International Tribunals and Courts

[Vrylakas]

Greetings Folks,

Today, the monster Milosevic will finally be facing some justice for a decade of crimes against humanity and warfare throughout the Balkans. While it is true as some have pointed out in other threads that the various "nations" of the former Yugoslavia have managed to commit attrocities against one another over the past decades, ensuring that everyone - Serbs included - can feel they've been victimized, none of it would have been possible without Milosevic at the helm in Belgrade. Milosevic ordered the attacks by the JNA against Slovenia and eastern Slavonia in Croatia in 1991, he ordered the liquidation of the Vojvodina autonomy and measures against local ethnic Hungarians, he repeatedly attempted to provoke Hungary into war, he initiated the bloody sieges of Vukovar, Dubrovnik and Osijek that resulted in much loss of life and destruction of historic monuments in them, he initiated the policy of ethnic cleansing in Slavonia that provoked the Croats to reciprocate in kind after their successful 1994 offensive, he initiated the destruction of non-Serbian Orthodox churches, he initiated the assassination of dozens of Serbian political and cultural rivals, he sparked the wars in Bosnia and Herzegovina by arming the local Serbs in Knin and attempting to annex most of these states to Serbia (besieging Sarajevo in brutal fashion in the process), and it was Milosevic who provoked Kosovo Albanian anger with his measures to deprive them of any political rights throughout the 1980s and 90s that sparked the crisis and human rights disaster of 1999. Someone said in these forums that it is impossible to find many angels in the former Yugoslavia, and that indeed is sadly true - but we can identify at least one devil (continuing the analogy) in particular with certainty, one who the most blood on his hands.

That said - I have a question: Have international tribunals in the 20th century been effective? Do they work? Is there really any international legal basis for them? What jurisdiction does the Hague or the UN have? What about the Nuremburg Trials; did they have an impact on the democraticization of Germany by exposing the crimes of the Nazi regime, or were they incidental? What about the Tokyo War Crimes Tribunals? Rwanda? Cambodia? South Africa (though that was a national effort and not an international)?

It of course comes down to how we define "war crimes". Unfortunately, since WW II nearly every belligerent state in every war has labeled their opponents war criminals, but perhaps a more legal and narrowly-defined definition should be used (if we're to bother at all trying). I'll gingerly offer a vague definition that is similar to the one I offered for terrorism, though as I mentioned then it is always a controversal subject and very difficult to find a definition with a broad consensus of agreement: My definition simply says that any military action that specifically targets civilians or any non-military personnel, even in the midst of a full-scale war, is a war crime. The difference between war crimes and terrorism is that the former is committed by regular armed forces of a state under orders of a formal military command, and the latter is committed by "irregulars" or non-military ("paramilitary"?) forces without outside orders. As I said, this is a vague definition with lots of gray area. I got flamed for that in my terrorism thread and I expect the same here....Go ahead, I've got my asbestos underwear on...)

So - what does everyone/anyone think?

 

[DingBat]

I think the concept of war crimes and war crimes tribunals suffers a little because the definitions appears to be a little vague and it seems to be applied unevenly.

I have no problem with someone like Milosevic being tried as a war criminal. I have more of a problem when line soldiers are tried for things that happen in the heat of battle.

A couple of examples:

In Normandy, there was an incident where about 30 Canadian prisoners were killed by members of the 12th SS (HilterJugend) division. For a while after that, the Canadians refused to take SS prisoners.

In Somalia, during the Battle of Mogadishu, American soldiers observed a woman frequently running back and forth across a street. Eventually one suspicious soldier shot her and found that she was carrying grenades to militia combatants.

Theoretically, at least, you could make an argument that these are examples of war crimes. However, I do not believe that either of these should be prosecuted. Now, you can't just go giving soldiers carte blanche, even during wartime, so the rules end up looking like they are selectively applied, usually by the winner on the loser.

Part of the problem is the intrinsic ridiculousness of trying to apply rules to war.

So, basically, I don't know.

/bruce

 

[Greadius]

In order for law to be just it must be applied evenly across political, social, and ethnic bounds. International war crimes tribunals are a long ways away from such a lofty goal.

I think it is an important goal to keep in mind. In the meantime I'm very skeptical of the concept of international justice because I think it is a risk in soverignity. I think the U.N. would do itself a huge favor in that department by holding the trails in the defendants native country, with at least one of the judges representing their native country.

 

[DingBat]

The fundamental problem with war crimes tends to be this:


Only the winner of a war has the power to prosecute the charges.


That's a real problem as you've got a built-in appearance of vindictiveness. As the victor, using war crimes trials to cover your own culpability would be a good tactic.

/bruce

 

[Vrylakas]

Great responses guys!

DingBat: You're right that there should be a distinction between panic situations in the heat of battle and pre-planned attrocities. Perhaps there is a crime when states attempt to conceal acts by their own soldiers though.

Greadius: You're right as well that war crimes standards need to be universally applied. What do you think of the Allied bombing campaign against Germany in WW II? Harris clearly and unambiguously targeted the German civilian population. It's a difficult call because it's still an emotional issue; I grew up with people who'd been traumatized by the Germans in the war and their only concern about the Dresden bombing was that the Allies didn't kill enough Germans. But clearly universal standards must be established, and according to the admittedly vague definition I've offered this particular Allied campaign was indeed a war crime. What does anyone think?

And DingBat's final point on who conducts war crimes is spot-on of course. Will the UN ever achieve enough authority to be able to conduct war crimes tribunals? The one time that it has attempted to do so, it fumbled badly with the Rwanda case. Milosevic is right where he deserves to be but the reality is that he's there because the West wants him there. He is technically correct that there is no legal basis for his being held and tried in the Hague currently, unfortunately. Will there ever be an international legal standard for war crimes, equally binding to the American, Chinese, Russian, Chilean and Angolan armies? Is this practical? Should we attempt to get states or individuals to at least acknowledge war crimes, even if they don't ever face an actual tribunal? (This would be the South African model.)

The basic point would be to create an international standard of conduct that lets dictators and states alike know they cannot behave with impunity. What is the best way to do this, if historically tribunals have had limited effectiveness and stood on shakey legal ground? (I recall the story about the combined judges council of the Nuremburg Trials toasting the defendents' imminent deaths on the night before the trials began, at the behest of the Soviet judges.)

 

[Sodak]

Definitions would be necessary for such a legal system to work and receive the support of the international community. However, by defining what constitutes a war crime, those who define and hope to prosecute their enemy must expect to be held to the same standards. I would bet that few governments wish to fairly apply such standards to themselves.

Even the most basic definitions of such a legal system are exceedingly difficult to set:

• What is a war crime?
• What exactly is a war? That is, under what conditions does this apply - only when international? in civil war? covert operations?
• How are incidental, wrong civilian deaths separated from those legitimately suspected of being targets? In other words, does the intelligence arm of a gov't then take responsibility for being wrong?
• How do these definitions infringe upon sovereignity?

Vrylakas, your definition of a war crime would easily fall apart in a nation with civil unrest. Too many categories blur together, and the outcome can change who fits what definition.

Because such trials tend to be used by victors to punish the defeated, the gray areas and vaguary will remain. It is a "legality" of interpretation. DingBat sums it up well - applying rules to chaos results in confusion, not order.

 

[allhailIndia]

I don't think it is very fair to have tribunals etc. because they will obviously be misused by the victors to glorify their achievement. Just imagine if Hitler had a war tribunal after he took over Britain and the ridiculous charges against British leaders. In milosevic's case, he should be handed back to the Serbians to try him in their courts of law. If opinion is true, they hate him for what he has done and want to see him suffer.

If war atrocities are to be taken into account, why hasn't Bill Clinton ben tried for the murder of Iraqi children due to sanctions on that country??

 

[Vrylakas]

AllHailIndia and Sodak both bring up valid points, which boil down to practicality. What is a war, what is a crime? They imply the need for an international authority of some sort that has the exclusive right to define these things. Of course, with humans it will always be impossible to get a completely unbiased judgement anywhere, ever.

But still the question begs; what should we do? Should Germany in 1945 have been trusted to root out the war criminals in its population and put them on public trial? Japan in 1945? If Milosevic were sent back to Serbia, I think it'd cause major political difficulties; should a man like Milosevic who is responsible for hundreds of thousands of deaths be allowed to get off easy because it's politically inexpedient for his home country to try him? The UN just broke off its decade-long attempt to establish just such a framework for war crimes trials in Cambodia, because too many Cambodians would be compromised and it threatened the fragile stability in Phnom Pehn; should the Red Khmer leadership be allowed to go free after slaughtering nearly a quarter of the Cambodian population in the 1970s? Would some sort of international tribune in Oslo, Tokyo, Geneva, etc. etc. etc. be able to do the job? In these cases, the crimes were truly international crimes impacting many nations and people. I ask again: Were the Nuremburg and Tokyo trials effective? Did they send a message to the post-war world that these kinds of behavior were "wrong"? Or do the Germans and Japanese merely see these trials as the price of losing the wars, not drawing any lessons from them? I truly don't know the answers to these questions.

Anyone?

 

[Greadius]

Something must have worked in Japan and Germany since neither of those countries have been extremely peaceful ever since.

Originally posted by allhailIndia
If war atrocities are to be taken into account, why hasn't Bill Clinton ben tried for the murder of Iraqi children due to sanctions on that country??

Sanctions are a war crime? You MUST trade with this nation or you could get tried because the despotic ruler starves children? I thought blaming Clinton for everything was a republican trait; is it catching on intertnationally

 

[DingBat]

There's never been a perfect application of war crimes prosecution, even with Germany and Japan post-WW2.

As soon as the first frosts of the cold war began to show up, German began retreading old Wehrmacht officers to form the new Bundeswehr. Now, I'm not saying these officers were war criminals, but the priority was definitely switched from ferreting out criminals to forming the backbone of a new army.

In Japan, some officers were scapegoated to allow blame to be diverted from the Emperor, it being considered necessary to the government of the country to have him continue.

I think the best you can hope for is that those responsible for the most heinious abuses acts are held accountable.

/bruce

 

[Flatlander Fox]

Milosevic just happens to be the one thing we (Allies) wanted out of Serbia...

Karazdic (spelling?) still roams freely in Brcko, and we really don't care. (He used to drive through the ZOS daily).

Slobo is our war trophy. Europe needs him to hang, if only to show that their idea of "peacekeeping" works.

America needs him to hang, to show that the billions of dollars we poured into those countries wasn't wasted...

Europe needs to pat itself on the back, and the conviction of Slobo will do that for them.

Just as the Allies needed to do the same after WWII.

As evil as Slobo is, I think that the entire region is responsible- Albanian, Serb, Croat, and Bosnian alike.

Slobo was the great initiator, and a driving force in the violence and collapse of his country.

War Crimes? Aren't the two words the same?

 

[FredLC]

I hesitated a lot before posting my own opinion here, because I must admit that I’m not exactly an expert in International Tribunals; however, I think that I can add a little on the legal approach… generally speaking, of course:

First, I’d like to recommend the reading of my own post in the topic about the “USA fourteenth amendment”, at least the part concerning to “social contract”, because I think it will help to understand my position (I am really too lazy to go through that again), and I’ll assume that it was read.

Ok, so, what’s wrong with war tribunals? First of all, it’s that the legitimacy to judge – one of the three classic powers of the State, as defined by Montesquieu – comes from the acceptance of the citizens that such a State is the “ruler”.

Therefore, anyone that is to be judged by an International Tribunal must be, according to this, an International Citizen, otherwise such court would have no authority over him/her.

Now, we all live in the world, that’s true. But it’s also true that there isn’t yet any kind of legitimate “world government”, that has the authority to deal with worldly matters. The U.N. is the fetus of what one day could be such organization, but isn’t nowhere near that, because countries don’t give up their self-determination easily.

Since I believe in justice, I like the idea of criminals being punished. But the ability to properly judge goes to the question of sovereignty, as Sodak well remembered. Because in order to form a courtroom that is not bound by countries borders, we also must have an organization that can enforce its decisions without being limited by those same borders.

It’s because only “humanity” have the legitimacy to judge people for “crimes against humanity”. Countries can, hypothetically, create laws that condemn such crimes, but they could be applied only within its borders, if the perpetrator is dumb enough to go there, even being aware of such laws.

Claiming the right to exercise State-like powers anywhere in the world – or, in other words, because of acts that are, in theory, a matter to be solved by a foreign legal system – without giving up the own sovereignty is, in ultimate analysis, a new act of invasion, since one must give up it’s own self-determination and the other doesn’t have to give up anything.

At least to *law*, the fact that it would make war criminals far more difficult to punish should not make a difference. After all, every one that lives in democracies care for the concept of “due process of law”, and understand how dangerous it is to give up that. Because when someone freely disrespects the “rights” of someone you don’t like, the day that this same one will also disrespect your own is not far away.

And if his own country would decide that he was not to be punished, well, they are the ones to decide. Others shouldn’t interfere.

So, to me, that trial is, indeed, as illegal as Milosevic wants it to be, because, guilty as he is, he is not officially a “world citizen”, and therefore cannot be submitted to a “world tribunal”.

Now, I agree that there is the practical difficulty that most of those dictators have influence to get away with their crimes unpunished. I too dread that perspective. But, to me, making illegal tribunals is not an option. And the indignation of seeing such monsters escaping free could be the breaking point to creating a real, effective U.N., that would, then, have the legitimacy to judge them.

And that brings me to point number two:

Even if what is “war” and what is “war crime” were already very well defined, the criminal description would have to be ready BEFORE such crimes were committed. At least in Brazil (and I believe it goes to all civilized countries), there is a rule called “anteriority” that says: “there’s no crime without a previous law defining it, and no penalty without a previous description of it”.

Now, I know that in countries of the “common law” system, such as U.S.A. and U.K., the value of jurisprudence is enormous (much stronger than in Brazil); but, even in them, there should be minimal legal parameters that the judges should follow to support their decisions.

So, if we agree that it’s the *law* that defines crime, and there is no legitimate law saying that what Milosevic has done IS a crime, than, yet again, that trial is illegal. Not only such courtroom does not have authority over him, it also does not have any pattern to guide it’s works, unless someone imagine that the “due process of law” is good for internal but not for international stance.

As for me, Milosevic, should be sent to his own compatriots to be judged, and if they decided that he shouldn’t be punished – even if due to his influence, and not due to justice – the rest of the world should line with that scar in the pride, and use that lesson to learn and be ready next time (that hopefully won’t come).

As for the definitions, I’ll risk making some. People can help me by saying what I did wrong, and perhaps we will come up with some real cool suggestions to give to U.N. people when they decide to do things right .

United Nations Criminal Code:

1º - Definition of War:

“To what regards to this code, War is any aggression of any sort, that is conducted, sponsored, supported or accepted by a State, against other State, with the intention of militarily, economically or morally overcome one another, representing, ultimately, a conflict between consolidated powers”.

Comment:

I tried to be as comprehensive as possible, due to the recent demonstrations that war is more than armies fighting, without loosing the scope that it represents a clash of interests. The way I would define “war” involves that, necessarily, the ones involved ARE States, as acts from barbarians or rogues could be better defined as terrorism or piracy.

2º - Definition of War Crime:

“A war crime is any conduct performed by a State or any member of it’s army, during the period of war, that disrespects the basic human rights of life, freedom, healthy and property, without a clear necessity for the war effort, or with the use of exaggerated means, even if such necessity is present.”

Comment:

Well, I understand that it’s still very fluid, but this will always, inescapably, end up in the human feeling of each case. Deciding if there were exaggeration or if the actions were correct is something that can come only with reviewing the exact circumstances, and it cannot be generally described

3º - definition of crime against humanity:

“A crime against humanity is any conducted performed by a Government or any of its representatives, in time of peace, that disrespect the basic human rights of life, freedom, healthy and property, either against foreigners or against it’s own population, or systematic abuse and disrespect for the rule of law.”

Comment:

I think that “war crimes” and “crimes against humanity” are almost alike, except for the circumstances around them. So, the environment is the main difference in those concepts.

So, those are my definitions. I invite everyone to help perfecting them. What should I change to make them more accurate?

Well, that’s pretty much what I had to say, except that, even believing that setting Milosevic free IS the “right” thing to do… I do hope that he gets hit by lightning in his way home.

Regards .

 

[amadeus]

These so-called "tribunals" (bureaucratic nonsense) are a joke. The Hauge... Slobadon Melosovic will be dead by the time they reach a sentencing. Right now he's in his lavish headquarters, paid for curtousey of the United States, and he's never going to be convicted of anything.

International courts are a bureaucratic, slow, and unfair concept (anyone care to tell me how the UN did anything to STOP the slaughter of people in Yugoslavia?)

 

[Sodak]

The question of sovereignity is clearly the major stumbling block to having an internation legal system, no matter how limited. If, instead of looking at these trials as legal prosecution for war crimes, we look at them as exactly what they are - extra punishment meted out by the victor of an international conflict - they could themselves be defined as the final act of a war.

What I mean to say is that they should not be viewed as post-war legal trials. They should instead be seen as the last volley after the final bell. The bout is over, but the victor (as a spoil) gets to throw one last punch. Then the war is over. This seems to be how they are treated in reality.

If seen in this light, then there is no legal need to respect sovereignity, as the war is not yet over. It provides a way for the victor to punish those high ranking officials blamed for responsibility. The only legal concerns might then be whether or not such a trial is carried out fairly, or with just cause.

 

[Vrylakas]

Sovereignty is indeed the key issue, as several have pointed out (though Sodak gets the reward for nailing it on the head). Ultimately any international agreement on war crimes will involve a compromise on every participating state's own sovereignty. Just yesterday I believe there was a ruling in Belgium against the ability of the state to prosecute "war criminals" (i.e., use national laws to prosecute crimes not committed by citizens or within the state's jurisdiction). This has a bearing on the by-now famous case filed by Palestinians against Sharon of Israel. As well, Spain and Britain struggled with the same issue last year with Pinochet. Is the answer in simply allowing national states to grant themselves the right & jurisdiction to prosecute international war crimes cases? There are some (alleged) criminals in the world today who dare not set foot in certain countries (usually Western, though not always) because they'd be arrested on sight; is this the way to go?

Beyond sovereignty, it only gets more complex with the need to define whose laws apply in international war crimes case. The Lockerbie bombing suspects from Libya were tried in the Netherlands but by Scottish law. That implies not just how the case will be prosecuted but what punishment the defendants will receive if found guilty as well.

Still, with all the difficult issues, I'm not yet willing to let go of the concept. I think - without any particular evidence admittedly - that the war crimes tribunals in Nuremburg and Tokyo did make a positive difference, by putting these individuals up on a stand and going through the process of a trial in full public view. We are arguing the legality and the legitimacy of the process (as well we should) but the fact that at least some - a handful to be sure, but some - of the defendants in both cases were acquitted and set free demonstrates that there was some form of legal process in place, however philosophically flawed.

Should the international community, through the UN or some international legal body or conference, attempt to at least define what a war crime is and create a legal protocol or procedure as a first step? Should we create "trigger" laws that automatically go into effect, for instance, if Saddam Hussein flies to a signatory country that he must be arrested on sight and submitted to this protocol in that country? What about historical crimes? There are still survivors from the NKVD who massacred 4000+ unarmed Polish prisoners of war (POWs) at Katyn in 1940; should they be hunted down or just arrested if they visit a foreign country? What about any surviving Turkish troops who were party to the Armenian genocide of 1915? Should the U.S. and Canada be censured for their treatment of their native Indians in the 19th century, or Belgium for the Congo attrocities? Which of course brings up the question of whether war crimes should only apply to individuals, or whole countries; there is after all a difference between a locally-comandeered attrocity (My Lai) and a deliberate state policy of attrocities (the Nazi regime).

This just keeps getting deeper...

 

[allhailIndia]

As I see it, Bill Clinton does deserve to be hanged for his stubborn refusal to remove sanctions against Iraq. Sanctions as such may not be evil, (hell they were slapped on India too and nobody even remembers when they were initiated and when they were removed), but it is the people who they target is what matters.

Sanctions against Iraq could have been aimed at preventing them from getting weapons from China or N.Korea, not starving the children of Iraq. Now the US finds that Saddam is more popular than ever with Iraqis and the Opposition is slowing slipping away.

As far as I see it, the sanctions have been nothing but a burden to common Iraqis, not Saddam Hussein.

 

[allhailIndia]

Almost forgot, Milosevic will be lynched on the Streets of Belgrade if the Serbs are allowed to have a go at him. Leaders like him are the sacrificial goat which takes away all the guilt of a people when it is killed.

 

[DingBat]

Originally posted by allhailIndia
As I see it, Bill Clinton does deserve to be hanged for his stubborn refusal to remove sanctions against Iraq. Sanctions as such may not be evil, (hell they were slapped on India too and nobody even remembers when they were initiated and when they were removed), but it is the people who they target is what matters.

As I see it, the rest of the world needs to get it's story straight.

I thought the sanctions were UN mandated? Aren't the weapons inspection teams from the UN?

Iraq has been a thorn in everyone's side since the Iran-Iraq wars. Iraq has already used weapons of mass destruction on the Kurds (how soon we have forgotten) and is trying to acquire more.

Fears of Arab support prevented the Americans from removing Saddam during the Gulf War. The europeans don't want to fight him now.

No one wants to fight to remove the problem, and now it appears that sanctions are no good either. What's left? Stern language?

How many people have suffered because Saddam was left alive?

/bruce

 

[Greadius]

But Bruce, you forget that all foreign policy decisions should be designed to protect IRAQI CHILDREN.

Saddam's various wars of aggression and policies that starve his own people. It is completely irrelevant that Iraq, through its agriculture prior to 20 years of dictatorship and food-oil program, should be capable of feeding most of its population very well. IRAQI CHILDREN are dying, and that is all that matters.

If those IRAQI CHILDREN did grow in Saddam's regime they would probably die fighting in a war of aggression or be executed for disagreeing with him. I doubt the ability of any sanction to be as deadly as the rule of a Dictator.

But then, IRAQI CHILDREN are dying, therefore we must have free trade with Iraq? Isn't it ironic that the people who deplore Iraqi sanctions are the same ones that oppose WTO style trade agreements? Kind of like telling us we MUST trade with Iraq but we're not allowed to have free trade with friendly nations. Great logic.

 

[Sodak]

Vrylakas, I gather that you are interested in some way to define a tribunal or international court that falls outside the bounds of war. What I described was an idea to simply change the definition of such a tribunal to fit how they are currently used - So, how would one be designed to fit the ideal?

It seems that the only way to make a set of international laws that do not threaten the sovereignity of national laws is to use the lowest common elements. At base, all criminal law comes down to generally accepted norms of behavior. Religions tap into this - tho widely varied, all agree on certain limits of acceptable behavior. No killing, no stealing, and such. Such basic moral rules could (maybe?) be defined in a way to encompass the abstract notions of rulers (responsible party), accomplices, a group of victims (the wronged), and what unacceptable acts were carried out.

Such terms would by nature be vague and open to interpretation, which may be disagreeable to some. However, a simple morality-based international law that was accepted by the majority of nations (presumably representing their society's views), would provide a justified base upon which cases could be defined. Because context and interpretation would necessarily be integral, there would need to be a council set up to approve the pursuit of a trial. How that could be done impartially is anyone's guess. Enter the creative lawyers...

The main problem with such a court is not the methods in which law could be carried out, but rather that it just replaces the sovereignity issue with one of vaguary. Which takes us back to the original quandary.