We are delighted to welcome this guest post from Prof. David Forsythe, Charles J. Mach Distinguished Professor at the University of Nebraska-Lincoln
Close observers of world affairs will recall that international criminal law (ICL) began a renaissance in 1993 when the United Nations Security Council created the International Criminal Tribunal for Former Yugoslavia. Since that time the UNSC has been involved many times in ICL issues concerning prosecution of individuals for genocide, crimes against humanity, or war crimes. From one point of view the Council can be congratulated for taking steps to respond to atrocities that during the Cold War were often ignored. From another point of view the Council has been highly political and therefore highly inconsistent in that response, often showcasing not the rule of law in international relations but rather the priority of short term and parochial “national interests” of member states– above all the Permanent members with the veto (P-5). A central question is whether in the future the Council can display more principled commitment to legal justice and less variation based on P-5 strategic political calculation.
Space does not permit an extensive review of how the Council advanced ICL and a variety of types of criminal courts since 1993 with regard not only to the former Yugoslavia but also Rwanda, Sierra Leone (with implications for Liberia), East Timor, and Lebanon. Likewise, after the creation of the permanent International Criminal Court (ICC) by treaty during 1998-2000, the UNSC was involved in criminal justice issues in places like Sudan (Darfur) and Libya. All of this action for increased use of courts is apart from other Council steps in response to atrocities such as deployment of security forces in the field, appointment of diplomatic personnel, imposition of sanctions, and so on. Moreover, sometimes the Council was not centrally involved in ICL developments, as when a state such as Ivory Coast or Kenya itself (not to mention Uganda, Central African Republic, or Democratic Congo) activated the ICC directly. There were also other ICL developments outside the UNSC pertaining to the exercise by states of the principle of universal jurisdiction for egregious crimes like torture. Nevertheless, the Council has been persistently involved in ICL since 1993.
It has sometimes been said of internationally recognized human rights in general that developments since 1945 represent a form of neo-colonialism, with the powerful imposing their will on the smaller and weaker post-colonial states. While this critique can be overstated, there is unfortunately some truth to the assertion when it comes to ICL. In particular China, Russia, and the United States refuse to consent to the authority of the ICC and are exempt from UNSC resolutions because of their veto rights in that organ, yet they sometimes compel others to submit to the norms and procedures of ICL. (At least Britain and France have accepted the ICC.) Then there is the question of why China would host Sudanese leader Omar al-Bashir on a state visit after he had been the subject of an arrest warrant by the ICC. Many other issues remain to bedevil UNSC deliberations about ICL, such as when to refer a situation to the ICC and when to seek an end to atrocities through measures apart from adjudication.
In the final analysis (for now), a central question is whether the evident double standards of contemporary UNSC action for ICL can be reduced, and thus whether a more principled commitment to criminal justice through that important UN organ can be achieved.