War Crimes
Great article in Harper's (January 2004): "War Crime and Punishment," by Guy Lesser.
I tend to see the whole movement toward war crimes trials as one of many interventions of morality into foreign policy. Such interventions are obviously not always a bad thing, but just as obviously they can lead to bad results. Perhaps most importantly, we can obscure our thinking about what is beneficial (what is in our interests) to focus on trying to harm morally bad people, or prevent morally bad actions.
Lesser is much more sympathetic to the war crimes movement. He provides a lot of details that I did not know about developments in the 19th and 20th centuries. A big part of what emerges is that many intellectuals expected the 20th century to be a new golden age of peace and protection of civilians during wars. Instead, it was arguably the most vicious and even nightmarish century, especially for innocent civilians, in human history. There is a very natural desire to "do something" about this, or prevent future incidents that are as bad as the worst episodes we have seen. The best rationale for Nuremberg was two-fold: to ensure justice was done to specific individuals, based on reasonable evidence; and to achieve an international commitment that "never again" would something like the Holocaust happen.
In 1993 there was supposedly planning underway for a permanent criminal court under the auspices of the UN--but planning had been stalled roughly since Nuremberg. In May 1993 the Security Council used its emergency powers to establish an ad hoc tribunal to deal with events in the former Yugoslavia (International Criminal Tribunal for the former Yugoslavia--ICTY). In November 1994 another tribunal was set up to deal with Rwanda, [update] and tribunals have also been set up to deal with East Timor and Sierra Leone. The International Criminal Court (ICC), established by a multinational treaty in 1998, is "a version of the original U.N. plan, although no longer technically under the umbrella of U.N. operations." Of course the U.S. is not among the 92 nations that are parties to this treaty.
Lesser is impressed by the quality of the work that has been done by the Yugoslavia Tribunal, and by the initiative that many individuals have shown in order to make this Tribunal a success. By way of a comparison that is fresh on my mind thanks to an article on Slate, this tribunal may have more successes to show, both in terms of convictions and the creation of a useful body of law, than all U.S. special prosecutors and independent counsels at the federal level since Watergate (which may mean, practically in U.S. history).
"During the ten years the ICTY has been in existence, it has completed, against many less celebrated defendants, a score of trials that are bound to have lasting importance, first in establishing the specific judicial facts of what happened in Yugoslavia between 1991 and 2000 but also (and potentially of far greater importance) in establishing exactly what kind of conduct within the context of armed conflict actually constitutes, for example, Genocide, Crimes Against Humanity, and Grave Breaches of the Geneva Convention." There has also been progress in deciding who in the chain of command can be held responsible for specific actions.
On the other hand, it is difficult to ignore the fact that a fair legal procedure, applied to events in a war zone, is very complex and time-consuming. This one Tribunal now has an annual budget of about $125 million a year, and a staff of about 1,300. It is not expected that the Tribunal will end its work before 2012. A reasonable estimate suggests that it will have tried about 100 cases at a total cost of more than $1.5 billion.
Of course Milosevic is a special case, and Lesser spends some time on a few days of Milosevic's trial. It has become clear that Milosevic wants to delay and draw out proceedings as much as possible. For him, it is better to be a martyr to the Serbian cause, fighting the vast forces arrayed against him, than a criminal serving the rest of his life in prison. Officials at the Tribunal still disagree as to the main goal of the proceedings. If they want the fullest possible account of what happened, "strict time limits are a major failing." On the other hand, if they simply want to "get the bad guy," even one conviction will do, and this could probably be done fairly quickly.
Lesser ends by saying he is not sure whether any of these proceedings will actually affect the behaviour of "future Hitlers, Stalins...and Milosevics." He is more confident that law-abiding nations will be changed. On the one hand, leaders may have to think harder about whether to resort to extreme means to achieve apparently worthy goals. On the other hand, international law and human rights may become more acceptable rationales for intervention in other countries. The "argument that they must take action because it is their legal duty to do so will start to sound like a winning one."
Lesser is able to work in one footnote on Saddam. (His long article must have been virtually finished when Saddam was captured). He suggests that it may not be wise to subject Saddam to a full international tribunal-type proceeding. Once again, if there is a desire to consider Saddam's whole career as leader, the proceedings could take years, and would give Saddam a forum to play to his supporters, as Milosevic is doing. On the other hand, the families of victims would presumably want the fullest possible investigation. The notorious gassing of Kurds, for example, happened in the 1980s.
Lesser also has some more pointed observations: "...it is quite easy to imagine that much would be made of active U.S. support of Hussein's regime during the country's conflict with Iran, that the 'legality' of the United States invasion would be vigorously contested...and that every effort possible would be made to play to the region's anti-American audience...."
Hussein might be portrayed as both a "martyr" and as "something of a pawn, turned upon and betrayed by his former ally, the United States."
The United States might even be portrayed, during the period prior to Iraq's invasion of Kuwait, as "an accomplice that supplied and trained Hussein's armed forces while turning a blind eye to ... crimes they were fully aware of and might have done something to prevent."
I would simply add: Many Americans are now suggesting that the main reason for the invasion was to defend human rights. Whether or not this agrees closely with the historical record, it suggests that there might be a new way of thinking about such things. In foreign policy, many Americans would prefer to see themselves as either isolationist, like Bush before 9/11--perhaps not making things better, other than by setting an example, but at least not making them worse--or as fighting for a noble cause. The UN itself was once seen as such a cause. Perhaps international tribunals to deal with war crimes and human rights could be seen that way as well.
Update: South Africa has set a great example for dealing with both regime change and justice for criminals, with their "Truth and Reconciliation Commission." The emphasis on reconciliation means they admit, at least tacitly, that some people who enthusiastically supported the old regime, and perhaps even some specific crimes, can become very useful supporters of the new regime. (For a somewhat less optimistic view of South Africa, see here).
Lesser alludes very briefly to the fact that any international court will eventually have to hand a lot of the hard work of investigation to domestic courts.
In the case of Serbia, they seem to be saddled with a poor constitution, including a stupid rule that a president can only be elected if there is 50% or more voter turnout (see Article 9). This seems to have helped reinforce the idea that the country is unable to have stable government unless they put the old Commie and Serb nationalist crackpots back in charge. In the election last month, Milosevic actually won a seat in parliament.
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