Addressing the High Costs of the Political Divide in International Criminal Justice
D
o the high costs of international criminal justice merit the results? In which situations should universal jurisdiction apply? How can we bridge the divide between the American and European positions on the International Criminal Court (ICC)? Scholars, academics, diplomats, and international lawyers debated many such questions at a recent symposium, “Perspectives on International Criminal Justice” at The Fletcher School. The LL.M. Program in International Law hosted the event in conjunction with the University of Paris II (Panthéon-Assas), Centre sur L’Amérique et les Relations Transatlantiques, the American Society of International Law, and the French Consulate of Boston.
These organizations sought to create an environment where concerned individuals could discuss and debate issues facing international criminal justice. One interesting debate focused on the costs versus the benefits of ad hoc international criminal tribunals. Some scholars argue that the costs are certainly worthwhile if such justice mechanisms can contribute to healing after mass atrocities, and to deterrence of future crimes. Others take the opposite perspective, citing destabilizing effects in an already turbulent society and astounding costs. For example, the International Criminal Tribunal for Rwanda is estimated to have cost over $2 billion in total. Almost 15 years after the atrocities, many wonder if these funds would have been better spent on economic development in Rwanda.
The issue arousing most interest, as the US transitions to a new administration, is the position of the US on the ICC. While the Clinton administration signed the Rome Statute that instituted the ICC, the Bush administration effectively “unsigned” it by declaring its intent to never ratify the Statute. The EU in the meantime has led the way in funding the ICC and making it practicable. Philippe Weckel, professor of public international law at the University of Nice Sophia/Antipolis, highlighted this divide by describing the Sudanese case. In 2005, the US led efforts to fight impunity in Darfur. When a report recommended referral to the ICC, however, the US argued for a separate international tribunal much the Rwandan one described above. The UN Secretary General and the EU unanimously supported employing the ICC for prosecutions due to the expense of tribunals. Fortunately, the opposition to the ICC has been somewhat muted in the latter period of the Bush administration. John Bellinger, legal adviser to Secretary of State Rice, pointed out, the US has now professed complete support for ICC action in Sudan.
While the Obama administration may be even more supportive of the ICC, it is still unlikely to allow the ICC to prosecute American citizens. This results in a highly skewed system of global justice. As Serg Sur, professor of international law and international relations at the University of Paris II commented, it is impossible to separate international criminal justice from global governance. The ICC should be a piece of a more complex and robust global structure that does not yet exist. Sur cited how the UN Security Council can pass resolutions of universal scope which, without coordination and political will among states, are impossible to implement. In this way the ICC is still very much a fledgling institution, and its role and reach remain in question. But global leaders have the power to change that. The US now has a significant opportunity to not only reinforce the role of international criminal justice but its own role in global leadership as well.
International criminal justice is important in both principle and practice. Despite its many failings, the concept of international jurisdiction is a symbol of the effort for global justice. It is a recent concept that is still evolving. There are many critical questions to be asked: Does this justice appear fake and inefficient? Does it pave the way to corruption and hypocrisy? Do only the strong prosecute the weak? There is no doubt that the ICC needs more balanced prosecutions. It also needs the US to ratify the Rome Statute. The US role could be decisive in strengthening not only the ICC but the entire international justice system.
Cybèle Cochran F’09