By Jens Iverson, Leiden University
I’d like to thank Dov Jacobs for allowing me to post on his excellent
blog.
This essay is, at heart, a plea for a more open
discussion of the tradeoffs inherent in pursuing international criminal justice,
particularly with a limited budget. Too
much time is wasted in unsubstantiated allegations of politicization and
unsatisfying invocations of simply following the evidence. We are stuck in a rhetorical trap that
ill-serves the goals of making and explaining our value choices and critiques.
I’ve noticed a pattern
in responses from the Office of the Prosecutor (OTP) of the International
Criminal Court. For example, when the
particular charges chosen by the OTP in the first trial are questioned, the OTP
will emphasize that they follow the lead of the evidence. When members of only one side of a conflict
are charged, the OTP will argue that to charge leaders from both sides, when
that is not where the evidence leads, would be a political choice – and they
must avoid politicization. When the
question of whether there is a tension between prosecution and peace arises,
OTP spokesmen will typically point to the UN Security Council’s power to pause
investigation and prosecution, indicating that political choices should be made
by the Security Council, not the OTP.
When it’s pointed out that every situation country is in Africa , the response is much the same as to the question
about refusing to “balance” prosecutions on both sides of a conflict – the
Prosecution will not “balance” their work by opening an investigation elsewhere
if that is not where the evidence leads.
The OTP will not be politicized.
It will follow the law.
I am sympathetic with
the OTP’s rhetorical approach on the issue of politicization. This post will not follow the common
“critical” approach in which, in the name of truth-telling, the hidden politics
of a seemingly apolitical framework (such as the universality of human rights
or the rule of law) are cleverly revealed.
While I hope the discourse regarding the choices of the OTP changes, if
anything, this post is “anti-critical” – rather than seek to expand the realm
of politics to cover the entire field, I suggest that it would be more helpful
in the Pragmatic sense, more human, and perhaps more honest, to keep both
politics and law in their respective corners when possible and instead admit
other explanations and criteria for the OTP’s actions. It may seem flippant to compare the weighty matters
of international criminal prosecution to, for example, performance art, but I
am not trying to be flip. It may seem
overly grand to compare the selection of criminal charges to the choices
different cultures make over history, but again, I am trying to be helpful, not
grandiose.
What is needed, I
suggest, is a conversation where those interested in the OTP’s decisions can
discuss them without falling into an artificial dichotomy where everything is
either political or legal, with no room for additional criteria to be
considered or applied.
