ICC Forum

The Politics Lecture Question — Comments

Richard Steinberg and Helen Stacy on Politics and the ICC

(The substantive portion of the talk begins at 15:45)

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Comment on the Politics Lecture Question: “To what extent should the ICC Office of the Prosecutor consider or engage in politics to advance international justice?”

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As we have learned, the ICC is not naive about its position. Yes, the court must be aware of its political implications; this is absolutely necessary to successfully navigate the international justice scene. However, the strategic utilization of its position, while attractive in the possible promotion of peace (as in the peace vs. justice debate), is a short-term maneuver.

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However noble the cause, most institutions, if not all, that are around politics become politicized to some extent. It is inevitable, as one of the major forces at work in the world is political.

I think it would be difficult to disengage the ICC completely from politics, since its existence is a political one. At its founding and in the earlier years of the court, I think that the ICC would not be able to divorce itself from politics of the many different countries.

However, I think that as the ICC matures and establishes its legitimacy, I think that the ICC Office of the Prosecutor should focus on its main goal: delivering justice and implementing criminal justice proceedings. I think that continuing in engage in politics can be harmful to the court's image and may delegitimize its value in the international community as an impartial body that upholds peace and justice.

I believe that the ICC must engage in some politics in order to be an effective international body of justice. Politics does not need to be high profile actions, but it can and should entail talks and negotiations with powerful players on the international justice scene. The ICC must keep rapport with the UN Security Council and other UN bodies because it is not a self-sufficient, funded organization. Its internal organization inevitably will affects its choice of whether to engage in politics or not. However, the ICC should not allow partisanship to creep into its decision-making powers—the balance must be between engaging in effective politics but also remaining unaligned with any particular sovereign state or national entity.

While it is inevitable that politics must be considered when taking actions, it is important that the ICC does its best to remain as apolitical as possible. The ICC must take a delicate position by both acknowledging political reality when considering its actions and simultaneously maintain its objectivity in order to assure its legitimacy and reputation. It is important to acknowledge the impact that politics may play, because by challenging states' authority the ICC will risk exposing its weaknesses in a counterproductive fashion. This especially in relationship to the apprehension of defendants. In the short term, the ICC should focus on the good it can do to the greatest effect. By securing its legitimacy in the short term, the ICC will strengthen its ethical and political reach and have the greatest opportunity to have a stronger position within politics in the future. Having the ICC too engaged in politics will also cause irreparable harm to its reputation. The ICC's focus on Africa has already biased some to dismiss it as a tool of Western oppression. Acknowledgement of political reality should not prevent the ICC from attempting to remain apolitical. It is important that the ICC carefully maintain this balance in order to be most effective in its mission.

I think the ICC should engage in politics to some extent. It shouldn't turn into just a political institution but I think in order to promote its goals it is necessary to some degree to play the political game. For instance, here in the US, there was the civil rights movement, and ultimately part of that was the passing of new laws by congress to promote the civil rights cause. There was the desegregation of public places, education, and more. Then there were also decisions made in the supreme court which supported the civil rights movement as well. Now, I'm not a legal historian so this may just be blatantly wrong, but I think that the Supreme courts decisions which supported civil rights have had a positive role in coming closer to equal treatment in the US. If the supreme court had remained neutral and only aimed for justice instead of also playing politics, then they may have had a lesser, possibly even negative effect on the civil rights movement. Similarly, I think if the ICC chooses to abstain from politics then it will miss its chance to promote the most good and may end up slowing or even negatively impacting positive changes.
Second, I don't think it's justifiable for the court to do something which may be clearly against obtaining peace. So to avoid this it will need to at least make political considerations even if it doesn't play politics as was mentioned in the lecture. For example, suppose that the court wants to prosecute the head of a country, and the most obvious successor would be much worse than the current head and would likely cause all kinds of violence or ruin to the citizens of that country. In this case, I think that justice would call for finding some sort of solution to the problem of the successor and not just calling to trial those who have already commited crimes. I think the court should promote peace and so in cases like this, it should play politics. Admittedly, there will rarely be a time when bringing the criminal to trial is obviously bad for the country, but this examples illustrates the types of political considerations which may need to be made.

On one side, the goal of the ICC is to bring those who have committed atrocious crimes to justice. However, on the other side, this process of arrests is but a means to the end of achieving global peace. While, obviously, arresting destructive individuals aids the process of peace, there are times where delaying or refraining from pursuing these individuals may be detrimental to political relations, and, in turn, global peace. When these situations occur, the ICC must remember to consider the net effect of their actions. In class, we discussed a situation where two people who are running for office might be prosecuted by the ICC. While I am unsure as to the specifics of the situation, I would posit that, if, by arresting the leader of a country, they through the country into turmoil, they are doing more harm than good.

The crux of this issue comes down to how we (citizens, academics, the international community) want the ICC to function. Should it be a political instrument used to pressure leaders? Should it be another tool in the world of international diplomacy? Or do we want an independent international court of law to promote justice, seek retribution, and eventually promote peace? Personally, I feel the court should pursue the second. We already have diplomatic means of pressuring leaders. We already pursue peace and justice through politicized bodies. If we allow the ICC to play politics rather than operate solely on principles of independence and jurisprudence, then its definition of peace and justice will inevitably grow politicized and more in line with the existing values of the international community. The ICC can only function if it can achieve the status of a universally-supported criminal court of law. This is predicated on two conditions. First, the court must demonstrate its commitment to a legal approach to justice that will not be swayed by any political demands. Two, it must demonstrate to the world that it serves a useful legal and moral purpose in the pursuit of justice. Thus, it is imperative that the ICC refrain completely from participation in politics, lest it grow resigned to be no more than another diplomatic tool of the international community.

I have trouble refuting the argument that the ICC should be used to promote peace--and if this can only be reached through somewhat politicized means, this is justified. However, your post has provided a little more context in which to consider this question. If we already have an international diplomatic system, what is the role of the ICC in further adding to this politicized international climate? This international justice system is a long-term project, and as you say, the promotion of justice, and, I would add, the establishment of internationally recognized rule of law, may "eventually" promote peace. The ICC must continue to operate with this long term goal in mind. This is not to say, however, that it can ignore its highly politicized current context. As we have learned, the ICC is not naive about its position. Yes, the court must be aware of its political implications; this is absolutely necessary to successfully navigate the international justice scene. However, the strategic utilization of its position, while attractive in the possible promotion of peace (as in the peace vs. justice debate), is a short-term maneuver. If the court takes up the role of political negotiation, it sets an uncertain precedence for the court and undermines its legitimacy in the long-term road to international justice and peace through the rule of law.

Appreciate your time and request your willingness to answer some questions. For my dissertation on Global Leadership, I am conducting research on the ICC and transitional justice and its role in reconciliation. From my perspective, the ICC judges and prosecutors is not only a lawyer but also should be a leader with political and diplomatic skills as a critical traits and competences. However, the literature does not discuss the leadership skills, politics, and diplomacy as a trait and criteria for ICC judges. In my research, the Rome Statue does not provide guidance or directives on necessary traits and competences outside of the legal domain. However, effective justices and prosecutors are leaders within there industries and yield power and influence through their decision making and interactions with defendants and victims. Ironically, I am finding no research that links between leadership principles, gender sensitivities, power distance and avoidance, and political and diplomatic frameworks to assist judges and prosecutors in through the process of reconciliation. The literature discusses the judges and prosecutors activities and role in truth and reconciliation commission, reparations, memory, and other reconciliation measures on a macro level, rather than as leaders, how they make decisions and the effects of those decisions on the reconciliation process. Therefore, my questions are as follows: 1. Is there any legal authorities in the Rome Statue to address non state actors (lone wolf), its network organizations, and those that commit terrorist acts? 2. What leadership strategies are used in the ICC to strengthen transitional justice in the reconciliation process? 3. What is the leadership hierarchy within the ICC construct and how are they determined? 4. In state sponsored terrorism, does the ICC hold state leaders responsible in their support to non state terrorism? If so, what authorities case I can not find any in the Rome Statute or the Responsibility to Protect framework?

Thank you for your attention in this matter.

Andrew Campbell

Prosecution is not a political issue. the consequence of prosecution findings are absolute. to allow the arm of the court organ to engage in politics where a general assembly of authority and juirisdictions exist to form a court of jurisdiction for all allows all to engage in political prosecution as an automatic. prosecution is for the safety and safeguard as common noise protecting the people. if the prosecution merely by being hired in inferior supreme courts as an extension combined of the superior supreme court, the illusion of public elections by supreme courts would become existing in fact merely by a prosecutor having allowance and be allowed to engage in politics, the proper procedure if prosecution as a right has such right, would be only to place to test the state elected, or the lawyers intent within as prosecutors in an international observational sitting.

There is a possability that a whirlwind effect in mind could effect the minds of police sphycologically making that force in effective or acting useless for lack of better english words and at an expense to the court or the people of state.

What are titans, and God,

Titans describe a force of nature that when spoke provoke the Gods. Observe and write truth in reality as you observe your own counter reactions. Titans have been silenced for long enough, and a whistle blowing Enforcement Court is a Goal to infiltrate and review what God, has done if popularity elected.

I am trained in actual sword use when a youth and child and young, Character I am trained by China as a colored Kid my home from others that provide me a home I am thankful for on their lands, and if you watch movies...see the joint at the elbow...when sword trained, that joint to the hand is huge, you can see defined all fingers ligaments surrounded by muscles, and the thumb muscle between the point finger and thumb when squeezing hand while ne huge, as the most active muscle in unique training of hand use. over time within four years.

Although I'm sure this has been articulated numerous times, I found the most interesting part of the discussion the different perspectives between our moderators and professor McFaul. Ultimately, I found myself agreeing with Prof. McFaul in that an ICC with little or no teeth will be ineffective in deterring those that are already willing to commit atrocities. While the 'line in the sand' the ICC may create solidifies a global consensus against atrocities, I have a hard time believing that those who are willing to commit such crimes will be deterred by an idea. Therefore, the question to me was how to increase the effectiveness (in terms of arrests etc.) of the ICC without jeopardizing the sovereignty of nations and creating a global police force.

As an international body, the goal of the International Criminal Court should be to to remain apolitical - uninvolved in interstate politics. That is, in order to achieve just proceedings in both intent and practice, the ICC must remain unbiased. However, it is true that politics between the UN Security Council may inevitably affect the Court, thus making it the goal of the ICC Office of the Prosecutor to make impartial and equitable decision. On the other hand, it also must be acknowledged that the ICC has no independent power to apprehend those for whom it arrest warrants. This accounts for the relative lack of success of the ICC in criminal convictions. Hence, the effectiveness and fate of the ICC rests on a double edge sword on which it must fight to remain relevant without becoming a playing card of any one state while staying uninvolved in politics across borders.

I think something that would clarify the debate regarding the extent to which politics should be involved in the functioning of the ICC is a prioritization of goals. It seems to me that controversy and tension arises when it is unclear which goal to prioritize over the other. For example, the ICC's main goal could be to deliver justice and reparations to its victims. Another main goal is to end ongoing conflict, that is, do whatever is necessary to end the conflict, including negotiation and bargaining. Another goal is deterrence --- to disincentivize violence and genocide as an option for world leaders and military leaders. The most obvious tension is between the deterrence goal and the goal of ending conflict timely. Ending conflict quickly often requires retraction by the ICC and solutions where the accused gets a lighter sentence or is allowed amnesty. This, however, flies in the face of the victims who have suffered at the hands of such a criminal. It is not easy nor clear which goals should be held more important than others however an extensive and critical examination of what is most important, maybe based on the measures of "numbers of lives saved" or "the long term effects of justice" etc can help clarify the overall mission of the ICC and as a result would dictate how much politics should be involved in that process.

However noble the cause, most institutions, if not all, that are around politics become politicized to some extent. It is inevitable, as one of the major forces at work in the world is political.
That being said, I hope that the ICC Office of the Prosecutor stays apolitical as much as possible. The games that are played, especially within the Security Council, possibly create discrepancies in justice. Can justice really be done if the Prosecutor is caught up in other states' interests?
However, another goal of the ICC is safety. Just as the speaker said during the Q and A, if a solution for safety must be created by political means, I am completely for it. We must have confidence that the ICC will be able to apprehend these criminals and eventually prosecute them.

Professor Steinberg states that one of the objections against his assertion that the ICC should engage in politics is "legitimacy", and he counsels that the court needs to preserve its legitimacy by dabbling in politics in a restrained (almost clandestine) manner. But legitimacy for an untried international institution isn't like a cloak which can be donned as needed. As soon as it is seen taking actions motivated by politics rather than law, it will be thought of as a political institution. The quasi political/judicial institution is a political institution, not a legal one.

Beyond public perception, there's an internal problem. Once the ICC starts to see itself as politically driven, politics will be like a cancer running through the organization. The overlay of politics will taint every decision, each of which will require consideration of potentially adverse political consequences. Professor Steinberg even suggests building up capability (37:00) within the Office of the Prosecutor to analyze the political consequences. Is the idea that the Prosecutor will decide whether to investigate or indict only after consultation with the political experts within her office?

Once the court becomes a lever to be manipulated by political considerations, it will be seen as a tool by the existing power structure and by those it seeks to influence. Does the ICC really want to become the weapon used by political organizations to make policy changes? In practice, this is likely to mean that the threat to indict and prosecute the worst of the worst will be bargained away in exchange for concessions on the ground. Do we go from fighting impunity to using justice as a bargaining chip?

If there are adverse political consequences to an action of the ICC, then the ICC can be told to back off through a formal action of the United Nations or, as Professor Steinberg suggests, through an action of the Assembly of States Parties. Let the international political organizations engage in politics and leave the ICC as a purely judicial actor.