Purpose of the International Criminal Justice - Assignment Example

International Criminal Justice What obstacles lie in the path of achieving the objectives of international justice? The concept of “internationallaw” has fuelled academic debate regarding its interpretation, parameters and whether it in fact hinders measures to maintain international order, by virtue of the fact that there is a dichotomy between theory and the reality of the formation of customary international law as particularly with regards to the requirements of statehood in the international legal arena (Kelly, 2000: at pp.500-7). Furthermore, notwithstanding the theoretical importance of international law making in areas such as human rights and as a check on autocratic state power, these measures are only as effective as their practical enforceability, which some commentators have challenged in light of competing political interests at international level, arguing that customary law has effectively been replaced by national concerns in inter-state relations (Dixon, 2007: p.17). Directly correlated to this is the concept of “state” and “inter-state relations”, which in terms of individual human rights protections at international level has become a central issue particularly in context of rapid globalisation (Benvenisti & Hirsch, 2004). Additionally, the concept of “international law” is important in considering the justification for the international justice mechanism as a framework for global accountability. Hedley Bull described international law as a “body of rules which binds states and other agents in world politics in their relations with one another and is considered to have the status of law” (Hedley Bull, 1977: p.147). However, many commentators have questioned whether this theoretical ideal of “international law making” is actually reflected in fact by “the existence of any set of rules governing interstate relations, secondly, its entitlement to be called “law” and, thirdly, its effectiveness in controlling states in “real life” situations” (Dixon, 2007: p10). Indeed, Carty highlights the point that there is in no complete system of international law to provide resolutions to disputes in contemporary international relations, which arguably highlights the central problem underlying arguments against the efficacy of the alternative mechanisms of international justice (Carty, 2007: 169). Carty’s assertions are rooted in the premise that states continue to operate as “states of nature”, with no unequivocal demarcation of rights under international law, further compounded by ad hoc, unilateral interpretation by member states. Moreover, the lack of a cohesive international legal system evidenced by inconsistencies in concepts of customary law results in a “clash between international law and measures deemed necessary to maintain a balance of power” (Carty, 2007: 170). To this end, Kissinger highlighted the credibility problem with international justice mechanisms, further compounded by what he posited as the inconsistencies in the implementation of legal norms in the administering of justice in the power struggles amongst states; highlighting the underlying basis for the inherent “pitfalls” of any notion of a universal jurisdiction in international law (Kissinger, 2001). In turn, this highlights the point that the central obstacle to achieving the objectives of international justice is the dichotomy between the theoretical framework of international law and the primacy and power of state interests. 2: How successful have (a) ad hoc tribunals and (b) the ICC been to date? The International Criminal Court (ICC) is a permanent tribunal with the objective of prosecuting individuals under international law for genocide, war crimes and aggression. However, the ICC and the role of the International Court of Justice and ad hoc tribunals has further fuelled debate as to the efficacy of the international legal framework to act as a protective mechanism against abuse of human rights under international law; particularly in light of the dichotomy between international legal principles and inter-state relations. For example, Kissinger argues that this is evidenced by the ICC prosecution having discretion regarding accountability, which is further shaped by the fight between the overriding political interests of sovereign states (Kissinger, 2001). Therefore, in practice the ICC whilst of extreme symbolic importance has suffered from the same problems of enforceability that existed under the previous ad hoc international criminal courts that were set up to address breaches of international law (Roach, 2006, p.23). Furthermore, it is submitted that the intrinsic limitation of ad hoc tribunals and the ICC has been the interrelationship between the wide judicial discretion and ambiguous nature of jurisdiction and enforceability at national level (Roach, 2006). This in turn is compounded by the complex nature of treaty provisions and the restrictive nature of customary principles of international law (Roach, 2006, p.23). To this end, Roach refers to Campbell’s discussion of legal positivism he asserts that “it is the practice of law as the mechanical application of rules without thought to consequences for human well-being and social justice in particular cases” (In Roach, 2006, p.23); which highlights that the central problems in the efficacy of the ICC and ad hoc tribunals has been the gap between legal theory and enforcement at national level. This was evidenced in the case of R v Jones ([2006] UKHL 1) where the House of Lords rejected the appellant’s claim that the Iraq war constituted an illegal act of aggression under the Charter. In rejecting the appeal, Lord Bingham asserted that “the crime of aggression is not a crime in the domestic law of England and Wales”. The judicial rationale in the Jones case was rooted in the notion that floodgate claims facilitating anarchy would result from enabling such a claim. Moreover, Lord Bingham stated that the international law crime of aggression was not a crime under national law and that it was “not for judges to decide what conduct should be treated as lying so far outside the bounds of what is acceptable in our society so as to attract criminal penalties.” This dictum again highlights the dichotomy between theory and law, which in itself lends itself to the use of international law as a tool in furthering political and social power. The Jones decision further begs the question as to the usefulness of the Charter in practice if the crime of aggression under international law is claimed to be unenforceable at national level due to national courts asserting lack of jurisdiction. In turn, the dichotomy between theory and practice has facilitated scope for abuse. For example, Megret argues that the deficiency in the international law concepts of aggression, enabled the Bush administration to evolve ad hoc concepts of self defence justified as being necessary in the war on terror, thereby compromising the rule of law (Megret, 2002: 386). In addition to the definition issues, the problem was further perpetuated by the lack of judicial body presiding over crimes of aggression and international war crimes per se. In 1991 public outcry over ethnic cleansing in former Yugoslavia led to the SC appointing an ad hoc International Criminal Tribunal for Yugoslavia. In addition to questions of selective enforcement, the ad hoc tribunals also highlighted the fact that temporary courts created by the SC after massive crimes have occurred with only limited jurisdiction to try a limited category of crimes is not the most effective way to ensure justice. To address these issues, the ICC was established by the Rome Statute for the Establishment of an ICC 1998. However, Ralph in his discussion of the International Criminal Court argues on the one hand that the ICC can be viewed as a symbol of the international community’s response to preserving “global democracy” (Ralph, 2003). However, this is undermined by the prime power US being opposed to the accountability of the ICC and the way it utilises its UN veto in the Security Council. On these grounds, Ralph further argues that the ICC effectively has implemented US controlled conventions of democracy in the international framework, which clearly undermines the purpose of a representative international legal framework (Ralph, 2003). The establishment of a permanent jurisdictional body was welcome and needed but adoption of the Rome Statute without containing an applicable provision on aggression was its main defect. Additionally, there was no clarification as to what pre-conditions would merit the Court’s jurisdiction. Furthermore, control is still vested in the hands of the SC (Article 16) with powers to suspend the jurisdiction of the Court in relation to any particular case for a period of 12 months and to renew suspensions monthly. This in turn reinforces that notwithstanding the benefits of a permanent judicial body to enforce international legal principles, the intrinsic limitations on enforceability and the political interests at play influencing ICC decisions has in practice undermined the success of the ICC. 3: Is it always appropriate to prosecute violators of international crimes? The high profile cases of mass atrocities requiring UN peacekeeping initiatives in the 1990s reignited the debate as to whether it was always appropriate to prosecute violators of international crimes (Osiel, 2000). Osiel highlights the central issue in this debate being “how new democratic regimes ought to best redress the wrongs of their predecessors, especially the massive human rights violations perpetrated by government officials” (Osiel, 2000). It is submitted that whilst the availability of the ICC and International Court of Justice would suggest the need to ensure consistent accountability of violators of international crime, Osiel highlights the reality that often the need for retribution leaves unsatisfactory results (2000)In supporting this argument, Osiel comments that in the very few cases where conviction has been obtained “for large scale, state-sponsored massacres, it has been secured only at the apparent price of troubling departures from settled law and principles” (Osiel, 2000). On the other side of the spectrum, Farer highlights the point that the focus on after the event convictions avoids the fundamental issue, which should be for the international community to and the United Nations in particular, to focus on prevention and intervention (Farer, 2000) A prime example is the United Nations Assistance Mission for Rwanda (UNAMIR), which was intended to help enforce the Arusha Accords of 4 August 1993 and in turn facilitate the peace process between the Hutus and the Tutsis. However, the UNAMIR is well documented as having failed in its mission to maintain and restore peace in Rwanda. The UN and UNAMIR failure in Rwandan has perpetuated the debate regarding the legitimate boundaries and efficacy of the UN’s role in post conflict situations. With regard to the failure in Rwanda, this is exemplified by the controversial firsthand account of General Romeo Dallaire’s “Shake Hands with the Devil” (2003), which provides a graphic insight into the UN failures in Rwanda. Dallaire’s memoir unveils his personal trauma in a controversial narrative, which highlights the flaws of the UN role in enforcing international law. For example, Dallaire suggests that a central flaw was the policy of intervention post conflict, whereas the UN’s first priority should have been to intervene to prevent the mass genocide of 800,000 Rwandan Tutsis in 1994 (2003). Dallaire highlights the failure of the UN in preventing the atrocities by presenting his account as a “cri de coeur”, where the native Africans and witnesses were forced to watch “as the devil took control of paradise on earth and fed upon the blood of the people we were supposed to protect”. To this end, Dallaire also highlights the central problem regarding an international consensus on the definition of democracy” within a definitive international legal framework, which is arguably the implied justification of intervention measures geared towards restructuring post armed conflict (Lietzau, 2004). Indeed, Caplan highlights that since the mid 1990s, the United Nations and other organisations have been vested with: “Exceptional authority for the administration of war-torn and strive ridden territories…..these initiatives represent some of the boldest experiments in the management and settlement of intra-state conflict ever attempted by third parties” (Caplan, 2005, p.1). However, the problems of post conflict restructuring and questionable basis for after the event convictions suggests that it is not always appropriate to prosecute violators of international criminal law. 4: What are the future prospects for international criminal justice? It is submitted that ultimately, accountability under international law particularly with regard to post conflict peace building is essential to maintaining legitimacy under the international legal framework. To this end, the inherent limitations of ad hoc tribunals and the ICC to ensure accountability, along with the shifting dynamics of contemporary warfare and the complex nature of the international political order; necessitate responsible intervention and peacekeeping efforts. However, a central problem is the exact legal parameters within which such initiatives operate, which is compounded by the wide discretion offered to the Security Council under Article 39 and the ICC in enforcement. This in turn has created problems for the UN in terms of legal justification for humanitarian interventions and the role of ad hoc peacekeeping missions of the 1990s have further blurred the distinction between legitimate peace building on humanitarian grounds on the one hand; and backdoor state building on the other. As a result, this creates concerns for the future of international justice particularly as this appears to be increasingly dependent on where the balance of power lies within the contemporary framework of international relations. BIBLIOGRAPHY Benvenisti, E. & Hirsch, M. (2004).The Impact of International Law on International Co-operation. Cambridge University Press. Bull., H (1977). The Anarchical Society: A Study of Order in World Politics. Macmillan. Caplan, R., (2005) International Governance of War-Torn Territories: Rule and Reconstruction. Oxford University Press. Anthony Carty (2007). Philosophy of International Law. Edinburgh University Press. Dallaire, R. (2003). Shake Hands With the Devil. Random House M, Dixon., (2007) Textbook on International Law. 6th Edition. Oxford University Press. Farer, T. Restraining the Barbarians: Can International law help? (2000) human rights Quarterly 90, 92-93 Patrick Kelly., (2000). The Twilight of Customary International Law. 40 VA. Journal of International Law. 449. Henry Kissinger (2001). The Pitfalls of Universal Jurisdiction, Foreign Affairs 80(4), July /August 2001: 86-96 Lietzau, W. K., “Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism” (2004) UNYB 8. Megret, “War? Legal Semantics and the Move to Violence,” EJIL VOL 13, No 2, 261-399 (2002). Osiel, M., “Why prosecute? Critics of punishment for mass atrocity”, (2000), 22 human Rights Quarterly, 118 Ralph, J (2003). Between Cosmopolitan and American Democracy: Understanding US Opposition to the International Criminal Court. International Relations, 17, 195-211. Roach, S. (2006). Politicizing the International Criminal Court. Rowman & Littlefield. 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