International Criminal Justice*: A Global Dream Realized & Paralyzed

Master’s Thesis

Presented to

The Faculty of the Graduate School of Arts and Sciences Brandeis University Global Studies Program Dr. Chandler Rosenberger, Advisor

In Partial Fulfillment of the Requirements for the Degree

Master of Arts in Global Studies

by Zachary Philip Schwartz

May 2019

Copyright by

Zachary Philip Schwartz

© 2019

Acknowledgements

This thesis would not be possible without the support of my family, friends, professors, and wonderful Class of 2019 Global Studies cohort.

A special thank you to Professors Richard Gaskins, Paola Servino, Kerry Chase, Kristen Lucken, Gregory Freeze, and Chandler Rosenberger; this thesis is complete in large part due to their collective experience, knowledge, and support.

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ABSTRACT

International Criminal Justice*: A Global Dream Realized & Paralyzed

A thesis presented to the Graduate Program in Global Studies

Graduate School of Arts and Sciences Brandeis University Waltham, Massachusetts

By Zachary Philip Schwartz

The International Criminal Court (ICC) is designed to be a pivotal international judicial instrument to stem impunity. It has, though, been largely constrained in its ability to accomplish its goals. This study investigated the shortcomings of and complaints against the ICC and the wider field of international criminal justice through historical, data-driven, and theoretical lenses to understand the trends and international power dynamics underlying them. Analysis was separated into three distinct time periods (Eras I, II, and a prospective III), roughly spanning between the end of World II and the present day. Historical analysis of post-war discussions on the development of permanent instruments for international and of post-Cold

War occurrences in the field reveal a pervasive aversion of major powers to this concept. A data- driven analysis of modern Libya and Syria further evidences such aversion, particularly when the major powers’ interests are threatened. This thesis further argues a change in international power dynamics currently taking place, which further complicates the application of international criminal law. The conclusion points to pervasive trends throughout history and, barring further changes to the extant international order, a bleak future for countering impunity through instruments of international criminal justice.

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Table of Contents

I. Introductions ...... 1 A Dream of Gone Sour ...... 1 A Critical Need for Global Justice: The New World Order ...... 2 The International Criminal Court: Authority, Capacity, Performance ...... 5 Flaws, Fractures, and Shifts in the International Order and the ICC ...... 9 The Problem: An International Criminal Court Unable to Stop Impunity ...... 10 Critical Parameters ...... 13 Emerging Global Phenomena: An Opening Glance at Critical Parameters ...... 14 Methodology & Study Overview ...... 20 Source Base ...... 21 International Justice* ...... 22 II. (1946-1991) Contextualizing Modern International Criminal Justice: History & Trends ...... 24 The Quest to Keep Global War at Bay ...... 24 The Convention & an International Criminal Court ...... 26 A Code and a Court ...... 29 Aggression and Draft Codes ...... 31 Getting Past Aggression: An Insurmountable Task? ...... 33 Aggression and the Collapse of a Twentieth Century ICC ...... 34 The International Criminal Court Today – A Legacy ...... 39 III. (1991 to Present) International Criminal Justice in the Post-Soviet Era ...... 42 The Pre-ICC Emergence of International Criminal Justice ...... 42 A Real Permanent Tribunal Fails to Deliver Real Results ...... 46 The ICC as a Neo-Colonial Agent of the West ...... 48 The ICC as a Powerless Subject to Sovereign States and the UNSC ...... 52 IV. (Contemporary Global Concerns) Limitations of the Court in the Face of Sovereignty ...... 59 The Failure of International Criminal Law to Protect Everywhere ...... 60 Libya, Syria, and the International Criminal Court: Case Studies ...... 62 International Criminal Law v. Sovereignty: An Unwinnable Fight? ...... 68 The Triumph of Sovereignty in an Era of Nationalism & Revanchism ...... 75 V. Conclusions ...... 81 VI. Bibliography ...... 87

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List of Figures

Figure 1 ...... 64

Figure 2 ...... 65

Figure 3 ...... 66

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I. Introductions

A Dream of International Justice Gone Sour

“For man, when perfected, is the best of all animals, but, when separated from law and

justice, he is the worst of all…” – Aristotle, Politics, Book One, Part II

Throughout the course of human history, time and time again there have been gruesome atrocities and heinous abuses of basic human liberties that have gone unaddressed, ignored, and forgotten. There have been innumerable inquisitions, , pogroms, mass exiles, enslavements, and more that were simply met with no real justice. A single word can describe this phenomenon: impunity. The struggle against impunity had for most of human history been a losing fight—that is until a dream of international justice was born. The twentieth century was nothing short of a watershed for that dream, stemming from the sheer carnage of two of the bloodiest global conflicts in history. These world featured some of the most sinister plots to commit unthinkable atrocities against innocent people imaginable. In their aftermath, the international community, led by the alliance of states ultimately victorious in the second , was finally able to establish a functional international order that would strive to keep the and later jump-start the dream of international justice.

That jump-start came in post-war international criminal tribunals designed to bring to justice members of Axis powers who were believed to have had a role in wartime atrocities.

These tribunals were prototypical for the international community and would not be given

1 over any possible violations on the Allied side1 (including the firebombing of

Dresden and the nuclear bombings of Hiroshima and Nagasaki), but they presented a groundbreaking alteration in how war were treated. Further, post-founding discussions of the gave the international community several conventions against abuses of human liberties and generally regarding the rules of war. One of those conventions, known best by its shorthand name “the of 1948,” hinted at a future international criminal jurisdiction that would be able to try acts of genocide as defined by the convention,2 thereafter triggering a series of up and down discussions on the subject into the 1950s. Thanks to the existence of the genocide convention, the dream of international justice—to stop impunity— was finally moving down the road to realization. Several roadblocks, including the issue of what to make of “aggression” as an international , would put a halt to discussions on the subject of an international criminal jurisdiction (and a court to try violations within it) in 1957,3 putting the dream on ice until the major issues plaguing the discussions—including the — could be sorted out. Several more decades passed before the dream could be actualized, but everything changed as the 1990s began.

A Critical Need for Global Justice: The New World Order

The early 1990s marked a seismic shift in the international order. The collapsed in 1991, and with it its hold on its many satellite states. This cemented the United

States as the clear global hegemon in international relations. The process of the Soviet Union’s collapse and rapid diminishing of communist appeal also triggered the 1989 fall of the Berlin

1 J. P. Cerone, “Dynamic Equilibrium: The Evolution of US Attitudes toward International Criminal Courts and Tribunals,” European Journal of International Law 18, no. 2 (2007): 284, https://doi.org/10.1093/ejil/chm017. 2 United Nations, “Convention on the Prevention and Punishment of the Crime of Genocide” (United Nations, December 9, 1948): Article VI, https://treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021- english.pdf. 3 Benjamin B. Ferencz, An International Criminal Court, a Step Toward World Peace: A Documentary History and Analysis, vol. 2, 2 vols. (London: Oceana Publications, 1980): 52.

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Wall and reunification of Germany. It fostered the creation of an atmosphere that would allow

Czechoslovakia to amicably split and for western ideas of popular sovereignty to take root. Not all the consequences of this seismic shift were, however, peaceful.

Also coinciding with communism’s end in Russia in the early 1990s was the collapse of

Yugoslavia, where republic after republic broke off from the center of power in Serbian Belgrade in revolution and civil war, in pursuit of their own independence from the federation’s waning grip. As the situation in what would become the former Yugoslavia deteriorated, human rights abuses occurred, including acts of genocide most notable at Srebrenica during the .4

These wars and associated atrocities would continue to occur throughout the 1990s, leading the once vast multi-republic federal state of Yugoslavia to shrivel into little more than and

Montenegro.

Indeed, the events of the 1990s indicate a growing need for international justice. The change in the international order may have had, for the time being, simplified the global power structure, but at the same time it created significant complications in several states, particularly among those formerly aligned with the Soviet Union and with communism. Without the counteracting effect that the U.S. and the U.S.S.R. had on each other, the U.S. was freer to exercise its power abroad through unilateral or sanctioned international military ventures. And that it did; throughout the decade the United States engaged in a number of such ventures, notably in the Middle East and in the to-be-former Yugoslavia, in response to acts that either threatened certain interests or, more pertinent to international justice, threatened human rights.

4 International Criminal Tribunal for the former Yugoslavia, “Judgement Summary: Appeal Judgement Summary for Popović et Al.” (International Criminal Tribunal for the former Yugoslavia (ICTY), January 30, 2015), http://www.icty.org/x/cases/popovic/acjug/en/150130_summary.pdf.

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These interventions, though, were not always met with approval. Although the 1999

NATO intervention in Kosovo, for example, enjoyed, as Professor David Wippman puts it,

“broad support in the international community,” it was nevertheless at times subject to condemnation by states like Namibia, Russia, and China.5 On the American domestic front, public support for such interventions also wavered; for example, Gallup reported that between late-1995 and mid-1997, public support for the deployment of American troops in Bosnia only peaked at 42% approval, dipping as low as 36%.6 To make matters more complicated, there have been conclusions in the literature that indicate that interventions on humanitarian grounds may cause more harm than good. In 2012, Professor Dursun Peksen conducted an empirical study on the effects of certain types of humanitarian interventions and concluded saying that “the empirical evidence offers robust support for the assertion that supportive and neutral military interventions deteriorate the level of respect for physical integrity rights,” while “hostile interventions […] increase the probability of political imprisonment….”7 Situations with human rights implications continued to present themselves in the new unipolar order of the 1990s, but they were at times met with ambivalence both internationally and domestically (in the United

States), and there is evidence that such hard power was unhelpful in actually solving the crises.

This is why international justice through other means became critical.

When the dust began to settle in Yugoslavia, interventions ensued, and atrocities were revealed, the international community took international judicial action for the first time since the end of World War II, vowing to not let any go unpunished. Suddenly, international

5 David Wippman, “Kosovo and the Limits of International Law,” Fordham International Law Journal 25, no. 1 (2001): 134. 6 Gallup Inc., “Majority Of Americans Want U. S. Troops Out Of Bosnia,” Public Opinion, Gallup.com, n.d., https://news.gallup.com/poll/4363/Majority-Americans-Want-Troops-Bosnia.aspx. 7 Dursun Peksen, “Does Foreign Military Intervention Help Human Rights?,” Political Research Quarterly 65, no. 3 (2012): 567, https://doi.org/10.1177/1065912911417831.

4 justice through judicial means became a tangible thing: International Criminal Tribunal for the

Former Yugoslavia (ICTY) was born. The dream was suddenly being actualized. The ICTY would continue investigating and prosecuting alleged abuses under its ad hoc jurisdiction for nearly three decades. The ICTY was followed shortly thereafter by the International Criminal

Tribunal for Rwanda (ICTR), which was constituted to prosecute war crimes, , and crimes of genocide that had taken place in the Spring of 1994 in Rwanda.

Just four years after the Rwandan Genocide, the dream was more fully actualized; after decades of discussion, indecision, and resignation to the subject, a permanent standing court designed to prosecute those same international crimes was finally set to become a reality. The

1998 Rome Statute was a landmark international agreement that set forth the guidelines and for the new International Criminal Court (ICC), which would finally come into being after the Statute attained the requisite number of ratifiers in 2002.

The International Criminal Court: Authority, Capacity, Performance

When the International Criminal Court was first established, there was great optimism for the project. Mark Ellis, in a 2002 piece to the Florida Journal of International Law, wrote of the effects that the Rome Statute had envisioned in 1998 that were set to be actualized: among them the mandating of states parties to augment their own “national capacity” to litigate crimes defined by that statute.8 Ellis notes in his conclusions that “the ICC’s impact for domestic law and national capacity building will be significant and far-reaching,” in a way that will allow for

“stronger national criminal justice systems that conform to international legal standards.”9

Ultimately, the viewpoint that Ellis took in 2002 at the establishment of the Court was optimistic

8 Mark S. Ellis, “The International Criminal Court and Its Implication for Domestic Law and National Capacity Building,” Florida Journal of International Law 15 (2003 2002): 222-235. 9 Ibid., 241-242.

5 about the ability for the institution to make commonplace laws outlawing and national procedures for prosecuting international crimes in a way that would stem impunity and, ideally, mitigate any need for such an institution.

Ellis argues that the notions of complementarity and fostering the development of competent domestic institutions would render the International Criminal Court unnecessary outside of dire circumstances. Indeed, these notions intermingle and warrant further discussion.

The ICC predicates whether to act or not on situations it may well have nominal jurisdiction over based on those intermingled notions. That predication is explicitly outlined in Article 17 of its foundational Rome Statute:

“Article 17(1): Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution.”10 It is in situations where the Court has nominal jurisdiction and the conditions referred to in

Article 17 are not met when it can act. This encapsulates the notion of complementarity for the

Court. When national jurisdictions are unable or unwilling to take responsibility, that is when the

ICC, an international judicial institution of complementary nature, can assert its jurisdiction.

The ICC has jurisdiction over certain international crimes in certain areas, all outlined by the Rome Statute. Article 5 notes the crimes specifically under ICC jurisdiction: crimes against humanity, of genocide, of aggression, and war crimes.11 Articles 6 through 9 delve into the meaning of those crimes in detail.12 Territorial jurisdiction is defined by Article 12, which allows for the International Criminal Court to operate in situations involving the territory of states

10 International Criminal Court, “The Rome Statute of the International Criminal Court” (International Criminal Court, 2011): Article 17(1)(a), https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7- 9CDC7CF02886/283503/RomeStatutEng1.pdf. 11 Ibid., Article 5. 12 Ibid., Articles 6-9.

6 parties or involving nationals of a state party.13 In those circumstances alone, when it is deemed appropriate for the Court to supersede national jurisdictions, Article 15 allows the ICC’s

Prosecutor to open proprio motu investigations (initiated on the discretionary powers of the

Prosecutor alone) of alleged international crimes defined in the Statute on territories or by individuals as defined in the Statute.14 The International Criminal Court is unable to investigate or prosecute any alleged commission of the delineated international laws if it does not have full jurisdiction or if the national jurisdiction in a state party is able and willing to investigate and prosecute—with one caveat. States can refer situations taking place on their own soil to the Court and the United Nations Security Council can issue Chapter VII referrals for situations not normally under jurisdiction to the Court.15

These restrictions were put in place minding a strong and pervasive emphasis on the sovereignty of states that has been an integral part of the current international order since its inception. According to Ellis, they keep the court from “interfer[ing] with the judicial matters that naturally fall within the jurisdiction of states and are handled with principles of due process,” thereby making it “limited in exercising jurisdiction without the consent of a sovereign government that could otherwise exercise jurisdiction on its own.”16 The Rome Statute explicitly states that the Court’s duty is to act only when absolutely necessary through these limitations, but at the same time it allows for the combatting of impunity if those conditions are not met. Ellis’ viewpoint was, similar to many others at the establishment of the Court in 2002, overly positive

13 Ibid., Article 12. 14 Ibid., Article 15. 15 Ibid., Article 13. 16 Ellis, “The International Criminal Court and Its Implication for Domestic Law and National Capacity Building”: 221-222.

7 given the how the institution has been unable to meet its goals even in situations within its jurisdiction.

Schools of thought regarding the International Criminal Court have changed over the years toward more cynical viewpoints that cast doubt on the realization of the dream. Professor

Kirsten Ainley points the finger directly at the United Nations Security Council—the entity responsible for referring situations outside of the Court’s jurisdiction—for not being above national politics.17 In fact, she claims that “the UNSC is usually seen as the main culprit for the underperformance of […] the ICC.”18 As the UNSC can have the final say on whether to refer a situation to the Court, any dissenting opinion among the P-5 opens the door to impunity, thus pushing the dream farther away from realization. Ainley notes, even when it does act, that

“western in Iraq and elsewhere has also made the ICC a source of suspicion,” noting that prospective referrals “would only have added fuel to the claims that the court is a tool of western interests.”19 Thus the Court is between a rock and a hard place when it comes to the

Chapter VII powers of the UNSC, on one end powerless to act without the blessing of the

Council and on the other doomed to derision with said blessing.

Other scholars take an even more cynical view of the Court: as the mechanism through which referrers (a state or the UNSC) can take political action. Professor Philipp Kastner offers a case study of referred cases to the ICC—pertaining to Northern and Darfur—that he maintains indicate an “instrumentalization” and “politicization” of the ICC.20 He writes that

Uganda’s “self-referral” of their situation (conflict with the Lord’s Resistance Army [LRA]) was

17 Kirsten Ainley, “The Responsibility to Protect and the International Criminal Court: Counteracting the Crisis,” International Affairs 91, no. 1 (2015): 39, https://doi.org/10.1111/1468-2346.12185. 18 Ibid. 19 Ibid., 42. 20 Philipp Kastner, “Armed Conflicts and Referrals to the International Criminal Court: From Measuring Impact to Emerging Legal Obligations,” Journal of International Criminal Justice 12 (2014): 488, https://doi.org/10.1093/jicj/mqu036.

8 in actuality the employment of the Court as a “strategic tool […] which kept as many alternatives as possible in its negotiation toolbox….

”21 Of the UNSC referral of the situation in Sudan (Darfur), Kastner notes that by all indications,

“the Security Council regarded the ICC as a politically convenient and financially inexpensive tool […] but has not had a genuine interest in holding accountable those who are most responsible for the worst crimes committed in Darfur.”22 This viewpoint of the Court of parties making referrals on blatantly political motives compounds other criticisms, such as that it is paralyzed by the UNSC and that it is simply a tool of western imperialism. Further, scholars such as Kastner cast doubt on the ability of the ICC to work toward real change in conflict zones, thereby rendering it unable to stop impunity and making the dream of international criminal justice seem more like a daydream. With so much smoke emanating from the International

Criminal Court, there is undoubtedly a fire indicating real flaws and fractures in the institution.

Flaws, Fractures, and Shifts in the International Order and the ICC

The international community was well on the way to erasing impunity for those who are involved in the perpetration of human rights catastrophes, or so it seemed. The flaws that the literature discusses have been pervasive and persistent, and do not seem to be letting up. The dream of international justice is faltering.

The ad hoc tribunals for the former Yugoslavia and Rwanda were flawed, as is the ICC.

International criminal justice as currently constituted is inherently flawed, thanks in part to the restraints on international institutions that have been in place since the founding of the United

Nations in 1948. Flawed as these institutions have been, they have helped in stemming abuses to an extent. Initially, situations that fell under the jurisdiction of these institutions were

21 Ibid., 474. 22 Ibid., 475.

9 investigated and prosecuted. Justice was served—to the extent possible—to perpetrators of atrocities in the former Yugoslavia. The same was done—to the extent possible—to perpetrators of atrocities in Rwanda. The same continues to be done for some of the situations under the jurisdiction of the ICC, but it has by no means been even.

The dream of international justice requires impunity to be put to an end. The road the led the international community to the actualization of that dream was fraught with delay and debilitating disagreement, but it was passable, and it facilitated the ad hoc tribunals as well as the

Rome Statute. The ICTY and ICTR, as flawed as they were, managed to bring scores of international criminals to justice. The hope was that the International Criminal Court would go farther. Yet, the flawed nature of the ICC indicates that while the dream has been actualized, it has not been fully realized—and it cannot be until it can effectively and demonstrably stem impunity. Despite the presence of a permanent standing international institution with the ability to prosecute alleged war crimes, crimes against humanity, and crimes of genocide, these acts continue to occur. Impunity has yet to be eradicated. There are several lines of reasoning as to why it remains, as discussed above, but there are still yet more emerging factors that may be serving to further complicate that mission.

This thesis is about the dream of international justice, how it began, and how it developed to the present day. It considers the problems plaguing the field, including the flaws that have historically precluded it from fully accomplishing its goals as well as the emerging issues that currently threaten or may in the future threaten the ability to realize that dream. In order to do so, this thesis must first consider the problem.

The Problem: An International Criminal Court Unable to Stop Impunity

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The International Criminal Court’s mission is to stop impunity; it is in fact listed in the preamble of the Rome Statute.23 After 17 of operations, though, it seems as if the Court has met more obstacles toward ending impunity than it has actually made progress toward achieving that end. A number of those obstacles have already been mentioned, including those issues involving the UNSC. One includes the ability for some states to get away from cooperation (thereby preserving impunity), while another still involves negative perceptions of the Court’s activities— mainly as a neocolonial agent.

That is the complaint of the African Union (AU), which in 2017 advocated in a non- binding resolution that its members withdraw from the Court24 after noticing that it only seems to prosecute Africans. To a certain extent, the AU’s concerns are legitimate; the ICC spends an inordinate amount of resources prosecuting atrocities in Africa. This, though, is a symptom of a larger illness that plagues the Court.

That illness, of course, is the relative inability of the ICC to operate outside of such areas.

Of the permanent five (P-5) members of the United Nations Security Council (UNSC), only the

United Kingdom and France are parties to the Rome Statute.25 The United States, China, and

Russia are all not members of the Court, and all five of these states have the resources to rebuff any advances the ICC or the international community may take to punish them. Worse, those more powerful states can counter those attempts using sanctions, severing of diplomatic channels, etc. without incurring great penalties unto themselves. For example, according to The

Washington Post, Congress passed the “American Service-Members Protection Act” shortly

23 International Criminal Court, “Rome Statute”: Preamble. 24 BBC News, “African Union Backs Mass from ICC,” BBC, February 1, 2017, https://www.bbc.com/news/world-africa-38826073. 25 International Criminal Court, “The States Parties to the Rome Statute,” International Criminal Court, n.d., https://asp.icc- cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.

11 after the ICC came into being, which has been dubbed “The Hague Act” thanks to provisions mandating the U.S. government do anything and everything in its power to free

Americans in the Court’s custody.26 John Bolton, the American Advisor for

President Trump and UN Ambassador under President Bush, is no stranger to the Court either, having been involved in the United States’ withdrawal from the organization27 and even in

September of 2018, according to The Guardian, threatening to “impose sanctions” and even to

“criminally prosecute ICC officials […] if the court formally proceeded with opening an investigation into alleged war crimes committed by US military and intelligence during the war in Afghanistan or pursued any investigation into Israel or other US allies.”28 Bolton was referring to an ongoing preliminary examination ordered by the Court’s prosecutor, Fatou

Bensouda, of potential war crimes committed in Afghanistan during the war, including

Americans’ alleged roles in them.29

Indeed, the Court is plagued by restrictions and rhetoric on multiple fronts. Such are some of the more negative aspects of an international criminal justice system that otherwise has shown positive signs. Nevertheless, in addition to these negative restraints on the Court, there are other factors that have of recently complicated the delivering of justice on an international scale.

The addition of these factors has severely slowed the effective administration of such justice with extremely limited jurisdiction, rendering it unable to address situations with severe human rights implications, such as the Syrian Civil War—which has killed and displaced tens of millions and

26 Mark Kersten, “Did the Senate Just Open the U.S. up to ICC Prosecution?,” Washington Post, December 10, 2014, https://www.washingtonpost.com/news/monkey-cage/wp/2014/12/10/did-the-senate-just-open-the-u-s-up-to- icc-prosecution/. 27 Ibid. 28 Owen Bowcott, Oliver Holmes, and Erin Durkin, “John Bolton Threatens War Crimes Court with Sanctions in Virulent Attack,” The Guardian, September 10, 2018, sec. US foreign policy, https://www.theguardian.com/us- news/2018/sep/10/john-bolton-castigate-icc-washington-speech. 29 International Criminal Court, “Afghanistan,” International Criminal Court, n.d., https://www.icc- cpi.int/afghanistan.

12 still has no end in sight. This is a major problem for international criminal justice and, if trends continue, the field will not be able to rid the world of impunity.

Critical Parameters

This thesis will be broken down into five major chapters, to be discussed later in this introduction. In addition to the two cases discussed in Chapter IV, this thesis will work within a few parameters. Outside of the historical analysis of international criminal justice discussed in

Chapter II, this thesis will keep the analytical discussion in a tight timeframe, from the fall of the

Soviet Union in the early 1990s to the present-day, with particular emphasis on the aforementioned cases and the International Criminal Court. The historical analysis will encompass a period to be labeled “Era I,” which will include events from 1946 to 1991. The following timeframe will encompass a period to be labeled “Era II,” which will include events from 1991 to the present. It will lastly also discuss a new period, “Era III,” in which it is argued that the defining power dynamics of the previous eras are changing so significantly that the future of international criminal justice may be in doubt.

This thesis will also devote significant focus to emerging factors as a backdrop for the increasingly difficult effective enforcement of human rights norms through international criminal law in Era III. These factors include (but are not limited to) the following:

1. Growing global trends in populism and nationalism; this factor has become incredibly

salient over the last few years, as evidenced by the rise and even election of several

populist and nationalist politicians and groups in places such as30 the United Kingdom,

the Netherlands, France, Hungary, Poland, Russia, , Italy, Brazil, and The United

States of America.

30 This list is by no means comprehensive. It seeks only to convey the widespread nature of populist and nationalist phenomena in recent years.

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2. Migratory trends; this factor has also become quite salient in recent years, and it has been

a contributing factor (as xenophobia) for some of the populist and nationalist phenomena

discussed in the preceding factor.

3. Flaws in the United Nations Security Council; this factor is an issue as old as the United

Nations itself, having to do with the ability of any one of the P-5 states to veto any kind

of action at the UNSC.

4. The changing international order; this factor becomes increasingly important with each

passing day, as China continues its ascent toward the status of global superpower and as

Russia continues its resurgence as a major player on the international stage following its

receding from it in the 1990s. Their waxing influence, their power at the UNSC, and the

waning American domination of the international order combined with preceding factors

is indicative of a new period of international power dynamics in which international

criminal justice may be imperiled.

Emerging Global Phenomena: An Opening Glance at Critical Parameters

One of the critical factors that may be exacerbating this issue may be an increasingly globaskeptic international environment that has seen a rise in populism and nationalism in recent years. Given that this situation is so new and so current that new developments in global nationalism are occurring by the day, there really is no clear answer to this question. For some concrete initial examples, it is worth looking no further than to the United States under the self- declared nationalist31 President Trump.

Editor Robert Jervis’ “The Trump Presidency and International Politics in the Twenty-

First Century” does a good job in discussing how a more nationalist-leaning administration

31 Quint Forgey, “Trump: ‘I’m a Nationalist,’” POLITICO, October 22, 2018, https://www.politico.com/story/2018/10/22/trump-nationalist-926745.

14 conducts itself domestically and internationally. Samuel Moyn, a contributor, characterizes what recognition of human rights can realistically do, which is—in his belief—at most to “stigmatize, especially when it comes to international enforcement.”32 Moyn makes this assertion in relation to human rights in the United States today, but his assertion does have merit; those that respect human rights usually condemn violations. It is important to note how other governments may follow an apathetic United States into such a fray; according to Politico, in November of 2018,

President Trump suggested that the U.S. military may hypothetically retaliate against migrants throwing rocks, as they were to be treated as if they were wielding firearms.33 The Nigerian

Army followed suit one day later, as The New York Times reported, firing into a crowd of protestors pelting the military with rocks, killing some, and then subsequently posting a video clip of Trump’s very remarks on treating rock-throwers as armed combatants to justify their response.34

International respect for human rights, should an influential country turn inward, can quickly evaporate. As one can see from the Nigerian Army’s response to President Trump’s questionable remarks, disregard for human rights will catch on—especially when the state bearing the moniker of “leader of the free world” is perceived to approve. The more ambivalent position on human rights that the current administration is taking certainly does not contribute to an atmosphere that respects the notions and ideals of international humanitarian law. Obviously, if treating rock-throwing migrants or protestors as armed combatants is official policy that is, at the very least, perceived to be supported by the United States, then leaders that employ those

32 Samuel Moyn, “Donald Trump and the Irrelevance of Human Rights,” in The Trump Presidency and International Politics in the Twenty-First Century, ed. Robert Jervis et al. (Cambridge University Press, 2018): 338. 33 Ted Hesson, Rebecca Morin, and Rew Restuccia, “‘Consider It a Rifle’: Trump Says Migrants Throwing Rocks Will Be Treated as Armed,” POLITICO, November 1, 2018, https://politi.co/2EVpY5r. 34 Dionne Searcey and Emmanuel Akinwotu, “Nigerian Army Uses Trump’s Words to Justify Fatal Shooting of Rock-Throwing Protesters,” The New York Times, November 2, 2018, sec. World, https://www.nytimes.com/2018/11/02/world/africa/nigeria-trump-rocks.html.

15 kinds of tactics would be less likely to fear the consequences of a united international order in support of human rights. Of course, Trump and his administration are not the only examples of nationalism’s rise in today’s international order.

Some of the scholarship also puts significant emphasis on Brexit as a benchmark in the nationalist movements gripping the international community. It is also worth noting the effect that the migration wave of recent years has had, as a factor in this study. An article in the Texas

International Law Journal titled “Is Nationalism the Most Serious Challenge to Human Rights?

Warnings from BREXIT and Lessons from History” argues the importance of Brexit in the broader understanding of nationalism within Europe and in the EU. Among the reasons the author, Professor Lauren Fielder, gives for the nationalist fervor that culminated in the Brexit vote include fears “[of] loss of sovereignty,” “that Eastern Europeans would deprive Britons of jobs by migrating from countries with lower wages,” and “migration,” specifically “by Turks.”35

As has been made clear by proponents of Brexit like Nigel Farage, the goal was to re-assert

British sovereignty in response to perceived threats to it, namely from abroad. Of course, the rise of nationalism is fueled by fears derived from the ongoing migration crisis. As migration continues to feed the nationalism (with little end in sight, as future catastrophes36 that will spur waves of migrants are certain to happen eventually), it is worth mentioning the consequences of both.

The third factor that could be serving to make the administration of international criminal justice more difficult, namely the flaws in the UNSC, stems from the United Nations’ complicated founding. The UN places particular emphasis on the sovereignty of states; in fact,

35 Lauren Fielder, “Is Nationalism the Most Serious Challenge to Human Rights? Warnings from BREXIT and Lessons from History,” Texas International Law Journal; Austin 53, no. 2 (Spring 2018): 213. 36 Future catastrophes both related to civil strife, interstate warfare, and climate change.

16 the charter is predicated on it. There is no member of the United Nations that is not a sovereign state—consider Articles 3 and 4 of the charter:

“Article 3: The original Members of the United Nations shall be the states which, having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by United Nations of January 1, 1942, sign the present charter and ratify it in accordance with Article 110.”37 “Article 4: (1) Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. (2) The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”38 On three different occasions in these two articles, the Charter unequivocally defines possible members as “states”—the basic definition for an independent country as an entity in international relations. It is the emphasis on states that limits the United Nations; the organization is not a world government and it does not have far-reaching powers precisely because of how little power it was delegated and how much power the member states—particularly the P-5—enjoy in the organization.

Recall how any one of the P-5 states (United Kingdom, France, China, Russia, United

States) have veto power over resolutions brought before the UNSC, the organ of the organization with the most powers (if there are no vetoes invoked and a majority vote carries the resolution).

Under Chapter VII of the Charter, the UNSC can use its powers to, in theory, maintain international peace and security:

“Article 39: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”39

37 United Nations, “Charter of the United Nations and Statute of the of Justice” (1945): Article 3, https://treaties.un.org/doc/publication/ctc/uncharter.pdf. 38 Ibid., Article 4. 39 Ibid., Article 39.

17

Over the years, invocations of Chapter VII40 under these principles have been uneven, but a general understanding of the principles the section set forth dictates that the UNSC would need to sign off on sanctioned military interventions, the creation of international legal institutions, etc. Indeed, UNSC resolutions under Chapter VII authorized the creation of the ICTY,41 ICTR,42 and even the extra-jurisdictional referral of the Libyan situation to the International Criminal

Court. 43 The UNSC is, therefore, instrumental in the administration of international criminal justice as the only entity that can establish ad hoc international tribunals like the ICTY and ICTR and the only entity that can give jurisdiction to the ICC—an institution at times severely lacking in that field—over situations of grave concern. Just as easily as the UNSC can invoke its Chapter

VII powers, though, so too can it be gridlocked by the ability of any one of the P-5, states that can differ widely on an ideological basis, to veto any overture toward international criminal justice.

This thesis will assert that the power dynamics of the international order are shifting once again, spurring an Era III. The ever-salient threat of fragile states collapsing remains so, threatening to unleash widespread carnage at a moment’s notice; for recent examples look no further than continued strife in Africa and to the post-Arab Spring Middle East. With the threat of fragile states collapsing and states currently struggling with terrorism, hardship, war, etc., humanitarian catastrophes are both abound and threaten to grow further. While humanitarian catastrophes characteristic of the past continue to occur, global power dynamics continue to change. A renascent Russian Federation has of recent reasserted itself in the international

40 Nota Bene: Chapter VII of the Charter is not totally defined by the language of Article 39; that article provides a nutshell explanation of its powers, which are completely enumerated from Articles 39 to 51. 41 United Nations Security Council, “United Nations Security Council Resolution 827 (1993) [S/RES/827]” (1993). 42 United Nations Security Council, “United Nations Security Council Resolution 955 (1994) [S/RES/955]” (1994). 43 United Nations Security Council, “United Nations Security Council Resolution 1970 (2011) [S/RES/1970]” (2011).

18 community, as has China, which is well on the way to being (if not already) a significant global power. In a 2008 piece in Foreign Affairs, John Ikenberry noted that “the size of [China’s] economy has quadrupled since the launch of market reforms in the late 1970s,” while also increasing its military expenditures “at an inflation-adjusted rate of over 18 percent a year.”44

Thus, Ikenberry continues, “China is emerging as both a military and an economic rival – heralding a profound shift in the distribution of global power.”45 China’s rise is especially important because of its stances on international relations, especially as it pertains to the UNSC.

As one of the five permanent members of the UNSC, China wields exceptional say in what is and what is not passed through it. Recall how China was among a handful of states to condemn intervention in Kosovo46—it did so at least in part because of a non-interventionist theory on international relations that it has taken. Andrew Nathan and Andrew Scobell note in a

2012 piece to Foreign Affairs that “Chinese analysts see their country as heir to an agrarian, eastern strategic tradition that is pacifistic, defense-minded, nonexpansionist, and ethical” in contrast to a more outwardly and militarily-minded western view.47 As China continues its rise as a global superpower, it will certainly have more ability to impart that inwardly-minded viewpoint, especially considering its place as a P-5 member of the UNSC that has already acted on that principle before. As the international order becomes less unipolar and the United States’ hold on global power wanes in favor of a multipolar model, international criminal justice will need to adapt with it or else continue to grapple with its flaws and perhaps even fade into obscurity.

44 G John Ikenberry, “The Rise of China and the Future of the West: Can the Liberal System Survive?,” Foreign Affairs, February 2008: 2. 45 Ibid. 46 Wippman, “Kosovo and the Limits of International Law”: 134. 47 Andrew J. Nathan and Andrew Scobell, “How China Sees America: The Sum of Beijing’s Fears,” Foreign Affairs, October 2012: 3.

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Methodology & Study Overview

This study seeks to flesh out those factors as additional problems plaguing international criminal justice. It will do so through a multi-dimensional analysis of all aspects related therein.

First, Chapter II will contextualize modern international justice in Era I (1946-1991). It will analyze its history through the central idea of permanent international institutions of legal character to administer it as well as the field’s relationship with the international community to this point. This chapter will be grounded in literature review and analysis and will deliver sufficient background to set the stage for discussion on the research parameters discussed throughout this methodology.

Second, Chapter III will focus on the application of international criminal justice following the collapse of the Soviet Union, in Era II (1991-Present). It will discuss the modern precedents for international criminal justice as well as the two most major concerns for the

International Criminal Court today. Those concerns revolve around the pressing issues of sovereignty and how some states exert it to make themselves immune from the Court’s at-times spotty jurisdiction. This chapter will present a background for modern complaints against the

Court, which will be further juxtaposed to the case studies and further complicating factors in

Chapter IV.

Chapter IV will present findings from a more data-driven analysis of states of interest to the field of international criminal justice, particularly to the ICC. Those cases shall be henceforth referred to as the “Libyan case” and the “Syrian case.” The Libyan case refers to the UNSC- referred investigation and prosecution of war crimes allegedly committed around the time of the

2011 Libyan Civil War, while the Syrian case refers to the ongoing crisis in Syria that has failed to reach the jurisdiction of the ICC, although there exists compelling evidence for action. The

20 comparative case study analysis will sort through relevant facts and trends in both conflicts in order to establish a baseline for international legal intervention in Syria derived from realities from Libya at the time of its own intervention. These cases are important to scrutinize because of their similarities and similar circumstances surrounding the events that would lead to UNSC referral talk, and they reveal some of the important changing dynamics indicative of a change to an Era III. Discussing them at length in case study format will unearth key disparities and outliers that can explain why it is the international community decided to act in one case but not in the other, and the role of Russia and China in those decisions. Chapter IV will further discuss the implications of changing power dynamics in the international order and their implications for the future application of international criminal justice.

Chapter V will deliver the study’s conclusions overall of its findings. It will discuss the broader significance of the findings as well as how to move forward in further understanding the issues described throughout. While it will not prescribe any alterations in policy, it will discuss what the implications are if current trajectories are followed through to conclusion. This chapter will be followed by the study’s bibliography.

Source Base

This thesis will employ the use of a number of different sources for its case studies and analyses. Chapter II features mostly primary source documentation (UN documentation, documents from the Sixth Committee, from American administrations, etc.) as well as scholarly literature review. Primary source documentation is especially useful in this chapter due to its more historical analysis-minded nature; this source type delivers an unadulterated view of what policy intentions were and help to set the stage for the secondary material. That material is scholarly literature, which puts the primary sources into context and helps to elucidate key points

21 that an untrained eye may miss. As Chapters III and IV deal with case studies and analysis, they will employ more secondary material as well as journalistic material (from leading news sources like The New York Times and The Guardian. The journalistic material is helpful in these chapters for establishing a line of events that are assumed in the secondary literature. As the case studies will also feature data-driven analysis, databases (like those belonging to the World Bank, the

IMF, the IOM, etc.) will be employed to deliver facts that will help move them along. Also among the sources to be employed will be legal documentation, primarily from the International

Criminal Court’s website, which will help the thesis overall qualify the overarching discussion with implications for the Court itself.

International Justice*

This thesis will make the following arguments:

A. The dream of international criminal justice, nearly a century in the making, has gotten

lost, and a change of course may be required to realize it.

B. The history of international criminal justice, which dates to the aftermath of the two

world wars, describes the difficulties the international community struggled with and

contains implications that have affected the modern-day system of international criminal

justice.

C. The cases of Libya and Syria, both subjects to discussions on referral to the ICC by the

UNSC, indicate damning realities about the inherently politicized nature of Chapter VII

referrals, especially as they pertain to the referral of situations to the International

Criminal Court.

D. A rapidly changing international order, complicated by the growth of

populism/nationalism, migratory crises, the politicization of the UNSC, and the withering

22 unipolar dominance of the United States in international power dynamics, has only served to further place more obstacles between the International Criminal Court and the realization of the dream of global justice: to end impunity.

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II. (1946-1991) Contextualizing Modern International Criminal Justice: History & Trends The quest to deliver a system of international criminal justice has its roots in the first half of the twentieth century, following two destructive global conflicts. This would be an era defined by a few realities. The first reality was that humanity’s ability to coordinate the worst kind of atrocities imaginable was both increasingly skilled and tangible. The second reality, relating to the international community’s response to the first reality, was that some sort of set of international institutions would be required to stop those in control of state power from causing unimaginable carnage. In actualizing that second realization, though, the international community ran into a major roadblock.

That major roadblock pertained to the bipolar nature of the international order following

World War II; discussions over the future of international institutions as well as their very goals became gridlocked and paralyzed, plagued by the inherent inability for major world powers to compromise on issues with even a remote relationship to their own interests. This period will be referred to as “Era I,” a time where the need for international criminal instruments and law was agreed upon as imperative, but was nonetheless destined for a stillbirth, if any. When considering the sheer carnage of what precipitated its necessity, the gridlock of Era I indicated a failure for international institutions and global stability.

The Quest to Keep Global War at Bay The first 50 years of the twentieth century brought bloodshed on a scale never seen before. Twelve of those years were spent on the two world wars, which took the lives of tens of millions, including millions of innocent non-combatants. Over the course of those two world

24 wars, the world witnessed the horrors of aggression, genocide, war crimes, crimes against humanity, chemical war, and nuclear war. Concerned by the increasing lethality of war, the international community attempted to work out a new global paradigm that would prevent the horrors such conflict brought, both in terms of rule-based international organizations and in terms of ideas that would protect innocents from the horrors of war and .

The first attempt after World War I was the League of Nations, an international organization that would ultimately fail to maintain the delicate peace reached after the war and fail to prevent World War II. The League was active during that time and it made attempts to establish a hierarchy of institutions and norms that would protect non-combatants from being targeted. According to Professor John P. Cerone, the League considered the idea of an international penal court that would be able to try individuals for gross violations of international norms—like war crimes and crimes against humanity—but was unable to pass the initiative through its Council.48 Cerone cites the future “UN Special Rapporteur Richard Alfaro” for an explanation to that decision, who had claimed “that there was no defined notion of international crimes,” nor was there any code that such an institution could follow.49 While this attempt was ill-fated and resulted in little progress toward protecting human rights, it revealed that there were people interested in such a venture and later served as important precedent.

The question of international criminal justice through an international penal court would come up once again after World War II, a conflict that demonstrated that any previously established international respect for human rights was, at best, without teeth. This time, the established post-war order—in the form of the United Nations international organization—stuck, allowing for the actual maintenance of post-war peace. Again, international criminal justice was

48 Cerone, “Dynamic Equilibrium”: 282. 49 Ibid.

25 attempted, this time in the form of international military tribunals for Axis war criminals, which actually came to fruition. The tribunals, though, were flawed in that they could be characterized as “victors’ justice,” applying only to violations committed by members of the Axis states or militaries.50 Note that while these parties’ violations were exceptionally heinous, acts committed by Allied powers—such as the firebombing of Dresden and the nuclear bombings of Hiroshima and Nagasaki—would also constitute atrocities against civilians by today’s international legal standards. Despite the flaws of the international military tribunals, they too constituted real progress toward a functioning international criminal code and court that would be able to deter heinous abuses of human rights.

After the post-war tribunals, international criminal law would finally emerge, but not before several arguments and setbacks whose consequences linger into today’s institutions. As influential as those consequences are, it is important to dive deeper into the failings of initial post-war discussions to establish an international criminal or penal court.

The Genocide Convention & an International Criminal Court

On December 9 of 1948, the General Assembly adopted the Convention on the

Prevention and Punishment of the Crime of Genocide, better known by its shorter name, “the

Genocide Convention.”51 The Genocide Convention is an international agreement that defines and condemns the crime of genocide, which had been of the darkest atrocities committed against innocent people World Wars I and II. Although it does not mince words about how serious the issue of genocide is, the convention largely international instruments to enforce the stipulations that ratifying states swear themselves to. The possible major exception here, though, is the

Convention’s Article VI, which stipulates the following:

50 Ibid., 284. 51 United Nations, “Genocide Convention.”

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“Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the state in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”52 This section of the convention invoked the possibility of a future international criminal court having jurisdiction over the crime of genocide, which was both a significant point of contention in its drafting as well as a significant point of contention in the American consideration of the

Convention, which would not come until Senate ratification in 1986.53

It is worth noting that the stipulations of Article VI are, in the words of Benjamin B.

Ferencz (the last living prosecutor from Nuremberg) in his 1980 book, the results of a rearranging of already-“watered down” language from a draft convention that had the creation of an international penal tribunal in its Article VII.54 Even in the face of a “watered down” suggestion of a future international criminal court to prosecute the crime of genocide, certain important groups in American society disagreed on the domestic implications of certain parts of the Genocide Convention—a factor that spoke largely to domestic opinion shying away from the principles of international criminal justice developed at the United Nations as a whole.

In 1950 the Genocide Convention was sent to the U.S. Senate for approval as a treaty.

Senate debate on the subject reveals much about tentative American opinion on the matter. Much of the was in relation to the stipulations in Article VI. In a 1950 executive session of the Senate

Committee on Foreign Relations, Senator McMahon (D-CT) noted that the American Bar

Association had made objections pertaining to “this business about an international court,” to

52 Ibid., Article VI. 53 United States Senate, “Treaty Document 81-15 - International Convention on the Prevention and Punishment of the Crime of Genocide,” Legislation, Congress.gov, February 19, 1986, https://www.congress.gov/treaty- document/81st-congress/15. 54 Ferencz, An International Criminal Court: 13-15.

27 which the senator responded was “silly” due to the loose wording of Article VI.55 While Sen.

McMahon himself was supportive of moving the Convention out of committee, other senators were not, noting how the reputable American Bar Association had found legitimate constitutional issues with the Convention.

The concerns that Sen. McMahon invoked were from testimony delivered by Alfred J.

Schweppe, who appeared as the Chairman of the Peace and Law Committee of the Bar

Association (and, notably, not as a member of the overarching organization)56 before a specialized subcommittee focused on the Genocide Convention earlier in 1950.57 Among the many points against the Convention he made, Mr. Schweppe explained that while he “yield[ed] to no one in [his] opposition to genocide…,” the Convention as contemporarily worded provided no “constitutional safeguards and legal rights accorded persons charged with domestic crimes,” which would render any act against an American citizen unconstitutional.58 The full position declared by the House of Delegates of the American Bar Association was that “the proposed convention raises important fundamental questions but does not resolve them in a manner consistent with our form of Government.”59 Of course, those concerns had to do with the incompatibility of international criminal law as practiced with the inalienable rights American citizens are entitled to.

Here, we see that a contingent of American legal minds, keeping in mind the severity and complexity of the subject matter, nonetheless cited constitutional concerns specifically regarding

55 United States Senate, “Executive Session: International Convention on the Prevention and Punishment of Genocide - Wednesday, September 6, 1950,” § Committee on Foreign Relations (1950): 2-5. 56 United States Senate, “The Genocide Convention: Hearings Before a Subcommittee of the Committee on Foreign Relations, United States Senate,” § Subcommittee on the International convention on the Prevention and Punishment of Genocide (1950): 157. 57 Ibid., 156. 58 Ibid., 198. 59 Ibid., 158.

28 the proposition of an international criminal court as grounds for recommendations for the Senate to not ratify the treaty. As it stood, the notion of American involvement in such a [prospective] international criminal system was unacceptable to these individuals, and they would not be alone; multiple others called to testify before the committee similarly expressed constitutional concerns with the Convention.

It is important to further contextualize the issues Schweppe referred to in his testimony. If an American military element (or elements) were accused of genocide, then, if party to the

Convention, they would be liable under Article VI, regardless of their interpretation of the situation. While genocide is defined by the Convention as an objective concept, an accusing or an accused party’s prerogative would be to refute the opposing side’s claim. For the United

States specifically, a state that participated in many military ventures during the twentieth century, it would make sense to stay away from the Convention in the interest of protecting citizens deployed abroad from any vulnerability to prosecution.

With this context and documented opposition to a Convention that, again, bore little in the name of teeth, it comes as no surprise that the United States Senate could not ratify it until well after its entry into force. While the United States would go on to entertain the concept of an international criminal court past these hearings on the Genocide Convention, its inability to ratify the Convention for fear of subjecting Americans to international criminal law would foreshadow the dissension to come in post-war negotiations for an international penal court.

A Code and a Court All courts need laws or codes from which violations can be codified, and an international criminal court would be no different. Just as with the post-war tribunals, a code would be required. As the notion of international criminal law was quite novel at the time, there were only a handful of precedents from which to work, most notably from the post-war tribunals. Those

29 precedents, in the form of the “principles”60 applied in those tribunals, became the focus of the

1946 General Assembly Resolution, 95 (I), which recognized those principles and requested the consideration and depositing of recommendations for universal principles, or, “an International

Criminal Code.”61 Such a code would enumerate the possible crimes whose violations could be brought before an international criminal jurisdiction. Despite significant efforts to develop such a code, the international community to that point in time remained unable to codify it.62 There are a number of reasons why the community was unable to come to any agreement regarding a code—which was drafted several times in the late-1940s into the 1950s63—that was to be based on principles already implemented in ad hoc international prosecutions. Those reasons boil down to long-standing hot-button topics that happened to come at the worst possible time: amid the tensions of the Cold War.

By the time the first draft for a code was presented in 1950, “hostilities had erupted in

Korea.”64 Any enthusiasm that could have been shared between the sovereign states negotiating such a novel international venture “became a causality of war.”65 From that point forward, negotiators had to keep in mind the geopolitical realities of the new post-war order. The Cold

War between the United States and the U.S.S.R. had, just five years after the end of World War

II, created its first far-reaching . With that war came diplomatic hostility between the two major power blocs; the Soviet Union “denounced” the American rush to aid the South

60 See: footnotes 69 and 70 61 United Nations General Assembly, “95 (I). Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal” (United Nations, December 11, 1946), http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/95(I). 62 Benjamin B. Ferencz, “The Draft Code of Offences Against the Peace and Security of Mankind,” The American Journal of International Law 75, no. 3 (July 1981): 674, https://doi.org/10.2307/2200702. 63 Ibid., 675. 64 Ibid., 674. 65 Ibid., 674.

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Koreans as “aggression,”66 thus sparking the tinderbox that would bog down negotiations for a code even further. It is also worth noting that the “major powers were busy accusing each other of aggression and related crimes.”67 This made the problem of aggression

(not to mention the undefined other “related crimes” Ferencz refers to) a multi-sided one, with both sides employing the same language—which the 1950 draft code of offenses would repeatedly try to codify as an international crime in its Article 268—to shame the other. It stands to reason that as far as aggression could theoretically go in a hypothetical international criminal court at that point, neither side would agree to submit themselves to the other’s definition. Given that the Cold War would not end until the 1990s (not so coincidentally the same decade as the final establishment of a code of offenses [The Rome Statute of 1998]) and that proxy wars stemming from the larger conflict would continue to crop up, it also stands to reason that any agreement over the crime of aggression would be difficult to come by.

Aggression and Draft Codes

The issue of aggression is an interesting one; while it while seems to be the factor that doomed both an international criminal code and court, it was previously agreed upon. In 1945 an annex to the Charter of the International Military Tribunal (Nuremburg Tribunal) had, declared—with agreement from the U.K., the U.S., France, and the U.S.S.R.—that “waging a war of aggression” constituted a “,” the first set of crimes enumerated in the annex’s Article 6.69 It was defined to better characterize the criminal nature of Axis military activities and, of course, to deter any further potential aggressors. General Assembly Resolution

66 Ferencz, An International Criminal Court: 19. 67 Ferencz, “The Draft Code of Offences Against the Peace and Security of Mankind”: 674. 68 International Law Commission, “Text of the Draft Code,” in Yearbook of the International Law Commission 1951, vol. 2 (United Nations, 1951): 135. 69 United Nations, “Charter of the International Military Tribunal - Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (‘London Agreement’),” Refworld, August 8, 1945: Article 6(a), https://www.refworld.org/docid/3ae6b39614.html.

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95 (I) had affirmed a desire for a code and Resolution 177 (II) in 1947 directed the newborn

International Law Commission (ILC) to derive a code of offenses from the established precedents at the Nuremberg Tribunal.70 The ILC had drafted a coherent set of Nuremberg

Principles in 1950.71 That same language about “waging a war of aggression” was included almost verbatim in Principle VI in the 1950 released by the ILC.72 Also in

1950, the General Assembly declared that “any aggression” would constitute “the gravest of all crimes against peace and security.”73 Indeed, there was great interest in what to do about aggression after World War II, and the General Assembly seemed exceptionally committed to the resolving issue—to the point where it directed the ILC to formulate a code of offenses based on premises including the issue. Following this logic through to conclusion, as aggression was of deep concern in the Nuremberg Principles (and to the General Assembly), so too would it be in any draft for a code put forward by the ILC as per its mandate from the Assembly.

Such a contentious issue had real-time implications. After the Soviet Union declared that the United States’ decision to intervene in the conflict on Korea on behalf of the south constituted aggression, it lodged an official request with the United Nations to “agree upon a definition of aggression.”74 The UN responded with General Assembly Resolution 378 (II),

70 United Nations General Assembly, “95 (I). Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal;” United Nations General Assembly, “177 (II). Formulation of The Principles Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal” (United Nations, November 21, 1947), United Nations Official Documents, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/177(II). 71 International Law Commission, “Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal: 1950” (United Nations, 1950), http://legal.un.org/ilc/texts/instruments/english/draft_articles/7_1_1950.pdf. 72 Ibid., Principle VI. 73 United Nations General Assembly, “380 (V). Peace through Deeds” (United Nations, November 17, 1950), United Nations Official Documents, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/380(V). 74 Ferencz, An International Criminal Court: 19.

32 section B with a referral of the question to none other than the International Law Commission.75

This made for an exceptionally full platter for the ILC to deal with, having been mandated to deal with the Nuremberg Principles, a code of offenses based on those Principles, and also the issue of aggression (which was also a component of the other two to boot). Given the geopolitical quagmire that was the early-1950s, formulating a code of offenses or International

Criminal Code would be difficult. The General Assembly heavily insinuated that these things should have had aggression attached to them; attaining any agreement between rival powers accusing each other of such acts (and more) would have been quite the task. Cerone concurs with the notion that agreement would have been difficult, writing that the issue of aggression was

“controversial.”76 Indeed, the literature agrees that the issue of aggression was controversial, and its near-mandated inclusion in a code would prove to make the issue of a code equally so.

Getting Past Aggression: An Insurmountable Task?

While there was a consensus among several United Nations member states that the development of international criminal law (and all aspects therein) was agreeable, there were some disagreements on the subject. Two years after the ILC released the Nuremberg Principles, in early January of 1952, the Sixth Committee met in Paris to discuss an issue the ever-salient issue of defining “aggression” in any international code of offenses. At this meeting, the delegates debated how to define aggression. At times they seemed exasperated. Perhaps in acknowledgement that the issue of aggression was a contentious one, the French delegate Mr.

Chaumont had suggested a way to neutralize the issue by decoupling it from its political

75 United Nations General Assembly, “378 (V). Duties of States in the Event of the Outbreak of Hostilities, Section B.” (United Nations, November 17, 1950), United Nations Official Documents, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/378(V). 76 Cerone, “Dynamic Equilibrium”: 287.

33 implications and considering it from a strictly legal point of view.77 Mr. Maktos, the American representative, had disagreed with several of Mr. Chaumont’s positions, particularly the ones involving the disregarding of political implications when defining aggression, but nonetheless continued to advocate that he “had never taken the conservative view” on the subject of an international criminal law and had also personally advocated for an international criminal tribunal.78 The debate would sooner or later always boil down to a political one for the

Americans, given their previous aversity to the topic as well as the fact that it would inevitably become a political issue when submitted to the Senate. Such disagreements were, therefore, irreconcilable. While disagreements like the one between Mr. Chaumont and Mr. Maktos often cropped up in discussions in the Sixth Committee, the parties involved—at least until this point in 1952, continued to reaffirm their commitment to working toward a solution that would produce an international criminal legal system. It was apparent, though, that the issue of aggression was a point of substantial disagreement even in the early days of negotiations.

Aggression and the Collapse of a Twentieth Century ICC

The two major power blocs in the Cold War could not agree what exactly aggression constituted. The fact that the Sixth Committee was unable to come up with any real resolution as to the problem of a substantial definition for aggression was in large part due to profound disagreements over what exactly it was. In the United States Senate, for example, the divide between possible opposing definitions of aggression was clear; Senator McCarran (D-NV) on

June 25 of 1951 slammed a “Communist International Brigade” for essentially framing the

77 United Nations General Assembly, “Report of the International Law Commission Covering the Work of Its Third Session (A/1858), Including: (A) Question of Defining Aggression (Chapter III) (Continued),” § Sixth Committee (1952): Para. 2, 159. 78 Ibid., Para. 12, 161.

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United States and its allies for engaging in “aggression” on the Korean Peninsula.79 It would stand to reason that the demonization of communism as represented by Sen. McCarran’s remarks on aggression (also taking into account that “aggression” was the phrase that the Soviet Union used in condemning U.S. action in Korea)80 would have been unhelpful both for constructive dialogue between the two states and their associated blocs at the United Nations as well as in negotiations as to the definition of the word “aggression” itself.

Sen. McCarran was obviously not the only member of the Senate to employ this kind of rhetoric regarding communism and aggression, indicating that this was a matter above simple party politics. Senator Joseph McCarthy (R-WI) was made infamous for his Red Scare later in the 1950s. On the same day as Sen. McCarran’s remarks, Senator Hubert Humphrey (D-MN), the future Vice President and presidential candidate, also made mention to “Communist aggression.”81 Senator Ives (R-NY) similarly made reference to a need to defend “against powerful aggression.”82 Considering this rhetoric is in the context of the (and some of it makes explicit mention of communism), it can be deduced that, to a contingent of United

States Senators (as well as U.S. allies), aggression could be defined as something similar to how the communists had conducted themselves on the Korean Peninsula. Recall Mr. Maktos’ comments regarding the political implications of defining aggression—here, several U.S.

Senators exemplify the American representative to the Sixth Committee’s reasoning. Defining aggression, as he noted, was inherently political,83 and it stands to reason given the opinions expressed by this bipartisan sampling of U.S. Senators on one specific day in 1951, the U.S.

79 US Congress, “Congressional Record - Senate” (1951): 7018. 80 Ferencz, An International Criminal Court: 19. 81 US Congress, Congressional Record – Senate: 7018. 82 Ibid., 7040. 83 United Nations General Assembly, Report of the International Law Commission covering the work of its third session (A/1858), including: (a) Question of defining aggression (chapter III) (continued): Para. 16, 161.

35 government could not expect to come to any consensus with the international community on

“aggression,” especially with states aligned with the Soviet Union, and expect positive feedback on the domestic front.

This line of reasoning is, further, not without evidence. In 1950, then-Special Rapporteur

Jean Spiropolous of the ILC noted in a draft code that disagreements between the Americans and the Soviets resulted in a situation where any attempts to define “the notion of aggression […] would prove to be a pure waste of time.”84 In addition to the obvious reality of substantial differences existing between opposing definitions of “aggression,” the international community acknowledged it. Recognizing the impasse on the aggression question, it is important to again invoke intertwined relationship between the issue and a prospective code of offenses and an international criminal court. In the above mentioned 1952 meeting of the Sixth Committee, the issue of aggression was mentioned as part of the ILC’s mandate and therefore intrinsically tied in with the rest of the work that it was doing in preparing a code of offenses.85 Ferencz (1981) notes that “without a definition of aggression the code was incomplete, and without a code there was no need for a court.”86 The issue of aggression was so interwoven with the issue of a code of offenses (due to the General Assembly’s mandates to the ILC) that if an international criminal court were created without aggression defined, the code could not be recognized as complete by the members of the Sixth Committee.

Indeed, given there could be no substantial agreement as to what aggression constituted, any draft code presented would be incomplete. As Ferencz (1980) notes, Special Rapporteur

84 Jean Spiropolous, “Report by J. Spiropolous, Special Rapporteur,” Special Rapporteur Document (International Law Commission, April 26, 1950), Yearbook of the International Law Commission, Vol. II (1950): 262. 85 United Nations General Assembly, Report of the International Law Commission covering the work of its third session (A/1858), including: (a) Question of defining aggression (chapter III) (continued): Para. 4, 159. 86 Ferencz, “The Draft Code of Offences Against the Peace and Security of Mankind”: 675.

36

Spiropolous submitted a draft for a Code of Offenses against the Peace and Security of Mankind in late-April of 1950 that included several crimes of aggression “without attempting to define it.”87 Obviously, this draft did not accomplish much, as the Sixth Committee was still arguing over the definition of aggression two years later. While discussions on the subject continued, it was clear that geopolitical realities and irreconcilable differences between major negotiating powers (and power blocs) sealed the fate of discussions as soon as the issue of aggression was debated and affirmed as a deciding factor in the creation of an international criminal code and associated instrument.

It comes, then, as no surprise that in 1954 the General Assembly decided to “postpone further consideration of the draft Code of Offenses against the Peace and Security of Mankind” until aggression could be otherwise defined88 as well as any discussions on a possible court until the issues pertaining to aggression and the draft code (which were tied together) were resolved.89

These decisions, which came in two consecutive resolutions at the December 4, 1954 meeting of the General Assembly, solidified the Assembly’s position that a definition of aggression was a prerequisite for a serviceable code of offenses, which in itself was a prerequisite for the establishment of an international criminal court to prosecute violations of that code. With the draft Code of Offenses against the Peace and Security of Mankind consistently including crimes of aggression without defining the word (due the constraints on doing so), the creation of an international criminal court was, under the circumstances mandated in this era by the General

87 Ferencz, An International Criminal Court: 20. 88 United Nations General Assembly, “897 (IX). Draft Code of Offenses against the Peace and Security of Mankind” (United Nations, December 4, 1954), United Nations Official Documents, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/898(IX). 89 United Nations General Assembly, “898 (IX). International Criminal Jurisdiction” (United Nations, December 14, 1954), United Nations Official Documents, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/898(IX).

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Assembly, impossible. Even after the Korean War ended, the deadlock did not improve, indicating that these discussions truly were causalities of the increasingly-pervasive Cold War.

Once again, in plenary in November of 1957, the General Assembly remarked on its desire to move forward the question of aggression, which was still undefined—but importantly requested that the Secretary-General at the time “to place the question of defining aggression on the provisional agenda of the General Assembly, not earlier than its fourteenth session,” essentially deferring discussions on the issue for two more years.90 This deferring on the aggression conversations is notable, as it in essence deferred discussion of the draft code further back, which was itself again deferred until aggression could be defined in a December 1957 resolution.91 Once more, the question of an international penal or criminal court to deal with those issues was also deferred until the code and aggression could be dealt with in another resolution at that same December 1957 meeting.92 The action taken in 1957 was almost identical to action taken in 1954. The inability to define aggression led to an infinite loop of futility at the

General Assembly, which had made it so that an international criminal legal system—once a highly-sought after post-war project—was reliant on resolving an issue that simply could not be resolved due to aforementioned differences made more salient by the geopolitical context of the discussions. After the 1957 deferrals, though, in contrast with 1954’s deferrals, the subject went into a dormant state for decades, with Cerone discussing the development as an “abandonment”

90 United Nations General Assembly, “1181 (XII). Question of Defining Aggression.” 91 United Nations General Assembly, “1186 (XII). Drat Code of Offenses against the Peace and Security of Mankind” (United Nations, December 11, 1957), United Nations Official Documents, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/1186(XII). 92 United Nations General Assembly, “1187 (XII) International Criminal Jurisdiction” (United Nations, December 11, 1957), United Nations Official Documents, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/1187(XII).

38 of the initiative.93 Indeed, the conversations were abandoned, not to be revisited until after several decades had passed, and, multiple human rights atrocities, had passed.

By the time the General Assembly had indefinitely deferred discussion on the issues in

1957, it was clear that without a definition for aggression, it would neither allow nor breach discussions of a code of offenses or an associated international penal or criminal court.

Aggression was, indeed, the deciding factor—and the consequences of the Cold War made a sticky situation even more untenable.

The International Criminal Court Today – A Legacy

The dream of international criminal justice as imagined after World War II came to fruition in 1998 through the Rome Statute, but, as Chapter III will discuss, the modern

International Criminal Court is not without flaws. The issue of “aggression” was included in the

Rome Statute, but was effectively punted for several years until a definition was finally agreed upon and included in the statutes amended text; according to the Coalition for the International

Criminal Court (CICC), the ICC has only maintained jurisdiction on the issue of aggression since the entry into force of the amendments since July 17, 2018—less than a year ago.94 In its release, the CICC qualifies the explanation of the recent changes by noting that outside of a UNSC resolution, the ability of the Court to exercise its jurisdiction over the long-debated topic of aggression is conditional upon other complicating factors, including agreement to the amendments by States Parties to the Rome Statute,95 not to mention those states not involved with the Court at all. After decades of discussion, the establishment of a tangible international criminal code in the Rome Statute, and the establishment of an International Criminal Court

93 Cerone, “Dynamic Equilibrium”: 287. 94 Coalition for the International Criminal Court, “Crime of Aggression,” Coalition for the International Criminal Court, n.d., http://www.coalitionfortheicc.org/explore/icc-crimes/crime-aggression. 95 Ibid.

39 proper, the international community has still remained unable to answer the very core questions it set out to solve in the aftermath of World War II.

The discussions to create a permanent instrument of international criminal justice in Era I left a legacy. After that period ended and conditions changed, a modern ICC commenced operations in 2002. That instrument, though, lacks the legitimacy and power necessary to enforce standards of international criminal law and actually deter violations thereof. This opens the door for a whole array of problems for the Court, which all invariably stem from the disagreements that doomed its creation earlier on. Instead of establishing a functional international criminal tribunal as conceived in the wake of the carnage of the first part of the twentieth century, the international community dragged its feet; granted, states worked to hash out a roadmap for such an international instrument but bickered and drew lines in the sand over semantics and irreconcilable definitions of buzzwords. When an instrument finally was established, many of the topics at issue originally came back to the forefront of argument. Many of those original negotiating states refused to even join the new instrument, thereby hurting its legitimacy and guaranteeing the perseverance of impunity.

When negotiations to launch an international criminal or penal court began following

World War II, it was generally agreed upon that aggression was to be avoided and human rights abuses were wrong. Constitutional issues and the reality of Cold War international relations got in the way, but aggression was generally singled out and condemned as an outlier in a world aspiring to be peaceful. That era ended when the Berlin Wall fell, and the dream of international criminal law became real. Not long after, though, the conflict between powerful sovereign states and binding international juridical institutions reigned, but to a different tune. Not only do the same issues remain, but also many of today’s world leaders now hold a more cavalier attitude

40 toward aggression, as if it ceased to really matter. The law of the jungle, if you will, has begun to reemerge. As the next chapter shows, the consequences of the past present a tight situation for the present and a dire situation for the future.

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III: (1991 to Present) International Criminal Justice in the Post-Soviet Era

The Pre-ICC Emergence of International Criminal Justice

When the Soviet Union fell in December of 1991, international power dynamics were shaken to their very core. No longer was there a clear counterbalance to the power of the United

States, which in the absence of the Soviet Union enjoyed a far freer international environment in which to navigate. This was “Era II,” a period defined by American dominance of the instruments of the international order. The gridlock that had defined Era I evaporated, removing the need for compromise as an obstacle for the institution of international criminal justice. In the absence of a stronger counteracting force, the United States did support the establishment of several instruments of international criminal justice—the first since World War II—through

United Nations Security Council resolutions invoking Chapter VII powers.

The collapse of the Soviet Union did not indicate the end of the hostilities that plagued the twentieth century. While the proxy conflicts spun off from the Cold War had come to an end, ethnic tensions mounted throughout the world in areas where the uniting force of decaying ideologies was fading and in post-colonial states still struggling with the horrors of their pasts.

Violence based on the burning question of capitalism versus communism waned, yet violence of other types prevailed.

One particularly bloody series of conflicts came as a direct result of the waning of ideological influence: the . While the events that set these wars into motion were correlated with the collapse of Soviet-style communism in the Russian sphere of influence, they can be better traced back to the death of Josip Broz Tito in 1980. Tito’s socialist Yugoslavia,

42 according to Daniel Duncan, was a state constituting several smaller republics, including

Slovenia, Croatia, Bosnia-Herzegovina, Serbia, Montenegro, and Macedonia. Diverse to its very core, Yugoslavia was a collection of Slovenes, Croats, Bosniaks, Serbs, Albanians,

Montenegrins, Slovaks, Hungarians, and more. This diversity was, further, multi-dimensional; these ethnic demarcations also indicate religious and linguistic boundaries. Duncan along with

Shale Horowitz and Min Ye in their analysis of the breakup of Yugoslavia concur that Tito’s firm control over central power in the state was the glue that kept these vastly different republics together.96 It was only after Tito’s death that fractures upon ethnic lines were revealed. Duncan refers to the post-Tito administration of Yugoslavia as a “decentralized” collection of “nine presidents wielding executive power: one for each republic and autonomous province, plus the head of the League of Communists,”97 while Horowitz and Ye refer to this “collective presidency” as “a unique form of authoritarian federalism.”98 This “decentralized” system would serve to further pry open divides between the constituent republics of Yugoslavia and deliver the conditions in which war flourished.

Without the cult of Tito and without the unity enjoyed during his rule, the bonds that linked the different Yugoslav republics broke. His state had, according to Duncan, suppressed

“all forms of nationalism” so as “to create a Yugoslav identity.”99 Instead of a Yugoslavia united around Tito his ideas of a state that transcended the lines dividing it, there remained only a

Yugoslavia heavily fractured along those lines. Ethnic nationalism did finally burst through, and

96 Daniel Duncan, “Language Policy, Ethnic Conflict, and Conflict Resolution: Albanian in the Former Yugoslavia,” Language Policy 15 (2016): 455, https://doi.org/10.1007/s10993-015-9380-0; Shale Horowitz and Min Ye, “Nationalist and Power-Seeking Leadership Preferences in Ethno-Territorial Conflicts: Theory, a Measurement Framework, and Applications to the Breakup of Yugoslavia,” Civil Wars 15, no. 4 (2013): 519, https://doi.org/10.1080/13698249.2013.853422. 97 Duncan, “Language Policy, Ethnic Conflict, and Conflict Resolution”: 455. 98 Horowitz and Ye, “Nationalist and Power-Seeking Leadership Preferences in Ethno-Territorial Conflicts”: 519. 99 Duncan, “Language Policy, Ethnic Conflict, and Conflict Resolution”: 460.

43 several constituent republics seceded. The violence that followed was unthinkable. War crimes, crimes against humanity, and even genocide were committed on grand scales throughout the

Balkans as part of targeted campaigns against opposing ethnic groups. “Ethnic cleansing” became a household phrase. In his book on prosecuting international crimes committed in the

Balkans, Professor John Hagan lists a staggering number of incidents that qualified as such, including “death camps” at Prijedor, “rape houses and conditions of sexual enslavement in the area of Foca, in the southern part of Bosnia,” and the infamous Srebrenica massacre—“the largest massacre in Europe since World War II.”100 Just 50 years following the conclusion of that war—a war that involved the murder of millions—genocide had taken place once again. The massacre at Srebrenica killed “approximately seven thousand Bosnian Muslim men and boys.”101

Although this specific massacre was among the worst of the atrocities committed in these wars, it was certainly indicative of the horrific human rights abuses that had been taking place across the former Yugoslavia.

It was not long after the beginning of the wars in 1991 when the United Nations Security

Council, then freed from the ideological deadlock that had defined most of its history, passed

Resolution 827 [S/RES/827 (1993)]. The lack of ideological opposition from the Soviet Union along with the support of its successor (the Russian Federation) and China allowed for this landmark resolution. It established the ad hoc International Criminal Tribunal for the former

Yugoslavia (ICTY), the first such venture into international criminal law since the post-war tribunals discussed in Chapter II. The resolution gave the ICTY jurisdiction over any alleged violation of international humanitarian law occurring after January 1, 1991,102 and it would

100 John Hagan, Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal (Chicago: University of Chicago Press, 2003): 13-14, http://ebookcentral.proquest.com/lib/brandeis-ebooks/detail.action?docID=515745. 101 Ibid., 14. 102 United Nations Security Council, United Nations Security Council Resolution 827 (1993) [S/RES/827].

44 continue to operate until the end of 2017, when its residual functions were absorbed by the

Mechanism for International Criminal Tribunals (MICT), a residual body dealing with any further legal action or other activities involving the ICTY or the International Criminal Tribunal for Rwanda (ICTR).103

The ICTY was not a perfect tribunal by any means. Flagrant violations of international humanitarian law continued to occur after its 1993 establishment, including the horrors at

Srebrenica. That being the case, the ICTY was more of a reactive tribunal than an institution able to use its prosecutorial powers and jurisdiction in order to deter further violations. It was, however, effective. In his article to The Guardian detailing the closing-down of the ICTY in late-

December of 2017, Owen Bowcott writes that during 24 years of operation, the Tribunal was able to produce “161 high-profile indictments,” including “former Yugoslav president Slobodan

Milošević, the Bosnian Serb leader Radovan Karadžić and Gen Ratko Mladic….”104 These individuals held positions of authority and were directly involved in the planning and executing of human rights abuses during the wars, and the ICTY’s ability to get them in the dock to face justice was meaningful. As flawed as the Tribunal was, it is irrefutable that it was able to deliver justice and stem impunity after a prolonged period where, in the absence of this kind of international criminal law, impunity was all but guaranteed. The ICTY was a major stepping stone that showed that international criminal justice could work as the twenty-first century rapidly approached.

The importance of the ICTY cannot be overstated. It broke ground for international criminal justice in the post-Cold War world. It provided precedent for the ICTR, which would in

103 Owen Bowcott, “Yugoslavia Tribunal Closes, Leaving a Powerful Legacy of War Crimes Justice,” The Guardian, December 20, 2017, sec. Law, https://www.theguardian.com/law/2017/dec/20/former-yugoslavia-war- crimes-tribunal-leaves-powerful-legacy-milosevic-karadzic-mladic. 104 Ibid.

45 a similar fashion go on to investigate and prosecute alleged violations of international humanitarian law in Rwanda following the genocide of 1994. It, perhaps most importantly, through its successes, facilitated the rise of a more permanent type of tribunal: The modern

International Criminal Court.

A Real Permanent Tribunal Fails to Deliver Real Results

Somewhere along the way, though, the International Criminal Court met the realities of international politics. Even though the factors that prevented the establishment of such an institution in Era I had evaporated, the Court has not been able to receive the kind of universal support necessary to maintain its operations as a tribunal tasked with applying a universal understanding of international humanitarian law. Cerone notes the key discrepancy between the relative successes in establishing international criminal law in Era II and the lack of success that the ICC has had: “The US has tended to support international criminal courts where the US government has (or is perceived by US officials to have) a significant degree of control over the court, or where the possibility of prosecution of US nationals is either expressly precluded or otherwise remote.”105 Thanks to its newfound lack of a counterbalance in power on the international stage, the United States was able to mold the ICTY and ICTR to these specifications; neither of these tribunals represented a remote threat to American interests.

On the other hand, as the ICC is supposed to apply international criminal justice on an equal and universal level, Cerone’s specifications are more in opposition. As a party to the Rome

Statute, the United States would not be able to unilaterally control the Court in a way that would guarantee American interests are not risked. It exerts exceptional power at the UNSC and thus over whatever the Council passes, but it would be no more exceptional than any other state at the

105 Cerone, “Dynamic Equilibrium”: 277.

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Assembly of State Parties to the Rome Statute. Domestic politics within the United States makes this issue even more difficult, particularly given the robust military presence that the U.S. maintains all over the world. The domestic position dictates the international position, and thus dictates the American contribution to the international politics that are hurting the International

Criminal Court.

Due to the consequences of those politics, the Court is failing to meet its own goals; human rights abuses continue in some states unabated. Impunity remains very real, even in states with compromised justice systems that would qualify for ICC intervention; under complementarity (an American inclusion in the Rome Statute), the Court’s Office of the

Prosecutor (OTP) is supposed to “defer” and not exercise its authority in “states with functioning legal systems.”106 Two major issues are at play in this failure. The first issue has to do with situations that it has found success in prosecuting, primarily in Africa; all of the 27 cases opened by an ICC prosecutor have included indictments against Africans.107 This is a profound issue for the Court, and it indicates that it is either ineffective overall or that it is purposefully targeting

Africans. The second issue pertains to the first indication: that the ICC does not possess any significant power. It is subject to the whims of states and of the United Nations Security Council

(UNSC), particularly in situations dealing with jurisdictional issues and involving state interests.

The ICC cannot mandate cooperation on the state-level, nor can it operate outside its own jurisdiction (events that transpired on state party soil or allegedly perpetrated by nationals of a state party)108 without the subject state’s referral or UNSC referral109—which is also dependent

106 Philippe Kirsch, “The International Criminal Court: Current Issues and Perspectives,” Law and Contemporary Problems 64, no. 1 (2001): 10, https://doi.org/10.2307/1192353. 107 International Criminal Court, “Cases,” International Criminal Court, n.d., https://www.icc- cpi.int/Pages/cases.aspx. 108 International Criminal Court, “Rome Statute”: Article 12(2)(a-b). 109 Ibid., Article 13.

47 on state interests. The Court can essentially run over weaker states but is powerless to do anything about violations involving stronger ones. These two major issues culminate in negative perceptions as well as negative realities for the court, complicating its ability to effectively enforce human rights norms.

The ICC as a Neo-Colonial Agent of the West

The International Criminal Court’s record clearly indicates a lopsided focus on Africa, which demonstrates a phenomenon in which it has been able to exercise power but at the same time lose credibility due to that focus. Indeed, all individuals who have ever appeared before the court (or those who have been charged for that matter) are from that continent. It comes as no surprise, then, that many regard the Court as neo-colonial, even though there are several potential situations under preliminary examination that involve non-African states.110 In order to properly demonstrate how such a reputation is damaging for the institution and for human rights, it is necessary to understand why the ICC has conducted its affairs in this way and to underscore the effects that such conduct has on the Court’s subjects and onlookers.

In order to understand how the International Criminal Court has gotten into this position, it behooves us to discuss the way such an institution is to gain custody of indicted individuals.

The Court is extremely limited in that regard, as the Rome Statute mandates in Article 59 that it is the responsibility of a “custodial state” to duly execute an OTP-issued warrant and transfer the arrested subject to the custody of the Court in The Hague.111 Consider this hypothetical: if the

ICC issued an arrest warrant for a head of state or a person with otherwise state-backing, why

110 International Criminal Court, “Preliminary Examinations,” International Criminal Court, n.d., https://www.icc- cpi.int/pages/pe.aspx; A preliminary examination is the first step in the Office of the Prosecutor’s investigation of a potential case. If a preliminary examination is not dismissed and provides significant evidence of criminal behavior under the Court’s jurisdiction, then it may be given permission by Pre-Trial Chamber on to a second investigative phase where it becomes a “situation.” From there, the Prosecutor can choose to indict individual(s) or close the investigation. 111 International Criminal Court, “Rome Statute”: Article 59(1,7).

48 should that state surrender them to such an institution? The Rome Statute assumes state parties will act in good faith in arresting and surrendering those under arrest warrant, which is more likely to happen when it is in the interests of the state. For an example of this, let us consider the four convictions decided by the International Criminal Court.

Those four cases are the Al-Mahdi Case, the Bemba et al. Case, the Katanga Case, and the Lubanga Case.

Al-Mahdi was an individual in Mali involved with a non-state militia associated with Al

Qaeda in the Islamic Maghreb.112 Bemba—the leader of a one-time rebel group active in the

Central African Republic—and all but one of his cohort were arrested by European states without relationships to the case.113 The last individual in Bemba’s cohort was arrested by the

Democratic Republic of the Congo, which was not the subject of that investigation. Katanga was an individual, like Al-Mahdi, involved with a non-state militia in opposition to the Democratic

Republic of the Congo, which had authorized the Court to investigate atrocities committed since the ICC came into being in 2002.114 Lastly, Lubanga, like Katanga and Al-Mahdi, was involved in an opposition militia; he was arrested on the same grounds as Lubanga by the Democratic

Republic of the Congo and surrendered to the ICC.115 In these examples we can see a clear trend; the arrest and surrendering of individuals to the Court requires cooperation with states, and all of those individuals convicted were not aligned with the governments arresting them. Some of those

112 International Criminal Court, The Prosecutor v. Ahmad Al Faqi Al Mahdi, International Criminal Court (International Criminal Court 2016). 113 International Criminal Court, The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, International Criminal Court (International Criminal Court 2016). 114 International Criminal Court, The Prosecutor v. Germain Katanga, International Criminal Court (International Criminal Court 2014). 115 International Criminal Court, The Prosecutor v. Thomas Lubanga Dyilo, International Criminal Court (International Criminal Court 2012).

49 cooperating governments were in opposition to groups that these convicted individuals were associated with.

Compare the outcomes for these four cases with a case involving an individual indicted when serving as head of state and continues to serve in that capacity. This individual is President

Omar al-Bashir of Sudan. According to the al-Bashir Case Information Sheet, there are two warrants existing for his arrest as issued by the International Criminal Court for several counts

(each) of crimes against humanity, war crimes, and genocide.116 These charges pertain in most part to the conflict in Darfur—that situation was referred to the Court by the UNSC as part of

S/RES/1593.117 Jean-Baptiste Jeangène Vilmer notes that “when […] al-Bashir was indicted […] the protests started to spread. Fueled by other leaders’ fear and al-Bashir’s desire to embody ‘a liberation movement against this new colonization’, a post-colonial, pan-African anti-ICC rhetoric emerged.”118 With al-Bashir and his allies still firmly in control of the Sudanese state and its institutions, the International Criminal Court is powerless to arrest him or anyone else who may be indicted as part of the investigation in Sudan. Worse, when al-Bashir traveled to

South Africa for an African Union summit in 2015, he was not arrested, in “violation of [the

South African government’s] constitutional obligation” as a state party to the Rome Statute.119

South African President Jacob Zuma “invoked the immunity of serving heads of state” as reasoning for not arresting al-Bashir and allowing him to leave the country.120 Uganda did similar in 2015 and 2016.121 Here we see a different trend develop; when it comes to people who

116 International Criminal Court, The Prosecutor v. Omar Hassan Ahmad Al Bashir, International Criminal Court (Ongoing). 117 Jean-Baptiste Jeangène Vilmer, “The African Union and the International Criminal Court: Counteracting the Crisis,” International Affairs 92, no. 6 (2016): 1321, https://doi.org/10.1111/1468-2346.12747. 118 Ibid. 119 Ibid., 1322. 120 Ibid. 121 Ibid., 1333.

50 wield power (even within Africa)—in particular President al-Bashir—other state parties to the

Rome Statute have demonstrated a disregard for their own obligations under Article 59.

When “Senegalese President Abdoulaye Wade deplored the fact that the ICC prosecutes

‘only Africans’,”122 he had a point. Vilmer continues, noting that “Jean Ping, chairperson of the

AU’s Commission, added that ‘international justice seems to be applying its fight against impunity only to Africa as if nothing were happening elsewhere—in Iraq, Gaza, Colombia or in the Caucuses’;”123 this is also a statement with merit. While there has been ICC activity regarding alleged abuses taking place in those areas, only one of them (the Georgia situation in the Caucuses) has made it past preliminary examination.124 The situation in Georgia is the only one not involving Africa,125 and it has thus far produced no indictments.126 The other areas of concern have not been thrown out, but they remain in preliminary examination.127 The

International Criminal Court has attempted to move its focus away from Africa, but has found itself in a situation where its own procedures and limitations have made it so there is only one investigation currently open that could produce indictments (that has moved past preliminary examination) that does not involve Africa—in Georgia, a small state located to Russia’s south in the Caucuses. That reality of an overwhelmingly lopsided focus on Africa is clearly shaping perceptions that are serving to hurt the institution’s popularity

This issue has prompted the African Union to advocate withdrawal from the Rome

Statute.128 While the resolution was not binding, a handful of African states—including South

122 Ibid., 1321. 123 Ibid. 124 International Criminal Court, “Situations Under Investigation,” International Criminal Court, n.d., https://www.icc-cpi.int/pages/situation.aspx. 125 Ibid. 126 International Criminal Court, “Georgia,” International Criminal Court, n.d., https://www.icc-cpi.int/georgia. 127 International Criminal Court, “Preliminary Examinations.” 128 BBC News, “African Union Backs Mass Withdrawal from ICC.”

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Africa—attempted to withdraw (all before the resolution) from the Rome Statute. Burundi actually followed through,129 and the Philippines under Rodrigo Duterte’s government is due to complete the withdrawal process in March 2019.130 What we are seeing at this juncture is a domino effect of sorts, where negative perceptions of the Court as a neo-colonial agent are spurring states to distance themselves from it. If this trend continues and this perception is perpetuated, it is not out of the question that more states will move in Burundi’s and the

Philippines’ direction. These developments signify states acting on these perceptions of ICC being neo-colonial, which serve to reduce its credibility even more. Boiled down, the

International Criminal Court’s reputation as a neo-colonial agent, which targets any international respect it may have, serves to undermine its operation to halt impunity as well as to undermine its ability to operate as states remove themselves from its jurisdiction.

While it appears to be an earned reputation for the Court, its apparent focus on Africa is a symptom of a larger overarching issue of sovereignty. Consider the fact that there are other potential full-fledged investigations under preliminary examination; some even involving countries with veto power at the UNSC (P-5). While the Court has shown that it can roll over alleged war crimes in weak states that have granted it the jurisdiction to do so, the next section will demonstrate that it is far from invincible when it comes to the more powerful states.

The ICC as a Powerless Subject to Sovereign States and the UNSC

This thesis referred to issues of sovereignty as it pertained to the example of neo- colonialism. The Court relies on sovereign states to both cooperate on a jurisdictional level as

129 Jina Moore, “Burundi Quits International Criminal Court,” The New York Times, October 28, 2017, sec. World, https://www.nytimes.com/2017/10/27/world/africa/burundi-international-criminal-court.html. 130 Patricia Lourdes Viray, “Philippines Formally Informs UN of ICC Withdrawal,” philstar GLOBAL, March 16, 2018, https://www.philstar.com/headlines/2018/03/16/1797330/philippines-formally-informs-un-icc-withdrawal.; The Philippines is also under preliminary by the ICC Office of the Prosecutor.

52 well as on a criminal justice level. Just as states like the Democratic Republic of the Congo cooperate with the ICC to counteract rival militia groups and to deliver a sense of justice in accordance with their own interests, so too do states like Sudan refuse to cooperate in accordance with their own interests. When it comes to litigating possible human rights abuses committed by individuals from the West, for instance, the same principle applies. This section will be structured in two parts that both boil down to the ultimate supremacy of state sovereignty: the first will discuss the dilemma of litigating situations within the Court’s jurisdiction but without state cooperation, while the second will discuss the juxtaposition of the International Criminal

Court and the United Nations Security Council.

Professor David Bosco writes that investigations initiated by the Office of the Prosecutor can run into barriers, as “a full investigation generally requires access to the territory, the provision of security, government information, and official permission to conduct interviews.”131

Bosco’s “political will”132 to allow investigations to progress is, of course, dependent on state interests. Consider the preliminary investigation into Afghanistan, which is analyzing any possible abuse in the state since 1 May 2003.133 This case is particularly of interests because it in part involves the United States, specifically an analysis of war crimes potentially committed by

American or CIA personnel.134 While the OTP’s investigation, if brought out of preliminary examination, would not require access to the territory of the United States, it would require some degree of cooperation that it is near impossible to get.

131 David Bosco, “Discretion and State Influence at the International Criminal Court: The Prosecutor’s Preliminary Examinations,” The American Journal of International Law 111, no. 2 (2017): 406, http://dx.doi.org.resources.library.brandeis.edu/10.1017/ajil.2017.28. 132 Ibid., 407. 133 International Criminal Court, “Afghanistan.” 134 Ibid.

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In terms of state interests, consider the following points. First, according to Bosco, “a

Court investigation could complicate that process if it scrutinized the actions of former warlords and militia commanders now serving in the government or their backers.”135 The United States has indeed invested an exceptional amount of resources in prosecuting the war in Afghanistan and fostering the government-building process. Inflaming tensions on a whim like that would run contrary to American interests in maintaining a semblance of peace in the region. According to

Hyeran Jo and Beth A. Simmons, other scholars concur with that assessment, quoting another study that claims “that ‘the ICC could initiate prosecutions that aggravate bloody political conflicts and prolong political instability in the affected regions.’”136 While Jo and Simmons continue by countering that “practically no systematic evidence has been produced to date to support such concerns,”137 it would not be outside the realm of reason for the United States to hesitate to test that assertion. The mere possibility of reigniting tensions would be disastrous for

American interests and preventing the ICC from broaching the subject is a sound way to keep this debate in the realm of theory.

Second, consider the other end of such an investigation: possible American abuses as previously alluded to. Bosco notes that “an ICC investigation could bring unwelcome scrutiny to certain U.S. practices.”138 If an American soldier or CIA agent were to be indicted in a potential case, there would be assuredly no cooperation from the U.S. government, even if there was tangible evidence of wrongdoing. On a diplomatic level, as Bosco notes, when the American government was made aware of allegations related to the examination, it “dispatched several

135 Bosco, “Discretion and State Influence at the International Criminal Court”: 412. 136 Hyeran Jo and Beth A. Simmons, “Can the International Criminal Court Deter Atrocity?,” International Organization 70, no. 3 (2016): 445, http://dx.doi.org.resources.library.brandeis.edu/10.1017/S0020818316000114. 137 Ibid. 138 Bosco, “Discretion and State Influence at the International Criminal Court”: 412.

54 senior officials to The Hague” in “alarm,” who eventually “argued that the Court cannot exercise jurisdiction over U.S. nationals.”139 Indeed, as per limitations in the Rome Statute, the ICC cannot prosecute situations on American soil or Americans proper, but with a catch. Recall how the Court does have jurisdiction over non-state party nationals who commit abuses on state party soil as well as over state party nationals who commit abuses on non-state party soil.140

Obviously, by including a part about possible American abuses in the preliminary examination, the OTP acknowledges that it does not matter that U.S. nationals are involved because

Afghanistan is a state party. That, though, does not necessarily indicate that the United States will drop its complaints and submit to the Court.

In fact, American opposition to the ICC has been anything but submissive. In early

September of 2018, The Guardian reported that National Security Advisor John Bolton warned the Court against acting on any potential American abuse in Afghanistan, threatening sanctions and even seek “to criminally prosecute ICC officials […] if the court formally proceeded with opening an investigation….”141 Bolton’s posture was fiery, but very much in line with American policy about the Court, as a state that has embraced unilateralism and ignored some of the international laws it helped to set up following World War II. Bolton’s and the administration’s overarching positions on the Court are ironic given all the American contributions to the development of international criminal justice in Era II; after decades of gridlock, the Americans had and took advantage of the opportunity for the UNSC to institute instruments to enforce international humanitarian law. Its interests ultimately got in the way of international criminal justice, though, and its opposition to it continues to solidify.

139 Ibid. 140 International Criminal Court, “Rome Statute”: Articles 12-13. 141 Bowcott, Holmes, and Durkin, “John Bolton Threatens War Crimes Court with Sanctions in Virulent Attack.”

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At the end of the day, if the ICC decides, for example, to move the preliminary examination into Afghanistan into the investigative phase—thereby indicating that it is actively attempting to distance itself from neo-colonial perceptions—the United States will not necessarily make it easy for the institution. American interests dictate that the Court should stay away from situations it is involved with, especially if such a situation includes potential war crimes committed by Americans.

Countries like the United States with the resources, power, and interests to counteract a cooperation-reliant International Criminal Court thus hold a significant amount of leverage in dealing with the Court. Similarly, those states with less of those resources, interests, and power hold less leverage in countering the Court. These conclusions further indicate that the ICC is limited at best in its ability to serve its purposes, and scholars agree; Jo and Simmons write that some “argue that ICC deterrence is undercut because it depends on states’ willingness to cooperate…” and that others stipulate that “low probability of capture makes the ICC deterrent effect weak.”142

While the Court’s limitations are considerable, the ICC has shown that it can be an asset even when hamstrung. Benjamin Appel in an essay about the possible deterring effects the Court may have, notes that “after the ICC started to investigate Guinea, for instance, the European

Union, the African Union, and the Economic Community of West African States enacted economic sanctions and implemented an arms embargo.”143 He notes that this example is significant in that “they all only acted after the ICC began their investigation.”144 Appel goes on to list several other instances where states and organizations distance themselves from

142 Jo and Simmons, “Can the International Criminal Court Deter Atrocity?”: 445. 143 Benjamin J. Appel, “In the Shadow of the International Criminal Court: Does the ICC Deter Human Rights Violations?,” Journal of Conflict Resolution 62, no. 1 (2018): 10, https://doi.org/10.1177/0022002716639101. 144 Ibid.

56 individuals and associated governments under investigation, all leading to the same point—the

International Criminal Court can have positive effects in its operation. In fact, deterring association with war criminals is an excellent way of making sure their actions are not normalized, thereby undermining them instead of the Court.

In addition to being perceived as neo-colonial, though, the International Criminal Court is also hamstrung in its abilities to deal with potential cases involving individual states that will not cooperate, further undermining it. These effects, though, pertain mostly to the state level, and there exists still another factor that complicates the prosecution of international criminals: the

United Nations Security Council itself. The UNSC is the most powerful arm of the United

Nations, dominated by the five governments145 victorious in World War II: China, France,

Russia, the U.K., and the U.S. Each of those states possesses a veto that can strike down any resolution brought before it. The Rome Statute allows for the application of jurisdiction in situations otherwise out of the ICC’s jurisdiction with Chapter VII referrals from the UNSC, which have happened a handful of times. This thesis has already discussed one such example, the resolution that gave the court jurisdiction over the situation in Sudan and has led to the stalemate over President al-Bashir. Even though the UNSC wields great power and thus shoulders significant responsibility for the well-being of the international community, it is still an entity subject to the interests of its constituents—chiefly the P-5.

Aidan Hehir and Anthony Lang, both scholars in the United Kingdom, have noted that in a perfect world, “perceived impartiality” is incredibly important for the legitimacy of an

145 The Republic of China no longer controls the Chinese mainland and was replaced at the UNSC by the People’s Republic of China and the Russian Federation is the main successor state to the Union of Soviet Socialist Republics.

57 institution “mandated to enforce law” like the UNSC currently does.146 They warn, though, that

“the UNSC is very obviously a body of states with particular national interests which have often inhibited the enforcement of the very international laws the body is charged with enforcing.”147

Connecting the dots, we see that a powerful international entity responsible for enforcing international law and norms is given the power to refer situations to ICC jurisdiction. That entity, though, is irreconcilably bound by the national interests of the states controlling it, meaning that any one of those controlling (P-5) states can, acting on their own interests, eliminate a referral to the Court that would jeopardize those interests.

This brings us to two case studies that this thesis will cover in great depth: of Libya and

Syria, two states that have earned draft resolutions on ICC referral to different outcomes. The next chapter will put these contemporary cases into context and argue that a change is occurring in modern international power dynamics may lead the international criminal justice system down the road to irrelevance.

146 Aidan Hehir and Anthony Lang, “The Impact of the Security Council on the Efficacy of the International Criminal Court and the Responsibility to Protect,” Criminal Law Forum 26 (2015): 159, https://doi.org/10.1007/s10609-015-9245-4. 147 Ibid.

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IV. (Contemporary Global Concerns) Limitations of the Court in the Face of Sovereignty

American opposition to participation in the International Criminal Court, along with the relative weakness for the Court to deal with stronger states that have a better ability to assert their sovereignty, defines the realities of permanent international criminal justice in Era II. This thesis, though, will argue that Era II is ending, in favor of a third era—“Era III”—that is seeing the primacy of American power in the international order wane. As noted earlier, Russia is on the rise once more as a military force in Eurasia. China itself sports a respectable military, but its unprecedented economic growth and recent assertion of its power on the international stage is also not to be taken lightly. The United States is no longer free to flex its muscles in a unipolar world; a time of bipolarity, or even tripolarity, is taking root. When there last was a defined counterbalancing power in the international order, international criminal justice was paralyzed on all ends. There were no ad hoc tribunals, and there certainly was no permanent tribunal, as

Chapter II discussed in detail.

Competing interests in the international order now stand to further paralyze a system that is already highly restricted. Stepping away from the jurisdictional issues of the ICC, even

Chapter VII referrals to the Court stand at risk of multipolar international politics in Era III. To explain this assertion, this thesis invokes the cases of Libya and Syria, two situations of note to

UNSC attempted referrals. Libya represented a successful referral in 2011, while just three years later, despite the humanitarian situation being arguably much worse, the UNSC was unable to come to an agreement for a Chapter VII referral of the situation to the International Criminal

Court. Not only does this failure have implications for the future of applying international

59 criminal law via Chapter VII referral to the ICC, but it also indicates a potential greater inability to even establish future ad hoc tribunals that may become necessary at the UNSC—or any other measure at the Council intended to apply some sense of justice or worse, to just keep the peace.

The Failure of International Criminal Law to Protect Human Rights Everywhere

While the advent of a permanent International Criminal Court has moved international criminal justice in the right direction, it has thus far failed to stem the kinds of atrocities that had necessitated its founding. This thesis has discussed several of the cases that the ICC has taken up since its operations began in 2002, including those pertaining to various atrocities committed during catastrophic civil conflicts. Most of those conflicts were the result of isolated and insular problems within the afflicted state, but at the beginning of the 2010s, a different kind of wave of civil strife hit. The Middle East and North Africa (MENA), which had been previously home to several autocratic regimes focused on the despotic individual at the top, became a hotbed for protests and reform movements that would be known collectively as the “Arab Spring.” The effects of the Arab Spring were unequal in the MENA region, with some states shedding their leadership quickly, others resisting change, and others still crumbling into civil war. Two cases that fall into the lattermost category, Libya and Syria, ended up at the subject of intense debates over the jurisdiction of international criminal law clashing with the universal concept of sovereignty that has reigned supreme for centuries.

When the Arab Spring unfolded, both Libya and Syria were hit hard. While the war in

Libya ended not long after, the war in Syria continues to this day and proves to be an

“extraordinarily brutal” one—U.N. Secretary-General Ban Ki-Moon said as much of the crisis in

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2014, as reported by The Guardian.148 In early 2011, the UNSC passed Resolution 1970

(S/RES/1970 [2011]), which officially referred the situation in Libya to the International

Criminal Court.149 This was a significant development in the UNSC. Even those P-5 states who are not state parties to the Rome Statute agreed to legitimize the Court by referring a situation with dire human rights implications to it. While this can be deemed as another example of neo- colonialism in Africa, it can equally be regarded as a genuine international effort to bring war criminals to justice in a country utterly imploding. Any one of the P-5 states could have invoked their veto as a matter of state interests or even to undermine the institution, but none did. The war ended without Muammar Ghaddafi ever appearing in The Hague (as he was killed in Libya),150 but his son is still charged with war crimes, and should he ever appear again, there is an arrest warrant waiting for him151 to eventually bring him to justice.

Conversely, after three years of civil war in Syria, the UNSC in May of 2014 attempted to replicate the successful referral it had agreed upon in 2011. According to The Guardian,

“Russia and China […] vetoed [the] draft UN resolution calling for the crisis in Syria to be referred to the international criminal court,” with Russia’s ambassador referring to “the vote as a

‘publicity stunt’.”152 In this case, certain members of the Council’s P-5 acted more in their interests than in the interest of the international community, as Hehir and Lang warned that they have a tendency to do.153 Two of the individual states with veto power decided it was not in their

148 Ian Black, “Russia and China Veto UN Move to Refer Syria to International Criminal Court,” The Guardian, May 22, 2014, sec. World, https://www.theguardian.com/world/2014/may/22/russia-china-veto-un-draft-resolution- refer-syria-international-criminal-court. 149 United Nations Security Council, United Nations Security Council Resolution 1970 (2011) [S/RES/1970]. 150 International Criminal Court, “Situation in Libya,” International Criminal Court, n.d., https://www.icc- cpi.int/libya. 151 International Criminal Court, “Gaddafi Case,” International Criminal Court, n.d., https://www.icc- cpi.int/libya/gaddafi/Pages/default.aspx. 152 Black, “Russia and China Veto UN Move to Refer Syria to International Criminal Court.” 153 Hehir and Lang, “The Impact of the Security Council on the Efficacy of the International Criminal Court and the Responsibility to Protect”: 159.

61 interest, or in their perceived interests of the global community, to have the International

Criminal Court investigate possible crimes in Syria. Russia specifically acted in its own interests, having maintained relations with Syria since Soviet times, according to the BBC Newsbeat, and keeping its role both in the war and in the Middle East in general beyond the Court’s scrutiny.154

Altogether, state interests at the UNSC halted a Syrian referral in 2014 that would have been like the passed Libyan referral of 2011.

While the Libyan referral cannot be credited with ending the war in a swift fashion, it nonetheless demonstrated an international respect for the enforcement of human rights norms.

The failed Syrian referral demonstrated the opposite: that to some, the enforcement of human rights norms is not as important as national interests are, and it is worth allowing millions upon millions to be displaced, hurt, or killed without anyone facing international justice for any egregious crimes which may have occurred. Again, the ICC’s inability to act in dire situations like these outside of its jurisdiction is severely damaging for it, and it further undermines its mission; how can the Court possible say it is fighting impunity if it is not allowed to touch one of the most horrific civil wars of our time? Further, complaints that the ICC acts as a neo-colonial agent will not get any better if it is perceived to ignore heinous breaches of human rights norms in places like Syria to instead focus even more on situations in Africa.

Libya, Syria, and the International Criminal Court: Case Studies

Of the human rights catastrophes currently occurring, arguably none has entailed more chaos and externalities as had the continuing civil war in Syria. Millions have died, and millions more have been displaced both internally and externally, compounding an already grim international migration crisis. It is a conflict that actively dates to the Arab Spring, around the

154 Imran Rahman-Jones, “Why Does Russia Support Syria and President Assad?,” BBC Newsbeat (blog), April 11, 2017, http://www.bbc.co.uk/newsbeat/article/39554171/why-does-russia-support-syria-and-president-assad.

62 same time as the start to the civil conflict in Libya. Both conflicts have involved autocratic leaders who targeted their own protesting civilians, and both have attracted the attention of powerful intervening states. By the eve of the Arab Spring in 2010, both countries had similar life expectancies (71.64 for Libya and 72.11 for Syria),155 and in the lead-up to that period both had relatively similar and solid Gross Domestic Product (GDP) growth rates (average rate from

2004-2007 for Libya was 7.30%, for Syria was 5.95%).156 Syria has always been the larger of the two in terms of population,157 while Libya has tended to be economically stronger in terms of

GDP and Gross National Income (GNI).158 Nonetheless, the similarities between the two cases cannot be understated and, given the decision to intervene with international criminal law only in one of those cases, a rigorous analytic approach is required to capture the motivations underlying reality.

The Human Development Index, a score that combines indices pertaining to leading a long and healthy life, education, and standards of living, helps to give a more multi-dimensional view of these two cases.159 On this scale, Libya has far exceeded Syria. The following graph

(Figure 1) is a simple comparison of the two in 2010, on the eve of the Arab Spring to 2017— several years after the beginning of hostilities in Syria and the passage of S/RES/1970 allowing for an ICC investigation into Libya.

155 World Bank, “Life Expectancy at Birth, Total (Years): Libya and Syria,” n.d., https://data.worldbank.org/indicator/SP.DYN.LE00.IN?locations=SY-LY. 156 World Bank, “GDP Growth (Annual %): Libya and Syria,” n.d., https://data.worldbank.org/indicator/NY.GDP.MKTP.KD.ZG?locations=SY-LY. 157 World Bank, “Population, Total: Libya and Syria,” n.d., https://data.worldbank.org/indicator/SP.POP.TOTL?locations=SY-LY. 158 World Bank, “GDP (Current US$): Libya and Syria,” n.d., https://data.worldbank.org/indicator/NY.GDP.MKTP.CD?locations=SY-LY; World Bank, “GNI (Current US$): Libya and Syria,” n.d., https://data.worldbank.org/indicator/NY.GNP.MKTP.CD?locations=SY-LY. 159 United Nations Development Programme (UNDP), “Human Development Indicators and Indices 2018 Statistical Update: Reader’s Guide,” Human Development Reports, n.d., http://hdr.undp.org/en/content/human-development- indicators-and-indices-2018-statistical-update-readers-guide.

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Figure 1. Human Development Index (Libya and Syria, 2010-2017) 0.8

0.75

0.7

0.65

0.6

0.55

0.5

0.45

0.4 2010 2012 2014 2015 2016 2017

Libya Syria

Source: UNDP160 The United Nations Development Programme notes that HDI classifications are divided into quartiles that roughly denote the development of the state in question based on its score.161 Both

Libya’s and Syria’s numbers declined after the onset of the Arab Spring and their correlated civil conflicts, but Libya never dropped below more than 0.007 points below the “high human development” classification (0.700 or higher)162 and managed to resurface above that line in

2017. Syria, meanwhile, has never hit the “high human development” classification as it has never reached the 0.700 line, and after 2014 it has been below the 0.550 line that delineates the border between the “low human development” and “medium human development” classifications.163 With a population as large as Syria’s is, 18,269,868 people (as of 2017, reported by the World Bank),164 such continuously deteriorating scores on the HDI obviously

160 United Nations Development Programme (UNDP), “Human Development Index Trends, 1990-2017 (Dataset),” n.d., http://hdr.undp.org/en/composite/trends. 161 United Nations Development Programme (UNDP), “Human Development Indicators and Indices 2018 Statistical Update: Reader’s Guide.” 162 Ibid. 163 Ibid. 164 World Bank, “Population, Total: Libya and Syria.”

64 speak to a continuously deteriorating quality of life in the country. This is compounded with a precipitous drop in Syria’s large population throughout the course of the war; the World Bank notes that at its peak in 2010, Syria’s population had been over 21,000,000 people.165 In the seven years between 2010 and the World Bank’s most recent population estimates in 2017, Syria had lost nearly 3,000,000 people either as casualties of war or as international migrants or refugees.166 That is, of course, not counting those people who remain in the population count that have been internally displaced within the country.

Figure 2. Internally Displaced Persons in Libya and Syria, 2012-2017 9000000 8000000 7000000 6000000 5000000 4000000 3000000 2000000 1000000 0 2012 2013 2014 2015 2016 2017

Libya Syria

Source: UNHCR167 The sheer carnage of civil conflict in both cases is staggering. Both have resulted in large numbers of people internally displaced (IDPs) within their respective state as well as displaced outside of it. Figure 2 contains statistics from the United Nations High Commissioner for

165 Ibid. 166 Ibid. 167 United Nations High Commissioner for Refugees, “UNHCR Population Statistics - Data - Persons Of Concern: Internally Displaced Persons (IDPs) Originating from and Living in Libya and Syria, 2012-2017,” n.d., http://popstats.unhcr.org/en/persons_of_concern.

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Refugees (UNHCR) population statistics database pertaining to IDPs in the years since the beginning of the Arab Spring. The data indicates that there have been far more IDPs within Syria than there have been in Libya throughout the course of the post-Arab Spring period; it must be noted, though, that at least some part of the visual discrepancy seen in Figure 2 can be ascribed to the difference between Syria’s larger and Libya’s smaller population. Nevertheless, as a proportion of the total population, Syria’s IDP numbers are alarming. Figure 3. IDPs as % of Total State (Year) Total Population IDPs Population Libya (2014) 6,204,108 363,067 5.85 Libya (2017) 6,374,616 180,937 2.84 Syria (2014) 19,203,090 7,632,500 38.34 Syria (2017) 18,269,868 6,150,005 33.66 Sources: World Bank, UNHCR168

Take the data from 2014 and 2017 into deeper consideration. Figure 3 compares data from the UNHCR database and from the World Bank to better register the impact of civil conflict in two states of varying population sizes. It demonstrates that Syria is the larger country by around three times the population of Libya, but yet as a percentage of those total populations,

IDPs reached nearly 40% of Syria’s population size, whereas IDPs in Libya have never hit 6% of the population.169 While Syria’s percentage declined in recent years, it is still perilously high; to have over a third of a country’s populace internally displaced speaks to the unabated human rights catastrophe in Syria continuing without fail.

In addition to those people internally displaced within Libya and Syria, millions more have fled from those states in the wake of the post-Arab Spring unrest. According to the

168 World Bank, “Population, Total: Libya and Syria;” United Nations High Commissioner for Refugees, “UNHCR Population Statistics - Data - Persons Of Concern: Internally Displaced Persons (IDPs) Originating from and Living in Libya and Syria, 2012-2017.” 169 Note that while Libya’s percentages are low and while this thesis seeks to highlight the severity of Syria’s crisis, it behooves the reader to know that any percentage of IDPs existing within a state is cause for concern. In highlighting the plight of Syria, this thesis does not aim to minimize that of Libya.

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International Organization for Migration (IOM), Syria is the state with the highest number of refugees by country of origin overall, at 6.3 million people in 2017.170 That number has increased with consistency since the beginning of the civil war, and as the war continues, it is unlikely that it will decrease.171 Libya also had a steep rise in refugees leaving the country after the conflict began, rising from 2,300 to 5,300 from 2010 to 2012, only to fall back down to 3,300 refugees in

2013,172 a little over a year into the transitional administration that followed Gaddafi. That number would again rise with consistency up to 11,200 refugees from Libya in 2017,173 which is correlated with the separate civil conflict continuing in that country.

It is clear that the situation in Syria is grim, certainly equal to if not more so grim than the situation in Libya earlier in this decade. While civil conflict continues to this day in Libya,

Gaddafi’s autocratic and oppressive regime is long gone. Gaddafi was deposed just months after the passage of S/RES/1970 in early 2011. That arguably would have occurred regardless of the resolution. Any kind of international agreement, however, to condemn Ghaddafi with an ICC referral would have added legitimacy to the ICC and some sense of immediacy toward an end; in the Libyan case, the international community united behind a consensus that Muammar Gaddafi was targeting his own citizens and was an existential threat to those people. While the

International Criminal Court never had him in his custody, its stigmatizing him (as well as his son) defined him as a war criminal. While this approach has not worked for all those under indictment, especially state leaders like Omar al-Bashir, it has in the very least sparked varying

170 International Organization for Migration, “Migration Data Portal Statistics: Refugees by Country or Region of Origin (Total),” Migration Data Portal, n.d., https://migrationdataportal.org/data?t=2017&i=refug_origin&m=4. 171 International Organization for Migration, “Migration Data Portal Statistics: Refugees by Country or Region of Origin (Syria),” Migration data portal, n.d., https://migrationdataportal.org/data?t=2017&i=refug_origin&cm49=760. 172 International Organization for Migration, “Migration Data Portal Statistics: Refugees by Country or Region of Origin (Libya),” Migration data portal, n.d., https://migrationdataportal.org/data?t=2017&i=refug_origin&cm49=434. 173 Ibid.

67 levels of international ostracization for accused war criminals. It is due to a renewed clash of sovereignty and international criminal law that Bashar al-Assad is not subject to the same universal condemnation that came down on Gaddafi and al-Bashir.

This inability for the P-5 to refer the Syrian situation to the International Criminal Court, moreover, bodes poorly for the future of international criminal law as a greater system. Some of the more successful examples of international tribunals that have applied such law are the ad hoc courts, like the ICTY, ICTR, and Special Tribunal for Lebanon. This thesis discussed the former example in greater depth, but all three tribunals were established via UNSC resolution that invoked its vested Chapter VII privileges; the same method used for Council referrals to the ICC.

Logically speaking, the lack of ability (and, perhaps, will) to compromise on the Syria issue indicates that it is unlikely that it will be addressed in any mode by an international criminal tribunal.

International Criminal Law v. Sovereignty: An Unwinnable Fight?

Although ad hoc international criminal tribunals and the International Criminal Court now exist—which is a substantial feat given the gridlock the idea of international criminal law was met with earlier—this thesis has shown that the latter has failed to garner the legitimacy necessary in order to truly meet its goals. This is evidenced by the lack of participation and regard on the part of the largest powers in international politics since the establishment of the

United Nations, who have contributed in large part to the uneven distribution of justice with regards to Libya and Syria. The lack of participation by the United States, whose initial enthusiasm early in the twentieth century discussions helped to put the issue on the map, is matched by a lack of participation from China and Russia. The three together encompass three fifths of the permanent five (P-5) members with veto power at the UNSC. In 2017, all three

68 combined a GDP PPP of $46.509 trillion, or over 36% of the number for the entire world for that year.174 These three states combined, particularly China and the United States, are economic powerhouses. They are prominent forces in the global economy and, in the eyes of some, enjoy certain privileges therein that smaller economies may not have. They have the ability to conduct with other states and each other—as evidenced by the current trade war between China and the United State—and substantially affect the global economy in the process.175

In addition to sheer economic power, the Americans, Chinese, and Russians possess a great deal of hard power. Of the 2017 world military expenditures, Washington, Beijing, and

Moscow combined accounted for over 53% of the $1.701 trillion dollars spent overall.176 The

United States itself accounted for just under 36% of that total.177 These states possess an enormous degree of military capacity with which they can build up arms or even embark on military excursions. Not only did these three states, along with France and the United Kingdom, create the international rulebook, but they also wield substantial economic and military power to bend the rules.

The problems that the International Criminal Court and international criminal law face, including with regards to Libya and Syria, are thus tied together with international power brokers at the United Nations Security Council as well as those that make the rules by which the Court is mandated to follow. The entire system is entirely dependent upon the will of powerful sovereign

174 World Bank, “GDP PPP, 2017 (Current International $): World, China, Russia, United States,” World Bank, n.d., https://data.worldbank.org/indicator/NY.GDP.MKTP.PP.CD?locations=RU-US-1W-CN. 175 Enda Curran and Katia Dmitrieva, “World Economy Is Set to Feel the Delayed Trade War Pain in 2019,” Bloomberg, December 25, 2018, https://www.bloomberg.com/news/articles/2018-12-25/world-economy-is-set-to- feel-the-delayed-trade-war-pain-in-2019. 176 World Bank, “Military Expenditure, 2017 (Current USD): World, China, Russia, United States,” World Bank, n.d., https://data.worldbank.org/indicator/MS.MIL.XPND.CD?locations=1W-US-CN-RU. 177 Ibid.

69 states that will be, at one point or another, inherently conflicted in their judgment of a situation based on their own interests. The ICC itself presents a flawed system, but it is also a system that was designed to be difficult to change or replace. Given modern transnational trends of populism, disregard for human rights, flouting of the traditional international order, and outright revanchism that is coming to a fever pitch with the waning of unipolarity in the international order, the ICC’s shortcomings may portend an even greater disregard for the agreed-upon principles of international criminal law as a means for enforcing human rights norms.

This alarming possibility hinges both on how national sovereignty is exercised on the international stage and how international criminal law deals with it. In the current system, a state’s decision to waive its privileges of sovereignty is necessary in order to establish any sort of jurisdiction for the ICC, a phenomenon that logically places all power in the hands of the state.

The Court, in best case scenarios, thus exercises its jurisdiction by the blessing of states that have delegated it the power to do so, namely those that feel vulnerable to the crimes covered by the

Rome Statute and those that do not feel as if their interests are threatened by the Court. To states not party to the Rome Statute that consider their interests to be at greater risk through inclusion in the ICC, there is neither any larger power to coerce joining nor any incentive to join the organization voluntarily. There are no supranational bodies with absolute power that can order either Russia, China, or the United States, for example, to ratify the Rome Statute.

Syria’s main ally, Russia, has played a major part in keeping the situation there especially dire. President Bashar al-Assad, who fits the role as an autocratic leader targeting parts of his own countrymen (like Ghaddafi and al-Bashir), remains in control, in part due to Russia’s influence in the region. In 2016, then-Director of National Intelligence James Clapper told

Congress that Russia’s involvement in the region—the first such involvement “since [Russia’s]

70 humiliation in Afghanistan 35 years ago”—was a show of military confidence.178 Its involvement showed the world that Russia is a force to be reckoned with and that it has vested interests in pushing its own solution in the region. Given all of Russia’s military involvement in

Syria, why would the Russian government ever consider a Chapter VII referral of Bashar al-

Assad, or any other officials it supports militarily?

If the situation in Syria were ever to somehow come under ICC scrutiny, Russian military elements would invariably be a factor in any subsequent investigations. In fact, there is already a situation under investigation at the ICC involving Russian military elements.179 As mentioned in

Chapter III, the ICC Prosecutor opened a proprio motu investigation on January 27, 2016 into alleged crimes against humanity and war crimes committed as part of an armed conflict in

Georgia.180 The current investigation involves international crimes allegedly involving Russian military personnel (which could be interpreted as aggression) but has yet to produce any indictments.181 It remains to be seen if any indictments will arise from this particular investigation, but if one does arise pertaining to a Russian national, it is highly unlikely that the

Court will be able to pressure the Russians or any other state hosting that national to surrender him or her. While it may not possess the same economic power that China and the United States do, Russia does command respect for its military capabilities. For another state to surrender a

Russian national to an international tribunal to which Russia is not a party would not bode well for future relations between that state and the Russian Federation.

178 David E. Sanger, “Russian Intervention in Syrian War Has Sharply Reduced U.S. Options,” The New York Times, February 10, 2016, sec. World, https://www.nytimes.com/2016/02/11/world/middleeast/russian-intervention- in-syrian-war-has-sharply-reduced-us-options.html. 179 Georgian territory falls under the nominal jurisdiction of the International Criminal Court and is thus not constrained by the same limitations that hold back potential investigations in Syria. 180 International Criminal Court, “Georgia.” 181 Ibid.

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Russia would never allow a referral of Syria to happen. Under the current rules in place and the current power structures of the United Nations, despite the severity of the conflict, the situation in Syria will never be investigated by the International Criminal Court.

Nor would the United States allow its citizens to be put at risk given its at-times aggressive military stances both before and after the ICC began operations. The dropping of atomic bombs on two Japanese cities, for example, represented blatant and indiscriminate attacks on civilian population centers that would certainly represent a crime against humanity as defined by the Rome Statute.182 According to Wilson D. Miscamble, the attacks killed upwards of

100,000 people in Hiroshima alone, while many of the injured there “died soon thereafter from the effects of their exposure to the radioactivity let loose by the explosion.”183 At the time, U.S. officials justified the attack as a necessary evil to prevent the deaths of thousands of Americans and other Allied troops as part of a ground invasion, to prevent the execution of POWs held by the Japanese, and to prevent “a quarter of a million Japanese deaths in an invasion.”184 Using atomic weaponry was, put simply from the American perspective, a necessary evil to prevent more bloodshed.

The pursuit of American military interests has often followed that path since the end of

World War II. Its robust presence on the international stage led to cries of aggression in Korea

(as discussed in Chapter II), the horrors of guerilla conflict in Vietnam, and the realities of the continuing Global War on Terror. The U.S. invaded Iraq and Afghanistan as part of the latter campaign in the early-2000s, following the 9/11 terror attacks that killed thousands of Americans

182 International Criminal Court, “Rome Statute”: Article 7. 183 Wilson D. Miscamble, The Most Controversial Decision: Truman, the Atomic Bombs, and the Defeat of Japan (New York: Cambridge University Press, 2011): 94, http://ebookcentral.proquest.com/lib/brandeis- ebooks/detail.action?docID=691839. 184 Ibid., 113-14.

72 in New York. It had deemed that these were vital to the national security interests of the United States, which then found itself doing some reprehensible things in the name of the continued security of the country. Some of those things were of interest to the International

Criminal Court, which enjoys jurisdiction over alleged abuses taking place in Afghanistan. As this thesis discussed in Chapter III, the Court opened a preliminary investigation into alleged crimes against humanity and war crimes committed on Afghan soil since May 1, 2003— including any war crimes allegedly committed by American nationals.185 In the event this preliminary examination becomes a full situation under investigation and subsequently produces indictments of American nationals, it is equally if not more unlikely that any American would be brought before the Court. The United States obviously would not surrender a national under its own volition, and it could certainly punish any other state that surrendered an American national to the Court either through powerful economic or military measures.

In Iraq, where the Court does not enjoy such jurisdiction American military personal found itself in a similar situation of alleged human rights abuses. This reference is to Abu

Ghraib, a prison where “now-infamous photographs […] documented acts of abuse committed by U.S. Army Military Police (MP) Corps personnel.”186 In their 2010 piece to American

Ethnologist, Steven C. Caton and Bernardo Zacka of Harvard University note that the abuse of prisoners was “systematic” and violated international conventions with regularity.187 They explain that this behavior among MPs was normalized and, in quoting the ICRC, say that

“‘These methods of physical and psychological coercion were used by the

185 International Criminal Court, “Afghanistan.” 186 Steven C. Caton and Bernardo Zacka, “Abu Ghraib, the Security Apparatus, and the Performativity of Power,” American Ethnologist 37, no. 2 (May 2010): 283. 187 Ibid., 285.

73 in a systematic way to gain confessions and extract information.’”188 While there is some debate as to who ultimately was culpable for the abuses at Abu Ghraib, the result is the same; if the

United States (or Iraq) were subject to the jurisdiction of the ICC, events described at the prison would likely be of interest to the Court.189

Operating in the current ICC paradigm, if either Iraq or the United States were to somehow come under the jurisdiction of the Court, American military elements—like Russian military elements in Syria today—might be investigated for abuses allegedly committed during the war. Considering the power dynamics between the ICC and sovereign states with interests that conflict with it, it is highly unlikely that this situation will be investigated as well.

China would also likely flex its economic or military muscles if any of their nationals ended up before the Court as well. Thanks to the sheer economic and military power of these three states, it would be all but impossible to haul any one of their nationals before the ICC. As states that are not party to the Rome Statute, they bear no obligation to surrender their own nationals. Certainly no state that fears the retaliation that would come upon them would surrender an American or Russian or Chinese national indicted by the Court. These three states live above the standards of international criminal law due to their power and relationship with the Court. They legitimize the notion of not being a party to the Rome Statute and thereby delegitimize the Court of any sway it could have if those states were under its jurisdiction.

***

A hallmark of national-level legal systems is the sway that a court’s opinion can have on the application of law in any one state. The United States’ Supreme Court, for example, has the

188 Ibid. 189 Refer to International Criminal Court, “Rome Statute”: Article 8. The Rome Statute explicitly notes that “grave breaches of the ” may constitute war crimes, including [8(2)(a)(ii)]: “Torture or inhuman treatment, including biological experiments.”

74 final say on whether any specific law or directive is constitutional. The International Criminal

Court, as commanding as its name may sound, does not have any of the force that a national court would have. In a state with a functioning legal system, that legal system is supposed to reign supreme over other government branches; regarding the ICC, a voluntary membership- based judicial organization, sovereign states reign supreme. It is for this reason that atrocities allegedly committed in Syria, despite the gravity of the situation, will probably not be prosecuted by the Court. The same can be said about Myanmar, a state that is also not party to the Rome

Statute and that is accused of committing acts of genocide against groups of its own people.190

While the Court has been able to exercise its jurisdiction in Afghanistan and Georgia, America and Russia are different. Due to the sheer power that these two powers can exercise on the international stage, it is unlikely that either of their nationals will ever appear in The Hague.

Permanent international criminal justice as we know it today is flawed, and the concept of equal justice for all certainly does not apply.

The Triumph of Sovereignty in an Era of Nationalism & Revanchism

Over two decades have passed since the fall of the Soviet Union ushered in Era II, an era once-teeming with possibilities for international criminal law: a field given life following the horrors of World War II but immediately frozen thereafter as a causality of the Cold War. The ad hoc tribunals of the early-1990s showed the world that substantial agreements could be reached pertaining to the prosecution of war criminals on an international stage, and that the ideological conflicts that had for so long hindered international criminal law’s emergence were on the retreat. As the 1990s progressed, it seemed that the support (and need) for a permanent mechanism for international criminal law grew as well, especially from the large liberal

190 Human Rights Watch, “Rohingya Crisis,” Human Rights Watch, n.d., https://www.hrw.org/tag/rohingya-crisis.

75 democracies at the helm of the international order itself. The Rome Statute gave the international community what it had long-strived for in the years following World War II: an international criminal code from which a permanent international criminal tribunal could operate. Alas, the same international politics that hindered international criminal law’s growth then would soon hinder it again; the United States’ decision to back away from the Rome Statute, as well as

Russia’s and China’s respective decisions to similarly steer clear, left gaping holes in the Court’s jurisdiction as well as in its legitimacy, as any international crime that could prospectively involve any of those states (as well as any other state not party to the Rome Statute, like Syria and Myanmar) would likely go unpunished.

As destructive as they were, these gaps in legitimacy and jurisdiction were mitigated somewhat in the 2000s and into the early-2010s by the relatively disciplined and measured approaches taken by powers that had the ability to act with some degree of impunity. While that period was not universally peaceful, much has changed since the early-2010s. Consider the following changes as indicative of the shift referred to as Era III:

1. In March of 2012, Vladimir V. Putin, the second President of the Russian Federation,

took power for a third term after an election tarnished with allegations of fraud.191 By the

end of 2014, President Putin’s government had annexed the Crimean Peninsula from

Ukraine. The majority of those that voiced their opinion on the issue at the United

Nations agreed with Ukraine’s protests.192 Putin’s government has also intervened in

eastern Ukraine, where locals have been openly rebelling against the Ukrainian power

191 Ellen Barry and Michael Schwirtz, “Observers Detail Fraud in Russian Election Won by Putin,” The New York Times, March 5, 2012, sec. Europe, https://www.nytimes.com/2012/03/06/world/europe/observers-detail-flaws-in- russian-election.html. 192 United Nations General Assembly, “68/262. Territorial Integrity of Ukraine” (United Nations, December 11, 1946), United Nations Official Documents, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/262.

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center in Kyiv.193 Putin’s government further faces accusations of being a bad actor on

the international stage, presumably seeking to sew discord, disunity, and overall chaos

domestically among western states and to weaken their alliances. It has allegedly (among

other things)

a. interfered in the United States’ 2016 presidential election with

campaigns in favor of the more Russia-friendly candidate, Donald J. Trump,194

b. interfered in the United Kingdom’s 2016 referendum on whether or not to leave

the European Union (commonly known as “Brexit”) with disinformation

campaigns in favor of the leave campaign,195

c. plotted to sew chaos on British soil and silence political enemies by poisoning an

ex-KGB spy and his daughter with a highly lethal nerve agent,196 and

d. instigated a plot in 2016 to overthrow the democratically elected government of

Montenegro and assassinate its Prime Minister in order to stop it from joining the

North Atlantic Treaty Organization (NATO).197

2. Meanwhile, in 2016 the People’s Republic of China ramped up its efforts to deal with

minorities living on its frontier, specifically the Uyghurs of Xinjiang Province; Human

Rights Watch (HRW) has detailed the increasing isolation of the region, the rise of

193 Jonathan Marcus, “Ukraine-Russia Clash: Nato’s Dilemma in the Black Sea,” BBC, December 4, 2018, https://www.bbc.com/news/world-europe-46425777. 194 Jonathan Masters, “Russia, Trump, and the 2016 U.S. Election,” Think Tank, Council on Foreign Relations, n.d., https://www.cfr.org/backgrounder/russia-trump-and-2016-us-election. 195 “Putin’s Asymmetric Assault on Democracy in Russia and Europe: Implications for U.S. National Security (A Minority Staff Report Prepared for the Use of the Committee on Foreign Relations, United States Senate)” (Washington, D.C.: US Senate, January 10, 2018): 116, https://www.foreign.senate.gov/imo/media/doc/FinalRR.pdf. 196 BBC News, “Russian Spy Poisoning: What We Know So Far,” News, BBC, October 8, 2018, https://www.bbc.com/news/uk-43315636. 197 Cristina Maza, “Exclusive: Russian Military Spies Backed Attempt to Assassinate Leader of Montenegro, Report Reveals,” Newsweek, July 3, 2018, https://www.newsweek.com/exclusive-russian-military-spies-backed-attempt- assassinate-leader-montenegro-1007324.

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internment camps that hold an estimated 1 million Uyghurs, and suppression of non-Han

identity.198 HRW’s report documented the aims of the camps through interviews with

detainees. One said that “we can no longer say Islamic greetings, but only [the Mandarin

greeting] ni hao; Uyghur restaurant signs cannot have Uyghur or Kazakh writings, only

Chinese characters;” and “Kazakh/Uyghur language schools are banned….”199 These

restrictions stand to violate the human rights of Uyghurs (and any other group they are

applied to) should the Chinese government be truly enforcing them on a wide scale, so

much so that they may constitute some of the crimes against humanity codified in the

Rome Statute.200

3. In 2017, newly elected President Donald J. Trump quickly took a more pugnacious

approach toward the international system of alliances and institutions that the country

had built. Already averse to the concept of the International Criminal Court going back

two more administrations, the United States has since adopted a more combative stance

toward the institution, threatening to sanction, ban, and even prosecute important

individuals working for the Court201 and to deny visas to certain staffers working on

cases that the administration disagrees with.202 Among other things, under President

Trump the U.S. has become more willing to turn a blind eye to human rights abuses (like

198 Human Rights Watch, “‘Eradicating Ideological Viruses’ | China’s Campaign of Repression Against Xinjiang’s Muslims,” Human Rights Watch, September 9, 2018, https://www.hrw.org/report/2018/09/09/eradicating- ideological-viruses/chinas-campaign-repression-against-xinjiangs. 199 Ibid. 200 See: International Criminal Court, “Rome Statute”: Article 7. 201 Bowcott, Owen, Oliver Holmes, and Erin Durkin. “John Bolton Threatens War Crimes Court with Sanctions in Virulent Attack.” The Guardian. September 10, 2018, sec. US foreign policy. https://www.theguardian.com/us- news/2018/sep/10/john-bolton-castigate-icc-washington-speech. 202 Human Rights Watch, “US Threatens International Criminal Court: Visa Bans on ICC Staff,” Human Rights Watch, March 15, 2019, https://www.hrw.org/news/2019/03/15/us-threatens-international-criminal-court.

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the murder of U.S.-based journalist and Saudi dissident Jamal Khashoggi)203 and to other

violations of the rules-based international order (vis-à-vis the administration’s approach

to Russia).204

These more recent developments are but a sample of the changes taking place within the international order. The United States, China, and Russia, which are now arguably the most powerful states in the world, are each veto holders at the UNSC. The U.S. has grown complacent to human rights violations and has employed bombastic rhetoric. Russia has engaged in revanchist military operations and sewed international chaos. China has persecuted of its own minorities. Worse, this is all happening at the same time. This is not to say that any of these three states sport an otherwise spotless record, but at such a critical juncture when human rights abuses continue to run rampant and the international criminal justice system struggles to handle them as is, the system simply cannot afford to have all three actively or passively undermining the international order.

These three major powers could together serve as the lightning rod that the dream of permanent international criminal justice needs to give it more legitimacy. By choosing to focus on domestic priorities and shunning the rules-based international order that has kept the peace since World War II, the major powers have taken up policies that run antithetical to the very values of the system. To see Russia returning to a bygone era of brinkmanship is one thing. It is another to see even the United States adopting such an ambivalent attitude toward the international order. These developments may be indicative of a new era—Era III—of cold war

203 The White House, “Statement from President Donald J. Trump on Standing with Saudi Arabia,” The White House, November 20, 2018, https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump- standing-saudi-arabia/. 204 Niels Lesniewski, “Trump Won’t Follow Congressional Directives on Russia and Crimea,” News, Roll Call, August 14, 2018, https://www.rollcall.com/news/politics/trump-wont-follow-congressional-directives-russia-crimea.

79 and impunity that could serve to shrivel the legitimacy and activities of the international criminal justice system to nothingness… all in a time where it has never been more badly needed.

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V. Conclusions

The quest for long-term international peace has, in the decades following the end of

World War II, included a dream for permanent international criminal justice. It is a dream that has been long pursued but also proven elusive. While the 74 years that have passed have seen the awakening of the evils of genocide and have seen humanity bring itself to the brink of extinction, the dream persisted. Despite the deadlock of the Cold War, it persisted. Despite the countless military campaigns carried out in the name of ideology and identity, it persisted. The international community never let the dream of permanent international criminal justice go, and, eventually, the waiting game paid off. It remains to be seen, though, if the dream has been truly actualized.

This thesis has described the problems facing the imposition of permanent international criminal justice through two eras as well as into a prospective third. These eras encompass periods of relatively static international power dynamics in the post-war order. Era I denotes a time of bipolarity—a time of domination by the United States on one end and by the Soviet

Union on the other. Because of the Cold War between the two powers, international agreement requiring UNSC approval was extremely difficult to come by, and practically impossible if it threatened the interested of either. Worse still, the proxy conflicts that would characterize the period raised high-stakes disagreements on ideological levels that would serve to cripple attempts to establish a universal idea of post-war international criminal justice.

Chapter II discussed a few of the problems that Era I faced through the lens of the discussions to establish a permanent international penal or criminal court, as had been prescribed

81 by Article VI of the Genocide Convention.205 There was an initial consensus on the desirability of such a system, especially after the successful prosecution of Axis war criminals and establishment of the United Nations. Unfortunately, the ever-present issue of aggression would become a hot-button topic of debate for American politicians as well as for delegates abroad attempting to construct that system of permanent international criminal justice. As soon as accusations of aggression were tossed between the Americans and Soviets during the Korean

War, and as soon as those animosities trickled into the halls of the U.S. Congress, the notion of permanent international criminal justice was to remain just that: a dream that would remain impossible to manifest.

The dream remained in that state until Era I came to a dramatic conclusion in the early

1990s. Soviet power had been waning beforehand, and its sphere of influence retreated away from its socialist periphery—best evidenced by the 1989 fall of the Berlin Wall. Just two years later, the Soviet Union collapsed, bring the bipolar power dynamics of the international order to an end. When Era II began, the United States held unparalleled power in the international order.

While Fukuyama’s post-Cold War “end of history” idea did not pan out and conflict continued to occur, the international community was freer to counter such violence as a united front without the world arranged into blocs polarized by ideology. When Yugoslavia fractured and descended into ethnic violence, the UNSC was able to establish an ad hoc international criminal tribunal to stigmatize and bring to justice those individuals responsible for war crimes, crimes against humanity, and genocide. Following Rwanda’s brief but brutal descent into genocide, the UNSC was able to do the same thing.

205 United Nations, “Genocide Convention”: Article VI.

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The establishment of these ad hoc courts was one step in the process of establishing a system of international criminal justice; restricted by statute in their jurisdiction, these tribunals were microcosms of what a more permanent tribunal’s work could look like. While that may be the case, their creation certainly helped to revive the dream of permanent international criminal justice as a possibility and helped set the precedent for a permanent tribunal. The International

Criminal Court was created by the 1998 Rome Statute, finally bringing that dream to fruition.

While the Court has demonstrated that a permanent international criminal tribunal can operate on a long-term basis, it also has its own failures. Chief among them is the uneven participation from powerful states (including three from the P-5: China, Russia, and the United

States), which renders it unable to deal with situations that may fall under its nominal jurisdiction but also involve the interests of those states. Situations that do not fall under that jurisdiction require referral at the state level or via Chapter VII referral from the UNSC. While states may refer situations in their own territory, they would never do so in a fashion that would implicate its own leaders. This indicates that self-referrals are made for the political gain of the referring state.

At the UNSC, a Chapter VII referral can grant the ICC jurisdiction over any given territory and case. Given any one of the P-5 (including China, Russia, and the United States) can veto a resolution at the UNSC, any successful referrals made in that fashion would require it to be either in the interests of those states or at least not threatening their interests.

The Court exercises its jurisdiction predominantly over situations in Africa, and all its convictions have been of African individuals.206 While those situations do feature severe and egregious violations of basic human dignity, ICC action is are decried as neo-colonial. The Court is perceived as maintaining a lopsided focus over Africa. That claim is not without merit; there

206 These convictions stem from the Al-Mahdi, Bemba et al., Katanga, and Lubanga cases discussed in Chapter III.

83 are situations that feature severe violations of human rights all over the world, but due to jurisdictional obstacles the ICC is unable to investigate or assert any jurisdiction. Even with the

United States remaining the most powerful of states in the international order in Era II, the development of international criminal justice has been limited. While happy to support justice overseas, the U.S. has always resisted international justice that could apply to its own soil.207 It never ratified the Rome Statute and has never been subject to the jurisdiction of the ICC. This is indicative of a wider American stance on aversion to international criminal justice when it cannot exert control over its processes.208 Era II is characterized by exceptional growth in the realm of international criminal law, but at the same time also reveals long-term issues regarding the clash between it and sovereignty.

This thesis has gone further, asserting that not only are the issues faced by international criminal law still pervasive, but also arguing that the international community has entered a new stage in its development—an Era III. In this period, the power dynamics characteristic of Era II are changing once again. The traditional main power, the United States, has retreated from defending human rights abroad and has taken a far more antagonistic approach to the

International Criminal Court.209 China and Russia, meanwhile, are gaining in power. Russia is doing so through its outward and clandestine military capacity, evidenced by its more malign alleged activities around the world of recent. China is doing so economically, set to become an economic powerhouse to rival and eventually outperform the West. As both grow more confident and as they assert more influence in the international order, the unipolarity characteristic of Era

207 United States Senate, Executive Session: International Convention on the Prevention and Punishment of Genocide - Wednesday, September 6, 1950: 2-5. 208 Cerone, “Dynamic Equilibrium”: 277. 209 Bowcott, Holmes, and Durkin, “John Bolton Threatens War Crimes Court with Sanctions in Virulent Attack;” Human Rights Watch, “US Threatens International Criminal Court: Visa Bans on ICC Staff.”

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II will quickly vanish, even further complicating any efforts to expand and/or fix the problems currently facing international criminal justice.

In China, an alleged operation is underway in Xianjiang Province to “re-educate” the local Turkic-speaking Muslim peoples (Uyghurs, Kazakhs, etc.). Human Rights Watch has decried violations of human rights in the re-education camps. In Syria, there is evidence to support human rights violations on the part of the al-Assad regime, but the international community has been unable to come to any consensus as to its possible adjudication in a body of international criminal justice.210 There is evidence to support the genocide of the stateless

Rohingya in Myanmar.211 Humanitarian catastrophes continue to occur, but in a time where an already-limited International Criminal Court is further constrained by an increasingly divided international order, effective international criminal justice may be becoming significantly harder to execute.

The dream of international criminal justice has not died. It has been through a lot since the post-war tribunals of Axis war criminals, and it may be well on the road to full realization.

The advent of an Era III, though, would put the dream back into doubt. A tripolar world order would certainly bring international dialogue back to the divisions of Era I—if not to a more extreme extent. Only time will tell how the system of international criminal justice will weather the perfect storm of U.S. antipathy, malign Russian activities, and the increasing prominence of

China (along with its international philosophies).

History tells us that fully realizing the dream—of ending impunity and of eradicating the scourge of human rights abuses—is within our grasp. In a time where international criminal

210 Black, “Russia and China Veto UN Move to Refer Syria to International Criminal Court.” 211 Human Rights Watch, “Rohingya Crisis.”

85 justice is so badly needed, though, it appears that it will remain just that for a while longer: a dream.

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