Things fall apart: Battles of legitimation and the politics of noncompliance and African sovereignty from the Rwanda tribunal to the ICC

The last quarter-century has seen global criminal accountability shift from abstract ideal to institutional reality. Beginning in the early 1990s, the establishment of the United Nations International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) sowed the seeds for a new global order of international, hybrid, and domestic criminal courts. The subsequent establishment of hybrid tribunals in Sierra Leone, East Timor, and Cambodia; the running of domestic war crimes trials in the Balkans and beyond; the use of universal jurisdiction; and the emergence of the International Criminal Court (ICC) have led many observers to declare that the global post-Cold War accountability revolution is here to stay. The emergence of these international and domestic judicial institutions has not rendered impunity a relic of history. The current global system of criminal accountability is less a system than a patchwork, where some countries and conflicts fall within the jurisdiction of international tribunals and others lie beyond their reach. In the latter situation, there may be little political incentive for states and their domestic judiciaries to fill the impunity gap, especially when it comes to prosecuting suspects linked to state-sponsored crimes. Today, therefore, numerous armed conflicts receive little or no judicial scrutiny when international tribunals lack jurisdiction and domestic legal systems prove unable or unwilling to undertake trials. Moreover, even where jurisdiction is granted to an international tribunal, accountability is by no means assured, given the reality of limited resources and the sheer number of suspects implicated in widespread atrocities. But where jurisdiction is granted to an international tribunal, the shadow of law signals a reasonable chance of political and military officials implicated in violations of international humanitarian law facing criminal scrutiny (Meron 2014). If human rights is the lingua franca of our age, then criminal accountability is one of the most resonant phrases in this new global vocabulary. But the forceful emergence of the accountability norm - which Kathryn Sikkink evocatively calls ‘the justice cascade’- does not mean that water only flows downhill for the global movement for criminal justice. As Sikkink herself acknowledges, ‘the immunity/impunity model’ exists alongside the waters of the justice cascade (Sikkink 2011: 256). To elaborate upon her metaphor, the downward flow of the justice cascade is often met by an uphill undercurrent of equal or greater force that can stop, delay, or divert the course of justice.