Transcript: Madam Justice Louise Arbour on War Crimes and Peace | Feb 10, 2001

A slate with two Doric columns reads "Honourable Madam Justice Louise Arbour. 'War crimes and the culture of peace.'"

[applause]

Louise Arbour stands behind a wooden lectern on a stage and addresses a large audience. A banner on the lectern with a coat of arms on it reads "Victoria University in the University of Toronto."
Louise is in her sixties, with short wavy auburn hair. She's wearing glasses and a gray tweed jacket over a white blouse.

A caption appears on screen. It reads "Honourable Madam Justice Louise Arbour. Justice of the Supreme Court of Canada. 'War crimes and the culture of peace.'"

Louise says EVER SINCE I ARRIVED HERE
THIS AFTERNOON, I'VE BEEN
TOLD ABOUT THE PREVIOUS
GREAT KEITH DAVIS' LECTURERS
AND ALL THESE LEARNED PEOPLE
WHO SPOKE TO ME ABOUT THESE
PREVIOUS LECTURERS SPOKE
EXCLUSIVELY ABOUT THE WEATHER.

[laughter]

Louise continues SO I HAVE AN AMBITION TO
ENSURE THAT YOU'LL REMEMBER
SOMETHING ABOUT WHAT I HAVE
TO SAY, BUT IF THAT FAILS,
PLEASE RECALL THAT
THIS IS A LOVELY DAY.

[laughter]

Louise continues ON SEPTEMBER 4th, 1998,
JEAN KAMBANDA, THE FORMER
PRIME MINISTER OF RWANDA,
PLEADED GUILTY BEFORE AN
INTERNATIONAL TRIBUNAL TO
GENOCIDE, CONSPIRACY, PUBLIC
INCITEMENT AND COMPLICITY
IN GENOCIDE AND THE CRIMES
AGAINST HUMANITY OF MURDER
AND EXTERMINATION, THEREBY
ADMITTING HIS ROLE IN THE
EXTERMINATION OF OVER HALF A
MILLION DOLLARS OF HIS OWN PEOPLE.
AFTER REVIEWING THE TERMS OF
THE PLEA AGREEMENT BETWEEN
KAMBANDA AND THE OFFICE
OF THE PROSECUTOR, WHICH
INCLUDED DETAILED ADMISSIONS
OF THE PARTICULARS OF HIS
PARTICIPATION IN THE
GENOCIDE, THE TRIAL CHAMBER
OF THE INTERNATIONAL
CRIMINAL TRIBUNAL FOR RWANDA
ACCEPTED HIS GUILTY PLEA
AND SENTENCED HIM TO
LIFE IMPRISONMENT.
IN REVIEWING THE FACTORS
WHICH COULD SERVE TO
MITIGATE THE SEVERITY OF THE
SENTENCE, THE TRIAL CHAMBER
MADE THE FOLLOWING
OBSERVATION.
ACCORDING TO THE PROSECUTOR,
JEAN KAMBANDA HAD EXPRESSED
HIS INTENTION TO PLEAD
GUILTY IMMEDIATELY UPON HIS
ARREST AND TRANSFER TO THE
TRIBUNAL ON THE 18th OF
JULY 1997.
KAMBANDA DECLARED IN THE
PLEA AGREEMENT THAT HE HAD
RESOLVED TO PLEAD GUILTY
EVEN BEFORE HIS ARREST IN
KENYA, AND THAT HIS PRIME
MOTIVATION FOR PLEADING
GUILTY WAS HIS PROFOUND
DESIRE TO TELL THE TRUTH,
AS THE TRUTH WAS THE ONLY
WAY TO RESTORING NATIONAL
UNITY AND RECONCILIATION
IN RWANDA.
JEAN KAMBANDA CONDEMNED THE
MASSACRES THAT OCCURRED IN
RWANDA, AND HE CONSIDERS HIS
CONFESSION AS A CONTRIBUTION
TOWARDS THE RESTORATION
OF PEACE IN RWANDA.
IN OCTOBER OF 2000, HIS
APPEAL CHALLENGING THE
VALIDITY OF HIS GUILTY
PLEA AND THE LENGTH OF HIS
SENTENCE WAS DISMISSED.
I HAVE THOUGHT FOR A LONG
TIME THAT THIS WAS THE
SINGLE MOST IMPORTANT AND
SIGNIFICANT EVENT IN THE
EMERGING HISTORY OF THE TWO
INTERNATIONAL TRIBUNALS WITH
WHICH I'VE BEEN ASSOCIATED,
THE INTERNATIONAL CRIMINAL
TRIBUNAL FOR THE FORMER
YUGOSLAVIA, AND ITS SISTER
INSTITUTION FOR RWANDA.
AND YET IT RECEIVED VERY
LITTLE ATTENTION, AT LEAST
IN THE EUROPEAN AND
NORTH AMERICAN PRESS.
EVEN IN AFRICA, THE PUBLIC
IMPACT DID NOT, IN MY VIEW,
REFLECT THE MAGNITUDE OF
THIS EXTRAORDINARY
LEGAL PRECEDENT.
IN PART THIS IS CAUSED, I
NOW BELIEVE, BY THE NATURE
OF THE PROCESS ITSELF, AND
THIS TRIGGERS A MUCH BROADER
REFLECTION ABOUT THE ROLE OF
INTERNATIONAL CRIMINAL LAW
AND THE NEED TO DEVELOP A
PROCEDURAL FRAMEWORK THAT IS
ADAPTED TO ITS UNIQUE
MISSION AND MODE OF OPERATION.
THE METHOD OF RESOLVING
CRIMINAL CHARGES BY WAY OF
GUILTY PLEA... BY WAY OF A
GUILTY PLEA BY THE DEFENDANT IS
A FREQUENT, COMMON
AND INDEED, IT'S OFTEN A
PREFERRED METHOD OF
DISPOSITION OF CRIMINAL
CHARGES IN COMMON LAW
BASED ADVERSARIAL SYSTEMS.
WHEN AN ACCUSED IS PREPARED
TO CONCEDE HIS CULPABILITY
TO THE CHARGES BROUGHT
AGAINST HIM BY THE
PROSECUTION, THE INTEREST
OF JUSTICE IS SERVED BY THE
COURT MERELY ENSURING THAT
THE GUILTY PLEA IS VOLUNTARY
AND INFORMED, THAT THE
DEFENDANT UNDERSTANDS THAT
HE OR SHE WAIVES A RIGHT TO
PUTTING THE PROSECUTION TO
THE TASK OF MEETING ITS
ONEROUS BURDEN OF PROOF,
AND THAT'S THE END
OF THE INQUIRY.
THE COURT MUST, OF COURSE,
SATISFY ITSELF THAT THE
FACTS ALLEGED BY THE
PROSECUTION AND CONCEDED BY
THE DEFENDANT SATISFY THE
LEGAL REQUIREMENTS OF THE
CHARGE, BUT THERE IS NO
INDEPENDENT PUBLIC INTEREST
IN DEPLOYING THE WHOLE
DRAMATIC PERFORMANCE OF A
TRIAL JUST TO
TELL THE STORY.
EVEN LESS SO IS THERE ANY
REQUIREMENT EVEN WITHIN A
TRIAL THAT THE PROSECUTION
PAINT THE FULL AND RICH
CONTEXT WHICH WOULD PERMIT
A DEEP UNDERSTANDING OF THE
CAUSES OF THIS CRIME, OF
THE CAUSES OF THIS TYPE OF
CRIME, OR OF THE CAUSES
OF CRIME MORE GENERALLY.
AND SO WHEN JEAN KAMBANDA
PLEADED GUILTY, HIS PUBLIC
ADMISSION OF GUILT WAS IN
MY VIEW A MAJOR BLOW TO THE
REVISIONISM THAT WAS ALREADY
IMPLANTING ITSELF, NOT SO
MUCH IN RWANDA, BUT IN
NEIGHBOURING COMMUNITIES,
BUT IT INEVITABLY FELL SHORT
OF PROVIDING A FORUM IN
WHICH THE COMPLEX STORY OF
THE RWANDAN GENOCIDE COULD
BEGIN TO BE TOLD,
BELIEVED, AND UNDERSTOOD.
PROSECUTIONS FOR WAR CRIMES
AND GENOCIDE ARE NOT
ORDINARY PROSECUTIONS.
ON MAY 25, 1993, THE
SECURITY COUNCIL OF THE
UNITED NATIONS, HAVING
CONCLUDED THAT THE CONTINUED
MASSIVE VIOLATIONS OF
INTERNATIONAL HUMANITARIAN LAW
IN THE FORMER YUGOSLAVIA
CONSTITUTED A THREAT TO
INTERNATIONAL PEACE AND
SECURITY ACTING UNDER
CHAPTER 7 OF THE UNITED
NATIONS' CHARTER,
ESTABLISHED AN INTERNATIONAL
CRIMINAL TRIBUNAL MANDATED
TO INVESTIGATE AND PROSECUTE
PERSONS RESPONSIBLE FOR SUCH
VIOLATIONS AND IN DOING
SO TO CONTRIBUTE TO THE
RESTORATION AND
MAINTENANCE OF PEACE.
ON NOVEMBER 8, 1994, BY A
SIMILAR RESOLUTION, HAVING
FOUND THAT THE SITUATION
IN RWANDA CONTINUED TO
CONSTITUTE A THREAT TO
INTERNATIONAL PEACE AND
SECURITY, SECURITY COUNCIL
CREATED ANOTHER AD HOC
TRIBUNAL, ADDING TO ITS
MISSION NOT ONLY TO
CONTRIBUTE TO THE
RESTORATION AND MAINTENANCE
OF PEACE, BUT ALSO TO
CONTRIBUTE TO THE PROCESS OF
NATIONAL RECONCILIATION
IN RWANDA.
NOW THE LINK BETWEEN
CRIMINAL ACCOUNTABILITY AND
PEACE WAS ESSENTIAL TO THE
JURIDICAL FOUNDATION OF
THE INTERVENTION BY
THE SECURITY COUNCIL.
IN ORDER TO AVAIL ITSELF OF
CHAPTER 7 OF THE UN CHARTER,
THEREBY OVERRIDING STATE
SOVEREIGNTY AND MANDATING
STATES, OFTEN AGAINST THEIR
WILL, TO TAKE OR TO REFRAIN
FROM TAKING CERTAIN ACTIONS,
THE SECURITY COUNCIL WAS
BOUND BY LAW TO FIND A
THREAT TO WORLD PEACE AND TO
ENACT A MEASURE IN THIS
CASE, FOR THE FIRST TIME
EVER, A MEASURE OF PERSONAL
CRIMINAL ACCOUNTABILITY THAT
COULD SERVE TO RE-ESTABLISH
THAT DISTURBED WORLD PEACE.
HOW, ONE MAY ASK, CAN
CRIMINAL JUSTICE CONTRIBUTE
TO THE PROMOTION OF PEACE?
MORE PARTICULARLY, HOW CAN
CRIMINAL TRIALS FOR WAR
CRIMES, CRIMES AGAINST
HUMANITY AND GENOCIDE,
PROMOTE A CULTURE OF PEACE?
BUT FIRST LET ME GIVE YOU
A BRIEF OVERVIEW OF WHERE
THESE TWO INSTITUTIONS
NOW STAND.
THE ICTY, AS IT IS KNOWN,
THE TRIBUNAL FOR YUGOSLAVIA,
LOCATED IN THE HAGUE,
CURRENTLY EMPLOYS 1,200
STAFF MEMBERS COMING FROM
75 DIFFERENT COUNTRIES.
FOURTEEN JUDGES, EACH FROM A
DIFFERENT COUNTRY, PRESIDE
OVER THE PROCEEDINGS.
A YEARLY BUDGET OF
APPROXIMATELY 95 MILLION DOLLARS U.S.
WAS AVAILABLE TO IT IN 1999
AND 2000, IN CONTRAST TO THE
ORIGINAL 10 MILLION DOLLARS THAT
WAS MADE AVAILABLE TO THE
TRIBUNAL AT ITS
CREATION IN 1994.
THE ICTY IS MANDATED TO
PROSECUTE AND TRY PERSONS
RESPONSIBLE FOR GRAVE
BREACHES OF THE 1949 GENEVA
CONVENTIONS AND THEIR 1977
ADDITIONAL PROTOCOLS,
VIOLATIONS OF THE LAWS AND
CUSTOMS OF WAR, GENOCIDE,
AND CRIMES AGAINST HUMANITY.
THE TRIBUNAL'S JURISDICTION
CONCERNS THOSE CRIMES
COMMITTED IN THE FORMER
YUGOSLAVIA SINCE 1991.
ITS JURISDICTION IS
OPEN-ENDED IN TIME AND CAN
ONLY BE TERMINATED BY A
RESOLUTION OF THE
SECURITY COUNCIL.
96 INDIVIDUALS HAVE BEEN
PUBLICLY INDICTED SINCE
THE ICTY'S CREATION.
THERE HAVE BEEN SO FAR
TWELVE CONVICTIONS AMONG
WHICH THREE WERE MAINTAINED
ON APPEAL AND THE OTHERS ARE
CURRENTLY PENDING BEFORE
THE APPEALS CHAMBER.
OF THE ACCUSED WHOSE
PUBLIC INDICTMENT IS STILL
OUTSTANDING, 27 ARE STILL AT
LARGE, INCLUDING SLOBODAN
MILOSEVIC AND HIS FOUR
CO-ACCUSED, AS WELL AS
RADOVAN KARADZIC AND RATKO
MLADIC, WHOSE INDICTMENTS AND
ARREST WARRANTS HAVE BEEN
OUTSTANDING FOR OVER FIVE YEARS.
THOSE WHO ARE BEFORE THE
TRIBUNAL WERE EITHER
ARRESTED BY NATIONAL POLICE
AUTHORITIES OR THEY WERE
DETAINED BY S FOUR, THE
INTERNATIONAL FORCES IN
BOSNIA, AND THEN FORMALLY
ARRESTED BY TRIBUNAL OFFICIALS.
SOME HAVE SURRENDERED
VOLUNTARILY TO THE ICTY IN
CROATIA AND IN BOSNIA,
INCLUDING JUST YESTERDAY
BILJANA PLAVSIC, THE FORMER
PRESIDENT OF REPUBLICA
SRPSKA, THE BOSNIAN-SERB
REPUBLIC OF BOSNIA.
35 ACCUSED ARE
PRESENTLY DETAINED AT THE
UNITED NATIONS' DETENTION
UNIT IN THE NETHERLANDS AND
4 WERE PROVISIONALLY
RELEASED WHILE AWAITING TRIAL.
MOST OF THE CHARGES CONCERN
VIOLATIONS OF THE LAWS AND
CUSTOMS OF WAR, CRIMES
AGAINST HUMANITY AND GRAVE
BREACHES OF THE
GENEVA CONVENTION.
THERE WERE 19 ACCUSED
INDICTED FOR SEXUAL OFFENCES
AND 9 CHARGES
OF GENOCIDE.
BOTH THE ACCUSED AND THE
PROSECUTION REGULARLY AVAIL
THEMSELVES OF THE
APPEAL PROCESS.
THERE HAVE BEEN THREE FINAL
DECISIONS RENDERED THIS FAR.
IN MARCH OF 2000, GENERAL
TIHOMIR BLASKIC, AT THE TIME
COLONEL IN THE HVO, THE
BOSNIA-CROAT ARMY, WAS FOUND
GUILTY ON 20 COUNTS OF
CRIMES AGAINST HUMANITY AND
WAR CRIMES AND WAS SENTENCED
TO 45 YEARS IMPRISONMENT.
THAT JUDGMENT AND THAT
SENTENCE ARE BEING APPEALED
BY THE ACCUSED.
AS YOU KNOW, IN MAY OF 1999,
FOR THE FIRST TIME A HEAD OF
STATE, SLOBODAN MILOSEVIC,
PRESIDENT OF THE FEDERAL
REPUBLIC OF YUGOSLAVIA, WAS
INDICTED WHILE IN OFFICE ON
BEHALF OF THE INTERNATIONAL
COMMUNITY FOR CRIMES AGAINST
HUMANITY, AND VIOLATIONS OF
THE LAWS AND CUSTOMS OF WAR.
ALONG WITH THREE OTHER
MEMBERS OF THE SOCIALIST
PARTY OF SERBIA, INCLUDING
THE PRESIDENT OF SERBIA,
AND WITH THE CHIEF OF THE
GENERAL STAFF OF THE ARMED
FORCES OF THE FRY, THE VJ,
MILOSEVIC WAS CHARGED WITH
THREE COUNTS OF CRIMES
AGAINST HUMANITY AND ONE
COUNT OF WAR CRIME.
THE INDIVIDUAL
RESPONSIBILITY OF THE
ACCUSED, AS WELL AS THEIR
CRIMINAL RESPONSIBILITY FOR
THE ACT OF THEIR
SUBORDINATES, ARE INVOKED
IN THOSE CHARGES.
THE INDICTMENT RESULTS FROM
THE LARGE-SCALE PLAN TO
SECURE BY CRIMINAL MEANS
CONTINUED SERBIAN CONTROL
OVER THE PROVINCE OF KOSOVO.
KOSOVO ALBANIANS WERE
FORCIBLY EXPELLED AND
INTERNALLY DISPLACED FROM
THEIR HOMES BY THE POLICE
AND BY THE ARMED FORCES OF
THE FEDERAL REPUBLIC OF
YUGOSLAVIA AND SERBIA.
THEIR PROPERTY WAS STOLEN
OR DESTROYED IN A
SYSTEMATIC MANNER.
THEIR VILLAGES WERE SHELLED,
THEIR HOUSES BURNED, THEIR
PERSONAL IDENTITY DOCUMENTS
WERE SEIZED AND DESTROYED.
THE FORCES OF THE FRY IN
SERBIA WENT FROM HOUSE TO
HOUSE TO ORDER THE RESIDENTS
TO LEAVE, AND THEY MURDERED
MANY OF THEM, INCLUDING WOMEN
AND CHILDREN, IN THE PROCESS.
A FULL-FLEDGED CAMPAIGN OF
TERROR AND VIOLENCE DIRECTED
AT KOSOVO ALBANIANS
WAS CARRIED OUT.
THE FIVE ACCUSED WERE
CHARGED FOR THEIR
PARTICIPATION IN THE
PLANNING, PREPARING AND
EXECUTING MASS DEPORTATION,
MURDER AND PERSECUTION ON
POLITICAL, RACIAL AND
RELIGIOUS GROUNDS.
THE INTERNATIONAL CRIMINAL
TRIBUNAL FOR RWANDA, LOCATED
IN ARUSHA IN TANZANIA,
CURRENTLY EMPLOYS 700
STAFF MEMBERS FROM 80
DIFFERENT COUNTRIES.
AS IN THE CASE OF THE
YUGOSLAV TRIBUNAL,
14 JUDGES, EACH FROM A
DIFFERENT COUNTRY PRESIDE
OVER ITS PROCEEDINGS.
IT HAS A CURRENT TOTAL BUDGET
OF OVER 80 MILLION DOLLARS U.S.
FOR THE YEAR 2000.
THE ICTR'S MANDATE IS TO
PROSECUTE AND TRY PERSONS
RESPONSIBLE FOR GENOCIDE AND
OTHER SERIOUS VIOLATIONS OF
INTERNATIONAL HUMANITARIAN
LAW COMMITTED ON THE
TERRITORY OF RWANDA FROM
JANUARY TO DECEMBER 1994.
IT MAY ALSO TRY RWANDAN
CITIZENS CHARGED WITH SUCH
CRIMES COMMITTED ON THE
TERRITORY OF NEIGHBOURING
STATES DURING
THE SAME PERIOD.
AS IN THE CASE OF ICTY,
PERSONS CONVICTED BY THIS
INTERNATIONAL COURT WILL
SERVE THEIR SENTENCES IN
COUNTRIES THAT HAVE ENTERED
INTO AGREEMENTS WITH THE
TRIBUNAL TO ADMINISTER
THOSE SENTENCES.
ICTR PREFERS THAT THE
SENTENCES IT IMPOSES BE
SERVED IN AFRICA, MALI,
BENIN AND SWAZILAND HAVE
SIGNED SUCH AGREEMENTS.
44 DETAINEES ARE
PRESENTLY HELD AT THE
DETENTION UNIT IN ARUSHA.
THEY INCLUDE SEVERAL FORMER
SENIOR CABINET MINISTERS IN
THE INTERIM GOVERNMENT OF
RWANDA OF 1994, FORMER
MILITARY COMMANDERS,
POLITICAL LEADERS,
JOURNALISTS AND
SENIOR BUSINESSMEN.
36 ARE EITHER AWAITING TRIAL
OR AWAITING A TRIAL DECISION.
5 HAVE BEEN CONVICTED AND
THEIR APPEAL IS NOW PENDING.
IN MAY OF 2000 BELGIAN
NATIONAL GEORGES RUGGIU,
THE ONLY NON-RWANDAN CHARGED
BEFORE THE ICTR, PLEADED
GUILTY TO ONE COUNT OF
HAVING DIRECTLY AND PUBLICLY
INCITED GENOCIDE THROUGH HIS
RADIO BROADCAST AND TO ONE
COUNT OF PERSECUTION, A
CRIME AGAINST HUMANITY.
HE WAS SENTENCED TO 12
YEARS IMPRISONMENT IN JUNE,
AND HE DID NOT APPEAL.
SHORTLY AFTER THE GUILTY
PLEA OF JEAN KAMBANDA, TO
WHICH I'VE ALREADY REFERRED,
IN OCTOBER OF 1998,
JEAN-PAUL AKAYESU, WHO WAS
IN CHARGE OF A COMMUNE AS A
BOURGMESTRE, WAS FOUND
GUILTY ON SEVERAL COUNTS OF
GENOCIDE, EXTERMINATION,
MURDER, TORTURE, RAPE AND
OTHER INHUMANE ACTS.
HE WAS ACQUITTED ON OTHER
COUNTS OF VIOLATIONS OF
COMMON ARTICLE 3 OF THE
GENEVA CONVENTIONS.
HE WAS SENTENCED TO
LIFE IMPRISONMENT.
BOTH THE ACCUSED AND THEIR
PROSECUTION APPEALED.
THE CONVICTIONS OF AKAYESU
AND KAMBANDA WERE THE FIRST
EVER BY AN INTERNATIONAL COURT
FOR THE CRIME OF GENOCIDE.
NOW I GAVE YOU
THAT AS BACKGROUND.
THE JURISPRUDENCE OF THESE
TWO TRIBUNALS PROVIDES A
SOUND FOUNDATION BASED ON
CONCRETE EXPERIENCE FOR THE
ELABORATION OF PRINCIPLES OF
INTERNATIONAL CRIMINAL LAW.
THE FOCUS OF THE WORK UNTIL
NOW HAS BEEN IN BUILDING A
FUNCTIONING INSTITUTION AND
CREATING AN OPERATIONAL
JUDICIAL FORUM IN WHICH THE
CASES CAN BE PROCESSED TO
THEIR ULTIMATE DISPOSITION,
THE GUILT OR INNOCENCE OF
INDIVIDUAL ACCUSED.
THE AD HOC CHARACTERS OF
THESE TWO INSTITUTIONS ALLOW
THEM TO FOCUS ESSENTIALLY ON
THE TASK AT HAND, AND THIS
IN ITSELF WAS NO SMALL TASK.
BUT THE PROJECT OF A
SOON-TO-BE PERMANENT
INTERNATIONAL CRIMINAL
COURT WITH A MUCH BROADENED
JURISDICTION, A PROSPECT
WHICH HAS BEEN INVIGORATED A
FEW DAYS AGO BY PRESIDENT
CLINTON SIGNING THE ROME
TREATY ON THE LAST DAY THAT
THE TREATY WAS OPEN FOR
SIGNATURE, WILL NO DOUBT
PROVOKE A DEEPER SEARCH FOR
THE THEORETICAL FOUNDATIONS OF
INTERNATIONAL CRIMINAL JUSTICE.
MY EXPERIENCE WITH THE AD HOC
TRIBUNALS HAS PERSUADED ME
OF THE NEED TO DEVELOP
INTERNATIONAL CRIMINAL LAW
AS AN AUTONOMOUS
DISCIPLINE WITH AN
INDIGENOUS SET OF RULES AND
PRINCIPLES THAT REFLECT ITS
UNIQUE MISSION AND THE
PECULIAR ENVIRONMENT
IN WHICH IT OPERATES.
IT WILL INEVITABLY BE A
HYBRID DISCIPLINE, TORN
BETWEEN THE ASSUMPTIONS,
OFTEN CONTRADICTORY
ASSUMPTIONS, OF ITS
PRINCIPAL PARTS AND
PRESSURED TO REFLECT, OR AT
LEAST TO ACCOMMODATE, THE
CULTURAL TENETS OF THE WORLD'S
DOMINANT LEGAL SYSTEMS.
I HAVE HIGHLIGHTED ELSEWHERE
THE DIFFICULTIES ENDEMIC IN
ATTEMPTING TO MERGE TWO
DIFFERENT LEGAL DISCIPLINES
THAT PERMIT THE ENFORCEMENT
OF INTERNATIONAL
HUMANITARIAN LAW THROUGH
CRIMINAL SANCTIONS.
PUBLIC INTERNATIONAL LAW,
WITH ITS ORIGINS IN THE
REGULATIONS OF INTERSTATE
RELATIONS, IS TRADITIONALLY
VERY CONSENSUAL.
IT PREFERS THE
PRINCIPLE TO THE RULE.
IT REFLECTS CONCEPTS AND
TRADITIONS TAKEN FROM A
VARIETY OF LEGAL SYSTEMS.
IT IS RESPECTFUL OF STATE
INTERESTS, AND IT IS
VERY SENSITIVE TO
POLITICAL FACTORS.
CRIMINAL LAW, BY CONTRAST,
IS ESSENTIALLY COERCIVE,
AUTHORITARIAN AND RIGOROUS.
IN THE PRACTICE OF CRIMINAL
LAW, POLITICAL FACTORS ARE
REGARDED AS AT BEST
IRRELEVANT, AT WORST
OFFENSIVE AND DANGEROUS
TO THE CRIMINAL PROCESS.
THE MERGER OF THESE TWO
DISCIPLINES, CRIMINAL LAW
AND INTERNATIONAL LAW, IS A
CHALLENGE COMPOUNDED BY THE
INEVITABLE CLASH OF LEGAL
TRADITIONS FROM DIFFERENT
NATIONAL SYSTEMS.
WHILE ECONOMIC IMPERATIVES
AND THE DEMANDS OF COMMERCE
MAY HAVE BRIDGED MANY OF THE
DISTINCTIONS BETWEEN LEGAL
SYSTEMS IN CIVIL AND IN
COMMERCIAL MATTERS, THE
CRIMINAL PROCESS, UNTIL NOW,
HAS RECEIVED VERY LITTLE
CROSS-FERTILIZATION.
A CRIMINAL TRIAL IN A
COMMON LAW JURISDICTION
REMAINS SOMETHING VERY
DIFFERENT TO A CRIMINAL
TRIAL IN A SO-CALLED
CIVIL LAW TRADITION.
IN LIGHT OF THIS, THE
ORGANIZING PRINCIPLE WHICH
SHOULD GUIDE THE CHOICE OF
PROCEDURAL MODELS FOR THE
PERMANENT COURT, AS WELL AS
FOR THE AD HOC TRIBUNALS,
IS IN MY VIEW, THE LINK
BETWEEN PERSONAL CRIMINAL
RESPONSIBILITY AND PEACE.
THIS IS NOT A LONG
STRETCH FOR CRIMINAL LAW.
ALTHOUGH ON A DAILY BASIS
WE DO NOT THINK OF DOMESTIC
CRIMINAL LAW AS A MEASURE
DESIGNED TO RESTORE OR
MAINTAIN PEACE, IN THE
ANGLO-AMERICAN TRADITION,
A CRIME IS CONCEIVED AS
A BREACH OF THE PEACE.
THIS IS WHY A POLICE OFFICER
IS CALLED A PEACE OFFICER.
MY OWN FAMILIARITY WITH THIS
KIND OF TERMINOLOGY AND,
MORE IMPORTANTLY, WITH ITS
RATIONALE, EXPLAINED MY
PUZZLEMENT WHEN I WAS TOLD
IN BOSNIA, FOR EXAMPLE, THAT
I SHOULD NOT CALL ON NATO
TROOPS TO ASSIST IN THE ARREST
OF INDICTED WAR CRIMINALS
BECAUSE, AS IT WAS VERY OFTEN
PUT TO ME, PEACEKEEPERS
ARE NOT POLICE OFFICERS.
WELL, I THOUGHT THEY WERE.
NATIONAL RULES REFLECT NOT
ONLY A SPECIFIC REALITY BUT
ALSO HISTORICAL AND CULTURAL
IMPERATIVES THAT ARE LARGELY
IMMUTABLE BUT NOT
NECESSARILY EXPORTABLE,
LIKE THE JURY SYSTEM,
FOR INSTANCE.
EXPORTING THE RULES WITHOUT
EXPORTING THEIR RATIONALES IS
OF LIMITED ASSISTANCE.
THE INTERNATIONAL SCENE IS
MORE THAN THE SUM OF ITS
DIFFERENT PARTS.
IT'S MORE, FOR INSTANCE,
THAN ALL STATES JOINED
TOGETHER IN THE STRUGGLE
AGAINST INTERNATIONAL
ORGANIZED CRIME.
THIS, IN FACT, CAN BE
ACCOMMODATED THROUGH
TRANSNATIONAL EFFORTS,
BILATERAL OR MULTI-LATERAL
INITIATIVES TO COMBAT THE
INTERNATIONAL DRUG TRADE,
MONEY LAUNDERING OR
THE PROTECTION OF
INTELLECTUAL PROPERTY.
BUT WHEN IT COMES TO
THE INVESTIGATION AND
PROSECUTION OF CRIMES
AGAINST HUMANITY AND
GENOCIDE, WE MUST ELABORATE
AN INDIGENOUS INTERNATIONAL
PENAL LAW, BOTH
SUBSTANTIVELY AND IN
MATTERS OF PROCESS.
I BELIEVE THAT WE MUST DO SO
IN A BOLD FASHION, SEARCHING
LESS FOR THE EXISTING COMMON
GROUND, THAN FOR ORIGINAL
MEASURES THAT WILL DEVELOP
NEW EXPECTATIONS, SPREADING
THE CULTURE OF PEACE.
HAVING SAID THAT, I DON'T
DISAGREE WITH GARY BASS,
WHO ARGUES IN HIS EXCELLENT
RECENT BOOK CALLED
STAY THE
HAND OF VENGEANCE: THE
POLITICS OF WAR CRIMES
TRIBUNALS, WHICH WAS
PUBLISHED JUST RECENTLY AT
PRINCETON UNIVERSITY PRESS.
I DON'T DISAGREE WITH HIM
THAT LIBERAL STATES, THE
ONLY STATES WHO TRULY
CHAMPION THE IDEA OF WAR
CRIMES TRIALS VIEW THESE
TRIALS AS A NATURAL
EXTENSION OF THE IDEA OF
UNIVERSAL RIGHTS, WHICH IS
ITSELF THE CORNERSTONE OF
RIGHTS-BASED DEMOCRATIC REGIMES.
IN FACT, I ENTIRELY AGREE
WITH BASS THAT MODERN
INTERNATIONAL WAR CRIMES
TRIALS, BOTH IN REALITY AND
IN PRINCIPLE, CAN
ONLY REFLECT WESTERN
PREREQUISITES OF DUE PROCESS
SUCH AS, FIRST AND FOREMOST,
THE POSSIBILITY OF AN
ACQUITTAL, AS WELL AS
STANDARDS OF PROOF, RIGHT TO
A DEFENCE, RIGHT TO LEGAL
ASSISTANCE, AND
PROPORTIONALITY OF PUNISHMENT.
THIS IS WHAT I WOULD CALL
THE EXISTING COMMON GROUND.
NO ONE ARGUES FOR LESS THAN
FAIR WAR CRIMES TRIALS AS WE
UNDERSTAND THAT NOTION OF
FAIRNESS BECAUSE THOSE WHO
WOULD ARE ACTUALLY ARGUING
FOR NO TRIALS AT ALL.
WHAT I WOULD LIKE TO ADDRESS
BRIEFLY IS LESS THIS COMMON
GROUND, THIS MODICUM OF
FAIRNESS AND DUE PROCESS,
THAT REFLECTS THE WESTERN
LEGAL IMPERIALISM AT THE
ROOT OF THIS INTERNATIONAL
JUDICIAL ADVENTURE, BUT
RATHER THE UNIQUENESS OF THE
INTERNATIONAL PROJECT AND,
MORE POINTEDLY, THE
UNIQUENESS OF THE WAR CRIME
TRIAL ITSELF.
EVEN IF WE DID SO ONLY TO
MEASURE THE PERFORMANCE OF
THESE INSTITUTIONS, I
BELIEVE THAT WE MUST
ARTICULATE REALISTIC
EXPECTATIONS ABOUT WHAT
CRIMINAL JUSTICE CAN AND
SHOULD ATTEMPT TO ACCOMPLISH
INTERNATIONALLY AND WE MUST
DO SO WITHIN A FRAMEWORK
THAT DOES NOT SIMPLY MIMIC
THE ASSUMPTIONS THAT WE MAKE
ABOUT THE ROLE OF CRIMINAL
LAW IN OUR OWN SOCIETIES.
IN THE EARLY STAGES OF
LAUNCHING THE TRIBUNALS,
THE MAIN RATIONALE THAT WAS
OFTEN ADVANCED FOR THEIR
EXISTENCE WAS THAT THEY WERE
TO BE AN INSTRUMENT, NOT
ONLY OF PEACE, BUT OF
RECONCILIATION AMONGST
PEOPLE BY REMOVING THE TAINT
THAT THE CRIMES OF THEIR
LEADERS IMPOSED ON
ENTIRE POPULATIONS.
IT IS ARGUED THAT THE
IMPOSITION OF PERSONAL
CRIMINAL RESPONSIBILITY ON
LEADERS WILL SERVE TO REMOVE
THE LEGACY OF COLLECTIVE
GUILT AND RESPONSIBILITY.
NOW THAT ARGUMENT, IN MY VIEW,
IS ONLY PARTIALLY USEFUL.
IT IS NOT ALL THAT
CONVINCING WHEN THE PERSONS
TARGETED FOR PROSECUTIONS
WERE, IN FACT, ELECTED LEADERS
WHO ENJOYED SUSTAINED
SUPPORT FROM THE POPULATION
WHILE THEIR WIDESPREAD AND
SYSTEMATIC CRIMES WERE
UNFOLDING IN A BLATANT AND
WIDELY REPORTED MANNER,
UNLESS OF COURSE ONE
ACCEPTS, AS I DO, THAT THEY
ARE CIRCUMSTANCES WHERE
REPRESSED OR MANIPULATED
POPULATIONS BECOME SIMPLY
UNWILLING AND THEREFORE
UNABLE TO ACCEPT THE
MOST OBVIOUS TRUTH.
THIS BECOMES EVEN MORE
PROBLEMATIC WHEN THE
CRIMINAL ACTIVITIES
ENGINEERED OR TOLERATED BY
THESE LEADERS REQUIRE THE
MASSIVE PARTICIPATION OF
LARGE SEGMENTS OF
THE POPULATION.
FOR INSTANCE, DURING
THE GENOCIDE IN RWANDA.
AND, FINALLY, THIS
ERADICATION OF GROUP GUILT IS
ALSO DIFFICULT WHEN THE
CRIMES PERPETRATED BY THE
LEADERS WERE LINKED TO THE
ADVANCEMENT OF GROUP CLAIMS
OF ENTITLEMENT, BASED,
FOR INSTANCE, ON ALLEGED
UNSETTLED HISTORICAL
GRIEVANCES OR WORSE, ON
ASSERTIONS OF RACIAL, ETHNIC,
OR RELIGIOUS SUPERIORITY.
I WOULD SUGGEST THAT IN
ADDITION TO THIS RATIONALE
FOR PERSONAL CRIMINAL
RESPONSIBILITY THE HOLDING
OF AN INTERNATIONAL TRIAL IS
IN ITSELF A MAJOR POSITIVE
STEP TOWARDS PEACE
AND RECONCILIATION.
NOT THAT THE TRIAL PROCESS HAS
AN IMMEDIATE CALMING EFFECT.
QUITE THE OPPOSITE.
THE ISSUANCE OF INDICTMENTS,
THE ARREST OF INDICTEES, THE
UNFOLDING OF THE STORY IN
THE DRAMATIC STAGE OF AN
INTERNATIONAL COURTROOM
DISTURB THE SEMBLANCE OF
PEACE THAT COMES SOMETIMES FROM
IGNORANCE, OFTEN FROM SILENCE.
BUT MORE SO EVEN THAN
THE PUNISHMENT OF THE
PERPETRATOR, IT IS THE
PROCESS ITSELF, FROM
BEGINNING TO END, THAT SPEAKS
THE LANGUAGE OF PEACE.
THE INTEGRITY OF THE
CRIMINAL JUSTICE SYSTEM
IN THIS COUNTRY AND IN
MANY OTHERS, IS SO WELL
ENTRENCHED THAT WE EASILY
FORGET WHAT IT TELLS US
ABOUT WHO WE ARE
AND HOW WE LIVE.
OUR WILLINGNESS TO SUBMIT
OUR DISPUTES TO LEGAL
PROCESS, AND MORE
IMPORTANTLY, TO FOREGO ALL
RESPONSES TO INJURY EXCEPT
THOSE SANCTIONED BY LAW, IS
THE HALLMARK OF OUR CHOICE TO
LIVE IN PEACE WITH EACH OTHER.
IT IS EXCEEDINGLY RARE IN
DOMESTIC CRIMINAL LAW THAT
REGARDLESS OF THE OUTCOME,
A CRIMINAL TRIAL DOES NOT
SUFFICE TO STAY THE
HAND OF VENGEANCE.
GARY BASS CHOSE THAT
EXPRESSION AS THE TITLE OF
HIS BOOK ON INTERNATIONAL
CRIMINAL JUSTICE, REFERRING
TO THE WAY THIS IDEA WAS
SO POWERFULLY EXPRESSED BY
JUSTICE ROBERT JACKSON IN
HIS OPENING STATEMENT AT
NUREMBERG, AND I QUOTE:
THAT FOUR GREAT NATIONS,
FLUSHED WITH VICTORY AND
STUNG WITH INJURY, STAY
THE HAND OF VENGEANCE AND
VOLUNTARILY SUBMIT THEIR
CAPTIVE ENEMIES TO THE
JUDGMENT OF THE LAW IS ONE
OF THE MOST SIGNIFICANT
TRIBUTES THAT POWER HAS
EVER PAID TO REASON.
END OF QUOTE.
IF WE ARE TO EMBRACE THIS
VISION OF INTERNATIONAL WAR
CRIMES TRIALS, IT SEEMS
TO ME THAT WE MUST MAKE A
FUNDAMENTAL CHOICE ABOUT THE
TYPE OF TRIALS THAT SHOULD
BE THE NORM BEFORE AN
INTERNATIONAL COURT.
THEY ARE FUNDAMENTALLY
TWO BROAD OPTIONS.
ONE IS TO ASSERT MODEST
OBJECTIVES FOR THE TRIAL ITSELF.
IT'S ALREADY A MONUMENTAL
TASK TO RECONSTITUTE THE
CRIME IN ITS NARROW
TECHNICAL CONCEPTION.
THE PLANNING, FOR EXAMPLE,
AND THE EXECUTION OF THE
MASSIVE HOMICIDES IN
THE PRE-DEFINED LEGAL
CIRCUMSTANCES THAT MAKES
THOSE KILLINGS A CRIME WITH
AN INTERNATIONAL COMPETENCE.
THIS IS ALREADY A
CHALLENGING TASK IN THE
HYPER-SKEPTICAL AND
HYPER-CRITICAL ENVIRONMENT
IN WHICH THIS KIND OF
COURT MUST OPERATE.
IN THAT MODEL, THE OVERALL
STRATEGY WOULD THEREFORE BE
TO PROCEED ON A NARROWLY
FOCUSED, ALMOST CLINICAL
FASHION, APPARENTLY
OBLIVIOUS TO ANY ISSUE THAT
IS NOT DIRECTLY RELEVANT TO
THE GUILT OR INNOCENCE OF
THIS PARTICULAR ACCUSED.
SO THE DICTATES OF THAT
MODEL WOULD BE TO KEEP IT
ALWAYS AS SIMPLE AS POSSIBLE
AND TO MOVE EXPEDITIOUSLY TO
THE FINAL DISPOSITION OF
EVERY INDIVIDUAL CASE.
THE SECOND MODEL IS TO
COMMIT TO THE EXPOSITION
OF THE LARGER PICTURE.
TO PAINT THE BROAD AND
COMPLEX HISTORICAL FRESCO,
IN AN EFFORT NOT ONLY TO
EXPOSE AND RECORD INDIVIDUAL
GUILT, BUT TO EXPLOIT THE
DRAMATIC STAGE OF THE TRIAL
TO CONSTRUCT THE COLLECTIVE
MEMORIES UPON WHICH BOTH
VICTIMS AND PERPETRATORS,
INDEED WHOLE NATIONS, WILL
BE CLEANSED OF
THEIR BRUTAL PAST.
AND FOR A VERY COMPELLING
ADVOCACY OF THIS MODEL,
THERE'S A RECENT BOOK AGAIN
BY MARK OSIEL CALLED
MASS ATROCITY, COLLECTIVE
MEMORY AND THE LAW.
CONSIDERING THE CRIMES UNDER
SCRUTINY, AND THE EFFORTS
INVESTED IN PROSECUTING THEM
INTERNATIONALLY, THIS SECOND
MODEL HAS
CONSIDERABLE APPEAL.
A COMMITMENT TO THAT MODEL,
HOWEVER, HAS SERIOUS
IMPLICATIONS THAT HAVE TO BE
ARTICULATED AND ACCEPTED AS
THE INEVITABLE COST OF
SUCH AN AMBITIOUS PROJECT.
FURTHERMORE, IT'S IMPORTANT
AT THE VERY OUTSET TO
QUESTION WHETHER IT'S
REALISTIC FOR A CRIMINAL
PROSECUTOR TO UNDERTAKE
THE TASK OF A HISTORIAN.
THE CRIMINAL PROSECUTION
PROJECT IS CONSIDERABLY MORE
THREATENING THAN THAT OF THE
HISTORIAN FOR POPULATIONS
WHICH HAVE ALREADY
CONSTRUCTED COLLECTIVE
MEMORIES WHERE COURTROOM
QUALITY TRUTH DOES NOT
CONSTITUTE A
MAJOR INGREDIENT.
HISTORY LEAVES
ROOM FOR DOUBT.
HISTORY IS A
FLUID PROJECT.
IT'S A STORY IN MOTION WHICH
STRIVES FOR A RECONSTRUCTION
OF THE PAST, INFORMED,
UNDERSTOOD, AND THEREFORE
REVISED IN LIGHT OF THE
PRESENT AND EVEN OF THE FUTURE.
JUSTICE, ON THE OTHER
HAND, IMPOSES
IRREVERSIBLE CONCLUSIONS.
IT BINDS ITSELF TO A
PERMANENT AND OFFICIAL
INTERPRETATION OF FACTS,
OFTEN FOLLOWED BY
IRREVERSIBLE HARSH
CONSEQUENCES.
IT FAVOURS DETAILED
RECONSTRUCTIONS OF WELL
DEFINED, NARROWLY BASED EVENTS
TO A VERY HIGH STANDARD OF
PROOF IN ORDER TO SATISFY
ITS OWN NEED FOR FINALITY.
THE NEED FOR REVISION AND
WORSE, THE POSSIBILITY OF
ERROR, MUST BE KEPT TO A
MINIMUM, BOTH FOR THE SAKE
OF THOSE WHO WOULD HAVE
SUFFERED THE IRREVERSIBLE
CONSEQUENCES OF THE ORIGINAL
ERRONEOUS JUDGMENT, AND FOR
THE SAKE OF THE CREDIBILITY
AND THEREFORE THE ONGOING
LEGITIMACY OF THE
JUSTICE PROJECT ITSELF.
AT THE SAME TIME, THE REAL
POSSIBILITY OF THE CRIMINAL
TRIAL PRODUCING AN
ACQUITTAL, THAT POSSIBILITY
BEING, IN MY VIEW, A SINE
QUO NON OF FAIR PROCESS,
CAN BECOME AN AFFRONT TO
HISTORICAL ACCURACY SINCE
THE ACQUITTAL WILL BE
PORTRAYED BY SOME AS AN
OFFICIAL REPUDIATION OF ALL
THAT WAS ALLEGED BY THE
PROSECUTION, INCLUDING THE
CONTEXT THAT THE LAW MADE
RELEVANT THE CULPABILITY.
NOW LET ME TURN TO
EXAMPLES OF THESE
KINDS OF TENSIONS.
THE ICTY, THE TRIBUNAL FOR
YUGOSLAVIA, IS GIVEN THE POWER
TO PROSECUTE PERSONS
RESPONSIBLE FOR GRAVE
BREACHES OF THE
GENEVA CONVENTIONS.
IN ORDER TO PROVE SUCH
GRAVE BREACHES, WHICH WOULD
INCLUDE, FOR INSTANCE,
MURDER AND RAPE, IT MUST BE
DEMONSTRATED THAT THE
FORBIDDEN ACTS OCCURRED IN
THE CONTEXT OF AN
INTERNATIONAL ARMED CONFLICT.
THEREFORE, THIS REQUIREMENT
BECOMES PART OF THE OFFENCE
AND CONSEQUENTLY OF THE
CHARGE, BY THE WAY IN WHICH
THE TRIBUNAL'S
JURISDICTION IS DEFINED.
BECAUSE THE CRIMINAL BURDEN
OF PROOF APPLIES TO ALL
ELEMENTS OF THE OFFENCE, THE
PROSECUTOR MUST THEN PROVE
BEYOND A REASONABLE DOUBT
THAT THE CRIMES WERE
COMMITTED DURING AN
INTERNATIONAL ARMED CONFLICT.
NOW INTERNATIONAL LAW HAS
A LOT TO SAY ABOUT WHEN AN
ARMED CONFLICT CAN BE SAID
TO HAVE BECOME INTERNATIONAL
IN NATURE.
FOR EXAMPLE, THIS MAY
REQUIRE PROOF OF THE
INVOLVEMENT OF A FOREIGN ARMY
TO A LEGALLY DEFINED DEGREE.
THIS KIND OF FACTUAL
ASSERTION IS NOT THE
STANDARD FARE OF CRIMINAL
TRIALS AS WE KNOW THEM,
AND THEY WOULD TYPICALLY BE
DOCUMENTED BY HISTORIANS AND
BY MILITARY ANALYSTS RATHER
THAN BY CRIMINAL LAWYERS.
FOR INSTANCE, IN THE CASE
OF TADEUSZ IN THE YUGOSLAV
TRIBUNAL, THE TRIAL CHAMBER
FOUND THAT THE CONFLICT IN
THE FORMER YUGOSLAVIA WAS
NOT OF AN INTERNATIONAL
CHARACTER AT THE TIMES
THAT WERE RELEVANT TO THE
PARTICULAR CHARGES, AND
TADEUSZ WAS CONSEQUENTLY
ACQUITTED ON SEVERAL COUNTS,
ALTHOUGH THIS FINDING WAS
EVENTUALLY
OVERTURNED ON APPEAL.
IN A SIMILAR FASHION, THE
TRIBUNAL FOR RWANDA HAS
JURISDICTION TO PROSECUTE
VIOLATIONS OF COMMON ARTICLE 3
OF THE GENEVA CONVENTIONS,
NAMELY, WAR CRIMES OCCURRING
IN THE CONTEXT OF ARMED
CONFLICT NOT OF AN
INTERNATIONAL CHARACTER.
IN OTHER WORDS, AN
INTERNAL ARMED CONFLICT.
IN THE AKAYESU CASE, THE
TRIAL CHAMBER FOUND THAT
IT WAS PROVED BEYOND A
REASONABLE DOUBT THAT SUCH
A CONFLICT WAS TAKING
PLACE IN RWANDA.
HOWEVER, THE COURT HELD
THAT IN ORDER TO SECURE A
CONVICTION, THE PROSECUTION
ALSO HAS TO PROVE BEYOND A
REASONABLE DOUBT THAT
AKAYESU WAS A MEMBER OF THE
ARMED FORCES UNDER THE
MILITARY COMMAND OF EITHER
OF THE BELLIGERENT PARTIES
OR THAT HE WAS LEGITIMATELY
MANDATED AND EXPECTED AS A
PUBLIC OFFICIAL OR PERSON
OTHERWISE HOLDING PUBLIC
AUTHORITY OR OTHERWISE
DE FACTO REPRESENTING THE
GOVERNMENT, TO SUPPORT OR
TO FULFILL THE WAR EFFORTS.
IT WAS DECIDED THAT THIS
REQUIREMENT HAD NOT BEEN MET
AND THAT IT WAS NOT SHOWN
THAT THE ACTS PERPETRATED BY
THE ACCUSED WERE COMMITTED
IN CONJUNCTION WITH THAT
ARMED CONFLICT AND AS
A RESULT, AKAYESU WAS
ACQUITTED OF THE COUNTS
RELATED TO THE VIOLATIONS OF
THE GENEVA CONVENTIONS AND
THIS MATTER IS PENDING
BEFORE THE APPEALS CHAMBER.
NOW IN BOTH THESE CASES, THE
LEGAL CHARACTERIZATION OF
THE CONFLICT WITHIN WHICH
THE MURDERS AND THE RAPES
WERE COMMITTED DOES NOT
RELATE SIGNIFICANTLY TO THE
ISSUE OF THE ACCUSED
MORAL CULPABILITY.
IF WE WERE CONCERNED
EXCLUSIVELY WITH PERSONAL
CRIMINAL LIABILITY, IT IS
ARGUABLE THAT IN THE EVENT
THAT THE TRIBUNAL
MISCHARACTERIZED THE NATURE
OF THE CONFLICT, NO
MISCARRIAGE OF JUSTICE WOULD
OCCUR AS LONG AS IT WAS
STILL PROVED BEYOND A
REASONABLE DOUBT THAT THE
ACCUSED HAD COMMITTED THE
MURDERS OR THE RAPES.
AND YET WHAT LEGITIMACY, IN
FACT, WHAT POINT WOULD THERE
BE FOR THE INTERNATIONAL
COMMUNITY TO PROSECUTE A
Mr. TADEUSZ OR A Mr. AKAYESU
IF THEIR ALLEGED CRIMES
COULD NOT BE LINKED TO THE
DISTURBANCE OF INTERNATIONAL
PEACE THAT TRIGGERED
THE INVOLVEMENT OF THE
INTERNATIONAL COMMUNITY
IN THE FIRST PLACE.
ISN'T IT AN IMPORTANT PART OF
THE TRIBUNAL'S ROLE TO EXPOSE
THE TRUTH AND IN DOING
SO, TO CHARACTERIZE THE
HISTORICAL CONTEXT
APPROPRIATELY?
BUT THEN AGAIN,
CAN IT DO THAT?
MARK OSIEL OBSERVED THAT
JURISDICTION OVER LEGAL
REQUIREMENTS OF CRIMINAL
CHARGES CAN, IN FACT, CREATE
MAJOR HISTORICAL
DISTORTIONS.
HE GIVES AS AN EXAMPLE THE
REQUIREMENT IN THE LONDON
CHARTER WHICH CREATED THE
NUREMBERG TRIBUNAL THAT
CRIMES AGAINST HUMANITY
BEFORE THAT COURT BE
PROSECUTED ONLY IF THEY WERE
UNDERTAKEN IN PREPARATION
FOR, OR IN SERVICE
OF AGGRESSIVE WAR.
OSIEL THEN SAYS, AND I
QUOTE: THIS JURISDICTIONAL
PECULIARITY REQUIRED
PROSECUTORS TO WEAVE THE
HOLOCAUST INTO A LARGER
STORY THAT WAS PRIMARILY
ABOUT PERVERTED MILITARISM.
END OF QUOTE.
IN ORDER TO OVERCOME THESE
DISTORTIONS AND REMAIN TRUE
TO THE FULL PURPOSE OF
INTERNATIONAL CRIMINAL
TRIALS, OSIEL ARGUES THAT
PROSECUTORS MUST TAKE A
BROAD VIEW OF RELEVANCE
AND EXPOSE AS MUCH OF THE
CONTEXT AS WILL SERVE TO
DISPLACE THE FOCUS THAT IS
REQUIRED SOLELY BY
LEGAL IMPERATIVES.
ON DECEMBER 9, 1946,
BRIGADIER GENERAL TELFORD
TAYLOR, CHIEF OF COUNSEL
FOR THE PROSECUTION BEFORE
MILITARY TRIBUNAL ONE IN
NUREMBERG GERMANY MADE HIS
OPENING STATEMENT IN CASE
NUMBER ONE, OFFICIALLY
DESIGNATED AS UNITED
STATES OF AMERICA VERSUS
KARL BRANDT ET AL.
THAT CASE AGAINST 23
DEFENDANTS WAS TO BECOME
KNOWN AS THE MEDICAL CASE,
OR THE DOCTORS' TRIAL.
TELFORD TAYLOR
SAID, AND I QUOTE:
IT IS OWED NOT ONLY TO THE
VICTIMS AND TO THE PARENTS
AND CHILDREN OF THE VICTIMS,
THAT JUST PUNISHMENT BE
IMPOSED ON THE GUILTY, BUT
ALSO TO THE DEFENDANTS THAT
THEY BE ACCORDED A FAIR
HEARING AND DECISION.
SUCH RESPONSIBILITIES
ARE THE ORDINARY BURDEN
OF ANY TRIBUNAL.
FAR WIDER ARE THE DUTIES
WHICH WE MUST FULFILL HERE.
THE DEFENDANTS IN THE DOCK
ARE CHARGED WITH MURDER, BUT
THIS IS NO MERE
MURDER TRIAL.
WE CANNOT REST CONTENT WHEN
WE HAVE SHOWN THAT CRIMES
WERE COMMITTED AND THAT
CERTAIN PERSONS COMMITTED THEM.
IT IS OUR DEEP OBLIGATION TO
ALL PEOPLES OF THE WORLD TO
SHOW WHY AND HOW THESE
THINGS HAPPENED.
IT IS INCUMBENT UPON US TO
SET FORTH WITH CONSPICUOUS
CLARITY THE IDEAS AND
MOTIVES WHICH MOVED THESE
DEFENDANTS TO TREAT THEIR
FELLOW MAN AS LESS THAN BEASTS.
THE PERVERSE THOUGHTS AND
DISTORTED CONCEPTS WHICH
BROUGHT ABOUT THESE
SAVAGERIES ARE NOT DEAD.
THEY CANNOT BE KILLED
BY FORCE OF ARMS.
THEY MUST NOT BECOME A
SPREADING CANCER IN THE
BREAST OF HUMANITY.
END OF QUOTE.
15 OF THE 23 DEFENDANTS
WERE FOUND GUILTY IN THE
DOCTORS' TRIAL AND 7,
INCLUDING 4 PHYSICIANS,
WERE SENTENCED TO
DEATH BY HANGING.
IN REVIEWING THE EVIDENCE,
THE TRIBUNAL CONCLUDED THAT
THE EXPERIMENTS WHICH HAD
FORMED THE BASIS OF THE
CHARGES OF WAR CRIMES AND
CRIMES AGAINST HUMANITY WERE
PERFORMED IN COMPLETE
DISREGARD OF INTERNATIONAL
NORMS OF THE LAWS AND
CUSTOMS OF WAR, AND OF THE
GENERAL PRINCIPLES OF
CRIMINAL LAW AS DERIVED FROM
THE CRIMINAL LAWS OF
ALL CIVILIZED NATIONS.
ON THE OTHER HAND, THE
TRIBUNAL RECOGNIZED THE
LEGITIMACY AND THEREFORE THE
LEGALITY OF CERTAIN FORMS OF
MEDICAL EXPERIMENTATION
ON HUMAN BEINGS, AND THE
TRIBUNAL ARTICULATED THE
EXISTENCE OF A CONSENSUS
THAT CERTAIN BASIC
PRINCIPLES MUST BE OBSERVED
IN ORDER TO SATISFY MORAL,
ETHICAL AND LEGAL CONCEPTS.
THE TRIBUNAL THEN PROCEEDED
TO ENUNCIATE THE TEN BASIC
PRINCIPLES WHICH BECAME
KNOWN AS THE NUREMBERG CODE.
COMMENTING ON THE
SIGNIFICANCE OF THE
ARTICULATION OF A CODE OF
MEDICAL RESEARCH IN THE
CONTEXT OF A CRIMINAL TRIAL,
MICHAEL GRODIN, A PHYSICIAN
AND BIOETHICIST WHO
CO-AUTHORED A MAJOR
SCHOLARLY WORK ON THE DOCTOR'S
TRIAL AND ON THE NUREMBERG
CODE SAID THIS:
"THE TEN PRINCIPLES
ARTICULATING THE ACCEPTABLE
LIMITS OF HUMAN
EXPERIMENTATIONS MUST BE
UNDERSTOOD IN THE CONTEXT
OF THE CRIMINAL TRIAL.
NAZI PHYSICIANS AND
SCIENTISTS HAD CARRIED OUT
EXTENSIVE HUMAN
EXPERIMENTATION DURING THE WAR.
THE APPROPRIATE STANDARD
FOR THE CONDUCT OF HUMAN
EXPERIMENTATION WAS A MAJOR
THEME RECURRING THROUGHOUT
THE TRIAL.
WHILE THE TRIBUNAL'S FOCUS
WAS ON THE CRIMINAL NATURE
OF THE NAZI EXPERIMENTS, THE
JUDGES WERE ALSO GRAPPLING
WITH A MUCH BROADER CONCERN
REGARDING MEDICAL RESEARCH.
THE TRIAL COURT SAW THE
HISTORICAL FRAMEWORK OF
MEDICAL STANDARDS FROM
WHICH TO JUDGE THE NAZI
PHYSICIANS, AND IT ATTEMPTED
TO ELUCIDATE THE SCOPE OF
MEDICAL EXPERIMENTATION
UNDERTAKEN BY THE NAZIS AND
OTHER PHYSICIANS AND
SCIENTISTS DURING WORLD WAR II.
THE NUREMBERG CODE WAS NOT
THE FIRST CODE OF HUMAN
EXPERIMENTATION, NOR WAS
IT THE MOST COMPREHENSIVE.
PERHAPS IT WAS THE
UNPRECEDENTED NATURE OF THE
ATROCITIES COMMITTED BY THE
NAZI PHYSICIANS THAT HAS
MADE THE NUREMBERG CODE THE
HALLMARK FOR ALL SUBSEQUENT
DISCOURSE ON THE ETHICS
OF HUMAN EXPERIMENTATION.
BECAUSE THE CODE WAS WRITTEN
IN RESPONSE TO ACTS OF A
SCIENTIFIC AND MEDICAL
COMMUNITY OUT OF CONTROL,
IT IS NOT SURPRISING THAT
VOLUNTARY INFORMED CONSENT
WAS ITS CRITICAL CENTREPIECE
IN THE PROTECTION OF
HUMAN SUBJECTS, ITS
PARAMOUNT CONCERNS."
THIS IS PROBABLY THE MOST
COMPELLING CASE FOR A
CONCEPTION OF INVESTIGATION,
PROSECUTION AND TRIALS
BEFORE INTERNATIONAL COURTS
THAT EMBRACE A PURPOSE MUCH
LARGER THAN DOMESTIC
CRIMINAL TRIALS.
THE CONCEPTION OF THE
MISSION OF INTERNATIONAL
JUSTICE MUST TRANSLATE INTO
SETS OF RULES, OF PROCEDURE
AND EVIDENCE, THAT HAVE
SUFFICIENT BREADTH TO FOSTER
THAT OBJECTIVE WITHOUT
COMPROMISING THE GUARANTEES
OF FAIRNESS TO INDIVIDUAL
DEFENDANTS WITHOUT WHICH
RECOURSE TO PERSONAL
CRIMINAL RESPONSIBILITY CAN,
IN MY VIEW, NEVER
BE JUSTIFIED.
IT IS ALSO WITH THIS BROAD
PURPOSE IN MIND, THAT THE
WORK OF INTERNATIONAL
JUDICIAL INSTITUTIONS
SHOULD BE EVALUATED.
IT SHOULD AVOID THE
GLORIFICATION OF INDIVIDUAL
DEFENDANTS TO THE POINT
OF WRITING OFF THE ENTIRE
ENTERPRISE IF THEY ARE
NOT TRIED AND CONVICTED.
AND IT SHOULD ALSO RESIST
THE PRESSURE FOR THE
SPEEDIEST DISPOSITION OF THE
LARGEST NUMBER OF CASES.
THERE ARE MANY LESSONS
EMERGING FROM THE MODERN
INTERNATIONAL CRIMINAL
PROSECUTION EFFORTS.
THEY WILL CONTINUE TO
DEMONSTRATE THAT PERSONAL
CRIMINAL RESPONSIBILITY
FOR WAR CRIMES AND CRIMES
AGAINST HUMANITY CAN FIND
ITS PROPER PLACE AS AN
INTEGRATED MEASURE AT
PLAY WITH OTHER FORMS OF
INTERNATIONAL INTERVENTION
BY WHICH TO PROMOTE PEACE
AND TO ENSURE FOR ALL
HUMAN RIGHTS HOLDERS AN
APPROPRIATE BALANCE BETWEEN
SECURITY AND LIBERTY.
LIBERAL DEMOCRACIES HAVE
LONG BEEN ENGAGED IN THE
SEARCH FOR THAT PROPER
BALANCE WHICH IS BEST
DESCRIBED BY HERBERT PACKER
IN HIS MOST INFLUENTIAL 1968
BOOK,
THE LIMITS OF
THE CRIMINAL SANCTION.
PACKER SAYS THE FOLLOWING:
"LAW, INCLUDING THE CRIMINAL
LAW, MUST IN A FREE SOCIETY
BE JUDGED ULTIMATELY ON THE
BASIS OF ITS SUCCESS IN
PROMOTING HUMAN AUTONOMY AND
THE CAPACITY FOR INDIVIDUAL
HUMAN GROWTH AND
DEVELOPMENT.
THE PREVENTION OF CRIME IS
AN ESSENTIAL ASPECT OF THE
ENVIRONMENTAL PROTECTION
REQUIRED IF SUCH AUTONOMY IS
TO FLOURISH.
IT IS, HOWEVER, A NEGATIVE
ASPECT AND ONE WHICH PURSUED
WITH SINGLE-MINDED ZEAL
MAY END UP CREATING AN
ENVIRONMENT IN WHICH ALL
ARE SAFE BUT NONE ARE FREE.
IN SEARCHING FOR AN
APPROPRIATE FOUNDATION FOR
THE EMERGING DISCIPLINE
OF INTERNATIONAL CRIMINAL
JUSTICE, WE HAVE VERY LITTLE
TO FEAR FROM THE OVERREACH
OF LEGAL REPRESSIVE
MEASURES."
PACKER'S CONCERNS WERE
DIRECTED AT POWERFUL STATES,
NOT FAILED ONES.
INTERNATIONAL CRIMINAL LAW
REACHES OUT TO THOSE WHO
LIVE IN STATES WHERE NONE
ARE SAFE AND NONE ARE FREE.
WHEN WE ACTIVATE THE MOST
REPRESSIVE FORM OF LEGAL
INTERVENTION... IN FACT, IN
MY VIEW, MORE IMPORTANTLY,
WHEN WE HAVE TO USE
REPRESSIVE LEGAL MEASURES
LIKE CRIMINAL PENALTIES, IT
IS CRITICAL TO REMEMBER, AS
PACKER OBSERVED, THAT THE
ULTIMATE GOAL OF LAW IN A
FREE SOCIETY IS TO LIBERATE,
RATHER THAN TO RESTRAIN.
OF PARTICULAR SIGNIFICANCE,
IN MY VIEW, IN THE
INTERNATIONAL CONTEXT,
PACKER ADDS THE FOLLOWING:
"THE SINGULAR POWER OF
THE CRIMINAL LAW RESIDES
NOT IN ITS COERCIVE EFFECT ON
THOSE CAUGHT IN ITS TOILS,
BUT RATHER IN ITS EFFECTS
ON THE REST OF US.
THAT EFFECT, I'VE TRIED TO
SHOW, IS A HIGHLY COMPLEX ONE.
IT DOES INCLUDE ELEMENTS OF
COERCION AND TERROR, SUCH AS
IF I DO AS HE DID, I TOO
SHALL SUFFER FOR IT.
BUT IT ALSO INCLUDES
CONSCIOUS AND UNCONSCIOUS
MORALIZING AND HABIT-FORMING
EFFECTS THAT GO FAR BEYOND
THE CRASSNESS OF A NARROWLY
CONCEIVED DETERRENCE."
EXPRESSED THIS WAY, THE AIM
OF THE CRIMINAL SANCTION CAN
NOT BE REDUCED TO AN EXACT
MEASUREMENT OF ITS POTENTIAL
DETERRENT EFFECT, EVEN IF SUCH
MEASUREMENT WERE FEASIBLE.
RATHER IT SERVES TO AFFIRM
A SHARED PREFERENCE FOR
LAW-ABIDING CONDUCT AND THEN
IT BECOMES THE BASIS UPON
WHICH A COMMUNITY OF
LIKE-MINDED INDIVIDUALS OR
LIKE-MINDED NATIONS IS
FORMED AND NURTURED.
IN ADDITION TO RELYING
ON CLASSIC DETERRENCE BY
THREAT, IT RELIES ON THE
APPETITE, INDEED ON THE
BASIC NEED FOR BELONGING.
IN THAT CONTEXT, IT IS TRULY
ASTONISHING THAT POWERFUL
PERPETRATORS OF ATROCITIES
HAVE NOT ONLY REMAINED
UNPUNISHED OVER THE YEARS,
BUT THAT THEY HAVEN'T EVEN
BEEN OSTRACIZED.
IT IS THE 'THEM AMONGST US'
THAT MUST BE ADDRESSED
THROUGH THE EXPOSITION OF
THEIR CRIMES BECAUSE AS LONG
AS THEY ARE AMONG
US, WE ARE THEM.
IF WE EXPLOIT THE FULL
POTENTIAL OF CRIMINAL TRIALS
FOR WAR CRIMES, WE SHOULD
DO SO IN PART TO PUNISH,
IN PART TO DETER BUT.
MOST IMPORTANTLY,
TO TRY TO UNDERSTAND.
THANK YOU VERY MUCH.

The audience rises and applauds.

Classical music plays as the end credits roll.

Comments and queries, email: bigideas@tvo.org

Telephone: (416) 484-2746.

Big Ideas, TVONTARIO, Box 200, Station Q, Toronto, Ontario, Canada. M4T 2T1.

Producer, Wodek Szemberg.

Associate Producer, Mike Miner.

Sound, Maurice Dalzot.

Executive Producer, Doug Grant.

A production of TVOntario. Copyright 2001, The Ontario Educational Communications Authority.

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