Judging the War Crimes Tribunal

Barbara Crossette

October 27, 2010

via CAAI

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.

Two high-profile cases illustrate these quandaries. No country—least of all in Africa—has tried to detain President Omar al-Bashir of Sudan, wanted in arrest warrants on charges of war crimes, crimes against humanity and genocide in Darfur. The African Union opposes the warrants. When Bashir visited neighboring Chad in July, where the government was treaty-bound to arrest him, he was welcomed officially as "a valued friend." A visit to Kenya, whose government is also an ICC signatory, followed. Kenyan officials said that African Union decisions trumped the court's demands.

There are also diplomats and officials in the global North who argue that the pursuit of Bashir and other prominent Sudanese officials is no way to get lasting peace in Darfur, where the UN says at least 300,000 people have died. They point to the success, so far, of the negotiated settlement of another dispute in Sudan, between its Arab-Muslim North and Christian and animist South, which is scheduled to culminate in a referendum on southern independence in January. Scott Gration, the Obama administration's special envoy to Sudan, has opened rifts between himself and Congress—and reportedly between himself and Susan Rice, the US ambassador to the UN—by meeting with Sudanese government officials and emphasizing that there has to be dialogue with them if Sudan's North-South dispute can move to lasting resolution. He has also been critical of the ICC indictments against Bashir.

Alex de Waal of the Social Science Research Council, who has written extensively on Sudan and is considered a global expert, has warned that hot pursuit of Bashir for the crimes of Darfur could have negative consequences for resolving the North-South conflict. He wrote in the March 19, 2007, issue of The Nation: "While the crisis in Darfur has captured the attention of Western activists, that conflict developed partly because of the incomplete resolution of the North-South war. And both conflicts arose from the same general phenomenon: regional discontent with exploitation, of both people and resources, by the central government in Khartoum. The Darfur crisis can neither be understood nor resolved apart from the more deep-rooted North-South confrontation."

Mahmood Mamdani, Herbert Lehman Professor of Government at Columbia University and the author of Saviors and Survivors: Darfur, Politics and the War on Terror, is a leading critic of the court. Mamdani argues that its prosecutor has failed to understand or acknowledge the history of the conflict in Darfur and has glossed over the complexities of the situation to create a simplistic and unfair case against Bashir. He also sees the ICC as a tool of big powers acting under cover of humanitarian intervention. "The emphasis on big powers as the protectors of rights internationally is increasingly being twinned with an emphasis on big powers as enforcers of justice internationally," he wrote in the conclusion to his book, excerpted by The Nation two years ago ["The New Humanitarian Order," September 29, 2008]. "This much is clear from a critical look at the short history of the International Criminal Court."

The second tangled case is that of Thomas Lubanga Dyilo, a rebel warlord in Congo who, Moreno-Ocampo says, "recruited and trained hundreds of children to kill, pillage and rape." That trial was recently suspended because the prosecutor refused to turn over documents to Lubanga's lawyers that might have put at great risk victims willing to testify. Moreno-Ocampo dug in his heels and won an appeal on the ground that witnesses and others who testify must be protected. The Lubanga trial can now proceed in The Hague, where the ICC is based.

"We believe we have the duty to protect, and we are trying to be sure that the protection of victims is established," Moreno-Ocampo said in an interview from The Hague, explaining that in establishing the principles and procedures of the court every step he takes is new terrain. "That's what the debate is about—the scope of witness protection. We cannot expose the lives of people who cooperate with us." He said that even before a formal trial opens, the case of Lubanga has had an impact: "In Nepal, 3,000 kids were released as soldiers because of the Lubanga case."

Scheffer of Northwestern says, "There's a large point to be made here. This is a process that investigates and prosecutes atrocity crimes—massive assaults on large numbers of civilians and egregious conduct of war against soldiers. Anyone who thinks this can be done at an extremely efficient and rapid pace, as we might see in the Cook County courthouse in your basic criminal case there, is simply fooling themselves."

Many people have petitioned the court to open cases. Between July 2002 and mid-August of this year, the prosecutor received over 8,700 communications from more than 140 countries. A majority of those requests were from people in the United States, Britain, Germany, Russia and France.

Council, a request by a nation that is a full member of the court or directly by the prosecutor, acting alone or on the request of others. Numerous critics say that in using their own legal teams to draft the court's statute, the big powers have built in, or are at least enjoying, an unfair immunity. This is a valid point. Take, for example, the US invasion of Iraq, Russia's of Chechnya, the Chinese in Tibet, Israel in Gaza in 2008–09 or, more recently, Indian forces in Kashmir—none of which have been formally referred for investigation or prosecution.

Under the first route to trial, there is no way that a case will be brought against any of the five permanent members of the Security Council, which hold veto power. Three of those P-5—China, Russia and the United States—are not full members of the court. (Three out of four major aspirants to permanent membership, Brazil, Germany and Japan, are full ICC members. India, which has a powerful security apparatus accused of many serious abuses but protected by law against prosecution, is not.) This means that a case cannot be referred directly by those countries, which are, in any case, further protected by "complementarity." Under that provision, any nation has the right to try an accused person first; only if it cannot or will not do so can the court officially step in. Bashir and others were formally charged with atrocities in Darfur after a referral from the Security Council; no effort has been made within Sudan to put those accused on trial (only individuals may be accused, not nations, armies or other institutions).

Nations with full membership in the ICC (the 114 that have signed and ratified the Rome Statute) can lodge cases against nonmembers. Afghanistan, for example, is a member and could theoretically bring charges against US citizens at some point; Iraq is not. Israel is not a member—it signed the treaty but then, like the United States under George W. Bush, withdrew cooperation. The Central African Republic is a court member, and as such requested the arrest of Jean-Pierre Bemba Gombo, a Congolese warlord responsible for large-scale attacks across the border into the CAR (Congo is also a court member).

Uganda is an interesting footnote. The birthplace of the Lord's Resistance Army, Uganda is an ICC member, and its government requested and got arrest warrants for LRA leader Joseph Kony and several of his colleagues, all Ugandan citizens. The LRA, which has been largely driven out of Uganda, has been accused of atrocities in several neighboring countries, potentially broadening the scope of the charges.

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The first case recommended by the prosecutor acting on his own initiative (with some preliminary work and backing from eminent Africans, including Kofi Annan) deals with leaders of political violence in Kenya after the disputed 2007 election. However, that case, like all others, must first clear a pretrial panel of judges, who essentially conduct their own evaluation of the charges and preliminary evidence. The pretrial chamber, if it agrees there is a case, then sends it to the trial chamber. Meanwhile, an appeals panel can hear challenges. Numerous appeals can hold up the progress of cases for extended periods.

When asked repeatedly why he has not gone after bigger fish—or why he has expended so much effort on Africa—Moreno-Ocampo points out that African nations have requested arrests and trials, and Sudan was referred by the Security Council after a huge international outcry over several hundred thousand deaths in Darfur. He also says that he wants to choose cases he can win, or at least ones that can go to trial. Evidence for the scale and intent of crimes for which the court was created (genocide, crimes against humanity and war crimes) would be hard to amass and pin on individuals when there is no apparent mastermind, like Slobodan Milosevic or Radovan Karadzic in the Balkans tribunal, or identified perpetrators of genocidal acts in Rwanda. France recently arrested a Rwandan Hutu, Callixte Mbarushimana, for crimes committed in Congo, where he operated after apparently fleeing Rwanda in 1994. The ICC had charged him with crimes against humanity and war crimes allegedly committed in 2009 in Congo's Kivu region, where widespread violence has long severely tested UN peacekeeping missions. But the brutal reality is that "collateral damage" alone, or unintended unleashing of sectarian or ethnic violence, like that unleashed by the American invasion of Iraq, would be hard to prove as a war crime under current definitions.

Moreno-Ocampo has been criticized for an aggressive, noncollegial style and for not putting enough time into the management of the prosecutorial section, while traveling widely and speaking to many audiences about the court. Although few people anywhere would recognize the court's judges, who are drawn from all over the world, Moreno-Ocampo has become its public face. He chuckles a little wearily at hearing these indictments read to him again. There seem to be no chinks in his self-confidence. "I have different responsibilities. I have to do all of them," he says. "I have to be the best lawyer. We requested thirteen arrest warrants. We got all of them. We're very confident that we will get the convictions. We have debates, and sometimes people have different opinions, but that's normal." Moreno-Ocampo has to work with the cumbersome three-chamber court structure: the pretrial chamber, which must approve cases before they can proceed with indictments and arrest warrants; the trial chamber, which hears cases; and the appeals chamber, which not only would hear petitions against convictions or acquittals but is also called on to decide disputes that arise while cases are in progress, such as the debate over protection of victims.

"I have to be the best possible investigator," Moreno-Ocampo continues. "We have to investigate in impossible circumstances. Darfur was our biggest challenge. We had to investigate without visiting the crime scene. We did it in twenty-one months." Bashir was the high-profile target, he said, but the prosecution soon also focused on a lesser-known Sudanese official, Ahmad Harun, for whom an arrest warrant has also been issued. Moreno-Ocampo says that Harun, a former interior minister who coordinated early attacks on villages, is now governor of Kordofan, a critical province from which he can recruit militias to attack civilians in southern Sudan, where peace is still fragile. The prosecutor's office believes Harun could provide a trove of information on how the crimes in Darfur were organized and carried out.

Moreno-Ocampo continues with his list of duties. "And then, I have to be manager. I have 300 people from seventy countries working together." To keep the court in the public eye, he says, "we are preparing policy papers explaining exactly what we are doing."

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Washington's relations with the ICC would be the stuff of comedy, were the issue not so profoundly serious. Under Scheffer, the Clinton administration's ambassador at large for war crimes issues in the late 1990s, the United States took an active part in writing the statute that created the court. From the start it was pre-emptively opposed in the Pentagon, which feared that American service members and officials would be targeted, and by a right-wing posse in the Senate, where the late Jesse Helms announced that the treaty would be "dead on arrival" if it was sent for ratification. Clinton had a hard time deciding whether to sign the Rome Statute.

"President Clinton was known for not making decisions until the very last moment," Scheffer said recently, recalling the tense last forty-eight hours before the deadline for signing on December 31, 2000 (nations had to adhere to the Rome Statute by that date in order to be founding members of the court, though ratification could come later). The midnight deadline fell on a Sunday night—New Year's Eve. A blizzard had buried Washington and New York, where the treaty was waiting at the UN. Scheffer, in Ashburn, Virginia, was ordered to go to New York and wait for instructions. There had been no decision from Clinton, who was at Camp David.

There were no flights along the snowed-in East Coast, but Scheffer managed to get to New York by train on deadline day. After his arrival Secretary of State Madeleine Albright called and told him Clinton had made his decision: Scheffer was authorized to go to the UN and sign. He slogged on foot through the snow to First Avenue—no taxis were available—while trying to round up the UN's chief legal counsel, Hans Corell, to open the building. Washington had to fax Scheffer the necessary plenary powers to sign. With only hours to spare, the United States joined the ICC. Scheffer can be seen wearing his snow boots in the official photo.

In retrospect, that may have been the high point in the saga. In his waning days in office, Clinton never considered sending the treaty to the Senate for ratification. And not long after taking office, President Bush renounced the American signature in a letter to the court drafted by John Bolton, under secretary of state for arms control and international security, later UN ambassador, who had long taken the position that the United States should not be subject to international law.

Legal experts have argued, however, that it is not possible to "unsign" the Rome treaty, although a nation can go on record saying it will not abide by or take part in the court's activities, which is what the Bush administration in effect did. If this is so, then it would require only a letter from President Obama to recommit the United States formally as an active observer, even without discussing ratification. That might have been politically possible a year or more ago, but advocates of the court say that in the current climate—with a looming GOP takeover of the House and possibly the Senate—sending such a letter would take a monumental act of courage and salesmanship, given the right-wing hostility to the very idea of the court. Senate ratification, which would give Washington a full say in court affairs, seems out of the question.

William Pace, leader of the Coalition for the International Criminal Court, a New York–based partnership of more than 2,500 civil society organizations from 150 countries, says the United States is at least a decade or more away from any serious consideration of full membership. But Obama is showing increasing interest. "The US has sent a much clearer message to governments and to officials of the court that it is interested in being more constructively engaged in the coming years," Pace says.

Washington began inching slowly toward recognition even while Bush was still in office. A watershed was its 2005 decision not to block a UN Security Council resolution referring the case of Bashir and Darfur to the court. Instead of using its veto, Washington abstained, along with Algeria, Brazil and China.

In late May of this year the Obama administration, which has been taking part as an observer in meetings of the court's member nations, sent a high-level team to Kampala, Uganda, for the first extensive official review of the court's progress. The relatively large US team was led by Harold Koh, legal adviser to the State Department, and Stephen Rapp, ambassador at large for war crimes issues. Koh told reporters after the review ended that the US delegation "worked extremely hard to resume engagement with the court."

The most contentious issue on the table—and of prime importance to the United States—was the crime of aggression. When the ICC was created, four crimes were placed within its jurisdiction: genocide, crimes against humanity, war crimes and the crime of aggression. But no clear definition of aggression could be agreed on, so years of negotiations followed. When the review conference opened in June, concrete proposals were finally ready. The definition adopted in Kampala, to the surprise and satisfaction of many, was this: "The planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations." Think US invasion of Iraq in 2003.

The Kampala conference, having agreed on a definition, proceeded to build in a seven-year moratorium on action. Thirty nations must ratify the definition, and for a year afterward no one may be charged. This means no action until 2017 at the earliest. There are no ex post facto provisions of the kind that allow ad hoc tribunals such as those for Cambodia, Rwanda, the former Yugoslavia and Sierra Leone (all of which operate separately from the ICC) to dig into history and address crimes that predate the formation of the tribunals. In other words, there's no chance of a trial connected to the American wars in Iraq and Afghanistan.

At the Coalition for the International Criminal Court, Pace says the delay in implementing the crime of aggression is not necessarily a setback. "Having the crime of aggression in a major international treaty is itself a major development in international law, even though the Security Council and the ICC must wait several years before exercising jurisdiction. For now, it is more prevention than detention."

The US delegation in Kampala was clearly relieved. Koh restated at a briefing later that the United States has safeguards against what officials have called "politically motivated" attempts to charge Americans, even if Washington ratifies the court treaty someday. "The prosecutor cannot charge nationals of nonstate parties, including US nationals, with a crime of aggression," Koh said. "And if we become a state party [i.e., ratify] we'd still have the option to opt out from having our nationals prosecuted for aggression. So we ensure total protection for our armed forces and other US nationals going forward."

Moreno-Ocampo, whose nonrenewable term runs out in mid-2012, believes the court will gradually overcome teething details and management concerns. "This is a global social contract," he said. "One hundred fourteen states agree to commit themselves to end genocide and war crimes, and we commit to bring issues to the International Criminal Court when they cannot act." He says the "shadow of the court" is already large. He sees its preventive power as providing great hope that abuses will diminish as arrests are sought and trials held. Moreno-Ocampo would like to see convictions decided while he is in office, but he accepts that these cases may take years. He returns to the case of Darfur.

"It's a matter of time," he says. "Harun, Bashir—their destiny is to face justice, whether in two years or twenty years. The court is permanent. The court can wait. The victims, they can't wait. The victims are suffering genocide today. Stopping the crime is the priority."