International Military Tribunals’ Genesis, WWII Experience, and Future Relevance

Years after the prosecution of Nazi and Japanese war criminals, the United Nations created an International Criminal Tribunal as part of its commitment to bring to justice persons engaged in war crimes, as those crimes were defined during the WWII proceedings. Ultimately, specific tribunals, organized by the United Nations, were created to bring to justice war criminals. In 1993, a tribunal was formed to prosecute former Yugoslav officials and military personnel for atrocities committed during what is known as the Yugoslav wars. In 1994, a tribunal was formed to prosecute officials in Rwanda for evidence of ethnic genocides. There is no permanent tribunal, however, as the United States stands as a vocal opposition to such a criminal court with a pronounced antipathy to such courts proceeding against US military personnel. As the US State Department has stated, there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses.” In the absence of US support, there will be no permanent tribunal and, at best, on an individual basis, the United Nations will create separate tribunals to address war crimes, leaving the choice of such prosecutions open to criticism that political objectives not appropriate for the wielding of such international resources govern, thereby diminishing the precedential value of the wielding of such power. Today, prosecution of war criminals is undertaken on a case by case basis by a permanent ICC established pursuant to the Rome Statute of 1998. As the US State Department has made clear, the US will not agree to a permanent court but rather accepts a case-by-case prosecution thereby avoiding the prospect of politics or other public relations considerations serving as the basis for singling out US citizens, including US political officials. We are 70 plus years away from that time of international unity to bring to justice the military and political officials of vanquished nations. We do not have that unity today. In the absence of the US support of such a permanent court, the efficacy of international criminal tribunals as not only the source of law on the substantive crimes prosecuted but on procedural obligations of the prosecution and rights of the defendants is doubtful