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.

A visualization of the permanent premises of the ICC, currently in construction (Schmidt Hammer Lassen Architects)

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.

Slobodan Milosevic during his trial at the ICTY.

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.

The history of the ad-hoc tribunals and the ICC suggest that we should expect more of the same: while the Court will inevitably face setbacks and failures, it will persist and achieve successes elsewhere.  It will offer incomplete justice, but important moments of justice all the same.

This path is in fact not surprising given the present structure of the international tribunals and the nature of the project. Why will there be setbacks and failures? Because the Court has been designed to be dependent on international cooperation and assistance to do its work and in some cases that support will be forthcoming and in others it will not (or it will be there one moment and disappear the next). As Antonio Cassese so eloquently wrote:

International courts have been bestowed with the sceptre and the gavel, not however with the attendant sword. It follows that they can only operate as long as sovereign states are prepared to lend them a helping hand.

For the moment, with the international criminal justice project in its relative infancy, this support from states will remain highly contingent, rendering the work of the ICC fragile.  The hope is that, over time, norms will develop that will compel states to cooperate with international criminal institutions as a matter of course, even when it is not politically expedient to do so.  But that is a long-term aspiration of the project.  For now, some measure of patience and realism is warranted when assessing the progress of the ICC.

Palestinian Foreign Minister Riad al-Malki leaves the ICC after meeting the Chief Prosecutor in August 2014 (Photo: Reuters)

Why do I think that the ICC will persist and survive? Because of the power of an idea and of precedent. At the end of the day, it is simply hard to argue against the notion of justice for the victims of international crimes like genocide, crimes against humanity and war crimes. Anyone who is a victim of a domestic crime expects state institutions to operate to investigate and punish the perpetrator, even if the system is not always able to do so. Victims of international crimes, many of whom have no recourse to domestic justice systems, expect no less. Justice is a powerful, powerful idea, and it will persist even when, in some cases, it is defeated.

And now there is also precedent. International crimes have been successfully prosecuted by both international tribunals and domestic courts, giving victims of future conflicts, and those who advocate for justice for international crimes, a powerful argument in favor of accountability. The establishment of the ICTY in 1993 was spurred in part by images of emaciated Bosnian Muslims held in detention camps that were beamed across the world during the summer of 1992. Many saw in those images echoes of the Holocaust, in Europe’s backyard no less, and asked the obvious question: if tribunals were part of the right answer after World War II, why not now? A year later the ICTY was born, reigniting the international criminal justice project. The same question is now asked by many victims of atrocities around the world: if justice could be provided in the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, the DRC, and elsewhere, why not for us?

Now that the international criminal justice project genie is out of the bottle, it cannot easily be put back in. For the foreseeable future, the ICC will sometimes struggle and sometimes even fail. But it will not go away and it will not become irrelevant. In the end, it will persist and succeed because of what it stands for.