15 Apr Do We Need an International Court for Nuclear Proliferation? Nope.
During the recent “nuclear summit” in Washington, Dutch prime minister Peter Balkenende proposed the creation of a new international tribunal to enforce and punish violations of nuclear non-proliferation agreements. Putting aside the fact that this is a blatant effort to put another international court in his hometown (the Hague), I agree with Prof. Göran Sluiter that this is a dumb idea. It is a great example of how creating an international tribunal or an international institution is often a substitute for doing something useful or important on an important policy question. As Sluiter points out, we already have plenty of international courts.
Balkenende explicitly mentioned the reinforcement of the international rule of law as a basis for the creation of the new tribunal. In itself, this is an admirable goal. However, nations can already be held accountable in the International Court of Justice (ICJ), which has arbitrated international conflicts for almost a century and has long been a trusted advisor to the United Nations.
The issue isn’t any potential court, venue or jurisdiction – it’s about enforcement. Time and time again enforcement is left up either to the arbitrary actions of member states or to the Security Council, which will only act when it’s not against the ‘strategic interests’ of the P5 (and how often is that?)
Actually, they already have a tribunal for terrorism, the Special Tribunal for Lebanon. If they wanted to rely on the investment made so far (about 100 mln dollars), they could just expand its mandate to terrorism as a whole (why just nuclear terrorism?) and modify the composition of the benches (which is now partly Lebanese).
In this type of matters, you need law enforcement but also credible venues to bring criminal charges – a tribunal like that might help tackling US problems for Guantanamo detainees, India-Pakistani problems for the Mumbay attacks etc.. It would create a judiciary to enforce the recently developed UNSC ‘legislative’ powers in terrorism matters. It might attempt to strike a balance between fair trial and the specificity of terror-related trials.
Of course, many people will rely on some of the STL features (in absentia trials, written and ‘secret’ evidence…) to say that Tribunal is not up to the job and would not be acceptable. These are of course details; once you agree on the principle, these details can be easily sorted out..
[…] Meanwhile, note that the ICC was not evoked this week by a different issue entrepreneur where it actually might have been. At the recent nuclear summit, Dutch prime minister Peter Balkenende proposed usingtrials for states who proliferate nuclear materials. Only he’d like to create a new court altogether. This is interesting, since nuclear non-proliferation is the kind of crime that might actually make sense to try at the ICC, as it’s generally undertaken by specific individuals and the NPT might be considered part of existing humanitarian law. (Julian Ku has some helpful dissenting points.) […]