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.