When should the ICC step in?
Jennifer Trahan of the Center for Global Affairs discussed the international justice system at Wagner today. She traced the history from Nuremberg through Yugoslavia and Rwanda, and described current issues with the International Criminal Court (ICC), including its warrant for the arrest Sudan’s President al-Bashir. She displayed impressive knowledge of the intricacies and politics surrounding the prosecution of genocide, war crimes and crimes against humanity.
However, the audience was left confused about a critical issue: when crimes should be prosecuted at the international level rather than within the affected country’s own justice system. By Trahan’s own admission, the criteria are unclear. The ICC’s founding statute gives it jurisdiction when the national government is "unable or unwilling to genuinely prosecute." We can imagine situations that obviously trigger this clause: for example, when legal capacity is limited, or when accused war criminals have powerful allies. But what about ambiguous situations? A dictator’s successors may decide to grant him immunity (as Chile did for Pinochet) or a post-conflict government may decide that prosecution would hurt the cause of national unity.
The crux of this problem: the international community’s interests may diverge somewhat from the affected country’s. Both are interested in justice generally. But while the international community is concerned with the potential deterrence created by high-profile cases, national leaders in the affected country are more interested in how prosecutions might impact their country’s ability to move forward.* There is no a priori reason to think that a single course of action would serve both of these goals. When the goals conflict, the ICC statute language apparently gives the international community a trump card. The country’s interests seem to play no role in whether the ICC plays that card.
The affected country’s interests should be paramount when deciding how to pursue justice. The result of any process will be much more important for that country than for any other. Furthermore, that country will know how to reach the optimal result better than any other. One might object that a post-conflict country is unlikely to articulate or pursue a unified "country interest". Factions will still exist, with a mix of noble and less-than-noble motivations, and they may disagree on the best route forward. But that’s exactly the point. The country needs a way to heal, and part of that requires figuring out how to heal.
The international community certainly has an interest in ensuring punishment of war crimes and crimes against humanity. There are instances of clear national governance failure that necessitate international action. But the presumption should always be for the country’s leaders to decide a course of action. The international community should tread carefully before deciding that it knows best.
By: Dave Algoso
*Of course, both groups must also respond to the political demands of their various constituents. But let’s limit this discussion to the moral reasoning and accompanying public rhetoric that is used.
3 Responses to “When should the ICC step in?”
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In as much I agreed with Jennifer on many of her assertions as to the ICC’s roles in global politics, relative to human rights and violence, I think the ICC has no real relevance.
The ICC is use as an renegade institution targeted at developing nations only. many of the conflicts and instabilities in poorer and developing countries are engineered and supported by the greed of the West.
In addition, Western nations do not honor the ICC when it comes to matter involving their citizens. They only expect other, particularly those in the developing regions to be the only ones answerable to the ICC. This has rendered the ICC as a toothless bulldog. I will hope that will corrected if we all want the ICC to be the standardized forum for international justice.
Dave, while I see your point, I think it may be unfair to criticize the ICC too harshly. First of all on the idea that the ICC might not consider the country’s interests in the prosecution of war crimes… It seems to me that the ICC seriously considers these matters before proceeding with prosecutions, and is meant only as a last resort when national courts are unable to prosecute…. I’m not saying this may not be politically difficult, but perhaps it is a good thing in the end.
The ICC has prosecuted four cases so far, all of which are in Africa. (Uganda, CAR, Congo, and Sudan). I agree that national courts would ideally prosecute their own war criminals, but in reality it is sometimes politically more difficult and costly to do so. Having an international court, willing to take on the diplomatic and political costs necessary to make a ‘statement’ (that political leaders are not exempt from rule of law) is perhaps the greater good. And the argument for deterrence might in fact be powerful enough to give the ICC further legitimacy. Looking at the ICC’s history, it does not seem to me to be overextending its reach. It has opened only four investigations, all in a continent where there may in fact be a deterrence argument for future leaders.
Finally, I agree that a country should be able to heal. But when justice has not yet been served, perhaps having an ICC outside the country gives the opportunity to lessen some of the political costs, and allow healing to more effectively take place. It’s hard to say, and hard to judge. But I still think the ICC is right to, at times, step in for the cause of justice.
Ms. Jenna, in no way am I disputing your sound and logical analysis or understanding of the ICC; neither have I attempted to suggest that Ms. Trahan’s interpretation of what the ICC does or stands for is absolutely irrelevant.
Here is my concern, and if I am wrong, at least, I hold this view very strongly. My concern has and continues to be this. Is it only in Africa or developing regions that human rights violations exist? For one to think so would be indeed unfortunate. And honestly, this is one reason why many of the problems in the world today will not easily galvanize diplomatic solution in resolving international conflict and promoting collective global security.
There are a number of western nations that have their citizens and leaderships commiting gross human rights abuses or violations. Even in instances where those violations and abuses are glaring, the ‘big powers’ tend to cover them. Why is it that the United States is not a signatory to the ICC? Have you ever heard a Russian, French, British or Chinese citizen before the ICC? Unless we can blindly believe that none of these countries have people / citizens commiting human rights abuses, we will always be viewed as hypocrites and continue to be hated and disrepected by smaller nations.
Think for a moment, and imagine what most peaceful people undergo in China and Russia. Imagine the torture and inhumane catasphes in those nations. Imagine the many wars that have been fought in recent years by different groups, including the US. Western nations are not perfect, unless one suggests otherwise. This in some way amount to the many reasons why America’s influence is draining down in global challenge. Our foreign policies are self-serving, deceptive and hypocritical. This also applies to countries like Britain, France, Russia and China, the big members of the UN Security Council.
This same type of hypocrtical and deceptive mentality applies to the issue of nuclear weapons. There are a number of countries that have such weapons, despite the fact that every reasonable and intelligent person (the entire world) knows that such weapons are dangerous and unwanted in our societies. India, Pakistan, Russia, Israel, the United States, France, Britain to name a few; all have this deadly weapon. Yet the international community is exerting unnecessary pressure on some other countries simply because they want to pursue what others already have.
For example, the case of Iran. Many people understand that Iran has a crazy regime. Many of us also do not want the unreasonable mullahs of that country to wake up from bed one morning and say “god” tells them in their dream to test the nuclear weapons. Therefore the regime should be stopped in every way possible from obtaining such weapons. On the other hand, it is absolutely adnormal and illogical for other people to justify why certain nations must continue to possess nuclear weapons.
The example of nuclear weapon is used in advancing the case about the ICC’s and its deceptive neo-colonialist works. The ICC can be an objective and international body only if it is tasked with advancing inclusive justice and avoids selective justice. Selective justice is a miscarriage of justice and an abuse of fairness.
If one critically reviews the entire ICC’s protocol and past works, it is no doubt another form of neo-colonialism aimed at the continuous subjugation of Africa. Some world powers use the ICC to intimidate African leaders that refuse to obey their orders and exploitative motives. If this continues, the ICC will one day be totally irrelevant, especially when African nations decide to pull out or collectively refuse to recognize its jurisdiction. While I support the ICC as a worthy mechanism, I strongly think it should cover all nations, irrespective of their strenghs and wealth.