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HUMAN RIGHTS QUARTERLY

Human Rights Quarterly34 (2012) 840863 2012 by The Johns Hopkins University Press

The UN Security Council and Responseto Atrocities: International Criminal Laand the P-5

David P. Forsythe*

ASTRACT

A review of the UN Security Council and its permanent members regardinginternational criminal law shows, rst of all, that while the Council hasbeen consistently seized with this subject matter, narrow conceptionsof national interest often negatively impact the quest for a humane rule

of law in world affairs. Secondly, agreement among the P-5 often provesdifcult, contributing to a wide array of adopted measures on this subjectwithout great consistency. The Councils toolbox is large and varied, buta dependable and consistent pattern of policy making has proven elusive.Lastly, particularly for the Big ThreeChina, Russia, and the UnitedStatesdouble standards are blatant as they often demand of others whatthey are unwilling to accept themselves. Nevertheless, the Security Councilhas paid much more attention to international criminal law than manyobservers forecast during the Cold War.

* David P. Forsytheis University Professor and Charles J. Mach Distinguished Professor, Emeritus,at the University of Nebraska-Lincoln and taught human rights there for thirty-seven years.He held the Fulbright Distinguished Research Chair in Human Rights and InternationalStudies at the Danish Institute of International Studies in Copenhagen in 2008. He is theGeneral Editor ofThe Encyclopedia of Human Rights (Oxford University Press, 5 volumes,2009) which won the Dartmouth Medal as the best reference publication in the UnitedStates that year. His nancial gifts recently started an endowment for the UNL program inHuman Rights and Humanitarian Affairs, now named in his honor.

The author is grateful to William A. Schabas for calling to my attention the need for ananalysis of this subject; and for comments on earlier versions from him and Steven R. Ratner,Roger Clark, Michael J. Matheson, David M. Malone, Patrice C. McMahon, Courtney Hil-lebrecht, and Thomas G. Weiss. The author alone is responsible for this version. A differentversion of this research, with more attention to legal factors, will appear in a book editedby Schabas.

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2012 International Criminal La and the P-5 841

I. INTRUCTIN

Since the early 1990s, the UN Security Council (UNSC) has responded to a

number of situations featuring gross violations of international human rightsand humanitarian law with references to criminal law in general and tocriminal courts in particular. This article reviews that record with a focus onthe ve permanent, non-elected Council members possessing the veto (P-5).

These P-5 states have accounted largely for the Security Council recordin this domain. Of course, the elected Council members are not withoutimportance, but the P-5 states with their potential vetoes retain the statusofprimus inter pares(rst among equals). The central analysis of this articleaddresses the nature of P-5 policies toward international criminal justice. Are

they consistently committed to holding individuals responsible for violationsof international law as a feature of principled world order after the ColdWar? Or do their policies reect mostly varying tactical maneuvers put atthe service of expedient notions of narrow national interests?

At the outset of inquiry into this subject, one should keep in mind Article103 of the UN Charter: In the event of a conict between the obligationsof the Members of the United Nations under the present Charter and theirobligations under any other international agreement, their obligations underthe present Charter shall prevail.1 As one international lawyer remarked

to this author, the UNSC can do as it pleases and it has the last say onthe matter.2 If the Council passes a resolution constituting a decision inreference to Charter Article 25 and Chapter VII pertaining to internationalpeace and security issues, that resolution is legally controlling.3 But of in-terest here is not the nature of Charter norms, but rather what is the natureof P-5 foreign policies that are then encased in legalities. In much foreignpolicy, the reality is that political choice drives reference to law and legalinterpretation.4 Thus, many analysts conclude that the Security Council isrst a political body and only secondarily a legal one.5

1. UN Charter art. 103, para. 1, signed26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans1153 (entered into force24 Oct. 1945).

2. Author Interview (identity not disclosed).3. Stefan Talmon, The Security Council as World Legislature, 99 Am. J. Intl l. 175, 175

(2005). There is the possibility of some type of judicial review of UNSC decisions, butthat subject is too large for coverage here. For starters one should consult the case ofLibya v. the United States at the International Court of Justice, and the Tadi c AppellateDecision at the International Criminal Court for the former Yugoslavia.

4. As Werner Levi has written, Politics [. . .] settles who gets what, when, and how [. . .]

and law turns the settlement into obligatory behavior. Werner levI, lAWAnd PolItIcsIntheInternAtIonAl socIety13 (1976). For a broad application of this approach seethomAs G.WeIss, dAvId P. Forsythe, roGer A. coAte & Kelly KAte PeAse, the UnIted nAtIonsAnd chAnGInGWorld PolItIcs(6th ed. 2010).

5. See furtherM. Cherif Bassiouni, The Perennial Conict between International CriminalJustice and Realpolitik, 22 GeorGIA st. UnIv. l. rev. 541 (2006). See alsoSteven R. Ratner,The Security Council and International Law, in the Un secUrIty coUncIl: Fromthe coldWArtothe 21st centUry591 (David M. Malone ed., 2004).

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Vol. 34842 HUMAN RIGHTS QUARTERLY

II. THE PLITICS f CRIMINAL LAw IN THE SECURITY CUNCIL:VERVIEw

In the politics of the Council, a rst (but not all-encompassing) dynamicplays out, as will be shown below. The three P-5 states which are liberaldemocraciesBritain, France, and the United Stateshave initiated mostof the Security Council developments in favor of different forms of criminallaw. China as an authoritarian polity without fully independent courts hasoften, but inconsistently, hesitatedoften joined by Russia which the NGOFreedom House has put in the intermediate category of partly free.6 Thisprevalent central dynamic is then cross cut by many other considerations,to be noted in subsequent analysis.

A second important dynamic is that, consistent with earlier eras, the mostimportant members of the Security Council usually approach the subjects ofcriminal law not primarily or uniquely with a long term and strategic viewof what should transpire for the common good in a lawful world order,but rather with strong consideration of how they can adequately manageto protect their immediate subjective national interests given various pres-sures and power realities. As one scholar perceptively noticed some timeago, the major states have tried to use the United Nations as a vehicle forthe advancement of their individual, antithetical foreign-policy interests.7

A British diplomat, assigned to the UN, resigned in disgust at the narrow,petty, short-term policies pursued by London (and other diplomatic capitals)in the name of national interest.8

Governments are often short-sighted and inconsistent, whether aboutforeign policy or budgets and nances, with the perceived exigencies anddesires of the moment often overwhelming more careful strategic visions.While there usually are some sectors of the national bureaucracy that arecharged with strategic planning, and while a bureau like the State Depart-ment Legal Ofce may take an unusually strategic view at least sometimes,

it remains true that many state policies in the Security Council reect pursuitof short term and narrow national interests in response to various politicalpressures, rather than long term strategic vision in pursuit of the commongood. Abstract notions of consistent legal principle do not always fare wellin the rough and tumble of routine Council politics (or national politics,for that matter).9

6. Freedom House, Russia Downgraded to Not Free,available athttp://www.freedom-house.org/article/russia-downgraded-not-free.

7. John G. stoessInGer, the UnIted nAtIons & the sUPerPoWers: chInA, rUssIA, & AmerIcA, at xixii(3d ed. 1973).

8. cArne ross, IndePendent dIPlomAt: dIsPAtchesFromAn UnAccoUntAble elIte190(2007).9. Strategic visions may be more evident after hegemonic wars when a Woodrow Wilson

or a Franklin Roosevelt is presented with an opportunity to construct new organizationalarrangements for the long term ordering of international relations.

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A third important dynamic is that three of the P-5, namely the UnitedStates, China, and Russia, have persistently sought to shield their nationalsfrom international accountability for war crimes and other legal violations

entailing criminal responsibility. In the case of Washington, this policy derivesboth from a belief in American exceptionalism or romantic nationalism andfrom a realist view of the hawkish decisions that might be necessary in a worldof unprincipled enemies.10 Thus, a somewhat contradictory view undergirdsUS policy in this domain: a very high opinion of Americas virtue, combinedwith a reluctance to have international bodies pass judgment on U.S. toughpolicies. This binary orientation results in a double standard of advocacyfor international criminal justice for others while shielding Americans fromthat very same process. Chinese and Russian policies are not so different,

with the exception that those two P-5 states cannot argue, at least with astraight face, that their democratic laws and independent courts merit anexemption from international review.11

Because of these political factorsnamely, the nature of the P-5 statesand their often changing and short term perceptions of national interestthe UN Security Council has compiled a rich but certainly complex recordconcerning international criminal law. The Security Council has: 1) helpeddevelop certain legal norms; 2) called on states to implement those norms innational proceedings, and occasionally supervised those matters; 3) carved

out exceptions for certain actors and situations; 4) created and sometimessupported ad hoc criminal courts; 5) endorsed, to varying degrees and invarious ways, special criminal courts; 6) both ignored and utilized the In-ternational Criminal Court (ICC); and 7) developed a thoroughly muddledrecord on when to prosecute individuals for crimes under international lawand when to adopt a different course of action. State strategic vision, pursuitof the common good, and ultimately a consistent Security Council approachto international criminal law is often in short supply. The problem is not theSecurity Council per se but the policies of its member states, above all the P-5.

10. SeeDavid P. Forsythe, The United States and International Criminal Justice, 24 hUm. rts.Q. 974, 97576, 98991 (2002). According to John P. Cerone, US policy on criminallaw has been guided by certain goals: shield Americans from the reach of the ICC, seekaccountability for others, and minimize international legal authority. Seehis DynamicEquilibrium: The Evolution of US Attitudes Toward International Criminal Courts andTribunals, 18 eUr. J. Intl l. 277, 285 (2007) (conrms Forsythes interpretation). Onthe complexity and inconsistency of US policy in the UNSC, see Frederick Rawski &Nathan Miller, The United States in the Security Council: A Faustian Bargain?, intheUn secUrIty coUncIl, supra note 5, at 357. See also David P. Forsythe, International

Criminal Justice and the United States: Law, Culture, Power, inFrom sovereIGn ImPUnItyto InternAtIonAl AccoUntAbIlIty: the seArchFor JUstIce InA WorldoF stAtes61, 62 (RameshThakur & Peter Malcontent eds., 2004).

11. See generally, Michael Fullilove, China and the United Nations: The Stakeholder Spec-trum, WAsh. Q., Summer 2011, at 63. I am indebted to David Malone for calling thisarticle to my attention.

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III. THE PLITICS f CRIMINAL LAw IN THE SECURITY CUNCIL:SPECIfICS

United States foreign policy has played a considerable role in shaping thecurrent state of international criminal law.12 Washington insisted on theNuremberg Trials and companion Tokyo Trial of the 1940s (Churchill andStalin were at rst in favor of summary execution of leading Nazi ofcials).13These highly imperfect proceedings provided a foundation for later, improveddevelopmentsa point that should not be dismissed too quickly by thoselabeling the trials of the 1940s as nothing more than victors justice. Oncesome development is established, it is not always clear where subsequentdecisions might lead. Among all the laws at play, a law of unintended

consequences exists. The road from Nuremberg to the ICC shows many twistsand turns, as well as a considerable pause due to blockages from Cold Warpolitics, but without Nuremberg, the ICC and other aspects of internationalcriminal law would have been more difcult to construct.

A. UN Ad Hoc Courts

Some fty years after the Nuremberg Trials, it was the United States that

made a decisive difference in the renaissance of international criminal jus-tice with the creation of the International Criminal Tribunal for the formerYugoslavia (ICTY) in 1993. This is not to denigrate the contributions made inthe 1990s by European and other actors,14 but international criminal courtswere resumed only when ofcials in Washington succeeded in convincingPresident Bill Clinton that such a tribunal was a desirable policy option forthe Western Balkans.15 To be sure, the Security Council decided to create

12. SeeKen Anderson, The Rise of International Criminal Law: Intended and Unintended

Consequences, 20 eUr. J. Intl l. 331 (2009). Anderson presents concise views on thesubject. See alsoDavid Tolbert, International Criminal Law: Past and Future, 30 U. PA.J. Intl l. 1281, 1284 (20082009).

13. It is not so well known, but relevant to subjects discussed here, that later in the early1950s the US backed away from the Nuremberg process, seeing it as an impedimentto other foreign policy objectives such as the election of Konrad Adenauer in (West)Germany and that states integration into NATO. This was US strategic legalism, with

juridical matters pursued or not according to changing conceptions of the nationalinterest. See PAUl mAGUIre, lAW And WAr: InternAtIonAl lAW & AmerIcAn hIstory (2010).For Justice Jackson and others who wanted to legalize international relations via theNuremberg trials, this objective proved more difcult than they imagined.

14. SeeWIllIAm A. schAbAs, the Un InternAtIonAl crImInAl trIbUnAls: the Former yUGoslAvIA, rWAndAAnd sIerrA leone1120(2006); See alsoGAryJonAthAn bAss, stAy the hAnd oF venGeAnce:the PolItIcsoF WAr crImes trIbUnAls, 20675(2000).

15. SeeJohn h.F. shAttUcK, Freedomon FIre: hUmAn rIGhts WArsAnd AmerIcAs resPonse(2003).Shattuck provides one inside account of the US Assistant Secretary of State for HumanRights, Democracy, and Labor at the time. Other insiders maintain a slightly differentversion of persons and reasons involved.

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the ICTY under Chapter VII of the UN Charter as a mandatory peace andsecurity measure, in part because the Clinton Administration was under pres-sure to act in response to well publicized atrocities during 19911992. Not

wanting to put its military personnel in harms way at that time, some on theClinton policy making team saw the ICTY as a feasible option that woulddemonstrate a response but without entailing unacceptable national bloodor treasure.16 Britain and France ofcially went along, even though Londonwas particularly concerned that the international community might have tonegotiate a return to peace with war criminals.17 Likewise, in the rst blushof the post-Cold War world, sometimes referred to as the unipolar moment,China and Russia voted yes, despite hesitations. China, like Brazil, was notkeen on a UN mandated criminal court at the start of the deliberations but

eventually came around to the Western position.Some independent legal experts have held that the Councils creationof criminal courts violates international law, because such courts are notmentioned in either Chapter VI (non-binding measures) or Chapter VII(binding measures).18 This strict constructivist approach is surely pass now,whatever its intellectual merits, given the extensive Council action in thisdomain and the acceptance of, or deference to, Council policies by most, ifnot all states,. To paraphrase a hoary maxim, the life of the law is not logicbut political experience. Moreover, the ICTY Appeals Chamber in the Tadic

case has held that the Court was properly created under international law.19Even so, US and European military leaders were decidedly unenthusiastic

about arresting some of those indicted by the ICTYs Ofce of the Prosecutor,fearing casualties that would trigger a domestic backlash against deepeninginvolvement in violent foreign affairs.20 This was not an unreasonable feargiven the congressional and public backlash in the wake of the deaths ofeighteen US military personnel in Somalia in 1993 in a failed arrest attemptthat eventually compelled Clinton to reduce USand UNinvolvementin that failed state.21 So, the Council might have created ad hoc criminal

16. SeeDavid P. Forsythe, Politics and the International Criminal Tribunal for the FormerYugoslavia, in the ProsecUtIonoF InternAtIonAl crImes185 (Roger Clark & Madeleine Sandeds., 1996); bAss, supra note 14, at 207. There were those in the State Department thatapproached the ICTY and later the ICTR as the right thing to do, morally and legally. Inother circles of opinion in Washington, more expedient considerations were taken intoaccount.

17. SeebAss, supra note 14, at 211.18. SeeschAbAs, supra note 14 at 4749, n.10.

19. Press Release, International Criminal Tribunal for the Former Yugoslavia, Tadic Case: TheJudgement of the Appeals Chamber, U.N. Press Release TH/ P.I.S./ 419-e (15 July 1999),available athttp://www.icty.org/sid/7749.

20. SeeshAttUcK, supra note 15, regarding the Pentagons opposition to arrests by Westernmilitary forces.

21. Id. at 2223.

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courts, but making them work effectively did not follow automatically. Ap-parently Russia, having voted for the ICTY, then aligned with Serbia in tryingto impede the workings of that court.22

Having created the ICTY at least in part for debatable reasonsnamely,to avoid a military intervention to stop atrocities, the Security Council thencreated the International Criminal Tribunal for Rwanda (ICTR) in 1994, againas led by the US. In part, some on the Clinton team were looking for a wayto atone for its refusal to support a more robust UN security mission in themidst of the 1994 genocide.23 UN Secretary-General Boutros Boutros-Ghaliand his contrasting the considerable Western attention to Bosnia with thelack of similar attention to the Great Lakes region of Africa also embarrassedthe Clinton Administration.24 So the US had short term and self-interested

reasons for advancing the ICTR, apart from any principled commitment tointernational criminal justice as a feature of the current world orderthelatter being the view in the State Department Legal Ofce and those alignedwith it.25

This time around, China abstained in support of Rwanda, an electedmember of the Security Council. The new Rwandan government, led byPaul Kagame, voted against the creation of the ICTR in protest about theabsence of a death penalty and other issues.26 Therefore, China in its ap-proach to criminal law in the Council seemed to place great reliance on

the views of developing countries, but at the same time Chinas abstentiondid not block what the US wanted to do. China obviously sought to pleaseboth quartersthe US and the West, but also African states. China itself hadengaged in the Tiananmen massacre of protesting dissidents in 1989, yet itno doubt calculated that UN ad hoc criminal courts with limited geographi-cal jurisdiction posed little threat to Chinasand the ruling elitescore

22. cArlA del Ponte, mAdAme ProsecUtor: conFrontAtIons WIth hUmAnItys Worst crImInAls Andthe cUltUreoF ImPUnIty: A memoIr11314 (2009).23. SeemIchAel J. bArnett, eyeWItness to A GenocIde: the UnIted nAtIons And rWAndA (2002).

As with many other sources, Barnett provides an excellent overview explaining whyvarious UN and Western ofcials opposed further involvement in Rwanda in 1994 .See alsoromo dAllAIre, shAKe hAnds WIth the devIl: the FAIlUreoF hUmAnIty In rWAndA(2003). Dallaire provides excellent treatment of what transpired at grassroots level andthe frustrations of unsuccessfully seeking that further, more robust involvement.

24. After his time in ofce, Boutros-Ghali continued to say what he said many times whilein ofce, namely that African atrocities received less attention than European and otheratrocities. Frontline: Interview: Boutros-Ghali, (PBS television broadcast 21 Jan. 2004)available at, http://www.pbs.org/wgbh/pages/frontline/shows/ghosts/interviews/ghali.html.

25. Author Interviews. See alsodAvId scheFFer, All the mIssInG soUls: A PersonAl hIstory oFthe WAr crImes trIbUnAls, 1544 (2012). He discusses the creation of both ad hoc courts,stressing legal factors and trying to downplay political calculationsespecially regardingthe ICTY.

26. Allison Marston Danner, Constructing a Hierarchy of Crimes in International CriminalLaw Sentencing, 87 vA. l. rev. 415, 424, n.24 (2001).

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interests. China was not enthusiastic about most human rights developmentsat the UN, whether in the Security Council or Human Rights Council neCommission on Human Rights, but it could tolerate some developments if

it meant avoiding deterioration in US relations.

27

Over time the Security Council supervised its judicial creations inmany ways, creating judges ad hoc, dealing with petty corruption and otherproblems in the ICTR, pressing for a wind-up strategy for both courts, andallowing an extension of the ICTY to deal with the Karadic and Mladiccases. The subject is too large for coverage here.28

. Sierra Leone

While the two UN ad hoc criminal courts were able to hold fair trials andconvict numerous defendants, they also proved slow and costly, leading theSecurity Council to take a different approach to the situation in Sierra Leone.The Council started by endorsing the 1999 Lome Accord which presumablyended the internationalized internal conict that had been running for almosta decade between the government and mainly the Revolutionary UnitedForces (RUF).29 This accord promised an amnesty from legal prosecutionfor all those involved in the conict who agreed to lay down their arms.

In S/Res/2060 (1999), the Council seemed to endorse bypassing criminaljustice in the interests of the restoration of stability.30 A year later, however,with a changed political situation, the Council adopted S/Res/1315 (2000),authorizing the Secretary-General to negotiate various arrangements withthe Sierra Leone government.31

In effect, the UN wound up negotiating with itself, as the SecurityCouncil exchanged views with the Ofce of the Secretary-General, the latteralso negotiating with Sierra Leone. The end result was a new criminal court,partly national and partly international both in terms of judges appointed

and laws enforced, but one not nanced through UN channels. At that timethere was no enthusiasm in the Council and General Assembly for nancinga new criminal court. The Sierra Leone court lacked the authority derivedfrom being created under UN Charter Chapter VII. The court was based on

27. SeeFullilove, supra note 11.28. See generally, Anne E. Mahle, The Ad Hoc Criminal Tribunals of the Former Yugoslavia

and Rwanda, Pbs, available athttp://www.pbs.org/wnet/justice/world_issues_hag.html.

29. U.N. Observer Mission in Sierra Leone, UNOMSIL Background, available athttp://www.un.org/depts/DPKO/Missions/unomsil/UnomsilB.htm.

30. Resolution 1260, S.C. Res. 1260, U.N. SCOR, 4035th mtg., 3, U.N. Doc. S/Res/2060(1999).

31. Resolution 1315, S.C. Res. 1315, U.N. SCOR, 4186th mtg., 1, U.N. Doc.S/Res/1315(2000).

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a negotiated agreement between Sierra Leone and the UN Secretariat, witha companion Security Council resolution in the background. Whereas thetwo UN ad hoc courts had supreme legal authority within their jurisdiction

and could legally compel cooperation from all states, the authority was oth-erwise for the new hybrid courtand there was also a Truth Commission.32As the court proceeded with indictments and prosecutions, the Security

Council played a supervisory role. Through S/Res/1688 (2006), for example,it authorized a Special Chamber of the court to sit in The Hague, utilizingthe facilities of the International Criminal Court, in order to try the formerdictator of Liberia, Charles Taylor.33 The Court charged Taylor with authoriz-ing various atrocities in Sierra Leone. His continuing popularity in certainWest African circles of opinion led to the Council decision to hold his trial

in The Hague. His conviction in 2012, however, showed no outpouring ofgreat support in Africa. The relevant Security Council resolution providedthe Court with legal authority beyond Sierra Leone and responded to con-cerns by states like the Netherlands and the United Kingdom about certain

jurisdictional issues.34

C. Cambodia

Likewise regarding Cambodia, the UN Secretariat engaged in protractednegotiations about the creation of a special or hybrid criminal court to dealwith the residue from the Khmer Rouge atrocities between 1975 and 1979.While some parties preferred another UN ad hoc criminal court as man-dated by the Security Council under UN Charter Chapter VII, China refusedto agree to any criminal law process that would be imposed on Cambodia,rather than negotiated with Cambodia.35 China aligned closely with the Hun

32. Seethe Post-conFlIct reInteGrAtIon InItIAtIveFor develoPmentAnd emPoWerment (PrIde), ex-

combAtAnt vIeWsoFthe trUthAnd reconcIlIAtIon commIssIonAnd sPecIAl coUrtIn sIerrA leone(Sept. 2002) available at http://ictj.org/sites/default/les/ICTJ-SierraLeone-Combatants-TRC-2002-English.pdf. See alsoWilliam A. Schabas, The Relationship Between TruthCommissions and International Courts: The Case of Sierra Leone, 25 Hum. Rts. Q. 1035(2003).

33. Resolution 1688,S.C. Res. 1688, U.N. SCOR, 5467th mtg., 3, U.N. Doc. S/Res/1688(2006).

34. It might be mentioned in passing that the Ofce of the Prosecutor for the Sierra Leonespecial court was David Crane, an American lawyer who had served previously in thePentagon. This appointment, while criticized in certain circles, may have ensured a certainUS interest in the operations and indeed in the success of the court. One judge wasfrom the US and another from the UK. By 2011 the US had contributed some $80m in

voluntary donations to the chronically under funded court, including an expedited $5mto try to ensure the continuation of the Taylor trial. Press Release, U.S. Dept of State,The U.S. Provides $4.5 Million to Fund Special Court for Sierra Leone Trial of CharlesTaylor (23 Nov. 2010), available athttp://www.state.gov/r/pa/prs/ps/2010/11/151810.htm.US support for the ICTY and ICTR, in terms of money and personnel and equipment,has also been important.

35. See generallyRobert S. Ross, China and the Cambodian Peace Process: The Value ofCoercive Diplomacy, 31 AsIAn sUrvey 1170 (1991).

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Sen government there (Hun Sen had been part of the Khmer Rouge move-ment, and some circles of opinion did not believe he negotiated in goodfaith regarding the hybrid criminal court.). At the end of a long diplomatic

process, with mediation by the US, a complicated and perhaps even dubiouscriminal court was created that started its rst case only in 2009.36 The UNGeneral Assembly approved judicial arrangements in 2003, with no role forthe Security Council. Once China made clear that it would not support aChapter VII court, the Council was effectively sidelined.

. East Timor and Kosovo

In East Timor and Kosovo, territories under UN administration for a time,the Security Council authorized a security mission which was managed bythe ofce of the Secretary-General. The top UN ofcial in these missions,the Special Representative of the Secretary-General, proceeded to createcriminal courts and other legal bodies as part of his general administrativeduties. The Security Council retained an oversight function that sometimescame into play when it was time to terminate or re-authorize the eld mis-sions. Judicial matters did not loom large in Council deliberations in thesetwo cases.37

E. The ICC

The Security Councils creation of the two ad hoc criminal courts facilitateddiplomatic progress on the ICC, by not only demonstrating the feasibilityof international criminal courts but also by indicating how much time, dip-lomatic capital, and money was required to get them up and running. Thehesitation within the Security Council to commission a third ad hoc court

for Sierra Leone t with the conclusion drawn by many states that the timewas ripe for a permanent ICC so as to reduce the transaction costs involvedin creating a series of ad hoc courts.

36. Extraordinary Chambers in the Courts of Cambodia, Case 001, available athttp://www.eccc.gov.kh/en/case/topic/1.

37. On East Timor, in addition to Stewart Eldon, East Timor, inthe Un secUrIty coUncIl, supranote 5, at 551, SeeSuzanne Katzenstein, Hybrid Tribunals: Searching for Justice in EastTimor, 16 hArv. hUm. rts. J. 245 (2003). On Kosovo, in addition to Paul Heinbecker,

Kosovo, inthe Un secUrIty coUncIl, supra note 5, at 537, SeehUmAn rIGhts WAtch, KosovocrImInAl JUstIce scorecArd(Mar. 2008), available athttp://www.hrw.org/sites/default/les/reports/kosovo0308_1.pdf. There was also a special chamber for war crimes in Bosniathat was supervised by the UN. SeehUmAn rIGhts WAtch, nArroWInG the ImPUnIty GAP:trIAls beFore bosnIAs WAr crImes chAmber (Feb. 2007), available athttp://www.hrw.org/print/reports/2007/02/11/narrowing-impunity-gap.

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As states and other interested parties met at the Rome diplomatic con-ference in 1998 to hammer out a court statute, it became clear that sucha court would need to be created by treaty and not by Security Council

decision. The early assumption by the US and certain other states was thatcases would be referred to the new court by the Council.38 Just as the UNCharter ensured that no P-5 state would ever be charged with aggression orbreach of the peace by the Council (given veto provisions), so particularlymost US ofcials assumed that the same logic would prevail at Rome. TheSecurity Council veto would ensure that no Americans (or Chinese or Rus-sians, etc.) would be defendants before the ICC. When that logic did notprevail, because international political culture about double standards hadapparently changed since 1945, the US decided that it could not support

the nal Rome statute.39

The reasons given for the US failure to ratify the Rome Statute havebeen well documented and need not be repeated here.40 The underlyingcultural and political dynamics have also been analyzed.41 It may be truethat some in Washington during the time of the Clinton Administration didgenuinely fear the risk of politicized trials of American defendants becauseof potential rogue prosecutors and other developments that might reectanti-Americanism. However, particularly after the Administration of GeorgeW. Bush and in the light of US torture and other violations of international

human rights and humanitarian law in US counter-terrorism policies after11 September 2001, it seems reasonably evident that some in Washingtonbelieved that torture and other violations of law entailing individual criminalresponsibility might be required in a world of dangerous enemies.42 More-over, throughout its political history the US, represented by various govern-ments of both political parties, had rarely accepted a court, or indeed anyinternational organization, that it could not control on important issues.43

38. Among many sources, a concise overview of the creation of the ICC can be found inbenJAmIn n. schIFF, bUIldInGthe InternAtIonAl crImInAl coUrt(2008).39. SeeAnderson, supra note 12. In 1945, the prevailing opinion was that the League of

Nations had been too democratic, with too much emphasis on state equality, for it andassociated arrangements to work. What was needed, so it was thought back then, wasmore emphasis on the realities of state power even if this resulted in only partial justice.This 1945 view was reevaluated in 1998 at the Rome conference.

40. SeeschIFF, supra note 38.41. SeeForsythe, The United States and International Criminal Law, supra note 10, at 98287.42. As a matter of policy, the US government during the George W. Bush Administration

engaged in enforced disappearances, torture, cruel, inhuman, and degrading treatment,and other serious violations of human rights and humanitarian law. For a summary treat-

ment making use of broad sources, see dAvId P. Forsythe, the PolItIcsoF PrIsoner AbUse:the UnIted stAtesAnd enemy PrIsonersAFter 9/11 (2011). Circumstantial evidence suggeststhat the UK was involved in the creation and implementation of many of these policies.To date, the US has been unwilling or unable to seriously investigate, much less try incourt, the high ranking authors of these illegal policies.

43. The leading example to the contrary is US membership in the World Trade Organization.There the US has lost a number of cases in Dispute Panels. But sanctioning is up tostates, not the international organization.

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China and Russia also objected to the ICC as it emerged from the RomeConference (as did Israel, among other important military powers). France andthe UK eventually signed and ratied the Rome statutethe French obtaining

some temporary concessions of interest to Parisindicating that there wereat least two modern military powers who committed their military forcesabroad on occasion (e.g., Afghanistan, Iraq, Sierra Leone, Ivory Coast, Libya,etc.) but who clearly did not fear politicized trials against their nationals. Infact, there are two principal safeguards against politicized trials: 1) the ICCcan act only if a state is unwilling or unable to properly investigate and,if warranted, try those suspected of genocide, crimes against humanity, ormajor war crimes; and 2) the prosecutor cannot proceed to trial without theapproval of a special chamber of judges.44

Once the ICC became a reality in July of 2002, this affected the politicsof criminal justice in the Security Council. During that month, the GeorgeW. Bush Administration threatened to veto a UN peacekeeping operationunless any US personnel in that security mission were immunized from any

juridical liability under international law.45 Amidst much controversy theCouncil eventually did as the US desired. The same process played out thefollowing year as well,46 but prisoner abuse at the US-run Abu Ghraib prisonin Iraq in 2003, publicized in 2004, ended such US demands. Nevertheless,the Bush Administration continued to try to undermine, limit, and perhaps

even destroy the ICC through various policies outside the Council.47Matters somewhat changed, however, in 2005. Confronted with con-

tinuing violent and abusive policies by the Sudanese government in theDarfur region, policies that earlier Secretary of State Colin Powell hadlabeled genocide, the Security Council referred the matter to the Ofce ofthe Prosecutor of the ICC, as permitted by the Rome Statute, with a viewto possible investigation and criminal proceedings against certain Sudaneseofcials. The vote was 11-0; the US, China, Brazil, and Algeria abstained.48Both China and the US could have exercised a veto but did not. Thus the

US, seeing no better options and under heavy pressure particularly bycertain American religious groups to act regarding the atrocities in Sudan,decided to cooperate with the ICC rather than to undermine it.49 The Bushteam preferred another ad hoc criminal court, but opinion in the Councilwas still set against that option.50 The US again insisted on, and received,

44. schIFF, supra note 38, at 6973.45. mIchAel J. mAtheson, coUncIl UnboUnd: the GroWthoF Un decIsIon mAKInGon conFlIctAnd

PostconFlIct IssUesAFterthe cold WAr 208211 (2006).

46. For interpretations about the UNSC modifying the Rome statute, and state legal obliga-tions in the event such modications were illegal, see Neha Jain, A Separate Law forPeacekeepers: The Clash between the Security Council and the International CriminalCourt, 16 eUr. J. Intl l. 239, 250 (2005).

47. SeemAtheson, supra note 45, at 210 (2006).48. schIFF, supra note 38, at 22930.49. Id., at 230233.50. mAtheson, supra note 45, at 21719.

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legal immunity from international liability for all personnel participating inthe UN-AU eld mission deployed in Darfur.51 Moreover, the US dealt withICC personnel and facilities when it facilitated the transfer of Charles Taylor

from Nigeria to The Hague in 2006 regarding the special chamber of theSierra Leone hybrid criminal court.After the Prosecutor had secured arrest warrants for Sudanese President

Omar Hassan al-Bashir and others, China received al-Bashir on an ofcialvisit in 2011, rather than arresting him.52 Other states, like Kenya, also hostedhim rather than apprehending him and turning him over to ICC authorities.While there were more than thirty African states that were party to theRome Statute, there was growing concern across Africa about the ICC. Insome circles of African opinion, people believed that the Prosecutor had

not paid sufcient attention to African views regarding when arrest warrantswere appropriate. Again, one can see that Chinese policy was affected by itsmany African contacts: while it was reluctant to exercise a veto in criminallaw matters, it was not really committed to vigorous action by the ICC andits prosecutor. Especially when developing countries were not enthusiasticabout ICC actions, China limited its cooperation as well.

When, in early 2011, the Security Council unanimously referred thesituation in Libya to the ICC with a view to eventual criminal prosecutionof Moammar Kadda and his top aides, the African Union later voted to

disregard the indictment that had been brought forward against Kadda.According to press reports, the AU held that such an indictment was a bar-rier to its attempts to end the violence in Libya by diplomacy.53 This actionmade clear the growing rift between the ICCor at least the Ofce of theProsecutorand many African states. At the time of writing, it was not clearhow events would play out, either with regard to the ICC or other matters,but as compared with Sudan in 2005, with regard to Libya in 2011, boththe US and China (along with all other Council members) voted for thereferral to the ICC. One important factor was that Arab League supported

the Security Council referral to the ICC. This put political pressure on Chinato vote yes. Moreover, by 2011 the Barack Obama Administration spokefor the US and not the George W. Bush Administration. The Obama teamof policy makers, while showing some continuity with certain previous USpolicies, was generally less unilateralist than the Bush team.54

51. Id.52. US Gives Its Blessing to Bashirs China Visit, sUdAn trIbUne, (June 17, 2011), available at

http://www.sudantribune.com/US-gives-its-blessings-to-Bashir-s,39242.53. AlexIs ArIeFF, rhodA mArGesson, mArJorIe Ann broWne & mAttheW c. Weed, InternAtIonAl

crImInAl coUrt cAses In AFrIcA: stAtUs And PolIcy IssUes 2628 (2011), available athttp://www.fas.org/sgp/crs/row/RL34665.pdf.

54. SeeDavid P. Forsythe, US Foreign Policy and Human Rights: Situating Obama, 33 hUm.rts. Q. 767 (2011). In the second term of the Bush Administration certain ofcials likeSecretary of State Condoleezza Rice and State Department Legal Counsel John BellingerIII were not as hostile to international law in general or the ICC in particular as certain

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In the Security Council with regard to the ICC, US policy had shiftedfrom opposition to tolerance to support, but all the while trying to ensurethat no Americans would be defendants before the Court. Chinese policy on

these matters was to follow rather than to lead, to avoid a veto that mightantagonize the US, but also to avoid support for criminal law developmentsthat would irritate its friends in the developing world. Yet as long as no Se-curity Council debates focused on Chinese repression, Beijing was contentto provide some carefully calculated support for advances in internationalcriminal law directed at others. In this vein, it was similar to Washington.Among the P-5, only the British and French, having ratied the Rome Statute,did not try to shield their nationals from ICC jurisdiction.

One might also note the different Security Council approach to Sudan

and Libya on the one hand, and other states such as Syria, on the other.In 2011, massive public protests demanding more democracy and humanrights protections (and better economic opportunity) wracked Syria, too.The Bashar al-Assad regime responded primarily with repression, killinghundreds of protestors in the process. Yet the Security Council did not referthe matter to the ICC or call for the departure of Assad.55 Russia had nu-merous economic interests in Syria. The US, with one eye on relations withIsrael, feared an uncertain power vacuum in a fractured Syria without rmcontrol at the top. For years Assad had not made direct or serious trouble

for Israel. China once again followed the other P-5 policies concerning astate where it had few vital interests. France, the former colonial power inSyria, displayed far more concern about Libya. So the record of the SecurityCouncil in referring cases to the ICC, and in considering when such referralmight complicate regime change, was highly inconsistent. The political factseemed to be that Kadda was more of a pariah than Assad, and weaker, inthe eyes of most of the P-5 (and in the Arab League).56

F. Lebanon

Finally, this Section addresses the Security Councils creation of a specialcriminal court regardingprimarily but not exclusivelythe assassinationin Lebanon of former Prime Minister Raq Hariri on 14 February 2005. Led

other ofcials like Vice President Dick Cheney or Secretary of Defense Donald Rumsfeld.Cerone, supra note 10, 290310. See alsoForsythe, the PolItIcsoF PrIsoner AbUse, supranote 42.

55. Ahed al Hendi, The Structure of Syrias Repression: Will the Army Break with the Regime?,

ForeIGn AFF. (3 May 2011), available athttp://www.foreignaffairs.com/print/67759.56. Both the Libyan and Syrian situations were unresolved at the time of writing. As the

Assad regime continued and even accelerated its repression, the UNSC nally issueda Presidential statement of criticism in later summer 2011, as even Russia began tosoften is opposition to UNSC involvement and as the US and others lost patience withan Assad who refused to moderate and reform.

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by Britain, France, and the US, the Council voted in S/Res/1559 (2004) todemand that Syria cease its intervention in Lebanese affairs.57 This was fol-lowed by S/Res/1664 (2006), which advanced a focus on and investigations

about, the Hariri killing.

58

The Western P-5 states believed that the killing wasthe result of Hezbollah and potentially Syrian policies. Finally, in S/Res/1757(2007), the Council approved an agreement between the UN Secretariatand Lebanon by a vote of 10-0-5, which brought the Court into being. 59This agreement was in some ways similar to the one that had brought thespecial criminal court for Sierra Leone into being; but in approving negoti-ated arrangements for Lebanon, the Security Council took a decision underUN Charter Chapter VII, which activated Charter Article 25, which madenegotiated arrangements legally superior to Lebanese law. Abstaining were

China, Russia, South Africa, Indonesia, and Qatar. Public explanations ofabstentions had to do with unacceptable interference in Lebanons domesticaffairs. Politically, the Councils backing for a special criminal court, theonly one dealing primarily with one killing, was widely seen as a projectof the western P-5 states, aligned with Saudi Arabia and others, designed tocounter the inuence of Syria, Iran, and Hezbollah in Lebanon.60

The agreement between the Lebanese government and the UN that theCouncil endorsed had been negotiated in irregular procedures by the SunniPrime Minister (Raq Hariri was a Sunni); without the cooperation of the

Speaker of the Parliament (always a Shia, and in current times afliated withHezbollah, which in turn was backed by Iran and Syria); and with no rolefor the President (always a Christian). Thus, the Special Tribunal for Leba-non (STL) was entangled in the politics of the weak Lebanese state, whichhad historically found it difcult to take decisive action in the context ofdisagreement among the main political groupings. In the situation underanalysis here, the Lebanese Sunni were aligned with the Western states inthe Security Council, as well as with Sunni Saudi Arabia outside the Council.

From the Western view, the STL was an attempt to break out of the chronic

Lebanese stalemate by overriding Lebanese law and imposing an interna-tional solution to violent politics engineered by one coalition (Hezbollah-Syria- Iran). Criminal prosecution was thus intended not only to break outof impunity for political murder in Lebanon, but also to curtail the power

57. Resolution 1559, S. C. Res. 1559, U.N. SCOR, 5028th mtg., U.N. Doc. S/Res/1559(2004).

58. Resolution 1664, S. C. Res. 1664, U.N. SCOR, 5401st mtg., U.N. Doc. S/Res/1664

(2006).59. Resolution 1757, S. C. Res. 1757, U.N. SCOR, 5685th mtg., U.N. Doc. S/Res/1757

(2006).60. For a good analysis see nAdIm shehAdI & elIzAbeth WIlmshUrst, the sPecIAl trIbUnAlFor lebAnon:

the Un on trIAl?, (July 2007), available athttp://www.chathamhouse.org/publications/papers/view/108578.

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of Syria and Iran acting either directly or through Hezbollah. Particularly,China and Russia were not keen on advancing the policy objectives of theleading Western states, but at the same time, they apparently did not want

to exercise their veto on a matter that did not engage what they saw as theirvital national interests.In January 2011, Hezbollah withdrew its members from the coalition

government over the issue of cooperation with the STL, causing a politicalcrisis and further instability in the country; and in June 2011, when theSTL brought four indictments against senior Hezbollah members, the crisisintensied. The leader of Hezbollah, Nasrallah, claimed that the killing ofRaq Hariri was the work of Israel and that the STL was nothing more thana conspiracy between the US and Israel to undermine the legitimate politi-

cal activity of Lebanese Shia as led by Hezbollah.61

Naturally Nasrallah didnot cite any misdeeds by Syria or Iran, his movements primary backers. Hesaid the four indicted would never be turned in, and it was unlikely thatany organization in Lebanon had the power to apprehend them as requiredby the rules of the Court.62

At the time of writing, it was evident that the UN criminal court forLebanon, rather than quickly breaking out of traditional Lebanese politics thathad allowed for penetration by various outside parties over the years, hadbecome enmeshed in the dysfunctional domestic politics that had produced

the catastrophic internationalized civil war between 1975 and 1990. Theindictment of certain Hezbollah ofcials (while absolving Syrian operativesthus far) certainly contested the practice of impunity. However, given the rigidreaction of the Hezbollah leadership, presumably supported by Iran (withAssad in Syria presumably preoccupied with the political uprising there), itwas not at all clear that the STL was the progressive breakthrough that theWestern P-5 states desired, either in legal or political terms.

IV. EVALUATING THE SECURITY CUNCIL AN CRIMINAL LAwEVELPMENTS

The Security Council has had some directinuence on international criminallaw, for instance, when it puts on its legal hat and declares some norm issubject to individual responsibility and thus possible criminal prosecution. Ithas also played a direct role in making clear that states are legally requiredto cooperate with certain criminal courts. The Security Council has had con-

61. Herb Keinon, Nasrallah: Israel Murdered Hariri, the JerUsAlem Post (10 Aug., 2010), http://www.jpost.com/MiddleEast/Article.aspx?id=184231.

62. For a detailed overview of the STL see Washington College of Law, Special Tribunalfor Lebanon, http://www.wcl.american.edu/warcrimes/stl_chronology.cfm.

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siderable indirect inuence in the sense that its creations, like the two UNad hoc courts, have then proceeded on their own to develop legal normsand punish a number of defendants through convictions and incarceration.

This indirect inuence extends to the ICC when the Council refers a subjectmatter, and then the Ofce of the Prosecutor and legal chambers proceedon their own. In some matters, the developments in international criminallaw have little or nothing to do with the Security Council, as when a statesuch as Ivory Coast agrees to ICC jurisdiction and then the Prosecutor and

Judges proceed independently.

A. Norms

A classic example of the Councils direct contribution to the normative devel-opment, reinforcement, or codication of international criminal law occurredin 1992 when the Security Council dealt with Somalia. As that failed statedegenerated into multifaceted violence and starvation, the Council invokedUN Charter Chapter VII to declare that the humanitarian crisis constituteda threat to international peace and security. Deploring the armed attackson relief efforts that were trying to bring assistance to civilians in need, theCouncil declared in S/Res/794(1992), paragraph ve, that it

[s]trongly condemns all violations of international humanitarian law occurringin Somalia, including in particular the deliberate impeding of the delivery offood and medical supplies essential for the survival of the civilian population,and afrms that those who commit or order the commission of such acts willbe held individually responsible for in respect of such acts.63

It has been said, regarding Somalia in the early 1990s with only slightexaggeration, that no local who possessed a weapon had ever heard of the1949 Geneva Conventions or the laws of war. Certainly, without a functional

central government in Somalia, it was not clear what judicial system wouldbring to legal justice those who attacked (largely for pecuniary reasons) RedCross and other agencies involved in assistance. Nevertheless, the Councilreinforced the general principle that war crimes, such as attacks on non-ghters, entailed individual legal liability. While the practical signicanceof Resolution 794, paragraph 5 turned out to be slight, it is very clear nowthat certain war crimes may lead to criminal prosecution.64

The Security Council contributed to the normative development ofinternational criminal law many times, in many ways, pertaining to many

different situations, especially after the end of the Cold War.

63. Resolution 794, S. C. Res. 794, U.N. SCOR, 3145th mtg., para. 5, U.N. Doc. S/Res/794(1992).

64. Id.

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. State Responsibility

Closely linked to normative development is the principle that territorial

states have primary responsibility to enforce criminal law. Consistent withthe UN resolution containing paragraphs on the responsibility to protect(2005, adopted by the General Assembly), namely that states have the pri-mary responsibility in their jurisdiction to enforce human rights protections,especially to prevent genocide, crimes against humanity, major war crimes,and ethnic cleansing, the Council has repeatedly called on states to exercisethat responsibility.

In 2009, the Security Council, working closely with the InternationalCommittee of the Red Cross, the guardian of international humanitarian law,

adopted Resolution 1894, which was concerned primarily with protectionof civilians in armed conict.65 The Security Council rst recognized thatStates bear the primary responsibility to respect and ensure the human rightsof their citizens, as well as all individuals within their territory as providedby relevant international law, and that parties to armed conict [states andarmed non-state actors] bear the primary responsibility to take all feasiblesteps to protect the security of civilians.66 The Council then went on to sayin operative paragraph 10 that it

[a]frmsits strong opposition to impunity for serious violations of internationalhumanitarian law and human rights law and emphasizes in this context theresponsibility of States to comply with their relevant obligations to end impunityand to thoroughly investigate and prosecute persons responsible for war crimes,genocide, crimes against humanity or other serious violations of internationalhumanitarian law in order to prevent violations.67

The efcacy of this type of general Council statement may be in doubt,given the record of certain ghting parties in targeting civilians as part oftheir calculated strategy to achieve certain objectives. Unfortunately in many

contemporary armed conicts, harm to civilians is not a matter of collat-eral damage but of intentional terrorizing, displacement, and even killing.Nevertheless, the Security Council put itself on record in favor of the ruleof law in general and criminal law in particular, in a diplomatic effort tocounter such unlimited and inhumane war-ghting strategies. In a numberof cases, the Security Council authorized some type of security missionto at least impede, if not confront, such abuses of civilians. In Resolution1894 the Security Council laid out a general statement, including empha-sis on state primary responsibility for the application of criminal law, with

65. Resolution 1894, S. C. Res. 1894, U.N. SCOR, 6216th mtg., U.N. Doc. S/Res/794 (2009).66. Id.67. Id. para. 10.

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no practical measures attached. In the case of the Security Council andcounter-terrorism, on the other hand, we nd the Council not only adoptingresolutions requiring states to criminalize certain terrorist actions, but also

sometimes creating a supervisory process to monitor state compliance withSecurity Council directives.68

C. The first To UN Ad Hoc Courts

If ultimately the international community views the ICTY and ICTR as suc-cesses generally, after many difculties in developing international criminallaw and bringing a few big sh and several medium sh to legal justice,

the Security Council deserves some credit for authorizing these courts.69

Likewise, if in due course, these ad hoc courts create a benecial impact onnational and regional political culture, peace, and reconciliation, which is amuch more complex and debatable consideration, then again the SecurityCouncil deserves whatever credit is appropriate.

Undoubtedly, these two courts have developed or claried a numberof legal points, so much so that some legal experts think the courts haverewritten modern international criminal law. It is court judgment rather thantreaty provision that now mandates: that individual responsibility for crimes

obtains in internal as well as international armed conict; that rape can bea war crime as well as evidence of crimes against humanity and genocide;that legal immunity of sitting public ofcials does not extend to certain majorcrimes; that certain acts in both jurisdictions were part of genocide; thatthere can be complicity through a joint criminal enterprise; and so on.70 Ofcourse these determinations were made by court ofcials and not by staterepresentatives sitting in the Security Council. Nevertheless it was the Councilthat created the institutions that allowed the determinations to be made.

Likewise, the Security Council originated the trail of decisions that

resulted in the likes of Slobodan Milosevic (a high Serb ofcial), RadovanKaradzic (a political leader of the Bosnian Serbs), and Ratko Mladic (aBosnian Serb general) facing legal justice in the ICTY; and Jean Kambanda(a prime minister), Jean-Paul Akayesu (a mayor), and Georges Rutaganda (ahigh ofcial of a Hutu militia) facing legal justice in the ICTR. This is no

68. See InternAtIonAl crImInAl lAW: cAsesAnd mAterIAls (3d ed. Ellen Podgor, Roger Clark, &Edward Wise eds., 2009).

69. Seethe encycloPedIAoF hUmAn rIGhts (David P. Forsythe ed., 2009). For support for thisemerging consensus, see the entries on the ICTY and ICTR, with suggested additionalreadings. The literature evaluating the two UN ad hoc courts that these entries summarizeis voluminous.

70. For a broad overview see the oxFord comPAnIonto InternAtIonAl crImInAl JUstIce (AntonioCassese ed., 2009).

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small record of accomplishment for modern criminal law. In the short term,some of these indictments and arrests, especially in the Balkans, led to anoutpouring of support for the alleged war criminals, as an illiberal national-

ism continued to rear its ugly head. In the long term, in both regions, theindictments, arrests, and convictions helped to delegitimize illiberal politicalviews and their adherents.

Particularly in the case of the ICTY, cooperation with the ad hoc courtoften did not occur because of some epiphany in favor of criminal law byheretofore recalcitrant parties. Cooperation occurred, often grudgingly overtime, because an important coalition backed the court. The United States,the European Union, the World Bank, and other actors, often (if inconsis-tently) backed the ICTY and threatened to withhold something that Serbia,

Croatia, or some other party dearly wantede.g., membership in the EU,foreign assistance, a loan, whatever. At times, the Security Council was partof this supporting coalition that leveraged certain actors and insisted oncooperation with the court.71

For example, in Resolution 1503 the Council urged Member States toconsider imposing measures against individuals and groups or organizationsassisting indictees at large to continue to evade justice, including measuresdesigned to restrict the travel and freeze the assets of such individuals, groups,or organizations.72 The Council then went on to name Serbia, Croatia,

Bosnia, and the Serb Republic in relation to the ICTY, and Rwanda, Kenya,DRC, and Congo in relation to the ICTR. This resolution put the named stateson notice; they were being watched and their cooperation or lack thereof,noted. The wording was fairly soft, urging rather than legally requiring co-operation, but the political effect was the same. The Security Council maynot have been the primary actor in the support network for the two courts,particularly because the wording in some resolutions was somewhat weak(due to compromises among the P-5), but over time, both courts, but par-ticularly the ICTY, could draw on important sources of support, including

the Security Council. The Council also paid attention periodically, to thepace of court proceedings and the replacement of judges and prosecutorsto provide continuity and smooth functioning.

The network of actors that supported the two ad hoc courts also en-sured that the legal justice pursued would only be partial justice. The ICTYProsecutor did not pursue the subject of possible NATO war crimes in the

71. SeePatrice C. McMahon & David P. Forsythe, The ICTYs Impact on Serbia: Judicial

Romanticism Meets Network Politics, 30 hUm. rts. Q. 412 (2008). On the inconsistencyof UNSC support for the two ad hoc courts, see Philippe Kirsch, John T. Holmes & Mora

Johnson, International Tribunals and Courts, inthe Un secUrIty coUncIl, supra note 5, at281.

72. Resolution 1503, S. C. Res. 1503, U.N. SCOR, 4817th mtg., U.N. Doc. S/Res/1503(2003).

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western Balkans because: 1) NATO offered no precise cooperation withpreliminary investigations and the Prosecutor had no way to compel thatcooperation; and 2) if the Prosecutor antagonized NATO member states,

that would undermine pursuit of Serb and Croat indictees, because coop-eration from those states was crucial to apprehending or pressuring othersto apprehend those persons. It is even clearer that regarding Rwanda, theProsecutor was not allowed to pursue probable crimes committed by Tutsiagainst Hutu, and was removed from her role there becausein partofwanting to do so. Important states and various UN ofcials insisted that theICTR focus remain on Hutu atrocities, lest the Tutsi-dominated governmentof Paul Kagame make it impossible for the ICTR to function.73

. Special Criminal Courts

Generalized evaluation of the various special criminal courts, even of atentative nature, is difcult, owing to the different circumstances and thedifferent Security Council role in each. Most of the proceedings remain un-completed at the time of writing. Probably the most successful is the courtfor Sierra Leone, if only because of the trial of Charles Taylor in a specialchamber. He was convicted in 2012 of complicity in atrocities. While this

court might not prove to have great impact on Sierra Leone itself, it mightcontribute over time to more careful policies from African rapacious dictators.

The most controversial court is probably the Special Tribunal for Lebanon,in part because it was a component of the Western P-5 states strategy tocontest the inuence in Lebanon of Iran and Syria, the latter having closerelations with Hezbollah. However, the STL actually further destabilizedLebanon, at least in the short term. While the Security Council deservesrespect for opposing political murder, if the Lebanese government provesunable to arrest and try those indicted, the creation of the court will have

served only to demonstrate yet again the weakness of the Lebanese statewithout notable advance in criminal law. Thus, the STL may turn out to bea bridge too far.

The hybrid criminal court in Cambodia is likely to become a largely sym-bolic venture in the eyes of the international community, perhaps reinforcingthe principle that atrocities do entail individual criminal responsibility. Notmuch else is likely to come out of these judicial proceedings, particularlygiven the maneuvers of the Hun Sen government to keep it a minor mat-ter and end it quickly. The Cambodian public does not seem engaged, thedefendants are old and few, and the process remains full of resignationsand other problems. The Security Council role was minimal to non-existent.

73. Seedel Ponte, supra note 22, at 23341.

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The courts in East Timor and Kosovo have not gured broadly in localor regional developments. The special chambers for war crimes in Bosnia isimportant in the sense that its proper functioning would allow, eventually,

the well considered closing down of the ICTY; but the arrest of Karadzic andMladic require the continuation of the ICTY for a few more years. Again, theSecurity Council role in judicial matters inside Bosnia was small and episodic.

E. The ICC

At the time of writing, the Security Council had referred two matters to theICC, the atrocities in Darfur, Sudan in 2005 and threats to civilians in Libya

in 2011. Neither state in question was a party to the Rome Statute.The rst referral came about in part because the Security Council, andparticularly the United States, was out of other feasible options. Variouscondemnations of the al-Bashir policies have already been put on record,some economic sanctions already put into place, and a Chapter VI peace-keeping mission already deployed. There was no political support for furtheruse of military force in an enforcement action, especially because leadingWestern military powers were already involved, and even bogged down,in places like Iraq and Afghanistannot to mention Libya. Hence, criminal

procedures, as in the Balkans in 1993, demonstrated some concrete actionbut avoided the more controversial notion of humanitarian intervention.However, upon indictment, al-Bashirto take just one exampleauntedhis status, continued to travel rather freely in many places (but not com-pletely so) and mobilized considerable African support by painting the ICCand its Prosecutor as a neo-colonial instrument. Despite his brutal policies,many states evidently were not prepared to back the ICC in putting him ontrial for atrocities.

The second referral was different because the focus on the criminal

record of Kadda and his top lieutenants (including one son) was combinedwith military action. This combination raised the question of the wisdomof seeking criminal justice while also seeking regime change. As widelydiscussed, if Kadda had no prospect of safe haven like Cdras when heleft Haiti or like brutal Salvadoran ofcials allowed to nd safe haven inthe US or Spain, Kadda had little motivation to do anything but stay andght to the bitter end. Under the Rome Statute, the Security Council canvote a postponement of juridical proceedings, without limit on the numberof such votes; this left open the possibility that negotiations with the leadersof the Kadda regime could include offers to postpone trials indenitely inresponse to desired behavior.

Since these two referrals have yet to play out fully, little can be said atthis point of a denitive nature. Certainly the Sudan case demonstrates that

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many states that became parties to the Rome Statute, or allowed the referralto be made by the Council, were not really interested in a robust imple-mentation of international criminal justice per separticularly if it seemed

to block a diplomatic solution. In Libya the Kadaf regime was swept away,the dictator himself was killed after capture, and a tug of war ensued overcustody of other regime ofcials. The new Libyan authorities insisted onconducting national trials, but the ICC demanded jurisdiction given the lackof a well-established national judiciary that could guarantee due processin Libya. The Security Council was not directly involved in these disputes.

V. CNCLUSIN

The Security Council has been at the center of many developments involvedin the renaissance of international criminal law after the Cold War, a re-surgence that has surprised many conservative or realist observers. Yet thisSecurity Council support for criminal law remains fragile as well as oftencontroversial.

The P-5 states have created a muddled record, primarily through shiftingand inconsistent policies. This has generated an unclear message as to theproper recourse for violations to international law: should one pursue criminal

indictments; or should one avoid that option in favor of diplomacy and non-juridical measures such as truth commissions and amnesties; or should onejust turn a blind eye?74 Through their policies they failed to demonstrate ananswer to key questions. Is persistent criminal justice in the national interestor not? Or is it in the national interest to proceed on a case-by-case basiswith little regard for consistency, perhaps based on the old maxim that aconcern for perfect consistency is the hobgoblin of little minds?

Moreover, double standards obviously persist. China, Russia, and the USrefuse to ratify ICC arrangements that would legally regulate them but push

the ICC on others. Particularly the US, which has been a major advocatefor such measures as the UN ad hoc courts and the Special Tribunal forLebanon, has sought to turn American exceptionalism into legal exemption-alism.75 This has long been true of its policies on international criminal law.

74. See Jack Snyder & Leslie Vinjamuri, Trials and Errors: Principle and Pragmatism inStrategies of International Justice, 28 Intl sec. 5, 56 (200304), who note three op-tions: consistent trials, truth commissions, and a pragmatic reading of context leadingsometimes to impunity when spoilers are strong. They favor the last option and do not

seem concerned that frequent by-passing of criminal justice might undermine a liberalrule of law in international relations. For a further discussion of the choices availablein transitional justice considerations see David P. Forsythe, Human Rights and MassAtrocities: Revisiting Transitional Justice, 13 Intl stUd. rev. 85, 9095 (2011).

75. See John Gerard Ruggie, Doctrinal Unilateralism and Its Limits: America and GlobalGovernance in the New Century, inAmerIcAn ForeIGn PolIcy In A GlobAlIzed World31,367, 46 (David P. Forsythe, Patrice C. McMahon & Andrew Wedeman eds., 2006).

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Regarding the Nuremberg and Tokyo trials, for example, the US insisted thatthe notion of crimes against humanity 1) apply to the Nazis and Japanese,but 2) be linked only to armed conict, lest someone take that legal concept

and address the systematic attacks on African-Americans especially in theAmerican south.76As noted above, the US was part of the network demanding that Croatia

and Serbia take unpopular decisions regarding the arrest of popular politicaland military gures, while the US refused to address its own record of tortureand cruel treatment of detainees in its counter terrorism policies after 9/11.77In the UN Human Rights Council after the end of the internal armed conictin Sri Lanka, the US urged the victorious government to do what Washing-ton refused to do itself, namely to address vigorously the national record

of alleged violations of human rights and humanitarian law.78

This politicalpartiality, which certainly played out in the Security Council, undercut thenotion of impartial legal justice and contributed to much discontent aboutSecurity Council and ICC actions. Another example to note is the abbrevi-atedif not abortedattempts of Carla del Ponte to look into NATO andTutsi war crimes. Western opposition to such inquiries sealed their fate.

Arguably, the central issue regarding contemporary international criminaljustice is how equal or partial that justice will be. Certainly, a fundamentaltenant of universal human rights is that all states are obligated to adhere to

those norms, even if it is recognized that universal norms should be appliedwith due regard to specic contexts. Political factors and special privilegesare very much in play when analyzing the Security Councils stances oncriminal law. In one sense, the strong do what they will and the weak dowhat they must. In another sense, however, the Councils decisions leadingto criminal trials have resulted in political trials, because those trials areselective, being dependent on political choice and political limitations. Thequest for impartial criminal justice remains to be fullled. Whether that goalcan be approached incrementally, with progressively less exceptionalism and

relatively more even handedness, will be answered by the future.

76. See, e.g., Andrew Clapham, Issues of Complexity, Complicity and Complementarity:

From the Nuremberg Trials to the Dawn of the new International Criminal Court, in FromnUremberG to the hAGUe: the FUtUre oF InternAtIonAl crImInAl JUstIce30, 4243 (PhilippeSands ed., 2003).

77. Forsythe, the PolItIcsoF PrIsoner AbUse, supra note 42, at 19596.78. Press Releases, U. S. Dept of State, Sri Lanka: Accountability for Alleged Violations of

International Human Rights Law (Taken Question) (28 Jun. 2011).

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