ABSTRACT: Two conditions - no death penalty and nobody being tried in their absence - were accepted by the U.N. for judging war crimes in the

Ex-Yugoslavia, thanks mostly to Emma Bonino. She discusses them here

(WORLDWIDE PARLIAMENTARY CAMPAIGN FOR THE ABOLITION OF THE DEATH PENALTY BY THE YEAR 200 - Radical party/International League for the abolition of the death penalty by the year 2000)

The setting up of an International Court to try war crimes committed in the former Yugoslavia, which - as provided for by the U.N. Security Council project - has no recourse to the death penalty, not even in the case of the "butchers of Sarajevo", would orientate national legal systems and public opinion towards an abolitionist way of thinking. This International Court is a logical development of the Geneva Convention of '49 and the humanitarian rights provided for therein: such a vertical organization of International Law combined with the provisions of the Geneva Convention (a Code applied in wartime), upholding the principles of universality (principle of universality as applied to criminal jurisdiction) and uniformity at a legal and penal level, may well result in individual nations drawing up a common substantial law. This being the case, it would no longer be acceptable for individual States to maintain the death penalty for crimes infinitely less serious than the genocide or the massacres committed in

the former Yugoslavia, if these crimes were no longer punishable by death.

An International Court to try war crimes has been the principal item on the Radical Party's political agenda for about a year. What have been the most important achievements regarding this project?

The idea of an ad hoc Court was born immediately after the U.N. Security Council approved Resolution 780, on 6 October 1992. This Resolution provided for a Committee of Experts to investigate the violations of human rights conventions and international agreements in the territory of the former Yugoslavia. In December of the same year Prof. Cherif Bassiouni, one of the committee members and a member of the Radical Party, organized the Syracuse Convention, in which I participated, in order to study the problem of a permanent International Court, as well as the ad hoc Court. Upon my return from Syracuse, I extended the proposal to Italian MPs and also to members of the Radical Party. In particular, we proposed the setting up of the Tribunal to Giuliano Anmato, who was Italian Prime Minister then, at a meeting which took place at the beginning of January 1993.

On 22 January 1993, Amato formed an Italian Committee of Experts, chaired by the Minister of Justice Giovanni Conso, giving them 30 days to present a proposal for the ad hoc Court to the U.N. Security Council. They were able to meat the deadline, and the Conso Committee delivered its proposal to the U.N. on 17 February 1993.

The Italian project made two important conditions that were maintained: one, that the death penalty should not be applied under any circumstances; two, that no one should be tried in their absence.

On 22 February 1993, the Security Council made the decision to set up an International Court to judge war crimes in the

former Yugoslavia, giving the Secretary General two months to combine the proposals submitted by France, Sweden and Italy in a final proposal.

Boutros Ghali produced the document in the required time and the project was approved with a Resolution passed in May of this year, which also established the procedures for appointing the judges. The Italian Government put forward a candidate in the person of Prof. Antonio Cassese, Chair of the Committee against torture in Strasburg; and we are now in the process of choosing the judges.

The Transnational Radical Party has supported this project with many initiatives.

I would like to point out that an absolute majority of MPs in the Kosovo parliament signed a motion supporting the proposal; deputies in Macedonia, Bulgaria and Moldavia did the same. Besides this, we collected tens of thousands of signatures on two appeals: one for the abolition of the death penalty, and the other for the setting up of the permanent International Court. They were presented to Ibraihma Fall, Secretary General of the U.N. Conference at Vienna; and we are now waiting to see what provisions the final document produced by the Conference will make on these two issues. We have collected about 60,000 signatures on the appeal and, in the last few days, 400 or so arrived from Burkina Faso and the Ivory Coast!

After the recent failure in diplomatic talks in the former Yugoslavia do you think that the International Court will be able to enforce its judgment?

I am not so foolish as to believe that our hopes will necessarily become a reality. But I think that we must all do everything in our power to set up the Court to try war crimes in the former Yugoslavia, as it constitutes the first step in creating a permanent International Court. I think that this is indispensable for international law, because all the agreements - from the one on genocide to those concerning human rights - have never had the necessary instruments for their enforcement, and have always been destined to remain appeals, or demonstrations based on good intentions.

The. U.N. is still an inadequate instrument because no one has wanted it to function for forty years. Now we have to deal with the problem of democratizing and strengthening this international body.

I believe you have recently discussed this with Boutros Ghali...

It is something which is easily verified. For example, thirteen requests for peacekeeping forces were made to the U.N. between 1945 and 1987. And 13 requests were made between 1987 and 1993, with 5 of these being made in 1992: this kind of escalation is frightening.

The U.N. has to meet these new needs with the same instruments as always - including financial ones - and can only intervene in the way that it has always done. Today, the U.N. is not capable of living up to the expectations placed in this international body by more and more people.

The Americans have sent a Task Force composed of jurists and attorneys at law to Somalia to deliver General Aidid into the hands of international justice and try him for war crimes. Do you think that this action would have a positive effect on the Balkans crisis if it were successful?

Yes, probably. But I'm not quite sure which body should judge Aidid. It cannot possibly be the permanent Court because it has not yet been set up, and it will only have a statute ad interim in September-October of this year, when it will be approved at the plenary Assembly of the U.N.. This statute will, therefore, only be ready in two or three years. So I still don't know which body should occupy itself with the above initiative.

How is the problem of people being tried in their absence resolved?

As far as the ad hoc Court is concerned, it will not be possible to try people in their absence. I am very happy about this because it means upholding the law as opposed to a political process. The fact remains that the criminals in question become international pariahs, in other words, people who can no longer leave their own countries, because as soon as they cross the border they will come under the jurisdiction of states which have adhered to the International Court. I think this constitutes the first step towards isolating these people and imposing some kind of limit on their activities. For instance, let's suppose that Seselij is condemned but Milosevic does not want to hand him over. In this particular case, I think there would be a number of possibilities for exerting pressure, both internationally and in Serbia, where people are oppressed by similar dictators.

According to which process will the International Court for the former Yugoslavia and the permanent International Court be set up?

No legal process is necessary. But it will require a complex political process. The VI Committee of the U.N. has been studying the problem of the permanent Court for almost 10 years. Prof. Bassiouni, one of the greatest experts in his field. and the person who wrote the draft statute, knows that every possible aspect has been thoroughly examined and all the possible options have been raised: all we need now is the political will to decide on the right statute, the right penal code and the right structure. Furthermore, the permanent Court cannot be set up by the Security Council under the heading Peace and Security (Chapter VII), but will require a special agreement or convention to be drawn up. The procedures are different, but so are the services the two Courts will perform.

However, I would like to answer your question by saying that the process is entirely political.

The permanent Court has two very positive advantages over the Court for the former Yugoslavia. First of all, it can act as a deterrent without having to wait for 200,000 people to die as the result of a country imposing its political will; and second, the very fact that it is a permanet Court is less likely to give people the feeling that the conquerers are trying the conquered, which was the case at Nuremberg. I don't think this will be a problem as far as the former Yugoslavia is concerned because, if anything, the Court is being set up for the conquered to bring the conquerers to justice.

Many of the countries which are members of the U.N. Security Council still maintain the death penalty in their penal code. And a number of death sentences were also pronounced at the end of the Nuremberg trials. What kind of sentences can we expect in the future?

In the proposal presented by Italy, the ad hoc Court excludes the possibility of the death penalty being inflicted. The statute states that the guilty will be sentenced according to the penal laws in their own country, but without the death penalty being imposed.

Countries like the U.S. -which imposes the death penalty for crimes which, granted, are horrendous but, nevertheless, minor, such as homicide and rape - are at variance with themselves. This gives us another opportunity to launch campaigns and initiatives.