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Volume 4

September 2008

Number 2

Abroad Thoughts from Home

with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, UBC
Vancouver, Canada

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

Whose Land Is It?
Gary Beck writes on the disappearing opportunities for the blue-collar workers in America

Father-Brainwasher to Warrior: Literal and Literary Representations of the Chinese American Female
Cameron Conaway writes on a changing sterotype within American culture

Literary Voices
Contributions from an international selection of writers

Somalia Report 2008
Academic and Somalian Citizen Aweis Issa reports on the Situation on the Ground in Somalia

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.

More incisive articles from Ian Townsend-Gault

R2P and Burma: If Not Now, When?

Fixture Postponed: The Iran Stand Down

International commentators


Canada and Arctic sovereignty


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