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The
Arrest of Milosevic Changes the World
By JONATHAN
POWER
April 4, 2001
LONDON - The arrest of the greatest European war
criminal since Hitler could change the world. Significant
though the arrest of Pinochet was in London two and a
half years ago, in comparison that was dealing with a
dead duck. This arrest is next to catching the bird on
the wing. Milosevic only lost power a matter of months
ago. His party still wields much influence in Serbian
affairs. Yet the pressure to bring him to trail before
the UN-created ad hoc criminal court for Yugoslavia has
been strong enough to precipitate his arrest by the
Serbian authorities.
It is only now a question of time, although he may
first stand trial in his home country on lesser charges,
before he is arraigned before the international tribunal
on a charge of genocide. For some time now the so-called
Pinochet effect has been at play - encouraging
authorities in many parts of the world to call to account
those accused of past war crimes. But now with
Milosevic's arrest we are likely to see the pursuit of
those still in the political saddle, and currently
engaged in committing crimes against humanity.
Ironically, it is this very consequence that puts the
wind up the Bush Administration.
Washington wants to pick and chose where it will
deploy the weapon of a war crimes tribunal. But an
International Criminal Court which, thanks to President
Bill Clinton, the U.S. has now voted for, will soon be
able to deploy its legal muscle anywhere in the world. In
contrast, the ad hoc courts, first created in 1993 with
the court for ex-Yugoslavia and followed by courts for
Rwanda and Sierra Leone, are more controllable, with
their country-specific mandates.
They are not loose cannons on the deck that may fire
one day - who knows? - in the direction of the United
States itself. Indeed, the Yugoslavia court has been
difficult enough to keep on course with a group of
academics persuading its chief prosecutor, Carla Del
Ponte, to investigate whether the Nato bombing of
Belgrade two years ago was a criminal offence. In the end
Mrs Del Ponte decided there was no case to pursue and the
matter was dropped, much to the chagrin of Amnesty
International, Human Rights Watch and many other human
rights activists.
Thus Washington has made it rather clear that despite
Clinton's decision to back the creation of the
International Criminal Court this administration has no
intention of ratifying the treaty and will not become an
active party to its decisions and deliberations.
But this is a rather dangerous position for the U.S.
to be in. Although the court is not yet established and
operational - it cannot be until 60 countries have
ratified the treaty- within a couple of years it will be.
(All the U.S.'s Nato allies are expected to ratify it.)
Then the U.S. will confront the painful decision: is it
be better to be inside the tent, with an important say in
picking the judges, prosecutors and other staff, or being
outside whining and complaining about its decisions, some
of which it may welcome, say the prosecution of Saddam
Hussein and some of which it may hate, say the
prosecution of General Rios Montt of Guatemala, with whom
the Reagan Administration had a close relationship.(In
fact the court can't work retrospectively.)
Of course, there is in theory the danger that the
Court could train its guns on the U.S. in the course of
some future war. But Washington has to be sensible about
this. First, the Court, as the British Ministry of
Defence has just made clear in a briefing, would not
remove jurisdiction from national courts and, moreover,
the international court can only act if there are no
national prosecutions in the country of the accused. The
defence ministry observed that the British authorities
themselves would feel legally bound to prosecute any of
its soldiers who allegedly committed war crimes, since
rules of engagement are routinely drawn up for British
forces, in consultation with British lawyers, to ensure
actions taken under them would accord with national and
international law. International law is very clear on
what is a war crime and what is not.
Certainly, at the present time, going to war is not an
illegal act. But London has decided, belatedly perhaps -
one has to go no further back than "Bloody Sunday" in
Northern Ireland - that firing on innocent protestors, or
using torture or savaging civilians en masse is no longer
an acceptable tool of war.
Has Washington thought through the consequences of
abstention? If there is a future Milosevic, there can be
no more ad hoc courts once a central court is up and
working. Thus if the International Criminal Court doesn't
act nobody will and Washington will find that it has lost
a weapon of law it has come to value. We will be back to
where we came in with future Milosevics having nothing to
fear.
I can be reached by phone +44
7785 351172 and e-mail: JonatPower@aol.com
Copyright © 2001 By
JONATHAN POWER
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