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Wednesday, 4 July, 2001, 17:57 GMT 18:57 UK
Analysis: International court prospects
bbc graphic
As the trial of former Yugoslav President Slobodan Milosevic gets under way in The Hague, the BBC's Michael Gallagher investigates whether it will ever be possible to set up a permanent international court to try alleged human rights abusers.

Slobodan Milosevic is in the dock - the first person to be indicted for crimes committed while a head of state. Many see it as an important precedent.

Edgar Chen, a researcher for the Coalition for International Justice campaign - says it is now only a matter of time before others accused of serious human rights abuses are brought to trial.

"Efforts are currently under way in East Timor, in Sierra Leone and in Cambodia," he says. "In East Timor there are UN-supervised courts to try serious crimes - that is, crimes against humanity and war crimes.

"In Sierra Leone, a war crimes tribunal has been established under a UN Security Council resolution for a mixed hybrid court."

Limited powers

But it has taken years to get this far and even the keenest supporters of international jurisdiction admit that applying it to the accused is usually a difficult affair.

Mark Ellis, executive director of the International Bar Association, says future success depends on the level of support from individual states.

Killing fields
Perpetrators of Cambodia's genocide are under investigation
"The Hague tribunal has no authority to go out and arrest any individuals," he said.

"They can indict but that's about as far as they can go until the states co-operate and transfer indicted war criminals to the jurisdiction.

"So, much of what will happen will depend on the co-operation of various states and that in turn will determine whether or not this whole concept of international law will in fact hold firm."

US fears

Those countries involved in any future atrocities may argue that extradition of their nationals is unpatriotic and even treacherous. So, regardless of indictments, it is possible that trials for crimes against humanity will remain rare unless there is a change of regime.

And political interference in the justice process doesn't only come from so-called rogue states.

The idea for a permanent court to try human rights abuse suspects came to fruition three years ago when 120 countries voted to establish it.

The hope is that, with so many states involved, there will be nowhere for international criminals to hide from extradition.

But the US fears that this might encourage malicious charges against its own citizens.

"The US essentially says that creating this international criminal court gives too much discretion to the prosecutor," says Mark Ellis.

"It says there are only vague definitions of crimes, and that the court provides an opportunity for any signatory state to trigger an investigation into an individual."

In short, the US (plus China, India and others) wants to retain governmental control over applying justice to its nationals.

And some prominent US observers like former Secretary of State Henry Kissinger fear that justice without borders may obstruct foreign policy too.


He worries that in future the West and its allies may have to think twice before pursuing their legitimate national interests for fear of being indicted. Until all such sceptics are on board, says Mark Ellis, the international court will be ineffective.

Even if an international court is established, will this be the answer to crimes against humanity? Some people think not.

Henry Kissinger opposes an international criminal court
They say the ideal is always for the affected countries to deal with such problems themselves.

Human rights lawyer Professor Christine Chinkin says unless people can come to terms with their own country's problems, there is no hope of wounds healing.

And she even advocates letting some killers go free.

"A lot depends on what the amnesty actually is," she said. "If it is just a blanket amnesty given to everybody without further inquiry, I think it does very little for any future reconstruction of society.


"But where you have an amnesty that is coupled with some sort of truth process - with a requirement that people admit their guilt and involvement - then it may be more effective."

The most obvious model is South Africa, where some of those responsible for atrocities during the apartheid years were spared any trial provided they owned up to their past and sought reconciliation.

This, like all the initiatives so far tried and suggested, was experimental.

If and when the principle of international jurisdiction becomes established, it is still likely to be years before the potential difficulties are overcome.

See also:

04 Jul 01 | Talking Point
Is it time for a world court?
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