The system of international criminal justice seems to exist in a state of perpetual change and crisis. Within a couple of days of the Council of Europe announcement earlier this month that it would establish a special tribunal to try Russian political and military leaders for the crime of aggression in Ukraine, the US president declared that his administration would be imposing sanctions on the International Criminal Court because of its “illegitimate and baseless actions targeting America and our close ally Israel”.
Steve Crawshaw is right, therefore, to refer to the efforts to prosecute the powerful for international crimes as a “battle for justice”. In his latest book, the former chief foreign correspondent of the Independent takes the reader through the historical development of international justice, the major conflicts and political events of relevance, and the various challenges and crises it has faced.
As well as a journalist, Crawshaw more recently served in senior positions with Amnesty International and Human Rights Watch. He writes from the vantage point of having witnessed various conflicts and periods of political turmoil up close, and as an observer and indeed contributor to justice and accountability efforts.
Prosecuting the Powerful is enlivened by interviews with many personalities and protagonists associated with international crimes and their prosecution. The author recalls the Serbian president Slobodan Milošević saying in 1992 that accountability for war crimes was “an excellent idea”. Neither he nor Crawshaw considered it remotely possible at the time that a state leader would end up in the dock of an international tribunal.
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Within a year, however, the UN Security Council had created the International Criminal Tribunal for the Former Yugoslavia, and less than a decade later, the trial of Milošević for genocide, crimes against humanity and war crimes opened in the Hague. Although Milošević died before the trial was completed, dozens of high-ranking politicians and military personnel were successfully tried and convicted before the Yugoslav Tribunal.
Since the early 1990s, international or hybrid tribunals have been created to address atrocities in Rwanda, Sierra Leone and Cambodia, while there have been numerous trials before domestic courts.
The centrepiece of international justice efforts remains the International Criminal Court. As the book shows, this permanent court is something of a paradox. On the one hand, since being established over two decades ago, the court has managed just half a dozen convictions, all of African rebel leaders and commanders. On the other hand, several of the world’s most powerful states have made a concerted effort to avoid the court’s jurisdiction and to weaken or obstruct its operations.
The International Criminal Court is simultaneously weak and strong.
The most recent attack on the court from the United States is without question a serious threat to the functioning of the institution. It is nothing new, however. While the United States may have been a driving force behind the establishment of the Nuremberg and Tokyo tribunals after the second World War, and a firm supporter of the ad hoc tribunals of the 1990s, Crawshaw observes that the superpower has at times merely tolerated the International Criminal Court, and at others, “loathed [it] with an unnatural passion”.
When the diplomatic conference to finalise the statute of the court was under way in Rome in 1998, Bill Clinton’s Secretary of State Madeleine Albright asked the US ambassador-at-large for war crimes, David Scheffer: “What can we do to blow up the entire conference?”
John Bolton, US ambassador to the United Nations under George W Bush and National Security Adviser during Trump’s first term, had hoped that the International Criminal Court would “wither on the vine”. Trump sanctioned the court’s prosecutor during his first term for investigating crimes in Afghanistan and Palestine. The latest sanctions are a response to the issuing of arrest warrants for Israeli prime minister Binyamin Netanyahu and former minister of defence Yoav Gallant.
[ ICC warrants for Netanyahu and Gallant need 125 countries to act as police forceOpens in new window ]
Crawshaw describes these warrants as an “extraordinary moment” which demonstrate that the world is no longer one of “unchallenged impunity”. The preceding warrants against six Russian political and military leaders, including president Vladimir Putin – the first for the head of state of a permanent Security Council member – suggest that international criminal justice has entered a bold new era.
[ ICC issues arrest warrant for Vladimir Putin over alleged war crimesOpens in new window ]
The reality, of course, is that the warrants remain outstanding, and that crimes continue to be perpetrated in Palestine and Ukraine, and elsewhere. While dozens of states, Ireland included, have issued a strong statement in support of the International Criminal Court following the latest US moves, other member states have been less than enthusiastic in ensuring that the court can fulfil its mandate in situations of flagrant criminality and impunity.
Prosecuting the Powerful reminds readers of the catalogue of atrocities and abuse that prompted the turn to international criminal justice and the very real risks of repetition where impunity is tolerated. Crawshaw shows the obvious double standards at play and the deliberately selective application of international justice that has often arisen. Yet there is an essential optimism in the work. It may not persuade the doubters, but will likely prove persuasive to those committed to a more just world.
Shane Darcy is a professor at the Irish Centre for Human Rights in the School of Law at University of Galway and director of the Summer School on the International Criminal Court
