Byron Scott: Today we're talking about a body that often operates below the general public's attention, the International Criminal Court based in The Hague in the Netherlands. July has been a significant month for international criminal law. Radovan Karadzic, an indicted war criminal from the Bosnian War in the 1990s, has been captured and extradited to The Hague for trial. A chief ICC prosecutor has asked for indictments to be returned against President Omar Hassan al-Bashir of Sudan, and a leader from the Congolese wars is beginning his trial. What is the ICC and what does it do?
Leila Sadat, director, Whitney R. Harris World Law Institute, Washington University School of Law, St. Louis: The ICC is an independent permanent court set up by 108 nations. The nations are parties to statutes to try persons accused of the most serious crimes of international harm like genocide, crimes against humanity and war crimes. The treaty that set up the ICC was adopted in Rome on July 17, 1998, so this is the court's 10th anniversary.
Scott: What is the situation concerning Radovan Karadzic and the continuing absence of Ratko Mladic?
Aleksandar Vasovic, analyst and editor, Balkan Investigative Reporting Network, Belgrade, Serbia: Karadzic was arrested and extradited to the United Nations war crimes tribunal for the former Yugoslavia. The main issue in Serbia is how to track down two remaining war crimes fugitives: Bosnian Serb Mladic and Groan Hadzic, the wartime leader of Croatian Serbs. Karadzic has a huge ego, and he was craving public attention. That's why he disguised himself as a New Age guru. Mladic is deeper underground, and he is trying to melt with the general population. Hadzic's arrest should be easier because he wasn't that politically significant.
Scott: What cases are pending in Central Africa?
Rob Crilly, journalist, Christian Science Monitor, Nairobi, Kenya: Two-and-a-half weeks ago, the ICC prosecutor asked ICC judges for warrants to arrest Bashir. The prosecutor set out evidence for 10 charges, including genocide, crimes against humanity and murder. His case is that Bashir, as head of government and of the Sudanese armed forces, is responsible for some of the bloodshed in Darfur during the last five years. Around 200,000 to 300,000 people have died, and about two-and-a-half million people are living in aid camps. We'll wait to see whether the judges believe there is sufficient evidence to issue the warrants.
Scott: What is the International Crisis Group's view of these developments?
Nick Grono, deputy president, International Crisis Group, Brussels, Belgium: The developments show the importance of international justice and some of the challenges it faces. There is a difference between Karadzic being arrested after being on the run for 13 years, and Bashir being indicted while he is still president. The Karadzic case shows international justice has a long reach. That must concern Bashir while he sits in Khartoum.
Scott: Is the ICC the same body as the tribunals that were set up for Rwanda and the former Yugoslavia?
Sadat: No, the U.N. Security Council set up the ad hoc tribunals of Yugoslavia and Rwanda in the 1990s. Karadzic was one of the first people the International Criminal Tribunal for the Former Yugoslavia indicted in 1995. The ICC and the ICTY both sit in The Hague, but the ICC is an independent treaty-based court intended to be a permanent court taking on situations worldwide.
Scott: That's the Treaty of Rome?
Sadat: Yes. One of the biggest differences between the ICC and the other courts is the ICC is meant to be complimentary to national jurisdiction. It will only intervene in a situation if serious atrocities meet the threshold levels of gravity in the statute, and if no state is able or willing to take on the case. The ICTY and International Criminal Tribunal for Rwanda have primacy jurisdiction given them by the Security Council. That means they can displace national jurisdiction. The Rome statute governs ICC operations, and the Security Council has various levers it can use with the ICC. It can vote to stop an ongoing prosecution and it can refer cases to the court, but the Security Council doesn't control the ICC the way it established and controls funds of the ICTY and the ICTR.
Scott: What may these international tribunals do in Africa?
Crilly: The reaction within Khartoum when the prosecutor asked for an arrest warrant for Bashir coalesced support around him. Many Sudanese felt the ICC had no right to intervene in Sudan's affairs, that it was up to the people to decide whether their president was a criminal. The thought is the African Union might be better equipped to solve African problems. There is unease that the ICC is going after African leaders, particularly as plenty of leaders will be looking at their own records, wondering whether they may come in for future attention.
Scott: Several nations, like the U.S., Israel, China and India, haven't adopted the Treaty of Rome. What place does this give the court in the international arena?
Grono: More than 100 countries have signed on to the ICC, so it does have a broad reach. The countries that haven't signed on are an area of concern because the international justice ideal is that everyone is subject to the same court and the same rules. It also leads to issues as we're seeing in Africa, like the ICC having four cases at the moment. One can legitimately ask why others worldwide aren't being prosecuted. A challenge for the court is to persuade other countries, particularly the U.S., that it's in their interest to sign up and to have a broader reach for international justice.
Scott: Could the ICC indict the commander-in-chief of the United States armed forces, Mr. Bush, or its soldiers regarding Iraq or Afghanistan?
Sadat: The court has jurisdictional thresholds that the U.S. doesn't fall within. However, if American soldiers commit atrocities in a member state's territory, they could be within the jurisdiction. That is highly theoretical because the prosecutor decides how to use limited resources, and he's shown no inclination to go after minor situations. He's focusing on places like Sudan where atrocities have been worst and the jurisdiction has been clearest. The U.S., unfortunately, has taken the theoretical possibility of a rogue prosecutor coming after an American soldier and said that means the U.S. either has to destroy the ICC or get exemptions from ICC jurisdiction by entering into bilateral agreements with countries to never send an American soldier to the ICC.
Scott: What does the future hold for the ICC?
Grono: The ICC is facing two big issues. One is its case in the Congo against a warlord. The judge told the prosecutor, "You haven't collected the evidence in the right way, and I might set this warlord free." The warlord is the first person who is to be on trial before the ICC, so it's a big deal and an appeal is ongoing. The other case is the application for Bashir's arrest warrant. The judges will decide whether to issue the warrant, and the Security Council will decide whether to let it go ahead.
Scott afterword: These are arguably the most important cases since the Nuremberg and Tokyo trials following World War II. They will be major news stories in the future. As we say in radio, stay tuned.
Producers of Global Journalist are MU journalism graduate students Jared Gassen and Catherine Wolf.
Byron Scott, a veteran newspaper and magazine journalist and professor emeritus of journalism, moderated this discussion in place of Stuart Loory, who holds the Lee Hills Chair in Free-Press Studies at the MU School of Journalism. The weekly radio program “Global Journalist” airs at 6:30 p.m. Thursdays on KBIA/91.3 FM or at www.globaljournalist.org.