A special United Nations diplomatic conference created a standing International Human Rights Tribunal on July 17, 1998 under the terms of The Rome Statute of the International Criminal Court (ICC). The preamble to the statute identifies its purposes as the establishment of an independent and permanent tribunal with jurisdiction over human rights violations of "the most serious crimes of concern to the international community." Should it be ratified by the requisite number of states, the statute will grant specific jurisdiction over the following: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression (Preamble, article 5).
The value of such a standing tribunal has been debated at least since the prosecution of war crimes after World War II (U.N. General Assembly Resolution 260, 9 Dec 1948) and continues to be the subject of fervent international debate. Advocates of a standing tribunal argue that it would serve the ends of justice through the elimination of selective prosecutions and the maintenance of a speedier process. Neier sees such an institutionalized structure as critical for the advancement of international human rights protection (252-260). Opponents argue such a tribunal would threaten the sovereignty of nations, would be subject to political manipulation, and is procedurally unworkable. Moreover, they argue that justice is served better through ad hoc tribunals tailored to specific situations. Each side maintains that their way best provides for deterrence and punishment. The debate assumes that a critical question has been answered: whether human rights tribunals are instruments of justice or politics. This analysis will consider various ad hoc tribunals to assess whether they are by nature political or juridical and whether justice is indeed their primary purpose.
In the fifty years since the trials of Nuremberg and Tokyo, the prosecution of the perpetrators of human rights violations on an ad hoc basis has come to be expected by the international community after the resolution of any conflict that gives rise to these types of acts. In contrast to a permanent court, these prosecutions take the form of trials or "tribunals," which have had various procedural rules and jurisdiction over varying crimes. The purpose of the tribunals is the establishment or reimplementation of justice.
The advocates of such trials argue that the redress of human rights violations is an integral part of the restoration of justice after the cessation of conflict. The prosecutions are conducted either domestically or through an international structure and normally involve the prosecution of individuals who acted on behalf of a governmental entity during the conflict. Typically, some element of force against civilians by the agents of government underlies the wrongs alleged. Moreover, the wrongs are of a category claimed to be universally abhorrent, such as those identified in the ICC statute. The case by case method of constructing human rights tribunals has been criticized by many as flawed justice (Africa 2000, appendix 2). Specifically, the ad hoc tribunals are accused of selective "justice" and an inefficiency of operation that subverts their purpose (Ibid.). Indeed, U.N. Secretary General Kofi Annan has stated only "in the prospect of an international criminal court lies the promise of universal justice . . ." (Ibid.).
The question remains as to whether human rights tribunals, either ad hoc or standing, are actually products of the high call to justice, as is argued by their advocates, or simply a product of political processes. That human rights tribunals are juridical rather than political has yet to be established by their advocates. Perhaps not surprisingly, those who complain that any specific tribunal is politically motivated typically stand before it accused. Because the motives of the accused in the role of systemic critic must be suspect, little attention has been given to the question of the nature of these tribunals.
Whether the purpose of the trials is justice or the appeasement of various political factions can be examined through an analysis of the degree to which justice was served by the implementation of the trials. In order to examine the relative degree of "justice" among the various trials, some definition of justice must first be proposed. Although justice has come to be thought of as something more noble than politics, the foundations of a jurisprudence that supercedes the political machinations of the law are soundly rooted in political discourse. The discourse has resulted in a notion of justice as a product of substantive and procedural due process seeking the dual goals of deterrence and retribution. Likewise, if the trials are political in nature, some definition of "political" must be proposed in order to explain the dynamics that give rise to the trials.
The shifts in political power that precede the initiation of human rights tribunals vary in their degree of upheaval. That is, those who come to be in charge have control over the institutions of their government to varying degrees. Some shifts are complete and those in power have little concern regarding their treatment of the perpetrators of the violations as the accused no longer have any meaningful political power. This situation arises when a total military victory has occurred. Some shifts are complete yet unstable and the maintenance of power is dependent on the continued suppression of those no longer in power. This occurs when the vanquished maintain some ability to resurrect a political base. Some shifts are incomplete and those with new power are dependent on those with old power for some critical aspect of the maintenance of power. This is typical when those who have lost power still control some necessary element of governance, such as the financial infrastructure or portions of the military. Some shifts are indeterminate and result in something akin to a balance of power among competing factions. Balance arises where the end of the conflict is brokered rather than achieved by one party through political or military means.
Given the various ways in which conflicts end and power is obtained, the degree of justice achieved in human rights tribunals may be a function of the political expediency of those who come to power rather than an abstraction of a universally recognized goal. The trials conducted in the following seven instances are considered as case studies: the trial of Charles I, the Nuremberg trials, the Tokyo trials, the Dirty War Trials in Argentina, the South Africa Truth and Reconciliation Commission, the Human Rights Trials of Rwanda, and the Bosnia Human Rights Commission. The recent peace accord in Northern Ireland, despite its absence of a provision for trials of this sort, is also considered.
For each case, the paper describes the political context of the trials. Indicators of the extent to which each case approached justice include the degree to which substantive and procedural due process were present and the degree to which retribution and deterrence were the goals of the process.
The paper then compares the distribution of political power to the degree of justice achieved. The comparison will help establish whether the degree of justice achieved is a function of political balance. The analysis also addresses whether human rights tribunals serve a legitimate political purpose beyond the confines of justice. An additional section assesses the Rome Statute's potential ability to depoliticize the prosecution of war crimes. The conclusion addresses the limitations of the analysis and suggests additional research.
The Evolution of Justice and the Concept of Law
Modern Western jurisprudence, or the philosophy of law, has its origins in Plato's dialogues (Hall, 6). Many consider the first imperative of the philosophy of law to be the notion of justice (Ibid.). In this view, justice is seen as a determination of the morality, or the "rightness," of the treatment of the citizenry by its government through the enactments and decisions of the government. Accordingly, the question of what acts deserve to be categorized as "just" has persistently arisen in the discourse of politics (Ibid.).
In The Politics, Aristotle opined that "in seeking justice they are seeking impartiality; for law is impartiality" and "justice is held by all to be a certain equality" (Aristotle, 114 and 103). Justice, then, begins with the idea of equal treatment. St. Augustine considered justice to be a prerequisite to legitimate governance and the valid rule by law when he observed that states without justice were "but robber-bands enlarged" (Hart, 152).
St. Thomas Aquinas expanded the definition by introducing the notion of continuity to justice. His definition of justice as "a habit whereby a man renders to each one his due by a constant and perpetual will" suggests that, with justice, right and wrong remain the same over time and circumstance (Aquinas, pt II, 2 dpt., qu.58, art. I). Locke builds on both ideas by identifying a nonarbitrary aspect of justice that dictates that all be accorded the same treatment in a predictable fashion: "the legislative . . . authority cannot assume to itself a power to rule by temporary arbitrary decrees, but is bound to dispense justice . . . by promulgated standing laws, and known authorized judges" (Locke, Bk. II, ch. xi, sec. 136). Hart recognizes the manifestation of these ideas in the modern notion of justice by noting: "a uniform or constant feature, summarized in the precept 'Treat like cases alike' and a shifting or varying criterion used in determining when . . . cases are alike . . ." (Hart, 156).
The type of justice provided for by human rights tribunals is what Locke would designate as commutative justice (Bodenheimer, 26). That is, corrective justice or justice that concerns "the dealings of individuals with one another and the adjustments to be made in case of the performance of illegal or improper acts" (Ibid.). This is distinct from distributive justice, which addresses the allocation of goods and things among individuals (Locke, pt. II, 2d pt., qu. 63, art.1).
The nonarbitrary nature of corrective justice manifests itself in two ways: substantive due process and procedural due process. Substantive due process entails resolving what is a crime while procedural due process entails resolving how the crime is to be prosecuted. Jeremy Bentham distinguishes the two as follows: substantive law is "principal" while procedural law is "adjective" (Postema, 342). Postema explains this distinction by suggesting that procedural law is "adjective" in two ways. First, adjective law is dependant on substantive law for its intelligibility just as the adjective is dependant on the noun. Second, adjective law modifies substantive law. Hence "the law of procedure exists only for the sake of giving efficacy ('execution and effect') to substantive law" (Postema, 342). The end of the procedural law is to secure the proper execution of the substantive law (Ibid.). Put more colloquially, the substantive law answers questions of "what" while the procedural law answers questions of "how." The purpose of both the substantive and procedural law is to facilitate "the direct end of justice: rectitude of decision"; that is, the end of justice is to achieve the right result (Postema, 348).
Locke's corrective justice, construed as criminal law, is something akin to Hart's concept of a simple model of a coercive order (Hart, 41). "The order backed by threats is essentially the expression of a wish that others should do or abstain from doing certain things" (Ibid.). The function of such orders can be split into two distinct goals: deterrence and retribution. The purpose of the threat of a sanction is first to deter those who would disregard the order and second to punish those who do, in fact, disregard the order (Bodenheim, 161-231).
The extent to which any particular human rights trial or tribunal achieves something approaching "justice" can be determined by a study of the two predicate prongs and two goals of justice: the prongs of substantive due process and procedural due process, and the goals of deterrence and retribution. The question of substantive due process involves the range of crimes and the identities of the accused - that is, the "what." The question of procedural due process involves the manner in which the trials are conducted, including whether there is a predetermined outcome, a right to a defense, and a right of appeal - that is, the "how." The question of deterrence involves whether prospective wrongdoers are placed on sufficient notice of the potential consequence of their actions to dissuade them from replicating the crimes at issue. The question of retribution involves the degree to which the perpetrators are punished and the victims are made whole.
Each tribunal examined here was initiated by some official declaration of the search for justice. The parameters of both substantive and procedural due process were set forth in the initiating declaration. Though stated in a variety of ways, deterrence and retribution were set forth in each case as the explicit goals of each tribunal. While each case is fact specific and therefore unique, the tribunals are more alike than they are different. Moreover, the processes by which the tribunals are derived exhibit the immutable characteristics of politics.
Politics and Power
Before assessing whether the tribunals are indeed political in nature, some definition of "political" must be embraced. Weber opined that politics is a realm of power and violence (77-78). The state, according to Weber, enjoys a monopoly over the legitimate use of force - i.e., power - within its jurisdiction (Ibid., 78). Blais has suggested that the "study of power is the study of politics" (45). Lasswell and Kaplan argue that the study of the political is the "study of the shaping and sharing of power" (xiv).
To define what is political with the concept of power presents the dilemma of defining power. James has commented cynically that the popularity of power as a concept is due to its sloppy nature (47). Lending support to James, Kaufman and Jones wrote of power: "we 'know' what it is, yet we encounter endless difficulties in trying to define it" (205). Partridge is even more discouraging when he confesses that power "is a concept . . . too amorphous, sprawling or chameleon-like ever to be amenable to exact identification . . ." (107).
Rather than abandon the notion of power as too vague or broad to provide a useful explanation of any phenomena, an understanding of power (as politics) as it applies to the human rights tribunals can be constructed for the limited purpose of this analysis. In The Metaphysics, Aristotle defined power in a relational fashion as the beginning of a change or movement (Clegg, 41). Hobbes also construed power in a relational fashion. Hobbes' fictional ruler served to end the oscillation between the disorder of the state of nature and the order of Leviathon. The legitimate dominion of one supreme ruler over the individuals represents the penultiment in Hobbes' concept of power: the ruler is power (Clegg, 26-36; Parenti, 3-4).
The Hobbesian notion of power as dominion or control has been expanded to encompass casual relationships. As Simon put it, "for the assertion 'A has power over B' we can substitute the assertion 'A's behavior causes B's behavior'" (5). Dahl (1963, 41), March (437), and James (50) all concur in this causal analysis while McFarland has boldly stated there is "considerable agreement among political theorists that the power relation is a type of causality relation" (34). Riker goes even further by arguing that "power is potential cause" (347).
Gibson rejects the purely causal definition of power and equates it with freedom. That is, one has power to the extent there is nothing to prevent one from behaving in the manner one chooses (107-108). Partridge views power as the present ability to produce effects in the future (116). Lukes ponders "is it not the supreme exercise of power to get another . . . to have the desires you want them to have . . .?" (23).
Laswell's analysis begins with the assertion that the function of government is power (Laswell, 6). By power, he means the "making of important decisions and the importance of the decisions is measured by their effect on the distribution of values" (Ibid., 7). "Values" are those things desired by individuals such as income and safety (Ibid.). Laswell measures the power of individuals and groups by their "degree of participation in the making of important decisions" (Ibid.). Thus, to Laswell, the study of politics and power is the study of influence and the influential (Ibid.). Dahl has acknowledged this notion of influence and concluded "the making of governmental decisions is not a majestic march of great majorities united upon certain matters . . . it is the steady appeasement of relatively small groups" (146).
The degree to which the trials examined are political can be measured by considering the extent to which they serve to consolidate power. That is, the extent to which they expand the influence of those conducting the trials or appease some group upon which those conducting the trials rely. If the trials are shown to be useful in consolidating power, then the question must be asked whether the purpose of the trials is justice or the consolidation of power. Moreover, the two goals of justice and consolidation of power may not be mutually exclusive, although they may compete for primacy of purpose. Perhaps more interest in justice means less in power and more interest in power means less in justice.
Each case study will compare the degree to which justice was served
through the tribunals as well as the degree to which political ends were
served. The cases are addressed chronologically because each subsequent trial
has had the benefit of the experience of previous trials. The purpose of this
analysis is not, in any fashion, to serve as a defense of those perpetrators of
human rights violations who invariably stand as the accused. Rather, the
purpose is to determine if more complete justice can be achieved through a less
The Case Studies
The Trial of Charles I
The trial and execution of Charles I of England occurred in January of 1649. While the case of Charles I may not immediately invoke images of the redress of human rights violations, a review of the enabling legislation and transcripts reveals that it is conceptually indistinguishable from the more recent examples which will be considered.
Charles I ascended to the throne of England in 1625 to a perpetually difficult relationship with Parliament. Over a thirteen year period, the King requested funds for wars against Scotland and Ireland three times. Twice Parliament provided limited funds in exchange for his agreement to measures that limited the power of the throne. The third time Parliament refused to provide funds under any circumstances.
In response to Parliament's rebuke, the King appeared in the House of Commons with armed forces to arrest several members. He failed at this attempt and so outraged the public and the Parliament that he was forced to flee.
Civil war erupted. The King's loyalists, the Cavaliers, were pitted against the Parliament's supporters, the Roundheads. Once the Roundheads had gained an advantage, a split occurred between Parliament and its Army. Thomas, Lord Fairfax led the Parliamentarians who favored a constitutional monarchy with shared power among the Parliament and the King. Oliver Cromwell led the Army on behalf of the Independents who favored a much weaker King with no constitutionally provided power (Williamson, 15-17; Wingfield-Stratford, 3-11).
Once Cromwell's Army was in de facto control of England, the constitutional issue that dominated the political discourse concerned the basis of government. The competing factions sought either to rule by a modified version of the traditional way - in essence, Parliament as it was without a powerful King - or by a single House of Parliament elected biennially with no regard to property ownership as a requisite to suffrage (Williamson, 18). The latter contemplated a "constitutional levelling" that would disperse power among the citizens with no regard for their wealth or standing. The Levellers were led by Colonel Thomas Rainsborough.
Cromwell opposed the plan of the Levellers. The rivalry of Cromwell and Rainsborough was as intense as their two visions of governments were irreconcilable. In the fall of 1647, Rainsborough reportedly sneered to Cromwell, "One of us must not live." The assassination of Rainsborough in October of 1648 made Charles' execution three months later "inevitable" (Ibid.).
In essence, as long as Rainsborough was alive and leading the left, Cromwell worked for the restoration of the King to an albeit eviscerated throne. While Cromwell was no fan of the monarchy, his faction was insufficiently large to maintain power without alignment with one of the other groups. Cromwell aligned with Fairfax against Rainsborough to seek some form of constitutional Royalism. Once Rainsborough was dead, Fairfax perceived Cromwell as the only threat to his power and their alliance became less stable. Now threatened by Fairfax, Cromwell felt he had to adopt the policy of the destruction of the monarchy to create an alliance with the leaderless Levellers (Williamson, 18-21).
Two circumstances made Cromwell's decision to abandon a resurrected monarchy easier. Charles, famous for his duplicity, was doomed by his efforts at deceiving Cromwell (Williamson, 19; Wingfiled-Straton, vii; Wedgewood, 4). While Charles negotiated with Cromwell during the Hampton Court negotiations, he wrote to the Queen of France to assure her he had no intention of honoring any agreement reached and, indeed, intended to hang Cromwell at his earliest convenience. Cromwell intercepted that letter and abandoned any effort at a monarch-restoring resolution to the conflict.
The more serious circumstance was the engagement by Charles of the Scottish to invade England. The engagement empowered the Scottish to use "all possible measures for suppressing the opinions and practices of Independents and all such doctrines and practices as are contrary to the light of nature or to the known principles of Christianity" (Williamson, 20). In exchange, the Scottish were promised admission to the English Privy Counsel and one third of available patronage positions once the monarchy was restored (Ibid.). The effort by Charles to "establish Presbyterianism at the point of Scottish swords as the State religion of England" was an unforgivable act to Cromwell and the Army (Ibid.). To Cromwell, the Scots were foreigners. The act of engaging the Scottish army to invade England was, Cromwell wrote, "a more prodigious Treason than any that had been perpetrated before" because it was meant to "vassalize us to a foreign nation" (Ibid., 21). In the end of November 1648, Cromwell decided to kill the King as a "cruel necessity" (Ibid., 22). That is, the death of the King was a prerequisite to Cromwell's consolidation of power.
To allow the King to live was out of the question. As one supporter of Cromwell stated, "though we defeat him one hundred times, he is still the King" (Ibid.). While Cromwell had effectively seized power, a resurrected monarch was just a shift in public support away.
In an effort to legitimize his overthrow of the King, Cromwell disregarded the long history of tyrannicide in Europe in favor of a new concept: that of the trial of a sitting monarch at law (Mayfield, 34-38). The appeal to the rule of law by the Independents was a mechanism for the implementation of the style of government that they desired. Specifically, if even the monarch was subject to law, then the law would be supreme. Simply killing the King would leave the notion of the monarchy intact while a prosecution would strip the office of its divine aura and repeal the law that the King can do no wrong (Ibid. 37-40).
That the trial of Charles I was something akin to modern human rights trials seems clear. The trial arose after the conclusion of a conflict for the nominal purpose of redressing the wrongs of the captured. The King's crimes of murdering civilians, torture, and involuntary conscription are well within the range of crimes considered by modern tribunals. If the trial is roughly equivalent to a modern human rights trial, then the question becomes one of whether justice was served. The presence or absence of justice in the proceeding can be illuminated by an examination of the procedural and substantive due process of the trial as well as a review of the degree to which deterrence and retribution were the goals of the trial.
On January 1, 1649, the remains of the House of Commons approved an ordinance calling for the trial of Charles I because
Charles Stuart hath acted contrary to his trust in departing from the Parliament, setting up his standard, making a war against them, and thereby [hath] been the occasion of much bloodshed and misery to the people . . . that he gave commissions to [foreign] rebels . . . [and] what he has done contrary to the liberties of the subject and tending to the destruction of the fundamental laws and liberties of this kingdom . . . (Lagomarsino and Wood, 1-3, 15-16).
After approval of the ordinance calling for the King's trial for what amounted to treason, the Commons declared that " . . . it is treason for the King of England for the time being to levy war against the Parliament and Kingdom of England" (Ibid., 17). The previous notion of treason entailed threatening the well being of the King. Obviously, the King could not be deemed to have committed treason under the prior law short a showing of attempted suicide or reckless endangerment of himself (Wedgewood, 6).
When the House of Lords refused to concur in the prosecution ordinance, the commons decided to proceed without them and passed another ordinance that declared anything passed by the House of Commons "hath the force of law, and all people of this nation are included thereby, although the consent and concurrence of King or House of Peers (Lords) be not had thereunto" (Ibid., 2, 22-23).
Having rewritten the law of treason and declared itself the supreme power in England, the commons passed another ordinance calling for a "High Court of Justice for the Trying and Judging of Charles Stuart, King of England" (Lagomarsino and Wood, 24-26). The ordinance asserted in part:
Whereas it is notorious that Charles Stuart, the now King of England . . . hath had a wicked design totally to subvert the ancient and fundamental laws and liberties of this nation, and in their place to introduce an arbitrary and tyrranical government, and that besides all the other evil ways and means to bring this design to pass he hath prosecuted it with fire and sword, levied and maintained a cruel war . . . against Parliament and kingdom whereby the country has been miserably wasted . . . Thousands of people murdered, and infinite other mischiefs committed . . . (Ibid.).
The ordinance set forth the existence and membership of the High Court and bestowed upon it the jurisdiction of "hearing, trying, and adjudging of the said Charles Stuart" (Ibid.).
The King's trial is problematic from a substantive due process standpoint. While the crimes alleged seem consistent with notions of human rights violations, the post hoc redefinition of treason taints the proceeding with an air of expediency. That the tribunal was constructed to try one specific criminal indicates no other wrongs were committed, an implausible assertion, or that the tribunal was more concerned with the specific criminal than the crimes at issue.
Procedurally, the trial fairs even worse. The procedure set forth entailed charging Charles, taking his answer, examining witnesses under oath or "otherwise," taking any other evidence, "thereupon" (or in the case of default) proceeding to "final sentence according to justice and the merit of the cases," and the prompt execution of the sentence (Ibid.). Since the crime of treason was enacted by statute in England in 1352, the law had never allowed the accused to have counsel (Lagomarsino and Wood, 6). The procedure for the trial of the King provided no mechanism for appeal, reconsideration, or pardon. The commissioners and judges of the court were the only participants to be empowered to call witnesses or present evidence. Thus, Charles faced his accusers without counsel, the benefit of a defense, the right of cross examination, or the ability to appeal the decision in any way.
Charles was brought before the High Court and the formalized charge was read (Lagomarsino and Wood, 61-64). The specific crimes charged included causing:
many thousands of the free people of this nation to be slain . . . invasions from foreign parts . . . procured by him . . . By which cruel and unnatural wars by him . . . levied . . . much innocent blood of the free people . . . Hath been spilt . . . By all which it appeareth that he . . . is the occasioner, author and continuer of the said unnatural, cruel and bloody wars, and therein guilty of all the treasons, murders, rapines, burnings, spoils, desolations, damage and mischief to this nation . . . " (Ibid., 62-63).
It is as if the Court sought to become an instrument of justice simply by repeating the mantra of injustices perpetrated by the accused.
The King responded to the charge not with an answer but with a question as to the authority by which the Court purported to judge him (Ibid., 64). The King said, " . . . let me know by what lawful authority I am seated here and I shall not be unwilling to answer . . ." (Ibid.). After a long exchange, which never progressed past the King's argument that the procedure was not lawful, the Court returned the King to confinement and recessed.
Even if the substantial argument of an absence of jurisdiction somehow could be overlooked, the King was unrepresented and was prohibited from introducing any evidence against the charges. His participation in the proceeding was limited to his answer - in essence a plea without evidence.
Meeting in private, the members of the Court considered the King's objection to the proceeding and resolved that the King should not be allowed to make his argument again (Ibid., 71).
The members of the Court were specifically concerned with the King's challenge to their ability to make themselves judges and the absence of a mechanism for appeal (Ibid.). The Court ordered that it had considered his complaint and the King should be satisfied it indeed had the authority to judge and sentence him (Ibid.). Moreover, the Court would no longer consider or entertain any challenges to its authority or procedure (Ibid.). While the absence of procedural due process - the heart of the King's defense - threatened the Court's claim to legitimacy, the Court could not provide procedural due process and continue to exercise its clearly unfounded jurisdiction. To abide the due process argument was to acknowledge the absence of a legal right to proceed.
Again the King was brought before the Court and again he challenged its authority (Ibid., 74). The Lord President of the Court answered the King with a demand of submission: " . . . you appear as a prisoner . . . if you . . . dispute the authority of the court, we may not [engage in that argument] . . . you are to submit unto it . . ." (Ibid., 75-76). As the King continued to protest, the Court tried to end his argument: "they have considered . . . their jurisdiction. They do affirm their own jurisdiction" (Ibid., 76). The King again objected, pointing out that the House of Commons never before had been a court of justice. He questioned, "I would know how they came to be so" (Ibid., 77). As the King was not inclined to abandon his argument and answer the charges, the Court ordered that no answer be registered and again returned him to confinement and then recessed (Ibid., 79).
In his speech, which the Court refused to allow him to give, the King asserted "the King can do no wrong" (Ibid., 80). He summed his challenge to the legality of the proceeding as follows: " . . . the law upon which you ground your proceedings must be either old or new. If old, show it; if new, tell what authority . . . hath made it, and when" (Ibid.).
The King argued that the substance of the trial was as vacuous as its jurisdiction. The King defended the acts that formed the basis of the charges as the acts of a patriot. A foreshadow of the "good soldier" defenses of the modern trials, the King argued " . . . by this time it will be too sensibly evident that the arms I took up were only to defend the fundamental laws of this kingdom . . ." (Ibid., 81). In essence, the King argued that there was no authority for the proceedings and the charges against him arose out of his legitimate defense of England.
The King was brought before the Court for a third time (Ibid., 83). The solicitor sought leave of the Court to proceed with the presentation of evidence and, given the truth of the charges, to proceed with judgment (Ibid., 84). "I do humbly pray - and yet, I must confess, it is not so much I as the innocent blood that hath been shed, the cry whereof is very great for justice and judgment - and therefore I do humbly pray that speedy judgment be performed against the prisoner . . ." (Ibid.). The King again attempted to explain his objection to the proceeding under the guise of satisfying the people of England that he defended the ancient laws that were entrusted to him (Ibid., 86-87). The Court declined to indulge him and rebuffed his rhetoric with contempt: " . . . men's intentions ought to be known by their actions. You have written your meaning in bloody characters throughout the whole kingdom" (Ibid., 87). The Court then ordered a default - an admission through nonresponse - be entered against him (Ibid.).
Although the King now stood convicted, the Court took testimony for two days that confirmed the charges (Ibid., 88-100). Witnesses against the King testified they saw him give direct orders to kill civilians, seize property, and hire foreigners to invade England (Ibid.). The King also forced conscription upon the unwilling and persecuted those who would not accept the episcopacy in their churches (Ibid.). Defying his Christian sensibilities, Charles I was answered by the amputation of ears and the mutilation of noses, among other atrocities. (Ibid.). These charges against the King, without exception, fit snugly within the parameters of the more modern human rights trials.
Upon the completion of the presentation of evidence, the court resolved "that the condemnation of the King shall be for a tyrant, traitor, and murderer; that the condemnation of the King shall be likewise for being a public enemy to the Common wealth of England; that this condemnation shall extend to death." (Ibid., 100).
The court met the next day to draft the actual sentence and on the subsequent day the King was returned to the House to receive it (Ibid., 102-111).
After some further assertions by Charles of the Court's lack of jurisdiction, John Bradshaw, the Lord President of the Court, presented his speech prior to sentencing (Ibid., 118-128). Although not given until the end of the proceedings, Bradshaw's speech was a justification of the trial and an attempt to finally respond to the King's allegation of a lack of jurisdiction. Asserting that kings first ruled by the will of the people, Bradshaw argued that "the end of having kings or any other governors is for the enjoying of justice, that's the end" (Ibid., 120). Bradshaw then put future kings and governors on notice, "Now sir, if so be the King will go contrary to that end, or any other governor will go contrary to the end . . . he must understand that he is but an officer in trust and he ought to discharge that trust and . . . the people . . . are to take order for the animadversion [criticism] and punishment of such an offending governor" (Ibid.). Having set forth a warning to others in power that they shall answer to the people if they abuse their power, Bradshaw argued that the purpose of Parliament is retribution for the people. "Sir, Parliaments were ordained for that purpose, to redress the grievances of the people. That was their main end" (ibid, 121). He asserted "if wrong be done by the King . . . justice hath power to reform the wrong . . ." (ibid, 121). He concluded his justification of the general proceeding by proclaiming "let all men know that great offices are sizable and forfeitable . . ." (Ibid., 125). Bradshaw's speech unequivocally sets forth the dual goals of retribution and deterrence.
The King was sentenced (Ibid., 128). The sentence recounted the charges and proceedings and concluded:
For all which treasons and crimes, this court doth adjudge that he, the said Charles Stuart, as a tyrant, traitor, murderer, and public enemy to the good people of this nation, shall be put to death by the severing of his head from his body (Ibid., 109).
On January 30, 1649, the King was beheaded (Ibid., 144).
Despite Bradshaw's claim of action for the purposes of deterrence and retribution, the House of Commons abolished both the monarchy and the House of Lords within one week of the King's execution (Ibid., 144-145). It is nonsensical to suggest Bradshaw and the others in the House of Commons meant to deter themselves from future bad acts and yet, by their conduct, no others existed to be deterred. Retribution ended at the drop of the King's head. That is, no renumeration was provided to the victims of the King's crimes. Both retribution and deterrence seem to ring hollow in the aftermath of the trial.
Though there is some dispute as to the legitimacy of the authorship, Charles addressed the question whether the trial was a political or juridical event in The King's Book, purportedly written during his confinement (Almack ix-xxiii):
My Enemies . . . will, it may be, seeke to adde (as those did who crucified Christ) the mockery of Justice, to the cruelty of Malice: That I may be destroyed, as with greater pomp and artifice, so with lesse pity, it will be but a necessary policy to make My death appeare as an act of justice, done by subjects upon their soveraigne . . . who being sworn and bound by all that is sacred before God and Man, to endeavor My preservation, must pretend to cover their perjury . . . (Ibid., 268).
He challenged the procedural due process when he lamented, "It is, indeed, a sad fate for any many to have his Enemies to be Accusers, Parties and Judges" (Ibid.). He challenged the substantive due process when he reflected "those who have had the chiefest hand, and are most guilty of contriving the publique troubles, must by shedding My bloud seem to wash their own hands of that innocent bloud, whereof they are now most evidently guilty . . ." (Ibid.).
That justice was served at the Trial of Charles I cannot be argued persuasively. The very existence of the trial was a political strategy implemented by Cromwell to enable him to rule. The trial had an ad hoc process designed to result in conviction and a substance comprised primarily of the foregone conclusion of the King's guilt. "Justice" was little more than a verbal window dressing used to conceal the political intent of those in power. Retribution and deterrence were used as excuses to accomplish the true goal of the trial - the death of the King. As Lagomarsino and Wood claim, "Baldly stated, the plain fact was that Charles I had lost a civil war and was therefore made to pay the price for his loss" (2).
The Nuremberg Trials
After the complete defeat of the Axis powers at the end of World War II, the victorious Allied nations agreed to create special tribunals for the purpose of placing on trial some of the significant German and Japanese personnel. Although many war crime trials were held in various occupied territories, including trials of low-level German officers and Russian or French collaborators, the criminal proceedings against 24 high ranking Nazis are those most often associated with the phrase "The Nuremberg Trials." The twenty-four defendants were selected because each was the highest ranking surviving principal within their respected spheres of influence. One defendant was subsequently deemed too ill to stand trial and one defendant committed suicide before the proceedings began (Rosenbaum, 19-20).
This case study addresses only the trial ("Nuremberg Trial") of the 22 Nazis, which occurred from October 18, 1945 through October 1, 1946. The subsequent trials included a trial of various German civilians and lower-level military personnel, the trial in Tokyo, and the trial outside Germany of civilians and military personnel in proximity to the scenes of various wrong doings. The so-called "Subsequent Nuremberg Trials" of civilians and lower-level officers are not considered here as they wereconducted under the same enabling document and procedure as the first. The trial in Tokyo is considered later. The site specific trials are not considered as they are factually distinguishable; that is, the site specific trials were conducted under the auspices of local authority having to do with the violation of local law. These were war crimes trials only in so far as the crimes alleged were committed during war time by military personnel (Rosenbaum, 19; Ginsburgs, 16-22).
In 1945, the Allies agreed to the London Charter that provided for the International Military Tribunal (IMT). The IMT was framed by the United States, Great Britain, the Soviet Union, and France and was presided over by judges from each of the four countries (Smith 1982, 49-56). Justice was to be carried out for the purposes of deterrence and retribution. In a Presidential Memorandum to the Secretary of War dated August 26, 1944, President Roosevelt addressed the purpose of the proposed tribunal:
The fact that they [Germany] are a defeated nation, collectively and individually, must be so impressed upon them that they will hesitate to start any new war . . . The German people as a whole must have it driven home to them that the whole nation has been engaged in a lawless conspiracy against the decencies of modern civilization . . . (Smith 1982, 21).
The goal of deterrence was clearly of primacy to the American architects of the IMT. The United Nations proclamation in 1945 that "those responsible for these crimes (genocide) shall not escape retribution" was likewise embraced by the US Secretary of State (Ibid., 17-20). Indeed, the goal of retribution was reiterated by President Roosevelt in a statement, approved by both Churchill and Stalin, which declared in part, "The United Nations have made it clear that they will pursue the guilty and deliver them up in order that justice be done . . . All who share the guilt will share the punishment . . ." (Ibid., 18-19).
The Allies faced the question of how best to achieve that stated goals of the Tribunal. Specifically, a suggestion by the Soviets that the Nazi generals be summarily executed was rejected by the other Allies who were concerned about worldwide reaction to their treatment of the vanquished (Ginsburgs, 16-20). In a conversation between Secretary of War Stimson and Judge Advocate General Cramer in September of 1944, the following exchange took place:
Cramer: What I want to provide against is any charges of railroading these people.
Stimson: A great many people think that the question of the guilt of some of these people is already decided. I'm taking the position that they must have the substance of a trial . . .
Cramer: I agree with you absolutely (Smith 1982, 26).
Stimson wrote to the President that the method of dealing with the criminals must consist of a well defined procedure and that "such procedure must embody . . . at least the rudimentary aspects of the Bill of Rights, namely, notification to the accused of the charge, the right to be heard and, . . . to call witnesses" (ibid, 30).
The Tribunal was designed to further the ends of justice, retribution, and deterrence, through a fair process embodied by procedural due process in the application of substantive due process. On August 8, 1945, the Charter of the International Military Tribunal was adopted (Ibid., 214). It provided for the jurisdiction and general principles of the IMT:
The following acts . . . are crimes within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) CRIMES AGAINST PEACE: namely, planning, preparing, initiation, or waging a war of aggression . . .
(b) WAR CRIMES: namely, violations of the law or the customs of war . . .
(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population . . . (Smith 1982, 215).
The document thus set forth the specific crimes to be considered - the substantive - and directed the Tribunal to "draw up rules for its procedure" consistent with the Charter (Ibid., 216). The Charter provided for a "Fair Trial for Defendants" in Article 16, which adopted Stimson's argument for rudimentary due process (Ibid., 217-218).
The Charter also provided that the judgement of the Tribunal would be final with no appeal or review possible (Ibid., 219).
At first blush, the Tribunal would seem to be a paragon of justice. Yet, several problems were present from the inception of the idea of an international tribunal. First, the question of jurisdiction was troublesome. Second, enacting punitive laws after the fact was counterintuitive to the international concept of justice.
The Tribunal was created to prosecute allegedly criminal activity after the occurrence of that activity in a sovereign nation (Germany) where it had been considered legal.
The foundation of jurisprudence for the Tribunal was an expanded interpretation of international common law arising out of inter-state relations embodied in treaties and other agreements. Specifically, a violation of the rules of war created a basis for the subject matter jurisdiction (the "what") while the locus of the activity dictated that procedural jurisdiction (the "where") rested in Germany (Rosenbaum, 25-38; Baird, 12-14).
The Defendants filed a joint motion challenging jurisdiction prior to the taking of any evidence (Benton, 27-30). The motion had three components: first, the expansion of international common law apparently to differentiate between just and unjust wars was unprecedented and, hence, invalid; second, the long standing precept of nulla poena sine lege (no punishment without a law) prohibited the application of criminal sanctions in punishment for activities that were declared criminal only ex post facto (after the fact); third, the Defendants objected to one party to the proceeding being all things in one: that is, creator of the statute of the Tribunal, creator of the rules of law to be applied, prosecutor, judge, and aggrieved party (Ibid.).
In the opening statement of the Defendants, their counsel argued "the main juridical and fundamental problem . . . concerns war as a function forbidden by international law; the breach of peace as treason perpetrated upon the world constitution." (Ibid., 31).
Moreover, each Defendant individually objected to the attempt by the Tribunal to hold individuals responsible for the acts of a state (Ibid., 31-75). Defense Counsel argued that even if war was a crime, only the state waging the war could be held responsible, opining "acts of state are acts of man. Yet, they are in fact acts of state carried out by its organs and not the private acts" of individuals (Ibid., 54). The Defense Counsel concluded with an ex post facto argument:
Sentences . . . against individuals for breach of the peace between states would be something completely new under the aspect of law, . . . sentences against individuals for breach of the peace between states presupposes other laws than those in force when the actions laid before the Tribunal took place (Ibid., 74-75).
The IMT rejected the claims of a lack of jurisdiction and the general objections to the proceeding were addressed in Chief Prosecutor (and U.S. Chief Justice of the Supreme Court) Robert Jackson's opening comments:
The Privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to reason (Taylor, 167).
Addressing the unprecedented nature of the proceeding, Jackson asserted:
If these men are the first war leaders . . . to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law . . . this Tribunal, which gives them a hearing, is also the source of their only hope . . . The German no less than the non-German world has accounts to settle with these defendants . . . (Ibid., 168).
In essence, Jackson has explained the nature of the proceeding. The vanquished are provided with the opportunity to plead their case while the victors provide a forum for the world to assert its claims. The alternative to the proceeding is the summary justice suggested by the Soviets. By allowing the world to mete out justice, the Tribunal would stand for a rule of law that would override and invalidate any future nation's claim of right to comparable aggression and brutality. The fairness of the proceeding was paramount. Jackson reflected:
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 lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity's aspirations to do justice (Ibid.).
That the trial was procedurally fair is inarguable. The notion of a "fair" trial was explicitly set forth in the charter of the IMT. The accused were presumed to be innocent unless the evidence present at trial established guilt beyond a reasonable doubt. All accused received a full and detailed explanation of the charges. They were entitled to defend themselves and were provided with counsel of their own choosing. They were entitled to present evidence in their own defense and to cross examine the evidence against them. The proceedings were translated as they occurred into a language the accused could understand. No defendant could persuasively argue he was deprived of a fair trial to the extent a fair trial connotes respect for the rights of the accused, a fair and full defense, and findings of guilt based on evidence (Rosenbaum, 36). Some of the Defense Counsel made public their belief that the trial had been fair (Rosenbaum, 36, fn 68).
That the trial was substantively fair is likewise inarguable if the initial jurisdiction is appropriate. That is, if the Tribunal had the right to proceed, the subject matter of the process was appropriate. The world had never before witnessed acts of such depraved magnitude and scope. The IMT concluded:
Defendants are charged with crimes of such immensity that the mere specific instances of criminality appear insignificant by comparison. The charge, in brief, is that of conscious participation in a nationwide government organized system of cruelty and injustice . . . perpetrated in the name of law . . . The dagger of the assassin was concealed beneath the robe of the jurist (Rosenbaum, 43).
The question of whether individuals should be held accountable for acts of state is inexorably tied to the question of deterrence. R.B. Perry has written:
Had those responsible for the aggressions and inhumanities of the Nazi regime been allowed to go unpunished, mankind would have lost a supreme opportunity to crystallize in legal form a recognized and pressing moral necessity. The time was ripe . . . to create a legal precedent for future time. Those who would have preferred exoneration, or assassination, or summary execution, were not the friends of law in principle, but the defenders of outmoded law or of the perpetuation of lawlessness . . . (Ibid., 37).
Further witness to the fairness of the proceedings is the fact that three of the defendants were acquitted (Persico, 437-439).
Though the substantive and procedural due process pass juridical muster, the goal of deterrence and retribution do not fair so well. Persico has questioned whether the trial has ever deterred one would-be aggressor (Ibid., 442). Neither the prosecution of aggression nor holding individuals responsible for official acts has become the norm (Ibid., 443). Yet deterrence may not be so easily measured. To determine what has not happened is quite another task than to determine what has happened. At a minimum, the Tribunal has been used as a model in some instances for the prosecution of some crimes. If the Tribunal has not deterred many wrong-doers, perhaps it at least has deterred those who would prefer to allow the wrong-doers to escape punishment.
Retribution was perhaps the most neglected aspect of the Tribunal. Until recently, the victims of Nazi atrocities had little avenue of recourse. Indeed, although the sentences at the Tribunal ranged from acquittal or three years in prison at the least to life in prison or execution at the most, no consideration or renumeration was given to the victims. They were left to their own devices and resources to reclaim their assets and seek individual retribution.
In the final analysis, the Tribunal effectively protected the rights of the accused and set forth a fundamentally fair process. The balance of power was completely one sided so the victors could set the process to suit their needs. Many of the victims, indeed even many of the classes of victims, were never involved in the process in either a direct or representative capacity. That justice was incomplete from the perspectives of the victims is the unavoidable conclusion (Buscher, 159-164; Persico, 437-443).
The Tokyo War Crimes Trial
Unlike the Nuremberg Charter, which was the product of lengthy negotiations among the Allied Powers, the Tokyo Charter was an executive degree promulgated by General Douglas MacArthur at the direction of the United States Joint Chiefs of Staff (Horowitz, 480). Although the other Allies were not consulted until the after the Charter was completed, its heavy reliance on the Nuremberg precedent combined with a lesser interest in the punishment of Japan made such unilateral action unobjectionable to the Allies (Minear, 20-21). The Charter, amended slightly by the Allies, provided for the "just and prompt trial and punishment of the major war criminals in the Far East" (Ibid., 21; Brackman, 60).
The Tribunal held jurisdiction over crimes against peace, conventional war crimes, and crimes against humanity (Roling, 55). Unlike Nuremberg, the charge of crimes against peace was a prerequisite to prosecution, that is, only those individuals whose crimes included "crimes against peace" could be prosecuted by the Tribunal (Minear, 21).
A "fair" or "just" trial for the accused was provided for through the same types of fundamental due process present in Nuremberg. Specifically, the defendants were to be advised of the charges against them in their own language, the trial would be contemporaneously translated, the right of freely chosen counsel was explicit, as was the right to a full and fair defense including the right to cross examine and call witnesses (Minear, 21-24; Roling, 50). The appeals process was limited to an appeal to General MacArthur in his role as Supreme Commander of the Allied Powers in Japan (Minear, 32-33).
While the process structure included the trappings of due process, it fell far short of fairness in three important ways. First, the evidentiary standard was greatly relaxed. The Charter provided that evidence against the accused could include any document "without proof of its issuance or signature" as well as diaries, letters, press reports and sworn or unsworn out of court statements relating to the charges (Brackman, 60). Indeed, Article 13 of the Charter read in part: "The tribunal shall not be bound by technical rules of evidence . . . and shall admit any evidence which it deems to have probative value" (Minear, 118).
To grasp the import of this evidentiary approach, one need only consider some of the evidence admitted. War time press releases of the Allies were admitted as evidence by the prosecution while those sought to be entered by the defense were excluded (Ibid., 120). The recollection of a conversation with a long dead man was admitted (Ibid.). Letters allegedly written by Japanese citizens were admitted with no proof of authenticity and no opportunity for cross examination by the defense (Ibid.). Finally, the Tribunal embraced the "Best Evidence Rule" once the Prosecution had rested (Ibid., 123). The "Best Evidence Rule" dictates that the "best" or most authentic evidence must be produced (e.g., a map instead of a description of the map; an original instead of a copy; and, a witness instead of a description of what the witness may have said). Justice Pal, one of two justices to vote for acquittal on all counts, observed, "in a proceeding where we had to allow the prosecution to bring in any amount of hearsay evidence, it was somewhat misplaced caution to introduce this best evidence rule particularly when it operated practically against the defense only . . ." (Ibid., 122).
The second glaring procedural defect was the overall policy for the judges. The eleven justices were selected only from the victor nations. No challenge to their credentials was allowed. They were not required to attend the proceedings and two of the justices were replaced after the process had begun. A simple majority consituted a sufficient number present to proceed and a simple majority of those present could make any decision (Ibid.). Moreover, since there was no requirement that the justices deliberate before rendering an opinion, the majority opinion was drafted without input from the dissenters. These procedural defects were manifested most clearly in that verdict. Six justices spoke only through the majority opinion, which found all 28 defendants guilty. The other justices prepared dissenting opinions, with no juridical weight, to express their objections to the majority opinion. (Minear, 81-88 and 161).
Perhaps not surprisingly, the American and British justices were not among the dissenters. Justice Pal of India was the only justice with prior international law experience. He argued for not guilty verdicts on all counts for all defendants because the prosecution had failed to prove its case. Justice Bernard of France urged acquittal on all counts based upon a flawed process. In particular, he wrote "oral deliberations outside of all influence . . . among the judges" was a guarantee of "justice" and in its absence, the verdict was invalid. Justice Roling of the Netherlands objected to the imposition of the death penalty for nonmilitary personnel for any charged crime and for anyone for crimes against peace. Justice Webb of Australia observed that, although death was apparently the minimum punishment for the crime of aggressive war, no Nuremberg defendant had been sentenced to death for it. He concluded "unless the Japanese accused are to be treated with less consideration than the German accused, no Japanese should be sentenced to death . . ." He advocated the Napoleonic tradition of exile rather than death and, showing concern for the executioners as well, suggested, "it may prove revolting to hang or shoot such old men" (Minear, 89-93; Brackman 388-400).
The third major procedural defect is a constant in human rights tribunals: jurisdiction. Like at Nuremberg, the defense argued that the Tribunal sought to impose an ex post facto law and the court rejected the argument (Brackman, 373). Justice Roling explained the jurisdiction in the following exchange:
(Q): . . . do you think the Tokyo Court applied retroactive law?
(A): Of course it did . . . but retroactively in this case is not so bad as it sounds . . . their claim that it would be unjust for them to have to account for the behavior was ridiculous . . . (Roling, 68-69).
The Court relied on Nuremberg as a "precedent" and adopted the Nuremberg rationale for jurisdiction when it rejected the defense objections to the proceeding. The refusal by the Court to persuasively respond to the jurisdiction issue made the proceedings legally suspect and of little value over time. As Osiel observed with respect to the Court's validity, "It is one thing to acknowledge that prosecutors have a legitimate range of dramaturgical discretion; it is quite another for them to attempt a staging of Hamlet without the prince" (Osiel, 139).
As flawed as the procedure may have been, it shines as a beacon of justice when compared to the substance of the trial. Two glaring defects combine to utterly undermine the argument that Tokyo involved something other than "Victor's Justice." First, the crimes charged were fundamentally different than those at Nuremberg. While waging war had long been held to be illegal from an international law perspective, the notion of holding leaders responsible for the acts of state was new (Hosoya, 45-48). Moreover, holding underlings responsible for the acts of state, jumping the chain of command as it were, was inarguably unprecedented (Ibid.). The massive atrocities and planned exterminations of whole peoples by the Third Reich had no counterpart in Japan. While it is true Japan conducted a traditional war and even exceeded the bounds of traditional warfare, the crimes of Japan simply were not as heinous as those of Germany. No doubt the Korean comfort women or other victims of Japanese wrongdoing would argue the acts of the two nations were equally reprehensible. Still, not one Japanese defendant was charged with ordering the execution of masses of civilians. The crimes of the Japanese all arose out of the waging of war. Indeed, even those prosecuted for the infamous "Rape of Nanking" were simply charged with negligent supervision (Roling, 32). Not even the forced slavery of foreign women, among the most reprehensible of their systemic acts, was part of the trial (Ibid., 47-53). The gravest charges arose out of crimes of omission - the failure by the defendants to prevent others not charged from doing bad acts (e.g., torture of prisoners and killing of survivors in submarine warfare) (Roling, 74-77).
One defendant who was convicted of the "failure to act," was found guilty because he did not resign once he discovered his efforts to prevent crimes against prisoners was ineffective. The verdict against him stated, in part, he should have pressed the matter, if necessary, to the point of resigning, in order to acquit himself of a responsibility which he suspected was not being discharged" (Ibid., 75).
Not only were individuals held responsible for acts of state, but also for acts of others. Ultimately, the defendants themselves were representatives only (Minear, 4; Brackman, 80-82). The 26 defendants were gleaned from a pool of over 80 "Class A" prisoners. To become a Class A prisoner, one need only be an officer of any level with some evidence against you available (Ibid.). The 26 were picked not because their actions were worse than the 54 who avoided prosecution, but because convictions would be easier to obtain (Ibid.).
The rather random method for ascertaining which individuals should be tried leads to the next fatal flaw in substance - the absence of the Emperor. The prosecution betrayed this flaw in its opening comments:
Individuals are being brought to the bar of justice for the first time in history to answer personally for offenses that they have committed while acting in official capacities as chiefs of state . . . (Brackman, 108).
Yet, no chief of state was actually on trial. Emperor Hirohito had been the only chief of state of Japan from 1928 through 1945 and he was not charged or even implicated as a wrongdoer (Ibid.). The absence of the Emperor as a defendant is a substantive defect of such magnitude, the trial as a whole must be called into question. Yasuaki has observed:
The political character of the trial is manifest in the treatment of the emperor who under the Meiji Constitution bore ultimate responsibility for the war. The tribunal not only failed to call the Emperor to account for Japan's war of aggression, but did not even summon him as a witness (Hosoya, 45-46).
The goals of justice, retribution, and deterrence seem to have never been considered by the architects of the tribunal. As for retribution, no victims were compensated or otherwise made whole in any fashion. Only death was meted out as punishment to a representative class of convicts. Most perpetrators of the alleged criminal activity were never charged. Critically, the Emperor, the one man who was ultimately responsible for whatever misdeeds occurred, was shielded from the proceedings in their entirety. As for deterrence, the lesson for posterity is that those ultimately responsible, like the Emperor, have no risk of prosecution and those responsible on any level, like the Class A prisoners, have long odds against prosecution.
In the final analysis, the trial was a function of political power. The purpose of the trial had been reported as "to convince the Japanese that crime doesn't pay" and "to make firm friends of our former Oriental enemies." At least one tribunal judge has suggested the true purpose of the trial was to avenge the attack on Pearl Harbor (Roling, 78-82). Indeed, Justice Roling explains the failure to contemporaneously publish the transcripts of the proceeding by observing, "I suppose that they [the U.S.] were perhaps a bit ashamed of what happened there . . ." (Ibid., 81). When asked if the trial was "victor's justice," that is, the prosecution of the vanquished by the victors as the final element of defeat, Roling replied:
Of course, . . . we were aware of the bombings and the burnings of Tokyo and Yokohama and other big cities. It was horrible we went there for the purpose of vindicating the laws of war and yet saw every day how the allies had violated them dreadfully . . . Tojo was right that in this respect Tokyo was victor's justice only. As one of the accused in the Nuremberg trial put it: "If we had won the war, there would have been another trial, in another place, for other crimes." That's quite true (Ibid., 87).
The Argentine "Dirty War" lasted from 1975 through 1978 and was followed by the rule of successive military juntas until the installation of a popularly elected government in 1983 (Hodges 1991, ix-x; Malamud-Goti, 3-5). The "Dirty War" came about after a constitutional government authorized the military to use any means necessary to defend the country against subversives (Hodges, Ibid.). This period is remarkable because of the state sanctioned use of torture, assassination, and generally terroristic methods of law enforcement against Argentines and resident aliens. Indeed, over 10,000 people were tortured and killed by government agents (Wynia, 163; Stotzky, 42-43). A tragic tribute to this counter-insurgency effort was the introduction into the world lexicon of the word desaparecido - the disappeared one. The word identifies those who were taken into custody, in all likelihood tortured and killed, and then "disappeared" or never heard from again (Anderson, 2-4). The military masterminds of this repression also instigated the disastrous Malvinas Island Conflict with Great Britain (Malamud-Goti, 3).
The embarrassment of the failed military operation combined with a dismal management of the economy so delegitimized the ruling military elite that they stepped down and called for national elections for President, legislators, and provincial governors (Ibid.). Radical Party candidate Raul R. Alfonsin promised to bring to justice those persons responsible for the gross human rights abuses of the long military assault on the public (Ibid.). Alfonsin won with an unprecedented (for a non-Peronist) 52% of the vote (Corradi, 150).
When the elected civilian government was installed in December of 1983, President Alfonsin asked presidential advisors Carlos Ninos and Jaime Malamud-Goti to create enabling legislation that would provide for the trial and punishment of the violators of human rights (Malamud-Goti, 4). Malamud-Goti identified the high purpose of the trials as follows:
Trials of persons accused of human rights abuses are widely proclaimed as essential to transitions from dictatorship to democracy. There are sound reasons indeed to maintain that punishment is a political tool to raise the consciousness essential to bringing about radical political change. Impartial allocation of blame to those who trample people's basic liberties . . . will help restore belief in individual liberties and recreate democratic authority . . . (Malamud-Goti, 4-5).
At the outset, the trials were concerned with substantive due process, blaming those who trampled people's basic liberties, as well as procedural due process, the impartial allocation of blame. The ends of the trials seem to diverge dramatically from the ends of justice. The architect of the trials proclaimed their political purpose as the restoration of democratic authority. The trials were simply part of a strategy by Alfonsin to refound democracy in Argentina (Epstein, 179). Retribution and deterrence were never the primary purpose of the trials.
The notion of the trials as a political tool rather than a juridical one is clarified by an analysis of their implementation. There is no dispute that the accused were given fair trials and that both substantive and procedural due process was jealously guarded (Stotzky, 341). Rabossi argues:
The performance of the court was nearly perfect. Its judges acted with determination, consistency, effectiveness, and a permanent respect for the procedural forms of justice. Moreover, the substantive legal arguments . . . met the very highest of international standards (Ibid.).
The trials have been applauded by some as the first time in Argentine history that subversive officers have answered for their actions (Peralta-Ramos and Waisman, 104). Indeed, the nine officers who ruled the three juntas from 1976 to 1982 were brought to trial and sentenced to terms ranging from four years to life imprisonment and four officers (those of the last junta) were acquitted of all charges (Wynia, 171).
Despite their initial promise, the trials fall short of justice because of the steps taken to limit their scope prior to any other action. Specifically, "The Full Stop Law" (bill 23,492 of December 1986) and "The Due Obedience Law" (bill 23,521 of June 1987) combined to undermine the legal process in a substantial and detrimental manner. These two laws limited the prosecution of military officers. The first allowed the trial of any officer only for those cases that could be prepared for prosecution within 60 days of its passage. The second law prohibited the prosecution of any officer for action taken at the rank of lieutenant-colonel or lower. Although prosecutors and judges labored through the traditional holiday month to prepare 400 indictments within the restrictive 60-day window, the Due Obedience law cut that number in half. Moreover, Alfonsin sent into retirement 50 of the 53 generals who served at the time of his election. The practical effect of this mass retirement and subsequent mass promotion from within was the elevation of junior officers from the immune ranks to leadership. Low-level officers were exempt from prosecution and were also promoted to the highest levels (Wynia, 169-173). Shortly after the number of indictments was cut to 200, the Supreme Court limited the number to 41 (Ibid.).
Because of these limiting laws and some overlap, only 15 generals, two admirals, and a group of naval officers were prosecuted (Stotszky, 342). The results varied dramatically from acquittals to long prison terms and many of those convicted were subsequently pardoned or given reduced sentences by either the executive or the Supreme Court (Andersen, 321-323).
Justice from the trials was unlikely from the outset. Retribution was never considered. The victims and the families of victims had no mechanism provided for redress in any fashion. Given the sparse numbers of actual prosecutions in relation to the original, albeit still abbreviated, schedule of indictments, the victims hardly could be satisfied with the punishment aspect of the trials (Andersen, 307-312).
Deterrence was given equally inadequate consideration. Some resistance fighters, the victim class, were also tried and convicted. As Hodges has argued, "those who led the armed resistance were thus placed in the same category as those responsible for some 30,000 'disappearances' and another 10,000 deaths" (Hodges 1988, 210-211). Moreover, the trials "went a long way in recreating the military's internal cohesion" (Erro, 145). Thus, rather than deter future abuses, the trials served to unite the military in the common defense of a well executed, if brutal, counter-insurgency.
Alfonsin claimed in 1992, "Our intention was not so much to punish as to prevent, to stop what had happened from happening again, to guarantee that never again could an Argentine be taken out of his home at night and be tortured or assassinated by officials of the state apparatus" (Andersen, 323). Yet the reality of the implementation of the trials suggests Alfonsin cared little about deterrence until he defended the role of the trials in history. The massive number of potential defendants meant selective prosecution was unavoidable. As Malamud-Goti observed, "to try all those responsible was plainly absurd. Directly or indirectly thousands of officers were implicated in human rights abuse" (Malamud-Goti, 185). Yet, the government "did whatever it could to limit the prosecutions to an insignificant number of culprits" (Malamud-Goti, 178).
Had Alfonsin taken a more aggressive approach and attempted to dismantle the entire military apparatus on the way to thorough human rights trials, he would have faced a united military with a renewed vigor and, undoubtedly, a coup. Had he issued a blanket pardon, he would have faced an angry populace no longer under seige from its own government and he, likewise, would have faced revolt. His strategy of slow investigation and a statutory narrowing of the scope of the trials allowed for the appeasement of some factions of the public and some factions of the military. Thus, he manipulated the judicial as a tool of the political. The trials were meant to strike a balance between the population which wanted justice for high crimes and the military which wanted absolution for a well executed defense.
Ultimately fearing recrimination from both sides, Alfonsin had little choice but to provide the trappings of justice to the people while shielding the military from substantial prosecution. In the final analysis, perhaps the trials provided a greater good as a mechanism for political stability, cessation of state sanctioned violence, and the consolidation of democracy than they ever could have as a mechanism for justice.
The Truth and Reconciliation Commission of South Africa
Apartheid is the term for the systematic racial segregation utilized by the white South African minority to maintain its control over the country from 1948 though 1994 (Jukes, 176-179 and 63-87). Over time, international disapproval and internal opposition eroded the foundations of apartheid. International disapproval took the form of isolation in sporting and cultural events and exclusionary sanctions in the realms of trade and finance. Internal opposition took the form of work stoppages and strikes, nonviolent protests like those advocated by Martin Luther King, Jr. and Ghandi and, by some opposition factions, violence (Howarth and Norval).
The deconstruction of apartheid was incremental and generally opposed by many in the government. The ban on interracial marriage was repealed in 1985 and the Pass Laws, which restricted intra-state migration of non-whites were repealed in 1986. Anti-apartheid demonstrations were legalized in 1989. The Separate Amenities Act, which prohibited non-whites from utilizing the public facilities reserved for whites, was repealed in 1990 amid promises of a new constitution. Nelson Mandela, the deputy president of the black opposition movement African National Congress (ANC) was released from prison in 1990 after over 32 years of imprisonment for his political activity. In 1991, all remaining laws that embodied apartheid were repealed including the Population Registration Act, which required every citizen to be classified into one of nine racial classifications (Thompson, 221-247). Throughout this dismantling, violations of human rights against those in favor of reform were widespread, systematic, and relentless (Waldmeir, 22-26).
In December of 1991, delegates from 19 political organizations met with the ruling National Party to begin negotiations for constitutional change (Thompson, 247). After a period of violent conflict that also included a white-vote referendum endorsing the peace and transition process, an interim constitution was agreed to by the leaders of all parties to the negotiations. That interim constitution explicitly set forth the goal of reconciliation for the people of South Africa (Asmal, 2). The first nonracial election was held in April of 1994 and Mandela was sworn in as president in May after receiving over 62% of the vote (Thompson, 254-255; Gastrow, 97; Juckes, 171).
President Mandela placed reconciliation at the forefront of the newly elected National Unity Government in his inaugural address:
Out of the experience of an extraordinary human disaster that lasted too long, must be born a society of which all humanity will be proud . . . Never, never, and never again shall it be that his beautiful land will again experience the oppression of one by another . . . (Thompson, 254-255).
By reconciliation, Mandela meant the full embrace by a multiracial country of a nonracial government accompanied by the cessation of political violence (Mandela, 257-260 and 261-268). An integral part of widespread acceptance of the new government was the assessment of past injustices "in order to inaugurate a more just future" (Asmal, 2).
In order to appreciate the emphasis on reconciliation and a just future, one need only consider the unique fashion through which change was accomplished in South Africa. As Asmal has artfully put it, "Apartheid was not ended by military defeat, but through sustained resistance and peaceful negotiation" (Asmal, 2).
The power structure that allowed the white minority to maintain a leviathanic control over the black and mixed-race majority was destroyed through negotiation rather than might. The critical result of this negotiated transition was that the whites still had a place at the table, so to speak. That is, the success of the majority did not rely on a disenfranchisement of the minority. The whites were not slaughtered. Their property was not summarily destroyed. Their rights to political participation were not withdrawn. The majority quest for political and property rights contemplated equality rather than simply a reversal of roles.
No doubt the resulting balance of power has many explanations. However, the importance of those assets controlled by the white minority cannot be understated. Whites had imposed control over all aspects of the economy for over 100 years prior to the end of apartheid. Control entailed ownership. Had the whites faced a future of restricted rights like the past of the blacks, a mass exodus would have undoubtedly occurred. This white flight would have depleted South Africa of its ability to fund economic activity. Moreover, it could have caused an avalanche of emmigration as well. From an economic standpoint, South Africa could not afford to initiate its nation-building strategy for the future without white capital and the confidence of the world economic community that the New South Africa would not run amok.
Mandela was faced with the difficult task of creating a viable economic state while redressing the massive and systemic wrongs of the earlier regime. Reconciliation rather than vengeance was the only path available to him. Any attempt at Nuremberg-style trials would have created the economic and social havoc he hoped to avoid. Reconciliation and justice were only to be achieved through a full disclosure of the truth about the past and an amnesty for wrongdoers.
The Promotion of National Unity and Reconciliation Act established the Truth and Reconciliation Commission in order to provide a "useful window into apartheid and . . . for arriving at justice through a clearsighted and ethically decisive grasp of the truth about the past" (Asmal, 14). Specifically, section 3(1) of the Act dictates that it shall establish:
as complete a picture as possible of the causes, nature, and extent of the gross violations of human rights which were committed . . . including the antecedents, circumstances, factors, and context of such violations, as well as the perspectives of the victims and the motives and perspectives of the persons responsible for the commission of the violations, by conducting investigations and holding hearings. . . (Asmal, 15).
The goal of "justice" is entwined inexorably with the notion of "truth." Yet the constants of deterrence and retribution inherent in justice are not absent here. Indeed, unlike the other trials, retribution is specifically contemplated. Section 3(1)(c) of the Act empowers the Commission to provide for reparations. Reparations, defined by section I(I)(xiv) of the Act, include "any form of compensation, ex gratia payment, restitution, rehabilitation, or recognition" (Asmal, 17).
The Act provides for an amnesty mechanism for perpetrators of human rights violations. Specifically, the Act provides that the Amnesty Committee "shall" grant amnesty to any applicant if "satisfied that" the application for amnesty involves an action associated with a political objective and that the applicant has made "full disclosure of all relevant facts" (sec. 20; Asmal, 16). The Amnesty Committee also has the explicit ability to withhold amnesty from an unrepentant applicant (sec. 19(4) and Asmal, 17).
Asmal, a Cabinet Member in President Mandela's administration and one of the architects of the Commission, has explained the South African model for human rights trials as follows:
For reasons of principal also, the triumphalist approach of victor's justice, with its inevitable selectiveness and political opportunism, was rejected in favour of ideals of nation-building and reconciliation between the oppressors and the previously oppressed . . . This rejection was consistent with the longstanding humanist ideals of the anti-apartheid resistence . . . a judicial [i.e., punitive] process would have focused too much on the perpetrators to the exclusion of the victims; it would have over-individualised the horrors of apartheid . . . at the expense of necessary attention to its systemic and collective evils . . . (Asmal, 18-19).
No doubt the intent behind the language of reconciliation was genuine and well grounded in firm conviction. Critically, the leaders of the ANC felt the Nuremberg style of war crimes trials would tear the country apart (Waldmeir, 277). The South African notion of ubuntu (very loosely, apologies must be accepted) made attainable the goal of the ANC to remove revenge from the equation (Waldmeir, 276-277). Consider further that after a century of white domination of all aspects and institutions of the economy, a systemic and thorough exacting of revenge would unavoidably result in a massive white financial exodus and possibly undermine the ability of the ANC to rule (Waldmeir, 271-272). White South Africa had capitulated. To relinquish power was an admission of wrong and to hold elections was an apology. The ANC victory was the most thorough revenge available (Waldmeir, 277). In essence, because they won, they could afford to be magnanimous (Ibid.). Moreover, reconciliation allowed nation building (or rebuilding) to begin (Howarth and Norval, 206).
Archbishop Desmond Tutu views ubuntu as the guiding principle of the Truth and Reconciliation Commission as well as of the traditional culture. He once explained ubuntu as follows:
We say that a human being is a human being because he belongs to a community and harmony is the essence of that community. So ubuntu actually demands that you forgive, because resentment and anger and desire for revenge undermine harmony. In our understanding, when someone doesn't forgive, we say that person does not have ubuntu. That is to say, he is not really human (Waldmeir, 268).
Economically, politically, and even culturally, reconciliation appears to have been the only prudent course. Over 13,000 applications for amnesty were received by the commission before the cut-off date of May, 1997 (Asmal, XIV-XV). Almost without exception, amnesty has not been denied to any perpetrator who is repentant and truthful. In the forward to the Report of the Truth and Reconciliation Commission, Archbishop Tutu succinctly stated why the Commission took the path of reconciliation:
There were those who believed we should follow the post World War II example of putting those guilty of gross violations of human rights on trial as the Allies did at Nuremberg. In South Africa, where we had a military stalemate, that was clearly an impossible option. Neither side in the struggle (the state nor the liberation movements) had defeated the other and hence nobody was in a position to enforce so called victor's justice (TRC Final Report, part 21 of forward).
Archbishop Tutu urges those who would criticize the amnesty provisions of the Commissions founding Act to consider that the peaceful transition from repression to democracy would not have been possible without amnesty. (TRC Final Report, part 22 of forward). The commission "has trodden the path urged on our people by the preamble to our founding Act, which called on 'the need for understanding but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimization'" (Ibid., part 32 of forward).
The term "to balkanize" or "balkanization" is accepted in both political and popular culture as deconstruction along ethnic or group lines that results in tragedy (Bugajski, 115; Sowell, 31). This transformation in the international lexicon of a geographic description into shorthand for ethnic conflict and genocide is testament to the intractability of the power struggle in Bosnia. Croats, Serbs, and Muslims have struggled for dominance in a region historically controlled by outsiders (Rhodes, forthcoming). Indeed, the country of Yugoslavia was created at the end of World War I out of political expediency on the part of the victorious allies (Ibid.). Between 1991 and 1995 more than 145,000 people were killed and more than 174,000 injured as a result of the ethnic conflict in Bosnia-Herzegovinia (Ibid.).
Throughout this period and continuing today, the international community has attempted to broker a conclusion to the Bosnian war (Wieseltier, 192). The fumbling self-interests of the United States at the expense of the citizens of the region is the subject of severe criticism. Wieseltier writes:
The United States waited to intervene against genocide until a change in the balance of power made its intervention less of a leap. In August of 1995, Croatia conquered Krajina and completed an ethnic cleansing of its Serbs. This established Croatia as a strategic counterweight to Serbia, and made the ethnic boundaries of the region seem more like political boundaries . . . The atrocities of the Croatians were expedient atrocities . . . the Croatian victory has become the premise of the Bosnian peace process . . . The deal the United States is promoting is a ratification of the results of genocide, not a repeal of them . . . (192).
The deal, self-styled as the Dayton Peace Accord, has been called a "nihilistic carve-up of Bosnia" by Francis A. Boyle (1). In sum, the United Nations, the European Union, the United States, Russia, and a handful of less powerful states forced submission by the parties to the imposed agreement which cleaves the republic of Bosnia and Herzegovinia (Ibid.). Boyle, the attorney for Bosnia before the World Court and legal advisor to the President of Bosnia, asserts "Bosnia was sacrificed on the altar of Great Power politics to the Machiavellian god of expedience" (Ibid.).
The agreement contemplates a Commission on Human Rights with authority in both the Federation of Bosnia and Herzegovinia and the Serb Republic (the two successor states) to investigate and prosecute human rights violations (Petrovcic, 1). The constitution of the Federation, the consociational arrangement between the two countries, provides for a Human Rights Court as follows:
The Human Rights Court shall consist of three Judges, one Bosniac, one Croat, and one Other . . . The competence of the Human Rights Court shall extend to any question . . . relating to fundamental freedoms . . . The Court shall have jurisdiction over cases commenced after 1 January 1991 . . . (Article 18 and 19).
The difficulty of this arrangement seems clear. The construction of the Court reflects the balance of power among the groups entrenched in the conflict. This equilibrious representation of the Court will no doubt avoid any potential for the infliction of victor's justice. However, as both Bosnians and Croats have perpetrated atrocities against the other, the likelihood of the Court actually prosecuting those responsible seems remote. Each side has an effective veto over prosecution of its own.
While the United Nations gathered evidence in contemplation of war crimes trials and even issued a handful of indictments prior to the Dayton Peace Accord, as yet only seven trials have been initiated (Bland, 19; Simons, A3). Moreover, the U.N. trials are fixated on the issue of whether "ethnic cleansing" is genocide. The U.N. tribunal "uses the term ethnic cleansing for what prosecutors have called a carefully planned Serbian campaign to unite the territory where Serbs live and to evict non-Serbs from [those] regions in Bosnia" (Simons, A3). This abdication of logic - ethnic cleansing is something short of genocide - may be unavoidable given the political realities of the region. The International Commission on the Balkans posits the situation as follows:
The central controversy over the punishment of war crimes is whether peace and justice are contradictory or complementary . . . peace must take precedence over justice . . . Bosnia in 1996 is not Germany in 1945; the victors are not judging the vanquished. Instead, compromises are being made, some of them distasteful . . . (Tindemans, 90-91).
Those most concerned with human rights in Bosnia have little at stake in the ongoing power struggle. A peace plan was forced upon the factions and an unworkable human rights tribunal was imagined but hardly implemented. The parties to any such tribunal, whether complainant or respondent, are still engaged in conflict. So long as no faction gains a decisive advantage, no real prosecution of human rights violations will occur. Moreover, the threat of victor's justice seems clear should one side prevail. Because the regional ethnic identities are so strong, there is a belief among the various populations that individual rights are derived from group rights (Rubin, 61-63). The implication from this definition of individuals' rights arising out of group rights is that transgressions against an individual are perceived as equal transgressions against the group. In the final analysis, none involved are capable of prevailing either politically or militarily. None involved are overly concerned with the human rights violations that occurred. Indeed, that the world community has taken Occam's Razor to the concept of genocide and derived the platitude of "ethnic cleansing" for tolerable genocide indicates an unwillingness at any level to address the crimes. The distinction drawn by most is that ethnic cleansing is simply the wholesale removal of a group from a territory while genocide is the wholesale slaughter of a group. The distinction is illusory as many are killed in the process of cleansing and the penalty for resistance is death.
In Bosnia, the attempted imposition by outsiders of human rights trials has failed to persuade the combatants of the error of their ways. Thus, neither substantive nor procedural justice can be scrutinized as justice in any form is entirely absent.
The Hutu and the Tutsi are the two dominant ethnic groups that struggle for power in Rwanda (Khiddu-Makubuya, 143-144). The Twa are a group of hunters and potters who comprise less than one percent of the population and have never vied for control (Watson, 2). Although roughly 90% of the population is Hutu, for hundreds of years the Tutsi minority controlled the government and maintained a brutal domination over the Hutu and the Twa. After over two years of civil war, the Tutsi monarchy was abolished in 1961 followed by independence from Belgium in 1962 (Ibid., 155-156). The colonial legacy for Rwandans is one of group identity hardened by oppression and a norm of the manipulation of the state apparatus to secure group advantage (Newbury, 207). Indeed, Newbury argues that:
for Rwanda, it would be more accurate to argue that Tuutsi [sic] chiefs, through their use and abuse of power, created Hutu consciousness . . . It was in fact oppression in its many different forms that brought about the cohesion among Hutu that contributed to the revolution and its outcome . . . (209).
The long history of rigid group identity in the context of perpetually scarce resources repeatedly leads Rwanda into tragedy (Prunier, 354). Rwanda has the most dense population in Africa (256 people per square kilometer) and over one third of its agrarian dependant population lives on less than half a hectare (Watson, 16). The constant food deficit combined with a population growth rate of almost three percent suggests that within a decade, the average Rwandese daily caloric intake will fall into a "grossly inadequate 1,400" (Ibid.). It is against this background of a grisly history of communal violence and fierce competition for the basic necessities of existence that the United Nations established the International Criminal Tribunal for Rwanda (The "Tribunal") (Security Counsel resolution 955, 8 Nov. 1994) (Prunier, 354-355).
From April through June of 1994, between 500,000 and one million Tutsi and moderate Hutu were slaughtered by Hutu extremists (Doctors Without Borders, 3). This genocide was the response of the Hutu extremists to a consociational transition government brokered by the United Nations. The brutality of the opposition to power sharing brought about not only the extermination of roughly one-sixth of the population but also set the dubious record of the largest refugee exodus in history. In less than 48 hours, over 200 thousand refugees fled the genocide and crossed the border into Tanzania (Ibid.). The so-called moderate Hutu were simply those opposed to the elimination for the Tutsi minority and in favor of the powersharing peace accord brokered by the United Nations.
Whether the number of slaughtered civilians was too great to ignore or whether the United Nations simply could not abide the utter disregard of its peace accord is unclear. Regardless of the motivation, the United Nations established the ostentatiously named "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 and Rwandan citizens responsible for Genocide and other such violations committed in the territory of neighboring States between January 1, 1994 and December 31, 1994" (Security Counsel resolution 955, 8 Nov. 1994, 1).
The Tribunal is a model of procedural due process. Indeed, an argument could be made that any procedural criticism ever lodged against a prior tribunal of this type was specifically addressed. From an explicit provision for the appointment of defense counsel to strict rules regarding arrest warrants, no criticism of the fairness of the rules of procedure could be credibly put forth (rules 44, 45, and 55). The substantive aspects of the Tribunal are equally laudatory. The jurisdiction extends to genocide, sexual assault, torture, and "other serious violations" of humanitarian law (rule 2). Hutu defenders contend that the artificial limitation on jurisdiction to calendar year 1994 means only Hutu are to be held accountable for their atrocious actions (Africa 2000, 7-12).
Accepting that the Tribunal treats Hutu and Tutsi sins as less than equal, the more substantial failing of this Tribunal is in its inaction. Although in excess of 45,000 Hutu men have been arrested, only a handful of suspects have been brought to trial (Africa 2000, 11-14). Even those brought to trial have done little more than plead guilty under the promise of leniency (Ibid.). Until the Tribunal actually begins to conduct trials on the same scale as the atrocities, Hutu criticism goes no further than the enabling legislation. That is, the criticism is of an idea rather than a reality. Should the Tribunal actually begin to hold those accused accountable, the one-sided treatment may be more problematic. As one commentator observed at a time when the Tribunal seemed on the verge of massive prosecutions:
Proving "genocide" in the Rwandan courts is the justice meted out to the losers of Rwanda's civil war by the victors. Proving "genocide" through an international tribunal . . . is justice which reflects the power relationship between the west and the rest . . . (Africa 2000, 13-14).
Without intervention from the international community, there seems little doubt that the Hutu and Tutsi would continue to struggle for domination over each other. Indeed, as detention of suspects is the only aspect of the juridical process overseen by the Tutsi, the massive number of detained Hutu is no surprise. Prunier has observed that without justice - strictly holding those responsible for genocide accountable to the hangman - the conflict between the two groups will simply reemerge (Prunier, 355). Moreover, unless money, "the international lubricant," flows into Rwanda to relieve the poverty, the struggle for power will continue to be the struggle for survival (Ibid.).
The Northern Ireland peace accord, an agreement among Great Britain, Ireland, and Northern Ireland, was executed in April of 1998. This peace effort marked the beginning of the cessation of hostilities that had plagued the region for generations. The comparable balance of power between the various competing interests meant that no side could hope to obtain a sustainable political or military victory. The accord contemplates the creation of three bodies of government that are separate but connected. The Northern Ireland Assembly will have formal power sharing between Protestants and Catholics and will assume powers now administered by Britain's Northern Ireland Office. The North-South Council will be a forum for ministers from the Irish Republic to promote "all-Ireland" or nationwide policies that will be contingent upon approval of both the Irish Parliament in Dublin and the Northern Ireland Assembly. The East-West Council will be a consortium of British, Irish, Welsh, and Northern Irish representatives who will meet to discuss and consider issues of common concern (Accord, 3-17).
The case of Northern Ireland is noteworthy here because of the absence of a provision for human rights tribunals of any sort. The long history of tragedy in Northern Ireland includes noncombatant murders, indiscriminate civilian bombings, unlawful imprisonment as well as a host of additional bad acts that would normally be deemed violations of internationally recognized standards of human rights. Yet, despite ample acts of violence that would be appropriate for prosecution, no trials are contemplated by the accord. The language of the accord makes clear that the parties have not unintentionally overlooked the sufferings and ignored the wrongdoing:
The tragedies of the past have left a deep and profoundly regrettable legacy of suffering. We must never forget those who have died or been injured, and their families. But we can best honor them through a fresh start, in which we firmly dedicate ourselves to the achievement of reconciliation, tolerance, and mutual trust and to the protection and vindication of the human rights of all . . . (Accord, 3).
Rather than a parade of the terribles where each side's heroes are presented for prosecution, the accord contemplates a reparations fund for victims of political violence and presents a multifaceted commitment to "the protection of the fundamental rights of everyone living in the island of Ireland" (Accord, 19-20). A Northern Ireland Human Rights Commission is to be established with membership reflecting "the community balance" (Accord, 19). It's ephemeral task is "to include keeping under review the adequacy and effectiveness of laws and practices, making recommendations to Government as necessary; providing information and promoting awareness of human rights; considering draft legislation . . . and, in appropriate cases, bringing court proceedings . . ." (Accord, 19).
A balance of power on the commission that reflects the balance of power within the community will be unlikely to result in any "court case" or prosecution for pre-accord activity. In essence, all parties would have a veto over prosecution of their own. Moreover, the vagueness of the notion of a "court case" means any prosecutor would have to find in other statutes or common law the basis for prosecution. Nothing has been declared a crime by the accord that could give rise to such a "court case."
At least in the case of Northern Ireland, power sharing results in a
virtual prohibition against the prosecution of human rights violations. Justice
is not the issue, peace is.
Political Power and Justice Compared
Cromwell claimed to seek "justice" through beheading Charles I. More plausibly, he perceived he could only quash the lingering symbolic power of the Crown through the death of the monarch. His triumph was short lived as the resurrected monarchy returned the favor. Cromwell's sacrifice of justice on the altar of political consolidation did him no good because he was unable to dissuade the population from their preference for a monarchy. If Charles I had defeated Cromwell, no doubt Cromwell's head would have been the first to fall. The winner defined justice for his political purposes.
In both the Nuremberg and Tokyo trials, the victorious allies forced their will upon defeated countries. Different post-war concerns led to different outcomes. A greater Allied concern for post-war Europe meant the triumph of fundamental justice in Germany. That is, the process was fair and the subject matter was legitimate. In Japan, the Allied concern focused almost exclusively on shielding the Emperor from culpability and notions of justice were an afterthought at best. In both cases, the military victory by the Allies meant they alone defined the parameters of the trials. The victims were never of primary concern to the victors. Justice was served only to the extent the military victors chose it.
The Dirty Wars Trials in Argentina and the Truth and Reconciliation Commission in South Africa represent justice constrained by political considerations. Alphonsin had a precarious grip on power and an alienation of either the military or the population could have sparked a civil war. In South Africa, Mandela knew an inclusive government and future was the only option available that would avoid more strife and allow for economic development. Each allowed as much justice as they thought their systems could take.
Rwanda and Bosnia represent justice imposed ineffectively by strangers to the conflict. Neither country was poised on the brink of peace and both present significant risks for renewed conflict. Justice in the form of Human Rights trials does not seem destined to occur in either place despite the window dressings hung by the United Nations.
In Northern Ireland, a country with no clear winner and, more importantly, no clear loser, the trials were out of the question. Political power sharing resulted in the commitment by all parties to the conflict to cease human rights violations and renounce those types of acts. These cases suggest that, to the extent justice entails prosecution, consolidated political power is a prerequisite to meaningful trials.
Each case shows the use of the trappings of justice to further political ends. In South Africa, Argentina, and Germany, the argument is compelling that the use of the juridical process as a political tool was a legitimate - or politically and morally defensible - act. Japan and England under Cromwell are more problematic cases as neither the means nor the ends of the political manipulation of the juridical process seem compelling. In Rwanda and Bosnia, the imposition of some form of juridical proceedings by parties who are strangers to the conflict seems futile. Northern Ireland suggests that, without some clear winner, neither side has an interest in these types of prosecutions.
In essence, retribution and deterrence are luxuries for those who are victorious on the battlefield. Justice from the perspective of victims is a scarce commodity while procedural and substantive due process have become institutionalized by the international community. In the final analysis, politics prevails in even the best of circumstances and justice is relegated to the status of a symbolic excuse for prosecution.
The Rome Statute
If the goal of the International Criminal Court is to depoliticize the prosecution of war crimes, it is doomed to failure. The cases have shown that the form of human rights trials that follows a conflict is determined by the outcome of the conflict. To presume otherwise is to ignore the history of such trials. Had Slobodan Milosevic prevailed in his efforts to "cleanse" the world of most Albanians, he might very well have demanded prosecution of the few survivors for their war time "atrocities" rather than face ruling his nation as an indicted war criminal. The untenable position the ICC will find itself in is the prosecution of the vanquished after every conflict or deciding on an ad hoc basis which group is the morally superior (hence entitled to prosecute). Neither task is likely to depoliticize prosecution.
Alternatives and Future Research
While the analysis has shown a strong correlation between political power and the manipulation of the juridical process at the expense of justice, some aspects of the conflicts that give rise to these tribunals escape the parameters of this consideration. Specifically, the role of ethnic and group identity in the administration of post-conflict justice may be critical. There may be group-oriented explanations for why one set of accused are treated differently than another. For instance, racial groupings may have been a determinant factor in the disparate treatment of Japan compared to Germany after World War II. A systematic analysis of the impact of ethnic group identity on the prosecutions could prove enlightening.
The worldwide imposition of western notions of justice, which is presupposed by an institutional arrangement for prosecution like the ICC, has the aroma of cultural imperialism. Whether the nature of justice is of such a universal shape that a one size fits all mentality is appropriate has yet to be shown. Substantial comparative research should be considered that could identify any universal threads upon which a worldwide definition of justice could be hung.
Finally, little has been done to assess the long-term impact of any of
these trials on the various classes of victims, the classes of perpetrators, or
the societies in general. Both a domestic and international analysis of the
impact of the trials of the past on the present political and social cultures
should be completed prior to an embrace of more trials in the future.
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Charles Anthony Smith is the Mark Twain Fellow at the University of California - San Diego where he will be pursuing a Ph.D. in political science beginning in the fall of 1999. He is pursuing a career in academics after 12 years as an attorney specializing in complex commercial litigation and intellectual property law. He is currently a member in good standing of both the Colorado and Georgia Bar Associations.
OJPCR: The Online Journal of Peace and Conflict Resolution is published by the Tabula Rasa Institute, www.trinstitute.org.