Bringing War Criminals to Justice: A Brief History

IWOULD like in this essay to sum up how we got to where we are now on the question of international justice. As Kenneth Roth indicates in his introduction, it has essentially been during the 1990s that we have tried to hold those responsible for war crimes actually accountable for their acts. Very little was done before that, subsequent to the international tribunals at Nuremberg and Tokyo. There were some earlier efforts, however, the most significant of which I believe are one in the mid-1970s and one in the mid-1980s. In the mid-1970s, after seven years of military rule by “the colonels,” Greece put a number of those responsible for various atrocities on trial, including two men who had served as president of Greece during that period. About a hundred were convicted, including the two former presidents, for various crimes committed during the colonels’ regime. Then, a decade or so later, in the mid-1980s, Argentina put on trial a number of the generals and the admirals responsible for many thousands of disappearances, torture, and summary executions during the seven years of military rule in Argentina. What happened in Argentina dealt a setback to the effort internationally to hold those responsible accountable, because when the effort was made to extend the trials to middle-level officers , they rebelled. There were several armed rebellions led by the mid-level officers, and they were put down by the Argentine government. But the lesson that a number of other countries derived from what happened in Argentina was that it was too danSOCIAL RESEARCH, Vol. 69, No. 4 (Winter 2002) Bringing War Criminals to Justice: A Brief History BY ARYEH NEIER gerous to hold such trials, especially when abuses were committed by the military, because the military was capable of overthrowing civilian governments. Roth referred to the fact that in the southern cone of Latin America, the effort was made to deal with these issues through truth commissions. In Chile, for example, the decision was made to avoid trials, to honor an amnesty that the military government’s leader, General Augusto Pinochet, had issued for himself and for his military cohorts, and instead only to have a truth commission. There was also a truth commission in Argentina, but in Chile the commission decided even to avoid naming any names of the military officers who had committed abuses. You could tell from reading the report issued by the commission that Pinochet himself was responsible for a large number of the abuses, but no one else was identified in the three-volume document. In another country neighboring Argentina, Uruguay, there was actually a national referendum that decided to uphold an amnesty rather than risk the possibility of trials that might cause the military to overthrow a civilian government. So it looked, for a while, after the Argentine experience, that holding those who committed great crimes accountable in criminal trials was doomed. What changed all that was the war in Bosnia, which began 10 years ago. Bosnia was different, I believe, for three reasons. First, of course, the war took place in Europe, fairly close to the center of Europe, only an hour or an hour and a half away by plane from a number of the major capitals in Europe. What was going on in Bosnia had a degree of visibility that was not the case when comparable atrocities took place in Africa, Asia, or Latin America. A second factor in making Bosnia different was that most of the conflicts subsequent to World War II in which great atrocities took place were internal. They were civil wars. Bosnia was an international armed conflict, in the sense that three internationally recognized states were participants: Yugoslavia, Croatia, and Bosnia. As the law of war was understood at that time, it was thought that the concept of war crimes applied only in international armed 1092 SOCIAL RESEARCH conflicts, not in internal armed conflicts. The provisions of the Geneva Conventions that deal with grave breaches, or war crimes, appear in the sections of the conventions and protocols concerning international armed conflicts. (The law of war has developed significantly during the past decade, and that restricted view is...