Home The Washington Diplomat December 2011

New Era for International Justice, Though Verdict Still Out on ICC

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The constant drumbeat of ever-bloodier repression in Syria and elsewhere seems to belie the notion that this is the most just world we've ever known.

But advocates for international justice say that while the concept and implementation of their cause are works in progress, there have been a number of encouraging signs recently that the world is on the right track — and we may be on the precipice of a new era when bad actors have no place to hide.

Perhaps nothing in this regard was more significant than the birth of the International Criminal Court almost a decade ago. Since then, it's been clear that the ICC still has room to mature, but 2011 seems to be the year that it finally completes its transition from fledgling to flight, which will have broad implications to come and, some say, fits into an evolution that's centuries or more in the making.

Ruti Teitel, a professor of comparative law at New York Law School and a visiting professor at the London School of Economics, speaks of a major recent "paradigm shift" in her book, "Humanity's Law," released in October.

"What we're seeing is a turn away from a traditional emphasis in international affairs from state security to human-centered security — not just in terms of enforcement, but also in terms of protection — and a greater role for international law to play in this individualized enforcement," Teitel told The Washington Diplomat.

She writes in her book about a new set of international legal and conceptual norms that are increasingly being used to prosecute or prevent certain heinous crimes when the state is unable or unwilling to do so, superseding national sovereignty in the name of international justice.

In a year when autocrats from Libya, Egypt, Syria, Yemen and elsewhere seemed to be facing their own judgment day as the Arab Spring rolls forward, this shift toward accountability may seem patently obvious, but that belies just how drastically the international community's thinking about impunity has changed.

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Photo: Vincent van Zeijst
Since its inception in 2002, the International Criminal Court in The Hague has issued more than two dozen indictments, including arrest warrants for two sitting heads of state on charges of crimes against humanity, although it has yet to fully complete a trial.

In about a century, our notion of humanity has evolved from a time when atrocities like ethnic cleansing were all but considered the right of a sovereign state, says Teitel, to being considered a casus belli for international military action to protect people. In theory, a government can no longer turn a blind eye to certain egregious crimes or turn against its own people without international repercussions.

And more recently, Teitel points out, there has been increasing consensus that individuals who have committed such crimes should be held personally responsible on an international level, instead of in the past where the state might be punished at the end of a conflict but a war criminal might be free to walk unless the country of that person's citizenship was interested in pursuing prosecution.

Worldwide Reckoning

Of course, the Arab Spring has most vividly reinforced the perception that today, a dictator's days can be numbered. It has also given teeth to the Responsibility to Protect doctrine — whereby the international community has a responsibility to prevent genocide and other crimes against humanity when a state fails to do so — while sparking a contentious debate that R2P will be used to justify future foreign military interventions (also see "Will the Responsibility to Protect Usher in New Global Paradigm?" in the June 2011 issue of The Washington Diplomat).

But the push for accountability has been gaining steam for the past two decades, crystallizing in recent years — and not just in the Arab world. Notably, Latin America has been coming to grips with the region's legacy of political repression and military abuses.

In late October, for instance, Uruguay's Congress overturned an amnesty law that had protected officers from prosecution for crimes committed during military rule from 1975 to 1983. That same month, Brazil approved a truth commission to investigate abuses during that country's military regime from 1964 to 1985.

A movement in Argentina is unearthing the 1976-83 military dictatorship's systematic attempts to snatch babies from perceived enemies and raise them as their own, one of the more enduring traumas of that country's "dirty war." Likewise, a group of former Salvadoran soldiers is facing charges for killing six Jesuit priests in one of the most notorious acts of violence during El Salvador's civil war — a trial that was spurred by the soldiers' indictment in Spain under the country's universal jurisdiction law, which holds that some crimes are so grave that they can be tried anywhere.

The international community is demonstrating that there is no statute of limitations on some of the worst officially sanctioned sins — in particular genocide — a reality that governments are recognizing, albeit begrudgingly in some cases.

For years, the U.N.-backed tribunal in Cambodia has tried to prosecute top officials from the genocidal Khmer Rouge regime for war crimes but has been perpetually hamstrung by government interference. In contrast, an international tribunal based in Tanzania has made steady progress in tackling the vestiges of Rwanda's 1994 genocide, handing down dozens of verdicts over the years, including the first genocide conviction against a woman by any international tribunal.

After his arrest in 2006, former Liberian President Charles Taylor awaits his fate in a U.N.-backed court for Sierra Leone based in The Hague, where he faces war crimes charges of large-scale atrocities perpetrated by rebels under his command.

The arrest earlier this year of Ratko Mladic, the former Bosnian Serb general accused of massacring some 8,000 Muslim men and boys in Srebrenica in 1995, was a landmark step in the International Criminal Tribunal for the former Yugoslavia, where Mladic's one-time boss, Radovan Karadzic, is also being tried for genocide. Mladic's capture not only removed one of the biggest obstacles to Serbia joining the European Union, it turned the page on one of the bloodiest chapters in European history since World War II.

Granted, the wheels of justice may be slow (nearly 15 years passed between Mladic's ICC arrest warrant and his capture), but they're grinding forward on a scale never seen before. And those who commit the most world's most unspeakable acts are feeling the heat from what was once an unlikely place: The Hague.

Long Drive for Accountability

Many experts say this tidal change in accountability was solidified with the creation of the ICC, based in The Hague.

Efforts to establish such a body, where heinous crimes could be prosecuted without regard to national jurisdictions, began in the wake of atrocities committed during World War I. The epic conflict stirred a seeming awakening in people that some acts were essentially evil, even if they occurred during wartime, and that the people responsible should be held accountable after the conclusion of hostilities. Despite a nascent sense of internationalism, little headway, however, was made in establishing an international court for the purpose of trying these crimes until another estimated 50 million people died during World War II. It was the success of the Nuremberg trials and war crime tribunals in Tokyo that did more than anything to pave the way toward creating a permanent international criminal court. Still, while the 1948 Genocide Convention provided the framework for instituting such a body, Cold War politics and a reluctance among nations to submit to international legal jurisdiction caused several more decades of delay.

The next turning point was not until after the end of the Cold War and, poignantly, after two of the most brutally widespread tragedies since World War II.

In 1991, the International Criminal Tribunal for the former Yugoslavia was created, followed three years later by the International Criminal Tribunal for Rwanda. More than anything preceding them, these ad hoc courts created a precedence for how to mete out international justice by contemporary standards, and within the decade, 120 countries at the United Nations General Assembly voted for what would become known as the Rome Statute creating the ICC as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and aggression.

The ICC officially convened in 2002. For the first time in human history there was a permanent court that would administer justice based on internationally recognized concepts that prohibited certain actions, no matter the circumstances of war, with the infrastructure and mechanism to hold individuals accountable.

Despite its lofty ambitions, the court's track record has been mixed, though it has determinedly plowed ahead into unchartered territory. The ICC has generated more than two dozen indictments since its inception. It has issued arrest warrants for two sitting heads of state on charges of crimes against humanity: Sudan's Omar Hassan al-Bashir and Libya's Muammar Qaddafi — the latter now moot after rebels apparently took matters into their hands. Despite Qaddafi's death, the court is still reviewing allegations of crimes committed by all sides of the conflict, including Qaddafi loyalists, rebel troops and NATO forces.

The ICC has also charged six top officials in the Kenyan government of fomenting post-election violence in 2007 and 2008 that killed some 1,300 people — a pointed rebuke after the Kenyan government dragged its feet in investigating the bloodshed (a pre-trial chamber is expected to rule next month whether the six will move onto a full trial). The new government of President Alassane Ouattara in Côte d'Ivoire even asked the ICC to probe alleged abuses committed during that country's own bloody post-election upheaval, marking the court's seventh investigation in Africa and the first in a state that is not a party to the treaty that set up the court. As a result, the man Ouattara toppled, Laurent Gbagbo, who adamantly refused to concede defeat in the presidential election, could be the next one-time head of state in The Hague hot seat, joining an increasingly crowded court.

"When Argentina's Luis Moreno-Ocampo began work as the first prosecutor of the International Criminal Court in 2003, he had a few staff members, a gaggle of interns, and a superpower, the United States, that feared the court was out to politicize international justice," wrote David Bosco, assistant professor at American University's School of International Service, in the Atlantic magazine's most recent "Brave Thinkers" annual report.

"Eight years later," Bosco wrote, "the ICC has issued arrest warrants for two heads of state, earned the confidence of the United Nations Security Council, and largely won over Washington."

Africa on Trial?

Yet the ICC hasn't won over Washington to the point where it's actually signed onto the idea. Indeed, some of the most powerful nations in the world, including the United States, Russia, China and India, are not among the 119 signatories to the Rome Statute and thereby don't recognize the ICC's jurisdiction, mostly out of fear it would encroach on their sovereignty.

Ironically, many African governments that signed onto the court now complain that their continent is being unfairly singled out. So far, all of the officials or rebels charged with crimes by the ICC have in fact been African.

Moreover, the court lacks any police powers, forcing it to rely on member nations to voluntarily carry out its orders — a tall order. For example, a number of mostly African nations have refused to enforce the ICC arrest warrant for Sudanese President al-Bashir, allowing him to travel relatively freely and thumb his nose at the court.

Yet the fact that Côte d'Ivoire's government actually requested the ICC to investigate the country's bitterly disputed election, which led to a U.N.-supported military intervention, was a clear boost to the court's credibility — and a clear message to African leaders that flout the will of their people.

"Although after the genocide in Rwanda the United Nations had been embarrassed into adopting the 'responsibility to protect' doctrine — the idea that countries lose their sovereignty when they kill their own people — it had remained a dead letter. Partly as a reaction to the Iraq war, most governments have been hyperallergic to international interference in other countries' internal barbarisms," wrote Paul Collier in the Foreign Policy article "Bad Guys Still Matter."

"In Africa, autocrats saw that they could not just resort to skullduggery to win elections; they could hold their heads high while doing so," said Collier, an economics professor at Oxford. "In 2011, the international community was at last faced with actions that it found intolerable. In Ivory Coast its interventions, while far short of heroic, were sufficiently resolute to weaken Gbagbo to the point at which the modest military force available to the winning candidate, Alassane Ouattara, was sufficient for victory. One might quibble with the pace of intervention, but the amazing thing was that sufficient action was taken to trigger the regime's downfall. The world has drawn a new line in the sand. And it happened just in time: In the coming months Africa faces 19 elections. Incumbents will now be more cautious about overriding election results."

ICC prosecutor Moreno-Ocampo, who visited Côte d'Ivoire in mid-October, echoed that sentiment, saying his office would be closely monitoring election-related developments in other African countries, including neighboring Liberia and the Democratic Republic of Congo.

"Electoral violence can result in the commission of crimes falling within our jurisdiction. No one should doubt our resolve to prevent crimes or, if need be, prosecute individuals, as we are doing in Kenya and Côte d'Ivoire," warned Moreno-Ocampo, who'll be stepping down next year after a high-profile tenure that elevated the ICC's stature.

Only a Matter of Time

Of course, as with any penal system, law and punishments are imperfect deterrents for crimes. Moreover, the ICC's deterrent effect on dictators has yet to be proven, for two main reasons: the somewhat haphazard nature of its prosecution, and the speed — or lack thereof – of that prosecution.

International justice doesn't come swiftly. To date, not a single case at the ICC has actually been completed. Former Serbian President Slobodan Milosevic, for instance, dragged out the proceedings for five years and often made a mockery of the court, dying in 2006 before a verdict was reached and denying his victims closure.

Yet the tortuous pace of justice overshadows the ICC's landmark achievements, according to David Scheffer, a former U.S. ambassador-at-large for war crimes issues and author of "All the Missing Souls: A Personal History of the War Crimes Tribunals," out this month.

"International judicial intervention — a term I introduced to Foreign Policy in an article of the same name 15 years ago — has succeeded in its plodding way at humbling and bringing to justice one tyrant after another, along with their partners in genocide, crimes against humanity, and massive war crimes. Yes, international justice takes time; indicted leaders threaten and bully and defy tribunals as a matter of course (even though the bravado rarely lasts); and there is always the risk that an international prosecutor might scrutinize one of your own," Scheffer wrote in the FP piece "Justice League."

"But if international justice requires patience and some risk, it also holds more lasting rewards. Most of the surviving top leaders who orchestrated atrocities in the Balkans, Rwanda, and Sierra Leone in recent decades have been apprehended and brought to justice before international criminal tribunals," he pointed out, arguing that peace prevails in these places in part because "important historical lessons about justice and the rule of law have taken root, particularly among younger generations."

"I think what we've seen is a dramatic increase of expectations for justice because of the International Criminal Court," Richard Dicker, director of the international justice program at Human Rights Watch, told The Diplomat. "That to my eye is really the hallmark trend of the last 12 months."

Dicker also noted that with the recent capture of Bosnian Serb fugitive Ratko Mladic, the International Criminal Tribunal for the former Yugoslavia (ICTY) is entering a final phase.

"I think with the apprehension of all but one of its approximately 160 indictees at the ICTY, there is both a sense of closure and also a cause for encouragement as to the prospects for the permanent international court, the ICC. The ICTY provides rich lessons learned for the ICC as it furthers its missions and mandate, and absorbing and distilling the experience of the ICTY will be important for the ICC as the expectations and demands on it grow."

Dicker though cautioned that circumstances surrounding the ICTY were unique and not all of its findings would be applicable in other cases.

"There are lessons to be learned, but it's not a matter of cutting and pasting those lessons into other situations. There will be different situations and different challenges for the ICC, but I think there are trends and principles from the ICTY experience that can be put to good use by the ICC and its assembly of state parties that created it and supported it."

Kenneth Roth, executive director of Human Rights Watch, also cited the case of Mladic as proof that sustained international pressure does bear fruit, it just takes a while.

"International tribunals do not have police or military forces at their disposal. To achieve their promise of justice and deterrence, they depend on international cooperation. Absent military intervention (rarely a realistic or advisable option), capturing war criminals requires sustained, principled pressure on governments that harbor suspects," he wrote in the Foreign Policy article "No Safe Haven?" earlier this year.

"If the pressure is kept on, governments that safeguard accused official killers ultimately conclude the cost is simply too high," he added, noting that Syrian President Bashar al-Assad and Yemeni President Ali Abdullah Saleh "may have figured that they can hunker down at home and avoid future indictments that may be cast their way. But their calculations are only as good as the international community allows."

Arab Spring Accelerates Justice

The instability roiling the Arab world has galvanized the international community around the ICC and lent a newfound momentum to the court. Throughout the Arab Spring, protesters have called for entrenched leaders to be hauled off to The Hague. Likewise, the international community, wary of further military force, may increasingly turn to the ICC as a vehicle to squeeze recalcitrant Arab rulers while bolstering their opposition.

The U.N. Human Rights Council is currently investigating the Syrian government for excessive use of force and possible war crimes. (Al-Assad would also become the first leader outside of Africa to be indicted by the ICC if the case against him ever goes that far.) Libya was handled with lightening speed by ICC standards: It took less than three months between Libya's referral by the U.N. Security Council to the court and the issuing of indictments and arrest warrants for Qaddafi, his son and intelligence chief.

Also unprecedented was the international consensus on Libya. Even though several members of the Security Council, notably the United States, Russia and China, India and Lebanon, are not members of the ICC, the body unanimously empowered the court to investigate Libyan atrocities. And the subsequent indictments were used to help build a case for the NATO-led military intervention — further evidence that world bodies and non-member nations such as the United States have come to accept the validity of the court and its mandate.

Yet Libya also raises thorny questions about the ICC inserting itself into global crises while still figuring out its place on the world stage. "With the U.N. Security Council injecting the court into one of the year's biggest stories, the ICC may seem to have become an indispensable international player," said David Kaye, executive director of the International Human Rights Law Program at UCLA in a piece in Foreign Affairs in June. "But a closer look suggests that the ICC's sleek office building on the outskirts of The Hague houses an institution that is still struggling to find its footing."

"My concern is really about the Security Council using the ICC as a tool and really not having a clear idea of how it would support the case even after it referred it to the ICC," Kaye told The Diplomat. "One of the risks out there is that the ICC is increasingly seen as a useful tool in different sorts of conflicts, but only as a tool and not putting justice front and center as an end unto itself," he said.

Indeed, some legal scholars worry that using the court as a pretext for military intervention muddies its purpose, and moral prestige. Scheffer, writing in "Justice League" in late June before Qaddafi had been killed, argued that bringing the mercurial leader to the ICC would have sent a strong message that the United States was moving past its post-9/11 "cowboy behavior" and embracing the rule of law.

"[A] Tomahawk missile is no doubt a more expedient means of dispatching Qaddafi and his cohorts than a drawn-out courtroom battle in The Hague. But if there's one lesson to draw from the post-9/11 decade of conflict — defined as it has been by unilateral military action and an emphasis on force over law — it's that in war the means determine the ends to a not-insignificant degree. Arrest warrants from international criminal tribunals can delegitimize tyrants before their own people and certainly before the international community; unilateral wars have, if anything, had the opposite effect."

But others worry that ICC arrest warrants have a different kind of opposite effect: inducing autocrats to dig in their heels in the face of an impending trial that removes the possibility of exile, and thereby the incentive to peacefully relinquish power.

In the New York Times op-ed "Peace for All or Justice for One," Mark S. Ellis, executive director of the International Bar Association, acknowledges the inherent conflict between accountability and diplomacy.

"Diplomats would contend that the promise of immunity has proven to be a powerful tool in resolving political and humanitarian crises. The impunity originally extended to Taylor clearly spared further carnage in Liberia, while the I.C.C. indictment against Bashir exacerbated the human suffering when the Sudanese president in retaliation expelled Western relief organizations," Ellis wrote.

"Unfortunately, contradictions and competing agendas undermine the credibility and effectiveness of prosecutors and diplomats alike," he concluded, arguing that all players must coordinate to find "common ground for the common good."

Contradictions within the ICC itself also abound. To be effective, justice must be applied uniformly, but the court's detractors often point to the seemingly indiscriminate nature of its indictments. After all, the world is full of bad guys, but the scales of justice seem to tilt toward certain bad guys more than others. Why Qaddafi and not Kim Jong-il of North Korea or Robert Mugabe of Zimbabwe — or, as some have even suggested, why not former U.S. President George W. Bush for launching the Iraq war under false pretenses?

David Rothkopf, a visiting scholar at the Carnegie Endowment for International Peace, admits the court can be arbitrary and selective, but that doesn't mean it selects the wrong people.

"The international community singled [Qaddafi] out and has starkly and apparently unabashedly ignored far worse violations by Bashir al-Assad, to pick just the most egregious case of a double standard," he wrote June 27 in his "How the World is Really Run" blog. "That's the problem with the administration of international justice. It's not that the Qaddafis and the Mladics of this world don't deserve to end up in the slammer. It's not that they are not getting their just desserts. It's that justice is not applied equally around the world.

"The greater problem may well be that there are not enough judges, not enough jails, to accommodate all those who have abused their political power to commit the most unconscionable of crimes," Rothkopf concludes. "That said, there is no harm in starting with Qaddafi, provided we have the appetite and the intention to get to the others as soon as space on the docket and jail space allow."

Whether the world has the appetite to expand the ICC's docket remains to be seen. The court of public opinion is also far from settled. The ICC has demonstrated an increasingly assertive, and relevant, role in confronting the most egregious of crimes, but its maturity has been awkward as it lumbers through a minefield of issues, from allegations of bias to questions of effectiveness. Its list of indictments may be growing but the court has yet to conclude a single case.

While the ICC's place in the annals of history is far from assured, there's no doubt of the growing recognition that accountability is fundamental to any functioning society, including a global one. And for the first time in human history, a consensus is emerging that sovereignty is no shield against inhumanity, backed by a set of basic legal principles and consequences.

Experts such as Kaye, Dicker and Teitel say that while imperfect, the ICC is a giant step in a long march toward advancing international law to enshrine human rights and individual accountability.

"Sure, there are derogations and enforcement isn't perfect, and the path hasn't been completely linear," says Teitel, "but the fact that it's case by case doesn't undermine that normative development."

Anna Gawel, managing editor of The Washington Diplomat, contributed to this report.


About the Author

Luke Jerod Kummer is a contributing writer for The Washington Diplomat.


Last Edited on June 17, 2014