U.S. Department of State legal adviser's views on international criminal justice.

• Author: Crook, John R.

In a wide-ranging presentation to audiences in both New York City and Leiden in November 2012, then U.S. Department of State Legal Adviser Harold Hongju Koh reviewed five phases of the development of modern international criminal justice, the U.S. contributions, and the future challenges. (1) In analyzing each phase, Koh emphasized the principles of legitimacy, professionalism, cooperation, and legality as crucial to effective international criminal justice.

Koh introduced these principles in his analysis of the initial phase, the Nuremberg trials.

First, legitimacy. Justice Jackson, in his November 21, 1945 opening presentation before the tribunal, memorably articulated why it was legitimate for victors to pursue international criminal justice, rather than simply vengeance. Second, as historical accounts indicate, the multinational teams of prosecutors and judges conducted themselves with enormous legal professionalism. Third, they cooperated surprisingly smoothly both with the Germans and with one another under extraordinarily stressful circumstances. Fourth, and perhaps most important, they sought to establish the Tribunal's legitimacy through a fundamental focus on legality. This means applying existing legal rules and developing jurisprudence in a reasoned way, not just pursuing a list of suspects or applying an aspirational version of the law. Among the most important of Nuremberg's contributions were its focus on individual responsibility, rather than collective guilt, and, critically, the acquittal of numerous defendants when the evidence to support conviction was lacking. (2) Koh then analyzed the seven Nuremberg principles, (3) describing the trials and the resulting principles as the source of the "'intellectual operating software' for the international criminal justice movement." (4)

Koh's second phase involved the ad hoc tribunals created by the Security Council in the 1990s, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).

When horrifying atrocities occurred in the Balkans and Rwanda, the United States led the push for accountability, resorting to the UN Security Council's Chapter VII authority to establish those ad hoc tribunals.... Nothing quite like the ICTY and ICTR had ever been attempted. Even in the United States and other countries invested in creating the tribunals, some quietly saw them as expressions of guilt for failing to prevent the atrocities, or distractions from the more serious work of peacemaking. The ICTY was simultaneously asked to deliver accountability and to help resolve a bloody conflict, all from a brand new architecture ... [while] Croatia, Serbia, and much of Bosnia remained openly hostile to the Tribunal. But like the Nuremberg Tribunal, first the ICTY, then the ICTR, built their bona fides by strengthening the four basic institutional attributes I just mentioned: legitimacy, legality, cooperation, and professionalism. First, legitimacy. The question of legitimacy continued to dog international criminal justice.... Despite their many accomplishments, the tribunals ... heard many criticisms about their legitimacy among the local populations. To this day, according to surveys, many Serbs tend to think that the ICTY is biased against Serbs, while Croats tend to think that the ICTY is biased against Croats. To overcome such a critique, a true judicial institution must focus in part on the second attribute of international criminal justice, namely, legality. The ICTY and ICTR began developing a modern jurisprudence of criminal liability that was based on existing law as applied to a modern ethnic conflict.... Third, cooperation. ... In the early days of the ICTY, national cooperation proved sporadic. The Tribunal found itself without custody of many indictees, particularly high-level ones, and many of the local players were openly hostile. But over the years, the cooperation and support of the international community noticeably improved, as the United States, together with many EU countries, tied foreign assistance to States in the Balkans to their apprehension of suspected war criminals and cooperation with the ICTY. The United States also entered into an arrest and surrender agreement with the ICTY. NATO and UN peacekeepers conducted arrests. U.S. cooperation helped not just in securing defendants but in procuring evidence. To take just one example, my office helped provide the ICTY Prosecutor with aerial images showing the construction of mass graves at Srebrenica, and the Trial Chamber in the Popovic case specifically relied on these aerial images to determine that the Bosnian Serb Army had engineered the mass killing and burial of...