By Mark Ellis
Prosecuting individuals for war crimes and other atrocities remains an “historical anomaly.” Below, Mark Ellis looks at several fissures in the international criminal justice system and asks whether our commitment to justice is commensurate with the institutions and principles we set forth moving into the 21st century.
We like to think that our robust system of international law, cooperative agreements, and representative bodies reflect a humane and civilised society, where sovereign states manage crises together, finding resolution short of a global battleground. Yet, the lines between sovereignty and shared interest, justice and political expediency, remain blurred. Armed conflict, repression, and state-sponsored violence continue unabated; victims typically are innocent civilians and perpetrators are rarely brought to account. Though we’ve codified the most serious of crimes, including war crimes, genocide, and crimes against humanity, justice seems still beyond the reach of our legal institutions and collective political will. The few advances in our response to international atrocities – namely, creation of the International Criminal Court (ICC), the principle of universal jurisdiction, and the Responsibility to Protect (R2P) doctrine – are in retreat. Despite our best intentions and early expectations, international crimes are committed with impunity. This article looks at several fissures in the international criminal justice system and asks whether our commitment to justice is commensurate with the institutions and principles we set forth moving into the 21st century.
The Casualties of Conflict
Since the end of WWII, hardly a period of peace, there have been 253 distinct conflicts 1 with an estimated 7.8 million direct casualties.2 These figures do not include indirect consequences, such as displacement and injury. If one adds casualties at the hands of repressive authoritarian regimes, estimates for the number of victims in the period of 1946-2008 soars to an alarming 101 million people.3 In the year 2012 alone, there were thirty-seven armed conflicts, depending which ones are counted, plus an additional nine “belligerent occupations” of states and territories. A conservative estimate puts the 2012 death and injury toll from conflict-related violence as high as 95,000. These same conflicts have also displaced 6.5 million people, swelling the world’s displaced population to 28.8 million.4 When statistics are factored in for the current crises in Syria and the Central African Republic, these numbers will again grow.
Despite the rise in civilian casualties and the continuing if not growing problem of state-sponsored violence, prosecuting individuals for war crimes and other atrocities remains an “historical anomaly.” Since 1948, international and regional tribunals have indicted approximately 825 persons, a number that pales in comparison to the more than three million victims of deliberate crimes and atrocities.
Given this disparity, we must ask: are we committed to international criminal justice, and are we succeeding or failing to uphold the principles upon which international law is based?
The Foundation of International Criminal Justice
The journey to formulate an international legal system premised on accountability, rather than impunity, started in earnest with the Nuremberg Trials. US Chief Prosecutor Robert H. Jackson, in his opening statement, expressed hope that achieving accountability for atrocities would prevent them from being repeated:
“The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilisation cannot tolerate their being ignored, because it cannot survive their being repeated.”
Nuremberg crystallised the notion that basic rights inhere in individuals, and this spawned the international human rights regime we know today. Little progress was made during the Cold War, but eventually a strengthened doctrine emerged whereby individual human rights could “trump” state sovereignty. Intended to protect civilians and prevent the abuse of power, it was a paradigm shift that would change international law forever. The principles and institutions that emerged were regarded as monuments of intellectual and legal achievement. There was a sense of optimism and commitment to the idea that sovereign nations could achieve shared goals through the mechanisms of transparent international bodies and agreements.
The first test came when the UN Security Council invoked Chapter 7 powers to establish, in 1993 and 1994 respectively, ad hoc criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). Representing a breathtaking change in criminal prosecution, these tribunals signalled a global preparedness to prosecute serious international crimes through established jurisprudence and legal institutions.
The ICTY and ICTR both got off to a rocky start, but their ultimate success opened the door to a more permanent system of international criminal justice. The 2002 ratification of the Rome Statute, the basis for the International Criminal Court, was again a pivotal development. The creation of the ICC reflected broad determination that grave breaches of international humanitarian law would not go unpunished. According to the Court’s founding principles, there should be no impunity, even for Heads of State, and the Court would ensure that individuals accused of genocide, war crimes, or crimes against humanity would stand trial and be given due process.
The ICC in Trouble
By 2013, however, the ICC was showing signs of vulnerability. It’s a sobering fact that the Court has successfully prosecuted only one defendant in twelve years. Moreover, commitment to the Court is ebbing, in at least three critical respects.
First, ratification of the ICC and, thus, acceptance of its jurisdiction, is still far from global. To date, only 122 states have signed and ratified the Rome Treaty. Key states such as the US, China, India, and Israel have refused to accede to the Court’s jurisdiction, creating an impunity gap. There is no effort to bring these states closer to ratification. The question thus remains – after twelve years in existence, can an “international” court be credible without the active participation of key states?
By 2013, the ICC was showing signs of vulnerability. It’s a sobering fact that the Court has successfully prosecuted only one defendant in twelve years.
Second, the ICC is increasingly undermined by political tensions. While the Court’s ability to carry out its mandate grows uncertain, outright attacks on its authority have gained traction. Uncooperative States Parties have emerged as an “enemy from within,” denying the Court its basic powers and, arguably, tainting its jurisprudence.
Resistance to the ICC is also emerging from many African states. At the heart of their grievance is the fact that, to date, all eight situations before the Court involve African states. The African Union has called for an en masse withdrawal from the Court and proclaimed that no African sitting Head of State will be tried by the ICC.
Third, the UN Security Council has failed to develop a working relationship with the Court. The Security Council has referred two matters to the Court – Sudan and Libya. The UNSC’s involvement in both cases, however, and its active support for the Court’s orders, have basically ceased. There is also a problem of selective referral, often influenced by the political dynamics of the Security Council and the veto power of its permanent members. This is illustrated by the continuing conflict in Syria. While there is a clear need to address the Syrian crisis, the Security Council has not referred the situation to the Court. As the international community struggles over how to respond, there remains an inevitable tension between achieving accountability for crimes and managing a political minefield.
Other Justice Mechanisms
At the turn of the millennium, it seemed likely that the principle of universal jurisdiction would become an important means of bringing individuals who had long evaded justice to account. These early hopes notwithstanding, universal jurisdiction has not come to play an appreciable role in countering impunity. Based on the most literal interpretation, universal jurisdiction gives the forum state jurisdiction over offenses committed abroad, even if the accused is not on forum state territory. Application of the principle is based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the accused, or any connection to the forum state. Most importantly, the principle does not require an assessment of relevant “personal jurisdiction.” Thus, any state has the authority to unilaterally pursue an action against an individual, regardless of that person’s nationality. In the past, states were more accepting of absolute universal jurisdiction. This aggressive application of the principle made it considerably more likely that those responsible for committing atrocities would be brought to justice, ensuring that accountability would trump impunity.
However, over the past fifteen years, evidence of states applying universal jurisdiction is strikingly scant. States and their courts have added restrictive conditions, and they are reluctant to base their jurisdiction on universality alone. With little case law, development of this once promising area of law has stalled. What might have been a powerful complementary means of achieving justice and deterring future crimes has been pointedly disregarded. A 2011 survey by Amnesty International found that although 75.1% of UN Member States provide for universal jurisdiction over at least one international crime, only nineteen countries had instituted proceedings based on universal jurisdiction since World War II.5 Despite an emerging jurisprudence that universal jurisdiction applies to an expanding range of serious international crimes, one struggles to find a consistent and active application of the principle by national courts.
The newest international instrument for countering impunity is the Responsibility to Protect (R2P) doctrine, which came into effect in 2005. This UN-backed doctrine requires all governments to uphold their primary responsibility to protect their populations from the most heinous of crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity.
Most important, the doctrine calls on the international community to intervene in support of the nation state if national authorities manifestly fail to protect their citizens. This includes collective action through military intervention as “an exceptional and extraordinary measure.” R2P is meant to ensure international action when the UN Security Council rejects a proposal to act or fails to deal with a humanitarian crisis “in a reasonable time.” While there was some effort to protect R2P decisions from Security Council veto power, China vetoed a proposal for collective action in Darfur. Undoubtedly, the political dynamics of the Security Council are not always aligned with the mechanisms of international justice. Even so, the impotence of the R2P doctrine is all too apparent.
The ability of R2P to be a useful tool was harmed by its invocation in Libya, where the agenda quickly shifted from the narrow protection of civilians to one of broader regime change.
The ability of R2P to be a useful tool was harmed by its invocation in Libya, where the agenda quickly shifted from the narrow protection of civilians to one of broader regime change. States are naturally wary of using civilian protection as cover for a wider agenda. When the sanctity of national sovereignty is challenged under such as agenda, states will err on the side of caution.
Syria is a case in point. While the US and UK invoked R2P, China and Russia did not trust the underlying motivation and were fearful of repeating the Libya scenario. The Syrian crisis shows that the R2P doctrine does not clearly delineate between violations of humanitarian norms and breaches of security. R2P is really a humanitarian doctrine, not a conflict resolution doctrine. Once the discussion of regime change enters the lexicon, R2P loses its legitimacy.
The international community is at a crossroads. The ability to deliver justice for international crimes is being tested and it is incumbent upon the international community to reassert its commitment to accountability. It remains to be seen whether the problems described in this article are temporary setbacks, or deepening fault lines along which the international legal order will further rupture. Much will depend on how we prioritise efforts to support the legal mechanisms that underlie accountability – the ICC, Universal Jurisdiction, and the Responsibility to Protect Doctrine. The structure is there. We must find the political will to support it.
I once stood among a sea of 20,000 people on a dirt airfield outside Skopje, Macedonia, listening to one harrowing story after another. It was July 1999 and these were refugees from the war in Kosovo, mostly women and girls; the men had been forced to stay behind. I remember vividly a small girl’s face pressed against the window of a bus. Her eyes stared blankly, but her expression was filled with desperation. I often wonder what happened to her. That little girl’s life was undoubtedly scarred. What do we tell her – and the millions like her – about the world’s commitment to accountability for the crimes she witnessed?
About the Author
Mark Ellis is Executive Director of the International Bar Association (IBA) and leads the foremost international organization of bar associations, law firms and individual lawyers in the world. Dr. Ellis was a long-time consultant to The World Bank on investment policies in Central and Eastern Europe and the former Soviet Union. He is presently an Adjunct Professor at The Florida State University College of Law. A frequent speaker and media commentator on international legal issues, he appears regularly on CNN International, Al Jazeera, and BBC. He has published extensively in the areas of international humanitarian law, war crimes tribunals, and the development of the rule of law and his writing has appeared in The New York Times, The International Herald Tribune, The Sunday Times (South Africa) and The London Times. His latest publication – Sovereignty and Justice: Creating Domestic War Crimes Courts within the Principle of Complementarity – will be published in 2014.
1. The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (M. Cherif Bassiouni ed., Intersentia 2010).
2. UCDP/PRIO Armed Conflict Dataset v.4-2013, 1946 – 2012; UCDP/PRIO Armed Conflict Dataset Codebook v.4-2013. Data first presented in Gleditsch, Nils Petter, Peter Wallensteen, Mikael Eriksson, Margareta Sollenberg, and Håvard Strand, Armed Conflict 1946-2001: A New Dataset, 39 J. Peace Res. 615-637 (Sep. 2002). Latest presentation of data in Lotta Themner & Peter Wallensteen, Armed Conflicts, 1946-2012, 50 J. Peace Res. 509-21 (Jul. 12, 2013). Composite figure using UCDP Battle-Related Deaths Dataset v.5-2013, 1989-2012; UCDP Battle-Related Deaths Dataset Codebook v.5-2013. Latest presentation of data in Ralph Sundberg (2008), Collective Violence 2002 – 2007: Global and Regional Trends, States in Armed Conflict 2007 (Lotta Harbom and Ralph Sundberg eds., Uppsala: Universitetstryckeriet). PRIO Battle Deaths Dataset 3.0; PRIO Battle Deaths Dataset 1946–2008 Codebook for Version 3.0. Data presented in Lacina, Bethany & Nils Petter Gleditsch, 2005. ‘Monitoring Trends in Global Combat: A New Dataset of Battle Deaths’, European Journal of Population 21(2–3): 145–166.
3. The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (M. Cherif Bassiouni ed., Intersentia 2010).
4. Stuart Casey-Maslen (ed), The War Report 2012 (Oxford University Press 2013).
5. Universal Jurisdiction: A Preliminary Survey of the World, Amnesty International (Amnesty International Publications, 2011) available online at http://www.amnesty.org/en/library/asset/IOR53/004/2011/en/d997366e-65bf-4d80-9022-fcb8fe284c9d/ior530042011en.pdf at p.12.