When the International Criminal Court (ICC) came into being in April 2002, the delegates to its U.N. preparatory meeting stood and applauded. The court’s proponents were convinced that it would finally provide the remedy for "impunity" in international affairs by establishing criminal penalties for the perpetrators of the worst crimes: genocide, war crimes, and crimes against humanity. The ICC was also structured to have jurisdiction over leaders who take their nations into a war of "aggression," but so far decision makers at the ICC have been unable to agree on a definition of that crime.
The ICC is premised upon the idea that wrongdoers must be tried and, if convicted, punished so that others will be deterred. It is thus built upon the ideas of retributive justice and deterrence. Of course, Catholics and other caring people are dubious about retribution and deterrence when it comes to matters such as capital punishment, nuclear weapons, and just-war theory. We should be equally cautious about these matters when it comes to genocide, crimes against humanity, war crimes, and wars of aggression.
Fundamental to the ICC is the notion that the "rule of law" will replace "politics" in international affairs. The ICC is a stand-alone court, entirely separate from the United Nations. This was intentional; since it has no ties to the U.N., it is free from control by the Security Council and its permanent five members armed with a veto power. Moreover, the ICC does not have to accept amnesties granted by individual nations. (The specter of a General Pinochet or Idi Amin dying old, rich, and free animated much of the discussion regarding the structure of the ICC.) This elimination of impunity is supposed to ensure peace. Unfortunately, the opposite result is likely¯at least in many foreseeable cases.
Pope Pius XII’s 1945 encyclical, Communium Interpretes Doloraum (An Appeal for Prayers for Peace), said: "Do you want peace? Do justice, and you will have peace." That is good advice, but it evolved into the slogan: "No Peace without justice." Improperly understood, that becomes not analysis but a threat. ("Provide justice, by punishing my enemy, or I will not be peaceful.") In 2002, Pope John Paul II tried to clarify the misunderstanding by adding a provision: "No justice without forgiveness." Unfortunately, too many architects of modern international organizations have missed this important clarification.
Not only can peace and justice exist independently, they sometimes are in conflict. In fact, sometimes we do not want justice¯at least if that means deserved punishment for wrongdoings. Contemplating the sin of slavery, Thomas Jefferson once stated, "I fear that God is just." He hoped, of course, that God was merciful rather than just. Unfortunately, the drafters of the ICC seem to have missed this point.
The idea behind the ICC is derived from the Nuremberg trials after World War II. This approach to justice was successful in that circumstance because Nazi Germany was a conquered nation and most of the principal defendants were already in custody. In fact, this approach was largely foreordained when the Allies, during the war, made the demand for an unconditional surrender. The dynamics would be very different in a society that was in the midst of (or just emerging from) a civil war.
South Africa’s transition from apartheid to democracy, for instance, was accomplished through negotiation. The Truth and Reconciliation Commission (TRC) process must receive credit for South Africa’s bloodless transition, even though it certainly permitted notorious wrongdoers to escape criminal punishment. Archbishop Desmond Tutu has often spoken of the need to forgo retributive justice in order to balance truth, justice, and reconciliation. Sometimes those values compete with one another. As Tutu has explained:
Retributive justice¯in which an impersonal state hands down punishment with little consideration for victims and hardly any for the perpetrator¯is not the only form of justice. I contend that there is another kind of justice, restorative justice, which was characteristic of traditional African jurisprudence. Here the central concern is not retribution or punishment but, in the spirit of ubuntu , the healing of breaches, the redressing of imbalances, the restoration of broken relationships. This kind of justice seeks to rehabilitate both the victim and the perpetrator, who should be given the opportunity to be reintegrated into the community he or she has injured.
Unfortunately, the ICC structure elevates retributive justice over these other concerns, including the preservation of peace. As such, and as we have previously argued in these pages (" Court Out of Order ," April 2003), the court has the capability of doing more harm than good. It looks like the court is doing that harm even sooner than we had anticipated.
Consider Uganda and the Lord’s Resistance Army (LRA). Jan Egeland, the U.N. Undersecretary-General for Humanitarian Affairs, has described Northern Uganda as "the world’s terrorism epicenter." For twenty years, LRA leader Joseph Kony and his followers have raped, looted, sold human beings into slavery, forced boys into LRA service, and pillaged the countryside. Allegations against the LRA include the hacking off of limbs, ears, and lips as a means to terrorize enemies. In fact, LRA has killed more people than al-Qaeda, Hamas, and Hezbollah combined.
It is not surprising that Kony and other top leaders of the LRA were the subjects of the ICC’s first indictments for war crimes and crimes against humanity. The government of Uganda, a member of the ICC, referred the case to the court after having exhausted efforts to defeat Kony militarily or to negotiate a political solution to the crisis. In July 2006, however, the prospects for peace brightened significantly when Kony indicated a willingness to commit to peace talks and to renounce violence in exchange for an offer of amnesty from the Ugandan government.
The LRA and the Ugandan government began negotiations aimed at ending the hostilities. Unfortunately, the ICC indictments are a significant obstacle to peace. Kony will not agree to terms unless the ICC drops its indictments. The ICC, however, will not go along. According to a news account from Africa: "Already, the government and the ICC are knocking heads over the amnesty matter. The ICC, which has indicted and issued arrest warrants for the LRA leadership, says Kony and his men should be arrested, not granted amnesty. The Ugandan government thinks otherwise, for the sake of peace."
The problem is that the ICC does not recognize national amnesties. The prosecutor has no authority to stop a prosecution simply because a nation has negotiated a peace agreement that includes an amnesty. The prosecutor seems to be in a catch-22, between the ICC’s requirement that people such as Kony be tried and the desire for a final, peaceful resolution of the situation without further bloodshed.
This catch-22 is inherent in the ICC, but some proponents are now arguing for what appears to be an extralegal solution. Cherif Bassiouni, an eminent commentator on international law and an architect of the ICC, has suggested that somebody (it’s not clear who) could simply talk to the ICC prosecutor and convince him that, despite the clear requirements of the ICC statute, he should simply "not push the case forward. You can just let it sit."
With this suggestion, the ICC has come full circle. In an effort to separate the ICC from the dirty work of international politics, the court’s proponents chose to keep their creation pure by rejecting all political connections. This showed an unbending faith in legal institutions as the only route to justice. In its very first test, however, it is becoming clear that the ICC drafters ignored the fact that peace is more important than perfect justice, at least if peace prevents more innocent blood from being spilled. The only solution proffered to this structural flaw in the ICC is one that would make a Chicago ward boss happy¯two old bulls, the prosecutor and "somebody," meet in a backroom and decide what is best for Uganda.
Perhaps all this will yet work out. The LRA and Kony might be bluffing. Perhaps they will be defeated militarily despite present appearances. Such a result would not, however, resolve the structural problem or eliminate the likelihood that in the future the exact same situation will recur and not be settled.
While there is obviously a place for criminal prosecutions of tyrants who violate international criminal law, this is only one tool among several in the search for justice. The problem with the ICC is that it favors criminal prosecution in every situation. At Nuremberg, this model made sense. When an outside force has defeated the bad guys, there is no threat of civil war, and the defendants have already been captured, trials are very logical. In other cases, however, they may only prolong the suffering.
It is worth noting that existing tribunals have not contributed to regional reconciliation or deterred violence. Both Srebrenica and Kosovo happened during the era of international tribunals. Moreover, since international trials are slow and expensive, they draw resources from other initiatives that might do more good.
It is also worth mentioning that honest trials are not very good places to convey messages to the people. Prosecutors go for conviction, not a historical record. One problem with the prosecution’s case in the Slobodan Milosevic trial was that it tried to tell the whole story of the war and drowned in its own narrative. Moreover, the idea of a message can cut two ways. Saddam Hussein certainly tried to turn his trial into a "theater of defiance," which may have encouraged his supporters. Hitler did the same thing when put on trial in Germany for his failed Beer Hall Putsch. As Indiana University law professor Timothy Waters has argued, too often trials are held because outsiders need a villain. That is not a sufficient justification.
A comprehensive strategy to combat serious violations of international criminal law would incorporate amnesties (including the U.N. Security Council’s power to grant pardons, not just the ability to temporarily delay prosecution), truth commissions, exile for entrenched leaders, lustration for midlevel officials, and civil compensation. It would prioritize domestic processes and have the courage not to insist on trials in countries that are not ready. As Prof. Waters noted, a comprehensive strategy would also recognize that "the energy expended on tribunals might be better invested in building consensus on robust, timely intervention when crimes are being committed rather than seeking punishment afterward."
The solution is not complex, but it will be difficult for ICC purists to swallow. The ICC must be tied to an international political body that can serve as a political check on the prosecution. The obvious candidate is the U.N. Security Council. Indeed, the Security Council has set up several tribunals in recent years in response to similar atrocities. The problem is that the ICC’s proponents want to preserve the possibility of prosecuting citizens of the five nations that are permanent members of the Security Council. That would be highly unlikely if the Security Council controlled the ICC’s agenda. So, in order to ensure that a U.S. official could theoretically be tried in the ICC, people continue to die in northern Uganda.
The tradeoff just doesn’t seem worth it.
John M. Czarnetzky is associate professor and Mitchell McNutt Lecturer in Law at the University of Mississippi School of Law. Ronald J. Rychlak is Mississippi Defense Lawyers Association Professor of Law and associate dean for academic affairs at the University of Mississippi School of Law.