John Laughland – Daily Mail.co.uk July 26, 2008
When the former Bosnian Serb president Radovan Karadzic was arrested last week, it looked like the cause of international justice had scored yet another breathtaking victory. His trial, it seemed, would be a mere formality.
Yet if international justice is to be worthy of the name, it must behave according to the rules of judicial procedure. Unfortunately, those running international justice often play fast and loose with the rules.
Karadzic will be tried by the International Criminal Tribunal for the former Yugoslavia in The Hague, one of three courts established by the United Nations Security Council for specific countries, the others being for Rwanda and Sierra Leone.
Together they have accumulated a list of practices that are completely illegal in British courts and in most civilised jurisdictions.
They frequently hold entire sessions, or parts of sessions, in secret, censoring the transcripts so that no one will ever know what was said in court.
They regularly allow witnesses to give evidence anonymously. This makes life easy for perjurers, which is why the House of Lords has just ruled it illegal for murder trials in Britain, and it makes it impossible for a defendant to cross-examine his accusers properly.
Such denunciation in secret reminds us of the worst excesses of totalitarian regimes. But at the Yugoslav tribunal no fewer than 40 per cent of the prosecution witnesses are anonymous.
Anonymous witnesses are so common at the Rwanda tribunal that defence lawyers are now convinced that most of them are in fact a small band of paid liars, possibly trained by the new Rwandan government, who appear repeatedly in different trials to spin whatever yarn the prosecution wants.
Trials before international tribunals are grotesquely long. The man accused of being the ringleader of the genocide in Rwanda, Théoneste Bagosora, was arrested in 1996; the prosecution did not conclude its case until over ten years later, in June 2007, and the trial will continue for more years to come.
His case is typical but this is completely incompatible with the presumption of innocence.
If Karadzic goes to The Hague, the prosecutor there may not be able to produce direct proof that he ordered atrocities. He certainly never managed to do so in the trial of former Serbian leader Slobodan Milosevic, who died in his cell after five years of proceedings.
If that is the case, the prosecutor will fall back on a claim that Karadzic should have known or must have known about them, by virtue of his position as president.
But this doctrine of criminal liability, which tribunals already use to sentence people, is equivalent to a presumption of guilt. It means convicting a man for who he is, not for what he has done.
We can expect little better from the International Criminal Court, which is also based in The Hague.
Established in 2002 as a result of an international treaty for the purpose of prosecuting war crimes, it has recently decided that it has the right to prosecute anyone in the world, including heads of state of countries that have not agreed to submit to its jurisdiction.
On July 14 the ICC issued an indictment for genocide and war crimes against President Omar al-Bashir of Sudan, even though Sudan does not recognise the court. The indictment of a sitting president was intended to show that no one was beyond the reach of international law.
We should all be worried if such power becomes a law unto itself but, unfortunately, it already has.
Supporters of international justice say they want an end to immunity for unscrupulous leaders. But the lawyers who work for these tribunals enjoy precisely the same immunity which they seek to deny to politicians – an unscrupulous prosecutor or judge cannot be prosecuted.
Just a week before he indicted President al-Bashir, the ICC prosecutor was caught cheating.
Thomas Lubanga, a Congolese military and political leader, was due to go on trial in June but judges discovered the prosecutor was withholding information, which the United Nations had given to him in secret, that exonerates Lubanga.
In other words, the prosecutor and the UN were conspiring to imprison a man on the basis of a lie. Lubanga’s release has been ordered but he remains in custody while the prosecutor appeals against the decision.
So instead of resigning or being punished, the prosecutor was allowed to carry on as if nothing had happened. He simply launched an even more high-profile indictment – that of al-Bashir.
And, of course, the ICC does not come cheap. The budget for 2008 was £71million and, although the court has been up and running since 2002, it has still not actually tried anyone.
This is an impressive waste of time and money, considering that more than 200 people are employed there.
Instead the court is now planning a vast new palace in which to house itself. And guess who pays for all this? That’s right – the taxpayers, especially those from richer states like Britain, which pays ten per cent of the budget.
We are used to hearing protests at the overweening power of international organisations such as the International Monetary Fund and, of course, the European Union. These institutions are accused of arrogance, of having their own institutional agenda, or of being controlled behind the scenes by powerful states.
But when it comes to international criminal tribunals, by contrast, people assume that they must, by definition, be moral and objective.
Yet international tribunals can abuse their power just as easily as national ones. In fact, the likelihood of abuse is greater since international institutions are never elected: they are not controlled by any legislature and they take decisions without ever having to bear political responsibility for the consequences.
This is the very definition of unaccountable power.
As such, it is the antithesis of the justice which all defendants are entitled to expect, whatever the charges against them.
• A History Of Political Trials From Charles I To Saddam Hussein, by John Laughland, has just been published.
Last updated 01/08/2008