JUSTICE WITHOUT VICTORS
SUMMARY: A brave experiment in justice of a new kind is underway at The Hague. Too brave for a world of sovereign states?
(The Economist, January 7th-13th 1995)
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, to give its short title, issued its first indictment late last year: against the former commander of a Serb prison camp in Bosnia, Dragan Nikolic. The charges are murder, torture, wrongful imprisonment and forced deportation. In all, 14 other cases, some involving non-Serbs, are in train. More indictments are expected.
After just six months on the job, the tribunal's prosecutor, Richard Goldstone, a distinguished South African judge, can be proud of how far he has got. But a legal and political mountain lies ahead. And to complicate his job, he has just agreed to double as prosecutor for the United Nations tribunal on Rwanda.
The UN Security Council set up the ex-Yugoslavia tribunal in May 1993. With tact, Mr Goldstone blames subsequent delay not on lack of will among the UN'S powers, but on bureaucratic inertia and on the sheer newness of the venture. The tribunal is the first non-military international criminal court in modern times.
Its first prosecutor took one look and went back to politics in Venezuela. Empanelling judges took time: there are three each in the two trial chambers, plus five appeal judges. Rules of procedure had to be written from scratch. At trials in Nuremberg and Tokyo of German and Japanese leaders after 1945, the rules covered two typed sheets. The new International Tribunal has a 34-article statute and a 63-page procedural rule-book.
The law is not at issue. Since 1945, most states have accepted that genocide, serious breaches of war-crimes conventions and crimes against humanity are grievous offences wherever they occur, and, in theory, subject to the Jurisdiction of any court. But doing anything about this, let alone allowing an international court to do national courts' work for them, is full of consequence for jealous sovereignties. The ex-Yugoslavia tribunal is intended to take priority over national courts.
Different legal traditions have had to be reconciled. Some hearsay evidence, normally disallowed in English courts, will be admitted. Anglo-American techniques of cross-examination intended to break witnesses down are to be tempered. Corroboration will not be demanded in rape cases. The death penalty has been ruled out. Prison terms will follow old Yugoslav guidelines.
Argument has ground on for years about how a world criminal court might work. out of indignation at the war in Bosnia, the world has at last agreed to a workable legal framework, and in remarkably short time. Welcome progress this is, but will the framework be used?
Despite promises of support, the UN'S powers are dragging their feet. Mr Goldstone has nine investigating teams - 90 people in all. Double that is needed in his view. Victims' stories pour into the tribunal. His staff is too small to sort them. Countries are being slow to pass enabling laws obliging their officials to hand over suspects. Financially, the tribunal lives from hand to mouth. It asked the UN for $28m in 1995, a request which the General Assembly would not grant. So $7m was authorised until March.
There are yet deeper problems. Even if something called peace does come to ex-Yugoslavia, former enemies are unlikely to send their malefactors for trial. Under the tribunal's rules, nobody may be convicted in absentia.
And how high up the chain of command will charges go? "As high as the evidence takes me," Mr Goldstone says. Many people believe that the nationalist leaders of Serbia, Slobodan Milosevic at their head, abetted murder, rape and terror as means to drive non-Serbs from their homes in Croatia and Bosnia. Mr Goldstone is presumably not hoping for direct evidence of this, though it has been claimed that the Americans and British have damning telephone intercepts. Yet officers may still have to answer for atrocities by their soldiers, even in the absence of written orders, if a pattern of crime is clear, Mr Goldstone believes.
Would the same go for politicians who, in theory, control the generals? This is the tribunal's toughest test. Not trying the instigators of this vile war might deny justice. But charging the politicians with whom peace is being brokered would seem to mock common sense.
Is the ex-Yugoslavia tribunal doomed, then, to fail? Not necessarily. Imperfect justice may be better than none. In heinous cases where the accused is absent, the court may still publicise the indictment, with evidence, and put out an international warrant. Naming outlaws is not the same as catching them. But it would be a first step-and a big one for a world that has refused to accept anything resembling this new tribunal before.
(The Economist)
