It seems to me there’s a general sense out there of a Good Thing happening in the area of war-crimes trials and trials for crimes against humanity. Yesterday, a Bosnian Serb general was convicted of genocide for the 1995 Srebrenica massacre, by the United Nations tribunal on Yugoslavia. Former Yugoslav president Slobodan Milosevic was arraigned before the same court last month. A similar tribunal meets in Africa to deal with the 1994 slaughter in Rwanda. There are efforts to create an international criminal court. Former Chilean dictator Augusto Pinochet was arrested in Britain in 1998, then later released. Legal proceedings have begun in Brussels against Israeli Prime Minister Ariel Sharon for his actions against Palestinian refugees in Lebanon. All this gets somehow assimilated to the trials of Nazis at Nuremberg. To this vague sense of a Good Thing happening in the cause of a humane world, I’d like to add a vague sense of unease.
For starters, they’re not all the same. The Pinochet case was made by a zealous Spanish judge. The charges against Ariel Sharon were laid by individuals. The international criminal court has been largely derailed by the U.S., which demanded a veto on charges against Americans, then withdrew altogether. The real heavy hitters are the UN tribunals on Rwanda and Yugoslavia – the only such cases. They have funds and staff: 1,100 people and almost $100-million a year in the case of the Yugoslavia court.
It often feels as if Canadians have a special responsibility to be onside in this area. There’s been a lot of news – with a quotient of hype – about the special role Canadians have played. The poster girl is current Supreme Court Justice Louise Arbour, who served both the Rwanda and Yugoslavia tribunals, and who laid the charges against Slobodan Milosevic. So let me start with that example.
The charges came in May of 1999, during NATO bombing of Yugoslavia, including bridges, power plants, TV stations and neighbourhoods. There were criticisms being made. It served the interests of NATO to have the Serbian leader charged with crimes in Kosovo. Judge Arbour had not been in Kosovo during the war. She took evidence from NATO and thanked them for it. Bombing non-military targets is a war crime in international law, but she declined to lay charges against NATO, though she was asked to do so. I have no doubt there were grounds for charging Slobodan Milosevic with crimes, but there were also grounds for laying charges against NATO policymakers. What we have here is a double standard, or what U.S. academic Edward Herman calls “the amazing spectacle of a war-crimes tribunal literally servicing the commission of war crimes.”
This kind of hypocrisy suffuses the topic. Turkey’s war against the Kurds in the 1990s led to more than 30,000 killed and several million refugees – far more than those killed in Kosovo. More than 6,000 East Timorese were killed by Indonesian forces and several hundred thousand made refugees in 1999 – yet neither U.S. ally became subject to special tribunals.Yes, but isn’t it better to do something, somewhere? is the argument you hear. All I can say is: A law that is not for everyone is the same as lawlessness. If murderers get to decide who is punished for murder, then they have a licence to murder. This is not just a debating point. Indonesia’s government under General Suharto killed from 100,000 to a million people for their political beliefs after a 1965 coup. What amounts to a clerical error recently revealed that the U.S. embassy supplied names to the death squads. Here, the double standard protects client and patron from charges.
Writing in Britain’s The Independent, Jon Holbrook cites the argument that, “where states are unwilling to act against their own human-rights abusers, foreign states or international bodies are obliged to step into the breach.” What this evades is the question of which states and bodies get to judge, which are judged, and by what right? You wind up with a version of the nineteenth century’s Might Makes Right: Might Makes Rights.
There also seems to be a kind of infatuation with legal procedures at work, along with the odd, American notion that a trip to court is the answer to everything. This may be plausible in the U.S., where individualism and the free market make collective, political action difficult if not subversive. You might as well take your chances with Erin Brockovich. But for anyone who idealizes the judicial process, I’d prescribe a half-day in court once a year. The lawyers are out to win for their clients, not find the truth; the judges are susceptible to flattery and identification with power; the cops are often iffy in their methods. I’m just saying it’s not ideal. What accompanies the infatuation, I guess, is a despair with politics in an age where economic forces seem decisive.