Preparing for Peace
The website of the Westmorland General Meeting 'Preparing for Peace' initiative
Sunday 9th November 2003
Prosecuting War Criminals
was delighted to get an invitation from Brian Walker to address a meeting of the
Religious Society of Friends in Kendal Town Hall.
I was particularly pleased for two reasons.
The first is that for many years I have admired the philosophy and the
work of the Quakers and the second, let me confess, I could not resist an
invitation to come to the Lake District. I
have always wanted to come and have never had the time or the opportunity. It has been a wonderful twenty-four hours in this lovely part
of the world.
modern Law of War began, of course, as a result of the work of the International
Committee of the Red Cross in the nineteenth century.
Henry Dunant, a wealthy Swiss business man, was horrified at the way
injured soldiers were left to die in agony on the fields of Solferino in Italy,
and he decided to do something about it. I
think we should remember that it was one person who founded the International
Committee of the Red Cross: it is amazing what leadership can do and what a
difference one person can make. It
is interesting that the very first recipient of the Nobel Peace Prize was Henry
Dunant, in response to the work of the International Committee of the Red Cross.
Law generally deals with when it is legal to make war, but Humanitarian
Law, as developed by the Red Cross, deals with the way in which wars
should be fought. Thus it does not
deal with whether war should be declared, or whether a war is lawful.
The analogy that I always like using comes from the so-called sport of
boxing: the Queensberry Rules apply only once the bell has been rung and two men
- I am afraid to say these days even women - enter the boxing ring and try to
knock each other senseless. The
Queensberry Rules do not refer to, nor do they have anything to do with, the
morality or legality of the sport of boxing; they are simply triggered by the
bell ringing to indicate the first round. The
Law of War is similar. This
confuses many people - they wonder why the Law of War does not outlaw war.
It does not outlaw war because it is only triggered when the war
begins. I think that is an
important aspect to bear in mind.
trigger for recognising individuals in International Law was Nuremberg.
The Nuremberg Tribunal was set up by the four victorious powers, in what
was called the ‘London Agreement’, towards the end of the Second World War.
The four powers decided that the Nazi leaders should be given a fair
trial - fair certainly by the standards of the 1940s and early 1950s - but the
laws that were used were found to be wanting.
The law is always retroactive. For
example, as ways of doing business change with the use of the Internet, so the
laws of banking have to change. The
Law of War is similarly retroactive. After
each great war the Geneva Conventions have been updated. They had to be updated after the First World War because
nobody had contemplated air war - there was no such thing when the first laws
were drafted in the nineteenth century. After
the Second World War they had to be updated: the four Geneva Conventions with us
today date from 1949, with two optional protocols updating them in 1977.
new laws were needed to prosecute the Nazis.
It was decided to add to the jurisdiction of the Nuremberg Tribunal what
were called, ‘Crimes against Humanity’.
Though such crimes had been referred to by academics between the two
great wars, there had never been such a thing in the legal lexicon.
They were recognised for the first time in charges laid against the Nazi
leaders - amongst other crimes. Recognition
of crimes against humanity was the key that opened a Pandora's box.
Firstly, it demonstrated that some crimes are so huge, and are so
horrible, that they are crimes not only against the immediate victims
themselves; they are crimes not even only against the country - and its people -
where the crime was committed; they are crimes truly against all of human kind.
Secondly, it introduced universal jurisdiction, for if these are crimes
against all people in the world, the courts of any country, no matter how remote
from the scene of the crime, have jurisdiction to bring such a person to justice
and, if found guilty, to punish them.
idea of universal jurisdiction was not completely new.
For many hundreds of years pirates have attracted universal jurisdiction:
they can be put on trial in any court in the world, no matter where their act of
piracy took place. This legal
situation arose out of necessity - since pirates do not commit their crimes on
land, they do not commit their crimes in the jurisdiction of any one court.
Unless all courts have jurisdiction, they would be given an
effective amnesty. So universal
jurisdiction was recognised for pirates. But
as a result of the holocaust, and the other terrible crimes committed by the
Nazis in the Second World War, International Law recognised the principal of
universal jurisdiction in respect of war crimes.
the Genocide Convention, which followed Nuremberg in 1948, did not incorporate
universal jurisdiction. The
Genocide Convention did three things. Firstly,
it defined this most horrible of crimes, the crime that requires the mental
intent of wiping out a whole people or part of a people.
Indeed, they had to invent a new word for a genocide, because nobody had
ever thought of a crime of that magnitude.
It had never entered any sane person’s mind before the Second World War
that anybody would wipe out a people, and although it had happened with the
Armenians at the end of the First World War, there had never been a law in
reaction to it. Secondly, the
Genocide Convention said that the crime of genocide should be charged in
domestic courts; in other words, a country should put on trial any of its
citizens (or people within its borders) who commit genocide.
Thirdly, however, the Convention goes on to say that a person suspected
of committing genocide could also be charged by an international court.
That is very interesting: in the Genocide Convention, which the United
Nations passed unanimously on the 11th December 1948 - the day after the
Universal Declaration of Human Rights - UN members realised and hoped that in
the not too distant future there would be an international criminal court.
But it was wishful thinking in 1948.
It was almost half a century before the first international criminal
court was set up by the United Nations, for the former Yugoslavia.
sees, then, the growing use of universal jurisdiction.
Indeed, in the sixteen international conventions dealing with terrorism
there is in all of them the use of universal jurisdiction.
Many people, particularly in the United States, are surprised that of
those conventions, fourteen anti-date the attacks of 9.11.2001.
The earliest United Nations convention dealing with the scourge of
terrorism comes from the 1970s, with regard to the hijacking of aircraft, the
protection of international diplomats taken as hostages, the piracy of civilian
ships, and so forth. There is in
fact a plethora of United Nations conventions dealing with acts of terrorism,
even in the absence of an agreed definition of terrorism within the
international use of universal jurisdiction increased, so too did domestic use.
Famously, the Belgian parliament and judges took it upon themselves to
give their courts the power to arrest and put on trial anybody committing war
crimes, even if they had no connection with Belgium.
They were not alone in this - there were other European countries with
the same idea - but Belgium introduced it.
This has now of course been amended by the Belgian parliament under
threat from Washington, but it shows that there are various ways to deal with
war criminals: international courts and domestic courts.
Thus we in the international community are always grappling with two
difficult questions: which are the appropriate courts, and what are the
appropriate methods to deal with war criminals?
to development in international justice in regard to war crimes, was the growth
of the idea of Humanitarian Intervention. It
certainly came to the fore in respect of Kosovo.
Humanitarian Intervention involves the use of military force, if
necessary, to protect the lives of innocent civilians.
Some very difficult questions obviously arose for pacifist organisations
in consequence of Kosovo, because here was a case where I do not think anybody
could question the motives of the NATO nations.
The NATO members intervened in Kosovo for one reason only, and that was
to protect the lives of innocent Albanian Muslim people who lived in this
province of Serbia. There was no
ulterior motive, there was no land, there was no oil, there was no trade; there
was no interest at all for the United States, the United Kingdom, or any of the
other NATO nations, other than the lives and safety of the people.
By the time bombing started, over a million Kosovo Albanians had already
been forced from their homes into refugee status, or had become displaced
persons in their own province of Kosovo.
raised a very difficult question as to the morality of using war to protect the
lives of innocent people. The
Swedish Prime Minister set up an International Investigating Committee - of
which I was a member - to look into that and other questions. Our Committee included representatives of five continents,
both lawyers and non-lawyers. We
came to the unanimous conclusion that the intervention in Kosovo was illegal,
because it did not have Security Council authorisation, but that it was
legitimate or justified by the moral and political considerations which had led
to intervention. Many people had
difficulty following that - some people found it an oxymoron to declare an
action legitimate yet illegal - but that was the conclusion that we reached and
it has, I think, been generally accepted. It
was accepted by the United Nations Security Council itself.
Interestingly, after the Kosovo bombing had succeeded in putting an end
to the ethnic cleansing - a horrible concept - of the Kosovo Albanians, Russia
proposed a resolution in the Security Council condemning the bombing.
That resolution was defeated by thirteen votes to two, which was a very
strong expo facto justification, or acceptance at its lowest, of the NATO
action in Kosovo.
sees, then, a growing need for more definition, a need to look at whether
International Law is coping. I do
not think that International Law or any other law should be put above change or
scrutiny, though it must not be change simply for the sake of change.
Certainly, a number of bodies, including the International Committee of
the Red Cross, are debating whether, in the face of international terrorism and
the use of modern technology by a very few people, laws need to be changed.
was now January of 1994, some seven months had passed since the Tribunal had
been set up, and there were eleven frustrated, angry judges with no work to do
in The Hague. Between January and
June of 1994, Boutros-Gali nominated eight people to be Prosecutor.
Each one was vetoed by members of the Security Council.
Russia vetoed five who came from NATO countries.
The United States put up one of their people, an academic who happens to
be a Muslim, and the United Kingdom vetoed him.
That decision angered Muslim nations because they thought, rightly or
wrongly, that the United Kingdom did not want a Muslim in that position. There
were good grounds for having such a view with regard to the religious make up of
the Balkans. Then, when the United
Kingdom put up a Scottish lawyer, the Muslim countries vetoed him to punish the
United Kingdom. One of the nominees
put up by Boutros-Gali was Soli Sorabjee, the Attorney General of India, who
would have made an outstanding prosecutor; unfortunately, Pakistan - which had a
seat on the Security Council - vetoed the idea of an Indian holding that
position. Imagine the effects, I
might say, on the victims. The
victims of most terrible war crimes were buoyed-up when the Security Council set
up the Tribunal: they thought, somebody is taking notice of our victimisation.
Then there was no prosecutor for fifteen months because of political
games, and there were political games being played by the members of the
then, was the position in June of 1994, when a bright French judge suggested to
the Italian President of the Tribunal that if they could find somebody with the
support of Nelson Mandela, it would be impossible in the middle of 1994 for
anybody to veto him or her in the Security Council. So they came to me. I
was not particularly interested for good reasons.
I knew nothing about Humanitarian Law and I was not an international
lawyer. I had never prosecuted in
my life, nor did I know anything about the Balkans. When the invitation came from Judge Cassese, I had no
intention at all in taking it. But
then two things happened, two important people in my life thought differently.
One was Nelson Mandela, who said that it was very important I should do
this - the War Crimes Tribunal was important and it was the first international
position offered to a South African after our democratic election in the middle
of 1994. He put a great deal of
pressure on me, and he had as his great ally my wife, who thought it was a good
idea to get out of South Africa for a couple of years as we had lived under
heavy policy security. I really had no way of resisting a combination of Nelson
Mandela and my wife, so I ended up taking the position. But you can see behind this process the real political games
that went on, and the reason why, in my view, War Crimes Tribunals in
International Courts should not be controlled by politicians. They are simply not going to work. If those sorts of games are also the manner in which
decisions are taken as to where war crimes should or should not be investigated,
then in my view, and I say it in all seriousness, rather do not have an
International Criminal Court at all.
successes were sufficient to galvanise the movement towards a permanent
International Criminal Court. Again,
it is ironic that it was the United States which led that movement.
It was the United States which encouraged the Secretary General of the
United Nations to call the meeting in Rome in June and July of 1998 for an
agreement on the International Criminal Court.
What changed, and it was a tragedy, was that the United States, under
pressure from its own military, performed an about-turn.
Instead of being the leading nation in favour of the International
Criminal Court, the United States became an opponent; and when it came to the
vote in Rome, the United States joined only six other countries, including
Syria, China, Qatar, Yemen and Israel, in opposing the Rome Statute.
During the Clinton administration, they were not going to take active
steps to undermine the International Criminal Court; and they signed, though
they had no intention of ratifying the Rome Statute. But that, of course, has changed. When the Bush administration came into power, President Bush
gave notice to the Secretary General that he was un-signing what President
Clinton had signed, and that he was not going to sit by: his administration was
going to take active steps to undermine the infant International Criminal Court.
then, the judges have been elected, and ninety-two countries have ratified the
Rome Statute, so there is a critical mass of nations, including every member of
the European Union, and certainly a strong majority of Commonwealth countries.
But ‘the jury is out’. I
do not know whether that Institution is going to be successful in the face of
opposition from the World's sole superpower.
I am not un-optimistic. They
have appointed an outstanding and very experienced Argentinian Prosecutor, Luis
Moreno-Ocampo, who has built up a wonderful staff.
He has already indicated publicly that the first investigations will be
into terrible war crimes committed in the Democratic Republic of the Congo, a
situation crying out for investigation. It
is also a sensible place to start, politically; whether the decision was taken
with that in mind I do not know - and if I did know I would not discuss it - but
it is perhaps a good thing that the first investigations will be in a part of
the world that the United States does not feel particularly threatened by.
If it was in the Middle East, I think it would be a very different
situation. Incidentally, since none of the relevant countries have
ratified the Rome Treaty, the International Criminal Court does not in fact have
jurisdiction over any war crimes committed in the Middle East.
am an optimist and I have no doubt that there is a need, a crying need, for an
International Criminal Court if war criminals are going to be put on trial.
Let me end by saying that the most important aspect of international law
- and I have referred to them indirectly already - are the victims.
They are always forgotten. Politicians
seem to put them at the bottom of the agenda if they appear on it at all - when
it came to those vetoes in the Security Council, nobody gave a thought to the
victims. The victims are always
people who are far away from your shores, people who look different to you, and
who do not, therefore, seem to evoke the sympathy or even the interest of many
people. One sees it even now in
this present Iraq war: newspapers in the United States and in the United Kingdom
are very precise about the number of their people who have been killed, yet I
have not even seen estimates of the number of Iraqis, innocent Iraqis, who have
been killed in this war. They simply drop off the agenda because they do not matter.
I think this explains, also, how some of the horrors of war can be
committed: because certain people do not seem to evoke our sympathy, they are
somehow less worthy than our own. I
do not think that some of these war crimes would be committed if these people
are regarded as our equal and as deserving of equal rights.
then, are the issues facing us in the twenty-first century?
As I have said, I am an optimist, but I am not a great optimist about
stopping war. The twentieth century
was a very bloody one. One thing I do know is that if war criminals are seriously
hunted down and punished it can act as a deterrent.
It will not work in all cases, but in some cases it will.
It is like any criminal justice system, no different from that of your
own country: the more efficient the legal justice system, the lower the crime
rate; the less efficient the legal justice system, the higher the crime rate.
I can see it being no different in the international community. If would-be war criminals truly feared arrest and punishment
some of them would think twice. I
will give one illustration in conclusion. In
all of the three recent wars fought by NATO and/or the United States - in Kosovo,
Afghanistan, and Iraq - great care has been taken to avoid civilian deaths.
Kosovo was remarkable: in seventy-eight days of bombing, fewer than two
thousand people were killed; quite remarkable having regard to the figures you
heard earlier of 10:1 [the ratio of civilian deaths to deaths of members of the
armed forces] in virtually every other war since the Second World War.
Afghanistan was the same, to a lesser extent; there, daily statements
were made by the United States’ President and military leaders, saying ‘we
are taking steps to protect innocent civilians, we are applying the Geneva
Conventions.’ And so, too, in
Iraq, though mistakes and wrong decisions may have been made.
it not for war crimes tribunals and the publicity given to war crimes, I do not
believe there would have been that attitude on the part of the Western nations
with regard to the protection of civilians.
Of course, it is not great comfort, because it is the oppressive
dictators, not the democratic countries, that one worries about; but, certainly,
in other wars, the democracies did not think twice about killing innocent
civilians. In Vietnam 90% of the
war dead were civilians, in Korea 54%. There
was no thought given when dropping the atom bomb on Hiroshima.
This is a change and it is a change that I have no doubt has been brought
about by the existence of the war crimes tribunals, and the fear that leaders in
the Western world - be they political or military leaders - have of being
branded as war criminals. Public
opinion is also changing and public opinion is important.
That is the importance of groups like this, because your voices are
heard. It is not only the Henry
Dunants who make a difference - all of us, in our private lives and in our
public lives, can make a difference.