However, these institutions are more robust than they seem: the political and financial investment made in them by states doesn’t disappear overnight. For example, Crimes of War, in 2006 about the Special Court finances:

“The current gap is astonishing: only nine million dollars have been pledged, and the court may run out of cash in the summer [2006] unless more money arrives.”

That was two years ago. Also see former ICTY Chief Prosecutor Carla del Ponte in 2004, about ICTY’s completion strategy:

“The third area of concern impacting on the completion strategy which is beyond our control is the provision of adequate resources to my Office.”

It’s far from perfect, but budget crisises are as much part of the international criminal justice setup as they are any other bureaucracy.

The SCSL made an error in moving Taylor’s trial out of Freetown in the first place, which was for non-disclosed “security” reasons, but I think was intended to have a cost-cutting effect as well (although I could be wrong there). It’s finances have been rocky since the preparatory missions before it’s creation. They’ve been fighting with donors every year to keep the core budget sorted. But it’s 5 years and counting, and the trials are still running…

And over there is Charles Taylor, who could very well go free for reason of lack of funds for the tribunal.

Ho hum.

“The concept of international justice is great but it is purely academic without some sort of apprehension and enforcement mechanism.”

The form of that mechanism has to be different to reflect things like the political possibilities and dynamics of the state system, and the systems and massive resources at the accused’s disposal. These people have nothing at all in common with perpetrators of regular, domestic crimes. It’s not a question of the good ol’ beat cop spotting something fishy, apprehending and handcuffing the bad guy anymore. It’s a deep game, where glacial processes of pressure and attrition are used, taking years to deliver results.

We also need to consider the aspirations of senior government officials: they have to do something after losing office, which they inevitably do. An ICC indictment affects the possibilty of a nice quiet, prosperous retirement, involving international travel. This must change the incentives of the now somehow, particularly for others in the political systems where indictees are the top dogs.

“How is an unenforceable indictment of a mass murderer anything more than judicial masturbation?”

Slobodan Milosevic and Charles Taylor hoped that was the case when they were Heads of State. The same arguments about unenforceability were wheeled out when their indictments were publicised as well, but the process eventually yielded a result. The beard spared Karadjic for a while, but there he is, in the dock, denying the charges and calling the system unfair.

The concept of international justice is great but it is purely academic without some sort of apprehension and enforcement mechanism.

The same could be said of the concept of genocide itself; in fact, that was exactly the sort of argument that Raphael Lemkin came up against when he was trying to get the concept accepted by the international community. I’m not saying that the argument has no merit – clearly we do need to have enforcement mechanisms. Yet if we agree that something is a crime, surely the question is whether we can set up an enforcement mechanism, not whether we should ignore the crime?

When I was setting up GBV programs in N. Uganda, we explicitly decided to forego a legal component to the program. Why?… The risk to the victim outweighed the negligible prospects of a favorable legal outcome. So we took an approach of instead providing for the survivors’ health needs and facilitating protective social structures. To do otherwise would have been extremely reckless.

Yes, but one could also argue that by failing to address the legal questions, your organisation perpetuated the status quo and returned the beneficiaries to the same legal limbo from which they came. I respect the practical considerations of your responsibilities towards your beneficiaries, but at the same time I am increasingly uneasy about a humanitarian ethos which essentially relies on keeping those beneficiaries in the dark about their rights.

The ICC-Bashir case seems to be the same principle, multiplied by a factor of about 1.5 million. How is an unenforceable indictment of a mass murderer anything more than judicial masturbation?

Because it sends a clear signal, not just to Bashir but to other heads of state who fail to take responsibility for the protection of their citizens. I am also coming to believe that the charges are as much a challenge to the international community to do something about actions which everybody agrees is unacceptable but which nobody will actually do anything about.

What it comes down to is this: “And if not now, when?”

Gotta part ways with you on this one. You both know where I work, so obviously I’m not an objective party.

The concept of international justice is great but it is purely academic without some sort of apprehension and enforcement mechanism. When I was setting up GBV programs in N. Uganda, we explicitly decided to forego a legal component to the program. Why? Because the legal system up there was so fragile, and so unreliable, that filing cases would expose the plaintiff to a high risk of retaliation, with no practical protections for her and no plausible expectation that the case would ever be tried. The risk to the victim outweighed the negligible prospects of a favorable legal outcome. So we took an approach of instead providing for the survivors’ health needs and facilitating protective social structures. To do otherwise would have been extremely reckless.

The ICC-Bashir case seems to be the same principle, multiplied by a factor of about 1.5 million. How is an unenforceable indictment of a mass murderer anything more than judicial masturbation?