Symposium on Power in International Criminal Justice

Anthology | Conference programme, concept, films and podcasts | Film of conference keynote | Integrity Symposium

The British philosopher Bertrand A.W. Russell (1872-1970) wrote that “the fundamental concept in social science is Power, in the same sense in which Energy is the fundamental concept in physics) (in his monograph Power, 1938). The question posed by this symposium is therefore: Who wields power in and over international criminal justice? This would seem to be an obvious question to ask in an emerging sub-discipline of sociology of international(ised) criminal jurisdictions. A sociology that does not dare to ask this question may not provide us with knowledge and insights that can help to improve the system of international criminal justice. Some power-holders will not like the question, but holding up a mirror to public justice institutions should not seek to instil contentment and complacency in justice actors or gratitude towards the one who holds the mirror.

In his 1965 sociological classic The Hidden Society, Vilhelm Aubert (1922-1988) observed that “society continuously describes itself, but never fully, and rarely to the entire satisfaction of a scientific observer. Thus, it is always a task of sociology to reveal the hidden society to its members”. He warned that if sociology was reduced to the power to predict, “an intimate alliance between sociology and all existent power-elites would very likely emerge”.

This online symposium considers different layers of the topography of power in international criminal justice, such as high officials of international criminal courts and diplomats representing their States Parties (Bergsmo and Gordon). It also considers other constellations and expressions of power in international criminal justice, including the power of states in norm-creation (Baragwanath and de Hoon) and when they act together (Vasiliev and Governa and Paiusco); the power of non-state actors such as non-governmental organisations and their polyhedric roles (Alam and Wiley); representational power in (Koulen and Aksenova), and cultural power of (Savelsberg), international criminal justice; the power of narratives by (Klamberg and Osasona) and about (Maogoto et al.), and concepts of (Sander), international criminal justice; the redistributive power of social media in international criminal justice (Irving and Makraiová); and power as it relates to the Common–Civil Law divide (Heinze). There are also significant barriers or ceilings to power in international criminal justice, such as those faced in developing countries (Djordjević and Mahony), by women (Lamb), or by victims (Tenove). The sociologists Lohne and Christensen place the discussion on power in international criminal justice in a wider and dynamic social science context.

Bergsmo’s text zooms in on the contributions by several public figures in international criminal justice (such as Philippe Kirsch, Elizabeth S. Wilmshurst CMG, Silvia A. Fernández de Gurmendi, Zeid Ra’ad Al-Hussein and Sabine Nölke), relevant commonalities, and perceived relations with the British and Canadian foreign ministries. He analyses the role of informal social networks in international criminal justice, drawing on authors such as Anne-Marie Slaughter, Bruno Latour, Mikael Rask Madsen, Shai Dothan and Sergio Puig.

Based on the writings of Oscar Schachter and Claus Kreß, Bergsmo asks thought-provokingly whether informal social networks have had more power over the system of the International Criminal Court (‘ICC’) since its establishment in 2002 than the ‘invisible college’ of international criminal lawyers (Schachter referred in 1977 to the group of “international lawyers who are acting as nonofficial experts and not as advocates of a government or special interest” as an ‘invisible college’). Bergsmo suggests that it may be revealing that this rhetorical question “can even be meaningfully put”. He writes that the ICC Independent Expert Review shows incision in the manner it scratches the surface of power and calls for the “diffusion of the power” held by individuals within the Court (para. 248 of its final report). He argues that the ‘invisible college’ should welcome further descriptive socio-legal analysis of these issues, which “may help us to walk less in circles, and not to waste time on remedies that are based on the wrong diagnosis”.

Bergsmo also warns that there “are risks for the ICC if the Court is allowed to become a Golden Calf around which a few individuals dance in search of position or promotion”, and that “the use of informal social networks necessarily entails risks for states and international criminal courts” – it may encrust the soft power of states that engage in such practices. This sensitivity is heightened by the “rise of China and India” (who are not only observant witnesses, but may wish to replicate such practices in and around multilateral organisations). It would be naïve not to expect that detractors of the ICC will use any perceived sign of compromised independence against the Court and its main aims.

This symposium is developed by the Centre for International Law Research and Policy (CILRAP), in co-operation with the contributing authors. Initially, the symposium includes chapters in the first edition of the anthology Power in International Criminal Justice (edited by Morten Bergsmo, Mark Klamberg, Kjersti Lohne and Christopher B. Mahony, Torkel Opsahl Academic EPublisher (TOAEP), Brussels, 2020, 884 pp.) as well as films of oral presentations by the authors at the conference ‘Power in International Criminal Justice: Towards a Sociology of International Justice’ held in Florence on 28-29 October 2017, co-organised by CILRAP and the International Nuremberg Principles Academy (the latter has no responsibility for the anthology or this symposium). CILRAP invites further submissions to this dynamic symposium. Admitted texts will first be published either in TOAEP’s Policy Brief Series (shorter texts, between 3,500 and 4,200 words) or the Occasional Paper Series (in which case it will subsequently appear as a chapter in the next edition of the anthology), and then be added to the online symposium.

Power in International Criminal Justice