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On the Creation of an International War Crimes Tribunal for the Former Yugoslavia

From Mani tese, July 1994
Berlin, Monday 12 December 1994: the fourth and final day of the hearings, in Schönberg Town Hall, of the International Tribunal entrusted with trying the violations of international conventions on refugees and the right to asylum.

The president, François Rigoux (from the Catholic University of Lovanio) reads the sentence that finds the member states of the European Union and of EFTA guilty of repeated and systematic violations of human rights sanctioned by international law. He finds the states responsible for the violations committed by their bodies and functionaries and he declares that the injured parties have the right to adequate compensation. In the enlarged grounds for the sentence, a dozen uncontested sources of international law (UN conventions and declarations, international protocols and agreements) were cited along with their dates and ratification.
An attachment to the sentence proposed twenty-one measures and reforms which could better guarantee the respect of the rights which had been violated. Amongst the witnesses on behalf of the prosecution, led by the British lawyer Francis Webber, were the Macedonian gypsy Tair Krasnic, the Kurd Ibrahim Doruk and the Colombian Clara Eugenia Valencia-Guerrero: all people who recount their odysseys as refugees struggling with the European states which basically tried to prevent them from exerting any rights which they had. The defence, led by the German lawyer Thomas Jung, seemed to be fighting a lost cause: it is impossible to find sufficient exemptions and extenuating circumstances to exonerate the accused. The judges, who came from nine different countries (Italy was represented by Luigi Ferrajoli) seemed to be generally unanimous.
The solemnity of the occasion, the amount of attention paid by the public, the soundness of the arguments... all true, all wonderful. There was just one problem: the only authority the tribunal has is moral, and that authority is only down to the fact that it was a “Basso Tribunal” (successor to the “Russell Tribunals”) and the prestige of its members. But legally, the Tribunal has no real jurisdiction and its sentence has no weight, it just remains written in the Book of Dreams of a fairer world. The same happened to the sentences issued over the years by similar tribunals dealing with Vietnam, the Latin American dictatorships, the occupation of Afghanistan, the Marcos regime in the Philippines, Tibet, Bhopal and so on.
Nonetheless an event like the one which has just finished in Berlin underlines an international, and by now consolidated, question - a “hunger and thirst for international justice” as one might call it. Even the regulations of the states are well aware of that.

“The construction of an international society based on law is a slow, modest, chaotic and uncertain task. It will satisfy neither the lovers of sensational events, nor those who want everything immediately. Therefore it is the patient progress of international law which more firmly indicates the various stages of the evolution of universal morals”. That is what the General Secretary of the United Nations, Boutros Boutros Ghali, said in his speech to the International Tribunal of the Hague on 17 November 1993, when he installed the International Penal Tribunal entrusted with trying the authors of violations of human rights committed in the former Yugoslavia. He added: “the creation of this tribunal dealing with the former Yugoslavia is exemplary in each and every aspect”.
The end of the division of the world into two political-military-ideological blocks, dominated by two superpowers which also acted as the world’s policeman and executioner, decidedly reinforced the evident need for rapidly perfecting a system of international law capable of issuing decrees and sanctions, as well ensuring respect and implementation of that which has been legitimately decided. A law which has no chance of being effectively sanctioned would indeed remain a purely moral testimony - important, yes, but impotent when put to the test, and therefore dangerous for the credibility of the law in the long run.
On the other hand, the carrying out of a sentence or sanctions for grave violations of international law on behalf of a partisan appeal, or maybe simply on behalf of the strongest or the winner (what happened between the Nuremberg trials and the Gulf War has happened many more times), cannot assuage the need for setting up a credible, efficient international legal order: the risk is that it will be more a case of encroachment than the legitimate, authoritative carrying out of common public functions. The same “moral tribunals” are - apart from their highly symbolic value - inadequate and always liable to suspicion that they deliberately bring together partisan judges.

That is why there have been long been requests and proposals from many sides for international structures to equip themselves to face the increased quantity and seriousness of the wounds inflicted on the cohabitation of mankind and nature: crimes such as genocide or apartheid or other violent, widespread forms of “ethnic cleansing” (as they are ever more frequently called) spring to mind, the systematic, glaring violation of human rights, the severe and often irreversible attacks on the ecosystem, the systematic use of torture and rape, drug trafficking and money laundering, the enslaving of so many people (in brothels, trafficking in children and so on) or the use of humans as bottomless wells for organ transplants, as well as war crimes foreseen in numerous international conventions.
Maybe we also need to think about new and even more dangerous forms of international violations, such as deliberate, wide scale attacks on monetary stability, on international public health, on basic, fundamental social rights, on the psycho-physical and even biogenetic integrity of mankind and other living species. Maybe one day aggression towards our fundamental aesthetic heritage and its irreversible degradation will also be recognised as an international crime.
The great step forward made by setting up the International Tribunal on the former Yugoslavia should be recognised, despite the weakness it has so far shown. It is about an extraordinary response, a decision taken by the UN Security Council after much important democratic pressure not only by governments but also by citizens from all over the world, and it will certainly make “law” and probably also “make history”, too, for better or for worse, even beyond the dramatic context of the former Yugoslavia.

Indeed, there is one thing we cannot deny: the recognised need to abolish the use of force (ever so devastating and unpredictable in its effects), also in international relations, to create justice for ourselves and to overcome the restricted dimension of national sovereignty which so far has been the main limit in applying the law: neither impartial and therefore not just either, as laws and legal sanctions should be. More and more often breaking the law has transnational effects and consequences. Therefore the law and its application should aim at having a supranational dimension and authority and it is now a universal aim, recognised at least theoretically, that the international monopoly in the legitimate use of force by a common authority be established and respected.
The creation of the International Tribunal dealing with the former Yugoslavia means that not only do we talk about all this, but we also start verifying it in its practical applications.

From Mani tese, July 1994

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