1. Introduction
1.1. Purpose of this article
The International Criminal Court (ICC) is surrounded by controversies and criticisms. In this article, rather than engaging in a particular controversy, my aim is to contribute to the conversation at a more global, panoramic level. I aim to point out some recurring structures and patterns in the discourse, and to show that many of the arguments reflect underlying inescapable dyads. For any position the Court can possibly take, perfectly plausible and powerful criticisms can inevitably be made. Awareness of these patterns can give us a more nuanced appreciation of many controversies. In particular it can (i) provide a typology to help situate and understand arguments, (ii) reveal the deeper complexity of the problems, and (iii) help us evaluate and improve upon the arguments.
The tenor of scholarly discourse surrounding the ICC has gone through phases. At an early point, many scholars in international criminal law (ICL) were arguably overly protective of the Court, possibly because they were hesitant to criticize a fledgling institution with powerful detractors. Subsequently, scholars quite rightly started examining the Court more critically, raising important questions and concerns about the Court's operations and decisions. More recently, the critical note has come to dominate the discourse. Today, journal articles, blog postings, and conference presentations feature a variety of increasingly strident criticisms of the Court.
I am not denying that the Court has made errors warranting concern and correction. However, a central point I will make is that the identification of some forms of ‘error’ is not at all as simple as it may seem. Multiple yardsticks are plausibly employed for assessing decisions, based on recognized yet contradictory values. A secondary point is to show that the reliance on different yardsticks is partly obscured by the invocation of the same common terminology. For example, a common charge is that decisions of Court official are ‘political’, but this term is used to advance opposing criticisms. An awareness of the contradictory usages can help put in context the ubiquity of such charges, and help one to disentangle and dissect the arguments.
When I say that the Court ‘cannot win’, I do not mean that the Court cannot succeed in advancing valuable aims. I mean that every option is amenable to credible critique.Footnote 1 Realizing the broader patterns may allow more nuanced assessments when the Court seemingly gets things ‘wrong’ at every turn.
My focus in this article is neither doctrinal nor normative; it is discursive. It is about the discourse. Thinking about patterns and shortcomings in discourse is valuable because doing so can lead to a better conversation that can generate better insights. In the past, I have looked at subtle systematic distortions in reasoning, or at cascade effects in received wisdom, both of which can impede the search for better understandings.Footnote 2 Similarly, inadequate alertness to underlying dyadic tensions can bring debate into fruitless circles or hasty conclusions. With greater awareness of the tensions, we might view the Court's many problems with less despair, assess arguments with more discernment, and advance arguments with more open-mindedness. We would strive to articulate our frameworks of evaluation, which may invigorate the conversation and deepen our ideas about what the system should be trying to achieve. My prescriptions below are all discursive: they are about how we assess and advance arguments. They do not dictate a substantive direction. If you adopt the prescriptions below, you remain free (as do I) to argue to move the ball in one direction or another on any of the controversies surveyed here. We would just do so in a more textured manner.
In the remainder of this introduction, I will sketch out the dyadic structure and illustrate it by looking at reactions to different ICC trigger mechanisms. Then I will discuss: five clarifications of the argument (section 2), five examples of dyadic oppositions (section 3), five attempts to escape the dyads (section 4), and five implications of these observations (section 5).
1.2. Inescapable dyads and the elusiveness of ‘just right’
Consider for a moment the popular folk tale, Goldilocks and The Three Bears.Footnote 3 It offers a recurring pattern, wherein one bowl of porridge is too hot, the next is too cold, and the third is ‘just right’. Similarly, one bed is too hard, the next is too soft, and the third is ‘just right’. Christopher Booker refers to this pattern as the ‘dialectical three’, where ‘the first is wrong in one way, the second in another or opposite way, and only the third, in the middle, is just right’, highlighting the important theme of ‘finding an exact middle path between opposites’.Footnote 4 The Goldilocks principle is referenced in some sciences.Footnote 5 Goldilocks’ tastes were presaged by Aristotle, who argued that virtue lies in finding the golden mean, ‘a mean between two vices, that which depends on excess and that which depends on defect’.Footnote 6
As one reads the literature on the activities of the ICC (situation selection, case selection, trigger mechanisms, cooperation, and so on), a recurring lament is that the ICC keeps failing to get its metaphorical porridge ‘just right’. This repeated failure on the part of Court officials is commonly ascribed to short-sightedness, incompetence, politicization, or naiveté.Footnote 7 However, what I will suggest is that on many issues facing the ICC, there is simply no such thing as ‘just right’, i.e. there is no position that cannot plausibly be criticized as either ‘too hot’ or ‘too cold’. Indeed, many positions can be credibly criticized as both ‘too hot’ and ‘too cold’, which may sound paradoxical, but I will show below that it is not. Thus, while many Court-watchers wait with growing frustration for a Goldilocks solution, the Court's situation is actually more like Catch-22.Footnote 8
Many fault lines and contradictory expectations underlie the Court's work. In this article, I will focus on just one of the fault lines: apologia versus utopia. In Martti Koskenniemi's masterful dissection of the structure of international legal arguments, he shows that any given legal argument is always vulnerable to at least one of two criticisms: apologia or utopia.Footnote 9 An ‘apologia’ critique is that one is adhering too closely to the policies and interests of states. One is merely reflecting power and thus one's position lacks normativity; one cannot challenge the status quo. A ‘utopia’ critique is that one is too divorced from the policies and interests of states. Thus one is lacking in social or political consent or support; one is attempting to impose one's own vision. A commonly-associated connotation is that, being too unconnected to power, one lacks effectiveness, making the initiative impractical or even harmful.
The inescapability of these critiques flows from the nature of law.Footnote 10 Law claims to be something different from philosophy because of its concreteness: it is rooted in the will of legitimate authorities expressed through identifiable sources. And yet law also claims to be more than a description of the latest commands of the powerful; it claims to be normative. Because law claims to be both normative and socially grounded, any given argument can be criticized as either uninspiring politics or ungrounded philosophy. Thus legal argument is in constant movement, oscillating in attempts to avoid these opposing criticisms.Footnote 11
The crucially important point is that there is no magic ‘in-between’ point that is safe from these salient criticisms. There is no point of irreproachable ‘balance’.Footnote 12 As Koskenniemi writes, ‘Any doctrine, argument or position can be criticized [as] either utopian or apologist. The more it tries to escape from one, the deeper it sinks into the other.’Footnote 13 Thus any position ‘seems constantly vulnerable to justifiable counter-arguments’.Footnote 14 The tension is inherent in the enterprise of law, which claims to constrain power and yet which also reflects and depends upon power.
While the tensions are inherent in law and international law, they are magnified in international criminal law. The embryonic, ambitious project of introducing and solidifying a criminal law system on an international plane brings out these often-latent tensions in a raw and visceral way. They are further magnified in the work of the ICC: I will elaborate in section 2 on some controversy-intensifying challenges facing the ICC.
There are three things to note about these terms. First, apologia and utopia are not names of ‘camps’ or positions, but rather of lines of criticism. Thus, a ‘utopia critique’ does not mean that the speaker is utopian; it means that the speaker criticizes the ICC decision as utopian. Second, the focus of this article differs from the focus of Koskenniemi's From Apology to Utopia,Footnote 15 but the overlap is sufficient to make use of the terms profitable (and indeed it would be strange not to use them). Third, the terms are not synonyms for ‘cynical’ and ‘idealistic’. A utopia critique may of course ascribe a decision to naïve moralism. But a utopia critique could also ascribe more cynical motives, by asserting that Court officials are ignoring practical considerations because of their selfish focus on advancing their own profileFootnote 16 or the profile of their institution.Footnote 17 Internal motivation is not the demarcation line between the two types of criticism; the demarcation line is the assertion of excessive proximity to or distance from state policies and preferences.
An apologia critique, that one is too close, entails that one is lacking in normativity, i.e. principled independence, critical bite, faithfulness to higher principles. Conversely, the utopia critique, that one is too removed, entails that one is lacking in groundedness, i.e. political or social legitimacy (consent, invitation), and practical effectiveness. The apology critique describes a decision as unprincipled, unambitious, or uninspiring. The utopia critique describes a decision as unanchored, unsupported, unwise, unrealistic, or unhelpful. Yet, as will be explored below, there are surprising linguistic symmetries, so that these opposing critiques are often expressed in the same powerful terms (politicization, legitimacy, mandate, credibility, interests of victims).Footnote 18
1.3. Illustration: The no-win scenario of trigger mechanisms
These themes frequently animate ICC discourse. As an illustration, consider the three ‘trigger mechanisms’ in the ICC Statute. The Statute provides three possibilities to trigger an investigation: a referral from a state party, a referral from the Security Council, or a proprio motu initiation by the Prosecutor.Footnote 19
Let us start with state party referrals. So far, state parties have referred to the Court situations occurring on their own territory.Footnote 20 Such referrals (‘self-referrals’, ‘territorial state referrals’) have been met with strong apologia criticisms: the referring state is motivated by its own political interests and thus the Court is being used as a tool; the territorial state is too close to the situation; and the referrals are presumed to be accompanied by secret or implied ‘side agreements’, or at least a risk of collusion – that the ICC will serve the interests of the state which is one party to the conflict.Footnote 21
If a referral from a source too close to the conflict is considered problematic, then one might suppose that a referral from the UN Security Council, which is more distant, will be welcomed. Alas, Security Council referrals have also been widely subjected to apologia critiques, now arrayed differently: they take on a North-South dimension. The common criticism is that the ICC is acting as a servant of the ‘permanent five’, or a tool of powerful Western countries, undermining its legitimacy.Footnote 22 Alternatively, a plausible variation is to make a utopia critique of UN Security Council referrals. Under this variation, the Security Council members make referrals only as an ‘alternative to action’, without providing any real support. Thus the ICC is intervening without international or local support, it will be ineffective, it will raise hopes that will be disappointed, and it will muddy the waters of other important processes.Footnote 23
Surely then, one might think, the ‘just right’ mechanism must be the only remaining option: proprio motu initiation. If referrals from external political actors are problematic, then the solution must presumably be initiation without an external referral. Alas, proprio motu initiation is also met with powerful criticisms, usually utopia criticisms. The ICC is inserting itself without invitation and without support; it is an unwelcome foreign intervention lacking local political legitimacy; it is therefore likely to be ineffective or even do more harm than good.Footnote 24
Thus, for any trigger mechanism, there are perfectly salient criticisms that can be made. Notice that, at least in isolation, the argument against each trigger mechanism is quite compelling. Notice also how opposites – support or the absence of support, closeness, or distance – can each be convincingly portrayed as either virtues or as sins. Being invited is quite plausibly said to reduce legitimacy, but being uninvited is also quite plausibly said to reduce legitimacy.Footnote 25 Every way of activating the Court is problematic in some sense. The Court cannot even escape by not using the triggers. A failure to use the proprio motu power is seen as a sign of timid catering to states (apologia),Footnote 26 and a failure to receive referrals is seen as a sign of marginalization and ineffectiveness (utopia).Footnote 27
You might think you could escape the conundrum, because you have counter-arguments to these criticisms.Footnote 28 In response to the apologia critiques, you might argue that it is a fallacy to leap from the state having political motivations to the ICC having political motives. Indeed, the International Court of Justice has always held that political motives of triggering entities do not prevent it from carrying out its juridical function.Footnote 29 In response to the utopia critiques, you might argue that ICC interventions are rooted in political consent; for example, a state party consents in advance to the possibility of proprio motu action.Footnote 30 However, while you may be able to mitigate the concerns, you cannot remove them. Indeed, such arguments have had negligible impact to date; they have been unable to compete with more dramatic narratives that the Court is pandering to states and/or trammelling over them. Moreover, there will always remain a spectrum for legitimate disagreement about where the ‘right’ balance lies.
As this example showed, apologia/utopia critiques can focus on different sites of power. Commentary usually focuses on the Court's relationship with territorial states (currently, states in Africa) or with the most influential states (such as the P-3 or P-5).Footnote 31 As we will see below, the Court is routinely criticized at both levels from both directions. With respect to territorial states, the Court is criticized both for being too deferential and not deferential enough. With respect to the most powerful states, the Court is routinely criticized both for reflecting their agendas and for disrupting their agendas.Footnote 32
2. Five clarifications
Having given you a sense of my core point with that illustration, I will now step back for a moment to give five important clarifications of the aim and subject of this article. I have shared and discussed these ideas with many readers and audiences, and have learned a lot in doing so. For many, the discussion triggers an ‘aha moment’: one has seen all the criticisms but one has not quite recognized the patterns or their implications. Experience has also taught that there are many ways to misunderstand my points, which is quite understandable given the unusual focus of this article (a panoramic look at structures of argument in some of our most sensitive controversies).
First, my purpose in exploring dyads is not to minimize or dismiss criticisms of the Court. In this article, I am not passing judgment on any particular examples. I am simply arraying the criticisms side by side to reveal the broader patterns and thereby to illuminate some of the challenges of the Court. The main objective here is primarily descriptive, albeit descriptive of something rather abstract and not immediately easy to see: the structures of our discussion.
This descriptive task does of course have critical implications. Your reaction, once you see the dyadic criticisms laid side by side, may be to conclude that opposite criticisms cannot both be right, and you might re-examine each of them more searchingly. My aim certainly includes provoking that kind of critical thinking. But when I list an example here, it does not necessarily mean that I disagree with it. On the contrary, I have sympathy for many of them. It is the strengths, not the weaknesses, of the arguments that make the dyadic contrasts so interesting. Indeed, it will often be the case that each opposite criticism has significant merit.
How is it possible that opposite criticisms can both be described as plausible? The reason is that each side of the dyad is based in values that can be credibly regarded as values underlying international criminal justice. The ICC has a contradictory assignment. International justice can be expected to be engaged and detached, respectful and pugnacious, constructive and disruptive. It is always possible to berate it for breaching one of its contradictory expectations.Footnote 33
None of the examples presented here are ‘extreme’ views in ICL. The arguments canvassed here are mainstays of the field, frequently heard in the halls of the ICC, on the floor of the Assembly of States Parties, and at academic conferences. Most of the examples are drawn from journal articles and books. As this article is about international criminal law discourse generally, I have also included a few major NGO reports, media articles, and blog postings, where they vividly encapsulate a particular motif. Every argument presented here has, at minimum, facial credibility.
Second, you may wonder why I am so interested in merely ‘credible’ criticisms. You may wonder why I do not delve more into the substantive merits of the arguments to declare some right and some wrong (particularly the ones you most passionately disagree with). You might wonder whether that the seeming contradictions could be resolved simply by clearing away the ‘wrong’ arguments, leaving only the correct path remaining.
I agree that some criticisms reflect demonstrable errors and misunderstandings. However, even after we clear those up, there will still remain a zone of dyadic tension, such that credible criticisms can still be made of any decision. I will argue below that if one wants to press further, to try to identify the ‘right’ or ‘optimal’ solutions, then one would have to articulate a framework of evaluation for making such assessments (Section 5). And any such framework itself will be amenable to apologia-utopia critiques.
The potential plausibility of opposite arguments is central to what I am discussing here. In this article, I will speak of ‘plausible’, ‘credible’, and ‘understandable’ arguments, meaning that they have at least prima facie weight because they are rooted in recognized values.Footnote 34 I am highlighting the additional questions we need to ask when we encounter plausible arguments. My topic here is not the final ‘answers’, but rather our thinking and argumentation as we strive to find answers. The substantive debate about the means and ends of ICL will continue for as long as the field exists. Any such discussion will require, at minimum, an appreciation of the contradictory plausible expectations of the system.
Third, the dyads presented here are not reducible to the truism ‘you can't please everyone’. It is true that the different criticisms often come from different communities with different commitments and assumptions. In those instances, the dyads remain useful as a taxonomic framework to map out conflicting prescriptions. But more interesting still is that the apologia-utopia criticisms are both freely employed by the same communities and indeed by the same scholars. Thus, for example, a single scholar can plausibly criticize the Prosecutor for failing to use the proprio motu power, and then criticize the power once it is used, and both arguments can nonetheless have a real, recognizable merit to them. A single report can criticize the Court for too much engagement with state officials and for inadequate engagement. It is not just that you cannot please everyone, but rather that the Court has a fundamentally contradictory assignment. It is understandably expected to be ideal (normative, aloof, transcendental) and to be real (grounded, engaged, effective). The Court is expected to be ‘in the world but not of it’. At every juncture, it can be credibly argued that it breached at least one of these expectations.
Moreover, even where it is a matter of different communities with differing visions, I want to draw attention to how the common vocabulary can obscure those differing visions, and make it seem instead that there are uncontroversial qualities which the ICC is failing to meet. A roomful of people may nod in vigorous agreement with the proposition that ‘the ICC is too political’, ‘the ICC has undermined its legitimacy’, or ‘the ICC is not paying enough attention to interests of victims’, and yet they may have opposite understandings of those terms, along with precisely opposite concerns and opposite prescriptions. Thus, a seeming consensus may mask completely opposite dissatisfactions. If one is aware of these patterns, one will be less surprised when such propositions become widely espoused (given that they can mean everything to everyone). Rather than assuming consensus, one will inspect the arguments more carefully to see exactly which type they are.
The fourth and most challenging reaction is, ‘Aren't you making things too easy for the Court? After all, if every criticism is arguable, then none of them really “stick”’. You could read this article as advancing a form of nihilism, which could license Court officials to disregard criticisms. Alternatively, you could read this article as a counsel of despair: if the Court is doomed to face plausible criticism whatever it does, you may worry that I am engendering a form of ‘learned helplessness’.
My response to both variations is that I have not ‘made’ anything easy or difficult for anyone. I am merely pointing out the patterns underlying what is already happening. As I will try to show, there is no ‘safe’ balance that avoids credible counter-argument. This is not a trick or an argumentative device. It is a fact about ICL discourse that we need to absorb if we are to make progress in understanding the field. Rather than making things easy for the Court, I am exposing how profoundly difficult they are. My question below will be what we should learn from this.
To foreshadow my thoughts about implications, the lesson is not that critics should stop criticizing, nor that ICC officials should stop trying to find the ‘right’ or ‘best’ approaches. I think that appreciation of the contradictions should lead to a more textured conversation, with awareness that these are multidimensional problems for which all responses are ‘flawed’ in some sense, and that we have a complex task of deciding how to choose among imperfect options.
Fifth, stepping back, you could ask whether my observations are about law, ICL, or the ICC, and why I see the tensions as intensified for the ICC. As I mentioned briefly above, these fault lines are inherent in international law and even in law generally. They are particularly evident in international criminal law, which seeks to create a vertical regime on a horizontal plane, a system of legal coercion among actors accustomed to a more consensual regime. The ICC in particular operates in contexts that magnify these tensions further still. I will give two examples of these tension-intensifiers: the overload of demand and the special challenges of pre-transitional justice.
One intensifier is the disparity between the Court's resources and the number of crimes falling within its potential jurisdiction. It was once widely thought that ratifications from countries with crimes in their territorial jurisdiction would be rare. This assumption (which we could call ‘the assumption of aversion’) led to understandable predictions of a ‘Court without cases’. Instead, of course, the ICC Statute has been ratified by many countries – including those experiencing crimes – and several referrals have been received from states parties and the Security Council. Instead of a court with no load, we have a court with an overload. It is one institution, flooded with requests from victims, states, and the UN Security Council (in the form of communications and referrals), which has already carried out investigations in eight situations, with several more situations of potential jurisdiction clamouring for attention. This overload magnifies the problem of choice. On a per-situation basis, the ICC has a small fraction of the resources that were available to previous institutions.Footnote 35 Accordingly, the ICC must not only select situations, but within each situation it has to be even more selective than past institutions. Each choice is open to controversy and claims of politicization.
Another intensifier is the problem of what we can call ‘pre-transitional justice’. In the global experience with mass atrocity prior to the Rome Conference, the two major options were to allow impunity or to attempt some form of transitional justice. By ‘transitional justice’ I mean that there has been a transition from violence and the governing regime faces the question of how to respond to a legacy of mass crimes. In prior experience, the territory was more or less under control, either by a new regime or by international forces.Footnote 36 However, the ICC Statute created an institution that would be available at the outset of violence. Indeed, one of the arguments for a permanent court was to avoid the start-up delays of ad hoc tribunals. A standing institution may start its work while the conflict is still raging, which is a new and challenging context. It is not transitional justice, because there has not yet been a transition from violence to relative order. The hallmarks of pre-transitional justice are that the territories are not under control, the perpetrators are protected by armies, and police powers are unavailable. Furthermore, there are generally multiple international actors operating in that same space with differing agendas, concerning peace processes, humanitarian aid, democratization, and demobilization. The reality of pre-transitional justice intensifies two problems: the problem of power (how to carry out investigations in a war zone) and the problem of co-ordination (how to interact with other initiatives). As will be discussed below, these contexts expose and intensify tensions of independence versus dependence, coercion versus consensus, and effectiveness versus legitimacy.
3. Five examples of dyads
I opened by exploring the discourse around trigger mechanisms and showing how every option is susceptible to plausible apologia-utopia critiques. We can now survey five examples of recurring oppositions. You may quite rightly start to see many other ways in which linguistic malleability and value-plurality underlie many other controversies. Here I am merely exploring one single fault line (apology-utopia), and five dyads that illustrate that tension. There are of course many other tensions and many other illustrations. Many of my examples focus on decisions of the Prosecutor, as these tend to attract the most comment, but the contradictory expectations permeate the work of the whole institution.Footnote 37
3.1. Too high/too low (selection)
Consider situation selection. Imagine that you have a role in selecting situations (either as Prosecutor or as Pre-Trial Chamber). For any choice you make, people can advance powerful counter-arguments, and they can plausibly describe your decision as ‘political’. Importantly, you cannot disprove the politicization hypothesis, because there is no course of action you can take that is incompatible with some claim of politicization. It is a non-falsifiable hypothesis.
Take for example the Palestine situation. If you conclude that you do not have jurisdiction and say ‘no’ to the situation, people can plausibly argue, ‘Aha – this proves that you are political. You obviously distorted your analysis because you are afraid to displease the USA.’Footnote 38 It is an apologia critique. On the other hand, if you conclude you do have jurisdiction and you say ‘yes’ to the situation, people can plausibly argue, ‘Aha – this proves that you are political. You obviously distorted your analysis to go after a high-profile state.’Footnote 39 It is a utopia critique.
Or consider case selection within a situation. It has been plausibly argued that Court has erred by failing to go after ‘big fish’.Footnote 40 It has also been plausibly argued that the Court has erred by focusing too much on ‘big fish’, rather than manageable cases.Footnote 41 As a Prosecutor, your cases can almost always be described as reaching ‘too low’ (unless you indict a president, and even then it can be argued you should have indicted a president from a bigger country): you are obviously being timid because your political calculations are steering you away from powerful actors.Footnote 42 At the same time, your cases can also usually be described as reaching ‘too high’: your grandstanding and myopic pursuit of your own narrow agenda is disrupting peace and other important initiatives.Footnote 43
Notice here the versatility of the common vocabulary. Regardless of which choice you make, it can convincingly be portrayed as ‘political’. You are either (i) ‘political’ because you are acting on the presumed wishes of states (apologia), or (ii) ‘political’ because you are not acting on the presumed wishes of states (utopia). Similarly, you are either (i) ‘political’ because you are too concerned about external consequences, or (ii) ‘political’ because you are insufficiently concerned about external consequences.Footnote 44 Thus, one can base arguments in the ‘upstream’ effect (influences on the decision) or on the ‘downstream’ effect (consequences of the decision), and argue either one from an apologia or utopia angle. Each accusation is plausible on its face, because each relies on a plausible model of the international prosecutor.
Thus, it should not be surprising that the discourse frequently decries the Court's decisions as ‘political’, given that the term ‘political’ is employed in a multitude of ways, including precisely opposite ways. The epithet is literally inescapable. Because of the term's different meanings, it can be applied with plausibility to any conceivable decision. When we realize this, we see that we must disentangle the different (and often opposite) meanings in order to truly appreciate the arguments.
A recurring concern in current literature is that the ICC Office of the Prosecutor (OTP) has not yet charged officials of powerful states or of referring states.Footnote 45 The OTP response is that such officials have not yet met the requisite criteria for selection (jurisdiction, gravity, complementarity). It is not possible to adequately address the arguments here, because analysis would require careful dissection of facts and selection criteria, which must wait for another occasion. For the purpose of exploring dyads, it suffices for now to offer a narrower point. Namely, a problem arises for any prosecutor when powerful persons do not meet the relevant criteria for selection.Footnote 46 If you don't charge the powerful persons, then you are vulnerable to lingering suspicion that you let them off because of power (apologia). If you do charge them, you are vulnerable to suspicion that you altered the benchmarks to prove a point (utopia).Footnote 47 So the Catch-22 in such scenarios is that, in order to ‘prove’ your impartiality, you must compromise your impartiality. This points to another seeming tension, between appearing impartial and being impartial, especially in so far as ‘appearing impartial’ is commonly but superficially associated with prosecuting all groups. There is a tension between applying uniform standards and achieving uniform outcomes, because the crimes of some groups may not meet the relevant threshold.Footnote 48 These problems are magnified for the ICC because of the disparity between its jurisdictional reach and its resources. On any reasonable set of selection criteria, persons from some groups (including well-connected groups) will be responsible for real crimes and yet not warrant selection for prosecution.
A common reaction is that you could escape or blunt such concerns by publishing your legal reasoning. However, your stated analysis and reasons can be very easily dismissed as a mere superficial cover for your presumed political (cravenly timid or self-aggrandizingly overreaching) choice.Footnote 49
The apologia/utopia dyad permeates even small and seemingly technical policy decisions or interpretive choices. For example, consider the criteria for case selection: should ‘feasibility of arrest’ be one of the factors?Footnote 50 If you say ‘yes’, then an apologia critique arises: your position benefits the powerful since they are more difficult to arrest. If you say ‘no’, then a utopia critique arises: you are endorsing the investment of resources into investigations that you know are likely to be ineffective. And, because you could have used those investigative resources for a feasible case, you are likely to have one fewer executed warrant and one more unexecuted warrant, fuelling claims that your institution is a ‘paper tiger’. Whichever choice you make, one of these perfectly salient and quite powerful critiques is available. You cannot choose to solve both problems. You can only choose which forms of perfectly plausible criticism will be applied to your decision.
3.2. Too hard/too easy (operations)
Another recurring pattern is the ‘too hard/too easy’ dyad. The first critique is that you are naïvely and unrealistically attempting something too likely to fail, and your overreach is likely to do harm to the project (because of the resulting loss of credibility) or harm to other interests. This is a utopia critique. Conversely, the ‘too easy’ critique is that you are doing what is politically expedient, you are going after ‘low-hanging fruit’, and you are failing to fulfil the true ambitions of the project. This is an apologia critique. As for the linguistic dimension, the symmetry is that both arguments accuse you of jeopardizing the mandate and loss of credibility either because of your credibility-risking overreach or your credibility-risking underreach.
The ‘too hard’ critique is generally strongest as an ex ante criticism, launched before something is attempted. Once the endeavour is successfully completed, it appears with hindsight bias to be not only possible but indeed somewhat inevitable and hence unremarkable. Thus the ‘too easy’ critique is generally strongest ex post.Footnote 51
Consider, for example, the ICC's investigation in Ituri. The Prosecutor identified Ituri as a priority very early on, because of the scale and severity of the crimes occurring there.Footnote 52 Prominent commentators noted the extreme difficulty of this environment, the scale of the crimes, the lack of control of territory, the collapse of the government, and the involvement of neighbouring states.Footnote 53 They warned that ‘the state of chaos and insecurity and the prevalence of land mines in Ituri force a de facto deferral. It is difficult, if not impossible, for the Office of the Prosecutor to conduct any meaningful investigation on the ground or to have access to any accused.’Footnote 54 They also warned of the severe consequences of failure: ‘the ICC, if it fails, will engender severe, indeed intolerable, costs, not simply for the ICC as an institution, but for the larger objectives of international criminal law’.Footnote 55 I quote this argument not to disagree with it (it was indeed a perfectly defensible argument), but rather to show an archetypal example of the ‘too hard’ (utopia) critique.
As it happened, the ICC managed to carry out several investigations in Ituri and to secure arrests, despite the obstacles noted in the previous critique. At which point, the opposite criticism arose, that Ituri was too easy: ‘It is therefore unclear whether the ICC can adequately justify its involvement in Ituri . . . Ituri is easy for the ICC,’ one foreign diplomat in Kinshasa told the author. ‘MONUC have all the information on cases there. The dossiers are ready to go. Did we really fight all those political and legal battles to create the ICC only to have it try the easiest cases?’Footnote 56
This is a beautifully stated example of the opposite argument: the ICC is being too conservative taking easy situations like Ituri and thus failing to live up to the true vision and mandate of the Court. Again, without taking sides on the merits, I am simply noting the overlapping availability of two convincing yet opposing criticisms. An observer exposed to only one or the other argument would have good reason to be worried about the Court's foolish brazenness or, alternatively, its disappointing cautiousness. Exposure to both, however, might lead one to reflect on these binary patterns of criticism.
3.3. Too soon/too late (interests of victims)
If you commence investigations while a conflict is underway, then powerful arguments can be made that you should not be intervening in a volatile situation while others are still trying to stabilize it (utopia critique).Footnote 57 However, if you choose not to intervene while conflict is ongoing, then you are turning your back on victims who have a right to justice (apologia critique).Footnote 58 Again there is linguistic symmetry between the two poles: either way, your position can plausibly be characterized as disregarding the interests of victims. Either you are neglecting their practical interests (security) because of your haste, or else you are neglecting their moral interests (affirmation of rights) because of your tardiness.
3.4. Too close/too far (co-operation)
Co-operation brings vividly to the fore a number of contradictory expectations. The above-mentioned difficulties of pre-transitional justice (investigating during ongoing conflict) magnify the tensions underlying ICL and indeed law itself. A major purpose of law is to constrain power, and yet law requires power to be enforced. The tension may be less evident in domestic settings, where the idea of law is internalized and there is a stronger habit of compliance by the powerful and by state agents. But the tension exists all the same.Footnote 59
This leads to the dyad of independence and dependence. Legally, the ICC is independent,Footnote 60 and indeed its juridical legitimacy hinges on that independence. Yet the ICC is also, factually, utterly dependent. It cannot achieve anything without support. The point is encapsulated in Antonio Cassese's famous analogy that an international tribunal is like a ‘giant with no arms and legs’.Footnote 61 It needs constructive relations with partners to maintain the flow of support in order to be effective.
Legal independence and factual dependence gives us the dyad of ‘too close’ and ‘too far’. ‘Too close’ is an apologia critique: too much contact with states leads to fears about erosion of independence, secret ‘side agreements’, or at least of the temptation to alter case selection to reflect the presumed wishes of the partner. ‘Too far’ is a utopia critique: you are not doing enough to maintain relations with partners and thus undermining your effectiveness.
A related tension is that between the expectations of an international law institution and a criminal law institution. Consider for example the Court's stance toward the states on whose territories it seeks to operate. Under international law, the government of the territorial state is in principle the legitimate, lawful authority on its territory. To investigate on a state's territory, one needs some form of consent, not only as a practical requirement but also as a requirement for legitimacy in the traditional sovereignty-based international law framework.Footnote 62 The usages of international law require respect for the territorial state. On the other hand, from a criminal law perspective, governmental officials are also potential targets of investigation. The usages of criminal law require detachment, distance and avoidance of inappropriate contact with potential suspects. Thus, the ICC – which is both international and criminal – can always be credibly condemned for showing either inadequate respect (breaching the ethic of an international law institution) or too much respect (breaching the ethic of a criminal law institution).
You might be considering ways out of this paradox. One way is to argue that there is no contradiction because, as a matter of legal form, the ICC can issue orders for co-operation and thus does not need to build relations.Footnote 63 However, there are two difficulties with that view. ICL is embryonic and the habit of compliance is still being cultivated (which requires engagement to build up a track record of compliance). Furthermore, Part IX of the Statute is a limited regime; even a government that is not hostile, but simply a typical indifferent and defensive bureaucracy, has ample avenues to limit its co-operation. Effective investigations require co-operation going far beyond the basic obligations of Part IX.Footnote 64 Thus engagement with officials is required.
The second way one might hope to avoid these problems is by striking the ‘just right’ balance. Presumably any prosecutor would want to strike a balance between the unfortunate extremes of subservience and isolation. An obvious intermediate position would be to pursue co-operation but to explain throughout that co-operation does not influence case selection.Footnote 65 While I happen to think such an approach is sound, my aim here is simply to point out that this middle ground remains vulnerable to quite credible challenges coming from both sides of the dyad. Seeing the ICC's contacts with the authorities, people can (and do) still understandably fear some behind-the-scenes collusion.Footnote 66 And when a state official says something unsupportive of the Court, or if it seems that the Court is not getting enough evidence and assistance or is ‘out of the loop’, the Court can still be (and is) chided for not having forged better relations.Footnote 67
The too close/too far dyad means that the ICC (and the OTP in particular) can be plausibly criticized as ‘too far’ from state authorities –‘needlessly confrontational’Footnote 68 not displaying sufficient ‘political and diplomatic savvy’Footnote 69 ‘famously combative’Footnote 70 needing to abandon its ‘confrontational stance’Footnote 71 and simultaneously plausibly criticized as ‘too close’ to state authorities, not being bold enough, and handling them with ‘velvet gloves’,Footnote 72 with extensive contacts and co-operation being frequently regarded as indicative that one's impartiality must be compromised.Footnote 73
As a more concrete example, consider the controversy that arose as a result of a diplomatic note sent from the ICC OTP to the Côte d’Ivoire during a changeover of officials within the country and in the ICC. The note was a reminder of the co-operative relationship (extending sincere congratulations and gratitude for support and expecting continued fruitful co-operation).Footnote 74 When the note became public, the warm and courteous language was widely perceived as ‘indicative of collusion’ between the OTP and the government, and as a failure on the part of the OTP to appreciate the principle of impartiality.Footnote 75 However, there is another way to look at it. From a different lens, the lens of international co-operation, the language used was standard in international communications. Consider that even the diplomatic note by which Germany declared war on the United States of America still offered ‘the expression of my high consideration’.Footnote 76 From a co-operation viewpoint, the Court could be criticized if it failed to maintain periodic contact, particularly in a time of turnover, in order to ‘stay on the radar’ and to remind relevant officials of their obligations. And indeed, the Court has also been criticized for not doing enough to acknowledge partners for their co-operation and maintain relationships.Footnote 77
Again, a prosecutor might search for some other ‘just right’ balance, perhaps by corresponding only in cold and perfunctory tones. But any intermediate position remains vulnerable to critique from both sides.Footnote 78 Any possible stance can be plausibly criticized as either failing to maintain distance from potential suspects or as failing to maintain closeness with the relevant authorities. This is a product of the simultaneously international and criminal character of the enterprise.
3.5. Too deferential/too imperious (co-ordination)
As mentioned in section 2 above, during pre-transitional justice there will often be many other actors engaged in many important initiatives in the situation. What posture should the ICC adopt in the face of other sensitive initiatives? Should it back away? Should it moderate its activities? Should it proceed unabated? Each of these options is open to credible criticism, as either apologist or utopian.
The ‘too deferential’ critique is an ‘apologia’ critique you are improperly and inappropriately sacrificing and subordinating your mandate to considerations other than criminal justice. This critique adopts a formalistic vision, based on an idealized national prosecutor. On the starkest versions of this model, the pursuit of criminal law has supremacy over all other considerations (fiat justitia ruat caelum). For a prosecutor to even consider an interest other than justice constitutes ‘politicization’ and results in a loss of legitimacy.
Conversely, the ‘too imperious’ critique is a ‘utopia’ critique. Its objection is precisely the opposite: that you are failing to consider competing interests. You are intervening in a situation, upsetting other important initiatives, and not adequately listening to and accommodating the views and concerns of other actors. This critique also accuses you of ‘politicization’, but now it is because you are trying to inject your mandate and agenda into the situation above all other considerations.Footnote 79
Notice again that the international prosecutor can always be labelled as ‘political’, either because she is willing to moderate the pursuit of her mandate for other interests, or because she is not. We also see again the tension between ‘international’ and ‘criminal’ institutional expectations. One can always object that the ICC is not acting as a criminal law institution should (i.e. focusing exclusively on criminal justice), or that the ICC is not acting as an international law institution should (i.e. accommodating other community interests).Footnote 80 The ICC must always fail to fully reflect at least one of these paradigms.
Again, might there be an intermediate position that gives the ‘just right’ amount of accommodation to other values? There are certainly many points along a spectrum that one could adopt. As one example, consider the intermediate position adopted by the ICC OTP in the early days of the Uganda investigations, in which there were calls to suspend the investigation in light of the peace process. The OTP position was that (i) it would carry out its mandate, but that (ii) it would manage its timing and profile to avoid unnecessary disruption to other initiatives, and (iii) it would consider suspending the investigation if there was a demonstrable success in the peace process. Like any intermediate position, this position was open to plausible criticisms from both directions. To those for whom justice is clearly the paramount value, it was utterly inappropriate for a criminal law body to even be collecting information on or adapting to ‘political’ processes such as peace talks, or to be considering deferral (apologia critique).Footnote 81 To those for whom peace is clearly the paramount value, the OTP's caveats were clearly inadequate, because the OTP was nonetheless intervening and thereby endangering the process.Footnote 82 There are many possible intermediate positions as to how much ICL should or should not accommodate other interests, but each is amenable to perfectly plausible criticism.
As a final illustration, consider the rhetorical or persuasive strategies that a court might use to build support. In order to help build up a track record and habit of compliance with a fledgling system, one might point out practical, moral, political, or reputational reasons to support the Court, such as possible benefits for ‘peace, security and well-being’, the prevention of crime, or bolstering the rule of law.Footnote 83 However, such an approach can plausibly be criticized as too sullied by its appeal to political interests, and too focused on the hoped-for instrumental benefits of the Court. Thus, to avoid those pitfalls, one might make a more formalistic and legalistic appeal. For example, the prosecutors of several international institutions issued a declaration stating that ‘it is no longer about whether individuals agree or disagree with the pursuit of justice in political, moral, or practical terms; now, it is the law.’Footnote 84 This second strategy avoids the criticism of catering to other political values, but it is open to utopia critiques. It can be described as narrow and demotivating, precisely because it fails to engage in the political, social, and practical dimensions. It can also be described as arrogant and imperious, because one is purporting to speak on behalf of law and to override important interests. The ‘it is the law’ motif has been parodied with a quote from Judge Dredd: ‘I am the law’.Footnote 85 That paraphrase perfectly captures the utopia critique of this justificatory strategy: it can be seen as a presumptuous, top-down and ultimately un-engaging. Any justificatory strategy for the Court will inescapably be vulnerable to credible utopia or apologia criticisms or both.
4. Five attempts to escape the dyads
An understandable reaction to the foregoing is to try to ‘solve’ or escape these dilemmas. I will address here the five most popular strategies.
First, the most natural thought is that one can avoid these problems by taking a middle course, seeking the ‘just right’ balance between the competing values. As I have tried to show, there is no intermediate ‘balance’, no ‘just right’ that can satisfy the contradictory values. The zones prohibited by the two poles cover all positions and overlap considerably. Thus, even the most thoughtful attempt at ‘balance’ will be amenable to perfectly sustainable, plausible criticisms from both directions.Footnote 86
Second, you might hope to escape these dilemmas through more transparency and explanation. I have alluded briefly to this already in the discussion of ‘too high’/‘too low’ (section 3.1). Transparency may offer many benefits, but escape from the dyads is not one of them. Transparency may help increase predictability and reduce outright misunderstandings (and thus may reduce those criticisms based in misunderstanding or unfamiliarity). But even if one's approach is explained with perfect clarity, that approach will still be subject to legitimate apologia and utopia critiques.
Third, one could hope that if we strip away the flawed criticisms, we can get to the ‘right’ position. However, even if we pare away the unsubstantiated or misconceived arguments, there will remain an inescapable residuum of reasonable criticisms on each side, each employing different widely-accepted evaluative strategies.Footnote 87
A fourth strategy is what one could call ‘acoustic balancing’. This strategy accepts the inevitability of sustainable criticism. It simply seeks out a position whereby the criticisms on either side are roughly ‘equalized’. This approach may have some appeal as a very rough heuristic, but I would not suggest it as a normative prescription, because equalizing criticisms is not per se the purpose of the Court.Footnote 88
A fifth strategy is to try to reach a broad agreement as to how and where to strike the balance between values. This solution is feasible to a limited extent. It is conceivable with respect to particular problems, but for a more general formula it is daunting to imagine the vocabulary and methods of measurement that would have to be developed. Most importantly, any consensus reached by a given set of participants will still itself be amenable to external criticism as being too apologist or utopian. Moreover, at a deep level, some contradictions are hardwired into the enterprise of law (it is descriptive and prescriptive, it is replicative and transformative, it straddles ‘is’ and ‘ought’) and thus will not be eradicated.Footnote 89
5. Five implications
My aim in the previous sections was primarily descriptive: to expose vividly some of the recurring structural patterns underlying ICL discourse. What are the implications of these observations? The implication is certainly not that the criticisms are meaningless. On the contrary, the fact that both sets of criticisms can be meaningful is precisely what makes the problem so poignant. These fault lines, which are particularly exposed in the nascent project of ICL, let us peer into the tensions of law itself. The legitimate but irreconcilable expectations are what make the project fascinating and frustrating and vital.
In my view, greater awareness of structural tensions opens a door to more nuance, open-mindedness and rigour. If we acknowledge that all decisions are by some metric ‘flawed’, then we can take our conversation to the next level: what to do with the admittedly-flawed options. I would suggest five implications.
The first implication is that one might look at the panorama of criticisms of the ICC with less despair and more discernment. The Court today is awash in severe criticisms, that it has reached too high, too low, too soon, too late, too close, too far, and so on. Awareness of dyads can help us map out the criticisms and appreciate their implications more deeply. Furthermore, if we recognize that the most powerfully laden terms (politicization, legitimacy, credibility, mandate, interests of victims) are recruited for opposite meanings, we will be less surprised by the ubiquity of their invocation. Where speakers assert the same proposition (e.g. the Court is jeopardizing its mandate), one will not assume a consensus, but rather strive to disentangle the different meanings of these terms to get a more subtle picture of the horizon.
Second, these observations can help us to evaluate a specific criticism or argument. One can ask: is this argument a one-dimensional analysis of a multi-dimensional problem? Does the argument simply employ one side of a dyad to condemn the Court's argument as flawed from that perspective? Such arguments can still be interesting, but we will recognize their limitations, given that any possible position is inevitably flawed according to the aspirations of one or both sides of a dyad. Where an argument takes ‘better’ and ‘worse’ as givens, we can consider whether the values are reversible, i.e. whether ‘virtue’ and ‘vice’ in one plausible argument could be reversed in another. If yes, what are the implications? Or, we may encounter arguments that are more nuanced, because they acknowledge the tension and trade-off between different values, but chide the Court for not reaching the ‘right’ balance. In such cases, we would examine how the ‘right’ balance is identified. Does the argument draw on unarticulated intuitions or does it offer some framework for evaluation?
Third, awareness of dyads would likely lead to a more textured approach and deliberative tone when we advance our arguments. For problems that involve a dyadic tension (and apologia-utopia is far from the only tension),Footnote 90 we should recognize that we are not battling over ‘right’ or ‘wrong’. We are debating about contestable points on a spectrum, in which every position is problematic in some sense. Accordingly, the discovery that a position of the Court is problematic through one lens or another would not necessarily lead immediately to ascriptions of bad faith, incompetence, hidden agendas, or moral shortcomings. The mere fact that one can apply an apologia or utopia critique does not by itself demonstrate those kinds of problems. The discussion would be more generous, more collegial, and more open-minded to other plausible views. I think awareness of the dyadic structure of many issues would lead many to accord the Court's officials some ‘margin of appreciation’ to make reasonable, good faith selections from the understandable yet inevitably imperfect and assailable options, without leaping quite so quickly to assertions of illegality and politicization. Within that margin, we might still advance arguments or express preferences about alternative approaches (see my fifth prescription below), but we would eschew the sensationalist rhetoric that is becoming so popular in the field.
Fourth, the preceding suggestion, of allowing some still ‘margin’ for decision-makers in which they may make choices without allegations of impropriety, points to a need to distinguish two more usages of the word ‘political’. Earlier, I explored several different senses of the word. But we can distinguish an additional axis, based on the perceived egregiousness of the departure from the perceived ‘correct’ approach. I will call these senses ‘political1’ and ‘political2’. ‘Political1’ is the more dramatic sense, i.e. that officials are not really doing law but rather using legal argumentation as a mere mask or pretext as they pursue their political (apologist or utopian) aims. This sense matches what Gerry Simpson has usefully described as ‘deformed legalism’: the claim that officials are inappropriately twisting the rules.Footnote 91 ‘Political2’ is a more subtle sense, which recognizes that legal interpreters acting in good faith are confronted by choices; that their background and understandings and training will influence their choices; and that those choices will have external political impacts.Footnote 92 There is not a bright line between the two terms. The basic gist is that ‘political2’ does not allege ‘inappropriate’ behaviour, but rather points out that choices made within the realm of legal interpretation will still have an aspect of either apologia or utopia.
Distinguishing between these two senses of this word can refine our understanding of some debates. In the discourse today, we routinely see critics accusing the Court of being ‘political’, and Court officials responding that they are not ‘political’ but just doing law.Footnote 93 When Court officials say that their interpretations are not ‘political’, presumably they are denying ‘political1’ (i.e. engaging in pretext), not ‘political2’ (i.e. making interstitial choices). If officials are indeed denying ‘political2’ then it is valuable to point out that law inherently and inescapably entails choices with hegemonic or counter-hegemonic implications, and interpreters should be aware of this.Footnote 94
Conversely, distinguishing the senses can help us notice when an argument alleges ‘political1’ but only establishes ‘political2’. The fact that an apologia or utopia critique (or both) can be applied demonstrates that law has ‘political2’ dimensions, but without more it does not prove that the Court is distorting the law, engaging in a pretence of law, or is otherwise aberrant. Choices are made by every court in every jurisdiction in the world. Choices, and their impacts, are inherent in the form of human governance known as ‘law’. They do not deprive the enterprise of the character of law. Distinguishing these two senses can help one notice whether particular claims are substantiated or whether they depend on their own assertions about presumed hidden political purposes (petitio principii arguments).Footnote 95
Fifth, arguments about ‘better’ or ‘best’ approaches will be more compelling if they articulate a framework for evaluation. I have so far emphasized that ‘better’ and ‘worse’ are not as simple as they may seem, at least in problems involving dyadic tensions. That observation does not commit one to pure agnosticism or ceasing the search for ‘better’ ways. One can acknowledge the contestability of each choice, and still advance arguments as to which choices should be made. To argue for a ‘better’, ‘right’, or ‘optimal’ approach, one would have to identify a framework for assessment. For example, one might be concerned with consistency with some concept or rule; maximizing utility or some other stated value; ‘maximizing Y subject to constraint Z’; fulfilling a theory of the function of the system; and so on. One then has a yardstick by which to assess the meanings of ‘best’, ‘right’, or ‘optimal’, or to argue for one point on a spectrum over another. Of course, even then, the analysis may only be convincing to those who agree with the proposed framework. Furthermore, the framework itself might be subject to apologia-utopia critiques. Nonetheless, it would be a more rigorous discussion, as one would provide some ascertainable grounding for the views expressed. Indeed, the effort to articulate previously unarticulated frameworks may enliven the discussion, bringing our intuitions into the light for reasoned deliberation, and perhaps refining our understandings of what the system's means and ends should be.
I believe that taking a step back and looking at the structure of the arguments both shows the need for a more searching discussion and provides some of the tools for that discussion. ICC officials must choose among imperfect and assailable options. The interesting conversation is not just to show that some particular choice is flawed, because they all are; it is to discuss how to choose among the flawed options. The deep tensions at the heart of the project are impossible and beautiful and frustrating and inspiring. But, as a final paradox, the impossibility of the project need not undermine its necessity.
