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Human history is littered with atrocities and genocides committed during war and for centuries civilised nations have struggled to deal with this kind of violence. International criminal law, which emerged during the 20th century, was one attempt to stop such atrocities or at least to bring the perpetrators to justice. Rear Vision takes a look at the historical roots of international criminal law and at the institutions charged with its administration. TRANSCRIPT: Annabelle Quince: Hello this is Rear Vision on ABC Radio National. I´m Annabelle Quince, and this week the story of international criminal law. Peter Cave: The power of international law is being tested in Sudan, with the possible arrest of President Omur al Bashir. Prosecutors at the International Criminal Court want judges to approve an arrest warrant over the President´s role in the death of a quarter of a million people in Darfur. Mark Colvin: The Bosnian Serb Radovan Karadzic is tonight in a detention unit of the International Criminal Tribunal for the former Yugoslavia, in The Hague. Karadzic faces trial over the 3-1/2 year siege of Sarajevo and the massacre in 1995 of about 8,000 Bosnian Muslims at Szrebenitza, the worst atrocity in Europe since World War II. Annabelle Quince: History is littered with atrocities and genocides committed in the name of war. For centuries, civilised nations have struggled to deal with this kind of violence. International criminal law, which emerged during the 20th century out of treaties like the Geneva Conventions, was one attempt to stop this kind of violence, or at least to bring the perpetrators to justice. The arrest last month of Radovan Karadzic and the indictment of the Sudanese President for War Crimes, demonstrates the growing reach and power of international criminal law. Professor Bassiouni: Historically there has always been a body of law called war crimes, the laws and customs of war. Annabelle Quince: Professor Bassiouni is the distinguished research Professor of Law at de Paul University, and a former Chairman of the Security Council Commission, which investigated war crimes in the former Yugoslavia. Professor Bassiouni: And these have emerged from historic practices, going back to the fourth and fifth century BC in different civilisations, and there was a great deal of development within each civilisation about not killing people who, that is the injured, the sick, the elderly, women and children, it developed into including protection against destruction of cultural property and religious property, so the body of law, if you will, emerged from different civilisations, and for the first time in 1899 the then major powers of the world met in The Hague and developed the first Convention, codifying the customs of war. This was then embodied in the new convention of 1907, which is still the foundation of what is called customary law of armed conflict, which contains many of these principles, that then found a way in the Geneva Conventions of 1949 and the two protocols of ´77. In addition to that, after World War II, we saw the development of extensions of the notion or war crimes, such as crimes against humanity, but we saw the development of a convention against genocide in 1948 based on the experiences of World War II, and subsequent to that there have been a number of treaties on international crimes. So there are actually almost 30 categories of international crimes that have developed in the last 100 years. Annabelle Quince: The Nuremberg trials after World War II are the best-known international criminal trials of the 20th century, but there were a number of trials held after World War I. Gary Bass is Associate Professor of Politics and International Affairs at Princeton University. Gary Bass: There were also very big efforts at international justice held after the first World War, that there was an attempt to put the German Emperor, Kaiser Wilhelm II on trial as a kind of war criminal, there were attempts to have war crimes trials for a whole bunch of Germans, but there were also trials that were actually held in the Ottoman Empire for Turkish officials for what today we would call the Armenian genocide. These things wind up falling apart so they´re not as well remembered. Annabelle Quince: So why did those trials fall apart? What happened then that they didn´t take off like the Nuremberg Trials did? Gary Bass: The failure of the attempts to put German war criminals on trial had to do first of all with the difficulty that the allies just did not have Kaiser Wilhelm II in their custody; he had fled into Holland, and the allies were sure that Holland would turn him over and allow them to put him on trial. But Holland actually refused, Holland was sitting right there next-door to Germany and were terrified of antagonising Germany and refused to do that, so Wilhelm II wound up living the rest of his life in exile in Holland. But there was also enormous resentment of these allied calls for war crimes trials among Germans, and not just among nationalists and right-wingers and Nazis, but also among the left-wing, that they were Social Democrats who were very upset about this demand that people who they saw as national heroes would be put on trial in front of British or French or Belgian judges, that this was sort of an affront to German dignity, they thought of people Field Marshal Hindenberg as a national hero, not somebody who deserved to be put on trial as a war criminal. So there was all this nationalist backlash within the Weimar Republic, against the idea of Allied war crimes trials. And that helped to undermine the idea that as the Weimar Republic got more and more shaky, the Allies said, `Well look, let´s just put a small number of German accused war criminals on trial.´ There´s a small series of trials which most people see as kind of a joke, and that´s pretty much the end of it. Annabelle Quince: In 1945 as World War II was coming to an end, the Allies signed a charter in London that established the Nuremberg trials. Bruce Broomhall is Professor of Law at the University of Quebec in Canada. Bruce Broomhall: The London Charter that set up the Nuremberg tribunal was adopted by the allies in London on 8th August, 1945. What was the 8th August 1945? On the one hand it was the day on which the Americans deposited their Instrument of Ratification binding them to the United Nations Charter, so the world was finished with the war, they were setting up the UN to preserve international peace and security, and in adopting the UN Charter governments were saying, `We will not use war as an instrument of our foreign policy any more. We accept that war is prohibited.´ So the UN on the very day that the Nuremberg Charter was issued, the US accepted the UN Charter; that´s kind of symbolic and interesting. But at the same time, 8th August, 1945, fell two days after the atomic bombing of Hiroshima and one day before the atomic bombing of Nagasaki. So the United States, even as it was accepting these norms that in principle should be binding it to a civilised standard of conduct was also taking on the mantle of defender of the free world with all of the horrible consequences and amoral power politics that that involved. So right there, in those few days in August 1945, you can see on the one hand the terrible things that would be done in the name of preserving freedom and so forth, and on the other hand the affirmation of this law that has come down to us in the Nuremberg principles. Man: Attention, Tribunal! Justice Robert Jackson (Chief United States prosecutor at the Nuremberg Trials): The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating that civilisation cannot tolerate their being ignored. Gary Bass: There´s not a lot of allied enthusiasm at least in the government, for the idea of trials. There is an awful lot of enthusiasm for the idea of punishing Germans, and punishing Japanese. But the idea of punishing them through a trial is very controversial. The Soviet just want to shoot Stalin said, between 50,000 and 100,000 Germans, and given that that was what he was prepared to say to Churchill and FDR, `God knows what the actual number would have been.´ But Churchill, who´s been burned with war crimes trials from World War I, Churchill thinks that the best thing to do is for the allies to shoot between 50 and 100 senior German leaders and the United States, under Franklin Roosevelt, also initially decides that the best thing to do is to shoot a non-trivial number of German war criminals, the number they´re kicking around over 2,000 would be shot summarily without any kind of trial. It´s only after a big fight within the Roosevelt Administration that people in Washington decide that war crimes trials are the way to go, and they kind of dragged the British and the Soviets along with that. So it´s not quite right to say that there was this great enthusiasm for war crimes trials after World War II, which is how the human rights movement tends to remember it today, that there was an incredible amount of vindictiveness, an incredible amount of rage among politicians and among the public in the countries that had been fighting World War II. In fact what´s impressive is that despite all of that vindictiveness, that in the end, law was allowed to be the way in which punishment was dealt out. Justice Robert Jackson (Chief United States prosecutor at the Nuremberg Trials): This inquest represents the practical efforts of four of the most mighty of nations to utilise international law to meet the greatest menace of our times. Gary Bass: You have judges from four countries, the United States, Britain, France and from the Soviet Union, and that´s the really embarrassing part is having a Soviet judge on the bench. There is no tradition of judicial independence in Stalin´s Soviet Union, the Soviet judge any time a complicated legal question comes his way, then the Soviet judge will say, `I´ve got to call Moscow and get my political instructions´. So there´s a lot of fights among the judges, unlike the present-day International Criminal Court or the War Crimes Tribunals that the UN set up for the former Yugoslavia or Rwanda. These are really the victors of the war, that you have the Americans, the Brits, the Soviets, sitting in judgment at their defeated German enemies, and that´s something that present-day international lawyers think controversial. I´m not sure exactly what the alternative was in 1945. Professor Bassiouni: Shortly after Nuremberg and Tokyo, there was an effort to establish a permanent International Criminal Court. But by then, the Cold War had set in, and that Cold War lasted until 1989, so it was impossible within the climate of a Cold War to establish an impartial tribunal that both opposing sides would accept. By the time the United Nations started considering the establishment of the permanent International Criminal Court, that was in 1994 and by then the United States had become the only major power in the world, and I think that the reluctance of the United States was that it simply wanted to control things, and it was not ready, it is still not ready, to accept an impartial court to which its own leaders would be subject to as would the case of others. Annabelle Quince: You´re with Rear Vision on ABC Radio National, Radio Australia and the web. I´m Annabelle Quince, and today we´re taking a look at the historical roots of International Criminal Law. In the post-Cold War decade of the `90s, the UN Security Council set up two temporary tribunals to deal with war crimes. Newsreader: A new type of notoriety today for the old Yugoslavia. The world has served notice that war atrocities there will not go unpunished. For the first time in its history the UN has voted to set up a Nuremberg-style War Crimes Tribunal. Reporter: Radovan Karadzic is himself one who it´s been suggested might stand trial. Another political figure is the Serbian President, Slobodan Milosovic. Gary Bass: As for the creation of the ex-Yugoslavia Tribunal, the first thing that really makes it possible is the collapse of the Soviet Union. The Cold War deadlock that the UN had experienced was no longer there, that the Russians were prepared even though this was a War Crimes Tribunal that was going to put a lot of Serbs on trial, Serbia being sort of a traditional client of Russia, the Russians decided they weren´t going to make a big fuss about that. The second thing is that there is a really, really terrible war between Serbia and Croatia in 1991 and then in Bosnia in 1992. and there are particularly horrible images coming from Bosnia in the summer of 1992 where Serb nationalists within Bosnia set up concentration camps, and there is video footage of this and it´s a huge shock to a whole lot of people. It looks, and I don´t mean at all to equate what happened in Bosnia with the Holocaust, but there is something about the sort of visual of these emaciated Bosnian prisoners standing behind barbed wire that just sends a shock through Western public opinion. And there´s real pressure being put on President Bill Clinton to do something about this. Clinton, when he was campaigning for President, said that as a Democrat in the White House he´d be much more concerned with human rights, he specifically talked about Bosnia. So Clinton is under all this pressure to actually militarily intervene in Bosnia. That´s something that he won´t do for 3-1/2 more years, but in order to be seen to be doing something to satisfy public opinion, the United States and the Europeans think, Well, you know, we could talk about having a War Crimes Tribunal. That´s something that Germany is very keen on, and it provides some symbolic statement of condemnation of what´s happening to Bosnia. Newsreader: For the first time today, one of the alleged masterminds of the carnage in Rwanda will go on trial. He´s one of more than 80,000 people currently crammed into Rwandan prisons, awaiting trial on genocide charges. Gary Bass: I mean the first thing that the Yugoslavia and Rwanda Tribunals have in common is that they´re both set up as a lesser step to actually preventing atrocities, that the genocide in Rwanda goes on without any significant Western intervention to stop it, and therefore the creation of the War Crimes Tribunal is again a bit of a token gesture to say, `Well we failed to stop the genocide; we failed to stop it when 800,000 Rwandans were murdered. We didn´t do anything about that, but look, we feel bad, we´re creating a War Crimes Tribunal.´ Bruce Broomhall: They´re focused on a particular time and a particular place and this opens them up to criticisms, right? The Serb Republic and Bosnia and Serbia itself, the Yugoslav Tribunal is a one-sided affair vindictively poised to hold them to account while letting others go etc. And like Nuremberg, that´s the price you pay for setting up an ad hoc tribunal with a limited geographical and temporal jurisdiction. On the other hand, they´re much, much better than Nuremberg. For one thing, they´re not simply set up by the countries that were involved in the war directly, and they have judges who were elected by the United Nations General Assembly and Security Council so there´s a big difference in terms of independence. At Nuremberg it was just prosecutors named by the allies, the victorious allies who stood in judgment over the war criminals, whereas with the Yugoslav tribunal and the Rwanda tribunal you´re talking about a much more professional set of affairs, professional judges relatively independently elected, subject to of course the UN system of dividing things up by region and all the power politics and the rest. But it was a quantitatively leap forward in terms of independence. At the same time, the ICTY and the ICTR have both been criticised for some would say being too slow, the expense of the trials, the millions of pages of documents that go into them, and so on, but again, I would tend to defend them on that front saying that that´s what you want an international tribunal for. National courts can really be overwhelmed by that sort of thing, but the ICTY and the ICTR could adopt rules that were specially tailored to that kind of complex case where you have hundreds of witnesses and entire archives being trucked in for the trials, and so forth. Annabelle Quince: So have the two tribunals been a success? Bruce Broomhall: Yes, well it depends who you ask. People still have very different - it depends on the consequences you draw from it. I mean obviously some people will criticise the prosecutor of the Yugoslav Tribunal for not having laid charges against NATO during the bombing of Kosovo, there were complaints of war crimes brought against NATO in that campaign. And the prosecutor of the Yugoslav Tribunal said `We´ll look into it´, she did, and she came back and said, `It´s fine, there´s nothing here for a tribunal like ours to prosecute´. And that´s been heavily criticised, that decision. At the same time, people talk about the dependency of the Yugoslav prosecutor on evidence provided by the United States and Britain in particular, states with highly developed intelligence apparatuses who had satellite surveillance for example, and other forms of surveillance that allowed arrests to be made of key suspects, or provided other forms of evidence. So there is a kind of structural bias built into the international system because of the unequal power of certain countries. And I think that´s undeniable. So that´s on the side of Should we prosecute everybody? In the ideal world we have a full Rule of Law which means that major powers are being to account as well. Yes, undoubtedly and we should be moving in that direction. But do we draw from that the consequence of nobody should be prosecuted until we have full equality? Well, I think that´s going too far. I mean it may well be that in our domestic systems that the justice system works in perfectly, that they pick more on those who are more vulnerable than on those who are more privileged and more protected by respectability and so on. That´s a problem in every justice system; it doesn´t mean that you let the guilty all go free equally. So I think there´s a - how can I say? - there´s a logical flaw there; there´s no question, we all know since 9/11 that there´s a lot to investigate in terms of the US conduct of this war against terror in terms of international crimes and torture and so on. But the fact that those crimes are very hard to prosecute doesn´t mean that others who commit similar crimes should go free. Newsreader: The agreement to set up the world´s first permanent War Crimes Tribunal was greeted with cheers, and from some delegates, cheers of relief. The historic Treaty follows five weeks of tough talks involving 160 countries. Man: The world opinion was saying that we can no longer accept that individuals or countries can with impunity engage in excessive crimes against humanity and war and genocide, and that we must be held accountable. Newsreader: Operating from The Hague, the court will deal with genocide, aggression and crimes against humanity, as well as war crimes. The final document was opposed by the US because of fears that its troops in the world´s hot spots could become the target for politically motivated charges. The new body will be able to act even when the international community dithers, as it did over Rwanda and the Balkans. Annabelle Quince: Created by the Statute of Rome, the court came into existence on 1st July, 2002. But only those nations who had signed the Rome Statute are actually subject to the court. And to date, 106 countries have signed on. Bruce Broomhall: There´s a price of setting up a permanent International Criminal Court with a number of compromises. One of the major decisions early on was that it should be established by treaty, so we decided OK, we´re going to have a treaty, now what do we put in it? And they said, `Well, if we make it just up to states to refer cases, it´s not going to get very far because states parties would ratify the treaty it´s not going to get very far because they won´t tend to complain about each other much. We´ve learned that through the UN Human Rights system. So let´s have an independent prosecutor who can investigate crimes that take place on the territory of states who´ve signed on or that are committed by the nationals of those who have signed on´. And that´s the system you have now. But in addition, they said, `Let´s have it so that the Security Council of the UN can refer cases to it as well,´, and of course as I say, that´s what happened with Sudan. So in principle, yes, it´s basically restricted to what is now the states party, but that´s 106 countries now, including Japan, including Canada, South Africa, something like half the members of the African Union, all of the countries of Latin America, Central and South America, and the Caribbean except for I think five of them. Less coverage in the Middle East, there´s only Jordan; relatively little in Asia, although even there you do have South Korea, you have Tajikistan, for example there´s various countries there, Georgia, there´s various countries in Asia that have signed on. So at 106 out of 192 countries, you´re looking at well over half of the international community. Of course it´s true that for those who haven´t signed on, you need the Security Council to approve, and that´s a political process. That means the United States and Russia and China will never be brought before the International Criminal Court because they have vetoes on the UN Security Council and they haven´t signed the Rome Statute for the ICC. So either those countries are going to be picked off one by one and encouraged to ratify the Rome Statute, or they´re going to remain outside the system. But I think anybody who saw the Rome Statute adopted in 1998 was surprised to see 106 countries having ratified it ten years later. And I think the general feeling was it would take 20 years or more to get to that level, and it was just kind of a happy convergence of post-Cold War circumstances that let the progress be made in the way that it has, so now we´re looking at What will the court actually do? Will it be effective? Will it win support for its strategies? Will it be seen as fair and effective? And so forth. And that´s the big challenge for securing the future of the International Criminal Court. Gary Bass: I think that these institutions definitely have a future. Whether or not they´re actually providing serious justice for Bosnians and Rwandans and Darfuris, that´s an open question. I think that the - sometimes lawyers are so intoxicated with the creation of international institutions that you could forget a bit what these institutions are really supposed to be doing. So there´s no doubt that the institutions will continue to be there, the question is what results they will actually be getting on the ground. Will they be indicting the right people, will they have serious charges, and even more important, will the process of charging these guys and hopefully getting some of them on trial, will that actually contribute to stability and reconciliation within these very, very divided countries? Annabelle Quince: Gary Bass, ending today´s program. And our other guests were, Bruce Broomhall and Professor Bassiouni. The sound engineer is Jenny Parsonage and archival material as always, came from ABC Archives. THEME Annabelle Quince: I´m Annabelle Quince and this is Rear Vision. Thanks for joining me. read less