05 August 2002
Byliner: Judgment Without Democracy
(Madeline Morris op-ed reprinted from Washington Post July 24, 2002) (1100) [Permission has been granted by Professor Madeline Morris to use her Op-Ed article entitled, "Judgment Without Democracy," appearing in the July 24, 2002 issue of The Washington Post. Permission covers Internet rights, distribution and further republication, in English and in translation, by our Public Diplomacy offices overseas and in the local press outside the United States. On title page, credit author, source and carry: Copyright and symbol (small letter c encircled) 2002 Madeline Morris. Reprinted by permission of the author.] (begin byliner) JUDGMENT WITHOUT DEMOCRACY By Madeline Morris Copyright 2002 Madeline Morris Reprinted by permission of the author The Iraqi government is as likely to prosecute Saddam Hussein for crimes against humanity as the Nazis were to prosecute Adolf Hitler. That is why the world needs a system for dealing with genocide and war crimes. A permanent International Criminal Court was brought into existence on July 1 at the Hague to fulfill this purpose. Why, then, did the Bush administration, in May, renounce the 1998 treaty that forms the foundation for creating this court? Critics have blasted U.S. opposition to the court as unilateralist and uncaring in a world that seems to produce atrocities on a regular basis. Having been involved in prosecutions of international crimes in Rwanda, Ethiopia and the former Yugoslavia, I join with those who want to deal more effectively with the Pol Pots and Slobodan Milosevices of this world. But I doubt whether, in its current form, the International Criminal Court, or ICC, is the answer. There are several principled and serious objections to the court. For one thing, although designed with the noblest of goals, the court lacks democratic legitimacy: Only one-third of the world's countries have become parties to the treaty that created the ICC, and yet the court claims the right to exercise prosecutorial authority over people from any country. Why, then, have the protesters from Seattle and elsewhere who question the "democratic deficit" of the World Trade Organization and other international institutions not expressed similar concern over the ICC? The reason is fairly simple. The assumption is that if ICC jurisdiction entails any loss of democracy, it is negligible -- because the court's mandate is so narrow. Unlike the WTO, the ICC, it is thought, is not intended to make law and policy. Rather, its mandate is simply to apply clear, existing international law. Since genocide, war crimes, and crimes against humanity are unquestionably crimes, there will be no democratic or undemocratic decision-making to discuss. Not so. Although the general prohibitions of genocide, war crimes and crimes against humanity are unquestionable, applying that law to specific cases will be complex and fraught with politics. Crucial questions about the content and interpretation of the law are inevitable. For example, there is a war crime of causing "excessive incidental death, injury, or damage." Are countries therefore obliged to minimize collateral damage by using precision-guided munitions rather than much less expensive ordinary weapons? Or, relative to the war crime of "attacking civilian objects": What is the status of "dual use" targeting, where the target is a bridge, or television station, or electrical grid, that is partially in military use and partially in civilian use? These and other questions that will arise involve areas where the law is indeterminate and the politics weighty. And this only describes the situation as it stands now. The ICC's domain will grow. For example, the ICC treaty provides that the crime of aggression will come within the ICC's active jurisdiction as soon as its member countries can agree on a definition of "aggression." So the next time NATO enters Kosovo on a "humanitarian intervention," the difficult question of whether this was an act of humanitarianism or of aggression may be decided by the ICC. Similarly, since the constituting documents of the court also contemplate expansion of its jurisdiction to include terrorism, the question of who is a freedom fighter and who is a terrorist may now find its answer, in any particular case, in a court established by a group of 76 states. The inclusion of drug crimes and other offenses is also contemplated. This allocation of decision-making power may be fine for the countries that are parties to the treaty creating the ICC. But it has not been agreed to by the other two-thirds of the world's countries that have not become parties to the treaty. Those countries will have no say in the decision-making done by the ICC. The people of those non-party states will not be represented in any way as the ICC makes law and policy, yet the ICC's purported authority over them will continue to evolve and expand. One might argue that it's worth sacrificing our democratic values to prevent or reduce genocide, war crimes and crimes against humanity. But we must soberly confront the fact that recent international tribunals for the former Yugoslavia and Rwanda did little to halt the atrocities. Indeed, crimes continued unabated in both regions even while the tribunals were underway. Perhaps a permanent international court, rendering decisions over a period of years, would have greater effect. Perhaps not. As heart-rending as the crimes are, and as deeply as we wish to stop them, we should think long and hard about endorsing a system we know to be undemocratic when its benefits remain so speculative. The writer is a professor of international law at Duke University and director of the Duke Law Clinic for the Special Court for Sierra Leone. (end byliner) (Distributed by the Office of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)
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