A Weak Peace : Extending the Arm of International Justice

The fact that Yugoslav President Slobodan Milosevic has been indicted for war crimes does not necessarily mean he will be arrested. The sword of Damocles hangs over him but has not yet fallen.

Yet, Milosevic’s indictment by the International Criminal Tribunal last month is a breakthrough for international criminal justice. It marks the the first time since the Nuremberg Tribunal that a head of state is being called to account for alleged crimes. Coming so soon after Spain’s indictment of former Chilean head of state Augusto Pinochet, it reveals how profoundly international civil society has affected the impunity that political leaders responsible for major international crimes have enjoyed since World War I.

Though neither Milosevic nor Pinochet faces immediate trial, that each has been charged is a major step toward limiting impunity for leaders whose policies have brought about violations of international criminal law.

The message to similar perpetrators is that they can no longer rely on their positions to escape accountability.

The historic dominance of realpolitik over the world’s justice expectations has long impeded the establishment of an independent and effective international criminal-justice system. Realpolitik proponents still believe in Nicolo Machiavelli’s teachings that the end justifies the means, and politics is the art of possible compromise. They regard justice as another tool for attaining political outcomes. Justice advocates, however, reject this and rely on a concept best expressed in the Talmud: There is no peace without justice, no justice without truth and, ultimately, all three are one.

Contrary to some beliefs, there is no incompatibility between achieving political settlements designed to end armed conflicts and the pursuit of justice. The former is necessary, but it must be accompanied by the latter if a settlement is to ripen into reconciliation.

Perpetrators of large-scale victimization are frequently the same persons with whom political settlements are necessary. Unless defeated militarily, they usually can end the killings and destruction they instigate. They also have a direct stake in making sure they won’t be held accountable. Thus, negotiating counterparts, no matter how well intentioned, feel compelled to barter justice for a cease-fire or some interim political settlement that will halt the conflict and victimization. In so doing, they compromise justice.

What gives political leaders the prerogative to compromise the rights of victims and society to know the truth? Who can forego the deterrent that effective prosecutions can have on potential violators? Political leaders who negotiate settlements do not have the right to offer perpetrators impunity for such evils as genocide, torture and slavery.

Such international crimes do not disappear with a political settlement. Instead, they live on in the memory of the victimized and their future generations, leading to calls of revenge for past injustices. This is one reason why political settlements without justice and truth are so fragile and the peace they herald so precarious.

The basic goals of international criminal justice are to provide relative justice and bring about some form of prevention and deterrence. Impunity is the antithesis of both goals. Thus, impunity for perpetrators of international crimes must be rejected on moral as well as policy grounds. Accountability is vital.

The goals of accountability are peace, justice and truth, with the assumption that a proper balance among retributive, distributive and compensatory justice will achieve all three. This can be accomplished by: 1) international criminal prosecutions of major offenders; 2) national criminal prosecution of perpetrators; 3) selective, symbolic prosecutions at international or national levels; 4) establishment of truth commissions; 5) victim redress, including compensation, rehabilitation and public apology; 6) lustration (removal from office, prevention from holding office); and 7) preventive measures, such as education and public awareness, passing appropriate legislation.

Different conflicts require different approaches to accountability. In many cases, a combination of more than one mechanism will be needed. However, there will always be leaders most responsible for the victimization, and for them, only retributive justice is appropriate. Whether done through national or international criminal processes depends on the situation, though international criminal justice is most appropriate for major crimes, including genocide, crimes against humanity and war crimes because of their wide symbolic, educational and deterring effects.

The world community began its modern efforts after World War I, but with dismal results. World War II brought about the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East at Tokyo. Both prosecuted major criminals on three charges: crimes against peace, war crimes and crimes against humanity. The allies also prosecuted, in their respective zones of occupation, many charged with war crimes and crimes against humanity. However, the vanquished were tried by the victors. Though some among the victors had committed war crimes, they were never held accountable. This selectivity tarnished justice. For example, the London Charter establishing the Nuremberg tribunal was signed on Aug. 8, 1945, while the atomic bomb was unleashed on innocent Japanese civilians in Hiroshima on Aug. 6, and in Nagasaki, on Aug. 9, killing some 250,000 people. Justice cannot be selective.

Because of the Cold War, since the end of World War II, international criminal justice efforts were stalled. Yet, between 1946-1998, some 250 conflicts took place around the world. Along with the victimization by tyrannical regimes, they resulted in from 70 million to 170 million deaths, twice the number of estimated casualties from World Wars I and II. In most of these cases, leaders who made the decisions and senior commanders who carried them out benefited from impunity. Few individual prosecutions took place.

Then, in 1992, the U.N. Security Council established the Commission of Experts to investigate war crimes in former Yugoslavia, giving it the broadest investigatory mandate since Nuremberg. The commission, in spite of a lack of resources, collected overwhelming data on criminality. Its report served as a foundation for the council’s decision, in 1993, to establish the International Criminal Tribunal for former Yugoslavia. In 1994, the council did the same with the International Criminal Tribunal for Rwanda. Since then, both tribunals have become important precedents for international criminal justice.

There is no doubt that these tribunals could have been more effective, but the blame should not be laid at their doorsteps. Since they are both part of the United Nations, that organization’s cumbersome bureaucratic and financial rules made them less effective. Also, these institutions started from scratch, and no system of justice in history achieved maximum results from its inception. In the case of the ICTY, there has also been a lack of political will to apprehend indicted criminals. The failure of NATO forces in Bosnia to arrest such major indicted leaders as Radovan Karadzic and Gen. Ratko Mladic is a glaring examples.

International criminal justice has never been free of political manipulation. In fact, realpoliticians use international criminal justice as a barter in the course of political negotiations. When Milosevic was cooperating in the Dayton Accords of 1995, nothing happened to him--though he was responsible for crimes against humanity and war crimes in Croatia and Bosnia between 1991-1994. Whether he was promised immunity or given it de facto is something history will have to decide. Becoming a recidivist in Kosovo and a recalcitrant participant in bringing an end to that conflict, he was promptly indicted for crimes against humanity and war crimes in Kosovo in May. The failure, until now, to indict him and other senior officials in the government and the military structure of Yugoslavia for 1991-1994 puzzled many. The same happened to Gen. Raoul Cedras of Haiti, when he agreed to leave the island with impunity and a golden parachute in exchange for his troops not resisting U.S. forces. Conversely, the unexpected sometimes happens and a Pinochet gets arrested.

July 17, 1998, the world witnessed a major development with the establishment of an International Criminal Court in Rome. Even when it is ratified by 60 states, the ICC will not be an ideal institution, since it will not have the capacity for direct enforcement, but will have to rely on ratifying states and other cooperating states to enforce its judgments. International law is still largely consensual--but international civil society and world public opinion are gaining strength and governments can no longer ignore their legitimate expectations. Faulty, and even selective as international criminal justice may be, this is progress.

Governments can no longer ignore the world community’s rejection of impunity. They can delay or attempt to manipulate justice, but cannot prevent it entirely. The progress toward international criminal justice is inexorable, though, for a long time, it will leave much to be desired. During this evolution, people will look at international criminal justice as they look at their national justice systems, and ask: Is the glass half empty or half full? To this writer, it is half full and filling.

If enough of us believe that, and work at it, we can make it happen faster. We will need perseverance, patience and forbearance until we can make it work effectively, impartially and fairly. If we fail to do so, we will be condemned to repeat the mistakes of the past. The world will then suffer a great deal more of the same victimization we have witnessed in the past and that, in turn, will affect the peace and security of humankind.

The United States must take the lead in bringing about a politically independent, impartial and effective system of international criminal justice. In so doing, it will not only be a mighty power, it will become a great one.