Past Violations: War Crime Tribunals and Truth Commissions

Spring 2013

CAT

• Article 4• Each State Party shall ensure that all acts of torture

are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

• Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

CAT• Article 5• Each State Party shall take such measures as may be necessary to

establish its jurisdiction over the offences referred to in article 4 in the following cases: – When the offences are committed in any territory under its

jurisdiction or on board a ship or aircraft registered in that State; – When the alleged offender is a national of that State; – When the victim was a national of that State if that State considers it

appropriate. • Each State Party shall likewise take such measures as may be necessary to

establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.

Ways of Dealing with the Past: Revenge?

Revenge, December 1989

Denial?

Let bygones be bygones: Spain

Asking Forgiveness; Dec. 7, 1970

Truth Commissions?

Trials

• Or trials – very rare

General case for trials

• Deterrence (long-term process)

• Rehabilitation

• information gathering – straightening out record – establishing truth

• making responsibility personal

But:

• Might lead to backlashes

• Individuation of guilt is problematic

• credibility loss if not executed swiftly (Rwanda?)

• Or when an odd selection of people is tried (Yugoslavia? –Tudjman died before trial – but others are now all arrested)

• Little is gained for the cause of justice if trials carried out unfairly – fair trials for large numbers is tremendous burden

Eichmann in Jerusalem

• Important also because it was a fair trial

• could be a fair trial because it was the trial of only one person

Bass

• Thesis : If there are trials, it is because liberal-democratic states initiate them – as a reflection of their own commitment to “legalism”

• But when they do, they display a lot of partiality to their own countrymen

After WWI: Leipzig • Treaty of Versailles

provided for trials for German Emperor and alleged German war criminals

• emperor fled to Holland

• Short of occupying Germany, trials had to be left to Germans, who felt cheated by the peace

inauspicious beginning: Leipzig • started in 1921

• Very few tried, all either acquitted or sentenced to light terms: defense of following orders

• Politically, a disaster because it made Allies look vindictive

and created instability in Germany (galvanizing the right)

• Pitted Allies against each other

• Showed that Germany could get away without fulfilling Treaty

Also: Constantinople • attempt was made to try

Turkish war criminals, partly for Armenian genocide

• Ottoman court, created under British pressure

• suspects already in custody, in Malta (about 100)

• civil war broke out; British hostages taken (about 30) – Turkish prisoners freed

Humiliating for the British: Constantinople

• forgetting of those trials was intimately tied to forgetting of Armenian genocide

• Armenians took revenge privately, in “Operation Nemesis:” hunted down offenders to kill them

Nuremberg Trials

• held from 1945 to 1949, at Nuremberg Palace of Justice

• first and best known was Trial of the Major War Criminals before Intern. Military Tribunal (IMT): tried 24 of most important Nazis

• from November 20, 1945 to October 1, 1946

• second set of trials of lesser war criminals included Doctors' Trial and Judges' Trial – 12 of these trials, before American military tribunals

Court and Prison Combined

Differences to Leipzig• country was occupied

• no complications in apprehending suspects, no additional danger for soldiers

• Source of major hesitation: safety of soldiers apprehending suspects (see Yugoslavia)

Trial for Aggression, not Holocaust• Contrary to common

perception, Holocaust played little role in Nuremberg – see Eichmann trial

• goal was to prosecute for crimes of aggression

• Holocaust mattered only insofar as it was connected to war of aggression, not as independent item (although “crimes against humanity” mentioned)

• For Russians it was mostly about propaganda (show trial tradition)

The accused

Accused: Goering, Hess, Ribbentropp, Keitel

One Chief-Prosecutor: Robert Jackson

Why 24?

Tokyo Trials• International tribunals for

Japanese war crimes during World War II conducted in Tokyo, 1946 to 1948

• Twenty-five defendants tried

• Seven sentenced to hang, 16 to life imprisonment and two to lesser terms

• Japan's prime minister from 1941 to 1944, Gen. Hideki Tojo, hanged as war criminal.

Spared: Imperial Family

Doubts about Nuremberg • based on what at the time were disputed legal foundations

• mostly about having waged an aggressive war – and norms against aggressive wars were in their infancy

• Eichmann trial and later Auschwitz and Majdanek trials concerned with Holocaust – motivated to an extent by Nuremberg’s lack of interest

• Russians tried hard to turn proceedings into show trial (sending Stalinist mastermind Vishinsky as advisor) – even charging defendants with atrocities Russians had committed

• Brits and Americans mostly concerned with their own victims (such as massacre during the Battle of the Bulge)

Good justification?• Jackson: “Even by conventional international law it cannot be

denied that the victors could properly impose punishments on the vanquished by political decision. Certainly what they legally could do summarily would not be less valid because they paused to hear the explanations of the accused and to make certain that they punished only the right men and for right reasons. And of course if the opponents of the trial could establish that there was no law which required German statesmen to respect the lives and liberties of other peoples, it follows that no law compelled the Allies to respect the lives or liberties of Germans.” (P 884)

Successful Nonetheless • Practicality: suspects easy

to apprehend, without added risk to troops, without population willing to hide them

• Allies made it priority; contrast to Yugoslavia, Rwanda

• trials could plausibly be seen as part of a project of rehabilitation (unlike what happened after WWI)

• Emerging knowledge about Holocaust added legitimacy

Main Legacy

• symbolic for concern to make justice global concern

• intimately connected to passing of the Universal Declaration, the Genocide convention, etc.

• But one should not forget how peculiar the conditions were

Tokyo – Less of an Impact

• Shock of Hiroshima and Nagasaki

• sense of being singled out for aggression that was not unprecedented

• A trial tradition with little echo in Japan

• Absence of equivalent of Nazi Holocaust (despite horrors such as “Rape of Nanking”)

• American occupation process was losing interest in democratization

After Nuremberg• Efforts to transform this into a permanent structure, but

states could not really agree on how to do that

• only in 1989 was this work resumed

• ICC established by the Rome Statute of the International Criminal Court on 17 July, 1998, when 120 countries taking part in a UN conference adopted the statute

Readings for today

• 1994 article, “Fifteen Truth Commissions”

Truth Commissions• truth commissions before TRC,

including in South Africa – mostly Africa, South America

• Mandates and circumstances varied widely – unusual for case of South Africa: emphasis on reconciliation

• much more common than trials -- but TRC is to truth commissions as Nuremberg is to trials

• alas: success largely due to particular conditions

Truth Commission function at different levels

• personal catharsis/ restoration of dignity

• Moral reconstruction of society

• Basis for new legitimacy

• Factual reconstruction

• Political consequences

Can this be done non-violently?

South Africa: differences to Nuremberg scenario

• No victor’s justice – negotiated transition: victors and perpetrators had to live together

• impossible to focus only on most responsible perp.

• full-fledged investigation into gross human rights violations not doable: too many perpetrators, no suitable justice system

South Africa under Apartheid• blacks stripped of citizenship,

other racial groups included at inferior status

• technically citizens of one of ten tribally based and nominally self-governing bantustans (tribal homelands), four of which nominally independent

• Segregation of public services

• Different racial groups: black, white, colored, Indian/Asian

• Not “separate but equal” – official stance was that there was no single nation (initially)

Pieter Willem Botha (+2006)

• Prime Minister/President – “adapt or die”

• Presided over escalation and small reforms

Frederik Willem de Klerk

• Botha’s successor

• Started negotiations about the country's future

• lifted ban on ANC and released Nelson Mandela

• Later became vice-president in the government of national unity under Mandela

Sharing Peace Prize with Mandela, 1993

TRC: Speedy, Speedy, Speedy• First all-race election: April 1994

• Mandela Inauguration: May 1994

• Promotion of National Unity and Reconciliation Act: November 1995

• Commissioners announced: Dec. 1995 (racially mixed – 1/3 from mental health professions)

• Ready to work (offices opened and 350 staff hired): January 1996

• Most activity between 1996 and 1998

• Report submitted in October 1998

• Dissolved in December 2001

Headed by Desmond Tutu• received Nobel Peace Prize in 80s for

church work towards peaceful change

• importance of Christianity in South

Africa crucial for adoption of TRC

• also important for Tutu’s theology: “ubuntu” – humaneness, caring, community

• importance of Mandela and Tutu for process cannot be overestimated – one reason why model may not apply elsewhere is that such “role models” are missing

Three Committees

• Committee on Human Rights Violations (name indicates the centrality of human rights language for this process – constitution also is committed to the realization of human rights)

• Committee on Amnesty

• Committee on Reparations and Rehabilitation

Enormous Scope• 140 hearings in 61 towns, often focused on particular institutions, key

events, thematic issues

• 22,000 victim statement documenting 37,000 gross human rights violations

• 2,000 people appeared in public hearings

• 7,000 applications for amnesty (most denied – fewer than 1,000 granted)

• Most expensive truth commission ever (compare case of Chad, where the commission basically collapsed when their two vehicles were stolen)

• In spite of difficulties and concerns, considered enormous success

Amnesty• Amnesty could be granted for full disclosure, by

application

• Not if transgressions were motivated by personal gain

• But also means: amnesty possible (and granted) precisely for “hate-crimes”

• No remorse, apology required

• Most requests for amnesty denied; of those denied, some were sent to prison, others were not prosecuted

• Many decisions very controversial

Reparations

• Bitter point: reparations granted, but government cannot afford to pay them – only token payments have been made

• Voice of a victim (Graybill, p 154): “It is easy

for Mandela and Tutu to forgive … They lead vindicated lives. In my life nothing, not a single thing, has changed since my son was burnt by barbarians.”