Saturday, 25 November 2006

I See Red

Your old pals – James and Kato – caught up for a lovely evening of discussion about war crimes. The panel of 6 had been put together by the Australian Red Cross and featured luminaries such as:

  • Graham Blewitt AM - Director of the Australian Nazi War Crimes Unit and Deputy Prosecutor for the ICTY.
  • Justice David Anthony Hunt AO – NSW Supreme Court Judge, Judge on the ICTY, and the ICTR.

Some thoughts from the panel – and some from me.


Where do you put a Tribunal? Outside the country eg. The Hague? Or inside eg. East Timor’s courts?

The ICTY was able to successfully interview rape victims as witnesses primarily because they were taken outside of their communities where their lives would have been made hell. Cf. Iraq where there has been intimidation and assassination.

Domestic courts can be desirable. Proximity to victims makes their verdicts more “meaningful”. However sometimes they are just the cheaper option. In East Timor a shortage of jurists, lack of funds and inability to extradite criminals from Indonesia meant that the shortcomings of the courts were patently apparent to the victims.


Trials are expensive. The ICTY cost $275 million per year. The ICC is more expensive again.

The “International Community” should pay because they provide a deterrent, which is good for everyone. In Macedonia, when military officers were briefed by the UN about the trials in the ICTY and told that its jurisdiction was continuing, there was a deterrent effect.

It’s a bargain compared to waging a military campaign or to allowing the cycle of violence to continue.

The US

A case against the US for high level bombing in Kosovo was not explored because it could not be proved beyond reasonable doubt – however this was the wrong test. It was enough to prove that there was a case to be answered.

Rumsfield has been indicted by a court in Germany.

Sharon has been indicted by a Belgian court.

Truth and Reconciliation Commissions (TRCs)

  • Can process more people.
  • They limit the scope of “permissible lies” – it becomes impossible to say atrocities did not happen.
  • Often what is wanted by victims is that their pain is recognised rather than that the perpetrators are gaoled – example was West Papua. We should “listen to the victims.” (?)
  • Make it easier to live together again as a society (?)
  • Do not provide a deterrent for soldiers in other conflicts.
  • The “amnesty” granted is a murky area of international law because the Geneva Conventions require states to prosecute war criminals.

Trials and TRCs

A study by Oxfam in East Timor suggested that people wanted violent crimes prosecuted, while the less serious crimes could go through a TRC. This sounded good on paper but the failure of the courts meant that minor criminals were doing penance while the major perpetrators were walking free.

The South African example is often used to show how giving amnesty works instead of trials. However of the 7000 people who applied for amnesty, 5000 were knocked back. So there was still lots of prosecution.

My Thoughts

Unfortunately the event was poorly moderated and as you can see the panelists did not really get stuck into any particular issue. I would have loved to see more discussion on whether TRCs can work with Trials, what makes up this “International Community” and what are the machinations required to get your conflict taken seriously enough to warrant the enormous bill that this type of action requires.

However the most fascinating question was simmering under the surface of the panel. There were those who were fixated on “listening to the victims” and working out what they wanted. In contrast to that approach there were those who seemed more enthusiastic about building a formidable international criminal deterrent. To me, this raised the moral quandary of a “greater good” and of ends justifying means.

It would be simple if the law was only concerned with victims. However (as one panelist argued) dealing with the past is a big part of creating a future for a country that has been torn by war. So doesn’t this mean that there a responsibility to the rest of the country and to those who would be caught up in fresh violence? What about victims in other conflicts who would stand a better chance if the rampaging military knew that impunity was not available?

What does Disco think about these questions?

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