Criminal trials seem to be all consuming matters of legal concern these days. Just over the past week, we have seen Ratko Mladic appear for his plea at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague for his role in the Srebrenica genocide, indictments handed down for the assassination of former Lebanese prime minister Rafik Hariri by a UN special tribunal, and International Criminal Court (ICC) arrest warrants issued for Colonel Muammar Gaddafi, his son, and a long time apparatchik of his regime. Not to be outdone, Gaddafi has begun his own trial. He is trying some of the opposition government members located in Benghazi, for offering aid and comfort to the enemy (meaning NATO), spreading lies and misinformation, and other matters that sound in treason of one sort or another. This is to say nothing of the apparent collapse of the sexual assault case against former International Monetary Fund (IMF) chief Dominique Strauss-Kahn in New York, and the subsequent taking up of a similar case against him in France.
There is in fact a consistent theme that runs through these rather disparate international and domestic proceedings. It is the essential element of legitimacy that is a precondition to the effectiveness of a prosecution in assigning criminal responsibility for a wrong. This is not something that can be achieved subsequent to that trial through full and fair proceedings. Take, for example, the New York case as against Dominique Strauss-Kahn. Due to the broad international legitimacy offered to that New York state court and its process, the case was able to proceed without serious interference or challenges respecting its authority. I do not mean by this that some did not find the prosecutor, Manhattan District Attorney Cyrus Vance, to be overzealous. Strauss-Kahn's lawyers made precisely this claim even as others defended him as having done what was necessary to ensure that a credible claim made against a powerful man en route to another country could be properly pursued. The legitimacy of the process was not seriously questionednot by France itself, where Strauss-Kahn was effectively barred from running for president (at least for the time the prosecution was proceeding in earnest), nor even by Strauss-Kahn himself, who participated fully in the proceedings.
Something similar might be said to be happening with respect to the Mladic trial. Though unlike Strauss-Kahn, Mladic appears not to recognize or concede that the tribunal has any authority, indicating in his tirade that they are "not a court." This is probably a view held only by him and some relatively fringe, aging, nationalist contingent of Serbians. It was Serbia, after all, that turned Mladic over to The Hague in relatively short order once he was found. Serbians seem more preoccupied with the victory of Serb national Novak Djokovic at Wimbledon than whatever is happening to Mladic. In the end, few think that the perpetrator of the horrors of Srebernica should not be prosecuted, or that this is not the proper tribunal to try him.
On the other end of the spectrum of legitimacy, of course, lie Gaddafi's trials against members of the Benghazi opposition council, which nobody other than the party's loyalists could possibly take seriously. Yet what is interesting respecting all three matters is that we judge the legitimacy of the tribunal before it begins, not by the process by which it proceeds. There was no serious question that Strauss-Kahn could not credibly run for president while on bail in New York for an allegation of attempted rape. The conclusion certainly would not have been the same if, for example, he had been arrested in Libya and detained on a charge of treason.
This is precisely what makes the Lebanon case so troublesome, and the Libyan case so interesting. In Lebanon, the Special Tribunal for Lebanon was created to pursue the assassination of Rafik Hariri. Yet it was created over the obvious objection of such a substantial part of the Lebanese population that it never received the approval of the Lebanese parliament, despite repeated efforts to get such approval. Approval was received by only a rump Lebanese cabinet, the six ministers associated with the opposition having resigned well before such approval was sought. Rather than find some sort of solution to create a tribunal that would meet with broad approval of all factions (a daunting task to be sure), the pro-Hariri faction unwisely asked the UN Security Council to approve the tribunal without the parliament's consent, and the Security Council did just that in Resolution 1757. Naturally, not an ounce of legitimacy was afforded to the tribunal by Lebanon's opposition, led by the Shi'i Islamist organization Hezbollah.
There seems to have been a hopeful, but vain, belief on the part of some that if the tribunal could only proceed in a fair and impartial manner, its legitimacy might be earned where it was lacking. If not among Hezbollah's leadership (who might well be resisting a tribunal because of their involvement in the assassination) then certainly among its rank and file. This, it was hoped, might render objections marginal and limited to some extreme contingent, perhaps as is the case with the Mladic prosecution. In scintillating commentary in the Berkeley Journal of Middle Eastern and Islamic Law, Melia Amal Bouhabib offers just such hope, along with a series of well considered recommendations on precisely how legitimacy might be earned.
The problem is that once the tribunal is perceived as illegitimate at its start, as any tribunal would be where parliamentary approval for it was sought and then, when it could not be obtained, bypassed by edict of the Security Council, process matters not at all. The Lebanese opposition could not credibly have been expected to participate meaningfully in a tribunal they had successfully opposed if not for Security Council intervention. Instead they have chosen to take their case outside of the court's walls, in a remarkably effective way. Videos are released purporting to show court officials taking bribes, over which dramatic music plays. Hezbollah leaders cite what they allege to be perjured testimony and unreliable witnesses, or offer documentation to the Lebanese government and to the public which is supposed to demonstrate that computers containing investigatory data leaving Beirut for the Netherlands passed through Tel Aviv. In each case, the response of the tribunal is that such allegations should be made in open court. This is a tactic that no doubt Dominique Strauss-Kahn's lawyers would have adopted in comparable circumstances, but one that given the court's troubling initiation, Hezbollah paid absolutely no attention to on the grounds that the tribunal was too overtly biased to be heeded.
The result has been all too predictable. Indictments have been handed down, and Hezbollah, now part of a governing coalition, has denounced them and refused to cooperate. Meanwhile, the hopelessly divided Lebanese government is almost certainly going to find it difficult to carry them out. Trials will be likely to begin in absentia, with the outside allegations of bias certain to continue, and the results almost certain to be disputed by Hezbollah and its allies. Even as some will extol the results as being some form of justice done to the late prime minister, others will denounce the entire affair as a politicized Security Council-driven monstrosity designed in a manner that the Lebanese people never approved through their elected representatives. Given that the divisions will not be healed, and the results perceived as illegitimate, it is not precisely clear what the Security Council intervention has managed other than to insert the international community into the middle of an intractable domestic dispute.
It is worth keeping the unfortunate results of Lebanon in mind as the work of the ICC proceeds in Libya and elsewhere. That is, clearly the Security Council mandate has achieved little in Lebanon to create tribunal legitimacy. It would be unfortunate if similar Security Council authority was misused in the future, or rather so selectively used as to cast the legitimacy of the entire ICC into jeopardy. I do not mean to suggest that this has occurred, but that the danger should be borne in mind.
The source of the danger lies in the Rome Statute of the ICC, which has a rather narrow prescription of jurisdiction, limiting it for the most part to specified international crimes either (i) occurring in States which are parties to the Statute or in which a national of such a State is a Party or (ii) referred to it by the Security Council. To put the matter starkly, if Chinanot a member to the Rome Statute and with veto power in the Security Councilwere to engage in a broad genocide of Tibet's population (no intention to suggest that this is at all within China's contemplation, and offered only by way of illustrative hypothetical), the ICC would lack jurisdiction entirely. The same would not be true if a government without a permanent seat in the Security Council were to kill dozens of protesters in a rally, and the Security Council were to refer the matter to the court for resolution. This disturbing discrepancy is scarcely defended by those earnestly engaged in the work of international criminal justice but rather justified as a necessary compromise to political realities. Thus, at a talk at the University of Pittsburgh School of Law, former head of the International Criminal Tribunal for Rwanda (ICTR) and Norwegian Supreme Court Justice Erik Møse eloquently and accurately indicated in response to such a criticism from an audience member that such problems do exist, but that they should not detract from the serious work that international tribunals do.
Yet such a justification only goes so far, namely to the extent that the well-intentioned, professional and serious participants in the system are generally believed to be engaged in the necessarily imperfect exercise of ensuring that justice be brought about for some of the world's most notorious crimes. To the extent that these courts are understood to be nothing more than the (well-intentioned) legal enforcement wing of the Security Council, less engaged in justice and more in pursuing selectively chosen political enemies for prosecution while ignoring allies whose crimes are no less great, the grave threat to legitimacy thereby arises.
So far, the Security Council has acted judiciously. It is true that both the Arab League and the African Union offered pro forma denunciations of the indictment of Sudanese President Omar Hassan Bashir, and suggested political motivations for the charges brought against him. Yet the crimes of which he is accusedrelating to genocide in the Darfurare of a sufficiently serious nature that no credible claim of excessively selective prosecution can be made. As a result, as one who has done a great deal of work in the Arab world, I do not perceive much interest in the matter among Arabs, and certainly none of the fury that erupts among many Arab Shi'a, and in particular Lebanese Shi'a, when the Hariri investigation is raised.
Libya, however, begins to present a much closer case. The problem is not so much the indictments of Gaddafi and his son themselves. They have been brutal and are unloved by Arab leader and layman alike, so much so that the Arab League took the extraordinary step of requesting NATO intervention. The problem, rather, is that they seem to be the only individuals who have been so selected for prosecution despite the widespread repression that has arisen in response to the Arab Spring across the region. Why, Bahraini Shi'a ask, is it that there is no suggestion that some of Bahrain's leadership is not referred to the Security Council for any number of human rights violations, including the use of live fire ammunition on protestors leading to dozens of deaths, widespread arrests and detentions of individuals opposed to the regime who are then denied access to family and lawyer alike, and the inception of military trials against everyone from doctors to students that reputable human rights organizations have maintained lack credibility? Perhaps more saliently, given the higher number of deaths from government violence, what of Syria's fierce repression, severe enough that even Amnesty International has suggested referral to the ICC? It is one thing, after all, for justice to be imperfect, another not to even be pursued so long as one has a friend with veto power on the Security Council.
To be clear, I do not believe that the legitimacy of international criminal justice is under any sort of imminent threat. I do think, however, that as its work expands and as the Security Council intensifies its role in referring matters to it, these sorts of problems are likely to become thornier. As such, the lessons of Lebanon will be useful to keep in mind.
Haider Ala Hamoudi is an associate professor of law at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government, experiences he describes in his book, Howling in Mesopotamia. He also maintains a blog on Islamic law.
Suggested citation: Haider Ala Hamoudi, The Problem of Legitimacy in International Criminal Justice, JURIST - Forum, July 7, 2011, http://jurist.org/forum/2011/07/haider-hamoudi-libya-legitimacy.php.