Human Rights Advocacy in International Criminal Justice:

Whose Rights? Whose Justice?

Kjersti Lohne, Postdoctoral Researcher, Department of Criminology and Sociology of Law, University of Oslo.

Abstract of paper presented at Eurocrim 2020:
For human rights NGOs, international criminal justice has become a dominant tool to enforce human rights and achieve transitional justice in conflict and post-conflict settings through establishing accountability, ‘truth’, and public recognition of victims’ suffering. As such, victims’ rights and advocacy has become dominant in the ‘fight against impunity’ for international crimes and in international criminal justice, to the extent that commentators have taken issue with the lack of attention to defendants’ rights – and, more existentially, illiberal qualities with the project of international criminal justice altogether.

This paper develops an argument that contributes insights into the ‘skewed’ nature of international criminal justice through the juxtaposition of human rights as victims’ rights advocacy and defense rights advocacy. An analytical framework is set out that emphasizes the temporal domain of human rights advocacy: While human rights developed as a lingua franca for speaking truth to state power, a question must be asked about what has happened empirically and conceptually with human rights advocacy following the shift in criminalization of state responsibility to individual criminal responsibility for grave human rights abuses. In holding states accountable for human rights abuses, human rights NGOs advocate on behalf of defense rights; in holding individuals accountable for human rights abuses, human rights NGOs advocate on behalf of victims.

Building on interviews and observations of human rights advocacy in international criminal justice, the chapter explores three mechanism in international criminal justice advocacy:
– First, it delves into the popular appeals on behalf of victims, emphasizing the role of humanitarian reason for the fight against impunity for international crimes.
– Second, it explores the concurrent stigmatization of defendants in international criminal justice.
– Third, it looks at how this juxtaposition in advocacy for victims and defendants in international criminal justice plays out in the budget of the International Criminal Court, as reflective of the moral economy at play in the field of international criminal justice.

While the representational dichotomies of victims and perpetrators, good and evil, civilization and barbarity are particularly apt to delineate the boundaries and norms of the international community, the temporal dimension in human rights advocacy, emphasizing the shift from holding states to individuals criminally accountable, demonstrates how and when particular issues have salience on the international law and policy agenda.

In ‘disembedding’ both human rights advocacy and responsibility for human rights abuses from the state, the defendant is interpellated as hostis humani generis – the enemy of humanity, and as such, pushed outside the realm of human rights advocacy. The chapter thus offers an empirical and sociological understanding of the lack of consideration for defense issues in international criminal justice, and the challenges to the legitimacy of the liberal-legalist project that international criminal justice is. ​