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War Crimes Courts Are a Powerful Force for Peace and Liberty
War Crimes Courts Are a Powerful Force for Peace and Liberty
U.S. military counter-terrorism hostilities and detention operations since 2001
U.S. military counter-terrorism hostilities and detention operations since 2001
Op-Ed / Global

War Crimes Courts Are a Powerful Force for Peace and Liberty

Originally published in International New York Times

On Sept. 4 1998, Jean Kambanda, the former prime minister of Rwanda, pleaded guilty before an international tribunal to genocide, admitting his role in the extermination of over half a million of his own people, and was sentenced to life imprisonment.

In reviewing factors which could mitigate the severity of the sentence, the trial chamber made the observation that Mr. Kambanda's "prime motivation for pleading guilty was the profound desire to tell the truth, as the truth was the only way to restoring national unity and reconciliation in Rwanda."

I have long thought this was the single most significant event in the emerging history of the two international tribunals with which I have been associated, the International Criminal Tribunal for the Former Yugoslavia, and its sister institution for Rwanda. Although it received very little attention at the time, this extraordinary legal precedent says much about the role that international war crimes prosecutions can play in the long-term sustenance of peace.

The integrity of the criminal justice system in many countries is so well entrenched that we easily forget what it tells us about who we are and how we live. Our willingness to submit our disputes to legal process is the hallmark of our choice to live in peace with each other. It is exceedingly rare in domestic criminal law that, regardless of its outcome, a criminal trial does not suffice to "stay the hand of vengeance" - a reference to Justice Robert Jackson's opening statement at the Nuremberg war crimes trials.

In speaking the language of peace, international trials dealing with massive atrocities must not only expose and record individual guilt, but construct the collective memories upon which both victims and perpetrators, indeed whole nations, will be cleansed of their brutal past

For the criminal trial to undertake this historical reconstruction, some of the traditional assumptions and requirements of domestic criminal justice may require substantial modifications.

It is important at the outset to question whether it is realistic for a criminal prosecutor to undertake the task of an historian. Anne Michaels, the Canadian poet and novelist has remarked, in her beautiful book "Fugitive Pieces" that "History is amoral: Events occurred. But memory is moral; what we consciously remember is what our conscience remembers."

History leaves room for doubt. It strives for a reconstruction of the past informed, understood and therefore revised in light of the present and even of the future. Justice, on the other hand, binds itself to a permanent and official interpretation of facts, often followed by irreversible harsh consequences. It favors detailed reconstructions of well defined, narrowly based events, to a high standard of proof, to satisfy its own need for finality.

In his book "Mass Atrocity, Collective Memory and the Law," Mark Osiel observed that legal requirements of criminal charges can create major historical distortions. He gives as an example the requirement in the charter creating the Nuremberg tribunal that crimes against humanity be prosecuted only if they were undertaken in preparation for, and in service of aggressive war. He then says, that "this jurisdictional peculiarity required prosecutors to weave the Holocaust into a larger story that was primarily about perverted militarism."

I felt that similar tensions were present in the work of the international criminal tribunals on Yugoslavia and Rwanda. To overcome these distortions and remain true to the full purpose of international criminal trials, Mr. Osiel argues that prosecutors must take a broad view of relevance and expose as much of the context as will serve to displace a focus required solely by legal imperatives.

There is a significant historical example of a war crimes trial woven into the culture of peace.

On Dec. 9, 1946, in Nuremberg, Germany, proceedings were opened in a case against 23 defendants that was to become known as "the doctors' trial."

When it reviewed the evidence, the tribunal concluded that the human experiments which formed the basis of the charges "were performed in complete disregard of international interventions, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations."

The tribunal recognized the legitimacy and the legality of certain forms of medical experimentation on human beings and expressed the existence of a consensus that certain basic principles must be observed "to satisfy moral, ethical and legal concepts." The tribunal then enunciated the 10 principles that became known as the Nuremberg Code.

Michael Grodin, a bioethicist who co-authored a major scholarly work on the doctors' trial and the Nuremberg Code, says: "Perhaps it was the unprecedented nature of the atrocities committed by Nazi physicians that has made the Nuremberg Code the hallmark for all subsequent discourse on the ethics of human experimentation."

This is probably the most compelling case for a conception of international courts that embraces a purpose much larger than most domestic criminal trials. It is with this broad purpose in mind that the work of international judicial institutions should be evaluated. They should avoid the glorification of individual defendants to the point of writing off the entire enterprise if they are not tried and convicted, and they should also resist the pressure for the speediest disposition of the largest number of cases.

Modern international criminal prosecution efforts will continue to demonstrate that personal responsibility for war crimes and crimes against humanity can find its proper place as a measure by which to promote peace and ensure an appropriate balance between security and liberty. Liberal democracies have long been engaged in the search for that proper balance, best described by Herbert Packer in his book "The Limits of the Criminal Sanction":

"Law, including the criminal law, must in a free society be judged ultimately on the basis of its success in promoting human autonomy and the capacity for individual human growth and development. The prevention of crime is an essential aspect of the environmental protection required if autonomy is to flourish. It is, however, a negative aspect and one which, pursued with single-minded zeal, may end up creating an environment in which all are safe but none is free."

When we have to use repressive legal measures like criminal penalties, it is critical to remember, as Mr. Packer observed, that the ultimate goal of law in a free society is to liberate rather than to restrain.

The criminal sanction serves to affirm a shared preference for law-abiding conduct, which then becomes the basis upon which a community of like-minded individuals, or nations, is formed and nurtured. It relies on the appetite, and indeed the basic need for belonging.

In that context, it is truly astonishing that powerful perpetrators of atrocities have not only remained unpunished over the years, but that they have not even been ostracized. It is the "them amongst us" that must be addressed through the exposition of their crimes, because as long as they are among us, we are them.