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Tuesday, 06 March 2007 18:25 |
BY JIM GENARO
Despite a lack of support from the Bush administration, the International Criminal Court has been a successful tool for bringing perpetrators of crimes against humanity to justice, according to Paul J. Magnarella, director of peace and justice studies at Warren Wilson College.
Magnarella discussed the history of international criminal tribunals at UNC Ashevilleís Humanities Lecture Hall on Feb. 27. The lecture was sponsored by the World Affairs Council of Western North Carolina as part of the organizationís Great Decisions 2007 lecture series. About 40 people attended the talk.
As
a former legal adviser for the United Nations Criminal Tribunal for the
Former Yugoslavia, Magnarella said he had ìstudied the law pertaining
to defendantsí rights ó especially with respect to confronting
witnesses against them.î
This was
particularly problematic in cases in which the people who were
testifying against accused abusers were victims of rape, and might have
undergone significant psychological trauma had they confronted their
attackers in person, he said.
To solve this
problem, Magnarella helped the court devise a system whereby witnesses
in a remote location could be seen by the judges, but remain anonymous
to the defendant. To verify the identity of the person, the judges
would ask ìquestions that only one that was in the camp (where the
atrocities occurred) could have answered,î Magnarella said.
ìItís been, I think, a very good development,î he said of the procedure.
Magnarella then
began to trace the history of international tribunals, starting with
the establishment in 1945 of the International Military Tribunal at
Nuremburg.
Created by the
U.S., Great Brittan, France and the Soviet Union to try Nazi war
criminals, the court has often been described as a ìvictorís tribunal,î
Magnarella said, because the Allies ìwere not subject to prosecution by
this tribunal.î
Early on in the
courtís development, a decision was made that individuals ó not the
German people as a whole ó would be tried. Twenty-two top Nazi
officials were tried, of whom all but two were convicted.
The courtís
mandate also outlined the specific types of crimes it could try. Among
these was murder, which did not include killing soldiers in war, but
rather civilians and non-combatants; crimes against the peace; and
crimes against humanity.
This last category provided an important foundation for future international laws.
Magnarella
defined crimes against humanity as ìmurder, extermination, enslavement,
deportation and other inhumane acts committed against any civilian
population.î
Significantly,
with such crimes, it became established in international law that ìany
country can prosecute, if it wants to, those responsible for it,î he
added.
However, after
the Nuremburg Trials, international cooperation in combating abuses was
stymied by the Cold War, Magnarella added. It was not until the 1990s
when the breakup of the former Yugoslavia led to a humanitarian crisis
that international tribunals were established again.
In 1980, Joseph
Tito, the despotic president of Yugoslavia, died. The country, which
was comprised of numerous ethnically dominated provinces, including
Serbia and Croatia, began to fall apart without a strong ruler to hold
them together. As one territory after another began declaring
independence, conflicts started to break out.
ìBecause of the ultra-nationalism of some Serbs, some Croats, the fighting became quite brutal,î Magnarella said.
In some areas, ìethnic-cleansingî campaigns were carried out to eliminate undesirable minorities.
Seeking to stem the violence, the international community stepped in to establish a tribunal to try accused war criminals.
ìThe hope was
that once the tribunal was working, these leaders that were committing
these atrocities would stop and think, ëWait a minute ó I might be
prosecuted,íî Magnarella told the audience.
However, that
did not happen, she said. Instead, the period after the establishment
of the ICTFY in 1993 saw some of the most horrific violence of the
conflict.
The United Nations established the ICTFY under Chapter 7 of its charter ó an important distinction, Magnarella noted.
All
member-states are required to cooperate with a body established under
Chapter 7, he said. This meant that if a country was holding suspects
that were wanted by the tribunal, they could be forced to extradite
them ó or face sanctions.
Building on the
successes of the Nuremburg Trials and the ICTFY, the U.N. in 2003
established a new international tribunal: the International Criminal
Court. The court is charged with prosecuting crimes that violate the
Geneva Conventions, the Hague Conventions of 1907, the 1948 Conventions
on the Prevention and Punishment of Genocide and all other crimes
against humanity.
Crimes against
humanity, Magnarella noted, include crimes against ethnic groups that
fall short of genocide. ìYou just have to prove that they were
persecuted and that certain crimes were committed against them in a
widespread and systematic manner.î
Turning to the
subject of genocide, Magnarella said that one of the most brutal
genocides in recent history was that between the Hutus and the Tutsis
in Rwanda in the 1990s.
During a clash
between the two ethnic groups, more than 800,000 Tutsis were killed by
Hutu militias before an alliance of Tutsi soldiers and leaders from
neighboring Uganda joined together to drive the Hutu factions out.
However, by the time they did so, ìmost of those responsible for the genocide had escaped Rwanda,î Magnarella said.
After its
elections in 2002, Rwanda was unable to get most of those people
extradited for trial, because it did not have extradition treaties with
its neighbors.
Furthermore,
Rwanda practices capital punishment and many countries will not
extradite prisoners to a country where they might be killed for their
crimes. Therefore, Rwanda turned to the ICC.
So far, the
court has passed judgment on 31 accused people, convicting 27 of them.
Another 27 are currently being tried and nine more await trial.
Meanwhile, the
U.S. has resisted ratifying the ICC. Though President Bill Clinton
signed on to the court, it was never ratified by the U.S. Senate and
President Bush withdrew from it shortly after taking office, Magnarella
said.
The court
operates under a two-track system, he noted. A prosecution can be
started by the U.N. Security Council under Chapter 7, which requires
all member-states to cooperate with it.
However, an
individual country can also request an investigation, which must be
cooperated with only by signatories of the courtís charter.
The ICC also has
certain limitations, Magnarella said. It can only investigate crimes in
countries where the government is unwilling or unable to do so itself.
The Security Council can also intervene to postpone an investigation by
up to one year.
Thirdly, the ICC
only has authority in cases where either the state involved or the
nationality of origin of the accused is a state that signed the courtís
charter.
For its part,
the Bush administration has vigorously worked to ensure that American
officials can not be prosecuted by the court, Magnarella said. It has
tied foreign aid to requirements that countries receiving such aid will
agree to never turn a U.S. citizen over to the ICC. Likewise, these
agreements give assurances that the U.S. will not turn over accused
criminals from the countries that receive aid.
This has not
raised the esteem of the U.S. worldwide, Magnarella told the audience.
ìThe U.S. is earning itself a worse reputation than it already has,î he
said, and some countries have refused aid rather than agree to the
demands of the U.S.
Though the ICC
has a wider jurisdiction than any previous international tribunal,
Magnarella noted that ìto be effective, the major powers ó the U.S.,
Russia, China and India ... must join the court.î
He closed his talk by charging his audience to tell elected officials to support the ICC.
ìI think that
American citizens that are really interested in peace and human rights
should give this tribunal all the support they can,î Magnarella told
the audience.
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