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Volume 4
September 2008
Number 2
|
Abroad Thoughts from Home
War Crimes Choices Over the summer of 2008, the issue of
prosecutions for war crimes returned to the news for two striking and
sharply contrasted reasons. The first, a complex issue which will
definitely outlive the currency of this article, concerns what appears
to be a movement at the United Nations to persuade or direct the prosecutors
of the International Criminal Court to withdraw the indictments preferred
against the leaders of the Lord's Resistance Army (LRA), the group
which has been engaged in an armed conflict with the government of Uganda
in the northern part of that territory, and to which a horrific array
of crimes has been attributed. The second, which took place on
July 21st, was the arrest - after twelve years of freedom
- of the former Bosnian Serb leader Radovan Karadzic. This man is
largely seen as being ultimately responsible for atrocities such as
the siege of the Bosnian capital of Sarajevo by his army, with the consequent
death of over twelve hundred people, not to mention the infamous massacre
of seven thousand Muslim men and boys in the so called U.N. safe haven
of Srebrenica. This arrest means that only one of the major Bosnian
Serb leaders remains at large - army commander Ratko Mladic, the man
who directed the actual operations on the ground at Srebrenica and otherwise
has much blood on his hands. So Karadzic will - finally -face
justice in The Hague before the specially constituted tribunal for former
Yugoslavia (the International Criminal Tribunal for Former Yugoslavia,
or ICTY - it was while his trial was in progress before this body that
former Serb President Slobodan Milosevic died in his cell). The
tribunal has convicted over thirty individuals - Serbs, Croats, and
Bosnians - since its inception. Most of the defendants, however,
have been Serbs, and the tribunal is seen by significant sectors of
Serb society as fundamentally biased against them, as indeed is the
west at large. The leaders of the LRA will probably not face justice
in the immediate future - or at all, if the movement for their indictment
is to be quashed carries the day at the United Nations. To many, there are aspects of both scenarios
that do not make any apparent sense. First, Karadzic's crimes
took place in the 1990s. It is reasonable to ask not only why
it took so long for him to face his accusers at The Hague, but why it
was that figures such as Milosevic, who after all had been President
of a country, managed to get there before him. Was it just luck?
And of course those familiar with the catalogue of crimes laid at the
door of the LRA will want to know why there should be any question whatever
of quashing their indictments - granting them what amounts to an amnesty
for the disgusting catalogue of crimes for which its members are responsible,
many of them against and/or involving children. Why should there be
any option other than the sternest justice meted out to them? Arguably, the connecting factor between
the two highly contrasting cases lies in the age-old problem of the
separation - or sometimes the lack of it - between law and politics,
between the administration of justice and the expediency of its postponement,
if not outright denial, presumably to some greater end. This article
explores some of the issues arising here. What are War Crimes? There is a common but quite fallacious
assumption that the whole notion of war crimes was the invention of
the victorious allies in the aftermath of the Second World War, and
their first exposition was at the military tribunals at Nuremberg and
Tokyo. The concept is in fact much older than this, and is bound
up with the concept of the law of war itself. For example, In
Henry V, Flewellen exclaims that the murder of the boys left behind
in the English camp while the men fought the battle of Agincourt is
"expressly against the law of war", and we can be sure that the
concept that there were categories of actions which were permissible
and others which were impermissible were established long before Shakespeare's
day. The troubling thing, of course, is that the protection the
law of war sought to give seems to have been available only to those
who one considered equals. During the Protectorate in Britain
(1949-1660), Oliver Cromwell treated the Irish Catholic population of
rebel towns with a severity which he did not always show elsewhere.
The Spanish conquistadores and their spiritual advisors spent much time
in earnest debate as to whether or not the aboriginal inhabitants of
the conquered lands at the new world were in fact human beings or not.
The same ethical issues seem to have been alive and well in the 19th
century United States as Washington consolidated its control over the
western territories, displacing the aboriginal inhabitants in the process. It is therefore entirely possible that
those responsible for Srebrenica did not regard their victims as human
beings existing on the basis of equality with them. The leaders
of the Third Reich spent much time trying to make the same point concerning
Jews, and there is disturbing evidence in several parts of Europe that
the Roma people are also less than well regarded. This excuses
nothing, but it might explain something. One would have hoped,
of course, that the notion that people who have attained a certain degree
of education cannot resort to such theories. Whatever else he
may or may not have been, Karadzic is not a mere thug. He is in
fact a highly educated man. With the example of Nuremberg before
him, one is disposed to wonder how he could have thought that he would
enjoy immunity from actions he must simply have known would be regarded
at least in some quarters as war crimes. The only answer that
occurs to me is that he did not believe he would ever be placed in the
position where he would have to answer for them. Immunity breeds
impunity. If that is so, then the whole notion of immunity -
which arises with the LRA leadership, becomes a question of some difficulty. The term "war crimes" is often used
as an umbrella for a range of offences some of which have standing in
their own right. The most outstanding ones are genocide, aggression,
and crimes against humanity. The framers of the charters for the
military tribunals in Tokyo and Nuremberg had no difficulty in deciding
what they meant by these terms, but contemporary international law has
been somewhat slower to produce comprehensive definitions of the substantive
content of these three categories of behaviour. The first to emerge
in treaty form, not surprisingly, dealt with the crime of genocide,
accomplished through the Convention on the Prevention and Punishment
of the Crime of Genocide of 1948. The catalyst for this measure
is obvious. The Convention defines Genocide to include the following: ...(G)enocide means any of the following
acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental
harm to members of the group; (c) Deliberately inflicting on the
group conditions of life calculated to bring about its physical destruction
in whole or in part; (d) Imposing measures intended to prevent
births within the group; (e) Forcibly transferring children
of the group to another group. The meaning of "genocide" has evolved
over the years: the inclusion of the concept of "cultural genocide"
is only one example. While this is to be welcomed, there have
of course been problems. Karadzic will face charges of genocide
at the ICTY stemming largely from incidents such as the massacre at
Srebrenica. From this we see that the concept has evolved from
the practices of the Third Reich as exemplified by the "Final Solution",
that is, the wholesale destruction of the Jewish people, to include
activities that are less ranging in scope but nonetheless horrific.
But at the same time, we see less than edifying attempts to define certain
situations so as to avoid attaching the genocide label to them.
The situation in Darfur, Sudan, furnishes the most obvious example.
To some it seems simply outrageous to accept that the charge of genocide
can arise out of Srebrenica but not out of what is happening in Darfur. The ICTY and other tribunals such as
those established for Rwanda and Sierra Leone have made significant
progress in extending the notion of what is included as a war crime.
Rape was included in this category, for example. But the most
systemic treatment of the concept came with the discussions for the
Rome Statute which established the International Criminal Court.
These same discussions unfortunately failed to produce agreement on
a definition of the crime of aggression, which is not to say, of course,
that the judges cannot make decisions in individual cases. There
is no doubt that customary international law recognizes the existence
of the crime of aggression. |
In This Issue
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An Amnesty for the LRA Leadership? The possibility of what is to some people
unthinkable - an amnesty for the members of the Lord's Resistance
Army - has arisen because these individuals say that they will not
engage in peace talks with the government of Uganda unless the indictments
against them are lifted and that some guarantee is given that they will
not be reinstated. The tactic of offering to cooperate in exchange
for amnesty has been tried before. Its most recent exponent was
Charles Taylor in Sierra Leone. Taylor was at first successful
and granted an amnesty which allowed him to leave the country and take
up residence elsewhere. Once in his safe haven, however, he resumed
the planning and directing of the civil war in his country. In
other words, his use of the amnesty was an entirely cynical self- interested
one. And yet, the same arguments were advanced when its possibility
was first mooted as are now heard with respect to the LRA - is it
not better to secure peace at whatever cost? The Taylor experience
surely tells us that, at very least, it is important to be sure that
peace is in fact going to result from the granting of an amnesty.
In the case of the LRA leadership, it will make sense only if there
is a cast iron guarantee that these individuals will desist from their
murderous campaign permanently, disarm and disband their forces, and
otherwise cease to be a scourge of Northern Uganda. But even if such guarantee could be obtained
(and one wonders what forms that might take), the question arises as
to whether it should be contemplated at all. What we are talking
about here is immunity from prosecution, the possibility that people
responsible for murder and mayhem on a large scale, including the deliberate
mutilation of innocent civilians and the kidnapping and enslavement
of children, will go free. Any society with a fundamental concept
of justice must be revolted at such a notion. Furthermore, this
argument was certainly made in the case of Charles Taylor, is the granting
of an amnesty not merely some form of incentive to others to engage
in the most bestial acts knowing that this trump card is possibly within
their reach should worse come to worst? Is the international community,
in effect, prepared to institutionalize a tactic which not only flies
in the face of rudimentary concepts of justice, but is also at odds
with the basic tenets of criminal law? Consider this: a Ugandan citizen
is arrested and put on trial for a serious crime - say murder.
The citizen is tried, convicted, and sentenced. Then he learns
that the LRA leadership, guilty of crimes on a scale and magnitude much
more heinous than anything he has done, are off to what might well be
a comfortable life elsewhere as was the case with the former head of
state of his own country Idi Amin. Leaving aside the feelings
of this individual, what would the community at large make of such a
result? My own inclination has for long been
to doubt easy expedience. A tactic may look to be of great utility
on any given day, and possibly the day after, but may result in catastrophe
at a future date. It is arguable that the entire history of Yugoslavia,
from its foundations in the aftermath of the First World War, to its
bloody disintegration (including the loss of the Serbian province of
Kosovo) makes this point all too well. The creation of the Kingdom
of Serbs, Croats and Slovenes, which became Yugoslavia was convenient,
just as the division of the predominantly Muslim parts of India into
East and West Pakistan was expedient. One could go on, but the
point is surely made. These were not solutions, they were expedient
measures for which the bill was going to come sooner or later, and in
both cases, it did. Further examples include the division of the
previously wholly unified country of Vietnam in the Geneva Agreement
of 1954 and even initial western opposition to the concept of Kosovo's
independence following the NATO action there. As I argued in an earlier
article for IZ, outside opponents of statehood for Kosovo simply failed
to take into account the overwhelmingly obvious realpolitik of the situation
there. The Muslim population of the province wasn't interested
in seals of approval for its nationalistic designs by anyone, nor was
it impressed by western insistence that they and the rest of Serbia
would simply be able to kiss and make up. It is my view, therefore,
that notions of amnesty in cases such as the LRA leadership should be
treated with the greatest caution and circumspection, particularly with
a view to assessing what the long term consequences of such decisions
might be. The End of the Road for Karadzic The dissolution of the Federal Republic
of Yugoslavia into its component parts (or even beyond this, for Kosovo
had been an integral part of Serbia for centuries) posed a number of
problems for the leadership of the European Union. Not least of
these was the fact that the impetuosity with which EU foreign ministers
greeted the prospect of the emergence of new states in the aftermath
of the dissolution of the Soviet Union gave heart to those in Bosnia,
Croatia, and Slovenia that independence was at hand rather sooner than
they expected. This is not to say that they caused the bloody
confrontation in the Balkans, but they played a role in creating the
conditions that brought it about. But as in 1918 - 1919, the greatest
challenge was in dealings with Serbia. The dissolution of Yugoslavia
was more or less complete by 2004 when Montenegro opted to sever its
ties with Serbia, and while this appeared to be an amicable divorce,
for the people of Serbia, it must have seemed like yet another mortal
insult, following as it did the NATO bombing campaign which destroyed
so much of the country's infrastructure and, one imagines, traumatized
a large section of its urban population. The scale of the insult
was exceeded only by the ease with which the country was deprived of
the sacred province of Kosovo. While the EU leadership clearly
wanted to extend an olive branch to Belgrade, it had to come with conditions. Foremost among these was the demand that
the principal perpetrators in war crimes and the like be either tried
in Serbia itself (largely accepted as a political impossibility), or
handed over to the ICTY. It was inconceivable that a country could
be considered even as a candidate for EU membership while it openly
harboured those under indictment for war crimes, especially those on
the scale allegedly committed by Milosevic, Karadzic, and Mladic.
No government that subscribes to the fundamental principles upon which
the EU is built would wish to allow such individuals to be at large
within its territory but this posed obvious problems for the Serbian
government. A sizeable sector of the population saw this trio
as Slav heroes, grossly maligned by the west, and accused of crimes
that are simply not being committed. It did of course take some
time for the broader Serb population to come to terms with the fact
that atrocities had taken place, and one thinks here of the extraordinary
video made by what amounted to private armies butchering Muslim men
and boys. After a certain point, it is simply impossible to keep
believing that these are western fakes, though it is probably safe to
assume that some people will never be convinced, just are those who
deny that the holocaust happened (and I'm not thinking here of obvious
enemies of Israel such as the President of Iran). Accordingly, the 2008 presidential election
in Serbia was seen as crucial in terms of the direction in which Serbia
was going to take. Would it offer closer ties with the west despite
what might have been seen as the accumulation of insults and rebuffs
(to put it no more strongly) that had been heaped on it since the dissolution
of the Soviet Union? Or would it opt for Slavic brotherhood and
strengthen its ties with Russia, traditional protector of Slav interests?
The same question, in essence, faced voters in Ukraine and for very
much the same reasons: where does our future lie? As with Ukraine, a majority of Serbians
voted for the candidate that favoured eventual membership of the European
Union (as does President Yushchenko in Ukraine, although it should be
noted that close ties with the EU is also one of the policies of his
predecessor Kuchma, a former communist apparatchik). Serbia is
some way yet from candidacy for membership in the European Union (a
process which, over the last ten years, has become increasingly demanding,
but for very good reasons), but it is clearly on the agenda. There
seems to have been some feeling among at least certain sections of the
electorate that it was time to turn Serbia's back on the past and
embrace its future, something which Croatia, now officially a candidate
for membership, has done (and Slovenia has already done, even entering
the Eurozone in 2007). The arrest of Radovan Karadzic by Serbia's
own forces can be seen as willingness to confront the old and rather
monstrous nationalists that were prepared to simply ignore overwhelming
evidence of the atrocities for which this man is accused, signaling
that wrapping oneself in the flag is no longer going to be enough.
The next step is obviously to track down and hand over Mladic and others
for whom warrants have been issued by the ICTY. This is of course to see the arrest in terms of European politics. But there is another aspect: Srebrenica was the worst atrocity to stain the pages of European history since the end of the Second World War. To some, including myself, it seemed inconceivable that people with whom we thought we shared so many cultural values despite decades of political estrangement could be responsible for something so abominable and unforgivable. This is indeed justice delayed, though not so egregiously as in the case of the leadership of the Khmer Rouge, or indeed the almost geriatric surviving members of those who worked in the service of the Third Reich. Robert Louis Stevenson's short story Dr. Jekyll and Mr. Hyde contains the famous phrase "in the law of God there is no statute of limitations". Nor should there be in the laws of humanity, where war crimes, crimes against humanity, and genocide are concerned. If we accept this as a fundamental principle, then it might help to consider the ethics and advisability of the proposed amnesty for members of the Lord's Resistance Army, and other monstrous organizations yet to emerge and inflict themselves on humanity. |
