When studying the formation and authorization of the International Criminal Court, it is easy to debate whether or not the court was truly designed to enforce the moral principles of the organization or to expedite the process of codifying Western ideals into international law. Despite the fact that Western legal systems are based on establishing an impartial body, it is still a a game of winner takes all.
Looking back at the Nuremberg trials, it is difficult to argue that the prosecutors ignored several violations committed by Allied forces during World War II. In fact, since many British and American prosecutors made attempts to hold the Soviets accountable for their actions, the trials could be seen as one of the original pivoting points of Western moral justification in the twentieth century. In David Bosco’s Rough Justice, he notes several cases where officers serving Axis powers were found guilty of crimes that were also committed by Allied forces and claimed that many of their “post-war tactics were morally and legally dubious. ” (https://blackboard.american.edu/webapps/portal/frameset.jsp?tab_group=courses&url=%2Fwebapps%2Fblackboard%2Fexecute%2Fcontent%2Ffile%3Fcmd%3Dview%26content_id%3D_2558442_1%26course_id%3D_111529_1%26framesetWrapped%3Dtrue) The Nuremberg trials set a high precedent to how states behave after the conclusion of great atrocities, but since it was so polarized, it is difficult to say that they contributed much to preventative action towards “crimes against humanity.”
This precedent became even more relevant in the 1990s after the Cold War had dissolved and the world was forced to reformulate state behavior towards conflict. Between 1990 and 1995, millions of people were killed between the genocides in Rwanda and Bosnia. In both cases, ad hoc courts were established to hold the persecutors accountable for their actions. However, neither of these courts received much international support, which was detrimental to the functionality and authority of the decisions made in the courts. In the case of Rwanda, the post-genocide government in Rwanda, run by President Bizimungu and the Rwandan Patriotic Front (RPF), wanted to participate in the trial process to ensure that the genocidaires faced the harshest punishment possible. More than a decade after the trials started, Human Right Watch raised concerns in a letter to the Rwandan Tribunal vying for the prosecution of RPF officers in order to protect the authority of the court (http://www.hrw.org/news/2008/12/12/rwanda-tribunal-should-pursue-justice-rpf-crimes). These types of concerns show that the winners are still in control of where law should and should not be applied, even in cases where they are not directly responsible for coordinating the courts in control.
The only question left to answer is whether or not this characteristic of “winner takes all” only applies to ad hoc courts or to the whole basis of legal process. This is where the ICC comes in.
Unlike the ad hoc courts that have been utilized to respond to conflicts in the past, the ICC has the ability to establish an international regime against criminals. The court was designed to function as an apolitical body that would be protected from outside influence, but, as Bosco outlines in his book, the authorization of the court is a very political process that will regrettably be controlled by world powers such as the US. When looking at the future of the court as it makes its way through its second decade of existence, it will be important that the ICC establishes and maintains the balance between political and apolitical applications of justice. In the current state of world order, it is impossible for any institution to function without the permission of major powers, but the last thing the world needs is for international norms on justice to backtrack their progress on establishing impartial courts. The ICC shows great promise, but only time can tell us how far that promise will go.