United Nations Tribunals Unfairly CriticizedSkip other details (including permanent urls, DOI, citation information)
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The main thrust of the article by Alvarez is that in respect to war crimes, "we need to take our remedies wherever we can find them." However, I would suggest that Alvarez errs in attempting to support that attractive thesis by unfairly criticizing the United Nations tribunals. The need for effective action to deter the continued commission of war crimes hardly requires emphasis. The worst excesses of war criminals in recent times are referred to by Alvarez. One should add to his list the slaughter of innocent civilians in the Democratic Republic of the Congo and in Kosovo.
Because the most powerful nations in the world lack the political will to intervene meaningfully to put a stop to the worst war crimes, the search for other forms of deterrence becomes all the more imperative. One such deterrent, I have no doubt, is effective international policing, investigation, indictment and trial of those suspected of committing egregious violations of international humanitarian law. For this reason I support the establishment of a permanent International Criminal Court.
No national justice system anywhere in the world meets all of the expectations of citizens, especially its victims of crime. International courts, however, face special challenges not encountered by national systems. For example, there is the problem of the arrest of those accused of committing international crimes. In a national system the police or even the army are available to apprehend such persons. The absence of such an international police or army means that in the case of an international court, the cooperation of national governments is essential if those accused are to be brought to justice.
When governments lack the political will to give the necessary cooperation, the international community is often poorly prepared to do anything about it. This is illustrated by the failure on the part of the relevant national authorities and NATO troops to arrest Radovan Karadzic and Ratko Mladic, who have been indicted on charges of genocide and crimes against humanity committed during the Bosnian War. The arrest warrants were issued by the United Nations War Crimes Tribunal for the former Yugoslavia in the name of the Security Council. This most regrettable failure has not resulted in any meaningful action by the Security Council or any other international body.
But the experiences of different countries in different parts of the world call for different responses by the international community. The Truth and Reconciliation Commission, which is having substantial success in my own country, South Africa, might well be inappropriate in countries like Rwanda, Cambodia or Bosnia, owing to differences in the nature of the conflicts and the manner of their resolution. Another factor contributing to the varying levels of success by the international community is that investigations are far more difficult in some countries than in others. And then there is the age-old problem of states jealously guarding their territorial and political sovereignty against international intervention of any kind.
Alvarez suggests that "without the Nuremberg-styled victors‘ justice, these tribunals will indict low level functionaries, rather than those at the top." I would submit that it is highly unlikely that there will be in the future the "victor-styled justice" of the Nuremberg trials. More and more conflicts are being resolved through negotiated settlements and these leave a delicate balance of power between the old and the new. It is often in this context that the difficult task of securing meaningful justice takes place and international tribunals must work within this reality.
Having said this, I would point out that there have been some noteworthy successes during recent efforts to bring Bosnian War criminals to trial. In fact, as of July 1997, there have been 21 indictments against 59 defendants, of whom 29 have been detained and are in custody. As already pointed out, it is regrettable that some of the persons indicted have not been detained, especially Karadzic and Mladic. It is even more regrettable because their whereabouts are known not only to the authorities in the Federal Republic of Yugoslavia and in the Republika Srpska, but also to NATO. However, the indictment of the President of Republika Srpska, a leader of the largest Bosnian Croat political party, and in Rwanda, a former Prime Minister and a Minister of Defense, indicates that international tribunals can indict and sentence not just "low level functionaries," but "those at the top."
There are a number of trials underway that further indicate the success of the tribunals. In the Bosnia trials, there have been convictions in two recent cases and the defendants have been sentenced to terms of imprisonment. An appeal is pending in the case against Dusan Ptotic and proceedings against Drazan Erdemovic have concluded with a conviction. Unfortunately, within days of the conclusion of the trial against Slavko Dokmanovic the defendant took his own life in his prison cell. A number of indictments have been issued by both tribunals in which systematic rape has been charged. In particular I would refer to the indictment brought against Dragan Gagovic and others for the rape of Muslim women in Foca, in which all the charges relate to gender-related war crimes. Also, in the September 1998 sentencing of former mayor Jean-Paul Akayesu, the Rwanda Tribunal found (for the first time in an international court) that rape may be prosecuted as a crime against humanity.
Moreover, those indicted can expect to serve the length of their sentences. The statute of the Tribunal makes it clear that a sentenced criminal is not even entitled to benefit from a national remission of sentences or paroles in the country where the sentence is being carried out without the consent of the president of the Tribunal. In considering such a situation the president is obliged by the statute to have regard to the sentences of other convicted criminals who might have been found guilty of similar crimes.
Alvarez suggests that because the UN tribunals were established by a "politicized" Security Council, "no one knows whether or not to what extent truly ‘independent‘ courts have been created." I have heard no serious allegation to the effect that either of the UN Tribunals lack independence. That they were established by a political body is no more relevant than the appointment of federal judges in the United States by a "political" President subject to the advice and consent of a "political" Senate. Alvarez‘s concern is that the Security Council might be able to "direct" either the Rwandan or Balkan tribunal "not to indict or prosecute particular holders of high government posts, whose prosecution might be detrimental to the ‘maintenance of international peace.‘" Again I would refer to the statutes governing both tribunals in which the independence of the Chief Prosecutor is entrenched. He or she may not take any instructions from any government or other body. During my term of office, no official, whether of the United Nations or any government, attempted directly or indirectly to influence any decision taken by me or by any other member of my office. I have no doubt at all that the same has been true of my successor, Justice Louise Arbour. I also have no doubt that the judges of both tribunals would publicly reject any attempt, direct or indirect, to interfere with their independence.
Alvarez refers to the trial chamber of the Yugoslavian Tribunal "requesting views concerning the scope of its enforcement powers, including whether the tribunal has the power to directly order governments or national courts to hand over evidence, or whether it needs to wait for the [Security] Council to act." This he sees as a further indication that the tribunals lack sufficient independence. But this issue was addressed in the case against Tihomir Blaskic. There a trial chamber held that indeed the tribunal has such power. The Croatian minister of defense was directed to produce certain documents. That decision was taken on appeal by the Croatian government. The Appeals Chamber reversed the decision of the trial chamber, maintaining that the Tribunal could request, but not compel, government officials to comply with its orders. Only in the face of non-compliance with such a request would it be up to the Security Council to take appropriate action.
Alternative approaches to justice, such as truth commissions and national criminal courts should not be seen as competing with international criminal courts but rather as complementing them. For the victims, justice entails a public acknowledgment that they have been wronged and the denunciation of the perpetrators. I agree with Alvarez that use should be made, in appropriate cases, of national courts and of truth commissions. South Africa provides a good example of a simultaneous use of both. Some of the worst villains of the apartheid state have been brought to trial and sentenced to long terms of imprisonment. Colonel Eugene de Kock, a former senior police officer, has been given a life sentence. The work of the Truth and Reconciliation Commission has brought to light a litany of the most heinous human rights violations, demonstrating the extent to which our society was brutalized during the apartheid years. That our country is better for the work of the Truth and Reconciliation Committee than it would have been without it cannot be doubted.
This process of making the truth public is central to the search for justice and invariably requires fair process, whether in a national or international court, tribunal or truth commission. National governments and the international community must work together to examine these various options, assess their strengths and weaknesses, and evaluate how best to achieve justice.
I fully agree with Alvarez that ad hoc war crimes tribunals established by the Security Council are not the best means of bringing war criminals to justice. In my opinion the political nature of the Security Council is relevant with regard to the conflicts in which it might decide to take such action. It did not do so with regard to the genocide in Cambodia or Iraq or in other appropriate cases in Africa and Asia. Whether war crimes should be investigated and prosecuted should not depend upon political considerations but solely on the nature of the criminal conduct alleged. It is for this reason that I so strongly support the establishment of a permanent International Criminal Court, and I am disappointed that the United States government has not supported the treaty which was accepted by 120 members of the United Nations in Rome in July 1998.
I would hasten to add, however, that UN tribunals in Yugoslavia and Rwanda have succeeded in bringing international attention not only to the terrible crimes committed in those countries but also to the need for international criminal justice. They have also considerably advanced the content and application of international humanitarian law and demonstrated that an international criminal court is capable of efficient investigations, even during a war, and is able to hold fair trials. The delays which unfortunately have been associated with both UN tribunals are a consequence of having to set up a new tribunal in each case. They are also another argument in favor of a permanent International Criminal Court.
I applaud the efforts by human rights activists who used the federal court in New York to bring very appropriate claims against Karadzic. The importance of using public forums to throw light on the commission of genocide, crimes against humanity and other serious war crimes — wherever in the world they are committed — cannot be overemphasized. I agree with Alvarez that "there are many routes to justice, deterrence and accountability." They should all be pursued with vigor.
Richard J. Goldstone is a Justice of the Constitutional Court of South Africa and one of the world‘s leading jurists in constitutional law, human rights, and war crimes. He served as chief prosecutor for the United Nations‘ International Criminal Tribunals for the former Yugoslavia and Rwanda. Goldstone delivered the William W. Bishop Lectures in International Law in October, which inaugurated the University of Michigan Law School Center for International and Comparative Law. In the last issue of the Journal , _law professor José E. Alvarez critiqued current means of securing justice for war crimes and discussed alternative methods. This is Goldstone‘s response to Alvarez‘s article,"Seeking Legal Remedies for War Crimes: International Versus National Trials." The full text of Alvarez‘s article may be found on our webpage at http://hti.umich.edu/j/jii