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.
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.
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 won‘t 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?
It’s 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 today‘s tribunals, were also called victor’s courts — was that these were universal principles of justice and the U.S. would be prepared to be judged by them itself.
That‘s right. I don’t 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 won‘t 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.
And the ICC, is not currently an option.
Yes. But, were there an ICC, that may be most appropriate, because it would be multilateral and would enjoy the most international consensus, especially since so many countries signed the treaty. And the ICC provides an agreed-upon framework and set of rules for bringing the worst international criminals to justice, so it is tailor-made for this kind of crime. Even so, this is all somewhat hypothetical, not only because there is no ICC, but also because the states affected by the attack would have to all defer to the ICC, and that seems unlikely.
The ICC is a court with complementary jurisdiction; it was conceived to take action where national courts couldn’t. Without too much detail, this means that legally, if the U.S. captures Osama bin Laden and wants to put him on trial, they have a right to. Even if someone else captures Osama bin Laden and handed him to the ICC, if it existed, the U.S. would still have the right to have first crack at him. So, you would need all the countries that have jurisdiction to agree to let the ICC keep him. And none of this, of course, answers the question how you could actually bring bin Laden or others to trial.
That‘s the biggest obstacle to using global justice against al Qaeda.
It’s just not so easy. One of the controversies people talk about relating to September 11th is whether you employ a law enforcement or military approach. In countries where a law-enforcement approach is possible, then that makes sense. But that‘s not possible in Afghanistan. Talking about the ICC, or any other instrument of international justice, is not like waving a magic wand. And it certainly doesn’t help you capture these people or actually bring them to justice.