Former Yugoslav president Slobodan Milosevic, flanked by UN security guards, before the war crimes tribunal in The Hague, Aug. 30, 2001. (AP Photo/ POOL/Peter Dejong)
INDEPTH: WAR CRIMES|
CBC News Online | Updated March 14, 2006
The UN tribunals prosecuting accused war criminals from Rwanda, the former Yugoslavia, Sierra Leone, East Timor and Cambodia made history - and blazed a trail.
They handed down the world's first-ever convictions for genocide. In May, 1999 they made history by indicting a sitting head of state on war crimes charges. That leader was Slobodan Milosevic.
Slobodan Milosevic, Jan. 11, 2001 (AP Photo)
These are seen as models for the permanent war crimes court – the International Criminal Court - that was agreed to in principle in Rome, on July 17,1999.
The agreement to establish an International Criminal Court was approved by 120 members of the UN General Assembly, including Canada, whose officials helped draft the final treaty. Seven countries, including the United States, voted against the treaty, and 21 abstained.
The court sits in The Hague, Netherlands, pending a permanent move to the Alexanderkazerne. The permanent premises are hoped to be ready for occupation between 2007 and 2009.
Philippe Kirsch – formerly Canada's ambassador to Sweden – was elected as a judge of the court in Feb. 2003. He became the court's first president that year and on March 11, 2006, was re-elected to a second three-year term.
The idea of a world court with the power to prosecute cases of genocide came out of the Nuremberg trials of accused Nazi war criminals after the Second World War. (The Nuremberg defendants were charged with murder and extermination - their trials predated the 1948 UN Convention which established the crime of genocide.)
Any chance of an international war crimes court being established was unthinkable during the Cold War. The 1990s horrors in Rwanda and the former Yugoslavia helped revive it.
Until the permanent War Crimes court was established, the job of punishing war criminals was left to special UN tribunals, established in the mid-1990s and initially overseen by Louise Arbour, a Canadian judge. She was later appointed to the Supre Court of Canada, before accepting the job as UN High Commissioner for Human Rights.
Arbour told an international law conference in September 1999 that the ICC was "the most imaginative attempt to date to alleviate the unnecessary suffering that too often accompanies the inevitable mayhem caused by armed conflict."
In the years since the Second World War, the combination of trials and the various international treaties have given commanders and superiors a number of obligations during times of conflict. They include:
The duty to prevent
A commander has an absolute duty to prevent crimes. A commander may be guilty of negligence if he realizes that a lack of training may mean that soldiers under his command could commit crimes. In the case of the massacres of Palestinians in Beirut refugee camps, an Israeli commission of inquiry found the Israeli Defence Force commanders failed in their duty as occupiers to prevent a massacre.
The duty to control
A commander has the duty to control and discipline his forces to prevent the commission of crimes.
The duty to act
A commander must take action when a crime is discovered. There are four choices:
The duty to punish
Take no action.
- Take administrative action against the perpetrator.
- Administer "non-judicial" punishment.
- Trial by court martial.
The commander has a duty to punish those found guilty of committing crimes.
Politicians who either order or encourage war crimes or crimes against humanity are considered as responsible as those who actually carry them out.
When the Allies prosecuted the Germans at Nuremberg, they successfully based their case, in part, on the idea that Adolf Hitler and the key Nazi leaders were a bunch of gangsters. So they used conspiracy law developed in the 1930s by the United States for use against bootleggers and drug dealers.
At Tokyo, this theory did not work, because, unlike the core of Nazis around Hitler, the Japanese defendants had held different ministerial and military roles at different times. The prosecutors could not prove an overall conspiracy. So the Tokyo tribunal instead applied a strict interpretation of the parliamentary concept of ministerial responsibility.
Under the Tokyo precedent, in theory, politicians can be prosecuted for crimes carried out in their area of responsibility or if they were aware of crimes and did nothing to stop them.
In reality, only those defeated in war, such as the leaders of Germany and Japan as well as Slobodan Milosevic in the former Yugoslavia, have ever faced international tribunals – one reason that critics charge that war crimes trials are "victors' justice."
However, 15 years after his death, a report surfaced that media tycoon Robert Maxwell was being investigated for a war crime in the weeks before his mysterious drowning. Britain's War Crimes Act was enacted in 1991, six months before Spanish fishermen found Maxwell's body floating in the Atlantic, about 25 kilometres from his yacht. London Police released information in March 2006 indicating that someone had filed a complaint under act, alleging Maxwell shot and killed an unarmed civilian in Germany in April 1945. Maxwell was a captain in the British army during the war.