Debating the ICC

In the Boston Review, Owen Fiss and Luis Moreno-Ocampo debate the International Criminal Court. Fiss:

Pragmatic considerations, not structural necessities, may well have led some African nations to turn to international institutions. Justice requires not only a public judgment and the imposition of some form of punishment, but also that this judgment and punishment be the product of a fair trial, indeed countless trials. Fairness requires that these trials be held on a particularized basis, focusing on the individual or group of individuals responsible for a specific event or series of events. Courts must be staffed and lawyers appointed, parties must have the opportunity to gather and present evidence and to rebut contradictory evidence, and some system must be in place for reviewing the initial verdict. As a result, human rights trials require an enormous commitment of resources—time, energy, and money—that will be diverted from other pressing projects. It is estimated that the Rwanda tribunal has already spent more than $1 billion. The Sierra Leone tribunal spends about $35 million a year. The ICC will spend more than $120 million dollars in 2007 alone.

Human rights trials not only consume enormous resources; they also challenge the power of the regime, especially when the need arises to arrest suspects, compel witnesses to testify, and inflict punishment. Those who are prosecuted are likely to resist, and if, as is often the case, they were military commanders of either rebel or government forces, they may be able to call upon the loyalty of those they once led. Sometimes the perpetrators will have fled the country. Yet international tribunals often suffer from these same deficits of power—indeed, in some cases international tribunals may have even less power (to detain suspects, for example)—although effective resistance to their work does not put the authority of the ruling regime in question.

Luis Moreno-Ocampo:

The drafters were well aware that rendering justice in the context of massive crimes or peace negotiations would present particular difficulties. Careful decisions were made: a high threshold of gravity for the jurisdiction of the court was established; a system of complementarity was designed whereby the court may intervene only as a last resort, when states are unable or unwilling to act; and the UN Security Council was given a role in cases of threats to peace and security.

Fiss ignores this development and suggests that delegating responsibility to international tribunals “qualifies the commitment of the nation-state to human rights and lessens the meaning of the human rights trial that eventually takes place. Half a loaf is better than none, but it is still half a loaf.”