Despite their questionable legal basis, The Nuremberg trials have become a point of reference in the prosecution of war criminals, providing the precedent (although not binding) for future efforts in the same direction. Since Nuremberg genocide, atrocities and war crimes have persisted and efforts to address these issues (usually post facto) were customarily under the leadership of the United Nations.
The United Nations, however, being an inter-governmental organisation, respects the sovereignty of its member states. Thus, in essence, with the absence of a sovereign international body to enforce international law, such law is non- binding and in many cases ineffective.
Recent developments have further ridiculed International Law. At present, the global order is dominated by US unilateralism and its gross distaste for international law prescriptions. This unilateralism has been and continues to be justified on the basis of the “war on terrorism”, a war which –if indeed it is one- seems to escape all established rules and norms on “just war” or war in general. Thus, paradoxically, terrorism has given a pretext to the targets of terrorist attacks to completely disregard international law.
This paper examines the theory of war and the norms surrounding warfare within certain “legal” limits. This is followed by a discussion of the Theory of International Law in relation to War Crimes. Subsequently, the paper provides an overview of the Hague Tribunal, followed by an overview and assessment of the International Criminal Court. Having established this background, the paper proceeds with a discussion of the phenomenon of terrorism and its effects on international law.
The distinction made by Medieval scholars between jus ad bellum and jus in bello is an important one to our discussion. Jus ad bellum or “justice of war” requires us to make judgements about aggression, and whether war is right or wrong. The concept of jus in bello or “justice in war”, relates to the rules of war and whether these are violated or not. As expressed by Walzer, “It is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance to the rules” (Walzer, 1980, p.21).
Walzer also addresses the issue of what it is that makes war “wrong”: “Why is it wrong to begin a war? We know the answer all too well. People get killed, and often in large numbers” (Walzer, 1980, p.22). The killing of war is often indiscriminate and might include non-combatants.
However, beyond the obvious reason of the “killings” Walzer explores another reason which makes war wrong, which is that its participants (Soldiers) are often coerced into fighting. Walzer argues that if participation in war is voluntary by all participants then war is not as criminal as it would have been under other circumstances. However, what if a soldier is driven to war as a result of poverty, desperation, or the brainwashing of a nationalist government? Walzer asserts that “the more a soldier fights because he is committed to a ‘common cause’, the more likely we are to regard it as a crime to force him to fight” (Walzer, 1980, p.27). Also, democratic states have established a fine line between coercion and performance of duty as a citizen: “It is the success of coercion that makes war ugly. Democracy is a factor insofar as it increases the legitimacy of the state and then the effectiveness of its coercive power…” (Walzer, 1980, p.35).
Despite of whether the soldiers’ participation in war is voluntary or coerced, there exist certain standards on what soldiers can and cannot do. Walzer provides a term for these standards: “Moral Reality of War”, which are fixed by the opinions of mankind, not by the experiences of soldiers. This might be because “to men at war, the rules often don’t seem relevant to the extremity of their situation” (Walzer, 1980, p.15). This extremity is what Clausewitz had termed “friction”, the environment of war which consists of a realm of suffering, exhaustion, confusion and fear (Howard, 1983).
Realist arguments support this phenomenon, by proposing that because of the special conditions of war, law cannot apply. Historical Relativism also challenges the idea of imposing legal rules on warfare, by arguing that morality changes over time and varies from culture to culture. Walzer is eager to disregard such arguments: “even fundamental social and political transformations within a particular culture may well leave the moral world intact or at least sufficiently whole so that we can still be said to share it with our ancestors. It is rare indeed that we do not share it with our contemporaries…” (Walzer, 1980, p.16).
Relative to our discussion is Clausewitz’s distinction between limited and absolute/ total war. Total war aims at eliminating the opponent’s political independence, and limited war aims simply to obtain favourable terms of peace. Clausewitz also distinguished between the final purpose of war and its intermediate stages. This can be understood as a distinction between ends and means: “One could not understand the nature of war unless one appreciated the dialectic between moral and physical forces. But one could not have a practical theory for the conduct of war unless one understood the relationship between ends and means; in particular, the political end of war and the military means used to attain it” (Howard, 1983, p.34).
To build upon Clausewitz’s Ends and Means argument, I will borrow a quote by Pfaff: “There is not yet an answer to the question of what means are acceptable to the international community, as well as to Western governments and publics, to obtain what ends” (Pfaff, 2000, p.46). There are two schools of thoughts on International Law: first, the Grotian School embraces and supports the concept of International Law, second the Westphalian School points out the importance of state sovereignty and views international law as a threat to that sovereignty.
According to Pfaff, the weakness of international law lies in the absence of an international authority with the power to enforce it; the United Nations do not possess such sovereignty. Therefore, international law is not binding: “Thomas Hobbes and others have since argued that there is no true international law, since there is no sovereign international authority to proclaim or enforce it” (Pfaff, 2000, p.48).
International law is the product of international treaties and conventions. Such conventions have defined “war crimes”, but these “laws on war” have no sovereign authority as law (Pfaff, 2000, p.49). The concept of “war crimes” derives from moral and philosophical theories, as well as of the “common sense” task of limiting the criminal violence of war. The moral basis of prosecuting war crimes is based on ancient Greek notions of justice and rights, on religious and chivalric tradition, as well as on contemporary humanitarian thought.
International law is also based on Natural Law theory, as its proponents argue that there are intrinsic justifications to the existence of international law: “ Despite positivist objections to the existence of natural justice or natural law, ideas of natural law and natural rights have greatly influenced both international law, in its search for philosophical legitimation, and law within states (as in the concepts of equity, the test of ‘reasonableness’ or unreasonableness in common law, the concept of parental rights, and so on).” (Pfaff, 2000, p.50).
a. The Nuremberg Trials
The Nuremberg Tribunal was an ad hoc court created to impose accountability to German and Japanese leaders and officials for their failure to adhere to international law during the Second World War. Nuremberg created the crimes of “Crime Against Peace” and “Crime Against Humanity”. “Crimes Against Peace” involve “the planning, preparation, initiation and waging of aggressive war” (Walzwer, 1980, p.292). These activities were distinguished from planning and preparing of military campaigns and from actual fighting of war (which is not criminal).
Nuremberg limited accountability to top officials and politicians who played such a major role that their refusal to execute orders would have a significant impact and did not include low-ranking officials. At the very least Nuremberg thus pointed the finger to the people on top, showing that office should come with responsibility and ethics.
However, many have criticized Nuremberg, arguing its contribution is limited because it was imposing victor’s justice. According to Falk “Conceived historically, of course, the Nuremberg experience is rather flawed. The indictments and scope were specified according to the dictates of ‘victors’ justice’, which should not be confused with justice” (Falk, 2005, p.9). One might wonder why the atom bombing of Hiroshima and Nagasaki and the bombing of civilians by the allies were not included in Nuremberg’s definition of war crimes. Pfaff argues that despite its legacy, Nuremberg has been forgotten: “The trials of the Nazi criminals are largely forgotten today” (Pfaff, 2000, p.52).
b. The Hague Tribunal
The Hague Tribunal, set up to prosecute war crimes committed in the civil war in the former Yugoslavia, is considered more accomplished than Nuremberg: “”The Hague and Arusha war crimes tribunals have had two major accomplishments: they administer ‘international’ justice and not victors’ justice; and they have established in practice their right to indict and try individuals despite the national character of the crimes and these individuals’ formal subjection to national sovereignties” (Pfaff, 2000, p.56).
Another contribution of Hague is Rule 61 of its Rules of Procedure and Evidence which allows the court to publicize evidence if a suspect does not appear in court. Thus, the court may issue international warrants of arrest and require governments to extradite criminals. Nevertheless, Hague is the product of the United Nations- an institution with no sovereignty in imposing law. Pfaff argues that despite their lack of real authority, tribunals provide precedent and basis for the development of human rights and international law: “The tribunals authority therefore rests on an uncomfortably imprecise combination of common- sense beliefs about right and wrong, the political will of governments, and a body of precedents, treaties and conventions sufficient to convince Western public opinion of the legitimacy of the court’s decisions, but without a real basis in ratified law or a rigorous philosophical foundation. For practical purposes, this no doubt is enough. It partakes something of the quality of a law of the victorious, or of the majority. But it may, by the precedents it establishes, contribute to the construction of an edifice of generally acknowledged law of war and of human rights” (Pfaff, 2000, p.51)
“One man’s terrorist is another man’s freedom fighter”
The above quote is indicative of the difficulty faced by anyone attempting to define “terrorism”, a label with negative connotations, often used interchangeably with “guerrilla”, “freedom fighter”, or “extremist”. How one defines terrorism depends on one’s interests and objectives. In post-September 11 (and post- Patriot Act) USA, for example, a terrorist is anyone the US Attorney- General decides to brand a terrorist. Many have argued that this “definition” is purposely broad to serve the interests of the power-hungry Bush administration and its agenda:
“It’s no longer just to pass measures to protect us from a ‘terrorist threat’. September 11 is now the answer. It is the manna from heaven the right has always prayed for. Want a new weapon’s system? Have to have it! Why? Well…9/11! Want to relax the pollution laws? It’s a must! Why? 9/11! Want to outlaw abortion? Absolutely! Why? 9/11!”. ( Moore, 2003, p. 113).
As noted by Whittaker, “conceptions of terrorism affect the ways in which governments define their interests, and interests also determine reliance on labels or their abandonment when politically convenient” (Whittaker, 2003, p.11).
One reason for the ambivalence of “terrorism” is the changing meaning attached to the term over time. The term was first used during the French Revolution and had positive connotations. The regime de la terreur 1793-94, was an instrument of the revolutionary state. According to Hoffman, “terrorism in its original context was also closely associated with the ideals of virtue and democracy” (Hoffman, 1998, p.15). However, because of Robespierre’s conduct, terrorism became associated with abuse of power by a government. Thus, in the 1930s, “terrorism” was used to describe the practices of totalitarian regimes against their peoples e.g., Hitler’s Third Reich, Mussolini’s Italy, and Joseph Stalin’s Soviet Union.
After the Second World War, terrorism regained its “revolutionary” meaning, referring to ethno-national movements struggling to liberate themselves from colonial rule e.g. Cyprus’ EOKA struggling to expel the British. Because of the international sympathy enjoyed by these movements the term “freedom fighters” emerged. In the 1960s-70s “terrorism” included ethno-national movements outside the anti- colonial framework e.g. PLO, FLQ. In the 1980s terrorism began being regarded as part of a global conspiracy to destabilize the West (particularly due to the perceived rising threat of Islamic Fundamentalism). The 1990s saw the emergence of “narco-terrorism”, where drug trafficking is used to advance the objectives of certain governments and terrorist groups (Hoffman, 1998).
Another way to separate the violence of the state (legitimate) and the violence of terrorists (illegitimate) is to recognize the fact that the state military has to abide by the “rules of war”, whereas terrorists do not accept such restrictions. There have been instances where a state military has broken these rules, but this is termed a “war crime” and the perpetrators are (in theory at least) held accountable for their crimes (Hoffman, 1998).
A terrorist organization will usually have different objectives and use different tactics to achieve these, than a state does. One definition of terrorism offered by Hoffman might give one the impression that a terrorist organization and a state are not that different after all; Hoffman argues that terrorism is political and about power “the pursuit of power, the acquisition of power, and the use of power to achieve political change” and that (in contrast to the impression of indiscriminate violence usually given by terrorist acts), terrorism is a “planned, calculated, and indeed systematic act” (Hoffman, 1998, p.14-15). Governments too are, of course, political entities preoccupied with power.
Where a state and a terrorist organization differ, therefore, are in the tactics they employ and (usually) in the degree of radical change they wish to create. Hoffman offers an alternative definition that encompasses this phenomenon: “the deliberate creation and exploitation of fear through violence or the threat of violence in the pursuit of political change” (Hoffman, 1998, p.43). For the terrorist, exploitation of media coverage is a primary tactic: “Only by spreading the terror and outrage to a much larger audience can the terrorist gain the maximum potential leverage that they need to effect fundamental political change” (Hoffman, 1998, p.132).
Regardless of how one defines terrorism, it is useful to examine external factors- the “breeding ground” of terrorism. As noted by Whittaker, “It is generally agreed that it is important to examine the context within which terrorism and terrorists operate, that is to say, the historical, social, economic, ethnic, and even psychological factors which have some influence on thought, behaviour, and action” (Whittaker, 2003, p.4).
International law is non- binding and therefore its respect depends on the goodwill of the sovereign nations. An example is the creation of the International Criminal Court, the first permanent, treaty- based international court designed to prosecute war crimes.
The failure of the USA and China to ratify the Statute of Rome that established the Court has been interpreted as a failure of efforts to make multilateralism work.
International Law had since its birth been threatened by the concept of state sovereignty, but never more than today. The aggressive unilateralism of the Washington Consensus disregards international law in its dealings. Shunned by the global hegemon, international law is currently in a weaker position than it was in the post- Nuremberg period.
According to Falk, the terrorist attacks of September 11 gave the USA the excuse to disregard international law: “Then came 9/11, and with it rationales and pretexts for a further weakening of normative constraints on the American approach to world order, and an insistence that the rest of the world follow the American lead by joining in all- out war against global terrorism. The nature and severity of the threat posed y transnational megaterrorism was relied upon to move explicitly away from the sort of limits on war associated with international law” (Falk, 2005, p.6).
As the distinction between “war”, “terrorism” and aggression are blurred, the “war on terrorism” attempts to impose on the world the state of “friction” which Clausewitz had associated with war conditions. It is therefore alarming that in such blurred conditions the global hegemon is refusing to accept international rules on the prosecution of war criminals.
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