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November 19, 2001
On June 28, 2001, exactly ten years after the outbreak of war in Slovenia
and Croatia, and on the fated Serbian holiday of Vidovdan (marking the
anniversary of a battle the Serbs lost in Kosovo in 1389), former Yugoslav
leader Slobodan Milosevic was extradited to The Hague. He now faces
an international criminal tribunal, the first former head of state to
do so.
For the international human rights community, this outcome marks a
moment of triumph. Milosevic will stand trial before the International
Criminal Tribunal for the Former Yugoslavia (ICTY) for his campaign
of terror against the ethnic Albanian population in the Serbian province
of Kosovo, as well as for genocide and war crimes in Bosnia. Had he
remained in Serbia, Milosevic would most likely have faced charges of
gross political corruption, embezzlement, and election fraud--a far
cry from crimes against humanity.
The Milosevic case sends a powerful message to other would-be tyrants
that they, too, could be held accountable for their crimes. Built on
long-standing jurisprudence and still-developing precedent, the trial
of Milosevic provides a fillip to the movement toward strengthening
international law.
Yet some find this a worrying trend. In a recent Foreign Affairs,
Henry Kissinger suggested that there is something wrong with empowering
international bodies such as the ICTY with broad mandates that could
go so far as to indict U.S. officials involved in the NATO air campaign
in Kosovo. He also objected to the general idea that "heads of
state and senior public officials should have the same standing as outlaws
before the bar of justice."
The current trial of Milosevic suggests that states are capable of
surrendering some of their sovereign rights to see justice occur under
UN auspices. But what about the principle of universal jurisdiction,
which has been invoked in the cases of Augusto Pinochet and the Rwandan
nuns accused of complicity in genocide? Some could argue that the power
to indict anywhere gives too much authority to rival states, taking
away the right of the states in which the crime occurred to mount bona
fide prosecutions or grant pardons where appropriate.
Differences in opinion over international justice and jurisdiction
speak to an even more fundamental ethical question. Most would agree
that human rights violators should be held accountable. But which policy
would serve to implement this vision: one that encourages countries
to pursue justice according to their own established traditions and
laws, or one that promotes international norms and allows intervention?
The United States and the international community may face this question
again if Osama bin Laden and members of the Al-Qaeda network are apprehended.
Where should the alleged terrorists be tried: American courts, the courts
of the country where they are held, an international tribunal, or a
Nuremberg-style tribunal formed by several countries? Since the law
provides solid legal arguments for various "correct" answers,
the ultimate policy choice will inevitably invoke moral and political
argument.
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