Academic publishing in Canada: a lament: why does it take three years to publish books based on conferences?

Bringing Power to Justice? The Prospects of the international Criminal Court Joanna Harrington, Michael Milde and Richard Vernon, editors McGill-Queen's University Press 270 pages ISBN 0773529675, softcover ISBN 0773529667, hardcover

Bringing Power to Justice? The Prospects of the International Criminal Court tackles an important topic, through a variety of prisms. The authors are literate, display interesting points of view and (mostly) advance cogent arguments, a luxury for readers of academic texts. The book is the product of a Canadian university press.

Should we rejoice? Sadly, no.

While several of the individual contributions deserve praise and a wider readership, the volume displays organizational flaws that decisively undermine it as a whole. They may point to more widespread problems in academic publishing.

Firstly, the introduction by the three editors, Joanna Harrington, Michael Milde and Richard Vernon, is slight, serving up only the sketchiest outline of the ICC's origins and of the debates surrounding its creation. No chapter of conclusions is provided. The role of the editors (who presumably accrue some credit for this publication in the "publish or perish" tenure sweepstakes) is opaque. They may have done a brilliant job in editing the contributions of their eight authors, but at this stage of the enterprise that is hard to demonstrate.

Secondly, the volume derives from a conference three years ago at the University of Western Ontario. Three years! Peer review can take time, particularly when it is allowed to slide, but this is excessive by any standards. One or two of the authors subsequently updated their texts. Others did not. A great deal has happened with respect to the ICC since 2003 (when it became operational). Thus the value of the volume, beyond the high quality of scholarship displayed, is largely confined to its role as a reference tool.

But, thirdly, alas, the volume's value as a reference tool is sunk by the absence of an index. Pause to think: a reference volume without an index! So puzzled was I that I called up McGill-Queen's University Press to inquire. I was advised that an index is the "responsibility" of authors. In my experience this means that the authors must produce one or pay for one to be produced. (This is often done through the publisher, which subtracts the costs from subsequent royalties, if any.) My McGill-Queen's interlocutor estimated that 95 percent or so of their volumes have indexes. I'm astonished that 5 percent might not. I then called one of the co-editors. It turns out that the editors had assumed the publisher would provide an index and had not thought to inquire. The results are dire. This is all the more distressing as the book is expensively printed and very nicely typeset.

Thus, decisions pertaining to the organization of the volume leave the authors marooned with little prospect of being widely consulted. This will not unduly distress the two of them whose texts here are revisions of pieces published elsewhere, one of them in the prestigious American Journal of International Law. But to go to the trouble of producing a fresh piece of legal scholarship (requiring the densely sourced argumentation that distinguishes public international law texts from those of some other disciplines) for this outcome must be distressing.

Any of us who have perpetrated academic edited volumes know that the final shape of the book rarely corresponds to the careful planning of editors: some authors drop out; others produce texts so pathetic as to be beyond repair; yet others fail to address the question assigned to them and instead supply repackaged bits and pieces of their stored backlog of text (so easy to conserve electronically nowadays). One way or the other, what is available for publication often winds up being a dog's breakfast. This volume scores somewhat better than most in this regard.

That said, do we need a full chapter (by Michael P. Scharf) on the early stages of the Slobodan Milosevic trial in another court, the International Criminal Tribunal for the former Yugoslavia? (Alert readers will recall that Milosevic died earlier this year with the trial not nearly over, hence without a verdict, after much public expense and not always edifying media coverage.) A chapter by Professor Scharf drafted now would be considerably more interesting, although a number of the concerns he raises are highly perceptive and policy relevant. This is followed by a learned chapter on immunities law by Dapo Akande that educates usefully, but at great length relative to the few key points registered. (This chapter displays footnote bulimia, a common pitfall of legal scholarship, accounting for 22 full pages, nearly as many as the main body of text--and in smaller print!) It discusses the protections to which sitting and former government officials can have recourse in seeking to evade prosecution for their purported and real crimes, a subject of relevance recently to Henry Kissinger, who offered his own take on the risks of such prosecutions going awry in the journal Foreign Affairs five years ago.

David Wippman, a terrific scholar at the Cornell Law School is belatedly allowed to get to the heart of the ICC's prospects in his chapter, which identifies exaggerated claims of both critics and supporters. Among other salient points he registers are the staggering expense of the (temporary) international criminal tribunals for the former Yugoslavia and Rwanda, totalling around US$400 million in 2004. These funds are provided by all United Nations member states through assessed contributions. When recently visiting Tanzania, where the Rwanda tribunal is located in Arusha, I was told repeatedly that most Rwandans and many Tanzanians would prefer to see such sums expended on economic development (and perhaps more expeditive justice). The ICC will be neither so fortunate nor so flush: with the United States and a number of other major countries not having ratified the statute, its funding base will keep it on a tight financial leash, precluding expansive interpretations of its remit (more on this later).

Wippman also points out that, at best, the ICC will be able to try only a few ringleaders in the human-made humanitarian or political disasters on its docket, with many perpetrators going free. But this was the logic of the Tokyo and Nuremberg trials, and I can live with it: seeing leaders dragged before courts to answer for genocide and their other war crimes and crimes against humanity produces useful demonstration effects. Deterrent effects, as Wippman points out, are more dubious.

Wippman's essay also raises the much debated question of whether such prosecutions are compatible with the objective of national reconciliation. He is powerfully answered in a subsequent chapter by Daryl Robinson, a young Canadian international scholar and policy entrepreneur who did much to advance the creation of the ICC from within Canada's Department of Foreign Affairs and International Trade and who later moved onto the ICC staff (only to be snagged, very recently, by the University of Toronto law school). Robinson argues that the ICC has the discretion not to proceed with prosecutions where it views them as likely to be counterproductive to broader justice; that in the worst cases it almost always will be appropriate to prosecute a few of the worst perpetrators; that such proceedings are complementary to other forms of justice, mostly at the national level; and finally that national or international truth commissions aimed at promoting reconciliation need not be incompatible with a small number of well-targeted criminal prosecutions.

Wippman helpfully raises the painful political backdrop to the ICC's creation. He served on the U.S. National Security Council staff under President Bill Clinton. He was, I recall, one of those seized with the ICC file--on which Republican opponents of the White House, in the midst of the Lewinsky follies, played mightily. They portrayed the ICC as the primary threat to rosy-cheeked young U.S. military humanitarians as they move around the globe improving the world. Given the checks and balances that exist in the ICC's statute--notably those giving the UN Security Council a significant role through which the U.S. can greatly influence what cases reach the ICC's docket--and a U.S. track record of prosecuting criminal behaviour within its own military ranks, this fear-mongering can readily be seen as hype. But it was highly effective in intimidating Clinton. He signed on to the ICC only during his final hours in the White House, and his successor promptly "unsigned" (a procedure previously unknown to treaty negotiation).

Antipathy toward the ICC is likely to decline in Washington over time. The effort by the U.S. to shield American peacekeepers from international prosecution (a far-fetched scenario to begin with) by negotiating bilateral agreements has been only partially successful. Where this tactic has failed, as it often has in Latin America, Washington's pressure has more often than not proved counterproductive to U.S. interests. (1) In the midst of much greater concerns over terrorism, weapons of mass destruction, Iraq, Afghanistan, Iran and the Israeli-Palestinian situation, U.S. zeal to sink the ICC appears a misallocation of diplomatic time and muscle. And, indeed, it has largely stopped.

Subsequent chapters by Tracy Isaacs (on individual responsibility for collective crimes, nimbly raising a number of interesting legal and political issues) and Catherine Lu (on the ICC as an institution for moral regeneration, perhaps a triumph of hope over experience) add value. The contribution by Antonio Franceschet (weighed down by jargon and situating the ICC in a negative and rather derivative assessment of globalization) is, to this reader, more questionable.

But what does the volume not tell us?

First of all, the ICC is up and running (with 100 state parties) and now has four cases on its docket. In February 2006, it had received 1,732 communications from 103 different countries. (2) Ten had been subjected to intensive analysis and three have proceeded to investigation (with five analyses ongoing).

The most high profile of the four cases on its docket relates to Darfur. It involves a decision in 2005 by both China and the United States, in the UN Security Council, to swallow their hostility to the ICC and to allow referral to it of the findings of a UN expert panel on serious international crimes committed in relation to Darfur (including a sealed list of 51 suspects). Although this referral procedure is exactly the one that the U.S. had argued for in negotiations over the ICC statute, the Bush administration's unhappiness with the concept of the ICC was such that it took a very intense debate within administration circles for it to acquiesce in the UNSC's decision. China's agreement was, in a sense, equally surprising, as the Khartoum government had clearly expected Chinese economic interests in Sudan to outweigh other considerations in Beijing's calculations.

The second case, addressing the situation in the Democratic Republic of the Congo, was referred by the DRC itself to the ICC and an investigation was launched in June 2004. On March 17, 2006, Thomas Lubanga, a Congolese national and alleged founder and leader of the Union des Patriotes Congolais, was arrested on war crimes charges. He is now in custody in The Hague. His trial is expected to commence before the end of 2006. Arrest warrants against other accused are believed to be imminent.

Uganda referred the third case, concerning the rebel Lord's Resistance Army and the ICC prosecutor launched an official investigation in July 2004. Arrest warrants for crimes against humanity and war crimes against five senior commanders of the LRA (including its leader Joseph Kony) were made public on October 13, 2005. Execution of the arrest warrants remains outstanding. This case has been criticized by a number of Ugandans and nongovernmental organizations that believe that national reconciliation should trump criminal prosecution of Kony (and some of his confederates). (3)

The fourth case is less well known. In January 2005 the Central African Republic referred all crimes within the ICC's jurisdiction committed in the CAR since July 1, 2002, to the ICC prosecutor. The referral reportedly accused the country's former leadership (prior to the March 2003 coup) of ICC crimes. More recently, the CAR's Cour de cassation ruled that CAR courts were unable to prosecute serious crimes allegedly committed by former CAR president Ange-Felix Patasse and four associates, prompting the CAR to refer these crimes also to the ICC.

As is always the case with international bureaucracy, attention within the ICC community currently focuses to a degree, if grapevine intelligence is correct, on internecine struggles and on worries about the institution's funding base. The ICC relies entirely on those countries that have ratified its statute, and the absence of several normally large contributor governments (United States, Japan) is a problem. Nevertheless, the ICC's budget in 2007 is expected to hover around 90 million [euro] or CA$125 million, which is nothing to sneeze at. (4)

Oddly for a Canadian book, very little note is taken of the central role Canada played in the ICC's creation. Lloyd Axworthy advocated and lobbied mightily on its behalf. Philippe Kirsch, the presiding judge (re-elected for a second and final three-year term earlier this year) chaired the negotiations over its statute. Several other Canadians have provided active support. Canada's profile in the founding of the ICC is no small matter, at a time when some Canadians believe that our international profile and foreign policy have atrophied to the point of irrelevance.

I consulted Philippe Kirsch to see where he believes the ICC is at today and whether it is beginning to fulfill its purpose.

   The court springs from a major gap in the
   international legal system. The great scale of
   genocide and many crimes against humanity
   and war crimes tends to overwhelm the capacity
   (and sometimes the will) of domestic legal
   systems, particularly in countries recovering
   from war. The international criminal tribunals
   were important initiatives, but they are limited
   in time and space (in terms of the territory
   they cover). Any decision to create such
   tribunals is subject to the vagaries of geopolitics
   (as reflected in the Security Council).
   The future of the court hinges on two factors:
   a) the performance of the court itself (in
   terms of process and outcomes), on which
   I am optimistic, and b) cooperation of states
   that need to provide support to the court that
   would automatically exist in domestic jurisdictions--in
   terms of police work, warrant
   enforcement, etc. That cooperation is essential
   for the court but is more unpredictable. (5)

In conclusion, I return to my initial themes. The ICC represents a fascinating experiment in international criminal justice, although, as Wippman points out, an as yet immature one. How the ICC relates to other innovations in international relations, to the Security Council (with which its future is so greatly bound up) and to other courts and tribunals is not much to be found in the volume under review.

The volume raises questions over the manner in which peer review is exercised (which would appear to be the main reason for the tardiness of the book's appearance). Good research practices may have been followed, but the result is disappointing. Is the academic publishing world operating in a bubble? At the very least, this volume suffers from neglect both by its editors and its publisher in the matter of the index, but it also smacks ever so faintly of clock punching en route to tenure. McGill-Queen's can do better and must if its output is to do more than gather dust from the date of publication, the harsh economics of such ventures notwithstanding.

Notes

(1) Mexico and close U.S. ally Colombia, for example, refused to cooperate with Washington on this score. The war on drugs was not greatly assisted by Washington's countermeasures.

(2) Of these communications, 80 percent were found to be manifestly outside the jurisdiction of the ICC after initial review.

(3) For a relevant informed blog commentary see <lawofnations.blogspot.com/2005/04/ icc-watch-prosecutor-northern-ugandan.html>. For a fuller analysis, see <www.globalsecurity.org/military/library/ news/2005/10/mil-051010-irin02.htm>.

(4) Because of the nature of the ICC, with investigations on complex situations involving many languages, approximately 15 percent of the total budget is devoted to translation.

(5) Conversation and subsequent correspondence with Philippe Kirsch, June 4-5, 2006.

David M. Malone is a Canadian Foreign Service officer. His own book, The International Struggle for Iraq: Politics in the UN Security Council, 1980-2005, was recently published by Oxford University Press. The opinions expressed here are his own, not those of his employer.