A Hypothetical Case

[Neverwonagame3]

I've posted this one before, but I'm going to post it here in order to contrast the reactions. It's a hypothetical about what you would do if you were one of the judges of a War Crimes Tribunal in the fictional case.

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Meta-Scenario:
A Federal country, Maristan, has a constitution in which all powers not delegated to the Federal Government explicitly are given to the states. The country has about an 80% majority of people considered to be ethnic Marists, with 20% consistent of the minorities put together.

Racism by the Marists against the others is a long-standing tradition, to the point it makes the 1960s South look saintly by comparison- although the Reformist movement (which would agree with Western cultural norms on such things) exists, it's popularity is comparable to the Australian Greens- basically a minor party not very noticable. A gradual transition was in process towards ordinary Western values for approximately a generation, chiefly occuring amongst the rich and academia of the country- however the racism is still as bad as described.

Maristan's traditional enemy is Karaks, a "proper" Western nation on its borders. Maristan is not a member of the United Nations, and has never acknowledged the sovereignty of international law.

One of the states, Durakstan, decided to begin a policy of genocide against the minority groups in the region (totalling about 200,000 people). Durakstan had a 95% majority Marists, which is why they did it and not other states. Because this was entirely legal under the Constitution as ruled by the Courts, by literal meaning, and by intentionalist interpretation, they were not stopped. In response, Karaks invaded and exploited internal tensions to conquer Maristan. Many Maristani generals defected, contributing to the defeat.

Several possible "defendants". (NOTE: Obviously there are a few cases that are far more clear-cut. Assume that these are the most controversial of all the cases)

A: The Prime Minister of Maristan. When told about the genocide, the Prime Minister considered intervention but soon afterwards faced a Court ruling that the extermination was entirely legal. He then decided that, whatever his views on the matter, he would not act to stop it despite disagreeing with the measure.

The ruler of Karaks sent an ultimatum to the Prime Minister. He knew that the Prime Minister had sufficient support amongst the armed forces that if he wanted to he could stop the genocides and get away with it politically- he thus threatened to declare war unless the Prime Minister did so. The Prime Minister had previously been planning to attempt political negotiations with Durakstan to try and stop the genocide. Under the circumstances, he replied that as Prime Minister, he would not pull a coup de tat against his own country, in defiance of democracy and the Constitution. The war started accordingly.

The Prime Minister's defence is that he did not directly influence the genocides. He played a major role in the war effort to ensure they took place, however- soldiers under his command defended the extermination camps from attack.

B: The Premier of Durakstan. The Premier did not want the extermination to take place at all, but lacked the support in Cabinet. Threatened with being deposed and his career ruined, he decided to let the majority in Cabinet have their way. However, he refused to play any direct role in the genocide and never made an active decision to contribute to it happening.

C: The Minister of Minorities in Durakstan, directly in charge of the extermination. Ironically the leader of the Reformist Party, he knew that the extermination would go ahead no matter what he did because of his party's relatively minor role in a Coalition government. He thus decided to cooperate and did everything he could to make the killing as painless as possible, a fact he is at pains to point out.

D: A soldier known by the popular name of the Great Butcher. Notorious for overseeing the extermination of over ten thousand people, the Great Butcher was in fact conscripted into the role. By military law, refusing to obey an order carries the penalty of being burned alive (reduced to shooting at the discretion of a superior, but only in emergency and battlefield cases). The Great Butcher is at pains, of course, to point this out. He ended up exterminating far more effectively than others due to a natural talent for the job, however. The Great Butcher claims he acted to the best of his ability because his immediate superiors were well aware of his administrative talents and would see through any attempt to hold back.

E: The head of the Supreme Court of Maristan. He played no role in the genocide except to rule that it was legal. However, by an intentionalist interpretation OR a literalist interpretation OR an interpretation based on Maristani common law up to that point, he was right.

F: The lawyer who acted for the State of Durakstan. Relevant in this case because, despite the Head's insistence, the Supreme Court almost ruled the genocide illegal (most likely for reasons of compassion). This lawyer put massive pains and effort into this case, primarily out of the feeling that it was his duty as a lawyer to do his best for his client no matter what the circumstances. It is primarily thanks to him that a majority of the Maristan Supreme Court was swayed to genocide.

If you were a judge or otherwise in an posistion to influence the case, what would you think of each of them? And how would your rulings change if the state of the law was as it was prior to World War II, rather than it's modern variant?

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[Snorrius]

What are the place or these countries on international scene? Are they in "Europe" or in "Africa"? What are their relations with USA (or with Great Powers if this is an alternate world)? What are natural deposits and which one has more oil and natural gas?

 

[BvBPL]

And how would your rulings change if the state of the law was as it was prior to World War II, rather than it's modern variant?

This is the easy part of the question. Prior to WWII (which also means prior to the UN), there was no customary international law on internal genocide or even on the internal treatment of a state's nationals with the possible exceptions of slavery and an obligation to avoid firing on civil noncombatants. So there wouldn't be a trial at all against Maristan, but their might be against Karaks for starting a war.

Customary international law arises from the widespread acquiesce of a general practice accepted as law. Consent from an individual state is not necessary to bind that state provided that state has not expressly and persistently objected the norm.

As such, a threshold question to a contemporary instance here is whether or not Maristan expressly and persistently objected the international norms about genocide and the treatment of minorities. Whether or not that occurred is an unknown here. We do know that Maristan has never acknowledged the sovereignty of international law. If that non-acknowledgement can be read as a persistent objection to international norms of conduct then customary international law may be inapplicable here. If that were the case then an international court would have no say in the matter, at least under current understandings of international law. (Although if that's the case that Karaks might have a strong case to make for the total conquest and annexation of Maristan by claiming that since Maristan refused to acknowledge the norms of international law Karaks is not obliged to recognize Maristan's sovereignty.)

If Maristan did not persistently object sufficiently to void international law then actors A-D could all appear before the court, present testimony in their defense, and be subject to countervailing testimony from the prosecuting party. Actor F was acting as Durkastan's agent and it would be inappropriate to hold him responsible for the actions of his principal. Actor E's actions were too far attenuated from the ultimate genocide to hold him accountable.