International war crimes & other criminal courts: ten recommendations for where we go from here and how to get there - looking to a permanent international criminal tribunal.

• Author: Aronofsky, David

INTRODUCTION

I am especially pleased to participate in the 2005 Sutton Colloquium, "Protecting Human Rights: A Global Challenge." When Professor Nanda initially contacted me about this opportunity, we discussed what I might contribute and we decided it would be useful for me to review the various international war crimes tribunals which have emerged since the Bosnia and Rwanda atrocities in the early 1990's. I willingly chose this topic because of my long-time intellectual interest in bringing international war criminals and other international human rights violators to justice.

Every year I show my University of Montana Public International Law students the film Judgment at Nuremberg (2) to illustrate why we must never again allow a country's judicial system to help destroy the legal rights of people the system is supposed to protect. This depiction of the Nuremberg Tribunal's trial of Nazi Germany judges and prosecutors who used the law to facilitate the Holocaust is a "must-see" for everyone interested in meting out justice to those who themselves forgot they were required to do so. I am always amazed by how American law students react when they learn what judges who become part of a savage regime are capable of doing from the bench.

I have also shown Court Television's outstanding video of the International Criminal Tribunal for the Former Yugoslavia (ICTY) trial of Dusko Tadic to not only my University of Montana law students, but also to Russian military academy students from Central Asia who come to Montana for rule of law education and training. These young cadets readily grasp the significance of what the ICTY was created to do, namely subject military and paramilitary officials to international law and justice principles. The Tadic video requires these young future military leaders to think about how far they might be willing to go in straying from, or alternatively, adhering to, well-established Geneva Convention rules and principles applicable to their careers as professional soldiers. Our class discussions always seem to generate multiple "teaching moments," or perhaps better stated, "learning moments," as these young people from countries with few modern law and justice traditions grapple with what the video portrays.

My own intellectual curiosity regarding these tribunals became permanently whetted when, during a visit to the ICTY a number of years ago, a senior ICTY official asked my opinion on whether the ICTY endeavor was worth the effort and cost. This was long before Slobodan Milosevic was hauled before the ICTY, and the mood at The Hague seemed one of doubt. I thought about this question and responded that it might well be worth the effort if even one war criminal were tried and convicted, because this would set the stage for others to be tried either in The Hague, or in some other court created to hear these cases. I further stated that the Tadic case was probably only the beginning, with others surely to come. My oldest daughter, a high school student who accompanied me on this ICTY visit, asked me after we left why the world community would not try war criminals who committed the Bosnian and Rwandan atrocities. Let me suggest that answering such a question from a smart, idealistic adolescent is a difficult task.

In preparing for this year's Sutton Colloquium program, I reflected on all the above experiences, as well as my own thinking about the state of international criminal tribunals to date. Upon such reflection, I have reached a number of conclusions, surprising even to myself, about where we go from here. I start with the proposition that what we have seen thus far, beginning with the Nuremberg and Tokyo War Crimes Tribunals, may reflect a well-meaning effort, but the world can and must do better. I consider the International Criminal Court (ICC) a noble idea which cannot achieve its purposes in any meaningful way as long as so many key nations in the world refuse to participate, and more importantly, as long as cooperation with ICC jurisdiction remains essentially voluntary and discretionary. Instead, only the UN Security Council has the stature, and more importantly, the power, to compel adjudication of all major international criminals in a manner likely to inspire world confidence. I have set forth below 10 specific recommendations intended to provoke debate, and perhaps ultimately to provoke changes, concerning, using a new UN Security Council Permanent International Criminal Tribunal (PICT) (3) to bring major perpetrators of international atrocities to justice.

1. RECOMMENDATION ONE: RECOGNIZE THE NEED TO DO BETTER IN BRINGING MAJOR INTERNATIONAL CRIMINALS TO JUSTICE IN A TRIBUNAL OFFERING GREATER PROTECTIONS FOR VICTIMS AND DEFENDANTS ALIKE

   The world's nations, acting through the United Nations, must do a better job than we have seen to date of bringing justice to perpetrators of war crimes, genocide, crimes against humanity and other international criminal atrocities. Too many known perpetrators of horrible international crimes remain at large and may never be tried unless drastic steps are taken. (4) If this situation continues, confidence in rule of law and justice principles will wane with time and other, more drastic, means to achieve justice for the victims of such crimes could well be attempted to the detriment of world peace and stability. (5)

   I therefore recommend first that we accept the notion that the world must bring the leaders of international criminal atrocities to justice promptly and fairly. Starting with Nuremberg and Tokyo, creation of special international courts in response to specific global tragedies has been controversial among scholars. (6) All too often, a Victor's Justice cry has arisen.

   The principal U.S. architect of the Nuremberg Tribunal, Justice Robert Jackson, noted: "This is the first case I have ever tried when I had first to persuade others that a Court should be established, help negotiate its establishment, and when it was done not only prepare my case but find myself a courtroom in which to try it." (7)

   Justice Jackson undoubtedly did not see the troubling implications of his remarks because when he made them the need for Nuremberg's trials was all but unquestioned. (8) Nevertheless, with the benefit of historical hindsight Justice Jackson's description of creating a legal scheme to try war criminals as he went along is particularly apt. Even Professor Meltzer, who collaborated with Justice Jackson at the Nuremberg trials, has suggested that Nuremberg may have operated on problematic ex post facto legal principles characteristic of what military victors often espouse. (9) The "Victor's Justice" problem seems especially applicable to the Tokyo trials, based on scholarly opinion. (10)

   The ICTY and the International Criminal Tribunal for Rwanda (ICTR) were ad hoc tribunals created by the UN Security Council in response to horrible, wholesale atrocities in Bosnia and Rwanda. (11) They were not supposed to connote Victor's Justice; the Security Council created them on behalf of all world nations. (12) The ICTY in particular acknowledged fairness problems with the Nuremberg and Tokyo Tribunals, adopting in its initial phase evidentiary and procedural rules designed to prevent their recurrence. (13)

   Recent reassessments, however, have begun to raise substantial Victor's Justice perceptions about the Rwanda Tribunal, which was created to address some of the greatest atrocities in Rwanda and where victims have the greatest need of justice. (14) This in turn raises the question of whether any ad hoc tribunal created to hear significant international law cases in one particularized context can fully assuage reservations about possible Victor's Justice problems.

   Moreover, even the ICTY is not free from Victor's Justice stigma; many Serbs now view Slobodan Milosevic as a victim of justice-run-amok over the ineffective ICTY handling of his televised trial. (15) It is also difficult to understand why many Serbs would not view ICTY as the result of Victor's Justice when the ICTY was created solely to address acts committed in what many Serbs believe was rightfully Serbian territory. (16) At a minimum, a permanent tribunal such as the proposed PITC, with global jurisdiction, undermines, if not eliminates, the basis for such perceptions. Indeed, one must question whether the Security Council demonstrated too much selectivity in not creating similar tribunals to address these kinds of atrocities everywhere they occurred, such as Kuwait. Instead the Security Council only created them for situations where the Security Council had the power to make such tribunals work without resort to significant military force. (17)

2. RECOMMENDATION TWO: RECOGNIZE AND UTILIZE SECURITY COUNCIL POWER TO REQUIRE COOPERATION WITH THE PICT

   The Security Council should assume the role of creating a single PICT with jurisdiction over all international acts of genocide, crimes against humanity, war crimes and such other offenses against the law of nations as the Security Council chooses. Only the Security Council has the legal power to override an individual nation's shielding of international criminals and require the national cooperation necessary for the tribunal to exercise its powers effectively, and most commentators consider such cooperation crucial for prosecuting (as well as defending) the cases. (18) Even the ICTY and ICTR have faced difficulties in obtaining such cooperation from individual states; this may well be attributable in part to the somewhat limited geographical jurisdiction of these two Tribunals. (19)

   The atrocities committed in East Timor and Sierra Leone provide two examples of why there should be a stronger and more direct Security Council approach to mandating cooperation. In Indonesia the failure to prosecute high-ranking generals and others who planned the East Timor slaughters may never be tried in their own country. (20) Charles...