An Impartial Tribunal?
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avgust 20, 2008


















An Impartial Tribunal?

By Chris Black Lawyer, Toronto


Private justice replacing public justice

The indictment of Slobodan Milosevic for alleged war crimes raises important questions about the impartiality and, ultimately, the purpose of the International Criminal Tribunal. For centuries, the independence of judicial bodies has been considered one of the fundamental precepts of the quest for justice. As Lord Hewart stated in 1924, it is "...of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." It has also been said that there is nothing more important than the public administration of justice. But in the case of the International Criminal Tribunal a compelling argument can be made that private justice has replaced public justice, that even the appearance of fundamental justice has been replaced by an open contempt for justice.

It is clear that from the beginning American, British, French and German interests were behind the creation of the Tribunal and worked ceaselessly behind the scenes in order to create it. They first considered doing so in regards to Iraq and Saddam Hussein, during the Gulf War. The idea apparently originated with the United States Department of the Army, which alone should tell you something about its true purpose. The rhetoric used to justify such a body to the general public was of course heavily seasoned with concerns for "human rights" the "dignity of the individual", "genocide" and "democracy".

However, they had a problem. It was generally agreed that no such tribunal could be created without the mechanism of a treaty which had to be ratified by all those affected by it. There was no time to create such a treaty with respect to Hussein so other methods were used to put pressure on the Iraqi government. But between 1991 and 1993, the use of an international criminal court as a means of effecting policy and to be created by the members of the Security Council, instead of by treaty was pushed by those four countries.


A war crimes tribunal rather than a international court

A draft treaty to create a truly international criminal court, one which applied to all states, the last in a long list of attempts dating back to the 1890's, was put together. But its ratification has not taken place as several important powers, particularly the United States, refuse to sign it for fear of being caught in its web. For thirty years the United States has tried to block such a treaty. It opposes universal jurisdiction and it opposes an independent prosecutor. It wants any prosecutions to go through the Security Council subject to its right of veto. In fact, Jesse Helms, the conservative US senator said such a treaty, if presented to congress for ratification would be "dead on arrival". It would seem that the treaty is itself nothing more than window dressing to satisfy the public that the nations of the world really care about human rights and war crimes in order to complement their rhetoric about it. For without ratification by the major powers it is a dead letter. The United States remains stubborn in its opposition to this treaty but then it has a bit more to worry about than most countries.

The next opportunity to try this experiment was Yugoslavia. In order to accelerate the break up of that country into quasi-independent colonies, principally of Germany and the United States, it was necessary to discredit their leaderships. An effective propaganda weapon in such an exercise is of course a tribunal with an international character which the public will accept as a neutral instrument of justice but which is controlled for political ends.

The Tribunal was created by the Security Council in its Resolutions 808 and 827 of 1993. Both resolutions stated that the situation in Bosnia at that time, constituted a threat to international peace and security and that a tribunal to prosecute war criminals would help to restore peace. It all sounds very nice until one realizes that there was no basis for the characterization of the situation in Bosnia as a threat to international peace. It was a civil war (partly controlled by the very countries which wanted to create a tribunal). But the members of the Security Council had to characterize it that way otherwise the members of the Security Council had no jurisdiction to act. The setup for this characterization was Resolution 688 of 1991 in which the Security Council stated that disregard for human rights constitutes a threat to international security and can no longer be treated as an internal matter.

Part 2.