International criminal justice: from past to future

Updated at 10:08pm on February 07, 2018

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Slobodan Praljak, one of the six defence appellants in the Prlic case, at the appeals judgement in November 2017. — Flickr/UN International Criminal Tribunal

The ICC will eventually be competent on the crime of aggression, prosecuting not only war crimes, but also the crime of war (for which heads of states bear primary responsibility), write Daniele Archibugi and Alice Pease 
 
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 Karadžic and Ratko Mladic, both serving exemplary sentences (to 40 years of imprisonment and to life imprisonment respectively). It will remember Serbian president Slobodan Miloševic, 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: 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.
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. 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. 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, especially since the official judicial bodies (including the International Court of Justice, besides the International Criminal Court) were paralysed 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, is 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.

OpenDemocracy.net, February 5. Daniele Archibugi is research director at the Italian National Research Council and professor of innovation, governance and public policy at the University of London, Birkbeck College. Alice Pease is a freelance researcher working on a modern slavery campaign at the House of Lords. She holds degrees from the Universities of Edinburgh and Bologna and has worked for various think tanks in Europe and Latin America.