This article was originally published by Néstor Restivo on the Tektónikos website. Read the original here: [URL].
The International Criminal Court and discriminatory justice.
Eugenio Raúl Zaffaroni is one of Argentina’s most prominent jurists and enjoys a widely recognized international career. A former judge of the Supreme Court of Justice in his country, legislator, and member of the National Constituent Convention, he was also a judge of the Inter-American Court of Human Rights and has a highly prestigious career in teaching, consulting, and research on criminal law in Argentina and many other countries.
In light of the appalling crimes in Gaza, Iran, and other territories, where those responsible flaunt the most inhuman impunity, Tektónikos spoke with him about the role played—or that should be played—by the International Criminal Court (ICC) or other mechanisms of universal justice.
—What was the purpose of creating the ICC? What were the motivations behind its origin?
—Strictly speaking, cases of crimes against humanity opened up what is called universal jurisdiction, when the country where the territory is located could not or would not prosecute the criminals. It was based on this principle of universal justice that Spanish judge Baltasar Garzón requested the extradition of our perpetrators of genocide. This principle is very generous, but at the same time quite dangerous, because it can lead to arbitrary situations and even generate a certain amount of chaos. At the turn of the last century, the Rome Statute and the ICC came to bring some order to this; they had as precedents ad-hoc tribunals created by the United Nations based on the powers granted to the Security Council by the Charter, as well as mixed tribunals with national and international judges.
—But the ICC has faced criticism for focusing almost exclusively on cases in Africa. Could this be evidence of a sort of ratification of colonialism? What is your opinion on this?
—Punitive power is always exercised selectively; that is, it falls upon the most vulnerable. One only needs to look at the composition of any prison population to see that those who go to jail are the most socially and racially vulnerable, and that those close to power generally enjoy impunity, unless they lose out to another powerful figure and are thrown to the criminal justice system. This does not change when punitive power is internationalized; it remains selective. I don’t know of any cases of innocent people being convicted—that is, of international “lawfare”: those convicted were criminals, but vulnerable ones.
—Let me give you other examples. Cases like the massacres in Iraq by the US or in Gaza by Israel seem beyond its reach (although I understand South Africa’s complaint was accepted). Why does this double standard exist and how can it be remedied?
—This is related to what I just told you: the invulnerable are never reached by punitive power, unless they stop being invulnerable because they lost. For the moment, and in the current context of global power, I see no possibility of remedying this situation: jurisdiction and judges must be backed by political power, whether national or international, and the ICC, in the case of the currently invulnerable, has no political power to make its decisions effective—not to mention that the powers of the invulnerable did not even ratify the Rome Statute.
—So how should the ICC act in the face of decisions by, for example, Donald Trump or Benjamin Netanyahu?
—Let’s see. It’s not just about the ICC, but about all international law, which is affected by the bluster and aggression of these characters: international law is collapsing. Let’s imagine—God forbid—that Hitler, the most terrible genocidist in history, were to be resurrected and, faced with Trump’s assertion that he is going to destroy a civilization, reacted by noting that not even he made such a claim: “das ist zu viel!”, he would say, “this is too much.” How many homicides is Mr. Trump responsible for? How many is Mr. Netanyahu? What happens to the law? Are heads of state the only ones who can kill with impunity from a desk? Does law exist when everyone does what their strength allows them to do? Is “international morality” that of Mr. Trump himself, as he has said? Nietzsche’s “Übermensch” (superman) couldn’t have said it better! (except the poor man ended up talking to a horse).
—Could there be a decline of the ICC within the framework of the exhaustion of other institutions of so-called “global governance,” stemming from the complete disregard for international norms promoted especially by the US?
—I cannot become an international fortune teller. What we are experiencing, with the accelerated deterioration of the United States, the weakness of Europe, and the emergence of new powers, is a civilizational decline.
—And in that framework, do you believe the ICC should be replaced by another body, be reformed, or address objectives that include criminal matters (or in parallel) issues related to the need for a new world order?
—Again, I cannot be a seer. I can say this: the United States, which was historically taken as a model of a republic and democracy, now seems to be becoming a model of a single party—that of the conglomerates and the military-industrial complex—falling rapidly down the slide that Eisenhower warned about sixty-five years ago. I don’t know if this is a civilizational crisis, because a “crisis” is a turning point and, in truth, we don’t know if we have hit that point or if we are still in free fall, although I lean toward the latter.
—So, what do you see as the best way to frame international criminal law in this situation? —Look, “chaos theory” itself tells us that chaos is unstable and tends to organize itself. Whether based on this or as a matter of faith, the truth is that I do not believe humanity will go extinct due to the power decisions of pathological characters. Perhaps the current bewilderment is largely due to the fact that we never thought seriously about the history of this civilization that can no longer hide its decadence: this civilization was always criminal and has many millions of deaths to its credit, from our indigenous peoples and the millions of enslaved Africans, to the Opium Wars, the colonization of Indonesia, that of India with its famines and plagues, that of Africa with the Belgian Congo (though not only there), that of Oceania which almost wiped out the population and, as a “civilizing” crowning achievement, the two brutal inter-imperialist world wars—and I’ll stop there so as not to bore you. Perhaps the time has come for a new civilization, one that is not criminal or at least less criminal, and therefore a new order that responds to a minimum of reason. I never forget what Martin Buber said: humans are not rational, but with a little effort, they can become so.
This article was originally published by Néstor Restivo on the Tektónikos website. Read the original here: [URL].