International Criminal Justice: from past to future
29 November 2017 – Slobodan Praljak, one of the six Defence appellants in the Prlić case, at the Appeals Judgement, November, 2017. Flickr/ UN International Criminal Tribunal. Some rights reserved.
After a quarter of a century of activity, the International Criminal
Tribunal for the former Yugoslavia (ICTY) closed its doors at the end of 2017.
It was the first international criminal court to be established after the
experiences of Nuremberg and Tokyo, restoring hope that the perpetrators of international
crimes could be prosecuted even outside their own state.
It is not surprising, therefore, that those who care about the defence
of human rights have carefully observed this venture. After the institution of
the ICTY, other international tribunals were activated, including the ad hoc
tribunal for Rwanda and the hybrid tribunals for Sierra Leone, Cambodia and
East Timor. But, above all, the International Criminal Court, which came to
life in 1998.
Numbers show that the ICTY achieved partial success: of the 162 indicted,
all were caught, 90 convicted, 19 acquitted, the others transferred to national
courts, or had their proceedings suspended. The Tribunal has developed the
existing norms of international criminal accountability considerably and
generated important precedents.
World public opinion will certainly
remember the trials against two of the fiercest instigators of the Srebrenica
massacre, Radovan Karadžić and Ratko Mladić, both serving exemplary sentences (to
40 years of imprisonment and to life imprisonment respectively). It will remember
Serbian President Slobodan Milošević, mysteriously found
dead just before the judges pronounced the verdict.
The ICTY will also be remembered for the extreme act of Slobodan
Praljak, a Croatian defendant with a secondary role during the civil war. When
he committed suicide by taking a shot of cyanide in front of his judges on
November 29, 2017, as filmed by several international televisions, he suddenly
became one of its most famous defendants. The dramatic event went viral. A live
suicide sparked the imagination of the public, even of those who had little
knowledge of the Yugoslavian civil war.
Slobodan Praljak
Before the dissolution of Yugoslavia, Praljak was an industrious and
multifaceted citizen. He studied electrical engineering at the University of
Zagreb, and his intellectual curiosity led him to study philosophy and
sociology as well.
With alternating fortunes he worked in the world of entertainment: he
directed theatres in Zagreb and in Mostar, produced television shows and even shot
a film. In his private life, in line with the integration policy in Marshall
Tito’s Yugoslavia, he married a Muslim wife.
With the onset of hostilities, Praljak enrolled himself voluntarily into
the paramilitary, becoming a commander of a peculiar unit composed of
intellectuals, artists and musicians. But not even his cosmopolitan background
– according to the ICTY judges – stopped him from committing war crimes.
With his macabre toast, Slobodan Praljak was propelled into the
spotlight not because of his power, nor even for the cruelty of his felonies.
But with an authentically Shakespearean dramatic twist, Praljak showed that the
Tribunal’s work was more than difficult, it was impossible. Praljak had already
served the majority of the twenty years of prison that had been handed to him, and
clearly his gesture was not narrowly instrumental. Hans Göring poisoned himself
in Nuremberg the day before he had to go to the scaffold; Praljak just before his
release from prison.
Criminal justice cannot repair the damage inflicted by an atrocious
civil war because in the former Yugoslavia the line between winners and losers,
between perpetrators and victims, is too blurred. If Praljak's suicide is
destined to become the final emblem of a quarter of a century of hard work carried
out by investigators, magistrates and witnesses, one must wonder whether
international criminal justice has effectively achieved its objectives.
The International Criminal Court
The future belongs to the International Criminal Court (ICC): destined
to be a permanent institution and to potentially investigate crimes committed
in at least all the member countries, its scope for action is much broader than
that of the ICTY.
In a few months, we will celebrate the twentieth anniversary of the
signing of its founding treaty. Is there anything to celebrate? The Coalition
for the International Criminal Court, an active non-governmental organisation
which since the beginning has monitored the activities of the institution, will
be the first to offer us a
critical analysis.[1]
On the one hand, the very fact that the Court became operational after only
four years of the signing of the treaty was an unexpected success. At present,
the Court has a sumptuous building, authoritative and well paid judges, and
conducts investigations. An extremely high number of states, as many as 123,
have agreed to submit – at least formally – to its jurisdiction.
Yet, the ICC lacks an ingredient fundamental for any tribunal:
defendants. In fifteen years of activity, a few dozen people have been indicted
(far fewer than those indicted by the ad hoc Tribunals for the former
Yugoslavia and Rwanda, which both investigated a specific territory and limited
time period). Compared to the impressive number of international crimes
committed around the world which still go unpunished, the number of
incriminations is paltry.
When the Court has chosen to target defendants of some importance, as in
the case of Sudanese president al-Bashir, member states have not cooperated to
extradite the accused. So much so that the indictments have had no meaningful political
outcome and al-Bashir continues to keep tight control over his country.
When he received his first indictment in 2009, al-Bashir said scornfully
that it was not worth the ink with which it was written. And the facts show
that he was right. So far, the Court has been an empty shell, operating only
when it does not interfere too closely with the interests of the most powerful
states. Is an annual budget of around 120 million euros and 800 employees
justified?
Not worth the ink?
There is a growing legal literature that analyses in detail the statutes
and norms of international law and shows, often rightly, that the ICC is an
important precedent that needs time to consolidate. But all this risks being technicalities
among lawyers. Instead, we need to ask ourselves what victims and citizens need
and whether they can wait before the ICC pulls out its claws to defend the
defenceless.
In some cases, the member states (and financiers) of the ICC have used
their power to block uncomfortable investigations and incriminations. In
others, the Prosecutor's Office has been too cautious, and he (and now she)
avoided becoming embroiled in proceedings for which there was no political support.
And in the few cases in which the Prosecutor has tried to do so, many member
states failed to effectively support the indictment (as in the case of al-Bashir,
who has had the opportunity to travel to several ICC member countries), or the
Court was forced to carry out a precipitated U-turn (as in the case of Kenyan president
Kenyatta).
Should we abandon the very idea of criminal accountability for those who
commit international crimes? We believe, on the contrary, that political
stability, especially in parts of the world that have witnessed systematic violations
of human rights, cannot be guaranteed without a process of truth and
reconciliation, and this is possible only if the most atrocious crimes are
identified and the perpetrators punished. The judicial tool is extremely
useful: i) for disclosing facts, often hidden by those who commit crimes or
manipulated by misinformed professionals; ii) to help create the conditions for
reconciliation; iii) to eliminate from the political scene and, where possible,
even condemn those responsible of atrocious crimes.
Intergovernmental obstruction
The problem is that, so far, international criminal justice has been
in the hands of governments themselves. Governments allocate funding for the
international tribunals, appoint the judges and even make the prisons available
for the (few) convicted. It was initially conceived to intervene when national
justice was unable or unwilling to act, but it ended up being guided by an
intergovernmental logic which has hampered its impartiality.
What can be done to ensure that international criminal justice performs
its ideal function, namely to control government abuses, rather than being an
instrument for governments to settle scores with one another?
First of all, civil society organisations can collect data and
information on cases which the ICC is not eager to investigate. For example,
non-governmental organisations have produced evidence
of war crimes committed by British soldiers during the invasion
of Iraq in 2004.[2]
When new evidence was handed over to the ICC, the Prosecutor's Office started a
fresh investigation, which had been hastily archived several years earlier. In
these cases, external pressure can succeed in making the ICC perform its
institutional function.
Secondly, public opinion can have an input in the selection of judges.
The judges are appointed by the Assembly of States of the ICC, on the basis of
an analysis of their legal profiles. Many explicit and implicit criteria are
used to appoint them (budget contribution of member states, geographical
coverage, representativeness of legal cultures, gender balance, etc.). Non-governmental
organisations such as the Coalition for the International Criminal Court, Amnesty
International, Human Rights Watch and others, can also play a role in
commenting on the profiles of the candidates, with the hope that the Assembly
of States will appoint judges who have demonstrated independence of judgment,
an ability to resist political pressures, and proven investigative courage.
Thirdly, public opinion can undertake ventures similar to those of the
ICC. In the 1960s, when international tribunals were still a mirage, Bertrand
Russell and his colleagues instituted a successful Opinion Tribunal on the War
Crimes committed
in Vietnam.[3] This
Tribunal could not impose any sanctions, but productively investigated and
reported certain abuses and managed to have an important impact on western
public opinion.
Even today, opinion tribunals continue to be one way to challenge
“institutional” courts to be faithful to their promises. The World Tribunal on
Iraq, set up by various non-governmental organisations, had a far-reaching echo,[4]
especially since the official judicial bodies (including the International
Court of Justice, besides the International Criminal Court) were paralyzed by
the vetos of the United States and the United Kingdom.
The World Tribunal on Iraq has instead been able to direct an opinion trial
that led to the condemnation of war crimes and the crime of war. A symbolic condemnation
only, of course, but better than nothing. The Permanent Peoples' Tribunal,
active at the Basso Foundation in Rome, has convened for forty years courts of experts
and intellectuals on world controversies. We can only hope that the ICC and
other UN bodies will be inspired by these more daring, even if less powerful,
ventures.
The crime of war
Fourthly, it should not be forgotten that on the next July 17, after 20
years from the signing of the Rome Treaty, the ICC will eventually be competent
also on the crime of aggression. This is the single most important issue to be
addressed by the Court since it will allow it to prosecute not only war crimes
(often committed by low-level soldiers and para-military troops), but also the
crime of war (for which heads of states bear primary responsibility).
An effective use of this will make powerful states that are members of
the ICC, including France and the United Kingdom, less prone to intervening
military.
Finally, the ICC is complementary to what national courts can do through
universal jurisdiction. The so-called "Judges’ International" can
play a very useful role in highlighting particularly serious crimes, starting
with investigations and incriminations, and in some cases they could transfer
the case to the ICC.
If the ICC is guided by the intergovernmental logic alone, it risks
becoming a complacent and useless institution, which will certainly not honour
the old and continued hope of an independent judiciary.
But if, instead, the ICC is pressured by an attentive and demanding
public opinion, it will hopefully find the courage to investigate even
politically uncomfortable situations, incriminating criminals with high-level
protections. And, eventually, contributing to making the court an effective
device for the protection of human rights.
Crime and Global Justice. The
Dynamics of International Punishment (Cambridge: Polity Press, 2018) will be launched at:
* University College London on Tuesday, February
27, 2018 (h 18:15-20:00, Archaeology G6 Lecture Theatre, 31-34 Gordon Square,
London WC1H 0PY
* London School of Economics and Political Science on Wednesday February
28, 2018 (h 18:30-20:00, by Christine Chinkin, Richard Falk, Mary Kaldor and
Gerry Simpson ) LSE Campus, Houghton Street, London WC2A 2AE. Request tickets for the event, here.
[1]
The Coalition for the International Criminal Court (CICC) is a global civil
society network of more than two thousand organizations. Founded in 1995,
persuaded several national governments to sign the Treaty of Rome which in 1998
instituted the ICC. It has continued to monitor the ICC activities and to
provide suggestions for its enhancement. It is organizing a Commemoration to
celebrate the twentieth anniversary of the Treaty of Rome, which will be held
in The Hague, 15-16 February 2018.
[2] The
European Center for Constitutional and Human Rights and Public Interest Lawyers
took the lead. See ‘War
crimes by UK forces in Iraq’, here.
[3] See Cody
J. Foster, Did America Commit War Crimes
in Vietnam? “New York Times”, December 1 2017.
[4] Peter
Rothberg, The World
Tribunal on Iraq, “The Nation”, May 7 2004.
Crime and Global Justice. The Dynamics of International Punishment (Polity Press, 2018) is being launched at UCL and LSE on 27 and 28 February, 2018.