LONDON – The arrest of the greatest European war criminal since Hitler could change the world. Significant though the arrest of Pinochet was in London two and a half years ago, in comparison that was dealing with a dead duck. This arrest is next to catching the bird on the wing. Milosevic only lost power a matter of months ago. His party still wields much influence in Serbian affairs. Yet the pressure to bring him to trail before the UN-created ad hoc criminal court for Yugoslavia has been strong enough to precipitate his arrest by the Serbian authorities.
It is only now a question of time, although he may first stand trial in his home country on lesser charges, before he is arraigned before the international tribunal on a charge of genocide. For some time now the so-called Pinochet effect has been at play – encouraging authorities in many parts of the world to call to account those accused of past war crimes. But now with Milosevic’s arrest we are likely to see the pursuit of those still in the political saddle, and currently engaged in committing crimes against humanity. Ironically, it is this very consequence that puts the wind up the Bush Administration.
Washington wants to pick and chose where it will deploy the weapon of a war crimes tribunal. But an International Criminal Court which, thanks to President Bill Clinton, the U.S. has now voted for, will soon be able to deploy its legal muscle anywhere in the world. In contrast, the ad hoc courts, first created in 1993 with the court for ex-Yugoslavia and followed by courts for Rwanda and Sierra Leone, are more controllable, with their country-specific mandates.
They are not loose cannons on the deck that may fire one day – who knows? – in the direction of the United States itself. Indeed, the Yugoslavia court has been difficult enough to keep on course with a group of academics persuading its chief prosecutor, Carla Del Ponte, to investigate whether the Nato bombing of Belgrade two years ago was a criminal offence. In the end Mrs Del Ponte decided there was no case to pursue and the matter was dropped, much to the chagrin of Amnesty International, Human Rights Watch and many other human rights activists.
Thus Washington has made it rather clear that despite Clinton’s decision to back the creation of the International Criminal Court this administration has no intention of ratifying the treaty and will not become an active party to its decisions and deliberations.
But this is a rather dangerous position for the U.S. to be in. Although the court is not yet established and operational – it cannot be until 60 countries have ratified the treaty- within a couple of years it will be. (All the U.S.’s Nato allies are expected to ratify it.) Then the U.S. will confront the painful decision: is it be better to be inside the tent, with an important say in picking the judges, prosecutors and other staff, or being outside whining and complaining about its decisions, some of which it may welcome, say the prosecution of Saddam Hussein and some of which it may hate, say the prosecution of General Rios Montt of Guatemala, with whom the Reagan Administration had a close relationship.(In fact the court can’t work retrospectively.)
Of course, there is in theory the danger that the Court could train its guns on the U.S. in the course of some future war. But Washington has to be sensible about this. First, the Court, as the British Ministry of Defence has just made clear in a briefing, would not remove jurisdiction from national courts and, moreover, the international court can only act if there are no national prosecutions in the country of the accused. The defence ministry observed that the British authorities themselves would feel legally bound to prosecute any of its soldiers who allegedly committed war crimes, since rules of engagement are routinely drawn up for British forces, in consultation with British lawyers, to ensure actions taken under them would accord with national and international law. International law is very clear on what is a war crime and what is not.
Certainly, at the present time, going to war is not an illegal act. But London has decided, belatedly perhaps – one has to go no further back than “Bloody Sunday” in Northern Ireland – that firing on innocent protestors, or using torture or savaging civilians en masse is no longer an acceptable tool of war.
Has Washington thought through the consequences of abstention? If there is a future Milosevic, there can be no more ad hoc courts once a central court is up and working. Thus if the International Criminal Court doesn’t act nobody will and Washington will find that it has lost a weapon of law it has come to value. We will be back to where we came in with future Milosevics having nothing to fear.
