The loaded scales of ‘international justice’

Trials and tribulations at the International Criminal Court.

David Chandler

Topics Politics

On 23 June the International Criminal Court (ICC) received two major fillips. First, the USA withdrew a proposed UN Security Council resolution to further extend its rolling 12-month exemption of US personnel from overseas prosecution. Secondly, the ICC opened its first investigation, into war crimes in the Democratic Republic of Congo.

These two developments have been widely greeted as a step forward for international justice. William Pace, head of the Coalition for an International Criminal Court, which represents more than 1000 organizations supporting the tribunal, called the US decision ‘a victory for international justice’ (1). ‘The opening of the first investigation of the ICC is a major step forward for international justice’, said the ICC chief prosecutor Luis Moreno-Ocampo (2).

The UN Security Council’s refusal to support the USA’s proposed draft resolution 1422, for renewing the exemption from prosecution of personnel in UN-established or authorised missions from states not parties to the ICC, was not surprising. In the wake of the Abu Ghraib scandal, the UN secretary-general Kofi Annan had spoken out against the US resolution, and most of the states on the Security Council threatened to abstain, using the opportunity to condemn US mistreatment of prisoners in Iraq and Afghanistan.

It is worth asking why the USA gave in to pressure to withdraw its motion. This comes at a time when the USA is keen to gain the UN’s approval for its handling of events in Iraq, and has been put on the defensive over cases of prisoner abuse. Far from trying to force its ICC motion through, it is telling that America avoided provoking conflict over the issue – suggesting that it isn’t quite the unilateralist cowboy it is often cracked up to be.

In practical terms, however, the withdrawal of the proposed extension will have little impact on the USA. The US decision does not make American troops in Iraq more open to prosecution, since neither Iraq nor the USA are members of the ICC. In addition to seeking UN exemptions, Washington has signed bilateral agreements with 90 countries that bar any prosecution of American officials by the court for alleged war crimes committed on their territory. With 94 countries having accepted the jurisdiction of the ICC, this leaves little possibility of US personnel coming before the court.

In fact, the debate over the USA’s relation to the ICC has clouded the discussion over the ‘justice’ dispensed by the court, which was never actually designed to prosecute the service personnel of the major Western powers. As chief prosecutor Moreno-Ocampo says, the ICC’s independence from the major Western powers is severely limited by the fact that, unlike a national prosecution service, ‘we have no government, no police’ (3). When the ICC is reliant on the good will and resources of Western governments, there is little possibility that it can dispense ‘international justice’.

For this reason, the major contravention of international law by Western states in recent years – the launching of aggressive wars – are off the ICC’s agenda. As the Office of the Prosecutor stated in response to the US-led war against Iraq in 2003: ‘The court cannot exercise jurisdiction over alleged crimes of aggression.’ The reason given for this was that the crime of aggression has not been defined, and there are no plans to work on this area until at least 2009 (4). While Western governments can launch illegal wars with impunity, the ICC seeks to concern itself with conflicts among and within smaller states.

After saying that the ICC ‘had no jurisdiction’ over areas of international concern where Western powers had interests, in July 2003 the Office of the Prosecutor selected the north-eastern Ituri region of the Democratic Republic of Congo (DRC) to assert its authority, and announced the launch of a preliminary investigation into the ongoing fighting in the region. Launching a formal investigation was made easier in March 2004 when Congo President Joseph Kabila asked for a probe into possible war crimes, genocide and crimes against humanity. The official investigation will cover crimes committed throughout DRC since 1 July 2002, when the ICC was formally established. The investigation will therefore cover the period mainly after the formal withdrawal of Ugandan and Rwandan forces, which had invaded the country in 1998 with the aim of toppling President Laurent Kabila.

The investigation in the Congo has little to do with ‘international justice’ and more to do with face-saving on the part of the ICC. The court has managed to pressurise the Congolese government to cooperate in a limited investigation, which will essentially strengthen Kabila’s hand against the former rebel forces in the preparations for next year’s elections.

David Chandler is senior lecturer in international relations at the Centre for the Study of Democracy, University of Westminster. He is the author of:

  • Constructing Global Civil Society: Morality and Power in International Relations (Palgrave Macmillan, 2004)
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  • From Kosovo to Kabul: Human Rights and International Intervention (Pluto Press, 2002)
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  • Bosnia: Faking Democracy After Dayton (Pluto Press, 2000)
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  • And he is the editor of:

    • Protecting the Bosnian Peace: Lessons from a Decade of Nation Building (Routledge, 2004)
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    • Rethinking Human Rights: Critical Approaches to International Politics (Palgrave Macmillan, 2002)
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    (1) US bid for int’l court immunity KO’d, William M Reilly, Washington Times, 23 June 2004

    (2) International Criminal Court to probe Congo crimes, CNN, 24 June 2004

    (3) US could join ICC in ‘as soon as 20 years’, Sanjay Suri, Inter Press Service News Agency, 24 June 2004

    (4) Communications Received by the Office of the Prosecutor of the ICC (.pdf 219 KB), International Criminal Court, 16 July 2003

    To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

    Topics Politics


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