International Criminal Court: Justice or Menace?
By: Guest Authors
By: Mary Jo Anderson
War criminal Ratko Mladic, the Serbian general accused of genocide during the 1990s Bosnian war, was arrested last week. This week he will be extradited to The Hague, a decade after the International Criminal Court (ICC) issued a warrant for his arrest. Despite western media portrayals, many Serbians consider Mladic a hero and defender of Serbians. In contrast, many Europeans view Mladicâ€™s case as an example of how the ICC is intended to perform on behalf of â€œinternational justice.â€
But other prosecutions that the Court has pursued are less clear in mission or scope. Unlike the International Court of Justice, which settles disputes between nations, the ICC was formed on the model of the Nuremburg Trials. It is a permanent court whose mission is to pursue individuals charged with genocide, â€œcrimes against humanity,â€ war crimes, and â€œcrimes of aggression.â€ The problem is that such crimes are so loosely or politically defined that any number of questionable applications may be attempted.
Kenya is one recent example. In 2007, ethnic and political factions erupted in violence following a national election. One partyâ€™s leadership was allegedly guilty of intimidating citizens at the polls, and those accused of retaliation include the nationâ€™s cabinet secretaries and the finance minister. The shattering aftermath of those elections left 1,200 dead and an estimated 350,000 homeless. The nation has limped along with a coalition government since 2008 and â€” so far â€” has averted civil war.
Kenya is one of 115 nations that are party to the Rome Statute, the treaty that established the ICC. But should the ICC step across sovereign boundaries to indict the alleged criminals? Is this a matter for the global courtâ€™s jurisdiction?
In May, new riots broke out over the role of the ICC in prosecuting Kenyan nationals. The majority of Kenyans think their fragile calm is working without interference from international monitors. Today, many in Kenya question the wisdom of submitting their nation to the ICC. Now new tensions have developed, as the ICC is rumored to have issued warrants against a list of names drawn up by the leading candidate for Kenyaâ€™s 2012 elections. However unlikely that accusation may be, a legitimate concern exists that the ICC could be politicized.
Kenyaâ€™s is not the first case where the manner and model of the ICC has been questioned. President Bill Clinton signed the ICC treaty on behalf of the United States on his way out of office in January 2000. Worried that the ICC had rough edges, he decided not to â€œrecommend that my successor submit the treaty to the Senate,â€ as the nation needed â€œthe chance to observe and assess the functioning of the Court before choosing to become subject to its jurisdiction.â€ President George W. Bush decided against any diminishment of U.S. sovereignty and rescinded the presidential signature. The treaty was never ratified by the U.S. Congress.
But last week, President Barack Obama praised the ICC for its commitment to bringing Libyan Muammar Qaddafi before the Court. Some say this public praise indicates that Obama may reopen the possibility of U.S. ratification; others warn that the ICC represents a danger for U.S. citizens, particularly our military officers. Itâ€™s worth noting that President Bush threatened to pull U.S. troops out of the UN coalition in Bosnia until the UN granted American soldiers and officers immunity from prosecution by the ICC. It is an uncomfortable position for the ICC and the UN when three of the permanent members of the UN Security Council â€” the United States, China, and Russia â€” have declined to ratify the treaty.
The Church and the Court
Catholics, too, have had an indication of how determined activists might seek to use the ICC to intervene in Church governance. On the eve of the Vaticanâ€™s preparation for the papal visit to Great Britain, atheist agitator Richard Dawkins and anti-religion curmudgeon Christopher Hitchens engaged a lawyer to bring charges against Pope Benedict XVI for a failure to control pedophiles within the priesthood. As reported in the Guardian,
Senior churchmen who protected paedophile priests, swore their victims to secrecy and allowed the perpetrators to continue working with children, committed the offence of aiding and abetting sex with minors. Practised on a large scale, this becomes a crime against humanity recognised by the international criminal court. This is the general Vatican policy over which the then Cardinal Ratzinger is accused of presiding. When Benedict comes to the UK in September he could, if Dawkins and Hitchens get their warrant, be arrested.
Level heads note that all religions, even all professions, have similar records of abuse against minors, but the Catholic Church, despised for other reasons, makes an especially lurid headline.
It would be a mistake to underestimate the possibility that the sex-abuse scandal within the Church could provide a platform for some to demand that the pope and other responsible churchmen be indicted by the ICC. Geoffrey Robertson is a UN Justice Council member; last year in an interview with the Guardian, Robertson said, â€œLegal immunity cannot hold. The Vatican should feel the full weight of international law. [Pedophilia is] a crime against humanityâ€¦. In any event, head of state immunity provides no protection for the pope in the international criminal court.â€
Other threats against the pope have been initiated by homosexual groups. Before the ICC was operative, but after the Rome Statute was enacted in 1998, a Dutch homosexual group investigated some international means of indicting Pope John Paul II for his comment that a gay pride parade in Rome had been â€œoffensive and insulting to Christian values.â€ The Dutch activists claimed that the Holy Fatherâ€™s comment was discriminatory and incited hatred against homosexuals. Furthermore, they argued, the popeâ€™s comments had been broadcast across national borders and thus qualified as an international â€œcrime against humanity.â€
These accusations were dismissed at the time as the work of a narrow interest group. Still, homosexual non-governmental organizations (NGOs) and other advocacy groups continue to lobby for the inclusion of homosexual acts (and legalized same-sex unions) in the UNâ€™s list of universally respected â€œhuman rights.â€ In the event that such â€œrightsâ€ are recognized, the Catholic teaching on homosexual acts becomes a position that contradicts a â€œhuman rightâ€ guaranteed by international law. Suddenly, to teach that marriage is confined to a man and a woman is to â€œincite hatredâ€ against an internationally protected group. Would that be construed as a â€œcrime against humanityâ€?
Another assault against Catholic teachings â€” teachings understood as â€œglobal,â€ because Catholics live and work in most countries of the world â€” could cover the entire range of pro-life issues. Preposterous as it may seem, consider that the UNâ€™s documents employ the formula, â€œWomenâ€™s rights are human rights.â€ Further, the term â€œhealth and reproductive rightsâ€ (code speak for abortion) are part of the UNâ€™s understanding of womenâ€™s rights and the â€œrights of the girl child.â€ If specialized womenâ€™s rights are human rights, could a claim be lodged in the ICC against the pope for teaching the sanctity of life? Could a Catholic nationâ€™s leaders, who uphold the prohibition against abortion, be indicted for â€œcrimes of aggressionâ€ against the â€œhuman rightsâ€ of women?
While technically the ICC is independent of the United Nations, it looks to the UN to bring cases against persons accused of the crimes under international jurisdiction. The Court has no police force or enforcement apparatus, again relying on the UN or stateâ€™s parties to apprehend suspects. Cases are referred to judges by nation states, the UN, and individual ICC prosecutors who may be persuaded to bring a charge based on the investigation of NGOs.
The globalization of â€œhuman rightsâ€ and â€œinternational justiceâ€ defined by NGOs according to a virulently secularized worldview is of grave concern for Catholics.
Israel and the Court
Tzipi Livni, the former Israeli foreign minister, did not travel to South Africa last week, where demands for her arrest have now been withdrawn. Last year the Israeli opposition party leader cancelled her visit to Britain for fear of an arrest warrant obtained by human rights campaigners. In the eyes of some, Livini is responsible for part of the misery in the Gaza Strip. Israel is not a party to the ICC, but Britain is â€” and it can detain a suspect for the court.
A similar caution clipped the wings of Maj. Gen. Yohanan Locker, Benjamin Netanyahuâ€™s military secretary, who declined to join the prime minister during a visit to Britain last month. Lockerâ€™s military decisions in the 2008-2009 Israeli military operation in the Gaza Strip have brought threats from some Arab groups, based on the Goldstone Report. That report, written by South African judge Richard Goldstone, declared that Israel had committed war crimes in the Gaza Strip. Increasingly, high-ranking military personnel are avoiding certain European nations where diplomatic immunity may fail.
Recent overtures to Arab nations by the Coalition for the ICC and other â€œinternational justiceâ€ NGOs raise concerns that the threat of future ICC prosecutions will drive the Israel-Palestine diplomatic engagements. In Doha last month, a regional conference on the ICC was addressed by Dr. Abdul Hamid Al Ahdab, the president of the Arab Association of International Arbitration, who said, â€œI recommend that this conference should send a clear message, inviting the people of the Arab world to petition their respective governments to join the Rome Statute.â€ Among Arab nations, only Jordan has ratified the treaty. â€œOur role in this conference is to shed light on the role of this court in protecting the human rights of the Arab citizen in these troubled times where the Arab world is in dire need of freedom and democracy and there is no protector of freedom except through the justice of international criminal proceedingsâ€¦.â€
On May 24, the emir of Qatar, Sheikh Hamad bin Khalifa Al Thani, urged lawyers and Arab investors to view the Court as a tool to fight â€œcrimes of aggressionâ€ perpetrated against civilians in the Gaza Strip. But the precise content of a â€œcrime of aggressionâ€ eludes jurists and legal professionals. Israel and the Arab nations, among other border disputes, display a classic dilemma: One nationâ€™s claim of aggression is another nationâ€™s claim of defense.
Equally murky in the days of social media is a working definition of â€œcivilian.â€ When massive hostile crowds are assembled via Tweets and converge on a predetermined point with crude weapons, is that a civilian demonstration? What if the organizers are leaders of violent groups, such as Hamas, or opposition parties masquerading as passionate activists? Duping easily swayed youth into quasi-military action characterizes much of todayâ€™s organized unrest.
New calls for a massive protest on June 5 â€” the anniversary date of the Six Day War â€” have been organized by a pro-Palestinian group. Facebook-summoned civilians are urged into paramilitary maneuvers â€” occupying airports, shutting down transportation, agitating authority. Should national authorities respond with force that results in deaths, as is likely, will those victims be victims of the state authority, or of the violent non-state organizers hiding behind social media outlets? If the demonstrators initiated measurable reform along the lines of true human rights and religious freedom, would we view these actions differently in retrospect?
These questions and more raise troubling doubts about the definition of key legal terms such as â€œcivilian,â€ â€œaggression,â€ and â€œjustice.â€ Add to that the growing demand for a new term â€” â€œecocideâ€ (the destruction of the environment) â€” and you find a blueprint for mischief on a planetary scale. Absent solid legal terms and guidelines, the International Criminal Court is vulnerable to manipulation and politicization.