The limits of international justice

In traditional societies conflict resolution is done by usually older men who are respected for their wisdom. As their respected status shows they are deeply rooted in their society and subscribe to its values.

In modern society judges are supposed to follow the written law. Judges have become rather anonymous people whose main accomplishment is often just finishing the right education. Yet it is not difficult to see that their verdicts are still highly influenced by the surrounding society. In racist societies verdicts of the discriminated minority tend to be harsher. And when society becomes more tolerant on issues like abortion this is reflected in the verdicts - even when the law doesn't change. Yet one thing has changed: there is now a bureaucracy behind those judges that determines who gets appointed and who gets promoted and this bureaucracy has considerable influence too.

But nowhere are judges less connected to society than in international justice. International judges are very dependent on those who appoint them and that makes their allegiance to neutral justice questionable. Recently this became apparent in two cases: the release of Sudan's president Bashir by South Africa - in spite of an extradition request by the ICC - and the 50 billion dollar verdict against Russia in the case brought by the Yukos shareholders.

Many African leaders face a similar problem that Bashir faces: insurgent regions. They may not like Bashir's bloody approach, but at the same time they know that it is not always possible to solve such problems bloodless. And so they consider that if they consent to Bashir's extradition now they might be targeted next - when Western politicians might find it useful. At the same time they have little trust in the judicial process at the ICC: they have seen the murky process in which judges are selected and they have seen judges schmoozing with Western diplomats. They also see that the US is supporting Ukraine in its use of scorched earth tactics and random shelling against the insurgence in its Eastern regions.

We see similar problems in the Yukos case. The excuse for submitting the subject to international judges and not leaving it to local judges in Russia is that some holding was stationed in Cyprus. But what would happen if the US banks and other financial companies that got a haircut in the financial crisis used their foreign subsidiaries as an excuse to take the US government to an international court? It is well known that many of the judges in those commercial cases previously worked for lawyer firms representing companies in similar cases. And when they quit as a judge these same firms may offer them a well paid consultancy job. Given this context these judges may know their laws well, but their neutrality is questionable.

Traditionally this impossibility of justice was solved by diplomacy. This approach certainly had its defects too. But one has to wonder whether the new approach is better.