Bending Toward International Justice

NEW YORK – This week’s hurried departure by Sudanese President Omar al-Bashir from South Africa, where African Union heads of state were convening, has spared him arrest for now.

But the Pretoria High Court order that he defied, which enforced a warrant from the International Criminal Court charging him with genocide and crimes against humanity, marks a step forward in the fight against impunity.

This July marks the 20th anniversary of the massacre of more than 8,000 Bosnian Muslim civilians in and around the town of Srebrenica. That atrocity helped galvanize political backing for the International Criminal Tribunal for the former Yugoslavia (ICTY), a precursor to the International Criminal Court (ICC) in The Hague.

Since its formation in 1993, the ICTY, and national courts in Bosnia and Serbia, have convicted more than two dozen people for their involvement in the massacre. And trials of Ratko Mladić, the former Bosnian Serb military leader, and Radovan Karadžić, the former president of the Bosnian Serb Republic, on charges of war crimes, genocide, and crimes against humanity are still making their way through the judicial process.

Other internationally backed criminal tribunals have delivered convictions against former Liberian President Charles Taylor, the two surviving top leaders of the Khmer Rouge, Khieu Samphan and Nuon Chea, and some of the Rwandans responsible for the 1993 genocide.

The ICC has faced challenges in recent months, including the collapse of its case against Kenyan President Uhuru Kenyatta and a stalemate at the United Nations Security Council that has prevented an investigation into mass criminality in Syria. Nonetheless, the cause of international justice is slowly marching forward.

This April, the parliament of the Central African Republic approved legislation creating a hybrid Special Criminal Court to investigate and prosecute those responsible for violence in the country since 2003. The same month, judges in Senegal were sworn in to serve on the hybrid Extraordinary African Chambers, which will try former Chadian dictator Hissène Habré for acts of brutality during his rule between 1982 and 1990.

Another special court is being considered to investigate allegations of organ harvesting by ethnic Albanian guerrillas in Kosovo. In early May, US Secretary of State John Kerry pledged $5 million toward “a credible, impartial, and effective justice mechanism, such as a hybrid court,” to hold accountable perpetrators of violence in South Sudan’s civil war, in which tens of thousands have died, and hundreds of thousands displaced, since 2013.

This mini-boom in hybrid courts – which rely on local and international personnel, offer justice in or near the affected country, and reduce costs – is not the only positive development in recent years. National courts are prosecuting heinous acts of torture, murder, and rape with increasing frequency and determination.

In Guatemala, the retrial of former head of state Efrain Rios Montt on charges of genocide has stalled. But prosecutors recently convicted the former head of a special investigations unit of the National Police for his leadership of the 1980 siege of the Spanish embassy, which killed dozens of students, diplomats, and indigenous activists. In the eastern Democratic Republic of the Congo, mobile courts designed to reach remote areas have convicted senior military officers for the mass rape carried out by their troops. In the US, a former defense minister of El Salvador was deported this spring for participating in torture and killings by troops under his command in the 1980s.

To be sure, much more needs to be done. Entrenched patterns of impunity will take decades to overcome. There is little sign, for example, that the US government is planning to prosecute those responsible for the CIA’s rendition and torture of suspected terrorists in the aftermath of the September 11, 2001, attacks in New York and Washington, DC.

But the advances taking place today hardly seemed possible a quarter-century ago. One of the most intractable barriers to international justice – the double standard shielding criminals who are citizens of powerful states – is now squarely under the microscope of public scrutiny. Significantly, France has proposed that all five permanent members of the Security Council renounce use of the veto in cases of alleged mass atrocities.

These strides toward a more just world underscore that perseverance sometimes pays off. Several of the recent cases were concluded after more than 20 years of legal maneuvering. They progressed because the victims and their allies pushed ceaselessly for individual judges, prosecutors, and investigators to act – and demanded that political leaders enable them to do so. The same persistence and determination will be sorely needed in the years ahead.

James A. Goldston is Executive Director of the Open Society Justice Initiative.
Copyright: Project Syndicate, 2015.
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