State Involvement in War Crimes Trials

10 April 2013

State Involvement in War Crimes

Professor Sir Geoffrey Nice

International war crimes courts deal only with the responsibility of individuals for crimes they committed. In order avoid over-simplification of understanding what may have happened by the necessary concentration on individual criminal responsibility, it is vital not to overlook collective and state criminal responsibility; but state responsibility can only be dealt formally with at a different court, the International Court of Justice.  Has this allowed states to escape attention that should have been paid to their responsibility – as states – for conflicts, a responsibility different in kind from the responsibility of their leaders? 

All war crimes trials rely on cooperation with states, often the very ones which were involved in the relevant war, for production of valuable documents from state archives and to facilitate access to witnesses. States will be obligated by membership of the UN to cooperate while at the same time wanting or needing to obscure information that would make public the involvement of the state in the commission of crimes and mass atrocities.

What does the evidence in the Milošević’s trial and in other ICTY trials tell us about the responsibility of states, and not just of the states involved in conflicts?  What does it tell us about the vulnerability of trials such as Milošević’s to state interests that may run counter to open, forensic exploration of complex histories? 

The theme for this lecture started with the tension that can exist within a state between the state’s desire to hide criminal responsibility of its own and its duty as a member of the UN to provide evidence against individuals, whether its own or another’s nationals, who are to be tried at international criminal courts.  The tension is between provision by a state of evidence that might be damning to itself and the state serving the interests of international justice.

However, considering the role of states in the aftermath of conflict led me to this rather different puzzle, crystallised by those who speak of the Iraq invasion coupling it to the possibility of commission of war crimes and the names of one American President and one UK Prime Minister – just a couple of names; puzzling because open government and any form of cabinet government involves collective responsibility.  Of course it is easier to have a single villain to attack and sometimes with real dictatorships it is appropriate to pursue one leader because he really did exercise solitary control.  But – usually – the leader’s apparent decisions will have been made by a collective, or endorsed by a collective, or – at a very minimum – not resisted by a collective of other politicians and military leaders.  The tension here is between individual politicians and a state or government about who should stand up to be indicted.

For both questions, especially the second, it may be pertinent to ask what is more likely to deter wrongful war or bad conduct in war in the future: having a single leader in some conflict under examination or prosecution picked out for punishment afterthe event and allowed to assume, by publicity and popular opprobrium, allresponsibility?   Or having the leader’s cabinet colleagues understand when they make the decision to go to war or to press on with war or not to resist war –that they may all be pursued for collective responsibility if they have made the wrong decision?  To ask the question is to provide some, at least, of the answer even if to answer that all government ministers in such cases should be held to account could freeze or clog much governmental decision making.

And of course ‘state’ and ‘government’ are very different things that should not be equated too readily.

One way and another it is on differences between individualcriminal responsibility and other responsibility - state / government - that I will focus.

Lawyers have detailed definitions of what is a state and what generally is state liability.  Here area few pointers to how they think.

Academic commentary states that “formerly states alone used to be the subjects of international law...international responsibility now also involves consideration of the position of individuals and of international organisations.”[1] Thomas Franck states that this change in international responsibility “is a change from the historic notion that it is the state, and only the state, which is responsible for the unlawful acts of its citizens, even for the unauthorized acts of its officials.”[2]

Franck points to the analysis in Oppenheim’s ‘International Law’ (Ninth Edition) which asserts “a state’s responsibility for the acts of a private person is not vicarious responsibility stricto sensu. The state is in international law not legally responsible for the act itself, but for its own failure to comply with obligations incumbent upon it in relation to the acts of the private person: those acts are the occasion for the state’s responsibility for its own wrongful acts, not the basis of its responsibility.”[3]

Michael Walzer comments on the ambiguity of responsibility in a modern state by stating that “Even in a perfect democracy … it cannot be said that every citizen is the author of every state policy, though every one of them can rightly be called to account.”[4]

Franck’s commentary notes the importance of holding states responsible by stating that:

“In the age of mass communications and expanding democratisation, it is very unlikely that the people of a state in which genocide is taking place, or whose leaders are perpetrating genocide elsewhere, are unaware, or do not have the means to become aware, of what is being done – or failing to be done - in their name. It is both fair and morally right that a polis which could and should have resisted, but did not, should share collectively some of the consequences of the state’s failure to live up to its legal and moral responsibility.”[5]

“Since, however, such crimes have costs, restitution must be made. The wrongs cannot be justly redressed solely by imprisoning individuals, but only by also finding the resources necessary to rebuild shattered lives, homes, schools, churches, factories and libraries: costs that should not be allowed to rest solely on the victims and survivors of the crime. Determining state responsibility is thus the first, large step towards creating the possibility of a just, peaceful future between former victims and victimizers.  Surely, it is both a good and moral policy that puts all citizens on notice that they cannot escape responsibility for the crimes committed by those acting in their name. This may even encourage them to summon the courage to bring their government’s unlawful activity to a halt. They should, in any event, be aware that their society’s tolerance of, or complicity in, illegal and harmful conduct cannot be expiated by the punishment of a few leaders.Justice demands a fair sharing of the costs of reconstituting that which was destroyed.”[6]

Commentary from Volker Hüls makes similar arguments on the advantages of holding states responsible by stating that:

“Holding a state responsible for a crime has certain advantages, as pointed out for the Congo situation. First of all, any acts of aggression or human rights atrocities on a large scale cannot simply be attributed to individuals, especially when they have been organised and directed through a command structure. Then, due to immunity, and political considerations, it is mostly impossible to hold individual trials of state officials still in power. Consequently, all post World War Two tribunals have only dealt with former state officials. Thirdly, in a post conflict situation only a state can come up with the amount of financial compensation required to cover the damage to infrastructure and the economy.”[7]

Interesting though these concepts are and indicative though they are of why our international systems have been constructed as they have been, the people who really matter - the citizen in the street whether victim, perpetrator or bystander of war crimes or even an off-duty lawyer - may have a ready understanding of the difference between an individual and a state and maybe between each of these and a government. S/he will increasingly understand that there are among individuals – probably – some truly evil people while in many other individuals who commit war crimes the hand of government will have operated invisibly but irresistibly to lead them to do what they did.  And s/he may not be that interested in allowing legal definitions to affect what might seem obvious solutions to present problems.

In one century we have moved from a position where judicial trials of war crimes were considered almost inconceivable to a position where they are taken for granted and expected, but - for the time being – only on the basis of ‘individual criminal responsibility’ – by which is meant individuals can be tried for what they did; states not.  There is a limited mechanism for state accountability for some criminal acts but essentially it is only individuals who may stand accused of crime in war before a criminal court. How appropriate is that? How did that come about?

We may look back over two unimaginably violent World Wars to citizens living at the end of the 19th and start of the 20th centuries with a brutalized eye and assume that they somehow accepted the terrible violence that was to come. Nevertheless let us go back a hundred years or so to trace steps to where we are.

How were wars conducted?  Like many others I have reviewed the index of Von Clausewittz’s authoritative (so it is said) volume ‘On War’.[8]  Written at the start of the 19th Century but said to have continuing relevance to the conduct of war there is no reference that I could find in the index to any topic connected to modern concepts of post-conflict judicial accountability.  Indeed the only topic in the index that I could find of conceivable relevance were six cold references to the use of taking prisoners not to the way of dealing with them once they were imprisoned; treatment of prisoner was later to become a starting point in the development of International Humanitarian Law.  Until then there was an understanding that wars could be fought with single minded purpose regardless of the well being of prisoners.

The 19th century saw the development of new ideas on the conduct of war and positive change.

The Lieber Code of 1863 regulated conduct in the American Civil War and based on that other countries developed similar codes. 

The first Geneva Convention of 1864 dealt with:

immunity from capture and destruction of all establishments for the treatment of wounded and sick soldiers;

impartial reception and treatment of all combatants; 

the protection of civilians providing aid to the wounded; and 

the recognition of the Red Cross symbol as a means of identifying persons and equipment covered by the agreement.

This led to the first unequivocal proposal for creation a permanent international court was in 1872, when Gustave Moynier of Switzerland, one of the founders of the International Committee of the Red Cross, suggested the creation of such a court to address violations of the 1864 Geneva Convention in the Franco-Prussian War of 1870-71.[9]

The Hague Peace Conferences of 1899 and 1907, which imposed obligations and duties on states, came at the very end of the century while a real war crimes trial took place following the 1902 Treaty of Vereeningen that concluded the Boer War.

In fact at the beginning of the 20th Century there was a considerable peace movement – hard though that may be to believe. Planned, but at the time hypothetical, interventions in war and the conduct of war were sometimes seen as ways to end war altogetherbut if not, then as ways to achieve the more modest aims of deterring some wars and ensuring better conduct in others.  That idealistic hope may have disappeared under battle fields of blood but deterrence was and remains a principle objective of all judicial and other interventions in wars.

For a reason to which I will return it is interesting to become acquainted – in outline inevitably – with what debate there was then for what is fashionable to discuss now.

Before, during and immediately after WWI trying and punishing the Kaiser and some other Germans was high on the agenda of British politicians and voters.  Its attraction came and went - with the public as well as with politicians - according to events.  But the core idea of trying the German Head of State and punishing or executing him was a top topic; ‘Hang the Kaiser’ featured strongly in the rhetoric of Lloyd George’s campaign in the British election of 1918

The Kaiser’s initiation of war against Belgium led to many demands that he be brought to justice.  As, for example this from the Dean of Peterborough Cathedral – Reverend Arnold Page – to the Times on 16 September 1914 expressing in general terms what many then felt:

We may be far still from the abolition of war, but we should not be far from the end of atrocities in war if those responsible for them in whatever rank had the risk before their eyes that they might have to suffer just penalties as common felons’.[10]

Nobel Peace prize winner Baron d'Estournelles de Constant de Rebecque, an extraordinarily gifted and knowledgeable man, devoted himself to working for peace and arbitration. His long-range solution for European problems was a political one - the formation of a European union. With others he formed a ‘groupe d’arbitrage’ lobbying for judicial treatment of international conflicts, in place of the traditional instruments of war and was influential in establishing the second Hague Conference’ and the Court of Arbitration[11] He argued that trials having the appearance of victor’s justice should be avoided and favoured establishing a high court to provide a high court to provide impartial judgment of individual crimes against international law arguing that in this way war would not prove fruitless but would advance the cause of peace and justice.[12]

One particularly significant feature of the Hague conferences in which Baron d’Estournelles was influential was the participation of Japan and other extra-European powers creating a new ‘concert of nations’ with interests in a new internationalism (universal participation of states based on the principle of equality) and pacifism (disarmament and the pacific settlement of international disputes through due process of law instead of war). The formula negotiated at the Conference – disarmament and ‘arbitration’ – has, as the history and work of the League of Nations and the United Nations since reveal, remained a viable option for a safer future.[13]

Reflecting this worldwide approach, in 1915 Theodore Woolsley, influential former Professor of International Law At Yale had the temerity to suggest that offenders be turned over to neutral hands to be tried by an international court agreed to in treaty form.

Into WWI the debate about war and international affairs, in public and among parliamentarians and government, had much else deal with.  From the use of submarines sinking merchant and passenger ships including the Lusitania, identified by all sides as a war crime, to the development of the League of Nations with so much hope pinned on it.

In the end politics got in front of international justice, if only by a short head.  The US president started to doubt, or to say he doubted, whether the Kaiser really was the originator of the war and the Kaiser’s sanctuary in The Netherlands just held.  Only 6 of the12 men tried in Leipzig for war crimes were convicted. Attempts to try war criminals more generally became an embarrassing failure. The Turks did not have to face international jurists over the massacres in Armenia.

Throughout, there was an acceptance of individual criminal responsibility that accorded with the conduct of past eventsover the centuries of any remotely similar kind that might now be called war crimes trials – individuals not states had been held to blame and made to pay the price.

It would be sensible to acknowledge that in the planning or even the contemplation of any war crimes trial, even to think of states as opposed to individuals being held to account would have been more than enough to frighten the political leaderships’ horses.

The World was, for a time, more concerned with the new world order that the League of Nations would usher in and then it had to be concerned with Nazi Germany.

And we should be neither surprised nor downhearted about this.  As Cherif Bassiouni, one of today’s leading international law scholars suggests

The International Criminal Justice System will not likely occur as a result  of planning and sound legal techniques but rather it will develop as a result of non-orderly processes in which fortuitous events and practical exigencies will incrementally enhance the goals intended to be attained.’[14]

And perhaps it has done and is doing just that.  If so its processes should not be thought of as the exclusive preserve of lawyers and politicians.

The Permanent Court of International Justice created by the League of Nations (and the Permanent Court of Arbitration)  had no criminal jurisdiction and expired in the 1930s as rising tension made such a largely optional court redundant.

So the - arguably odd - idea of individual criminal responsibility for what happens in war had been brought to life by many developments - but was not yet really kicking.

After WWII  it could be said that although ‘.historically, international law was concerned only with actions of states, while the individuals through whom states acted remained almost entirely outside its purview…. the driving ideas behind the Nuremberg and Tokyo trials was that of establishing individual criminal responsibility for grievous atrocities and mass violations of human rights….. before international courts, if municipal judicial systems were unwilling or unable to prosecute the offenders.’[15]

The Charter of Nuremberg Article 6 thus provided a Tribunal …for the trial and punishment of the major war criminals of the European Axis countries… to have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed crimes against peace, war crimes, crimes against humanity[16]

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

In the Tokyo trials the defence challenged the indictment, arguing that crimes against peace, conspiracy and aggressive war, had yet to be established as crimes in international law.  The defence insisted that there was no basis in international law for holding individuals responsible for acts of state, as the Tokyo trial proposed to do. [17]

The outcome was imperfect with plenty of evidence of political influence in who should or who not be tried (including the Emperor)  One highly respected judge who gave one of many dissenting opinions Justice B. V. A. Röling (Netherlands) observed "It is well-nigh impossible to define the concept of initiating or waging a war of aggression both accurately and comprehensively" and that  "I think that not only should there have been neutrals in the court, but there should have been Japanese also." He argued that they would always have been a minority and therefore would not have been able to sway the balance of the trial. However, "they could have convincingly argued issues of government policy which were unfamiliar to the Allied justices". He was pointing out the difficulties and limitations in holding individuals responsible for an act of state and in making omission of responsibility a crime.[18]

Having a judge of the same country as a party to a case sitting as a member of a multi-judge court is practice at the ICJ (where 15 judges sit).  It has never been tried with international criminal courts.  Perhaps it should have been.  A Serbian judge sitting as a fourth or fifth member of a trial court where a Serb was on trial would have provided a fascinating balance from many points of view.  If the judge always sided with the defendant he would probably be disregarded by observers. But if s/he was true to a judicial oath and decided on the evidence, even against her/his own countryman how much stronger and impregnable would have been the judgment of the court?

The International Court of Justice came into being and its jurisdiction, somewhat broader than that of its predecessors, is to decide, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies authorized to make such a request (advisory jurisdiction).

However, criminality has come before it – or alleged criminality - on a few occasions, most famously or notoriously in the Nicaragua case - Nicaragua v. United States- in which Nicaragua was able to challenge the United States for recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua and for violating charter and treaty obligations under various treaties[19]  The allegations went further asserting coercion and intimidation of the Government of Nicaragua, using force and the threat of force against Nicaragua, killing wounding and kidnapping citizens of Nicaragua. The US was said to be under a duty to cease and desist immediately from al1 use of force - whether direct or indirect, overt or covert - against Nicaragua, and from al1 threats of force against Nicaragua and the US was said to have an obligation to pay Nicaragua reparations.

The US challenged jurisdiction of the court and, when it lost, declined to involve itself further save to block in the Security Council what might have followed by way of reparations to Nicaragua if the court’s decision favourable to Nicaragua had been respected.

The ICJ’s ruling dealt with the responsibility of the United States for violations of international humanitarian law by the ‘Contras’, “envisaging a two-fold paradigm of state responsibility for acts not committed by its de jure (legalorgans).”  The first test looked to a State’s control and “deals with the control a state exercises over the entire functioning of a group, and its fulfillment for all intents and purposes equates de facto controlled groups with state organs.”  The second test stipulated in the decision looked to effective control and “deals with the state’s control over the conduct of a specific operation in the course of which violations have been committed, when the conditions of the first test are not met.”  Commentary on the ICJ’s two test notes that “[b]oth tests undoubtedly have an exceptionally high evidentiary threshold, but they seem to have been accepted by all of the judges in the case.”[20]

The high  threshold was apparent again in the ICJ’s 26 February 2007 ruling on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide(Bosnia and Herzegovina v. Serbia and Montenegro) the court found that Serbia had not committed genocide that Serbia had not conspired to commit genocide, nor incited the commission of genocide, that Serbia had not been complicit in genocide but that Serbia had violated the obligation to prevent genocide, all under the Convention on the Prevention and Punishment of the Crime of Genocide, and in respect of the genocide that occurred in Srebrenica in July 1995.[21]

In an academic review of this case it is suggested that “while clarifying state accountability, the decision has raised fundamental questions regarding the proliferation of tribunals in international law, and the extent to which states now have affirmative obligations to prevent genocide. … For the first time in legal history, and of the four genocide cases that have come before the ICJ,[22] the Court unequivocally held in Bosnian Genocide that, rather than simply having to punish individual perpetrators, states can be found responsible for genocide.  Ultimately, however, the Court found that Serbia had not committed genocide since it was not conclusively proved that it had the requisite specific intent.”[23]

The review goes on to comment on the impact of the decision by stating: “The end result of the Bosnian Genocide case is that for the first time genocide is a crime for which states should be held responsible.  But the Court did not stop there, further determining that ‘the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide.’ Thus, the ICJ has taken one step forward in holding states accountable for genocide. In the final analysis, however, the ICJ took another step back in setting the evidentiary bar impossibly high to prove state intent. The core difficulty remains: ‘The [Genocide] Convention definition of genocide requires proof of specific intent. It is hard to conceive of a state with specific intent.’ Without evidence proving that a state’s leaders possessed the specific intent at the crucial time, it is impossible to prove genocide. This intent requirement is what defeated Bosnia’s Article IX claim that Serbia had committed genocide.”[24]

If it is important for Bosnia to have recorded for its history that a state – Serbia - committed genocide against Bosnia then there is no apparatus other than the ICJ where that can be properly recorded as a finding of law.  Bosnia should seek revision of the decision, and smartly – although the indications are they will never find the political will.

Nobody, I reckon, would want to dilute the power to hold individuals to account for their part in crimes committed in war.  But is there something odd about the developed difficulties of holding states to account?   What would the non lawyer non politician citizen say? Would s/he want and expect there to be a mechanism where Serbia could be judged for genocide in Bosnia, Russia for crimes in Chechnya, UK – not just the PM - for Iraq?

Before we come to that, there could – of course, be another way to establishing what may looklike state responsibility – the Nuremberg route.  Although you try people only for individual criminal responsibility, by ‘bagging’ the leadership – as it might be a cabinet or a President and his Secretaries of State - you effectively establish state responsibility for crimes. At Nuremberg as many as available of the Nazi government leadership machine were on trial. The non-lawyer citizen might readily equate government criminal responsibility to state responsibility and state responsibility means, in a way, that every citizen is responsible through the state for what may have been done in their name.  Who here not German by nationality has not heard other non-Germans speak of the entire German race as characterised by the atrocities of the second world war?  Who here, not German by birth, may have found herself / himself speaking such nonsense?  We may all know that what happened in Germany was caused by events that conspired in a way that could have drawn any or many of us into following the Nazi leadership yet, perhaps because of the Nuremberg process, we treat the state and its citizens as irremediably marked by the crimes found proved against the government leaders.

Might the same process be used or have been used to assist Bosnia in whatever purposes may be served by setting the record straight?  Might a trial of the Serbian ‘government’ have done the trick?

Well yes and no.   Individual criminal responsibility courts such as the ICTY and ICTR have regularly enough pursued leaderships just as was done in Nuremberg.  Indeed in Rwanda two cases were known by shorthand as the ‘Government1 ‘and ‘Government 2’ cases.  But two problems arise.   First, you may simply not be able to ‘bag’ into the dock enough of the leadership in the way achieved in the dock of Nuremberg to make it look as though the government is on trial.  Second, in all cases where as many as possible of government members have been tried it has been on specific evidence attributable to individuals that guilt or innocence has been pronounced.  There has not been any example of a government member being convicted on basis of mere failure to act in circumstances where he might be expected to shoulder collective responsibility.  We have not yet reached the stage where the person sitting at the cabinet table may be liable to account for doing nothing when, by seeking or accepting the office held, he should have done something different

In the Bosnia setting there was another very particular difficulty, as a recent and highly controversial ICTY Appeals Chamber judgment revealed. It was the case Momčilo Perišićwho was Chief of Staff of the VJ (‘Serbian’, ‘Federal Republic of Yugoslavia’, or ‘FRY’ Army) at a time when the prosecution argued that Serbia / FRY was supporting the Bosnian Serbs in their genocide of the Bosnian Muslims, notably at Srebrenica.

The Appeals Chamber observed that the VRS (Bosnian Serb Army) was independent from the VJ and that the two armies were based in separate geographic regions. In addition Perišićwas not physically present when relevant criminal acts were planned or committed. In these circumstances an explicit analysis of specific direction would have been required to establish guilt.  The Appeals Chamber noted that previous judgements of the court had not provided extensive analysis of what evidence may prove specific direction.  However, the Appeals Chamber recalled that specific direction involves finding a link between an accused aider and abettor and crimes committed by principal perpetrators. The Appeals Chamber considered that the types of evidence required to establish such a link will depend on the facts of a case. However, in most situations, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators. The Appeals Chamber underscored that the parameters of its inquiry were limited and focused solely on factors related to Perišić’s individual criminal liability for the VRS Crimes in Sarajevo and Srebrenica, not the potential liability of States or other entities over which the Tribunal has no pertinent jurisdiction.

The judgment went on to explain that long-standing jurisprudence of the Tribunal affirms that specific direction is an analytically distinct element of actus reus. Perišićserved as the most senior officer of the VJ during the relevant period, and was responsible for ensuring combat readiness and organisation of VJ operations. Perišićwas subordinated to the President of the Federal Republic of Yugoslavia, and ultimate authority on defence policy and operational priorities for the VJ rested with the SDC (Supreme Defence Council). While SDC meetings were attended by many individuals, including Perišić, final SDC decisions were taken by political leaders: the President of the Federal Republic of Yugoslavia and the Presidents of the Republics of Serbia and Montenegro. The decision to provide VJ assistance to the VRS was adopted by the SDC before Mr. Perišićwas appointed Chief of the VJ General Staff, and the SDC continued to support this policy during Mr. Perišić’s tenure in this position. Mr. Perišićregularly attended and actively participated in meetings of the SDC, and he was delegated the legal authority by the SDC to administer assistance to the VRS. However, the SDC retained the power to review both particular requests for assistance and the general policy of providing aid to the VRS.

Perišić, to the astonishment of many, was acquitted by the Appeals Chamber of all convictions recorded against him by the Trial Chamber.  The test for ‘aiding and abetting’ crime has seemingly been raised high.  Some are saying that the beneficiary of this ruling – apart from Perišićhimself and Serbia – are the military around the world who may be able more easily to rely on superior orders in defence of what they did in support of actions in war that are criminal.

The Kosovo case of Milutinovićet alat the Yugoslav Tribunal provides another example of the same difficulty.  Milan Milutinovićwas the President of Serbia throughout 1998 and 1999 when Serbia attempted suppression of its internal province of Kosovo, as it was at the time, by criminal means. Much of the evidence brought by the Prosecution and his Defence concerned the nature and extent of Milutinović’s powers as president. The Judgement explains how Milutinovićdid not have direct individual control over the VJ, a federal institution.  His formal role in relation to the VJ was as a member of the Supreme Defence Council, or SDC, which comprised FRY President Slobodan Milošević, along with the Presidents of Serbia and Montenegro, and which made strategic decisions with respect to the VJ. The evidence did not indicate, however, that Milutinovićtook part in the exercise of command over the VJ after 23 March 1999. The Chamber also found that, in practice, it was Milošević, sometimes termed the “Supreme Commander”, who exercised actual command authority over the VJ during the NATO campaign.

The Chamber found that, as the President of Serbia, Milutinovićhad powers that potentially could allow for significant oversight of the work of the Serbian Government Ministries, most importantly the Ministry of Interior. But the evidence did not establish extensive interaction between Milutinovićand the Police (MUP) in the relevant period, and his de facto powers over the MUP were not significant. He issued several decrees during the state of emergency that came into force on 23 March 1999. However, for the reasons set out in detail in the Judgement, the Chamber was unable to draw any inferences adverse to him from the evidence surrounding these decrees.

On the other hand, The Chamber also finds that Šainovićwas very well informed about events in Kosovo, both in 1998 and 1999, and that he was aware that criminal acts had been committed by VJ and MUP forces in Kosovo both in 1998 and 1999, including during the NATO air strikes. Šainovićfailed to use his extensive authority in Kosovo, and his own initiative, to ensure the cessation of such criminal conduct.  Šainovićwas convicted.

This was effectively the government or regional government dealing Kosovo.  Both decisions show how difficult it is to prosecute ‘governments’.  The test of individual criminal responsibility will always be what has to be met, however curious that may sometimes seem – especially if you were a victim of either of these criminal campaigns and you were to hear high officers of government escaping liability on the bases outlined.

STOCK TAKING

Since I started these lectures much has happened in the world of international war crimes tribunal and I should highlight a few of those before going on to what I offer as topics to consider when looking at individual or state or government responsibility for war crimes. 

The ICC has started on a new regime under a new Prosecutor – African by birth.

Kenya has gone through its elections with two presidential candidates due to face trial at the ICC on the basis of individual criminal responsibility for what happened at the last elections.  These latest elections have been almost completely peaceful. It appears now that Uhuru Kenyatta, sworn in yesterday as President, will stand trial while being a serving president.  A lot could change but were that to happen it would be a considerable and surprising development.  It would advance the idea that state organs and state leaders – and thus the state itself – can not be free from contemporaneous accountability.

The Prosecutor at the ICC acknowledged that it had insufficient evidence against the President’s co-accused (not the other presidential candidate) and is willing for him to be discharged.  Bad news for the ICC in a way but good news if it shows a genuinely open mind on issues of sufficiency of evidence that may be explored even after defendants have been charged.  These cases are always difficult properly to assess and an open mind in The Hague could be thought a good thing

 Sudan’s president has flown to various other African countries despite being charged at the ICC with genocide.  Various advances have been made in Sudan’s overall situation, both regarding the dispute over the border territory with South Sudan and respecting its relationship with opposition parties. 

In the Libya situation the court is in the throes of extracting itself from the arguably unfortunate position it got itself into by indicting Saif Gaddafi and others early in the general interest of regime change.  It might have been better to wait – at least for the court.  For Saif Gaddafi and now for the former Defence minister Al Senussi the position may be different.  Although they are each being denied basic human rights in detention and the ICC is at risk of being seen to be impotent (for the time being) both of them are still alive and the court may rule soon that Libya has to hand over one or both of these men.  For Libya to refuse to hand them over might be a price too large to pay if it is to regain the continuing support of its big name visitors like our own prime minister.  Once transferred to The Hague these men will be free of the risk of capital punishment. 

Along the way the African Court has got involved and has made orders that Libya should indeed respect the detainees basic human rights:  this is not unhelpful not because it suggests the ICC will cede power to regional courts (although always a possibility, perhaps for the future) but because it shows a potential integration of the work of different international bodies not, thus far, skewed in their objectives by political considerations.

Marlise Simons summarised the present position well in the International Herald Tribune last week having been able to speak to judges as well as to several lawyers.

‘The USA has been changing its approach to international war crimes tribunals and manifesting enthusiasm. An African warlord, Gen. Bosco Ntaganda, gave himself up in March to the U.S. Embassy in Rwanda and asked to be sent to the International Criminal Court. U.S. diplomats publicised the episode and swiftly brokered the transfer. Court officials were elated. “It was important that Washington was so upfront about cooperating,” one official said on the condition of anonymity because he was not an authorized spokesman. “It was a great boost for the court.”  Today Washington is expected to further bolster the decade-old court, an institution that it initially tried to sink and still has no intention of joining. As part of its Rewards for Justice program, the State Department plans to pay up to $5 million for information leading to the arrests of fugitives in atrocity cases. It will issue a list of names that for the first time will include some of the court’s most-wanted fugitives, Stephen J. Rapp, the United States ambassador for global criminal justice, said in an interview. The names will be broadcast on radio and appear on reward posters printed in the languages of the fugitives’ countries, he said. “The offer of rewards for I.C.C. fugitives will be the biggest step we’ve taken toward engagement and support” for the court, he said. Under United States law, no money can be paid directly to the court. But a law adopted by Congress in January allows for payments to third parties for crucial information leading to fugitive arrests. Similar payments were offered to track down fugitives from the courts investigating atrocities in Rwanda and the former Yugoslavia. “We have paid 14 rewards in the last three years,” from $75,000 to $2 million, Mr. Rapp said. Washington can also help the court in more discreet, indirect ways, by, for example, protecting crucial witnesses, sharing DNA data and providing forensic assistance, he said, declining to give details. As the court has become better known and its approval rating has risen in American public opinion polls, the United States has replaced its outright hostility with a measure of cooperation. Harold H. Koh, the State Department’s legal adviser, speaking last November in the Netherlands, made a strong impact on his audience, including lawyers and diplomats, when he called the court “an important forum” for advancing United States national security and humanitarian interests. Global criminal justice “can help increase stability and thus decrease the need for more costly military interventions in the future,” he said. Florian Jessberger, who teaches international criminal justice at the University of Hamburg, described the I.C.C. as a global court that is “somewhere between a court of justice and politics,” adding, “If the U.S. got involved without even being a member, it is to extend its influence for political reasons.” Courtenay Griffiths, the defence lawyer for former President Charles Taylor of Liberia, called the United States’ shift in attitude toward the court a sea change. “To use the court as an adjunct to soft power makes sense for the U.S.,” he said. “It’s cost-effective. If you can remove a warlord through the court, it’s a lot cheaper and more acceptable than using force.” “The U.S. wants to be at the table when the I.C.C. doesn’t touch on issues of vital interest to it,” said Philippe Sands, author of “Lawless World,” who teaches international law at University College in London. “I suspect the U.S. position would change direction rather quickly if issues of vital interest began to be investigated.” He offered as possible examples investigations of Israel, Afghanistan and the treatment of prisoners during the United States-led war on terrorism. Others see the growing cooperation with the court as a way for the United States to regain the moral standing they contend it lost as a result of the war in Iraq and the scandals surrounding water-boarding and other harsh treatment of prisoners. “It deflects attention from the past American violations of international law and their own judicial anomalies like torture and disappearances,” said Antoine Bernard, a director of the International Federation for Human Rights, a group with members in more than 160 countries.’[25]

In light of the topic of this lecture and the USA’s history in WWI debates and at Nuremberg and at the creation of the ICC of opposition to any process that might expose the USA itself to assessment by others, it is interesting to hear what the engaging and moderate Ambassador Rapp still says. Warning that terms under which entire peoples, ethnic groups or political movements are responsible for a crime should never be included at war crimes tribunals he stressed that in prosecuting war crimes it was always about individualising guilt. In war crimes it is about individual responsibility and those individuals should be held to account under the law and based on evidence, and if someone is convicted, it is a signal to the rest of the community that it is not about the community but about the individual. 

I doubt if the USA is really ready to change that much or to allow itself or its citizens to face war crimes courts.

CONCLUSIONS

As between trials of individuals and states the tension about production of evidence and witnesses and even accused are obvious (and to some extent dealt with in earlier lectures).  As long as the tension exists there will be a real need to strengthen the rules within these international systems that will compel states to comply with their duties to courts even at risk of exposing themselves.

As to the second question on which I have dwelt, differences between prosecuting individuals and prosecuting states are considerable. Trials of states face enormous problems if conducted at the ICJ. Trying states in the form of governments, to the extent one can, is also immensely problematic – as the two cases fro Yugoslavia to which I have referred make clear. The responsibility of individuals must not be diluted and the difficulty of trying them (evidence difficulties caused by any individual-state tension apart) are capable of being dealt with as the recent 20 years of trials around the world has shown.  But are such trials worth the cost?

However successful the ICC and other tribunals may be or become as crime and punishment courts their contribution to international society will be as limited as are domestic crime and punishment systems: in each case some criminal will be punished, some potential future offenders maybe deterred - but crime will not be stopped.

Which brings me back to the public debate at the time of WWI.

The sometimes idealistic dreams that led to 19th and 20th century reforms must surely have seemed further from reality then than similar dreams should seem today.  The hope to endwar and the desire to see international courts to try war crimes may each have seemed unimaginably Utopian; at least once the axe had fallen on the sapling statutes and tribunals that might have tried thee Kaiser or the Turks.

How surprised would those dreamers be – were time travel possible – to have seen first the clean but loaded form of victor’s justice at Nuremberg followed by the steps toward definition of previously undefined crimes – crimes against humanity and then genocide – and the establishment of a world court (ICJ) for treaty breaches and, later, an international criminal court (ICC) for international crimes?

If we able to generate similar optimistic positivism where would that lead us.  Not, I think, to throwing all our eggs into a retributive justice system, however good the ICC may yet turn out to be.

The distinctions between individual criminal responsibility and state criminal responsibility and even government criminal responsibility are so significant that we need – regularly – to think again about what Utopia we should be aiming at given our present starting point that includes knowledge of the way individual citizens get caught up in criminal wartime behaviour and an awareness that we have weapons capable of destroying us all.

It is no longer a justifiable indulgence to decline to look at the motivating factors of war crimes in favour of continuing crime and punishment systems that give some form of satisfaction and allow the world to continue as it has always done.

And do not leave it to lawyers and judges.

Accountability for what goes wrong in war has to be accountability in order to learn, not necessarily to punish.  And if accountability by maximum information becomes an irresistible norm then future governments inclined to wrong doing – future dictators inclined to wrong doing – may think twice.  Not because they would fear a life sentence in a comfortable prison but because they would know they would be unmasked in whatever wrongful steps they were inclined to take.  Bolstered by the ability to try and punish the worst offenders it should never have been possible for the true history of events leading up to Srebrenica to be hidden – as they are even now – in the interests of participating states and  the international community (that has things it wishes not to be known).  When Iraq happened we the citizens should not have had to wait to know how and why it happened through drawn out processes where individuals and governments protest their right to hold information back.  In all ways what we need as the next step is access to information and in some way that, I believe, will be part of the next idealism.  It may fail now.  Even if it does, as with the idealism of the late 19th century, it may come back to serve a purpose

We prepare to say farewell to Nelson Mandela and are saying goodbye to Margaret Thatcher, each having left immense marks in the world.  Which mark will be the greater?  To have created systems for individual advancement through encouragement of the individuals’ willingness to join in and benefit from competitive societies or to have allowed a country to advance through a mechanism – the Truth Commission – that looked back on terrible wrongs to see how they happened but not to punish the wrongdoers. 

With due thanks to Haydee Dijkstal, for her assistance in research for this lecture

© Professor Sir Geoffrey Nice 2013

[1]T. Franck, State Responsibility in the era of Individual Criminal Culpability, (2006) p. 13.
[2]T. Franck, State Responsibility in the era of Individual Criminal Culpability, (2006) p. 13.
[3]T. Franck, State Responsibility in the era of Individual Criminal Culpability, (2006) p. 20, citing Oppenheim’s International Law, Ninth Edition. 1992.
[4]M. Walzer, Just and Unjust Wars, 2nded. (1992) 298-99.  
[5]T. Franck, State Responsibility in the era of Individual Criminal Culpability, (2006) p. 22-23.
[6]T. Franck, State Responsibility in the era of Individual Criminal Culpability, (2006) p. 26.
[7]V. Hüls, State Responsibility for Crimes under International Law: Filling the Justice Gap in the Congo, p. 12.
[8]C. von Clausewittz, On War: A Modern Military Classic, London: N. Trübner, (1873).
[9]Later than the date of the supposedly first international criminal tribunal established in 1474 for the trial of Von Hasenbach.  On these topics generally see Professor William Schabas’s W. Schabas, An Introduction to the International Criminal Court, Cambridge University Press, (2007). Looking back academics can find ever earlier events than Von Hasenbach’s trial that may count as war crimes trials, even going back to ancient Greece. Cherif Bassiouni argues that there is evidence of a tribunal holding the individuals responsible for war crimes in Greece in 405 BC.4 as does Professor Schabas Even if there were such trials their motivation was unlikely to be as it may be today and apart from individual war crimes trials that stand out as isolated events and the modern processes are of recent invention.  I have dealt in earlier lectures with the essential and almost necessarily political nature of all war crimes trials.
[10]J. Willis, Prologue to Nuremberg: the politics and diplomacy of punishing war criminals of the First World War. Westport, CT: Greenwood Press, 1982, p. 11
[11]having in the same year ‘prevailed on President Roosevelt to submit to the Court a minor pecuniary dispute between the United States and Mexico Conclusion, thus establishing a powerful precedent for use of such a court
[12]Baron d'Estournelles de Constant de Rebecque, Le Temps, 15 May 1915, p. 1; See also, J. Willis, Prologue to Nuremberg: the politics and diplomacy of punishing war criminals of the First World War. Westport, CT: Greenwood Press, 1982, p. 14
[13]K. Schlichtmann, Japan, Germany and the Idea of the Hague Peace Conferences,  Journal of Peace Research, Vol. 40, No. 4, (Jul., 2003), pp. 377-394Japan, Germany and the Idea of the Hague Peace Conferences
[14]M Cherif Bassiouni Introduction to International Criminal Law
[15]M. Milanovic, State Responsibility for Genocide, (2006), p. 574. http://ejil.oxfordjournals.org/content/17/3/553.full.pdfp 554
[16]See my first lecture of the 2102/2013 year, or his recent book Unimaginable Atrocities, for Professor Schabas’s analysis of the arguably cynical reasoning behind the qualified definition of Crimes against humanity, as‘in execution of or in connection with any crime within the jurisdiction of the Tribunal……..’
[17]The defence attacked the notion of negative criminality, by which the defendants were to be tried for failing to prevent breaches of law and war crimes by others, as likewise having no basis in international law. The defence also argued that Allied Powers' violations of international law, including the atomic bombings of Japan, should be examined.
[18]See generally, Röling, B. V. A.; Rüter, C. F. (1977). The Tokyo Judgment: The International Military Tribunal for the Far East (I.M.T.F.E), 29 April 1946-12 November 19481. Amsterdam: APA-University Press
[19] - Article 2 (4) of the United Nations Charter ;
- Articles 18 and 20 of the Charter of the Organization of American States ;
- Article 8 of the Convention on Rights and Duties of States ;
- Article 1, Third. of the Convention concerning the Duties and Rights of States in the Event of Civil Strife.
[20]M. Milanovic, State Responsibility for Genocide, (2006), p. 577.
[21]The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (2007) Judgment, ICJ General List No. 91.
[22]Trial of Pakistani Prisoners of War (Pakistan v. India) 1973 I.C.J. Rep. 328 (Dec. 15, 1973); Bosnian Genocide; Legality of the Use of Force Case (Yugoslavia v. United Kingdom) 1999 I.C.J. 124, 132 (June 2, 1999); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Yugoslavia) 2002 I.C.J. Order 118 (Nov. 19, 2002).
[23]S. Shackelford, Holding States Accountable for the Ultimate Human Right Abuse: A Review of the International Court of Justice’s Bosnian Genocide Case, p. 21-22.
[24]Holding States Accountable for the Ultimate Human Right Abuse: A Review of the International Court of Justice’s Bosnian Genocide Case, Scott Shackelford
http://www.wcl.american.edu/hrbrief/14/3shackelford.pdf
[25]Marlise Simons International Herald Tribune April 2013