Running head: War Crimes and the International Community

War Crimes and the
International Community

Abhishek Gandhi
Professor Farber
Sociology 300
Summer 2012
Abstract

What are war crimes? Inhuman acts have been committed in all wars throughout human history. It has only been in the last 2 centuries that certain acts that were committed during war were found to be so reprehensible that they were labeled war crimes. Even thought these acts were committed during the "fog of war", they still merited punishment in a court of law in the eyes of the international community. When military and political leaders began to systematically target large civilian groups because of their nationality, ethnicity, gender or religion, then the international community began to see the necessity of holding political leaders accountable for their political decisions in a court of law, (Hauss, 2003). After World War II, when the atrocities of the Holocaust became well known, the victorious Allied powers decided to hold war crimes tribunals to punish the political and military leaders of Germany and Japan. The Nuremberg and Tokyo trials were the first of their kind in establishing international precedent for the prosecution of war crimes. Later war crimes that were committed in Yugoslavia and Rwanda resulted in the creation of separate tribunals by the United Nations to punish the leaders who perpetrated these acts. Attempts are being made to set up an International Criminal Court, but several powerful countries, including the United States, have refused to support its establishment.

Introduction

The history of war crimes tribunals only begins after World War II, when the Nuremberg and Tokyo tribunals were established. The Allied powers of World War I attempted to prosecute war crimes committed by the Axis powers, but no prosecutions by an international tribunal ever took place. A commission established after World War I in 1919 by the victorious powers sought the prosecution of enemy nationals, even leaders, guilty of offences against "the laws and customs of war or the laws of humanity," (Cassette, 2000). At the end of the war, both the Treaty of Sèvres (between the Allied powers and Turkey) and the Treaty of Versailles (the Allied powers and Germany) provided for the prosecution of central power war criminals (i.e. Turkish and German), including Kaiser Wilhelm II, before international tribunals. Although the idea of prosecutions by an international tribunal gained hold, no such prosecutions actually ever occurred. Kaiser Wilhelm was given sanctuary in the Netherlands, and only a few prosecutions of German war criminals by the German Supreme Court took place.
War Crimes and the International Community After World War II, the total defeat of the Axis powers created a historic opportunity for the establishment of the first international body for the prosecution of war criminals. Shocked by the extent and horrors of the atrocities committed by the Nazis and the Japanese and empowered by their status as victor nations, the Allies signed an agreement creating the International Military Tribunal (IMT) for the prosecution of major war criminals of the European Axis. This was soon followed in Japan by the establishment of a tribunal for the prosecution of high-ranking Japanese accused of war crimes. These tribunals were given the authority by the Allied powers to prosecute German and Japanese leaders for "crimes against the peace" (the crime of waging an aggressive war), "crimes against humanity" and "war crimes" (of which the existence was debatable in international law at the time), (Beasley, 2009). The tribunals were not concerned with the prosecution of each and every enemy national responsible for committing war crimes, but only the major players — people responsible for planning and instigating aggressive war and atrocities committed during the war. Although they adhered to certain minimum basic principles of justice, they were subsequently criticized for failing to live up to prevailing standards of criminal justice. For example, rather than being international tribunals, they were attacked for being ‘victors’ tribunals’ — examples of a few victorious states getting together and collectively exercising their powers and jurisdiction. Importantly, the tribunals were restricted to the prosecution of war criminals belonging to or representing the enemy powers for crimes committed by them during the war. They had no authority to prosecute war crimes committed by any members of the Allied forces. For these reasons, they were criticized as constituting little more than ‘victors’ justice’. This was particularly the case with the Tokyo tribunal. Many criticized the hypocrisy of prosecuting Japanese leaders for war crimes, when the Americans were guilty of the nuclear bombings of Hiroshima and Nagasaki. In 1945, at the time of the establishment of the Nuremberg and Tokyo tribunals, there was very little precedent or law providing for the criminalization of war crimes or the act of waging aggressive war. The whole concept of ‘crimes against humanity’ was largely unknown. Though international law at the time had outlawed aggressive war to an extent and did attempt to regulate conduct during war (Dyer, 2009), none of these treaties doing so made provision for the criminal prosecution and punishment of individuals guilty of breaches. The Nuremberg and Tokyo charters were effectively the first international instruments to do so. Although the Hague conventions and the early Geneva conventions outlawed certain conduct during war, they did not specifically criminalize such conduct or provide for criminal prosecutions and punishment, (Dyer, 2009). Prior to the Nuremberg and Tokyo tribunals there was also very little precedent for the idea of crimes against humanity — crimes which, because of their enormity, are not only crimes against the specific societies where they were perpetrated, but crimes against the whole international community, (Cassette, 2000). Their inclusion in the Nuremberg and Tokyo charters was therefore an innovation. Although much criticized, the Nuremberg and Tokyo tribunals were of fundamental importance to the development of international criminal law. In particular, they played a significant role in entrenching the concept of individual criminal responsibility in international law. For the first time in modern history, people (in particular high-ranking leaders) were held accountable for their actions during war, (Cassette, 2000). In so doing, these tribunals entrenched the idea that individuals, even leaders of state, could individually be held criminally responsible under international law for their actions. No longer was international law simply concerned with the actions of states, but it was now paying attention to the acts of individuals and was prepared to hold them accountable for their acts. As a result of the Nuremberg and Tokyo precedents, several treaties or laws expressly providing for the prosecution of persons guilty of committing ‘international’ crimes, including war crimes, were adopted in subsequent decades. The first such treaty was the Genocide Convention of 1948, (Dyer, 2009). The concept of genocide — the extermination or intended extermination of a whole population (the worst form of crime against humanity) — was a new legal concept conceived in response to Nazi German atrocities. The Convention provides that signatory states have an obligation to punish offenders. Offenders are supposed to be tried either by the state where the crime of genocide was committed, or by an international criminal court established to prosecute genocide. Although a draft statute for an international criminal court was produced in 1951, due to political reasons no such international court was ever established, (Cassette, 2000). The Genocide Convention was followed by the Geneva conventions of 1949. These conventions categorize certain serious war crimes as grave breaches, and place an obligation on states parties to criminalize and provide for the prosecution of such grave breaches. States parties have an obligation, in terms of these conventions, to prosecute and punish grave breaches committed not only by their own nationals, but also those committed by the nationals of any other state party. They were thus the first treaties to invoke what is known as ‘universal jurisdiction’ or international jurisdiction — jurisdiction in terms of which all states have the authority to prosecute certain crimes, regardless of whether they were committed on their own territory or by their own nationals, (Dyer, 2009). Following the charters and judgments of the Nuremberg and Tokyo tribunals, crimes against humanity became well and truly entrenched in international law. In accordance with the judgments of these tribunals (and later international law instruments), crimes against humanity are now commonly accepted as giving rise to universal or international jurisdiction. The convention made provision for prosecution either by a signatory state in its own domestic courts, or by an international penal tribunal. Finally, the Geneva protocols were adopted in 1977. They extend protection to victims of non-international armed conflicts, and provide for universal jurisdiction over grave breaches committed in internal armed conflicts, (Budge, 2009). Thus, by 1977, the notion of international crimes over which any state has jurisdiction and the authority to prosecute, either in its own domestic courts, or under the auspices of an international tribunal, was clearly established. While the concept of international criminal law and the authority of states to prosecute war crimes had undergone substantial development since the end of World War II, there were still very few actual prosecutions. A few states, including Israel, Canada, Germany, the United Kingdom and Australia, adopted municipal legislation, which empowers their courts to prosecute and punish war crimes, even if committed outside of their territory. A few prosecutions have taken place as a consequence of this legislation. Perhaps the most famous and controversial post-World War II national prosecution of a war criminal in terms of such legislation, was the Eichmann trial, (Chambers, 2000). Eichmann, who had been the administrator in charge of the extermination of hundreds of thousands of Jews in Europe, was charged and convicted in the 1960s by the Israeli government for genocide, war crimes, and crimes against humanity committed during World War II. Meanwhile, attempts to establish an international criminal court, which had begun in 1951, were suspended, largely as a result of the Cold War. States were unwilling to relinquish jealously guarded state sovereignty to an international court. Although an international framework of laws for criminalizing war crimes was being shaped, there was no mechanism to enforce them. It took the end of the Cold War and the power of the international media to galvanize the international community into further action. In 1993, after widespread international media coverage of the atrocities committed in the war in the former Yugoslavia, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY). Soon, in the aftermath of the 1994 genocide in Rwanda, the International Criminal Tribunal for Rwanda (ICTR) was also established by the Security Council. These tribunals differ from the Nuremberg and Tokyo tribunals in a number of important respects. They were not instituted by individual states through an international treaty or charter. Instead, they were established by the UN Security Council in accordance with binding Security Council resolutions. They were thus established by means of a collective decision of an international organization. In this sense, they constitute the first real ‘international criminal tribunals’ ever. At the time when the ICTY was established, the war was still raging in the former Yugoslavia. It was hoped by those who promoted the establishment of the ICTY that by bringing to justice war criminals responsible for perpetrating the policies of ethnic cleansing which characterized the war; the continuing violence in the former Yugoslavia would be diffused — enabling the negotiation of peace. In the context of Rwanda, it was hoped that the prosecution of those responsible for planning and implementing the 1994 genocide would help to prevent the outbreak of future cycles of violence, (Hauss, 2003). As long as the perpetrators of the genocide remained free and unpunished, a climate of fear, hatred and the desire for revenge would continue, ultimately resulting in further violence as people took the law into their own hands. These two international criminal tribunals were therefore largely established to promote peacemaking and peace building: peacemaking in the context of the former Yugoslavia, in that the establishment of the ICTY was an attempt to bring or restore peace; and peace building in the context of Rwanda, in that the establishment of the ICTR was an attempt to consolidate and build upon a fragile peace (achieved after the victory by the Tutsi Rwandan Patriotic Front). Like the Nuremberg and Tokyo tribunals, both the ICTY and the ICTR only have limited jurisdiction to prosecute very specific crimes. The ICTY has jurisdiction over all "serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991" — including genocide, crimes against humanity and war crimes. The ICTR has jurisdiction over "serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994" — including genocide, crimes against humanity and war crimes. For this reason, both these UN war crimes tribunals are known as ad hoc tribunals. They do not have generalized powers to prosecute all war crimes in any situation or context. Because they were established by the Security Council as measures to establish and maintain peace, they can be dissolved by the Security Council at any stage when it determines that they are no longer necessary for the maintenance of peace in their respective regions. They therefore have limited powers and a limited lifespan, (Cassette, 2000). The ad hoc nature of the tribunals has exposed them to severe criticism. Many have questioned why the international community saw fit to go to the expense and trouble of prosecuting violations committed in these contexts, but not in many other instances of gross violations of humanitarian law. Such selective enforcement of international law and justice is unfair both to surviving victims and to perpetrators. While these criticisms are valid, it would be hard to deny that the establishment of special tribunals to deal with specific atrocities committed in these two contexts was better than the international community once again ignoring widespread atrocities. Initially, both tribunals (the Rwanda tribunal, in particular) struggled to establish themselves. They were hampered by a lack of resources, infrastructure and state co-operation. This severely impacted upon their effectiveness. Although both tribunals began to issue indictments reasonably quickly, it took a long time before they were able to get custody over a sizeable number of those accused. It is not up to the tribunals to secure the arrest of high-level accused. They do not have the mechanism or powers to secure arrests themselves. Rather, it is up to individual states and assisting forces to do so. The situation has improved with both tribunals having a number of accused in custody, including several high-level accused. Several convictions have also been made. They are therefore both fully functional judicial institutions. It is therefore fair to say that, notwithstanding their shortcomings, much has been achieved by these ad hoc tribunals. While some may debate their contribution to peace, there is no doubt that they have established the beginnings of a proper international criminal justice enforcement system. Not only has substantive and procedural international criminal law been significantly advanced and developed by them, but they have proved that international criminal prosecutions are viable and practical. Since their establishment, it has become increasingly difficult for people accused of gross human rights violations to escape with impunity. It is also ultimately because of the work of the ad hoc tribunals that the creation of a permanent international criminal court has become a greater possibility. In July 1998, the Rome Statute of the International Criminal Court was adopted. After decades of debate over the issue, this statute finally makes provision for the establishment of a permanent international criminal court. If and when it comes into force, the International Criminal Court will be a permanent international institution, which will have powers to prosecute individuals for genocide, crimes against humanity and war crimes. This court will effectively have jurisdiction to prosecute war crimes committed in states or by nationals of states signatory to the statute. It will thus not be limited to a particular situation or territory, although the extent of its jurisdiction will obviously depend upon the number of states which become party to the statute. Whereas the ad hoc tribunals exercise primacy over relevant domestic prosecutions in any state, the court will only be entitled to exercise jurisdiction where the relevant national state is either unwilling to or unable to prosecute. It is therefore not intended to replace national judicial processes, but rather to complement them. In accordance with the statute, all states parties will have an obligation to co-operate with the court, including arresting indicted persons. This is similar to the obligations that all states have in terms of the ICTY and ICTR. However, the difference is that this obligation is not imposed by the Security Council, but is simply a treaty obligation. Any duty to co-operate and arrest is also not imposed in terms of the UN Charter. It is limited to states parties and is not in itself enforceable by the Security Council. As with the ICTY and ICTR, because there is no permanent international police force, the enforcement of the orders of the permanent criminal court will largely depend upon individual state co-operation. The effectiveness of the court will therefore once again depend upon political will.
Conclusion
Developments in international law subsequent to World War II have clearly established the concept of international criminal jurisdiction — whereby certain crimes are recognized as being international crimes, giving rise to international individual criminal responsibility. All states are authorized and arguably obliged in certain circumstances to provide for the prosecution of such crimes — either by their own domestic courts, or through the establishment and participation in international criminal tribunals. This international criminal jurisdiction has resulted in the establishment of the two ad hoc tribunals for the former Yugoslavia and Rwanda, and has finally crystallized into the potential establishment of a permanent international criminal court, which will have wide-ranging powers to indict and prosecute international war criminals. As the precedents of the tribunals for the former Yugoslavia and Rwanda show, the effectiveness of an international criminal court depends upon state co-operation, both at the investigation stage and in effecting arrests. The growing momentum of these ad hoc tribunals, however, suggests an increasing commitment among the international community to implement international justice. The recent establishment of a special court for Sierra Leone supports this observation, and augurs well for the prospect of a permanent international criminal court indeed becoming a reality.

References
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