Enforcing International Criminal Law: Normative Strength, Procedural Weakness

 By Stephen Kozey

Although international criminal law (ICL) has its roots in the 1500s or earlier, the normative development of this body of law only really picked up within the past century or so. Even though some aspects of ICL remain uncertain, its recent development has been fairly swift and robust. Thus, ICL doctrines are fully capable of reasoned application today to hold individuals responsible for international crimes they commit, such as war crimes and gross violations of international human rights.

Unfortunately, as Jack Donnelly points out, it seems that the procedural mechanisms for enforcing ICL do not deserve such kudos. The two principal avenues for prosecuting alleged international criminals – international tribunals and domestic courts – are simply not up to the task. Their inadequacy is evidenced, for example, by the fact that U.N. Secretary General Ban Ki-moon still has to plead for protection of human rights and an end to mass atrocities.

International criminal tribunals are not effective mechanisms because they tend to be expensive and overburdened, and proceedings often take many years to start and many more years to conclude. The title of a recent Forbes article on the ICC says it all: “International Criminal Court: 12 Years, $1 Billion, 2 Convictions.”

Sure, the ICC is relatively young and its jurisdiction is not unlimited, but those facts don’t even come close to being able to justify only two convictions in 12 years. Ad hoc tribunals such as the ICTY and ICTR have been more effective than the ICC, addressing hundreds of cases each, but they too are expensive and drawn out. More importantly, their jurisdiction, unlike the ICC’s, is strictly limited to the Former Yugoslavia and Rwanda, respectively. Finally, though the effort should not be put down, the European Union has only recently decided to set up an international war crimes tribunal for atrocities that occurred in Kosovo over 15 years ago.

Domestic Courts don’t fair much better on the whole. There are certain countries, particularly E.U. members, with very robust domestic systems that can handle international criminal cases effectively. However, that is the exception rather than the rule. Many countries simply lack the necessary legislation. For example, human rights organizations recently released a joint declaration urging the Democratic Republic of Congo to adopt legislation that will enable prosecution of war crimes in domestic courts; at present, such prosecutions are impossible (though individuals can of course still be prosecuted for violations of domestic rather than international criminal law based on the same conduct).

In other instances, domestic courts cannot be trusted to administer justice fairly. Cadman and Poulsen recently published an article arguing that such a situation exists in Bangladesh with regard to its International Crimes Tribunal (don’t let the name fool you – it’s a domestic court).

It is a truly sad state of affairs. There is perfectly good doctrine and a multitude of opportunities to apply it (such as the ones mentioned in Amnesty International’s 2013 World Report), but the procedural mechanisms are just not adequate for robust and effective enforcement of ICL.