Alex Whiting joins JiC for this guest-post putting the highs and lows of the ICC into historical and political perspective. Alex is a Professor of Practice at Harvard Law School where he focuses on international and domestic prosecution issues. He previously worked as a prosecutor at the International Criminal Court and International Criminal Tribunal for the Former Yugoslavia.
In his post here at JiC where he discussed the news that an LRA commander and International Criminal Court indictee may have been apprehended, Mark noted the apparent rapid reversal of fortunes of the ICC. Just last month, the news about the Court focused on the collapse of the Kenyatta case and the Prosecutor’s decision to hibernate the Sudan investigations, causing some to question whether the ICC had become ineffective and irrelevant. Suddenly, this month, the Court appears to be relevant again, even if facing new challenging cases. Palestine has joined the Court, unleashing strong reactions. Now it appears that an LRA indictee has been apprehended after ten years. So is the ICC dead and buried or alive and kicking? It is, in fact, a mistake to think that the ICC is or will meet either of these destinies, emerging as a total failure or a complete success.
The Court is here to stay, it is a reality, and over time it will experience both highs and lows, triumphs and setbacks. And that has been precisely the history of the international criminal justice project starting with Nuremberg and throughout the life of the modern tribunals. Each time it seemed that the international criminal justice project was dead, it rose again to achieve new successes.
After the historic trials of Nuremberg, suddenly it seemed that international criminal justice was going to be a one-time event. In part because of the onset of the Cold War, there were no international criminal prosecutions for nearly fifty years (though there were some domestic prosecutions) despite there being no shortage of atrocities. The project rose again with the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) one year later. The establishment of these tribunals led to additional ad-hoc courts for Sierra Leone (SCSL) and Cambodia (ECCC), and ultimately provided momentum for the adoption of the Rome Statute and the creation of the permanent International Criminal Court in 1998.
Although many now say that the ad-hoc tribunals were largely successful in bringing forward credible and fair prosecutions, each of these tribunals at one time or another faced some very bleak moments. I was a prosecutor at the ICTY when Slobodan Milošević died in 2006 after four years of trial. Many thought that the Court would not survive the premature end of its signature case and that the UN would quickly pull the plug and wind down the tribunal. In truth, some of the ICTY’s best work came afterwards, particularly with the apprehension and trials of Ratko Mladić and Radovan Kardžić, and nearly nine years after Milošević’s death the Court is still moving forward.
Some have nonetheless suggested that the Appeals Chamber conviction reversals in the Gotovina and Perišić cases in 2012 and 2013, respectively, have tarnished the legitimacy and reputation of the ICTY, but over time (and after the judgments in the pending cases), I predict that these fears will be seen to have been overblown, even if they are not completely unfounded.
Other tribunals have faced their own challenges that at times seemed to threaten the credibility or viability of the project: the ICTR in trying (unsuccessfully) to prosecute cases of Tutsi crimes against Hutus (the RPF cases), the ups and downs of the CDF cases at the SCSL, and the accusations of corruption and political interference at the ECCC. This is not to say that these various shortcomings or failures of the ad-hoc tribunals were trivial – they are not – but they also did not ultimately defeat or delegitimize the international criminal justice project. That project has survived.
And even before these last two turbulent months, the ICC has itself experienced a similar trajectory of highs and lows. The Court was more successful than many expected in starting investigations and having cases referred (often self-referred) by states, but faced bigger challenges in shepherding cases through the confirmation and trial processes, resulting in the failure of some cases. Few expected that the UN Security Council – where three of the five permanent members (the U.S., China and Russia) are not part of the ICC – would ever refer a case to the ICC. But it did so twice in the Court’s first ten years: Sudan (2005) and Libya (2011). Each time the referral initially appeared to be a boon for the Court and an enormous boost to its legitimacy and relevance. But in each case, over time, support for the cases waned and the prosecutions stalled, exposing some of the weaknesses of the Court and its powers. Continue reading