Whatever became of– ?

… the International Criminal Court???
Back on July 1, 2002, the historic Rome Treaty came into force, and the ICC– dream of so many in the international human rights movement– was finally up and running.
But to where, exactly?
I just went over to the ICC’s website to update myself on what this much-lauded institution has been doing for the past two years… And the answer is–
Not very much of anything at all.
In the past year, the ICC seems to have issued a total of eight press releases! (None since April 20.)
Though it’s a new-age international institution and has been in existence for more than two years already, its web-page on its own budgetary affairs gives us zero details on what it’s budget is, how it acquired its funding, or what it spent it on.
Yes, but what of the content of those eight press releases, you ask? Isn’t ICC prescutor Luis Moreno Campo busy using the organization’s budget to launch investigations into atrocities all over the world??
Back in July 2003, Moreno issued a breathless press release to the waiting media, explaining that … he could not start an investigation into anything to do with the US’s launch of a gratuitous war against Iraq because, although the Rome Treaty allows for ICC prosecutions in cases of “Crimes of Aggression” the nature of those crimes has not yet been decided. Oh, also, neither the US nor Iraqi is a State Party to the Treaty.
Ah, but he did promise he’d be “closely following” the tragic situation in Ituri, in eastern Congo. Indeed, he promised that, “If necessary, the Office of the Prosecutor will seek authorisation from a Pre-Trial Chamber to start an investigation.” (An “investigation” is a much more formal thing than “closely following”.)
Since then– nothing more about Ituri.
Then, in late February 2004, we had this from Moreno, promising that he would investigate,

    the crimes committed on Saturday 21 February 2004 in Barlonya camp, North Eastern Uganda. The latest reports estimate the number of deaths at over 200… These crimes could fall under the jurisdiction of the ICC…

Since when– again, no further news on Barlonya. And nothing, nothing at all on any of the other regions of the world–Darfur, Nepal, etc etc– where major atrocities continue to be committed.
Look, I don’t want to criticize Mr. Moreno personally. But I do think that for a huge number of reasons the ICC has turned out to be an extremely disappointing body.
Perhaps this was an inevitable outcome, given the hostility shown towards it by not only the US but also Russia, China, and India, among the world’s great powers?
No, I think the problem’s a bit deeper than that…


For a while now, I have been thinking–and cautiously arguing in public–that the attempt to create a huge, perhaps technically admirable jurisprudential body at the world level for these kinds of crimes is to put the cart before the horse in a number of key respects:

    Firstly, shouldn’t peacemaking and the durable resolution of inter-group conflicts take precedence over the prosecution of — always–only a small number of individuals accused of having perpetrated the atrocities in question?

The perpetration of atrocities on the scale of a Rwanda, a Bosnia, or a Congo doesn’t take place in a political vacuum…. It’s not the case that the people of those lands are somehow biologically programed to be sociopaths and therefore the rest of us nice, well-behaved people in the world need to be protected from them… No, those atrocities (like the ones committed by US soldiers in Abu Ghraib) take place in situations where the prevalence of warfare and the breakdown of social institutions have made the killing and wounding of other humans into something that it’s “okay” to do.
So let’s resolve the conflicts first, huh? Then, after that, everyone can talk about embedding (or re-embedding) into the affected societies some decent social norms of how people should treat each other.

    Secondly, if we really do want to build towards an international judicial system–which may or may not be a good idea– let’s make sure it’s one that is fair as between the different peoples of the world, transparent, and visibly accountable in some way to the citizens of the world…

Unlike the ICC, for example, which applies a “rich world’s law” that goes after petty dictators in poor African countries but leaves the George Bushes of the world quite free to launch wars of their choice against anyone they want to, and leaves the US Congress and the EU member-states free to provide massive subsidies to their respective farmers that almost directly cause thousands of deaths by starvation and impoverishment every day in farming communities in other parts of the world.
So maybe something like the ICC might be a good idea. One day. When everyone in the world is a bit wiser, a lot more compassionate, and certainly, more fair-minded in not seeking “special treatment” for their own compatriots… When everyone’s really ready for the kind of global legal system that applies one single law to all of God’s children, whether they’re rich or poor; whether they have nuclear weapons and therefore a veto on the Security Council, or not– or, preferably, when nobody has either of those perks…
At that point, an ICC might be quite a good idea.
But for now?
… And, moving right along here with my indictment of the work of the international criminal tribunals of the 1990s, here are some interesting factoids that I calculated about the International Criminal Tribunal for Rwanda (now almost ten years old, and still going strong…)

    Amount the ICTR had spent per case processed through at least the stage of completing the first hearing (23 cases total), as of September 2004: $43 million.
    Amount the ICTR had spent by then, per head of Rwanda

13 thoughts on “Whatever became of– ?”

  1. Interesting and thoughtful as always, Helena.
    I think one of the problems with the ICC is that there’s a well-developed body of international law with respect to war crimes and crimes against humanity, but that there’s little if any rule of law. In areas where there is a substantial commitment to abide by international law and a meaningful enforcement mechanism, courts can function as such – for instance, the various international commercial courts and the EU judicial bodies are real forums for dispute resolution. Where there is no enforcement mechanism, though – or, even worse, where the law can be enforced against some countries but not others – then laws and courts become nothing more than political tools.
    In some cases, this may be a sacrifice worth making. The ICJ, for example, has no meaningful way to enforce its judgments, so rulings in contentious cases (let alone advisory rulings) are often disobeyed. The rulings that have been obeyed, however, have led to peaceful resolutions of disputes over frontiers, mineral rights and the like, and on at least one occasion, an ICJ ruling has ended a war. Indeed, even where an ICJ ruling is ultimately not followed, the time during which the case is pending sometimes acts as a cooling-off period during which the parties can explore other solutions. My favorite example is the Bakassi Peninsula dispute, which almost led to war between Nigeria and Cameroon on two occasions; the ICJ’s ruling has not been fully obeyed, but the parties have used the time to establish a joint commission and affirm their commitment to a peaceful solution. On balance, I think the ICJ has been a net positive notwithstanding its lack of enforcement power.
    A criminal court, though, is another story. Its role is not to mediate but to pass judgment and condemn, and under these circumstances, even-handed enforcement is essential rather than merely nice. I was originally skeptical about the ICC out of fear that it would be used as a political tool against the United States; it’s somewhat ironic that the court is now being used as a way to say that the UN is “doing something” about Third World conflicts. Either way, it isn’t filling its proper role.
    At the same time, punishment of war crimes and crimes against humanity is important. Your point about conciliation being as necessary as justice (if not more so) is well taken, but (1) there’s no reason the two can’t occur in tandem, and (2) there should be some mechanism for punishing the most heinous crimes. If war criminals go scot-free while ordinary criminals are punished, that in itself shows a lack of even-handedness. It doesn’t quite recall Stalin’s “a million deaths is a statistic” remark, but it does cast a million deaths as an act of state. I suppose that, for the time being, we’ll have to rely on the good faith of national justice systems and legislatures to decide when to punish and when to reconcile, but it still seems that something is missing.

  3. Interesting post, and I think most of your criticism of the ICC is well-taken. But IMO the fault also lies in the political cowardice of court. There have been several attempts to indict Blair for the Iraq war – surely an open and shut case of war crimes committed in front of the world’s eyes – and the unwillingness of the ICC to act on these has profoundly disillusioned me and probably many others initial supporters of the concept.
    Maybe it could still work if some people of backbone, courage and conviction were in the key posts, though even then they would probably be defeated, sooner or later, by political realities. What I cannot forgive is that they apparently do not even TRY.

  6. Notes on an experiment

    Helena Cobban has written a typically thoughtful essay about the virtual disappearance of the International Criminal Court. The ICC opened in 2002 to great fanfare from the supporters of international rule of law, and great skepticism from those who fe…

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