A Truly Universal Court

What happens to corrupted dictators and leaders when their crimes have been fully exposed? This question has recently been on the minds of Tunisians, Egyptians, Syrians, Yemenis, and Serbs, to name a few.

While dissenters’ first instincts are to simply oust a wrongful leader, dealing with deposed dictators and army leaders is a highly political task. The outcome heavily depends on whether or not other countries will provide leaders with a safe haven, a quick fix compared to fully enacting justice. But it is difficult to discern what constitutes justice in an international political system that has both an unequal distribution of power and no dominant ethical code. The International Criminal Court — the first permanent international body to take on the mandate of universalizing criminal justice — faces many challenges, including overcoming its foundation atop a system that privileges wealthy, mostly Western countries. The ICC, founded on a structure of power that advantages a small number of countries, must expand its mandate to become accountable to a broader constituency of global citizens and must work with, not around, local justice systems.  

The ICC aims to provide an internationally legitimate forum for trying all high-level criminals, especially those who commit “crimes against humanity.” Presumably, "humanity" as a single entity must then be able to determine what offends its core sensibilities. The problem is that 63 years after the Universal Declaration of Human Rights, there is no universal conception of these rights. This lack of ethical unity means humanity’s values, as articulated by the ICC, are only culturally relevant to a fraction of the globe. And the ICC is only accountable to the UN Security Council (UNSC), an elite body dominated by five permanent members with vastly disproportional power relative to the rest of the world. Not only are the permanent members’ concerns privileged, but their own wrongdoings can easily go unnoticed. Thus, the UN and its attending institutions, including the UNSC and ICC, claim to speak for all while only giving a voice to very few. 

The international criminal law movement also attempts to standardize how leaders are judged for their actions, even within the bounds of their sovereign nations. As Ugandan political scientist Mahmood Mamdani wrote, the ICC and the system it is predicated upon complicates notions of citizenry and national sovereignty, disempowering citizens and making them wards of a contested international system of aid and aid-givers. The ICC deemphasizes individual judicial systems and tribunals, many of which, like the gacaca courts in Rwanda, are already prosecuting war criminals by privileging a system whose power is located in Europe rather than in local sociopolitical cultures. Citizens not only have much less stake in and access to the ICC than their individual judicial systems but are less powerful in holding their leaders accountable when the ICC intends to do the job for them. 

Eliminating the ICC will not change the UN system, a forum where many formerly colonized nations (like India and Brazil) are now seeking to demonstrate their growing power. Thus, greater accountability to the entirety of the ICC’s constituents, and not just the Security Council, could improve the ICC’s work. As Habib Nassar writes in the Egyptian newspaper Ahram Online, the Court must make clear to its constituents yearning for accountability for their leaders why it chooses to prosecute some leaders and not others (why Libya's Muammar Gaddafi and not Syria's Bashar al-Assad?). The ICC must communicate and work with those for whom it seeks justice, in terms that are uniquely and locally relevant and meaningful. 

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