The Balkans produce more politics than can be consumed at home. On Nov. 7, the decade-old conflict and the reach of international criminal justice touched a Kitchener family as Goran Pavic was arrested while trying to cross into the United States. His name came up in a database of international arrest warrants issued by Interpol alleging he had committed war crimes in Croatia, from where he emigrated to Canada in 1997.
Is "international criminal justice" a much-needed advance that ensures that war criminals have nowhere left to run and no place left to hide in the world? Or is it an example of global political correctness that threatens to create an out-of-control monster with only the feeblest of democratic and procedural checks against abuse and miscarriage of justice?
Canada played a starring role in the creation of the International Criminal Court; the United States is its chief critic. The ICC is both the culmination of the search for universal jurisdiction, where jurisdiction depends on the nature of the crime, not where it was committed; and an emblem of the difficulties that lie ahead in translating the vision into reality.
The U.S. has always acted in the belief that when it comes to international criminal justice, politics trumps law. While the U.S. tradition is to rely on military power for national security, Europe, reflecting its own troubled history, has succeeded in establishing peace on the continent through embedding co-operation in inclusive economic, political, military and judicial institutions.
At least in origin, the ad hoc criminal tribunals for Yugoslavia and Rwanda were alibis for inaction, not indicators of toughening new standards of international accountability. By keeping them under the jurisdiction of the United Nations Security Council, Washington made sure it controlled their destiny. But they generated an unstoppable momentum for a permanent ICC with genuinely universal jurisdiction, with the authority to investigate heinous international crimes wherever, whenever and by whoever they are committed.
Ad hoc international criminal tribunals proved to be important but episodic advances in the evolution of individual criminal accountability. Compared to the ICC, they leave the process of international law more vulnerable to the pursuit of power politics. The court thus marks a major milestone on the road toward rescue from the tyranny of the episodic in international criminal justice. Far too many tyrants have got away with mass murder in the past, sheltering behind the shield of sovereignty. No longer. No ruler anywhere can be certain of lifelong sovereign impunity for mass atrocities.
Permanence also helps to cumulate and build on precedents. The ICC will be an efficient and cost-effective alternative to ad hoc tribunals with respect to money, time and energy. Subjecting prosecutorial investigations and indictments to Security Council authorization, as Washington had demanded, would have politicized the process and tainted the court's impartial credibility. It would have been born in sin.
The U.S. rejection of the ICC betrays a curious mixture of exceptionalism and power politics. Washington may preach universalism, but it practises national particularism and cultural relativism. Much of U.S. foreign policy rests on the self-image of a good and great people divinely ordained to lead the world by example at home and by activism abroad. This intensified after the end of the Cold War, and then again with the present administration.
Just as any law constrains any power, so international law would constrain U.S. global power, and therein lies the rub. Washington bristles at the audacity of the "international community" to constrain or direct U.S. international behaviour.
For Washington, the UN exists to expand U.S. national policy options, not limit them. The effort to establish an effective, impartial and universal rule of law is precisely the problem, not the solution that one might mistakenly construe from the rhetoric.
The real difficulty could come not with rogue prosecutors as argued by Washington, but with responsible ones. It is possible to envision circumstances in which the U.S. political atmosphere is too hostile to permit national investigations and prosecutions, and a conscientious ICC prosecutor decides to take up the case. Similarly, the problem may not lie so much with regard to junior and middle-ranking military personnel as with generals and defence secretaries and even presidents: those with command responsibility, not the foot-soldiers merely carrying out orders.
Yet Washington does have a case. In stable polities, constitutional order has advanced to the point where the justice system is separated from the legislative and executive branches in order to enhance the credibility of all three. But this is only possible because the constitution articulates the agreed political vision for the community as a whole: the U.S. Supreme Court would not be able to function in China's political culture. Such first-order questions are yet to be settled for the international community, and therefore the interplay of law and politics is far more intimate.
By extending jurisdiction over non-party nationals, the ICC displaces the state as the conduit of democratic representation without providing an alternative mechanism for democratic governance. It is not embedded in a broader system of democratic policy-making and there is no political check on it. Why then should it have the authority to overturn policy established by national democracies?
There is another respect in which U.S. fears may be well founded. For justice to be done, it is not enough that the accused actually have committed the crimes for which he or she is charged. It is just as important to ensure that the rule-of-law standard is observed with regard to the collection and presentation of evidence, the right to cross-examination of witnesses, and all the other procedures that we associate with due process and a fair trial.
For the trial to be authentic, the possibility of acquittal must be as real as conviction. In the U.S. constitutional culture in particular, human rights laws give primacy to protecting the rights of the arrested and the accused without regard to guilt or innocence. The momentum of international accountability has swung the balance in favour of conviction. The presumption of guilt has trumped the normal presumption of innocence. Failure to convict is, therefore, interpreted as a failure of justice, not the acquittal of the innocent.