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BRIA 12 3 c Do We Need a Permanent International Criminal Court?

CONSTITUTIONAL RIGHTS FOUNDATION
Bill of Right in Action
Summer 1996 (12:3)
Updated June 2000
 

Keeping the Peace After the Cold War

BRIA 12:3 Home | The United Nations: Fifty Years of Keeping the Peace | The Future of NATO | Do We Need a Permanent International Criminal Court?

Do We Need a Permanent International Criminal Court?

According to witnesses, Dusan Tadic raped at least one woman, beat more than a dozen people to death, and made his victims drink mud and motor oil. If this were a typical criminal case, Tadic would be charged with rape, murder, mayhem, and assault and battery. But Tadic's case is not a typical criminal trial. The victims were prisoners of war. The alleged incidents took place in a concentration camp in Bosnia—a country fractured by a violent civil war since it split from the former Yugoslavia in 1992. Tadic's trial is taking place in The Hague, Netherlands, before a special international tribunal (court) established by the United Nations. Dusan Tadic is the first individual prosecuted before an international court since the famous Nuremberg and Tokyo war crimes trials following World War II.

By international agreement, war crimes generally involve the intentional killing or mistreatment of prisoners of war and other noncombatants during wartime. One of the purposes of the Nuremberg and Tokyo trials was to warn those who might commit such acts in the future that they would be held accountable and punished by international law. Yet Tadic is the first person to be prosecuted by an international court in almost 50 years. Why haven't there been other war crimes trials? Do we need a permanent international criminal court?

The Nuremberg and Tokyo Trials

As World War II drew to a close, the allies debated what to do with the top Nazi and Japanese war leaders. British Prime Minister Winston Churchill wanted to simply put them all before a firing squad. But the other allies, including the exiled leaders of countries occupied by Germany and Japan, called for "organized justice" rather than summary executions. When Harry S. Truman became president in 1945, he opposed vengeful justice and supported the idea of an international war crimes tribunal.

The U.S. War Department developed the plan to prosecute "the highest ranking German leaders." In December 1945, the trial of 22 top Nazis began in Nuremberg, Germany. In the midst of the war-ravaged city, the International Military Tribunal met in one of the few buildings still standing, the Palace of Justice. A panel of jurists, one each from the United States, Britain, France, and the Soviet Union (the major wartime allies), sat in judgment.

The Nazi leaders were charged with war crimes and with two new violations of international law: waging "an illegal war of aggression" as well as "crimes against humanity." This last accusation centered on the Holocaust in which 6 million Jews along with members of other ethnic, religious, and political groups were systematically murdered.

The Nuremberg trial ended with the conviction of 19 Nazi war criminals; 12 of them were sentenced to hang. A similar trial of high-ranking Japanese military and civilian leaders took place in Tokyo between 1946 and 1948. In addition, another 185 German military and civilian officials, death camp commanders and doctors, Nazi judges, and businessmen who exploited slave labor were prosecuted in a series of trials at Nuremberg lasting until 1949. The most important legacy of these trials was that, for the first time, those guilty of perpetrating heinous acts with no military purpose were called to account and punished by a court of international law.

The Record Since 1945

Since the Nuremberg and Tokyo war crimes trials, most countries have signed international agreements outlawing war crimes. In 1948, the U.N. General Assembly voted to prohibit genocide, which it defined as "acts committed with intent to destroy, in whole or part, a national, ethnical, racial, or religious group." Also, the Geneva conventions of 1949 identified specific crimes against POWs and other noncombatants during wartime.

Several incidents of genocide have occurred since the U.N. General Assembly prohibition of genocide, and many of them have occurred without subsequent enforcement of the prohibition. There have been appalling atrocities and more are still occurring today. For example, in 1965, the Indonesian army along with civilian vigilante groups slaughtered a half-million Communist Party members, atheists, and foreigners. In 1972, in the African country of Burundi, the government controlled by the Tutsi minority attempted to exterminate the educated class of the Hutu majority. Up to 200,000 were murdered. During the 1971 civil war in East Pakistan (now Bangladesh), over a million people, mostly civilians, were killed.

The worst case of genocide since World War II took place in the Southeast Asian country of Cambodia. In 1975, a Cambodian communist revolutionary movement of radical students and peasants, the Khmer Rouge, seized control of the country. Within hours of taking power, the Khmer Rouge drove millions of Cambodians out of the cities, which the new rulers believed were evil creations of the capitalist West. The city dwellers, even the old and sick, were forced to march into the countryside to take up new lives as peasants. Those who resisted were shot. Hundreds of thousands died of exhaustion and starvation. The Khmer Rouge shot anyone even remotely associated with the old regime—civil servants, soldiers, doctors, lawyers, merchants, landowners, Buddhist monks, teachers, high school students. The terror finally ended in 1978 when the Vietnamese army entered Cambodia and overthrew the Khmer Rouge government. Within a period of three years, between 1 and 2 million Cambodians, perhaps 20 percent of the total population, had been annihilated.

Indeed, the recent incidents in Rwanda constitute the only case of genocide that has spurred the international courts to invoke the genocide prohibition. In 1994, an incredible slaughter took place in Rwanda. As in neighboring Burundi, the Tutsis and Hutus have hated each other for centuries. Unlike Burundi, however, a Hutu majority ruled Rwanda. In 1990, the Tutsi revolted in Rwanda. The Hutu government armed militia groups to attack Tutsis and anti-government Hutus. During a 100-day frenzy of bloodletting in 1994, Hutu militias sought out and killed perhaps as many as 800,000 Tutsi men, women, and children. In the words of one Hutu militia member, "We were told to kill them all."

With so many incidents, why have so few war criminals been prosecuted? One answer rings out: International politics makes it difficult to do. At the end of World War II with Germany and Japan defeated, all the major powers agreed on the decision to try German and Japanese war criminals. But then came the Cold War with the two superpowers—the United States and Soviet Union—squared off in fierce international competition. Each had its own allies and client states. Under these circumstances, it was difficult to get an agreement about war crimes and who was guilty of committing them.

Today, the Cold War has ended and the possibility of international cooperation has increased. But what can the world community do when war crimes take place during a civil war? This is what happened in Indonesia, East Pakistan, Burundi, and Cambodia. There is no "police force" that can enter a country and arrest its suspected war criminals.

This was the problem in Rwanda and most recently in Bosnia. The Bosnian civil war pitted three ethnic groups against one another—Serbs, Croats, and Muslims. Each side has charged the other with atrocities and war crimes. Much attention, however, has focused on the side winning the civil war—the Bosnian Serbs.

To carve out a separate state for themselves, Bosnian Serbs adopted a policy of "ethnic cleansing." As Serb fighters moved into a Bosnian Muslim area, they raped and terrorized civilians to force them to flee from their homes. Serbs rounded up military-age Muslim men and boys and held them in detention camps. In 1992, the international press exposed starvation and other mistreatment of these prisoners. Suddenly, many in the world saw the image of concentration camps in Europe once again.

Stung by press criticism, the Bosnian Serbs dismantled many of their prison camps. But in July 1995, when the Bosnian Serb army captured the city of Srebrenica, about 8,000 Muslim men and boys disappeared. Witnesses say that they were all shot and buried in mass graves.

In May 1993, largely at the urging of the United States, the U.N. Security Council authorized an international war crimes tribunal for the former Yugoslavia (ICTY), which includes Bosnia. This is the first such court to be established since Nuremberg. In November 1994, the United Nations also set up a war crimes tribunal for Rwanda.

Since the inception of the ICTY, tribunal lawyers have been gathering documents, videos, witness interviews, and other evidence. In April 1996, investigators began to excavate suspected mass grave sites in Bosnia.

The ICTY’s latest list of outstanding public indictments lists 67 indictees. Among those charged have been the Bosnian Serb political leader and the top army commander. The tribunal does not have the power to try defendants in absentia. Nor does it have the means to seek out and arrest suspected war criminals. It's also having problems collecting evidence.

So only Dusan Tadic and a handful of others have faced trials. Tadic, a Bosnian Serb, made the mistake of fleeing the war to Germany, where Muslim refugees identified him. His trial, the first war crimes trial since Nuremberg, began on May 7, 1996 and ended one year later. Thirty-one counts of persecution, murder, cruel treatment, and inhuman acts were brought against Tadic, who was found guilty of 11counts and was sentenced to 20 years imprisonment. These 11 counts included crimes against humanity and violations of the laws and customs of war established by the Geneva Convention, but did not include any counts of genocide. As of now, no verdicts on genocide have been delivered by the ICTY, although the Rwanda tribunal has delivered such verdicts.

Richard Goldstone, a respected South African judge, has been appointed chief prosecutor for both the Yugoslav and Rwandan tribunals. The prosecutor hopes that by trying "little fish" like Tadic, he will expose the war crimes of higher officials and perhaps they too can be brought to justice. The success of war crimes prosecutions, says Goldstone, "will be a powerful argument for the creation of a permanent international criminal court."

For Discussion and Writing

  1. Do you agree that such things as "war crimes" actually exist and should be punished? Why or why not?
  2. Do you agree with the decision at the end of World War II to try the top Nazi and Japanese war leaders? Why or why not?
  3. What problems does the international tribunal on war crimes have to overcome? Do you think a permanent tribunal should be established? Why or why not?

For Further Information

The ICTY at a Glance: Links to recent indictments, trials, and cases that have gone or are going before the ICTY.

A C T I V I T Y

A Permanent International Criminal Court?

For an international court to be effective, what powers should it have? Form small groups. Decide which of the following powers an international war crimes tribunal should have. Record the reasons for your decision so you can report them to the class.

  1. The power to try suspected war criminals in absentia.
  2. The power to arrest suspects anywhere in the world and bring them before the tribunal.
  3. The power to force any government to turn over evidence to the tribunal.