by Christopher Gevers
In an op-ed in the New York Times last week Aryeh Neier called for an "Arab War-Crimes Court for Syria". No doubt international criminal justice has an important role to play in addressing the atrocities that bedevil Syria (and perhaps deterring future atrocities). My concern with such a call is its unhappy and coincidental happenstance alongside ongoing attempts by the African Union to establish an International Criminal Chamber within the African Court of Human and Peoples' Rights - attempts which are less laudable, being motivated (in part) by powerful interests within the AU to snub the work of the International Criminal Court. Both hint at a new kind of relativism emerging within the international criminal justice project. I would argue that, no matter how value-driven (in the case of Neier) or politically-expedient (in the case of the AU), we should be wary of such relativism. Aside from the fragmentation of forums and law, and duplication of increasingly finite resources, there is more fundamental danger to this kind of ICJ relativism: it gives up the pretense of universality.
I say pretense in the hope of avoiding the dead-end (and now passe) universalism/relativism vortex of human rights. As I've noted previously, not much work has been done on the philosophical basis of international criminal justice (and I do not wish to even attempt to do so here), suffice it to say that if one accepts Charles Taylor's minimalist 'overlapping (unforced) consensus' thesis - where "we
would agree on [certain] norms while disagreeing on why they were the right
norms, and we would be content to live in this consensus, undisturbed
by the differences of profound underlying belief" - core international crimes would undoubtedly fall therein.
At a minimum, lets agree that the universalist pretense has some rhetorical value. This is especially true for those stuck 'in the trenches' of ICJ. For those defending ICJ's skewered application, the shield of universality is essential. For example, in a recent interview prominent Botswanan human rights activist Alice Mogwe was asked the perennial 'Is the ICC targeting Africa?' question. Her response:
'I believe that a human rights violation is a human rights violation
wherever it happens in the world. ... While not forgetting the historical legacy of colonialism, North
power relations, the interest of the North in relation to resources in
the South, I think it is very important to focus on the fact the
questions that needs to be asked are: Are violations occurring? Are
people dying? If the answer is yes, then some of sort attention needs to
be paid to it.'
The idea that the norms of international criminal justice are universal, even if its application is institutionally skewered at times, is a simple but crucial riposte to such questions. Admittedly, this defense relies heavily on a distinction between norms and institutions, and such a divide might be equally applied to the ICJ relativist project (i.e. to say that Arab and African international tribunals are regional institutions enforcing universal norms). However, in practical terms, the universality riposte will be increasing difficult to sustain if we begin to talk seriously about 'Arab' and 'African' international criminal tribunals (and law).
Worse still, if there can be an Arab and African ICL, what then are we to make of the history of the field? Few could argue that Nuremberg was an imperfect beginning - both institutionally and normatively - but many would argue that ICL has come a long way since then on both scores. However, if Nuremberg (and Tokyo, and Versailles, etc) were examples 'Western' ICL then their universalisation is not redemptive, its neo-colonial imperialism!
also endemic legal problems with the process of creating 'regional' ICL
mechanisms. The 'Arab War-Crimes Court' is merely an idea, but Africa's
International Criminal Court is in utero, and its riddled with problems.
Max du Plessis presented a paper on this issue last week at an Institute for
Security Studies seminar on the legal challenges of the current Draft
Protocol to the African Court on Justice and Human Rights (a summary of which
will be posted here shortly), and they are numerous. According to Max, "it
is inconceivable that the draft Protocol, with the various problems identified
..., could be meaningfully implemented".
No doubt Neier was calling for an "Arab War Crimes Court" out of a real concern that the Security Council is paralyzed to do justice (a referral of Syria to the ICC remains unlikely). But, while it might have an immediate benefit when the ICC can't exercise jurisdiction, such pragmatism cuts both ways: arguably African states are using the relativism project to shield African leaders from the jurisdiction that the ICC already has. More importantly, the long-term effects of such relativism on the coherence and legitimacy of the ICJ project might be far worse.