Fifteen Eighty Four

In April 2018, while undertaking a brutal ‘war on drugs,’ former President Rodrigo Duterte of the Philippines rejected the idea that he or his officials could be held to account by the International Criminal Court. He railed, in comments aimed at the Prosecutor of the International Criminal Court, ‘Where is your authority now? If we are not members of the treaty (the Rome Statute of the International Criminal Court), why are you…in this country?’ It cannot be conclusively said that Duterte intended to begin a discussion relating to legal and political philosophy, yet his question is an unexpectedly apt introduction to the main themes in my book, ‘The Authority of International Criminal Law: A Controversial Concept.’  The text examines several questions, investigating what authority the Court, and international criminal law more broadly, has. Is it, indeed, limited? And, critically, how might this relate to its legitimacy and the exercise of its power?

The question of authority does not tend to be extensively discussed in international criminal law scholarship, with the focus instead trained on the idea of legitimacy. Claims of victors’ justice around the establishment of post-war tribunals, arguments on the selection of cases where one conflict is preferred for prosecution over another, and the law on which individuals are prosecuted are frequently cited as evidence which demonstrates that international criminal law lacks legitimacy. However, what is meant by legitimacy, how it might be conceptualised, or even how it could be assessed, does not tend to be discussed in great depth.

Why not a book on legitimacy, in that case? This project did indeed begin as an assessment of what legitimacy might mean in the context of international criminal law, but initial research proved that any conclusions on legitimacy alone would be too simplistic. Using the work of legal and political philosophers it became apparent that legitimacy did not stand alone as a concept. Rather, proof of legitimacy is predicated on the existence of authority. Although the evidence is discussed more fully in the book itself, the foundation of the argument is that exercises of power, such as those engaged by the operation of the law, require the actor, or entity undertaking the acts, to possess authority. If they act without authority, their acts cannot be legitimate. Proving the existence of their authority is crucial for the legitimacy of international criminal law and, as a corollary, the International Criminal Court.

The discussion begins at the domestic level, where authority can be assessed more easily as it relates to constitutional norms, institutions, and the governance structure. The task is made simpler as one can assess the authority of these institutions, norms and actors, which is often contained within constitutions or domestic legal norms. Moving the discussion of authority to the international level is trickier, where there is no centralised governance and much of the law is based on State consent. Although State consent would be a useful way in which to conceive a theory of authority which fits international law in general, it does not work for international criminal law. This is, in part, because State consent can be circumvented via mechanisms such as United Nations Security Council referrals, State Party referrals, and universal jurisdiction. In short, the text utilises a wealth of evidence to show authority must be considered differently in the context of international criminal law to understand when the law would and would not possess authority, and thereby legitimacy.

The theory of authority proposed engages with several challenges which have a unique impact on international criminal law. In particular, the concepts of sovereignty, complementarity, and postcolonialism are discussed. The sovereignty of States allows them to undertake the obligations set down in the Statute, and to consent to the operation of international criminal law. This is supported by complementarity, which requires States to be completely ‘unable or unwilling’ for a prosecution to go ahead, and places primary responsibility for prosecution on the shoulders of the State. In theory, this should make all States equal, and equally authoritative in their actions relating to international criminal law. In practice, it does not: there is a real issue of shielding where certain States, particularly the UK, have indicated that they will prosecute domestically, and then fail to do so effectively. This is in sharp contrast to the more fulsome engagement undertaken by the ICC with other States, such as Kenya and Colombia (both of which were previously colonised by European powers).

The book is hopefully not so reductive as to assume that every European State would shield perpetrators from prosecution and that every postcolonial State would hand over prosecution helplessly to the ICC. Instead, it looks at the evidence in such instances and attempts to understand the problems this creates for the authority of the law. It proposes a theory of authority: authority as justice, requiring justice to be at the heart of all exercises of power in international criminal law. Only time, and readership, will uncover whether this argument is a truly cogent contribution to the literature in this area.