Tilburg University
Situation selection regime at the international criminal court
Zakerhossein, Mohammad
Publication date:
2017
Document Version
Publisher's PDF, also known as Version of record Link to publication in Tilburg University Research Portal
Citation for published version (APA):
Zakerhossein, M. (2017). Situation selection regime at the international criminal court: Law, policy, practice. Intersentia.
General rights
Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain
• You may freely distribute the URL identifying the publication in the public portal Take down policy
If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim.
School of Human Rights Research Series, Volume 82
A commercial edition of this dissertation will be published by Intersentia under ISBN 978-1-78068-618-9
Th e titles published in this series are listed at the end of this volume.
SITUATION SELECTION R EGIME
AT THE INTER NATIONAL
CR IMINAL COURT
Law, Policy, Practice
ACADEMISCH PROEFSCHRIFT
ter verkrijging van de graad van doctor
aan Tilburg University
op gezag van de rector magnifi cus
prof.dr. E.H.L. Aarts
in het openbaar te verdedigen ten overstaan van een
door het college voor promoties aangewezen commissie
in de aula van de Universiteit
op vrijdag 15 december 2017 om 14.00 uur
door Mohammad Hadi Zakerhossein
Promotor: Prof.mr. M.S. Groenhuijsen Copromotor: Dr.mr. A.L.M. de Brouwer
Promotiecommissie:
CONTENTS
Acknowledgment . . . xi
Abbreviations . . . xiii
General Introduction . . . 1
1. Contextualization of the Problem . . . 1
2. Questions. . . 4
3. Methodology . . . 5
3.1. Descriptive Part . . . 5
3.2. Normative Part . . . 6
3.2.1. Functional Approach to the ICC. . . 7
3.2.2. In Search of a Th eory for the Court . . . 10
3.2.3. Defi nition of Expressivism . . . 15
4. Outline . . . 18
PART ONE. FORMULATING THE CONCEPT OF SITUATION IN THE ROME STATUTE SENSE . . . 23
Chapter I Situation v. Case . . . 27
1. Dichotomy between Situation and Case . . . 27
2. Linkage between Situation and Case . . . 30
3. Reasons behind the Adoption of a Situation-Oriented Procedure . . . 31
Chapter II Defi ning Elements of the Notion of a Situation . . . 37
1. Th e Jurisdictional Element of a Situation . . . 37
2. Th e Contextual Element of a Situation . . . 38
2.1. Crisis as the Context of Situations . . . 38
2.2. Connection between Contextual Element of Crimes and Contextual Element of Situations . . . 40
2.2.1. Context of War Crimes . . . 40
2.2.2. Context of Crimes against Humanity . . . 42
vi Intersentia Contents
2.3. Situational Contextual Element in Practice. . . 47
2.4. Functions of Situational Context. . . 49
PART TWO. SITUATION SELECTION PROCESS . . . 53
Chapter I Trigger Mechanism . . . 57
1. State Referrals . . . 59
1.1. Making a Referral as a Right for All States Parties . . . 59
1.2. Th e Phenomenon of Self-Referral . . . 61
1.2.1. Th e Emergence of Self-Referrals . . . 62
1.2.2. Benefi ts of a Self-Referral for the Court’s Prosecutor . . . 64
1.2.3. Self-Referrals under Criticism . . . 66
1.3. Specifi city . . . 69
2. Th e UN Security Council Referral . . . 69
2.1. Legal Basis for UNSC Referrals . . . 70
2.2. Mutual Benefi ts . . . 73
2.3. Privileges of the Security Council Referrals . . . 76
2.4. Restrictions on Making a Referral by the UNSC . . . 80
2.5. Security Council Referrals in Practice . . . 82
2.5.1. Situation in Darfur, Sudan . . . 82
2.5.2. Situation in Libya. . . 84
2.5.3. Article 16 in Action . . . 85
3. Communications . . . 86
3.1. Procedural Aspects of Communications . . . 87
3.2. Prosecutor PROPRIO MOTU Power. . . 89
4. Declarations of acceptance under Article 12(3) . . . 91
4.1. Diff erence between Referrals and Declarations . . . 92
4.2. Declarations in Practice . . . 94
Chapter II Identifi cation Stage . . . 97
1. Identifi cation in the Context of Communications . . . 97
1.1. Forming a Situation from Communications . . . 97
1.2. ICC and the Situation of ISIS in Iraq and Syria . . . 99
1.3. Th e End of the Identifi cation Stage . . . 103
Contents
Chapter III
Preliminary Examination . . . 111
1. Time Frame . . . 114
2. Information in the Preliminary Examination . . . 117
3. Scope of Preliminary Examination . . . 121
4. Evidentiary Th reshold . . . 124
Chapter IV Making a Decision on the Situation Selection . . . 131
1. Opening an Investigation . . . 131
1.1. Investigation of Referrals . . . 132
1.1.1. Announcement of Decision . . . 133
1.1.2. Article 18 Mechanism . . . 135
1.1.2.1. Making a Challenge under Article 18 . . . 135
1.1.2.2. Scope of Article 18 . . . 138
1.2. Investigation of Communications . . . 139
1.2.1. Judicial Authorization . . . 139
1.2.2. Victims’ Participation . . . 142
1.2.2.1. Participatory Right of Victims . . . 142
1.2.2.1.1. Th e Victims’ Participation Procedure . . . 145
1.2.2.1.2. Participation in Situational Phase . . . 147
1.2.3. Judicial Decision on the Prosecutor’s Request . . . 153
2. Decision Not to Open an Investigation . . . 153
2.1. Rejection of Communications . . . 153
2.2. Rejection of Referrals . . . 156
PART THREE. SITUATION SELECTION CRITERIA . . . 161
Chapter I Jurisdiction . . . 165
1. Th e Court’s Jurisdiction Basis . . . 165
2. Th e Necessity of Jurisdiction’s Satisfaction . . . 168
3. Types of Jurisdiction . . . 169
3.1. Subject-Matter Jurisdiction . . . 170
3.2. Temporal Jurisdiction . . . 175
3.3. Territorial Jurisdiction . . . 179
3.3.1. Th e Priority of Territorial Jurisdiction . . . 181
3.3.2. Th e Scope of Territorial Jurisdiction . . . 182
3.4. Personal Jurisdiction . . . 184
3.4.1. Th e Vital Role of the Nationality Principle in Ending Impunity . . 185
viii Intersentia Contents
3.4.2.1. Immunities at the ICC. . . 187
3.4.2.2. Cooperation Obligation and Immunities . . . 191
3.4.2.3. Th e ICC Jurisprudence on Immunities . . . 193
Chapter II Admissibility . . . 201
1. Conceptualization of Admissibility . . . 201
1.1. Distinction between Admissibility and Jurisdiction . . . 201
1.2. Admissibility and the Court’s Selectivity. . . 203
1.3. From Situational Admissibility to Case Admissibility . . . 204
1.4. Components of Admissibility . . . 209
2. Suffi cient Gravity Requirement . . . 211
2.1. Diff erent Functions of Gravity in the Rome Statute . . . 211
2.2. Gravity as the Admissibility Th reshold . . . 214
2.3. Diff erence between Situational Gravity and Case Gravity . . . 217
2.4. Criteria for Gravity Assessment . . . 218
2.4.1. Scale of crimes . . . 221
2.4.2. Impact of Crimes . . . 224
2.4.3. Nature of Crimes . . . 231
2.4.3.1. Th ematic Prosecution . . . 231
2.4.3.2. Criminal Th emes at the ICC . . . 232
2.4.3.3. Exercising Th ematic Prosecution . . . 238
2.4.4. Manner of Crimes’ Commission . . . 239
2.5. Th e Case Study of the Situation of Registered Vessel of the Comoros . . . 240
2.5.1. Description of the Case . . . 241
2.5.2. Analysis of the Situation on Registered Vessel of the Comoros . . . 244
2.6. Big Fish Policy in Light of Gravity . . . 247
3. Complementarity . . . 253
3.1. Th eoretical Pillars of Complementarity . . . 256
3.2. Complementarity as Admissibility Rule . . . 259
3.2.1. Defi ning Potential Cases for the Situational Complementarity Assessment . . . 259
3.2.2. Th e Concept of Case in the Complementarity Assessment . . . 263
3.2.2.1. Th e Same Conduct Test . . . 265
3.2.2.1.1. Th e Conduct Notion at the ICC Case Law . . 265
3.2.2.1.2. Narrow Interpretation of the Same Conduct Test . . . 274
3.2.2.1.3. Broad Interpretation of the Same Conduct Test . . . 279
3.2.2.1.4. Sentence-Based Approach Doctrine . . . 280
3.2.2.2. Th e Same Person Test . . . 282
Contents
3.2.3.1. Arguments Supporting Establishing the Inaction Test . 287
3.2.3.2. Proofs of Being Active . . . 289
3.2.3.2.1. Features of Active National Proceedings . . . 289
3.2.3.2.2. Relevant Evidence to Prove Domestic Activity . . . 293
3.2.3.3. Admissibility of Self-Referrals in light of the Inaction Test . . . 295
3.3. Burden of Proof in the Complementarity Assessment . . . 298
3.4. Genuineness Requirement for the Domestic Proceedings . . . 300
3.5. Situation of State’s Unwillingness . . . 305
3.5.1. Due Process Framework in Determining Unwillingness . . . 306
3.5.2. Shielding from Justice . . . 311
3.5.3. Unjustifi ed Delay in Delivering Justice . . . 313
3.5.4. Impartiality and Independence of the Domestic Proceedings . . . 314
3.6. Situation of a State’s Inability . . . 315
3.6.1. Th e situation of Collapse of National Judicial System . . . 316
3.6.2. Situation of Unavailability of the National Judicial System . . . 320
3.6.2.1. Normativity of Unavailability Test . . . 321
3.6.2.2. Legal Characterization: Ordinary Crimes or International Crimes . . . 322
4. Availability of Situations . . . 327
Chapter III Interests of Justice . . . 333
1. Exceptionality of the Interests of Justice Requirement . . . 334
2. Distinction from the Admissibility Requirement . . . 336
3. Necessity of Examination . . . 338
4. A Concept without Defi nition . . . 341
5. A Victim-Oriented Notion . . . 342
6. A Context for the Applicability of the Interests of Justice: Justice or Peace . . . . 346
6.1. Justice Supporters . . . 348
6.2. Peace Supporters . . . 351
6.3. Th e Prosecutor Status Quo . . . 354
6.4. Preliminary Examination as a Platform for a Plural Approach . . . 358
6.5. Peace as a Tool for Justice . . . 360
7. Decision Not to Initiate an Investigation . . . 363
x Intersentia Contents
PART FOUR. SITUATION SELECTION IN LIGHT OF EXPRESSIVISM . . . 369
Chapter I Conceptualization of Expressivism in the Context of the ICC . . . 371
1. Expressivism and its Benefi cial Eff ects on Victims . . . 372
1.1. Th e Emergence of the Victims’ Rights in the ICC . . . 373
1.2. Court’s Messages for Victims. . . 377
2. Expressivism Fosters the Positive Complementarity . . . 379
2.1. Defi nition of Positive Complementarity . . . 381
2.2. Materializing Positive Complementarity . . . 383
2.2.1. Encouragement . . . 384
2.2.2. Reverse Cooperation . . . 385
Chapter II Implications of Expressivism on the Situation Selection . . . 389
1. Selection of a Situation for Conducting Preliminary Examination as a Platform to Serve Victims . . . 389
2. Lenient Complementarity Assessment . . . 394
CONCLUSION . . . 401
1. ‘Situation’ as a Concept with an Ambiguous Defi nition . . . 401
2. Identifi cation Stage: Th e Missing Phase at the ICC Architecture . . . 403
3. Selecting a Situation for Highlighting a Forgotten Criminal Th eme . . . 403
4. Complementarity as Rule and Complementarity as Principle . . . 404
5. No Harm to Victims Principle . . . 406
6. A Need for Extending Judicial Review of the Prosecutor’s Decisions . . . 407
7. An Expressive Situation Selection . . . 408
8. Implications of Designing an Expressive Situation Selection Regime . . . 410
9. To conclude . . . 412
Bibliography . . . 413
ICC Case Tables . . . 429
OTP Documents . . . 437
ACKNOWLEDGMENT
Spending fi ve years at Tilburg Law School, besides visiting University of California Los Angeles, Middlesex University and Galway University, off ered me the tremendous opportunity to write this book. In this regard, I have received enthusiastic support of many people, all of whom I owe sincere gratitude.
My supervisors Marc Groenhuijsen and Anne-Marie de Brouwer: I deeply appreciate all your whole-hearted backing and sincere belief in me. I feel fortunate to have had you. Th ank you for your invaluable comments and excellent advice you have given me throughout the years and for giving me the space, courage and inspiration I needed to develop my ideas and broaden my knowledge. In addition, I must thank you for all your heartfelt sympathy and support to my personal life.
My colleagues from the Tilburg University’s Department of Criminal Law: you made the time I spent working on my thesis enjoyable. Due to your kindness, I looked forward to each day I worked at my offi ces on the 8th fl oor in the M building. Th ank you for all
your companionship.
Th e reading committee: Professors Kooijmans, you have been a friend rather than a boss for me at Tilburg University before and during my teaching, van Genugten, Smeulers and Dr. Bevers, I always had your great support when I did an internship at the Offi ce of the Prosecutor of the International Criminal Court under your supervision, thank you very much for providing me with your constructive and valuable feedback.
Last but not least, writing this thesis would have been impossible without the support of my parents and family. Fatemeh, you had the more diffi cult part throughout the years, but I did see nothing except for kind support and great encouragement. I am blessed to have you.
ABBR EVIATIONS
ASP CAR DRC HRW ICC ICD ICJ ICTR ICTY ILC IMT ISIS JCCD LRA NGO OTP PTC RS SCSL STL TFV TRC UN UNSC UNSCR UNSGAssembly of States Parties Central African Republic Democratic Republic of Congo Human Rights Watch
International Criminal Court International Crime Division International Court of Justice
International Criminal Tribunal for Rwanda
International Criminal Tribunal for the former Yugoslavia International Law Commission
International Military Tribunal Islamic State in Iraq and Syria
Jurisdiction and Complementarity and Cooperation Division Lord’s Resistance Army
None-Governmental Organization Offi ce of the Prosecutor
Pre-Trial Chamber Rome Statute
Special Court for Sierra Leone Special Tribunal for Lebanon Trust Fund for Victims
Truth and Reconciliation Commission United Nations
United Nations Security Council
GENER AL INTRODUCTION
1. CONTEXTUALIZATION OF THE PROBLEM
In late 2016, the International Criminal Court (ICC, Court) faced a legitimacy crisis: a series of withdrawals by some African States from the Rome Statute surged. Th ese States declared their intentions to terminate their memberships of the ICC. Th e relationship between the Court and Africa has been fragile over recent years.1 Calls
for mass withdrawals from the Rome Statute were fi rst made by the African Union’s Open-Ended Ministerial Committee of Ministers for Foreign Aff airs on the ICC. Th e Committee was established pursuant to the decision of the African Union Assembly during its 25th Ordinary Session, which was held in Johannesburg, South Africa in
June 2015.2 Th e Open-Ended Committee is composed of Ethiopia, Chad, Burundi,
Eritrea, South Sudan, Kenya, Libya, Sudan, Madagascar, Namibia, Zimbabwe and Senegal.3 In April 2016, the Committee called for the African States Parties to the
ICC to collectively withdraw from the Rome Statute, provided that the African demands would not be met.4 African States had demanded, inter alia, recognition for
immunity of sitting Heads of State. Two African Presidents have been targeted by the Court, Al Bashir (Sudan) and Kenyatta (Kenya). Th e Committee fi rst tried to meet the United Nations Security Council (UNSC) to fi nd a solution. However, this eff ort was not successful. Consequently, Burundi, Gambia and South Africa announced their decisions to leave the ICC. On 12 October 2016, the Parliament of the Republic of Burundi voted to support a plan to withdraw its country from the Rome Statute.5
Later, Burundi informed the United Nations Secretary-General (UNSG) of its intention to leave the ICC. On 21 October 2016, South Africa announced that it had notifi ed the
1 See: James Nyawo, Selective Enforcement and International Criminal Law, Intersentia, 2017.
2 African Union Assembly, Decision on the Update of the Commission on the Implementation of the Previous Decisions on the International Criminal Court, 2015, available at: www.jfj ustice.
net/wp-content/uploads/2015/06/Decision-on-the-update-of-the-AU-Commission-on-the-implementation-of-previous-decisions-on-the-International-Criminal-Court.pdf, last accessed at 4 June 2017.
3 All Africa, Africa: Th e Open-Ended Committee on ICC Meeting Held, 30 September 2015, available at: http://allafrica.com/stories/201510010723.html, last accessed at 4 June 2017.
4 Nyawo, 2017, p. 26, see supra note 1.
General Introduction
2 Intersentia
UNSG that it was withdrawing from the ICC.6 Later, Gambia joined this course of
withdrawals.7
Th e Fift eenth Session of the ICC Assembly of States Parties (ASP) that was held in November 2016 was considerably aff ected by the African countries’ initiative against the Court. At the time, as the director of a Non-Governmental Organization, I had participated in the Session. I was witnessing how the regular topics in the Session were overshadowed by the African States’ decisions. Universality has been one of the core aims of the ICC. In December 2006, the ICC ASP, through Resolution ICC-ASP/5/Res.3, adopted a Plan of Action for achieving universality of the Rome Statute, considering the universality of the Rome Statute is imperative to end impunity. States’ withdrawal from the Court was about to hurt the legitimacy of the Court. Th e Court supporters were sincerely concerned. Nonetheless, the succession of withdrawals interrupted. Among those African States that had declared their intentions of leaving the Court, only Burundi preserved its status. In the meanwhile, Gambia welcomed a new government and President. Th e new Gambian President, in contrast with his predecessor, adopted a positive and supportive approach to the Court. On 17 February 2017, the new government of Gambia offi cially notifi ed the UNSG of its decision to rescind the notifi cation of withdrawal with immediate eff ect.8 South Africa’s decision
to withdraw from the ICC was ruled “unconstitutional and invalid” by the High Court of this country.9 States in the ASP Session largely supported the ICC, and demanded
Africa to remain supportive to the Court as always. However, many delegations advised the Court to listen to the African voices and concerns.10 In this regard, the President
of the Court, Judge Fernandez de Gurmendi, at the 2016 ASP session insisted that the Court is committed to listening to the concerns engaged by African nations.11
Th e wave of withdrawals has now fallen, but the probability of another wave is still real.12 What triggered the fi rst series of withdrawals stemmed from the Court’s
selectivity. Th e Court operates in a selective manner. Selectivity is an inescapable feature of the ICC. Th is institution does not select all situations that include one or
6 HRW, Burundi: ICC Withdrawal Major Loss to Victims-Latest Move Shows Government’s Disregard for Victims, 27 October 2016, available at: www.hrw.org/news/2016/10/27/burundi-icc-withdrawal-major-loss-victims.
7 Al-Jazeera, Gambia Withdraws from International Criminal Court, 26 October 2016, available at: www.aljazeera.com/news/2016/10/gambia-withdraws-international-criminal-court-161026041436188. html, last access at 27 June 2017.
8 UN, Gambia: Withdrawal of Notifi cation of Withdrawal, 16 February 2017, available at: https:// treaties.un.org/doc/Publication/CN/2017/CN.62.2017-Eng.pdf, last accessed at 4 June 2017.
9 BBC, South Africa’s Decision to Leave ICC Ruled ‘Invalid’, 22 February 2017, available at: www.bbc. com/news/world-africa-39050408, last accessed at 4 June 2017.
10 For instance see the statements made by the Japanese delegation, available at: www.nl.emb-japan. go.jp/itpr_en/20161117_15asp.html, last accessed at 4 June 2017.
11 For instance, see the statements made by the President of the Court, available at: www. geoff reynicefoundation.com/activities_t03.html, last accessed at 4 June 2017.
General Introduction
more crimes, which fall within its jurisdiction. Selectivity poses the question of how the Court selects a situation. Th e Court’s selective function should be justifi able and is conducted in a consistent and coherent manner. Otherwise, the Court loses its legitimacy and if the major constituencies, such as States, view the Court as making the wrong choices, “they are likely to withdraw their support from the Court and possibly even seek its destruction”.13 Th e critical African States believe that the Court is selective
in an unacceptable manner. For instance, Bojang, the then Gambian Information Minister, said on State television that the Court had been used “for the persecution of Africans and especially their leaders” while ignoring crimes committed by the West.14
Th is argument was the main perception that constituted the African States’ attitude to the Court. Some years before the 2016 legitimacy crisis, Jalloh had referred to a “growing perception” that “Africans have become the sacrifi cial lambs in the ICC’s struggle for global legitimation”.15 Th is perception of the ICC draws an institution that
is politics-driven and applies double standards.16
As long as the Court is judged from such a perception, its legitimacy remains highly vulnerable. Such a judgment and perception, however, is widespread. Th is sentiment is not limited to situation countries or States Parties. Such an ambiguity discourages non-member States to join the ICC. For example, in Iran lack of profound and fi rst-hand knowledge of the law, policy and practice of the ICC regarding the situation selection has cast strong suspicion concerning the Court’s independence and impartiality.17
Nonetheless, one shall ask whether such a perception is accurate or whether if rather is a misperception and misjudgment of the ICC. It seems that the popular judgment about the Court suff ers from misinformation and the lack of deep knowledge of the ICC legal system.18 Th e Court functions in a selective manner. Selectivity is a built-in and
constitutional feature of the Court. However, the selectivity at the Court has a regime. As Krasner defi nes, a regime is a set of explicit or implicit “principles, norms, rules, and decision making procedures around which actor expectations converge in a given issue-area”.19 Now, it should be assessed to determine whether such a regime is a coherent,
transparent and justifi able system.
13 Margaret M. de Guzman, ‘Choosing to Prosecute at the International Criminal Court’, Michigan
Journal of International Law, 2012, vol. 33, p. 268.
14 Th e Guardian, Gambia is Latest African Nation to Quit International Criminal Court, 26 October 2016, available at: www.theguardian.com/world/2016/oct/26/gambia-becomes-latest-african-nation-to-quit-international-criminal-court, last accessed at 4 June 2017.
15 Charles Chernor Jalloh, ‘Regionalizing International Criminal Law?’, International Criminal Law
Review, 2009, vol. 0, p. 463..
16 See: Wolfgang Kaleck, Double Standards: International Criminal Law and the West, Torkel Opsahl Academic Publisher, 2015.
17 For instance, see: Fereydoon Jafari, International Criminal Court and Globalization of Criminal Law: Interaction or Encounter, Shahre Danesh, 2012.
18 For instance, the ICC Outreach Unit in its Outreach Report (2010) refers to its eff orts to correct misperceptions and counter misinformation regarding, inter alia, targeting African counties (ICC, Public Information and Documentation Section, Outreach Report 2010).
General Introduction
4 Intersentia
However, the gap in the literature on the situation selection process and criteria has been wide. Over time, some steps were taken to off er a deeper insight into the situation selection regime at the ICC, but they have not been comprehensive. For instance, Guariglia and Rogier, two staff members at the Offi ce of the Prosecutor, dealt with the situation selection at the ICC and referred to good hints, but only in 5 pages.20 In addition, some scholars, for instance De Guzman, devoted special attention
to the gravity concept as one of the main selective factors at the ICC situation selection regime, but these works do not study the whole regime of the situation selection.21 Th e
widespread perception against the ICC on the one hand, and incompletion of studying the ICC situation selection regime in the body of literature on the other motivated me to gain a profound knowledge of the situation selection at the ICC to see whether, as some presume, the Court has a double-standard situation selection regime or, by contrast, its selectivity is with justifi cation.
2. QUESTIONS
Th is research revolves around three fundamental questions:
1. What does the situation notion mean? Conceptual questions precede normative inquiries. Without a clear defi nition of ‘situation’, no one can respond correctly to the question of how a situation is or should be selected. Ambiguities surrounding the concept of situation extend to the norms ruling its selection.
2. How does the current ICC situation selection regime run? In other words, how is a situation selected at the ICC?
Th e question of how a situation is selected refers to the process of situation selection. Th us: 1.1. What is the situation selection process? In addition to this procedural query, the how question poses a normative inquiry, namely 1.2. What criteria are applied for selecting a situation?
3. How should a situation be selected in light of the normative theory of expressivism?
Th is book adopts ‘expressivism’ as a theory that can rationalize the selectivity in the ICC situation selection regime by justifying the exemplary and illustrative function of the Court. Expressivism considers all functions of the Court as instruments that are intended to promote some norms.22
20 Fabricio Guariglia and Emeric Rogier, ‘Th e Selection of Situations and Cases by the OTP of the ICC’, in Carsten Stahn (ed.), Th e Law and Practice of the International Criminal Court, Oxford University Press, 2015, p. 360.
21 Margaret M. De Guzman, ‘How Serious are International Crimes? Th e Gravity Problem in International Criminal Law’, Columbia Journal of Transnational Law, 2012, vol. 51, p. 58.
General Introduction
3. METHODOLOGY
3.1. DESCR IPTIVE PART
Th is research adopts two approaches in responding to its questions, namely descriptive and analytical. To answer how a situation is selected in terms of process and criteria, this study suggests three sources: law, policy and practice of the ICC. Th is research aims to, fi rst, clarify how a situation is selected according to the ICC law. According to Article 21 of the Rome Statute, the Court shall apply “in the fi rst place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence.” Th e statutory and legal framework for the situation selection process and criteria consists of two Articles, namely, Article 15 and Article 53 of the Rome Statute. Th ese two Articles draft the main process in which a situation is selected that is known as the preliminary examination stage, and the criteria that should be taken into account for this purpose. In addition to the Rome Statute, the ICC Elements of Crimes, the Rules of Procedure and Evidence, the Regulations of the Court and the Regulations of the Offi ce of the Prosecutor (OTP), provided they are relevant to the situation selection, are taken into account. Th ese accessory legal texts are in place to elaborate what is intended by the Rome Statute.
Th e relevant provisions at the ICC law regarding the situation selection are legal texts in nature. A text is inherently interpretable. It is primarily the authority and responsibility of the Prosecutor of the Court to select a situation. Th e ICC law in this regard has outlined the general standards that should be applied by the Prosecutor in selecting situations to prevent an arbitrary selectivity at the ICC. However, those statutory criteria have been left without a precise defi nition. It is the authority of the Court’s Prosecutor to consider and apply them based on her own understanding and interpretation.23 In this regard, and to promote transparency in her works, the
Prosecutor of the Court tends to issue Policy Papers that express her own understanding and interpretation of the statutory requirements and concepts regarding various issues, including situation selection. Th ose Policies are of immense help in understanding how a situation is selected by the Prosecutor.24
In selecting a situation, the Prosecutor shall apply the legal requirements that have been established by the ICC’s core legal texts, based on her own understanding of those provisions. Here, the practice of situation selection is a reliable source to understand how the Prosecutor applies the established criteria to select or reject a situation. Th e practice and jurisprudence of the Court develops the legal system of this judicial institution. Th e Court is a permanent institution with a concise founding instrument.
23 Because this research has been conducted in the reign of Prosecutor Fatou Bensouda, in referring to the Prosecutor of the Court in a general sense, a female pronoun is used.
General Introduction
6 Intersentia
Th e legal texts of the ICC are developed, understood and fed by its jurisprudence. In practice, many novel questions arise, and answering those questions may change the classical understanding of a notion or function. For this reason, all situations that have been selected by the Prosecutor, have undergone a preliminary examination or have failed to reach the preliminary examination will be taken into account. Th e practice of the Court in this regard is limited to those instances that have been announced by the OTP.
It should be noted that due to the uniqueness of the situation selection regime at the ICC, there is not any precedence before the Court in this regard. Ad hoc tribunals and national jurisdictions have been primarily case-oriented. Although there is a conceptual distinction between a case and a situation, as will be discussed in detail later, it does not mean that the existing laws, policies and practices as to the case selection at both national or international level are irrelevant to the situation selection regime. Selectivity, as to either a case or a situation, could have some rules in common. For instance, transparency and non-arbitrary selection are applicable to both case and situation selection. In addition, the rules and practices of other tribunals with regard to the case selection can suggest some guidance to select a situation. Taking into account this function, in this thesis, the rules and quotations about the selection of a case has been used in the context of the situation selection regime. Th is use does not contradict the dichotomy between the notion of case and the concept of situation. However, to keep loyal to the text of a quotation that has been originally stated about the case selection mechanism, the term case used in the original text has been left untouched.
In addition to its descriptive pillar, this research integrates an analytical perspective in all its chapters. In parallel with describing the situation selection regime at the ICC, the law, policy and practice of the Court in this regard are analyzed. Th e ICC situation selection regime needs further clarifi cation and explanation. Th e status quo leaves some gaps in the regime that need to be identifi ed and fi lled in. By analyzing the Court’s law, practice and policy in this regard, this research seeks to introduce a situation selection regime that is understandable, explanatory, and entirely logical.
3.2. NOR MATIVE PART
General Introduction
exception. In other words, in other jurisdictions, prosecutors exceptionally not select a situation. By contrast, at the ICC, the Prosecutor exceptionally selects a situation or case. Such broad selectivity is rooted in both practical and normative reasons. Th e Court lacks suffi cient resources to deal with all situations and cases that fall within its jurisdiction. In addition to its inability, under the complementarity principle, the Court is not intended to occupy the primary role of States in combating the ICC-identifi ed crimes. In other words, the ICC is only a last resort mechanism, rather than a replacement to national jurisdictions. Th e permanency of the Court also increases its excessive workload, and makes this organization more selective. Th e Court’s selectivity can hurt the legitimacy of the Court. Th e Court’s legitimacy is a purposive notion that is shaped in light of the Court’s eff ectiveness in realizing its goals and mandates.25 Th e
extensive selectivity of the Court does not allow the Court to eff ectively and maximally realize its main constituent objectives referred to in the Preamble of the Rome Statute, namely ending impunity (retribution) and prevention (deterrence).
Setting up some ex ante standards that show how the Court selects a situation and making the selection or deselection of a situation transparent and reasoned are necessary steps that should be taken in building a qualifi ed judicial institution with transparency and coherency. Nevertheless, these steps are not suffi cient in justifying the Court’s bored selectivity.26 Indeed, the Court’s selectivity needs a theory that justifi es this feature
and is able to justify maintaining a system that functions widely selective. Th e ICC was founded on what that is called an “incompletely theorized agreement”.27 To fi ll such a
gap, this research theorizes the selectivity and the situation selection regime at the ICC. Th is books premises on the expressivism theory. Expressivism as a theory has two aspects and functions. First, it is a descriptive and explanatory theory that justifi es the selectivity of the situation selection regime by facilitating the illustrative function of the Court. In addition, this understanding establishes an evaluative framework within which this research reads and interprets the ICC law, and evaluates the policy and practice of the Court as to the situation selection regime. Th e latter dimension deals with the question of the situation selection regime as it should be.
Adopting the expressivism theory stems from a functional approach to the ICC.
3.2.1. Functional Approach to the ICC
Th e ICC fi rst and foremost is an international public organization.28 Th e most important
eff ect of having such a feature is that the Court is governed by both international law
25 Some argue that the legitimacy of an organization must be “identifi ed with purposes and goals that are consistent with the broader norms and values of its society” (See: Bruce Cronin and Ian Hurd, ‘Introduction’, in Bruce Cronin and Ian Hurd (eds.), Th e UN Security Council and the Politics of International Authority, Routledge, 2008, p. 6.
26 See: De Guzman, 2012, pp. 289–299, see supra note 13.
27 Cass R. Sunstein, ‘Incompletely Th eorized Agreement’, Harvard Law Review, 1994, vol. 1733. 28 International Public/Inter-Governmental Organizations are distinct from Private/Non-Governmental
General Introduction
8 Intersentia
and institutional law.29 As the ICJ States, “international organizations are subjects of
international law and as such are bound by any obligation incumbent upon them under general rules of international law.”30 A precise defi nition of international organizations
is not possible.31 Article 2 of the draft Articles on Responsibility of International
Organizations defi nes an international organization as “an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality.”32 Inter-governmental organizations like the ICC are
creatures of States’ will.33 Such a will is enshrined in a legal instrument, namely the
constituent instrument of an organization.
Every organization is a means of realizing specifi ed goals, which are set for that organization by its creators. To see organizations as an instrument is an important element in understanding the role of international organizations in today’s world. However, one should bear in mind that an organization is not simply a dead instrument. Conversely, international organizations are an entity of legal personality with a distinctive discretionary power, which allows them to play an active role in achieving their established aims. Indeed, an instrumental approach to organizations only indicates that they serve some specifi c goals. Th ere are various goals and objectives of varying degrees of importance that persuade States to cooperate with each other in order to realize those aims through the establishment of an institution. Th e reason behind such cooperation is that States are not able to reach eff ectively their goals without the cooperation between one another. International relations between States as an inevitable necessity for the contemporary age and the institutionalization of inter-States relations have led to international organizations.34 Th e proliferation
of international organizations across the world in recent decades demonstrates the effi ciency and practical eff ectiveness of this phenomenon for States in reality. Th is feature of international organizations leads to the adoption of a functional approach to understanding them.
As Keohane describes, functional explanations are generally post hoc in nature, because they account for cause in terms of their eff ects.35 In other words, functionalism
29 Institutional Law is defi ned as the law governing the structure and general operations of public international organizations (See: C.F. Amerasinghe, Principles of the Institutional Law of International Organization, Cambridge University Press, 2005, p. 13).
30 ICJ, Advisory Opinion, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, 20 December 1980, para. 37.
31 Jan Klabbers, An Introduction to International Institutional Law, Cambridge University Press, 2002, p. 7.
32 Draft Articles on the Responsibility of International Organizations, Adopted by the International Law Commission at its sixty-third session, 2011.
33 States have an essential quality and that is they have separate will. As Alexander Wendt points out States are intentional or purposive actors and in this sense they are considered as person (See: Alexander Wendt, Th e State As Person in International Th eory, Review of International Studies, 2004, vol. 30, p. 291).
34 Amerasinghe, 2005, p. 5, see supra note 29.
General Introduction
is a kind of theory in which eff ect explains cause.36 From this viewpoint, international
organizations are created by States as instruments to achieve certain goals. Th is instrumental cooperation between States puts its focus on those goals and objectives, which are sought by States. Functionalism adopts an interpretative approach to the law of organizations. According to this interpretative perspective, the understanding of the law of organizations is not simply about the text of a treaty but also the purposes and functions of organizations.37 Functionalism promotes the ‘functional necessity’.
Th e functional necessity concept asserts that an entity shall be entitled to what is strictly necessary for the exercise of its functions in the fulfi llment of its purpose.38
According to this framework, to identify the powers and authorities of an international organization, its purposes and goals must be considered. In legal terminology, a function is a tool for the accomplishment of purposes.39
Functional necessity plays as a standard and yardstick to determine the scope and extent of powers that an organization enjoys to fulfi ll its mandates. Th is function has two dimensions. Th e fi rst one is ‘the authoritative aspect’, which provides the necessary capacity of an international organization to undertake some activities to realize its primary goals. Th e second dimension is ‘the limitative aspect’, which denies any power for an organization behind its functions and purposes. Functional necessity is based on the idea that international law does not automatically grant any substantive rights or obligations to international organizations.40 Conversely, organizations must
be endowed with rights and duties by States and for the purpose of their constituent goals. Th e extent of powers of an organization shall be limited only to those powers that are necessary for exercising its organizational functions. In other words, whereas States may perform all activities unless their incompetence can be demonstrated, international organizations may not perform any activities unless their competence can be demonstrated.41 It must be noted that the functional necessity doctrine does
not determine the content of powers, which are necessary for each organization. Th e content of powers may diff er from organization to organization.42
Th ere are two kinds of powers pertaining to international organizations: implied and attributed. Th e idea behind attribution is that international organizations can only do those things for which they are empowered.43 Implied powers are those powers that
are not expressly conferred to an organization by its constitutive instrument, but can be derived from the express powers and functions of an organization by the exercise
36 Andreas Hasenclever, Peter Mayer and Volker Rittberger, Th eories of International Regimes, Cambridge University Press, 2004, p. 40.
37 Nigel D. White, Th e Law of International Organizations, Manchester University Press, 2005, p. 9. 38 Peter H. F. Bekker, Th e Legal Position of Intergovernmental Organizations: A Functional Necessity
Analysis of Th eir Legal Status and Immunities, Brill, 1994, p. 39.
39 Ibid., p. 46.
40 Klabbers, 2002, p. 36, see supra note 31. 41 Bekker, 1994, p. 76, see supra note 38.
42 It is called the ‘principle of speciality’ (See: Ghasem Zamani, Law of International Organizations:
General Introduction
10 Intersentia
of the necessary implication method. Implied powers are essential to the performance of the organization’s duties.44 Th e ICJ in the Reparation Case recognized the implied
powers doctrine and stipulated that “an organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.”45 Th e main
feature of both kinds of powers is that they are based on the intention of constituent States, implied or explicit. Draft ers of the constituent instruments of organizations cannot be omniscient, and there may be circumstances in which an organization would need a power not expressly granted in order to function eff ectively.46 It is not possible
to predict all needs of an organization, because needs are dynamic over time. In such circumstances, the intention of the draft ers and founders of a legal treaty should be understood from the eyes of the present readers if an organization is intended to function eff ectively.
3.2.2. In Search of a Th eory for the Court
Th e preamble of the Court explicitly refers to two main objectives of the Court, namely prevention and ending impunity. Th e OTP’s fi rst report of the Prosecutor to UNSC in 2011 stated that “the prosecutors’ action will be guided by the object and purpose of the Statute, namely: the prevention of serious crimes of concern to the international community through the ending of impunity.”47 In addition, the judgments of the ad hoc
tribunals refer to retribution and deterrence as the twin goals of sentencing.48 Th ese two
traditional theories are teleological and deontological respectively.49 In other words,
they are instrumental and moralistic.50 Th e former is a forward-looking theory that
focuses on the consequences of the punishment. Th is kind of theory is consequentialist. From this perspective, criminal law is an instrument that can be used to serve various possible ends.51 Th e latter is a backward-looking theory, which focuses on the nature of
44 Göran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States, Intersentia, 2002, p. 28.
45 ICJ, Reparation for Injuries Suff ered in the Service of the United Nations, Advisory Opinion, 1949, p12. Nonetheless, some authors State that the ICJ adopted a contradictory approach to implied powers doctrine in its judgment in case of Legality of the Th reat or Use Of Nuclear Weapons, 1996, with regard to determination of the authorities of the UN agencies (See: Zamani, 2009, p. 56, see supra note 42).
46 Klabbers, 2002, p. 74, see supra note 31.
47 Sarah M.H. Nouwen, Complementarity in the Line of Fire: the Catalyzing Eff ect of the ICC in Uganda
and Sudan, Cambridge University Press, 2013, p. 409.
48 Robert Sloane, Th e Expressive Capacity of International Punishment, Columbia Public Law and Legal Th eory Working Papaer, 2006, p. 34.
49 Robert Cryer, Hakan Friman and Darryl Robinson (et al), An Introduction to International Criminal
Law and Procedure, Cambridge University Press, 2014, p. 29. McGonigle Leyh adopts a diff erent label: consequentialist and non-consequentialist (See: Brianne McGonigle Leyh, Procedural Justice: Victim Participation in International Criminal Procedure, Intersentia, 2011, p. 37).
50 Stanford Encyclopedia of Philosophy, Th eories of Criminal Law, 14 October 2002, available at: https:// plato.stanford.edu/entries/criminal-law, Last accessed at 5 April 2017.
General Introduction
crimes and the deserving of criminals to be punished. Although the Court’s activities have both retributive and preventive eff ects and features, these theories do not fi t the ICC system well.
Th e main non-consequentialist criminal theory is retributivism. Retributivists adopt a moralistic approach to criminalization. Th is theory maintains that punishment is required when moral norms are violated.52 Retributivism believes that to treat the
perpetrators as a means to another end (as utilitarian approaches do) is to fail to respect them as full persons.53 Th ere is a causal relationship between a crime and punishment.
Th e commission of crimes inherently causes an eff ect and that is the deserving of the perpetrator of a crime to receive a punishment (principle of causality).54 Retributivists
justify the punishment as an end in itself.55 Th e Kantian ‘island society about to
disband’ is a good example showing the absoluteness in retributivism. According to this exemplary situation, if someone commits murder, he deserves to be punished even if he is the last person of a society. Such a perspective results in the absoluteness of punishment. All crimes should be prosecuted and all criminals should be sanctioned. It is in itself the main downside of the retributivism in the context of the international criminal justice system.
Th is theory is unable to justify the selective justice. Retributivism requires the prosecution of all crimes and criminals. Th ere is no exception and exemption. Th is theory asserts that punishment should be imposed as the natural eff ect of the commission of crimes. It is because by committing a crime, the wrongdoer has disturbed the social and moral balance that existed before the crime was committed.56 Hence,
punishment is imposed to restore things to the initial situation. From a deontological perspective, punishment is imposed to negate the wrong and to reassert the right.57
From a secular perspective, culprits obtain ‘unfair advantage’ by committing crimes. Th erefore, punishment is imposed as “a debt owed to the law-abiding members of one’s community; and, once paid, it allows re-entry into the community of good citizens on equal status.”58 Nonetheless, the international criminal justice system is unable to
make such a balance between benefi ts and burdens. Th is system is intentionally and inevitably selective. Th e international criminal justice system embraces two kinds
52 Margaret M. De Guzman, ‘An Expressive Rationale for the Th ematic Prosecution of Sex Crimes’, in Morten Bergsmo (ed.), Th ematic Prosecution of International Sex Crimes, Torkel Opsahl Academic EPublisher, 2012, p. 17.
53 Cryer and Friman and Robinson, 2014, p. 30, see supra note 49.
54 Scholars have suggested that desert can be measured either empirically by ascertaining community views, or deontologically by appealing to moral principles (See: De Guzman, 2012, p. 19, see supra note 52).
55 McGonigle Leyh, 2011, p. 37, see supra note 49.
56 Sharzad Fouladvand, Complementarity and Cultural Sensitivity: Decision-making by the ICC Prosecutor in relation to the Situation in the Darfur Region in Sudan and the Democratic Republic of the Congo, the Degree of Doctor of Philosophy, University of Sussex, 2012, p. 32.
57 Jean Hampton, Th e Moral Education Th eory of Punishment, Philosophy and Public Aff airs, 1984, vol. 13, p. 215.
General Introduction
12 Intersentia
of selectivity, namely the horizontal and vertical selectivity.59 Horizontal selectivity
means only to deal with some situations among similar situations. Vertical selectivity refers to the selection of only some individuals and cases within a situation and leaving other cases unprosecuted. Retributivism is unable to justify both kinds of selectivity in the international criminal justice system. If the selectivity of the ICC was a matter of inability, there would be a justifi cation to accept retributivism as a theory. Someone would argue that the Court is not able to prosecute all cases, so it shall do whatever it can. Nonetheless, the Court is intended to be selective. Retributivism has been framed in the context of domestic criminal law. However, it is not a perfect theory for the ICC, given the Court’s unique features. By prosecuting a handful of crimes, the imbalance created by the commission of crimes is not altered, as requested by retributivism. Th e ICC as a criminal tribunal has retributive tools at its disposal. Nonetheless, the Court uses punishments as a tool, not as an end, and in an exemplary manner.60
Another criminal theory that has some traces in the ICC is deterrence. Th e deterrence theory lies in the scope of consequentialism.61 Th e consequentialist
theories are based on the consequences arising from an action. In the eyes of the consequentialists, punishment is not a purpose in itself, but it can only be justifi ed to the extent that it promotes some legitimate purposes, which outweigh the pain infl icted on the wrongdoer.62 Th is doctrine utilizes the punishment and criminal intervention to
achieve other objectives. Th e utilitarian theories are forward-looking because they focus on the benefi ts of criminal justice.63 Th is kind of theory is an instrumentalist approach
in nature. Criminal law is seen as an instrument that may be used to reach some external goals. Th e emphasis on deterrence as a goal of international criminal justice
59 Kaleck, 2015, pp. 7–8, see supra note 16.
60 Th ere are also some other criticisms. Some have questioned the utility of retributivism in the context of the international criminal justice system. On the one hand, it is said that because this theory is based on moral grounds, it is impossible to come to any widespread acceptance of morality. In addition, others argue that retribution therefore is a problematic justifi cation because it presupposes both a coherent community and a relatively stable legal order characterized by shared values. Hobbs in Leviathan asserts that “there is no crime, where no civil society is.” Th ese critics tend to believe that the international community has a fi gurative nature and lacks any capacity to provide some norms. However, these arguments do not seem compelling. Th ere is no objection about the criminal nature of the international crimes. Th ose values, which are protected by criminalizing the international crimes, are universal. Th e ending impunity that has been introduced as one of the main constituent goals of the ICC is a notion close to retributivism. Ending impunity aims at preventing the crimes going unpunished. It shows that it put the punishment at the center of its demands. Th at is why it is said that it is the retributive paradigm that has most infl uenced international criminal justice responses to mass crimes. In addition, retributivism is a punishment-centered theory. Due to depersonalization as an eff ect of retributivism, this theory has faced some criticism arguing this it is a kind of blind justice that ignores the interests of victims and the characteristics of the off enders. Th e only recommendation of retributivism is punishment, while the criminal justice system should be able to provide other responses to the crimes as well.
61 Although deterrence and prevention are oft en used interchangeably, deterrence is more accurately viewed as a form of prevention (See: De Guzman, 2012, p. 24, see supra note 52).
62 Jo Martin Stigen, Th e Relationship Between the International Criminal Court and National
Jurisdictions: the Principle of Complementarity, Brill Nijhoff , 2008, p. 12.
General Introduction
is a recent development.64 Th e point of departure in the international criminal justice
system was retribution. In the preamble of the UNSC’s Resolution establishing the ICTY the importance of deterrence was mentioned: “believing that the establishment of an international tribunal and the prosecution of persons responsible will contribute to ensuring that such violations are halted and eff ectively redressed.”65 Nowadays,
deterrence is usually cited as the principal goal of the ICC.66
Deterrence pursues its objectives by issuing a threat of punishment. Th reat is a key factor in law. Some defi ne the obligatory part of the law as the threat-backed regulations.67 Deterrence considers individuals as the rational actors, who act based
on the assessment of the benefi ts-costs of their choices. From a utilitarian perspective, deterrence is simply ineff ective, for the person lacks the kind or degree of agency that makes the threat of sanctions an appreciable deterrent.68 Th e threat of punishment
works if some prerequisites exist. Th e most important condition is the possibility of imposing the punishment and the probability of carrying out the issued threat. If it is thought that the threat of a punishment is not carried out due to legal or practical obstacles, deterrence loses its eff ect. In addition, deterrence requires the quality of criminal regulations. Th e law should be understandable, accessible, and predictable for the public. Th e citizens of a society should be able to predict the consequences of their conduct.
Moreover, the punishment should be costly if it is imposed on a wrongdoer. Th ere is an assessment between the benefi ts and costs of the commission of a crime. If the costs do not outweigh the benefi ts, rationally a sanction does not provide a preventive eff ect. However, the cost arising from a punishment is not limited to the fi nancial or material costs. Reputation plays a role here. In particular, in the case of the most responsible criminals, economic deterrence analysis is less convincing, but the senior culprits might take into account the reputational eff ects of international indictment.69
For this reason, sometimes the mere threat of the criminal intervention, for instance by the issuance of an arrest warrant, works.70 A leader under an international arrest
warrant, even before the execution of the arrest warrant, loses to some degree his or her reputation.
Like other theories, deterrence has not been immune from critics. Th ese objections are not limited to the applicability of this theory in the international sphere, but in
64 Kare Cronin-Furman and Amanda Taub, ‘Lions and Tigers and Deterrence. Oh My: Evaluating Expectations of International Criminal Justice’, in William A. Schabas, Yvonne McDermott and Niamh Hayes (eds.), Th e Ashgate Research Companion to International Criminal Law: Critical Perspectives, Ashgate, 2013, p. 436.
65 UNSC, Resolution 827, 25 May 1993. 66 De Guzman, 2012, p. 48, see supra note 52.
67 Hart refers to two kinds of law: rules of obligation or law as orders backed by threats made by the State (see: Hampton, 1984, p. 210, see supra note 57).
68 Sloane, 2006, p. 27, see supra note 48.
69 Margaret M. De Guzman, ‘Giving Priority to Sex Crime Prosecutions: Th e Philosophical Foundations of a Feminist Agenda’, International Criminal Law Review, 2011, vol. 11, p. 524.
General Introduction
14 Intersentia
the context of international criminal justice, the critics are louder. Some question the effi ciency of deterrence. Bassiouni asserts that the deterrence assumption is one of the most questionable aspects of international criminal justice.71 It is argued that the
international culprits who have power are not aff ected by the threat of the imposition of international punishments. International punishments are not suffi ciently costly. In addition, the punishment of international criminals is an exception rather than a rule. Before the ICTY started its fi rst case, Meron had stated that deterrence would fail to prevent the commission of crimes because “prosecutions for war crimes on both national and international planes are so exceptional that criminals do not believe that they are likely to be prosecuted and punished.”72 Th is statement still seems to some
extent true.
Furthermore, the prospect of apprehending the persons wanted by the ICC is not bright. Rebels in the war-torn societies and the owner of State powers are hardly arrested. Th e situation of the LRA in Uganda and the Darfur situation are good examples. Briefl y, it is doubtful that the international criminals weigh the risk of prosecution against the benefi ts of their crimes. Here, selectivity matters and aff ects adversely the eff ects of deterrence for international criminal justice. If justice is done selectively, it highly reduces the preventive eff ects of the criminal law. In addition, the severity of the sentence is another factor that causes the strength of the deterrent eff ect.73
However, the imprisonment in Th e Hague is not a terrible situation.74 In Wippman’s
words, “the connection between international prosecutions and the actual deterrence of future atrocities is at best a plausible but largely untested assumption.”75 Th e Court
intends to prevent the commission of crimes, however, it seeks this goal in a more fl exible and long-term way, instead of immediate solutions. Th e Court’s intervention in on-going confl icts may fail to stop atrocities. Th e Court is not able to prosecute all crimes even if they fall within its jurisdiction. Deterrence works if it is followed comprehensively. Selectivity reduces the impact of deterrence. As a result, a diff erent theory is needed that is able to explain the selectivity of the Court, besides its deterrent eff ect.
Retribution and deterrence are all sought by the Court, but they fail to explain the selectivity of the Court. As a criminal tribunal, the Court has inherently retributive functions and aims. Retribution is an inextricable part of the ICC. Nevertheless, the Court needs a theory that is adapted to its selectivity. Classical criminal theories were formed at the domestic level, when a system like the ICC was not in place. Th e ICC-era needs a new theory. Expressivism seems to have such a capacity.
71 M. Cherif Bassiouni, Introduction to International Criminal Law, Martinus Nijhoff Publishers, 2013, p. 916.
72 Th eodor Meron, ‘From Nuremberg to Th e Hague’, Military Law Review, 1995, vol. 149, p. 110. 73 Cronin-Furman and Taub, 2013, p. 439, see supra note 64.
74 Sloane, 2006, p. 41, see supra note 48.
75 David Wippman, ‘Atrocities, Deterrence and the Limits of International Justice’, Fordham
General Introduction
3.2.3. Defi nition of Expressivism
Expressivism is one of the theories that have recently come to the center of attention of many scholars. Th e recent interest in expressivism is very visible in international criminal law. As De Guzman asserts, a growing number of scholars have turned to expressive theories to justify the international criminal justice system.76 Th is tendency
is detectable in the works of the international tribunals as well. For instance, the fi rst ICTY sentencing judgment declared that it sees “public reprobation and stigmatization by the international community, which would thereby express its indignation over heinous crimes and denounce the perpetrators” as an essential function of punishment.77
Expressivism adopts an instrumental approach to punishment and criminal law. Th e expressivism theory sees criminal punishment as a means for society to express its disapproval of some behaviors.78 Akhavan refers to the punishment of particular
individuals such as Karadzic or Mladic as “an instrument through which respect for the rule of law is instilled into the popular consciousness.”79 For the expressivists,
punishment is a purposive phenomenon. It has a function, and that is to convey a message. From such a perspective, law is considered to have ‘social meaning’ like actions.80 Law is for both the expression of valued social messages and for altering
social norms.81 For the expressivists, it matters that the public receives the message.
In this regard, the understanding of the audience is important.82 For this reason,
international criminal tribunals should ensure the widespread publication and dissemination of judgments to the broadest possible audience.83 In addition to the
dissemination, the Court’s products should be explained and clarifi ed well. Once, Moreno-Ocampo asserted that “the preventative impact of the Court will increase if issues are studied at university levels not only in aff ected communities but worldwide. In order to prevent future violence, politicians and members of the police and the military should be educated about the activities and decisions of the court.”84 Based on
this belief, he recommended that primary and high school students should learn about the fate of child soldiers. Publicity and outreach activities are highly advisable from the perspective of expressivism.
76 De Guzman, 2011, p. 524, see supra note 69.
77 ICTY, Trial Chamber, Drazen Erdemovic case, Sentencing Judgment, 29 November 1996, para. 65. 78 Cronin-Furman and Taub, 2013, p. 439, see supra note 64.
79 Payam Akhavan, ‘Justice in Th e Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’, Human Rights Quarterly, 1998, vol. 20, p. 749.
80 Cass. R. Sunstein, ‘On the Expressive Function of Law’, University Of Pennsylvania Law Review, 1996, vol. 144, p. 2022.
81 De Guzman, 2012, p. 32, see supra note 52.
82 Diane Marie Amann, ‘Group Mentality, Expressivism and Genocide’, International Criminal Law
Review, 2002, vol. 2, p. 118.
83 Sloane, 2006, p. 61, see supra note 48.
General Introduction
16 Intersentia
Th e message-oriented function of criminal law gives an important role to education. Expressivism seeks the prevention of crimes through education. Th is educational function of punishment is based on the idea that the most eff ective form of law enforcement is not the imposition of external sanctions, but the inculcation of internal obedience.85 Expressivism can result in deterrence, but over the long term. Th is theory
focuses less on the immediate instrumental value of punishment and more on the long-term normative values.86 Th is attitude is consistent with the permanency of the Court.
It makes the ICC a suitable forum for pursuing long-term objectives and eff ects. In light of expressivism, an expressive perspective has been incorporated in the deterrence theory. Th e threat-oriented deterrence is based on the imposition of the punishment that is painful. From a moral perspective, it is not consistent with the dignity of human beings. Hegel asserts that if we aimed to prevent wrongdoing only by deterring its commission, we would be treating human beings in the same way that we treat dogs.87
To overcome such a shortcoming, the ‘expressive deterrence’ emerged. Expressive deterrence believes that criminal punishment deters crime not because criminals fear the punishment, but because they fear the broader social consequences of a criminal conviction.88
Punishment should carry a message, and serve a communicative purpose. It should show the norms of a society and the prohibition of the violation of those norms. An ICTY Chamber in the Nikolic case asserts “the Tribunal and other international courts are bringing about the development of a culture of respect for the rule of law and not simply the fear of the consequences of breaking the law, and thereby deterring the commission of crimes.”89 Th e theory of expressive deterrence argues that international
criminal tribunals deter future atrocities by stigmatizing potential perpetrators as war criminals. In other words, trials must be seen as an eff ective means of stigmatizing.90
Other criminal measures such as investigations and arrest warrants should be seen from such a perspective too. Here, the education through criminal measures occurs. Th e mere expression of norms in books does not suffi ce. As some authors have maintained, sometimes the commission of international crimes is not prevented, since “there is no legal framework to prevent their commission or to prosecute them ex
postis. Th is is not a consequence of the absence of substantive criminal law but rather the absence of criminal procedure.”91 Expressivism adds an educational function and
vision to criminal law. Pre-trial, trial and post-trial measures such as investigations, prosecutions and punishments for the expressivists are tools for the norm projection. Such a function is more important where specifi c crimes refl ect a relatively recent
85 Sloane, 2006, p. 44, see supra note 48. 86 Ibid., p. 39.
87 Georg W. Hegel, Th e Elements of the Philosophy of Right (1820). 88 Cronin-Furman and Taub, 2013, p. 440, see supra note 64.
89 ICTY Trial Chamber I, Momir Nikolic case, Sentencing Judgment, 2 December 2003, paras. 89–90. 90 Cronin-Furman and Taub, 2013, p. 447, see supra note 64.
91 Göran Sluiter, Hakan Friman and Susannah Linton (eds.), International Criminal Procedure:
