressing and moulding global norms, especiallyin response to harm caused during violent conflict.As expressed in Chapter VI of the UN Charter, theCourt is afforded the role of helping to maintaininternational peace and security. In this vein, its

jurisprudence has helped shape the concept ofgenocide, including the key elements of intentand complicity. The recognized importance of the

ICJ in this regard largely explains the widespreaddisappointment in its 2007 judgment in thecase of Bosnia and Herzegovina v. Serbia and Montenegro . In this case, the ICJ confirmed aprevious ICTY judgment that genocide had takenplace at Srebrenica in 1995. However, the ICJ foundthat Serbia had failed to prevent genocide but wasneither directly responsible for it, nor complicit in it.The disagreement between the ICJ and ICTY overinterpretations of complicity in genocide (the formerrequiring effective control of the state apparatus overspecific acts to constitute responsibility, while thelatter requires only effective general control withoutthe issuance of specific instructions) highlights the


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INTERNATIONAL JUSTICE: DISPUTE SETTLEMENT, PEACE-BUILDING, AND DETERRENCE. 7

often difficult relations between the ICJ, as anindependent judicial body, and other componentsof the UN system such as the ICTY.

The presentation concluded by illustratingthrough cases such as the Israel Wall, Bosnia and Herzegovina v. Serbia and Montenegro, andDemocratic Republic of Congo vs. Uganda that theICJ has recently gone through significant evolutionregarding how responsibility should be recognizedand justice should be delivered. Gowland-Debbasargued that early ICJ judgments emphasized theneed for state reparations for damage caused, whilemore recently the Court has stressed the importanceof simply recognizing legal breaches and restoringlegal relations between states. Consequently, theICJ appears to have increasingly interpreted itsrole as one of guaranteeing the integrity of theinternational legal system, as well as encouragingstates to halt legal breaches in order to restorestates to their previous relationships. This narrower

vision of the ICJs role and mandate, largely theresult of individual judges practices over time,has drawn criticism from many of the Courtssupporters, as well as some states that havepursued recourse through the ICJ.

Response: Dr Dan Butt, Fellow and Tutor inPolitics, University of OxfordIn his response, Dr Butt began by assertingthat narratives about the role of courts tend tofall into two categories: that of judicial activism,

and that concerning other actors who seek to pursue their agenda through the courts.He suggested that Gowlland-Debbass depictionof the ICJ appeared to fall in the second category,and that the ICJs role in public policy was largelydependent on the ways in which other actorschose (or were enlisted) to pursue their particularends through the Court. It is possible that futureparties to the ICJ may tilt the Courts role andpractices in different directions. This led to questionsregarding whether the ICJ might one day adopta more activist strategy, particularly regardingreparations and seeking a broader role indistributive justice after conflict.

Butt also commented on the narrowness of theICJs judgment in theIsrael Wall case , in which iteschewed invoking moral damages, focusing only onquestions of financial recompense, when finding thatIsrael had illegally constructed a wall in the OccupiedPalestinian Territory. He questioned what this focuson financial recompense meant for the ICJs overallinterpretation of restitution. In the Wall case, theCourt highlighted Israels responsibility to repairthe legal breach by erasing the consequences ofthe construction of the wall, but did not addressthe issue of what restitution would look like forthe moral wrong entailed in the construction.This seemed to miss the moral essence of theconflict between the parties concerned and thusraised more general questions about the usefulnessof the ICJ in addressing harm caused by states.

Dr Leslie Vinjamuri , Lecturer, Department ofPolitics and International Studies, SOAS, Universityof London

The Logic of Deterrence in Judicial Interventions:Dilemmas and Evidence

Dr Vinjamuris presentation questioned the logicof deterrence as a justification for international

judicial interventions after mass conflict. She arguedthat, before the 1990s, international criminal justicewas viewed as a necessary expression of an absolutecommitment to the judicial process for deliveringaccountability to perpetrators, victims, and societyat large. Since the initial resurgence of attention

to war crimes in the Balkans, however, deterrenceof future atrocities has become the dominant

justification for international criminal justice.This has found expression through the ICC and arange of peace agreements that include formalcommitments to war crimes trials.

Drawing on her extensive empirical research, Vinjamuriargued that, alongside demands for internationalcriminal justice and a wave of international anddomestic war crime trials, two contradictory trendshave emerged. First, judicial interventions havedeveloped rapidly. Rather than pursuing justice inthe aftermath of victories, international prosecutors


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The consequentialist nature of deterrence justifications, Vinjamuri argued, allowed for empiricalanalysis of the practical impact of prosecutions onattempts at peace after mass conflict.An investigation of trends in the relationshipbetween accountability mechanisms and thedurability of peace following the end of war,she said, undermines two chief claims made byproponents of deterrence. First, sustained peaceis not dependent on accountability. In eighty-threewars concluded between 1990 and 2007, fifty hadno war crimes trials or truth commission and, ofthese fifty wars, twenty-nine were associated withsustained peace (ten years or more).

Second, war crimes trials and truth commissionsare more highly correlated with peace when theyare deferred for at least two years after conflictends. In conflict countries where trials were held(19902007), peace was sustained in twenty-eightcases, and in ten, war continued or broke out within

five years. However, of these cases, only eleven warswere associated with sustained peace when tribunalswere created during ongoing conflict or within twoyears of a wars end, while eight conflict countriesexperienced renewed violence when tribunals werepursued during conflict or within two years of awars end. In wars where truth commissions oramnesties were initiated during ongoing conflictor within two years of wars end, the positiveassociation with peace was also greatly reduced ascompared with those cases where the mechanisms

for delivering accountability were deferred for morethan two years after the conflict.

This research raises important questions about thepossible negative consequences on peace if certaintools, notably amnesties, are denied mediatorsand political elites who are aiming to secure peacesettlements. If external actors are determined toplay a central role in ending wars, removing toolshistorically associated with negotiation may havethe unintended consequence of increasingpressure to use military force to achieve their goals.More problematic for scholarship, the theory ofconflict resolution and normative change embedded

are intervening during ongoing conflict. Second, theuse of amnesty has accelerated. Since 1990, the useof amnesty in conflict and post-conflict contexts hasoutstripped that of war crime trials, truth commissions,or virtually any other policy instrument. Despite aheightened attention to international criminal justice,mediators and local political elites have continued toturn to amnesties as a key conflict resolution tool.For example, domestic popular consensus appears tobe developing within Zimbabwe that Robert Mugabeshould be offered an amnesty to entice him to give uppower, but the plausibility that such a strategy wouldbe recognized internationally is low.

Since the resurgence of war crimes in the Balkans, deterrence of future atrocities has become the dominant justification for international criminal justice

Vinjamuri turned to the logic of deterrence thatunderpins war crimes trials and especially judicialinterventions in ongoing conflict. She then wenton to evaluate the relationship of that logic to thatmotivating the use of amnesty in peace negotiations.The decision to pursue justice during ongoing conflicthas been justified primarily in terms of its capacity toalter the outcome of war by enhancing the prospects

for peace.

The deterrence logic of international justice entailsseveral key consequentialist claims, including thatprosecutions will deter future conflict byindividualizing guilt, decollectivizing identity,removing from the scene or at least discrediting keyperpetrators who could foment further violence, andsubjecting violence to the rule of law. In contrast,the logic of bargaining, which is central to manypeace negotiations, holds that the best route topeace is to offer amnesty to lead perpetrators inorder to encourage them to negotiate and eventuallylay down their arms.


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INTERNATIONAL JUSTICE: DISPUTE SETTLEMENT, PEACE-BUILDING, AND DETERRENCE. 9

very poor understanding of the impact of justiceon elite decision-making and conflict generally,for example, the extent to which indictments andprosecutions can help facilitate peace. This castsdoubt on many of the key assumptions of scholarsand policymakers dealing with issues of conflictand civilian protection.

Welsh argued that insufficient attention hadbeen paid to notions of compellance, rather thandeterrence. We should focus more on the needto create compelling incentives for elites to actin nonviolent ways; and, where intervention isnecessary to create incentives, ask who hasthe legitimate authority to manage the process.Recognizing that external intervention will inevitablyraise critical questions of international politicsand state sovereignty, there is a need to createlegitimate accountability and authority structures

in the claims put forth by proponents of transitional justice remains surprisingly untested and under-critiqued, requiring new approaches to the studyof peace and conflict.

Response: Professor Jennifer Welsh, Professor inInternational Relations, University of OxfordProfessor Welsh began her reply by commenting onthe predominance of consequentialist arguments ininternational academic and policy debates aboutresponses to conflict. For example, most academicsand policymakers who invoke the increasinglyinfluential principle of the responsibility to protectin the context of humanitarian intervention, viewthe ICC and the ad hoc tribunals as key institutionsfor the prevention and deterrence of crimes.This preventive and deterrent potential of courtsand tribunals is seen as vital to protecting civilianpopulations from grave harm. However, we have a


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SESSION TWO:

International Criminal Tribunals,Consequentialsim, and the Challenge ofReparation

Professor Payam Akhavan Professor of International

Law, McGill University, MontrealInternational Criminal Tribunals as a Means ofDeterrent Justice

Professor Payam Akhavan focused on what hecalled the systemic deterrence of internationalcourts and tribunals. This concept emphasizes thesocio-pedagogical influence of legal systems andsubliminal restrictions on combatant behaviour,rather than direct impact on individual calculus.While it is difficult to measure the impact ofinternational justice in terms of systemic deterrence,impact is nonetheless the best justification forinternational criminal justice. The best argumentsfor the use of international law in responding tomass atrocity are utilitarian and consequentialist.As a corollary, the burden of proof lies on opponentsof international justice to show that justice is animpediment to long-term social objectives such aspeace and reconciliation.

Understanding why deterrence is crucial to a justification for international criminal law rests uponan understanding of the causes of most cases of massviolence around the world. Where Drumbl had focusedon collective responsibility for mass crimes, Akhavanemphasized the role of elites. He argued that it iscommon to associate mass atrocity with perpetratorsfilled with primordial hatred and caught up in collectivehysteria. Instead, most cases of mass violence involveelite calculation, manipulation, and systematic useof state bureaucracy to incite and commit murder.For example, in Rwanda, elites instrumentalizedissues of ethnicity and identity to create the necessaryenvironment for the genocide of Tutsi.

This basis for conflict, Akhavan argued, opens thepossibility for international criminal justice to alter

the costbenefit calculus of elites who considerfomenting conflict. Before the early 1990s, he said,impunity predominated such that Pol Pot, Idi Amin,and other leaders could commit atrocities withoutfear of prosecution. In fact, they were often adeptat playing the game of international politics,building allegiances with powerful nations, andtherefore were generally rewarded for their acts andwelcomed into the community of nations.

Impunity has consistently permitted mass violence.A more recent example of this is that of FodaySankoh, leader of the Revolutionary United Front,who after the Lom Accord in 1999 was given theposition of vice president of Sierra Leone andcontrol over key diamond mines. Soon after, herecommenced the conflict, highlighting the dangersof failing to prosecute key atrocity perpetrators andrewarding them with political prestige in an attemptto convince them to lay down their arms.

With the advent of international justice, that situationhas changed. Even though it may not be possibleto measure scientifically the impact of international

justice, an analysis of elite decision-making inconflict contexts shows that it has a discernibleeffect. Akhavan argued that this was evident later inthe Sierra Leone conflict when the UN special advisoron genocide, Juan Mendez, announced that thoseresponsible for mass atrocity could be prosecuted,which led to a cessation of hostilities.

The ICC, as a permanent global court, has an evengreater capacity than the ad hoc tribunals to facilitatesystemic deterrence because of its permanent judicial


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INTERNATIONAL CRIMINAL TRIBUNALS, CONSEQUENTIALISM, AND THE CHALLENGE OF REPARATION. 13

apologies from those who have caused them harm,are also important participatory components ofsymbolic reparation.

The ICC can provide these forms of recognition forthose cases within its jurisdiction, particularly giventhe Rome Statutes emphasis on victim participation,while also establishing documentary record ofhistorical fact (Article 68). This should provide somebenefit to victims, even if their own individualexperiences have not been acknowledged by the ICC.

The presentation concluded that it is necessary tomove beyond the unhelpful dichotomy of restorativeversus retributive justice. While there is by no meansconsensus on the compatibility of restorative andretributive justice, it is clear that restorative justice(on the whole) does not necessarily reject allpunitive measures associated with retributive justiceand vice versa, and that there is more commonground between the two forms of justice than is

often recognized.

In the case of the ICC, the Court tries to achievea measure of restoration within an essentiallyretributive framework. International justicemechanisms such as the ICC can bridge the dividebetween peoples micro and macro needs afterconflict. They can deal with individual victims andoffenders. But by targeting those at the top of thechain of command, their symbolic message has abroader impact, not only for communities directly

affected by the defendants crimes, but also forthose who may be thinking of perpetrating crimesin the future. International justice can combatimpunity through the act of prosecution, bysecuring public records, and creating internationalmechanisms to monitor, prevent, and try toresolve conflicts. By censuring the behaviour ofperpetrators, international tribunals and courtsacquire both a moral and a legal rationale, whichmeets the moral obligation to condemn and byso doing helps to develop universal human rights.At the level of the nation, the need is both torebuild damaged infrastructures, and to re-establish

justice and equality before the law through trials,

apology, documentation, and the establishmentof mechanisms to try to prevent a recurrenceof harm. Punishment and reparation are notdiametrically opposed, and both have their rolesin transitional justice.

Response: Lars Waldorf, Lecturer and Director,Centre for International Human Rights, Instituteof Commonwealth Studies, University of LondonIn his response, Waldorf began by assessingHoyles presentation with regard to Drumbls lecture,questioning whether collective reparations mightconstitute an effective way of addressing collectiveresponsibility. However, Waldorf echoed some ofthe concerns raised about Drumbls thesis, namely,that it is not always easy to identify victim andperpetrator collectives who should either receiveor deliver reparations. Collective reparations thatconcern ethnic groups or other volatile collectiveidentities could create resentment and the possibilityof future violence.

Waldorf outlined several concerns with Hoylesargument. First, he questioned why restorative principlesshould be applied to perpetrators of very seriouscrimes, such as genocide and crimes against humanity.Restorative justice practices have yet to provethemselves in less complex domestic cases, for exampleinvolving juvenile offenders. We lack the empiricalevidence that domestic restorative approaches leadto victim satisfaction. Therefore, it seems too earlyto espouse restorative principles in the context of

more serious crimes. Furthermore, it is not clear thatrestoring relationships between victims and perpetratorsis necessarily a desirable or feasible objective, giventhe severe harm that is caused during mass conflict.

Waldorf also questioned the linkage that Hoylesuggested between dialogic, participatory processesof justice and restoration. Dialogic processes cansometimes reinforce existing power relationships,depending on the nature of the processes, the actorsinvolved, and the wider political context in which justiceis delivered. Victimperpetrator dialogue in which thelatter displays no remorse for the harm caused couldalso further fracture relations between the parties.


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Dr Adam Branch , Assistant Professor of PoliticalScience, San Diego State UniversityThe International Politics of Impunity in Africa:The ICC in Historical Context

Dr Branch explored the politics of the ICC in Africa,situating the Courts operations in the largerhistorical context of external interventions in thecontinent. He argued that the ICC contributes toAfricas international political subordination throughthe force of international criminal law.

Branch pursued two principal lines of argument.

First, to understand current instances of internationallegal intervention in Africa, we must explore the historyof international law on the continent, particularly theuse of legal force during the colonial period. In thelatter half of the nineteenth century, African politicalentities were denied sovereignty under Europeaninternational law. These societies were representedas uncivilized, incapable of ruling themselves, andtherefore in need of colonial legal and political control.

The refusal to recognize African sovereignty renderedAfricans vulnerable to European force by refusingAfricans the right to resist occupation or politicalsubjugation. This was premised on the idea that,while the internal affairs of sovereign states wereimmune to external interference, nonsovereignentities had no such right. Therefore, Europeanstates could justifiably intervene in the affairs ofAfrican states, especially to employ civilizedEuropean forms of warfare against Africansavagery. At heart, the idea that sovereign

Europeans were civilizing nonsovereign, savageAfricans, and could do so through violence, justifiedthe discretionary use of violence against Africans andremoved it from any limitation by the laws of war.

In the second half of Branchs presentation, heargued that much has changed in international lawsince the colonial period: the sovereignty of Africanstates has been recognized; the use of force ininternational affairs has been made illegal outside ofUN Security Council authorization or temporary self-defence; and the laws of war have been expandedand now apply to Africans. However, despite theseformal changes, in practice international law hascontinued to be used in the service of theinternational domination of Africa, specifically by

justifying the use of force against Africans and byreleasing force from legal restrictions.

This global law, embodied most prominently in theICC, is invoked to justify the use of force againstAfrican states and external interference in internalAfrican affairs. Now, instead of simply rejectingthe application of international law to Africans,one form of international law, the global law ofhumanity, is applied to Africans, albeit in a highlyselective manner, the very application of whicheffectively withdraws Africa from the scope of theinternational law that enshrines the protections ofstate sovereignty.

Given the current US assertion of military powerglobally, including in Africa, it is not surprising thatglobal law enforcement has been instrumentalizedto that project through the selective prosecutionof some Africans and affording immunity to others.Branch argued that there is a strong tendency forUS enemies to be criminalized, made liable forviolence they use, and established as legitimatetargets of violence by Africans and international

interveners. The ICC justifies this American-alignedselectivity on the basis of pragmatism, but this risksleading the ICC to release violence from legallimitation in Africa.

SESSION THREE:

International Justice and Neo-Colonialism:Lessons and Prospects for the ICC


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INTERNATIONAL JUSTICE AND NEO-COLONIALISM: LESSONS AND PROSPECTS FOR THE ICC. 15

The force of enforcement can be deployed either by theWest directly or by African states and actors. The use offorce against Africans has not been effectively restrictedby the law; instead, through the invocation of globallaw and human rights, it has often been released fromthe legal restrictions posed by sovereignty and madeunaccountable to the very law it claims to uphold.However, this immunity is not restricted to the Westintervening in Africa. Indeed, immunity can also beenjoyed by Africans when they act as partners in globallaw enforcement or when their international politicsinsulate them from prosecution.

Branch provided several reasons why the ICC is open tothis dangerous international political instrumentalization.Inherently flexible and undefined concepts such as theresponsibility to protect (R2P) or humanitarianintervention are open to instrumentalization becauseof their vagueness and lack of objective criteria; alongthese lines, it might be thought that the ICC, with itsgreater level of formalization, would be less open to

manipulation. Indeed, it was precisely this aspect thathas made the United States wary of the ICC but willingto embrace more informal and flexible justifications suchas R2P for its use of force. But despite, or because of,US reservations, the ICC has proved itself to be a usefultool in the American arsenal, in particular in Ugandaand Sudan.

The selectivity shown by the ICC in Africa pursuingsome perpetrators, such as Congolese and Ugandanrebels, while refusing to prosecute the governments of

these countries has had two main repercussions interms of how violence is used and by whom. First,some African states and actors have assumed the roleof the enforcers of international law. Like internationalactors who claim to enforce global law in Africa, theseAfrican actors find international legitimacy for their useof force and claim effective immunity from global law.

Second, some African states and actors appearto have simply been granted immunity from theapplication of global law because of their internationalpolitical alignment, even when they use violencewithout the legitimating mantle of global lawenforcement. This was most concretely instantiated in

the bilateral immunity agreements between the UnitedStates and thirty-eight African countries, but alsotakes on a much more powerful and insidious form inthe informal understandings about who in Africa issubject to international law and who is immune.

Some African states and actors appear to have simply been granted immunity from the

application of global law because of their international political alignment

As a result of the ICCs involvement, the Ugandangovernment has managed to drape its militarycampaign against the LRA and subjugation of thenorthern population, domestically and abroad, withthe legitimacy of international law enforcement, tothe detriment of peace, stability, and democracy in

northern Uganda and the wider region. The Ugandangovernment has used the criminalization of the LRAto undermine peace talks with the rebels and toprovide justification for its counterinsurgency whenthe peace talks predictably failed. This hascontributed to the further militarization of theUgandan government and the criminalization ofdissent in Uganda.

Response: Professor David Anderson, Professorof African Politics and Director of the African

Studies Centre, University of OxfordIn his response, Professor Anderson argued that,in order to make the case as presented by Branch,a deeper analysis of the ways in which politicalcontingency determines political action is required.The ICC appears much more constrained in its actionsthan Branch suggests. We should analyse the Courtspolitical position, its leadership, the states andleaders who back it and influence its decisions, andgenerally the Courts room for manoeuvre. Many ofthe problems associated with perceptions of the ICCas a neocolonialist enterprise derive not from ICCactions per se but from those of its state backersand other international actors.


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Meanwhile, more active agency should be ascribed tothe African states in question. In the Uganda case,for example, as discussed in response to Akhavanspresentation, President Museveni proved adept atusing the ICC for his own means. President Bashir inSudan opposes the ICC because this wins himdomestic political approval by virtue of his rejectionof the perceived neocolonialist agenda of theCourt. Some elites in Kenya support the ICC forother contingent reasons, particularly invokingan international institution to convince the Kenyangovernment that impunity is unacceptable.African leaders are not defenceless in the face ofinternational criminal justice but rather have foundways to use the ICC and other internationalinstitutions for their own ends.

Anderson concluded by arguing that international justice as an enterprise is worthwhile because itpromises accountability for those responsible foregregious crimes. It is important to differentiate

between the flawed approaches of the ICC and otherinternational courts to date (many of which resultfrom the ICCs tenuous political position as afledging institution seeking legitimacy) and thecontinuing need for effective international justice,especially to address the harm caused to innocentcivilians during conflict.

Morten Bergsmo , Senior Researcher, InternationalPeace Research Institute, Oslo (PRIO)Contributions of the Ad Hoc Tribunals and

Lessons for the ICC

Bergsmo began his presentation on the legacies ofthe ad hoc tribunals by highlighting two currenttrends in international criminal justice. First, thevarious ad hoc international tribunals and courts,such as those for the former Yugoslavia, Rwanda,and Sierra Leone, are in the process of shuttingdown, ensuring that the era of multiple jurisdictionswill soon end and leaving the ICC as the soleremaining international criminal justice institution.Second, since the ICC is constrained by the principleof complementarity, the centre of criminal justice formass atrocity will shift to the national level.

Bergsmo argued that, on the whole, the ad hoctribunals have been a remarkable success, particularlyconsidering the widespread scepticism regardinginternational criminal justice in the early 1990s,including within the tribunals themselves. Heenumerated four principal contributions of and lessonsfrom the ad hoc tribunals, which would be crucial forthe future of the ICC and national criminal justice.

First, the tribunals have produced important jurisprudence for handling complex mass crimes,which will form the basis of future trials for massatrocity. The tribunals have raised the standardof trials by requiring a greater degree of evidencethan was previously thought necessary to provethe commission of crimes. This will force futureinvestigators and prosecutors to improve theirmethods and thus the overall quality of justice.

Second, the ad hoc tribunals have fulfilled a vitaltruth-recovery role, highlighting the ground-level

facts about conflict that might otherwise have beenoverlooked or forgotten. These processes werecrucial in establishing a narrative of conflict andshaping memory of past events: features of the legalprocess that lawyers often ignore but that are crucialfor societies affected by conflict.

Third, the ICC and national approaches to justicewould do well to learn from some of the legalpractices established by the ad hoc tribunals.The key to effectively distilling the legacies of the

tribunals, Bergsmo said, was to differentiate betweenpositive and negative practices, thus ensuring that

justice in the future improves on past approaches.The concern is that future institutions will fail torecognize, and where possible, minimize, the extentto which they are inevitably shaped by politicalinterests, including those of the UN and its memberstates, as well as individual officials and tribunalstaff. Bergsmo argued that the ad hoc tribunals werealso bedevilled by overstaffing, leading to inefficientwork practices, poor handling of evidence, and thefraught overlap of internal interests. The ad hoctribunals could have eased their caseload byestablishing clearer criteria for legal jurisdiction



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PARTICIPANTS. 19

Participants

Payam Akhavan , Professor of International Law,McGill University, Montreal

David Anderson , Professor of African Politics andDirector of the African Studies Centre, University ofOxford

Morten Bergsmo , Senior Researcher, InternationalPeace Research Institute, Oslo (PRIO)

Adam Branch , Assistant Professor of PoliticalScience, San Diego State University

Daniel Butt , Programme Director for the Courts and the Making of Public Policy programme, FLJS, andFellow and Tutor in Politics, University of Oxford

Phil Clark , Foundation Research Fellow in Courts andPublic Policy, Centre for Socio-Legal Studies,University of Oxford, and Convenor of OxfordTransitional Justice Research

Mark A. Drumbl , Alumni Professor of Law, andDirector, Transnational Law Institute, Washington &Lee University

Denis Galligan , Professor of Socio-Legal Studies,University of Oxford, and Member of the Board ofTrustees, The Foundation for Law, Justice and Society

Vera Gowlland-Debbas , Professor of InternationalLaw, Graduate Institute of International andDevelopment Studies, Geneva

Carolyn Hoyle , Reader in Criminology, and Fellow ofGreen College, University of Oxford

Leigh Payne , Professor of Sociology, Latin AmericaCentre, University of Oxford

Leslie Vinjamuri , Lecturer, Department of Politicsand International Studies, and Convenor of GeneralDiplomatic Studies and Practice, SOAS, University of

London

Lars Waldorf , Lecturer and Director, Centre forInternational Human Rights, Institute ofCommonwealth Studies, University of London

Jennifer M. Welsh , Professor in InternationalRelations, University of Oxford


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The mission of the Foundation is to study, reflecton, and promote an understanding of the role thatlaw plays in society. This is achieved by identifyingand analysing issues of contemporary interest andimportance. In doing so, it draws on the work ofscholars and researchers, and aims to make its work easily accessible to practitioners and professionals,whether in government, business, or the law.

Courts and the Making of Public Policy

In the last fifty years, courts have emerged askey participants in the public policymaking process,exercising discretion to make decisions which havefar-reaching consequences in terms of thedistribution of benefits and burdens within society.The Courts and the Making of Public Policy programme seeks to provide a critical assessmentof the role of courts in policymaking from both

empirical and theoretical perspectives, assessingtheir level of influence and scrutinizing theefficacy and the legitimacy of their involvement.The programme considers a range of issues withinthis context, including the relationship betweencourts, legislatures, and executives; how judicialpolicymaking fits within a democratic society; whattraining and qualifications judges have for policydecisions; and how suitable the judicial forum is forhandling the information that is needed for informedpolicy choices.

Phil Clark is a Foundation Research Fellow inCourts and Public Policy at the Centre for Socio-LegalStudies, University of Oxford, and convenor of OxfordTransitional Justice Research. He specializes inconflict and post-conflict issues in Africa, particularlytransitional justice in the Great Lakes region. He isco-editor of After Genocide: Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond (Columbia University Press; C. Hurst andCo., 2009) and author of The Gacaca Courts and Post-Genocide Justice and Reconciliation in Rwanda:

Justice without Lawyers (Cambridge UniversityPress, 2009) and Doing Justice during Conflict: The International Criminal Court in the Democratic Republic of Congo and Uganda (under review).

clark report

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