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Kelly, Brigid --- "The Alienation of Land in Ireland and in Aotearoa/New Zealand under English Colonization" [2003] AukULawRw 9; (2003) 9(4) Auckland U L Rev 1353


The ICC: A Forum for Show Trials?

Jenni Smith[*]

I would suggest that barbarism be considered as a permanent and universal human characteristic which becomes more or less pronounced according to the play of circumstances.[1]

I. Introduction

The twentieth century was the bloodiest in human history. While it is highly unlikely that there has ever been a period in history in which war, violence and prejudice was not part of human existence, the twentieth century had one thing that earlier history did not: increasingly potent technology that enabled massive human destruction on a scale hitherto unknown. According to one estimate, fewer than 167 million lives were deliberately extinguished in the twentieth century through politically motivated carnage.[2]

This is despite the fact that throughout this period there have been efforts to establish a permanent international criminal court to try individuals for the commission of international crimes, in particular, violations of the laws and customs of war.[3] Since the First Hague Peace Conference in 1899 support for the idea has ebbed and flowed throughout the international community, depending on the “play of circumstances”. It was not until 1998 that members of the international community convened to arrange the establishment of such an institution. By 31 December 2000, 139 states had signed the “Rome Statute”[4] enabling the International Criminal Court (“ICC”) to formally come into being on 1 July 2002.[5]

Yet what of war crimes in the interim?[6] The vast majority of perpetrators of war crimes in the twentieth century were not subject to judicial sanction,[7] and even fewer were sanctioned by an international tribunal under international law. Most war crimes trials have taken place under national (rather than international) law, from those of German nationals in Leipzig after the First World War to those more recently for Nazi war crimes in France, Australia, Turkey, Israel, Canada and Germany.[8] Most have taken place under military jurisdiction, and are not in that sense truly “war crimes trials” but more often courts martial for offences against military discipline.[9] Furthermore, the post-1945 history of war crimes trials reveals a disproportionate obsession with the prosecution of Nazi war criminals.[10] The history of war crimes trials is a troubling one.

This article aims to examine some of the criticisms of war crimes trials, and to consider whether the ICC can, or should, overcome them. Section I examines these criticisms; particularly the claim that war crimes trials are, to a large extent ‘show trials’. The somewhat vague concept of the ‘show trial’ encompasses a number of ideas: such trials are partial; selective; legally dubious; and their intent is didactic or therapeutic rather than juridical. Section I will also consider the views of some who think that a ‘show trial’ – in the sense of pedagogic spectacle – is precisely what a war crimes trial ought to be. I argue for the position that “[t]he purpose of a trial is to render justice, and nothing else”,[11] but ultimately conclude that the debate rests on differing world views that may be irreconcilable.

Section II is divided into two parts. Part 1 examines one of the criticisms outlined in Section I: that war crimes trials seek to serve the interests of victims, to the detriment of justice. This criticism is examined in the context of the first truly international war crimes tribunal created, the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), and in particular one of the very first decisions made by that tribunal: the decision to allow anonymous witnesses in the Tadić trial.[12] Part 2 first examines the place of victims in the Rome Statute, and discusses whether the decision in Tadić would (or should) occur in the ICC. The examination then turns to Article 65(4) of the Rome Statute and asks the question: will the ICC become a forum for show trials?

II. Criticisms of War Crimes Trials

For most people, ‘war crimes trial’ is synonymous with ‘Nuremberg’. The International Military Tribunal,[13] convened at Nuremberg to try to punish some of the prominent Nazi war criminals, was supposed to be, in the words of Justice Robert Jackson,[14] “one of the most significant tributes that Power has ever paid to Reason”.[15] Yet even Nuremberg, the “war crimes trial par excellence[16] has been labelled a ‘show trial’ – a criticism that has been directed at war crimes trials ever since.

The concept of a ‘show trial’ in the Stalinist vein, where a few pre-selected people are symbolically scapegoated, is clearly an anathema to the traditional western concept of the rule of law. But, as I will show below, many of the criticisms of war crimes trials run much deeper than this. The many issues surrounding war crimes trials do not occupy discrete categories; however, they have been roughly grouped in this article under the following headings: (1) legality; (2) partiality and politics; (3) interests of victims; (4) ideological dimensions; and (5) pedagogic and didactic functions.[17]

1. Legality

One of the main criticisms of Nuremberg, both at the time and subsequently, was that the trials were ex post facto applications of law to acts that were not crimes at the time they were carried out.[18] Defence counsel at Nuremberg argued that the idea of universal criminality was not part of international law at that time, and hence that the defendants could not possibly have known that their acts were illegal. Simpson notes that this argument failed, but “only after a rather unconvincing trawl through pre-War international law for evidence of an incipient criminal law system”.[19] In particular, although there were also arguments as to the precise technical definitions of ‘war crimes’, it was not really disputed that one of the charges, ‘crimes against humanity’,[20] had not been recognized at international law. This criticism, that war crimes trials violate the principle nullem crimen sine lege is one not confined to Nuremberg; the problem of the vagueness of the definition of a ‘crime against humanity’ or a ‘crime against peace’ is one that has remained until the present day. The International Law Commission’s (somewhat halting) progress over the past fifty years, as well as the statutes of the ICTY, the International Criminal Tribunal for Rwanda (“ICTR”), and the ICC, may have remedied this to some degree. However, it is debatable whether (absent the above statutes) the category of ‘crimes against humanity’ possesses any independent existence.[21] At any rate, the prosecution at Nuremberg acknowledged the vagueness of the category and thereby strove to ensure that this charge was an addendum to the main war crimes charges.

Another accusation levelled at war crimes trials (and one intimately connected with partiality) is that they seem to violate the principle that laws should be consistently applied, a fundamental element of the rule of law. Under this principle, law should be applied uniformly, to all groups, at all times and locations. This was a part of the ‘victor’s justice’ criticism levelled at Nuremberg. The governing laws of the trial were not applied equally; the standards of guilt were applied only to the losers. The Soviets, for example, were not held to account for their aggression against Poland, the Baltic States, or Finland. The United Kingdom and the United States were not required to confront the bombings of Dresden, Hiroshima and Nagasaki.[22] Moreover, the fact that war crimes trials have only ever been conducted in the case of a few (mostly Nazi) war criminals along with a selection of perpetrators of other atrocities (such as the ethnic conflicts in Yugoslavia and Rwanda) makes any “justice” weaker by virtue of the fact that so many others have gone un-prosecuted. This has obvious effects for the legality of any individual trial.

Issues of procedural fairness have also been raised. The trial of the major Nazi leaders at Nuremberg did seem to have adequate procedural protections (notwithstanding the other legal issues); indeed, Teitel argues that “Nuremberg was not a show trial, not in the ordinary sense of a pre-ordained result. Right to counsel was guaranteed, along with the presumption of innocence”.[23] However, Maguire acknowledges that, while “high-ranking Axis leaders were given elaborate trials in Nuremberg and Tokyo ... lesser offenders were tried by military commissions with few legal pretences”.[24] The Tokyo trials generally, whether of high-ranking officials or not, were much less concerned with the appearance of fairness, and have been widely condemned as legal farce. General Yamashita Tomoyuki’s trial particularly stands out (in the words of the dissenting Supreme Court judges) as “a judicial lynching without due process of law”.[25] Not only was the defence treated unequally during the trial, but there was a failure even to comply with basic rules of evidence. Yamashita’s conviction rested in large part on hearsay, and, even more absurdly, a hastily constructed propaganda film.[26]

Commenting on the trial of Yamashita, Japanese philosopher Yoshimoto Takaaki wrote in 1986: [27]

From our point of view as contemporaries and witnesses, the trial was partly plotted from the very start. It was an absurd ritual before slaughtering the sacrificial lamb...I also remember my fresh sense of wonder at this first encounter with the European idea of law, which was so different from the summary justice in our Asiatic courts...the accused were able to defend themselves and the careful judgment appeared to follow a public procedure.

Buruma adds: [28]

Yoshimoto’s memory was both fair and devastating, for it pointed straight at the reason for the trial’s failure. The rigging of a trial – the “absurd ritual” – undermined the value of that European idea of law.

The legality problems outlined above are still of at least nominal concern even for those who might argue that a war crimes trial should seek to do more than merely render justice. Lawrence Douglas, who thinks that the idea that a trial should have the sole purpose of rendering justice is a “needlessly restrictive vision of the trial as legal form”,[29] still considers that “[o]nce one has decided on the latter course [a trial], one must satisfy law’s stern requirements. To permit even the most spectacular crimes to destroy legal form is to turn, pace Arendt, a trial into a grotesque show”.[30] Mark Osiel, who argues that the predominant purpose of war crimes trials is the development of a coherent collective memory of a people, still acknowledges that trials will have more effect where acceptance of legal and political processes underscores the entire event.[31] The question remains whether the didactic functions of war crimes trials necessarily compromise the very legality that both these proponents of pedagogy claim to be important.[32]

2. Partiality and Politics

[E]ach war crimes trial is an exercise in partial justice to the extent that it reminds us that the majority of war crimes remain unpunished.[33]

The accusation of ‘victor’s justice’[34] is one example of the problem of partiality in war crimes trials. In perhaps the ultimate irony, the Allied agreement to try German war criminals – to subject them to the rule of law and universal human rights - was signed on 8 August 1945, the same day that the United States dropped the second of its atomic bombs on the predominantly civilian population of Nagasaki, immediately killing approximately 70,000 people.[35] Objections raised at Nuremberg pointed out the reality that, while the Allied victors of the Second World War wished to use international law to condemn the actions of the Axis powers, they in no way applied those same international laws to their own wartime acts.[36] Robert Jackson’s reported comment that the trial was an example of “superior right, not superior might” appears farcical in this context. However, as Simpson points out, the problem of partiality runs much deeper than the ‘victor’s justice’ argument, not in the least because (with the exception of the Nuremberg and Tokyo proceedings) war crimes trials have not typically been conducted by the ‘victors’ of a war.[37] The partiality inherent in the trials is related more fundamentally to ideological preferences and political expediency.

Partiality thus includes a tendency towards prosecuting ideological enemies, rather than ideological friends.[38] Thus, while calls for war crimes trials were heard in the cases of Cambodia and Iraq, these calls were notably absent regarding Vietnam or East Timor. Accusations of selectivity go even further than ideology. In some cases, racial or gender bias also shows through. It has been noted that “[t]he imperfect justice meted out after World War Two itself revealed a curious racial bias against the Japanese and in favour of the German war criminals at Nuremberg where the procedural safeguards accorded to the accused were infinitely greater.”[39] In the same vein, posters during the war had depicted Germans as the enemy, but in a way that made it clear they were to be respected. The Japanese were conversely presented as somehow subhuman. Crimes against women have been ignored until fairly recently, when it was acknowledged for the first time, by the ICTY, that rape committed on the scale found in the Former Yugoslavia was a crime against humanity.[40]

Furthermore, the realpolitik of political diplomacy cannot be ignored. What if the price of peace is an amnesty from prosecution? When does political expediency become a reason to ignore atrocity? Again, the wake of World War Two serves as an illustration of this problem. Despite the high rhetoric of the American prosecution in Nuremberg, the political aspect of the trial was also evident. Nuremberg was intended to send a message to the world about unjust war and designed to vindicate Allied military policy regarding the war, including the illegal occupation of post-war Germany by the United States.[41] When Robert Jackson was asked what he thought the purpose of the trials should be, he answered that “they were to prove to the world that the German conduct of the war had been unjustified and illegal, and to demonstrate to the German people that this conduct deserved severe punishment and to prepare them for it”.[42] The political aspect of the trials are further evidenced by the fact that once this goal had been served and replaced by more important goals, the vast majority of war criminals convicted by American courts in post-war Germany were “quietly released by 1955”.[43] Maguire argues:[44]

Rather than admit outright that the war crimes trials were political acts, U.S. leaders chose to manipulate the judicial machinery, tacitly demonstrating to Germans that they had been correct all along – that the treatment of the vanquished was, and had always been, a political act.

Maguire’s comment is overly harsh. Notwithstanding the criticisms that have thus far been outlined, it seems unfair to ascribe a complete lack of a genuine motivation to pursue justice in the United States’ prosecution of Nazi war criminals. Further, the fact that the release of convicted war criminals was effected with little pretence of legality does not necessarily imply that the original convictions were also flawed in the same way.[45] A day is a long time in politics. The changing political climate of the cold war meant that the United States (which was still in effective control of post-war Germany) chose to release the remaining convicted war criminals. The way the United States went about the releases, rather than the trials themselves, is what prompts Maguire’s comment that the prosecution of war criminals “was, and had always been” political; the problem was the United States embarked on a series of legally questionable “proceedings”[46] in order to obtain releases, while ostensibly maintaining the existence of legal justification for doing so.

Of all the criticisms regarding international criminal trials, the problem of political expediency is the one most likely to continue under the ICC. However, many of the other ‘legality’ criticisms seem likely to be largely avoided by the ICC. For example, the Rome Statute does not apply retrospectively, thus avoiding claims that individuals are being prosecuted for acts that were not crimes at the time they were committed. Moreover, crimes are defined publicly and in detail, avoiding potential claims of ignorance as to the elements of crimes. At any rate, these crimes are not ‘revolutionary’ or even new – they have been slowly evolving in international law for the past fifty years. Thus most future criticisms of the legality of the ICC are likely to be from states challenging the jurisdiction of the Court.

Accusations of political trials are not, however, always negative. Orentlicher defends the concept by saying that “[t]o the extent that trials confirm and enforce core community values, they are political in a sense that is, far from the antithesis of justice, indispensable to public perceptions that justice has been rendered”.[47] The notion expressed here though seems to rest on the assumption that the public’s “core community values” can never themselves be unjust. Yet surely, if anything, the Nazi period taught us the opposite – whole communities can be wrong about something.

Kritz argues that, far from being exercises in partiality and politics, war crimes trials can establish “an understanding that aggressors and those who attempt to abuse the rights of others will henceforth be held accountable”.[48] But the stark reality of the history of war crimes trials undermines this assertion – since the vast majority of human rights abuses this century have gone unpunished, how can the odd trial here and there establish an understanding that those who do commit such atrocities will be held accountable?

Partiality and realpolitik will undoubtedly always form part of the equation in international criminal law. To what extent will be examined in Section Two, but for now it will suffice to say that “[p]ower will always be able to dominate law. We cannot erase this equation, but we can rig it by creating fair and just legal institutions that are more powerful than the criminals.”[49]

3. Interests of Victims

The argument that war crimes trials should allow victims’ interests to compromise the justice of a trial is the most difficult to sustain. While many who would class themselves as legal liberals are concerned about the potential threats to justice outlined thus far, there are far fewer who see anything to be concerned about in the notion that, in part, a war crimes trial is a forum for victim therapy. The reasons for this position are obvious. Victims of mass atrocity have suffered some of the worst experiences humankind has to offer. To most of us, it adds a sense of insult to injury to deny the victim the chance to participate in a potentially therapeutic process. Yet, if a trial’s purpose is “to render justice, and nothing else”[50] then allowing “even the noblest of ulterior purposes... can only detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment”.[51]

A classic description of therapeutic purpose states that: [52]

[T]he discourses of torture, rape, murder and other forms of violence teach their targets that they are nothing but objects. The process of telling and of observing one’s story being heard allows survivors to become subjects again, to retrieve and resurrect their individual and group identities. From voice comes hope.

Victims of trauma may indeed need a vehicle through which to tell their stories, and thus to heal. Yet that does not mean that a criminal trial is the forum where this should take place. On the contrary, it is suggested here that a courtroom is a bad place for therapy because it compromises both the victims’ opportunities for genuine healing and the judicial function of the trial.

For victims, the trial is unsatisfying in several ways. Victims’ experiences often do not find their way into legal cases, either because there are too many crimes to try, or because those experiences, although horrible and morally reprehensible, do not constitute crimes under international law: “[t]here is no crime of destruction of souls, deprivation of childhood, erasure of dreams”.[53] Further, even if their case does come before a court, victims may still be denied the opportunity to truly tell their story, since law’s unique processes and discourse changes an individual’s experience into something quite different from what she would consider to be her reality. “Law does not permit a single witness to tell his or her narrative; it chops the stories into digestible parts, selects a handful of these parts, and sorts and refines them to create a new narrative”. [54] If the law is to remain just, victims and witnesses will “undergo the ordeals of testifying and cross-examination, usually without a simple opportunity to convey directly the narrative of their experiences.”[55]

The Eichmann Trial in Israel in 1961 was an occasion where critics say the voices of the victims were heard loud and clear, and resulted in the trial becoming a travesty:[56]

The prosecutor opened his address with the following words: ‘When I stand before you, judges of Israel, in this court, to accuse Adolf Eichmann, I do not stand alone. Here with me at this moment stand six million prosecutors....’ With such rhetoric the prosecution gave substance to the chief argument against the trial, that it was established not in order to satisfy the demands of justice but to still the victims’ desire for and, perhaps, right to vengeance.

The Prosecutor had assembled a collection of Holocaust survivors who longed for their day in court and the opportunity to tell their story. The judges argued with the prosecution over their approach of “painting general pictures,” but proved incapable of halting the testimony once it had begun, as Judge Landau put it, “because of the honor of the witness and because of the matters about which he speaks”[57]. Who were the judges to deny any of these victims their day in court? Who would have dared to question the witnesses’ truthfulness as they “poured out their hearts [from] the witness box”, even though what they had to tell could only “be regarded as by-products of the trial”?[58]

Arendt, among others, condemned the trial as a spectacle: many of the witnesses relayed stories of their experiences of the Holocaust which had absolutely no connection to Eichmann or to any of the crimes he was alleged to have committed. By allowing the ‘therapeutic’ function to intrude, justice was severely compromised. However, as pointed out above, if a trial operates according to the rule of law, it is unlikely that the needs of victims will be met. Mertus notes: [59]

The problem with ... war crimes tribunals ... is that they are war crimes tribunals. The stuff of law – the elements of the crimes, the rules of procedure, the dance of witness, lawyer, judge – can do only so much. And the closer one is to the crime, the less likely “so much” will be enough.

The trials cannot be “fixed” to address what is missing; rather, additional means must be found to contend with the concerns of survivors.[60]

4. Ideological Dimensions

Just as belief belongs in church, surely history education belongs in school. When the court of law is used for history lessons, then the risk of show trials cannot be far off. It may be that show trials can be good politics – though I have my doubts about this too. But good politics don’t necessarily serve the truth.[61]

It was widely accepted among the prosecutors at Nuremberg that they were aiming not only to secure convictions for the accused, but also to play a role in history. Robert Storey, executive trial counsel, spoke of the aim of the trial as being to create “a record of the Hitler regime which would withstand the test of history.”[62] The trial of Adolf Eichmann was meant to place the Holocaust in proper historical perspective:[63]

“We want the nations of the world to know” said David Ben Gurion, then Israeli prime minister.... The trial was not concerned with revenge, he insisted, but it was certainly preoccupied with establishing a place for the Holocaust in history.

Ferencz, the Chief Prosecutor in the trial of the Einsatzgruppen, openly acknowledges that the aim of the prosecution was not simply to punish the guilty: “In that case, to pick out twenty-two [of 2000] would have been rather absurd. We had something more in mind. First, of course, we wanted to establish a historical record.”[64]

The problem with using a trial to create history is that the historical narrative becomes distorted upon its relocation into a legal setting. Law, in order to be effective as law, must distinguish between relevant history and irrelevant or inadmissible history. If certain information is not directly relevant to the procedure, a lawyer must exclude it. An historian is “dedicated to a different mission”,[65] and will find excluded information to be a useful part of the story he is trying to tell. Marrus argues that legal procedures are not designed to tell a historical narrative, but to facilitate a fair judgment. “If you want history written, turn to historians, not to lawyers.”[66] Buruma argues that in the process of conducting a trial, “[t]he terrible acts of individuals are lifted from their historical context. History is reduced to criminal pathology and legal argument ... [the trials] will not do as history lessons.”[67]

The “re-telling” and “distorting” effect of a war crimes trial “confines a historical moment in its abnormality but wishes to make its lesson universal and atemporal”.[68] The obsession with Nazi war criminals is classically illustrative of this difficulty. The Nazi period is viewed as an aberration in human history. By relentlessly pursuing and prosecuting those war criminals, society is able to continue to see the episode as unique and, perhaps more importantly, removed from our common experience of humanity. In this way, we can confidently assure ourselves that we would never do anything like that.

The legitimating function of a war crimes trial is linked with criticisms of partiality and also seeks to tell the story from a particular point of view. In this story, good (‘us’) and evil (‘them’) are clearly defined. The fact that Nazi war crimes were investigated at Nuremberg while Allied war crimes were not served to reveal the ‘truth’ that while the acts of the Nazis were war crimes, the acts of the Allies were not. Likewise, the retelling of the Holocaust story in the Eichmann trial lent legitimacy to Israel’s existence “and any measures the state deemed necessary to that continued existence”.[69] The Barbie trial in France ended up, in part, as an attempt to promote the notion that Vichy France was not really as anti-Semitic as Nazi Germany, and also to legitimate France’s conduct in Algeria – the French did not commit crimes against humanity, “because, after all, they were not Nazis”.[70]

Every war crimes trial serves to implicitly legitimise other conduct that has not been subjected to judicial sanction. Thus the Australian case of Polyukhovich “exclude[d] Indonesian brutalities in East Timor from its definition of war crimes”,[71] and firmly rejected the idea that the Aboriginal people had been subjected to genocide via forced removal of children.[72] Simpson argues that the proposals to try Saddam Hussein after the 1991 Gulf War “imply that the Allied bombing of electrical facilities in Iraq complied with the laws of war”.[73]

5. Pedagogic & Didactic Functions

Despite these criticisms, there are those who think that a pedagogic spectacle is precisely what a war crimes trial ought to be. Douglas argues that Arendt’s scathing critique of the Eichmann trial was a “needlessly restrictive vision of the trial as legal form”.[74] He does recognize that the “danger of turning a trial into a pedagogic spectacle is that it becomes a legal farce”.[75] Douglas argues, however, that, so long as the appearance of legality is maintained, didactic functions are entirely justified. He essentially advocates a “didactic legality”, whereby pedagogic interests are served without compromising judicial fairness. Here Douglas appears to hold a contradictory position: while he maintains that legality must be maintained at the same time as the pedagogic spectacle, he consistently demonstrates that these two functions are rarely compatible.

Douglas argues that the Holocaust trials failed to preserve historical accuracy because they were too constrained by legal process[76] As Osiel puts it:[77]

Like its predecessors at Nuremberg, the Eichmann prosecution found itself, in the early going, struggling to reconcile the need to present a legally cogent case with the need to dramatize the spectacular nature of the crimes to be adjudged.

Douglas’s argument stems from his belief that “Nazi crimes stretch and overtax conventional jurisprudential understandings”.[78] Since the law is, he asserts, unused to, and incapable of, dealing with such atrocities, pedagogy can aid the task of the law by helping a society to understand its traumatic history. Douglas examines how the law struggled to master the “radicalness of Nazi atrocity” because legal discourse is “too formal and anchored in precedent to make sense of unprecedented crimes”.[79] Ultimately he concludes that:[80]

It was not the pursuit of didactic history that ultimately eroded the legal integrity of the proceeding conventionally conceived; rather, it was the strenuous efforts to secure formal legal integrity that often led to a failure fully to do justice to traumatic history.

Mark Osiel is another who claims that the function of a war crimes trial should be didactic. In his view the trial is a way to deliberately construct the collective memory of a society. He asserts that when criminal trials are effective as a public spectacle, they “stimulate public discussion in ways that foster the liberal virtues of toleration, moderation, and civil respect”.[81] Osiel recognizes the challenges that his view presents to the concept of justice, but argues that in a liberal society show trials are justified because “[l]iberal show trials are ones self-consciously designed to show the merits of liberal morality and to do so in ways consistent with its very requirements”.[82] Like Douglas, he acknowledges that the appearance of legal integrity is essential to the trial’s pedagogic success.

Osiel wholeheartedly embraces the notion that part of the didactic purpose is to change the collective memory of an event. He argues that courts can legitimately “tailor” their “stories” in order to demonstrate the merits of liberal morality. But because a liberal society welcomes dissent, alternative (perhaps more accurate) narratives will be able to compete with the official legal interpretation of an event.[83] In this way, Osiel argues that the truth will be safeguarded.

This argument is dubious at best. According to the logic of this view, the use of the Barbie trial to recast the French in an innocent light in order to produce a ‘healthier’ collective memory was entirely justified because dissenting viewpoints would be allowed to compete. Osiel fails to realise that dissenting voices are just that – dissenting – and therefore necessarily in the minority. Aside from compromising the justice to the individual defendant (who after all, should be allowed to ‘tell her story’), allowing the trial to be used to permit an entire society to bury its head in the sand regarding a tragic event is probably one of the surest ways to see such tragedy repeated. A failure to examine the root causes of atrocities will likely lead to a failure to recognize the first signs of trouble when they once again appear.

Both Douglas and Osiel contend that the success of the pedagogic spectacle is partly dependent on the appearance of fairness and legality. Yet this contention fails to recognize that much of the criticism aimed at war crimes trials has been addressed precisely by this problem: they were pedagogic spectacles that aimed to appear fair and just, yet if the rule of law is to be respected, it must be the actual presence of justice, rather than the mere appearance of it, that is important.

The views of Douglas and Osiel can perhaps be understood as criticisms of legal liberalism’s notion of the rule of law as an impartial and objective system of rules. Douglas asserts that Arendt’s criticisms presuppose a particular theory of the law in general and of the trial as a specific legal form: “this theory comprehends law in its most general sense, as a ‘system of rules’”.[84] He outlines the challenges to legal liberalism that have been made by legal realists, critical legal scholars, and more recently, scholars of “narrative jurisprudence”.[85]

The classic criticism of legal liberalism’s strict adherence to the notion of the rule of law is based on the belief that liberal legal ideology ignores the political, social and historical context in which legal decision-making takes place. “Law is simply politics in different garb: it neither operates in a historical vacuum nor does it exist independent of ideological struggles in society.”[86] It is argued that law seeks to set itself apart from political and social contexts by pretending to be neutral, objective and quasi-scientific.[87]

A response to this argument, put forward by Herzog,[88] is that while alleging legal liberalism’s failure to acknowledge the political and social context of law critics fail themselves to take into account the political and historical context in which liberalism arose. During religious civil wars in Europe, Enlightenment writers advocated rationality and reason, “not because they had a naïve view of the powers of human cognition in social life, but to bash the Roman Catholic Church,”[89] the political, religious, and legal power of which was overwhelming. Claims that liberals made for autonomy and coherence of law were bids to take legal decision-making out of the hands of those who had explicitly political interests and who exercised their power arbitrarily, in order to try and ensure law was “more regular, more predictable, and more accountable”.[90] “That was a real change. Law used to be transparently political. The history of early modern Europe is full of incidents that make it obvious why liberals pressed for a separation of law and politics.”[91] Demanding the separation of law and politics in this context meant demanding an end to abuses of the law: [92]

It did not mean imagining some bizarre world in which the practice of law would make no political difference... Liberals – and others fond of the rule of law – need not deny that political considerations enter. They need only say that what happens in court is better than the available alternatives.

Thus liberals do not hold fast to the rule of law because they naïvely think that politics and other considerations do not enter the equation; they do so because they are aware of the dangers of allowing such considerations to intrude (many of which have been illustrated earlier in this article). When liberals claim that the purpose of a war crimes trial is to render justice, and nothing else, their claim is aspirational rather than descriptive.

More fundamentally, the underlying difference between the two sides of the debate is simply that their views of the human condition are so different. Douglas holds the view that the reason law is not capable of dealing with incidents such as the Holocaust is because such incidents are so “unprecedented” that the law cannot master their “radicalness”.[93] For Osiel, the opportunity to “shape” the collective memory must be taken partly because that memory is otherwise too terrible to imagine. Douglas and Osiel want to tell a historical narrative – but in so doing refuse to look history squarely in the face. In Simpson’s words, the problem is that they “cannot [admit] that history is the history of crimes against humanity. Instead, the history of genocide must be viewed as an aberrant and unique series of disparate events detached from the progress of history itself.”[94] Such views are essentially ahistorical in that they attempt to “remove from the frame a sequence of crimes stretching unbroken from Nuremberg to the Hague and implicating each of the major powers.”[95]

As stated by the international jurist, B.V.A. Röling, “the foremost, essential function of criminal prosecutions [is] to restore confidence in the rule of law. The legal order is the positive inner relation of the people to the recognized values of the community, which relation is disturbed by the commission of crimes”.[96] What was the holocaust but murder writ large? The law is perfectly capable of dealing with that. Criminal law does not inquire into the reasons why people offend. “Justice demands that the accused be prosecuted, defended, and judged, and that all the other questions of seemingly greater import – of ‘How could it happen?’ and ‘Why did it happen?’... be left in abeyance.”[97] It is not that these questions are unimportant – far from it – but merely that the law is not capable of answering them. There are other forums in which to debate these issues. A war crimes trial should be left to remain a proper trial.

III. Contextual Analysis

1. Justice and Victims’ Interests in the ICTY

This section examines a criticism outlined in Section I – that war crimes trials are used primarily to serve victims’ interests – in the context of the ICTY. In particular, the focus is on the decision to allow anonymous witnesses in one of the ICTY’s first cases: Prosecutor v Tadić.[98] This illustration highlights the tension between the judicial and therapeutic (or victim-oriented) purposes of a war crimes trial, and demonstrates how an attempt to accommodate non-juridical purposes can unfairly compromise the minimum procedural guarantees to which defendants are entitled.

Although Nuremberg and Tokyo are often referred to as ‘international’ tribunals, they were, strictly speaking, multinational rather than international, since only the victors of World War Two were represented. The ICTY is, therefore, the first truly international criminal tribunal created – set up not by a group of states, but by the international community as a whole, as represented by the Security Council.[99] It has been noted however, that: [100]

The daunting challenges confronting the Hague Tribunal are rendered more complex still by the inherent paradox surrounding its creation: It is at once the most ambitious global effort since Nuremberg and Tokyo to subordinate lawless power to the rule of international law and to moral principle, and yet, at the same time, it is a project instituted by states that stunningly failed in other respects to arrest the behaviour they now claim authority to judge.

The ICTY has thus been seen by some critics as “little more than a sop to the conscience of a world that did little to stop the wars and genocide”. [101] For this reason, the challenge for the ICTY was to refute these criticisms by manifestly displaying a commitment to human rights.

Following the trend in many national criminal jurisdictions, the Statute of the ICTY makes some provision for the role of victims. It deals with victims mainly in their role as witnesses, as do the Rules of Procedure and Evidence.[102] The ICTY provides a Victims’ and Witnesses’ Unit, which provides protective measures, as well as counselling and support.[103] Article 20(1) instructs the court to have “due regard” for the protection of victims and witnesses.[104] Victims are still placed largely in an auxiliary role by the ICTY Statute and Rules, although some rules relating to restitution and compensation provide a limited degree of reparation for individuals.[105] However, victims’ rights advocates see the Statute as fairly limited overall and conclude that “[f]rom the point of view of victims, the work of the ... ICTY ... can be considered a disappointment in many respects.”[106]

As an international criminal tribunal, representing, for some, the zenith of international human rights law, the status of rights of the accused in the ICTY was not expected to be a matter of dispute. Indeed, the UN Secretary-General’s report on the establishment of the ICTY stated that “[i]t is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of the proceedings ...”.[107] In particular, Article 14 of the International Covenant on Civil and Political Rights (“ICCPR”) was considered as the foundation and core of those rights.

Disappointingly, the ICTY failed to demonstrate a commitment to human rights. In 1995, in response to a request from the Prosecutor, it issued a controversial decision allowing the testimony of anonymous witnesses in Tadić .[108]

(a) Right to a Fair Trial at International Law

The right of an accused to examine his or her accusers is recognized as fundamental in most legal systems. It is an element of the right to a fair trial,[109] which was affirmed as a basic human right in 1948 in the Universal Declaration of Human Rights (“UDHR”), and has also been recognized in Article 14 of the ICCPR and Article 6 of the European Convention on Human Rights (“ECHR”).[110] These provisions are “minimum” guarantees, providing a threshold below which courts cannot go without compromising fairness.[111]

The provisions for a fair trial recognized internationally are similar to those recognized in both the common law and civil law worlds. Trinidade argues that:[112]

Whether we have in mind the component elements of the right to a fair trial, as developed in the common law countries, or those which are derived from fundamental guarantees (garanties fondamentales), as developed in civil law countries (droit civil), in the present domain we find ourselves before general principles of law, universally acknowledged. With the advent of international instruments of human rights... the concepts of fair trial and fundamental guarantees enshrined therein acquire an autonomous meaning. The principles they incorporate are universal; they are general principles of law... found in different legal systems. They are not the invention of a group of States, but a reflection of the juridical conscience of humankind.

(b) The Majority Decision in Tadić

The majority considered that as a body unique in international law it had little precedent to guide it.[113] Rules governing Nuremberg and Tokyo were “rudimentary”, with the International Military Tribunal resolving most procedural problems as they arose on a case-by-case basis.[114] The majority further considered that as an “ad hoc institution, the [ICTY] was able to mold its Rules and procedures to fit the task at hand.”[115]

The majority decision purported to look at general rules of treaty interpretation,[116] notably Article 31 of the Vienna Convention on the Law of Treaties (“VCLT”) by looking to the “context and object and purpose” of the ICTY Statute.[117] However, in the end, the Tribunal’s focus was not really on the purpose of the Statute, but rather on what was considered to be the Tribunal’s unique and compelling obligation to protect the alleged victims of (and witnesses against) the accused.[118]

The Trial Chamber concluded that anonymity was permitted, despite the fact that it is not mentioned in the Statute or Rules. The Court’s determination rested mostly on its view that since the Statute contained a particular mandate to protect the interests of victims, it was unique in international law; as such, neither the provisions of the ICCPR or ECHR, nor interpretations of those instruments by other judicial bodies had any binding effect:[119]

These considerations [of victim interests] are unique: neither Article 14 of the ICCPR or Article 6 of the [ECHR], which concerns the right to a fair trial, list the protection of victims and witnesses as one of its primary considerations. As such, the interpretation given by other judicial bodies to Article 14 of the ICCPR and Article 6 of the ECHR is of only limited relevance in applying the provisions of the Statute and Rules of the International Tribunal, as these bodies interpret their provisions in the context of their legal framework, which do not contain the same considerations.

The Court thus found that although the jurisprudence of other judicial bodies is relevant to the meaning of “fair trial”, the proper balance to be struck in each case depends on the context of the legal system in which the concepts are being applied.[120] And since the ‘context’ of the ICTY was a mandate to protect victims, they were justified in reaching a different interpretation. However, as a matter of textual analysis, this was, and remains, a dubious claim. Given that other forms of victim protection were specified in the statute, it would be odd if the drafters omitted to mention the strongest form of protection – anonymity – had it really been contemplated.[121] Moreover, as a rule of statutory interpretation, the intention to remove or minimise a fundamental human right must be done explicitly, not impliedly.

A further argument put forward was that instruments such as the ECHR are supposed to apply in “ordinary criminal” adjudications: since the Tribunal was adjudicating matters “so horrific as to warrant universal jurisdiction”, they were justified in applying less stringent rules, such as had been applied in countries conducting their own war crimes trials, where more lenient rules of evidence were allowed.[122] Although defence counsel in those trials had objected to the admission of affidavits and hearsay evidence, it was noted that “there can be no doubt as to their admissibility under the laws governing at least most of the countries which have conducted trials of offences under international criminal law”.[123] Here the majority in Tadic has overlooked the argument that a court such as the ICTY, created to vindicate human rights, must be more, not less, concerned with the rights of the accused, and should not be taking lessons from war crimes trials that have been criticised precisely because their guarantees of procedural fairness were weaker than the minimum required by international law. As noted by Simpson, “[i]t is clear that in an area of law so thoroughly politicised, culturally freighted and passionately punitive as war crimes, there is a need for even greater protections for the accused”.[124]

Since the Court had decided that human rights conventions guaranteeing the right to a fair trial were not binding, it went on to apply a “balancing approach”. The reason why disclosure of witness identity is so important was acknowledged: without it, the Defence may be denied the opportunity to gather information that may demonstrate that the witness is “prejudiced, hostile, or unreliable”.[125] However, the judges decided that the “interest” (no longer “right”) of the accused in gathering this information should be weighed against the witnesses’ interest in anonymity.[126] Furthermore, they held that the balancing of these interests is inherent in the notion of a “fair trial”, which meant not only fair treatment of the defendant but also of the prosecution and its witnesses.[127] This is a curious position. Rights jurisprudence generally holds that a right cannot be balanced except as against a competing right. This certainly does not mean that a right can be sacrificed in favour of a mere ‘interest’.

The general rule that the defendant must know the identity of witnesses may be departed from only in exceptional circumstances:[128] for the majority, such circumstances existed when there was an armed conflict in the area (the “national emergency” exception allowed in the ICCPR).[129] However, aside from the fact that the “national emergency” exception is for national courts,[130] not international tribunals, this seems to be flawed reasoning in the context of the ICTY, which was created precisely because there was an armed conflict out of which atrocities had arisen. Moreover, this reasoning sets a dangerous precedent, as the same “emergency” of armed conflict will likely be present in many cases before the ICC.

The majority concluded by stating that in such exceptional circumstances, an exception could be made to the “general rule” where (i) there was real fear on the part of the witness;[131] (ii) the testimony to be given was important to the Prosecutor’s case;[132] (iii) there was no prima facie evidence that the witness was lying;[133] and (iv) there was no available witness protection programme.[134]

Thus the balancing approach concluded that the accused was entitled to “something less than a fair trial” because of the necessity of protecting victims and witnesses.[135]

(c) The Dissenting Judgment[136]

Judge Stephen strongly disagreed with the position of the majority. He reached the opposite conclusion by an examination of the ICTY statute, as well as consideration of the relevant human rights instruments.

Judge Stephen took into account the Secretary-General’s report on the establishment of the ICTY (mentioned above), which took it as “axiomatic” that the ICTY would fully respect internationally recognized standards regarding the rights of the accused. [137] He noted the significant difference between “full respect” for the rights of the accused and “due regard” for the protection of victims and witnesses, as outlined in the language of Article 20(1) of the ICTY statute. Furthermore, he contrasted the “detailed and emphatic enumeration of distinct rights of the accused in Article 21” with the rule-making direction in Article 22, “which does no more than direct that provision be made in the Rules for witness protection”.[138]

Article 21(2)’s provision for a “fair and public hearing” is the only provision subject to Article 22, which provides for the protection of victims and witnesses. Article 21(4), which enumerates in detail the rights of the accused – including the right to examine witnesses – contains no such provision.[139] Judge Stephen commented:[140]

What it is in Article 21(2) that is to be subject to Article 22 can scarcely be the combined concept which precedes that phrase, the concept of a “fair and public hearing”. It must rather be only one component of that concept, the public quality of the hearing and not its fairness, that is made subject to Article 22, and this for two reasons: first, because while Article 22 specifically contemplates non-public hearings, it certainly does not contemplate unfair hearings; secondly, because Article 20(1) itself, unqualifiedly and quite separately from Article 21, requires a Trial Chamber to ensure that a trial is “fair”.

Some of the recent case law on the issue was outlined, including the decision of the ECHR in Kostovski,[141] in which the Court had found that the “use of anonymous statements as sufficient evidence to found a conviction... involved limitations on the rights of the defence which were irreconcilable with the guarantees contained in Article 6”.[142] Judge Stephen noted further that the wording of Article 6 was almost identical to Article 21(4) of the ICTY Statute.[143]

The dissenting opinion of Judge Stephen is compelling, and fits far more comfortably with the conception of a tribunal the supposed aim of which is to punish grave breaches of human rights by appealing to humanitarian norms and the rule of law. “An established procedural right of the accused is to examine witnesses. In order for this guarantee to mean anything, it must guarantee effective examination of witnesses.”[144] The decision to allow anonymous witnesses is problematic because it violates international standards and sends a message to the international community that human rights and humanitarian norms are not inviolable.[145]

Sadly, the repercussions of the majority judgment in Tadić may be wide. The majority denied that internationally recognized standards of human rights were binding on the ICTY. “Arguing that a tribunal set up by the United Nations to prosecute grave violations of humanitarian law can do so by violating internationally recognized standards of human rights is illogical.”[146] It overwhelmingly weakens the idea of human rights that such a body seeks to protect. Disallowing anonymous witnesses may result in the loss of potentially damning testimony. Yet allowing anonymous witnesses, especially in an environment as politically charged as an international criminal tribunal, may lead to the conviction of an innocent person.[147]

This case is illustrative of the potential dangers that arise when other purposes, however noble, are allowed to intrude on the domain of criminal justice. As it happened, the danger was in fact borne out in Tadić. “Witness L” (whose identity was withheld from the public) provided detailed descriptions of mass murder and public rape, directly implicating Tadić. “Witness L” turned out to be a lying.[148] According to the witness, the story was made up “at the insistence of the Bosnian government”.[149]

2. Victims’ Interests and Show Trials in the ICC?

In July 2002, more than one hundred years since the idea of a permanent court to try international crimes was first proposed, the International Criminal Court finally became a reality. Despite the unfortunate lack of support from the United States,[150] the Court is regarded by many as a bastion of hope for the continued development of human rights protections.

Yet, as the discussion in Section I illustrates, the history of post-1945 war crimes trials is far from encouraging. Tensions between a trial’s juridical purpose and its perceived didactic or therapeutic functions were palpably demonstrated in the examination of Tadić above. Here it was shown that the interests of victims were allowed to compromise the right of the accused to a fair trial. This esction begins with a general examination of the position of victims in the Statute of the ICC, and then considers whether the Tadić decision would (or should) occur in the ICC. The discussion then turns to Article 65(4) of the Statute,[151] and considers whether the ICC will be a forum for show trials.

Unlike the ICTY, the question of the position of victims in the ICC was considered from the outset.[152] The Preamble to the Statute notes that the international community is “mindful that during this century millions of children, women and men have been the victims of unimaginable atrocities that deeply shock the conscience of humanity”.[153] Although the draft statute did not envisage victims in a significantly different position than in the ICTY Statute,[154] the efforts of non-governmental organizations representing victims’ interests at the negotiations in Rome led to a strengthened position for victims in the ICC Statute.

Thus, the ICC Statute, while obviously having the prosecution and punishment of perpetrators as its major focus, also pays special attention to the rights and interests of victims.[155] The criminal law and procedure of previous tribunals were heavily influenced by the common law adversarial process.[156] In common law systems the victim is regarded as a witness so as to serve the criminal justice system. This can be contrasted with civil law jurisdictions where the victim stands in his own right in criminal proceedings. The ICC Statute makes room for the victim in both capacities and in that sense the Statute is innovative: it is not the product of one predominant legal system and culture, but rather the result of a healthy cross-fertilisation of several legal systems and cultures.[157]

Under the Statute of the ICC and its Rules of Procedure and Evidence, victims have the right to participate in every stage of the proceedings, from the time the Prosecutor has requested authorisation to proceed with an investigation to the Pre-Trial Chamber, right through to the sentencing hearing.[158] Article 68(3) is of particular significance, where it is stated that: “[w]here the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered”.[159] Bachrach states that the Statute “consistently underscores the fact that one of the ICC’s primary purposes is to protect and vindicate the victims of the world’s most heinous crimes”.[160]

(a) Relevant Provisions of the ICC Statute

Article 64(2) of the Statute instructs the Trial Chamber to ensure that the trial is “conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses”.[161]

Article 66 states the presumption of innocence of the accused, and places the onus on the Prosecutor to prove guilt beyond reasonable doubt.

Article 67 articulates the right of the accused to “a public hearing, having regard to the provisions of this Statute”, to “a fair hearing conducted impartially”, and “to examine, or have examined, the witnesses against him or her ... ”.[162] It is important to note that the fair hearing and minimum guarantees are not subject to other provisions in the Statute. While it has been observed by Schabas that the right to examine witnesses does not necessarily amount to a full right of cross-examination as in common law systems, this apparent limit is consistent with the right to a fair trial in continental legal systems.[163]

Article 68 provides for the protection of victims and witnesses and their participation in the proceedings. Paragraph (1) includes the instruction that the Court shall take “appropriate measures” to protect victims and witnesses, but notes that these measures “shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”.[164] Paragraph (2) allows for the exception (mentioned above) to the principle of public hearings provided for in Article 67.[165]

Interestingly, Article 68, Paragraph (5), states:[166]

Where the disclosure of evidence or information... may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof”.

Rule 81, relating to restrictions on disclosure, includes in Paragraph 4, the provision that the Chamber “shall... take the necessary steps... in accordance with article 68, to protect the safety of witnesses and victims and members of their families, including by authorizing the non-disclosure of their identity prior to the commencement of the trial”.[167]

However, it should be noted that both the provision in Article 68(5) and Rule 81(4) require that “[s]uch measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”.[168] Moreover, this provision applies only prior to the commencement of the trial, and does not extend to during the trial itself.

(b) Tadić Repeated?

Although decisions of the ICTY are not binding on the ICC, they will have persuasive authority, particularly because the statutes governing the ICTY and ICC are similar. Furthermore, the provisions for the rights of the accused in both documents are based on those found in the ICCPR and ECHR. Thus interpretations of those treaty provisions will also be persuasive.[169] While it is true that these human rights instruments are not binding on non-parties (such as the ICTY and ICC), it is inconceivable that their provisions should not be respected by an international court set up to protect human rights.[170]

The decision of the majority in Tadić was reached, at least in part, because of the perceived ambiguity of the ICTY Statute. Although Stephen J’s reasoning is more compelling, it is at least conceivable that the combined concept of a “fair and public hearing” in Article 21(2) was to be subject to Article 22, which required that provision be made for the protection of victims and witnesses, notwithstanding other provisions that unqualifiedly guaranteed the right to a fair trial.[171]

By contrast, the ICC Statute is much more explicit, in that it is clearly only the right to a public hearing that is subject to other provisions in the Statute (not specifically subject to protecting the victims and witnesses). Article 67 articulates the right to a fair and impartial trial independently of any such qualification. Moreover, there are repeated references throughout the Statute to the point that measures taken in the interests of victims and witnesses must not be “prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”.

It is doubtful, given these considerations, that the decision reached by the majority in Tadić would be repeated in the ICC. Hence, in spite of the overall similarity of the two Statutes in this respect the ICC Statute is much more successful. While victims are in an enhanced position under the ICC Statute, the rights of the accused and provisions for a fair trial are also more clearly defined.

(c) The Problem with Article 65(4)

Article 65(4) provides that, where an admission of guilt has been made, and

4. Where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may:

...

(b) Order that the trial be continued under the ordinary trial procedures provided by this Statute, in which case it shall consider the admission of guilt as not having been made and may remit the case to another Trial Chamber.[172]

Schabas[173] has offered the opinion that this provision is “aimed at situations where a ‘deal’ is struck between Prosecutor and defence and where sentencing may not fully take into account the rights and interests of victims”.[174] He also states that differing philosophical approaches between common law and civil law jurisdictions led to some difficulties in laying down the rules regarding guilty pleas, especially because, unlike the common law world, under civil law systems “confession of guilt is viewed with deep suspicion and courts are expected to rule on guilt and innocence based on the evidence, irrespective of such a plea”.[175]

This may indeed account for the provision in Article 65(4)(a), which gives the court the power to require additional evidence to be adduced. However, the provision in Article 65(4)(b) goes much further than requiring additional evidence in order to determine guilt, and Schabas’ description of civil law discomfort with guilty pleas does not adequately account for the provision. Moreover, the provision directly raises many of the concerns outlined in Section I.

Just what might “the interests of the victims” be? A chance to “tell their story”? An opportunity for the accused and her crimes to be put on public display so that future generations will not forget? A variety of therapeutic and didactic functions are possibly implicit in this phrase.

Suffice to say, one cannot predict the impact that this provision might have on the Court. The words “in the interests of justice” that preface “the interests of the victims” creates some ambiguity, for the interests of justice and the interests of victims will often conflict.[176] At any rate, if the ICC is to gain credibility as an effective vindicator of human rights, it cannot afford to expose itself to the criticisms that have plagued previous war crimes trials. One of the major problems encountered by the ICTY is the reliance placed on state cooperation in order to achieve its objective of prosecuting individuals for violations of international humanitarian law. Like the ICTY, the ICC also has no police force of its own and must rely on state cooperation if it is to arrest indicted individuals. [177] It is vital then that the ICC does not deviate from standards of ultimate justice and fairness; to do so would surely deter states from cooperating.

IV. Conclusion

The ICC has the potential to advance the cause of human rights by ensuring that those who commit grave breaches are prosecuted if national courts are unable to do so.[178] If the ICC is to take its place as the ultimate arbiter of human rights, it must fervently guard against the possibility that it might itself violate these human rights, by ensuring that it does not compromise its obligation to do justice, even for the “noblest of ulterior purposes”.[179]

A show trial is anathema to the concept of the rule of law. In spite of the views of those who argue that a pedagogic spectacle is a justified function of a war crimes trial, the view presented in this article is that while such functions will likely always be by-products of a criminal trial, they cannot be its primary purpose. If the aim is something other than justice, justice is unlikely to result.

If one accepts that the purpose of the ICC is the effective prosecution of individuals responsible for the gravest breaches of international humanitarian law, then the biggest threats by far to the effectiveness of the ICC are political. It is possible that the permanent status and established jurisdiction of the ICC may have some effect on the allegations of partiality and selectivity that have plagued previous war crimes trials.[180] However, it would be naïve to imagine that political considerations will not affect, to some degree, the Court’s ability to prosecute persons who have committed crimes within its jurisdiction. The ability of the Security Council to indefinitely postpone an investigation[181] is but one illustration of the potential reach of politics.[182] Lack of state cooperation, even in defiance of the ICC, is another potential problem that must be contemplated.

The German lawyer, Niemeyer, remarked in the 1930s that international law is an edifice built on a volcano - state sovereignty.[183] Cassesse elaborates further that:[184]

[W]henever state sovereignty explodes onto the international scene, it may demolish the very bricks and mortar from which the Law of Nations is built. It is for this reason that international law aims to build devices to withstand the seismic activity of states: to prevent or diminish their pernicious effect. This metaphor is particularly apt in relation to an international tribunal. The tribunal must always contend with the violent eruptions of state sovereignty: the effect of states’ lack of cooperation is like lava burning away the foundations of the institution.

The Statute of the ICC, while by no means perfect, has the potential to “withstand the seismic activity” of states seeking to interfere with its task. Whether it is able to do so may be dependent on the determination of the Court to interpret its Statute strictly, and above all is dependent on the willingness of the Court’s members to manifestly display a commitment to human rights.

In the sphere of international law, it is important to maintain a sense of realism that is not cynical, and an idealism that is not naïve. There will always be limits posed by international politics on international law. Simpson notes that “[t]oo often, each new development has been hailed as the harbinger of justice and global harmony.”[185]. In the absence of human perfection, crimes against humanity will not cease, no matter how effective the ICC proves to be. Yet it is a beginning. As Cesare Beccaria stated as long ago as 1764, “the conviction of finding nowhere a span of earth where real crimes were pardoned might be the most efficacious way of preventing their occurrence”.[186]

Coda

As of 14 July 2003, 91 countries have ratified the Rome Statute of the International Criminal Court,[187] including New Zealand (which on 7 September 2000 became the seventeenth state party to ratify the Statute).[188] Between 3 and 7 February 2003, the Resumed Session of the First Assembly of States Parties elected the first eighteen judges to serve on the ICC.[189] The judges are broadly representative of the ICC’s member states, hailing from: Trinidad & Tobago; France; Cyprus; Costa Rica; Samoa; Republic of Korea; Ireland; Mali; United Kingdom; Brazil; South Africa; Germany; Italy; Ghana; Canada; Bolivia; Finland, and Latvia.[190] To date there are no cases before the ICC.


[*] BA/LLB. This article was written in October 2002. I would like to thank Treasa Dunworth, (Lecturer in Law, University of Auckland) whose support and encouragement was invaluable, and without whom this article would never have been written.

[1] Simone Weil, 1909 – 43, French essayist and philosopher, Ecrits Historiques et politiques (1960) ‘Reflexions sur la barbarie’ (written c. 1939).

[2] Brzezinski, Out of Control (1993) 17.

[3] McCormack, “From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime” in McCormack and Simpson (eds), The Law of War Crimes (1997) 31.

[4] Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9 [“Rome Statute”]

[5] http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty10.asp (at 2 October 2002) Aside from the 139 signatures, as of 19 September 2002, 81 states had ratified to become state parties to the treaty.

[6] Unless otherwise indicated, the term “war crimes” in this article is intended in a generic (rather than technical) sense, to include war crimes, crimes against humanity, genocide, crimes against peace, etc.

[7] It is beyond the scope of this paper to inquire into what the most appropriate course of action might be in the wake of mass atrocity. For an excellent discussion of the pros and cons of a variety of modes of “management”, see Minow, infra note 55.

[8] Simpson, “War Crimes: A Critical Introduction” in McCormack and Simpson (eds) supra note 3 (1997) 5.

[9] Ibid 6. See for example the infamous U.S. v. Calley, 46 C.M.R. 1131 (1971), aff’d, 22 U.S.C.M.A. 535, 48 C.M.R. 19 (1973). Calley’s case was heard on appeal in United States Federal courts, but the initial trial was a court martial.

[10] Ibid 8.

[11] Arendt, Eichmann in Jerusalem (Revised ed, 1964) 253.

[12] Prosecutor v Tadić, No. IT-94-I-T (10 Aug 1995) (Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses) http://www.un.org/icty/tadic/trialc2/decision-e/100895pm.htm (at 2 October 2002) [“Tadić”].

[13] In reality, it was not truly ‘international’ but made up of the more powerful of the Allied States.

[14] Chief American Prosecutor at Nuremberg.

[15] Justice Robert Jackson, Opening Address to the International Military Tribunal at Nuremberg, 21 November 1945.

[16] Simpson, supra note 8, 2.

[17] This categorisation owes much to Simpson, supra note 8. However, it should be noted that the criticisms of war crimes trials are numerous – the selection covered in this paper is merely illustrative and far from exhaustive.

[18] Simpson, supra note 8, 13.

[19] Ibid.

[20] Now considered to be the hallmark of Nuremberg.

[21] Despite the fact that the ICTY in Prosecutor v Tadić (Opinion and Judgment, IT-9-1-T, 7 May 1997) stated, at paragraph 623, that “[i]t is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict”. A reading of the literature in this area illustrates that it is by no means “settled” that this is so.

[22] Meltzer, “Remembering Nuremberg” in Cooper (ed), War Crimes (1999) 25.

[23] Teitel, “Nuremberg and Its Legacy, Fifty Years Later” in Cooper (ed), ibid 46.

[24] Maguire, “Nuremberg: A Cold War Conflict of Interest” in Cooper (ed), ibid (1999) 68.

[25] In re Yamashita[1946] USSC 27; , 327 U.S. 1, 81 (1946) (Rutledge J dissenting, Murphy J concurring). The trials at Tokyo were far more military in nature than Nuremberg. They were also conducted by General MacArthur, who made no secret of his hatred of “Japs”, speeded up the trial, and decided to have Yamashita hanged even before two dissenting opinions had arrived from the Supreme Court.

[26] See Prévost , “Race and War Crimes: The 1945 War Crimes Trial of General Tomoyuki Yamashita” (1992) 14 Hum Rts Q 303, 317-318.

[27] Takaaki, “Bungakusha to Senso Sekinin nit suite, quoted in Buruma, infra note 28, 165.

[28] Buruma, The Wages of Guilt (1st Ed 1994) 165.

[29] Douglas, The Memory of Judgment (2001) 2.

[30] Ibid 111.

[31] Osiel, Mass Atrocity, Collective Memory, and the Law (1997) 43.

[32] This question will be discussed in Part 5 below.

[33] Simpson, supra note 8, 8.

[34] Briefly outlined in Part 1 above.

[35] Many more (approximately 130,000) victims of Hiroshima and Nagasaki died during the next five years, and more have also suffered from long-term effects of the atomic explosions.

[36] Simpson, supra note 8, 5.

[37] Ibid.

[38] See ibid 25, where it is noted that academics often denounce war crimes committed by ideological enemies but ignore similar crimes committed by ideological friends.

[39] Ibid 10.

[40] Ibid.

[41] Teitel, supra note 23, 50. For discussion of the illegal nature of the United States’ occupation of Germany, see Freidrich, “Nuremberg and the Germans” in Cooper (ed) supra note 22, 87. The United States’ illegal acts included contravening the Hague laws for occupiers, which limit an occupier’s interference in domestic affairs to acts that secure its military position. The United States instead embarked on an intense “punishment, purge and re-education program”, prohibiting elections, and installing its own hand-picked “German leaders”.

[42] Justice Robert Jackson, quoted in Buruma, supra note 28, 145.

[43] Maguire, supra note 24, 67.

[44] Ibid, 68.

[45] Although, undoubtedly, some of them were. See ibid 26.

[46] Such as ‘parole hearings’ the outcomes of which outcomes were dictated straight from Washington.

[47] Orentlicher, “A Half Century of Silence: The Politics of Law” in Cooper (ed) supra note 22, 107-108.

[48] Kritz, “War Crimes Trials: Who Should Do Them – and How” in Cooper (ed) supra note 22,169.

[49] Rosenberg, “Tipping the Scales of Justice” in Cooper (ed) supra note 22, 290.

[50] Arendt, supra note 11, 253.

[51] Ibid.

[52] Mertus, “Only a War Crimes Tribunal: Triumph of the ‘International Community,’ Pain of the Survivors” in Cooper (ed), supra note 22, 230.

[53] Ibid 233-234.

[54] Ibid 234.

[55] Minow, Between Vengeance and Forgiveness (1998) 58.

[56] Arendt, supra note 11, 260-261.

[57] Presiding Judge Moshe Landau, cited in ibid 209.

[58] Ibid 209.

[59] Mertus, supra note 52, 229-230.

[60] Ibid 242.

[61] Buruma, supra note 28, 142.

[62] Arendt, supra note 11, 253.

[63] Marrus, The Holocaust in History (1987) 4-5.

[64] Ferencz, “Nuremberg: A Prosecutor’s Perspective” in Cooper (ed), War Crimes (1999) 32.

[65] Simpson, supra note 8, 20.

[66] Michael Marrus, quoted in Eviatar, “The Show Trial: A Larger Justice?” The New York Times on the Web, New York, USA, 20 July 2002 http://www.nytimes.com/2002/07/20/arts/20TRIA.html?todaysheadlines (at 18 August 2003).

[67] Buruma, supra note 28, 152-153.

[68] Simpson, supra note 8, 21.

[69] Ibid 22.

[70] Ibid 23.

[71] Ibid.

[72] Ibid.

[73] Ibid.

[74] Douglas, supra note 29, 2.

[75] Ibid.

[76] See Ibid chapters 2 and 3.

[77] Ibid 102.

[78] Ibid 175.

[79] Ibid 4.

[80] Ibid 260.

[81] Osiel, Supra note 31, 2.

[82] Ibid 65.

[83] Ibid 141.

[84] Douglas, supra note 29, 111-112.

[85] For example, Robert Cover and James Boyd White are among this school of thought. Narrative jurisprudence “understands law as a vital cultural discourse through which social narratives are structured and suppressed and through which normative meaning is defined and contested”. Quoted in Ibid 112.

[86] Hutchinson and Monahan, "Law, Politics and the Critical Legal Scholars: the Unfolding Drama of American Legal Thought" (1984) 36 Stanford L Rev 199, 206.

[87] Anleu, Law and Social Change (2000) 65.

[88] Herzog, “As Many as Six Impossible Things Before Breakfast:” (1987) 75 Cal L Rev 609.

[89] Ibid 614.

[90] Ibid 626.

[91] Ibid.

[92] Ibid 627.

[93] Douglas, supra note 29, 4.

[94] Simpson, supra note 8, 21.

[95] Ibid 22.

[96] Röling, “Criminal Responsibility for Violations of the Laws of War” 12 Revue Belge de Droit International (1976) 8, quoted in Cassesse, “On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law” http://www.ejil.org/journal/Vol9/No1/art1-05.html#p72_23046 (at 14 July 2003).

[97] Arendt, supra note 11, 5.

[98] Supra note 12.

[99] The Security Council represents the international community in that its power to maintain international peace and security has been ceded to it by the member states of the United Nations.

[100] Orentlicher, supra note 47, 111.

[101] Cooper, “Introduction to Part II” in Cooper (ed), supra note 22, 115.

[102] van Boven, “The Position of the Victim in the Statute of the International Criminal Court” in von Hebel, et al (eds), Reflections on the International Criminal Court (1999) 80.

[103] Ibid.

[104] Statute of the International Criminal Tribunal for the Former Yugoslavia http://www.un.org/icty/basic/statut/stat2000.htm (at 12 October 2002)

[105] van Boven, supra note 102, 81.

[106] McDonald, “The Role of Victims and Witnesses in International Criminal Trials” in Yepes-Enriquez and Tabassi (eds), Treaty Enforcement and International Cooperation in Criminal Matters (2002) 260.

[107] Quoted in Prosecutor v Tadić, , infra note 135.

[108] Ibid.

[109] For a detailed description of the specific guarantees of a fair trial recognized by international law, see Stapleton, infra note 111.

[110] It is also debateable whether the right to a fair trial exists as part of customary international law.

[111] Stapleton, “Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation” (1999) 31 NYU J Int’l L & Pol 535, 548.

[112] Trindade, “The Right to a Fair Trial Under the Inter-American Convention on Human Rights” in Byrnes (ed), The Right to a Fair Trial in International and Comparative Perspective (1997) 11.

[113] Tadić, supra note 12, [20].

[114] Ibid.

[115] Ibid [23].

[116] Although the ICTY was not created by treaty, but by the Security Council, the court considered that there was justification to apply treaty law to the interpretation of the ICTY statute.

[117] Article 31, Vienna Convention on the Law of Treaties. The Convention was adopted on 22 May 1969 and opened for signature on 23 May 1969 by the United Nations Conference on the Law of Treaties. The Conference was convened pursuant to General Assembly resolutions 2166 (XXI) of 5 December 1966 and 2287 (XXII) of 6 December 1967. The Conference held two sessions, both at the Neue Hofburg in Vienna, the first session from 26 March to 24 May 1968 and the second session from 9 April to 22 May 1969 http://www.un.org/law/ilc/texts/treaties.htm (at 2 August 2003).

[118] Stapleton, supra note 111, 562.

[119] Tadić, supra note 12, [27].

[120] Ibid [30].

[121] McDonald, supra note 106, 263.

[122] Tadić, supra note 12, [28].

[123] Law Reports of Trials of War Criminals, vol. XV, 198 (1949), quoted in ibid. Emphasis added.

[124] Simpson, supra note 8, 15.

[125] Tadić, supra note 12, [54].

[126] Ibid [55].

[127] Ibid.

[128] Ibid [60].

[129] Ibid [61].

[130] See Stapleton, supra note 111, for a discussion of the national emergency exception.

[131] Tadić, supra note 12, [62].

[132] Ibid [63]. Surely, however, the opposite ought to be true? If the testimony is desperately needed for a conviction, the defendant should have an even greater interest in ensuring the veracity of that testimony.

[133] Ibid [64].

[134] Ibid [65].

[135] Stapleton, supra note 111, 567.

[136] Prosecutor v Tadić, No. IT-94-I-T (10 Aug 1995) (Separate Opinion of Judge Stephen on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses) http://www.un.org/icty/tadic/trialc2/decision-e/50810pmn.htm (at 2 October 2002) [“Tadić dissent”].

[137] Ibid.

[138] Ibid.

[139] Ibid.

[140] Ibid.

[141] Kostovski Case, 166 Eur Ct H R (ser A) 4 (1989).

[142] Ibid 21.

[143] Tadić dissent, supra note 135.

[144] Stapleton, supra note 111, 568.

[145] Furthermore, it has also been argued that limiting the right of an accused to confront his or her accuser reverses the presumption of innocence, another fundamental right guaranteed by the ICCPR. See Stapleton, supra note 111.

[146] Ibid 573.

[147] Ibid 569-570.

[148] Ibid 569.

[149] Ibid.

[150] The United States, arguably the world’s greatest military power, has not only refused to sign the Rome Statute, it has attempted to contract with other states to ensure that any United States citizens who commit crimes that fall under the Court’s jurisdiction will not be brought before the Court. Fortunately, most states have resisted the pressure to enter into such contracts.

[151] This has received remarkably little attention in the literature.

[152] McDonald, supra note 106, 271.

[153] Rome Statute, supra note 4, Preamble.

[154] van Boven, supra note 102, 82.

[155] Ibid 77.

[156] Ibid 88.

[157] Ibid.

[158] McDonald, supra note 106, 272.

[159] Rome Statute, supra note 4, Article 68(3). Emphasis added.

[160] Bachrach, The Protection and Rights of Victims under International Ciminal Law, 34 The International Lawyer (2000), 7, quoted in McDonald, supra note 106, 271.

[161] Rome Statute, supra note 4, Article 64(2). Emphasis added.

[162] Ibid Article 67. Emphasis added.

[163] Schabas, An Introduction to the International Criminal Court (2001) 126.

[164] Rome Statute, supra note 4, Article 68(1).

[165] Ibid Article 68(2).

[166] Ibid Article 68(5). Emphasis added.

[167] Rule 81, Rules of Procedure and Evidence http://www.icc-cpi.int/docs/basicdocs/rules(e).html (at 2 August 2003).

[168] Ibid Article 68(5).

[169] Stapleton, supra note 111, 570-571.

[170] Schabas, “Sentencing by International Tribunals: A Human Rights Approach” (1997) 7 Duke J Comp & Int’l L 461, 467, quoted in ibid, 573.

[171] For example, Article 21(4), supra note 104, which sets out the unqualified minimum guarantees of the right to a fair trial, including the right to examine witnesses.

[172] Rome Statute, supra note 4, Article 65(4). Emphasis added.

[173] Schabas seems to be the only author to mention this provision at all – even here, the topic occupies only about three sentences.

[174] Supra note 163, 149.

[175] Ibid 124.

[176] Refer to Section I Part 3 for a discussion of victim interests and justice.

[177] Cassesse, “On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law” http://www.ejil.org/journal/Vol9/No1/art1-06.html (at 18 August 2003).

[178] Rome Statute, supra note 4, Article 17(1)(a) reads “... unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”.

[179] Arendt, supra note 11, 253.

[180] In addition, the fact that, for the most part, judges may not be re-elected may go some way to minimising political influence on decision-making. Rome Statute, supra note 4, Article 36(9)(a).

[181] Rome Statute, supra note 4, Article 16.

[182] This, however, is far less threatening than the position sought by the United States, whereby it would not have been possible for the ICC to prosecute without the consent of the Security Council. A provision such as this would have effectively rendered the Court impotent, as veto powers could be exercised to prevent prosecution of friends or allies of any of the permanent five.

[183] Niemeyer, Einstweilige Verf_gungen des Weltgerichtshofs, ihr Wesen ind ihre Grenzen (1932), 3, cited in Cassesse, supra note 176, http://ejil.org/journal/Vol9/No1/art1-07.html (at 18 August 2003).

[184] Ibid.

[185] Simpson, supra note 8, 29

[186] Beccaria, “Dei delitti e delle pene”, translated in Farrar, Crimes & Punishment (1880) 193-4, quoted in Cassesse, supra note 177, http://ejil.org/journal/Vol9/No1/art1-08.html (at 18 August 2003).

[187] International Criminal Court, States Parties http://www.icc-cpi.int/php/statesparties/allregions.php (at 20 July 2003)

[188] International Criminal Court, New Zealand http://www.icc-cpi.int/php/statesparties/country.php?id=49 (at 20 July 2003).

[189] International Criminal Court, Chronology of the International Criminal Court http://www.icc-cpi.int/php/whatistheicc/chronology.php (at 20 July 2003).

[190] International Criminal Court, Judges Biographical Notes http://www.icc-cpi.int/chambers/judges.php (at 20 July 2003).


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