Francis Hoar: Mladic, Gaddafi and the limitations of international justice

Francis Hoar is a Barrister who writes on constitutional affairs and law reform in legal journals and on politics on his own blog. He is also the author of a chapter on a British Bill of Rights in The State of Civil Liberties in Modern Britain.

The arrest and extradition of Ratko Mladic, during Nato’s intervention in a conflict justified by a doctrine Mladic’s crimes helped encourage, is an opportunity for reflection on the uneasy balance between international justice and humanitarian protection.

These two principles are the lasting legacy of the Yugoslav conflicts on which, in most other respects, the West can look back only with shame.  From 1991 it was apparent that the Serbian-led rump of the Yugoslav Federation would stop at nothing to prevail in its plans for a Greater Serbia.  In that year, Yugoslav troops entered Croatia, ostensibly to protect its Krajinan Serb minority, and embarked on a savage campaign against the civilians of Vukovar, leading to a massacre of 264 civilians in a hospital.  The support of militias by the Yugoslav Army was to be a feature of the Yugoslav Wars up until the Kosovan conflict in 1999, one that was widely reported from the start.

Yet the leaders of the West did nothing.  Inaction and hand wringing preceded the imposition of an arms embargo not on the Yugoslav rump but on all territories of the former Yugoslavia. This embargo continued as Mladic – a Yugoslav Army general – was shelling the civilians of Sarajevo, a crime described in a subsequent war crimes prosecution as “an episode of such notoriety in the conflict in the former Yugoslavia that one must go back to World War II to find a parallel in European history. Not since then had a professional army conducted a campaign of unrelenting violence against the inhabitants of a European city so as to reduce them to a state of medieval deprivation in which they were in constant fear of death.”

This was the background to the Srebrenica massacre.  It would be hard to imagine more graphic warnings of the depravity and inhumanity of which Serbian forces were capable.  The reaction of the West was to send UN Peacekeepers whose blue berets marked them out as impotent onlookers in an escalating campaign of genocide.  Too late did Clinton order the targeted bombing of Serbian forces.  Too late was Nato military power deployed with sufficient force to bring Milosovic to the negotiating table.  Too late did Western leaders remember that genocide “whether committed in time of peace or in time of war, is a crime under international law” which they had undertaken under a 1948 UN Convention to “prevent and to punish”.

Those who question the international intervention to protect civilian casualties in what was already a Libyan civil war should remember those years.  The Libyan intervention followed indiscriminate murder of civilians eerily reminiscent of the Siege of Sarajevo.  Gaddafi’s use of mercenaries and his murder of civilians was described by the International Federation for Human Rights as a ‘strategy for scorched earth’ that demonstrated a ‘desire for widespread and systematic elimination’.  Though the Nato reaction may not have resulted in the swift decapitation of the regime many have come to expect from Western intervention, it has protected the cities of eastern Libya and the civilians within them from devastation.

But it is precisely this stalemate and Gaddafi’s refusal to leave power that should lead to questions about the relationship between humanitarian intervention and international justice.  Few now would question the recovery of international humanitarian law in the late 1990s after a hiatus of fifty years.  The crimes of the Balkans, Rwanda and (later) Sierra Leone and Sudan have led to a recognition of the importance that individuals throughout the world, wherever they may be and however much protection they might have from states such as Serbia, will never be able to live without fear of apprehension and justice.  Yet the means of ensuring that this is so must also recognise the sometimes unattractive consequences of international relations, one of which is that the most efficient means of ridding countries of their tyrants is by offering them asylum elsewhere.

Such unsavoury negotiations are said to be proceeding between Russia and the United States with the aim of allowing Gaddafi’s exile.  These negotiations would be taking place in the face of decision of the Chief Prosecutor of the International Criminal Court’s (ICC) last month to issue a warrant for Gaddafi’s arrest.  The consequence of the warrant is to require that all signatories to the Rome Convention establishing the ICC, which include Russia (though it has not ratified the Convention), do not act in any way that would ‘defeat the object and purpose’ of the Convention.  Not only would such negotiations (which have never been admitted) breach the treaty obligations of Russia and any other Convention signatory, it is arguable that any signatory permitting its airspace to be used to allow an ICC fugitive escape justice would also – no moot point as Egypt is also a Convention signatory.

Of course it is impossible to know whether a man as unstable as Gaddafi would consider exile were it more readily available.   Yet the examples of Idi Amin and Mobuto Sese Seko suggest that the prospect of exile can persuade leaders facing inevitable defeat to step down, something that would be far less attractive were they to be faced with the prospect of arrest and incarceration.

The international community’s recognition of the need both to prevent and to punish crimes against humanity is one of the most welcome developments of the last twenty years.  The prospect of justice for the perpetrators of the most evil acts, wherever they may hide, is welcome not only to their victims but to a world order in which sovereignty cannot be a defence to acts of particular savagery against civilians.

But the first priority must always be to prevent the loss of life, including where that is best achieved by pragmatic approaches to conflict resolution that may lead to the speedy dissolution of tyrannous regimes.  In issuing an arrest warrant for Col Gaddafi, the ICC may have made that impossible.  Justice must never come at too high a price.