War Crimes: The “New Era” Looks Like the Old

Now that the trial of former Yugoslav President Slobodan Milosevic has begun, some have heralded his prosecution as the dawning of “a new era of international accountability,” further evidence of “the globalization of justice.” During the first week of the trial, prosecutor Carla del Ponte insisted that his was not a political trial. Milosevic countered with a challenge to the International Criminal Tribunal’s legal legitimacy.

Bubbling beneath the surface of this dispute is a fundamental clash between the competing claims of national sovereignty and universal human rights. If we have entered a new era of war crimes accountability, then the rules have been applied selectively. During the 1990s, the United Nations, backed by a well funded human rights industry, pushed for an new international order based on an expanded set of rules. Alas, the rules have been applied only to some nations and some people, leaving the new era of war crimes accountability more a claim than reality.

The alleged new era began when courts in The Hague, Spain, Belgium and the United States challenged the sanctity of national sovereignty by considering cases against sitting national leaders such as Slobodan Milosevic, Israel’s Ariel Sharon, Chile’s Augusto Pinochet, former Secretary of State Henry Kissinger, Cuba’s Fidel Castro and others. The irony is that as western human rights groups and lawyers refined and expanded new codes of international criminal law, their leaders could not summon the resolve to act forcefully to stop mass atrocities in brutal civil wars in the former Yugoslavia, Rwanda, East Timor and Sierra Leone. Throughout the 1990s, the basic distinction between soldiers and civilians all but disappeared in places such as Sarajevo, Kigali, Dili and Freetown.

Even with civilians falling victim to genocidal violence, there was little interest in intervening militarily. Instead, the United Nations promised the victims post-tragedy justice in the form of war crimes trials. Since 1993, the United Nations has spent more than a billion dollars to try fewer than fifty people before tribunals in The Hague and Arusha, Tanzania. However, the application of justice has been selective and uneven, proving once again that the rules do not apply equally to all.

Nearly twenty years after the Khmer Rouge killed 2 million Cambodians, the United Nations began negotiating with Cambodian Prime Minister Hun Sen over a trial of the surviving Khmer Rouge leaders. After a four years, the United Nations announced in 2002 that it would not participate in a trial for the Khmer Rouge leaders because “the Cambodian court would not guarantee independence, impartiality and objectivity.” Many western human rights advocates praised the decision as an example of the United Nations standing its ground with integrity.

After the Vietnamese toppled the Khmer Rouge in 1979, neither the United Nations nor the Carter administration supported efforts to try the Khmer Rouge leaders. The United States voted repeatedly, in the 1980s, to permit the genocidal regime to retain Cambodia’s seat in the U.N. General Assembly. Although he had been sentenced to death in absentia in a 1979 show trial, Khmer Rouge leader Ieng Sary served as Cambodia’s representative at the United Nations.

Ultimately, the Khmer Rouge was not defeated by the United Nations or the long arm of “universal jurisdiction” but rather by a brutally Machiavellian series of political moves undertaken by Hun Sen. Amnesty was the price of peace in Cambodia. Over the objections of western governments and human rights groups, Hun Sen granted amnesty to Ieng Sary and other Khmer Rouge defectors in 1996 and 1997. Once again, “universal jurisdiction” gave way to national sovereignty.

When the United Nations recommended holding the Khmer Rouge war crimes trials under its auspices in a third country in 1999, Hun Sen vetoed the plan. The Cambodian strongman argued bluntly that the fate of the Khmer Rouge leaders was a political question, not a legal one: “If the lawyers have evolved and changed both in morals and in politics I think that they should end their careers as lawyers and work in politics.”

The double standard of contemporary international law also became obvious after a bloody civil war in Sierra Leone. After Foday Sankoh, leader of the infamous Revolutionary United Front (RUF), was captured by civilians in 1999, the United Nations promised Sierra Leone a war crimes court. Although the United Nations has established a tribunal for Sierra Leone, it has yet to try Sankoh. The court’s budget has been cut from $114 million to $57 million.

After the end of the bloodiest century in human history, the “international community” has grown increasingly accepting of the horrors suffered by its most powerless and politically insignificant members. In the long shadow of Sept. 11, 2001, with America’s al-Qaida prisoners facing traditional military tribunals, triumphant claims about “the globalization of justice” and “universal jurisdiction” sound increasingly hollow. If Slobodan Milosevic’s extradition and trial marks the dawning of “a new era of international accountability,” then it looks incredibly similar to the previous era.

Peter Maguire is the author of "Law and War: An American Story" (2002) and a writer for the History News Service.