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A Search for Justice: an Analysis of Purpose, Process and Stakeholder Practice at the International Criminal Court

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A Search for Justice: an Analysis of Purpose, Process and Stakeholder Practice at the International Criminal Court University of Plymouth PEARL https://pearl.plymouth.ac.uk 04 University of Plymouth Research Theses 01 Research Theses Main Collection 2017 A Search for Justice: An Analysis of Purpose, Process and Stakeholder Practice at the International Criminal Court Nutt, Benjamin Iain http://hdl.handle.net/10026.1/10549 University of Plymouth All content in PEARL is protected by copyright law. Author manuscripts are made available in accordance with publisher policies. Please cite only the published version using the details provided on the item record or document. In the absence of an open licence (e.g. Creative Commons), permissions for further reuse of content should be sought from the publisher or author. A Search for Justice: An Analysis of Purpose, Process and Stakeholder Practice at the International Criminal Court by Benjamin Iain Nutt A thesis submitted to Plymouth University in partial fulfilment for the degree of DOCTOR OF PHILOSOPHY School of Law, Criminology and Government Faculty of Business September 2017 This copy of the thesis has been supplied on condition that anyone who consults it is understood to recognise that its copyright rests with its author and that no quotation from the thesis and no information derived from it may be published without the author's prior consent. Abstract A Search for Justice: An Analysis of Purpose, Process and Stakeholder Practice at the International Criminal Court Benjamin Iain Nutt At the outset the International Criminal Court (ICC) was heralded as a revolution within international society, but it has since found itself at the centre of much controversy and debate. According to the Rome Statute’s Preamble, a broad aim of the ICC is: “to guarantee lasting respect for and the enforcement of international justice”. However, a review of the critical literature surrounding the ICC uncovered a noticeable lack of discussions applying theoretical understandings of justice to neither the Court’s design nor operations; a gap in the literature that the thesis aims to address. Moreover, the review identified that the primary concerns regarding the ICC’s performance all focussed on stakeholder practices. Combining these two observations, the thesis hypothesised that the controversies and issues facing the ICC emerged because the practice of the Court’s primary stakeholders has been incompatible with the demands of justice. In order to test this hypothesis, the thesis analyses the compatibility of the ICC with what the thesis identifies as the core theoretical demands of justice across three areas: purpose, procedure, and stakeholder practice. It does this by building a theoretical framework from the justice literature which is then used to analyse and critique data relating to the ICC’s purposes, procedures and stakeholder practices gathered from empirical observations, interviews, official documents and speeches. The thesis concludes that, for the most part, it is the practice of ICC stakeholders that have been incompatible with the demands of justice, not the Court’s purposes or procedures. i Author’s Declaration At no time during the registration for the degree of Doctor of Philosophy has the author been registered for any other University award without prior agreement of the Graduate Sub- Committee. Work submitted for this research degree at Plymouth University has not formed part of any other degree at Plymouth University or at another establishment. This study was funded with the aid of a studentship from Plymouth University. Relevant seminars and conferences were attended at which work was presented. Presentations given and conferences attended: European Social Research Council (ESRC), Normative Challenges to International Society – Rising Powers and Global Responses in London, November 2012 , March 2013, and in Plymouth, March 2014; Plymouth International Studies Centre (PISC), Seminar Series in January and November 2014; British International Studies Association (BISA) Postgraduate Conference in Dublin, June 2014; British International Studies Association (BISA) Annual Conference in London, June 2015; Centre for International Intervention (CFII) (University of Surrey), Narratives of Intervention: Reflection from North and South in Guildford, July 2015; Centre for International Intervention (CFII) (University of Surrey), The Future of International Intervention in Guildford, July 2016. Word count of main body of thesis: 88,819 Signed……………………………………………………………….. Date……………………………………………………………….. ii Table of Contents Acknowledgments .................................................................................................................... vi List of Figures and Tables ....................................................................................................... viii List of Abbreviations ................................................................................................................ ix Chapter One - Introduction ....................................................................................................... 1 1.1 Introduction ..................................................................................................................... 1 1.2 The Problem and Research Approach ............................................................................ 3 1.3 Arguments in Favour of a Permanent International Criminal Court ............................. 9 1.4 Chapter Summary and Thesis Structure ....................................................................... 26 Chapter Two – The International Criminal Court Controversy .............................................. 28 2.1 Introduction ................................................................................................................... 28 2.2 Institutional Controversies Surrounding the International Criminal Court ................ 29 2.3 Political Controversies Surrounding the International Criminal Court ....................... 44 2.4 Chapter Summary .......................................................................................................... 64 Chapter Three – Theories and Understandings of Justice ..................................................... 66 3.1 Introduction ................................................................................................................... 66 3.2 Justice, Society and Institutions: Social Justice ............................................................ 70 3.3 Justice and Procedures: Procedural Justice ................................................................. 87 3.4 Justice and Decisions/Actions ..................................................................................... 103 3.5 Chapter Summary ........................................................................................................ 128 Chapter Four – Methods and Methodology ......................................................................... 131 4.1 Introduction ................................................................................................................. 131 4.2 Three Research Approaches ....................................................................................... 132 4.3 Philosophy of Research: Critical Realism ................................................................... 137 4.4 Data Collection ............................................................................................................ 140 4.5 Positionality and Reflexivity ....................................................................................... 150 iii 4.6 Ethical Considerations ................................................................................................. 153 4.7 Chapter Summary ........................................................................................................ 156 Chapter Five – A Purposive Analysis of the Internatinal Criminal Court ............................ 157 5.1 Introduction ................................................................................................................. 157 5.2 Societal Level Objective: A Court of Last Resort ........................................................ 159 5.3 Organisational Level Objective: Ending Impunity for International Crimes ............. 168 5.4 Practical Level Objective: Trials before the International Criminal Court ................ 175 5.5 Chapter Summary ........................................................................................................ 182 Chapter Six – The Core Procedures of the International Criminal Court ............................ 184 6.1 Introduction ................................................................................................................. 184 6.2 Referrals ....................................................................................................................... 185 6.3 Complementarity ........................................................................................................ 194 6.4 Gravity ......................................................................................................................... 203 6.5 Cooperation ................................................................................................................. 209 6.6 Chapter Summary ........................................................................................................ 220 Chapter Seven – Stakeholder Practice within the International Criminal Court System ... 224 7.1 Introduction ................................................................................................................
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