Part of the International Conflicts series

Darryl Robinson: New Contexts, New Models – International Prosecutors in Pre-Transitional Justice Situations

Darryl Robinson, who teaches international human rights at the University of Toronto, proposed a new model for prosecutors in international law.

He stated that we currently make laws based on past experiences, and apply this into the future. We are therefore necessarily retrospective in its perspective and prospective in application

However we do frequently operate on a lot of wrong assumptions, including how long we should wait before establishing a court, how many people should join, and the context of the operations.

States have previously acted with impunity or under transitional justice for decades. A permanent ICC is often ongoing while the conflict continues.

Instead, there is a need for pre-transitional justice. But the problem is that perpetrators are still protected by armies.

Current Models

Two current models of prosecution exist – the realist and the formalist.

The realist gets out if it gets complicated. It’s not really a prosecutor because it doesn’t uphold the law. But this model is often favoured by critics of the ICC.

The formalist prosecutor behaves like a Western national prosecutor. They assert the supremacy of law, issue orders, castigate failures, issue press releases. Any considerations lead to politicization.

Robinson suggests a new model is need as an alternative to these two, that of a sensitive prosecutor using a theory of inclusiveness.

A New Model

The current challenge is that there is too narrow a perspective among agencies involved. Everyone is following their own mandate and specialization.

This myopic approach is actually required by the Geneva Conventions to avoid jurisdictional issues. And although this creates expert organizations that assertively interpret mandates, it also produces conflicting obligations and efforts.

Robinson states there is a need for an inclusive necessity, a a symphony vs. a cacophony. He cited the turtle shrimp case as an example of conflicting interests of different entities resulting in a less than optimal outcome.

He also claims that to date we have been using Western model, and proposed we look to other sources of inspiration; a mystical (Eastern) route. When we cling to our own beliefs, we see rest of world as complex. If we relax our own fixations we will be able to work less and yet create more change.

The Eastern Daoist philosophy is detached and at one with all. They serve with humility, and see the mystery in life.

Some examples are “overcoming by yielding.” Or how the truth often sounds paradoxical.

Stiff and unyielding is the discipline of death, not of life, which is gentle and flexible.  Stiffness only creates grudging, sullen cooperation.

The Daoist Prosecutor

A prosecutor exemplifying the Daoist thought would speak to everyone. They would manage their activities to minimize their effects on others and perceive cooperation as organic, steadily growing their partnerships.

Challenges with this approach will likely are when organizations exceed their legal mandate, or when flashy confrontations occur.

One example of such flashy confrontation is the situation in Darfur.

The situation in Darfur is very complex, and some limited forms of cooperation were occurring. But these results were not broadcast or publicized well, in part because the optics of the conflict made for better coverage.

Everyone then assumed that because they had not heard anything that nothing was going on.

Contrasting the Daoist Approach

The Daoist only uses tough measures after everything else has been tried.

Weapons are not a wise man’s tools. Force leads to loss of strength. War is conducted like a funeral.

The Daoist also masks their brightness, for the person who makes is show is not bright.

Peace and justice, and the renunciation of wisdom is the goal.

The conflict in Uganda is one of a conflict between peace and justice. There is no incentive for the LRA to create peace before an investigation, and instead warrants were issues for their leaders.

The ICC did get cooperation between the states of Uganda, Sudan, and Congo. When the rebel forces and equipment began to degrade, it led to a negotiation between the parties. Only the warrants stand in the way of peace now.

The formalist would still state, “I don’t care, let justice be done though the world may perish.” The Daoist is more detached, and would renounce wisdom and not hold onto ideas.

This contrast exists because European law is still very Kantian in its structure. Commonwealth countries however seem to have more of a Utilitarian emphasis.

The Big Question

The question that stands as the divide between the different approaches is the goal of international criminal justice. Is it social transformation or transitional justice?

The formalists would respond to the negative, and claim the goal is to punish individuals who committed crimes.

No clear consensus has emerged over this issue, but it remains the underlying question between the different goals that various entities aspire to for international justice.

These notes are from the Cross-Purposes? International Law and Political Settlements conference at the University of Western Ontario, on Jun. 9-10, 2007, with some editorial content added by Omar Ha-Redeye.