Judge and master
July 18, 2002 | More from Don Murray
Let us now remember Sir Peter von Hagenbach. To him belongs the dubious honour of being tried and convicted before the first ad hoc international war crimes tribunal. This took place some time ago; it was 1474, to be precise.
Von Hagenbach’s crimes were committed in and around the town of Breisach, on the Upper Rhine, in what is today Germany. He had been sent as governor of the occupied town by the Duke of Burgundy (known as Charles the Bold to his friends and as Charles the Terrible to his detractors). Von Hagenbach’s instructions were to keep order and these he executed with savage zealousness. Murder, rape, illegal taxation and the wanton confiscation of private property were carried out by his soldiers and officials to terrify the local population into submission.
Inhabitants of neighbouring territories, including Swiss merchants on their way to the Frankfurt fair, also felt the lash of these atrocities. This was a mistake. A large coalition (Austria, France, Bern and the towns and knights of the Upper Rhine) had already been formed to deal with the ambitions of Charles the Bold. The coalition began by laying siege to Breisach. Von Hagenbach’s mercenaries revolted and he was captured.
Sir Peter is of interest to legal scholars because, rather than despatch him summarily or send him before a local court, the archduke of Austria, as the new sovereign of Breisach, decided to set up a special tribunal, with 28 judges chosen from the ranks of each member of the coalition. The archduke himself named the chief judge and the chief prosecutor. Von Hagenbach was charged with “trampling the laws of God and man,” specifically with ordering murder, rape, perjury and other “malefacta.” He was also accused of ordering his non-German mercenaries to kill the men in the houses where they were quartered so that the women and children would be completely at their mercy.
Sir Peter’s defence was that, as chief peacekeeper in Breisach for the Duke of Burgundy, he was simply following orders. “Is it not known that soldiers owe absolute obedience to their superiors?” his counsel asked. And then this second line of defence: “Sir Peter von
Hagenbach does not recognise any other judge and master but the Duke of Burgundy.” It didn’t work. Sir Peter was found guilty, stripped of his knighthood and then of his head.
Five hundred and twenty-eight years and several ad hoc war crimes tribunals later, the world finally has a permanent tribunal to deal with such matters. This is the International Criminal Court. It officially came into being on July 1, 2002, after more than 60 countries had ratified the treaty creating it.
Within days the ICC had triggered its first crisis. It was one which Sir Peter von Hagenbach and all the other actors in the 1474 trial would have recognized. Its essence boiled down to one question: who shall judge the peacekeepers of the powerful? The short answer, according to the United States government, is – no one else but us.
Washington had never liked the idea of the ICC but, during the Clinton administration, it had held its nose and participated in the negotiations setting it up. It even signed the treaty. The Bush administration hasn’t been as polite. This spring it denounced the treaty, saying it was withdrawing Washington’s signature. It would never be a party to the court. In July it went further, threatening to veto the UN peacekeeping mission in Bosnia unless the UN Security Council passed a resolution granting American peacekeepers and those from other countries immunity from ICC prosecutions.
Much of the rest of the world reacted angrily. Javier Solana, the European Union’s foreign-policy chief, said the U.S. was “taking hostage the operation in Bosnia.” A German minister talked of “scarcely concealed blackmail.” In the face of such criticism the U.S. offered a “compromise.” The Security Council would only have to pass a resolution granting immunity to peacekeepers for one year.
This was quickly accepted. The 15 Security Council members voted unanimously in favour of the resolution, which also states the council’s intention to renew the immunity in 12 months time. Several European countries said they were pleased. Some even expressed the idea that this was a modest victory for their side. But the Canadian ambassador to the UN called the process an “abuse of power.” Paul Heinbecker said: “it’s a sad day for the United Nations.” The Canadian view is that the Security Council resolution amounted to a redrafting of the treaty creating the ICC. It was probably illegal, and certainly a dubious precedent.
As this confrontation unfolded there was much headscratching in Europe as to what it really meant. Was this simply another angry American reaction against what its third president, Thomas Jefferson, had once described as “entangling alliances”? Was it the prologue to a total American disengagement from UN peacekeeping? Was it another example of the new Bush doctrine of pre-emptive diplomacy?
Whatever it was, there were several large ironies in the fight. The Europeans found it puzzling because, in their eyes, there were already so many built-in safeguards in the treaty concerning peacekeepers that the chances of one ending up before the ICC were, in the words of British Prime Minister Tony Blair, “minuscule.” And just to be safe, the French had already quietly negotiated a seven-year opt-out period for their own soldiers involved in peacekeeping.
As for the U.S. disengaging from UN peacekeeping, that was already almost a fait accompli. Of the 45,000 UN peacekeepers around the world, only 700 are American personnel and none of them are combat troops. Where American troops are involved in peacekeeping, notably in the Balkans, they operate under their own rules, not the UN’s.
These questions mask the main one. It remains the same as five centuries ago: is international justice to be equal justice or victors’ justice? Sir Peter von Hagenbach’s defiant defence in 1474 that he recognized only one judge and master, his own duke, perfectly encapsulates Washington’s position in 2002. Unfortunately for Sir Peter, his duke was not in a position to do what Washington has done. And in doing it, Washington has ensured that two-track international justice will be the norm for years, and perhaps for decades to come.