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.