The International Criminal Court

No intellectual effort is ever in vain. When intellectuals suggested that World War Two, as compared to all previous wars, should be regarded as a struggle against darkness and death which must end with a trial of the criminals, it was believed that all would be forgotten quickly after the ceasefire. German and Japanese citizens, whose acts could not be linked to one country only, were tried in Nuremberg and Tokyo, while the less important criminals were passed judgement in Germany, Japan and elsewhere by courts of the victor countries.

The Nuremberg ruling is one of the great legal documents, and was worth insomuch as every judgement which is not law. It was then that people of vision urged that what had been achieved must

not to be abandoned, and that the world must not be taken by surprise in the event of another disaster, but must be ready with a standing international criminal court.

Even though the United Nations accepted the principles of the Nuremberg rulings and in the Convention on Genocide foresaw the competency of an international criminal court, which still had to be founded. Jurists who had, for the past 40 odd years prepared draft statutes for such a court, one competent to cover all international criminal acts, were held by "realistic" persons to be dreamers, and Vladan Vasilijevic was one of them. Diplomats adopted U.N. security council resolution 808, and international officials were given a two month deadline to elaborate this decision into rules on the make up and procedures of an international criminal court for judging war crimes in the territory of the former Yugoslavia. They will now search for those dreamers and their unread books and articles. The idea has ripened and the conditions have been met for its realization.

It can only guessed as to what the political chances were, for bringing this project to completion. Until the court's statute is known, all that can be said, is that this idea is more founded in law than the 1945 idea of an international military court.

Three types of international crimes were judged in Nuremberg (war crimes, crimes against peace and crimes against humanity). The international criminal court will deal with only one type: war crimes, i.e., serious violations of international law in armed conflicts. This, so called war law (jus in bello), is based on the principle that even in war one must remain a human being. Today none can base their defence on the fact that they did not know, and that they are being tried for a transgression which had not been defined before being committed. The 1949 Geneva Convention on the Protection of War Victims, and additional protocols from 1977 define serious violations as:

- wilful killing of civilians and POWs

- torture, mutilation and inhuman treatment

- taking of hostages

- attacks on the civilian population

- the transfer of parts of its own civil population by the occupying force to territory under its control

- the implementation of apartheid and other inhuman and degrading actions which are an insult to personal dignity, and are based on racial discrimination.

Therefore, the court would not have to estimate which of the violations were serious and which were not, because they are clearly described in the conventions and protocols. These were all ratified by Yugoslavia, translated and published in the Sluzbeni List, as every other law. None can say they did not know about them when the conflict started.

There is also no doubt that all the sides fighting in the Yugoslav spaces are subject to these rules. Namely, they all call themselves states - inheritors of Yugoslavia (and therefore, of its obligations), or liberation movements. As if they had been able to read the minds of our warlords and their faithful jurists, the creators of the conventions and protocols set out that they were applicable in all armed conflicts between countries signatories, "even if one of them did not recognize a state of war," and when "people are fighting against... foreign occupation and against fascist regimes, using the people's right to self-determination."

Finally, countries which have ratified the conventions and protocols can pursue suspected war criminals, judge and punish them. They are obliged to help each other in this, which means that they can extradite the culprits. Therefore, all that one of them can do individually, all can do together. The security council's decision was unanimous. None of the 15 member countries abstained. Even if they did not make up the security council, the United Nations' most powerful body, this group of countries would have the necessary authority. There have been many brutal conflicts, and such trials were not introduced. Why has agreement been reached when we are concerned? Answers vary, and some explanations are ugly, as for example, that the world is coming to terms with atrocities in Asia and Africa, but not in Europe. But are earlier omissions reason for not taking action? Resistance arises here from the supposition that the court will reflect dominant moods, which is natural in the case of the prosecution, but must not happen to judges.

It remains to be seen if all will manage to be impartial. In fact, with so many candidates waiting to be convicted, bias would not be based on overemphasizing the crime, but in a choice made according to already existing national stereotypes, which again, is linked to bringing an indictment. Unfortunately, we have lived for decades in the belief that an arraignment is a ready verdict. International rules on the protection of the basic rights of each man, even though he stands accused of the most brutal crimes, are now more developed than at the time of the Nuremberg trial (at the time, the defendants did not have the right of complaint). Individuals are being judged, not nations and states, because nations cannot be guilty, and they can't hide their personal grievances and frustrations behind someone's back. Illnesses are usually named after doctors, and judgements after the accused. No one knows their origin after that.