Introduction
Last week we looked at the issue of terrorism and among the
things we considered were the consequences of regarding, and responding
to, terrorism as either a form of criminality or a form of warfare
consequences of choosing war - state of exception. We noted that one
effect of seeing terrorism as a form of warfare and the consequent
launching of a 'war on terror' was the legitimation of various inroads
into civil liberties and due process (such as, for example, internment
without trial) which, historically speaking, democratic societies have
been prepared to tolerate under conditions of 'emergency' such as the
Second World War 1939-1945. We noted, however, that whereas the Second
World War had a particular duration and end, after which emergency
restrictions on civil liberties were ended, the current 'war on terror'
is open ended and has not really any notion of a clearly identifiable
end - such as surrender of one of the parties, or a peace treaty
between the belligerents. If terrorism is to be conceived as a form of
warfare, then it is a very different type of war from traditional wars
between states and has, therefore, very different consequences for
civil liberties.
Therefore, argue critics of the 'warfare' view of terrorism,
it is better to see the phenomenon within a criminal justice
perspective and this will hopefully make us more vary of the costs of
compromises on liberties and due process (such as the rights of the
accused)
Terrorism can be assimilated to a crime control or
criminalisation perspective because much terrorist activity is very
much like organised crime: groups of individuals who are not part of
any recognised 'enemy' military force, engaged in conspiracies to make
and plant bombs aimed predominantly at civilian targets
This week we want to extend this perspective and ask how far
is it possible to approach other, more conventional varieties, of
warfare from a criminal justice perspective. This is the other side of
the coin. As we shall see, the nature and character of warfare in
the modern world is changing in such a way that the whole distinction
between criminality and warfare becomes blurred. This means that
just as it is easier to regard some forms of crime as forms of warfare,
it is also easier to regard various forms of warfare as crime. Which
perspective is chosen may well be a question of political orientation
and interests. In this case our concept of the 'powerful offender'
might have to be expanded to include even heads of state.
From War to Crime
Let's begin by understanding the traditional situation in
which war and crime were very different phenomena. In European history
the modern distinction between crime and war is often regarded as
dating from the Treaty of Westphalia 1648
which recognised the modern international system of independent
sovereign states and declared the absolute sovereignty of each state
regarding its internal affairs. Thus all conflicts within the territory
of a state, between citizens of that state, were solely a matter for
the government of that state.
This enabled a clear distinction between crime and warfare.
Conflicts within a state can, of course be settled in a number of ways.
Some are political questions about the distribution of resources and
taxation to be settled by legislation and compromise between social
groups. Others, such as interpersonal violence, are criminalised and
settled by the criminal justice system through policing and
punishment. All forms of violence between citizens are in
principle forms of crime. Obviously if the violence is directed against
the government for political motives it will be regarded more
politically as rebellion and treason. If it is successful it will be a
revolution inaugurating a new government or system of government.
Relations between independent sovereign states may involve all
sorts of conflicts. Many of these will also be settled by compromise
and legislation. The latter takes the form of Treaties and other
agreements between states. A body of International Law has emerged
governing the relations between states in many areas but it is
fundamentally different from domestic law. In the latter the national
state will be sufficiently powerful to enforce the law against those
who violate it. In international relations between states there is no
international or global 'state' that can enforce the law against any
national state that violates it. Thus adherence to international law is
a matter of the self interest of the states that recognise the law.
Thus, traditionally - until very recently - if Britain and some
other country make a treaty to settle their differences then both
countries will adhere to the treaty because it is in their interests to
do so rather than from fear of being dragged before a court and
punished.
When the process of international compromise between sovereign
states breaks down then war may be the result. But here is the key
difference between criminal acts between citizens of a state and
warfare between sovereign states. Within states there is a clear
difference between crime and politics. If poor people within a state
vote for politicians who promise to tax the rich and redistribute
resources to the poor that is politics. If poor people start breaking
into the houses of the rich and stealing their property that is crime
and will be punished by the criminal justice system.
But in the relationship between states war is traditionally regarded as a continuation
of politics. If two countries fall out with each other and cannot
settle their differences by negotiation and compromise - diplomacy -
then one may resort to war against the other. But there will be not
higher authority to say which country has overstepped the mark between
legitimate diplomatic negotiation and 'crime'. So war, as the famous
nineteenth century German political theorist Carl von Clausewitz defined it is a 'continuation of politics by other means'
This was more or less the situation as regards relations
between European states during the nineteenth century and ending
finally with the Second World War. Before moving to the current
situation it is worth noting that attempts to criminalise war, to
outlaw it as a legitimate method for settling conflicts between states,
were not entirely absent. But of course such attempts always rested in
the last analysis on an agreement between states not to go to
war. After the First World War (1914-18) the League of Nations
was established and members agreed that war should be avoided as a
method for settling conflicts between states. This theme was
consolidated in the Kellogg-Briand Pact signed in 1928. Neither the
League nor the Pact survived as an effective restraint on recourse to
war. They failed because at the end of the day it was in the political
interests of nation states to go to war and there was no effective
force capable of stopping them.
war crimes
But there did grow up a body of law regarding the actual
conduct of war in the form of treaties, conventions and protocols, to
which most nation states have given their signatures, which aim to
regulate the conduct of war. The most important of these are the Hague
Convention of 1907 and the various subsequent Geneva Protocols
of 1925 and various additional conventions. By attempting to outlaw
various practices in warfare, such as the deployment of chemical and
biological weapons, violence against non-combatant civilians and by
regulating the treatment of refugees, the wounded and prisoners of war,
these conventions attempt to keep warfare within certain boundaries.
There are of course, as with attempts to outlaw war as such,
practical problems of enforcement. Often action against violations is
carried out retrospectively by the victorious parties to the conflict.
This runs the risk of 'victors justice' in which only the crimes of the
defeated will be dealt with while those of the victorious will be
ignored. But apart from those problems the effect of such bodies of
legislation is to legitimise the practice of war as such. They
recognise warfare as a 'continuation of politics by other means' in the
relations between sovereign states, and seek to regulate them in much
the same way as domestic criminal law may outlaw unsafe or dubious
business practices without in any way undermining the legitimacy of
business as such. There can therefore be no precise equivalent in
domestic criminal justice to the idea of war crime.
crimes against humanity
The concept of war crime was joined by that of 'crimes against
humanity' (massacre,
genocide, extermination). The most important origin of the was the Nazi
Holocaust and the. Unlike war-crime, the concept of crime against
humanity is not
necessarily associated with war (the extermination of Jews was a matter
of
Nazi policy quite irrespective of whether Germany was at war or not)
Thus the 1945-6
Nuremberg trials
of the Nazi leadership was the first and the key trial for crime
against humanity. The trials represented a major inroad into the old Westphalian doctrine of state sovereignty under which the
trials of the Nazi leaders (except for war-crimes perhaps) would have
been an internal matter for the German courts. At
that time after the total defeat and destruction of Germany, there was
no German state or system of courts. Since 1948 the United Nations
(UN - established in 1945) has been the international body responsible
for trials for crimes against humanity and legitimate external
intervention in the affairs of a sovereign state requires the authority
of the UN. The UN established the International Court of Justice to arbitrate on claims submitted to it by UN member states.
Since the establishment of the UN the international law on crimes
against humanity has expanded through various conventions, some of the
more important of which are:
1948 Convention against genocide
1979 Convention prohibiting hostage-taking
1984 Convention against torture
All these made it illegal in international law to engage in such acts even as Head of State:
a charge that could be levied against the government of another state
as to its treatment of its own citizens. i.e. you have violated the
human rights of your citizens and as you refuse to bring the culprits
to justice we (other states under the authority of the UN) will
intervene to do it. The principle is established that external intervention (by other
states) in the internal affairs of a sovereign state is justifiable in
response to crime against humanity. That is to say that external
intervention in a state is legitimate even if the crimes have been
committed against solely against the citizens of that state.
new wars
Neither the doctrine of war crime, nor that of crime against humanity outlaws war as such. These doctrines prevent certain practices and forms of behaviour
which may, as with war crime, take place during war, or as with crime
against humanity, may take place under peace time conditions. The UN
charter goes some way to outlawing war by legitimating recourse to war
by a member state only as self defence against imminent attack while
the UN is gathering the resources to intervene to stop the
conflict. We shall deal presently with the question of how UN
declarations are enforced but first we need to consider important
changes in the nature of war itself which help to further blur the
distinction between crime and war
The armed conflict in former Yugoslavia in the early 1990s
established, in the eyes of war-studies specialists such as Mary Kaldor
that the nature of war had undergone a fundamental shift in the modern
world. Old style wars between strong, industrialised, sovereign states,
epitomized by the Second World War were never likely to recur. Nuclear
weapons have made the prospect of such war unthinkable. There have been
one or two smaller conventional wars of short duration such as those
between India and Pakistan and Israel and Arab states. But
increasingly, as Kaldor and others observed, armed conflict is in the
context of the breakup of
states or the inability of states to exercise a monopoly of force in
their territories. This is the character of not only the conflicts in
the states of former Yugoslavia (in particular Bosnia and Serbia) but
also in various African territories such as Sierra Leone, Democratic
Republic of the Congo, Somalia and Sudan. It is also an aspect of
current conflicts in Afghanistan and Iraq.
There are several respects in which such conflicts are much
more like outbreaks of terrorism and organised crime than like
traditional wars between sovereign states
1. They involve, rather than battlefield confrontations between the
military forces of sovereign states, an emphasis on civilian targets
with a national territory. Various groups may be involved in attempts
to carve out new religious or ethnically homogeneous territories
through methods which include genocide, massacre, and ethnic
cleansing. Methods usually associated with terrorism may also be
deployed
2. The combatants, rather than the regular, uniformed
military forces of sovereign states, may include a rag-bag of elements.
Alongside remnants of the official state military forces, now breaking
up, there will be various irregular forces including local warlords,
mercenaries, criminal gangs, former police forces.
3. Unlike the wars between sovereign states which usually end
with a peace agreement or official surrender of one party, there may be
no clear ending to the conflict. Various forces may 'melt away' only to
re-surface after a short period to reignite the conflict.
These factors, in particular the 'unofficial' nature of the
participants and the widespread committing of war-crime and crime
against humanity, make such conflicts easier to assimilate to a
criminal justice paradigm in which forces which intervene from outside
(usually under the auspices of the UN) to try and stop the conflict are
seen as engaged in a variety of policing operation. Indeed the forces
which intervened in the conflicts in Yugoslavia included combinations
of military, police, and welfare agencies (concerned with medical aid
and refugee assistance) drawn from various European states and the US.
Enforcement
As we have mentioned above, the key issue with any notion of
international criminal law against the types of crimes we have
mentioned is that it is one thing for nation states to agree to various
conventions and agreements prohibiting certain practices. It is another
thing to enforce them in the absence of a permanent international
criminal justice system. The United Nations and its various organs
which may be entitled to act under these various conventions still have
to ask member states to contribute the resources and personnel to carry
them into effect. This means that such 'international legality' cannot
move very far from the national interests of the UN member states.
We shall look at three forms of enforcement before turning to
some of the problems involved and asking whether the assimilation of
war to criminality is necessarily always a positive development
1. nation states (or coalitions) acting on behalf of the UN
Major nation states may place their military forces and
associated agencies at the disposal of the UN to intervene to either
stop conflicts (peacemaking) or to enforce otherwise fragile truces
between the contending parties (peacekeeping), Due to the relatively
small number of troops placed at the disposal of the UN the preferred
option is usually the latter.
The problem here, graphically illustrated by the invasion of Iraq
in 2003, is that powerful states may in fact be pursuing their own
agendas under 'cover' as it were of enforcing UN resolutions or
directions. It may well be for example that the Saddam regime in Iraq
was guilty of torture and crime against humanity against its own
citizens, but the US led invasion may not (and the matter is still
subject to considerable argument) have actually had the force of UN legality.
Critics argue that the real motives for invasion had more to do with
extending US influence in the region and gaining access to oil supplies
and that notions of 'law enforcement' were a cover
2. action initiated by individual nation states (including legal co-operation with other states)
In 1998 the Spanish judge Baltasar Garzon issued an international arrest warrant for Augusto Pinochet
the former dictator of Chile who was at the time on a visit to London.
He was arrested by the police and held pending extradition proceedings
to Spain but was released by the House of Lords in 2000 on grounds of
ill health and enabled to return to Chile. Nevertheless, the incident
is regarded as something of a landmark in the development of the
principle of universal jurisdiction
whereby crimes against humanity (Pinochet had tortured thousands and
Chilean citizens and also Spanish citizens living in Chile - which was
the basis of Garzon's indictment) can be tried by any criminal justice
jurisdiction irrespective of where they were actually committed.
However the principle of universal jurisdiction is now regarded as of
less importance with the establishment of the International Criminal
Court (see below)
More recently, judge Garzon has initiated action in Spain against six officials of the Bush Administration for the use of torture against detainees in the US terrorist detention facility at Guantanamo
3. The International Criminal Court and other tribunals under UN auspices
In 1993 arising from the war in Yugoslavia the UN created a special
International Criminal Tribunal for Former Yugoslavia
to try the former Serbian head of state, Slobodan Milosevic,
and other politicians including Radovan Karadzic and military figures
such as Gen. Ratko Mladic for various crimes against humanity
associated with ethnic cleansing during the conflicts in former
Yugoslavia. This included the notorious massacres of Muslim men and
boys at Sebrenica in July 1995 which involved the killing of an estimated 8,000 Bosniak men and
boys, as well as the ethnic cleansing of 25,000-30,000 refugees.
Finally, in 2002 the International Criminal Court,
(ICC) established under the Rome
Treaty 1998 to try cases genocide, crimes against humanity, and war
crimes began working. Member states of the UN agree to be bound by and
work with the ICC by becoming signatories to the Rome Treaty. Currently
(May 2009 about 108 states are supporters. There are a number of
important opponents of the ICC, notably India, China, Israel and the
US. To date (2009) , the court has opened investigations into four
situations: Northern Uganda, the Democratic Republic of the Congo, the
Central African Republic and Darfur. The court has issued public arrest
warrants for thirteen people; seven of them remain free, two have died,
and four are in custody. The ICC's first trial, of Congolese militia
leader Thomas Lubanga, began on 26 January 2009.
The basis of US opposition
The Clinton administration signed the Rome Treaty but it was
not ratified by the US legislature. Various grounds were given such as
that the treaty violates the US constitution and US sovereignty as a
nation state. Against this it is argued that the ICC makes it clear
that it only acts on cases which cannot be dealt with in domestic
courts. Though the ICC prosecutor can, as in the Dafur case (see below)
initiate proceeds as a direct result of referral by the UN rather than
the request of member states. This probably worries the US. Former US
ambassador to the UN under the Bush Administration, John Bolton wa
quite vociferous in his opposition arguing among other things that the
ICC's powers to initiate prosecutions were too broad and unaccountable.
In the meantime the US entered into bilateral agreements with about 40 or 50 states
whereby the states agreed (in return for substantial US aid) not to hand over any US civilian or military personnel to the ICC.
Critics responded that the US position wasjust a
rationalisation for the fact that ICC might constrain US freedom
to act as a global superpower unchecked by the UN. This was indeed an
element of the US attitude during the Bush Administration. It might be
added that if it was known that such atrocities as those revealed at
Abu Graib prison were going to be likely then the Bush Administration
certainly wouldn't want the ICC threatening action.
Others argue, however, that the notion of ICC independence from the big
superpowers, the US in particular, is rather a sham and that it is
notable that the actual cases on which the ICC has proceeded are all
against relatively powerless heads of state or other political leaders
in small third world countries. The notion that the ICC would ever turn
its attention to crimes perpetuated by the major powers seems somewhat
remote.Whatever the case, this controversy illustrates the difficulty in the
international arena, of establishing any institution able to operate in
a way resembling a criminal justice system.
The Obama Administration in the US has recently let it be
known that it wishes to 'end hostility' towards the ICC and cynics
would say that this is because the ICC does not really interfere with
US interests but, indeed, may be their instrument if prosecutions are
directed at states which meet with the disfavour of the US. The latter
is reportedly true of the current government of the Sudan, led by
President Omar al-Bashir, the latest to be indicted for crimes against
humanity by the ICC
The Dafur case
The conflict in the Dafur region of Sudan
has been in existence for a number of years and broke into open civil
war in 2003. The conflict is sometimes portrayed as the first
armed conflict resulting directly from global warming. The basis of the
conflict between southern (ethnically African) communities, mainly
farmers and northern (ethnically Arab) herdsmen is the extension of
desertification and drought driving the herdsmen south in search of
viable grazing land which has brought them into conflict with the
farming communities who already populated the area. This is the basis
of southern rebel movements against the central government. It is
alleged that up to 2.5 million of the latter have been subject to
'ethnic cleansing' policies including forced population transfer, rape
and murder. Much of the atrocities have been committed by an
unofficial militia known as the janjaweed.
Many of the atrocities have been blamed on them but more important it
is argued that they have the unstated support of the Sudanese
government which supports the northerners in their movements into
southern fertile land.
In 2008 the UN Security Council, following a report of its own Commission of Inquiry
had concluded crimes against humanity were being
committed, referred the case to the ICC and in March 2009 ICC judges
approved indictment of president Omar-al Bashir for war crimes and
crimes against humanity (murder, extermination,
forcible transfer, torture and rape). The ICC prosecutor, Louis Moreno-Ocampo originally wanted
to include genocide in the indictment but this was rejected by the judges.
The Dafur case illustrates very well some of the problems
relating to the effective criminalisation of armed conflicts such as
that of Dafur.
'technical' problems
There are severe problems in indicting a current head of
state. Bashir has rejected the ICC indictment and certainly does not
intend to turn himself in. Previous successful indictments of heads of
state have been after they left office. Thus the Serbian government was
persuaded to hand over Milosevic to the ICTFY. Pinochet had retired
from office and at the time of his arrest was on a private visit to the
UK. The idea of sending in a group of UN commandos to arrest Bashir is
not plausible. Also, how is evidence to be gathered? How is a team of
investigators to gather evidence suitable to prove 'beyond reasonable
doubt' the guilt of Mr Bashir in a country as chaotic as Sudan at the
moment? What about atrocities committed by others, including
retaliatory atrocities by southern groups. The task has only to be
announced to illustrate the complete difference from any notion of
'criminal investigation' normally associated with domestic criminal
justice systems
'political' problems
Attempting to arrest an existing head of state, yet alone several
members of a government, besides being difficult to carry out may have
all sorts of unmanageable political consequences. The Sudan government
responded to the indictment by expelling 12 Western aid agencies. This
may result in a large number of deaths from disease and malnutrition.
Existing heads of government are in a position to take all manner of
retaliatory measures against an indictment from the ICC and perhaps
this should have been anticipated.
But there is an even more fundamental issue which raises a question
mark against the whole strategy of responding to conflicts, of the type
under discussion here, with criminal indictments of individuals.
Critics point out that at some point a political compromise must be
reached between the groups involved ( in this case the government and
the Dafur rebels). This is the only hope for a viable future for the
country as a whole. It is argued from this standpoint that the ICC
indictment is an obstruction rather than an
aid to stabilisation.
Precisely because warfare is ultimately "a continuation of politics
by other means" it might be more fruitful to attempt to return from war
to politics - to the model of the peace conference in which the
legitimate grievances of all the
contending parties are recognised. The criminal justice model, in which
the conflict is conceptualised as a one-way relationship between
offender and victim, to be punished by the court, is just not viable in
such circumstances.
Critics refer to reasonably successful attempts to overcome
conflicts - which have certainly involved torture and violence - by
means of reconciliation and a form of 'restorative justice' in which apologies are made, guilt is admitted and then society moves on. A classic example is the South African Truth and Reconciliation Commission which followed the end of the oppressive apartheid regime
in South Africa and which has acted as a model for similar bodies in
other countries. The starting point is a rejection of the Nuremberg
model of guilt and punishment. Rather individuals come forward and
publically admit the crimes against humanity (frequently a question of
torture of political detainees from the resistance to apartheid) they
committed and are then forgiven. While not without its own problems, it
is argued that such a situation is infinitely better than the Nuremberg
model which might be suitable for a completely defeated regime where
the indicted are already captured by the victors and there is no body
of public opinion supporting them, Where the aim is to make a new start
and allow society to continue on a new course but where there are still
substantial numbers of people who did not oppose the apartheid regime
then the social conflict and acrimony which would follow many years of
tracking down and organising high profile criminal trials for
individuals implicated in crimes of violence would really impede the
future economic and social development of the country.
Other examples closer to home might be the Good Friday
agreement which resolved the troubles in Northern Ireland. It was more
important, for example, that leading members of both the Republican and
Loyalist communities worked to establish rapprochement than to organise
the indictment and prosecution of very large numbers of individuals on
both sides of the divide who had been involved in terrorist activities
Of course, as abolitionist thinkers such as the late Louk Hulsman
a leading Dutch legal theorist, argued, maybe these principles should
be applied to replace the criminal justice system in its entirety. But
that discussion is for another occasion
updates
'Britain failing to make Bashir's arrest a priority, says ICC's chief prosecutor' Guardian 24th May 2009
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