Two Steps Forward, One Step Back
In his provocative book, After Genocide: Bringing the Devil to Justice, Adam Smith makes a slightly barbed remark to the effect that international justice is a form of globalization, and the ICC is an international institution similar in some respects to the World Bank, but that most advocates of international justice find themselves on the other side of the debates about economic globalization (p. 40). It’s a throwaway remark that would have warranted closer consideration. Justice is, inter alia, a global public good, and the growing pains of economic globalization provide some valuable parallels and lessons for the globalization of criminal justice.
Smith’s book is an excoriating attack on international criminal tribunals for all manner of failings. According to Smith, they have become distant from the people for whom they are supposed to deliver justice, and they have sacrificed the real needs of individual victims and conflict-riven societies on the altar of a theology of international justice fundamentalism. He argues that ordinary citizens and judicial systems alike in the affected countries are left behind or trampled underfoot in a form of judicial imperialism. In many cases, Smith contends, international justice has exacerbated the problems it is supposed to fix, by allowing criminals to don the mantle of martyrs to foreign conspiracy, and mobilize extremist nationalist constituencies that are viscerally antithetical to any form of justice. Smith indicates clearly that he thinks the problems are not just “growing pains” but are “intrinsic to the international imposition of criminal justice” (p. 196).
Smith writes with the angry passion of a whistleblower, determined to wash quite a large bag of dirty linen in public. There’s a lot of dirt to come out but it is overall a mixed bag. Smith lands many solid blows on the topics of the shortcomings of international justice and his book will be uncomfortable reading for the many ardent supporters of the ICC and the ad hoc tribunals. Many of his criticisms are perhaps less new than he contends. Internal debates within these institutions have involved discussions, in private meetings or in internal reports, on many of the issues he raises.
With few exceptions, the lawyers haven’t organized a good response to these criticisms other than repeating the mantra of universal human rights ad infinitum. But sociologists have done considerably better, at least in providing us with the scaffolding for building a cogent defense. One example is Kathryn Sikkink (who wrote on this blog a year ago) and who has made seminal contributions on the question of how international human rights norms can influence domestic practices in nations formerly notable for consistent violations.
In this context, comparison with economic globalization might be more useful than Smith realizes. Everywhere one looks, especially in sub-Saharan Africa, the downsides of globalization are evident. Cotton farmers in West Africa are thrown out of business because they cannot compete with subsidized production; cattle herders are left destitute because of cheap imports of powdered milk from the European Union; Southern African textile factories are shut down overnight when the market is flooded with Chinese clothing. These are real economic disasters for millions of people, but the bigger picture is that globalization has brought untold benefits to hundreds of millions of people, allowing them to lift themselves out of poverty. The policy lesson is that no country can develop economically by shutting itself off from the global market.
The parallel with international or globalized justice is inexact but nonetheless useful, and perhaps suggests that we are dealing with both “growing” and “intrinsic problems’, but rather more of the former than the latter.
The development of international justice as a normative standard has implications well beyond the actual trials themselves. As recently as a decade ago, it was the norm to automatically provide blanket amnesties for every wrongdoer, as part of peace agreements. Now, the default option is for some sort of mechanism of transitional justice to be instituted. International organizations that used to resist any demands for accountability are internalizing the principle. For example, the African Union Peace and Security Council resolutions on the question of the ICC in Sudan, preface their rejection of the ICC arrest warrant against President Bashir with strong statements about the need to end impunity and bring perpetrators to account.
Thomas Risse and Kathryn Sikkink(1) provide a five-stage model for how global norms can become domesticated into national practice. In stage one, a repressive government prohibits information about human rights violations from reaching the outside world. In stage two, human rights organizations provide information and the government denies the abuse, meanwhile attacking the credibility of the organizations and activists. In stage three, the government makes tactical concessions, seeking to “buy off” its critics. But in doing so it may find itself “entrapped” in a process of opening up, compelled to engage in a moral dialogue with its critics, with results it cannot control. Stage four is “prescriptive status” in which governments formally accept human rights norms, signing up to international conventions, adopting human rights provisions into domestic law, and setting up formal institutions such as human rights commissions. The actual commitment to enforcing these promises may fall short, but there is a serious dialogue about implementing commitments.
In the last fifteen years, most formerly abusive governments have moved into stages three and four. In stage five, states engage in “rule-consistent behavior”, complying with international human rights norms and enforcing them through the courts. This is a genuine achievement for international human rights, including international criminal tribunals, which should not be so readily cast aside.
Smith makes the interesting observation that the Rome Statute was adopted in the heyday of enthusiasm for international criminal justice (what he calls “Hague mania”), before the drawbacks of the Yugoslav and Rwanda tribunals became clear. If the text of the treaty were before us today, he implies, the negotiators would have come up with a different model, probably much closer to the hybrid tribunals adopted in Timor L’Este, Sierre Leone or Cambodia, or the hybridization of a domestic legal system adopted for the Hisséne Habré trial in Senegal. However, Smith does not examine how the Rome Statute contains sufficient flexibility to move in the hybrid direction itself, which it may yet do under a future Prosecutor. Indeed, one of the intentions of the drafters of the Rome Statute, laid down in the complementarity provisions, was precisely in order to stimulate national judicial proceedings, with the ICC as a court of last resort when all else fails.
Secular progress can and does occur, and international justice is part of it. No doubt there are mistakes and even excesses in the process, but there are also solid achievements, direct and indirect. The principle of accounting for human rights violations and international crimes is now embedded in domestic jurisdictions around the world, notably in Africa, and this would not have happened, at least not so quickly, without international tribunals. Domestic and international justice are linked in more complex ways than Smith admits. International justice may be two steps forward, one step back””but that’s still a step forward from where we were.
(1) Risse, Thomas, and Kathryn Sikkink, 1999, “The socialization of international human rights norms into domestic practices: Introduction,” in Thomas Risse, Stephen Ropp and Kathryn Sikkink (eds.) The Power of Human Rights: International Norms and Domestic Change, Cambridge University Press.