The Dilemma of International Justice

Stewart M. Patrick, a former member of the State Department’s Policy Planning staff, notes the surge in developing international criminal law since the end of the Cold War, amid mixed results. In the case of the International Criminal Tribunal for the Former Yugoslavia, which will soon hear the case of former Bosnian Serb leader Radovan Karadzic, Stewart sees progress in helping countries like Serbia turn a corner. But in relation to Sudan, he notes fears that plans by the International Criminal Court prosecutor to indict the Sudanese president for crimes in Darfur will only prolong the conflict. "In some cases, it may be worthwhile to at least defer the question of prosecution to get an immediate end to the conflict," Patrick says.

The International Criminal Tribunal for the Former Yugoslavia has learned that the former Bosnian Serb leader, Radovan Karadzic, was arrested in Belgrade. Secondly, the prosecutor in the International Criminal Court has said he wants to bring an indictment against the president of Sudan for genocidal crimes. There are a number of international courts of justice now. Does this all stem back to the Nuremberg trials after the end of the Second World War?

Since the end of the Cold War, there has been a tremendous movement in the development of international criminal law. We’ve seen a striking evolution [in] efforts to try to end impunity for the most horrific crimes, including crimes against international humanitarian law and gross violations of human rights. In the past there were a number of efforts at an international level to ensure that perpetrators of these crimes were made accountable. The most famous ones, historically, were in the wake of the Second World War, as you mentioned, the Nuremberg trials, and then the tribunals in Tokyo. There are also a number of international legal instruments and treaties, for instance against genocide, which cover a lot of these crimes. During the Cold War, because of the standoff between the superpowers, it was virtually impossible to move forward at the international level in ensuring that impunity was something that could be addressed. And so this was largely left into the hands of national governments with quite mixed results. And you got repeated incidents of genocides and mass atrocities, including, for instance, in the killing fields of Cambodia.

What happened at the end of the Cold War in the early 1990s?

What you got suddenly was an opening to try to address these issues on a more systematic basis. With the new atrocities that occurred during the 1990s, and in particular, in the wake of Rwanda and in the Balkans, the international community, including the United Nations, moved first to create a couple of ad hoc tribunals that were under the authority of the Security Council—the International Criminal Tribunal For the Former Yugoslavia, on the one hand, or ICTY as it’s sometimes referred to—and then ICTR, or the International Criminal Tribunal for Rwanda. And those were set up in 1993 -1995.

There was a strong feeling that, in addition to having these time-limited, ad-hoc instruments, that there should be some standing international tribunal to deal with situations of genocide, mass atrocity crimes, crimes against humanity, ethnic cleansing, and related crimes, in situations, in particular, where the government where the crimes were committed either lacked the capacity or—importantly—lacked the will to actually police this themselves. And this momentum, driven in part by international civil society movements and human rights activists, culminated in negotiation of the International Criminal Court [ICC] in 1998, with the signature of the Rome Statute. That came into force when sixty members or states had joined in 2002.

President Clinton in 2000 signed this treaty, but then President Bush "unsigned it," right?

Exactly. The U.S. delegation in Rome actually had not endorsed the Rome Statute, but toward the end of his presidency, President Clinton signed it, without forwarding it on to Congress, where its prospects would have been uncertain to say the least. Now, the Bush administration came in and then Undersecretary of State John Bolton, who actually "unsigned" the Rome Statute, described this as his proudest moment as an international public servant. He and many other critics of the treaty argued that if the United States signed the treaty it would run the risk of being placed at disproportionate risk for unwarranted prosecutions and politicized prosecutions by a "rogue prosecutor." The argument here is that the ICC, unlike those ICTY and ICTR, is a stand-alone body. So the prosecutor has tremendous discretion in terms of who he or she brings charges against. Because of the globally deployed nature of U.S. military forces, the fear was that the United States was at a particularly acute risk of unwarranted politicized prosecution.

Do you agree with that perception?

My own view is that this fear is overblown because there is a rather narrow range of crimes that fall under the ICC, and they include basically war crimes, crimes against humanity, and genocide. And then, in addition, there are certain safeguards against unwarranted prosecution. The ICC is set up to be complementary as opposed to be a substitute for or to take priority over national procedures of criminal justice. So it only kicks in if, in the view of the ICC prosecutor, the country involved either lacks the commitment or the capacity to undertake a credible investigation of alleged abuses. Now, a big issue for critics of the treaty has been that this places the decisions of a U.S. judiciary under the judgment, in a sense, of an independent prosecutor. And that, to many critics, is seen as an unwarranted infringement on U.S. national sovereignty. And so that’s where things are.

But the United States supports using the ICC against Sudan, doesn’t it?

What’s emerged is a modus vivendi between the United States and the ICC, which is typified by U.S. support for a possible indictment against the government of President Omar al-Bashir. This suggests that there might be some sort of way to live with the court and in some cases even to support aspects of its work short of actual membership. And that was typified by the fact that the United States did not oppose the move in 2005 to refer alleged crimes of genocide in Sudan to the prosecutor in the International Criminal Court. Just to reiterate, the U.S. objection is not necessarily to an international criminal tribunal. It’s to an international criminal tribunal which it does not control.

How effective have these various courts been? Let’s talk first about the Yugoslav one. For many years, we had the president of Serbia and Yugoslavia, Slobodan Milosevic, on trial until he died. He was defending himself and the proceedings seemed to drone on forever.

That’s right. ICTY got off to a pretty rocky start. It was basically created while the war in the Balkans was ongoing and genocide was still occurring. And at the time, it seemed a bit like a half-hearted gesture, a substitute for real action to deal with this. It didn’t really have an impact in terms of moderating the conflict in Yugoslavia because, after all, the massacre at Srebrenica—in which seven thousand or eight thousand Bosnian Muslim men and boys were massacred in an alleged safe area—occurred after the tribunal actually had begun operating. And for the first years, it really faced a tremendous amount of hurdles. It didn’t have adequate funding. It didn’t have very strong political support from the international community. And most importantly, it lacked access to the major suspects. And even after the Dayton peace agreements ending the Bosnian war in 1995, NATO [North Atlantic Treaty Organization] delayed and sort of resisted arresting war criminals. I think that was probably because of their sense that this was an incredibly volatile situation.

Did the Milosevic proceedings have any beneficial aspects?

Over time, [they] had some benefit in demonstrating his culpability. It also, in some degree, set him up for ridicule. So in terms of delegitimizing some of the mythmaking that often occurs, and that these dictators tend to live off of in historical mythologies, it helped Serbia gradually turn the page. And you see a generational shift within Serbia as well. And you see this in reaction to Karadzic’s arrest as well, where some hard-liners of the older generation are still very angry. But many of the younger political generation realize that their future is with the European Union and that part of the ticket price for entry into the European Union is dealing with the aftermath of these mass atrocities and having some accountability for them.

Let’s switch to Darfur, which in a way is a little more complicated because here you have a sitting president being indicted. That’s really unique, isn’t it?

The indictment of al-Bashir has interestingly not elicited the same universal acclaim among members of the international human rights community as the arrest of Radovan Karadzic. And this basically reflects the fact that in Serbia, the war is well over. And there’s been a certain amount of movement towards consolidating that peace and even gradually beginning to move to some regional reconciliation. In the case of Sudan, the war is ongoing, and it makes very acute the trade-offs that often exist, particularly when the perpetrators of mass atrocities and those who are alleged to have masterminded them are at the same time engaged with the international community in rather meticulous and fragile negotiations to end long, drawn-out, protracted conflicts. And so the balancing question here is: How much impunity or amnesty is one willing to grant in order to halt further massive humanitarian outrages on populations versus the desire to get justice for past atrocities?

So the argument against an indictment is?

There are many who argue that by indicting Bashir, you risk getting him to dig in his heels and believe that he has nothing to gain and everything to lose by actually engaging in peace because, after all, he will simply be bound for The Hague. The problem is if Bashir reacts to this indictment and lashes out, there’s a lot at risk. There’s the potential that this could undercut any effort to reach a satisfactory resolution of the Darfur crisis. There’s also been the broader North-South Comprehensive Peace Agreement within Sudan that could be put at greater risk. And this is something that the international community has tried for the last quarter of a century to basically resolve. And yet, if he doesn’t feel like he has anything to lose, there’s no reason necessarily why he’s going to be accommodating on that front. There’s a hybrid-African Union-UN peacekeeping mission that is in Darfur, and to reinforce that requires, to some degree, the acquiescence of the Sudanese government.

That leads to the view some people have that you really have to wait until a conflict is over. But that, of course, doesn’t answer the public clamor for something to be done now.

These are unavoidable trade-offs that are going to require difficult, specific judgment calls. In some cases, it may be worthwhile to at least defer the question of prosecution to get an immediate end to the conflict. And this is something that the Security Council is now wrestling with. Article 16 of the Rome Statute of the International Criminal Court permits the Security Council to defer or suspend any prosecution by the ICC prosecutor for up to twelve months, and that’s renewable in the interest of peace. So what is occurring now is that the ICC judges are considering the ICC prosecutor’s indictment of Bashir. That’s probably going to take a couple months. During that time, one thing that could occur is for the Security Council to defer the indictment of Bashir for twelve months, and then conceivably renew that going forward. In some people’s view, that could create some leverage or incentive for the Sudanese government to actually begin to live up to its commitments with regard to stopping genocide and mass-atrocity crimes in Darfur. And because it’s renewable, it could, in a sense, be an ongoing incentive to the government.