The World’s Worst 

How the international justice system works

Wednesday, Nov 7 2001

Slobodan Milosevic‘s ignominies in the dock at the Hague last week are the latest sign that the international justice movement is reaching maturity. The first major success was in 1999, when the British House of Lords approved Augusto Pinochet’s extradition to Spain to face charges of murder and torture. Although Pinochet returned to Chile because he was found mentally incompetent to stand trial, the House of Lords panel hearing the case invalidated Pinochet‘s automatic immunity as a former head of state. Following that precedent, Senegal arrested Hissene Habre, the former dictator of Chad, on charges of torture and crimes against humanity. The Tribunal for the former Yugoslavia has also been making progress, with some important convictions, the recent surrender of some high-profile officials to the Hague, and, most spectacularly, the sudden extradition of Milosevic last July. There will also likely soon be an International Criminal Court (ICC), seated in Geneva, to serve as a permanent tribunal for crimes like genocide, torture and crimes against humanity.

Much of this was unthinkable only a few years ago. Reed Brody is the advocacy director for Human Rights Watch, the United States largest human-rights organization. He was a lead participant in the Pinochet proceedings, and his organization was the first to call for Milosevic’s arrest. He says the international legal world is maturing, and that the era of immunity for the world‘s human-rights offenders is over. In a telephone interview from his office in New York, Brody makes plain the complex law of international justice and reflects about what this all means for fighting terrorism and dealing with Osama bin Laden.

L.A. Weekly: It seems that the international justice movement is picking up steam.

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Reed Brody: There’s been a real sea change in the past few years. We are seeing a new, although somewhat uneven, international movement to end impunity for the worst war crimes and human-rights abuses. People are being held accountable and brought to justice who would have been free 10 years ago.

Do you see a trajectory from the Pinochet case, where the first legal challenge to immunity for a former head of state was partially upheld, to the Milosevic case, where for the first time a former head of state is actually standing trial for human-rights abuses?

Milosevic was indicted when he was still a head of state, so that was a big development to start with. Milosevic and Pinochet are somewhat different, though. There are several parallel tracks running in the process of international justice. One is the ad hoc tribunals established to try perpetrators of atrocities in Rwanda and Yugoslavia. The Yugoslavia tribunal is based in the Hague, and that‘s where Milosevic is. Then there are prosecutions in national courts for foreign atrocities, such as in the Pinochet case. And then there is the International Criminal Court that will prosecute perpetrators of future genocides and crimes against humanity when national courts are unwilling or unable to do so. These three paths all lead in the same direction, and feed off each other, but they are distinct.

Let’s try to parse these three areas of law by taking each one individually. I‘ll first ask about Milosevic and the ad hoc tribunals. Milosevic, in his few statements so far in the Hague, did not recognize the authority of the court. Where does the tribunal’s authority come from?

It comes from the Security Council of the U.N., which is given the authority under Chapter 7 of the U.N. Charter to address threats to peace and security. In Dayton, Milosevic signed an agreement pledging his government‘s cooperation with the tribunal -- the very one he’s sitting in now. So he‘s not in a great position to challenge its legitimacy. That said, the court does get most of its support and most of its personnel from NATO countries. The tribunal was very swift in dismissing charges against NATO for bombing civilian targets like the radio station in Belgrade during the Kosovo campaign. And although I think all the individuals involved in the tribunal are impartial and of a very high caliber, I think the court needs to be aware of its structural dependence on NATO countries. But Milosevic’s challenge to the legitimacy of the court won‘t go anywhere. Defendants have been notoriously unsuccessful in asking courts to de-legitimize themselves.

Do you think the Milosevic trial will be a test for international law or set new precedents?

The trial of Milosevic will be very interesting. It will be a real test of the viability of this kind of international justice. First, we will see whether he gets a fully fair trial. Second, it will test the ability of proving this kind of case, which is not as easy as one might think. Obviously, horrible crimes were committed in Kosovo and Bosnia; but the prosecution will have to show that Milosevic is personally responsible for those crimes, even though he didn’t commit them himself and probably wrote no specific orders to commit them.

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