International criminal law – justice or mirage?

It is indefensible to ignore the debate on international criminal law, all the more when the pretext for doing so involves relying upon the misery of war crimes victims as a means of perpetuating a branch of the legal profession. Humanity improves by examining vexed subjects until the best ideas win. To stifle debate is to suppress the social progress to which we surely all aspire.

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By Matthew Parish

On 10 April 2013 I had the honour to be invited by H.E. Vuk Jeremić, President of the United Nations General Assembly, to moderate a panel discussion before the world parliament. The discussion was part of a thematic debate on the role of international criminal justice, twenty years after the establishment of the International Criminal Tribunal for the Former Yugoslavia. The theme of the panel was justice: do international criminal courts achieve substantial justice, and at what cost?

The panel I moderated was composed of several distinguished participants, including General Lewis Mackenzie, former UNPROFOR Commander for Sector Sarajevo; Professor Charles Jalloh, Professor of Law at the University of Pittsburgh and a renowned commentator on the International Criminal Court; John Ciorciari, Professor of Public Policy at the University of Michigan; and Savo Štrbac, President of VERITAS, a Belgrade-based NGO cataloguing war crimes committed in the Yugoslavian wars.

The debate was extended and comprehensive, as each speaker brought experiences of international criminal justice in different parts of the world to bear to the discussion. There were a number of cross-cutting themes. Amongst them, no fewer than five principal topics prevailed.

The growth of international criminal law

The first issue is one of historical perspective: why has there been such a proliferation of international law in just the last twenty years? The first international criminal trials in modern times followed the end of the Second World War. But then there was a hiatus of almost 50 years before the next international criminal court, the International Criminal Tribunal for the former Yugoslavia (ICTY), was created by the United Nations in 1993. In the intervening period there were many wars all over the globe and, as is inevitably the case in every war, many war crimes. But none of those crimes were prosecuted, and the idea of war crimes prosecutions lay fallow until the wars in the former Yugoslavia. What changed in the intervening period?

The answer is complex, but reasons may include the end of the Cold War; the emergence of a single superpower with a distinctive view of international law; the failure of the international community effectively to respond using military and diplomatic means to the unfolding civil war in the former Yugoslavia; and a sense of international shame prompted by mass media depictions of the atrocities of war. In short, the establishment of the first recent international criminal tribunal may have been driven more by a sense of guilt on the part of the international community, than a coherent and clearly articulated policy goal.

The notion that one might instead wait until the Yugoslavian wars were over, and then try criminal defendants in home courts, appears not to have been considered at all at the time. Instead the desire to internationalise the trying of war crimes became widespread elsewhere. Once the precedent had been set with the ICTY, Rwandan, Sierra Leonean, Cambodian, East Timorese and Lebanese analogues followed. A trend had been set that continues to the present day, with the emergence of the International Criminal Court to try war crimes committed worldwide.

International justice: at what cost?

The second question to be addressed in the context of international criminal justice is the cost and time involved. By any domestic standards, it is phenomenally expensive and slow. In the years 2008-2009, the ICTY had a budget of US$188 million. The International Criminal Tribunal for Rwanda (ICTR) has been spending well over US$100 million a year. These figures dwarf the costs of domestic criminal courts. London’s Old Bailey, perhaps the world’s best known criminal court that tries the most serious of offences committed in England, has a budget of just a few million dollars a year. Yet its caseload is immeasurably higher, trying perhaps 500 to 700 exceptionally grave offences per annum.

By contrast the ICTY has indicted a total of only 161 defendants in the course of twenty years of operation; the ICTR half that. Moreover the time spent on each case is extraordinary. Vojislav Šešelj, who voluntarily surrendered to The Hague in 2003, has been there ever since without even a first-instance verdict being rendered. Six to seven years has become a normal period for the trial cycle. In the ICTR there are several defendants who have been in custody without a final verdict since 1996. Detention on remand for over ten years is the norm.

Despite meagre caseloads and massive budgets swallowing billions of dollars in total, international courts seem incapable of managing their caseloads in accordance with the most elementary standards of good practice. In any domestic system of criminal justice, delays if this kind would be a national disgrace.  So would the lackadaisical approach of the International Criminal Court. Despite being established in 2003, it has so far completed only a single trial notwithstanding absorption of hundreds of millions of dollars in international taxpayers’ money. The ICTY and ICTR have each spent tens of million dollars per case completed. Their record is so derisory almost as to defy belief. One of the enduring mysteries of international criminal justice is how a profoundly desultory and wasteful system could be created and then permitted to continue unchecked.

What is international criminal law? Is it law at all?

The third question that arises is one of jurisprudence: the relationship between domestic and international criminal law. International criminal courts do not employ conventional categories of criminal offence found in domestic law. This curiosity calls for explanation.

Many or even most war crimes involve murder. In virtually every domestic legal system, the crime of murder is carefully defined. For example in the common law tradition, it involves two components: an actus reus, meaning a positive physical act which causes the death of another; and a mens rea: a mental state of the defendant, involving an intention to cause death or serious injury, or a conscious awareness that death may occur. Negligence, or failure to anticipate, are not enough. Doctrines of group responsibility also exist, such as conspiracy; but they require active participation in the actus reus and strictly circumscribe liability where co-participants lacked the requisite mens rea of the primary offence.

In international criminal law, these distinctions and subtleties have been washed away. Instead the categories of criminal responsibility created are wide and ambiguous. A doctrine of group military responsibility has been developed, but without any of the detailed discriminations found, for example, in the domestic criminal law defence of duress.

What if a person was conscripted into an army, or forced to participate in a military operation now deemed illegal? What level of threatened sanction for disobedience excuses them from criminal responsibility? The general answer in international criminal law, unlike in domestic law, is none.

Worse, defendants may be found guilty of failing to prevent crimes committed by others, even if they did not know those crimes were taking place. Perhaps most alarming of all, the emergent doctrine of “joint criminal enterprise”, a chillingly flexible theory of criminal liability, permits an international criminal court to conclude that all the participants in a military operation are guilty for the crimes of a single individual, even if none of the other participants knew that the crimes in question were being committed.

This is a doctrine of collective responsibility. It was promulgated in the very first case before the ICTY, Prosecutor v Tadić. Mr Tadić was a member of a Serb militia who entered a village in Bosnia. When the militia left the village, several villagers were found dead.  There was no evidence that Mr Tadić played any part in their deaths or had even seen them. Nevertheless he was convicted of their murder. He was deemed part of a joint criminal enterprise that resulted in their deaths. Since that case (1997), this uncircumscribed doctrine has been applied in ever more cases and in ever more flexible ways. The greater majority of international criminal prosecutions now rely upon this theory of criminal responsibility. Why is this doctrine, a new legal theory developed quite separately from any theory of domestic criminal law, so prevalent?

Conviction rates

This leads to our fourth question, one of why conviction rates before international criminal tribunals are so exceptionally high. Before the ICTY, the conviction rate on a not-guilty plea is almost 90%. This contrasts alarmingly with conviction rates before domestic criminal courts. In the United Kingdom, jury trials on a not-guilty plea typically result in a conviction rate of slightly more than 40%. The reason why convictions before international criminal courts are so frequent may be because the legal tests being used to determine a defendant’s liability are sufficiently flexible to render a finding of guilty highly likely.

Does this reflect the reality of moral culpability in armed combat? Amidst the fog of war, is it proper to draw the net of criminal liability so widely that the vast majority of both military and political actors are deemed guilty of serious crimes? The concern here is about the existence of an inherent incentive on the part of judges to make findings of guilt. Their desire to do this may be to make their own names in securing conviction of persons adjudged responsible for crimes of historical significance. If this is indeed the dominant judicial incentive, then the flexible jurisprudence of joint criminal enterprise those judges themselves fashioned may assist them in achieving their goal.

Moreover the statistics reveal partiality in the ethnic identity of those prosecuted and convicted. At the ICTY, substantially more Serbs have been prosecuted, and sentenced to substantially longer sentences of imprisonment, than any Croats, Bosnian Muslims or Kosovar Albanians. One might retort that this statistic can be explained by a hypothesis of higher rates of war crimes committed by Serb forces and their participation in three separate wars under the Tribunal’s jurisdiction (Croatia, Bosnia and Kosovo). But that theory, even if substantiated by facts, could not explain the substantially higher conviction rates (as opposed to prosecution rates) for Serbs than for other national groups. It is hard to understand why evidence against Serb defendants is intrinsically likely to be stronger than evidence against other defendants. The only credible explanations are either prosecutorial bias (prosecutors put more resources into trials with Serb defendants) or judicial bias in convicting defendants.

Statistics matter, because they reveal patterns in judicial decision-making that become hard to explain away without inferences of partiality. These patterns are every bit as concerning as the patterns revealing far higher rates of incarceration of black males in the United States than their due share of the country’s population. They suggest that something in the system of criminal justice has gone fundamentally wrong.

What is the purpose of international criminal law?

This brings us to our final question about the role of international criminal courts: the policy goals being pursued in internationalising war crimes prosecutions. Since war crime trials reveal a pattern of only the losing side being prosecuted, they may create perverse incentives: a desire to win the war at all costs to avoid prosecution may mean that no holds are barred and hence war crimes may become more likely.

The prospects of war crimes trials also creates an incentive for senior wartime leaders not to step down or agree armistices, lest they subsequently be prosecuted after leaving power. There is a compelling argument that war crimes trials exacerbate the wars whose crimes they exist to try, and make those wars harder to conclude. There is scant evidence war crimes trials have any deterrence effect at all. Wars are ended by military victories or diplomatic compromises, not by judges. Likewise there is little evidence that international trials promote post-war reconciliation: undertaken at an often wide cultural and geographical distance from the fighting, those trials are often barely understood by the local population and the process is frequently perceived as unsatisfactory and unfair by all sides to a civil conflict. Whatever the outcome of a trial, old wounds are reopened that might better have been left closed.

In the face of these flaws, why do international criminal courts persist? The answer may be more to do with writing history than adjudicating guilt. In international criminal justice we are at risk of watching lawyers steal grounds from historians. In wars the truth is often hard to divine, as each side has its own competing narrative. Political considerations may determine which narrative prevails in the immediate post-war period. As politics subsides, a more nuanced version of the truth may subsequently emerge. That may prove more difficult where international criminal courts have pronounced upon the events of war with institutional legitimacy and procedural finality. International criminal adjudications may foreclose future historical debate. It is hard to understand why this could be a good thing.

The policy issues surrounding international criminal justice are intricate and multi-faceted. International criminal law is a science in its infancy. Barely twenty years old, there is much which must be improved if the discipline is to flourish. Yet there is also a more fundamental question, namely whether international tribunals are the most appropriate venues for the trial of war crimes at all. Domestic court systems have their imperfections. Yet the countries of the former Yugoslavia and Rwanda have proven themselves capable of holding tolerably fair war crimes trials after civil conflict has subsided.

In many cases this has been done at a fraction of the cost of international criminal courts, and with fewer political shadows. The fear sceptics about international criminal law harbour is that the discipline was developed as a response to wars where the western powers felt that something must be done but could not decide what. Hence they settled on creation of international criminal courts: facially grandiose, but imperfect and ineffective. These institutions, initially the progeny of international community indecision, then mutated into a sizeable industry of questionable value, legality and fairness. Perhaps we would be better off closing this industry down.

That is the challenge facing those who would defend international criminal justice. Its champions should engage this challenge, by debating with sceptics such as me. But as a rule they refuse to do so, and the fear arises that this is due to the intellectual insecurity about the arguments they espouse. My criticisms may be misplaced, and maybe the logic of my concerns can be defused. But I am willing to debate and defend my positions, and where I have made errors to concede as much.

It is indefensible to ignore the debate altogether, all the more when the pretext for doing so involves relying upon the misery of war crimes victims as a means of perpetuating a branch of the legal profession. Humanity improves by examining vexed subjects until the best ideas win. To stifle debate is to suppress the social progress to which we surely all aspire.

Matthew Parish is a partner in the Geneva office of the international law firm Holman Fenwick Willan, where he specialises in international law and international dispute resolution. From 2005 to 2007 he was the Chief Legal Advisor to the International Supervisor of Brčko, a division of the Office of the High Representative of Bosnia and Herzegovina. He publishes extensively on the law and politics of the Western Balkans and on issues in international law. In 2013 he was nominated as a Young Global Leader by the World Economic Forum, and Bilan magazine identified him as one of the three hundred most influential people in Switzerland.

This views expressed in this paper are his own and do not necessarily reflect the opinions of any organisation with which he is or has been associated.

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