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Closing remarks by Gregory S. Gordon

Florence, 29 October 2017

Conference web page with materials | Film of Gordon's presentation of this text

At the last CILRAP conference in New Delhi in August, I spoke about the trilogy of CILRAP conferences from June through now – (1) Quality Control in Preliminary Examinations; (2) the Philosophical Foundations of International Criminal Law; and (3) Power in International Criminal Justice. Four months of some incredible gatherings about different aspects of ICL.

I have been struck by how appropriate the locations have been for these conferences. As the QCPE conference was about the inner-mechanics of ICL, and in particular the ICC. So, what better place to have the conference than The Hague, where the machinery of ICL operates on a daily basis?

New Delhi was an inspiring choice to hold the Philosophical Foundations conference given the deep philosophical/spiritual roots of India. Thus, we saw discussed the foundations of ICL found in the Ramayana and the Mahabharata (of which the Bhagavad Gita is a part). We discussed the great Indian emperor Ashoka’s renunciation of war. And the philosophy of Gandhi – informed by the Gita, whose life and teachings seemed to play such a large role during our deliberations.

And now we are in Florence to discuss “Power in International Criminal Justice”. Again, the perfect venue! Of course, when we think of Florence, we think of the Medici family. Much has been made of them as bankers. But they were a tremendous force in terms of political and institutional power, not just financial. They first attained wealth and political power in Florence in the 13th century through success in commerce and banking. Beginning in the 1400s, with the rise to power of Cosimo de’ Medici (or Cosimo the Elder), the family’s support of the arts and humanities made Florence into the cradle of the Renaissance, a cultural flowering rivaled only by that of ancient Greece. The Medicis produced four popes (Leo X, Clement VII, Pius IV and Leon XI), and their genes have been mixed into many of Europe’s royal families.

But the Medicis’ power was challenged here. With the rise of Savonarola, the Medicis were toppled. And with Savonarola being toppled, a new independent Republic of Florence was established. And Nicolo Machiavelli was made an official of this new republic in the early 1500s. He carried out diplomatic missions in this capacity and saw another side of power in this region – the brutal power-grabbing of Cesare Borgia (1475–1507) and his father, Pope Alexander VI, who were trying to bring a large part of Central Italy under their possession.

In August 1512 the Medici, backed by Pope Julius II used Spanish troops to defeat the Florentines. After the Medici victory, the Florentine city-state and the republic were dissolved, and Machiavelli was deprived of office. In 1513, the Medici accused him of conspiracy against them and had him imprisoned and tortured. And it was at this time, here in Florence, that he wrote the great treatise on power, The Prince. The descriptions within The Prince have the general theme of accepting that the aims of princes –to maintain power – can justify the use of immoral means to achieve this end.

Moving to more modern times – and connecting power to international criminal procedure – we also have the connection to the great jurist Antonio Cassese. He was the first President of the International Criminal Tribunal for the former Yugoslavia (ICTY), serving in this capacity from 1993 to 1997. After his tenure as President, he continued to sit as a Tribunal judge until February 2000. Cassese was appointed as the first President of the Special Tribunal for Lebanon (STL) in March 2009, resigning on health grounds and then being succeeded by our dear Judge David Baragwanath.

Antonio Cassese has always been a hero for me and provides a great model for judging in international criminal law.

So, again, Florence was an inspired choice for this conference.

As suggested by my previous remarks, I see this conference as part of a trilogy of CILRAP conferences this year, from late June through this weekend. For those of us who have participated in all three, this has been a very concentrated period of work! So, Morten has kept us busy!

But this intense period of work has been a blessing. Through the crucible of concentrated analysis of ICL in these past four months, we have been put through an analytical triptych of different angles of ICL – for the QCPE conference in The Hague, we were dealing with how the machinery of ICL works. In New Delhi, for the “Philosophical Foundations of International Criminal Law”, we considered, if you will, the “ghost in the machine”. And here in Florence, for this conference on “Power in International Criminal Justice”, we have been looking at who operates the machine.

So what have we learned about the operation of the machine? First, let me state how refreshing it was to have such an interdisciplinary approach to this topic. We have heard from anthropologists, sociologists, political scientists.

As with the previous conferences in this trilogy, the organization of the presentations has been extremely helpful in allowing us to understand the “topography” of this topic as well as its various manifestations.

We began with “Power in International Criminal Justice Institutions”. The first panel was on “Towards a Topography of Power in International Criminal Justice”.

Morten Bergsmo, who gave us a phenomenal conceptual overview of the problem – with helpful references to power as conceptualized by Nietzsche, Weber and Russell. And he made us understand how relevant this magnificent fresco is to our discussions here the past couple of days. I then provided a case study to help contextualize and instantiate his conceptual framework.

The second panel was on “The Relevancy of the Civil-Common Law Divide”.

Judge Marc Perrin de Brichambaut helped us understand a kind of power struggle at the heart of ICL – the push and pull between civil law and common law influences. It would seem there has been a kind of hybridization but, at the same time, civil law influences would seem to have come into the fore.

Alex Heinze helped us understand that perhaps we should not be so focused on the supposed divide between common law and civil law. Perhaps we need a new vocabulary and a new way of conceptualizing the predominance of this hybridization.

Our next panel was on “Professionals, Networks and Bureaucratic Domination”.

Mikkel Christensen began by analyzing Power, Position and Professionals in International Criminal Justice with a fascinating set of poles by which to understand the relevant relationships – (1) Bureaucracy v. Norms; (2) Academia v. Society; (3) Local v. Cosmopolitan; and (4) Law v. Politics.

Susan Lamb then gave a personal account of how power affects individual actors in ICL. She made us realize that experience, competence and talent can be trumped by sexism, national power plays and the vagaries of individual, irrational preferences by decision-makers.

Bill Wiley helped us see, through his experience with CIJA, that actors in ICL do not have to be limited to public institutions.

Kjersti Lohne’s talk on Power in the Institutions of International Criminal Justice reminded us of what the subtitle of this conference is about – “Towards a Sociology of International Justice”. Her tying the analysis we have seen so far to the discipline of sociology – in particular, a trenchant analysis of the work of Emil Durkheim as applied to ICL – was very illuminating.

The next panel dealt with Representational, Symbolic and Visual Power in International Criminal Justice.

Joachim Savelsberg’s paper on Representational Power in International Criminal Justice enlightens us regarding the power of one of the central actors in the ICL process – courts – in writing history through adjudicating ICL cases.

Barry Sander’s talk on International Criminal Justice and the Symbolic Power of the Anti-Impunity Mindset shows how complex measurement of ICL effects on society can be. Is ICL the ideal way of using resources for post-conflict societies?

Sarah-Jane Koulen’s presentation on Visuality, Power and Authority in International Criminal Justice brought home the idea that the affective power of ICL plays an important role in the actors who do the work of ICL. It is, after all, very much a human institution.

And Marina Aksenova’s Symbolic Expression at the International Criminal Tribunal for the Former Yugoslavia showed us the metamorphosis of representational power through the case study of the ICTY via the progression of: (1) the process of establishment; (2) institutional design; (3) rhetoric in judgments; and (4) its framing of its Failures and Achievements.

Viviane Dittrich captured a key epistemic aspect of power in ICL – the notion of memory. She explained that it is the fruit of a plurality of perspectives. And it is an organic, living thing. Who controls it is a huge portion of the calculus of who wields power in international criminal justice.

Our panel on State Power and the Autonomy of International Criminal Justice goes to the heart of what this conference is all about.

Judge David Baragwanath’s insights into International-Law Making on Terrorism: Structural and Other Power of Resistance was a clarion call to all the actors in this room to take action in terms of formulating an effective response to the crime of terrorism in ICL. This helps us conceive “power” in a positive way that can potentially engage and empower the necessary actors to solve a specific and incredibly destructive transnational scourge. Indeed, we should not just be talking about these problems but getting out there and acting on them.

Sergey Vasiliev’s paper Judicial Governance Entities as Power-Holders: A Sociological Inquiry into States’ Involvement in International Criminal Justice introduced us to the notion of “international judicial governance institutions”– what failures can be attributed to the Court and which can be attributed to international judicial governance institutions? The ASP at the ICC has let the Court down many times but States should take responsibility rather than blame the Court every time.

I would note that States set up international organizations as a framework to do their bidding. They are empty vessels, in this sense. But the very States that set them up often use them as a scapegoat for their own mis-, mal- or non-feasance within those organizations. So here, States have the court they deserve.

Marieke de Hoon’s contribution Diplomats as Legal Entrepreneurs uses the evolution of the crime of aggression to help us understand the array of actors in the process in terms of norm appliers, norm invokers, norm negotiators (diplomatic negotiators), and norm discussants.

Sara Paiusco and Jacopo Governa’s paper Is the European Union an Unexpected Guest at the ICC? extends the scope of actors we can identify as important players in the international criminal justice process. Their excellent joint presentation shed much light on how its priorities can often be in conflict with promoting ICL. And it can often be difficult for it to decide what its key interests are in furthering the ICL enterprise.

Mark Klamberg’s treatment of “hegemony” in ICL challenges us to understand the complex dynamic between individual agency and structural impact. Actors not only reproduce normative structures, they also change them by their very practice. This is a fascinating study in terms of realist v. liberal v. constructivist approaches to ICL.

Ðorđe Ðorđević on The UNDP and the Convening of Criminal Justice for Core International Crimes gave us an important insight into how an agency we do not normally associate with ICL, the UNDP, in fact, can have a large impact on the ground. SGD 16 – no development without peace/no peace without development – helps us understand how ICL is in its mandate, in fact. His description of Pathways for Peace – Inclusive Approaches to Preventing Violent Conflict sounds like a must-read.

Jackson Maogoto has given us the case study of the African Union and an insight into how, on a macro-level, international criminal law has arguably been an exercise in new-age-imperialism.

Mayesha Alam’s Agency, Autonomy, and Authority: The Role and Impact of Interactions with International NGOs on the International Criminal Court’s Operations gave us important insights into one of the key actors of ICL – NGOs. Their influence in terms of agency, authority and autonomy. But also delved into the meaning of “power” – with many helpful ways of looking at it, including rationalist v. constructivist and its multidimensional presence – power in, power over and power to.

Chris Tenove in The Agency of Victims: Empowerment and Disempowerment by the ICC reveals how complex the notion of victimhood can be. And is there a dynamic of domination and usurpation of the ICC in treating victims? Victims have an identity and existence beyond the ICC but the ICC does have an impact on their trajectory through the transitional process.

Emma Irving’s talk on social media and the democratization of ICL helps us understand how actors – the media, the public, victims, witnesses – gain access to ICL through a process of communications. Crisis mapping, perpetrator exposing, victim identification all play into this. Can social media users have an impact on case selection by the ICC Prosecutor, for example? Somewhat like Bill Wiley’s vision of non-public institutions impacting the ICL process, Emma Irving’s thesis makes us realize that other non-traditional actors can be an important part of the process through non-traditional means. Bill’s intervention after Emma’s talk seemed particularly appropriate and instructive, in that regard.

Chris Mahoney on Power External to International Criminal Justice was the perfect way to bookend the presentations. Chris explains why “The Cascade Capture” notion of Catherine Sikkink, that more prosecutions lead to better human rights compliance – does not work. “It’s not the quantity, it’s the quality”. For Chris, it’s about case selection. We need to bring back sovereignty as the main focus and concentrate on aggression. He gives a damning account of case studies in Rwanda, Sierra Leone and the ICC (including Sudan and Uganda). For the latter, complementarity gives weak States the power to avoid the ICC. We need to change the way we select cases. Aggression is not state-to-state – it is about States using proxies. We need to use aiding and abetting against these powerful states. And expand the use of universal jurisdiction.

In the end, I reckon we focused on four major themes – actors (judges, prosecutors, victims, diplomats), institutions (States, courts, IGOs, NGOs), processes (investigations, hearings, trials, sentencing, media communications) and social codes/traditions/affects (legal systems, rules, psychological orientation). The fascinating and complex interaction of these has led to rich and fruitful discussions over these past two days.

Let me suggest that further research could perhaps combine the inquiries of these past three conferences. As Ðorđe pointed out during the Q&A, the work of Antonio Gramsci has sociological and philosophical implications (“cultural hegemony” and how it is produced and reproduced by the dominant class through the institutions that form the “superstructure”).

Niklas Luhmann’s systems theory and the notion of autopoiesis. Combining the idea of autonomy and production, autopoiesis means, in short, the continual self-production of living systems.

Foucault’s notions of power – how do they jibe with Weber’s and Russell’s, cited by Morten, for example?

Fixing preliminary examinations can be a case study in understanding the interplay between actors and structures – personal constraints and material constraints, to put it in the terms of Mark Klamberg.

We began with Morten’s visual of the fresco. Let me end with a visual from a different and more modern artist, M.C. Escher. The fresco is here in this room in Florence. But there is a great museum dedicated to Escher’s art in The Hague, the seat of international criminal justice and where the first conference in this trilogy took place.

Escher’s most famous works are his tessellations and his explorations of infinity. Escher does a fantastic job of creating three-dimensional worlds all wrapped up in each other. Objects acting upon themselves into infinite cycles spinning out into the universe. How does that relate to our proceedings at this conference?

We are here to speak about power. But power is not external to us. It acts on us and in doing so changes us as we are ever in the process of changing it.

Remember that the many different actors in this room are not just reducing power to its intellectual essence in international criminal justice or chronicling its evolution over history. They are being affected by it.

So, let me return to the powerful message of Judge Baragwanath. You have the ability to affect how power affects you. And you have the power to make a positive difference in the operation of international criminal justice.

I hope that we all walk away from here mindful of the important issues that have been raised. We have the power to make positive changes. Thank you for all the great insights of this impressive gathering. I look forward to how they will ultimately develop the field of international criminal justice. Thank you to CILRAP and the International Nuremberg Principles Academy. And safe travels home.

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