Who will try the mass murderers?

The war criminals of the Balkans are on borrowed time as the tribunal in The Hague brings them to trial. But efforts to ratify a full international court face tough obstacles
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The Independent Online

A defiant Slobodan Milosevic glowering from the dock at the war crimes tribunal in The Hague last month was a striking but ambivalent image for the global justice movement. No doubt it was – as the chief prosecutor Carla del Ponte said – an "important milestone for international justice". But del Ponte pointed out that Milosevic's 12-minute court appearance was only the beginning. A conviction is a long way off (if it comes at all), and the creation of a permanent international court to put other war criminals on trial is a slow process.

Meanwhile, the work of the International Criminal Tribunal for the Former Yugoslavia (ICTY) gathers momentum. Earlier this month the court handed down a 46-year sentence to the Bosnian Serb general Radislav Krstic for perhaps the most shocking episode of the Balkan war; the massacre at Srebrenica, where thousands died in the United Nations safe haven. The day after this sentence, three Bosnian Muslims were arrested, accused of war crimes.

Geoffrey Robertson QC sees the trial as the first major test of a new era of human rights law. "Can the fledgling system of international justice cope with a Milosevic prosecution?" he asks.

To illustrate the uncertainty of this issue, no sooner had one dictator been hauled before the courts than another international pariah, General Augusto Pinochet, appeared to slip finally beyond the reach of the law. Campaigners decried the Chilean court's decision to abandon legal action because of General Pinochet's ill health as "a defeat for justice".

But Geoffrey Bindman, the solicitor who represented Amnesty International and other human rights groups in the Pinochet hearings in the UK, believes that the warning the four-year Pinochet pursuit gives to others is more important than whether or not the old dictator is imprisoned. "It has brought about a change in the political climate in that it now seems possible to contemplate dictators, and people guilty of crimes on a massive scale, being brought to justice," Bindman says.

Robertson expresses little surprise that the ill-health of an 85-year-old prevented him from being tried. "The moral is, we have to act more quickly in relation to other Pinochets and future Pinochets," he says.

It has been more than three years since world states gathered in Rome to vote for the creation of a permanent International Criminal Court (ICC) to try perpetrators for the "worst crimes against humanity". So far, 36 countries have ratified the statute, which requires 60 countries to back it before a court becomes a reality. Optimists reckon that threshold could be reached next year.

"We mustn't let this opportunity pass us by, but the problem is that an ICC is only as good as the countries agreeing to it," says Michael Caplan, a partner at City firm Kingsley Napley, who represented General Pinochet in the extradition proceedings.

The idea of an ICC raises uncomfortable questions for the international community. Canada tried to refer the war in Chechnya to the UN Security Council, but was vetoed by China and Russia. Could Boris Yeltsin be indicted by the ICC? What would an international court do with a complaint against the former US president George Bush arising out of the Gulf War in 1991?

China and Russia have not signed the treaty. Bill Clinton committed the US to it on New Year's Eve in the dying moments of his presidency, but it looks unlikely that an isolationist Bush administration will be quick to ratify. Senator Jesse Helms was furious at the last-minute sign-up; he immediately pledged to "protect America's fighting men and women" from "this international kangaroo court".

The American Service Members Protection Bill was introduced into Congress in May. The legislation's "ostensible purpose" is to ensure that the US did not co-operate with the ICC until it ratified the treaty, says Bruce Broomhall, the director of international justice for the New York-based Lawyers Committee for Human Rights. "But it went much further than that in punishing those countries that do ratify," he notes, adding that the legislation would not sanction US involvement in peace-keeping operations without an "iron-clad" UN guarantee that soldiers would be exempt from ICC jurisdiction.

Broomhall hopes a successful Milosevic prosecution will win over the sceptics. Nobody envisaged, when the tribunal was established in 1993, that it would indict Milosevic for the deaths of civilians in Kosovo six years later. "It was only because the foundation was there that they could do that," he says. "You need those foundations in place permanently, and that is what the ICC will provide. The US can see the rationale in that."

The prosecution of the former Serb leader is set to be the ICTY's greatest test. According to Geoffrey Robertson, it is the first prosecution of a head of state for atrocities committed by his troops under international law. The war crime trials of Nazi leaders at Nuremberg were "not strictly the work of an international court", he points out, but of a "court of victors".

The challenge for the tribunal is to remain patently fair in the face of extreme emotions. "Milosevic has been demonised in the West as enemies invariably are," Robertson says. "But an international court has to presume innocence and find him guilty only if his guilt is established beyond reasonable doubt."

Milosevic's first appearance before the tribunal amounted to an attack on its legality. "I consider this tribunal a false tribunal and the indictments false indictments," he said. According to Morten Bergsmo, a legal adviser at the office of prosecution at the tribunal, this is old territory. "Those challenges were thoroughly reviewed at the trial, both at chamber level and by appeal," he reckons. "The decision by the appeals chamber sets a solid precedent which will be difficult to penetrate."

Another line of attack will be to undermine the credibility of judges drawn from Nato countries. Geoffrey Nice QC, head of chambers at One Paper Gardens, was an attorney in the office of the prosecutor at The Hague for three years until Christmas last year. The barrister believes that, in a truly international court, its judges are beyond national bias. "Once you allow some form of judge-shopping, then it will never stop, and you can realistically expect that it will be extended to the ICC as well," he argues. "What we have to establish as a matter of principle is that an international court and its members are to be treated as free of national prejudice."

The job for the prosecutors is to establish "command responsibility" linking the action, or inaction, of a political leader in office to the bodies in the mass graves. Nice prosecuted Dario Kordic, the Bosnian Croat political leader and the first senior politician to be convicted for war crimes, who was jailed for 25 years in December. "A military man can never deny that there were orders because they know that it's always going to be in their interest not to do so," the barrister says. "But there's no actual need for politicians to keep orders and sometimes they are careful to not have them or to lose them."

That was a problem Geoffrey Robertson encountered when conducting the trial of Hastings Banda, the dictator who ruled Malawi for 30 years. He was charged with the murder in 1983 of three cabinet ministers and an MP. But the prosecution did not have evidence that he had command of the killing – "mainly because he had killed those people who had given the orders to [kill]," the silk adds.

"Maybe, until we get a better international police force and more co-operation between countries, people like Milosevic are going to have to be acquitted sometimes," Robertson says. "If there is a conviction without sufficient evidence, that will make a joke of international justice."