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Victors' justice - or international justice? A political trial - or a fair trial? These opposing views of international criminal trials have been argued since the first tribunal was set up at Nuremberg in 1945 by the victorious Allies to try leading Nazis for crimes against peace, war crimes and crimes against humanity. The controversy has surfaced again with the trial of Slobodom Milosevic at the Hague and is, along with a challenge to the legitimacy of the UN tribunal there, an important part of Milosevic's own defence.
There are currently four courts set up to try war criminals, and a fifth in the making: the International Criminal Tribunals for Former Yugoslavia and Rwanda, the Rwandan government's own court in Kigali, the Cambodian government's court in Phnom Penh which has yet to start serious work, and a planned joint UN/government court in Freetown, Sierra Leone. These five courts together tend to reinforce the 'victors' justice' argument, in that the Yugoslav tribunal, set up in 1993, followed the NATO 'victory' in Bosnia, the UN Rwanda Tribunal, created 1994, followed the messy international involvement (and lack of) in the Rwandan genocide, while the government courts each arise out of the victory of one side in a civil war. Questions were raised about American pressure on Serbia to hand Slobodom Milosevic over to the ICTY in exchange for substantial financial assistance, and the tactic is again being used to get a quick surrender of other suspects in exchange for an end to the court's work, which the US thinks is costing too much.
These double standards in dealing with war crimes were established at Nuremberg, where the Allied Powers excluded from the indictments conduct for which the prosecuting governments themselves could be blamed, such as the British and American carpet bombing of cities, or Soviet crimes against East/Central European populations. NATO's culpability in bombing Kosovo and Serbia has similarly been excluded from consideration at The Hague.
These double standards have protected criminal governments in South and Central America, Africa, the Middle East and Asia, as well as the Western advocates of 'realpolitik', such as Henry Kissinger, who have used them openly for political ends. They also raise serious questions about the right of 'the international community', however defined, to intervene in internal affairs of states; since 1945, most war crimes and crimes against humanity have been committed by governments or rebel factions within their own country and against their own people. Critics of the international tribunals insist, therefore, that trials should be held within and by the country in which crimes took place, using their own legal systems. This is a reason behind the courts in Kigali, Phnom Penh, and Freetown, though all are in cooperation with the UN.
The Nuremberg tribunal gave a strong impulse to the human rights movement, and established important, innovative principles which form the core of international criminal law today. In particular, it established the principle of individual responsibility for crimes, with no immunity from prosecution or punishment for Heads of State or Government officials, and allowing of no pleas of superior orders in mitigation. It also established that a government could commit crimes against humanity against its own nationals as well as against aliens, and that these crimes could be committed by civilians as well as by combatants, in 'peace' time as well as war, principles which are crucial to the current tribunals.
But even these principles have to be continually tested. In a recent ruling against human rights groups who wanted to have Ariel Sharon of Israel tried for war crimes in Belgium, the International Court of Justice ruled that, as a Head of State Sharon has diplomatic immunity in Belgium and can only be tried in his own country. This seems to overturn the principles of individual responsibility even of Heads of State, and of universal jurisdiction.
The shortcomings of international tribunals have stimulated the demand for a permanent International Criminal Court, with judges independent of their governments, drawn from a mix of cultures and legal traditions and with authority to prosecute serious breaches of international law wherever they occur. A treaty to establish this court was signed in 1998 and came into force in June 2002. Britain has signed and ratified the treaty. The US has not. This court should, in time, build a body of international criminal law universally applied. But it will not be able to try any of the past or current suspects since it will have no powers of retrospective jurisdiction.
An international crime is a crime committed, not by a state as such, but by individuals who bear personal criminal responsibility.
Crimes against peace: defined as wars of aggression or in violation of international treaties at Nuremberg; war is proscribed by UN Charter (except for self-defence and collective security) as the crime against the international community, so now covered by war crimes.
War crimes: against the laws of war, or 'humanitarian law': cover types of weapons used; wanton destruction not justified by military necessity; attack against undefended towns, buildings; plunder of public, private property.
Crimes against humanity: murder, extermination, enslavement deportation, imprisonment, torture, rape, persecution, etc. directed against any civilian population in 'peace' or war. All states have a 'duty to prosecute or extradite', no immunity, no plea of superior orders, no time limit; universal jurisdiction.
Genocide: any acts committed with intent to destroy, in whole or part, a national, ethnical, racial or religious group, as such.
Universal jurisdiction: all states may have jurisdiction for crimes internationally recognised as of universal concern, e.g. piracy, slave trade, hijacking of aircraft, genocide, war crimes, certain acts of terrorism.
International Court of Justice: UN's principal judicial organ; successor to Permanent Court of International Justice, 1922-46. All UN members automatically parties to ICJ's Statute, but acceptance of jurisdiction voluntary unless a state has signed the Optional Clause for compulsory jurisdiction. 15 judges for 9 year terms elected by UN Security Council and General Assembly.