Arab Spring Highlights International Court Flaws (NY) TIMES) By LYDIA POLGREEN JOHANNESBURG 07/08/12)
NEW YORK TIMES
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JOHANNESBURG — It was exactly the kind of case the International
Criminal Court was created to investigate: Yemen’s autocratic leader
was clinging to power, turning his security forces’ guns on unarmed
protesters. Hundreds were left dead, and many more were maimed.
But when Yemen’s Nobel laureate, Tawakkol Karman, traveled to The
Hague to ask prosecutors to investigate, she was told the court would
first need the approval of the United Nations Security Council. That
never happened, and today the former president, Ali Abdullah Saleh,
is living comfortably in Yemen’s capital, still wielding influence.
Now, as the world confronts increasing evidence of atrocities on a
much vaster scale in Syria as President Bashar al-Assad’s government
battles a growing rebellion, there are signs that Mr. Assad is likely
to evade prosecution, much as Mr. Saleh has.
The men have not been prosecuted because they have powerful allies,
underlining what critics say are crucial flaws in the court’s setup.
That now threatens to undermine the still-fragile international
consensus that formed the basis for the court’s creation in 2002:
that leaders should be held accountable for crimes against their own
Already, the failure to act against some leaders challenged by the
Arab Spring is emboldening critics who see the court as just another
manifestation of a deeply undemocratic international order. So-called
justice, they say, is reserved for outcast leaders, including an
assortment of African officials from weak states with few powerful
“We have the feeling that international justice is not ruled by law,”
said Rami Nakhla, an exiled Syrian activist and member of the Syrian
National Council, an opposition group. “It is ruled by politics, it
is ruled by circumstances. It depends on the situation, it depends
how valuable this person is. That is not real justice.”
Since it was created, the International Criminal Court has signed up
120 member states, including many nations that perpetrated or
suffered some of the 20th century’s gravest atrocities: Germany,
Poland, Japan, Cambodia, the Democratic Republic of Congo, Sierra
Leone, Argentina and Colombia. The long-held dream of a court with
universal jurisdiction that could prosecute crimes against humanity
committed anywhere is today closer than ever to being a reality.
Three former heads of state are in custody of international courts,
and one, Charles Taylor, has been convicted of war crimes. The
International Criminal Court has opened multiple investigations in
some of the last decade’s worst conflagrations, and convicted one
defendant, a Congolese warlord who turned young boys into killers.
The trial of a former Bosnian Serb general, Ratko Mladic, is
scheduled to resume Monday at the tribunal created to try accused war
criminals from the former Yugoslavia.
The International Criminal Court was meant to replace the ad hoc
courts created for a single conflict like Sierra Leone and Yugoslavia
with a tribunal with global reach to investigate continuing
atrocities. But the court does not have truly universal jurisdiction.
It can investigate crimes only in nations that have signed the Rome
Statute, which created the court, unless the Security Council refers
In the Middle East, where few nations have signed and many have
strong allies on the Security Council, authoritarian leaders can
proceed with impunity. That threatens to undermine confidence in the
“So many crimes have been committed here,” said Nabeel Rajab, a
rights activist in Bahrain, where the royal family, with help from
Saudi Arabia and the acquiescence of the United States, has used
force to put down a pro-democracy uprising. “But because of the close
relationship between Western powers and the government of Bahrain,
how can we hope for justice?”
The International Criminal Court began working a decade ago with very
low expectations and little support from the major world powers.
Three of the five veto-holding members of the Security Council — the
United States, Russia and China — refused to subject themselves to
its jurisdiction. Despite this, it has turned into a touchstone for
justice-seekers so powerful that The Hague has become their desired
destination for autocrats everywhere. The Security Council allowed
the court to investigate Sudan’s president, Omar Hassan al-Bashir,
who ended up being indicted on charges of war crimes in Darfur,
though the court has been unable to apprehend him.
And in February 2011, the Security Council voted unanimously to ask
the International Criminal Court to investigate the Libyan government
led by Colonel Muammar el-Qaddafi. The court handed down indictments
against Colonel Qaddafi and several top officials, though he was
killed in Libya before he could face prosecution.
But the court has not taken action in any other Arab uprising, in no
small part because of the ties between the countries involved and
veto-holding members of the Security Council. Bahrain and Yemen are
allies of the United States, which is not a signatory to the
International Criminal Court. Russia and China, neither of which is a
signatory, are close to Syria’s government, and are likely to block
any attempt to refer a case to the court.
“Is Syria the kind of situation that should get the court’s
attention? Absolutely,” said Kevin Jon Heller, a leading scholar of
international justice and an international defense lawyer who teaches
at the University of Melbourne in Australia. “But there is an
inherent selectivity. As long as any country has a patron on the P5,”
he said, referring to the veto-holding members of the Security
Council, “it will never get referred.”
For years African countries have complained that the International
Criminal Court has focused exclusively on African conflicts. In some
ways this was unintentional: the court can investigate only
atrocities committed after its creation in 2002, and in that period
many of the bloodiest conflicts in the court’s jurisdiction have
taken place in Africa.
But the African focus shows how tricky the jurisdictional questions
are. Much of Africa has ratified the Rome Statute, with notable
exceptions like Sudan, Ethiopia and Zimbabwe. In some instances,
governments in Africa have referred cases involving rebel groups on
their own territory, as in Uganda and the Central African Republic.
In others, like the postelection violence in Kenya in 2008, the
office of the International Criminal Court prosecutor has used its
power to open investigations.
But other situations have escaped the court’s reach. At the bloody
end of the civil war in Sri Lanka in 2009, 200,000 civilians were
trapped on a beach between government forces and the Tamil Tigers.
Tens of thousands are believed to have been killed, but the
International Criminal Court has never investigated the case. Sri
Lanka is a close ally of China. Charges of crimes in Gaza will never
be investigated, international justice experts say, because of the
ties between the United States and Israel.
The United States never agreed to be subject to the International
Criminal Court because of constitutional issues and worries that its
citizens, especially soldiers and spies, could be brought before the
tribunal. This is no idle fear, given the human rights scandals that
have exploded in Iraq and Afghanistan involving United States
personnel. Other countries have rejected it as an unacceptable
infringement on their sovereignty.
International justice is also slow and expensive, leading some to
question whether it is really worth it. The International Criminal
Tribunal for the former Yugoslavia was created in 1993, and it is not
expected to wrap up its work until 2014. The Special Court for Sierra
Leone, which convicted Mr. Taylor, was created in 2002 and has cost
hundreds of millions of dollars, leading many people in that
impoverished country to wonder whether the money could have been
better spent on development.
Debates have raged for years about whether the court, by closing off
a graceful exit, makes dictators more likely to fight to the death.
Some question whether it is an effective deterrent of war crimes. The
court has run into another problem in Libya: the new government seems
intent on prosecuting surviving members of the old leadership itself
despite deep concerns about the ability to hold fair trials.
Supporters of the court say it has achieved far more than anyone
expected when it was created. “The assumption was the court will take
years to come into effect,” said Darryl Robinson, a law professor at
Queen’s University in Canada who worked as an adviser to the
International Criminal Court’s prosecutor. “And once it is in force
it is going to be this court with jurisdiction over Canada and
Norway, with nothing to investigate.”
Instead, much of the world has signed up, and protesters in Yemen,
Bahrain, Libya and Syria have demanded that their leaders be sent to
The Hague for trial, testimony to the court’s wide resonance. The
deeper question is whether the failure to prosecute the autocrats of
the Arab Spring will erode faith in the movement toward a truly
universal system of international justice.
“For justice to be legitimate, it is essential that it be applied
equally to all,” said Richard Dicker of Human Rights Watch. “Justice
has advanced, and in doing so, the flaws that mark it in today’s
world become more apparent. The double standard must change for the
whole undertaking to retain its legitimacy.” (Copyright 2012 The New
York Times Company 07/08/12)
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