Abstract
This book examines the slow and inexorable development of the International Criminal Court (ICC) since its founding in 1998. It is a big book of close to 500 pages, and it is filled with meticulously researched reports of the details of the cases that came to the court from 1998 onward but also on the developmental trajectory for the idea of an ICC launched with the atrocities at Nuremberg in the 1940s.
It is from Chapter 5 onward where the bulk of the discussion of the development of the ICC can be found. The ethnic cleansing and other atrocities that occurred after the breakup of Yugoslavia in the late 1980s became the centerpiece of concerted efforts by the United Nations (UN) and other concerned entities to bring to justice the Bosnian Serb military leader Ratko Mladic. Mladic targeted Bosnian Muslims in the towns and villages of Srebrenica, which became the epicenter of the Bosnian War from 1992 to 1995. Indeed, because of the atrocities occurring there, Srebrenica was declared the first-ever UN safe area in 1993. In short order, the UN went on to create an international criminal tribunal empowered to hunt down, detain, and bring to justice perpetrators of war crimes in the region.
However, the problem such international tribunals faced from the beginning was how to give teeth to rulings that particular individuals were guilty of war crimes or crimes against humanity. Criminal law can only operate and be effective when it has in place a constabulary force which is empowered to utilize coercive force against those convicted of violating laws of a particular jurisdiction. International tribunals, and the later ICC, always faced the reality that they lacked their own constabulary forces to carry out enforcement of decrees and seizures of persons so named. Short of having a coercive police force at the ready, international courts have had to rely on voluntary cooperation between nation-states that may be identified at any particular time as harboring fugitives from justice. In effect, if particular nation-states are unwilling or unable to cooperate with international bodies to bring to justice those designated as perpetrating violations against humanity, then such persons aptly can be described as “hiding in plain sight.”
This reality is most clearly illustrated in the case of Rwanda’s genocide, covered in detail in Chapter 6. Over 100 days in 1994 upward of 800,000 members of the Tutsi community were slaughtered by ethnic Hutu extremists. UN and Belgian forces were on hand, but they were unable to quell the disturbance. The Hutu suspects who carried out the carnage remained beyond the grasp of any international tribunals because of a lack of existing extradition treaties between many of the states involved. Many of the suspects fled across the border into neighboring Zaire and Tanzania, thereby avoiding capture by the Tutsi-led Rwandan Patriotic Front government put newly into power in the aftermath of the genocide. To this day, many of the suspects have yet to be brought to justice.
This and other genocides (such as that perpetrated by the Khmer Rouge in Cambodia in the late 1970s) led to a variety of hybrid courts (the topic of Chapter 7) that sought to solve some of the problems discussed above. Between 1999 and 2007, six hybrid courts were created by the UN in cooperation with those nations affected by such atrocities. And in 2013, a seventh hybrid court, known as the Extraordinary African Chambers (EAC), opened in the West African nation of Senegal as the UN prepared a case against former Chadian President Hissène Habré. Habré was accused of being responsible for the death of more than 40,000 people and the torture of 20,000 more during his 8-year rule of Chad from 1982 to 1990. Some of these courts are UN based, while others are nation based (such as the EAC in Senegal). Unlike the earlier ad hoc tribunals, these hybrid courts are staffed with both domestic and international personnel working together in an attempt to bridge the gap between far-flung international decrees and local government agents who possess the resources to enforce them within their own sovereign territories. The hope of the hybrid courts would be the merging of the findings and perspectives of the international community with the legitimacy of local actors in local settings. Yet, the limitations of the hybrid courts shared the same problems of the ad hoc tribunals, namely, the difficulty of actually gaining custody of and prosecuting those whom the ICC targeted for human rights violations.
By book’s end, the authors lament the fact that so far the highest ideals of a global justice, embodied in the ICC, have yet to be met. The authors are prone to take the position of blaming various nation-states for being merely fair-weather friends of the ICC, deciding whether or not to cooperate in the apprehension of wanted fugitives on a case-by-case basis. For example, the United States has been one of the more high-profile examples of a nation-state that looks askance at ceding its sovereignty to international bodies such as the ICC. Indeed, one aspect of “American exceptionalism” is the United States’ positioning itself as the “policemen of the world,” which exists in tension with international bodies such as the ICC developing and enforcing laws at the global rather than the national level. Although the ICC pursues the laudable goal of promoting human rights and advancing the rule of law, it must always deal with the stubborn reality that law is a product of nation-building and sovereign jurisdiction. Hence, the project of transcending the national level in the cause of global justice will always be a precarious one, needing continually to work out the difficulties of gaining the cooperation of local actors in the pursuit of war criminals.