Judging the War Crimes Tribunal
Less than two decades ago the concentration camps, mass killings and rapes in Bosnia sent a blunt reminder that a modern era of genocide and crimes against humanity—with its millions of victims in Mao's China, Stalin's Russia, Nazi Germany and Cambodia under the Khmer Rouge—was not over. Bosnia was followed by Rwanda in 1994. By the late 1990s the United Nations was propelled, or shamed, into action. War crimes tribunals were established to try those responsible for the carnage in the former Yugoslavia and Rwanda; courts for Cambodia and Sierra Leone would come later. The country-specific courts proved to be templates for something much more ambitious: a permanent international court to try the perpetrators and masterminds of atrocities.
In 1998, after long negotiations, 120 nations adopted the Rome Statute (named for the city of its birth), and the International Criminal Court (ICC) came into existence. Four years and sixty country ratifications later, the court was preparing to open for business. In 2003 a prosecutor was sworn in: Luis Moreno-Ocampo of Argentina, a human rights lawyer and prosecutor whose résumé includes bringing to trial senior Argentine junta commanders from the period of army rule in the 1970s and early '80s. More recently he had been a visiting professor at Stanford and Harvard.
For an institution of this historic significance and complexity, the process of establishing the ICC was accomplished in record time, driven by events. And there were ripple effects. When the court began issuing arrest warrants for those charged with being most responsible for mass crimes—in Sudan, Uganda, the Democratic Republic of Congo—the idea of justice beyond the manipulative reach of autocrats and warlords began to have an impact on public perceptions. In Gulu, in northern Uganda, the court has become part of the conversation about what to do with the leader of the catastrophically brutal Lord's Resistance Army, Joseph Kony (who is under an arrest warrant), if and when he is found. In Kenya the possibility of the court's involvement in determining culpability for political violence in 2008 is fiercely debated. African nations have been active in invoking the court's jurisdiction. Kenyan environmental activist and Nobel Peace Prize winner Wangari Maathai told the Inter Press Service in June that the ICC is the only hope for abused citizens everywhere.
In the United States, where the court is not very well known, the study of international criminal law has nonetheless grown—some say exponentially—in leading law schools. New York University, Columbia, Georgetown and Duke are among those with faculty specialists offering courses and writing papers that expand thinking about the contemporary war crimes courts. New links are being forged between human rights law and international criminal law.
"There's been a sea change in the last ten to fifteen years," says David Scheffer, US negotiator in the creation of the ICC and now a professor at Northwestern Law as well as director of the university's Center for International Human Rights. "International criminal law as a course offering was extremely rare until the late 1990s. Now almost every law school that is a major law school in this country has to offer international criminal law to be credible." Undergraduates, too, are signing up for courses that look specifically at genocide in Rwanda, Balkans atrocities or brutal African civil conflict, Scheffer adds. "As students pursue both international criminal law and international human rights law, the two dovetail with each other very nicely."
In the real world, however, the ICC is struggling with the delays and setbacks that are to be expected when scores of countries with differing opinions and political cultures are asked to live up to the treaties they sign. Similarly, in the regional tribunals, for example in Bosnia and Cambodia, there have been long delays and a widespread feeling among the population that those who suffered are not benefiting from the trials.
Two high-profile cases illustrate these quandaries. No country—least of all in Africa—has tried to detain President Omar al-Bashir of Sudan, wanted in arrest warrants on charges of war crimes, crimes against humanity and genocide in Darfur. The African Union opposes the warrants. When Bashir visited neighboring Chad in July, where the government was treaty-bound to arrest him, he was welcomed officially as "a valued friend." A visit to Kenya, whose government is also an ICC signatory, followed. Kenyan officials said that African Union decisions trumped the court's demands.
There are also diplomats and officials in the global North who argue that the pursuit of Bashir and other prominent Sudanese officials is no way to get lasting peace in Darfur, where the UN says at least 300,000 people have died. They point to the success, so far, of the negotiated settlement of another dispute in Sudan, between its Arab-Muslim North and Christian and animist South, which is scheduled to culminate in a referendum on southern independence in January. Scott Gration, the Obama administration's special envoy to Sudan, has opened rifts between himself and Congress—and reportedly between himself and Susan Rice, the US ambassador to the UN—by meeting with Sudanese government officials and emphasizing that there has to be dialogue with them if Sudan's North-South dispute can move to lasting resolution. He has also been critical of the ICC indictments against Bashir.
Alex de Waal of the Social Science Research Council, who has written extensively on Sudan and is considered a global expert, has warned that hot pursuit of Bashir for the crimes of Darfur could have negative consequences for resolving the North-South conflict. He wrote in the March 19, 2007, issue of The Nation: "While the crisis in Darfur has captured the attention of Western activists, that conflict developed partly because of the incomplete resolution of the North-South war. And both conflicts arose from the same general phenomenon: regional discontent with exploitation, of both people and resources, by the central government in Khartoum. The Darfur crisis can neither be understood nor resolved apart from the more deep-rooted North-South confrontation."
Mahmood Mamdani, Herbert Lehman Professor of Government at Columbia University and the author of Saviors and Survivors: Darfur, Politics and the War on Terror, is a leading critic of the court. Mamdani argues that its prosecutor has failed to understand or acknowledge the history of the conflict in Darfur and has glossed over the complexities of the situation to create a simplistic and unfair case against Bashir. He also sees the ICC as a tool of big powers acting under cover of humanitarian intervention. "The emphasis on big powers as the protectors of rights internationally is increasingly being twinned with an emphasis on big powers as enforcers of justice internationally," he wrote in the conclusion to his book, excerpted by The Nation two years ago ["The New Humanitarian Order," September 29, 2008]. "This much is clear from a critical look at the short history of the International Criminal Court."
The second tangled case is that of Thomas Lubanga Dyilo, a rebel warlord in Congo who, Moreno-Ocampo says, "recruited and trained hundreds of children to kill, pillage and rape." That trial was recently suspended because the prosecutor refused to turn over documents to Lubanga's lawyers that might have put at great risk victims willing to testify. Moreno-Ocampo dug in his heels and won an appeal on the ground that witnesses and others who testify must be protected. The Lubanga trial can now proceed in The Hague, where the ICC is based.
"We believe we have the duty to protect, and we are trying to be sure that the protection of victims is established," Moreno-Ocampo said in an interview from The Hague, explaining that in establishing the principles and procedures of the court every step he takes is new terrain. "That's what the debate is about—the scope of witness protection. We cannot expose the lives of people who cooperate with us." He said that even before a formal trial opens, the case of Lubanga has had an impact: "In Nepal, 3,000 kids were released as soldiers because of the Lubanga case."
Scheffer of Northwestern says, "There's a large point to be made here. This is a process that investigates and prosecutes atrocity crimes—massive assaults on large numbers of civilians and egregious conduct of war against soldiers. Anyone who thinks this can be done at an extremely efficient and rapid pace, as we might see in the Cook County courthouse in your basic criminal case there, is simply fooling themselves."
Many people have petitioned the court to open cases. Between July 2002 and mid-August of this year, the prosecutor received over 8,700 communications from more than 140 countries. A majority of those requests were from people in the United States, Britain, Germany, Russia and France.