Bassiouni “Quite Doubtful” International Criminal Court Will Succeed — The Failures, Challenges, and Future of International Criminal Law
International criminal law expert M. Cherif Bassiouni delivered the keynote luncheon speech on March 25, 2010 at the International Law Students Spring Conference in Washington, D.C. to approximately 150 law students and law professors from around the world. The event coincided with the Phillip C. Jessup International Law Moot Court Competition, which had 127 Jessup teams from 76 countries.
- The International Criminal Court is overly bureaucratic and will likely be ineffective.
- International criminal tribunals do not, by themselves, create justice.
- There will be a shift away from international courts and tribunals.
- The international community should foster prosecutions within a system of effective national systems.
- International law should facilitate increased domestic prosecutions.
After dedicating much of his career to the establishment of the International Criminal Court, M. Cherif Bassiouni — often called the “father” of international criminal law — startled an audience at an international law conference in Washington, D.C. on Thursday when he called some international criminal tribunals shams and declared others to be mired in bureaucratic failures. He asserted that there really is no political will by States to have an independent international criminal justice system. Experience has shown that States can create obstacles to justice and international accountability by intentionally underfunding some efforts, making access to data difficult, supporting tribunals premised on little more than window-dressing, and creating overly bureaucratic international criminal systems. He never blatantly said the ICC will dissolve, but he implied its current overly bureaucratic framework is leading to the Court’s irrelevancy. Whereas his quixotic dream has been to build an international criminal system to stop national politicians from determining who gets prosecuted, the hero of international criminal justice now implies that his vision is unachievable, at least within any foreseeable future. As such, Bassiouni predicts that there will be a transformation of international law and its institutions. “International criminal justice will take another turn,” he said. “And maybe it’s a turn for the best.” Specifically, we likely will see a shift from supranational criminal courts to national courts, which he said will be more successful in prosecuting the guilty. The challenge he put forth to the lawyers and soon-to-be international lawyers in the room is how to use international law both to connect the national courts and to provide for effective domestic prosecutions of international crimes.
Bassiouni said he is “quite doubtful” the International Criminal Court (ICC), at its current levels of efficiency, will be able to meet the expectations of the international community, particularly when it becomes the sole international criminal court in 2012 after the ad hoc international tribunals shut down. The experience of the ICC thus far, he said, illustrates an international court would require an “exorbitant” economic and administration infrastructure. He pointed to its current bureaucratic overload of 1,100 staff, budget of $145 million for this year alone, and limited prosecutorial capacity, by which the ICC has pursued merely four cases with seven defendants during its seven years in operation.
“Who can afford international criminal justice at [these] costs?” he said. In addition to the $145 million for this year’s ICC budget, he cited the $1.7 billion spent on prosecuting 177 defendants before the ad hoc International Criminal Tribunals of the former Yugoslavia (ICTR) and Rwanda (ICTR). The ICTY averaged $10 million per defendant with an average case length of 2.5 years. He did not consider the average cost of prosecution per victim; however, he did ask attendees to consider whether the money could be better spent before international crimes are committed, such as on conflict prevention and mitigation, rather than after the conflict.
He also warned against being mesmerized by what he calls the “Potemkin tribunals,” such as the Cambodia Tribunal, formally known as the Extraordinary Chambers in the Courts of Cambodia (ECCC). That Tribunal, he asserted, may look enchanting with its Hollywood-style props and facade. Although the star-struck may be deceived by the theatrics, he said “there is really very little” behind the scenes. To him, the ECCC is akin to two large hamburger buns with scant food in between, spurring him to ask, “Where’s the beef?”
Bassiouni’s conclusion that national courts will replace and assume the roles and functions of international criminal courts came as a surprise to many attendees, who know Bassiouni not only as one of the few ‘learned scholars’ recognized as an authoritative source on human rights and international criminal justice by international courts but also as a chief architect of the ICC. In 1998, Bassiouni served as the Chair of the Drafting Committee at the Rome Conference, formally known as the United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, where 5,000+ lawyers and diplomats from 148 countries drafted the Rome Statute of the ICC. The Rome Statute established the ICC as a treaty-based independent judicial body empowered to prosecute the world’s worst crimes. He also served as the UN’s chief war-crimes investigator in Bosnia from 1992 to 1994 and arduously fought for the establishment of the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY). He was Co-Chair of the Committee of Experts that drafted the UN Convention Against Torture (CAT) and the author of the 1980 Draft International Criminal Code to prosecute apartheid.
Bassiouni gave no details on how to accomplish the task ahead, took no questions, and swiftly left for the airport to catch a flight. I took his challenge to mean that it is time for more effective solutions that bypass the international criminal institution he fought so hard to create. Ironically, international criminal law, as implemented by the international courts and tribunals, could be considered to be in a nascent state. As such, will the transformation of international law essentially be an incremental evolution of complementarity? Will we see enhanced treaty obligations to prosecute domestically and stiffer legal consequences for noncompliance? Will we see greater acceptance of universal jurisdiction to compensate for those states unable or unwilling to prosecute? Will we see a new framework embodied as amendments and protocols to existing treaties, or will we see a comprehensive framework in a new international legal instrument?
Much of Bassiouni’s speech affirmed his reputation as a great storyteller. As with any experienced international lawyer-diplomat, he does not tend to clearly state conclusions. Instead, he intersperses historical examples among current issues, thereby requiring the listener to draw his or her own inference or conclusion on the intended moral of the story, as it were. Thus, I inferred many of his examples to criticize current senior political leaders and international institutions for failing to adequately stop the commission of international crimes and for failing to provide a credible alternative to demagoguery. Further, his examples seemed to impliedly call upon the attendees, as lawyers and as individuals, not just to reject theatrical facades but also to express indignation at the injustices done by political leaders who would obscure, distort, and violate international law at the expense of their societies and citizens.
He pulled from his research to provide an intriguing qualitative and quantitative analysis of the failures and challenges of international criminal law. In doing so, he outlined a new vision for the future as informed by a systematic look at the key questions of international criminal justice. How effective are international criminal prosecutions in providing truth, justice, and redress for victims and in preventing future mass atrocities and widespread victimization? Although the international community presumes that these prosecutions have a deterrence function, do the facts and evidence support such deterrence? Do leaders continue to commit genocide, crimes against humanity, war crimes, and torture? Although Bassiouni warned at the beginning of his speech that many of his comments would be largely discouraging, he was quick with a smile of optimism and seemed firm in his resolve that accountability, justice, and redress for victims are achievable goals.
M. Cherif Bassiouni, Keynote Speaker, International Law Students Association Spring Conference, March 25, 2010, Washington, D.C.
Photo: Renee Dopplick
Failures of International Criminal Law and International Institutions
Bassiouni began with the failures sabotaging our ability to match our ideals to justice. He highlighted the seemingly widespread acceptance of demagoguery over a commitment to the rule of law. He described how Potemkin tribunals and certain institutionalized policies, such as the U.S. policy on torture under the Bush administration, undermine the integrity of the legal process and the public’s confidence in the rule of law. He also asserted that impunity for mass atrocities tends to prevail because the current framework fails to adequately provide the ‘carrot’ of incentives for legal compliance and the ‘stick’ of criminal prosecutions.
Potemkin Tribunals – Theatrical Facades Rather Than Justice
Do not be “mesmerized” by the Potemkin tribunals, such as the Cambodia Tribunal (ECCC), Bassiouni warns. “How can anybody conceive of the Cambodia Tribunal, which will ultimately prosecute no more than 5 persons, all in their 80s — to be a symbol of international criminal justice is really stretching it,” he said. He next described how Russian General Grigory Potyomkin erected theatrical facades and fake villages alongside the riverbanks to fool Empress Catherine II when she journeyed down the river on a barge to see the post-conflict countryside. Story has it that she was near-sighted and did not recognize the opprobrious ruse.
International criminal justice, he cautions, does not happen just because we have international institutions.
As background, the Cambodia Tribunal is prosecuting five people for serious crimes committed during the Khmer Rouge regime 1975-1979. The five defendants include: Guek Eav Kaing, Chea Nuon, Sary Lang, Thirith Leng, and Samphan Khieu. The ECCC is an example of the so-called hybrid international criminal tribunals in that it has both domestic and international judges and staff and was created in cooperation with the United Nations. It has jurisdiction to prosecute certain international and domestic crimes. An audit in 2007 revealed mismanagement, excessive salaries, corruption, and kick-back schemes. In addition, the Tribunal has been criticized, among other things, for: (a) limitations on who can testify, under the guise of allegedly seeking to prevent another civil war, (b) its reliance on government officials, who may have a vested interest in noncooperation, for enforcement of its subpoenas, (c) its undefined procedures for victims’ representation, (d) occurrences of misconduct by lawyers, and (e) lack of judicial and financial transparency. Further, at one point, the Tribunal threatened to halt operations within weeks unless it received an additional $100 million to complete its mandate. The Tribunal currently expects that it will take an additional five years, until 2015, and seeks an additional $93 million. The Global Policy Forum provides a collection of related news articles 2004-2010.
International Courts Are Expensive and Overly Bureaucratic
At various points, Bassiouni emphasized the high costs of the international courts. The ICC, as stated earlier, has a budget of $145 million for 2010 with 1,100 staff. The ICTY and the ICTR have a combined cost of $1.7 billion thus far.
Bassiouni did not mention the costs of the Cambodia Tribunal when he detailed the high costs of the various international tribunals. Its omission seemed intentional, as if inclusion might give Cambodia a shred of credibility through mere recognition as one of the tribunals.
Institutionalization of Torture by the United States Evades Domestic and International Prosecution
Bassiouni highlighted how the institutionalized practice of torture by the United States undermines the integrity of the legal process, our systems of domestic law, international laws, and the position of the United States as a champion of the rule of law and human rights worldwide. He sharply criticized those few lawyers, such as John Yoo, who used their skills to serve political interests at the expense of the legal system. He disdainfully recounted how those few lawyers argued that torture was not well defined under international law and that only conduct resulting in “organ failure” constituted torture. He noted that, at that point, “you’re dead.” He also criticized how those few lawyers asserted that the Geneva Conventions did not apply and that there was something called “enemy combatants,” which created a vast cavernous hole in which no law applied. He reiterated that torture violates the Eighth Amendment of the U.S. Constitution, the Uniform Code of Military Justice (UCMJ), and Title 18 § 2340 of the U.S. Code, which incorporates the Convention Against Torture (CAT) in domestic U.S. criminal law. Further, Bassiouni said, despite what Yoo and others previously contended, torture also violates international humanitarian law as codified in the Hague Conventions and the Geneva Conventions and associated Protocols.
Analogizing to “taxes,” he asked whether those lawyers would have been charged with tax avoidance if the subject matter had been taxes rather than torture. How long it would have been before those lawyers would be before a professional ethics panel facing a possible suspension of their law license or criminally charged? If any of these lawyers had served in uniform, would they have come to the same outcomes? The risk to U.S. uniformed service members is that enemies now will treat them as we treat our enemies.
For more, I recommend reading his full article: M. Cherif Bassiouni, The Institutionalization of Torture Under the Bush Administration, 37 Case W. Res. J. Int’l L. 389 (2006).
No Carrot + No Stick = Impunity to Commit Future Atrocities
International criminal justice largely fails to provide the ‘carrot’ to induce potential human rights violators to comply with international law and the ‘stick’ of criminal prosecutions, Bassiouni said. He specifically highlighted the irony embodied in Common Article III, which offers no incentives for non-state actors to comply with international humanitarian law because they do not get the benefit of POW status. “In a perverse sense, the absence of giving some status to the non-state actor induces the non-state actor to engage in the violence,” he said. He further explained, “Only through a process of accretion in the harm that the non-state actor does can the non-state actor reach the point where [he can] politically negotiate.” Bassiouni pointed to the example of Charles Taylor, and the incentives for him to escalate the violence and negotiate impunity for himself. As I understood Bassiouni’s statements, non-state actors essentially will be prosecuted if they kill a few, but they will gain political leverage to negotiate impunity if they kill masses because States will have an interest in stopping the harm and violence.
He next cited his research, which showed that, of the 313 conflicts between 1945-2008, 126 of those conflicts ended with a national law granting total amnesty to the perpetrators of the violence. He noted that these amnesty laws were enacted notwithstanding all the legal frameworks created to address the international crimes of genocide, war crimes, crimes against humanity, slavery, etc.
Thus, he said, if we have neither the carrot of inducement for legal compliance nor the stick of criminal prosecutions, can we confidently conclude that we have deterrence? This, he said, led him to ponder whether deterrence depends on the number of people prosecuted. He told the the audience that they would be “flabbergasted” by the result. He then stated that 866 people have been prosecuted for the 92 million deaths in the 313 conflicts during the past 60 years. Bassiouni offered no firm conclusion; rather, he left the attendees to determine individually if that constitutes effective deterrence.
Challenges of International Criminal Law and Its Institutions
Bassiouni asserted that the progress of international criminal justice has neither been an easy or an even one. “Above all, it is a progress that has been conditioned by political considerations,” he said.
Counting the Number of Conflicts and the Number of Victims
Roughly ten years ago, when he served as the Chair of a conference on victimization in international conflicts, he discovered that he could not obtain an accurate assessment of the number of conflicts in the world or the number of victims worldwide since WWII. He acknowledged that eight different centers around the world, at that time, collected data related to peace and conflict. None of them, however, approached it from the international criminal justice perspective, he asserted. As such, Bassiouni gathered the data over 8 years in collaboration with his research teams, social scientists, and other professionals.
Then, two and a half years ago, he gathered 43 experts from 18 countries representing the five regions of the world. From 2007-2009, their work was further reviewed by 628 experts from 86 countries.
He found that, from the end of the WWII in 1945 to 2008, the world has seen 313 conflicts, resulting in 92 million people killed. Putting it in perspective, he stated more people have been killed by conflict in the past 60 years than double the number of victims killed in World Wars I and II combined. He estimated that no less than 1 million people perpetrated the violence. Yet, he said, only 866 violators have been prosecuted.
For more, I recommend reading the full report: The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (M. Cherif Bassiouni ed., 2010, Brussels: Intersentia).
Difficulties with the Classification of Conflicts
Bassiouni asserted that one of the biggest difficulties in understanding international criminal justice is the task of classifying the conflicts. He identified three types of conflicts: (1) conflict of an international character, (2) conflict of an non-international character, and (3) a purely internal conflict. He also stated that there is a different legal regime for each. “It is easy to classify a conflict as one of an international character because there are two States that are fighting,” he said. Here, he observed, the legal framework for conflicts of an international character includes the Geneva Conventions, Protocols I and IV, and customary international law as codified in Protocol I. In contrast, a conflict of a non-international character is more problematic, both to identify and to deal with under international law. The Geneva Conventions, he asserted, do not provide adequate guidance on what the legal thresholds are to constitute this type of conflict. Moreover, the additional legal tools applicable to conflicts of a non-international character – namely Common Article III and Protocol II — are problematic because they, as stated earlier, lack incentives to induce potential human rights violators to comply with international law. The third type of conflict, a solely internal one, is also difficult to identify. Bassiouni questioned when, and by what criteria, do we elevate a situation, such as a riot or disturbance, to the level of a ‘conflict.’
The Future of International Criminal Law and International Institutions
Almost at the end of his speech, Bassiouni demonstrated that he buried the lead. Bassiouni — who spent his entire career building the current international justice system in order to stop national politicians from determining who gets prosecuted — predicted the demise of the current international justice system.
He framed his concluding remarks by emphasizing that he does not see a conflict between peace and justice. Rather, it is an issue of timing – an issue of how to sequence events. He endorsed the role of comprehensive planning, yet, he said that “the international community almost doesn’t want to see planning as one of its functions.” He also reiterated his warning not to be mesmerized by the Potemkin trials.
Then, he turned to his surprising conclusion. “At [the ICC’s] present levels of efficiency, I am quite doubtful that it will be able to meet the expectations of the international community,” he said. “International criminal justice will take another turn,” he said. “And maybe it’s a turn for the best.” “That turn is going to be to look at national criminal justice to assume the roles and functions of what we commonly speak of as ‘complementarity.'” He pointed to recent positive signs, such as the passage by the United States, within the past few years, of the Genocide Convention Act and the Children Soldiers Protection Act. Further, a group of scholars and experts is working on a Crimes Against Humanity Convention. That effort is coordinated by Washington University in St. Louis.
His conclusion, given here as close as I could get it:
“Maybe, because of all these negative experiences, [. . . ] which we have always taken as encouragement, and as building blocks, we are going to be able to move to what I consider to be a more effective system of international criminal justice – that is, the national systems. What we will need to work next on is how to connect the national systems through international cooperation. So, the challenge ahead is exciting. I hope that, among those who are here, you are going to be among the next generation of champions of [international criminal justice]” (applause)
Biography – M. Cherif Bassiouni
M. Cherif Bassiouni, Professor Emeritus of Law at DePaul University, is a United Nations war crimes expert. Bassiouni has served the United Nations in a number of capacities, including as co-chair of the Committee of Experts to draft the Convention on the Prevention and Suppression of Torture (1977); chairman of the Security Council’s Commission to Investigate War Crimes in the Former Yugoslavia (1992-1994); vice-chairman of the General Assembly’s Ad Hoc and Preparatory Committees on the Establishment of an International Criminal Court (1995 and 1998); chairman of the Drafting Committee of the 1998 Diplomatic Conference on the Establishment of an International Criminal Court; independent expert for the Commission on Human Rights on The Rights to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms (1998-2000); and independent expert for the Commission on Human Rights on the Situation of Human Rights in Afghanistan (2004-2006).
He is the author of 32, and editor of, 47 books, and the author of 241 articles on a wide range of legal issues, including international criminal law, comparative criminal law, and international human rights law.
He earned his J.D. at Indiana University; LL.B. at University of Cairo; LL.M. in International and Maritime Law at The John Marshall Law School; S.J.D. in International Criminal Law at George Washington University; Doctor of Law, honoris causa by the University of Torino (Italy), University of Pau (France), Niagara University (United States), and National University of Ireland, Galway (Ireland).
Additional Resources on Inside Justice
- Comparison of the International Court of Justice (ICJ) and the International Criminal Court (ICC)
- United Nations Courts and Tribunals
- The International Criminal Court in a New Era with ICC President Philippe Kirsch and Judge Patricia Wald, Feb. 13, 2009
- Institutional Mechanisms to Prevent Mass-Scale Atrocities with U.S. Ambassador Williamson, Jan. 27, 2009
- Professor Mahmoud Cherif Bassiouni, De Paul University College of Law
- International Law Students Association (ILSA)
International Criminal Courts and Tribunals
- International Criminal Court (ICC)
- International Criminal Tribunal for the former Yugoslavia (ICTY)
- International Criminal Tribunal for Rwanda (ICTR)
- Special Court for Sierra Leone (SCSL)
- Special Tribunal for Cambodia: Extraordinary Chambers in the Courts of Cambodia (ECCC)
- Special Tribunal for Lebanon (STL)