Jus Post Bellum: The Importance of War Crimes Trials
Kellogg, Davida E., Parameters
"Three periods must be distinguished with respect to every war: its inception; its prosecution, before victory is gained; and the period after victory."
-- Francisco Suarez
On 13 November 2001, President George W. Bush, in his capacity as Commander-in-Chief, issued an order that would allow suspected foreign terrorists to be tried by US military tribunals. (1) At the time, Secretary of Defense Donald Rumsfeld stated that he had not yet had a chance to fully research the legal and practical ramifications of implementing such proceedings. But resort to military tribunal, which has a long history of customary use in the United States dating back to the American Revolution (see Madson v. Kinsella, 1952), has been considered by the Supreme Court (Ex Parte Quinn, 1942; Application of Yamashita, 1946), and ruled to be an appropriate venue for the trial of non-citizen belligerents accused of offenses against the law of war. It is the considered opinion of many military legal experts that the Supreme Court would affirm the constitutionality of such use of military commissions in the context of the current war on terrorism, together with the rules for them promulgated by Secretary Rumsfel d, if and when this question ever comes before it. (2) Nevertheless, the issue of military commissions is already on trial in the court of public opinion, where it is widely assumed that the projected effects of this order on American security and civil liberties will be largely negative. (3)
Even before the events of 11 September 2001 provided the impetus for the President's order, the apprehension of Slobodan Milosevic had already brought our role in international war crimes tribunals into question. (4) Arguments against our participation in such proceedings have been advanced to the effect that it is disingenuous to imagine that the rule of law applies to warfare; that war crimes tribunals serve only to enforce "victor's justice" on those whose only real crime was having had the bad moral luck to be raised in a society that approved of genocide and other crimes against humanity, or to have served in a military that engaged in war crimes; that war crimes "show trials" cannot undo past wrongs, nor can laying blame further peace and reconciliation; that international jurisdiction over war criminals threatens national sovereignty; and that trumped-up charges and unfair trials in "kangaroo courts" might be used as a means for disgruntled weaker nations to take out their resentments on the soldiers o f more powerful ones.
In essence, these objections break down into arguments that war crimes trials are either philosophically or procedurally flawed, or impracticable. Some of these objections, like those based on cultural relativism, the supposed impossibility of imposing the rule of law on warfare, or "bad moral luck" are specious. Others, like concerns for sovereignty and the fairness of both accusations and judgments handed down by war crimes tribunals, raise serious legal and practical concerns, but do not necessarily constitute sufficient reason for us to categorically absent ourselves from these proceedings. I argue, to the contrary, that the meting out of punishment for crimes against humanity and war crimes, whether in international tribunals or in our own civil courts, courts-martial, or military tribunals, is in fact the natural, logical, and morally indispensable end stage of Just War. If Just War is undertaken to right wrongs done by a group or groups of people to another--if in fact the only acceptable reason for go ing to war is, as Michael Walzer (5) and other Just War theorists contend, to do justice--then stopping short of trying and punishing those most responsible for war crimes and crimes against humanity which either led to war or were committed in its prosecution may be likened to declaring "checkmate" and then declining to take your opponent's king. …