Three Fallacies of International Criminal Justice – Part Two

International Courts are better than Domestic Options

The second part of my observations on the fallacies of international criminal justice is on the premium placed on “international” and “court” in the international criminal justice system. As an independent observer of the Bangladesh War Crimes Tribunals in Dhaka and through my associations with international tribunals such as the ICTR in Arusha and the ECCC in Phnom Penh, I have wondered whether this systemic preference for institutionalized and international solutions to local conflicts is not at odds with the ultimate end of the justice project – comity among states, the end of a culture of impunity, accountability for individual crimes in a system that aims to foster peace through co-operation.

That institutionalizing this broad vision is a perilous task was already revealed through the Tokyo and Nuremberg Tribunals that loom large in our history – showing the weakness of a political bias for institutionalization that does not enjoy the support and co-operation of states that are made to participate in the exercise. But the lasting impression of the role of courts that was born out of these historical trials was one of a post facto institution – created to clean up after political events and individual actors had run their course. This is the role that the permanent court is designed to replace – it is not post facto and by saying that it becomes a symbol of endurance and resilience. However, plenty of creative ways can be thought of to make the work of the international court more meaningful to and accessible to the countries and ‘situations’ it works with. The first of these would be localize the court’s presence by creating forms of vertical interactions with existing institutions in the state in question. When this is made impossible by political conditions, a regional version of such vertical interactions may be imagined. Part of the democratic deficit and deep mistrust in the institution is born out of the fractured optics of each trial – with its seat in The Hague and its international judges and lawyers, the court is seen as an outsider to the justice process. Having witnessed the hostility with which the Legacy Project of the UN ICTR is viewed in Rwanda, I think it is important for efforts at international justice to pay close attention to Transitional Justice. A period of conflict, no matter how horrendous, belongs in the history of that state. There is a sense of ownership of stories of human suffering and identity politics born out of terrible crises in human rights – when courts take over the narrative of trying those most responsible for these acts, the effort, no matter how laudable, needs to be related back to those whose lives it has directly impacted. A growing urgency is palpable in the many instances where states refuse to co-operate or honour their treaty commitments under the Rome Statute because the political leadership there is afraid of an international institution co-opting their sovereign right to their own history. Internalizing the elements of transitional justice like memorializing, narrative history, truth telling and embracing creative, customized approaches to each trial could be one way to harmonize the international with the local. Examples like the success of the post-genocidal Gacaca exercise in Rwanda, the TRC in post-apartheid South Africa, the much-maligned purely domestic Bangladeshi War Crimes Tribunal, and failed examples of replicating these tools in Nepal, Myanmar also contain important caveats against placing complete reliance on the local. With hybrid institutions like the ECCC/UNAKRT, SCSL too, there are important lessons in “internationalizing” a fundamentally domestic exercise. What has not yet been truly attempted is “localizing” the international.

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