How The International Court Of Justice Undercuts--Justice

The current structure of international law, particularly the existence of the ICC and its rules, has an unintended consequence. Rather than serving as a tool for removing war criminals from power, it tends to enhance their power and remove incentives for capitulation or a negotiated exit.
Libya and the Problem with The Hague, July 11, 2011

• Slobodan Milosevic of Yugoslavia was in no hurry to leave power--and then have to face the International Criminal Court in the Hague.
• Radovan Karadzic, Bosnian Serb political leader, stepped down from power with the understanding that he would not be prosecuted--only to find that everyone denied he had never been promised protection.

Is it any wonder Gaddafy is in no hurry to leave?


What might have been at one time a matter of negotiating and plea bargaining has now become, in the guise of international law, a matter of political bureaucracy:

Regardless of what a country’s leader has done, he or she holds political power, and the transfer of that power is inherently a political process. What the ICC has done since 2002 — and the ICTY to an extent before that — is to make the political process moot by making amnesty impossible. It is not clear if any authority exists to offer and honor an amnesty. However, the ICC is a product of the United Nations, and the authority of the United Nations lies in the UNSC. Though there is no clear precedent, there is an implicit assumption that the UNSC would be the entity to offer a negotiated amnesty with a unanimous vote. In other words, the political process is transferred from Libya to the UNSC, where any number of countries might choose to abort the process for their own political ends. So the domestic political process is trumped by The Hague’s legal process, which can only be trumped by the UNSC’s political process. A potentially simple end to a civil war escalates to global politics.

Going one step further, if Gaddafi has nothing to lose in the face of having to the Hague--then those surrounding Gaddafi have nothing to lose either, seeing that their fate at this point, as his accomplices, is inextricably tied with his.

It used to be that nations assumed the authority to negotiate the change of power from dictators over to democracies. Now they have turned that authority over to any court willing to assume jurisdiction--and that only makes matters harder.

The underlying principal of the ICC is that the threat of punishment will deter the dictators--and that is what it does. But instead of deterring the tyrants from abusing power, it deters them from giving it up.

The article concludes:

Oddly, it is the judicial absolutists who regard themselves as committed to humanitarianism.

I suppose one could say that is the failure with the self-proclaimed experts in humanitarian international law: they claim, and perhaps even believe, that their criticisms of Western democracies are based on the most humanitarian of motives--in fact they are dedicated to the most strict of interpretations of international law that undercut the authority, if not the survival, of the Democratic nations that alone take their claims seriously.

Hat tip:  Yaacov Lozowick

Technorati Tag: International Law and Libya and Gaddafi.