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From Nuremberg to The Hague and Kigali, the latter half of the twentieth century witnessed the beginnings of an international framework for the prosecution and punishment of war crimes. Yet progress in this area has been sporadic and discontinuous, often seeming to reveal as much or more about what does not work as about what does. Contemporary eﬀorts to establish a permanent international criminal court usually are traced to the Universal Declaration of Human Rights adopted by the United Nations General Assembly a half-century ago. These eﬀorts continued through a summer of 1998 meeting of more than 100 nations in Rome that led to a tentative treaty to establish a permanent international criminal court (ICC). Continuing eﬀorts include war crime tribunal activity in relation to the wars in Rwanda and the former Yugoslavia and ongoing eﬀorts to ratify and implement the treaty for a permanent court through the United Nations. Although there is much anecdotal and growing empirical evidence of the need for a permanent institution to deal with war crimes, there is a lack of social science analysis and a resulting knowledge base that could help to broaden the foundation of support for an international criminal court by the public. The agenda of such a court increasingly is recognized as not only involving righting wrongs of the past but also preventing war crimes in the future.
1. The Lessons Of War
A lesson of World War I was that, left to their own devices, vanquished as well as victorious nations often will do little to punish war criminals appropriately (Marrus 1997). Following World War I, the vulnerable politicians of the ﬂedgling Weimar Republic insisted that the prosecution and punishment of German war criminals should be handled by the German Supreme Court in Leipzig. The resulting sentences ranged from two months to four years of imprisonment and were given to only six of 12 war criminals tried from a list of more than 900 suspects supplied by the Allied forces.
The proceedings at Nuremberg following World War II were a notable improvement. The results of Nuremberg are made more notable by the fact that public opinion tended to simply favor summary execution of the captured leaders of the Axis powers. Franklin Roosevelt’s Secretary of War, Henry Stimson, argued instead for a trial before an international tribunal. Roosevelt’s successor as president, Harry Truman, endorsed the trial model and persuaded the Allied powers to work through the United Nations in establishing the International Military Tribunal (IMT) to prosecute and punish ‘crimes against peace,’ ‘war crimes,’ and ‘crimes against humanity.’
The resulting Nuremberg Indictment was regarded as an extension of the common law of the nations involved, although this common law was far from universally recognized at the time of Nuremberg. A defense posed in response to the resulting prosecutions was that the tribunal’s charges were ex post facto, retroactive creations. Marrus (1997, pp. 565–6) notes that the Harvard criminologist and law professor, Sheldon Glueck, responded with the common law retort that
Surely … Hitler, Himmler, Goering, Ribbentrop, Frank, Doenitz, and the rest … knew full well that murder is murder, whether wholesale or retail, whether committed in pursuance of a gigantic conspiracy to disregard all treaties and wage lawless wars or of a smaller conspiracy evolved by a group of domestic murderers.
Twelve war criminals included under the Nuremberg Indictment received death sentences. Three acquittals also demonstrated that such a tribunal could provide reprieve as well as punishment. The development of a jurisprudence of ‘crimes against humanity’ was especially noteworthy as an innovation that addressed the persecution of speciﬁc groups, in this case including the German Jews as well as other groups. And, of course, Nuremberg helped establish in the public mind the responsibility of individuals to refuse illegal orders. The tribunal’s work also brought into limited question some Allied war strategies and methods, including the ﬁrebombing of German cities.
But the Nuremberg Tribunal also received justiﬁable criticism. The presence on the tribunal of Russian judges and the impunity of Stalin and other Russian leaders belied their wartime atrocities. Some charges of ‘crimes against peace’ were clumsily conceived and pursued. In spite of Eleanor Roosevelt’s successful work for the adoption of the Universal Declaration of Human Rights in 1948, this eﬀort expressly rejected a standing tribunal to deal with future war crimes. Similarly, the impetus of the Nuremberg Tribunal was to put the Nazi war crimes into the past, and the IMT did not become the model it might have for a continuing institutional response to the problems of war crime.
2. The Balkans And Rwanda
There certainly was no absence of need for the prosecution and punishment of war crimes following World War II and in our more recent history. A partial contemporary list would certainly include Argentina’s ‘dirty war,’ South Africa’s apartheid, Pinochet’s Chile, the acts of communist Eastern European governments, as well as more recent events in Bosnia, Kosovo, and Rwanda (Neier 1998). During the Cold War, which lasted for most of the second half of the twentieth century, human rights violations were routinely ignored by the West in the process of supporting anti-communist governments. As the Cold War ended, this tendency was extended in the ostensible interest of promoting democratization. For example, in Pinochet’s Chile and Botha’s South Africa, amnesties became bargaining devices to promote democratic transitions. In Latin America and in South Africa, truth commissions became compensatory vehicles of reconciliation. The liability of this approach, of course, is that political and military mass murderers have escaped prosecution and punishment.
Events in the Balkans and Rwanda evolved against this international backdrop, with the diﬀerence that feminist scholars and activists became involved in exposing the systematic use of rape as an instrument of terror and intimidation in waging war. A United Nations commission assisted by human rights groups found that in the 1990s ethnic Serb military and paramilitary groups had systematically tolerated and encouraged the raping of Bosnian Muslim women as part of the eﬀort to drive Muslims from their communities. This form of sexual violence was recognized as a deliberate tactic used to terrorize and humiliate a civilian population not only through the immediate assaults involved, but also through the creation of forced pregnancies. Rape was also instrumental in the genocidal campaign waged by Hutu troops against Tutsi women in the war conducted in Rwanda in 1994. Both in Bosnia and Rwanda, these tactics were recognized as premeditated acts of war aimed at women.
Commission and human rights work in the Balkans and Rwanda formed the foundation for the demand that rape be recognized internationally as a war crime, in a manner analogous to assaults against non- combatants, mistreatment of prisoners, torture, an other systematic, deliberate, and premeditated forms of violence. This innovation was crucial in the formation by the United Nations Security Council of two ad hoc criminal tribunals for the former Yugoslavia and Rwanda in 1993 and 1994 respectively. Justice Richard Goldstone served as the ﬁrst war crimes prosecutor for the Balkans and Rwanda and played an important role in successfully treating sex crimes as a form of genocide and as crimes against humanity.
Each of the ad hoc tribunals currently has investigators, police oﬃcers, military analysts, legal advisers, trial lawyers, and judges who are involved in developing and trying cases, from the exhumation of mass graves through the preparation of formal indictments and court proceedings, with trials, dispositions, and appeal hearings held in Arusha, Tanzania and The Hague, Netherlands. The tribunal investigators and prosecutors play unique roles through their daily contacts with victims and witnesses. This involves building the trust and cooperation that is necessary in translating victims’ and witnesses’ stories of atrocities into the testimony that is needed to try cases. The most severe sentence that is available to the tribunals is life imprisonment.
The tribunals have indicted about 20 persons a year since their formation. Moving from indictment to arrest and prosecution is often a formidable process, since the tribunals must rely on the police and armed forces of cooperating nations to apprehend and take indicted persons into custody. As of spring 1999, 34 persons had been arrested and charged before the Rwanda tribunal, and 26 before the tribunal for the former Yugoslavia. Assuming custody and the initiation of a prosecution, the nature of the cases and severe prospective punishments creates further incentives for the accused to delay the beginning of a trial and then pursue a lengthy defense. Justice Goldstone’s successor as the chief tribunal prosecutor, Justice Louise Arbour, attempted to speed up the process by trying accused in groups, but she was rebuﬀed by the Court. Justice Arbour is recognized for numerous reforms and innovations that have dramatically improved and expanded the role of the ad hoc tribunals. The tribunal in Rwanda was mired in United Nations bureaucracy and allegations of corruption until a shakeup by Arbour that led to increased arrests and the successful prosecution of a former prime minister held responsible for a genocide that included the slaughter of more than 700,000 Rwandans in 1994. At one point, Arbour was physically prevented from entering Kosovo by Yugoslavian border guards. Undeterred, she pursued the indictment of former Bosnian Serb President Radovan Karadzic and the General Ratko Mladic. When Arbour assumed her position there existed no clear precedent for indicting a sitting head of government for war crimes, although Admiral Karl Doenitz, as the Nazi head of state following Hitler’s suicide at the end of World War II, had been convicted and imprisoned for war crimes at Nuremberg. Arbour established a clear precedent when she obtained a war crimes indictment against Serbian President Slobodan Milosevic. She gained further attention when she remarked in public that NATO leaders could conceivably stand trial for air strikes that caused civilian deaths in Yugoslavia. This signal of evenhandedness is important because ﬁgures such as Milosevic have drawn comparisons between killings in Kosovo and the execution of Vietnamese villagers by American soldiers during the war in Southeast Asia. One of Arbour’s most signiﬁcant achievements involved bringing war crimes prosecutions fully into the present as a ‘real-time’ institutional response to atrocities and genocide virtually as they happened in Kosovo.
The scale of the tasks that confront war crimes tribunals of the kinds recently established is suggested by the situation in Rwanda where more than 100,000 people, almost all Hutus, have been held in jail on charges stemming from the massacres and other crimes involved in that country’s genocidal conﬂicts. No legal system can put all of the guilty through full and formal trial procedures, but prosecuting high-level or representative perpetrators is essential to achieving a sense of justice. There is a clear contrast between the Western-inﬂuenced emphasis on time-and-resource consuming procedural safeguards in the tribunal context and the expedited forms of criminal and civil dispute resolution practiced in settings such as the Rwandan courts. Some combination of jurisdictions is required, with tribunal responsibility for cases with greater potential impact nationally and internationally. This kind of issue has complicated calls for a more permanent court for war crimes.
3. An International Criminal Court
The Balkan and Rwandan tribunals have served as prospective models for a permanent international court. In July 1998, more than 100 countries met in Rome with American participation to negotiate a treaty creating a permanent war crimes tribunal that would act independently of the United Nations and its Security Council. The result was a vote approving in principle an International Criminal Court (ICC) with powers to try cases of genocide, war crimes, crimes against humanity, and crimes of aggression. The positive votes for the treaty to establish the court came from 120 nations, with 21 nations abstaining and seven nations opposed, including the USA. Unlikely allies of the USA in this opposition included Libya, Algeria, China, Qatar, and Yemen, with Israel also not signing.
American oﬃcials involved in the negotiation of the treaty were especially concerned about the risks the ICC could pose to its own military and political purposes and personnel. These oﬃcials were quick to note that with about 200,000 military personnel permanently stationed in about 40 countries around the world, the USA has much at stake. The risk for the USA, it is argued, is increased by expectations that this nation act quickly in crisis situations, and that the world relies on the USA’s being able to do so without fear of arbitrary litigation and liability. The worry is that countries such as Cuba or Libya would use the court to harass the USA in its legitimate eﬀorts. To address this concern, the US negotiators in Rome sought guarantees that American military forces and agents would not be prosecuted by the ICC without US consent. At one point in the deliberations an American motion to obtain such guarantees was refused by a vote of 113 to 17, with 25 abstentions. The concern was that if the USA achieved such a loophole, other nations would expect similar protection. Despite the strong support from most nations for the establishment of the ICC, its future remains in doubt. The treaty requires formal ratiﬁcation by at least 60 nations before it can take eﬀect.
The provisions of the treaty provide that the ICC could proceed with a case if the accused was from a signatory nation or the crime took place within a country that had ceded jurisdiction to the international body. The court could not take jurisdiction over a case unless a national court failed to act, leading advocates to argue that its existence could constitute an important institutional incentive for countries to prosecute their own war criminals. The court would be made up of an international panel of judges, a prosecutor’s oﬃce, and an administrator; it would presumably rank along with other international institutions such as the World Trade Organization, the International Monetary Fund, and the World Bank. The jurisdiction of this court is over individuals, as distinct from the International Court of Justice in The Hague, which settles disputes between countries. A key premise is that an indictment by the court of a citizen or a leader of a country would be a serious matter that would restrict the movement of those involved and in this way immediately have a signiﬁcant impact, even without arrest or prosecution.
Hundreds of citizen human rights and legal groups, such as the New York-based Human Rights Watch and the International Center for Human Rights and Democratic Development in Montreal, support the creation and establishment of the ICC. The failure of the USA to strongly support the ICC is a frustration to many of these groups. Eleanor and Franklin Roosevelt were prime movers in the adoption of the Universal Declaration of Human Rights, the founding document from which many treaties of this type have followed. Yet the USA has often lagged behind other nations in the ratiﬁcation of such treaties. For example, it took the USA fully 40 years to ratify the Genocide Convention. So while the USA played a major role in establishing the Rwandan and Balkan tribunals, it continues to maintain a reluctant stance with regard to the ICC.
Perhaps the strongest argument that can be made against American approval for the ICC is the control the USA might lose over the use of war crimes prosecutions as a bargaining chip in its negotiations over the complicated conﬂicts it seeks to control around the world. The perplexing complexity of such negotiations was revealed with all of its frustrations in the Balkan conﬂict. The Clinton administration sought a settlement that would avert a war over Kosovo through its negotiation of the Dayton Accords. At ﬁrst it seemed that the United Nations war crimes tribunal had assisted this process by indicting Radovan Karadzic and elevating the position of Slobodan Milosevic. However, Milosevic soon proved to be no better a partner for peace than Karadzic, and the Serbian violence was allowed to continue, resulting in his belated indictment as well. The lesson may simply be that mass killings and genocide will continue to occur until a system of deterrents comes into eﬀect through an institution such as the ICC.
It is of special note that two of America’s closest allies, Canada and Great Britain, have taken a particular interest in the Rwandan and Balkan tribunals and the ICC, often seeming to lend more durable support than the USA. The Canadian Foreign Minister, Lloyd Axworthy, built on the leadership role played by the Canadian jurist, Louise Arbour, during her term as Chief Prosecutor of the Rwandan and Balkan tribunals. Both have emphasized that armed conﬂicts in the world now increasingly involve struggles within rather than between nations, with parallel increases in civilian as opposed to military casualties. They argue this requires new ways of thinking about and dealing with issues of national sovereignty, so that eﬀorts to protect the latter do not become shields used by political and military leaders to cloak such crimes as murder, torture, rape, forced deportations, and expulsions. During the Kosovo crisis in particular, and the subsequent Milosevic indictment, the British government showed a ﬁrm resolve to use international criminal law to deal with intra-national crimes against humanity.
The Canadian-born and now British-based journalist Michael Ignatieﬀ, and the British lawyer and human rights activist Geoﬀrey Robertson, have been among the most eﬀective spokespersons for a permanent international criminal court. Ignatieﬀ’s (2000) book, Virtual War, makes a powerful argument for just how much the politics and technology of war have changed in recent decades. Ignatieﬀ argues that it is our failure of moral imagination to keep pace with these changes that inhibits the movement to a permanent international criminal court. Robertson’s (2000) book, Crimes Against Humanity, paints a historically and geographically sweeping picture of a world in which violent human rights abuses more often than not go unpunished. Nonetheless, Robertson argues that the Balkan and Rwandan tribunals signal a new ‘age of enforcement’ that is promising and already in progress. Many share Robertson’s hope that these tribunals will continue to evolve into a permanent ICC.
4. Research Priorities
Many important questions remain regarding war crimes tribunals. In particular, it will be important to learn how the international prosecution of war crimes is organized and to contrast this with the work of national justice systems, such as Rwanda’s, which may also prosecute and punish war criminals in large numbers. Answers to the following kinds of questions would be especially useful in expanding our knowledge base: How are the presumed worst oﬀenders and oﬀenses selected for international prosecution? How are prosecutors and judges selected for tribunal work? What are the patterns of conviction and punishment? What is the role of international public opinion in inﬂuencing the tribunals and the prospective permanent court? What are the eﬀects on the prosecutors and judges who become involved in this work? What are the prospects of a more permanent international criminal court and how might its work diﬀer from the current eﬀorts of the ad hoc tribunals? The importance of international war tribunal work seems obvious, and our knowledge of this work is unfortunately modest.
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