INTERNATIONAL JUSTICE, WAR CRIMES, AND TERRORISM: The US Record / Vol. 69, No. 4 (Winter 2002)
Arien Mack, Editor
The origins of the Social Research conference at which the papers in this issue were first presented are complicated. Its subject was adapted twice in the course of its development. In the winter of 2000, when we began our planning for the tenth conference in the Social Research series, we intended to organize a conference on “Punishment.” International Justice, War Crimes, and Terrorism: The US Record seeks to examine the American role in the evolution of new forms of international criminal jurisdictions from a variety of perspectives.
Hamid Dabashi Statement Protesting the Sentenced Execution of Professor Hashem Aghajari The article presents a statement of protest to the death sentence handed to professor Hashem Aghajari for the charges of apostasy in Iran. Aghajari was charged in August 2002 after giving a speech in which he rejected demands to follow heedlessly clerical rules. The speech caused a stir among the loyal clerics in the religious establishment. The clerics thought of the professor's view as an attack on the Prophet of Islam and on fundamental Shiite Islamic doctrines. However, the trial in which Aghajari was condemned was said to be off from the international standards of due process for it was conducted behind closed doors, and the defendant was not given full access to his lawyer.
In his introductory remarks to the conference at which the papers in this volume were presented, Kenneth Prewitt, then the dean of the Graduate Faculty at New School University, called human sacrifice a remote historical subject. Martin Peretz disagrees with that point--human sacrifice is once again being practices, certainly among the Palestinians, but also by other Muslims.
Amb. Richard Holbrooke Just and Unjust Wars: A Diplomat's Perspective The article discusses the author's perspectives on the moral and ethical aspects of the war headed by the US. The author stresses that an individual's just war can be an act of terrorism or genocide on another. Moreover, he notes that those who do murderous activities justify their actions by invoking religion or nationalism. He believes that relativism has influenced American foreign policy. Thus, he points out that the greatest dilemma that needs to be addressed in discussing just and unjust wars is the nature of modern wars, which he emphasizes as the factors that need to be considered by the US in building a national army to maintain peace in the Middle East.
Michael Walzer The Triumph of Just War Theory (and the Dangers of Success) The article discusses the author's views on various issues surrounding the just war theory in the US. He examines the application of the theory in the Vietnam war, wherein many civilians were killed. He thinks that the war was fought badly, like there were no moral limits to it. He also criticized the bombing of Iraq in 1991 which had many civilian fatalities. To him, such an attack does not meet the just war standards, which should have included the protection of civilians. He thinks the intervention of the US was driven by geopolitical and strategic motives. In conclusion, the author believes that just war theory is not an excuse for any particular war.
This section on “The Training of the Military: National Law and the Teaching of the Geneva Conventions” follows the discussion on just and unjust war. Although the previous authors pose profound and fundamental questions about the legitimacy of the use of force, the papers in this section assume the legality of the use of military force. The core issue for our inquiry involves the methods and the modes of the use of force--the rules of the game, if you will.
Col. Charles Garraway Training: The Whys and Wherefores The article reflects on the importance of having the right military training for a nation's armed forces. The author thinks that training must be effective in order to justify the need for it. He believes that the basic principles of humanity found in law of armed conflict should also be taught. He emphasizes that military force is not the main solution to conflict rather, it is just a small part of the solution. It is the way peace is handled that will decide the ultimate success of conflict resolution. Thus, military training should not only be strategic but moral, ethical and legal as well.
Col. Anthony E. Hartle Atrocities in War: Dirty Hands and Noncombatants The article focuses on the issue of atrocities by US military personnel in the war against terrorism with reference to the Dirty Hands principle. As a veteran of the Vietnam War, the author learned to function efficiently and professionally as a soldier. Though at that time it did not bother him that prisoners were tortured, looking back at it now, he believes that his reaction was a result of the training he has had. Thus, he emphasizes that military training should center on the laws of war which include the two principles: one, human suffering must be minimized, and two, each person merits respect. These, he concludes, oppose atrocities, and maintains honor without immoral or illegal acts.
W. Hays Parks The United States Military and the Law of War: Inculcating an Ethos The article discusses the association between military conduct in war and its law of war training in the US. The author believes that law of war training is just a part of an integrated program to implement a government's international law obligations. To effectively implement it requires a fundamental moral element within the military. The author emphasizes that it is the command's responsibility to promulgate directives and provide guides for law of war instruction, which is important in maintaining military discipline. In conclusion, he states that the degree to which governments and their military forces have instituted this law of war training program determines its success.
Bob Kerrey International Justice, War Crimes, and Terrorism The article discusses various concepts on how the US conducts itself in war with reference to the Vietnam War, the Korean War, and its ongoing war against terrorism. The author thinks that national and international tribunal should not be used as remedy for war crimes. He emphasizes the need for the military to conduct war according to the requirements of the Geneva Conventions. Although he believes that the deployment of forces in self-defense and threat reduction is understandable and justified bases for military actions, he still holds that self-preservation is far from noble. In conclusion, the author presents agenda for dealing with issues relating to international justice and war crimes.
In the first section of this volume, an immense gap appears to divide Michael Walzer, who approaches the matter of justice and international law from the point of view of a philosopher, from Richard Holbrooke, who approaches it from the point of view of a practicing politician… The assumption, to which different degrees is shared by these two authors, seem to abstract away from the idea of international law.
Gary J. Bass Victor's Justice, Selfish Justice The article discusses the application of victor's justice to political situations and war crimes. The author made a qualified defense of victor's justice by showing that only liberal states favor international war crimes tribunals. He believes that illiberal states negotiate with war criminals, or eliminate their enemies. Furthermore, he notes that liberal states have the ability to risk their soldiers for the sake of international justice. He believes that liberal states are more focused on punishing war crimes committed against their own citizens than those committed against foreigners. In conclusion, the author analyzes the implications of victor's justice for American foreign policy.
Richard J. Goldstone International Law and Justice and America's War on Terrorism The article discusses legal and ethical issues related to the war on terrorism in the US The author notes that although the US is a firm supporter of the Geneva Conventions, it displayed disappointing behavior in treating the prisoners of war in Guantánamo Bay, Cuba. Furthermore, he believes that the US failed to follow international tribunal in dealing with terrorist they have captured. He emphasizes that international law and justice depend on wide acceptance and adherence by members of the global community for it to be efficient and effective. However, he is certain that the success of the fight against terrorism is essential for the continued respect for and protection of human rights.
Stephen Holmes Why International Justice Limps The article discusses the implication of transnational terrorism for both the international criminal justice system and civil liberties. According to the author, promoting international security from threats emanating from nonstate parties would have an effect on the civil rights movement. With the growing need for a comprehensive reconfiguring of governmental powers to enhance international security, sacrifices would have to be made on liberty. These may include curtailment of unregulated markets, restrictions on freedom of information and freedom of speech, and abolition of the right to a free trial.
What about war on terrorism? It is natural for the governments who are victims of terrorist attacks to want to try the perpetrators themselves. But are there times when an international tribunal might be more appropriate? Do we want to mix international justice with respect to terrorism with international justice with respect to genocide, war crimes, or crimes against humanity? The authors of the papers that follow bring various perspectives in attempting to answer these questions.
Aryeh Neier Bringing War Criminals to Justice: A Brief History The article discusses the history of the development of the idea of universal jurisdiction and the establishment of the International Criminal Court. It cites earlier efforts in promoting war justice, including the trial in Greece for various atrocities that convicted two of the country's former presidents in the middle of 1970s and the establishment of international tribunals in Bosnia and the former Yugoslavia in the early 1990s. The author asserts that such efforts to do justice in international and in domestic tribunals will have a deterrent effect on crimes against humanity and will bring justice to victims of atrocities.
Samantha Power Stopping Genocide and Securing "Justice": Learning by Doing The article examines the record of the US in responding to global genocide as well as the progress of international tribunals in promoting justice. The American record spans from the 1915 Armenian genocide until the 1990s atrocities in Bosnia and Rwanda, while international tribunals were created only in the early 1990s. It has been observed that most of the actions of the US were soft sanctions against authoritarian governments which failed to abolish genocides. However, with the establishment of tribunals, a promise not only for the justice of victims and their families but also for promoting deterrence was being held.
David Scheffer War Crimes and the Clinton Administration The article explores issues surrounding the responses of the US to war atrocities from the early 1990s to the present as well as the establishment of the International Criminal Court (ICC). Accordingly, many issues were created due mainly by the fact that the US at first acted conventionally to what are considered unconventional crises, which include the genocides in Rwanda, Bosnia and Serbia. As a result, the government of President Bill Clinton made a decision to use military force as quickly as they could, but it was later hindered by opposition within the administration. With the establishment of ICC, the country was again faced by a dilemma over the accompanying treaty reservation law.
Patricia M. Wald Punishment of War Crimes by International Tribunals The article discusses the author's experience with war crime trials as a judge at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Hague, Netherlands. Before discussing the accomplishments and issues faced by the tribunal, the author first provides an overview of the history of its founding and its organizational structure. In its nine years of existence, the tribunal was able to indict 80 defendants and complete the trials of more than 30 people. However, despite all the achievements it made, the ICTY has been criticized by the Balkans due to its remoteness and for excluding members of the ethnic groups involved in the Bosnian war as members of the court.
Michael Ignatieff Human Rights, the Laws of War, and Terrorism The article discusses the relation between human rights and terror from two perspectives that include the limitations that human rights impose on counterterrorism and the justifications that human rights accord terror. It attempts to clarify what constitutes human rights and how an act of terrorism deviates it by using the controversies surrounding the US government's retaliation to the September 11, 2001 terrorist attacks as a case in point. The article ends with the author's opinion on the strengths and weaknesses of the human rights as a moral system.
David Rieff Fables of Redemption in an Age of Barbarism The article discusses the growing optimism among decent, cosmopolitan people toward the realization of world order in the midst of war and terrorism threats. According to the author, this type of optimism is not only founded on faith and hope but also on the notion that a revolutionary transformation grounded on morality or that a transformation of international relations based on human rights has taken place, citing Michael Ignatieff's argument as a case in point. However, despite the supposed revolution of moral concern, the reality fails to manifest the presence of such, thus pointing the need for powerful nations to do their constructive role in attaining peace.
These are difficult days for international humanitarian law -indeed, for international law in its broader sense. The principal reason for this state of affairs lies not only in the technicalities or the fine points of international law. We have also witnessed a decline in human and humanitarian values.
Theodor Meron, Kenneth Anderson, Richard J. Goldstone, Aryeh Neier, Patricia M. Wald, Michael Walzer Where Do We Go From Here? New and Emerging Issues in the Prosecution of War Crimes and Acts of Terrorism The article presents a panel discussion that addresses the issues surrounding the prosecution of war crimes and acts of terrorism in international tribunals. The discussion opens with the statement made by South African international lawyer Richard Goldstone on the credibility and justification for the establishment of the International Criminal Tribunal for the former Yugoslavia. Another speaker, Aryeh Neier, a human rights activist, talks about the set of duties entrusted to tribunals. The discussion ends by giving light on the policy implications for other international tribunals as well as for the International Criminal Court.