CPSA/ISA-Canada section on International Relations
C01(b) - Legal Mobilization in International Courts: Roles of Activists and Prosecutors
Date: Jun 4 | Time: 08:45am to 10:15am | Location: SWING 406
Chair/Président/Présidente : Lisa Sundstrom (University of British Columbia)
Discussant/Commentateur/Commentatrice : Lisa Sundstrom (University of British Columbia)
Session Abstract: This panel includes a wide range of perspectives on dynamic trends in how legal mobilization is changing to affect litigation and jurisprudence in a number of international courts. The panel showcases new scholarship that moves IR perspectives on international law beyond traditional debates on the roles of states that create international courts, to consider the roles of human rights activists, philanthropic foundations, court prosecutors, and court staff in shaping the kinds of cases that are considered by courts. Papers address the roles of human rights activists in developing an entirely novel body of case law on labour rights at the European Court of Human Rights; the interactions between private foundation donors and human rights NGOs in gravitating towards litigation strategies over time at the ECtHR; the entrepreneurial efforts of ICC prosecutors to select case areas that heighten the Court’s institutional strength; and the non-judicial activities that a range of courts’ bureaucracies engage in to mobilize constituencies to support their governance goals in their respective legal regimes.
The Making of Human Rights Law From Below: Labor Activists Before the European Court of Human Rights: Filiz Kahraman (University of Toronto) Abstract: What is the role of grassroots mobilization in shaping human rights law? The literature on legal mobilization at international courts shows that material resources and legal expertise provided by legal advocacy groups are vital for sustaining a successful long-term litigation strategy. The emphasis on legal support structures, however, often overshadow the behind-the-scenes role of local activists. I draw on extensive fieldwork data collected on the mobilization of trade union activists from Turkey at the European Court of Human Rights (ECtHR) to analyze how grassroots mobilization influence the making of human rights law. The cases brought by Turkish labor activists led the ECtHR to overturn its previous jurisprudence and recognize some key trade union rights as fundamental human rights. I show that activism on the ground shapes human rights law in three important ways. First, aspirations, norms, and discourses developed by activists provide sources of “new rights claims” that lawyers bring before international courts. Second, ongoing campaigns at the domestic and international level keep the issue alive and put pressure on political actors as well as judges sitting at international courts. Finally, these campaigns create awareness among victims to come forth with their stories and join the collective litigation efforts.
Taking the Opportunity: Prosecutorial Opportunism and Case Selection at the International Criminal Court: Mark Kersten (University of Toronto) Abstract: Why do prosecutors at the International Criminal Court (ICC) pursue the investigation and the cases that they do? The decision to prosecute some international criminals but not others has captured the imagination of scholars, observers and communities affected by atrocity since the very onset of the international criminal justice project. The ICC ultimately targets (or does not target) specific perpetrators or opens investigations (or not) following the identification of prosecutorial opportunities. These are defined by a negotiation between the institutional interests of the Court and the political interests of the actors, particularly states, on which the Court depends. The core contention of this paper is that this negotiation of the ICC’s institutional interests produces prosecutorial opportunities. The Court’s targets are thus chosen based on whether their selection will further the Court’s institutional interests. The chapter demonstrates this through an assessment of two empirical cases: i) the unsuccessful cases brought against Kenyan political leaders, particularly Uhuru Kenyatta and William Ruto, for crimes against humanity during Kenya’s 2007-08 post-election violence; and ii) the surrender and prosecution of Ahmad al-Faqi al-Mahdi for the destruction of religious sites in Timbuktu, Mali and the subsequent surrender of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud to the Court. Through the case of the ICC’s intervention in northern Uganda and the surrender of Dominic Ongwen, the chapter also show how states can manipulate OTP prosecutorial opportunism in order to satisfy their own interests.
Beyond Adjudication: International Courts’ Agency and Entrepreneurship for Governance: Nicole De Silva (Concordia University) Abstract: While existing accounts of international courts overwhelmingly focus on their role in interpreting and applying international law and adjudicating international disputes, this paper makes the case for more broadly theorizing international courts’ agency and entrepreneurship for governing and mobilizing actors in their legal regimes. It conceptualizes international courts as international organizations with both “judicial” and “non-judicial” activities (e.g., diplomacy, training, outreach) underpinning their agency and influence over state officials, national judges, lawyers, the general public, etc. The judicial/non-judicial distinction, furthermore, is crucial for explaining international courts’ entrepreneurship and expansion of their governance activities. With adjudication, international judges operate within considerable political and legal constraints, but in courts’ non-judicial area of activity, officials are far less constrained and have greater scope for entrepreneurship in mobilizing actors in support of international courts’ governance goals. To empirically evaluate this claim, the paper analyzes an original dataset coded from the founding treaties, jurisprudence, reports, and websites of all twenty-three permanent, operational international courts. It compares the activities states have designed international courts to perform with the activities international courts have developed through their own entrepreneurship. While there is variation in whether and how international courts have expanded their activities, it is clear that international courts primarily rely on their non-judicial activities for increasing their means of governing and mobilizing actors in their legal regimes. These findings support moving beyond the focus on adjudication and more broadly theorizing international courts’ roles and interactions within their legal regimes, including both its judicial and non-judicial dimensions.
The View from Gulu: The Dominic Ongwen Trial and Perceptions of International Justice: Kjell Anderson (University of the Fraser Valley) Abstract: There is a fundamental disconnect between the complex realities of conflicts like the Lord’s Resistance Army (LRA) Insurgency in Uganda and the criminal trials that seek to apportion blame for atrocities. Dominic Ongwen, a former child abductee of the LRA, is currently the only person on trial at the International Criminal Court (ICC) for atrocities committed during the insurgency. Despite wide-ranging outreach activities, public opinion on the work of the court remains critical.
In this paper, the author will analyze perceptions of the ICC and the Ongwen trial in northern Uganda. It will argue that local critiques of the ICC’s work revolve around the following issues: the selectivity of the court in applying criminal responsibility (no indictments against Ugandan army personnel or Ugandan political leaders), the retributive nature of the court (contrasting with more restorative local transitional justice approaches), the politicisation of the court (its close cooperation with the Ugandan government), and the lack of broad-based local participation in the Ongwen trial. It will draw from the author’s interviews with some 66 people relating to the Dominic Ongwen case – from Ongwen’s family, to his LRA colleagues, to individuals working on the trial. The paper will build on critiques articulated by Erin Baines and others, that boundaries between victimhood and perpetratorhood in the LRA insurgency are contested, in arguing that local perceptions of the ICC’s work are derived from fundamental shortcomings in the ICCs jurisdictional architecture, as well as the limitations of criminal trials.