Monday, March 13, 2006

The Failure of the ICC

Some friends and I were exchanging notes, and we discused the possibility that Slobodan Milosevic's death was part of a conspiracy. I don't usually spring for conspiracy theories, but we did discuss that the International Criminal Court having a motive: Milosevic's defense had made a mockery of the proceedings. My friend outlined some of the problems with the ICC:

  1. Jurisdiction/sovereignty: This is basically a question of who has power over the defendant. The Serbs insist that Milosevic was theirs to try, and even his bitterest opponents in that country are angry that he was removed to the Hague. The essence of the jurisdictional issue is that Under Yugoslav Federal law and Serbian law, which govern the person of Slobodan Milosevic, the man and the Head of State, there is no call whatsoever for the ICC to try him because the legal institutions exist inside the country to judge the former President, if and when a case is made against him, which to date has not been the case. Further, Serbia, at the time of his alleged crimes, did not recognize the ICC.
  2. Serbian Law: The ICC considers itself to be in the right, but under Serbian law, the decision to take Milosevic to the Hague for trial constitutes kidnapping, since it was not agreed upon by a majority of the Serbian cabinet ministers. Thus, even if the ICC has jurisdiction by Milosevic's presence, it is only because he was forcibly brought before the court.
  3. Evidence: Simply put, there isn't any. Of the over 2000 people initally slated to testify against Milosevic, all but 5 have refused, partially over the sovereignity dispute, and the testimony of those 5 is both weak and unreliable. There is no paper trail or any sort of documentation that links Milosevic to any of the alleged crimes. It's literally Milosevic's word against the prosecutors.
  4. Lack of a Jury: This is one of the United State's major complaints, and Milosevic has hammered it. The ICC doesn't have uses a three judge panel to reach decisions. This is inherently fraught with conflict of interest, because if the ICC "loses" such a high profile case it will be the laughingstock of the world, and will never approach legitimacy. But inherent in that conflict, no fair trial was really possible for Milosevic.
  5. Legality of the Court: This is a finer point of law, but was Milosevic's main argument, which the court had no answer for. Milosevic claimed that the ICC had no legal basis to hear his (or any) international case. The judge interpreted that as a question of jurisdiction, but they are not the same thing. Jurisdiction concerns the power of the court over the defendant. I could set up the court of "plezercruz" in my back yard with Jon holding a gun as my bailiff, and, if you stumbled into my back yard, I could declare jurisdiction over you because I CAN force you to comply. But it certainly wouldn't be "legal." Jurisdiction is about power, not right.

    Legality concerns whether the court actually is an agent of law in the first place. Milosevic's argument was, basically, that since the UN Security Council itself had no right or ability in law to sanction him personally, it was impossible for that same council to create a court to do that for them. Courts are agents of the sovereign, and the UN has no sovereignity by defintion. By his argument, the ICC had no more right to try him than I have of trying you in my backyard. This argument crippled the ICC. It had no answer for it.

    Milosevic asked the ICC to seek a ruling from the International Court of Justice (a non-criminal UN court which settles inter-sovereign disputes and is nonbinding) as to it's own legality, but the ICC basically ignored his request, despite amicus briefs from all over the world urging them to do so, probably because the ICC likely has no legitimacy in law.

Overall, Slobodan Milosevich managed not only to derail his own prosecutors, but shook the basic foundation of the ICC itself. If not for Slobodan Milosevich's glaring humiliation of the ICC, Saddam Hussein might have been sent to the ICC for judgment. Instead, the world has now seen that the ICC has deep internal legitimacy issues, and it is unlikely that any of Iraq's 'war criminals' will be sent there.

From that perspective, indeed, there seems to have been a motivation to hasten Milosevic's departure from the mortal realm.

(Hat-tip: plezercruz)

[] []

1 comment:

Anonymous said...

Thanks for this thoughtful article. Words like yours never made it into the English-speaking press.

Who pays for the ICC? And the judges?