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Air Date: December 2, 1997
Program 9748


THE CHANGING FACE OF INTERNATIONAL LAW


Guests:

Stephanie Grant, Director of Program and Policy, Lawyers Committee for Human Rights

Ruth Wedgwood, Senior Fellow, Council on Foreign Relations


(This text has been professionally transcribed, However, for timely

distribution, it has not been edited or proofread against the tape.)

KEITH PORTER: This week on Common Ground: the historic changes taking place in
international law.

RUTH WEDGWOOD: How can you try the case without unduly compromising the national
security needs of the government? And a number of kinds of procedures were devised which had
to plot out how the course of the trial might proceed—protective orders, limiting who is in
the courtroom. And I guess I thought that some of those same things might be adaptable to the
War Crimes Tribunal.

Croatia’s claim was “We’re a sovereign state like any other sovereign state, just like you.
You can’t tell us what to do. It’s unreasonable to suppose the Security Council meant to
intrude on our sovereignty.” To that my answer is, they are also a belligerent in the war.
They’re not just any old country. I mean, you can debate that one till the cows come home.

PORTER: Common Ground is a program on world affairs and the people who shape
events. It’s produced by the Stanley Foundation. I’m Keith Porter.

This week we’ll hear about the efforts to establish a permanent court to prosecute international
criminals. But first we talk with one of the leading American experts on international law.
Ruth Wedgwood has been an advisor to the War Crimes Tribunal for Yugoslavia. She is a Senior
Fellow at the Council on Foreign Relations, and a Professor at Yale University.

WEDGWOOD: In the old days, before I became a teacher, I was a prosecutor. So the natural
conjunction of teaching international law and having a background in criminal law is to try to
put the two together. And when the tribunals began there were a lot of kind of building problems
that they had of crafting a cosmopolitan procedure that could combine civil law and common law;
worrying about how to get suspects; worrying, just how to make cases well. So as an old retired
firehorse prosecutor looking for a nostalgic recollection of her youth it seemed like a natural
thing to get into.

PORTER: That’s interesting. I mentioned that we’d had Justice Gabrielle Kirk McDonald
on the program before, and she kind of gave the same story. She talked about how in her early
days as a lawyer with the NAACP they were literally making it up as they went along. Breaking
new ground in the law. And that’s one of the things she really liked about being on the tribunal,
is that you are there at the beginning, getting to make up new things.

WEDGWOOD: My joke about the Tribunal is that when they got a building in The Hague the
International Court of Justice would not house them, or couldn’t house them in the old Andrew
Carnegie Peace Palace—wasn’t room—and the kind of security that the criminal tribunal needed
wasn’t something that the ICJ was necessarily accustomed to. So they finally found a building
as you know, called the Aegon Building, that’s right opposite the North Sea Jazz Festival
building in Churchill Playing?? in The Hague. So the idea of making it up as you go along, or
having to do a couple of cadenzas to fill in the gaps is common to both of those enterprises.

PORTER: So jazz and law don’t often come together but it’s fun—you know, when it happens
you’re there, right?

WEDGWOOD: Right.

PORTER: Dr. Wedgwood I know that you presented a friend of the court brief in March of
1997 to the Tribunal. And it has been quoted in many of the documents again from the Court.
Tell us about that. What issues were you trying to address in the friend of the court brief?

WEDGWOOD: Well this was a case that came up actually almost a year prior. It was a
prosecution against one of the participants in the Bosnian War who happened to be Croatian,
named Tihor Mahor Blasketch??, who was allegedly involved in some very serious ethnic cleansing
operations in the central area of Bosnia. This was not the kind of set of protagonists that
many of your listeners will be used to. This was Croatian against Muslim. The Croats, in the
middle of the war, turned against the Muslims and vice-versa, and there were a great many
cross-border operations by Croatia in Bosnia. The Serbs were not the only people to intervene.
And in the course of these operations there really were some very serious acts of mistreatment
of non-combatants and civilians. And the Tribunal had brought an indictment against General
Blasketch. The major challenge was to prove command responsibility. He was not himself on the
ground with a machete doing anything. He was the colonel and general in charge of his troops.
And one of the very serious issues in war crimes, and in trying to make wars be fought
humanely is that there be some kind of command and control of troops so they not run amok.
So a subpoena was issued by the prosecutor’s office at the Tribunal, to Croatia, asking them
to turn over documents that were pertinent to show what kind of operational control Blasketch
had. A subpoena was also issued to Bosnia for the same thing. Bosnia agreed to comply although
there were some problems in actually getting the documents. Croatia did not. And so this case
came up as a contest between the Republic of Croatia and the prosecutor’s office over whether
Croatia had the duty to respond and to supply these documents, that they considered to be
military but that the prosecutor considered to be essential to showing command.

PORTER: And what is the Latin term for that kind of a subpoena?

WEDGWOOD: In the court hearing it got pronounced all kinds of ways, but I used to say
duces ticum. Somebody at the hearing kept calling it duces tecum, which annoyed
the heck out of me, but….

PORTER: But basically this is a subpoena that calls for documents. Is that correct?

WEDGWOOD: It is.

PORTER: It calls for—does it call for a person to appear with the documents, or just
the documents?

WEDGWOOD: It says essentially “I summon you to bring along with you the following…”

PORTER: Now when you address those issues about whether or not this sort of subpoena
was proper and whether or not nations had to comply, what did you, what were your conclusions?

WEDGWOOD: I thought to file the friend of the court brief in part because in the old
days I had had some experience trying to deal with the problem of balancing national security
information with the needs of a criminal trial. This was a big issue back in the Carter
administration. There were a whole series of espionage cases being brought and the question
was how can you try the case without unduly compromising the national security needs of the
government? And a number of kinds of procedures were devised which had to plot out how the
course of the trial might proceed—protective orders, limiting who is in the courtroom. And I
guess I thought that some of those same things might be adaptable to the War Crimes Tribunal.
And also I think there was kind of a signal moment to decide whether the Tribunal really was
going to have any purchase or not. Whether it was going to operate simply as a political
structure or was going to have some of the concomitance of a legal tribunal. And where
government information is essential to proving up the case on a very serious issue of war
crimes violations, that it had to have authority to get what it needed.

PORTER: And I assume that what you came up with was that they do have that authority.
I mean that governments do have to turn over documents to this Tribunal.

WEDGWOOD: Well, a whole series of amicus curiae, friends of the court, were
invited from Europe and several from America. And in general the European briefs were quite
demure. I was a bit surprised. That the idea of ordering a government do something from an
international tribunal didn’t sit very easily with my academic friends in Europe. Maybe I’m
an American functionalist who has the faith it will all come out fine in the end among
reasonable people. But it was an area where there’s not a great deal of settled law. Only
reasoning by analogy. And there’s an old principle in international law that if you, that you
should read things in a way that makes them effective. That there would have been no point to
set up a court and have it be impotent. To simply have it be a court in name only. So that
having used the authority of the Security Council under Chapter VII of the UN Charter, which
is mandatory authority, to set up the court, having struggled to put it into effective
operation it would be just silly to infer that it didn’t have the ordinary powers of a court
to obtain the necessary evidence.

PORTER: Is national security sort of the standard argument against that? I mean, if a
country says, it has a document, they don’t want to turn it over, to claim national security?
I mean I know that happens in the United States. But is that a universal sort of phenomenon?

WEDGWOOD: Croatia’s claim was one step before that really. It was sovereignty. It said
“We’re a sovereign state like any other sovereign state, just like you. You can’t tell us what
to do. It’s unreasonable to suppose the Security Council meant to intrude on our sovereignty.”
To that my answer is, they are also a belligerent in the war. They’re not just any old country.
I mean, you can debate that one till the cows come home. But they were one of the three major
belligerents in the war. They were in fact in quite close military connection with the operations
in central Bosnia. So sovereignty yes, but there have been limitations on sovereignty in many
aspects of the Dayton Agreement: limiting their arms build-up, requiring cooperation in joint
structures of governance. So the sovereignty argument doesn’t carry them home I don’t think.

PORTER: Again, what was the prosecution trying to prove, in a general sense, in
requesting these documents?

WEDGWOOD: Well you’d want, if you were the prosecutor you’d want to either show that
General Blasketch had ordered these things to be done, or had kind of consciously—or at least
recklessly—failed to control them. There’s a duty on the commander to ascertain what his men
are doing and to take appropriate precautions to make sure they’re obeying the laws of war.
And if you can show that, for example, that reports were coming into headquarters, that Blasketch
knew that this pillaging was occurring and did nothing to stop it. Or indeed said, “Go to, go
to,” and another ten Muslims were killed, that that would put him very directly in the center
of criminal liability. So the reporting between the field and his headquarters several
kilometers away was crucial.

PORTER: And it would be almost impossible to verify something like that without
something that came from the military or directly from the government.

WEDGWOOD: Well you could have a skinner version of the proof and a stronger version of
the legal theory if you like, and say, “Look, if atrocities occur perhaps the burden should be
on the general to show that he tried to stop it and couldn’t.” But that’s a very strong
version of the law. If you want to have a more forgiving version of the law then you need a
stronger version of the proof, if you like.

PORTER: Well while I have you here—we only have a couple of minutes left—and I should
ask you what you think about the operation of the Tribunal in general. I mean, are we headed
the right way? Is the Tribunal operating the way that you would hope it would? And is it
setting good precedent for perhaps a future international criminal court?

WEDGWOOD: Well it has some terrific people on it. Goldstone was a great pick for
prosecutor.

PORTER: Justice Richard Goldstone.

WEDGWOOD: Indeed, from South Africa. Nino Cassessi?? of Italy, who is the current
President has been a loving nurturer to father, trying to make this institution grow. There
are some wonderful American judges involved. Gabby McDonald from Texas who was actually sitting
on the subpoena part of this Blasketch case is a very experienced, former Federal trial judge.
It’s had some growing pains. I’m not sure early on that it had a very good sense of what cases
it should pick for prosecution. Not sure it explained itself plainly enough to the Serb community
in Bosnia, to try to gain the political confidence of all three communities. And in any young
institution just purely assuring standards of craft is difficult. It’s had trouble with the
General Assembly, getting money. It’s kind of had to have a begging bowl going around, budget
cycle to budget cycle, trying to get money to protect witnesses and hire defense counsel.
It’s been a real tough assignment for everybody involved in it. And one can sit there and pick
and choose what could have been done a little better or a little worse. But it’s been a very
spirited experiment and with a new Permanent Tribunal coming on I think it’s provided a way
to learn from what went right and what went wrong.

PORTER: Most people I hear when they talk about the Tribunal blame any faults on the
fact that the forces on the ground have been unwilling or unable to arrest the people who
have been indicted. Is that the primary fault now in the Tribunal?

WEDGWOOD: That I don’t think is fair. I mean this is a Tribunal that was established
under Chapter VII of the Charter, under Security Council authority to try to help restore
international peace and security. And the calculus of whether it’s better to arrest Karadjic
and Latech?? now or a bit later is a delicate one. I think that the Tribunal has a role to
play in maintaining a kind of an organ pedal point. You know, a strong voice in favor of
arrest, but the actual prudential, statesmanlike judgment of when to do it, at the moment
when we are trying to back Mrs. Placjick??. She’s got credibility problems. You have all kinds
of aide workers out there in the Republic of Serbska who would be vulnerable if there was
retaliation. It’s a very difficult judgment. So on that one, while clearly eventually they
have to present themselves to the Tribunal, how to do it is not an easy question.

PORTER: And will you continue your involvement with the Tribunal’s work?

WEDGWOOD: I’ll continue to teach international law and be a pest. So I suppose will.

PORTER: That is Ruth Wedgwood, from the Council on Foreign Relations and Yale University.
In a moment we’ll hear more about the effort to replace the ad hoc War Crimes Tribunals with a
permanent international criminal court.

STEPHANIE GRANT: There is no international criminal court who can try, prosecute an
individual for genocide, for crimes against humanity, for grave breeches of the laws of war.
Those acts have been international crimes for 40 years. But there’s been no court which could
prosecute them.

PORTER: Printed transcripts and audio cassettes of this program are available. Listen
at the end of the broadcast for details. Common Ground is a service of the Stanley
Foundation, a non-profit, non-partisan organization that conducts a wide range of programs
meant to provoke thought and encourage dialogue on world affairs.

The War Crimes Tribunals for the former Yugoslavia and for Rwanda are temporary creations of
the United Nations Security Council. But there are many who believe the world needs a
permanent court to handle these kinds of crimes. Leading a campaign for such a court is the
Lawyers Committee for Human Rights. Stephanie Grant is Director of Policy and Program.

GRANT: The Lawyers Committee is a US-based organization of lawyers. It was started in
1978. And it essentially has two, as it were, wings to its work. The first it the work it does
in the United States. And that is primarily to represent asylum seekers and to advocate for
the rights of refugees in American law and in American policy and practice. So one of the main
campaigns we have at the moment is to see in what way we can get the Congress to address the
legal changes which were made only last year which sharply reduced the rights of refugees on
arrival in the United States. Then secondly we have international programs which look at
questions of international human rights protection. And that’s of course partly through, in
the enforcement of international treaty law. It’s partly through the enforcement of
international criminal law, which has been on the books at the United Nations and of member
states of the United Nations now for four decades. But until, until the Yugoslav Tribunal was
created in May 1993 there was no capacity within the international community to prosecute
somebody responsible for genocide or grave breaches of the laws of war. We look at judicial
systems. We are doing a project scrutinizing work by the World Bank, particularly in Latin
America to reform judicial systems. Of course the World Bank’s concern is to reform judicial
systems so that they’ll provide fair arbitration mechanisms in commercial matters. We say a
fair system is a fair system. And we’re encouraging the Bank to broaden the scope of its
judicial reform programs so that it’s going to encourage the creation of independent legal
systems which then will be good for human rights protection as well as for commercial contract
dispute.

PORTER: I want to go back to the idea about creating sort of permanent judicial
responses to international criminal conduct. You have an international criminal court campaign.
You know, I think for the people out there who don’t pay close attention to these issues often
hear that and I think what they think is, the World Court or the International Court of
Justice. Tell our listeners the difference between those operations.

GRANT: Well, I suppose one way of starting with the difference is just to focus on a
single individual, which is, who is Pol Pot. Pol Pot was the head of one of the most brutal
regimes I think that we’ve known in recent history, the Cambodian Khmer Rouge government. And
in the 1970s the death toll in Cambodia as a result of political killing was something rising
close to a million. Now because the international community had no way of compelling the
Cambodians or itself of prosecuting those who were responsible, Pol Pot and those who worked
with him have got off, if you will, Scott free. Now in June this year a report came out of
Cambodia that Pol Pot might be available for prosecution. He’d got into difficulties with some
of his former political friends and it seemed as though the Cambodian authorities would, were
offering to the international community to surrender Pol Pot for trial. What then became clear
was that there was no—or not clear, some of us had known it all along—but what became all
too evident was that there is no international criminal court who can try, prosecute an
individual for genocide, for crimes against humanity, for grave breeches of the laws of war.
Those acts have been international crimes for 40 years. But there’s been no court which could
prosecute them. The Nuremburg Court existed, it existed for a certain purpose. But since that
court, which was probably never a truly international court in the sense that we would mean
it today, there has been no international institution.

Now were the international criminal court in existence Pol Pot would clearly be somebody who
should be a defendant in that court. The international criminal court is likely—these things
are still under discussion at the United Nations—but it’s likely to have jurisdiction to
prosecute these three core crimes: genocide under the Genocide Convention; crimes against
humanity; and grave breeches of the Geneva Conventions, the laws of war. The international
criminal court has been, as it were, a gleam in the eyes of idealists for a long, long time.
But it was only after the, after 1990, after the ending of the bi-polar world, that it was
possible to resurrect it. And it came before the United Nations I think close to three years
ago in the form of a draft statute prepared by the International Law Commission. And the
United Nations then started to discuss it. And I think at the time people were very skeptical.
They said, “Nobody, no governments are really going to want this.” But the draft statute in
a way rode on the shoulders of the two ad hoc tribunals which were created for former
Yugoslavia and for Rwanda. And also I think it rode on the, on people’s knowledge—through
television, through media reporting—of just the extent of atrocities which are being
committed now in different wars and different parts of the world, and which go unpunished.
And so to some people’s surprise I think, the member states of the United Nations, in large
majority, are now decided that they want to create an international court. This will be
entirely separate from the International Court of Justice, which doesn’t have a criminal
jurisdiction. And the question now is what shape the court will take.

PORTER: Yes.

GRANT: And this is really where the Lawyers Committee campaign comes in.

PORTER: You mentioned the fact that there is no permanent court. What if someone were
to say, “Well, why do we need a permanent court? When Yugoslavia came up we created a
tribunal. When Rwanda came up we created a tribunal. Why can’t we carry on creating ad hoc
tribunals?

GRANT: I think if you asked a Rwandan that question he’d say, “Please don’t. It took
you so long to create a Rwandan tribunal.” In fact it took under a year which is fast by
United Nations standards. But then the tribunal which was created has taken a very long time
to get up and working. In the case of Yugoslavia, again there was a long delay. Delay means
that evidence is lost. It means that the deterrent effect which swift prosecution can have is
lost. And what you need is a court which is already in existence, which doesn’t, as in the
case of the Rwanda tribunal—of the Yugoslav tribunal—have to design its forms, build its
courtroom, work out it systems, before it can start to investigate, let alone indict an
individual. So you really need a permanent body which knows what its doing, which is recognized
as being professional and competent. And which can go into motion just as soon as the need
arises.

PORTER: You mentioned that the Lawyers Committee has an interest in the structure of
this court. What is the preferred structure for an international criminal court?

GRANT: Well, the international court will have judges who will be elected by the
member states of the United Nations. That’s not at all controversial. What is controversial
is what the power of the prosecutor will be and to what extent the prosecutor can decide which
cases in which situations are right to prosecute. And this is where the big divide opens
between the Permanent Five, who would like to have a court whose agenda, whose docket, they
can influence. And so the proposal at the moment before the United Nations is that the
prosecutor wouldn’t have an independent power to decide which situations in which cases to
prosecute. That he or she would only be able to begin to prosecute once either, through an
inter-state mechanism, or by referral from the Security Council, a particular country had
been put before him or her. Now the difficulty with this is that the Security Council has a
duty under the Charter to take certain political steps and it may well be that members of the
Security Council will see prosecution as being something which will be, interfere with their
own bilateral or multilateral attempts to bring a settlement to negotiate. And so you could
well have a situation in which a very egregious human rights situation was taking place, in
which horrific criminal offense were being committed, but the Security Council said, “Look
there are global political reasons why we don’t want these leader to be prosecuted. We’re
talking to these leaders. We don’t want them to be served with writs, with indictments.”

PORTER: It’s a “who wins.”

GRANT: Well. And of course, as soon as you create a court which is linked to a
political body in that way the nations of the world don’t see it as independent. And so it’s
authority is inevitably reduced. So the first plank, if you will, of our campaign, is that
the court should be truly independent.

PORTER: What are the chances that an American would be called before an international
criminal court?

GRANT: If the United States applies its own law, both to soldiers and to citizens, in
the way that it should, and I’m sure it will, there really is no chance at all that an
American could come before the court. Because the court is complementary to national legal
systems. And the court’s jurisdiction only comes into existence where the country in which
the crime was committed, or the country whose nationality the suspect has, refuses or is
unable to prosecute. In the case of Yugoslavia, the former Yugoslavia, we’ve seen and we
continue to see the situation in which the, Serbia and the Bosnian Serb Republic, refuge to
prosecute. In the case of Rwanda in the immediate aftermath of the genocide with the
destruction of the legal institutions, Rwanda couldn’t. It was unable to prosecute. Neither
of those is likely to be the case with the United States. And so the prospects of the
international criminal court beginning to think of prosecuting a US national are very remote.

PORTER: I know a lot of Americans are always concerned when they hear about these kind
of organizations.

GRANT: It’s always the question. It’s always the question.

PORTER: What are the concrete steps that are being taken right now to create this
court and when and how will those steps culminate?

GRANT: We’re coming to the end of a series of meetings at the United Nations,
preparatory committee meetings, in which all the member states have sent delegations to the
United Nations in New York. And I think we’re coming up to the, I can’t remember whether it’s
the fifth of sixth meeting, at the end of this year. And during those meetings, which last
for around three weeks, delegations talk about the real nitty-gritty. I mean the real tiny
technicalities of it. In December for instance, and this is perhaps not such a tiny
technicality, there’s going to be a discussion of what should be the minimum age of criminal
responsibility. In other words, how old must a child or a young person be before they could
become within the court’s jurisdiction. That is something which hasn’t yet been worked out.
There’ll be another preparatory committee meeting in the spring and then in the early summer
of next year there’ll be a full diplomatic conference in Rome at which the very serious
agreement on the text of the statute of the court will take place. And it may well be that by
the end of the century, which is only a couple of years off, we do have an agreed statute.

PORTER: That is Stephanie Grant, Director of Program and Policy for the Lawyers
Committee for Human Rights. For Common Ground, I’m Keith Porter.

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