The Times (London)
August 10, 1999, Tuesday
SECTION: Features
HEADLINE: ‘Since law enforcement is probably the single most important sovereign power, it is threatened if it is transferred to unaccountable bureaucrats’
BYLINE: John Laughland
At least Louise Arbour never minces her words. The departing Chief Prosecutor of the International War Crimes Tribunal for the Former Yugoslavia believes that she and her court have ushered in a new era in international relations.
“We have passed,” she intoned last week, “from a regime of co-operation between states to a regime of constraining states.” Miscreants can now be punished, was her triumphant cry.
This followed the decision, announced, on July 28, to refer Croatia to the Security Council of the UN for “failing to comply with its international obligations”. This serious charge is the culmination of a long dispute over Operation Storm, the police and military action in August 1995 which resulted in the “ethnic cleansing” of hundreds of thousands of Serbs from the Krajina region of Croatia.
Croatia has always maintained that Operation Storm is an internal matter and has accordingly refused to hand over documents, calling instead for independent arbitration to decide who has jurisdiction. The argument turns on whether Operation Storm counts as an “armed conflict”. Only if it does can it come under international law. For instance, the conflict in Northern Ireland is not so classed and is therefore subject only to British national law.
Although the Chief Prosecutor has systematically rubbished Croatia’s position as “meritless”, her own definitions of “armed conflict” are worryingly elastic. When Serbs in Kosovo started to be murdered and chased from their homes after the cessation of Nato’s hostilities against Yugoslavia, the Tribunal initially indicated that it could investigate only “crimes that occur during war, during armed conflict that involves members of armed entities”.
But in response to public outrage at the massacre of 14 Serb farmers at Gracko, Mrs Arbour decided that these crimes did fall within her remit after all. Her office explained that although armed conflict had in fact ceased, it might erupt again: the conflict was therefore merely “dormant”.
Given that the last time the Serbs lost Kosovo they nursed their grudge for 600 years, doubtless also considering the conflict “dormant”, this is tantamount to saying that the entire future of the Balkans will be subject to rulings emanating from Mrs Arbour’s office.
It is very dangerous to base a new era of international justice – and especially the destruction of the difference between national and international law – on such vague notions. Since law enforcement is probably the single most important sovereign power, there is a threat to the rule of law if it is transferred to unaccountable international bureaucrats, especially since the Tribunal has shown a disturbing tendency to define the terms of its own legitimacy: the powers Mrs Arbour thinks she enjoys over Croatia are ones the Tribunal has awarded itself.
The Tribunal has also nourished a dangerous tendency to confuse its own prosecutions with judicial convictions: the Prosecutor has publicly declared Croatia “delinquent” in advance of any hearing, just as people have already slipped with dangerous ease from saying that President Milosevic has been “indicted for war crimes” to calling him “an indicted war criminal”.
A man used to be innocent until proved guilty but, in seeing herself as the militant creator of a new system of international justice, Mrs Arbour sometimes seems to forget that, as a prosecutor, she enjoys no judicial superiority over her defendants.
These questionable practices come against the background of increasing suspicion that, before she retires on September 15, and flush from her success in indicting Mr Milosevic, Mrs Arbour wants to indict the President of Croatia as well, for acts committed in Bosnia in 1993. In July one of her prosecutors emphasised in court that President Tudjman was the real author of crimes for which it is demanding that a Croatian general be sentenced to life imprisonment. Any indictment would obviously render Mr. Tudjman’s party’s re-election at the end of this year highly problematic.
It is an open secret that senior figures in Brussels also want to see Mr Tudjman removed from power. A document published in Brussels in May, on which the Germans drew heavily to create the European Union Stability Pact for the Balkans, laid down as a condition for Croatia’s admission as a new associate member of the EU that it change its government on December 1, 1999 – a process it referred to as “political normalisation”.
In other words, countries in the New World Order will not only be deprived of their ability to make their own laws. They may be deprived of the right to choose their own governments.