The Failure of the ICC

Some friends and I were exchanging notes, and we discused the possibility that Slobodan Milosevic’s death was part of a conspiracy. I don’t usually spring for conspiracy theories, but we did discuss that the International Criminal Court having a motive: Milosevic’s defense had made a mockery of the proceedings. My friend outlined some of the problems with the ICC:

  1. Jurisdiction/sovereignty: This is basically a question of who has power over the defendant. The Serbs insist that Milosevic was theirs to try, and even his bitterest opponents in that country are angry that he was removed to the Hague. The essence of the jurisdictional issue is that Under Yugoslav Federal law and Serbian law, which govern the person of Slobodan Milosevic, the man and the Head of State, there is no call whatsoever for the ICC to try him because the legal institutions exist inside the country to judge the former President, if and when a case is made against him, which to date has not been the case. Further, Serbia, at the time of his alleged crimes, did not recognize the ICC.

  2. Serbian Law: The ICC considers itself to be in the right, but under Serbian law, the decision to take Milosevic to the Hague for trial constitutes kidnapping, since it was not agreed upon by a majority of the Serbian cabinet ministers. Thus, even if the ICC has jurisdiction by Milosevic’s presence, it is only because he was forcibly brought before the court.

  3. Evidence: Simply put, there isn’t any. Of the over 2000 people initally slated to testify against Milosevic, all but 5 have refused, partially over the sovereignity dispute, and the testimony of those 5 is both weak and unreliable. There is no paper trail or any sort of documentation that links Milosevic to any of the alleged crimes. It’s literally Milosevic’s word against the prosecutors.

  4. Lack of a Jury: This is one of the United State’s major complaints, and Milosevic has hammered it. The ICC doesn’t have juries…it uses a three judge panel to reach decisions. This is inherently fraught with conflict of interest, because if the ICC “loses” such a high profile case it will be the laughingstock of the world, and will never approach legitimacy. But inherent in that conflict, no fair trial was really possible for Milosevic.

  5. Legality of the Court: This is a finer point of law, but was Milosevic’s main argument, which the court had no answer for. Milosevic claimed that the ICC had no legal basis to hear his (or any) international case. The judge interpreted that as a question of jurisdiction, but they are not the same thing. Jurisdiction concerns the power of the court over the defendant. I could set up the court of “plezercruz” in my back yard with Jon holding a gun as my bailiff, and, if you stumbled into my back yard, I could declare jurisdiction over you because I CAN force you to comply. But it certainly wouldn’t be “legal.” Jurisdiction is about power, not right.

    Legality concerns whether the court actually is an agent of law in the first place. Milosevic’s argument was, basically, that since the UN Security Council itself had no right or ability in law to sanction him personally, it was impossible for that same council to create a court to do that for them. Courts are agents of the sovereign, and the UN has no sovereignity by defintion. By his argument, the ICC had no more right to try him than I have of trying you in my backyard. This argument crippled the ICC. It had no answer for it.

    Milosevic asked the ICC to seek a ruling from the International Court of Justice (a non-criminal UN court which settles inter-sovereign disputes and is nonbinding) as to it’s own legality, but the ICC basically ignored his request, despite amicus briefs from all over the world urging them to do so, probably because the ICC likely has no legitimacy in law.

Overall, Slobodan Milosevich managed not only to derail his own prosecutors, but shook the basic foundation of the ICC itself. If not for Slobodan Milosevich’s glaring humiliation of the ICC, Saddam Hussein might have been sent to the ICC for judgment. Instead, the world has now seen that the ICC has deep internal legitimacy issues, and it is unlikely that any of Iraq’s ‘war criminals’ will be sent there.

From that perspective, indeed, there seems to have been a motivation to hasten Milosevic’s departure from the mortal realm.

(Hat-tip: plezercruz)

[Cross-posted at Between Worlds]

6 thoughts on “The Failure of the ICC”

  1. Overall, Slobodan Milosevich managed not only to derail his own prosecutors, but shook the basic foundation of the ICC itself.

    If true, the little rat-bastard accomplished some unintended good in his miserable life.

  2. May I assume that you and your friends mean the ICTY (International Criminal Tribunal for the former Yugoslavia)?

  3. A couple additional points:

    -No trial by jury. Not merely for the points you mentionned but becuase a jury is the incarnation of the nation: when the life and liberty iof a person is at stake the verdict should not depend on mere magistrates (1) but to the nation.

    2) No appeal

    3) No independent source of law. It is not to judges to decide if such thing is a crime and that it should be punished with twenty instead of tenyears. It is to a Parliament, to an elected parliament to make laws ie rules who don’t target a particular person. No to judges. Allowing judges to dictate the rules like done by the ICC would lead to a person sentence to twenty years for a minor offence who happens to be a sensitive issue for the judge or because the judge disliked him.

    (1) Magustrates who can have a sensitivity very different than the one of the common man, they can have considerations of carreer or power, they can be more obsessed with prescedents or the position of a comma in the law than about the case and its human consequences)

  4. As an interesting historical note. Senator Robert Taft (OH-R) criticised the then contemporary Nuremberg Trials.

    “Taft had four legal criticisms of the trial, three of which consisted of the use of arbitrary power to curb individual rights, while the fourth was a prediction about the deterrence value of such a trial. First, the trial violated the “fundamental principle of American law that a man cannot be tried under an expost facto statute.” Second, the trial of the “vanquished by the victors cannot be impartial no matter how it is hedged about with forms of justice.” Third, the trial was based on the “Russian idea of the purpose of trials, government policy and not justice, having little relation to our Anglo-Saxon heritage.” And fourth, Taft warned that the trial and its sentences would not “discourage the making of aggressive war, for no one makes aggressive war unless he expects to win””

  5. Was there a jury at Nuremburg? And who made rules for that?

    From the ITCY website

    (40 accused found guilty, 6 persons not found guilty, 4 indictees transferred to a state for trial, 25 persons indictment withdrawn and 10 persons died)

  6. I agree with Daniel. The court trying Milosevic was a special court established to deal with Yugoslavia. The ICC did not come into existence until 2002 when the Yugoslav trials were already underway. Ref.

    The lack of jury trial is another issue. I do not understand that the institution of lay juries is at all universal. I believe that most European countries do not utilize it.

    There can be no doubt that this tribunal and its effort to prosecute Milosevic will be remembered as a fiasco, and rightly so. If it can be used to derail the ICC, so much the better.

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