War Crimes Tribunals
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J. S. Levy
War Crimes Tribunals
From Nuremberg to The Hague and Kigali, the latter
half of the twentieth century witnessed the beginnings
of an international framework for the prosecution and
punishment of war crimes. Yet progress in this area
has been sporadic and discontinuous, often seeming to
reveal as much or more about what does not work as
about what does. Contemporary efforts to establish a
permanent international criminal court usually are
traced to the Universal Declaration of Human Rights
adopted by the United Nations General Assembly a
half-century ago. These efforts continued through a
summer of 1998 meeting of more than 100 nations in
Rome that led to a tentative treaty to establish a
permanent international criminal court (ICC). Con-
tinuing efforts include war crime tribunal activity in
relation to the wars in Rwanda and the former
Yugoslavia and ongoing efforts to ratify and im-
plement the treaty for a permanent court through the
United Nations. Although there is much anecdotal
and growing empirical evidence of the need for a
permanent institution to deal with war crimes, there is
a lack of social science analysis and a resulting
knowledge base that could help to broaden the
foundation of support for an international criminal
court by the public. The agenda of such a court
increasingly is recognized as not only involving right-
ing wrongs of the past but also preventing war crimes
in the future.
1. The Lessons of War
A lesson of World War I was that, left to their own
devices, vanquished as well as victorious nations often
will do little to punish war criminals appropriately
(Marrus 1997). Following World War I, the vulnerable
politicians of the fledgling Weimar Republic insisted
that the prosecution and punishment of German war
criminals should be handled by the German Supreme
Court in Leipzig. The resulting sentences ranged from
two months to four years of imprisonment and were
given to only six of 12 war criminals tried from a list of
more than 900 suspects supplied by the Allied forces.
The proceedings at Nuremberg following World
War II were a notable improvement. The results of
Nuremberg are made more notable by the fact that
public opinion tended to simply favor summary
execution of the captured leaders of the Axis powers.
Franklin Roosevelt’s Secretary of War, Henry
Stimson, argued instead for a trial before an in-
ternational tribunal. Roosevelt’s successor as presi-
dent, Harry Truman, endorsed the trial model and
persuaded the Allied powers to work through the
United Nations in establishing the International Mili-
tary Tribunal (IMT) to prosecute and punish ‘crimes
against peace,’ ‘war crimes,’ and ‘crimes against
humanity.’
The resulting Nuremberg Indictment was regarded
as an extension of the common law of the nations
involved, although this common law was far from
universally recognized at the time of Nuremberg. A
defense posed in response to the resulting prosecutions
was that the tribunal’s charges were ex post facto,
retroactive creations. Marrus (1997, pp. 565–6) notes
that the Harvard criminologist and law professor,
Sheldon Glueck, responded with the common law
retort that
Surely … Hitler, Himmler, Goering, Ribbentrop, Frank,
Doenitz, and the rest ... knew full well that murder is murder,
whether wholesale or retail, whether committed in pursuance
of a gigantic conspiracy to disregard all treaties and wage
lawless wars or of a smaller conspiracy evolved by a group of
domestic murderers.
Twelve war criminals included under the Nurem-
berg Indictment received death sentences. Three
acquittals also demonstrated that such a tribunal could
provide reprieve as well as punishment. The devel-
opment of a jurisprudence of ‘crimes against hu-
manity’ was especially noteworthy as an innovation
that addressed the persecution of specific groups, in
this case including the German Jews as well as other
groups. And, of course, Nuremberg helped establish in
the public mind the responsibility of individuals to
refuse illegal orders. The tribunal’s work also brought
into limited question some Allied war strategies and
methods, including the firebombing of German cities.
But the Nuremberg Tribunal also received justi-
fiable criticism. The presence on the tribunal of
Russian judges and the impunity of Stalin and other
Russian leaders belied their wartime atrocities. Some
charges of ‘crimes against peace’ were clumsily con-
ceived and pursued. In spite of Eleanor Roosevelt’s
successful work for the adoption of the Universal
Declaration of Human Rights in 1948, this effort
expressly rejected a standing tribunal to deal with
future war crimes. Similarly, the impetus of the
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Nuremberg Tribunal was to put the Nazi war crimes
into the past, and the IMT did not become the model
it might have for a continuing institutional response to
the problems of war crime.
2. The Balkans and Rwanda
There certainly was no absence of need for the
prosecution and punishment of war crimes following
World War II and in our more recent history. A partial
contemporary list would certainly include Argentina’s
‘dirty war,’ South Africa’s apartheid, Pinochet’s Chile,
the acts of communist Eastern European govern-
ments, as well as more recent events in Bosnia,
Kosovo, and Rwanda (Neier 1998). During the Cold
War, which lasted for most of the second half of the
twentieth century, human rights violations were
routinely ignored by the West in the process of
supporting anti-communist governments. As the Cold
War ended, this tendency was extended in the os-
tensible interest of promoting democratization. For
example, in Pinochet’s Chile and Botha’s South
Africa, amnesties became bargaining devices to pro-
mote democratic transitions. In Latin America and in
South Africa, truth commissions became compensa-
tory vehicles of reconciliation. The liability of this
approach, of course, is that political and military mass
murderers have escaped prosecution and punishment.
Events in the Balkans and Rwanda evolved against
this international backdrop, with the difference that
feminist scholars and activists became involved in
exposing the systematic use of rape as an instrument of
terror and intimidation in waging war. A United
Nations commission assisted by human rights groups
found that in the 1990s ethnic Serb military and
paramilitary groups had systematically tolerated and
encouraged the raping of Bosnian Muslim women as
part of the effort to drive Muslims from their com-
munities. This form of sexual violence was recognized
as a deliberate tactic used to terrorize and humiliate a
civilian population not only through the immediate
assaults involved, but also through the creation of
forced pregnancies. Rape was also instrumental in the
genocidal campaign waged by Hutu troops against
Tutsi women in the war conducted in Rwanda in 1994.
Both in Bosnia and Rwanda, these tactics were
recognized as premeditated acts of war aimed at
women.
Commission and human rights work in the Balkans
and Rwanda formed the foundation for the demand
that rape be recognized internationally as a war crime,
in a manner analogous to assaults against non-
combatants, mistreatment of prisoners, torture, and
other systematic, deliberate, and premeditated forms
of violence. This innovation was crucial in the
formation by the United Nations Security Council of
two ad hoc criminal tribunals for the former Yugo-
slavia and Rwanda in 1993 and 1994 respectively.
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Justice Richard Goldstone served as the first war
crimes prosecutor for the Balkans and Rwanda and
played an important role in successfully treating sex
crimes as a form of genocide and as crimes against
humanity.
Each of the ad hoc tribunals currently has investi-
gators, police officers, military analysts, legal advisers,
trial lawyers, and judges who are involved in develop-
ing and trying cases, from the exhumation of mass
graves through the preparation of formal indictments
and court proceedings, with trials, dispositions, and
appeal hearings held in Arusha, Tanzania and The
Hague, Netherlands. The tribunal investigators and
prosecutors play unique roles through their daily
contacts with victims and witnesses. This involves
building the trust and cooperation that is necessary in
translating victims’ and witnesses’ stories of atrocities
into the testimony that is needed to try cases. The most
severe sentence that is available to the tribunals is life
imprisonment.
The tribunals have indicted about 20 persons a year
since their formation. Moving from indictment to
arrest and prosecution is often a formidable process,
since the tribunals must rely on the police and armed
forces of cooperating nations to apprehend and take
indicted persons into custody. As of spring 1999, 34
persons had been arrested and charged before the
Rwanda tribunal, and 26 before the tribunal for the
former Yugoslavia. Assuming custody and the in-
itiation of a prosecution, the nature of the cases and
severe prospective punishments creates further incent-
ives for the accused to delay the beginning of a trial
and then pursue a lengthy defense. Justice Goldstone’s
successor as the chief tribunal prosecutor, Justice
Louise Arbour, attempted to speed up the process by
trying accused in groups, but she was rebuffed by the
Court. Justice Arbour is recognized for numerous
reforms and innovations that have dramatically im-
proved and expanded the role of the ad hoc tribunals.
The tribunal in Rwanda was mired in United Nations
bureaucracy and allegations of corruption until a
shakeup by Arbour that led to increased arrests and
the successful prosecution of a former prime minister
held responsible for a genocide that included the
slaughter of more than 700,000 Rwandans in 1994. At
one point, Arbour was physically prevented from
entering Kosovo by Yugoslavian border guards.
Undeterred, she pursued the indictment of former
Bosnian Serb President Radovan Karadzic and the
General Ratko Mladic. When Arbour assumed her
position there existed no clear precedent for indicting
a sitting head of government for war crimes, although
Admiral Karl Doenitz, as the Nazi head of state
following Hitler’s suicide at the end of World War II,
had been convicted and imprisoned for war crimes at
Nuremberg. Arbour established a clear precedent
when she obtained a war crimes indictment against
Serbian President Slobodan Milosevic. She gained
further attention when she remarked in public that

NATO leaders could conceivably stand trial for air
strikes that caused civilian deaths in Yugoslavia. This
signal of evenhandedness is important because figures
such as Milosevic have drawn comparisons between
killings in Kosovo and the execution of Vietnamese
villagers by American soldiers during the war in
Southeast Asia. One of Arbour’s most significant
achievements involved bringing war crimes prose-
cutions fully into the present as a ‘real-time’ insti-
tutional response to atrocities and genocide virtually
as they happened in Kosovo.
The scale of the tasks that confront war crimes
tribunals of the kinds recently established is suggested
by the situation in Rwanda where more than 100,000
people, almost all Hutus, have been held in jail on
charges stemming from the massacres and other crimes
involved in that country’s genocidal conflicts. No legal
system can put all of the guilty through full and formal
trial procedures, but prosecuting high-level or rep-
resentative perpetrators is essential to achieving a
sense of justice. There is a clear contrast between the
Western-influenced emphasis on time-and-resource-
consuming procedural safeguards in the tribunal
context and the expedited forms of criminal and civil
dispute resolution practiced in settings such as the
Rwandan courts. Some combination of jurisdictions is
required, with tribunal responsibility for cases with
greater potential impact nationally and internation-
ally. This kind of issue has complicated calls for a
more permanent court for war crimes.
3. An International Criminal Court
The Balkan and Rwandan tribunals have served as
prospective models for a permanent international
court. In July 1998, more than 100 countries met in
Rome with American participation to negotiate a
treaty creating a permanent war crimes tribunal that
would act independently of the United Nations and its
Security Council. The result was a vote approving in
principle an International Criminal Court (ICC) with
powers to try cases of genocide, war crimes, crimes
against humanity, and crimes of aggression. The
positive votes for the treaty to establish the court came
from 120 nations, with 21 nations abstaining and
seven nations opposed, including the USA. Unlikely
allies of the USA in this opposition included Libya,
Algeria, China, Qatar, and Yemen, with Israel also
not signing.
American officials involved in the negotiation of the
treaty were especially concerned about the risks the
ICC could pose to its own military and political
purposes and personnel. These officials were quick to
note that with about 200,000 military personnel
permanently stationed in about 40 countries around
the world, the USA has much at stake. The risk for the
USA, it is argued, is increased by expectations that this
nation act quickly in crisis situations, and that the
War Crimes Tribunals
world relies on the USA’s being able to do so without
fear of arbitrary litigation and liability. The worry is
that countries such as Cuba or Libya would use the
court to harass the USA in its legitimate efforts. To
address this concern, the US negotiators in Rome
sought guarantees that American military forces and
agents would not be prosecuted by the ICC without
US consent. At one point in the deliberations an
American motion to obtain such guarantees was
refused by a vote of 113 to 17, with 25 abstentions. The
concern was that if the USA achieved such a loophole,
other nations would expect similar protection. Despite
the strong support from most nations for the es-
tablishment of the ICC, its future remains in doubt.
The treaty requires formal ratification by at least 60
nations before it can take effect.
The provisions of the treaty provide that the ICC
could proceed with a case if the accused was from a
signatory nation or the crime took place within a
country that had ceded jurisdiction to the international
body. The court could not take jurisdiction over a case
unless a national court failed to act, leading advocates
to argue that its existence could constitute an im-
portant institutional incentive for countries to pros-
ecute their own war criminals. The court would be
made up of an international panel of judges, a
prosecutor’s office, and an administrator; it would
presumably rank along with other international insti-
tutions such as the World Trade Organization, the
International Monetary Fund, and the World Bank.
The jurisdiction of this court is over individuals, as
distinct from the International Court of Justice in The
Hague, which settles disputes between countries. A
key premise is that an indictment by the court of a
citizen or a leader of a country would be a serious
matter that would restrict the movement of those
involved and in this way immediately have a significant
impact, even without arrest or prosecution.
Hundreds of citizen human rights and legal groups,
such as the New York-based Human Rights Watch
and the International Center for Human Rights and
Democratic Development in Montreal, support the
creation and establishment of the ICC. The failure of
the USA to strongly support the ICC is a frustration to
many of these groups. Eleanor and Franklin Roosevelt
were prime movers in the adoption of the Universal
Declaration of Human Rights, the founding document
from which many treaties of this type have followed.
Yet the USA has often lagged behind other nations
in the ratification of such treaties. For example, it
took the USA fully 40 years to ratify the Genocide
Convention. So while the USA played a major role
in establishing the Rwandan and Balkan tribunals, it
continues to maintain a reluctant stance with regard
to the ICC.
Perhaps the strongest argument that can be made
against American approval for the ICC is the control
the USA might lose over the use of war crimes
prosecutions as a bargaining chip in its negotiations
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over the complicated conflicts it seeks to control
around the world. The perplexing complexity of such
negotiations was revealed with all of its frustrations in
the Balkan conflict. The Clinton administration
sought a settlement that would avert a war over
Kosovo through its negotiation of the Dayton
Accords. At first it seemed that the United Nations
war crimes tribunal had assisted this process by
indicting Radovan Karadzic and elevating the position
of Slobodan Milosevic. However, Milosevic soon
proved to be no better a partner for peace than
Karadzic, and the Serbian violence was allowed to
continue, resulting in his belated indictment as well.
The lesson may simply be that mass killings and
genocide will continue to occur until a system of
deterrents comes into effect through an institution
such as the ICC.
It is of special note that two of America’s closest
allies, Canada and Great Britain, have taken a
particular interest in the Rwandan and Balkan tri-
bunals and the ICC, often seeming to lend more
durable support than the USA. The Canadian Foreign
Minister, Lloyd Axworthy, built on the leadership role
played by the Canadian jurist, Louise Arbour, during
her term as Chief Prosecutor of the Rwandan and
Balkan tribunals. Both have emphasized that armed
conflicts in the world now increasingly involve strug-
gles within rather than between nations, with parallel
increases in civilian as opposed to military casualties.
They argue this requires new ways of thinking about
and dealing with issues of national sovereignty, so that
efforts to protect the latter do not become shields used
by political and military leaders to cloak such crimes
as murder, torture, rape, forced deportations, and
expulsions. During the Kosovo crisis in particular,
and the subsequent Milosevic indictment, the British
government showed a firm resolve to use international
criminal law to deal with intra-national crimes against
humanity.
The Canadian-born and now British-based journal-
ist Michael Ignatieff, and the British lawyer and
human rights activist Geoffrey Robertson, have been
among the most effective spokespersons for a per-
manent international criminal court. Ignatieff’s (2000)
book, Virtual War, makes a powerful argument for
just how much the politics and technology of war have
changed in recent decades. Ignatieff argues that it is
our failure of moral imagination to keep pace with
these changes that inhibits the movement to a per-
manent international criminal court. Robertson’s
(2000) book, Crimes Against Humanity, paints a
historically and geographically sweeping picture of a
world in which violent human rights abuses more
often than not go unpunished. Nonetheless,
Robertson argues that the Balkan and Rwandan
tribunals signal a new ‘age of enforcement’ that is
promising and already in progress. Many share
Robertson’s hope that these tribunals will continue to
evolve into a permanent ICC.
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International Encyclopedia of the Social & Behavioral Sciences
4. Research Priorities
Many important questions remain regarding war
crimes tribunals. In particular, it will be important to
learn how the international prosecution of war crimes
is organized and to contrast this with the work of
national justice systems, such as Rwanda’s, which may
also prosecute and punish war criminals in large
numbers. Answers to the following kinds of questions
would be especially useful in expanding our knowledge
base: How are the presumed worst offenders and
offenses selected for international prosecution? How
are prosecutors and judges selected for tribunal work?
What are the patterns of conviction and punishment?
What is the role of international public opinion in
influencing the tribunals and the prospective per-
manent court? What are the effects on the prosecutors
and judges who become involved in this work? What
are the prospects of a more permanent international
criminal court and how might its work differ from the
current efforts of the ad hoc tribunals? The importance
of international war tribunal work seems obvious, and
our knowledge of this work is unfortunately modest.
See also: First World War, The; Second World War,
The
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J. Hagan
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War, Political Violence and their
Psychological Effects on Children:
Cultural Concerns
1. The Problem
Social science research on children and war can be
traced back to at least the first World War but began
ISBN: 0-08-043076-7