International Criminal Court: A Study in Cooperation

The implications of international crime have been the topic of international debate among philosophers, historians, and politicians, as well as a subject of personal contemplation by its perpetrators and victims.  However, an accepted legal definition of criminal guidelines have yet to be determined by international law, allowing states to define crime subjectively based on their own laws and interests rather than on an analysis of the situation that encapsulates all viewpoints.  The international threat of terrorism, piracy, and dictatorships has in recent years led to a condition of fear and trepidation among not only the common citizens of all nations, but their leaders.

While terrorism remains the most heinous of all international crimes, others such as economic fraud are making it difficult for international organizations to do anything to prevent it.  Setting up an international criminal court relies on a myriad of different issues, including adhering to current legal, ethical, and political international order, as well as receiving consent and participation by countries, from the highest government leaders to the most impoverished citizens of the world.

When one takes an objective view of the current state of the world, there are many dramatic and lasting problems that need to be addressed.  The world’s financial situation is in turmoil, terrorism and piracy affects all nations and peoples, and the quest to maintain international stability is often at odds with the chaotic events of the day.  Despite the efforts of the United Nations and other various international organizations designed at keeping international order, the overall state of international criminal justice is in a state of disarray.

The Western-dominated international organizations made many efforts to establish a respected criminal court system, but have little authority to enforce it.  Consequently, countries are left to pursue their own justice, no matter how egregious or unfair it may be to the citizens.  This often leads to conflict between the international initiative and the sovereign nation, which can simply disregard the UN’s guidelines under threat of sanctions and harsh words.

For a powerful country like the United States, these threats of punishment and condemnation mean little, and the UN’s general lack of authority over criminal acts can be seen in the dramatic example of the US’s base at Guantanamo Bay.  It has been long known that the US authorities have held suspected terrorists as prisoners at the base, often without following the criminal laws that the country has established for its own citizens.

Beyond this violation of its own criminal laws, the US has also engaged in torture, which is a direct violation of rules established by the Geneva Conventions, which were established to provide law and order in times of war between nations.  The case of Guantanamo illustrates the importance of establishing an international body to distribute criminal justice, because there is really no way to ensure that countries adhere to even their own laws when dealing internationally.

It is tempting to conclude that the current international guidelines as laid out by the UN and other international bodies are simply not reliable, as they lack the authority to enforce any of its directives.  According to Rubin (2001), this illustrates the complete lack of an international governing body and the inability of the UN and various international conventions to act as one: “A government so weak that it cannot run its own trials is unlikely to be strong enough to arrest and extradite or otherwise transfer its former leaders to an international tribunal” (p. 155).  Short of a world government that can enforce its laws, the notion of a transnational criminal court managing universal law appropriate to universal crimes remains unseen.

But the attempts to construct a superstructure of legal supremacy on the accessible system, using the tools of optimistic international law, have attained a degree of apparent success.  The International Criminal Court was founded in July, 2002, but has yet to get the most powerful nations on the earth to join.  Additionally, the only instruments of justice the international community has managed to agree upon up regards the crime of terrorism, of which a number of UN conventions and protocols have been established.  These often describe international crimes such as hijacking of airplanes, hostage taking etc., which are often used in the context of terrorism, but may not qualify as terrorist acts.

The failure of the international community to create a strong international criminal court speaks of the subjectivity of international justice and the weakness of international organizations against the sovereignty of nations.  As an opponent of the ICC, countries like the US, China, and Russia have been able to take criminal matters into their own hands, brutally punishing who they see fit and avoiding persecution for their own crimes such as torture and human rights abuses.  Unless the largest and most powerful countries endorse an international criminal court system, there is little hope that one can be effective.

The common perception of criminal law is that sovereign countries are the best dictators of their own court systems, but with regard to the criminal law, that perception is often more complicated and simply not true.  There are at least two primary inconsistencies between the international legal order and a hypothesized distinctive public legal order.  First, as to legitimate distributions of authority, there is no worldwide law-maker, enforcer, or arbitrator in the international legal order.  International criminal law remains convoluted and international bodies like the UN can pass initiatives and directives, but have little governing power over sovereign nations.

Because of this, it leaves many questions regarding which laws supersede others, and whether criminals that commit crimes in one country are subject to the just of that particular country, their own, or even another country in which they seek refuge.  As pointed out by Hammond (1990), according to Gulick’s foundational work, “a workman subject to orders from several superiors will be confused, inefficient, and irresponsible; a workman subject to orders from but one superior may be methodical, efficient, and responsible” (p. 340).

While Gulick also admitted that rigid adherence to one command is absurd, as can be seen with most things that are rigid and unable to be revised, attempts to use the method of the positive law the law of agreement to create the entire arrangement of authority essential to create a feasible criminal law system cannot achieve something unless states are willing to give way some of their most treasured attributes of sovereignty.

Impoverished countries around the world, while struggling to maintain sovereignty in the face of international pressure, are often the countries most in need of international regulations and courts.  In Afghanistan, where lawlessness and government inaction allowed Al Qaeda to become a serious terrorist threat, the example of countries with little economic means as breeding grounds for international crime becomes all too apparent.  While the rest of the world progresses, humans gain more rights and security, in marginalized countries like Afghanistan, poverty is the true dictator of many of the problems and must be taken into account by any possible international court.

Author Amaro Tomas (2005) attempted to show how poverty is the true reason that many countries are unable to ensure justice, as well as why impoverished citizens need the intervention of an international judicial body to protect their basic rights.  Tomas’ essay, “Reforms that benefit poor people – practical solutions and dilemmas of rights-based approaches to legal and justice reform,” offers readers just what the title suggests and provides a thorough examination of many programs and developments that have occurred over the last fifty years as the international community sought to address poverty through judicial reform.

The immense scope of the issue makes it difficult to truly be comprehensively conclusive, and many issues within the subject remain largely unexplored.  After one reads Tomas’ essay, the reader becomes acutely aware of the many flaws and failures of international efforts to encourage legal and justice reform.  Many of these failures occur for a great variety of reasons according to Tomas, from not having a sufficient amount of knowledge to being fundamentally unable to ensure justice and equality in a subjectively moralistic international community that differs greatly from country to country and class to class.  He cites the failures of many attempts for institutional development as being the techniques used to implement change.

As often the only tools at the disposal of the government, Tomas (2005) criticizes the efforts to create strong international courts which, “resulted in an overemphasis on formal institutions (courts, lawyers, prosecutors, police) and in a tendency to export Western legal models.  Much justice-related development work takes for granted that law and institutions provide opportunity, empowerment and security, through which they promote economic growth and reduce poverty” (Tomas, 2005, p. 172).

Governments seeking justice and legal reform can only seek to do so at the court level, or through the other formal institutions, as that is the foundational obligation of government in the first place.  It is only natural for governments in positions to create greater justice for those underprivileged to attempt to do so through methods that have seen success, such as the Western legal models.

As the calls for international courts as well as the United Nations are creations of a Western political mentality, democratic and representative political systems of the West allow for a great amount of justice within each system, and the efforts made to eradicate injustice in other cultures will naturally be based on their chosen system.  Any creation of a strong international court relies on the ability to take the marginalized societies in impoverished countries and offer them equal rights.  Tomas makes the point that most of the success and failure measured by international courts is obtained through quantitative means and not qualitative.

This in effect may measure physical attributes and create an international court system that allows for more accuracy in projecting outcomes, it fails to take into account things such as greater efficiency and accuracy.  An international court that functions at its highest level may affect the most good, while a similar program within the country itself may be rampant with corruption rendering it virtually useless.  Tomas makes the argument against the one presented in the essay in one statement: “Development approaches to justice reform have traditionally underestimated the complex social processes involved in rule-making and institutional development” (p. 171).

If the approaches to creating an international court have failed to correctly estimate social issues, it is only because humans and their ideas are traditionally hard to control or predict and have a history of oppressing those most in need of justice: “Poor and marginalized groups face significant obstacles to benefiting from formally recognized rights; these obstacles (low income, weak awareness, knowledge and organization, vulnerability to risks and threats, etc.) are a direct consequence of poverty, and an expression of poverty itself” (p. 174).  Tomas goes far in illustrating the most important aim of creating an international court, which is to ensure justice and equality to all citizens of the world.

There can really be no justice without at least a measure of equality, and in countries that fail to provide it, an international court could presumably intercede and ensure justice.  Borrowing significantly from the lines of thought espoused by philosophers that came before him, theorist John Rawls persists in trying to apply a social contract theory to understand the nature of inequality as it applies to society and gender in the international context.  He asks, “How can one ignore such historical facts as...the inequalities between men and women resulting from the absence of provision to make good women’s extra burden in the bearing, raising, and educating children so as to secure their fair equality of opportunity?” (Rawls, 2001, p. 65).

Rawls explanation is that society is mainly concerned with the account of the well-ordered society of justice as fairness.  Two questions exist that make it necessary to understand the inequalities within a well-ordered society, namely what contingencies generate these inequalities and how the least advantaged need to be specified.

To Rawls, justice as fairness focuses on inequalities in citizens’ life-prospect—their prospects over a complete life (as specified by an appropriate index of primary goods)—as these prospects are affected by three kinds of contingencies: (a) their social class of origin: the class into which they are born and develop before the age of reason; (b) their native endowments (as opposed to their realized endowments); and their opportunities to develop these endowments as affected by their social class of origin; (c) their good or ill fortune, or good or bad luck, over the course of life (how they are affected by illness and accident; and say, by periods of involuntary unemployment and regional economic decline).

Even in a well-ordered society, then, our prospects over life are deeply affected by social, natural, and fortuitous contingencies, and by the way the basic structure, by setting up inequalities, uses those contingencies to meet certain social purposes (p. 55).  Applying the simplest form of the difference principle, the least advantaged citizens are those who share with other citizens the basic equal liberties and fair opportunities but have the least income and wealth.

Society uses income and wealth to specify this group; and the particular individuals who belong to it may change from one arrangement of the basic structure to another (p. 65).  By this measure, the inequality of women in regard to men seems arbitrary and a product of the social contract being corrupted by an authority unconcerned with social justice.  The corruption allows such conditions to occur stem from a lack of greater moral authority in society.

While an international court could be instrumental in stamping out corruption in lawless countries, there remain many social issues that make such judicial action impossible.  It is thought by many that the principles of international justice cannot apply to a unit as small as the family, and therefore they cannot secure equal justice for marginalized peoples such as women and children.

  However, the primary subject of justice is the basic structure of society understood as the arrangement of society’s main institutions into a unified system of social cooperation over time.  Since wives are equally citizens with their husbands, they have all the same basic rights and liberties and fair opportunities as their husbands; and this, together with the correct application of the other principles of justice, should suffice to secure their equality and independence.

As Rawls notes, “a long and historic injustice to women is that they have borne, and continue to bear, a disproportionate share of the task of raising, nurturing, and caring for their children.  When they are even further disadvantaged by the law of divorce, this burden makes them highly vulnerable” (2001, p. 166).  To Rawls, while the aim of any potential international court is to provide equal justice to all, men and women alike, the nature of the inequality must be examined and correct.

If the basis for women’s inequality in a country is due to their role as the bearer and main nurturer of children, the division of labor within the family must be equally divided.  However, traditional, religiously-oriented roles have firmly entrenched the line of thought into society that men work, women raise children.  The structure of the family is crucial in understanding the division of labor within society as a whole.

Decided by centuries of religious indoctrination and social mores, the hierarchy within the family can be blamed for the many disparities that women face in public life, such as wage disparities and gender discrimination.  The fact that women make less money than men, even in the most progressive societies, may make it more economically sensible to raise children.

For all intents and purposes, the perceived injustices towards women and a liberal conception of justice may have to allow for some traditional gendered division of labor within families, provided it is fully voluntary and does not result from or lead to injustice.  This is perhaps the most difficult problem facing the international courts, as many people in countries around the world accept their oppression as a fact of life and tradition, with suffering not easily seen.

As Rawls states: “one condition of a decent hierarchical society is that its legal system and social order do not violate human rights.  The procedure of consultation must be arranged to stop all such violations” (Rawls, 1999, p. 75).  The subjectivity of what justice means has been and most likely will continue to be an obstacle to the establishment of an international justice system.  Until all humans want such a system, there can be no truly objective and universally fair system of international justice.

The establishment of international criminal law rests on the establishment of an international governing body that can distribute international justice.  This organization needs to be modeled on former international bodies such as the UN, but it must also be granted authority to enforce its laws over sovereign nations.  The agreement by sovereign nations to join such a body is the only way that international criminals can meet international justice.

There are many political, social, and moral issues that go along with the potential of creating an international court.  Until governments agree to concede at least a level of their sovereignty to an international governing body, and people around the world demand that an organization be created to ensure justice for all, international criminal courts will remain disputed and difficult to create and maintain.

References

Hammond, T.H. (1990). In defense of Luther Gulick's note on the theory of organization.

Public Administration. Vol. 68, pp 143-3.

Rawls, J. (2001). Justice as Fairness: A Restatement. Cambridge: Belknap Press.

Rawls, J. (1999). The Law of Peoples: with ‘The Idea of Public Reason Revisited.’ Cambridge:

Harvard University Press.

Rubin, A. P. (2001). The International Criminal Court: Possibilities for Prosecutorial Abuse.

Law & Contemporary Problems. Vol. 4, No. 1. Retrieved July 19, 2009, from

http://www.law.duke.edu/shell/cite.pl?64+Law+&+Contemp.+Probs.+153+(Winter+2001)+pdf

Tomas, A. (2005).  Reforms that benefit poor people – practical solutions and dilemmas of

rights-based approaches to legal and justice reform. Reinventing development?: translating rights-based approaches from theory into practice. Eds. Paul Gready & Jonathan Ensor. New York: Zed Books.