The inevitable insurgence of AI will transform the legal profes…

Artificial Intelligence (AI) is already influencing the legal profession and has the potential to greatly influence the profession in the future. AI is currently benefiting the legal profession by performing mechanical tasks and saving substantial costs and time to both large and small law firms. This impact on the profession will be beneficial, contingent upon laws and regulations being introduced that will impose restrictions on AI and its application within the profession, so that it does not come to replace humans. This blog post will argue that the only way AI will be detrimental to the profession is if AI technologies eventually come to replace human lawyers and judges. However, this is a distant future prospect. AI technologies, in their present form, are beneficial to the legal profession when they assist human lawyers in doing their every-day tasks more efficiently, accurately and providing more cost-effective legal advice to their clients. But, it is of paramount importance that AI is regulated by the Government to ensure this vast use of AI in the law is trustworthy and transparent.

The influence of AI in the legal profession is already evident from the fact that numerous large law firms across the UK are using AI technologies. For instance, the law firm Addleshaw Goddard (AG) is using AI to provide better results to their clients. AG is using Kira, which ‘is a powerful AI system’, used to quickly interrogate and manage large volumes of information saving significant amounts of time. Furthermore, one of the largest and most historic law firms in the UK, Freshfields, has also invested in the AI program, Kira, and is consistently using this program for their every-day operations, such as reviewing contracts. Kira can identify ‘all agreements with potentially problematic provisions.’ Additionally, a relatively smaller law firm, Muckle, has been using AI technologies since 2016 to accelerate ‘large, complex disputes’. Additionally, a recent study from the Coldwell Banker Richard Ellis (CBRE) Group, found that 89% of law firms are already utilising AI or have imminent plans to do so. Consequently, it is illustrated that law firms, whether large or small, are willing to invest in AI technologies to facilitate mechanical, every-day tasks.

AI is benefiting the legal profession by saving significant costs to its clients while also providing more accurate, efficient and timely results. These extraordinary results enable lawyers to tackle more complex and creative tasks that can make an impact on the law and society. The global consulting firm, McKinsey, has asserted that lawyers are already utilising AI technologies to evaluate the thousands of documents gathered during discovery, and to determine the most important ones for further review by legal staff. The international law firm, Cleary Gottlieb used AI during discovery to determine which of the thousands of documents collected were documents that should not be investigated by prosecutors due to lawyer-client privilege. As one of the lawyers of the firm pointed out, “from the 500,000 we started with, we quickly made our way to identifying 15,000 documents that were privileged.” Notably, the cost to perform this review by AI was $50,000, instead of the potentially millions in billable hours the job usually would have cost.

Additionally, an AI lawyer, CaseCruncher Alpha, won a challenge against 100 lawyers from London’s magic circle firms. The challenge was to predict whether the Financial Ombudsman would authorize a claim by analysing hundreds of PPI (payment protection insurance) mis-selling cases. Overall, the 2 contestants presented 775 predictions, with the AI lawyer, CaseCruncher having an accuracy rate of 86.6 percent, whereas the lawyers merely obtained a 66.3 percent correct. Likewise, in a new study expressed on Hacker Noon, twenty of the USA’s top corporate lawyers competed against an AI program, called the LawGeex AI, to figure out who could identify the defects in five non-disclosure agreements (NDA) faster and with more accuracy. The challenge was set up by an impartial team of specialists, including law professors from Duke, UCLA, and a senior corporate lawyer. The AI program attained “an average 94 percent accuracy rate, higher than the lawyers, who achieved an average rate of 85 percent.” Incredibly, “it took the lawyers an average of 92 minutes to complete the NDA issue spotting, compared to 26 seconds for the LawGeex AI.”

These examples show that AI can genuinely assist lawyers in analysing these documents, and to reduce the wordiness of these documents, which can enable one party to identify the main issues. Moreover, AI can reduce the costs of legal advice and free up time for lawyers to concentrate on more complex tasks. An AI system that reviews contracts allows lawyers to work on ‘higher-level tasks’ and it makes ‘legal advice accessible and affordable for all.’ There are, therefore, multiple benefits of using AI within the legal profession, including efficiency, accuracy, costs and the ability to free up time for the lawyers to undertake more challenging tasks.

80% of consumers think that it is more significant to obtain more cost-effective legal advice than for the job of solicitors to be retained. This, then, illustrates that clients will want to use AI because it would be more affordable and that people are, indeed, willing to use AI and do not consider it as a threat, which suggests that AI is bound for mass market acquisition. The fact that clients will be willing to receive legal advice from a law firm that encourages use of AI is shown by a statistic from PwC that 72% of business executives think ‘AI will be the business advantage of the future.’ Another incentive for clients to use AI in the UK is evident from the fact that AI is expected to add £232 billion to the UK economy by 2030 and $15.7 trillion to the global economy. Moreover, in a keynote speech by AG, it was asserted that clients are now expecting better quality services for a lesser price.[i] Hence, AI systems might be adopted by all law firms in the future, rendering the influence of AI systems on the legal profession, gigantic. This is comprehensively summarised in the statement of Girardi, who asserted that “it may even be considered legal malpractice not to use AI one day.”

Identifying the great benefits that AI can provide the legal profession, it seems that the major detriment of AI is if it comes to replace human jobs. However, it appears improbable that AI will replace human lawyers in the near future, due to the limitations of its use to only mechanical tasks and the lack of interpersonal skills that it possesses.

As Thomas asserts, “AI is not going to replace managers, but managers who use AI will replace the managers who do not.” As Richardson and Girardi both agree, no matter how sophisticated AI becomes, it will never be a substitute for the judgment and decision-making only humans can provide. Indeed, human lawyers and judges can provide justice, enforce the rule of law and impact society in a way that AI may never be able to do. As Australian law firm Best Hooper implies, a client will not be able to create a relationship of trust and loyalty with their solicitor, if that solicitor is an AI robot. Correspondingly, it is evident that AI replacing human lawyers would be detrimental to the profession in terms of business efficacy. The firm continued to rightly acknowledge that answers to legal questions are not always black and white and therefore, AI technologies will not be able to replace human lawyers in the near future, since the current AI does not possess such skill. This is evident from the AI, CaseCruncher, which recognised that AI technologies are only better at human lawyers in predicting conclusions when the question is outlined “precisely”. Currently, AI can merely analyse information they collect, lacking interpersonal and other skills required by a lawyer.

The Observer asserted that AI is currently undertaking the tasks previously completed by entry-level lawyers and thus also issuing a warning as to the possibility of certain jobs within the legal profession being replaced. Dodd supports the position that AI could supersede some of the mechanical tasks completed by junior lawyers and paralegals. Correspondingly, Morison and Harkens observed that paralegals were ranked in the first quartile of those to be replaced by a study looking at the jobs that are likely to become automated in the future, because AI can scan documents to identify essential words and phrases.[ii] In this study, lawyers due to their interpersonal, advisory roles were placed in the fourth quartile of least likely to be superseded.

However, AI cannot currently talk to a client or present arguments in front of a judge in a trial. Similarly, “AI’s present capability meets a sizable need in the legal space by automating a number of high-volume, recurring tasks that otherwise take lawyers’ focus away from more meaningful work.” Consequently, it appears that entry-level lawyers will be allowed to focus on more significant tasks rather than performing recurring work, which is beneficial to both the profession and society. However, if AI manages to be able to replace human lawyers in the distant future, this could also benefit society in that it would provide cheaper legal advice to citizens. Nevertheless, since the study cited by Morison and Harkens indicated that lawyers are one of the most challenging professions to replace, if AI is able to reach this level of intelligence, which will be close to the ‘human-level machine intelligence’(HLMI) described by Bostrom,[iii] then the very existence of humanity is under threat. As Bostrom emphasises, once a machine can surpass the general intelligence of humans; humans will no longer be the dominant life-forms on this planet and “our fate would be sealed”. Therefore, despite the benefit to society that the replacement of human lawyers might provide, the bigger picture indicates that this would be detrimental. Correspondingly, a collaboration between AI and humans seems the most reasonable solution, as according to Forbes, ‘lawyers and judges are only as good as the information they receive, and AI has the potential to significantly increase the quality of information.’ Appropriately, although there are signs of AI threatening jobs within the legal profession, Richardson observes, “AI isn’t going to replace the need for critical thinking. We still need to prepare students to think like lawyers, and I don’t think that’s ever going to change.”

Judges, in the Morison and Harkens study, were ranked in the second quartile, because robot judges will provide quicker and cost-efficient judgments, with enhanced information, making justice more accessible to people. Nevertheless, although Susskind has predicted that online courts, working with disrupting technology such as AI, will intrinsically modify the duties of traditional litigators and of judges, he does not expect them to be capable of resolving ‘the most complex and high-value disputes’.[iv]

UCL has developed an AI judge that predicted the verdict of English cases concerning torture and degrading treatment with a 79% accuracy. In that 79% of cases, the AI systems provided the exact same verdict as the court itself. Nevertheless, improvement is to be made upon that 79% if AI technologies are to start replacing human lawyers. However, what is significant about this AI judge is that it is able to not only consider the legal evidence, but also to consider moral questions of right and wrong. This, then, illustrates that AI could potentially be a threat to the job of human judges in the future.

Regulations and laws are already changing around AI. Calo argued that AI-specific regulations will emerge, they will likely not be significant reforms but a continual, constant process of small steps that could apply to multiple areas including ‘consumer protection, privacy and tort liability.’ These regulations may subsequently have to be adjusted and adapted depending on the benefit or detriment that some of the AI systems will have in our lives. As the Law Society of England and Wales has emphasised, AI is still in the early stages of its development and therefore, they suggest that regulations should remain limited to first gain context of its forms and the potential ramifications of its use. Similarly, Stilgoe suggested that we first need to understand emerging technologies before we impose appropriate regulations.

However, businesses would like clarity on the regulations of the use of AI. Consequently, as the Financial Times reports, strict regulations on AI are desirable. The LSG suggests that AI systems must have strict liability, which will hold them accountable. This is consistent, with the IBM ethical issues on AI, as they indicated that holding AI accountable is crucial for ethical standards. Consequently, strict liability and the AI ethical standards developed by IBM, will ensure that AI will thrive in all areas, including the legal profession and the regulations can be sufficient to prevent the technologies from replacing humans. This is because the strict liability will apply when the AI has conducted harm to individuals and it is in the interests of justice to hold the coders who created the AI accountable. Accordingly, despite some unexpected scenarios where the coders could not have anticipated the actions of AI, it is only fair that this is so. In fact, this does not have to act as a deterrent to innovation, for if the coders conduct their operations ethically, there should be no reason for AI to act unethically.

AI is still in its infancy. Therefore, currently there are not many regulations regarding the use of AI. Appropriately, the AI Principles developed by the Organisation for Economic Co-operation and Development (OECD), to which the UK is a party, recognises five values-based principles for the responsible administration of reliable AI. Firstly, the OECD is proposing that AI ought to benefit people and the Earth by propelling inclusive progression, sustainable development and prosperity. Secondly, AI systems ought to be created with the intention to abide by the rule of law, human rights, democratic values and diversity, and they should involve proper safeguards. For instance, allowing human intervention where it is required to make sure we have a fair and just society. Likewise,Article 22(1) of the General Data Policy Regulations (GDPR), which provides that decisions should not be solely automated and subsection(3) provides that a data controller shall impose appropriate safeguards, which include the right of human intervention. Calo recognised that the EU’s GDPR is important in the regulation of AI, as through the GDPR, citizens can acquire information regarding AI-based decisions influencing them. He rightly identifies that public opinion is significant in this situation. If people as citizens or consumers outline their distress regarding the administration of AI, the reputation of companies could suffer as they attempt to build profitable and respectable businesses, “or by governments responding to those public pressures.” Accordingly, the OECD continued to suggest that there should be transparency and proper information given to the public regarding AI programs to make sure that the public understands AI-based results and can challenge them. Fourthly, AI programs shall operate in a strong, dependable and safe process for the whole duration of their use and probable risks should be continually evaluated and managed. Lastly, organisations and individuals advancing, establishing or running AI programs should be held responsible for their appropriate operation in alignment with the above principles. These recommendations are crucial and will likely influence numerous Government regulations. As the OECD has emphasised, although their recommendations are not legally binding, they are extremely influential. The fact that the OECD has the power to influence decisions of other organisations and governments is evident by the recognition of the G20 and their support for the suggestions made by the OECD. Additionally, as Calo asserted, just like with any disruptive technology, the government has a duty to regulate AI to be in the public interest and to make certain that the costs and benefits of AI are evenly dispensed everywhere in society. Consequently, the common matter in all of these suggestions, is the fact that AI should be used in a way that is beneficial and in the public interest.

Governments will need to play a central role to ensure that AI is beneficial to the legal profession. As Stilgoe implies, we cannot allow powerful private companies to createunlimited emerging technologies, without regulations. Similarly, Google suggests that Governments take GDPR as the foundation to ensure safety, privacy, fairness and accountability. The OECD has also urged Governments to enable public and private investment in research and development to stimulate innovation in reliable AI; promote attainable AI ecosystems with digital facilities and technology to share information; ensure a policy setting that will allow implementation of reliable AI; empower the AI experts and help employees adapt; and collaborate across borders and branches to develop honest administration of trustworthy AI. These regulations should be implemented immediately by Governments, as they are not regulations which tend to hurt innovation, they are merely ensuring that AI created from the day of the regulations onwards, is reliable. Consequently, if the Government implements fair and transparent measures to the development of AI, it is in the right direction to beneficial and reliable AI.

Overall, AI is already influencing the legal profession and an even bigger impact will likely be made in the future. Whilst it is highly improbable that AI will be able to replace human lawyers and judges in the near future, due to the lack of their interpersonal skills, there has been impressive work done by AI thus far like the LawGeex’s win in a challenge against human lawyers. The use of AI technologies is currently beneficial since it assists human lawyers to operate their mechanical every-day functions more efficiently, cost-effective and accurately. As Dr Aletras emphasises, “we don’t see AI replacing judges or lawyers, but we think they’d find it useful for rapidly identifying patterns in cases that lead to certain outcomes.” These powerful incentives will drive the mass market success of AI in the legal profession. However, the use of AI will only be beneficial assuming that fair and transparent AI is imposed by the Government to ensure that AI is trustworthy, ethical and enforced in a way that prevents the replacement of human lawyers.

[i] Addleshaw Goddard Guest Lecture, ‘Legal Technology’ (Newcastle University, Law School Lecture Theatre, 23 October 2019)

[ii] John Morison and Adam Harkens, ‘Re-engineering justice? Robot judges, computerised courts and (semi) automated legal decision-making’ (2019) 39 Legal Studies 619; R. Susskind Tomorrow’s Lawyers: An Introduction to Your Future (Oxford: Oxford University Press, 2nd edn, 2017)

[iii] Nick Bostrom, ‘Superintelligence: Paths, Dangers, Strategies’ (Oxford University Press, 1st edn, 2014)

[iv] R Susskind Tomorrow’s Lawyers: An Introduction to Your Future (Oxford: Oxford University Press, 2nd edn, 2017) 121

While the heinous crimes of former glam rock star Gary Glitter are forever etched into the public consciousness, the proposal for well-known musicians convicted of sex offences to have their royalties earned from the use of their creative works confiscated (in addition to their statutory punishments) is difficult to justify from a legal perspective. In such notorious cases, there is a need to: (i) maintain the rule of law, (ii) resist “angry mob” cries for retribution, (iii) prevent judgments and punishments which Jeremy Bentham called “private opinion in disguise” or “the mere opinion of men self-constituted into legislature” when railing against the common law in general,[i] and (iv) maintain predictability and uniformity of the application of law. This post will set out the essential nature of the Intellectual Property (IP) rights associated with creative artistic works, followed by a short discussion of the punishment regime for sexual offences in England and Wales to conclude that the proposal to confiscate royalties is not justifiable on legal grounds.

IP rights are a means for individuals to make a living from their work. While artisans and craftspeople can make a living by selling their specialised products or manual skills (which are not easily copied), those whose living is made by using their skills to produce ideas or creative works such as music and literature which others find value in (such as authors and songwriters) suffer in that their work is often easily copied. Copyright – the right of an author to prohibit another from profiting from their work – is a means for enabling the author to make a living from their original work.

A very early reference to personal IP rights comes from Ancient Greece. A law stated that if a cook came up with a recipe for his restaurant, nobody else was permitted to prepare that dish for a year, allowing the cook to make an income from his skill and creativity.

Early composers, on the other hand, had to make private petitions to their monarch for protection of their work. Lully in France enjoyed the Privilège du Roi, an exclusive authorisation to print a work, granted by an authority (namely, the King). Both Lully and, years later, his great admirer Handel in England received Letters Patent, which provided both with exclusive licenses to sell and profit from their music. Handel was an impresario – his oratorios, although mainly on biblical themes, were often first presented in theatres.[ii] Putting on performances and selling copies of the sheet music was his living, and had the advantage (as with Lully and other composers) of not having to rely on patrons. More importantly, these exclusive licences allowed composers to prevent others from making copies of their works, selling them, and keeping the proceeds, thereby denying the composers of that income.

In England, this ad hoc private approach was replaced by the Statute of Anne, known as the Copyright Act 1710, “to prevent printing by third parties without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families.” The principle is that artists may profit from their creative labour just as any other worker, if people find value or enjoyment in it.

Modern creative rights evolved from this principle, and are found in the Copyright, Designs and Patents Act 1988. Broadly speaking, as there are some variations, this gives composers of musical works a copyright duration from the creation of the work extending to 70 years after the end of the year of their death (s.12), and performers a copyright over their recorded performance of 50 years from release of the recording (s.13). This takes into account the fact that creative people rarely have any regular salary. Being property rights, their benefit may be passed on to inheritors after the death of the owner, or disposed of according to their will.

Gary Glitter is notorious, but not unique, as a high-profile musician convicted of crimes which are now covered by the Sexual Offences Act 2003 (Ian Watkins, the disgraced former lead singer of Lostprophets, is another example). The Act sets out the punishments to be applied for each offence it includes, usually a term of imprisonment.

Hale et al., discuss the idea of a “Folk Devil”, as “… those figures in society we are encouraged to dislike and avoid, e.g., child sex offenders (also, in history, football hooligans, …). The target can change. The paedophile is the folk devil of our times.” [iii]O’Brien, defining sex crimes and, in particular, those involving children, describes the concept of moral panic as an exaggerated public outcry, based on little or no evidence and thereby missing the main point of such offences mostly being committed by close family members or friends.[iv] Though this does not diminish the severity of the crime, it may lead to “angry mob”-like reactions which may cause more harm than good. An offender for whom there may be a hope and capability of rehabilitation may, if it appears that all of the rights to their works are to be confiscated along with their potential to earn a livelihood, simply give up, undermining any efforts at re-integrating them into society, and may increase the risk of recidivism. This sounds like a harsh judgment of people who make up “angry mobs”, but serious mistakes have been made.

Parliament sets out specific punishments for specific crimes. There is also a statutory sentencing framework since 1991, and now in the Criminal Justice Act 2003, so judges do not have unfettered discretion in imposing a sentence – i.e. they may not act arbitrarily. Under Article 7 of the Human Rights Act 1998, a heavier penalty than the one which was applicable at the time the criminal offence was committed shall not be imposed. Any punishment beyond this, or one that is not specified by the law is therefore arbitrary, and consequently contrary to the rule of law. The application of criminal law confines itself strictly to the offence(s) concerned, and punishment is prescriptive with relatively limited scope for variation, with the intention that it is appropriate and severe enough for the offence.

This is a specific case in which IP, criminal law and, to an extent, criminology combine in an unusual manner.

In such cases, confiscation of future IP rights from someone convicted of an unrelated offence is impermissible because this is not prescribed in the relevant statute. Further, it is not the case that the royalties which a convicted musician in the present context collects for their existing work are proceeds of crime, which under the Proceeds of Crime Act 2002 could be confiscated. The 2002 Act refers only to assets acquired as the result of unlawful activity; income and assets lawfully acquired during their everyday occupations are not covered by the act. Similarly, in some US states, so-called “Son of Sam” laws have been enacted which seek to prevent convicted felons from profiting from their crimes by selling their stories or otherwise benefiting from publicity due to their criminal notoriety. These laws have often been struck down as infringing First Amendment rights to freedom of speech under the US Constitution, though an amended statute still exists in New York. However, this goes no further than income directly related to the crime.

Confiscation is therefore unjustifiable through a legal lens as it is arbitrary and contrary to the rule of law, which requires that convictions should only be made for crimes specifically laid down by law, and that only the punishments provided by that law should be applied, a requirement that is stated clearly in Article 7 of the European Convention on Human Rights. A liberal society committed to the rule of law which aims both to punish and rehabilitate, as far as possible, its worst offenders does not need to shy away from harsh punishments, nor compromise its principles, but must nevertheless act fairly and resist arbitrary retribution.

[i] Quoted in R Wacks, Philosophy of Law, a Very Short Introduction (OUP 2006) 28.

[ii] D Hunter, “Patronizing Handel, inventing audiences: the intersections of class, money, music, and history” (2000) Vol XXVIII/I Early Music 32-49.

[iii] C Hale et al., Criminology (OUP 2005).

[iv] M O’Brien and M Yar, Criminology. The Key Concepts, (Routledge 2008)

The US has recently authorised the use of sanctions against the International Criminal Court (ICC) in response to the authorisation of an investigation into Afghanistan for alleged crimes against humanity and war crimes. Other state parties to the Rome Statute, in the form of a collective statement, have condemned these sanctions and reaffirmed their support for the Court. This provides ample opportunity to reflect on what this might mean for the ICC going forward. Whether this recent illustration of state support might constitute a watershed moment of changing state attitudes towards the Court in the future, cannot be predicted with certainty. Indeed, with the presence of potent considerations militating against such a moment, for example, the increasing tendency for state rhetoric to be unaccompanied by meaningful action, and that not all states party to the Rome Statute have declared their support, perhaps the best we can do is only hope for such a moment. A watershed moment would have significant implications in terms of boosting the Court’s effectiveness and perceived legitimacy.

The ICC was created on the 1st July 2002, by the widespread signing and ratification of its founding treaty, the Rome Statute 1998. The ICC is a remarkable achievement; it is the world’s first and permanent international criminal court designed to try and punish the perpetrators of some of the worst crimes known to humanity. Its jurisdiction extends to genocide, crimes against humanity, war crimes, and crimes of aggression (Rome Statute 1998, article 5). Since its inception, the Court has made invaluable contributions to international criminal justice by securing high-prolife convictions, such as the recent conviction of Bosco Ntaganda for war crimes and crimes against humanity in the Democratic Republic of Congo. The Court currently has 13 situations under investigation, and 28 ongoing cases, with one of its most recent investigations being the primary subject of this blog post, the investigation into Afghanistan for crimes against humanity and war crimes.

On the 5th March 2020, the Court authorised the current prosecutor, Fatou Bensouda, to commence an investigation into the Islamic Republic of Afghanistan for alleged crimes against humanity and war crimes committed since May 2003. They include, inter alia, murder, extrajudicial killing, cruel treatment, and intentional attacks against civilians,and are alleged to have been perpetrated in the context of the continuous armed conflict between pro-Government forces and anti-Government forces, such as Afghanistan military forces and the Taliban. The prosecutor also alleges that war crimes have been committed by the US military and CIA personnel against individuals in Afghanistan detention facilities, including torture and cruel treatment, rape, and serious infringements of personal dignity. These were allegedly perpetrated in order to extract information from the Taliban/Al Qaeda who may have had links or involvement with the 11 September 2001 attacks, as well as for information about the group generally such as locations and planned attacks. Hitherto, investigations into possible crimes committed by the US military have been exceedingly difficult because the US it not a party to the Rome Statute. The ICC can exercise jurisdiction in this case because the alleged conduct occurred in Afghanistan, a state party. This is a positive development itself, in that the Court is continuing to expand its areas of investigation and striving to end impunity for these egregious crimes. The US has responded in a very hostile manner, through making various threats and imposing sanctions on the Court. When considering the background context and history between the Court and the US, their belligerent reaction comes as no surprise.

It is no state secret that the US is not a fan of the ICC, nor international law more generally. Besides not being party to the Rome Statute, they are not party to major international human rights treaties such as the International Covenant on Economic, Social and Cultural rights, and although they have signed and ratified the International Covenant on Civil and Political Rights, they have refrained from signing its first optional protocol, which allows individuals to make complaints of violations under this treaty. For the US, safeguarding sovereignty is their central concern and any attempts to encroach upon it is met with fierce resistance. The US’s reluctance to join the ICC stems from a fear that they will cede jurisdiction to the Court, which will lead to US servicemen being prosecuted.[i] In particular, a fear their military personnel might be prosecuted by an unrestrained and unaccountable prosecutor for their ‘anti-terrorism’ campaign post-9/11 which is alleged to include, inter alia, illegal acts of torture and airstrikes.

Consequently, over time, the US has taken active steps to undermine the Court’s effectiveness and legitimacy. For example, the US has concluded over ninety bilateral agreements with other states agreeing not to transfer to the Court US persons who might have committed crimes under the Court’s jurisdiction without the US’s consent.[ii] This significantly diminishes the Court’s effective functioning in the fight against impunity.[iii] In 2018, John Bolton, when he was the US’s national security advisor, stated: “[w]e won’t cooperate with the ICC. We will provide no assistance to the ICC. We will let the ICC die on its own.” Likewise, Trump, in addressing the UN, stated: “the ICC has no jurisdiction, no legitimacy, and no authority. We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.” Last year, as soon as the prosecutor merely signalled her intention to investigate Afghanistan, the US revoked her visa to prevent her entering the country. The US warned they were “prepared to take additional steps, including economic sanctions if the ICC does not change it course.” This is exactly what they have done. In response to the Court’s decision to commence the investigation into Afghanistan, Trump authorized the “blocking [of] the financial assets of certain ICC staff and [the imposition of] visa restrictions on them and their immediate family members.” Measures of this sort, designed to deter the Court from pursuing its investigation into Afghanistan, are tools normally reserved for perpetrators of international crimes and human rights violations, not individuals working for an institution seeking to hold them accountable. These sanctions are unsurprising when considered in the light of the US’s historic stance towards the ICC. However, conversely, what is surprising is the reaction by the other state parties to the Rome Statute.

The sanctions against the Court fly firmly in the face of justice, but rather than leaving the ‘naming and shaming’ to the likes of NGOs, the President of the Assembly of State Parties to the Rome Statute, O-Gon Kwon, called upon the state parties to the ICC to share their condemnation and reaffirm collective support for the Court. This resulted in 67 state parties to the ICC signing a collective statement which “reconfirms [their] unwavering support for the Court as an independent and impartial judicial institution.” The statement mentions states are committed to “uphold and defend the principles and values enshrined in the Rome Statute and to preserve its integrity undeterred by any measures or threats against the Court.” They “will therefore continue to respect [their] cooperation obligations under the Rome Statute… and call on all States to ensure full cooperation with the Court for it to carry out its important mandate of ensuring justice for the victims of the most serious crimes of international concern.” This is a refreshing development to witness; amidst the widespread inhumanity that has permeated the conflict in Afghanistan, states have firmly denounced the sanctions taken by the US and reaffirmed their commitment to ending impunity and supporting the Court, a humanising moment. Although, whether this has the potential to constitute a watershed moment for the Court is a difficult question to answer.

Going forward, will states be more supportive of the Court? Will they continue to actively denounce actions intended to undermine the Court’s legitimacy and effectiveness? Will states actually comply with their obligations under the Rome Statute, such as extraditing indicted individuals to the Court? (Rome Statute, article 89). Will they actively encourage cooperation with the Court? Are states finally going to follow through with their commitment to help “guarantee lasting respect for and the enforcement of international justice”? (Rome Statute, preamble). The collective statement does signal an intention to do so, but a degree of prudence needs to be exercised in not getting too ahead of ourselves.

There are important countervailing factors to consider when speculating. Firstly, there exists a paradox whereby the values underpinning international criminal justice are ones which the international community claim to agree and endorse, yet simultaneously fail to provide the coercive powers and will to implement.[iv] For instance, the Court issued its first arrest warrant for al-Bashir, former president of Sudan, in 2009 for charges ranging from crimes against humanity to genocide, but this was ignored by various states in Africa, allowing him to travel freely around the African Union for years,[v] until his capture by Sudan’s military in 2019. Indeed, states agree with the ICC in principle, but in practice are not disposed to offer the help and cooperation the Court needs to successfully achieve its goals.[vi] Secondly, and compounding this, only 3 out of the 13 states where an ICC investigation is currently ongoing have endorsed the statement. Similarly, only 67 out of the 123 state parties to the Rome Statute have endorsed it. Therefore, is this collective statement just mere rhetoric, not widely enough endorsed to be meaningful, or does it signal times of changing attitudes vis-à-vis the ICC? Whilst we cannot conclusively answer that question now, one can hope this is a watershed moment for the Court. Its implications would be important for several reasons; active state support would furnish the Court with some much-needed legitimacy, and improve the Court’s effectiveness, in turn, also furthering its legitimacy.

Many scholars believe the ICC to be “living on borrowed time;” a mere temporary and failed experiment which is in a constant battle to demonstrate its merit.[vii] In large part, this is because the Court has suffered extensive criticism; they range from accusations that the Court has secured inadequate convictions, is too slow in delivering justice, has failed to adequately deter criminals, and is biased towards African states. Without going into their merits here, they have damaged the Court’s legitimacy to the point of crisis; the Court is rarely perceived in a positive light.[viii] If this is a time of changing state attitudes towards the ICC, this would likely have the effect of vesting the Court with some much-needed legitimacy; if the Court’s objectives and operations are more readily endorsed and supported, it might be viewed with less scepticism and lament. Similarly, and inextricably linked to the following point, a watershed moment would increase the Court’s effectiveness, in turn likely bolstering its legitimacy.

The ICC has no enforcement mechanism of its own; there is no readily available world police force to give effect to its arrest warrants and apprehend indicted subjects. The reality is that apprehension is states’ responsibility. As such, the Court’s effective functioning is dependent on state cooperation and support. This was aptly demonstrated in the al-Bashir case whereby the African Union’s reluctance to arrest him allowed travel around the African Union uninhibited. Even with his capture, he still has not been surrendered to the Court, illustrating the ICC is at the mercy of states; without cooperation there can be no convictions. The Court originally ruled against opening an investigation into Afghanistan due to fears that Afghanistan authorities, the Taliban and the US would not cooperate. In the absence of state support, the ICC will likely remain to be perceived as a weak, ineffective, and illegitimate institution. This is precisely why changing attitudes towards the Court is so important. If states follow through with their promises made in the statement, this will furnish the Court with some much-needed legitimacy, and help eradicate some of the criticisms mentioned above, for instance, helping the Court secure more convictions, further bolstering its legitimacy. Nevertheless, a note of caution is required in taking this development as a given. Rhetoric without results is still the order of the day internationally, but this does not mean we cannot hope for such an occurrence. The ICC provides victims all over the world with hope – “hope that no one is above the law and that their despair can be salved with justice- that somebody will listen to their tales of horror- that they are not alone.”[ix] The least we can do is hope – hope that this is a watershed moment for the Court, and that states will continue to support the permanent international institution designed to end impunity for egregious crimes and provide justice to victims.

Ethan Gren graduated from Newcastle Law School in 2020 from the LLB (International Legal Studies) and has an avid interest in researching contemporary problems facing both international human rights law and international criminal law.

[i] Dominic McGoldrick, The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing 2004) 339

[ii] Sean D Murphy, ‘U.S. Bilateral Agreements Relating to the ICC’ (2003) 97(1) The American Journal

of International Law 200, 201

[iii] Human Rights News, ‘United States Efforts to Undermine the International Criminal Court: Legal

Analysis of Impunity Agreements’ (Human Rights Watch) Available at: https://www.hrw.org/legacy/campaigns/icc/docs/art98analysis.htm

[iv] Marina Aksenova, ‘International Criminal Courts and Tribunals’ (2017) 30 LJIL 475, 477

[v] Dawn L Rothe, James Meernik and Pordis Ingadottir, The Realities of International Criminal Justice (Brill 2013) 154

[vi] Leila Nadya Sadat and S Richard Cohen, ‘The New International Criminal Court: An Uneasy Revolution’ (2000) 88(3) Geo LJ 381, 444

[vii] Frederic Megret, ‘The Anxieties of International Criminal Justice’ (2016) 29(1) LJIL 197, 199

[viii] Marieke De Hoon, ‘The Future of the International Criminal Court. On Critique, Legalism and Strengthening the ICC’s Legitimacy’ (2017) 17(4) Int CLR 591, 593

[ix] Leila Nadya Sadat, ‘A Rawlsian Approach to International Criminal Justice and the International Criminal Court’ (2010) 19(1) Tulane Journal of International and Comparative Law 1, 25-26