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International justice stands at a crucial crossroads, and as the 20th anniversary of the founding of the International Criminal Court (ICC) nears, there has never been a better time to take stock of the progress and challenges facing international justice. At its core, international justice is a recognition that sovereignty is not an absolute, and that some crimes—particularly genocide, war crimes, and crimes against humanity—are so profound that they must be prosecuted at an international level, particularly if a country where such crimes are committed lacks either the capability or the will to give such charges a fair hearing.

This report examines the relative track record of these international mechanisms to date, explores some of the challenges laid bare by their operations, and suggests some important paths forward in a deeply uncertain international political climate. The bottom line: Without robust support from international civil society and a steady effort to further professionalize these international justice mechanisms, the very real progress achieved over the past two decades is at considerable risk.

The first major use of an international criminal justice mechanism was the Nuremberg trials of Nazi war criminals following the end of World War II. More recently, over the past 25 years, international criminal justice—that is to say, the use of courts and investigative agencies staffed wholly or in part by international civil servants to try serious crimes—has evolved from an aspiration of human rights advocates to an important feature of the international landscape.

Beginning in 1993 with the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY), the United Nations has established tribunals with jurisdiction over war crimes and other human rights abuses committed in Bosnia, Croatia, Rwanda, Liberia, Sierra Leone, Lebanon, Cambodia, and East Timor. Along with the ICC—whose jurisdiction has been accepted by more than half the world’s nations, though the United States notably is not among the signatories—these bodies have collectively investigated more than 300 cases, indicted more than 700 individuals, and obtained more than 250 convictions.¹ Alongside these entities, a number of transnational courts and investigatory bodies now operate with the authority and support of regional political institutions—for example, the hybrid Senegalese-African Union tribunal that heard the case of deposed Chadian dictator Hissène Habré in 2017.²

In many ways, the evolution of international justice has been remarkably rapid during the past two-and-a-half decades, but it is also clear that this evolution has been highly uneven, often deeply controversial, and not entirely impartial in its application. There has been a considerable backlash against international justice mechanisms, particularly among African heads of state, who argue that they have been disproportionately targeted for prosecutions. Moreover, the ICC and the array of different tribunals have widely varied in their levels of professionalism and speed. These considerable growing pains are now coupled with the ascendency of U.S. President Donald Trump, who leads an administration eager to erode a broad array of many accepted international norms and practices. And then there are the very active pushes by the likes of President Vladimir Putin of Russia, President Rodrigo Duterte of the Philippines, President Recep Tayyip Erdoğan of Turkey, and President Xi Jinping of China to bend the rule of law to their own autocratic benefit.

Perhaps no moment symbolically captures the complicated legacy of the international justice system more than the November 2017 courtroom suicide by Bosnian Croat general Slobodan Praljak moments after judges at the ICTY upheld his conviction for crimes against humanity.³ Praljak’s dramatic suicide overshadowed the ruling of the tribunal and the opportunity to highlight the rendering of justice at the conclusion of 24 years of investigations and prosecutions, shifting the media’s focus to the recriminations and hard questions of the court’s critics.

The data examined in this report suggest several important trends in international justice. When it comes to enforcement, there has always been a great deal of handwringing that international justice lacks an enforcement mechanism for apprehending alleged war criminals. However, the apprehension and conviction rate of those charged with genocide, war crimes, and crimes against humanity is notable. Of the total investigations examined here, 717 individuals have been indicted. Of those indicted, 258 have been convicted, a conviction rate of 36 percent. These convictions include many notable big fish whom commentators were often skeptical would ever see the inside of a court room, much less be convicted. The list of those indicted includes Liberian President Charles Taylor, Bosnian Serb general Ratko Mladić, Congolese Vice President Jean-Pierre Bemba, Chadian President Habré, and former Yugoslav President Slobodan Milošević, who died while awaiting his trial in The Hague.⁴ And while to date, the ICC caseload has focused a good deal of attention on atrocities in Africa, the track record of the various international courts and tribunals examined, taken collectively, paint a picture of much greater regional diversity, with 35 percent of convictions coming from Europe, 34 percent coming from Asia, 31 percent coming from Africa, and 1 percent coming from the Middle East. The Middle East number will surely grow substantially in the future if justice is achieved for the atrocities committed in the ongoing Syrian conflict.

Syria itself poses a fundamental challenge to the credibility of these justice mechanisms moving forward. Battlefield atrocities and blatant attacks against civilians have been widespread. Syrian government forces, supported by Russian forces, have engaged in egregious attack after egregious attack, such as the frequent targeting of hospitals and continued use of chemical weapons. Moving justice forward in Syria, despite the severe difficulties in doing so, will be a clear benchmark for the effectiveness of international justice.

In examining the record of these respective tribunals, it is also clear that the wheels of justice have often turned slowly, in part because of the extreme intransigence of defendants and in part because of numerous operational and bureaucratic hurdles. In addition to being time-consuming, the more effective tribunals have not been inexpensive, nor should they be if they are to operate at a high professional standard. To operate at this level, courts need sufficient funding not only to pay for professional staff salaries but also to pay for intensive investigations—which often take place in difficult-to-reach and at times hostile locations—including travel, translation services, legal aid for defendants, office space rentals, witness protection, and more.

The relative competency and impartiality of these tribunals have varied greatly, and their composition and staffing represent an interesting mix of models, with some proving far more effective than others. In short, a review of tribunals and their track records suggest an international system that is learning on the fly, albeit with some real stumbles along the way. That said, these courts have had a real demonstration effect, and perpetrators are more aware than ever that they could be held responsible for their actions, even if it may take considerable time for such accounting to occur—which is a historic step forward.

It is also unsurprising that the positive trend toward accountability for the commission of heinous crimes has at times brought real political pushback and backlash. Most individuals would prefer not to be held accountable for their negative actions, and attacks against the legitimacy of these courts and tribunals are often the most expedient way to avoid justice.

Lastly, it has also become apparent that the Trump administration’s disdain for international norms and its willingness to erode the rule of law both at home and abroad represent a serious threat to a positive arc for international justice in the near and immediate terms. It will be far more difficult for international justice to progress if the United States is not only overtly hostile to the International Criminal Court but is also led by a president who is willing to look past profound human rights abuses around the globe while attacking the foundations of justice and law enforcement in his own country. Such behavior will also have its own demonstration effect around the globe, and it will be a deeply deleterious one.

The number of transnational criminal courts active today is a reflection of the international community’s sustained commitment to the principle of accountability for war crimes and other grave human rights abuses. It also illustrates the still rather ad hoc nature used to determine what justice mechanisms should apply in any given circumstance.

The United States, at least up until the current administration, has in some ways been a strong advocate for international criminal justice, providing financial support to many transnational criminal courts, both through U.N. member contributions and voluntary donations to specific institutions. In addition, the Obama administration participated in the International Criminal Court as an observer and pledged to cooperate with the body despite continued congressional opposition to the United States becoming a full party to the treaty establishing the ICC, known as the Rome Statute.⁵ As stated in the 2010 National Security Strategy, the United States believes that “the end of impunity and the promotion of justice are not just moral imperatives; they are stabilizing forces in international affairs.”⁶ The United States also appears to have shared DNA evidence, forensics, and case-related intelligence with the court in some instances. The fact that the United States has been one of the ICC’s most important supporters while also being its most high-profile nonsignatory is a considerable paradox.

The topline objectives of international criminal justice have made enormous strides over the past 25 years, particularly the idea that there should not be impunity for those conducting war crimes, crimes against humanity, or genocide. That said, the modalities of justice and the ability of existing institutions to deliver on their mandates and maintain a high level of legitimacy remain open questions.

The past two years have been eventful ones for transnational criminal courts, marked as they were by some important successes, some major reversals, and a number of important political and legal setbacks. On the positive side of the ledger, the ICC, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda (ICTR) secured the arrest and conviction of some of the key perpetrators of organized campaigns of violence against civilians in Africa and the former Yugoslavia, including former Congolese Vice President Jean-Pierre Bemba and former Bosnian Serb Republic President Radovan Karadžić.⁷ Bemba’s conviction also marked the first successful prosecution of rape before the ICC and the first application of the principle of commander responsibility for the actions of subordinate officers.⁸ Beyond the United Nations, former Chadian President Hissène Habré’s trial in an A.U.-sanctioned court was a watershed development for regional justice efforts in Africa.⁹

These accomplishments, while significant, are at risk of being overshadowed by other developments that have called into question the ability of transnational criminal courts to maintain high standards of professionalism, fairness, and objectivity. Chief among these has been the growing mood of hostility toward the ICC among African governments. This hostility was exemplified by the African Union’s February 2016 endorsement of a Kenyan plan for mass withdrawal from the court in response to perceptions that it has unfairly targeted African governments¹⁰—a plan that laid the foundation for the governments of Burundi,¹¹ South Africa,¹² and Gambia¹³ to pass legislation to quit the institution in October 2016. This in turn generated a counter-push of African support for the court. South Africa¹⁴ and Gambia¹⁵ reversed their positions, with South Africa’s effort halted on procedural grounds by the South African High Court, though the government again announced its intentions to withdraw from the ICC as recently as December 2017.¹⁶ Gambia’s change of heart occurred after the election of President Adama Barrow, ousting the repressive regime of Yahya Jammeh, who had ruled the country for 21 years.¹⁷ Additionally, following the launch of a preliminary examination into alleged crimes against humanity in his war on drugs, President of the Philippines Rodrigo Duterte announced his intention to withdraw the country from the ICC.¹⁸

Several other incidents have added to the general atmosphere of crisis around international justice. The ICTY’s failed prosecution of alleged Bosnian war criminal Vojislav Šešelj in March 2016—a full 13 years after he turned himself over to the court—led to numerous complaints of prosecutorial blunders.¹⁹ In addition, the effective stonewalling of the prosecution of former Khmer Rouge officials by current Cambodian officials, and the ongoing failure of the ICC to obtain the arrest of Sudanese President Omar al-Bashir,²⁰ have damaged the reputations of those institutions and highlighted the challenges that transnational criminal courts face when attempting to operate in hostile political environments.

These developments have occurred at a time when the broader landscape of international criminal justice is in transition, and a number of important tribunals have recently ended, or are near ending, their caseloads. At the end of 2015, the ICTR concluded its operations,²¹ and the ICTY concluded operations in December 2017.²² The Extraordinary Chambers in the Courts of Cambodia (ECCC) is likely to reach the end of its docket within the next three to five years. As these flagship institutions of international criminal justice close their doors, many voices have called for the creation of new tribunals to address more recent conflicts, primarily war crimes committed in the course of the conflicts in Syria, the Central African Republic, and South Sudan, as well as concerns regarding alleged ethnic cleansing of Rohingya in Myanmar. At the same time, the ICC has signaled a shift in direction by expanding its substantive remit beyond conventional human rights abuses to crimes of cultural destruction and, most recently, environmental crimes and forced evictions—a highly curious move given its failure to fully cement support for its core mandate.²³

While a comprehensive assessment of each tribunal is outside the scope of this report, it is helpful to examine some of each courts’ major contributions to international justice, as well as some of their important challenges.

International Criminal Tribunal for the former Yugoslavia (ICTY)

On May 25, 1993, the U.N. Security Council adopted Resolution 827 establishing the ICTY. The court was established during the various conflicts in the Balkans in response to mass atrocities and ethnic cleansing. Headquartered in The Hague, the tribunal was mandated to prosecute “persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace.”²⁴ The tribunal’s indictments addressed crimes committed from 1991 to 2001 in Croatia, Bosnia and Herzegovina, Serbia, Kosovo, and the Former Yugoslav Republic of Macedonia.²⁵ Total estimated deaths from the conflicts are more than 130,000, with more than 4 million people displaced.²⁶

The ICTY’s creation marked the first time that the United Nations initiated a war crimes court. It is also the first international tribunal to be held since the Nuremberg and Tokyo tribunals after World War II.²⁷ To wind down its mandate, the tribunal’s judges created a “completion strategy,” which, according to its website, centered on prosecuting and bringing to trial leaders of the most senior ranking, while referring a certain number of cases that involve intermediate and lower-ranking defendants to national courts in the former Yugoslavia.²⁸ The strategy had originally set a 2010 completion date, but due to some late arrests—the latest occurring in 2011—the tribunal did not complete its work until December 2017, after almost a quarter century in operation.²⁹ The total estimated costs of the tribunal were more than $2.3 billion.³⁰

Turning first to metrics for those indicted by the tribunal, the ICTY can claim a significant victory: Of the 161 individuals indicted, none remain at large.

Of those 161 individuals:

• 90 were convicted.
• 2 are on retrial before the Mechanism for International Criminal Tribunals (MICT).³¹
• 19 were acquitted.
• 13 were transferred to countries in the former Yugoslavia.
• 20 had proceedings terminated or indictments withdrawn.
• 17 died prior to, or during, their trials.³²

The tribunal has been criticized for not indicting a number of key players in the war, including Borisav Jović, a former Yugoslav president who appeared to implicate himself in his memoirs.³³ Additionally, the tribunal has been accused of unfairly targeting Serbs for indictments—Serbs made up roughly 60 percent of those indicted. ³⁴ However, indicted individuals also included Croats, Bosniaks, and Kosovar Albanians, and there did seem to be a deliberate attempt by prosecutors to hold parties from every ethnic group responsible for their actions during the conflict. A reasonable case can be made that Serbs faced a higher number of charges at the court because they were associated with a higher number of very serious incidents, such as the massacre at Srebrenica, where more than 7,000 Bosniak boys and men were killed by Bosnian Serb forces.³⁵ Additionally, a special national court known as the Specialist Chambers was established in Kosovo through the European Union and Kosovo national legislation in 2015 to investigate alleged crimes between January 1, 1998, and December 31, 2000.³⁶ Much of the court’s focus will be on alleged atrocities committed by the Kosovo Liberation Army guerillas against ethnic Serbs.³⁷

Looking more closely at specific cases, much of the ICTY’s legacy will likely come from landmark cases that addressed brutal sexual and gender-based violence used during the conflicts. More specifically, the Duško Tadić case, in which Tadić—a former Bosnian Serb politician—was found guilty of cruel treatment and inhumane acts against detainees in Prijedor, marked the first time an international war crimes trial involved charges of sexual violence—specifically highlighting sexual violence against men.³⁸ In the Mucić et al. case ruling, in which three of the four accused—Zdravko Mucić, Hazim Delić, and Esad Landžo—were charged with sexual violence against civilians in a prison camp in Čelebići, rape was recognized for the first time in an international tribunal as a form of torture.³⁹ This also made rape “a grave breach of the Geneva Conventions and a violation of the laws and customs of war.”⁴⁰ Additionally, this case set a legal precedent by finding a superior officer guilty of crimes committed by his subordinates.⁴¹ In its ruling on the Kunarac et al. case, in which the three accused—Bosnian Serb army officers Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković—were charged with sexual violence for their “role in organising and maintaining [a] system of infamous rape camps,” the tribunal also broadened the definition of enslavement as a crime against humanity to include sexual enslavement.⁴² Further, all three accused in the case were found guilty of rape as a crime against humanity—a first for the ICTY and only the second time in history.⁴³ Given the prevalence of sexual violence as a battlefield tactic, the court deserves considerable praise for addressing this thorny topic, and addressing what is very clearly a crime against humanity that has all too often gone unspoken, much less addressed.

Along with these significant achievements, however, the court also had a number of controversial rulings dealing with command responsibility. Critics have argued that the determinations in several cases undercut international justice by making it more difficult to hold commanding officers accountable for crimes committed by subordinates while under their watch.⁴⁴

The first of these occurred on November 16, 2012, when the appeals court acquitted Croatian generals Ante Gotovina and Mladen Markač for crimes against humanity and war crimes committed during the 1995 Operation Storm campaign.⁴⁵ U.N. military observers criticized this particular campaign for indiscriminate bombings of cities.⁴⁶ According to The New York Times, court witnesses testified that following the bombings, Croatian fighters, under the overall command of Gen. Gotovina, and others “went on a rampage of looting and burning of homes and livestock, and poisoned wells to make sure that Serbs would not return.”⁴⁷ By overturning the convictions, the tribunal essentially ruled that neither general was in control of the rampaging forces, thereby removing their responsibility for the actions of those under their command.⁴⁸ The campaign effectively depopulated the Krajina region of almost all its ethnic Serb population, making it overwhelmingly ethnic Croat in composition.

Then, on February 28, 2013, the appeals court acquitted Gen. Momčilo Perišić, the former Yugoslav army chief and aid to Slobodan Milošević, for crimes against humanity and war crimes.⁴⁹ Gen. Perišić, known to have played a critical role during the 1992–1995 war, was previously found guilty of aiding and abetting crimes against humanity and war crimes in the Bosnian towns of Sarajevo and Srebrenica and for failing, as a superior, to punish similar crimes committed in the Croatian capital of Zagreb.⁵⁰ According to the New York Times, “Records showed he regularly attended meetings of the Supreme Defense Council where Mr. Milosevic and other leaders approved sending weapons, fuel, police officers and military personnel to proxy armies fighting for the Serb cause in Bosnia and Croatia.”⁵¹ In overturning the ruling, however, the appeals judges stated that Perišić “could not be held liable as an aider and abettor” and that the court had failed to provide evidence that he had “effective control over” Serbian army forces who committed crimes.