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Where Do We Go
From Here?
New and Emerging
Issues in the
Prosecution of
War Crimes and
Acts of Terrorism
A Panel Discussion
THEODOR MERON,
RICHARD J. GOLDSTONE,
ARYEH NEIER,
KENNETH ANDERSON,
PATRICIA
M.
WALD,
MICHAEL W ALZER
THEODOR MERON: Let me start with Justice Goldstone. WTiat
were the problem s you encoun tered in the infancy of Th e Hague
tribun al, a nd which you believe have bee n largely solved?
RICHARD GOLDSTONE: I think the main problem that has
been solved relates to the very credibility an d justification for set-
ting up the Yugoslavia tribunal. When I arrived on August 15,
1994,
the tribunal had been written off, throughout the democ-
ratic world and the undemocratic world, especially by the
media—and understandably so. Human rights activists had
thrown up their hands in frustration at the political disregard for
the victims for whom the tribunal had b een set up . I am referring
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] 78 SOC IAL RESEARCH
lar, there was the 15-month delay in appointing a prosecutor—
that was a huge problem the tribunal faced. T he judges them-
selves had been appointed the previous September. So they had
been the re for some eigh t months, feeling ridiculous, as they can-
didly told me. Having fashioned the rules of procedure and evi-
dence, they were waiting for trials to begin. But there were not
any investigations, even in the assembly line. So there was anger
and frustration.
That is now a thing of the past. No institution is perfect, and
there certainly have been other serious problems with regard to
the ru nn ing of both tribunals. However, they are now up and run-
ning and respected and doing important work. The change is a
ver)
significant one.
MERON: May I continue? We are friends, and therefore I can ask
these questions. What do you think was the major mistake you
made as a prosecutor?
GOLDSTONE: Absolutely none. That s an easy one.
MERON: Is there anyth ing you would have do ne a different way?
GOLDSTONE: I don t think so. I was fortuna te in having won-
derful advisers and colleagues. From day one I mad e it a po int of
consulting widely, particularly with the NGO community, and
Aryeh Neier in particular was a valued mentor and adviser. They
were not single-person decisions. But they were decisions taken
carefully, because they were difficult decisions. I really can t th ink
of anything significant th at could have been do ne differently.
MERON: Would you now, with hindsight, indict people like
Dusan Tadic, or wait for more prominent criminals?
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P A N E L D I S C U S S I O N 1 1 7 9
inappropria teness and unhappiness of indict ing low-level people .
T h er e w ere two reason s for it , an d they were b ot h, in my view,
unavoidable . O ne is unfo r tuna te and o ne is not . Th e unfo r tuna te
on e was that wh en I arrived in Th e H ag ue , I was inform ed that I
would have to appear in November , three months af ter I ar r ived,
before the bu dg et comm it tee of the U ni ted N at ions : the Ad\ isor)
Committee on Administra t ive and Budgetary Quest ions. Knowl-
edgeable UN insiders advised me that the future f inancing of the
tribunal would depend entirely on whether we w^ere given an ade-
qu ate b ud ge t. An d I was advised tha t if we d id n t have an indict-
ment out by November 1994, that would not happen—^we would
be without adequate funding. And that was a ser ious concern.
Obviously I would no t have coun tena nce d s igning an indic tm ent
if th er e was n o t ad eq ua te available evi den ce to justify it. Bu t th e
only per son against wh om , by the be gin nin g of Novem ber , we had
evide nce th at justif ied a n in dic tm en t was a m an called Nicolic. In
the constellation of war criminals in Bosnia, Nicolic was a small
fish, as the newspapers liked to call him. But, in order for the tri-
bunal to survive, we decided that i t was necessary to issue that
ind ic tment .
I have a lways conceded that Nicolic was a most inappropria te
first indictee of the f irst international criminal court. I t would
have been lovely to start off with an indictment against Bosnian
Serb leader Karadzic or Bosnian Serb General Mladic , or some-
body at th at level. But at that p oi nt of t ime th er e ju st was no t ev en
the beginnings of a case then against them.
We then co ntin ue d with a n um be r of oth er small f ish. Tha t was
a very del iberate policy. I f you examine the Nuremberg record,
you v\ill be surprised—as I was the first time I read it—how little
witness evidence there was. The bulk of the evidence vv-as docu-
m enta r ) . Th e N urem ber g prosecutors were b lessed with smoking
guns galore . They had to weed out which guns to use . The docu-
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1180 SOCIAL RESEARC H
We had no such gift. At the Yugoslavia tribunal there was no
documentarv- proof there were no smoking guns. .\nd we had to
build up circumstantial cases. The witnesses we could get to—and
there were hundreds of thousands of them, over 300,000 Muslim
refugees in Germany alone—could only give us evidence against
the people who victimized them: camp guards, camp comman-
ders.
They didn 't know who gave the orders for their victimization.
MERON: They did not know the senior people.
GOLDSTONE: But we had to establish, thro ugh a series of lower
level investigations and indictments, that there was a plan. We
could show that over a short period many villages in a swath of
Bosnia were being ethnically cleansed. It w s clear that the inten-
tion was to jo in the Serb Republic with Serbia proper. And we
could establish—and this is the case that I ho pe Karadzic v\ill have
to answer—that orders must have been given for this ethnic
cleansing to have been carried out by these lower level officials in
many villages. We were assisted by the sort of boastful statem ents
that people like Karadzic made, acknowledging that constitution-
ally he was not only the head of state but also the commander in
chief of the armed forces of the Serb Republic. And he used to
say, Nothing happens in my army v\ithout my knowing it, and
vvithout my ord ering it. But that's the sort of case that had to be
built up. Without the lower level investigations and indictments,
we would not have had the indictment against Karadic.
MERON: Than k you verv' m uch . Ken Anderson, you have been a
frequent critic of the tribunals. Could you, in a nutshell, tell us
what was your m ain complaint abou t the tribunals?
KENNETH ANDERSON: It's actually a difficult one to articulate
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PANEL DISCUSSION 118 1
MERON: So it s a good question.
ANDERSON:
Yes,
precisely. And I should say that I thought that,
by becoming a law professor, Ted, the point was that /would ask
the questions. So the tables have been turned once again.
MERON: I also am a professor.
ANDERSON: Yes, so they havel I have to take issue with Justice
Goldstone s suggestion tha t the Yugoslavia courts have achieved
the legitimacy and relevance that h e thinks they have. I don t
think that s so, but I hesitate to take the discussion in these kinds
of directions because ultimately I m no t sure that is what w want
to discuss here today, which is really humanitarian law. Still, I
think I should be clear about my position, which is that, notwith-
standing the heroic and noble work of the people working on
them, there is enormous myopia about what constitutes legiti-
macy. I say this while remaining complete agreement with every-
thing that Justice Goldstone has jus t said ab out the narrow
descrip tion of how cases are bu ilt, an d the kind of legitimacy th at
had to be developed with the NGO community, with the media,
with intern ation al organizations—for the work that Ju dg e Wald
has carried o ut in actually tr)ing to fashion jurispru dence on the
court, or that Professor Meron is doing currently.
Nonetheless, the legitimac) tha t exists
is,
frankly, built on foun-
dations of sand. It represents a desperate em brace betvs een cer-
tain international elites who constitute the shifting group of
international organizations, their
staff
and personnel with peo-
ple in the internatio nal NGO world. It s a kind of love affair
between two relatively narrow constituencies that frankly do not
relate all to the larger world. I do n t think that genuinely broa der
legitimacy can be had except on the basis of democratic institu-
tions to which the Yugoslavia court has might have connections,
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1 1 8 2 S O C I A L R E S E A R C H
not inst i tut ions that can be created in advance of having democ-
ratic legitimacy in some form. Moreover, the kind of democratic
legitimacy that is accorded from states to international bodies is
no t the kind of legitimacy th at can give you th e kin d of cotir t pro-
ceedings taking place now.
Yet som eb od y will reply, But surely all th e legitimacy you n ee d
is that we agree that crimes against humanit) ' , genocide and so on,
are things that no bo dy can object to. Certainly, that 's qu ite r ight.
But wh en o ne m oves to an
ctu l
cou rt, wh at really ma tters is pro-
cedure . Procedure concerning issues such as what counts as e \ ' i -
dence, what motions can be brought , how do you actual ly go
about this thing?
On those concerns there are no set t led agreements . And I
don' t think that there need to be. There are dif ferent s tandards
in different democratic societies, and in different societies gener-
ally. So, the nutshell of my objection, realHs is that I think that
these courts lack any kind of foundation for the exercise of the
political power they wield; they lack legitimacy grounded in any
kind of genuinely democrat ic inst i tut ions, and you cannot get
that legitimacy merely by talking about the pooling of sovereign
states and the ir de m ocra tic legitimacy. I t ju st d oe sn ' t carry over to
these kinds of institutions and individuals. That said, I 'm not sure
we need to go further in that way. I think it 's worth la)ing that
posi t ion out , but I think that there are so many other quest ions
that have also been raised about what should be the substantive
rules of hu m ani tar ian law in re la t ion to terror ism , m ore narrowly
confined, that I don' t want to derail the discussion.
MERON: We wiU reach that too, I can assure you. But I think that,
given your articles cridcizkig the tribunal, it was good to touch on
these issues, an d I 'm w ond ering wh ether Ju dg e Wald an d Aryeh Neier
wou ld like to com m en t, especially on this ques tion of legitimacy.
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1184 SOCIAL RESEARCH
the legitimacy of the \\igosla\ia tribunal. There have also been
com plaints about the Rwanda tribunal, from within Rwanda.
h
er
time,
however, even there , greater acceptance of the legitimacy of
the Rwanda tribunal has occurred. Internationally, there is a high
degree of acceptance of both the Rwanda tribunal and the
Yugosla\ ia tribunal. T hat says to m e that their performance has
built a level of legitimacy that goes well beyond the particular nar-
row elites that you are talking about.
MERON: Thank you ver) much. Ken, briefly, your defense?
ANDERSON: Let me start with Aryeh s point.
Yes,
in some sense
it s true, the courts build their legitimacy by how they perform .
But I think that if one looks at the United States Supreme Court,
it s simply impossible to divorce its perfo rmance from its embed-
dedness within a certain kind of democratic, constitutional order.
Its performance within that structure is what gives it legitimac)
within a democratic polit) . I just don t think o ne can divorce the
performance of courts and talk about them having some sort of
free-floating legitimacy in a way that s removed from the political
system of which they are part, o r the political community of which
they are part.
I
jus t do n t un ders tand the natu re of the political
com munit) in which interna tional tribunals are supposedly oper-
ating. It certainly doesn t look like a dem ocratic polit) in any
meaningful sense to me.
Going to Judg e W ald s question. It s a ver) fair question: W hat
else do you do? Judicial accountabilit) is no t fundamentally the
issue; dem ocratic accountabilit) is. I m no t particularly b oth ere d
by it, in the case of the Yugoslavia tribunals. I m much more both-
ered by it in the case of the ICC. This is because the Yugoslavia tri-
bunals are much more narrow in what it is they re dealing with.
This ad hoc nature, I think, raises fewer questions about it. But
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PANEL DISCUSSION 118 5
ning. (And certainly a very different behavior from Germany
from the beginning.) But again, that carries us off in a different
direction. It is a mistake, however, to assume that legitimacy is
achieved on the basis of what is agreed between CNN, the people
who hang out at the UN, and with people who write the checks
for it from the O pe n Societv' Institute. I think that we have got to
reach more broadly to achieve democratic legitimacy. Aryeh is
righ t in saving tha t these tribunals have achieved vastly mo re legit-
imacy than I would have expected, but there is still a much wider
world out there than the world that we contemplate here. At the
bottom , I do n't really unders tand the natu re of the international
comm unity in which these things are em bedded . Certainly I
do n't think it can really support a conc ept of judicial account-
ability because it does not have, and cannot have, democratic
legitimacy.
MERON:
e
will
stay
v\ith the Intemational Criminal Tribunal for
the Eormer Yugoslavia (ICTY) for another two or three minutes
and then move on to other questions. I would like to hear, in a
moment, from Judge W^ald in particular, and maybe from Aryeh
Neier, their thinking about the so-called exit strategy of the tri-
bunal.
Before moving on to that, if I may—as a moderator I'm sup-
posed to be neu tral, and I v\ill try to be—let me make a com m ent
or two about this discussion we've been having about legitimacy
of the ICTY. In the case of the ICC, one of the three prongs or
triggers for the jurisd iction of the ICC has been the referral,
under Chapter
Vll
from the Security' Council. So the interna-
tional communit)', the entire intemational communitvs felt that
there is some legitimacy in that means, and we all know that in
fact effectiveness of the ICC might require tha t this might be one
of the first cases—^who knows? Referred to the ICC might be a
case tha t would have to be re ferred by the Securit)' Council.
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1 1 8 6 S O C I A L R E S E A R C H
court, of ever)- institution, rests on its own record. It seems to me
that in the no rma tive sense, the dev elop m ent in a ver) serious way
of intern ation al h um an itaria n law by the ICTY has been quite
remarkable. And it would be extremely difficult for an institution
such as the ICC to have been ever contemplated without being
able to fall back on those principles of international criminal
jur isp ru de nc e de velope d by the ICTY, an d draw on the m . But
what is part icularly surprising, and ver) encouraging, is that the
I C T \
developed an extremely sophist icated and fair procedural
structure. And when I arrived at The Hague, I found that nearly
one-half of my time initially was spent on procedural questions.
Perh aps this shows that these tribunals are co m ing of age, and I m
sure tha t if Ju d g e W ald wo uld talk to us, an d this is no t ou r sub-
je ct toda) , abou t he r ex pe rien ce in ou r federal judiciar) , sh e
would tel l us how much of her t ime she had to spend on proce-
dural quest ions .
And in that respect I would like you to realize that there is a
ver) im po rta nt cross-fertilization bet^\ een th e various trib una ls.
Eor example, last week we revised at The Hague rules on inter-
locutor) appeals , an d we had to inco rpora te some s tandards . And
we felt that ou r own standard s in ou r rules of pro ce du res were no t
as good as the standards included in the ICC statute. So, while
revising rules for our own needs, we in fact took the ICC stan-
dards for in ter locutor) appeals , and incorporated them in our
own rules.
Now, Ju dg e W ald: W hat d o you th ink ab ou t this so-called exit
strateg) ?
WALD: First let me tell you what I understand the exit strateg) to
be .
It may be a moving target, it may have changed, since I left
Th e H agu e. But my und ers ta nd ing, w hile I was ther e, is that the
tribunal would make every effort to complete its trials by the end
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PANEL DISCUSSION 118 7
But I think it was necessary for several reasons. O ne is on a ver)'
practical level. Erom meetings that I attended, which were also
attend ed by high UN officials, I think that it w s prett)' clear th at,
because the ICT\' is virtually completely financed by the UN—
there are voluntar)' contributions for particular aspects—there
had to be an exit strateg)'. There was not an unlimited purse out
there so that it could go on too much longer. It had to have a
plan . But I think, apart from the realpolitik of the fact, that it had
to be able to say to the UN, when it asked for the core of 27
d
ZzVew judges to h elp it speed up the trials, it had to say, "W'e do
have a plan now for finishing up these trials and getting out."
The tribunal v\ill, by the time it finishes, if it can a dh ere to this
plan , have been in existence for two decades , from 1993 to say
2013 or 2014. And, as I no ted in my paper, I do think that's prob-
ably getting to the edge of permissible time. I know there is no t a
statute of limitation on crimes against war or crimes against
humanit)', but I do think these are practical problems of con-
ducting trials and getting those witnesses that Judge Goldstone
referred to as time passes. These trials have been witness-pre-
dominant. W^en you get to two decades later it becomes harder
and harder to put together a case of credibility that will meet the
high evidentiary standards that the tribunal has set for itself
WTiat I do want to point out, however, is that part of the exit
strategy, and this indeed may be the hardest part, but it is part of
it as I understand it, is where do those cases that are valid cases,
bu t that the tribunal jus t can 't accomm odate in its exit plan,
where do they go? My understanding, which may not be a com-
plete one, is that many of those vsill be—the phrase that's used is
"dovvTiloaded"—onto the Bosnian courts, and some of the courts
in the Serb Republic, courts in Croatia, hopefully maybe in the
future courts in Serbia as well. But that's not an easy thing to do;
the Bosnians themselves are only now getting their own entrance
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1188 SOC IAL RESEAR CH
also technical assistance, some supervision under our Rule 11.
that allows the tribunal to do that—
MERON: 11 bis
WALD: Thank you—which allows the tribunal to cooperate with
national courts on trials removed from the tribunal. For these
countries to be able to take any significant num ber of war crimes,
this will be necessary because these war crimes, based on the care-
ful nature in which they have been prosecuted and tried, take
years of field investigation, of body exhum ation s, all kinds of ver)'
complicated preliminar)' work tha t a lot of these coun tr)'judicial
systems are just not used to doing. And they're going to need con-
siderable help in being able to do it properly. They're going to
need witness protection protocols. They have already started
amending their statutes so that they can do it under proper legal
authority. But that's where, in effect, if you want to bring closure
to this episode , this terrible ep isode of the Bosnian
wars,
you need
a com bination of what the tribunal will have accomplished by the
time it goes out of existence and some rational plan for picking
up the most important ones left.
We'll never be able to tr)' all the war crimes. The estimate is—
and it's jus t a figure peo ple pull ou t of the air—50,000 war crimes
created in the course of the Bosnian-Croatian wars. But even v\ith
the crimes we consider the most significant, the national courts
are going to need a lot of assistance in that downloading process.
Croatia has already made some promising starts in trying some
war criminals on its own, bu t it's that kind of a combination strat-
eg)' that we'll need. In the end, I do think we need an exit strat-
eg). You can't really have a tem porary ad hoc court—^well, I
guess you could, but I don't think it's what we're all looking
toward: one that just goes on an d on an d on.
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PANEL DISCUSSION 1189
in the former Yugoslavia. There is ver) litde doubt that when the
day comes there will be still a number of cases with which the tri-
bunal at The H ague has not been able to deal, and from the per-
spective of intem ation al hum anitarian law, certainly hum an rights,
the re will be a lot of talk about referring those cases to othe r
juris-
dictions. And more particularly, courts in the form er Yugoslavia, or
perhaps hybrid courts, mixed courts, this would present an
extremely complex issue, because I do believe that the intema-
tional community would not be satisfied with the referral of cases
to jurisdictions that m ight not as yet meet intem ational standards.
I would like to turn now to Aryeh Neier, and Aryeh, we have all
read your wonderful article in the
ew York Review of ooks
about
the militar) tribunals. We are now, needless to say, moving from
the ICTY and Rwanda to m ore contemporar) , o r othe r issues.
Your article has been extremely critical of the ea rlier mode l of the
regulations that have been issued, and I have no d oubt that it was
very infiuential in pro ducing various revisions of those orders and
guidelines an d regulations issued by the D epartme nt of Defense.
My question to you is: To what extent do the revised guidelines
m eet your concerns— and to what extent do they not?
N I R Judge Goldstone suggested he made no mistakes at The
Hague. I think I did m ake some mistakes in my New York Review of
ooks article about the military tribunals. I should have realized
when I
w s
writing the article that the procedural issues on which
I focused were only part of the story. Significant steps have been
taken since then to provide some procedu ral p rotections. Th e big
questions that I didn t touch up on were what kind of charges are
going to be filed and under which laws are the people held at
Gu antanam o Bay going to be tried. Are they going to be tried for
violations of the Am erican p enal code? Are they going to be tried
for violations of intemational humanitarian law? It seems appar-
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1 1 9 0 S O C I A L R E S E A R C H
T he b est guess I have ab ou t the ch arges is base d on occasion-
ally seeing something written by Ruth Wedgwood, as she has
emerged as a defender of whatever it is the Bush administration
intends. She seems to suggest that they will be charged with con-
spirac)' by rea so n of be in g affiliated in so m e way with Qaeda. If
that is the case, I thin k th ere is go ing to have to be som e pe na l law
that can be cited establishing that
^ l
Qaeda is a criminal conspir-
acy. Then one wonders, are they going to be the standards for
m em be rsh ip in a cr iminal conspiracy such as those that were con-
sidered in the United States at the time we were trving people
u n d er th e Smith Act? Are those s tandard s goin g to be em bo die d
in the ju r isp rud en ce of the t r ibunals? You rem em be r that w hen
the 11 top Communists were tr ied, i t was enough to say that they
w^ere know ing m em be rs of the C om m unis t
Partv ,
which advocated
the forcible o verth row of th e Un ite d States. T ha t was sufficient for
a conviction. Later on, however, the Sup rem e C ourt of the U nited
States, in various decisions, essentially dismantled the Smith Act.
The Court held that a great deal more had to be shown than just
knowing m em be rsh ip in this kind of cr iminal conspiracy.
Are the Su pre m e Co urt ' s s tandard s going to be met? I think the
whole question of the military' tr ibunal has gotten to be a muddle.
I may have been mistaken in focusing on procedural quest ions,
such as w heth er th ere are go ing to be appeals to a judicia l body;
whether there is going to be a r ight for the defendants to have
counsel of their
OV\TI
choice. Some of those issues have now been
addressed, but the larger quest ion of what charges are to be
made, and under which body of law they v\il l be tr ied, seems to
me to remain complete ly unresolved.
MERON: Thank you very much. In a moment I wil l turn to Pro-
fessor Walzer, but one more question to Mr. Neier. Aryeh, you
have always been a strong advocate of the concept of universalit) '
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PANEL DISCUSSION 1191
at Th e Hague— not in my court, but in the Interna tional Court of
Jxistice—in the case of Congo against Belgium, where the Inter-
national C ourt ofJustice struck a Belgian arrest warrant issued for
crimes against humanity (it had been issued against the person
who at the time was the foreign minister of Congo).
s
you know,
Belgian law is unprecedented in the breadth of the concept of
universality of jurisd iction , which it accepts without any nee d for
a link to Belgium. Do you think that the Belgian law and the Bel-
gian m agistrates have pushed the envelope of universality of juris-
diction a little bit too far, making this kind of decision perhaps
somewhat predictable? How would this operate if the Belgian
magistrate would issue such a warrant, as he did, against Israeli
Prime Minister Ariel Sharon?
NEIER: I do think the Belgian law does go too far. I think it is one
thing to exercise universal jurisd iction when th e defend ant is
within the territory of the country. A case that I think was wholly
appropriate took place in Britain a couple of years ago. A man
from Belarus, who was an im migrant to B ritain, was charged with
crimes against humanity for his complicity in Nazi war crimes dur-
ing World War II. He lived in B ritain for a long period. T hat was
an appro pria te exercise of universal jurisd iction . But for jud ges in
one country to reach out to defendants who are not within the
territory of that country seems to me inevitably to politicize the
question of universal jurisd iction . Why single ou t this defendant
and not that defendant? I think that tends to un derm ine the legit-
imacy of courts. There has to be a narrower approach to the idea
of universal jurisd iction than we have in Belgium.
O ne thing I think worth thinking abou t is whether some effort
shou ld be m ade to relate universal jurisd iction to the establish-
ment of the International Criminal Court—that is, should it be
necessary for a country to ask a panel of jud ges of the Intern a-
tional Criminal Court for permission to proceed in a particular
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1 1 92 S O C I A L R E S E A R C H
solely to a crusading prosecutor, deciding that he or she is going
to reach out to someplace halfvvay around the world and sav,
This par t icular person is somebody who ought to be t r ied in my
cou rt. T h at is go ing too far.
ME RON : I have Ken who asked, and th en Ju dg e W ald.
AN DER SON : I ju st wan ted to go back to the q ues tion of the tr i-
bun als , because I have com e ou t as a s trong su pp orte r of the mil-
itarv' tr ibun als, altho ug h ag ree ing in almo st ever)' instan ce w ith
Ar) 'eh's crit icisms of the original formulation of them. The prob-
lem, fundamental l) ' , with what ' s going on in Guantanamo is that
the administration is now discovering that i t has mostly got the
wrong group of folks there, from any standpoint of a tr ial . The
administration has a group of f ighters who appear to be low-level
folks who pro bab ly can ' t tell th em a lot. But at the same tim e, they
don' t want to send them back into a situation in which they could
again become fighters. I generally agree with Ruth Wedgwood's
positions on these issues, but I disagree with the proposed
method of going with some kind of status crime in the form of a
conspi racy theory . In te rna t iona l humani ta r ian law provides
ample scope for the United States government to deta in these
fighters w ithout ch arges , at least as lon g as there 's so m e kind
of
active hostil i t ies going on against Al Qaeda. Sure, there can be a
major argument about how long one can detain, and when act ive
hostilities are over, and when it 's no longer really a confiict and
you'd have to le t them go. But I don' t think that the choices are
simply a m atte r of We have to com e up with som e novel theorv'
that involves essentially creating a status crime, such as 'being a
m em be r of Al Q aed a as such' , or else le t the m go
now
I think
Professor Wedgw ood is w ron g to push us in that d irectio n.
MER ON: Ju dg e Wald?
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PANEL DISCUSSION 1193
jurisprudence, and the problems that we ve alluded to here abovit
Cuantanamo Ba) . Apart from our o\Nn conspiracy law, which has
been played out in the Smith Act, I m sure ever) body knows that,
starting with Nuremberg, and then going through the two tri-
bunals,
but especially our tribunal, the so-called criminal enter-
prise doctrine is a much used doctrine. In fact, Milosevic is being
prosecuted pursuant to it, and so are several other of the higher
leaders, but it hasn t been used by the prosecutor exclusively with
the high leaders. It s been used, for instance, for people involved
in the administration of a prison camp, as it was in Nuremberg—
that is, some of the lower level people. So that you were actually
having a development of the doctrine. And this, I understand
from reading newspaper reports—not Ruth Wedgwood, but just
plain newspaper reports—is being looked at by the government
for whatever guidance it can give them for their OWTI ends. So we
may well see some use by our own country of the international
humanitarian law that is being issued in other contexts by the tri-
bunal in deciding what to do with the people in Guantanamo.
MERON: Thank you. Judge Wald. Professor Walzer, let us think
about the unthinkable: nuclear weapons. Based on the Cold War
model, we think of nuclear weapons as intended for deterrents
of a catastrophic attack on the United States or other countries.
And in your books you have wTitten about the immorality of
holding innocent civilians hostage in the context of deterrents.
Now, imagine for a moment that we had credible evidence that
Al Qaeda had small nuclear weapons that it would like to use
against New York. Imagine further that the recent attempts to
defeat Al Qaeda had failed. It was not taken for granted that the
operation in Afghanistan would be successful; many people
thought it would be a failure. Imagine, further, that Al Qaeda is
still hiding in those remote hideouts and caves in Afghanistan, in
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1 1 9 4 S O C I A L R E S E A R C H
get ed, small, relatively clean (if that exists) nu cle ar w eap on s.
WThat w ou ld you do ?
MICHAEL WALZER: I was sitting here feeling verv' pleased to be
exempt from all the legal discussions.
ME RON : We ju st w anted you to have a goo d rest .
WALZER: I actually have opinions on all the questions you've
been asking. But they a re uneduca ted opinions , ce r ta in ly
unlawyerly opinions, and not appropria te here . The hypothet ical
you've p ose d: I think I wo uld ju st reject i ts central p oin t. I t 's cer-
tainly possible; in fact, our government has to assume not only
that there are terrorist organizations trying to get hold of nuclear
weapons, but that organizations exist that would use them if they
did get hold of them.
^nd
th ere are possibly states th at wo uld,
under cer ta in c ircumstances, help terror is t organizat ions get hold
of w eap on s of this sort. A nd all of this justifies, it seem s to m e,
wars like the war in Afgha nistan, an d justifies prettv' tou gh -
minded police work against these groups. But if military experts
cam e to me an d to ld m e tha t the only way to preve nt an attack was
to use these weapons ourselves, and to use them first: I think that
I would look for other militarv' experts.
ME RON : I qui te agre e, bu t suppose the o the r mil itary exper ts te ll
you the same thing.
WALZER: My experience of politics, which mostly consists in
watching politicians, is that they get the advice they want, and I
would make sure that I got the advice I wanted in such a case.
There have to be other ways of fighting; there are other wa>'s of
fighting. We have already engaged with Al Qaeda forces in ver>'
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PANEL DISCUSSION 119 5
MERON: Ken, do you have comments on that? Do you agree
with him?
ANDERSON: I agree , in this case. It s a pruden tial reason , which
is that crossing the nuclear line even with devices that are small
and dig dowTi deep, and all the other characterizations that have
come out in the newspapers, nonetheless does cross that line.
That would be a huge error and a major justification for lots of
other people around the world—probably in India and Pakistan
to start with—to develop and use tactical nukes.
But I think tha t there s a broa der question tha t goes beyond the
nuclear war question here, which is really the question of pre-
emptive action against people and states that you think may be
acqu iring such W ^ D poten tials against you and may be v\illing to
supply them to others. My view is that preemptive action against
Iraq is bo th justified and an extremely good idea before its W ^ D
programs go any further. This goes back to some of Professor
Walzer s comments in the first session, bu t I would certainly reit-
erate tha t I think th at action against Iraq at this po int would make
an enormous amount of sense.
MERON: Let us move on to another question: humanitarian
intervention. This can arise in the antiterrorism context, but pri-
marily of course when there is need to stop atrocities, crimes
against humanity, and so on. And let us relate this to the ICC. This
is a question I would like to ask of all the panelists. Suppose the
Security Council of the U nited N ations is abo ut to adopt a Chap-
ter \1I resolution authorizing an intervention to stop atrocities.
The intervention would then come completely within the legal
concepts of the charter. Of course, the Securit) Council cannot
orde r states to con tribu te forces and to do the jo b of the militarv ;
this has always been done by countries agreeing to send forces in
harm s wa) .
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1 1 9 6 S O C I A L R E S E A R C H
its air force. It is the only power that could inter\ 'ene quickly and
put and end to atrocities. Now, imagine further, that our experts
from the Pentagon have persuaded the WTiite House, and the
Wlii te House told the secretary general of the United Nation and
the m em be rs of the Security C oun cil, W'e wo uld ag ree to inter-
vene,
provided tha t the same Ch apter VII resolution would gran t
members of the armed forces of the United States immunitv ' or
exe m ption from ICC jurisdic t ion for any al leged crimes com m it-
ted during the operat ion. If you do not agree, there wil l be no
operat ion, and at least for a short t ime, or maybe even a longer
t ime, hu nd re ds of thotisands of peop le will be ki lled.
WTiat do you do? Let me start wdth Professor Walzer.
WALZER: This question goes to the political issue of multilateral-
ism and unilateral ism. Your hypothetical example reflects an
argument that I have heard often in Europe as a cri t icism of
America 's apparent preference for uni la teral act ion. The argu-
ment goes this way (it 's not presented this way, but this is what it
amounts to): the Europeans say that when a decision is being
m ad e abo ut w heth er a part icular war is jus t and necessary, they
want to be full partners, as they would be in the Security Council
discussions that you describe. But once a decision is made that a
par ticu lar war is in fact ju st a nd necessary, they wa nt the U nite d
States to fight it , or to do 95 percent of the fighting. And then, of
course, they want .American soldiers to be liable to charges of war
crimes from which their soldiers wil l be exempt, not because
they're legally exempt, but because they won't be involved in the
fighting.
Now, I bel ieve that the U nited States should jo in an d sup po rt
the ICC, but that argument doesn' t seem to me ei ther poli t ical ly
or morally tena ble. At the sam e t ime , Am erican unilateral ism isn ' t
tenable ei ther—and not primari ly because of our unilateral deci-
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P A N EL D I S C U S S I O N 1 1 9 7
ing, but i f there 's to be mult i lateral ism at that s tage, there has to
be mu lt ilateral ism later on also, wh en th e fighting be gins. T he re
has to be a real and substantial division of labor in the field. And
that means that European states have to invest the money neces-
sar)'
to ma ke it possible for the m to jo in us in a division of lab or
on the battlefield. I was am azed to he ar th at the G erm an soldiers
who went to Afghanistan, not to fight, but to help after the fight-
ing, f lew to Afghanistan on rented Russian planes. The Germans
have a rapid deployment force, but they do not have the means to
deploy it, because they have n ' t appro priate d the m one y to buy or
bui ld the cargo planes and the t ransp ort p lanes . Isn ' t there some-
thin g to worry ab ou t there— if you believe in mu lt ilateral ism?
MERON: Let us assume that in the case that we discussed there
would be European participation, but it vvotild not be significant
eno tigh to do the jo b . An d th e U nite d States says, We wa nt this
condit ion, or we don' t play the game.
NEIER: The intervention in Kosovo was by NATO. Therefore i t
was a mul t i la teral in tervent ion. In fact , the Pentagon was
extremely unhappy with the restrict ions that i t fel t were imposed,
because th e in tervent ion was imposed by NATO .
You will recall tha t after S ep tem be r 11 , NA TO for th e first t ime
invoked Article 5 of its charter, saying that an attack on one is an
attack on all . NATO presented itself
s
ready to un der tak e the war
in Afghanistan. Given our experience with a mult i lateral war in
Kosovo, the United States essentially rejected that resolution by
NATO. I bel ieve NATO is now in decline because the United
States has indicated that it did not want NATO to play such a role.
Hence, i t is not al together fair to suggest that other countries
aren' t wil l ing to bear a burden when we rejected a mult i lateral
effort in Afghanistan. Moreover, one should consider some other
ci rcumstances . T he U ni ted States has be en enthusiast ic ab ou t the
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1 19 8 S O C I A L R E S E A R C H
provide logistical help to the Mrican forces, in the form of planes
and so forth. I t would only be Mrican forces that would actuallv
engage in the combat in .Africa, however.
ME RON : Just ice Goldstone?
GO LD STON E: I do n t believe that any coun try outside the U nited
States has any political r ight to expect or demand that the United
States become militarily involved anywhere outside the United
States, if it does n o t wish to d o so . A nd if the U ni ted States is asked
to interv ene in E ur op e, or Asia, or M rica, i t is entit led to lay down
whatever conditions it likes. If the conditions are met it will get
involved, and if they re no t m et, the n they re no t going to get
involved. And clearly United States political interests will dictate
when they re goin g to get involved an d wh at the con dition s will be.
But ha\ing said that, I don t believe that the rest of the world is
going to or should accept as one of those condit ions that the
United States is above the law and can act as an outlaw. If the
United States gets involved it must be subject to the same laws as
the rest of the internat ional community. That is internat ional
humanitarian law. .And that sort of exceptionalism has been
rejected and \\i l l continue to be rejected, I have no doubt, by
Am erica s closest allies an d friends in E uro pe an d in ot he r
democracies because it is simply not acceptable.
MERON: Thank you, Richard. Ken, on the same point?
ANDERSON: First , on United States exceptionalism. On that, I
ag ree with everything Jus tice G old ston e said, u p to the po int of
appH ing th e same stan dards. I t s no t a quest ion of applying th e
same stan dards ; i t s a quest ion of who s going to m ake the judg -
ments about them and how they apply to indi \ idual cases and
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PANEL DISCUSSION 1199
GOLDSTONE: They are having trouble telling us what the sys-
tem is.
ANDERSON: Hays Parks will disagree with you on that. But let s
go back to the question of what you have with a multilateral force.
Europe does not have a lot at this point in terms of airlift opera-
tions to faraway places. I don t think Aryeh s right in describing
that as being merely a function of the United States turning it
down. The Erench and the Germans and the rest of NATO, with
the excep tion of the British, didn t have aircraft that were capable
of landing at nigh t in the way that th e American aircraft could on
the airfields in Afghanistan. It s jus t operationally no t going to
work. On the other ha nd , while proudly representing myself as an
American unilateralist, I do want to press Professor Walzer a little
bit on this question of
who s
going to do the fighting. The fact is,
the U nited States does nee d allies—and I say this as an unabashed
unilateralist—precisely because in places like Afghanistan we
expect to go in and do the fighting and then we really do expect
somebody else to come in and maintain the peace. So there is a
question abo ut who is going to pu t themselves in harm s way if
you agree, as I think is clearly true in Afghanistan, and very true
in almost all peacekeeping situations, that the most dangerous
work very often turns out to be on the shoulders of the people
who m aintain the peace after
wars.
And I say this as an Am erican
unilateralist. I m no t fond of Europe s positions on
ny
of these
things. But we Am ericans are presum ing that the Europeans will
come in to clean things u p. That s dangerous work and does
change the equation somewhat from how Professor Walzer repre-
sented it. So if I could press you a little bit, Michael, about that.
Does that change how you would think of it?
WALZER: Well, I would prefer a full division of
labor
I think they
should share in the fighting and we should share in the peace-
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1 20 0 S O C I A L R E S E A R C H
the Pentagon. There are good moral and poli t ical reasons to pre-
fer mult i la teral peacemaking and peacekeeping. .And vou bave
only to look at the militar) budgets of the European states to
know that they don t have a s trong c om m itm ent to e i ther of
those. They are more prepared for peacekeeping, but i t is an
open question whether they will be prepared to use force if that
is necessar) in the course of any given peacekeeping operat ion.
Th eir reco rd on that is no t very goo d. I accept that th e U nited
States sho uld n ot be ex em pt f rom intern at ion al just ice , but i t
seems obvious that w hen th ere is full mu ltilateral particip ation in
war, in p eacem aking and peac eke epin g, w hen ever) body has sol-
diers in the field who are liable to be charged with war crimes, it
will be m uc h easier to ma ke th e case that l iability sho uld b e equ al
across the board.
ME RON : T h an k you so m uc h. Professor Walzer. Aryeh, how effec-
tive do you think the ICC is l ikely to be when it comes to prose-
cution of crimes of terrorism? You do recall that crimes against
humanit) provision does provide the normative—
NEIER: T he Int ern atio na l C rimina l Co urt v\ill only be able to deal
with terrorism if terrorism is committed on the ver) large scale
con tem plate d by the c on cep t of crimes against hum anit) . I would
imagine that most terror ism is not going to resemble what hap-
pe ne d on Sep tem ber 11; most terror ism is going to involve
smaller scale crimes. Therefore, the crimes would not f it into the
mandate of the ICC. There is a lso the quest ion of where the
crimes will be committed. If they are committed on the territor)-
of states tha t have n o t ratified th e treat) , un less th er e were a ref-
eren ce by the Secur i t ) C ouncil , the ICC would n ot have jur isdic-
tion. Accordingly, I anticipate that the ICC will have a ver)- l imited
role in dealing with terrorism. I t may be that long in the future,
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PANEL DISCUSSION 1201
MERON: Richard, would you speculate about the first type of the
case, the first case tha t may come u p before the ICC?
GOLDSTONE: That is a crucially important question. I believe
that the future success and credibility of the ICC is going to
depend very much on where it gets involved in its early years.
Obviously my first wish is that it should have n o business, because
there are no vrar crimes committed. But that would be overopti-
mistic, and certainly would not be what the history of the twenti-
eth century should have taught
us.
So I think we must accept that
war crimes are going to continue to be committed all over the
world. The issue is where the ICC is going to get involved. My
ho pe is that in its early years it will receive a C hap ter V reference
from the Securit) Council, and that could well happen.
Assuming hypothetically that there was a chemical weapon \\^r
launched by Iraq on Iran and serious war crimes were committed;
in that situation I would not cinticipate that the U.S. would veto a
reference by the Security Council for the ICC to investigate and
prosecute such a crime. It would be in the political interests of the
United States for that to hap pen. There would be widespread pub-
lic support for it and the United States, rather than veto it, could
well take the lead. It would not be inconsistent
with
its approach to
the ICC—having the Security Council act
as
the gatekeeper. On the
oth er hand , if the ICC, because of the particular countries ratifying
the Rome Treaty, were to get involved in the sort of situation tha t is
happening in the Middle East, I think there would be strong objec-
tion from the United States, and possibly from some European
countries. And one can t ignore the relevance of these political
happenstances on the future credibility of the ICC.
MERON: Thank you so much. Aryeh, you have some comments
on that.
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1 2 02 S O C I A L R E S E A R C H
]
was the D em ocratic R epub lic of the C on go. It faxed in its instru-
ment of ratification. That was accepted by the United Nations. 1
thought it w;is immensely interesting, because Congo has been
invaded by several other Mrican countries. They have troops there,
primarily for the purpose of controlling the mineral and timber
resources in the particular parts of Congo they occupy. They are
looting those resources. T he gov ernm ent of Con go do esn t have the
capacit) to get th em to remov e the ir troo ps. By ratifying the statute
for the ICC, Congo has now given them an incentive to withdraw
their troo ps. If they d on t d o so by July 1, an d if their forces com mit
VNar crim es as they have co m m itte d th em u p to now, tho se co un -
tries—and they include Rw anda, Ug anda , Zimbabwe, Nam ibia, an d
Angola—could face prosecution before the ICC.
Something similar is occurring in another countr) where the gov-
ernment lacks its own capacit) to deal with war crimes: Colombia.
President Andres Pastrana, whose term concludes soon, is trying to
sec ure ratification of th e d-eat) before he leaves office. If h e succeeds,
then the guerrilla forces, the EARC, and the ELN, and the right-wing
militias that have be en com m itting great crimes in Colom bia
will
face
the possibilit) of indictment by the ICC. This is a phenomenon we
did not anticipate. Governments that are themselves incapable of
dealing vvith terrible crimes that are co m m itted on their territory are
tur nin g to the ICC . If
were the pro secu tor before the ICC, you can
be sure that Con go would be at the to p of my list of countrie s to look
at. A nd if Colom bia also ratifies, it w ould b e n ex t in line.
MERON: Professor Walzer?
W^\LZER: Th at s a ver) inte restin g sug gestion, bu t I wo uld thi nk
it potentially disastrous. Suppose such a case were brought, and
suppose that the Congolese government won the case against the
var ious intervening sta tes , and that there was an ICC condemna-
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PANEL DISCUSSION 12 03
NEEER: That raises the larger question of how the International
Criminal Court is able to enforce its indictments. The court will
only be able to
tr>
those it app rehend s. So it would have to app re-
hend defendants in order to conduct trials. This was a terrible
prob lem for the Yugosla\da cou rt when it began. Over time, how-
ever, the pressure built up . It beccime necessary for governments
to turn over those who were indicted an d for interna tional forces
to apprehend those who were indicted. Also, in the case of the
Yugosla\ ia tribunal, even when it was no t clear how it would
ap pre he nd people like Karadzic and M ladic, the re
was
great value
in bringing the indictments against them. It delegitimized them.
It excluded them from the Dayton peace talks. It excluded them
from exercising political infiuence in Bosnia after the end of the
war. Governments in Angola, Zimbabwe, Rwanda, and Uganda
are not eager to be indicted by the International Criminal Court.
I believe this will make them fearful. It could be a factor, even
before the jurisdiction of the court kicks in, in persuad ing them
to withdraw their forces from Congo. If they do not withdraw
their forces, or at least rein in their forces, and preven t them from
com mitting the crimes that would be subject to the jurisdiction of
the ICC, they would face p rosecution. I think this is an extremely
positive development.
e
were being told at one point that the
ICC might prevent various peace settlements because dictators
would have no incentive to give up authority for fear of prosecu-
tion. Now we are seeing tha t the ICC might effectively contribute
to peace.
GOLDSTONE: If can just add, in support of what Aryeh says, in
the very early days of the Rwanda tribunal I announced the iden-
tity of some of the people we were looking for, and some were in
Kenya. And the president of Kenya immediately said th at if we sent
ou r investigators into his country they would be arres ted, an d that
he was not p repa red to extradite, to transfer any people w anted by
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1 20 4 S O C l A l R E S E A R C H
demning that atti tude. The president of the Securitv Council
made an appropriate statement, sa)ing that this was quite unac-
ceptable and a breach of the Securitv Council resolution. And act-
ing under that pressure the a t t i tude of the Kenyan government
ch an ge d v\ithin a week. An d we got the g reen light to send ou r
investigators. .And the transfer of indicted persons followed.
MERON: W^ have seen that there are uvo visions of the first case
that will come up. Either referenced by the Securit) Council,
under Chapter \TI , somewhat using the model of the ad hoc tr i -
buna ls but a lso using the new structure , and the new jud ge s, an d
the new prosecutor of the ICC. And the second is, because states
might be involved in various not terribly prett) things, they have
become par t ies to the s ta tute .
em rks
RICHARD J GOLDSTONE
During the f irst years of their existence the two United Nations
ad hoc c r imina l t r ibuna ls—for the former Yugoslavia and
Rw anda, respectively—su ffered a sub stantia l lack of credibilit)-.
There was a perception that the Western powers had set them up
to mollify human rights activists at home who were concerned
that no effective steps had been taken to prevent some of the
worst human rights violations since W^rld W^r II. That was fol-
lowed by bureaucratic inertia, which substantially delayed the tr i-
buna ls f rom becoming opera t iona l .
This disappointing start for the f irst international war crimes
tr ibunals changed for the bet ter when invest igat ions began in
earnest and indictments were issued. Arrest warrants followed
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PANEL DISCUSSION 120 5
having larger number of defendants arrested and transferred to
the seat of the tribunal in Arusha, Tanzania.
The Yugoslavia tribunal had no option but to begin with the
smaller num be r of war criminals with whom the available victims
and witnesses came into contact. Th ere were no smoking guns
left by the leaders who were most guilt\' and circumstantial cases
had to be developed against them. This was accomplished by
establishing a patte rn of war crimes over an a rea of Bosnia, which
was politically valuable to the Bosnian Serb administration of
Radovan Karadzic and his military'
chief
Ratko M ladic.
WTien, in July and November 1995, indictments, which
included charges of genocide, were issued against both Karadzic
and Mladic, the problem was the unwillingness or inability of
United Nations (and later NATO) troops to arrest those leaders.
This problem still persists, notwithstanding recent unsuccessful
attempts to make such arrests. Th en , in the wake of ethn ic cleans-
ing in Kosovo, the president of the Federal Republic of
Yugoslavia, Slobodan Milose\ic, was indicted for crimes against
humanit)' and other war crimes. Not long after, he was forced
from power and w s su rren de red by his successors for trial at T he
Hague. New indictments followed for genocide allegedly com-
mitted by the Serb army in Bosnia and Croatia. The trial contin-
ues and is expected to last at least until the end of 2003.
In Arusha, the Rwanda tribunal has placed former leaders on
trial. The former prime minister of Rwanda was found guilty of
genocide and has been sentenced to life imprisonment. That tri-
bunal has also held that systematic mass rape, in the circum-
stances established by the prosecutor, am oun ted to genocide.
The two tribunals have been responsible for significant
advances in humanitarian law in a number of important areas.
They have dem onstrated that if law is implem ented , it advances:
if it is ignored, it stagnates. This and other successes of the two
United Nations tribunals encouraged and hastened the establish-
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1 20 6 S O C I A L R E S E A R C H
become i ts most significant opponent. That notwithstanding, the
Rome Treat) establishing the ICC now has some 74 ratifications
and will be functional in
2003.
Th e success of the ICC will d ep en d
on the nature of the cases it will consider in its early vears. If it
assumes juri sd ictio n for significant war crimes an d investigates
and prosecutes them professionally and efficiently, it will build
credibili t) an d at tract sup po rt form the global comm unit) . T he
Securit) Council itself might well call upon it to use its Chapter 7
powers rather than choosing to establish other ad hoc tribunal .
There can be no doubt that the ICC will have much to learn
from the successes and failures of the two United Nations tri-
bu na ls. Its credibilit) will be crucial to its success. U po n tha t c red-
ibilit) v\i l l depend i ts funding at an adequate level and the extent
to which go vern m ents will be p re pa re d to comply with i ts orders .
There can be no doubt that its success will herald the end of
impunit) for war criminals.
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