Contact

Get infos via silas@ruc.dk

Who is accountable – the collective or individual?

Authors: Yaqub Abdirahman, Sarah Zarhdani, Ida Juel Koll and Rukiatu Fatmata Sheriff

This blog entry illustrates the distinctive temporal progressions of trial processes and their significances for how justice and fairness are perceived and achieved in international justice. Furthermore, through the usage of Schabas’ text, this entry will draw on The Nuremberg trials and ‘Milosevic trial’ to illustrates the temporal differences between our perception of how to achieve justice and fairness throughout history. Additionally, the blog post also illustrates a collective societal shift away from collective criminalisation and guilt, towards a greater individualisation of wrongdoers. The entry, thereby, aims to illustrate the temporal progression of international trials and prosecution processes, in an attempt to explain the practical implications of these processes as their impact extends their temporality.

International criminal justice gained prominence in the international sphere in the wake of WW2 and Nuremberg military tribunals of 1945. The trials were the first of their kind and despite the later perceived brutality of the trials, which made the American Chief of justice Harlan Fiske Stone referred to as a “high-grade lynching party” (Schabas: 2006, pp. 422). The trials still signified “the beginning of a great thing” for some such as the French politician Georges Clemenceau. Furthermore, the brutality that Harlan Fiske Stone speaks of is the ‘unfairness’ and retributive nature of the tribunals, as justice was swiftly served by the ‘Victorious allied powers’ who had won the war. The victor’s then proceeded to set up a ‘special tribunal’ for prominent members of Nazi-Germany’s regime in accordance with article 227 of the Treaty of Versailles (Schabas: 2006, pp. 421).

Article 227 of the Treaty of Versailles proposed trials were the judges are selected among by the five victorious powers, and another international military tribunal as proposed in article 229 where the judges were constituted by the members of the winning states. These trials had a clear punitive approach to justice and as a result, the Nuremberg and Tokyo trials were subjected to a lot of criticism for being what many modern students refer to as a ‘Victor’s justice’.

The American Supreme Court judge, who served as one of the prosecutors in the Nuremberg trial and was a part of the negotiation of the Charter, Justice Robert Jackson (JRJ), questioned the level of justice and fairness of the trials. JRJ asserted that if one’s aim is ‘to execute in any case’, and “If you are determined to execute a man, in any case, there is no occasion for a trial” (Schabas: 2006, pp. 422). Additionally, JRJ asserts that ‘the world yield no respect to courts that are merely organised to convict’ (Schabas: 2006, pp. 422), asserting that trial should include the prospective reconsideration of perpetrators plight if the evidence called for it, rather than exercising the determination to execute the alleged perpetrators.

The international justice march including the International Human Rights Movement has had an influential impact on the procedural conduct of modern UN tribunals as these movements initiated an influential debate concerning the processes of international justice. As a consequence of the remodelling of International justice, it came to represent accountability, anti-impunity and post-conflict justice (Schabas: 2006, pp. 423). The generational progression of Transitional Justice echoes Justice Robert Jackson’s point as modern trial processes put a greater emphasis on serving justice and attaining fairness, rather than dishing out retribution. With the temporal progressions within the field of Transitional Justice, one remarkable difference between the first and the following generations of Justice come to show. The first generation illustrates the changes within the conduct of trial and the shifting perceptions of how to acquire fairness and justice for victims of atrocities.

During the second generation, the United Nations tribunals focused more on Transitional Justice in regards to trials, TRC and amnesty, in order to facilitate that societal transitions aimed at “ … ending impunity is essential if a society in conflict or recovering from a conflict is to come to terms with past abuses committed against civilians (…) and to prevent future abuses” (Schabas: 2006, pp. 424). The resolution, which UN Security Council reaffirms, draws the attention onto the full range of justice and mechanisms of reconciliation as the UN Security Council aimed at promoting “… not only individual responsibility for serious crimes, but also peace, truth, reconciliation and the rights of the victims” (Schabas: 2006, pp. 424).

The tribunals and trial processes as a mean to acquire fairness and justice for victims of atrocities is an attempt assure that the atrocities are “paid for”, in accordance with the progression of the second generation of Transitional Justice. The shift came to show during the 1990’s when Margaret Thatcher and George Bush Snr. tried to push for an international tribunal indicting Saddam Hussein who was regarded perpetrator as he was accountable for the mass atrocities in his military aggression towards Kuwait (Schabas: 2006, pp. 422-423). Even though, the attempt did not successfully follow through, the proposal contributed to a larger ‘openness towards international justice’, which had not been witnessed since the 1940s (ibid, pp. 422-423). The United Nations Security Council acknowledged the necessity for an International criminal tribunal, due to the fact that violations of the international humanitarian law were violated in former Yugoslavia in 1993. With an increasing openness towards international justice a procedural shift occurred in the prosecution processes, the focus shifted away from indicting political regimes to prosecuting individuals, who were held accountable for committing mass atrocities and ‘crimes against humanity’.

 

The ‘Milosevic trial’ is included with the purpose of highlighting the aforementioned shift, where a greater focus was placed on the individual as a bearer of guilt compared to the collective guilt that was placed on eg.  Leipzig trials. In November 1995, The Dayton Peace Accord (DPA) was signed by the following Heads of States of Serbia (Slobodan Milosevic), Croatia (Franjo Tudjman) and Bosnia (Alija Izetbegovic). The primary purpose of DPA was to establish peace, by settling the bloody territorial disputes and wars that ravaged the Balkans for years, resulting in thousands of deaths, and the massive displacement of approximately two million people fleeing the mass atrocities. The DPA resulted in the partitioning of Bosnia-Herzegovina, which intensified the ethno-religiously division as the nation-state was internally divided into two units, a Bosnian-Croat (Islamic) Federation and a the Bosnian-Serbian Republic. William A. Schabas draws the attention onto the Serbian politician Slobodan Milosevic (1941-2006), who was prosecuted and later convicted of committing ‘crimes against humanity’ in the former Yugoslavia, thus violating the International Humanitarian Law (Schabas: 2006, pp. 423). The massacre was later dubbed the ‘Srebrenica genocide’, which was accountable for the death of approximately 8.000 Bosnian Muslims during July 1995, is applied in the article to exemplify and emphasise the extent of the atrocities ordered by Milosevic. Schabas provides an inside to the ‘Milosevic trial’ to discuss the complexities involved in guaranteeing a fair trial. Due to the sudden death of Milosevic, the question arose whether the ‘Milosevic trial’ could be contemplated as a fair trial and if justice was served before his death in prison. Three exemplifications are presented to examine the fairness of the trial process.

The first example touches upon the admission of written statements. To understand how we can improve the prospects of achieving ‘fairness’ and international justice, the Nuremberg trial of ‘International Military Tribunal’ is essential for our understanding as the court was critiqued, due to the heavy utilisation of written testimonies that were processed into affidavits (written statements confirmed by oaths). Schabas draws a parallel to the ‘Milosevic trial’ to underline that both trials lacked cross-examinations (Schabas: 2006, pp. 424). This was evaluated as unfair since justice was solely restored through the utilisation of written testimonies. As a consequence of the large reliant on written testimonies, ‘eyewitness testimonies’ has become a priority for all open courts to minimise that a trial is only based on affidavits construct a fair trial (Schabas: 2006, pp. 424-425).

The second addressed the substitution of judges during the trial process. Due to the illness of judge Richard May, the three judges, could not proceed with the trial according to the ‘Rules of Procedure and Evidence’ (1994). According to the framework, the Milosevic had to provide his consent to the continuation of the trial with a substitute judge, but the legal requirements were not met as the rules were altered (Schabas: 2006, pp. 425). The ‘Milosevic trial’ continued with the substitute judge without the consent of Milosevic. The last example deals with the right of the accused to defend oneself. It is highlighted that Milosevic was not given the right to represent himself, instead, he was provided with court-appointed officials who was responsible for defending him. This conflicted with the Tribunal’s Statute, which formally provides the accused (Milosevic) the right to defend himself on his own or through legal assistance (Schabas: 2006, pp. 426).

Schabas asserts that “… it would be overstating things to dismiss either the Milosevic trial or Nuremberg trial as unfair. Both had their flaws.” (Schabas: 2006, pp. 426). This implies that regardless of the proceedings of the ‘Milosevic trial’ it is an exaggeration to contemplate the trials unfairly, instead, we should mainly acknowledge that the procedure was flawed. Additionally, Schabas evaluate the trial outside it procedure level and argue that “… a trial is unfair if the charges themselves lack a legal basis.” (Schabas: 2006, pp. 427). As it is evident in the statement, the perpetrator, Milosevic, did not suffer any unfairness in regards to his convictions, since the legal basis for convicting him was strong and because he was found guilty of committing ‘crimes against humanity’.

 

Conclusion

As illustrated throughout the text, the International Criminal Court certified that the prosecution of atrocities committed by political regimes, who were not in the position of exercising jurisdiction was held accountable to the international law. This was done to ensure that ‘crimes of state’ did not go unpunished when the judicial system of the nation failed to operate (Schabas: 2006, pp. 430). Furthermore, Schabas notes that “Genocide, crimes against humanity, war crimes and crimes against peace were all ‘crimes of state’, even if the specific perpetrator were individuals” (ibid, pp. 430). This highlight a progression away from collective forms of guilt, towards a greater individualisation of wrong-doing, the shift is illustrative of the temporal nature of trial processes and our sense of justice at large. Drawing on the peculiarities of the cases, it is evident that trial processes are linked to the international community’s collective understanding and sense of justice. The marked progressions, therefore, calls for the student of transitional justice or international justice studies to look beyond the evident dichotomisation and categorisations of victims and perpetrators, collectives or individuals, or substantive and punitive justices as the field of International justice operates within a temporal context.

 

Bibliography

Erin K. Baines (2009), ‘Complex Political Perpetrators: Reflections on Dominic Ongwen’ in Journal of Modern African Studies vol. 47, pp. 163-191.

William A. Schabas (2006), ‘International Justice for International Crimes: An Idea whose Time has Come’ in European Review vol. 14, pp. 421-439.

1 comment to Who is accountable – the collective or individual?

  • jurika

    Interesting post, that touches upon some of the main points of the Schabas article. I’m curious to hear more about your thoughts about the shift from collective forms of guilt and punishment, towards a greater individualization of wrong-doers.
    Do you think justice has moved (and is moving) in the right direction with this progression. Why/why not?
    Are there any problems with the individualized criminalization? For example – could it be that the wrong-doers actions could be seen more or less as a result of collective processes or a complex background such as the case of Domenic Owgden? Should this affect the judgement and justice-process?

Leave a Reply