War Crimes courts and tribunals established over the last 20 years have changed the way the world citizen can think. Now – never before – s/he (hereafter ‘he’ for brevity) can say of someone seen as responsible for horrors in conflict ‘send him, occasionally her, to The Hague’. He probably has in mind one of the courts, of various kinds, that are the modern successors to earlier efforts to deal with war by law.
There are three types of modern international criminal courts.
First, there are two ad hoc– one-off – tribunals set up by the UN for particular conflicts: The International Criminal Tribunal for the Former Yugoslavia (ICTY) established in 1993 to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 and the International Criminal Tribunal for Rwanda (ICTR) established in 1994 to try offenders for genocide and other such violations committed in the territory of neighbouring states, between 1 January 1994 and 31 December 1994.
Second, there are other ad hoc hybrid courts with limited conflict-specific jurisdictions normally set up and operating in the country of the conflict that are run by international and local national judges and lawyers working together: these courts deal with conflicts in Cambodia, East Timor, Sierra Leone and Lebanon.
Third, there is the treaty based International Criminal Court set up and maintained as a permanent court not by the UN but by those 121 countries that have now ratified the ‘Rome Statute’
These tribunals and courts resemble ordinary national criminal courts in many ways. As a result the world citizen may assume that they, like national courts, are part of a coherent, judicial crime and punishment system that happens to be international. Nothing could be further from the truth.
Comparison of national and international ‘systems’ can help our understanding of both. A national judicial system is very familiar to the citizens of the nation concerned, whether they are ever involved in it as victim, defendant, lawyer or judge. Both the law of the system and its procedures will be generally known and, more important, the citizen can approve, disapprove, seek to change - even effectively to change - them through his vote or by becoming a legislator. More easily for the citizen – and without his having to take any direct action – in developed and open societies newspapers and other media of communication will be reflecting his and others’ views on the legal system of the country every day: open any newspaper, from a serious broadsheet to a tabloid, and be surprised at how many stories are actually testing and challenging the law and its operation: straight legal reporting reflects the law and legal practice as it is; criticism of existing law and especially of sentencing challenges the law and seeks its change; professional or personal errors by judges or lawyers are always good media ‘copy’, whether in showing how greedy for money lawyers are as they risk losing independence by sharing in their clients’ fortune or how this judge or that should not have indulged in one form of indiscretion or another.In modern vernacular the citizen ‘owns’ the law and the legal system by which his day-to-day conduct is regulated.
He has no such proprietary rights over the international law under which he may live or die.
WWII showed us that we have the potential to destroy ourselves through the atomic bomb. The Holocaust demonstrated how we have the potential to persuade each other and ourselves to do the worst possible and unimaginable things to each other. Taken together they may make international criminal law worth a few minutes of our time.
Differences between national and international legal ‘systems’:
In a national system any serious crime committed today can and will be investigated and may be prosecuted this year, next decade or even later. The legal system is with the citizen until death - whether to help him if a victim or to turn on him if a villain.
Crimes in conflict are treated very differently. Here is a (necessarily non-exhaustive) list of major conflicts since 1900 marked as to whether subject to judicial or other intervention or inquiry. It shows unsurprisingly, how small has been the number of conflicts subject to any form of investigation.
Highly selective though the process of choosing conflicts for judicial intervention has clearly been, some choices are easy enough to understand. Both World Wars could not be missed. Once the political situation permitted, Cambodia might be thought of as an obvious candidate because of the numbers killed. The selection of Rwanda may seem similarly obvious but it, along with the former Yugoslavia, were considered by many – at the time – to be selections by guilt within the UN over UN failures to guard citizens of countries that had no sufficiently powerful patrons to stand in the way of investigation. Of the African countries with cases running or pending at the ICC, some, in particular the DRC, Uganda and Kenya, referred themselves to ICC investigation. But those ‘self-referrals’ are, at least in part, said to reflect the desire of the referring governments to have the ICC on their – the governments’ - sides in continuing conflicts and to make the governments’ enemies the international pariahs, fairly or not.
And what about negative selection, or rather non-selection, for judicial intervention? No one, of course, has sought to investigate the mass killings of millions perpetrated by the Russia under Stalin between the two world wars, nor to inquire into the Korean War (as one example) or into the grave crimes committed in North Korea since; similarly with Burma: Aung San Suu Kyi has been allowed a world tour with full publicity but pressure for international judicial review of mass crimes committed in recent history reduces. Respect – or some other state of reasoning - for territorial neighbours China and India, stands in the way of investigation when the political going is better just as it did when the going was so much worse. The victims of some country conflicts are simply better overlooked. The Russian invasion of Georgia or the wars in Iraq and Afghanistan – all of which could engage ICC jurisdiction - may be seen as conflicts that have escaped selection for various reasons including the identity of the states involved. And the late Robin Cook, when Foreign Secretary, observed that the ICC was ‘not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.’
The modern, permanent ICC suffers a further, significant and probably irremediable defect in the selection of conflicts to investigate, that may be seen as distinguishing it as a court from any national court.
The treaty-based permanent court has been ratified by only 121 of the approximately 200 countries of the world. The USA, Russia and China in particular are not members. The court is not good enough for their citizens, it would appear. Yet they are happy to send citizens of other non ratifying countries like Sudan or Libya to the court for trial through a Security Council Resolution. Interestingly, four – neither two nor three – ‘tiers’ of international criminal justice are created: ratifying countries like the UK; Non-ratifying countries who are members of the ‘permanent Five and who will never face the court; non ratifying members like Sudan or Libya who may face the court if referred there by the Security Council; and Israel who, although nominally like Sudan, has a patron on the Security Council that means it will never be referred to the court.
Discrimination that applies the rule of law selectively saying ‘the law is for you not me’ may well be understood and practised in both Russia and China; but for the USA or for the rest of the so-called ‘West’ it must be odd to have anything to do with, or to show any respect for, a legal system that applies to this group of people but not to that group.
And will the USA, China and Russia ever sign up? Probably not. Will the court survive without them? For the time being countries may be under the financial control of one or other of these ‘super-powers’ and obliged to allow their citizens to be forced to trial by the very club these super-powers disdain. But things change and once any country says it will withdraw from such a selective court then the seeds of self destruction in the court may germinate. How serious could this be?
Selection or non-selection of a conflict for investigation seems often to be a highly political act. Should this worry you? Returning to Lilliput ask this question: what confidence you would feel if, in the UK, you knew that rioting in London in 2011 would be investigated but rioting in Birmingham the year before (had there been any) would not be investigated; or if crimes in London were, but crimes in Manchester, were not ever to be investigated?
SELECTION OF DEFENDANTS ONCE CONFLICTS HAVE BEEN IDENTIFIED
You may say – ‘well political choice of which conflicts to investigate is inevitable; the world cannot try them all’. True. So consider next the selections actually made of possible defendants once a particular conflict has been selected?
And this time to start with the analogy, what would you say if the riots of Peckam were to be investigated but only where crimes were suspected of having been committed by members of the tribe of Capulets but never if suspected of having been committed by members of the tribe of Montagues? How confident in your society would that make you feel, especially when the Montagues start marching up and down your street in paramilitary outfits? Consider the selection of possible defendants in some of the conflicts selected for some form of investigation.
During and after the WWI there was an appetite to try leaders for war crimes. Concentrating on the Germans here from the Treaty of Versailles is what was in mind for some:
The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.
A special tribunal will be constituted to try the accused… guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality.
The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex- Emperor in order that he may be put on trial.
The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law.
Not a word about bad things done by the Allied and Associated Powers.
Kaiser Wilhelm been granted sanctuary in Holland and Queen Wilhelmina of Holland refused to extradite him. US President Wilson rejected extradition, arguing that punishing Wilhelm for waging war would destabilize international order and lose the peace.
Many of the problems confronted at international trials of war crimes were touched on then. The responsibility for crimes in war of a political leader; the sanctity of sanctuary once granted; the political risks associated with criminal trials that might outweigh the advantages of an amnesty or of a criminal trial.
Yet how interesting might have been a trial of the Kaiser who early in the war in a letter to Austrian Kaiser Franz Joseph wrote the following that was revealing of his state of mind:
"My soul is torn, but everything must be put to fire and sword; men, women and children and old men must be slaughtered and not a tree or house be left standing. With these methods of terrorism, which are alone capable of affecting a people as degenerate as the French, the war will be over in two months, whereas if I admit considerations of humanity it will be prolonged for years. In spite of my repugnance I have therefore been obliged to choose the former system."
Mental state of some kind, mens rea, in lawyer’s Latin, has to be established for any and every criminal offence. Had the Kaiser stood by this justification would this articulated mental state have amounted to a defence? If not how would judicial condemnation of the Kaiser have looked to President Truman when he authorised the use of atomic bombs on Japan or to Churchill when he approved the Dresden bombings? Each might have had to rely on the same defence?
The trials were held before the German Supreme Court inLeipzig from 23 May to 16 July 1921.
Sergeant Karl Heynen charged with mistreating British prisoners of war. He was sentenced to brief prison term of several months. Captain Emil Muller, charged with mistreating prisoners of war. He was sentenced to six months in prison. Private Robert Neumann, charged with mistreating prisoners of war. He was sentenced to six months in prison. Lieutenant-Captain Karl Neumann, charged with submarine warfare. He was found not guilty. First-Lieutenants Ludwig Dithmar and John Boldt, charged with war crimes on the high seas. They were two officers of the submarine SM U-86 that had sunk the hospital ship Llandovery Castle and then attacked survivors in lifeboats. They were sentenced each to four years in prison. Their captain Helmut Brümmer-Patzig had left Germany and the court's jurisdiction. Max Ramdohr, charged with crimes against the civilian population of Belgium. He was found not guilty. Lieutenant-General Karl Stenger and Major Benno Crusius, charged with mistreating French prisoners of war. Stenger was found not guilty, while Crusius was sentenced to two years in prison. First-Lieutenant Adolph Laule, charged with crimes against the French population. He was found not guilty. Lieutenant-General Hans von Schack and Major-General Benno Kruska, charged with mistreating prisoners of war. Both were found not guilty.
There was no tribunal that explored conduct of the war generally. I have found no record of allied soldiers being tried for the equivalent of war crimes. Mistreatment of WWI German prisoners of war has been written about recently, as if a novelty.
Tribunals established after the WWII in Germany and Japan – often enough described as examples of ‘Victor’s Justice’ – reflected or perhaps mimicked trials in national systems to the extent they could. But reflecting the intent manifest in WWI they only ever tried one side – the Germans and the Japanese. And the trials were very different from national trials.
First, they only survived for a time and only ever tried for criminality a selected few of those who might have been involved in crimes.
Second, there is a considerable amount of material – nearly all untested by any court – of war crimes committed by all allied forces: rapes; executions, torture, starvation. There was no tribunal set up to investigate such crimes and although there were a few courts martial possible offences were generally swept under the nearest convenient carpet. For events that could not be covered up and that would cry out today for judicial consideration – Dresden, Hiroshima – there was no process of judicial assessment of any kind.
Will we or later generations have uncomfortable discoveries of un-prosecuted horrors to integrate into our heroic history of 20th Century conflict just as descendants of those who were colonial officials in Kenya may have now to accept that their forebears committed atrocities in the name, or interest, of their mother country against the Mau Mau?
In the absence of judicial appraisal by the victors of their own conduct Japanese courts did eventually dare to consider the atomic bombings. In 1963 in Ryuichi Shimoda et al. v. The State "the attacks upon Hiroshima and Nagasaki caused such severe and indiscriminate suffering that they did violate the most basic legal principles governing the conduct of war."
In 2007 the International Peoples' Tribunal found ‘that the nature of damage caused by the atomic bombs could be described as indiscriminate extermination of all life forms or inflicting unnecessary pain to the survivors’ and that ... use of nuclear weapons in Hiroshima and Nagasaki was illegal in the light of the principles and rules of International Humanitarian Law applicable in armed conflicts, since the bombing of both cities, made civilians the object of attack, using nuclear weapons that were incapable of distinguishing between civilians and military targets and consequently, caused unnecessary suffering to the civilian survivors".
The Allies got away with little formal examination of any criminal responsibility and were never selected as defendants to be tried.
INVESTIGATING AND TRYING ALL SIDES OR AT LEAST TRYING ONE SIDE PROPERLY
Modern international criminal courts could not so easily fall into the trap of overtly prosecuting only one side of a conflict. Their mandates typically allow for trial of all sides. To some extent that did happen in the ICTY, although not without difficulty as we will see.
In Rwanda attempts to try the victorious Tutsis, then in government, sought by Prosecutor del Ponte were successfully blocked by the government and not pursued by her successor.
Del Ponte told the UN Security Council that the Rwandan government was manufacturing reasons to block cooperation with the court, after her announcement that she would investigate the country's present leaders for alleged war crimes.
The Government of Rwanda submitted to the UN that “The Government of Rwanda does not believe that abuses committed by the RPA should be equated to the crimes committed by the perpetrators of genocide. The Prosecutor has confessed to the Government of Rwanda that she has to pursue indictments against the RPA because she is under pressure from some states to do so. It would appear that the proposed indictments of the RP A are merely intended to appease advocates of a so called "ethnically balanced justice" and proponents of revisionism.”
Del Ponte responded to political pressure from the UN and the EU and then said “The Office of the Prosecutor will not seek an indictment or otherwise bring a case before the tribunal unless it is determined that the Rwandan government’s investigation or prosecution was not genuine.”
On 7 March 2003 the Special Court for Sierra Leone issued an indictment against Charles Taylor, serving President of Liberia.
Taylor filed a motion to quash his indictment arguing that he enjoyed absolute immunity from prosecution as a serving head of state and that exceptions to diplomatic immunity can only derive from other rules of international law unavailable to the SCSL because it was effectively a national court
On 11 August 2003 Taylor Resigned as president under US pressure and went into exile in Nigeria pursuant to an arrangement brokered by the African Union (AU), the UN and the USA in which Nigeria offered Taylor exile.
The USA, the European Parliament, Western NGOs, Nigerian civil society and NGOs, bar associations and academics later put pressure on Nigeria to hand Taylor over to the SCSL.
In order to overcome head of state immunity the SCSL Appeals Chamber (AC) in May 2004 decided that though the court was a hybrid court "the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.". So Taylor could be handed over.
The decision has been heavily criticised not least because fundamental interests of States are at stake – and insufficiently addressed - in situations where the Security Council purports to abrogate the immunity of a serving Head of State simply by the creation of a tribunal. 
Another example, now rich with irony, is – was - Colonel Gaddafi of Libya. The first Chief Prosecutor of the Special Court for Sierra Leone, David Crane, wanted to indict Gaddafi for his direct participation in the conflicts in Sierra Leone and Liberia. Ghaddafi was alleged to be one of masterminds of the war in Sierra Leone, and a key financier. The USA, however, was not interested in indicting Gaddafi because it was engaging with him over the release of chemical weapons. French Foreign Minister Dominique de Villepin encouraged French business in Libya. Tony Blair met with Gadaffi in Tripoli and signed an agreement for Shell to have rights to oil exploration on the Libyan coast. The US re-established diplomatic relations with Libya, and Gaddafi was never indicted. 
Favoured at one international court acting under political pressure to meet Western interests, was he later ‘disfavoured’ last year by another when the ICC indicted him at unprecedented speed as if to assist in recognition of the Transitional Council by which Gaddafi’s regime was finally changed?
The Extraordinary Chambers in the Courts of Cambodia (ECCC) was established by the Cambodian Government and the UN to try senior figures in the Khmer Rouge. Nominally independent, the court has, at crucial times, been subjected to improper influence by Hun Sen, Cambodia's prime minister, who exerted great pressure, at times, to stop the investigation or prosecution of five senior figures who met the Supreme Court Chamber’s jurisdictional criteria for investigation and trial.
Almost all Cambodian prosecutors and judges are active members of the Cambodian People's Party, Hun Sen’s own party. Conflicts over loyalty and independence are commonplace amongst Cambodian staff. Hun Sen publicly warned UN officials about their actions advising them to "pack their bags and leave the country" if they insisted on pursuing certain cases. Five other cases were shut down without any examination of the evidence, without suspects being notified that they were under investigation, without witnesses being interviewed or crime sites being examined.
A senior international UNofficial was instrumental in these decisions. Hun Sen’s motive for shutting down the court on his terms is to stop it digging up evidence that could implicate serving members of the ruling elite. One of whom resigned specifically over the pressure imposed on him by the Cambodian government.
International co-prosecutor Andrew Cayley made public the glaring deficiencies in the investigation of the dropped cases being prepared to fight for the relatives of the 1.7 million victims of the Khmer Rouge. He tried to get the judges to investigate properly cases in accordance with the express mandate and jurisdiction of the court. The investigating judges threatened him with contempt on spurious grounds. He was left by the UN without support to sustain the rule of law; not a unique experience.
ICC cases, nominally instigated by governments behaving properly in an environment where the ICC can investigate all sides face another difficulty National criminal courts rarely, if ever, get involved in acts that are, or may be, criminal as they are happening. Recent ad hoc war crime trials – Rwanda, Cambodia, most trials arising from the Yugoslav conflicts for example – are trials after-the-event and deal with events and states of mind of the accused that crystalised before the trial started.
ICC prosecutions in Africa on the other hand, are often started while conflicts are continuing and thus have been subject to the recurring suggestion [to which I have already referred] that African countries engage the ICC to attack their opponents, to make the court itself an instrument of war.
In summary the selection of those to be prosecuted within any conflict chosen for investigation may well be as political as was the choice for inquiry of the conflict itself.
In any democratic country decision making about international treaties that generate international law can theoretically be traced through various government bodies back to the elector citizen. In reality elections are rarely, if ever, fought on the detail of some international instrument. In the result the international criminal law with which we are concerned has developed piecemeal and at a distance from the voting citizen.
Racing by the instructions for conduct of war to be found in Deuteronomy Chapter 30 verse 13, the Lieber Code for the American Civil War and the Hague Conventions of 1899 and 1907, we may eventually arrive at the drafting of the statute for trials at Nuremberg, that did much to define, and led to further definition of, the modern law. But may it then have been – as Professor William Schabas argues – done in a calculated, political way?
To understand his argument – and in any event - it is necessary first to remind ourselves that crimes are not in any sense absolute, whatever the modern informed citizen may seem to think about, for example, the crime of genocide. Crimes are selections by category of human behaviour and the same name of crime is often differently defined in one nation from how it is defined in another. Murder in the UK may be different in definition – and thus in the category of acts identified as murder – from murder as defined in the USA. And crimes once thought to be clearly defined can easily enough be divided further, as some crimes (although not murder) have been in the UK according to whether they are or are not ‘racially aggravated’.
On analysis genocide is now a sub-set of crimes against humanity, as more recently defined. The Phrase ‘Crimes against Humanity’ had been in use in ordinary language for over two hundred years. One attributed early use is toFrench revolutionary Maximilien Robespierre, who described Louis XVI as a criminel envers l'humanité (criminal against humanity). In 1860 the electoral platform, on which Abraham Lincoln stood for President, included the following statement: "... We brand the recent re-opening of the African slave trade, under the cover of our national flag, aided by perversions of judicial power, as a crime against humanity".
The term’s meaning started its shrinking to usefulness as a legal term in the 1907 Hague Convention preamble, which based its codification of the customary law of armed conflict on existing State practices that derived from values and principles deemed to constitute the “laws of humanity,”
Its first formal appearance as a law was in the declaration concerning the Armenian massacres made by the governments of France, Great Britain, and Russia on May 24, 1915,
"[i]n the presence of these new crimesof Turkey against humanity and civilization, the allied Governments publicly inform the Sublime Porte [government of the Ottoman Empire] that they will hold personally responsible for the said crimes all members of the Ottoman Government…"
Interestingly - and connected to what follows - the United States did not join in this declaration and U.S. Secretary of State Robert Lansing referred to what he called the "more or less justifiable" right of the Turkish government to deport the Armenians to the extent that they lived "within the zone of military operations."
In the event the Treaty of Sevres that might have created the fist tribunal to try such crimes if committed by the Ottoman Government was never ratified and the Treaty of Lausanne granted amnesties where there might have been trials.
The post WWII Nuremberg trials, however, did include allegations of crimes against humanity.
In the London Conference of 1945 that preceded the Nuremberg trials where the crime was defined US prosecutor Justice Jackson, echoing WWI Secretary of State Lansing, made it quite clear that it was no part of the USA’s functions to interfere with the internal affairs of another country, even if they were exterminating their citizens.
But the Nazis had to be tried for what they had in the course of the war not just to the populations of other countries but also to their own people.
Thus, suggests Schabas, was ‘crimes against humanity’ were defined to cover what the Nazis did to the Jews but justiciable by the tribunal only if:
(c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Jackson had explained - candidly - that this reflected how a broader definition that could allow the Allies to try the Nazis for acts not thus linked to war could expose the US to the same pursuit for things it had done in the past. No doubt the UK agreed with the outcome and the reasoning.
The Tribunal’s judgment in 1946 followed the Statute and Raphael Lempkin, the man who had coined the word ‘genocide’ in 1943 and brought it into some general usage by the time of the Nuremberg trials hastened to New York, explains Schabas, to ensure that, for the future, peacetime acts such as those committed by the Nazis against the Jews, would be covered. That required identification of the separate crime of genocide.
But for this course of events the activities of the Nazis – as of the Turks in Armenian, the Hutus in Rwanda, The Khmer Rouge in Cambodia, the Serbs in Bosnia - would not have been found by court verdict or retroactive opinion to have committed genocide but rather to have committed terrible acts that might qualify in ordinary parlance as genocide but in law as a category of crimes against humanity. By refinements of definition of this crime since, they now could be.
The genocide convention was passed in 1948 and has now been ratified by some 142 states. The definition of genocide – significantly different from Raphael Lemkin’s first definition in 1943 – has been followed closely or precisely in various national and international statutes since, including in our own UK law that outlaws the crime.
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group
Curiously, it may seem, many of those closely involved with international courts do not see the power to charge the crime of genocide always to be a good things.
I recall a colleague at the ICTY writing a book on genocide when we both worked there titled ‘Crime of Crimes’. And that, in a way, is where the potential for difficulty lies. People – victims as much as some lawyers – live in an age of superlatives and celebrity. Victims may want to have their suffering described as the worst of all possible; lawyers may want to be seen working on a case that is the worst of all possible. Celebrities may want to stick their names to eye-catching words when they support particular victims of a particular conflict. ‘Genocide’ is such a word. And, of course, once any trial has attempted to deal with a genocide allegation – as with the allegations made about Srebrenica in the ICTY and in the world’s senior Civil court, the International Court of Justice (ICJ) also in The Hague, it is essential that the correct legal record is left.
However mass killings can be as bad whether cast as crimes against humanity, war crimes or genocide. The only distinguishing feature of genocide is the intention that has to be established, namely the intentto destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
an intention that might seem less sane than the state of mind of someone who commits a war crime by killing all prisoners in his control – as by Henry V at Agincourt – for the more practical reason of not allowing them to rise again as combatants. Which motivating force is the more criminal?
There has, of course, been much activity since Nuremberg developing the law. Much of it is achieved by governments in partnership with bodies like the International Committee of the Red Cross (ICRC) or various non-governmental organisations (NGO’s). When they gather – at reviews of the Rome Statute of the ICC, for example – they behave as if they, not the citizen through a parliament, have the right to determine what the law should be. And, for example, although there is not time today to explore this, it may be they who decide, or seek to decide, that justice must always trump peace, that transfer to these courts wherever possible must always trump an amnesty, whatever the affected citizen and victim of tyranny might himself prefer.
CONDUCT OF TRIALS ONCE A CONFLICT HAS BEEN CHOSEN FOR ATTENTION AND THE GROUPS TO BE INVESTIGATED HAVE BEEN IDENTIFIED.
These tribunals are either run by large organisations like the UN, or the States parties of the ICC or by ad hoc combinations of local and national lawyers. It is hardly surprising if the latter arrangements generate inter-personnel difficulties. As to the UN and the ICC people are sometimes surprised to hear the insider’s view that these large organisations are much like other large organisations: they do not contain a staff of highly committed idealists and they frequently ‘default’ to mediocrity, at best. They do not necessarily ever attract the best of the world’s lawyers and the judges they recruit have a varied reputation.
In most of the courts the ‘international’ judges have to be nominated by a nation and elected in New York. Some judges are ex-diplomats or academics with no previous judicial experience and there are those nominated to whom favours were owed by governments. Although the UK judges have generally been very well thought of, only in Sir Adrian Fulford at the ICC and Lord Iain Bonomy at the ICTY did the UK nominate candidates of the level of High Court judges because there was limited appetite from the senior or very senior judiciary to take on this work. Understandable in some ways – international judges usually work as members of a panel of judges lacking complete control of the court in which they sit. And, I fear, it is not hard to find in UK lawyers a desire to stay at home even if an inquiry into a war would arguably be more important and certainly more interesting than an inquiry into a domestic murder, a whiplash neck injury or the passage of money from oligarch to oligarch for some reason good or bad.
The difficulty over international judges – who are very well paid with generous pensions and conditions of service – is to be contrasted with the way modern national courts, such as our own, are served by appointment commissions of one type or another that seek to recruit the best judges available without regard to favours owed or geographical ‘spread’, a requirement of UN and ICC appointments.
Review of how the judges at these courts work may well – to the possible surprise of outsiders – show that they like the ordinary UN staff members are not idealists seeking to put their life’s skills to great work but fortunate men and women who are able to integrate the highly respected (ambassador rank) of international judge with whatever other academic or outside life they enjoy. At the ICTY I wondered how different it might have been for our judges to uproot themselves from the comfortable life in The Hague and fly south. There, in suits not robes, they might have taken evidence day after day in local public halls, perhaps showing willingness to work long hours in circumstances where local residents who had experienced the horrors of war could walk in to see justice being done. It was never going to happen for a thousand reasons. And there would have been no judicial appetite for it. Accessibility to the planes that ferried the judges to the centres of their real lives would have been too remote; and long days in dusty halls insufficiently agreeable. Such an exercise might, I thought, have given considerable impetus to whatever effect the trial could have on reconciliation in the region - but here I dream.
The lawyers in these courts are in a different position. Their privileges are limited and they have to fit into normal management systems even if, like me, they come from independent practice where it is comparatively easy to be independent and respectful of ethical duties owed to a court or to a defendant on trial. Employed lawyers are in a far more difficult position – often thousands of miles from home with wives and children in school; for them the exercise of independent judgment in the face of being instructed by a superior to do something on the edge of, or beyond, propriety is hard to resist.
A few examples of how pressure can operate on lawyers and judges:
At the ICTR the accused Barayagwiza was held in provisional detention for 3 years; 11 months of this was illegal detention and Barayagwiza was denied rights under the Tribunal statute; he was not heard on his writ of habeus corpus and even after being finally charged stayed in custody for another 3 months before his initial court appearance.
The ICTR Appeals Chamber found an egregious breach to the accused’s due process rights,inter alia because of the failure to hear Barayagwiza's writ of habeas corpus and the 18 month period of unlawful detention. The Appeals Chamber decided that “the Prosecutor’s failure to prosecute this case was tantamount to negligence” and concluded that the only remedy available for such prosecutorial inaction and the resultant denial of his rights was to release the Appellant and dismiss the charges against him.
Following this Decision the Government of Rwanda threatened to suspend its necessary cooperation with the tribunal – that operated in neighbouring Tanzania – and officially condemned the decision at the United Nations The European Parliament joined in with a resolution which deplored the decision of the International Court to release Mr Barayagwiza.
The Appeals Chamber, who like all members of the court were dependent for their livelihoods on continued cooperation of the Rwandan government, reviewed their decision and on slender additional material found that the decision to release Barayagwiza should be reversed with the Accused being entitled "to a remedy to be fixed at the time of the judgment at first instance” (para. 74) due to the violations suffered by the delays.
Was this the rule of law in action or something a little more practical?
Ramush Haradinaj was Prime Minister of the entity of Kosovo formerly within Serbia that had been accorded independence of a sort after the armed conflict between the Kosovo Liberation Army (KLA) and Serbia. That conflict led to NATO bombing Serbia which lost control of Kosovo.
Two or three teams of lawyers in the Office of the Prosecutor at the ICTY refused to indict Haradinaj because there was insufficient evidence. The office’s most senior lawyers warned the Prosecutor of the day not to indict in such sensitive circumstances without proper analysis and peer review. The Prosecutor was determined to prosecute Haradinaj, arguably for political reasons because Serbia was complaining about an insufficient number of Kosovars being pursued.
Lawyers in the prosecutor’s office who never appeared in court to act as advocates were instructed to indict Haradinaj – and did as they were told. He was tried to acquittal and released. It was said that witness intimidation was the reason for his acquittal and he was returned to custody for a partial retrial, not just on the basis of the evidence that the Appeals Chamber held the Prosecution should have been given further time to call but on all evidence from the original trial – arguably in defiance of even the most modern standards of permitted ‘double’ jeopardy that do allow someone to be prosecuted a second time in extreme circumstances. He has spent nearly 4 years in custody and the Trial Chamber’s result is awaited. Commentators say there is no evidence against him and he should be acquitted – again. It will be interesting to see if that happens or if, to cover embarrassment, the Trial Chamber convicts of something slight to justify the otherwise irrecoverable 4 years of his life in custody that will be found, as ‘time served’, to be the appropriate period of custody, arguably an appalling miscarriage of justice should it happen – but in political courts many things are possible. One thing is clear, prosecuting this successful politician, always a tempting ‘scalp’ for Prosecutors who are allowed to indulge in personal publicity, was contrary to normal standards and arguably deprived a fledgling state of the leader under whom it may have flourished in what had been a difficult period.
My own experience at the ICTY was revealing – at least to me. Three examples:
The very best collection of documents the obtained was a stenographically recorded series of meetings lasting 9 years attended by Miloševićand the presidents of Montenegro and the rump Federal Republic. Serbia made a deal with the Prosecutor to have the best – or rather the worst – parts blacked out from public view. Lawyers and judges could see the totality. Citizens could not. Extraordinarily the ICJ trying the case brought by Bosnia against Serbia for genocide worked on the basis of the blacked-out documents and never saw what lay beneath. The deal served Serbia’s purposes. There was no conceivable reason that I could see why they should have been blacked out and the deal was made against my written objection.
Within those records there is this passage, now finally public although too late to generate much interest now in Bosnia, sadly.
In the session of 14 August 1995, the first reference to the fall of Srebrenica and Žepa was made. Milošević referred to his communication with Mladić saying:
“Momo remembers well my conversation with Mladić on the occasion of attack on Žepa and Srebrenica. On that occasion I said: “Ratko, you are now measuring the military price of that success. The military price is six persons killed, 20 wounded, one vehicle destroyed, etc. It is inexpensive. However, the political price could be million times higher because there might be a concern for the interests of 12 million people!”
There was plenty of intelligence on the internet and elsewhere to the effect that intercepts of these conversations between Miloševic and Mladić existed as was confirmed in the official NIOD – Dutch war Documentation Centre report on Srebrenica - that said
‘The existence of these intercepts was confirmed by a western diplomat. During a meeting at the White House between Gore and Bildt, the Swedish negotiator tried to convince the US vice-president that he should not form an excessively black-and-white image of President Milosevic. Gore responded to these statements by reading from US intercepts,which showed that Milosevic had consulted with Mladic about the attack on Srebrenica. Gore then reportedly said to Bildt: ‘Forget about this. Milosevic is absolutely not the friend of the West.’
I sought by every means to get the intercepts and had a target entity waiting to face the court to explain whether, as suspected, it had them to hand over. A different entity entered the office and instructed the Prosecutor to withdraw the application. She complied. Whose interests were served? Serbia’s? Maybe. The interests of any other entity that would have preferred less to be known about its knowledge of events at the time? More than maybe. I would have had to deal with Miloševic saying the West knew what was about to happen - had he not died. Compliant with the rule of law I would have had to reveal how the Office of the Prosecutor yielded to this pressure. I was not at all sure how I was going to do so.
The Haradinaj case – not my case – featured in the Miloševic defence case in a surprising way. A Miloševic defence witness – a general – gave evidence that would have showed more or less all of the prosecution evidence about Kosovo was wrong. Far from ethnic cleansing and killing, his troops had been doing the equivalent of visiting the sick and taking candies to children in their tanks. We had stacks of material for cross examination including a racist anti-Kosovar thesis on which the authorities had granted the general a PhD! Just before his questioning by Miloševic ended I was told I might not be cross examining him at all. Why? Because he was needed for the Haradanaj case. Indeed the Prosecutor, without telling me, had written to the witness’s service chiefs in Belgrade to assist him with getting enhanced pension for his service. After a short and vigorous exchange – in the course of which the Prosecutor said she would drop the entire Kosovo case if necessary – it was understood that not cross examining was not a possibility. Was this another example of the rule of law in action?
Is the trial of war by law a process the citizen can trust? Or is it, in reality, a process whereby selections of conflicts and individuals within a conflict to pursue are political or politicised decisions? Is the very law by which those selected for trial will be tried itself politicised in a way that is out of reach of the citizens affected?
Suppose the very worst of interpretations can be put on the developments of the last 20 years: do we face return to a reality explained in Shakespeare’s Henry VI when Northumberland says to York immediately before York is butchered,
“It is war’s prize to take all vantages and 10:1 is no impeach of valour”
(Shakespeare’s Henry VI Part III Act I Scene 4).
Will resolution of armed conflicts, being in the hands of the victor, give everything to the victor, both as to spoils and as to reputation?
I think not and although providing no answers to the questions posed suggest the following to be immensely positive outcomes of war crimes tribunals.
First, all war crimes trials leave an immense record of evidence that would never have come to light or never have come to light so soon. And – something for which the adversarial system can be praised – the evidence is usually tested in cross examination on behalf of, or even in person by, the accused against whom it is aimed in court. Future generations who may wish to abuse history for cynical political reasons may be able to complain about verdicts – which will perhaps count for far less than some think when they are rendered – but will have to be able to surmount a wall of more-or less unbreakable evidence.
Second, individual nations have been compelled by the existence of the ICC statute to add to their own statute books laws that will cover more crimes of war, just as the UK has done.
Third, States involved in conflict – such as Rwanda, Serbia, Bosnia and Croatia - have found themselves conducting domestic trials for war crimes that are beyond the finite capacity of the international courts to try. This – and the present expectation that it should now happen - adds in a practical way to the general raised expectation of the world citizen of ‘sending people to The Hague’.
And if you think this may be encouraging it is only, I believe, the start.
African countries are beginning to resist the reach of the ICC. Is this necessarily a bad thing?
Recently the AU took steps to establish a criminal component of its African Court of Justice and Human Rights. This may be aimed at keeping Africans presently under ICC allegations within Africa, but note the intended scope of its statute which would include, unprecedented, the crime of unconstitutional change of Government and establish Mercenarism as a crime along with corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources, and the crime of aggression. Genocide would be Extended beyond the ICC law to cover Acts of rape that are intended to change the identity of a particular group. The prohibited age for conscription of children into armed forces would be raised to 18.
Regional, locally ‘universal’ courts – all Africa; all South America; all the Far East - could easily mark a more realistic way forward than the non-universal ICC that not too subtly attempts to impose western standards in a political way on countries not strong enough to resist. They can enlarge the present understanding of international criminal law as the draft African statute may do. And an African country reluctant to surrender one of its citizens to The Hague for trial may be far less unwilling to have the issue dealt with in Addis Ababa.
And even if this optimism is justified it is by no means all.
The work of the courts to date has added to the citizen’s understanding of how to react to conflict. Research shows that it is the existence of courts that has made citizens less cowed by grand institutions and governments and more aware of their ability to act and react within political systems, turning to the law when they need it – the ‘Mothers of Srebrenica’ who test the conduct of the ICTY are a prime example. But the context in which all this is happening – the 20 years in which these courts have emerged - is an age of previously unimaginable scientific advance - in computers, the internet, social networks, Skype - and this may turn out to be significant.
I have never been the victim of conflict violence and thus cannot know how such victims feel about the need for retribution through convictions and sentencing of offenders. And I do not diminish their potential importance. However it seems clear that after conflicts a principal concern of the affected citizen is to know what happened and to be confident that the best possible narrative of events is left behind. A belief that this can, or should, be done through any form of criminal trial process was held by Hartley Shawcross at Nuremberg and dismissed as outside the law’s scope by Hannah Arendt in her seminal book on Eichmann in Jerusalem. But they never knew the World Wide Web. Neither did Bertrand Russell when he established his peoples’ tribunal for Vietnam.
These days for the purposes of leaving a record of events the citizen no longer has to show respect to great institutions if they fail to serve him well. By way of example, an international group of Diaspora Iranians recently created a Lord Russell style tribunal to deal with massacres of Iranians during the 1980s in Iran’s prisons, when over 20,000 political prisoners, men and women, and numerous under-aged detainees were sentenced to death by execution. The two stage process intends not just to leave a record but to hold the Iranian Islamic Regime accountable for its crimes against humanity.
Internationally respected figures agreed to serve unpaid as commissioners and judges of a two part commission and trial process. At modest cost – and with the benefit of Skype, unknown to Shawcross, Arendt or Russell, 75 witnesses from around the world were heard in the first week in London and the Commission’s report of this evidence, together with other critical witnesses, will be heard by highly reputable, pro bono judges in The Hague in October.
To go back to where I started this is a conflict that would never be selected for international attention despite its gravity. The informal tribunal – that may be matched by others and by other internet and computer assisted processes yet to be imagined – shows that the world citizen can hope courts will serve him well but can easily find the means to do much of the job himself if they don’t. Courts – in particular the International Criminal Court – are more to be seen as part of larger projects and not so much as ends in themselves. This may encourage them to reality, to perform with less attention to political interest, to recognise that courts that are genuinely respected are those that simply perform to a high quality without seeking to engage in politics along the way. It is these courts that have stimulated expectations for the future and they can now benefit from the criticisms of them that exposure has created. Whether they come to be seen as experiments or works in progress may matter less than the title of this lecture suggests. International courts and legal systems protesting that they will end impunity have to acknowledge that making crimes of murder or rape did not stop killing or raping. It may have reduced the times these crimes happened but deterrence – a good ambition – is probably the product of politicians, social scientists, and many other parts of our open societies working hand in hand, sometimes with lawyers and building on knowledge from wherever generated. These courts have added to knowledge immeasurably and may, properly deployed and when functioning at their best, increase the prospects of a reduction of future conflict.
The immense honour of being a Gresham Professor is enhanced by succeeding Baroness Ruth Deech who has devoted her life to many difficult facets of our modern society, guided by law and inspired by the confidence she has felt in it and in the lawyers who deliver it.
It is a great privilege as a Gresham Professor to be able to give public lectures. In this first one I may have dreamed a little. If so then it is only because Sir Thomas Gresham – whether he dreamt or not – was a man of action and a businessman of great acumen and success. Having the freedom to dreamand speak can depend on the ability of more practical men and women to make it possible. For the freedom given to me I salute our benefactor.
Due thanks to Haydee Dijkstal, for her assistance in research for this lecture.