Peace and Justice

Rachel Kerr, Eirin Mobekk

• Publisher: Polity
• Year: 2013
• Print ISBN: 9780745634234, 9780745634227
• eBook ISBN: 9780745657752
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

In recent years there has been a tendency to intervene in the military, political and economic affairs of failed and failing states and those emerging from violent conflict. In many cases this has been accompanied by some form of international judicial intervention to address serious and widespread abuses of international humanitarian law and human rights in recognition of an explicit link between peace and justice.

A range of judicial and non-judicial approaches has been adopted in recognition of the fact that there is no one-size-fits-all model through which to seek accountability. This book considers the merits and drawbacks of these different responses and sets out an original framework for analysing transitional societies and transitional justice mechanisms.

Taking as its starting point the post-Second World War tribunals at Nuremburg and Tokyo, the book goes on to discuss the creation of ad hoc international tribunals in the 1990s, hybrid/mixed courts, the International Criminal Court, domestic trials, truth commissions and traditional justice mechanisms. With examples drawn from across the world, including the former Yugoslavia, Rwanda, Cambodia, Timor-Leste, Sierra Leone, Uganda and the DRC, it presents a compelling and comprehensive study of the key responses to war crimes.

Peace and Justice is a timely contribution in a world where an ever-increasing number of post-conflict societies are grappling with the complex issues of transitional justice. It will be a valuable resource for students, scholars, practitioners and policy-makers seeking to understand past violations of human rights and the most effective ways of addressing them.

1

The Nuremberg Legacy

The developments referred to in the Introduction, and considered throughout this volume, shed new light on the law as well as the politics of accountability. New interpretations of the law have emerged through the jurisprudence of international and domestic courts, alongside differing perspectives on wider questions of justice versus peace and prosecution versus amnesty. This process did not begin with the establishment of ad hoc tribunals in the 1990s, however. The genesis of international criminal law and enforcement was the post-WW2 tribunals at Nuremberg and Tokyo. These tribunals were a crucial element in the development of international law and the politics of enforcement, and the legacy of Nuremberg was deliberately invoked in relation to the decision to establish the ICTY, in 1993.

This chapter discusses the Nuremberg and Tokyo trials and their legacy. It examines the impact of the trials, their contribution to the development of international law, and the post-1945 legal and normative framework for war crimes prosecutions, focusing on three overlapping bodies of law: international humanitarian law or laws of armed conflict, international criminal law and human rights law.

Nuremberg and Tokyo

While the regulation of armed conflict has a long history, enforcement is a relatively modern phenomenon. The Nuremberg and Tokyo trials, conducted in the immediate aftermath of the Second World War, marked a watershed in international law. By holding individuals accountable for abuses, these trials demonstrated that accountability was not only desirable, but also feasible. In spite of flaws in law and procedure, which will be discussed below, the legacy of Nuremberg and Tokyo was the further development and codification of international humanitarian law and human rights law, providing the foundation for the establishment of ad hoc international criminal tribunals in the 1990s, and for subsequent developments in transitional justice discussed in this book.

Prior to that experience, international prosecution for war crimes was extremely rare. The earliest recorded trial in an international court for war crimes was that of Peter von Hagenbach, who was prosecuted for violations of the laws of God and humanity in 1494.¹ Von Hagenbach was installed as Governor of the town of Breisach by Charles the Bold, and proceeded to impose a reign of terror. He was tried under the aegis of the Holy Roman Empire, by 28 judges from different parts of the Empire, so in that sense, his trial was international. There are a couple of other noteworthy aspects: he was accused of violations of the laws of God and humanity the modern reading of which would be crimes against humanity, or war crimes, since they were committed during a military occupation; second, von Hagenbach pleaded a defence of superior orders.² This was denied and he was convicted and condemned to death.

There were no other significant attempts to hold individuals accountable under international law until the end of the First World War, but that ended in ignominy. McCoubrey viewed this as lucky, given that: ‘The presupposition of guilt and the transparently vindictive motivation of these proceedings would so have tainted them with victor’s vigilantism that their ultimate failure can only in retrospect be thought fortunate.’³ The situation at the end of the Second World War was radically different. The Allies had achieved a total victory and were in occupation of Germany and Japan, and the German government had collapsed. In addition to creating a new regime in Germany, the Allies were also embarking on the creation of a ‘new world order’, based on the United Nations and the maintenance of international peace and security. The trial and punishment of German and Japanese war criminals comprised an important element of this. It has been described as the last act of the war and the first act of the peace. As the last act of the war, it was intended to publicize Nazi atrocities and provide vindication of the Allied victory in the name of justice. As the first act of the peace, it was seen as a manifestation of a new world order.⁴ Robert Jackson, in his final report to President Truman in October 1950, said that the endeavour should not be measured in terms of the personal fate of the defendants.⁵ It was argued that the primary purpose of the Nuremberg tribunal was ‘to bring the weight of law and criminal sanctions to bear in support of the peaceful and humanitarian principles that the UN was to promote’.⁶

But the Nuremberg legacy is ambiguous. It has been noted that, ‘for persons of liberal convictions and a strong commitment to legalistic politics [Nuremberg] was a genuine moral crisis’.⁷ There were a number of grounds for criticism. First, all the judges appointed to the bench of the tribunal were from the Allied nations; none came from Germany. Second, only a handful of individuals were brought to trial. Third, the tribunal did not subject the conduct of the Allies to legal or moral scrutiny – for example, for the ‘wanton destruction of cities’; the failure to investigate such acts as the aerial bombing of German cities is often cited as an example of ‘moral tunnel vision’. The Soviet record does not bear scrutiny either and contains acts which, it could be argued, constitute crimes against peace: for example, the conclusion of the Nazi–Soviet Pact in August 1939, and the invasion of Finland by Soviet forces. In addition, individual Soviet soldiers involved in the massacre of civilians in the Katyn Forest in Poland could have been arraigned for war crimes. Finally, the reluctance to prosecute Admiral Doenitz for ‘unrestricted U-boat warfare’, because his defence of tu quoque rested on the assertion that the Allies were practising the same tactics, was taken as a supreme act of hypocrisy. The final criticisms concerned the procedure and applicable law. It was alleged that Nuremberg applied ex post facto law and thereby violated the fundamental principle nullum crimen sine lege,nulla poena sine lege (no crime without a law; no punishment without a law).

The most contentious of the charges was that of ‘crimes against peace’. The charge was broken down into two counts of conspiracy and waging aggressive war. In relation to the first count of conspiracy, the tribunal cited the record of a meeting in the Reich Chancellery on 5 November 1937. The now famous Hossbach Memorandum, named after the adjutant who took the minutes, revealed Hitler’s plans to achieve Lebensraum (lit. ‘living space’) for the German people by taking over first Czechoslovakia and Austria, then moving eastward by 1943–5 to take Poland, and Russia. At this point, Hitler envisaged war with Great Britain and France, Germany’s ‘hate inspired antagonists’, but did not think that they would be roused to defend Czechoslovakia or Austria.⁸ The legal basis for the second count, of waging aggressive war, was the Kellogg–Briand Pact for the Renunciation of War, 1928, and the League of Nations Charter. It is debatable whether or not these instruments were sufficient basis to deem the use of force illegal in 1939, and even more uncertain whether, even if it was illegal, it gave rise to individual, as opposed to state, responsibility. The judgement of the Court was: ‘To initiate a war of aggression … is not only an international crime, it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.’

There was also criticism of the prosecution of a new category of ‘crimes against humanity’. It has been argued that the crimes committed by the Nazis were of such a heinous character that they clearly violated basic principles of justice recognized by civilized nations.⁹ The third category of ‘war crimes’, on the other hand, had a much firmer basis in international law, and had been codified in a number of international conventions and declarations, as well as recognized as norms of customary international law. The Judgement of the Tribunal stated that it was ‘too well settled to admit of argument’; and further that the weight of evidence on this count was ‘overwhelming in its volume and its details’. Taken together, these criticisms undermined the process. As Justice Robert Jackson noted in his opening statement: ‘We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.’¹⁰

The Tokyo tribunal has not been the subject of as great a volume of literature as the Nuremberg tribunal. It has, however, been subject to the same criticism – namely, that it was victor’s justice. The most damning overall critique of the tribunal is mounted by Richard Minear, in his book Victor’s Justice, which by the author’s own admission adopts a polemical tone.¹¹ The concluding paragraph of this book sums up his arguments and is worth quoting in full:

We come then to the end of our study of the Tokyo trial. We have examined lofty motives and base motives. We have found its foundation in international law to be shaky. We have seen that its process was seriously flawed. We have examined the verdict’s inadequacy as history. ‘Victor’s Justice’ is a harsh judgement, but a harsh judgement is called for. It is only slight mitigation that in punishing the Japanese leaders we deceived ourselves.¹²

It is not within the scope of this chapter to examine the merits or otherwise of Minear’s conclusions. It is, however, instructive for this study to assess some of its shortcomings. Minear refers to motives ‘lofty and low’. The lofty motives being the desire to construct a new world order, based on respect for international law and the UN; the low motive being the need to find justification for the Allied war effort, and only ‘barely disguised revenge’.¹³ The most conspicuous omission from the list of indictees was the Japanese Emperor. General Douglas MacArthur, appointed Supreme Commander of the Allied Powers in Japan in 1945, claimed the credit for this decision; he realized that any attempt to put the Emperor on trial would have tragic consequences for peace and stability in Japan. Yet, in the long term, this decision contributed to an ambiguous legacy for the Tokyo trial in Japanese politics and society.¹⁴

Notwithstanding its flaws, the legacy of Nuremberg and Tokyo is more than the sum of its parts: ‘The defendants and their fates were not the reason why Nuremberg has remained a bench-mark in international law and the lodestar of thought and debate on the great moral and legal questions of war and peace.’¹⁵ Nuremberg documented the atrocities committed by the Nazi regime ‘with such authenticity and in such detail that there can be no responsible denial of these crimes in the future and no tradition of martyrdom of the Nazi leaders can arise among informed people’.¹⁶ The key contribution of Nuremberg and Tokyo was that it demonstrated that international resolve can, on occasion, be sufficiently compelling to result in the prosecution and punishment of individuals.¹⁷ It also firmly established that there are certain crimes of international concern which incur individual criminal responsibility.

International Humanitarian Law post-1945

The Nuremberg Charter and Judgement was valuable in providing ‘an authoritative body of law upon which to base the establishment and jurisdiction of the two ad hoc Criminal Tribunals of the former Yugoslavia and Rwanda’.¹⁸ Madeleine Albright, the United States Ambassador to the UN, stated during the discussion on the adoption of Resolution 808 (which concerned the setting-up of an international tribunal) that, ‘international humanitarian law today is impressively codified, well understood, agreed upon, and enforceable’.¹⁹

The UN General Assembly unanimously adopted Resolution 95(I) on 11 December 1946, affirming the ‘principles of international law recognised by the Charter of the Nuremberg Tribunal and the Judgement of the Tribunal’.²⁰ The principle of individual responsibility in international law for war crimes and crimes against humanity was therefore verified. Furthermore, the defence of Acts of State was denied and the defence of Superior Orders was held not to free an individual from responsibility, although it could be considered in mitigation of punishment.

While the concept of individual criminal responsibility in international law for war crimes was ‘too well settled to admit of argument’, the concept of crimes against humanity was novel. That it violated legal principles in applying ex-post facto law is technically correct, even though the Charter restricted its application to crimes committed in connection with the other two charges.²¹ There is no doubt about the validity of the rule now. The recognition of crimes against humanity led to the adoption of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide, which is unique in providing for the trial of alleged perpetrators before an international tribunal.

In 1944, Raphael Lemkin defined genocide as: ‘[The] destruction of a nation or ethnic group … not only through mass killings, but also through a co-ordinated plan of different actions aiming at the destruction of the essential foundational life of a national group, with the aim of annihilating the groups themselves.’²² The Genocide Convention itself is clearly predicated on the experience of the Holocaust, and there is some debate now as to whether it could and should be broadened to include persecution on political grounds, and not based solely on ethnicity or religion. However, the strength of the legal meaning of genocide is to be found in the requisite intent to destroy a group, as such, and not because of political belief. The same acts, if systematic and widespread, are now prosecutable under crimes against humanity, even if committed in an internal armed conflict.

The Nuremberg definition of war crimes was codified and further developed in the 1949 Geneva Conventions and the 1977 Protocols Additional thereto. Unlike the Hague Conventions, which largely dealt with the means and methods of warfare, the Geneva Conventions were designed to protect victims of war (the wounded, sick and shipwrecked, prisoners of war and civilians). The 1977 Protocols Additional to the 1949 Geneva Conventions were an attempt to bring the law into line with developments in the conduct of contemporary warfare, including irregular war and insurgency/counter-insurgency and civil wars. Historically, international law governed states and applied only to interstate conflicts. Civil wars were deemed to be within the purview of the state concerned, and conduct was to some extent covered by domestic law. In comparison with international armed conflict, the law applicable to non-international armed conflict remains fairly limited and is mostly concerned with the protection of victims. Regulation of irregular wars and non-international armed conflict gives rise to a number of challenges, namely that the distinction between combatants and non-combatants can become easily blurred where there is a range of actors, including local armed groups and private militias. The distinction between military and non-military targets can also become blurred as a result of the strategic significance of civilian targets. In many cases, as we shall see, civil wars are characterized by ethnically or racially motivated violence and ethnic cleansing, where attacks on civilian population are not the unfortunate and unintended consequence, but the strategic purpose of one or other or all sides. Many of the conflicts of the 1990s were also characterized by widespread abuses and involved the extensive recruitment of child soldiers, all of which presents significant challenges for enforcement.

International Criminal Law (ICL)

In spite of the obligation to punish grave breaches of the Geneva Conventions and genocide, prosecution was rare in national jurisdictions, and immediate post-war efforts to create a permanent ICC soon foundered. The development and codification of ICL has not been a systematic or cohesive process. Its development is tied to efforts to establish a permanent ICC, which finally came to fruition in July 1998 with the adoption of the Rome Statute and its coming into force in July 2002 (see chapter 3).

In 1948, the Gene...

Table of contents

• Cover
• HalfTitle
• Title
• Copyright
• Contents
• Acknowledgements
• List of Abbreviations
• Peace and Justice: An Introduction
• 1 The Nuremberg Legacy
• 2 Ad hoc International Criminal Tribunals: The ICTY and ICTR
• 3 The International Criminal Court
• 4 'Internationalized' Courts
• 5 Domestic Trials
• 6 Truth Commissions
• 7 Traditional Informal Justice Mechanisms
• Conclusion
• Notes
• Selected Bibliography
• Index