The Politics of International Criminal Law

Article excerpt

There is an unspoken truth about international criminal law as currently practised. It is that certain individuals from certain countries will never find themselves indicted before an international criminal tribunal. "Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must, writes Courtenay Griffiths QC, who acted as the lead counsel for ex-President Charles Taylor of Liberia during his trial by the Special Court for Sierra Leone.

I WAS A NEWCOMER TO INTERNATIONAL CRIMINAL LAW" when I was approached to defend Charles Taylor, the former president of the Republic of Liberia in July 2007-My experiences in this field over the subsequent four years, particularly following the US and NATO operations in Libya, have led me to feel that fundamentally one cannot come to the practice, as opposed to the theory, of international criminal law, with the calculating eyes of a lawyer, but rather with the lessons and wisdom of history very much in mind, particularly the history of European and American colonialism.

In light of that experience, I now submit that the following propositions are true: (a) The West's appeal to the supposed universal principles of international justice is hypocritical, (b) NATO and the US, in the post-Cold War world, have embarked on a project to establish themselves as the global enforcer of international legal norms, (c) This role, as "world policeman", has been adopted to protect what are seen as vital Western interests, particularly in the new scramble for Africa, (d) "Humanitarian intervention" is the fig leaf behind which the US and NATO (aka the "international community"), masks its true intentions and goals, utilising, where necessary, the legitimising function of the UN Security Council.

The enforcement of these legal norms is: (i) mediated by relationships of relative power; (ii) selective in its application; and (iii) in some circumstances unsuited to the historical, social, cultural and other practical realities present in many of the societies in which they are sought to he imposed.

[ILLUSTRATION OMITTED]

[ILLUSTRATION OMITTED]

[ILLUSTRATION OMITTED]

The global policeman

One of the essential and fundamental difficulties which has historically faced the idea of international criminal law is the absence of the machinery to enforce its writ. Lacking its own enforcement mechanism, international tribunals have relied upon cooperating states to execute arrest warrants and bring fugitives to justice.

Furthermore, many states, even if willing to cooperate, often lack the capacity to execute warrants, especially in cases of ongoing conflict or when suspects can cross international borders. Moreover, the African Union has rejected the ICC's arrest warrant for its most high-profile target to date, the Sudanese President Omar al-Bashir, and it would have been interesting to see if the African Union, indebted as it is to Libya's Muammar Al Gathafi, would have applied the same reasoning in his case.

Against the background of this enforcement crisis, the US and NATO have shown an increasing willingness to fill this void. From Yugoslavia, through Iraq and Afghanistan, and now in Libya this military alliance has begun to demonstrate an increasing willingness to wield military force across the globe. At one level, I believe that this is but one consequence of the globalisation of capital.

As we were warned, over a century ago, by a now supposedly discredited philosopher: "[Globalisation] compels all nations, on pain of extinction to adopt the bourgeois mode of production; it compels them to introduce what it calls civilisation [which of course includes human rights] into their midst, to become bourgeois themselves. In one word, it creates a world after its own image."

In other words, to survive everyone must become like the West. …