The Trump administration’s sanctions against officials of the International Criminal Court have triggered an outpouring of concern: European governments and human-rights organizations warn that the international justice institutions painstakingly constructed over three decades are being weakened. They’re right. But the problem is not Trump.
International justice spent years eroding the credibility and legitimacy on which its authority ultimately depends. The consequences will be on display Sept. 16, when judges in The Hague are scheduled to deliver a first-instance judgment in the case of Hashim Thaçi, ex-president of Kosovo. By then, he will have spent nearly six years in detention without a verdict.
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Americans have a particular reason to pay attention. Thaçi’s path to The Hague runs directly through Washington — and through Jack Smith, the prosecutor who would later become one of the most consequential figures in American politics.
In June 2020, Smith, then the specialist prosecutor in The Hague, publicly announced an indictment against Thaçi before a judge had even confirmed it. The timing was extraordinary. Thaçi was preparing to attend a White House summit with Serbia organized by the first Trump administration. Thaçi canceled his trip. The summit collapsed. The peace efforts have stalled ever since.
A prosecutor had, intentionally or not, derailed a major American diplomatic initiative before a judge had even confirmed his indictment. That is no small footnote. And I do not write this as an opponent of international justice — quite the opposite. I come from Kosovo, where we desperately needed it.
In the 1990s, international justice achieved something close to moral authority. The tribunals for the former Yugoslavia and Rwanda may have been slow and imperfect, but they established a revolutionary principle: Presidents, generals, and architects of mass murder could be held personally accountable.
The Yugoslavia tribunal established an extraordinary factual record against the denial of the crimes committed by Slobodan Milosevic’s forces in Kosovo, Bosnia, and Croatia. It showed that the wars were not eruptions of some mysterious “ancient hatreds,” but the results of identifiable institutions, policies, and people.
I therefore know what international justice can accomplish when it has credibility. That is why its loss of credibility should concern us.
I realize, of course, that international justice has its detractors on principle. The United States has long been wary of surrendering sovereignty to international courts, and Trump and many of his supporters have made that objection particularly explicit. Why should Americans — or citizens of any democracy — accept the authority of judges and prosecutors who are not accountable to them?
That is a legitimate position. Asking a country to accept the judgment of a court it does not control is an extraordinary demand.
I nevertheless believe there are crimes so vast, political systems so compromised, and conflicts so poisoned by competing versions of history that domestic justice alone may be incapable of establishing accountability. The Yugoslavia tribunal demonstrated what international justice could contribute: Individual responsibility, a credible factual record, and some barrier against the political rewriting of mass atrocities.
But that bargain places an extraordinary burden on international courts themselves. The more sovereignty they ask nations to surrender, the more legitimacy they must earn.
They must be more scrupulous about impartiality, due process, and political independence, not less. They cannot afford selective justice. They cannot casually become actors in political disputes. And they cannot answer legitimate questions about procedure merely by pointing to their own statutes and insisting that legality settles the matter.
International justice was always asking the world for an enormous amount of trust. Its great mistake was behaving as though that trust were inexhaustible. The result, says Sir Geoffrey Nice, Milosevic’s prosecutor at The Hague, is that “the international courts and tribunals of the 1990s and beyond increasingly appear as aberrations in historical terms.”
Kosovo is hardly the only place where the promise of the 1990s has faded.
The Special Tribunal for Lebanon spent more than a decade and over $1 billion prosecuting the assassination of former prime minister Rafik Hariri, yet closed without establishing who ordered the murder. In Cambodia, important Khmer Rouge convictions were dogged by allegations of political interference that prompted international judges to resign.
As for Thaçi, he’s been detained in The Hague since November 2020; his trial did not begin until April 2023. At some point, “complexity” stops being an acceptable explanation, and the dubious aspects of a case start piling up.
The Kosovo Specialist Chambers grew out of a Council of Europe investigation whose most sensational allegation was that KLA members had removed organs from prisoners in Albania. Organ harvesting is not among the charges Thaçi now faces.
This year, the Bar Human Rights Committee of England and Wales — hardly a KLA advocacy group — published an independent preliminary review of the court. Its findings make for difficult reading. The human-rights lawyers raised concerns involving detention, judicial accountability, evidence originating with Serbian authorities, and equality of arms. They warned that expansive judicial questioning, without adequate safeguards, could allow a panel to function “in effect, as a second prosecutor.”
There are other legitimate questions about the prosecution’s case as well. Thaçi’s defense also called former NATO commander Wesley Clark, former U.S. envoy Christopher Hill, and former State Department spokesman Jamie Rubin, whose testimony challenged the prosecution’s depiction of a disciplined KLA hierarchy controlled from the top.
The judges will decide what that evidence means, and nothing here prejudges their verdict. But neither can the eventual verdict retrospectively settle fundamental questions about the legitimacy and the transparency of the process that produced it.
Legality alone is not legitimacy. International courts possess no electorate, territory, or sovereign authority of their own. Their power depends on governments and societies believing they are impartial and procedurally fair.
The cumulative damage now threatens the entire project. For those of us who believe international justice can serve a valuable purpose – especially here in Kosovo — that’s particularly painful. We know what international justice can accomplish because we watched it establish an authoritative record against denial when we desperately needed it.
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The authority did not come from armies, elections, or sovereign power. It came from credibility. And because international courts ask sovereign nations to accept judgments from institutions they do not control, credibility is the whole game. That credibility took decades to build and years to squander.
On Sept. 16, Hashim Thaçi will finally receive a judgment after nearly six years in detention. Whatever that judgment says about him, the history of his case has already delivered a judgment of its own. International justice cannot survive on the self-proclaimed righteousness of its mission alone. It must earn back the credibility its institutions have squandered.
Petrit Selimi is a former foreign minister of the Republic of Kosovo and a research fellow at the USC Center on Public Diplomacy.
