War Crimes:An End In Sight?
An End in Sight?
Joanne M. Dufour
Will we have a world guided by the rule of law? Will a time come when crimes of war will be punished in a court of law? When acts of terrorism can be handled by an international tribunal rather than with a military response? In the lifetime of our students, these things might happen. This article presents background information and resources for a class discussion or study on war crimes and developments in creating the International Criminal Court.
Let us begin with some definitions. The term war crimes can produce horrific images for some students: concentration camps, ethnic cleansing, execution of prisoners, rape, and the bombardment of cities. In many ways, these images match the legal definitions of the term, but international law draws lines that do not always correspond to our own sense of heinous kinds of behavior.
First, what is international law? It is a body of conventions, treaties, and standards that play a central role in promoting economic and social developments, as well as international peace and security, among the nations of the world. Many treaties brought about by the United Nations (UN) form the basis of the law governing relations among nations, but treaties and agreements that states have made with other states also fall into this category.
War crimes are those violations of the laws of waror international humanitarian lawthat incur individual criminal responsibility.1 Although limitations on the conduct of armed conflict date back at least to China in the sixth century BC, by the time of World War I, states had accepted that certain violations of the laws of warmany of which had been codified in the Hague Conventions of 1899 and 1907were crimes. War crimes were further codified in the Geneva Conventions, adopted, and expanded throughout the twentieth century.
Nuremberg War Crimes Tribunal
The trials held in Nuremberg, Germany, at the end of World War II created an important precedent for the international treatment of war crimes. The prosecution of Nazi atrocities before the International Military Tribunal, and the subsequent Nuremberg tribunals, established several key principles that continue to influence international conduct. Among these are the notions that
the human rights of individuals and groups are a matter of international concern;
the international communitys interest in preventing or punishing offenses against humanity committed within a state can supersede any concept of national sovereignty;
not just states but also individuals can be held accountable under international law for their role in genocide and other atrocities; and
following orders is no defense of such accountability.2
More than fifty years later, Nuremberg is significant because it was the first prosecution for the systematic persecution and barbarity against a states own nationals that we have come to call crimes against humanity. It set the precedent for the international criminalization of atrocities against civilians, wherever and whenever they occur. Before Nuremberg, it was a cardinal principle of international law that a states treatment of its own nationals or citizens was not a matter of international concern. The international legal universe of 1945 was a state-centered one, in which international law meant law between and among states, alone and exclusively. Nuremberg marks the beginning of the great movement of our times to protect individuals against oppression by their own governmentsa movement that has come to fruition in the development of international human rights law and of international humanitarian law and in the blending of the two in an emergent international criminal law.3
The International Military Tribunal at Nuremberg, made up of representatives of the four victorious allied powers, introduced the novel concept of individual legal accountability before an international body for atrocities committed in wartime. Not the German government, but individual Germanstwenty-one of the most important Nazi leaders, such as Goering, Ribbentrop, and Hess, plus one in absentiastood trial for these atrocities. Nineteen were convicted of war crimes, crimes against humanity, or crimes against peace; twelve were sentenced to death; and the world had a new catchword: Nuremberg.4 But the Nuremberg trials were not show trials with predetermined outcomes, a usual feature of victors justice. In the International Military Tribunal, the defenses case took longer to present than the prosecutions, and three defendants and half the indicted organizations were acquitted. Subsequent U.S. military tribunals in Nuremberg brought cases against 182 defendants, including members of the roaming death squads (the Einsatzgruppen), doctors who had experimented on concentration camp inmates, and Nazi judges and industrialists.5 Thousands of follow-up trials followed Nurembergs guiding view of individual responsibility for persecution. Further war-related national tribunals include those convened by Germany (even to this day), Holland, and France.6
Justice Robert Jackson, the U.S. chief prosecutor, spoke of the significance of the event in his opening remarks: That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.7
Tokyo War Crimes Tribunal
The punishment of war criminals was also part of the general process of the demilitarization of Japan. At the Tokyo War Crimes Tribunal, held between May 1946 and November 1948 under the newly created Military Tribunal for the Far East (which involved all eleven victor nations), twenty-five men were tried for major (Class A) crimes, such as having plotted and brought about the war. In what has sometimes been described as victors justice, all were found guilty in varying degrees. Seven, including General Tojo and former Prime Minister Hirota (the only civilian), were sentenced to death and subsequently hanged. A number of other trials were held elsewhere, such as Singapore, the Philippines, and Hong Kong. In these local trials, more than five thousand Japanese were found guilty of more specific crimes (Classes B and C), such as gross cruelty towards prisoners of war, and some nine hundred were executed.8
The Yamashita case from the Tokyo trials is an example of the more traditional postwar military justice. The conquered had no choice but to submit to the judicial fiat of the victors. Tomoyuki Yamashita was a Japanese general in the Philippines who was sentenced to death for atrocities committed by those under him.
In MacArthurs eyes, Yamashita had violated old and sacred norms: The soldier, be he friend or foe, is charged with the protection of the weak and unarmed. It is the very essence and reason for his being. When he violates his sacred trust, he not only profanes the entire cult but threatens the very fabric of international society.9
The central difficulty of these trials, however, was that the governing law was not applied equally. The standards of guilt were applied only to the losers. For example, the Soviets, who sat on the tribunal, were not forced to answer for the Soviet aggression against Poland, the Baltic states, or Finland. Neither were the United Kingdom and the United States required to face the questions raised, for example, by the bombings of Dresden and Hiroshima.10
Another problem is related to gender issues. The major war criminals of the European and Asian Axis stood trial for crimes against the peace, war crimes, and crimes against humanity. Rape was not named as a war crime or as a crime against humanity in the Nuremberg Trials or the Tokyo Charter. The French and Russian prosecutors did submit evidence, however, of sexual assaults committed during the German invasion of Russia and the occupation of France under the Vichy regime, as well as sexual violence inflicted on concentration camp inmates. The prosecution of Japanese defendants in Tokyo afforded greater attention to rape, although the most egregious crime, involving the so-called comfort women, was completely ignored by the prosecutor and the judges.
Nevertheless, evidence about the occupation of Nanking, Borneo, Manila, and other parts of China, where Japanese soldiers raped nurses, prisoners, and a large number of other female inhabitants, was presented. The defendants were convicted for acts of rape committed by their subordinates under the doctrine of command responsibility. Rape was characterized as a violation of the laws and customs of war and a crime against humanity, a form of inhumane treatment, ill treatment, and failure to respect family honor and rights.11
The outrage that these trials caused immediately brought forth the Convention on Genocide in the United Nations. The UN General Assembly unanimously accepted the principles of Nuremberg: that aggressive war is a crime, that there are crimes against humanity, that superior orders is not a good defense, and that even the head of a state is responsible under the law. The UN passed many resolutions and conventions advancing international law, but implementation was lacking. Although isolated attempts to hold individuals accountable for violations of international humanitarian law exist, Nurembergs precedent of holding individuals accountable within international jurisdiction has rarely been followed.
The Geneva Conventions of 1949 codified aspects of International Humanitarian Law and include a list of war crimes or grave breaches of the conventions. Each of the four Geneva Conventions (wounded and sick on land, wounded and sick at sea, prisoners of war, and civilians) contains its own list of grave breaches of the conventions. The list includes the following:
Torture or inhuman treatment (including medical experiments)
The willful causing of great suffering or serious injury to body or health
Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly
The compelling of a prisoner of war or civilian to serve in the forces of the hostile power
The willful deprivation of a prisoner of war or protected civilian of the rights to a fair and regular trial
Unlawful deportation or transfer of a protected civilian
Unlawful confinement of a protected civilian
The taking of hostages
An Additional Protocol of 1977 expanded the protections of the Geneva Conventions for international conflicts to include grave breaches such as the following:
Certain medical experimentation
Making civilians and nondefended localities the object of attack
The perfidious use of the Red Cross or Red Crescent emblem
The transfer of an occupying owner of parts of its population to occupied territory
Unjustifiable delays in repatriation of POWs
Attack on historic monuments
The deprivation of protected persons of a fair trial
Under these conventions, states must prosecute persons accused of grave breaches or hand them over to a state willing to prosecute.12
Unpunished War Crimes
Over the remainder of the century, however, international crimes flourished. Korea, Czechoslovakia, Hungary, Vietnam, Cambodia, Afghanistan, Grenada, Nicaragua, Cuba, Panama, Iran, Iraq, and other states in the Middle East and other parts of the world were accused of aggression. Millions of innocent people were killed in conflicts, which frequently violated established laws of war with acts such as the illegal use of poison gas, genocide, terrorism, and similar atrocities. Idi Amin of Uganda and Pol Pot of Kampuchea were denounced, but never tried, for murdering millions of their own people. Despite Nuremberg, all of these crimes went untried and unpunishedto the everlasting shame of the international legal community. No legal action was ever taken to put aggressor Saddam Hussein on trial after he invaded Kuwait. Little wonder atrocities continued.13
With the end of the Cold War, however, in 1992, a vicious armed conflict that engendered killings, the detention of civilians, forced removals of the population, and massive rapes accompanied the dissolution of the former Republic of Yugoslavia. United Nations Security Council resolutions demanded a halt to atrocities and condemned the abominable objective of ethnic cleansing. Invoking Chapter VII of the UN Charter, the UN Security Council members voted to create an ad hoc tribunal to adjudicate serious violations of international humanitarian law. Within sixty days, the council accepted a governing statute for the tribunal. This is the first time that a functional international criminal tribunal has granted rape equal legal status as a crime against humanity.14
This International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia has its seat in the Hague, the Netherlands, the site of the International Court of Justice (ICJ, commonly referred to as the World Court). It comprises eleven judges from as many countries, divided into two trial chambers and an appellate chamber. It does not have an official police arm, however, to apprehend all of those indicted. Some feel that is why Slobadan Milosevic remained free until the new government of Yugoslavia agreed to turn him over to the tribunal on June 21, 2001, following his arrest in April by Serbian police on charges of corruption and abuse of power while president.
The Yugoslavia Tribunal is in several ways an improvement of the Nuremberg model. Its rules of procedure incorporate positive developments with respect to the rights of criminal defendants under international law. Unlike the Nuremberg Trials, which many perceived as the prosecution of World World IIs losing parties by the victors, the Yugoslavia Tribunal is truly an international exercise, and the countries that supply its judges, prosecutors, and staff are not parties to the conflict. In addition, the tribunal is committed to the investigation and prosecution of war crimes committed by persons from each side in the war.15
One of the most important rulings on war crimes since Nuremberg that was rendered by the Yugoslav Tribunal was that some atrocities committed in internal conflicts are universal crimescrimes for which an international court can summon individuals to account. Some breaches of law governing internal conflicts are international crimes, so certain violations of humanitarian law committed in internal armed conflicts can, therefore, be punished by any state to which the perpetrator may travel.16 (We can see an example in charges brought against ex-president Pinochet from Chile by a Spanish court.)
The organizers of the genocide in Rwanda in 1994 engineered a killing campaign remarkable not just for its horror but also for the scale and speed of the slaughter. They mobilized the killers through three separate but connected hierarchies: the armed forces, the political parties, and the administration. In most cases, particularly those of large-scale massacres, soldiers, national policemen (a force integrated into the Rwandan Armed Forces), and communal policemen, initiated and directed the killings. Militiasarmed irregulars recruited and trained through two extremist political partiesbacked up the soldiers and police and also launched attacks on their own. Ordinary citizens by the thousands joined in the genocide, under the order of local government officials.
For decades, government administration had been intense in Rwanda, with local officials and agents supervising units as small as groups of ten to twenty households. In conjunction with soldiers and political party leaders, these government agents led Hutu under their authority in slaughtering their Tutsi neighbors. When the international community stepped in, it was too late to stop the massive slaughter. An international tribunal was established in 1995, however, to bring the guilty to court and to try them under international humanitarian law and under the provisions of the Genocide Convention. This was no easy process as nearly 1 percent of the population100,000 peoplewere thought to have been involved in the slaughter.
Despite the indisputable atrociousness of the crimes and the emotions evoked in the international community, the judges have examined the facts adduced in a most dispassionate manner, bearing in mind that the accused is presumed innocent.17 With these words, the International Criminal Tribunal for Rwanda handed down the first-ever judgment by an international court for the crime of genocide, declaring Jean-Paul Akayesu guilty of genocide and crimes against humanity. The date was September 2, 1999, and the trial site was Arusha, Tanzania. Akayesu, who was mayor of the Taba commune in Central Rwanda, was held responsible for the deaths of around 2,000 people in 1994. In that year, more than 800,000 people, mostly members of Rwandas minority Tutsi people, were slaughtered in less than three months. For progress on the tribunal set up by the United Nations in 1995 to try those responsible for this genocide,18 please check the resources at the end of the article.
International Criminal Court
Many people think that the International Court of Justice has the power to try perpetrators of international human rights and humanitarian law (the law of war) as individuals. But it does not. The ICJ has jurisdiction only over complaints by statesand only in limited respects. Because there is no world criminal court at present, the UN Security Council created the ad hoc tribunals for the former Yugoslavia and Rwanda to provide a mechanism of accountability for these recent, terrible examples of genocide and gross violations of human rights and humanitarian law. These tribunals illustrate the importance of a permanent international justice mechanism, as well as the problems of carrying out justice on an ad hoc basis.
The question of an international criminal courtone to which individuals could be broughtdid not come before the UN General Assembly until 1989, at a special session on the subject of drugs. Trinidad and Tobago suggested the establishment of a specialized international criminal court for drug-related offenses. In 1993, at the request of the General Assembly, the International Law Commission produced a detailed draft statute for such a court, which it further refined in 1994. Between 1996 and 1998, a preparatory committee established by the General Assembly conducted deliberations on the draft charter, with delegations from nearly one hundred countries participating. A number of important issues needed to be ironed outfor example, the role of the UN Security Council as a gatekeeper for the referral of cases to the court; possible jurisdiction over crimes such as terrorism, aggression, and drug-trafficking; the authority of the prosecutor to initiate investigations; and the questions of extradition and of procedure. The committee examined how to define fair trial standards in a way that reflected the worlds various legal systems. There was extensive debate over what the courts relationship with the UN should be and how it should be financed. Among the one hundred countries participating in the discussion, however, a broad consensus emerged that the new court would have jurisdiction over individuals for the core international crimes of genocide, war crimes, and crimes against humanity. The draft was presented to the world community at a plenipotentiary conference held in Rome, Italy, in 1998.
The Rome Conference
The UN diplomatic conference to hammer out the statute of an international criminal court took place from June 15 to July 17, 1998, in Rome. Delegates from 160 countries were present, joined by representatives of more than six hundred nongovernmental organizations as diverse as the Lawyers Committee for Human Rights, the Womens Caucus for Gender Justice in the International Criminal Court (ICC), and the American Bar Association, which mounted an unprecedented lobby campaign on behalf of a strong court. After five weeks of intense debate, 120 countries voted for the final draft of the courts statute. Seven voted against, including the United States, and twenty-one abstained.
The ICC will be a permanent court that will investigate and bring to justice individuals who commit the most serious violations of international humanitarian law, namely, war crimes, crimes against humanity, and genocide. Unlike the International Court of Justice in the Hague, whose jurisdiction is restricted to the states, the ICC will have the capacity to indict individuals; and unlike the Rwandan and Yugoslavian War Crimes Tribunals, its jurisdiction will not be chronologically or geographically limited (although once the ICC takes effect, it will not be retroactive).
What crimes will the new court deal with?
The ICC will deal with the most serious crimes committed by individuals: genocide, crimes against humanity, and war crimes.
Genocide covers those specifically listed prohibited acts (e.g., killing, causing serious harm) committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.
Crimes against humanity cover those specifically listed prohibited acts committed as part of a widespread or systematic attack directed against any civilian population. Such acts include murder, extermination, rape, sexual slavery, the enforced disappearance of persons, and the crime of apartheid. (Genocide and crimes against humanity are punishable regardless of whether they are committed in times of peace or war.)
War crimes cover grave breaches of the Geneva Conventions of 1949 and other serious violations, as listed in the statute, committed on a large scale in international or noninternational armed conflicts.19
Why did some countries vote against the statute?
Three out of the seven countries that voted against the statute stated their reasons. China thought that the power given to the pre-trial chamber to check the prosecutors initiative was not sufficient, and that the adoption of the statute should have been by consensus, not by a vote. The United States objected to the concept of jurisdiction and its application over nonstate parties (countries that did not ratify the court). It also stated that the statute must recognize the role of the UN Security Council in determining an act of aggression. Israel said that it failed to comprehend why the action of transferring populations into an occupied territory was included in the list of war crimes.
What has been the response by the U.S. government?
At the end of his term in office, President Bill Clinton signed the Rome Statute, noting some reservations (see www.state.gov/www/global). The Bush administration has opposed the court. Conservative members of the U.S. Congress have supported the American Service Members Protection Act, which is aimed at exempting Americans from the ICC. They have also proposed cutting off U.S. military assistance to any non-NATO country that ratified the ICC treaty and prohibiting U.S. troops from serving in any UN peacekeeping forces unless the UN Security Council gives American soldiers immunity from ICC jurisdiction. The act would also authorize the president to use military force to free U.S. or allied service members held by the court. The Bush administration is considering how to unsign the treaty, which it also views as threatening to U.S. military personnel. But as it works with other nations to pursue cooperation around terrorism, the administration will need to be sensitive to allies who are already angered by its aversion to treaties on the environment, nuclear arms, and small arms.
What role will the UN Security Council have in the courts work?
The work of the UN Security Council and the ICC will complement each other. The courts statute recognizes the role of the UN Security Council in the maintenance of international peace and security under the UN Charter by accepting that the UN Security Council, acting under Chapter VII of the UN Charter, may refer a situation to the court when one or more of the crimes covered by the statute appears to have been committed. This would provide a basis for the prosecutor to initiate an investigation.
How independent will the prosecutor be?
An independent prosecutor, with the power to initiate investigations when sufficient evidence points to serious violations, was widely supported during negotiations at the Rome Conference. Although the prosecutor may initiate such investigations, detailed provisions are included in the statute to ensure proper checks and balance with respect to this power. In the first place, the prosecutor must defer to states willing and able to pursue their own investigation. Before initiating an investigation, the prosecutor is required to submit all supporting materials collected and to obtain permission from the pre-trial chamber, composed of three judges. The suspect and the states concerned also have the right to challenge, at the investigative stage, action taken by the prosecutor. States and the accused can also challenge the jurisdiction of the court or the admissibility of the case at the trial stage. These measures provide ample opportunity to ensure that the case is substantial and deserves investigation and prosecution by the court.
What about crimes of aggression, terrorism, and drug trafficking?
There was wide support in Rome for including aggression as a crime, but insufficient time to agree on a precise definition. As a result, the statute provides that crimes of aggression can be prosecuted by the court when the states parties reach agreement on the definition at a review conference. Because the statute states that any agreement must be consistent with the UN Charter, it would require prior determination by the UN Security Council of an act of aggression.
Although there was considerable interest in also including terrorism and drug crimes in the courts mandate, countries could not agree in Rome on a definition of terrorism. Some experts agree, however, that acts such as the criminal attacks on the World Trade Center and the Pentagon on September 11, 2001, were crimes against humanity. (For UN work on terrorism and international conventions developed to combat terrorism, search for the activities of the Terrorism Prevention Branch, an arm of the UN Office for Drug Control and Crime Prevention in Vienna.)
Whats the status of the Rome Statute?
As of September 20, 2001, the Rome Statute has been ratified by 38 countries and signed by 139 (see www.iccnow.org). The court will come into existence once 60 countries ratify the statute. Senegal became the first state party to ratify the Rome Statute on February 2, 1999. Trinidad and Tobago, San Marino, and Italy were the next countries to ratify it in 1999; Yugoslavia became the 38th country in September 2001. On December 31, 2000, the President of the United States signed the treaty, noting some objections primarily concerning military personnel of nonsignatory states (see www.state.gov/www/global/). The next step would be ratification by the U.S. Senate.
1. Steven R. Ratner, Categories of War Crimes, Crimes of War: What the Public Should Know, eds. Roy Gutman and David Rief (Scranton, PA: W.W. Norton and Co., 1999), 374.
2. Neil J. Kritz, War Crimes Trials: Who Should Conduct Themand How, War Crimes, ed. Belinda Cooper (New York: TV Books, 1999), 170.
3. Edward M. Wise, The Significance of Nuremberg, War Crimes, 59.
4. Belinda Cooper, War Crimes, 11.
5. Tina Rosenberg, Tipping the Scales of Justice, War Crimes, 280.
6. Ruti Teitel, Nuremberg and its Legacy, War Crimes, 49.
7. Bernard D. Meltzer, Remembering Nuremberg, War Crimes, 24.
8. Kenneth G. Henshall, A History of Japan: A Phoenix from the Ashes (New York: St. Martins Press, 1999),140.
9. Peter Maguire, Nuremberg: A Cold War Conflict of Interests, War Crimes, 69.
10. Bernard Meltzer, Remembering Nuremberg, War Crimes, 25.
11. Patricia Viseur Sellers, Rape under International Law, War Crimes, 162.
12. Ratner, Categories of War Crimes, 374.
13. Benjamin Ferencz, Nuremberg: A Prosecutors Perspective, War Crimes, 37.
14. Patricia Viseur Sellers, Rape Under International Law, in War Crimes, 164.
15. Kritz, War Crimes Trials, 171.
16. Diane F. Orentlicher, Internationalizing Civil War, in War Crimes, 156.
17. Briefing paper on International Law, Millennium Report, UN website (www.un.org).
19. Website of the International Criminal Court (www.un.org/icc).
Joanne M. Dufour has represented National Council for the Social Studies as a nongovernmental organization (NGO) representative to the United Nations. She has also been an editor and author of numerous articles about global issues and the United Nations for Social Education. She taught social studies at the high school and college levels for more than thirty years and is currently an educational consultant in Seattle, Washington.
Resources on Nuremberg
The Avalon Project: The International Military Tribunal www.yale.edu/lawweb/avalon/imt/imt.htm
Offers documents from Yale Law School on the Nuremberg Trials. Provides motions, orders of tribunal, and witness accounts.
Court TV: A Look Back at Nuremberg
Details the indictments, defendants, and the creation of the tribunal. Also provides an interview with prosecutor, Drexel Sprecher.
Judgment at Nuremberg: Learning Guide
Guide to the 1961 Oscar-winning tale about war crimes against humanity and the Holocaust. Offers background information and related links.
Resources on Japan
Basic Facts on the Nanking Massacre and the Tokyo War Crimes Trial www.arts.cuhk.hk/nanjingMassacre/NMNJ.html
Resources on Yugoslavia
IGCWar Crimes Tribunal Watch
Provides details of the attempt to bring to justice those involved in genocide in the former Yugoslavian Republic. Includes profiles and briefs.
Balkans: War Crimes
Background and news reports on the Bosnia War Crimes Tribunal, plus full text of the Dayton Peace Accord.
Yugoslavia War CrimesGuardian Unlimited
Presents news about NATOs efforts to seize Radovan Karadzic, the former Bosnian Serb leader indicted by a tribunal for war crimes.
Reports on War Crimes in the Former Yugoslavia
A large archive of articles about Bosnia and Kosovo and excerpts from The Bridge Betrayed: Religion and Genocide in Bosnia.
Resources on Unpunished War Crimes and the International Criminal Court
International War Crimes Tribunal for Rwanda
Covers the War Crimes Tribunal proceedings in Arusha, Tanzania, and provides reports to news agencies and individuals throughout the world.
Coalition for International Justice
Washington, D.C.-based nonprofit institution dedicated to supporting the war crimes tribunals for Rwanda and the Balkans. News and updates on Cambodia and Sierra Leone as well.
International Criminal Court
Official website published by the United Nations Department of Public Information, which contains helpful information about the formation and structure of the court and the Rome Statute.
NGO Coalition for an International Criminal Court
International coalition of nongovernmental organizations that provides information about the International Criminal Court and developments on ratification.
Project on International Courts and Tribunals
Center for International Law and Policy at the New England School of Law