Bulletin of the Turkish Area Study Group
No. 7, Spring 2006
Küresel Adalet mi, Küresel İntikam mi? Dönüm Noktasındaki Uluslararası Cezai Yargı
(Global Justice or Global Revenge? International Criminal Justice at the Crossroads)
by Hans Köchler
translated by Funda Keskin & Erdem Denk
Ed. Türkkaya Ataöv, published by Alkim, Istanbul, 2005, pp 668
This book is an unabridged Turkish translation of the original massive compendium entitled Global Justice or Global Revenge? International Criminal Justice al the Crossroad by Professor Dr. Hans Köchler, one of the leading thinkers and activists of our time in philosophy and law. The English edition, brought out by Springer in Vienna and New York, was favoured with meaningful repercussions almost worldwide encompassing international conferences from Chicago to Libya and the Philippines. Virtually simultaneously with the Vienna printing, the text caught the attention of Türkkaya. Ataöv, a distinguished Professor of International Relations, who as the Editor of the Turkish version, cooperated, in its rendering this erudite work into his native tongue, with two able young scholars of the Faculty of Political Science of Ankara University. The outcome is undoubtedly an academic product qualified to lock horns with the best in the developed world. The Turkish reading does justice to the author, who is well-known for his epoch-making publications for the benefit of a world order based on legality.
It should be emphasized once more that the author consistently and forcefully championed practical activism as well as scholarly research, for the ascendancy of democratic principles, the revitalization of international law, and the reconstruction of an alternative world society. As enumerated in Professor Ataöv’s presentation chapter (pp. 9-20), Professor Hans Köchler of Innsbruck University (Austria) devoted several books to the study of democracy at the global level. Some of them entail his timely suggestions for UN reform. In various other publications, he urged alternative international economic and information orders. They constitute an impressive list of captivating and refreshing publications. His latest work, now translated in full into Turkish, is an inspiring guide for those attracted to the evolving concept of universal jurisdiction. Presenting a valuable overview of past efforts, since the first proposal in 1872, towards international criminal justice, the author defines and elaborates on the measures for international law enforcement. He faithfully records that it took more than a century to reach the 1evel of the 1998 Rome Statute of the International Criminal Court (ICC), on which the author dwells exhaustively. This book is so far the only treatment of the subject - thoroughly and most competently. Going back to he historical background of the concept of “humanitarian intervention” (intervention d'humanité) Professor Köchler notes that a specific doctrine on this subject was developed in connection with Europe’s Oriental policies during the 19th century (pp. 409ff). It was a kind of “moral” justification for Europe’s repeated interventions on Ottoman territory. For instance, the French expedition in Syria (1860) found a “legal validity” in its armed intervention. This “right” was claimed in a series of interventions on Ottoman lands in Greece, Crete, Armenia, and Macedonia. The Treaty of Berlin (1878), concluded between the European Powers and the Ottomans, obliged the Turks to apply specific legislative and administrative measures, which meant permanent control over Ottoman domestic rule. The author correctly notes that such intervention remained an integral part of European foreign policy for decades to come. The book concentrates, however, on the inherent potentialities and the imposed limitations of the International Criminal Court, which started to operate on 1 July 2002. Presenting a historical panorama of previous efforts, the author underlines that even the Nuremberg and the Tokyo trials, which established new standards of criminal responsibility, nevertheless signified victors' justice. The victors, transformed into judges, set up the tribunals and the terms of prosecution aimed only at the defeated parties. Professor Köchler likewise considers the creation of the international tribunals for the former Yugoslavia and Rwanda, allowing the de facto control of the United Nations Security Council (UNSC) over them, to be discriminatory, subjecting in the process legality to power politics.
The author correctly underlines the value of the separation of powers for an international rule of law. But he also notes that the Special Court for Sierra Leone, empowered to look into the crimes committed during the civil war, in which the great powers had no interest in one way or another, met the basic requirement of separating legality from politics and enjoyed advantages over the other ad hoc courts. This example of internationalism and independence being an exception, Professor Köchler emphasizes that global peace and security can prevail only if an efficient system of worldwide criminal law for all is accepted. The ICC is the kind of supranational, not only international and intergovernmental, authority in that direction. A fully independent international court is a sine qua non for global justice. Otherwise, the world will rest on the global revenge of the most powerful. The author rightly concludes that no more ad hoc tribunals need to be established by the UNSC.
The judicial prerogatives of the ICC are not subordinated to the executive functions of the UNSC. Its 18 judges are elected for nine years by secret ballot of the Assembly of States Parties. Still, the ICC has to protect its independence against the most powerful nation states and the UNSC. The author is predictably critical of the efforts of the United States to change the ICC’s newly-won authority. The US initially voted against the Rome Statute, later withdrew from it, soon (2002) adopted the American Servicemembers' Protection Act, and made bilateral agreements to guarantee the non-extradition of American citizens to the ICC. Furthermore, the UNSC, under US pressure, acted ultra vires and altered the meaning of Article 16 of the Rome Statute and limited the scope of the new court. The US, then, not only refused to recognize the ICC’s jurisdiction over its own citizens, but also extended its own supervision to the territory of third parties. Professor Köchler’s book is a comprehensive and accurate investigation of the need for global justice and the ICC’s place in this search.