LCIL Friday Lecture: 'Instrumental International Criminal Justice' Professor Miles Jackson

Lecture summary: The International Criminal Court is engaged in investigations in a number of situations of ongoing conflict. Recent scholarship and practice has paid attention to the question of whether the threat of prosecution at the international level contributes to the pursuit of domestic trials. Implicit in much of this work is an assumption that contributing to the pursuit of such domestic trials is always a good thing. In this paper, I challenge this assumption. The central argument is that the Office of the Prosecutor at the ICC ought to, in at least some cases, try to use its coercive power and discretion in order to bring about other, non-retributive, ends. To make that argument, the paper proceeds in four parts. First, on a normative and political level, it argues that the classic tensions between trials and other, incommensurable goods at stake in peace negotiations is as strong as ever, despite conceptual and institutional developments. Second, it looks to literature on compellence theory in international relations, particularly relating to sanctions, and suggests that threats of prosecution and, further along the investigative chain, promises of non-prosecution might be able to contribute to these other, non-retributive, ends. Third, on an institutional level, it argues that although not without risks, the use by the OTP of its discretion in this way is not inconsistent with the Statute and the Court's institutional mandate. Fourth, practically, the paper considers what such an approach would look like in reality, its challenges - both political and bureaucratic - and the difficult issue of prosecutorial accountability. Overall, the aim is to propose an approach that integrates the ICC into an international order that is not, and should not be, concerned primarily with criminal accountability. Miles Jackson is an Associate Professor of Law at the University of Oxford and a Fellow of Jesus College. He holds MA and DPhil degrees from the University of Oxford, an LLM degree from Harvard Law School, and an LLB from the University of South Africa. His doctoral research, supported by a Rhodes Scholarship, was on complicity in international law and was published by Oxford University Press in 2015. He has published in a range of journals, including the European Journal of International Law, the Oxford Journal of Legal Studies, and the Journal of International Criminal Justice. In 2017, he was awarded the Cassese Prize for International Criminal Law Studies.