When power subverts the law

Two seminal books question the possibility of international criminal justice in a unipolar world













10 January 2006
The Hindu

When power subverts the law

Siddharth Varadarajan

HOW AMERICA GETS AWAY WITH MURDER — Illegal Wars, Collateral Damage and Crimes against Humanity: Michael Mandel; Pluto Press, 345, Archway Road, London N6 5AA. £ 14.99.

GLOBAL JUSTICE OR GLOBAL REVENGE? — International Criminal Justice at the Crossroads: Hans Kochler; Indian Society for International Law and Manak Publications in association with SpringerWien NewYork, B-7, Saraswati Complex, Laxmi Nagar, New Delhi-110092. Rs. 400.

Four decades after the Nuremberg trials of Nazi war criminals, the end of Cold War rivalry led to renewed interest in the architecture of international criminal law. The blatant violation of international humanitarian law in the armed conflicts which erupted during the break-up of the former Yugoslavia led the United Nations Security Council (UNSC) to create, in August 1992, an ad hoc judicial body called the International Criminal Tribunal for the former Yugoslavia (ICTY). The tribunal was armed with a sweeping mandate to investigate and prosecute all war crimes and crimes against humanity committed on the undivided territory of that country by soldiers, commanders and civilian leaders alike. The UNSC followed this action up by the establishment of another ad hoc tribunal to prosecute cases stemming from the 1994 genocide in Rwanda (ICTR).

The two books under review critically examine these and other legal efforts to protect human rights and conclude that the quest for a system of international criminal justice, which can stop or punish grave breaches of humanitarian law, has been fatally compromised by power politics. Kochler, a well-known international legal scholar who served as the U.N.'s observer to the Lockerbie bombing trial, believes the answer lies in the newly created International Criminal Court (ICC).

Despite its manifest shortcomings, the ICC represents a paradigmatic shift in the quest for universal jurisdiction but its ability to deliver will depend crucially on how it negotiates its way through the thicket of international power politics.

Five modes of justice

In making his case, Kochler provides a remarkably lucid yet detailed account of the developing idea and practice of international criminal justice since the 19th Century. He identifies the five possible modes for international criminal justice: ad hoc tribunals established by victorious war powers or the UNSC such as Nuremberg, the ICTY and ICTR; universal jurisdiction by national judiciaries such as Spain's attempted prosecution of the former Chilean dictator Augusto Pinochet or a Belgian court's attempt to indict Israeli Prime Minister Ariel Sharon; special courts in domestic jurisdictions established by international agreement, such as the Lockerbie court set up under Scottish law in the Netherlands to try two Libyan intelligence agents for the bombing of a PanAm airliner, or the proposed genocide courts in Cambodia; special courts set up by agreement between the UNSC and a member state, such as Sierra Leone; and the ICC.

The exercise of universal jurisdiction by national judiciaries stems from the First Geneva Convention which sets out the obligation of a state to bring individuals who have committed "grave breaches" of the Conventions "regardless of their nationality, before its own courts." (Article 49) But despite its promise, Kochler concludes that the exercise of universal jurisdiction by national judiciaries runs the risk of creating "international legal anarchy" and can hardly be free from the taint of politics.

Politicisation

All ad hoc attempts up to and including the Nuremberg and Tokyo war crimes trials, Kochler argues, suffer from a basic flaw: the separation of powers so essential for justice ("No one can be judge in his own case.") was violated. While its classification of crimes— including the supreme international crime of aggression— remains Nuremberg's enduring legacy, Kochler points out that its methods and manner of proceedings can hardly be considered a model for an international court today.

He argues that the ad hoc tribunals set up by the UNSC suffer from the same defect: they are established in a discriminatory manner, are in violation of the principle of the separation of powers and lead to the politicisation of justice — an argument Michael Mandel makes with devastating legal precision in How America Gets Away with Murder.

A distinguished professor of law at York University in Canada, Mandel was involved in a celebrated but unsuccessful attempt to get the ICTY's prosecutor to open an investigation against NATO commanders and leaders for their illegal bombing campaign against Yugoslavia in 1999. His account of the functioning of the two ICTY prosecutors — Louise Arbour and Carla del Ponte — and some of its judges provides a shocking insight into the arbitrary and politicised nature of the tribunal.

This is hardly surprising since both prosecutors had been pre-screened by the U.S. and the Security Council. Ms. Arbour refused to even countenance complaints that the killing of civilians by NATO bombs was a violation of the ICTY statute. Ms. del Ponte was little better. She appointed a committee to look into incidents like the deliberate attack on the RTS radio and television station in Belgrade and the bombing of a passenger train on the Grdelica bridge in Serbia — incidents that Amnesty International labelled war crimes. The NATO refused to reply to any questions put to it but that did not prevent the committee from coming up with a predictable report declaring there was no need for the ICTY to open an investigation against the U.S.-led military alliance. Its main argument: it found the explanations given by NATO press releases and statements during the war to be credible!

State of justice

Though the ICTY and NATO's aggression against Yugoslavia form the core of Mandel's highly readable and meticulously referenced book, he too surveys the state of international justice and comes up with assessments broadly similar to those of Kochler. On the ICC, however, Mandel is less sanguine, emphasising the numerous compromises that were made in the negotiation of the Rome Statute to accommodate the concerns of the U.S. Indeed, he says the whole drive for international criminal justice has been "very good at legitimating war and bad at promoting peace."

Kochler recognises the shortcomings but nevertheless argues that it is only the ICC which is capable of delivering impartial justice. "The ICC is the maximum achievable within the present world power politics, which is why the U.S. opposes it." Washington's primary concern is to ensure its leaders, soldiers and citizens are never hauled up before the court. Despite not being a party to the ICC, however, the court's jurisdiction would apply to U.S. nationals accused of violating its statute on the territory of countries which are a party to the court.

It is this "principle of territoriality" which gives the court some bite. Had Iraq been a signatory to the ICC, the illegal U.S. invasion in 2003 would still not have been covered because the crime of aggression was left undefined. However, U.S. forces could theoretically have been hauled up before the ICC for their numerous violations of the laws of war.

Lesson

For both Kochler and Mandel, the U.S. notion of sovereign immunity is not compatible with modern international law. Writes Kochler: "The U.S. engages in an inconsistent policy of insisting on the immunity of its leaders for acts of state everywhere, while demanding the prosecution of foreign leaders for war crimes committed in exercise of their official functions."

The key lesson is that universal jurisdiction can only be exercised in a framework that is itself universal, hence Kochler's support for the ICC. But he adds that there must be proper rules and procedures, unlike the ICTY which allows judges from countries which waged war against Yugoslavia to stand in judgment against that country's leaders. The statute of the ICC represents "only an imperfect separation of the court's judicial powers from executive authority including that of individual states but most importantly the Security Council."

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