A Call for the review of the treaty of Rome

by Emmanuel Omoh Esiemokhai


After the death of Marshal Tito of Yugoslavia, the internal coercion of Yugoslavia could not meet the political demands by various nation-states within Yugoslavia, which rightly demanded the Right to Self-determination, including full independence.

The three main peoples of Yugoslavia are the Croats, the Serbs and the Slovenes. There were also Bosnians and Herzegovina, Macedonia and Montenegro.
These people have been very literate since the 9th century. They developed “separate literature, which reflected local political conditions.”

The educated ones absorbed Greek ecclesiastical and secular writings. “Their prolific literary output included Serbian history, tales of the Greeks, Hebrew, Romans apocryphal legends and poetry, but cultural activities were later stifled by foreign domination.” Literary and intellectual activities in Yugoslavia were highly priced.

The novels or folk stories were often a vehicle for social criticism. All these framed the intellectual background to the Serbian stubborn attachment to national ethos, national pride and a spirit of rebellion.

The mineral-rich region of Bosnia-Herzegovina wanted independence from the other regions. The Serbs resisted this move. The Croats had also wanted self-determination.

The political and cultural history of Yugoslavia must be clearly understood in order to apprehend the various issues that could come up at the trial of General Mladcic at the International Criminal Court.
BOSAS INTERNATIONAL LAW BUREAU, New Covenant House, Fugar, Edo State has scheduled a seminar on the General Mladcic case. The Curatorium of BOSAS INTERNATIONAL LAW BUREAU has invited Prof. Dr Chris Okeke, Dean of Law, Golden Gate University, California, USA and Prof. Dmitry Sorokin to lead discussions at the Seminar. Our International Law Bureau is expecting all our former international law students to come in great numbers, as participants.(Call 0703666639, e-mail eesiemokhai@yahoo.com).

Our preliminary observations are outlined here for noting. The immediate issues that need clarifications are:
1) It is assumed that Serbia is a signatory of the Treaty of Rome.
2) It is assumed that General Mladcic is fit to stand trial.
3) Is the ICC the most suitable judicial body to try War crimes or a Military Tribunal, which would by its composition have military judges, military advocates, who are learned in the International Law of Armed Conflict and International Humanitarian Law.
4) How correct is the allocation of a defence Counsel by a Court Registry?
5) A defendant has an inherent right to freely choose his own defence team. This is a cardinal principle of natural justice and a universally accepted principle of jurisprudence.
6) General Mladcic has insisted that he cannot proceed without the two Counsels, who he wants to represent him. We think that this is a legitimate demand. Mladcic said that he did not know the Registry Defence Counsel, “although he likes him”
7) One would like to know the Complainant(s) or Complainant in the case. What is their legal status?
8) Evidential processes would seem to pose problems since some witnesses may have died. This was why the authorities were very eager to apprehend General Mladcic for over a decade.
9) The undignified dialogue between the recalcitrant general and the Honourable Judge Orie does not seem to create the decorum necessary for a judicial proceeding to hold.
10) Perhaps the Judge should clear the gallery, so that Mladcic would have no audience to play to.
11) The Judge seems to act as both Judge and prosecutor, which creates the impression that fair-hearing could be jeopardized.
12) What would have happened if Mladcic were tried in a Serbian Court?
13) Is it only more convenient to try him ex-territorially?
14) How long will this trial last?
15) Has the Court the resources to handle the logistics of the case?
16) The verdict of a Dutch court, which indicted the Dutch Government of murders in Srebrenica, seems to throw a spanner in the wheels of the court proceedings, if judicial precedent were to apply. However,International Courts do not feel bound be precedents. ( See ICJ decisions)
17) In 1995, the UN Dutch troops handed three Muslim men to Serbian forces. They were executed.
18) Can there be any assumption of innocence until found guilty in the face of “overarching charges” that speak for themselves?
19) A critical examination of the charges as read out by the ICC Judge Orie yields the unmistakable impression that some of the charges are too brief and geographical locations and the nationalities of the people murdered or against whom crimes against humanity were committed were not mentioned. There seems to be elements of vagueness in the construction of the charges.
20) Article 62 of the Court’s proceedings, which enjoined the Court to enter a plea of not guilty on behalf of the accused appears to be inelegant, since “there is no art to find the mind’s construction on the face” or in the mind. The judge, no matter how objective he will try to be cannot escape being seen as inquisitorial.
21) Logically, if the Court can enter a not guilty plea on the defendant’s behalf, can the Court then proceed to set him free if he stoically refuses to participate in the entire proceedings?
22) It is true that the International Criminal Court is still grappling with the evolution of its jurisprudence. As a result, its imperfect judicial system often raises serious questions that need resolutions.
23) It is still not very clear which judicial order the Court has adopted. It is not the Common Law system. It is not the German legal system, (Das Bundesgezetsbuch) It is not modeled along Code Civil Francaise, nor the Anglo-Dutch system. It approximates to the US judicial system because the drafters of the Treaty of Rome had the credentials of US law schools. It is far from the Soviet/Russian legal system.
24) The system seems to assume that the accused is guilty, but has to prove his innocence. This adversarial approach to justice is more partisan than balanced.
25) War crimes and crimes against humanity are very serious indictments and in order for the international community to express its disgust, a proper juridical order must be established. There is a strong impression that some leaders, who committed war crimes, are immune from prosecution. This is the weakest aspect of the ICC. Equality is equity.
26) ‘The five decades since the Second World War, have witnessed many conflicts, international and non-international, each of which has added to the sum of human misery and destruction of lives and property.
27) In order to discourage wars and the brutalities inherent in the work of fallen angels, the international community has tried to evolve a complex, but inchoate legal system to act as a deterrent and in some cases, prosecute crimes against humanity and war crimes.
28) This is a noble idea, which must not be used to humiliate or terrorize leaders of powerless nations.
29) General Mladcic and his Military High Command must be made to answer for their actions during the Serbian crisis.
30) There seems to be other parties that are not being tried since “it takes two to tango”. In any judicial process, examination, re-examination and cross-examination are recognized as very important for the truth to emerge. The problem with this complicated case is the problem of how evidence was gathered and processed. How do we establish the harshness of offensive action and counter-action?
31) Since combatants strive to take military advantage over the other, how can one determine the balance of and define military objective, which is aimed at defeating a perceived enemy? If the attack did not spare the civilian population, such acts are clearly indictable.

To massacre prisoners of war is a crime against humanity. Annexation of territory and excessive bombardment, including the use of torture, cruel, inhuman and degrading treatment or punishment, are all war crimes. Violations of International Humanitarian Laws as enshrined in the Four Geneva Conventions of 1949 and other treaties and Convention aimed at regulating wars, must form the fundamental principles to prosecute alleged war criminals.
33) No court can function properly, unless the court knows the law well and the court must accept the imperfections in its jurisprudence, which the litigants must trust to give them an opportunity to appeal to, and are ready to be bound by its decisions.
34) Two international institutions can guide the ICC; the armies of nations and the universities.
35) International humanitarian law must be affirmed to good purpose. The armed forces understand the laws of war and can assess objectively, where the laws of armed conflict have been violated. The universities, according to Pietro Verri, have a dual function to explore the subject
Intellectually, by helping to form a code of law in line with modern needs and to encourage a greater knowledge of international humanitarian law.

In our world of disputed values, in which international law has been undermined, most conflicts are influenced by ideological or psychological interests. The dominance of Euro-American positions in world politics gives dogma, a pride of place, which it does not deserve.
In modern warfare, projectiles, cluster bombs and other heavy-guns are used and these violate the Declaration of St Petersburg of 1868.

A close look at the Mladcic case, must review in extenso, the UN Convention on the Prevention and Punishment of the Crime of Genocide., UN Resolution 260(111), 9 December, 1948 This Convention fortified the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal. United Nations International Law Commission, June-July 1950.
What will strengthen the ICC, is the UN Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity. UN General Assembly Resolution, 23919 (XX111), 26 November, 1968.

Human rights must be respected in armed conflicts and Refugees should be treated in a humane manner. International law has admonished states to cooperate to detect, arrest, eradicate and punish persons, who are guilty of war crimes and crimes against humanity.

This provision should be extended to include all states, which believe in the rule of law. Hostage-taking, kidnapping of persons, torture, inhuman and degrading treatment or punishment, water- boarding, solitary confinement, diminish the worth of the human person.
Our civilization has become tarnished as the Luciferian hierarchy, the associates of the culture of evil, freely devalues human lives in all theatres of wars.

As a result of the need to try war criminals and deter would-be-perpetrators of war crimes and crimes against humanity, it is time to review the Treaty of Rome and re-draft the Criminal Procedure Rules of the International Criminal Court at The Hague.

It very important to work assiduously to confer the status of Compulsory jurisdiction on the ICC, so that all states could be brought to the ICC,in order to banish the notion that only helpless states and disliked individuals are the targets of the Court’s prosecutors.

This topic should be included in the agenda of the United Nations Meeting in September 2011.

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