The International Criminal Court’s fundamental flaw

Note: This article was published on October 10 but posted to my site only on December 3

In my last column, I noted in passing that the International Criminal Court’s blatant anti-Israel bias is merely a symptom of a more fundamental flaw. That isn’t self-evident; court supporters would doubtless argue, just as many people do about the United Nations, that while the court’s anti-Israel bias is regrettable, it’s an isolated flaw that doesn’t outweigh the benefit of ending impunity for atrocities.

What convinced me both that the ICC is unredeemable and that the impunity problem has a better solution was actually a book by one of the court’s ardent supporters—Philippe Sands, a law professor and international lawyer who has worked on ICC cases. In East West Street, Sands traces the development of two key concepts in international law—crimes against humanity and genocide—to their respective culminations in the Nuremberg Trials of 1945 and the Genocide Convention of 1948. But for me, the real eye-opener was his description of the international wrangling that preceded the Nuremberg Trials.

Nuremberg is sometimes derided as victor’s justice. And in one sense, it obviously was: Four of the victors of World War II—America, Britain, Russia and France—decided to put senior officials of their vanquished foe on trial. But what was striking about Nuremberg was the massive degree of international concord required to hold those trials. Lawyers representing several very different legal systems and several very different systems of government nevertheless had to agree on every word and even every comma in the indictments. And since those lawyers were acting on their governments’ behalf, political approval by all four governments was also needed.

In contrast, the ICC needs no international buy-in at all to pursue a case. Granted, its prosecutors and judges come from many different countries, but they represent neither their home governments nor their home legal systems. Politically, they represent nobody but themselves. Legally, they represent one particular interpretation of international law—an interpretation popular with academics and “human rights” organizations, but less so with national governments.

At first glance, both of the above may sound like pluses. Prosecutorial and judicial independence are generally good things, whereas many governments and legal systems leave much to be desired when it comes to protecting human rights.

But the ICC’s version of prosecutorial and judicial independence is very different from the version found in most democracies because the latter is not completely unconstrained. In democracies, prosecutors and judges are constrained first of all by democratically enacted legislation, and usually by democratically enacted constitutions as well. They’re also constrained by the fact that they, too, are citizens of their country, and therefore share concerns important to most of their countrymen—for instance, national self-defense—but unimportant to judges and prosecutors from other countries (which those at the ICC almost always will be).

Moreover, in democracies, courts ultimately derive their power from the consent of the governed since they were established pursuant to democratically elected laws or constitutions. The ICC, in contrast, asserts jurisdiction even over countries that never consented to it. See, for instance, the cases it’s pursuing against Israel and America, neither of which ever joined the court.

What all this means is that a few unelected individuals have been given the power—or even worse, in the case of countries that didn’t join the court, have seized it—to criminalize decisions made by democratically elected national governments. They can do so based on a legal system different from those of many democracies, and whose provisions they can interpret however they please, unburdened by the doctrine of precedent (stare decisis) that democratic legal systems generally employ. They can ignore considerations that citizens of most countries consider important, like national self-defense. They are even free to pursue personal vendettas, as evidenced by their biased treatment of Israel. In short, they have no constraints on their power at all.

All these problems are compounded, as legal scholar Jeremy Rabkin noted last month, when people from countries blessed with peaceful neighbors sit in judgment on the decisions made by countries not so blessed. At the ICC, people with no clue about, say, the difficulty of avoiding civilian casualties when combating attacks launched from crowded urban areas, or the devastating impact of living under constant rocket fire even when the death toll is low, presume to judge countries for whom such problems are daily realities.

In short, the ICC has none of the safeguards that national courts in democracies have. And no international tribunal ever could.

Nevertheless, letting atrocities like genocide go unpunished clearly isn’t an acceptable option. So how do we strike a proper balance between the need to prosecute atrocities and the need to maintain the safeguards that the ICC signally lacks?

The answer lies in the feature that distinguished not only the Nuremberg Trials, but also subsequent ad hoc international criminal tribunals like those on the Rwandan genocide and the Balkan wars of the 1990s—massive international consensus. Cases will be pursued only against acts so outrageous that many different governments and many different legal systems can all concur that they far exceed the realm of reasonable governmental or military action.

Granted, that means many crimes will go unpunished. But it turns out that’s equally true for the ICC. For instance, the court indicted Sudanese President Omar al-Bashir for the Darfur genocide almost a decade ago, but hasn’t been able to pursue the case because none of the many countries he has since visited has been willing to arrest him. Similarly, the ICC’s case against Kenya’s president collapsed because the Kenyan government refused to cooperate. In other words, successful prosecution is unlikely in any event absent either massive international consensus or the target country’s consent.

Thus replacing the ICC with ad hoc tribunals, which could be created only when the requisite international consensus exists, wouldn’t significantly reduce the amount of justice dispensed. But it would significantly alleviate the ICC’s main flaws: political bias, the undermining of national self-defense and interference with democratic national decision-making. That would be a win for both justice and democracy.

This article was originally syndicated by JNS.org (www.jns.org) on October 10, 2018. © 2018 JNS.org