The International Criminal Court and the Justice vs. Democracy Problem
from Diamonstein-Spielvogel Project on the Future of Democracy and Democracy, Human Rights, and American Foreign Policy

The International Criminal Court and the Justice vs. Democracy Problem

July 9, 2024 4:50 pm (EST)

Current political and economic issues succinctly explained.

The International Criminal Court (ICC) in the Hague is in the news in 2024 because its prosecutor has asked the court to issue warrants for the arrest of Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Without discussing that request, in an important way the Court has made protecting human rights and democracy more difficult. Amnesties are a frequent part of transitions to democracy and can help persuade dictators to leave power, but the court’s insistence on prosecutions can eviscerate amnesties—and take the decision out of the hands of the voters seeking a democratic transition.

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The court’s purpose is stated on its website: “The International Criminal Court investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity, and the crime of aggression.” The preamble to the Rome Statute establishing the court says the states parties are “determined to put an end to impunity for the perpetrators of these crimes.” The statute also defines “crimes against humanity” this way: 

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  • Murder;  
  • Extermination;  
  • Enslavement;  
  • Deportation or forcible transfer of population 
  • Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;  
  • Torture;  
  • Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;  
  • Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the court;  
  • Enforced disappearance of persons;  
  • The crime of apartheid;  
  • Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 

The court has acted against a number of former heads of state, but only in only two cases, prior to Netanyahu, against sitting heads of state: Ivory Coast President Laurent Ggabo, who was charged with crimes against humanity in 2016 and acquitted in 2019, and Sudan President Omar Bashir, indicted in 2009 and never tried because he was never handed over to the Court by Sudan.  

During the 1980s, in the Ronald Reagan administration, I was involved as a U.S. government official in efforts to negotiate the departures of many dictators: Ferdinand Marcos in the Philippines, Chun Doo-Hwan in South Korea, François Duvalier in Haiti, Augusto Pinochet in Chile, and the military juntas in Argentina, Brazil, Uruguay, and elsewhere. 

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Here is the problem when the court indicts a head of state who seized power undemocratically: it significantly reduces the possibility of negotiating that individual or similarly situated individuals out of power.  

In addition, in the 1990s the United States supported the evolution of South Africa away from the apartheid regime and toward democracy. It is important to recall how Nelson Mandela, who was elected president of South Africa in 1994, dealt with the crimes of the regime he replaced: by seeking reconciliation, not revenge. He appointed the previous president, F.W. de Klerk, as deputy president and met with others who had been high officials of the apartheid government. He established the Truth and Reconciliation Commission, which investigated crimes committed under apartheid—but offered amnesty rather than punishment to those who admitted what they had done. The goal was national reconciliation rather than punishment—or what has been called restorative justice rather than retributive justice.  

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Uruguay presents a different model for a transition to democracy. Negotiations between the military junta and representatives of the democratic political parties resulted in the Naval Club Pact in 1984—leading to free elections in 1985 and the end of the dictatorship. The pact included a blanket amnesty for human rights violations that occurred under the junta. By my count, virtually every negotiated transition from dictatorship to democracy has included some form of transitional justice and very often included some form of amnesty. 

Negotiations about a transition to democracy are conducted by top officials of the outgoing regime, who will be especially interested in their own scalps. When there is a negotiation with a head of state about his departure from power, he will be weighing the pressures to leave office against his own fate if he agrees. A key part of that negotiation is often—and this was certainly the case for Marcos and Duvalier—being able to assure the man in power that he will not be executed or spend the rest of his life in prison. 

That is an unjust outcome, allowing those who organize coups and violate human rights to escape punishment. But it is also a necessary ingredient to ending dictatorship and transitioning to democracy in many cases. When extending the years covered by the amnesty in South Africa, Nelson Mandela said in 1996 that “this is one of the most difficult decisions I have had to take. Much pain and suffering has been wrought on families, communities, and the nation as a whole by acts of the nature for which amnesty is to be requested and possibly granted. But I have decided to take this decision, because on balance I am persuaded that it will further consolidate nation-building and reconciliation in a manner that is all-inclusive.”

Who is to make that decision—to prioritize restorative justice over retributive, or to grant amnesty in the hope of national reconciliation? At first glance the answer seems easy: the government and people of the country in question. But then comes the International Criminal Court. It is not bound by amnesties. The court states [PDF] clearly that “amnesty cannot be used as a defense before the ICC. As such, it cannot bar the court from exercising its jurisdiction.” 

Consider then a discussion with a dictator like Marcos or Duvalier, as officials of the U.S. government or other governments try to persuade him to leave. In the 1980s, we were able to say, “Just go.” Take the money and run. Leave the country and leave power now, and no one will come after you. Such individuals may see escape as a good option at that point. And in other cases, an amnesty will be part of their negotiations with those will follow them in power. 

But that discussion changes when the individual knows he will forever be vulnerable to ICC prosecution. Then he may wish to hang on and fight on. And he will know that no amnesty agreement can save him, nor can a desire on the part of the new democratic government to favor reconciliation. Instead, the International Criminal Court will make its own decision on all those questions and may pursue him for the rest of his life. Better to hang on to power, he may conclude. 

It is in this sense that the very existence of the International Criminal Court may do harm to democracy and human rights. Its prioritization of prosecution over amnesty and reconciliation makes amnesty agreements and transitions to democracy harder. The court hangs as a threat over officials and is meant thereby to deter them from organizing coups or committing human rights crimes. But that threat can also deter them from engaging with their own citizens, and with opposition groups, in negotiations to leave power so democracy and human rights can be restored. It is a paradox, perhaps, that justice in the ICC and restoration of democracy can be at odds in this way, but there are solutions.

First, as the Mandela example shows, it is better to allow the people who have suffered from injustice and who now seek restoration of democracy to decide what compromises to make to secure their own country’s future. That’s not a decision that should be made or second-guessed in the Hague. 

Second, it is better to help national authorities prosecute than it is to usurp their decision. Take the case of former Honduran president Juan Orlando Hernandez, who served from January 2014 to January 2022. One month after he left office he was arrested by the Honduran national police and Drug Enforcement Administration agents at his home in Tegucigalpa, and three months later extradited to the United States. In 2024 he was convicted of narcotics trafficking in the U.S. District Court in New York City.

Third, the ICC’s role is clearer and more defensible when the crimes in question cross borders. In the Ggabo case mentioned above, for example, Ggabo and Alassane Ouatarra fought for the presidency of the Ivory Coast in 2010, and the ICC prosecutor indicted Ggabo in 2011 because of post-election violence. When Ggabo was finally tried and acquitted by the court, in 2021, President Ouatarra invited him to return to the Ivory Coast with the honors and pension due to an ex-president. Ggabo has reentered politics, formed a new party, and says he will run for president in 2025. The crimes alleged against Ggabo were solely against Ivorians, and it seems best to let Ivorians settle their disputes through democratic politics. But when the crimes alleged are of an international nature, such as drug trafficking across borders, human trafficking, or wars of aggression, the case for intervention by the international court is stronger.

International criminal jurisdiction should remain an exception to the rule that each nation should prosecute crimes, and if necessary make the trade-off between justice and democracy itself. Whether in a given case that trade-off is in fact necessary, or forms the basis for a stable and long-lasting democracy, is again a decision that leaders and voters in each nation should make for themselves. They, and not judges in the Hague, must live with the consequences.

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