Commentary & Analysis:
By Robert M. Hayden
"Justice is the right to do whatever we think must be done, and therefore justice can be anything".—Mesa Selimovic, Death and the Dervish
Many American lawyers, commentators, and politicians view the International Criminal Tribunal for the Former Yugoslavia (hereafter, ICTY or the Tribunal) as a manifestation of the triumph of law and justice in international affairs, since those who violated international humanitarian law and the laws of war were not shielded by state sovereignty.
The ICTY, however, delivers a justice that is biased, with prosecutorial decisions based on the personal and national characteristics of the accused rather than on what available evidence indicates the person has done. This bias is seen in the failure to prosecute NATO personnel for acts that are comparable to those of people already indicted, and in the failure to prosecute NATO personnel for prima facie war crimes. This pattern of politically driven prosecution is accompanied by the use of the Tribunal as a tool for Western countries, especially the United States, to pursue political goals in the Balkans. Further, the Tribunal's rules -- some of which resemble those of the Spanish Inquisition -- and procedural decisions make it difficult for defendants to receive a fair trial.
The politicization of the Tribunal is itself an important topic, but there is a larger issue. The facts of the situation are well known. Yet my arguments are certainly not accepted by most of those who claim to be human rights advocates. Why not? The answer lies in the transformation taking place in concepts of human rights: instead of protesting the application of state violence on non-violent dissidents, activists are demanding the application of massive violence on states deemed to be inferior. I see this transformation as being from human rights to human rights-ism, and by adding the "ism," I seek to show how far the human rights movement has repudiated the principles it professes to embody. The ICTY is a particularly striking manifestation of humanrights-ism because of the high principles that are routinely invoked to justify it.
One glaring example of politicized justice is the failure of the ICTY Prosecutor to indict NATO leaders for the use of cluster bombs. This prosecutorial standard was set in July 1995, when Milan Martic, president of the self-proclaimed Serb Republic in Croatia, was indicted for violations of the laws and customs of war on the grounds that he had ordered the May 1995 missile attack on Zagreb. According to the indictment, what made the bombardment a war crime was that the missiles had been fitted with cluster warheads. Seven civilians were killed and many more wounded, and damage was done to a home for the aged and to a children's hospital.
Why, then, have there been no indictments of NATO's May 7 attack on the city of Nis, where cluster bombs fell on the market, killing fifteen people, and hitting also the city's main hospital? It is not acceptable to say that NATO was only aiming at military targets and missed; after all, Martic maintained that he was aiming at military targets in Zagreb. The ICTY Prosecutor, Carla Del Ponte, has taken the official position that cluster bombs are suitable not for use against military targets but only to kill people. While the Prosecutor says that Martic targeted cities intentionally, this is also true of NATO generals, especially the American ones, who were even complaining that French politicians did not permit them to attack more sites in Yugoslav cities.
In late December 1999, the ICTY Prosecutor did state that she was investigating NATO's conduct during the Kosovo war, including the question of the use of cluster bombs. However, within days, tribunal officials declared the investigation a preliminary document that was highly unlikely to lead to indictments or even to be published. The Prosecutor had said that if the report indicated that NATO broke the Geneva conventions she would indict those responsible; however, four days later she issued a press release stating that NATO is "not under investigation by the Office of the Prosecutor. . . . There is no formal inquiry into the actions of NATO during the conflict."
This quick about-face may have been unrelated to U.S. government denunciations of the reported inquiry into NATO's actions. But another possibility is suggested when one examines the responses of official NATO spokesperson, Jamie Shea, to questions about the possibility of NATO liability for war crimes before the ICTY. According to Shea, "NATO is the friend of the Tribunal. NATO countries are those that have provided the finances to set up the Tribunal, we are among the majority financiers" (May 16); "NATO countries have established these tribunals [and] fund these tribunals" (May 17). No wonder Shea was "certain" that the Prosecutor would only indict "people of Yugoslav nationality."
When the Prosecutor fails to act, human rights organizations might be expected to try to shame them into doing so. Human Rights Watch (HRW), however, has done the opposite, seeming to assist in efforts to shield NATO personnel from possible liability before the ICTY.
To its credit, HRW has recognized that NATO's actions in its war against Yugoslavia signaled "a disturbing disregard for the principles of humanitarianism that should guide any such action" (HRW's World Report 2000) and particularly criticized NATO's use of cluster bombs. The report also demonstrated that some of NATO's attacks on Yugoslav infrastructure were clearly in violation of the Geneva Conventions. Yet, while acknowledging that "NATO violated international humanitarian law," HRW has proclaimed that it found "no evidence of war crimes" by NATO (Civilian Deaths in the NATO Air Campaign, HRW report, February 2000). Apart from her public denial of any implication that violations of international humanitarian law are less serious than war crimes (genocide, after all, is the former, not the latter), judging from her Martic indictment, the ICTY Prosecutor would seem to disagree with HRW's assessment of the use of cluster bombs. At the same time, HRW gives no explanation for its deviation from the standards set by the Prosecutor.
Even more curiously, HRW does not call for prosecution by the ICTY of its acknowledged violations of international humanitarian law, but rather only for "an impartial and independent investigation" of them by NATO governments! This is in striking contrast to HRW's demand in December 1999 that the UN Security Council establish an international commission of inquiry into Russian actions in Chechnya with the aim of facilitating prosecution of those who have committed human rights violations.
A more fundamental problem, however, is HRW's assertion that war can be seen as humanitarian. HRW introduced its World Report 2000 by trumpeting the trumping of state sovereignty by human rights. The report reveals that courts are now willing to indict political leaders, while organizations such as NATO are willing to intervene militarily against regimes that commit crimes against humanity by citing specifically the ICTY and the NATO military actions against Yugoslavia. It concludes that all of this "foretells an era in which the defense of human rights can move from a paradigm of pressure based on international human rights law to one of law enforcement."
This assertion is either naive or cynical. Attacks against civilians are inevitable in any supposedly humanitarian intervention. Every nation has the right to defend itself, and at the level of practical politics, a nation that is attacked will try to resist the attacker. Winning the war thus requires defeating not only the army but the nation -- i.e., the civilian population. Therefore, the decision to attack a sovereign state is, logically, a decision to attack the civilian population of that state, not just the military. In this sense, the constant repetition during the Kosovo war that "NATO never targets civilians" was hypocritical, presumably meant to obscure the uncomfortable fact that humanitarian intervention requires the committing of humanitarian war crimes. What the New York Times has approvingly described as the "elevation" of human rights to a "military priority" (see its editorial of 13 June 1999) is thus actually a striking inversion of the principles that have guided the growth of human rights organizations.
For example, Amnesty International long required that its "prisoners of conscience" not be advocates or practitioners of violence. "Humanitarian intervention," however, transforms what had been a moral critique of violence into a moral crusade for violence on a mass scale.
The question remains: Why have human rights advocates ignored the actions by NATO and by the ICTY that they would condemn were they performed by, say, China, Russia, or India?
This question is addressed directly in a brilliant and brave article in the East European Constitutional Review (#97, 1999) by Dimitrina Petrovna, executive director of the European Roma Rights Center in Budapest. Petrovna acknowledges that she herself was in favor of NATO intervention in Kosovo until she realized, soon after the bombing began, that it was escalating the human rights catastrophe for everyone in the Federal Republic of Yugoslavia, inside Kosovo and in Serbia. She correctly observed that "from a campaign to defend the lives and rights of Kosovo Albanians, [the war] metamorphosed into something else: the monster of an escalated war."
While Petrovna herself then called for an immediate end to the bombing and a negotiated peace, few others in the human rights community have done the same. She notes that for East European human rights workers, their very status and funding could have been jeopardized by criticism of NATO and especially of the United States. NATO countries are, after all, the major financiers of most humanitarian entities in Eastern Europe. In Western countries in particular, however, the reasons are more troubling. There, she notes, "human rights are becoming indistinguishable from official political ideology," producing "a gradual usurpation of the human-rights culture by the dominant powers, and the very argument for human rights is turning into an apologia for the global status quo, all in the interests of these very powers."
From the evidence of NATO's actions in Kosovo and the ICTY's treatment of defendants, this new concept of human rights, no longer premised on the protection of people from the violence of states, seeks to justify the application of massive violence by the world's most powerful states against weaker ones. With this transformation, human rights betrays its own premises and thus becomes its own travesty: humanrights-ism.
The Woodrow Wilson International Center for Scholars