outsidein

The war crimes trial gimmick

October 27, 2009 @ 12:15 pm | by Bryan

Radovan Karadzic supporters drink and play gusle, a traditional instrument, in a bar in New Belgrade, Serbia, yesterday. Photographs: Amel Emric, Srdjan Ilic/AP.

Former Bosnian Serb leader, Radovan Karadzic, brought proceedings in the Hague to a standstill yesterday. He decided not to attend the opening of his genocide trial, claiming that he was unprepared. Karadzic is representing himself and the trial couldn’t go on without defence counsel. Big anticlimax.

But maybe that’s the problem. These big war crime trials bear a striking resemblance to what I can only imagine medieval public executions looked like. I’m not sure how much they have to do with justice as opposed to public retribution. It’s as though the ‘international community’ needs to demonstrate, as visually as possible, that ‘international justice’ really exists and really works, and that - to quote a former US president who had a way with words - ‘evildoers’ really get their comeuppance in the end. I’m not sure.

I don’t like Karadzic and what he represents. I think the people responsible for acts like Srebrenica make an incredibly strong case for capital punishment. At the very least, they should be tried quickly and if found guilty, locked away somewhere for good. But I also think that the likes of Karadzic, Slobodan Miloševic before him, and Saddam Hussein are right when they say that these genocide trials are gimmicky public spectacles rather than genuine attempts at delivering justice. Were justice the real aim, Karadzic apprehension would not have been the result of a political settlement nor would the massacre of thousands be attributed to just a handful of suitable villains. Also, assuming that justice is blind, the criteria for who counts as a war criminal would be less selective and less dependent on political considerations.

Still, Case No. IT-95-5/18-PT will eventually get underway. If he doesn’t inconveniently die during the process (like Milosevic), Karadzic will almost certainly be found guilty of something serious - crimes against humanity, violations of the laws of war, something. Some will celebrate the decision as a mark of progress. Others will hold their former leader up as a martyr. The news cycle will roll on. But I’m not sure very much substantive justice will have been done.

Maybe this is why the African Union don’t want the International Criminal Court getting involved with the situation in Sudan or Uganda.

17 Comments »

October 27, 2009
12:42 pm

Jeepers Bryan, I don’t know where to start with this post it is so off the mark.
Let us start with Von Clausewitz who stated “war is the continuation of politics by other means”. If you accept that this has more than an element of truth to it, then it follows that international politics are required to defined what constitutes war crimes.
I don’t know how much you know about Morgenthau and the Nuremberg trials but a significant number of the defendants were given prison sentences including Rudolph Hess as the case for capital execution had not been adequately proven. This said I do think that the court that tried Saddam Hussein was a travesty of justice – it was a kangaroo trial and is not fit to be mentioned in the same breath as the work of The Hague.
The Hague and the ICC do not have the power to issue death sentences, just prison sentences. There is a difference between the justice afforded these leaders in the Hague and that afforded their victims. Notwithstanding the nature of the heinous crimes Karadzic presided over, it must be seen to be proven that he ordered the Srebrenica massacres. If this is not proven lesser charges will stand against him.
When the atrocities were taking place in NI we had no political arrangements in place on an all island basis but there was a common understanding of what a terrorist was and what constituted crimes against humanity (the whole question of whether it was a war is a matter of politics). That is why there was extradition and the likes of Dessie Ellis and served time for bomb making.
I visited Oradour sur Glane last summer - maybe read up about if you do not know about it. I have also visited Dachau, Bergen-Belsen and Auschwitz-Birkenau concentration and death camps. Sometimes justice and accountability must not only be done - but be seen to be done.
Nobody forced Karadzic to issue the coda to his soldiers that allowed them to disembowel Muslim women, rape and torture pregnant women let alone commit mass extra-judicial killings.
Chapter VII of the UN Charter defines the rules of international intervention and the grounds on which it is justified.
African despots like those in Sudan, Uganda (Lord’s Resistance Army), the Central African Republic, Liberia and other areas in danger of being cited like Zelawi in Ethopia, Kenya and Zimbabwe among other countries do not want the ICC. This is not because it imposes on their sovereignty but because it may prevent future perpetrators of genocidal acts from evading justice. It also affords all their people (not just their tribe) the same basic rights. But then what on earth is just about that… politically speaking of course.

Comment by robespierre

October 27, 2009
2:54 pm

The reason I mention Oradour sur Glane - a truly haunting place, is that Alsatians that were part of the force that burned the 500 women and children in the church that fateful day in June 1944 were given an extremely controversial and political pardon as “prisoners of conscience”.

These Alsatians may or may not have served in the Waffen-SS against their will but French politicians also wanted them to be seen a French men from part of France rather than German men from a part of France annexed by Germany twice (1870 and 1940).

http://en.wikipedia.org/wiki/Oradour_sur_glane#Aftermath

Comment by robespierre

October 27, 2009
5:15 pm

I agree entirely with robespierre. Karadzic should be manacled, chained and carried into court, if necessary.
As for the AU, this august body contains so many tyrants and crooks including Uncle Bob it is no wonder that it wants nothing to do with the International Criminal Court.

Comment by Brian P O Cinneide

October 28, 2009
2:34 am

I agree with several of robespierre points but I think part of Bryan’s post is implicitly asking: What is the purpose of the Hague trials ?.

If so that is a question which I think requires some reflection. Is retribution the objective of Hague judgements? Is it prevention?. Is the objective to let the hurt and dispossessed be somehow healed? Is it a combination of two or all three of the above?.

I ask this because the answer might give some clearer insights on three matters?

Firstly how should such hearings be conducted?. Should they be public or private hearings? Should the living victims be encouraged to attend or stay away? Should an alleged “criminal” of this nature be allowed to make his own defence?

Secondly if retribution is the objective how can imprisonment be the ultimate punishment for such incredible crimes. I know it is an ” international court” but the death penalty is still practised in several countries. Are we in Hague /Europe asking the entire world to accept that capital punishment is NEVER justifable. Is that part of the reason why the Hague is not everyones fancy. In effect by not being able to sentence someone to death are we minimising their crime in the eyes of those who have lost their husbands , families etc. Retribution requires an eye for an eye. How could this be it? Without the death penalty retributive justice would seem impossible to achieve for crimes of such magnitude. Is this not how many would perceive it? No?

Thirdly who should be on trial? If the purpose is prevention of this happening again maybe the UN should be on trial ! If the purpose is healing maybe the soldier on the ground who carried out the order should be on trial alongside the one who gave that order?

Robespierre may be able to enlighten us but frankly I am never fully satisfied in my head as to the exact objective of the Hague trials? If I was I would be more prepared to agree or disagree with they way they are conducted, who they judge, and what punishments they mete out.

Answers to all my questions above may be somewhere in the back of an ICC manual but is there something wrong then with their information/communication strategy that the ordinary layman like me asks such basic questions.

Patrick

Bangkok

Comment by Patrick Hennessy

October 28, 2009
8:54 am

Karadzic should be allowed to defend himself. If he were to fail, then he should bear whatever consequences prevail.

Lawyers can be picky about what they will say, either because they think it will hurt the case or they fear contempt of court.

The defendant representing himself can say anything he wants; if he gets contempt of court while fighting the death penalty, or the rest of his life in a cell, unable to have sex with women…. he can say what he wants. This is important, because it means things that are ‘disallowed’ can be mentioned, things that may point out a man’s innocence… yet not quite result in a mistrial. For a man facing the above punishments, that is significant.

A man may also be very intelligent and should be given the chance to give an oration, a closing argument, after the prosecution. Putting his case into the hands of a lawyer or multiple lawyers takes away this oppurtuniy and that is unjust.

Comment by James Brennan

October 28, 2009
11:30 am

I was thinking back to the real life character of Amon Goeth in the Schindler’s List film. Had it not been for the war he would have lived one assumes an uneventful life. But because of the “legal” job he had he ended up being hanged by the Russians after the war. Alot people probably have an “Amon” in them if they can be manipulated in the right way

Surely everytime a civilian is targeted during “war” is a war crime? International justice is a farcical concept if one reviews the history of the 20thC and this one

Comment by Liam

October 28, 2009
12:55 pm

The ICC may be Sop in áit na scuaibe, but if we think so, it means we have a new broom in mind. Petty tinkering with justice may seem futile, but to wash our hands, walk away, and do nothing, is worse. And thuggish regimes know that now.

Comment by Des Johnson

October 28, 2009
1:21 pm

robespierre - I acknowledge the need for deterrents, and for people who do horrendous things to be punished, and for that to be seen to happen. I just think that the way in which it is done, the selective and political application of the principles of international justice - I think in the end there is more of an emphasis on the ’seen to be done’ than on the ‘being done’ with the result that not much/enough (not sure which) justice is done all things considered.

Brian - Maybe. But I don’t think you can dispute that the AU holds to a different idea of how things should be done. It may be unpopular, but at the very worst, I don’t think it’s any worse than the ICC approach.

Patrick - Brilliant. I’m not sure if it’s sleep deprivation, too much coffee or just that I’m not nearly as clear a thinker and communicator as you are (I’m sure it’s all three), but your comment covers most of my concerns.

I haven’t read much Foucault, but I wonder what we would discover if we subjected the Karadzic trial to the same sort of analysis that he performed on the prison system or mental institutions?

James - I’m all for him defending himself, provided that is what he actually intends to do. I think he’s smart enough to realise that this is as much a reality TV event (like American Idol) as it is a trial and he is doing his damnedest to put on the performance of his life.

Liam - I wouldn’t go that far. I sympathise with the young man who is abused as a child but I don’t then go and excuse his act of rape. I think the judicial process is important. I think we need ways of forcing each other to behave in ways that maintain the fabric of society. But I also think w need to critically analyse what we currently have and look to improve/rethink things that aren’t working.

Des - agreed.

Comment by Bryan

October 28, 2009
3:09 pm

As a prelude to the unbearable lightness of being Milan Kundera has a brief philosophical excerpt that asks the question whether a massacre in an African kingdom ten thousand years ago matters?

The simple answer is that yes of course it matters. Were this not so, histories and allegories that single out the Assyrians rather than Hittites, Philistines rather than Phoenicians, Persians rather than Greeks and Aztecs rather than Maya’s as destructive, parasitic human movements, would not be so widely available. We may not feel the passing of the innocents as keenly as those that are among us today but those of us with half an imagination can imagine what it must have felt like to have a Viking long ship pulling its way up the Shannon or Boyne intent of wreaking savage havoc.

So does massacre, brutal and most savage matter. Yes it does. People go prison for inhumane treatment of animals so it must matter.

We live in a complex system of states and not all crimes can be dealt with at state level. This means that some orderly means of processing outrages must exist. Under Chapter VII of the UN Charter, it is entitled to intervene to restore peace. This is especially the case where there are war crimes, crimes against humanity (civilians) and/or acts of genocide. Chapter I and Chapter VI outline and affirm the right of a state to defend itself in the event of unprovoked attack but there are limits to what can be done even in a just war.

Dostoevsky wrote of Crime and Punishment. Society does seek retribution on behalf of the victim whether it is in the settlement of a domestic or an international justice. The retribution is adjudged and a sentence capital or otherwise handed down. Of course the ICC / ICJ cannot issue death sentences; it would be against the entire mission and ethos of the UN to do so. The fact that the ICC and the ICJ operate independently does not mean they should be confused with show trials like those of Eichmann, Hussein, Papon, Trouvier, Barbie or closer to home the Birmingham Six and Guildford Four.

Carla del Monti did an incredible job trying complex cases in the Hague to try and ensure some justice for the sieges of Dubrovnik, Split, Srebrenica, Gorajda and Sarajevo received acknowledgement and that the people responsible were, where possible brought to trial for indiscriminate targeting of civilians on confessional and racial (as well as nascent nationality) grounds.

Before anybody asks, I think Israel has a case to answer for the Gaza strip and it would seem pretty straight forward to my eyes but the Security Council must acquiesce to a referral to the ICC or the ICJ. The US is not a member of the ICC and would block any referral to the ICJ. Palestine is also not recognised yet as a full member prejudicing their ability to come under full jurisdiction is obeying the strict letter of the law.

What I would ask those of you who are sceptics is what is better: that an unjust and immoral act by all norms of civilised society should go unpunished or that an international community – however flawed – tries to intervene to decree that acts of outright barbarism are beyond what we can or will tolerate.

Where we can intervene we should whether that is in Burma, Nepal, Croatia, Bosnia, Chile and Nicaragua or in Sub Saharan Africa. You can see the current cases pending against mostly African defendants here: http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/.

You decide whether they should be held to account or should be allowed to run free with impunity like Mugabe. I see only a little difference between Mugabe and Mobuto Sese Seko. If you know anything about the brutality casually inflicted by the Lord’s Resistance Army I would sincerely hope that you found yourself able and willing to hear the voices of their innocent victims.

Comment by robespierre

10.

October 28, 2009
4:53 pm

I agree Brian, I’m not saying he didnt deserve to go to the gallows, more a reflection on the tragedy of a life consumed by the war and the particular way justice was delivered after the war. tbh the von Brauns of the war had very dirty hands, even the DB train drivers played their part. the Allied justice after WW2 stopped where it affected their interests. And thats not even disucssing the Allied war crimes which dont count when they are carried out by the victors.

Comment by Liam

11.

October 28, 2009
5:59 pm

True Bryan but the application of justice (and mercy) is always selective. It was selective when innocent victims in Bosnia Herzegovnia were slaughtered and Karadzic chose the law of the jungle and to apply his intepretation of what was just for Republika Srpska.

It is equally selective once in a court of law. I think that you are confusing show trials with relatively free and fair trials. If you speak of justice being done rather than applied evenly then at what point to do you apply the start of the justice process - apple pie nirvana or in trying to make the best of what we have in a broken world where few victims ever see the perpetrators brought to justice.

Have you read the Gulag Archipelago by Aleksandr Solzhenitsyn or One Day in the Life of Ivan Denisovich. It may change your perspective on bending over backwards to find “quarrel in a straw” as noble Fortinbras could and Hamlet could not.

Comment by robespierre

12.

October 29, 2009
3:58 am

Robespierre,

You say “What I would ask those of you who are sceptics is what is better: that an unjust and immoral act by all norms of civilised society should go unpunished or that an international community – however flawed – tries to intervene to decree that acts of outright barbarism are beyond what we can or will tolerate.”

I agree that however flawed the international community should intervene. But that does not mean we should stop questioning the way the international community does this. I ask questions not because I think intervention by the ICC or other international courts should be stopped, but in order to make that intervention better/ fairer/ more effective.

Your reasoning tends to silence the questions and thus not allow a flawed system become less flawed over time by analysis and constructive criticism. You may even unwittingly be doing a disservice to the system you so ardently defend.

If you read my post above I suggest nowhere that the system of “intervening” by the international community should be abandoned. I ask questions not to destroy this process but to try to make it better.

And I think that it is the import behind Bryans lead comments on this thread.

So given that have you any answers to my earlier questions ?

Patrick

Bangkok

Comment by Patrick Hennessy

13.

October 29, 2009
12:12 pm

Robespierre - What I would ask those of you who are sceptics is what is better: that an unjust and immoral act by all norms of civilised society should go unpunished or that an international community – however flawed – tries to intervene to decree that acts of outright barbarism are beyond what we can or will tolerate.

I would prefer that the international community carry out justice. I just don’t know that there really exists an international community rather than a small grouping of the most powerful masquerading as the former. And isn’t that the source of the selectivity of the application of international justice? But I’ll definitely take your advice and add some of the Great Russian novelists onto my ‘to read’ list (which incidentally you’ve added to enormously! - thank you.).

Liam - exactly. It comes back to the issue of the selective nature of the application of principles of justice, doesn’t it.

Patrick - Again, I agree.

Comment by Bryan

14.

October 29, 2009
1:14 pm

Patrick:

Answers to your first three questions:

a) On your first three questions I think I have already answered these questions at some length but yes it is to try and allow justice which by its very nature means the guilty are punished (your word is retribution). Trying to uphold the Concerts of Europe, Geneva Conventions and UN Declarations and Charters is to prevent future barbarism and to try however hard it can to ensure that the world never forgets an outrage against all societal norms.

b) On some level the Hague Trials like the Truth and Reconciliation forum in South Africa but more pertinently the Arusha hearings in Tanzania (on Rwanda) is accommodate the surviving victims wish to have their experience heard in public.

c) The Hague is designed to accommodate the very special and sensitive circumstances of the Balkan region. I have a number of Croatian, Serbian and Montenegrin friends. I have also read widely of Balkan history. As you can see with the still at large Mladic, the Kosovar affair, the annexing of Montenegro, hosting a trial that could be independent of the political and tribal interests in the former Yugoslavia is simply unrealistic. That is why it was brought to one of the more neutral countries in the world.

Next few questions:
Question 1: I believe like Nuremberg that the trials should be as public as possible. The living victims should be accommodated as with the (fair and opposed to show) Nazi trials facilitated by Wiesenthal’s work. If it not practical for them to attend physically as many poor rural Muslims cannot afford to go to Den Haag, they should have a live feed from the court.

The nature of most but not all justice systems is that the defendant is able to make his own defence. Goering defended himself as did Albert Speer. There are those that will argue that a speech from the dock create martyrs but then is that not what became of a knavish fool like Robert Emmett. I think as both options are available both options should remain.

Question 2: You ask demanding and searching questions here. I am an atheist but I would be more new testament than you based on this question. I do not believe that a democracy is enhanced by 99%+ levels of convictions like in Japan – I believe it is diminished. Extremes in punishment are not a deterrent; the key part of this process is that the leader of the war crimes is brought to book. Cambodia has never found a satisfactory conclusion to the Khmer Rouge debacle because Pol Pot was not made to account for his lunacy. I have no doubt the large parts of the world outside of Europe would like to see capital punishment but I think that this draws a line under the issue too cleanly. These massacres were not clean as long as the convicted perpetrators are kept behind prison bars, the memory of what they did and justice for the lost ones is not buried with a bullet from a firing squad.

Question 3: The UN is a very easy target for people to kick around. It has never been allowed to operate as the San Francisco conference intended because the General Assembly was subverted by the Security Council which is completely anachronistic. The UN was established with seven aims and has only really been given two of them clearly. It has no standing army to intervene peacefully, its jurisdiction is consistently questioned and the Cold War undermined it terribly. For all its faults it does a great many good things and I think realists in our world who have inflicted great damage on the UN like George Kennan, Schlesinger, Kissinger, Khrushchev, Brezhnev, Stalin, Castro, Nixon, Reagan, Bush 1 & 2, Wolfovitz and many others besides (Thatcher and de Gaulle) were the ones more responsible for setting it up to fail than a Perez de Cuelliar or a Dag Hammarskjold.

Many lower level soldiers have already been processed by the Hague tribunal but as you well know if all you get are small fry then the same realist voices that want to shut down the chamber and move on will say that it has failed, that it never got a Milosevic or a Tudjman or a Karadzic. Its work can conclude gracefully after Mladic has been tried but in my opinion not until then.

Incidentally, while the ICC is located in Den Haag it is completely and entirely separate to the FYR trials. They draw on the same law but they have different procedures – the ICC is set-up on the French / Spanish / Italian model rather than the Hague tribunal which a little closer to common law procedures.

On your final point as to the objective of the Hague Tribunals – I think I have answered this point already but there is an emotive aspect to this. Like with Rwanda, Europe allowed procedure and a divided UNSC to prevent it intervening to stop a massacre on our doorstep. Ireland to Wales is a similar distance to Italy to the Dalmatian coastline. In 1971, the Soldiers of Fortune/Destiny pondered Jack Lynch’s cryptic words about “not standing idly by”. One year later we had Bloody Sunday on the Bogside. This is a sore that festers to this day after whitewashes, unsatisfactory tribunals of enquiry and systematic cover-ups. The Dutch government fell over its role in Srebrenica and the EU leaders including Albert Reynolds and John Bruton have blood on their hands as a result of the inaction of the time. I think in part, too late and too little, this is what the trials are there for.

Don’t forget, at Yalta, Stalin, Churchill and Roosevelt all knew about the holocaust but chose to deal with it after the war and continue bombing the factories and cities rather than the train lines that were so crucial to the transportation of Jews. As Chamberlain said of the Czechs “They are a distant people or whom we know little”.

It is this thinking that we must avoid. I agree with you that questions must be asked and all systems must be allowed to reform but I also a more of the interdependency school of International Relations and do believe like Kennedy once said our most basic common thing is that we all inhabit the one planet, we all breath the same air… That is why I believe these trials are not just important but an essential part of the fabric of the DNA of civilisation itself. It is I believe what separate man from beast.

Comment by robespierre

15.

October 30, 2009
12:15 pm

I would prefer that the international community carry out justice.

So do I Bryan so on this we are agreed.
I just don’t know that there really exists an international community rather than a small grouping of the most powerful masquerading as the former.

There is an international community but it is dysfunctional. All communities are as there are competing interests. Although unlike pure issues of wealth justice and power are ephemeral notions that are neither explained by economic or military or civic power alone. Put simply they are not fungible. They are values based and as a result are by necessity slightly elusive.

To the extent that it is all one big conspiracy I profoundly disagree but I am looking through my own eyes rather than SSA eyes so maybe it is preordained for me to think that. The G77 have many problems some of which can be explained by poverty but a lot are also explained by poverty of leadership and of communitarian values as defined by nationhood and a pluralist approach to nationality. We hadn’t a bean for decades and yet we had an independent judiciary. Values that deem it ok for Daniel Arap Moi or Moseveni to corrupt politics or for Zuma to become President are repulsive. Where is the justice here? It may be democratic but is it just?

And isn’t that the source of the selectivity of the application of international justice?

Perhaps but that depends on your interpretation of your previous question.

Comment by robespierre

16.

October 30, 2009
8:08 pm

Robespierre it’s Carla del Ponte not Carla del Monti.

Comment by Frank Jameson

17.

October 31, 2009
3:18 pm

Apologues Frank, you are correct the 22 year old associate working for me at the moment had nothing to do with the tribunal in the Hague. Slip of the mind.

Comment by Robespierre