War Crimes
Last week NATO declared "war
on war criminals" in the former Yugoslavia. In the process of arresting two
Serb officials indicted by a U.N.-administered war-crimes tribunal on the
charge of operating concentration camps, the NATO peacekeepers killed one in a
gun battle. Also charged with war crimes are former Bosnian Serb President
Radovan Karadzic and Gen. Ratko Mladic. A similar ad hoc U.N. tribunal is
trying war criminals in Rwanda. And there is talk that Canada will soon try Pol
Pot for orchestrating the murder of 2 million Cambodians in the 1970s. What is
a war crime? Where does the United Nations derive its authority to arrest and
try accused war criminals from? Why has the United States resisted the
establishment of a permanent war-crimes tribunal?
The
concept of a war crime dates at least as far back as biblical times. In the
Book of Joshua, soldiers were executed for transgressing certain implicit
rules of warfare , like looting conquered cities. St. Augustine
(354-430) was among the first to study the ethics of war, hoping to reconcile
the Roman Empire's militarism with the ideal of "loving thy neighbor." Killing
could be morally justified, as long as it was Romans attacking barbarians. But,
he added, war must be only a last resort, efforts must be made to avoid hurting
noncombatants, and the reasons for fighting must be "just." Ideas about the
ethics of warfare have also been absorbed into secular doctrines of warfare,
like the medieval code of chivalry. Similarly, in Japan the unwritten martial
code, Bushido, required warriors to treat their enemies with honor, even
providing prisoners of war with medical care. Modern military
technologies--trench warfare, machine guns, and chemical weapons--shattered old
ideas about the "honor" of battle. During prolonged mid-19 th -century
conflagrations like the American Civil War and the Crimean War, battlefield
casualties were unprecedentedly high and civilian casualties were increasingly
considered inevitable. In response to the new brutality, some declared all war
unjust. Pacifism , once adhered to by only a few small Christian sects,
became popular among clergy and intellectuals such as the philosopher Bertrand
Russell, who was sent to prison for his opposition to World War I.
Following World War I 's slaughter, European leaders
sought to "end all war," or at least make warfare more "humane," through new
international laws and organizations. The British and French armies established
ad hoc military courts to try Kaiser Wilhelm II and more than 900 other
top German officials for "unjustly" instigating the war. The allies never
arrested Wilhelm and convicted only 13 German soldiers, giving them light
sentences. The newly created League of Nations debated, but failed to
pass, treaties prohibiting the torture of prisoners and attacks on civilians.
Only after World War II did the United Nations oversee the creation of the
Geneva Conventions (1949) and the Genocide Convention
(1948)--treaties ratified by nearly every country in the world. The former
outlawed all "intentional" attacks on civilian populations and created new
rules to protect prisoners of war. The latter declared it a crime to kill
members of a racial, religious, or national group of people when the intention
was to eliminate the group.
The
conventions are vague on enforcement. If a country is unable to mete out
justice, it is expected to extradite suspects to countries that can. Stringent
laws in Canada and Germany punish foreigners who violate the conventions. The
United States has no such laws, but its military courts punish servicemen who
violate the Geneva Conventions; Lt. William L. Calley was convicted of war
crimes for ordering the 1968 My Lai massacre of unarmed civilians during
the Vietnam War.
Since World War II, many have clamored for a
permanent international war-crimes tribunal to enforce the conventions.
Prior to the Clinton administration, the United States consistently opposed the
idea because it worried that the country's leaders would be tried for the
bombing of Hiroshima and its 1986 attacks on civilian targets in Tripoli,
Libya.
The model for an
international war-crimes tribunal is the Nuremberg trials , established
by Allied victors in Germany to try the 24 highest-ranking Nazis . Their
crimes included the "deliberate instigation of aggressive wars," the
extermination of racial and religious groups, and the murder and mistreatment
of prisoners of war. Three were acquitted, two committed suicide before the
trials began, 12 were hanged, and the rest received prison terms ranging from
ten years to life. In separate proceedings, 185 other Germans were put on
trial, including the heads of concentration camps, organizers of medical
experiments on concentration camp prisoners, and industrialists who used
prisoners for slave labor. (Ordinary citizens complicit in war crimes were not
tried, to avoid stigmatizing the country permanently.) Since Nuremberg, the
most prominent trials of alleged Nazi war criminals have been held outside
Germany. In 1961 Adolph Eichmann was tried by a special Israeli tribunal
under Israeli laws that prohibit "crimes against humanity." And in 1987, a
French court sentenced Gestapo chief Klaus Barbie to life in prison for
violating similar French laws.
Complaints abound that Nuremberg was a kangaroo court . Sen. Robert Taft
called the trials "victor's justice" that unfairly applied new laws
retroactively. The post-World War II trials in Tokyo , organized by Gen.
Douglas MacArthur, tried 28 Japanese leaders on charges of mistreating Allied
soldiers and instigating unjustified aggression. Many historians also deem
these trials unjust.
Soon after war broke out in the former Yugoslavia in 1991,
the United Nations used a previously obscure section of its charter to convene
the first international war-crimes tribunal since Nuremberg and Tokyo. The
court has indicted 77 people, mostly Serbs accused of participating in the
massacres of Muslims. Only 10 are in custody in the Hague, and only one has
been tried so far: a Bosnian Serb foot soldier who was found guilty of
murdering two Muslims and sentenced to serve 20 years in prison. Meanwhile, the
alleged architects of "ethnic cleansing"--Radovan Karadzic and Ratko
Mladic--are still free.
In 1994,
the U.N. Security Council set up a tribunal in Arusha, Tanzania, to investigate
the mass murders in Rwanda . This tribunal has indicted important figures
thanks to the cooperation of Hutu and Tutsi leaders who have turned in their
own accused tribesmen.
After a band of guerrillas captured
ex-Cambodian dictator Pol Pot one month ago, many Cambodians began demanding
that he be tried for the murder of the millions killed by his regime.
Initially, the United States hoped that Cambodia would use the authority of the
Genocide Convention to extradite Pol Pot to Canada for trial there. But
Canada has been reluctant to involve itself, and the United Nations is
considering creating yet another ad hoc tribunal.
Human-rights groups argue
that the current tribunals, having no police force to back them up, are too
weak to be effective. Right-wing groups say the United Nations has used the
opportunity to extend its power. Never before has a U.N. court been able to
punish the actions of individuals . Both right- and left-wingers worry
that the new U.N. tribunals will reprise the flaws of the Nuremberg and Tokyo
trials, attempting to make political points and failing to adequately protect
the rights of the accused.
