I n t e r n a t i o n a l C o n f e r e n c e
The Hague Proceedings against Slobodan Milosevic: Emerging Issues in International Law
The Hague, Saturday, 26 February 2005
THE ROTTEN FOUNDATIONS OF THE HAGUE TRIBUNAL
by Professor Velko Valkanov
There is no doubt that the Hague International Criminal Tribunal for the Former Yugoslavia does not have the necessary legal foundations. It was created by resolution of the Security Council, and the Security Council, as it follows from a simple review of the provisions of the U.N. Charter, does not have the powers to create organs of justice.
It is possible, of course, that sometimes law turns out to be insufficiently developed to be able to regulate all cases requiring regulation. On such occasions it becomes necessary to resort to solutions based not on law but on morality. It is therefore possible to find oneself in a situation, which is not legal but is nevertheless moral, and on this basis to render it our support. This should still be possible only when morality is so categorically pronounced that we can see in it a future law. In other words, the morality used here as a regulatory method, without being law today, should be law tomorrow. In any case, Kant’s categorical imperative should find its application here, namely: “Act in such a way that the rule of your behaviour could turn into a general rule.” Morality which cannot be proposed as morality for all, i.e. as all-human morality, is no morality. It is its direct negation.
It could be assumed in view of the above that the Hague Tribunal, although lacking legal foundations, still has its moral foundations, that it is, in other words, a moral necessity. Such an assumption, however, would be quite unfounded.
The moral foundations of an institution have their source in the morality of those who created it. Regrettably, the leaders of the states, to which the establishment of the Hague Tribunal is primarily due, are definitely devoid of any morality. They have no morality, they have only and solely interests – personal and group interests. Thus the Hague Tribunal itself also proved to be devoid of moral foundations. It is impossible for a court created by criminals to have other characteristics but the characteristics of the criminals themselves. It will not overcome crimes, it will reassert them. In the best of cases it would be an imitation of a court of law and, therefore, undisguised mockery of justice.
The thesis that those who established the Hague Tribunal are completely devoid of morality and are therefore devoid of the right to established genuine organs of justice, is supported by two fundamental arguments.
The first fundamental argument. It is not possible to assume morality in people who unscrupulously violate the most essential norms of international law, the norms, which concentrate the morality of the highest nature – the all-human morality.
International law prohibits waging aggressive wars. No war can start without the sanction of the Security Council. Started without the sanction of the Security Council, a war turns out to be an aggression and therefore, a grave international crime.
Nevertheless, the United States and the other NATO member states started an aggressive war against Yugoslavia. Thousands of innocent civilians were massacred or wounded, dozens of enterprises, hospitals, schools, media centres were destroyed. This war started in violation not only of the U.N. Charter in so far as it did not have the sanction of the Security Council, but also of the Northatlantic Treaty itself.
The United States, together with some of the NATO member states – Great Britain, Italy and others – also started a war against the Republic of Iraq – again without having the sanction of the Security Council. In order to justify their aggressive war against a sovereign state, a U.N. member, the U.S.A. and their allies used totally concocted grounds. Iraq was occupied, and its people – for two years now – have been subjected to extermination.
International law prohibits waging a war with means and methods going beyond the usual norms of waging a war.
In the course of the war against the Serbian and the Iraqi peoples the United States and their allies violated all bans established along this line. Combat means were used (for example, depleted uranium) affecting primarily the civil population. The people of Iraq are in fact subjected to genocide – nearly 150 thousand Iraqis have been massacred so far. Crimes against humanity and war crimes are perpetrated on a mass basis. A number of other acts expressly prohibited by the Geneva Conventions for the Protection of Victims of War of 1949, the Convention relative to the Protection of Civilian Persons in Time of War, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1945 are being carried out.
Drastically violated are the Convention relative to the Treatment of Prisoners of War and the Minimum Standards of Treatment of Detainees. The media have reported monstrous abuses of Iraqi detainees at the Abu Ghraib prison. One can also imagine what is happening to the detainees at the Guantánamo U.S. base. The extremely low morality shown by military personnel of the occupying states, is a reflection of the morality of their superiors and state leaders. Cruelty shown in a civil war where behaviour is guided above all – if not only – by a feeling of revenge, is one thing while cruelty shown at prisoners-of-war camps and prisons, which are fully under the control of the respective military authorities, is quite another thing. In this case it is not so much the cruelty of an individual but the cruelty of the system and of those representing and directing it that finds expression.
Therefore, the question is inevitable: how can it be possible for perons who have shown such blatant disregard for generally recognised norms of international law and for the all-human morality underlying them, who have thus perpetrated the gravest crimes against peace and humanity, to established international criminal tribunals for trying persons accused of perpetrating precisely such crimes. This is a manifestation of incredible cynicism. If any people should be tried for crimes against peace and humanity, these are first and foremost the leaders of the United States and the other NATO member states. It is only after they have been brought to court that it would be possible to think whether some other persons shouldn’t also be brought to criminal justice for perpetrating such crimes.
The second fundamental argument. The international community established in 1998 the International Criminal Court, whose competence covers trying the gravest international crimes: aggression, genocide, crimes against humanity, and war crimes. The predominant part of states has ratified the Rome Statute for establishing this court of law. The U.S. administration, however, refuses to ratify the Rome Statute. What is more, it began exercising gross pressure on the states, which have ratified the Rome Statute, forcing them to renounce implementing it.
We are faced again with an extreme manifestation of cynicism. What do we witness? A state, which demands with all its fierceness to bring citizens of other states before international courts of law for alleged crimes perpetrated by them, refuses that its own citizens be brought before these or other tribunals for the same crimes. There is not a trace of legality in this behaviour. The law is a general measure. It does not bear double standards. Anyone who applies one standard to himself and another standard to others, has nothing to do with the law. But he has nothing to do with morality, either. Actually before violating law, such behaviour violates morality. Only someone who is utterly devoid of morality can judge others for what he himself refuses to be judged for.
Thus the conclusion is categorically reasserted that the Hague Tribunal is indeed devoid both of legal and of moral foundations. It is a genuine cancerous growth in the texture of law and morality. It represents a serious danger to the legal and moral health of the international community. Each day of its existence is poisoning the social atmosphere in the world. For this reason it should be immediately disbanded. If as regards some of the defendants the grounded assumption still exists that they have perpetrated one or another international crime, these persons should be brought to criminal justice either by the national law courts or by the legitimate International Criminal Court.
The Hague Tribunal, this congenitally illegal and immoral organ, enhances this characteristic even further through the behaviour of its members. It becomes ever more apparent that these “judges” do not administer justice – they lynch. Their task is not to apply the norms of international penal law but to execute the instructions of those who have appointed them. They grossly violate both the norms of objective law and the subjective rights of defendant Milosevic. They show an utterly unfair attitude, an attitude fully devoid of humanity to defendant Milosevic. By holding him for years on a regimen incompatible with his health condition, they obviously seek a non-judicial outcome of this non-judicial trial. We have all the grounds to worry that before convicting him they will kill him. History will not forgive them this sin, this crime.
