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Bosnia Trial Shows Court's Rising Clout

Current war-crimes hearings may be opening the door to 'supranational' laws.

By Staff writer of The Christian Science Monitor / October 1, 1997


Timohir Blaskic, a youngish Croatian general indicted for "ethnic cleansing" in Bosnia, stares impassively through bulletproof glass as debate on international law thickens the air in this small courtroom, built two years ago to house the United Nations International Criminal Tribunal for the Former Yugoslavia.

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General Blaskic, the highest official to be tried here so far, allegedly failed in 1993 to stop his militia from committing heinous acts of murder and mayhem as it swept through central Bosnia.

Yet last week's hearing was not a chronicle of civilian killings or mass destruction. The issues were less sensational, and less-reported. But they are arguably of greater long-term significance. The question: Can this tribunal require a state to turn over internal documents and order its officials to testify?

The issue, as the judges and lawyers acknowledged, goes to the heart of the four-year-old tribunal's ability to function, especially if indicted leaders like Bosnian Serb leader Radovan Karadzic or top Bosnian Croat Gen. Dario Kordic are ever brought to justice.

Behind what seemed an arcane five-hour squabble over theories of "sovereignty" lies an important issue for any future permanent international criminal court. (Such a court may be voted on this fall at the United Nations.)

Legal advisers here quietly assert that the genocide in Bosnia - and also in Rwanda - have forced the question of shared values and rules on the world legal community. The older "International Court of Justice," also at The Hague, settles conventional disputes between states. But the new tribunal would set precedents that suspend national sovereignty in favor of a developing set of "supranational" laws or standards of accountability in extreme cases such as genocide.

Last January, ruling on a need for a fair criminal trial and a thorough investigation for both prosecutor and defense, tribunal Judge Gabrielle Kirk MacDonald subpoenaed the government of Croatia, asking for a plethora of documents relating to the activities and communications of Blaskic. The subpoena also required testimony about Blaskic from Croatian Minister of Defense Goyko Susak.

Uncharted territory

Legally, this is uncharted territory. No law has existed that requires a state to turn over internal notes, phone records, communiques, and memos. State officials invariably say "no" when given such requests.

Croatia was no exception. In several appeals, Croatia has said the tribunal is exceeding its authority and that subpoenas violate its national security. But tribunal judges, set up under Chapter 7 of the UN Charter, the most binding level of compliance, have steadily overturned the appeals.

A five-judge panel in July ruled that the court had the power to request internal Croatian documents "... if it is necessary in order to fulfill [the court's] fundamental purposes and to achieve its effective functioning."

A historic appeal

Last week's hearing was Croatia's last appeal and generally regarded as a historic one.