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What do you think will be gained if the case is successful?
It will show that prosecution is a viable instrument to bring these people to justice or hold them accountable. Almost everyone believes that people who commit atrocities should be brought to justice where the crimes were committed. But that is often impossible -- crimes committed in the name of the state are unlikely to be prosecuted by that same state. Or it may be inappropriate, if, for example, the suspect is no longer in the country, or the crimes in question were committed against other peoples. That would be like asking the Germans to try the Nazi leaders after the war. So when national justice wont work, international justice has to be a plausible alternative, and success in the Milosevic case will strengthen international justice.
You worked on the Pinochet case, which was an important development in the jurisdiction of national courts, one of the other legal tracks you mentioned.
Yes, as an official intervener.
The ruling in the Pinochet case was based partly on the notion of universal jurisdiction. Could you explain that briefly?
Universal jurisdiction is the legal principle that some crimes are so offensive to mankind that any country has the right -- and indeed the duty -- to bring the perpetrators of those crimes to justice. It is a very solid legal principle.The Pinochet case reaffirmed universal jurisdiction, because it said even former heads of state are not immune to justice. But more importantly, it showed us that, given the right circumstances, countries would put these principles into practice. And that was new and exciting.
The third track of international justice you mentioned is the ICC. Could you provide a little background on that?
Its an institution that most Americans are not yet really aware of. In 1998, the U.N. voted overwhelmingly -- by 120 in favor to seven against -- to establish the ICC. And the United States was one of those seven countries voting against.
And what is the substance of the U.S. argument against the International Criminal Court? Is it purely political?
The U.S. couches the argument in terms of runaway prosecutors and politicized attacks on the U.S. In fact, there are very strong -- and from a human-rights perspective, too strong --checks and filters built into the court. There is almost too much deference to state prerogatives. But in fact what the U.S. really wants is an ironclad 100 percent guarantee that no American will ever be brought before the ICC. And the rest of the world is just not prepared to accept that.
The U.S. position seems ironic, because the principles that will animate the ICC were, if not invented, first put into serious practice by the U.S. at Nuremberg. And the U.S. rhetoric at that time -- because those courts, like todays tribunals, were also called victors courts -- was that these were universal principles of justice and the U.S. would be prepared to be judged by them itself.
Thats right. I dont remember the quote, but that was certainly said. And today the U.S. opposes the ICC because the Pentagon is worried about having the latitude to conduct wars as it sees fit -- without international judges looking over its shoulder to look for violations of the Geneva Convention.
Clinton did sign the ICC treaty at the last moment, right?
Yes, but the U.S. has not yet ratified the treaty, and I doubt that will happen anytime soon. But the treaty will still come into effect anyway. Thirty-seven of the 60 necessary countries have ratified it so far, and sometime late next year probably the requisite number will be reached. So this is something that will happen, whether the U.S. ratifies or not.
Some people have suggested bringing bin Laden and other members of the al Qaeda network to trial. What about that, can the international justice system be brought to bear in this case?
The attacks of September 11th were crimes against humanity. This means that the future ICC or national jurisdictions can bring the authors of these crimes to justice. Legally, they could be tried in any state, regardless of their nationality or where the crimes took place.
What would be the best venue?
Human Rights Watch has not taken a position on that, but there are a number of possibilities, each having their advantages and disadvantages. There are some wrinkles if national courts are used. Many countries wont extradite suspects to the U.S. if they face the death penalty. An international court may also be seen around the world as having more legitimacy than, say, an American court. It depends, in part, on who captures these people.