By Rashika Rakibullah
This past week, UCSD students, faculty and community members had the opportunity to hear from a former Deputy to the U.S. Ambassador-At-Large for War Crimes Issues in the U.S. State Department’s Office of Global Criminal Justice. The speaker, Beth van Schaack, is a specialist on the topics of human rights, war crimes and international justice and now a law professor at Santa Clara Law School. Her talk was moderated by UCSD’s own Emilie Hafner-Burton, a professor at the Graduate School of International Relations and Pacific Studies who currently serves as the Director of the Laboratory on International Law and Regulation. Following their remarks, both experts engaged the audience in a discussion regarding the effectiveness of current institutions given the task of establishing and preserving international justice.
Much of van Schaack’s talk focused on the United States’ role in the history of international criminal justice and the various factors that have affected its development. The concept of international criminal justice was first cultivated in the aftermath of World War I. The Allied powers specifically stipulated in the Treaty of Versailles that Germany would have to allow its Kaiser to be arraigned for offenses against “international morality,” the first time such a requirement had been explicitly mandated. Another article within the Treaty called for the establishment of military tribunals to try those who had committed “acts in violation of the laws and customs of war,” resulting in the Leipzig War Crimes Trials in 1921. Surprisingly, at the time, the United States was strongly against such measures, cautious of the limitations that these new regulations would place on its own use of aggressive methods during wartime. Ultimately, the efforts made during this period failed—only 12 people were prosecuted, all of them low-level officers who argued they were merely following the orders of their superiors.
The situation was vastly different following World War II, however. As more information was discovered about the atrocities committed during the war by Nazi Germany and Imperial Japan, the international community resolved to ensure the perpetrators were caught and punished. This time, the United States led the process: at Yalta, President Roosevelt advocated for a civilized approach to prosecuting war criminals, disagreeing with Churchill and Stalin’s plans for immediate public executions. Military tribunals were soon set up in Nuremberg and Tokyo, establishing a precedent of trying political leaders for war crimes, crimes against the peace (meaning aggressive actions that fall outside the normal rules of war), and crimes against humanity, which were interpreted as actions committed against one’s own people. Unlike the Leipzig Trials, both tribunals proved to be successful and resulted in the prosecution of many top leaders in both Germany and Japan (notable exceptions, of course, being Adolf Hitler and the Japanese Royal Family).
Following the Nuremberg and Tokyo Tribunals, there was little discussion of international justice norms. Throughout the Cold War, many pieces of legislation were drafted but never implemented. It wasn’t until the 1990s that the topic was once again prioritized, following the dissolution of the Soviet Union (and the ensuing genocide in the former Yugoslavia) as well as horrific crises in Rwanda, Cambodia, Kosovo, and Bosnia. After successful tribunals for all these situations, the International Criminal Court (ICC) was established through the Rome Statute in 2002. Meant to serve as a permanent tribunal to prosecute war criminals, the ICC immediately ran into obstacles to its success. Although 122 countries have both signed and ratified the Rome Statute, 31 have not and 3 (Israel, Sudan and the United States) do not ever intend to. This has severely limited what the Court is able to do in various regions of the world. Many have urged the Court to investigate grave human rights violations in Palestine, for example, but the ICC was unable to do so due to Palestine’s status as an unrecognized state.
Particularly interesting is the role the United States has played during this process. As mentioned by both van Schaak and Hafner-Burton, political events and personalities have hampered the effectiveness of institutions meant to establish international justice: “who is sitting in the chair?” asked Hafner-Burton. When Bill Clinton was on the chair, for example, the United States backed the ICC and signed the statute. Under the Bush administration, however, John Bolton, then the U.S. ambassador to the U.N., “un-signed” the statute through a letter delivered to the U.N. Secretary-General and pledged not to ratify it. Swinging the other way, Barack Obama’s administration has been slowly moving closer to ratification, although the “un-signing” has not yet been publicly rescinded and the process will be slow due to the eight missed years of conversations during the Bush years. Meanwhile, Congress has recently expanded the “War Crimes Rewards Program,” signed into law by President Obama in January 2013, which provides monetary rewards of up to $5 million for those who provide information on suspected war criminals. Another recent initiative is the establishment of the Atrocities Prevention Board, an inter-agency committee created by the President to share resources and collect information in order to prevent potential genocides. Despite its noble goals, however, the APB has so far failed to prevent violence in three regions that it has been monitoring: South Sudan, the Central African Republic and Syria.
After van Schaack’s overview of the history of global justice and its current status, Professor Hafner-Burton added commentary based on her work in human rights legislation. Noting the aforementioned effect of political agendas and the length of the process in establishing the ICC from World War I to 2002, she raised a few pertinent concerns about its effectiveness. There are currently numerous outstanding arrest warrants in all the regions of the world in which the ICC is operating, with no plans to vigorously pursue the suspected criminals. Worse, it appears that there may be a tradeoff between peace and ensuring justice in some of these areas. When an arrest warrant is issued, for example, it sometimes incites further violence from the suspect’s supporters. An example of this can be found in Bangladesh, which recently witnessed the Shahbag protests in early 2013. These protests were in response to the life sentence given to a war criminal by the International Crimes Tribunal (ICT), established to investigate the 1971 genocide of Bangladeshis by the Pakistani army and their allies. Many took to the streets demanding capital punishment instead, claiming life imprisonment to be too lenient. Counter-protests soon rocked the country’s capital, however, as the convicted politician’s supporters rallied behind him. As the ICT handed down more verdicts, violence erupted throughout the country, resulting in 109 deaths and more than 800 injured. Another example is that of the tribunal set up in Yugoslavia, the first of its kind. It was created with the idea that it would act as a deterrence for perpetrators; instead, major atrocities occurred after it had been set up and the tribunal further exacerbated tensions between Serbs and Croats.
As Hafner-Burton noted, there is no empirical evidence suggesting that any of the institutions currently in place actually work as they are intended—rather, certain situations indicate otherwise. Further, political circumstances, both domestic and international, often hinder the process. However, near the end of the event, van Schaack touched on one ray of hope: public polls taken in various regions about the importance of international justice. Overwhelmingly, participants voiced the need to continue pursuing justice and creating further collaboration between countries towards that goal. At least in her expert opinion, she said, that is the best indication that global justice may one day become a reality.
Photo by US Mission Geneva