Marco Sassoli

In the Hague and in Arusha, Tanzania, ad hoc international war crimes tribunals are investigating atrocities committed in the former Yugoslavia and in Rwanda. What do these trials mean for the Red Cross and Red Crescent Movement?
Marco Sassoli of the ICRC explains.

What is the purpose of international war crimes tribunals?

The prosecution of war criminals by an international court underlines the fact that certain things are prohibited — even in war. Without retribution, no law can be effective; prospective war criminals may think twice before committing an act if they fear that they may one day be prosecuted. Also, establishing individual guilt may help to diminish the notion of collective responsibility which fosters long-lasting enmities between groups.

Why are there only tribunals for the former Yugoslavia and Rwanda?

The concept of an international court for prosecuting war criminals dates back to the Nuremberg and Tokyo trials after the Second World War. Similar trials did not take place during the Cold War essentially because there was not agreement among the superpowers. With the end of the Cold War, the possibility of tribunals became real and, in the case of former Yugoslavia, was prompted by the atrocious and highly publicised crimes. This is not to say that equally horrific acts were not also committed in other places — Angola, Liberia, Colombia, Cambodia, Sri Lanka, to name a few — but in the case of the former Yugoslavia, the pressure of public opinion fuelled by media reports of atrocities led to calls for an ad hoc tribunal. Following the genocide in Rwanda in 1994, States felt morally obliged to set up another tribunal.

How effective can the ad hoc tribunals be?

Obviously, the tribunals can only touch the tip of the iceberg. In the former Yugoslavia, the tribunal was only able to begin indicting war criminals four years after the start of hostilities. In Rwanda more than 500,000 people were killed. At best, the tribunal will be able to try about 200 or 300 of the main perpetrators.

Still, the tribunals have had a very beneficial effect on the credibility of international humanitarian law — particularly in the eyes of the public. For the first time in 50 years, people have been charged with violations by international bodies and there are even warrants out for the arrest of some leaders. That’s important.

Can the ICRC testify at these trials?

No, except by providing information that has already been made public. ICRC delegates do have information that would be useful to convict war criminals but, when an ICRC delegate witnesses a violation of international humanitarian law, his or her first concern is not to identify the person responsible; it is to help the victims and notify the authorities in an effort to improve the situation.

The ICRC has to be present in the field to help those who suffer. It has to have access to those people and be able to negotiate with the authorities on their behalf. No belligerent is going to give the ICRC access and meet its representatives at the negotiating table, if they fear that one day ICRC delegates might be witnesses for the prosecution, providing information collected on the basis of confidentiality.

Are the Federation and National Societies equally unable to testify?

If members of National Societies or Federation delegates gave evidence at these trials, their testimony could easily endanger their and our activities as well. Their participation in trials of this kind may well arouse suspicion and hostility towards the Movement as a whole.

Does the ICRC support the idea of a permanent war crimes tribunal?

The ICRC is fully in favour. If international humanitarian law were correctly applied, war crimes would be systematically repressed by national tribunals. Unfortunately, many States do not have the necessary legislation, so a permanent international body is required.

Cynics will say that the ad hoc tribunals were only possible because the Permanent Members of the UN Security Council were sure that their own nationals would never come before them. But there is a debate going on within the UN General Assembly with a view to setting up a permanent tribunal that is not dependent on the decisions of the Security Council and the outcome of the debate will prove whether or not the ad hoc tribunals were just a flash in the pan. We certainly hope not.