Sitting in the Dock of the Day: Applying Lessons Learned From the Prosecution of War Criminals and Other Bad Actors in Post-Conflict IRAQ and Beyond

Author:Major Jeffrey L. Spears




Among free peoples who possess equality before the law we must cultivate an affable temper and what is called loftiness of spirit.2

I. Introduction

The history of Europe is a history of war. Mongols,3 Huns,4 Moors,5 Turks,6 Romans,7 and modern Europeans have fought and died throughout

Europe for control of the continent. Japan knew a similar culture in which war and its practitioners held a venerated position in a society antithetical to democratic principles and the rule of law. These societies gave birth to two of the most efficient war machines of history: Adolf Hitler's Germany and Emperor Hirohito's Imperial Japan. United, Germany and Japan, along with their lesser Axis Allies, waged a war of conquest that spread to all of the populated continents. The United States and her Allies found themselves in a struggle for national survival in the face of a powerful coalition bent on world conquest.8

Though all wars expose its participants to unique horrors, World War II brought the world atrocities of historic proportions. Jews were murdered by the millions throughout Europe in furtherance of Hitler's master plan of a Europe purged of what he deemed to be racially inferior stock. In addition, Japanese soldiers visited horrors upon captured soldiers that often included execution, decapitation of the dead, and cannibalism. The Japanese Government created corps of foreign sexual slaves for the wanton use of their armed forces.9

Yet, today it is difficult to imagine a modern war between the United States, Germany, and Japan. Western Europe has known its longest period of peace in its long and bloody history.10 Japan has transitioned to democracy, shed her militant culture, and notwithstanding her recent economic setbacks, remains one of the most efficient and robust economies on earth.11 On the strategic front, Germany sits with the United States as an equal voting member at NATO,12 and serves with American troops in co

bat operations abroad.13 Japan is a significant American ally in the Pacific.14

This dramatic shift can provide lessons to help secure the successful resolution of hostilities in tomorrow's wars. Many factors set the stage for a series of successful transitions. These transitions were first from war to peace, followed by cooperation in the reconstruction, and ultimately a transition toward a political and economic alliance. The reestablishment and the development of respect for the rule of law and democracy in Germany and Japan was paramount to the reconciliation of the former belligerents and their transformation into future Allies.

Against this backdrop, this article examines the role the various systems of justice played in the ultimate reconciliation of the belligerents of World War II. From this standard, the article then evaluates modern juris-prudential trends for the prosecution of war criminals. Section II provides an overview of the goals of the traditional American justice system as compared to those of international and national systems of justice used to prosecute violators of the laws of war, other crimes susceptible to post-conflict prosecution by the international community, or both. Section III analyzes the goals, procedures, and effectiveness of the international military tribunals created for the prosecution of war criminals in the wake of World War

II. Section IV provides a similar analysis for the use of national courts and commissions to try those who violate the laws of war. Sections III and IV also discuss the effectiveness of the studied systems and highlight lessons learned from the experience. Section V focuses on the important goal of reconciliation as an aspect that any system of justice established after the cessation of hostilities should incorporate.

Based on this background, section VI proposes a system of justice for the prosecution of Iraqi war criminals15 apprehended after the liberation of Iraq. This proposal leverages the lessons of the past to develop a system of justice for war criminals that contributes to the prospects for a lasting peace and the reconciliation of the various domestic and international pa

ties.16 This proposal is based upon a philosophy that any system of post-conflict justice for war criminals must serve the ultimate ends of peace and reconciliation. And though the process should include the punishment of the wrongdoer, the process used to achieve these ends must be carefully tailored to the situation. Further, efforts must be undertaken to establish legitimacy and transparency. Transparency serves to build confidence in the outcome and, critically, to provide the local population with immediate insight into the rule of law in action.

II. Justice for the Violators of the Laws of War

American jurisprudence recognizes numerous theories for bringing to justice those who violate criminal laws. These theories include: punishment of the wrongdoer,17 rehabilitation of the wrongdoer, protection of society from the wrongdoer, specific deterrence of the wrongdoer, and general deterrence of the class of wrongdoers in question.18 To this list of

motivations, military courts add the goal of the preservation of good order and discipline in the armed forces.19

These goals are equally important considerations when seeking the prosecution and punishment of those who violate the laws of war. Circumstances surrounding the prosecution of war criminals, however, may require the addition of goals that eclipse those sought by traditional systems of justice. These goals include complementing and encouraging respect for the rule of law, encouragement of democratization, and reconciliation of the belligerents. Consideration of these goals is crucial in developing the appropriate international forums for the prosecution of war criminals. In some cases, these ultimate goals may overshadow the traditional purposes of the criminal justice system.20

"War criminal"21 is an imprecise term that became synonymous with a broad class of wrongdoers during the International Military Tribunals (IMTs)22 of World War II. Misconduct prosecuted before these tribunals fell into three broad categories: crimes against peace,23 war crimes,24 and crimes against humanity.25 Personal jurisdiction, however, was severely limited by both the Tokyo and Nuremberg IMTs in that they were limited to only "major" violators.26 As discussed herein, this limited scope con-

tributed to the effective contribution of the IMTs toward the overall post-war goals of the Allies.27

By design, the limited scope of the IMTs left a vacuum that was to be filled by both national military commissions and domestic prosecutions through local civilian courts.28 These courts and commissions afforded individual nations the opportunity to try cases important to their citizens, such as when their soldiers had been victimized by wrongdoers below the scope of the jurisdiction of an IMT. Likewise, national courts and commissions pursued war criminals and saboteurs in the country where the crimes were committed.29

Opponents of ad hoc systems argue that such tribunals and military commissions are too inefficient for effective international justice.30 They also note that some jurisdictions may fail to bring lesser war criminals to justice, though within their reach, because of political reasons or a poorly developed legal system.31 Due to such concerns, there has been a rise in the interest of standing tribunals with prospective jurisdiction leading to the International Criminal Court (ICC), and greater support for the concept of universal jurisdiction.32 These two approaches, however, do not provide for an effective solution for Iraq; and as discussed below, both of these movements should be rejected. Many of the arguments in favor of these methods of justice appear justified when analyzed within the limited framework of the traditional goals of a criminal justice system.33 The ICC

and the expansive use of universal jurisdiction, however, can undercut the overarching goals of restoration of peace and reconciliation of the belligerents in a post-armed conflict situation.34

For practical and legal reasons, the ICC will not be available for the prosecution of war criminals apprehended in Iraq in the wake of a regime change.35 Further, any efforts by third parties to rely on national courts outside of Iraq to prosecute wrongdoers under a theory of universal jurisdiction would provide an incomplete solution at best.36 Post-conflict Iraq should include a system of international justice that uses an international military tribunal complemented by national commissions conducted in Iraq and eventually by reestablished Iraqi domestic forums.37 This is a daunting task without an "off the shelf" solution. Any efforts in this area require a careful evaluation of the procedures of the past and consideration of the lessons learned.

III. The Seeds of International Justice-World War II International Military Tribunals

Iraq, unfortunately, is not the first country in the modern era to bring war to her neighbors and terror to her people. The Allied powers of World War II were confronted with atrocities of an unprecedented nature directed at soldiers, civilians, and the very fabric of society. Yet no court of an international composition existed to bring the wrongdoers to justice. Furthermore, whether such a tribunal was necessary or even legal was the subject of much debate. Prime Minister Winston Churchill questioned the

need to try any of the major war criminals, whom he referred to as "arch-criminals," under the theory that summarily executing them upon identification was legally justified.38 Others questioned the legitimacy of attempting to find criminal conduct...

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