Demystifying International Courts: The True Challenges to Justice
After two world wars, peoples from around the world have come together to ensure that civilians are no longer be at the mercy of the whims of states. However, there remain major challenges to peace to this day. The modern concern comes, not from a lack of capacity for international cooperation in conflict prevention and resolution, but rather from an inability to get great powers to comply with international regulations and a lack of understanding among states that the goals of international courts are in establishing a fair, judicial system worldwide.
The two world wars changed perspectives on interstate warfare. The lack of regulations for maintaining at least some regulation of conflict led to enough casualties to make all the great leaders sit down and make an entire separate organization committed to maintaining peace. First came the League of Nations, and then, after its obvious lack of success, the United Nations. The presence of these international institutions was revolutionary and continues to remedy otherwise devastating conflicts. Yet even that is not enough. While countries, through the UN, agree to maintain peace and universal respect for human life, they all keep their respective sovereignty and the UN can under no conditions interfere with internal affairs. While the UN is a perfect place to gather and resolve international conflicts before escalation, civil wars and aggression by non-state actors remain highly plausible and a major security risk in the post-WWII era.
Major failures of the UN’s conflict prevention rhetoric are evident in genocides which occurred even after WWII, notably in Rwanda and Yugoslavia. This prompted international community to see an urgent need for action. The International Tribunals for Rwanda and Yugoslavia were created to ensure the victims received some peace of mind knowing that the perpetrators were punished. Though the idea of war crimes were first established and agreed upon multilaterally at the Hague Conventions of 1899 and 1907, agreeing to these labels and determining what is and is not a crime may be more challenging. Each country aims to protect its citizens, which prompts it to reject outside judgement for its past crimes, for the sake of protecting its sovereignty. Yet recent history shows persistent attempts to regulate warfare and punish tragic practices. American President Abraham Lincoln established the Lieber Code during the American Civil War, a set of rules to attempt to regulate warfare through protecting civilians, property, condemning the practice of taking prisoners of war, engaging in prisoner exchange among others. The 1847 Brussels Declaration borrowed heavily from the Lieber Code, but was never adopted by major nations. The Hague Conventions saw some progress, though a coalition of countries led by Germany ensured that none of the protocols were binding. The Geneva Protocol followed WWI and added prohibitions regarding the use of mustard gas and other chemical weapons. However, making all these rules and definitions universally accepted and fully binding was virtually impossible. After the Nuremberg Trials, however, everyone, even non-signatories to previous conventions, agreed to commonly accepted rules of warfare, including the protection of civilians and attacks only with a prior warning. Obviously, as mentioned earlier, none of this was enough to prevent future genocides. After the International Tribunals for Rwanda and Yugoslavia showed success in gathering evidence, apprehending suspects, and even sentencing at least major government and military officials, there was hope for an apprehensive, mutually agreed upon and, most importantly, enforceable international legal system. This led to the Rome Statute of 1998, a more formal recognition of war crimes, which also took into account the events of Rwanda and Yugoslavia which served to create the International Criminal Court (ICC), a legal body with jurisdiction over certain international crimes. For international law, this is revolutionary as rules of warfare are finally enforced. Conflicts can be regulated, and even prevented, and no civilian would unjustly die or suffer the effects of mindless bloodshed.
However, as states can always claim their sovereignty and lean on exceptionalism, the Rome Statute saw no ratification in either Russia or the United States, and the ICC has no support from the United States, China, or Russia. The ICC saw some success in its operation and is to this day engaging in resolving the Ugandan conflict of early 2000s, and has settled to address four major breaches of war code: crimes against humanity, war crimes, genocide, and most recently added (in 2018) the crime of aggression. Even with an organized structure, transparency (trials can be viewed online), and support from most states, none of the world’s major militaries are official parties to the court. This creates limitations. First, the ICC, the only body capable of punishing war criminals worldwide, can do virtually nothing to punish incidents of violent crimes executed by these states as all of them are on the UN Security Council and any investigation into a non-party to the ICC must be referred to by the Security Council. This renders it impossible to punish either U.S., Russian, or Chinese officials as they would, being members of the Security Council, have to agree to the investigation into their internal affairs. On top of this, the absence of these major powers means that the credibility of the court is in danger and it is only a matter of time before other states party to the court begin feeling manipulated by international bodies. Especially in the eyes of the nationalists, this can be seen as a way to keep the smaller states in check and ensure they remain powerless and at whim of bigger states who, free from any pressure of the ICC, can use this rhetoric to diminish the court’s credibility.
Backlash against international institutions is on the rise. One can only imagine what impact dissolving the ICC would have on the balance of nations and retaining at least some sense of civility and international emphasis on peaceful conflict resolution. Even the country of origin of the Lieber Code, the US, is very closed off to the idea of greater involvement. The fact that the crime of aggression, which outlaws invasions and war in general (aside from some conditions of course), was added to the already short list of crimes, did not make the situation any better since major powers such as the US, Russia, and China find comfort in having and using their military capacities. On the other hand, smaller countries, especially the ones who, unlike major states, have agreed to let go of some of their sovereignty and allowed international institutions in, became more viable to rise of nationalism and exceptionalism of their own and giving up on the international courts.
One clear example is the concern voiced by many African countries that the cases brought to the ICC are exclusively focused on the African continent and are thus only another example of neocolonial tendencies of the developed world. Given that every single one of the cases currently in the ICC are pertaining to African nationals, their concerns are very much confirmed in reality. Of course, the goal of the ICC is not to punish countries, but rather to aid the national court systems in prosecuting their wartime governments, so the argument that the western governments are focused on improvement of the domestic African justice has some merit to it. This does not mean that the African countries have no reason to be upset and Reuters, among others, explains that the Kenyan government has in fact announced the desire of the African Union members to withdraw from the ICC due to the concern that the court is deliberately targeting African leaders.
Increasingly nationalist, ethnocentric European countries are also likely to show a more formal rejection of the court. While the EU is supportive of the ICC, there are increasing levels of suspicion against both the EU and the ICC, showing another fundamental threat to this court’s existence. Unlike the US, the EU fully supports the ICC, but this question remains highly sensitive to the desires of dominant national parties. With people such as questionably acquitted Vojislav Šešelj, Serbian ultranationalist, having been released from the International Criminal Tribunal for Yugoslavia and having openly insulted and made fun of the international court that inspired the ICC, as reported by Balkan Insight, there are even more threats to destabilization of domestic and international politics, as well as discreditation of the ICC.
It is obvious that this highly valuable international institution is facing threats. Some ways to mitigate this threat and improve its credibility, thus providing for a more stable, just international community, would be a wider acceptance of the ICC in the entirety of the UN Security Council to ensure that the court really does have universal jurisdiction, as Russia, US, and China are currently neither signatories nor ratifiers. On top of this, educational programs are lacking-countries that do experience “intrusion” by the ICC should also be provided technical support to provide necessary education and media coverage that explains the value of the sacrifice of sovereignty for the sake of this higher purpose, which would reduce the risk of a nationalist backlash and make the court stronger and better understood.