When Iraq invaded Kuwait
over 10 years ago, the president of the United States justified the military
operation against the aggressor by saying there was more at stake than a small
country; the allies were fighting for a great idea, a new world order. He spoke
of a world in which the various nations would realize the "universal hopes
of mankind": peace, security and the rule of law. While some smiled
condescendingly at this vision, things have changed in one respect: The
framework has been established for an international criminal jurisdiction that
is not restricted to relations between states.
Former Yugoslav President Slobodan Milosevic as a former head of state must
answer to an international tribunal for his actions. In his case, too, it was
the victors of a war who called him to account. But the International Criminal
Tribunal for former Yugoslavia is no reincarnation of the military tribunals of
Nuremberg and Tokyo. Although it was established by the United Nations Security
Council, nobody but the accused has ever doubted the independence of the judges,
who were selected by the UN General Assembly.
The establishment of criminal tribunals for former Yugoslavia in the Netherlands
and for Rwanda in Tanzania as well as the foreseeable establishment of a
permanent international criminal court are harbingers of a new world legal
order, but they are far from the only ones. There is an impressive history that
shows that it is becoming less and less possible to abuse the principle of
national sovereignty to murder and ethnically cleanse entire peoples with
impunity.
In the context of Mr. Milosevic's extradition, it is often overlooked that the
International Criminal Tribunal for Rwanda has already called a former head of
government to account. Former Prime Minister Jean Kambanda was sentenced to life
imprisonment for genocide. The defeat of East Germany's last communist head of
state, Egon Krenz, at the European Court of Human Rights shows that bringing to
justice government leaders and officials who lock up their citizens and use
force to prevent them leaving their country does not violate European
fundamental rights.
Germany is playing a pioneering role in preparations for a permanent
International Criminal Court. At home, Berlin is going even further, recently
presenting a draft international criminal code that would allow German courts to
condemn perpetrators of serious violations of international criminal law, even
if they had no connection to Germany.
That the new world legal order has gaps is obvious. The establishment of an
effective system of international criminal jurisdiction depends on the states.
Thus the Rome Statute of the International Criminal Court applies only to those
countries that ratify it, and the court will only become active when the member
states themselves are unwilling or incapable of prosecuting criminals
themselves. This shows that in many cases, the problem lies less in the scope of
the law than in its implementation. Lack of political will is the reason why war
criminals like Bosnian Serb leaders Radovan Karadzic and Ratko Mladic are still
at large, although they have long been within the sphere of influence of the
international forces in the Balkans. But changes are becoming clear here, too.
The head of the Bosnian Serb Republic has declared his willingness to extradite
Mr. Karadzic and Mr. Mladic.
Without a doubt, the promise of Western economic aid was an important reason
behind Mr. Milosevic's extradition. That is why critics say a new world legal
order is utopia. Above all, they say the United States, as the sole superpower,
would never allow its soldiers, let alone its commanders, to submit to the
jurisdiction of an international court. Although Congress will not ratify the
Statute of the International Criminal Court in the foreseeable future, U.S.
citizens have long been subject to the jurisdiction of the Hague tribunal.
The Hague tribunal, which was established with U.S. participation, has
jurisdiction over violations of humanitarian international law committed on the
territory of former Yugoslavia since 1991. Thus, the court prosecutors last year
followed up allegations that North Atlantic Treaty Organization troops had
committed war crimes. A comprehensive report studied attacks on civilian
targets, the use of uranium ammunition and cluster bombs as well as alleged
environmental damage. The report finally recommended against a criminal
investigation, as prosecut0rs had been unable to find breaches of international
law.
It might not be surprising that there were no indictments. But the conduct of
the Hague prosecutors shows that in the interpretation of the tribunal, there is
a basis -- with geographical and temporal limits -- for jurisdiction over
citizens of NATO states, and that from the lowest-ranking soldier to the
president, anyone can be prosecuted. At least as far as international criminal
jurisdiction is concerned, the new world order the U.S. president promised a
decade ago is much closer now than he could have dreamed then -- and perhaps
much closer than his son would like now. Jul. 10, 2001