The Meaning of Justice
April 3rd, 2020 | By Dalton Bath
The injustices of such events are clear. More ambiguous is the question of what it would mean to ensure justice for victims of these crimes. How can the international community hold the perpetrators of atrocities accountable when they are so often above the law?
This question was the motivation behind the creation of the International Criminal Court (ICC). Formed in response to ethnic cleansing in the Balkans and Rwanda, the ICC is tasked with the responsibility of prosecuting the world’s most heinous criminals - those who have committed war crimes, crimes against humanity, the crime of aggression, and genocide. The Rome Statute, finalized in 2002, is the ICC’s founding document. Countries that sign the Statute and ratify it in their national legislatures become members of the ICC and are subject to its jurisdiction. The primary objectives of the Court are to end the impunity of political and military leaders and to ensure a universal standard of justice.
Sounds great, right? Surely the ICC is the solution to global injustice. After all, Omar al-Bashir, the president of Sudan, was indicted by the ICC in 2009 for his role in encouraging such crimes in Darfur. In fact, since its creation, the ICC has indicted dozens of war criminals in conflict regions across Africa.
Across Africa.
This is where the problem lies. Many legal experts have concluded that the Court is “uncompromisingly European” in its worldview and interpretation of international atrocities - interpretations that become apparent when examining its actions. Of the ICC’s first 11 investigations, 10 of them took place in African states, indicating that perhaps that the Court’s Western origins have resulted in innate biases.
A major flaw of the ICC is that it is able to prosecute criminals only in its member states. While 123 nations are member states, there are some notable exclusions from this list: Russia, China, and the US. Why does this matter? It matters because the ICC is unable to ensure justice for the Syrian citizens deliberately targeted by Russian warplanes in 2016; the million Uyghurs held in Chinese re-education camps; or the patients and staff of a hospital in Kunduz Afghanistan killed by an American drone strike. Some of these events are talked about more in the media than others, but let's face it: they are all injustices that the ICC has no authority to address.
Legal scholar Fredrick Cowell claims that the Court’s limited jurisdiction is more than an administrative failure: He argues that certain provisions of the Rome statute are inherently imperialist. I won’t bore you with all the legal details, but it is worth exploring how the ICC functions as a political instrument rather than a tool of justice.
But how, you might wonder, is this imperialism? Article 13 of the Rome Statute gives the Security Council of the United Nations an important role in deciding which countries will be investigated by the ICC. It should be noted that there are five permanent members of the Security Council, three of which are of interest to us: Russia, China, and the US. Sound familiar? So while the leaders of these three countries will never be held accountable by the international community for their own crimes, they play a role in determining who does get prosecuted. In 2005, the Court consulted with the US State Department directly over the prosecution of Sudanese officials, while China and Russia vetoed a proposal to investigate the war crimes of their ally Syria in 2014. Don’t get me wrong, the crimes committed by al-Bashir and other African leaders are horrific, but Article 13 enforces a double standard between the global South and powerful nations (and their allies). This is not justice.
It doesn’t stop here. Article 17 dictates that ICC intervention is only required when a country's own justice system is unable to hold perpetrators accountable. This may seem good until you consider how this judgement is made. As pointed out by delegates who were present at the formation of the ICC, African justice systems are much more likely to be labelled insufficient than legal systems in countries such as the UK or France. In other words, there is a double standard between former colonial powers within the ICC and nations that were formerly colonized, playing into the problematic notion of unlawful savages in need of a civilized justice system.
Meanwhile, to address the fact that the Court can investigate only a finite number of cases, Article 15 gives the Prosecutor the ability to discern which cases are the ‘most serious’. This provision adds another lens of imperialism which likely contributes to the overrepresentation of African cases. Atrocities committed in Africa are seen as more uncivilized and therefore more serious, requiring outside intervention. Instead of helping rebuild the legal systems of nations devastated by colonialism, the Court often strips these nations of their legal autonomy and once again subjugates them to the authority of a foreign power.
The imperialism of Articles 15 and 17 have had real manifestations, made apparent by the sheer number of investigations in Africa. On the other hand, in 2006, the Court’s prosecutor declined the opportunity to investigate British war crimes in Afghanistan. While the actions of African governments and groups are readily labeled serious situations in need of intervention, such judgements were not made when a European power was accused of international crimes. This is not simply the result of prejudice among ICC officials; the very structure of the Court allows it to make these judgements. An optimist might suggest that at least certain criminals are being brought to justice through this model. This must surely be better than nothing. However, this justice may be short-lived as African states take notice of the ICC’s imperialism. Three states issued notices to withdraw from the ICC in 2016, stating that their decisions were “anti-colonial”, and urging members of the African Union to follow suit.
Don’t let the ICC’s failures disparage you, for there is an alternative to international justice in conflict-ridden nations. NGOs have the potential to provide justice on a local level, as they can enter a country and provide support for victims of rape, and other crimes prevelant in conflict zones. The NGO approach works to strengthen failing justice systems rather than impose an imperial vision of justice, and it is able to focus on everyday instances of injustice rather than focusing solely on the actions of prominent political figures.
War Child is an NGO dedicated in part to providing justice for children in areas affected by conflict. Part of what this means is rebuilding the legal infrastructure of these countries rather than third party intervention. War Child is a registered law firm in both Uganda and Afghanistan, and it provides legal support and advice to women accused of “moral crimes” such as running away from forced marriages. Furthermore, the NGO hires most of their staff from the countries they operate in, meaning they provide legal training to locals, allowing for self-sufficiency in the pursuit of justice.
By building a capacity for justice from within, War Child addresses the concerns created by selective visions of justice imposed from the outside. NGOs are by no means a final solution to the issue of injustice as they simply don’t have the ability to hold the leaders of powerful countries accountable. I’m not saying this method is perfect, as few methods are, but a local approach to justice is a sustainable approach to justice that addresses many of the problems associated with the ICC.
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Sources:
https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf
It is September 2, 2010. A market in the Darfuri village of Tabarat is bustling with activity. A group of militiamen, who will later be suspected of being affiliated with the government of Sudan, ride into the market on the backs of horses and camels. It seems as if the men are just passing through; they browse the shops as if they wish to buy something, perhaps a cup of tea. But the vibrant mood dissipates as the men turn and open fire on the crowded market place. Unarmed civilians fall to the dirt as more militiamen jump out of armed vehicles and round up survivors.
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