Retko Mladic

Is International Justice useful?

written by Ulianova Radice and Annamaria Samuelli, founding members of Gardens of the Righteous Worldwide Committee 20 July 2011


Arresting Ratko Mladic in Serbia after he spent 15 years in hiding and bringing him to the Hague based on an indictment issued in 1995 by the International Criminal Tribunal for the former Yugoslavia reopened the debate on the legitimacy and limits of International Justice, in particular the relationship between politics and justice. Given the seriousness of the counts (war crimes, crimes against humanity, genocide) people in Belgrade reacted in distress, raising concern in foreign observers, to the news of the seizure: many acclaimed Mladic as a war hero, thus turning the persecutor into a victim, and at the same time they delegitimized the competent International Court.
On the anniversary of the signature of the Charter establishing the “International Criminal Court” in Rome it may be useful to ask ourselves if this kind of supernational judging panels are indispensable, or at least necessary, or superfluous if not even harmful, as someone says.

Back at the beginning of the Twentieth century the winning powers of the First World War had already set up an “Allied Commission” in charge of punishing the political and military leaders of the Central Empires and the crimes against “the laws of humanity”, but the project failed, crushed by “higher” diplomatic and military requirements. Nonetheless that very intention prompted the Sultan of the Ottoman Empire, determined to forestall the Allied Commission, to formally establish in 1919 in Constantinople the Mazhar Commission to punish the culprits of the massacres against Armenians perpetrated by the government of the Young Turks. The first significant experience of a supernational Tribunal, albeit military and not civilian, was the one set up in Nurnberg to judge the crimes committed by the Nazis, established by the powers who had won the Second World War. A similar tribunal was set up in Tokyo with the same aims. When genocide was defined by the United Nations in 1948, the member States put forward the need for a supernational international tribunal, which was though impossible to create, for the single States resisted giving up their own jurisdiction over criminal prosecution, and even more so in the framework of the Cold War, which was then taking shape. Only in the ’90 the idea to establish such a court came to the spotlight again, on the wave of the emotion stirred by the Rwandan genocide – which witnessed in 100 days the killing of a million Tutsies as the great powers stood by – and the ethnic cleansing in the Balkans after the traumatic dismembering of the Yugoslavian Federation. In 1993 tge UN established an ad hoc International Criminal Tribunal for the ex Yugoslavia based in the Hague, with the rightful jurisdiction to prosecute the perpetrators of ethnic cleansing, while the following year witnessed the start of the activities of the International Criminal Court for Rwanda in Arusha, Tanzania. At the same time, the gradual process of pacification in South Africa at the end of the apartheid regime led to the creation by the nation State of a “Truth and Reconciliation Commission” which can be recognised as a fit and proper tribunal with the rightful jurisdiction to judge the violations of human rights in that society. In 1998, based on those experiences, the UN member States reached the agreement to set up an entity holding jurisdiction over prosecuting the offenses connected to the crimes against humanity. The Charter of the International Criminal Court was signed in Rome on 17 July and came into force in 2002 after reaching 120 adhesions, albeit with significant exceptions such as the United States, Turkey, China, Japan, and Israel. Also in this case the seat was set to be in The Hague.
By subscribing to this agreement the signatory States have taken up the responsibility to cooperate concretely with a law entity that exceeds the parameters of their law system, giving up the part of their jurisdiction over the crimes lying under the Court’s jurisdiction. Goverments have often failed to express any political will whatsoever to try the perpetrators of crimes against humanity and this has fostered a culture of impunity around all major events concerning the State extermination of their own subjects, as well as citizens. The establishment of a supernational entity makes it possible for the perpetrators of these crimes not to go unpunished, in the interest of the whole international community.
This is why we can answer our initial question by saying that in some cases the Court plays an essential role and it always complies with the necessary task to fullfill the principles and aims of the UN Charter, that is the charter of the entity created after the Second World War trauma to find shared solutions for international tensions, in the attempt to prevent from the tragedies of the Twentieth from being repeated. As the State is the fruit of a covenant between institutions and citizens, in which the latter forgo some of their freedom in exchange for an acceptable level of civil coexistence able to ensure the development of the general welfare, a supernational entity is born of the single State’s aspiration to a stable balance, to achieve which it is ready to forgo some of its own power. Also prosecuting the culprits of crimes against humankind can be considered as a valid help international institutions offer to keep peace within democracy. Furthermore such crimes are usually committed in authoritarian environments, where those on power have no interest whatsoever in facing the issue of condemning the culprits, as there is a lack of democratic confrontation about the political and social dynamics. In such situations the “social contract” between the citizens and the state has undergone a failure, because those on power have not pursued the common good, but they have carried out actions against a part of the population. In such cases there is no government legitimacy to justify the call for “non intereference” and the presence of an international entity compels the political actors to confront with a wider public, interested in sanctioning the repressive and antidemocratic behaviours. Only when a society finds the strength to face up to its own wounds from within, by democratically confronting the responsibilities and dynamics which caused the violence, and subsequently punishes the guilty, recourse to the International Court can appear as superfluous, as in the case of South Africa mentioned above. Unfortunately this happens very rarely. Once agreed upon the importance of such an entity, we cannot though pretend not to see the problems which remain there. First of all the risk of granting the law “carte blanche” for the solution of problems typically belonging to he sphere of politics, resulting in its relinquishment to settle the international issues relating to the States guilty for crimes against humanity. Other than the danger, ever in wait, that some more significant states exert a major influence on the judges’ decisions. In the end we also witness a lack of a well-constructed legislation and a well-established jurisprudence on the crimes over which the Court has jurisdiction, which would be all the more urgent that the awaress of its function grows and its credibility broadens. This also face the need that its jurisdictional production be considered as exemplary by the states which are “juridically” younger and less fitted to ensure the safeguard of the individual’s rights.Establishing a well-constructed and universally acknowledged international criminal code is no simple undertaking and above all it gives rise to the problem of the relationship between justice and legality. Would the international community consider establishing a UN commission to assess the compliance of the codes and the constitutions of the single states with the fundamental norms of freedom and justice provided by the universal charter of human rights? Which criteria should it follow given the composition of some of these commissions, which are dominated by states which are notoriously little keen on respecting the democratic principles? The upsetting response of the crowd in Belgrade to the arrest of Ratko Mladic suggest that the struggle against extremism and fanatism, as well as the lack of confidence in supernational entities and the very possibility to abide of shared rules, is still long and demanding. In the former Yugoslavia borders and territory have been defended by waging war and some ruthless personalities have pandered for public consensus with loads of lies disguised as patriotism.This is why it is urgent to refer to the preamble contained in the Statute of Rome establishing the permanent “International criminal court”, which reminds us that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured” and that we must be “Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. The implementation of such principles, face the crackdowns ongoing in many areas of the world, beginning from our Mediterranean Sea, is a task the international community cannot avoid.

Is international justice useful?