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Courting World Order

Reinhard Müller © 2001

When Iraq invaded Kuwait over 10 years ago, the president of the United States justified the military operation against the aggressor by saying there was more at stake than a small country; the allies were fighting for a great idea, a new world order. He spoke of a world in which the various nations would realize the "universal hopes of mankind": peace, security and the rule of law. While some smiled condescendingly at this vision, things have changed in one respect: The framework has been established for an international criminal jurisdiction that is not restricted to relations between states.

Former Yugoslav President Slobodan Milosevic as a former head of state must answer to an international tribunal for his actions. In his case, too, it was the victors of a war who called him to account. But the International Criminal Tribunal for former Yugoslavia is no reincarnation of the military tribunals of Nuremberg and Tokyo. Although it was established by the United Nations Security Council, nobody but the accused has ever doubted the independence of the judges, who were selected by the UN General Assembly.

The establishment of criminal tribunals for former Yugoslavia in the Netherlands and for Rwanda in Tanzania as well as the foreseeable establishment of a permanent international criminal court are harbingers of a new world legal order, but they are far from the only ones. There is an impressive history that shows that it is becoming less and less possible to abuse the principle of national sovereignty to murder and ethnically cleanse entire peoples with impunity.

In the context of Mr. Milosevic's extradition, it is often overlooked that the International Criminal Tribunal for Rwanda has already called a former head of government to account. Former Prime Minister Jean Kambanda was sentenced to life imprisonment for genocide. The defeat of East Germany's last communist head of state, Egon Krenz, at the European Court of Human Rights shows that bringing to justice government leaders and officials who lock up their citizens and use force to prevent them leaving their country does not violate European fundamental rights.

Germany is playing a pioneering role in preparations for a permanent International Criminal Court. At home, Berlin is going even further, recently presenting a draft international criminal code that would allow German courts to condemn perpetrators of serious violations of international criminal law, even if they had no connection to Germany.

That the new world legal order has gaps is obvious. The establishment of an effective system of international criminal jurisdiction depends on the states. Thus the Rome Statute of the International Criminal Court applies only to those countries that ratify it, and the court will only become active when the member states themselves are unwilling or incapable of prosecuting criminals themselves. This shows that in many cases, the problem lies less in the scope of the law than in its implementation. Lack of political will is the reason why war criminals like Bosnian Serb leaders Radovan Karadzic and Ratko Mladic are still at large, although they have long been within the sphere of influence of the international forces in the Balkans. But changes are becoming clear here, too. The head of the Bosnian Serb Republic has declared his willingness to extradite Mr. Karadzic and Mr. Mladic.

Without a doubt, the promise of Western economic aid was an important reason behind Mr. Milosevic's extradition. That is why critics say a new world legal order is utopia. Above all, they say the United States, as the sole superpower, would never allow its soldiers, let alone its commanders, to submit to the jurisdiction of an international court. Although Congress will not ratify the Statute of the International Criminal Court in the foreseeable future, U.S. citizens have long been subject to the jurisdiction of the Hague tribunal.

The Hague tribunal, which was established with U.S. participation, has jurisdiction over violations of humanitarian international law committed on the territory of former Yugoslavia since 1991. Thus, the court prosecutors last year followed up allegations that North Atlantic Treaty Organization troops had committed war crimes. A comprehensive report studied attacks on civilian targets, the use of uranium ammunition and cluster bombs as well as alleged environmental damage. The report finally recommended against a criminal investigation, as prosecut0rs had been unable to find breaches of international law.

It might not be surprising that there were no indictments. But the conduct of the Hague prosecutors shows that in the interpretation of the tribunal, there is a basis -- with geographical and temporal limits -- for jurisdiction over citizens of NATO states, and that from the lowest-ranking soldier to the president, anyone can be prosecuted. At least as far as international criminal jurisdiction is concerned, the new world order the U.S. president promised a decade ago is much closer now than he could have dreamed then -- and perhaps much closer than his son would like now.

Jul. 10, 2001

© Frankfurter Allgemeine Zeitung 2001
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