Three weeks ago Radovan Karadzic, the architect of the Srebrenica massacre, was sentenced to 40 years imprisonment by the International Criminal Tribunal for Yugoslavia (ICTY). This is, of course, a victory for international justice however the fallout of the decision exposed a number of things about the mechanisms for enforcing international law. As well as illustrating the complicated nature of this system, the successful prosecution illustrated how no ‘Western’ leader will be prosecuted for crimes against humanity or any other violations of international law. If international law is to exist then it must be universal, and there must be a huge simplification of the international justice system.
When I talk about the confusion in the international justice system, it must be stressed that there are many competing authorities to deal with such crimes. After the end of WWII the Nuremberg Trials were established in order to prosecute the crimes of senior Nazis. The proceedings were military tribunals with judges from each of the victorious Allied powers. Although these tribunals were successful in prosecuting Nazi officials such as Herman Göring, Rudolf Hess, and Albert Speer, the international community recognised that a system of civilian court would be necessary to prosecute people in future. As a consequence of this realisation, the International Court of Justice (ICJ) was established in 1945 as the primary judicial branch of the recently established United Nations.
The Nuremberg Tribunal was an example of an ad hoc court, and the establishment of the ICJ was supposed to create a permanent body to oversee international justice. However, as those of you decently familiar with Latin will be able to identify, the ICTY was also an ad hoc court, with its scope limited to only dealing with the alleged crimes against humanity that took place during the Yugoslav Wars. This is what I mean by competing authorities. The ICJ acts as the judicial branch of the United Nations however the ICTY was established by the United Nations Security Council, another branch of the same parent organisation.
The ICJ does not enjoy a full separation of powers from the rest of the UN like the Supreme Court does with the rest of the US federal government. Because of this uncomfortable fact there will be no prosecution of Western leaders by the ICJ for one reason: veto power. The way that the ICJ is established means that permanent members of the UN Security Council (Russia, China, France, Britain, and the US) can veto the enforcement of cases by the court, even if the court has the legal authority to pursue such cases.
It is also worth pointing out that only nation-states can bring cases against other nation-states which is unsettling given the power of non-governmental organisations and private corporations. For example because of this conception of international justice, a private company that sells the equipment needed for a state to commit genocide cannot be prosecuted for doing so, even in circumstances where the private company may know that that is how their products will be used.
The other point about the ICJ that I’d like to mention is that its decisions are essentially non-binding. Because of the United Nations Charter, all nation-states are seen as equally sovereign and legitimate. As a result the ICJ has no basis to enforce its decisions as the accused nation could simply reject the ICJ’s decision without any reprisals. The immediate response to this last point could be that such a rogue state would be on the receiving end of some massive sanctions, but this has its limitations. If Japan, for example, is convicted of crimes against humanity will Europe, Australia, and the United States cease trading with Japan and enforce strong sanctions? Of course they won’t, and this double standard is why these organisations are not about bringing order to the anarchic world of international politics.
All these institutions do is preserve the economic and political power of historically power nations. To take a more extreme example, let’s say that the United States decided to drop its entire nuclear arsenal on every country in Africa. By everybody’s personal standard of justice, the US would be guilty of crimes against humanity, however because the ICJ is not separate from the UN Security Council, the US could veto the case being heard. In this hypothetical situation the United States could kill over 1.1 billion people on live television, but the ICJ wouldn’t be able to prosecute them because of the US’ position as a permanent member of the UNSC. The obvious solution to this situation would be to create an apolitical institution that is affiliated with the United Nations but cannot be influenced by the Security Council or the General Assembly. In 1998 such an organisation was established, the International Criminal Court.
The International Criminal Court (ICC) is a tribunal based in the The Hague that has the jurisdiction to prosecute individuals for international crimes like genocide, crimes against humanity, and war crimes. The ICC was designed to work in conjunction with national legal systems rather than override top courts in any given country. Unlike the ICJ, the ICC is separate from the UN Security Council and therefore larger nations cannot veto the court from taking up cases. It would therefore seem likely that in the long term the ICC would replace the ICJ or these two institutions would be combined to create an institution that was under the umbrella of the United Nations but was separate from the political activities of the UN General Assembly and the UN Security Council.
However, despite this optimistic thinking, there are also criticisms of the ICC. The most notorious criticisms are from developing countries who assert that the ICC essentially protects leaders of Western nations from prosecution, and many nations believe that the ICC focusses too heavily on African criminals. These two criticisms cannot be dismissed. Although all the people indicted by the ICC should be put on trial an overwhelming majority of these people are African, and I can think of a huge number of non-Africans who should be indicted.
In addition to this list of individuals, the number of situations investigated by the court are also skewed in a certain direction. The ICC has received complaints of potential crimes in 139 different countries. Only 10 situations have been analysed and 9 of these have been in Africa. It’s worth pointing out that the Office of the Prosecutor has begun conducting preliminary examinations in 7 other countries, of which only 2 are relating to Africa, but that would still put the total at 11 out of 17. Again I’m not saying that people involved in the Darfur conflict or African presidents that abuse their power shouldn’t be brought to trial, but the fact that the focus is disproportionately aimed at Africa is something to be critical of.
As I said there are many individuals that could be indicted by the ICC, but I can almost guarantee that these people will not be put on trial. For example, all of the leaders who endorsed the 2003 Iraq War could be brought up on violations of international law, as it was not supported by the UN, and crimes against humanity, because between 100,000 and 1,000,000 people, mostly civilians, were killed. Will any of these leaders be summoned to The Hague? No. This is a clear demonstration of how the ICC will only focus on violations of international law condemned by the West and will ignore those perpetrated by the West.
To conclude, the prosecution of Radovan Karadzic will not be a catalyst for the prosecution of other war criminals. The institutions that currently exist will continue to focus on individuals in developing countries and Western leaders will continue to be able to flout international law without consequences. At some point we are going to have to decide whether or not the West should continue pretending to be morally superior than the rest of the world, but in the mean time international justice will continually be focussed at countries that aren’t in or allied with the West.
My suggestion would be to create a UN justice agency that is completely separate from the UNGA and the UNSC like how the US Supreme Court is separate from Congress and the Executive Branch. Unfortunately this will take a long time as nations that have preserved their power in these institutions will probably be unlikely to voluntarily reduce their own power and potentially open themselves up to prosecutions for crimes that they committed whilst in power.