RUND ABDELFATAH, HOST:
In the beginning, there was only darkness, until one day, the breath of life proved ready, and the Egyptian sun god, Ra, emerged and bathed the world in light. But the days were not endless. At sunset, Ra descended into the underworld, where every night, the giant serpent, Apep, would attack Ra's heavenly barge, intent on destroying all life and plunging the world into darkness. And every night, Ra would vanquish the serpent, ensuring that the sun would rise at dawn.
MICHAEL BRYANT: Thereby, in this action, or this act of slaying, Ra was able to create the cosmos.
RAMTIN ARABLOUEI, HOST:
This is Michael Bryant.
BRYANT: I'm a professor of history and legal studies at Bryant University in Smithfield, R.I.
ARABLOUEI: The story of Ra's nightly battle created order in the world for ancient Egyptians, including for the pharaoh, Ra's avatar on Earth.
BRYANT: The enemies of the pharaoh were likened to night and to disorder, and chaos. And, of course, the pharaoh and his army was then considered to be on the side of Ra.
ARABLOUEI: Which meant that violence, loss and death in times of war could be divinely justified.
BRYANT: But, of course, this has very little to do with the humanitarian sort of motive that guides our modern understanding of international law and of war crimes today.
ARABLOUEI: Since the 1800s, there's been an international attempt to make sense of war and constrain its horrors by codifying the rules of war and establishing boundaries over what is and isn't acceptable.
DAVID BOSCO: A war crime is a serious violation committed during a time of armed conflict.
ARABLOUEI: This is David Bosco. He's the author of "Rough Justice: The International Criminal Court In A World Of Power Politics."
BOSCO: And it can involve a lot of different things, including, you know, abusing a prisoner of war or attacking civilians, using certain types of weapons, torture, et cetera.
BRYANT: I think, at the most basic level, the very concept of war crimes are violations which are widely acknowledged as being abhorrent.
ARABLOUEI: But what is abhorrent? Who decides? And who's legally held to account?
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STEVE INSKEEP, BYLINE: News from the International Criminal Court, which is a global human rights court in The Hague in the Netherlands. It has announced it is seeking arrest warrants for leaders of both Hamas and Israel.
UNIDENTIFIED REPORTER: Dozens of countries have taken the floor at the United Nations' top court in The Hague to insist that Ukraine has the legal right to sue Russia for genocide.
INSKEEP: Today the United Nations' highest court ordered Israel to cease its offensive in the southern Gaza city of Rafah.
JULIE MCCARTHY, BYLINE: Criminal law experts say murder, rape and torture, all alleged against Russian troops in Ukraine, constitute potential war crimes.
ARABLOUEI: International courts have made headlines a lot in recent months. An arrest warrant has been issued for Russian President Vladimir Putin for the war crimes of unlawful deportation and unlawful transfer of children from Ukraine to Russia.
ABDELFATAH: Arrest warrants have been requested for senior Hamas officials - Yehiya Sinwar, Mohammed Diab Ibrahim al-Masri and Ismail Haniyeh for crimes, including, quote, "murder, taking hostages and torture."
ARABLOUEI: Arrest warrants have also been requested for Israeli Prime Minister Benjamin Netanyahu and Israel's minister of defense, Yoav Gallant, for crimes including starvation of civilians as a method of warfare and willfully causing great suffering.
ABDELFATAH: And a separate case against Israel is investigating allegations that its actions are, quote, "genocidal in character." The cases signal a significant moment for the role of these international courts. It's the first time, for example, that they have targeted the leader of a close ally of the U.S. So what are these courts, where did they come from, and how did they come to decide the rules of war?
ARABLOUEI: I'm Ramtin Arablouei.
ABDELFATAH: And I'm Rund Abdelfatah. Today on THROUGHLINE from NPR, we're going to travel from the battlefields of the U.S. Civil War to the rubble of two world wars to the hallways of The Hague to trace modern attempts to define and prosecute war crimes.
PAMELA CHAMBERS: Hi. This is Pamela Chambers (ph). You're listening to THROUGHLINE on NPR.
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ARABLOUEI: It's early morning in Lawrence, Kan., in 1863. The U.S. Civil War is raging across the country. But at this moment, before the sun has come up, the town is quiet and serene until...
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ARABLOUEI: ...A group of roughly 400 Confederate guerrillas led by William Quantrill, a horse thief and outlaw, begin to attack the town. They kill civilians and set Lawrence, a known abolitionist stronghold in the free state of Kansas which bordered the slave state of Missouri, on fire.
UNIDENTIFIED PERSON #1: (Crying).
ARABLOUEI: The attack was known as the Lawrence Massacre or Quantrill's Raid.
BRYANT: When they reflect on the Civil War, I think a lot of people would think of the major battles, you know, whether it's Shiloh or Gettysburg or the Battle of the Wilderness and so forth. And certainly, these were very violent affairs without a question.
ARABLOUEI: But one of the most violent was along the border with Missouri and Kansas.
BRYANT: You had the Union Army, and you also had settlers living there. But you also had groups of irregular forces.
ARABLOUEI: Irregular forces - so people who took it upon themselves to fight, not as part of an official uniformed army. They were guerrilla fighters.
BRYANT: Who were fighting on behalf of the Confederates. And they were attacking not just the Union armies as guerrilla fighters, but they were also attacking civilians.
ARABLOUEI: The Civil War was the most violent war the U.S. had ever experienced. Neighbors turned on each other. Brothers fought against brothers. And now guerrilla fighters were going after civilians.
ABDELFATAH: And the Union Army had a conundrum. Should they treat those fighters the same way they would Confederate soldiers, as prisoners of war? Were guerrilla fighters soldiers or criminals?
BRYANT: If they were treated as criminals, then, quite frankly, they had no rights really hardly at all at that time. They could simply execute them.
ABDELFATAH: Even before the Lawrence Massacre, the Union Army had been asking itself these tough questions. So to get some much-needed guidance, the Union turned to a law professor named Francis Lieber. Born in Berlin in 1798, Lieber was a war veteran who'd been left for dead while fighting Napoleon during the Waterloo campaign. Scarred by this experience, Lieber thought war should be constrained somehow. And even before the U.S. Civil War broke out, he'd been giving lectures in the U.S. on how to make war more civilized.
BRYANT: Lieber comes up with an analysis, which is still worth reading today, and he distinguishes guerrillas and what he calls irregular forces from partisans.
ABDELFATAH: According to Lieber, partisans who were part of a formal established army were protected, but guerrillas, like those that led the attack on Lawrence, were not.
BRYANT: The bottom line in his essay is that the guerrillas and the non-uniform people who were kind of fighting without a great deal of structure to their ranks and didn't really have a recognized hierarchy, were fighting outside the ordinary structure of the military - these could be treated as guerrillas.
ABDELFATAH: Lieber's arguments were so convincing that the Union Army and the Lincoln administration tapped him for an even bigger job - revise the rules of warfare for the entire Union Army.
BRYANT: His kind of the masterwork - his masterpiece, which was his code, General Orders No. 100.
UNIDENTIFIED PERSON #2: Lieber Code, Article 155. All enemies in regular war are divided into two general classes - that is to say, into combatants and noncombatants or unarmed citizens.
ABDELFATAH: Also known as the Lieber Code. It was published and handed out to Union soldiers beginning in 1863.
UNIDENTIFIED PERSON #2: Lieber Code, Article 23. Private citizens are no longer murdered, enslaved or carried off to distant parts.
ARABLOUEI: By the late 1800s, technological advancements were changing war. Cannons could shoot targets from farther distances. Trains were expanding battlefields and bringing war to people's doorsteps. Civilians needed to be protected. And as war became deadlier, many countries like the U.S. were increasingly seeking to use the law to create more rational, moral and civil societies.
ABDELFATAH: The Lieber Code met the needs of the times. It was the first modern, comprehensive legal framework about what was and wasn't acceptable in times of war. It was groundbreaking, but it had its limits.
ARABLOUEI: The codes themselves were subject to interpretation. Baked into the code was the ability to sidestep its guidelines entirely in the name of military necessity.
BRYANT: What that means is that if somebody puts their hands up, throws their weapons down and you take them captive as a prisoner of war, you then are not supposed to execute that person. But that principle, according to Lieber, was very much subject to military necessity. People are very surprised sometimes when they read the code and discover the lengths to which he was willing to go to enable commanders in the field to commit what we today would regard as war crimes.
ABDELFATAH: It's sort of the beginning of the real codification of some kind of legal language around war crimes but also the beginning of, who do you hold accountable, and what is the bar for calling something a war crime?
BRYANT: I think one of the reasons why Lieber was so insistent on military necessity was because of the unique situation that the United States was in at the time he wrote the Lieber Code. It was a civil war, and he was concerned that the Union might lose. Right? And if the Union loses, the Confederacy wins. It would have been a catastrophic development, obviously, from the Northern perspective. And Lieber was not willing to leave that to chance. He thought that preserving the country was the single most important thing that could be done.
ARABLOUEI: Even though the Lieber Code was made specifically to address the U.S. Civil War, it would go on to influence the rest of the world as more and more countries, particularly in Europe, sought to constrain the effects of war through law.
BRYANT: The reach of Lieber's thought is really quite vast. It would go on to influence all kinds of instruments by the late 19th and early 20th century, including the Hague Conventions, which was one of the major protections given to civilians during World Wars I and II.
ARABLOUEI: About 40 years after the Lieber Codes were published, dozens of countries, including the United States, Russia, the U.K. and Germany, came together for a series of peace conferences. Tensions were rising in Europe. World War I was on the horizon.
ABDELFATAH: People were nervous, so together, they came up with the Hague Conventions, a set of parameters for an international conduct of war.
UNIDENTIFIED PERSON #3: Hague Convention Article 3. The armed forces of the belligerent parties may consist of combatants and non-combatants. In case of capture by the enemy, both have a right to be treated as prisoners of war.
ABDELFATAH: Sound familiar? That's because the Hague Conventions drew heavily from the Lieber Code.
ARABLOUEI: But not everyone thought this was the path forward.
BRYANT: There was a lot of opposition from the great powers to having their freedom of action restrained in some way by international conventions. So, you know, the Germans at the Hague Convention were very bumptious. They objected to virtually every article that was proposed on the grounds that it would conflict with military necessity. And, of course, that's reflected then in German behavior during World War I. Mass shootings of civilians, mass shooting of hostages, the invasion of neutral countries, the deportation of thousands of people to forced labor - all of this was during World War I.
ARABLOUEI: And war crimes were barely tried in spite of the Hague Conventions.
BRYANT: It went nowhere after World War I.
ABDELFATAH: Coming up, war crimes go from lofty ideas to prosecutable crimes in the horrific aftermath of World War II.
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KELLY MOORING: Hi. This is Kelly Mooring from Somerset, N.J., and you're listening to THROUGHLINE on NPR.
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UNIDENTIFIED PERSON #4: In the Palace of Justice in Nuremberg, the people of the world came together, for there sat the International Military Tribunal to judge the chief Nazi war criminals.
RUDOLF HOSS: (Through interpreter) Treatment of prisoners was harsh, but any methodical physical abuse or maltreatment was out of the question.
ABDELFATAH: This is Rudolf Hoss, a former Auschwitz commander, testifying at Nuremberg.
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HOSS: (Through interpreter) The summer of 1941, the Fuhrer ordered the final solution of the Jewish question.
ABDELFATAH: The Nuremberg trials began in 1945, in order to hold Nazi leadership accountable for crimes against humanity, crimes against peace, and war crimes. It was the first trial of its kind.
UNIDENTIFIED PERSON #5: In all the centuries since Rome watched, the rulers of its vanquished foes dragged in chains behind the chariots of their conquerors, there has never been a more dramatic demonstration of the mutability of human fortunes than the trial of Nazi war criminals. The New York Times, November 21, 1945.
ABDELFATAH: The horrors of the Holocaust and the extreme loss of life during World War II fueled a newfound urgency to enforce the vision of the Hague Conventions. David Bosco says it paved the way for actually creating an international court system.
BOSCO: The Nuremberg trials really gave a lot of momentum to the idea of trying to investigate and prosecute crimes committed during warfare at the international level.
ABDELFATAH: It was a major turning point in the history of international law, but according to Michael Bryant, it almost didn't happen.
BRYANT: There was a major conference that is held in Moscow, where the Allies get together and determined that they're going to create a war crimes plan for dealing with these crimes after the war. It's called the Moscow Declaration. It's the earliest - really the earliest statement that we have of what the Allies are going to do. They say that we're going to take the lower-level people - once the war is over, we'll take the lower-level people and send them back to the countries in which they committed their crimes for trial by national courts in these countries, which is what they ultimately do in many cases. But when it comes to the major war criminals, we haven't made our minds up yet. We're going to issue a joint decision later on about what to do with them. What's clear is that certainly Churchill and to a certain extent even Franklin Roosevelt, were leaning towards summary execution.
ABDELFATAH: What changes their mind?
BRYANT: I think there are a lot of different factors that feed into it. Their secretary of war of the United States, Henry Stimson, really came forward and condemned the idea of just putting the Germans against the wall and shooting them. And he said that, you know, this is simply going to look bad. It looks like victor's justice. It just looks like pure revenge. What we need is a legal solution that looks fair and that is fair. And so he said, we really need to give the top ranking Nazis, who at that time included Hitler. He was still alive in 1944. So the plan was to put him on trial too. And to really give them their day in court, give them a chance to defend themselves. At least that was Stimson's thinking. And Truman really is the one who puts the United States on the path to supporting an international trial in particular, so that by June 1945, even Churchill has come around and he agrees to an international tribunal presided over then by the four victorious powers of World War II, the Americans, the British, the French and the Soviets.
ABDELFATAH: But in between that, the U.S. drops two atomic bombs on Japan. So I guess there's this sort of, like, hypocrisy starting to brew even at that stage where the U.S. and the Allied powers are sort of calling for justice, as you say, right? But it's like, justice for who?
BRYANT: Right. Of course, when we talk about Nuremberg, we are perforce talking about Germans, right? I mean, it's hard to get around that because the Germans were the ones who were put on trial. The Allies were not put on trial at Nuremberg, although the German defendants tried to suggest that if you're going to have a Nuremberg war crimes trial targeting the Germans, you should have a war crimes trial targeting the Americans or the British for bombing Hamburg, the bombing of civilians, so-called morale bombing, as it was called, to try to break the spirit of the civilian population. But let's face it, I mean, the Allies did attack civilians during the war. But there's a big difference between winners, the winners and the losers. And the winners typically do not put themselves on trial. They put the losers on trial. And assuredly the Nazis deserved to be prosecuted.
ABDELFATAH: It was an imperfect process. Not all war crimes were investigated. The victors defined the terms. But that didn't take away from the impact the Nuremberg trials had. Nazis were held personally accountable as individual actors. A measure of justice was met. Three of the 22 Nazi defendants were acquitted. Twelve were sentenced to death. And the efficacy of the tribunal demonstrated how an international court could help mitigate issues between countries.
ARABLOUEI: And the backdrop to all of this was the beginnings of the United Nations and the bombings of Hiroshima and Nagasaki in 1945.
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UNIDENTIFIED PERSON #6: That's the atomic bomb exploding at Nagasaki. Civilized people can only demand that such power be directed not towards their obliteration, but to the benefit of mankind.
ARABLOUEI: Widespread nuclear war was now a real possibility, which made the stakes of international conflict more deadly and catastrophic than ever before. So the need for some entity to enforce international treaties and conventions felt more and more necessary.
ABDELFATAH: And that's where the newly formed United Nations and the International Court of Justice, the ICJ, also known as the World Court, come in.
BRYANT: The ICJ is based on the idea that states are going to want to have a legal mechanism for resolving disputes between them, and so the majority of - the great majority of cases that the ICJ handles are one country versus another country about some international law question. But it's basically like a civil court in the sense that what's happening is one country is suing another, and there's not going to be anyone going to prison. It's not about putting people in jail. It's not even about individual culpability. It's about, did some state or another violate international law?
ARABLOUEI: Unlike the Nuremberg trials, which had held individuals responsible for war crimes, the ICJ allowed U.N. nations to hold one another accountable, and it was also a permanent court. The ICJ wasn't going anywhere.
ABDELFATAH: It was part of a larger effort to lay out international rules of war - rules that probably sound familiar, says Michael Bryant - things like the 1948 Genocide Convention, which promised to prevent and punish genocide in times of war and peace, as well as the 1949 Geneva Conventions.
BRYANT: Which really placed civilians at the very center of their concern.
ABDELFATAH: And what exactly do the Geneva Conventions say?
BRYANT: Yeah. Of course, they were - they're quite long and quite detailed. But in essence, they try to articulate standards for protected persons in particular. They try to rein in attacking civilians, killing civilians, committing sexual crimes on civilians, destroying public and private property. I mean, you're always going to have destruction of property in warfare. It's inevitable, right? This is - war is a violent affair. But it's that superfluous nature of warfare that the Conventions were concerned about.
ABDELFATAH: Superfluous meaning it results in an excessive, unnecessary loss of life.
BRYANT: And the world community has tried - oftentimes unsuccessfully, but nonetheless, there have been efforts to try to protect civilians since that time because of the tens of millions of civilians who lost their lives in World War II.
ABDELFATAH: I guess I have to wonder, you know, the Geneva Conventions that are being established, the Nuremberg trials - how would that have looked to people outside of this small circle of victors - you know, the U.S. and these European powers who had come out on top? How did the rest of the world see this?
BOSCO: One of the interesting historical facts about the Geneva Conventions is that, of course, they're finalized in 1949. And so now there are subsequent protocols and etc. But the bulk of the Geneva Conventions are put into place and negotiated before the wave of decolonization that takes place in the '50s, 1960s into the '70s. And so one of the criticisms and one of the tensions that has sometimes existed is, you know, from decolonized states who say, we didn't gain independence. We weren't really part of these international negotiations. We weren't part of the formation of this law, and that's problematic. So, you know, a good chunk of what we have really happened before the era of decolonization, and then it's been amended and tweaked as we've moved forward.
ABDELFATAH: So while there was an international will to create these systems, not everyone was at the planning table. And while that's been slowly changing over the past few decades, countries like the U.S., the U.K. and Russia still have an outsized influence, and it has real consequences.
ARABLOUEI: Take the ICJ case brought by Nicaragua against the United States in 1984 for funding rebels called Contras, who were attacking the Nicaraguan government. The ICJ ruled in favor of Nicaragua and asked the U.S. to pay reparations, but the U.S. refused to acknowledge the ruling. Undeterred, Nicaragua took it to the U.N. Security Council, but that, too, was a dead end.
BRYANT: I mean, you have this - five countries with an absolute veto power.
ARABLOUEI: The U.S., the Soviet Union - now Russia - Great Britain, France and China all have permanent seats on the U.N. Security Council as well as absolute veto power on enforcement of ICJ rulings. So in the Nicaragua case, the U.S. used its veto power.
BRYANT: They had the power to prevent U.N. initiatives from going forward.
ABDELFATAH: I mean, I think there's something here about sort of the aspiration versus the reality - right? - kind of hitting up against reality. How does it actually impact conflicts in the second part of the 20th century?
BOSCO: Yeah. I would say it's a pretty minimal impact in terms of - at least in terms of formal international processes, particularly in the context of the emerging Cold War, where it was pretty clear there was going to be at least the possibility of armed conflict. There was going to be civil uprisings. It was going to be - you know, the need from the Western perspective to kind of fight Soviet communism. And so at that point, it's really hard to say that international criminal law is making much impact in the post-World War II world, or if it's making an impact, it's through the influence of the Geneva Conventions, the kind of precedent of Nuremberg but not because of the expectation that anybody is going to be put on trial at an international level.
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ARABLOUEI: Coming up, at the turn of the 21st century, a new international court seeks to prosecute individuals, but not everyone is happy about it.
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NICK PENNING: Hi. This is Nick Penning (ph) in Arlington, Va. And you're listening to THROUGHLINE on NPR.
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ELVEDIN PASIC: We were instructed to form three lines and to lay down in this puddle of mud and water. I was laying down next - my dad was on my left-hand side, and my uncle was on my right-hand side. And as I was laying down, they ordered us to - all the women and children - to get up.
ABDELFATAH: This is Elvedin Pasic in 2012, recalling what happened to him and his family decades before in 1992 at the hands of Bosnian Serbs during the Bosnian War.
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PASIC: And at first, I didn't want to get up because I was afraid to separate from my dad. And he told me to get up. I told him, no. I don't want to go without you (crying). He says, get up. And my uncle insisted. He says, get up. You will survive.
ABDELFATAH: Elvedin got up and was separated from his father and uncle. He never saw his father again. Elvedin was one of the thousands of Bosniaks - Muslim Bosnians - that were caught up in the ethnic and religious violence that erupted after the dissolution of the former Yugoslavia, which pitted Bosnian Serbs, who were primarily Christian Orthodox, against Muslim Bosniaks.
ARABLOUEI: From the beginning of the conflict, reports of genocide...
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CHRISTIANE AMANPOUR: Here on these faces, these broken bodies, hard evidence of the previous day's Serb onslaught on Srebrenica.
ARABLOUEI: ...And sexual violence were widespread.
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AMANPOUR: The international community estimates that Serbs may have systematically raped as many as 20,000 Muslim women as a weapon of war.
BOSCO: There were some famous images that came out of the war in Bosnia of kind of emaciated prisoners behind barbed wire. There were - you know, there was ethnic cleansing. There was torture. So there were some very significant crimes.
ARABLOUEI: As the world watched in horror, David Bosco says there was a renewed effort to try to legally hold perpetrators of these acts responsible.
BOSCO: And so the U.S. - and this is during the Clinton administration mainly - really begins to push for there to be some kind of international judicial response to the crimes that were being witnessed in the Balkans. The U.S. approach was to really push for there to be an international tribunal that would address those crimes. And the U.S. led the push for this at the U.N. Security Council.
ABDELFATAH: With strong backing from the U.S. and other countries, the U.N. Security Council - the very same entity whose veto power could hobble the U.N.'s ICJ - established the International Criminal Tribunal for the former Yugoslavia in 1993. Madeleine Albright, who was at the time the U.S. ambassador to the U.N., provided full-hearted support for its creation.
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MADELEINE ALBRIGHT: The only victor that will prevail in this endeavor is the truth. Truth is the cornerstone of the rule of law, and it will point towards individuals, not peoples, as perpetrators of war crimes. And it is only the truth that can cleanse the ethnic and religious hatreds and begin the healing process.
ABDELFATAH: The spirit of the Nuremberg trials was back once again with the full support of the U.S. And while it stumbled in the beginning, the tribunal started to make some gains.
BOSCO: Countries that have peacekeeping forces in Bosnia start to become more willing to arrest people who are charged. The economic pressure of the European Union on the - on, you know, Serbia and other former Yugoslav countries starts to take hold. And it ends up being fairly close to a success story in terms of the number of people who are arrested and actually put on trial.
ABDELFATAH: The International Criminal Tribunal for the former Yugoslavia indicted 161 people over the course of 24 years. One of its final judgments was against the, quote, "butcher of Bosnia," or General Ratko Mladic. Elvedin Pasic, who lost his father and uncle, was the first witness to testify against him. In the end, Mladic was convicted for war crimes, crimes against humanity and genocide.
ARABLOUEI: In 1994, the International Criminal Tribunal for Rwanda was also created to prosecute crimes of genocide during the Rwandan Civil War. The idea behind these tribunals was that by ending impunity and holding individuals responsible, the atrocities might come to an end. And it was an idea that began to pick up speed.
BOSCO: And that's where the momentum for creating an international criminal court really starts to bubble up. And so it's in the early to mid-1990s that that pressure starts to get going, which is really a repeat of the push that there was to create a permanent Nuremberg tribunal right after World War II, which hadn't taken place.
ABDELFATAH: Which countries are calling for this permanent international court? Was the U.S. among them?
BOSCO: The U.S. was interested in the process, and it was, in theory at least, supportive of creating a permanent court. But it was going to be very careful about - it wanted to be very careful about what the rules were going to be and what the jurisdiction of the court would be. I would say the strongest pressure was there was a group of what - they called themselves the like-minded states. And this was, you know, a mix of largely European countries, some Latin American countries, then some countries - you know, a scattering of other countries around the world. But I would say Europe and Latin America were kind of the places where the support for the court was strongest. And so you start what's basically a treaty negotiation process to try to see if there can be agreement reached on what will become the template, then, for a permanent court. And that process really gets going in the summer of 1998. And during that process, the U.S. is becoming increasingly nervous about the direction of the negotiations because remember; the tribunal for the former Yugoslavia and the tribunal for Rwanda - those were created by the U.N. Security Council, where the U.S. has the veto power. And that made the U.S. very comfortable kind of championing international justice. If it's basically in the hands of the U.N. Security Council, that gives the U.S. a lot of comfort that the process is not going to be turned against it.
ARABLOUEI: The new permanent court, however, was not going to be created by the U.N. Security Council or be subject to its veto powers.
JOHN YDSTIE, BYLINE: The world's first permanent international war crimes tribunal is one step closer to reality today despite U.S. opposition.
ARABLOUEI: The international momentum continued to mount until the International Criminal Court, or ICC, was officially established in 2002.
ABDELFATAH: All right. The ICC, the ICJ - we know we're throwing a lot of different acronyms and courts at you. So let's take a second to clarify.
ARABLOUEI: The ICJ, or International Court of Justice, also known as the World Court, was created in 1945 and is a civil court. U.N. member nation states sue each other there for all sorts of international law violations, and any attempt at enforcement is subject to a veto by one of the five permanent members of the U.N. Security Council.
ABDELFATAH: The ICC, or International Criminal Court, on the other hand, is, as its name suggests, a criminal court, which means individuals, not nations, are tried. And guilty verdicts can result in prison sentences. The ICC specifically tries cases dealing with the gravest international concerns - war crimes, genocide, crimes against humanity and the crime of aggression. It has jurisdiction over all of the 124 member states.
ARABLOUEI: The U.S. is not one of them. And after 9/11 happened, the U.S. became outright hostile to the ICC.
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GEORGE W BUSH: The International Criminal Court is troubling to the United States. It's troubling to the administration, obviously troubling to the United States Senate as well.
BOSCO: From the U.S. perspective with the 9/11 attacks and then the invasion of Afghanistan and then ultimately, of course, the invasion of Iraq - and as the U.S. is engaging in this multifront kind of war on terror, as it calls it, it's using some techniques that it probably wouldn't have used before. You know, we're talking about, you know, as it's referred to, enhanced interrogation, pretty clearly torture in some cases. And the ICC is just coming into existence at that point. And so that puts the United States in the position of having to worry about an international court potentially looking over its shoulder as it's engaging in this multifront conflict.
And one of the ways in which that plays out in a kind of surprising way is that the new government of Afghanistan - the U.S.-supported government - actually joins the ICC. And that means that, according to the ICC's jurisdictional rules, the ICC can investigate potential crimes committed on the territory of Afghanistan, whoever they're committed by. And so that starts to raise the question, well, what if there's, you know, torture going on in some CIA site, for example, in Afghanistan? Could that - or what if there's, you know, an attack on civilians by U.S. forces? Could that be investigated by the ICC?
ARABLOUEI: The U.S. wasn't having it. In 2002, Congress passed the American Service-Members' Protection Act, or the Hague Invasion Act, as it was also known.
BOSCO: There's a lot of animosity to the ICC in Congress because it's seen as a potential threat to U.S. sovereignty. And so you get what's called the American Service-Members' Protection Act. And then it kind of famously includes this provision.
ARABLOUEI: Quote, "the president is authorized to use all means necessary and appropriate to bring about the release of any person described in subsection B who is being detained or imprisoned by, on behalf of or at the request of the International Criminal Court."
BOSCO: Which, you know, some people saw as essentially a threat to use armed force against the ICC if necessary.
ABDELFATAH: It feels like an incredibly important development in terms of the story of war crimes and trying - right? - the story in the 20th and 21st century is trying to essentially make war more humane. I mean, that feels like a fundamental threat to the whole project, the whole ideal that the ICC represents.
BOSCO: Yeah. It's a very - but it's a complicated story looking at it through the prism of the U.S. role because, on the one hand, without the U.S., there would have been no Nuremberg. There would have been no Yugoslav tribunal. There probably would have been no Rwanda tribunal. So the whole process of having international criminal justice at all is very much a U.S.-led story.
But then the U.S. has always had this deep aversion to being scrutinized itself. And so you see those - both the legalistic impulse of the United States, the desire to use international law and address atrocities through international law. You have that powerful instinct, but then you have the powerful, self-protective instinct of the U.S. and its desire to shield itself from international scrutiny. And those two are essentially kind of playing out against each other in really complicated ways. And it gets to the point where - for example, when the ICC issued an arrest warrant or brought charges against Russian President Vladimir Putin for activity in Ukraine, there was - you know, in many parts of the U.S., including leading voices on Capitol Hill, there was a lot of support for that. There was the feeling that this is something that needs to happen, and Putin is a war criminal, and he should be tried.
But then fast-forward, and we've got the situation in Gaza. And the ICC might ultimately be, you know, issuing arrest warrants for senior Israeli officials, and that, of course, leads to howls of outrage. And so I think in the U.S. political policy world, they're still trying to come to an understanding of what it means to actually have an independent, international judicial body and that it's not going to be just something you can kind of turn off and turn on and turn off whenever it suits your interest. It's going to be something that's out there and that you're going to have to deal with.
ABDELFATAH: All of this feels like it is deeply political in nature. And I wonder, then, how effective the court can be when these political realities exist and when you have the most powerful countries in the world attempting to, I guess, weaken the jurisdiction and the power of the court.
BOSCO: Yeah, or, at least if not weaken it, try to direct it in certain ways and kind of push it in a direction they want and away from things they don't want. I mean, one of the real challenges for the ICC is that in contrast to those tribunals set up for the former Yugoslavia and Rwanda, the ICC has a whole menu of different situations around the world that it might address. And this is a real difficulty for it - is that the ICC has limited resources. It needs to decide, what situations am I going to prioritize? Where am I going to put resources? Which situations are more severe than other situations? And those are really hard determinations. Just leaving alone the politics, they're just super-hard factual, ethical determinations.
And then you have to inject into it the whole political context, meaning that if the ICC really does go and investigate Palestine and if they decide that, you know, Israeli forces have committed some crimes and they decide to issue charges, that's going to create a huge backlash from the United States and from some other countries as well. If you go and investigate in Ukraine, Russia is obviously going to be very hostile. And Russia has already said that, you know, they don't recognize anything the ICC is doing in Ukraine. And that means that the best the ICC can do, really, is try to do its work legitimately, try to do its work as transparently as possible, try to make sure its investigations are well-conceived and well-documented. Even then, it's very clear that, among some - in some capitals, it's never going to be viewed as legitimate. I mean, there's no investigation of Russia that the Russian leadership is going to say is legitimate.
ARABLOUEI: To this day, the United States is still not a part of the ICC. Neither are China, India or Russia. Yet in spite of the pushback against it, the ICC continues to function. Since 2002, the ICC has heard 31 cases. Six of those cases have resulted in reparations or imprisonment. The scope of the court, however, has been narrow. All of the cases have focused on African nations.
ABDELFATAH: Begging the question, who is this court for?
BOSCO: I think the story of why the ICC started in Africa - almost exclusively in Africa - is, in part, there were several very serious conflicts there, with some very high death tolls and significant atrocities. So part of what was happening is that the ICC was seeking environments where governments wanted them to be there and thought they could play a useful role. But I do think there's another element, which is there is for sure a geopolitical element. This court, just starting off, wanted to investigate in places that weren't going to immediately put it in a fight with the United States or a fight with Russia or fight with China, etc. I think there's no doubt that was an element as well in the first decade or so of the court's existence, that it was pretty cautious about the investigations that it wanted to initiate. And it wanted to try to do so in a politically sensitive way.
ABDELFATAH: But David Bosco says that's beginning to change.
BOSCO: And that is important to recognize - that by the time we get to 2013, 2015, you know, the ICC is looking at the situation in Georgia, which involves Russia. It started to look seriously at the situation in Afghanistan. It's looking at the Philippines. It's looking at a variety of different places. And right now, obviously, you have a Gaza investigation going on. So it's clear that we're in a different phase of the court's existence where it is more willing, I would say, to take on investigations that might entangle it with powerful countries.
ARABLOUEI: But looking back, the results have been uneven. Superpowers can skirt accountability. War crimes are still happening. So has the effort to put war into a legal container and to create laws and international courts like the ICJ and ICC been worth it? Is it still worth it?
BRYANT: Yeah, I think so. But what's the alternative?
BOSCO: It's very easy to kind of throw your hands up and say, well, there's all this hypocrisy. There are all these double standards. It's - look at all these ways in which it doesn't work. And that's true. We have to give ourselves a little space to recognize that you're not going to set up these institutions to regulate something as difficult as regulating war, which goes to, like, the core interests of states and, like, their most - you know, their deepest interests. But I guess ultimately, I see us as being on this kind of long, slow march toward having international law have more meaning. And it's going to be, you know, ugly, and there are going to be a lot of setbacks along the way.
BRYANT: Principles of power, power politics will always bedevil that effort to hold political leaders and military leaders accountable. But think of the amount of progress that's been made just in the past hundred years. The term genocide did not even exist a hundred years ago. The ICC didn't exist. There was no such thing as the Nuremberg war crimes trials or any of its successor institutions. So my feeling is that the future is going to belong to legality and to human rights and holding countries accountable for what they do, both in wartime and also in peacetime.
ABDELFATAH: That future with international institutions that defend human rights and hold countries accountable, perhaps making war itself more humane, is being shaped as we speak. Here's how Karim Khan, the ICC prosecutor who has applied for arrest warrants against Hamas and Israeli leaders, ended his announcement to the world.
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KARIM KHAN: It's my strong conviction that if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its complete collapse. And in doing so, we would be loosening the remaining bonds that hold us together, the stabilizing connections between all communities, all individuals, the safety net to which all victims look to in times of suffering. This is the true risk we face at this perilous moment. Now more than ever, we must collectively demonstrate that international humanitarian law, the foundational baseline for human conduct during conflict, applies to all individuals and applies equally across situations addressed by my office and by the court. This is how we will prove tangibly, in real terms for all victims, that the lives of all human beings, wherever they may be, have equal value.
(SOUNDBITE OF MUSIC)
ABDELFATAH: That's it for this week's show. I'm Rund Abdelfatah.
ARABLOUEI: I'm Ramtin Arablouei. And you've been listening to THROUGHLINE from NPR.
ABDELFATAH: This episode was produced by me.
ARABLOUEI: And me and...
LAWRENCE WU, BYLINE: Lawrence Wu.
JULIE CAINE, BYLINE: Julie Caine.
ANYA STEINBERG, BYLINE: Anya Steinberg.
CASEY MINER, BYLINE: Casey Miner.
CRISTINA KIM, BYLINE: Cristina Kim.
DEVIN KATAYAMA, BYLINE: Devin Katayama.
NIC NEVES, BYLINE: Nic Neves.
IRENE NOGUCHI, BYLINE: Irene Noguchi.
ARABLOUEI: Fact-checking for this episode was done by Kevin Volkl.
ABDELFATAH: This episode was mixed by Gilly Moon.
ARABLOUEI: Thanks to Johannes Doerge, Nick Spicer, Tony Cavin, Edith Chapin and Collin Campbell. And special thank you to Lawrence Wu, Nic Neves, Anya Steinberg and Johannes Doerge for their voiceover work.
ABDELFATAH: Music for this episode was composed by Ramtin and his band Drop Electric, which includes...
NAVID MARVI: Navid Marvi.
SHO FUJIWARA: Sho Fujiwara.
ANYA MIZANI: Anya Mizani.
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