Sir Timothy Garden
The United States State Department issued a statement welcoming the judgement of genocide issued in The Hague by the International Criminal Tribunal for the Former Yugoslavia against Radislav Krstic. The former Bosnian Serb General was sentenced to 46 years in prison for his part in the massacre of 7000 Muslims who had sought refuge in Srebrenica in July 1995, when it had been designated a safe haven by the UN. The Americans claimed that the judgement “sends a strong message that genocide will not be tolerated and that perpetrators will be brought to justice……. We commend the International Tribunal for its pursuit of justice in this matter and will continue to support credible efforts to bring violators of international humanitarian law to account. This enthusiasm for the work of the Tribunal sits somewhat oddly with the US broader opposition to the establishment of a strong International Criminal Court (ICC).
Since the end of the Cold War, significant progress has been made in bringing to account those who have grossly abused human rights, even when they have acted within their own borders. The Nuremberg trials of Nazi war criminals established the concept of crimes against humanity. In 1948, the United Nations agreed the Universal Declaration of Human Rights which gave an authority to the international community which was higher than national sovereignty. Yet for the next forty years the effects were very limited. The Cold War confrontation ensured that both right and left wing authoritarian regimes could continue to torture and murder their citizens without fear of external intervention. Those Tribunals for Yugoslavia and Rwanda which have been established followed the Nuremberg and Tokyo precedents of being regional courts, and can be criticised as being organised by the victors. The Bosnia and Kosovo conflicts have produced plenty of potential customers for The Hague, and progress has been steady if slow. The arrival of Slobodan Milosevic, the former President of Yugoslavia, has shown that leaders may be called to account eventually when gross human rights abuses happen on their watch. In Rwanda, the scale of the killing has made the dispensing of justice, in a reasonable time scale, very difficult. So far eight former leaders have been convicted of genocide.
The arm of international law is extending in other ways. The 1998 detention of General Pinochet in the UK as a result of an application by a Spanish lawyer was a watershed. It showed that former leaders accused of allowing torture and murder within their State could be detained and investigated when they travelled abroad. It is irrelevant that he was returned to Chile on health grounds: the principle had been established. No longer could a national leader claim sovereign immunity for crimes against humanity conducted within his own borders. This will have hampered the travel plans of a number of people. Already Israeli politicians are said to be examining carefully where they travel, if they fear that they can be accused of association with torture or killing in the past.
All of this is progress towards a more accountable civilised world. However, it brings us back to the question of the need for a global court rather than regional tribunals set up to inquire into specific conflicts. On 17 July 1988, in Rome, 120 nations voted to establish an International Criminal Court (ICC). It was a complex process. Some 1700 possible types of court were considered. The UK (after its change of government), Canada and Germany led a group of nations advocating a strong court, independent of the UN Security Council, with universal jurisdiction. The US, France and China preferred the Security Council to be in control (thus preventing any of the permanent members from being embarrassed). India, Iraq, Iran, Libya and Indonesia did not want the court to have any powers. In the end the Rome Statute was much weakened by trying to accommodate the US position, and the ICC will require Security Council authority for jurisdiction.
Although President Clinton signed the Treaty for the ICC in the last hours of his Presidency, it was clear that he did so expecting his successor and Congress to reject ratification. The Treaty needs 60 states to ratify it before it comes into force. It is well on course with 37 having ratified so far and 137 states having signed it. It looks as though the US will find itself in the company of some insalubrious countries if it decides not to ratify. In any case, we are unlikely to see many cases coming before the ICC for some time. However, those leaders who are tempted to abuse their authority will need to worry more about how they can have a comfortable retirement. That in turn may lead to fewer abuses of power over time.