Milosevic and International Jurisprudence

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The sensational war crimes trial of Slobodan Milosevic at the Hague has once again focused the world’s attention on international jurisprudence. As the spectacular fireworks of his opening statement dissipate, a sober assessment is being made of the current legal instruments, their strengths and weaknesses, and the impact of global politics on the process.

This International Criminal Tribunal (ICT), which is trying war crimes perpetrated in the former Yugoslavia, is a temporary ad hoc tribunal that has jurisdiction only over the territories that formed part of this country. Its counterpart is the ICT for Rwanda (set up in 1994) to try perpetrators of the genocide. Since these are ad hoc tribunals, “the process of setting up individual courts is too slow and cumbersome for justice to be done in all places that the world needs it,” hence the need for a permanent court. These tribunals are obviously completely different to the International Court of Justice (World Court) which is a civil court hearing disputes between countries.

The attitude of the US toward the ICT elucidates its selective vision of international justice. It supports whole-heartedly ad hoc tribunals that apply to other countries, but has vigorously opposed any international legal system that could pull US nationals into the net. A prime example is its robust objection to the suggestion by the prosecutor of the Yugoslav ICT of an investigation into NATO’s conduct during the 1999 bombardment. The tribunal had jurisdiction over Yugoslav nationals and foreign forces committing war crimes in its territory. There was no doubt that “the prosecutor’s scrutiny of the NATO air campaign was entirely appropriate,” since 250 of the civilian deaths were attributable to probable NATO violations of international humanitarian law. Carla de Ponte, the formidable Swiss prosecutor, was forced to cancel the investigation, leading one to speculate as to the kind of pressure that was brought to bear by NATO on such a fiercely independent prosecutor. But even then Washington still considered it outrageous that she could even contemplate subjecting NATO to the same standards as other forces!

As opposed to the ICTs, the International Criminal Court (ICC) will be a permanent international tribunal, also based in the Hague, which will prosecute individuals accused of the most heinous war crimes, crimes against humanity, and genocide. It will have jurisdiction only over crimes committed by nationals of governments that ratify (agree to be bound by) the treaty, regardless of the person’s civilian, military or official status. This jurisdiction will be complementary to national jurisdictions, giving national states the primary responsibility and duty to prosecute these crimes (called the ‘principle of complementarity’). The ICC will “intervene only as a last resort if the state fails to discharge its duty.” It will also provide incentives and guidance for countries which are unwilling or unable to effect prosecutions. Member countries will be compelled to accept the Court’s jurisdiction and cooperate in investigating and prosecuting crimes, and enforcing penalties. There will be many safeguards to exclude frivolous and politically motivated cases, including confirmation of indictments by a Pre-Trial Chamber of judges. Prosecutors and judges will undergo rigorous scrutiny, and only “experts whose reputation, moral character and independence are above reproach” will be appointed to the Court. They will be prohibited from any activity that might jeopardize their independence and can be impeached if they abuse their powers.

In 1998 the UN-sponsored ‘Rome Conference’, which was attended by 160 countries, adopted a statute (called the Rome Statute) creating the ICC.  The Statute is a comprehensive document of 128 articles that guarantees the right to a fair trial; excludes the death penalty; can award reparations to victims; etc. It was adopted by 120 countries and 7 voted against it (including Libya, Iraq, China and the US). This is a telling indictment against the US which has chosen to align itself with countries it has labelled as “rogue states”. It is merely the culmination of a long history of US obstructionism. The court can be established only when 60 countries have ratified the treaty. Thus far 52 have ratified, but it is anticipated that the process should be completed by mid-2002. Countries which fail to ratify the treaty will be prohibited from participating in the nomination of the Court’s judges and prosecutor, and contributing to budgetary and administrative decisions.

An extremely serious and ominous development was the bill introduced by Senator Jesse Helms: the American Servicemembers Protection Act (ASPA), which would prohibit any US cooperation with the ICC and would empower the President to use “all means necessary and appropriate”(including invasion of a country) to free any Americans detained by the ICC for alleged war crimes, crimes against humanity, or genocide. This has been dubbed ‘The Hague Invasion Act’, and is an unabashed admission that the US is an international criminal for even considering such legislation. The US would also punish any country that ratifies the Rome Statute (except for NATO and a few other important allies of the US). It would take these draconian steps despite the extensive safeguards against unjustified prosecutions of its citizens, and has been using its enormous muscle to undermine the authority, legitimacy and effectiveness of the Court.  The Hyde Amendment is “a weaker yet likewise prohibitive piece of legislation intended to undermine U.S. cooperation with the future ICC.” It is expected that Helms will return with further dangerous amendments. Fortunately, all of America’s NATO allies strongly support the ICC and most have ratified the ICC treaty already. It is hoped that they will bring moral and other pressure to bear on this recalcitrant superpower.

Embarking on a much more subtle philosophical analysis of international criminal law, John Laughland asserts that the Hague tribunal “does not embody the legal principles established and consolidated at Nuremberg …. [but] instead their complete destruction.” He enthuses about the towering jurisprudence of the Nuremberg tribunal where the “primordial war crime was to start war in the first place …. [and] all other war crimes flow from this.” The most effective way to preserve peace was to “raise the profile of the concept of state sovereignty.” This was crucial because of the Nazi theory that state sovereignty was a “bogus invention of materialistic liberalism,” and that great powers should have the legal right to interfere in the internal affairs of smaller nations in their sphere of influence. The greatness of the Nuremberg jurisprudence, therefore, was the pre-eminence afforded the concept of “crimes against peace.”

And this is precisely the weakness of the Hague tribunal. When the prosecutor tragically refused to open an investigation into NATO’s war crimes in Yugoslavia, the rationale was that the tribunal “does not have jurisdiction over crimes against peace.” This unquestionably tarnished the legitimacy of the tribunal, since it is obvious that the NATO onslaught on Yugoslavia was illegal under the post-war UN-based system and had not been approved by the Security Council. It is also an unfortunate retrogressive step for international law.

Notwithstanding all its undoubted strengths, the future ICC is compromising itself by postponing indefinitely any attempt to define “crimes against peace”. But in an imperfect world held to ransom by powerful vested interests, the current compromise is probably best that can be hoped for. This means that the Milosevic-type monsters in the NATO establishment will, for the foreseeable future, continue to commit war crimes and crimes against humanity with impunity. The only difference is that now the world will be able to see through the subterfuges with greater ease and the condemnations will be backed up by legal force.

The jury is still out on the status of international criminal jurisprudence.

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