Legally Ranting

The Politics of International Criminal Law

Posted in International Criminal Law, International Law by legalrants on January 14, 2011

The notion of international criminal tribunals or courts conjures up busy, efficient courtrooms, paneled by oakwood and red cushions. At a superficial level these courtrooms, flanked by rows of lawyers facing a panel of judges of various nationalities, appear to be dishing out cold, brutal justice to the many war criminals who have gained the unpopularity of the world media. Or is that the case?

I’ve never stepped into a courtroom adjucating a trial of an international war criminal; for that matter, I’ve never even stepped into a courtroom trial before. Perhaps, for the better. For the past year or so, I’ve deluded myself that these trials were necessary to dish out justice to heinous atrocities attributed to evil men (or women). Perhaps, these war criminals really were as evil as the world media made them out to be. But are they really the only ones who are truly guilty?

As any scholar of international law would inform, politics is undivorceable from the practice of international law. Afterall, what is international law but simply inter-state relationships (at a very basic level). Find me a state that does not have internal political struggles, I’ll show you the Garden of Eden. At the international level, these political struggles are simply juxtaposed onto the world arena.

I barely need to mention the trial of General Yamashita after WWII, in the American Military Tribunal of Manila, to prove my point. For that matter, the legality of that trial is still questionable today (at least to me). 

Why the world stood and watch repeatedly through genocidal regimes and not act, truly baffles me. From the Holocaust to Pol Pot’s Cambodia to Rwanda, the world of international criminal law owes a huge debt to tens of millions of victims to arrive at what we have today. This is not forgetting Darfur NOW!

Ok, so I’ve rambled alot — what do we actually have today? In the 1990s, we have the International Criminal Tribunal of the Former Yugoslavia (ICTY) and the International Criminal Tribunal of Rwanda (ICTR).  From 2000 to 2010, we have the Special Court of Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the East Timor Tribunal. The most notable court we have today is the International Criminal Court (ICC).

So why am I so dissatisfied? In the early days of the Rome Statute of the ICC, the world was anticipating a new age of accountability — a permanent court that could adjucate criminal justice for international crimes. The world’s biggest only superpower, the USA, was firmly instrumental in orchestrating the birth of the Rome Statute — but it went downhill thereafter.

The ICC came into force in July 2002, after the 60th nation had ratified the Rome Statute. The USA, unhappy that the ICC would have jurisdiction over citizens belonging to a non-state party (amongst other objections), refused to ratify it. Without the muscle of the USA, the ICC seemed doomed to obscurity. Fortunately, there have been 111 states so far that has ratified the treaty and the ICC has begun some work in certain African countries. Not only did the USA strongly object to certain articles of the Rome Statute, the US Congress declared that the President had powers to order force to ‘rescue’ any US soldier who is being held for ICC investigations. It also forced over 100 states to sign a treaty promising not to hand over any US soldier to the ICC if required to.

Because the ICC has intricate links to the UN Security Council (of which the USA is a permanent member with enormous veto powers — basically any resolution by the Council cannot be passed if any of the 5 permanent members veto it), one would think  that the US would veto a Security Council resolution to refer the Darfur situation to the ICC — surprisingly, the US abstained from the vote. An act of compromise, perhaps?

This is the murky world of politics mixed into the arena of international criminal law. While I’m not privy to what goes on in high-level discussions, I can just imagine the US representative in discussion with the other Security Council members to determine whether the US vote was necessary to obtain the 9 out of 15 majority to pass the resolution.

In Cambodia, the ECCC is likely to close down after prosecution of defendant 002. This appears to be the wishes of the Cambodian prosecutors and the government. It is no secret that many of the ex-Khmer Rouge members are now holding governmental positions in the Cambodian government — it is more likely that not that pressure has been put onto the prosecutors to stop any further investigations.

In Rwanda, relationships between the ICTR and the Rwandan government soured after the ICTR begun investigations of RPF rebels (the Tutsi rebel force that now forms the government). Only after the ICTR relented, that relationships normalised.

In the ICTY, the Prosecutor initated investigations into NATO bombings in Kosovo, which killed scores of civilians and desecrated the Chinese embassy, only to be warned of withdrawn support from NATO members.

The extremely applaudable move by Belgium to enact universal jurisdiction into their domestic laws and thereafter, beginning investigations into George Bush and Donald Rumsfeld, met with ludicrosity by the US. It threatened Belgium’s status as the NATO headquarters. Belgium had no choice but to amend its laws accordingly.

This is not an exhaustive list of the political pressures that have been placed in the realm of international criminal law — I’m sure many more exist and probably occuring on a daily basis. While I’m no idealistic superhero hoping to save the world by holding war criminals to accountability, I’m certainly deflated in my desire to practice international criminal law in future.

Whenever I get disillusioned with ICL, I always remember a scene from the film “Hotel Rwanda” where the hotel manager, when threatened with death, categorically told the Rwandan army general that he (the hotel manager, that is) was the only person who could testify for the general in an international criminal court — “You wear five stars, who do you think they are coming for?”….after a brief deliberation, the general let him go.

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One Response

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  1. Fatima Fouda said, on May 2, 2013 at 2:25 am

    I wholeheartedly agree with everything that you’ve mentioned in your post. I’m currently the president of the ICC council at my university’s MUN, and that’s exactly my theme. I’m going to teach the delegates that structured international institutions do not necessarily have their best interest in mind, and how the extreme polticization of such supposedly law enforcing courts renders them ineffecient.


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