War Crimes

The historical aim of tribunals is an integrated, universal policy that will diffuse to local assimilation through continued and standard usage. A practical division of labor accompanied by a reasonable balance between punitive and reconciliatory measures will bring about this assimilation in order to effectively establish a reasonable standard moral code.

The 19^th century jurisprudential critic, John Austin, commenting on the morality of international law, stated that the law of nations is set by the restraining effects of fear; “The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils…” The challenge of formulating universal justice is to establish a legitimate perception of reconciliation that is not viewed as an imperialistic effort to exact punishment and display the spoils of war.

The degree of penetration that the normative yardstick of acceptable behavior achieves in the domestic consciousness is unclear. Customary international law that is enforced through moral obligation and reciprocation may not be fully integrated with ordinary domestic law which, while familiar to local elites, may lack the complexity of the high-development of jus gentium. A purely international system may neglect ordinary law and a purely domestic system may have little impact on the criminalization of atrocities.

War crimes tribunals seek reconstruction of the international capacity of states and the reconciliation of its peoples. Challenges of legitimacy and intent are still prevalent regardless of the system. Reconciliation should use all available tools, just as those holistic policies used in establishing a multinational conflict management policy do. Networks of common and ordinary law, as well as various jurisprudential critics and advisors, lead to a conglomeration of norms.

The international atrocities regime serves the purpose of relegating past elite systems to historical authorities. It also serves as a contribution to the establishment of a normative benchmark that defines appropriate behaviors by states and their leaders. The instinct to punish, however, may lead observers of the atrocities regime to the conclusion that the system is seeking a victor’s justice.

The US announced that it will hold Combatant Status Review Tribunals (CSRT’s) for 14 suspects transferred from ‘black sites’ operated overseas by the Central Intelligence Agency. Among these detainees are Khalid Sheik Mohammed, alleged mastermind of the 9/11 attacks, and Ramzi bin al-Shibh, a senior al-Qa’ida officer and member of the Hamburg cell implicated in the 9/11 attacks. The CSRT’s are held, in accordance with the Supreme Courts ruling in Hamdi v. Rumsfeld, in order to determine if the detainees should be tried before the military commissions established at Guantanamo Bay. The military commissions themselves were established in response to the Supreme Court’s decision in Hamdan v. Rumseld. (see previous orations on David M. Hicks)

The Court in Hamdan reiterated that the purpose of military commissions was to try defendants for violations occurring during war time. In contention in much of the argument presented in Hamdan is what may be constituted a violation of the laws of war. Hamdan was charged with conspiracy, which the court did not find to be a violation of the laws of war. However, with the enactment of the Military Commissions Act (MCA) (itself a reaction to Hamdan), the Congress amended the Uniform Code of Military Justice (UCMJ) to include conspiracy as a crime triable before military commissions; presumably making it a violation of the laws of war according to US law. Also noted in the opinion delivered by Justice Stevens in the Hamdan trial was the notion that customary international law requires that a defendant be allowed to see and hear the evidence against him.

The CSRT’s regarding KSM et al will be closed to the public and defendants will have no access to legal representation or classified information. The transcripts of the CSRT’s will also be heavily edited by the government. However, the CSRT’s are only the first step to trail by the newly established military commissions in Guantanamo and presumably defendants will be granted legal counsel at that time. Several cases are circulating in the DC Circuit Court of Appeals regarding several of the detainees at Gauntanamo and many of the decisions regarding alleged war crimes, habeas claims, and other allegations will be ultimately settled by the Supreme Court. For example, the Supreme Court is expected to re-examine Hamdan, among others, possibly later this year.

SCOTUSblog has excellent commentary on the detainee issues here
National Public Radio has audio commentary here and here.

Special thanks to Lyle Denniston of SCOTUSblog for his expert advice and tutelage regarding the detainee cases. Thanks Lyle!

The US Defense Department revamped its initial charges against David M. Hicks, an Australian national, held at Guantanamo Bay for the past five years, in violation of the laws of war.  Mr. Hicks was initially charged with “conspiracy to commit war crimes; attempted murder by an unprivileged belligerent and aiding the enemy.”  The new charges announced on March 1st, 2007, show the Pentagon dropped the murder charges against Hicks, and indict him only for “providing material support for terrorism”.  The Pentagon considers Hicks “a person subject to trial by military commission for violations of the law of war and other offenses”.  Mr. Hicks is the first terrorism suspect to face prosecution under the new Manual for Military Commissions (MMC), enacted in January, 2007 in accordance with the Military Commissions Act of 2006.

According to the charge sheet, Hicks traveled to Afghanistan in early 2001 “in order to attend al Qaeda terrorist training camps”.  Hicks had previously been associated with the Kosovo Liberation Army (KLA) and the terrorist organization, Lashkar-e Tayyiba (LET).  The US alleges that Hicks had also met with Richard Reid, and Muhammed Atef.  Following the attacks on the US on September 11th, 2001, Hicks had joined al Qaeda forces in various battles against US led forces in Afghanistan.  Hicks was turned over to US authorities by the Northern Alliance in December of 2001. 

Hicks faces charges in violation of the laws of war according to 950v(25), Providing Milittary Support for Terrorism, under the MMC.  The MMC is in part a response to the Supreme Court rule in the case of Hamdan v. Rumsfeld, decided in June 29, 2006.  The Court in Hamdan ruled that the original tribunal systems established for the Guantanamo detainees violated both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions.  The MMC is a response to the ruling in Hamdan and denies habeas claims to Gauntanamo detainees, as well as access to civilian courts.

There is a great deal of contention surrounding this case.  Various manifestations of the tribunal system have denied Gauntanamo detainees the right to habeas claims.  The Supreme Court has repeatedly stated that the government has not observed the letter of the law. In response, the Bush administration has re-codified the Military Commissions to circumnavigate the various Supreme Court rulings (Rasul v. Bush, Hamdan v. Rumsfeld, et al).  The government has proceeded according to a war time setting established under the Authorization Use of Military Force (AUMF), which authorized the President to “use all necessary and appropriate force against … persons he determines planned, authorized,  committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons …”  The government contests that “all necessary and appropriate force” warrants its legal standings on commissions and other proceedings in Guantanamo.  The Hamdan ruling, however, overturned the administrations contention that the AUMF trumped Article 15 of the UCMJ, outlining nonjudicial punishment.  Also of issue is the seeming use of ex post facto law in the case of Hicks.  The MMC was outlined after Hicks was detained in 2001 and Hicks has presumably not violated the laws of war as outlined in the MCC since his incarceration at Guantanamo.  Article I, Sections 9 and 10 of the Constitution specifically detail the ineligibility of ex post facto law, however, the US makes reference to the preceding UCMJ and the Articles of War when supporting their claims. 

Hicks is expected on Monday, March 05, 2007, to file a petition for Writ of Certiorari contesting the DC Circuit Courts issuance of a stay on his habeas petition.  Hicks is the first Guantanamo detainee to face formal charges from the US government.

In July 1995, in the United Nations mandated ‘safe area’ of Srebrenica, Serbian forces summarily executed some 8,000 Bosnian men. The forces of the Army of Republika Srpska, led by General Ratko Mladic (still at large in Bosnia for war crimes), “stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity.^”, according to a press release by the President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Judge Theodor Meron.

Following a NATO led mission to intervene in the conflict, former Yugoslavian President, Slobodan Milosevic, was indicted by the ICTY in May 1999 for war crimes in Bosnia and Croatia, and for genocide, also in Bosnia. Milosevic was the first acting head of state to be indicted for war crimes, however, his death prior to conclusion of his trial at The Haque has left a longing for justice in the region. Nonetheless, his trial implicated his direct contribution to the Serbs during the Bosnian conflict.

The International Court of Justice (ICJ) issued its findings on February 26^th, 2007, stating that the Serbian state was not responsible for acts of genocide during the Bosnian conflict. The allegations against Serbia are the first such incidence of a state being brought before the international body for war crimes. Despite Serbia being cleared of responsibility, the indictment is a significant statement by the UN’s top court that the Srebrenica massacre was in fact genocide.

The indictment of Serbia, in addition to those against individuals such as Milosevic, raises interesting questions regarding international law. The ICJ has in the past conducted legal proceedings on state-centric grounds. For example, Yugoslavia filed suit against the United States for its use of force in the Bosnian campaign, and not, for example, against President Clinton or General Wesley Clark. War crimes allegations, however, have typically been focused on the behavior of individuals, and not the collective actions of the state. Considering other cases involving the Sudanese backed Janjaweed, the indictment of Serbia may be signal a paradigm shift in international law.

Several of the press releases from the ICJ regarding the Serbian case may be found here
The BBC has excellent coverage of the case, including background, here
The UN has a site devoted to the ICTY here

The Khmer Rouge was an extremist Communist power that was the ruling party, under Pol Pot, in Cambodia from 1975-1979. The Khmer Rouge sought to establish a “New People” through isolation from outside influence. They tried to exploit communist ideals to create a classless society by way of an agrarian utopia through isolation, hard labor, and extermination. Following a Vietnamese ouster, the Khmer Rouge leaders were accused of the torture, starvation, and mass slaughter of over 1.7 million Cambodians, or nearly a quarter of the country’s population. Many of the key former leaders of the Khmer Rouge, including Pol Pot, have died and many are in their late 70’s. Only one, however, Kang Kek Ieu (“Duch”), chief executioner for the Khmer Rouge, is in custody.

Then UN Secretary General Kofi Annan initiated an examination to prosecute the leaders of the Khmer Rouge, and in 1999, a bill was introduced in Cambodia to establish a mixed tribunal system there. The Khmer Rouge Tribunal commingles domestic law with international customs and treaties. For example, the definition of genocide has been altered according to the Khmer Rouge Statute, and does not correlate to the Genocide Convention per se. The Tribunal also prohibits foreigners from addressing the court, and only advises international criminal standards if there is a gap in existing Cambodian law.

There have been many obstacles to this tribunal and its fate hangs in the balance. There have been contentions from the Cambodians regarding an understanding of the intent of the Tribunal system, as well as the scope of indictments and the use of foreign counsel. The Cambodians are accused of attempting to limit the scope of the investigation and retain complete autonomy over the system. There have also been allegations questioning the independence and aptitude of Cambodian legal professionals. According to an article by The Guardian, an investigative judge involved with the process has stated that “if new rules … are not adopted we will not go forward because it would be useless. Then we would have to examine the possibility of the international judges asking the UN to withdraw the whole process. It’s now or never”. Thirty years after the atrocities, it appears that justice is on the verge of abandonment.

The mixed tribunal system raises many questions. According to the rules of the International Criminal Court, prosecution cannot proceed without invitation, and invokes a “principle of complimentarity”, which states that the ICC compliments a national system and does not replace that system. However, the ICC only holds jurisdiction over cases occurring after its establishment. Furthermore, mixed tribunals are not Security Council derived, but are the results of negotiations between states and the UN. While this system leaves the autonomous entity of the nation state in tact and coordinates with international standards, the logistics may prove overly burdensome, as in the case of the Khmer Rouge.

Yale has an excellent timeline of the Cambodian war crimes regime here
The website for the Extraordinary Chambers in the Courts of Cambodia is here
The United Nations Assistance to the Khmer Rouge Trials home page is here
The Guardian UK article is here
And National Public Radio has commentary here

Roughly beginning in 2003, the Janjaweed paramilitary force in Sudan began a systematic cleansing campaign against the Fur, Zaghawa, and Massaleit ethnic groups in Darfur. Accusations of genocide have been widely circulated since the conflict began; many human rights groups cite some 400,000 deaths from the conflict, with millions displaced.

In January, 2005, The International Commission of Inquiry on Darfur report to the Secretary-General of the United Nations concluded that “the Government of the Sudan and the Janjaweed are responsible for serious violations of international human rights and humanitarian law amounting to crimes under international law”. Among these allegations are the use of rape as a weapon and the dismemberment and killing of noncombatants.

The United Nations Security Council adopted Resolution 1593 in March, 2005, which referred the situation in Darfur to the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) at The Haque. The Prosecutor then began investigating the situation in June, 2005.

On February 27, 2007, the Office of the Prosecutor at the ICC disclosed the names of two leading suspects, acting humanitarian affairs minister Ahmed Haroun, and Janjaweed militia leader Ali Abd al-Rahman (a.k.a. Ali Kushayb), regarding war crimes in Sudan’s Darfur region. According to BBC reporting, ICC chief prosecutor Luis-Moreno-Ocampo stated that there was reason to believe that the suspects “bear criminal responsibility for crimes against humanity and war crimes in Darfur in 2003 and 2004”

The OTP unveiled over 100 pages of evidence highlighting of least 51 counts against the two men regarding the atrocities in Darfur. Human Rights Watch issued a report in 2005 highlighting many of the OTP findings.

This is the first case to be referred to the ICC by the UN Security Council. However, the Sudanese government does not recognize the jurisdiction of the ICC and therefore does not feel obliged to hand suspects over to that body or cooperate in any way. Furthermore, Sudanese officials claim that the judicial bodies are in place to handle atrocities at the national level. However, so far only minor infractions have been brought before that body. Outside of the initial complications of ICC jurisdiction is the effect this may have on the deployment of UN peacekeepers to the region.

This also brings with it discussions on state sovereignty. Law and order, sustainable infrastructure, and good governance are synonymous with the responsibilities of states. The right to sovereignty is the right to independence from external coercion if these responsibilities are met. States fail when the capability or the will to uphold these responsibilities is no longer satisfactory. In this case, the rights of sovereignty are forfeited. Speaking in 2005, Prime Minister Tony Blair echoed the notions of responsible soveriegnty, stating “For the first lime … we are agreed that states do not have the right to do what they will within their own borders, but that we, in the name of humanity, have a common duty to protect people where their own governments will not.”

The BBC has extensive commentary on the crisis in Darfur here
Wikipedia has the following entry here
And NPR has commentary here and here