International lawyers court injustice
International lawyers court injustice
By V.M. Raguz and Barbara Novosel
Mar. 27, 2003
The International Criminal Court (ICC) was inaugurated March 11th with the swearing in of its 18 judges. Israel does not recognize the ICC, and rightfully so.
In fact, given the latest developments in international criminal law and practice, all responsible states, even if they are signatories of the ICC, will follow the Israeli lead if found in similar situations.
The precedents at the precursor to the ICC, the International Criminal Tribunal for the former Yugoslavia, the ICTY, will need to be substantially altered before international criminal law and courts can be viewed as credible institutions.
The majority of supporters of international tribunals are universal justice enthusiasts probably like the writers of this article a decade ago, when they were helping the Organization of Islamic Conference draft the first paper submitted to the United Nations on the establishment of the ICTY.
Enthusiasm often gives away to reality. Having closely followed the work of the ICTY or practiced before it, our enthusiasm has given way not only to reality, but also to deep disappointment.
The ICTY has established law and procedure, employed witnesses and evidence, and designed an appeals process of a type and in ways not seen in any national jurisdiction of the democratic world. Much of the blame lies not with the ICTY, but with its founder, the United Nations Security Council, that has refused to seriously review its work since its inception nine years ago.
The ICTY has thus operated in a vacuum, serving the interests of its prosecutors, disregarding the interests of universal justice.
The peoples in the Balkans have also been shortchanged, because the ICTY was to have been the primary vehicle for reconciliation. Because of its actions and decisions, the ICTY's credibility has been reduced to the lowest levels.
War criminals like Slobodan Milosevic and Vojislav Seselj now see it as a stage where they can become heroes, immortalized by large segments of their countrymen. Others, like fugitive Ante Gotovina, see it as a hanging court that shackles innocent lives.
Policy failures notwithstanding, the ICTY is actually weakest on the issues of substantive law it created. At its founding in May 1993, the ICTY officials and future judges were instructed by the UN secretary-general and members of the Security Council to carry out their duties within existing international law.
So much for a court taking cue from its legislature. The ICTY has created law that is practiced nowhere else.
For example, at the time the crimes in the Balkans were committed and the ICTY was founded, the standing law said that crimes against humanity involved attacks against civilian population that must be both systematic and widespread. The Hague prosecution insisted that "and" should be "or," so that in proving this serious charge it would need to prove only one element.
Moreover, the court refused to design a legal test on either notion. Thus, in an extreme case, this could result in someone being convicted of a crime against humanity if there was a plan to kill one civilian during an attack, or if a number of civilians were killed but no premeditated plan existed.
This drastic change in international criminal law was effected by changing a three-letter connector.
ONE MAY be surprised, but just about any action by the Israeli army that results in civilian deaths would qualify as a crime against humanity. Neither will this reality escape the NGOs and other international humanitarian law enthusiasts, who will pursue lawsuits against the premiers of the UK and Spain in particular for their leading roles in the intervention against Iraq.
The ICTY made it possible for anyone with superior status civilian or military to be convicted under command responsibility for any crime if he knew or had reason to know that a subordinate had committed crimes, or if he failed to take measures to prevent such acts, or punish the perpetrators.
For example, a civilian defendant's conviction of crimes against humanity in a particular area was based solely on an order from a military commander to take a village. The commander claimed in the order that the civilian leaders had been informed about "everything." The court found this sufficient proof that the defendant had necessary knowledge.
It is difficult to imagine a case where the ICTY would not find necessary knowledge. And it is almost certain that based on this precedent, the Belgian high court or any other could convict Ariel Sharon or any other senior Israeli official for crimes against humanity related to the Sabra and Shatilla massacres.
Another drastic development in the law on crimes against humanity is the ICTY's definition of "civilian population." It has adopted a wide definition, so if the target is predominantly civilian, the attack it not permissible, which in itself appears acceptable.
However, in practice, the ICTY has in effect ruled that if there is shelling coming from a 50-resident building because of the presence of a mortar and a 40-person armed unit, it cannot be attacked.
Similarly, if these 40 soldiers are alone in the building and they abandon arms, even unbeknownst to the attacker, they are considered civilian. One can just imagine the range of abuses in modern wars, such as the one on the streets of Israel, which such law promotes.
As to the procedure, it is an accepted fact now that there is no guarantee of speedy proceedings at the ICTY. Defendants wait for years to have their trials commence. The trials and appeals take a few more years.
One middle-ranking officer, Tihomir Blaskic, has been imprisoned over six years already, and his appeal is yet to begin. Once on trial the defendant is at a huge disadvantage, unless he is wealthy like Milosevic, since the ICTY allocates almost all of its funds to the prosecution.
Many trials have turned into secret proceedings, because key witnesses are often heard in camera. The oral testimonies are full of hearsay evidence, acceptable at the ICTY.
Another injustice to the rules of evidence used by today's democracies is the practice at the tribunal that allows newspaper articles, unsigned documents and copied documents as evidence. The obligation to provide exculpatory evidence seems not even to be a theoretical issue with the prosecutors.
Finally, there is the fundamental issue of the appeals process. Both the trial and appellate judges are judges of one institution, contrary to the practice in modern democracies, where the trial court is separate from the appeal instances. The trial judges regularly appear as appellate judges in closely related or effectively the same cases.
The ICC has crafted an improved appeals process. It has separate trial and appeal chambers, and the judges cannot serve in both. But this is just one small step in improving the international criminal law, and restoring its credibility. That credibility will be crucial for the Arab world in particular, when Saddam Hussein and his immediate subordinates are eventually tried there.
V.M. Raguz was ambassador of Bosnia and Herzegovina to the EU and NATO in 1998-2000. Barbara Novosel practiced before the Tribunal on the defense side for two years.
This article can also be read at http://www.jpost.com/servlet/Satellite?pagename=JPost/A/JPArticle/ShowFull&cid=1048678851540