The Court And The World: Why International Justice Still Matters

Regardless of where one looks in the world, crises is abound. Syria, Yemen, the Central African Republic, Myanmar, South Sudan, and the Democratic Republic of Congo are hot spots, situations where conflict and human rights abuses are exacerbated by drought, famine, and disease. These crises occur on a massive scale, often dwarfing the ability to understand the multitudinous nuances or roots of the problem. Despite the complexities of these situations, however, there is a sense that there should be some accountability for these tragedies, some way of giving justice to the victims of atrocities.

Enter the international law regime. Prior to the atrocities of the Second World War, particularly the Holocaust, the international community had little way of demanding accountability for mass atrocities. The Geneva Convention established the limits and rules for the conduct of war and the treatment of civilians within the context of war, but there was nothing comparable to an international court or true accountability system. In the wake of the massive loss of civilian human life and the horrors that were revealed in the liberated concentration camps, the international community conceived of an attempt to dispense justice to the perpetrators of these so-called “crimes against humanity:” the Nuremberg and Tokyo Tribunals, which would try German and Japanese officers and leaders for the atrocities committed under their commands.

The German and Japanese tribunals arose in the wake of the mass atrocities of World War II, at a time when the international system was beginning to coalesce. The final years of the war, and the years shortly thereafter, saw the rise of the Bretton Woods international economic order (which included the International Monetary Fund and what would someday become the World Bank) and the creation of the United Nations, institutions that have shaped and continue to shape the modern international stage. The concept of an international justice regime came up in this time of international cooperation and shared sense of conviction that the horrors of the war could never be repeated. These tribunals in Nuremberg and Tokyo were created as an ideal; flawed though they were, they are the ultimate prototype of the modern international justice system.

International justice faltered during the Cold War; in the 1990s, however, the world was shocked from its complacency by two massive horrors: the war in Yugoslavia and the genocide in Rwanda. These conflicts, which caused the deaths of hundreds of thousands of civilians, gave rise to the creation of further individual tribunals, which in turn served as the link between the original tribunals at Nuremberg and Tokyo and the conception of a truly global justice mechanism: the International Criminal Court. Created by the 1998 Rome Statue, the Court was conceived of as an arbiter of international justice and deterrence, attempting to punish those responsible for atrocities such as genocide, crimes against humanity, and war crimes, even when those crimes are committed by those traditionally too powerful to be reined in by courts and laws. It envisioned a transfer of power from states to the Court, a voluntary partial surrender of sovereignty, that was previously unheard of and heralded a new period of justice and accountability.

Although powerful and ground-breaking in theory, in reality, the Rome Statute and the International Criminal Court were restricted from the beginning. Though the ICC was empowered by the international community of states, both the United State and China (two of the world’s most powerful countries, who also have veto power on the United Nations Security Council), voted against its creation, stunting the Court before it had a chance to truly grow. Despite these caveats, however, the ICC did become operational in 2002, working to prosecute perpetrators of crimes against humanity that national courts could or would not bring to justice.

Despite the ideals behind and strong need for an international justice and accountability structure, support for the Court has been limited since its creation, and criticisms of its success and even validity have been harsh. While the Court has consumed millions of dollars in operation fees, it has not produced high numbers of convictions; indeed, the Court has convicted only four individuals since its creation. The Court has also been accused of bias, given the heavy focus its investigations and prosecutions have had on the African continent. In 2017, in fact, Burundi became the first country to leave the ICC; the Philippines and Russia have threatened to do the same.

These failures are not entirely the Court’s fault: while empowered in theory, the Court has no police or military force of its own, and must rely on member states to both respect and carry out any warrants issued by the Court. The Court is also dependent upon states to fund it, and to cooperate in terms of witness and evidence protection. When states refuse to comply with the Court’s wishes, the Court has little power to impose its will.

Why, then, should the international human rights community care about the Court, which may have been born from a desire to increase justice and accountability but has seemingly few effects in the modern day? The answer is that the Court, though it is not empowered now, may still be the best approach to tackle the types of overwhelming atrocities that plague the world today. Syria, Yemen, South Sudan: how does the world handle these tragedies, protecting the victims while also punishing those who have created or exacerbated the violence?

The Court is flawed, certainly, but as a mechanism it is empowered to prosecute those powerful individuals whom national courts are not qualified or authoritative enough to punish. A Syrian court is not likely able to prosecute Bashir al-Assad for his role in the Syrian civil war; the ICC, on the other hand, was created to prosecute just such an individual and, if given the proper backing and support of its members, could successfully do so. No court in Saudi Arabia or Yemen would have the authority to pursue Saudi military officials for bombings in the Yemeni conflict; the ICC, however, could certainly attempt to do so, given the proper backing from its members.

The Court needs proper support to do the important job for which it was created, and one way of garnering that backing might be the involvement of the public. The world is seeing massive changes in politics and society, including in the involvement of young people in politics. While many of the issues that these new youth movements focus on are domestic, such as immigration, education, and racism, there is surely room in these movements for international justice. This may be the ideal moment to call attention to the cause of international justice and rally support for an international mechanism that was created with the express purpose of protecting the innocent and bringing the powerful perpetrators of crimes against humanity to justice. The Court has, until now, been a subject of discussion for legal and human rights experts; it is time to bring it into the mainstream of human rights and political conversations.