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Stay the Hand of Justice? Evaluating Claims That War Crimes Trials Do More Harm Than Good

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Stay the Hand of Justice? Evaluating Claims That War Crimes Trials Do More Harm Than Good Mark S. Martins & Jacob Bronsther Stay the hand of justice? Evaluating claims that war crimes trials do more harm than good Article (Published version) (Refereed) Original citation: Martins, Mark S. and Bronsther, Jacob (2017) Stay the hand of justice? Evaluating claims that war crimes trials do more harm than good. Daedalus, 146 (1). pp. 83-99. ISSN 0011-5266 DOI: 10.1162/DAED_a_00424 © 2017 American Academy of Arts & Sciences This version available at: http://eprints.lse.ac.uk/69165/ Available in LSE Research Online: February 2017 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This document is the author’s final accepted version of the journal article. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. Stay the Hand of Justice? Evaluating Claims that War Crimes Trials Do More Harm than Good Mark S. Martins & Jacob Bronsther Abstract: An enduring dilemma in war is whether and how to punish those responsible for war crimes. In this essay, we analyze the most frequent criticisms made by war crimes trial skeptics, including the claims that such trials endanger prospects for peace by encouraging enemies to continue fighting, that they achieve only “victors’ justice” rather than real justice, and that, in any event, they are unnecessary due to the exis- tence of more effective and less costly alternatives. We conclude, in accordance with a “moderate retrib- utivism,” that when carried out consistently with established law and procedure, and when not dramati- cally outweighed by concerns that trials will exacerbate ongoing or future conflicts, prosecutions are a le- gitimate, and sometimes necessary, response to violations of the laws of war and international criminal law more broadly. At St. James’s Palace in London during January of 1942, representatives of the governments whose countries had been occupied or were under assault from Germany met to consider fundamental ques- tions that world war and Hitler’s still waxing aggres- MARK S. MARTINS is a Brigadier sion had pressed upon them. To the threshold jus ad General in the U.S. Army and has bellum inquiry of whether fighting the war was justi- been Chief Prosecutor under the fied, they responded without equivocation. The Na- Military Commissions Act since zis’ advancing columns on three continents and re- 2011. The views expressed in this gime of terror against diverse civilian populations article are his own, and should not left them no choice but to take up arms. To the jus in be attributed to the U.S. Depart- ment of Defense or to the U.S. bello question of whether their own modes of fight- Army. ing should be constrained by morality and law, the response at St. James’s Palace was, again, unequivo- JACOB BRONSTHER is a Ph.D. cal. Although the desperate struggles to come would candidate studying criminal law theory in the Department of Law severely test the Allies’ unilateral commitment to re- at the London School of Econom- straints on warfare, the representative from occu- ics and Political Science. He is a pied Belgium expressed the common sentiment that lawyer and Fulbright Scholar. “no matter how severe the necessities of war may be, © 2017 by the American Academy of Arts & Sciences doi:10.1162/DAED_a_00424 83 Stay the civilized nations have, nevertheless, rec- of St. James’s Palace in his opening state- Hand of ognized and proclaimed rules which ev- ment: “That four great nations, flushed Justice? ery belligerent ought to obey.”1 with victory and stung with injury, stay Perhaps more remarkable at this dire the hand of vengeance and voluntarily point in the conflict was how the Allies an- submit their captive enemies to the judg- swered the emergent jus post bellum ques- ment of the law is one of the most signif- tion of what should be done with those icant tributes that Power has ever paid to responsible for the aggression, imprison- Reason.”5 Whether that trial, and the many ments, mass expulsions, hostage execu- thousands of others held following World tions, and massacres that had brought so War II, truly held vengeance at bay and paid many disparate peoples under attack to- tribute to reason is surely one of the essen- gether in solidarity. It was the signature tial tests of their worth. But there is no dis- contribution of the Declaration of St. pute that trials of alleged war criminals James’s Palace that “in order to avoid the were widely supported in the immediate repression of these acts of violence sim- aftermath of the war, even if they had their ply by acts of vengeance on the part of the prominent detractors. Stay the hand of general public,” the assembled nations vengeance? Emphatically yes. But not the “would place among their principal war hand of justice. And failing to hold trials of aims the punishment, through the chan- those responsible for war crimes would of- nel of organised justice, of those guilty of fend justice, this response insisted. or responsible for these crimes, wheth- Such momentum for war crimes trials is er they have ordered them, perpetrated rare. Consider the international response them or participated in them.”2 The war half a century later to atrocities occur- we have waged reluctantly but necessarily ring on some of the same European lands is a just war, they declared, and despite the once again engulfed in armed conflict. In depravity of our enemies, we will aspire to May 1992, Bosnian Serb President Radovan fight it humanely. Moreover, once we have Karadžić presided over the execution of prevailed, we will punish war criminals thousands of civilians near the town of through the channel of organized justice. While Brčko in Bosnia-Herzegovina,6 only fif- there would yet be formidable opponents ty miles from Sabac in Western Serbia, of such an approach–among them British where in October 1941, German Field Mar- Prime Minister Winston Churchill, who shal Wilhelm List ordered the execution of preferred summary execution of the war’s thousands of concentration camp prison- masterminds upon capture,3 and United ers.7 Brčko and Sabac are fifty miles apart States Supreme Court Chief Justice Harlan in the former Yugoslavia, sordidly linked Fiske Stone, who derided postwar prosecu- by the programs of organized mass murder tion as a “lynching party”4–the unequiv- each hosted, fifty years apart. Yet interna- ocal and unified early commitment at St. tional alarm over the late twentieth-century James’s Palace to holding war crimes tri- Brčko massacre and related war crimes only als furnished enough momentum to carry slowly developed into resolve to hold of- the day over doubters of the concept once fenders accountable. the conflict had formally ended. When concerted action finally came, war Supreme Court Justice Robert Jackson, crimes trials were seen by many as doing chief prosecutor for the United States in more harm than good. In August of 1995, the trial of major war criminals before the United States diplomat Richard Holbrooke International Military Tribunal at Nurem- confronted harsh questioning over wheth- berg, would come to echo the Declaration er the indictment of Karadžić and other se- 84 Dædalus, the Journal of the American Academy of Arts & Sciences nior figures by the International Criminal guide this balancing analysis, concluding Mark S. Tribunal for the Former Yugoslavia would that when they are carried out in accor- Martins & Jacob harm prospects for peace. “Do you think dance with established law and procedure, Bronsther it’s helpful to call [Karadžić] a war crim- and when not dramatically outweighed by inal?” Holbrooke recalled one aggressive concerns that trials will exacerbate ongo- journalist baiting him. “Do you think it’s ing or future conflicts, war crimes prosecu- helpful in the negotiations?” Recalling tions are a legitimate response to atrocities. “the days of [Nazi extermination camp overseer Heinrich] Himmler,” Holbrooke Implied in the skepticism that Holbrooke responded that “a crime against humanity encountered is the claim that war crimes of the sort that we have rarely seen in Eu- trials encourage leaders to continue fight- rope” was “simply a fact and it has to be ing. If losing a war means you will be pros- dealt with. I’m not going to cut a deal that ecuted–goes the argument–then you will absolves the people responsible for this.”8 be less likely to accept defeat. Put different- Even if his private views may have been ly, the first criticism we will consider is the more pragmatic, Holbrooke’s public re- view that war crimes trials create perverse sponse–both uncompromising and righ- incentives for leaders to commit further war teous–has much to commend it. But with- crimes, or at least prolong conflict, so as out more, the simple and intuitive moral to ward off defeat and avoid prosecution. position that we should implement war This claim is difficult to evaluate, and crimes trials often fails to convince the dis- what little empirical study there has been tracted policy-makers responsible for facil- proves neither that fear of punishment re- itating such processes, particularly when duces criminal behavior nor that war crim- sophisticated rationales are cited for fore- inals are fearless of prosecution.
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