Law, War and Crime

War Crimes, Trials and the Reinvention of International Law

Gerry J. Simpson

• Publisher: Polity
• Year: 2013
• ISBN:
  9780745657318
• Edition: 1
• Topic: Droit
• Subtopic: Droit international

From events at Nuremberg and Tokyo after World War II, to the recent trials of Slobodan Miloševi? and Saddam Hussein, war crimes trials are an increasingly pervasive feature of the aftermath of conflict. In his new book, Law, War and Crime, Gerry Simpson explores the meaning and effect of such trials, and places them in their broader political and cultural contexts. The book traces the development of the war crimes field from its origins in the outlawing of piracy to its contemporary manifestation in the establishment of the International Criminal Court in The Hague.

Simpson argues that the field of war crimes is constituted by a number of tensions between, for example, politics and law, local justice and cosmopolitan reckoning, collective guilt and individual responsibility, and between the instinct that war, at worst, is an error and the conviction that war is a crime.

Written in the wake of an extraordinary period in the life of the law, the book asks a number of critical questions. What does it mean to talk about war in the language of the criminal law? What are the consequences of seeking to criminalise the conduct of one's enemies? How did this relatively new phenomenon of putting on trial perpetrators of mass atrocity and defeated enemies come into existence? This book seeks to answer these important questions whilst shedding new light on the complex relationship between law, war and crime.

1

Law’s Politics
War Crimes Trials and Political Trials

This is a criminal trial. It is unfortunate that the accused has attempted to use his appearances before this Chamber to make interventions of a political nature.

Carla Del Ponte, Milosevic (Transcripts)

I never heard of indictments that resemble political pamphlets with poor, bad intentions.

Slobodan Milosevic, Milosevic (Transcripts)¹

Concepts of the political²

The star defendant and the Chief Prosecutor in the Milosevic case may have disagreed about the nature of the indictment or the conduct of the defence but they shared a conception of the political as something that did not belong in a war crimes trial. ‘Politics’ for Milosevic, Del Ponte and many others in the war crimes field is an abnormality or defect (Bassiouni, 1997). Ideally, the trial is a place liberated from politics and the contamination politics threatens. In the present chapter, I challenge this orthodoxy by arguing that war crimes trials are political trials. They are political not because they lack a foundation in law or because they are the crude product of political forces but because war crimes law is saturated with conversations about what it means to engage in politics or law, as well as a series of projects that seek to employ these terms in the service of various ideological preferences. War crimes trials are political trials because concepts of the political remain perpetually in play. What follows then is a discussion and dissection of the implications, associations and meaning of this insight.

The idea here is to show that war crimes law is neither simply the expression of Great Power preferences nor an assembly of institutional and doctrinal tools working against those preferences. Nor is it a practice that transcends politics altogether (and, in relation to which, politics is an external spectre threatening to undo its good works).³ Instead, I argue that war crimes law is a distinctive, sometimes legitimating, sometimes dissenting, often ambiguous, presence in international political life. The rest of the book seeks to demonstrate this through an unravelling of law’s place, subjects, promise, anxieties, hegemony and origins in the midst of trials conducted in relation to breaches of war’s fundamental norms (chapters 2–5) and at the fulcrum of justifications for war and arguments against war (chapter 6). In the end, war crimes law is a place where politics happens. This politics is constituted through the set of dialectical relationships that form the subject matter of the book.

But these relationships, too, can be understood through the prism of a meta-dialectic. Often, the sponsors of war crimes trials concede that the field of war crimes law is political but that this is a particularly liberal form of politics (Bass, 2000). I argue, in this chapter, that the politics of war crimes trials is a politics of compromise between a liberal cosmopolitanism with its roots in procedural justice, equality before the law and individualism, and an illiberal particularism (anti-formal, violent, sometimes chauvinistic, exceptional and collective).

I begin this chapter, then, by discussing (with a view to complicating our understanding of) some conceptions and misconceptions about the relationship between law and politics in the international sphere. This is in essence a description of some instincts circulating in the field about ‘the political’. All of this then congeals into four concepts of the political (and legal) that I take to be pervasive in the work done by international criminal lawyers and others. Here I discuss the ways in which these concepts manifest themselves in institutional innovation and at trial, and in related commentary. With a view to illustrating some of these points, the chapter ends with a brief analysis of a recent case at the International Criminal Tribunal for the Former Yugoslavia (ICTY) involving the Kosovan leader, Ramush Haradinaj, and an excursus on the negotiations at the Rome Conference to establish an International Criminal Court (ICC).

War crimes trials are political trials but they are not political in the sense imagined by many commentators and participants (e.g. Milosevic and Del Ponte) when they describe such trials as ‘political’. For them, the use of the epithet ‘political’ is meant to suggest that such trials are events or projects pre-destined to perform certain political functions, for example victor’s justice. The Moscow show trials are regarded as political trials in this sense, they are politics unconstrained by trial or judicial process. Here the phrase ‘political trials’ loses its second word to become all politics, no trial. Besotted with disclosing the political in law, critics often dismiss the presence of the legal, the procedural and the formal elements of trials. There is certainly an excitement about umasking law’s Olympian pretensions to detachment but this unmasking often masks the law that is left in trial after politics has its say.

There are a number of respects in which war crimes trials are political trials in a more interesting sense (I do not discuss all of these in detail in the book). They can be, for example, trials of the ‘political’ or, at least, indictments of the political. In the course of a war crimes trial, one of its (sometimes) unspoken purposes is to expose the grubby world of politics to the disinterested grandeur of the law. The trial is a way of conveying the message that mass criminality is what happens when politics is allowed to run riot. The very idea of lawlessness, then, is put on trial. The trial of the major war criminals at Nuremberg, for example, was a rebuke to the absence of law during the Third Reich, and this lack of law was directly on trial in ‘The Justice Case’ at Nuremberg.⁴

As well as politics in general, particular forms of politics are on trial. Most obviously, the trial is an investigation of, and accusation directed against, the political project of the accused. Accordingly, at Nuremberg, fascism (from the Soviet perspective) and Nazism (from the Anglo-American perspective) were on trial. In The Hague, during the Milosevic trial in particular, nationalism was in the dock, and in Arusha at the International Criminal Tribunal for Rwanda (ICTR), the consequences of racism were central to the process of judicial reckoning. Put more agnostically, war crimes trials can be understood as the proceduralized clash of competing ideologies. The Nuremberg War Crimes Trials, for example, are often described as the final moments of a struggle between liberal decency and Nazi evil (Clay, 1950: 250; Overy, 2003: 27). The trial, as chapter 4 demonstrates, also can be a trial of the accusers and their political projects. This was a feature of the ‘Barbie’ trial (where the French state was subject to an agony of self-reflection) and it loomed large again during the trial of Saddam Hussein. On the other hand, the clichéd reference to ‘victor’s justice’ conveys the idea that these are political trials in the sense that the prosecuting party will pursue a certain type of politics throughout the case in order to vindicate its behaviour in a recent armed conflict. Finally, a war crimes trial, as an event, can be viewed as a trial of politics in the sense of a series of tribulations or tests to be undergone before a new politics can emerge untainted by the old.

So, the phrase ‘political trials’, though it carries with it a degree of power, is laden with ambiguity and instability. The politics of political trials are plural and contested, and the legalism of such trials is variegated. The ‘legalism’ pursued at The Hague in the cases before the ICTY is to be distinguished from the more attenuated and martial forms of law found at Nuremberg. Equally, the ‘politics’ pursued in the Eichmann case are distinct from those found in, say, the Akayesu judgment at the ICTR.⁵ This book is an exploration of the many different forms this politics might take from, for example, the production of knowledge about the state of international or national life (teaching history), to the dissemination of alternative histories and politics (dissidence).

When we treat our enemies as criminals, when world-historical evils are proceduralized or vengeance legalized, we end up with political trials. Of course, there is a sense in which the trial and conviction of a mobile phone thief is political (in its response to public outrage or as an expression of law’s fixation with property crime). Every trial from the prosecution of a road-rage killer to a summary hearing on shoplifting is to some extent political, involving questions of social power, prosecutorial discretion and legislative choice. Meanwhile, show trials such as those held in Moscow in the 1930s, also are political (perhaps solely political or merely theatrical – they operate within an edifice of legal procedure but are not constrained by that procedure). A war crimes trial is different from both these types (though the continuities with show trials are explored in chapter 5). War criminals are not just ‘plain, ordinary murderers’.⁶ The typical war crimes trial is political in the sense that it can involve the performance of political contestation within the confines of a somewhat constraining legal procedure.⁷

What I want to do in the remainder of this chapter is to disentangle a little more the discourse around politics and law in the war crimes field. I begin by sketching some concepts of the political found in the field as a whole. I label these: deformed legalism (bad law), transcendent legalism (good law), utopian (or delusionary) politics (bad politics) and legalistic politics (good politics). It is not my intention, in doing this, to referee the disputes between the four. I do conclude, however, that war crimes trials are best understood as a form of legalistic politics, a law in the midst of politics and not detached from them (Shklar, 1964).

1.1 Deformed legalism

The most ubiquitous criticism made of war crimes trials is that they are political and therefore illegitimate. Slobodan Milosevic began his Defence at The Hague by characterizing the trial as a sham: ‘I wish to say that the entire world knows that this is a political process. So we are not here speaking about legal procedures that evolve into political ones. This is a political process to begin with, and as far as what I would prefer, I would prefer the truth.’⁸

Saddam Hussein concentrated his fire on this aspect of the trial, too. On 1 July 2004, in his first appearance before the court, he portrayed the judges as American lackeys and the trial as ‘Bush’s theatre’. These comments recall the efforts of the Nuremberg defendants to cast their trial as a piece of political theatre on the part of the Allies (chapter 5). In Tokyo, Hideki Tojo, the former Japanese Prime Minister, said of his trial before the IMTFE: ‘In the last analysis this trial was a political trial. It was only victor’s justice’ (Minear, 1971: 3). Even some of the judges characterized the trial as political. Justice Röling conceded that the Japanese were being tried for ‘political crimes’ (Minear, 1971: 53) while Justice Pal agreed with Georg Schwarzenberger that the distinction between aggressive and defensive wars was of purely ‘propagandist relevance’ (Pal, 1955: 264).

A subtler version of this image is found in the various constitutional challenges to the authority or jurisdiction of tribunals in general. The legitimacy challenge dates back to Charles I who, at his trial, protested ‘… at the illegality and unconstitutionality of the court while avoiding the fact that the evidence showed him to be guilty as charged’ (Robertson and Devereux, 2006). This challenge to the legitimacy of the proceedings is a staple of war crimes trials. The Defense Counsel Appeal to General MacArthur described the verdict in the Tokyo War Crimes Trials as an ‘atrocity against the law and justice’ (21 November 1948). In the Tadic case, the defence argued that the ICTY had been improperly established, that the Security Council had no power vested in it by the UN Charter to create criminal tribunals and that the creation of such bodies had no nexus to the questions of peace and security over which the Council did have authority.⁹

Lawyers, in particular, from James Brown Scott in the 1920s to Justices Harlan Fiske Stone, Pal and Rutledge in the 1940s to Dr Servatius in Jerusalem in 1960 and onwards, have, to varying degrees, objected to the application of legal procedures to fallen enemies on the basis that this would politicize law. The legalist criticisms have been numerous but they can be divided into three broad categories. First, it is argued, international politics simply does not lend itself to the application of criminal sanction of the sort contemplated in war crimes trials. The international system is decentralized and horizontally ordered. It is, in Hedley Bull’s famous phrase, an ‘anarchical society’, i.e. one in which there is no single unifying sovereign authority with a governmental and judicial apparatus. Criminal law depends on the existence of precisely this sort of sovereign with the capacity to emit the legislative orders from which criminal sanction acquires its legitimacy. Furthermore, criminal law is the juridical re-enactment of the moral life of a society. It is a prerequisite of the criminal law that there be at least a minimal level of moral consensus. This, too, according to these critics, is lacking in international society. What (ersatz) criminal law there is must be based on E. H. Carr’s ‘harmony of interests’, a harmony imposed by, and representing the particular interests of, a small coalition of Great Powers or ‘self-regarding units’ (Zimmern, 1936: 94–8) within the system.

The result, then, and this is the second line of legalist criticism, is that war crimes trials can be partial and selective. They are a form of selective justice (McCormack and Simpson, 1997; Cryer, 2005). As Dr Servatius said at Nuremberg: ‘To fail is abominable crime, to succeed is sanctified action’. ‘Victor’s justice’ is a not hugely enlightening cliché of critical commentary around war crimes trials but it may be useful shorthand for the concerns of legalists.¹⁰ On 8 August 1945, the Allies signed the London Charter establishing an international tribunal to try the major German war criminals. This was to presage a new era in which the requirements of justice and the concerns of universal human rights were to guide the conduct of international relations. Acts of criminality during war were declared intolerable and the wholesale destruction of civilian populations was condemned as a crime against humanity. On the same day in 1945, the United States dropped its second atomic bomb on Japan devastating the city of Nagasaki and immediately killing at least 70,000 of its largely civilian inhabitants. The history of war crimes is a history suffused with irony but the conjunction of these two acts – one, a manifesto declaring the subordination of force to law; the other, an act of violence contrary to a basic requirement of the laws of war – is perhaps the most ironic of all. For some observers, Nagasaki is a symbol of the death of an idea at its birth: the idea of universal application of international criminal law to all offenders regardless of affiliation, status or nationality (McCormack and Simpson, 1997).

It might be possible to take a more optimist view and argue that Nuremberg and Tokyo are imperfect precursors to a more consistently enforced, and jurisdictionally complete, legal order such as that found in, say, much of Western Europe today. Whatever the asymmetrical mechanisms present at Nuremberg and Tokyo, the argument goes, the victor’s justice criticism carries less weight in relation to the ICTY and the ICTR where the concept of victors and losers lacks purchase. When the trials in The Hague began, defendants were largely drawn from the Serbian factions who had themselves gained a great deal of territory from the internal war in Bosnia (gains largely ratified by the international community). In any event, the Court has turned its attention to Bosnian Muslims and Croats (Delalic), and the current trial focusing on the Srebrenica massacre in 1996 involves the leader of the Bosnian Muslims in that area (Oric).¹¹ The ICC, of course, is to have a form of general jurisdiction applicable to alleged violators wherever or whoever they happen to be.

However, even the current round of international tribunals has not been impervious to accusations of victor’s justice. Carla del Ponte, the ICTY Prosecutor, has complained of political pressure from Rwanda designed to prevent her investigating military abuses carried out by the Rwandan Patriotic Front (RPF). She was encouraged to prosecute those who committed the genocide (the Hutu Interahamwe) but not war crimes carried out by soldiers (on both sides). Eventually, she claimed, this led to her being removed from her post as Chief Prosecutor at the ICTR (Osiel, 2005).¹²

The spectre of victor’s justice, then, will not disappear. The Rwanda Trials (and to an extent those in Sierra Leone and the proposed trials in Cambodia) are directed towards the prosecution of the defeated enemy. The Review Committee established by the Prosecutor at the ICTY to assess whether indictments should be issued against NATO personnel following the Kosovo war decided, in a report criticized by commentators, that there was no prima facie case to answer (Benvenuti, 2001; Bothe, 2001). And, now, the ICC has begun investigations into four situations, all of them in African states: namely, Sudan, the DRC, the Central African Republic and Uganda. The choice of potential defendants raises suspicions that the Court has been vested with the task of applying international justice to international society’s outsiders.¹³ International criminal law, from the perspective of the industrialized North, appears to be what other states breach. This concern is given added weight when one considers the various methods by which some Western states have sought to evade the application of international justice. The United Kingdom (as part of the International Security Assistance Force), for example, has a Statu...

Table of contents

• Cover
• Title page
• Copyright page
• Dedication
• Acknowledgements
• Preface
• 1 Law’s Politics: War Crimes Trials and Political Trials
• 2 Law’s Place: Internationalism and Localism
• 3 Law’s Subjects: Individual Responsibility and Collective Guilt
• 4 Law’s Promise: Punishment, Memory and Dissent
• 5 Law’s Anxieties: Show Trials
• 6 Law’s Hegemony: The Juridification of War
• 7 Law’s Origins: Pirates
• 8 Law’s Fate
• Select Bibliography
• Index