Joe Stork Responds to Lisa Hajjar
Middle East Report, Summer 1998

Lisa Hajjar raises pertinent questions about the operation of an International Criminal Court, and on many of her points I agree. If the final treaty produces a court that is subordinate to the most powerful states, it will not be a court worth fighting for. We also agree that the treaty broadens the inherent jurisdiction of the court beyond genocide to include war crimes and crimes against humanity, including gender-targeted crimes.

At the same time, even an independent ICC will operate in the political world as we know it, and will not in and of itself redress existing imbalances of power. An ICC will provide a mechanism that, if properly structured and implemented, will help make enforcement of international humanitarian and human rights law less irregular and inconsistent than it is now. The fact that it will not fully and single-handedly achieve that goal is not a good reason to oppose it.

Hajjar writes that creation of an ICC is not the "best" means to our ends, as if we must choose between this or an alternative. Her suggestions-enhancing extradition policies, expanded regional tribunals and facilitating international class action suits-are excellent, and should be pursued, but they in no way preclude or make redundant the need for an ICC which should complement, not hinder, these efforts.

Hajjar's basic objection appears to be that an ICC would not operate "in and on society" and would "undermine the effective directionality of human rights." That is a very narrow and not very dynamic way of seeing this court. One major function is to provide an impetus for national judicial systems to meet their responsibility to investigate and prosecute particularly heinous crimes of mass murder and abuse. In other words, its effect will not be unidirectional, or "centralizing." A credible ICC will make it all the more feasible to advocate and construct more locally operating remedies such as these. It is through multiple efforts, including formation of an effective ICC, that an "international social order" becomes more meaningful, in this case by promoting accountability (as well as deterrence).

Ad hoc tribunals are necessarily much more politicized than a permanent court. It is states and organizations made up of states that will decide which tribunal to set up, when, with what jurisdiction, and for what purpose. The record of regional bodies on this score, moreover, is mixed and optimism for such bodies is not yet warranted.

Previous Articles:

Constructing an International Criminal Court
Joe Stork - Middle East Report, Summer 1998

Alternatives to an International Criminal Court
Lisa Hajjar - Middle East Report, Summer 1998

Other Resources

CICC Home Page on the International Criminal Court, an NGO site providing documents on the International Criminal Court

On the Record, provides daily accounts of July 1998 negotiations in Rome.

Coalition for International Justice provides information on the war crimes tribunals in the former Yugoslavia and Rawanda.

The official UN page on the ICC

Amnesty International site on the ICC

International Criminal Tribunal for the Former Yugoslavia, features documents, press statements, tribunal publications, and news.

Human Rights Watch page on the The Campaign to Establish an International Criminal Court (ICC)