War, War Crimes, Power and Justice: Toward a Jurisprudence of Conscience

Published on The Asia-Pacific Journal /Japan Focus, by Richard Falk, January 2012.

Ever since German and Japanese leaders were prosecuted, convicted, and punished after World War II at Nuremberg and Tokyo, there has been a wide split at the core of the global effort to impose criminal accountability on those who commit crimes against peace, crimes against humanity, and war crimes on behalf of a sovereign state. The law is always expected to push toward consistency of application as a condition of its legitimacy.   

In the setting of international criminality the greatest danger to widely shared values is posed by those with the greatest power and wealth, and it is precisely these leaders that are least likely to be held responsible or to feel threatened by the prospect of being charged with international crimes. The global pattern of enforcement to date has been one in which the comparatively petty criminals are increasingly held to account while the Mafia bosses escape almost altogether from existing mechanisms of international accountability. Such double standards are too rarely acknowledged in discussions of international criminal law nor are their corrosive effects considered, but once understood, it becomes clear that this pattern seriously compromises the claim that international criminal law is capable of achieving global justice … //

… Civil Society Tribunals:

There is another approach to spreading the net of criminal accountability that has been taken, remains controversial, and yet seems responsive to the current global atmosphere of populist discontent. It involves claims by civil society, by the peoples of the world, to establish institutions and procedures designed to close the gap between law and legitimacy in relation to the application of international criminal law. Such initiatives can be traced back to the 1966-67 establishment of the Bertrand Russell International Criminal Tribunal that examined charges of aggression and war crimes associated with the American role in the Vietnam War. The charges were weighed by a distinguished jury of private citizens composed of moral and cultural authority figures headed by Jean-Paul Sartre. The Russell Tribunal was derided by critics at the time as a ‘kangaroo court’ or a ‘circus’ because its legal conclusions were predetermined, and amounted to foregone conclusions. The critics condemned this initiative on several overlapping grounds: that its outcome could be accurately anticipated in advance, that its authority was self-proclaimed and without governmental approval, that it had no control over those accused, that its proceedings were one-sided, and that its capabilities fell far short of enforcement.

What was overlooked in such criticism was the degree to which this dismissal of the Russell experiment reflected the monopolistic and self-serving claims of the state and state system to control the administration of law, ignoring the contrary claims of society to have law administered fairly in accord with justice, or at least to expose its distortions and double standards. Also ignored by the critics was the fact that only such spontaneous initiatives of concerned persons and groups could overcome the blackout of truth on the matters of criminality achieved by the geopolitics of impunity. The Russell Tribunal may not have been ‘legal’ understood in the sense of deriving its authority from the state or from international organizations, but it was ‘legitimate’ in responding to double standards, by calling attention to massive crimes and dangerous criminals who otherwise might enjoy a free pass, and by producing a generally reliable and comprehensive narrative account of criminal patterns of wrongdoing and flagrant violations of international law that destroy or disrupt the lives of entire societies and millions of people. Such societal initiatives require great efforts that lack the benefit of public funding, and only occur where the criminality being legally condemned seems severe and extreme, and where geopolitical forces effectively preclude systematic inquiry by established institutions of criminal law.4

It is against this background that we understand a steady stream of initiatives that build upon the Russell experience in the 1960s. Starting in 1979, the Basso Foundation in Rome sponsored a series of such proceedings under the rubric of the Permanent Peoples Tribunal that explored a wide variety of unattended criminal wrongs, including dispossession of indigenous peoples, the Marcos dictatorship in the Philippines, massacres of Armenians, and self-determination claims of oppressed peoples in Central America and elsewhere.  In 2005 the Istanbul World Tribunal on Iraq examined contentions of aggression and crimes against peace, crimes against humanity, and war crimes associated with the U.S./UK invasion and occupation of Iraq, commencing in 2003, causing as many as one million Iraqis to lose their lives, and several million to be permanently displaced from home and country.5

In November 2011 the Russell Tribunal on Palestine, a direct institutional descendant of the original Russell undertaking, held a session in South Africa to investigate charges of apartheid, as a crime against humanity, being made against Israel. A few days later, the Kuala Lumpur War Crimes Tribunal launched an inquiry into charges of criminality made against George W. Bush and Tony Blair for their roles in planning, initiating, and prosecuting the Iraq War, to be followed a year later by a subsequent inquiry into torture charges made against Dick Cheney, Donald Rumsfeld, and Alberto Gonzales.6

Without doubt such societal efforts to bring at large war criminals to symbolic justice should become a feature of the growing demand around the world for real global democracy sustained by a rule of law that does not exempt from criminal accountability the rich and powerful whether they are acting internally or internationally.

Conclusion:

The problems of victors’ justice and double standards pervade and subvert the proper application of international law. As long as power, influence, and diplomatic skills are unevenly divided, there will be some tendency for this to happen. Civil society is seeking to increase the ethical and political relevance of international law in two ways:  by illuminating the geopolitical manipulation of law and by forming its own parallel institutions that focus on the criminality of the strong and the victimization of the weak. There remain many obstacles on this road to global justice, but at least some clearing of the geopolitical debris is beginning to take place. By geopolitical debris is meant this opportunistic reliance on law when it serves the interests of the powerful and victorious, and its determined avoidance and suppression whenever it restrains or censures their behavior. Until international law has the capacity to treat equals equally the corrective checks of progressive civil society are a vital ingredient of a jurisprudence of conscience despite their lack of governmental legitimacy.7
(full very long text, pictures, related articles and Notes 1 – 7).

Links:

Bertrand Russell International Criminal Tribunal /Russell Tribunal on en.wikipedia, with its External links;

World Tribunal on Iraq.

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