Congratulations and Condolences

Celebrations were muted in the windswept streets of the Hague last week at the war crimes conviction of former Liberian president Charles Taylor. The first guilty verdict for a head-of-state in the history of UN war crimes courts is an important milestone to be sure, but it masks a deeper malaise for war crimes justice, which is finding it harder to win cases as political support drains away.

The center for these anxieties is not the Sierra Leone Special Court, which is expected to give Taylor a long jail sentence next month, but the gleaming skyscraper across town that houses the International Criminal Court.

The ICC was designed as the successor to half a dozen temporary UN courts that are now, like the special court that convicted Taylor, winding up their affairs. Lost amid the triumphant headlines about the Taylor story are some grim figures. The ICC, which has been open for ten years now, has cost more than $1 billion, employs 750 staff, and has a grand total of one conviction. That solitary conviction, of Congolese warlord Thomas Lubanda, who was jailed earlier this year for use of child soldiers, seems like a poor return on so much investment.

In the bars and restaurants of The Hague, the lawyers and activists who cluster around the half-dozen courts that make their home here argue about the reasons for this lack of success.

Some blame mistakes by ICC chief prosecutor Luis Moreno Ocampo, seen by some as lacking bite by virtue of a background spent in academia rather than battling in the world’s courtrooms. Others say it simply takes time for a court which such an ambitious mandate to get its act together. What all agree on is that the number one problem for the ICC and for war crimes justice is political support. Or rather, the lack of it.

The ICC was originally designed by the UN to replace ad hoc courts that have brought justice to the former Yugoslavia, Rwanda, and Sierra Leone. But objections from the United States, China, and Russia, among others, saw it divorced from the UN apparatus. It exists, instead, as a curious free-standing organization, governed by its 121 member states.

Its long-term aim is to win integration into the UN, but for the moment it is stuck halfway down the road. It can police its own members, but most states who commit war crimes do not join the ICC. Instead, it encourages the UN’s Security Council to refer cases to it.

This has happened twice, with the Security Council ordering it to investigate Darfur in 2005, and last year, Libya. Both cases are stuck in the mire. In 2008, Ocampo indicted Sudan’s president Omar Al Bashir for genocide. Bashir, not surprisingly, chose not to turn himself in and, to date, the Security Council has put little pressure on Sudan to change the policy.

A similar impasse, for different reasons, is underway with Libya. The new government arrested Saif Al Islam Qaddafi, son of the late dictator, in November last year. Charged with war crimes by the ICC, the rules say Tripoli must hand him over to The Hague, but Libya’s government insists it will try him at home. As with Sudan, the court itself is powerless to intervene. Only the UN can take action and, as with Sudan, there has thus far been a deafening silence.

The problem is not new. Richard Goldstone, who prosecuted war criminals from the former Yugoslavia in the first international court in The Hague, famously said that the international community were his "arms and legs." Without those arms and legs, a prosecutor can issue indictments, but will have little power to actually haul suspects to court.

Political support for these courts has been sporadic. When there is a will, there is a way. In the late 1990s, America and Britain ordered their special forces to arrest war crimes suspects in Bosnia, and soon the cells of the Hague Tribunal were full to bursting.

But international support for war crimes courts is more honored in the breach: The ICC’s very first suspect, the murderous Ugandan warlord Joseph Kony, remains free and continues to cause mayhem in the forests of central Africa.

More cases are piling up for the ICC, but as with Libya and Sudan, too often the political support is lacking to make arrests. This is not a new problem: Indeed, war crimes justice exists more by accident than design. There has never been a world conference of key states to lay out the necessity for war crimes courts. The International Criminal Tribunal for Yugoslavia was set up back in 1992 more as a fig leaf for the international community’s inaction than as an institution with a clearly defined agenda. The horrors of Rwanda obliged the UN to create a second tribunal in 1994, and more wars triggered more courts: Cambodia, East Timor, Lebanon, and Sierra Leone.

Even the choice of the Hague as the world’s war crimes justice capital is accidental. The Hague Tribunal moved there because there was an existing court, the UN’s International Court of Justice. But with the winding down of the UN courts and the flailing efforts of the ICC to pick up the slack, the world’s experiment in war crimes justice is at a crossroads.

Most of the world’s war zones are in states that are not part of the ICC, and none are likely to see an ICC referral from the Security Council: Not only are the permanent five security council members, Britain, China, France, Russia and the United States in effect exempt, but so are their allies. Thus America is expected to block any attempt to investigate Israel for Gaza, China will prevent Sri Lanka being investigated for horrors against the Tamils, and Russia will block any such effort for Syria. (Above, Syrians mourn at the funeral of those killed by government forces.)

The result is that the ICC is forced to work with what is left. All seven of its investigations are in Africa, which has triggered criticism from leaders across the continent that they are being unfairly targeted — the theme of much of Charles’s Taylor’s own defense. ICC chiefs have sought to dampen such criticism by choosing a Gambian, respected jurist Fatima Bensouda, as the new chief prosecutor when Ocampo retires in June.

But cynics suspect that Africa’s leaders are less concerned for the nationality of the prosecutor than the fact that while most of the world’s war crimes are being overlooked, theirs are the subject of scrutiny. The African Union has already declared that member states are not obliged to arrest ICC suspects, and some are considering withdrawing from the court altogether.

Supporters of the court insist that, whatever the political machinations, the system has proved itself. "The system works," declares Sir Geoffrey Nice, a British Queens Counsel who prosecuted former Yugoslav strongman Slobodan Milosevic. "There is a family of international courts, they are developing law in their judgments, which is they build on each other. If you view these courts as a mechanical device, then you can say the machine works."

But the problem of political support remains. And international courts have their critics. One perennial problem is the sheer time and cost of the trials: Taylor’s took six years. Milosevic’s took four — so long that the defendant died of heart failure before it could finish. Skeptics, notably Henry Kissinger, have pointed to the lack of accountability of a court which has no jury trials, and whose judges are not answerable to any elected government.

Among supporters, the fear is not that the ICC will vanish —  it is too big to fail — but rather that it will continue to find itself sidelined. Richard Dicker, director of the international justice program at Human Rights Watch in New York, says: "There is a real danger that this court will be League of Nation-ized, and that will happen if there isn’t an increasing commitment on the part of states."

For an example of what that might mean, the occupants of the ICC have only to travel a few miles across The Hague to the International Court of Justice. It is housed in the gothic splendor of the Peace Palace, commissioned in 1913 by philanthropist Andrew Carnegie in the hope it would become a "world court."

That role never materialized, and the Peace Palace has assumed a more humble role. The ICJ arbitrates on disputes between states. Important work, certainly, but the lack of any criminal prosecution, and the need for arbitration to be voluntary, means the court seldom hits the headlines.

Just such a fate may yet await the ICC. In years to come, it may find itself a historical curiosity along with the Peace Palace, viewed as a monument to something that was a good idea that never quite worked out.