- Chinese Proverb
Updated by Heidi Burgess in June 2013,
Originally written and posted in July 2003
What International War Crimes Tribunals Are
International war crimes tribunals are courts of law established to try individuals accused of war crimes and crimes against humanity. Despite the often heinous nature of the crimes that individuals commit during intractable conflicts, including genocide, torture, and rape, it has become common practice to offer the accused an opportunity to explain his or her actions in front of the victims and their families, as well as the media. Tribunals have almost entirely replaced retributive justice's summary executions. Based on generally agreed-upon international standards of acceptable human behavior, they have introduced a new ethos of liberal legalism for dealing with war crimes.
Why War Crimes Tribunals Matter
Following a conflict, crimes that have exceeded the normal parameters of war behavior (jus in bello) must be dealt with before a society can begin the peacebuilding process of reconciliation. War crimes tribunals do not offer the accused a chance for forgiveness as truth and reconciliation commissions do. Tribunals do, however, offer victims and their families the opportunity to confront those responsible for what happened to them, and hopefully to put the horrors of war behind them. A tribunal can be a forum for honoring the memory of those lost, as well as punishing those responsible.
The war crimes tribunals of Nuremberg and Tokyo, in which legal justice was used to punish the upper echelons of the German and Japanese military following World War II, continue to be regarded as the most successful tribunals to date. The democratic, progressive success of both nations following these tribunals is often given as evidence of the effectiveness of war crimes tribunals in helping a society that has perpetrated war crimes to return to stable diplomatic relations and the road to peace.
The Positive Side of War Crimes Tribunals
One of the arguments in support of war crimes tribunals is that they act as a deterrent to potential war criminals. This idea was one of the main arguments behind a push to construct a permanent international war crimes tribunal--now established as The International Criminal Court (ICC). Before the establishment of the ICC, tribunals had to be sponsored by an organization such as the U.N. or a national government. Without a permanently-established war crimes court, military and government leaders, it was argued, might feel emboldened to commit crimes such as the mass murder of ethnic groups in East Timor in the 1980s and 1990s, or in Rwanda in 1994. The ICC has been so slow at prosecuting people, however, that its deterrence ability is unclear.
War crimes tribunals offer a rare chance for the world's leaders and citizens to scrutinize both the deplorable decisions made by particular leaders, and the atrocities committed by the soldiers and agents of those leaders. Without such a forum, there would be no method for assuring that the masterminds and perpetrators of genocide and other war crimes are justly punished.
Tribunals also give victims and their families an opportunity to regain a sense of power that may have been lost resulting from a war crime. It is empowering for victims to stand up in a court of law and identify those who wronged them. A war crimes tribunal can also force forgotten or hidden atrocities to be retold by survivors. In this way war criminals living free of judgment are finally forced to accept responsibility for their actions and be judged for what they have done.
For a country attempting to make a transition from a repressive regime to a democracy, war crimes tribunals offer citizens and leaders the opportunity to put their faith in an equitable rule of law. Countries that truly wish to become modern democracies must accept the rule of democratic law and apply it to even their most powerful criminals. While this process takes an enormous effort of national will, nations that successfully conduct tribunals within the bounds of such laws prove they can function without reverting to the undesirable methods of repression and violence. Thus war crimes tribunals have the potential to help emerging democracies discover the benefits of a strong legal system while reconciling past atrocities.
Finally, if all members of a society can agree upon what is unacceptable by trying its war criminals, then it is easier for the society to agree on what is acceptable. A successful war crimes tribunal allows the past to be laid to rest and a peaceful future forged from its results.
The Negative Side of War Crimes Tribunals
Many argue that war crimes tribunals offer no deterrent to potential criminals whatsoever. People with strong convictions against a certain religious or ethnic group will likely not feel any less hatred for that group just because a possible tribunal looms in the future. Both Hitler and Pol Pot believed they would be revered by future generations for the extreme measures they took to change the makeup of their societies. These leaders were inspired by their visions of the future and it is unlikely the prospect of a war crimes tribunal would have swayed either dictator.
In fact, another argument against tribunals is that men like Hitler and Pol Pot, the leaders of violent movements, are never judged by tribunals for what they do. A war crimes tribunal that tries only middle ranking officers, soldiers, and politicians is not as effective as one that tries the mastermind behind the crimes. The trial of Slobodan Milosevic offers some hope for the future of tribunals. However, if Milosevic is acquitted, that will support another argument against tribunals: often the legal system actually helps the accused avoid punishment. Insufficient evidence, unclear testimony, unsure witnesses, and the inability to directly link crimes with individuals due to chains of command are all factors that can lead to war criminals walking free, with full grace of the court.
Another criticism of war crimes tribunals is that they do not alleviate the underlying causes of the conflict. In fact, tribunals can escalate conflict, especially in a multi-ethnic society. In cases of genocide, those accused of war crimes are usually all from one ethnic group. To this group, a war crimes tribunal can appear to be a trial against their ethnicity, not just an individual from their group. This is especially true when the judicial system fails to fairly represent the whole society. For example, Rwandan Hutus accused of killing Tutsis would doubt in the possibility of a fair trial if only Tutsis were running the tribunal. Other Hutus, including those not accused, would likely feel the same way. Thus the war crimes tribunal could act as a wedge driving the two groups further apart.
This idea leads to another complaint about war crimes tribunals: that they are ineffective in transforming a fractured society into one of stability and peace. Following the end of apartheid in South Africa, the Rev. Desmond Tutu argued against a war crimes tribunal, pushing instead for a truth and reconciliation commission. He believed that no reconciliation or transformation was possible if the accused were not forgiven. War crimes tribunals necessarily demonize individuals and sometimes whole groups, further separating parties, instead of building peace.
Possibly the most powerful argument against war crimes tribunals is that they offer only the victors justice. What was most obviously missing following World War II was not Hitler at Nuremberg, but a trial for Americans, French, British, and Russian individuals who committed acts that would have been considered war crimes had the Allies lost the war. The fire bombing of Dresden and the use of atomic weapons on Hiroshima and Nagasaki are clear examples of acts for which Allied leaders would have been tried had the war ended in favor of the Germans and Japanese. While it is easy and satisfying to put the enemy in prison for what he or she has done, it does not seem entirely fair if all those who participate in a war are not held to the same standards. In fact, one of the reasons that the United States has so far failed to support the International Criminal Court is fear that U.S. officers would be found guilty by the court. The United States also fears that this Court could be used for political revenge against the world's only superpower.
The Creation of an International Criminal Court
The International Criminal Court (I.C.C.) was officially established on July 1, 2002, and is located in The Hague, The Netherlands. However, all of the world's nations have not ratified the Rome Statute of the I.C.C., the document outlining the purposes, capabilities, and restrictions of the I.C.C. In fact, the United States, Russia, and India are among the major states that have yet to ratify this document. However, a sufficient number of nations have ratified the Rome Statute, and in accordance with its rules, the court now officially exists.
A key component of the I.C.C. is that only war crimes committed after the I.C.C.'s establishment can fall under its jurisdiction. Another aspect is that only those nations that ratify the document will fall under its jurisdiction. In general, the I.C.C. will have jurisdiction over crimes brought to its attention by outside parties or by its own investigators. The I.C.C. will not replace national tribunals, but will complement them by offering an arena for hearing claims that may be too complicated or extensive for a national court.
One could argue that until all of the nations of the world ratify the Rome Statute, the Court cannot truly be considered an international criminal court. However, the establishment of the Court is a significant step toward the creation of an international system of war crimes justice. (More on the ICC can be found in the BI article on that topic.)
 Bass, Gary Jonathan. Stay the Hand of Vengeance: The politics of war crimes tribunals. (Princeton: Princeton University Press, 2000)
 Kritz, Neil J. Transitional Justice: How emerging democracies reckon with former regimes. (Washington: USIP, 1995)
 Tutu, Desmond Mpilo. No Future Without Forgiveness. (New York: Doubleday, 1999)
 Rome Statute of the International Criminal Court. (United Nations, 1999-2002) [on-line] Available from http://untreaty.un.org/cod/icc/statute/romefra.htm. Accessed on January 30, 2002.
Use the following to cite this article:
McMorran, Chris. "International War Crimes Tribunals." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: July 2003 <http://www.beyondintractability.org/essay/int-war-crime-tribunals>.