Seeking Legal Remedies for War Crimes: International Versus National TrialsSkip other details (including permanent urls, DOI, citation information)
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Systematic, organized, and large-scale violations of basic human rights to life and liberty by governmental agents - tortures, rapes, killings - have characterized much of the latter 20th century, despite the promise made after the Holocaust "never again" to permit such crimes. The numbers of what some people have called "war crimes" and others "administrative massacres" numb us in terms of scope and scale: 4 million murdered by Stalin, 5 million during China's Cultural Revolution, 2 million by Cambodia's Khmer Rouge, 30,000 disappeared in Argentina, and other atrocities in East Timor, Uganda, Iraq, El Salvador, the Congo…Again and again the world has failed to bring those responsible for such horrors to account. Indeed, the UN High Commissioner for Human Rights was sadly correct when he recently noted that "a person stands a better chance of being tried and judged for killing one human being than for killing 100,000."
Most recently, we have growing casualty figures in the Balkans and Rwanda. In the former Yugoslavia, it is alleged that perhaps 20,000 women have been raped, 250,000 civilians killed, and another 2 million driven from their homes. In Rwanda, anywhere from 500,000 to one million people have been killed, while 90,000 detainees (nearly one percent of the population of that country) await trial in Rwanda's prisons. As is usual in the immediate wake of mass atrocities, there are doubts about these exact figures, as well as contentious debates about the relative levels of responsibility shared by the various ethnic or religious groups involved.
What is clear is that the numbers of crimes and victims stagger the imagination and, more importantly, vastly exceed the capacities of any one national court system to pursue investigations and conduct individual trials for all those who participated or were complicit in these crimes. In the face of these constraints, the accepted wisdom among international lawyers is that international war crimes prosecutions organized by the UN on behalf of the international community are the most legitimate way to deter future massacres, punish culprits, provide "closure" to victims, reaffirm the national and international rule of law, and restore the lost civility of torn societies.
The accepted wisdom has manifested itself in two ad hoc war crimes tribunals now operating in Tanzania and The Hague, which were created by the UN Security Council (under Chapter VII of the UN Charter) to adjudicate offenses committed in Rwanda and the Balkans respectively. At the same time, UN member states are preparing for an upcoming worldwide conference at which they will hammer out the details of a multilateral treaty for the creation of a permanent international criminal court. Depending on where that process stands a year from now, there may be pressure to create new ad hoc courts in response to other on-going massacres, as in Burundi or the Congo.
Clearly, the use of international criminal courts to judge "war crimes" is an idea whose time has finally come. Many international lawyers are so enthusiastic about this that they do not want to hear about potential problems with such trials, or about the relative benefits of alternative forums. In traditional international law circles it is considered "bad form" to criticize the new ad hoc tribunals for Rwanda and the former Yugoslavia, under the assumption that such criticism plays into the hands of those who oppose accountability, especially for high level government officials. International lawyers are also leery of competing approaches to handling war crimes - whether truth commissions or proceedings in national courts because they are skeptical that alternatives will afford even-handed justice; and many are so enamored of the international perspective that they have lost sight of the possible virtues of local process.
Professor MacKinnon and I challenge the established wisdom: I will be critiquing certain aspects of the ad hoc international tribunals, while Professor MacKinnon's article will be discussing and defending the use of civil suits in U.S. courts (the "civil component" to Nuremberg).
Whatever else might be said of them, it seems clear that the ad hoc tribunals for the former Yugoslavia and Rwanda face formidable challenges, precisely because they were established in the absence of military victory and military occupation. The fact that both of these tribunals needed to be established outside the regions where the crimes occurred suggests the scope of the problem.
The practical difficulties facing these tribunals are daunting. Despite thousands of probable culprits, the tribunal for the former Yugoslavia has, to date, issued approximately 75 indictments, and concluded only one full trial. Only a handful of those indicted are in custody. Governments in the region have not always cooperated with the tribunal, often refusing to turn over suspects, witnesses, or evidence, despite requests from the court. Recently, the press reported that Radovan Karadzic, the prominent Serb leader indicted by the tribunal, had brazenly registered his new car with local authorities, giving his local address. (Mr. Karadzic has apparently done well for himself in the midst of the Balkan bloodshed: the car he registered is a Mercedes.) Obviously, Karadzic seems to have little fear that he will soon be behind bars, despite his indictment. The official Serbian reaction is that the international tribunals are fraudulent political "show trials" put on by the enemies of "Greater Serbia," and merit no cooperation.
The Rwanda tribunal's challenges have been different but no less serious. That tribunal has too many detainees (held by Rwanda amidst contentions that many are innocent), a public clamoring for revenge, the absence of developed cases to proceed, and woefully inadequate financial resources and personnel. While the tribunal has 21 suspects in its custody, including both high-ranking officials of the Hutu-dominated government (that carried out many of the massacres against Tutsis), and their sympathizers (among them the former prime minister and minister of defense), it has only one courtroom in which to try its three on-going trials. The Rwanda tribunal is also marked by a history of mismanagement, cronyism, and low morale exceptional even within UN circles.
Without Nuremberg-styled "victor's justice," many suspect that these tribunals will primarily indict low-level functionaries, rather than those at the top. In addition, the sheer scale of the atrocities committed means that many more thousands of individuals directly or indirectly complicit in crimes in Rwanda and the Balkans will never see the inside of an international courtroom.
The first full-scale international war crimes trial since Nuremberg has now been completed at The Hague. Important logistical issues were raised in the process. After a trial that lasted nearly seven months, a trial chamber of the Yugoslav tribunal convicted Dusko Tadic, a Serbian cafe owner accused of torturing his former Muslim neighbors and customers, of 11 counts involving crimes against humanity (designated as "persecution") and five violations of the laws and customs of war. Tadic was sentenced to 20 years in prison, of which he is actually expected to serve 10. Although the café owner was a mere "small fry," his trial required 120 witnesses, hundreds of exhibits, 7000 pages of trial transcripts, a painstaking judgment of over 300 pages, and cost approximately $20 million. How many more such trials will the international community support?
The issues raised by these tribunals go beyond practical realities. There are serious flaws to the argument that these trials and their verdicts enjoy greater legitimacy than the alternatives, and that they must be given primacy over, for example, proceedings in national (including third-country) courts. It is wrong to presume that any entity created by the United Nations is bound to have greater credibility with either the international community or the victims of genocide than a national court. We should not forget that both Nuremberg and the Tokyo trials organized by General Douglas MacArthur generated considerable criticism in their time; these new ad hoc tribunals labor under similar, though not identical, shadows. Both the Rwandan and Balkan tribunals were created by a politicized Security Council, which stretched the interpretation of its powers in a way that has drawn the concern of those states not holding a veto on the Council. While these tribunals were not created by the winners of a war, and are therefore not applying "victor's justice" as at Nuremberg, the north/south divide still exists, prompting suspicions that even-handed justice will not and cannot apply - at least not until international humanitarian law is applied to all states, including those sitting on the Security Council itself.
Further, the legitimacy of these tribunals may yet be undermined by the lack of resolution on important operational questions. Since "independent" criminal tribunals created by UN executive action are unprecedented, no one knows whether or to what extent truly "independent" courts have been created. No one knows whether the Security Council retains residual authority over these tribunals, or whether it could decide to terminate either tribunal before its cases are concluded. No one knows whether the Council can "amend" either tribunal's statute to add to, subtract from, or modify the jurisdiction of that body over particular crimes. No one knows whether the Council can "direct" either tribunal not to indict or prosecute particular holders of high government posts, whose prosecution might prove detrimental to the "maintenance of international peace." No one knows whether either tribunal is legally entitled (or willing) to tell the Council that such attempts to interfere would be "null and void" (or what would happen if either body tried). The judges themselves do not know the answers to these questions. Indeed, at present, one trial chamber within the Yugoslav tribunal is requesting views concerning the scope of its enforcement powers, including whether the tribunal has the power to directly order governments or national courts to hand over evidence, or whether it needs to wait for the Council to act. (See Prosecutor v. Baskic, Order Submitting the Matter to Trial Chamber II and Inviting Amicus Curiae, Case No l IT-95-14-PT, March 14, 1997.)
Nor is it clear that victims really trust these proceedings. Rwanda's new Tutsi-led government voted within the Security Council against establishing the Rwanda tribunal, in part because they resented the international community's insistence that the death penalty not be available, and that trials be conducted outside Rwanda. It further deplored the paltry resources allocated to the effort. While that government is now warily cooperating with the international tribunal in Arusha, Tanzania, it is also pursuing expedited procedures under a specially created national law, which guarantees reduced penalties for perpetrators who confess. This remedy relies on plea bargains intended to avoid individual trials for the 90,000 persons now in detention, in exchange for full confessions and the naming of accomplices, all of which is deemed necessary to establish a full and truthful record of what occurred. Rwanda's national approach threatens to elevate expediency over fairness. It is feared that innocent detainees will choose to plead guilty for fear of a worse result; this is a reasonable concern given the absence of available defense counsel. Yet, it seems presumptuous to criticize Rwanda's approach, given the inadequacies of alternatives at the international level. Even a wealthy country would find it impossible to accord full trials to one percent of its population. This is not even an option for Rwanda, a country whose entire legal structure was virtually destroyed by the genocide at issue. At the other end of the spectrum, amnesties, along with the release of prisoners, would perpetuate a culture of impunity, and most likely revenge killings as well.
Meanwhile, Balkan victims, especially women raped as part of Serbian "ethnic cleansing," are still reluctant to trust the Yugoslav tribunal. That body still needs to win the hearts and minds of the diverse peoples living in the territory of the former Yugoslavia. Distrust of the political motives of the tribunal and those who established it is still pervasive; the absence of effective protection for those witnesses who do come forward only makes matters worse.
The Yugoslav tribunal's first trial, against Tadic, also suggests just how much advocates of the international criminal process have oversold its value, both to victims generally, and to female victims in particular. Tadic's victims were not compensated for lost property or injuries. They received no acknowledgement of shame or act of contrition from the defendant, or from any of the Serbian officials he served. Victims and their families were not allowed to tell their full stories at trial, and were reduced to acting as faceless place-holders for dates, times, or acts connected to specific counts in the indictment. U.S.-styled "victim impact" statements were not received, nor were victims encouraged to unburden themselves of the psychological or physical anguish they had suffered. Under the circumstances, it is doubtful that even those few victims of the Balkan massacre who managed to testify at this first trial found "closure," as contemplated by the tribunal's advocates. It seems doubtful that victims were truly afforded the opportunity to assert their sense of control and autonomy, enhance their dignity, lessen their isolation, increase their feeling of belonging to a community or find meaning in their victimization. On the contrary, many victims of the Balkan conflict may have found a sentence of (effectively) 10 years in prison equivalent to a "slap on the wrist," given the brutality they endured at the hands of people like Tadic.
The fact that rape charges were ultimately dropped against Tadic because of the failure of rape victims to come forward raises more general concerns that the Yugoslav tribunal will not deal effectively with the needs of the victims of gender-specific violence - not merely because procedural and evidentiary obstacles impede such cases, but because international humanitarian law fails to give explicit recognition to this form of violence. The tribunal has yet to cope with the fact that Balkan-style ethnic cleansing" allegedly involved the use of rape as a tool of genocide, which was directed specifically at women because they were both female and non-Serb. Guided by the "gender-neutral" definitions of most international crimes, it is quite possible - perhaps even likely - that the Yugoslav tribunal will fail to identify how women in particular were victimized in this so-called "ethnic" conflict through, for example, the threat of rape as a tool of expulsion, or through the use of forced impregnation as a genocidal weapon. There is concern that at the end of the day the victims of gender-specific violence will go unnamed, their memory demeaned because it was not properly understood. Those who pin their hopes on international criminal law, as it presently stands, need to recognize the limitations of that law, particularly if it is interpreted by a court anxious to buy its legitimacy with traditional international lawyers.
I do not oppose international war crimes prosecutions. War crimes tribunals may be useful instruments to channel the thirst for revenge and accountability into the relatively peaceful, more legalistic grooves of a courtroom. But many of the arguments in favor of international prosecutions and their primacy over alternative forums are based on the misconception that such processes are "magic bullets," capable of generating instant social consensus and closure. Such naiveté is not only wrong, but potentially self-defeating. If we set our expectations too high, and the tribunals do not measure up, then these and related efforts will collapse. Indeed, it has been suggested that these tribunals are merely the West's attempt to salvage some scrap of dignity, and to divert attention from its failure to prevent these horrible massacres. From the Western perspective, it is not yet clear whether these tribunals are seen as the solution, to the exclusion of attention to those underlying factors which made inflammatory appeals to "ethnic" nationalism possible in both regions in the first place.
The international prosecutions now being pursued contain enough flaws and present enough risks of failure that additional forums and approaches are not only appropriate, but necessary. International "war crimes" trials have a role, but only as part of broader strategies, including diplomatic pressure, state-to-state litigation in the world court, and even civil or criminal suits in national courts (especially in third-country states). Each of these alternatives has its potential uses and benefits: together they are more useful than if each were pursued singly, or to the exclusion of the others.
In order to make "never again" an effective vow, we need to make the law work for victims and for the sake of peace, and we need to take our remedies wherever we can find them - including, as Professor MacKinnon will argue, in a district court in New York. There are many routes to justice, deterrence, and accountability.
Professors José Alvarez and Catharine A. Mackinnon discussed solutions to prosecuting war crimes at the 1997 University of Michigan Law School Reunion of International Alumni. The following are papers that developed out of that discussion. Professor José Alvarez is a Professor of Law at the University of Michigan Law School.