On democracy and international criminal tribunals

Over the last couple weeks I’ve been editing the article series Peace vs. Justice: the International Criminal Court and Its Alternatives, along with my Trudeau Foundation colleagues Simon Collard-Wexler, Scott Naysmith, and Rosalind Raddatz. I quite like how it’s turned out. The first week is heavy on the ICC, and the second week focuses on ‘alternatives,’ from the hybrid tribunal in Sierra Leone to the community-based struggles for justice in Northern Uganda. I could go on about the series, but why not just take a look at it yourself, starting with this introductory post?

In the last couple weeks I’ve also read two interesting and very different takes on the relationship between democracy and international criminal tribunals–an issue that is central to my doctoral dissertation. Last year, Lara Nettelfield published Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State (Cambridge UP). Lara, who I met while she was at Simon Fraser University’s School for International Studies, puts forward a nuanced case that the International Criminal Tribunal for the former Yugoslavia advanced democratic developments in Bosnia. She bases this claim on an impressive battery of research methods, from opinion surveys among soldiers in the Bosnian army to extended participant observation with civil society groups–including a bus trip with the Mothers of the Enclaves of Srebrenica and Zepa to demonstrate in The Hague.

Early evaluations of the ICTY impact on Bosnia were pessimistic, based as they were on the period when the court was its weakest and most dysfunctional, and when the context in Bosnia was at its most hostile to democratic processes. By looking at the ICTY over a longer period of time, Lara finds that its reputation and legitimacy improved as publics became better informed of its work and less convinced of its partiality. She also shows how citizen associations and survivors drew on ICTY norms, resources, and judgments, to pursue accountability domestically and internationally. The families of victims of the Srebrenica massacre sought accountability and reparations from  the UN and The Netherlands, for instance. The ICTY was particularly important in the early years after war, Lara points out, when it created a  space to discuss accountability  in the face of silence and inaction from domestic authorities. The Tribunal therefore catalysed democratic engagement, particularly through legal mobilization, even when this wasn’t an intended consequence. In fact, she argues, some of the most important legal mobilization by civil society groups came about because of the perceived shortcomings of the ICTY.

One of the big debates about international criminal tribunals is whether they should try and narrow their function — seeking criminal trials of a few senior leaders — or try to achieve a wide range of transitional justice goods, from telling authoritative histories to promoting reparations for victims to deterring future crimes. Interesting, Lara argues that international criminal tribunals should focus on the narrow job of seeking criminal accountability, but that in doing so they can have a modest but positive impact on wide range of democratizing processes.

Have you had the experience when you read the title of a book or paper and your heart seizes, because it appears that the author has just published your own research and rendered it a superfluous? That happened when I saw Marlies Glasius very recent paper, Do International Criminal Courts Require Democratic Legitimacy? in the European Journal of International Law. Of course, as is often the case, Glasius’ paper turned out to be a helpful interlocutor rather than a duplicate.

Glasius, who teaches at the University of Amsterdam and who wrote an interesting book on global civil society and the International Criminal Court, claims that there have been three main lines of criticism of international criminal justice:

1. whether individual criminal justice is an appropriate response to mass violence in all societies (the ‘it’s just liberal, Western, and/or retributive justice’ debate);
2. whether the pursuit of such justice in ongoing conflicts might not threaten peace processes and exacerbate violence (the ‘peace vs. justice’ debate);
3. whether international criminal processes can be considered legitimate given their lack of consultation and engagement with those populations affected by the crimes being prosecuted.

Glasius calls this third critique the problem of democratic legitimacy. She not only shows that scholars and activists have raised the problem, but she shows how different tribunals have responded to it–by better spreading information about the tribunals and their work to affected populations, by creating opportunities for court staff to ‘hear’ the voices of victims of mass crimes, and (at the ICC) by including victims’ representatives in trial processes.

In short, Glasius does a good job of showing that international criminal tribunals (ICTs) suffer from  a perceived legitimacy deficit. But in what ways is it a problem of ‘democratic’ legitimacy? Surprisingly, she doesn’t ask that question. It appears that she takes a lay person’s understanding of democracy – that a law or process is democratic if people give assent to it directly or through their elected state officials. On this account, clearly, ICTs will fail. In many cases, an ICT is needed because there is no democratically-legitimate state government to make rules. But there are other ways that rules and institutions can gain democratic legitimacy — in particular, through stakeholder consultation, through open and transparent debate, through mini-publics and polling, and so on. Moreover, unlike Lara Nettelfield, Glasius doesn’t look at what contribution an ICT could or should make to democracy. (Granted, she wrote a paper and not a book, so one can’t expet her to cover everything.)

In fact, rather than look at democratic legitimacy, Glasius spends the majority of her paper looking at understandings of legal legitimacy. She provides a very thoughtful gloss on different legal theoretical approaches to criminal law, and identifies principles that could be applied to ICTs to make them more responsive and legitimate with the people they affect.  It’s not really about democratic legitimacy at all, but it’s an interesting read.

Like Nettelfield, Glasius takes seriously some criticisms of the relationship between tribunals and victims and other affected populations. Both see the value in the shift toward greater communicative engagement by tribunals in situation countries, which began in the late 1990s when the ICTY recognized the importance of public outreach. Both recognize that ICTs can help open public debates on justice in countries which might otherwise have left those debates closed. While Nettelfield calls for ICTs to do their narrow functions well, and for scholars to attend to the modest improvements that ICTs can make in the larger political and legal ecosystem of democratization, Glasius proposes that ICTs do a better job of listening and responding to affected populations and victims.  Indeed, she argues that input could be formalized in some respects, such as by creating penal boards of victim and civil society representatives, to give advice on sentencing options. Thus, while Glasius concludes that ‘there is no viable argument that would support requiring a direct democratic basis for international criminal courts,’ she proposes courts that are more politically- and socially-engaged in societies. I suspect that Nettelfield would say: ICTs must be careful not to take on a role that is too political, or their legal legitimacy — and therefore their use as a resource for legal and political mobilization — might be undercut.

Food for thought for my upcoming fieldwork in Uganda and Kenya.