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28

Jun

2022

Some Realism about the International Criminal Court

Written by: Richard Gaskins

 
 

The facts on the ground are grim. War in Ukraine has been grindingly destructive, as days and weeks turn into months. As Ukrainian cities are being levelled, civilian targets range from the theatre in Mariupol, to the streets of Bucha, to the train station in Kramatorsk. The helplessness of the West can be measured by an escalating rhetoric of wartime criminality: as Western observers face realistic limits on military intervention, they reach for the idealism of international justice and the moral reckoning of courtroom trials. Idealism says there must be a place where such justice can be declared, and among potential venues is the fledgling International Criminal Court (ICC).

But can the ICC actually deliver the righteous judgments so earnestly sought? Exploring this question brings a dose of realism into the discussion. It calls for scrutiny of the ICC’s controversial performance thus far, after twenty years and a small handful of completed trials, ending with a mix of convictions, acquittals, and abandoned prosecutions. A close analysis of that record invites skepticism, but with a glimmer of hope that a new round of Ukraine-centered trials might allow the ICC, at last, to find its footing.

The world’s moral investment in the ICC has been inspiring. While countries like Russia, China, and the US have scorned membership, the Court is nonetheless a product of powerful human rights campaigns following World War II and surrounding the end of the Cold War. International non-governmental organizations lend support through heroic investigations and soaring rhetoric. The ICC’s lineage runs back through the Yugoslav Tribunal, back further to Nuremberg, and to such historic precedents as the founding of the Red Cross. Despite limits on its jurisdiction, part of the ICC’s grandeur is its commitment to prosecuting high officials, even heads of state. In the circumstances of Ukraine, the ICC’s jurisdictional boundaries are just broad enough to reach relevant events on the battlefield.

Such lofty ambitions meet their match in the gritty challenge of conducting ICC trials. A sober look at the Court’s record reveals some of the problems. ICC judges set a lumbering pace in their first four trials (all involving defendants from the Congo), each trial lasting between six and ten years—from the time the court gained custody of its suspect, through appeals. The sheer volume of evidence included a large cache of anonymous hearsay, with heavy circumstantial detours. Multiple judicial panels have disagreed fundamentally on how to weigh such evidence (there are no juries) and how to apply standards of proof. Amid credible charges that witnesses had been coached or corrupted, the very first ICC trial had to exclude the testimonies of all nine putative child soldiers. Across the board, when evidence didn’t quite measure up to pre-trial charges, judges wriggled to rewrite the charges to keep prosecutions alive.

Beyond problems of evidence, the more serious ICC challenge has been attributing known crimes to specific perpetrators in the courtroom. For cases from Central Africa, there was a yawning dissonance between abstract codes of legal responsibility and the concrete structure of armed violence. The notion of standard armies with World War II-style chains of command could not be applied with any confidence to opportunistic bands of insurgents. Additional ICC trials in Kenya and the Ivory Coast were aborted when this gap became obvious to some trial judges, despite strong external pressures to keep the prosecutions going. In response to these problems, judicial factions emerged with incommensurable views on core legal principles.

A new generation of ICC trials out of Ukraine might just allow the ICC to recover its confidence and to reclaim its essential mission. This time, with echoes of World War II, the structure of armed violence seems a closer match with a legal code growing out of Nuremberg conditions. But even here, the asymmetric conditions of urban warfare could prove daunting, and the Court would require some creative judging to attribute civilian massacres in Bucha and Kramatorsk to the likes of Putin and his immediate circle. Both Nuremberg and the Yugoslav Tribunal applied broad conspiracy doctrines to link those at the top to destruction on the field, begging enough questions to earn the critique of “victors’ justice.”

Right now, as the human toll increases in Ukraine, the idea of seeking justice has obvious attractions. But in the event of real trials, moral passions must be transmuted into strict standards of legality—allowing even the possibility of acquittals. Despite external pressures, judges must articulate compelling principles of legal process and fair trials. In the ICC, patterns of the past two decades would have to change: weaknesses in witness credibility or prosecution strategy could not be salvaged by judicial fiat. The ICC may have inherited the hopes of generations, but it has yet to reach its potential as a working court. With Ukraine, there would be no more room for trial-and-error.

The Congo Trials in the International Criminal Court by Richard Gaskins

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About the Author: Richard Gaskins

Richard Gaskins is Joseph M. Proskauer Professor of Law and Social Welfare at Brandeis University. He spent the past decade designing and directing student exchange programs in The Hague, which combined academic theory with hands-on practicums in courts and NGO's. He holds a Ph.D. (Philosophy) and J.D. from Yale University....

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