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March 16, 2006

Slobodan Milosevic, International Justice and the United States: For all its opposition to an International Criminal Court, the United States is the only guarantor of International Justice - Brendan Simms explains why

Posted by Brendan Simms

The United States and its allies are the only guarantors of international justice. Dr Brendan Simms - Reader in the History of International Relations at the University of Cambridge's Centre of International Studies - explains why.

Slobodan Milosevic's death in custody in The Hague on Saturday (11th March 2006) provides a timely reminder of an earlier age. Today the United States remains more steadfastly opposed to the idea of a permanent international criminal court than ever; the United Kingdom was one of its strongest supporters at the outset, though its ardour cooled after the controversies of the Iraq war.

Back in 1993, however, when the United Nations War Crimes Tribunal for the Former Yugoslavia was set up, Britain was its most fierce opponent. In part, this was due to valid intellectual concerns. Already at Nuremberg, British lawyers had been vexed by the questions of precedent, evidence and fairness. They were also wary of the growing penchant for seeking legal solutions to what were essentially political problems.

Yet the principal reason for British reticence had to do with the very man who was to become the Tribunal's most celebrated defendant, Milosevic himself, and his Bosnian Serb allies. They feared that the victorious Serbs would never enter into a peace agreement, if they had the threat of an international prosecution hanging over their heads.

As one British diplomat to the British mission in New York later recalled, what underlay British attitudes to the Tribunal:

was a general feeling that at some stage we were going to have to talk to the Serbs. It was not going to help very much if all of them were going to be in fear of arrest at The Hague.
The Minister of State in the Foreign Office at the time, Douglas Hogg, admitted as much in February 1993. He told the House of Commons that:
If the authority the responsibility for those crimes goes as high asI expect, we must ask ourselves what is the priority: is it to bring people to trial or is it to make peace? That is the sort of tension with which we must deal.
This tension is not unusual in history, of course, but in this case, the fact that there could be no peace in the former Yugoslavia until Milosevic had been brought to justice, or at least deposed, was not yet clear to Her Majesty's Government.

For these reasons, Britain tried to hobble the Hague Tribunal from the start. Thus, when the Security Council established a Commission of Experts to investigate breaches of humanitarian law in the former Yugoslavia in October 1992, Britain successfully resisted the US demand that the body should be called a "War Crimes Commission". It tried to block the appointment of an activist Chief Prosecutor, in favour of a more pliable British figure. One of those who fell by the wayside later recalled his fear that the British candidate:

might follow the British line and subordinate prosecution to Lord Owen's elusive quest for peace.
Britain also delayed supplying the commission with evidence from debriefed former camp detainees who had found refuge in the United Kingdom. The Dutch head of the Geneva Commission on War Crimes, Frits Klashoven, subsequently remarked that:
Britain hasn't done anything for us - nothing at all.

The fact that Milosevic finally stood trial in The Hague was therefore thanks to American efforts, and those of the Labour government which took power in 1997. The Kosovo war loosened so many teeth in Milosevic's regime that he fell a year later, and it was primarily at US insistence that he was subsequently extradited by the new Serbian government. They received, and receive, no thanks from the Muslim world, of course.

Paradoxically, this triumph for international justice could only be achieved through a massive breach in the laws which many suppose to govern the relations between states. There is no getting away from the fact that the Kosovo war, which was carried out without formal authorisation by the United Nations Security Council, was a violation of Yugoslav sovereignty. Likewise, Saddam Hussein is in court today, only because the United States and Britain broke the "rules" - again.

By contrast, the existence of the International Criminal Court, which ironically opened in March 2003, the very month when the deposition of Saddam Hussein began, has done very little for justice world-wide. So far its biggest impact has been to dampen American enthusiasm for the Yugoslav War Crimes Tribunal. This matters because Washington will not in future carry out essentially pro bono humanitarian interventions, such as Kosovo, if it risks being held to account for civilian casualties or breaches of "international law". Any restrictions on US power are thus potentially also restrictions on the reach of global justice.

In short, it is true that the brand of international justice dispensed by the Americans and their allies is frequently unilateral, selective, and at best rough and ready. But without them there would be no justice at all.

Dr Brendan Simms is Reader in the History of International Relations at the Centre of International Studies, Cambridge, author of Unfinest Hour: Britain and the Destruction of Bosnia (Penguin, 2001), and co-President of the Henry Jackson Society.

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