aryeh neier - bringing war criminals to justice, a brief history

8/18/2019 Aryeh Neier - Bringing War Criminals to Justice, A Brief History

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Bringing W ar

Criminals to Justice

A Brief History

1

WOUL

like in this essay to sum up how we got to where we are

now on the question of international justice. As Kenneth Roth

indicates in his introduction, it has essentially been during the

1990s tha t we have tried to hold those responsible for war crimes

actually accountable for their acts. Very little was done before

that, subsequent to the international tribunals at Nuremberg and

Tokyo. There w ere some earlier efforts, however, the most signif

icant of which I believe are one in the mid-1970s and one in the

mid-1980s.

In th e mid-1970s, after seven years of military rule by the

colonels, Greece pu t a nu m be r of those responsible for variotis

atrocities on trial, including two m en who had served as president

of Greece during that period. About a hundred were convicted,

including the two former presidents, for various crimes commit-

ted during the colonels' regime. The n, a decade or so later, in the

mid-1980s, Argentina put on trial a number of the generals and

the admirals responsible for many thousands of disappearances,

torture, and summary executions during the seven years of mili-

tary rule in Argentina.

What happened in Argentina dealt a setback to the effort

internationally to hold those responsible accountable, because

when the effort was made to extend the trials to middle-level offi-

cers,

they rebelled. There were several armed rebellions led by

the mid-level officers, and they were put down by the Argentine



1 08 6 S O C I A L R E S E A R C H

gerous to hold such trials, especially when abuses were committed

by the militar) , beca use the militar\- was cap able of ove rthrow ing

ci\ i l ian governments. Roth referred to the fact that in the south-

em cone of Latin .America, the effort was made to deal with these

issues thr ou gh truth comm issions. In Chile, for exam ple, the deci-

sion was m ad e to avoid trials, to ho n o r an am nest) that th e mili-

tary go ver nm ent s leader. Genera l Augu sto Pinoch et , ha d issued

for himself and for his military cohorts, and instead only to have

a truth commission. There was also a truth commission in

Argentina, but in Chile the commission decided even to avoid

naming any names of the mili tar) officers who had committed

abuse s. You cou ld tell from rea din g th e rep or t issued by the c om-

mission that Pinochet himself

w s

responsible for a large nu m be r

of the abuses, but no one else was identified in the three-volume

document . In another cotmtry neighboring Argent ina, Uruguay,

there was actually a national referendum that decided to uphold

an amnestv rather than risk the possibility of trials that might

cause the military to overthrow a civilian government. So it

looked, for a while, after the Argentine experience, that holding

those who committed great crimes accountable in criminal trials

was doomed.

WTiat changed all that was the war in Bosnia, which began 10

years ago. Bosnia was different, I believe, for thr ee reas ons . First,

of course, the war took place in Europe, fairly close to the center

of Eu rop e, only an ho ur or an h ou r an d a half away by plan e from

a number of the major capitals in Europe. What was going on in

Bosnia had a degree of visibilit) that was not the case when com-

parable atrocities took place in Africa, Asia, or Latin America. A

sec on d factor in m ak ing Bosnia different was tha t m ost of the con-

fiicts subsequent to World War II in which great atrocities took

place w ere in ter na l. T hey w ere civil wars. Bosnia was an inte rna -

t ional armed confl ict , in the sense that three internationally rec-



BRINGING WAR CRIMINALS TO JUST ICE 108 7

conflicts, not in internal armed conflicts. The provisions of the

Geneva Conventions th at dea l with grave breaches, or war crimes,

appear in the sections of the conventions and protocols concern-

ing international armed conflicts. (The law of war has developed

significantly du ring the past decade , and tha t restricted view is no

longer the case.) But in 1992, when the war in Bosnia began, the

fact that this was an international armed conflict made a major

difference when it came to addressing it through a tribunal to

hold accountable those responsible for the crimes carried out.

The third factor that made Bosnia different is that the particu-

lar crimes comm itted there rem inde d us of the crimes comm itted

by the Nazis. And, of course, Nuremberg dealt vsfith the Nazis.

Therefore, the idea of creating an international tribunal pat-

terned on Nuremberg to deal with the crimes committed in

Bosnia seemed app ropria te. Indee d, I can recall at Hum an Rights

Watch issuing a report—the first to acquire any resonance—that

called for the establishment of an interna tional tribunal. Th e rea-

son it created such resonance is that it was issued at the very

moment that news stories started to appear, first reported by Roy

Gutm an in the New York area new spaper

Newsday

on the camps

operated by the Serbs in Bosnia. The camps reminded people of

the Nazis. Therefore the call for an international war crimes tri-

bunal resonated.

Referring to Samantha Power's book,

A Problem from Hell

Ken-

neth Roth points out that establishment of the tribunal was a way

of avoiding military intervention that would have been more

effective in actually stopping the atrocities. That was certainly a

factor. Let me provide one illustration.

After President G eorge H. W. Bush was defeated for reelection

in Novem ber 1992, he

w s

in a sense freed to act on intern ation al

crises that his adm inistration had avoided u p to that po int. In the

electoral cam paign, be was attacked by candidate Bill Clinton for

not attending to domestic affairs. (Recall the slogan of that elec-



1 0 8 8 S O C I A L R E S E A R C H

election pe rio d, a nd th en was defea ted. After his defeat h e was lib-

erated, but there were two major international crises under way at

that moment. One was in Somalia, and the other was in Bosnia.

Apparently, taking ad\ ice th at the U nited States could m ore read-

ily and more easily intervene in Somalia than in Bosnia, President

Bush decided to act in Somalia. But, as a lame duck president, he

could not verv well intervene in two major confiicts at the same

moment. This produced some difficult) for his secretar) of state,

Lawrence Eagleburger, who was particularly associated with

Yugoslavia (he had been the United States ambassador to

Yugoslavia, and was known by some as Lawrence of Yugoslavia).

Eagleburger must have been concemed tha t he would be he ld

accountable for what was taking place in Bosnia. And so in

D ece m be r 1992, after Bush inte rve ned in Somalia, Lawrence

Eagleburger added his voice to the call for an intemational tr i-

bunal for the former Yugoslavia. He proceeded to name 10 peo-

ple ,

including President Slobodan Milosevic , who should be

brought to tr ial before such a tr ibunal. Two months after that, the

U nited N ations Securi ty Coun cil auth or ized the secretar) gene ral

to present a plan for a tr ibunal and then, in May 1993, the UN

Securit) Council approved a specific plan for such a tr ibunal.

When the Bosnia tr ibunal was created, i t inspired a great deal

of cynicism. First, the UN Securit)- Council delayed in appointing

a chief prosecu tor. I t was no t until Justice Rich ard G olds tone was

ap po inte d, som e 14 m on ths af ter the t r ibu nal was created, that a

chief prosecutor was in place to carr) out the decision of the UN

Securit) Cou ncil . Secon d, it ap pea red at that poin t that the Serbs,

who were regarded as responsible for the largest number of

crimes, were the victors in the war, and few could figure out how

those responsible for the crimes would actually be brought to The

Hague , where the t r ibuna l was headquar te red . Indeed when

someone, somewhat accidental ly, was brought to The Hague (a



B R I N G I N G W A R G R IM I N A L S T O J U S T I C E 1 0 8 9

I th ink those cynica l reac t ions undere s t ima ted the m om en tu m

that was building. Here we have to give a great deal of credit to

Just ice Goldstone, because he became a public face for the t r i -

buna l , and he embodied a de te rmina t ion tha t gave people conf i -

den ce tha t the t r ibuna l would am ou nt to something . As on e of

those who was a proponent of the \aew tha t i t would amount to

som ethin g, I have to say that I am astonished by how m uc h i t has

accomplished. There have of course been many difficulties in the

operat ions of the t r ibunals in The Hague and in Arusha (where

the Internat ional Criminal Tr ibunal for Rwanda is located) . They

operate at a painfully slow pace, but when you think it is only a

decade since the start of the Bosnian war, and how lit t le had been

acco m plishe d before that, i t is rem ark ab le tha t the major f igures

responsible for the greatest cr imes that were committed in the

wars in the former Yugosla\ia and in the internal conflict in

Rw anda will be tr ied, if they have no t already be en tiied , by these

tribu nals . W ith all the ir deficiencies, I am con fiden t t ha t the tr ials

will look ver) good in history. They are conducted according to

standards of due process. There are acquit ta ls , but there are a lso

convicdons of crucial f igures in the commission of the crimes in

those confiicts. And it is the experience of the former Yugoslavia

tr ibunal and the Rwanda tr ibunal that has a l lowed a great many

other things to take place. Kenneth Roth refers to a number of

them, such as the t r ibunal for Sierra Leone, the development of

the idea of universal juri sdi ctio n an d, of course, to the establish-

ment of the In te rna t iona l Cr imina l Cour t .

I would add one other development to that l is t . In a number of

countr ies , cr imes that were committed a long t ime ago, which

seemed as though they would go vmpunished, have since then

been punished by nat ional t r ibunals . There are two tr ia ls before

national tr ibunals that seem to me to be especially significant,

both involving cr imes committed dur ing World WW II . I bel ieve

these would not have come about except for the general move-



1O 90 S O C I A L R E S E A R C H

\iction of Maurice Papon in France for crimes against humanitv.

It was only the second time that a French court convicted a

Frenchman for cr imes against humani t ) commit ted during World

War II. In the previous case of Paul Touvier, the French courts

falselv said that his crimes were committed under the direction of

the Nazis, rather than under French direction. In the Matirice

Papon case, the French for the first time faced up to the fact that

cr imes against hum ani tv were com m it ted by a French ma n un de r

French direct ion.

The other case that seems to me even more remarkable is one

that is less known. It is the trial of a man named Dinko Sakic in

Cro atia. Sakic was, as a ver)- you ng m an , th e c om m an d er of a

de ath cam p called Jasenov ac. Outsid e of the Nazi de ath cam ps in

Poland, the leading kil l ing center in Europe during World War II

w

Jase nov ac. Jews, g) psies, an d tens of tho usa nd s of Serbs w ere

gassed or club bed or bu rn ed to de ath in Jasenov ac. No one knows

how many peo ple died the re, tho ug h the usual est imate is in the

neighborhood of 60,000. .\fter \\?orld War II Sakic fied to

A rgen tina. He was fotmd the re and r etu rn ed to Croatia at the

time that President Franjo Tudjman was still alive and still presi-

de nt . It was widely believed tha t Sakic would be given a pro form a

trial. Indeed, that is what took place. The prosecution did veiy lit-

tle in the Sakic case to produce evidence. But under Croatian law

victims may participate in the trial. A group of victims hired a

lavv) er, who pr es en te d a grea t dea l of eviden ce to th e Cr oatia n

court. Even in nationalist (Croatia the court ultimately had no

choice but to convict Sakic, and sentence him to the maximum

term of imprisonment,. Given his age, that means that Mr. Sakic

will die in prison.

I would l ike to suggest that th ere is a mov em ent un de r wa) that

is of enormous significance. We are, I think, still far from the

po in t w hen it is possible to say th at th e effort to d o jus tice in inter -



BRINGING WAR CRIMINALS TO JUST ICE 1091

swiftness of criminal proceedings that actually functions as a

deterrent, the same is true in international trials. We are a long

way from being able to say that those who commit great crimes

will surely be punished for their crimes, and certainly a long way

from being able to say that they will be swiftly punished for their

crimes. Yet I think we are getting to the poin t where the possibil-

y that they may ultimately face justice is beginning to cross the

minds of at least some of those who participate in atrocities. Also,

I think w can be reasonably confident that the movement for jus-

tice will be sustained, if only because there is a substantial inter-

national human rights movement that has penetrated to all but

the most repressive countries on earth. That movement is focused

on this effort to do justice for great crimes. Therefore I expect

that movement to sustain the momentum for justice. That move-

m ent w as responsible for the ratification for the Interna tional

Criminal Court treatv at a much m ore rapid pace than almost any-

one had predicted. If not now, perhaps a decade from now^ or

perhaps two decades from now, I believe we will reach the point

where the availabilit)- of justice in respond ing to war crinaes—to

crimes against humanitv- and to genocide—will actually ftinction

as a deterren t.

aryeh neier - bringing war criminals to justice, a brief history

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