Beyond the ICC: Repositioning the Core of International Accountability

The Assembly of States Parties of the International Criminal Court (ICC) is due this month to elect the Court’s third Prosecutor in what has been a complicated and controversial process.

And yet, when the Prosecutor is elected, that individual will become, in the eyes of many, a central figure in the universe of global justice. The ICC Prosecutor is one of the most visible individuals within efforts to hold perpetrators of genocide, crimes against humanity, and war crimes to account. The third Prosecutor of the ICC will be elected for a non-renewable nine-year period, following the term of current ICC Prosecutor Fatou Bensouda.

Though the figure of the ICC Prosecutor looms large in the imagery of international criminal justice, the ICC is but a small slice of a much wider struggle for accountability. The interest in the candidates, their politics and pedigrees, is a bit like interest in “starchitects” or Michelin-starred chefs. But just as most meals aren’t cooked by René Redzepi or Heston Blumental, it is worth recalling that the cases brought by the third ICC Prosecutor will represent only a small portion of the grim situations afflicting victims of atrocities worldwide – in other words, the ICC prosecutions are neither the only nor necessarily the main avenue of justice for these atrocities.

Most often, the fight for justice occurs a considerable distance away from the “Hague bubble” in which the priorities and perceptions of those most directly affected risk being relegated to the margins. This observation is not merely a conversation about “complementarity”, or the division of labor between international and national jurisdictions — even national courts are often inaccessible to survivors. Rather, it is a more profound reflection on meaningful victim-centered conceptions of justice that are often lost in institutional design and professional cultural sensibilities – an assertion that the views of survivors matter.

What Does Justice Mean to Survivors?

Recently, the four of us wrote about local, grassroots conceptions of international justice in an article in Human Rights Quarterly, entitled “What Justice for the Yazidi Genocide?: Voices from Below”. Against the backdrop of the ISIL genocide against Iraq’s Yazidi minority and calls from international and local actors for prosecutions before either the ICC, Iraqi courts, or other national courts, this article asked a seemingly simple, though largely unexplored, set of questions: what does this idea of “justice” mean for the survivors? Do they prefer retributive or restorative justice? Do they favor global or local justice? Do they share the perpetrator-victim narrative that is so often promulgated, or is theirs a more complex and nuanced story?

Between April and August 2016, our study undertook extensive field research, consisting of questionnaires supplemented by unstructured narrative-style interviews among more than 1,000 internally displaced persons in Iraq. The field research was in the largest refugee camps in Iraq’s Kurdish Region, primarily interviewing Yazidi survivors, both female and male. Additionally, fifty unstructured interviews were conducted with Yazidi female survivors of ISIL crimes. These interviews were open-ended and designed to provide respondents the space to share their stories and experiences in their own words.

The interviews revealed the survivors’ striking perceptions of justice. For them, justice primarily involved local issues, immediate concerns, their own agency, and prospects for a better future – features which are arguably more readily achievable through local restorative justice rather than global punitive justice. While some Yazidis preferred retributive models of justice, many more desired forms of justice which included a predilection for truth-telling and recognition, a need for healing and reconciliation, particularly among local communities and even neighbors. Financial assistance, whether posited in the form of reparations or not, was particularly important to female survivors, many of whom now head households or who bear primary responsibility for the upbringing of their children and the children of close relatives who have been left orphaned in the wake of the ISIL attacks on the Yazidis.

Who is at the Center of International Accountability?

This vision of accountability points to one of the gaps in the approach to criminal justice practiced among elites at international courts – its remoteness from the local realities that it purports to address. There is an intimacy to atrocities that is often invisible to the international and hybrid tribunals which focus on the emblematic trials of those accused of bearing the greatest responsibility for the crimes committed.

The women interviewed in our study frequently discussed the cruelty (or compassion) by which non-Yazidi friends, neighbors, random strangers, the next village, etc. treated them in their moments of vulnerability. These acts and omissions, not all of which attract criminal liability, continue to poison relations among communities and risk giving birth to new rounds of retributive violence. And while there may be strong grounds for looking to hold mid-level and senior ISIL commanders and funders responsible in the criminal courts, those women interviewed were more concerned about the responsibility of the thousands of lower-level foot soldiers and ISIL supporters at whose hands they suffered.

Informed by these interviews, our point is that there must be a redefining of who and what is at the center, rather than at the periphery, in the international justice conversation between those in positions of power and those at the margins—especially when the avowed purpose of accountability is empowerment through justice. Within this reframing, it is essential to highlight the gendered analysis not only of the crimes themselves, but also the perceptions of justice held by survivor communities – particularly in contexts where women’s voices are often marginalized. Without listening to those who are frequently ignored or whose voices are suppressed, it becomes impossible to facilitate the fusion of different elements into a coherent whole.

There are compelling reasons to focus on prosecuting those leadership figures most responsible for international crimes. High-profile international justice can counter cultures of impunity and contribute to deterring future atrocities. However, in contexts where intimate violations demand intimate solutions, international retributive approaches are likely to ring hollow.

***

As significant as the election of the third ICC Prosecutor is, it is important to remind oneself that most international criminal justice is happening and being imagined far from The Hague. The core is not a three-star Michelin restaurant — it is local canteen.

In Bertolt Brecht’s the Life of Galileo, one character proposes, “Unhappy the land that breeds no hero,” to which another replies, “No, unhappy the land that is in need of heroes.” As we look for a new hero in the person of the next ICC Prosecutor, we should remember that a bigger prize may lie in the building of an international justice that happens among the grassroots, where the local is at the center and the global at the periphery.

Image: Yazidi women hold up pictures of missed relatives during a commemoration ceremony in Stuttgart, southern Germany, on August 3, 2019. – The Central Yazidi Council in Germany commemorates the 5th anniversary of the genocide of the Yazidi in August 2014 when fighters of the Islamic State (IS) killed thousands of Yazidi in Iraq. (Photo by THOMAS KIENZLE/AFP/Getty Images)

 

About the Author(s)

David Matyas

David Matyas, MPhil (Oxford), BCL/LLB (McGill) is a PhD Candidate at the University of Cambridge, Lauterpacht Centre for International Law, where he is a Gates Cambridge Scholar. Follow him on Twitter at (@DavidgMatyas)

Payam Akhavan

Payam Akhavan, LLM, SJD (Harvard), is Senior Fellow at Massey College, a Distinguished Visiting Professor at the University of Toronto Faculty of Law and a Member of the Permanent Court of Arbitration.

Sareta Ashraph

Sareta Ashraph is a barrister specializing in international criminal and humanitarian law. She previously served as Chief Legal Analyst on the UN Commission of Inquiry on Syria. Follow (@SaretaAshraph).

Barzan Barzani

Barzan Barzani, Ph.D., is a former postdoctoral fellow at McGill University, Faculty of Law. A native of Erbil, Iraq, he has conducted extensive mixed-methods research in refugee camps in Kurdistan.