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Furthermore, the scarcity of the compelling evidence and effective witness testimony has been attributed as the reason for the expansion of the trial to now include Milosevic's alleged crimes in Croatia and Bosnia-previously thought unprovable. This suggests to many that the ICTY is growing more apprehensive about winning a conviction or in the least, feels world opinion of its mandate becoming increasingly eroded. However, in spite of such an optimistic view, it is undeniable that, considering the impressive record of its achievements up to April 1st, 2004, the ICTY's success by far exceeded initial expectations, with 56 accused currently in custody at the Detention Unit, 20 arrest warrants issued, 13 accused transferred to serve sentence, 7 sentences served, 27 accused at pre-trial stage, 8 accused currently at trial, 50 persons received Trial Chamber Judgement, and 27 persons have received final sentence and await transfer(24).


The hopes of many that the ad hoc criminal courts of Nuremberg and the ICTY would pave the way for an I.C.C. were fueled when 164 nations met in Rome in 1998 to finalize the "Rome Statute of the International Criminal Court," and at the end of the six-week Rome Diplomatic Conference for an International Criminal Court, on July 17, 1998, 120 countries voted in favor of the Treaty containing the Statute for an International Criminal Court, with 7 countries, namely the United States, China, Libya, Iraq, Israel, Qatar, and Yemen, voted against the Treaty. Twenty-one countries abstained(25), which, to many, this was surprising, because despite having championed the concept of an International Criminal Court for so many years, the US joined the minority of six other nations opposing the I.C.C. Statute, citing many objections as making the Court unfair and unworkable.

The rationale for the I.C.C. was that it would not only bring about peace in our troubled world, but also establish acceptable standard of behavior on an international basis that would facilitate serving justice, but that it might make war a thing of the past. This could theoretically be accomplished by acting as a deterrent for "rogue" leaders, neutralizing the dangerous ones already in existence, establishing truth, and substituting vengeance with the rule of law.

Its critics argue that despite such lofty ideals, these goals could hardly be realistically accomplished. They contend that those in power who commit the atrocities will not be held accountable for their actions by a country, in which they are in control. Also, there will be no deterrent effect without the use of an international military force(26). Additionally, because the I.C.C. has power only over individuals, they will have little influence over nations (as recently seen with the Taliban government's harboring of Osama bin Laden in Afghanistan) who sponsor and/or harbor such criminals.

History is on the side of the I.C.C.'s critics. In 1992, only two years after the creation of the ICTY, Srebrenica was targeted for "ethnic cleansing", captured by Serb forces under Milosevic's command, and resulted in the wholesale killing of seven thousand Bosnian Muslims(27). The formation of the ICTY did little to deter Milosevic from his 1999 campaign of murder and expulsion against the Kosovo Albanians(28). Also not to be
discounted is the unpredictable effect of nationalism and unrest that could easily result from an indictment by the World community of a country's leader. In effect, this could be perceived as an assault on a nation's sovereignty-no matter how unpopular the indictee might be in his own home country.


A nation's sovereignty, or its right to govern itself, is a strong basis under which it can insist that the international community could not intervene in its internal affairs(29). The failure of an international court to recognize the inherent sovereignty of a nation may not only undermine its ability to gain that nation's cooperation, but create even
greater isolation from a country already fractured by war. The potential for a tribunal discounting a nation's sovereignty is illustrated from the transcript of the Dayton Peace Accord negotiations. During its course, the possibility of the former Yugoslavia convening its own court to prosecute Milosevic and others for their alleged war crimes was not even discussed(30).

However if the World's experience with the post-World War II Nazi criminal trials at Nuremberg is to have any meaning at all, each nation must realize that they have a vested interest in recognizing the people of the World as having international rights, as well as international obligations. Nuremberg has taught us that individuals are responsible for their criminal actions, and should not be allowed to hide behind the nationalism to avoid their larger responsibilities to Mankind. As citizens of an international community we should all be held accountable for our actions when they violate the laws of humanity or threaten world peace.

Unfortunately, these lofty ideals are difficult to put into practice. Following World War II, even the defeated German government expressed their desire to try their own "war criminals"(31), but were hardly in a position to negotiate such arrangements due to a critical distinction. While the Allied Forces entered the sovereign boundaries of Germany during wartime, seizing individuals and incriminating documents to aid in their prosecution, the ICTY could not rely on military force to do so. Without such a cooperation of the former Yugoslavia, Milosevic needed only to stay within the sovereign borders of his country to avoid prosecution(32).

Indeed, many may argue, and convincingly so, that the reason Milosevic was handed over to the ICTY was not at all in recognition of the Tribunal's authority, or the desire to achieve justice. The surrendering of Milosevic took place only after the critical funding for the reconstruction of the war-torn Yugoslavia was threatened to be withheld by the world community if the ICTY's order for Milosevic's transfer was not complied with(33).

Even the succeeding Yugoslavian government engaged in the subterfuge to gain Milosevic's surrender, likely doing little to win converts to the lofty causes of the ICTY. Slobodan Milosevic surrendered to the newly installed government on the basis of their promise that he would be tried locally-not by the ICTY in The Hague. Upon his being handed over to the ICTY, a majority of Serbs interviewed did not recognize the court's legitimacy, and many felt that Milosevic's defiance of the court was appropriate(34). This sentiment was on the part of a people who strongly opposed Milosevic policies and played a major role in ousting him from office. Given this nationalistic reaction to such an unpopular man, it was difficult to see how sufficient support will be provided for the possible future transfer of other arrested indictees - the cooperation so crucial for the ICTY to succeed.


The experience of the ICTY provided many lessons that needed to be heeded in establishing a permanent international criminal court. Despite the problems that already presented themselves with the administration of the ICTY at the time, when 164 nations met in Rome in 1998 to finalize the "Rome Statute of the International Criminal Court", it incorporated several aspects that were found wanting in the formulation of the ICTY. Requiring its ratification by sixty nations in order to become effective, it contained many unresolved issues that disfavored its adoption.

In its initial proposal, the I.C.C. was slated to have one prosecutor and eighteen judges elected to nine-year terms with the authority to try war crimes, crimes against humanity, crimes of "aggression" and genocide(35). Further, the I.C.C. was to have jurisdiction over any crimes committed within the nation of any signatory to the agreement, with non-signatory nations having the option of submitting to the I.C.C.'s authority for a specified offense only. What was missing in the I.C.C. statutes that was included in the ICTY was the authority to ask that a non-signatory nation defer to their jurisdiction. Of course, counter-balancing this limitation was the broader geographical jurisdiction that an I.C.C. would have: Whereas the jurisdiction of the ICTY was only limited to crimes committed within the former Yugoslavia, the I.C.C.'s jurisdiction encompassed the entire world(36).


The salient obstacle that stood in the way of support for the I.C.C. by the United States was their demand that they have absolute veto power over any prosecution of a U.S. citizen - underscoring the volatile issue of State sovereignty. The reason for this demand was to ensure that US personnel would not be prosecuted after engaging in military activity abroad(37). Given the role the United States has taken as an international police officer, most of the countries find that this is an understandable, yet in the view of many short-sighted position for them to take, because it demonstrates the lack of confidence in the ability of the World community (via the ICC) to dispense international criminal justice fairly, and places the U.S. in the list of nations seen by them as serving their self-interests over that of the collectivity.

The question one must ask is, given the demonstrated short-comings of the ICTY, whether the I.C.C. in its present form, could do a better job prosecuting an alleged criminal such as Milosevic. While the tools given the I.C.C. to conduct their mission may be more expansive, the familiar barrier that lies in its path to possible success is still missing - the willingness of a nation to relinquish its sovereignty and to otherwise cooperate with such an international court. Lacking the ability to overcome this stumbling-block, the I.C.C. can never be the workable solution to the problem.

Nonetheless, with some minor concessions, the Rome Treaty of 1998 was finally signed by 139 nations and ratified by 75 countries(38) (well above the initial expectations) and opened for business in The Hague on July 1, 2002. In addition to the United States, also noticeably missing from participating in the court were China and Russia. So strong is the U .S.A.'s opposition to the court, it not only has adopted a legislation that authorizes the use of "all means necessary" to liberate any American citizen held by it, but also compels several countries to conclude bilateral treaties with the United States prohibiting extradition of each other's nationals to the I.C.C. and provides for the imposing of sanctions against countries that choose to extradite American citizens to the I.C.C.(39).

What emerged from the Rome Conference was an International Criminal Court with a two-track system of jurisdiction. Track One would constitute situations referred to the Court by the Security Council. This track would create binding obligations on all states to comply with orders for evidence or the surrender of indicted persons under Chapter VII of the UN Charter. This track would be enforced by Security Council imposed embargoes, the freezing of assets of leaders and their supporters, and/or by authorizing the use of force. The second track would constitute situations referred to the Court by individual countries or the ICC Prosecutor. This track would have no built in process for enforcement, but rather would rely on the bona fide cooperation of the Parties to the Court's statute. Thus, it was widely understood that the real power was in the first track.

The Court's jurisdiction is limited to crimes committed on or after July 1st, 2002 anywhere in the world and, paralleling the ICTY, can only prosecute individuals-not armies or organizations. Upon its opening, it was staffed by an interim team of four "caretakers," but had representatives appointed in early 2003 and be expanded to 400 members by that time. In an effort to gain the support of the U.S.A., the Court adopted the policies that were incorporated after negotiations during the Rome Convention.

Included in these concessions was the requirement that the Court may investigate a case only when a nation refuses to do so - and then only after a three judge panel is convinced that a nation has not acted in good faith in failing to prosecute. At the insistence of the U.S., the definition of a covered crime was also made very specific, and the court was precluded from initiating an investigation before notifying the suspect's government-upon which the government must be given six months to perform their own investigation.

Despite these efforts to appease American interests, President George W. Bush would not allow the question of ratification to reach the Senate floor without an "iron-clad" immunity for American citizens, his primary concern being the 200,000 soldiers presently stationed abroad. Richard Dicker, Director of Human Rights Watch in New York, criticized the American stance in demanding such immunity that "This would create a two-tier system of justice, one for Americans and one for the rest of the World. Major countries would not agree - this would not be a court worth having"(40).

On July 12th, 2002, in an effort to appease the United States, the United Nations agreed to provide a one year exemption for US peacekeepers from its jurisdiction. While this compromise has not resulted in the removal of U.S. opposition to the Court in its present form, it has had the limited effect of staying the U.S.'s veto(41).

It is clear that while nations want international justice, they do not seem to be prepared to pay requisite price to attain it-even prices willingly paid by many nations. The nations less likely to abide by the rules of an ICC appear to be those who have historically maintained an isolationist posture and are fundamentally distrustful of foreign nations. Others wield near autonomous and far-reaching power (such as the United States, China and Russia) and are unwilling to relinquish it. Still others don't subscribe to the notions of "justice" held by a collective body of other nations. None of these positions provides a recipe for a healthy and efficiently functioning permanent I.C.C. Thus, lacking this support it so desperately needs, the I.C.C., in its present form, appears doomed to fail. There is no telling, however, whether I.C.C., with a permanence and a jurisdiction that, unlike the ICTY's, is not subject to the limits of time or place, would not in spite of such shortfalls be, in the long run, just as successful as the ICTY, if not more.

The I.C.C. and international war crime tribunals may perhaps, to a certain extent, be able to deter conventional wars(42), war crimes and serious overt violations of Human Rights by the scoundrel bellicose heads of States(43) and tyrants, but even in such cases, only when and where the cooperation of the States concerned can be secured, failing which the felons can get away with it with complete impunity merely by remaining in the confine of their territories. Besides, other than those already expounded above, there still exist many stumbling blocks and hindrances, that may thwart their smooth and efficient functioning, which must be dealt with both in the international and domestic dimensions.

In the international dimension, the I.C.C., and any international criminal courts or tribunals in whatsoever forms, permanent and ad hoc alike, are utterly futile and powerless in the face of monstrous and fiendish crimes of terrorism, that wantonly and savagely massacre thousands of defenseless innocent civilians throughout the globe in a blind religious fanaticism, and in total disregard of any jus in bello rules, that all civilized nations observe. A profound and crucial question may be raised as to how the International Criminal Court or indeed any other forms of international criminal tribunal at all can ever handle this new menace to Mankind, when the perpetrators of the hideous crimes of terrorism could very seldom be identified let alone apprehended, because they operate under cover, wearing masks or hoods, or disguise themselves to conceal their identities, making them the invisible enemies who mingle among the crowds of civilians, waiting for the chances to strike where it hurts most, at the least expected moment, using all sorts of ruses and perfidies(44) and most horrendous means of mass destruction to ensure optimum civilian casualties and calamity, while the number of their militants keeps multiplying regularly with the constant brain-washing and incitements to hatred, amplified and propagated via their sympathizing or militant media(45) and also inadvertently by the media of the civilized World.

Especially when these indoctrinated fundamentalists are endowed with the unlimited logistic support and resources, their funds and arsenals of lethal weapons being regularly replenished by the global terrorist networks and religious fanatics across the World. They terrorize people by decapitating(46), and cold-bloodedly murdering their hostages hand-cuffed, barbarously perpetrating atrocious carnages in shopping malls of big agglomerations and well-packed public transports during rush hours(47), blowing up civilian aircrafts(48), hotels and night clubs(49) in total anonymity under pseudonyms to camouflage their traces and identities. It is the most hideous savage war of different nature from anything that Mankind has ever before encountered, which strikes the very heart of our way of life, our freedom and our rule of law: a boundless never-ending diabolic, bloody, merciless war without care for the grieves of innocent civilians, a horror that the World community can do nothing more than reiterating a leitmotif of futile verbal condemnations, which are just unheeded cries in the wilderness - a horror that the people of contemporary generations are unfortunately doomed to live with.

Part  3

(24) Cf. Key Figures of ICTY, Updated 1 April 2004.
(25) Cf. Michael P. Scharf "Results of the Rome Conference for an International Criminal Court". ASIL Insights, August 1998, p. 1.
Which is a proven fact in the case of Saddam Hussein in Iraq.
(27) Cf. Proceedings of the Rome Conference for an International Criminal Court, 1998 ASIL Insights, available at bttp://
(28) Its futility as a deterrence is even more obvious for the crimes of terrorism, which will be dealt with at a later stage.
(29) Especially when the principle of non-intervention in internal affairs of a State is endorsed expressis verbis by the U.N. Charter in its Article 2.7.
(30) supra, note #12
(31) Cambodia fosters the same stance in regard of the trial of the remaining Khmer Rouge leaders.
(32) The living proofs of the veracity of such a remark are as previously pointed out that Dario Kordic, the most senior Croat official indicted by the Tribunal, reportedly lives in a government owned apartment in Zagreb. Since his indictment, he has been seen sitting in the row behind Croatian President Franjo Tudjman at a public concert. Another Croat indicted by the Tribunal, Ivica Rajic, reportedly lived for almost a year in a hotel owned by the Croatian Defense Ministry. And that four Bosnian Serbs indicted by the Tribunal have been working openly as police officers in Prijedor and Omarska, cities indelibly linked with images of "ethnic cleansing" and also that two other Bosnian Serbs indicted by the Tribunal were working as public officials in Bosanski Samac, one as the highest ranking municipal official, and the other in the local office of Bosnian Serb state security.
(33) Even his capture was, in all likelihood, prompted by the $5 million reward offered by the Clinton Administration.
Holley, David, The Myth that is Milosevic, 2001.
(35) Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/Conf.183/9 (1998) reprinted in 37 I.L.M. 9/99 (1998).
(36) Id.
(37) Deutsch, Anthony, Permanent War Crimes Court Opposed by U.S. Opens in the Hague, San Francisco Chronicle, June 30, 2002, available at
(38) Only 60 ratifications are required for the entry into force of the Rome Statute.
(39) Id.
(40) U.S. Spoils Debut of New Global War Crimes, Reuters, June 30, 2002, available at
http ://
(41) Europe Edgy on U.S. War Court Deal,, July 13, 2002, available at
(42) Such as in the case of the Iraq's aggression against Kuwait, etc.
(43) Like in the case of Slobodan Mirosevic, etc.
(44) Even the red cross emblem has been used in terrorist attacks.
(45) Such as the Al Jazeera.
(46) Which is the common tactics of the Abu Sayyaf terrorist groups.
(47) Such as in the March 11th, 2004 Madrid train bombs that caused 200 casualties and wounded more than 1,400 civilians (BBC World, March 12th, 2004),and the September 11th, 2002 terrorist attacks on the World Trade Center Twin Towers in New York and the Pentagon in Washington D.C., that caused some 2,000 defenseless civilian casualties, etc
(48) Like blowing up an American civilian aircraft by the so-called sweet bombs at Lockerbie in Scotland, killing 259 people in the aircraft and 11 people on the ground.
(49) Like in Casablanca and Bali, etc.


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