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This House would prosecute war criminals
This House would prosecute war criminals
This debate can take place in a number of different spheres. At present, former leaders of the Khmer Rouge are being tried in Cambodia, the International Criminal Tribunal for the Former Yugoslavia continues to seek justice, and a small number of World War Two Nazi trials continue to be conducted. Since the establishment of the International Criminal Court in 2002, it has been primarily responsible for prosecutions of war crimes and crimes against humanity. This question will also be relevant to the punishment of North African and Middle Eastern dictators, currently under threat by the Arab Spring.
While the definition of war crime is constantly evolving, the perpetrators of the following are generally considered war criminals: "murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labour camps", "the murder or ill-treatment of prisoners of war", the killing of prisoners, "the wanton destruction of cities, towns and villages, and any devastation not justified by military, or civilian necessity."[i]
[i] Gary D. Solish (2010) The Law of Armed Conflict: International Humanitarian Law in War, Cambridge University Press ISBN 9780521870887 pp. 301-303
|Points For||Points Against|
|War criminals need to be prosecuted in order to provide justice.||The prosecution of war criminals is generally very ineffective.|
|Justice needs to be seen to be done in order to provide a deterrent to others.||Double Standard|
|Prosecution provides closure for the victims of war crimes.||Problems with symbolic justice|
|Trials help bring divisions into the open to help heal them.|
Remember to choose a winning argument!
War criminals need to be prosecuted in order to provide justice.
In the instances of small-scale crime we accept that if a community condemns a person’s action, our sense of justice demands that they be punished. However, it is often the case that those who commit the most heinous crimes at the highest levels of responsibility are not prosecuted because of the complexities of the process. For example Slobodan Milošević the former leader of Serbia’s trial took four years and he died before the verdict was given. According to ICTY Chief Prosecutor Carla Del Ponte “The death of Slobodan Milosevic deprived victims of justice”.[i] As an international community we have repeatedly pledged to prevent war crimes, in recognition of the fact that they are beyond the scope of local courts. When they occur it is a collective failure to protect, so the responsibility to prosecute and make amends falls with the international community. An admission of our inability to prosecute war crime undermines the decades of work we have done to prevent them.
[i] Online NewsHour, 'Milosevic Death Precedes War Crimes Verdict', PBS, 13 March 2006 http://www.pbs.org/newshour/updates/milosevic_03-13-06.html
The very scale of war crimes means that courts are inadequate vehicles for prevention or punishment. To achieve the international community’s goal of “never again” other methods, like sanctions, diplomatic engagement and the appropriate use of military deterrent and intervention must be employed. These pragmatic methods are unquestionably more effective and more likely to achieve long-term change.Improve this
Justice needs to be seen to be done in order to provide a deterrent to others.
An accepted tenet of most justice systems is the achievement of deterrence. Without the prosecution of war crime, its perpetrators have to consider no tangible cost to their actions. This applies to those who claim to have “just followed orders,” who now face a counter-motivation to refuse or defect. In the case of high-level war criminals it becomes effective when they realise they are losing a conflict. If they fear prosecution they are more likely to seek to negotiate rather than going on a final destruction spree. In the final days of the Nazi regime, Himmler stopped committing atrocities and attempted to negotiate peace because he realised his own vulnerability to prosecution.[i]
[i]Allen, Martin, Himmler's Secret War: The Covert Peace Negotiations of Heinrich Himmler.
It is doubtful whether genocide such as this is based on rational calculations. For instance, the diversion of resources into the ‘Final Solution’ was a major reason why Hitler lost the war. In the same way, war criminals are unlikely to be deterred by legal threats such as these; they are driven by a fanatical hatred, not common sense. Furthermore, in wartime situations the immediate threats are so pressing that the hypothetical, long-term prospect of justice won’t affect the actions of lower-ranking officers.Improve this
Prosecution provides closure for the victims of war crimes.
The intention of many crimes of war is to destroy and demoralise individuals and communities. As a result, they often cause on-going harm to victims who cannot feel safe in their communities even after the conflict has ended. For victims, prosecuting war criminals has a vital cathartic function in helping them, to some extent, to come to terms with the crimes committed against them and their families. While full compensation is impossible, both the symbolic realisation of justice and the illustration of real commitment to prevention allows people to rebuild their lives to some extent. Failure to prosecute sends victims a message that the attacks on their freedoms were somehow acceptable.Improve this
Firstly, in many instances the victims of war crime want to move on with their lives. Being forced to testify and therefore relive their suffering can be deeply traumatic. Secondly, for victims to achieve catharsis or receive compensation the prosecution has to be successful, which they rarely are. If a prosecution fails to achieve a conviction, an even worse message is sent to the victims of those crimes.Improve this
Trials help bring divisions into the open to help heal them.
For post-conflict societies to function, the tensions and divisions of the conflict must be brought out into the open and dealt with in order to be fully put to rest. Those most responsible for war crimes must be brought to justice, those involved in the regime but less culpable must have opportunity to make amends and victims must feel that they have been compensated. This allows compromise and the potential for effective governance. The alternative is to allow undiscussed, simmering hatreds and resentments to persist, which undermine growth and create a risk of further conflict.Improve this
After war, the primary need of the affected community is to regain day-to-day functionality, create prosperity and achieve reconciliation. While a Truth and Reconciliation Commission might help to air grievances with positive purpose, trials only serve to rake up old hatreds and prolong social divisions.Improve this
The prosecution of war criminals is generally very ineffective.
The scale of crimes being prosecuted cause very slow trials, and a high likelihood of technical acquittals. International Courts rarely have police forces of effective methods of enforcing rulings. The ICC has never achieved a successful conviction, the ICTY has been criticised for inadequate sentencing[i] and the current trials in Cambodia have become mired in court and national politics, to the point that it is expected that no further Khmer Rouge officials will be tried. Given the improbability of success, the cost and trauma of these trials is unjustifiable.
[i]"Ten years in prison for Miroslav Deronjic". The Hague: Sense Agency. March 30, 2004. Retrieved 8 May 2011. "Judge Schomburg however thinks that the punishment is not proportional to the crime and is not within mandate and spirit of this Tribunal. According to him, the crime to which Deronjic pleaded guilty "deserves a sentence of no less than twenty years of imprisonment". In a brief summary of his dissenting opinion that he read after pronouncing the sentence imposed by the majority, Judge Schomburg criticized the prosecution for having limited Deronjic's responsibility in the indictment to "one day and to the village of Glogova." Secondly, Judge Schomburg adds that the "heinous and long-planned crimes committed by a high-ranking perpetrator do not allow for a sentence of only ten years", which in light of his possible early release could mean that the accused would spend only six years and eight months in prison. At the end of his dissenting opinion, Judge Schomburg quoted a statement by one of Deronjic's victims. The victim said that his guilty plea "can heal the wounds" that the Bosniak community in eastern Bosnia still feels - "provided that he is punished adequately". According to the victim, "a mild punishment would not serve any purpose.""
Proving the commission of crimes on this scale beyond reasonable doubt must take a great deal of time and expertise. The end is so important that the cost must be borne. The successes at Nuremburg and the ICTY convictions prove that it is possible to bring war criminals to justice. While the ICC has had limited success, it is a young institution and is likely to streamline its processes and achieve more convictions in the future.Improve this
While proposition may claim that prosecution of war criminals is a moral imperative, the reality is that geo-political factors determine which prosecutions are taken. For example, all of the ICC’s prosecutions have been against African leaders.[i] Furthermore, although the United States is strongly suspected of war crimes in Iraq and Afghanistan, it is too powerful to be prosecuted. Fair justice should apply equally to everyone. Because it doesn’t, these prosecutions are often seen as Western impositions. This aggravates international tensions and reduces willingness to take any action on war crime in the developing world. For example, the African Union has refused to uphold the ICC’s arrest warrant on Omar Al Bashir.[ii]
[i]Case reports of the ICC http://www.icc-cpi.int/Menus/ICC/Reports+on+activities/
Firstly, more prosecutions take place in developing nations because in recent decades more war crimes have been committed in developing nations. Western nations have been equally committed to prosecutions in the former Yugoslavia, in an increasingly prosperous European region. Secondly, although the refusal of the United States to become a signatory to the ICC is problematic, an inability to prosecute every war crime should not prevent us from prosecuting any.Improve this
Problems with symbolic justice
There is no such thing as symbolic justice. While full justice is an admirable aspiration, its value is undermined by consistent failure. If prosecutions cannot be completed, the international community is seen as toothless. This undermines its deterrent value and trivialises the trauma of victims, who may feel their suffering is subordinate to esoteric legal principle. Furthermore, the prosecution of war criminals could use up political capital, thereby preventing more effective preventative measures, or real commitment to post-conflict rebuilding.Improve this
Justice is always aspirational. International law is a work-in-progress and while there is no question that a lot of work remains to be done, abandoning the effort will cause stagnation. While many failed prosecutions may come before International Courts, as commitment to international law strengthens so will the success-levels of prosecutions.Improve this
Allen, Tim, Trial Justice. The International Criminal Court and the Lord's Resistance Army, Zed Books.
Andrew Clapham 2007 Oxford University Press, A Very Short Introduction to Human Rights.
Foer, Franklin, War Crimes, Slate, Published July 20th 1997, http://www.slate.com/id/1067/ (accessed August 3rd 2011)
Justice of a Kind, The Economist, June 30th 2011, http://www.economist.com/node/18898168 (accessed August 3rd 2011)
William A Schabas, An Introduction to the International Criminal Court (2nd ed.). Cambridge: Cambridge University Press (2004).
Coalition for the International Criminal Court website http://www.iccnow.org/ (accessed August 5th 2011)
Amnesty International’s page on the ICC http://www.amnestyusa.org/our-work/issues/international-justice/international-criminal-court (Accessed August 5th 2011)
The Victims Rights Working Group website http://www.vrwg.org/ (Accessed August 5th 2011)
Investigate Now, Pardon Later, Slate, Published July 24th 2008 http://www.slate.com/id/2195969/ (accessed August 3rd 2011)
Morris, Madeleine, Law and Contemporary Problems: The United States and the International Criminal Court, Vol. 64, Winter 2002 http://www.law.duke.edu/journals/journaltoc?journal=lcp&toc=lcptoc64winter2001.htm
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