The Roman goddess for justice, Lady Justice, is usually depicted with scales representing fairness, a double-edged sword as a reminder of reason and justice, and a blindfold as an ode to objectivity. But what happens when one of these critical metaphors are missing from a legal system? What if Lady Justice is not present in any form?
Within the international context, some may point to the self-proclaimed “court of last resort” as a possible arbiter of justice. Forged as a compliment to national court systems, the International Criminal Court (ICC) was envisaged through the Rome Statute (1998) as a permanent mechanism to try individuals of genocide, war crimes, crimes against humanity, and crimes of aggression. The ICC should not be confused with the UN International Court of Justice which oversees disputes between states in accordance with international law.
But from its inaugural year in 2002, the ICC has had to answer detractors critical of the court’s authority to try individuals, legitimacy of global recognition, geographical bias (of 22 total cases, all have been within continental Africa), and effectiveness (only 2 convictions, both Congolese, since 2002).
Recently, the Washington Post’s Editorial Board suggested the “criminal court is foundering” and “lacks the clout to pursue cases in places where regimes remain in place and conflicts are unresolved.” In response to this editorial, the Washington Post published a letter to the Editor that argued the credibility of the ICC and need for support of all countries, especially the United States, to give it clout.
This dearth of credibility and clout can be married to the fact that nearly 140 countries are signatories to the founding treaty, yet the U.S., China, India, Israel, Russia, and all Arab nations (except Jordan) are all notably absent from the list. Regardless of one’s belief in the effectiveness or ineffectiveness of the ICC, the lack of participation by such global powers hurts the confidence of this judiciary body.
The perpetual challenge for the ICC, however, is not only how to harvest confidence in the international rule of law but also in the national rule of law. A Gallup poll underscores just how divided confidence in national judiciary systems actually is. Of the 123 countries surveyed, just over 50 percent expressed confidence in their national courts.
This statistic would undoubtedly dishearten early 20th century legal scholar and Harvard Law Dean, Roscoe Pound. Pound is remembered, among many other achievements, for his speech to the American Bar Association in 1906 titled, “The Causes of Popular Dissatisfaction with the Administration of Justice.” In this speech he warned the legal intelligentsia that dissatisfaction with courts is as old as law itself, but encouraged each to look forward to a near future when courts would be swift and certain agents of justice, whose decisions will be acquiesced in and respected by all.
What will it take for a court with no authority to execute warrants to become a swift and certain agent of justice? Will the ICC have relevancy outside the continent of Africa? How, if at all, will the court answer the injustices perpetuated by violent extremism in the form of atrocities by individuals associated with groups like Boko Haram and the Islamic State?
Currently, these are all questions with no answers. The court’s legitimacy can be bolstered by focusing less on cases of opportunity; or those in which the Office of the Prosecutor is able to collect the most evidence. The pursuit of justice should never be a pursuit of convenience. Rather, the ICC should be imaginative and strategic about how it cultivates relationships with signatory nations in collecting evidence and executing warrants.
Chief Justice Earl Warren once said, “It is the spirit and not the form of law that keeps justice alive.” This spirit of justice, guided by the allegorical scales, double-edged sword, and blindfold will continue to identify global injustices such as genocide, war crimes, crimes against humanity, and crimes of aggression. How justice is successfully implemented within the international arena remains to be seen.