International law and justice and America's war on terrorism - International Justice, War Crimes, and Terrorism: The U.S. Record

Social Research, Winter, 2002 by Richard J. Goldstone

ACCORDING to figures published recently by Swedish researchers, in World War I some 95 percent of all deaths were suffered by soldiers. In those days armies fought against armies. In World War II the figure dropped to 50 percent. With the deliberate targeting of cities (London, Coventry, Dresden, Hiroshima, Nagasaki), this dramatic increase in the deaths of innocent civilians is not surprising. In the Korean War, 84 percent of those killed were civilians and in the Vietnam War it rose to 90 percent. In more than 100 civil wars since 1945, civilians were also the targets of war and the overwhelming number of deaths was suffered by civilians.

The events of September 11 were yet further illustration of the targeting of civilians and it is in that context that they should be considered. September 11 is also an example of the globalization of terror--demonstrated by the nationalities of those captured and presently being held at Guantanamo Bay.

The reason for this failure by humanitarian law to protect civilians from war crimes certainly cannot be ascribed to any shortcomings in the laws. Over the past century and a half, the laws of war have become detailed and sophisticated. This is much to the credit of the International Committee of the Red Cross, which has hosted diplomatic conferences from time to time to update the laws. The Hague and Geneva Conventions, supplemented by the customary laws of war, have a coherence that would result in the very real protection of noncombatants if they were enforced. The problem, of course, lies in the absence of any enforcement mechanism. War criminals have hardly ever been prosecuted in their home countries. So these laws have been honored in their breach. In the absence of enforcement mechanisms few, if any, laws would be obeyed. It is the fear of detection and punishment that result in the effectiveness of the criminal law. In any nation-state the crime rate is related directly to the efficiency of policing and the criminal justice system. The more efficient they are, the lower the crime rate will be. It is no different in the international community.

Until 1993 there was an absence of international accountability for war crimes. To compound that deficiency, domestic law enforcement authorities were not endowed with any jurisdiction to prosecute offenses committed beyond their borders. The only exception related to acts of piracy, which, by definition, were not usually committed within the area of jurisdiction of any state. An exception was therefore made for pirates and a universal jurisdiction was recognized. Pirates could be prosecuted in the courts of any nation. It remained an exception to the general rule until after World War II. Until then individuals were not the subject of international law. Only nations and their governments were recognized as such. There were no international or transnational courts to which individual victims of war crimes could turn for redress.

The Holocaust shocked the consciences of all decent people and led to dramatic changes in the way in which war criminals should be treated. They began with the 1945 London Agreement, which established the terms under which the four victorious allied powers prosecuted the Nuremberg trials of the major Nazi leaders. There was no question of universal jurisdiction but rather the pooling of the national jurisdiction that each of the allied powers possessed to prosecute the war criminals. Individual people were first recognized as the subjects of international law in the Charter of the United Nations and in the Universal Declaration of Human Rights. Human rights became the concern of all nations and the international community. The manner in which governments treated their own nationals was no longer only an internal affair--it became the legitimate business of other nations and international organizations.

There were other international law consequences. The Genocide Convention received unanimous support in the General Assembly and has been ratified by every member of the United Nations. It places obligations on states to take steps to prevent the commission of that crime. The convention also assumed that there would be an international criminal court with jurisdiction to prosecute people suspected of committing genocide (that, of course, was premature.)

The advance that led to the recognition of universal jurisdiction was a new species of crime called crimes against humanity. These were crimes of such magnitude that they were crimes not only against the victims themselves or even the people of the country in which they were committed: they were crimes against all of humankind. As such, they could be prosecuted by people in any country. Jurisdiction depended not on the place where such crimes were committed, but rather on the nature of the crime.

It was the Geneva Conventions of 1949 that first recognized universal jurisdiction. They conferred jurisdiction in respect of a new species of war crimes called grave breaches. These were defined to include the most egregious of war crimes and all nations that ratified those conventions were endowed, by international law, with the jurisdiction to prosecute any person suspected of committing a grave breach. If the domestic laws of a nation made that impossible or if a national authority refused to do so, a nation accepted the obligation to deliver such suspect to a country that was willing or able to prosecute such person.