International Justice

CJ354 Endicott College

In the Eyes of the Beholder: The Legitimacy of International Justice to Non-State Actors

As we’ve seen in the ICC case study examples in class, the benchmark of success for international justice efforts seems to be the system’s capabilities when it comes to indicting, arresting, and prosecuting former or sitting state officials (in some cases, even heads of state). Moreover, it is those indictments against state officials that stir up the most controversy in the transitional justice and human rights community. That being said, the ICC has, of course, issued arrest warrants for rebel leaders as well. A question emerges, however, when we look to the legitimacy of international justice mechanisms such as the ICC in the eyes of non-state actors.

In the case of Syria, for example, there has been growing international pressure for an ICC investigation into the crimes committed by the state under the Assad regime. Evidence of atrocities committed by rebel groups has very recently come to the forefront of the news as well, though. This situation brings to light a sense of tension in the pursuit of international justice.

Looking at cases in states that have self-referred their situations to the ICC, we see that it is often difficult to bring charges up against governments whose cooperation is necessary to the gathering of information in investigations. In a case such as Syria, however, there is little doubt in the international community that the actions of the government must be investigated (even though Syria is notably not a state party to the ICC). The question will be, though, whether or not the violent actions of rebel groups will also be perceived as worthy of investigation and legal action. Here arises the ultimate question: How do non-state actors view international justice institutions? Do they feel they are not bound by the international norms that their governments have subscribed to, either because the state has violated such rights standards, or (more broadly) because they see the actions of their state as wholly illegitimate to begin with? Looking back to Syria, we must remember that the nation is not a state party to the ICC, therefore making this latter question somewhat less applicable. Nevertheless, considering the ever-growing role that non-state actors play in global politics, the broader issue of the legitimacy of international justice in the eyes of these non-state actors will take on increasing importance as we continue to use the deterrence factor as an argument in favor of transitional justice mechanisms.

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2 responses to “In the Eyes of the Beholder: The Legitimacy of International Justice to Non-State Actors

  1. yaljarani November 4, 2012 at 10:32 pm

    Perhaps what is needed is a shift in focus on the part of international justice institutions from a state-centric approach to one that includes non-state justice and security providers. While they may not be what we typically consider “justice institutions,” the fact of the matter is these informal institutions of justice operate in the majority of states around the world. In many parts of Africa, for example, what are called “customary laws” are given jurisdiction over up to 90% of the population. In Sierra Leone, they covered up to 85% of the population in 2005 (1). Institutions like the ICC do not need to place more non-state armed actors in their prosecutorial sights unless they commit the level of mass atrocity or elite perpetration required to be tried in an international court. The court would be overburdened financially and its resources could be better allocated elsewhere. Furthermore, several problems present themselves when considering prosecuting rebel groups of the kind you bring up, the most disconcerting of which being the political and violent backlash the ICC and the rebel-led government succeeding Asad would face at an attempt to prosecute these crimes. The Libyan government has granted amnesty to freedom fighters for crimes committed during the revolution and it is likely the next Syrian government will do the same (2). That does not mean the governments should not be pressed to address the more atrocious crimes that were committed by the rebels, but it should serve as a reminder that it is better not to risk destabilizing an already volatile post-revolutionary security vacuum.

    As we have seen in hybrid courts and restorative justice (truth commissions, reparations, etc.), international justice institutions do in fact have other routes they can take to deal with non-state actors apart from indictments. I mentioned one alternative approach already and I am sure there are more out there. While the ICC cannot prosecute every crime, it can work with both state and non-state actors to create an atmosphere in which prosecuting crimes committed by the side that “won” more acceptable. The following steps should be taken with regard to “customary laws” and informal institutions of justice:
    1) The ICC can work with the state to determine who the local providers of justice are,
    2) What justice and security tools are available for use in those locales,
    3) And what these communities believe to be legitimate forms of providing justice and security.

    From there, the ICC can work with those local leaders and providers to campaign, among other things, for the application of justice to rebel groups after a relative peace has been made.

    Citations
    1. http://siteresources.worldbank.org/INTWDR2006/Resources/477383-1118673432908/Customary_Law_and_Policy_Reform.pdf
    2. http://justiceinconflict.org/2012/05/08/impunity-rules-libya-passes-controversial-amnesty-law/

    • sarahupp14 November 5, 2012 at 1:06 pm

      Those are all really (I’d italicize that if I could!) insightful points, Yusef. Looking at the pursuit of international justice in a broader sense is definitely key to a successful analysis and application of means of obtaining said justice. Your commentary calls to mind 1) the tension between peace and justice and 2) the importance of promoting local agency (among other key themes touched upon in class/the readings, of course), both of which are topics that broaden and enrich that which I brought up in my initial post. Thanks for responding 🙂

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