War crimes and int'l justice

LAST TUESDAY, Slobodan Milosevic, the former president of Yugoslavia, stood before an international tribunal to face charges of crimes against humanity. To date, the charges brought against Milosevic pertain exclusively to alleged crimes against humanity committed by Yugoslav forces in Kosovo: the 54-page indictment includes allegations blaming Milosevic for the forced deportation of over 700,000 Kosovo Albanians, and the killing of more than 600 in cold blood.

In response, Milosevic has been defiant. At last week's arraignment, he poured scorn on the international tribunal, saying, "I consider this tribunal false tribunal and indictments false indictments", and further characterising the tribunal as an "illegal organ". Milosevic also refused legal counsel for the arraignment to underline his view that the proceedings are illegitimate. For him, this is simply a case of victor's justice, designed essentially to provide justification for NATO's illegal bombing of Serbia and Kosovo in 1999. But is it?

The proceedings against Milosevic bring into stark contrast at least two competing views of world order and international politics. On the one hand, supporters of the Milosevic perspective tend to place highest priority on issues of sovereignty and national self-determination. On this view, whatever may have happened in Yugoslavia - and horrible though the events there may have been - the problem was fundamentally Yugoslavian. From this conceptual foundation, it is then argued that Milosevic's activities should be left to the judgement of the Yugoslavian people: if international tribunals place themselves in a position to judge events that fall properly within the domestic sphere of particular countries, this will ultimately lead to disorder in international relations.

Those who take this line also note that outsiders often do not have the knowledge, cultural sensitivity and balance to make sensible judgements concerning crises in particular countries. Yugoslavia was at war with itself, how, then, can an Englishman, a Jamaican, a Swiss woman, some Americans and others, fully appreciate the exigencies of that war, far removed from the mutual brutality, and long after the sectarian passions have subsided? On a related point, supporters of Milosevic's perspective may also argue that the conduct of legal proceedings following a war is likely to be unfair to the losers of that war.

War, by definition, connotes the negation of law. Standards of behaviour applicable in tranquil times are suspended when armed conflict erupts: inter arma silent leges (amidst the clash of arms the law is silent).

This perspective ignores important developments in humanitarian law from the last century, but it still retains a germ of truth; and on that basis, some may argue that legal proceedings against Milosevic ignore the realities of wartime decision-making.

The second basic political perspective on the Milosevic trial rejects the sovereignty, self-determination position. It starts with the proposition that the today's world attaches greater significance to human rights and the dignity of the person than it does to Westphalian conceptions concerning the paramountcy of the State. The human rights position would then support Milosevic's trial on the basis that murderers should not be able to hide behind the cloak of sovereignty: the basic question is whether Milosevic is guilty of the horrendous charges, not whether the State of Yugoslavia would somehow be offended if Milosevic is found guilty of murder.

Admittedly, however, to retain this position human rights supporters need to overcome a number of legal and practical hurdles. As to legal questions, one issue is whether International Law now accepts that courts may have universal jurisdiction with respect to some categories of human misconduct, such as crimes against humanity, genocide, and violations of the laws of war. This remains a vexed question not least because of its political connotations. Noriega of Panama (still in an American gaol), Pinochet of Chile (still fighting in the Chilean courts), Kambanda of Rwanda (imprisoned for life for genocide in Rwanda) have all encountered legal proceedings based on the assumption that foreign courts may hear charges for acts committed by national leaders in their home territories.

Given that even the most brutal dictators will have some support at home, reliance on universal jurisdiction by a foreign court is likely to stir political controversy.

Not only that, in some instances, the national courts will have mixed motives, or may apply the law in a biased way. The horrendous Nazi war criminals were reasonably tried and convicted at Nuremberg, but, other cases are less clear-cut. Should Fujimori be held by a foreign jurisdiction with respect to allegations about crimes in Peru? Did Bill Clinton commit a crime against humanity when he ordered airstrikes against Yugoslavia in 1999? Or again, has Castro committed crimes against humanity in Cuba at any stage since 1959? Were the Reagan-authorised airstrikes on Libya, that resulted in the death of Gaddafi's step-daughter, a crime against humanity? Yeltsin, in Chechnya?

One's political perspective will no doubt be a factor in determining the answer to these questions, and, given that fact, the law should be keen to apply the concept of universal jurisdiction only in the most obvious cases. As to practical hurdles faced by the human rights position, one issue concerns the question of power.

An important yardstick

Countries with power are more likely to obtain access to accused leaders than weaker countries. And, countries with power may refuse to have their nations subjected to universal jurisdiction for crimes (as the United States has done in respect of the proposed International Criminal Court).

In these circumstances, International Law should again be slow to take up arms against foreign leaders because the law could be accused of bias in its application. These factors considered, however, the trend towards the human rights position is supportable. If national leaders are to be encouraged to show respect for the rule of law, the existence of laws against genocide and other grave acts will play an important role. For this to work, however, the tribunals hearing such cases will need to be meticulous in the administration of justice. The trial of Slobodan Milosevic, the first by an international tribunal of a former head of State, will provide an important yardstick in this regard.

Stephen Vasciannie, an attorney-at-law, teaches at the University of the West Indies.

Back to Commentary