The Geopolitics of International Criminal

Justice - By Steven Kay QC

December 9, 2011 By Steven Kay QC

A guest blog by Richard Cashman

The International Criminal Court is being used as an instrument to carry out regime change with
a smoke screen of human rights protection. This is an extract from the Russia Today article
above about Western policy in Syria possibly igniting WWIII.
While on the face of it representing only the opinion of one (very fringe) political commentator,
this is highly representative of the executive view of Russias flagship international TV channel,
which rolls all day inside Russian universities and other public buildings, and is anyway much
milder in rhetoric than its counterparts in China and the Middle East.
Thus, in a climate of polarised views on the utility and purpose of international criminal justice,
it pays to look at its impact from a geopolitical perspective.
Resolution 1970 that imposed sanctions on the former Gaddafi regime in Libya was
accompanied by an announcement that the Security Council was formerly referring Gaddafi
himself to the International Criminal Court in The Hague with a view to a possible indictment for
crimes against humanity. This was only the second time the Council had agreed such a referral
since that of Darfur in resolution 1593 of 2005.
Gaddafis ICC referral was no rubber stamp affair. Britain, France and Germany strongly
advocated for it, China remained uncommitted to the last and the remainder equivocated for
much of the time in between. This spread of support is indicative of the way in which the
European Union states have embraced the development of international criminal justice
represented by the ICC and the ad hoc tribunals before it.
This can be contrasted with Russia, India and Chinas traditional suspicion of such courts and the
United States support for ad hocary but concern about the more supranational ICC. So despite
the example of Gaddafis referral, international sentiment towards international criminal courts
can at best be described as luke-warm.
The objection of many states is readily understandable in terms of the putative threat the
propagation of these courts and cases presents to their governing regimes. The US position stems
more from a fear that the ICC could be hijacked by a majority grouping of unfriendly voices that
would scrutinise its global military activity rather than domestic governance.

The development path of international criminal justice has therefore been beset by the reluctance
of significant states across the liberal-autocratic divide. As a result, only under very specific
conditions has it been able slowly to evolve, meaning that its development has, in many ways,
run parallel to that of humanitarian intervention, as partially expressed by the Responsibility to
Protect (R2P) concept.
Indeed, it can be argued that international criminal justice is a form of liberal intervention in that
it typically substitutes foreign powers for national ones in the limited administration of the
normal legal function of sovereign states. And there is also no escaping the fact that its precepts
fly directly in the face of the Westphalian model of sovereignty, which purposely denies rights
and obligations to transgress borders for the purposes of protection or punishment.
It is the question of obligations which is the pivotal issue over which international criminal
justice consistently stumbles. The great jurist H.A.L. Hart drew the distinction between having
an obligationand being obliged to do something. The strongest states might be persuaded to
undertake many obligations, but without the coercive power to sanction their breach they will not
be obliged to honour them. In other words, the highest law remains the decision of arms which,
because of nuclear realities and the globalised nature of the world economy, essentially leaves
some states above the law.
There is therefore an obvious inconsistency in international criminal justice in so far as its
universalist principles cannot yet be applied universally. Nevertheless, international criminal
justice clearly has the potential to be a key component in propagating liberal order.
Fostering a more liberal world, which presumes the absence of the type of leaders and actions
that international criminal justice is concerned with, is a normative project boosted incrementally
with every leader who is forced to seek political compromise where he or she might have wished
to call in the tanks. It is incidental and not fundamental that not all states can be brought to
account in the same way.
Increasing normative momentum around the strong states that continue to transgress those norms
will make their positions increasingly untenable in a world of ever more pervasive
communications. Assuredly, the prosecutions under international criminal law to date have
informed the behaviour of many petty autocrats, with even the species of more serious ones
being increasingly sensitive to the status of pariahdom, if not the courts themselves.
And it is for precisely this reason that major powers pouring scorn on the process is a very
unwelcome development.
http://rt.com/news/syria-iran-russia-china-921/