In the past months, international justice has returned to the center stage of multilateral diplomacy, the most recent instance being the arrest on May 26th of former Bosnian Serb General Ratko Mladic, who now faces trial in The Hague. Preceding that was the May 19th call by President Ouattara of Côte d’Ivoire for the International Criminal Court (ICC) to investigate the post-election violence in his country. And on February 26th, the UN Security Council voted unanimously to refer the situation in Libya to the ICC. In addition, the UN and NGOs such as the International Crisis Group continue to call for an investigation of the final stage of the conflict in Sri Lanka.
Calls for justice and accountability are also growing louder in the Middle East. Former President Hosni Mubarak is already facing trial in Egypt, former leaders may face trial in Tunisia, and some have even called for an ICC investigation in Syria.
Referring cases to the ICC and other international tribunals should be seen as a first step of a coherent political strategy, rather than a solution in itself. Failing to provide viable enforcement mechanisms and timely prosecutions could lead to undermining the credibility of international justice as a diplomatic and accountability tool.
Since the establishment of the ad hoc tribunals for Yugoslavia and Rwanda, the field of international criminal justice has witnessed a unique institutional evolution. Special tribunals have been established in Cambodia, East Timor, Lebanon, and Sierra Leone. The ICC, set up in 2002 after the entry into force of the 1998 Rome Statute, marked the most important development.
The results have been mixed. Trials create a detailed record of what happened and clarify who is responsible for it, bringing a sense of closure to victim communities. However, these institutions have faced criticism for high costs, slow progress, limited impact (especially on victims), and, in the case of the ICC, an exclusive focus on Africa.
There has also been controversy about the impact of justice on peace. Some believe that justice reinforces peace. Others view justice as an obstacle for peace negotiations, as leaders don’t have an incentive to end a conflict if they fear arrest. These tensions came to a head in 2008 when the ICC indicted Sudanese President Omar al-Bashir. Since then, the African Union has actively lobbied for the ICC’s investigations in Darfur to be deferred and, subsequently, unsuccessfully supported efforts by Kenya to halt investigations of the post-election violence in 2007-2008.
Despite all this, in 2011, international justice mechanisms have been frequently used and publicly called for, as we have seen in Côte d’Ivoire, Libya, and possibly other places in the Middle East and beyond (e.g. Sri Lanka).
And while the unexpected arrest of Mladic is of great significance to the Balkans (with the most-wanted war criminal in the region now facing trial and Serbia moving a step closer to EU accession), it also points to a fundamental problem of international justice: international courts have no enforcement mechanisms. If states lack incentives or are otherwise unable to make arrests, war criminals remain at large.
Referring cases to the ICC and other international tribunals should be seen as a first step of a coherent political strategy, rather than a solution in itself. Using the ICC and other international tribunals as a band-aid measure undermines the cause of international justice (which is to end impunity and provide victims with a peaceful and meaningful mechanism to punish atrocity crimes), erodes any deterrent effect, and serves as an embarrassment for the states that supported the decision to hand cases over to the ICC and other tribunals. Therefore:
– Finding ways to induce states to arrest war criminals is of key importance. This also involves considering the consequences of repeated non-cooperation of states unwilling to make arrests.
– The key challenge is finding the necessary police or military assets capable of carrying out the high-stakes operations of arresting war criminals, which are both costly and dangerous.
States ought to fully consider how Court decisions can be enforced. Given how frequently the ICC and other tribunals have been called upon to investigate crimes recently, this thinking has to take place now.