Two case studies: Bosnia and Darfur
I can't help wondering if President Omar al-Bashir of Sudan was watching television yesterday as the former Bosnian Serb leader Radovan Karadzic made his first appearance in the dock at the international war crimes tribunal in The Hague.
Did he imagine that one day he might be sitting in the dock as well? Did he try to imagine what it might feel like, listening to a sombre-voiced judge read out a list of alleged crimes, beginning with that most spine-chilling word: genocide?
Frankly, I doubt it. But perhaps he should have. After all, Radovan Karadzic evaded capture for more than a decade and by all accounts was living an undisturbed life behind that huge white beard and over-sized glasses until a shift in the political weather in Belgrade led to his arrest 10 days ago.
Who knows what changes there might be in Sudan over the coming decade? The point is that when it comes to prosecuting alleged war crimes, politics is all. But the case against President Bashir, charging him with three counts of genocide and five of crimes against humanity arising out of the conflict in Darfur, will proceed only if the UN security council gives the nod.
In the small hours of this morning, the security council voted to extend the mandate of the joint UN/African Union peacekeeping force in Darfur for another year. But it also "noted a request from the African Union for the council to use its power to suspend [the] indictment", and further noted that some governments intend "to consider these matters further." If I were President Bashir, I think I'd find that quite encouraging.
There is, as I've discussed before, an intense debate under way among the people who think about these things about whether the priority should be to bring peace to Darfur or to prosecute those responsible for the violence. The Tanzanian ambassador to the UN pointed out on the programme last night that in Bosnia, the peace deal came many years before the arrest of Mr Karadzic (although not, as it happens, many years before the issuing of the indictments against him).
And there's another question being asked too, especially in the responses to what I've already written here about all this. If you prosecute Radovan Karadzic and Omar al-Bashir, why not, for example, George W Bush and Tony Blair, for their alleged responsibility for the many thousands of deaths in Iraq? Is it true, as many bloggers complain, that only the losers ever face prosecution?
History, it's often said, is written by the victors. (When Churchill was asked why he was so sure that history would judge him kindly, he replied: "Because I shall write it.") Does the same go for justice? If the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia are both in effect organs of the United Nations, does it inevitably follow that they will be "guided' by the balance of power at the UN?
I don't think anyone is claiming that the way the system currently works is perfect. Perhaps the best that can be said for it is that it is better than nothing. Because if we agree that heinous crimes committed by political leaders should not go unpunished, what alternatives are there?
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The threat of punishment will keep a person like Mugabe clinging to power at all costs. Idi Amin found sanctuary in Saudi Arabia and left.
Does one's culture call for vengeance or for results? No, we do not all agree that crimes of politcal leaders should be punished!.
It is argued that it is better to let those possessing power in the Security Council have impunity while prosecuting those who can be vanquished and that this will serve as a lesson to others.
Such dilemmas could be overcome if we teach our children tolerance instead of religious tribalism and internationalism instead of nationalism.
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Xie-Ming
We have been discussing this on Mark Urban's blog and I don't want to labour the point but there are questions relating to rules of engagement and decisions made in the field. If, when a war occurs, rules of engagement are set which, from the outset make it clear that the Geneva Convention shall at all times be adhered to and events subsequently occur that breach the convention, it is reasonable to argue the contravention was an operation decision. The political leadership will have a defence and a successful prosecution is unlikely.
Where the political leaders have effective command and control, it is much easier to trace culpability back to the top. I mention this not because I disagree with you but because a major consideration when deciding whether to prosecute someone for anything is whether there is a reasonable chance of success.
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#2
Politically, the lowest rungs on the military ladder are offered as scapegoats, if anyone is to be offered.
From the standpoint of legal tactics, one also wants the evidence of the little fish, in case one would go after the bigger fish.
The rapid changes and special US legislation show that the Geneva Convention was circumvented and not applied by the Bush administration.
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#3 - Xie_Ming
Maybe so but you are making my point for me. Where is the irrefutable evidence, proof beyond reasonable doubt. It simply is not there.
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