Washington Report on Middle East Affairs, April 2002, pages 34-35

Special Report

Despite Milosevic Trial, International Justice Is Not “Justice for All”

By Christopher Slaney

The trial has begun in The Hague of former Yugoslav President Slobodan Milosevic on charges of crimes against humanity and genocide. While the accused sat stony faced, ignoring the headphones provided for translation, Swiss prosecutor Carla Del Ponte in her opening statement announced, “Today as never before, we see international justice in action.”

Milosevic complains he is a target of American aggression and a centuries-old persecution of his people. When it was his turn to address the court he illustrated his opening remarks with dozens of gruesome photographs showing mutilated and charred bodies—victims, he said, of 1999 NATO bombing raids on Serbia and Kosovo. “In the guise of a trial you aim to justify your crimes,” Milosevic told the judges.

But it is an offshoot of globalization which has brought him to court. The proceedings at The Hague are part of what human rights activists hope will become a new worldwide system of justice.

According to Richard Dicker, who heads the International Justice Program at Human Rights Watch, “This is the advance guard of an international justice system focused on crimes where national courts are unable to do the job. Part of it is a movement to limit the impunity with which, in the last decades of the 20th century, crimes against humanity were committed.”

Milosevic, on the second day of his hearing, wore a tie in his national colors, scowled and denounced the tribunal as an illegal court. However, Dicker points out, the idea for international justice is gaining acceptance and legitimacy.

When the Yugoslav war crimes tribunal was set up in 1993 it was viewed as little more than an impotent afterthought, a salve on the conscience of the international community which had failed to prevent massacres in Croatia and ethnic-cleansing in Bosnia. The first prosecutions were brought against military small fry. “But nine years later,” say Dicker, “the international tribunal has taken on a life of its own and has surpassed the expectations of those who founded it.”

He cites the failed attempt to extradite former Chilean dictator Augusto Pinochet and indictments brought against a notorious Argentine torturer in Sweden and Italy as indicators that this new system of international justice is gathering momentum.

On Valentine’s Day, however, while Milosevic was delivering his opening statement before the International Criminal Tribunal for the former Yugoslavia (ICTY), a different court in The Hague was dealing a major blow to a separate attempt to indict Israeli Prime Minister Ariel Sharon for his part in the 1982 massacre in the Sabra and Shatila refugee camps.

In June last year a group of 23 Palestinians and Lebanese, relatives of victims of the Sabra and Shatila massacre, filed a complaint against Prime Minister Sharon in a Belgian court [see Aug./Sept. 2001 Washington Report, p. 9]. They were taking advantage of a 1993 law which allows Belgian courts to prosecute foreign nationals for human rights violations committed elsewhere. Another Belgian ruling in 1999 had lifted the immunity from prosecution usually granted to serving heads of state.

On Feb. 14, however, The International Court of Justice (ICJ), also known as the World Court, ruled that a former Congolese foreign minister, Yerodia Aboulaye Ndombasi, was immune from prosecution. President of the court Gilbert Guillaume ruled that Belgium was wrong in demanding the arrest of the former minister on charges of human rights abuses because he is protected from prosecution by diplomatic immunity—even when the charges refer to war crimes or crimes against humanity.

“The immunities under customary international law,” the ICJ ruling read, “including those of ministers for foreign affairs, remain opposable [applicable] before the courts of a foreign state, even where those courts exercise an extended criminal jurisdiction on the basis of various international conventions on the prevention and punishment of certain serious crimes.”

Belgian lawyers had used the same human rights laws to issue the arrest warrants against the former minister Ndombasi and Prime Minister Sharon. The court’s ruling in favor of the Democratic Republic of Congo could lead Belgium to review the law and consider dropping the case against Sharon.

Hearing in Lebanon

In a separate attempt at international justice, a Lebanese court has begun hearing evidence from another 21 Palestinian survivors of Sabra and Shatila. The Lebanese case has been filed by May Khansa, a Beirut lawyer with close ties to the Shi’i Hezbollah movement, and cites both Israeli Prime Minister Sharon and Foreign Minister Shimon Peres for their role in the 1982 massacres and in the abductions of Hezbollah leaders Sheikh Karim Obeid and Mustafa Dirani.

Obeid and Dirani were snatched by Israeli commandos in two separate incidents and are being held in Israel without trial in the hope they might be used as bargaining chips in a future exchange for Israeli soldiers missing in action in Lebanon. In terminology which foreshadowed America’s classification of the al-Qaeda inmates at Camp X-Ray, Obeid and Dirani are classified by the Israelis as “unlawful combatants.” Sheikh Obeid will soon be marking his 13th year in captivity.

Several Beirut lawyers were opposed to attempts to mount a trial against Sharon in Lebanon, because they feared the Israeli prime minister’s Belgian lawyers would argue the legal process under way in Lebanon negates the need for a separate trial in Europe.

The flurry of indictments and warrants in the context of the establishment of international systems of justice is causing potential defendants to take notice. When the charges against Sharon were filed last year, his Israeli lawyers dismissed the Belgian action as a political stunt. Someone in Jerusalem, however, took the possibility of an indictment seriously enough to quickly re-schedule a meeting between Sharon and Belgian Foreign Minister Louis Michel from Brussels to Berlin, just in case an arrest warrant could be issued. Sharon also hired a Belgian lawyer.

The notion that they are involved in actions which are considered illegal by the international community, and might one day lead to an arrest while abroad on vacation or business, is also gaining credence among Israeli army officers.

The Israel Defense Forces Judge Advocate General has recently issued legal guidelines for “selective assassinations”—the practice of killing Palestinians who are on Israel’s wanted list of terrorists. Punitive actions to avenge attacks in the past have been ruled out by lawyers. The Judge Advocate General says officers who give the command to kill must be sure the target is planning to carry out a terror attack in the near future, a so-called “ticking bomb.”

Despite a January decision by Israel’s highest court to reject a petition to declare the assassinations policy illegal, some officers believe it prudent for a legal expert to review the list of Palestinians targeted for liquidation.

Human Rights Watch says it is looking at Israel’s liquidations policy very closely.

In refusing to continue serving in the occupied territories, a group of Israeli reserve soldiers justify their actions, in part, as refusal to “participate in war crimes.” The organization Yesh Gvul (“There Is a Limit”), which has been active since the early years of the occupation of Lebanon, issued a declaration last September warning recruits and reservists, “Shooting unarmed civilians, including children, shelling and bombing of residential neighborhoods, assassinations, destructions of homes, withholding of food and medical care” are actions “that are defined in international and Israeli law as war crimes.”

Slobodan Milosevic finds himself in The Hague in part because he goaded the United States into a war over Kosovo and lost. This is a mistake neither Ariel Sharon nor any other Israeli leader is likely to make. Washington long has been opposed to a permanent war crimes tribunal, and former President Bill Clinton delayed signing the International Criminal Court agreement until the last minute.

America is not completely averse, however, to the idea of international justice overriding notions of national sovereignty. Former Panamanian Gen. Manuel Noriega, has languished in an American jail for over 10 years, and some Al-Qaeda members might be joining him soon.

Legal observers at The Hague point out that no system of justice is perfect, and the fledgling process of international law and punishment clearly has its faults. The United Nations has been unsuccessful in bringing former Khmer Rouge leaders to court on genocide charges, and no Russians have been pursued in connection with atrocities in Chechnya. But a flawed system is better than none at all, and wanted posters are going up in the most unlikely places.

Christopher Slaney is a free-lance journalist based in the Middle East.