The politics of war crimes tribunals.

Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law - Discussion

This panel was convened at 9:00 a.m., Thursday, April 10, by its moderator, David Crane of Syracuse University College of Law, who introduced the panelists: Valerie Oosterveld of the University of Western Ontario, Faculty of Law; M. Cherif Bassiouni of DePaul University College of Law; and Michael Newton of Vanderbilt University Law School. * ([dagger])


By David M. Crane ([double dagger])

Throughout the 20th Century, mankind perpetrated unspeakable acts upon themselves. Over 200 million persons died, well over 100 million at the hands of their own governments. The reaction from the international community ranged from silence at the beginning of the century to formative attempts to create judicial mechanisms at the end of that century.

In each instance, from the Belgian Congo, Armenia, Germany, Soviet Union, China, and Cambodia, to Romania, Uganda, Yugoslavia, Rwanda, and Sierra Leone, politics was and remains the central force in the international response to atrocity. It is the bright red thread that runs through the spectrum of political, diplomatic, and legal reaction to international crimes.

For a century mankind has slowly recognized that accountability is a cornerstone to a world order based on the rule of law. In the modern era of the United Nations, with its central theme regarding the peaceful resolution of conflict, holding errant leaders accountable for their misdeeds has achieved a varied yet permanent place in the panoply of tools available to the international community.

That permanence became a reality when the world came together in Rome to sign a statute that would create an international criminal court whose charter was to seek justice for victims of war crimes, crimes against humanity, genocide, and aggression. The ICC was a creature of many political compromises, particularly in the area of prosecutorial discretion. In some ways politics has been permanently sewn into the fabric of the statute reflecting the political concerns of the various state parties.

It is a naive prosecutor who does not recognize how important and pervasive politics affects mandates, investigations, indictments, even trial proceedings. This fact has to be dealt with, considered, and used to ensure justice ultimately prevails. Political consideration at the international level is not necessarily a bad thing as it ensures that a certain reality is inserted into the process that might temper zeal, naivete, and altruistic pursuit of justice that may, in the end, do more harm than good. Politics, diplomacy, law, practice, and culture are each essential ingredients in the preparation of a plan to hold accountable those who commit mankind's gravest crimes.


As the founding Chief Prosecutor of the international criminal tribunal in West Africa, called the Special Court for Sierra Leone, I made numerous political, diplomatic, practical, cultural, as well as legal decisions. One of the more important ones was indicting heads of state, among others, who bore the greatest responsibility for war crimes and crimes against humanity stemming from the ten-year-long civil war in Sierra Leone in the 1990s.

As we worked through our strategic and prosecutorial plan, it became evident in the early investigative stage that three heads of state were potentially culpable for the atrocity of West Africa in the last decade of the 20th Century, certainly mankind's bloodiest century. The West African Joint Criminal Enterprise that plagued West Africa and its peoples existed for over twenty years, led by Muammar Ghaddafi of Libya, Blase Campare of Burkina Faso, and Charles Taylor of Liberia. Each was culpable, particularly Ghadaffi and Taylor.

Ghaddafi himself was the instigator of a geopolitical plan to essentially take over West Africa, placing his surrogates in various key countries, using diamonds, gold, timber, and petroleum to finance the enterprise. Both Taylor and Campare were graduates of Ghaddafi's terror camps in the 1980s and were two of his key lieutenants in this effort. Sierra Leone and its diamond fields were of particular interest to them.

The Special Court for Sierra Leone had a realistic mandate to prosecute those who bore the "greatest responsibility" for war crimes and crimes against humanity stemming from...

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