By Philippe Sands –
It sometimes feels like a week doesn’t pass without some former head of state or other alleged outlaw on the front page as a new international trial opens. This week alone there’s Charles Taylor’s sentencing hearing at the special court for Sierra Leone, the opening of Ratko Mladic’s trial at the international criminal tribunal for the former Yugoslavia, and Khaled el-Masri’s extraordinary rendition case at the European court of human rights.
These and other cases are the product of a century-long effort towards the creation of an international judiciary. A first wave began in the 1920s, with the creation of an international court in The Hague to hear disputes between states. Many early cases involved allegations of the mistreatment of minority groups in various parts of Europe. The end of the second world war unleashed a second wave, starting with the international military tribunal at Nuremberg and Tokyo and the creation of human rights courts in Europe and elsewhere.
A third wave came in the 1990s, following atrocities in the Balkans and Rwanda, the catalyst for creating the Yugoslav and Rwanda tribunals and – after five decades of effort – the Rome statute of the international criminal court. This was also the moment for the House of Lords’ ruling that Augusto Pinochet was not entitled to claim immunity for international crimes alleged to have occurred while he was head of state, a reminder of the enduring and predominant role of national courts.
Two developments are under way, distinct but proceeding hand in hand. The first is that the new international institutions are necessary appendages to police the global rules that most people agree are needed for the proper functioning of our embryonic international order. International courts are not limited to human rights and crime: others function in the economic sphere, to enforce free trade rules, intellectual property rights and foreign investments. Ironically, many of those who are on the front lines criticising human rights and criminal courts for excessive interference in sovereign affairs are leading defenders of international courts that protect economic rights.
The second trend is the recognition of the growing place of the individual in the new order. In this way, the individual is both a holder of rights that can be enforced against the state that is said to have done wrong – the Masri case – and obligated to avoid international crimes. A century ago this was unthinkable; only in the last decade does it approach normality. As recently as the 1930s, sovereignty was seen as being nigh on absolute: sovereignty meant a state could do pretty much whatever it wanted to its own nationals, including torturing and killing them on a mass scale. The post-second world war settlement changed that: sovereignty was seen as limited, not absolute, as individuals got rights and international bodies protected those rights. It’s not quite a linear relationship, but the direction is clear.
These developments are not free from criticism, one of globalisation’s discontents. Sovereigntists worry about outside interference by unaccountable, unknown international judges. Internationalists worry about delay and cost. Certain international judgments are not to everyone’s liking, going too far or not far enough. But there is no court in the world that is free from such critique.
The more serious concern is the danger of lopsided international justice, a world of laws that are “spider webs through which the big flies pass and the little ones get caught”, as Balzac put it. Look on the website of the ICC and see who is in the dock. Every one of the faces and names is African. Yet Africa plainly does not have a monopoly on international crime, and this unhappy and lopsided picture tends to give force to the critique that international justice is pro-western and controlled by the victors. One wonders quite what it will take, for example, for a proper international investigation of the well-documented allegations of torture and other abuse at Bagram and elsewhere in Afghanistan, a country that has been a party to the ICC statute since 2003.
Hopefully these will come to be seen as teething problems. Today’s international courts, and this week’s news stories, are the product of ideas generated long ago, in the 1940s and even before. It took centuries to create the system of English courts. Warts and all, our international courts do a good job in difficult circumstances. They won’t end international crime or wrongdoing any more than local courts can make national crime disappear. They do make a difference, however, and it’s difficult to see a better alternative. They are here to stay. They will be better, stronger and even more legitimate when the playing field is more level.
Philippe Sands QC is professor of law at University College London. His next book is on the remarkable lives of those who brought crimes against humanity and genocide into international law. ( Courtesy Guardian)