What is my problem with the Hague Tribunal?

The Hague Tribunal (ICTY) is a case of 'victor's justice.' It is a scary place where the politicians, soldiers, diplomats and barristers of Western Europe, which won the Balkan wars, try the politicians, soldiers, diplomats and barristers of Serbia and Serbian Bosnia, the wars' losers.

This would be okay (remember the Nuremberg trials?) if the ICTY actually called itself a victors' court, but it calls itself "international law" and hopes to set a precedent for other tribunals, and an International Criminal Court that would have jurisdiction over all war crimes.

As international law, ICTY cannot stand. The United States has balked from subjecting its forces to the jurisdiction of UN tribunals, be they site-specific or permanent. This double standard prevents American war criminals such as Henry Kissinger, King Bush I or Oliver North from suffering prosecution; each time a new Serbian genocidal maniac is convicted by the ICTY, though, this standard of US exception becomes stronger.

Even if the United States were to accept the jurisdiction of the United Nations in its own wartime activities, eliminating the double standard, such international criminal courts would pose problems. The central fault with international tribunals is their violation of state sovereignty.

Sovereignty may seem like a murky legal concept to most people, but it is the basis of the nation-state system, which was founded in 1648 with the Treaty of Westphalia.

This treaty put an end to a very long Holy War, which was just the most recent of a series of Holy Wars within the Christian religions and, earlier, against Islam. The gist of this Treaty was that the religion of any given country is an internal matter, decided by the country's rulers. No other country has any say in another's religion; this issue is off the table as a reason to fight a war.

This sovereignty over internal affairs was dear to most of the people of Serbia, except for the ethnic Albanian Muslims, who mostly don't consider themselves a part of the country. Serbians oppose the extradition of their former leader to the Hague because they either think that he is right or they want the pleasure of trying, convicting, and punishing him themselves. The Federal Republic of Yugoslavia, in fact, had to be bribed by the U.S. government to turn over Milosevic to the Yugoslav Tribunal.

Let me re-emphasize: Despite hating Milosevic as much, or more, than USians do, they wanted to try him themselves. For Milosevic to be lifted out of their hands by the United Nations and tried in Europe was an insult to the work of Serb and Albanian reformers who were trying to build, out of the ashes, a state based on the rule of law.

After the horrible attacks on the World Trade Center and Pentagon, we may be forced to abandon even double-standard international frameworks such as the Hague. To coordinate its war against terrorism, the United States is pursuing the strength of regional alliances, such as NATO, over UN-based international law. International law and its ban on terrorism doesn't mean a hill of beans to the United States foreign service right now, which has discovered that it has no effective intelligence network in Central Asia and is forced to rely on other governments' information to find Osama bin Laden and other terrorists. Rather than doing this, the US will recruit unsavory foreign agents itself, perhaps funding wholesale criminal activity in an attempt to gather information independently. Covertly and overtly, the US has decided to rely on its own resources in light of a direct attack on its national security.

For the last ten years, the US and other world powers have focused more energy on developing the economic framework of the new world order than on the political framework; while US trade representatives have worked for the harmonization of trade rules around the world, they have allowed parallel, and competing, international security structures to develop.

The US should think back to Westphalia. While the time of true isolated sovereignty may be over, the hard and fast rule that Westphalia once represented has not been replaced effectively by something else. Unlike the nation-state system, the loose international frameworks for peace and security have not been able to prevent violent, terroristic holy wars from spreading, like a cancer, all over the world.