The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. -Robert H. Jackson, Opening statement for the prosecution before International Military Tribunal, Nuremberg, Germany, Nov. 1945, in the Trial of German Major War Criminals.
As the dust of recent events swirl about the Middle East, in West Africa and in south Asia, civilians and combatants alike are caught in a death-grip of pain, suffering, and atrocity. From the horrific self-immolation of one brave Tunisian farmer a few months ago, the resulting rising up of oppressed people across the Maghreb shone the bright light of liberty and self-determination on crimes long left alone in need of accountability committed by dictators, tyrants, and thugs, in most instances propped up by the West during the Cold War. When the dust settles in the Middle East, so ends the last visages of that war.
The alleged crimes being committed today by stricken governments reeling from this unrest are being broadcast, emailed, tweeted, and posted around the world. Events that just five years ago would have gone unheeded may now be instantly uploaded and viewed almost in real-time by the international community. In some instances, the world knows about an event before those in command are aware of the actions of their military, police, and other pro-government organizations. It is becoming more difficult to sweep an atrocity under the rug.
With this instant knowledge and awareness of criminal activity, the international community now has the legal capability to deal with such crimes. The principles laid down at Nuremberg and expanded upon by the various modern day international tribunals and courts are reflected in the Rome Statute that created the permanent International Criminal Court (the ICC). No longer can heads of state and their governments shield themselves behind sovereign immunity or a brokered domestic amnesty.
In Libya, Ivory Coast, Egypt, Yemen, Bahrain, Syria, and even Iran, the shadow of the ICC darkens the future of heads of state that rule or ruled with impunity. Over time, accountability, not political resolution, will be the norm. Though politics is and will remain a bright red thread in the fabric of international justice, politicians and diplomats are beginning the trend of comporting their political considerations and deliberations to the law. The recent referral by the United Nations Security Council to the ICC of allegations of crimes against humanity committed by Moammar Gadhafi is a hopeful step in the right direction and reflects the point made.
Yet despite this step forward, the ICC is not the future of international criminal law. The future is in domestic and regional justice mechanisms investigating and prosecuting those who commit international crimes under their law in their region or country. The ICC is a court of last resort, a cornerstone for accountability in an uncertain world used only when a state is unable or unwilling to prosecute their own. This principle of complementarity places the burden of seeking justice for victims of international crimes squarely on the shoulders of States Parties.
The likes of Gadhafi, Mubarak, Gbagbo, and others now must understand that at the beginning of the 21st century those who rule with impunity, killing their own citizens, will pay a price for those crimes. Other heads of state are now reevaluating their policies and positions regarding political and personal freedoms in the hopes of averting accountability.
Modern international criminal law is not a panacea. It is not perfect, but the steps mankind has taken towards a more permanent capability to end impunity is, in the words of Justice Robert H. Jackson at Nuremberg, "...one of the most significant tributes that Power ever has paid to Reason." As the rule of law moves forward so will the long shadow of that law over those tyrants who rule by the gun and not the law.
David Crane is a Professor of Law at Syracuse University College of Law and former founding Chief Prosecutor of the international criminal tribunal in West Africa, the Special Court for Sierra Leone.
Suggested citation: David Crane, In the Shadow of the Law, JURIST - Forum,
April 18, 2011, http://jurist.org/forum/2011/04/in-the-shadow-of-the-law.php.