Obstacles in International Justice: The Establishment and Efficacy of International Courts

Harvard International Review, Winter 2009 | Go to article overview

Obstacles in International Justice: The Establishment and Efficacy of International Courts


How did the precedents set by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) change the concept of accountability systems in conflict situations?

The establishment of the ICTY and later the ICTR was the birth of international criminal justice. This was the first attempt at setting up an international criminal court and, surprisingly, was spearheaded by the UN Security Council. This was an experimental approach, as prior to these tribunals, international lawyers and political leaders thought that only treaties could achieve international justice. As such, we take for granted two aspects that were seminal in its eventual institutionalization. First, the ICTY, the ICTR, and subsequent international courts have demonstrated that international courts can work, which had never been a proven or assumed premise; the blending of international courts, judges, and legal systems had never worked before. Secondly, and most importantly, international courts have substantially advanced international law and international humanitarian law. Unlike today, where international laws are fairly common topic of discussion, they were often overlooked before the establishment of ICTY and ICTR.

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How effective were the tribunals in preventing war crimes and setting clear wartime legal standards? In post conflict times, how do you think this accountability measured in areas such as Croatia?

The war in Croatia was wretched, and many people have questioned the establishment of a Criminal Court on the international front or some form of a tribunal. The war modified the conflict among the people, and it is impossible to tell whether the tribunals were relevant to that. Terrible war crimes were certainly committed in Croatia, but it could have been worse. The leaders in Croatia wanted troops to protect them. That sort of warning would not have been given if war crimes were not being committed. This weakened the intensity of the crimes and they were not as bad as they could have been.

Were the ICTR and the ICTY instrumental in creating the impetus for the International Criminal Court (ICC)? What do you perceive to be the biggest achievement of the ICC to date and what obstacles does it continue to face?

Absolutely, without the ICTR and ICTY there would not have been an ICC. Had the tribunals not been established, or worse, had they been established and failed substantially, that meeting would not have even been held. I think the greatest achievement of the International Criminal Court has been to get more than half of the members of the United Nations to ratify its existence. This is an achievement in and of itself, compounded by the fact that the United States, the most powerful country in the world, opposed its ratification. Yet that did not stop 106 nations from climbing on board and seeing the ICC's ultimate vision. Now the United States seems to be having a change in heart towards the ICC and becoming more open to its purpose. This is evident in the political statements expressed by presidential candidates who have both openly supported it.

Is the lack of whole-hearted US support in recent years the greatest obstacle to success of the ICC, and does this endanger the chances of its actual ratification?

Yes. For any international court, the most difficult task is ensuring governments' support, on which courts are completely dependent. Without support, it would be quite risky and diplomatically problematic for courts to hold trial. In the foreseeable future, I think there is no chance at all of the ICC's ratification. As long as the US military opposes it, I cannot see any US president or senate ratifying it. …

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