http://www.jang.com.pk/thenews/aug2005-daily/22-08-2005/oped/o3.htm
Jang (Pakistan)
August 22, 2005
Opinion
Interpreting war crimes
International human rights groups have long called for a uniform and
global legal system for dealing with war crimes and crimes against
humanity
Saad S. Khan
The "World Day for International Justice" was observed on July 17
across the world. Meanwhile, the families of victims from all over
Bosnia had converged into Srebrenica late last week to commemorate the
death of thousands of unarmed Bosnians at the hands of the Serb
forces, ten years ago. The anniversary was marked by men marching on
the same trek as the 8,000 men and boys had, on their march of death.
The sombre atmosphere at this ceremony was a stark reminder to the
world community that justice is still awaited.
The horrors of the war in Yugoslavia had persuaded the world community
to establish an International Criminal Tribunal on former Yugoslavia
(ICTY) that is trying persons guilty of war crimes. The current trial
of former Yugoslav President Slobodan Milosevic, among others, on
account of alleged war crimes at Hague, as well as the outcome of the
efforts of international community to nab the suspects still at large,
mainly ex-President Radovan Karazdic and General Ratko Mladic, is
being seen as a crucial test of international law and international
legal institutions.
The concept of war crimes is a late development in the paradigm of
international politics, as before the World War II, it was generally
accepted that the horrors of war were in the nature of the act itself.
But, during the Great War, the murder of millions of civilian people
by Nazi Germany, and the mistreatment of both civilians and prisoners
of war by the Japanese, prompted the Allied powers to prosecute the
people they believed to be the perpetrators of these crimes. The
Nuremberg trials in 1945-6 led to twelve German leaders being
executed. A similar process started in Tokyo in 1948 leading to the
hanging of seven Japanese military commanders. These trials are
essentially the only precedents for the cases that ICTY hears.
In some cases, however, individual governments, feeling that justice
has not been done, have acted on their own initiative. In 1960, Adolf
Eichmann, a high-profile Nazi closely involved in the organisation of
the concentration camps, was tracked down and kidnapped in Argentina
by Israeli agents, and taken to Israel, where he was put on trial and
subsequently hanged.
At the heart of the concept of war crimes is the idea that an
individual can be held responsible for the actions of a country and
its nation's soldiers. The body of laws that define a war crime are
the Geneva Conventions, a broader and older area of laws referred to
as the Laws and Customs of War, and, in the case of the former
Yugoslavia, the statutes of the ICTY.
The Geneva Convention, 1949, defines war crimes as: "Wilful killing,
torture or inhuman treatment, including... wilfully causing great
suffering or serious injury to body or health, unlawful deportation or
transfer or unlawful confinement of a protected person, compelling a
protected person to serve in the forces of a hostile power, or
wilfully depriving a protected person of the rights of fair and
regular trial, ...taking of hostages and extensive destruction and
appropriation of property, not justified by military necessity and
carried out unlawfully and wantonly."
Since the law on war crimes is an evolutionary process, the Court has
not restricted itself to the definitions of the Statute and its
judgments are founding the case law that is expanding the horizon. In
February, 2001, for instance, the tribunal delivered a ruling that
made mass systematic rape and sexual enslavement in a time of war a
crime against humanity. Mass rape, or rape used as a tool of war, was
then elevated from being a violation of the customs of war to one of
the most heinous war crimes of all -- second only to genocide.
It is not always easy to spot a war crime. The displacement of
civilians from their homes by an enemy army is not necessarily a war
crime. It can be argued that the displacement is being carried out for
the protection of the civilians. It only becomes a war crime if the
expulsions can be proven to be part of a campaign of ethnic cleansing
or designed as a mass punishment of civilians. Equally, is it a war
crime for the air force of one country to bomb an enemy's television
station because of the propaganda in the broadcasts? Under the Geneva
Conventions, this is not a war crime. Just about all aspects of a
state's infrastructure -- roads, bridges, power stations, factories --
become legitimate targets if they might be put to military use. Such
attacks only become war crimes if the extent of collateral damage to
civilians and civilian interests resulting from the attack would be
excessive compared to the military advantage gained from the attack.
International human rights groups have long called for a uniform and
global legal system for dealing with war crimes and crimes against
humanity. The move to establish an International Criminal Court is a
step in this direction. This statute was adopted in 1998 and the Rome
Treaty was enforced on July 1, 2002. As of now, 139 countries had
signed the Rome Treaty that establishes the ICT and 99 countries have
ratified it. There is, these days, pressure on Pakistani government
from the country's civil societies organisations to ratify the Rome
Treaty becoming the 100th such nation. The United States has refused
to sign the treaty, arguing the court could be used to pursue
politically motivated prosecutions.
Apart from the International Criminal Tribunal for the Former
Yugoslavia, established in May 1993, a second international tribunal
was established in Arusha, Tanzania, for cases resulting from the
atrocities carried out in Rwanda in 1994. Although both the Hague and
Arusha tribunals represent significant steps in bringing those accused
of war crimes to justice, they are, like Nuremberg and Tokyo,
committed to dealing with war crimes in specific conflicts. The
establishment of the ICC will codify and unify the legal system and
processes to try war crimes across the board.
The question of whether international courts of the kind of Hague and
Arusha Tribunals are political -- as not only Mr Milosevic and other
co-accused, but also the United States, have argued -- hangs over all
international legal institutions. In a sense it is true that the
tribunals are political since the international political will to
establish and fund them has to exist before they can get to work.
Critics of such special tribunals often argue that international
justice can only be truly legitimate when all war crimes, committed by
any country, come under the jurisdiction of a single international
court. But as noted above, the biggest stumbling block to the idea of
ICC is that the United States is firmly opposed to any Court,
universal or conflict-specific, that will have jurisdiction over its
soldiers also.
Coming back to the ICTY, which was established by resolution 827 of
the UN Security Council in May 1993, with the concurrence of the US
and other big powers, as none of their soldiers had been engaged in
civil war in Bosnia. The Tribunal is headed by a President, Theodor
Meron of US, who is assisted by the Vice-President Fausto Pocar of
Italy. There are three presiding judges: Patrick Lipton Robinson
(Jamaica), Carmel A Agius (Malta), Liu Daqun (China), who are in turn
supported by 11 other judges from various countries. There are also up
to nine ad litem judges. The Chief Prosecutor Carla Del Ponte belongs
to Switzerland, while her deputy is David Tolbert of the US. Ponte is,
in fact, the third person to head the Prosecution at the ICTY. Her
predecessors include the Canadian Louise Arbor and the South African
Richard Goldstone. The tribunal has 1,062 staff members from 79
countries and the annual budget is around $272 million.
The tribunal may not try suspects in absentia, nor impose the death
penalty. The maximum sentence it can hand down is life imprisonment.
Indictments can be public or sealed. The tribunal has large teams of
investigators working across the former Yugoslavia but it does not
have its own police force and instead relies on the former Yugoslav
republics or the international peace forces, S-For and K-For in Bosnia
and Kosovo, to make arrests. Thousands of soldiers and civilians were
involved in the violence as the former Yugoslavia disintegrated -- but
one consistent thread running throughout the proceedings has been the
attempt to bring to trial those ultimately responsible for the crimes,
i.e. the decision-makers, instead of ordinary soldiers, criminals and
thugs.
If justice is delivered expeditiously, it would bring some solace to
the families of the victims of the incidents such as the Srebrenica
genocide. It is high time that the EU leadership rethinks its stance
on the abolition of the capital punishment. The decision makers should
ponder over reintroducing the death penalty for genocide and crimes
against humanity, even if not for ordinary crimes.
The writer is an author and analyst on politics, law and governance in
the Muslim world.
Email: [EMAIL PROTECTED]
Serbian News Network - SNN
[email protected]
http://www.antic.org/
