Why "International Criminal Justice" is so much fun

HAI (Hate America International, sister org of HBI, Hate Bush/Blair International) loves the ICC (International Criminal Court) and gets a bit OIH (Off Its Hinges) in fronting American (read: Bush, forget: Clinton was the first to actually blow it off) unwillingness to sign on as evidence of “American unilateralism” and foreign policy “arrogance.” They might be surprised to find out what an eminent Judge who actually presided over one UN Tribunal has to say about it all. Basically this–it sucks royally, it’s badly conceived, doomed to be an ineffectual sideshow.

While I was in Sydney in October, The Hon David Hunt, QC, of the Supreme Court of New South Wales gave a talk at the Killara Probus Club. Hunt was a judge on the UN International Criminal Tribunal for the Former Yugoslavia (1998-2003) and the Presiding Judge of the Trial Chamber for a couple of those years. In this capacity he got plenty of press as the man who signed the arrest warrant for one Slobodan Milosevic.

Owing to the fact that someone I am very close to has clerked for Hunt I have the hard copy of his speech at Killara in my hand.

Basic conclusion of the man who (by issuing the warrant for the arrest of the first head of state to stand trial for war crimes) executed what is probably the most momentous act in the history of international criminal justice: The organization of international courts of criminal justice is flawed to the point of farce and probably beyond.

Hunt concedes that he began his tenure with the Tribunal as a “misguidedly optimistic” devotee of the concept of international criminal justice. He left thinking it was a bit of a joke.

A few of the highlights in the talk:

  • Too many of the judges elected by the UN General Assembly reflect the non-legal culture of those who elect them. Many have absolutely no idea of judicial independence, and some–mainly judges who had had no experience of courts prior to their election–have no idea of the need for a judge to approach the task of determining guilt impartially and without pre-existing conclusions in relation to that guilt.”
  • “There are also informal quotas in the election process based on geographical areas–so many from Africa, so many from Asia…None of this produces the best judges or the most efficient tribunal….It does, however, explain why no international tribunal will ever be the apex of the criminal justice system.”
  • In the UN election process Hunt says that “I was introduced to these diplomats, and then sat in a chair whilst my minders wheeled and dealed over my head–‘if you vote for our canidadate in this election we will vote for yours in the Committee for the Rights of Children,’ or some such UN body. Of the forty or so diplomats to whom I spoke, only one asked me a question which was even remotely relevant to my capacity or suitability to be a judge of an international criminal tribunal. Most passed me by with the comment that their country preferred these positions to be ‘shared around.'”
  • Unfortunately, says Hunt, this is also “the way the group of States who are parties to the Rome Statute for the new International Criminal Court work. Those States are largely the same as those in the UN General Assembly, and they even meet together in the UN Headquarters in New York It seems that international bodies are the least suited to administer international criminal law.”

So here we have one of the stars of the international criminal justice system absolutely shredding that system for its failures to date and its congenital defects. Remind me again–isn’t the American decision to not embrace courts of international criminal justice part of every Bush-haters liturgy? One of the favorite exhibits in how arrogant and unilateralist America has become? And yet never have I once, from any of those haters, heard a rationale, an argument, a thought-out justification for why the US should bind itself to this kind of clown show. Their entire argument seems to be based on the notion that because all of the cool states in the “international community” have signed on for this little pretend system of justice that we’re obligated to run off the cliff with them. My thanks to the Hon David Hunt for climbing back up the cliff to tell us what’s going on down there.

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5 thoughts on “Why "International Criminal Justice" is so much fun

  1. Fair points, but is some court better than no court? You are fond of extolling the ends over the means re: Iraq. Cannot the same be said for international law, viz., that having Milosevic on trial is better than not having him on trial?

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  2. Pretty powerful comments, Stuart. I was very interested that Mr. Hunt came away from his experience in the ad hoc tribunal for Yugoslavia with this view, although it is not surprising. One of the reasons that people were/are so enthusiastic for the ICC is because it will not be an ad hoc tribunal but rather a standing court. The continuity of the Court under its authorizing statute (the Rome Statute) is supposed to give the court continuity that can legitimize it in the face of some of the critiques of farce etc.However, the biggest problem still remains: although two judges from the same state cannot be on the court at the same time, judges from states like the Sudan and Iran can be on the court and sit in judgment of individuals brought before the court in politically motivated prosecutions. This is all theoretical, of course, since the current prosecutor is proceeding very carefully with the knowledge that one of the main criticisms is the angle of politically motivated prosecutions. In other words, he is not going to prosecute Bush just because Europeans dislike a religious American cowboy. But the danger exists, and that is what is worrisome.I would be interested to hear your thoughts about a < HREF="http://lawreview.byu.edu/archives/2003/3/FOW.pdf" REL="nofollow">law review comment<> that I have published about the ICC and the inconsistency of the U.S. rejection of the court in light of its use of the Alien Tort Claims Act (ATCA) of 1798 to allow foreign defendants to be sued in U.S. courts for breaches of the “law of nations” (now interpreted to be the exact crimes codified in the Rome Statute) in teh form of harm done to foreign plaintiffs in foreign countries.

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  3. Following on John’s comments….There seem to be problems with the court. But quite apart from the illusory and distracting hate america international rhetoric (i.e. America as a dominant and militarized imperial power must never be criticized), the current administration has consistently balked at consistent application of international law to the US because…it can. That optimizes our economic and military power to our benefit (not unheard of in global politics) while engendering the resentment and bad will of most of the world. The ICC, flawed? Good grounds for legitimate argument. I am no legal scholar but as a citizen believe our behavior under Bush 2 versus Bush 1 or versus Clinton qualitatively different and our international standing considerably degraded, a bad thing for Brand America long term.

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