There has been a welcome breakthrough in the past week for the International Criminal Tribunal for the Former Yugoslavia. Serbia handed over two critical witnesses to the slaughter of unarmed Muslims and the Croatian Government said Bosnian Croat militia general Tihomir Blaskic would turn himself in to the tribunal. The tribunal has now indicted 57 people: 46 Serbs, eight Croats and 3 Muslims. Alas, only two are in custody.
It is now 50 years since the Nuremberg war-crimes trial. Since then, despite all the war, killings and breaches of human rights, there has been very little accounting. And when there is any accounting it is usually in the form of national courts, or special courts to deal with specific conflicts.
The horrific events in Rwanda and the former Yugoslavia, however, seem at last to be pricking the consciences of world leaders, and the United Nations is closer to taking a step which should have been taken at its foundation … the establishment of a permanent international criminal court with its own criminal code. Such a court would have a general jurisdiction to deal with cases arising from any conflict past or future.
In the past week delegates holding preparatory talks at the United Nations have told of an absence of the usual foot-dragging by China and, to a lesser extent, India. The United States, an earlier opponent of a court with general jurisdiction (outside the control of the Security Council in which it has a veto), is now committed. So the signs are good.
The setting up of the court is important for two profound and related reasons. One is a general deterrent. The establishment of a such a court would say to all people who find themselves engaged in conflict that if they perpetrate war crimes … genocide, aggression, murder, abduction, rape or other human rights breaches … they will be answerable after the conflict ends and they will not be safe from the court’s reach virtually anywhere in the world.
The second reason is to overcome the unease that some jurists felt that the Nuremberg trials breached the well-established legal principles of nullum crimen sine lege (no crime without law) and nulla poena sine lege (no penalty without law). Most would argue that such high-level actions as killing other than in self-defence is self-evidently criminal even if the national law (be it Nazi, Serbian Rwandan or whatever) excuses it or does not deal with it. None the less, it is better that there is an international code of war crimes, as well as an international court to enforce it.
Fortunately, many United Nations members agree with this. The International Law Commission has prepared a draft statute in only two sessions. This will lay the groundwork for the international code.
There are some unresolved issues, especially the definition of “”aggression”, which, some politicians might argue, could be misapplied as victor’s vengeance. But even without including “”aggression” or “”waging an aggressive” war as a war crime, the code and setting up of a permanent court should go ahead. As the Nuremberg cases showed, it would be virtually impossible for a person responsible for waging an aggressive war not to meet justice by being also exposed to charges of murder.