The End of Impunity: Two Pathways to Justice

No Mubarak Egypt Uprising Photo Feb 2011 by Takver (Flikr)In Egypt this past summer, former president Hosni Mubarak and former interior minister Habib El-Adly were sentenced to life in prison for complicity in the murder and attempted murder of protesters in the 2011 uprising that removed Mubarak from power. In Liberia, Charles Taylor was convicted of war crimes and sentenced to 50 years for aiding Sierra Leonean rebels who raped, maimed, and murdered tens of thousands of civilians (Harper’s Weekly Review June 4th, 2012). In March 2012, the International Criminal Court delivered a guilty verdict against Thomas Lubanga Dyilo, who was found guilty of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities in the Democratic Republic of the Congo between September 2002 and August 2003. At present, the ICC has publicly indicted 30 people, and has proceedings ongoing against 24, including against the top five members of the Lord’s Resistance Army in Uganda, including Joseph Kony, for similar crimes.World1

With human rights increasingly in the news, and the activities of multilateral agencies like the ICC at the forefront, it seems that two distinct pathways to criminal justice for egregious violators of human rights are now becoming evident. In the first pathway, former heads of state are held to account using the bodies of law of the country they once led. Under this pathway, the process can yield successes (as in the case of Mubarak) but it also has flaws. Judges appointed by the former leader may be reluctant to apply the rule of law, or, alternatively, too severe outcomes can actually undermine the rule of law by placing the whole process under suspicion. This is especially true if the society has a history of sectarian violence. In the latter case, for example, I’m thinking of the sham trial of Saddam Hussein following the US invasion of Iraq, which probably set back the rule of law in that country by decades and opened the door to a vicious sectarian war. It should be noted that until recently, with the establishment of the ICC as a legal body, national prosecution of such cases was, essentially, the only available route to justice.

The ICC was established to fill a gap in international human rights law that addressed some of these flaws. The gap lay between the politics of sovereignty and the universal laws of human rights. But the ICC was to be derivative of sovereign law, a supplement, and decidedly not a force for subversion or displacement of national bodies of law. Far from it. International law steps in where national law and politics fail, but fail first they must. It is through this pattern of repeated failure that the full justification and realization of the importance of the ICC to the system of sovereign law will emerge. For this reason, it is entirely wrong to criticize the ICC as toothless or helpless in the face of national power. It also entirely wrong to criticize the ICC for overstepping sovereignty The body of law upon which the ICC draws is the logical and reasonable outgrowth of sovereign law itself. For this reason, every case brought to justice by the ICC strengthens, not weakens, the force of sovereign law to protect human rights and bring violators to justice. Even though there are two pathways to justice, they are heading in the same direction, towards a world where violators will have nowhere to hide with impunity.

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