Thursday, June 09, 2005

The ICC and Unintended Consequence

Carl Nyberg asked [in reference to my post on the ICC here] “Why are ad hoc courts preferable?” I think the answer deserves a separate post.

Often US opponents of the ICC often cite that the ICC maybe used against the US. I am not all that concern. I doubt that anyone dares to detain US soldiers. They may issue indictment, but if they cannot even detain third world paramilitary leaders, how are they going to detain military members of the most powerful military on earth.

I am more concern about the development of judicial system in underdeveloped and developing nations. The existence of the ICC is a disincentive for poor countries to develop their own judicial system. If one can get someone else to do it for you, why set up courts, appoint judges, train lawyers, develop due process, write legislature – all the legal infrastructures needed for a civil society will not be developed.

One can argue that the ICC article 17 said that it only take a case if “the State is unwilling or unable genuinely to carry out the investigation or prosecution.” But the ICC already accepted case that the State is willing and able to carry out investigation or prosecution. Uganda, instead of prosecute their own people, refered cases to the ICC. What to say other countries who want to abdicate their of judicial responsibility won’t refer future cases to the ICC. And if the ICC accepted Uganda, can it refuse other countries? Do not be surprised if 50 years from now, Uganda judicial system will still be non-existent.

Futhermore, the ICC can make the victims can feel alienate from the process. Imagine a poor Ugandan woman who was victimized, raped, has her husband murdered. Now she hear that her perpertrator is being trial in the Hague where she cannot attend, she does not understand the process, and play no part in the procedure. How is justice being served for her? The Rwadan tribunal also create an absurdity than the chief perpertrators receive a lighter sentence than their hencemen. Many lower ranking perpetrators who were trial in Rwanda will receive the death penalty, but the higher status ones who were trial by the International Tribunal will not receive the death penalty.

Ad hoc tribunals performed reasonably well. It has the backing of the Security Council and with it enforcement. I do not see any improvement with the ICC, but instead see many dangerous unintended consequences.

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