War Crimes Courts Are a Powerful Force for Peace and Liberty
War Crimes Courts Are a Powerful Force for Peace and Liberty
Toward a Common Set of Signals from the G20 about Russia’s War in Ukraine
Toward a Common Set of Signals from the G20 about Russia’s War in Ukraine
Op-Ed / Global

War Crimes Courts Are a Powerful Force for Peace and Liberty

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.

Members of the police stand in front of banners of the G20 summit near a venue for the G20 Finance Ministers Meeting in Nusa Dua on Indonesia's resort island of Bali, on July 14, 2022. Sonny Tumbelaka/Pool via REUTERS
Commentary / Global

Toward a Common Set of Signals from the G20 about Russia’s War in Ukraine

The G20 countries’ positions on the war in Ukraine contrast starkly, yet the conflict raises issues of global concern – economic shocks and nuclear risks – that the leaders cannot pass over in silence.

When the Group of Twenty (G20) leaders gather in Bali, Indonesia, on 15 November, one head of state who belongs to the Group will be notable by his absence. Russian President Vladimir Putin has decided not to attend the event. This news will be a relief for Western participants, who hardly want to share photo opportunities with Putin while he pursues his war in Ukraine. The Kremlin’s foreign minister, Sergei Lavrov, will be in Bali, but he may not be relishing the prospect. Lavrov walked out of a G20 foreign ministers’ meeting in July after his Western counterparts accused Russia of sparking the global food price crisis by invading its grain-producing neighbour.

Putin’s absence will not relieve the leaders who go to Bali of the challenge of how to address the war. The G20 is primarily an economic coordination mechanism, which was thrust into the limelight during the global financial crisis in 2008. Unlike the G7, which brings together like-minded Western countries with shared political interests, the G20 encompasses geopolitical rivals – the U.S. and China foremost among them – that are not apt to adopt strong common positions on international affairs. Yet Russia’s assault on Ukraine raises issues of global concern, including the widespread food and energy price shocks and the risks of nuclear weapons use, that the world’s most powerful politicians cannot pass over in silence.

The G20 meeting is, therefore, an opportunity for leaders to signal common positions about the war. Their primary focus should be on concrete commitments by the G20 countries to help poorer ones navigate economic turmoil. But the powers present in Bali could also use the occasion to underscore that they all expect Russia to refrain from nuclear use, in word as well as deed. Ideally, they would be as clear as possible that if Moscow does cross the nuclear threshold, it will face consequences not only from the West, but globally. A joint statement condemning Russia’s prosecution of the war or setting out potential peace terms will likely be impossible, given G20 members’ widely divergent positions on the war. But if G20 members can find common ground on economic issues and the nuclear taboo, the Bali summit will be a worthwhile diplomatic endeavour.

Diverse Ukraine Policies

The G20 members’ positions on the war differ starkly. The U.S. and most of its allies in the Group have imposed sanctions on Moscow and voted to condemn the invasion in the UN General Assembly. Most of the other members have at least condemned Russia’s aggression and illegal efforts to annex Ukrainian territory at the UN, but not resorted to sanctions (see map). Yet three weighty non-Western G20 members – China, India and South Africa – have not only declined to place sanctions on Russia but also abstained in UN votes on the war.

This map shows which G20 members have sanctioned Russia, and which voted to condemn its illegal "annexations" in Ukraine at the UN in October.

Various non-Western members of the G20 have at times tried to establish a diplomatic role in the war, although the results have mainly been negligible. South Africa attempted to take a lead at the UN in March by tabling a General Assembly resolution on humanitarian assistance to Ukraine. Western and Ukrainian diplomats rejected the draft out of hand because it made no reference to Moscow’s responsibility for the war (in contrast to an alternative UN text worked up by France and Mexico), although South African officials insisted to Crisis Group that theirs was a good-faith initiative to bolster multilateral cooperation.

Indonesian President Joko Widodo visited both Kyiv and Moscow over the summer, promising to facilitate communication between the warring capitals. Many observers suspected that his main concern was to make sure that the war would not stop the G20 summit from going ahead. Indonesia has raised the possibility of Ukrainian President Volodymyr Zelenskyy attending the summit, although Kyiv has indicated he will most likely only intervene via video link.

Other G20 members have also dipped their toes in Ukraine diplomacy. Mexico surprised and confused UN officials at September’s high-level UN General Assembly week by tabling a proposal for the Pope, the UN secretary-general and Indian Prime Minister Narendra Modi to lead a ceasefire effort. This idea has not taken off to date. There has also been a sporadic flow of speculation among Western commentators that India – which has increased trade with Russia since the February assault – could eventually prove a useful facilitator of Russian-Ukrainian diplomacy, and Modi urged President Putin to take a “path to peace” at September’s Shanghai Cooperation Organisation summit.

In contrast to these fledgling and tentative peace efforts, Türkiye’s President Recep Tayyip Erdoğan has emerged as one of the main diplomatic actors in the crisis. Türkiye hosted early, fruitless Russian-Ukrainian peace talks, but had success when it worked with the UN over the summer to broker the Black Sea grain deal. This deal permitted Ukraine to export its harvest by sea without Russian military interference. Türkiye and another G20 member, Saudi Arabia, also facilitated a sizeable prisoner swap – involving some 215 Ukrainians and 55 Russians – in September. Behind closed doors, G20 participants will surely probe Erdoğan as to whether his frequent interlocutor Putin is ready to compromise. But there is no sign in advance of the Bali summit that Ankara sees a breakthrough coming.

 

For the U.S. and Ukraine’s other allies, Beijing’s view of the war has been a constant source of anxiety.

But, however much attention Erdoğan garners in Bali, leaders may focus even more closely on what China’s President Xi Jinping has to say. For the U.S. and Ukraine’s other allies, Beijing’s view of the war has been a constant source of anxiety since February. In recent months, Western observers believe they have seen increasing signs of frustration in China with the course of the conflict. Beijing has indicated its concern that Moscow’s nuclear sabre-rattling, bad enough in itself, might be more than dangerous talk. This concern was heightened by the Kremlin’s vague, erroneous intimations that Ukraine, not Russia, wants to raise the nuclear stakes with a “dirty bomb”. Xi articulated these issues most clearly in a joint statement with German Chancellor Olaf Scholz opposing the “threat or use of nuclear weapons” in Ukraine.

Points of Agreement

While G20 members have, therefore, no shortage of opinions about Russia’s war in Ukraine, it is difficult to see how they could reconcile their divergent views in Bali. It is hard, for example, to square Mexico’s advocacy for an early ceasefire (which Brazil and Argentina also advocated for at the UN in September) with Western powers’ worries that Moscow could use a pause in hostilities to consolidate control over parts of Ukraine even as it rearms and repositions for the next phase of conflict.

Rather than focus on the specifics of how to end the war, G20 leaders may be better advised to identify broad areas of agreement about how to contain the war and its fallout. The most obvious would be for those G20 leaders who are in Bali to endorse the Xi-Scholz condemnation of nuclear threats and nuclear use. Alternatively, or additionally, they could reiterate the basic principle that a “nuclear war cannot be won and must never be fought”, which the five nuclear weapons states (the UK, China, France, Russia and the U.S.) affirmed in a statement to the UN in January. Such a declaration might be complicated by the G20’s incompatible positions on non-proliferation issues (Brazil, for example, has lobbied for the Treaty on the Prohibition of Nuclear Weapons, whereas India is not even a member of the Non-Proliferation Treaty). Given Russia’s recurrent allusions to nuclear use in Ukraine, however, the leaders should at least be able to agree they are opposed to nuclear threats and nuclear war.

The goal of such a declaration, however minimal or vague, would be to signal to Moscow that it will face global diplomatic and other penalties, rather than just consequences from the West, if its nuclear rhetoric turns to action in any way. Russia has shown some interest in how its moves in Ukraine – such as its agreement to the Black Sea grain deal – are seen in the non-Western world. G20 leaders are not likely to spell out in concrete terms what steps they would take if Russia does cross the nuclear threshold – indeed, it might be better they do not try to be too explicit, as doing so might only highlight their differences. But some sort of common signalling, especially one that by definition has both U.S. and Chinese buy-in, could help strengthen the nuclear taboo.

G20 members can offer common support to efforts to reduce the global economic damage the conflict is doing.

Turning to the war’s impact, G20 members can offer common support to efforts to reduce the global economic damage the conflict is doing. They could start by making a statement in support of the Black Sea grain deal (which is up for renewal by Russia and Ukraine on 19 November) and calling for this deal, which now has to be reaffirmed every 120 days, to continue indefinitely until hostilities cease. Such a statement would be a fillip not only for President Erdoğan, but also for UN officials working on implementing the agreement, which Russia threatened to quit in October after a Ukrainian attack on its navy.

More broadly, G20 leaders can use the Bali summit to help prop up the teetering global economy, much as their predecessors did in 2008-2009. Potential priorities include pushing multilateral development banks to boost lending to poor countries to handle economic challenges that could foment political instability. In 2021, G20 members committed to support liquidity in the global economy by making available to poor countries $100 billion in International Monetary Fund Special Drawing Rights (a reserve asset that Crisis Group discussed in detail in a briefing prior to the 2022 G7 meeting). They have been slow to follow through with this pledge, and they need to pick up the pace as the international economic picture gets bleaker.

Given its origins and membership, the G20 has greater credibility as an economic crisis management mechanism than as a security forum. Its actions on the global economy will carry more weight than its members’ political statements about Ukraine. Yet the last year has made it clear that global economic affairs cannot be insulated from security shocks, and big powers must tend to both. At the same time, Russia’s nuclear menacing amid the conflict it is waging in Ukraine is simply too big an issue to ignore. The Bali summit is an opportunity for the leading Western and non-Western powers to at least articulate their shared interest in not letting the war escalate out of all control.

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