The ICC may be here to stay, but more than words are needed to protect our growing system of international law
In September, Kenya’s TV stations replaced their afternoon fare of wall-to-wall soap operas with something new - coverage of pretrial hearings at the international criminal court (ICC), involving six leading Kenyans accused of orchestrating brutal communal violence after the elections of 2007.
Thousands watched as ICC prosecutors in The Netherlands questioned the accused - including a deputy prime minister, the head of the civil service and a former national police chief. Whatever the outcome - and there have surely been some missteps - the ICC cases are providing Kenyans with the fullest public examination yet of what happened. To date, they are the only serious attempt to prosecute those responsible.
From Kenya to Yemen and from Sri Lanka to Syria, “The Hague” has come to inspire hope among victims of violence who increasingly see the ICC as a necessary backstop when national court systems cannot, or will not, address mass atrocities. As a result, despite widespread criticism of its performance, and the fact that many major powers - including China, India, Russia and the United States - have yet to join, the ICC is likely here to stay.
But the same cannot be said for many other arms of the system of international justice that has developed over the past six decades.
We are talking of the assemblage of international courts and quasi-judicial bodies that take standards like the Universal Declaration of Human Rights and regional conventions and charters, and apply them in concrete cases.
Courts in Africa, the Americas and Europe, together with United Nations “treaty bodies,” oversee state conduct. International criminal courts adjudicate individual responsibility for the most serious crimes. Though different in many ways, all these institutions share the common goal of combating impunity for breaches of human rights and/or humanitarian law. Thus, states have supported - or so we were led to believe - not just the idea of the law, but its operation in practice.
But sadly, states are increasingly reneging on their commitments. Under the radar, governments have in recent years aggressively pushed back against institutions whose job it is to deliver justice for victims of gross abuse.
This spring, the Southern African Development Community - a grouping of 15 states - closed down its regional court, following protests by Zimbabwean president Robert Mugabe that its judges were impeding his government’s land reform program by ordering compensation for former landowners.
Mugabe was not alone in thinking courts should do his bidding. A minister of justice from a neighboring country reportedly said, regional courts “serve us, they are for us.” In West Africa, Equatorial Guinea has threatened to pull out of the African Commission on Human and Peoples’ Rights, a regional judicial body that considers rights complaints from throughout the continent, should it deign to hear a human rights case against it’s leader, President Teodoro Obiang.
The human rights treaty bodies of the United Nations - legal experts who consider individual complaints - issue “views” but cannot effectively follow up. As a result, they are often ignored. A recent study by my organisation, the Open Society Justice Initiative, concluded that, of more than 500 cases in which the UN Human Rights Committee has found violations of the International Covenant on Civil and Political Rights, fewer than one fifth have received a satisfactory response. Many states never respond.
Governments don’t like independent judges telling them what they can - and can’t - do. The effort to build on the work of the African Commission by creating a separate African court of human and peoples’ rights, capable of issuing binding judgments, moves slowly; so far only five governments have accepted its jurisdiction over individual complaints.
Even the European court of human rights - which has the longest history and the most substantial financial backing from its membership - struggles to get states to do what it says. By the end of 2009, more than 7,500 decisions were still awaiting implementation. In Russia, petitioners who dare take the government to Strasbourg have been beaten, kidnapped and even killed. Elsewhere, though filing a lawsuit won’t likely result in violence, hostility to European judges abounds.
Four years after the European court outlawed racial segregation, Roma children throughout the Czech Republic are still condemned by the thousands to dead-end, separate schools.
In Britain, prime minister David Cameron recently pronounced himself “physically sick” over a Strasbourg court ruling granting convicted prisoners the right to vote.
Nor are United Nations-backed tribunals immune from government intransigence. The extraordinary chambers in the courts of Cambodia - which is designed to bring to account those most responsible for the crimes of the Khmer Rouge - has been stymied as senior government officials publicly refuse to “allow” certain prosecutions to proceed and withhold the testimony of witnesses Phnom Penh would rather not be heard.
All these courts are places of last resort. They serve as safeguards to - but do not replace - domestic courts, which retain primary responsibility for redressing serious rights violations. And yet, in situations where national courts cannot or will not function, supra-national judges play a critical role in standing up for the rule of law.
In the absence of such institutions, many victims of war crimes from Chechnya to the Congo would have nowhere to turn.
Even in countries where, thankfully, armed conflict is not present, these courts address discrimination against women and minorities, restrictions on speech by journalists and ordinary citizens, and bias or political interference in civil and criminal proceedings. Where domestic courts lack independence and opportunities for peaceful dissent are few, a regional judicial forum may offer the only opportunity to get a fair hearing.
And while far more is needed to ensure state compliance with decisions, the importance of a simple declaration by a duly constituted body that the law has been broken, and a right violated, should not be underestimated. “This shows we were right,” one client proudly told me when informed of a favorable ruling by the European court. “No one can take that away from us.”
The political challenges to the courts are aggravated by a chronic lack of financial resources. The African Commission on Human and Peoples’ Rights, a notoriously under-funded body empowered to adjudicate alleged rights violations on the continent, has not published any judgments in more than a year, in part due to its lack of capacity.
It’s not as if the budgets for these bodies are exorbitant. The African Commission’s 2011 budget is less than $10 million. The cost for the Inter-American Court is on the order of $20 million annually. The annual budget for each of the UN treaty bodies—dealing with torture, the rights of children, the rights of women, and other matters—is between $10 and $20 million. These costs compare favorably with those of some domestic proceedings (the UK’s Bloody Sunday inquiry into a notorious incident of police violence in Northern Ireland exceeded 100 million pounds).
But funding justice makes sense. If justice for victims and commitment to the rule of law are not sufficient reasons, the cost of unremedied abuses to good governance and global development should be. Injustice without remedy can lead to violence and instability. As a recent World Bank report concluded, poverty rates are 20% higher in countries affected by repeated cycles of violence. Lawyers and judges on the front end are less expensive than soldiers and peacekeepers on the back. Even in wealthier countries, over time the failure to redress rights violations corrodes public faith in government.
Last December, UN Secretary General Ban Ki Moon rightly warned that “international justice is under attack in many places,” and urged states to “strengthen our resolve to shut the door on the era of impunity.”
At next year’s high level UN summit on the rule of law, the secretary general should call for the creation of a global fund for justice. Like the Global Fund for HIV/Aids, Malaria and Tuberculosis, the goal would be to secure a stable source of funding to address a problem - in this case, serious breaches of international humanitarian and human rights law - of concern to all humanity. By pooling resources from both private and governmental donors, and developing a resource reservoir to be tapped over several years, the fund would curb the inefficiencies, uncertainties and politicisation of the current, ad hoc system.
And Ban Ki Moon should go further. He should dedicate more UN staff to the challenge of implementing human rights rulings - so that judgments become real. He should designate a special representative to highlight the issue and report annually on states’ record of compliance. And he should convene a discussion at the next general assembly meeting of states’ obligations to provide political support for international and regional judicial institutions.
Our emerging system of global justice is under threat. The secretary general must use more than words to defend it.
