The Rise and Rise of Human Rights by Kirsten Sellars
Published by Sutton Publishing, 2002
Trials and Tribulations
On 7 May 1996, Dusko Tadic became the first man to stand trial in an international war crimes court since Tojo and co., nearly half a century before. The court was the UN’s International Criminal Tribunal for the former Yugoslavia, convened in The Hague. The accused was not a high official in fact he was a freelance prison guard, and held no rank whatsoever but the charges against him were grave: the rape, torture and murder of prisoners in Serbrun prison camps in Bosnia in 1992.
It seemed like an openandshut case. Then, in August, a prosecution witness, Witness L (name: Dragan Opacic), took the stand. He testified that his father had been killed in the war, leaving him and the rest of his family to fend for themselves. In 1992, while still a teenager, he had tried to avoid the callup by going to work as a guard at the Trnopolje transit camp, where he had been promised wages of DM 300 a month. He told the court that while he was working there he had seen Tadic murder and rape inmates, and that he had been compelled to do the same himself. Witness L’s testimony was shocking. After describing a series of rapes in graphic detail, he then recounted how Tadic and other guards had forced him to slit the throats of two old Muslim men.
A: [Witness L] . . . Tadic was beating that other old man and turned his head so that he could see how I was butchering that old man. I drew the knife across his head. I discarded the knife and the blood spurted on my uniform. I wanted to stand up from that old man, but they did not allow me until he expired. When he expired, they lifted me off that old man and put me on the other one. I was struggling again, fighting and crying, saying I could not do that. Zoran Karajica took the knife which I had thrown away, wiped it off the beard of that old man, the knife which was bloody. I sat down on the other [man]. Dusko Tadic put his foot on his face, on his temple, and pressed his head against the ground….
Q: [Prosecuting counsel, Grant Niemann] With the second old man, once Tadic had put his boot on the head of the old man, what was the next thing to happen? What happened then?
A: [Witness L] Zoran Karajica gave me the knife, so as to butcher that old man too. I could not. Dusko Tadic drew out a pistol, pointed it at my head. It was a 7.62 pistol. He pointed it at my head, at my forehead, and told me that I had to do it. Bosko Dragicevic pointed the rifle at my back and then Bosko told him not to kill me, that I would do it at least to prick the man’s throat with the knife, and I could do nothing but prick that man’s throat with the knife, so I stabbed this knife into his throat.
Q: [Niemann] You stabbed the knife rather than pricked the knife, is that right?
A: [Witness L] Yes.
Later that day, Niemann asked Witness L to identify Dusko Tadic in the court.
A: He is sitting on the left side.
Q: Can you describe the clothes that he has on?
A: He is wearing civilian’s clothes.
Q: What colour is his coat?
A: He has a blue coat, a jacket sorry. He has a shirt.
Q: Might the record reflect, your Honour?
The Presiding Judge: Yes, the record will reflect that the witness identified the accused.
Witness L’s evidence was especially powerful because he was a Serb testifying against a Serb, he cast himself as a tormentor as well as a victim, and he claimed to have committed and witnessed capital crimes being committed at first hand.
But Tadic’s British cocounsel, Steven Kay QC, began to have his doubts about the testimony of Witness L when he first crossexamined him:
Every time I try to ask a question that would throw light upon who he [Witness L] was, I’m stopped; I try again, I’m stopped. And I’m getting the feeling that there’s something behind this that this is a completely dodgy witness. When Witness L mentioned that the fence at Trnopolje was two metres high, and I’d been there and seen that it was under a metre high, I remember turning around to the others and saying, ‘I don’t think he’s been there.’
During a break in the case, the defence team, led by the Dutch lawyer Michail Wladimiroff, travelled back to the Trnopolje region in Bosnia to take a closer look at these allegations. There, they stumbled across Witness L’s family almost by accident, when a boy rode past them on a bicycle. Kay recalled:
This boy looked exactly the same as Witness L: jet black hair, massive bushy eyebrows that looked like pieces of carpet, a thin face, sunken eyes. We thought, ‘Christ!’ In his statement he said that he’d been to his father’s funeral, that he had no brother. We followed the boy around to the farmyard, and there we found his father alive. He looked exactly like him…. We went to the school and found the class attendance records that indicated that on the days he said he was taking this rifle and going off to kill people, he was in class…. Near Trnopolje we searched for the house with the cellar where all the rapes and murders were supposed to have taken place, but there was no house like that there.
The lawyers persuaded Witness L’s father Janko and his brother Pero to travel to The Hague. There, they and the prosecution’s chief investigator, Robert Reid, arranged a meeting between the three family members. At this encounter, Dragan Opacic at first refused to admit that he knew them. Then he relented and conceded that Janko and Pero were indeed his father and brother. He then told Reid that he ‘had been set up by the “Bosnians”‘, who, he said, had trained him to give false evidence against Tadic. Later that afternoon, Reid told the court: ‘I then asked him if he, in fact, did know Tadic?’ Opacic had replied that the first time he had seen him was ‘on a video’ shown to him several years after he had claimed to have worked at Trnopolie. The investigator continued:
I then asked him was he actually a guard at the camp and he told me that he never was. I asked him how he knew the layout of the camp and the surrounding areas so well. He stated that he used to play football with his friends . . . within the grounds of the camp. He also stated that he used to pass the camp on occasions and saw detainees within the camp. I then asked him why he had pleaded guilty to something that he had never done. He stated that he had been threatened that if he did not cooperate with the Bosnian authorities he would be executed.
After reviewing Opacic’s testimony, Grant Niemann announced that he was dropping the charge against Tadic relating to Trnopolje. ‘Prosecution now feels that it can no longer support that witness as a witness of truth’, he said, ‘We invite the Chamber to disregard his evidence entirely.’
This case raised obvious doubts about using anonymous witnesses, who are harder to crossexamine, and more are likely to perjure themselves. Would other undiscovered Witness Ls appear at The Hague? This turned out to be just one of many thorny legal questions raised at the latest international tribunals.
* * *
War crimes trials are the cutting edge of human rights crusades, and the Yugoslavia Tribunal was the first one to appear after the Cold War. It was, to all intents and purposes, the creation of the United States, which drafted its original statute, instigated a shortlived war crimes commission to test the water, and shepherded the idea through the United Nations. The Security Council finally brought it to life in May 1993. Some senior human rights figures have argued that Washington initially conceived of it as a lowcost, lowrisk sop to domestic critics on Bosnia. But it was much more than that. It was an opportunity to assert the authority of the self-proclaimed ‘civilised nations’ over pariah states, by putting their citizens in the dock. In short, it was a Nuremberg for the new postCold War order.
Where America led, the other Security Council members followed albeit more reluctantly. Although all voted in favour in the court, most of the Big Five had serious doubts about the enterprise. China feared a backlash against itself and was only dissuaded from using its veto by a bribe namely, Washington’s promise to renew Beijing’s most favoured nation trade status after the Tiananmen Square massacre. Russia did not want to censure her allies in Belgrade. And Britain did not want it to impede the diplomatic efforts of its European mediator, David Owen. The Foreign Office thus mouthed favourable platitudes in public, while playing a spoiler role behind the scenes, insisting, for example, that it be funded out of the cashstrapped United Nation’s general budget. As a consequence, the tribunal was stunted at birth for want of money. Its first annual budget was just $10.8 million, about the same as the cost of the defence alone in the trial of Oklahoma Bomber Timothy McVeigh. ‘There was zero!’ recalled the then court president Antonio Cassese of the early days. ‘Nothing! We had four secretaries, a few computers, and the UN had rented a meeting room and three small offices…. The rent was paid for two weeks.’
The footdragging did not stop there. The Big Five plus ten more sitting members of the Security Council spent over a year deliberating over whom to appoint as chief prosecutor. Titfortat rejections of nominees were par for the course. The British rejected the Arab and nonaligned nations’ candidate, the Egyptian Cherif Bassiouni, because they thought his commitment to arresting Serb leaders would wreck Owen’s peace process. In return, the nonaligned nations refused the British candidate, John Duncan Lowe, because they thought Britain was behind Europe’s inaction in Bosnia. The Russians turned down the Canadian candidate, Christopher Amerasinghe, and the American candidate, Charles Ruff, on the grounds that Nato nations’ nominees were bound to be antiSerb. And the Pakistanis rebuffed the Indian candidate, Soli Sorabjee, as a swipe against their regional rivals. In all, eight candidates were ditched. The UN Secretary General, Boutros Boutros Ghali, then appointed the Venezuelan Ramon Escovar Salom, but just as he was about to start the job, a better offer came along and he resigned. As a Security Council member’s representative observed, the hunt for a prosecutor had turned into ‘a ghastly nightmare’.
In July 1994, the Security Council finally settled on the South African judge, Richard Goldstone a willing candidate to whom nobody objected. Before his appointment, Goldstone had chaired a commission investigating police and military violence during South Africa’s democratic transition. He enjoyed a reputation for being a tough, liberal jurist a reputation enhanced by his unpopularity with apartheid’s old guard, who had denounced his commission report as ‘riddled with hearsay evidence [and] vague insinuations’. Other detractors, including some on the human rights circuit, criticised him for failing to produce sufficient new evidence or convictions. They also disapprovingly noted that he was ambitious (the South African press dubbed him ‘RichardRichard’ because of his apparent desire to replace Boutros Boutros Ghali). These charges and more would be levelled against him again by different interlocutors during his tenure at The Hague.
By early 1995, the new organisation moved out of its tiny offices and into the old Aegon insurance building located in a dreary Hague plaza, Churchillplein (named after the onetime advocate of summary executions). Movement was still painfully slow, with no trials in progress, and only one suspect, Dusko Tadic, in the pipeline. Judges were just ‘sitting around twiddling their thumbs’, recalled tribunal spokesman, Jim Landale. In February, frustrated court president, Antonio Cassese put out a press release demanding that the prosecution issue ‘a programme of indictments’ to ‘effectively meet the expectations of the Security Council and of the world community at large’. This was a clear signal that he saw his role as one of facilitating arraignment. The following year he urged officials to ban Serb athletes from the 1996 Atlanta Olympic Games in order to increase pressure on Belgrade to deliver up the ‘war criminals’ Radovan Karadzic and Ratko Mladic. The human rights lawyer, Geoffrey Robertson QC, observed that Cassese’s ‘presumption of their guilt, and agitation for their arrest, would have disqualified him for bias in many domestic legal systems’.
During an early case, American defence lawyer Russell Hayman complained to judges that the prosecution would have been censured for its behaviour had the trial taken place in a Californian court. The French judge, Claude Jorda, retorted that it had never promised to abide by the rules that Hayman was used to ‘in Los Angeles’. Not LA Law, say supporters, but not Nuremberg law either. They argue that the Yugoslavia court which covers war crimes, grave breaches of the Geneva Conventions, crimes against humanity and genocide is a considerable improvement on the earlier tribunals. It has jettisoned Nuremberg’s most contentious ex post facto charges, such as aggression, and its most doubtful procedures, such as trials in absentia. They also argue that unlike the vengeance dispensed at Nuremberg and Tokyo, it provides genuinely impartial justice because all members of the United Nations sit in judgement. As Antonio Cassese put it: ‘[F]or the first time, the community of States is rendering a justice which is not that of the victors . . . a justice animated not by a spirit of revenge but by the determination to bring the criminals to book and prevent further crimes’. This is a curious argument, given that the Security Council that established the court has endorsed airstrikes against Serb forces; and that the Nato members which underwrite it have waged war on Belgrade and won.
The tribunal is mandated to prosecute serious crimes in the Balkans, but its focus has been selective. For example, would it put Western military leaders on trial if they were accused of committing war crimes in the region? This matter came to a head in December 1999, when Canadian lawyers and Russian parliamentarians raised the issue of Nato’s military actions against Serbia. The Swiss chief prosecutor, Carla del Ponte, initially responded that she would investigate anyone who violated the Geneva Conventions. Then, under pressure from Washington, she issued a sudden retraction, stating that ‘Nato is not under investigation by the Office of the Prosecutor.’ Shortly after, Amnesty International accused Nato of illegally bombing Belgrade’s TV station. Del Ponte hit back with a report explaining why she would not be pursuing the issue. ‘Facts and law! No political motivations! Just facts and law!’ she declared. But the facts and law in her report raised more questions than they answered such as why prosecutors had indicted Milan Martic for shooting clusterheaded rockets at Zagreb in May 1995; but not Nato for dropping cluster bombs on Nis in May.
The Nato powers exert a disproportionate influence upon the court’s business. The United States has played a vital role in its development, as senior court figures acknowledge (former court president Gabrielle Kirk McDonald described Madeleine Albright as ‘the mother of the tribunal’). It also makes an important daytoday contribution to its work. It regularly donates cash and equipment, such as the $2.3 million worth of computers given to the prosecution in 19945, and the $1.08 million pledged in 19978 (of which $400,000 was earmarked for ‘investigations into Kosovo’). It also provides the court with legal expertise, and supplies the human and signals intelligence that enables the prosecution to construct its cases. The Americans and the British have recently given prosecutors greater access to satellite imagery and battle communication intercepts. In the Krstic case dealing with the Srebrenica massacre, for example, US spy planes provided photographic evidence, while the US Army and British Army provided the military intelligence analysts Richard Butler and Richard Dannett, respectively to interpret the evidence. The CIA reputedly maintains the encrypted telephone in the chief prosecutors’ office.
Yet despite this intimacy, the tribunal’s relationship with the United States has not always been a happy one. Washington is not averse to calling the shots in public from time to time and embarrassing the tribunal in the process. In 1997 American officials as opposed to court personnel promised indicted Croats a speedy trial if they surrendered themselves. ‘[By] making such statements they are making us look like a politically driven tribunal that you can switch on and switch off every day, according to political circumstance’, a Hague spokesman complained. This is clearly a sore point. As the former chief prosecutor, Louise Arbour, has admitted, the Western powers do indeed ‘slow down the flow of information or accelerate it’ in line with their political aims. There have been other public spats, too. In February 1998, Clinton’s envoy to former Yugoslavia, Robert Gelbard, gave notice that a ‘significant number of indictments will not stand up in court’, and that the United States would not risk soldiers’ lives arresting people with ‘weak’ cases against them. Arbour retorted that his assessment of the cases was speculative ‘since no state, including the United States of America, has access to the evidence upon which the indictments have been confirmed’. Her protests were unconvincing, though, and the tribunal quietly dropped charges against fourteen Serbs four months later.
The climax of the court’s relationship with the West came during Nato’s spring 1999 offensive against Serbia. A week after Nato bombs began to rain down on Belgrade, Louise Arbour softened the political terrain on behalf of the Alliance, by announcing that charges had been issued against the Serb, Zeljko Raznatovic nicknamed ‘Arkan’. Her message to President Slobodan Milosevic was clear: back down over Kosovo or you will be next. As good as her word, she announced his indictment two months later. The Washington Post claimed that the timing of this action was dependent on America’s release of material to the prosecution. But the State Department’s war crimes ambassador, David Scheffer, denied this: ‘the indictment was not made in the USA’, he said. (He did not mention that it had earlier discouraged Milosevic’s arraignment when he was playing a useful role in the 1995 Dayton peace talks on Bosnia. At that time, officials had argued that the arrest of alleged war criminals should not be a ‘show stopper’.)
In April 1999, midway through the Kosovo conflict, Arbour made a whistlestop tour of Nato capitals, collecting promises of assistance wherever she went. On 19 April in Bonn, she gratefully received from the German Defence Minister, Rudolf Scharping, aerial photographs of Kosovar villages taken by reconnaissance drones. The next day in London, the British Foreign Secretary, Robin Cook, promised her a dossier of intelligence on atrocities committed by Serbs in Kosovo. Two days later, Lionel Jospin’s government in Paris said it would gather eyewitnesses, protect investigators and refugees, and pass on military information. It all added up to ‘unprecedented levels of cooperation’, said deputy prosecutor Graham Blewitt. By contrast, when a delegation from a Parisbased Serb solidarity organisation tried to deliver a petition calling for Bill Clinton’s indictment as a war criminal, they were told that the prosecutors were ‘too busy’ to accept it. In the end, they had to hand it in to a UN guard on the gate.
Arbour’s trip to London seemed to be expressly designed to highlight the tribunal’s support for one side of the war. She joined Robin Cook and chief of staff General Sir Charles Guthrie at a press conference held at the Ministry of Defence, the department responsible for Britain’s attacks on Serbia. At this event, Cook promised to give her ‘one of the largest releases of intelligence material ever authorised by a British Government’, and more to come ‘as the horror unfolds’. An outline of the contents of this dossier had already been conveniently released to the press, and it turned out to be a ragbag of old newspaper stories, recycled Nato propaganda, and Whitehall fabrications. (One document proclaimed the discovery of three Serbrun rape centres at Globocica, Urosevac and an unidentified location on the KosovarAlbanian border, a claim that remains unconfirmed by credible sources to this day.) Answering a question put to her at the press conference, Louise Arbour stated that it was ‘inconceivable’ that the tribunal was ‘servicing a political agenda’. Yet her presence at this publicity stunt, designed to add to the swelling tide of atrocity stories already doing the rounds in the British media, belied her words.
A few weeks later, Nato spokesman Jamie Shea was asked by a reporter whether his organisation recognised Arbour’s jurisdiction over its activities. His response was revealing:
I believe that when Justice Arbour starts her investigation, she will because we will allow her to. It’s not Milosevic that has allowed Justice Arbour her visa to go to Kosovo to carry out her investigations. If her court, as we want, is to be allowed access, it will be because of Nato…. Nato is the friend of the Tribunal, Nato are the people who have been detaining indicted war criminals for the Tribunal in Bosnia . . . Nato countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers . . . we and the Tribunal are all one on this, we want to see war criminals brought to justice and I am certain that when Justice Arbour goes to Kosovo and looks at the facts she will be indicting people of Yugoslav nationality and I don’t anticipate any others at this stage.
In other words, he who pays the piper calls the tune.
The Western human rights groups operate as the court’s foot soldiers, providing it with personnel, information, resources and moral support. The Bostonbased Physicians for Human Rights has assisted it in the exhumation of graves and the forensic examination of corpses. The Genevabased International Commission of Jurists has provided the judges and registry with scores of legal researchers. The European Unionfunded Rehabilitation and Research Centre for Torture Victims has operated counselling services in the Victims and Witnesses Unit. The New York-based Open Society Institute, established by George Soros and led by Aryeh Neier, has donated money, subscriptions and personnel. All are committed to impartial international justice. And almost all of these organisations focus their attention on issues relating to the prosecution, rather than the defence: campaigns to speed up the arrest of suspects, the gathering and assessment of certain kinds of testimony and evidence, and the protection and counselling of the victims.
Human Rights Watch has backed the tribunal right from the start. From 1993, it mounted a campaign for war crimes trials in which it issued a steady stream of documents designed to highlight the criminality of political and military figures. In August 1993, it produced a report called Prosecute Now! which zeroed in on eight named individuals five Serbs, two Croats and one Bosnian Muslim whom they accused of crimes ranging from mass rape to genocide. (These eight men were among the first investigated by the prosecution.) In February 1994, it produced a document that criticised the UN for its failure to establish an effective court, and in April 1994 they produced another focusing on ethnic cleansing in Bosnia-Herzegovina that identified six more alleged war criminals. In September 1994, Richard Goldstone met the new head of Human Rights Watch, Kenneth Roth, in New York to discuss the prosecution’s access to their confidential witness testimony and other evidence. Shortly after, Human Rights Watch’s Ivana Nizich began to conduct research on behalf of the tribunal.
After the July 1995 Srebrenica massacre, Human Rights Watch intensified its efforts, when it drew together a coalition of twentyseven nongovernmental organisations to press for ‘American leadership’ to ‘stop genocide’ in Bosnia. This group produced a public statement demanding that the Clinton administration take ‘unilateral military action’, and impose sanctions to enforce cooperation with the court. A steady stream of articles and letters condemning Western inaction appeared at the same time. Washington must have been grateful for the coalition’s help in readying the American public for military intervention. Nato unleashed airsrikes against the Bosnian Serbs the following month.
This double act between the government and NGOs also extended to the Balkans. Washington threatened punitive bombing raids, demanded the handover of suspects to the Hague, and offered aid to those receptive to Nato policy. Meanwhile, the American human rights and aid agencies condemned local ‘nationalist’ political parties, collated evidence for the court, and distributed resources to designated communities. Insofar as these groups criticised United States’ actions, it was merely for failing to pursue this strategy with aufficient vigour.
The November 1995 Dayton Agreement ended the Bosnian phase of the Balkans war, and signalled a new, and more important phase in the tribunal’s history. Thereafter, the Western powers involved in Bosnia set about removing nationalist leaders, either by electoral means, or, in some cases, by threatening them with a trip to The Hague. More pliant candidates were installed in their place. In July 1996, for example, the Organization for Security and Cooperation in Europe, which organised the September election in Bosnia, banned Radovan Karadzic, the elected head of the Bosnian Serbs, from standing, on the grounds that he had been indicted for (though not convicted of) war crimes. Instead of complaining about this automatic presumption of Karadzic’s guilt, the agencies rubber-stamped this approach by calling for the elections to be postponed until the candidates they believed to be ‘war criminals’ had been removed from their slates and dispatched to The Hague. In June 1996, Human Rights Watch published its report, A Failure in the Making, which castigated the Nato powers for not arresting more suspects after Dayton. Again, criticism was of the ‘too little, too late’ variety.
Hundreds of organisations with some kind of human rights brief from oneperson outfits to the bigname international groups rushed into the Balkans in the wake of the Bosnia and Kosovo conflicts. Among those who joined the stampede were two organisations which are very closely linked to the United States foreign policy establishment, and which have worked alongside the prosecution to secure convictions. The American Bar Association’s Central and East European Law Initiative (CEELI), which promotes the ‘rule of law’ in the former Eastern Bloc, devotes some of its energies towards aiding the tribunal. In 1999, for example, it created a database, partly funded by the State Department, of around 2,000 interviews with Kosovar refugees, which were passed on to The Hague and back to Foggy Bottom. It has also provided funds and personnel to assist the prosecution. While independent of government, it is almost wholly reliant on funds provided by the Justice Department and the US Agency for International Development. In 1998, for instance, it received 93.9 per cent of its funds from official sources. Some might suggest that, on purely financial grounds, it was merely the Justice Department in a non-governmental guise.
In 1995, CEELI’s parent body, the American Bar Association, was asked by Secretary Madeleine Albright and Human Rights Bureau chief John Shattuck to set up a nongovernmental organisation devoted entirely to lobbying on behalf of the tribunal. Shortly after, CEELI and the Open Society Institute established the Coalition for International Justice, whose current advisory board includes human rights luminaries such as former prosecutor Richard Goldstone, Bianca Jagger and Aryeh Neier. The coalition has fought hard for sanctions against those who have not cooperated with the tribunal. It successfully halted World Bank funding to a project in Foca in Bosnia because the local authorities had not handed over seven people accused of war crimes (or ‘seven indicted war criminals’, as CEELI’s 1998 annual report dubbed them). At the same time, it proselytises on behalf of the court through outreach projects, and through its website. Prosecutions are enthusiastically encouraged. One webpage features a rogue’s gallery of the ‘UN’s Most Wanted’. Another, entitled ‘War Criminals Watch’, tracks the movements of those who have been publicly indicted (‘Mladic Spotted at Belgrade Soccer Match’ and ‘Karadzic Reported on the Move in Eastern Bosnia’). It is crude stuff, but then again, it is no cruder than Washington’s bounty prizes, or the tribunal’s ‘Wanted’ posters.
* * *
What quality of justice is handed down in The Hague? The court draws its practices from both the AngloSaxon adversarial system and the Continental inquisitorial tradition. The judges run the show, presiding over cases and hearing appeals (there are no juries, because, as an annual report explains, ‘This Tribunal does not need to shackle itself’ with the ‘ancient trialbyjury system’.) But with little precedent to guide them, the judges have had to make up the rules as they have gone along. As at Nuremberg and Tokyo, many traditional procedural safeguards have been dispensed with. There is no ban on second or thirdhand ‘hearsay’ evidence, for example, because, it is argued, judges are better equipped than juries to weigh the merits of such testimony. The troubling upshot of this, says Michael Scharf, a former State Department official, has been that ‘over ninety per cent’ of the evidence cited comes from hearsay sources. Furthermore, in cases involving rape and sex crimes, the prosecution is given great leeway by Rule 96(1), which states that ‘no corroboration of the victim’s testimony shall be required’. In other words, what the accuser says, goes.
The judgemade Rule 61 has also aroused concern. The tribunal is not permitted to conduct trials in absentia, in recognition of the controversy created by the trial of Martin Bormann at Nuremberg. But it allows practices that amount to the same thing. Rule 61, which can be invoked if a Balkan government refuses to turn someone in to The Hague, allows prosecutors to present highlights of their case against the accused in their absence, in the hope that the bad publicity will compel the authorities to hand them over. This practice is tantamount to a minitrial in absentia, but worse, because defence lawyers are banished from the courtroom (on one occasion, lawyer Igor Pantelic was instructed to hear out accusations against his client, Radovan Karadzic, from the public gallery). Such hearings have caused unease: the BBC described the hearing against Milan Martic as ‘a circus’, while Geoffrey Robertson QC describes the practice as ‘indefensible’.
In the push to condemn Balkan wrongdoers, the Office of the Prosecution wields considerable political influence. Its leader, Carla del Ponte, has the power to bring national leaders to book. In January 2001 she summoned Biljana Plavsic, the former President of the Bosnian Serb Republic, to The Hague; six months later she had also lined up Slobodan Milosevic. When her predecessor Louise Arbour won a case compelling the Croatian government to hand over General Tihomir Blaskic, she recalled that people in her office ‘stopped whining, saying there’s no political will, no one helps us’, because they suddenly released that they had ‘a huge amount of power’. This is reflected in the allocation of funds. The prosecution receives almost a third of the United Nation’s annual sponsorship of the court ($96.4 million in total in 2001). It can also expect political and financial support from America, Britain and other Nato powers and the moral and campaigning support of Western human rights organisations.
The defence is very much the poor relation at The Hague. In principle, the prosecution and defence should be placed on an equal footing, but this is negated, in practice, by the structure of the court, which rests on the tripod of prosecution, judges and registry. This arrangement grants the prosecution membership of a club from which the defence is expressly excluded. By the same token, prosecutors, judges and registry personnel enjoy the same privileges as UN officials, whereas defenders do not. (Lawyer Anthony D’Amato complained that while a prosecutor was allowed to take the UN flights from Belgrade to Prijedor to collect evidence against his client, he was given a small allowance and told to make his own way.) And while the prosecution has been set up with a coordinating office and budget, the defence does not enjoy equivalent resources. It does not get much support from governments either. Steven Kay believes that some Western politicians ‘have a massive problem’ discussing the defence. At one meeting with European representatives, ‘everyone was chewing garlic and doing the sign of the cross whenever I appeared or opened my mouth’, he recalled.
The Yugoslavia tribunal has sometimes been accused of ignoring the rights of the accused, but nothing has quite matched a controversy that has dogged its sister court, the UN’s International Criminal Tribunal for Rwanda, based in Arusha, Tanzania. On 3 November 1999, it was toppled from its human rights pedestal when the appeals chamber ordered the release of genocide suspect Jean Bosco Barayagwiza on the grounds that his ‘fundamental rights were repeatedly violated’.
Barayagwiza, founder of Radio Television Libre des Mille Collines, had spent eleven months in a Cameroonian jail without being charged. When he issued a writ of habeas corpus demanding his release, the tribunal never got around to hearing it. His first court appearance came ninetysix days after his transfer to Arusha a clear breach of his right to be seen without delay. The appeal chamber thus ruled that the prosecutor’s handling of the case was ‘tantamount to negligence’, and that his trial would thus be a ‘travesty of justice’. It ordered that Barayagwiza be released forthwith, and all charges dropped. To emphasise the seriousness of the ruling, it was tagged ‘with prejudice’ in order to prevent chief prosecutor Carla del Ponte from arresting and imprisoning him again.
The decision was a huge blow to the prosecution.
The Rwanda tribunal was set up by the Security Council in 1994. It was given the task of bringing to justice those chiefly responsible for the massacres, but it was also intended as a tool to bring about ‘national reconciliation’ and the ‘restoration and maintenance of peace’. It was mandated to do big things on behalf of the global community, and it wanted big fish to fry, even if it meant trampling over Rwanda in order to get its hands on them. In 1996 for example, the court overruled Kigali’s request to extradite Barayagwiza, Laurent Semanza and Theoneste Bagosora from Cameroon, because it wanted to bag them for itself. As a result, the tribunal currently holds several dozen prime suspects while Rwanda has been left to deal with 120,000 of their followers a situation that, unsurprisingly, has antagonised the government in Kigali. As ProsecutorGeneral Gerald Gahima points out: ‘It makes it harder to forgive the ordinary people if we don’t have the leaders here to be tried in Rwandan courts’.
Ever since the first trials in Russia in early 1997 there has been a persistent rumble of complaint about the treatment of detainees: some have been held for inordinately long periods before trial; others have been held unlawfully. In 1995, Amnesty International issued a report that highlighted these failings. It criticised the treatment of Esdras Twagirimana, who had been arrested because of mistaken identity and unlawfully held for two months without access to a lawyer. It raised concerns about the slowness in dealing with Alfred Musema, a tea factory director, who only appeared before a court, without a lawyer, six months after he arrived at Arusha. And it criticised the ninemonth incarceration of Jean Kambanda, Rwanda’s former prime minister, in a secret ‘safe house’, because it was not an officially recognised place of detention (thus removing safeguards against illtreatment and compulsion to confess). The tribunal gave these criticisms short shrift. ‘It is fashionable in some quarters to denigrate and distort the efforts of the International Criminal Tribunal for Rwanda’, it responded. ‘To the extent that Amnesty International has joined this bandwagon, the Tribunal finds it a matter of regret.’
In December 1999, the court sentenced Georges Rutaganda, a former vicepresident of the Hutu interahamwe militia, to life imprisonment for genocide, extermination and murder. The verdict followed hot on the heels of the Barayagwiza case, and was widely viewed (and welcomed) as a corrective to that fiasco. Yet there were problems with that case too. In February 1997, his Canadian lawyer, Tiphaine Dickson, filed an ‘extremely urgent’ request to the tribunal to get statements from sixteen defence witnesses living in perilous conditions in TingiTingi refugee camp in east Zaire (now the Democratic Republic of Congo). The court sat on this request for three weeks. Meanwhile Zairean forces under Laurent Kabila attacked the camp and all the witnesses fled, fourteen of them never to reappear. Dickson argued that the delay had violated Rutaganda’s right to a fair trial because it had prevented him from establishing alibis. The court expressed regret, but failed to pursue the matter.
So what has become of Jean Bosco Barayagwiza, whose release was announced so dramatically in 1999? As is the way with these things, rules were bent and deals were done. Shortly after the decision, Internews journalist Coll Metcalfe asked Del Ponte whether she was surprised by the decision. She replied:
Surprise was not the word. It was really a shock. I am convinced that he is guilty. How is it possible that he is released and there is no prosecution possible?
She decided something had to be done. ‘Immediately, I had a meeting with my colleagues in The Hague and asked if there was a possibility to make a request for review’, she recalled. In the negotiations that ensued:
[W]e discussed what issues we had. Did we have any chance for review? And we discussed the legal facts. We discussed that for hours and we didn’t make any decision right away. In the following days we discussed it again and again and we found we had a chance.
Did this ‘chance’ have anything to do with the removal of the ‘with prejudice’ tag preventing the rearrest of Barayagwiza? ‘I hope for this small solution’, she said.
I’d like them to just change this decision a little bit because the most important thing is that he goes before a court for judgment. If it’s not before the tribunal at Arusha, then it must be a national court.
As it turned out, Barayagwiza was not released from the UN prison at Arusha, and the following March, the appeals chamber further stoked the fires of legal controversy by reversing their decision. Carla Del Ponte, they said, had produced ‘new facts’ which persuaded them that violations of the rights of the accused had been less severe than they had originally believed. Barayagwiza has been boycotting his trial, which began in October 2000, on the grounds that he will not receive a fair hearing.
The Hague is the booming capital of global justice, and the Yugoslavia Tribunal will soon be joined there by a new body set up to prosecute major war criminals, the UN International Criminal Court. Because this court will be brought into effect by international treaty rather than by Security Council fiat, supporters hope that it will genuinely represent the will of the entire global community. When the landslide vote for its establishment120 ayes, 7 noes was announced at a diplomatic conference in Rome in 1998, most delegates sprang to their feet and cheered rapturously, a striking illustration of the high hopes invested to the enterprise. Not everyone expressed delight, though. The Americans had voted against it, and sat in grim silence amid these celebrations. Kenneth Roth of Human Rights Watch described the scene when the vote was announced:
As cheering broke out in the UN conference room on the Viale Aventino in Rome this past July, David Scheffer, the US ambassadoratlarge for war crimes issues … sat stonefaced, arms folded…. In favor of the court were most of America’s closest allies, including Britain, Canada, and Germany. But the United States was isolated in opposition, along with such dictatorships and enemies of human rights as Iran, Iraq, China, Libya, Algeria, and Sudan. It was an embarrassing low point for a government that portrays itself as a champion of human rights.
America’s vote was an extraordinary volteface, because it was a project that they themselves had initiated. Washington’s support for the court dated back to the midnineties, when the Yugoslav and Rwanda tribunals had proved themselves to be useful safety valves for domestic demands in the United States to ‘do something’. They had provided a highprofile demonstration of its commitment to bring human rights transgressors to book. Madeleine Albright, then Ambassador to the UN, gave the United Nations Secretariat the goahead, and an international committee was established to draw up a draft statute.
This was a model of caution. So too was the statute agreed at the Rome conference. It states that when established, the court will not try old crimes (Article 11); that all prosecutions will be vetted by a pretrial chamber (Article 15); that the Security Council will be able to veto prosecutions (Article 16); and that a suspect will only be pursued if domestic courts are unwilling or unable to do so (Article 17). Opponents of the court in the United States the John Brickers de nos jours have argued that it will maliciously hunt down American soldiers. But in fact, the combined effect of the aforementioned articles will ensure that any future William Calley (who was tried for the My Lai massacre) or future Henry Kissinger (who stands accused of Vietnamera war crimes) will be safe from The Hague.
At Rome, the United States, which pushed for a weak court under Security Council control, appeared to come into conflict with Britain, which proclaimed support for a stronger institution. There was talk of a rift between the two allies, but this speculation was wide of the mark. The United States played hardball, but Britain was just as wary of a powerful court. It was only because Whitehall was confident that Washington would hold the line against such an outcome that it was able to pose as a principled supporter of international justice. This posturing, in turn, helped to create a positive image of the project, which encouraged other countries to support it, and thus neutralised potentially troublesome opponents such as Russia and China. Whether by accident or design, the Americans and the British operated a division of labour that brought about the outcome they both desired.
So why did the United States delegates sulk in Rome? Their negative vote was mere brinkmanship, designed to wrest a few final concessions, and to mollify conservative critics at home. (President Clinton eventually signed the treaty, and it was submitted in dramatic, lastminute fashion on the day of the deadline.) Yet the diplomatic smoke and mirrors should not blind us to the court’s real purpose. America’s former war crimes supremo, David Scheffer, described it as ‘the shiny new hammer’ in the ‘civilised world’s box of foreign policy tools’. The major powers have drawn up a statute that virtually guarantees that none of their citizens will ever be prosecuted. This will leave it free to carry out its intended function: meting out punishment to alleged transgressors from the warravaged and judiciallychallenged pariah states. When it comes to global justice, it is always better to give than to receive.
In 1945, the Egyptian government warned its delegation to the San Francisco conference that the application of the principle of human rights ‘may lead to dangerous evils’, namely, the ‘unjustified interference of foreign powers’. More than half a century later, many Egyptians still see it as a stalking horse. When, in 1992, Human Rights Watch released a report recommending sanctions against the Cairo government to compel it to stop using torture, the proposal was dismissed as a typical example of Western hypocrisy. ‘Such a demand was not acceptable to the Egyptian public’, wrote Bahey el Din Hassan, director of the Cairo Institute for Human Rights Studies, because it ‘perceived that the same criterion was not applied to Israel, which has a notorious record of torture and arbitrary detention in the occupied territories’.
Egyptians have given other Western initiatives equally short shrift. When the USA’s Commission on International Religious Freedom (a body created by the 1998 International Religious Freedom Act) announced that it intended to visit the country in 2001 to investigate the plight of Coptic Christians, it was not welcomed. Prominent among critics of the trip was the Coptic community itself, which swiftly denounced external meddling in its affairs. According to the newspaper AlAhram, the head of the Coptic Orthodox Church, Pope Shenouda, stated that ‘It complicates the situation to have a foreign intruder in such a sensitive issue’. Meanwhile, Mounir Fakhri AbdelNour, a prominent Christian member of the opposition Wafd Party, led protests in Parliament against the visit, arguing that, ‘This is no goodwill tour or peace mission; it is outright foreign intervention in our internal affairs.’
They were particularly unenthusiastic about the commission’s leader, who was none other than Elliott Abrams, the American rightwinger who had spent the early eighties playing down human rights abuses, and the late nineties talking up religious persecution. To add insult to injury, he is also a fervent supporter of Israel, which he considers to be ‘the only true democracy in a region where thuggery reigns’ a sentiment that does not endear him to the Arab world. The Cairo press took the opportunity to remind their readers of the more unsavoury moments in his career, especially his part in the Irancontra scandal. It also speculated, with some justification, that the new Bush administration was using the investigation to keep President Hosni Mubarak in line over the Palestinian question and sanctions on Iraq. Abrams, who was once accused of conducting ‘Doberman pincher’ diplomacy, denounced such ‘misinformation’ with characteristic disdain.
On arrival in Cairo, the commission was granted an audience with President Mubarak, Pope Shenouda and the Muslim leader, the Sheikh of alAzhar. This diplomatic courtesy was more or less obligatory, given that the US provides the country with around $2 billion in aid every year. But when it hosted a welcome gala for politicians, clerics and advocates, the turnout was disappointing, to say the least. Press estimates of the number of Egyptian guests in attendance ranged from zero to two (‘with one of the two reported guests subsequently denying her presence’, according to a later account). Prominent among the absentees were the local human rights groups, who issued a joint statement explaining their refusal to meet the commission. The United States, they said, operated ‘double standards’ by ‘devoting attention to religious freedoms in the Middle East while supporting shameful violations of the rights of the Palestinian people’. By contrast, the Egyptians have been scrupulously evenhanded towards the Americans repudiating Elliott Abrams and Human Rights Watch with equal vigour.
The Egyptians are by no means the only people to denounce such campaigns. Sri Lankans, Bosnians, Chileans, Nigerians and many others have at various times described them as arrogant, intrusive and even imperialist. Does this criticism have any impact? Yes and no. Human rights activists are extremely sensitive to such censure, especially when it emanates from the intended baneficiaries of their work. Western leaders, on the other hand, often appear to be indifferent to the opinions of those on the receiving end of their policies. This is not because they are unusually callous or deaf to reason, but because their political priorities lie closer to home.
Politicians instinctively understand the importance of having a positive national self image and a sense of shared purpose. This has been the driving force behind human rights initiatives ever since America shaped the postwar order at San Francisco. This impulse was clearly articulated by the House Democrat, Dante Fascell, in 1981, during the early days of the Reagan administration, when he delivered a rousing call for a strong moral component in US foreign policy.
I believe that nations act in accordance with their selfimages. And the way in which we behave internationally has a very real effect not only on how we are perceived, but on how we are. We have seen too many examples in recent history of how easy it is in times of national crisis for a country to be drawn into courses of action in foreign affairs that have lost sight of human values and ended disastrously for itself and its allies. The human rights policy, in that sense, operates as a compass to ensure we stay on course. So I think it can be seen that our human rights policy is not just for others. It’s for us too.
The selfpreoccupation of the most powerful states explains the fickleness of their human rights campaigns. Victims of repression abroad are the pretext for intervention, rather than the reason for it. They thus become expendable once they have served their purpose. The list of such forgotten victims is a long one. Russian Jews, Nicaraguan Indians, Iranian Baha’is, Ethiopian farmers, Polish trades unionists, Tibetan nuns, Argentine radicals, Soviet camp inmates, Kosovar rapevictims, Chinese dissidents, Iraqi Kurds and Tutsi refugees are just a few of the groups that have had their fifteen minutes of fame. Presidents and Prime Ministers, fundraisers and relief agencies, foreign correspondents and war photographers, pop stars and catwalk models, have all beaten a path to their door. Then, when the spotlight moved on somewhere else, they were plunged back into obscurity once again. Little attention is paid to their subsequent plight.
A case in point is the Carter administration’s apparent lack of interest in the effects of its actions abroad. Although officials often proclaimed their commitment to human rights, and repeatedly polled Americans about their opinions on the issue, they maintained a deafening silence about the effects of their policies in the Eastern Bloc and Latin America. This was partly because there was not much to write home about (the Country Reports indicate that the situation stayed the same or got worse in most targeted nations). But it also highlighted an unpalatable truth: the administration was conducting a ‘foreign’ policy whose impact on foreigners was largely incidental.
It fell to a handful of academics to conduct a proper postmortem on the consequences of Carter’s actions overseas. Studies carried out in the eighties were generally tentative or negative in their conclusions. A 1981 Congressional Research Service report, written by Stanley Heginbotham, observed that despite some marginal improvements in a few countries, the record abroad in the late seventies was ‘hardly encouraging’. A 1989 study by David Forsythe suggested that while sanctions may have ameliorated abuses over time, they usually provoked a demonstrable ‘negative reaction’ when first imposed. And in 1987, David Carleton and Michael Stohl concluded that in the years 1976 to 1983, there was at best, ‘no statistical relationship’ between US aid and human rights, and at worst, ‘there [was] a significant negative relationship; that is, the more abusive a regime, the more aid received’.
It would be easy to put this selfserving behaviour down to some kind of government conspiracy a school of thought summed up by Barry Levinson’s 1997 film Wag the Dog, in which shadowy fixers divert public attention from a White House sex scandal with a bogus madeforTV war. This satire struck a chord with those who had grown cynical about the way that Bill Clinton and other Western leaders appeared to pick and choose (not to mention exaggerate or invent) their causes to suit their own requirements. But while one should not underestimate a propensity to conspire, the human rights impulse cannot simply be dismissed as a con trick. Something more complex and less calculated is going on. Heads of government believe that their role is to promote virtue within the limits imposed by political practicalities. So when they spout homilies about dignity and justice, it is rarely an entirely empty gesture. As Fascell said, ‘our human rights policy is not just for others. It’s for us too.’
The essence of this modern political phenomenon is perfectly captured by a story straight from the heart of middle America. In 1998, Barbara Vogel’s fourthgrade class at the Highline elementary school in Aurora, Colorado, started to raise money to free slaves in Sudan. It all began after they had completed their history unit on American slavery. ‘I had taught my children that . . . chattel slavery was a thing of the past’, she recalled. But then she read an article about Sudanese slaves in the Rocky Mountain News, and realised that ‘I had taught them wrong’. When she read the piece to her pupils they were moved to tears, and were inspired to raise $1,000 by collecting pennies in a jar. Later, a feature on the CBS Evening News and an article in Time brought fame and more money. Thus began the American children’s campaign, STOP Slavery That Oppresses People. Barbara Vogel said: ‘We call ourselves abolitionists, after great Americans like Harriet Tubman and Frederick Douglass.’
In 2000, Jesse Helms invited Barbara Vogel and her class to address the Senate Committee on Foreign Relations. The hearing was very different from the usual parade of bureaucrats, academics and lawyers. The children delivered speeches, and the adults were not ashamed to cry.
Ms Vogel: Can I still teach them that our government stands for fight and for freedom? Can I still teach them that our country stands for principles more than practicality?
The Chairman: There is some Kleenex for you.
Ms Vogel: Thank you. I promised I was not going to do this. Can I still tell them that we are the home of the brave?
Vogel described to the Senators a trip she had made to Sudan, where she had seen for herself some 4,300 women and children who had ‘just been redeemed from slavery by the brave rescuers at Christian Solidarity International’. Her account gives a revealing insight into the Western humanitarian mentality.
It was in Sudan that I realized that I was not the rescuer. I was there as a representative of a nation that needs its own rescuing. The enslavement of black women and children in Sudan is not merely a tragic byproduct of some distant conflict. It is a direct challenge to our Nation. Will we squander our freedom for frivolous pursuits? . . . Or will we triumph over America’s own terrible legacy of slavery by extending emancipation to millions who remain in bondage? . . . It may sound odd, but I believe the enslaved women and children of Sudan can be the key to our hope and our own redemption.
Vogel found salvation among the dispossessed of Sudan, and in the process, she stumbled upon the fundamental appeal of all human rights campaigns: they hold out to the benefactors the promise of redemption. Small wonder, then, that governments are so keen to champion the cause of the persecuted. When they side with the angels, they acquire a moral authority. They stand for more than a tax cut or a soundbite: they stand for a united society, and for a whole way of life.
The American poet Archibald MacLeish, who occupied various government positions during the forties, and who attended the consultants’ meeting at the San Francisco conference, once said:
There are those who will say that the liberation of humanity, the freedom of man and mind, is nothing but a dream. They are right. It is. It’s the American dream.
Today human rights are no longer just the stuff of dreams; they have become the lingua franca of modern political discourse. They allow politicians to occupy the moral high ground by day and sleep the sleep of the just by night. In the aftermath of September 11, no one can be sure exactly what the immediate future holds. (At the time of writing, antiterrorism is the immediate response.) But one thing can be stated with confidence. Nothing else offers the positive moral appeal of human rights. In the absence of a more powerful alternative, the idea looks set to occupy a prominent place on the West’s agenda for some time to come.