Category Archives: International Criminal Justice

One of the Missing Pieces in the Accountability Puzzle

Arvind Ganesan is the Director of Business and Human Rights at Human Rights Watch.

Professor Stewart’s proposal is intriguing. Incorporating international crimes into a slowly evolving legal regime that might eventually hold companies accountable for complicity in abuses abroad could be a useful step. Even though his proposal is limited to “international crimes” that would only cover a narrow set of abuses relative to all of the human rights issues companies have, it still is worth exploring.

Whether one agrees or disagrees with his thesis, one thing is clear: his proposal is part of a larger trend towards stronger mechanisms that could institutionalize enforcement of the human rights responsibilities of companies.

In the late 1990s when Human Rights Watch first began work on Business and Human Rights, most companies did not accept that they had human rights responsibilities. The earliest cases under the Alien Tort Statute (ATS) against companies had been filed against Texaco (now Chevron) in Ecuador and against Unocal (now Chevron) in Burma, but had not reached any resolution. A number of companies were criticized because of human rights issues related to their operations, but were still resistant to changing their practices.

Most companies argued that host governments needed to address the abuses. By the beginning of the 21st century, some companies (mainly those burned by public criticism) started to grudgingly move to adopt human rights standards. The first company codes of conduct started to appear along with the first multistakeholder initiatives (MSIs) such as the Fair Labor Association (FLA) and the Voluntary Principles on Security and Human Rights.

After that, the ill-fated UN Norms were drafted. By 2006, human rights policies, MSI’s, shareholder activism, and public scrutiny of companies were all part of the global mix. A range of activities had evolved to try to hold companies accountable. Then, the UN approved the new mandate for the Special Representative on Business and Human Rights.

One area that has consistently lagged behind all of the others has been the enforceable legal framework and specifically, legal accountability for corporate complicity in abuses. In 2006, there was no regulation for businesses although some had been proposed. For example, US congressional representative Chris Smith had drafted the Global Online Freedom Act to regulate internet companies so that they would have to protect freedom of expression and privacy online. GOFA was a response to scandalous disclosures that major internet providers were self-censoring in China and that one of them had turned over private account information on activists to Chinese authorities who were later imprisoned for their efforts to promote human rights online. But the bill has not become law.

Nor had the courts held companies liable under the US ATS. Some companies had reached confidential settlements with plaintiffs, but no company had been found liable for human rights violations under the ATS, so the regulatory effect of such suits are not yet realized. And recent rulings by the US Supreme Court make that possibility even more remote.

Modest regulation has continued to evolve. In 2010, the regulatory environment slowly began to change, beginning with the passage of the US Dodd-Frank financial reforms law that had two human rights-friendly provisions: section 1502 that required publicly listed companies to disclose whether they sourced conflict minerals from the Democratic Republic of Congo; and section 1504 that required public extractives companies to disclose their payments to foreign governments. These laws represented some of the first attempts to regulate companies on human rights grounds. Even though they were relatively modest—only requiring companies to disclose information—they have been hotly contested by the industry and section 1504 has yet to go into force.

The next year, the UN Guiding Principles on Business and Human Rights were approved. And building on the precedent of Dodd-Frank, governments like Canada, the UK, and the members of the European Union have all drafted their own extractives disclosure legislation. Other rules are in effect or developing, for example, the US has human rights disclosure rules for investments above US$500,000 in Burma. New social reporting rules are proliferating in Europe and as far afield as India.

New disclosure rules are a promising development, but they are not a substitute for full accountability. In our view, the best, but still imperfect, legal model may be one that mirrors anti-corruption laws. Those laws, such as the US Foreign Corrupt Practices Act (FCPA), have extraterritorial reach, require companies to put systems in place to identify and prevent bribery and hold companies accountable when bribes are paid. Human rights rules could do the same thing: apply extraterritorially, require companies to put policies and procedures in place to identify and prevent abuses, face civil and criminal liability if abuses occur, and to regularly report on their efforts to protect human rights in their operations.

Laws like a human rights FCPA will not easily pass and will undoubtedly face resistance from industry and the governments sympathetic to them. But structurally, they offer the best chance to cover the largest swath of companies. The growing number of disclosure laws may be the first step towards comprehensive rules. And there is some evidence that change is coming. The proposed UN treaty on transnational corporations and human rights, for example, is a sign of movement. While it is controversial (Human Rights Watch has expressed reservations about it), it does signify a desire to move beyond the status quo. But it would be premature and naïve to think that real accountability will come easily or is inevitable.

Any move towards accountability at the national or international level will be a challenge and will take time. In that context, Professor Stewart’s proposal may be a way to fill in the missing pieces of the accountability puzzle. Like many current developments, it is indirect inasmuch as it is not regulation, but the hope of de facto regulation through potential liability. It is not a panacea for abuses or a substitute for clear and explicit laws that define the human rights responsibilities of companies, but is a part of the mix of efforts that are slowly and surely trying to ensure accountability for business-related abuses.

Corporate Criminal Liability for International Crimes? Yes Please

Simon Taylor is a Director and co-founder of Global Witness

Over the last 20 years, we at Global Witness have waded through an endless stream (now a torrent) of corporate and individual abuse, asset-stripping and the furtherance, through financial support, of mass murder and destruction. So with great excitement, I read James Stewart’s paper, “The Turn to Corporate Criminal Liability for International Crimes.” From my perspective, anything that could be deployed to begin the process of holding companies and their officers to account for the kind of behaviours that we regularly expose is a welcome development. So please continue the debate and bring us those tools.

I should pre-empt my comments by stating I am not a lawyer, and have little exposure to legal matters and their finer points beyond the often tough process we conduct to ensure our output stands, despite the brutalities of the UK’s libel laws. That leaves me, I think, with a fairly basic understanding of James Stewart’s arguments, and comments about his paper on the Opinio Juris site. I am also left with many questions. For this reason, I would ask readers to forgive me my likely mangling of terminology, and instead, I hope I can contribute to the debate with a challenge or two, and hopefully provide you with an insight into our world of investigation, exposé and frequent collision with corporate and individual perpetrators.

Some of you will be familiar with our work – from its start with the exposure and shutting down of illegal timber exports from Khmer Rouge areas in Cambodia to Thailand, through bringing “blood diamonds” to world attention, conceiving and co-launching the global Publish What You Pay (PWYP) movement, and our work on banks that take dictators loot, and anonymous companies and trusts that hide the perpetrators. Across our work, there are common themes and many of them relate to the mechanisms and facilitators used, not to mention the legal inadequacies that variously aid and abet the perpetrators.

Global Witness “investigates and campaigns to prevent natural resource-related conflict and corruption and associated environmental and human rights abuses.” For the purpose of this discussion, think of the following question: How could we ensure that exploitation of natural resources can lead to a positive development outcome given that the natural resources of a country generally belong to the people of that country? Rather than what we currently see, with very few exceptions, which is a predatory relationship between exploiting company/investors, more often than not, involving a “Faustian pact” with kleptocratic elites who view their country’s resources as their own personal cash-cow?

Half of what we do is to investigate. We look for the facts. We want credible evidence that clarifies what is happening, who is doing what, and how they are doing it. The other half is seeking change – and that can often end up in the long-term grind of seeking new international mechanisms that bring change in behaviour. We deploy the strength of our evidence to help shape the outcome. James Stewart mentions a number of these, including the Kimberley process on conflict diamonds. I won’t go into that here, but I would mention another, the Extractive Industry Transparency Initiative, or EITI, where civil society in theory is empowered to hold governments and companies to account for the payments received and paid.

In seeking to answer my development question, I think the following analogy helps: Imagine in front of you, a bathtub, full of milky water, due to bath salts. You cannot see the bottom, but the water is leaking away. This is because the tub has various holes in the bottom, of differing sizes, and in multiple locations. Your task is to find the location of the holes, work out how large they are and their shape, and then fashion a plug to stem the flow. EITI, which remains a work in progress, should eventually become one of those plugs.

Over time, my attitude to the corporate role in these processes has hardened, but it has been because of the behaviour of the companies. To illustrate this point, let me focus on corruption in the oil sector. Thinking back to the late 1990’s and early 2000’s, and to the question asked of oil companies: whether they should disclose the payments they make for extraction in countries like Angola? At that time, around 90% of Angolan state income was generated from oil, and tens of billions of dollars were being (and continue to be) siphoned off by the elite. I remember the response: “What is the business interest?” I found it unfathomable how anyone, given the situation of utter deprivation that prevailed in Angola at the time, could ask such a question. That is unless one takes into account the thesis of Joel Bakan in his extraordinary documentary/book “The Corporation” – that the predominant corporate model behaves like a psychopath! I don’t mean as we often think of psychopaths as deliberate and unthinking killers, more that the corporate interest always comes first, thus outright criminal behaviour, or behaviour that by any normal ethical standards should be criminalised, can become acceptable – the cost-benefit analysis being the extent of thinking about whether to proceed!

For me, this demonstrates the limits of Corporate Social Responsibility. For sure, there have been some major improvements in corporate behaviour, thanks to some incredible work by key CSR specialists within and outside companies – and this should continue. But they do not go anywhere near far enough. In my experience, the limits of CSR are delineated by the boundary that separates corporate interests from public interests – where they are aligned, progress can be made, but where not, the corporate interest always comes first. Our experience from over 17 years of campaigning to obtain a global standard of disclosure of project-level payments made by extractive companies strongly supports this thesis. Within months of launching the PWYP campaign in 2002, we had won the moral argument as to whether extractive companies should disclose such payments. But, with some notable company exceptions, it has taken what I would describe as trench warfare ever since, with us and our amazing PWYP colleagues, fighting the companies for every incremental improvement.

Why do companies that now profess their support for transparency behave in this way? In my opinion, this is because in many natural resource-rich, but desperately poor countries, access to concessions often requires illicit payments – often a situation created by the companies. Thus disclosure, could either lead to companies falling foul of anti-corruption legislation, or at least major embarrassment. This is precisely why we are seeking mandatory disclosure laws so that companies cannot make such payments without being exposed. Conversely, rather than helping to make a global standard, thereby helping themselves to avoid this situation, many companies have decided they want to maintain the status quo, and are expending considerable effort to undermine incoming disclosure laws, such as Amendment 1504 of the Dodd-Frank Act and the transposition in Europe of the Accounting and Transparency Directives, which require project-level payment disclosure.

So back to my bathtub – we need help. We’ve found many of the holes, and we are shaping several of the plugs – and we will continue to do so. But there are several we simply cannot find, and perhaps we do not even appreciate their existence. Here I am particularly thinking of legal remedies that can be used to bring cases, or at least imply that possibility, to impact decision-making at the board room. People often think of corruption as an exercise of payments with brown envelopes to get what you want. But in our experience, it is much more pervasive and of a scale that frequently bleeds countries dry – driving conflict, acting as a recruiting sergeant for disenfranchised youth. Denial of healthcare, education or frankly any prospect of a future breeds violence – and whilst it often might not be possible to link corrupt corporations and their officers with pulling the trigger, we know of many examples where they have been directly responsible for the conditions that lead to the trigger being pulled, and even bankrolled buying the gun. Of course we want to see efforts on all fronts to bring about changes in corporate behaviour, but until we see serious jail time as a possibility, and an end to what I consider ineffectual “cost of doing business” style fines, nothing will change.

Civil Society’s Reflections on Corporate Responsibility for International Crimes: An Introduction and Open Invitation

Promoting dialogue between academics and civil society is one of the founding aspirations of this blog. In the manifesto, I emphasize how greater dialogue of this sort will help maintain a kind of symbiosis between theory and practice, which in turn, assists keeping the former informed and the latter defensible. This focus arises from my interest in philosophical pragmatism, which doesn’t mean just muddling through as is the colloquial understanding of pragmatism, but instead promotes high-theory that does not occupy an ethereal position divorced from reality. I’m interested in a two-way, respectfully critical dialogue between the academy and the civil society.

In that spirit, I wanted to invite members of civil society to critically engage with a recent article I wrote entitled The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. In a previous online discussion, a set of distinguished academics kindly agreed to criticize the article, and my friends at Opinio Juris generously played host. The responses from Samuel Moyn (Harvard), Steven Ratner (Michigan) and Beth Stephens (Rutgers), together with my replies to them (see here), proved helpful in clarifying the scope of the idea, areas for further research and points of residual disagreement.

In this symposium, I will replicate our discussion about corporate responsibility for international crimes within civil society. In an initial set of commentary, representatives from Global Witness, Human Rights Watch, the International Centre for Transitional Justice, Enough, FAFO, and the European Centre for Constitutional and Human Rights will all post insightful reflections that add much new information and perspective to our earlier debates. These leading commentators collectively boast years of experience dealing with these issues at the coalface, which is evident from their excellent contributions. I begin their commentary tomorrow.

At the same time, there are two obvious problems with this excellent set of commentators. First, they all emanate from the West, which robs the debate of input from civil society in Third World countries likely to be most affected by cases against businesses. I know of some NGOs in these parts of the world who are especially critical of corporate accountability, so it would be a shame not to include their voices in this discussion. Second, all of the commentators I have arranged are generally supportive of this form of corporate accountability, which is gratifying to me as author of the underlying article, but inconsistent with my desire to host a range of competing viewpoints.

This brings us to the open invitation. In addition to posting the thoughts of these leading Western NGOs, I invite representatives from civil society from throughout the world to write and submit a short blog post responding to the ideas in the article itself and our debates. Here are the guidelines for submissions:

  • Submissions must respect the principles in the blog’s manifesto. See here.
  • Submissions should be a maximum of 1,500 words including footnotes (if you decide to include footnotes at all);
  • Your submission should begin with a sentence or two describing your organization, where you are based, and the work you do;
  • Your submission should contain absolutely no allegations against particular companies. I am interested in ideas, not allegations;
  • I will preference submissions that show signs of having engaged with the article and debate here;
  • Articles can be submitted to me in English or French. Regrettably, I cannot host submissions in other languages;
  • Please send the submission by email to: with the words “Civil Society Blog Submission” in the email’s subject line;
  • I will publish up to 15 submissions if I get this many. I cannot guarantee that I’ll publish all submissions, but I am hoping to get enough responses to publish a variety from different parts of the world.

The deadline for submissions is 20 April, 2015.

I hope that, by engaging a set of Western NGOs together with numerous others from throughout the world, the resulting discussion will provide a diverse set of ideas for and against this type of accountability.



A Court on the Rocks? Responding to the Rough Justice Reviews

David Bosco is Assistant Professor at American University’s School of International service and a contributing editor at Foreign Policy magazine. He is author of Rough Justice and Five to Rule Them All: The UN Security Council and the Making of the Modern World.

I am grateful for the opportunity to respond to the reviews of Rough Justice that James Stewart has so skillfully assembled. The reviewers bring to their task a daunting level of knowledge, experience and insight, and I will endeavor to respond as thoughtfully as they have commented. As I read them, the reviews tended to fall into two broad categories. Several discussed the evidence that I presented of “mutual accommodation” between major powers and the court and focused on what this says about the court’s trajectory. Others argued incisively that my focus on the relationship between the major powers and the court ignored important facets of the institution’s performance. I will address these broad critiques in turn.

Alex Whiting, Sarah Nouwen, David Tolbert, Aryeh Neier, and Judge Goldstone mostly agree with the picture of the court’s first decade that I have presented, but they differ markedly on the importance and implications of the mutual accommodation. Whiting and Nouwen are perhaps furthest apart. For Whiting, it is not surprising that the court would take into account geopolitical realities as it selects situations to investigate. While acknowledging concerns about the propriety of doing so, he notes that a prosecutor who ignores strategic realities “risks spending precious resources on efforts that will fail, exposing the fragility and weakness of the institution and…potentially undermining its legitimacy.” A wise prosecutor, he suggests, really has no choice but to strike a balance between pragmatism and principle. Nouwen sees the prosecutor’s choices in a much darker light. “If one considers equality before the law as an element of justice, then the current practice [of avoiding clashes with major powers] may do more harm than good.” Unless the ICC deviates from its path, her analysis suggests, the whole project may be tainted.

For all their differences, I think these commenters all acknowledge that the court’s success will depend on much more than its standing with major powers. As Tolbert argues, maintaining good relations with powerful states “is not enough for the Court to begin to fulfil its mandate and deliver on its promise.” I agree with this point; my focus on the relationship between these powers and the courts should not obscure the reality that the court’s legitimacy and, ultimately, its effectiveness are impacted by many other factors. Some of these factors can clearly come into tension. Nouwen is no doubt correct that a too-accommodating relationship with the powerful could sap the court’s reputation elsewhere. I end up more sanguine than she does, although perhaps not for encouraging reasons. I believe the international community has a fairly high tolerance for double standards in multilateral architecture. The failure of the Kenyan-led bid to incite a large-scale African withdrawal from the court suggests that states are unlikely to abandon the institution even when they are seriously dissatisfied with aspects of its performance.

The question that I ended the book with, and which these commenters have insightfully elaborated on, is where the court now stands. Is it navigating successfully through a turbulent atmosphere or is it on a dangerous course? In thinking about the complex trajectory of this fragile new court, we are not entirely without historical guidance. Tolbert and Judge Goldstone appropriately urge consideration of how other international—and even national—courts have maneuvered through similar pressures. The ICC may be a unique creation, but other judicial institutions have encountered similar dilemmas. Many of the commenters are far better equipped than I to assess the lessons of the ICTY for the ICC. But as I see it, the ICTY is a mostly encouraging precedent. As Neier points out, it too struggled for relevance in its early years and at various points appeared to be slow, inefficient, and toothless. But the tribunal has concluded with a very impressive record of convictions against individuals from all sides of the Balkans wars. The ICTY’s failure to seriously investigate charges against NATO does not undermine its record. As Goldstone points out, there were legitimate grounds for its prosecutor not to pursue any cases against the NATO countries related to the Kosovo conflict. Carla del Ponte noted that her enquiry into NATO conduct brought her to “the edge of the political universe in which the tribunal was allowed to function.” But acknowledging that reality does not imply that there were serious crimes by NATO left unprosecuted. Over time, the ICTY managed to generate substantial political support. While the relevant major powers—the leading European states and the United States—waxed and waned in their enthusiasm for the project, they ultimately exerted considerable pressure on Bosnia, Croatia, Serbia, and Kosovo to comply with its rulings and to deliver those indicted. I think the ICC would be quite pleased if it could move onto the ICTY’s trajectory.

The lessons of the International Court of Justice are more complex. As Tolbert reminds us, that court has endured up and downs since it began operating after the Second World War. But he argues that it has recovered from some earlier missteps and “now has a full docket.” This is too quick a conclusion; the ICJ is also peripheral to most major disputes and has not played the role its founders intended. Many of its contentious cases involve situations in which states have already decided that they want a dispute resolved. What’s more, very few of its cases involve major powers. Of the permanent Security Council members, only Britain accepts ICJ compulsory jurisdiction (and with a raft of caveats). France withdrew from the court’s jurisdiction after the court ruled that its nuclear testing was illegal. The United States followed suit after Nicaragua sued it in the mid-1980s. As Eric Posner has argued, the major powers have decided not to use the court proactively. China has never been involved in a contentious case before the court. Fewer and fewer international treaties provide for ICJ jurisdiction. One could then sketch a much gloomier picture of the ICJ than Tolbert does: it can be seen as an international court that dared to challenge the powerful and has, largely as a result, been relegated to the margins of world politics. I don’t contend that this is the only way of seeing the ICJ, but I believe its current position is less robust than Tolbert suggests.

Viewed darkly, then, the ICC is caught between two unpalatable options. It can continue with its pattern of marked caution (particularly as regards situation selection) and risk losing support in much of the world. Or it can throw caution to the wind and risk confrontations with powerful states that may leave the institution crippled and humiliated. Is there a viable third path? Can the court carefully but firmly move into areas outside of the major-power comfort zone? The prosecutor will soon have the opportunity to test its boundaries. As Neier points out, the mutual accommodation I described in the book is being tested in new ways. The Palestine situation is now on the prosecutor’s plate, and she will soon face the very difficult choice of whether to open a full investigation there. Meanwhile, there are signs that the prosecutor’s temporizing regarding the Afghanistan and Georgia situations may soon end. In the OTP’s last report on the status of preliminary examinations, it sent strong signals that it is moving toward a decision point in both situations. It is conceivable, therefore, that the prosecutor may soon have investigations open in at least two of these countries.

These investigations could put the OTP in the kind of faceoff with major powers that it has to this point avoided. There is some preliminary evidence that the ICC is holding its own in some early skirmishes with major powers. The OTP reopened a preliminary examination of British conduct in Iraq, and in so doing it forced the UK authorities to examine much more thoroughly its national accountability procedures. And as I’ve reported in Foreign Policy, the prosecutor’s office and the United States are engaged in a quiet dialogue about U.S. detention practices in Afghanistan. In both cases, it is possible to argue that the court is having an impact on the practices of powerful states. As Whiting points out, the degree of attention and concern that the court’s work generates in even major capitals suggest the court’s relevance, not obscurity. If the ICC is encouraging more thorough accountability in even powerful governments, that would be a notable achievement, and a boost for the vision of “positive complementarity.”

But encouraging national accountability won’t always be the endgame. And the looming choices that face the prosecutor bring us back to the question of whether it is wise and appropriate for the prosecutor and the court to factor geopolitics into its decisionmaking. As Whiting correctly points out, I do not directly address in the book the normative question of whether the prosecutor should act strategically. I saw the book’s purpose as analyzing and describing rather than prescribing. But I do think the court’s best interests are served by beginning to push out of the zone in which it has been operating. The prosecutor’s decision to delay an Afghanistan investigation as long as she has is particularly difficult to defend. Temporizing too long on opening a full investigation in Palestine would also invite accusations of politically-induced timidity.

Kamari Maxine Clarke and James Stewart are less interested in the ICC’s dilemma of managing relations with powerful states than in what is missing from my account of the court. Both see deeper realities mostly untouched by the narrative in Rough Justice. For Clarke, the specter of neocolonialism hangs over the court. She points out that many developing states joined the court in circumstances that, if not coercive, at least limited their options. Clarke is no doubt correct that the decisions of what to criminalize involves political and ethical choices, and I did not mean to suggest otherwise. She gently chides me for not addressing more directly the backlash in parts of Africa against the court. In part, this criticism dovetails with Nouwen’s point that in cultivating relations with major powers (and, above all, the United States), the court may itself serve to reinforce existing power disparities. In part, this criticism is fair. I certainly could have spent more time addressing the consequences of the mutual accommodation process I describe. But both in my descriptions of the Rome Conference dynamics and the Kampala debates on aggression, I do highlight the tension between those who saw the court in large part as a restraint on the powerful and those who envisioned it mainly as an instrument for dealing with weak and failing states. As I see it, my focus on understanding and documenting major-power relations with the court—with all the embedded hypocrisies—facilitates rather than impedes the perspective that Clarke offers.

Stewart’s concern about perspective missing from the book is more specific: the ICC’s failure to pursue evidence of crimes by economic players. I have no doubt that economic interests—including foreign economic interests—are important in many situations that the court has investigated. I am less certain than Stewart that these cases could be easily prosecuted but also acknowledge limits to my expertise in this area. Given the crimes provided for in the Rome Statute, it seems significantly more straightforward to prosecute a militia commander for war crimes than, say, to pursue officials from a company involved in extracting coltan from the region. The record of the ad hoc tribunals that has shaped case law on international criminal responsibility also pushes the ICC toward the responsibility of military and political leaders and away from that of economic actors. Whether or not recent caselaw on complicity will work their way into ICC charging decisions remains to be seen.

But my decision not to focus on these possible crimes ultimately did not rest on an assessment of their legal viability. My admittedly narrow focus was on the relationship between major powers and the court, and I worked largely on the basis of what court officials and those diplomats identified as key issues in the relationship. The many individuals that I interviewed for the book simply did not identify these potential economic cases as being a central part of the story. I saw no evidence, for example, that the prosecutor was pressured not to pursue cases against foreign business interests or that major powers were concerned about the court moving in this direction. In short, I do not deny that the dynamic Stewart presents is an important one. But it was a story that fell outside the scope of my project.

Commerce and Atrocity: The Elephant in the Room

David Bosco has written a wonderful book. Rough Justice reveals past events, distant and less so, that will be entirely new to even seasoned experts in international criminal justice. Where readers are familiar with the controversies he addresses, Rough Justice provides far greater detail than most were aware of. All of this information is masterfully put together in an elegant narrative, and couched within a conceptual framework that helps orient thinking about the relationship between the International Criminal Court (ICC) and Great Powers. The book will, no doubt, be read and reread by broad audiences as this ambitious experiment with supranational criminal justice unfolds over the coming decades.

At the same time, his book will likely serve as a convenient proxy for the criticisms of all those who hoped international criminal justice might be other than it is presently. In this vein, my reaction is more a complaint against the institution he describes than his treatment of it.

To my mind, there are all sorts of reasons to celebrate the arrival of the ICC, and much need to think creatively about strategies for overcoming its obvious shortcomings. I am particularly concerned by the double standards in enforcement Bosco seizes upon, and the injustice(s) these entail. Unlike other critics, I also believe that incremental acculturation is possible, whereby national courts come to take up the slack where the ICC’s power peters out. In other words, I believe that to some extent, critics of the ICC need to take Kathryn Sikkink’s “justice cascade” more seriously, and look to national systems to produce more of the distributive equality they seek. The ICC plays an important part in this cultural shift, such that its efficacy cannot be measured by referencing the impact or politics of its own trials alone. I am, for example, currently writing about the Blackwater trial that took place in Washington D.C. this past summer, in part because I intuit that, culturally speaking, this highly improbable case cannot be neatly separated from the massive rise of criminal accountability for wartime atrocity over the past two decades.

This said, the Blackwater trial does point to something highly regressive about the brand of international criminal justice on offer in the ICC’s own courtrooms. For all the reasons to celebrate the great leap forward in supranational criminal accountability over the past years, there is something strikingly backwards in all this progress too, which does not register in Bosco’s excellent book. The responsibility of businesspeople for atrocity was front and center at Nuremberg, but mysteriously, it has vanished since.

To begin, let me dispel the common misperception that companies are necessarily passive auxiliaries in bloodletting that is not of their making. In 1932, the chairman of the chemical company IG Farben allegedly paid a substantial bribe to have Hitler installed as Chancellor. Even the Nuremberg judgment itself indicates “in November 1932 a petition, signed by leading industrialists and financiers, had been presented to President Hindenburg, calling upon him to entrust the Chancellorship to Hitler.” Even before the end of the war, the Allies were adamant that if there were trials, international criminal responsibility would reach out and touch businesspeople, too: attempts at a second Nuremberg trial for just “industrialists” were only narrowly defeated. When these trials took place within zonal trials, a relatively large number of businesspeople were tried and convicted for pillaging natural resources and complicity in atrocities.

Why not now? There is a veritable flood of information about corporate implication in the very African atrocities the ICC is focused on. Security Council appointed panels of experts have documented connections between commercial actors and atrocities in modern African conflicts over which the ICC enjoys jurisdiction, NGOs like Global Witness and Human Rights Watch have mounted detailed investigations into legally comparable corporate war crimes in the very regions ICC defendants come from, Hollywood makes movies like “Blood Diamonds” and “Lord of War” to bring these realities to a wider public, all range of academics point to the perversity of the Resource Curse, the Alien Tort Statute cases against corporations nearly fall over entirely leaving quasi-total corporate impunity globally, the UN Special Representative on Business and Human Rights describes international criminal law as “[b]y far the most consequential legal development” in the field of business and human rights, but the ICC rests idle.

In fairness, Moreno-Ocampo did issue warnings about the serious possibility of these sorts of cases during his time as the ICC’s Prosecutor. In 2003, he reported that “there is general concern that the atrocities allegedly committed in [the DRC] may be fuelled by the exploitation of natural resources and the arms trade, which are enabled through the international banking system.” Later he reiterated that “various reports have pointed to links between the activities of some African, European, and Middle Eastern companies and the atrocities taking place in the Democratic Republic of Congo… Their activities allegedly include gold mining, the illegal exploitation of oil, and the arms trade.” The statement then cautioned that “[t]he Office of the Prosecutor is establishing whether investigations and prosecutions on the financial side of the alleged atrocities are being carried out in the relevant countries.” In a conference I organized in The Hague in 2010 together with Larissa van den Herik and the Open Society Justice Initiative, Moreno-Ocampo again expressed a desire to move these cases forward.

The failure to make good on these promises, and their absence from Bosco’s otherwise wonderful text, leaves something of an elephant in the room.

One does not need to travel all the way to Afghanistan or Georgia to observe the political double standards Bosco sees animating the ICC’s operation in action. At the same time that the ICC has indicted Omar Al-Bashir and Jean-Pierre Bemba with pillaging other types of property from Sudan and the Central African Republic, it has turned a blind eye to the mountain of evidence that foreign companies were responsible for precisely the same war crime in the same region, with far worse consequences for local populations. In private conversations with ICC prosecutors, they either claim that they wish to focus on “just the basics” or that “these sorts of cases will be exceptionally difficult to prove.” With respect to the former, I am not convinced that the “basics” preclude addressing one of the means or motivations for terrible bloodshed. As for the latter, I have to doubt the veracity of the claim, partly because Dutch prosecutors, who have brought these cases, report that acquiring actionable evidence against businesses is often easier than in regular cases involving political or military leaders.

As I point out in a separate blog with the ICTJ today, trying these sorts of trials may actually make the Prosecutor’s explanation for her unique focus on Africa more plausible. Presently, the Court justifies its singular geographical focus by citing the number of victims involved in African conflicts. In philosophy-speak, however, the underlying argument is unsound—it assumes that only Africans are responsible for atrocities in Africa. That assumption is patently false. Aside from overlooking the tremendous variety of sources I reference above, it also plays down the long history of foreign corporations plundering African resources that dates to colonialism and the equally longstanding tradition of supplying weaponry to African conflicts without question. Even leaving these two sectors to a side momentarily, what of the history of offending by private military in Africa, à la Blackwater in Iraq more recently? If the prosecutor investigates foreign businesspeople implicated in African atrocities, she could correct for the fallacious assumption in her office’s poor explanation, distance her institution from the history of colonialism, and partially diffuse the African Union’s critique of the ICC without focusing on alternative geographies.

Her response would become: “when western nationals are implicated in atrocities of this magnitude in Africa, we hold them responsible, too.”

This brings us full circle, back to national trials. By even gesturing at the possibility of these sorts of cases, Bensouda could alert states and their publics to the need to prosecute their own businesspeople in national courts, in appropriate cases. In so doing, she would be nurturing the cultural shift I point to at the outset; gently instigating a kind of “justice cascade” for a set of actors that have proven spectacularly successful in insulating themselves from modern international criminal law. These are not small peripheral issues, they are often important factors in reproducing atrocity, have powerful symbolic resonance, and therefore go to the heart of international criminal justice’s legitimacy. Thus, I would have been all the more enamored with David Bosco’s excellent book if it had also announced the elephant in the room, observed the curiously regressive character of contemporary international criminal justice on this score, and contributed to shifting public opinion regarding commerce, atrocity and accountability.



The ICC’s Credibility Depends on Much More than Just Power Politics

David Tolbert has served as president of the International Center for Transitional Justice since 2010. Previously he served as registrar (assistant secretary-general) of the Special Tribunal for Lebanon and prior to that was assistant secretary-general and special expert to the United Nations secretary-general on United Nations Assistance to the Khmer Rouge Trials. From 2004 to 2008, Mr. Tolbert served as deputy chief prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY).

David Bosco’s Rough Justice: The International Criminal Court in a World of Power Politics is certainly an interesting and sometimes riveting read, even to someone who knows the story well. He clearly had considerable access to the principal actors, both internal and external, in the continuing drama around the International Criminal Court (ICC) as well as the trials and tribulations of the ICC’s early years.

As a matter of analysis, I find quite useful Bosco’s conceptual framework for examining the development of the ICC’s relationships with key state powers. In particular, his description of the United States’ up-and-down (or rather down-and-up) approach to the ICC fits well with his framework of, e.g., marginalization, control, acceptance. While Bosco devotes much of the book to the signaling between the ICC (primarily the ICC Prosecutor) and the United States, he does address the Court’s relationships with the other permanent members of the UN Security Council (P5) and other key states to good effect. Thus, on its own terms, the book contributes to our understanding of the relationships – missteps, mistakes and all – and the political dynamics between the Court (primarily the Prosecutor) and key states, mainly the US, and how current accommodations were reached.

While Bosco tells this story well, his framework and approach have their limits. The support of major powers for an international body, such as the ICC, particularly one that has the capability to touch state power so directly, is important perhaps even a sine qua non to the success of such a body. Nonetheless, for the ICC to make a longer-term difference, it will need to rely on the soft power of its own credibility, legitimacy and respect. These qualities go well beyond state diplomacy or being in the good graces of the great powers. In some (if not many) ways the involvement and association with, much less the accommodation of, great powers can have a counteractive effect, as the Court may be portrayed by its enemies as a tool of the great powers or, more generally, of the West (or the western powers). Even though it is a smear, the rhetoric that the Court is acting as a cat’s paw for western powers in the case of Kenya and beyond has clearly been effective. Thus, today the challenge facing the Court is less about acceptance by the great powers and more about finding ways to strengthen and build its credibility and legitimacy. Ultimately, a judicial institution must have credibility and legitimacy, or perhaps more colloquially – respect, to carry out its job effectively. This means not only being seen as independent of political control but also developing credibility with those affected by its judgments—above all, victims and affected communities—and international civil society, including scholars, academics and journalists.

The question then is how does the Court build the credibility and legitimacy it needs to do its job more effectively and make a difference in a world full of atrocities? In this respect, there ought to be both short- and long-term strategies. With regard to the latter, there are some pertinent examples of courts and tribunals that have recovered from initial difficulties and self-inflicted wounds and examples of some that arguably have gone the other way. The International Court of Justice lost considerable credibility, and even went some years without any cases, following its mishandling (to put it politely) of the Southwest Africa/Namibia cases; but it subsequently recovered and now has a full docket. On the national level, the US Supreme Court went badly off the rails a number of times with decisions such as the Dred Scott case and Plessy v. Ferguson but re-established its reputation in the area of civil rights with Brown v. Board of Education, among other notable cases. Arguably, the International Criminal Tribunal for the former Yugoslavia (ICTY) has gone in the opposite direction, establishing a significant amount of credibility with its handling of a number of earlier cases, including Tadić, only to run amok with its controversial and questionable decisions in Gotovina and Persić (in the latter with contradictory decisions from the ICTY Appeals Court on the same substantive issue).

If we examine these and other examples closely, it is clear that the qualities and abilities of the judges are key to establishing the credibility of a judicial institution. Indeed, one can argue that the great courts have competent and often great judges. Bosco himself alludes to the barriers to having a stronger group of judges when he notes ICC judges who came to office through apparent horse-trading, with limited (and in one case no) judicial qualifications or training; there are other cases of woefully underqualified judges being elected primarily because they come from important countries. Another area of contention that has hampered the ICC is procuring intelligence information. While these disputes are no doubt complex, they could have been addressed with a bit more judicial creativity (the ICTY’s Rule 70 approach comes to mind) in a manner that would contribute more strongly to the cause of justice.

Bosco notes a number of issues that plagued the Office of the Prosecutor. One was the propriety of using intermediaries in cases investigated in the Democratic Republic of the Congo, which led to serious questions about the collection of evidence. A second was the lack of a tracking team for locating fugitives, which had proved very useful at the ICTY. A third was not putting senior trial lawyers in charge of investigations (apparently this recently has changed), which at the ad hoc tribunals considerably strengthened investigations and indictments, an area where the ICC has struggled. These were all elements that either undermined confidence in the Office of the Prosecutor or, arguably, hampered its efficiency.

The Registry also has a number of practices and inefficiencies that are so widely recognized that the current and relatively new Registrar undertook a significant project, a ‘ReVision’ (of the Registry), the title of which speaks for itself.

One can identify other elements of ICC practices ripe for reform and change, as reflected in an extensive and probing recent report by a group of experts. There are no magic bullets, but steps can be taken to increase the credibility of the institution as whole.

So, while Bosco is right in asserting that the practice of high politics is an important and essential part of the ICC and that its leaders, particularly the Prosecutor, need to manage those relationships (particularly the signaling that goes back and forth), this is not enough for the Court to begin to fulfill its mandate and deliver on its promise. In my view, this is the key point: it is one thing to be credible to governments, but another to move beyond concerns about the P-5 and other important powers to demonstrate credibility to victims and affected communities and ultimately to build credibility among the international public.


The Sort of Justice the ICC Can and Cannot Deliver

Sarah Nouwen is a lecturer in law at the University of Cambridge, Deputy Director of the Lauterpacht Centre for International Law and fellow of Pembroke College. She is the author of Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge University Press, 2013)

David Bosco’s Rough Justice: The International Criminal Court in a World of Power Politics is not just fluently written and rich in original interview materials. It also makes an important argument: the relationship between the International Criminal Court (ICC) and the world’s most powerful states has been one of mutual accommodation. In Bosco’s terminology, major powers may not have ‘marginalised’ the Court (or, in the case of the United States: it has shifted away from doing so), but they do to some extent ‘control’ the Court. They do so as members of the Security Council, shaping the Court’s docket by referring situations to the Court without providing additional funding, thereby absorbing the Court’s capacity for the situations they consider warranting investigations; through signalling their preferences and dislikes in informal meetings with ICC officials; and by providing information and other forms of assistance in situations where they are happy with ICC involvement, and withholding it where they are not. The ICC, for its part, does not take direct instructions from the major powers, but has internalised their wishes in its decision-making processes, particularly when deciding whether to open an investigation. It has not challenged the ways in which the Security Council has attempted to shape the Court’s jurisdiction, even where resolutions tried to exclude people from the Court’s personal jurisdiction, and it has not opened investigations in situations where the major powers would object. As a result of this mutual accommodation, the major powers have not merely tolerated the Court but, in some specific instances, even actively supported it.

The argument is important even if not surprising. To anyone who has observed the actions of the ICC over the past ten years it seems evident that the Office of the Prosecutor (OTP) has opened investigations only where the major powers have given a ‘no-objection’ indication (eight African states), while it has taken no action beyond a ‘preliminary examination’ where the major powers have great interests (for instance, Afghanistan, Colombia, Georgia, and now, Palestine). It also comes as no surprise to scholars participating in conferences during which diplomats representing the major powers (in fact, mostly the US) signal to ICC judges on the front row of the same audience how the ICC should act—posing rhetorical questions that require no answer from the academic panel, but follow-up in practice. It comes as no surprise to attendants of the annual Assembly of States Parties, where the US, not a state party, has a bigger representation than many a state party. And it comes as no surprise to those who frequent diplomatic receptions in The Hague, where ICC officials mingle freely with European and US representatives.

The argument is important because of the way in which Bosco makes it. First, it is common for this argument to be made by observers, only to be contested by Court officials who insist that the current distribution of ICC activities around the world is the result of the pure application of law. Having extensively interviewed ICC officials and major-power representatives, Bosco, however, deploys his interview material in such a way that it is almost as if the officials themselves are making his argument for him. In the interviews, some court officials seem to express a sense of pride in their political savviness and satisfaction with their ability to placate the United States. As Bosco also points out, they often stress, in the same breath, their legal independence as well as their political usefulness. In this sense, the book reads as an inadvertent ‘coming out’ of a court that reveals its political nature to a world that had known all along.

Secondly, Bosco’s book sheds light on the various ways in which this mutual accommodation takes place and shows its nuances. For instance, he distinguishes between the Prosecutor’s great-power sensitive attitude in opening investigations and the bolder approach in selecting cases within those situations. More nuances could be explored — for example, to what extent does his argument apply only to the OTP and to what extent also to the judges? And does his entire argument apply to all nine states that he considers major powers (the P5 + Japan, Germany, Brazil and India)? Has the Court been as deferential to, for instance, Brazil as to the US?

The implications of this important argument are mostly left to the reader to surmise. Bosco seems to end on both a realistic and an optimistic note. Realistic in the sense that he concludes that the Court is more likely to reflect the double standards of existing global governance structures than to alter them. Optimistic in that he argues that other international justice initiatives (among which the post-WWII tribunals and the courts for the former Yugoslavia and Rwanda) were similarly constrained, and yet were celebrated and served as inspiration for the ICC. He concludes that it would therefore ‘not be surprising if the world is willing to tolerate an international justice system constrained by major-power interests’.

There is reason to pause here. Were these tribunals truly celebrated, universally? One could argue that it was not their success, but their major shortcoming — selective justice — that served as inspiration for the creation of a permanent international criminal court with potentially global jurisdiction. Many non-major-power states signed up to the ICC precisely because of its promise of equality before the law: this international institution might be able to do what less powerful states could not do individually, namely hold the more powerful states, through their individuals, to account. Hence the insistence of many developing countries that the Court’s jurisdiction included the crime of aggression, a crime characteristically committed by the more powerful vis-à-vis the less powerful. The other side of Bosco’s argument that major powers control an international court is thus that smaller powers, in particular developing countries, have suffered yet another disillusionment in the emancipatory potential of international law (for other examples of international law’s boomeranging against those states taken by its promise of equality, see Sundhya Pahuja’s “Decolonising International Law”).

The implications of Bosco’s cogent argument are thus potentially much grimmer than he suggests, and many could be mentioned. But let’s focus here on two, namely one related to what the Court cannot do and one concerning what type of justice the ICC actually does. The ICC was established as a permanent international criminal court, complementary to national criminal jurisdictions, to investigate and prosecute international crimes within its jurisdiction with a view to addressing impunity. Pursuant to the complementarity principle, the Court is meant to address impunity in those instances where a case is not being, or has not been, genuinely investigated or prosecuted at the domestic level. One of the key causes of impunity at the domestic level is the pervasiveness of patronage systems, namely systems in which governments obtain loyalty from powerful actors in exchange for arms, government positions, cash, security, and indeed, impunity. In such scenarios, the state is unwilling or unable to call perpetrators to account, leading to an absence of genuine proceedings, and thus to admissibility of cases before the ICC. However, as Bosco’s argument suggests, the ICC itself is also embedded in a de facto patronage network: to some extent it accepts impunity with respect to powers on whose cooperation it depends in order to achieve accountability for others. Consequently, it is not just states but sometimes also the Court that is inactive. However, there is no ‘court of final resort’ to back up ‘the court of last resort’. Some types of impunity thus appear beyond the reach of the Rome Statute.

If justice is interpreted to mean criminal accountability, then the fact that some people are shielded from such justice does not mean that others should or would therefore go scot-free, too (see also the ICTY in Čelebići, para. 618). On that view of justice, a Court subjected to major-power political constraints seems better than no Court: every bit of accountability is welcome. However, as soon as one adopts a more holistic conception of justice, the continued selective operations of the Court are more problematic. For instance, if one considers equality before the law as an element of justice, then the current practice may do more harm than good: material inequality among states leads to de facto inequality among individuals. Moreover, by cloaking that inequality in legal procedures and arguing that all the Court does is follow the law, the Court is effectively affirming material inequality among states, and transforming it into a juridically relevant fact, thus justifying a departure from the principle of equality and legitimising and further entrenching inequality (see, more elaborately, here). That inequality does not merely dictate who ends up in the Court’s detention centre and who does not. It also determines who intervenes where in the world under the legitimising cloak of international criminal justice. Bosco shows how an initially anti-ICC US Government favoured the Court’s intervention in northern Uganda because it provided a hook for more western military involvement in Africa. And the ICC bestows such military operations with legitimacy, sometimes even explicitly. For instance, an OTP official has stated:

“We have our shopping list ready of requests for assistance from the American government … The American government first has to lead on one particular issue: the arrest of sought war criminals. … We need … the operational support of countries like the U.S., to the DRC, to Uganda, to the Central African Republic, to assist them in mounting an operation to arrest [LRA leader Joseph Kony]. They have the will – so it’s a totally legitimate operation, politically, legally – but they need this kind of assistance. And the U.S. has to be the leader.”

Thus, as Adam Branch has observed, ‘the doctrine that some justice is better than no justice can end up not only making justice conform unapologetically to power, but also making justice an unaccountable tool of further violence and injustice’.

Another type of justice negatively affected by the practice of selective criminal accountability is that of distributive justice. As Frédéric Mégret has argued, international criminal justice distributes blame. While in a cosmopolitan vision it does so only among bare individuals, it is in practice also seen to distribute stigma among the communities to whom these individuals belong. With its current focus, the ICC distributes all the blame to Africa. In an attempt to justify this focus, Court officials have painted Africa as the heart of darkness. The OTP, for instance, has stated:

“About targeting Africa. There are 14 accused, all of them are Africans. There are more than 5 million African victims displaced, more than 40.000 African victims killed, thousands of African victims raped. Hundreds of thousands of African children transformed into killers and rapists. 100% of the victims are Africans. 100% of the accused are African.”

By conjuring this bleak image, the OTP not only explicitly justifies its Africa focus. It also implicitly exonerates the rest of the world. The fact that all the attention of the world’s only permanent International Criminal Court is usurped by Africa invariably suggests that the world’s worst crimes and worst criminals reside in and stem from that continent. Crimes committed on other continents, and the role of other actors in creating the conditions for African crimes, thus become officially invisible as a result of the ICC’s averted eye. Selective justice as a result of mutual accommodation between the ICC and major powers thus has unjust distributive effects.

In sum, David Bosco’s argument is more important than his book suggests. For its implication is not merely the obvious one that the ICC cannot overcome all power politics—it is also that in its genuine pursuit to do some justice, it can end up doing some injustice, too.

The ICC Still Has a Chance

Aryeh Neier is president emeritus of the Open Society Foundations. He was president from 1993 to 2012. Before that, he served for 12 years as executive director of Human Rights Watch, of which he was a founder in 1978. He worked 15 years at the ACLU, including eight years as national executive director. He served as an adjunct professor of law at NYU for more than a dozen years, and has also taught at Georgetown University Law School and the University of Siena (Italy). Since 2012, he has served as Distinguished Visiting Professor at the Paris School of International Affairs of Sciences Po.

For more than three decades, since the transition from military rule to democratic government in Argentina in 1983, efforts to secure accountability for great crimes committed by public officials and leaders of guerrilla forces have been at the forefront of the concerns of the international human rights movement. The result has been establishment of so-called “truth commissions” in nearly fifty countries, mostly in Africa and Latin America, to disclose past human rights abuses and assess responsibility; vetting processes, sometimes called “lustration”, primarily in some former communist countries of Eastern Europe, to bar those implicated in past abuses from certain public positions; and, most notably, criminal trials in national courts, ad hoc international tribunals and in the permanent International Criminal Court. While all these efforts show mixed results, including a few that are regrettable, in combination they have produced a level of accountability for severe abuses of power that is unprecedented and that would have been previously unimaginable. Though leaders of the most powerful states of this era have so far not faced such proceedings, that may not continue indefinitely. Certainly, we have reached a point where high officials of less powerful states would be foolhardy to assume they can commit great crimes and enjoy impunity for the rest of their lives. It is no longer unusual for some whose crimes are long past to face a reckoning.

Consider Latin America. A former military dictator of Argentina, Jorge Videla, died in prison in 2013 while serving a life sentence. Another former military dictator of Argentina, Reynaldo Bignone, who is also serving a life sentence, will probably also die in prison. Augusto Pinochet, the former dictator of neighboring Chile, avoided such a fate because the courts of his country eventually decided when he was in his late 80s that he was too weak, physically and mentally, to be put on trial. The former military dictator of another country in the southern cone of Latin America, Juan Bordaberry, died in 2011 shortly after he was sentenced to prison for thirty years. A former President of Peru, Alberto Fujimori, is now in prison, serving a 25 year sentence. A former military dictator of Guatemala, Efrain Rios Montt, was sentenced in 2013 to thirty years in prison for crimes against humanity and fifty years for genocide before his sentence was overturned on difficult-to-understand procedural grounds by the country’s Constitutional Court. Though he is now 88 and in poor health, supposedly he is to be retried. Jean Claude “Baby Doc” Duvalier avoided trial for the crimes he committed when he was “President for Life” of Haiti when he died last October of a heart attack at age 63.

All these cases came before national courts. In the case of Pinochet, three countries, Spain, the United Kingdom and Chile, all had a part, and it was only because of the actions of the courts of the two European countries that the Chilean courts were ready to act. The Pinochet case in Chile also led to many prosecutions of lower level military officers for their crimes during the sixteen year dictatorship in that country. In Chile and several other Latin American countries, hundreds of military officers are now in prison, serving sentences or awaiting trial for crimes committed more than a quarter of a century ago.

The ad hoc international criminal tribunals are also responsible for a high level of accountability. This is particularly true for the tribunals for the former Yugoslavia, for Rwanda and for Sierra Leone; and even a few of those responsible for the atrocious crimes committed by the Khmer Rouge in the 1970s are now serving prison sentences. In general, the ad hoc international tribunals, like most national courts that have dealt with such matters, have conducted good quality trials. Principles of due process have been maintained. There have been significant acquittals as well as convictions.

The great disappointment for human rights advocates who have promoted accountability has been the performance up to now of the International Criminal Court. Since coming into existence twelve-and-a-half years ago, it has secured just two convictions, neither involving leaders with the highest level of responsibility for the crimes in their country. By now, it is necessary to raise questions about the ICC’s failure to achieve more. Is the concept of a criminal court with worldwide jurisdiction fundamentally flawed, or are their critical shortcomings in its design? Are there faults of judgment or execution by the court itself, and particularly by the Office of The Prosecutor, that account for its poor showing? Have major powers doomed the court to failure by unwillingness to support its efforts? Or is the ICC just off to a poor start, as was also the case – for a much shorter period – in the case of the ad hoc tribunals for ex-Yugoslavia and Rwanda?   Will the Court start demonstrating its worth and significance and, over time, fulfill the aspirations of those who sought its creation?

David Bosco does not try to answer all these questions, but his even-handed, well-researched and astute study provides us the information and analysis we need to think about these questions, debate them and formulate answers. Some, like me, who are eager to see the Court succeed, may be reluctant to speak bluntly about such matters. We may fear that expressing criticism will further weaken a body we should defend against those who want it to fail.

Putting aside that concern, my view is that the ICC’s failure to achieve more up to now reflects a combination of factors. At least one, I believe, is inherent in the concept. That is, it is impossible to imagine that the Court would enjoy independent capacity to enforce its actions. It may only secure the presence of defendants through their voluntary appearance or through assistance by those who control the territories where defendants are located. Such assistance will often have to be provided as a result of pressure from the major powers. Similarly, the ICC cannot by itself compel the presence of witnesses or the production of evidence.   It is also limited in its independent ability to send investigators to sites where crimes took place. The likely consequence is that, in the absence of substantial support from the major powers, the ICC will mainly be able to deal with crimes committed by leaders who have been defeated militarily or overthrown within their own countries. The successes of the ad hoc international tribunals are attributable in large part to cooperation they eventually obtained from major powers, such as those that deployed troops in Bosnia under NATO following the war there. So far as national prosecutions are concerned, it has only been after democratic governments came to power that former military dictators and their collaborators were made to face judgment.

A flaw in the design of the Court that is probably impossible to overcome and, therefore, might be regarded as a flaw in the concept, is that without the involvement of the UN Security Council, the ICC only has jurisdiction in the territory of the 122 states that are members of the Court or over the forces of member states. Many states where abuses are common have not become members and are unlikely to do so. In the absence of a Security Council resolution, the ICC cannot address the crimes committed in states such as Syria or North Korea. As such states may have protectors among the permanent members of the Council with veto power, the ICC is unable to address many ghastly crimes that should fall within its jurisdiction. Unfortunately, there seems no feasible way to address this shortcoming.

Faults of judgment or execution by the Court itself ought to be less difficult to overcome.   David Bosco’s study reinforces my view that the Court might have fared better up to now if the first prosecutor had been somewhat wiser and somewhat bolder in dealing with the major powers. Mr. Bosco points out that the work of the court “appeared to be occurring within a major-power comfort zone.” This seems a fair assessment of the first Prosecutor’s unwillingness to initiate prosecutions involving Afghanistan and Colombia and in the war between Russia and Georgia. In each of these cases, of course, there were good arguments against prosecutions. On balance, however, I think the ICC would have been strengthened and justice would have been served if prosecutions went forward and – this is crucial – if the Prosecutor also were able to personify justice in speaking publicly on behalf of such actions. The first prosecutor of the Tribunal for the Former Yugoslavia, Richard Goldstone, through his ability to embody justice, enabled that body to acquire the credibility that ultimately made it a success. I think the current ICC Prosecutor may demonstrate that she too has the capacity to play such a role.

Can the Court recover from what has already been a rather lengthy poor start? I think so. At this writing, at least two major issues involving the Court’s jurisdiction are in the news. One involves the resolution of the UN General Assembly calling on the Security Council to refer North Korea to the ICC. Will China and/or Russia veto a referral?   The other involves the effort by Palestine to become a member of the Court, and implicitly, to get the ICC to deal with such matters as the Israeli settlements and the conflict in Gaza.   Though it is not possible to foretell the outcome of these developments, their public significance shows that the world has not written off the ICC. Despite shortcomings and obstacles, it still has a chance to demonstrate that it can make a major contribution to the cause of accountability. Those of us who wish to advance that cause should help the ICC do its best and, at the same time, acknowledge that there are significant limits on what it may be able to accomplish.

The Inevitably Difficult Choices a Prosecutor Faces

Alex Whiting is a Professor of Practice at Harvard Law School focused on international and domestic criminal justice issues. From 2010-2013 he was Investigation Coordinator and then Prosecution Coordinator in the Office of the Prosecutor at the International Criminal Court. From 2002-2007 he served as a Trial Attorney and then Senior Trial Attorney at the ICTY.

David Bosco has written a terrific book on the first decade of the ICC, capturing how strategic considerations can help shape the decision-making of the Office of the Prosecutor (OTP) at the International Criminal Court (ICC), as well as the actions of major states that interact with the Court. The book is carefully researched and beautifully written, and it recounts in often fine-grain detail some of the real-world considerations that touch the OTP on an almost daily basis (from my experience working there). It is a must-read for anyone trying to understand how the Court operates.

I offer a cautionary note about the takeaway from the book, a thought about what the book implicitly shows regarding the significance of the Court, and finally a suggestion about future research and thinking about the OTP.

First, in summarizing the book’s thesis it is important not to lose the nuance and complexity contained in the book. It would be a mistake to conclude that the book simply shows that the OTP seeks to avoid conflict with major powers, including the United States, and in this way essentially does the bidding of those powerful states. This reading might be tempting because it aligns with other (pernicious) narratives at play in discussions about the Court, in particular that the Court has “targeted” weak countries in Africa. But the truth is otherwise and more complex. The OTP does not quake at the prospect of incurring the hostility of major powers. The reality is that the Court faces critical reactions and pressures from political actors all the time and is quite used to it. As Bosco describes in the book, the ICC was born into an environment of open hostility by the United States, and in later years the Prosecutor pushed forward with an arrest warrant for Omar Al Bashir in Sudan and warrants for Muammar Gaddafi and two others in Libya while knowing that these steps were not necessarily welcome in Western capitals. The Prosecutor never adopted a strategy of great-power accommodation, and I think that those diplomats from major powers who engaged with the Prosecutor would be more surprised than anyone to hear him described as “accommodating.”

At the same time, there is no question that major powers and not-so-major powers can shape the environment in which the OTP works. And is that really a surprise? After all, it is a deliberate design feature of the Court that it has extremely limited powers, though often it is evaluated and judged as if it had the tools and authority of a domestic criminal justice system. Accordingly, the Court is completely dependent on cooperation from states, NGOs and other organizations to conduct its investigations and prosecutions. As Antonio Cassese wrote, “[i]nternational criminal courts remain entangled in and fettered by the intricacies of sovereignty.” This dependence can create a space for states to affect the work of the Court, and in some cases completely stymie its progress. That is true for big and small states. Bosco suggests that the Court has hesitated to plunge into an investigation in Afghanistan or Georgia because of the presence of the United States and Russia, respectively, but it is also the case that the strong resistance of Kenya and Sudan to ICC investigations there have also undermined the workings of the Court. When the ICC investigates in a country it will generally succeed only if it has cooperation from the country itself or from influential countries that can compel cooperation (as happened with the ICTY).

So when the OTP sets its priorities it must consider how best to use its limited resources in a world where (sadly) there are many places demanding its attention. One factor it will consider among many is the likelihood of success (defined as a thorough and credible investigation). Afghanistan and Georgia involve non-State Parties that are not likely to give their full cooperation to the Court, and certainly could not be expected to arrest suspects and deliver them to The Hague. The situation with Palestine is the same since Israel is not a State Party, and for that reason I have predicted that the Court will not move quickly to open a full investigation. When the Security Council referred Sudan and Libya to the ICC, the expectation was that these referrals would be backed by continued Security Council support as investigations and prosecutions progressed, but that has not turned out to be the case, which may give the Court pause when there are future referrals. At the same time, the prospects for success may affect the priorities of the Court but will not necessarily determine ultimate outcomes. The OTP has not dropped the preliminary examinations in Afghanistan and Georgia and it has opened one in Palestine. Ultimately, even if the prospects for success are low, the OTP may feel compelled to move forward on all of these cases. The OTP may be strategic and realistic, but it is also principled and is both motivated and constrained by the law contained in its Statute. In sum, therefore, major powers (as well as smaller powers) can affect the environment in which the Court operates and, in this way, can affect the work of the Court, but they do not therefore “control” the Court.

Second, I think Bosco’s book shows that despite the ICC’s limited powers and its ability to prosecute only a few cases in each situation, its influence remains significant. It is striking that countries care so much about what the Court does and that major powers, in particular the U.S., have chosen to engage constructively with the institution. Why? Why don’t they just ignore the Court? It is clear that the ICC has significance that far surpasses the few cases it is able to do. Even the possibility of an investigation, let alone an actual investigation, can have important repercussions. The Court’s focus on a particular situation has the power to frame the debate that can in turn shape the larger political and diplomatic discussion. For this reason, the Court matters, and major and less major powers will continue to pay attention to it. It is, and will continue to be, relevant.

Third, the book touches on but does not directly seek to resolve the normative question of whether the OTP should act strategically. I believe, and I am quoted in the book on this point, that it should, but I recognize that this can be controversial and it is certainly complicated. The Prosecutor has the obligation to investigate and prosecute cases over which she has jurisdiction under the Statute, but she is also building an institution with a limited number of tools. Should she consider the political environment in which she operates when applying the law? Should she think about Afghanistan and Georgia differently than other cases? When she starts an investigation and she has the choice of investigating just one side or of being shut out and foreclosed from investigating either side, what should she do? What compromises, if any, should the Prosecutor accept? When is half a loaf better than no loaf? How important is success, even if it is limited and incomplete? These are hard questions for which there are no easy answers. Institutional and legitimacy concerns often fall on both sides of the equation. If the Prosecutor acts too strategically, then she risks appearing unprincipled and undermining the legitimacy of the Court. Yet if she pays no heed to strategic considerations, she risks spending precious resources on efforts that will fail, exposing the fragility and weakness of the institution and also potentially undermining its legitimacy. Thus the Prosecutor is left to balance these two approaches in light of the particular factors in each case. Sometimes she’ll tilt more one way, sometimes the other, and sometimes a zig-zag will be required. There is no one approach that will work in all cases. Instead she is continually required to make difficult (and often legitimately debatable) judgment calls based on incomplete information and unpredictable and evolving circumstances. Is there a way to think about how the Prosecutor should think about these decisions? Could more thinking be done on how the Prosecutor should balance the different imperatives in each case? Bosco’s book opens this debate but does not attempt to resolve it.

Power Politics and its Global Shadows: From Margins to Center

Kamari Maxine Clarke is a Professor of Anthropology and Law. Her research explores issues related to social and political theory, legal pluralism, international law, and the interface between legal institutions and the related production of knowledge and power.  She is the author of over forty books and articles.  Her most recent book is entitled Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press, 2009).  She is now in the process of completing a book on The African Union’s recent creation of a criminal chamber to address international crimes on the African continent.

Rough Justice: The International Criminal Court in a World of Power Politics is an eloquently articulated book about international criminal law and American unipolar power in the twenty-first century. Combining international relations (IR) scholarship with an unprecedented mapping of the conceptualization, growth, and crystallization of international criminal justice, author David Bosco tells a story about the play of power amongst “powerful states” as it relates to the formation and development of the International Criminal Court (ICC). By taking up the way that IR and legal scholars have conceptualized the workings of globally dominant state powers – especially in dealing with international organizations they do not formally control—the book explores the ways that major state powers have approached the ICC with either “marginalization” or “controlling” behavior. Moving beyond Robert Keohane’s classic theory (1984) that repeated interactions can produce rational cooperation, Bosco invokes the work of IR scholars, Barbara Koremenos, Charles Lipson and Duncan Snidal to argue that while the spectrum of state behavior – ranging from active marginalization, to control, and acceptance – can be deployed to manage the ICC, western states such as the United States have used forms of mutual accommodation to neutralize the threats of ICC encroachment. Bosco argues that major state powers have attempted to control the ICC (by engaging formal mechanisms such as the UN Security Council or informal diplomatic measures). In this way, the Court has become an instrument for “major powers” to respond to the instability of “weaker states”.

Yet, as much as Bosco’s conceptualizations of influence, decision-making, and the politics of state behavior are laudable, his trajectory reflects the workings of certain forms of power and does not fully take into consideration a large part of the story. By distinguishing between national states according to categories such as “strong” and “weak,” he sets himself up to miss nuances that are actually critical to how power and influence work in formal and informal settings. For example, once we recognize that the story of the origins of ICC justice is not simply one about the power of “strong” and “weak” states, we begin to understand international relations in more complex ways. We are called to make sense of the force of law, the play of sub- and supra-state power, and the relevance of political economy in the messy engagements between the Global North and the Global South.

Bosco begins his book with an inquiry into why and when so called “powerful” states joined or did not join the Rome treaty system. He spends very little time, despite the ICC’s Africa focus, exploring why those African states that eventually became the subjects of ICC investigations joined the treaty. Instead, he describes how political jockeying among Western states after Nuremberg and during and after the Cold War was key to contemporary state behavior among “strong states”. For Bosco, politics and control of the ICC is pivotal. He described crimes that were defined under the subject matter jurisdiction of the Court in the following way: “Efforts by some states to include crimes that had not been clearly defined internationally, including terrorism and drug trafficking, failed” (52). However, an investigation into why economic crimes failed and what that failure meant in relation to the de facto immunity of various Western states is critical to a full appreciation of the story. The identification of certain core crimes in the Rome Statute is consequential: whether the core crimes were spectacular and individuated crimes or economic crimes like drug trafficking is relevant to what ultimately comes under the Court’s jurisdiction. Rather than reading the construction of Rome Statute crimes as revealing broader political interests, however, Bosco instead takes up questions concerning the structure of the Court that are based on an acceptance that its subject matter jurisdiction occurs outside of the political. This assumption, that the making of the subject matter jurisdiction of the Court is separate from the play of politics, appears to establish his comfort with ICC crimes as political and individually driven rather than enabling crimes involving multiple economic interests, Western and nonwestern, rebels or democratically elected, and this orients his analysis of the brute forms of justice that are underway in the first decade of the ICC’s existence.

Because political economy and micro-politics of power are bracketed in Rough Justice, African resource-driven violence is relevant only insofar as it relates to Africans becoming subjects of the Court. What is missed – as a result – are the economic drivers of conflict and those Western interests that are being protected. Instead, the book asserts that the statute gave the Court jurisdiction over four crimes: aggression, genocide, war crimes, and crimes against humanity. These crimes are classified as those already elaborated in international law and therefore enjoying widespread acceptance. In the end, Bosco highlights the fundamentally “political” aspects of those crimes but stops short of analyzing the conditions of legal possibility by which African states became subjects of the ICC. Through his focus on the negotiations of major powers he forecloses the relevance of African states in ICC deliberations. Yet,it is the “powerful states” that shaped the conditions in which African states rather than European states became subjects of the Court, and in the shadows were a range of other crimes, enabling crimes, that Bosco dismisses without comment. And herein is the surprising absence in Rough Justice: the link between resource struggles that contributed to violence and the conditions of possibility in which enabling crimes fell outside of the Court’s orbit.

It is not possible to tell the story of the contemporary ICC and focus on the negotiations of Western powers without making connections between Western resource interests, plunder, and endemic violence. Despite the focus of Rough Justice on Western state power and its relationship with international institutions, the macro-story is actually one of continuities in economic disparities and the workings of broader structures of power. It is true that Northern states remained outside of the reach of the Court for all of the reasons that Bosco explains. However, such instances of inequality are not marginal to the play of international power. Rather, they are central to the way that African leaders or African rebel leaders and not US or French or British leaders became pivotal to the ICC’s exercise of personal jurisdiction. This analytic gap is compounded by the missing explanations of why a regional majority of ICC state parties joined the ICC in the first place. In fact, it was not the spirit of Nuremberg that inspired the moral impetus of African-ICC involvement. Rather, the Rwandan genocide and the euphoria of post-apartheid South Africa contributed to the mobilization of African interests in setting up a body that might deter such mass violence in the future. Further, many African states joined the ICC treaty system based on the formal and informal pressure of Western states, institutions, and civil society groups. Western state actors tied international treaty participation to monetary lending; signing treaties like the Rome Statute were used as statistical indicators for predicting various state economic outcomes. From state stability, state fragility, and the probability of violence, such measures helped to propel new rule-of-law institutions and contributed to the conditions under which submission to international treaties was initially welcomed by many states, as it allowed for the renewal of various aid package and loan renewals. With the shift to new linkage measures that connected demonstrations of good governance and the renewal of critically important loans (from the International Monetary Fund and the World Bank for example), signing international treaties became an indicator of good governance measures and was increasingly represented as state sanction of the new international order. These realities are critical to understanding the increasing significance of African states in the exercise of Rough Justice, and their absence from Bosco’s analysis is curious.

Africa enters Bosco’s analysis in relation to African violence seen as separate from Western interests. However, the violence in Africa pursued by the ICC, is not simply a narrative of violence begetting more violence. The discovery and extraction of natural resources like oil, diamonds, and gas has compounded situations of armed conflict across the African continent. Oil-rich Nigeria, for example, experienced ten successive military coups beginning in 1966, just a few years after independence and immediately following the discovery of its reserves. The struggle to control Nigeria’s government has always been in large part a struggle to control its massive resources. Minimal attention was given to developing state institutions. Instead, a highly centralized federal body with little to no accountability formed in its place. This is a pattern repeated across the continent. So it isn’t surprising that the race for political control in many African countries has led to electoral violence, and in some cases the development of rebel groups vying for political influence and the control of various extraction industries. The recent histories of the Democratic Republic of the Congo, Somalia, Liberia, Nigeria, Uganda, Sierra Leone, and Congo-Brazzaville all fit this trajectory – each with various international companies, rebel groups and governments deeply embattled in controlling resource extraction across Africa. In ICC ‘situation countries’, the reality is no different. From oil to coltan to various diamonds, gold and timber, the control of natural resources has been amongst the most important factors in Africa’s major conflicts. In the DRC, attempts by various actors to gain control over gold, coltan, and tin extractions such as tantalum and tungsten – used in commercial cellular phones, ipods, digital cameras and video recorders – continues to drive this complex conflict, drawing in neighboring states such as Rwanda that are backed by Western powers. Amongst the most central resource is oil; African states account for close to twelve percent of the world’s oil with large amounts being extracted from Nigeria, Cameroon, Equatorial Guinea and North Africa, as well as Sudan, the DRC and Chad – all regions that have recently experienced related conflict. Similarly, control of the Central African Republic and the DRC’s diamonds are also central to two of the ICC’s situation countries. Foreign multi-national corporations have been involved in extracting minerals in addition, to various African rebel groups engaged in fighting for control of those resources or selling them illegally. These realities demonstrate the relevance of highlighting economic crimes, such as pillage, alongside those seen as more spectacular such as genocide, crimes against humanity, war crimes and the crime of aggression. They also call into question the modes of liability for such violence that became framed through the individualization of criminal responsibility.

The second absence in Rough Justice is the relevance of the anti-ICC response by African states as a critical component of the play of power in the past six years of the Court’s existence. Since the warrants of arrests issued by President al-Bashir in Sudan and subsequent African leaders, as the basis for their growing opposition to ICC interventions, various African leaders began to criticize publically the ICC for its partiality and selectivity of African defendants as well as for the de facto immunity enjoyed by the West. Yet, Bosco’s timeline ends at the moment when a new development is underway in international relations jockeying – namely, the Africa-ICC push-back. Contrary to his 10-year analysis that focuses on the US and P5 power, developments have taken shape since 2012 by which the Court has started to take the objections of African states more seriously. Most notably, the Court’s second Prosecutor, Fatou Bensouda, as well as a large group of States Parties, have called for “a dialogue” with the AU and with individual African states.

The election of Uhuru Kenyatta and William Ruto as President and Deputy President of Kenya in March 2013 has shifted the African landscape as it relates to the ICC. In the fall of 2013, the commencement of Ruto’s trial and Kenyatta’s pre-trial hearing generated such political turmoil that the Court and its States Parties were forced to respond. At the 2013 Assembly, States Parties ‘gave in’ to one of the AU’s demands by amending the Court’s rules on presence at trial for those accused before the Court who also fulfill extraordinary public duties at the highest national level–such as sitting Heads of State. As a result of perceptions of inequality, various African states criticized the ICC and called for amendments to the Rome Statute, insisting that sitting Heads of State should become immune from prosecution by the Court.

African leaders have also expedited the process of establishing the African Court of Justice and Human and People’s Rights (African Court). This involved extending the jurisdiction of the African Court to include a range of transnational crimes and introducing modes of liability that include individual and corporate liability. The result was the early formation of an ‘African Criminal Court’, which expands punishable crimes from crimes against humanity, war crimes, genocide, and the crime of aggression to those seen as relevant to Africa’s economic resource wars and illegal economies. The expansion of punishable crimes includes piracy, mercenarism, terrorism, corruption, illicit exploitation of natural resources, money laundering, the crime of unconstitutional change of government, and the trafficking of drugs, persons, and hazardous waste. These developments, as well as the reality of economic drivers of conflict, are central to the play of power in international institutions– not peripheral to it. They are an example of the workings of itinerant forms of power that prove difficult to trace within the “strong” state paradigm that Bosco’s analysis employs. To capture the complexity of the ICC’s work and the broader political economy in which it operates, we must carve out conceptual spaces for understanding human action and behavior that are not tied to rational cognitive processes leading to mutual accommodation, but that instead capture the inchoate and messy responses to international law. These responses reveal other assemblages that are as central to how “rough” justice can be when justice is understood through the conditions of possibility, the entanglements of interests, and the real effects of power.