By Holbrook, Jon
The Independent (London, England)
Nato snatch squads are proving to be an effective weapon in the battle to make war criminals answer for their crimes. Over the weekend the SAS seized another Bosnian Serb, General Dusko Sikirica, 36, who was in charge of a PoW camp where 140 Croats and Muslims were machine-gunned to death. He will be now put on trial at The Hague, where he faces charges of genocide. The most notorious criminal from the Bosnian war, Arkan, was assassinated before he could be brought to trial.
The hunting and punishment of war criminals has become a passion of the human rights movement and a near obsession of many governments. The International Criminal Tribunal for Yugoslavia was set up in 1993 and its sibling the International Criminal Tribunal for Rwanda followed a year later. In July 1998, 125 states voted for the establishment of a permanent International Criminal Court.
Then Senator Pinochet's bad back caused him to make one trip too many to his Harley Street doctor and the House of Lords ruled that those accused of practising torture could not claim immunity from prosecution by a foreign state.
The human rights lawyer Geoffrey Robertson, in his book Crimes Against Humanity - The Struggle For Global Justice, expresses forcefully the values of the human rights movement. Robertson is well qualified in this area, having appeared as counsel in many landmark cases and having conducted missions to South Africa and Vietnam on behalf of Amnesty International.
Robertson's argument is that some crimes are so evil that they concern us all. They offend our common humanity. If nothing is done humanity is devalued. The international community is obliged to act and the full force of the law should be brought to bear on miscreant statesmen. Where states are unwilling to act against their own human rights abusers, foreign states or international bodies are obliged to step into the breach. Amnesties and diplomacy are out; prosecutions and direct justice are in.
From the perspective of a lawyer, Robertson's arguments are understandable. If a man commits murder we track him down, prosecute him and sentence him when found guilty. We have institutions in place to ensure that this process is effective. Criminal justice deters and corrects evil behaviour and it assuages the anger felt by the victims of criminal behaviour and their families and friends. Hallmarks of criminal justice are its objectivity, universality and punitive nature. Criminal justice does not yield to political expediency.
Robertson, and much of today's human rights movement, seeks to transfer these ideals to the international stage. Yet in the process the key issue of consent is being ignored. A nation's criminal justice system requires the consent of the population. A criminal law exists precisely because it marks a boundary beyond which behaviour becomes unacceptable to the population.
But the war crimes tribunal that has been set up in The Hague for the former Yugoslavia lacks the consent of the people of that region. Croats, Serbs and Muslims do not agree on what constitutes a war crime in the context of the civil war in Bosnia. They each see themselves as having engaged in a just war that has been fought bitterly and savagely by all protagonists. In such circumstances, the passing of criminal sentences on those indicted by the Hague court is seen as an imposition by outside forces who understand little about the complex issues governing events in the Balkans.
The criminal law is not being imposed as an expression of the will of the people; it is an expression of the will of the United Nations. If it had been otherwise the people of Bosnia could have set up their own war crimes tribunal and would not have needed the UN to create an institution 650 miles away. …