Return To Sender

Why Ukraine’s ousted president won’t be tried in The Hague.

For the last few days, Ukraine's parliament has been hurriedly wiping away the last vestiges of Viktor Yanukovych's presidency. Now many parliamentarians would like to ship Yanukovych himself off to The Hague for trial. On Tuesday, parliament voted to ask the International Criminal Court (ICC) to try the former president and two of his associates for the killing of several dozen protesters during recent protests and street violence. "If we don't take this decision, we will not move forward," one deputy argued.

There are plenty of reasons why the new government might like to see the former president before the ICC. An international investigation would bolster the claim, made insistently by Yanukovych's opponents, that the old regime was criminal, while simultaneously avoiding the messiness of a domestic trial. And if Yanukovych flees Ukraine -- or has already fled -- an ICC arrest warrant would drastically limit his travel options.

But while many in Kiev may be convinced that international justice is warranted, the ICC itself almost certainly will not agree.

At first glance, Ukraine would seem to have a decent chance of getting the ICC involved. The country may not be an ICC member, but the new government is within its rights to give the court jurisdiction. The ICC's founding document, the Rome Statute, grants all states the ability to give the court jurisdiction in certain cases, even without becoming full members. That provision has been used in the past by the Ivory Coast and Palestine. A formal request from Ukraine -- which it appears not to have issued yet -- would trigger what the ICC calls a "preliminary examination." During that phase, the ICC prosecutor's office would determine whether relevant crimes had been committed and mull over whether a full investigation is warranted.

But that's where Ukraine's bid would run into trouble. The ICC only has jurisdiction over a select set of crimes: war crimes, crimes against humanity, and genocide. The first and third categories are very likely excluded already, given the nature of Ukraine's crisis: War crimes can only occur when a state of armed conflict exists, and it's doubtful that the protests in Kiev crossed that threshold. Genocide, meanwhile, requires an effort to destroy, in whole or in part, a racial, religious, or ethnic group -- also a situation that was (thankfully) absent in Ukraine.

That leaves the category of crimes against humanity, which could apply in Ukraine. If the ICC prosecutor believes that Yanukovych and his associates ordered systematic attacks on civilians, the court might -- just might -- consider a full investigation.

But there are two other obstacles to an ICC case. First is the question of whether the regime's crimes crossed the court's "gravity" threshold. Put simply, the ICC is designed only to investigate the most serious crimes in the world. And even a bloody crackdown on protesters might not rise to that level. Several years ago, the court's judges split on whether the deaths of more than 1,000 people in Kenya in a terrible bout of post-election violence were grave enough to merit ICC attention. Ultimately, the court decided to take the Kenya case, but the disagreement suggests that the court's gravity threshold is much higher than Ukraine's toll.

The second complication is the court's doctrine of "complementarity," which provides that the court should only investigate when national courts are unable or unwilling to do so. With Ukraine's political situation in flux -- and as outrage about Yanukovych's opulent lifestyle mounts -- the Ukrainian public may insist on a domestic investigation and trial of its former leader. If the ICC prosecutor believes that the country is moving in that direction, the court will almost certainly keep its distance. Moreover, for all its problems, Ukraine boasts a judiciary more capable of managing a domestic trial than other countries the ICC has worked in.

In addition, the political context surrounding Ukraine would probably militate against a full ICC investigation. Russia would not look kindly on an international investigation of its favorite Ukrainian politician, and the ICC, up until now, has been hesitant to ruffle the feathers of major powers. For instance, it never opened a full investigation into the 2008 Russia-Georgia conflict, and it has not touched several situations where the United States has strong interests, including Iraq, Afghanistan, and Colombia.

That said, there is one political factor that might push the court toward a Ukraine investigation: geography. Many African states have harshly criticized the ICC for only investigating and indicting Africans. (Every case to date has come from the African continent.) A Ukraine investigation would finally allow the court to prove that it is capable of administering justice elsewhere.

Yet it is more than likely that concerns about perception won't compete with the other legal and political obstacles to a full investigation. In short, the path to justice for the victims of Ukraine's violence does not run through The Hague.



Get Real

Brazil's economic party ended well before the World Cup was set to begin. What went wrong? 

Less than four months from now, billions of people around the world will focus on Brazil as the World Cup kicks off in São Paulo. But some Brazilians are looking forward with as much trepidation as pride, and not just because of their soccer team's form in recent tournaments. Under the spotlight, their economy may be revealed as much less than meets the eye.

It's easy to beat up on Brazil these days. Its currency, the real, has lost more than 15 percent of its value in the past year, as has São Paulo's stock market, and preparations for the World Cup are not exactly on schedule. But just a few years ago, as the world reeled from economic downturns in Europe and the United States, Brazil was the darling of the financial markets. What happened?

In the years leading up to the financial crisis, Brazil had become an attractive option for investors seeking to balance their portfolios. Stock markets in Europe, the United States, and other established economies track each other so closely as to be almost identical. For example, the DAX index of the Frankfurt Stock Exchange had a correlation of 0.95 with the Standard and Poor's 500 index on a month-to-month basis between January 2005 and August 2008. By contrast, the correlation between Brazil's Bovespa stock market index and the S&P 500 was only 0.73. For investors who wanted to insure themselves against dips in the big markets, some of Brazil's stocks were a reasonable option.

Moreover, Brazil's economic growth had been accelerating, from 3.2 percent in 2005 to 4.0 percent in 2006 and 6.1 percent in 2007. Its export markets were geographically diverse, and its interest rates were relatively high. Together with Brazil's sheer size, these factors were more than enough to get the attention of harried investors looking for a safe haven other than the United States. Not that the global downturn had left Brazil unscathed -- the Bovespa lost almost half its value between June and November of 2008. But then the money started pouring in.

Rising demand pushed up Brazilian asset prices, and by December 2009 the self-fulfilling prophecy in the stock market was in full swing. The Bovespa rocketed to all-time highs, while the S&P 500 still had much ground left to recover. So much money was coming into Brazil in 2009 that the government decided to institute a 2 percent tax on short-term investments by foreigners. Within a year the government increased the rate twice, to 6 percent for some securities. But by then Brazil's growth was already slackening, and it would not recover as quickly as the stock market.

The economy's expansion had been driven by forces that were not necessarily sustainable. One was the global boom in commodity prices, which was among the first casualties of the global downturn. The other was ballooning consumer demand from rapid urbanization, higher incomes, and increased borrowing. For long-term growth, Brazil would need saving and investment as well as borrowing and spending. Its urbanization wave was also petering out, with 84 percent of people living in cities by 2009. Raising incomes simply by putting more labor next to capital would not be possible for much longer.

In retrospect, what happened next was inevitable. Brazil's economic growth peaked at 7.5 percent in 2010 and has failed to reach 3 percent in any year since. The tax on capital inflows stopped the stock market in its tracks; the Bovespa peaked just before the rate increases in October 2010 and then lost a third of its value. In June, following a year of stagnation in average incomes, the tax rate on capital inflows was finally cut back to zero.

It was too little, too late. Brazil's economic party ended well before the soccer party was set to begin. As Brazilians pick up the discarded beer glasses and silly hats, it's worth asking how the country used the gains from its brief heyday and how it will grow in the future.

The answer to the first question is far from flattering. Although Brazil's monetary authorities built up a mountain of foreign currency reserves thanks to booming exports, the depreciation of the real and a sell-off of assets held by foreigners could soon turn it into a molehill. Brazil also did little to fortify its infrastructure, moving from 78th place in the World Economic Forum's Global Competitiveness Report in 2008-2009 to 71st place in 2013-2014 -- hardly a significant change.

Corruption undoubtedly sapped some resources that could have strengthened the economy, too. Between 2008 and 2013, Brazil only managed to improve from 80th place to 72nd on Transparency International's Corruption Perceptions Index. This week yet another protest over graft in spending for the World Cup turned violent. And the Brazilian tax system's nightmarish complexity creates even more opportunities for malfeasance. Since 2006, there has been no change in the World Bank's estimate of the work needed to ensure a company's compliance: a mind-boggling 2,600 hours.

The money Brazil has invested in its next generation of workers offers some grounds for optimism about the long term. Brazil is building human capital, which is just as important as physical capital. But without improvements to its business climate and the rule of law, all that human capital could go to waste. The story of tomorrow's Brazilians may mirror that of their soccer team in the last two World Cups: a sad tale of unfulfilled potential.

Photo: NELSON ALMEIDA/AFP/Getty Images