in one sense, this represented an effort to divert attention from the fact that the Security Council had done essentially nothing to stop the fighting and ethnic cleansing (toothless peacekeepers and vast quantities of humanitarian aid notwithstanding), it served to resurrect the principles of Nuremberg. It was also important because it was the Security Council, the main body with a mandate to deal with the biggest issues of international security, that created the court. It firmly put international criminal justice on the international agenda. Given that the court was set up to prosecute individuals who were involved in an ongoing conflict, the ICTY created problems for those attempting to bring the fighting to an end. Indeed, it created incentives to continue fighting rather than come to an accommodation to end the war. If the war ended, those with outstanding arrest warrants might be arrested. The fact that it took sixteen years to arrest the last suspect on the ICTY docket, Ratko Mladic, and thirteen years to arrest his co-defendant Radovan Karadzic might hearten those who are facing such situations. Yet, they are, in the end, facing justice, as did former Serbian president Slobodan Milosevic, who was indicted in 1999 during the war in Kosovo and sent to The Hague in 2001—although he eventually died in jail before the trial was over.
The next phase in the reinvigoration of the international criminal justice regime came in 1994, when the UN Security Council created the International Criminal Tribunal for Rwanda (ICTR) in the wake of a genocide that killed 800,000 people. As will be seen in the next chapter, the UN utterly failed to prevent or stop the genocide. Nor did it adequately address the humanitarian crisis following the genocide when more than two million refugees fled to neighboring countries, setting the stage for an even bigger conflict in Zaire. However, the ICTR did allow some small measure of attention to be diverted from the failure of the international community to act. International courts thus became a substitute, yet again, for robust action to stop mass atrocities. Yet, the very fact that there was a felt need to cover up the failure to respond illustrated the effect of the “never again” norm, which would culminate in the responsibility to protect. Why try to cover up inaction unless there was an expectation that the UN, the Security Council, states—somebody—should respond?
Universal Jurisdiction
In the 1990s, another innovation in international criminal justice came to the fore with the expansion of the practice of universal jurisdiction. According to the Princeton Principles on Universal Jurisdiction, “Universal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.”47
Thus, according to this principle, one state may arrest or try somebody from another state who committed a crime—in this case, genocide, crimes against humanity, and war crimes—even though the crimes were not committed on the territory of the first state, the crimes were not committed by a national of the first state, and there is not necessarily any direct connection to the first state. The argument is that the crimes have transcended nationality and become international crimes, and thus all states have an interest in seeing that individuals who commit these crimes are punished and thus can claim jurisdiction over such individuals “as a trustee or agent of the international community.”48
Although universal jurisdiction is still a highly contested concept, it gained currency in the 1990s as Western states started to initiate proceedings against numerous individuals. Perhaps the most famous was the case initiated by Spain against former Chilean president Augusto Pinochet.49 However, a number of other countries have also begun proceedings against, or tried individuals for, the aforementioned crimes, including eight EU countries. Some of these have been against non-Africans—including U.S., Israeli, and Chinese leaders (prosecutions of which have foundered on the shoals of global power politics)—but many have been against Africans, involving cases from at least twelve African countries. Of the twenty-seven universal jurisdiction cases being pursued by EU states in 2009, ten were against Africans.50 This focus on Africa has contributed to tensions between the African Union and supporters of international criminal justice mechanisms51—as will be seen in particular in the chapter on Darfur. There has been movement away from universal jurisdiction in some Western European countries, particularly as a backlash against attempts to indict Israeli and U.S. officials,52 but it remains a significant element of the international criminal justice regime.
The International Criminal Court: Institutionalizing the Responsibility to Prosecute
In 1998 the pinnacle of the modern international criminal justice regime was created with the passing of the Rome Statute of the International Criminal Court. More than 160 states were gathered in Rome, of which 120 voted in favor, 21 abstained, and 7 voted against, including only one African country—Libya.53 It came into existence in 2002 when the required number of states had ratified the statute, which coincided with the creation of the Special Court for Sierra Leone—a domestic-international hybrid court created by the UN—and the development of another hybrid court in Cambodia. The creation of the ICC was a culmination of post-Cold War democratization, expansion of global governance and global institutions, and widespread recognition, and implementation, of human rights standards. It was a partial implementation of the “never again” norm, which, until Bosnia and Rwanda, had lain dormant since the Holocaust.54
The Rome Statute enshrines in international law individual criminal responsibility for genocide, crimes against humanity, war crimes, and aggression.55 Furthermore, it created responsibilities for states parties. They accept the jurisdiction of the Court (Article 12), are required to arrest and surrender to the Court individuals for whom an arrest warrant has been issued (Article 89), and must provide other cooperation the Court may request (Article 93). As we shall see, it is precisely on the issue of cooperation, including arrest and surrender, on which there has been much conflict in Africa. And while the ICC is an independent entity, accountable to the states parties, it also has a relationship with the UN Security Council. There are three ways a case may come before the Court. According to Article 13, a state party may refer a case over which the Court would have jurisdiction to the Prosecutor, the Prosecutor may initiate an investigation, or the Security Council may refer a situation to the Court acting under Chapter VII of the UN Charter. Under Article 16, the Security Council may also defer an investigation or prosecution for up to a renewable twelve-month period.
The ICC has had a somewhat rocky early history. None of the major global powers—the United States, Russia, or China—are members. The United States was one of its early supporters, but for a variety of reasons voted against the Rome Statute in 1998, joining China, Iraq, Israel, Libya, Qatar, and Yemen. President Clinton did sign the Statute on 31 December 2000—the last day to sign without having to directly accede to the statute. A year and a half later President Bush “de-signed” the statute, declaring that the United States would not be bound by it. For the next few years the United States actively tried to impede the functioning of the ICC. Congress passed the American Service-Members’ Protection Act in 2002, which prevented the United States from providing military assistance to any country that had ratified the Rome Statute, and forced aid recipients to sign so-called Article 98 agreements in which they declared that they would not send any U.S. citizen to the ICC in The Hague. The U.S. softened its stance in 2005 when it allowed the UN Security Council to refer the situation in Darfur to the ICC, and has gradually further engaged with the court in the ensuing years, particularly after the Obama administration came to power. U.S. wariness and opposition to the ICC has both domestic ideational and international realpolitik roots,56 which have not been resolved, although the U.S. has become more open to the ICC during the Obama administration.57 Core issues have to do with the fact of the independent prosecutor and that the ICC is only loosely tied to the UN Security Council. The U.S. expresses concern about “political” prosecutions of U.S. citizens. Further, while the Security Council is able to refer situations to the ICC for investigation, and can temporarily suspend proceedings in a particular case, it is not beholden to the Security Council, where the U.S. exerts much power and has a veto. The ICC is thus more independent than the U.S. (and China and Russia) would like.
Although an expression of global support for human rights—which are frequently seen as in opposition to, or free from, politics—the ICC