The International Rule of Law

On the 15th of November, I had the chance of assisting to a viewing of the Canadian documentary “Prosecutor”[1] with the said Prosecutor (Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court (the ICC)) at the University of Ottawa, Faculty of Law. The documentary was interesting to watch; it outlined the determination and perseverance of Mr. Moreno-Ocampo and the inherent difficulties of being the chief prosecutor of an international court. I recommend it if you are interested in the ICC and international criminal justice.

What was even more interesting was the discussion that followed. One of the students in the audience asked what would be the Prosecutor’s next career move (Mr. Moreno-Ocampo’s mandate is ending soon). He mentioned that he was very interested in educating the international relations crowd about the rule of law and international ethic. I found his answer particularly interesting because the notion of international ethic is something that has wondered inside my central nervous system for a while.

Before I go any further, some explanation is necessary for those who are not familiar with the ICC and international criminal law. The ICC has jurisdiction over 3 (and possibly 4) crimes: crimes against humanity, war crimes and genocide (plus possibly aggression aka illegal war). The ICC has territorial jurisdiction over the member states (states that have ratified the Rome Statute[2]), over states who ask for the help of the ICC and over states who were referred to the ICC by the UN Security Council. Temporal jurisdiction starts at ratification of the Statute or is specified in the referral. There is thus a lot of limit on what, when and where the ICC Prosecutor can investigate. Those are what I call the paper “limits”. There are also the logistic limits such as the lack of police force, the lack of authority over sovereign state, the lack of cooperation, etc. Finally there are the political limits produced by peace negotiations, and skeptical diplomats and international staff.

The legal limits of the ICC are normal and part of how international law works. It is to be expected, just like the Constitution and legal doctrines limit national criminal law. What is strange with the ICC – and the documentary and Mr. Moreno-Ocampo made it obvious – is that many view the court and thus the international rule of law as a nuisance in general but specifically for peace. We would never see this kind of comments with regards to the rule of law at the national level where it is seen as a necessity and part of what creates peace inside democratic states. Criminal law is good for “normal” criminals, but it seems that negotiations are preferable for genocidal dictatorial maniacs? I find this troubling.

Mr. Ocampo and the documentary refuted the arguments often used by some members of the international relations community.

First argument: arrest warrants against war criminals will make the situation on the ground worse. Response by a victim: the situation can’t be worse, these people only deserve to be judge, and we deserve justice. I couldn’t have said it better. It seems to me that prosecuting alleged war criminals is simply the ethical thing to do. Besides, I’m still waiting for proof that this argument is true as it seems that arrest warrant tends to have no effect or have a chilling effect on war criminals (which is a good thing).

Second argument: the warrants are in the way of peace negotiations. Response by Mr. Moreno-Ocampo: how can you negotiate with someone (or some people) who mass murdered countless innocents? committed genocide? or any other war crimes or crimes against humanity? I rarely see victims of those crimes jumping at the idea of peace negotiations (which often gives some sort of immunity to the alleged war criminals) with the person or group who are responsible for committing what the international community considers as the worst crimes. Beside, as Mr. Ocampo has mentioned, the warrants have tended to accelerate peace negotiations in the past not deteriorate them.

What I’m wondering is: doesn’t the population of regions affected by the plagues of war crimes deserve a minimum of justice? Shouldn’t the rule of law become as normal at the international level as it is at the national level? Mr. Moreno-Ocampo, the Prosecutor, thinks so and he is ready to go out into the world and educate international relations experts. I wish him luck and success and will probably try to join him, sort of speak, in his quest as I intend to study this area further. After all, injecting a little bit of ethics in the highest sphere of politics can’t do much harm.

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