The law of the strongest

"The cause of liberty becomes a mockery if the price to be paid is the wholesale destruction of those who are to enjoy liberty."
Mahatma Gandhi

In this chapter we want to consider the legitimacy of NATO's actions in Kosovo. For this reason we went for advice to the Dutch jurist and specialist in international law Professor Paul de Waart. But because there is probably no better place to start a chapter which must deal with the question of how international law relates to criminal regimes, to bombing operations, or to war crimes, than in Berlin, we want to begin in that city. To be more precise, in the recently renovated Reichstag, once the place where the Dutchman Marinus van der Lubbe was arrested by the Nazis in connection with the burning of the same parliament building which recently returned to its function as the seat of the Bundestag, Germany's federal parliament. We were there to speak with a German parliamentarian who could provide an international background to the often somewhat abstract observations of Professor De Waart. Because the offices provided for members of the Bundestag were not yet ready for use, the Green MP Hans-Christian Ströbele met us in the General Reception Room, where a number of other Members were conversing with their guests. This would not prevent Herr Ströbele from saying exactly what he thought of the matters at hand. Just as directly, we explained to him immediately the reasons why we had come to Berlin.

'I am,' he said 'one of the few Green MPs who both inside and outside the Bundestag has stated his opposition to NATO's bombing in Kosovo. I consider Germany's decision to participate in this bombing to be a thoroughly wrong. I thought that when we began, and I still think it.'

'The reason why we want to speak to you,' we said, 'is that we would really like to know why.''

What exactly are your objections to the Kosovo war?

Ströbele: 'First of all, NATO's aim, that they wanted to put an end to the humanitarian disaster taking place in Kosovo. Well, the catastrophe only really got going after the bombing had begun. Before that there was fighting, attacks by the UCK, retaliatory actions by the Serbs and also, as a consequence of these, refugees, but the dimensions of the tragedy did not compare to what we have seen since just after the bombing raids began. The fact that prior to the bombing raids all foreign observers, and all journalists and aid workers in Kosovo were withdrawn, or indeed driven out, also played a role, as this meant that the last possibility of monitoring the situation was going to be lost. The human rights situation was also not improved by the war, on the contrary. Moreover the ethnic cleansings were not stopped, but merely reversed: it was no longer the Kosovo Albanians who were being driven out and murdered, but the Kosovo Serbs. For us Germans there was an addirional shameful element here, namely the fate of the Roma from Kosovo. There were around 100,000 gypsies living there, who have since been practically all driven out or killed, and hardly anyone bothered himself about this. Those amongst them who fled to Germany were treated excepotionally badly and eventually even sent back.'

Why is that particularly shameful for Germans?

Ströbele: 'Because during the time of the Nazi regime hundreds of thousands of gypsies were murdered in concentration camps. We are therefore obliged by history to concern ourselves about the fate of the Roma.'

How did the decision-making regarding German involvement proceed exactly?

Ströbele: 'The Bundestag decided at the time, with the support also of the Greens, that in the case that no diplomatic solution for Kosovo was arrived at, then NATO would attempt to enforce a solution by means of bombing. That is the first time in post-war German history that the Bundeswehr, the federal defence force, has contributed to such an action. You have to understand that those who, at the time, in the autumn of 1998, took that decision believed that it would never actually come to it. There was an assumption that Milosevic would give in at the last minute. Even after the failure of Rambouillet, on the night that the planes were already in the air, there was the idea that a telegram or something would come which would mean that none of it would be gone through with. That was the thinking in our group. And then it was morning and people found, yes, that they were all of sudden in the middle of a war. And they were so bewildered by this that they didn't even want to discuss it in the Bundestag. I was then one of the people who neverthelss ensured that a debate would take place. But also after that it was totally obvious that they didn't want to talk about it at all. And I think that all of this came from a guilty conscience, from the feeling that they wanted to shut out the whole affair.'

How is the war seen now, in retrospect?

Ströbele: 'In the Green group and on the part of our own Minister for Foreign Affairs, there is in any case no self-criticism. The feeling is that we handled things correctly. But outside our parliamentary group, in the party and amongst our voters, things are very different. Already, during the war, when for example it became known what conditions were placed on the Serbs at Rambouillet, there was a wave of criticism. And the fact that both the SPD and the Greens did so badly at the last elections has in my opinion everything to do with the Kosovo war. I hear that on the street, where what's being said is that the Greens have become the war party. That will continue to be a problem for our party for a long time.'

To which Rambouillet conditions are you referring?

Ströbele: 'I mean for example the fact that the Serbs were required to allow NATO troops on to the territory of Yugoslavia proper, a demand with which no sovereign state ever would have complied. And that the Serbs were never offered the chance to allow international troops - by which I mean not NATO troops, but troops under UN command - into Kosovo, an option that would probably have been acceptable to them, to the Serbs. If that had indeed happened, then this entire war would probably never have been necessary.'

And with this we arrived at a crucial aspect of the whole Kosovo crisis: when is a country or group of countries entitled to impose its will on another country by violence? What conditions must be fulfilled in order that a war be legitimate? We were talking, in short, about the international legal order. And so the time had come, at least on paper, to turn back to the Netherlands in order to exchange thoughts with Professor Paul de Waart, expert on international law and one of the people who during the war lodged a complaint on behalf of Yugoslavia with the International Court of Justice in The Hague against NATO and its member states. Surprisingly enough the oft-cited lack of a mandate from the Security Council turned out not to be the first argument that he brought forward against the NATO bombing. When later we brought that aspect into the discussion his views on it were just as remarkable. But first the obvious opening question.

What is your first and most important objection to the war?

De Waart: 'For me the big problem was that NATO was extremely unclear about what precisely its motives were in acting abainst Serbia. The Americans did not trust Milosevic, and fpr this, on the basis of earlier experiences in Bosnia-Herzegovina, they had of course quite a few reasons, but it determined to a large extent the strategy adopted in Rambouillet. The Americans wanted an international troop contingent in Kosovo in order to protect the Kosovars. Protection by the OSCE observers, which had already been arranged, no-one was ever actually willing to give a serious chance. On the contrary, they were already moving towards believing that in Rambouillet the Serbs must be threatened with military violence. Not for a moment was there any talk of humanitarian reasons for the use of violence. On the contrary, the threat of the air force was used because it was thought that it would be a big stick with which Milosevic would be forced to sign Rambouillet. It was thought that the threat arising from the bombing - and no ground troops, that was also made clear from the very start - would be sufficient to bring Milosevic to his knees. And so no-one actually worried themselves about the legitimacy of the use of military violence. Although they were actually overstepping the mark when it came to international law. Because under international law you can certainly force an agreement using violence or the threat of violence, but that goes only for peace treaties. All other treaties are by definition invalid whenever they have been concluded under the threat or the use of violence. So Milosevic could, so to speak, calmly sign everything, and then go to the International Court of Justice and ask them if they would declare it invalid, because it was signed under the threat of violence.'

Okay, but that didn't happen. Milosevic didn't sign.

De Waart: 'No. And then NATO had the feeling that it was no longer possible to pull back. That the threat must be realised. And on basis of that and other considerations it was decided to try using violence. Then you had this slow, I would almost say manipulation of public opinion through talk of hundreds of thousands of deaths, thorugh talk of almost a million refugees, of the pressure on Macedonia and Albania and other areas. And only then did they begin to say, we're bombing to protect human rights. In Rambouillet nobody ever said to Milosevic, if you carry on driving people out and murdering them then we will be forced to use violence. The phrase "humanitarian intervention" played no role in Rambouillet, so the legitimacy of the violence was adapted to the way in which the situation progressed. I'd go further, and this is also confirmed, what was said to the Kosovars was that if you don't sign, we can't bomb. Of course that was completely crazy. So I wasn't convinced that the Kosovars were really in accord with what was agreed, that they really wanted a pluralistic society, that they wanted autonomy within the context of the Serbian state, And since then it has become totally clear that they did not want any such things.'

In Germany the Green MP Hans-Christian Ströbele had direct access to his own Minister for Foreign Affairs, Joshka Fischer, who in turn as a member of the Contact Group was closely involved in the negotiations in Rambouillet. In fact, without the pressure from Fischer Rambouillet would probably never have taken place. The former environmental activist who rose to become the first Green minister, placed great value on the search for a diplomatic solution to the conflict - a solution which never came.

Ströbele: 'The negotiations in Rambouillet were completely successful on a number of important points. Agreement was reached on almost all points of the political section of the accord, including with the Yugoslav government. Only in relation to the military section were things different. It's clear that the Serbs in Rambouillet did not see the stationing of NATO troops in Kosovo as negotiable. But on 23rd February 1999, so that's a month before the war, the leader of the Serbian delegation wrote a letter to the members of the Contact Group stating that Yugoslavia was prepared to negotiate on the extent and characteristics of an international presence in Kosovo. In the last group meeting before the beginning of the war, I asked why it had never been proposed that an international force of troops without NATO be stationed in Kosovo. The answer was that the UCK would in that case refuse to sign the accord. The Western negotiators were therefore aligning themselves emphatically with the wishes of the UCK.

'Also, a few days after the start of the bombing the Serbian president Milutinovic (not to be confused with Milosevic, who was president of the Federal Republic of Yugoslavia, of which Serbia formed part) declared that stationing international troops in Kosovo would be possible. But NATO stated then, and this included the Federal German government, that the Serbs must first sign the Rambouillet accord, including the conditions concerning a NATO presence in the whole of Yugoslavia, with no negotiation possible on any detail at all. Only after two months of bombing and of the driving out of Kosovars did other proposals appear on the table. In a document dated 2nd June 1999 , the G7 countries proposed the stationing of civil and miltary units under the leadership of the United Nations. Such a proposal should of course have been made at Rambouillet.'

We also put the problem of the military annexes from the Rambouillet agreement to Paul de Waart.

What do you think of the argument that Milosevic could not sign the Rambouillet agreement because NATO claimed the right to act as a policing pwer throughout the whole of Yugoslavia?

De Waart: 'Agh, how can that sort of agreement come to pass? You look for an example. And a comparable condition can be found in the agreement over Bosnia-Herzegovina. In that an international troop contingent was even invited to help the warring parties to stay away from each other. So there they were also prepared to say: "you can take action throughout our territory." But I am in complete agreement with you when you say that this condition in Rambouillet was a real piece of cheek, because it was in conflict with Yugodslavia's sovereignty. So that is a formal objection to this condition. But there were also practical objections. There was also then already an idea that Milosevic might possibly be on a list of potential suspects at the Yugolslavia tribunal, which could have meant that Milosevic, by agreeing to an article of this type regarding unlimited freedom of movement for NATO troops in Yugoslavia, would make himself vulnerable to arrest by foreign troops in his own country. This was also in this respect an absurd condition.'

From what later came out regarding the negotitaions in Rambouillet, one could gather that the way in which the annexes turned out to be in the agreement was not completely clear for those involved. Or as Hans-Christian Ströbele in Berlin recollected, 'The Russians' role in Rambouillet was of course extremely important. They formed a bridge between the West and the Serbs. But when the military section of the agreement was on the table, the Russians were shoved to one side.The Russian representative Mayorski announced late on at Rambouillet that Annexes 2 and 7, in which the military questions were regulated, had not been discussed with him and that he could not agree with their proposals. That concerned also the consvious authorisation for NATO troops to be allowed to operate on Yugoslav territory.'

It's time to leave the international legal and diplomatic squabbles of Rambouillet behind and look at the bombing itself, because this doesn't only raise legal questions, but also of course those of a moral nature. We first put a number of questions to Paul de Waart.

NATO considered itself, because of its higher goals, justified in bombing places in which it was known that there would be civilians, places to which people would come. How is this moral aspect seen in international law? Does there exist something like a collective guilt of all Serbs for the aggression against the Kosovars?

De Waart: 'An aggressor's guilt is indeed recognised in international law. The Germans and Japanese had a collective guilt after the Second World war. An individual German could noy say, 'I was a resistant, so I don't have to contribute to war reparations. The same went for Japan. But at the same time you cannot hold the individual citizens of an aggressor state, and certainly if it is a dictatorship, responsible as individuals for that aggression. In other words, there is indeed a guilt of the population as a whole, which must be carried. That's what you can call the risk-liability. In this case, the fact that you live in Yugoslavia and are a Serb makes you vulnerable to the possibility of military damage. But just because the fact that this damage can also be inflicted on individual citizens who, as individuals, are entirely blameless, there are within international law all sorts of stipulations designed to offer civilians the best possible protection. So you can't use all kinds of weapons in all kinds of circumstances. You can't bomb things of cultural value. You cannot shoot prisoners of war in occupied areas, to mention a few examples. So there have been established all sorts of rules which protect these people as far as is possible, people who are not directly combatant, in time of war. It's like this - even in a war you can't deliberately kill people, you can only - however crazy this might sound - take them out of the fight.'

Say that one of the relatives of a repairman in this TV studio bombed by NATO should say that here a person was deliberately killed who had no part of the practices of Milosevic and his men in Kosovo. This is murder. Can such a person make a complaint to NATO, or to the US, or the Netherlands?

De Waart: 'No, that is not foreseen in international law. But he can bring the matter before his own courts. And then he can make the complaint against anyone he wants to. The Yugoslav judge will then have to look at whether he is competent to handle the case. And assuming that he does declare himself so competent - he is therefore not dependent on the US or on the international court, this judge can for example condemn Clinton or Blair to so many years in prison. Or he can order the US or the UK to pay damages to this gentleman. This gentleman will then receive a verdict on the basis of which he can have American or British property sequestered. To date that is the only way.'

To what extent does the fact that NATO acted without a Security Council mandate offer legal points of entry?

De Waart: 'Legally you can do little with this. Humanitarian intervention in the sense of military action for the protection of human rights is something which can be decided on by the Security Council, as in Iraq with the no fly-zones - whatever you might think of that - or by individual states. If an individual sees someone in the water who is in danger of drowning then he can, no, must even, help. And if a state determines that another state is terrorising its own population and breaching human rights, then that state can say, this is so terrible, we're going to intervene. And if a number of states say that they are going to do that together, and for that purpose want to use an international organisation such as NATO, you would strictly speaking also be able to defend that.'

But is that in your opinion desirable? Because NATO has in the meantime in its new charter asserted that what happened in Kosovo should be able to happen elsewhere.

De Waart: 'I think that you then first have to answer the following question: is NATO a self-defence organisation - which you can put forward grounds for - or is it a regional security organisation - which you can also put forward grounds for? NATO has to date deliberately left this open. The point in particular is that a self-defence organisation can only act whenever there is a question of self-defence, while a regional security organisation can also act in its own region whenever peace and security must be preserved. If you read the United Nations charter, you will see that a regional security organisation can act whenever there is a civil war in a member state. Then you don't have to wait for a decision from the Security Council. If the state cannot cope, the regional organisation takes it on itself, and if this cannot cope or if there is the threat of a conflict within the regional organisation, only then do you have need of the Security Council. So it isn't always the case that you must first have the permission of the Security Council before you can intervene somewhere. But NATO wants to have it both ways. It is no longer strictly an organisation for the self-defence of the affiliated countries, but is also of course not a regional security organisation, given that Canada and the US are represented within it as well as the European countries. Or you would have to say that it is a region of rich countries as opposed to poor countries, but that is an economic criterion and not a geographic one.'

Do you think then. taking everything into account, that NATO exceeded its authority under international law in intervening militarily in Kosovo without a mandate from the Security Council?

De Waart: 'Once again, considering the use of violence in order to force an agreement, I would say yes. But if you say that it was in the end a humanitarian intervention, then you can build a case that no decision of the Security Council was needed.'

And that is what is now being said.

De Waart: 'Exactly, that's why they do that now, that's why they use the concept of humanitarian intervention. But for such an intervention there are also rules under international law. There must to begin with be evidence of mass breaches of human rights, which must be objectively confirmed. Then all possibilities for a peaceful solution must have been blocked. Any violence used must in addition be proportional and, moreover, effective. Now look at Kosovo and put the question, were all possibilities of a diplomatic solution exhausted? My answer would be 'no'. Was the violence then proportional to the goal which they were seeking to achieve? No, that was also not the case. And was it effective, was the humanitarian catastrophe prevented? No, this was equally not so. None of the conditions was fulfilled. On this basis I believe that the Yugoslavs have a case at the International Court of Justice. Unfortunately it will be a little while before it become clear whether the Court thinks the same way about it.'

We also asked Hans-Christian Ströbele about the legitmacy of NATO violence. His reasoning was not juridical but moral, but his conclusions were not so far removed from those of De Waart.

Ströbele: 'If you justify the bombings with the argument that they had as their goal the stopping of ethnic violence in Kosovo and the prevention of a humanitarian tragedy, as NATO does, then you can only conclude that this mission failed, and therefore that the moral justification is lacking. Over the continuation of ethnic violence, but now in reverse form, we have already spoken. But the NATO bombs and rockets on bridges, roads, railways and residential districts also naturally sowed a great deal of hatred and anger amongst the Serbs. The Serbian paramilitaries and soldiers held their Kosovar victims responsible for these bombs and their terrible consequences. They claimed that UCK members and sympathisers, including women and children, helped the NATO pilots to find their targets using radio connections and mobile phones. Whether there was any truth in these accusations or not, this propaganda contributed to the atrocities and to the driving out of people. Because the Serb military could do nothing about the unreachable NATO planes, they took it out on the population. And that that would happen was predicted by many beforehand.'

Does all of this mean that the NATO bombing must be considered an act of aggression?

Ströbele: 'That seems to me an unavoidable conclusion.'

De Waart was more nuanced, as befits an international jurist: 'If you reason formally, then you have to say that aggression can under existing international law only be committed by states against states, not by international organisations against states, not by peoples against states or by states against the people. So an international organisation cannot be formally guilty of aggression. But NATO is an organisation of states, and these states can indeed be guilty of aggression. In other words, you cannot summon NATO before the International Court of Justice for committing aggression, but its member states you can. That is what Yugoslavia has done. And the next question is then whether this aggression was directed against Yugoslavia. To which NATO says, no, it was exclusively directed against Milosevic with the aim of helping the Kosovars. And along with this you immediately bring the next problem into view, namely the protection of the right of self-determination of peoples. That right is recognised. And on the basis of that right a people that is oppressed can in the end split away and form a new state, for example an independent Kosovo, or join another state, for example Albania. There are, however, many ifs and buts to this. The right to self-determination is recognised by human rights treaties, so it is a right of individuals, but it is linked to peoples, not to minorities. Minorities have also the right to self-determination, but to a cultural self-determination. A minority cannot form its own state. If the Turks in the Netherlands are oppressed, they have the right to protection, but they do not have the right to say, 'right, we're seceding from the Netherlands.'

And the Kurds in Turkey, for example?

De Waart: 'Then the question is, when is it a matter of a minority and when a matter of a people? There are different opinions about this, none of which is as yet absolutely established. That's because the existing states believe that international law protects their pluralistic nature. So no-one wants to go to a situation in which every state consists of one people, however you would want to define that people. Okay - if you ask, what is the most characteristic difference between a minority and a people, you could say that peoples are minorities or majorities which have built up historic rights within an organised state. Now the problem of course is that every minority is inclined to say "we have an historic claim on this ground. That could happen after a hundred or two hundred years with the Turks in Germany. They could say, we have been here in Beieren for so long, as an oppressed people, that we have a right to our own country. So actually you have to have an international land register in which the territorial rights of peoples are laid down, as a basis for possible claims for self-determination, in the case where there is a question of oppression. Because self-determination isn't an end in itself, but a means - that's in all the documents - state formation is also no end in itself, but a means to achieve self-determination.'

And in Kosovo now you have the strange situation where the West on the one hand gives its help to the Kosovars but on the other does not honour their wish to become independent. Kosovo must also for NATO remain always an integral part of Yugoslavia.

De Waart: 'Yes indeed, but that isn't in conflict with the Kosovars' right of self-determination. The conflict is only over their right of secession, and that's something else altogether. You can say that the Albanian Kosovars have a historic right to Kosovo. But the same also goes for the Serbian Kosovars. In Europe the collapse of Yugoslavia, but also of Russia, was originally seen as an internal affair. It was said that if these people agree amongst themselves to go their own ways, then so be it. But from the standpoint of the international legal order this was an extremely unfortunate development. Because you of course had to ask yourself whether the states created were viable. Is an independent Chechenya viable? And what about an independent Slovenia? That is in itself perhaps viable, but at the same time you have to conclude that this would be at the cost of Serbia. Within Europe the Union for example would never accept that the Po region secede from Italy, you can bet your life on that, because it would be at the cost of the rest of Italy. So the question of whether the struggle for independent states in former Yugoslavia or Russia should be supported is not so easy to answer.'

Which in itself brings us back to the question which arose earlier in the book on a number of different occasions. What were the Germans thinking of when they forced the recognition of Croatia and Slovenia on European countries?

The German MP Hans Christian Ströbele: 'In my mind the government of the day wanted to enhance its influence in the region, and this could be done by strengthening the bonds with those countries or peoples with which Germany had felt linked since way back. They thought it would be easier to cooperate with them than with the Federal Republic of Yugoslavia. I thought and continue to think that this was of course an extremely bad thing. Especially when it came to Croatia. As you know, Hitler's Germany had at the time good links with Croatia, and not just Tudjman but also other leading figures from that country always feel still very much at home with the mindset of those days.'

Has anyone ever asked Genscher what his motives were?

Ströbele: 'No, I don't believe so. There are still many question marks over this. Genscher was an exceptionally successful minister of foreign affairs, and moreover of great electoral importance to his own party, the liberal FPD . The fact that he in spite of this and without any clear explanation withdrew from politics could of course have had to do with the fact that he knew that he had made big mistakes in Yugoslavia and that he didn't fancy waiting for the consequences of that for his own political career. He has always managed to avoid concrete questions over this.

There was still one matter about which we wanted to speak with Paul de Waart, and that was the role of the Yugoslavia Tribunal, which for the last few years has been trying to put the biggest wrongdoers from former Yugoslavia behind bars.

How do you see the role of the tribunal?

De Waart: 'That I find a very difficult matter. I was in 1993, when it was established, strongly opposed, and I remain so. Because I think that the Security Council is not the body to establish this sort of tribunal. It is I think good to remind ourselves how this decision was arrived at. We had then just behind us the Rwanda atrocity, and actually you had then to consider that the West and especially the United States did not want to do anything. While public opinion was demanding that something be done. At the same time the first investigations were taking place into all those mass graves in Bosnia-Herzegovina. That also led a lot of people to think that something must surely be done, that those responsible must be punished. Then it was being said that a tribunal for both Rwanda and Yugoslavia must be created, and the Americans agreed to some extent, because then something happened in each case. It had more to do with the psychologichal effect than with the question of whether the tribunal would really accomplish very much. Then however the question arises, how do we do that? Because if you are to set up a tribunal on the basis of a common will between states - such as has occurred in the case of the permanent court which is now being established - then we can say categorically that Yugoslavia and Rwanda would not go along with this. So what was being sought was a means to arrive at this identity of will, and then what was said was, let's take Chapter 7 of the UN charter, which offers the Security Council the possibility of instituting an aid instrument. That's binding on every state, including Rwanda and Yugoslavia.'

So what is your objection to this?

De Waart: 'My objection is that an instrument established for the preservation of peace and security can set up an obstacle for just this preservation of peace and security. You create a court that must judge the inhabitants of a state, or of a number of states, without the state or states having created the basis for such. And you must therefore also immediately see the problem. In Dayton both Tudjman and Milosevic were present, while everyone was convinced that both gentlemen could qualify for a trial by the court - if not for genocide then for serious breaches of human rights. But no-one wanted to arraign them, because they were so necessary to the preservation of peace and security which is what was being sorted out in Dayton. And since then you have had to contend with the opposite problem. Because now Milosevic has been arraigned, you can ask youself whether the establishment of peace is possible in Kosovo without Milosevic. The chances of this are to date not clear. Then there's another point. You could in the meantime certainly conclude that judges in both tribunals have done exceptionally valuable work, that they have gone at this work extremely seriously. But the public plaintiffs are playing politics, and that has not been called to account.'

Are you referring to the making public, by Louise Arbour, of the order to hunt down and arrest Milosevic, at the time of the Kosovo war?

De Waart: 'For example. That was a really bad business. She may have been perfectly right about the evidence, although you can put a question mark over the claim that in Kosovo evidence against Milosevic was piling up, but that's not nearly so interesting. After Bosnia there were enough grounds for pursuing Milosevic. But as public prosecutor you cannot of course say that there's pressure being exerted upon you not to do it, by all sorts of countries, but I'm independent and I'm going to do it anyway.'

Don't you also have to address this separation of political and judicial power?

De Waart: 'No, what appeals to me is the principle of opportunity, by which I mean the time in the Netherlands, for example, that it was decided that there would be no prosecution of Prince Bernhard regarding the Lockheed affair because this would be in conflict with the general interest. Now quite apart from of what you might think about that, the fact that the possibility exists to make such a decision - one which by the way can be appealed - is extremely important. It is not for nothing that the public prosecutor comes under the responsibility of the Ministry of Justice. This already means that whether to pursue a matter or not is a political decision. And it has to be, moreover, because only a politician is in a position to weigh up the possible consequences.'

Arbour at a certain point went so far as to say that if the arrest warracnt against Milosevic were to prolong the war, that would not be her concern.

De Waart: 'That is, however, complete madness.'

But who was it then who should have called her to order?

De Waart: 'That's the big problem. The Security Council has created a sort of monster. If you want to rein this monster in, you can rightly say that there are legal procedures to be followed, but when that doesn't happen... So let's say that Ms Arbour's actions undermine the international legal order rather than strengthening it. If you asked me whether I would have wanted to be that court's public prosecutor I'd say, not for any money. If you asked me if I'd want to be a judge there I'd say, also not for any money. Because what gives this court its legitimacy.

Should Arbour have decided to put the arrest warrant for Milosevic on the secret list instead of on the public list?

De Waart: 'That would have been even worse. Even ignoring the fact that these secret lists must be seen as a travesty of the international legal order. Whether or not you're on Interpol's list isn't generally known, but normal criminals know whether or not they are being sought. Now say that a Serbian general goes to Vienna and is arrested there, because it turns out that he is on the tribunal's secret list. Then that would mean that you can never again take Milosevic to the negotiating table. So you're no futher on than you are now. And the big problem now is that you can't arrest Milosevic and if indeed you could pull that off you would be faced with the question of whether he would not be exchangeable. Or whether the Serbs wouldn't then say, that's it, we're taking back everything we've agreed to date. As long as Milosevic isn't tried and convicted in his own country, at least by the people, the problem won't be solved. That crime should be punished is a practical approach to rapists, traffickers in women and drug dealers. But why have we, all of us, always thought that people suspected of political crimes should not be sent back to their own countries? That someone who is suspected of a political crime can't be extradited? It's because political crimes are different. Milosevic says that he shoots down terrorists who want to secede, while these people themselves say that they are involved in a liberation struggle.'

But in Nuremberg and Tokyo didn't people stand trial for their political misdeeds?

De Waart: But you can't compare the Yugoslav tribunal to those. In those cases it was a matter of a trial of the defeated by the victors.'

And do you think that was a good thing? Or not?

De Waart: 'I think it was good, but I would have liked the victors to have been judged alongside them. When you see in Hiroshima the official documentation of the Americans, in which it says that Hiroshima was bombed because it was an open town while Nagasaki was chosen because it was in the mountains, with the aim of comparing the effects of the two atom bombs, then I'd say that that was the clearest war crime. But the Americans were never brought to trial That's why I'm the biggest supporter of a international court of justice, but a court which on the one hand can operate without regard to person, while on the other hand it is answerable to a political body which is above it. You could for example say that the Security Council is responsible for peace and security in the world, so I'm giving to this council the political responsibility to direct the public prosecutors. If someone doesn't agree with the non-prosecution of a complaint, then they must appeal to the international court which can then tell the Security Council to change its decision. But the prosecution of persons, certainly of political persons, must in the end be a political responsibility. Just as the decision as to whether or not to employ violence must be a political decision.'

See Also

Chapter One

Chapter Two

Chapter Three

Chapter Four

Chapter Five

Chapter Six

Chapter Eight

Chapter Nine

Chapter Ten

Chapter Eleven