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 PROPOSAL FOR AN I.C.C. BEARS FRUIT
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
THE OBSTACLE OF STATE SOVEREIGNTY
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
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
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
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 ADVENT OF THE I.C.C.
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 SHORTCOMINGS OF THE I.C.C.
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.
(24) Cf. Key Figures of ICTY, Updated 1 April
(25) Cf. Michael P. Scharf "Results of
the Rome Conference for an International Criminal Court". ASIL
Insights, August 1998, p. 1.
(26) Which is a proven fact in the case
of Saddam Hussein in Iraq.
Cf. Proceedings of the Rome Conference for an International Criminal
Court, 1998 ASIL Insights, available at bttp://www.asil.org
(28) Its futility as a deterrence is even more
obvious for the crimes of terrorism, which will be dealt with at a later
(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.
(34) Holley, David, The Myth that is
(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).
(37) Deutsch, Anthony, Permanent War Crimes
Court Opposed by U.S. Opens in the Hague, San Francisco Chronicle, June
30, 2002, available at http://www.sfgate.com
(38) Only 60 ratifications are required for
the entry into force of the Rome Statute.
(40) U.S. Spoils Debut of New Global War Crimes,
Reuters, June 30, 2002, available at
(41) Europe Edgy on U.S. War Court Deal, Cnn.com/WORLD,
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,
(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,
(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.