By Liam Carroll
Ending the age of impunity for war crimes and crimes against humanity has been a major global demand since the end of the Cold War. Ethnic cleansing in Yugoslavia, genocide in Rwanda, rape as a weapon of war in the Democratic Republic of Congo (DRC) and Uganda, mass expulsions and brutality in Darfur. They may be the worse cases but there are others, and the phenomena is set to endure, unless a way can be found to deter them.
Well, the growing recourse to charging perpetrators in international courts offers some hope. The tribunals for Rwanda and Yugoslavia have arrested, tried and convicted over a hundred war criminals and the Special Court for Sierra Leone has managed to get Charles Taylor (who fuelled the war by exchanging guns for diamonds from neighboring Liberia) in the dock. The International Criminal Court is in pursuit of the infamous Joseph Kony from the Lord's Resistance Army, for horrendous crimes in Uganda, and crimes committed in Darfur and the DRC are also under investigation, with three suspects already in custody.
This is a massive advance in ending impunity for perpetrators of crimes against humanity that include mass killings, sexual violence and recruiting and exploitation of child soldiers on a huge scale. Entirely absent during the Cold War, one has to go back to the Nuremberg Tribunals of Nazi War Criminals to find a precedent for trying war criminals outside of domestic courts.
It is hoped that the effect of seeing impunity for atrocities coming to an end will have a deterrent effect in other conflict situations. At it’s most utopian, the threat of investigation and prosecution, even for national leaders, would raise the global standard on what is considered permissible conduct in both war and peace.
An example of the deterrent effect occurred in Kenya after the recent election fiasco when Kofi Annan reminded both the government and the opposition that if they didn't reign in their rampaging supporters, then a commission of inquiry to investigate crimes against humanity would be set up; according to the International Crisis Group, the violence was quickly brought to a close.
There is of course a long way to go, and the tribunals for Rwanda and Yugoslavia are due to be terminated next year, even though notorious war criminals like Ratko Mladic and Radovan Karadzic remain on the loose in Serbia or Bosnia. There are also further risks that the Security Council may give up pressuring the Sudanese government for summonses against a Janjaweed militia leader and the Minister for Humanitarian Affairs who, somewhat ironically, is supposed to have given the orders for some of the most atrocious crimes in Darfur.
These prosecutions are in jeopardy for political reasons, and here-in lies the real threat to the advance of the rule of law in world affairs. Freedom from prosecution for crimes is now a regular feature of peace negotiations. In Uganda and the Sudan, negotiators are now trying to build impunity from prosecution (for Joseph Kony and other LRA leaders) into their peace agreements. Negotiators may be loathe to drop charges too readily, but in the face of failure to achieve peace, the temptation to drop prosecutions as an incentive to forge agreement, becomes more appealing. This has already occurred in the war between the southern Sudanese and north Sudan when impunity from prosecution was part of the final Comprehensive Peace Agreement. This is not all bad, as it does at least demonstrate that the threat of prosecution can act as a tool of persuasion, even if ultimately it is set aside.
Unless prosecutions are actually forthcoming though, the deterrent effect will weaken and loose credibility. This becomes a particular problem when addressing crimes committed by more powerful states and their allies. Who would pursue Chinese, American or Russian officials for crimes against humanity? What about Israel or Hamas? At what point should the rule of law come to bear on extremely heated political issues such as those in the Middle East? How can the ICC pursue criminals without the assistance of the UN Security Council of which five countries have the right to exercise their vetoes?
The advance of the rule of law in world affairs has much promise as a tool for ending impunity for crimes against humanity. There do seem to be some fairly robust limits though as to what can be achieved in bringing powerful countries into line. Currently, in the global arena, we have what might be termed ‘the short arm of the law’, it remains a worthwhile challenge to see if it’s supporters can’t make it somewhat longer.