Sunday Herald, UK
July 26 2008
Convenience of justice for psychopaths
by Ian Bell on international law
IN THE area called New Belgrade, they say, children knew the man with
the flamboyant white beard as Santa Claus. That was not one of the
names used by the fatherless and children of Srebrenica 13 years
ago. Nor, in ruined Sarajevo, did they celebrate the gifts that came
raining down from a jolly impostor and his host of grinning helpers.
You get the idea. Only crazed Serb nationalists could fail to welcome
the capture of Radovan Karadzic, "poet", psychiatrist, tin-pot
demagogue, ethnic cleanser, alternative medicine practitioner,
genocidal chauvinist – and keen football fan. "Dragan Dabic" and his
comedy beard have had a date to keep with justice ever since an
indictment was handed down by The Hague tribunal in 1995. It’s about
time. It’s long past time.
The hope, probably forlorn, is that the judges of the International
Criminal Court (ICC) will not be waylaid, this time, by
punctiliousness and a wily defendant, as they were when Slobodan
Milosevic stood before them in 2002. On that occasion there was a
sense almost of relief when Milosevic did the decent thing, for once,
and died. This time, so everyone says, justice must be swift. Fat
chance. Karadzic knows this game. His sort always do.
advertisement Still, there is general satisfaction. One of the truly
bad guys has been tracked down, finally. Decency and the rule of
international law are, thus far, vindicated. The ICC is half way to
fulfilling its remit. That is, first, to demonstrate that there is no
such thing as impunity for heads of government or state: a crime is a
crime, no matter its author. Secondly, the court exists to deter all
such potential criminals. They must know that they will always be
found, and always punished. Who could argue with that?
The people who set up the ICC, among others. Though the court does not
defer formally to the United Nations, it owes its charter, in part, to
the five permanent members of the UN Security Council, and one article
of the charter in particular. This gives the Security Council power to
suspend any investigation or prosecution for a year. The catch being
that the suspension can be renewed indefinitely if the council
believes that the needs of justice are outweighed by other
How outrageous is that? Imagine you are Karadzic’s lawyer. Tell me,
you say to the court, are you seriously judging my client when the UN
Security Council could make the entire case go away if they so chose?
Is it because they don’t like beards?
They certainly don’t like the idea of a court that might adhere to
legal principle pure and simple, not when there might be larger
principles at stake or, if you prefer, favours to be traded. Zimbabwe
might be a case in point.
Robert Mugabe and the Movement for Democratic Change are edging
towards a deal. The old thug wants out from under a flattened economy,
among other things. But would he co-operate if he believed that
stepping down meant an instant indictment from The Hague? It seems
unlikely. So what would be the pragmatic choice? Thousands more
Zimbabweans suffering because Luis Moreno-Ocampo, chief ICC
prosecutor, wanted to do his job, or effective immunity for Mugabe?
So much has already occurred in the case of Sudan and its president,
Omar al-Bashir, chief villain of the Darfur catastrophe. Three years
ago a security council resolution ordered him to co-operate with the
ICC. Two of his henchmen, including his "minister for humanitarian
affairs", were then indicted. Al-Bashir has refused to hand them over
to The Hague. Now Mr Moreno-Ocampo aims to indict the Sudanese
president himself, on the charge (there could be no other) of
genocide. That should teach him.
But teach him what? Only what he already knows: international
institutions are susceptible to threats and menaces. Indict me, says
al-Bashir, and you can forget my co-operation with UN peace-makers. In
other words, the murders, burnings, rapes and tortures in Darfur will
go on. Given this individual’s record, the mayhem might well be
intensified, just to prove a point. And the ICC, in attempting to
prove a point of its own, might well be accused of complicity in the
deaths of thousands.
It is, on a benign reading, one pressing reason for the suspension
clause in the ICC’s charter. It means that in some circumstances the
guilty can go free so that the innocent may be spared. But it also
surely means that other presidential thugs and b******s-for-life will
be encouraged to follow the example of al-Bashir. They will call the
court’s bluff. In other words, they will take hostages, but their
hostages will be entire nations. And international law will be back
where it started.
It started, in effect, at Nuremburg, of course. Certain hazy concepts
were brought into focus. The idea that crimes could be committed
against humanity itself began to gain ground. Yet read any of the
Nuremburg transcripts and you will find nothing resembling a fair
trial. That was never the purpose of the exercise, not with Stalin’s
prosecutors weighing in, with no sense of irony.
No one cared, or cares: the accused were Nazis. They got better, in
terms of a hearing, than they deserved. Should we then conclude that
the Allies committed not a single war crime? Dresden might have made
for an interesting trial. Do we then decide that the Soviets were
spotless? The raped and tortured women of Berlin, in their tens of
thousands, might have stood as witnesses.
None of this is meant to excuse the Nazis, or Karadzic, or al-Bashir,
or any of the rest of a sick company. Of course not. No- one ever
stood trial, anywhere, for the 1915 Armenian genocide, and to this day
the Turks refuse to say an honest word about their nation’s killing of
1.5 million people. But victors’ justice and victors’ guilt are often
not so very different. Many Serbs believe the ICC is a plot against
their nation. Many Africans believe their continent is picked on. They
would, wouldn’t they?
Even when guilt is not denied, discrepancies are noted. Saddam Hussein
was an ideal candidate for an ICC trial, but the basic principles of
international law do not exempt George Bush, Tony Blair and the manner
in which they waged their Iraq war. Then again, who won? And whose
security council inserted that get-out clause in the ICC’s charter,
just in case? It is one thing to scoff at the idea of a British prime
minister being indicted, another to explain just why, legally, he
should escape investigation.
KARADZIC’s lawyer will waste his time if he attempts any of this sort
of stuff, of course. Men such as his client understand political
realities. Besides, they rarely have useful alibis. It is simplistic,
nevertheless, just to celebrate the bringing of a known, shameless
killer to justice. Karadzic, like Saddam before him, probably
concludes that his only real mistake was to lose. Had he been smart or
lucky, like an al-Bashir or a Mugabe, he could have told international
jurists where to stick their international justice.
Some argue for other roads to justice. South Africa’s truth and
reconciliation process is one admired example. But that method, too,
has its problems and its contradictions. In any case, the chances of
its success in the Balkans are slim indeed. The reality is that some
mass-murdering thugs are made to answer for their crimes and some,
conspicuously, are not. The real trick might be to find a way to
prevent the crimes before they are committed.
Defenders of the ICC say that is precisely why the court exists. The
hope is that when everyone, everywhere, realises that no one is above
the law, psychopaths will think twice. The evidence, as lawyers might
say, is open to question. Psychopaths don’t think that way, if they
think at all.