International Criminal Justice

Since the establishment of the International Criminal Tribunal for the Former Yugoslavia in 1993, the rapid and accelerating development of international criminal law has changed the world we live in. Crimes of war and atrocities against civilian populations have been a tragic and persistent scourge on humanity and are not likely to disappear anytime soon. But for perpetrators of these offenses, the calculations have changed. Now dictators, warlords, and generals know that their actions will be scrutinized by prosecutors and the possibility exists that those who violate the laws of war and commit crimes against humanity will one day face justice.

Definitely, this is a good thing. The world is a better place when the law can bring justice to victims who in earlier times could not have hoped to see the mighty who inflicted their suffering face judgment in a court of law. I will never forget the many victims I have seen come into international tribunals and face former high-ranking politicians, generals and even a former President. I will always remember Alusine Conteh, a man who had his left hand amputated by rebels in Sierra Leone and when the perpetrators then asked to have his 3 year-old son brought forward, instead volunteered to have his right hand amputated to protect his son; and Mustafa Mansaray, another man with both hands amputated and who was in a wheelchair. He sat across from a former President and who told the court that the reason he had come to testify was that this man, Charles Taylor, had threatened his country would taste the “bitterness of war.” Mr. Mansaray raised the stumps on his arms and told the court “This is my bitterness.”

While the world is a better place for holding individuals responsible for these crimes, it is not a simpler place. Just this year we witnessed the rapid reaction of the international community to threats to civilian populations and mass crimes in Libya. In addition to military intervention to use air power to protect civilians, the United Nations Security Council voted to refer the situation in Libya to the International Criminal Court (the “ICC”). The referral put Gaddafi and all those involved in the conflict on both sides on notice that actions targeting civilians could lead to criminal sanctions. While the referral puts added pressure on the Libyan regime and hopefully will discourage targeting of civilians, it complicates any negotiations to end the conflict by having Gaddafi step down and leave the country. The issue of when, if ever, the fight against impunity for crimes against humanity can be compromised in the interests of ending conflict and the immediate protection of vulnerable communities is one of many issues with which the nascent field of international criminal justice will have to grapple in coming years. The field is in its infancy and much remains to be developed as international criminal justice continues to develop and mature an accelerating pace.

Libya has not signed the Rome Statute creating the ICC and the court would not have had jurisdiction over these crimes without the Security Council referral. While the United States is also not a signatory, the US has cooperated with the court and US policy clearly has been moving to recognition of the important role the court can play in international affairs and protecting the most vulnerable. In 2005 during the Bush administration, the US abstained from a vote referring the situation in the Darfur region of Sudan (which the US congress had recognized as genocide) to the ICC. The United States has also played a key role in supporting other modes of international criminal justice, including the ad hoc UN tribunals for Yugoslavia and Rwanda, the Special Court for Sierra Leone and the Serious Crimes Panels in East Timor.

The development of international criminal law has complimented and accelerated development of international and domestic law efforts to hold not only individuals but also corporations and states responsible for human rights violations. The International Court of Justice recognized that the 1995 killing of close to 8,000 men and boys in Srebrenica constituted genocide and that Serbia had violated its obligations under the Genocide convention by failing to prevent the crime and failing to cooperate in efforts to punish its perpetrators. However, the court failed to order any compensation or remedies for Serbia’s failure to fulfill its obligations. In the United States, courts have recognized the rights of plaintiffs to file claims in federal court for violations of international law committed abroad under the Alien Tort Claims Act. Increasingly, courts are extending jurisdiction to find remedies for serious violations of fundamental rights committed outside a state’s borders, providing remedies for those who otherwise would have no hope for justice. This is a dynamic and critical area of the law that will continue to evolve in the coming years. Participants in the field have the privilege to contribute to development of an area of law that can make a real difference in preventing some of the horrendous crimes that would otherwise be inflicted on many thousands, perhaps millions of innocent civilians and to bring a measure of justice to those who have already suffered.