September 2003
The concept and issue of war crimes are both relatively new. Of course, inhuman acts have been committed in wars throughout history. However, it was only with the Holocaust and other genocidal atrocities of World War II that politicians, lawyers, and average citizens alike began to think of some of the horrors of war as crimes for which perpetrators could be held legally accountable.
Before then, individual soldiers could be tried for individual crimes such as rape or murder. However, it was only when political and military leaders began to systematically target large civilian groups because of their nationality, ethnicity, gender, or religion that we began to see the necessity of holding political leaders accountable for their political decisions in a court of law.
What Are War Crimes?
It has long been considered acceptable for the victors to try the leaders of defeated countries for violations of international law after the completion of a war. However, it has only been in the last century and a half that rules and procedures for doing so have begun to be codified and regularized. The first major step came with the development of the Geneva Conventions for the treatment of prisoners of war, civilians, and others during combat. The Conventions were largely written by the International Committee of the Red Cross and have been ratified by many, though not all, states. They continue to be updated, most recently to include civil as well as international wars.
The other major turning point came at the Nuremberg and Tokyo trials of leading German and Japanese officials after World War II. The Nuremberg Trials were particularly important because they made steps toward defining what is meant by crimes against peace ("planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties") and against humanity ("murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial, or religious grounds").[1] Those precedents were later approved by the General Assembly of United Nations and are now considered to be part of the main body of international law. After the systematic use of rape by Serbs in Bosnia and Croatia in the first half of the 1990s, it was added to the list of crimes.
There is, unfortunately, a considerable lack of clarity in these and other definitions, which have been offered for war crimes. First, there has been a very definite reluctance on the part of the international community to prosecute war crimes that either fall below a certain undefined magnitude or to even consider those that receive little or no coverage in the Western press. Second, as has been the case throughout history, it has proven all but impossible to hold victors accountable for alleged war crimes. Thus, there have been credible accusations against the United States for its bombing of Serbia during the Kosovo crisis in 1999 and for the impact of its sanctions on Iraq since the Gulf War of 1991. Similarly, many critics accuse Israel of violating international law in its continued occupation of the West Bank and the Gaza Strip and its more general treatment of Palestinians.
What's more, the prosecution of war crimes is highly controversial. Tens of millions of civilians lost their lives in fighting beginning with the Second World War, most of them on "religious, racial, or political grounds." Yet, there were only four war crimes tribunals convened between 1945 and the end of the century. The first two tried the leaders of Germany and Japan. The others were created to prosecute alleged perpetrators of genocide in the former Yugoslavia and in Rwanda.
Neither, ICTY (the International Criminal Tribunal for the Former Yugoslavia) or ICTR (the International Criminal Tribunal for Rwanda) has been a rousing success by anyone's standards. While ICTY was in the midst of an extended trial of former Yugoslav President Slobodan Milosevic when this essay was written, many of the most notorious Serbian leaders avoided capture for years, including General Ratko Mladic and former Prime Minister Radovan Karadzic of the Republika Srpska, which was allegedly responsible for most of the atrocities. The Rwandan situation is different. As many as 200,000 men have been detained, many of them since shortly after the genocide in 1994. Neither the Rwandan government nor the ICTR has the resources to try so many people, let alone deal with the social and political consequences of any such number of convictions of people who killed their fellow citizens, most often by using machetes.
To avoid the use of ad hoc courts such as these, ensure due process and the rule of law in war crimes cases, and to deter future war crimes, the international community created the International Criminal Court (ICC). The Statute of Rome, which gave birth to the Court, was approved by a vote of 120 to 7 of UN member states in July 1998. By April 2002, the required 60 countries had ratified the treaty (the number had topped 75 by the end of 2002), and the Court was therefore formally created in July 2002. It will only have jurisdiction over crimes committed after that date and only if states do not initiate cases in domestic courts. It will, however, provide a permanent tribunal before which large-scale crimes against humanity can be pursued. It, too, is controversial.
A number of important countries had not ratified the treaty by the end of 2002, including the United States, Russia, China, and Iraq. The United States (an original signatory of the Rome Statute) has been outspoken in its opposition ever since the Bush Administration took office and formally "unsigned" it in early 2002. Even though most legal experts think there are adequate guarantees to the contrary, Washington has claimed that American troops, including its peacekeepers, could be subject to arbitrary harassment and prosecution under its provisions.
Some critics argue that war crimes tribunals suffer the same major flaw as all of international law. Indictments may be issued, and some trials may be held. However, the international legal system lacks adequate enforcement mechanisms to arrest and otherwise implement whatever decisions it makes, especially since so many large and internationally engaged states have refused to enter the ICC system.
Finally, as in Rwanda, where so many average citizens have been caught up in war crimes charges, there is growing support to deal with the cases through restorative justice rather than international criminal law. Tens of thousands of prosecutions could place an impossible burden on any country's legal system and could actually deepen the divisions left after the end of the fighting. As a result, a number of countries (including Yugoslavia and Rwanda) are considering versions of a truth and reconciliation commission to handle the cases of all but the worst perpetrators of war crimes.
Why Are War Crimes Important
War crimes are important because they have been committed in virtually every war fought in recent decades. The reasons for that range from the spread of deadlier weapons, which make the killing of citizens and "collateral damage" all but unavoidable, to the intense racial, ethnic, and religious hatred that underlies many of today's disputes. In short, intractable conflict seems to bring massive human rights abuses in its wake. Not dealing with the crimes of war, then, only deepens the anger that gave rise to the fighting and in so doing lays the groundwork for even bloodier battles in the future.
What Citizens Can Do
On one level, there is little that average citizens can do about war crimes. Once a case reaches one of the tribunals, it becomes the province of a tiny band of attorneys who have mastered the thousands of pages of documents underlying the ICC and the rest of the statutes and precedents underlying international criminal law.
On another level, popular involvement is all-important. Wars, including war crimes, in far-off parts of the world receive very little attention in the Western mass media. And, because crimes against humanity often never appear on our "radar screens," there is little public pressure to do anything about them.
Today, fortunately, it is relatively easy for people to inform themselves about human rights violations, including war crimes, on the World Wide Web. Traditional organizations such as Amnesty International and Human Rights Watch have broadened their missions to include some of the issues that fall under the ICC's jurisdiction. And, Crimes of War is but the most important of the NGOs, which routinely investigate and publicize alleged instances of gross violations of human rights. Without that kind of an informed public, it seems highly unlikely that pressures to strengthen the international regime combating war crimes will grow.
What States Can Do
The ICC, the UN, and other international courts are part of what international relations experts call a "regime," a collection of rules, institutions, and norms that bring a degree of order to a rather disorderly system of global politics. As suggested earlier, however, the regime has more than its share of problems. And, in an international system which is still largely dominated by states as far as reaching new international agreements is concerned, their support will be needed if more "teeth" are to be added to the ICC and other legal institutions.
At the very least, the United States, Russia, China, Iraq, and the other 100-plus countries, which have not ratified the ICC treaty, must do so. It may well be that the treaty will have to be modified or other "side agreements" reached before these reluctant powers feel comfortable joining.
Even more importantly, states that are parties to the regime have to do what they can to strengthen it. That means using all the moral, legal, and political power at their disposal to make certain that alleged violators of international criminal law are prosecuted and punished if convicted. Moreover, as has happened in the development of other international regimes (e.g., international trade or telecommunications), states can play a critical role in creating an environment in which support for new powers and new members grows.
What Third Parties Can Do
Similarly, third parties, including the international legal institutions themselves, have a vital role to play. Despite the refusal of the United States and the other countries to join the ICC, the overall trend since the end of the Cold War has been for international courts to gain, not lose, influence. While the realists are no doubt correct when they claim that international courts lack the enforcement power of their domestic equivalents, some, including the various European courts, do have considerable power. Even more importantly, the international legal institutions and third parties in general have contributed to the growing realization that war crimes are a serious problem. After all, it is barely half a century since the first war-crimes tribunals were convened.
[1] Both in Graham Evans and Jeffrey Newnham, Penguin Dictionary of International Relations. (London: Penguin, 1996), 567-8.
Use the following to cite this article:
Hauss, Charles (Chip). "War Crimes ." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: September 2003 <http://www.beyondintractability.org/essay/war-crimes-general>.
