War crimes

Graham graham at SPAMunacode.demon.co.uk
Tue Jun 27 15:59:45 MDT 2000

Whose war is it anyway?
The Independent, 27 June 2000
By Jon Holbrook
The hunting of war criminals has become a passion for the human rights movement.
But are international tribunals the best way to secure peace and justice?
Nato snatch squads are proving to be an effective weapon in the battle to make
war criminals answer for their crimes. Over the weekend the SAS seized another
Bosnian Serb, General Dusko Sikirica, 36, who was in charge of a PoW camp where
140 Croats and Muslims were machine-gunned to death. He will be now put on trial
at The Hague, where he faces charges of genocide. The most notorious criminal
from the Bosnian war, Arkan, was assassinated before he could be brought to
The hunting and punishment of war criminals has become a passion of the human
rights movement and a near obsession of many governments. The International
Criminal Tribunal for Yugoslavia was set up in 1993 and its sibling the
International Criminal Tribunal for Rwanda followed a year later. In July 1998,
125 states voted for the establishment of a permanent International Criminal
Then Senator Pinochet's bad back caused him to make one trip too many to his
Harley Street doctor and the House of Lords ruled that those accused of
practising torture could not claim immunity from prosecution by a foreign state.
The human rights lawyer Geoffrey Robertson, in his book Crimes Against Humanity
- The Struggle For Global Justice, expresses forcefully the values of the human
rights movement. Robertson is well qualified in this area, having appeared as
counsel in many landmark cases and having conducted missions to South Africa and
Vietnam on behalf of Amnesty International.
Robertson's argument is that some crimes are so evil that they concern us all.
They offend our common humanity. If nothing is done humanity is devalued. The
international community is obliged to act and the full force of the law should
be brought to bear on miscreant statesmen. Where states are unwilling to act
against their own human rights abusers, foreign states or international bodies
are obliged to step into the breach. Amnesties and diplomacy are out;
prosecutions and direct justice are in.
>From the perspective of a lawyer, Robertson's arguments are understandable. If
a man commits murder we track him down, prosecute him and sentence him when
found guilty. We have institutions in place to ensure that this process is
effective. Criminal justice deters and corrects evil behaviour and it assuages
the anger felt by the victims of criminal behaviour and their families and
friends. Hallmarks of criminal justice are its objectivity, universality and
punitive nature. Criminal justice does not yield to political expediency.
Robertson, and much of today's human rights movement, seeks to transfer these
ideals to the international stage. Yet in the process the key issue of consent
is being ignored. A nation's criminal justice system requires the consent of the
population. A criminal law exists precisely because it marks a boundary beyond
which behaviour becomes unacceptable to the population.
But the war crimes tribunal that has been set up in The Hague for the former
Yugoslavia lacks the consent of the people of that region. Croats, Serbs and
Muslims do not agree on what constitutes a war crime in the context of the civil
war in Bosnia. They each see themselves as having engaged in a just war that has
been fought bitterly and savagely by all protagonists. In such circumstances,
the passing of criminal sentences on those indicted by the Hague court is seen
as an imposition by outside forces who understand little about the complex
issues governing events in the Balkans.
The criminal law is not being imposed as an expression of the will of the
people; it is an expression of the will of the United Nations. If it had been
otherwise the people of Bosnia could have set up their own war crimes tribunal
and would not have needed the UN to create an institution 650 miles away.
Criminal justice cannot operate if it is unable to control a desire for revenge.
The bereaved family of a victim may desire revenge but the criminal justice
system strives to keep these passions in check. What happens when these passions
take over the criminal courts has been demonstrated in Rwanda. When the Rwandese
Patriotic Front took control in July 1994 its forces and government ministers
were eager for revenge. The Rwandese government wasted no time in rounding up
suspected war criminals so that by 1995, within one year of the Security Council
resolution that called for a war crimes tribunal, some 60,000 Hutu suspects had
been placed in prison. By 1998, the figure had doubled. A process such as this
brings the criminal courts into disrepute by turning them into instruments of
revenge rather than of justice. In Rwanda the criminal courts and the
international criminal tribunal in Arusha are being used to settle scores on
such a scale that it bodes ill for the future.
Robertson draws inspiration from the fact that he was born on the day of
judgment at Nuremberg (30 September 1946). He sees his arguments for
international justice as reviving the Nuremberg precedent that had lain in
abeyance since 1948.
Indeed, literature on human rights abounds with references to Nuremberg. Yet
much of it ignores the specific circumstances that gave rise to the trials:
crimes in a league of their own; unconditional surrender by the vanquished; and
a public that knew little of the atrocities that had been committed. All these
factors meant that the Germans consented to the authority of Nuremberg. In fact,
the tribunal was not imposed since it comprised the Allied powers which then
constituted the state of Germany. Moreover, the people of Germany were eager for
justice and the tribunal judgments served to heal wounds and to assist in the
de-Nazification of Germany. Since the end of the Second World War, the
combination of those factors has not been repeated in Bosnia, Rwanda or anywhere
The simple, if unpalatable, truth is that the criminal law cannot create a
peace. If there is a peace to be kept then a war crimes tribunal may, depending
on the circumstances, play a role in healing wounds or exposing the crimes of
the vanquished (no victorious army has ever been prepared to expose its own war
crimes). But in most circumstances, other strategies will have a better chance
of securing peace. Amnesties (Spain after Franco, Chile after Pinochet), truth
and reconciliation commissions (South Africa after apartheid) or even war (for
if they are allowed to run their course wars usually herald a peace) are all
tried and tested ways of facilitating peace that have better track records than
war crimes tribunals.
Each of these strategies may be unpalatable to some lawyers but they are
strategies that take notice of political reality. They recognise that laws
cannot eradicate evil. If it were otherwise we could ask lawyers to draft a
Crimes Against Humanity statute and we could ask judges to apply those laws
even-handedly across the planet. But in the real world human conflicts are
motivated by ideas and passions that are easier to denounce than they are to
resolve. If we get it wrong by imposing simple notions of universal justice, the
humanitarian disaster zones that now exist in Bosnia and Rwanda will multiply
across the globe.

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