"All sorrows can be borne if you put them into a story or tell a story
about them." The story reveals the meaning of what otherwise would
remain an unbearable sequence of sheer happenings .... All her
stories are actually "Anecdotes of Destiny," they tell again and again
how at the end we shall be privileged to judge . . . .(1)
I had dreamed, we had always dreamed, of something like this, in the
nights at Auschwitz: of speaking and not being listened to, of finding
liberty and remaining alone. After a while I remained alone with the
lawyer; a few minutes later he also left me, urbanely excusing
During the trial of Adolf Eichmann in Jerusalem in 1960, Hannah Arendt's moral certainty about both the defendant's unsurpassable evil and the rectitude of the trial itself gave way to a debilitating array of jurisprudential doubts, ethical quandaries and emotional ambivalence.(3) For Arendt, what began with some excitement as "'an obligation I owe my past'"(4) was transformed into a feeling that "'[t]he whole thing is stinknormal, indescribably inferior, worthless.'"(5) Fourteen years earlier, in 1946, when a team of six army lawyers was appointed defense counsel for the Japanese General Yamashita prior to his trial for war crimes in the Philippines, these lawyers were indignant.(6) For them, Yamashita was the ultimate war criminal, a man responsible for the dreadful and literally indefensible atrocities that had taken place in Manila at the end of the war. Slowly, however, Yamashita was transformed in their eyes from the "Beast of Bataan" to an innocent victim of American injustice. This perception of injustice took them, at some risk to their careers, to the Supreme Court.(7) There, Supreme Court Justice Murphy, in a moving dissent, described Yamashita's trial as the "uncurbed spirit of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander."(8) Yamashita was hanged, but thirty years later defense counsel and legal experts continue to assert his innocence.(9)
Similar ambiguities have attended more recent war crimes prosecutions. The trial and subsequent acquittal of John Demjanjuk in Israel(10) forced a review of U.S. Department of Justice extradition procedures. In Australia, the acquittal of Ivan Polyukhovich led to the disbanding of the Special Investigations Unit and its successor, the War Crimes Prosecutions Support Unit.(11) Even successful prosecutions cause cultural upheaval and unease. For example, Klaus Barbie was put on trial and eventually convicted of having committed crimes against humanity in 1944 in occupied France.(12) His trial, however, became an ordeal for the French nation. At times, France itself appeared to stand beside Barbie as a codefendant accused of having collaborated with the Nazis during the occupation, or of having carried out crimes against humanity in Algeria during the colonial struggle there.(13) Finally, even Nuremberg, the war crimes trial par excellence, is shadowed by its morally and legally defective twin at Tokyo by the continuing sense that here, again, was victor's justice, and by the spectral presence of those crimes against humanity left unpunished since.
This journey from certainty to doubt may be the price paid by all those who examine individual war crimes trials critically and closely. The accused is often monstrous, sometimes banal, but always human.(14) The trials are most often well-intentioned, occasionally transformative, but always fraught with the gravest moral implications for the accusers. Meanwhile, the law usually is an accomplice to ideology, sometimes an enemy of justice, and always the narrator of a series of complex and deeply ambiguous stories.
In this Article, some of the philosophical, cultural and jurisprudential dimensions of war crimes trials and international criminal law generally will be explored.(15) Also, some of the rationales advanced for war crimes trials both in international and domestic law, the philosophical doubts surrounding such trials and, finally, their historical and political significance will be considered.(16) While this Article is predominantly critical of the war crimes experience since 1945, the purpose of the Article is constructive. Ultimately, this Article argues that an international war crimes regime founded on a concern for consistency, legality and impartiality would be a valuable addition to the international legal system.(17)
The major part of this Article considers four serious difficulties with the concept of war crimes trials and international criminal law generally.(18) These are grouped, somewhat artificially, under the headings of partiality, legality, definitions of criminality and law as history. A number of questions are asked, such as what conception of justice is being pursued here? Is there a notion of individual responsibility or state responsibility common to these various war crimes regimes? Or is it that a diffuse set of standards is being affirmed throughout these cases? What messages are being transmitted from the courtroom to the wider society in a war crimes trial? Is the didactic function of a war crimes trial compatible with its judicial role? And, finally, what are the juridical consequences of the fact that while some war criminals are prosecuted, most are not?
Also examined is the possibility of rehabilitating the idea of "war crimes" sufficiently for them to play the historical role of morality plays; i.e., the stories of destiny and justice that Arendt speaks of in the quotation that begins this essay.(19) In the final section, the question of whether war crimes trials as a legal genre can be justified in the face of these objections and on what grounds will be evaluated.(20) The question in the end becomes not whether we are privileged to judge but whether we have the tools, the capacity and the will to do so consistently and fairly.
II. WAR CRIMES TRIALS: SOME PROBLEMS
A. The Problem of Partiality
On August 8, 1946, the Allies signed the London Charter establishing an international tribunal to try the major German war criminals.(21) This was to presage a new era in which the requirements of justice and the concerns of universal human rights were to guide the conduct of international relations. Acts of criminality during war were declared intolerable and the wholesale destruction of civilian populations was condemned as a crime against humanity.(22) On the same day in 1945, the United States dropped its second atomic bomb on Japan, devastating the city of Nagasaki and immediately killing at least 70,000 of its largely civilian inhabitants.(23) The history of war crimes is a history suffused with irony, but the conjunction of these two acts (one, a manifesto declaring the subordination of force to law, the other, an unprecedented act of violence contrary to a basic requirement of the laws of war),(24) is perhaps the most tragically ironic of all. For some observers, Nagasaki is viewed as the symbol of the death of an idea at its birth: the idea of universal application of international criminal law to all offenders regardless of affiliation, status or nationality. Systematic and consistent regulation of international crime remains chimerical despite the efforts of the International Law Commission and various publicists.(25)
In the absence of a uniform and global approach, the trials of war criminals have generally occurred only where defeat and criminality coincide. This was undoubtedly the case at Nuremberg and Tokyo. The phrase "victor's justice" as applied to such trials is by now a truism. The victorious allied powers tried their German and Japanese adversaries without considering the possibility of applying these same laws to their own war-time behavior. There is little doubt that some allied actions would have proved amenable to the laws of Nuremberg even if the jurisdictional and political barriers to prosecution were inevitably insurmountable. Indeed, the defense attorneys at Nuremberg invoked the tu quoque principle several times pointing, for example, to the bombing of Dresden as evidence that the Allies had not come to Nuremberg with clean hands. The most successful use of this argument occurred in the case of Admiral Donitz who argued, with some justification, that the "crime" of failing to pick up enemy survivors of submarine attacks was in fact the policy of U.S. forces in the Pacific under the command of General Nimitz.(26)
Regardless of how well-founded these tu quoque objections are, it is important to recognize that the Nuremberg and Tokyo proceedings are not typical of war crimes initiatives before or since. If they are models of "victor's justice," they are not models of war crimes trials generally. There are several respects in which this is true. First, the classical war crimes trials both prior to and since 1945 have generally occurred in domestic settings under national rather than international law. For example, in 1919 German nationals were tried in Leipzig under German law for crimes committed during World War I.(27) Here, the defeated themselves prosecuted and tried their fellow nationals, though with little zeal. Similarly, national legislation has been used to bring to trial war criminals in France (Barbie and Touvier), Australia (Polyukhovich), Turkey (the trial of those accused of having committed genocide against the Armenians in 1921), Israel (Eichmann and Demjanjuk), Canada (Finta) and Germany (both immediately following World War II and more recently in the case of Yugoslav war criminals).(28) Each of these cases is at best an equivocal illustration of the "victor's justice" criticism. In some instances, the link between the accusers and the accused is just barely a victor/vanquished relationship. This is the case with the Australian trials of former Baltic nationals and it is certainly true of the Israeli trials where the relationship becomes exceedingly complex. In the Eichmann trial it was the defense that argued that the trial did not represent "victor's justice" because Israel had not been in existence during World War II, and, furthermore, had yet to come into existence when the alleged crimes took place. This, according to Eichmann's attorney, broke the jurisdictional link between Israel and the accused.(29) Touvier, Finta and Polyukhovich were each tried by their own State in an exercise of, primarily, territorial jurisdiction very different from the trials at Nuremberg, which took place under universal jurisdiction and international law.(30)
There is another sense in which the Nuremberg model is misleading. The vast majority of cases in which sanctions are imposed on violators of the laws of war take place under military jurisdiction. This is yet another irony of the area--that, for all their supposedly educative function, most war crimes trials are confidential and usually remain so.(31) Here again, winners and losers alike try their own military personnel for breaches of the laws of war or war crimes.(32) The most notorious of post-1945 trials, that of Lieutenant Calley, took place initially under martial law, and on appeal was heard only in U.S. federal courts.(33) The use of martial law is both unsurprising and perfectly appropriate in many circumstances. The Geneva Conventions and Protocols envisage sanctions along these lines in cases of war crimes or grave breaches of their provisions.(34) Similarly, in the absence of a permanent international penal tribunal, the Genocide Convention permits domestic enforcement of the Convention against both nationals and aliens on a territorial basis.(35)
Finally, even in the area of international criminal law where Nuremberg is thought to serve as an exemplar, the "victor's justice" model is unhelpful and inaccurate. The three mayor initiatives in this area since Nuremberg each involve the creation of tribunals designed to try war criminals generally, rather than defeated war criminals specifically.(36) The much-vaunted Tribunal for the Former Yugoslavia has jurisdiction over all the adversaries in the Balkans conflict.(37) Indeed, even if one does regard the Tribunal as essentially directed at the Serbs, it is impossible to conceive of them as the vanquished in this conflict.(38) The same is true for the Rwanda Tribunal designed to punish both Hutus and Tutsis who are guilty of crimes against humanity and crimes of genocide.(39) These tribunals are different from the Nuremberg and Tokyo courts in another significant, related way. Neither the conflict in the former Yugoslavia nor the war in Rwanda are as unambiguously international in dimension as World War II. The Rwandan tragedy was essentially a civil armed conflict which the Security Council has deemed a threat to international peace and security.(40) In the case of the former Yugoslavia, the Tribunal has jurisdiction over crimes committed when the general conflict was civil, and retains jurisdiction over crimes committed in the ongoing civil war in Boenia-Herzegovina.(41) The proposed international criminal court makes no distinction between a war's winners and losers, and is designed to be operative during times of peace when such distinctions are meaningless.(42)
The remainder of this Part discusses a problem of partiality which goes much deeper than the mere invocation of the "victor's justice" argument and is not restricted to the Nuremberg or Tokyo trials, nor to cases where the line between the victorious party and the defeated party is clear. In the sphere of international criminal law there is a repeated tension between the retributive urge and the realist demand, between the necessary and the possible, the visceral and the pragmatic.(43) Each new atrocity brings in its wake a fresh call for war crimes prosecutions. This, in turn, is routinely met with reluctance and caution from those with the power to set in motion the mechanics of such a trial. Justice and diplomacy are engaged in a perpetual pas de deux over whether to prosecute or rehabilitate. Only an unexpected confluence of events leads to the establishment of such tribunals. One need only think of the apparent inevitability of prosecutions of Khmer Rouge leaders in Cambodia or the Iraqi military elite following the Gulf War and the ultimate decision not to hold these trials as examples of the unexpected results of this conflict. Ultimately, war crimes law will be hostage to realpolitik whether it be the need to negotiate with the Khmer Rouge or the desire to maintain a strong anti-clerical government in power in Baghdad. This will always occur and will leave war crimes law, as practiced through the creation of ad hoc tribunals, open to accusations of bias, selectivity and partiality. In anarchical societies, like the international legal order, powerful private and state interests will not readily yield to the dictates of legality. The price of peace must often be a promise not to begin war crimes proceedings.(44) Therefore, each war crimes trial is an exercise in partial justice to the extent that it reminds us that the majority of war crimes remain unpunished. If Yugoslavia, why not Somalia; if Rwanda, why not Guatemala?
This area of law is partial and selective in other less obvious ways. War crimes jurisprudence generally--that is, the practice of courts and tribunals since 1945--reveals an obsession with the trial and punishment of Nazi war criminals. This bias may have a number of explanations, but it is particularly curious given the absence of any prosecutions involving Japanese war criminals after 1947 (it is significant, in this regard, that the Tokyo trials themselves have almost disappeared from history).(45)
Most of the war crimes trials held since 1945 have been a restatement of this relationship. The Nazi regime remains the epitome of absolute evil in Western culture, and each successive war crimes trial owes as much to this doctrine as to the tenacious efforts of Nazi hunters like Beate Klarsfeld and …