This House would prosecute war criminals

 In the instances of small-scale crime we accept that if a community condemns a person’s action, our sense of justice demands that they be punished. However, it is often the case that those who commit the most heinous crimes at the highest levels of responsibility are not prosecuted because of the complexities of the process. For example Slobodan Milošević the former leader of Serbia’s trial took four years and he died before the verdict was given. According to ICTY Chief Prosecutor Carla Del Ponte “The death of Slobodan Milosevic deprived victims of justice”.[i] As an international community we have repeatedly pledged to prevent war crimes, in recognition of the fact that they are beyond the scope of local courts. When they occur it is a collective failure to protect, so the responsibility to prosecute and make amends falls with the international community. An admission of our inability to prosecute war crime undermines the decades of work we have done to prevent them.

[i] Online NewsHour, 'Milosevic Death Precedes War Crimes Verdict', PBS, 13 March 2006 http://www.pbs.org/newshour/updates/milosevic_03-13-06.html

The very scale of war crimes means that courts are inadequate vehicles for prevention or punishment. To achieve the international community’s goal of “never again” other methods, like sanctions, diplomatic engagement and the appropriate use of military deterrent and intervention must be employed. These pragmatic methods are unquestionably more effective and more likely to achieve long-term change.

An accepted tenet of most justice systems is the achievement of deterrence. Without the prosecution of war crime, its perpetrators have to consider no tangible cost to their actions. This applies to those who claim to have “just followed orders,” who now face a counter-motivation to refuse or defect.  In the case of high-level war criminals it becomes effective when they realise they are losing a conflict. If they fear prosecution they are more likely to seek to negotiate rather than going on a final destruction spree. In the final days of the Nazi regime, Himmler stopped committing atrocities and attempted to negotiate peace because he realised his own vulnerability to prosecution.[i]

[i]Allen, Martin, Himmler's Secret War: The Covert Peace Negotiations of Heinrich Himmler.

It is doubtful whether genocide such as this is based on rational calculations. For instance, the diversion of resources into the ‘Final Solution’ was a major reason why Hitler lost the war. In the same way, war criminals are unlikely to be deterred by legal threats such as these; they are driven by a fanatical hatred, not common sense. Furthermore, in wartime situations the immediate threats are so pressing that the hypothetical, long-term prospect of justice won’t affect the actions of lower-ranking officers.

The intention of many crimes of war is to destroy and demoralise individuals and communities. As a result, they often cause on-going harm to victims who cannot feel safe in their communities even after the conflict has ended. For victims, prosecuting war criminals has a vital cathartic function in helping them, to some extent, to come to terms with the crimes committed against them and their families. While full compensation is impossible, both the symbolic realisation of justice and the illustration of real commitment to prevention allows people to rebuild their lives to some extent. Failure to prosecute sends victims a message that the attacks on their freedoms were somehow acceptable.

Firstly, in many instances the victims of war crime want to move on with their lives. Being forced to testify and therefore relive their suffering can be deeply traumatic. Secondly, for victims to achieve catharsis or receive compensation the prosecution has to be successful, which they rarely are. If a prosecution fails to achieve a conviction, an even worse message is sent to the victims of those crimes.

For post-conflict societies to function, the tensions and divisions of the conflict must be brought out into the open and dealt with in order to be fully put to rest. Those most responsible for war crimes must be brought to justice, those involved in the regime but less culpable must have opportunity to make amends and victims must feel that they have been compensated. This allows compromise and the potential for effective governance. The alternative is to allow undiscussed, simmering hatreds and resentments to persist, which undermine growth and create a risk of further conflict.

After war, the primary need of the affected community is to regain day-to-day functionality, create prosperity and achieve reconciliation. While a Truth and Reconciliation Commission might help to air grievances with positive purpose, trials only serve to rake up old hatreds and prolong social divisions.

 In the instances of small-scale crime we accept that if a community condemns a person’s action, our sense of justice demands that they be punished. However, it is often the case that those who commit the most heinous crimes at the highest levels of responsibility are not prosecuted because of the complexities of the process. For example Slobodan Milošević the former leader of Serbia’s trial took four years and he died before the verdict was given. According to ICTY Chief Prosecutor Carla Del Ponte “The death of Slobodan Milosevic deprived victims of justice”.[i] As an international community we have repeatedly pledged to prevent war crimes, in recognition of the fact that they are beyond the scope of local courts. When they occur it is a collective failure to protect, so the responsibility to prosecute and make amends falls with the international community. An admission of our inability to prosecute war crime undermines the decades of work we have done to prevent them.

[i] Online NewsHour, 'Milosevic Death Precedes War Crimes Verdict', PBS, 13 March 2006 http://www.pbs.org/newshour/updates/milosevic_03-13-06.html

The very scale of war crimes means that courts are inadequate vehicles for prevention or punishment. To achieve the international community’s goal of “never again” other methods, like sanctions, diplomatic engagement and the appropriate use of military deterrent and intervention must be employed. These pragmatic methods are unquestionably more effective and more likely to achieve long-term change.

An accepted tenet of most justice systems is the achievement of deterrence. Without the prosecution of war crime, its perpetrators have to consider no tangible cost to their actions. This applies to those who claim to have “just followed orders,” who now face a counter-motivation to refuse or defect.  In the case of high-level war criminals it becomes effective when they realise they are losing a conflict. If they fear prosecution they are more likely to seek to negotiate rather than going on a final destruction spree. In the final days of the Nazi regime, Himmler stopped committing atrocities and attempted to negotiate peace because he realised his own vulnerability to prosecution.[i]

[i]Allen, Martin, Himmler's Secret War: The Covert Peace Negotiations of Heinrich Himmler.

It is doubtful whether genocide such as this is based on rational calculations. For instance, the diversion of resources into the ‘Final Solution’ was a major reason why Hitler lost the war. In the same way, war criminals are unlikely to be deterred by legal threats such as these; they are driven by a fanatical hatred, not common sense. Furthermore, in wartime situations the immediate threats are so pressing that the hypothetical, long-term prospect of justice won’t affect the actions of lower-ranking officers.

The intention of many crimes of war is to destroy and demoralise individuals and communities. As a result, they often cause on-going harm to victims who cannot feel safe in their communities even after the conflict has ended. For victims, prosecuting war criminals has a vital cathartic function in helping them, to some extent, to come to terms with the crimes committed against them and their families. While full compensation is impossible, both the symbolic realisation of justice and the illustration of real commitment to prevention allows people to rebuild their lives to some extent. Failure to prosecute sends victims a message that the attacks on their freedoms were somehow acceptable.

Firstly, in many instances the victims of war crime want to move on with their lives. Being forced to testify and therefore relive their suffering can be deeply traumatic. Secondly, for victims to achieve catharsis or receive compensation the prosecution has to be successful, which they rarely are. If a prosecution fails to achieve a conviction, an even worse message is sent to the victims of those crimes.

For post-conflict societies to function, the tensions and divisions of the conflict must be brought out into the open and dealt with in order to be fully put to rest. Those most responsible for war crimes must be brought to justice, those involved in the regime but less culpable must have opportunity to make amends and victims must feel that they have been compensated. This allows compromise and the potential for effective governance. The alternative is to allow undiscussed, simmering hatreds and resentments to persist, which undermine growth and create a risk of further conflict.

After war, the primary need of the affected community is to regain day-to-day functionality, create prosperity and achieve reconciliation. While a Truth and Reconciliation Commission might help to air grievances with positive purpose, trials only serve to rake up old hatreds and prolong social divisions.

The scale of crimes being prosecuted cause very slow trials, and a high likelihood of technical acquittals.  International Courts rarely have police forces of effective methods of enforcing rulings. The ICC has never achieved a successful conviction, the ICTY has been criticised for inadequate sentencing[i] and the current trials in Cambodia have become mired in court and national politics, to the point that it is expected that no further Khmer Rouge officials will be tried. Given the improbability of success, the cost and trauma of these trials is unjustifiable.

[i]"Ten years in prison for Miroslav Deronjic". The Hague: Sense Agency. March 30, 2004. Retrieved 8 May 2011. "Judge Schomburg however thinks that the punishment is not proportional to the crime and is not within mandate and spirit of this Tribunal. According to him, the crime to which Deronjic pleaded guilty "deserves a sentence of no less than twenty years of imprisonment". In a brief summary of his dissenting opinion that he read after pronouncing the sentence imposed by the majority, Judge Schomburg criticized the prosecution for having limited Deronjic's responsibility in the indictment to "one day and to the village of Glogova." Secondly, Judge Schomburg adds that the "heinous and long-planned crimes committed by a high-ranking perpetrator do not allow for a sentence of only ten years", which in light of his possible early release could mean that the accused would spend only six years and eight months in prison. At the end of his dissenting opinion, Judge Schomburg quoted a statement by one of Deronjic's victims. The victim said that his guilty plea "can heal the wounds" that the Bosniak community in eastern Bosnia still feels - "provided that he is punished adequately". According to the victim, "a mild punishment would not serve any purpose.""

Proving the commission of crimes on this scale beyond reasonable doubt must take a great deal of time and expertise. The end is so important that the cost must be borne. The successes at Nuremburg and the ICTY convictions prove that it is possible to bring war criminals to justice. While the ICC has had limited success, it is a young institution and is likely to streamline its processes and achieve more convictions in the future. 

These trials are not always in the best interests of people on the ground in post-conflict societies. Victims may feel great trauma at having to testify and revealing information might inflame tensions. This is particularly true when large numbers of people in the society had connections to the war criminals. For instance, many high-ranking Cambodian businessmen and officials had Khmer Rouge connections[i] and in Rwanda, Hutus make up 85% of the population. Prosecution is intended to allocate blame not to encourage progress and reconciliation. If any official process is necessary, Peace and Reconciliation Commissions are more suitable.

[i]Justice of a Kind, The Economist, http://www.economist.com/node/18898168

In most instances, victims support the progress of prosecutions and are willing to testify. If many people in the society had connections to criminal regimes then that has to be acknowledged and addressed through official means. If not, the tensions will still exist. Even if they are driven underground, the risk of violent tension re-emerging continues to exist. While Peace and Reconciliation Commissions may be useful in tandem with prosecutions, by themselves they risk appearing as mere talk shops that do not provide either punishment or compensation.

While proposition may claim that prosecution of war criminals is a moral imperative, the reality is that geo-political factors determine which prosecutions are taken. For example, all of the ICC’s prosecutions have been against African leaders.[i] Furthermore, although the United States is strongly suspected of war crimes in Iraq and Afghanistan, it is too powerful to be prosecuted. Fair justice should apply equally to everyone. Because it doesn’t, these prosecutions are often seen as Western impositions. This aggravates international tensions and reduces willingness to take any action on war crime in the developing world. For example, the African Union has refused to uphold the ICC’s arrest warrant on Omar Al Bashir.[ii]

[i]Case reports of the ICC http://www.icc-cpi.int/Menus/ICC/Reports+on+activities/

[ii] BBC News, 'Warrant issued for Sudan's leader', 4 March 2009, http://news.bbc.co.uk/2/hi/7923102.stm

Firstly, more prosecutions take place in developing nations because in recent decades more war crimes have been committed in developing nations. Western nations have been equally committed to prosecutions in the former Yugoslavia, in an increasingly prosperous European region. Secondly, although the refusal of the United States to become a signatory to the ICC is problematic, an inability to prosecute every war crime should not prevent us from prosecuting any.

There is no such thing as symbolic justice. While full justice is an admirable aspiration, its value is undermined by consistent failure. If prosecutions cannot be completed, the international community is seen as toothless. This undermines its deterrent value and trivialises the trauma of victims, who may feel their suffering is subordinate to esoteric legal principle. Furthermore, the prosecution of war criminals could use up political capital, thereby preventing more effective preventative measures, or real commitment to post-conflict rebuilding.

Justice is always aspirational. International law is a work-in-progress and while there is no question that a lot of work remains to be done, abandoning the effort will cause stagnation. While many failed prosecutions may come before International Courts, as commitment to international law strengthens so will the success-levels of prosecutions.