LITMIR.BIZ

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through a global political process, it has ties to the most power global political body—the UN Security Council—and it touches on the most sensitive global political issues. It threatens presidents and prime ministers, as evidenced by the arrest warrants for President Omar al Bashir of Sudan and Moammar Qaddafi of Libya. It is embedded within contemporary conflict, as those who are engaging in violent conflict and carrying out some of the world’s worst atrocities are subject to being arrested and sent to The Hague, and it has been invoked as a conflict management tool. One hope of its supporters is that it will deter leaders and individuals from initiating conflict and engaging in atrocities in the first place, although that hope seems far off. Although it is impossible to prove the negative, there is only minimal evidence that it has deterred anybody from doing unspeakable things. It will likely require a concerted record of numerous successful prosecutions before that hope might be realized. And, it is at the core of accusations of neocolonialism⁵⁸ since all of the investigations and active cases are in the developing world while the most powerful countries in the world are exempted from its reach.

      Indeed, all of the active cases the ICC is prosecuting are in Africa.⁵⁹ Prosecutions are ongoing in cases related to Uganda, the Democratic Republic of the Congo (DRC), the Central African Republic (CAR), Darfur, Kenya, and Côte d’Ivoire. The Prosecutor is also investigating the situation in Mali. Other potential situations for investigation include Afghanistan, Georgia, Colombia, Guinea, Honduras, Korea, and Nigeria, although they are only at the preliminary stages. The ICC also considered the situation in Palestine, deciding that it lacked jurisdiction, since it was unclear whether or not Palestine constituted a state⁶⁰—although this might change now that Palestine has been admitted to the UN as a nonmember observer state.

      The International Criminal Justice Problematique

      The world thus has a functioning, if still under development, institution to try individuals accused of committing the worst atrocities. Criminal justice is, by its very nature, retrospective, but the ICC is embedded within contemporary global political realities and has been called to perform a prospective function—deterrence. It has also been deployed in the midst of conflict to perform a conflict management role—induce leaders to stop their atrocities or force them to step down. All three of these functions are highly problematic. It cannot deter until there is enough evidence to convince potential war criminals that there is a high likelihood that they will eventually get caught and be taken to The Hague to stand trial. We are not anywhere near there yet; indeed, the sixteen years it took to capture Ratko Mladic is unlikely to give an Omar al Bashir or a Moammar Qaddafi pause. It also assumes that such individuals are able to make rational calculations with regard to the possible consequences of their actions, which in many cases is in serious doubt.

      The conflict management role is problematic at least partially because issuing an arrest warrant for a president or general in the midst of an ongoing conflict is just as likely to create an incentive to continue fighting as it is to induce them to stop. If one sees only the possibility of being arrested once a conflict ends, it is not likely that a president or general would just give up and end the conflict. The Security Council might use an ICC arrest warrant as a bargaining chip—as Radovan Karadzic argued U.S. envoy Richard Holbrooke did⁶¹—but even if this was done in good faith by the Security Council, it does not control the ICC. It can temporarily suspend proceedings for up to a year—indefinitely renewable—but it cannot permanently end an investigation or withdraw an arrest warrant—only the ICC can do that. And given the varying global political agendas of members of the Security Council, there is no guarantee that it would vote to suspend proceedings—a leader would do well not to base his or her future on the vagaries of global political will and expediency. Further, declaring an individual a war criminal and then withdrawing an arrest warrant does little to further the global human rights project embodied in the ICC. It would undermine the potential deterrent aspect of the ICC and signal that the ICC was nothing more than a global political tool of the great powers with little to do with protecting human rights.

      Finally, its retrospective nature, while laudable and a significant incarnation of the global human rights project, is rendered problematic as it may interfere with domestic peace efforts. Such concerns arose in Uganda where the government instituted an amnesty law to induce members of the Lord’s Resistance Army (LRA) to leave the LRA and be reintegrated into society.

      International criminal justice, as embodied in the ICC and other institutions, is the most legalized and legally recognized of the three responsibilities, which makes it in some ways the safest legally—and morally—to invoke. Yet, since international law itself is a highly political realm, it should come as no surprise that the ICC can become highly embedded within global and domestic political processes, raising questions about how and when the ICC is—and should be—invoked. The failure of the UN Security Council to refer the situation in Syria to the ICC, even in the face of clear and ongoing atrocities, puts these questions in high relief.

       The Responsibility to Protect

      The most recently recognized responsibility, but the one that also provides the conceptual justification for the prior responsibilities qua responsibilities, is firmly embedded within, but also challenges, the contemporary state system. By labeling it a responsibility, the international community recognizes changes in the relationship between state sovereignty and human rights while also accepting the necessity of international action at times. However, R2P comes with many caveats, and its status as international law is less than certain. It is frequently equated with humanitarian intervention,⁶² a concept with uncertain legal qualities frequently deployed by critics to imply neocolonialism. The concept as originally put forth under its current name goes far beyond humanitarian intervention. Yet, when discussing the types of situations of concern in this book, it is precisely the interventionist aspects that are most salient and most unique from a normative perspective. To understand the current conception(s) of R2P, however, a very brief overview of the practice of humanitarian intervention is in order to illustrate the changing debates and status within international relations.

      The Practice of Humanitarian Intervention

      Most histories of the practice of humanitarian intervention begin in the nineteenth century.⁶³ During this period there were a number of military interventions in Europe, justifications for which included “proto-humanitarian” arguments. The defining features of the discourse and practice of humanitarian intervention during this period were twofold. First, as today, not all situations that might have demanded a robust response actually received one. Second, the class of people deemed worthy of being rescued was significantly circumscribed. While the European powers intervened to save noncitizens, they were noncitizens of a particular type. One needed to be Christian—and indeed the right kind of Christian—to be worthy of saving. This contrasts markedly with today’s universalistic conceptions of human rights and humanity, and arguments and actions to protect noncitizens around the world, although an expanded conception of humanity is no guarantee of action.

      Although this expanded humanity and human rights concern was evident from the end of World War II, the Cold War and decolonization prevented any type of intervention on humanitarian grounds—or certainly the use of humanitarian arguments to justify intervention. The Cold War paralyzed the newly created United Nations and created concerns that military adventures might lead to superpower confrontation. Decolonization entrenched notions of absolute sovereignty and revitalized the doctrine of nonintervention. There were three interventions in the 1970s that many point to as possible humanitarian interventions, even though humanitarian justifications were not ultimately deployed in any of these situations. India intervened in East Pakistan in 1971 in response to massacres by the Pakistani military; Tanzania intervened in Uganda in 1979 to overthrow Idi Amin; and Vietnam pushed the Khmer Rouge from power in Cambodia in 1979. All three cases were relatively limited ventures (certainly from the perspective of the interventions that were to come) and were justified with nonhumanitarian arguments—and indeed in all three cases there were traditional regional strategic interests involved. They all also had the effect of saving lives—and getting rid of regimes that engaged in widespread gross human rights violations.⁶⁴ Yet the international community was not ready to accept humanitarian arguments. The doctrine of nonintervention would have prevented such

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