Power in International Criminal Justice: Towards a Sociology of International Justice

International criminal justice has been subjected to growing criticism. This trend is not only a reaction to the performance of international criminal justice actors. It also reflects a sense that the discipline has come of age after two decades of comprehensive international practice. The field is now sufficiently mature – the institutions have had adequate time to grow into their mandates and roles – for scholars to forge a proper sub-discipline of sociology of international criminal justice where the behaviour of relevant institutions and other actors is analysed.

Sociology of law has made indispensable contributions to our understanding of the administration of justice, law-making processes, and the relationship between law, justice and power in several domestic legal systems. Such knowledge-generation can increase acceptance of a legal system’s role, expose its weaknesses, and drive improvement. A responsible discourse invites greater transparency that can, in turn, foster higher standards of integrity in international criminal jurisdictions, enhance quality in their recruitment, and increase institutional legitimacy. It may also generate information of significance for non-States Parties continuing to consider their position outside the Statute of the International Criminal Court.

The research project ‘Power in International Criminal Justice: Towards a Sociology of International Justice’ focuses on the relationship between power and autonomy in international criminal justice. Power plays a role because sovereign States and non-governmental organisations are the main enabling stakeholders of international criminal jurisdictions, and because human beings fill the institutions’ leading positions. The justice dispensed by the jurisdictions cannot be independent, impartial and otherwise fair without sufficient autonomy. The project analyses the design and behaviour of institutions of international criminal justice and key actors in their orbit, by that identifying patterns in the arrangement of power, its distribution and reproduction, other relationships of power, actors’ capacity and intent to use their power, and possible abuse of power. The project explores inquiries such as, but not limited to, the following:

1. What are the key interests of States and civil society actors with regard to international criminal jurisdictions? How are these interests advanced? To what extent do these interests concern impunity for core international crimes (crimes against the peace, war crimes, genocide, crimes against humanity and other serious violations of international humanitarian law)? How do we distinguish between realist self-interest and normative advance in international institutions’ efforts to confront impunity? Are these interests changing and if so, what is driving this change?
   
   
2. To what extent do actors internal to international criminal jurisdictions reflect, advance or impede efforts to confront impunity, and why?
   
   
3. What has been the role of core social networks in international criminal justice, in particular networks of key individuals in international criminal jurisdictions and the negotiations to establish them, especially networks that have survived since the mid-1990s? How transparent is the power exercised by core networks in international criminal justice?
   
   
4. The tension between Common Law and Civil Law approaches in international criminal justice has been much discussed, particularly in the context of legal requirements of modes of liability and procedure. Is this tension real or has it been used as a proxy conflict or shield to conceal power relations and competition? Is the Common Law v. Civil Law divide simply a way for governments or networks to pursue their interests by working with a smaller group of like-minded actors (rather than, for example, the entire WEOG group of States)? How has this divide affected the power of the African Union and European Union in international criminal justice?
   
   
5. Have the requirements of equitable geographical representation been authentically advanced in international criminal jurisdictions? How have they affected the balance between persons from mainly Common Law and Civil Law countries? Can more precise topographies of power within international criminal jurisdictions be created by adding layers of information on top of basic staff composition statistics concerning, inter alia, who holds actual management positions, who is assigned to which sections and cases and how, who argues policy questions before appellate bodies, who examines key witnesses, and who attends senior management decision-making processes? What examples have the presidents and prosecutors of jurisdictions set in terms of personnel selection?
   
   
6. The sociology of tribunal design: For example, there seemed to be disagreement on several issues during the negotiation of the Statute of the International Criminal Court (‘ICC’) between Common Law and Civil Law countries. It became important to harness support in the Latin-American, MENA and African groups of States. To this end, what role did key diplomats in these groups play, and what were their relationships to States or groups of States? How were these roles provided and employed, and by whom? How did these actors subsequently use this clout? Which States were most effective in advancing their interests via engagement with, and promotion of, specific actors in negotiations, and, of which States were such actors’ nationals? Was there instrumentalisation of such actors?
   
   
7. Have the non-governmental organizations been independent vis-à-vis donor States and key individuals within international criminal jurisdictions? Have they acted on obtained information about alleged abuse of power and misconduct within international criminal jurisdictions, and how has their willingness to act informed their continued access to information?
   
   
8. Are there examples of defendants or other actors who have wielded such power that they successfully influenced key international criminal jurisdiction personnel (including judges and prosecutors) through various forms of conscious or sub-conscious pressure or inducement? Is there any indication that, for example, defendants Ante Gotovina or Vojislav Šešelj exercised such power, and solicited bias, in cases against them at the ICTY?
   
   
9. Questions concerning host countries and international criminal jurisdictions: What is the nature of this relationship? What preference, if any, is observed for nationals of host countries as personnel within institutions? What career histories are observed amongst these personnel and what level of transparency is observed in processes where local nationals are hired, particularly where hiring is specific to senior positions? Are there examples of co-operation between host country actors (including the government, individuals, and academic institutions) that enhance or mitigate host country power at the expense of other legitimate interests?
   
   
10. What relations have judges and state actors had at international criminal justice institutions, and how does this affect impartiality? The compelled departure from the ICTY of Judge Frederik Harhoff, due to an alleged lack of perceived impartiality, has received considerable attention. What, if anything, do such cases tell us about power relations? Are there judges of international criminal jurisdictions who enjoy or have had such close relations with governments in their capacity as judges that they would not pass the test of perceived impartiality?
    
    
11. How does the power exercised in international criminal jurisdictions over case assignment or other interests relating to judges affect independence and impartiality? Have outgoing presidents exercised power to influence the nomination of a successor judge from their home state (or state of nationality)?
    
    
12. What is the selection process for international prosecutors and how has it changed from tribunal to tribunal? Who promotes the idea of particular candidates, how, and what tends to be the role of civil society groups? For example, who proposed the first ICC Prosecutor, who drove his campaign forward, and what happened to these individuals or groups? What was the role of the Coalition for the International Criminal Court and the President of the ICC Assembly of States Parties?
    
    
13. What are the main questions of power and autonomy in the processes to establish international prosecution offices? For example, considering the ICC Office of the Prosecutor, why did the first ICC Prosecutor not adopt the draft Regulations or Code of Conduct of the Office of the Prosecutor? Who controlled the early recruitment practice of the Office? Was there a lack of equitable representation in some divisions? Why was the Jurisdiction, Complementarity and Co-operation Division created when this entity had not been approved by the Office’s first budget? Were applicable considerations of conflict of interest and separation of powers given normal effect in transfers of key personnel from the prosecution to other Court entities?
    
    
14. Which individual actors have profited the most from core international crimes jurisdictions? Can we see patterns in who has gained in material, social, diplomatic, professional and academic terms?

The research Project Committee is composed of Professor Morten Bergsmo, Professor David Cohen, Associate Professor Mark Klamberg, Dr. Kjersti Lohne, Dr. Christopher Mahony, Mr. Klaus Rackwitz, Professor Usha Tandon, and Associate Professor YI Ping. The project is co-organized by CILRAP, Delhi University Campus Law Centre, the International Nuremberg Principles Academy, the Department of Criminology and Sociology of Law of the University of Oslo, Peking University International Law Institute, the HANDA Center for Human Rights and International Justice of Stanford University, and the Stockholm Centre for International Law and Justice of Stockholm University.