The Economist on International Justice and Where It Stands

The Economist, one of my favorite sources for news and analysis, has a great piece on international justice in this week’s edition, that offers a very much on-the-spot assessment on the status of international criminal justice and the challenges ahead.

Although the article starts by explaining that international criminal justice, whether through the International Criminal Court or through the ad hoc tribunals (ICTY or ICTR), has never been busier than recently, it puts forward several arguments that I think are worth going over.

From The Economist Website

The cost. The first criticism addressed at international criminal justice is its cost. The Economist points out that the ICTY cost nearly $2 billion, the ICTR $1.4 billion. The ICC has an annual budget of around §150 million (for having worked on the ICC budget for 2011 last August, I can confirm that it is around 107 million euros, and that’s it’s not enough.) The weekly writes:

Some complain that it offers even less value for money, having so far yielded only a dozen arrest warrants and indictments, all relating to Africa.

The court’s supporters argue its very existence has huge indirect benefits: signalling to wrongdoers all over the world that their misdeeds risk retribution and that might does not always equal right.

Needless to say, I am one those supporters cited. Justice is always costly, whether domestically or internationally. I stand convinced that on the long-term, as international criminal justice grows in efficiency and legitimacy, it will be well worth the cost. However, that is not a reason not to keep an eye out to make sure that the funds that are allocated to organs of international justice are used in the most efficient manner possible.

Hybrid Tribunals. The Economist also mentions the growing “competition” from hybrid courts, which mix domestic and international elements to try criminals who committed atrocities in a specific country, and are deemed less costly and more respectful of the concerned State’s sovereignty, making them more politically acceptable than international courts.

These hybrid courts have been set up for example in Cambodia and in the East Timor, its most successful illustration being without a doubt the Special Court for Sierra Leone, which is currently wrapping up its work and its last trial against former Liberian dictator Charles Taylor.

These hybrid courts have, as I mentioned above, several advantages, their greatest being, in my opinion, their increased legitimacy in public opinion. As they mix domestic elements with international support (expertise, financial contributions), they render justice as per international standards, seem less intrusive than full-fledged international tribunals or courts and more respectful of sovereignty, therefore are more legitimate to a larger portion of the public, and, lastly, allow for long-term capacity-building (ideally, anyway – the long-term effects of hybrid tribunals over national jurisdictions remains to be seen).

However, for all their advantages, I do not believe they will replace international courts such as the ICC. I do not see them as rivals: only different tools to be applied to different solutions. Not all situations allow for a hybrid system to be set up, whether because the domestic jurisdictions are too weak to start with, or because the conflict spilled over borders and concerns several States (for example, Yugoslavia).

But for the ICC, it does raise an interesting question, and one that I have thought of in the past. I once made the suggestion that the ICC should move in a few years from being just an international court (it is, arguably, already more than that, but that’s for another post) to being a real center of expertise in international criminal justice, that would allow for it to intervene as an international court as it does today when it is necessary, but also to lend support, whether in the form of judges, expertise, or funds, to States that ask it to in order to help them render justice when confronted with mass atrocities.

In a way, I’m arguing in favor of setting up the ICC as a sort of “International Criminal Law IMF” on top of being an international court.

International Criminal Justice is not a miracle solution to all our problems. Several people, myself included, have been very adamant on that point, and I am glad to see The Economist is on the same page:

Yet the idea that the ICC might be called into a war zone in the absence of any other effective response is troubling. In some parts of the Balkans, international justice helped create peace precisely because it was used in combination with other instruments, from peacekeeping to economic aid. Dishing out indictments, but doing nothing much else, could in some cases be worse than useless.

The paragraph speaks for itself, but it is important to insist that the ICC on its own can achieve very little, even with successful trials. As much as justice can be a partner for peace, it cannot, on its own, guarantee that peace. Political processes must also contribute.

It would seem that the international community sometimes forgets about that.

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  1. #1 by Mihai Martoiu Ticu on 28 November 2010 - 07:43

    The link to the original article from the Economist does not work.

    • #2 by Xavier Rauscher on 28 November 2010 - 07:58

      Thanks for picking that up! I corrected it, it works now.

  2. #3 by Mihai Martoiu Ticu on 28 November 2010 - 08:22

    ==The Economist points out that the ICTY cost nearly $2 billion, the ICTR $1.4 billion.==

    According to Joseph Stiglitz and Linda Bilmes the Iraq war will cost three trillion dollar. Bush told us that he did it to remove a tyrant. With that money he could have financed a bunch of international courts, without killing so many people. And he could have used his connections at the U.N. to prosecute more of the criminals. After all Bush said: “I want justice.”

  3. #4 by Mark Kersten on 29 November 2010 - 10:56

    Interesting points Xavier, as always!

    On the issue of costs, I tend to side with you in that the millions of dollars may be little in compared to the promise of international criminal justice. At the same time, when we compare the costs to the number of people actually criminally prosecuted and charged, it does seem to be cause for concern. While I disagree with them, those who are against the ICC and other tribunals will use cost figures as key evidence of international criminal justice not working. It’s something courts must keep in mind. That being said, $150 million is about 506 times *less* than the value of the Nintendo market, so what kind of money are we really talking about?! When I hear $150 million, after all of the bailouts, it seems like very little to pay. Here’s a beautiful graph that puts billions of dollars into perspective (http://www.peripheries.org/wp-content/uploads/2010/08/book_billion.jpg)

    In terms of cost, I will just add that the more worrying element is American dis-engagement. By 2014, if I recall correctly, the US contribution to courts and tribunals will approach zero!

    On hybrid tribunals, I (mostly) agree that they will be no challenge to the ICC. However, I do believe they may have a resurgence in the next decade or so. As states reconsider their allegiance to the ICC (the AU, for example) and other states worry that it has too much reign (China, for example), my expectation is that they will turn to hybrid tribunals. The article is right – international criminal justice has come to far to revert to an international system without it. But that doesn’t mean that states will always buy the ICC brand of international justice. The AU would prefer a hybrid tribunal in Darfur. Interestingly, before the UN Security Council referral to the ICC, so did the US. While it may not happen in Darfur, if Burma/Myanmar is ever to hold investigations and trials (something the US is pushing for) it seems that a hybrid system will be the only politically viable option. Same goes for Sri Lanka although a tribunal seems unlikely there. In other words, where the ICC can’t operate for political or legal-jurisdictional reasons, hybrid tribunals may be viewed as the key alternative, satisfying both political and legal demands.

    On your last point about the ICC-IMF, I would be wary. It’s entering a very important stage of its life, namely when key staff members will be replaced. Let’s see how the ICC deals with its growing pains before expanding its role.

    • #5 by Xavier Rauscher on 29 November 2010 - 12:03

      Thanks for your contribution Mark!

      Regarding the last point of the “ICC-IMF”, just so that it is clear, I’m really thinking of this as a long-term project that should be considered and maybe toyed with in academia (I’d love to lead the charge if I ever get the opportunity). I do not believe, nor wish, that it be possible before at least 15 years, give and take depending on how well the Court is faring.

  4. #6 by Mark Kersten on 30 November 2010 - 14:10

    No sooner did I write about US funding did the US actually throw another $4.5 million into the SCSL (http://edition.cnn.com/2010/WORLD/africa/11/24/us.taylor.war.trial/?hpt=T2). Good thing too. When I visited and spoke with an official from the SCSL, one of the biggest concerns was their budget. At times they weren’t sure if they would/could survive a month down the line. Scary thought given that, if they could not fund themselves, Charles Taylor’s case would have to be thrown out of the courts.

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