The International Criminal Court: A Work in Progress

There is an old rabbinic saying: all beginnings are difficult.  In the context of a long and thorny past, we are at the beginning of a change.  From the Crusades to the Inquisition to the Holocaust and everywhere in-between, there have been atrocities done by those in power to those without.  Something about the scale and toll of World War II made the international community aim to take a stand to make a change.  Nuremberg's initial goal was justice about the world war, not justice specifically for the Holocaust.  But as society became clearer and clearer about what happened, there arose a more crucial need to put systems in place to ensure "Never Again."

We are not there.  We are at the beginning.  It is in my post-college life that the ICC came about!  Never again has happened again and again.  The ICC would ideally prevent future would-be genocidaires as well as mete out justice for wrongs already done.  However, law evolves.  The Holocaust was unthinkable, and now it is thinkable.  Since the Rome Statute, 9/11 happened; that was unthinkable and now it is thinkable.  the ideal of a court that can handle any situation that is impossible for a national government to handle requires imagination and growth.


From Nuremberg to the ICTs, there were adjustments made.  The Geneva Conventions and the Genocide Convention have gone a long way to specify these grave crimes.  Likewise, the ICTs made a point to select judges who were not connected to the crimes that were being tried in each of their respective countries.  They added options for appeals and denied trials in absentia.  Progress was made.

From the ICTs to the ICC, there were also adjustments made. The very existence of an International Criminal Court is the biggest one.  Now, rules don't need to be made, charters don't need to be created for each tribunal.  There is a system in place.  Furthermore, the ICC is connected to but not part of the UN.   This enables the UN to send cases of concern to them, but it doesn't require that.  In Rwanda, the UN fell short in not intervening .  We can't know how it would have been different if the genocidaires knew they would be taken to task for their crimes.  It is unlikely to have been worse!


My concern with the ICC right now is the same as my concern with the UN.  If the US doesn't choose to participate, there is nothing that can be done by wrongs we commit.  Would Hitler have joined an organization such as the ICC?  Could this have protected the Germans?   Likewise, what about ISIS?  For the ICC to fulfill its mission, it needs true universality.   To have full universality, non-joining countries would need to see a reason to join.  It took the US a very long time to ratify the genocide convention.  If we were to ratify (which right now seems unlikely), that would actually give the ICC much more credence. Likewise, if the ICC were to have success with trying terrorists, this would add momentum to the return of the what Holocaust law scholar Bazyler calls the  "pendulum swing".

Is it naive? No. It is young and has a long way to go.  It exists in an imperfect world.  The world will never be perfect, but we need organizations like the ICC to keep aspiring.