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Freeland, Steven --- "Effectiveness of International Criminal justice" [2008] ALRS 16

Last Updated: 25 July 2010

The ‘Effectiveness’ of International Criminal Justice

Professor Steven Freeland[1]

Just over two years ago, Slobodan Milosevic died whilst in detention at the International Criminal Tribunal for the former Yugoslavia in The Hague. His death was a disappointment to the many thousands of victims and their families who had been affected by his actions and who were suddenly deprived of the opportunity for finality and a sense of real justice. In this regard, the fact that his trial had continued for over four years and was still some time away from completion at the time of his death certainly did not portray the system of international criminal justice that has evolved since the early 1990s in its most positive light. Indeed, many were critical of the long drawn-out judicial process involved, with some even arguing that to accord Milosevic with the opportunity to fully defend himself and to guarantee his rights as an accused was a waste of time and the incorrect way to deal with someone who was ‘clearly guilty’.

There is no doubt that Milosevic had been involved in the commission of gross violations of human rights, as well as breaches of international humanitarian law (the contemporary name for what used to be known as ‘the laws of war’). He was charged with crimes against humanity and, had his trial reached its conclusion, he would almost certainly have been found guilty of these charges. He was also charged with genocide – the ‘crime of crimes’. This is a very difficult crime to prove, given that it requires the accused to have the requisite dolus specialis - an intention to ‘destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. Although it is, of course, impossible to be sure, based on the way that his trial had proceeded, as well as the evidence presented, there was a real possibility that Milosevic might have been acquitted on the charge of genocide. This would, no doubt, have given rise to much comment and, I suggest, outrage in some quarters by people who would then question whether international criminal justice was ‘doing its job’.

Over the past fifteen years, the international community has established a number of International and Internationalized Courts and Tribunals charged with the mandate to prosecute those persons who are accused of committing ‘crimes that shock the conscience of humanity’. This system of international criminal justice has seen ad hoc Courts and Tribunals established to deal with crimes committed in the Balkans, Rwanda, Sierra Leone, Timor-Leste, Cambodia and, in the next year or so, Lebanon. In addition, of course, a permanent court, the International Criminal Court, has been operating since 2002 and is in place to deal with crimes that occur in the future, rather than just specific geographically or temporally restricted conflicts, as had been the case with the ad hoc Courts and Tribunals.

Yet, as this process evolves, and the costs associated with such trials continue to escalate, it is worthwhile reflecting on whether international criminal justice has been, is, or ever can be ‘effective’. Certainly, we have seen the enormous development in international criminal law over the past decade as a way to enforce the rules of international humanitarian law. But does it work? How does one evaluate the ‘success’ of international criminal justice and what does this tell us about the future effectiveness of the various International Courts and Tribunals, particularly the International Criminal Court? In this regard, I have set out below four possible criteria whereby such an assessment might be attempted.

Possible Measures of Success

Criteria 1 - The End of All Wars?

In the first place, if success is to be regarded as a complete cessation of all wars, and an end to gross violations of human rights throughout the world, then it is obvious that the system of international criminal justice can never be effective. Warfare and violence appears to be an inherent part of the human psyche – indeed there has never been a period in the recorded history of humankind that has seen a total absence of war. This continues to the present day. Violations of international humanitarian law continue to shock the world every time we see them on television, or read about them in the newspapers. Leaders around the world call for action to stop the violations and prosecute the perpetrators - although sometimes such calls are disingenuous – leading to the further development of legal systems of international justice as the ‘solution’ to the problem.

This places an impossible burden on international criminal justice. Although a system based on the rule of law and public, transparent and fair trials represents an important component in addressing international crimes, the law cannot be left alone to cope with the problem. If ending all wars is the goal – and it should be even though it may be unattainable – then what is required is an acknowledgement of the entire context of conflict. This involves an examination of the relevant social, cultural, geopolitical, economic, geographical, developmental and equity considerations, so as to properly deal with the circumstances that lead people to commit horrific acts of violence and rely on large scale armed hostilities to resolve their disputes.

In this regard, the international criminal justice system is not to be regarded as an alternative to armed conflict – it is a mechanism by which those who violate fundamental norms relating to the rights of individuals and groups are brought to judicial account. The system only operates after the killing, rape, torture and ethnic cleansing has taken place. It would therefore be naive and unrealistic to measure the effectiveness of international criminal justice only in terms of the cessation of war. What is required if this is to ever happen is the sincere and determined political will on the part of all States to respect international law, to listen to the calls of those under threat, to react to the underlying issues that lead humans to fight each other and to take all steps to ensure that crimes such as these do not in fact occur.

Criteria 2 - A Reduction of the Number of Wars?

Some commentators suggest that, at the very least, the establishment of this system of international criminal justice should lead to a reduction in the overall number of armed conflicts being fought, as well as in the number of casualties and damage and destruction caused. At first glance, this might be a realistic expectation, and perhaps, to many people, an appropriate measure of success. However, once again, it is too simplistic. More and more armed conflicts – indeed the majority of wars now being fought – are internal conflicts. In this context, it appears to the observer that more rather than less horrendous acts of violence are being perpetrated, even in the face of this evolving system of international criminal justice.

With some obvious exceptions, the nature of warfare has largely moved away from the traditional ‘State versus State’ conflict, which has historically been based on a reciprocal respect (more or less) for some of the fundamental principles of international humanitarian law. Internal conflicts, as well as the increasing involvement of what are termed ‘non-State actors’, complicates efforts to regulate the conduct of hostilities between combatants. This is due in part to the reluctance of States to agree to binding legal standards regulating what have traditionally been regarded as internal matters.

This is highlighted by the fact that, when the 1949 Geneva Conventions were ‘upgraded’ further by two Protocols in 1977 – one dealing with international armed conflict (Additional Protocol I) and the other with conflicts of a ‘non-international nature’ (Additional Protocol II) – what was striking was the enormous disparity in the range of rules that were specified. Whereas Protocol I consists of over 100 articles, some of them quite detailed and ‘radical’ (at least for the time), Protocol II was far more modest (28 articles, of which only 18 were substantive in content). While, of course, the absolute number of provisions is not necessarily indicative of the content, it is clear to anyone familiar with both documents that there are many areas relating to internal armed conflicts that are simply not addressed in the relevant treaty norms.

In this regard, international lawyers increasingly rely on the rule of customary international law to ‘fill in the gaps’ in relation to this growing number of non-international conflicts. For example, Additional Protocol II does not include a provision expressly applying to such conflicts the principle of ‘distinction’, which obliges warring parties to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives and, accordingly, to direct their operations only against military objectives. This is to be compared to Additional Protocol I, in which the principle is included as a conventional norm. It is therefore necessary to draw upon the largely uncodified – and sometimes uncertain – rules of custom as the applicable ‘source’ of law, in order to clearly outline the restrictions upon this form of conflict.

Of course, the Statutes establishing the International Criminal Tribunals, including the International Criminal Court, do specify various crimes committed in non-international conflicts as falling within their respective mandates. However, the historical reluctance of States to accord such conflicts with the same restrictions as ‘traditional’ wars has been a factor that has meant more rather than less atrocities being committed. The mechanisms of international criminal justice are now equipped to deal with at least some of these crimes – but once again there is a mindset and political will that stand in the way of greater effectiveness in this regard, at least in the short term. Having said that, the first trials at the International Criminal Court will involve crimes committed in what is largely an internal conflict – the tragic civil war in the Democratic Republic of the Congo – although even this is not entirely accurate given that this conflict is extremely complex and has also involved many neighbouring countries.

Criteria 3 - A Large Number of Prosecutions by the International Courts?

It would perhaps be reasonable to determine the success of the system of international criminal justice by the number of prosecutions that are initiated by the various International Courts and Tribunals. After all, isn’t that what these Courts have been set up to do? The International Criminal Court has, for example, been established with the ‘power to exercise jurisdiction over persons for the most serious crimes of international concern’. What is the point of doing this if it does not proceed to prosecute anyone (and everyone?) who is suspected of having committed such crimes?

As logical as this argument may sound, it is, once again, somewhat unrealistic. It must be recalled that these Courts are, in general terms, intended to prosecute those ‘most responsible’ for the commission of such crimes. Of course, this has not always been the case, but virtually any trial before an International Court will be complex, detailed, lengthy and require large amounts of resources in terms of expertise, time and, ultimately, money. As a consequence, international criminal justice can only be, and always will be selective. It simply is not logistically possible to undertake a large number of international trials at the same time.

Moreover, although the International Courts themselves maintain their independence, the political environment in which each one operates, and which fashioned its design, establishment, mandate and jurisdiction, may have a limiting effect on their overall effectiveness. The experience of some of the Courts – for example, the Special Panels for Serious Crimes in Timor-Leste - makes it clear that, without sufficient national and international political resolve backed with adequate resources, these mechanisms of justice, even with the best will in the world as far as the Judges and Prosecution are concerned, may not be effective in meeting both (or either of) the expectations of victims and the general aims leading to their establishment, which might include retribution, deterrence, reconciliation, compensation and rehabilitation.

Having said this, there are sufficient real-life examples to suggest that the International Courts have themselves generated a momentum which also shapes and directs decision making at the governmental level. It is becoming more of a two-way street, although there is still some way to go in this regard. As an example, the arrest of Charles Taylor following his indictment by the Special Court of Sierra Leone was, ultimately, a political issue. Yet, the prior establishment and operation of that Court and the concomitant pressure for accountability that its existence brought to bear, were important factors in the eventual decision of Nigeria to end his ‘safe haven’ status within its borders, leading to his arrest and trial.

However, the financial costs of these International Courts will always remain as a significant impediment to their being ‘many’ trials – if indeed that is what we should be striving for. It is true, for example, that the Yugoslav and Rwanda ad hoc Tribunals have achieved much in the context of developing the rules of international criminal law, accountability for perpetrators of horrendous crimes and providing elements of closure for those affected by such crimes. Yet, these two Tribunals have in total received an estimated US$4.5 billion through the United Nations to finance their work. There is no doubt that this high cost was an important factor leading to the development of their respective ‘Completion Strategies’, which involves the completion of investigations by the end of 2004, of all trial activities at first instance by the end of 2008 and of all of the work of the Tribunals in 2010.

Indeed, the issue of finance is also a vital element impacting upon the operation of the International Criminal Court, which is required to submit a budget proposal each year to the Assembly of States Parties (ASP) for consideration and approval. Within the overall context in which the Court is to operate, it has adopted a ‘Strategic Plan’, which was presented to the Committee on Budget and Finance of the ASP. As a part of this process, the Court has developed a ‘Court Capacity Model’, essentially to align current and projected resources to future needs and capabilities.

It is therefore important to understand the significance of funding and resources to the future operation of the International Criminal Court and perhaps to ask a simple question – ‘how much international criminal justice are we prepared to pay for?’ Seen in this context, it is impractical to expect that the system of international criminal justice will directly lead to the prosecution of all, or indeed most, of those people who are responsible for the commission of these crimes. This is not to say that there will be no trials – indeed, the ad hoc Tribunals have successfully prosecuted over 100 persons. Yet, the total number of prosecutions should not be regarded as a correct measure of the effectiveness of the system, let alone the number of convictions. Recall the comment at the beginning of this note that Milosevic might possibly not have been found guilty of genocide – does that mean that his trial (if completed) would have been less of a success?

Criteria 4 - Greater Accountability within the State Criminal System?

The International Criminal Court has been established as ‘complementary to national criminal jurisdictions’. As a result, the Court has often been labelled as a ‘Court of last resort’. While this is, obviously, a limiting factor on the ability of the Court to prosecute specific crimes, it has the effect that all States have the primary responsibility - or perhaps viewed in another way, the primary opportunity - to exercise their national criminal jurisdiction over those responsible for international crimes. Although there are, undoubtedly, some uncertainties as to precisely how aspects of the complementarity principle may apply in practice - matters that in the end may require clarification by the International Criminal Court itself - the principle does represent a safeguard to a State that would otherwise be concerned that one of its nationals would face trial before the Court.

Of course, some might argue that there is a price to be paid for this: the ‘upgrading’ of domestic laws in order to ensure that the relevant State does not fall within the ‘unable’ criteria set out in Article 17 of the Rome Statute. Indeed, one of the positive ‘by-products’ arising from accepting the Court's jurisdiction is the incentive it provides for States Parties to implement appropriate domestic laws designed to ensure that their domestic courts would have the jurisdiction to deal with any alleged act that constituted an international crime within the mandate of the Court.

For example, following ratification of the Rome Statute, the Australian Parliament enacted both the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth) which, among other things, provided for cooperation between the Court and the Australian Government and, more importantly, introduced the crimes defined in the Rome Statute into Australian domestic law. Australia has since been approached by the Court with a request for cooperation in relation to the situation in the Democratic Republic of the Congo.

For Australia, the enactment of this implementing legislation was particularly significant and symbolic, given that it had failed to effectively implement the 1948 Genocide Convention into domestic law, with the result that, as was demonstrated by a number of important cases brought by Indigenous Groups in the 1990s, it was very difficult to assert that a crime of genocide had previously existed under Australian law. As such, ratification of the Rome Statute has placed Australia in a position where it has to accept - albeit perhaps for pragmatic reasons - the inevitability that crimes such as genocide and crimes against humanity are, and should be, recognised as fundamental elements of any domestic criminal code.

Even though a significant number of States Parties to the Rome Statute have yet to do so, as this international system of criminal justice evolves, other national governments can no longer ignore the moral imperative to recognise these crimes within their own legal systems. In the period between 1945 and 1990, approximately 180 million people were killed in circumstances where genocide was sometimes clearly taking place. With very few exceptions, there was no accountability for such horrendous atrocities. The Cold War – and the consequent impotence of the United Nations Security Council to properly address these crimes – meant that no International Courts were established to follow the lead set by the Nuremberg War Trials. The Realpolitik of that period also meant that individual States were not prepared politically to themselves set up systems of accountability.

This has now changed, due largely to the evolution of international criminal justice. Ironically, it is this development of national laws that may represent the most important criteria by which the effectiveness of the system of international criminal justice should be measured. In this regard, the Prosecutor of the International Criminal Court stated shortly after the establishment of the Court that he would regard the Court as being successful if there were no (need for) international trials, due to the fact that the perpetrators were being tried by the States themselves.

The incorporation of these international crimes into domestic law will mean that greater pressure will exist for judicial accountability for perpetrators of gross violations of human rights to be initiated at the local level. This may, in many circumstances, bring with it benefits that the system of international criminal justice may not be able to provide – not only from a cost viewpoint, but perhaps also from a relevancy and ‘access to justice’ perspective, since the trials will therefore not take place many thousands of miles away from where victims and their families live.

Naturally, it is crucial that the domestic processes that are established in this regard are themselves public, transparent and fair. As if one needed reminding of the importance of this principle, it is appropriate to consider for a moment the trials of Saddam Hussein. The Supreme Iraqi Criminal Tribunal – a local court – that was established to hear the trials, lacked several fundamental protections to which accused are entitled under international human rights principles. In addition, the trials before this Court were marked by governmental interference (including the replacement of some judges seen as being too lenient towards Saddam), the murder of several defence lawyers, the involvement of inexperienced judges, chaotic scenes within the court room, allegations of bribery of and perjury by Prosecution witnesses, allegations of forgery of Prosecution evidence and allegations of torture made by the accused.

As a result of the flawed processes involved, an important opportunity was missed. The Saddam trial simply failed to promote reconciliation in Iraq. Instead, what it demonstrated was that, unlike the process that was actually implemented, if international or national criminal justice is to make an important contribution to peace, then it must respect the rule of law and ensure the rights of the accused, so as to limit any suggestions that it simply represents ‘victors justice’.

However, if this is done properly – and there will no doubt be some significant problems to overcome in many States before that point is reached – then the development of international criminal justice will have played a crucial role in moving us all towards the perhaps unattainable but still crucial goal of ‘putting an end to impunity’ for the perpetrators of such crimes.

Recent Achievements and Future Imperatives

All of these developments reflect a remarkable turnaround in terms of accountability. Whereas Heads of State would have once regarded themselves as above the law, this is no longer the case. In addition to Milosevic, Taylor and Saddam, the past few years have seen other former leaders such as Chile’s Augusto Pinochet, Rwanda’s Jean Kambanda, Peru’s Alberto Fujimori and Chad’s Hissène Habré all face legal processes relating to their (alleged) crimes. No doubt other leaders are currently within the sights of these mechanisms of international and national justice. While each of these processes have had their own varying degrees of success, the point is that it would have been unthinkable even ten years ago that leaders or former leaders such as these would ever have faced trial in such a public forum.

The Economist Magazine last year quoted Libya’s Muammar Qaddafi as saying ‘This means that every head of state could meet a similar fate. It sets a serious precedent’. This is a direct consequence of the evolution of international criminal justice and is something to be applauded. Indeed, criminologists now talk about a ‘Pinochet syndrome’ – where the senior political and military leaders of today and tomorrow can no longer ignore the rule of law and the reach of the various systems of national and international criminal justice.

Yet, there is still much to be done. We are currently witnessing the first genocide of the twenty-first century in the Darfur region of Sudan. It has been estimated by various human rights groups that the actions of the Government-backed Janjaweed have already resulted in the deaths of more than 300,000 people and the internal displacement of a further two million. The various crimes so far detailed by the Prosecutor of the International Criminal Court give us an indication of the scale and horror of the actions taking place almost on a daily basis. The Court has issued arrest warrants in relation to a current Sudanese Minister – ironically the Minister of State for Humanitarian Affairs – and a leader of the Janjaweed militia.

It is in this regard also that States have and will continue to play a crucial role. The mechanisms of international criminal justice have no ‘police force’. We are, to a large degree, entirely reliant on States to affect the arrest of indicted individuals so that they can be brought before an appropriate Court to face trial. Following the issuance of the two arrest warrants by the International Criminal Court, Sudan has, not unexpectedly, continued to vehemently oppose any calls for their arrest. Whilst in the immediate aftermath of the issuance of the arrest warrants, the actions of the Janjaweed were scaled back, the atrocities have since resumed. The longer it is before these men are brought to justice, the worse the position will become. The cooperation of all States, including those like the United States that are not parties to the Rome Statute, is necessary if these accused and others like Radovan Karadzic and Ratko Mladic, still sought by the ICTY after all this time, are to be brought to justice.

In the end, therefore, the effectiveness of international criminal justice will largely depend on the efforts of States to demonstrate the requisite political will – backed by tangible resources and action – necessary to allow for proper accountability for those who commit gross violations of human rights. Courts like the International Criminal Court have a vital role to play in this process, but their creation is not the panacea that will stop these atrocities from taking place. International criminal justice is just one (albeit very important) cog in an ever more complex matrix of mechanisms that must be implemented if, in the future, the world is to see justice, in the broader sense, for all.

[1] Associate Professor of International Law, University of Western Sydney, Australia; Visiting Professor of International Law, University of Copenhagen, Denmark; Visiting Professional (Chambers), The International Criminal Court, The Hague, The Netherlands.

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