International courts and tribunals have been active for close to two decades and yet the impact of their work remains questionable. On the one hand these Courts demonstrate that individuals responsible for genocide, war crimes and crimes against humanity are no longer above the law and can be prosecuted. On the other hand, only a few individuals have been brought before justice and no Western politician has ever been brought to trial. This begs the question: are these tribunals more symbolic than efficient, and merely an instrument for the more powerful Western States?
By Daniele Archibugi
Open Democracy2 August 2011
A new institutional actor has started to be a recurrent character in world politics: the International Criminal Tribunal. Media, politicians and public opinion at large are increasingly discussing the cases brought to the attention of these new Tribunals. Public opinion is seldom aware of the judicial details, and this is hardly surprising since there has been a proliferation of tribunals, treaties and covenants, each of them with different tasks and objectives. In spite of the substantial differences between permanent Courts and ad hoctribunals, there is a recurrent theme that allows us today to talk about an emerging global criminal justice: aseptic judicial institutions are at work in order to bring before justice those responsible for major crimes.
In the last few weeks, we have heard that:
- The International Criminal Court has impeached Muammar Gaddafi along with his son Saif and its military intelligence chief for crimes allegedly committed against Libyan insurgents since March 2011.[1]
- Ratko Mladić, after hiding for many years, has now been arrested and will soon join Radovan Karazic to face the charges linked to atrocities committed in Bosnia in 1992-1995 before the International Special Tribunal for the crimes committed in the former Yugoslavia.[2]
- With the arrest of Goran Hardzic, all the 161 men indicted by the International Special Tribunal for the crimes committed in the former Yugoslavia have been arrested. [3]
- The International Tribunal for Lebanon requested four arrest warrants in association to the murder of the former Lebanese President Rafic Hariri in the terrorist attack of 2005.[4]
- The so called Khmer Rouge Tribunal started the trial of four suspected criminals responsible for the killing of nearly two million people in 1975-1979 on June 27th 2011 .[5]
Even more interesting will be to record the many times which the intervention of these tribunals has been requested by activists for global justice, retired politicians and victims of gross human rights violations. In the last weeks, we have heard calls addressed at the International Criminal Court to impeach Syrian President Bashar al-Assad forcrimes committed against civilian protesters[6] and the request that the killings of civilians committed by unmanned drones should also be prosecuted as war crimes.[7]
Can the increasing activism of international criminal justice be seen as a victory of human rights campaigners?
For decades supporter of human rights have stressed that a crime does not cease to be a crime if committed by a head of state or in the name of a state (as in the case of Libya and Syria). Since National Courts have often proven unable or unwilling to prosecute suspected criminals, especially if they were close to the incumbent governments, there was the need to generate judicial institutions that could replace them. International Courts could be the solution, especially if they could prove to be impartial, timely and grounded on the rule of law. There are at the moment several criminal courts that are international, either because they are international organizations or because they are composed by national and international judges.[8]
After nearly two decades of activism of these international criminal courts, it is possible to draw a first and provisional assessment.
Have they managed to respond to the requests made by global civil society and human rights activists and to provide impartial judicial review of major crimes and major criminals? Public opinion and media are very keen to provide coverage every time a suspected is imprisoned or processed. International law theory experts have been keen to debate the issue.[9] In spite of all the interest, it seems that the outcome delivered by these Courts as well as their future continues to be highly uncertain.
An optimist will see in the ongoing trials the demonstration that egregious crimes, such as those defined already in 1949 by the International Law Commission as “Nuremberg Principles”,[10] are no longer left unpunished. It is a fact that tribunals have become more numerous and that the number of trials has increased. This is certainly good news.
But not even the most fervent supporter of the emerging global criminal justice will argue that the cases filed by the Courts show impartiality. Nor can it be argued that there is a precise hierarchy which sees the most egregious criminals most likely to be charged. The optimists will argue that the fact that a criminal is not indicted is hardly a justification for not indicting any criminal. Indicting two criminals is better than indicting one, but indicting one is always better than indicting nobody. Nevertheless, a careful analysis of the cases presented shows that many aspects still need to be discussed. We raise here some of the core issues.
The first question concerns the timing of criminal investigations. At one extreme, some trials are occurring many decades after the crimes were committed. Often these trials are bringing before them men who are politically dead and physically almost dead.
In the court of public opinion, there is the enormous contrast: on the one hand, the brutality of the crimes committed when these men where in power, and on the other hand their age when they are held accountable.
This was a familiar fact when Nazi criminals in their 80s or even 90s were caught and brought to justice several decades after the end of the Second World War. Something similar is happening today. The crimes committed in Cambodia are at least 30 years old; those committed in Bosnia are already 15 years old. It is not easy to be willing to punish a criminal, even an egregious criminal, when he is conducting his defense with medical certificates.[11]
These processes are more useful in developing an historical consciousness than in punishing a few killers. Although justice is still needed for the victims and also to make re-conciliation possible, the punishment that can be inflicted on the culprits appear to be irrelevant, even more if compared to the magnitude of the crimes committed. The judge becomes something close to an historian.
At the other extreme, we see legal procedures, such as the indictment of Gaddafi and the request to indict Assad, that are occurring in the very middle of political crises, rebellions and civil wars. In the case of Libya, the ICC is intervening when a military intervention of Western powers is underway. In these cases, judges are becoming political players and certainly not historians.
The second question concerns the number of the people being brought to trial. Many of the Khmer Rouge culprits, including Pol Pot, the leader himself, have died and have not been affected at all by criminal justice. At the moment five persons only have been indicted and certainly they are not the only ones responsible for the killing of nearly two million persons. The International Criminal Tribunal for Rwanda has been more active, but still the indicted have numbered fewer than one hundred (compared to an estimated 800,000 hundred individuals killed in the 1994 genocide).
As a repressive instrument, it seems that these tribunals are more symbolic than effective. As preventive instruments, they might hopefully deter genocides in other parts of the world, but their role within these countries is rather modest. When incumbent heads of states are indicted, there is at least the satisfaction to strike the incumbent politicians.
The third and major question regards the selectivity of the cases which are processed by international criminal justice. So far, all the individuals indicted have clashed with the major interests of Western powers.
No Western politician that has ever been indicted. The alleged crime of aggression committed by George W. Bush and Tony Blair, among others, has been totally dismissed by international criminal justice and it has been confined to the fantasy of novelists.[12] The bombing of innocents in Iraq, Afghanistan, Pakistan and elsewhere perpetuated by the CIA drones, initiated by the Bush administration and even intensified under the Obama administration, has not yet received any attention from international criminal courts even if they can classify as war crimes.
Who should be held responsible for such selectivity in the investigations of international criminal tribunals? Some may argue that this selectivity is imposed on Courts by the Treaties and Statues generated by their creators and funders, namely the states: for example, the ICC has no competence over crimes committed by states that have not signed its treaty (such as the United States).[13]
This is certainly true, but to accept the argument seriously undermines the idea that the emerging criminal justice is in any genuine sense an independent judicial power. Moreover, the Courts have been very reluctant to use even the few instruments in their hands if they were to damage Western states.
Let me cite two significant cases: the United Kingdom is an ICC member state, and the war crimes committed in Iraq could have led to some investigation. The International Criminal Tribunal for the former Yugoslavia had the competence to investigate the use made by NATO in 1999 of cluster bombs and impoverished uranium weapons. But when NATO failed to respond to the Prosecutor, no further action was taken.
Those who campaigned in favour of international criminal tribunals had the hope that these new institutions could contribute to a better balance of power. So far, it seems that they are operating in the opposite direction, namely they are providing an additional legal instrument to the strong global political players against the weak ones. In other words, we are facing another case of the justice of the winners already experienced during the Nuremberg and Tokyo Processes at the end of the Second World War.[14] None of the individuals indicted are gentlemen and all of them are directly or indirectly responsible of vicious crimes. But they are not the only ones. And if Western enemies become the only ones to face consequences in criminal courts for their crimes, the overall architecture of a more comprehensive cosmopolitan law will certainly be impoverished.[15]
What can be done?
It is certainly too early to abandon the dream of a universal criminal justice. The times where all the peoples of a state could be held responsible for the wrongdoings of their leaders has passed long ago. The so-called international community should offer protection to individuals who are seriously abused by their own government.
Still, it should be acknowledged that, so far, the existing regime of international criminal justice has been designed selectively and it is much more likely to affect weak and non-Western players than powerful Western ones. The crime of aggression, that is, the crime that could more seriously worry powerful Western states, has been defined in such a way as to make it entirely non-effective in the 2010 Kampala Conference: the Prosecutor can only be activated with the consent of both the aggressed and the aggressing parties.[16] And, as usual in cases that regard Western powers, the ICC will not acquire competence before 2017. If we want to avoid the noble ideal of an international criminal justice becoming simply a tool in the hands of Western powers, a major mobilization is needed.
The first thing to be done is to force the existing judicial institutions to be more daring and more independent. This implies to force them to use their powers and competencies beyond what the great powers allow them to do. The New York based Global Policy Forum, for example, has aptly produced a “rogue gallery” containing a “sample of well-known individuals who are accused of major crimes, yet continue to elude prosecution”.[17] The gallery includes Western politicians who continue to go unpunished. Such galleries would need to be continuously updated by non-governmental organizations and other institutions of global civil society. Pressure by global public opinion may somehow force the existing institutions to be more comprehensive in their mandate, also at the risk of jeopardizing the personal ambitions of its judges and the budget that the institution receives from member states.
Since the legitimacy of the ICC and of the other legal instruments of global criminal justice is not provided by inter-governmental fora only, but also by global civil society, the latter could play a crucial role in shaping the activities of the institutions. [18]
The second thing is to realize that the government-instituted international criminal tribunals do not have the monopoly on judicial method. The judicial method of investigation, evidence and controversy between accusation and defence can be applied by Courts that do not have an inter-governmental mandate. Back in the 1960s, Bertrand Russell, Jean-Paul Sartre and Lelio Basso established an Opinion Tribunal on the War Crimes in Vietnam.[19] Of course, this tribunal had no enforcing power, but it managed to assemble significant evidence and to alert the public opinion on crimes that were often overlooked by most of the media and even more by the American Courts designed to investigate on war crimes. Since then, the Basso Foundation in Rome has continued this tradition with a Permanent Peoples’ Tribunal.[20]
More of these ventures are needed in order to use the judicial discourse to held powerful players accountable. Opinion Tribunals could be particularly effective when they identify actions and legal procedures potentially available to official institutions, if they were only willing to dare more. For example, if Opinion Tribunals were to generate enough evidence to show that serious war crimes have been committed, and if they show that these crimes are under the jurisdiction of the existing International Tribunals, could they continue to ignore the cases?
Third, the judicial machinery should be extended involving larger parts of the population. The problem is not just to punish symbolic and egregious criminals, but also to understand why some major crimes could have happened with the silence or even the collaboration of much larger groups of peoples. Punishment of a handful of criminals is certainly helpful, but even more it will be helpful to uncover the machinery that has allowed the crimes to occur. In South Africa, Nelson Mandela was brave enough to launch the Truth and Reconciliation Commission, which managed to involve a much larger number of victims and perpetrators. This avoided the impression that criminal justice is just concentrating on a few symbolic cases to prevent uncovering the responsibility of a much larger group of the population. The intervention of international criminal tribunals is often seen as a top-down procedure which does not find any sympathy in the areas affected by crimes. It was disturbing to see rallies supporting Karadzic and Mladic at the time of their arrest. This indicates the need to associate top-down procedures also with bottom-up reconciliation.
A cosmopolitan criminal justice is just starting to develop. What international and hybrid Courts and Tribunals are currently doing indicate that there are now judicial instruments that should enforce what Immanuel Kant already envisaged more than two centuries ago: “the peoples of the earth have thus entered in varying degrees into a universal community, and it has developed to the point where a violation of rights in one part of the world is felt everywhere”.[21] But there is much room to make sure that this ideal is not transformed into another instrument of the strong against the weak.
