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International Justice

The emerging system of international justice made important strides in 2005, helping to fill some of the gaps left by waning governmental support for human rights.  Most notably, the International Criminal Court (“ICC”) publicly revealed its first indictments in October.  The targets were Joseph Kony and four other leaders of the Lord’s Resistance Army (“LRA”), the notorious Ugandan rebel group that has built a military force by kidnapping children and forcing them to commit all manner of atrocities.  The indictments encountered predictable objections from those who said they would disrupt the Ugandan peace process, but most observers judged the peace process moribund anyway—more a device for the LRA to bide time and regroup than a conscientious effort to reach an agreement with the Ugandan government.  Indeed, by further delegitimizing the LRA leadership, the indictments will arguably hasten an end to the war by making it politically more difficult for the Sudanese government to continue to harbor the LRA in southern Sudan, particularly as Khartoum cedes power there to the Sudan People’s Liberation Army as part of the separate Sudanese peace process. 

The ICC received a major boost in March when the U.N. Security Council gave it jurisdiction over atrocities committed in Darfur.  The major obstacle to Security Council action was the United States, given the Bush administration’s ideological hostility to the court because of the court’s theoretical power to prosecute a U.S. citizen for genocide, war crimes, or crimes against humanity committed on the soil of a government that had ratified the ICC treaty.  Germany began the process of overcoming that resistance by leading the effort at the Security Council in September 2004 to establish a U.N. commission of inquiry into the ethnic cleansing in Darfur.  The commission recommended in January 2005 that the Security Council refer the situation in Darfur to the ICC. 

The Bush administration struggled to suggest alternatives to the ICC, from adding a chamber to the overworked International Criminal Tribunal for Rwanda to the unlikely prospect of creating from scratch a brand new African Criminal Court.  Washington viewed these alternatives as preferable because, even if less effective, they were less likely to have jurisdiction over Americans.  Strong backing for the ICC from many of its African members, as well as the E.U. and particularly France, helped to move beyond these inferior options.  Britain also played a useful role in the negotiations.  Faced with a choice between granting effective immunity to the killers in Khartoum and accepting ICC jurisdiction over Darfur, the Bush administration, along with China, abstained on the ICC resolution at the Security Council, allowing the resolution to be adopted.  Russia voted in favor of the resolution.  That vote means that the ICC henceforth has become a realistic option for prosecuting even tyrants whose governments have not ratified the ICC treaty.

Yet the Bush administration continued to take extraordinary steps to avoid any prospect that the court would exercise jurisdiction over a U.S. citizen.  Washington continued to blackmail governments to accept bilateral immunity agreements in which they promise never to send an American to the ICC.  And it insisted that non-ICC states parties have exclusive jurisdiction over their nationals in Darfur.

The ICC was never the appropriate tribunal to try Saddam Hussein and his henchmen in the deposed Iraqi government, because they committed the bulk of their crimes before July 1, 2002, when the ICC’s jurisdiction took effect.  Yet fear that new international tribunals might legitimize multilateral justice was part of the reason that the Bush administration insisted on trying the former Iraqi leadership before an Iraqi-led tribunal.  The administration stuck stubbornly to that decision in 2005, even though the Iraqi Special Tribunal found itself plagued with problems, including its susceptibility to political interference by the new Iraqi government, its members’ lack of experience with complex trials, the troubling deficiencies in its adopted procedures, and its difficulty in safeguarding the participants in its proceedings.  An internationally led tribunal, such as the mixed international-national tribunal used in Sierra Leone, could have overcome most if not all of these difficulties.

Meanwhile, the international Yugoslav tribunal made enormous progress in securing the arrest of indicted suspects.  U.S. and E.U. pressure on Serbia yielded the surrender of fourteen people who had been indicted but remained at large between October 2004 and April 2005.  With that influx of defendants, 131 suspects had appeared before the tribunal, while only nine suspects remained fugitives, although those at large included such leading figures as the Bosnian Serb wartime army chief, Ratko Mladic, the Bosnian Serb wartime president, Radovan Karadzic, and Croatian General Ante Gotovina. 

The Rwandan tribunal also significantly picked up the pace of its prosecutions in 2005, although it continued to focus exclusively on the genocide and, disturbingly, still had not issued indictments for atrocities committed by the Rwandan Patriotic Front (“RPF”).   Spain stepped into this void by launching investigations into some dozen RPF officers.  Similarly, Belgium indicted Hissene Habre, the dictator of Chad in the 1980s, whose mass murder and torture are not covered by any existing international tribunal.  After having promised repeatedly that he would extradite Habre if the latter was indicted by Belgium, Senegal’s President Abdoulaye Wade suffered a failure of will in November and instead sent the matter to the African Union to resolve. 

As for the Special Court for Sierra Leone (“SCSL”), its most important defendant, former Liberian President Charles Taylor, continued to enjoy a comfortable exile in Nigeria.  In June 2003, the SCSL unveiled an indictment of Taylor for his role in supporting the barbarous Revolutionary United Front rebels, known for murder, rape, and hacking off the limbs of their many victims during the Sierra Leone civil war. 

Nigerian President Obasanjo did a service by providing Taylor refuge in August 2003 to ease him out of Liberia without further bloodshed.  But as the U.N. Security Council reaffirmed in November 2005, that refuge was meant to be only temporary.  Pleas for Obasanjo to deliver Taylor for trial were also made in the course of 2005 by the European Parliament, in February; the U.S. Congress, in May; the U.N. high commissioner for human rights, in July; and the Mano River Union, consisting of Guinea, Liberia, and Sierra Leone, also in July. 

More than two years since Taylor’s flight from Liberia, however, President Obasanjo stubbornly refused to hand him over to the SCSL.  Obasanjo said that he would abide by a request from a democratically elected Liberian government to deliver Taylor for trial, but that approach passed the buck to a new government that legitimately may fear retaliation by Taylor’s many violent allies in Liberia.  It is to be hoped that Liberian President Ellen Johnson-Sirleaf, newly elected in November, will make such a request, but if Obasanjo were a true statesman, he would take the heat himself rather than hide behind the new Liberian president.  The African Union, for its part, should encourage such a move, but rather than seeking a victory for justice and the rule of law—ostensible goals of the African Union—some A.U. leaders in 2005 seemed more worried about setting a precedent that someday might facilitate their own prosecution. 

Justice made little progress in East Timor.  Due to a lack of political and financial support, the U.N. tribunal there shut down in May, six years after it was established. The tribunal did manage to prosecute and convict a significant number of East Timorese militia members, but the majority of the Indonesians indicted, including General Wiranto, the former Indonesian defense minister and armed forces commander, remained at large in Indonesia with no prospect of trial. In the meantime, both the U.N. Security Council and U.N. Secretary-General Kofi Annan, caving into Indonesia as a regional power and important counterterrorism ally, continued to sit on a report commissioned by the secretary-general that had recommended keeping the tribunal alive.  The report had also recommended the establishment of an international criminal tribunal if Indonesia continued to be uncooperative on the justice front, but the Security Council returned the report to the secretary-general without taking action.