Landmarks for int'l rule of law?

By Myint Zan

SUVA, Fiji (JP): Slobodan Milosevic has again made history: in the annals of international law he is the first former head of state ever to be brought before an international tribunal to try him for crimes against humanity and other crimes against international law.

Yet the Hague Tribunal where Milosevic is scheduled to be tried is not a "universal" or permanent international tribunal but an ad hoc one limited to a particular geographical area (crimes against humanity and other serious violations of international humanitarian laws that were committed in the former Yugoslavia) and time frame (since Jan.1 1991)

After decades of "mooting" and about five years of intense negotiations among the world's countries, an international treaty to establish a Permanent International Criminal Court (PICC) was "opened for signature" in Rome, Italy on July 17 1998.

According to the provisions of the treaty, it would come into force a few months after a ratification by a 60th country was deposited with the United Nations Secretary General.

The permanent court could then be established, according to the treaty.

As of June 30 2001 -- less than three years after the treaty was adopted (agreed upon) by an overwhelming majority of the participating countries in Rome -- 36 countries have ratified it. The international community seems to be forging ahead in establishing a permanent court so that future prosecutions of the likes of Milosevic could possibly take place in a less ad hoc, regional or restricted international tribunal.

In a brief statement before the three-judge panel of the International Criminal Tribunal for the Former Yugoslavia (ICTFY), Milosevic claimed that since the tribunal was not established by the UN General Assembly it was "illegal".

If and when the PICC is established it would be the General Assembly which organized the Rome conference.

Only a day before Milosevic's transfer to the Hague Tribunal, on June 27 2001, a much less exposed case was decided by the International Court of Justice (ICJ), also in the Hague.

This was the case known as the "LaGrand" case, after the name of two brothers who were German nationals arrested for murder in the United States, where they resided.

The government of Germany had lodged a lawsuit against the U.S. at the ICJ -- which was set up by the UN in 1946 to solve disputes among countries.

Germany argued that the U.S. breached international obligations, saying the LaGrand brothers were not informed of their rights to consult the officials from the German consulate by the arresting office when they were arrested for a murder they committed in the course of an armed robbery in January 1982.

The source of the international obligation which the U.S. owed to Germany was based on a provision of the 1963 Vienna Convention on Consular Relations, which requires host countries to inform foreign nationals arrested for criminal offenses that they have the right to see and consult consular officials of the countries of which they are nationals.

Both brothers were sentenced to death. After the execution of one of the defendants, Karl LaGrand, Germany lodged an emergency application for "provisional measures" in the ICJ.

Several hours before the scheduled execution of Walter LaGrand, the other brother, the ICJ issued an "order" to the U.S. government. This "provisional measure" taken by the ICJ asked the U.S. government to do all it could to postpone the imminent execution of Walter LaGrand pending the determination of the issue by the ICJ, regarding the alleged breach of the above international obligation.

The U.S. State Department forwarded ICJ's "Order" to the Governor of Arizona, who refused to postpone the execution.

More than two years after the execution of the brothers in February and March 1999 respectively, the ICJ, by a 14 to 1 majority (among its 15 judges) held that the U.S. was in breach of its obligations by not informing the LaGrands of their rights.

By a majority of 13 to 2, the ICJ also stated that the U.S. breached obligations to Germany under the Vienna Convention when the execution of Walter La Grand went ahead in spite of the ICJ's provisional order to postpone it. Meanwhile the substantive issue as to the application of the Vienna Convention is being considered by the court.

Most significantly the ICJ also held that the right pertaining access to consular officials applies not only to states but to individuals. Hence the ICJ in effect held that individuals are also "subjects" of rights conferred by international law even if the conventions do not explicitly state so.

The LaGrand decision is thus significant; it could be viewed that rights under international law can be claimed and asserted by individuals in the same way as individuals can be held accountable under international law for alleged crimes against and violations of international law as in the Milosevic case.

When it suits its policies, U.S. administrations are fond of talking about the rule of international law and the "new international order" -- the term in vogue under former president Bush Senior.

Let's face it: It was the U.S. money or the threat to withhold it to the Yugoslav government that "clinched" Milosevic's place in the annals of international law.

The U.S. should perhaps be more consistent in implementing the international rule of law. Together with Israel, China and a few other states, the U.S. voted against the set up of a Permanent International Criminal Court at the conference in July 1998.

In the dying days of the previous Clinton administration, the U.S. (and Israel) did eventually sign the treaty on Dec. 31, 2000 -- the last day it could have done so under the terms of the treaty -- though it is very unlikely that either country will ratify the PICC treaty.

At times, Washington not only wants to place obstacles in the progressive development of international law such as the establishment of the PICC; it also wants to turn its back from international treaties that it had in varying degrees committed itself to.

The current Bush administration's retreat from, indeed stringent denunciation of, the Kyoto Protocol on greenhouse gas emissions, its even more categorical determination to scrap the Anti-Ballistic Missiles Treaty in its inane pursuit of the "son of Star Wars" Space-Based Missile System, and the Bush administration's efforts to "kill" the Comprehensive (Nuclear) Test Ban Treaty, which the previous Clinton administration has signed in 1996, are only three recent examples which highlight the U.S.' cavalier attitude regarding a basic principle of international law: treaties and agreements are to be implemented in good faith.

Notwithstanding the international community's apparent "victory" in securing Milosevic into the hands of the ICTFY, there are clearly glitches or obstacles in other important areas of international law and cooperation.

And at times the U.S. policies have constituted a major obstacle for achieving international legal cooperation and consensus. It might, therefore, seem a bit optimistic and melodramatic to hail recent developments from the LaGrand and Milosevic cases as major landmarks in international law.

Still, only a cynic would deny that they are totally shorn of any significance in the checkered history of that fragile but nonetheless real body of rules, norms and practices that constitute contemporary international law.

The writer is a lecturer at the School of Economic and Social Development in the University of the South Pacific in Suva, Fiji.