Humanitarian Ethics and the ICC

Yesterday, I had a dream. No, it was not a dream, not even a daydream, but more like a vision. At the same time, it was not a hallucination because I knew it was unreal. In my study on the second floor, there are two large picture windows overlooking the backyard. One of the effects is that when I participate in webinars or zoominars, it is hard to make out my face on the computer screen because the room is so bright even on a cloudy day.

I was standing by the window looking out over all the backyards on our block as the houses marched down the cross street and up the next block house after house after house. There was no one in any of them. It was dusk, but even then, there were no lights. I did not have lights on either and, as if I was in a webinar, I myself appeared and felt like a ghost – assuming a ghost can feel.

But there was a party going on in my own backyard. Not a human party. Animals were gathered – three squirrels, one with half its fur missing from its back, a rabbit, a fox, a porcupine, a whole family of racoons, a coyote and a number of birds, a bluebird, three red-crested cardinals, and a hawk that lived in a nest high in the tree across the road and usually preyed on the infant rabbits of my mature one.

But here they were partying together. It was as if I was watching a Disney movie. They were chirping and squeaking and had growling grins. They were all clearly celebrating. I do not know how I learned it, but a virus had wiped out the human population on earth. The animals were celebrating the elimination of their greatest enemy – the most enormous monsters of their dreams that not only were the main ones endangering their lives, but the species that threatened their whole ecological niche. It was no surprise that there were celebrations. Even the trees as they blew in the wind and talked to one another through their roots seemed to be freed up from the fear that the Premier of British Columbia would be authorizing the cutting down of trees that were one thousand years old. And though I am a human, I was drawn to celebrating with them.

I was aware that my preoccupation over the last decades had been the ethics of war. Before that period started over a quarter century ago, I had been concerned more with the ethics of humanitarian disasters, the suffering of people from freaks of weather, from floods, from earthquakes, from famine. Most importantly for me – refugees from both natural disasters but mostly man-made ones. Perhaps it was the influence of Passover. Or it could have been Hurricane Hazel in 1954 when my mother came home from work on Lawrence Avenue in the Simpson’s office there and had to wade through water up to her waist. We lived on Ranee Avenue then; it was the highest point in the area, so our basement remained dry. But my mother was drenched and told us how, in the current of the water, she feared she might be swept away.

Toronto had experienced a Category Four storm usually reserved for the Atlantic seaboard of Florida, Georgia and the Carolinas or the states of Louisiana and Texas on the Gulf of Mexico. Trees had been uprooted everywhere. Houses floated down streets, especially when they had been built in Toronto’s famous ravines. Winds had roared through the gaps between the homes at over 100 kilometers an hour. Almost 12” of rain fell in the two days after my older brother’s eighteenth birthday on 12 October. More than eighty people died.

However, my concern for decades had been human not biological life, human suffering and its relief, particularly the suffering of people in flight from horrors and terrors and desperately seeking membership in a society in which they could be protected. Was that narrow minded of me? Why had I largely ignored environmental ethics? Why even in my preoccupation with human life, did I focus on victims of war even more than humans as uprooted byproducts of those same conflicts?  Peter Singer’s concern with animal rights had always seemed a strange aberration for ethics. And though I admired my two youngest sons who were so preoccupied with the ethics or lack of ethics that led to the destruction of habitats, I did not share their priorities.

Thus, periodically I get a glimpse at how relatively narrow my ethical concerns had been. I was focused on war – now a great deal on cyber warfare that could almost instantly destroy our ability to run transportation and hospitals and cause extreme devastation, even though these were often referred to as sub-threshold wars. Peripheral wars, proxy wars, civil wars and limited wars had become my beat.

I had been in the field in Lebanon after the Israelis invaded on 6 June 1982. I was in Beirut when the IDF started shelling the very camps where I was interviewing Palestinian refugees. I was on a train travelling into the north of the Jaffna peninsula where the Tamil Tigers of Tamil Eelam had taken on the Sinhalese army of Sri Lanka when the train tracks were blown up in front of us and we were transferred to buses. I had not yet been arrested by the army for coming into an area where Westerners were banned lest they discover the ruthlessness of the war being fought there. I had counted over 17,000 corpses laid out on school benches and recovered from a mass grave in Rwanda. The horrors of the war in Somalia and in Darfur in Sudan as well as in former Yugoslavia were preoccupations as we tried to create an early warning system for East Africa to detect and avoid imminent violent conflicts.

For over forty years, my preoccupation had been humanity and human suffering and the relief of such suffering. That is where I had placed my moral weight. Only in the last decade have I become somewhat aware of how I had marginalized protecting the life and health of this small spinning planet.

Yet, relatively speaking, the suffering of all these “small” wars was nothing in comparison to what happened in World War II. Only the Rwanda genocide of 800,000 Tutsi and moderate Hutus came close. In the Syrian War, for example, as horrific as it has been in deaths and destruction and the production of displaced persons – 13 million, half internally and half as refugees – and where almost two-and-a-half million children have no schooling, it could have been far worse. As insensitive as it may seem to write this, although over a half a million died, 80% were combatants. Only – and I say this relatively and not indifferent to how great the suffering was – 117,000 non-combatants were killed.  

The Yemen War is the greatest current humanitarian disaster. There, it is critical that humane principles be applied as much as possible to the protection of civilians and bystanders and the proper treatment of military prisoners and that banned weapons not be used. It is hard to say it, and even though Assad used poison gas on his own citizens, the standards for fighting a war given the presence of an international ethical and legal regime for observing such conflicts, have improved.  War crimes and crimes against humanity have actually decreased, even as, at the same-time and in real-time, global awareness of them has increased.

The massive famines that ravaged Somalia seem also to have receded. The recent aid campaign for Syrian displaced persons fell far short of its goal – one-third I believe – but still over four billion dollars had been pledged. Humanitarian aid is big business and that has made a significant difference. Part of the reason is that ethical norms are increasingly applied to these situations worldwide from East Timor to the Gaza Strip. Starving a civilian population – a standard practice prior to the nineteenth century – is no longer acceptable.

But what about prevention and not just mitigation? The early warning systems created in East and West Africa barely function. The doctrine of the Responsibility to Protect (R2P) which Canada led in creating to lead off the twenty-first century and which the UN endorsed five years later, is more noteworthy as a document than any actual practice. Does anyone really expect anything to be done for the Uighurs of northwestern China even as the world increasingly shines a spotlight on the disaster?

Perhaps it could be worse. Perhaps, though China will not admit it, policies will be quietly modified. But what about Myanmar? It is not a great power. Surely the West could easily bring the economy under the control of the military now to its knees. But at what cost to the rest of the population? The problem now is targeted sanctions and acute intervention that is subtle and nuanced. But this is then very unsatisfactory in terms of public education where the general impression is that “nothing is being done.”

We still deal with results, not causes, with mitigation rather than prevention. That is where our maximum efforts are focused. And even there, in fact, especially there, some situations are magnified as if being observed on earth from a radio telescope that was intended to look at the total sky and the whole universe. While accountability and transparency have been our goals, more frequently we see extreme distortion and disproportionate attention ironically when a fundamental principle of ethics applied to such situations is proportionality.

And that is not simply a matter of bias. For impartiality – not neutrality -is one of the most important international norms. I am not required to be neutral in my approach to the Israeli-Palestinian problem. I love Israel intensely. It is where two of my grandchildren live. Both served in the IDF. They now are parents of four of my great grandchildren. But my love is concerned not only with their biological and physical safety, but for the way that I want them to be treated and, even more, how I want them to treat others.

The government of Israel is flawed. The governing structures of both Gaza and the West Bank are even much more flawed as they continue the hundred years of warfare between Arabs and Jews in the Middle East. But there are many signs that this long war is nearing an end. And the way it ends will be crucial for the way in which Jews and Palestinians live together and interact in the future. That is why the solution must be carried forward guided by ethics and not just interests and existing relations of power.

Which brings me to the International Criminal Court, the ICC. Criminal courts are concerned with bringing individuals to justice. They are not concerned with establishing the conditions for just solutions. The ICC has been a significant advance in the international legal system by replacing single purpose international institutions with general ones so instead of a Rwandan genocide court of justice in Arusha we have the benefit of a universal global-wide system in The Hague. 

This followed the lead of many innovations and changes internationally in other areas – for example as the universal organization, the United Nations High Commission for Refugees (UNHCR), replaced the single situation focused organizations like UNRWA, the United Nations Relief and Works Agency for Palestine Refugees that tried to push for a permanent solution but could not, in part because its mandate was to be a relief and works agency rather than one focused on resolving the crisis.

But we have also failed to learn. While Trump simply cut off UNRWA funding and Biden recently restored humanitarian aid both to the Palestinian Authority and UNRWA, and such aid should be made long term so that forecast and long-term planning can be put in place, there was a failure to make such aid conditional upon finding a permanent solution in the next five years and on making reality rather than wishful politics the determinant of humanitarian aid.

For one of the downsides of any institution, whether single purpose or universal, is that its increasing collective weight creates an inertial force that undermines creative solutions that make the welfare of the individuals affected the first priority rather than the strategies and objectives of politicians.

The ICC is faced with the other side of that challenge in its desire to make the ICC as exempt as possible from political forces. That is an aspiration. However, in its priorities, in its concentration, in its actual practices, the ICC has proven that it cannot be immune to the political culture of our time. Biases not only creep in, but they glare away as neon lights. The problem is how to recognize this and still uphold the objective of advancing the cause of criminal justice on a global scale. At the same time, in such a quest, the larger and more important goal of positive justice, for the recognition of the rights and dignity of every human on this planet, must not be undermined by the efforts of the ICC and the pressures upon it, even as it is not mandated to deal with state but only with individual criminality.

COVID-19, the revolution of the digital world displacing the analog one, has created overwhelming challenges, but also new possibilities for the resolution of conflicts and crises. The ICC may be an advance, but it is an advance at the end of the analog world and has little to contribute to alleviation and prevention, the major foci of the new digital order.

For example, one of the new international ethical norms is inclusion – that is relegating dealing with and resolving situations as much as possible through local and national institutions. However, the ICC, which is supposed to operate only when national systems of justice are inoperative or ineffective, is now more generally at war with such national systems. Instead of conducting investigations to help raise the standards and the effective operation of such systems and even instigate their creation, the ICC seems more concerned with shaming states for their inadequacies and, thus, focusing more on defective systems than where systems are absent altogether. Further, there is the very great danger that its moral and legal status may be used to undermine and inhibit the development of a much higher level of ethical and moral achievement.  

“Do no harm” has become the overarching global moral principle of our time. But it is impossible to apply since any system or institution has both good and bad results and the benefits and downsides weighed against one another. We will always do some harm. Do no harm is an impossible goal and can induce paralysis. However, do less harm can be a more effective guiding principle. That applies to the ICC. In taking on a case, in initiating an investigation, and, more specifically, in the very way it does so, the ICC must ensure that the outcome will be a greater good with the least harm possible.

I am not sure that the ICC is yet up to that task.


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