Selective reaction to atrocity: war crimes and the development of international criminal law.

• Author: McCormack, Timothy L.H.
• Position: Conceptualizing Violence: Present and Future Developments in International Law

That four great nations flushed with victory and stung with injury stay

the hand of vengeance and voluntarily submit their captive enemies to

the judgment of the law is one of the most significant tributes that

Power has ever paid to Reason.(1)

While supporting the Security Council's establishment of international

tribunals for Yugoslavia, where consent to a treaty creating such a

tribunal could not be obtained, and Rwanda, I am concerned about

the selectivity involved in a system where the establishment of a

tribunal for a given conflict situation depends on whether consensus

to apply chapter VII of the UN Charter can be obtained. What is

needed is a uniform and definite corpus of international humanitarian

law that can be applied apolitically to internal atrocities everywhere,

and that recognizes the role of all states in the vindication of such

law.(2)

1. INTRODUCTION

   International criminal law, as it is currently known, would not exist without the extensive development of the international law of war crimes. The two fundamental notions of individual culpability for the commission of international criminal acts and the establishment of international structures and procedures for the prosecution of such acts are both firmly entrenched in international criminal law. The accepted status of these two notions in general international criminal law is a direct consequence of the legitimation of both notions through the development of the international law of war crimes. There is no reason, in principle, why individuals cannot be tried by international tribunals for alleged violations of any international crime and the extension of the corpus of international crimes beyond the otherwise limited context of armed conflict is a welcome development. The reality that innumerable alleged violations of international law have gone unpunished, despite the expectations raised by the Nuremberg and Tokyo Tribunals, has highlighted the gap between principle and practice in international criminal law. It is unfortunate, though not entirely unexpected, that the weaknesses in the current international law of war crimes have been replicated in broader international criminal law. A key theme in this Article is that the historical development of the international law of war crimes is directly relevant to an understanding of the inherent weaknesses in contemporary international criminal law.

   This Article includes a brief historical survey of three distinct periods in the development of the international law of war crimes: (1) the period prior to World War I, with particular emphasis on Ancient Civilizations, Europe in the Middle Ages, and the late eighteenth and early nineteenth centuries; (2) the period during World War I and through the outbreak of World War II; and (3) Nuremberg and Tokyo and the period following World War II. To accommodate the inevitable constraints of space, the Article's survey of the historical development of the international law of war crimes is necessarily brief and reliant upon generalities.(3) However, one of the purposes of the Article is to examine the origins of contemporary international criminal law and to demonstrate emerging weaknesses in the formulation and, to a larger extent, in the application of the law.

   The history of war crimes reveals a dual selectivity on the part of the international community. This selectivity is first found in relation to the acts the international community is prepared to characterize as "war crimes," and secondly, in relation to the particular alleged atrocities the international community is prepared to collectively prosecute. This dual selectivity has been born of an exclusive reliance on ad hoc and ex post facto reactions. Despite repeated criticism of this reactive approach as inconsistent and hypocritical, the international community, to date, has been unwilling or unable to deal with war crimes in a more comprehensive, principled, or proactive way. States have consistently demonstrated a defensive attitude toward the protection of exclusive national jurisdiction over their own nationals and have only reluctantly supported the creation of collective international structures for the prosecution of other States' nationals.

   This Article considers the legacy of the Nuremberg and Tokyo Tribunals which broadened the categories of international crimes and laments the international community's failure to fulfill the expectations which Nuremberg and Tokyo raised. The same dual selectivity apparent in the international law of war crimes is evident in relation to other international crimes. Given the influence of the international law of war crimes on the broader development of international criminal law, the existence of the same dual selectivity is hardly surprising. The international community is currently negotiating a new and potentially comprehensive international criminal law regime. Although this current process offers opportunities to address the inadequacies of the past, this Article concludes that prospects for the efficacy of this regime are bleak.

2. THE EMERGENCE OF KEY PRINCIPLES PRE-WORLD WAR I

   1. Attitudes in Ancient Civilizations

      The earliest extant writings on the strategy of war were drafted in the sixth century B.C. by the Chinese warrior Sun Tzu. In his work, The Art of War,(4) Tzu prescribed a number of humanitarian limitations on the conduct of hostilities. There is nothing in Tzu's writings to suggest that the limitations he prescribed formed part of a body of law or morality binding on those engaged in armed conflict. On the contrary, the principal motivation for Tzu's comments seems to have been related to the most effective means of achieving a desirable outcome in the conduct of hostilities. However, that is not to say that Tzu's writings had no effect on an emerging law on the subject.

      Only one century after Tzu's writings, a number of incidents in Ancient Greece suggest an expectation in that society of respect for humanitarian rules in the conduct of armed hostilities.(5) One particular incident, referred to by Xenophon and cited by Maridakis,(6) is worthy of note. In 405 B.C., during the twenty-four year war waged between Athens and Sparta on the shores of the Hellespont, Lysander, the Spartan commander, had seized Lampascus, a city allied to the Athenians.(7) The Athenians responded by seizing Aegospotami, a city facing Lampascus.(8) For several days the Athenians engaged Lysander in naval combat, building up their forces before Lampascus at dawn and returning to Aegospotami at nightfall.(9) Lysander did not move the position of his forces, except to send scout ships to monitor the Athenians' movements.(10) On the fifth day, these ships mounted shields upon their prows, indicating that the Athenians had disembarked and were dispersed in the Chersonese.(11) Lysander moved upon them, capturing the crewless Athenian fleet and rounding up most of the men on land.(12) Of the 180 vessels, only eight were found with crew aboard.(13) Of these, Admiral Conon's ship took refuge in Chypre, and Paralos' ship escaped and returned to Athens to recount what had happened.(14)

      Absolute master of the situation, Lysander transported the vessels and prisoners to Lampascus and secured the Athenian strategists Philocles and Adeimantos. Xenophon provided the following account of subsequent events:

      Then Lysander called together the Allies and asked them to

      deliberate upon the fate of the prisoners. A great number of

      accusations were made against the Athenians. They were reproached

      for illegal acts already committed and for those acts which they had

      been determined to commit, contrary to law, when victors at sea. The

      Athenians had agreed to cut off the right hands of all prisoners taken.

      In addition, upon capturing two ships--one from Corinth and the

      other from Andros--Philocles had ordered all men to be thrown

      into the sea to their deaths. Many other allegations were made and it

      was decided to execute all Athenians amongst the

      prisoners, except Adeimantos, because he alone had opposed the

      Assembly's vote to cut off prisoners' hands. Lysander first asked

      Philocles what pain he deserved for having betrayed Greeks,

      contrary to the law, then sliced off his hands.(15)

      Maridakis concludes that by calling together the allies, Lysander effectively constituted a tribunal for the express purpose of deciding the fate of Athenian prisoners against whom war crimes allegations had been made. A great number of people contributed to the debate. The number and promptness of depositions suggests, according to Maridakis, that the relevant acts aroused considerable public outrage.(16) Although the Nuremberg and Tokyo tribunals were constituted 2000 years after Lysander's tribunal, there are some remarkable similarities--calling together victorious allies to determine the subject--matter jurisdiction of the tribunal, establishing the processes for the trial of alleged offenders, and punishing those convicted. Of course, there is no suggestion that Lysander constituted an "international" tribunal or that the relevant law was anything other than the law of the Greeks. In those respects, the analogy with Nuremberg and Tokyo is imperfect. However, there are suggestions of an emerging consensus to impose constraints on the waging of war around the time of this particular incident. Maridakis also cites Plato who, in writing his Republic,(17) categorically condemned the manner in which Greeks "now" conducted themselves, one against the other, in times of war. This opinion, Maridakis argues, not only reflects the personal view of Plato but, more likely, reflects the impression made upon him by contemporary admonishment of cruelty in wartime.(18)

      Two hundred years after these developments in the Mediterranean region, Hindu culture in South Asia was subjected to legal regulations governing the conduct of armed hostility.(19) The Manu Smriti or Code of Manu,(20) dated around 200...