Do War Crimes Tribunals Work?
War crimes tribunals, such as the Nuremberg trials in Germany, are a leading response to war crimes and other crimes against humanity. But are war crimes tribunals effective? Unfortunately, tribunals rarely meet their stated aims, and the world should look to other justice mechanisms to help societies heal from atrocities.
To start, war crimes tribunals are international courts established to try individuals accused of crimes against humanity.¹ Often these trials proceed under the authority of the United Nations and target high-level perpetrators and organizers of war crimes, as opposed to the thousands of soldiers and civilians who might help to carry them out.
On face, war crimes tribunals are appealing. For example, the successful prosecution of German and Japanese war criminals in the aftermath of World War II forced Germany and Japan to reckon with their misdeeds and move on from the war. However, understanding war crimes tribunals requires a deeper analysis of how well they achieve their objectives. In his book Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, Gary Bass brilliantly evaluates arguments in favor of war crimes tribunals.
First, Bass notes that many believe war crimes tribunals purge threatening, genocidal leaders.² For example, the Nuremberg and Tokyo tribunals neutralized Germany and Japan’s wartime leaders. However, war crimes tribunals in the Balkans have failed to discredit perpetrators. In 1999, 73 percent of Serbs had a favorable opinion of Serbian-Bosnian politician Radovan Karadzic, in spite of NATO prosecuting him and his cronies for war crimes.³ In other words, war crimes tribunals don’t necessarily discredit war criminals, and the political interference tribunals require can cause nationalist backlashes. Moreover, trying war criminals requires capturing them first, meaning that they have already been neutralized.
Second, some argue that war crimes tribunals deter potential war criminals. However, history indicates that war crimes are difficult to deter. Bass points out that the Nazis continued the Holocaust even when they were losing World War II and expected punishment.⁴ Most war criminals expect punishment if apprehended and still commit atrocities, making deterrence a weak argument in favor of tribunals.
Third, many view the Nuremberg trials and the de-Nazification of Germany as an example of war crimes tribunals prompting a country to reckon with its past and rehabilitate.⁵ Bass, however, is suspicious of the role Nuremberg played in Germany’s de-Nazification. After top-ranking Nazis were convicted, German support for war crimes trials diminished. By 1949 “only 38 percent of German respondents in the American zone thought well of subsequent [war crimes] trials.”⁶ To Bass, this indicates that Nuremberg was hardly a “lighting catharsis” that transformed Germany from “Nazi country to a penitent democratic one.”⁷ It took a new generation to fully de-Nazify Germany, not tribunals.
Fourth, war crimes tribunals can be appealing because they place blame on individual perpetrators, rather than ethnic groups or nations. “A narrow and well-focused purge may be less likely to spark a nationalist backlash,” Bass emphasizes.⁸ However, solely focusing on individuals and elites means there will “always be wider circles of bystanders and collaborators who… bear a moral taint” for genocidal action.⁹ Tribunals that prosecute individuals necessarily ignore these larger, guilty circles. While practical, this is weak justice.
The fifth, strongest argument in favor of war crimes tribunals is that they establish the facts of what happened during an atrocity. The denial of atrocity is an integral component of how future atrocities are committed. Tribunals, by creating a record of what happened during the event, confront this denial. For example, the Nuremberg trials unearthed “an extraordinary trove of testimony and documentation” that unequivocally established Nazi guilt.¹⁰ By the same token, the weak effort to prosecute Young Turk war criminals after World War I has allowed Turkey’s government to “go to considerable lengths to deny the persecution of the Armenians.”¹¹
Bass demonstrates that war crimes tribunals valiantly compel societies to reckon with their past crimes, but they rarely meet their stated aims. In the end, Bass supports tribunals because he sees them as being superior to the alternative, vigilante justice.¹² But, accepting the current, inefficient system because it is better than inaction is a weak argument. There is a more compelling way to help societies heal in the aftermath of atrocities: truth commissions.
Truth commissions are official bodies tasked with revealing past wrongdoing in order to resolve conflict.¹³ They are broad in scope and their aim is to uncover information. This contrasts with the herculean aim of war crimes tribunals to deliver justice in response to incomprehensible atrocities.
Truth commissions have been implemented successfully before. In South Africa researchers found that 75% of black citizens were satisfied with the work of its post-Apartheid truth commission, which offered amnesty to Apartheid perpetrators who truthfully described their role in the regime.¹⁴ These widespread confessions helped to prevent vigilante justice in South Africa, refuting Bass’ argument that a legalistic process is the only means by which to stave off vengeance.
Importantly, truth commissions uncover what occurred during atrocities and facilitate healing more effectively than war crimes tribunals. This is because they encourage individuals to come forward with what they know by granting them amnesty. To that end, South Africa’s truth commission has aired many of apartheid’s secrets, helping the country to heal. In addition, truth commissions are easier to implement than war crimes tribunals. South Africa’s truth commission processed 7,116 amnesty applications for roughly $4,300 per case.”¹⁵ When compared to the $1 billion spent on the International Criminal Tribunal for Rwanda to try and convict 25 organizers of the Rwandan Genocide (it is estimated some 50,000 actively participated in the genocide), truth commissions effectively establish what happened during an atrocity at all levels of society.¹⁶
While the organizers of war crimes obviously need to be punished, our focus on bringing small cadres of depraved elites to justice has obscured the far more difficult task of healing societies from the crimes these individuals commit. By encouraging perpetrators from all levels of society to step forward and confess, truth commissions recognize collective responsibility and facilitate healing in a way that war crimes tribunals cannot.
Endnotes:
1 “UN Documentation: International Law.”
2 Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, 287.
3 Bass, 289.
4 Bass, 292.
5 Bass, 296.
6 Bass, 296.
7 Bass, 296.
8 Bass, 301.
9 Bass, 298.
10 Bass, 302.
11 Bass, 303.
12 Bass, 310.
13 “Rule-of-Law Tools for Post-Conflict States: Truth Commissions.”
14 Cobban, “Think Again: International Courts.”
15 Cobban.
16 Cobban.
