Bending the Arc
"The ICC must look to the ICTY as a blueprint, gathering concrete and consistent support from international actors who can effectively pressure parties on the ground to cooperate," writes Jacqueline McAllister.
Since its creation in 2002, the International Criminal Court (ICC) has launched investigations in eight countries—the Central African Republic, Cote d’Ivoire, Darfur (Sudan), Democratic Republic of Congo, Kenya, Libya, Mali, and Uganda. The investigations have resulted in 22 cases against individuals accused of committing the most serious international crimes, including war crimes, crimes against humanity, and genocide. The ICC’s track record in trying these cases, however, has been less than stellar. Indeed, it has only convicted two Congolese warlords (and acquitted one, Congolese warlord Mathieu Ngudjolo Chui). The ICC has also been criticized for failing to bring many heads of state, including Sudanese President Omar Bashir (who stands accused of genocide in Darfur), to trial. The controversy surrounding the ICC’s trial history stems in part from its design. Unlike its forerunners in Nuremberg and Tokyo, the ICC does not have military forces at its disposal to arrest defendants. Instead, it must rely on the cooperation of state parties to do so. However, many African states—who could make arrests—have been reluctant to support the ICC, which they view as biased against the continent. In short, it is easy to view the ICC as a paper tiger. However, international prosecutions can be successful and the International Criminal Tribunal for the former Yugoslavia (ICTY) can provide the ICC with a model for how it might eventually succeed in bringing international criminals to justice.
Current criticism of the ICC mirrors that which was levied against the ICTY in its early years. Like the ICC, the ICTY—which is now in the process of shutting down—has no police powers and operated in active war zones. International headlines lambasted the ICTY year after year for its failure to prosecute top leaders who allegedly played roles in the Srebrenica massacre. Nonetheless, and to the surprise of many, the court did eventually manage to secure the arrests of the region’s most notorious leaders. It did so as a result of a combination of pressure from the West and by taking advantage of shifting domestic political currents in the Federal Republic of Yugoslavia (FRY; Serbia and Montenegro) that supported bringing these leaders to justice. Twenty years after the Srebrenica genocide, it is thus worth reflecting on the ICTY’s experience, which can provide a blueprint for how the ICC might succeed in turning the tide on impunity for heads of state.
BEGINNING IN THE BALKANS
It is easy to view the ICC as a paper tiger. The first head of state to stand trial at the ICTY was former Serb and Yugoslav President Slobodan Milosevic. Milosevic played a key role in fueling horrific atrocities throughout Bosnia, Croatia, and Kosovo. The ICTY indicted him just weeks before the end of the NATO’s 1999 campaign in Kosovo, making him the first head of state to face war crimes charges. Even after NATO’s devastating campaign, Milosevic managed to hold on to power for over a year. When his government finally fell in late 2000, powerful government officials continued to resist international pressure to detain and extradite him. Instead, officials allowed him and his family to continue living in Belgrade’s White Palace, which had been the home of Serbia’s kings.
Local authorities only took steps to arrest Milosevic after conditional U.S. assistance expired—aid that was dependent on the Federal Republic of Yugoslavia’s cooperation with the ICTY. Still, leading elites, including new Yugoslav President Vojislav Kostunica, remained reluctant to transfer Milosevic to the ICTY, preferring to prosecute him on corruption charges within the Serbian court system. Yugoslavia’s new Prime Minister Zoran Djindjic, however, saw the nation’s policy on Milosevic as an obstacle to much-needed reforms, and turned Milosevic over to the ICTY days before a vital international aid conference. U.S. Secretary of State Colin Powell had conditioned Washington’s participation in the aid conference on Milosevic’s transfer, facilitating a reformist shift in Serbian politics that brought Milosevic to The Hague.
Despite the court’s success in securing Milosevic’s arrest, the ICTY continued to face criticism for failing to bring other equally notorious leaders, such as Bosnian Serb President Radovan Karadzic, to justice. In 1995, the ICTY charged Karadzic with genocide and crimes against humanity committed during the Bosnian War. Among other charges, prosecutors accused Karadzic of being a key architect behind the Siege of Sarajevo and the Srebrenica massacre.
After the Bosnian War, international forces were reluctant to pursue Karadzic. NATO peacekeeping forces had the authority to arrest him, but they initially avoided doing so out of concern that his arrest might spark renewed fighting that would endanger its forces. As a result, Karadzic remained in power for a year after the end of the Bosnian War, doing his utmost to undermine the peace process. NATO finally saw the value in making an effort to arrest Karadzic in 1997 after officials acknowledged that he constituted a key obstacle to progress on the Dayton Accords. However, he still managed to evade arrest several times, including once based on information received from a French liaison official in Bosnia. Alleged sightings of Karadzic both in and outside of the region led the media to report that he appeared to be everywhere except in The Hague. In the end, Karadzic evaded arrest for 13 years before he was captured by Serbian authorities in 2008 and then transferred to the ICTY.
Western pressure combined with shifting domestic political currents in the FRY eventually resulted in Karadzic’s day in court.
As with Milosevic’s transfer, Western pressure combined with shifting domestic political currents in the FRY eventually resulted in Karadzic’s day in court. In 2003, the European Council identified Balkan nations as potential candidates for European Union (EU) membership—a move that required the FRY to hand over war crimes suspects to the ICTY. The summer before Serbia formally applied to join the European Union (Serbia and Montenegro were then in the process of becoming separate states), its officials arrested and then transferred Karadzic to The Hague. Once again, Western pressure, in conjunction with reform efforts on the ground, resulted in the handover of a former head of state who is accused of violating international law and human rights.
Serbia’s bid to join the European Union eventually resulted in the transfer of Serbian military leader Ratko Mladic, as well. Mladic, like Karadzic, had become a potent symbol of the Serbian forces’ ethnic cleansing campaign against Bosnian Muslims and Croats. Mladic is alleged to have played a key role in the siege of Sarajevo, and is known as the “Butcher of Srebrenica” for his suspected role in the slaughter of thousands of boys and men in the town. The ICTY charged Mladic with genocide and crimes against humanity near the end of the Bosnian War.
Mladic remains immensely popular in Serbia, which helps to explain why he managed to evade prosecution for almost 16 years. After the ICTY indicted him, Mladic fled to Belgrade, where Milosevic shielded him from prosecution. For years, he lived openly; but after Milosevic’s fall, Mladic was forced to go into hiding. In 2011, Serbian President Boris Tadic announced to a stunned public both in and outside of Serbia that authorities had arrested Mladic about 50 miles outside of Belgrade. Serbian authorities subsequently transferred him to The Hague, where he is currently on trial. Mladic was counted among the last batch of fugitives that Serbia was required to transfer to the ICTY in order to formally begin its EU membership negotiations.
USING LEVERAGE FOR JUSTICE
The ICTY’s experience underscores how shifts in domestic politics, when paired with international pressure, can bring war criminals to justice. If the ICC can get states and international bodies to prod nations toward arresting former leaders through financial and trade incentives, it is possible that the court can replicate the successes of the ICTY. As of late, however, the ICC has fallen short in its efforts on this score.
The most recent setback for the ICC involves Sudanese President Omar Bashir’s surreptitious flight out of South Africa in spite of a travel ban. In 2009, the ICC issued a warrant for the leader’s arrest for war crimes and crimes against humanity committed in Darfur. Since then, Bashir has traveled relatively freely, visiting Kenya and Nigeria, which are parties to the ICC. This past June, Bashir traveled to South Africa for an African Union (AU) Summit. While there, the North Gauteng High Court in Pretoria ruled that he must remain in the country, pending a decision about South Africa’s legal obligation to arrest him, based on their membership in the ICC. Hours before the court ruled that South Africa did have an obligation to arrest and transfer Bashir, he managed to leave the country with the assistance of government officials. According to The New York Times, when Bashir landed in Khartoum, “thousands of supporters greeted him with patriotic and traditional songs, carrying flags, placards, banners and even a makeshift coffin with the words ‘laying the International Criminal Court to its final resting place’ written on its side.”
Clearly, Bashir still has domestic and international support. Perhaps his best shield from prosecution is the AU, which has campaigned aggressively against the ICC and claims it is biased against the continent due to its focus on African cases. The AU argues that no sitting head of state, including Bashir, should face prosecution before the ICC, and has informed its members that they are not obligated to comply with the ICC’s orders.
Besides the AU, the United Nations Security Council (UNSC) has taken a back seat in the efforts to secure Bashir’s arrest and transfer to The Hague. In the past six months, ICC Prosecutor Fatou Bensouda has made two very public appeals to the UNSC requesting that it pressure Sudan and others to comply with the international warrant for Bashir’s arrest. Both appeals have gone unanswered, as any punitive measures would likely face opposition from China and Russia, given those two countries’ extensive military and economic interests in Sudan. As demonstrated by the ICTY’s record, trying Bashir will require cooperation from international and domestic actors who either have access to him, or can exercise influence over those closest to him. Given that such support is in short supply for the ICC, it is clear it will face an uphill battle in prosecuting him.
Bensouda’s office has also faced challenges in its cases against current Kenyan heads of state. After a vigorously contested election in 2007, Kenya descended into violent chaos. An estimated 1,100 people lost their lives and as many as 650,000 were forced to flee their homes. The AU team that mediated an end to the conflict pressured Kenyan officials to prosecute post-election violence in a special tribunal. After they failed to do so, former United Nations Secretary–General Kofi Annan convinced Kenyan President Mwai Kibaki to share his confidential list of suspected perpetrators with the ICC. In 2011, the ICC summoned six Kenyans to The Hague, including political rivals William Ruto and Uhuru Muigai Kenyatta. Immediately after their summons, Ruto and Kenyatta formed a coalition that won control of the Kenyan government, securing domestic support that shielded them from the ICC’s reach.
Both Kenyatta and Ruto have launched a concerted effort to undermine the ICC in Africa. Among other things, they have sent diplomats around the continent in an effort to convince ICC members to withdraw from the Court. They even tested African leaders’ appetite for withdrawing from the Court en masse during an extraordinary October 2013 meeting of the AU. And as a result of the AU’s lack of cooperation, Bensouda was recently forced to withdraw her case against Kenyatta amid accusations that the Kenyan government had tampered with witnesses and failed to share vital evidence with the prosecutor’s office. Ruto still faces charges in The Hague, but Besnouda faces similar challenges with that case.
Kenyatta—and potentially Ruto—managed to skirt prosecution as a result of key domestic and international support. The 2013 elections that brought both to power were praiseworthy for being more fair and peaceful than Kenya’s 2007 election, and both leaders have presided over a boom in the Kenyan economy. The duo have received Western support in their fight against al Shabab, a terrorist group that has recently began to target Kenya. If the ICC is to try both Kenyatta and Ruto successfully, they will need substantive support from domestic and international groups. At the moment, however, such support is lacking.
Much like the ICTY in its first few years, the ICC faces a situation in which many indicted heads of state have enough domestic and international support to shield them from prosecution. Nonetheless, political tides can and do change. As demonstrated by the Milosevic, Karadzic, and Mladic cases, indictments and international arrest warrants do not usually disappear. Instead, they create the basis for today’s supporters to become tomorrow’s jailers, particularly if suspected war criminals threaten vital international support and reform efforts. The ICC must look to the ICTY as a blueprint, gathering concrete and consistent support from international actors who can effectively pressure parties on the ground to cooperate. While Bashir and others might currently have enough support to undermine the ICC’s efforts to prosecute them, time will ultimately tell if they can sustain it, succeeding where so many other top leaders—who were once also thought untouchable—failed.
The opinions expressed here are solely those of the author.
This article was originally published in Foreign Affairs.
About the Author
Global Europe Program
The Global Europe Program addresses vital issues affecting Europe’s relations with the rest of the world through scholars-in-residence, seminars, international conferences and publications. These programmatic activities cover wide-ranging topics include: European energy security, the role of the European Union and NATO, democratic transitions, and counter-terrorism, among others. The program also investigates comparatively European approaches to policy issues of importance to the United States, including migration, global governance, and relations with Russia, China and the Middle East. Read more