UN War Crimes Tribunal Delivers a Travesty of Justice
By Robert M. Hayden
Justice is the right to do whatever we think must be done, and therefore
justice can be anything.
--Mesa Selimovic, Death and the Dervish
Many American lawyers, commentators, and politicians view the International
Criminal Tribunal for the Former Yugoslavia
(hereafter, ICTY or the
Tribunal) as a manifestation of the triumph of law and justice in international
affairs, since those who
violated international humanitarian law and the
laws of war were not shielded by state sovereignty.
The ICTY, however, delivers a justice that is biased, with prosecutorial
decisions based on the personal and national
characteristics of the accused
rather than on what available evidence indicates the person has done. This bias
is seen in the
failure to prosecute NATO personnel for acts that are
comparable to those of people already indicted, and in the failure to
prosecute NATO personnel for prima facie war crimes. This pattern of
politically driven prosecution is accompanied by the
use of the Tribunal as
a tool for Western countries, especially the United States, to pursue political
goals in the Balkans.
Further, the Tribunal's rules -- some of which
resemble those of the Spanish Inquisition -- and procedural decisions make it
difficult for defendants to receive a fair trial.
The politicization of the Tribunal is itself an important topic, but there is
a larger issue. The facts of the situation are well known.
Yet my arguments
are certainly not accepted by most of those who claim to be human rights
advocates. Why not? The answer
lies in the transformation taking place in
concepts of human rights: instead of protesting the application of state
violence on
non-violent dissidents, activists are demanding the application
of massive violence on states deemed to be inferior. I see this
transformation as being from human rights to humanrights-ism, and by adding
the "ism," I seek to show how far the human
rights movement has repudiated
the principles it professes to embody. The ICTY is a particularly striking
manifestation of
humanrights-ism because of the high principles that are
routinely invoked to justify it.
One glaring example of politicized justice is the failure of the ICTY
Prosecutor to indict NATO leaders for the use of
cluster
bombs. This prosecutorial standard
was set in July 1995, when Milan Martic, president of the
self-proclaimed Serb Republic in
Croatia, was
indicted for violations of the laws and customs of war on the grounds that he
had ordered the May 1995 missile
attack on
Zagreb. According to the indictment, what made the bombardment a war crime was
that the missiles had been fitted
with cluster
warheads. Seven civilians were killed and many more wounded, and damage was done
to a home for the aged and
to a children's
hospital.
Why, then, have there been no indictments of NATO's May 7 attack on the city
of Nis, where cluster bombs fell on the market,
killing fifteen people, and hitting also the city's main
hospital? It is not acceptable to say that NATO was only aiming at
military
targets and missed; after all, Martic maintained that he was aiming
at military targets in Zagreb. The ICTY Prosecutor, Carla
Del Ponte, has
taken the official position that cluster bombs are suitable not for use against
military targets but only to kill
people. While the Prosecutor says that
Martic targeted cities intentionally, this is also true of NATO generals,
especially the
American ones, who were even complaining that French
politicians did not permit them to attack more sites in Yugoslav cities.
In
late December 1999, the ICTY Prosecutor did state that she was investigating
NATO's conduct during the Kosovo war,
including the question of the use of
cluster bombs. However, within days, tribunal officials declared the
investigation a
preliminary document that was highly unlikely to lead to
indictments or even to be published. The Prosecutor had said that if the
report indicated that NATO broke the Geneva conventions she would indict
those responsible; however, four days later she
issued a press release
stating that NATO is "not under investigation by the Office of the Prosecutor. .
. . There is no formal
inquiry into the actions of NATO during the
conflict."
This quick about-face may have been unrelated to U.S.
government denunciations of the reported inquiry into NATO's actions.
But another possibility is suggested when one examines the responses of
official NATO spokesperson, Jamie Shea, to
questions about the possibility
of NATO liability for war crimes before the ICTY. According to Shea, "NATO is
the friend of
the Tribunal. NATO countries are those
that have provided the finances to set up the Tribunal, we are among the
majority
financiers" (May 16); "NATO
countries have established these tribunals [and] fund these tribunals" (May 17).
No wonder Shea
was "certain" that the Prosecutor would only indict "people
of Yugoslav nationality."
When the Prosecutor fails to act, human rights organizations might be
expected to try to shame them into doing so. Human
Rights Watch (HRW),
however, has done the opposite, seeming to assist in efforts to shield NATO
personnel from possible
liability before the ICTY.
To its credit, HRW has recognized that NATO's actions in its war against
Yugoslavia signaled "a disturbing disregard for the
principles of
humanitarianism that should guide any such action" (HRW's World Report 2000) and
particularly criticized
NATO's use of cluster
bombs. The report also demonstrated that some of NATO's attacks on
Yugoslav infrastructure were
clearly in violation of the Geneva Conventions.
Yet, while acknowledging that "NATO violated international humanitarian law,"
HRW has proclaimed that it found "no evidence of war crimes" by NATO
(Civilian Deaths in the NATO Air Campaign,
HRW report, February 2000). Apart
from her public denial of any implication that violations of international
humanitarian law
are less serious than war crimes (genocide, after all, is
the former, not the latter), judging from her Martic indictment, the ICTY
Prosecutor would seem to disagree with HRW's assessment of the use of
cluster bombs. At the same time, HRW gives no
explanation for its deviation
from the standards set by the Prosecutor.
Even more curiously, HRW does not call for prosecution by the ICTY of its
acknowledged violations of international
humanitarian law, but rather only
for "an impartial and independent investigation" of them by NATO governments!
This is in
striking contrast to HRW's demand in December 1999 that the UN
Security Council establish an international commission of
inquiry into
Russian actions in Chechnya with the aim of facilitating prosecution of those
who have committed human rights
violations.
A more fundamental problem, however, is HRW's assertion that war can be seen
as humanitarian. HRW introduced its World
Report 2000 by trumpeting the
trumping of state sovereignty by human rights. The report reveals that courts
are now willing to
indict political leaders, while organizations such as
NATO are willing to intervene militarily against regimes that commit crimes
against humanity by citing specifically the ICTY and the NATO military
actions against Yugoslavia. It concludes that all of this
"foretells an era
in which the defense of human rights can move from a paradigm of pressure based
on international human rights
law to one of law enforcement."
This assertion is either naive or cynical. Attacks against civilians are
inevitable in any supposedly humanitarian intervention.
Every nation has the
right to defend itself, and at the level of practical politics, a nation that is
attacked will try to resist the
attacker. Winning the war thus requires
defeating not only the army but the nation -- i.e., the civilian population.
Therefore, the
decision to attack a sovereign state is, logically, a
decision to attack the civilian population of that state, not just the military.
In
this sense, the constant repetition during the Kosovo war that "NATO
never targets civilians" was hypocritical, presumably
meant to obscure the
uncomfortable fact that humanitarian intervention requires the committing of
humanitarian war crimes.
What the New York Times has approvingly described
as the "elevation" of human rights to a "military priority" (see its editorial
of 13 June 1999) is thus actually a striking inversion of the principles
that have guided the growth of human rights organizations.
For example,
Amnesty International long required that its "prisoners of conscience" not be
advocates or practitioners of
violence. "Humanitarian intervention,"
however, transforms what had been a moral critique of violence into a moral
crusade for
violence on a mass scale.
The question remains: Why have human rights advocates ignored the actions by
NATO and by the ICTY that they would
condemn were they performed by, say,
China, Russia, or India?
This question is addressed directly in a brilliant and brave article in the
East European Constitutional Review (#97, 1999) by
Dimitrina Petrovna,
executive director of the European Roma Rights Center in Budapest. Petrovna
acknowledges that she
herself was in favor of NATO intervention in Kosovo
until she realized, soon after the bombing began, that it was escalating the
human rights catastrophe for everyone in the Federal Republic of Yugoslavia,
inside Kosovo and in Serbia. She correctly
observed that "from a campaign to
defend the lives and rights of Kosovo Albanians, [the war] metamorphosed into
something
else: the monster of an escalated war."
While Petrovna herself then called for an immediate end to the bombing and a
negotiated peace, few others in the human rights
community have done the
same. She notes that for East European human rights workers,
their very status and funding could
have been
jeopardized by criticism of NATO and especially of the United States. NATO
countries are, after all, the major
financiers of
most humanitarian entities in Eastern Europe. In Western countries in
particular, however, the reasons are more
troubling. There, she notes,
"human rights are becoming indistinguishable from official political ideology,"
producing "a gradual
usurpation of the human-rights culture by the dominant
powers, and the very argument for human rights is turning into an
apologia
for the global status quo, all in the interests of these very powers."
From the evidence of NATO's actions in Kosovo and the ICTY's treatment of
defendants, this new concept of human rights,
no longer premised on the
protection of people from the violence of states, seeks to justify the
application of massive violence
by the world's most powerful states against
weaker ones. With this transformation, human rights betrays its own premises and
thus becomes its own travesty: humanrights-ism.
