Morality is culturally relative as are our responses to harm. There is no singular definition of what constitutes “good” or “just” or “fair”. These words are given definitions through societal norms, pressure, and groupthink. Therefore, how do we assign meanings to these concepts on an international level? Which conceptions of “fairness” and “justice” inform the decision of which crimes against humanity, genocide, and war crimes should be prosecuted, and which crimes should be remedied through non-punitive responses?

The global normative order, as presently constituted, rests on a corpus of mainly Western norms, which, over time, came to be regarded as universal by the international community at large.8

However, we should not be globalizing and universalizing existing power structures that are already being scrutinized by populations on a national level. If a tendency towards prosecution and punishment can cause such great harm on a national level, as we have seen through practice in the United States, then the ICC taking, upholding, and legitimizing that same approach will only cause greater harm on a much larger scale.

States from the developing world were born into a pre-constituted system of international law, in which a small group of states had already determined what constitutes a legitimate polity, which actors are entitled to all the privileges and immunities of sovereignty and which aren’t, and with which pre-existing norms arguments must resonate in order to be accepted as legitimate.9

Thus, non-western countries are wrongly left out of the discussion and the approaches to crime and harm they have taken for centuries are often disregarded an illegitimate because they undermine the existing power structure of the western legal system. Ultimately, “international justice should have a more international, less narrowly western, character because it is international.”10

In this comment, I argue that the ICC should redefine its conception of “justice” within the meaning Article 53 of the Rome Statute if it wishes to be seen a legitimate force in international law. In Part II of my comment, I discuss how the western instinct to prosecute and punish often fails to facilitate justice in the ways we expect it to. Then, in Part III, I argue that the ICC should make an individualized inquiry into whether prosecution will facilitate justice in a particular case or whether there are other, non-western, modes of justice that would be better accommodating for the relative victims. Finally, in Part IV, I set out how this reconceptualization of justice fits within the Rome Statute framework through Article 53 and thus affords the Prosecutor the tools necessary to take a practical and noticeable shift away from prosecuting crimes.

II. A Western Instinct to Prosecute Often Fails to Facilitate Justice in the Ways We Expect it To.

Most folks who uphold western legal ideals do so because they have faith that through prosecution, punishment, and incarceration, they can successfully remedy harm, hold perpetrators accountable, and deter future criminal acts. These outcomes are assumed; however, in practice, they are not always the reality. And perhaps, more importantly, these western ideals prioritize punitiveness over healing.11

I would even venture to argue that prosecution never leads to accountability and that it was never intended to. When we prosecute crimes, the onus is typically on making the perpetrator pay as opposed to making the victim whole. However, in order to have accountability, there needs to be an understanding and interrogation of what the actual harm was, how the perpetrator was responsible for that harm, and the steps the perpetrator can take to address and remedy that harm, in accordance with the victim’s wishes.

Instead, the west prosecutes and incarcerates at alarming rates and instead of remedying the harm towards the victim, the state creates more harm by dehumanizing and punishing instead of rehabilitating. On the other hand, there are some modes of justice that do impose accountability, such as “truth commissions, reparations, traditional confession and reintegration rituals, [as well as] other non-penal means” that the ICC could consider as legitimate alternatives.12 So why then is prosecution considered the only mode of justice when the Prosecutor is deciding whether or not to take on a particular case “in the interests of justice”?

This is mainly a result of the west, and subsequently the ICC, adopting a retributive theory of justice. Retributive justice is the idea that perpetrators should be punished for their crimes simply because they deserve it, and not because it remedies a harm or creates some other benefit for the victims or society as a whole.13

For the reasons discussed above, this is the wrong approach. For one, it fails to address the cause of the crime and thus provides little utility in preventing future harms.

The way in which the ICC seeks selective individual criminal responsibility tends to mask the deeper structural problems that drive armed conflicts, such as struggles over natural resources and land disputes.14

Furthermore, it makes the assumption that crime necessitates punishment, which is a flawed and limited western way of thinking.

In the aftermath of crime, the essential duty of a state (or upon its default, the ICC) is to recognize and repudiate the crime, and stand in solidarity with the victim.15

Instead, a retributivist focuses on the punishment of the perpetrator regardless of what would make the victim whole, essentially ignoring the root cause of the crime and allowing harm to perpetuate.

While there may be some cases where prosecution is necessary to remedy a harm inflicted upon a victim, it should not be an instinctual decision. When the Prosecutor is considering whether to decline prosecuting a case “in the interests of justice,”16 an individualized determination of how to achieve justice, with a focus on addressing the harm and centering the victim, is necessary if the ICC wants to legitimize itself by including non-western legal traditions in their deliberations.

The Rome Statute’s Preamble describes the ICC as an instrument designed to contribute to the prevention of “grave crimes [that] threaten the peace, security and well-being of the world.”17 Some argue that international prosecution is necessary for the crimes covered by the ICC “in order to prevent their recurrence through the deterrence, incapacitative, or norm-reinforcing effects of punishment.”18 Those who support this contention believe that if genocide, crimes against humanity, and war crimes are regularly prosecuted and punished, there will be a deterrent effect in preventing those crimes from happening on a global scale.19 These expected benefits, however, even on a national level, are unpredictable and often unrealized. On an international level, this unpredictability is intensified.

For example, a rebel against their own government who commits crimes against humanity is less likely to be deterred by the threat of prosecution than a government who would place more weight on the legal and social consequences.20 Moreover, “a growing consensus in the deterrence literature suggests that the swiftness and especially the likelihood of punishment may more effectively deter crime than severity of punishment.”21

Without the necessary resources, the ICC is unable to reliably prosecute the covered crimes at a frequency necessary for any deterrent effect to take place. Paired with the difficulty of identifying perpetrators in the types of crimes covered by the ICC, the likelihood of punishment is likely too small to have any real deterrent effect, at least small enough to make deterrence a weak justification for prosecution as a mode of justice.

III. Claim Two

A. Prosecution Can Sometimes Derail Peace

Not only does a prosecution-centric mode of justice often fail to remedy the harm caused to the victims themselves, but it can also cause more harm to the victims of a crime or to innocent third parties who are forced to face the fallout from an unwanted ICC investigation into crimes committed in non-western countries. This is often coined the “peace vs. justice dilemma: doing nothing results in impunity because of the state’s blanket amnesty, but bringing charges threatens disaster for innocent third parties.”22

This is the perfect example of a situation where a broadening of the conception of justice within the meaning of Article 53 would pave the way for a better and less harmful avenue to justice while still upholding the objectives of the ICC. Namely, if the ICC were confronted with a situation in which prosecuting the crime would cause more violence or harm, they would have an arsenal of other well-tested and non-western modes of justice available to them that would entitle them to decline to prosecute a case in the interest of justice if it were in the best interest of the victims and communities involved.

Prosecution does not come without its risks and the ICC should take a step back from their retributive perspective and consider the social and political implications involved in the trying of a case and whether they would be causing more harm than good. For example, among other possibilities, the Prosecutor may have to determine whether an ICC prosecution would either:

1. end an insurrection or deter a surrender;

2. lead rebels to flee or lead rebels to kill innocent third parties; or

3. reconcile hostile ethnic groups recovering from an ethnic war or fuel more hatred between them.23

The question then becomes whether prosecution is the appropriate end goal, regardless of any possible consequences.24 The ICC seems to answer this question in the affirmative by insisting that the ICC is a judicial as opposed to a political body.25 But law is inherently political and any insistence to the contrary seems to be an attempt to cover up this fact.

It is notoriously difficult to determine whether a past regime of punishments had subsequent deterrent effects. It is all the more difficult to predict the future, where the future that counts involves agents and circumstances far removed from past precedent. Moreover, the calculation of costs and benefits must extend well beyond the immediate consequences to the longterm effects of a prosecution.26

Thus, the ICC needs to take an individualized look at whether prosecution is in the best interests of justice in a particular case by weighing the possible consequences of prosecution against its necessity and any alternative modes of justice that could meet the same objectives.

If the state’s retributive duty is to recognize victimization and reaffirm the value and rights of the victim, then arguably we should understand criminal punishment as simply a means of fulfilling this duty, and be open to the possibility that in some situations, non-penal instruments may be better able to do so.27

Again, prosecution is not necessarily the wrong decision in every case but it should not be the instinctual one.

B. Prosecution May Neglect the Wants of Non-Western Victims

The ICC should be adopting non-western legal traditions into their definition of justice but these legal traditions should still be implemented in accordance with the wants of the victims in a particular case. The issue with the ICC’s practice currently is that countries with non-western legal customs and practices are often unable to get justice through ICC prosecution alone.

The idea of justice, along with morality as a whole, is culturally relevant. Thus, in order to understand and facilitate justice for a particular victim or group of victims, it is essential to understand the social practice of its legal community.28 The policies of the ICC should thus prioritize a wide array of social practices if its aim is truly global justice. Namely, you cannot render justice on an international scale unless your conceptions of justice apply internationally as well.

For example:

[A]n African […] cannot appreciate a treatment like imprisonment, which, if it benefits at all, is benefiting only the government, in total disregard of the victim and the African need to maintain a social equilibrium.29

In other words, you cannot apply the same mode of justice universally and expect it to satisfy every culture’s definition. And unless the ICC purports to hold itself out to be a western hegemony, it should be concerned about that implication.

The ICC needs to implement:

[An] emergence of a normative order in which the different national, regional and functional form the building blocks of the international community […] that is underpinned by a core value system common to all communities and embedded in a variety of legal structures for its enforcement.30

However, still, it should be noted that traditional modes of justice are complex, and it will take effort to compile and understand these notions:

[I]n part because their judicial functions are bound up with the extensive social education received in the home and in the community through teaching, surrounding, the celebrations, and everyday activities of the community.31

These notions will often be difficult to understand and access unless the ICC physically brings forces to the ground and into these communities to gather insight. These investigations can take place gradually, through the individual inquires that should be taking place at the initial stage when the Prosecutor is determining whether or not to decline to prosecute in a particular case.

None of this refutes the claim that criminal punishment of some kind is required to vindicate the victim, even if the particular sentence is necessarily dictated by social, economic, and historical expectations peculiar to a particular culture. But it does suggest the possibility that criminal punishment itself is an historical and contingent means of fulfilling the retributive obligation, and not the only moral response.32

In this comment, I challenge the ICC not to abandon the concept of prosecution altogether, but to simply consider and rework its opinion on non-western legal traditions and legitimize them in the same sense.

IV. A Reconceptualization Through Article 53

A. Declining a Case in the Interests of Justice

Article 53 of the Rome Statute provides, in relevant part, that:

[T]he Prosecutor may conclude that there is not a sufficient basis for prosecution because […] a prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of the victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime.33

Although the ICC does not provide explicit insight into what would qualify as within the interests of justice, this statutory language does give us several factors to balance, including what is in the best interests of the victims.34 This language in the Statute holds weight because it explicitly affords the Prosecutor a legal means of taking a step back from a western instinct to prosecute where prosecution is not what the victims want or in situations where the harm caused by the perpetrator will not be remedied through prosecution alone.35 In contrast to the retributive approach we see so often in the west:

The ICC is also capable of supporting mechanisms that are restorative in nature: Article [53(1)(b)] specifically juxtaposes the traditional criminal justice considerations—the gravity of the crime and the interests of the victims—with the broader notion of “interests of justice” and clearly indicates that the latter might trump the former. Thus, the ordinary meaning of this text, examined in the light of its object and purpose, suggests that “interests of justice” is a relatively broad concept.36

Thus, I invite the Prosecutor of the ICC to take this opening, an opening that is fully supported by the laws and objectives governing the ICC, and find ways to facilitate more justice for a greater number of people. When such a clear inclusion of other modes of justice exists within the Rome Statute, it raises the question of why the ICC has not already included non-western legal traditions into their definition of “justice” as its used in Article 53.

While there are many things unclear about the language contained in Article 53, including in which situations a prosecutor may be prohibited from declining to prosecute a case,37 what is clear is that:

The Rome Statute and the ICC are in no way meant to ‘discourage attempts by national states to come to terms with their past […] It would be regrettable if the only approach to gross human rights violations comes in the form of trials and punishment [and] every attempt should be made to assist countries to find their own solutions provided that there is no blatant disregard of fundamental human rights.’

The ICC should elect to give non-western cultures a voice in the international legal realm, especially when to do so would not violate the Rome Statute, and more importantly would often prevent more harm from being perpetrated—a common consequence of prosecution.

B. When the Interests of Justice Would Still Require Prosecution

As aforementioned, there still remains the question of when, where it’s not in the best interest of the victims, the interests of justice would nevertheless necessitate prosecution.38 This is relevant because, although prosecution is never ideal, at least “where the prosecutor is exercising reasoned discretion rather than acting in arbitrary or politically biased ways,” the decision is “governed by principled criteria reflecting the purposes for which the ICC was created.”39

What should be considered successful through this process of redefining what justice means is not necessarily an abolition of prosecution altogether, but a more inclusive ICC that legitimizes and gives weight to the belief systems of non-western cultures.

On a practical note, it is important to recognize that traditional legal traditions may not always be feasible and able to work or comply with the objectives of the ICC. Again, what is essential to this mission is getting on the ground and gaining insight into legal traditions that can then be contemplated as possible alternatives to prosecution when we taunt a promise of justice.

Traditional practices […] are not without their shortcomings, and little has been written about the manner in which customary mechanisms might meet the stringent requirements of international law in determining accountability and the manner in which “justice” in whatever guise should proceed.40

For example, some legal traditions may have the unwanted effect of upholding undesirable power authorities, thus creating more harm.41 Or, alternatively, perhaps a legal tradition is not universally held throughout a county and is thus not desired by a large majority of victims.42 It is therefore vital to recognize that “not all customary laws are necessarily benign.”43

The decision to decline or to prosecute is going to necessitate an individualized determination on a case-by-case basis, taking into account, and prioritizing, what the victim desires and balancing that desire against any possible consequences that may result from that action or inaction.

Thus, it is necessary to do the work and consider exactly “what standards customary mechanisms must meet” in order to satisfy both the conditions of Article 53 and “those who insist that only Western models will suffice.”44 For the former consideration, we must only look towards the necessary procedural safeguards.45 For the latter, it all comes down to what mode of justice will facilitate the most accountability,46 as opposed to strictly looking to punishment as the end goal.

V. Conclusion

The ICC should rethink its practice of commonly viewing prosecution as the only legitimate mode of justice. The ICC has essentially internalized a western framework for what justice and accountability look like—namely, punishment. However, the ICC is not just the west, it’s international. It follows that the ICC’s conception of justice should be as well.

It is not just non-western countries that are beginning to question the effectiveness and morality of prosecution as a means to facilitate justice. Prosecution is intertwined with incarceration, a combination that commonly produces more harm than it remedies. This level of harm is then exasperated when taken to an international level.

A western outlook on justice is a retributive one, based on the idea that perpetuators deserve to be punished for their crimes, regardless of other social implications. However, a retributive theory fails to take into account the actual harm caused and how to remedy that harm—a healing that rarely occurs through prosecution. The ICC should take a more victim-centered and transformative approach to facilitating justice because what should be prioritized is not the perpetrator, but making the victim whole, in whichever way that looks like for them.

Moreover, prosecution is not just ineffective at deterring future harms, but at times it can bring more harm than good. In every decision there are conflicting interests, and its often difficult to ascertain whether a prosecution will in fact facilitate justice or whether it will derail peace.

When determining whether or not there is an alternative to prosecution that fits within the definition of justice as described in Article 53, it is essential that the ICC take an individualized inquiry into whether prosecution is in the best interests of justice within a particular case.47

More specifically, the ICC should prioritize the voices of non-western victims, who are often shut out of the decision-making process. This is not to say that prosecution must be abandoned altogether, but traditional legal systems need to be included in a very legitimate way. Namely because justice is relative, and by excluding huge subsets of people from being able to achieve justice through the ICC, the ICC loses some of its own legitimacy.

Article 53 of the Rome Statute provides a practical and legitimate mode of implementing non-western legal traditions into the framework of the ICC. Article 53 assigns the Prosecutor the right to decline a case if it’s within the interests of justice. The specific language of the Statute even prioritizes the wants of victims, thus providing a very explicit mechanism to then prioritize restorative justice.

Still, implementing Article 53 will require an individualized look at what mode of justice is best suited on a case-by-case basis. A mode of justice which forces the greatest amount of accountability while limiting the harm it causes itself should be the aim of this inquiry.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See Vivien Stern, An Alternative Vision: Criminal Justice Developments in Non-Western Countries, 28 Soc. Just. 88, 88–89 (2001), paywall. ↩

2. 2.

   Id. ↩

3. 3.

   Id. at 89. ↩

4. 4.

   Theresa Reinold, Constitutionalization: Whose Constitutionalization: Africa’s Ambivalent Engagement with the International Criminal Court, 10 ICON 1076, 1078 (Oct. 3, 2012), available online, doi.

   (“The ICC seeks to establish a culture of accountability and send a signal to would-be perpetrators that no one is above the law. These are the fundamental normative propositions underlying the Rome Statute.”). ↩

5. 5.

   Id. ↩

6. 6.

   Id. ↩

7. 7.

   Id. at 1080. ↩

8. 8.

   Id. at 1081. ↩

9. 9.

   Id. at 1086. ↩

10. 10.

    Ray Nickson & John Braithwaite, Deeper, Broader, Longer Transitional Justice, 11 Eur. J. of Crim. 445, 448 (Oct. 17, 2013), available online, doi. ↩

11. 11.

    Stern, supra note 1, at 88. ↩

12. 12.

    Eric Blumenson, The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court, 44 Colum. J. Transnat’l L. 801, 804 (May 9, 2006), available online, archived. ↩

13. 13.

    Id. at 819. ↩

14. 14.

    Hiroyuki Tosa, Global Constitutional Order and the Deviant Other: Reflections on the Dualistic Nature of the ICC Process, 18 IRAP 45, 60 (Dec. 15, 2017), available online, doi. ↩

15. 15.

    Blumenson, supra note 12, at 834. ↩

16. 16.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 53, available online. ↩

17. 17.

    Blumenson, supra note 12, at 821. ↩

18. 18.

    Id. at 819. ↩

19. 19.

    Id. at 825. ↩

20. 20.

    Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics 3 (2009), paywall, doi. ↩

21. 21.

    Id. at 8. ↩

22. 22.

    Blumenson, supra note 12, at 813. ↩

23. 23.

    Id. at 825. ↩

24. 24.

    Id. at 824–25. ↩

25. 25.

    Id. at 820–21. ↩

26. 26.

    Id. at 827. ↩

27. 27.

    Id. at 840. ↩

28. 28.

    Mark Van Hoecke & Werner Krawietz, Western and Non-Western Legal Cultures, in Rechttheorie 197 (Werner Krawietz ed., 2002), paywall. ↩

29. 29.

    Stern, supra note 1, at 92. ↩

30. 30.

    Reinold, supra note 4, at 1081. ↩

31. 31.

    Joanna R. Quinn, Atrocity, Customary Mechanisms and the International Criminal Court: The Case of Uganda, CPSA 10 (Jun. 3, 2006) (Presentation and Working Paper), available online. ↩

32. 32.

    Blumenson, supra note 12, at 841. ↩

33. 33.

    Rome Statute, supra note 16, Art. 53. ↩

34. 34.

    Blumenson, supra note 12, at 813–14. ↩

35. 35.

    Id. at 813.

    (“A prosecutor who wishes to decline an admissible referral based on its deleterious consequences would have to invoke Article 53 of the Rome Statute, which permits the prosecutor to forgo an investigation or prosecution if doing so would not serve the interests of justice.”). ↩

36. 36.

    Quinn, supra note 31, at 14. ↩

37. 37.

    Blumenson, supra note 12, at 816.

    (“There are, however, significant legal questions regarding the extent of the prosecutor’s discretion to decline to prosecute a grave crime within ICC jurisdiction.”). ↩

38. 38.

    Blumenson, supra note 12, at 816. ↩

39. 39.

    Id. at 819. ↩

40. 40.

    Quinn, supra note 31, at 12. ↩

41. 41.

    Id. ↩

42. 42.

    Id.

    (“[Customary laws] have undergone their own troubled history and evolution, and their content may not necessarily be uniformly acceptable to all citizens or communities in the country.”). ↩

43. 43.

    Id. ↩

44. 44.

    Id. ↩

45. 45.

    Id. ↩

46. 46.

    Id. ↩

47. 47.

    See Rome Statute, supra note 16, Art. 53. ↩