A scene toward the end of the documentary film Calling the Ghosts shows two Muslim women from Bosnia, survivors of the Serbian concentration camp of Omarska, looking through a rack of postcards. They have come to The Hague to testify about their experiences at the war crimes tribunal for the former Yugoslavia. The voiceover is one of the women reading what they wrote to their former Serbian colleagues in the now Muslim-free city of Prijedor: “Greetings from The Hague. Hope to see you here soon.” Those two short sentences speak volumes about modern ethnic hatred, genocidal violence and war crimes such as rape and torture, as well as the survivor spirit and demands for justice.

Criminal prosecution of individuals responsible for grave human rights violations is a recent development in the history of human rights. The first phase, in the decades after World War II, “internationalized” human rights through the creation of new institutions like the United Nations and its affiliated organs, and the promulgation of new international laws and conventions. In the second phase, spanning the last 30 years, human rights became “globalized” through the mushrooming of organizations around the world and the strengthening of transnational and international networks that facilitated the production, dissemination and utilization of information. Today we are entering a third phase, marked by an increasing propensity to incorporate human rights standards into national legal regimes, and to promote responsibility and accountability through “truth and reconciliation” processes that take human rights as the moral and political standards for judging the past. Moreover, we are seeing the rise of a more explicitly legalistic approach to enforcement, as exemplified by the tribunals for Rwanda and the former Yugoslavia. Support for an International Criminal Court (ICC) is a feature of this trend.

Proponents argue that a permanent court would move the enforcement of human rights to a new level of effectiveness since the bark of (select) international laws would now be coupled with the (selective) bite of enforcement through prosecution. These arguments mirror those for criminal courts in general: Enforcement has a deterrent effect, and punishing perpetrators is essential to justice.

Deterrence and punishment are righteous aspirations. However, an ICC is not the best means to these ends. The creation of a new permanent institution with global jurisdiction would undermine the effective directionality of human rights, which seeks to make international standards and prohibitions applicable and enforceable locally. In my opinion, the ICC’s “complementarity” with national legal systems would not adequately redress the “upward” tendency its creation would inevitably inspire.

Contemplating the creation of an ICC raises some questions about what a criminal court system is and how it should operate in order to satisfy its principal purpose: meting out justice. First, courts are instruments of government. In the absence of a “world government,” enforcement of international human rights has been irregular, since it largely hinges on the actions of states. A permanent court might provide for more consistent enforcement, but no one is suggesting that this would challenge the overwhelming state centrism of the international order. Under these circumstances, such a court has a very limited capacity to function legally. An ICC would remain, even in the best-case scenario, the instrument of international political relations rather than legalism.

Second, criminal courts serve to legitimize as well as affect the social order in which they operate. Notwithstanding diverse globalizing trends, there is no “international social order.” An ICC, operating far removed from “society,” has limited capacity to promote the educational (i.e., deterrent) value of legal action from the contexts in which people live (and die). One of the recognized shortcomings of the ad hoc International Criminal Tribunal for the former Yugoslavia is its distance — both geographical and political — from the site of violations.

On the specific question of justice, if the ICC treaty provides automatic jurisdiction only for genocide cases, this would entrench a false distinction between genocide and other types of crimes against humanity. Even if it does not, however, the legal vagueness of the latter would make prosecution comparatively much more difficult, thereby producing a similar effect. Furthermore, according to rule of law principles, legal justice requires that laws be universally applied. For a court system whose jurisdiction is global, any inability to enforce universal standards would compromise the legitimacy of the court itself. Under any number of circumstances that are not difficult to imagine, if the long arm of the ICC should fail to reach far enough to apprehend suspected perpetrators, would this be justice? And if it could not, would the court deter future crimes?

Many of these concerns are shared by proponents of the ICC, as reflected in Joe Stork’s essay. If the treaty to create an ICC incorporates reservations and restrictions to satisfy the demands of powerful states, today’s proponents might find themselves protesting the terms under which an ICC is established. It is to this possibility that I offer some constructive suggestions for alternative courses of legal action to pursue justice, punish perpetrators of grave human rights abuses and enhance the enforcement of international laws. Indeed, these suggestions would rely upon and empower the advocates of human rights around the world.

Enhancing the “extradite or try” option in international law.

Laws and conventions outlawing grave human rights violations have international jurisdictional force, which suggests that violators could be prosecuted anywhere. Transforming this from principle to practice could turn geography into a resource for human rights. States committed to prosecuting violators could do so within their jurisdictions, thereby robbing perpetrators of the benefits of sanctuary. This approach to prosecution would require more prodigious human rights monitoring, investigating and reporting on violations around the world, greater efforts to make information available, and enhanced advocacy to spur empowered actors (in this case state governments) to take appropriate actions, i.e., extradite or try.

Expanding and improving on the use of ad hoc tribunals under the auspices of regional (rather than international) legal systems.

Enhancing regional legal empowerment is a viable and valuable alternative to a distant and top-down international legal system. It would allow for a greater diffusion of responsibility to enforce human rights standards, and courts run by “local” or “regional” actors would stand a greater chance of retaining an aura of legitimacy than an ICC. The use of ad hoc tribunals with no fixed mandate would also open the possibility of broadening the scope of enforcement to include other laws and conventions (such as those pertaining to racial discrimination and discrimination against women).

Promoting class action suits on behalf of victims in countries with suitably accommodating legal systems.

This would extend to the prospect of legal action beyond those directly responsible for genocide, war crimes and crimes against humanity to include the cast range of “accomplices” whose actions (or inactions) made those violations possible. It would empower individual and collective victims in the international order, and it would put into legal play the question of “foreseeable results” of various political and economic activities undertaken by governments and corporations. “Transnationalizing” the prospects of legal action conceivable could have a radical and constraining effect on the lethal availability of genocidal technology and support.

Law has the capacity to serve the weak as well as the strong. If the question is how to put international law to work on behalf of the people who need it most, the answer is to devise strategies for making these laws “theirs” in principle and in practice. Diffusing (rather than centralizing) the options for legal action could initiate a new chapter in efforts to make human rights standards enforceable. Viva la litigation!

Joe Stork Responds to Lisa Hajjar

Lisa Hajjar raises pertinent questions about the operation of an International Criminal Court, and on many of her points I agree. If the final treaty produces a court that is subordinate to the most powerful states, it will not be a court worth fighting for. We also agree that the treaty broadens the inherent jurisdiction of the court beyond genocide to include war crimes and crimes against humanity, including gender-targeted crimes. At the same time, even an independent ICC will operate in the political world as we know it, and will not in and of itself redress existing imbalances of power. An ICC will provide a mechanism that, if properly structured and implemented, will help make enforcement of international humanitarian and human rights law less irregular and inconsistent than it is now. The fact that it will not fully and singlehandedly achieve that goal is not a good reason to oppose it.

Hajjar writes that creation of an ICC is not the “best” means to our ends, as if we must choose between this or an alternative. Her suggestions — enhancing extradition policies, expanded regional tribunals and facilitating international class action suits — are excellent, and should be pursued, but they in no way preclude or make redundant the need for an ICC which should complement, not hinder, these efforts.

Hajjar’s basic objection appears to be that an ICC would not operate “in and on society” and would “undermine the effective directionality of human rights.” That is a very narrow and not very dynamic way of seeing this court. One major function is to provide an impetus for national judicial systems to meet their responsibility to investigate and prosecute particularly heinous crimes of mass murder and abuse. In other words, its effect will not be unidirectional, or “centralizing.” A credible ICC will make it all the more feasible to advocate and construct more locally operating remedies such as these. It is through multiple efforts, including formation of an effective ICC, that an “international social order” becomes more meaningful, in this case by promoting accountability (as well as deterrence).

Ad hoc tribunals are necessarily much more politicized than a permanent court. It is states and organizations made up of states that will decide which tribunal to set up, when, with what jurisdiction, and for what purpose. The record of regional bodies on this score, moreover, is mixed and optimism for such bodies is not yet warranted.

How to cite this article:

Lisa Hajjar "Alternatives to an International Criminal Court," Middle East Report 207 (Summer 1998).

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