It was exactly the kind of case the International Criminal Court was created to investigate: Yemen’s autocratic leader was clinging to power, turning his security forces’ guns on unarmed protesters. Hundreds were left dead, and many more were maimed.
But when Yemen’s Nobel laureate, Tawakkol Karman, traveled to The Hague to ask prosecutors to investigate, she was told the court would first need the approval of the United Nations Security Council. That never happened, and today the former president, Ali Abdullah Saleh, is living comfortably in Yemen’s capital, still wielding influence.
Now, as the world confronts increasing evidence of atrocities on a much vaster scale in Syria as President Bashar al-Assad’s government battles a growing rebellion, there are signs that Mr. Assad is likely to evade prosecution, much as Mr. Saleh has.
The men have not been prosecuted because they have powerful allies, underlining what critics say are crucial flaws in the court’s setup. That now threatens to undermine the still-fragile international consensus that formed the basis for the court’s creation in 2002: that leaders should be held accountable for crimes against their own people.
Already, the failure to act against some leaders challenged by the Arab Spring is emboldening critics who see the court as just another manifestation of a deeply undemocratic international order. So-called justice, they say, is reserved for outcast leaders, including an assortment of African officials from weak states with few powerful patrons.
“We have the feeling that international justice is not ruled by law,” said Rami Nakhla, an exiled Syrian activist and member of the Syrian National Council, an opposition group. “It is ruled by politics, it is ruled by circumstances. It depends on the situation, it depends how valuable this person is. That is not real justice.”
Since it was created, the International Criminal Court has signed up 120 member states, including many nations that perpetrated or suffered some of the 20th century’s gravest atrocities: Germany, Poland, Japan, Cambodia, the Democratic Republic of Congo, Sierra Leone, Argentina and Colombia. The long-held dream of a court with universal jurisdiction that could prosecute crimes against humanity committed anywhere is today closer than ever to being a reality.
Three former heads of state are in custody of international courts, and one, Charles Taylor, has been convicted of war crimes. The International Criminal Court has opened multiple investigations in some of the last decade’s worst conflagrations, and convicted one defendant, a Congolese warlord who turned young boys into killers. The trial of a former Bosnian Serb general, Ratko Mladic, is scheduled to resume Monday at the tribunal created to try accused war criminals from the former Yugoslavia.
The International Criminal Court was meant to replace the ad hoc courts created for a single conflict like Sierra Leone and Yugoslavia with a tribunal with global reach to investigate continuing atrocities. But the court does not have truly universal jurisdiction. It can investigate crimes only in nations that have signed the Rome Statute, which created the court, unless the Security Council refers a case.
In the Middle East, where few nations have signed and many have strong allies on the Security Council, authoritarian leaders can proceed with impunity. That threatens to undermine confidence in the entire system.