These justifications of retribution and prevention are paramount in the creation of the ICC. The preamble of the Rome Statute commits member states to determining “to put an end to impunity for the perpetrators of these
possibility is that international law regimes encourage domestic law regimes modeled on them, which function as preventives within countries adopting them.
2See, e.g., Mark Lattimer and Philippe Sands, eds.,Justice for Crimes Against Humanity(Oxford:
Hart Publishing,2003) and Gary J. Bass,Stay the Hand of Vengeance: The Politics of War Crimes Tribunals(Princeton: Princeton University Press,2000).
3There were, of course, also concerns about whether this motivation was carried through in an even-handed way. For example, Bass (2000) notes that liberal states are far more likely to prosecute when their own nationals are the victims; in Nuremberg, the emphasis was on trials for crimes of aggression rather than for the crime of genocide against German citizens. This and many other issues about Nuremberg – such as whether any of the trials violated the maxim
“nulla poena sine lege” – are far too complex to warrant discussion here.
60 Leslie P. Francis and John G. Francis crimes and thus to contribute to the prevention of such crimes,” as well as to
“recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”
The ICC is seen as an institution for ensuring that people who engage in genocide or acts of war are punished fairly for what they have done. The ICC is also seen as preventive – as a way to reduce the likelihood of horrors on the scale of Rwanda, Kosovo, or Darfur. This preventive function is more than individualized deterrence; it is the idea that bringing perpetrators of mass atrocities to justice will contribute to reduced violence or perhaps long-term stability in the societies in which they operated.
A central question about these goals is whether they are compatible in prac- tice, or whether they are at times in tension – whether efforts to bring the guilty to justice might serve as an example to others and thus as a preventive, or merely rekindle the resentments that helped to generate the initial criminal activities. That smoldering resentments may be fanned into flames by trials is a realistic objection to the establishment of international criminal law insti- tutions such as the ICC that has been defended by scholars.4Bass (2000), in response, argues that, despite the realist concerns, war crimes trials are surely better than the vengeance that might occur in their stead.
ICC President Judge Philippe Kirsch, in his report on the first five years of the ICC, expressed optimism that it is functioning as a preventive: “[I]t is precisely because the ICC operates in situations where crimes are ongoing that it is today being credited with having a shorter term impact in preventing crimes than originally anticipated – and not just a long-term deterrent effect as was once thought.”5Whether Judge Kirsch is correct is of course an empirical question, one that may not be answered for decades, if ever.6
Bringing the guilty to justice and preventing atrocities are not sufficient by themselves to justify the creation of aninternationalcriminal law regime, how- ever. The alternative would be prosecuting offenders in domestic courts, either those of the state in which the crimes occurred or those of other states under the assertion of universal jurisdiction.7Nuremberg itself was criticized as a kind
4E.g., Kenneth A. Rodman, “The Peace vs. Justice Debate” (paper presented at the23rd IVR World Congress, Cracow, Poland, August2007), and Kenneth A. Rodman, “Compromising Justice: Why the Bush Administration and the NGOs Are Both Wrong About the ICC,”20(1) Ethics&International Affairs(2006),25–53.
5Available at http://wwwold.icc-cpi.int/library/about/newsletter/16/en_01.html (accessed June 2009).
6See n2supra.
7For a discussion of universal jurisdiction in recent law, see Naomi Roht-Arriaza,The Pinochet Effect: Transnational Justice in the Age of Human Rights(Philadelphia: University of Pennsyl- vania Press,2005).
International Criminal Courts, the Rule of Law, and Prevention of Harm 61 of victor’s justice, in contrast to the establishment of the more recent courts on a genuinely international basis.8 There are several, interrelated reasons that might be offered in favor of the creation of such an international regime.
First is the idea that some crimes are so genuinely international in scope that they can be justly punished only within an international forum. This idea does not map easily onto the crimes within the jurisdiction of the ICC, however.
Genocide and crimes against humanity, as they are defined in the ICC statute, need not be international in scope, and genocide need not even be widespread.
Genocide is defined in terms of the type of act – killing group members, forcibly transferring group members, among other seriously destructive acts – and the intention to destroy the group.9 Crimes against humanity are also defined in terms of predicate acts – murder, torture, and the like – when performed as part of a widespread attack on a civilian population and with knowledge of the attack.10As is widely recognized, since1945, civil wars have resulted in more than20million deaths and more than67million displaced persons.11Violations of the laws of war are more likely to involve more than one nation – although even here the definition does not preclude the possibility of violations committed within the borders of a single nation-state. Only the crime of aggression – not yet defined under the Rome Statute of the ICC and thus not enforced – would by its very definition be international, if any ultimately adopted definition required that the acts be by nations against one another.
Second is the concern that the exercise of universal jurisdiction is likely to be arbitrary if other states step in when the state in which the atrocities occurred fails to act. The issuance of writs of extradition by Spanish and Belgian courts on behalf of citizens of other countries who claimed that they were harmed by the regime formerly headed by autocrats now traveling to a third country captured a good deal of attention as to the value of such judicial interventions.12The Pinochet case is perhaps the best known of these. General Augusto Pinochet became the dictator of Chile after leading a successful coup against the democratically elected government of Salvador Allende.
After 17 years, Pinochet stepped down from power. The Pinochet regime was associated with the killing, disappearance, and torture of thousands of
8The United Nations Security Council established the ICTY by Resolution827(May25,1993) and the ICTR by Resolution955(November8,1994). The ICC was established by international treaty;105countries have now joined the ICC. See http://www.icc-cpi.int/about.html (accessed November2007).
9Statute of Rome, Article6. 10Statute of Rome, Article7.
11Paul Collier and Nicholas Sambanis, eds.,Understanding Civil War: Evidence and Analysis (Washington, DC: World Bank Publications,2005), xiii.
12See Roht-Arriaza.
62 Leslie P. Francis and John G. Francis Chileans. In October of1998, Pinochet went to Britain for medical treatment.
British authorities, acting on a warrant issued by a Spanish judge, detained the general. The Spanish complaint charged Pinochet with genocide, torture, and other crimes. The grounds for issuing the complaint were based not only on connections between the crimes allegedly committed in Chile and residents of the Spanish state, but also on the nature of the crimes themselves. Spain’s legal justification was that certain crimes, if they are considered to be so heinous that they are disruptive to international peace, enable prosecutors of one state to claim universal jurisdiction for crimes committed in another state. If the state where the crime was committed fails to act in such cases, then other states may step in. The House of Lords ultimately ruled in1999that Pinochet had committed extraditable crimes and that his immunity as a former head of state did not extend to protection against these crimes. The Lords held that the United Kingdom, as a signatory to the United Nations (UN) Convention against Torture since1988, had an obligation to act on the warrant if it covered acts committed after the United Kingdom became a signatory. In the end, the British government, partly in response to General Pinochet’s deteriorating health, allowed him to return to Chile. Pinochet’s return was also a response to the request of the Chilean government, however, which had continued to argue that its sovereignty had been violated. This request may have been driven in part by the government’s concern that the Chilean military might intervene if Pinochet were not allowed to return to Chile.
During the Pinochet proceedings, a growing number of complaints were filed both in Belgium and in Spain – the two countries permitting the widest exercise of universal jurisdiction at the time. These complaints against high officials in other countries involved accusations of torture and mass killings.
What became the most controversial part of these complaints was whether a defendant needed to be within the territorial jurisdiction of the court seek- ing to exercise jurisdiction. Roht-Arriaza observes that there has been a decline in such filings as international pressure mounted, especially from the United States, to tighten the rules governing universal jurisdiction, notably in Bel- gium.13
The final, and most important, concern for our purposes is that the states in which genocide or crimes against humanity occurred may be unwilling or unable to bring the perpetrators to justice. In the past15years or so, the concept of a failed state has gained increasing attention. Although it is a concept that is vague at best, it seems to embrace at least some cases of a state’s unwillingness or inability to intervene when mass killings are occurring within its borders,
13Roht-Arriaza, Chapter7.
International Criminal Courts, the Rule of Law, and Prevention of Harm 63 or when the state itself has undertaken policies that appear to promote violent conduct. The Fund for Peace has placed thirty-two states on an alert list of failing states and another ninety-six states on the warning list of states that are at risk of failing.14A “failed” (or perhaps more to this point, politically fragile) state may conclude tactically that it is unwise to seek to prosecute former leaders who may still enjoy some measure of support in the politically fragile state. It is not clear that having a third party try the individual or individuals would resolve fundamental political tensions within the state seeking to regain a measure of coherence. Indeed it may prolong such tensions. Some victims of actions undertaken by a cruel regime no longer in power may conclude that their own newly identified leaders are unwilling or unable to punish the former leaders who caused such pain.
This last argument for the establishment of an international criminal law forum highlights the fact that the trials it conducts may often concern states in circumstances of significant injustice. Justifications for the forum must take these circumstances into account, in defending the courts themselves and in considering how they ought to be structured. Theorizing about what justice requires in circumstances of injustice is “partial compliance” theory, to which we now turn.