The trial of Slobodan Milosevic is a step in the right direction. But without a show of political will, efforts to build an international criminal court will be jeopardized, says Carla Del Ponte –

On February 12, 2002, for the first time in modern history, a head of state was brought before an international tribunal to answer charges relating to genocide, crimes against humanity and violations of the laws of war. The trial of Slobodan Milosevic in The Hague marks a landmark development in international justice. If we are to build on this crucial precedent, the full backing of the international community is vital.

When Milosevic was indicted in May 1999, he was still the president of the Federal Republic of Yugoslavia. Previously, his status of head of state might have, by itself, exonerated him from criminal responsibility. But on May 25, 1993 the UN Security Council decided otherwise when it adopted the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY). This states, among other things, that the accused cannot be relieved of criminal responsibility or punishment because of their official position. Not even the international jurisdictions established after World War II in Nuremberg and Tokyo tried a head of state. Concern over Japan’s political stability, for instance, meant that the occupying powers never tried the country’s leader, Emperor Hirohito.

Now, however, the international community has a new framework which could, in principle, wield universal jurisdiction: the International Criminal Court (ICC). The idea is that the ICC will build on efforts of such tribunals as the ICTY. In contrast, the latter only has jurisdiction over crimes committed in the former Yugoslavia, and is an ad hoc structure, like its sister-tribunal based in Arusha, the International Criminal Tribunal for Rwanda.

So far, the ICC, which also has jurisdiction over heads of state, has authority over almost 100 states that have ratified its statute. This says that heads of state, like other individuals, can be held accountable before international criminal jurisdictions for three broad categories of crimes: war crimes, crimes against humanity and genocide.

War crimes, or grave breaches of the laws or customs of war, include grave breaches of the 1949 Geneva Conventions, and violations of the laws or customs of war. These provisions include acts such as: wilful killing; torture or inhuman treatment; employment of weapons calculated to cause unnecessary suffering; attacks on undefended towns, villages or buildings; and plunder of public or private property.

Genocide, according to the ICTY, refers to criminal acts such as: killing members of a group; causing serious bodily or mental harm to its members; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group, committed with the intent of destroying, in whole or in part, a national, ethnic or religious group.

Individuals who have held positions of authority, such as heads of state or ministers, are not always directly involved in the physical perpetration of the crimes. However, they can be held criminally responsible if they have planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of any of the above crimes.

Criminal responsibility also extends to any superior, including a supreme commander, who knew or had reason to know that a subordinate was about to commit such acts or had done so if the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators in question.

This type of responsibility is often referred to as command responsibility or superior responsibility. Milosevic was charged with genocide both for his direct responsibility and his responsibility as a superior. Recent developments in international criminal law are significant in breaking with a tradition of granting criminal immunity to heads of state and other senior officials. Nearly all countries have constitutional provisions granting immunity to heads of state, sometimes even for life. Attempts at the domestic level to prosecute current or former heads of state of other countries, as in the case of Augusto Pinochet, who faced extradition proceedings in the United Kingdom brought by Spain, were, for a variety of reasons, unsuccessful.

Burden of proof

Ideally, the ICC won’t have the same limitations. The hope is that the court should thereby be able to deter war crimes, crimes against humanity and genocide. But for this deterrent effect to work, the court needs to be backed by strong political will.

The problem is that to date, three out of five permanent members of the UN Security Council – China, Russian Federation and the United States – have not ratified its statute. Nor have such important states as Japan and India. So, to survive, the ICC will largely depend on the political – and financial – support of Europe. The states committed to the ICC’s mandate should insist that no government undermines the work of this court. They should make it clear that it is in the interest of the international community as a whole to have an efficient deterrent for these atrocious crimes.

At the same time, it is important that the court quickly demonstrates its ability to prosecute high-level cases. Ministers and heads of state are sometimes inclined to shift the blame to their staff for their own errors, if not for their own crimes. The court will have to prove that it can indict not only subordinates but also high-level perpetrators, which, of course, imply more difficult and sensitive cases.

Finally, the court will have to prove that it is truly independent from any political pressure. Even when they are not directly concerned with an investigation, powerful states worry when international courts investigate crimes committed by counterparts or even allies. Maintaining the same standards for everyone is always a key measure of success for any international institution. This means that supporting the court might create enemies.

It is to be hoped that Milosevic’s trial will make heads of state realize that they might have to respond tomorrow for deeds done today. Ten years ago, when the siege of Sarajevo led to the death of civilians every day, nobody seriously anticipated that Milosevic would one day have to face judges to answer these charges. July 2005 will mark the 10th anniversary of the Srebrenica genocide, the worst crime committed on European soil since World War II, and one of the worst committed in the world since then, only a year after the genocide in Rwanda. It is a disgrace to the international community that some of the perpetrators, including Ratko Mladic and Radovan Karadzic, are not yet facing justice.

However, it is a victory for mankind that those at the most senior levels can longer expect to be exonerated from their criminal responsibility on the basis of their former positions. With a growing range of national and international instruments, it will become increasingly difficult for war criminals, whatever their level of responsibility or position, to escape justice.

Those states and governments interested in promoting a world guided by the rule of law rather than brute force should be keen to ensure that all leaders understand there is no more impunity, even for heads of state. They can neither avoid responsibility for crimes, including terrorist acts, committed against other countries nor for those against their own citizens. True justice is devoid of double standards.

Carla Del Ponte
Carla Del Ponte is the prosecutor of the International Criminal Tribunal for the former Yugoslavia.