Speaking of Justice…

Here is an interesting essay by Owen Fiss, a law professor at Yale. I tend to be an advocate of the International Criminal Court, particularly because it (theoretically) signals the end of impunity for perpetrators of atrocities. I find his basic argument, that the internationalization of prosecution is unnecessary because nations usually have the capacity and ability to deal with these issues through their own justice system, to be quite potent:

The crimes may have a global dimension—human rights, after all, are universal—yet national tribunals are capable of punishing persons for human rights violations under either ordinary criminal law or the same norms used by international tribunals[…]
Justice is also a political obligation, for it defines the foundational commitments of a given regime. The willingness of a regime to punish human rights abuses reveals—to its own citizens and to all the world—its true character.

I do believe that, in general, it is important to let States take responsibility. This is true in terms of post-conflict reconstruction, as it is true in terms of developing certain sectors of public services, such as health and education, where the intervention of foreigners can be detrimental to long term sustainability. Thierry Vircoulon has a great paper on this topic.

However, I’m not entirely convinced by the argument – if States chose not to prosecute these types of crimes (for mostly political reasons), or if the outcome is influenced by political considerations, then the whole process becomes a farce. As Fiss notes, the ICC only has African cases on its docket – even though plenty of crimes against humanity have been committed in other parts of the world, and not necessarily only in the context of civil wars… The ICC’s inability -thus far- to prosecute Western criminals of war (and they exist!) leads to the type of argument Fiss is making. This is precisely the same line of thinking that American detractors of the ICC use – that the US is able to prosecute and handle these cases within their own national jurisdiction, and that the ICC basically encroaches upon their sovereignty.

I would only agree with Fiss if it were the case that, left to their own devices, nation States would prosecute these crimes. He cites the case of Argentina,

In 1985, for example, leaders of the junta that ruled Argentina from 1976 to 1983 were convicted in Argentine courts under domestic criminal statutes for their roles in authorizing extrajudicial killings, torture, kidnapping, and other crimes.

But there are so many counter-examples for this – Iraq comes to mind. The circus that was Saddam Hussein’s trial and his brutal execution were an enormous shame – this could have been the opportunity for the ICC to show its worth. Also, the current debacle with the Cambodia trials for the Khmer Rouge also demonstrates how political considerations disturb these crucial legal proceedings.

Until the ICC becomes truly global in its reach – meaning that it doesn’t only prosecute African war criminals – it will continue to be criticized (and, I suppose, rightly so). But that is entirely dependent on the willingness of States to at least complement their own prosecution of these crimes with a parallel international mechanism (like Rwanda did with the gacaca, for instance).

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