Academic journal article Texas International Law Journal

Judging War Criminals

Academic journal article Texas International Law Journal

Judging War Criminals

Article excerpt

Judging War Criminals: The Politics of International Justice, by Yves Beigbeder. Adjunct Professor, Webster University, Geneva, Switzerland. Foreword by Professor Theo van Boven.

Is the creation of international law only an intellectual and diplomatic exercise devoid of practical effect? Is international humanitarian law just a dream entertained by wishful thinking international lawyers and idealists who think that a ratified convention will be respected by a fighting army or by guerillas? Do those who promoted, initiated, and drafted these instruments, those diplomats who approved the final text, really believe that those governments which ratified these instruments will really apply them?1

With these questions, posed toward the end of his book, Judging War Criminals, Yves Beigbeder restates the fundamental issues that have confronted public international law, especially those branches of it concerned with the laws of war and armed conflict, throughout history. Can the rule of law be upheld in this context? If so, how, and by whom? These issues extend back to Grotius and beyond, and Beigbeder makes it painfully clear that, while we have become better at paying lip service to the rule of law since Grotius' time, we are little closer to making it a practical reality.

Where one stands on these issues is, first and foremost, a philosophical question. It is not necessarily an indictment of international law to recognize that it may be a specialized arm of international politics and diplomacy and, therefore, must conform to the boundaries of those disciplines rather than those of domestic jurisprudence. Nor is it necessarily an indictment of one's idealism or aspirations to entertain a certain skepticism about the enforcement of international criminal and humanitarian law in international courts.

It is not, as I think Beigbeder is wont to assume, only the perpetrators and their supporters who resist the idea of a preeminent criminal jurisdiction that encroaches substantially on traditional notions of state sovereignty. There are thoughtful people in all countries who are thoroughly opposed to war crimes, crimes against peace, and crimes against humanity, but who nonetheless feel that an overarching international jurisprudence is not the only way to proceed. And then, of course, there are the perpetrators and their supporters, who oppose the idea because of their own personal interest in avoiding justice and being at liberty to commit further crimes. This is a complex and ever-shifting scene.

Before going further, I must take a moment to disclose a professional interest of my own. At the time of writing, I am serving as appellate counsel (I did not appear at trial) for an accused who was convicted of serious crimes by a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY).2 Some of the issues raised by the appeal go to the heart of the jurisdiction of the ICTY and illustrate what those on our side of the case perceive to be its barely-concealed determination to create a radical new body of judge-made law. If successfully established, this new law will effectively eliminate the distinction between international and internal conflicts, and change quite radically the existing posture of public international law on the issue of state sovereignty. Despite my involvement in the case as an advocate, I have done my best to write objectively.

Beigbeder's work is very impressive for two reasons. First, the book is written with a simplicity and directness to which only a writer with a profound knowledge of his field can aspire. Beigbeder, a veteran in the work of international organizations, succeeds admirably in describing the historical development of international humanitarian and international criminal law from the older field of the law of war. He chronicles the very tentative history of this endeavor from medieval times to the 19th century, the beginnings of the modern quest for international criminal justice at Nuremberg and Tokyo, the attempts to set up more representative judicial bodies in the ICTY and the International Criminal Tribunal for Rwanda (ICTR), the proposed permanent International Criminal Court (ICC), and the quasi judicial experiments of the South African and South American Truth and Reconciliation Commissions. …

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