A predictive framework for the effectiveness of international criminal tribunals.

• Author: Griffin, James Blount

ABSTRACT

This Note examines international criminal tribunals and analyzes the factors that can govern the level of their effectiveness. The historical background in this area is essential, for one of the main points of the Note is that international criminal tribunals cannot be detached from the political circumstances that create them and enforce their verdicts if those verdicts are to be enforceable at all.

The Note begins with an analysis of the International Military Tribunal at Nuremberg, and compares it to its contemporary counterpart, the International Military Tribunal at Tokyo. The Note then makes a similar analysis of the recent International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.

From the histories of these international criminal tribunals, the Note develops a predictive framework for the effectiveness of the newly-legislated permanent International Criminal Court (ICC). The predictive framework is built on several factors including: the degree of defeat among the losing parties, the level of cooperation among the victorious allies, popular approval of judicial procedures unacceptable under most other circumstances, and the weight of the evidence.

The last part of the Note applies this predictive framework to the new Rome Statute for the ICC. Though the ICC is a cornerstone of the dream of a truly effective and politically detached international criminal justice system, the experience of international criminal tribunals during the twentieth century demonstrates that such courts are dependent on the unified political will and military power of the alliance that supports their creation and enforces their verdicts.

1. INTRODUCTION

   The creation of a permanent International Criminal Court (ICC)(1) by the 1998 Rome Conference brings hope that the precedents of Nuremberg may be used to end impunity for gross violations of human rights.(2) Judge Gabrielle Kirk McDonald of the International Criminal Tribunal for the Former Yugoslavia (ICTY) called the new permanent court "a wrecking ball" against the "rock of State sovereignty" that usually shelters war criminals from prosecution.(3) The enforcement of international criminal law, however, depends upon the unified political will and military power of the alliance that supports the international tribunal.(4) Without the power of coercion, there is little or no enforcement.(5)

   While the International Military Tribunals at Nuremberg and Tokyo(6) at the end of the Second World War established precedents for the enforcement of international criminal law and human rights, their success, in both trial results and public perception, was only possible because of a combination of factors. These factors include: the degree of defeat among the losing parties, the level of cooperation among the victorious allies, popular approval of judicial procedures unacceptable under most other circumstances, and the weight of the evidence.(7) At Nuremberg, the United States, Britain, France, and Russia mustered the fleeting reserves of allied cooperation to try the leaders of Nazi Germany for war crimes. They succeeded in convicting most of those prosecuted, exposing the moral bankruptcy of Nazism, and establishing an international precedent that aggressive war is a punishable crime. The level of success at Nuremberg, however, has not been repeated since, not even at Tokyo at the end of the same war.

   This Note analyzes how international criminal tribunals succeed and fail by examining first the Nuremberg and Tokyo tribunals, and then the current ICTY and International Criminal Tribunal for Rwanda (ICTR). From the histories of these international criminal tribunals, this Note develops a predictive framework for the effectiveness of the newly legislated ICC.

   Part II of this Note is a brief history of modern international criminal tribunals: Nuremberg, Tokyo, the ICTY, and the ICTR. Part III analyzes the success and failures of international criminal tribunals in light of historical and political factors and then develops the factors into a predictive framework for the enforcement of international criminal law. Part IV applies this predictive framework to the new Rome Statute for a permanent ICC in order to analyze when it might be most effective.(8)

2. BRIEF HISTORY OF MODERN INTERNATIONAL CRIMINAL TRIBUNALS

   1. Nuremberg and Tokyo Trials

      The Nuremberg and Tokyo trials after the Second World War established the modern precedents for international criminal liability for genocide, war crimes, crimes against humanity, and aggressive war.(9) By the judgment of the International Military Tribunal, eleven Nazis were sentenced to death and seven to prison at Spandau.(10) Three were acquitted.(11) In Tokyo, a military tribunal under a similar charter delivered retribution upon several of the most prominent Japanese.(12) Two former Japanese premiers, Baron Koki Hirota and General Hideki Tojo, were hanged, as were five other Japanese generals.(13)

      The differences in the actions of the victorious Allied Powers in Germany and Japan, however, illustrate some basic problems in establishing and enforcing international criminal law. An international criminal tribunal is only as effective as the collective political will and military power of the alliance that creates and supports it because the nature of criminal law is coercive.(14) The tribunals at Nuremberg and Tokyo can be distinguished by several factors, including the relative powers and interests of the participating nations and the structure of authority.(15) The Big Four powers negotiated the creation of the Nuremberg tribunal at London.(16) The Tokyo tribunal, in contrast, was created by the declaration of General Douglas MacArthur acting as Supreme Commander of the Allied Powers.(17) The judges sitting on the Tribunal represented the eleven nations of the Far Eastern Commission, but MacArthur retained authority to review prosecutions and sentences.(18)

      The literature on the Nuremberg trials is vast and will not receive significant addition here, but it must be said that the conditions which resulted in the establishment of the first modern international criminal tribunal and its prosecution of twenty-one former military and political leaders of one of the world's strongest powers are not likely to occur again.(19) These conditions include: the unconditional surrender of Germany, the poor prospects of escape, the relatively balanced alliance of the three great world powers, widespread international support and attention, and the Nazis' habit of keeping meticulous records of their genocidal activities.(20)

      During the heat of the fighting, the Allies committed themselves to obtaining the "unconditional surrender" of both Germany and Japan, and in the case of Germany, the Allies achieved their goal.(21) Unconditional surrender meant that the Germans would place themselves at the complete mercy of the victors; there would be no negotiated terms.(22) Unconditional surrender is not the most common way to end a war because few nations are so beaten and powerless as to have no leverage at all to demand escape or immunity for the surviving leaders, or some other concession.(23) When the Germans surrendered unconditionally on May 7, 1945, however, the German war machine was mostly destroyed and in disarray, Hitler was dead, and the Red Army had taken Berlin by assault.(24) United States and British forces controlled Western Europe from the Atlantic to the Elbe River and sealed off any escape.(25) Having witnessed and endured countless Nazi lies and atrocities, the Allies were of one mind not to negotiate.(26)

      Therefore, the Germans surrendered unconditionally to a delicately balanced international alliance. The "Big Four"(27) in the alliance disagreed fundamentally on postwar policy, but had depended on each other throughout the war. The United Kingdom under Winston Churchill wished to remain an imperial and colonial power.(28) Russia under Joseph Stalin wished to partition Germany, establish hegemony in Eastern Europe, and sponsor communist revolutions worldwide.(29) The United States under Franklin D. Roosevelt wished to rebuild world order based on the democratic principles of the Atlantic Charter and Woodrow Wilson's model of collective security.(30) The United States needed Britain and her colonies as bases for projecting power.(31) Britain and Russia depended on U.S. lend-lease aid.(32) France was defeated and humiliated in 1940 and had little strength in 1945, but the United States and the United Kingdom considered the restoration of French power necessary as a postwar counter-weight to Russia and Germany.(33)

      It was the German plan to try to break the Allied Powers by exploiting the natural division between the democracies and the communists.(34) After Hitler's suicide, German leaders preferred to surrender to the United States and the United Kingdom,(35) rather than face the wrath of the Russians.(36) The United States and the United Kingdom, for their part, refused to breach their alliance with the Russians, and the German surrender was accepted at Rheims by all the Allied governments, including the Russians.(37) The various armies cooperated in rounding up the leading Nazis, and while a few Nazis committed suicide, escape was impossible for most because almost every country in the world was at war with Germany and a German passport was virtually worthless.(38)

      At the insistence of the United States and by the London Agreement of August 8, 1945, the leading Nazis were to be tried by an international military tribunal.(39) The British feared that such a tribunal would provide the Germans with both an opportunity to embarrass their captors and a forum for Nazi propaganda.(40) The Russians would have preferred to dispatch their captives using Stalinist methods.(41) Though both the British and the Russians feared that some Nazis might not receive their just desserts because of...