21 September, 2020

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International Justice Is Needed – Even If It Takes 100 More Years To Perfect It

By Philippe Sands –

Prof.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.

A Bosnian woman cries over newly dug graves of her two sons during preparation in July 2010 for the mass burial of victims of the Srebrenica massacre. Photograph: Dimitar Dilkoff/AFP/Getty Images

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)

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Latest comments

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    … Excellent … we pray for those who initiated the ICJ World Court & ICC … This is futuristic as we can see it enables the individual voter, taxpayer or minority citizen to see some justice meted out at least at the end of their lives…
    It is a necessary part of the evolution of Democracy itself…. for people who are citizens of countries which lack a set of internationally acceptable conventions of Governance or ceremonial monarchies that act as Guardians of the people being governed by numerous forms of Govts. and Leaders….
    Since increasingly Supreme Courts or Courts of Appeal of individual countries cannot be relied upon for justice or impartiality because the Judges are appointed by undesirable Leaders and the prerogative to elect them directly by the people are forever put off, overlooked, or ignored by the legal draftsmen or parliamentarians and their leaders … the ICJ/ICC is a welcome development to try unscrupulous leaders in trial to determine their guilt, remorse and evil conduct….
    This World Court / ICJ / ICC must grow… it should set up regional branches at first in every major continent …..
    When there is a higher place for SC judges to preside during their retirement … then we could expect impartial judges to be groomed in the SC of each country…..
    …We wish you SUCCESS & GROWTH…

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    Ohhh Really Not even 60 Years in Vietnam war with over 3 million people thanks to the USA no one to date has been prosecuted.. And Iraq less than 10 years where oceans of blood have been split… The leaders today are similar to you.. Lecturing others about so called war crimes, Human rights, and Democracy…. What a joke… and the ICCis the biggest joke… The terms Human rights, Democracy, Jihad are the most over abused terms in modern history

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      Please stop using that sacred name sjvC. Your inadequate knowledge and your sarcastic writing irritates many readers. Please use your own name and Let that noble soul rest in peace. Only empty vessel makes lot of noice for others to take note, We have had plenty of unbalanced presentation of comments from you,on all topics. It will be a shame if you go on repeating this type of nonsensical comments.

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    sjv chelvanayakam:
    Come off it, you stupid ………!

    You obviously would far rather see your friends, the genocidaires, not be called to account in any way for reasons that should be obvious to anyone who has encountered your sycophantic ramblings.

    There really should be a law against idiots like you having your nonsense published!

    P.S.
    As ineffectual as US justice can be from time to time, you seem to forget that Lt. Calley and others were prosecuted for their crimes. Maybe, you could give us some details of when and where the Russians (in Afghanistan, particularly) the Chinese (in Tibet, the Unmentionables in Sri Lanka were even INVESTIGATED, leave alone prosecuted!

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    I think like the UN it is a good idea. However, we now see the UN also being partial, how the the hand wringing of members take place with blackmail and promise of aid. Therefore the UN cannot be considered to be neutral or impartial. Similarly the intention of the Hague may be good but we want the atrocities cause by Israelis in the Gaza and places like Lebanon at least questioned. The US what they are doing in Iraq and Afghanistan is never questioned. All we hear is an occasional ‘sorry’. That is not enough, the US, ALLIED FORCES AND ISRAEL have to be brought to book, not necessarily the leaders but at least the commanders.

    On the other hand I do not think we can justify what is happening/happened in Sri Lanka. After all the Hague is a place for international accountability! Neither US/Israel nor Sri Lanka should be exempted.

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