Consequentialism and War-Crime Trials
Preface
This is something I wrote for an old introductory class that served as an Introduction to Law. The professor had recently written a book that outlined the history of war crime trials (trials that took place in response to massive human-rights violations), in which he analyzed war-crime trials.
His mode of analyzing the trials was pinned on how well they represented justice, instead of simply being tools to express political will or consolidate political power. He analyzed justice by means of four, rather Enlightenment-style heuristics: (1) substantive due process (fair basis of judgement), (2) procedural due process (accurate enactment of that basis), (3) deterrence (discouraging similar wrongdoings), and (4) retribution (punishment and/or reparations). These four heuristics are often referenced throughout the essay I present here, in reference to a preceding essay that detailed them.
While these four heuristics are each possible to criticize — particularly the need for retribution — that is not the immediate intent of my essay here. Instead, I am presenting an alternative way of measuring the success of war-trials which comes from a moral basis of consequentialism. In presenting my alternative, I therefore provide a counter-argument to his four heuristics. While rather brief and not philosophically rigorous (this was a political science class), this essay still introduces an interesting concept of closure, and presents it as the goal of any good attempt to resolve past disputes. Closure still interests me, and might be the subject of essays in the future.
Prompt
Compare one successful set of war crimes trials with one set that failed. You should clearly explain what constitutes success or failure.
Consequentialism and War Crime Trials
In this essay, I will present the Nuremburg Trials in contrast to the trials which took place after the Rwandan genocide, making the claim that the Nuremburg trials were a success while the Rwandan set of trials were a failure. When judging success and failure, I will take into account more than simply the ratio of influence that justice or politics had on the trial, or how closely political interests aligned with just trial practices. Instead, my judgement of success will take a consequentialist view, in which it’s neither the processes nor goals of the trials that matters, but the results of the trials. If the trials successfully deter future similar crimes, they are successful. Even if this means that the trials purely serve as a form of consolidating political power, what is important to me is that this is done in a way that the human rights violations of the past are not repeated.
To measure success in war crime trials more precisely, the concept of closure is important. War crime trials are the end to a long process, one that starts with a dispute between groups, growing to the point where the conflict involves deep human rights violations, and leading to a point after most conflict has settled down at which holding trials becomes possible. At that point, political power might be fully consolidated, some political groups on the other side might still feel a desire to be appeased in some way, or the groups might still be in deep contention. The trials need to act as a form of closure — a final end to the conflict in a way that enough loose ends have been addressed such that the community of people and parties involved can move on, knowing that the conflict will not continue or arise again. This is very similar to the concept of deterrence as described in my first essay, but includes the aim that all groups that matter are satisfied with the outcome of the trials, and are therefore satisfied that they have reached the end of their conflicts.
Usually, to reach closure, the trials must have an emphasis on the destruction of the ideological root causes of the conflict — something which wars and physical domination cannot solve. Also of note is that the requirement for retribution is nonexistent in this concept of success, and is only thought of as good if it is necessary for reaching closure.
The post-apartheid Truth and Reconciliation hearings mentioned in the previous essay would be regarded as a total success; even without finding punishment for the perpetrators, the hearings marked an end to the conflict between the groups and provided closure to the systemic human rights violations that characterize the apartheid era. It attacked the ideology of apartheid, and in doing so, squarely put the system in the past and essentially guaranteed that it would not occur again in South Africa. It wasn’t a success because it aimed for closure, it was a success because it achieved it.
But I’m not here to talk about the Truth and Reconciliation Commission; my focus on a successful war crime trial leads me to examine the Nuremburg trials, which took place after World War II and marked the beginning of institutionalized war crime trials. They were meant to put to trial those who were at the top of the power pyramids in the German military. The trials were constrained politically because they wanted to make sure that Germany would not be in a state of economic ruin. This was something which World War I had failed to do, and which arguably played a large role in starting World War II. Twenty-four high ranking Nazi officials were the main identifying factors of the Nuremburg Trials, and they were tried on accounts of crimes against peace, war crimes, and crimes against humanity, and the tribunals followed all the four hallmarks of a just trial which were detailed in the first essay: substantive and procedural due process, and deterrence and retribution. The only deviation from those four is that the Nurember trial left out much of the aspect of reparations for victims — a common part of retribution. Political power did not need to be consolidated after the sound victory of Allied forces, so more emphasis could be placed on justice.
Closure was achieved through this process of justice, with all groups involved realizing that this was the final end to the Nazi regime, closing any loose ends. The emphasis on prosecuting the high-ranking officials instead of the soldier-level individuals ended up putting emphasis on the ideas that caused the war crimes and crimes against peace and humanity; the trials pushed an ideological agenda in this way. Modern German ideology has been heavily affected by the outcome of World War II, and I would account a large part of this to the ideological emphasis of the Nuremburg Trials. The trials were a success because of their effects of deterrence and closure.
On the other hand, the events in Rwanda and the UN’s response were disastrous. A violent conflict between the Tutsi and the Hutu, two “culturally and politically dominant ethnic groups in Rwanda” broke out, but not in a way that there were any truly identifiable power structures (173). There were obvious crimes against humanity — torture, slaughter, and genocide of the Tutsi and moderate Hutu by Hutu extremists, with root causes in the political domination of the Tutsi minority and unequal distribution of materials in a country in a position of continuous scarcity. The crimes against humanity were provoked by a UN brokered deal of a power sharing arrangement, and the leaders, if you could call them that, were provocateur talk-radio hosts.
Eventually, the UN established a judicial body, the ICTR, to prosecute the wrongdoing. The four tenants of justice were there; substantive and procedural due process were “beyond reproach” and were in the aim of providing deterrence and retribution. However, the process was so consuming that, of the one hundred thousand Rwandans that were in jail at one point, only ninety were dealt with by the court (177-178). This inability of the international community lead to the Rwandan government establishing small tribunals, gacaca. These somewhat represented the Truth and Reconciliation Commission in the way that the perpetrators were judged and forgiven by the members of their community. It was meant to be a way to move past the genocide.
The international ICTR was a total failure that got lost in the process, and thus lost sight of the idea of closure and what makes a successful set of trials. The gacaca system was a far better solution, but “international and scholarly communities have maintained that unless . . . those who committed the atrocities are held accountable for them — the contestation between Hutu and Tutsi control of Rwanda and its resources is very likely to turn violent again (Prunier 1995, p. 355) (180). Additionally, the gacaca system focused on the Hutu’s genocidal rampage and property crimes against the Tutsi, but left out the violence against the Hutu by the Tutsi (which is a notable loose end which serves as a concrete split between the two factions). The root causes of the conflict have not found closure in either of these trials, so neither may be viewed as a success. Perhaps it is asking too much of a Rwandan judicial system to solve resource scarcity, but the trials didn’t even fully put emphasis on the ideological divide between the conflicting groups. They may have done the best they could within the bounds of politics and economics, but it wasn’t enough to count as a success.
Here, we’ve seen that a successful war crime trial can be carried out both through modes of restorative justice such as the Truth and Reconciliation Committee; or through more stylistically European trials such as the Nuremberg Trials. What successful trials share is a focus on resolving the ideological basis for the initial conflict — in other words, finding closure. However, both the European-style and the restorative-justice-style methods can also fail, as we saw in the Rwandan case. Respectively, the UN tripped over its own on procedures in Rwanda, while the gacaca overlooked the Tutsi’s violence on the Hutu — an important part of the ideological rift which led to the original genocide. If consequences are used to measure the success of war crime trials, as I believe they should, the methods and goals of such trials must shift to emphasizing and achieving both ideological and societal closure.
Further Lines of Thought
Expand on the nature of closure; is closure possible to reach by totally eliminating those who hold an alternating viewpoint? (If no, why not? If yes, does this mean that a genocide might reach closure with an additional genocide of all who disapprove?)
An obvious critique to all of this is that we're relying on categories of war-crimes and crimes against humanity. These also have their roots in the professor's Enlightenment values bent. But who defines these categories in society? Who should define such categories or similar categories? Who is able to see injustices when they occur, and how might they be put in a position to act on such incidents or structural injustices?
Reference
Smith, Charles Anthony. The Rise and Fall of War Crimes Trials: From Charles I to Bush II. Cambridge: Cambridge UP, 2014. Print.
