International Law Should Not Be Victors' Justice. Indicted or convicted war criminals are all citizens of small, poor countries

By Richard Gwyn, The Toronto Star, 4 July 2001

The other day the Los Angeles Times ran an op-ed piece by freelance journalist Robert Scheer arguing that Robert McNamara, the U.S. defence secretary during the 1960s, ought to be tried as a war criminal for his conduct during the Vietnam War.

Scheer wrote: (Former Yugoslav President) Slobodan Milosevic is accused of using military force to wage a campaign of terror against the civilian population of Kosovo. Yet it was McNamara who defined the largest part of the Vietnamese countryside, populated by peasants, as a free-fire zone.

Scheer is being extreme. But he has a point.

So also does Richard Falk, professor of international law at Princeton, who when asked on a recent BBC-TV program whether Israeli Prime Minister Ariel Sharon had been guilty of a war crime when he failed to prevent a massacre of Palestinian refugees in the Sabra and Shatila camps in Lebanon, answered, No doubt whatsoever.

And so did British journalist Christopher Hitchins in his recent book describing former U.S. secretary of state Henry Kissinger as a serial war criminal for his actions in Vietnam, in Chile, in Cyprus.

Yesterday, Milosevic appeared in court in The Hague to hear the charges against him - genocide and violations of human rights in Kosovo. The actual trial will probably be held next year.

While, of course, innocent until proven guilty, the case against Milosevic is overwhelming. An eventual guilty verdict is all but inevitable.

Universal applause has greeted Milosevic's handover to the United Nations special tribunal. His conviction will similarly be applauded and will enable Yugoslavia to fully re-enter the community of nations, even though Milosevic's actual delivery to The Hague was done under suspect legal circumstances (the Yugoslav constitution provides for him to be tried first in Belgrade).

Everywhere, so it seems, those who violate human rights have had their immunity stripped away from them.

Former Chilean dictator Augusto Pinochet is under arrest and his future depends upon the determination of a Chilean high court about whether he is mentally and physically fit to stand trial. Former Peruvian internal security chief Vladimiro Montesinos has just been extradited from Venezuela to stand trial for corruption. Former Argentine president Carlos Menem is under house arrest pending being charged with illegal arms sales.

And while the wheels of international justice grind slowly, they do achieve their goals. Former Rwandan prime minister Jean Kambanda has been convicted for genocide by the U.N.'s special tribunal in that country (he's the first head of government to be charged as a war criminal, not Milosevic, as has been said many times this week). Convictions against less-important figures have been secured against those who committed war crimes in both Bosnia and in Rwanda (in the latter instance, including two nuns).

There is, though, a troubling characteristic about all these indicted or convicted war criminals. They are all citizens of small, and usually poor, countries.

The only inquiry into potential war crimes committed by the public officials of large, wealthy and powerful countries has been the U.N. special tribunal's examination of charges that NATO's bombing of Serbia, a part of which was targeted at civilians, was a war crime. (The tribunal rejected the accusation.) As well, a Paris judge examining charges against Chile's Pinochet has asked Kissinger to give testimony (Kissinger was in Paris, but said he was too busy to attend).

A defence for this one-sidedness exists. Industrial democracies have mechanisms (a free press, a political opposition) to examine publicly their own past - by the U.S. of its actions in Vietnam, for example, or currently, by France of its use of torture in Algeria.

The U.N.'s special tribunals for Yugoslavia and Rwanda, and eventually the international criminal court, in effect extend the rule of law of democratic states to those parts of the world where to be in power has been, until now, to be free to do almost anything.

Nevertheless, the disparity in the treatment between leaders in rich and poor countries will eventually become too obvious to be sustainable. And, if perpetuated, it will severely undermine the authority of the system of international law, causing it to be seen as merely victors' justice with a few juridical trimmings to give it legitimacy.

Sooner or later someone like Kissinger or McNamara or Sharon, is going to have to be indicted and then be brought before an international criminal court to answer for his actions, just as is being done to Pinochet and Milosevic and the others.

Either international law applies to all or it is, indeed, just victors' justice.