The war crimes trial dilemma

This piece of mine appears in Thursday's edition of The Australian.

Neil Clark: Shabby trial a loss for Saddam Hussein's victims
Those accused of war crimes should face an international court that is blind to nationality and impervious to political pressure
January 04, 2007

"ONCE again the more faint-hearted are beset with doubts and anxieties. But we can feel confident that when the smoke has rolled away from the battlefield of controversy, it will be realised that the charge was true and the prosecution fairly conducted."

The words could easily have been uttered by a White House spokesman seeking to defend the trial in Baghdad of the late Saddam Hussein. They were in fact spoken 70 years ago by the British Labour MP Denis Pritt after the conclusion of one of Joseph Stalin's show trials. The passage of time has not been kind on Pritt's judgment, and neither, according to human rights groups, will it be to those who reached a similarly upbeat conclusion about the trial of Hussein.

"It has been a shabby affair, marred by serious flaws," says Amnesty International. For Human Rights Watch, the trial was a lost opportunity to give a sense of the rule of law, and a loss for the victims in that the trial and verdict are unlikely to stand the test of time. In the view of the International Centre for Transitional Justice, proceedings fell short not just of international standards but of standards set by the Iraqi Government.
Human rights groups and other critics of the trial have argued that instead of being tried in Iraq, Hussein should have been brought before an international tribunal at The Hague, as former Yugoslav leader Slobodan Milosevic had been. But can we be sure that a trial outside Iraq would have been any fairer?

Our experience of the workings of the International Criminal Tribunal for the Former Yugoslavia (ICTY), and in particular the trial of Milosevic, suggests not.
The four-year-long proceedings, which ended with the death of the defendant, breached several important legal principles that underpin the concept of a fair trial. Hearsay evidence was allowed, as was anonymous testimony. There was blatant political interference: former NATO commander Wesley Clark was allowed to give his testimony in private, with Washington able to apply for removal from the public record of any parts of his evidence that it deemed to be against US interests. Most disturbing of all was the way judge Richard May dismissed as irrelevant the claim by an important witness that a written statement he had made implicating Milosevic had not only been falsified and embellished, but had been extracted from him by treatment legally amounting to torture.

In truth, the ICTY has proved no more a satisfactory organ in delivering justice than the hybrid body the UN established in East Timor in 1999, which was shut down six years later. The UN tribunal, made up of domestic and international judges and prosecutors, was scathingly described in 2002 by David Cohen of the War Crimes Studies Centre at Berkeley as "disorganised, understaffed, vulnerable to local politics" and featuring "a defence unit that is unfairly outgunned by the prosecution". Because of the limitations of the tribunal's powers to extradite indictees from Indonesia, no senior suspects from the Indonesian army stood trial. Indonesia's domestic ad hoc trials of those accused of war crimes in East Timor have proved equally unsatisfactory.

Unsurprisingly, recent experiences of war crimes trials have led some to conclude the whole concept of international justice is inherently flawed. All trials of defeated political enemies are invariably unjust, says John Laughland of the British Helsinki Human Rights Group. It is the very principle of such political trials which is at fault, not merely the manner of their conduct. But although constructing a workable and just system of international justice is problematic, we do have one historical model which can point us in the right direction.

The trial of Nazi leaders at Nuremberg, while still open to the charge of being victors' justice, nevertheless met important requirements that the trials of Saddam and Milosevic did not. For a start, there was no dispute as to the court's legality. Germany's unconditional surrender led to the transfer of political authority to the Allied Control Council, which had sovereign power over Germany and could legally choose to punish violations of international law and the laws of war. And although the London Charter of August 1945, which established the Nuremberg Tribunal, restricted the trial to "punishment of the major war criminals of the European Axis countries", the Allies acted throughout in accordance with international law. Most important of all, Nuremberg delivered a judgment that we would all do well to remember, namely that to initiate a war of aggression was the supreme international crime, differing from other war crimes only in that it contained within it the accumulated evil of the whole.

Sixty years on from Nuremberg, supporters of international justice pin their hopes on the International Criminal Court that came into existence in July 2002. There are, however, two major stumbling blocks to the court proving to be an effective body. First, although the court was set up as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes and the crime of aggression, its jurisdiction over the crime of aggression has been postponed until such time as the state parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.

Second, the world's most powerful country, the US, refuses to submit to the court's jurisdiction.
It's revealing that the court, despite receiving close to 1700 communications about alleged crimes in 39 countries, has so far opened an investigation only in three cases, all involving African states. Surely we can do better than this.

In order for genocide, crimes against humanity, war crimes and crimes of aggression to be properly punished, what is needed is a well-funded, permanent international court that delivers justice regardless of the nationality of the perpetrators and extraneous political pressures. That, of course, means the leaders of the world's most powerful nations must accept that they too may have to answer in a court of law for their actions. Whether that is a utopian dream or an achievable ambition, only time will tell.