The Perennial Conflict Between International Criminal Justice and Realpolitik
| Citation | Vol. 22 No. 3 |
| Publication year | 2010 |
Georgia State University Law Review
3-1-2006
The Perennial Conflict Between International Criminal Justice and Realpolitik
M. CherifBassiouni
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Recommended Citation
Bassiouni, M. Cherif (2005) "The Perennial Conflict Between International Criminal Justice and Realpolitik," Georgia State University Law Review: Vol. 22: Iss. 3, Article 2.
Available at: http://digitalarchive.gsu.edu/gsulr/vol22/iss3/2
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GEORGIA STATE UNIVERSITY LAW REVIEW
Volume 22 Number 3 Spring 2006
THE PERENNIAL CONFLICT BETWEEN INTERNATIONAL CRIMINAL JUSTICE AND REALPOLITIK
M. Cherif Bassiouni*
If societies, like human beings, had a genetically-imprinted survival instinct, it would be the "rule of law." But even in the age of globalization, our instinct for social survival has not reached such a developed level.
The putative instinct of social survival cannot be biologically demonstrated, but historical empirical evidence points in that direction. History records that a legal system has existed in every one of the 40 or so world civilizations over the past 7,000 years. Admittedly, the existence of law and legal institutions does not attest to the quality of justice attained in these civilizations. However, evident in every one of these civilizations is the constant struggle for the pursuit of power and wealth by some to the detriment of others. This struggle yields inequities and injustices that law and legal institutions have seldom successfully redressed. But whenever justice or equity has prevailed, it has been because of law and legal institutions—and almost always because persons dedicated to the law pursued such an outcome. Such persons generally encountered
* Professor Bassiouni is the Distinguished Research Professor of Law and President of the International Human Rights Law Institute at DePaul University College of Law. This article represents the basis for Professor Bassiouni's speech on March 14, 2006, as part of the Henry J. Miller Distinguished Lecture Series at Georgia State University College of Law. For more information, see http://Iaw.gsu.edu/news/view.php?id=152.
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obstacles from power-holders and the proponents of power-interests. The pursuit of justice has never been easy, and all too frequently the power-holders and the servants of power-interests have prevailed, even over elementary fairness and basic rights.
In the last 50 years, national legal systems have qualitatively advanced far more than during the preceding 7,000 years. This advance is largely due to the impact of international human rights norms on national legislation. The concept of the rule of law and all that it comports—substantive and procedural norms and rules—has not only enhanced the attainability of justice, but it has contributed to the harmonization between national legislation and legal processes. To some extent, this permeation of international human rights norms and standards has also occurred in the international legal system.
The international and national legal systems differ with respect to participants, processes, structures, values, goals, decision-making processes, and above all, enforcement mechanisms and capabilities. More particularly, the international legal system, is essentially based on voluntariness and cooperation and therefore, lacks both effective enforcement deriving from collective decision-making and institutional capabilities to carry out enforcement. These problems are particularly apparent with respect to international criminal justice.
Reduced to its basics, what motivates states in their relations is not enduring values like those that bind human beings, but interests whose significance and timeliness are in constant flux. Thus, the dominant feature of interstate relations is by state interests. Nevertheless, the evolution of interstate and international relations since World War II (WWII)—until now defined by the Westphalian concept of sovereignty and the Hegelian concept of state interest bridled only by prudence and good judgment—indicates that a significant change has occurred. This change is characterized by commonly-shared values that transcend the unilateral pursuit and preservation of power and wealth that are now part of the global equation. This result is reflected in the many changes that have occurred in the international legal system in the 20th century, particularly with respect to multilateral decision-making and limitations on state sovereignty deriving from commonly-shared
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values and interests. As a result of these changes, the international legal system now includes the concept of international criminal accountability for the commission of certain international crimes as well as the emerging concept of the duty to protect as a harm-preventing measure. These concepts are separate and apart from the United Nations collective security system. Furthermore, both international criminal accountability and the duty to protect partake of the same commonly-shared values and interests. If nothing else, protection is a means of prevention, as is accountability with respect to its deterrent effect. Indeed, criminal accountability promotes advances in international human rights protection because, at a minimum, victims' rights include bringing their perpetrators to justice. This link is evident in the General Assembly's adoption in March of 2006 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which includes a duty to prosecute. However, that modest accomplishment took 20 years to get states to approve these Basic Principles and Guidelines, in large part because of the duty to prosecute. As the United Nation's Independent Expert who prepared this text between 1998 and 2002, I can attest to the obduracy of state interests even at this time, and even for such fundamental principles. Thus, what the international community is willing to profess is not necessarily what it is willing to act upon, let alone enforce.
The identification, application, and enforcement of commonly-shared values and interests in the international legal system presupposes the existence of a community that postulates certain universal objects and moral imperatives that require inter alia certain actions, while proscribing others. It is therefore necessary to identify the limits of state action and to thresholds that impel them to cooperate in the common interest. This proposition is not moralistic, because common experience teaches, based on the lessons of justified pragmatic considerations, that enlightened self-interest, and prudent judgment require limits on unilateral state-action and requirements compelling collective state cooperation for a common interest or a
common good. The acceptance of the above is not dependent on the existence or even the desirability of a world government.
Various models of international governance hypothesize an international community bound by international obligations that flow from commonly-shared values and interests. One model more applicable to the contemporary international system—the civitas maxima—derives from Roman law experience. This is a concept that reflects the existence of a higher body politic, and in the Roman legal system, it included the different nations and tribes that comprised the Empire. But it was the collective belief in the existence of this intangible whole that was greater than its parts—the civitas maxima—that engendered a collective social bond from which emanated duties that transcended the interests of the singular. The moral or ethical ligament and the pragmatic and experiential bonds thus coalesced in the civitas maxima. From that whole, legal obligations arose that the community had to enforce individually and collectively, for the benefit of all.
Against this vision stands the Hobbesian state of nature, in which each state pursues its own interests, defines its own goals, follows its own path, relies on its own means, and is limited only by its own considerations of expediency and whatever is prudent to achieve its goals. This includes the ability of a state to free itself from any moral or ethical limitations, even when these considerations represent its own society's commonly-shared values. Thus, no moral or ethical rules restrain states in their relations with one another, except those rules to which they voluntarily submit, including self-restraining limitations arising from countervailing deterring forces. More significantly, the state could opt out of its previously voluntarily accepted obligations without any other consequences than those that countervailing forces could exercise. The Hobbesian state, subject to its own considerations of enlightenment, expediency, and prudence, is essentially self-controlling. To a large extent, this quality is reflected in the Westphalian model of 1648 which, though without its original vigor, has managed to survive even in the present age of global...
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