Efficiency Lecture Question
In what ways could the ICC’s bureaucracy, finances, judicial election process, and relationship with the States Parties be reformed to increase its efficiency as an instrument for international justice?
Comment on the Efficiency Lecture Question: “In what ways could the ICC’s bureaucracy, finances, judicial election process, and relationship with the States Parties be reformed to increase its efficiency as an instrument for international justice?”
Some Lessons of History
Though Cherif Bassiouni did present a rather western-centric trajectory of international criminal justice and the ICC's legal history, I am trying to distill the useful lessons from his talk on how to move forward with the ICC. In fact, his reliance on European constructions may not be a bias in as much as it is a natural and inescapable by-product of the very western bent of the ICC's character. In any case, there are three interesting ideas that I took away from Bassiouni's talk that I will try to place into conversation with one another to get a better sense of the ICC.
Firstly, Bassiouni said that, in the field of international criminal justice there is a bifurcation: 1) what historically people called international crimes/court crimes/crimes against humanity/genocide. These do not concern the sovereign nation-state's economic well-being or security in a direct manner and hence the wealth and security-promoting nation-state would gain fewer returns from indicting for these crimes and 2) transnational crimes/human trafficking/terrorism/drug trafficking/piracy. These crimes directly concern the sovereign nation-state's economics and security. Also, because the international criminal courts were comprised of these nation-states, rather than the nation-states starting to reflect the interests of the ICC, the ICC began to reflect the interests of the nation-states. This happened when, at a certain point, precursors of the ICC said that killing in general would not be criminalized. Rather, only killing in war would be criminalized. The definition of killing in war-making is reflective of a national legal paradigm where one nation seeks retribution from another nation. Hence, the international community's interests are not elevated and strengthened. Instead, international legal tools were merely used to elevate and strengthen various nation-state interests.
All of this relates to a second point: If the international courts are driven by national interests, we see a retribution model based on victory and defeat in the legal court rather than the genuine deliverance of justice in the real world. International legality becomes more so about furthering power than about elevating the level of the discussion to consider grander humanistic moral hues of the law. This was well-exemplified in Bassiouni's use of how the issue of Japanese comfort women was dismissed because the logic of indicting the emperor for sexual slavery could resuscitate the logic to punish colonizer nations for slavery. Though very different to slaves, pirates and terrorists similarly pose threats to the nation-state; the former are stateless actors on the sea and the latter have a transnational presence.
Thirdly, I would like to talk about how the retribution model plays itself out "in the field" where justice is finally enacted. Bassiouni's "in the field" example was one "in the village" in which a certain person committed a crime against a whole village. However, due to the need to be efficient and realistic in the legal proceedings the partie civile (group of victims represented in the court) was limited to three villagers. Hence, it was not about delivering justice to all the villagers because only three would actually benefit - it was more so about making a winning legal argument that would enable the court to punish. Hence, it was more so a practice in sophistry rather than truthfully seeking justice for all the villagers.
So, how do we reverse this process of the international criminal courts being impeded because the international legal ethos falls prey to the trap of reflecting national interests rather than vice versa? Complimentarity is one of the concepts that Bassiouni discussed that i think has the power to at least beginning the process of reversing the flow of interests such that nation-states reckon with the interests of international legal code and courts alike.
Finally, near the end of his talk Bassiouni touched upon the vision of the growth of a veritable and actionable international law that may hold the same moral authority that various national legal institutions do. He mentioned that this is a very slow process but was optimistic in the sense that it may already be happening. My question to him would be this: is globalization bring us closer to an international community that has commonly shared values or is the global stage ossifying sovereign nation-state interests and paradigms even more?
M. Cherif Bassiouni
Professor of Law
Comment on the Efficiency Lecture Question: “In what ways could the ICC’s bureaucracy, finances, judicial election process, and relationship with the States Parties be reformed to increase its efficiency as an instrument for international justice?”
Some Lessons of History
Though Cherif Bassiouni did present a rather western-centric trajectory of international criminal justice and the ICC's legal history, I am trying to distill the useful lessons from his talk on how to move forward with the ICC. In fact, his reliance on European constructions may not be a bias in as much as it is a natural and inescapable by-product of the very western bent of the ICC's character. In any case, there are three interesting ideas that I took away from Bassiouni's talk that I will try to place into conversation with one another to get a better sense of the ICC.
Firstly, Bassiouni said that, in the field of international criminal justice there is a bifurcation: 1) what historically people called international crimes/court crimes/crimes against humanity/genocide. These do not concern the sovereign nation-state's economic well-being or security in a direct manner and hence the wealth and security-promoting nation-state would gain fewer returns from indicting for these crimes and 2) transnational crimes/human trafficking/terrorism/drug trafficking/piracy. These crimes directly concern the sovereign nation-state's economics and security. Also, because the international criminal courts were comprised of these nation-states, rather than the nation-states starting to reflect the interests of the ICC, the ICC began to reflect the interests of the nation-states. This happened when, at a certain point, precursors of the ICC said that killing in general would not be criminalized. Rather, only killing in war would be criminalized. The definition of killing in war-making is reflective of a national legal paradigm where one nation seeks retribution from another nation. Hence, the international community's interests are not elevated and strengthened. Instead, international legal tools were merely used to elevate and strengthen various nation-state interests.
All of this relates to a second point: If the international courts are driven by national interests, we see a retribution model based on victory and defeat in the legal court rather than the genuine deliverance of justice in the real world. International legality becomes more so about furthering power than about elevating the level of the discussion to consider grander humanistic moral hues of the law. This was well-exemplified in Bassiouni's use of how the issue of Japanese comfort women was dismissed because the logic of indicting the emperor for sexual slavery could resuscitate the logic to punish colonizer nations for slavery. Though very different to slaves, pirates and terrorists similarly pose threats to the nation-state; the former are stateless actors on the sea and the latter have a transnational presence.
Thirdly, I would like to talk about how the retribution model plays itself out "in the field" where justice is finally enacted. Bassiouni's "in the field" example was one "in the village" in which a certain person committed a crime against a whole village. However, due to the need to be efficient and realistic in the legal proceedings the partie civile (group of victims represented in the court) was limited to three villagers. Hence, it was not about delivering justice to all the villagers because only three would actually benefit - it was more so about making a winning legal argument that would enable the court to punish. Hence, it was more so a practice in sophistry rather than truthfully seeking justice for all the villagers.
So, how do we reverse this process of the international criminal courts being impeded because the international legal ethos falls prey to the trap of reflecting national interests rather than vice versa? Complimentarity is one of the concepts that Bassiouni discussed that i think has the power to at least beginning the process of reversing the flow of interests such that nation-states reckon with the interests of international legal code and courts alike.
Finally, near the end of his talk Bassiouni touched upon the vision of the growth of a veritable and actionable international law that may hold the same moral authority that various national legal institutions do. He mentioned that this is a very slow process but was optimistic in the sense that it may already be happening. My question to him would be this: is globalization bring us closer to an international community that has commonly shared values or is the global stage ossifying sovereign nation-state interests and paradigms even more?