When the first modern war crimes tribunal was created during the height of the Balkan wars, policy makers at the State Department thought no one of consequence would ever be arrested, a former insider says.
Now, the ex-president of Liberia is on trial. A vice president of Congo is in custody. The current president of Sudan is under indictment. Former leaders of Cambodia are in the dock. And the once all-powerful president of Yugoslavia died in a jail cell.
It all seemed so impossible just 15 years ago.
The arrest Monday of Radovan Karadzic, the accused architect of Bosnia's bloody four-year war and of Europe's first genocide since the Holocaust, highlights the long and winding path of international justice. It's a tale of successes along with many teething pains.
Legal landscape
Karadzic, the leader of the Bosnian Serbs during the 1992-95 war, evaded arrest for 13 years after he was indicted for the massacre of 8,000 Muslim men and boys in the U.N.-declared safe zone of Srebrenica in 1995. His lawyer in Belgrade said he will appeal the order to extradite Karadzic to U.N. authorities in The Hague where he is to stand trial.
Since the creation in 1993 of the International Criminal Tribunal for the former Yugoslavia, a confusing array of war crimes courts have cluttered the legal landscape, all with the declared purpose of punishing the leaders, instigators and planners of mass crime in times of conflict.
Scores of people, mainly Serbs from the former Yugoslavia and Hutus from Rwanda, have been convicted.
In the process, the courts have refined international law.
Heads of state are no longer immune. General amnesties are no longer accepted unquestioned. Using children in war is outlawed. Rape has been defined as a weapon of war, and abusing women or forcing them into marriage are punishable crimes. Looting and plunder — the age-old prize for warriors — adds prison time.
"The cornerstone has been laid for another 100 years worth of jurisprudence, which has faced down this beast of impunity that has nibbled on the edges of civilization for a century," said David Crane, a law professor at Syracuse University and the former U.N. prosecutor who indicted former Liberian President Charles Taylor.
Meeting goals
Beyond crimes that have occurred, the threat of prosecution also is meant to deter others. That goal has been met — with measured success.
Michael Scharf was working for the State Department when the U.N. Security Council created the Yugoslav tribunal. He says most of his colleagues believed the tribunal would be a symbolic court, mainly pursuing low-level officials and soldiers.
But that was then, and this is now.
"People are really beginning to think of these tribunals as an effective deterrent. That is just now happening," said Scharf, the director of the Frederick K. Cox International Law Center at Case Western Reserve University.
"We are just getting critical mass of high level cases like this," he said, referring to Karadzic's arrest.
Ethnic slaughters still rage in Sudan's Darfur region, Iraq and Congo. Lesser conflicts continue in a dozen other places, from Sri Lanka and Indian Kashmir to Colombia and the Middle East.
Both Scharf and Crane believe the risk of prosecution was a factor that prompted the political settlement in Kenya earlier this year and in the promise by Zimbabwe's President Robert Mugabe to end a campaign of violence against his political opponents.
"Mugabe is hearing the footsteps behind him," said Crane.
The tribunals, in their infancy, are still in development.
Down to politics
Judges in the case of Slobodan Milosevic allowed the former Serb leader to manipulate and delay the proceedings — until he dropped dead in his jail cell of a heart attack in his trial's fifth year in 2006.
The ongoing case of former Congolese warlord Thomas Lubanga, the first case to go before the new International Criminal Court, was on the verge of collapse because of contradicting rules that allowed the prosecutor to keep some evidence confidential while demanding that he turn over all material he comes across that could help the defense. ICC judges are still working on compromise solutions that will allow the trial to begin.
But the most serious flaw in the tribunals is outside the courtroom: They may be instruments of justice, but they are creatures of politics.
The long delay in arresting Karadzic and his top military commander, Gen. Ratko Mladic, who is still a fugitive, is being seen as a deliberate political act by the Serbian government. Karadzic's arrest came only after the previous government was ousted in elections. Serbia's new, pro-Western government is interested in getting into the European Union, which has long demanded the arrests of war crimes suspects.
"There is a change of political will," in Belgrade, said Florence Hartmann, the longtime aide of former Yugoslav prosecutor Carla Del Ponte. "Europe has changed its mind and convinced Belgrade that it was the best way to go, and I think together they have made a big step."
Politics are also at work in Africa. Leaders on the continent barely criticized the killings and beatings by government supporters during Zimbabwe's disputed election process and have refused to call Mugabe legally to account. Sudan's President Omar Al-Bashir was defended by his peers even after the chief prosecutor of the International Criminal Court indicted him for genocide in Darfur.
"It always boils down to politics," said Crane. "The legal aspects may be relatively clear, but turning over senior government officials or a head of state is purely a political decision."