Before fully understanding the whole mechanism of punishing war crimes, its better to comprehend what are war crimes first, especially in contrast to domestic crimes most people are familiar with. War crimes firstly are more deliberate, and of a larger scale than individual domestic crimes. They cannot be directly analyzed as cause and effect phenomena, and cannot be easily solved through constructive treatment. Rather, they stir up strong emotions among their victims and the fellow men of the victims, leading them to vengeful thoughts.
Deliberately planned crimes such as these are often outcomes of complex events. These acts are more of a group thing, yet the individual aspect of it cannot be discounted since an individual’s life experience do influenced such. But the point is, these international crimes are evident products of a social process, not individual experiences (Taft, 1946). War crimes would be discussed in depth as the paper goes deeper. This paper is all about the punishment of war crimes and Americans role in it, as instigator or as the prosecutor.
The paper would seek to show what roles the US played throughout the history of war crimes punishments, from its emergence to the now much institutionalized International Criminal Court processes. International law, over the centuries expanded and become highly institutionalized to include policies on the behaviors of states in times of war, particularly armed conflicts, especially those of the authorized military personnel.
The resulting cruelties brought upon by warfare was deemed imperative to be limited, and the best way to go about this was to place legal constraints on the people directly behind such activities, from common soldiers to the highest political as well as military leaders. Effectiveness of such is yet needed to be ascertained because there is still no established accessibility of enforcement mechanisms vital to such ambitious endeavor.
That is to say, since the primary enforcement of such law is to prosecute suspected war criminals in the national criminal justice systems, success of such would now lie on the ability and the readiness of the prosecuting state to capture the war criminals or ‘enemies’ and arraign their own soldiers for war crimes (Bullock, 1995). War crimes law emerged at the end of the First World War, when commentators began to call for justice.
A multinational commission to inquire into the war’s causes and consequences was advocated by Lloyd George, a British Prime Minister who was seeking to set a new culture to replace aggressive warfare. Through this commission, Germany and Austria-Hungary was determined to be the ones primarily responsible for the war. Bulgaria and Turkey were held accountable as well for supporting the two states and they were all prosecuted to be using illegitimate methods of warfare.
Thirty two types of offenses were categorized as war crimes on this period, including murder, torture, rape and detention of civilians in callous conditions. The creation of an international tribunal to try these criminal states, encompassing the heads of state was recommended by the Commission (Meron, 2006). The United States, rejected most of these conclusions held. For them, there was no point for the Commission to concern itself with these violations against laws of humanity since they are vague laws, and so trials held for these violations would actually be illegal.
The Americans protested the creation of the tribunals. But despite all these, a treaty was formulated to address the individual responsibility of a head of state for instigating crimes that breach the peace, the Treaty of Versailles. But sadly, it came out all wrong. Instead of articulating legal offense, a moral one was given. The implication of this is that although the Kaiser of Germany was prosecuted, he is still immune from grave liability, as with the way it is for moral offenses under international law at that time.
Specifically, he was just granted asylum and his extradition was denied. It was proposed that Germany conduct the trials of these alleged criminals in its national courts where the German Supreme Court was given the jurisdiction to do so. These alleged criminals included prominent military and public officials that Germans refused to try because political instability could be caused. Allies were generally afraid of what unrest in Germany could lead to that they allowed it its request for national trial and reduced the list of alleged criminals.
Since the general of the Supreme Court retained its discretion to choose what case to pursue, only 12 military officers out of the original 895 alleged criminals were brought into trial and only 6 were convicted with only lenient punishments imposed (Meron, 2006). Hence, even if international humanitarian law saw considerable development at this period, where nations started to embrace concepts of crimes against humanity and the responsibility of those in command, and start rejecting the concept of immunity most head of state took advantage of, enforcement mechanism is clearly insufficient.
National tribunals were proved inadequate, so no clear justice was served on this time and no widespread punishment of war crimes was sustained. States paid for this insufficiency when World War II took place, Germany being the perpetrator again (Meron, 2006). The need for enhanced institutionalization led to the creation of international tribunals, which are normally the outcomes of changes that ensued after particular conflicts, in this case the end of WWII. The Nuremburg and Tokyo tribunals showed some promise.
The Nuremburg trials had a major premise, one that was widely accepted. Those who led their nations into the venturing of aggressive wars were to be held criminally liable as individuals. Aggression therefore started to be treated as a legal wrong. These are quite controversial because it’s the first time senior officials were held criminally liable as individuals and not just for incurring a mere political wrong either. This is particularly rewarding because extradition is not applied to political offenses.
The Tokyo Tribunal, like the Nuremburg tribunal disqualified as well state immunity and superior defenses as defenses for their actions (Meron, 2006). Crimes such as war crimes, crimes against humanity and genocide were added, which reflects the growing humanization of humanitarian law to an ad hoc international criminal tribunal created on former Yugoslavia, for the purpose of punishing committers of war crimes comes in, plus the extension of the use of this tribunal to the Rwandan civil war (Bullock, 1995).
Established by the UN Security Council and funded by regular UN budget, the International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal of Rwanda were deemed to be the first international criminal courts. Unlike during the ones in WWI, the prosecutions were focused on the abuses committed to the civilians and civilian populations, not merely on the violations of the law in the conduct of hostilities.
ICTY and ICTR both explicitly include rape as a crime against humanity, and the tribunals have successfully prosecuted various forms of sexual violence used as instruments for genocide, war crimes and generally crimes against humanity (Meron, 2006). The Security Council Resolution adopting the ICTY Statute required all UN members to adhere to the ICTY orders, even those for the production of evidence. This of course is not feasible as not all governments would be willing to cooperate especially if there are serious repercussions like reprisals looming once they cooperate.
Some did help disseminate the much needed information but of course ensuring first that their identities to be kept secret, a conflict with the defendant’s right to challenge the evidence against it. The tribunal reflected its weakness on its dependence on the assistance of states. National-political considerations impact the effectiveness of these tribunals as well, as evidenced by what happened with the ICTR, and its attempted investigations of the alleged crimes of the Tutsi, in which the support of the government of Rwanda for the tribunal waned.
It is apparent therefore that these tribunals experienced difficulties in gathering evidences and reveal that these bodies, even though much better than the Commission set up on the WWI, still lack muscle within the International Community (Meron, 2006). The tribunals were a breakthrough, as they all demonstrated the evidence that international investigations and prosecutions of the responsible people are possible (Meron, 1998). They are also groundbreaking in the sense that they clarified what constitutes as crimes against humanity.
It narrows down the very broad definition given to crimes against humanity, which originally do not require it having a connection with any conflict at all. But, with these tribunals, crimes against humanity are restricted to those crimes committed in either internal or international armed conflict. The tribunal contended that the crimes must involve a course of conduct and not just one act particularly Nonetheless, if that one act is inexorably linked to the systematic attack against a civil population, the act could be considered as a crime against humanity, and the person who committed that would be guilty of such crime.
And although crimes against humanity have a collective nature and could only be committed by the states or the individuals exercising their state power, the tribunal established forces that have de facto control over a defined territory, even if they are not the legitimate government like terrorist groups or organizations could be held accountable. General principles of criminal law is clearly expound upon (Meron, 2006). The United States participated fully on these tribunals.
The US had enacted legislation to implement the two treaties of these tribunals, agreeing to surrender suspects involved in the atrocities in the former Yugoslavia and genocide in Rwanda. Along with France, Germany and other states, they modified their domestic law in accordance with the Security Council Resolution directing the surrender of fugitives prosecuted with grave crimes against the international humanitarian law.
The United States had signed surrender agreements for both the Yugoslav and Rwandan Tribunal on October 1994 and January 1995 respectively, enabling a type of surrender in only one direction, from that of the US to the Tribunals. In detail, the US agreed to surrender any person found in its territory that the Tribunal has charged with or found guilty of violations within the competence of the Tribunals as defined in their statutes. Of course, the US just do not surrender anyone and whenever the Tribunals wanted. The Tribunals must supplant it with sufficient information and evidence on the person.
The tribunals must also provide a copy of the arrest warrants. The United States is given much leeway for its policies, for example, although the statues do not require the tribunals to request transit and for states to authorize such, the US holds a different position because the Tribunals recognize the state’s support as beneficial, in this case, the US is often a point of transit for international flights. The US shoulder all costs when deemed appropriate since the statutes were silent on this matter. If not, other arrangements could be made.
Nevertheless, even if US participated, it still had to reconcile these processes with its own mechanisms. The US courts have held that the determination by the US of whether to extradite a fugitive is governed by a number of constitutional principles, after all to surrender to the tribunals the fugitives without their consent involves still a deprivation of liberty that implicate their rights (Kushen, 1996) The US implementation scheme was intended to serve as an example for the international community, especially the stated of the former Yugoslavia and Rwanda.
It could be observed that the US had pattern a lot its agreement to the tribunals to its bilateral extradition process for starters, that it could process surrender requests rather smoothly. It even retained the strict limitations imposed by the bilateral extradition practice on the ability of the prosecuted to broaden the scope of an extradition proceeding, that it could not obtain a full trial on the merits prior to surrender, litigate a tribunal’s motivation for the prosecution and complain of the situation he will be subjected to.
Further considerations for these things would be quite onerous and pointless (Kushen, 1996) These Post-WWII tribunals were criticized to be just an exercise in victors’ justice, wherein the losers are tried by the winners and for the benefit of these winners as well. (Meron, 2006). Following World War II, the idea of punishing those who were responsible for the acts of the Nazis became popular. Yet, subsequent trials of these alleged war criminals reflected the problem of assessing the responsibility of an individual in relation to an act that was obviously organizational in nature.
These acts may be imputable to the state or the organization but collective criminal punishment cannot be enforced because it is over inclusive, in which individuals who could justify their actions won’t be given the chance to do so. The notion of collective guilt is quite impossible because there could be distinguished varying degrees of responsibility. Though they may be associated together, it would be unjust to extract the same payment from all of them.
Therefore, to preserve the notion of war criminality, particular criminals should be duly found and punished (Taft, 1946). The war trials stand on two principles. First, officials or governments will be judged according to their behavior and disallowed to justify their actions through claims of just following orders of their superiors. And second, direct evidence of participation in the criminal acts is necessary to be labeled a war criminal. Both knowledge and actual responsibility is therefore needed to be established for the members of the organizations in question.
Allocation of responsibility becomes a complex process majorly because of this (Taft, 1946). Atrocities still continue despite all these tribunals, mostly in the form of severe genocide. Still, their establishments cannot be contended as complete waste of effort just for the fact that they were not able to completely deter further atrocities from being committed. After all, one would not know what could have happened if there were no system of punishment in place.
In fact, the better understanding of the humanitarian law and human rights could be attributed to these tribunals. Their creation gives off at least some deterrence atmosphere to future violations and gave a new lease of life to the international humanitarian law (Meron, 1998). The idea of an international criminal court took root immediately after the end of the Second World War, but formal agreement to its establishment did not take place until the Rome Conference in 1999, not without the debate on certain political and legal considerations.
The international tribunals, with its ad hoc characteristic plus other rigid limitations could not do enough to totally diminish the occurrence of serious crimes, but the rules and procedures of each of the tribunals had now transformed to the vital core of an international code of criminal procedure which influenced the rules of the international criminal court (Kirsch, 2001). The international criminal court was set up for the objective of doing what the tribunals are insufficient to do.
That is, to enforce accountability for such crimes in order to totally erode this type of setting and probably bring about peace, which the states had not experienced for quite a long time, and of one that is lasting. This desire took so long to transform into reality because of the Cold War, wherein the whole world literally split into two. But with its end, increased cooperation was made more possible. Yet, the true driver for this agreement were the internal conflicts that continue on and threaten the then still thin and unsteady peace the world was experiencing.
With that, humanitarian considerations can now be seen as a normal part of every state policy, and in the bigger picture, the maintenance of international peace and security become clearly underway (Kirsch, 2001). The International Criminal Court of course, even with all the highest regards for it, could not be expected to stop all the crimes on its own. A tremendous task such as that could not be taken up alone by any kind of institution after all. The ICC could be expected instead to be part of a culture of determination to prevent warfare from occurring, and even be at the center of such.
In particular, it is suppose to work along with the older institutions such as the Security Council and the United Nations, to establish an environment where there is an increase domestic prosecution of humanitarian crimes, and a greater international cooperation to contain such crimes from still arising. The criminal court entails so much work, and it reflects the reconciliation as well of the several considerations of each state involved in, as with every type of international institution.
Making sure that the court to be effective and fair, as well to maintain the continuity of support it gets from the different states are two things that the court really has to work hard on, because they probably gauge the life of this institution (Kirsch, 2001). The international court of justice statute had prohibited states from making reservations, one right that states have in coming up with treaties and international agreements, precisely because it wants the cooperation of all the members on such important cause.
Giving out concessions to states would defeat this purpose of uniting against crimes of humanitarian nature and would make the whole point of establishing the court meaningless (Kirsch, 2001). The court had made some breakthroughs as well; some are to be considered as expansion of what the tribunals had already started on. The court has in its jurisdiction, genocide, crimes against humanity and war crimes, including breaches of the Geneva Conventions.
The court criminalized the use of certain weaponry such as poison gas and chemical and bacteriological weapons, and rape become categorized as a serious violation of international humanitarian law, which only needs a lower burden of proof rather than the crimes against humanity. Internal atrocities or non-international armed conflicts become punishable as well as criminal acts, although a number of states opposed to this (Kirsch, 2001). As such, the ICC may obliterate the need to create more tribunals.