War crimes tribunals

The war crimes tribunals — Yugoslavia, Rwanda, Cambodia, Sierra Leone, and the ICC — together cost $3.43 billion from 1993 through 2009 in donor contributions; indirect costs of the national and international machinery needed to administer the program would have to be added.

Thus reports Michael IGNATIEFF in a rather chastened review of the success of this enterprise by the international community[1]. It convicted over 130 individuals[2], between “first” and “second class” criminals.

The ICC “has been in business since 2003 and its docket is now exclusively concerned with African cases, none of which has reached the stage of judgment.”

Could more have been achieved? Following the argument of Ambassador David SCHEFFER, who led the US Delegation to the negotiations over the ICC in Rome, Mr. IGNATIEFF lays much of the blame at Washington’s door. True the Americans impaled themselves on the horns of their twin and contradictory beliefs – idealism and exceptionalism. But even a determined US position would have changed little, in my view.

The ICC only has complementary jurisdiction over war crimes. Art. 17 provides that a case is inadmissible if “(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;”. As Mr. IGNATIEFF points out, the ICC thus deals with “rogue” states – and leaves the enforcement of international law among “big boys” to their own best and self-serving efforts: “International justice, above all, remains justice for criminals from defeated states or those too weak to deny jurisdiction.” There is a basic asymmetry here, which is going to bedevil the instrument. If the goal is justice, self-justice is a poor substitute.

Mr. IGNATIEFF proudly points to the fact that “Richard HOLBROOKE refused to offer amnesty to war criminals and, in so doing, saved the Yugoslav tribunal and gave the lie to the argument that peace could only be achieved at the price of justice”. He contradicts himself a few paragraphs later: “The unresolvable question is whether the ICC indictment played a part, inadvertently or not, in driving the Libyan operation beyond its original UN mandate of protecting civilians into full-scale “regime change,” although a coherent new regime has yet to emerge.” One may add that forcing GADDAFI to choose fight (and death) over flight might have rendered the ensuing pacification process more difficult. His partisans may feel honor-bound to avenge him in more ways than one.

As Mr. IGNATIEFF rightly points out – such matters cannot be resolved. We cannot predict in any meaningful way complex alternative scenarios and weigh such alternatives against each other. In particular we all too readily stake claim to “lives saved” and avoid responsibility for “lives lost” resulting from our choice – we ascribe them to unforeseable fate. Circumstances may force choices on us, but we should studiously avoid endowing the results with moral justification they lack. Let’s not disguise “path-dependent outcomes” as “moral high road to utopia.”

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