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Nabbing the devil : practical considerations in the use of armed force in the apprehension and arrest.. Thomson, Gordon 2005

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NABBING THE DEVIL Practical Considerations in the Use of Armed Force in the Apprehension and Arrest of Persons Indicted for War Crimes by GORDON THOMSON A. A. Mus., Camosun College, 1980 LL.B., University of British Columbia, 1999 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAW in THE FACULTY OF GRADUATE STUDIES LAW THE UNIVERSITY OF BRITISH COLUMBIA April 2005 © Gordon Thomson, 2005 Abstract This thesis considers the challenges faced by international criminal tribunals in gaining physical jurisdiction over those persons indicted for the commission of war crimes, crimes against humanity and genocide. The thesis covers the need for justice for victims of such crimes, the history of the laws of war, war crimes and their prosecution, the need for an interdiction instrument, the legal basis for acting with force to arrest indictees, the use of military force to effect such arrests, and some of the various political and practical issues that arise in such use of force. I sought out first hand quotes and stories contained in various media sources, books and court transcripts to lend a voice to the victims. Substantiating the requirement for justice, I researched the written works and oral texts of academics, politicians, jurists, and senior military commanders, who have experienced firsthand the difficulties in preventing atrocities and prosecuting accused. To concisely discuss the history of the laws of war, I studied various academic works on the conduct of war including the writings of various history, religious and legal academics, as well as several primary source documents, including religious texts. In considering current international tribunals, I relied on treaty and customary international law documents, United Nations' documentation, and the current tribunals' statutes. The case law on extraterritorial detention of accused was found in trial and appellate court decisions from the United States, United Kingdom, South Africa, Israel and the ICTY. The thesis concludes that current international tribunals lack necessary mechanisms for enforcing indictments and thus ensuring that accused are brought before the courts' jurisdiction. In light of this inadequacy, a practical mechanism is needed to effect the interdiction and arrest of indictees for current and future international criminal tribunals. In conclusion, the use of military force to secure the detention and delivery of accused before the jurisdiction of issuing courts can be justified and should be utilized when other options have failed to effect with celerity, the accused's arrest. iv CONTENTS Abtract ii Table of Contents iv Acknowledgements vii CHAPTER 1 Of War, Crime and Prosecution A. Crimes Beyond Imagining 1 B. Justice Required 8 C. Justice Enacted 15 D. Justice Achieved? 8 CHAPTER 2 Of Blood, Toil, Tears and Sweat: Methodology 24 CHAPTER 3 The Bloody Trail: A Short History of Conduct in War and Social Responses A. War Crimes: Historical Antecedents 33 B. War Crimes: Nineteenth and Twentieth Centuries 57 C. War Crimes: Contemporary Developments and Responses .. 69 CHAPTER 4 Nabbing the Devil A. The Game Is Afoot: Gaining Jurisdiction 78 (i) ICTY and ICTR 7(ii) ICC 80 (iii) Difficulties in Warrant Enforcement... 83 B. Unleashing the Hounds: The Need for Forcible Interdictions 88 C. Legal Justifications for the Use of Force 97 D. Authority to Operate in Non-War Situations .... 106 E. Political Considerations 118 (i) Political Consequences 119 (ii) Political Responsibilities 124 CHAPTER 5 This Hound Won't Hunt? Challenges in Using Force A. Police v. Military 128 B. Regular Forces v. Special Forces 132 C. Mission Capability Requirements 134 (i) Intelligence 13(ii) Combat Skills 140 (iii) Insertion and Extraction 141 (iv) Force-Capable Countries 142 D. Difficulties of Special Operations with a Multinational Force 143 (i) Training 14(ii) Equipment 4 (iii) Communications 145 CHAPTER 6 Biting the Hand: Operational Considerations A. Mission Impairment 147 B. Mission Creep 148 C. Retaliation 150 CHAPTER 7 Conclusions 151 Bibliography 158 Appendix 1 History of Former Yugoslavia 181 Appendix 2 Historical Context of the 1994 Events in Rwanda 198 Appendix 3 International Criminal Tribunal for vi the Former Yugoslavia 210 Appendix 4 International Criminal Tribunal for Rwanda 231 Appendix 5 Rome Statute 244 Appendix 6 Address of the Secretary-General to the UN General Assembly 319 Appendix 7 Reference List: War Crimes 325 Appendix 8 ICTY: Arrests and Voluntary Surrenders .... 337 ACKNOWLEDGEMENTS I wish to express my deepest thanks to Professor Peter Burns, who supported and inspired me throughout my studies. I also wish to extend my heartfelt appreciation to Associate Dean Wesley Pue and Professor Joel Bakan for their encouragement and help. Undertaking a project such as this can never be accomplished without the love and support of those closest to us. Lastly, I wish to dedicate this work to the victims of all too many conflicts that have occurred in our lifetime. 1 CHAPTER 1 Of War, Crime and Prosecution A. Crimes Beyond Imagining Despite advances over many centuries in the development of civilization, the depths of man's inhumanity to man seem only to have deepened with time. It is the last decade of the twentieth century, and the following examples are a very few among the very many during two egregious conflicts in the past fourteen years. To prepare to appreciate what is represented by these examples, a brief exercise in perspective on the part of the reader may prove useful. Imagine living through your worst nightmare, waking only to discover that the horror surrounding you is not a dream but one of war's stark realities. The deep anguish you have awoken from does not disappear when you blink your eyes but becomes worse, then worse again. You are, for now, alive and awake in a world where people are tortured, raped and murdered in ways along the continuum of depravity that are unthinkably malign. This is not just an external perspective; this is the reality of war and war crimes. These are acts of war criminals. A description of some of the specific acts of war criminals, in synopsis, may include accounts such as the following. 2 The year is 1999, and it is Saturday 12 June. The Bala family have lived in Pec for years. The paramilitary have decided to kill all the remaining Albanians living in Pec and have methodically set about doing it. Five of the seven children remain on the couch, their bodies punctured by bullets. Four of them are dead. Nita is unconscious and bleeding but still alive. Her mother Vjollca is also dead. Her aunt Halise has been shot eight times. Through both her arms, her torso, her breasts. The men think she is dead. Halise thinks she will be soon. Halise pulls herself up and stares at the dead children on the sofa and at Vjollca. They are slumped over each other, bleeding through their clothes. She drags herself through the house, looking for survivors, and she finds none Back in the living room, she sees that Nita is still alive but terribly wounded. ... "I'm not leaving my mummy," Nita says. "I'm not. She's going to wake up soon."1 Selman Morina of Golubovac, Albania, was a victim of what is known as the "forest massacre" on Saturday 26 September 1998 and was interviewed by Human Rights Watch on 1 October 1998. Mr. Morina recounted this experience: The last time I saw the women and children was in the field, so I do not know where they were taken. We were made to kneel with our hands behind our heads and faces touching the ground. ... I believe one policeman executed all of us. We were executed one by one. Each person was fired on twice with a burst from a machine gun. ... I heard the police say, "One is still alive," and they kicked him once and shot him again. They kicked me, too, but I didn't move and then they didn't touch me again. I survived because I remained totally dead.2 Criminals like Stanilav Galic, who commanded the Sarajevo Rorrianija Corps from September 1992 to August 1994, inflicted their depravity on ordinary people going about ordinary daily lives. 1 Mathew McAllester, "The Killing," Beyond the Mountains of the Damned: The War Inside Kosovo (New York: New York University Press, 2002), p. 172. 2 Peter Boukaert and Fred Abrahams, A Week of Terror in Drenica: Humanitarian Law Violations in Kosovo (New York: Human Rights Watch, 1999), pp. 51-53. 3 During that time, the Sarajevo Romanija Corps ... used shelling and sniping to kill, maim, wound and terrorize Sarajevo civilians. ... [and] wounded thousands of civilians of both sexes and all ages, including the elderly,... who were tending vegetable plots, queuing for bread, collecting water, attending funerals, shopping in markets, riding on trams, gathering wood or simply walking with their children or friends.3 Similarly, ordinary lives were cut and burned out of existence by criminal minds such as that of Major General Rahim Ademi, who, while Acting Commander of the Gospic Military District Operational Zone within the self-proclaimed Republika Srpska Krajina in September 1993, allegedly ordered a meticulously vicious handling of a certain rural area. [In] the Croatian military operation in the Medak Pocket, at least 38 local Serb civilians were unlawfully killed, and others sustained serious injury. Many of the killed and wounded civilians were women and elderly people. ... In addition, approximately 164 homes and 148 barns and outbuildings, being a majority of the buildings in the villages within the Medak Pocket, were destroyed, mostly by fire and explosives. During the above period, it is further alleged that property belonging to Serb civilians was plundered by Croatian forces or by persons in civilian clothes under the supervision of the Croatian forces. The property that was not plundered was burned or otherwise destroyed, farm machinery was riddled with bullets, farm animals were killed and wells were polluted.4 Authorities in the former Yugoslavia such as those of the Prijedor municipality, adopting an organizational method that had produced the worst horrors of the Second World War, gathered citizens into camps. [They] unlawfully segregated, detained and confined more than 7,000 Bosnian Muslims, Bosnian Croats and other non-Serbs from the Prijedor area in the Omarska, Trnopolje and Keraterm camps.... Severe 3ICTY, Galic case (IT-98-29). 4 ICTY Ademi case (IT-01-46). 4 beatings, killings as well as other forms of physical and psychological abuse, including sexual assault, are alleged to have been commonplace at the Omarska and Keraterm camps.5 The Chief of Security of the Main Staff of the Bosnian Serb Army, Colonel Ljubisa Beara, was responsible for dealing with Bosnian Muslim prisoners. He, too, appears to have drawn on prior example and on the depths of human behaviour in himself and in those under his command, when: .. .in the several days following the attack on Srebrenica, the VRS forces captured, detained, summarily executed and buried over 7,000 Bosnian Muslim men and boys from the Srebrenica enclave and forcibly transferred the Bosnian Muslim women and children of Srebrenica out of the enclave. According to the Indictment, [he] committed, planned, instigated, ordered and otherwise aided and abetted in the planning, preparation and execution of the charged crimes.6 Brutality and inhumane campaigns were not limited to the conflict in the former Yugoslavia. Concurrent with that event was the civil war that erupted in Rwanda, a war that also released profoundly base values that appear ever-present in the human psyche. Hamis Kamuhanda was eleven years old when his family in Rwanda heard about the downing of the Falcon 50 aircraft carrying the Rwandan president Juvenal Habyarimana on 6 April 1994. The assassination of the president, for such it was, would trigger one hundred days of unrelenting terror and bloodshed, culminating in the deaths of eight hundred thousand Rwandan citizens. 5ICTY, Banovic (IT-02-65/1). 6 ICTY, Beara case (IC-02-58). 5 The young Kamuhanda's story, horrific in itself, is one of hundreds of thousands of stories of anguish. The following day we had rumours that Hutus were out to kill every Tutsi in the country, claiming that we, the Tutsis, had killed the Hutu president. We were advised to stay indoors. ... Then there was a knock at the door and before we could even respond, the door fell in and about four or so people came in and dragged my father out by his legs. That was the last we saw of him. We were hiding under the bed, but we could see everything. Mother told us to keep quiet. Then the shooting began. ... One of them said: "Let's make sure he is dead — with this." I didn't move an inch, nor did I make any noise. They must have thought I was dead. I just felt a very sharp pain on my leg, and I must have passed out. They had cut off half his right leg. The armed Hutu men, the Interahamwe, were scattered and patrolling every corner. The situation was tense for a very long time, and we could smell the stench of the dead even inside our fenced house.7 Valentina Iribagiza, speaking through an interpreter, reported the experience of her own hell, where it was only by seeming dead that she lived through a bloody frenzy of killings: We were pretending to be dead. They took stones and smashed the heads of the bodies. They took little children and smashed their heads together. When they found someone breathing, they pulled them out and finished them off. They killed my family. I saw them kill my papa and my brother, but I didn't see what happened to my mother.8 The cycle of this slaughter appears never to reach an end, for the pain lives on not only in the victims but in their unborn offspring. Ms. Severa 7 "Eyewitness: A Survivor's Story," BBC News, Africa, Monday, 2 April 2001,12:15 GMT 13:15 UK. 8 Frontline #1710, "The Triumph of Evil," air date January 16,1999; Mike Robinson, Ben Loeterman, producers; Steve Bradshaw, Ben Loeterman, writers; Steve Bradshaw, reporter. 6 Mukakinani was forced to watch as her seven children were butchered. She was then repeatedly gang-raped by their murderers. "The raping went on for a long time — I don't know how long. When they tired of me, they cut and beat me and threw me in the river." She was left for dead but survived to find she was pregnant from the rapes. "I wanted to remove the baby. I decided to keep it, because I believe the child is innocent." She named her daughter Akimana, which means child of God.9 The nightmare of Rwanda affected not only the intended victims of the crimes but those who risked their lives to save the undefended. Dr. Zachariah, Chief Medical and Field Coordinator for Medecins sans frontieres based in the Butare region of Rwanda, reported on his experiences in the region at length. One observation he put on record provides an example of the situations that were occurring around him: On the road from Butare to Burundi on 19 April 1994, Dr. Zachariah stated that he saw civilians being massacred in villages throughout the countryside and at roadblocks. In his words: "All the way through we could see on the ... hillside, where there were communities, people ... being pulled out by people with machetes, and we could see piles of bodies. In fact, the entire landscape was becoming spotted with corpses...." [H]e arrived at the Burundian border on 24 April 1994. On the way to the border and at the border, he stated that he had crossed streams and rivers in which the mutilated corpses of men, women and children floated by at an estimated rate of five bodies every minute.10 9 "Out of Madness, A Matriarchy," Kimberlee Acquaro, Peter Landesman, Motherjones.com/January-February 2003 Issue. 10 ICTR, Hearing of 16 January 1997, pp. 98-99. 7 Brigadier General Henry Anyidoho, Deputy Commander, United Nations Assistance Mission in Rwanda (UNAMIR), observed other instances of blind blood-fever during the same civil war and commented: I couldn't believe it. You met men and women together at the roadblocks holding the cutlasses, or machetes, as they call them, and all of them sort of, like, they were singing war songs. And what were they looking for? Human beings to hack to death.11 Lieutenant General Romeo Dallaire, the thirty-five-year veteran Canadian soldier and Commander of the United Nations Observer Mission — Uganda and Rwanda, recalled that during the genocide: My force was standing knee-deep in mutilated bodies, surrounded by the guttural moans of dying people, looking into the eyes of children bleeding to death with their wounds burning in the sun and being invaded by maggots and flies. I found myself walking through villages where the only sign of life was a goat, or a chicken, or a songbird, as all the people were dead. Their bodies being eaten by voracious packs of wild dogs. During those seven to eight weeks of the war, with little mandate, no reinforcements in sight, and only one phone line to the outside world (which a mortar round knocked out for nineteen hours), I felt like the ghost of Gordon of Khartoum was watching over me. Dying in Rwanda without a sign or a sight of relief was a reality we faced on a daily basis.12 Those who have come through such circumstances, even when they reach a point when they can function without repeatedly breaking, are increasing in numbers. Some will not be heard because they cannot articulate in a public forum what it is they experienced. Some will tell what they can, where they are able, and will not be content with keeping silent. As those people emerge out of " Frontline #1710, "The Triumph of Evil." 12 Romeo. A. Dallaire, "ITard Choices: Moral Dilemmas in Humanitarian Intervention," The End Of Innocence, Jonathan Moore, ed. (Boulder: Rowman and Litdefield, 1998). 8 their initial shock with anger and fear deeply intact, their cries for revenge and pleadings for safety are proliferating. They will never heal from what they have been through, for their emotional wounds will stay raw, and their demands for justice, whether raucous or refined, are filling the ears of the international community. The international community is not ready with a response. B. Justice Required To force the still-living victims to watch war criminals remain comfortably at large in the world is to deny the moral, ethical, political and legal responsibilities all nations share within the greater community.13 Hans Corell, the United Nations Under-Secretary-General for Legal Affairs,14 described the situation: The very reason that certain armed conflicts occur, entailing crimes against international humanitarian law, is, in my view, that the international community has so far been unable to demonstrate that those responsible would be brought to justice — sooner or later. Until the day when the international community can demonstrate that those who 13 For example, the ICC, at UN web site http://www.un.org/icc/index.htm, quotes Olara Otunnu, Special Representative of the United Nations Secretary-General on die Impact of Armed Conflict on Children, as saying: "In the course of the last decade, two million children have been killed in conflict; more than 4.5 million have been disabled or permanently injured; more than 30 million uprooted from their homes; more than ten million have been gravely traumatized at the psychlogical level; more than one million have been made orphans or lost all contact with their parents; not to speak of the young women who are being subjected to sexual abuse." Carol Bellamy, Executive Director, UNICEF, in the same background brief, reflects on the impact that the ICC will have on the victimization of children during conflict, in that: "The establishment of the International Criminal Court will in fact ensure that a clear signal is given that atrocities committed against children will not go unpunished and that those responsible for acts of torture, rape, murder and the disappearance of children will be brought to justice." 14 From his biography as listed by the UN (http://www.un.org/News/ossg/sg/stories/corell_bio.html): "Hans Corell has been Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations since March 1994. In this capacity, Mr. Corell is head of the Office of Legal Affairs in the UN Secretariat." 9 ultimately bear the responsibility for violations of the most fundamental rules for the protection of the human being are brought to justice, history will repeat itself.15 In a similar vein, U.S. Secretary of State Madeline Albright reaffirmed her belief in the need for vigorous prosecution of such people and proffered a parallel warning when she said: "We can only presume to forget what only God and the victims have standing to forgive, or we can heed the most searing lesson of this century, which is that evil — when unopposed — will spawn more evil."16 When grave breaches of humanitarian law have been committed, circumstances make it necessary to affirm justice as the underlying authority for the international community's efforts to re-establish security and peace. "There must be peace for justice to prevail," said Albright's countryman, former U.S. President William Jefferson Clinton, "but there must be justice when peace prevails."17 The justice sought in the circumstances of the former Yugoslavia and of Rwanda includes a diversity of issues.18 First, victims of inhumane aggression need an opportunity to state their injuries publicly to provide them the cathartic process that begins to release the poisons and to validate their original and their continuing suffering.19 Mary 15 Hans Corell, United Nations Under-Secretary-General for Legal Affairs, from a UN website http://www.un.org/icc/index.htm. 16 New York Times, 6 June 1997. 17 White House press release, remarks by President Clinton at the University of Connecticut, Storrs, 15 October 1995. 18 See also the statement of Corell, supra, note 15. 19 Brigadier General Telford Taylor, chief counsel for the prosecution Nuremberg, said on 9 December 1946: 10 Robinson, former United Nations High Commissioner for Human Rights,20 explains the value of the International Criminal Court (ICC) to the quest for justice: This Court is about providing justice for the victims of crimes against humanity and war crimes. There are times when victims' search for justice is frustrated by the inability or unwillingness of a national justice system to take up their case, [and] an International Criminal Court must be a safe and effective recourse for the victims of the most serious violations. Of course, it must also be fair and impartial — the court will fail if it does not ensure due process for the accused.21 The court process allows the victims of atrocities to address their feelings and grievances through a structured process rather than have emotions fester, which re-victimizes the injured with unhealed psychological scars. The empowerment and dignity that can be restored due to the opportunities afforded by a trial contribute to the rehabilitation process and the overcoming of their grief and pain. "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.... 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 men 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." Quoted from G.J. Annas and M. A. Grodin, The Na^i Doctors and the Nuremberg Code: Human Rights in Human Experimentation (Oxford: Oxford University Press, 1992), pp. 67-68. 20 The former Madam Justice Louise Arbour took up her duties as United Nations High Commissioner for Human Rights on 1 July 2004. Ms. Arbour was, until June 2004, a member of the Supreme Court of Canada and before that, the chief prosecutor for the International Criminal Tribunal for the former Yugoslavia and Rwanda. Quoted from press release, 1 July 2004, website of the Office of the United Nations High Commissioner for Human Rights (OHCHR), at http://www.ohchr.org. 21 Mary Robinson, former United Nations High Commissioner for Human Rights, quoted from International Criminal Court (ICC) background brief at UN website http://www.un.org/icc/index.htm. The nature and scale of the crimes that can be considered by the ICC are delineated in the Rome Statute. See Appendix 5. 11 Second, persons accountable for atrocities must be tried for individual responsibility and personal guilt. By exposing in a public forum the actions and crimes of the individual perpetrators, the possibility of an assignation of collective guilt can be avoided. The emphasis on individual accountability and responsibility was central to the Nuremberg and Tokyo war crimes tribunals, as the Allied powers did not wish the burden of collective guilt to be placed against entire nations.22 The former Madam Justice Louise Arbour did consider the matter of imposing a criminal responsibility on leaders as a means to remove the issue of collective guilt or responsibility by a community or country. In War Crimes and the Culture of Peace, she states in part:23 It is argued that the imposition of personal criminal responsibility on leaders will serve to remove the legacy of collective guilt and responsibility. That argument, in my view, is only partly persuasive. First, it is not all that convincing when the persons targeted for prosecution were elected leaders who enjoyed sustained support from the population while their widespread and systematic crimes were unfolding in a blatant and widely reported manner. Of course there are circumstances where repressed or manipulated populations become simply unwilling, and therefore unable, to see even the most obvious of truths. Second, this rationale becomes even more problematic when the criminal activities engineered or tolerated by the leaders required the massive participation of the population - for example, during the genocide in Rwanda. Finally, it is unconvincing when the leaders' crimes advanced 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 leaders' personal criminal responsibility, the holding of an international trial is in itself a major positive step towards peace and reconciliation. Not that the Ms. Arbour, in her 2002 speech, the annual Keith Davey Lecture at the University of Victoria, Victoria, B.C. Louise Arbour, War Crimes and the Culture of Peace (Toronto: University of Toronto Press, 2003), pp. 31-32. 12 trial process itself has an immediate calming effect - quite the opposite. The issuance of indictments, the arrest of indictees and 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 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 Canada, and in many other countries, 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 important, to forgo 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 its outcome, a criminal trial does not suffice to "stay the hand of vengeance." Gary Bass chose that expression as his title, referring to the way U.S. Justice Robert Jackson so powerfully expressed this idea in his opening statement at Nuremberg: "That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgement of the law is one of the most significant tributes that Power has ever paid to Reason." I agree with Ms. Arbour's comments that imposing a criminal responsibility on leaders as a means to remove the issue of collective guilt or responsibility is not in itself a complete answer. Her observation that committing such matters to an international criminal justice mechanism will "stay the hand of vengeance" and thus contribute to the goal of living in peace, is a higher objective. Nevertheless, holding leaders personally accountable for their roles in war crimes and atrocities will avoid the tendency to hold at blame all members of societies in which crimes have been committed. Many Germans were complicit in the Nazi atrocities through their acquiescence or silence. Despite their possible moral complicity, it would be wrong and counterproductive to view all Germans 13 as bearing collective guilt, thereby creating an inescapable stigma of responsibility for atrocities as a people or society. In recent examples of war crimes that occurred in Yugoslavia24 and Rwanda,25 future peace will depend on such understandings. Yugoslavia offers an excellent example of the destructive nationalist forces unleashed when whole peoples are tarred with the broad brushstrokes of ethnic prejudice 26 The "historical wrongs" of more than five hundred years are ascribed to entire nations and not to the individuals or groups within those societies who are in fact blameworthy. "When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age," Alexander Solzhenitsyn wrote. "We are thereby ripping the foundations of justice from beneath new generations."27 This application of collective national guilt for past wrongs, compounded by current atrocities, continues to fuel nationalist fires. 24 See Appendix 1. 25 See Appendix 2. 26 The International Criminal Tribunal Rwanda (see Appendix 4) states its view on the value of the work done to date. At its website (http://www.ictr.org/default.htm), the ICTR states: "Above all, the Rwanda Tribunal, through its work, has made and continues to make a substantial contribution to the replacement of a culture of impunity by a culture of accountability. As noted above, a new climate of opinion regarding the effectiveness of international humanitarian law has emerged as a result of the visible, practical success of the two ad hoc Tribunals. Further evidence of this is the fact that the creation of such Tribunals is now automatically called for in conflict situations as far apart as Sierra Leone, Cambodia and East Timor. Indeed, it has been mooted that those responsible for other conflicts in Africa should be prosecuted before the Arusha Tribunal. A provision to that effect was included in the Lusaka agreement intended to bring an end to the conflict in Democratic Republic of Congo." 27 Alexander Solzhenitsyn, The Gulag Archipelago, Thomas Whitney, trans., (New York: HarperCollins, 1974), p. 178. 14 Sadako Ogata, former United Nations High Commissioner for Refugees, put the situation thus: The potential Pol Pots of this world — yes, the planners and not just the perpetrators — must be deterred by the prospect of criminal justice. And is it fair and realistic to expect the survivors to forgive and to cooperate if there is no justice? In the absence of justice, private revenge may prevail, which will spread fear and undermine the possibility of reconciliation.28 Lastly, the necessity of gathering, organizing and preserving the records required for successful prosecutions assists in creating an immutable historic record that cannot be altered through time and fable. The factual evidence will always stand to maintain the authenticity and accuracy of the conflict.29 Politically, ethnically or religiously motivated historical revisionists should be afforded no opportunity to pervert or destroy the truth of the crimes' existence. The records of history must stand as a warning and a reminder to future generations of the consequences of man's inhumanity to man.30 "Those who cannot remember the past," said George Santayana, "are condemned to repeat it."31 28 Sadako Ogata, former United Nations High Commissioner for Refugees, ICC Background Brief prepared May 1998, UN website http://www.un.org/icc/index.htm. Mrs. Ogata's comment is from her lecture 30 April 1997, United States Holocust Memorial Museum, Washington, D.C., "Preventing Future Genocide and Protecting Refugees," http://www.ushmm.org/conscience/events/ogata/ogata.php. 29 While it could be said that this is analogous to the victors writing the history, I would argue that the transcript of a trial stands as an immutable record of fact, the veracity of which is reliable as a social record. 30 Robert Burns, 1784, from Man was Made to Mourn: A Dirge, http://www.robertburns.org/works/55.shtml: I've seen yon weary winter-sun I Twice forty times return;/And ev'ry time has added proofs,/That man was made to mourn. 31 George Santayana, Life of Reason: also see comment by Corell, supra, note 15. 15 C. Justice Enacted Thousands of pages have been written32 on issues surrounding the prosecution of those charged with the most grievous of crimes: genocide, war crimes, crimes against humanity. It could be argued that the effective prosecution of indicted suspects is a clear issue of collective global responsibility, yet there are those who would question the effort required or the duty to ensure that justice is accomplished. Others would claim that the financial, political or military costs of ensuring that the criminal is brought to trial are simply too high for the consequential benefits achieved.33 Richard Goldstone, former prosecutor for the International Criminal Tribunal Yugoslavia (ICTY) blamed NATO for holding this reluctant position: "There is no moral, legal or political justification for a military authority to grant effective immunity to persons whom the prosecutor, on behalf of the Security Council, has determined should be brought to trial."34 As he argued in another article: [That] IFOR, with its force of 60,000 troops, its sophisticated weaponry and intelligence capacity, is able to effect such arrests must be beyond question. From a political point of view, can IFOR's men in 32 See Chapter 3; see also available documentation on Nuremberg trials, Tokyo War Crimes Tribunal, the Khmer Rouge in Vietnam, Iraqi acts against the Kurds, Indonesian army activities in East Timor, to name but a few; see also a reference list on war crimes writings, Appendix 7, for some of the many writers who have addressed this subject, including Robert H. Jackson, Leslie C. Green and M. Cherif Bassiouni. 33 See "An Interview with Defense Department General Counsel Judith A. Miller,,' 18:5 (1996), National Security Law Report of the American Bar Association, pp. 1-8. 34 Goldstone quoted in Jon Swain, "Serb War Criminals Flaunt Their Freedom," Sunday Times (London), 23 June 1996. 16 uniform legitimately argue that they can avoid certain duties because they are potentially dangerous? On a national level, policemen are not infrequently obliged to arrest people who are armed and dangerous. Yet, it is inconceivable that an attorney general would call off the arrests because of the risks to the lives of the arresting officers.35 Others worry that the indicted felon may become a martyr to his own cause and that after all the effort expended, the potential for a stable peace will be no closer than before. Klaus Naumann, past chair of NATO's military command, stated: "We do not know what the aftermath would be, because many people regard these criminals as heroes worth defending."36 The use of the possibility of hero status as an excuse for inaction is simply not acceptable. It is precisely because of the stature of the criminal that the international community must demonstrate its condemnation of the crimes by the exertion of every effort to effect the perpetrator's arrest and trial. The international community has shown its desire to act with the creation of the ICTY, again with the creation of the International Criminal Tribunal Rwanda (ICTR) and, later, the International Criminal Court (ICC).37 Antonio 35 Commentary by Richard Goldstone, '"Bosnia-Herzegovina: The Responsibility to Act," Inter Press Service, 27 June 1996. 36 As quoted by William Droszdiak, "NATO Rejects Hunting Bosnia Crimes Suspects," International Herald Tribune, 14 June 1997. 37 In his 15 June 1998 address to the inaugural meeting of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (http://www.un.org/icc/index.htm), United Nations Secretary-General Kofi Annan stated with respect to the need to prosecute war crimes: "It is said that all roads lead to Rome. But not all lead there directly. The road that has led us to this Conference in the Eternal City has been a long one. It has led through some of the darkest moments in human history. But it has also been marked by the determined belief of human beings that their true nature is to be noble and generous. When human beings maltreat each other, they call it "inhuman." Most human societies, alas, have practised warfare. But most have also had some kind of warrior code of honour. They have proclaimed, at least in principle, the need to protect the innocent and defenceless, and to punish those who carry violence to excess. Unhappily, that did not prevent acts of genocide in previous 17 centuries, such as the extermination of indigenous peoples, nor did it prevent the barbaric trade in African slaves. Our own century has seen the invention and use of weapons of mass destruction and the use of industrial technology to dispose of million upon million of human lives. Gradually, the world has come to realize that relying on each State or army to punish its own transgressors is not enough. When crimes are committed on such a scale, we know that the State lacks either the power or the will to stop them. Too often, indeed, they are part of a systematic State policy, and the worst criminals may be found at the pinnacle of State power. After the defeat of Nazism and fascism in 1945, the United Nations was set up in an effort to ensure that world war could never happen again. The victorious Powers also set up international tribunals, at Nuremberg and Tokyo, to judge the leaders who had ordered and carried out the worst atrocities. And they decided to prosecute Nazi leaders not only for "war crimes" — waging aggressive war and massacring people in occupied territories — but also for "crimes against humanity," which included the slaughter of their own fellow citizens and others in the tragedy we now know as the Holocaust. Was it enough to make an example of a few arch-criminals in two States that had waged aggressive war, and leave it at that? The General Assembly of the United Nations did not think so. In 1948. it adopted the Convention on the Prevention and Punishment of the Crime of Genocide. And it requested the International Law Commission to study the possibility of establishing a permanent international criminal court. In this area, as in so many, the cold war prevented further progress at that time. If only it had prevented further crimes against humanity as well! Alas, this was far from the case. I need only mention, as the most notorious single example in that period, the killing of more than two million people in Cambodia between 1975 and 1978. As you know, the man who organized that horror died just two months ago, without ever being brought to answer for his crimes before a court. Humanity had to wait until the 1990s for a political climate in which the United Nations could once again consider establishing an international criminal court. And, unhappily, this decade has also brought new crimes to force the issue on the world's attention. Events in the former Yugoslavia have added the dreadful euphemism of "ethnic cleansing" to our vocabulary. Perhaps a quarter of a million people died there between 1991 and 1995 — the great majority of them civilians, guilty only of living on the "wrong" side of a line someone had drawn on a map. And then, in 1994, came the genocide in Rwanda. On my visit there last month, I was able to register at first hand the terrible, irreparable damage that event has done, not only to one small country but to the very idea of an international community. In future, the United Nations and its Member States must summon the will to prevent such a catastrophe from being repeated anywhere in the world. And as part of that effort, we must show clearly that such crimes will not be left unpunished. Events in the former Yugoslavia and in Rwanda overtook the slow processes by which the world was considering the creation of a permanent criminal court. Ad hoc tribunals had to be set up for those two countries, and they are now at work. They have issued indictments and international arrest warrants. Even those indicted but who have not yet been arrested have been turned into international pariahs; though of course they enjoy the presumption of innocence, they are unable to travel freely or to hold political office. A historic milestone was passed six weeks ago when a former prime minister of Rwanda actually pleaded guilty to the charge of genocide. These tribunals are showing, however imperfecdy, that there is such a thing as international criminal justice, and that it can have teeth. But ad hoc tribunals are not enough. People all over the world want to know that humanity can strike back — that wherever and whenever genocide, war crimes or other such violations are committed, there is a court before which the criminal can be held to account; a court that puts an end to a global culture of impunity; a court where "acting under orders" is no defence; a court where all individuals in a government hierarchy or military chain of command, without exception, from rulers to private soldiers, must answer for their actions.... But the overriding interest must be that of the victims, and of the international community as a whole. I trust you will not flinch from creating a court strong and independent enough to carry out its task. It must be an instrument of justice, not expediency. It must be able to protect the weak against the strong.... I hope you will feel, at every moment, that the eyes of the victims of past crimes, and of the potential victims of future ones, are fixed firmly upon us. We have before us an opportunity to take a monumental step in the name of human rights and the rule of law. We have an oppormnity to create an institution that can save lives and serve as a bulwark against evil. We who have witnessed, time and again in this century, 18 Cassese, at one time the president of the International Criminal Tribunal for the former Yugoslavia, described the responsibilities of the tribunal as being "...to do justice, to deter further crimes and to contribute to the restoration and maintenance of peace."38 Tribunals such as the ICTY can, if fully supported and implemented, play an essential role in maintaining world peace and security through the pursuit of justice. D. Justice Achieved? Impunitas semper ad deteriora invitat. Impunity always invites to greater crimes. That dark invitation is perhaps the single greatest reason for the international community to ensure the prosecution of war criminals. Without national and international exertion to apprehend and try those who commit the gravest of atrocities against the innocent and helpless, belief in international justice will suffer a fatal blow, for if criminals believe they can commit such barbarism with impunity, the scope and horror of future actions will only increase. Even for such reprehensible characters, another maxim still holds true: "Though few are punished, the fear of the worst crimes against humanity, have an opportunity to bequeath U> the next century a powerful instrument of justice. So let us rise to this challenge. Let us give succeeding generations this gift of hope. They will not forgive us if we fail." 38 Report to the United Nations Security Council, UN Doc. A/49/342,S/1994/1007(1994). 19 punishment affects all."39 The international community and all states individually must ensure the end of the illegitimate freedom of thugs who have committed, condoned and encouraged heinous crimes against humanity. Although their numbers are not great, they must all be sought and apprehended to influence by way of deterrence any others who may consider the breaching of laws of moral order to further their political or personal ambitions. Lloyd Axworthy, the then Canadian Minister of Foreign Affairs, stated the Canadian position on the founding of the ICC and on the prosecution of war criminals in a June 1998 address to the inaugural meeting of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court:40 In an era where the nature of conflict has changed so profoundly — as evidenced by the tragic events of recent years in Central Africa and in the former Yugoslavia — the need for an International Criminal Court is clear and acute. We live in a world where most of the conflict is civil and most of the victims are civilian. The acts of war have become even more senseless, and too often these acts of atrocity go unpunished. Thus, the most pressing priority of international relations today is no longer the security of states, but of individual citizens. Yet international institutions, practices and codes of humanitarian law were designed in an earlier era, when this was not the case. The time has come for us to build new institutions that respond to new needs. An independent and effective International Criminal Court will help to deter some of the most serious violations of international humanitarian law. It will help give new meaning and global reach to protecting the vulnerable and innocent. By isolating and stigmatizing those who commit war crimes or genocide and removing them from the 39 Translation of the Latin: Utpoena adpaucos, metus ad omnesperveniat. 40 From Lloyd Axworthy address, 15 June 1998, to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, http://www.un.org/icc/index.htm. 20 community, it will help to end cycles of impunity and retribution. Without justice, there is no reconciliation, and without reconciliation, no peace. To achieve this end, we must work together, not simply to establish a Court, but to ensure that it is one worth having. A Court worth having is one with inherent jurisdiction over the core crimes of genocide, crimes against humanity and war crimes. We must not create a regime that would allow states to gain the prestige of ratifying the ICC Statute without ever accepting the Court's jurisdiction over a particular crime. A Court worth having is one with a constructive relationship with the United Nations, in which the independence and impartiality of the Court are preserved. The Security Council has a useful role to play in referring matters to the ICC, as this will increase the effectiveness of the Court. We must not, however, allow the Court to be paralyzed simply because a matter is on the Security Council agenda.... Even one instance of failing to bring offenders to the bar of justice can have devastating results. The failure of the international community in 1918 to ensure prosecution of the Turkish officers for the Armenian massacre, for example, encouraged Adolf Hitler to adopt his "final solution." Bassiouni notes Hitler's dismissal of any potential consequences for aggression or genocide. "Who, after all," Hitler said in a 1939 speech, "is today speaking about the destruction of the Armenians?"41 While vigorous prosecution of criminals may not deter future Hitlers, if it can prevent the death of one person, it will have achieved great success.42 41 Adolf Hitler, 22 August 1939, in his Obersalzberg speech concerning his planned invasion of Poland, from Documents on British Foreign Policy 1919-1939, E. L. Woodward and Rohan Riftiep, eds.; 3rd series (London: HMSO, 1954), 7:258-60; in Internet Modern History Sourcebook, http://www.fordham.edu/halsall/mod/hider-obersalzberg.html. A translated excerpt at http://www.atour.com/~aahgn/news/20040107c.html uses slightiy different terminology. There, following the reaffirmation that "the goal to be obtained in the war is not that of reaching certain lines but of physically demolishing the opponent," Hider outlined for his staff the following rationale for the invasion: "to send to death mercilessly and without compassion, men, women and children of Polish derivation and language. Only thus shall we gain the living space [kbensraum] which we need. Who, after all, speaks today of the annihilation of the Armenians?" 42 The Jewish legal tractate, Talmud Bavli, Echad Dinei Mamonos, on Sanhedrin 37a, in discussing the testimony of witnesses at a capital trial and thus the need for truthfulness, teaches the value of life to the Jewish 21 For the brutish element of society that will not heed the lessons from a prosecution, we must stand ready to bring the full weight of the international legal, political and military might to bear on them in order to denounce and punish their actions. There is a moral imperative on the international community to punish severely those who choose to act outside the norms of human decency. Punishment and retribution, recognized values within sentencing regimes, play an important role in establishing and maintaining the international community's intolerance of such criminal actions. Even if the prosecution and incarceration of a particular suspect will have no influence on others, it will have removed a locus of evil from society's midst and will have prevented them from continuing their actions or from enjoying the fruits of their crimes. The world community must be seen to condemn all acts that threaten international security and world peace. Without a doubt, mass torture, rapes, murders and forced deportations are central issues in the fight to preserve global order and peace.43 The very barbarity and moral abasement of the acts committed by their perpetrators in and of itself demands that the international community reaffirm its revulsion for the crimes and its determination to prevent nation, states: "...whoever destroys a single life from Israel is considered by scripture as if he had destroyed an entire world and whoever preserves a life is considered by scripture to have preserved an entire world." Talmud Bavli, Tractate Sanhedrin, vol. 1, Chapter 4: 37a (New York: Mesorah Publishing, 1993). 43 The legal responsibility for the prosecution of such criminals will, as reflected in the Rome Statute (see Appendix 5), fall to the national government within whose jurisdiction the perpetrator is found. The international community has recognized through the creation of special tribunals such as ICTR and ICTY that in special cases, the international community must assume the responsibility. With the inception of the ICC, the international community is able to act where a domestic court is unable or unwilling to bring forth a prosecution. 22 such conduct in future.44 While the international community's record of preventing the tragic situations giving rise to these crimes is poor, the successful 44 Ms. Arbour discussed the realities of the expectations for the ICC in her 27 June 2002 speech at Madrid, Spain, to the Prix de la Fondation Justice dans le Monde de L'Union Internationale des Magistrats, http://www.justiceintheworld.org/nll/ip_pfjm_la_e.htm. She said, in part: "The ICC does not promise to end all wars, to diffuse all conflicts, to deter all atrocities, any more than domestic criminal law promises to eradicate all crimes. In fact, the need to activate the reach of the criminal sanction is a manifestation of the failure, if not in some cases the bankruptcy, of other social and political institutions in education, wealth distribution, family support or the mental health system for example. But when criminal law is invoked, after the fact, it ensures that the harm is acknowledged, and redressed, through a process that itself repudiates violence and self-vindication. That over 60 States have embraced recourse to the personal criminal accountability of those who control the means of destruction is thus a repudiation of violence and self-vindication, and a major advance for the rule of law. Pacifists, and in particular young people, are often skeptical towards the so-called Laws of War, which they perceive as an absurdity, a surreal if not a cynical attempt to introduce a civilized element in an enterprise which speaks of the ultimate failure of all forms of civilization. Yet the regulation of the use of force, including the use of physical, often lethal, force, is very much part of the regulation of human interaction. Hence, for instance, the law of self-defence. In that spirit, the introduction of personal criminal responsibility of commanders, both civil and military, for orchestrating or tolerating the Commission of Crimes against Humanity is possibly the most imaginative and the most promising novel response if not to war itself, at least to its controllable excesses. Indeed, it will seem, in retrospect, incomprehensible that international law has been so slow to enhance human security and to utilize the tools for controlling social order provided by a criminal justice system. The fact that it has now been launched, successfully in my view, and that it is irreversible, confirms my belief that justice is slowly moving towards its true calling of universality of access. In that spirit, we should not underestimate the contribution that justice makes to safety. And most importantiy, we should never lose sight of what Herbert Packer identified as the central purpose of criminal law. As he so well put it in his most influential 1968 book, The Limits of the Criminal Sanction, 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 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 is free. We live in an era plagued by its own peculiar pathologies. The recent wave of terrorism reflects profound pathologies of the need and of the desire to belong, and yet the basic human need to nurture identity through affiliation is fully compatible with the ideals of equality and liberty that are more than ever accessible to us. The forces of religious, ethnic and national affiliation, which at other times in history have been channelled positively to promote inclusion, cohesion and progress, are often today the expression of isolation, exclusion and destruction. This presents for the Rule of Law a double challenge. On the one hand, it is critical that all the legitimate grievances of all human rights holders be heard and addressed in a global project of social justice. Equally important, all power must be exercised under legal constraints and all abuses of power must be exposed, denounced and punished. The creation of the International Criminal Court as well as the expansion of the concept of universal jurisdiction in many national courts reflect a growing commitment to end a culture of impunity. It is the prevalence of that culture that has given rise to the feelings of victimisation, injustice and neglect on the part of those who have then claimed an entitlement to setde their grievances outside the law. Never has so much been expected of the legal profession, particularly in the classical role of the lawyer as standing between the State, or other manifestations of power, and the individual accused or victim. It is the law that calls for the articulation of the difficult balance between rights and responsibility, between the legitimate aspirations of victims, and of society at large, and the necessary protections for offenders, alleged and found, in the broad context of criminal justice. That balance does not rest on a scientific formula, and equilibrium is not a matter of scientific discovery 23 establishment of the ICTY, the ICTR and the ICC speaks well of that community's intent to prosecute the guilty to the fullest extent possible.45 Yet, for all that, the ultimate measure of success will depend on the effective prosecution and punishment of all guilty parties. but one of political choice. Part of that political choice is informed by evolving social science research, interest group advocacy, legal developments and the general mood of the times. It undergoes periods of daring progress and periods of inexplicable regression. And while these political mood-swings occur, it is often the most vulnerable groups of victims and offenders alike that are put at risk. Yet today more than ever we can affirm with confidence that the law can deliver on its promise of a more just and therefore a safer world. It would be a sad indictment of our professional choices if we were to concede the impotence of the legal process to meet the expectations of justice. In fact, I believe that our concern should be just the opposite. The relevance and indeed the potency of the law has been so enhanced in the last decade, particularly on • the international scene, that the legal system may now be rightly concerned with its own ability to meet the many expectations it has raised. This is particularly true in the fields of Human Rights and International Humanitarian Law. This brings me to conclude that we live in an era that may one day be described as the golden age of legalism and that we are called to become, collectively, magistrates and jurists from all over the world, the architects of a more just society for all human rights holders." 45 On the issue of the international communities will to prosecute war crimes in the future, Baltasar Garzon Real, Spanish Magistrate, Audiencia Nacional de Espana, delivered a message on the first anniversary of the International Criminal Court, 1 July 2003 . The following excerpts are from his speech, translated from Spanish, at http://www.icc-cpi.int/library/newspoint/mediaalert/baltazar_garzon_en.pdf: "The ICC represents the first peacetime attempt to provide a permanent response to the most degenerative phenomena in times of war or peace, embodied in the most heinous criminal figures inflicted upon the international community.... However, the ICC will be unable to stop the mass violations of human rights, its investigations will not end the excesses committed by States at the hands of their leaders, and not all cases will be subjected to its jurisdiction.... The Preamble to this Statute reads: ".. .Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, ... determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, ... [and] Emphasizing that the International Criminal Court... shall be complementary to national criminal jurisdictions," this International Criminal Court is established to prosecute the crimes of genocide, crimes against humanity and war crimes or those described as crimes of aggression. At the Opening Session of the Nuremberg Trial on [20 November 1945], Robert Jackson, the U.S. Chief Prosecutor to the International Military Tribunal, on reading out the arrest warrant on behalf of the team of prosecutors appointed by the four victorious powers, uttered these memorable words: "Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well." The lesson from this declaration is that an International Criminal Justice, in order to be just that, must be a justice for all and equal for all.... For those of us who believe in International Criminal Justice, the creation and operation of the ICC is a triumph of Justice and of Peace. It is up to us to demand that this great initiative by humanity does not become a failed reality. It is a time of hope, and as the Spanish poet Antonio Machado said: "Today is always still."" 24 CHAPTER 2 Of Blood, Toil, Tears and Sweat Methodology This thesis grew out of the horrific war crimes, crimes against humanity, and genocide committed in Rwanda and the former Yugoslavia. In particular, this work considers the challenges faced by international tribunals in gaining physical jurisdiction over those persons indicted for allegedly committing such merciless violence. During the last decade of the Twentieth Century, the world watched as hundreds of thousands of innocent men, women, and children died at the hands of their neighbours and countrymen. Not since the times of the Jewish Holocaust had inhumanity of this magnitude been thrust to the forefront of the world attention. As the international community struggled to come to grips with its own failings - or at least its shortcomings - in preventing the tragedies, steps were being taken at the United Nations to bring to justice the principle actors in these atrocities. To that end, the United Nations established two international criminal tribunals, one for each of the aforementioned conflicts. Additionally, in part as a result of the situation in Rwanda and the former Yugoslavia, the international community was moved to bring into being the ICC for the prosecution of those accused of acts of similar violence in future conflicts. As the ICTR and ICTY began to issue international indictments for the arrest of accused persons, an impediment in the prosecution process became apparent: the tribunals' lacked a mechanism for ensuring that the indictments were enforced and that the accused would be brought before the jurisdiction of the courts. This inadequacy lead to the flagrant disregard of issued indictments by some of the accused, their supporters and sheltering political entities. Similarly, as the governing statute for the ICC was developed and brought into place, the lack of an "enforcement arm" for that Court raised the prospect for similar problems in the future. In light of the noted inadequacy of the tribunals' jurisdiction or power, this thesis considers the need for some mechanism to be available to effect the interdiction and arrest of those persons indicted by the ICTY, ICTR and ICC or any future ad hoc criminal tribunal. To that end, I propose in this thesis, that the use of military force to secure the detention and delivery of an accused before the jurisdiction of the issuing court can be justified and should be utilized when other options have failed to effect with celerity the accused's arrest. This thesis, in 7 chapters, addresses the need for justice, the history of the laws of war, war crimes and their prosecution, the need for an interdiction instrument, the legal basis for acting with force to arrest indictees, the use of military force to effect such arrests, and some of the various political and practical issues that arise in such use of force. For simplicity's sake, I will, throughout the remainder of this chapter, use the term war crimes to include 26 crimes against humanity and genocide. This thesis does crossover many disciplinary areas from political science, to history, to military science and of course, law. I can offer no apology for having so included these various subject areas, for, I suggest, any attempt to consider the problem presented and the solutions proffered must, by the very nature of the subject, include aspects of the above noted disciplines. The thesis begins with the voices of the victims themselves, for it is their poignant words and moving stories that must compel the world to ensure the expeditious arrest and effective prosecution of the perpetrators. The challenge in giving a living voice to the victims in this chapter was not, sadly, in searching for the appropriate material, rather, it was limiting the tragic and seemingly inexhaustible number of equally compelling and heartbreaking narratives that could physically and emotionally overwhelm any researcher. I have culled the quotes and stories used in Chapter one from various media sources, books and court transcripts. To this end I read all journal materials available on and by the victims. I researched and reviewed newspaper articles dating from the beginning of the Yugoslavian and Rwandan crises though to 2004 in which the words, thoughts and accounts of the victims were given voice. Moreover I read all available indictments, transcripts and decisions released by the ICTY and ICTR through to August 2004. In the later three sections of the chapter I substantiate the requirement for justice, the enactment of such justice, and the efficacy of the measures taken to 27 ensure that justice is achieved for the myriads of victims and their families. To establish these lines of reasoning, I looked to the written and spoken reflections of those academics, politicians, jurists, judges and senior commanders, who have experienced firsthand the challenges and frustrations of attempting to prevent atrocities, successfully prosecuting indictees or developing jurisprudence for future tribunals. The views provided, I suggest, offer compelling confirmation that expedient, effective and fair legal processes are required for all indicted war criminals. It only stands to reason that the legal process can only be effective and justice can only be achieved if the accused can be brought before the tribunal with alacrity. I have also included as appendixes to this chapter, the brief histories of the former Yugoslavia and Rwanda as found in decisions rendered by the respective tribunals. The third chapter of this thesis examines the history of the laws of war and war crimes. The chapter begins with a review of the codification or regulation by early ethno-cultural entities of the practices of, and limitations on, the prosecution of war and the subsequent treatment of soldiers, civilians and property. It continues with the examination of the laws of war and war crimes under Christian rule and includes a brief description of the proscriptions imposed on the conduct of battle, the conduct of soldiers and the earliest trials of those founding violating accepted standards of the day. The third chapter then reviews the early development of "modern" international standards for the waging of conflict and the treatment of prisoners 28 and non-combatants. This section carries on with a concise assessment of the criminal actions that took place during the First and Second World Wars, including the subsequent trials of accused war criminals. In researching these portions of the third chapter, I developed a framework for the time lines and landmark events I wished to cover - with admittedly arbitrary groupings of early cultures - from various academic works on the conduct of war. This was also true of my research on the development of treaty and customary international law on the conduct of war and hostilities, and the prosecution of those accused of having violated such law from the end of the Nineteenth Century through to the close of the Twentieth Century. While relying on "secondary" and in some cases "tertiary" research material to map-out my study, where possible, I turned to the original source documents - including the original "codes" and primary religious texts - that constitute the foundation for the various cultural and religious perspectives discussed in the chapter. In almost all cases - except for some German, Hebrew, French and limited Latin source materials - where the original works were in a language other than English, I was compelled to rely on translations. In all such cases I attempted to use the most accurate translation available within the market place today, confirming with Islamic, Talmudic and academic scholars when necessary, to obtain a translation that best reflects the original essence, meaning and nuance of the language and faith in question. 29 Chapter three closes with the development of the ICTY, ICTR and ICC. The United Nations resolutions concerning the ICTY and ICTR served, in addition to the founding statutes of the three tribunals, as the main sources of information used in this section. I elected to include a brief overview of the ICTY's and ICTR's statutes in the appendixes to this thesis as well as a review of the status of the various cases before the tribunals. Further, I included as an appendix, the Rome Statute of the ICC and a list of signatory countries including the dates of their ratification of or accession to the Rome Statute. Chapter four opens with a continued analysis of the ICTY, ICTR and ICC however, giving particular consideration to the ability or inability of these tribunals to gain jurisdiction over indictees. To this end, I have again relied on documentation from the United Nations as well as the statutes for the ICTY, ICTR and ICC. Additionally, I have interviewed several individuals who have dealt firsthand with the issues of war crimes and the military justice system. Further, I reviewed several major newspapers for reports or articles that detailed the difficulties encountered by the tribunals in gaining jurisdiction over some of the most wanted indictees. To assist in understanding how some indictees have been brought into the jurisdiction of the tribunals, I included as an appendix a list of indictees and the manner in which they were brought before the ICTY. The subsequent portion of Chapter four examines the need for interdiction by force when the voluntary surrender of an accused cannot be achieved in a timely manner. Highlighting the issue, this section discusses three of the most 30 notorious of ICTY indictees, Slobodan Milosevic, Radovan Karadzic, and Radko Mladic. Again, I have relied on the interviews I conducted with various jurists and legal officers as well as the tribunal indictments and court documents. I have also drawn on a number of books covering the NATO's involvement in Kosovo and the surrender of Slobodan Milosevic to the ICTY by Serbia. The third section of the fourth chapter addresses the legal justifications for the use of force to arrest indicted persons. First and foremost I considered the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva Convention Relative to the Treatment of Prisoners of War, and Geneva Convention Relative to the Protection of Civilian Persons in Time of War as well as related commentaries by various authors. I took the relevant portions of the Conventions into consideration and analysed them in light of the ICTY and ICTR statutes and the Dayton Peace accord in order to identify national responsibilities for the surrender and capture of persons wanted for war crimes. Further in chapter four, although there is not an expansive number of cases dealing with extraterritorial detention of indictees, the available case law from the United States, United Kingdom, South Africa, Israel and the ICTY is reviewed and limited conclusions are offered. In doing so, I also sought the written views of various international jurists and policy specialists on the issue of international law and the use of military force in manner I advocate. 31. Chapter four ends with a subdivided section on the political considerations and responses to the use of force for the capture of wanted indictees. Newspaper and journal reports reflecting various political positions, particularly with respect to the use of NATO military forces to arrest indictees wanted by the ICTY, were culled for insights into the political mindset. Additionally, I relied on various works, academic and non-academic, to look at the political responses and military consequences of the few publicly known attempts at forcible interdiction. This final portion of the chapter also describes and considers the nature of the military units that are capable of performing such missions. It must be pointed out here that the very nature of national military capabilities is a close guarded secret beyond, for the most part, the most generic of information. As a result, there is a great deal of "pop-culture" material on special force units. I have not drawn on any information that was outside of the public realm nor have I sought to obtain information beyond that found through university libraries. I attempted to avoid that material that is sensationalised or of questionable veracity, however, some of the sources I have drawn on do come out of the non-academic world. In each case, I have attempted to first cross-reference the essential information on the units discussed in the more "popular" material before relying on it and I have also sought to independently verify that information that was essential to the thesis. 32 Chapter five involves a review of various options open in the employment of military or paramilitary force for effecting detentions. I have relied on the published works of historians, academics, my interviews with military persons, as well as the works of some mainstream writers to discuss the pros and cons of employing various mission capable forces in interdiction operations. I have also sought through the works and words of these individuals to detail the range of issues that must be considered from a military perspective in planning any operations including, and perhaps especially, the need for and advisability of using multi-national forces. Chapter six briefly addresses just some of the problems that can arise in military operations in general, but interdiction operations in particular. My previous observation on the limited availability of non-classified information applies on these issues as well. I have utilised the same types of sources as noted for chapter 5 and I elected to limit this chapter to a simple explanation of the difficulties and dangers faced when using military forces in the interdiction role. 33 CHAPTER 3 The Bloody Trail: A Short History of Conduct in War and Social Responses A. War Crimes: Historical Antecedents Since the beginning of civilized society, conflict and war have been an inseparable part of the development and progress of virtually every society. Along with war, however, have come brutality, cruelty and suffering. Therefore, almost from the time of the first examples of organized warfare, it has been recognized that some degree of constraint should be observed in the manner of conducting armed conflict.46 The ancient Sumerians, Babylonians, Persians and Hittites all had codes that imposed constraints on the practice of war.47 It should be remembered that, while many ancient civilizations had certain forms of laws that constituted codes of conduct for the practice of warfare, they were generally founded on a religious morality and do not bear great similarity to the modern laws of war 48 46 Leslie C. Green, The Contemporary Caw of Armed Conflict (Manchester: Manchester University Press, 2000). 47 Christopher Greenwood, "Historical Development and Legal Basis," in The Handbook of Humanitarian Caw in Armed Conflict, ed. Dieter Fleck (Oxford: Oxford University Press, 1995), p. 12. Greenwood notes that some ancient cultures imposed controls, albeit limited in scope, over the conduct of war at a time when conflict was often without any delimitation. As examples, he notes that the Sumerians afforded immunity to enemy negotiators, that the Hittites required respect for inhabitants of captured cities and that the Babylonians' Code of Hammurabi required protection be afforded to the weak and for prisoners to be ransomed and released. 48 Ibid., p. 12-13; also see Gerald I. A. Draper, The Implementation of the Modern Caw of Armed Conflict (Jerusalem: Magnes Press/Hebrew University, 1973); Ian Brownlie, International'Law and the Use of Force by States (Oxford: Clarendon Press, 1963), chapt. 1; and Quincy Wright, A Study of War, 2nd ed. (Chicago: University of Chicago Press, 1965), pp. 158-73. 34 Hugo Grotius,49 at the beginning of his 1625 seminal work, De Jure Belli ac Pads,50 suggests that a "law of war" can not truly exist absent an international law regulating the values of individual states.51 If this is indeed true, historic civilizations52 can therefore never be said to have possessed a law of war in the sense stated by Grotius. Nevertheless, these societies did create bodies of religiously or philosophically based laws that governed their respective practice of war.53 Drawn from religion, philosophy and cultural ethics, these civilizations 49 On the Law of War and Peace, 1625, one of the first great contributions to modern international law and perhaps the first definitive text on international law, has become the basis of the enduring fame of Hugo Grotius, the Latin rendition of his Dutch name, Huigh de Groot. The child prodigy born 10 April 1583 became a prolific poet, playwright, translator and legal scholar, well-grounded as humanist philosopher, who was able to synthesize and fluently present an exceptional range of writers' ideas from earlier centuries, notably, in the field of international law, scholars such as Gentili. Entry "Hugo Grotius," Encyclopaedia Britannica, 15th ed., Vol. 5, p. 514; entry "Hugo Grotius," Columbia Encyclopedia, 6th ed., http://www.bardeby.com/65/gr/Grotius.html; see also H. Vreeland, Hugo Grotius, the Father of the Modern Science of International Law (New York: Oxford University Press, 1917); E. Dumbauld, The Life and Legal Writings of Hugo Grotius (Norman: University of Oklahoma Press, 1969). 50 Hugonis Grotii, Dejure belli ac pacts libri tres, in quibusjus naturae & gentium, itemjuris publici praecipua explicantur, trans., 1.1. Carnegie Institution (Washington, D.C.: [n.p.], 1933), p. 11. 51 Ibid., with the comment: "This work arose as a result of the excesses of the Thirty Years' War and Grotius' opposition to tyranny. In his magnum opus, he did not condemn war as an instrument of national policy, however. He maintained that it was criminal for countries and leaders to pursue war except in specific circumstances. For the greater extent of De jure belli ac pacts, Grotius argues means by which the conditions of warfare can be made more humane through the combatants affording respect for private persons and their property." The entry "Grotius on the Law of War and Peace," International Law Pioneers (online at http://www.san.beck.org/GPJ13TnternationalLaw.html), includes this comment on the book's context and content: "Although he believed that there could be a 'just war' (unlike Erasmus and other pacifists), Grotius made a tremendous contribution toward international law and to more just and moral conduct during wars. Living during an age of cruel and lawless religious and national warfare, The Law of War and Peace delineated codes of justice for protecting innocent non-combatants, discerning rights of persons and property and arranging methods for truces, treaties and humane treatment of hostages and prisoners. In the Prolegomena, Grotius suggested that there is a common law among nations that is valid for war. Then he asserted the need for these principles." 52 Within this "historic civilizations," I am including Islam and Judaism, two current and vibrant faiths that maintain today and continue to develop religiously based laws on the conduct in war. Even though the contemporary concept of the "law of war" would fit Grotius' description above, many in these two major faiths presendy found their moral conduct on their respective religious teachings. 53 For some societies and faiths, as noted above, the laws of these historic civilizations continue to govern their 35 defined the circumstances under which war could be engaged and delimited the acceptable conduct to be practiced in the event of conflict. I will review below the laws and social attitudes to the conduct of hostilities by several historic civilizations.54 (i) China In China, Sun Tzu, the fourth century BCE55 military commentator, teacher and warrior, maintained that, in war, one should attack the enemy armies and that ".. .the lowest [realization of warfare] is to attack their fortified cities. This tactic of attacking fortified cities is adopted only when unavoidable."56 conduct through to the present day. 54 I have grouped the non-Judeo-based faiths and cultures first: China, India (Hinduism), Greece and Rome. This is followed by the three founding faiths of western society: Judaism, Islam and Christianity. The division is, I admit, arbitrary, and there can be no denying the influence that Greek and Roman philosophy and culture had on Judaism and Christianity. There is, however, a logical progression from the writings of the Hebrew canon to the development of Christian theology and, ultimately, to the modern setting we face today. Also see, D. Brownstone and Irene Franck. Timelines of War: A Chronology of Warfare from 100,000 B.C. to the Present. (Boston: Little, Brown, 1994). 55 Rather than using Christian-based nominations here, I am using the culturally neutral notions of BCE, before the common era, and CE, common era. 56 Sun Tzu, "Planning Offensives, " in The Art of War, trans, by Ralph D. Sawyer (Oxford: Westview Press, 1994), p. 177; for an overview of the Chinese cultural position on the conduct of war, also see Frederich Tse-Shyang Chen, "The Confucian View of World Order," in The Influence of Religion on the Development of International Law, ed. Mark W. Janis, (Dordrecht: Nijhoff, 1991); also see Green, The Contemporary Law of Armed Conflict, pp. 15 and 21. Sun Tzu's statement is similar to the current teaching of the International Red Cross and to the approach now adopted by most countries that warriors make war on warriors, not civilians. 36 (ii) India The early Hindu culture, noted as being among the most peaceful of early civilizations, had within its ancient sacred writings introduced a measure of humanitarianism into armed conflict.57 The Mahabharata,58 one of the earliest Hindu sacred texts, and the Code of Manu,59 written around the same time as the Mahabharata, demanded of the Hindu military leader to avoid superfluous injury to a foe, perfidy in attack and desecration of the enemy dead.60 Further, the Mahabharata bars all Hindu soldiers from killing woman, children, the elderly and anyone suffering from physical or mental incapacity.61 It also prohibited the killing of those enemies who were attempting to surrender or were hors de combat and the destruction of enemy property or the execution of prisoners of war.62 The Code of Manu prohibited as "wicked" the use of concealed weapons or of 57 Quincy Wright, A Study of War, pp. 158-59. 58 The exact dating of the Hindu epic, the Sanskrit poem the Mahabharata, is difficult in that different authors suggest dates ranging from as early as 400 BCE to as late as CE 200. 59 Text, second century BCE; see George Buhler, The Laws of Manu, (Sacred Books of the East, Volume 25), 230, Tit. VII, 90 re-print of 1886 edition (Delhi: Motilal Banarsidass, 1964); according to Greenwood, this text was written, ".. .after the turn to a new era," approximately 100 BCE, Greenwood, "Historical Development and Legal Basis," p. 13; also see Green, The Contemporary Caw of Armed Conflict, pp. 21, 286, 287. 60 W.S. Armour, "Customs and Warfare in Ancient India," in Transactions of the Grotius Society vol 8: Problems of Peace and War:papers read before the society in theyear 1922, (Oxford: Oxford University Press, 1922), pp. 71-88 71,74, 77 and 81, in: http://www.jstor.org/joumals/14791234.html: also see Green, The Contemporary Law of Armed Conflict, pp. 21, 286, 287; S.V. Viswanatha, International Law in Ancient India (Bombay: Longmans Green, 1925); H. Chatterjee, International Law and Inter-State Relations in Ancient India (Calcutta, K.L. Mukhopadhyay, 1958); Ved P. Nanda, "International Law in Ancient Hindu India, in "The Influence of Religion on the Development of International Law" ed. Mark W. Janis, (Dordrecht: Nijhoff, 1991); and Nawaz, The Law of Nations in Ancient India, 6 Indian BIA 172 (1957). 61 Armour, "Customs and Warfare in Ancient India," p. 76; also see Green, The Contemporary Law of Armed Conflict, pp. 21, 286, 287. 62 Greenwood, "Historical Development and Legal Basis," p. 13. 37 weapons that were intended to cause superfluous injury by their design.63 Similar to the concept articulated by the Chinese warrior Sun Tzu, ancient Indian law also held that soldiers should fight only soldiers. Hindu law extended this concept to the point of conducting war on a basis of equality and proportionality between the contestants: "a car-warrior should fight a car-warrior. One on horse should fight one on horse. Elephant riders must fight with elephant riders, as one on foot fights a foot soldier." 64 (iii) Classical Civilization The position of Classical civilization on the conduct of war was articulated by the great writers Plato, Aristotle and Cicero, all of whom shaped Western views on warfare.65 The Greeks and Romans adhered to the observance of humanitarian principles, and these principles, however limited, have greatly contributed to the development of fundamental rules in contemporary laws of armed conflict.66 63 George Buhler, The Laws of Mann: also see George Buhler, The LawsofManu, with extracts of seven commentaries by G. Buhler (Oxford: Clarendon Press, 1886). The weapons in question are described as barbed, poisoned or as having had their points blazed with fire. 64 Armour, "Customs and Warfare in Ancient India," pp. 7, 74; Green, The Contemporary Law of Armed Conflict, in which Green notes at p. 21 that ".. .in more recent times, it has been suggested that if a sophisticated force is engaged with one not so advanced, the former should only use weapons available to the latter." 65 W. B. Ballis, The Legal Position of War. Changes in its Practice and Theory from Plato to Vattel (New York, Garland Publishing, 1973[©1937]). 66 See Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome (London: Macmillan, 1911), reprinted 1979 (New York: Arno Press, 1979), vol. 2, pp. 166-384; also see Green, The Contemporary Law of Armed Conflict, pp. 21, 22, 286. 38 The ancient Greeks addressed many of the issues that confront modern warfare, including prohibiting the use of poisoned weapons and holding that compassion was to be shown to captives with prisoners being ransomed or exchanged.67 As with the Hindu teachings, respect for the bodies of the enemy and burial of dead were observed.68 During the war with the Persian Empire, Alexander the Great made the regard for the life and dignity of victims in that war a central tenet of the conflict.69 In the conduct of attacking a city, it was forbidden to interrupt an enemy's water supply or poison it.70 The Greeks condemned those who committed breaches of the code of conduct of war, believing that such acts betrayed the values of civilized culture and the will of the gods.71 Polybius, a chronicler of many Greek campaigns, was greatly concerned with the responsibility borne by those conducting the hostilities, and he notes that Greek society was not above putting on trial those believed responsible for crimes.72 67 Y. Garlan, Ancient Culture and Society: War in the Ancient World: A Social History (London: Chatto and Windus, 1975), pp. 54-56, 60-64, 68-77. 68 Ibid., pp. 60-64. 69 Greenwood, "Historical Development and Legal Basis," p. 13. 70 Phillipson, The International Law and Custom ojAncient Greece and Rome, vol. 2, pp. 21-23; Greenwood, "Historical Development and Legal Basis," p. 13; Green, The Contemporary Law of Armed Conflict, pp. 21, 22, 286; and Ballis, The Legal Position of War. 71 Phillipson, International Law and Custom of Ancient Greece and Rome, vol. 2, pp. 21-23; Green, The Contemporary Law of Armed Conflict, pp. 21, 22, 286. 72 Brownlie, International Law and the Use of Force by States, p. 4; also see T.A. Walker, History of the Law of Nations (Cambridge: University Press, 1899), p. 41, for a discussion of Greek practices during siege warfare. 39 The Romans were among the first civilizations to consider outside the religious context the idea of a just war, an issue that would become central to the development of modern laws of armed conflict.73 Adopting many of the Greek concepts and philosophies, the Romans' practices of war "...varied according as their wars were commenced to exact vengeance for gross violations of international law or for deliberate acts of treachery."74 Further, Phillipson notes that the Romans governed the manner in which they conducted war according to the nature of their enemy — whether civilized foe or uncivilized barbarians marauders.75 In fact, both the Greeks and Romans, in the manner of waging war, made a clear distinction between those enemies they considered their cultural equals and those considered barbarians, 76 though the moral understanding of the 73 Brownlie, International Law and the Use of Force by States, p. 4; also see Phillipson, International Law and Custom of Ancient Greece and Rome, p. 180; also see Garlan, Ancient Culture and Society, pp. 27-41; Green, The Contemporary Law of Armed Conflict, pp. 21, 22, 286. 74 Phillipson, International Law and Custom of Ancient Greece and Rome, pp. 110-11; Green, The Contemporary Law of Armed Conflict in which Green states at p. 22: "During the United States operations against Panama - Operation 'Just Cause' - 1989, the U.S. put a price on the head of Noriega, then head of the Panamanian government and forces. Similarly, in Somalia in 1993 the UN put a price on the head of General Aidid, one of the faction leaders. It was disclosed in 1998 that during WW II Churchill had instructed plans to be prepared for the assassination of Hider, but these were never put into operation. However, it should be noted that during the third Gulf War — the 2003 conflict conducted by the United States and its coalition against Iraq - that the United States Government made it clear that one of its stated intents was the capture or death of Saddam Hussein and may have, covertiy, put a price on Hussein and senior Iraqi leaders' heads." 75 Phillipson, The International Law and Custom of Ancient Greece and Rome, pp. 110-11; Green, The Contemporary Law of Armed Conflict, pp. 21, 22. 76 Greenwood, "Historical Development and Legal Basis," p. 13; Phillipson, International Law and Custom of Ancient Greece and Rome, pp. 110-11. It is dangerous to compare the standards of conduct and laws of today to civilizations from former millenniums. Nevertheless, it is worth noting that the Roman practice of applying different standards to the practice of war according to the nature or classification of the enemy, while perhaps appealing in this post-11 September 2001 world, would be condemned today as a violation of the concept of "non-discrimination" found in the modern Laws of Armed Conflict. The concept of "non-discrimination" 40 Greeks did not prevent the sacking, pillaging and destruction of enemy cities.77 The Roman view, however, was clear on violations of acceptable behaviour in war, with restrictions against barbarism, acts of treachery or criminal behaviour toward the enemy.78 (iv) Tudaism Some of the earliest recorded and structured rules on the conduct of war are found in the many precepts and restrictions of the Torah79 that impose limitations upon what may or may not be done during war.80 God, in telling the Jewish nation He will help them overcome their enemies, set forth the basis of treatment and care for conquered land when He said, "I will not drive them out from before thee in one year, lest the land become desolate."81 The Israelites were binds both sides of a conflict to apply the laws of war regardless of which party is branded the aggressor, additionally; it also requires the laws be applied without distinction to race, colour and religion. 77 Xenophon, "A Plundering Expedition," from John Keegan, ed., The Book of War 25 Centuries of Great War Writing (New York: Viking Books, 1999), pp. 20-25; also see Walker, History of the Caw of Nations, pp. 48, 60, for a description of Roman practices in siege warfare. 78 Phillipson, The International Caw and Custom of Ancient Greece and Rome, pp. 221, 231-32; also see Keegan, The Book of War, pp. x-xi. The Roman attitude to stubborn and resistant uprisings to their control is well documented by Josephus, particularly in his recalling of the siege of Jerusalem, Keegan, 'The Book of War, pp. 30-41; also see Walker, History of the Caw of Nations, p. 56; Green, The Contemporary Caw of Armed Conflict, pp. 21, 22 and 286. 79 The Hebrew Bible comprising the Five Books of Moses, also referred to as the Pentatuch, is held by observant Jews to have been written by Moses, at the direction and inspiration of the Almighty, in the thirteenth century BCE. 80 Green, The Contemporary Caw of Armed Conflict, pp. 20, 22, 287; see commentary of Rashi, 7 C.E.Jewish Scholar on Devorim 20:19-20; also see Roberts, "Judaic sources and views on the laws of war" (1988) 37 Naval Law Rev. 221. 81 Shemos (Exodus), 23:29, quoted from Tora, trans, and ed. Harold Fisch (Jerusalem: Koren Publishers, 1982). 41 further commanded in Devorim that, with respect to attacking the pagan tribes of Canaan: When thou shalt besiege a city a long time, in making war against it to take it, thou shalt not destroy its trees by forcing an axe against them; for thou mayst eat of them, and thou shalt not cut them down; for is the tree of the field a man, that it should be besieged by thee? Only the trees which thou knowst that they be not trees for food, thou shalt destroy and cut them down; and thou shalt build bulwarks against the city that makes war with thee, until it be subdued.82 Maimonides,83 commenting upon this law, clearly concluded that the law regarding the destruction of fruit trees for the mere purpose of afflicting the civilian population forbade the practice.84 Moreover, the Jews were further commanded in Devorim: When thou comest near to a city to fight against it, then proclaim peace to it. And it shall be, if it make thee answer of peace, and open to thee, then it shall be, that all the people to be found in it shall be tributaries to thee, and they shall serve thee. And if it will make no peace with thee, but will make war against thee, then thou shalt besiege it; and when the Lord thy God has delivered it into thy hands, thou shalt smite every male of it with the edge of the sword; but the women, and the little ones, and the cattle, and all that is in the city, all the spoil of it, shalt thou take to thyself; and thou shalt eat the spoil of thy enemies, which the Lord thy God has given thee.85 82 Devorim (Deuteronomy), 20:19-20, quoted from Fisch, Tom, also see Talmud Bavali, tractate Sanhedrin, 8:2a. It is interesting to note that not only may the fruit tree not be destroyed but that even those trees that can be cut down must only be destroyed for a matter of great importance. 83 Maimonides (Rabbi Moses ben Maimon) was born in Cordova, Spain, in 1135 CE, died in Fostat, Egypt, in 1204 CE and was buried in Tiberias. The two outstanding works of this physician and great Jewish scholar, philosopher and codifier of the Middle Ages are Mishne Torah, a Hebrew compendium of the entire Halakha, which he completed in 1180, and More Nevukhim {Guide for the Perplexed), an exposition of the Jewish faith (completed 1190). 84 Roberts, "Judaic sources of and views on the laws of war," 37 Naval Law Rev (1988), 231. 85 Devorim, 20:10-14, quoted from Fisch, Tora. It should also be noted that within Jewish law, a positive obligation rests on the Jewish nation to seek peace and the surrender of an enemy city prior to commencing military operations involving attacks against cities populated by civilians. Maimonides, commenting on Halachos Melochim (Law of Kings) 6:5, supported by Aruch Ha Schulchan 75:6-7 on Halachos Melochim, 42 The words of the prophet Elisha illustrate the Judaic approach to the treatment of an enemy, when as the King of Israel approached him regarding the treatment to be afforded the prisoners of Aram, he stated: And the King of Yisra'el said to Elisha, when he saw them, My father, shall I smite them? shall I smite them? And he answered, Thou shalt not smite them: wouldst thou smite those whom thou hast taken captive with thy sword and with thy bow? Set bread and water before them, that they may eat and drink and go to their master. And he prepared great feast for them: and when they had eaten and drunk, he sent them away, and they went to their master.86 Further, and in keeping with the words of Elisha above, it is taught in Mishle that, "If thy enemy be hungry, give him bread to eat; and if he be thirsty, give him water to drink; for thou shalt heap coals of fire upon his head, and the Lord shall reward thee."87 states that Joshua, before he entered the land of Israel, sent three letters to its inhabitants — the first offering those that wished to flee should flee, the second offering those that wished to make peace should do so and the third warning that those who wanted war should prepare to fight. Further, Maimonides, in commandments 187 and 190, also codifies a number of specific rules of military ethics that relate to the laying of siege to a city. Nachmonides, the foremost critic of Maimonides, citing Bemidbar XXXI, 7, includes the prohibition against surrounding the city on all sides: one side must be left open to allow the inhabitants to flee the combat. Jewish tradition accepts that civilians and soldiers who are hors de combat are always permitted to flee from the scene of the batde. Particularly in combination with Joshua's practice of sending letters of warning in advance of combat, this legal approach limits gready the role of the doctrine of "innocent civilian" in the Jewish tradition. Furthermore, Jewish tradition mandated many other rules that prescribe certain tactics that violated ethical and behavior norms, even in war. Nachmonides, again, in his criticism of Maimonides Safer Ha-Mitzvos, citing Bemidbar 31:7, holds one as requiring one to have mercy on one's enemy as one would have mercy on one's own. Undue cruel activity, even rape of the female civilian population of the enemy, was regulated under Kidushin 21b. 86 2 Melakhim (2 Kings), 6:22-3, quoted from Tora, Fisch, trans. The events chronicled in 2 Kings transpired in approximately 790 BCE. It is important to note that although the texts cited may vary from 200 BCE to 1200 CE, the foundation and textual basis for these writings are found in the Torah. Also see Green, The Contemporary Law of Armed Conflict, pp. 20, 22, 287 87 Mishle (Proverbs) 25:21-22, quoted from Tora, Fisch, trans. This passage raises a seeming dichotomy, in that the reader is instructed to fulfil the Godly attributes of compassion and mercy to an enemy, yet the closing section speaks of the destruction of the very same foe. I suggest that this passage, while allowing for the attack and destruction of an enemy force in battle, requires compassion for one's enemy who is hors de combat. 43 (v) Islam The Islamic approach to war in general can be found words of the Prophet Muhammed88 when he writes of the manner in which Islamic soldiers are to approach combat. At Surah IV, 71-76, they are enjoined to prepare themselves, to fight in the manner allowed, not to fear the consequences of victory or defeat but to be sure they fight in the name and will of Allah.89 The Surah states: 71. O you who believe! Take precaution, then go forth in detachments or go forth in a body. 72. And surely among you is he who would certainly hang back! If then a misfortune befalls you he says: Surely Allah conferred a benefit on me that I was not present with them. 73. And if grace from Allah come to you, he would certainly cry out, as if there had not been any friendship between you and him: Would that I had been with them, then I should have attained a mighty good fortune. 74. Therefore let those fight in the way of Allah, who sell this world's life for the hereafter; and whoever fights in the way of Allah, then be he slain or be he victorious, We shall grant him a mighty reward. 75. And what reason have you that you should not fight in the way of Allah and of the weak among the men and women and the children, (of) those who say: Our Lord! Cause us to go forth from this town, whose people are oppressors, and give us from Thee a guardian and give us from Thee a helper. 76. Those who believe fight in the way of Allah, and those who disbelieve fight in the way the Shaitan. Fight therefore against the friends of the Shaitan; surely the strategy of the Shaitan is weak. 88 The Prophet Muhammed, born 570 CE, died 632 CE. 89 R. Firestone, Jihad: The Origin of Holy War (Oxford: Oxford University Press, 1999), pp. 84-91: also see Green, The Contemporary haw of Armed Conflict, pp. 22, 23; Paul Fregosi, Jihad in the West: Muslim Conquestsfrom the 7th to the 21 st Centuries (Amherst: Prometheus Books, 1998). For an interesting, if not academic work, on Islamic/Christian conflicts, see M. J. Akabar, The Shade of Swords: Jihad and the Conflict Between Islam and Christianity (London: Roudedge, 2002). 44 Recognition of the essential requirement for humanity in war necessitating limitations on armed conflict90 appeared in Islamic thought by the early part of the seventh century CE, a result of the writings of Muhammed, the influence of Jewish and Christian principles on the conduct of war as well as incorporation of some Greek and Roman concepts on war.91 The leading Islamic statement on the law of nations, written in the ninth century, reflects in general terms the same principles as were laid down in the Torah, including a ban on the killing of women, children, the elderly, the blind, the crippled and the mentally infirm.92 The first caliph, Abu Bakr,93stated the Islamic view on the moral conduct of war as: "The blood of women, children and old people shall not stain your victory. Do not destroy a palm tree, not burn houses and cornfields with fire, and do not cut any fruit tree. You must not slay any flock or herds, save for your subsistence."94 Of particular note in the Islamic view on the waging of war is the Judaic and Islamic parallel that can be seen in the rules pertaining to cities under 90 Firestone, Jihad, pp. 50-51, 73-77; also see Green, The Contemporary Caw of Armed Conflict, pp. 22, 23; also see Ati ibn Abi Bakr, Hid~ayah, The Hedaya, or Guide: a Commentary on the Mussulman Caws, Charles Hamilton, trans., (Delhi, India: Islamic Book Trust, 1982). 91 For a general description of early Islam and the conduct of war by Muhammad and his followers, see Edward Gibbon, The Decline and Fall of the Roman Empire (London: J.M. Dent, 1954), chapt. 50, pp. 257-69, 274, 282-84, 287-88; also see Green, The Contemporary Caw of Armed Conflict, pp. 22, 23. 92 Islamic Caw of Nations (Shaybani's Siyar, c. early ninth century), tr. Khadduri (Baltimore: Johns Hopkins Press, 1966), pp. 29-31, 47, 81,110-11; for a further discussion of the parrallels between Islamic And Judaic law see Jacob Neusner, Comparing Religions through Caw: Judaism and Islam (London; New York: Roudedge, 1999). 93 Abu Bakr was the Prophet's closest friend and eventually his father-in-law. On the death of the Prophet, Abu Bakr was chosen by consensus to become the first Caliph and carried out these duties from 632 CE until his death in 634 CE. 94 Greenwood, "Historical Development and Legal Basis," p. 14. Abu Bakr's expression of the Islamic concept of moral conduct in war bears great similarity to the Jewish position expressed above. 45 siege, which were to be treated by Islamic forces in a fashion similar to that laid down for the Jewish nation in Devorim.95 Islam teaches those involved in combat to be honest with their enemies, enjoining them to practice the divine concepts of mercy, moderation and compassion, forbidding them from acting beyond the constraints of justice.96 Yet the Qur'an at Surah XLVIII, 22 states: "And if those who disbelieve fight with you, they would certainly turn [their] backs, then they would not find any protector or helper."97 Further, the Qur'an states at Surah VIII: 15. O you who believe! when you meet those who disbelieve marching for war, then turn not your backs to them.98 Later, in the same Surah, the Islamic view of the infidel enemy is made clear when it is written: 65. O Prophet! urge the believers to war; if there are twenty patient ones of you they shall overcome two hundred, and if there are a hundred 95 Ibid., pp. 1, 55; see note 46 above; also see Walker, History of the Law of Nations, for his views on the Muslim conduct during siege warfare. 96 Alib Hasan Al Muttaqui, Book oiKanwi'umman, vol. 4 (1979), p. 472; H. Sultan, "The Islamic Concept," in International'Dimensions of Humanitarian Lay/UNESCO (Dordrecht: Martinus Nijhoff, 1988), pp. 29, 32: see also, The Islamic Law of Nations (Shaybani's Siyar), p. 1711; Majid Khadduri, The Law of War and Peace in Islam: a Study in Muslim International Law (London: Luzac & Co., 1940), reprinted as War and Peace in the Law of Islam (Baltimore: Johns Hopkins Press, 1955); Islamic Law: Theoty and Practice, edited by Robert Gleave and Eugenia Kermeli (London: LB. Tauris, 2001); C. G.Weeramantry, Islamic Jurisprudence: An International Perspective (New York: St. Martin's Press, 1988); Green, The Contemporary Law of Armed Conflict, pp. 22, 23, 287; and J. Schacht, The Origins ofMuhammadan Jurisprudence (Oxford: Clarendon Press, 1967). 97 Quoted from The Qur'an, trans. M.H. Shakir (Elmhurst: Tahrike Tarsile Qur'an, 1999). 98 Quoted from The Qur'an, trans. M.H. Shakir. 46 of you they shall overcome a thousand of those who disbelieve, because they are a people who do not understand." The Qur'an goes on to comment, however, on the Islamic treatment and attitude of monotheistic non-Muslims, where at Surah XL VIII, 29, it states: Muhammad is the Apostle of Allah, and those with him are firm of heart against the unbelievers, compassionate among themselves; you will see bowing down, prostrating themselves, seeking grace from Allah and pleasure; their marks100 are in their faces because of the effects of their prostration; that is their description in the Taurat101 and their description in the Injeel;102 like as seed-produce that puts forth its sprout, then strengthens it, so it becomes stout and stands firm on its stem, delighting the sowers that He enrage the unbelievers on account of them; Allah has promised those among them who believe and do good, forgiveness and great reward.103 When the armed combat involved the followers of Islam and non-Muslims, the "Muslims were under legal obligations to respect the rights of non-Muslims, both combatants and civilians."104 Moreover, while Islam teaches that prisoners of war should not be killed but instead ransomed or set free without 99 ibid. 100 A mark of bruising and dust seen on the forehead of some devout Muslims incurred from prostrating before God and seen as a mark of devotion. 101 Arabic word for Torah, the five books of the Hebrew Bible, as noted above. 102 Arabic word for Gospels or Christian Bible. 103 Quoted from The Qur'an, trans. M.H. Shakir. 104 Khadduri, Intro., p. 13; the general attitude of Islam toward Christians and Jews is found in the Qur'an, Surahs IV, 71-76 and XL VIII, 29, noted above. However, this did not preclude Muslims from going to war against those termed non-believers. For more on the Islamic concept of war on non-believers, also see Green, The Contemporary Caw of Armed Conflict, p. 22; Alexandrowicz, 100 Hague Recueil (1960, II), pp. 235-238. For a review of the Islamic perspective on Muslim/non-Muslim conflicts, see Fregosi, Jihad in the West, pp. 71-100; M. J. Akbar, The Shade of Swords: Jihad and the Conflict between Islam and Christianity; Rudolph Peters, Jihad in Mediaeval and Modern Islam, in the chapter on Jihad from Averroes' legal handbook Bidayat al-mudjtahid and the treatise "Koran and fighting" by the late Shaykh-al-Azhar, Mahmud Shaltut, trans, and annotated by Rudolph Peters (Leyden: Brill, 1977). 47 ransom.105 Prisoners and captives could be executed under certain compelling circumstances, but this would not be carried out if the prospective victims chose to convert to Islam.106 In such cases, these forced converts were to be regarded as war prizes and were divided among their captors.107 Despite the philosophical and religious injunctions to act morality, the actual record of war between Islam and Christianity does not reflect well on the adherence to the moral positions.108 105 This precept is based on Qur'an XL VII, 4, which states: "So when you meet in battle those who disbelieve, then smite the necks until when you have overcome them, then make (them) prisoners, and afterwards either set them free as a favour or let them ransom (themselves) until the war terminates. That (shall be so); and if Allah had pleased He would certainly have exacted what is due from them, but he may try some of you by means of others; and (as for) those who are slain in the way of Allah, He will by no means allow their deeds to perish." Also see Usamah ibn-Munqidh, "An Arab-Syrian Gendeman, " in Keegan, ed., The Book of War, for an interesting description of a 509 CE battle between Islamic and Christian forces. toe •j'jjg Qur'an, Surah IV, 94 offers one view on how Islam views dealing with non-believers in war where it states: "O you who believe! when you go to war in Allah's way, make investigation, and do not say to any one who offers you peace: You are not a believer. Do you seek goods of this world's life! But with Allah there are abundant gains; you too were such before, then Allah conferred a benefit on you; therefore make investigation; surely Allah is aware of what you do." 107 Ibid. 108 Greenwood, "Historical Development and Legal Basis," p. 14. Greenwood comments on the exception to the normally brutish warfare practiced during the Islamic/Christian conflicts of the eleventh, twelfth and thirteenth centuries. During the twelfth century batde for Jerusalem between the Sultan Saladin and the Crusaders, the laws of war were, according to Greenwood, observed in ".. .an exemplary manner." Of particular note was the actions of Saladin in ordering the treatment of the wounded on both sides of the conflict outside of Jerusalem, and in his allowing the members of the Order if St. John to attend to their ministrations for the injured and dying. Some three centuries after Saladin, the Turkish Sultan Mehmet demonstrated great mercy to the citizens of Constantinople during the great siege. See Greenwood, "Historical Development and Legal Basis," p. 14; Andrew Wheatcroft, "The Fall of Constantinople," in Keegan, The Book of War, pp. 60-69; Fregosi, Jihad in the West, pp. 248-264; for a full description of the epic siege, see Sir Edwin Pears, The Fall of Constantinople, Being the Story of the Fourth Crusade; Sir Stephen Runciman, The Fall of Constantinople, 1453 (Cambridge: Cambridge University Press, 1965); and Sir Stephen Runciman, The Great Church in Captivity: A Study of the Patriarchate of Constantinople from the Eve of the Turkish Conquest to the Greek War of Independence (London: Cambridge University Press, 1968). 48 (vi) Christianity Early Christianity, unlike other major faiths and cultures of the time, refused to accept the morality of armed conflict.109 Yoram Dinstein notes that, "as long as the Roman Emperors were pagans, the Church upheld a pacifist posture.. ."no The earliest Christian fathers of the faith, such as Origen (185-254 CE), Lactantius (died c. 330 CE) and Justinus (c. 100-165 CE), adopted a position of extreme pacifism that forbade a Christian from taking part in war.111 It was only after Christianity became the official religion of the Roman Empire during the reign of Constantine that the Church moved its position.112 With the work of St. Augustine (354-430 CE), the concept of "just war" and therefore, the duty to participate in war, was given authority in the church.113 Once the concept of "just war" was accepted, the church began to address the manner in which a Christian soldier and commander could practice the art of war and establish the standard of moral conduct expected on the battlefield. 109 For an interesting discussion of the earliest Christian perspective on war, see C.J. Cadoux, The Early Christian Attitude to War: A Contribution to the History of Christian Ethics (London: Headley Bros., 1919); and Gibbon, The Rise and Fall of the Roman Empire, chapt. 15; Green, The Contemporary Caw of Armed Conflict, pp. 23-25, 287, 288. For a more modern view of the Christian perspective on all aspects of war, particularly post-Victorian conflicts, see P. Ramsey, War and the Christian Conscience (Durham, N.C.: Duke University Press, 1961). 110 Yoram Dinstein, War, Aggression and Self-Defence (Cambridge: Grotius, 1988), p. 62; Y. Le Bohec, The Imperial Roman Army (London: Batsford, 1994), pp. 251-52, 256-58. 111 Brownlie, International Caw and the Use of Force by States, p. 4. 112 Dinstein, War, Aggression and Self-Defence, p. 62. 113 Brownlie, International Caw and the Use of Force by States, p. 4; Dinstein, War, Aggression and Self-Defence, p. 62. It is interesting to note that the Church's shift in position on war was significant and extreme — moving from absolute pacifism where martyrdom was preferable to combat — to an position of expectation for Christians to fight and shed their blood as well as the blood of enemies for the Empire and the Church. 49 Drawing on Jewish law in combination with various works of Greek philosophy, codes of conduct for the use of arms in war were developed and taught in Europe during the Middle Ages.114 These codes constituted the pragmatic framework for imposing legal and morally defensible methods of the use of arms in war.115 By the early twelfth century, the Roman Catholic Church had begun to establish specific codes of conduct for Christian knights, particularly addressing those acts that would be viewed as hateful in the eyes of God, Church and civilized men.116 Not only was the Church concerned with the manner in which Christian nobles approached the conduct of a campaign, but the Church also dictated, and would continue to so do for the next several centuries, the weapons that could be used to wage war.117 Of particular distress to the Church were those weapons that, by their nature and by the manner of injury inflicted, were 114 Green, The Contemporary Caw of Armed Conflict citing Gardot, Te Droit de la Guerre dans 1 'Oeuvre des Capitaines Francais du XVle Siecle, 72 Hague Recueil (1948), pp. 297, 452-53, 467-73. 115 Green, The Contemporary Law of Armed Conflict, pp. 23-25, 288; Greenwood, "Historical Development and Legal Basis," pp. 15-16; also see C. W. C. Oman, The Art of War in the Middle Ages: A.D. 378-1515 (Ithaca: Cornell University Press, 1968); and Cadoux, The Early Christian Attitude to War. 116 The matters of conduct in war and the use of specific weapons were addressed at the Second Lateran Council. Convoked by Pope Innocent II in April 1139, the Council was an attempt to smooth away the lingering friction following the schism of 1130-1138 and to correct and condemn various errors and abuses that were occurring within the clergy and the community. The almost one thousand princes of the Church representing most Christian nations were present. Beyond the matter of banning certain acts and weapons of war, the assembly witnessed Innocent II depose from holy office all who had been ordained by the antipope. The council, in twenty-eight canons, also condemn the errors of heretics, and drafted amendments of ecclesiastical morals and discipline. 117 Green, The Contemporary Law of Armed Conflict, pp. 23-24; Pierino Belli, De Re Militari et Bello Tractatus, Pars VII, cap. 29 and Pars. Ill, Cap. Ill, 29, Venice, 1563, reprinted with translation H.C. Nutting, (Oxford: The Claredon Press; London, H. Milford, 1936; reprinted Buffalo, N.Y.: W.S. Hein, 1995). 50 considered to be anathema to Christian doctrine, including the crossbow, arc,118 "darts" and catapults.119 The Middle Ages also saw the enactment of laws that made certain "acts of war" — for example, directing violence against non-combatants — capital crimes.120 These "laws of chivalry" eventually became a codified body of accepted customary chivalrous conduct and were enforced and judged by special tribunals and courts121 The power of these courts included the right to sit in judgement of accused knights who were alleged to have committed deliberate or wilful violations of the law of arms.122 Such charges carried sentences ranging from dishonour to death.123 These chivalric codes and courts were not without 118 Middle English ark, through Old French arc, from Latin arcus, bow or curve. Canadian Oxford Dictionary, 2001, s.v. ate; Webster's Third New International Dictionary, unabridged, s.v. arc. 119 Greenwood, "Historical Development and Legal Basis," p. 14; Green, The Contemporary Caw of Armed Conflict, pp. 23-24; Belli, De Re Militari et Bello Tractatus, pp. 186 - 187 in translation; Gerald I. A. Draper, "The Interaction of Christianity and Chivalry in the Historical Development of the Law of War," 5 Int'l Rev. Red X (1965), pp. 3,19. While both the Second Lateran Council and the Corpus Juris Canonici forbade the use of certain weapons that afforded the users the ability to injure or kill an opponent with litde direct risk to themselves, given the prevalence of the cross-bow and the use of catapults, one can only assume that the proscription on these weapons was practised more in the exception than the rule. The term corpusjuris, although never having received legal sanction in canon law, is used in the sense of the official and complete collection of legislation made by a legislative body, comprising all of the laws in force within the legislative jurisdiction. The laws of the Catholic Church themselves have been known by many names throughout the centuries, but by the later half of the thirteenth century, the Corpus Juris Canonici was generally considered to be constituted of the Decretals of Gregory IX, Boniface VIII and Clement V. The ban on the weapons was added to the collection of Decretals in 1500 as part of Decretal V. 120 Green, The Contemporary Caw of Armed Conflict, pp. 23-25, 288; Maurice H. Keen, The Taws of War in the Tate Middle Ages (London: Roudedge and Keegan Paul, 1965), chapt. 2 and 3; and G. D. Squibb, The High Court of Chivalry: A Study of the Civil Taw in England (Oxford: Clarendon Press, 1959), chapt. 23. 121 In England and France, these tribunals were known as Courts of Chivalry. 122 Keen, The Taws of War in the Tate Middle Ages p. 27; see also Green, The Contemporary Taw of Armed Conflict, p. 288; Maurice H. Keen, Chivalry, (New Haven: Yale University Press, 1984); see also Squibb, The High Court of Chivalry, chapt. 23. 123 Ibid, chapt. 2 and 3; see also Contamine, War in the Middle Ages (Eng. tr., 1984), pp. 289-92; see also Squibb, The High Court of Chivalry. 1997, ch. XII, "The law of arms"; G. Draper, The Interaction of Christianity and Chivalry 51 their limitations, however: such judicial mechanisms could regulate the behaviour only of the knights, not of the foot soldiers.124 The duty of discipline over the ordinary soldier, embodied in the concept of the "right of justice," was left to the commanding officer or knight of the individual troops.125 Green notes that as early as 1385, the English Crown had issued clear orders that set the limits and scope of a military commander's powers. These common-man soldiers or men-at-arms became subject to a disciplinary code that included rules with respect to the taking and distribution of booty, prohibitions on pillage and the destruction of private property as well as respect for priests, women, children, the infirm and others.126 While individual courts did try those accused of violating the codes of chivalry, the trials were usually carried out by the accused's own nation or by the victors in a conflict, should the accused be so unfortunate as to be captured. in the Historical Development of the Law of War, IRRC 7 (1965), 3 and Fredrick .H. Russell, The Just War In the Middle Ages, (Cambridge: Cambridge University Press, 1975). 124 Greenwood, 'Historical Development and Legal Basis"; p. 14; Green, "The Contemporary Law of Armed Conflict", pp. 24-25, 288. 125 Green, The Contemporary Law of Armed Conflict, p. 25. It should be noted that, with the decline of chivalric orders and the European descent into the inhumane horrors experienced during the Thirty Years War, Japanese warriors and leaders were developing rules on the conduct in war, reflective of many of the old codes, particularly the Mahabharata and the laws of Manu, yet in a manner similar to the advanced levels of humanity, only considered in Europe in the nineteenth century. The Code of Bushido in sixteenth-century CE Japanese military code, that, according to Samio Adachi, in The Asian concept, UNESCO, International Dimensions of Humanitarian Law, (Nijhoff, Dordrecht, 1988), at pp. 13,17, prescribed that ".. .every soldier must report to the commander about prisoners of war.... He shall be guilty of manslaughter if he kills them with his own hands. Prisoners of war shall not be executed wantonly regardless of whether they laid down their arms or fought to the last arrow." Greenwood, quoting the Japanese tactician Sorai, states that, ".. .whoever kills a prisoner of war shall be guilty of manslaughter, whether that prisoner had surrendered or fought 'to the last arrow.' Green, The Contemporary Law of Armed Conflict, p. 25. 52 The first recorded "international" war crime tribunal occurred in 1474 in the Upper Rhine.127 Vogt Peter Von Hagenbach, sent by the Duke of Burgundy to be governor of the occupied town of Breisach on the Upper Rhine, was given the responsibility to maintain order in the town and surrounding area.128 It was alleged that he ordered the non-German mercenary forces under his command to enforce obedience and order on the hapless inhabitants through a campaign of terror that included such savage extravagances as murder, rape, unlawful taxation and the shameless expropriation of private property.129 In one example, four citizens who could not pay the taxes that were demanded of them were hung in prominent places around the city as a deterrent to others.130 As a result of the actions of Von Hagenbach and his troops, the coalition of forces from Austria, France, Bern and the free-towns of the Upper Rhine, a coalition formed to resist the Duke of Burgundy, began its campaign by laying siege to Breisach. The citizens of the city and Von Hagenbach's own mercenaries 127 G. Schwarzenberger, International Law, vol. 2, The Law of Armed Conflict, ch. 39, (London, Stevens & sons, 1945); Historische Personen, Vogt Peter von Hagenbach, in German, at web site; http://www.mediatime.ch/musetim/personen/index.htm; Don Murray, Judge andMaster, CBC News Viewpoint | July 18, 2002, ^^://www.cbcxa/news/viewpoint/vp_murray/20020718.html; Historischen Lexikon der Schweiz; Burgunderkriege, in German, http://www.lexhist.ch/externe/protect/textes/d/D8881-l-464.html. 128 Schwarzenberger, International Law; Don Murray, Judge and Master, Historische Personen, Vogt Peter von Hagenbach. 129 Ibid. 130 Historische Personen, Vogt Peter von Hagenbach. 53 betrayed the governor, deserting from his service and allowing the coalition army to take the city and capture the Landvogt.131 Rather than summarily execute Von Hagenbach or turn him over to the local inhabitants for an execution preceded by local trial, the Archduke of Austria, at that point responsible for governance of the area surrounding Breisach, decided to hold what is now considered the first recorded trial of a war criminal by an international tribunal.132 The Court, presided over by the Archduke of Austria himself as chief judge and prosecutor, was constituted of twenty-eight judges from the Hanseatic League, including representatives from Alsace, Switzerland and states of the Holy Roman Empire, thus making the court tantamount to an international tribunal.133 Von Hagenbach was charged with "crimes against the law of God and humanity," specifically with ordering the murders, rapes and other atrocities carried out by his troops on the citizens of Breisach.134 He was also accused of ordering his foreign mercenaries to kill the men in the houses where they were quartered so that the women and children would be without protection and at 131 Schwarzenberger, International Law; Don Murray, Judge and Master, Historische Personen, Vogt Peter von Hagenbach. 132 Schwarzenberger, International Law; Don Murray, Judge and Master 133 Schwarzenberger, International Law; Don Murray, Judge and Master, Historische Personen, Vogt Peter von Hagenbach. 134 Ibid. 54 the mercy and whim of Von Hagenbach's men.135 The Vogt began the proceedings by arguing that he could not be judged by the court, for he recognized no other judge but his lord and master, the Duke of Burgundy. Not surprisingly, this line of defence did not impress the assembled judges, and the trial continued.136 Von Hagenbach and his counsel then led the defence of "superior orders," a defence that was to be raised innumerable times through the centuries until the Nuremberg and Tokyo Tribunals after World War II. Von Hagenbach attempted to argue that, as a soldier, he owed absolute obedience to his superior, the Duke of Burgundy, who he suggested was ultimately responsible for the actions of the Vogt and his troops.137 Ultimately, the court rejected his arguments, found him guilty of the charges, stripped him of his knighthood and ordered him beheaded138 for "having trampled under foot the laws of God and of man."139 On 9 May 1474 at four o'clock in the morning, he was executed.140 Almost 450 years 135 Don Murray, Judge and Master 136 Schwarzenberger, International Law; Don Murray, Judge and Master, Historische Personen, Vogt Peter von Hagenbach. 137 Schwarzenberger, International Law; Don Murray, Judge and Master. 138 Ibid. 139 G. Schwartzenberger, The Law of Armed Conflict, International Law as Applied by International Courts and Tribunals (London: Stevens 1968) at 462-466 and also see William Fenwick, "The prosecution of War Criminals in Canada," (1989) 12 Dalhousie L.J., p. 275. 140 Historische Personen, Vogt Peter von Hagenbach. 55 elapsed after that trial before another attempt was made at organizing such prosecutions. By the beginning of the sixteenth century, the combination of the decline of chivalric orders, the development and utilization of firearms and the growing reliance on mercenary armies had begun the steady descent into a moral abyss that was most readily apparent in the inhumane conduct of conflict during the Thirty Years War.141 In spite of, or perhaps because of, the regression of "war morality" in the post-Middle Ages period, development of a new body of literature on the conduct of war began to emerge from the writings of the "classical fathers" such as Vittoria, Belli, Gentili and Grotius.142 Gentili, in his great work, De Jure Belli, libri tres, so clearly wrote on the issue of maintaining morality in the conduct of arms and the consequences when that morality is found wanting: In war ... victory is sought in no prescribed fashion ... but an enemy should be dealt with according to law.... In dealing with a just and lawful enemy we have the whole fetial law and many other laws in common.... It is the manner of the killing which is forbidden. Necessity does not oblige us to violate the rights of our adversaries [but] the laws of war are not observed towards one who does not himself observe them.... He is foolish 141 Green, The Contemporary Caw of Armed Conflict, pp. 26-29; Greenwood, "Historical Development and Legal Basis",pp. 15-16; also see Keen, The Caws of War in the Tate Middle Ages. 142 The works of these classical fathers, listed below, continue through to today to influence modern thought on the laws of war. Franciscus de Vittoria, Selections Theologicae, Lyon, 1557, reprinted and translated, (Washington : The Carnegie Institution of Washington, 1917); Belli, De Re Militarai et Bello Tractatus; Alberico Gentili, De Jure Belli, libri tres, Hanau, 1598, reprinted with translation J.C. Rolfe, (Oxford : The Clarendon press; London, H. Milford, 1933), also available from (New York: Oceana Publications, 1964); and Hugo Grotius, Hugonis Grottii Dejure belli ac pads libri tres, in quibusjus naturae [et] gentium, itmejuris publici praceipua explicantur, Paris, 1625, reprinted and translated, (London: Clarendon press, 1925). 56 who connects with the laws of war the unlawful acts committed in time of war. In this connection I make no allowance for retaliation.... At some time the enemy will have to render account to God, and he will render it to the rest of the world, if there is no magistrate here to check and punish the injustice of the victor. He will render an account to those sovereigns who wish to observe honourable causes for war and to maintain the common law of nations and of nature.143 Grotius, sharing concerns similar to those of Gentili and explaining why he felt compelled to write on the conduct of war and its abuses, said: I saw prevailing throughout the Christian world a licence in making war of which even barbarous nations should be ashamed; men resorting to arms for trivial or for no reason at all, and when arms were once taken up, no reverence left for divine or human law, exactly as if a single edict had released a madness driving men to all kinds of crime.14' In the seventeenth century, England, in seeking to regulate the behavioural excesses of the armed forces, had developed a series of laws that 143 Green, The Contemporary Taw of Armed Conflict, p. 288 quoting from the Carnegie translation of Gentili at Lib. II. Cap. Ill, VI, XXIII. XXI, found at pp. 142,143,146 159, 272, 257 of the American printing. 144 Grotius, Prolegomena to the Taw of war and peace, Translated by Francis W. Kelsey, (New York, Liberal Arts Press, 1957), p. 28. It is interesting to note that while Grotius had great empathy with suffering, he was not adverse to seeing those guilty of serious crimes in conflict punished most severely. In the A. C. Campbell translation of The Rights of War and Peace, (London, M. Walter Dunne, 1901), Grotius, in Chapter XX, "On Punishments", at p. 226 notes the difference between Aristotle and Plutarch on the objective of punishment. Grotius states: "Aristotle passing over example as a motive, confines the object of punishment to the amendment or correction of the offender. But Plutarch has not made the same omission: for he has said, that "where immediate punishment follows the execution of a heinous crime, it both operates to deter others from committing the same crime, and administers some degree of consolation to the injured and suffering person." . Further, at page 227, in commenting on the use of capital punishment, he states: "But this kind of corrective punishment does not extend to death, which can not be considered, as a benefit in itself, except INDIRECTLY and BY WAY OF REDUCTION, as it is called by Logicians, who, in order to confirm negatives, reduce them to things of an opposite kind. Thus, in Mark xiv. 21, when our Saviour says, that it were better for some, they had never been born, so, for incurable dispositions, it is better, that it would be a less evil, to die than to live; since it is certain that by living they will grow worse. Plutarch calls such men a pest to others, but the greatest pest to themselves. Galen says that capital punishments are inflicted to prevent men from doing harm by a longer course of iniquity, and to deter others by the fear of punishment, adding that it is better men should die, when they have souls so infected with evil, as to be incurable." 57 stood as Articles of War similar in content to other existing codes developed in France, Switzerland and Germany.145 The English Act, similar to the Articles of War proclaimed by Gustavus Adolphus of Sweden, sought to restrain, if not forbid, acts such as unauthorized attacks against towns and villages, individual acts of violence against the enemy without authorization from a superior officer, plus pillage, theft for private gain or detention of an enemy prisoner for personal financial gain.146 B. War Crimes: Nineteenth and Twentieth Centuries From the time of Gentili in the early 1600s until the end of the nineteenth century, there was little progress in the area of international law concerning war crimes until the dissemination of the Lieber Code by U.S. President Abraham Lincoln in 1863.147 This Code particularized a number of acts that, if committed by United States military personnel during armed conflict, would be considered 145 Green, The Contemporary Law of Armed Conflict, p. 25. 146 Documents on the Law of War, 3rd ed., Adam Roberts and Richard Guelff, eds., (Oxford University Press, Oxford, 2001), p. 3. 147 "Instructions for the Government of Armies of the United States in the Field, General Orders," No. 100, 24 April 1863 in D. Schindler and J. Toman, The Laws of Armed Conflict, (Dordrecht: Martinus Nijhoff, 1988), p. 3; Green, The Contemporary Law of Armed Conflict, p. 29; also see G. R. Doty, The United States and the Development of the Laws of Land Warfare, 156 Military Law Review 1998, 224. The Lieber code, a manual on conduct in war and based on international jurisprudence, was developed by Dr. Francis Lieber (1800-1872), a professor of political science and law at Columbia University for President Abraham Lincoln. This manual of law was first used in 1863 and was the guiding document for the Union Army in the latter half of the American Civil War (1861-1865). The Code addressed such issues as respect for civilians and civilian property (Arts. 22-23 and 34-38), armed forces only attack enemy combatants (Art. 15) and humane treatment of prisoners of war (Art. 49). 58 criminal, with some acts being regarded as so grave as to warrant immediate imposition of capital punishment without benefit of due trial process.148 The Lieber Code went so far as to assert the right of an American tribunal, civilian or military, to try each and every person who ".. .intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed."149 The Lieber Code was put the test soon after its proclamation when Col. Wirz, the commandant of the Andersonville Confederate prisoner-of-war camp, was tried and condemned for the several atrocities that today would be classified as war crimes as well as crimes against humanity committed by the Confederate camp staff against Unionist prisoners.150 Within decades following its introduction, the Lieber Code became the prototype for a series of similar codes that emerged in Europe.151 In fact, the Lieber Code, specifically, served as the example for the Institute of International 148 Art. 44 of the Code, which condemns "wanton violence" against persons and property in invaded territory. 149 Ibid, Art. 71. 150 (1865) H.R. Exec. Doc. no. 23, 40th Cong., 2d Sess., 1867-8, Vol. 8; Green, The Contemporary Taw of Armed Conflict, p. 289; for more on the acts of Col Wirz, see A. Spencer, A narrative of Andersonville: drawn from the evidence elicited on the trial of Henry Wir% thejailer, with the argument of Col. N.P. Chipman, (New York : Harper, 1866) and A. E. Stearns, The Civil War diary of Amos TL. Stearns, a prisoner at Andersonville, (London: Associated University Presses, 1981). 151 Holland, The Taws of War on Tand, 72-73 and Green, The Contemporary Taw of Armed Conflict, p. 289. 59 Law's Oxford Manual of the Laivs of War on Land152 and the Brussels Project of an International Declaration concerning the Laws and Customs of War.153 Both works support the concept that belligerents do not have an unrestricted right as to the means of warfare, a concept later expanded upon in the Martens Clause adopted by the delegates at the 1899 Hague Conference.154 The Oxford Manual further advances the early development of the law concerning war crimes wherein it advocated, under the section entitled "Penal Sanction," that those who violate the rules should be tried and punished before a formal judicial process.155 The European states met in 1899 and 1907 for The Hague conferences and adopted the Convention with Respect to the Laws and Customs of War on Land.156 The High Contracting Parties, however, unwilling to adopt the position 152 1874. See D. Schindler and J. Toman, The Laws of Armed Conflict, p. 27. 153 1880. See Schindler and Toman, The Laws of Armed Conflict, p. 35; Green, The Contemporary Law of Armed Conflict, p. 32. 154 For a description of the Hague Conventions, see note 104 below. The Martins clause, the preamble to the Convention (II) Respecting the Laws and Customs of War on Land, is not only of significant historical significance, but holds equal import today where in it states: "The High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgement of military commanders. Until a more complete code of the laws of war is issued, the High Contracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usage established between civilized nations, from the laws of humanity, and dictates of the public conscience." In other words, the Martins clause brings into the discussion of the laws of war the concept that, insofar as the laws of armed conflict are silent on a specific issue or action, customary international will govern. Thus the clause established the fundamental concept that, whatever is not expressly forbidden by the laws of armed conflict, is not necessarily permitted. 155 Three notable international agreements on the conduct of war were developed in the years around the authoring of the Lieber Code and before the development of The Hague Conventions. They are, the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, the 1856 Paris Declaration Respecting Maritime Law, and the 1868 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. 156 Hague Convention 1899 and 1907. See, Roberts and Guelff, Documents on the Law of War, pp. 9-10, 58-137; Schindler and Toman, The Laws of Armed Conflict, p. 65; Green, The Contemporary Law of Armed Conflict, pp. 31-34; 60 advocated in the Oxford Manual for the prosecution of "war criminals," were prepared only to concede that a ".. .belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces."157 The only reference The Hague Convention makes to individual liability relates to the responsibility of an individual for an intentional breach of the terms of an armistice.158 The failure of The Hague Convention to address individual liability for violations of the Convention should not, however, be interpreted as meaning a belligerent could not proceed against an individual, civilian or military, whether or not their own national, who is alleged to have committed a breach of the customary law of war. At the end of the First World War, the Allied powers established a commission to investigate the conduct of the Central Powers and recommend Brownlie, International Lam and the Use of Force by States, pp. 24-25. In 1899, at the invitation of the Russian Czar, twenty-six countries met at the Hague to consider a series of initiatives that would become the Hague Conventions. The countries adopted Conventions and Declarations that are today a part of the laws of armed conflict still known as the Laws of The Hague. The Declarations covered a number of agree to proscribed activities in conflict, yet it was the Convention (II) Respecting the Laws and Customs of War on Land that had the greatest impact in 1899. In that convention's annexed regulations, the Parties agreed to rules for the conduct of land warfare that eventually have become a part of Customary International Law. In 1907 the Parties again met in the Hague and proceeded to consider several other aspects of the conduct of war on land and at sea. The fourth Convention, passed in 1907 reiterated much of what had appeared in the second Convention 1899, however the ideals of the Oxford Manual and the Brussels Project now received support in the introduction of enforcement principles. 157 Conv. 1907 IV, Art 3, Conv. IV Regs, Art 41, Roberts and Guelff, Documents on the Law of War, pp. 70 and 80. 158 Conv. IV Regs, Art 41, Roberts and Guelff, Documents on the Law of War, p. 80. 61 actions on prosecution.159 Brownlie notes that the commission attempted the imposition through its work ".. .of criminal responsibility on those persons who were the 'authors of war.'"160 The commission documented thirty categories of offences and recommended prosecution of those responsible for the atrocities.161 One of the more egregious acts that occurred during the First World War involved the 1915 massacre of hundreds of thousands of Armenians.162 In what was the first organized genocide of the twentieth century, the infamous action was carried out by a group of Turkish military officers known as the "Young Turks."163 From the moment the information came out about the situation, the British and Allied governments repeatedly declared their intention to prosecute those responsible. By the end of the war, Sultan Mehemet VI had pledged to bring the perpetrators to justice in Turkey, thus avoiding the surrender of Turkish nationals to a foreign jurisdiction. After some initial convictions in the 159 Report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penaltiesfor Violations of the Caws and Customs of War, Conference of Paris 1919, (1919) Pamphlet 32, Carnegie Endowment for International Peace, Division of International Law, reprinted (1920) in 1920 supplement, 14 American Journal of International Law, p. 95; Brownlie, International Caw and the Use of Force by States, p. 52; Green, The Contemporary Caw of Armed Conflict, pp. 289, 290. 160 Brownlie, International Caw and the Use of Force by States, p. 52. 161 Report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penaltiesfor Violations of the Caws and Customs of War, p. 95. 162 D. Lang, The Armenians: A people in Exile, (London: George Allen and Unwin, 1981), p. 37. The author estimates that by 1922, over 500,000 Armenians had perished direcdy or indirecdy from the Turkish actions; also see United States Official Documents on the Armenian genocide - compiled and introduced by Ara Sarafian, Watertown: Armenian Review, 1993. 163 On the issue of the tragedy that befell the Armenian nation and people, see, United States Official Documents on the Armenian genocide; Remembrance and Denial: the Case of the Armenian Genocide, R. G. Hovannisian ed., (Detroit: Wayne State University Press, cl998); and The Armenian Genocide: A Comprehensive Bibliography andCibraty Resource Guide, H. B. Vassilian ed., (Glendale, CA : Armenian Reference Books Co., 1992). 62 Turkish domestic courts, consequential social unrest in Turkey led to virtual abandonment of internal prosecutions. In 1921, Britain, too, dropped much of its policy on war crimes, believing reconciliation with the Turkish nationalists to be of greater importance.164 In 1923, through the signing of the Treaty of Lausanne, all those implicated in the Armenian genocide were granted amnesty.165 Despite the attempt to address "the Turkish issue," the matter of individual liability was considered and attempted at the end of World War I with war crimes prosecutions arising from the actions of Germany and her forces. Combatants on both sides of the conflict in World War I committed atrocities, but it was the victorious Allied powers that sought to try German soldiers, officers and even Kaiser Wilhelm II as war criminals.166 The Commission of Fifteen established to investigate the persons and causes of the outbreak of the war brought forth its recommendation that: .. .on the whole case, both the acts which brought about the war and those which accompanied its inception, particularly the violations of the neutrality of Belgium and Luxembourg, it would be right for the Peace Conference, in a matter so unprecedented, to adopt special measures, and even to create a special organ in order to deal as they deserve with the authors of such acts. It is desirable that for the future, penal sanctions should be provided for such grave outrages against the elementary principles of international law.167 164 J. F. Willis, Prologue to Nuremberg: the politics and diplomacy ofpunishing war criminals of the First World War (Westport: Greenwood Press, 1982). 165 Treaty of Peace Between the Allied and Associated Powers andTurkey (Treaty ofTausanne), 24 July 1923, 28 L.N.T.S. 11. 166 Y. Dinstein, War, Aggression and Self Defence, pi 12; Green, The Contemporary Taw of Armed Conflict, pp. 289, 290. 167 Green, The Contemporary Taw of Armed Conflict, p. 290. 63 On the basis of the work of the Commission of Fifteen, the Treaty of Versailles "indicted" the former Emperor of Germany to stand trial before a special tribunal,168 as Article 227 of the peace treaty expressed: The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused.... In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality.... The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial.169 Despite the commission's work and the declaration of the Treaty of Versailles, there was a marked lack of consensus by the international community on the issue of holding the Kaiser responsible in his individual capacity for his actions in bringing the world to a bloody and so costly a global conflict. The United States, despite its better-late-than-never participation in the war, opposed trying a head of state. On the other hand, Holland, where the Kaiser had taken refuge and sanctuary, refused to extradite him to the Allied powers. As a consequence of the international split on a war crimes trial and after many political machinations, the Kaiser was not brought to trial but rather was allowed to remain in exile in the Netherlands.170 168 Dinstein, War, Aggression and Self-Defence, p. 112; Green, The Contemporary Caw of Armed Conflict, pp. 35, 290, 291. 169 Brownlie, International Caw and the Use of Force by States, p. 53. 170 Dinstein, War, Aggression and Self-Defence, p. 112; Green, The Contemporary Caw of Armed Conflict, pp. 35, 290, 291; also see Brownlie, in, International Caw and the Use of Force by States, at p. 54, where he states the problem as: 64 Although prosecution against the Kaiser failed, the principal Allied and associated powers also sought trial "...before military tribunals [of] persons accused of having committed acts in violation of the laws and customs of war,"171 and required Germany to hand over any persons so accused. While Germany refused, it tried the other named accused before the Supreme Court of Germany.172 As Turkey had done, Germany managed to avoid having her nationals surrender themselves to the jurisdiction of a foreign or international tribunal. The trials, held in Leipzig, were generally considered unsatisfactory due to the limited number of convictions and the light punishments imposed on those found guilty.173 Of the 896 Germans accused of war crimes, six were convicted, and those six received what could be described as token sentences.174 While few trials were held and only relatively mild sentences were delivered, the "Difficulty was experienced by the Allied governments in finding the legal formula for the request to the Dutch government for extradition. The Dutch government refused to extradite the Kaiser and exchanges on the subject of his extradition and concerning a safe place of residence and internment continued for many months." Despite the frustrations and disappointment, Brownlie concluded, "thus the Kaiser was not brought to trial but in the legal developments of the years 1943 to 1946 Article 227 was to have some value as a precedent." 171 Treaty of Versailles Art. 228. 172 Green, The Contemporary Taw of Armed Conflict, p. 290; see also C. Mullins, The Leipzig Trials (London: Witherby, 1921); Willis, Prologue to Nuremberg. 173 The Leipzig trials have been soundly criticized as seriously flawed, focusing on specific events and failing to consider the greater issues on the conduct of hostilities. Green, The Contemporary Taw of Armed Conflict, pp. 290, 291; see also Mullins, The Teiprdg Trials; Willis, Prologue to Nuremberg. 174 Mullins, The Teip^ig Trials; R. Bierzanek, "War Crimes: History and Definition," from M. Cherif Bassiouni and V. Nanda, eds., A Treatise on International Criminal Taw (Springfield, 111.: Thomas, 1973), pp. 566-567; Green, The Contemporary Taw of Armed Conflict, pp. 290, 291; also see Willis, Prologue to Nuremberg; and M. C. Bassiouni, "Historical Survey: 1919-1998", in The Statute of the International Court: A Documentary History, (New York: Transnational Publishers, 1998). 65 Reichsgericht did lay down principles regarding the defence of superior orders that have formed the basis for the law as it stands today.175 During the years between the First and Second World Wars, several commissions were formed to study, draft and propose a permanent international criminal court that would be capable of adjudicating issues involving war crimes. In 1919, the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties recommended that an international tribunal be established to try those accused of violating the laws of civilized nations, humanity and moral conscience.176 A year later, however, the Legal Committee of the League of Nations, commenting on the creation of a permanent international tribunal, found there was insufficient agreement on an international criminal law foundation for the creation of a tribunal statute, and the attempt was abandoned by the League.177 It would take the atrocities of the Second World War before the concept of an international criminal tribunal would be raised again. With the world again at war in 1939, the matter of war crimes became a significant issue. During that war, it became known to the Allies that the 175 Green, The Contemporary Law of Armed Conflict, Ch. 18, Developments since 1977;J.W. Garner, International Law and the World War, (London: Longmans Greens, 1920), 477, n. 3; Dinstein, War, Aggression and Self-Defence, p. 112. 176 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Report Presented to the Preliminary Peace Conference, 29 March 1919, reprinted in Benjamin Ferencz,^4» International Criminal Court: A Step Toward World Peace, Vol. 1, Half a Century of Hope (London: Oceana, 1980). 177 Ferencz, An International Criminal Court, p. 38. 66 Germans had been and were still continuing to ill-treat, torture and, in many cases, execute captured Allied personnel. Similar acts of cruelty were perpetrated against resistance forces and civilian populations in the occupied countries. The actions taken by Germany and her allies in prosecuting the "Final Solution," the extermination of all Jews in Axis-controlled lands, presented particularly horrific examples of cruelty. Additionally, the Axis powers committed persecutions similar to those directed at the Jews against political opponents, Jehovah's Witnesses, gypsies, homosexuals and many of the medically and mentally unfit among the German population. Similar concerns were also being expressed with respect to the Japanese treatment of Allied prisoners and the civilian populations under their control. Representatives of the Allied powers met on the matter of prosecuting those responsible for committing or ordering such crimes. In 1942, the Allies established the Commission for the Investigation of War Crimes, which, in 1943, became the United Nations Commission for the Investigation of War Crimes.178 In the Moscow Declaration, the Allied leaders stated that their governments intended at the conclusion of the war to prosecute German and Japanese civilian and military leaders, regardless of positions or status, for their actions in instigating the hostilities and for their conduct during the armed conflict.179 178 History of the United Nations War Crimes Commission and the Development of the Laws of War, (London: Published on behalf of the United Nations War Crimes Commission by Her Majesty's Stationery Office, 1948). 179 Churchill, Roosevelt and Stalin joint declaration of Nov. 1,1942 (1943) 9 Department of State Bulletin (November 6,1943) at 310; Moscow Declaration 1943, UNWCC, History of the United Nations War Crimes Commission, 107. 67 In order to proceed with the prosecutions, an agreement was drafted in 1945 establishing an International Military Tribunal to try the "major" war criminals — those criminals whose offences were not geographically limited to a single location — for crimes against peace, for war crimes180 and for crimes against humanity.181 The legal principles established by establishment of and judgements arising from the Nuremberg Tribunal182 are now accepted as declaratory of the law on the subject.183 The Nuremberg War Crimes Tribunal and Tokyo War Crimes Tribunal, while having strong mandates, still required that the accused be brought into their jurisdictions. With Allied forces in control of Axis countries, the military was able to move to apprehend the accused criminals, and the first prosecutions commenced in 1945 at both the Nuremberg and Tokyo tribunals. It must be remembered that both were established by the "international community," insofar as that international community was represented by the victorious Allied forces, with the express purpose of prosecuting crimes committed within a specific geographic area and within a specific time frame. 180 Y. Dinstein, The Distinction Between War Crimes and Crimes Against Peace, taken from Yoram Dinstein and Mala Tabory, War Crimes in International Caw, (The Hague: Martinus Nijhoff, 1996), p. 1. 181 Schindler and Toman, The Caws of Armed Conflict, on The London Charter, p. 911; Green, The Contemporary Caw of Armed Conflict, p. 291. 182 HMSO, Cmd 6964 (1946); 41 Am. J. Int'l Law (1947), 172. 183 Schindler and Toman, Principles of International Caw Recognised in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 923; this principle was also affirmed by United Nations General Assembly Resolution 177(11) (1950); also see Green, The Contemporary Caw of Armed Conflict, p. 291. 68 The process was limited to prosecution of the major actors from Germany and Japan whom the Allied forces held responsible for the outbreak of the Second World War and for the commission of the resultant atrocities. Military commissions administered by the Allied powers were used from 1945 through 1951 to prosecute several thousand other lesser Japanese and German war criminals. At Nuremberg, twenty-two German accused were tried and nineteen convicted, with twelve being sentenced to death. The Tokyo Tribunal prosecuted twenty-five Japanese suspects, all of whom were found guilty. Seven were given capital sentences. At both tribunals, those not sentenced to death received sentences of varying prison terms.184 While the Allies were determined not to allow these criminals to escape prosecution, as had happened in 1918, there was no suggestion that these tribunals should be of a permanent nature or that they should they address crimes committed outside the actual period of global conflict. However, unlike the prosecutions attempted in 1918, these accused were charged with crimes against international humanitarian law, specifically: • Crimes against peace • War crimes • Crimes against humanity185 184 L. Friedman, ed., The Taws of War. A Documentary History (1972) p. 779; Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East, 1945-1951 (Austin: University of Texas Press, 1979) p. 23; also see L. Richard, The Yamashitaprecedent: war crimes and command responsibility, (Wilmington: Scholarly Resources, 1982). 185 Allen Lane, Nuremberg: A Nation on Trial (London: Penguin Books, 1979) and Ferencz,^4« International Criminal Court. 69 This departure from the earlier prosecutions, which had been conducted solely on the basis of "war crimes," was an indication of the direction of things to come. C. War Crimes: Contemporary Developments and Responses Despite the end of the Cold War and the lessons of the first half of the twentieth century, the decade of the 1990s saw the rise of ethnic, political and religious tensions throughout the world. Several of these situations, particularly the ethnic conflicts in the former Yugoslavia186 and in Rwanda,187 have resulted in shocking atrocities that exemplify the bloodiest of human behaviours. Members of the public, reacting in revulsion to scenes of horror broadcast daily into their homes, formed a growing movement for establishment of a process for prosecution of those implicated in the breaching of the most basic human rights. The public wanted to see the perpetrators tried by the international community, before all the world and according to international law. In 1991, the United Nations began the process of investigating alleged offences in Yugoslavia for possible prosecution of the offenders under the charges of war crimes, crimes against humanity and genocide. As a result of the investigations conducted, the Security Council of the UN in resolution 808 (1993) of February 1993 decided that "an international tribunal shall be established for the prosecution of persons responsible for serious violations of international 186 See Appendix 1. 187 See Appendix 2. 70 humanitarian law committed in the territory of the former Yugoslavia since 2991 "188 Humanitarian law in this context was defined as the "principles and rules which limit recourse to violence during a period of armed conflict," directed toward "protecting those persons which are not or are no longer directly engaged in hostilities — the wounded, shipwrecked, prisoners of war and civilians" to "limit the effects of violence in combat to attain the objectives of the conflict."189 On the passing of this historic document, the Secretary-General of the United Nations, Boutros Boutros-Ghali, wrote in the 18 November 1993 issue of Point of View that "the Security Council wanted to show as clearly as possible that henceforth, war crimes and the systematic breach of human rights constitute genuine threats to peace and must be treated as such."190 On 25 May 1993, resolution 827 (1993) of the Security Council, acting under Chapter VII of the UN Charter and in its role as the main restraining body of the UN, which in turn represents the international community, instituted the International Criminal Tribunal Yugoslavia (ICTY), to be situated in The Hague.191 188 Virginia Morris and Michael P. Scharf, An Insider's Guide to the Criminal Tribunalfor the Former Yugoslavia, Vol. 2, p. 4 (New York: Transnational, 1995). 189 Taken from the Information Sheet No. 13, International Humanitarian Taw and Rights of Man, Geneva, United Nations, May 1992. 190 Karine Lescure and Florence Trintignac, International justice for Former Yugoslavia: The Working of the International Criminal Tribunal of the Hague (The Hague: Kluwer Law International, 1996), p. 35. 191 Morris and Scharf, An Insider's Guide to the Criminal Tribunalfor the Former Yugoslavia, p. 177; see Appendix 3, Statutes of the ICTY. 71 Pierre Truche, chief prosecutor of the Court of Appeal and chairman of the committee established to create the international tribunal, said in an interview: Even if this tribunal only tries cases involving the former Yugoslavia, it indubitably represents a major advance in international law. This discussion has preoccupied jurists throughout the twentieth century. After the 1914-1918 War, several attempts were made to create an international tribunal. Then there was the Nuremberg Tribunal and the Tokyo Tribunal. Today, we have reached a new stage.192 In the spring of 1994, the Hutus of Rwanda massacred more than half a million Tutsis within one hundred days. When this crisis emerged, despite noble sentiments expressed beforehand, there was little initial support for the creation of another tribunal. The Rwandan Prime Minister-Designate challenged the United Nations Security Council's integrity when he asked: "Is it because we're Africans that a [similar] court has not been set up?"193 It is a sad commentary on international political realities that the systematic and brutal annihilation of hundreds of thousands of African men, women and children failed to generate sufficient impetus, in and of itself, for the immediate creation of an international criminal court for Rwanda. The appalling failure of the international community — in particular, the UN's peacekeeping operations — to respond at the outset of the unrest should have sensitised the world to the needs of this devastated country. It was only 192 From an interview with Le Point 27, February 1993, Number 1067. 193 Nelson Graves, "Premier-Designate Compares Rwanda to Nazi Genocide," Reuters World Service (May 26, 1994). 72 after considerable international pressure and with accusations of Euro-centricity echoing through the chamber that the Security Council felt compelled to establish the Rwandan Court. On 8 November 1994, the Security Council, again acting under Chapter VII of the UN Charter through resolution 955 (1994), established the International Criminal Tribunal Rwanda (ICTR), based in Arusha, Tanzania.194 Both courts have independent Trial Chambers but share the use of a joint Appeal Chamber. The Security Council also arrogated primacy of the tribunals over national courts, as the tribunals can request that a national judicial body 194 See Appendix 4. The ICTR expresses its views on the value of war crimes prosecutions in its statement entitled Relevance for Peace and justice (http://www.ictr.org/default.htm), wherein the Tribunal states: NEVER AGAIN. African countries must absorb the lessons of the Rwanda genocide in order to avoid a repetition of the ultimate crime" on the continent. Weak institutions in many African countries have given rise to a culture of impunity, especially under dictatorships that will do anything to cling to power. EVOLUTION OF POLITICAL AND LEGAL ACCOUNTABILITY. It is usually individuals in power or authority that can in practice commit genocide and crimes against humanity. This is the first time high-ranking individuals have been called to account before an international court of law for massive violations of human rights in Africa. The Tribunal's work sends a strong message to Africa's leaders and warlords. By delivering the first-ever verdicts in relation to genocide by an international court, the ICTR is providing an example to be followed in other parts of the world where these kinds of crimes have also been committed. COOPERATION OF AFRICAN COUNTRIES. The accused persons in the custody of the Tribunal in Arusha have been arrested and transferred from more than 15 countries. Several countries in Africa have increasingly cooperated with the Tribunal in the discharge of its mandate. There appears to have been a progressive realization in these countries that they cannot allow fugitives from international justice in their domain. ENFORCEMENT OF PRISON SENTENCES. The Tribunal prefers, to the extent possible, enforcement of its sentences in Africa, for socio-cultural reasons. This will also have greater deterrent effect in the continent. By providing jails for the Tribunal's genocide convicts, African countries would be demonstrating a serious commitment to the rule of law. On 12 February 1999, the Republic of Mali became the first country to sign an agreement with the ICTR to provide prison facilities for the enforcement of the Tribunal's sentences. A similar agreement was signed with Benin on 26 August 1999. Negotiations with other African countries are nearing conclusion. POLITICAL, MORAL AND MATERIAL SUPPORT by African countries for the court is essential. Much depends upon the ultimate success or failure of the ICTR because it is dealing with crimes committed in Africa, with more than 500,000 victims. African countries and Governments should make the point that the lives of these victims are as important as those of victims of mass atrocities everywhere by giving a higher profile to the work of the International Tribunal for Rwanda. The Tribunal's work is providing important precedents for the future International Criminal Court and various national jurisdictions. It is making a fundamental contribution to international peace and justice in the twenty-first century. 73 defer to its own competence. Additionally, the tribunals each have their own critically important Office of the Prosecutor, an office divided into four central areas: prosecution section; investigation section; special advisory section; and information and records. Additionally, the ICTY and ICTR were structured to prevent trials in absentia. Both courts require the presence of the accused before the court in order to commence a prosecution. While the two tribunals share almost identical and interrelated structural frameworks, they were instituted under very different circumstances. In the case of Yugoslavia, combat was still underway when the tribunal was established. In fact, given the ongoing crises in many parts of the former Yugoslavia, the ICTY may be responsible for prosecutions arising from conflicts there for some time to come. The ICTR, however, was begun after conflict had terminated, when some sense of order was being restored in the country. Despite the circumstantial differences in their founding, the instituting of these tribunals by the UN has changed the nature of war crimes prosecutions. In the World War I situation, the victors forced195 the vanquished to try their own nationals, while after World War II, the Allied governments themselves tried the defeated Axis leaders. The ICTY and ICTR, however, have been established not by a victorious force but by the international community on behalf of the 195 Although I must concede that it could be stated as coerced the defeated forces into a generally unsatisfactory compromise that neither saw the guilty punished nor the matters resolved. 74 international community.196 Further, the founding of the ICTY and the ICTR provided sufficient impetus to advance the long-striven-for efforts to establish a permanent International Criminal Court (ICC). The idea of a permanent international criminal tribunal had first been raised in the early part of the twentieth century and had garnered considerable interest after the success of the Nuremberg and Tokyo prosecutions, yet it was not until the international community found itself in the position of needing to establish the ICTY and the ICTR that the proposal for the International Criminal Court achieved the necessary support to bring it into being. The new permanent tribunal has jurisdiction over a broader range of offences than the two temporary tribunals. The offences covered are: • The crime of genocide • Crimes against humanity • War crimes • The crime of aggression While this list developed and modified the previous categories of crimes found at the Nuremberg Tribunal, the definition of many of the crimes has expanded the types of offences that will be brought under the aforementioned headings. On 17 July 1998, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court created 196 See Appendices 3 and 4 for the charter for both the ICTY and ICTR as well as the countries which have supported these tribunals. It can be argued that many countries have failed to adequately support the ICTY and ICTR through a lack of national will to expel those indicted by international warrants and the various NATO and UN countries with troops in place and capable of ensure the apprehension of these wanted suspects. Nevertheless, the ICTY and ICTR are both the creation of the international will as embodied in the United Nations and therefore, for better or worse, the courts exist from the international will and serve, within their capacity, the interests and needs of the international community. 75 the 1998 Rome Statute of the International Criminal Court, which resulted in the establishment of the judicial body.197 In this court, which is a related but non-UN body based in The Hague, participation by states is on a voluntary basis upon their ratification of the final convention. The fact that this court has been established through international convention198 and not through the mandate or authority of a UN body has several ramifications, and one of the most difficult lies in the area of gaining custody over or compelling the attendance of the accused at trial. Like the ICTY and ICTR, the ICC has Trial and Appeal Chambers as well as an Office of the Prosecutor. Also, in keeping with the rules established at the two temporary tribunals, no accused will be tried in absentia, so the court must have the indicted suspect in custody prior to the commencement of proceedings. The Prosecutor for the ICC is charged with the same basic responsibilities as the prosecutors in the temporary tribunals, but that court's authority to compel cooperation in arresting the accused is very different than that of either the ICTY or ICTR.199 The prosecutors for the ICTY and ICTR, as a result of the tribunals' Security Council parentage, have the authority to forcibly compel the arrest of an 197 1998 Rome Statute of the International Criminal Court, A/CONF.l 83/9 July 17 1998. See Appendix 5. 198 The court has been established by convention however, art 12 of the Rome Statute allows for declaration on a case by case basis. See Appendix 5. 199 The Rome Statute does mandate in arts 59 and 89 that a person in he custody of a State, must be turned over by that State authority to the ICC for trial. However, this falls short of a mechanism that will compel States to act and can not address non-State actors from meeting any enforcement obligations. 76 accused up to and including the application of military force,200 authority that can be given under the direction and authority of the Security Council acting under Chapter VII. As a cooperative body founded by international convention, however, the ICC has none of the inherent power found in the other two courts 201 Additionally and in contrast to any domestic criminal courts, none of the tribunals has an enforcement arm to search for, detain and arrest an accused, and the lack of such a mechanism to effect an arrest has been a major problem for both the ICTY and ICTR. Even with the "large stick" of the Security Council, both tribunals have had little success in getting the accused into their jurisdiction and control. Any commitment to justice that does not include such instruments of compulsion is a hollow commitment. There can be no justice without effective and consistent enforcement mechanisms for compelling the attendance of a reluctant or fugitive accused before the court.202 It is the issue of interdicting and 200 The statutory authority and legal justifications for the arrest and detention of indicted suspects is discussed below. 201 The possibility does exist that the United Nations Security Council may refer a matter to the ICC, but the reality of such an event happening and the efficacy of the system are yet to be seen. 202 It is interesting to note the views of John Keegan OBE, said to be Britain's foremost military historian today, on a separate but parallel issue. For many years, Keegan was the Senior Lecturer in Military History at the Royal Military Academy, Sandhurst, and has been a Fellow at Princeton University and Delmas Professor of History at Vassar. A Fellow of the Royal Society of Literature, he is the author of many best-selling academic historical books, including The First World War, The Battle for History, Warpaths, A History of Warfare (awarded the Duff Cooper Prize), The Second World War, The Mask of Command, Six Armies in Normandy and The Face of Battle. In his new work The Iraq War, (Toronto: Key Porter Books, 2004), Keegan reviews the efficacy of the European Union, an "Olympian body," enforcing laws and treaties with respect to various nations without the governance mechanisms to back-up or enforce the decisions of this supranational entity. He states at p. 109: "The workings of the Union do seem to lend credence to the idea in which Olympians most want to trust: that laws will be obeyed by their mere promulgation and that treaties can be self-enforcing. The idea is, of course illusory. 'Covenants without swords are but words' judged the supreme realist Thomas Hobbes and nothing that has happened since the seventeenth century gives reason to expect 77 arresting the non-voluntary accused that will be the focus of the discussions below. otherwise. Obedience to law by the mere promulgation of the law, the very argument that Keegan dismisses above, is at the heart of the problem with the enforceability of any International Tribunal's arrest warrant. The mere fact that a warrant or indictment has been issued by a judicial body is not, I suggest, sufficient to ensure that the indictee is brought before the jurisdiction of the issuing Tribunal. Indictments and warrants 'without swords' are also nothing but words and good intentions, paving a tortured path to an enforcement hell." 78 CHAPTER 4 Nabbing the Devil A. The Game Is Afoot: Gaining Jurisdiction No amount of law, however well written, is likely to alter the behavior of a malefactor where the deterrent effect of certain prosecution is lacking. Lt. Col. Hayes Parks "The Protection of Civilians" Israeli Yearbook on Human Rights, 1997 Moral imperatives and historical precedents may support the prosecution of indicted suspects, but due to the structure of the three international tribunals, no prosecution can take place without the apprehension of the accused. One of the most important practical issues raised when questioning the ability of the courts to fulfil their mandates, therefore, is their responsibility and capacity for apprehension of indicted suspects, (i) ICTY and ICTR The Security Council, when establishing the ICTY and the ICTR, placed responsibility for such arrests on individual states. Article 29 of the Statute of the ICTY and Article 28 of the Statute of the ICTR both charge "States" to "comply without undue delay with any request for assistance or an order issued by the Trial Chamber." This is to include requests or orders for the "arrest or detention 79 of persons" and for the "surrender or the transfer of the accused" to the jurisdiction and control of the tribunals.203 Additionally, in the founding document of the ICTY, resolution 827 (1993), the Security Council ordered all states to co-operate fully with the Tribunal. Section 4 of the document declares that the Security Council: Decides that all States shall co-operate fully with the International Tribunal and its organs in accordance with the present resolution and the Statutes of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute. Rule 40 in both the ICTY and ICTR statutes gives the prosecutor the power to request the provisional arrest of a suspect before a formal indictment has been prepared by the tribunals. In addition, prosecutors can request that states take "all necessary measures to prevent the escape of a suspect or an accused, injury to or intimidation of a victim or witness or the destruction of evidence."204 If a state fails to execute an arrest warrant, the tribunals are authorized to inform the Security Council of the breach, and the Council can take further action.205 When a warrant has not been executed as requested, a judge of the 203 Article 29, Statute of the International Criminal Tribunal for the Former Yugoslavia; Article 28, Statute of the International Criminal Tribunal for Rwanda. See appendices 3 and 4 respectively. 204 Statute of the International Criminal Tribunal for the Former Yugoslavia, Rule 40(i) and Rule 40 (iii); Statute of the International Criminal Tribunal for Rwanda, Rule 40(i) and Rule 40(iii). See appendices 3 and 4 respectively. 205Rule 59 of the statutes for the ICTY and ICTR. See appendices 3 and 4 respectively. Trial Chamber of the tribunal is able to issue an international arrest warrant for the suspect, thus effectively making the accused an enemy of mankind and an international pariah.206 In 1971, the International Court of Justice (ICJ)207 held that all states are under an erga omnes obligation to follow the authority and direction of the Security Council as "all states can be held to have a legal interest" in the detention and surrender of such individuals.208 (ii) ICC The authority for the International Criminal Court is found in the Rome Statute.209 The ICC, unlike the other tribunals, is able to exercise its jurisdiction 206Rule 61 of the statutes for the ICTY and ICTR. See appendices 3 and 4 respectively. 207 The International Court of Justice (IJC), seated at the Palais de la Paix, in The Hague, Netherlands, is the principal judicial organ of the United Nations. The ICJ began sitting in 1946, replacing the Permanent Court of International Justice that had functioned in the Palais de la Paix since 1922. Constituted under a statute similar in nature to that of its predecessor, the IJC is an integral element of the Charter of the United Nations. The ICJ bench is composed of fifteen independent magistrates, not to include more than one judge of any nationality, each elected to nine-year terms by the United Nations General As