This month marks the 20th anniversary of the first session of the International Criminal Court under the Rome Statute, a milestone in efforts to end impunity for mass atrocities. The first generation of ICC operations show how necessary it is – and what still needs to be done to maximize its impact.
The concept of international justice was born as a phoenix from the ashes of the Holocaust and was first put into practice during the Nuremberg trials of Nazi leaders in 1945. A new emphasis on the individual – on the deserving civilian to be protected and on the perpetrator who deserves to be punished – marked a decisive change from a system in which heads of state had the right to kill or torture anyone within their borders . The idea of individual criminal responsibility for mass atrocities has challenged the old notion of unfettered state sovereignty and its animating philosophy that “might does good”.
Efforts to hold perpetrators of mass atrocities to account have continued in various forms, including through special ad hoc tribunals established by the UN Security Council. But as a permanent place to ensure justice for victims and accountability for perpetrators, the ICC is the crown jewel of the current system. It continues to represent the greatest hope for international justice.
Complementing the ICC is the international sanctions regime, which includes global legal standards (known as Magnitsky Laws) that allow for punitive measures – travel bans, asset seizures, financial bans and, in Canada, reassignment of assets – against specific individuals responsible for human rights abuses.
The ICC and targeted sanctions are important in themselves; but to realize their full potential, they must be mutually reinforcing. For example, the sanctions regime should be deployed against anyone who evades an ICC arrest warrant, or against foreign officials from Rome Statute states who do not cooperate with the ICC in carrying out its assignment.
One of the ICC’s greatest challenges has been ensuring that arrest warrants are executed. Former Sudanese President Omar al-Bashir traveled freely for years – making more than 100 trips abroad to various countries – while under an ICC arrest warrant. The failure to arrest Bashir has eroded the ICC’s credibility and significantly undermined its deterrent effect. But if the image of a free-flying Bashir were to be replaced by that of a handcuffed president at the airport, the story of international justice would begin to look very different.
States parties to the Rome Statute are required to cooperate with the ICC. But what if they refuse, as in the case of Bashir? This is where the penalties come in. These can be imposed on those who evade an ICC arrest warrant as well as foreign officials who fail to cooperate with the ICC.
We know that targeted measures can persuade state officials to change course, because we’ve seen “carrots” and “sticks”—incentives and coercive measures—work together to secure arrests in the past. For example, the promise of eventual EU membership convinced the Serbian government to hand over Ratko Mladić to stand trial in The Hague for war crimes, crimes against humanity and genocide during the Bosnian War of 1992-1995. Similarly, the US government’s offer of a $5 million reward for the arrest of ICC fugitives resulted in the surrender of militia leader Bosco Ntaganda to court in 2013, as well as the arrest and capture of various other fugitives from Rwanda and the former Yugoslavia.
“Sticks” – such as threats of economic pressure – have also proven effective. For example, a US threat to withhold aid led then-Yugoslavian President Vojislav Koštunica to change his mind in 2001, resulting in the extradition of Slobodan Milošević to The Hague for trial by an international tribunal.
To exert such leverage more consistently, states with existing sanctions legislation should amend their laws or regulations to include requests from the ICC prosecutor among the triggers for considering new sanctions designations. . If all ICC member states adopted such a policy, 123 countries would become off-limits to fugitives.
The coordinated implementation of targeted sanctions in these circumstances would help advance human rights and the rules-based order that protects them. By interweaving two of the most transformative trends in international justice – trials and sanctions – we can ensure that the effort to fight impunity grows stronger, rather than weakens, over time. The victims of the world’s worst crimes deserve nothing less.
By Irwin Cotler, Allan Rock and Brandon Brandon
Irwin Cotler, former Minister of Justice, Attorney General and Member of Parliament for Canada, is Canada’s special envoy for the preservation of the memory of the Holocaust and the fight against anti-Semitism.
Allan Rock, former Canadian Ambassador to the United Nations, is a member of the World Refugee & Migration Council.
Brandon Silver, a human rights lawyer, is Director of Policy and Projects at the Raoul Wallenberg Center for Human Rights.