It would appear that July was a good month for the cause of international justice.
A glowering Thomas Lubanga Dyilo entered the pages of history in early July when he became the first person to be sentenced to prison by the International Criminal Court in The Hague. The Congolese warlord’s earlier conviction by the ICC was the first time in legal history that recruiting children into armed conflict was found to be a war crime. Score one for universal justice transcending borders and for expanding definitions of war crimes.
Meanwhile, the International Court of Justice — an institution separate from the ICC — on July 20 ordered that a 1984 treaty obligated Senegal to either prosecute former Chad dictator Hissène Habré for torture, murder, and other charges or extradite him to another country. Score one for the respect of state sovereignty, of treaty law and of universal human rights. And just Tuesday, the ICC for the first time ordered that the victims of Mr. Lubanga's crimes were entitled to reparations: monetary payments for their suffering.
So where are we on the long arc of the moral universe? Sixty-seven years after Nuremberg has it finally, conclusively, bent toward justice? Have the Auschwitzes, Khmer Rouges, Srebrenicas, and Rwandas finally been remanded to a dusty back shelf in a library?
The ICC’s first sentence coincided with its anniversary. The court opened its doors 10 years ago last month, empowered by treaty to prosecute genocide, crimes against humanity, war crimes, and eventually crimes of aggression. It was a great leap forward for the notion of universal justice: that some crimes are so heinous that their outrageousness transcends borders, language and culture. It’s the idea that some crimes are so unspeakably evil that their punishment must shatter the three-century-old bedrock of international relations: that only a nation has supreme authority over the crimes of its citizens.
This is what the nations that negotiated the Rome Treaty establishing the ICC agreed to. Today, 121 of the world’s 194 countries are signatories.
What is more noteworthy is what the court has not done and what it cannot do. And may never do.
The ICC as a creature
For all its noble intentions, the ICC is a political creature, the Rome Treaty is the product of intense negotiation and compromise. First and foremost, the court and its legacy are closely tied to the politics of the preeminent organization charged with safeguarding international peace and security: the United Nations Security Council.
Three of its five veto-wielding members — the United States, Russia, and China — have refused to join the court, yet the Rome Treaty gives the Security Council powerful authority over the court’s decisions whether to investigate a criminal suspect or not.
Scratch your head at this arrangement while considering a further complication: The United States, Russia, and China have been opposed to the court. In Russia and China's case, you could fault them for many things, but inconsistency is not one of them. Washington, however, after years of actively trying to undermine the court, has now made it a vital part of its policy tool box. David Scheffer, the former US ambassador who helped negotiate the court’s existence, says for all intents and purposes the US is a de facto member of the court. Exhibits A and B are the two instances in which the Security Council voted for the ICC to open an investigation, Sudan (with the US abstaining) and Libya (with US backing).
Bias by the court?
Then there are the politics of the court itself, which have been defined — or damaged, depending on your point of view — by its most visible employee: Luis Moreno-Ocampo, the swaggering Argentine lawyer who just ended his term as its first prosecutor.
Under Mr. Moreno-Ocampo, the court investigated seven “situations”— two from Security Council referrals, three based on referrals from member countries, and two based on his own discretion. All seven are situated in Africa, which has led to charges of bias by the court. In fact, the court may may simply need to justify its existence: prosecute the easier cases and prove itself to the nations that pay its bills.
But Moreno-Ocampo’s modus operandi hasn’t won him hordes of allies: his indictment of the Sudanese president, for example, has been criticized as half-baked, and has been ignored by countries the Sudanese president has traveled to. The prosecutor’s brash style didn’t win him friends either, and ICC judges reprimanded him repeatedly, all but telling him to stop letting his mouth run wild.
The built-in checks means that the ICC is beholden to its member nations and subject to Security Council meddling, while at the same time having to prove it can administer independent, impartial justice. As University of Chicago law professor Eric Posner wrote in recent op-ed: “the ICC must constantly convince governments to support it while at the same time avoiding the impression that it is a tool of governments. For all the talk of the ‘global rule of law,’ this is an intensely political process and essentially contradictory.”
The other cases
Then there are the cases that the court is not investigating. If you’re a protectorate or client state of a Security Council member, chances are that the ICC prosecutor isn’t going to be jumping out of his or her chair to open a full-blown criminal investigation. Why Libya and not Bashar al-Assad and Syria’s bloody maelstrom? Ask Moscow. Why Cote d’Ivoire but not Mahinda Rajapaksa and the brutal ending to Sri Lanka’s civil war? Ask Beijing. Why Kenya but not the violent suppression of protests in Yemen or Bahrain by those governments? Ask Washington.
To be fair, it’s worth noting that central to the ICC’s mandate is a concept called "complementarity." That’s the idea that the ICC is the court of last resort, that nations should get first dibs on prosecuting their own war crime suspects. If they don’t, or can’t, the suspects should be extradited to a country that can.
That’s why the ICJ’s ruling on Hissène Habré is heartening. It’s an open question whether Senegal will be able to run a credible trial, but they’ve pledged they will. If it does happen, it would be the first time that a dictator accused of crimes in one country is tried in another country’s courts. The ICJ ruling also reinforces a landmark human rights treaty — the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — and the idea that treaties, once signed, can’t be ignored for political expediency.
But political expediency remains the order of the day, particularly for the Security Council’s Obstinate Three, and most notably, for the United States. When it works for Washington, international justice dispensed impartially is a cause to be embraced. When it doesn’t fit with the goals of American exceptionalism, it should be ignored, if not undermined. Political expediency yields selective justice.
Charles Taylor and Ratko Mladic
There’s cause for optimism no doubt, particularly if you look at other cases from the past year: the conviction of former Liberian leader Charles Taylor by a special “internationalized” court for Sierra Leone; the ongoing trial of Ratko Mladic, the alleged mastermind of the Srebrenica massacre, at the International Criminal Tribunal for the former Yugoslavia.
But whether the lessons of these trials will be absorbed by would-be murderous dictators — that impunity for crimes of atrocities is a notion from the past— will depend on the expectation that all nations large and small, rich and poor, should be equal under the law and that credible justice is as important as justice itself.
The arc of the moral universe does not bend toward selective justice.