Democracy Lab

Congratulations and Condolences

The conviction of Charles Taylor is welcome news. But don’t be fooled: The international criminal justice system is in deep trouble.

Celebrations were muted in the windswept streets of the Hague last week at the war crimes conviction of former Liberian president Charles Taylor. The first guilty verdict for a head-of-state in the history of UN war crimes courts is an important milestone to be sure, but it masks a deeper malaise for war crimes justice, which is finding it harder to win cases as political support drains away.

The center for these anxieties is not the Sierra Leone Special Court, which is expected to give Taylor a long jail sentence next month, but the gleaming skyscraper across town that houses the International Criminal Court.

The ICC was designed as the successor to half a dozen temporary UN courts that are now, like the special court that convicted Taylor, winding up their affairs. Lost amid the triumphant headlines about the Taylor story are some grim figures. The ICC, which has been open for ten years now, has cost more than $1 billion, employs 750 staff, and has a grand total of one conviction. That solitary conviction, of Congolese warlord Thomas Lubanda, who was jailed earlier this year for use of child soldiers, seems like a poor return on so much investment.

In the bars and restaurants of The Hague, the lawyers and activists who cluster around the half-dozen courts that make their home here argue about the reasons for this lack of success.

Some blame mistakes by ICC chief prosecutor Luis Moreno Ocampo, seen by some as lacking bite by virtue of a background spent in academia rather than battling in the world's courtrooms. Others say it simply takes time for a court which such an ambitious mandate to get its act together. What all agree on is that the number one problem for the ICC and for war crimes justice is political support. Or rather, the lack of it.

The ICC was originally designed by the UN to replace ad hoc courts that have brought justice to the former Yugoslavia, Rwanda, and Sierra Leone. But objections from the United States, China, and Russia, among others, saw it divorced from the UN apparatus. It exists, instead, as a curious free-standing organization, governed by its 121 member states.

Its long-term aim is to win integration into the UN, but for the moment it is stuck halfway down the road. It can police its own members, but most states who commit war crimes do not join the ICC. Instead, it encourages the UN's Security Council to refer cases to it.

This has happened twice, with the Security Council ordering it to investigate Darfur in 2005, and last year, Libya. Both cases are stuck in the mire. In 2008, Ocampo indicted Sudan's president Omar Al Bashir for genocide. Bashir, not surprisingly, chose not to turn himself in and, to date, the Security Council has put little pressure on Sudan to change the policy.

A similar impasse, for different reasons, is underway with Libya. The new government arrested Saif Al Islam Qaddafi, son of the late dictator, in November last year. Charged with war crimes by the ICC, the rules say Tripoli must hand him over to The Hague, but Libya's government insists it will try him at home. As with Sudan, the court itself is powerless to intervene. Only the UN can take action and, as with Sudan, there has thus far been a deafening silence.

The problem is not new. Richard Goldstone, who prosecuted war criminals from the former Yugoslavia in the first international court in The Hague, famously said that the international community were his "arms and legs." Without those arms and legs, a prosecutor can issue indictments, but will have little power to actually haul suspects to court.

Political support for these courts has been sporadic. When there is a will, there is a way. In the late 1990s, America and Britain ordered their special forces to arrest war crimes suspects in Bosnia, and soon the cells of the Hague Tribunal were full to bursting.

But international support for war crimes courts is more honored in the breach: The ICC's very first suspect, the murderous Ugandan warlord Joseph Kony, remains free and continues to cause mayhem in the forests of central Africa.

More cases are piling up for the ICC, but as with Libya and Sudan, too often the political support is lacking to make arrests. This is not a new problem: Indeed, war crimes justice exists more by accident than design. There has never been a world conference of key states to lay out the necessity for war crimes courts. The International Criminal Tribunal for Yugoslavia was set up back in 1992 more as a fig leaf for the international community's inaction than as an institution with a clearly defined agenda. The horrors of Rwanda obliged the UN to create a second tribunal in 1994, and more wars triggered more courts: Cambodia, East Timor, Lebanon, and Sierra Leone.

Even the choice of the Hague as the world's war crimes justice capital is accidental. The Hague Tribunal moved there because there was an existing court, the UN's International Court of Justice. But with the winding down of the UN courts and the flailing efforts of the ICC to pick up the slack, the world's experiment in war crimes justice is at a crossroads.

Most of the world's war zones are in states that are not part of the ICC, and none are likely to see an ICC referral from the Security Council: Not only are the permanent five security council members, Britain, China, France, Russia and the United States in effect exempt, but so are their allies. Thus America is expected to block any attempt to investigate Israel for Gaza, China will prevent Sri Lanka being investigated for horrors against the Tamils, and Russia will block any such effort for Syria. (Above, Syrians mourn at the funeral of those killed by government forces.)

The result is that the ICC is forced to work with what is left. All seven of its investigations are in Africa, which has triggered criticism from leaders across the continent that they are being unfairly targeted -- the theme of much of Charles's Taylor's own defense. ICC chiefs have sought to dampen such criticism by choosing a Gambian, respected jurist Fatima Bensouda, as the new chief prosecutor when Ocampo retires in June.

But cynics suspect that Africa's leaders are less concerned for the nationality of the prosecutor than the fact that while most of the world's war crimes are being overlooked, theirs are the subject of scrutiny. The African Union has already declared that member states are not obliged to arrest ICC suspects, and some are considering withdrawing from the court altogether.

Supporters of the court insist that, whatever the political machinations, the system has proved itself. "The system works," declares Sir Geoffrey Nice, a British Queens Counsel who prosecuted former Yugoslav strongman Slobodan Milosevic. "There is a family of international courts, they are developing law in their judgments, which is they build on each other. If you view these courts as a mechanical device, then you can say the machine works."

But the problem of political support remains. And international courts have their critics. One perennial problem is the sheer time and cost of the trials: Taylor's took six years. Milosevic's took four -- so long that the defendant died of heart failure before it could finish. Skeptics, notably Henry Kissinger, have pointed to the lack of accountability of a court which has no jury trials, and whose judges are not answerable to any elected government.

Among supporters, the fear is not that the ICC will vanish --  it is too big to fail -- but rather that it will continue to find itself sidelined. Richard Dicker, director of the international justice program at Human Rights Watch in New York, says: "There is a real danger that this court will be League of Nation-ized, and that will happen if there isn't an increasing commitment on the part of states."

For an example of what that might mean, the occupants of the ICC have only to travel a few miles across The Hague to the International Court of Justice. It is housed in the gothic splendor of the Peace Palace, commissioned in 1913 by philanthropist Andrew Carnegie in the hope it would become a "world court."

That role never materialized, and the Peace Palace has assumed a more humble role. The ICJ arbitrates on disputes between states. Important work, certainly, but the lack of any criminal prosecution, and the need for arbitration to be voluntary, means the court seldom hits the headlines.

Just such a fate may yet await the ICC. In years to come, it may find itself a historical curiosity along with the Peace Palace, viewed as a monument to something that was a good idea that never quite worked out.

AFP/Getty Images


State of Injustice

What the bizarre cases of Bo Xilai and Chen Guangcheng can tell us about China.

Since local party boss and rising star Bo Xilai's stunning ouster from the Chinese Communist Party in April for "suspected serious violations of discipline," some of the world's best China watchers have been given room in the mainstream press to compare Bo to other top Chinese officials. We've learned much about the "princelings" -- leading cadres whose status in the political pecking order is a function of their parents' allegiance to Mao -- and the collateral damage that could be done to reputations by family members.

But in the long run, the more telling comparison about the nature of power in China today may be between Bo Xilai and Chen Guangcheng, the blind legal activist who last week escaped house arrest in Shandong and made his way to Beijing, where he is reportedly seeking refuge in the U.S. Embassy. It isn't that Bo and Chen have similar agendas or found themselves in similar circumstances. It's that these two cases lay bare the extraordinary unpredictability inherent in authoritarian rule and the lengths to which people will go when they are utterly desperate.

Chen, blind since birth, began his journey through China's sometimes Kafka-esque politico-legal system in 2005. After unsuccessfully attempting to file a class-action lawsuit about abuses of the family-planning regime in Linyi City, he and his family members were subject to collective punishment and confined to their home for six months. In March 2006, authorities forcibly removed Chen from his home, telling the family nothing about his whereabouts or legal status for another three months. In June of that year, officials finally acknowledged Chen's detention, but threatened his lawyers and his family and initiated formal legal proceedings on ludicrous charges of damaging property and disrupting traffic. In August 2006, after legal proceedings that could be most charitably described as a kangaroo court, Chen was sentenced to four years and three months. But after he served his time and was released in September 2010, he and his family were again confined -- with no legal basis -- to their home.

Over the course of 2011, Chen, with the help of activists, released a video documenting the abuses to which he and his family were being subject by the dozens of guards who watched them around the clock. At the same time, growing numbers of concerned individuals and activists, as well as some courageous foreign journalists and foreign diplomats, attempted to visit Chen and his family; all were turned back by local thugs with varying degrees of violence. The alarming news kept coming: Chen's health was declining. His young daughter was prevented from attending school; after diplomatic intervention, local authorities "compromised" and allowed her to go -- accompanied by guards. Arguably most disturbing, Chen's young son, who was living elsewhere with other relatives, reportedly cut himself in order to be hospitalized, believing that his mother would finally be allowed to see him. She wasn't.

And so this year, the plan developed for Chen to break out of his and his family's surreal confinement. Last weekend, he slipped past his guards and made his way to Beijing, where he released a video calling on Chinese premier Wen Jiabao to investigate his situation, and pointing out what unnerves Chinese leaders more than just about anything else: that there is growing popular interest in his fate. Chen now appears to have sought sanctuary in the U.S. Embassy -- just days before the U.S.-China Strategic and Economic Dialogue meetings in Beijing -- and retributions are already being directed at those who helped him "escape."

Central government officials, when pressed about Chen's confinement, occasionally offered up variations on an extraordinary lie: He was free, having completed his sentence. He didn't want visitors, or was too poor to travel. At no point did they intervene or discipline those who held Chen. They were too busy with more important matters, such as the anticipated leadership change in late 2012.

Bo Xilai's star rose in part on the putative success of his similarly twisted interpretations of the law. During his tenure as mayor of Chongqing -- a city-state of 30 million people -- Bo cracked down relentlessly on some organized crime to generate local support. He tried to burnish his national political credentials with economic policies designed to reduce socioeconomic disparities and a neo-Maoist campaign that featured, among other things, schoolchildren singing Cultural Revolution-era "red" songs. Like many others jockeying for positions on the Politburo's Standing Committee -- the body, often consisting of nine members, that effectively runs the country -- he too was a "princeling." And along the way he too allowed the silencing of people like Chen. Bo's corruption drew the attention of veteran journalist Jiang Weiping and lawyer Li Zhuang; the former was sentenced in 2001 to eight years in jail for violating state secrets laws, while the latter was framed, tortured, and sentenced to 18 months in prison for defending a suspected crime syndicate boss.

But when the end came for Bo -- in the form of removal from his official position following the news that his wife, Gu Kailai, may have been complicit in the murder of a foreign businessman -- the circumstances were no more bound by law and due process than that which Chen and his family have endured for years.

Upon his ouster from the party on April 10, the state news agency Xinhua announced that Bo would be investigated for "serious discipline violations." This language suggests that Bo will be subject to the party's own internal discipline system, but it remains unclear whether he will also face criminal charges. He has disappeared from view, and it is equally unclear whether his family has information regarding his whereabouts or whether he has access to a lawyer. While it's hard to generate sympathy for someone who built his career on nakedly disregarding the law, the fact remains that he too is entitled to due process.

There are a few lessons one can draw from these episodes.

One is that politics in China is extraordinarily opaque. Last month's rising political star has now vanished into the party's maw, while the fate of the long-suffering legal activist has the potential to disrupt a major diplomatic summit between the United States and China. The more important lesson may be that politics in China remain highly unpredictable. While to some it may be reassuring to see Chen relatively free and Bo detained,  neither story will play out according to agreed-upon rules or procedures, or without abuses, often directed at third parties. Until such time as laws function predictably and free of political whims, one is left with the uneasy sense that few are safe from arbitrary treatment in China.

Other governments, particularly the United States, are scrambling to make sense of and respond to these riptides in China's domestic and international politics. Some will argue that for the United States to intervene in any aspect of Chen's or Bo's cases will jeopardize the bilateral relationship.

But this framing misses a few key points: Segments of Chinese society have had enough of officialdom's abusive, predatory behavior, and they see the prospect for change in Bo's fall and in Chen's persistent activism. At the end of the day, the fate of these men may not rest in U.S. hands. But there is real merit in foreign governments demonstrating unequivocally that their concern for relations with the government are matched by their concern for growing demands inside China for justice and the rule of law.