Erga Omnes

As an alternative to universal jurisdiction and other international justice mechanisms, the Kuala Lumpur War Crimes Commission has prosecuted Bush and Blair for international crimes in the Iraq war.  Following two years of investigation and four days of hearings, staffed by well-known participants (including Francis Boyle serving as a prosecutor and Arundhati Roy as president of the tribunal), the tribunal reached a unanimous verdict last week, finding both former heads of state guilty.

Distinguished legal scholar Richard Falk offers a bold analysis, well worth reading, of the latest civil-society tribunal and its significance for international law.  Juridical events such as these, Falk says, reveal what no one admits:

The world system of states and institutions was unwilling to look a particular set of facts in the eye, and respond effectively to what many qualified and concerned persons believed to be a gross injustice. In this regard, there was an intense ethical and political motivation behind these civil society initiatives that invoked the authority of law. But do these initiatives really qualify as “law”? A response to such a question depends on whether the formal procedures of sovereign states, and their indirect progeny – international institutions – are given a monopoly over the legal administration of justice. I would side with those that believe that people are the ultimate source of legal authority, and have the right to act on their own when governmental procedures, as in these situations, are so inhibited by geopolitics that they fail to address severe violations of international law….  Beyond this, we should not neglect the documentary record compiled by these civil society initiatives….

This recent session of the Kuala Lumpur War Crimes Tribunal offers a devastating critique of the persisting failures of international criminal law mechanisms of accountability to administer justice justly, that is, without the filters of impunity provided by existing hierarchies of hard power.