Are War Crimes Trials Effective?

Upcoming war crimes trials for former Bosnian Serb leader Radovan Karadzic and Sudanese President Omar Hassan al-Bashir have resurfaced the debate over the efficacy of international criminal tribunals. Two experts on the International Criminal Court weigh in.

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LYNN NEARY, host:

This is Talk of the Nation. I'm Lynn Neary in Washington. Two developments last week provoked mixed reactions from the world of international law. After nearly 13 years in hiding, former Bosnian Serb leader, Radovan Karadzic, was arrested for war crimes. He will face trial before the International Criminal Court in The Hague. And last week, the ICC's chief prosecutor requested an arrest warrant for Sudanese President Omar al-Bashir for war crimes, crimes against humanity, and genocide. It is the first time charges have been brought against the sitting head of state in the history of the International Criminal Court.

Many applaud the news that Karadzic will face trial and hope that it will give credibility to international tribunals, which have long struggled to bring the worst war criminals to justice. But there's some question as to whether it was wise to indict Bashir while the conflict in Darfur continues. He may not see the point of ending the fighting with an indictment hanging over his head. Others point out that the indictment might have a positive effect, bringing the moral weight of the international community to bear on the situation.

Later in the hour, your letters and a correction about credit unions. But first, are war-crimes trials effective? And which comes first, peace or justice? We especially want to hear from those who have been victims of crimes - war crimes. Tell us your story. Our number here in Washington, 800-989-8255, and the email address is talk@npr.org. You can also send a comment to our blog. It's at npr.org/blogofthenation. Joining us now from our bureau in New York is Diane Orentlicher. She is a professor of international law at American University. Diane, so good to have you with us. Thanks very much for joining us.

Professor DIANE ORENTLICHER (International Law, American University): It's good to be here. Thank you.

NEARY: Let me start off with the indictment against President Bashir. Some have questioned whether or not it was wise to indict him while the war is still going on. Why is that? What are those concerns about?

Prof. ORENTLICHER: Well, the concern that's been articulated is that if he's facing an indictment, he may not have an incentive to do everything he can to bring peace in Darfur. He's got nothing left to lose, the argument goes. And the problem with that, if I may, is that there isn't, at this point, signs that a peace process is going anywhere. So, while that may, as a general matter, be a legitimate concern, in the current landscape, it's not a particularly compelling argument. It would be more compelling if there were a viable peace process underway that were put in jeopardy by this indictment.

NEARY: Of course, there's also an argument to be made that the indictment will, in fact, help bring an end to the conflict by bringing the moral weight of the international community to bear on the conflict.

Prof. ORENTLICHER: Right. The other argument on the other side is that this might sort of provide a moral jolt to a situation that's been going on and on in a hopeless direction, and that this may provide an incentive for more effective cooperation by the Sudanese government. There's also some historical weight behind that argument. Every situation, of course, is different, but we have been here before. There have been times in recent years when different international courts indicted sitting heads of state at a time when their countries were in the midst of violent armed conflict, and every time we've heard a similar argument. And the response in practice has been different than our worst fears, in fact, quite the opposite.

If you'll recall when Slobodan Milosevic was indicted, the United States and other NATO countries were still engaged in a war with Yugoslavia over its repression in Kosovo, and diplomats worried, just as they do now with the indictment of Bashir, that this would prolong the conflict. Quite the opposite happened after the conflict had raged without any sign of an end for several months. Very soon after Milosevic was indicted, he surrendered and the fighting stopped.

Similarly, Charles Taylor was president of Liberia at a time when a very violent armed conflict had been going on and on and on. His indictment by another international court was disclosed at a time when he was on his way to peace negotiations. And once again, there were very understandable concerns about what this would do to the peace process. What ultimately happened was, relatively soon after that happened, Charles Taylor stepped down as president. He received asylum in Nigeria for awhile and ultimately found his - himself on his way to The Hague where, he is now on trial.

NEARY: What about Mr. Karadzic, though? For - he was not arrested while the war was going on, and I assume he could have been - I mean, certainly he was more obvious. He was more evident. He was more present on the world scene at that time. Was that a deliberate decision? If so, why? And…

Prof. ORENTLICHER: You know, that's a very good point, because we now have to remember, we have to kind of put our minds back. He's been on the lam for so long it's hard to remember the circumstances. But actually, very similar concerns were raised when he was first indicted. He was indicted in 1995 for the first time before there was a peace in Bosnia, before peace in court had been reached, which did happen later in the year.

One of the effects of his indictment was that he was marginalized as a negotiator. He had previously served in negotiations with U.N. mediators, European Union mediators, and he was no longer a credible negotiator after his indictment. Richard Holbrooke, who conducted the negotiations that led to a peace agreement in Dayton at the end of 1995, has publicly said many times that had Karadzic been his negotiating partner, he wouldn't have been able to secure a peace deal. So, in this instance, the indictment, if anything, contributed to a peace agreement.

Once the peace was established, NATO forces in Bosnia had the authority to arrest him and other war criminals, and made a judgment that it was too risky, that it would be destabilizing. You know, I wasn't in the position of having to mount an operation, so it's easy from afar to be critical. But in retrospect, I think many people, including people who served in the armed forces at that time, think that they made a miscalculation in allowing him to remain free when they could have arrested him.

He was a destabilizing force in Bosnia for quite some time. Eventually, he went underground and was no longer the act of destabilizing force he was in the early years after the Dayton settlement. But again, I think, if anything, history showed in that instance that indictment did not hurt the cause of peace, but in fact, advanced it.

NEARY: But you know, when so much time goes by, it brings its own set of problems. I mean, we're now seeing, you know, a protest in support of Karadzic in Belgrade. I mean, you know, is his arrest now then bringing up these old wounds? And how does that help the situation?

Prof. ORENTLICHER: You know, Lynn, my impression, or my response to that question, is very much shaped by interviews I've done in recent years with victims of the crimes that have been advanced against Karadzic in Bosnia. And I've been doing a study for an organization called the Open Society Justice Initiative exactly looking at the question, what impact have these tribunals had?

And in Bosnia, what I found was that, not surprisingly, there are a lot of mixed feelings about this justice process. But victims on the whole very much wanted to see the people they thought responsible held to account, and the two men, who were for them the face of evil, were Radovan Karadzic and Ratko Mladic, and the latter of whom is still at large. And many, many people expressed a sense of kind of a continuing assault by the international community, and emotional assault, of course, that these two men were not apprehended.

And what people expressed to me was the sense that if the world really cared, they could have arrested these two men. And how could they let them remain free for 13 years after they were charged with genocide? You know, that said, victims experience a lot of different emotions. There's a lot of anger at the tribunal for many things, including the point I just made, which is that people can't help blaming the tribunal for the fact that these men were at large.

And I would often ask victims after they expressed these frustrations and disappointments, well, in light of this, in light of what you've just said to me, do you think it was a mistake to create these tribunals? And they would look at me as though I had asked a mysterious, confounding question, and they would sort of respond along these lines. They'd say, do you understand what we went through? Do you know what it was like in Omarska, which was a notorious concentration camp? If this happened to you, of course you would want justice. And so, you know, I think you're going to hear, and have, heard a range of different reactions. Victims say, what took you so long? Too late. But they also say, you know, thank God, this person is now going to have to answer before a court.

NEARY: A couple of questions come to mind. These are big questions that we're going to pursue during the course of this whole discussion, but the first one, I guess, is, you know, that at the heart of what we're talking about is, you know, what do you pursue first? Do you pursue the peace first? Or do you pursue the justice first? Or does it have to be an either/or?

Prof. ORENTLICHER: Well, you know, we do make decisions. In the case of Darfur, the Security Council, whose principal responsibility is to maintain and restore international peace, made a judgment that it would help advance the cause of peace to refer the atrocities being committed in Darfur to the International Criminal Court. So, it's helpful to remember that, that the states that have the greatest responsibility for promoting peace decided that the time was right to bring justice into the picture.

And so, you know, just to keep some perspective on this, it wasn't that we have an independent prosecutor who injected himself into a peace process, quite the opposite. These are hard, very hard dilemmas. There may be times when you have to wait for justice. But I suppose the point that I think is important to remember is that in times past when we have faced this dilemma, when the international community has committed itself to pursue justice as well as peace, it has found a way to resolve the two so that it doesn't have to choose one or the other.

NEARY: Diane Orentlicher is professor of international law at American University, and we're talking about the effectiveness of international war-crimes tribunals. And coming up, we're going to be discussing working for peace before justice. We are taking your calls at 800-989-8255. Of course, you can send us an email, and the address is talk@npr.org. Diane's going to stay with us and we hope you will, too. I'm Lynn Neary. It's Talk of the Nation from NPR News.

(Soundbite of music)

NEARY: This is Talk of the Nation. I'm Lynn Neary in Washington. We're talking about war-crimes indictments this hour. Bosnian Serb leader, Radovan Karadzic, was arrested last week. He'll face trial before the International Criminal Court in The Hague. And Sudan's president, Omar Hassan al-Bashir, was indicted last week for war crimes. The high-profile cases have started a debate. From a human-rights perspective, is it best to work towards peace or justice?

I'm talking with Diane Orentlicher this hour. She's a professor of international law at American University, and we want to hear from you. Particularly if you have been a victim of war crimes, tell us your story. Our number here in Washington, 800-989-8255. The email address, talk@npr.org, and of course, you can comment on our blog, npr.org/blogofthenation. We're going to take a call now from Steve. And Steve is calling from Eau Claire, Wisconsin. Hi, Steve.

STEVE (Caller): Hi. How're you doing?

NEARY: Good, thanks.

STEVE: My - I have a short, short comment. I think war-crimes tribunals still very effective, and I'm glad that they finally rounded Karadzic up, because, you know, clearly some of the things he's done have been horrific. But one of the problems is how different sides that have been victimized perceive the situations. Just a week ago, a fellow who was a Bosnian Muslim - I'm sure your guest would recognize his name, Naser Oric - was - had all his charges dropped by The Hague. And this fellow, who was a commander of the Muslim forces in Srebrenitza before the Serbs committed their crime, over two, two and a half years, led forays while he was protected by the safe area it controls into the countryside, and killed about two and a half, 3,000 Serb civilians.

Filmed them, did videos of beheadings, and wound up showing them in Srebrenitza bars for entertainment. These have been documented by Western reporters. So, from the Serb perspective, it's a litmus - Oric was a litmus test. And I think it's very strange how one side can celebrate their killer as a hero, and the other side, you know, feels differently. I find it very disturbing. Even though my family are all refugees, and from northwest Bosnia, and they're Bosnian Serbs, I still am glad that Karadzic was arrested.

On the other hand, I'm greatly disturbed that Oric was released. And the evidence kept disappearing, and witnesses kept disappearing, and I'm sure your guest knows about him and the horrific things he did - and videotaped them for entertainment. This is very, very - makes things problematic in terms of justice and (unintelligible) and war-crimes tribunals. Thanks.

NEARY: Professor Orentlicher, what's your reaction to that?

Prof. ORENTLICHER: Well, first of all, I am not familiar with the reports that victims were videotaped and that those tapes were watched for pleasure. The Naser Oric case is, however, quite controversial in Serbia. Just for the benefit of your listeners who aren't familiar with this case, Oric, as Steve indicated, was the commander of Bosnian forces in Srebrenitza. He was charged for abuses committed against Serbs principally in a detention center by forces that the prosecutors said were under the command of Oric.

At first, Oric was convicted and sentenced to two years in prison, and this was troubling to many Serbians who thought that, if he committed serious abuses against Serbs, and they were serious enough to be prosecuted, how could they be worth only two years imprisonment? Either you commit war crimes and you deserve serious punishment, or you don't deserve to be prosecuted. But a two-year sentence seemed derisory to them. On appeal, Oric was acquitted because of mistakes made by the trial chamber in his judgment. And this happened quite recently, and it's a very sore point for many Serbians, and they're angry at the tribunal.

I don't - you know, it's - I'm not quite sure what the lessons of this are other than, for me, I think it's very important for the tribunal to understand that every single case it undertakes has to be prosecuted as well as possible. Hopefully, with the passage of time, people will understand that a court has to do what it has to do, and if the evidence isn't there to convict, it can't convict someone. But a prosecutor has to make sure that - you know, there are no cases they can afford to prosecute other than as well as they can. It has real consequences.

STEVE: Thank you very much. It is Bill Schiller, Toronto Star, who wrote the story.

NEARY: All right. Thanks very much for that call, Steve. We're going to bring in another guest now. Joining us from his hotel room in Palm Beach, Florida, is Mark Drumbl. He's a law professor at Washington and Lee University and the author of "Atrocity, Punishment, and International Law." Good to have you with us, professor.

Dr. MARK A. DRUMBL (International Criminal Law, Washington and Lee University School of Law): Good to be on the show. Thank you.

NEARY: Well, what is your view of the decision to charge the president of Sudan during an ongoing conflict? What's your take on that, first of all?

Dr. DRUMBL: My take on it is that we need to be modest and careful about the goals that international criminal law aims to achieve. Obviously these trials, and indictments, as a prelude to trial, are part of a justice equation. But at the end of the day, massive structural violence is extremely complex, and to suggest simple solutions is unrealistic. And one major concern that I would have is one of overreach. We can't really think that by indicting, and hopefully, ultimately, by prosecuting and punishing, that we've necessarily achieved justice or done much to facilitate the movement of societies towards a transition to sunnier or happier days.

And I think one subject that hasn't come up much, if I may say so, in the discussion so far is, for example, the Rwandan case. I think when we think of international criminal justice and its implementation, we need to realize that it's very contextual, and different societies have very different responses to international justice. And I think it would be interesting to open up a conversation that moved beyond these, sort of, broader frameworks to thinking about issues of, first, resource allocation. Trials are extremely expensive. I know it's often not all that endearing to introduce these sorts of nuts-and-bolts cost questions to abstract notions of justice, but that is how these institutions also, to some degree, need to be assessed. They're very expensive and they're very time-consuming.

And a second point I think is an important subject matter for conversation is how investing in criminal trials - in particular, adversarial and often deeply westernized criminal trials - may divert attention away from other mechanisms of justice that populations on the ground in victim communities in diverse regions of the world may actually find resonate much more deeply with them.

NEARY: And are you thinking of something like the Truth and Reconciliation Process that went on in South Africa? Is that the kind of thing you're talking about or...?

Dr. DRUMBL: Yeah. I mean, I do think that's one modality in which notions of qualified amnesty, a public process in which individuals came forth and told a story, served a purpose that, in many ways, was quite valid. And my concern is one where the extent to which criminal trials dominate the conversation about an effective - being an effective mechanism to transition societies towards better days, to the extent that that takes off the table other issues, other methods, and other methodologies, I think we're sort of selling ourselves short. The technique of criminal law may simply not be the language of justice for all people everywhere, and lawyers can't lose sight of that.

NEARY: Let me ask you about Rwanda, because you were involved in the Rwandan war-crimes trials. Did you feel they were effective? Did people there feel justice had been done?

Dr. DRUMBL: I think one of the major problems in Rwanda relates to a phenomenon that I would call the externalization of justice. In other words, the method of trials used to secure justice often was lost on ordinary Rwandans owing to geographic distance, language barrier, and simply the daily grind and reality of life in a post-conflict society. We have to understand that for many Rwandans following genocide, one of the major issues was just being able to make it to the next day, in terms of sustaining a household, rebuilding. And to that extent, forms of justice that are more reparative or restitutionary in nature may speak much broadly - more broadly to that particular population.

Another issue with international criminal trials that I think we need to be sensitive to is the reality that we may perceive these trials as neutral and as impartial. But to Rwandans, powerful nations and the United Nations are not exactly perceived as neutral entities. These are entities that failed to prevent the genocide, failed to intervene on a timely basis. And I think there's a similar dithering that is going on in the Sudanese context, although it is an accurate statement that the Security Council has moved forward on this than to close the loop.

The indictment does speak to some degree towards forward progress. But I think we need to be very realistic about what these trials can achieve. And to fail to appreciate that victims may want different things, and that victims may not perceive an adversarial, Western criminal trial as tantamount to justice are limitations that we just have to accept. And I think if we accept them, we'll achieve a better justice outcome.

NEARY: We are talking about prosecuting war crimes. My guests are Diane Orentlicher and Mark Drumbl. We're going to take a call now from Russ, and Russ is calling from Anoka, Minnesota. Hi, Russ.

RUSS (Caller): Good afternoon. This is rather mundane, but your speakers and maybe correspondents think that everybody's on the same page, and that is, what is the definition of a war crime? Is it synonymous with crimes against humanity? Is there a statute of limitation? And where could one read up on this topic?

NEARY: All right. Let me start out by asking you, Diane. Is there a specific definition? And this also gets into what charges should be brought, because I know, in reading about this leading up to the show, I know there's questions about whether prosecuting somebody on a charge of genocide - if you should go for a genocide charge, because it's very hard, for instance, to prosecute that.

Prof. ORENTLICHER: Hm, sure.

NEARY: So, maybe you could - let's get our definitions down. Maybe you can help with that.

Prof. ORENTLICHER: Sure, well...

NEARY: Thanks very much for that question, Russ.

Prof. ORENTLICHER: Well, first, just by way of background, it may be useful to know that the international courts that we're talking about on this program have very limited jurisdiction. They all, more or less, prosecute three crimes. One is - or sets of crimes. One is war crimes, which are very serious violations of the international rules that govern how you carry out armed conflict. And these rules, for the most part, try to protect innocent civilians from being victims of war. They try to ensure that targets of war are other combatants. And they try to make sure that combatants who are no longer a threat to you, because they're injured or in captivity or so forth, aren't the target of violence. So, that's one set of crimes, war crimes.

Crimes against humanity is another core charge that's available to prosecutors for all these courts. And in essence, these are crimes that involve very serious, inhumane acts, like torture or rape, committed in the context of an attack against a civilian population. And this charge was, in some ways, the centerpiece of the human-rights charges that were brought by the Allies at Nuremberg against the surviving Nazi leaders. We didn't yet have the Genocide Convention. And it was crimes against humanity that sort of captured the mass atrocities we associate with the Nazis in those prosecutions.

And then there's genocide, which, as Lynn just indicated, is in many ways sort of the most morally potent charge a prosecutor can bring. There's really quite a significant stigma associated with this charge. It happens to be notoriously hard for a prosecutor to prove charges of genocide. The essence of the crime is that certain acts, such as killing members of an ethnic group, are carried out with the very specific intent of destroying that group either entirely or killing - destroying a substantial part of that group.

NEARY: All right. Thanks very much for your call, Russ. And he also asked about the statute of limitations, and I don't know, Mark Drumbl, maybe you could address that. Is there a statute of the limitations? Because it does seem to take a very long time sometimes to bring people to justice, to bring war criminals to justice.

Dr. DRUMBL: Absolutely. There's not, other than, as Diane artfully pointed out - the International Criminal Court will only have temporal jurisdiction after its entry into force in particular for the state in question. I think the interesting angle on this, of course, is, as Diane pointed out, the potency of genocide as a particular charge and as a particular conviction, and I think in the Sudanese case, it's not entirely self-evident the extent to which it would be successful to prove to the satisfaction of the court that genocide actually was committed.

In the Rwandan case even, in the early jurisprudence, it was fairly complicated to assess the extent to which the two groups in question, Hutu and Tutsi groups, actually were ethnic groups. Genocide can only be undertaken if the group in question is targeted on the basis of nationality, race, ethnicity, or religion. And in that particular case, in early jurisprudence, it had to be established that these two groups were in fact ethnic groups, given the deep cultural, linguistic, religious commonalities that were shared. And I guess, to push the argument...

NEARY: If I can interrupt you one second...

Dr. DRUMBL: Sure.

NEARY: I just want to remind our listeners that you are listening to Talk of the Nation from NPR News. Go ahead.

Dr. DRUMBL: And I think it's important to assess the extent to which this could be provable in this particular context, but also why, perhaps, genocide is such a potent charge, and to some degree in the Rwandan case, dithering over whether or not genocide was actually happening, which is a prerequisite for preventative duties under the Genocide Convention to be triggered, actually had quite a delaying effect.

And maybe it would make some sense, and there are some proposals out there to not necessarily define these crimes as entirely separately but to view them as a tantamount to atrocity, and issues of mental intent, discriminatory intent, eliminationist intent, could perhaps go more to sentencing. And just to close out Russ's question, in the event that he would have an interest in the specific language, it's - I'd refer him to Articles VI, VII and VIII of the Rome Statute of the International Criminal Court. And he can get the details of these three crimes from there.

NEARY: All right. Thanks so much for joining us today, Mark.

Dr. DRUMBL: Absolutely. Thank you very much.

NEARY: Mark Drumbl is a law professor at Washington and Lee University and the author of "Atrocity, Punishment, and International Law," and he joined us by phone from his hotel in Palm Beach, Florida. And Diane, I just wanted to ask you to respond to some of what he said, and particularly - we just have about a minute left - but do war-crime tribunals preclude the idea of a Truth and Reconciliation? Or is it one or other? Or is there a way that those two things could work together or...?

Prof. ORENTLICHER: Well, that's really an easy question. They absolutely don't preclude one another. It's a false dichotomy to suggest that you have to make that choice. And in fact, almost no country that has had a truth commission has foreclosed the possibility of doing prosecutions as well.

NEARY: And I imagine you would argue that tribunals do, in fact, bring - that they do really bring justice, do you believe that, to the victims?

Prof. ORENTLICHER: I would say that they can. It's a hugely challenging thing. I do strongly agree with Mark that we have to have reasonable expectations. Tribunals can't do everything. We're setting up a lot of people for disappointment if we make too strong claims that simply are untenable. But for many people, they're part of the response to mass atrocity.

NEARY: All right. Thanks so much for joining us today, Diane.

Prof.. ORENTLICHER: My pleasure.

NEARY: Diane Orentlicher is a professor of international law at American University. She joined us from our bureau in New York. Coming up, letters. We'll hear the answer Ambassador Richard Holbrooke didn't get a chance to finish last week. Plus, a correction, and even more answers on credit unions. That's next. I'm Lynn Neary. It's Talk of the Nation from NPR News.

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