[Sophie Rigney is a Senior Lecturer in Law at RMIT University and author of Fairness and Rights in International Criminal Procedure]
In the northern
summer of 2020, up to 26 million people took to the streets in the United
States to protest the murder of George Floyd by city police, and police
violence and carceralism generally. These were the largest protests in U.S.
history. Others who lived outside the U.S. also participated in local protests,
both in solidarity and to highlight the experiences of carceralism worldwide.
For many, this experience made us consider abolition and carceralism in news
ways. It made obvious the expansive networks of global carceralism, and
therefore the need for global carceral abolitionism.
During this time,
I was finalising my manuscript for a book
which considers the rights of the accused in international criminal law and
procedure. In this book, I am explicit about a desire to strengthen
international criminal law (ICL) through critically questioning but ultimately
improving its processes. This was a view I had held since my practice as a defence lawyer at the International Criminal Tribunal for the Former
Yugoslavia – an experience where, like many other defence lawyers, I had worked
‘within [the ICL] system’ in order to seek ‘its
improvement through critique’.
Yet writing at this time – while also witnessing the Black Lives Matters
protests, attending local vigils with my family, listening to the abolitionists
and activists who were doing so much work, and listening too to my colleagues
who were linking these protests to demands for structural change to address mass atrocities in Australia – I started
to question the normative position I’d held for over a decade. It became
obvious to me that ICL has many of the same problems we were protesting at the
domestic level. By the time I drafted the book’s conclusion, I wrote:
To achieve a truly transformative moment, those who think about international criminal law (scholars, advocates, and students) should be focused on ending atrocities and the conditions that give rise to them—rather than simply on ending impunity, or on strengthening criminal processes… Just as abolition discussions at the domestic level focus on what else is possible–community-building, properly funded education, robust healthcare, rehabilitation–international criminal law needs to consider more deeply what a world could look like without any need for international criminal law… How do we build that future?
In the article
published as part of our
recent JICJ symposium, I try to expand this idea by bringing
into dialogue critical approaches to ICL, and the work of carceral abolitionist
scholars and activists. I argue that ICL is a ‘carceral system, which responds
to mass atrocity by holding some individuals criminally responsible for these
events and then, generally, imprisoning those individuals’. ICL’s structural
conditions – its ideological grounding in neoliberalism and its relationships
to race, global capital, colonialism and imperialism – ensure that some are criminalised
and some are exonerated. Race, nationality, class, and gender are all powerful
determinants of who will be brought before international criminal courts and
tribunals. I argue that instead, we need an abolitionist movement for ICL. This
movement would ‘refuse imprisonment and policing as the main responses to mass
atrocity, and instead would seek to understand the social causes and conditions
that cause such mass atrocity, and also how (and why) criminal law has become
the preeminent ‘legitimate
hand of justice’’.
An abolitionist approach to ICL feels particularly
challenging at this time: both fraught, and urgent. For nearly a year, we have witnessed as an apparent
genocide in Gaza has been live-streamed. Day after day, we have watched this
violence progress and expand. One study published in The Lancet puts the death toll at 186,000 people: each of them
whole worlds. Seven months into the violence, the Prosecutor of
the International Criminal Court (ICC) announced that his office was seeking
arrest warrants for both leaders of Hamas and the state of Israel, for ‘war crimes and crimes against humanity committed on the
territory of Israel and the State of Palestine (in the Gaza strip) from at
least 7 October 2023’.
This turn to criminal law has been
welcomed by many international lawyers. Indeed, the situation of Palestine and
the ICC has long predated this current violence. In 2009, the Palestinian
Authority government lodged a declaration accepting the
jurisdiction of the ICC under article 12(3) of the Rome Statute, for ‘acts committed on the territory of
Palestine since July 1, 2002’. Three years later the ICC Prosecutor declined
jurisdiction, citing a lack of clarity around the status of Palestinian
statehood. In January 2015, the Government of the
State of Palestine lodged another declaration accepting the
jurisdiction of the ICC, this time over
alleged crimes committed ‘in the occupied Palestinian territory, including East
Jerusalem, since June 13, 2014’. It wasn’t until
February 2021 that the Pre-Trial Chamber I had confirmed that the Court could exercise its criminal jurisdiction in the
Situation; in March 2021, the Prosecutor announced the opening of
the investigation into the Situation in the State of Palestine. The appeal to
ICL in this case therefore spans fifteen years of requests by Palestine to the
ICC.
These Palestinian requests have been
tactical, undertaken both to seek
accountability for a range of apparent international crimes, and to bolster
Palestinian claims to statehood. Even those who are well aware of and engaged with all
the critiques of ICL (particularly the critiques from TWAIL and Marxist
perspectives) have argued that in this case ‘the ICC is the
institutional door that has been forced ajar, and so it is imperative to think
about what space it may open for anti-colonial forms of ‘principled opportunism’.’ There is therefore a
suggestion that ICL is a tool that may be used in a fight for liberation and
justice, and to ‘feed into the more radical transformations of social, economic
and ecological relations that are needed for settler-decolonisation and
liberation of Palestine’.
This appeal to ICL in the situation in Palestine is understandable. The tactical use of ICL articulated above is compelling; and while I might disagree on the use of a carceral system for the purpose of liberation, I still have great respect for the activists and scholars using whatever mechanisms they can muster. I agree with Michelle Burgis-Kasthala and Barrie Sander when they emphasise that scholarly critiques should ‘not slide into criticism of Palestinian choices about their own engagement with ICL’: it is an important aspect of self-determination that Palestinians are able to articulate their legal claims. More recently, witnessing the horrors of Gaza, we want to make them stop – and ICL has felt like one of the very few levers we have at our disposal. Moreover, many of us have felt a strong desire to see punishment meted out against those causing the violence. I have felt this myself: a sense that perhaps I could be an abolitionist for ICL, except in this case. This case feels like the exception to any theory; the limits of abolitionism feel exposed.
Such
exceptionalism is familiar to abolitionists, who have always had
to hold steady against demands that carceralism be applied in ‘remarkable’
situations. But in such
difficult cases, abolitionist Mariame Kaba beautifully articulates an aspiration: can we ‘challenge our
punitive impulses, while prioritizing healing, repair, and accountability’?
Because the
situation of Palestine is a paradigmatic case for showing the structural
conditions of ICL, and how problematic these are. First, as
I have written elsewhere,
the articulated
aims of ICL are not being achieved. We have been told for decades that ICL has
a ‘deterrent’
function, a ‘socio-pedagogic’
function, that it is integral to an international
rule of law. Yet in the case of Palestine, we see
that all this is a fiction: those who ordered the violence, and those who have
carried it out, have not been daunted by potential ICC prosecutions. While
there may be some concern about ICC prosecutions and a perception that the ICC
poses a threat
to Israel, even the definitive step of the application for arrest warrants has
not stalled the violence. At most, the application seems to have somewhat
curtailed the international movements of some state officials
(although other
travel is still occurring). ICL simply is not able to end
the atrocities, which must be our primary objective.
Secondly, the case of Palestine clearly exposes the selectivity of ICL. This has
been obvious in the fifteen years of Palestinian appeals to the ICC, where
there was no progress in a case. Against that backdrop, the slowness of
prosecutions for Gaza acutely reveals how ICL brings some situations into its
remit but delays, denies, and obfuscates other situations. Between 7 October 2023 and the filing of applications for arrest
warrants on 20 May 2024, there were criticisms that the Court was taking too long to act. As one example, over 200 scholars expressed their ‘grave concern’ over the conduct of the Office of the Prosecutor of
the ICC, in particular about ‘its adherence to impartiality and non-discrimination’, and
‘considerable delays, lack of responsiveness, as well as policies
of understaffing and under-resourcing’ of the Situation in Palestine. In
doing so, the letter demonstrates the biases and selectivity of ICL (even if
there is dissent on some of the details).
The letter is also revealing as another example of the power of the appeal to
ICL: again, these are scholars from the TWAIL tradition who are aware of the
critiques of ICL, yet are demanding more ICL, rather than less.
So
here are our challenges. We might demand the Court to act, but it does not seem
to matter much whether or not it does: the violence continues, unabated. When
the Court is slow to act, or if it does not act in any meaningful way, it shows
the selectivity of a system which criminalises some and exonerates others on
the basis of determinants such as race and nationality. Yet if the Court does
act, those critiques are not disproven. The Court remains selective,
and is still enmeshed in power structures.
We see this selectivity of ICL in action through the
arrest warrant application itself. The crime of genocide is not alleged, though
many believe there to be sufficient
evidence and the International Court of Justice has ruled it
to be ‘plausible’
that genocide is occurring. There is no allegation of the crime against humanity of
population transfer or forced displacement; no allegations specifically relating to the
apparent targeting of hospitals, medical personnel, journalists, and aid workers; no allegations specifically relating to the taking of territory or the destruction of civilian infrastructure. There are no allegations of
gender-based violence relating to the lack of anaesthetic available for c-sections, premature delivery of
babies, and other issues faced specifically by pregnant, postpartum and breastfeeding people.
Allegations of torture and sexual violence have been levelled against the leaders of Hamas
but not of the state of Israel (I am grateful to my colleague
Katherine Fallah for articulating some of these to me in private discussions).
While further charges may be added later (and it is an understandable
prosecution strategy to commence with a limited focus), the selectivity of
these allegations shows ICL exonerates and criminalises in particular ways.
So, then, what of the
future? Where to go ‘after’ this ‘critique’ of ICL? I cannot imagine that ICC prosecutions will bring a lasting peace
and liberation to Palestine. The threat of prosecutions has not ended the
atrocities. The conditions that have given rise to the atrocities still exist.
This will not be changed by imprisoning some individuals for these widespread
atrocities. Indeed, such imprisonment may only cause more harm, and cycles of
violence and trauma to perpetuate. So how do we build a future where there is peace,
prosperity, care, and freedom in Palestine?
Again, we can take some guidance from domestic abolitionists, who point to ‘transformative justice’ as an alternative
to carceralism. Transformative justice aims to transform the conditions that
permit or encourage harm; to ‘create responses to violence that do what criminal punishment
systems fail to do: build support and more safety for the person harmed, figure
out how the broader context was set up for this harm to happen, and how that
context can be changed so that this harm is less
likely to happen again’. Critique is not
something that ends here – there is an ongoing critique and imagination, which
enlivens other possibilities for action and accountability. A transformative justice in Palestine will require
(amongst other things) rapid military divestment, careful demobilisation of
troops, debt cancellation, land rights, Palestinian self-determination, and
increases in aid and worldwide mutual care. This is a broader justice than
carceral ICL can provide.
International law
has been described as a discipline of crisis, and ICL has rightly been critiqued for its emphasis
on acute violence rather than slow violence. Not infrequently, the moments that erupt into crises
have previously spent years (or decades or centuries) developing as slow
violence or structural violence. We saw this in 2020 with Black Lives Matter,
and we see it now with the atrocities occurring in Gaza; both acute situations
which flared from long histories of oppression and violence. If we are able to
attend more carefully to the structural – to the reasons why atrocities are
permitted or encouraged to occur – we might transform the world. It is my hope
that we see a free Palestine alongside a more just world, and that we can bring
this into being without the carceral violence of ICL.
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