Just as storms overwhelm unattended levees, political strife and armed conflict can overwhelm the system of international law created to ensure we do not repeat the darkest periods of human history. Today marks the 15th anniversary of the adoption of the Rome Statue, which established the International Criminal Court to secure accountability for war crimes, crimes against humanity and genocide. This week also brings continued news of the terrible price paid by civilians as a result of such grievous crimes in Syria, Sudan and elsewhere.
Millions have been victims of these crimes in recent history, yet only very rarely have those responsible been held accountable. In the last two decades, however, progress has been made towards reversing this trend of impunity. With the establishment of the International Criminal Court, a clear message was sent around the world that failure to investigate and prosecute such crimes at the national level will not be tolerated.
Yet, every hopeful step is met with new and compelling challenges. Political alliances sometimes supersede international legal and moral obligations, shielding fugitives such as Omar al-Bashir, the sitting president of Sudan, for example, from appearing before a court of law to answer for their alleged crimes. Impunity for grave crimes robs those victimized of justice, and prevents communities and whole countries from recovering from trauma.
An arrest warrant for al-Bashir was first issued by the ICC in 2009, where he was charged with genocide, war crimes and crimes against humanity in Darfur. Since then, several governments have readily hosted him, failing in their legal obligations to arrest and surrender the accused to the ICC for trial. These governments, and the many more that fail to condemn these breaches of obligation, have some moral ownership over the devastating war crimes and crimes against humanity in Southern Kordofan and Blue Nile, now manifested far in space and time from the crimes in Darfur.
This week, the government of Nigeria hosted him for a conference, instead of arresting him. Following outrage at the decision, al-Bashir left Nigeria, free to return to Sudan. Justice – though an end unto itself – has a practical utility that we have failed dismally to shepherd for the deterrence of atrocities. Any hope for preventing future crimes depends on our willingness to prosecute current ones.
‘International Justice’ as a concept is based on the moral precept that there are universal and immutable bounds to human behavior; it is our grandest collective statement that individuals, no matter their position, status, or power, must be held accountable for war crimes, crimes against humanity and genocide. The Rome Statute is a product of international recognition that, with crimes such as these, a standing, last-resort mechanism for justice must be in place.
Perpetrators of the most heinous crimes against our shared humanity are readily labeled as monsters or aberrations: the grotesque manifestation of statistical deviance. However, the existence of these heinous crimes is conceptually no different than seemingly aberrant floods, super-storms and erosion in a possible future of run-away climate change; all are the natural consequence of the accumulation of externalities.
Today’s atrocities are the product of impunity; of the accumulated pollution of the global body politic and government capitals with the notion that political survival, rather than the pursuit of justice, is the ultimate arbiter of the bounds of human behavior. Political expediency and narrow state-interest often imperils the humanity that international law was designed to protect. The U.N. Security Council’s failure to refer blatant crimes against humanity in Syria to the ICC typifies the commodification of justice as a concession to be negotiated in grand diplomacy.
Paired with these short-sighted failures is a diffuse attack on the ICC itself as an institution of coercion: the morally dubious proposition that – since some crimes committed by powerful individuals have gone unanswered – international justice efforts represented by the ICC are naked expressions of hegemony and control. Agents of impunity could not devise a better ruse undermining accountability than to propagate a narrative of the ICC and other mechanisms as themselves manifestations of injustice.
Today’s failures to attend to the “levees” that enforce the universal and immutable bounds of behavior invite more atrocities into the future. It is an inconvenient truth for many world leaders that short-sighted concessions on justice and accountability - whether for noble pursuits of peace, or for self and state interest - will reap costs that will be paid for by our grandchildren.