War Crimes Trials - Righteous or Bogus Victors' Justice?

[David Thompson]

Scott -- Thanks again for your thoughts on this subject.

Hypo #1 -- I agree that this prosecution would be righteous. This was a pleasant surprise because I had (mistakenly) gotten the impression that you favored impunity (as the Latin Americans call it) for war criminals on some kind of national sovereignty theory.

Hypo #2 -- This hypo is based on Germany, but (with the exception of the dates) also applies to a number of European, Asian and Latin American countries. To the extent that the dictator broke pre-existing laws of the country, I think that country can righteously try him and his agents. I don't think the manner in which the dictator was overthrown should make much difference.

Assuming that the dictator only oppressed his own people, I don't think that another country, acting alone, can righteously put him on trial and punish him.

Could a group of nations, acting together, punish a dictator for violating international law in oppressing his own people? This is still pretty controversial. The International Criminal Court seems to think the answer is yes, but not everyone agrees.

Hypo #3 -- I agree. The practical question of extradition is the only real problem here.

Hypo #4 -- I think the prosecution is righteous. Again, extradition is the only real problem here.

Hypo #5 -- I have reservations about whether or not a prosecution on this theory would be righteous, as discussed above, but the theoretical problem is avoided if the accused is prosecuted for his acts under the Hypo #3 and #4 theories.

I'm going to try to get into the question of ex post facto war crimes laws here in a few days or so.

[Roberto]

This subject comes up so frequently I thought I'd give it a separate thread of its own. That way it won't appear as a distraction or "red herring" on other threads.

I'll start it off with a question for Scott Smith:

Scott -- Country A invades Country B, and occupies part of it. Country A permits mass executions of civilians, but Country B does not.

Officials of Country A administer the occupied portion of Country B, and carry out mass executions of Country B's civilians. Country B captures the officials from Country A who ordered the mass executions in the occupied area.

Country B puts the occupation officials of Country A on trial, charging the officials with violating the laws of Country B by conducting mass executions of civilians within its territory.

Righteous prosecution, or bogus "victor's justice?"

With all due respect, I think the question is wrongly put insofar as the answer depends not so much on whether or not those holding trial also had blood on their hands but on whether or not they

1) charged the defendants with actions that were condemned under international law before they were committed, and

2) abided by procedural rules providing for a fair trial, namely presumption of innocence, the defendants' right to a qualified defense of the defendants' own choice, the right of that defense to produce evidence in favor of the defendant and to challenge the evidence produced against the defendant by the prosecution, and conviction only on account of such actions regarding which a defendant's guilt could be proven beyond a reasonable doubt.

If these conditions are complied with, even a drug lord can hold a valid trial over another drug lord, in my opinion. Such a trial may be considered hypocritical to the extent that the defendant's crimes are identical with such the one holding trial has also committed, but it couldn't be called "bogus victor's justice".

As to condition 1):

However much Nazi apologists whine about "ex post facto law" and "political charges", the fact is that there is not much room for questioning the legitimacy of Counts Three (War Crimes) and Four (Crimes Against Humanity) of the Indictment. The prohibition of ex post facto law is designed to protect against being charged with an act which one could not know at the time of commission was criminal, and no one living in a civilized nation in the mid-20th century could have been unaware that the conduct identified under those charges was criminal under the laws of every civilized nation, including Germany.

Count Two, Crimes Against Peace, may be seen as problematic insofar as in theory it can be very difficult to determine whether a war is aggressive or defensive, and also because it may be questionable whether there was a clear precedent for making a war of aggression a criminal offense. As to the first problem, it clearly does not arise in what concerns the German attacks on Poland, Belgium, the Netherlands, Denmark, Yugoslavia, Greece and the USSR. As to the second, it may be worth while having a look at the assessment of Justice Jackson in his report to the president of the US dated 7 June 1945.

[...]Doubtless what appeals to men of good will and common sense as the crime which comprehends all lesser crimes, is the crime of making unjustifiable war. War necessarily is a calculated series of killings, of destructions of property, of oppressions. Such acts unquestionably would be criminal except that International Law throws a mantle of protection around acts which otherwise would be crimes, when committed in pursuit of legitimate warfare.[my emphasis] In this they are distinguished from the same acts in the pursuit of piracy or brigandage which have been considered punishable wherever and by whomever the guilty are caught. But International Law as taught in the Nineteenth and the early part of the Twentieth Century generally declared that war-making was not illegal and is no crime at law.[my emphasis] Summarized by a standard authority, its attitude was that "both parties to every war are regarded as being in an identical legal position, and consequently as being possessed of equal rights."

This, however, was a departure from the doctrine taught by Grotius, the father of International Law, that there is a distinction between the just and the unjust war, the war of defense and the war of aggression.

International Law is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties or agreements between nations and of accepted customs. But every custom has its origin in some single act, and every agreement has to be initiated by the action of some state. Unless we are prepared to abandon every principle of growth for International Law, we cannot deny that our own day has its right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened International Law. International Law is not capable of development by legislation, for there is no continuously sitting international legislature. Innovations and revisions in International Law are brought about by the action of governments designed to meet a change in circumstances. It grows, as did the Common-law, through decisions reached from time to time in adapting settled principles to meet situations. Hence I am not disturbed by the lack of precedent for the inquiry we propose to conduct. After the shock to civilization of the last World War, however, a marked reversion to the earlier and sounder doctrines of International Law took place. By the time the Nazis came to power it was thoroughly established that launching an aggressive war or the institution of war by treachery was illegal and that the defense of legitimate warfare was no longer available to those who engaged in such an enterprise.[my emphasis] It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal.

The re-establishment of the principle of unjustifiable war is traceable in many steps. One of the most significant is the Briand-Kellogg Pact of 1928, by which Germany, Italy and Japan, in common with ourselves and practically all the nations of the world, renounced war as an instrument of national policy, bound themselves to seek the settlement of disputes only by pacific means, and condemned recourse to war for the solution of international controversies. Unless this Pact altered the legal status of wars of aggression, it has no meaning at all and comes close to being an act of deception.[my emphasis] In 1932, Mr. Stimson, as Secretary of State, gave voice to the American concept of its effect. He said, "War between nations was renounced by the signatories of the Briand-Kellogg Treaty. This means that it has become illegal throughout practically the entire world. It is no longer to be the source and subject of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations revolve. It is an illegal thing.... By that very act, we have made obsolete many legal precedents and have given the legal profession the task of reexamining many of its codes and treatises."

This Pact constitutes only one in a series of acts which have reversed the viewpoint that all war is legal and have brought International Law into harmony with the common sense of mankind, that unjustifiable war is a crime.[my emphasis] Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of 1924 for the Pacific Settlement of International Disputes, signed by the representatives of forty-eight governments, which declared that "a war of aggression constitutes . . . an international crime."[my emphasis] The Eighth Assembly of the League of Nations in 1927, on unanimous resolution of the representatives of forty-eight member nations, including Germany, declared that a war of aggression constitutes an international crime[my emphasis]. At the Sixth Pan-American Conference of 1928, the twenty-one American Republics unanimously adopted a resolution stating that "war of aggression constitutes an international crime against the human species."[my emphasis][...]

Source of quote:

http://www.yale.edu/lawweb/avalon/imt/jack01.htm

It seems to me that there is little if any room, in the face of the conventions and resolutions mentioned by Jackson, for questioning his assertion that international law had developed towards condemning war of aggression as an international crime long before the Nazi government launched its aggressions against other countries.

So the only count that may be considered contestable is Count One, "Conspiracy", which seems to be based on a primarily American legal concept alien to most legal systems of continental Europe and was accordingly questioned, if I remember correctly, by the IMT's European members. None of the defendants seems to have been convicted solely on Count One, however.

As to condition 2), I don't think much can be said against the Charter of the International Military Tribunal, which can be read under

http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm

and the Rules of Procedure, which can be read under

http://www.yale.edu/lawweb/avalon/imt/proc/imtrules.htm

These rules were substantially complied with throughout the trial, for all I know. A demonstration that the trial procedures failed to live up to the principles established in Article 16 of the IMT's charter:

Article 16.
In order to ensure fair trial for the Defendants, the following procedure shall be followed:

(a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial.

(b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him.

(c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands.

(d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.

(e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.

has never been successfully attempted on this forum, as far as I remember.

[David Thompson]

Roberto -- Thanks for another intelligent and thought-provoking post. My purpose in starting this thread was to try and settle a question that had been bothering me ever since I first started visiting the forum. There were a number of contributors who vehemently denounced the IMT proceedings at Nuernberg, and subsequent war crimes proceedings as well. At first, I was completely outraged by what seemed to me to be irrational and perverse beliefs which flew in the face of fundamental principles of justice.

After exchanging a number of posts, I was unsure whether these contributors generally thought that there was no such thing as a war crime, or whether they believed that the perpetrators should never be punished, or whether they believed that, for one reason or another, individual trials or charges were unfair.

In an effort to see whether there was any common ground at all, I started this thread, with its narrowly drawn hypos. So far, I've been gratified to discover that no one has denied that there was such a thing as a war crime, and no one has advocated immunity for the perpetrators. This provides a common basis (however slender it may be) for the discussion of fairness, hypocrisy, and the other issues you raise in your post.

[Scott Smith]

Assuming that the dictator only oppressed his own people, I don't think that another country, acting alone, can righteously put him on trial and punish him.

I agree. However, I think he could only be prosecuted for violating laws valid in his own country at the time. Using the term "dictator" is problematical because it implies that he makes the law unilaterally, so we would have to consider constitutional questions about whether it would be legal for him to simply order someone killed, for example. This might not be illegal for him because there is a difference between murder (which is illegal everywhere) and killing. Bush, Jr. has ordered lots of people killed since he took office, even if we hypocritically choose to call this "collateral damage." And who knows how many "terrorists" he has offed. And Israel has always had an international assassination policy; for example, supergun designer Gerald Bull was assassinated in Belgium in 1990 by the Mossad.

Could a group of nations, acting together, punish a dictator for violating international law in oppressing his own people? This is still pretty controversial. The International Criminal Court seems to think the answer is yes, but not everyone agrees.

Absolutely not. They can, of course, declare war or impose trade sanctions. But my answers above were based on foreigners committing crimes in countries of original jurisdiction, and proper extraditions, where applicable. Extradition is based on international agreements, not some flight-of-fancy called International Law. As I said, I do not favor deporting people for political trials or judicial executions. Now, if a nation were utterly defeated there would be no extradition problem because the Victors would have the prisoners already, so assuming the charges were over criminal laws valid at the time in the country where committed, then it would be appropriate to try them. Whether one can get a fair-trial from a Victor is another story. I don't think so.

But to make-up crimes on the fly for the benefit of Victors and their propaganda against the defeated reveals the moral and intellectual bankrupcy of such political tribunals. Nuremberg set justice back to the Middle Ages. You'd best not lose a war so you must fight ruthlessly to WIN it.

[David Thompson]

Roberto -- You said: "With all due respect, I think the question is wrongly put insofar as the answer depends not so much on whether or not those holding trial also had blood on their hands but on whether or not they

1) charged the defendants with actions that were condemned under international law before they were committed, and

2) abided by procedural rules providing for a fair trial, namely presumption of innocence, the defendants' right to a qualified defense of the defendants' own choice, the right of that defense to produce evidence in favor of the defendant and to challenge the evidence produced against the defendant by the prosecution, and conviction only on account of such actions regarding which a defendant's guilt could be proven beyond a reasonable doubt.

If these conditions are complied with, even a drug lord can hold a valid trial over another drug lord, in my opinion. Such a trial may be considered hypocritical to the extent that the defendant's crimes are identical with such the one holding trial has also committed, but it couldn't be called "bogus victor's justice"."

The implications of this are pretty broad, and I may have misunderstood. You're not saying that if some former Latin American dictator went to visit Sri Lanka to see the sights, that the Ceylonese could righteously arrest him and put him on trial for violations of international law that had nothing to do with Sri Lanka or its citizens, are you?

[David Thompson]

Scott -- You said: "However, I think he could only be prosecuted for violating laws valid in his own country at the time. Using the term "dictator" is problematical because it implies that he makes the law unilaterally, so we would have to consider constitutional questions about whether it would be legal for him to simply order someone killed, for example. This might not be illegal for him because there is a difference between murder (which is illegal everywhere) and killing."

I've never seen a national constitution, or even a law, which expressly permitted a chief of state to have specific persons or a class of persons killed on his order alone, on his country's soil or in another country.

[Scott Smith]

The implications of this are pretty broad, and I may have misunderstood. You're not saying that if some former Latin American dictator went to visit Sri Lanka to see the sights, that the Ceylonese could righteously arrest him and put him on trial for violations of international law that had nothing to do with Sri Lanka or its citizens, are you?

They probably could, with or without trial, but not under International Law, although the local Lankan lawyers might try to justify it propagandistically as a "legal" and not merely "political" matter, and certainly not if his own government could do anything about it.

The United States tried an embargo against Great Britain for impressing merchant seamen; that hurt our own economy more and didn't work besides, so eventually it meant the War of 1812.

Best not to travel to Third World toilets where it is not safe (not that this necessarily applies to Sri Lanka), and that includes American business people who think they have the right to develop the financial markets of the world or save the gorillas.

[Scott Smith]

Scott -- You said: "However, I think he could only be prosecuted for violating laws valid in his own country at the time. Using the term "dictator" is problematical because it implies that he makes the law unilaterally, so we would have to consider constitutional questions about whether it would be legal for him to simply order someone killed, for example. This might not be illegal for him because there is a difference between murder (which is illegal everywhere) and killing."

I've never seen a national constitution, or even a law, which expressly permitted a chief of state to have specific persons or a class of persons killed on his order alone, on his country's soil or in another country.

Maybe not, but executives are given broad privileges, even in constitutional republics, especially in time of war or emergencies. The President has pardoning powers for example and could pardon any assassin. The only recourse in this case would be an impeachment. Best to let spooks handle such things quietly, which is not necessarily to say illegally. A President can make war; he just cannot declare it without an act of Congress. To make war is to kill "broad classes of persons" and also to break things.

[Roberto]

Roberto -- You said: "With all due respect, I think the question is wrongly put insofar as the answer depends not so much on whether or not those holding trial also had blood on their hands but on whether or not they

1) charged the defendants with actions that were condemned under international law before they were committed, and

2) abided by procedural rules providing for a fair trial, namely presumption of innocence, the defendants' right to a qualified defense of the defendants' own choice, the right of that defense to produce evidence in favor of the defendant and to challenge the evidence produced against the defendant by the prosecution, and conviction only on account of such actions regarding which a defendant's guilt could be proven beyond a reasonable doubt.

If these conditions are complied with, even a drug lord can hold a valid trial over another drug lord, in my opinion. Such a trial may be considered hypocritical to the extent that the defendant's crimes are identical with such the one holding trial has also committed, but it couldn't be called "bogus victor's justice"."

The implications of this are pretty broad, and I may have misunderstood. You're not saying that if some former Latin American dictator went to visit Sri Lanka to see the sights, that the Ceylonese could righteously arrest him and put him on trial for violations of international law that had nothing to do with Sri Lanka or its citizens, are you?

That's a question of whether the Ceylonese have jurisdiction over the crimes committed by Mr. Pinochet in his own country, which I presume they have not. Had the fellow killed or tortured citizens of Sri Lanka, on the other hand, the government of that country would be entitled to put him on trial for this, just like the Spanish government is on account of the fact that there were Spanish citizens among Pinochet's victims. And I don't think Pinochet could validly invoke the crimes committed by former Spanish dictator Franco in his defense, even if Franco were still the Spanish head of state.

[Dan]

I've never seen a national constitution, or even a law, which expressly permitted a chief of state to have specific persons or a class of persons killed on his order alone, on his country's soil or in another country.

Didn't we just change our laws to allow this? For years we couldn't officially assasinate foriegn heads of state.

[David Thompson]

Roberto -- Okay, we're on the same sheet of music. I agree with you, as usual.