Ruth Wedgwood is Edward B. Burling Professor of International Law and Diplomacy; and Director of the International Law and Organizations Program at the Paul H. Nitze School of Advanced International Studies, John Hopkins University, Washington DC. She is also a  visiting fellow at the Hoover Institution. Previously, she served as a federal prosecutor in the Southern District of New York, and designed the redaction procedures that became the Classified Information Procedures Act

A striking consensus is emerging in Washington for a closer relationship with the International Criminal Court. Even some staunch conservatives have backed the idea of lending logistical, political, and diplomatic assistance to the ICC on a case-by-case basis – to act against the most shocking outrages of genocide, crimes against humanity, and systematic war crimes.

Yet, with notoriously bad timing, the path to this cooperation may be washed away, due to a troublesome and unnecessary fight brewing at a sister criminal tribunal in The Hague.

The fracas has arisen at the ad hoc United Nations war crimes court tasked since 1993 to try cases from the bloody ethnic war in the former Yugoslavia. This is a high-performing tribunal that has enjoyed strong leadership from its American judges and other admired jurists. The court is currently focused on the prosecution of Bosnian Serb leader Radovan Karadzic and has an indictment and arrest warrant waiting for fugitive Bosnian Serb general Ratko Mladic.

But this exemplary war crimes court also has a mess on its hands, partly of its own creation. The outcome will hold an important lesson for the transparency that any international criminal court should maintain, even amidst the difficulties of dealing with sovereign states. To be acceptable to democratic states and publics, an international court should make available the logic and effect of its rulings. There can be no secret jurisprudence, unavailable to debate and critique by an audience of lawyers, political leaders, and citizens.

Yet, in a summary proceeding now underway at the tribunal, three judges hailing from China, Turkey, and South Africa are threatening to send a French journalist to jail on a charge of criminal contempt for revealing the bare-bones logic of two appellate opinions. No witness has been endangered. No sealed arrest warrant was thwarted. And the criminal case to which the decisions pertained was ended by the fatal heart attack of former Yugoslav strongman Slobodan Milosevic in his jail cell in The Hague in March 2005. (more…)