Bringing Rogue States to Justice

Friday, July 30, 1999
Illustration by William Bramhall

The post–Cold War political landscape affords a fresh opportunity to use U.S. and international laws to combat the world’s tyrants. Previously, the American and Soviet spheres of influence shielded such rogues because of their usefulness to one side or the other. Now despotic leaders or individual terrorists who break global statutes outlawing war crimes and genocide face the prospect of arrest, trial, and punishment at the hands of international tribunals or even U.S. courts.

In 1984 and 1986, Congress enacted laws making it a crime to harm an American citizen or attack an American business for political aims anywhere in the world. Congress also authorized the FBI to investigate those crimes, arrest the perpetrators, and transport them for trial in U.S. courts. It also established a rewards program, whereby the government could offer up to $2 million for the prevention of or information about political violence leading to the arrest of those responsible for incidents against Americans or their property overseas. Washington recently increased the price on Osama bin Ladin to $5 million to demonstrate its determination and to sweeten the offer for would-be collaborators. It also extended the rewards program to the capture of indicted war criminals, even when Americans were not the victims.

These laws afford Washington effective tools against state or nonstate actors. For example, the United States has apprehended, tried, and convicted in a federal court Ramzi Yousef, a native of Pakistan who masterminded the 1993 World Trade Center truck bombing. With help from foreign contacts, FBI agents also captured, put on trial, and convicted Mir Amal Kansi of assassinating two CIA employees outside their Virginia headquarters in 1993.

The precedents for bringing war criminals to justice began after World War II, when an agreement was reached among the United States, the Soviet Union, Britain, and France to establish an international military tribunal. The agreement set forth the jurisdiction and functions of the tribunal as well as the crimes for which the defendants might be held individually responsible. The ensuing Nuremberg trials convicted and punished almost a score of Nazi military and civilian leaders for crimes against peace, war crimes, and crimes against humanity. A similar postwar trial took place in Tokyo for Japanese war criminals.

Simultaneous with the war crimes trials, the U.N. General Assembly unanimously resolved that genocide was “a crime under international law” for which private individuals as well as public officials were punishable. Two years later, in 1948, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, which defined genocide as killing or harming a group of people so as to entail its destruction. The convention entrusts punishment primarily to the courts of the concerned country, but if they fail to act, then the incidents can be reported to the International Court of Justice for possible action.

CONFRONTING GENOCIDE IN RWANDA AND BOSNIA

After the Soviet Union’s breakup, the times seemed propitious to refocus attention on violations of international norms, for the Soviets’ removal from international politics coincided with the unfolding of serious breaches in civilized conduct. In the early 1990s, large-scale killings, war-related rapes, and “ethnic cleansing,” first in southeastern Europe and then in Central Africa, riveted world attention on the necessity to bring the perpetrators to justice. The United Nations Security Council set up the International Criminal Tribunal in 1993 at The Hague to try war crimes cases arising from the conflict in the former Yugoslavia. By late spring 1999, The Hague had indicted eighty-four suspects for both the Bosnian and Kosovo conflicts, including Yugoslav president Slobodan Milosevic. Of this number, seven have been convicted and one acquitted. Charges have been dropped against eighteen suspects and six died before they could be tried. The majority of the indicted suspects are Bosnian Serbs, while most of the tens of thousands of victims came from the Muslim and Croat communities. The trials are proceeding.

The Security Council also established an international tribunal to investigate mass killings in Rwanda in 1994. Four years later, it sentenced the former prime minister of Rwanda, Jean Kambanda, to life in prison for his part in the mass murder of a reported half million Tutsis by their fellow Hutu countrymen. He was the first to be convicted of the crime of genocide, as defined in the postwar genocide convention. The three-judge panel, which was based in Arusha, Tanzania, also convicted Jean-Paul Akayesu, a former small-town mayor, for the crime of genocide and for the first time included rape as a genocide crime. The Rwandan verdicts and The Hague trials demonstrate an effective means of dealing with war crimes when national courts lack the capacity or inclination.

Faintheartedness in apprehending those accused of genocide ruptures the international judicial system and discredits the political framework of civilized states, as well as undercutting American efforts to defeat rogue conduct. One egregious illustration of this lapse is the failure to apprehend two of the foremost Serbian war criminals. In July 1995, an international criminal tribunal indicted Radovan Karadzic, the wartime political leader of the Bosnian Serbs, and General Ratko Mladic, the Serbs’ military head, on charges of genocide, crimes against humanity, and war crimes. The Dayton Accords, signed in December 1995 to bring peace to the former Yugoslavia, contained provisions for apprehending Dr. Karadzic and General Mladic, along with some seventy other indicted war criminals. The Hague also contended that the United Nations had a legal obligation to arrest both men, and many U.S. officials felt that they also had a moral obligation to bring them to justice.

After numerous opportunities and several millions of dollars spent in training for missions to place the two major figures in custody, Karadzic and Mladic remain at large. On more than one occasion, NATO troops could have arrested them, and the United States made elaborate plans for military operations to capture them but abandoned the preparations in mid-1998 as too risky. The United States and NATO feared reprisals by angry Serbs as well as an unraveling of the peace agreement or a bloodbath if the operation went awry. The Clinton administration hinted that it will await the slow erosion of Karadzic and Mladic’s support, as funds and adherents dwindle.


The barbarism of the 1990s in Rwanda and Bosnia riveted world attention on the need to bring the perpetrators of genocide to justice.


The power base of both men, Clinton officials hoped, will be subject to laws of diminishing popularity and receding finances with the passage of time out of office and the rise of other political figures. However, prospects for the Serbians’ gradual disenchantment with their wartime leaders appear faint at this writing. Be that as it may, the Clinton administration abdicated a moral and legal obligation. Had it led a NATO operation to bring Karadzic and Mladic to justice, a powerful message would have been sent to current and future perpetrators of mass murder. Such a message might lessen or even prevent future human rights abuses. Leaving indicted mass killers to wither on the vine signals that justice is being denied.

THE DANGERS OF AN INTERNATIONAL CRIMINAL COURT

The U.N. Security Council, where the United States enjoys a veto as one of the five permanent members, set up both the Bosnia and the Rwanda tribunals, thus allowing the United States to guide and protect its global role as the sole superpower. Efforts toward founding a supranational court, however, may jeopardize U.S. sovereignty and security.

Proponents of such a supranational court, to be called the International Criminal Court (ICC), met in Rome during June and July 1998. Delegates from more than 150 countries finalized language and adopted a treaty establishing the ICC as an independent and permanent international court for prosecuting war criminals, genocide, and crimes against humanity. Unlike the separation of duties under the American legal system, the ICC empowers judges and agents to investigate, prosecute, hand down judgments, determine sentences, and even hear appeals to its own pronouncements. Its jurisdiction could extend to U.S. territory and thereby threaten American sovereignty.

Unlike the ad hoc tribunals set up by the Security Council for specific crimes, the United States enjoys no protection from the interference of an international bureaucracy, unaccountable to any electorate. The possibility of a U.S. veto, such as the one it wields in the Security Council, has been structurally denied, as were procedures that have protected the United States from the whims of the U.N. General Assembly. Washington’s military operations, often conducted for larger international goals, would be subject to ICC prosecution for aggression or interference in another country. At best, Washington might feel constrained in implementing military actions; at worst, American civilian officials and military officers, after executing armed operations, might have to stand trial before judges drawn from all nations, including some of the most repressive, undemocratic societies on earth.

The Clinton administration, which had sponsored efforts and encouraged prospects for a supranational criminal court for five years, ultimately felt compelled to abstain from joining the ICC. American delegates concluded, too late, that articles establishing the international court violated the U.S. Constitution, undermined effective American actions around the world, and stood no chance of passage in the U.S. Senate. Although the United States abandoned the ICC treaty, it faces a plethora of future problems for its part in assembling a Frankenstein monster all too likely to turn on its creator.

The United States must do everything in its power to constrict the growth of the ICC, which will come into force once sixty nations ratify the statute. It must isolate it, deny its legitimacy, reject its jurisdiction, refute its decisions, and reduce its status. In the past, skittishness about international courts has led the United States to refuse to recognize decisions handed down by the International Court of Justice (ICJ). Commonly known as the World Court, the ICJ was established to adjudicate disputes among nations, not to try individuals. It has handed down decisions outlawing the use of nuclear weapons and condemning as unlawful the U.S. sanctions on Nicaragua during Washington’s conflict with the Sandinista government during the 1980s, prompting the United States to withdraw from mandatory jurisdiction. The United States will have to adopt a similar policy of not recognizing judgments by the ICC.

Washington must counterbalance its attack on the ICC by supporting the current system of tribunals crafted by the U.N. Security Council. Such tribunals, like those trying cases from Rwanda or Bosnia, are charged with defined authority, which prevents them from going beyond their original mandate. Their flaws, including charges of lacking impartiality and needing greater financial assistance, can be corrected. They can be more frequently impaneled so as to confront the charge that there are too few to handle the many cases of war crimes and crimes against humanity.


Saddam Hussein’s well-documented atrocities make him a prime candidate for an international indictment.


The international outcry against war crimes and their perpetrators gives U.S. diplomacy a club to wield against rogue rulers who commit genocide against their own citizens or other national, religious, and ethnic communities. By using them properly, Washington can add U.S. courts and case-specific international tribunals to its antirogue arsenal. Saddam Hussein’s well-documented atrocities make him a prime candidate for an international indictment. Like economic sanctions, which are also nonmilitary steps, law is a powerful instrument that can help constrain, stigmatize, and isolate a rogue target. An indicted leader, even if unable to be brought to justice, becomes an international outlaw. And unlike sanctions, indictments pose a genuine threat to the personal safety and freedom of war criminals.