War criminals can no longer count on a private jet waiting to whisk them off to a golden life in exile
By: Andrea Russell
Andrea Russell is executive director of the Office of the Dean at the University of Toronto Faculty of Law and teaches International Criminal Law at the Faculty.
This commentary was first published in the Ottawa Citizen on May 28, 2011. It was also published in the Montreal Gazette and the Regina Leader-Post.
Thursday's news that Serb General Ratko Mladic had finally been apprehended for genocide marked the culmination of a busy and significant period in the development of international criminal law.
The new Egyptian regime confirmed this week, for instance, that former president Hosni Mubarak would be tried in an Egyptian court for the pre-meditated murder of protesters during this winter's populous uprising. Similarly, the prosecutor of the International Criminal Court announced last week that he had requested permission to open an investigation into the postelection violence in Côte d'Ivoire, where former president Laurent Gbagbo refused for months to cede power to his democratically elected successor. And strikingly, when the UN Security Council drew up its initial list of measures to address the violence that Colonel Moammar Gadhafi was directing against the Libyan people, a referral of the situation to the International Criminal Court figured prominently.
The permanent five members of the Security Council, including countries like the United States that had previously been hesitant to embrace fully the international criminal justice project, unanimously supported the referral. There could have been no clearer sign that international criminal law had truly ascended to such importance in the conduct of international affairs.
A mere 15 years ago, international criminal law was an obscure, virtually dormant branch of law, consisting nearly exclusively of the case law from the victors' justice tribunals at Nuremberg and Tokyo. The crimes committed in the former Yugoslavia, and during the sadly contemporaneous genocide in Rwanda, however, prompted the international community to resurrect the international justice project.
The UN Security Council created the "ad hoc" War Crimes Tribunals for the Former Yugoslavia and Rwanda to address the tandem great humanitarian disasters of the 1990s. The project was nonetheless slow to develop, as there was much to be done: Tribunals were created and staffed from the ground up, criminal investigations were conducted and indictments drawn up, and, of course, key accused were tracked and extradited to the tribunals for trial.
None of this was easy, but the greater goal of justice for the victims and -just possibly-potential deterrence of future crimes, guided those who led the second wave of international criminal justice.
The 1998 creation of the permanent International Criminal Court further bolstered international criminal law immeasurably. The Hague-based Court was formed under the belief that the creation of successive ad hoc tribunals to address individual humanitarian crises was simply unsustainable. The creation of mixed international and domestic war crimes tribunals in Sierra Leone and Cambodia -the latter, a shocking three decades after the genocide that prompted its creation -further led to a sense of "tribunal fatigue" among many in foreign policy circles.
What was needed was one court that could respond to crises that would not be addressed domestically, a court that would be ready to react with indictments as soon as guns were first directed against civilians.
Over the past months, the International Criminal Court has proven its ability to do just that. Given that the permanent court is ever at the ready, what the international community was unable to do in previous conflicts -refer a developing humanitarian crisis immediately to an independent international war crimes court -has become a truly viable option.
Within weeks of the referral by the Security Council of the situation in Libya, the chief prosecutor issued indictments against Gadhafi and one of his sons.
Even those most involved in international justice will concede that the court is far from perfect. The fact that the court must rely upon individual states to arrest the war criminals that it has indicted is one of the court's most significant challenges. The ICC, like the ad hoc tribunals, has no police force, and the creation of such a force would be unrealistic. As such, the court will continue to require co-operation from states in arresting those it has indicted. Over 15 years passed between the Yugoslavia Tribunal's first indictment of General Mladic and Thursday's announcement by Serbia that the former general had been arrested on its territory. As the former Swiss chief prosecutor of the Yugoslavia Tribunal, Carla Del Ponte, so vividly illustrates in her fascinating memoir Madame Prosecutor, those involved in the international justice project must draw upon bottomless reserves of determination and patience.
Now that Mladic has been apprehended, the strongest challenge to their patience will be Sudanese President Omar al-Bashir. Indicted by the ICC last year on charges of genocide in Darfur, he continues nonetheless to travel relatively freely through various countries in Africa.
The days of impunity for world leaders who once presided over war crimes campaigns may not be completely over, but they are certainly waning. While many will argue that certain leaders will never, for political reasons, face justice for international crimes, the most egregious of criminals are no longer assured the almost dignified exits of rogue leaders past, many of whom departed office for lives of sun-drenched amnesty in exile. Mubarak, for instance, fled Cairo for seaside Sharm el-Sheik, but promptly faced a knock at the door from Egyptian investigators. So shocked was he by this turn of events that his initial interrogation was completed in a hospital room.
Radovan Karadzic, another Serb architect of the war crimes campaign in the former Yugoslavia, lived relatively freely near his former haunts for years before his arrest, albeit under total disguise as a holistic health guru.
Disgraced world leaders and war criminals can no longer count on a private jet waiting on the tarmac to whisk them off to a golden life in exile. Their lives after renouncing power are now just as likely to involve a jail cell in The Hague.
