WHY WAR CRIMES TRIBUNALS ARE NECESSARY

What International War Crimes Tribunals Are
International war crimes tribunals are courts of law established to try individuals accused of war crimes and crimes against humanity. Despite the often heinous nature of the crimes that individuals commit during intractable conflicts, including genocide, torture, and rape, it has become common practice to offer the accused an opportunity to explain his or her actions in front of the victims and their families, as well as the media. Tribunals have almost entirely replaced retributive justice's summary executions. Based on generally agreed-upon international standards of acceptable human behavior, they have introduced a new ethos of liberal legalism for dealing with war crimes.[1]
Why War Crimes Tribunals Matter
Following a conflict, crimes that have exceeded the normal parameters of war behavior (jus in bello) must be dealt with before a society can begin the peacebuilding process of reconciliation. War crimes tribunals do not offer the accused a chance for forgiveness as truth and reconciliation commissions do. Tribunals do, however, offer victims and their families the opportunity to confront those responsible for what happened to them, and hopefully to put the horrors of war behind them. A tribunal can be a forum for honoring the memory of those lost, as well as punishing those responsible.
The war crimes tribunals of Nuremberg and Tokyo, in which legal justice was used to punish the upper echelons of the German and Japanese military following World War II, continue to be regarded as the most successful tribunals to date. The democratic, progressive success of both nations following these tribunals is often given as evidence of the effectiveness of war crimes tribunals in helping a society that has perpetrated war crimes to return to stable diplomatic relations and the road to peace.
The Positive Side of War Crimes Tribunals
Mark Amstutz, a professor at Wheaton College, finds fault with retributive approaches to justice because they do not pay sufficient attention to how individuals are to reconstruct their lives.
One of the arguments in support of war crimes tribunals is that they act as a deterrent to potential war criminals. In fact, this idea is one of the main arguments behind a push to construct a permanent international war crimes tribunal. Currently, tribunals have to be sponsored by an organization like the U.N. or a national government. Without a permanently-established war crimes court, military and government leaders may feel emboldened to commit crimes such as the mass murder of ethnic groups in East Timor in the 1980s and 1990s, or in Rwanda in 1994.
War crimes tribunals offer a rare chance for the world's leaders and citizens to scrutinize both the deplorable decisions made by particular leaders, and the atrocities committed by the soldiers and agents of those leaders. Without such a forum, there would be no method for assuring that the masterminds and perpetrators of genocide and other war crimes are justly punished.
Tribunals also give victims and their families an opportunity to regain a sense of power that may have been lost resulting from a war crime. It is empowering for victims to stand up in a court of law and identify those who wronged them. A war crimes tribunal can also force forgotten or hidden atrocities to be retold by survivors. In this way war criminals living free of judgment are finally forced to accept responsibility for their actions and be judged for what they have done.
For a country attempting to make a transition from a repressive regime to a democracy, war crimes tribunals offer citizens and leaders the opportunity to put their faith in an equitable rule of law. Countries that truly wish to become modern democracies must accept the rule of democratic law and apply it to even their most powerful criminals. While this process takes an enormous effort of national will, nations that successfully conduct tribunals within the bounds of such laws prove they can function without reverting to the undesirable methods of repression and violence. Thus war crimes tribunals have the potential to help emerging democracies discover the benefits of a strong legal system while reconciling past atrocities.[2]
Finally, if all members of a society can agree upon what is unacceptable by trying its war criminals, then it is easier for the society to agree on what is acceptable. A successful war crimes tribunal allows the past to be laid to rest and a peaceful future forged from its results.
The Negative Side of War Crimes Tribunals
Terrence Lyons talks about the balance that lies between providing incentives for dictators to step down and enforcing punishment mechanisms for leaders who have behaved unjustly.
Many argue that war crimes tribunals offer no deterrent to potential criminals whatsoever. People with strong convictions against a certain religious or ethnic group will likely not feel any less hatred for that group just because a possible tribunal looms in the future. Both Hitler and Pol Pot believed they would be revered by future generations for the extreme measures they took to change the makeup of their societies. These leaders were inspired by their visions of the future and it is unlikely the prospect of a war crimes tribunal would have swayed either dictator.
In fact, another argument against tribunals is that men like Hitler and Pol Pot, the leaders of violent movements, are never judged by tribunals for what they do. A war crimes tribunal that tries only middle ranking officers, soldiers, and politicians is not as effective as one that tries the mastermind behind the crimes. The trial of Slobodan Milosevic offers some hope for the future of tribunals. However, if Milosevic is acquitted, that will support another argument against tribunals: often the legal system actually helps the accused avoid punishment. Insufficient evidence, unclear testimony, unsure witnesses, and the inability to directly link crimes with individuals due to chains of command are all factors that can lead to war criminals walking free, with full grace of the court.
Another criticism of war crimes tribunals is that they do not alleviate the underlying causes of the conflict. In fact, tribunals can escalate conflict, especially in a multi-ethnic society. In cases of genocide, those accused of war crimes are usually all from one ethnic group. To this group, a war crimes tribunal can appear to be a trial against their ethnicity, not just an individual from their group. This is especially true when the judicial system fails to fairly represent the whole society. For example, Rwandan Hutus accused of killing Tutsis would doubt in the possibility of a fair trial if only Tutsis were running the tribunal. Other Hutus, including those not accused, would likely feel the same way. Thus the war crimes tribunal could act as a wedge driving the two groups further apart.
This idea leads to another complaint about war crimes tribunals: that they are ineffective in transforming a fractured society into one of stability and peace. Following the end of apartheid in South Africa, the Rev. Desmond Tutu argued against a war crimes tribunal, pushing instead for a truth and reconciliation commission. He believed that no reconciliation or transformation was possible if the accused were not forgiven. War crimes tribunals necessarily demonize individuals and sometimes whole groups, further separating parties, instead of building peace.[3]
Possibly the most powerful argument against war crimes tribunals is that they offer only the victors justice. What was most obviously missing following World War II was not Hitler at Nuremberg, but a trial for Americans, French, British, and Russian individuals who committed acts that would have been considered war crimes had the Allies lost the war. The fire bombing of Dresden and the use of atomic weapons on Hiroshima and Nagasaki are clear examples of acts for which Allied leaders would have been tried had the war ended in favor of the Germans and Japanese. While it is easy and satisfying to put the enemy in prison for what he or she has done, it does not seem entirely fair if all those who participate in a war are not held to the same standards. In fact, one of the reasons that the United States has so far failed to support an international war crimes tribunal, the International Criminal Court, is fear that U.S. officers would be found guilty by the court. The United States also fears that this Court could be used for political revenge against the world's only superpower.
The Creation of an International Criminal Court
Sarah Cobb describes the importance of framing values clearly in one's narratives.
The International Criminal Court (I.C.C.) was officially established on July 1, 2002, and is located in The Hague, The Netherlands. However, all of the world's nations have not ratified the Rome Statute of the I.C.C., the document outlining the purposes, capabilities, and restrictions of the I.C.C. In fact, the United States, Russia, and Japan are among the major industrialized states that have yet to ratify this document. However, a sufficient number of nations have ratified the Rome Statute, and in accordance with its rules, the court now officially exists.
A key component of the I.C.C. is that only war crimes committed after the I.C.C.'s establishment can fall under its jurisdiction. Another aspect is that only those nations that ratify the document will fall under its jurisdiction. In general, the I.C.C. will have jurisdiction over crimes brought to its attention by outside parties or by its own investigators. The I.C.C. will not replace national tribunals, but will complement them by offering an arena for hearing claims that may be too complicated or extensive for a national court.[4]
One could argue that until all of the nations of the world ratify the Rome Statute, the Court cannot truly be considered an international criminal court. However, the establishment of the Court is a significant step toward the creation of an international system of war crimes justice.
[1] Bass, Gary Jonathan. Stay the Hand of Vengeance: The politics of war crimes tribunals. (Princeton: Princeton University Press, 2000)
[2] Kritz, Neil J. Transitional Justice: How emerging democracies reckon with former regimes. (Washington: USIP, 1995)
[3] Tutu, Desmond Mpilo. No Future Without Forgiveness. (New York: Doubleday, 1999)
[4] Rome Statute of the International Criminal Court. (United Nations, 1999-2002) [on-line] Available from http://www.un.org/law/icc/statute/romefra.htm. Accessed on January 30, 2002.
Use the following to cite this article:McMorran, Chris. "International War Crimes Tribunals." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder. Posted: July 2003 <http://www.beyondintractability.org/essay/int_war_crime_tribunals/>.
Sources of Additional, In-depth Information on this Topic
Additional Explanations of the Underlying Concepts:
Online (Web) Sources
Brahm, Eric. "Burying the Past: Making Peace and Doing Justice After Civil Conflict -- Summary." Conflict Research Consortium, 2000. Available at: http://www.beyondintractability.org/booksummary/10047/.This is a summary of Nigel Biggar's "Burying the Past: Making Peace and Doing Justice After Civil Conflict."Brahm, Eric. "Closing the Books: Transitional Justice in Historical Perspective -- Summary." Conflict Research Consortium, 2000. Available at: http://www.beyondintractability.org/booksummary/10185/.This is a summary of Jon Elster's "Closing the Books: Transitional Justice in Historical Perspective."Brahm, Eric. "Confronting Past Human Rights Violations: Justice vs. Peace in Times of Transition -- Summary." Conflict Research Consortium. Available at: http://www.beyondintractability.org/booksummary/10029/.This is a summary of Chandra Lekha Sriram's "Confronting Past Human Rights Violations: Justice vs. Peace in Times of Transition"Facing History and Ourselves. Available at: http://www.facinghistory.org.This organization is based around helping people to understand the present and future by educating them about the past. It seeks to develop programs that would allow students to think critically about the past by emphasizing morality in history. The website has links to new articles discussing current world events and also provides resources for understanding these events. There are also resources like academic articles, films, books, and teaching tools provided at this site.International Criminal Court Fact Sheet. United Nations. Available at: http://www.un.org/News/facts/iccfact.htm.This United Nations site includes a helpful list of frequently asked questions about the ICC as well as a video of the press conference announcing the formal establishment of the Court. Nuremberg War Crimes Trials. Available at: http://www.yale.edu/lawweb/avalon/imt/imt.htm.This site offers a comprehensive list of documents related to the Nuremberg war trials.Smith, Charles Anthony. "The Primacy of Politics: Justice, Power, and War Crimes Trials." Online Journal of Peace and Conflict Resolution, Vol. 2, No. 3 , 1999Available at: http://www.trinstitute.org/ojpcr/2_3smith.htm.This online article discusses the purposes behind war crimes tribunals, namely political trials versus trials seeking justice.Cassette, Jacquie. "Towards Justice in the Wake of Armed Conflicts?: The Evolution of War Crimes Tribunals." African Security Review, Vol. 9, No. 5/6 , 2000Available at: http://www.iss.co.za/Pubs/ASR/9No5And6/Cassette.html."This article traces the history and development of war crimes tribunals in the context of the development of international criminal law, with the emphasis on the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda, and in hopeful anticipation of the establishment of a permanent international criminal court." "War Crimes Tribunals/Truth Commissions." , 2002Available at: Click here for more info."International or domestic war crimes tribunals and domestic war crimes trials investigate and prosecute war crimes and genocide where massive violations of human rights have been perpetrated, usually by military, para-military and political organizations associated with a government, often having incited civilians to participate in the violations. Commissions of inquiry and truth commissions investigate and publish war crimes and genocide." This page includes all the pertinent information regarding war crimes tribunals and truth commissions as tools in conflict prevention and resolution.
Offline (Print) Sources
Biggar, Nigel, ed. Burying the Past: Making Peace and Doing Justice after Civil Conflict. Washington, DC: Georgetown University Press, March 2001. This is a collection of essays drawn together by Nigel Biggar (Professor of Theology at the University of Leeds) that explores the challenges of establishing democracy after a period of violent and prolonged civil conflict. Relationships within the populace must be restored so that reprisals and revenge do not undermine or subvert emerging democratic processes. Click here for more info.Elster, Jon. Closing the Books: Transitional Justice in Historical Perspective. Cambridge: Cambridge University Press, September 6, 2004. This books examines historical examples of the process of transitional justice. It discusses how different countries have dealt with the fall of regimes, war criminals, and moving past the memories of conflict. Click here for more info.Sriram, Chandra Lekha. Confronting Past Human Rights Violations: Justice vs. Peace in Times of Transition. New York: Frank Cass, 2004. This book challenges transitional justice literature, which aruges that in a period of transition governments much choose between ensuring peace and attaining justice. This Sriram believes that there is a peace and justice continuum and rather than putting the two in competition with each other. Click here for more info.Akhavan, Payam. "Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?." American Journal of International Law 95:1, January 2001. Akhaven looks at the "determinate causes" of large-scale violence and determines that, despite an "inverted morality [that] has elevated otherwise 'deviant' crimes to the highest expression of group loyalty," international stigmatization of criminal conduct may have significant influence and promote post-conflict reconciliation.Weiss, Thomas G. and Don Hubert. "The Responsibility to Protect: Supplementary Volume to the Report of the International Commission on Intervention and State Sovereignty." Canada: International Development Research Centre, 2001. This book draws an important link between liberal democracies and the legalist use of war crimes tribunals. It offers case studies of the most historically significant war crimes tribunals.Transitional Justice: How Emerging Democracies Reckon with Former Regimes: General Considerations - Vol. 1. Herndon, VA: United States Institute of Peace Press, September 1, 1995. This volume (first in a series of three) is a compilation of works published elsewhere on the idea of transitional justice. The overall goal of the volume is to compile the many lessons learned by emerging democracies trying to use the rule of law to reckon with the atrocities of their national pasts.
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Examples Illustrating this Topic:
Online (Web) Sources
van Metre, Lauren. Dayton Implementation: The Apprehension and Prosecution of Indicted War Criminals. United States Institute of Peace (USIP). Available at: Click here for more info.This report summarizes the recommendations of the USIP Working Group on Dayton Implementation regarding the apprehension and prosecution of war criminals in the former Yugoslavia. Prosecution must be one of the first steps in U.S. policy, since community development and reconciliation cannot begin until such justice has occurred.Wald, Patricia M. "Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal." Yale Human Rights & Development Law Journal, Vol. 5 , 2002Available at: Click here for more info.This article argues that convictions, if they are to be legitimate, must be based on credible evidence presented in a public trial. The conflict between the right of an accused to a public trial and the exceptional pressures on victim witnesses of war crimes is omnipresent in ICTY trials.Fourth Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda. Available at: http://www.un.org/ga/54/doc/tcir.pdf.The report addresses the activities of the Tribunal, including four judgments passed. The first of these was the first conviction for genocide ever delivered by an international court in the case of Prosecutor v. Jean Paul Akayesu.Institute for War and Peace Reporting (IWPR). Available at: http://www.history.com/.IWPR pioneers cross-community editorial projects that supports the independent press in regions in transition and informs the international debate on conflict. The focus of the Institute is on the Balkans, the Caucasus, the Central Asian states, Eastern Europe, and the former Soviet Union. They publish WarReport, and offers electronic reporting and monitoring services via the web or email. This site is searchable and has an excellent list of links.Kritz, Neil J. Rwanda: Accountability for War Crimes and Genocide. United States Institute of Peace (USIP). Available at: http://www.usip.org/pubs/specialreports/early/rwanda1.On September 16, 1994, the USIP convened a meeting to explore options for dealing with war crimes and genocide in Rwanda. Many of the options proposed at the conference were incorporated into a UN Security Council resolution on November 8, 1994, establishing a tribunal for Rwanda. This report contains in-depth analysis of these options in the context of the resolution and makes recommendations for enhancing the effort to bring perpetrators of atrocities in Rwanda and neighboring countries to justice.Dunn, James. "The Indonesian Tribunal: A Matter of Justice or Political Diversion?." Foreign Policy in Focus , August 30, 2002Available at: http://selfdetermine.irc-online.org/crisiswatch/0208timor.html.This article discusses the Indonesian war crimes tribunal investigating events in East Timor in 1999. The author questions whether the tribunal has any real power to convict those who perpetrated the crimes, and if those convictions will stand. He also addresses the possibility that the tribunal is little more than a political stunt, with no real intentions of punishing those who committed the war crimes.
Offline (Print) Sources
Magnarella, Paul J. Justice in Africa, Rwanda's Genocide, Its Courts, and the UN Criminal Tribunal. Aldershot: Ashgate Publishing Company, February 1, 2000. This book outlines the historical background leading up to the Rwandan genocide of 1994, as well as the subsequent establishment of a UN-sponsored International Criminal Tribunal for Rwanda in Arusha, Tanzania, designed to deal with the atrocities. The resource includes a discussion of the criticisms that followed the Tribunal's establishment.Tutu, Desmond Mpilo. No Future Without Forgiveness. Doubleday, 2000. Desmond Tutu's book outlines the reasons why South Africa preferred a truth and reconciliation commission to a war crimes tribunal. The most compelling reason is that reconciliation is easier following forgiveness and that reconciliation is most important for a nation wishing to build peace from such a negative pastReconciliation via the War Crimes Tribunal?. Aldershot, England: Ashgate Publishing Ltd, 2000. Critical examination of the International Criminal Tribunal for the Former Yugoslavia Click here for more info.Bass, Gary Jonathan. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton and Oxford: Princeton University Press, 2000. Comprehensive study of the history of war crimes tribunals. He argues that the vigor with which war criminals are pursued is directly related to the degree to which troups from liberal democracies will be in harms way in apprehending criminals. Has chapters on St. Helena, Leipzig, Constantinople, Nuremberg, and Yugoslavia.
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Audiovisual Materials on this Topic:
Offline (Print) Sources
The Court. First Run Icarus Films. 1982. This film uses case studies to show now the International Court of Justice deals with countries and their leaders, when they commit unjust humanitarian acts. Click here for more info.The Pinochet Case. Directed and/or Produced by: Guzman, Patricio. First Run Icarus Films. 2001. This film follows the international criminal case against Augusto Pinochet of Chile. Click here for more info.Yellow Wasps: Anatomy of a War Crime. Directed and/or Produced by: Ziv, Ilan. First Run Icarus Films. 1995. This film questions whether justice can be found today in a world of global politics, as it monitors the Serbian war crimes trial against the Serbian paramilitary group know as the Yellow Wasps who were involved in atrocities of ethnic cleansing, and who received light sentences for their actions. Click here for more info