War Crime Justice: Fact or Farce?

Aug 26, 2001

"If certain acts and violations of treaties are crimes, they are crimes whether the United States does them or whether Germany does them. We are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."

-- US Supreme Court Judge Robert Jackson, speaking at the Nuremburg War-Crimes Tribunal

These are heady times for war-crimes courts, but are the trials actually effective? On the surface, yes. Former Rwandan officials are being tried in Tanzania, and Cambodia is preparing a tribunal to finally address the atrocities of the Pol Pot years. Slobodan Milosevic languishes at The Hague, unceremoniously handed over by the Serb government (in return for an aid package), while The International Criminal Tribunal for the Former Yugoslavia (ICTY) just convicted fellow Serb Radislav Krstic for genocide. Meanwhile, the mainstream press is busy suggesting new tribunal candidates such as Newsweek's latest offering (August 20 "Why Not Saddam?") which questions why "The Butcher of Baghdad" is not in the docks with Milosevic.

Heady times indeed, but cracks in the war-crime tribunal surface are showing. Under pressure to achieve ethnic balance in prosecuting non-Serbs, the ICTY has set its sites on Croat Commander Ante Gotovina, accused of atrocities committed in the 1995 "Operation Storm," which left 150 Serbs dead and 200,000 homeless. The only problem is that it is common knowledge, both in Croatia and the United States, that Gotovina was working directly with the CIA the whole time: so if he is guilty then so are they. Gotovina's lawyer has argued, "The information the United States possesses is relevant to establishing General Gotovina's innocence," and he intends to call American military heads to the stand to testify.

Meanwhile, NATO has been accused of war crimes for its 1999 bombing campaign against Yugoslavia. Carla Del Ponte, chief prosecutor at the ICTY (which is so controlled by US interests that its former presiding judge referred to Madeline Albright as the court's "mother") rejected the option of opening an inquiry into NATO's role, saying that she was "very satisfied" there had been no targeting of civilians or other illegal activity by NATO during the 78-day assault.

A parallel but independent and unofficial "European Tribunal" held in Berlin last June, however, came to a very different conclusion. Statements from numerous NATO officials were quoted, proving NATO's "third stage" strategy of targeting civilians to pressure them to rise against their own government. The bombing of the Belgrade Radio Television Serbia Studios, which killed 16 journalists and cut off information flow was cited, as well as the use of cluster bombs and depleted uranium, which harm civilians to this day. "The Berlin Tribunal: More Serious Than The Hague", states that the European Tribunal's verdict "as expected, found top officials of NATO and its member states guilty of having committed an aggression in violation of all the relevant treaties and international agreements, from the United Nations Charter to the NATO treaty itself, as well as numerous conventions." The same conclusion of NATO guilt was reached by a separate unofficial tribunal in New York.

How much power do unofficial tribunals have? Not much apart from handing down moral verdicts, pinpointing legal violations, and demonstrating the lack of any existing body for unprejudiced institutional recourse.

But the proposed International Criminal Court (ICC) could change all that. Based on a treaty adopted at a United Nations diplomatic conference in 1998, the ICC would "be a permanent court for trying individuals accused of committing genocide, war crimes and crimes against humanity". Its 18 judges and other officials would be elected by member states and every effort would be made to keep the court truly objective and unbiased. 37 countries have already ratified the treaty (including ten out of nineteen NATO members) and as soon as that number reaches 60, the ICC will be formally established.

A permanent war-crimes court would be much less expensive than setting up individual ad hoc tribunals, such as the ICTY, and it would enable immediate and objective recourse. Considering that the atrocities in East Timor, which clearly qualify as crimes against humanity and war crimes, have yet to be effectively addressed by an international court, the need for a permanent and objective body is clear. Amnesty International has complained that the delay in investigation has led to important evidence being lost or destroyed, and that "until the UN proves that it is serious about investigating the crimes committed in East Timor, (militia group) individuals will continue to assume they can commit violations with impunity".

But a close and honest look at the atrocities in East Timor would mean that along with the Indonesian government, those behind the scenes (namely the US, UK and Australia, among many others) would logically also be indicted for ignoring Indonesia's illegal annexation of the area in 1975, then supplying Indonesia with funds and sophisticated military equipment/training with which to oppress the local population. It is hard to imagine that powerful countries would support an international legal body which might hold them accountable.

That goes a long way in explaining why the United States is one of the primary countries opposing the ICC. The Bush Administration has delayed the release of its ICC policy until September, but most observers are not optimistic it will fair better than the Kyoto accords, ban of landmines or other international agreements so far rejected. Ten Senators recently sent a letter to the Secretary of State Colin Powell urging him to "reject the option of a diplomatic confrontation with our allies in an effort to kill the Court," and forty-four members of the U.S. House of Representatives sent a letter to President Bush asking him to "remain engaged with the Court and demonstrate America's commitment to the often difficult and complicated international effort to promote justice and human rights."

Still, US support of the Court seems unlikely; its hands are in too many covert cookie jars to desire outside observation. In "Genocide As the Solution to 'Terrorism' in the Occupied Territories?" Edward Herman notes, "The Hague Tribunal decision on General Krstic cited as authority for its narrow definition of genocide the UN's condemnation of the 1982 massacre of Palestinians at Sabra and Shatila as genocide, a mass killing carried out under the direction of Israel's current Prime Minister, Ariel Sharon," and further points out, "Israel's demolition of more than a thousand Palestinian homes, large-scale land seizures, and huge road construction programs in the occupied territories, under the Oslo "peace process" (are) all in violation of the Fourth Geneva Convention" not to mention the "steady increase in brutalization, destruction of Palestinian crops and olive trees, and closures that have made the indigenous and victimized inhabitants desperate."

A large number of human rights groups, including Amnesty International and the International Committee of the Red Cross, have repeatedly described Israel's actions in the occupied territories as "war crimes," but the prospect of even putting UN observers in Gaza looks bleak. Why? Part of it may have to do with the $92 billion Israel has received from the US since 1967, much of which in the form of military aid which inevitably returns to the States in the form of weapons purchases - the recent order of 29 apaches for $1.5 billion is one example. So it's big business with obscene profits, and if those US weapons happen to support Israel's assassination policy, which hypothetically the US opposes, or kill civilians, then the matter is just unfortunately out of US hands.

The need for a permanent and objective international war crimes court is clear, not only to provide justice for those who have been wronged, but also to act as a necessary deterrent - powerful officials and governmental groups may think twice upon realizing they could be next in the docks.

Heather Wokusch is a freelance writer. She can be contacted at