When Prosecution is Not Enough: How the International Criminal Court Can Prevent Atrocity and Advance Accountability by Emulating Regional Human Rights Institutions.

Abstract

In 1998, a half-century after the Nuremberg trials of Nazi war criminals, a diplomatic conference finalized the Rome Statute of the International Criminal Court (ICC). Only four years later, that treaty entered into force following its ratification by sixty states. The creation of a permanent, global tribunal to prosecute those responsible for the worst international crimes fulfilled a dream kept alive throughout the Cold War. International human rights activists, diplomats, and jurists offered grand ambitions for the ICC. It would not only punish political leaders and military commanders who had committed genocide, crimes against humanity, and war crimes, but also would deter others from committing such mass atrocities. After the fall of the Berlin Wall in 1989, hope had surged among the international liberal elite that they could create a new, peaceful world order in which mass atrocities would be rare, and in which those responsible would be called to account. While sobered by the failure of international powers to stop genocide and crimes against humanity in the former Yugoslavia and Rwanda in the early 1990s, they were heartened by the UN Security Council's creation of new international criminal courts: the "ad hoc" International Criminal Tribunal for the Former Yugoslavia (ICTY), in 1993, and the International Criminal Tribunal for Rwanda (ICTR), in 1994. "To tribunal advocates, [the ICC, ICTY, and ICTR] represent[ed] the zenith of the international human rights movement. With such institutions in place, getting away with mass murder would no longer be the norm but the exception. "

Today, a quarter-century later, the record of international criminal tribunals is disappointing and the prospects for similar initiatives look bleak. International criminal law has not ushered in a new world order.4 The ICTY took nearly twenty-five years and approximately three billion dollars to try just over 100 defendants. Partially international "hybrid" tribunals created by the United Nations and the governments of Cambodia and Sierra Leone have spent tens of millions of dollars to convict fewer than ten defendants each. Trials in all these tribunals have proceeded excruciatingly slowly, taking years from arraignment through appeal. In several cases, justice delayed has become justice denied. For example, former Serbian President Slobodan Milosevic and former Khmer Rouge Foreign Minister Ieng Sary died four and two years into their respective trials at the ICTY and the Extraordinary Chambers in the Courts of Cambodia (ECCC): their cases terminated with no findings as to guilt. People in the regions subject to these international criminal tribunals have reacted to their work with ambivalence at best. The modest impacts of the ICTY and ICTR on politics, law, and intercommunal reconciliation in the former Yugoslavia and Rwanda have been a major theme of journalism and scholarship on those courts.7 Most important, atrocities remain common: governments and insurgents continue to torture and slaughter civilians in Syria, Nigeria, Yemen, Myanmar, and elsewhere.