With this month’s 25th anniversary of the Rwandan genocide it is important that mankind continue to maintain a system of international accountability to help prevent future atrocities. The Rwandan atrocity was one of the catalysts that created the modern international criminal law system. Coupled with the horrors in the Balkans, the United Nations, under the leadership of the United States, created the first international war crimes tribunals since Nuremberg in 1945.
The International Military Tribunal at Nuremberg was mankind’s first attempt to hold those who committed atrocities accountable under the rule of law. That seminal effort to try the leaders of Nazi Germany was led by an American, Robert H. Jackson, who was the chief U.S. prosecutor at the tribunal. The jurisprudence coming from the International Military Tribunal at Nuremberg in 1945-49 was the cornerstone by which the modern system of accountability was established in the mid 1990s.
{mosads}All this was historically significant because the international community for centuries looked the other way when heads of state, dictators and monarchs turned against their own citizens and others for their sordid political, religious or ethnic advantage. Military historian John Keegan has said the history of war is the history of mankind, and the history of mankind is the history of war.
At the end of the 20th century, and the end of the decades long Cold War, the events in the Balkans, Rwanda and West Africa, particularly Sierra Leone, called for a different — even bold — approach to help seek justice for the millions of victims. The ad hoc and hybrid tribunals created for Yugoslavia, Rwanda and Sierra Leone were successful examples of what could be done when righteous fury is channelled into using the rule of law to hold accountable those who commit international crimes. These courts and tribunals were created with the focused effort and assistance of the United States.
As these efforts worked to seek justice for the crimes committed in Europe, as well as East and West Africa, the international community was working together at the Rome Conference in 1998 in making those experiments in international justice permanent. The United States was a key player in developing what became the International Criminal Court, created to deal with the most egregious international crimes, complemented by the efforts of the various state parties.
As world power shifted, with a diminished United States, in the 21st century, the very country that “built the house” called modern international criminal law stepped away from that house and handed back the keys, perhaps permanently. Since 2002, the United States has had a cynical and skeptical relationship with the International Criminal Court and, ironically, never became a state party.
After 9/11, the United States has tried to “drive a stake into the heart” of the court and, under the Trump administration, to undermine it. Though not a perfect institution, the International Criminal Court does not deserve this from a nation that once was the moral force behind accountability for atrocity, the United States.
Recently, the Trump administration revoked the travel visa of the court’s chief prosecutor, Fatou Bensouda. The reason for this revocation is her office’s investigation into allegations of war crimes in Afghanistan, including actions by the United States. This is a terrible signal to the world, as tyrants and strongmen watch from afar, realizing that ignoring the rule of law, not joining the court as a state party, or stepping away from the court might not be politically harmful to them. It weakens the entire concept of international peace and security.
The United States, under President Trump, has shown disdain for the international rule of law. This is enabling the actions of strongmen across the globe to do as they wish politically to stay in power and seek regional influence, knowing that there will be little to no accountability for their actions.
We have not seen this type of world imbalance since the early 1930s. The result then was horrific. Only the rule of law under the United Nations paradigm, bolstered by institutions such as the International Criminal Court, can keep us from the abyss. The United States needs to carefully nurture and support any efforts that maintain peace and security, not tear down the rule of law. Lest we forget…
Ben Ferencz was a leading force in the establishment of the International Criminal Court and is the last living prosecutor from the Nuremberg Trials.
Hans Corell, a former judge, was the legal counsel of the United Nations from 1994-2004. He was involved in the establishment of the tribunals and courts mentioned in the article.
David M. Crane, an international criminal lawyer, was the founding chief prosecutor of the international war crimes tribunal called the Special Court for Sierra Leone, 2002-2005.