On the Eve of the AU Summit: How the ICC is Being Defended

[This appeared originally on Justice in Conflict on 11 October, 2013.]

As African leaders publicly question their support for the International Criminal Court, a wide range of ICC supporters have rallied to its defense. Here, along with my co-author, Chris Tenove, we use a framework put forward in our recent paper in the International Journal of Transitional Justice to examine the allies and the forms of authority that the Court can turn to. (Chris is a doctoral candidate in Political Science at the University of British Columbia and a semi-regular JiC blogger.)

Representatives of African Union governments recently gathered to hold an “emergency summit” in Addis Ababa to discuss the relationship between AU members and the International Criminal Court. The summit was a critical test of the ICC’s authority. Several commentators have already considered the meeting’s significance, potential outcomes and implications (and offered their own suggestions). Here, we would like to discuss what the summit tells us generally about what international criminal justice is and how it works. In particular, we would point to claims about the ICC’s authority made by those who rally to its defense.

In a recently published paper, we propose a framework explaining which actors are involved in international criminal justice (ICJ), what kinds of fundamental rules and practices motivate them and what forms of authority they wield. We think our approach sheds light on the upcoming emergency summit. Notably, while some may see gamesmanship and deal-making by international diplomats only as a threat to the ICC’s legitimacy, we argue that the Court in fact draws legitimacy from inter-state diplomacy. A critical juncture like the AU summit exposes how actors deploy this and other forms of authority to defend the Court and the broader field of ICJ.

Our framework, which brings together insights from our respective fields of International Relations and Sociology, has two principle components. First, we see international criminal justice as a field–a sociological concept rooted in the work of Max Weber and Pierre Bourdieu. Actors in a field share certain practices and adhere to fundamental “rules of the game”, even when they compete with one another. The rules of the game for ICJ include, among others, the assumptions that certain egregious acts should count as violations of international law by individuals rather than states and that there are formalized processes of proving and punishing these violations. Importantly for our framework, and for our reading of the AU summit, the ICJ field has developed at the intersection of three well-established, powerful and global fields: criminal justice, human rights advocacy and inter-state diplomacy. [For those interested, there are a number of great examples of contemporary field analyses—see, e.g., MedvetzStampnitzkyAdler-Nissen and Mudge and Vauchez, to name a few.]

(Graphic: Peter Dixon and Chris Tenove)This positioning provides ICJ institutions like the Court with access to valuable forms of authority, the second component of our model. We propose that the various actors who engage with the field of ICJ try to advance their position – and advance the field of ICJ – through different claims to authority. Following the influential work of IR scholars Michael Barnett and Martha Finnemore, we identify four forms of authority, all of which we can see at play in the discussions surrounding the upcoming summit. ICJ actors draws on delegated authority because states create and authorize tribunals to act as their agents in the pursuit of particular mandates. ICJ practitioners make claims to legal authority, due to international criminal law’s overlap with public international law and domestic criminal law, as well as the legitimacy of legal norms and practices in modern societies. Practitioners draw on moral authority by proposing that ICJ addresses terrible forms of violence and suffering, and by creating and mobilizing victims of international crimes as a transnational constituency. Finally, ICJ actors advance their expert authority by claims to possess specialized knowledge.

These forms of authority are important to the ICC because, lacking an army and possessing a relatively small budget, it has limited access to other “harder” forms of power. The Court’s influence is thus highly dependent on whether other actors accept the legitimacy of its claims to authority. Those who contest the ICC can do so in two ways. They can challenge the Court’s claims to possess these four forms of authority, such as when a group claims that the Court harms rather than helps victims. Those who oppose the ICC can also advance alternate forms of authority, such as when a leader argues that his role in defending the nation trumps legal rules, or when accused persons claim that fellow members of a particular group should value group solidarity over concerns about the suffering of victims or condemnation from the international community.

The impending AU summit has prompted many competing claims about the ICC’s authority. Here are a few illustrative examples:

  • Tawanda Hondora, the deputy director for law and policy for Amnesty International, made a series of appeals to the moral authority of the ICC, that are characteristic of human rights advocates. “Today, the AU must stand firm with the victims of human-rights violations allegedly perpetrated by their own leaders,” he proclaimed.
  • A coalition of 163 African and international civil society organizations wrote an open letter to AU members that defended the legal and moral legitimacy of the ICC, but emphasized in particular its delegated authority. The Court, they claim, does follow the intent of its African co-creators. They point to article 4 of the AU’s Constitutive Act and note that the majority of cases were triggered by requests from African governments, and that African members on the UN Security Council voted in favour of ICC jurisdiction over Libya and Sudan.
  • By contrast, South Africa’s International Relations Minister, Maite Nkoana-Mashabane, has questioned the delegated authority of the Court: “South Africa is going to [the AU] meeting to participate, fully aware of the developments that are taking place. We were there when the ICC was formed. We have all the rights as member states to sit back and say is this exactly what we thought we were forming?”
  • And Fatou Bensouda called on her legal authority to defend against attacks on the Court’s delegated authority with the oft-repeated statement that “this is a judicial process, the outcome of which is independently decided by judges. The Office of the Prosecutor stands ready to engage in any legal debate regarding its on-going cases in Kenya.”

Finally, we would note that an attack on the ICC and its associated norms does not invalidate them, provided there is a sufficiently robust response. To take a different example, the recent use of chemical weapons generated such a massive and widespread reaction that the taboo against their use was reinforced and even strengthened. Similarly, the recent challenges to the ICC provide an opportunity for supporters to defend the legitimacy of the Court and the broader ICJ field by drawing creatively and strategically on delegated, legal, moral and expert authority. ICJ’s position at the intersection of criminal justice, human rights advocacy and inter-state diplomacy provides the Court with powerful allies. Should the arguments of the ICC’s supporters win the day, this episode may, paradoxically, reaffirm the Court’s autonomy and legitimacy. But a very different outcome is also possible.

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One thought on “On the Eve of the AU Summit: How the ICC is Being Defended

  1. I really appreciated the approach defining International Criminal Justice as a “field” for international and transnational relations: it is a key point (especially in a “realpolitik” perspective) in order to understand choices and behaviours of the States and other players.
    I really got the impression (recently confirmed by the Red Cross) that many people do not understand that even behind International Justice there are clear interests, driving (trying to) its development.
    To me, only when we do recognize this, we might understand a certain underlying rationality.

    Nevertheless, it seems to me that being ICJ at the cross section of three different fields, it is somehow more “weak” compared to the others, because it depends on each of them.

    I also wonder if we could drive a comparison between these fields and sources of legitimacy and those indentified by Bernan for the developing national judicial systems of middle age Europe: for sure, in both cases the expert authority plays an important role; most probably a moral authority could also be reasonably found in any debate involving rights and “conflicts”; definitely the kings and the pope in the middle age used some kind of “delegate” authority when establishing the courts and finally, a “legal” authority was then drawn from the ancient roman and canon law…

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