The Theater: Inter-Nation Justice & Politics

Selections from Tim Allen’s ‘Trial Justice’
3 Dec 2008

Allen asserts that the original concept for an international justice system dates back to post-World War II reconstruction. 1 In the wake of the Holocaust and the fall of the Nazi regime, there remained a question of what to do with many high-profile captured POWs. Usually, conditional surrender would negotiate the treatment of expected wartime prisoners and criminals, but in this unusual case of unconditional surrender by the enemy (in conjunction with the formation of the United Nations), it was decided that a series of international military justice trials would be formed, ultimately occurring at Nuremberg.

However the body set up to execute justice were wholly temporary in nature, and would later be followed by a succession of similar temporary bodies. Two examples include the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY). Such temporary judicial bodies had a number of difficulties when it came time for them to carry out their mission. Frequently facilities were set up in the territories where crimes themselves had been committed. This meant that it was not at all uncommon for the setting to be wildly unsuited to the vast influx of journalists, officers, staff, observers, and others associated with such an undertaking.2 Also, to offset any effects toward permanence, the courts were limited to three-month contracts for its agents, making it difficult to acquire prestigious and more experienced law-professionals.3 All of this reflects the fact that courts were always pre-designed with the idea of disbursal following any ruling. Allen describes such bodies as “an ad hoc response” applied to issues as they arise.4

In 1998 the UN General Assembly met at Rome in order to rectify certain shortcomings in the other judicial bodies of the UN (The International Court of Justice, or ICJ, prime among them). The began to plan for a new body was to be permanent and designed to address war-crimes in particular.5 Under these auspices, The International Criminal Court was produced. Allen states that many at the time thought of the ICC as simply another example of millennium’s-end rosy-eyed optimism. Allen both affirms and contradicts this.

The ICC is unprecedented in that it the body itself is permanent and has a permanent prosecutor. Attending to some of the lessons learned at the ICTY and the ICTR, an apparatus capable of fielding the vastness of its operation was created to facilitate its operations. Unlike its aged fore-father, Nuremberg, it classified a wide range of activities as punishable war-crimes; rape, sexual slavery, forced pregnancy, mutilation, hostage-taking, extra-judicial execution, forced relocation and more. Perhaps most importantly, according to Allen, it “re-established jurisdiction of international organizations to punish 'crimes against humanity' (whether or not there was an international conflict)”.

On the other hand the ICC has many limitations, some intentional and some arbitrary. The prosecutor cannot pursue an investigation without consent from a chamber of pre-trial judges. Once the prosecutor has that consent, the ICC relies on the support of local governments to actually conduct investigations and make arrests, a fact in reality which often circumvents the process altogether. When cases are able to advance beyond this stage, Allen points out that some candidates wait more than a year for their actual trial.

Prime among the examples of the ICC’s inefficacy, and most disturbing to me, is its relationship with the United States. According to Allen’s account, there were three basic positions regarding the ICC at the Rome conference in 1998. The United States, China, and France were in support of an ICC that required the Security Council’s vote to activate it, assuring that it would never act against their own interests. A second group, including Libya, Iran and Iraq, opposed any kind of ICC altogether. The final and largest group, backed most notably by Canada, Germany, and later the UK, wanted a stronger court. The court in their view should have the ability to prosecute independently of states and unhindered by the Security Council.6

The ultimate passage of the ICC has been sidestepped by the US. The United States congress never ratified the bill, making it non-binding, and the international community commonly feels that, “No attempt has been made to disguise the premise that international laws are important to regulate the actions of the rest of the world, but [rather] that they do not apply to the USA."7

In spite of this Allen, is positive about the court’s departure from the past, and, in the long run, he sees the court as ultimately incidental to local methods of resolution and justice. He points out that roles philosophically fulfilled by such a body, and indeed systems of trial justice in general, (just punishment, mitigation of calls for revenge, and reconciliation/ forgiveness) are in many cases still actualized by local practices such as the Ugandan mato oput.8,9

Allen highlights how, as a result of a group called the LRA (which violently marauded parts of Uganda), there was an increase in the need to reintegrate individuals. To this effect, Allen says that mato oput, an old tradition, was both re-imagined and increased in frequency dramatically.10

To this the anthropologist in me says, ‘whatever works’, and Allen admits that it often (though not exclusively) does.

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1 Allen 16
2 Allen 19
3 Ibid
4 Allen 13
5 The ICJ “was mandated to deal with any question of international law” (Allen 7), and frequently attended to legal interpretations rather than criminal prosecutions.
6 Allen 17
7 Allen 22
8 Allen 24
9 Mato oput being an Ugandan tradition that involves eating a concoction sometimes including raw eggs, twigs and parts of livestock. (Allen 130)
10 Sverker Finnstrom attended four mato oput ceremonies performed by the elders in [his fieldwork, 1997-2002]. But they now seem to occur much more frequently. For example, one research group claims to have documented twenty six... between 2000 and 2005 [in one district alone]. (Allen 163)