Peace and the laws of war: the role of international humanitarian law in the post-conflict environment
30-09-2000 Article, International Review of the Red Cross, No. 839, by Colm Campbell
Colm Campbell is Professor of Law, Human Rights and Equality Centre, University of Ulster at Jordanstown, Northern Ireland. — The author wishes to thank Professor Fionnuala Ní Aoláin of the University of Ulster and Dr. Colin Harvey of Queen’s University, Belfast, for their helpful comments on drafts of this paper.
Résumé en français
While international humanitarian law has long generated a rich body of scholarship on substantive legal issues, particularly in relation to combat situations and military occupation, considerably less attention has, until relatively recently, been devoted to its role in post-conflict scenarios. What consideration there was tended to focus on the Nuremberg [1 ] and Tokyo [2 ] precedents emphasizing justice-as-accountability, with occasional events, such as the Eichmann trial, serving as a catalyst for broader discussion. [3 ]
The reasons are obvious: there was little discussion of the role of international humanitarian law in such situations because there seemed little to discuss (though this begs the question as to whether the law might have played a larger role if a broader debate on its possible contribution had emerged earlier). With the closing of the Tokyo and Nuremberg Trials and those under Control Council Order No. 10, an internationally validated infrastructure came to an end. The absence of any similar ad hoc bodies, the unwillingness of the international community to establish a standing tribunal with criminal competence in the area, and the limited use of humanitarian law by national criminal tribunals in post-conflict situations despite the creation of universal jurisdiction over grave breaches of the four Geneva Conventions of 12 August 1949 on the protection of war victims all contributed to a situation in which international humanitarian law seemed to be playing quite a limited role in the post-conflict arena, generating only sporadic academic interest. [4 ] Compounding matters was a tendency by some lawyers towards compartmentalization, resulting in a perception of humanitarian law as somewhat removed from the mainstream of legal debate.
The picture has now changed almost beyond recognition. Not only has the role of international humanitarian law in post-conflict situations become an area of increasing scholarly focus, there has also been a noticeable whittling away at the perceived isolation of this area of law, with the result that the links between humanitarian law and other areas of public international law have been become more clearly visible.
Three factors have contributed largely to these developments: the first has been the growing convergence of international humanitarian law and international human rights law, most obviously in the adoption, virtually verbatim, of the fair trial provisions of the 1966 International Covenant on Civil and Political Rights in the two 1977 Protocols additional to the Geneva Conventions. [5 ] This convergence is also evident in the elaboration of a number of codes of conduct and declarations which have attempted to bridge the gaps between human rights law and international humanitarian law in relation to crisis situations of various sorts. [6 ]
The second factor involves two interrelated developments. One is the emergence in recent years of a trend towards structured (some would say choreographed) peace processes in relation to intractable or stalemated violent conflicts (examples include El Salvador, the former Yugoslavia, Palestine/Israel, South Africa, and Northern Ireland). Since the balance of forces or the circumstances in these conflicts were such that no side was able to achieve a military victory and thus to impose its will on the other(s), the negotiating processes have had to attempt to reconcile the interests and concerns of all sides. This has frequently required that questions of past violations of human rights law and international humanitarian law be addressed. The other, related development has been the process of structured transition from military to civilian rule in recent decades, most obviously in Latin America (examples include Chile and Brazil). These processes have generated a discourse on “transitional justice”, [7 ] into which the post-communist transitions in Eastern Europe have fed. [8 ] Central to this inquiry has been the question of how democratic successor governments should deal with serious violations of previous regimes, with particular reference to the institutional vehicles for engaging with past violations. [9 ] Its themes therefore mesh neatly with those which have emerged in recent peace processes; indeed, it is possible to subsume many legal issues relating to the latter under the general “transitional justice” umbrella.
The third factor, which is directly related to the peace process issue, is the resurrection of the international criminal tribunal model, firstly through the creative use of Chapter VII of the UN Charter in the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), [10 ] then by following this precedent with the International Criminal Tribunal for Rwanda (ICTR), [11 ] and finally by the adoption of the treaty-based Rome Statute of the International Criminal Court (ICC). [12 ] The creation and operation of the ICTY and ICTR have contributed to the overall picture not only though their impact on the developme nt of the substantive law, but also by rekindling a heated debate on “peace versus accountability”. This theme most pointedly aired in a 1996-97 exchange between an anonymous contributor [13 ] and Felice Gaer [14 ] in the pages of Human Rights Quarterly — connects many of the developments outlined above: do the requirements of peace-making (Realpolitik) trump demands for accountability for past gross violations of humanitarian law, or can these apparently conflicting demands be accommodated?
The purpose of this paper is not to make yet another attempt at seeking a definitive answer to this question — many forests of paper have already been sacrificed in the exercise — rather it is the narrower task of examining and critiquing the roles which the debates have suggested for international humanitarian law (in terms both of substantive law and of legal process). Particular attention will be given to the law’s contribution to the stabilization of the post-conflict environment through its contribution to the reconciliation process. The focus therefore is on legal impact, something that can perhaps best be assessed in terms of the institutional vehicles most frequently employed in putting the law into effect: the criminal trial and the truth commission.
It is possible to think of at least three other instances in which international humanitarian law could play an important role in the post-conflict environment. The first is as a reference point in “lustration” processes: the screening out of “bad apples” from security forces by successor governments. [15 ] The second is in relation to reparation of victims of past abuses. The third is the more generalized contribution which dissemination of the standards and principles of humanitarian law can make to building a culture of rights and responsibilities in the post-conflict environment. And while these concerns are beyond the present inquiry, they will be considered insofar as they help to amplify issues which form t he paper’s central focus.
Trial, peace and international humanitarian law
First a warning: the terms of reference of the “peace versus accountability” debate are clearly problematic in international humanitarian law. The suggestion that blanket non-prosecution is a legitimate policy option (“peace trumping accountability”) runs counter to the direct imperative in the Geneva Conventions to repress grave breaches. A formal amnesty for grave breaches would therefore be unlawful, however attractively presented as a necessary part of an overall peace package. Parallel arguments apply in relation to the most serious violations of international human rights law. [16 ]
While humanitarian law does provide for amnesties in relation to high intensity non-international armed conflict — the 1977 Protocol II additional to the Geneva Conventions stipulates that at the end of hostilities the authorities “shall endeavour to grant the broadest possible amnesty” [17 ] — the provision in question has generally been taken to refer only to offences for which amnesty was possible, and thus not to the most serious breaches of the Protocol. [18 ] The category of those benefiting could be expected therefore to correspond closely to those who would have “combat immunity” in international armed conflicts, and who would as such therefore be entitled to release at the conflicts’ end.
But between the black-and-white choices of formal amnesty for all crimes versus explicit commitment to prosecute, there are myriad shades of grey, tinged with greater or lesser degrees of unlawfulness. Rather than an explicit amnesty there may simply be a failure to act. This may be the result of an unwritten agreement that nothing will be done to advance prosecution at the national or international levels, or a more obscure “understanding” to that effect. A further possibi lity is that the failure may be due to a unilateral policy decision, or it may reflect a lack of hard evidence, which may in turn be due either to a genuine difficulty in assembling the material, or to a lack of willingness to investigate. In relation to non-international armed conflicts, while it is now recognized that serious breaches of applicable humanitarian law are international crimes, [19 ] neither Article 3 common to the 1949 Geneva Conventions nor Additional Protocol II contain provisions equivalent to those in the said Conventions creating universal jurisdiction over grave breaches.
For those who wish to secure the greatest possible respect for humanitarian law, it is important that the arguments currently in the public domain on the utility or otherwise of trials involving use of humanitarian law be taken up, if only to make sure that in the grey areas the likelihood of ensuring respect for international humanitarian law is enhanced. This requires a critical scrutiny of the arguments in favour of resort to the law in order to verify that claims for the utility of the law in such circumstances are based not on overblown assertions but on sustainable reasoning.
The utility of trial
Arguments for the utility of trial in the post-conflict environment fall under three main headings: trial as deterrence; trial as justice; and a relative newcomer: trial as a route to truths. In some instances the structure of argumentation proceeds by a direct extrapolation from standard domestic criminological and criminal justice debate — the reference to deterrence theories providing an obvious example. Such a read-across may be doubly problematic: firstly because the international legal order is quite different from the national, a factor which can impinge significantly on the operation of international tribunals; [20 ] and secondly because, as Cohen has pointed out, Wester n-dominated criminology takes as its starting point the existence of a stable democracy — an unwarranted assumption in post-conflict situations. [21 ] This is not meant to imply that such arguments are invalid, but merely that they need to be approached with considerable caution. It also suggests the need for a more precise identification of the delineation between the domestic and international spheres in relation to trial, since it is arguable that the waters in this area have become muddied, at least partly because of a failure adequately to do so.
In fact, four possible trial scenarios need to be taken into account: trial by an international criminal tribunal (which can proceed only on the basis of a breach of international criminal law); trial in the domestic tribunals of a third country, on the basis of a charge framed as a breach either of international criminal law or of a domestic law transposing an international legal obligation (an option which the Pinochet case has forced into the public consciousness [22 ] ); trial in a domestic tribunal of the State in question for a breach of international criminal law framed as such; and trial in a domestic tribunal of the State on the basis of a charge framed in terms of domestic law which might also have been framed as a crime against international law (for instance a killing might be charged as murder rather than as a crime against humanity). It is in relation to these various possibilities that the validity of the arguments and counter-arguments surrounding the relationship between deterrence, justice, and truth must be judged, rather than in terms of a simplistic “trial-in-the-abstract” standard.
Trial and deterrence
The best that can be said about the viability of deterrence theory in the context of major violations of international humanitarian law is that it is, as yet, unproven. Standard criminological liter ature describes two kinds: specific (deterrence by trials of those who have already engaged in criminal behaviour), and general (deterrence of potential criminal behaviour in society at large). After the combined experiences first of Bosnia and Herzegovina, and then of Kosovo, there can only be said to be a severe doubt as to the specific deterrent value of international trials in such situations, a conclusion which Cohen had reached well beforehand when he branded the theory as “dubiously relevant”. [23 ]
While the possibility of trial for breaches of humanitarian law before an international tribunal might, because of the gravity which international trial signifies, be taken to have greater deterrent value than trial before a domestic court, this does not appear to be the case. At least part of the problem may be that referred to by Farer: “relative certainty trumps relative severity” in the deterrent stakes. [24 ] Thus since the numbers tried in international tribunals must, on the basis of logistical considerations alone, be relatively small, individual violators will know that the chances of their being so punished are remote, and the deterrent value will be correspondingly low. The picture might be different if widespread, systematic and impartial domestic trial for such breaches were instituted at the domestic level — indeed it is arguable that it could be different only if that were to occur — but until such evidence becomes available, theories of specific deterrence will remain of unproven value in the contexts under examination.
Admitting that the ICTY may have achieved little under the “specific” heading even before Kosovo, Payam Akhavan, who has acted as Legal Adviser to the Tribunal, sees it as contributing significantly to general deterrence in that its operation serves to produce “the gradual internalization of expectations of individual accountability and the emergence of habitual conformity with elementary humanitarian principles”. [25 ] Fro m this perspective, trial becomes something akin to a social engineering tool: “the prevention of future crimes is necessarily a long-term process of social and political transformation, entailing internalization of ideals in a particular context or “reality”, or the gradual penetration of principles into given “power realities”. [26 ] This focus on inculturation meshes with a broader discussion, mentioned above, on the possible culture-building role of international humanitarian law generally, while the emphasis on internalization resonates with A khevan’s views on trial as a route to truth and will be further explored below.
Justice, accountability and the rule of law
Explicit justice-claims, quite separate from deterrence theories, surface in the trial debate under two main headings: justice-as-fairness (mainly discussed below in the context of the relationship between truth and legal procedure); and a cluster of arguments around the “justice-as-accountability” theme, focusing on the moral obligations of a State faced with massive violations, and on the need to uphold the rule of law as a value in itself. As both Huyse and Cohen note, regimes which have been responsible for serious and systematic human rights violations are taken to have fractured the moral order, producing in the process countless victims of torture, murder and general abuse. [27 ] The suffering of these victims, it is claimed, renders it morally unacceptable that perpetrators should escape punishment, and since morality also demands that those accused of violations be treated justly, the appropriate route to punishment is through trials which respect due process of law. Where no action or insufficient action is taken at national level (as in the case of the former Yugoslavia and Rwanda), the obligation falls upon the international community. Such arguments dovetail neatly with free-standing claims in relation to the rule of law. Since maintaining the rule of law is a good in itself, the quasi-moral obligation to uphold this good falls upon the State, in the first instance, and then upon the international community.
Sometimes a morality-based demand for justice is presented in terms of a retributionist rationale familiar from national criminal justice debates: the need for some kind of relationship between the suffering of the victim and that to be imposed upon the perpetrators. Few if any commentators burrow further in national debates to argue that punishment may lead to the rehabilitation of violators (although some parallel issues crop up in the debate touched upon below on “reintegrative shaming” in relation to truth commissions).
For the reasons already mentioned, the question of the legitimacy of read-across from domestic criminal justice debates to the post-conflict environment is an open one. The key feature of the transitional aspect of this environment is the move from a situation in which the rule of law was either absent or highly degraded — how else could systematic gross human rights violations have taken place — to one in which the rule of law is established. Thus there is no possibility of maintaining the rule of law (at least at the domestic level); at best it can be recreated.
As regards morality-based arguments, it is clear that for very many people it is highly repugnant that those who have inflicted so much suffering on victims not be made to account for their actions. And the individual criminal trial offers the paradigm of accountability. As international humanitarian law gives a much more explicit recognition to the principle of individual criminal responsibility than human rights law, outlaws all the gross abuses typically committed in conflict situations and, particularly since the adoption of the two 1977 Additional Pr otocols, also provides extensive due process guarantees, it is tailormade to serve this purpose. To categorize a particular infraction as a breach of the laws of war, whether this categorization is made by an international or a domestic court, underlines the seriousness of the crime in a way that a trial employing ordinary domestic charges cannot, even if the domestically framed charge has the same elements as that framed in terms of international humanitarian law. Use of international humanitarian law therefore has an important symbolic function, which can make a significant contribution to satisfying victims’ thirst for accountability.
The contrary argument gets to the root of the “peace versus accountability” debate: as Cohen points out, “the paradox is that some measure of impunity might be the best way to create the political conditions under which the rule of law is eventually attainable”. [28 ] Less prosaically, in the exchange referred to above, “anonymous” asserted accusingly that demands for punishment made during the Bosnian peace negotiations meant that “thousands of people are dead who should have been alive — because moralists were in quest of the perfect peace”. [29 ] Variants of the argument ultimately point in the same direction: an insistence on prosecution of past human rights violators in the post-conflict transitional phase may be profoundly counter-productive because it may either hamper the negotiation of a settlement — “turkeys don’t vote for Christmas” — or it may undermine a newly emerging post-conflict democracy, for instance by provoking a military coup. Instead of satisfying the quest for justice, the end result may be more human rights violations, and rather than restoring the rule of law, prosecution may result in its subversion.
While there is no denying the pragmatic force of these arguments, it is not clear that they apply with equal vigour to each of the four possibilities of trials identified above. It might also be cla imed that some turn as much on the timing of trials as on their initiation per se, and that to some extent the concerns may, in time, be overtaken by events. Whereas trial at the domestic level, whether employing charges framed in term s of domestic or international law, is conditional upon a favourable balance of forces within the State in question, trial in a post-conflict situation before an international tribunal, or before a domestic tribunal in a third country, is largely free of such considerations — though availability of defendants and witnesses and evidence generally will remain prime considerations. [30 ] This is not to say that such trials might not conceivably undermine a peace settlement, but it does suggest that such a possibility may be less likely — what would the point be of a military coup which could neither halt the instant trial nor prevent trials in the future? Similarly, the argument put forward by “anonymous” postulates a policy choice with regard to an ad hoc international tribunal in the course of peace negotiations.
Whatever view is taken of its merits (it has been heavily criticized), its applicability largely evaporates in situations in which a standing international tribunal with jurisdiction exists, created by a statute to which the State is a party. This is not to suggest that the initiation of the ICC, if and when it occurs, will provides a panacea and therefore bring the “peace versus accountability” debate to an end. Even if there is a high degree of ratification, there will inevitably be much manoeuvring in relation to the bringing of charges (whether before the ICC or before domestic tribunals), and there are logistical limits in any case on the volume of possible work which one body could be expected to handle. Furthermore, domestic tribunals offer advantages in terms of immediacy of the message they send, and accessibility by witnesses, which international tribunals cannot match. But it does point to the applicability of the debate becoming nar rowed: the establishment of the ICC will create some relatively fixed reference points, defining at least some new parameters in the accountability debate.
This possible reconfiguration of the legal matrix still leaves unanswered the question of the precise relationship between accountability and reconciliation, which is a slightly different issue from the calculus of the possible counter-productive effects of prosecution. Tackling this broader question in turn requires engagement with theories of the relationship between accountability and truth, both in the context of criminal trials and in the operation of truth commissions.
Trial and truths: the importance of legal procedure
Whereas much of the established literature on transitional justice envisages two sequential phases, i.e., the truth phase and the justice phase (fact-discovery followed by trial), more recent contributors such as Akhavan have championed the truth-eliciting role of the trial process itself, a view that has not gone unsupported. [31 ] The essence of this argument is that the ICTY will tell “the truth about the underlying causes and consequences of the Yugoslavian tragedy” through the exercise of prosecutorial discretion. This will create an “optimal” truth that “demonstrates that individuals — primarily leaders — bear liability for crimes, and that there is no justification for the collective attribution of guilt to entire ethnic groups”. The truth in question is to be “shared” between the various ethnic groups — just as the values imparted through general deterrence were to be “internalized”, as noted above — as providing “a moral or interpretive account … that appeals to a common bond of humanity transcending ethnic division”. [32 ] Reconciliation is the envisaged end result, as each ethnic group comes to realize that it was not an opposing group that was responsible for the violence, but r ather the leaders on both sides. International humanitarian law, with its developed insistence on individual criminal responsibility, seems well equipped to prove precisely this point, but before this new role can be endorsed, a number of possible weaknesses in this “trial-as-truth” argument must be explored.
The most obvious potential weakness is that it stands or falls on the validity of a particular theory, or set of theories, about ethnic conflict, which Akhavan labels “instrumentalism”. This holds that ethnic conflict comes about largely as a result of manipulation by self-interested power-elites, a truth that is to be proved by the prosecution of leaders — the “big fish”. Other theories, by contrast, focus on possible structural causes and historical roots of ethnic conflict, and look to addressing these causes as a route to reconciliation or at least to coexistence. Another possible related weakness is that of the compatibility of Akhavan’s suggested strategy with perceptions of due process. While focusing on ringleaders is clearly a good use of resources, the danger exists that what is itself a morally laudable enterprise may be seen as tainted, if it creates a perception that prosecution strategies are being manipulated in order to prove a particular (contested) theory of ethnic conflict.
There may also be problems with the notion of truth, or perhaps with the notion of the truth, in the face of what Cohen has referred to as the “postmodernist black hole”. [33 ] This of course raises issues which impact not simply on Akhavan’s views, but on any attempt to extract truth from the trial process, and even more forcefully on the project of truth commissions. And assuming that the search for particular truths is a legitimate enterprise, does the criminal trial offer the best or even a good vehicle for determining it?
Akhavan’s solution is twofold, relying on legal procedure t o provide the pieces of a factual mosaic and upon overarching theoretical insights to provide the principle for assembling them. Thus, in the words of Michael Ignatieff, the formal evidentiary procedures of tribunals such as the ICTY are to be seen as “conferring legitimacy on otherwise contestable facts”. [34 ] From this proven collection of particular facts, the “optimum” truth — responsibility of the big fish — is then to be inferred, extrapolated or constructed.
Not everyone has been as sanguine about the utility of the trial process as a vehicle for discovering truths, even amongst those who see the exercise as potentially worthwhile. Lawyers are not historians, and are concerned not with facts in the abstract, but with the fact-law nexus, with such facts as the rules of the legal world are geared to engage with. Thus Cohen questions whether the “conventional rituals of evidence” [35 ] of criminal law offer an effective way of obtaining knowledge and, with reference to the Klaus Barbie prosecution, raises the possibility (no more than that) that a trial strategy may obliterate or distort rather than serve the cause of truth-telling.
Clearly there is no easy answer to this question, and it may be that paradoxically, the weakness of the trial process in this regard is also its principal strength. At best, trial can conclusively determine a limited truth, since the truth to be decided is circumscribed both by substantive law and by legal procedure, e.g., by rules of evidence which exclude consideration of certain facts — and the only facts that are relevant are those which relate to a particular criminal offence, thus risking a double distortion. But this offers two advantages: the very rigour of procedural rules can produce findings of fact that “stick” because the trial experience resonates with historically validated collective notions of justice — “justice-as-fairness”. And the legal categorization of s uch facts as constituting a specific crime, particularly a heavily stigmatized crime (such as a war crime), may go a long way towards addressing the victims’ sense of hurt, combating strategies of denial and, to that extent at least, establishing a truth. Such denial strategies can take many forms, from crude dismissal of facts by Holocaust-deniers to more subtle conceptual failings.
A key to unlocking the truth-trial-law-reconciliation matrix may lie in the notion of “acknowledgement”, attributed to the New York philosopher Thomas Nagel. If the concept is unpacked, it can be seen to have elements of both acceptance and evaluation. At its core is an appreciation that the behaviour in question was wrong. There is a subjective recognition/acceptance of particular facts by the wrongdoers, by those associated with them, or by society generally, and an evaluation of these facts by reference to an objective standard, thus defining the wrongness — for instance recognition not only that a particular army unit carried out a specific killing, but that the killing was murder. The truth that is being acknowledged is constructed not in terms of fact-in-the-abstract but rather in terms of “fact as ”, with the “as” capturing the legal, and by extension the moral, culpability.
In this general context, international humanitarian law can provide important reference points for the construction of the “as”, whether through a straightforward application of the established law, or more pointedly, through its creative interpretation — though some would question whether any legal formulation can adequately encapsulate the full horror of mass atrocities, and others query whether such creative law-making is compatible with principles of Western legality. [36 ]
But to suggest, as Akhavan seems to do, that the trial process will produce the establishment or acknowledgement of a truth, which of itself will p roduce reconciliation, is perhaps to overstate the case. A more plausible argument may lie in regarding engagement with the concerns of victims as a prerequisite, or at least as a likely precursor to reconciliation — and thereby as contributing significantly to the stabilization of the post-conflict environment — and seeing trial as a route to such engagement. It could perform this function through punishing wrongdoers (thereby meeting a demand for accountability), and/or by a less ambitious truth-eliciting function which can yet help to acknowledge the enormity of the suffering which the atrocities in question have inflicted upon victims. To suggest, though, that criminal legal processes employing international humanitarian law or any other body of law have the capacity to contribute more directly to reconciliation, particularly by generating reconciliation themselves, is to assign responsibilities to such processes that they are never likely to fulfil.
Even firm advocates of the prosecution option as a route to truth recognize that trial is not without its limitations in that regard. Thus for Pakhavan “... the relative remoteness of the ICTY from the region means that it cannot be a substitute for local initiatives (including a commission of truth based on popular participation or public gestures of atonement by leaders)”. [37 ] In many respects the literature on truth commissions parallels that in relation to prosecution. [38 ] Popkin and Roht-Arriaza analyse the goals to be served by the commissions in terms of “creating an authoritative record of what happened; providing a platform for victims; recommending changes calculated to avoid future abuses; and establishing who was responsible and providing a measure of accountability for the perpetrators”. [39 ] Typically established, as Hayner points out, in periods of political transition, the motivation for thei r initiation lies in a desire to mark “a break with a past record of human rights abuses; to promote national reconciliation, and/or to promote or sustain political legitimacy”. [40 ]
The “authoritative record” referred to by Popkin and Roht-Arriaza is invariably conceived in terms of the general sweep of violations. Thus for Hayner the aim is to “paint the overall picture of certain human rights abuses, or violations of international humanitarian law, over a period of time”, [41 ] an approach which requires that strategic choices be made with regard to the focus of the investigation. But unlike Akhevan’s insistence on the use of prosecutorial discretion in the trial process to discover the “optimal” truth, the concerns of truth commissions are generally conceived not in terms of the correctness of particular (instrumentalist) theories of ethnic conflict, but relate rather to the somewhat more technical (almost statistical) exercise of selecting a representative sample for examination.
Inevitably, any selection risks distortion, but in the case of truth commissions the danger of distortion of the truth which Cohen suggests may be inherent in the trial process should be less apparent, since the strategic choice of subject matter for investigation is not restricted to those cases in which a specific perpetrator can be identified, and in which the suspect is physically available for trial. By the same token the information to be accessed is not limited by the evidential requirements of the criminal process.
International humanitarian law provides a particularly important reference point in this context for two reasons. The first is that it sets a standard by which the behaviour not only of a State’s security forces, but also that of non-State players can be assessed; the second is that this evaluation is tailored to the pre cise context most frequently advanced in justification or exoneration by those responsible for violations, namely the existence of some kind of war or armed conflict.
State and non-State actors
While in recent years international human rights law has been paying more attention to the legal consequences of the behaviour of non-State players, [42 ] it remains the case that international humanitarian law articulates a much more deeply rooted doctrine of individual responsibility. Returning to Hayner’s analyses of the role of truth commissions, it is likely that the legitimating function that she envisages can be achieved only where the commission itself achieves a kind of popular legitimacy. Achieving this legitimacy requires that truth commissions in post-conflict situations avoid any taint of political partisanship and be insulated against any suggestion that their operation amounts to the truth-eliciting equivalent of victor’s justice. At least part of the answer may lie in a willingness to examine violations from across the spectrum. Thus for instance, the Rettig Commission in Chile, [43 ] the Salvadorean Truth Commission [44 ] and the South African Truth and Reconciliation Commission [45 ] all investigated abuses not only by the State’s security forces, but also by armed opposition groups, with the Salvadorean and South African Commissions in particular drawing explicitly on international humanitarian law to assess the behaviour of non-State entities.
Such use of international humanitarian law challenges head on the self-justification most frequently advanced (or tacitly accepted) by both State and non-State players: “We did what we did because we were fighting a war against terrorism/a civil war/ a war of liberation.” Since humanitarian law, strictly applied, takes as its starting point the existence of an armed conflict of some sort, whether non-international or i nternational (including wars of national liberation [46 ] ), it facilitates coming to grips with the rhetoric of those taking part in the conflict and in a sense turning it back upon them. Thus an apparent escape route — the war as justification — can become a channel to some kind of accountability.
Even where the existence of an armed conflict in a technical sense may have been in doubt — it will almost invariably be contested — there is a growing body of opinion that the standards and principles articulated and expressed most sharply in international humanitarian law retain a validity in all conflict situations, irrespective of whether the legal threshold (armed conflict) has been reached. In this respect they may help to fill a gap left by international human rights law, which attempts to deal with conflict situations by means of t he heavily criticized derogation mechanism. [47 ]
The clearest example of this trend is the formulation in recent years of a number of codes of conduct and sets of principles which are based upon humanitarian standards but which also draw upon human rights law. Two somewhat different strategies can be identified: the first aims to devise a code specifically designed to apply in a sub-armed conflict environment: situations of “internal disturbances and tensions”; [48 ] the second aims to codify a set of standards to be applied irrespective of the categorization of the conflict. Progress on this later line can be traced from the adoption of the Oslo Statement on Norms and Procedures in Times of Public Emergency or Internal Violence (1987) [49 ] to the adoption of the Declaration of Minimum Humanitarian Standards [50 ] at Turku/Abo (1990), sometimes referred to as the Turku/Abo Declaration. In 1994, an amended version of the text was adopted [51 ] which received a degree of validation from both the United Nations [52 ] and the OSCE. [53 ]
While punitive trials must, by definition, apply hard law, truth co mmissions may have a considerably greater degree of flexibility in the standards they employ, precisely because their primary purpose is not a punitive one. Thus truth commissions may offer a route, which the trial process cannot follow, to the application of codified humanitarian principles, thereby increasing the reach of such principles in post-conflict situations.
While there is much to be gained by the application of international humanitarian law and standards to the activities of both State and non-State entities, the area is not without its pitfalls. Enhancing the legitimacy of truth commissions by casting the net widely is one thing, but a juxtaposition suggesting a facile equivalence is quite another. As Cohen writing on the parallel issues presented by mutual amnesties notes, treating State and non-State actions in the same way provides “a convenient symmetry to disguise very different social realities”. [54 ] In the same vein Popkin and Roht-Arriaza warn of the dangers of treating State and non-State violence as “functionally equivalent”, thereby producing a “distortion of the historical record”. [55 ] Specifically, they caution that the educational effects on the population as a whole could be lost in the notion that “terrible things happen in all war and are committed by all sides”. [56 ]
Clearly there is no easy answer to the questions which these issues raise. Perhaps the best that can be said is that while the use of international humanitarian law to assess the behaviour of armed opposition groups can advance the authoritativeness and therefore the legitimacy of truth commissions, this should not be done in a way which detracts from the focus on the responsibility of the State as the entity with primary responsibility for upholding international law. Of pivotal importance in this regard is the set of strategic choices to be made at the outset as to the legal and factual scope of the truth commission’s inquiry. The fact-situations investigat ed should be those calculated to reach the educational objectives signalled by Popkin and Roht-Arriaza. And it needs to made clear that while armed opposition groups can be held to have committed breaches of international humanitarian law, heed should be taken of Mera’s criticism that by characterizing actions of non-State players as human rights violations, the Rettig Commission undermined the educational role of its report. [57 ]
Truths and reconciliation
Whether the behaviour of State or non-State players is in question, more is at stake than simply the discovery of the truth. Thus Hayner, in a passage which again parallels the punishment literature, argues that “…the importance of truth commissions might be described more accurately as acknowledging the truth rather than finding the truth… Official acknowledgement of the facts outlined in a truth commission report by government or opposition forces can play an important psychological role in recognizing a ‘truth’ which has long been denied”. [58 ]
As with the case of prosecution, international humanitarian law can play an important role in defining the “as” in the process of acknowledgement. The finding that the behaviour of particular actors in a conflict should be thought of as a breach of international humanitarian law or standards (and therefore acknowledged as such) highlights the seriousness of the violation, and may help to address the victims’ sense of hurt.
This once again raises the question of possible routes to reconciliation. It was suggested above that to see prosecution as itself producing reconciliation may be to assign a responsibility to the prosecution function that it is unlikely to fulfil, and that it might be more realistic to see engagement with the concerns of victims (through prosecution) as paving the way for, rather than itself generating, reconciliation, t hough this inevitably leads on to the old calculation about the possible counter-productive effects of prosecution. Employment of international humanitarian law in the findings of truth commissions seems to offer a means of signalling the seriousness of what has taken place while at the same time sidestepping the potential counter-productive effects of prosecution, and therefore offering an alternative route towards reconciliation.
This still leaves open the question of the relationship between the findings of a truth commission and possible subsequent proceedings, whether criminal or otherwise. One possibility may lie in tying the process in with, or reformulating it as, a lustration mechanism, designed to bar violators from the old order from public service in the new, and perhaps involving some engagement with the issue of reparation. A variant may lie in adapting Braithwaite’s criminological model of “reintegrative shaming” which, Cohen speculates, might lead to “public shaming and denunciation that would answer the demand for “acknowledgment”. [59 ]
Another option is the South African model whereby full disclosure by a perpetrator before a truth commission may lead to amnesty, but this in turn raises the problem, addressed at the start of this paper, of the formal legality of amnesties. Yet another is to leave the issue of prosecution fully open, but this would probably make the truth-eliciting function of a truth commission much more difficult to discharge since there would be no incentive to perpetrators to participate in the process. But whichever route is taken, it is clear that international humanitarian law and standards have a role to play in defining yardsticks to be employed by either criminal tribunals or truth commissions. Thus even if there is a perception that a pragmatic decision whether to proceed by the trial or the truth commission route has to be made, this need not be equivalent to a decision as to whether international humanitari an law is employed or not, but rather as to the mode by which this body of law is drawn upon.
What this brief survey has hopefully shown is that international humanitarian law can make a much broader contribution in the post-conflict environment than traditional approaches might have suggested, concerned as they tended to be with the question of individual accountability almost as an end in itself. And this paper has been confined to an examination of the employment of humanitarian law in the trial process and by truth commissions, thus putting to one side possible contributions in lustration processes, and in relation to reparation.
Not all the arguments currently in the public domain for the utility of international humanitarian law in the trial process are equally compelling. While its rules provide a highly appropriate route to individual accountability, the deterrent value of trials employing international humanitarian law is at best unproven, and is likely to remain so, unless and until potential violators face a much greater probability of trial, whether at the domestic or the international level. Ultimately this ties in with a broader project calculated to lead to the generalized inculturation of humanitarian standards — a goal which should be central to strategy for the dissemination of humanitarian law.
As regards the question of trial as a route to truth, it is inevitably the case that the rigorous procedures of the criminal trial limit the kind of truth that can be determined, while also, potentially at least, underlining the validity of the truth that emerges. Here international humanitarian law can make a particularly useful contribution with regard to acknowledgement of the seriousness of violations. A finding that a particular act was a breach of the laws of war signifies the gravity of a crime much more effectively than a finding that domestic law has been breached.
Invariably, arguments for the utility of humanitarian law in the trial process come up against the “peace versus accountability” calculus. But while this has frequently been presented in terms of a stark “either/or” choice — trial or peace — a closer examination suggests that the question may be as much about timing and mode of trial as about trial in the abstract. There is a difference, in this regard, between domestic trial which is heavily conditional on a favourable balance of forces in the conflict situation, and trial in third countries and before an established international mechanism (such as the International Criminal Court will hopefully become). With the passage of time, if expectations of accountability for serious violations become stronger, it is likely that this calculus will lose some of its force, though it is always likely to remain lurking in the background.
Even in situations in which international humanitarian law is not employed in criminal trials in the post-conflict environment, it can still play an important role in the acknowledgement of truths about the conflict when drawn upon by truth commissions. Humanitarian law offers a specific advantage in this regard in that its reach extends much more clearly to non-State entities than does international human rights law. And because truth commissions need not be tied to well established law, there exists the possibility that the codified standards being developed in the interface between human rights law and humanitarian law can be drawn upon by truth commissions in a way which might not be possible in criminal trials. Overall, the picture that emerges is one in which international humanitarian law can play a much more significant role in the post-conflict environment than some of the more simplistic “peace versus accountability” formulations might suggest.
1 The Nuremberg trials have generated a vast body of literature. For some early writing see H. Ehard, “The Nuremberg Trial against the major war criminals and international law”, AJIL , Vol. 43, 1949, p. 223; R.W. Cooper, The Nuremberg Trial , Penguin Books, 1947;
V. H. Bernstein, Final Judgment: The Story of Nuremberg , Latimer House, 1947; R. K. Woetzel, The Nuremberg Trials in International Law , Praeger, 1962.
2 See A. C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials , Collins, 1989; R. H. Minear, Victors’ Justice: the Tokyo War Crimes Trial , Princeton University Press, 1971; P. R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East , 1945-1951, University of Texas Press, 1979.
3 See H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil , Faber and Faber, 1963; B. Sharpe, Modesty and Arrogance in Judgment: Hannah Arendt’s Eichmann in Jerusalem , Praeger, 1999; G. Hausner, Justice in Jerusalem , Nelson, 1967.
4 See T. J. Murphy, “Sanctions and enforcement of the humanitarian law of the four Geneva Conventions of 1949 and Geneva Protocol I of 1977”, Military Law Review , Vol. 103, 1984, p. 3, and R. Bierzanek, “The responsibility of States in armed conflicts”, Polish Yearbook of International Law , Vol. XI, 1981-1982, p. 93.
5 See generally, R. E. Vinuesa, “Interface, correspondence and convergence of human rights and international humanitarian law”, Yearbook of International Humanitarian Law , Vol. 1, 1998, p. 69; Y. Dinstein, “ Human rights in armed conflict: International humanitarian law ”, in T. Meron (ed.), Human Rights in International Law, Oxford University Press, 1984, p. 345; T. Meron, “The humanization of humanitarian law”, AJIL , Vol. 94, 2000, p. 239.
6 These developments are examined further below.
7 See N. J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes , 3 Vols., US Institute for Peace Press, 1995; I. P. Stotzky (ed.), Transition to Democracy in Latin America: the Role of the Judiciary , Westview Press, 1993;
A. James McAdams (ed.), Transitional Justice and the Rule of Law , 1997; A. Brysk, The Politics of Human Rights in Argentina: Protest, Change and Democratization , Stanford University Press, 1994.
8 See L. Huyse, “Justice after transition: On the choices successor elites make in dealing with the past”, Law and Social Inquiry , Vol. 20, 1995, p. 51; E. Blank enberg, “The purge of lawyers after the breakdown of the East German communist regime”, ibid. , p. 223; M. Los, “Lustration and truth claims: Unfinished revolutions in Central Europe”, ibid ., p. 117.
9 For a particularly insightful piece see S. Cohen, “State crimes of previous regimes: Knowledge, account ability and the policing of the past”, Law and Social Inquiry , Vol. 20, 1995, p. 7.
10 The literature on the ICTY is fast becoming unmanageable. For some recent writing (other than the sources listed elsewhere in the footnotes) see S. D. Murphy, “Progress and jurisprudence of the International Criminal Tribunal for the former Yugoslavia”, AJIL , Vol. 93, 1999, p. 57; K. D. Askin, “Sexual violence in decisions and indictments of the Yugoslav and Rwandan Tribunals: Current status”, ibid ., p. 97; J. R. Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda , 2nd ed., Transnational Publishers, 2000,
11 See V. Morris, V. and M. P. Scharf, The International Criminal Tribunal for Rwanda (2 Vols.), Transnational Publishers, 1998.
12 M. H. Arsanjani, “The Rome Statute of the International Criminal Court”, AJIL , Vol. 93, 1999, p. 22; P. Kirsch and J. T. Holmes, “The Rome Conference on an international criminal court: The negotiating process”, ibid ., p. 2; M. McAuliffe de Guzman, “The road from Rome: The developing law of crimes against humanity”, Human Rights Quarterly , Vol. 22, 2000, p. 335; D. McGoldrick, “The permanent International Criminal Court: An end to the culture of impunity?”, Criminal Law Review , 1999, p. 627.
13 Anonymous, “Human rights in peace negotiations”, Human Rights Quarterly , Vol. 18, 1996, p. 249.
14 F. Gaer, “UN-Anonymous: Reflections on human rights in peace negotiations”, Human Rights Quarterly , Vol. 19, 1997, p. 1.
15 A. K. Stinchcombe, “Lustration as a problem of the social basis of constitutionalism”, Law and Social Inquiry , Vol. 20, 1995,
p. 245, and Los, op. cit. (note 8).
16 See R. O. Weiner, “Trying to make ends meet: Reconciling the law and practice of human rights amnesties”, St. Mary’s Law Journal , Vol. 26, 1995, 857; N. Roht-Arriaza and L. Gibson, " The developing jurisprudence of amnesty”, Human Rights Quarterly , Vol. 20, 1998, p. 843; D. Cassel, “Lessons form the Americas: Guidelines for international responses to amnesties for atrocities”, Law and Contemporary Problems , Vol. 59, 1996, p. 196.
17 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Ar med Conflicts (Protocol II), 8 June 1977, Art. 6(5). Emphasis added.
18 Roht-Arriaza/Gibson, op. cit. (note 16), pp. 864-866.
19 T. Meron, “International criminalization of internal atrocities”, AJIL , Vol. 89, 1995, p. 554. See also The Prosecutor v. Tadic , Decision in the Appeals Chamber, ICTY, 2 October 1995, case No. IT-94-1-AR72, and Morris/Scharf, supra (note. 11).
20 For a critical examination of this view see T. J. Farer, “Restraining the barbarians: Can international criminal law help?”, Human Rights Quarterly , Vol. 22, p. 90.
21 Op. cit . (note 9), p. 10.
22 R. v. Bow Street Metropolitan Magistrates and Others , ex parte Pinochet Ugarte (No. 3) [1999 ] 2 All ER 97. See R. J. Wilson, “Prosecuting Pinochet: International crimes in Spanish domestic law”, Human Rights Quarterly , Vol. 21, 1999, p. 927.
23 Cohn, op. cit. (note 9), p. 42.
24 Op. cit. (note 20), p. 92.
25 P. Akhavan, “Justice in The Hague, peace in the former Yugoslavia? A commentary on the United Nations war crime tribunal”, Human Rights Quarterly, Vol. 20, 1998, p. 751.
26 Ibid. p. 731.
27 Huyse, op. cit. (note 8) , p. 51, and Cohen, op. cit. (note 9), pp. 22-24.
28 Ibid. p. 34.
29 Anonymous, op. cit. (note 13), p. 258.
30 J. Katz Cogan, “The problem of obtaining evidence for international criminal trials”, Human Rights Quarterly , Vol. 22, 2000, p. 404.
31 J. Pejic, “Creating a permanent international criminal court: The obstacles to independence and effectiveness”, Columbia Human Rights Law Review, Vol. 29, 1998, p. 291.
32 Ibid. , p. 741/2.
33 Cohen, op. cit. (note 9), p. 12. See also J. A. Lindgren Alves, “The Declaration of Human Rights in postmodernity”, Human Rights Quarterly , Vol. 22, 2000, p. 478.
34 M. Ignatief, “Articles of faith”, Index on Censorship , September/October 1996, quoted in Akhavan, op. cit. (note 25), p.770.
35 Cohen, op. cit. (note 9), p. 21.
36 M. J. Osiel, “Why prosecute: Critics of punishment for mass atrocity”, Human Rights Quarterly , Vol. 22, 2000, p. 118.
37 Akhavan, op. cit . (note 25), p. 742.
38 See P. Hayner, “Fifteen truth commissions – 1974 to 1994: A comparative survey”, Human Rights Quarterly , Vol. 16, 1994, p. 597; Truth Commissions: A Comparative Assessment , Harvard Law School Human Rights Program, 1997; M. Enselaco, “Truth commissions for Chile and El Salvador: A report and assessment”, Human Rights Quarterly , Vol. 16, 1994, p. 657; M. Popkin and N. Roht-Arriaza, “Truth as justice: Investigatory commissions in Latin America”, Law and Social Inquiry , Vol. 20, 1995, p. 79.
39 Popkin/Roht-Arriaza, op. cit. (note 38), p. 80.
40 Ibid. , p. 604.
42 This has occurred through the development of the doctrine often referred to (perhaps misleadingly) as Drittwirkung or third party effect. See D. J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on Human Rights , Buttersworth, London, 1995, pp. 19-22, and A. Clapham, Human Rights in the Private Sphere , Clarendon Press, Oxford, 1963, pp. 178-244. For a discussion of the parallel jurisprudence of the Inter-American Commission on Human Rights, see Weiner, op. cit. (note 16).
43 Popkin/Roht-Arriaza, op. cit. (note 38), p. 85 and pp. 98 f.
44 Ibid. , pp. 86-89, and pp. 98 f.
45 J. Sarkin, “The trials and tribulations of the South African Truth and Reconciliation Commission”, South African Journal of Human Rights , 1996, p. 617; J. Sarkin, “The Truth and Reconciliation Commission in South Africa”, Commonwealth Law Bulletin , Vol. 23, 1997, p. 528; K. Asmal, L. Asmal and R. Suresh, Reconciliation Through Truth: A Reckoning of Apartheid’s Criminal Governance , 2nd ed., David Philip, Cape Town, 1997.
46 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Art. 1(4).
47 For some criticisms see J. Fitzpatrick, The International System for Protecting Rights During States of Emergency , University of Pennsylvania Press, 1994; F. Ní Aoláin, “The emergency of diversity: Differences in human rights jurisprudence”, Fordham International Law Journal , Vol. 19, 1995, p. 101; O. Gross, “ ‘Once more into the breach’: The systemic failure of applying the European Convention on Human Rights to entrenched emergencies”, Yale Journal of International Law , Vol. 23, 1998, p. 437.
48 See H. P. Gasser, “A measure of humanity in internal disturbances and tensions: Proposal for a code of conduct”, IRRC ,
No. 262, January-February 1988, p. 38.
49 The text of the Oslo Statement is included in the pamphlet Declaration of Minimum Humanitarian Standards , Abo Akademi University Institute for Human Rights, 1991, pp. 13-16.
50 The text of the Declaration is appended to T. Meron and A. Rosas, “A Declaration of Minimum Humanitarian Standards”, AJIL ,
Vol. 85, 1991, p. 375.
51 The text is appended to A. Eide, A. Rosas and T. Meron, “Combating lawlessness in gray zone conflicts through minimum human itarian standards”, AJIL , Vol. 89, 1995, p. 215.
52 In 1994 the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities decided to transmit the Declaration to the Commission on Human Rights with a view to its adoption (Res. 1994/26).
53 The States participating in the Budapest review meeting of the OSCE (1994) decided to “emphasize the potential significance of a declaration on minimum humanitarian standards applicable in all situations and declare[d ] their willingness to actively participate in its preparation in the framework of the United Nations”. Budapest Decision VIII on the Human Dimension, quoted in op. cit. (note 51), p. 215.
54 Cohen, op. cit. (note 9), p. 35.
55 Ibid. , p. 98.
57 J. Mera, “Truth and justice in the democratic government”, quoted in Roht-Arriaza, op. cit. (note 38), p. 99.
58 Hayner, op. cit. (note 38), pp. 607-8.
59 Cohen, op. cit. (note 9), p. 36.