Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO MUSIC]

Janet: 00:27  All rise. Hi Steph.

Stephanie: 00:31  Hey Janet.

Janet: 00:32  So it’s this week. Karim Khan is taking over as the third prosecutor of the International Criminal Court. Fatou Bensouda is bowing out. And after your interview with her, where she was really stalwart and really absolute about her lack of politics, we thought that we’d inject some more politics back in and consider what kind of an ICC we have right now.

Stephanie: 00:51  And we’ve had this devastating report set up by the states, the Independent Expert Review, which has pointed to many issues with the court and the way it functions, including the Office of the Prosecutor. So many are wondering how those recommendations from that review are going to be implemented.

Janet: 01:07  And we have these huge investigations which have been started. Israel-Palestine, the biggest hot potato that Karim Khan inherits, plus Afghanistan, really wide-ranging, but which got Fatou Bensouda into trouble with the U.S. authorities.

Stephanie: 01:20  Not to mention that she opened Ukraine. She opened Nigeria. Both are still kind of unfunded. There is a Georgia investigation that is going nowhere after years, if you believe the Georgian activists.

Janet Anderson: 01:34  And the state funding crisis has continued for several years. There’s been zero budget increases. And maybe there’s still diminishing, maybe still there, unhappiness from African states, some of whom threaten to withdraw because of various issues at the court.

Stephanie: 01:50  So we’ve invited some guests to give us an analysis of the current state of health of the ICC. And we have Diane Orentlicher with us up first. Hi, Diane.

Diane Orentlicher: 02:00  Hello.

Stephanie: 02:01  Diane is a professor at the American University in D.C., a bit of a hero of mine because she writes lots of books about the ICTY, which I love to hear about. And we asked her because we also looked up who was in Rome at the ICC Rome Conference, setting up the famed Rome Statute of the Court. She was part of the Bosnian delegation at the ICC founding conference. So, yeah, the first question is, what is your pronouncement of the state of health of the ICC at the moment?

Diane Orentlicher: 02:34  Well, obviously, the ICC has always faced some formidable challenges, but it’s really coming through a period where it’s faced unprecedented challenges, including a really extraordinary and shameful attack by the previous U.S. administration against the court and its prosecutor. It’s also faced notable setbacks in recent years, including the collapse of some high-profile cases. But it’s also seen important achievements. And I think it’s important not to lose sight of that as we talk about some of the challenges that it faces. The confirmation of the Trial Chamber’s conviction of Bosco Ntaganda a couple of months ago for atrocities committed in the DRC, the conviction of former LRA commander Dominic Ongwen shortly before that — along the way to those important landmark judgments, it has really elevated global attention to some important principles and norms and atrocities, including the abominable crimes that children in armed conflict suffer, crimes of sexual violence, crimes against cultural heritage. The Afghanistan prosecutor has really contributed an enormous amount by elevating global attention to and awareness of those kinds of crimes.

Janet Anderson: 03:59  And also joining us as a guest from Geneva, where he’s busy with the International Law Commission, which is in fact a subject of a podcast that we’ve got coming up soon, is Dire Tladi. Hi, Dire.

Dire Tladi: 04:11  Hi, how are you?

Janet Anderson: 04:12  Very well. Now, Dire is also a professor of international law at the University of Pretoria. I’ve seen Dire on a ton of panels over the years as the senior legal advisor to the South African government. And I asked him to join the podcast because he has these great insights into the relationships between states and ICC prosecutors. How do I know that? Well, actually, I read his novel, Blood in the Sand of Justice, recently. And okay, it’s fictional and it has loads of dead prosecutors, which we don’t have in real life, and quite a lot of sexual stuff as well, which we might have or might not, I don’t know. But it shows you how the funding states, you know, the big ones and also the P5 members, those of the UN Security Council, how maybe behind the scenes they play particular roles. So I’m going to ask Dire how true that all is. But let’s just start with, Dire, you’ve heard what Diane had to say. What’s your assessment of the health of the ICC at the moment?

Dire Tladi: 05:13  I’m actually — you’ll be very surprised — I’m in large agreement with what Diane has said. I haven’t followed the ICC as closely in the last couple of years as maybe Diane and others have. But I do think that, like any institution, it’s going to experience difficulties. There’s going to be challenges. It’s certainly seen its fair share of challenges. My sense has always been that, like with most institutions, it’s to be expected that these challenges will happen. But the ICC is a big institution, and I think it’s to be expected that it will be able to live its way through them. For me, I think the biggest achievement in the last couple of months or so has been the appointment of a prosecutor — and really has been the appointment of a prosecutor from, if you like, left field. I don’t think that anyone would have expected that a prosecutor who was on the defence side in some high-profile cases will be so well accepted. So I think that’s certainly an achievement.

Janet Anderson: 06:11  And what reaction do you have, Dire, to the way that the U.S. kind of played its ball game with the ICC, putting sanctions onto the ICC prosecutor? Is that the way that these big states sometimes work, that they kind of — I mean, this was obvious, this was public — but are they behind the scenes kind of twisting the arms of ICC prosecutors insofar as possible?

Dire Tladi: 06:39  I mean, I think that’s the case. I know that we make a lot of the previous U.S. administration’s approach to the announcement of investigations in the Afghanistan situation and the possible — even before the announcement of the situation in Palestine. I’ve always said, and I think it’s in that novel, by the way, that for me, U.S. foreign policy doesn’t change. And it’s always just a matter of degrees. So what you saw with that was, if you like, U.S. foreign policy on steroids. But it’s the same. It’s consistent. 

And I think the other big powers also do that — try to exercise, and I emphasize, try to exercise control over the ICC. In some instances, of course, it’s institutionalized. It’s permitted, if you like, by the instrument under which the ICC operates, right? And so the fact that some situations can be referred to by an entity like the Security Council, on which some states have obvious power, is an obvious way in which some states can exercise control — ways that other states can’t exercise control. So there is a degree of that. But ultimately, it’s always for the ICC itself and the organs of the ICC to sort of show their independence. And it’s very difficult. Sometimes it’s successful, and sometimes it’s a little bit nuanced. So again, if you think about Afghanistan, an argument can be made that that’s an indication that the ICC can be independent, right? Clearly, it’s not something that the United States wanted. The reverse of that can be, well, how long did it take for the ICC to make that decision? If my memory serves me correctly, Afghanistan has been under what they call a preliminary analysis since 2007. It’s taken a hell of a long time to come to that conclusion. 

The same with the Palestine situation. It was, you know, there was this request, and then there was a decision that, no, it can’t be. And then there was another request. There was the State of Palestine joining. But it’s taken an awfully long time to come to the decision that we’re going to open an investigation. If you speak to the previous, the outgoing prosecutor about the reasons for this, well, if you take Afghanistan, it’s a hot situation. Things are still happening. So you can’t make that kind of a decision. I mean, my response to that is a decision was made in Libya in the midst of a raging conflict, right? It was made in a couple of weeks. So yeah, I mean, I think power does play a role. That’s just the nature of things, I think.

Stephanie: 09:02  And Diane, one of the other powers that kind of pulls at the ICC are a lot of NGOs that are kind of plugging their agenda. Do you think that the NGOs have a kind of realistic expectation of what the ICC can do for them? If you look at also — you wrote the book about what has the ICTY brought? What did people expect?

Diane Orentlicher: 09:25  Yes, it’s a great question, because one of the hugely important factors behind any of the tribunals we’ve seen is the power of NGOs. A lot was written and said about how influential non-governmental organizations were in the Rome Conference itself. So looking forward from that point to the impact of survivors and organizations that back them, the ICC, I think, has had the life that it’s had in a positive sense precisely because there is a powerful demand for justice. And we saw that with other tribunals before the ICC became operational. We’re certainly seeing that in the life of the ICC.

Victims of horrific crimes want justice. And if they can’t find it at home, they want the ICC to produce that. Are their expectations realistic? Gosh, in some sense, and for all the best reasons, the expectations of survivors of horrific crimes are maybe never wholly realistic because the ICC cannot deliver global, perfect, universal justice for all survivors of crimes. And it’s always been a challenge — and one we have to take seriously, by the way — to meet the really huge expectations of justice. One of the things that I feel pretty strongly about is that we have to — we, the international community — have to be careful not to raise unrealistic expectations on the part of victims about what a court like the ICC can deliver. At the same time, we have to do our best to meet their demands because they’re vitally important. And part of the reason I say that is because by the time a case gets to the ICC, the international community has spectacularly failed to protect people from abominable crimes. You know, we all know the ICC doesn’t handle garden-variety crimes. It handles the worst of the worst. It handles situations where protection has completely collapsed and where innocent people in large numbers have fallen victim to abominable crimes. And we really do owe the survivors of our failures a shot at justice at the very least. But at the same time, the ICC can’t answer every single victim’s demand for justice. So we need to find a way to do better within realistic boundaries.

Janet Anderson: 12:01  Dire, did you want to say something there?

Dire Tladi: 12:03  Yeah, I mean, so I agree 100% with everything that you said, Diane. I guess I just might add one factor that sort of tends maybe to pull in the opposite direction a little bit as far as NGOs are concerned. It’s not so much whether the expectations that they create are realistic or not. It’s also, when one thinks about NGOs, I think there’s also this worry from — at least from states — of the immense power of NGOs within the ICC. And there are times when it seems that NGOs have a greater say in how the ICC runs. It seems as if doors are more open to NGOs. And so there is this legitimacy question as well that, as someone who has worked on the other side for a long time, I sort of spot and I’m aware of and I’m very sensitive to. So as much as I certainly support very strongly the work of NGOs, I have at times been concerned about the extent that the doors open to NGOs are more so than states, who are, you know, also big stakeholders in international — who should be big stakeholders in international criminal justice.

Janet Anderson: 13:14  Diane, I just wanted to pull you back a moment to remind you of 1998 when you were in Rome and you were sort of trying to put this creature together. I mean, if you look at the state of the ICC now, is this the court that you imagined? I mean, I assume that you came in with all of your Yugoslav tribunal hat on with what wasn’t working there and what needed to change for this. Is this what you see now? Is this what you wanted?

Diane Orentlicher: 13:46  Well, what I wanted and what I expected may be two different things. Let me say this. I’m not surprised by anything that has happened since July 1998. And to explain and say, first of all, as we’ve already talked about, I’m in no way surprised that victims have remained passionately interested in seeing justice for horrific crimes. And in the book that I wrote about the ICTY’s impact in the former Yugoslavia, one of the really striking conclusions that came out of it for me was just how important justice was to survivors from a tribunal that they saw to be deeply flawed. Survivors of horrific atrocities in Bosnia have a litany of complaints about the way the Yugoslavia War Crimes Tribunal performed. And they will tell you at great length about the many ways it disappointed them. And yet, at the end of the day, they’ll also say that they are endlessly grateful for the justice they found before this court. So you’re absolutely right to assume that my Yugoslav experience led me to expect victims to invest a lot of hope in the ICC. 

Second, I’m not surprised at all that cooperation has been a challenge for the ICC. See, at the time the Rome Statute was adopted, I think the ICTY had been created five years earlier, but only one year before the Rome Statute was adopted did the ICTY start to see a significant improvement in its ability to arrest suspects. There was just this horrible period in its early years when it just couldn’t get custody of suspects for really atrocious crimes. And in July 1997, NATO forces operating in Bosnia finally started to arrest people who had committed or alleged to have committed terrible, terrible crimes. So I had every reason to expect that it was going to be a tough slog for the ICC to just be able to do the most basic thing: get custody of suspects whom it had indicted. 

The more kind of fundamental thing that one might have expected is that there would be enduring controversies. And here I’m going to pick up on some of the points Dire has made at the political level, because there wasn’t an easy consensus. In fact, there wasn’t a consensus coming out of the Rome Conference about pretty fundamental things like who the court would be able to exercise jurisdiction over. And this really gets back to the kind of fundamental fault line that was very much in evidence throughout the Rome Conference. On the one hand, you had strong proponents of a court that would have a global reach and that would be able to exercise jurisdiction even over nationals of powerful states. And that was kind of the vision that for the most part was encoded in the Rome Statute as it was adopted. You had, on the other hand, states, including the U.S. government, which I was not representing at that time, that felt very strongly that this was a treaty-based court and that states should be absolutely free to join it, but that it shouldn’t be able to exercise jurisdiction over nationals of states that didn’t consent. 

The important point I want to make is that that division was never resolved. It wasn’t resolved by the adoption of the Rome Statute. But instead, the adoption of the Rome Statute just kicked down the road fraught disagreements among states about the reach of the Rome Statute. And there was kind of an uneasy truce among those different visions, as long as the ICC didn’t try to exercise jurisdiction over nationals of non-party states and particularly over nationals of powerful states. But once it moved closer to that, that fault line really kind of broke open and created the controversies we’ve been alluding to earlier. And again, just to try to bring that back to your question, that’s not surprising. It was not only foreseeable, but foreseen at the time of the Rome Conference.

Stephanie: 18:18  And that’s a really nice bridge to our next question, because we asked some people in the Asymmetrical Haircuts community if they had questions for this podcast. And Sharon Paganda from Open Society asked about the Israel-Palestine case, which is one of those cases where the ICC is trying to extend its jurisdiction over nationals of non-state parties who commit crimes on the territory of member states. And she asks, is this the investigation that will make or break the ICC?

Dire Tladi: 18:51  I’m sorry, I don’t think that there’s really any situation that will make or break the ICC. I think the ICC is firmly established. And that’s why it goes through these big challenges where it seems like it possibly can’t succeed. But I think it’s a big enough institution that it will succeed. I do think that the situation in Palestine will be a very challenging one for the court. And I think for me, the challenges are — if you like, the real difficulties are — really self-created.

And I’ll tell you why. I mean, I don’t think there’s any question that the ICC has jurisdiction over nationals of non-state parties as long as certain conditions are met, right? So if those nationals of non-party states commit crimes on the territory of a party, then of course the ICC has jurisdiction over that. The really difficult question for me that the ICC faces, one that isn’t explicitly resolved in the Rome Statute, is when it comes to officials of those parties, right? So when immunity kicks in, the real difficulty, which I think is created by the ICC itself, is whether or not there’s a duty on other states to arrest. If you are an Israeli official, so under the world as I see it, the ICC should be able to exercise jurisdiction, but what the ICC cannot do is request state or demand of state parties to arrest you. So in a sense, if you’re an Israeli official, you can ignore the ICC if you like for a while. If the Jordan Appeal Judgment, which basically decided that immunity does not apply at all, including on the horizontal level, if that’s overturned by a subsequent appeal judgment, then of course the argument is going — or the criticism is going to be — this is a double standard, right? You were happy to have this position when the implications were for an African leader. If the Appeals Chamber, if the ICC sort of doubles down on that, then it creates this real challenge between states that might want to host senior officials from Israel in their countries. And I’m not quite sure how the ICC will deal with that.

Stephanie: 21:03  Diane, you’re looking troubled there. What’s your take on this Palestine-Israel as the most complicated case that the ICC might have to deal with up to now?

Diane Orentlicher: 21:13  I think it’s perilous to try to predict what’s going to happen in this case. Obviously, it’s very fraught and there will be stormy waters. I guess what I was thinking when you thought I was looking troubled, I was kind of thinking back on some of the other instances in which the jurisprudence of the ICC may have created both challenges and confusion because its jurisprudence on really important issues hasn’t always been consistent from one chamber to another. And in this particular case, what I was thinking while Dire was talking was that the decision of the Pre-Trial Chamber on the jurisdiction of the court in the Palestine situation — whatever you think of the outcome, whether you agree with the outcome or not — there were some problems in the analysis of the court. 

And I’m thinking here specifically of the fact that it went very lightly over a huge challenge, which is that the court said, we have jurisdiction in the sense that Palestine is a state for purposes of the Rome Statute. It could join the Rome Statute. It could confer jurisdiction over Rome crimes committed in its territory. But we’re not making any judgments for any other purposes about whether it’s a state. And it’s really actually hard to ignore the sort of wider implications. And just to make this more concrete, let me just say, as an example, one of the primary war crimes that it’s expected that the prosecutor will be looking at is the transfer of population from Israel into the occupied Palestinian territories. But if you don’t know whether the settlements are in the territory of Palestine, it’s hard to know whether that war crime has been committed. And so these questions of statehood actually really matter in the actual prosecution of these cases. And so the fuzziness of the judgment on that issue is going to sort of create real complications for the prosecutor as he moves forward in this investigation. 

I was getting in the weeds a little bit there, but really the broader point is that the ICC faces so many challenges that it can’t avoid. And particularly in light of those challenges, it’s so important for the court to perform at the highest level that it’s capable of. And as Dire’s comments indicated and mine were meant to indicate, when the court itself adopts jurisprudence that’s either unclear, less than a model of clarity in terms of providing guidance to the prosecutor and states parties, it’s amplifying the problems that it can’t avoid. To generalize that point even more, we haven’t really talked yet about some of the problematic prosecutions, some of the flaws in cases that can be attributed primarily to poor investigations, to insufficient evidence, and that kind of thing. And it’s desperately important that the new prosecutor focus like a laser on improving, addressing those challenges that are within his power to address. Because when you have a politically fraught prosecution, you need to make sure that you’ve battened down all your hatches and done the best, most impeccable possible prosecution. Because if there are any flaws in the prosecutor’s methodology, those will be seized upon to discredit the investigation overall. And so there are some things that the prosecutor can’t control. There are a lot of politically fraught issues surrounding the court that goes with the territory. But what it can address are the flaws that the Independent Expert Review identified, the flaws that states parties have identified, the flaws that past presidents of the Assembly of States Parties have addressed. And we need to really kind of, this is the moment for the court to improve its own performance where it can.

Janet Anderson: 25:51  Dire, I am conscious that we pulled you out of your meeting and you need to disappear. So one small final question, and then we’ll finish up with Diane. I don’t know how small a question it is. We also got in one from Shehzad Cheriania, who’s a senior advisor to the UK on their legal side. And he wanted to know from you about South Africa’s current stance on the ICC. But he put it in terms of also states as a whole, like these threats of withdrawal — are they the ones who could make or break the ICC?

Dire Tladi: 26:25  So, I mean, I think my answer to that is quite simple. I think that that was never a real threat, at least in terms of the mass withdrawal. I mean, I think there was certainly a time when it looked like South Africa really wanted to withdraw. I mean, it wasn’t just making a threat. But I think that my sense as an outsider, because I’m no longer involved in the government, my sense is that that’s now past, that’s water under the bridge. I don’t think that there are even discussions about withdrawal, even though it’s still formally on the parliamentary agenda. So I think those waters have passed. There are new challenges now, and that’s not one of them.

Janet Anderson: 27:04  And wider on states as a whole, you say that the ICC can’t be broken, but can states break the ICC?

Dire Tladi: 27:12  They can, but it has a life of its own in a sense. And the only way that the ICC can be broken is if there’s a mass withdrawal. And I think that’s really difficult. It’s very difficult politically to think how a government decides to tell its people that it’s going to withdraw from an institution like the ICC, even when there are problems. So, I mean, it’s possible. It’s legally possible. I just think it’s politically — I just think it’s impossible. And I always have thought that.

Janet Anderson: 27:43  Dire, thank you very much for joining us. We’ll let you get back to your meeting and we’ll carry on with Diane.

Dire Tladi: 27:49  Thank you very much. Diane, it was really nice to see you.

Diane Orentlicher: 27:50  Great to see you too.

Stephanie: 27:52  Diane, you already alluded to this in what you said, that we keep talking about states, but there is a lot that the new prosecutor can also do. Are the current troubles of the court coming more externally from states, or are there also internal things that threaten the court? And what in that is more important, do you think?

Diane Orentlicher: 28:16  Oh, I think they’re really both important. And the point I was trying to make earlier is that the ICC will be so much better able to withstand political pressures from states when it’s performing effectively in the arena where it has control and responsibility, frankly. When I was serving in the Obama administration, I was very proud to be part of the effort by that administration to re-engage with the court because the previous administration had not engaged with the court. I was really proud to be part of an effort by the Obama administration to not just not be hostile, but to actively help the court succeed. That was a high priority for the State Department when I was in it. 

But to be honest, there were times when I wished I had a lengthy list of ICC successes to be able to cite, to overcome skepticism in some quarters. And so that’s what I’m really saying when I say that the ICC has to really up its game in the areas where it has control. I mean, it should do that for its own sake. It’s what victims deserve. Victims deserve an effective prosecutor. But it also will be super important to the court’s ability to stand up to its critics. You know, by the same token, critics have a huge responsibility as well. And one of the points that some Americans have made, nad here I’m thinking of a recent report by the American Society of International Law. One of the points that was made in that task force report is that when the Biden administration expresses its concerns about specific ICC investigations, it really needs to do so in constructive terms and in honest terms. One of the things that was deeply troubling about the previous administration’s assault on the ICC is that it launched ad hominem attacks against the prosecutor that were incidentally unfounded.

And the United States has every right to express its concerns about investigations, but it’s desperately important that it do so in a constructive way and in a way that most importantly does not diminish the importance of the allegations that the prosecutor is looking into. And here I am coming back to your previous question about the Palestine situation. It’s really important that the U.S. government and other governments that have concerns about that investigation express their concerns in a way that acknowledges the seriousness of the allegations and the importance of investigating them in a way that is effective. And when the evidence warrants it, then seeking to bring those responsible for war crimes to justice, whether it be in the ICC or in national courts.

Stephanie: 31:41  We talked before about expectations and that you’re looking at the ICTY and it took a couple of years to really get going and get a lot of people. If you look at kind of the report, if you had to give a one out of 10 report card to the court so far, with all the things that it could be doing better and looking at the kind of convictions, acquittals, trials they’ve managed to mount, where would you put it?

Diane Orentlicher: 32:09  Oh, I’m going to dodge giving it a grade because I always find those rankings a little too facile, you know, in general. But I will say unequivocally, it can do a better job in terms of the performance of the prosecutor’s office. And I say that without meaning to detract in any way from the enormous contributions and achievements, really important achievements of previous prosecutors before the ICC. But it can do better. And I do think it’s hugely important and valuable for the court, that there’s now a consensus that it has to do better. It’s not its critics who are saying it has to do better right now. It’s its friends, its champions, its supporters.

Janet: 32:56  You mentioned the laser focus that you wanted the prosecutor to have on getting the details of investigations right that, you know, the next prosecutor, Karim Khan. So what would your advice be to us who are monitoring the court and looking at it? What should we look out for, for the first part of his next period?

Diane Orentlicher: 33:18  Well, that’s a great question. And I’m thinking about the fact that the independent expert review had 384 recommendations. Not all of them were for the prosecutor, but many of them were. So it’s hard to distill them. I think the big message was you need to be more strategic and efficient. You need to have a plan. You can’t just open investigations and not have a plan for how to move forward, when to close them, how to close them. So the prosecutor needs to take firm hold of just the management of a prosecutorial strategy, the clarification of it. 

And that will inevitably mean, I fear, that some victims will be disappointed because he will, I think, inevitably have to streamline the number of serious investigations he has. But one of the problems that the ICC has seen, I think, is that it has taken on a lot of investigations and it doesn’t have the staff it would need to do those effectively. So some investigations suffer and victims suffer. And being transparent about that with victims will, in itself, be huge. The expert report has a lot of discrete recommendations for implementing that. Some of them are for the court, by the way, things like set yourself deadlines, some really mundane. But in a sense, it’s astonishing that the ICC hasn’t got those kinds of procedures locked down by now. In the first few years of the ICC, when it struggled with management issues, apprehension of suspects, and that kind of thing, I comforted myself by remembering where the ICTY was at that point in its history. And then years went by and I would think about the ICTY. And I thought, well, by this point, they had done a better job of managing some of these issues. And so I think it’s fair to expect better performance from the ICC by now.

Stephanie: 35:15  At the end of our podcast, we always ask a couple of Asymmetrical Haircuts questions, which we don’t let you prepare for. The first one is really easy: what didn’t we ask you about this that we should have? What topic do you think we should have looked at and didn’t?

Diane Orentlicher: 35:32  Oh gosh, actually, I think you asked brilliant questions. I really do. It’s a testament to how well you understand these issues that you asked the questions you do.

Janet Anderson: 35:43  We’re nerds, Diane. We’re ICC nerds. This is what we spend our life on. It’s very sad. And our next question is: is there anything that you could share with us, in the spirit of failure or change? Something that you had assumed that you’ve had to change your mind about, something that you got wrong in the earlier part of your career that you now understand better. Is there anything you could tell us about?

Diane Orentlicher: 36:11  Oh gosh, there are so many things. Well, I will say that I’ll say something I’ve already said in writing. And this relates more broadly to transitional justice and international justice. I wrote an article 30 years ago about the scope of states’ obligations to prosecute perpetrators of atrocious crimes from a previous regime. And it had a much bigger impact than I anticipated it would at the time. 

One of the takeaways from that article on the part of many people who read it — and even more, maybe people who didn’t read it — is that I was arguing that all states must prosecute to the maximum extent possible people who committed terrible crimes from previous regimes. To some extent, that was a misunderstanding of my article, because if you read it, you’ll see that I do reckon with the difficulties that many governments face, and the genuine threat that prosecutions sometimes present to fragile new democracies that are climbing out of a dark period. But what I think I have come to appreciate even more than I did in the parts of my article that a lot of people didn’t get to, is how important it is for the international community not to wag our finger at countries that are struggling to address agonizingly difficult issues and say: here’s how you must do it. 

And there was a tendency in the early years of the field of transitional justice, which sort of grew to include international justice. There was a tendency to develop what is sometimes called a checklist approach. You must do prosecutions, have a truth commission, reparations, guarantees of non-recurrence — and I was part of that. And I think we have a deeper appreciation, and I certainly do, of how important it is to empower local societies and local victims and local civil society and local democracies to find their way through this. To support them. To help them understand what we’ve learned from past experience elsewhere. But not to dictate in terms that suggest we’re all-knowing about how to get this really difficult project right. I also think I understand, almost by necessity, how much longer it takes societies to recover from terrible periods of atrocity. I get that in a way that I didn’t when I was younger. In the early years of the transitional justice field, we tended to see the period of transition as a finite period. We tended to talk about windows of opportunity that were going to close soon, so governments should seize that moment. And as time went on and we saw the real world unfold before our eyes, I think we appreciated even more that it’s going to take a long, long time for societies to recover, and that work is never done. And that we need to be in it for the long haul. 

It’s something I talked about in my book about the impact of the Yugoslavia War Crimes Tribunal, and in that book specifically in the context of staying with countries like Bosnia that are now trying to bring perpetrators to justice still for atrocities that happened in the early 1990s. We gave them tons of support and backup and backstopped them when they ran into political interference for a really long time. And then we were like, done, we’ve moved on. You had your time, Bosnia. We have some current crises, and that’s understandable. But it also means that you’re leaving countries that are still fragile, and for understandable reasons, you’re leaving them in a situation where there’s likely to be retrenchment and backsliding is all too possible. And that’s kind of what these tribunals are all about at the end of the day. They’re there for us to say, in the most clarion terms, certain conduct is absolutely unacceptable. We will not stand by and abide it. And if those norms are shattered, if people are treated in an intolerable way, we will stand up and say: no, you can’t do that. You can’t get away with that. And what I’ve learned over time is what a constant, vigilant project that has to be. It’s not like a one-and-done moment.

Stephanie: 41:12  And my book recommendations now are — I have to get your book Some Kind of Justice. I have to get DeRay’s, sounding like a very interesting romanticized novel of international justice. I like all those things. But one of our other Asymmetrical Haircuts questions is: Diane, what do you have on your nightstand? What are you reading? What are you binge watching? Are there any podcasts you can recommend?

Diane Orentlicher: 41:38  I will tell you. Well, I can tell you the book I’m reading right now. It’s Mrs. Dalloway by Virginia Woolf. I’ve alluded to being older earlier. And one of the things that happens when you reach a certain age is you start to read all of the books that you somehow never got around to reading and should have. So that’s been part of my project. A book I would recommend — it’s a book that was written by Christian De Vos from the Open Society Institute on complementarity. One of the things that Christian does in this beautiful, brilliant book is look really hard at a concept that’s integral to the ICC, but which we haven’t talked about yet. And that’s my bad for not raising this earlier. The notion that the court is not the be-all and end-all, but rather part of its work is to incentivize countries to do a better job of bringing justice home where victims really need to see justice delivered. And he takes a hard look both at the theory of complementarity, but equally important, the actual practice in several countries where the ICC has been deeply engaged. And it’s an awesome book, a real contribution to our understanding of the ICC’s promise and areas where it can still be strengthened.

Janet Anderson: 43:11  The book itself is called Complementarity Catalysts Compliance: The ICC in Uganda, Kenya, and the Democratic Republic of Congo. We happen to be recording on a day when he’s actually going to be chatting about it in an hour or so on a webinar. So I’m going to listen into that. And your recommendation of Mrs. Dalloway, I actually read that while I was in Washington, D.C., while I was living there a few years ago. So it has that resonance for me. And it’s just — it’s a fabulous book. So I will happily reread that one. So thank you very much for joining us, Diane. I’m sorry that Dire had to leave a little bit earlier, but the IALC called. So we’ll look forward to hearing more from you maybe another time in the future when we actually get a chance to assess what the new prosecutor — what he’s actually made happen — maybe in a year or two.

Diane Orentlicher: 44:05  Great. Excellent. It’s been wonderful talking with you. Thank you for the really important reporting you do. It’s huge. It’s a huge contribution.

Stephanie: 44:14  Thank you very much. We love to hear that kind of stuff.

Diane Orentlicher: 44:16  It’s true. Thank you.

Janet Anderson: 44:19  Bye-bye. Bye.

Janet Anderson & Stephanie: 44:20  This podcast was created and presented by Janet Anderson and Stephanie. You can find show notes and additional blogs on asymmetricalhaircuts.com. It is recorded in the Hague Humanity Hub, home to a community of innovators in the field of peace, justice, development and humanitarian action. Music is by Audionautix.com and the show is available on every major podcast service. So please subscribe, give us a rating and spread the word.

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