CANBERRA – The old saying about the importance of justice appearing to be done as well as being done is perhaps even more relevant to international than national politics.
This is so because we operate in a world order in which the institutions of international criminal justice have been set up well in advance of any signs of the other two branches of world government, namely a parliament and an executive. Thus there is less of a distance separating judicial activity from raw politics in world affairs than within countries.
With the recent killing of Osama bin Laden in Abbottabad, Pakistan, we now know that he and his companions were unarmed when shot by U.S. SEALS. As he was never tried and convicted in any court of law, it is difficult to argue that justice was done. Vengeance, yes, but not justice.
However, given the totality of the historical record and evidence, the scale and gravity of the 9/11 infamy, and the need for emotional closure by the deeply traumatized American people, it is just as difficult to contest the proposition that justice has been seen to be done.
Weighing up the two claims — of justice appearing to be done despite an objective assessment to the contrary — we would be justified in inferring that in this case perceptions matter more than reality.
What if the same equation holds with Ratko Mladic, but in reverse? What if justice will be done, but will not appear to be done by the one group that matters most, namely the Serbs.
The first part is easy to establish. The Srebrenica massacre in 1995, in which 7,500 Bosnian Muslim men and boys were slaughtered, was the worst single atrocity in Europe since World War II. Not all the detergents of the world will wash away the stain of U.N. complicity in the mass murder. There is massive evidence placing Mladic at the center of that to establish direct command responsibility.
In any case, all this will be tested at the ad hoc International Criminal Tribunal for Former Yugoslavia (ICTY) at the Hague. Its proceedings demonstrate high standards of fairness and its verdicts have been exciting developments in the extension, deepening and broadening of international humanitarian law and international criminal justice.
If anything, the court bent so far backwards to accommodate the late president of Serbia and Yugoslavia Slobodan Milosevic that many felt cheated by his death: he escaped conviction. On the other hand, since to be free and fair a trial must always include the possibility of a not-guilty verdict, we may just as well conclude that Milosevic died without being able to clear his name and establish his innocence.
We should not underestimate the significance of this progressive development. There was enough substance to an old joke to make it a bitter truth for far too many victims: kill one man, you will be sent to trial for murder. Kill 20, you will be sent to an insane asylum. Kill 20,000, you will be sent to Geneva for U.N. peace negotiations.
So to have Mladic arrested, taken to The Hague and tried by the ICTY marks a continuation of the progressive trend in international criminal justice that has seen a significant claw-back of sovereign impunity in practice as well as in theory.
The problematic element in this comes from the fact that while all this is being done in the name of universal justice — under the principle of international humanitarian law known as universal jurisdiction, where jurisdiction is determined not by where a crime was committed but by the nature of the crime — in reality some countries are more equal than others in the international criminal justice system currently in place.
Far from being a disinterested neutral mediator or adjudicator, NATO was one of the parties in the Balkans war. This has a twofold relevance to the upcoming Mladic trial. First, the ICTY is sited in a NATO country, was set up by the U.N. Security Council in which NATO countries are disproportionately dominant and its expenses are mainly paid by them. The indictment of Milosevic in the middle of the war, on the basis of evidence supplied by NATO, meant that tribunals had progressed from being victors’ justice after the war into an instrument for ensuring and accelerating victory during war. The enforcement of the tribunal’s indictment of Milosevic was also totally dependent on the same NATO powers.
Second, no NATO general or politician has ever been prosecuted by the ICTY. The belief that NATO commanders and leaders cannot commit war crimes is neither congruent with the facts nor with others’ perceptions of some of their acts in the midst of wars. Prosecutorial decisions are based on the national characteristics of the accused, not on objective assessments of the evidence on the use of cluster bombs, wanton destruction of property, and intentional targeting of civilian infrastructure that killed civilians.
In Serbian eyes, the supposedly independent ICTY prosecutes only those whom Washington wants prosecuted. During the war, Washington used the threat of ICTY prosecution to secure compliance from political actors in the Balkans. Since the war Europe has used the carrot of EU membership to secure Belgrade’s cooperation in capturing indicted suspects for trial at The Hague.
In an appearance before the U.N. Security Council on Jan. 20, 2000, the late U.S. Sen. Jesse Helms declared emphatically that “No U.N. institution — not the Security Council, not the Yugoslav tribunal, not a future ICC — is competent to judge the foreign policy and national security decisions of the United States.”
So long as Americans believe that they are above the law and the institutions of international criminal justice pander to that belief, the selective justice delivered by them will lack universal legitimacy.
That being so, many Serbs will continue to disclaim collective political responsibility for the atrocities committed in their name.
Ramesh Thakur is a professor of international relations, Australian National University and an adjunct professor, Institute for Ethics, Governance and Law, Griffith University.
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