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War Crimes and Truth Commissions: Constructing International Morality and Constraining the State
Oberlin College
Department of Politics
International Studies Association
March 1998
Any serious concern with war crimes tends to weaken the link between man and the state and to place a certain limit upon the absolute pretensions of state sovereignty. 1
Introduction
Domestic truth commissions and international war crimes trials are becoming familiar features of the political landscape, for example in Brazil, Chile, Argentina, South Africa, and with regard to Yugoslavia and Rwanda. At Nuremberg, the victors of WWII articulated an international morality that thereafter gradually permeated domestic and international politics. Many of the Nuremberg norms have become behavioral standards to which states and sub-national groups are held, at least by human rights advocates, even during episodes of civil and international war. Similarly, the international community increasingly accepts that states' domestic actions are constrained by international obligations. Domestic truth commissions (usually established following governmental transitions) have asserted if not the justiciable illegality of acts, at least their reprehensible nature and society's need to expose, to abjure, and in future to deter them. In two recent cases, due to the obvious breakdown of domestic institutions, the United Nations established tribunals actually to try war criminals. Observers consider some domestic truth commissions considerable successes, others failures. 2 War crimes trials are promising as precedents but have not operated well enough effectively to warn potential miscreants that misdeeds will be punished. Still, the fact such tribunals have been empaneled at all shows that international norms formalized at the time of the Nuremburg trials continue to coalesce and are moving to greater institutionalization.
This paper argues that for international organizations this emergent international morality creates opportunities, in the form of justifications for intervention, and risks, in the form of apparent responsibility for enforcement. States experience corresponding opportunities for, and constraints upon their domestic and international behaviors. Domestic pressures may force involvement, imposing material and political costs upon states that they would rather avoid. Or, states' domestic political and foreign policy priorities may limit the participation in enforcement efforts, reducing the practical significance of norm consensus.
This paper first reviews the development of the international legal concepts of crimes against humanity, war crimes, and crimes against peace. Second, it shows that although international institutional progress beyond Nuremberg stalled during the Cold War, norms of state behavior evolved toward limiting the free exercise of national sovereignty. Third, it argues that recent practices show that domestic truth commissions share important normative elements with international war crimes tribunals although they pursue somewhat divergent objectives. Fourth, it explores the contradictory imperatives facing states and organizations operating within the new normative structure. International organizations and states that embrace these norms have established a new justification for intervening in events once protected by state sovereignty, but they have also created a new potential for failure for themselves: failure to enforce or uphold the norms. Similarly, successor regimes face multiple pressures in addressing the actions of their predecessors: some factions may undermine the state if their earlier acts are exposed; others may demand full accounting of past misdeeds as the price of political quiescence; some of the new elite may find that they have things to hide from earlier days which if revealed might reduce the new government's legitimacy. Problems of implementation evident in the widely disparate achievements of domestic truth commissions, and apparent in the Rwanda and Yugoslavia cases, mean that even if there is agreement on norms, lack of enforcement is the practical equivalent of a failure to create consensus over the norms. The paper's fifth section shows how current debates over the statute of the planned International Criminal Court provide evidence that the contradictory imperatives facing states undermine consensus on human rights and will likely limit the effectiveness of the ICC. While the second half of the 20th Century has been a time of considerable norm convergence in human rights and consequent limitations of state sovereignty, the constraints remain partial. Sovereignty persists.
I. The Development of an International Morality
According to Amnesty International, the first international criminal court proceeding took place in 1474 when "an ad hoc international criminal tribunal of 28 judges from towns in Alsace, Germany and Switzerland, with a presiding judge from Austria, tried and convicted Peter van Hagenbach for murder, rape, perjury and other crimes in violation of 'the laws of God and man' during his occupation of the town of Breisach on behalf of Charles, the Duke of Burgundy, at a time when there were no hostilities.'" 3
After a long hiatus, further steps toward creation of an international morality took place in the 18th Century as the nature of armies and wars evolved. Telford Taylor, in his memoir of the Nuremberg trials, argues that the idea of war crimes developed along with the professionalization of armies. 4 . Professionalization was a response to the uncontrolability of mercenaries, particularly in their treatment of local populations. Professionalization solidified the distinction between soldiers and civilians, making armies' treatment of civilians subject to military discipline. As armies became subject to discipline, soldiers could be punished for transgressions.
By the mid-19th Century, essential elements of the laws of war were in place although they had not been codified. Among European states, war was considered a relationship of states, not people, such that noncombatants were not considered participants in war. People were supposed to be permitted to pursue their lives even when living in a land over which armies contested. Once a soldier became incapable of fighting -- for instance, if wounded on the battlefield or taken prisoner -- his rights as a person were to be respected. Mistreatment, enslavement and execution of prisoners was considered illegitimate. Prisoner exchanges became common.
During the U.S. Civil War, the "common law" of war was transmuted into a military code of conduct. In December 1862, General-in-Chief Henry W. Halleck, military adviser to President Lincoln, asked Columbia Law School Professor Francis Lieber to propose a code of behavior for the Union armies. In May, 1863, Lieber's Code became General Orders No. 100: "Instructions for the Government of Armies of the United States in the Field." 5 The Lieber Code prohibited the use of poison as a means of war, dealt with the treatment of prisoners, noncombatants, irregular forces and spies. It condemned cruelty and unnecessary violence and destruction, but gave commanders wide scope in deciding what measures to pursue as military necessities.
On the European Continent, wars prodded humanitarians in similar directions. The Crimean and Franco-Austrian wars gave rise to the Red Cross movement, and in 1864 twelve European states signed the "Convention for the Amelioration of the Condition of the Wounded in Armies in the Field," which was followed by other Red Cross conventions. Gustav Moynier of Switzerland proposed an international criminal court in January 1872 after witnessing atrocities committed during the Franco-Prussian War. 6
In 1899 at the Hague, twenty four states signed the "Convention with Respect to the Laws and Customs of War on Land" which focused, as had the Lieber Code, on the humane treatment of prisoners of war, relations between occupation troops and civilian inhabitants including proscriptions against pillage, compulsion by occupiers of populations to fight against their own country, taking private property, collective punishments, and forced labor or contribution to the occupying forces "except for the necessities of the army of occupation."[Article 53] The Convention proscribed the use of poison or poisoned arms, "arms, projectiles, or material of a nature to cause superfluous injury" [Article 23e] which included expanding bullets and small explosive projectiles; killing or wounding individuals who laid down their arms or surrendered; and attack or bombardment of undefended towns or habitations. 7 In 1907, a somewhat expanded Convention was signed by forty states, also at the Hague. These conventions had no enforcement provisions, but were intended to constitute standard rules for the military establishments of signatory states, and thus could be thought of as a core of conventional international law governing war on land. Aerial war was not yet a concept, and at sea, conventions established a common definition of combatant vessels, the role of merchant shipping in time of war, and limits on the laying of anti-shipping mines.
By the beginning of World War I, although war continued to be the sovereign prerogative of states, the Hague and Red Cross Conventions limited armies' actions against occupied territory, civilians, opposing armies and prisoners, and had established the idea of "war crimes" as a matter of international discourse. International discussion continued during and after the war, motivated largely by animosity toward Germany, the Kaiser, and the waging of aggressive (as opposed to defensive) war. In addition, Turkish massacres of Armenians in 1915 provoked condemnation by the Allies of "crimes against humanity and civilization" 8 although there was no prior legal or conventional precedent for this terminology. The Armenians and their Turkish oppressors were both citizens of the Ottoman state, (then controlled by the nationalist, Young Turk movement) and thus beyond the reach of international law.
During the war, anger against Germany led to calls for trials of war criminals. "In 1916, Prime Minister Herbert Asquith told the House of Commons that his government was 'determined to bring to justice the criminals, whoever they may be and whatever their station.'" 9 Although there was formal agreement that an international tribunal should try those in high authority responsible for large-scale crimes and that the central Powers had, with premeditation, launched a "war of aggression" in violation of treaties, 10 U.S. reservations inhibited progress. The Kaiser was never tried because the Netherlands, where he had fled during the waning days of the war, refused to extradite him. Regarding other potential criminals, British officials were reluctant to press Germany to live up to Versailles treaty obligations requiring it to make its own citizens available for trial by representatives of the victorious armies. 11 The negative popular reaction in Germany might have been so damaging to the Weimar government that pursuing the cases would do more harm than good.
Although the war crimes trials of World War I fizzled, the idea grew in popularity that aggressive war and inhumane weapons should be proscribed. In 1922, negotiators tried to reach agreement on international arms limitations and aerial warfare agreements in Washington, but neither effort succeeded. The 1925 Geneva Protocol prohibiting the use of poison gas in war was widely ratified (although not by the U.S.). In 1930, as part of the London Treaty for the Limitation of Naval Armaments (a renegotiation of an agreement reached in 1923), submarines were to adhere to the laws of naval combat regarding surface vessels and prohibited from sinking merchant ships without first putting the crew, passengers and ship's papers "in a place of safety" unless the merchant ship had refused to stop or attacked the submarine. 12
In 1928, the Treaty of Paris, commonly known as the Kellogg-Briand Pact, declared that the parties condemned recourse to war, renounced war as an instrument of policy, and agreed that disputes and conflicts should be settled only by peaceful means. 13 Some commentators argued that the Treaty outlawed aggressive war, others found it ambiguous, but in any case it did little to constrain behavior.
While the formal scope of law made little progress after World War I, the horrors of World War II impelled convergence of the formal laws of war with wider humanitarian standards. Throughout the war, accumulating revelations of Nazi atrocities, along with fury over Hitler's aggressions against Poland, Czechoslovakia and France, led Allied leaders to reconsider the idea of formal war crimes trials. Thus, as Taylor says, "[W]hen the war ended in 1945, except for the treaty provisions relating to poison gas and submarines, the declared and generally accepted laws of war were not fundamentally different from those embodied in the Hague and Geneva Conventions. But, one would have to put that statement in perspective by adding that, in 1945, public and official attitude toward the laws of war had undergone a sea change." 14
At the close of the war, British, American and Soviet negotiators hammered out a set of working concepts enabling them to bring military and civilian German leaders to trial not only for war crimes as traditionally defined -- abuse of prisoners and people in occupied areas, attacks against soldiers who had surrendered -- but also for a newly defined crime (whose precedent was the Kellogg-Briand Treaty) of waging aggressive war, and for "crimes against humanity." The latter meant atrocities that victimized both foreign and domestic populations (similar to the Turkish massacres of Armenians in 1915) prior to and during the war, and including the newly defined concept of "genocide". 15
The fundamental concepts of war crimes emerged primarily from negotiations between British and American government representatives, leading to the Nuremberg Trials. The London Charter which established the basis for the International Military Tribunal at Nuremberg laid out three kinds of charges for which the accused could be indicted: (a) Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of, or in, occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. The London Charter adopted the idea that all participants in a crime are responsible for it, even if they were not primary perpetrators: "Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan."[Article 6]. 16
The London Charter eliminated the excuse that perpetrators were acting under orders or simply in pursuit of government policy they did not establish [Articles 7, 8], and it permitted the Tribunal to define as a criminal organization organizations such as the Nazi SS whose primary purpose was to carry out actions deemed criminal under the Charter. Once an organization was deemed criminal, it was assumed that its members participated in criminal acts, unless mitigating circumstances could be proven.
Thus with Nuremberg the essential elements of current limitations on sovereign behavior were codified in the three categories of possible crimes. From Nuremberg onward, precedent existed for considering a state acting illegally should it plan, prepare, or carry out aggressive war or war in violation of international treaties (including Kellogg-Briand) (Crimes Against Peace); should it mistreat civilians or former combatants as defined under the Hague and Geneva Conventions (War Crimes); or should it mistreat its own or other states' citizens by murder, extermination, etc., regardless of domestic law (Crimes Against Humanity). Following the first Nuremberg trial (of twenty-four high-level Nazi and German military officials), precedent existed for creation of international judicial structures to hear such cases. Some observers believed in the aftermath of Nuremberg that the United Nations would establish a standing international court to hear similar charges.
In 1947, France proposed establishment of such a court and the General Assembly took up the issue in connection with enforcement of the 1948 Genocide Convention. But the Genocide Convention did not specify a particular court. At the time of the Genocide Convention's adoption by the General Assembly, the International Law Commission was asked to study creation of a standing court, which it did in 1949 and 1950. Despite positive reports by the ILC and General Assembly Committees on International Criminal Jurisdiction, and development of a Draft Code of Offenses against the Peace and Security of Mankind, the General Assembly "in 1954 abandoned further efforts to set up a court pending agreement on a definition of the crime of aggression and an international code of crimes." 17
II. Domestic and International Norm Convergence
Although a permanent "war crimes" court did not emerge in the aftermath of Nuremberg, a series of international agreements specified limits to states' behavior toward their own and others' citizens, and at least implied an international responsibility to rectify violations of these standards. The Genocide Convention 18 requires states to punish transgressors; the International Covenant on Civil and Political Rights (ICCPR) 19 asserts that states party to the Convention undertake to "respect and to ensure to all individuals" the rights the Convention recognizes, and the Torture Convention 20 requires signatories to make torture punishable within their domestic legal systems, to arrest, extradite, prosecute and cooperate in producing evidence against torturers. Customary international law regarding extraditions, which generally exempts from extradition individuals charged with political crimes, expressly calls for extradition of those accused of crimes against humanity even if they argue that the charges against them are political. 21
Juan Mendez summarizes these new principles at the international level, asserting that ". . . a state is obliged to carry out a number of tasks in response to crimes against humanity. These tasks are:
Crimes against humanity are, more than just crimes against individuals, crimes carried out as "part and parcel of a systematic pattern of similar violations", because such violations "when committed massively and systematically, are crimes against humanity." Mendez asserts that from the victims' standpoint "the state's obligations correspond to a set of rights;
These precepts strongly resemble the tenets of allied declaratory policies (as opposed to the rather more moderate actions that they carried out) of "denazification" of German society. Occupation authorities pursued war crimes trials of lower-level Nazi functionaries; the gradually reconstituted German legal system prosecuted criminals from the Nazi era; and post-war German governments under the tutelage of occupying powers formally precluded participants in Nazi-era crimes (significantly including members of "criminal organizations") from holding political and governmental positions (even when not prosecuted directly for crimes). Post-war Germany's occupiers were not very successful in their denazification mission (and at times didn't try very hard). 24 However, what began in the 19th Century as international obligations in the context of war, had filtered down to the level of domestic obligations under the gravity of the Nazi experience. Internationally, post-war Federal Republic of Germany established reparation payments for some Nazi victims (those in the West) and Germany's policy toward Israel was based in part on the idea of collective compensation for the victimization of European Jews.
Divergent goals pursued by states and inconsistent application of international norms emerged glaringly at Nuremberg. Weak implementation, as compared to strong convergence on principles, continues demonstrates the fractiousness of international community. At Nuremberg and thereafter the victorious wartime allies were clearly hypocritical in their application of international standards. Soviet authorities tried to use Nuremberg in part to cover up their responsibility for the Katyn Forest massacre in Poland prior to German invasion. 25 They carried out its own massive human rights violations against Soviet citizens during Joseph Stalin's rule. 26 During Nuremberg the U.S. argued that the German submarine navy had been particularly brutal to target ships' crews, although the U.S. navy had followed essentially the same practices. 27 Later, the U.S. denied that it was fighting an "aggressive war" in Vietnam and denied that incidents of criminal behavior by its troops (individual war crimes, such as the massacre at Son My) were part of the larger pattern of behavior that would constitute crimes against humanity. 28 The U.S. has declined to act against Israel despite violations of (what Israel claims to be inapplicable) Geneva Conventions on the treatment of persons and property in occupied territory 29 In the 1970s, Britain was among those states accused of torture and mistreatment of prisoners. 30
Even in the breach, however, the norms were maintained. Rather than rejecting the evolving tenets of international law, alleged perpetrators disputed application to the particular situations in question. The Soviet Union didn't justify the Katyn massacre, it covered it up; the U.S. didn't claim the right to wage aggressive war, it claimed to be defending South Vietnam against aggression; Israel didn't reject the Geneva rules, it argued that they simply didn't apply to the West Bank and Gaza; and although Britain initially denied mistreating its Irish prisoners altogether, when eventually forced to admit it, it claimed to have reformed its procedures.
III. Domestic and international practice
At the domestic level, since 1974 approximately (the exact number depends upon definitions) seventeen "truth commissions" have been empaneled. 31 Successors to autocratic regimes that pursued "dirty wars" against their own citizens -- such as in Argentina, Chile, Chad, Zimbabwe, and most recently, South Africa -- have, to differing extents, exposed their predecessors' crimes, believing that exposure and truth are requirements of justice, a path to greater domestic peace, and potential inoculation against recurrence of abuses. At the international level, two war crimes tribunals are currently at work, one at the Hague investigating war crimes in Bosnia, the other in Arusha, Tanzania, focused on the Rwandan massacres. An investigation is underway into charges of mass murders in the Congo. There are international calls for action by the Algerian government, and offers of external assistance to stem the tide of massacres occurring in that country.
Although international norms command wide consensus, the ability of governments to implement them internally depends upon the conditions under which they come into power. As José Zalaquett, a member of Chile's National Commission on Truth and Reconciliation, pointed out, "the postwar model rested on a necessary material condition: the war criminals who were brought to trial did not lose power through political means but through a complete military defeat. The victors did not have to wrestle with questions of correlation of forces . . . ." However, in Chile's case and in others like its, "the perpetrators and their supporters were still a force to be reckoned with." 32 As a consequence, the objectives enumerated by Mendez, particularly those relating to punishment, removal of perpetrators from positions of influence, and the right of victims "to see justice done" had to be tempered by what Zalaquett, citing Max Weber, calls an ethics of responsibility, as opposed to an ethic of ultimate ends. That is, the domestic commissions had to take into account the possible repercussions of their actions and thus be sensitive to the political weaknesses of the governments in power. 33 In Chile's case, the commission's report did not cite perpetrators' names, choosing rather to focus on the fates of the victims, exposure of the general pattern of criminality, and specification of which government units committed them. In Argentina the government passed amnesties for the military perpetrators of the "dirty war" and held that "proper obedience" to higher authority was a legitimate defense against charges of criminality. 34
Some of the truth commissions have ultimately fallen even shorter of Mendez's standards, when successor government -- such as in Chad where the new government appears to have adopted the murderous techniques of the old one it exposed, and in Zimbabwe where its commission's final report remains secret -- used them more to buoy up the new regime than to set a new course respectful of human rights. 35
The ongoing South African Truth and Reconciliation Commission was created after study of the experiences of previous commissions in other countries. With a government in power clearly supported by a broad majority, it has been able to go further than the Chilean commission, by naming and exposing perpetrators, and has used the threat of judicial prosecution to motivate transgressors to come forth to confess their acts and thereby qualify for amnesty. For those granted amnesty, there will be no prosecution, thus Mendez's criterion of prosecution will not hold. Revelations have been pouring out from especially mid-level functionaries of the old apartheid apparatus, although the old regime's top authorities and some of the anti-apartheid movement's loose cannons (like Winnie Madikizela-Mandela) have used eerily symmetrical justifications for their deeds and have failed fully to testify about their actions. Still, even prior to ending its proceedings or writing its full report, TRC chairman Desmond Tutu South recently said in a speech to journalists that the commission was contributing to healing the wounds of the nation. "In many ways it has been unbelievable. It has been almost breathtaking this willingness to forgive, this magnanimity, this nobility of spirit . . . . This process has made a contribution to reconciliation, to healing . . . ." A white woman who had been severely injured when a golf course was bombed said, "I would like to meet the perpetrator in a spirit of forgiveness . . . . I would like to forgive him . . . . I hope he will forgive me." And the African daughter of an assassinated anti-apartheid leader said, "We would like to forgive, we just want to know whom to forgive." 36
At the international level, reconciliation and prosecution are being pursued separately. While the Dayton Accords seek to structure reintegration of warring parties to the Bosnian civil war and oblige authorities to cooperate with international criminal proceedings, the Hague trials have been hampered by NATO's reluctance to apprehend those indicted by the Yugoslavia War Crimes Tribunal. As in the domestic contexts described by Zalaquett, international troops have with few exceptions been directed to avoid challenging the interests and resistance capacities of Serb politicians. Although the Tribunal has handed down 52 indictments, few of those indicted have been brought to court. Responding to the February, 1998 voluntary surrender of two Bosnian Serbs who were indicted for crimes associated with "ethnic cleansing" and establishment of prisoner camps in 1992, Chief Prosecutor Louise Arbour stated that "the combination of diplomatic efforts and operations conducted over the past months by SFOR forces have sent a clear signal that indicted accused will not be able to obstruct the course of justice by hiding behind an apparent unwillingness of their national authorities to comply with international obligations. . . . I assure the remaining 52 publicly indicted accused that they are not going to avoid the tribunal's jurisdiction for ever and I invite them once again to surrender themselves, failing which I am confident that more operations will be carried out by SFOR." 37
Meanwhile, while Rwanda's domestic court system has been completely overwhelmed by the problems of trying thousands of people accused in the massacres rival ethnic groups, the international Rwanda Tribunal sitting in Arusha has been paralyzed by a lack of resources, corruption and inattention from major powers. There seems to be no disagreement that genocide took place, however the scale of the violations and the large numbers of people involved as likely perpetrators have paralyzed efforts toward justice at both the domestic and international levels.
The Rwanda and Yugoslavia Tribunals demonstrate, in continuity with Nuremberg, an international desire that war crimes be punished but also show how such tribunals depend on major states to apprehend transgressors. The two Tribunals have further solidified international legal precedents in favor of international jurisdiction over the core crimes of Nuremberg. However, weaknesses in implementation show the difficulties that are likely to confront even a standing, well-established and well-endowed standing tribunal.
IV. Risks and Opportunities of the New Morality
It was already clear at the time of Nuremberg that convergence on norms establishing the illegitimacy of aggressive war -- despite the background of the Kellogg-Briand Treaty -- was problematic for some policy makers of the major powers. 38 The impulse to prosecute the Germans was strong enough to quell the nay-sayers. But the argument of those opposed to establishing at the international level legal precedents for prosecuting individuals who had carried out measures under orders or in pursuit of historically acceptable objectives -- such as the conquest of territory for reasons of state -- has retained powerful influence even as signatures accumulated on treaties spelling out limitations to sovereign behavior in war. There is, however, virtual consensus on the illegitimacy of genocide, other crimes against humanity, and serious violations of humanitarian law applicable to international and non-international armed conflict. 39 Subscribing to the new norms entails two risks.
First, having adopted the new international morality, states may find that their obligations run counter to actions they might like to take. As international communications improve, it is increasingly difficult for states to hide actions that might not bear scrutiny, particularly under the constraints of the new morality. This explains governments' reluctance to accept international fact-finding missions in the context of massive civil violence (such as currently in the Congo and Algeria).
Second, transgressions by others may appear to require responses which, all other things being equal, states might rather avoid. Just as the British were reluctant to press for action against Kaiser Wilhelm after World War I, for fear of exacerbating German resistance against Versailles Treaty provisions, so NATO and its U.S. leadership have appeared reluctant to antagonize Bosnian Serbs by actively rounding up those individuals indicted by the Hague Tribunal for war crimes and crimes against humanity, the U.S. avoids responding to Israel's admissions that it uses "physical pressure" against detained Palestinians, France rejects the accusation that Algerian governmental officials are implicated in the cycle of murderous violence enveloping the country since elections were nullified in 1992.
The opportunities created by the new morality correspond to the risks. The norms against mistreatment of citizens may strengthen policy-makers' ability to resist pressures to take actions considered illegitimate, particularly in light of the increasing difficulty of keeping such measures secret. It is conceivable that a national leader, for example, would cite international observation and law as a reason not to carry out attacks against an unpopular population segment, although recent events such as those in the former Yugoslavia and Rwanda are not very encouraging in this respect. States held up to criticism may charge their detractors with hypocrisy in the event that the latter are either carrying out illegitimate acts themselves, or condoning similar acts in other states.
From the standpoint of outside states condemning violations in other states, the norms create justifications for intervention in the affairs of other states where in the recent past these were proscribed by the sanctity of sovereignty and U.N. Charter obligations. The risks and opportunities operating at domestic and international levels have practical consequences. Implementation of the norms falls short of what might appear to be demanded by the level of norm consensus. Awareness that sovereign pursuit of interests limits willingness to establish strong institutions for implementation restrains further convergence on the norms themselves. States seek to preserve for themselves options that reduce the likelihood that they will suffer from the risks entailed in too clear a devotion to the norms. This hesitancy can be seen in current negotiations over the statute of the proposed International Criminal Court.
V. Negotiating the Statute of the International Criminal Court
Post-Nuremberg calls for establishment of an International Criminal Court came to naught in the 1950s; the thaw of the Cold War in the late 1980s led to renewed action. In 1987 Soviet President Mikhail Gorbachev called for establishment of an international court to try cases of terrorism. In 1989, Trinidad and Tobago Prime Minister ANR Robinson called for an international court to try cases of drug trafficking. In December, 1989, the U.N. General Assembly (GA) requested that the International Law Commission develop a draft statute for an international criminal court. In 1993 the United Nations Security Council established the international tribunal for Yugoslavia, and in 1994 established the Rwanda tribunal. 40 In 1995 the GA set up an Ad Hoc Committee on the Establishment of an International Criminal Court, and later in the year it created the Preparatory Committee on the Establishment of an International Criminal Court (Prepcom), which was to develop further the issues explicated in the ILC's 1994 Draft Statute. The Prepcom met twice in 1996 and twice in 1997, planned a meeting for early 1998 and targeted June, 1998 for a six-week Statute Conference in Rome to complete negotiations and open the Statute for signature.
By early 1998, major progress in the negotiations shows that considerable agreement exists at the international level over the main features and desirability of a permanent International Criminal Court. Differences remained in five general areas. Although none of these appeared to be insurmountable, the differences show where international norms are limited by states' sensitivities to constraint on their behavior and/or responsibilities to intervene should other states transgress the norms. The Statute is very likely to be completed and opened for signature and ratification on schedule, in June 1998. However, the outcome will still show sovereignty's strength even as international norms gain in institutional expression.
1. Jurisdiction and definition of crimes
In concert with the Nuremberg principles, individuals, not states, are to be the objects of Court proceedings. The experience of Nuremberg, however, led to dropping the concept of criminal organizations as potential subjects of prosecution. For the purposes of the ICC, states are places where crimes within the Court's purview take place, and the Court (or other authorities) will need to determine whether they themselves are capable or not of bringing transgressors to justice (see "complementarity", below).
The "core" crimes over which the Court will have jurisdiction are war crimes, genocide, and crimes against humanity. Some states have called for inclusion of the crime of "aggression," but this is problematic for two reasons. First, insofar as it is the crime of a state, it falls outside the jurisdiction of the court, with major states (such as the U.S.) holding that a finding of such a violation of state obligations under the U.N. Charter or particular treaties is up to the Security Council. Secondly, since individuals might be chargeable with planning or perpetrating "aggression" (reminiscent of charges against some individuals such as Hermann Goering before the Nuremberg Military Tribunal), some state representatives have argued that individuals may be culpable and that some roles in aggression should thus be included in the Court's mandate as they were at Nuremberg. However, pending clearer definition of both aggression and the crimes the Court will consider, agreement has not been reached, and it is likely that the ICC will come into effect without "aggression" as one of the crimes it may hear. States will retain some considerable flexibility in their ability to decide what constitutes aggression in practice, and when a state is justified in carrying out violence against others.
Beyond the "core" crimes, debate is continuing over other crimes that could be added to the Court's purview, such as international drug trafficking, and terrorism. Some states seek to move the ICC into areas where domestic jurisdiction is difficult and the crimes are clearly international in scope. Others argue that particularly at the outset, it would be a mistake to extend the Court's responsibilities beyond those crimes which are well established under international common and conventional law and that are (or should be) amenable to domestic prosecution. There will likely be agreement, however, that a mechanism should be included in the Statute by which crimes could be added to the Court's purview.
2. Role of the Security Council and relationship to the United Nations
States are very sensitive about the degree of independence of the proposed Court both in relations with international structures (the Security Council and U.N. Secretariat) and domestic institutions (national courts). The core crimes appear frequently in the context of international conflicts, over which the Security Council has responsibilities under the U.N. Charter Chapter VII, and as part of domestic, or at least not clearly international, conflicts over which the Security Council has claimed responsibilities under Charter Article VI and under human rights covenants and humanitarian responsibilities (UNHCR). Because Security Council operations focus on peace and conflict as a whole, and not on individual roles within those conflicts, some states are reluctant to divorce the ICC's jurisdiction from Security Council operations. Other states have pressed the idea that individual responsibilities, since they are considered to hold constant regardless of the context of violence, war, or peace, should remain subject to ICC procedures regardless of what the Security Council is up to, particularly since the Security Council is subject to paralysis through use of the veto or the tabling of agenda items without their removal from the agenda.
3. Complementarity
The relationship of the Security Council to the ICC also bears on the role and capabilities of national court systems and the methods by which, and the degree to which the ICC should be able to claim jurisdiction in cases that may be or may have been considered by domestic or other courts claiming jurisdiction over accused transgressors. The relationship between the ICC and national courts has been termed "complementarity."
Typically there are four possible claimants, other than the International Court, to jurisdiction in such cases: courts of the state of the people against whom crimes have been allegedly committed; courts of the state in which the crimes were allegedly committed; courts of the state in which an accused perpetrator is residing; courts of the alleged perpetrator's home state. Negotiations have focused on whether a finding by the ICC that other courts are incompetent or have failed properly to try an alleged perpetrator should precede indictment, and how such a finding might be made. One possible mechanism for this would be a finding by the Security Council of the incapacity of alternative courts, or general assignment to the ICC of jurisdiction over individuals involved in crimes taking place in the context of violence or threats to peace under Security Council purview. Resolution of this matter will clearly bear on the question of what standards of prosecution and process are considered mandatory by the Statute's negotiators. There appears to be an emerging consensus that states will retain considerable latitude in the form and consequences of domestic procedures for dealing with transgressors, as would be expected in a situation where the objective of punishment takes second place to the imperatives of peace and reconciliation. However, to maximize deterrent effect, this may constitute an area of friction between national decision-making and international norms.
4. "Trigger mechanisms" and ICC independence
There continue to be major disagreements over whether the ICC will have an independent prosecutor and if so, what the degree of independence of that prosecutor will be. Some states have argued that such a prosecutor should be assigned tasks either by the court itself or by the U.N. Security Council or in response only to complaints brought by states or individuals. Others have argued for a highly independent prosecutor with the capacity to launch investigations and carry out indictments apart from particular complaints or directives.
The debate over trigger mechanisms lies at the heart of the ICC's independence, and consequently at the heart of states' concerns that the Court could become a threat or an irrelevancy. In the first case, an overly independent ICC could threaten Security Council or national efforts to ameliorate ongoing conflict. In the second, and as a likely consequence of the first, were the ICC to act in ways found undesirable particularly by major states, they might ignore or hamper it, prevent it from acquiring adequate resources, or fail to cooperate with it in apprehending and delivering suspects to it.
Nongovernmental organizations such as Amnesty International have argued forcefully for an independent ICC with full prosecutorial independence. AI argues that tying the ICC to a prior Security Council finding or restricting complainants to states or the U.N. will reduce the effectiveness of the ICC and its consequent deterrent to potential perpetrators.
5. Court structure, funding, and operations
In early 1998, negotiators had not yet agreed on the funding provisions for the Court and on its relationship with the United Nations, however these did not appear to be insuperable obstacles to agreement on the Draft Statute. The U.S. sought an independent financing system for the ICC, perhaps seeking to insulate it from the exigencies of U.N. financing problems.
V. Conclusions
By the end of 1997, observers were confident that an ICC Statute would be opened for signature in the summer of 1998 and would be widely signed. Although the scope, independence, and resources of the ICC will remain unclear until the Statute is finished and the new Court begins operations, the greater its independence and the more power given to its prosecutor, the more it will show that, as Richard Falk put it in 1971, a serious concern with war crimes has weakened the link between man and the state and placed "a certain limit upon the absolute pretensions of state sovereignty."
The history of international law regarding crimes against humanity, crimes against peace and war crimes shows significant convergence of norms at the international level. These norms are admittedly those of the leaders of states -- those who set national policy -- and they may lag behind, or be in advance of the beliefs of the broad masses of population in the many parts of the world. Still, since the crimes contemplated by these laws are crimes typically carried out under the leadership not of detached individuals or apolitical groups, but rather under the incitement, leadership, organization and even command of political leaders, the norms of the elite are a significant matter.
Even with coalescence of an international morality, however, will behavior be modified significantly and across a broad enough cross-section of states that the law and norms it embodies can be seen as something more than the expression of the hegemonic power of dominant states?
The kind of evidence necessary to uphold an argument that behaviors are converging concomitant with norms would be of three kinds: first, powerful states would have to visibly sacrifice short-term foreign policy objectives in favor of supporting states and/or the ICC in apprehending and trying alleged perpetrators of violations of international criminal laws, such as SFOR/NATO in Bosnia. This might entail detailing portions of military peace-enforcement contingents to act as police in enforcement of ICC indictments. If powerful states accede to the norms but refrain from supporting implementation, then in practice the norms lack consequence.
Second, powerful states would have to condemn, and encourage ICC cases against, people whose actions violate the standards of law the ICC is designed to uphold regardless of friendly relations or major economic stakes in the states of their residence. Effective implementation of general international human rights norms and deterring and punishing in particular the "core" crimes, will require these objectives to be raised to a much higher level of priority in foreign policies of (particularly) major states. Although norm consensus appears to be coalescing, such a shift in priorities is not evident. Evidence for such a shift would come if, for example, the U.S. vigorously condemned Turkish actions against resident Kurds, Israeli use of coercive measures, detentions and expulsion of Palestinians from areas still occupied; held China somehow to account for actions against Tibetan leaders and internal advocates of democracy. The U.S. is the easiest -- since most powerful -- example, but by no means the only one. France and Russia would need to change the balance between economic interests in, for example, Iraq, as compared to human rights norms; France would need to be much tougher on Algeria, Russia moderate its behavior in Chechnya.
Norm convergence and declaratory policy appear finally to have reached in 1998 levels that were believed by some observers to be right around the corner in 1946. Just as the record of Nuremberg remains ambiguous, however, in that it can be seen as either transcendent or victors' justice, so current innovations await further testing before it can fairly be said that the international system enters the 21st century with a significantly greater set of humanitarian constraints on sovereignty than those with which it began the 20th.
Notes:
Note 1: Richard A. Falk, "The Question of War Crimes" in Falk, Gabriel Kolko and Robert Jay Lifton, Crimes of War (New York: Random House, 1971) p. 8. Back.
Note 2: For example, see Priscilla B. Hayner, "Fifteen Truth Commissions -- 1974 to 1994: A Comparative Study", and Mark Ensalaco, "Truth Commissions for Chile and El Salvador: A Report and Assessment" in Human Rights Quarterly Vol. 16, No. 4 (November 1994) pp. 597-675; Henry J. Steiner, ed., "Truth Commissions: A Comparative Assessment", WPF Reports number 16 (Cambridge, Mass.: World Peace Foundation, 1997). Back.
Note 3: Much of this history comes from Amnesty International, "The International Criminal Court: Making the Right Choices Part I" AI Index: IOR 40/01/97 (website version, unpaginated) and from Telford Taylor, The Anatomy of the Nuremberg Trials (new York: Knopf, 1992). Back.
Note 6: AI, "The International Criminal Court . . . Part I." Back.
Note 7: Signatory states included the U.S., Mexico, Japan, Persia, Siam, "and nineteen European nations", Taylor, p. 10. Back.
Note 12: London Treaty on naval rules Back.
Note 13: The Pact of Paris (Kellogg-Briand Pact), 1928. Falk, Kolko and Lifton, pp. 45-47. Back.
Note 16: Peter Calvocoressi, Nuremberg: The Facts, the Law and the Consequences (The Macmillan Company: New York, 1948) Appendix I. Back.
Note 17: AI "Making the Right Decision . . . Part I." Back.
Note 18: Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948, 78 United Nations Treaty Series 277, in force 1/12/51 as cited in Mendez, "Accountability for Past Abuses", Human Rights Quarterly Vol. 19 no. 2 (1997) pp. 255-282, 260 and footnote 13. Back.
Note 9: Adopted 16 Dec. 1966, 999 UNTS 171 in force 23 March, 1976), GA Res 2200 (XXI), 21 UNGAOR Supp. (No. 16), at 52, UN Doc. A/6316 (1966), as cited in Mendez, p. 259 and footnote 7. Back.
Note 20: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984 UNGA Res 39/66, U.N. GAOR Sup. (No. 51) at 197, U.N. Doc. A/39/51, in force 26 June 1987, as cited in Mendez, p. 260 and footnote 15. Back.
Note 21: Mendez, p. 259. Back.
Note 22: Mendez, p. 260. Back.
Note 24: Constantine FitzGibbon, Denazification (Great Britain: Michael Joseph Ltd., 1969) pp. 86-100. Back.
Note 25: Taylor, pp. 466-72. Back.
Note 26: See, for example, Robert Conquest, The Great Terror (New York: MacMillan, 1973). Back.
Note 27: However, upon evidence from U.S. Admiral Chester Nimitz, German Admiral Karl Doenitz's eventual conviction did not include this particular charge. Taylor, 400-401, 600. Back.
Note 28: "Legal Memorandum on Vietnam War of U.S. State Department (excerpt)" in Falk, Kolko and Lifton, pp. 176-183. Back.
Note 29: Benjamin N. Schiff, Refugees unto the Third Generation: U.N. Aid to Palestinians (Syracuse, NY: Syracuse University Press, 1995) pp. 190-191, 227. Back.
Note 30: Although there was a difference of view as between the European Commission and the European Court of Human Rights as to whether British treatment of Irish prisoners measured up to criteria defining torture. David Feldman, Civil Liberties and Human Rights in England and Wales (Oxford, UK: Oxford University Press, 1993) p. 128. Back.
Note 31: Fifteen commissions, 1974-1994: Uganda (1974, 1986), Bolivia, Argentina, Uruguay, Zimbabwe, The Philippines, Chile, Chad, Southern Africa (African National Congress I), Germany, El Salvador, Rwanda, Southern Africa (ANC II), Ethiopia, as listed in Hayner, p. 597; subsequently, Guatemala, as noted in Nancy Thede, "Guatemala and Peru: Truth Commission (sic) are Brought to the Agenda", Impunity-Info. Newsletter, Vol. 1, no. 6 (April 1997) (Montreal, Quebec: International Centre for Human rights and Democratic Development); South Africa (Truth and Reconciliation Commission) as established by the South African Parliament under the Promotion of National Unity and Reconciliation Act, 1995, available on the TRC website at http:www.truth.org.za/back/act9534.txt. Back.
Note 32: Introduction, Report of the Chilean National Commission on Truth and Reconciliation, Volume 1 (Notre Dame, Indiana: Center for Civil & Human Rights, Notre Dame Law School, 1993) p. xxvii-xxix. Back.
Note 33: Report . . . ., p. xxx. Back.
Note 34: The amnesty issue has re-emerged in Argentine politics due to unrepentant public statements of the some of the amnestied naval officers. "The politics of the dirty war" Economist (February 14, 1998) pp. 34-35. Back.
Note 35: Hayner, 617, 623. Back.
Note 36: Desmond Tutu, speech to the South African press club, 21 October 1997. South African Truth and Reconciliation Commission web page http://www.truth.org.za/reading/press.htm. Back.
Note 37: "Serbs Surrender to Tribunal" Reuters, February 15, 1998, ABC news website http://www.abcnews.com/sections/world/DailyNews/bosnia0215.html. Back.
Note 38: Particularly Russia and France whose representatives during the London negotiations over the Charter for the war crimes tribunal held that the initiation of aggressive war, per se, was not necessarily a crime. Taylor, pp. 65-67. Back.
Note 39: As described in Amnesty International, "Making the Right Choices, . . ." but in contrast to Nuremberg's inclusion of "crimes against peace," which has thus far foundered on an inability to establish an internationally acceptable and legally precise definition of "aggression." Back.
Note 40: Yugoslavia: S/RES/827 (1993); Rwanda: S/RES/955 (1994). Back.
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