MANY VICTIMS of war crimes dream of seeing their oppressors tried by an international court. Seeing them tried twice on the same charges, however, suggests that the court may not be running smoothly. On January 28th in The Hague, hearings will resume in the second trial of Jovica Stanisic and Franko Simatovic, two former officers of the Serbian secret police accused of masterminding ethnic cleansing in Bosnia and Croatia in the 1990s. They were acquitted in 2013. But an appeals court ruled that judges had not properly applied the doctrine of “joint criminal enterprises”, which holds individual conspirators responsible for the crimes committed by their organisations, and ordered them to be tried again.
The retrial is occurring at a time when international criminal justice has lost some of the momentum it once had. The International Criminal Tribunal for the Former Yugoslavia (ICTY), which heard the case the first time round, was chartered by the United Nations in the 1990s, followed by similar tribunals for the conflicts in Rwanda and Sierra Leone. These courts laid new groundwork for prosecuting crimes against humanity, indicting hundreds of people and convicting more than 100.
But their mandates had all expired by 2017. To finish off remaining trials such as that of Messrs Stanisic and Simatovic, the UN chartered a follow-up court, the discouragingly named Residual Mechanism for Criminal Tribunals. Its business could drag on well into the next decade.
Critics charge that other international courts, too, have begun to seem like residual mechanisms. The International Criminal Court (ICC) was established in 2002 as a permanent tribunal that could be granted jurisdiction for conflicts anywhere in the world. Yet it has so far convicted fewer than ten suspects, all of them African. It has had to drop prosecutions of senior leaders in Kenya. On January 15th the court acquitted Laurent Gbagbo, a former president of Ivory Coast, on charges of fomenting violence to steal an election in 2010. It said the prosecution lacked sufficient evidence.
One theory for the lack of convictions is that the ICC bit off too much, too soon. “Expectations need to be reduced,” says Goran Sluiter, a professor of international criminal law at Amsterdam University. Early in its history, the court issued arrest warrants when it had enough evidence to indict, but not to convict, hoping to gather the rest later. That may have contributed to the acquittals of Mr Gbagbo and of Jean-Pierre Bemba, a Congolese warlord. A problem for such tribunals is the difficulty of proving criminal responsibility for generals and political leaders who gave vague or verbal orders which they now deny.
The ICC is broadening out beyond Africa, investigating possible crimes against humanity in countries including Afghanistan, Colombia, Georgia, Myanmar (via Bangladesh), Palestine, Ukraine and Venezuela. But America, which is not a party to the court, opposes giving it a role in Afghanistan. Russia will not co-operate with its investigations in Georgia or Ukraine.
Even the Netherlands, proud as it is of hosting the court, has chosen not to use it in the case of Malaysian Airlines flight MH17, the airliner shot down by a Russian missile in 2014 with 193 Dutch citizens on board. The Dutch plan to prosecute any cases against Russians in their own courts, which, unlike the ICC, can try suspects in absentia—an advantage, since Russia is unlikely to allow extradition. Yet it will take years, at best, to collect enough evidence to charge individuals. In the meantime, the Dutch may bring a case against the Russian state for failing to protect civilians, possibly at the European Court of Human Rights.
Venal governments are bound to reject the authority of international courts. Yet the demand for them has never been stronger, argues Elizabeth Evenson of Human Rights Watch. The ICC’s acquittals show it is not a Western kangaroo court, and it helps set standards for other bodies. Russia vetoed a push in the UN Security Council to give the ICC a role in Syria, but agreed to an international fact-finding mission. A new tribunal on the war in Kosovo in 1998-2000 has been launched in The Hague. In Senegal, a so-called hybrid court with an international mandate convicted Hissène Habré, a Chadian tyrant, in 2016. A similar court may be set up for South Sudan. As Ms Evenson says, “The terrain is rough, but the appetite is growing.”