International War Crimes & Other Criminal Courts: Ten Recommendations for Where We Go from Here and How to Get There - Looking to a Permanent International Criminal Tribunal
Aronofsky, David, Denver Journal of International Law and Policy
I am especially pleased to participate in the 2005 Sutton Colloquium, "Protecting Human Rights: A Global Challenge." When Professor Nanda initially contacted me about this opportunity, we discussed what I might contribute and we decided it would be useful for me to review the various international war crimes tribunals which have emerged since the Bosnia and Rwanda atrocities in the early 1990's. I willingly chose this topic because of my long-time intellectual interest in bringing international war criminals and other international human rights violators to justice.
Every year I show my University of Montana Public International Law students the film Judgment at Nuremberg (2) to illustrate why we must never again allow a country's judicial system to help destroy the legal rights of people the system is supposed to protect. This depiction of the Nuremberg Tribunal's trial of Nazi Germany judges and prosecutors who used the law to facilitate the Holocaust is a "must-see" for everyone interested in meting out justice to those who themselves forgot they were required to do so. I am always amazed by how American law students react when they learn what judges who become part of a savage regime are capable of doing from the bench.
I have also shown Court Television's outstanding video of the International Criminal Tribunal for the Former Yugoslavia (ICTY) trial of Dusko Tadic to not only my University of Montana law students, but also to Russian military academy students from Central Asia who come to Montana for rule of law education and training. These young cadets readily grasp the significance of what the ICTY was created to do, namely subject military and paramilitary officials to international law and justice principles. The Tadic video requires these young future military leaders to think about how far they might be willing to go in straying from, or alternatively, adhering to, well-established Geneva Convention rules and principles applicable to their careers as professional soldiers. Our class discussions always seem to generate multiple "teaching moments," or perhaps better stated, "learning moments," as these young people from countries with few modern law and justice traditions grapple with what the video portrays.
My own intellectual curiosity regarding these tribunals became permanently whetted when, during a visit to the ICTY a number of years ago, a senior ICTY official asked my opinion on whether the ICTY endeavor was worth the effort and cost. This was long before Slobodan Milosevic was hauled before the ICTY, and the mood at The Hague seemed one of doubt. I thought about this question and responded that it might well be worth the effort if even one war criminal were tried and convicted, because this would set the stage for others to be tried either in The Hague, or in some other court created to hear these cases. I further stated that the Tadic case was probably only the beginning, with others surely to come. My oldest daughter, a high school student who accompanied me on this ICTY visit, asked me after we left why the world community would not try war criminals who committed the Bosnian and Rwandan atrocities. Let me suggest that answering such a question from a smart, idealistic adolescent is a difficult task.
In preparing for this year's Sutton Colloquium program, I reflected on all the above experiences, as well as my own thinking about the state of international criminal tribunals to date. Upon such reflection, I have reached a number of conclusions, surprising even to myself, about where we go from here. I start with the proposition that what we have seen thus far, beginning with the Nuremberg and Tokyo War Crimes Tribunals, may reflect a well-meaning effort, but the world can and must do better. I consider the International Criminal Court (ICC) a noble idea which cannot achieve its purposes in any meaningful way as long as so many key nations in the world refuse to participate, and more importantly, as long as cooperation with ICC jurisdiction remains essentially voluntary and discretionary. …