Briefing: Bringing war criminals to justice

How are war criminals prosecuted?

Very slowly. It’s virtually impossible to arrest political leaders while they are in power, and it can take years to capture them afterward. Radovan Karadzic, the leader of Bosnian Serbs, was accused in 1995 of committing genocide in the former Yugoslavia, including directing the execution of 8,000 Muslims in Srebrenica. After losing power at home, Karadzic went underground—possibly with the help of Serbian security forces—grew a bushy beard, and took on a new identity as a New Age healer. But Karadzic’s fugitive status eventually became an obstacle to Serbia’s drive to join the European Union, and in July, Serbian police pulled him off a bus, arrested him, and handed him over to prosecutors in The Hague, Netherlands, for trial. Authorities hope a similar, but speedier, process plays out in Sudan, whose president, Omar al-Bashir, was indicted in July for war crimes stemming from Sudan’s campaign of violence in Darfur.

Who administers international courts?

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The Hague is home to several international courts, with varying mandates. Karadzic will be tried by the International Criminal Tribunal for the former Yugoslavia, a temporary court created by the U.N. in 1993. Al-Bashir was indicted by the International Criminal Court, which was created by an international treaty in 2002 and is the first permanent international court with jurisdiction to prosecute individuals. The International Criminal Court has now filed charges in four cases, all involving war-scarred African nations: Uganda, the Democratic Republic of Congo, the Central African Republic, and Sudan. Several African warlords have been arrested and are awaiting trial. Sudan’s al-Bashir, however, remains in power.

Why indict al-Bashir if he can’t be arrested?

That’s a matter of intense debate. Some observers fear that now that al-Bashir is officially an outlaw, he has less incentive to adhere to international norms and could become even more ruthless. Since his indictment, violence in Darfur shows no sign of abating. Others argue that even the most entrenched despots become vulnerable sooner or later—and that the added pressure of an indictment can hasten their demise. “Maybe he’s laughing and saying, ‘They’ll never catch me,’” says former U.S. Ambassador to the U.N. Richard Holbrooke, “but deep down inside he must be wondering.”

What kind of track record do these courts have?

Mixed—but with some genuine successes. The International Criminal Tribunal for the former Yugoslavia has indicted 161 people, resulting in 56 convictions. Convictions, however, are not the only gauge of success. Former Yugoslav President Slobodan Milosevic was the first ex-head of state ever to stand trial in an international war-crimes tribunal. He represented himself, in a performance that was widely ridiculed. Although Milosevic died of a heart attack in 2006, before his trial ended, prosecutors laid out evidence that he was a liar and a butcher, and undermined his claim to be a Serbian nationalist hero. Even without a conviction, said Mary Robinson, former U.N. high commissioner for human rights, “the process itself is a success.”

Does politics play a role at The Hague?

Absolutely. Prosecutors often rely on intelligence supplied by the accused’s domestic and foreign enemies, and arrests can require complicated political choreography involving peacekeeping forces or militias. The Hague’s pursuit of Milosevic, for example, was at times complicated by U.S. efforts to produce a Yugoslav peace accord, with some in Washington concerned that an indictment would drive Milosevic from negotiations. And that’s hardly the only time the U.S. and the international courts have been at odds. Most dramatically, the U.S. has declined to join the nearly 150 other nations that have recognized the International Criminal Court’s jurisdiction—which some critics say has served to undermine the court’s legitimacy.

Why doesn’t the U.S. support the court?

Basically, the Bush administration doesn’t trust it. The U.S. historically has supported international courts, and in fact was a prime organizer of the courts in Nuremburg, Germany, and in Tokyo after World War II. But Americans were prosecutors in those cases, not potential defendants. The administration worries that the tables could be turned, especially following international outrage over the killing of civilians in Iraq and Afghanistan, and the U.S.’s treatment of detainees at Abu Ghraib prison and at Guantánamo Bay, Cuba. The concern stems from the fact that the International Criminal Court requires signatories to give up a degree of sovereignty: The treaty holds that if an accused war criminal is not prosecuted domestically, the international court can claim jurisdiction. The White House argues that this could make U.S. military personnel—and even government leaders—vulnerable to the whims of foreign prosecutors. Luis Moreno-Ocampo, chief prosecutor at the court, has already declined hundreds of requests to investigate U.S. actions in Iraq.

Could Americans be prosecuted?

It’s not out of the question. Retired U.S. Major Gen. Antonio Taguba, who investigated abuses at Abu Ghraib, said recently that waterboarding and other harsh interrogation techniques are violations of the Geneva Conventions and therefore “war crimes” subject to prosecution. The Bush administration vehemently disputes that characterization, of course. And even many critics of U.S. interrogation practices say that any attempt to prosecute U.S. officials would create such a political firestorm, it could end up setting back the very notion of international justice. “The important thing,” said liberal Supreme Court Justice Ruth Bader Ginsburg, speaking at a recent human-rights conference in Vienna, is to “learn from the past and make sure it doesn’t happen again.”