I. INTRODUCTION
During the 1990s the international community took unprecedented steps to limit the impunity all too often associated with genocide, mass slaughter, forced dislocation of ethnic groups and rape as a weapon of war. Along with two genocides and many other widespread crimes, the decade was marked by the creation of international criminal justice mechanisms and the application by national courts of universal jurisdiction laws to hold perpetrators of the most serious crimes to account. Due to the inherent difficulties in rendering justice for these crimes, these efforts which represented a qualitative step forward have also had failings. In the last few years, opposition to this nascent “system” of international justice has intensified and today the landscape is less hospitable to further advances.

In this context, those looking to prevent genocide, crimes against humanity and war crimes need to take a hard look at recent experiences to chart the path forward in using judicial means to prevent and punish these crimes in the twenty-first century.
I will pose a few key questions and formulate essential recommendations in this paper.

II. ASSESSING THE CURRENT SITUATION
A. Lessons Learned
What are the lessons – positive and negative – to learn form the experience of international justice mechanisms in punishing genocide? The creation and work of the ad hoc tribunals for the Former Yugoslavia and Rwanda marked a sea-change in attitude and approach. Affirming the viability of international criminal mechanisms after a 50-year hiatus, the tribunals held perpetrators of crimes in the ex-Yugoslavia and Rwanda accountable. Suspects were arrested and tried before these tribunals regardless of their official status, leading to the first indictment of a sitting head of state, namely Slobodan Milosevic by the ICTY, as well as the indictment of the former Prime Minister of Rwanda, Jean Kambanda, by the ICTR. The Rwandan and Yugoslav tribunals revived jurisprudence for crimes that had not been prosecuted by international for a since the Nuremberg and Tokyo trials.

But these courts have had shortcomings. The limitations of these “courts of last resort” are magnified by the difficulties of their tasks. Grasping the combination of the inherent institutional limitations and the objective difficulties to international justice is crucial in evaluating the performance of these tribunals as a means to prevent and punish genocide.

1) Prosecuting senior officials for serious human rights crimes where there are a large number of victims is a complex and expensive process regardless of whether the cases are tried before national or international courts. These prosecutions tend to involve massive amounts of evidence. Ensuring the fairness of these trials often results in slow progress so that the accused is able to fully exercise his or her rights.

2) International criminal tribunals face their own unique institutional challenges. Bringing together judges, prosecutors, and other court personnel from different backgrounds and legal cultures creates obstacles to efficient trials.

3) Many of the trials at the ad hoc tribunals for the former Yugoslavia and Rwanda have had a limited effect on victims and those in whose name the crimes were committed. This has resulted in part from the location of the tribunals - removed from where the atrocities occurred. However, the outreach of the tribunals has not been sufficient or effective enough. The limited outreach effort is all the more stark in light of a decisive objective reality: the active hostility of some governments most relevant to the tribunals’ work. Major indicted war criminals of both tribunals remain at-large, due to a failure of cooperation and assistance by the states where they are located and other states with the capacity to arrest them.

4) In establishing the Yugoslav and Rwandan tribunals, there were specific challenges that resulted from their sui generis nature. The ad hoc tribunals for the Former Yugoslavia and Rwanda, as entirely new entities had only the Nuremberg and Tokyo tribunals as an institutional precedent.

5) Objective institutional problems have been further aggravated by a tendency to misunderstand the immediate impact of the Nuremberg trials. The short-term effect of the Nuremberg trials has, unfortunately, been magnified over the years. At the time the trials were conducted, they were enormously controversial among the German population. While illuminating to the international audience, the German people initially dismissed the proceedings as political show trials The reckoning only occurred decades later when a new generation began to ask questions about individual responsibility during the Third Reich. By then, the trial record provided an invaluable and incontrovertible reference point of past crimes.

These limitations must be understood and we must calibrate our strategy and expectations to bring them in accordance with the reality of prosecuting genocide.

B. The Changing Political Landscape
The second question to answer flows from the virulent opposition of the U.S. Government to international justice mechanisms. By 2001, the movement to enhance international justice began to encounter stronger political opposition. Electoral changes on both sides of the Atlantic brought in political leadership that was less supportive of these courts. The Bush administration’s unilateralist policies, hostile to multilateral institutions generally, took special aim at the International Criminal Court. The election of several new governments in Europe reduced the willingness of the European Union to stand up to such hostility. The attacks of September 11, 2001, further contributed to a shift away from support for international justice, with efforts to combat terrorism taking precedence over international law.

In May 2002, the Bush administration launched a worldwide campaign to undermine and marginalize the International Criminal Court. After repudiating the U.S. signature of the Rome Statute, the Bush administration threatened to veto all United Nations peacekeeping operations unless it obtained a Security Council resolution exempting citizens of non-ICC states parties involved in U.N. operations from the Rome Statute. The Bush administration also played hardball to pressure select ICC state parties to sign bilateral immunity agreements exempting U.S. citizens – and foreign nationals working under contract with the U.S. government – from ICC jurisdiction.

Washington’s efforts to undermine the ICC was linked to a growing trend to interfere with the independence of the two ad hoc tribunals. This hostility coincided with a rising level of disenchantment among some other powerful Security Council members towards the ad hoc tribunals, due to their cost and slow-moving procedures. Security Council members increasingly came to view the tribunals as relics of an earlier era that had outlived their utility while continuing to absorb large sums. This was manifested in pressure for them to adopt a “completion strategy” with a 2010 deadline regardless of whether this date allowed them to fulfill their mandates.

In the face of this relentless hostility from the world’s superpower, its worldwide campaign against the ICC, and diminishing support for the ad hoc tribunals can the ICC be effective? My answer is a resounding “yes” qualified by a big “if.” The answer will depend on how seriously ICC state parties take this court and its importance. States parties need to strengthen and defend the integrity of the ICC Statute. They should find ways to diffuse attacks on the court by the Bush administration, and continue to provide additional financial and diplomatic support for the court. The European Union and leading EU Member States have a critical leadership role to play. This is true at the Security Council and in certain capitals around the world where US diplomats are pressing their ideologically- motivate opposition to the Court.

III. RECOMMENDATIONS:
Taking Strategic Steps Forward
The backlash against the international justice “system,” while dismaying, is hardly surprising given its profound effect on the prerogatives of state officials. The challenge is to work most effectively in a more difficult international environment to limit impunity for the crime of genocide while many national courts remain unable and unwilling to do so. I will set out what I believe are two objectives to accomplish this.

A. Maximizing the Catalytic Role of The International Criminal Court
First, states must make a maximum effort to assist the ICC realizes its full potential. The ICC has a tough road ahead and there will be shortcomings. As I stressed above it is crucial that states parties strengthen and defend the integrity of the ICC Statute and diffuse attacks on the court by the Bush administration.

Second, the international community must work to use the ICC’s operations to forge a synergy between the ICC’s efforts and prosecutions for serious human rights crimes by national courts. In light of the constraints on the Court, strengthening weak, but willing, national courts is all the more important. The ICC will only be able to handle a small percentage of the highest-level alleged perpetrators. Cases of mid-level perpetrators and cases where there are numerous perpetrators bearing significant responsibility, as in many post-conflict situations, will not be fully addressed by the ICC.

The strengths and weakness of national judiciaries to prosecute serious human rights crimes will require assessment and assistance. The international community will have to take steps to enhance national court capacity to try cases involving the most serious crimes. This effort will maximize the ICC’s catalytic effect on international support for fair and effective prosecutions at the national level.

Even if the ICC achieves its full potential, it will, of course, not be able to address all situations in which national courts are unwilling or unable to prosecute perpetrators of genocide. There are temporal jurisdictional limitations on cases that can come before the ICC. The ICC’s jurisdiction is also restricted to cases where the state where the crimes occurred is a party to the Rome Statute, the state of the nationality of the accused is a party to the Rome Statute, or the Security Council refers the situation.

Hybrid mechanisms and judicious use of universal jurisdiction by national courts will be essential to fill the “impunity gaps” when the ICC is unable to take on cases. The international community should apply the lessons learned from existing ad hoc tribunals and hybrid mechanisms to develop new models that are able to bring justice more fairly, effectively, and efficiently.

B. The Need For an Enhanced United Nations Role
The United Nations must play a more central and systematic role in post-conflict situations. The United Nations has often been pivotal in forging the international response to situations where serious human rights crimes have been committed. Over the last decade, the Security Council, the Secretary-General, and the General Assembly have convened several Commissions of Experts to assess evidence of serious human rights crimes and recommend appropriate mechanisms. Such commissions were created for the former Yugoslavia, Rwanda, East Timor, and Cambodia. The United Nations should avoid reinventing the wheel each time it addresses a new situation in which accountability is sought for serious human rights crimes.

The United Nations Secretariat should undertake an analysis of the work of previous Commissions of Experts so the knowledge can be made available for any future post-conflict situations. The Commission of Experts modality should become a regular part of the Security Council’s response to post-conflict situations.

IV. Conclusion
The development of a “system” of international justice to limit impunity for genocide and the other most serious human rights crimes struck at outmoded notions of national sovereignty and the absolute prerogative of states. It would have been unrealistic to expect that progress would occur in a straight line. However, even in the face of backlash and indefensible government policies, the achievements must be built on to make these courts an effective feature so that perpetrators are increasingly held accountable.