Bravo Two, this is Bravo Four. Let me know when it is clear, copy … ten-four.
The Japanese paper blinds are unrolled, shielding from public view the entry of one of the witnesses in the International Criminal Tribunal for the former Yugoslavia in The Hague. The Kosovan witness takes his place, and the blinds are lifted across half the court-room so that while the witness remains concealed from the view of the public gallery we can see the prosecuting lawyers and the presiding judges through a thick glass security wall framed by metal shutters. On a video screen in the gallery, the new prosecution witness appears as a moving pixellated lego figure, his head three blocks wide and six blocks high.
These identity-protection measures are intended to allow him to return home to his village in Kosovo. However, in one respect he is completely and utterly exposed. He comes face to face with the accused — Slobodan Milosevic. Mr Milosevic sits in Court Room Number One as his own defence lawyer. The evidence is overwhelming that the forces of the former Yugoslavia engaged in crimes against humanity and violations of the laws of war, including systematic murder, forcible transfer, sexual assault, and wanton destruction of homes and cultural and sacred sites; but proving that Milosevic controlled the process is a different matter.
Nothing can adequately prepare the witnesses for the ordeal of the court-room, even though two psychologists and other dedicated administrative staff work long, hard hours to support them. For some, it is the first time they have left the immediate region of their village. Some of those will never be able to return home for fear of reprisals. And overlaying this basic disruption to their lives is the sheer emotion of recalling events of horror that no one should ever have to face. One witness survived by burying himself beneath corpses of friends and family. Still, with incredible bravery, the witnesses testify. They want to bear witness, in the fullest sense of the term. Some have been waiting for years for the opportunity, unable to talk about their ordeals until their moment in the court-room. The problem is that when that moment of revelation comes it is almost inevitably undercut by the very nature of a criminal court. As witnesses to an alleged, crime they are usually only allowed to talk about the immediate details of what they saw: where the bullet entered the person’s body; how many bodies fell; and at what time in the day the deaths occurred. In this manner, the witness’s experience is reduced to a technical matter.
The international community is now debating the establishment of a permanent International Criminal Court. On 1 July 2002, the first such court was instituted amidst much controversy, with the American administration demanding that the United States military be effectively excluded from its jurisdiction. In this context, it is important to examine the outcomes various other war crime tribunals, from the Tokyo and Nuremberg tribunals, the trial of Otto Adolf Eichmann in Jerusalem in April 1961, to the more recent trials in relation to Rwanda and the former Yugoslavia. Key issues surrounding the establishment of such an International Criminal Court have been consistently over-looked
While the principle of individual culpability should continue to be important (and therefore ensuring the need for some kind of International Court) the current proposal focuses too narrowly on indictable criminality. It makes no allowance for people bearing witness to the horror of what they experienced, nor for getting at the broader truths embedded in settings of genocide. For example, on the day of the trial that I just described the focus was on a village named Racak. The massacre of forty-five people there was presented in 1999 as a trigger for the NATO intervention. As it turns out, of the massive list of offences listed against Milosevic, Racak provides the only indictable evidence of a massacre in Kosovo prior to that fateful day on 24 March 1999 when President Bill Clinton and other NATO politicians decided that the only answer to the military activities of the Federal Republic of Yugoslavia was a deluge of bombs. Was NATO warranted in killing so many people to save others? Try taking that case to a criminal court.
A further issue concerns the targets of the court’s indictments. From Nuremberg to The Hague, the trials have never indicted other than the losers of various wars. In the Tribunal for the former Yugoslavia, the focus is on figures of evil such as Milosevic, Milutinovic and Sainovic. In their defence they claim that all they are guilty of doing is letting loose a messy war-machine against a threat of terrorism: the KLA. Even the prosecuting lawyers admit that in terms of criminal culpability the evidence against Milosevic is largely circumstantial. On this count Henry Kissinger, Ariel Sharon, George Bush, Bill Clinton and George W. Bush are similarly indictable. However, if history is anything to go by their being brought to account is extremely unlikely. In this sense, the International Criminal Court does pose a threat to nation-state sovereignty as some of the critics in Australia have averred, but the countries most threatened are hardly Australia and the United States. They are more likely to be places of tragic violence, places where the world turns its attention long after the event, to transform them into simple cases of personalised evil.
These and other issues suggest that the Left should not get uncritically excited about the International Criminal Court in and of itself. We need to rethink the narrow parameters of such a court and argue, for example, for systematic horizontal connections to an International Truth Commission that can pursue broader questions of crimes against humanity. At the same time, we need to develop more systematic vertical connections to national and local criminal courts and truth commissions. For example, in Rwanda, with more than 100,000 genocide suspects still in jail, the justice system announced in June that it is turning to a traditional form of justice called gacaca, local trials by peers elected on the basis of personal integrity. Like the International Criminal Court, this too has the potential to be either dangerous or enlightened, a Star Chamber or a carefully negotiated political intervention. The point is that a single court is never the answer. The way forward depends upon conceiving of a different system of courts in the context of a culture where justice involves a deeper search for truth than we currently seem capable of managing.