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Antonio Franceschet on the International Criminal Court

April 27, 2012

Luis Moreno Ocampo, chief prosecutor of the ICC (second from left).
CREDIT: Estonian Foreign Ministry

JOHN TESSITORE: Hello, and welcome to another in our series of interviews with leading members of the academic community, sponsored by the Carnegie Council for Ethics in International Affairs.

I'm John Tessitore, executive editor of the Carnegie Council and editor of the Council's quarterly journal, Ethics & International Affairs, which is now in its 26th year and is published by Cambridge University Press.

With me today is Professor Antonio Franceschet, whose most recent article, titled "The International Criminal Court's Provisional Authority to Coerce," appears in the Spring 2012 issue of Ethics & International Affairs as part of a special "Roundtable on the Political Ethics of the International Criminal Court."

Professor Franceschet was the organizer of the roundtable, which also featured contributions from Kenneth Rodman, Benjamin Schiff, and Michael Struett.

Welcome, Antonio. Good to have you with us.

ANTONIO FRANCESCHET: I'm very happy to have been invited, John. Thank you.

JOHN TESSITORE: Professor Franceschet teaches political science at the University of Calgary and he is the author of Kant and Liberal Internationalism: Sovereignty, Justice, and Global Reform (2002) as well as articles in the Journal of International Political Theory, Journal of Global Ethics, Global Governance, and of course Ethics & International Affairs.

So let's begin. Antonio, the International Criminal Court [ICC] has experienced a tremendous growth in activity within a short period of time. I think it would be helpful if you would walk us through, please, the basic structure and function of the Court as well as its evolution from the ad hoc tribunals in Yugoslavia and Rwanda, which we know were established in the early 1990s, to the adoption of the Rome Statute in 1998, to the Court's current status today.

ANTONIO FRANCESCHET: Only 20 years ago, international criminal trials were not a real serious option. But if you open the newspapers today, you see that these trials are ubiquitous and they are almost a taken-for-granted routine of international politics.

That's not to say that the convictions are routine. Only yesterday, Charles Taylor was convicted by a special court for Sierra Leone, and he is the first former head of state to be convicted in that way.

JOHN TESSITORE: And we will be pursuing that as we go on today, I'm sure.

ANTONIO FRANCESCHET: I think that the tribunals that you mentioned from the 1990s, the ad hoc tribunals for Yugoslavia and Rwanda, but also the ICC, are crucial to understanding a fairly rapid and dynamic pace of change in international criminal justice.

Both the ad hoc tribunals and the ICC have a same core function, and that is to enforce individual criminal liability through punishment. The ad hoc tribunals in the 1990s really just showed that this could and should be done to enough states, and also a very large and vocal contingent of global civil society, who agitated for a permanent International Criminal Court. Here we are, not that long afterwards, and the ICC has built up a real profile, a real competence.

We mentioned Taylor, but last month the ICC had its first conviction for Thomas Lubanga's role in the Congo civil war, specifically with the recruitment and use of child soldiers. So yes, it has been a rapid evolution, and the ICC is part of that evolution.

About the Court itself and its structure, I like to think of the ICC in terms of three main pillars:

  • The first, the most visible pillar, is the judicial pillar. That is where you have the trials and appeals chambers. Most visibly beside that you have the office of the prosecutor.

  • Less visible, but still very important, is the legislative pillar. That is where the Assembly of State Parties, the states that have ratified and become members of the International Criminal Court, do all kinds of things, like nominating and voting in officials for the Court, like the prosecutor. But also the Assembly of State Parties are the motor of future amendments and changes to international criminal law under the rubric of the ICC. So beyond the initial set of core crimes that are part of the Rome Statute for the ICC—genocide, crimes against humanity, war crimes—the Assembly of State Parties only last year at a review conference added the prospect of aggression being a punishable offense, at least by 2017.

  • Now, perhaps less visible—we don't see it in a more routine way—is the operational pillar of the ICC. Here we are talking about the penal system, so the jail cells where individuals are held when they are pending trial or going on trial and also where they will serve out their sentences if they are convicted.

Something that is missing in terms of the operational pillar, in that it's not within the powers of the ICC, is the operational reality of capturing and arresting fugitives from justice. There the ICC is limited because it has to rely on cooperation from states. That has been a real difficult issue.

A perfect example of that is one of the fugitives from justice is the president of Sudan right now, al-Bashir. When he went to Kenya, when he went to some other African countries that are member states of the ICC, they refused to act on the arrest warrants, which really exposes the limits of that operational pillar.

Those three pillars are how I like to think about the basic structure of the ICC.

JOHN TESSITORE: Let me just push you a little bit on that. Specifically, what is the added value of an institutionalized court, as opposed to the ad hoc tribunals? Is there something that they do better?

ANTONIO FRANCESCHET: I think what the ad hoc tribunals did 15 years ago, roughly, is they revealed this new possibility. I don't think that the powers that established that court were keen necessarily on this new possibility being permanently institutionalized.

But, as I said in response to your last question, it revealed, at least to a sufficient number of states and members of global civil society, that it was possible and it was necessary to take what was developed in a very limited way for the ad hoc tribunals and institutionalize it more broadly, because the ad hoc tribunals had questionable legitimacy and efficacy. If ad hoc tribunals were the routine response going forward, they have questionable legitimacy because they are at the discretion of the Security Council. They can only be created with a Security Council resolution.

They are also, by design, retroactive and reactive rather than being prospective and preventive.

The ad hoc tribunals, in a lesser way than, say, the Nuremburg Trials, will always have the taint of victors' justice—or at least it's always going to be possible for claims that it's a partial or one-sided exercise in enforcement.

JOHN TESSITORE: So you see the ICC as having even greater credibility?

ANTONIO FRANCESCHET: I do, because it was established by a wider body of states in a multilateral process and because the law is prospective into the future.

JOHN TESSITORE: What do you consider the major contributing factors to the recent normative shift evidenced by the Court's creation toward the idea of individual accountability for the most egregious international crimes?

You mentioned, of course, just a moment ago the conviction of Charles Taylor. What effect do you think this shift has had for international criminal justice? For example, has the ICC had a deterrent effect?

ANTONIO FRANCESCHET: Well, yes, I think there have been shifts. I like to think of the shift toward individual criminal accountability has come in two waves: a sort of standard-setting wave and an enforcement wave.

The standard-setting wave started really in the early 20th century, particularly after World War I and after World War II, in the process of establishing many different fundamental pieces of international law, like international humanitarian law and the Genocide Convention.

Basically, the shift there is to politics. What can politics accommodate? We know that politics accommodates, even for ethical reasons, things that would be impermissible for individual conduct—so starting a war or using deadly force, that's part of politics.

But by the 20th century, in pursuing political objectives, it was decided that there are things that had to be impermissible and criminal in the pursuit of the national interest or in defending the sovereign rights of the state, or even in winning a war. So things like war crimes, crimes against humanity, genocide—those things were declared impermissible. That was the first shift.

The second shift, I think, is more slow in coming and has been sped up by the ICC. It's the shift that we are going to enforce these rules, we are going to enforce this criminal law, and that there is a duty to do it, and to do it in a very institutionalized or systematic way rather than in an ad hoc way, as we've been talking about.

Now, those two shifts I personally think, and as someone who studies this, that those shifts really make sense in light of a fundamental continuity. It's not naïve, I think, to suggest that a simple ethic of punishing wrongdoers is an imperative that is always there, and it's a very strong foundation for the ICC. For me it explains in part why there is such widespread support even across civilizations, different ethical codes. The simple ethic of punishing a wrongdoer is something that lies beneath those other shifts that I had mentioned.

The deterrence issue that you raised is a tricky one. The general sense is that deterrence for atrocity crimes is a very uncertain thing and it's very difficult to prove. I don't think deterrence is the strongest moral argument for the ICC anyway. You could make a very strong argument for, as I said, the ethics of punishing wrongdoers for what they have done.

JOHN TESSITORE: As we know, the drafters of the Rome Statute recognized that the ICC must operate within a decentralized political order—that is, in a world of sovereign states. The Rome Statute makes clear that jurisdiction, and therefore responsibility, lies primarily with states. But when a state is unable or unwilling to prosecute individuals culpable of the most heinous international crimes, the ICC may hold individuals accountable.

Now, that said, how does the ICC determine whether there has been a serious failure of sovereign authority? And, if they decide to charge an individual, how do they do so without appearing to undermine the authority of an individual government? It seems to me that this is a dicey situation and you have to walk a close line.

ANTONIO FRANCESCHET: You're right. The ICC is by design a court of last resort. That's actually in contrast to those ad hoc tribunals, which basically were superimposed upon a national legal system and had authority over any national state legal system.

JOHN TESSITORE: A good point.

ANTONIO FRANCESCHET: The Rome Statute does recognize the decentralized, as you put it, order we have. States have the first duty to prosecute and punish. But the Rome Statute made it quite clear that that responsibility, that first duty of states, cannot be abused in the sense that if a state delays justice or shields perpetrators in some way through a sham legal process, that that is just not on.

Now, the tricky thing here is that the ICC is a bit of a political and judicial power. When it comes to making decisions about, is a state genuinely being obstructionist, it is genuinely unable to act on the duty to punish, it really is the judicial pillar of the Court I mentioned making a judgment call. States can't really appeal a decision beyond that.

The ICC is making the decision on a point of law. But again, they are interpreting facts about the state's intentions and behaviors and institutional realities about capability. It's not necessarily going to be an easy decision.

Unless it's a self-referral—and by that I mean unless a state, like the Congo for example, comes to the ICC and says, "We can't do this; we just do not have the judicial ability to do it; our court system is in disarray," there is no way else but to undermine the state's default authority.

But it's important to recognize that states signed up precisely for that. That was the deal with the Rome Statute.

And so, for instance, with Kenya, when the prosecutor indicted six members of the political elite establishment in Kenya, the Kenyan regime said, "No, no, we want to try these people." The Court looked into it and said, "We don't think the process is moving fast enough. So no, the case is admissible in our Court." Kenya pretty much had to accept it, although they did try to manipulate the situation to get the trials back on Kenyan soil.

JOHN TESSITORE: Let me pursue this. When the ICC actually indicts someone who represents a potential party to a conflict, is it in any way taking a side, or can it really retain its independence from the belligerents?

To use perhaps the most obvious example, we all know the ICC indicted leaders of the Lord's Resistance Army [LRA] in Uganda while the conflict there was still ongoing. There are certainly many observers who believe that the Ugandan government in effect used the Court for its own strategic advantage.

Is there a way that the ICC can prevent actors from exploiting it for political gain?

ANTONIO FRANCESCHET: In the roundtable that you mentioned at the outset, this is a jugular issue. I encourage listeners and also readers of your journal to see for themselves how Kenneth Rodman, Benjamin Schiff, and Michael Struett grapple with it.

JOHN TESSITORE: I second that recommendation. They are all excellent essays.

ANTONIO FRANCESCHET: All of them say—political analysts generally say—that an indictment in a conflict situation is inevitably also a sort of third party act of power that will favor one side or the other and, even if that's not the intent of the Court, that's the outcome. That is the dilemma for the office of the prosecutor.

There is no real way to prevent actors—states like, say, Uganda—from attempting to use the Court, as you put it, for their own ends.

I think the example you raised, the one about Uganda and the Lord's Resistance Army, is quite interesting. Many have second-guessed prosecutor of the ICC Luis Moreno Ocampo's decision on Uganda. First of all, his intervention there seemed one-sided, in that it was going to focus on the crimes of the LRA, at least initially, and not the government.

It also ended up complicating the peace process, because subsequent to the investigations and indictment the government of Uganda seemed to want to enter into negotiations with the LRA that might mean some form of amnesty for LRA leaders, like Joseph Kony.

Many also second-guessed Ocampo because he effectively removed the burden of responsibility from the Ugandan state to prosecute him. Basically, Ocampo accepted the claim that Uganda was in some way unable, incapable, of prosecuting the LRA. But that wasn't factually true. The inability on the part of the Ugandan state was to capture Joseph Kony and the other members of the Lord's Resistance Army. Now remember, when I talked about the operational pillar of the ICC, I mentioned the one thing it doesn't have is the ability to go out and track down and arrest fugitives.

JOHN TESSITORE: Yes. It has to rely on states, or I presume such other bodies as UN peacekeepers, et cetera.

ANTONIO FRANCESCHET: Exactly. It does not have an army, police force, security forces.

Many people were a little bit surprised that this self-referral from Uganda was accepted by Ocampo. My interpretation is that, in effect, Ocampo, the prosecutor, set some uncomfortable facts aside, set aside the likely motives of the Ugandan state, and concentrated on his own intent. His intent was to serve the interest of justice by going after the LRA. I can't fault him for that.

But it may have set a problematic precedent, in that other states, other actors, will be encouraged perhaps to use the Court. It will really be something left for Ocampo's successors, rather than himself, if that starts to accelerate, if the ICC is dragged into a civil conflict, where most people are looking at the facts and saying that there is a lot of hypocrisy going on here and the ICC is being caught up in that hypocrisy.

JOHN TESSITORE: This issue won't go away, and there will be a great deal more said and written about it.

But let me move us along and address the issue of the distinction between domestic criminal courts and international criminal courts, in that the ICC deals with accused criminals who may be still capable of harming a large number of people.

That raises a question: Should the magnitude of harm that an individual may be capable of inflicting play a deciding factor in the prosecutor's decision to pursue a case, if he or she believes prosecution may lead to perhaps even greater short-term bloodshed? In other words, how can the demands of justice be reconciled with the negative consequences that may result from ICC involvement in a conflict?

ANTONIO FRANCESCHET: Again, in the "Roundtable on the Political Ethics of the ICC," I think there was a shared view among the authors that such political realities should and do in fact play some role in ICC decisions. Indicting individuals who command state militaries, or rebel commanders who have influence over different rebel forces—they may indeed react to indictments with more violence. Indictments may make negotiation to end conflict or to provide humanitarian assistance difficult, if not impossible.

When the indictment for the leaders of Sudan was issued, there was a threat to humanitarian groups and, it wasn't as bad in practice as it was threatened, but there was this possibility of short-term bloodshed.

I think the ICC can't reconcile these pressures entirely. It can navigate them, more or less effectively, but it is always going to be with inevitable criticism.

It has to, though, make independent decisions about the facts in relation to the law, and it has to at the same time keep an eye on the potential consequences.

I tend to focus on the positive of this story. The positive of this story is that there is a real ethical choice here between some unacceptable extremes. The Court officials, states, global civil society—they all recognize that callous indifference to these kinds of atrocity crimes is not an option, it's not morally acceptable.

They also recognize that, on the other side of the spectrum, an arrogant disregard for the consequences of a certain measure—like an indictment or, even beyond the ICC, some form of peacekeeping—we have to be attentive to the consequences.

The difficulty again is just navigating in between those pressures, not thinking that there's a silver bullet that the law or politics can provide.

JOHN TESSITORE: Let's talk about your own contribution to the ICC roundtable as it appeared in Ethics & International Affairs. You argue that the fundamental role of the Court is to help establish—or reestablish—a sovereign state capable of systematic rights vindications which is tied to the Court's (and I'm quoting) "provisional authority to coerce."

I want to ask you to expand on this comment a bit. What is the proper relationship between the ICC and sovereign states, and what is meant by the idea contained in the Rome Statute that the ICC should abide by the principle of complementarity? That's an important word that we hear often.

ANTONIO FRANCESCHET: I'll start with that, the last part of your question on complementarity. That word derives from the preamble to the Rome Statute, where it says that the statute as law is complementary to national legal systems. Indeed, national legislatures, when they ratified the Rome Statute, they also had to amend or change their criminal codes so that the definitions of these crimes and the obligation to punish these crimes were national law, not just international law. Now, there is a harmony, therefore, between international and domestic law.

But in terms of enforcement, complementarity ends up being a bit of a different thing. As some legal scholars have suggested, and some political scientists have suggested, like myself, complementarity can be a misnomer if it implies a kind of seamless, conflict-free operation between the ICC and national jurisdictions, because in the end both the state and the ICC have an authority and a duty to punish to the same criminal law, to the same crimes, on the same territory, but only when the state fails.

So there are going to be conflicting views on jurisdiction, and when it comes to the proper relationship between the ICC and states.

I think the proper relationship is identified in the statute. It is that the ICC is a judicial pillar, a mechanism that is there at the disposal of states, or that can temporarily replace the state's typical role here, and therefore at the disposal of its people or at the disposal of the international community. I think that is qualitatively different than saying the ICC is at the top or at the apex of a kind of hierarchical global criminal legal system.

I want to make clear, this is not to adhere to an absolutist view of sovereignty, that the sovereign is the final authority. It does mean that state authority is a key assumption of both the international and the domestic criminal justice systems.

I think in the end the role of the state is to be this general and ongoing source of law and rights for the citizens, and the ICC's role is to support that and to help reestablish that if that has been—

JOHN TESSITORE: But it does have this provisional authority to coerce.

ANTONIO FRANCESCHET: Yes, it does. It means that its authority is not conclusive or final unless the state is unable to do that. It means that it is not an agent of a sort of world state; it is an agent of the international community and its members and the peoples within those states.

JOHN TESSITORE: But at all times the Court can trump the domestic judicial process if it feels it is inadequate. So complementarity takes on a slightly different meaning. It actually suggests that it does have a hierarchy.

ANTONIO FRANCESCHET: Yes, it does. I don't want to suggest there isn't hierarchy, because law and authority in the final instance mean hierarchy. But it's hierarchy that is limited to certain contexts, certain realities, that have been determined to be the case.

JOHN TESSITORE: I see.

Staying with your essay, you use Immanuel Kant's concept of coercion in order to legitimize the purpose of the ICC. Coercion has a special meaning for Kant and refers to an act that limits freedom.

What is this special meaning of coercion in terms of the ICC specifically? How does the state legitimately exercise coercive power, and how is the ICC authorized to coerce but only, as you argue, provisionally?

ANTONIO FRANCESCHET: Well, just to start with the special meaning of coercion for Kant, it's quite clear that Kant did not contemplate the possibility that states would deliberately go to war against their own people through genocide or crimes against humanity. He didn't really even contemplate that groups within a state would go to total war or genocide against each other. That situation for him would mark not just lawlessness but a form of evil, a concept he actually didn't really shy away from, although it doesn't figure predominantly in his discussions of the state and rights.

Now, what makes Kant relevant to this topic then, is that he did give a great deal of thought to a couple of general problems. One is states evolving closer in practice to the moral ideal of universal rights, and secondly, to the problem of international enforcement of rights in a lawless situation in that we don't have a world state. So it's from that angle that I used in my essay for the roundtable his basic concept of provisional right and coercion. This gives me a chance to unpack those a little bit.

For Kant, rights and coercion are two sides of the same coin, in that our individual freedom has to be limited by law to make it just. We have to live together under a common set of coercively enforced laws. It is that coercive enforcement of the law by states that permits each of us as citizens in our society to execute our free choices without unjustly hindering each other. That sounds pretty abstract, I'm sure.

But Kant actually thinks existing, even imperfect states in our world—or in his world in the late 1700s—are based on this underlying set of ideas about coercion, and for that reason states are important conclusive authorities for vindicating rights because they systematize societal-level freedoms.

Now, we don't have a world state. But it's still possible, if you read Kant, to establish some form of rights enforcement in that imperfect situation, in that situation where we lack a final conclusive authority over all the individuals in the world but also over all the 193 states in the world.

So his concept of provisional authority, which he really applied, for instance, to his concept of a peace federation, can be applied also to something like the International Criminal Court as an agent that can serve as a surrogate for a world state, in a sort of transitional sense, to improve the prospects of safeguarding and protecting individual rights.

That's the underlying philosophy of my contribution to the roundtable.

JOHN TESSITORE: Is it an aspect then of what we call global government? Is that, at least tentatively, within the judicial sphere what Kant would see as being the overarching authority?

ANTONIO FRANCESCHET: Well, that is controversial among Kant scholars. I am in the camp that looks at Kant as someone who values dearly the existing state system because it does promise and provide for, historically speaking, a kind of first wave of universal rights protection, but that it is limited unless it can also gradually evolve to some form of world state. It can't be, I think for Kant, done prematurely, and it can't be done imperially, meaning enforced upon states and peoples. But as a sort of long-term project, personally I think that is where Kant is headed, and I don't have any problems with that as a long-term prospect for world politics.

JOHN TESSITORE: You have dovetailed perfectly into my next question, Antonio, because I want to ask about longer term. Looking ahead, what do you think are the greatest challenges for the ICC in the next 10 to 20 years? You mentioned already, for example, that starting in 2017 the ICC may be able to bring charges for the crime of aggression. How do you think this will affect the ICC's mandate, its efficacy, its reach? Where are we headed?

ANTONIO FRANCESCHET: I can distinguish between hoping certain things and predicting certain things.

JOHN TESSITORE: Okay, make that distinction.

ANTONIO FRANCESCHET: We can hope for a consolidated rule of law on a world scale. But predictions are risky, and I don't think I can predict anything. I can identify a few concerns that came out in the roundtable that are worth putting forward when thinking about the longer-term future.

One of them I identify in the introduction to the roundtable. I get it from a historical analyst of politics, E.H. Carr. When Carr in 1939 was thinking about the League of Nations and how that order was being undermined, in effect, and also things about the Kellogg-Briand Pact, which in only about 10–12 years after 1939 was supposed to end the problem of war, he worried about—I think this was a very Kantian worry of Carr's—premature reform. The worry is that unless the underlying political conditions are ready, or if there are insufficient political preparations, a legal institution will simply collapse or become delegitimized. Others in that roundtable—Benjamin Schiff, for instance—expressed that kind of concern.

The political condition that worries me a great deal is lack of trust in the international system and some very sharp inequalities, or perceived asymmetries, in the international system. I think the ICC already faces this problem, the problem of divides in world politics between West and non-West, between Africa and the more developed countries.

The Court risks being caught up in and mirroring some of the asymmetries of world politics. It's something that is a daily thing for the ICC. But also over the longer term, unless those kinds of asymmetries, distrust, in world politics can be addressed, it will affect the ICC.

Bringing those points together—you mentioned aggression. You mentioned that this is now going to be pursued. If in 2017 enough states within the Assembly of States Parties agree that the definition they worked up of aggression should be punishable, it will come into play. But it is going to come into play in the context of asymmetries, inequalities, and distrust.

JOHN TESSITORE: And possibly exacerbate them?

ANTONIO FRANCESCHET: That is a concern. For instance, the Security Council members will be immune from that kind of criminal prosecution. Even the members of the Assembly of States Parties now have to opt in to this aggression scheme. So it could end up being more patchy in terms of application in some of the other crimes.

Other people worry also when we are talking about aggression that controversies over aggression will overshadow or detract from the ICC's work in the other crimes.

JOHN TESSITORE: Now we're talking about capacity.

ANTONIO FRANCESCHET: Not capacity—

JOHN TESSITORE: Can the Court really deal with so much?

ANTONIO FRANCESCHET: Yes, that's right. Will the Court be overburdened, and will the controversies in aggression, for example, mean diminished consensus or diminished cooperation with the Court in pursuing genocide crimes or war crimes or crimes against humanity?

So it's difficult to make a prediction. I'm not sure whether aggression is a premature act or not. Twenty years ago or 15 years ago people would have thought pursuing genocide or war crimes through an ICC was premature, and yet we are there. So sometimes bold steps are needed. It's probably in retrospect that you can say that was premature.

I think E.H. Carr largely was looking in retrospect and saying, "Kellogg-Briand Pact, League of Nations, the political foundations were not there." I think it would have been difficult for him to predict that but it was easy for him to diagnose it after the fact.

JOHN TESSITORE: It sounds to me like there will be a great deal of grist for your mill in the coming years, Antonio.

ANTONIO FRANCESCHET: I think so.

JOHN TESSITORE: We look forward to reading and hearing what you have to say, you and your colleagues.

I'm afraid we have to stop here.

Once again, we have been speaking with Professor Antonio Franceschet, professor of political science at the University of Calgary.

Thank you, Antonio, for joining us, and the best to you in the work ahead.

ANTONIO FRANCESCHET: Thanks very much, John.

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