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World: International Justice -- Can Justice Ever Work? (Part 1)

In the aftermath of a decade of brutal civil wars, international bodies and influential NGOs are striving to create mechanisms in which justice and reconciliation can be served. This week, RFE/RL will issue a package of five stories dealing with these issues.

Today, in the series' first two stories, correspondent Daisy Sindelar examines whether a system of international justice can ever be truly fair or effective. She also looks at the effectiveness -- or lack thereof -- of existing war crimes tribunals.

Later this week, UN correspondent Robert McMahon will report about the example set by South Africa's Truth and Reconciliation Commission, which has been embraced by some as a forum that other African nations should copy. He will also look at the issues surrounding a permanent International Criminal Court and write about proposed war crimes courts in places such as Sierra Leone, East Timor, and Cambodia.


As the world shifts toward a future of universal accountability for such international crimes as genocide and torture, debate is mounting over whether a system of international justice can ever be truly fair or effective. Some observers say UN-sponsored tribunals like those for Rwanda and the former Yugoslavia do little more than serve Western political agendas. But others say the alternatives -- ranging from the wide-open mandate of universal jurisprudence to the compromise solution of an International Criminal Court -- are problematic, as well. RFE/RL correspondent Daisy Sindelar reports on the controversy surrounding the future of international justice.

Prague, 4 September 2001 (RFE/RL) -- A consumer in the United States thinks nothing of buying a German car manufactured with Brazilian parts and assembled in Mexico. Such a globalized product, it can be argued, makes optimal use of available resources and delivers quality goods to shoppers all over the world.

But does the same hold true for a "globalized" judicial system, in which a French appellate judge, sitting in the Netherlands, hears arguments from a Dutch defense lawyer and Swiss-led prosecutors before upholding the conviction of a Rwandan defendant for crimes committed some 6,000 kilometers away?

Even prison stays are not local affairs. In the case of the International Criminal Tribunal for Rwanda (ICTR) those convicted of bearing responsibility for the 1994 genocide will serve their life sentences in one of three international prisons being specially built in Benin, Mali, and Swaziland -- not in Rwanda.

As the movement toward a system of international jurisprudence gains steam, debate continues over whether standards of global accountability are realistic or fair. In the case of the ad-hoc criminal tribunals for Rwanda and the former Yugoslavia (ICTY) -- both established by the UN Security Council and the most active examples of international justice at work -- critics object to what they see as small and weak countries being subjected to Western political bias.

One such critic is Shlomo Avineri, a professor of political science at the Hebrew University of Jerusalem and a former director-general of Israel's Ministry of Foreign Affairs. He says international justice is guided more by realpolitik and double standards than by truly universal criteria:

"[International justice] should apply to anyone and everyone who is suspected of war crimes. And we all know that President [Vladimir] Putin of Russia will never be brought before an international court of justice because of the realities of power. And this is admitted even by people who realize that what's done in Chechnya is as bad, probably perhaps even worse, than what [Slobodan] Milosevic and the Serbs have done in Kosovo."

Avineri adds that third-country tribunals like the ICTY and ICTR -- which are theoretically created only in instances where a country's own judicial system cannot meet adequate procedural standards -- deprive local communities of the sense of immediacy and resolution that domestic courts deliver.

Every court, Avineri says, should bear responsibility for the impact its ruling will have on the society where the crimes took place. In this way, he says, international tribunals are "totally irresponsible."

"In the case of an International Criminal Court, or the Yugoslavia tribunal sitting in The Hague, the prosecutors and the justices have no relationship to the society in which the crimes were perpetrated and don't take into account the impact it will have on that society."

Moreover, Avineri says, the tribunals' ties to the United Nations -- judges in the ICTY and ICTR trial and appeals chambers are elected by the General Assembly from a list submitted by the Security Council -- make it impossible for them to operate in a bias-free manner:

"And we know that the UN is a basically flawed organization -- where on the one hand the smallest country has the same power of voting as the strongest country, but on the other hand, five permanent members of the Security Council have veto powers. So between this phony universality and real veto, the UN is a very ineffective and basically hypocritical and impotent organization."

Some observers point to developments in international justice that they say are even more alarming -- namely, the growing support for universal jurisdiction, which holds that it is the duty of states to bring to justice those responsible for international crimes when they are not prosecuted in their own countries.

Unlike the ICTR and ICTY, which operate with a fixed and limited mandate, universal jurisdiction gives states sweeping powers to instigate judicial procedures when and where they see fit. Countries that are party to agreements like the 1949 Geneva Conventions and the 1988 UN Torture Convention are, in principle, obliged to either prosecute or extradite to a third country those suspected of international crimes such as genocide or torture who come within their borders.

Universal jurisprudence is rarely used, but it is not unheard of. A notable example is Belgium, which recently began a criminal investigation against Israeli Prime Minister Ariel Sharon for a 1982 massacre of Palestinians in Lebanese refugee camps. The possibility that Belgium could eventually indict the sitting head of an outside government -- for alleged crimes committed outside Belgium -- has been strongly criticized in many legal circles, with even the Belgian parliament moving to rein in the scope of its national law.

Ramesh Thakur is the vice rector of the Peace and Governance program at United Nations University in Tokyo. He says that, to date, universal jurisprudence has betrayed a strong sense of Western bias. Third-country proceedings like Belgium's investigation of Sharon, he says, are little more than a form of "judicial colonialism":

"That is what I think the Europeans who tend to assume that their processes and their systems of justice are automatically superior to that of everyone else, which was a similar belief underlying the historical period of colonialism, that their civilization and their values were preferable and so much superior that they should and could be imposed on the rest of the world, and hence colonization. And that's why I use the phrase judicial colonialism."

One particularly high-profile critic of such third-party justice is former U.S. Secretary of State Henry Kissinger. In a recent article published in the U.S. journal "Foreign Affairs" (see July/August issue, "The Pitfalls of Universal Jurisdiction"), Kissinger cites the case of Chile's General Augusto Pinochet as setting a potentially dangerous precedent in international law.

Pinochet led the military overthrow of Chile's elected government in 1973 and ruled the country for the next 17 years. He is widely held responsible for the torture and death of thousands of Chileans in the years following the coup. Never tried at home, Pinochet was detained in Britain in 1998 and held for 16 months at the request of a Spanish judge seeking to try the former military leader for crimes committed in Chile against Spaniards. The move was upheld by both Britain's Law Lords and Spain's highest criminal court. Although Pinochet was eventually released and sent home for health reasons, his landmark detention gave universal jurisprudence new importance on the world stage.

But Kissinger calls the Pinochet case a potential step toward what he calls "judicial tyranny." In his essay, Kissinger writes that letting judges or prosecutors determine which individuals they will seek to prosecute could lead to selective and arbitrary justice. More importantly, the search for justice should not automatically override other considerations, such as "the consolidation of law, domestic peace, and representative government."

Under a system of universal jurisdiction, the system of checks and balances -- crucial to every constitutional democratic political structure -- may not be given sufficient weight, while the magistrate could substitute his own judgement for the reconciliation procedures of even incontestably democratic societies.

But even those with concerns about international jurisprudence say that the eventual move toward a broad system of international justice is inevitable. Thakur -- who calls the shift from national impunity to international accountability better suited to "modern sensibilities" -- says the proposed International Criminal Court is the best possible option for a truly universal system of justice:

"[We want a situation where] the rule of law is institutionalized, and embedded, and applies to everyone -- to the powerful and the weak, to the rulers and the citizens. The International Criminal Court comes close to that ideal."

The ICC, which was established by the 1998 Rome Treaty, would be a permanent international court for trying individuals accused of genocide, war crimes, and crimes against humanity. Unlike the international war crimes tribunals, which employ specially appointed legal officials to rule on specific regional crimes, the ICC would hear cases on humanitarian crimes committed in any of the countries that have ratified the Rome Treaty. In this way, Thakur says, it would avoid the influence of power politics to which ad-hoc tribunals like the ICTY and ICTR are more susceptible.

It may be years, however, before the ICC becomes a reality. Sixty countries must ratify the Rome Treaty before the court can be formally established. To date, just over half that number have done so, and the United States -- whose absence could seriously impair the court's effectiveness, both in terms of budget and influence -- has indicated it will not do so until substantial changes are made to the treaty limiting the court's jurisdiction over U.S. citizens.

Bruce Broomhall is the director of the International Justice Program for the U.S.-based Lawyers Committee for Human Rights. He is an active supporter of the ICC, which he says is the product of a truly multicultural effort by legal experts around the world to create an impartial and rigorous forum for prosecuting whom he calls the "Saddam Husseins, Pol Pots, and Idi Amins of the future":

"The Rome Statute is like an encyclopedia of international fair-trial standards. It was negotiated by hundreds of legal experts with input from hundreds of advocates and human rights activists from around the world, from legal systems in sub-Saharan Africa, Latin America, Europe, North America, Asia -- you name it."

Broomhall says there are two immediate advantages to creating a permanent international court. First, he says that having a permanent institution in place will improve the efficiency of targeting and prosecuting those responsible of international humanitarian crimes. While ad-hoc tribunals like the ICTY are effective, they are both costly and slow-moving. An existing court, he says, would allow crimes to be prosecuted as they arise.

The second advantage, Broomhall says, is that the ICC will not circumvent local courts, which he calls the "ideal forum" for dispensing justice:

"The advance represented by the ICC over the Yugoslav war crimes tribunal is precisely that the ICC is going to defer to national courts, unless they show that they are unable to do the job fairly. So the assumption is going to be local justice is the best justice."

In instances where local courts cannot provide international trial standards, he adds, the ICC will be able to act as a kind of legal surrogate:

"If it can't be fair, if local officials are complicit in the crimes, if the judges are intimidated, then the ICC can step in, and that's where we need international justice. You can't just have local justice. That might be the best forum, but we all know local judges [and] local prosecutors can come under terrible pressure from oppressive governments. There needs to be some kind of safety valve to allow justice to be done in other forums."

But, Broomhall admits, there are limits to what the ICC can achieve. In the end, the Rome Treaty is only as good as the countries that ratify it. Even once the ICC is up and working, its reach will not extend beyond those countries supporting it.

This could mean, to take the example of Avineri of Hebrew University, that Russian President Putin -- whose country signed the Rome Treaty but has yet to ratify it -- may never be subject to ICC jurisdiction for his actions in Chechnya. The result, according to Avineri, could be a situation where "the rhetoric is wonderful but the reality stinks."