Introduction

The adoption of the International Criminal Court’s (ICC) founding treaty, the Rome Statute, formally initiated the ratification process that brought the ICC into existence. Perhaps more significantly, it also inaugurated a far-ranging effort to embed the Statute in the domestic legal framework of states. As one legal scholar has ambitiously characterised it, the Statute was a ‘quasi-legislative event that produced a criminal code for the world’.Footnote ¹ Conceived and led largely by the same global civil society network that had pressed for the Court’s establishment,Footnote ² these campaigns for national implementation have been intimately linked to the principle of complementarity. The Coalition for the International Criminal Court (CICC) notes that, ‘For the principle of complementarity to become truly effective, following ratification, States must also implement all of the crimes under the Rome Statute into domestic legislation.’Footnote ³ Similarly, Amnesty International claims that a state that fails to enact national legislation ‘would risk being considered unable and unwilling genuinely to investigate and prosecute crimes within the Court’s jurisdiction’.Footnote ⁴ By connecting complementarity to implementation, the ICC, it is thought, will catalyse the development of a more robust national framework for prosecuting international crimes.Footnote ⁵

This chapter undertakes a close examination of the Rome Statute’s implementation in the domestic jurisdictions of Kenya and Uganda.Footnote ⁶ Its contention is two-fold. First, implementation has become an increasingly sophisticated exercise in applying the Statute as a ‘global script’ to a diverse array of national contexts.Footnote ⁷ NGOs, advisors and legal consultants who offer counsel to states on how to reform their domestic legal and constitutional frameworks have each developed Rome Statute ‘model laws’ and implementation ‘toolkits’. This growing ‘transnational expert community’Footnote ⁸ has, in turn, engendered an increasingly strict interpretation of what complementarity purportedly requires: it reflects a desire for uniformity between the Statute and its application at the domestic level.

Second, the ICC itself did not catalyse the passage of national implementation legislation in Kenya or Uganda. Rather, implementation of the Statute in both countries was accelerated in order to ‘perform’ complementarity for predominantly international audiences. In Uganda, the country’s role as host of the 2010 Review Conference of the Rome Statute (‘ICC Review Conference’) hastened a legislative process that had long stagnated, while, in Kenya, the desire to publicly demonstrate a departure from the election violence of 2007–2008 ‘fast-tracked’ implementation of the Statute there. In Uganda, however, subsequent efforts to abandon the country’s long-standing amnesty program have been met with strong opposition, signalling significant discomfort with the domestic ICC legislation’s retributive framework. Similarly, in Kenya, the initiation of ICC investigations in 2009 fractured the apparent unanimity of the country’s political class over the desirability of the domestic legislation it had ratified only one year prior, even as they united former political rivals Uhuru Kenyatta and William Ruto.Footnote ⁹

The union of these two factors – uniformity of application and the power of external constituencies – was largely responsible for driving the implementation process in both countries, but it glossed over deeper political fissures about the desirability of international criminal law as a framework for domestic accountability. These political contestations were subordinated in the short term, but have never abated. Further, the focus on identical implementation of the Rome Statute at national level raises troubling questions about the African continent’s equal and consensual participation in the creation of this body of law. Rather than focusing on implementation as a ‘catalytic effect’Footnote ¹⁰ in itself, then, this chapter queries the costs that ‘a liberal orthodoxy about what international criminal law should be’Footnote ¹¹ might pose to other normative ideals, such as legal pluralism or deliberative, democratic debate.

This chapter proceeds in four parts. It first briefly identifies the arguments that have animated why implementation of the Rome Statute’s substantive and procedural provisions should be understood as a duty of ICC member states, even when, as a legal matter, it is not clear that such an obligation exists. The second section focuses on how international NGOs and the capacity-building sector – communities of practice with a shared interest in implementation – have drawn on these arguments in their promotion of implementation guidelines and ‘model laws’. I suggest that these tools have contributed to a view of implementation as an increasingly disciplinary exercise, one that privileges conformity with the Rome Statute. Through process tracing, part three turns to the particular experiences of Uganda and Kenya to show how, in each country, it was not the ICC, but the mediated influence of external actors and events that pushed the implementation process forward. However, as the fourth section illustrates, key political questions that were overlooked in this process soon re-emerged. Based on these histories, the chapter concludes by focusing on three dimensions of implementation: as purity, as politics, and as a form of political theatre.

A duty to implement?

The incorporation of treaty protections is one form that the legal protection of human rights may take at the domestic level. Implementation thus reinforces not only the primacy of states in international law but also a general rule: states, in general, have far-going freedom as to the manner in which they give effect to their international obligations. As Ward Ferdinandusse argues, however, the extent of this freedom can be ‘easily overestimate[d]’, particularly in the context of international criminal law.Footnote ¹² Many scholars have argued that the special character of international humanitarian law distinguishes it from other crimes, thus requiring greater fidelity to the manner of its implementation at the national level. Similar arguments point to the uniquely expressivist function of international criminal law as requiring its identical enunciation in national law.Footnote ¹³

The Rome Statute has become a growing site of contestation over the duty and scope of states to implement its provisions in their own domestic legal orders. Many commentators root a duty to implement in a purposive reading of the Rome Statute, particularly its preambular language, which recalls ‘that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’.Footnote ¹⁴ For example, David Donat Cattin, secretary-general of the influential Parliamentarians for Global Action (PGA), argues that the principle of complementarity ‘implies that States shall fully implement the Rome Statute in their domestic legal orders in order to comply with their primary responsibility to realize the object and purpose of the treaty (and [Rome Statute] system)’, which is ‘to put an end to the impunity of the [individual] perpetrators of the most serious crimes of concern to the international community as a whole and to contribute to the prevention of such crimes’.Footnote ¹⁵

Yet the text of the Statute requires only that a country’s domestic law facilitate cooperation with the ICC and that it criminalise offences against the ‘administration of justice’.Footnote ¹⁶ There is no obligation as such to implement its substantive (or procedural) provisions. As Alain Pellet notes, ‘neither the signatory States nor even the States Parties have any clear obligations to bring their domestic legislation into harmony with the basic provisions of the Rome Statute’.Footnote ¹⁷ Furthermore, as a matter of treaty interpretation, the preambular recital is not part of the Statute’s operative text; rather, it merely ‘recalls’ a suggested pre-existing duty, not one arising from the treaty itself.Footnote ¹⁸ Thus, while states may be obliged to investigate or prosecute crimes based on other rules of international law, it would appear, as Sarah Nouwen has argued, that the recital ‘merely reflects an aspiration, just like many of the other preambular considerations’.Footnote ¹⁹

The difference between ‘ordinary’ and international crimes has also been advanced as a basis for domestic implementation. In the context of the ICC, the academic Jann Kleffner has been one of the strongest proponents of this position. He argues that, ‘Implementation can only be considered satisfactory if it comprehensively and effectively covers the entire range of conduct criminalized by the Rome Statute, without adversely affecting pre-existing obligations under international law that go beyond the Rome Statute, and while taking into account the need to fill gaps in the legislation that may lead to impunity, such as those resulting from the absence of universal jurisdiction.’Footnote ²⁰ ICC actors have endorsed Kleffner’s view. Sylvana Arbia, the ICC’s former registrar, writes that, ‘Without [implementing legislation], states could be left in the position of prosecuting only for some of the constitutive acts of the crimes, such as murder and rape. This could undermine the basis of national prosecutions, and may invite the ICC’s Judges to take jurisdiction where this might not be needed.’Footnote ²¹

Distinguishing between ordinary and international crimes was critical to the criminal tribunals for Rwanda and the former Yugoslavia, both of which, unlike the ICC, enjoy primacy over national jurisdictions.Footnote ²² The Rome Statute, however, makes no such distinction: states are permitted to prosecute international crimes as ordinary crimes, provided that their doing so is not deliberately designed to shield perpetrators from criminal responsibility. Indeed, during the drafting of Article 20(3) on ne bis in idem (the principle that a person should not be prosecuted more than once for the same criminal conduct), states explicitly rejected a proposal that would have made a case admissible before the ICC where the national proceeding failed to consider the international character or grave nature of a crime.Footnote ²³ For this reason, the Statute instead refers to the ‘same conduct’ of an accused, ‘to make clear that a national prosecution of a crime – international or ordinary – did not prohibit ICC retrial for charges based on different conduct’.Footnote ²⁴ Article 93(10) further supports this interpretation, as it refers to the Court providing assistance to a state party ‘conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crimes under the national law of the requesting State’.Footnote ²⁵

Finally, implementation discourse reflects anxieties about fragmentation in international law more generally.Footnote ²⁶ As Carsten Stahn and Larissa van den Herik note, ‘One of the inherent features of international criminal law is a desire for uniformity’, which ‘flows from the need for “certainty, stability and predictability” [that] is required in criminal proceedings’.Footnote ²⁷ A related concept is that the Statute establishes a common criminal floor. Cattin, for instance, sees the Statute as posing a ‘minimum standard for national criminal justice systems exercising their primary responsibility: States can do more, but shall do no less, than what the Rome Statute prescribes, so as to ensure that all crimes against humanity, war crimes and acts of genocide be duly incorporated in the relevant legal order and not left unpunished.’Footnote ²⁸ The fact that international criminal law enforcement is increasingly migrating from international tribunals to national courts makes the idea of minimum standards (often referred to as ‘international standards’) particularly attractive when the ‘landscape of domestic justice is diverse and partly schizophrenic’.Footnote ²⁹ To that end, ‘the play between … unity and diversity, is one of the discursive patterns used by the [legal] discipline to deploy criticism and propose reform projects’.Footnote ³⁰ Faithful domestication of the Rome Statute, as the following section details, is one such project.

Implementation and standardisation

While implementation is itself a political process – an act of state – human rights NGOs, particularly international ones, have played a significant role in influencing debates about what domestication of the Rome Statute requires.Footnote ³¹ Many of these organisations maintain offices in ICC situation countries, creating a vital, vertical network between those sites where international criminal law is produced – The Hague, Brussels, Geneva, New York – and enacted. There now exists an array of implementation materials prepared by these organisations. As early as 2000, Amnesty International created a ‘Checklist for Effective Implementation’, while Human Rights Watch and the International Centre for Criminal Law Reform published similar manuals shortly thereafter.Footnote ³² As part of its ‘Global Advocacy Campaign for the International Criminal Court’, the CICC maintains a detailed, on-going chart of those states that have either enacted, or are in the process of enacting, ‘Rome Statute Crimes Legislation’ and/or ‘Cooperation Legislation’.Footnote ³³ The coalition also includes a resource page with links to ‘model’ national implementation laws, as well as ‘template statutes’ endorsed by various regional organisations like the Commonwealth Secretariat.Footnote ³⁴

The Commonwealth’s Model Law – of particular relevance to Kenya and Uganda – is a 58-page document with prepared language that closely tracks the text of the Rome Statute. While noting that, ‘there is no “one-size-fits-all” solution to the complex process of domestic implementation’, the Law presents itself as ‘model legislation (i.e. a textual basis to be modified and adapted to a given national system)’.Footnote ³⁵ Interested states are invited to insert the name of their country at relevant points throughout the document, and to include select optional additional provisions, ranging from the appropriate penalties for crimes (‘imprisonment for a term not exceeding 30 years or a term of life imprisonment when justified by the extreme gravity of the crime’) to extending the law’s coverage to violations of the Geneva Conventions.Footnote ³⁶

Various ‘best practice’ tools for implementation supplement such material. One such tool is the National Implementing Legislation Database (NILD). NILD seeks to provide users with ‘access to a fully-searchable, relational database of national implementing legislation’.Footnote ³⁷ Part of the ICC’s Legal Tools project,Footnote ³⁸ NILD describes itself as ‘an invaluable tool for national legislators who have not yet adopted, but are considering or drafting implementing legislation, enhancing their capability to draft effective legislation drawing upon previous experience of fellow State Parties’.Footnote ³⁹ NILD further allows states that have adopted legislation to ‘monitor the impact of their legislation on other States and undertake necessary amendments if the content of the Rome Statute changes, or if improvements are deemed necessary’.Footnote ⁴⁰ One publication highlights not only NILD but also other Legal Tools projects as well – Case Matrix, a Means of Proof Digest – as examples of access to legal information. It notes that such access ‘should be provided in line with this new paradigm shift towards positive complementarity that focuses on strengthening domestic capacity and empowering national actors’.Footnote ⁴¹

These tools accompany the literature of NGOs, which endorses a similarly maximalist approach to implementation. According to Amnesty’s implementation checklist, ‘principles of criminal responsibility in national legislation should be at least as strict as … the Rome Statute’.Footnote ⁴² This includes, for instance, that ‘all crimes of accessory criminal responsibility such as aiding, abetting, and direct and public incitement as contained in Article 25 [of the Statute] should be punishable under national law’.Footnote ⁴³ Conformity with the Statute has also been presented as encompassing far-reaching procedural requirements: Human Rights Watch notes that states ‘should guarantee the highest international standards for fair trials at the national level’, as ‘these rights will … be important in the determination of the admissibility of a case by the ICC’.Footnote ⁴⁴ Such standards would include not only programs of victim and witness protection but even procedural regimes unique to the Rome Statute, such as a trust fund for victims or provisions for victim participation. A related issue is punishment: effective implementation, it is strongly suggested, would be inconsistent with the death penalty.Footnote ⁴⁵

These documents illustrate that even where commentators and NGOs acknowledge that the Rome Statute contains no positive obligations to implement its substantive (or procedural) law provisions, the principle of complementarity is presented in a manner that nevertheless compels it. As a technique of governance, the approach to implementation is thus increasingly disciplinary: failure to abide by the purported requirements of the Rome Statute opens states up to the risk that the ICC will intervene. This view has been furthered by much academic commentary on implementation (noted above), which overwhelmingly focuses on fidelity to the Rome Statute’s text.Footnote ⁴⁶ Thus, just as the coercive pull of complementarity – welcomed by those who see its outcome as salutary – could encourage national proceedings, it might also ‘induce national courts … to conform to a variety of modalities that mimic those found in international criminal law regarding sanction (i.e., no death penalty) and procedure (i.e., a fair trial)’.Footnote ⁴⁷ The proliferation of ‘model laws’ abets this process. Indeed, as will be seen, the Kenyan and Ugandan ICC laws are themselves largely identical, insofar as they are both drawn from the Commonwealth Secretariat’s model legislation.

Implementation in practice: Uganda and Kenya

Surfacing political discomforts: post-implementation domestic politics

Implementation as purity, as politics and as ‘performance’

The histories recounted herein suggest three tentative fault lines around implementation of the Rome Statute and its relationship to complementarity.

Conclusion

Implementation narratives typically present the process as part of a march towards global consensus – as something above the state, rather than a part of it. ‘Model’ laws and toolkits facilitate this process; however, as this chapter has suggested, such questions of technique overwhelmingly privilege uniformity with the Rome Statute, often stifling deeper political debates within the state itself. Moreover, the outsized role of external actors and constituencies in these processes – most of whom regard deviation from the Statute with suspicion – raises questions about who the agents of implementation are, as well as the content and form of the domestic legislation that is enacted. Efforts to progressively narrow discussions about alternative forms of justice from the Ugandan ICC Act, or the mistaken belief that a domestic Rome Statute could not incorporate economic crimes in Kenya, suggest a view of implementation driven less by domestic political interests than in replicating the Statute as a ‘global script’.

Thinking of implementation as beyond fidelity to the Rome Statute could free a space in which to think more critically about its productive potential. As this chapter has illustrated, implementation is a politically fraught and dynamic process; it continues long after legislation is formally passed. In Uganda, domestic debates over the fate of Thomas Kwoyelo and the future of the country’s transitional justice process continue to evolve; in Kenya, threats by parliamentarians to repeal the ICA or withdraw from the Court reflect deeper contestation over the ICC’s selective geographies and Western origins. These uneven trajectories suggest that implementation is a site for contestation but, equally, for experimentation and innovation as well. In short, implementation can be a site for states to also develop this dynamic body of law in a manner that better reflects their national interests and local contexts. All roads need not lead to Rome.

Introduction

The Democratic Republic of Congo’s (DRC) ratification of the Rome Statute in 2002 created expectations in a country devastated by years of war. Several national armies and multiple militia and rebel groups had committed atrocities in a territory the size of Western Europe without a properly functioning justice system.Footnote ¹ Proponents of the newly established International Criminal Court (ICC) hoped that it would be able to hold perpetrators accountable for war crimes, crimes against humanity and genocide.

A decade later, the ICC’s involvement in the DRC is a tale of symbolic achievements and difficult compromises. The country has been one of the most active situations for the Court, with the cases of Germain Katanga, Mathieu Ngudjolo, Bosco Ntaganda and Thomas Lubanga all coming before the ICC’s chambers. However, the government’s promises of ‘ending impunity’ ring hollow to many Congolese. Atrocities continue to be perpetrated in some regions, and parliament has failed to meaningfully reform the domestic justice system. There is also a glaring impunity gap for past crimes: the United Nations has documented over 600 unresolved cases of serious human rights violations committed between 1993 and 2003.Footnote ²

This chapter examines how international criminal justice has been interpreted, implemented and contested within the DRC. Rather than focusing on the trials of Congolese nationals in The Hague, it shifts the geographical frame to the DRC to the domestic level, given that efforts at national level to secure accountability for international crimes have received less scholarly attention. The chapter explores how the Congolese authorities have invoked, applied and ‘misapplied’ the Rome Statute to support the government’s policy of la lutte contre l’impunitéFootnote ³ amidst the broader context of the ICC’s intervention in the country. Importing international norms and standards into the Congolese legal system has produced contestation between various institutional actors over: (1) who controls the process (the Ministry of Justice, the Senate, the National Assembly?), (2) where justice should be administered (civilian or military tribunals?), and (3) how to interpret international criminal law (according to the aspirations of conflict-affected communities or the expectations of international actors?). While the chapter draws attention to the achievements of the Congolese authorities in prosecuting grave crimes, it also suggests that the political and legal conflicts over implementing the Statute have led to some distortions (‘misapplications’) of the legal framework applicable to international crimes at the domestic level.

The chapter begins with a brief overview of the Congolese legal system, followed by an assessment of the Congolese Parliament’s attempts, over the course of 2010 and 2011, to overhaul the legislative framework for international crimes, in particular through Rome Statute implementing legislation and a government-backed hybrid court.Footnote ⁴ It then considers how Congolese courts have used the Statute to reinterpret and change domestic criminal law.

The Congolese legal system: institutional framework and substantive law

President Joseph Kabila and his ministers of justice have stressed on a number of occasions that strengthening the rule of law and the ‘struggle against impunity’ are among the government’s most important objectives.Footnote ⁵ The Congolese Constitution of 2006 laid the groundwork for a number of sweeping reforms in the domestic justice system. The principle of the separation of powers was introduced for the first time, and several individual rights gained constitutional status, in particular the right to a fair trial, the presumption of innocence and the principle of legality.Footnote ⁶ The Constitution also created a new institutional hierarchy in the justice sector: the bifurcated system of justice, in which military and civilian courts co-exist on an equal footing, was to be gradually phased out. The High Military Court (Haute Cour Militaire) was to remain the supreme military jurisdiction, but its decisions would be subject to judicial oversight by the (civilian) Court of Cassation (Cour de Cassation). Thus, military tribunals would be made accountable to civilian (democratically accountable) authorities.Footnote ⁷

However, years after the enactment of the Constitution, only some of these institutional reforms have been implemented. The Court of Cassation has not been established. Its functions are still performed by the Supreme Court of Justice (Cour Supreme de la Justice), which is also acting as the Constitutional Court (Cour Constitutionnelle) and the State Council (Conseil d’Etat).Footnote ⁸ Furthermore, depriving the military of its institutional powers and shifting them to new and inexperienced civilian bodies has proved easier on paper than in practice.

Despite efforts to give civilian courts jurisdiction over international crimes, at the time of writing Congo’s military courts retain authority over the prosecution of international crimes.Footnote ⁹ Genocide, war crimes and crimes against humanity are not criminalised by the regular criminal code (code pénal ordinaire), which is applicable to civilians. Enacted in 1886 and substantially revised in 1940, its provisions predate international crimes as a legal category. The new draft criminal code integrates verbatim the Rome Statute’s definitions of international crimes, but it remains to be seen whether this legislation will be enacted.Footnote ¹⁰

International crimes were first criminalised in the 1972 Code of Military Justice or CMJ (code de justice militaire).Footnote ¹¹ The Military Criminal Code or MCC (code pénal militaire) and the Military Judicial Code (code judiciaire militaire) were enacted following a series of legislative reforms undertaken towards the end of the Second Congolese War.Footnote ¹² None of these military codes have statutes of limitations for international crimes, which means that, at least in theory, crimes extending as far back as the early Mobutu era can still be charged under domestic military criminal law.Footnote ¹³

As a monist legal system, international treaties can be applied directly by Congolese courts without further enabling legislation at the national level.Footnote ¹⁴ The 2006 Constitution allows courts and tribunals to apply ‘international treaties duly ratified’, and the supremacy of international law over regular laws – but not the Constitution itself – is also recognised.Footnote ¹⁵ The Rome Statute, like other international treaties, can thus be invoked and applied (subject to further legal requirements) by Congolese national courts. Given that the Mobutu regime acceded to many international humanitarian law (IHL) and human rights treaties, and that customary rules of IHL were in force throughout this period, international crimes have been part of the Congolese legal framework in a broader sense for a relatively long time.Footnote ¹⁶

However, in a country where a significant proportion of such crimes has been and continues to be perpetrated by the armed forces, it appears unlikely that key perpetrators will be held accountable within the existing institutional framework. The entire Congolese judicial system suffers from a lack of resources and personnel. These difficulties are further amplified within the military justice system,Footnote ¹⁷ whose hierarchical command structure leads to political interference and institutional pressures, and curtails a number of due process rights.Footnote ¹⁸ There are also legal obstacles to trying some members of the military. For one, under Congolese military law at least one member of the judicial panel must be of equal or superior military rank to that of the accused.Footnote ¹⁹ Furthermore, amnesty bills, though formally inapplicable to international crimes, have been interpreted broadly to shield some members of the military from prosecution.Footnote ²⁰ Lastly, the Congolese military’s sweeping powers also extend to trials of civilians,Footnote ²¹ which is considered a violation of international custom.Footnote ²²

This brief overview of the Congolese legal system suggests that international crimes have been criminalised in the DRC for the past forty years through a patchwork of domestic military criminal law, international treaties and customary international law. However, the institutional framework, in particular the military’s control of prosecutions of international crimes, has made enforcement of these norms very difficult. Thus, while the Rome Statute’s entry into force in 2002 altered the landscape of international criminal justice, has yet to bring about a radical re-articulation of the domestic legal framework for prosecuting international crimes in the DRC.

Implementation

Military justice: the Rome Statute and domestic criminal law

Aside from the political contestations surrounding the implementing bill and the Special Court, there is also the legal dimension of holding individual perpetrators to account. Prosecutions of international crimes at the national level produce a variety of challenges; to that end, the second part of this chapter explores why and how the military judicial authorities in the DRC have turned to the Rome Statute to support domestic trials. Observers have lauded these trials as a breakthrough, but they have also generated their own institutional and interpretive conflicts within the domestic justice system as to the relationship between national law and international norms.Footnote ⁴⁹

Conclusion

In 2003, President Joseph Kabila argued that, ‘because of the specific situation in my country, the competent authorities are unfortunately not capable of investigating [international] crimes or undertaking the required inquiries without the participation of the International Criminal Court’.Footnote ¹⁰⁶ While some authors have criticised the self-serving nature of Kabila’s self-referral and the selectiveness of the OTP’s investigations in the DRC,Footnote ¹⁰⁷ there is little doubt that the Congolese justice system still faces daunting challenges. The inconsistent codification of international crimes in the MCC and the military tribunals’ historical jurisdiction over such offences reflect the military’s disproportionate influence on criminal justice, and remain a compelling reason for aligning the domestic legal and institutional framework with internationally recognised standards.

The Rome Statute has played an important role during the last ten years as a catalyst for judicial and legal reform at the domestic level. In over a dozen trials, the military tribunals have drawn on the Statute and applied the case law of international tribunals, leading to many important convictions. The legal framework of the Statute was also the driving force behind two important initiatives: the specialised chambers, which initially sought to establish a domestic mechanism with international elements for adjudicating international crimes, and implementing legislation, which could put in place a robust accountability framework for the future. Thanks to the efforts of Congolese civil society and the work of international organisations, knowledge about the ICC and international criminal justice increased considerably during this time.

However, the history of these two initiatives also speaks to the political dimensions of the international justice project. The political context of the ICC’s intervention in the DRC (and increasingly in other African countries) has made international actors – NGOs and donor states alike – uneasy bedfellows for some Congolese parliamentarians, and undermined the viability of more sweeping judicial reform in the country. For some military judges, the role of international law in addressing mass atrocities remains vague. These difficulties should be borne in mind as the DRC continues to search for viable ways to ensure accountability for past and continuing human rights violations.

Introduction

This chapter considers how the International Criminal Court (ICC) and Colombia employ international criminal justice towards different political and normative objectives. It attempts to show how Colombia has adopted and ‘vernacularised’ international justice to assert control over the terms by which the Colombian conflict is understood and represented.Footnote ² I argue that this process, in turn, seeks to entrench the Colombian government’s power domestically and internationally.

Colombia has been in the midst of an ongoing conflict between paramilitary groups, guerrilla groups and the national army for over fifty years. The conflict has been marked by extreme violence, including massacres, torture, forced disappearance, forced displacement, sexual violence and other war crimes and crimes against humanity. Colombia signed the Rome Statute in December 1998 and deposited its instrument of ratification in August 2002. The state has been under preliminary examination by the Office of the Prosecutor (OTP) since June 2004, which makes it the oldest situation classified as such. Since then, the Colombian government has developed a new approach to the conflict, adopting the normative frameworks of international criminal law and transitional justice, actively cooperating with the ICC in developing legislation, and conducting national trials for war crimes, crimes against humanity and genocide.

It has been argued that the best way of achieving the primary goal of the ICC – fostering accountability for serious international crimes – is through ‘positive complementarity’, whereby the Court encourages or assists national prosecutions.Footnote ³ This has been a cornerstone of the ICC’s approach in Colombia.Footnote ⁴ The OTP has been active in consultations with Colombian actors and has followed the domestic legislative progress, which has had an impact on the development of the country’s transitional justice legal framework. It has also influenced the evolving narrative of the conflict itself.

There is a growing body of literature analysing the influence of the ICC in situation countries and its impact on domestic procedures and conceptions of justice.Footnote ⁵ However, most literature regarding the ICC’s work in Colombia focuses on issues of compliance and complementarity. Little has been written about the broader effects of ICC involvement in Colombia, including its normative, expressive and discursive dimensions. This chapter explores the ‘vernacularisation’, or uptake, of international justice norms in Colombia and the expressivist goals of criminal justice in that context. In particular, it will explore how the ICC and the Colombian government take different approaches to theories of justice, which in turn have had an impact on the government’s conflict narrative. An important distinction exists between narratives created out of popular memory and those created out of representations of the past adopted by state institutions.Footnote ⁶ This chapter posits that the narrative being asserted by the Colombian government seeks to entrench state power using the terms of international justice; in so doing, it threatens to reproduce historic societal inequalities.

‘Vernacularisation’ and customisation

Social scientists have explored how ‘international’ ideas are disseminated in domestic contexts. Finnemore and Sikkink, for example, focus on the important role of transnational advocacy networks in what they call a ‘justice cascade’.Footnote ⁷ Others have focused on the idea of the ‘diffusion’ of international concepts to domestic levels, explaining a ‘top-down’ transfer from the international to the national.Footnote ⁸ These theories focus on the adoption of legal norms.

Looking beyond the strictly ‘legal’, Peggy Levitt and Sally Merry describe the process of local interpretation and adoption of international ideas as ‘vernacularisation’.Footnote ⁹ They argue,

The process of vernacularisation depends on a number of factors, including the position of ‘vernacularisers’ within hierarchies of power and institutional positions. In Colombia, transitional justice norms have been invoked by various actors, including victims, as well as armed groups such as the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia), also known as FARC.Footnote ¹¹ The focus here, however, is primarily on ‘elite actors’ – the Colombian government and the ICC – as opposed to what Levitt and Merry call ‘marginal actors’.Footnote ¹² According to Levitt and Merry, elite actors are more likely to adopt international ideas early on, making them culturally legitimate through customisation.Footnote ¹³ The uptake and vernacularisation of international norms, especially through state administrative functions, can be a mechanism through which states seek to entrench state power.Footnote ¹⁴

In Colombia, the government drew ideas and practices from the field of international justice and presented them in terms that elite networks in Colombia would accept. The government has thus vernacularised these norms in ways that ensure it can control the conflict narrative while purportedly working on behalf of conflict-affected victim communities. However, as I discuss below, this customisation has also produced contestation with the ICC, has served as a mechanism to entrench state power, and has perpetuated political inequalities in Colombian society.

The ICC and its complementarity regime heavily influence the terms through which the conflict is addressed in Colombia. Under the Rome Statute’s legal framework, national courts are ostensibly allowed to pursue a case before the ICC can act. However, the ICC, particularly through the OTP, retains influence over the domestic process through its ability to monitor, evaluate and, ultimately, judge what it deems the correctness or appropriateness of the Colombian government’s investigatory and prosecutorial approach.Footnote ¹⁵ To that end, the OTP has adopted the practice of opening ‘preliminary examinations’ before deciding whether to open an investigation.Footnote ¹⁶ The OTP also influences the process of vernacularisation through its positive complementarity policy, by which it seeks to promote national proceedings through capacity building, sharing information and promoting support for accountability efforts with international donors.Footnote ¹⁷ As argued here, the interpretation of prosecutorial strategy has been one site of vernacularisation and customisation.

Another way in which international legal discourse and its attendant norms have been taken up in Colombia is through the stated value of criminal prosecutions. The ICC and Colombia take two distinct approaches to the value of criminal prosecutions. The ICC focuses on the retributive value of trials; the Colombian government, on the other hand, focuses more on their expressive value. According to Mark Drumbl, ‘expressivism … transcends retribution and deterrence in claiming as a central goal the crafting of historical narratives, their authentication as truths, and their pedagogical dissemination to the public’.Footnote ¹⁸ As discussed below, the Colombian government has repeatedly emphasised the value of trials for providing truth to victims, but seems to specifically avoid punitive rhetoric.

Ultimately, atrocity crimes trials produce sites of contestation in addition to expressing messages about political power. These messages arise out of the manner in which trials are designed, implemented and defended or attacked. In the Colombian context, these contestations over narratives reflect power differentials between the domestic and the international. Also, and perhaps more importantly, they reflect uneven power relations between members of Colombian society – in particular, the frequently invoked but historically disenfranchised ‘victim’ of atrocity. As the following section shows, recourse to the framework of international criminal law and its discourse of accountability narrows the narrative of Colombia’s conflict history.

A brief history of Colombia’s conflict

The modern Colombian conflict emerged from an ideological battle dating back to La Violencia, a violent struggle between liberals and conservatives between 1948 and 1957. A power-sharing agreement called the National Front attempted to resolve that conflict. After the National Front was established in 1958, far-left groups who had been excluded from the political process formed small armies of guerrilla soldiers in the vast remote regions of the country. The FARC and the National Liberation Army (Ejército de Liberación Nacional, or ELN) were among the largest of these groups.Footnote ¹⁹ In the 1970s, wealthy landowners and drug lords formed their own private armies with the assistance of the government and military, to protect their interests from expropriation by the guerrillas.Footnote ²⁰ These paramilitary groups eventually joined forces under an umbrella organisation, the United Self-Defence Forces of Colombia (Autodefensas Unidas de Colombia, or AUC).Footnote ²¹

Despite its origins in ideological differences between paramilitary groups and the government, the current conflict is based on battles for land, money and control over drug routes. It has been well established that the guerrillas, paramilitaries and the government have all committed gross human rights abuses throughout the country. The state and paramilitary forces have worked together closely, with the paramilitary forces responsible for a large majority of human rights abuses. These abuses include massacring villages, torture, extrajudicial killings, kidnapping and forced displacement, amongst others. The government has adopted a variety of policies – inconsistently fluctuating between amnesty and military power – to fight the leftist guerrillas, with limited success.Footnote ²²

Exclusion and inequality have also pervaded the Colombian conflict, sustained by the absence of the state in many parts of the country and its inability to effectively govern in areas where it is present.Footnote ²³ In remote areas, which make up the large majority of the state, the judiciary is weak. (It is, for instance, often unwilling or unable to enforce or impartially interpret contracts.) This lack of connection between the state and the everyday lives of citizens enhances the social and legal exclusion experienced by many Colombians.Footnote ²⁴

Developing a shared notion of justice and an authoritative narrative of the Colombian conflict is a process that challenges deeply entrenched understandings of the conflict. Communism, drugs, state power and terrorism have all been considered causes of the conflict; indeed, the very notion of conflict itself has been contested. The Colombian government previously denied the existence of an armed conflict, instead treating it as a state of emergency or as a series of terrorist attacks.Footnote ²⁵ ‘Solutions’ to the conflict have included numerous attempts at negotiations with the various armed groups and have generally included amnesties. Under the ‘shadow’ of the ICC, however, that has evolved into a narrative that readily acknowledges violence as a product of internal armed conflict, that focuses on victims and victims’ rights to the truth and that moves away from total amnesties to a sense that at least a limited form of accountability is necessary.

Colombia’s vernacularisation of international justice norms

Many sectors of Colombian society have adopted and translated the language and norms of transitional justice and international criminal law to characterise the conflict. The government, in particular, has vernacularised international justice norms as victim-oriented, broader than criminal trials and part of an expressive ‘transitional justice’ that will help establish the ‘truth’ about the conflict. Through importing international legal discourse into the Colombian political context, the government has crafted a narrative that depicts non-state perpetrators as the main actors that abuse the rights of otherwise passive victims. At the same time, this detracts from instances of state violence and avoids punitive discourse.

The adoption of such a framework is not surprising in a state with a deep tradition of legalism.Footnote ³¹ Historically, judicial formalities and language have had a strong impact on social interactions among Colombians.Footnote ³² Legalism has been used as an ideological pretext for exclusion and impunity, and to derail social movements and reduce their potential transformative value.Footnote ³³ The law has also influenced how the conflict in Colombia was fought. Armed groups adjusted their tactics away from large massacres to selective and smaller acts to make legal investigations within the framework of international humanitarian law and human rights more difficult.Footnote ³⁴ Colombia has continued to adapt this legalist tradition to the language of international justice by passing numerous laws and decrees – which can be referred to collectively as Colombia’s ‘international justice framework’ – after the government signed the Rome Statute. The following section outlines the main contours of this framework.

The ‘shadow’ of the ICC

An examination of the Colombian framework, beyond its strictly legal components, shows ongoing power struggles over Colombia’s sovereignty and its role in shaping the conflict narrative. Colombia’s approach to the ICC has been relatively accommodating: it publicly acknowledges its relationship with the OTP and the importance of working together. The reach of this message of cooperation extends both externally and internally. Colombia’s president has made a point of the state’s cooperation with the ICC at the highest levels of international politics, including at the UN General Assembly.Footnote ⁶⁶ Significantly, the government has acknowledged the Court’s role in the historic peace agreements with the FARC.Footnote ⁶⁷ Bringing the ICC into this delicate situation shows a deep level of engagement. By adopting and strategically employing the ICC’s normative framework, however, the Colombian government can further entrench its influence at the national level.

The Colombian government has largely taken up the ICC’s terminology for framing crimes, but it has appropriated these terms in order to exert its own authority over the justice process and to reassert its sovereignty. This can be seen in Colombia’s adoption of a similar prosecutorial strategy as the ICC. Faced with a burdened JPL process and a growing number of cases in the normal courts, as well as pressure from the ICC to investigate those ‘most responsible’, Colombia has adopted a prosecutorial strategy that prioritises the prosecution of leaders over the rank and file. The ICC has reacted negatively to this policy, and has suggested that, should Colombia fail to investigate lower-level perpetrators as well, it could violate its obligations under the Rome Statute. The Court thus appears to be pushing back against Colombia’s assertion of sovereignty over its domestic proceedings, as is made particularly clear through the behaviour of the OTP vis-à-vis domestic initiatives.

It appears that the OTP is attempting to control the scope, content and goal of the prosecutions through evaluating the Colombian national proceedings and assessing whether its criminal justice framework fits within the normative vision of the ICC. The OTP has commented on nearly every piece of Colombian legislation dealing with atrocity crimes and has even been involved in discussions about the current peace talks with the FARC.Footnote ⁶⁸ Members of its staff have conducted multiple trips to the region, holding public and private meetings with government officials.Footnote ⁶⁹ The OTP has issued several press releases about Colombia and, exceptionally, released a report in 2012 on its activities there.Footnote ⁷⁰ The report asserted that there were reasonable grounds to believe that both non-state and state actors had committed war crimes and crimes against humanity. It also stated that its priorities will be to focus on the continuation of national proceedings, particularly proceedings related to those ‘most responsible’ and to crimes including forced displacement, sexual crimes and the false positive cases.Footnote ⁷¹

The prosecutor’s report reveals the way in which the ICC exercises various oversight practices over the Colombian process. The OTP evaluated the national proceedings, labelling the JPL a ‘transitional justice mechanism’ and noting that it was ‘designed to encourage paramilitaries to demobilise and to confess their crimes in exchange for reduced sentences’.Footnote ⁷² The report’s language implies that how the OTP evaluates whether proceedings are genuine will involve analysing information about the specific crimes allegedly committed by each accused, so as to understand the operational behaviour of the leadership of each group. It also suggests that sentencing will inform its evaluation of genuineness. The report reiterated that Colombian trials should prioritise those most responsible, and stated that ‘information and evidence concerning the origins, promotion, consolidation and expansion of paramilitary groups is spread out among courts and prosecutors in a way that may hamper the proper contextualisation of the crimes committed and a comprehensive understanding of the complexity of the phenomenon’.Footnote ⁷³ This suggests that describing the context of the conflict is important to the ICC and that there exists a ‘proper’ way to do this, including by altering the local jurisdiction of the cases.

In addition to asserting oversight over the domestic process through public reports, the OTP has attempted to engage directly with actors in the domestic judiciary. In late 2013, Prosecutor Bensouda sent two letters to the Colombian Constitutional Court about the Legal Framework for Peace. The letters touched on two of the most controversial aspects of the legislation: alternative sentencingFootnote ⁷⁴ and prosecutorial strategy.Footnote ⁷⁵ One letter stated that a complete suspension of incarceration for those most responsible for atrocity crimes – even if they had been tried and convicted – would constitute a violation of international law and of Colombia’s obligations under the Rome Statute.

The prosecutor also carved out specific roles for domestic courts and the ICC, qualifying her prosecutorial discretion to try only those ‘most responsible’ as something unique to the ICC. She clarified to the Colombian courts that, although her office focused on investigating and trying the ‘most responsible’, this should not be interpreted as a precedent that authorises states to follow the same strategy.Footnote ⁷⁶ Rather, the OTP works with a focus on two levels of combating impunity, first by initiating processes against those most responsible for the crimes, and second by promoting domestic processes against those that have ‘lesser responsibility’.Footnote ⁷⁷ These letters appear to contradict the OTP’s previous message to Colombia about focusing its proceedings on those who bear the greatest responsibility for the most serious crimes. Furthermore, while the OTP seeks to foster a kind of legal ‘mimicry’ by promoting its form of international criminal law, it discourages the independent exercise of a domestic prosecutorial strategy. As another example of the OTP’s retributive focus, it requires Colombia to impose at least some term of imprisonment in order to comply with the Rome Statute.

The response to the OTP’s efforts to exert influence was direct: Colombia’s prosecutor general, Eduardo Montealegre, defended the state’s position and challenged Bensouda’s position. Montealegre maintained that the government’s proposed policy adheres to the letter of the law and follows the most recent developments in international law; further, he claimed that international law has adapted itself to transitional justice. He also noted that the OTP’s position followed retributive theories of criminal justice, which he distinguished from Colombia’s transitional justice approach. Under a transitional justice theory, the state can try those ‘most responsible’ and also impose alternative sentences.Footnote ⁷⁸

The message from The Hague thus appears to be mixed: on the one hand it supports the Colombian proceedings and the state’s transitional justice initiatives, but on the other it signals to domestic authorities that the Court should maintain influence over domestic prosecutions. In particular, while stating that it was satisfied with Colombia’s prioritisation of the prosecution of those ‘most responsible’, it continued to emphasise that the investigations needed to dig deeper. The ICC asserts this pressure through a call to broaden Colombia’s conflict narrative – for instance, by highlighting connections between the state and paramilitaries that have historically been overlooked in the conflict. The Court also wants trials to focus on crimes against women and girls, including rape and forms of sexual violence, which it views as a gap in the conflict narrative as revealed through domestic charging practices.Footnote ⁷⁹

Expressivism, victims and the notion of ‘truth’

While the ICC’s approach has focused on punitive aspects of justice, the Colombian government’s use of international justice discourse can be read through the optic of what some scholars have termed legal ‘expressivism’; namely, that laws reflect and endorse certain values or messages.Footnote ⁸⁰ Expressivist approaches to criminal law focus on trials and punishment as a vehicle to strengthen respect for the rule of law.Footnote ⁸¹ In this light, it is evident that the Colombian state has sought to craft a historical narrative through a transitional justice legal framework: the government has sought to authenticate its depiction of the conflict through a victim-centred discourse focusing on the value of the ‘truth’. The state has also embarked upon a pedagogical dissemination of international justice norms through public statements and by constitutionalising these norms within its domestic legal framework.

The Colombian government’s narrative position, then, emphasises the recognition of crimes and discovery of the truth over trying individual cases. Some politicians have argued that the truth can serve as a form of justice.Footnote ⁸² To be sure, there are multiple versions of the ‘truth’ of the conflict, and this is especially the case with regard to judicial truth. The fact that there are multiple versions of a conflict is not itself inherently problematic; however, there is a risk in Colombia that the state’s ‘official’ narrative will reproduce structural inequalities and maintain historical silences around certain conflict-affected communities and individuals. Some have argued that conflict narratives that fail to adequately recognise victims of violence can detract from peace efforts and contribute to continued injustice.Footnote ⁸³

As previously noted, Colombia has a long legalist tradition and a history of using legal frameworks in response to conflict. One thing that has changed significantly is the role of victims in the Colombian legal vernacular. Previously, it was only either the government or the leaders of illegal armed groups that featured in the conflict.Footnote ⁸⁴ The emergence of the figure of the victim has changed the conflict discourse and, for the first time, victims may feature more prominently as agents in its development.Footnote ⁸⁵ Indeed, until recently, victim organisations have voluntarily excluded themselves from the transitional justice initiatives, because ‘they doubted that conditions would allow for public clarification and recognition of the crimes committed’.Footnote ⁸⁶

Victims have also become more prominent in Colombia’s transitional justice legislation. International and domestic pressure in favour of victim’s rights has influenced the balance between amnesties and criminal justice in Colombia’s legal response to the conflict, beginning with the debate over the JPL.Footnote ⁸⁷ The JPL included ‘victim’ as a legal subject for the first time in Colombian law.Footnote ⁸⁸ Critics of the JPL and its implementation were then able to push for the passage of the Victim’s Law, which in turn created the National Commission of Reparation and Reconciliation as well as the Historical Memory Group. More recently, victims have appeared on the agenda of peace talks between the FARC and the government.

However, the invocation of the victim has also served as a platform for Colombia to defend its position and strategy. This victim-centred rhetoric is historically unprecedented. In 2010, Colombia’s President Santos addressed the Ninth Session of the ICC’s Assembly of States Parties (ASP). He discussed the success of the JPL and how it had enabled cases against government officials, as well as the prosecution of a military official. He contended that the victims were at the ‘centre’ of Colombia’s efforts, but noted the cost of implementing the Victims Law.Footnote ⁸⁹ In a speech before the UN General Assembly in 2013, Santos asked the international community to respect Colombia’s right to pursue peace and claimed there was no way it could investigate all of the crimes committed during the conflict. Santos asserted that victims are the priority: ‘If we understand justice and the fight against impunity – in a transition – as a set of measures aimed at satisfying the victims and not just as the administration of criminal processes, it is possible to find a comprehensive solution for all.’Footnote ⁹⁰ UN Resident and Humanitarian Coordinator in Colombia, Fabrizio Hochschild, stated that it was the first time he remembers a president beginning a speech before the United Nations that focused on victims.Footnote ⁹¹

The vernacularisation of international justice norms in Colombia has thus translated ‘justice’ as victim-oriented and as something broader than the administration of criminal processes. By focusing on the rights of victims, the government emphasises the expressive value of atrocity crimes trials and the importance of establishing the ‘truth’ about the conflict. However, the government avoids speaking of the direct responsibility of the state for crimes committed against those victims.Footnote ⁹² In addition, although Colombia’s vernacularisation of international criminal justice places great emphasis on victims, they remain relatively absent from legal practice. The development of the narrative thus continues to be top-down, negotiated by those in power who have been the architects of the conflict.

Colombia’s focus on the expressive value of trials and, in particular, on the role of the victim is to the government’s advantage. This focus might arise out of the complicated national context, and the fact that the conflict is ongoing; a focus on retribution can complicate peace negotiations. As the government and the FARC work through a delicate negotiation process, this is an important factor. In addition to providing an alternate understanding of justice that may conflict with or contest the normative values of the ICC, the expressive value of trials in Colombia may also help reinforce the rule of law internally. This is important where large swathes of the country still have little government presence, and where people have turned away from formal legal structures in dispute settlement.Footnote ⁹³ It also sends a message of the central role of the government to areas of the country that were previously controlled by the FARC, ELN or paramilitaries.

However, there are risks associated with a focus on the expressive value of trials – especially when undertaken to protect state power. Judicial trials do not necessarily provide an adequate site of narrative development. Many have argued that law is poorly suited to writing history.Footnote ⁹⁴ As Clifford Geertz famously noted, ‘whatever the law is after, it is not the whole story’.Footnote ⁹⁵ This is even more salient when the focus of investigations is narrowed.

The trials and hearings conducted under Colombia’s international justice framework could thus lead to skewed or partial versions of the conflict.Footnote ⁹⁶ Selective trials – reflected in Colombia’s new prosecutorial strategy of focusing on those ‘most responsible’ – can lead to selective truths. Criminal trials are dominated by complex rules of procedure and evidence. Such rules can bolster the seeming ‘authenticity’ of the narrative, but they can also detract from it.

Trial management strategies, like the ones implemented in Colombia in efforts to streamline and reduce trial time, can also ‘flatten’ narratives. Interrupted performances are another risk: trials that end abruptly because an accused is no longer ‘available’ create partial narratives. This is especially true for processes that focus on a few select individuals, and where there is a risk that high-level perpetrators could be extradited to the United States on drug charges. Indeed, there is a real possibility that the Colombian government might act on other extradition requests for several high-level FARC members, including those participating in peace negotiations.

Another risk of the Colombian process is the fact that, while parties to the conflict have negotiated the international justice framework, victims and other constituencies of Colombian civil society have been largely absent from these negotiations. In some ways, this version of the truth might pose an obstacle to peace, as it arises out of a bargain between historically empowered actors and marginalises the grievances and roles of the un-empowered. The narrative that these trials produce may be incomplete or may reduce or eliminate uncomfortable facts. These risks might ultimately detract from the overall expressive value of the trials in addition to minimising their potential benefit. As Drumbl argues, ‘flattening the narratives to protect power drains some of their transformative content’.Footnote ⁹⁷ Flattening or transforming the conflict narrative is, I argue, a key aspect of the Colombian state’s approach in its domestic uptake of the ICC’s normative framework.

Conclusion

This chapter has explored how the Colombian government is using a vernacularised discourse of international justice to assert control over how the country’s conflict is portrayed. The government’s actions mirror a number of larger socio-legal effects, including externalised contestations over Colombian sovereignty and internalised contests over the other parties to the conflict. By controlling the forms of narration, there is a risk that the government’s narrative will embed understandings of justice that are incommensurate with the lived experience of many sectors of society, thereby exacerbating existing societal exclusions and reinforcing powerful networks.

Tensions concerning how the conflict is presented reflect broader tensions over competing conceptions of sovereignty. The Colombian approach to transitional justice entails signalling to the ICC and other global actors that it retains its sovereignty and political supremacy. This is apparent through Colombia’s statements before the United Nations and the ASP. Yet, internally, Colombia presents a complicated picture of rivalries and struggles for power. Although this chapter has focused on the Colombian government, there are other micro-contestations and active participants, including a vibrant victims’ movement, and contestations between the executive and the judiciary. There has also been a striking difference of approach and rhetoric between the Santos government and its predecessor, with the current administration taking advantage of an opportunity to develop an authoritative conflict narrative. The government is also asserting its powers over other parties to the conflict and the political opposition. As discussed above, this includes a victim-centred rhetoric and a focus on expressivism over retribution. This approach further enables the government to solidify its position as ‘victor’, even in the case of a negotiated end to the conflict.

However, in application of the law, victims appear to have a more marginal role than the government’s discourse would imply. For example, the JPL gave a central voice to perpetrators, that is, paramilitary leaders who confessed to their crimes. In practice, this process has been criticised for not facilitating broad victim participation and for limiting the voices of victims. Although the JPL did give rise to the Historical Memory Group, which has investigated massacres and crimes, this ‘voice’ is distinct from what victims might have in the judicial context. It also reflects a historical lack of access to justice for those with little political capital. Thus, although the ICC’s relationship with Colombia has led to victims playing a more central role in the conflict narrative and the development of victim-centred legislation, a closer look suggests that they have remained on the sidelines, as subjects of the state’s political and judicial control. This, ultimately, could undermine the authority that the state struggles to maintain.Footnote ⁹⁸

Beyond the shadow of the ICC and its normative discourse, Colombian society faces broader challenges in resolving what has proven to be an intractable conflict. The Court’s involvement in Colombia has had far-reaching effects that have extended beyond what legal tests and normative impositions could adequately address. Rather, the ICC has become an active participant in contestations surrounding the Colombian conflict narrative. The interaction between the Court and the Colombian government has given rise to a broader discursive struggle over the terms through which political power is exercised.

Introduction

Prior to the Arab Spring, there were few signs or predictions that the Arab world would attract the attention of the International Criminal Court (ICC). The events that unfolded and the effects of the Court on developments in conflict and post-conflict Libya speak to the tension between the vision of an apolitical pursuit for accountability and the deeply political work of the Court in practice. This chapter critically examines the effects of the ICC on the conflict in Libya and on the pursuit of international criminal accountability since the beginning of the Arab Spring in February 2011. It considers both the impact of the ICC on conflict and post-conflict Libya as well as the impact of the Court’s intervention on the institution itself, and suggests that this reciprocal relationship epitomises the politics of international criminal justice. The central argument of the chapter builds upon a growing body of scholarship that recognises the role of political interests on international criminal justice and on the work of the ICC in particular.Footnote ¹ The Court’s effects in Libya have ultimately been determined not by the ICC itself but rather by political actors and the political contexts in which it operates.

The chapter first contextualises the Court’s intervention in Libya, followed by an examination of the politics of the UN Security Council’s referral to the ICC. In the third section, the chapter focuses on the so-called peace versus justice debate as it pertains to Libya. The effects of the ICC’s intervention on efforts to establish and negotiate peace and stability in Libya are assessed. The fourth section discusses the political instrumentalisation of the ICC’s work by the ‘international community’ and intervening North Atlantic Treaty Organization (NATO) forces. Part five offers an assessment of the sharply dichotomous debate over where to try Saif Al-Islam Gaddafi and Abdullah Al-Senussi, the two surviving members of the Gaddafi regime against whom arrest warrants were issued. This leads to an analysis of the politics and law of Libya’s admissibility challenges at the ICC. The chapter concludes by offering some reflections of the Court’s role and its impact on conflict and post-conflict Libya.

The ICC’s Libya intervention in context

Few could have foreseen that Libya would be the target of an ICC investigation, that arrest warrants would be issued against its head of state, Muammar Gaddafi; his heir apparent, Saif Al-Islam Gaddafi; and his head of intelligence, Abdullah Al-Senussi – let alone that it would be the locus of a NATO military intervention drawing upon the doctrine of the ‘Responsibility to Protect’.Footnote ² As Alex Bellamy points out, no crisis or conflict-monitoring group had Libya on its ‘at risk’ lists.Footnote ³ On the contrary, just months before Gaddafi’s crackdown on protesters, a number of states had praised Libya’s human rights record during the country’s Universal Periodic Review, while Foreign Policy’s 2010 Failed States Index ranked Libya ahead of India, Turkey, Russia and Mexico – none of which would generally be considered candidates for foreign military intervention.Footnote ⁴

In 2011, however, fissures in the four-decade-long rule of Muammar Gaddafi began to appear. Emboldened by events in neighbouring ‘Arab Spring’ states in the early months of the year, protesters, primarily in the eastern part of the country, took to the streets to voice ongoing socio-economic concerns and demand reform. In response, the regime moved to crush what until then were largely peaceful demonstrations. Protests escalated in the eastern capital of Benghazi and quickly transformed into a full-scale rebellion, seeking the overthrow of the Gaddafi government. Increasingly fervent, organised and armed groups began clashing with the regime’s feared security forces. The opposition also set up the National Transitional Council (NTC) to manage political objectives and present a political face to the people of Libya and the international community. As violence escalated, a consensus began to emerge among states at the UN Security Council and beyond: in order to prevent Gaddafi from indiscriminately slaughtering any challengers to his regime, concerted international action was needed.Footnote ⁵

The situation in Libya was remarkable for the pace with which seemingly peaceful protests deteriorated into mass violence as well as the extent of the threat to civilian lives posed by the Gaddafi regime.Footnote ⁶ Equally significant was the speed with which states reacted and responded by turning towards the ICC. Amongst others, the Organization of the Islamic Conference, the Arab League and the African Union called on the international community to become involved. The UN’s High Commissioner for Human Rights likewise added her support for an investigation of what she declared were crimes against humanity being committed by Gaddafi forces.Footnote ⁷ If detractors of international intervention had reservations, Libya’s deputy permanent representative to the United Nations, Ibrahim Dabbashi, encouraged them to take action. On 21 February 2011 he declared:

Emboldened, if not pressured, by support from key regional and international organisations and leaders, on 26 February 2011 the UN Security Council passed Resolution 1970, a package of sanctions aimed at pressuring the Gaddafi regime to desist in its violent crackdown on civilians in Libya.Footnote ⁹ Amongst its measures was the Security Council’s second-ever referral of a situation to the ICC.

The referral was roundly praised. Human rights groups highlighted, in particular, that it had been passed with unprecedented speed and was authorised unanimously by all members of the Council.Footnote ¹⁰ For advocates and proponents of the Court, Resolution 1970 contained many important advances for the ICC and for the project of international criminal justice. A number of countries who are not ICC member states and which had, to varying degrees, opposed the ICC all voted in favour of the resolution.Footnote ¹¹ Despite these ‘triumphs’, however, it would be dangerous to overstate international support for the referral or the extent to which it was a ‘victory’ for international criminal justice. Indeed, the litany of celebratory statements obscured the deeply political and politically controversial contours of the referral.

Mixing justice and politics: Security Council Resolution 1970

Despite the violence of Libyan state forces, it was not clear that the Security Council would seek the ICC’s intervention. A number of states on the Council were ambivalent about the prospect of the Court’s involvement. However, when the Arab League issued a statement condemning the Gaddafi regime, the balance appeared to tip: a strong resolution and referral to the ICC became a political possibility. Still, even with the unanimous referral, statements by Security Council members revealed their anxiety. Following the passing of Resolution 1970, both the Chinese ambassador and his Russian counterpart avoided any mention of the ICC in explaining their decisions to support the resolution. Moreover, neither directly criticised Gaddafi or his government. China claimed that it was only because of ‘special circumstances’ that the resolution was passed while Russia took the opportunity to highlight that it ‘opposed counterproductive interventions’.Footnote ¹² Meanwhile, the Indian ambassador suggested that India would have ‘preferred a “calibrated approach” to the issue’, suggesting that the state had its concerns as well.Footnote ¹³

Nevertheless, an agreement was brokered. One consequence of the referral was to expose issues in the relationship between the Security Council and the Court and, in particular, the proximity of the Council member states’ political interests with the supposed apolitical justice served by the Court. A key issue of contention for drafters of the ICC’s Rome Statute had been the role of the Security Council in the Court’s mandate.Footnote ¹⁴ Proponents of the ICC were determined to avoid giving the Council too much influence over the functioning of the Court for fear it would result in politicisation of its work and would place international criminal justice at the whim of the Council’s five permanent members.Footnote ¹⁵ In Libya, however, this fear appeared to largely evaporate.

Yet the high politics of Resolution 1970 made the referral a matter of the political prerogatives of the Security Council’s members as much as one of international criminal accountability. Three aspects of the resolution highlight the politicisation of the ICC’s mandate: the exclusion of non-state parties from the jurisdiction of the Court, the inclusion of a reference to Article 16 of the Rome Statute and the temporal limitations imposed on the ICC’s jurisdiction. Each will be considered in turn.

Similar to Resolution 1593 (2005), which referred the situation in Darfur to the ICC, Resolution 1970 precludes the ICC from investigating or prosecuting citizens of states that are not members of the Court. Operative paragraph 6 of the Resolution 1970 reads:

The exclusion of non-states parties in Resolution 1970 exposes a paradox in the treatment of the ICC by powerful states. This is particularly true of the United States, which insisted on the exclusion of non-states parties as a pre-condition for supporting the referral.Footnote ¹⁷ Commentators have noted the paradox of having ‘the United States putting forward a resolution to the Security Council in support of a referral to a court from which it had insisted its military personnel and political elite were immune’.Footnote ¹⁸ Moreover, the exclusion of non-states parties undermines a key goal of the Court: the achievement of universal jurisdiction. Brazil was the only ICC state party to openly express its reservations with expanding the Court’s jurisdiction through the referral.Footnote ¹⁹

The legality of excluding non-states parties from the ICC’s jurisdiction is also highly questionable. In the context of the Security Council’s referral of Sudan, Robert Cryer argued that the exclusion of non-states parties was legally dubious. Cryer’s critique is equally applicable to Resolution 1970. As he argues, ‘the exclusion of some states’ nationals fails to respect the Prosecutor’s independence and makes it difficult to reconcile the resolution with the principle of equality before the law. Some states’ nationals, it would appear, are more equal than others.’Footnote ²⁰ In short, the political tailoring of the referral to exclude non-states parties from the ICC’s jurisdiction both undermines the Court’s stated aim to achieve universal justice and suggests a hierarchy wherein similar crimes within the same context will not be similarly investigated and prosecuted.

A second controversial feature of the referral was the inclusion of a preambular reference ‘recalling article 16 of the Rome Statute under which no investigation or prosecution may be commenced or proceeded with by the International Criminal Court for a period of 12 months after a Security Council request to that effect’. Article 16 of the Rome Statute can be invoked by the Council to suspend an investigation or prosecution by the Court for up to twelve months, renewable yearly, if either is deemed to pose a threat to international peace and security. The reference to Article 16 was almost certainly included in order to assuage the concerns of states that the ICC could complicate attempts to negotiate a political settlement to the conflict.Footnote ²¹ In this context, the prospect of an Article 16 deferral can be seen as a concession to efforts to negotiate peace.

On the surface, the inclusion of Article 16 may be unproblematic. After all, it is part of the Rome Statute and it had previously been included in Resolution 1593 (2005). However, many international criminal justice scholars had expected – and perhaps hoped – that Article 16 would never become relevant in practice.Footnote ²² The invocation of Article 16 would undoubtedly run contrary (at least temporarily) to attempts to end impunity and is certainly an uncomfortable proposition for those who fear manipulation of the ICC’s work by the Security Council. The concern and controversy of the reference in the referral, then, lies both in the possibility that it would set a precedent for subsequent referrals and that it may indicate that states consider Article 16 a viable option where political prerogatives would trump the aims of justice and accountability.

The third notable element of Resolution 1970 is the restriction placed on the temporal jurisdiction of the ICC. Article 11 of the Rome Statute provides the ICC with jurisdiction for crimes allegedly perpetrated after 1 July 2002, the date the Court came into existence.Footnote ²³ Operative Paragraph 4 of the Security Council’s resolution, however, reads that it: ‘Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court.’Footnote ²⁴ To date there has been no official explanation by states or by the United Nations as to why the ICC’s jurisdiction was restricted to events post-February 15. The Court has also remained silent on the subject. But it is clear that Security Council members negotiated this temporal limitation on the Court’s jurisdiction.

It would appear that the restriction to events after 15 February 2011 was included in order to shield key Western states from having their affairs and relations with Libya come under judicial scrutiny. In the years preceding the intervention, many of the same Western states that ultimately intervened in Libya and helped overturn the regime had maintained close economic, political and intelligence connections with the Libyan government. These connections helped legitimise and sustain Gaddafi’s regime.Footnote ²⁵ During the NATO intervention itself, the head rebel commander in Tripoli, Abdel Hakim Belhadj, declared that he was seeking to sue the British and American governments for their complicity in his extraordinary rendition and torture.Footnote ²⁶ Meanwhile, the disruption stemming from the conflict resulted in abandoned political offices flush with confidential government files. In September, documents found by officials from Human Rights Watch in the office of Gaddafi’s defected foreign minister, Moussa Koussa, detailed American and UK engagement with Libyan intelligence and anti-terrorism practices, including the extraordinary rendition of individuals to be interrogated and tortured.Footnote ²⁷ In short, there is ample evidence to suggest that the ICC’s temporal jurisdiction was curtailed to prevent investigators from shedding light on damaging relations between the Gaddafi regime and the same states that engineered its collapse.

Peace versus, or with, justice in Libya?

Just two weeks after the Security Council’s referral, ICC prosecutor Luis Moreno-Ocampo opened an investigation into alleged crimes committed in Libya. On 16 May 2011 he requested that the Court issue the three arrest warrants; two months later, the Pre-Trial Chamber approved warrants against all three. This represented a remarkable turnaround from the time of the referral to the issuance of warrants, especially in comparison to previous ICC interventions. In Darfur, the Court took two years to move from accepting the Security Council’s referral to issuing arrest warrants. Not unlike other contexts in which the ICC has intervened, a debate ensued as to the effects of the ICC’s involvement on developments during the Libyan conflict, most notably on efforts to transition the country from conflict to peace.Footnote ²⁸ This is often referred to as the ‘peace versus justice’ debate.Footnote ²⁹

Numerous commentators claimed that the ICC’s involvement would make a transition to peace in Libya less likely. It was proclaimed that the ICC’s intervention would give Gaddafi an incentive to ‘fight to the death and take a lot of people down with him’,Footnote ³⁰ that the ICC ‘may have perpetuated, rather than ended, [Gaddafi’s] crimes’,Footnote ³¹ and that Libya was mired ‘in a civil war in large part because of Gaddafi’s international prosecution’.Footnote ³² Concerns that the ICC would obstruct a resolution to the conflict only increased later, when it appeared increasingly likely that the conflict would become a long, protracted civil war, and that the ICC would reinforce a military and political stalemate. There were two primary options of conflict resolution highlighted by observers during the conflict that could have been pursued by the ICC’s intervention: the negotiation of a peace agreement between Gaddafi and the rebels, or the removal of Gaddafi by negotiating his exile or asylum. This section explores the possible effects of the ICC on both options. The analysis offered suggests that political actors and dynamics ultimately precluded any non-military solution to the war.

Instrumentalisation of the ICC in Libya

In the wake of the unanimous vote to refer the situation in Libya to the ICC, Western states voiced their support for the Court and its role in the crisis. In a joint letter, UK prime minister David Cameron, French president Nicolas Sarkozy and US president Barack Obama expressed their confidence in the ICC’s work, declaring that the Court ‘is rightly investigating the crimes committed against civilians and the grievous violations of international law’.Footnote ³⁹ In early May 2011, the US ambassador to the United Nations reaffirmed support for the ICC, stating that the administration ‘welcome[d] the swift and thorough work the Prosecutor has done … The specter of ICC prosecution is serious and imminent and should again warn those around Qadhafi about the perils of continuing to tie their fate to his.’Footnote ⁴⁰ As the organisation leading the military intervention, NATO also similarly supported the work of the ICC.Footnote ⁴¹

These statements made clear that the ICC’s intervention was, in the eyes of intervening powers, singularly about targeting Gaddafi and his regime. Additionally, this language was critical in framing the intervention in Libya as one that was fundamentally about justice.Footnote ⁴² Yet this lofty rhetoric obscured the fact that Western intervening forces were instrumentalising the ICC for political purposes such that, when it became a potential obstacle to shifting political goals, the Court’s role in trying Gaddafi was largely abandoned. Indeed, attempts by intervening forces to push Gaddafi into exile as a tactic of conflict resolution ran contrary to the ICC’s involvement insofar as they posed additional (and intentional) barriers to enforcing the Court’s arrest warrants. Thus, there appears to have been significant double-speak by the intervening powers. They invoked and supported the ICC while exploring possible states for Gaddafi to permanently or temporarily evade prosecution.

As the conflict continued and it became clear that Gaddafi would not leave Libya, Western states increasingly accepted the possibility of the Libyan leader remaining in country. In response, Human Rights Watch argued that Security Council members ‘should be reaffirming the message that impunity is no longer an option, instead of proffering a get out of jail free card to end a military stalemate’.Footnote ⁴³ The ICC’s Office of the Prosecutor (OTP) also voiced concern, maintaining that Gaddafi could not remain in Libya.Footnote ⁴⁴ But these remarks coincided with an important shift in the rhetoric of Western states. When faced with questions about Gaddafi’s fate, officials increasingly suggested that what happened to him was not a matter of international criminal law but ‘up to the Libyan people’. Gaddafi’s future was thus re-branded as a question of respect for the sovereign wishes of the Libyan people. Asked in late August 2011 where the ‘Tripoli Three’ should be tried, the US ambassador declared:

This shift in rhetoric also coincided with changes in the nature of the conflict. As noted above, during the summer of 2011, the stalemate between the rebels and pro-Gaddafi forces began to falter. By late August, Tripoli fell and the same NATO states that had intervened to support the opposition began to position themselves to benefit from the presumed economic windfall that an NTC-controlled Libya would enable.Footnote ⁴⁶

In this context, the calculus of Western states reverted from backing international criminal justice to other political interests in a post-Gaddafi Libya. The utility of the ICC – to frame the intervention in the name of justice and to marginalise and pressure Gaddafi – had been exhausted. In the context of building strong relations with a post-Gaddafi Libya, the shift towards employing language of ownership – that ‘it was up to Libyans’ – was politically cunning. To argue against it would patronise Libyans, deny them a right to establish their own accountability mechanisms and potentially undermine the intervening powers’ future economic and political role. Similarly, there was little incentive for the international community to insist that Gaddafi’s death was a missed opportunity for accountability.Footnote ⁴⁷

The lack of commitment amongst intervening states to the obligations spelled out both in Resolution 1970 and in the Rome Statute was also made evident through two additional developments: the surrender of Al-Senussi to Libya from Mauritania and the visit by Sudanese president Omar al-Bashir. In March 2012 it was confirmed that Al-Senussi had been arrested in a joint operation of French and Mauritanian officials in Nouakchott, Mauritania.Footnote ⁴⁸ Immediately following his arrest, Al-Senussi’s fate emerged as the centrepiece in an extradition dispute between Libya, France and the ICC. France had long sought custody of Al-Senussi for his role in the 1989 bombing of UTA Flight 772 in which 170 passengers, including 54 French citizens, had perished.Footnote ⁴⁹ The French government maintained that its role in capturing him gave it a privileged position in requesting his surrender to France.Footnote ⁵⁰ There is no evidence that France pushed for Al-Senussi’s surrender to the ICC, despite the fact that it is a member state. The ICC was effectively cut out of the picture.Footnote ⁵¹

In January 2012, Sudanese president Omar al-Bashir visited Tripoli. Bashir remains wanted by the ICC, yet he had also provided significant material support to the rebels during their fight against Gaddafi, whose removal Bashir called the ‘best piece of news in Sudan’s modern history’.Footnote ⁵² Predictably, no Western state admonished Bashir’s visit. Only the United States stated (two days after the visit) that it had brought the issue up with the NTC and disagreed with Bashir’s visit, but that ‘[t]his is the first time as a free government [the NTC] have had to encounter these issues’.Footnote ⁵³ ICC member states, including France and the United Kingdom, remained silent, suggesting that their priorities, too, had shifted.

The possible effects and contributions of the ICC during the Libyan Revolution were ultimately shaped and even determined by the political prerogatives and interests of the Security Council and NATO powers. Commitment to the ICC’s mandate was heeded only insofar as it advanced the political aims of the intervening powers, namely the marginalisation of Gaddafi. Once the Court stopped serving these interests, its work was of limited value. The relationship between the ICC and those who invoked it was thus not one of legal obligation, but rather political convenience.

The ICC, Libya and ‘local ownership’

The decision of where to hold post-conflict judicial proceedings has always been politically charged. Gerry Simpson notes that the question and controversy of where to adjudicate international crimes has coloured international criminal justice since its inception. ‘Law’s place’ is complicated by the tension between the internationalisation of criminal justice and the fact that ‘justice is best served at the local level where the crime has taken place, where the evidence is located, and where the witnesses live’.Footnote ⁵⁴ Simpson’s observation points to the fact that the decision of where to serve justice for atrocities is rarely obvious and often rife with political manoeuvring. The case of Libya affirms this point.

Even before Gaddafi’s demise, questions abounded about where the defendants could and should be tried. The debate was largely framed in dichotomous terms: either a trial would be conducted in Libya by Libyans or in The Hague by the ICC. This obscured middle-ground options and left the OTP with little choice but to support Libya’s intentions to try Saif Al-Islam Gaddafi and Abdullah Al-Senussi in Libya.

If a trial in The Hague by ICC judges was ever a real possibility, it was short-lived. There was little-to-no apparent will on the part of the NTC or the international community to arrest any of the ‘Tripoli Three’ and surrender them to the Court. Nevertheless, a legal debate ensued over whether Libya was under an obligation to surrender Gaddafi or Al-Senussi before bringing its admissibility challenge under the Court’s complementarity regime. Human rights groups were adamant that they should be transferred to the ICC.Footnote ⁵⁵ This, in combination with concern that other Gaddafi-era officials would be physically abused and perhaps even tortured and killed if tried in Libya, belied scepticism amongst groups that Libya had the capacity to try key figures of the former regime.Footnote ⁵⁶ It remained clear, however, that Libyan authorities in the NTC had no interest in transferring either defendant to The Hague and that the Security Council had little interest in pressuring them to do so. As Ahmed Jehani, Libya’s representative to the Court, declared: ‘No amount of pressure will push Libya’ to surrender Gaddafi or Senussi.Footnote ⁵⁷

Some observers suggested that a middle ground be pursued: holding an in situ trial in Libya or sequencing prosecutions between Libya and The Hague.Footnote ⁵⁸ An in situ trial would have had numerous advantages: being in closer proximity to the victims, witnesses and evidence; contributing, perhaps, to building of the rule of law in Libya and providing a material legacy; and upholding ‘international standards’ for criminal justice. The latter concern was particularly salient amidst growing concerns that Libyan authorities would apply the death penalty against those convicted of crimes during the conflict.

The Rome Statute envisages the possibility of a travelling Court.Footnote ⁵⁹ Article 3(3) of the Statute notes that proceedings may take place ‘elsewhere, whenever it considers it desirable’ and the idea has been explored by the ICC in other contexts. It further appears that the OTP saw the option of an in situ trial favourably, as the OTP reported that it had offered the option of a trial by ICC judges to the NTC.Footnote ⁶⁰ However, while its reasoning remains unknown, the NTC rejected the possibility of an in situ trial. It became increasingly clear that the new Libyan government wanted local proceedings, with the support of the majority of Libyans and the acquiescence (or lack of interest) of much of the international community.Footnote ⁶¹

The prosecutor also suggested that the ICC and the NTC could sequence prosecutions. Sequencing, envisioned under Article 94 of the Rome Statute, would entail Libya trying Gaddafi and Al-Senussi and subsequently transferring them to the ICC to be tried over the alleged crimes outlined in their indictment (or vice versa).Footnote ⁶² Importantly, a trial at the ICC might have given time for the Libyan government to stabilise and to build an independent judiciary capable of trying Gaddafi and Al-Senussi domestically for crimes other than those charged by the Court. Indeed, sequencing could have ensured that alleged crimes committed before and after 15 February 2011 were investigated and prosecuted by Libya before (or after) Gaddafi and Al-Senussi faced charges relating to their conduct during the uprising.

The role of Western states that had invoked and supported the ICC’s involvement in Libya helped to determine these outcomes. It is a distinct possibility that had these states used their influence to support the Court’s mandate, the ICC would have had more leverage either to gain custody of accused, to negotiate with Libyan authorities to establish an in situ proceeding or at the very least to participate in the process. By the same token, it is important to consider the possibility that the lack of willingness on the part of Libyan authorities for these options was at least partly due to the fact that the Court did very little to communicate or demonstrate its work locally or to establish any kind of local presence during the conflict.Footnote ⁶³ The ICC thus appeared foreign and removed, and Libyans understandably felt reluctant handing over key individuals from the Gaddafi regime to a Court they hardly knew. As the executive director of Lawyers for Justice in Libya noted:

With a minimal presence in the country during the war, the ICC likely hampered the possibility of playing a more proactive role in prosecuting the accused. Combined with insufficient interest from the international community, this difficult situation left the OTP with little choice but to support the NTC’s desire to try the accused in Libya.Footnote ⁶⁵

Libya’s admissibility challenge(s)

On 1 May 2012, Libya officially filed its admissibility challenge at the ICC. Lawyers representing the new regime in Tripoli argued that the case was inadmissible on the grounds that its national judicial system is ‘actively investigating Mr. Gaddafi and Mr. Al-Senussi for their alleged criminal responsibility for multiple acts of murder and persecution, committed pursuant to or in furtherance of State policy, amounting to crimes against humanity’.Footnote ⁶⁶ The resultant legal battle created acrimonious divisions within the ICC and, more specifically, between the OTP and the Office of Public Counsel for the Defence (OPCD).

Despite widespread concerns that holding fair trials may be impossible in Libya, the OTP has sided with Libya’s insistence upon trying Gaddafi and Senussi itself. In Moreno-Ocampo’s words, ‘The standard of the ICC is that it has to be a judicial process that is not organised to shield the suspect … and I respect that it’s important for the cases to be tried in Libya … and I am not competing for the case.’Footnote ⁶⁷ Rather than holding up the orthodox standard of complementarity, whereby a state has to persuade ICC judges that it is actively and genuinely able and willing to prosecute the same individuals for the same crimes, the OTP apparently calculated that it was better to argue that its initial investigation had contributed positively to Libya’s pursuit of justice.Footnote ⁶⁸ There are a number of plausible reasons for this leniency.

First, the OTP’s position can be seen as paying respect to the obvious interest and willingness of Libyans – not just the government – to hold trials themselves. In this context, denying that Libya had any right to investigate or prosecute Gaddafi or Al-Senussi would have been tantamount to declaring that Libya’s interest and efforts were irrelevant. Relatedly, there was a risk of conflating the previous, autocratic regime with the new transitional one.

Other reasons contributed to the OTP’s position towards Libya’s admissibility challenges. It was not a given that the OTP would be able to successfully convict Gaddafi. The Libya Working Group noted in February 2012 that ‘[t]here is speculation that the ICC does not want Saif to be put on trial in The Hague as they do not have a strong case against him’.Footnote ⁶⁹ Timothy William Waters has argued, alternatively, that Moreno-Ocampo’s acquiescence was a pragmatic response aimed at ensuring the cooperation of Libyan authorities so as ‘to have any hope of influencing the process’.Footnote ⁷⁰ The ICC has received limited support from the Security Council as well, which appeared largely uninterested in the pursuit of post-Gaddafi accountability. The international community’s disinterest in pressing for trials at the ICC has acted as a virtual endorsement of Libya’s intent to prosecute both of the accused.

Not long after the civil war concluded, the OTP shifted its focus away from seeking custody of Gaddafi or Al-Senussi towards framing the Court’s role in Libya as contributing to ‘positive complementarity’.Footnote ⁷¹ The prosecutor argued that ‘the ICC is still providing an important service, because we will ensure justice in Libya, whoever will do it’.Footnote ⁷² Moreover, he appeared on numerous occasions with NTC leaders, reaffirming the perception that his office’s role is to support rather than to compete with Libya. This may have also been a pragmatic framing on Moreno-Ocampo’s part. It does not appear that the Court will have much, if any, impact on the prosecution of Gaddafi or Al-Senussi, irrespective of Libya’s admissibility challenges. Claiming a degree of responsibility by couching arguments in terms of positive complementarity may thus have served to avoid the ICC from appearing impotent.

The attitude of the OTP led to tensions within the Court, especially between the OTP and the OPCD, which has insisted that both men be tried in The Hague. In November 2011, the OPCD claimed that the OTP was employing a double standard in its application of complementarity in the context of Libya,Footnote ⁷³ and it later filed a motion with the ICC’s Appeals Chamber to disqualify Moreno-Ocampo due to ‘an objective appearance that the Prosecutor is affiliated with both the political cause and legal positions of the NTC government’.Footnote ⁷⁴ The application was ultimately dismissed but not before judges admonished the prosecutor, declaring that his ‘behaviour was clearly inappropriate in light of the presumption of innocence’ and ‘may lead observers to question the integrity of the Court as a whole’.Footnote ⁷⁵

As time passed, it became clear that the key to the admissibility challenges was whether Libya could demonstrate that it had custody of the accused. With Al-Senussi in the custody of the Libyan government and Tripoli having begun proceedings against the former intelligence chief, the judges in Pre-Trial Chamber I ruled that the case against him was inadmissible before the ICC.Footnote ⁷⁶ Ultimately, the chamber found that ‘the same case against Mr. Al-Senussi that is before the Court is currently subject to domestic proceedings being conducted by the competent authorities of Libya – which has jurisdiction over the case – and that Libya is not unwilling or unable genuinely to carry out its proceedings in relation to the case’.Footnote ⁷⁷ In response, one of Libya’s legal representatives declared that the ruling ‘vindicates the efforts [the Libyan government] has made to give effect to the principle of complementarity, which allows Libya to conduct the trial of Mr. Senussi if it satisfies the court, as it has done, that it can conduct a fair trial’.Footnote ⁷⁸

By contrast, because Gaddafi is not in the custody of the national authorities, Libya has had a more difficult time convincing the Court that he too should be prosecuted there. The government sought to publicly demonstrate its preparations to try Gaddafi: it unveiled a refurbished courtroom in Tripoli and a personal prison for him. However, despite numerous announcements suggesting that Gaddafi would be transferred from Zintan to Tripoli, the government has been unable to gain custody of him. In line with Article 17(3) of the Rome Statute, the OPCD put this argument forward in claiming that Libya’s admissibility challenge should be rejected.Footnote ⁷⁹

Ultimately, the Libyan government’s failure to gain custody of Gaddafi meant that the OPCD ‘won’ the admissibility challenge. In May 2013, ICC judges ruled that Gaddafi’s case was admissible before the Court because, in part, the state was unable to prosecute him so long as he remained outside the custody of Libyan authorities. It found that the ‘national system cannot yet be applied in full in areas or aspects relevant to the case, being thus “unavailable” within the terms of article 17(3) of the Statute’. As a consequence, the chamber held, ‘Libya is “unable to obtain the accused” and the necessary testimony, and is also “otherwise unable to carry out [the] proceedings” in the case against Mr. Gaddafi in compliance with its national laws’.Footnote ⁸⁰

Libya appealed the judgment, continuing to contend that Gaddafi should be tried domestically. Libya’s justice minister responded that ‘[w]e will give what is needed to convince the ICC that Libya is capable of conducting a fair trial in accordance with international standards’.Footnote ⁸¹ It appears unlikely, however, that Gaddafi will be transferred from Zintan into the custody of central authorities. Fearing for Gaddafi’s security and potentially his life if transferred to Tripoli, the Zintani militia holding him has claimed that it will host his trial. The Zintani brigade has benefitted from leveraging its custody of their prized prisoner. Indeed, Zintani defence minister Osama al-Juwali’s surprise appointment to his post was reportedly linked to Zintan’s continued custody of Gaddafi.Footnote ⁸²

Libya has thus been partially successful in its admissibility challenges. However, the nature of the admissibility hearings was not about where Gaddafi and Al-Senussi would be tried; that question had been answered before the Libyan uprising had even concluded. Emboldened by a mixture of support and silence from the international community, Libya was clear that it would try Gaddafi and Senussi. The admissibility challenges were instead about whether or not the ICC would endorse Libya’s intentions. Furthermore, it remains difficult to see what ultimate effect the ICC will have on criminal accountability in post-Gaddafi Libya: regardless of what the Court has said, it does not appear that Libya would surrender either of the accused to The Hague.

Concluding reflections

This chapter has sought to demonstrate that the effects of the ICC in Libya have been bound, mitigated and, in some instances, determined by the political actors and political context in which the ICC intervened. From its inception, the political considerations and interests of the UN Security Council’s major stakeholders tailored Resolution 1970. The ICC’s intervention at the behest of the Council then left the Court vulnerable to instrumentalisation: after the ICC had served the political goals of NATO states, support for its mandate rapidly dwindled. Once willing to back its role in Libya in order to legitimise the intervention and marginalise the Gaddafi regime, intervening states quickly abandoned the Court. This volte face has left the ICC in a difficult position. Demanding the surrender of individuals knowing that it would never happen, and where there was virtually no political support for such an outcome, risked creating an impression of impotence. The OTP has instead sought to claim a victory for ‘positive complementarity’, but it had little other choice.Footnote ⁸³

The Court’s experience in Libya points to a central tension facing the Court: on the one hand, there is an obvious desire to investigate crimes committed in non-member states. Doing so, however, requires playing by the political rules set by the Security Council. On the other hand, tethering the politics of the Council with the accountability sought by the ICC guarantees that the interests of the most powerful states will mould the scope of the Court’s work. Resolution 1970 ensured that atrocities in Libya would be investigated but guaranteed that this would be done selectively.Footnote ⁸⁴ Libya may thus teach the ICC a harsh lesson: Security Council referrals come at too large a cost to its own legitimacy.

The Court’s ongoing relationship with the Security Council demands greater scrutiny – from scholars as well as from proponents of the ICC. The relationship will continue to shape the potential for the Court to investigate some of the worst human rights violations. Amongst the most pressing is the situation in Syria. However, even if a referral of Syria becomes a possibility, unless there is a greater political commitment to the Court’s mandate from the Council, there is good reason for the ICC to be wary of engaging in yet another highly volatile conflict. Ultimately, the Court’s intervention in Libya has had mixed effects. In a situation as complex as that of the Libyan revolution, civil war and transition, such an outcome is unsurprising. But, as this chapter has argued, the effects of the ICC’s intervention were shaped and determined not only by the Court’s decision-making and behaviour, but also by the constraints imposed upon it, given the broader political context in which it operates.

Introduction

Many accounts of the International Criminal Court (ICC) treat it as an isolated legal institution tasked with adjudicating international crimes. The project of international criminal accountability is taken to be separate from peace processes, entrenching a binary distinction between peace and justice. By contrast, this chapter locates the work of the ICC within the broader context of peace making, as its founding documents had envisioned. The Court’s governing Statute recognises the intrinsic link between international criminal justice and peace. By consenting to this treaty, the Court’s states parties recognised that ‘grave crimes threaten the peace, security and well-being of the world’ and expressed determination ‘to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’.Footnote ¹ To achieve this they agreed ‘that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’Footnote ² and established an institution that would intervene when states cannot or will not exercise that responsibility themselves.

States party to the Statute recognised that this obligation is not limited solely to its signatories. Under international humanitarian law and human rights law, states are required to investigate, prosecute and punish international crimes. This obligation originates in the genocide and torture conventions, in the legacy of Nuremberg, in the notion of ‘crimes against humanity’, in the Geneva Conventions with respect to war crimes and in the jurisprudence of all major human rights tribunals in the last quarter century. After the Nuremberg and Tokyo trials there was an early emphasis on criminal accountability and punishment during a period when the first human rights treaties were also being drafted. The Genocide Convention of 1948 and the four Geneva Conventions of 1949 emphasised the obligation to investigate, prosecute and punish the most severe crimes. Human rights standard-setting in the mid-twentieth century abandoned the emphasis on individual criminal liability in favour of state responsibility. Despite references to the need for universal jurisdiction, for multilateral commissions of inquiry, and for international tribunals, when it came to atrocity crimes the human rights canon seemed to yield to notions of national sovereignty and non-intervention in internal affairs.

The Rome Statute revives the recognition that accountability and punishment are essential to the establishment of lasting peace. Building upon the legacy of the post-World War II tribunals, a novel framework has been developed to enforce individual accountability for perpetrators of mass crimes with the aspiration of deterring future violations and encouraging peaceful solutions to international and internal conflicts. Through placing the work of the ICC in the broader context of peace making, this chapter argues that justice complements efforts at conflict resolution. Ultimately, it contends that international criminal justice should be situated in relation to other post-conflict transitional mechanisms, which should work towards harmonised social and political objectives.

The role of the ‘justice track’

Drawing upon the experience of Darfur, four approaches or ‘tracks’ of conflict resolution form distinct aspects of peace-building processes.Footnote ³ The ‘political track’ involves peace negotiations and mediation. The ‘security track’ emphasises the protection of civilian populations from attack and deploying military units if necessary. The ‘humanitarian track’ works to deliver relief supplies and assistance. Finally, the ‘justice track’ seeks to break the cycle of impunity for crimes already committed and works towards deterring future violations.

The ‘justice track’ forms an essential aspect of the peace-building process. It refers to the investigation, prosecution and punishment of those most responsible for violence and victimisation of civilian populations. Without confronting the crimes of the past, individual victims and communities struggle to obtain closure and move on to a lasting peaceful solution. Some well-meaning advocates of ‘peace’ argue that seeking criminal accountability hampers the peace process. The ICC’s intervention in Uganda has produced a large body of literature arguing for the priority of one value over the other, presuming that peace and justice are dichotomous choices.Footnote ⁴ While it may be true that the demands of justice may complicate peace negotiations, it also creates a more sustainable solution at the end of the process by laying the foundation for a culture of accountability. Negotiations that sacrifice accountability for an immediate peace create obstacles to redress for victims and communities, which is needed to create a fair and lasting resolution to violent tensions.

Justice, understood here as criminal accountability, forms one of the available measures or policies that can lead to conflict resolution, but in almost every case it cannot be the only one. Mediators, conflict resolution specialists, the parties to the conflict and victims and civil society working together will have to come up with a combination of measures most appropriate to the unique circumstances of each conflict. As a conflict evolves through different phases, initiatives in each of the four tracks need to be adapted and combined in a dynamic and anticipatory response to events.

Breaking the cycle of impunity is central to the ‘justice track’ of peace making, as it is necessary to prevent the repetition of violations and to dismantle the structures that enable violence in the first place. Of course, nothing can provide a guarantee against the re-articulation of these structures in the future or the formation of new ones that lead to abuses. This does not mean that prevention is not a proper motive for justice measures. We may not have empirical proof that prosecution of international crimes prevents their recurrence in the future, but we do know that a climate of impunity is an invitation to perpetrators to commit new abuses and perhaps even to escalate existing conflicts.

Criminal prosecution is an essential ingredient of any effort, but it should never be contemplated as the only response. In the early 1990s, some observers interpreted the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) as a token gesture by an international community that could not manage a more robust response to the genocidal campaigns in the Balkans. To the credit of the ICTY, its impartiality and independence – as well as the continuation of atrocities in the region – soon prompted other actions, albeit never enough and never on time. In fact, criminal accountability can serve to prevent future atrocities only if it is seen as one dimension of a larger peace-making objective that needs to be coordinated with effective armed protection of civilian populations, with distribution of humanitarian assistance, and with genuine, comprehensive efforts at resolving conflict. At the same time, actors must ensure that they do not permit the parties to the conflict to condition their consent to any one of these four components upon progress on any other. If each aspect is contingent upon another, the risk of failure increases considerably. All four must be pursued individually, yet in a coordinated fashion and in good faith.

The risks of an uncoordinated approach are substantial. In the Darfur conflict, for example, the Sudanese government played the different processes against each other, often holding hostage the access of humanitarian organisations to conflict zones in retaliation for peacekeeping and justice interventions. The international community acceded to Khartoum’s demands on a number of occasions, possibly prolonging the move towards a peaceful resolution. In Uganda, delivering humanitarian assistance directly into the hands of the Lord’s Resistance Army (LRA) leadership as a means to encourage engagement in the Juba peace talks had the effect of emboldening the LRA leadership to defy the ICC arrest warrants and demand more concessions during negotiations. International actors should be encouraged to support peace efforts, including the provision of incentives to the parties of a conflict. At the very least, those measures should not work at cross-purposes with judicial efforts and should be carefully coordinated to integrate peace with justice.

Acceptance of the ‘justice track’

States made a conscious decision in Rome to connect peace and justice, as is reflected in the Rome Statute preamble. By providing for interaction between the Court and the UN Security Council, the ‘justice track’ has been envisioned as a complement to political, security and humanitarian ‘tracks’ in international peace processes. This vision was put into practice as early as March 2005 with Security Council Resolution 1593 on Darfur, which invoked peace and security concerns as a basis for referring the situation to the ICC.Footnote ⁷ The Rome Statute has created new rules to which actors involved in conflict management must adjust. The new framework and specific provisions – such as Article 27(2), which negates claims for immunity based on a suspect’s official capacity – are already factored into contemporary peace efforts.

Justice through the Rome Statute framework has affected the dynamics of peace making at the United Nations. There are many indications that the ICC has received increasing attention from the United Nations. For example, the UN General Assembly debates and adopts an annual resolution expressing support for the ICC and encouraging participation by member states.Footnote ⁸ Furthermore, states parties to the ICC that are members of the Security Council keep ICC issues on the agenda.Footnote ⁹ Meanwhile, UN Secretary General Ban Ki Moon has stated that ‘[i]nternational criminal justice, a concept based on the premise that the achievement of justice provides a firmer foundation for lasting peace, has become a defining aspect of the work of the organization’.Footnote ¹⁰

In addition to receiving significant expressions of support from the United Nations, the Rome Statute system has enjoyed widespread ratification by states and increasing support from non-state parties. Since 2002, when the Rome Statute entered into force with the ratification of sixty states, more than sixty other states have joined the ICC. Its jurisdiction covers all of Western Europe, all of South America and the majority of African states. Evolution of the role of states that are not parties to the Statute has also been significant. In an address to the Council on Foreign Relations, Luis Moreno-Ocampo, former prosecutor of the ICC, discussed the shadow the ICC throws over all states, even non-state parties. He commented that:

Collaboration between the ICC and individual states as well as regional actors is also an indication of the Court’s growing presence within the broader field of peace making. The ICC’s Office of the Prosecutor (OTP) has worked with African Union (AU) mediators in Kenya, Darfur and Guinea; with the Organization of American States regarding Colombia and Honduras; and with the League of Arab States. All European Union states are states parties, and to date they have consistently insisted on implementation of the Court’s decisions. The ICC and the justice track it elicits have shaped how states and intergovernmental organisations have come to conceptualise peace making. The following section illustrates some concrete examples of the Court’s effects upon the geopolitics of peace making.

Implementing the ‘justice track’

Evaluating the impact of justice on peace and stability

Implementing justice measures does not guarantee that the desired outcome will be achieved. This is true of all peace measures. The importance of justice does not stem from thinking of it as an instrument for the pursuit of social goods (such as stability, peace and legitimacy), but rather from the idea that benefits to conflict-affected communities and building the rule of law are ends in themselves.

Such claims about the worth of international justice efforts are difficult to demonstrate empirically. This may especially be the case with demonstrating deterrence – namely, that further violence has been prevented through judicial interventions – and with demonstrating that alleged perpetrators have been marginalised. The following sections address these two aims of international criminal accountability. Drawing upon specific examples from the experience of the ICC, they show how justice can be used to promote peace and stability through preventing further conflict and marginalising alleged perpetrators.

Conclusion

At the international level, the ICC serves as the sole permanent institution where international crimes are adjudicated. Its contribution to peace building is tied to the deterrent and marginalising effects of its capacity to prosecute crimes and, by extension, to contribute to international security. As the Court’s current prosecutor maintained, ‘Since the International Criminal Court became operational in 2002, we have witnessed an unprecedented integration between peace and security and international justice.’Footnote ²⁷ The Court’s impact in deterring violence will emanate from the certainty of application of its law. Commentators have observed that ‘trials deter future human rights violations by increasing the perception of the possibility of costs of repression for individual state officials’.Footnote ²⁸ The impression that they will be held to account for their acts will compromise the calculus of leaders seeking to use violence to gain or retain power.

Defining the conflict as a dilemma of peace versus justice, some commentators have argued that by pressing for justice, the rational calculus of any violent regime is to hold on to power so as to avoid prosecution. However, the ultimate goal is not just the immediate end to hostilities, but the establishment of lasting peace. Certainty that law will be applied is therefore a key means of contributing to this goal. The calculus of a regime changes when, because of the pressures of international justice, it becomes isolated and has less power or credibility in negotiations. As was seen with the resolution of conflicts in Sierra Leone and the former Yugoslavia, international justice mechanisms can contribute to the peace process by marginalising offenders from other actors who can be brought into the process.

For justice to have an impact, it must be able to preserve the integrity of its objectives. Prosecutor Bensouda has maintained that the ICC’s work must remain independent of other interests, yet in working towards its objective of criminal accountability, it still contributes to peace and security:

As the prosecutor claims, justice contributes to conflict prevention when it is pursued for its own sake. If the ICC is contemplated simply as a lever, however, it will be undermined, as some will expect it to be turned on and off as political circumstances dictate. Justice contributes to peace precisely by concentrating on its own specific role for the benefit of victims and for the contribution that it makes to the long-term stabilising effects of the rule of law.

The ‘justice track’ thus complements political, humanitarian and security objectives, and it is a necessary dimension of post-conflict peace building. Persuasive scholarship has argued that creating cultures of accountability is instrumental in establishing the basis for peaceful societies.Footnote ³⁰ Although the precise relationship between cause and effect may not be fully understood, the examples taken up through this chapter illustrate how justice encourages the prevention of further conflict and the marginalisation of alleged perpetrators by disarticulating structures of violence. In considering the ICC as an element of the ‘justice track’, it should not be regarded as an isolated legal institution but rather as part of a dynamic and multi-tracked peace-making process.