it
en
fr
es
eo
Nl
POLITICS VS. JUSTICE AT THE HAGUE
Tweet
The International Criminal Court
TOKYO The policy of the United States toward the International Criminal Court appears to put politics over justice. But it has more merit than critics allow.
The U.S. position ensures that Americans continue to have full safeguards as criminal defendants. It is also consistent with balancing the competing requirements of peace, justice and reconciliation.
The International Criminal Court, or ICC, is not embedded in a broader system of democratic policy making. There is no political check on it. In claiming jurisdiction over nationals of countries that are not members of the court, it displaces the state as the conduit of democratic representation without providing an alternative. Why should it have authority over a constitutionally legitimated democracy like the United States?
Washington may have been tripped by its own moves in setting up the international criminal tribunals for Yugoslavia and Rwanda, which generated an unstoppable momentum for a permanent court with universal jurisdiction. Yet the Hague and Arusha tribunals began as substitutes for effective action to halt preventable atrocities; they were not indicators of toughening new standards of international judicial accountability. By keeping them under the jurisdiction of the United Nations Security Council, the United States made sure that it controlled their destiny.
For justice to be done, it is important that the rule-of-law standard is scrupulously observed in the collection and presentation of evidence, the right to cross-examination of witnesses, and all other procedures that we associate with a fair trial. In the U.S. legal culture in particular, human rights law gives primacy to protecting the rights of the arrested and the accused over the requirements of the prosecution for securing conviction.
Impelled by the momentum of international accountability, the balance has shifted: the conviction rates of the ad hoc international tribunals have been notably higher than for criminal prosecutions in the United States. Washington itself has been complicit in this transformation from protecting the rights of the accused to privileging the case for the prosecution.
Criminal law, however effective, cannot replace public or foreign policy. Determining the fate of defeated leaders is primarily a political question, not a judicial one. The legal clarity of judicial verdicts sits uncomfortably with the nuanced morality of confronting and overcoming, through a principled mix of justice and high politics, a troubled past.
A criminal trial is not always the best instrument for collective memory and communal healing. It can cause more damage and solidify the very social cleavages that led to genocide and ethnic cleansing.
The international criminal justice route takes away from concerned societies the right to decide whether, how and who to prosecute for alleged mass crimes, and what punishment to inflict on those found guilty. It also takes away from them the options of alternative modes of reconciliation. The purely juridical approach to transitional justice traps and suspends communities in the prism of past hatreds.
South Africa, Mozambique and Rwanda have all made deliberate policy choices to escape cycles of retributive violence. The record of "restorative" justice systems in bringing closure to legacies of systematic savagery is superior to that of institutions of international criminal justice; the latter's closure is more authoritative but also more partial and premature.
Just as any law constrains any power, so international law would constrain U.S. international power: There lies the rub. Washington bridles at the audacity of the "international community" in wanting to constrain U.S. international behavior. For Washington, the United Nations exists to expand national policy options, not limit them.
But the U.S. rejection of the ICC betrays a curious mixture of exceptionalism - the self-image of a good and great people divinely ordained to lead the world by example at home and activism abroad - and power politics: Why concede equal status to inferiors?
The ICC's attraction is its global scope, giving it the authority to investigate heinous international crimes wherever, whenever and by whoever they are committed. Only universal liability can arrest and reverse the drift to ad hoc universalism, from Nuremberg and Tokyo to the Yugoslavia and Rwanda tribunals.
* The writer, vice rector of the United Nations University in Tokyo, contributed this personal comment to the International Herald Tribune.
TOKYO The policy of the United States toward the International Criminal Court appears to put politics over justice. But it has more merit than critics allow.
The U.S. position ensures that Americans continue to have full safeguards as criminal defendants. It is also consistent with balancing the competing requirements of peace, justice and reconciliation.
The International Criminal Court, or ICC, is not embedded in a broader system of democratic policy making. There is no political check on it. In claiming jurisdiction over nationals of countries that are not members of the court, it displaces the state as the conduit of democratic representation without providing an alternative. Why should it have authority over a constitutionally legitimated democracy like the United States?
Washington may have been tripped by its own moves in setting up the international criminal tribunals for Yugoslavia and Rwanda, which generated an unstoppable momentum for a permanent court with universal jurisdiction. Yet the Hague and Arusha tribunals began as substitutes for effective action to halt preventable atrocities; they were not indicators of toughening new standards of international judicial accountability. By keeping them under the jurisdiction of the United Nations Security Council, the United States made sure that it controlled their destiny.
For justice to be done, it is important that the rule-of-law standard is scrupulously observed in the collection and presentation of evidence, the right to cross-examination of witnesses, and all other procedures that we associate with a fair trial. In the U.S. legal culture in particular, human rights law gives primacy to protecting the rights of the arrested and the accused over the requirements of the prosecution for securing conviction.
Impelled by the momentum of international accountability, the balance has shifted: the conviction rates of the ad hoc international tribunals have been notably higher than for criminal prosecutions in the United States. Washington itself has been complicit in this transformation from protecting the rights of the accused to privileging the case for the prosecution.
Criminal law, however effective, cannot replace public or foreign policy. Determining the fate of defeated leaders is primarily a political question, not a judicial one. The legal clarity of judicial verdicts sits uncomfortably with the nuanced morality of confronting and overcoming, through a principled mix of justice and high politics, a troubled past.
A criminal trial is not always the best instrument for collective memory and communal healing. It can cause more damage and solidify the very social cleavages that led to genocide and ethnic cleansing.
The international criminal justice route takes away from concerned societies the right to decide whether, how and who to prosecute for alleged mass crimes, and what punishment to inflict on those found guilty. It also takes away from them the options of alternative modes of reconciliation. The purely juridical approach to transitional justice traps and suspends communities in the prism of past hatreds.
South Africa, Mozambique and Rwanda have all made deliberate policy choices to escape cycles of retributive violence. The record of "restorative" justice systems in bringing closure to legacies of systematic savagery is superior to that of institutions of international criminal justice; the latter's closure is more authoritative but also more partial and premature.
Just as any law constrains any power, so international law would constrain U.S. international power: There lies the rub. Washington bridles at the audacity of the "international community" in wanting to constrain U.S. international behavior. For Washington, the United Nations exists to expand national policy options, not limit them.
But the U.S. rejection of the ICC betrays a curious mixture of exceptionalism - the self-image of a good and great people divinely ordained to lead the world by example at home and activism abroad - and power politics: Why concede equal status to inferiors?
The ICC's attraction is its global scope, giving it the authority to investigate heinous international crimes wherever, whenever and by whoever they are committed. Only universal liability can arrest and reverse the drift to ad hoc universalism, from Nuremberg and Tokyo to the Yugoslavia and Rwanda tribunals.
* The writer, vice rector of the United Nations University in Tokyo, contributed this personal comment to the International Herald Tribune.
