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International Justice: Outlaws and Courtesans

Courtesans? Citizens? My cousin the criminologist tells me that, here at home, laws are only lightly enforced. If laws were strictly enforced, we would all be in the poorhouse or in jail. That would include the judges, I guess. An interesting scenario. A self-fulfilling society?

Internationally we are a long way from that state of tacit accommodation. Going global requires international law, and we have lots of it. International "civil" law, regulating such things as travel and communications, is generally accepted; although Seattle/WTO (November 1999) tells us that treaty law applied to trade is by no means embraced by all. International criminal law, largely a product of the twentieth century, is much more controversial, encompassing as it does human rights and humanitarian law. Many treaties and conventions, defining crimes, have been formally approved by most states; but their interpretation and enforcement are in fragile process. This is especially true of the laws of war-- the Geneva Conventions. When it comes to human rights, I guess the distinction between "civil" and "criminal" is not very clear or useful. In the UN system, we have the International Court of Justice (ICJ) in the Hague to adjudicate disputes between states. For war crimes, the Security Council created the ad hoc Tribunal on ex-Yugoslavia, subsequently extended to Rwanda. And now, since July 1998, a permanent International Criminal Court has been approved, and its realization is in the works. (Each treaty or convention has its own arrangement for following up implementation-- "enforcement"-- under surveillance of adhering governments.) Supra-national administration of criminal law is new to this planet. Without some arrangements for enforcement, these laws would be a joke.

So now we have war crimes tribunals submitting reports to the Assembly and Security Council, for Yugoslavia the sixth annual report, for Rwanda the fourth. That these Tribunals in just a few years have taken shape and are working is a heroic achievement: starting from scratch in every sense-- financially, physically, structurally, conceptually, procedurally, humanly-- they are a model, embryonic if you like, of fair administration of international criminal law, defense of the accused, protection of witnesses, substantiation of evidence. Unlike the ICJ, these Tribunals prosecute individuals, war criminals. Having no police force of their own, they rely on governments or, in ex-Yugoslavia, the international military, to arrest and deliver the accused. In old Yugoslavia, governments have naturally been reluctant to yield up their own (will indicted Milosovic arrest himself?); and until recently even the international military have done little (politics outside the courtroom). Rwanda's neighbours have been more cooperative. Even in established national courts, serious criminal trials take time. In these Tribunals where improvisation means codification, where every move must be seen as legally correct and unbiased, the whole process must have enough time. These fledgling courts were not that efficient: both are improving but need more professional people. The President of the Tribunal for Yugoslavia, Gabrielle Kirk McDonald (a veteran of U.S. civil rights, and about to retire) spoke at the Assembly: she said it was essential to bring the leaders and tormentors to trial so as to serve the process of reconciliation and peace. For Rwanda, while very few had been tried, the President of that Tribunal, Navanithen Pillay (another distinguished woman), pointed out to the Assembly that its first four judgments included a former Prime Minister, a Mayor and a senior militia leader. The Tribunal made legal history by rendering a first-ever international conviction on genocide. At the Security Council in November, the recently appointed senior Prosecutor, Carla Del Ponte (responsible for Yugoslavia and Rwanda), stressed the importance of Council support so as to make governments deliver the accused.

I take heart in the fact that, in the Assembly, all regions and factions praised the work of the Tribunals. The exceptions were the subject countries, especially Rwanda, whose delegate said that the Tribunal was an abysmal failure because it was so slow and had caught so few. In Rwanda, he said, more than 20,000 had been indicted, nearly 18,000 had pleaded guilty, nearly 2,000 had been tried, and 5,760 released. He said that low-level offenders will be arraigned in public trials according to a traditional system of communal justice. Dare we hope that this will contribute to reconciliation?

An expert group, mandated by the Assembly, has just now (24 January 2000) released its review of the two Tribunals. Conclusion: both have done a pretty good job, considering what they were up against. They need to speed things up, says this study; and suggestions are made to make that happen. The experts also think that each Tribunal should have its own Prosecutor, rather than just one for both.

Against the tragic implosions of Yugoslavia and Rwanda, and the tragic international failure to halt the killing, these Tribunals stand out as a noble experiment. The summary preface to the Yugoslav Tribunal's report reminds us that "the Tribunal has laid the foundation for the establishment of a practical and permanent system of international criminal justice." The concluding section of the Rwanda report notes that Tribunal's contribution to international criminal justice: "These judgments, and the ongoing work of the Tribunal, represent a collective effort on behalf of the international community to bring justice and truth to the people of Rwanda," contributing to accountability for crimes, and to peace and reconciliation in that sad country. For Tribunal staff, what a painful burden it must be to spend day after day, year after year, with these nightmares.

We must not forget Cambodia and its dreadful sui-genocide. Rough Prime Minister Hun Sen seems ready enough to accommodate the Khmer Rouge monsters, with a façade trial under his control. It remains to be seen whether any international presence can be inserted, at least to expose the affair.

Moving on to the permanent International Criminal Court (ICC), adopted in Rome on 17 July 1998, the good news is that, as of mid-January 2000, 92 governments had signed up and 6 had "ratified" (confirmed formal adherence). Things are going better than feared: it should not be long before 60 ratifications bring the ICC into existence. The Rome Statute has 13 parts and 128 articles, but still needs detailed understanding and agreement on "Elements of Crime" and "rules of procedure and evidence." To tie up these loose ends by 30 June 2000, a Preparatory Commission (Prep Com) has already met three times, with two more meetings this spring. I heard just enough of the Prep Com last December to marvel at lawyers' need to get it exactly clear, to see around corners, no stone unturned. I am told that the 30 June deadline will be met. Still undefined is the crime of aggression (infringing on the Security Council) and this will likely be resolved or deferred through the ho-hum device of a Working Group. The U.S. opposed the ICC in Rome but is active in the Prep Com. Maybe it will get enough caveats on the record to be able to join, or at least not to sabotage.

Before leaving the loosely cluttered field of international law, I should speak of terror, or terrorism, its generic term. Terrorism seems to define itself, violence actual or threatened, for political or venal ends (or both!). There were already nine anti-terrorism conventions in 1998 (concerning aircraft and air travel, marine navigation, diplomats, hostages, terrorist bombing, nuclear material); and a tenth was adopted by the Assembly in December 1999, to choke off financing of any kind of terrorism. Canada's Philippe Kirsch, helmsman at the Rome ICC conference, also steared this one. Work is proceeding on a convention to suppress nuclear terrorism, on a comprehensive anti-terrorism convention, and on a possible international conference. I understand that work is going well on a draft convention on transnational crime. A toast to Philippe, kirsch to Kirsch!