Chief US prosecutor Robert H. Jackson addresses the Nuremberg court.1945. Raymond D'Addario/Wikicommons. Some rights reserved.Ever since surviving German and Japanese political leaders and military commanders were put on trial after World War II there has been an insistence that those who represent states are potentially subject to indictment, prosecution, and punishment if they violate international criminal law.
In the main this has been understood as applying to grave violations of the laws of war (especially the Hague and Geneva Conventions), crimes against humanity (recently specified to include apartheid and torture as distinct crimes), crimes against the peace (aggression, which was the core crime alleged at Nuremberg and Toyko, but has been called into question in recent years), and genocide (not formally criminalized until 1948). In effect, those whose actions violate these restrictions on the behavior of states cannot claim immunity or exemption from law because they are acting in good faith on behalf of the state or even carrying out the orders of those running the state.
During the Cold War, ideological tension between the nuclear superpowers was such as to suspend efforts to apply international criminal law through any formal judicial process. After the Cold War, however, there was a revival of such efforts, especially the ad hoc tribunals established by the action of the UN Security Council in the early 1990s to inquire into the alleged crimes associated with the breakup of Yugoslavia and with the terrible massacres in Rwanda in 1994. Subsequent to this, there were additional criminal tribunals with specific assignments set up for Cambodia, and the Ivory Coast.
The big global institutional breakthrough in the effort to achieve individual criminal accountability came about with the establishment of the International Criminal Court in 2002. The ICC came into being after a concerted drive by moderate middle powers and a coalition of civil society organizations that somewhat surprisingly overcame the opposition of leading states in the world. Since its inception, the ICC has been primarily associated with a number of efforts to prosecute African leaders, and such a focus has met with a rising tide of criticism.
During this period also, a number of prominent leaders were prosecuted outside the orbit of the ICC for their state crimes including Slobodan Milosevic and Saddam Hussein, both adversaries in wars with the west, especially the United States. Muammar Gaddafi, while in the midst of a confrontation with NATO, was also indicted for states crimes. There is no doubt that these individuals were associated with criminal policies while running the state, but there were others who were either friendly with the west or in the west for whom evidence of state crime existed whose wrongdoing was never even investigated.
In the canon of liberal legality these developments that seemed to advance the claims of international criminal law were strongly supported and viewed as a great step forward, and in certain ways such an evaluation seems justified. At the same time there is a disturbing silence in these same liberal circles about the intrusion of double standards in the form of impunity for the powerful that creates a flawed model of criminal justice.
Perpetrators of crime are not treated equally, yet the integrity of law as a system of controls depends for its legitimacy on treating equals equally. International law, especially in the area of the use of force and human rights, is generally compromised as a legitimate legal order by double standards, associated with impunity for geopolitically powerful state actors.
Such a flawed approach to international state crime was exemplified and signaled by the ‘victors’ justice’ that unapologetically prevailed after the Second World War. True, those prosecuted were given fair trials, including an opportunity to defend themselves against the charges brought against them, but these defendants were never permitted to complain about the criminal wrongdoing of those who acted for those countries sitting in justice.
Such wrongdoing of the victors included the terror bombing of German and Japanese cities and most spectacularly the use of atomic bombs against Hiroshima and Nagasaki despite their essentially civilian character. This poses the question too seldom asked, ‘Should victor’s justice be treated as “justice” at all?’ It also worried Justice Pal of India who wrote a long dissenting opinion that questioned the reasoning and one-sidedness of the decisions reached by the Tokyo Tribunal. To express their indignation about these convictions and executions of Japan’s war leaders, there are honorific statues in Japan honoring the memory of Justice Pal. As revealingly, it is impossible in an American library to obtain an official version of the text of the Pal opinion.
This question of double standards and victors’ justice obviously worried the chief American prosecutor at Nuremberg, Robert Jackson, who insisted that the punishments imposed on the Nazi defendants could only be retroactively vindicated if those states sitting in judgment accept a comparable framework of accountability for themselves in the future.
We all know that this has not happened, that the victorious powers in World War II have each been associated with the commission of grave international crimes in wartime settings, and nothing has been done about it from the perspective of international criminal law. In fact, there is a conspiracy of silence within the United Nations, and even in global diplomacy, as if it is embarrassing even to call attention to such a fundamental deficiency in the implementation of international criminal law. The liberal response if challenged along these lines is to insist that a glass of criminal justice half full is a great improvement on an empty glass and that those accused are individuals who have been guilty of terrible atrocities and are given the benefits of a fair trial.
This blanket of impunity has also been extended beyond the major states to their friends, and particularly the United States, as geopolitical leader, has relied on its geopolitical muscle to insulate the Israeli leadership from accountability for numerous evidence-based allegations of criminality against the Palestinian people committed over the decades.
In effect, there is operative in addition to double standards and impunity, what might be called ‘a geopolitical veto.’ This feature of international criminal law was vividly illustrated after the UN Human Rights Council in 2009 set up a fact-finding commission to inquire into allegations of war crimes associated with the Israeli attack on Gaza (Operation Cast Lead) along with Hamas’ reliance on rocket attacks. The Goldstone Report that resulted, although carefully balanced and written by distinguished jurists and specialists, recommended a procedure that might have eventually led to the criminal indictments of Israeli leaders, but the geopolitical veto was cast in a form that effectively consigned the report to the hidden recesses of UN archives.
Ever since Bertrand Russell convened a tribunal to consider the criminality of the American war being waged in Vietnam in the mid-1960s, there has been a controversial path chosen to circumvent the geopolitical veto, at least symbolically. It is in situations of moral outrage and seemingly flagrant violations of international criminal law, to undertake an inquiry into the allegations being made against powerful sovereign states, and have these charges assessed by ‘a jury of conscience’ composed of moral authority figures that may include those with legal credentials, but also culturally, politically, and religiously prominent individuals.
Lacking enforcement mechanisms, such citizen initiatives challenge this crucial gap in the enforcement of international criminal law, and call upon the public and the media to discredit the policies that have been brought into question by testimony, evidence, and careful legal reasoning. Additionally, such findings are generally published in book form and offer a partial antidote to ‘crimes of silence’ by offering an alternative narrative of a controversial war undertaken with the support of geopolitical heavyweights.
The Basso Foundation in Rome and The Russell Foundation in Brussels have for several decades provided auspices for such inquiries devoted to salient issues of criminal justice that the UN and global diplomacy willingly allow to fall unknown into deep pits of forgetfulness.
The world can and must do better to provide an international criminal law system that does not incorporate a geopolitical veto. The institutional framework for a global rule of law with respect to state crime has existed since the inception of the ICC. What is missing is political will among geopolitical actors and sufficient motivation among the peoples of the world to bring the working of law closer to the imperatives of justice.
What we have now is law for normal Westphalian sovereign states coupled with impunity practices and procedures for geopolitical heavyweights and their friends, which means that the most dangerous political actors in the world are subject only to the untrustworthy workings of mechanisms of self-restraint.