How Not to Control Crimes against Humanity

By Kaplan, Morton A. | The World and I, January 1999 | Go to article overview

How Not to Control Crimes against Humanity


Kaplan, Morton A., The World and I


Legalists love to pass laws and solve problems juridically, often in disregard of the conditions of society and the circumstances that make the effort useful. As a consequence, they often make things worse than if the effort had never been made. Yet it often is made to seem that one is opposing motherhood or love when one opposes these efforts. One current effort about which I express doubt is the attempt to establish a permanent international court of criminal law to deal with crimes against humanity.

The reasons why these legalist efforts often cause more problems than solutions are easy to understand. Efforts to control crime within states, even though less than perfect, rest on a solid base. A national or state government holds an effective monopoly of force and a willigness to use it. More often than not there is a legal system with a consistent interpretation of the rules that is based on an overriding cultural consensus. There usually is a reasonable relationship between the crime and the punishment upon conviction. Although police and prosecution are not without adversarial elements, they are still part of a common system, unlike the United Nations, in which the parties ordered to take action are part of the entity issuing the orders. A short synopsis of the history of modern international efforts to mimic these conditions will indicate why the enterprise is dubious.

THE Nuremberg TRIALS

The attempt to punish crimes against humanity in international courts of law has its modern origin in the Nuremberg trials held by the victorious Allies after World War II. These trials also adjudicated the crime of aggressive warfare and war crimes. This precedent remained dormant until the present time. Currently two sets of trials over crimes against humanity are being held under UN auspices. A trial in the Netherlands deals with crimes committed in the former Yugoslavia. All three warring groups--the Serbs, Muslims, and Croats--have committed atrocities, although the Serbs are generally believed to have been the worst offenders. A trial in Africa deals with the genocidal killing of the Tutsis by the Hutu in Rwanda. These trials raise anew the issue of the extent to which the precedent that Nuremberg set represented the best way to deal with the problems it attempted to solve.

Dealing with such problems by establishing legal norms is as American as apple pie. In the debate in April 1977 over the chemical weapons treaty, several senators argued that the existence of a norm, even if violated, nonetheless had a favorable impact on behavior. However, like the late comedian Zero Mostel, I found myself mentally muttering the mantra, "I say yes; I say no." This is especially the case with respect to crimes against humanity.

The relationship between norms, whether cultural or legal, and behavior is complex. Everything depends upon the particulars. Although we cannot have a good society without both cultural and legal norms, particular attempts to create norms may do more harm than good. This is particularly true of legal norms.

I remember shocking my distinguished law professor, Philip Jessup, in 1946, when I objected to the Nuremberg trials. I'll state some general reasons first and then consider the charges of genocide, aggressive war, and war crimes in more detail.

The Nuremberg trials pretended to be proper law trials when at least two of the major categories--crimes against humanity and aggressive warfare--were not contrary to international law. This called into question the appropriateness of a legal tribunal, particularly one in which the judges represented the victorious parties. War crimes--for instance, executing prisoners or civilians--were against international law, but at least some of the parties sitting on the tribunal had also committed war crimes--and, in the case of the Soviet Union, crimes against humanity--and were not charged. This also called into serious question the impartiality of the proceedings. …

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