meron et al - where do we go from here, conclusion

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Where Do We Go

From Here?

New and Emerging

Issues in the

Prosecution of

War Crimes and

Acts of Terrorism

A Panel Discussion

THEODOR MERON,

RICHARD J. GOLDSTONE,

ARYEH NEIER,

KENNETH ANDERSON,

PATRICIA

M.

WALD,

MICHAEL W ALZER

THEODOR MERON: Let me start with Justice Goldstone. WTiat

were the problem s you encoun tered in the infancy of Th e Hague

tribun al, a nd which you believe have bee n largely solved?

RICHARD GOLDSTONE: I think the main problem that has

been solved relates to the very credibility an d justification for set-

ting up the Yugoslavia tribunal. When I arrived on August 15,

1994,

the tribunal had been written off, throughout the democ-

ratic world and the undemocratic world, especially by the

media—and understandably so. Human rights activists had

thrown up their hands in frustration at the political disregard for

the victims for whom the tribunal had b een set up . I am referring



] 78 SOC IAL RESEARCH

lar, there was the 15-month delay in appointing a prosecutor—

that was a huge problem the tribunal faced. T he judges them-

selves had been appointed the previous September. So they had

been the re for some eigh t months, feeling ridiculous, as they can-

didly told me. Having fashioned the rules of procedure and evi-

dence, they were waiting for trials to begin. But there were not

any investigations, even in the assembly line. So there was anger

and frustration.

That is now a thing of the past. No institution is perfect, and

there certainly have been other serious problems with regard to

the ru nn ing of both tribunals. However, they are now up and run-

ning and respected and doing important work. The change is a

ver)

significant one.

MERON: May I continue? We are friends, and therefore I can ask

these questions. What do you think was the major mistake you

made as a prosecutor?

GOLDSTONE: Absolutely none. That s an easy one.

MERON: Is there anyth ing you would have do ne a different way?

GOLDSTONE: I don t think so. I was fortuna te in having won-

derful advisers and colleagues. From day one I mad e it a po int of

consulting widely, particularly with the NGO community, and

Aryeh Neier in particular was a valued mentor and adviser. They

were not single-person decisions. But they were decisions taken

carefully, because they were difficult decisions. I really can t th ink

of anything significant th at could have been do ne differently.

MERON: Would you now, with hindsight, indict people like

Dusan Tadic, or wait for more prominent criminals?



P A N E L D I S C U S S I O N 1 1 7 9

inappropria teness and unhappiness of indict ing low-level people .

T h er e w ere two reason s for it , an d they were b ot h, in my view,

unavoidable . O ne is unfo r tuna te and o ne is not . Th e unfo r tuna te

on e was that wh en I arrived in Th e H ag ue , I was inform ed that I

would have to appear in November , three months af ter I ar r ived,

before the bu dg et comm it tee of the U ni ted N at ions : the Ad\ isor)

Committee on Administra t ive and Budgetary Quest ions. Knowl-

edgeable UN insiders advised me that the future f inancing of the

tribunal would depend entirely on whether we w^ere given an ade-

qu ate b ud ge t. An d I was advised tha t if we d id n t have an indict-

ment out by November 1994, that would not happen—^we would

be without adequate funding. And that was a ser ious concern.

Obviously I would no t have coun tena nce d s igning an indic tm ent

if th er e was n o t ad eq ua te available evi den ce to justify it. Bu t th e

only per son against wh om , by the be gin nin g of Novem ber , we had

evide nce th at justif ied a n in dic tm en t was a m an called Nicolic. In

the constellation of war criminals in Bosnia, Nicolic was a small

fish, as the newspapers liked to call him. But, in order for the tri-

bunal to survive, we decided that i t was necessary to issue that

ind ic tment .

I have a lways conceded that Nicolic was a most inappropria te

first indictee of the f irst international criminal court. I t would

have been lovely to start off with an indictment against Bosnian

Serb leader Karadzic or Bosnian Serb General Mladic , or some-

body at th at level. But at that p oi nt of t ime th er e ju st was no t ev en

the beginnings of a case then against them.

We then co ntin ue d with a n um be r of oth er small f ish. Tha t was

a very del iberate policy. I f you examine the Nuremberg record,

you v\ill be surprised—as I was the first time I read it—how little

witness evidence there was. The bulk of the evidence vv-as docu-

m enta r ) . Th e N urem ber g prosecutors were b lessed with smoking

guns galore . They had to weed out which guns to use . The docu-



1180 SOCIAL RESEARC H

We had no such gift. At the Yugoslavia tribunal there was no

documentarv- proof there were no smoking guns. .\nd we had to

build up circumstantial cases. The witnesses we could get to—and

there were hundreds of thousands of them, over 300,000 Muslim

refugees in Germany alone—could only give us evidence against

the people who victimized them: camp guards, camp comman-

ders.

They didn 't know who gave the orders for their victimization.

MERON: They did not know the senior people.

GOLDSTONE: But we had to establish, thro ugh a series of lower

level investigations and indictments, that there was a plan. We

could show that over a short period many villages in a swath of

Bosnia were being ethnically cleansed. It w s clear that the inten-

tion was to jo in the Serb Republic with Serbia proper. And we

could establish—and this is the case that I ho pe Karadzic v\ill have

to answer—that orders must have been given for this ethnic

cleansing to have been carried out by these lower level officials in

many villages. We were assisted by the sort of boastful statem ents

that people like Karadzic made, acknowledging that constitution-

ally he was not only the head of state but also the commander in

chief of the armed forces of the Serb Republic. And he used to

say, Nothing happens in my army v\ithout my knowing it, and

vvithout my ord ering it. But that's the sort of case that had to be

built up. Without the lower level investigations and indictments,

we would not have had the indictment against Karadic.

MERON: Than k you verv' m uch . Ken Anderson, you have been a

frequent critic of the tribunals. Could you, in a nutshell, tell us

what was your m ain complaint abou t the tribunals?

KENNETH ANDERSON: It's actually a difficult one to articulate



PANEL DISCUSSION 118 1

MERON: So it s a good question.

ANDERSON:

Yes,

precisely. And I should say that I thought that,

by becoming a law professor, Ted, the point was that /would ask

the questions. So the tables have been turned once again.

MERON: I also am a professor.

ANDERSON: Yes, so they havel I have to take issue with Justice

Goldstone s suggestion tha t the Yugoslavia courts have achieved

the legitimacy and relevance that h e thinks they have. I don t

think that s so, but I hesitate to take the discussion in these kinds

of directions because ultimately I m no t sure that is what w want

to discuss here today, which is really humanitarian law. Still, I

think I should be clear about my position, which is that, notwith-

standing the heroic and noble work of the people working on

them, there is enormous myopia about what constitutes legiti-

macy. I say this while remaining complete agreement with every-

thing that Justice Goldstone has jus t said ab out the narrow

descrip tion of how cases are bu ilt, an d the kind of legitimacy th at

had to be developed with the NGO community, with the media,

with intern ation al organizations—for the work that Ju dg e Wald

has carried o ut in actually tr)ing to fashion jurispru dence on the

court, or that Professor Meron is doing currently.

Nonetheless, the legitimac) tha t exists

is,

frankly, built on foun-

dations of sand. It represents a desperate em brace betvs een cer-

tain international elites who constitute the shifting group of

international organizations, their

staff

and personnel with peo-

ple in the internatio nal NGO world. It s a kind of love affair

between two relatively narrow constituencies that frankly do not

relate all to the larger world. I do n t think that genuinely broa der

legitimacy can be had except on the basis of democratic institu-

tions to which the Yugoslavia court has might have connections,



1 1 8 2 S O C I A L R E S E A R C H

not inst i tut ions that can be created in advance of having democ-

ratic legitimacy in some form. Moreover, the kind of democratic

legitimacy that is accorded from states to international bodies is

no t the kind of legitimacy th at can give you th e kin d of cotir t pro-

ceedings taking place now.

Yet som eb od y will reply, But surely all th e legitimacy you n ee d

is that we agree that crimes against humanit) ' , genocide and so on,

are things that no bo dy can object to. Certainly, that 's qu ite r ight.

But wh en o ne m oves to an

ctu l

cou rt, wh at really ma tters is pro-

cedure . Procedure concerning issues such as what counts as e \ ' i -

dence, what motions can be brought , how do you actual ly go

about this thing?

On those concerns there are no set t led agreements . And I

don' t think that there need to be. There are dif ferent s tandards

in different democratic societies, and in different societies gener-

ally. So, the nutshell of my objection, realHs is that I think that

these courts lack any kind of foundation for the exercise of the

political power they wield; they lack legitimacy grounded in any

kind of genuinely democrat ic inst i tut ions, and you cannot get

that legitimacy merely by talking about the pooling of sovereign

states and the ir de m ocra tic legitimacy. I t ju st d oe sn ' t carry over to

these kinds of institutions and individuals. That said, I 'm not sure

we need to go further in that way. I think it 's worth la)ing that

posi t ion out , but I think that there are so many other quest ions

that have also been raised about what should be the substantive

rules of hu m ani tar ian law in re la t ion to terror ism , m ore narrowly

confined, that I don' t want to derail the discussion.

MERON: We wiU reach that too, I can assure you. But I think that,

given your articles cridcizkig the tribunal, it was good to touch on

these issues, an d I 'm w ond ering wh ether Ju dg e Wald an d Aryeh Neier

wou ld like to com m en t, especially on this ques tion of legitimacy.



1184 SOCIAL RESEARCH

the legitimacy of the \\igosla\ia tribunal. There have also been

com plaints about the Rwanda tribunal, from within Rwanda.

h

er

time,

however, even there , greater acceptance of the legitimacy of

the Rwanda tribunal has occurred. Internationally, there is a high

degree of acceptance of both the Rwanda tribunal and the

Yugosla\ ia tribunal. T hat says to m e that their performance has

built a level of legitimacy that goes well beyond the particular nar-

row elites that you are talking about.

MERON: Thank you ver) much. Ken, briefly, your defense?

ANDERSON: Let me start with Aryeh s point.

Yes,

in some sense

it s true, the courts build their legitimacy by how they perform .

But I think that if one looks at the United States Supreme Court,

it s simply impossible to divorce its perfo rmance from its embed-

dedness within a certain kind of democratic, constitutional order.

Its performance within that structure is what gives it legitimac)

within a democratic polit) . I just don t think o ne can divorce the

performance of courts and talk about them having some sort of

free-floating legitimacy in a way that s removed from the political

system of which they are part, o r the political community of which

they are part.

I

jus t do n t un ders tand the natu re of the political

com munit) in which interna tional tribunals are supposedly oper-

ating. It certainly doesn t look like a dem ocratic polit) in any

meaningful sense to me.

Going to Judg e W ald s question. It s a ver) fair question: W hat

else do you do? Judicial accountabilit) is no t fundamentally the

issue; dem ocratic accountabilit) is. I m no t particularly b oth ere d

by it, in the case of the Yugoslavia tribunals. I m much more both-

ered by it in the case of the ICC. This is because the Yugoslavia tri-

bunals are much more narrow in what it is they re dealing with.

This ad hoc nature, I think, raises fewer questions about it. But




ning. (And certainly a very different behavior from Germany

from the beginning.) But again, that carries us off in a different

direction. It is a mistake, however, to assume that legitimacy is

achieved on the basis of what is agreed between CNN, the people

who hang out at the UN, and with people who write the checks

for it from the O pe n Societv' Institute. I think that we have got to

reach more broadly to achieve democratic legitimacy. Aryeh is

righ t in saving tha t these tribunals have achieved vastly mo re legit-

imacy than I would have expected, but there is still a much wider

world out there than the world that we contemplate here. At the

bottom , I do n't really unders tand the natu re of the international

comm unity in which these things are em bedded . Certainly I

do n't think it can really support a conc ept of judicial account-

ability because it does not have, and cannot have, democratic

legitimacy.

MERON:

e

will

stay

v\ith the Intemational Criminal Tribunal for

the Eormer Yugoslavia (ICTY) for another two or three minutes

and then move on to other questions. I would like to hear, in a

moment, from Judge W^ald in particular, and maybe from Aryeh

Neier, their thinking about the so-called exit strategy of the tri-

bunal.

Before moving on to that, if I may—as a moderator I'm sup-

posed to be neu tral, and I v\ill try to be—let me make a com m ent

or two about this discussion we've been having about legitimacy

of the ICTY. In the case of the ICC, one of the three prongs or

triggers for the jurisd iction of the ICC has been the referral,

under Chapter

Vll

from the Security' Council. So the interna-

tional communit)', the entire intemational communitvs felt that

there is some legitimacy in that means, and we all know that in

fact effectiveness of the ICC might require tha t this might be one

of the first cases—^who knows? Referred to the ICC might be a

case tha t would have to be re ferred by the Securit)' Council.




court, of ever)- institution, rests on its own record. It seems to me

that in the no rma tive sense, the dev elop m ent in a ver) serious way

of intern ation al h um an itaria n law by the ICTY has been quite

remarkable. And it would be extremely difficult for an institution

such as the ICC to have been ever contemplated without being

able to fall back on those principles of international criminal

jur isp ru de nc e de velope d by the ICTY, an d draw on the m . But

what is part icularly surprising, and ver) encouraging, is that the

I C T \

developed an extremely sophist icated and fair procedural

structure. And when I arrived at The Hague, I found that nearly

one-half of my time initially was spent on procedural questions.

Perh aps this shows that these tribunals are co m ing of age, and I m

sure tha t if Ju d g e W ald wo uld talk to us, an d this is no t ou r sub-

je ct toda) , abou t he r ex pe rien ce in ou r federal judiciar) , sh e

would tel l us how much of her t ime she had to spend on proce-

dural quest ions .

And in that respect I would like you to realize that there is a

ver) im po rta nt cross-fertilization bet^\ een th e various trib una ls.

Eor example, last week we revised at The Hague rules on inter-

locutor) appeals , an d we had to inco rpora te some s tandards . And

we felt that ou r own standard s in ou r rules of pro ce du res were no t

as good as the standards included in the ICC statute. So, while

revising rules for our own needs, we in fact took the ICC stan-

dards for in ter locutor) appeals , and incorporated them in our

own rules.

Now, Ju dg e W ald: W hat d o you th ink ab ou t this so-called exit

strateg) ?

WALD: First let me tell you what I understand the exit strateg) to

be .

It may be a moving target, it may have changed, since I left

Th e H agu e. But my und ers ta nd ing, w hile I was ther e, is that the

tribunal would make every effort to complete its trials by the end




But I think it was necessary for several reasons. O ne is on a ver)'

practical level. Erom meetings that I attended, which were also

attend ed by high UN officials, I think that it w s prett)' clear th at,

because the ICT\' is virtually completely financed by the UN—

there are voluntar)' contributions for particular aspects—there

had to be an exit strateg)'. There was not an unlimited purse out

there so that it could go on too much longer. It had to have a

plan . But I think, apart from the realpolitik of the fact, that it had

to be able to say to the UN, when it asked for the core of 27

d

ZzVew judges to h elp it speed up the trials, it had to say, "W'e do

have a plan now for finishing up these trials and getting out."

The tribunal v\ill, by the time it finishes, if it can a dh ere to this

plan , have been in existence for two decades , from 1993 to say

2013 or 2014. And, as I no ted in my paper, I do think that's prob-

ably getting to the edge of permissible time. I know there is no t a

statute of limitation on crimes against war or crimes against

humanit)', but I do think these are practical problems of con-

ducting trials and getting those witnesses that Judge Goldstone

referred to as time passes. These trials have been witness-pre-

dominant. W^en you get to two decades later it becomes harder

and harder to put together a case of credibility that will meet the

high evidentiary standards that the tribunal has set for itself

WTiat I do want to point out, however, is that part of the exit

strategy, and this indeed may be the hardest part, but it is part of

it as I understand it, is where do those cases that are valid cases,

bu t that the tribunal jus t can 't accomm odate in its exit plan,

where do they go? My understanding, which may not be a com-

plete one, is that many of those vsill be—the phrase that's used is

"dovvTiloaded"—onto the Bosnian courts, and some of the courts

in the Serb Republic, courts in Croatia, hopefully maybe in the

future courts in Serbia as well. But that's not an easy thing to do;

the Bosnians themselves are only now getting their own entrance



1188 SOC IAL RESEAR CH

also technical assistance, some supervision under our Rule 11.

that allows the tribunal to do that—

MERON: 11 bis

WALD: Thank you—which allows the tribunal to cooperate with

national courts on trials removed from the tribunal. For these

countries to be able to take any significant num ber of war crimes,

this will be necessary because these war crimes, based on the care-

ful nature in which they have been prosecuted and tried, take

years of field investigation, of body exhum ation s, all kinds of ver)'

complicated preliminar)' work tha t a lot of these coun tr)'judicial

systems are just not used to doing. And they're going to need con-

siderable help in being able to do it properly. They're going to

need witness protection protocols. They have already started

amending their statutes so that they can do it under proper legal

authority. But that's where, in effect, if you want to bring closure

to this episode , this terrible ep isode of the Bosnian

wars,

you need

a com bination of what the tribunal will have accomplished by the

time it goes out of existence and some rational plan for picking

up the most important ones left.

We'll never be able to tr)' all the war crimes. The estimate is—

and it's jus t a figure peo ple pull ou t of the air—50,000 war crimes

created in the course of the Bosnian-Croatian wars. But even v\ith

the crimes we consider the most significant, the national courts

are going to need a lot of assistance in that downloading process.

Croatia has already made some promising starts in trying some

war criminals on its own, bu t it's that kind of a combination strat-

eg)' that we'll need. In the end, I do think we need an exit strat-

eg). You can't really have a tem porary ad hoc court—^well, I

guess you could, but I don't think it's what we're all looking

toward: one that just goes on an d on an d on.



PANEL DISCUSSION 1189

in the former Yugoslavia. There is ver) litde doubt that when the

day comes there will be still a number of cases with which the tri-

bunal at The H ague has not been able to deal, and from the per-

spective of intem ation al hum anitarian law, certainly hum an rights,

the re will be a lot of talk about referring those cases to othe r

juris-

dictions. And more particularly, courts in the form er Yugoslavia, or

perhaps hybrid courts, mixed courts, this would present an

extremely complex issue, because I do believe that the intema-

tional community would not be satisfied with the referral of cases

to jurisdictions that m ight not as yet meet intem ational standards.

I would like to turn now to Aryeh Neier, and Aryeh, we have all

read your wonderful article in the

ew York Review of ooks

about

the militar) tribunals. We are now, needless to say, moving from

the ICTY and Rwanda to m ore contemporar) , o r othe r issues.

Your article has been extremely critical of the ea rlier mode l of the

regulations that have been issued, and I have no d oubt that it was

very infiuential in pro ducing various revisions of those orders and

guidelines an d regulations issued by the D epartme nt of Defense.

My question to you is: To what extent do the revised guidelines

m eet your concerns— and to what extent do they not?

N I R Judge Goldstone suggested he made no mistakes at The

Hague. I think I did m ake some mistakes in my New York Review of

ooks article about the military tribunals. I should have realized

when I

w s

writing the article that the procedural issues on which

I focused were only part of the story. Significant steps have been

taken since then to provide some procedu ral p rotections. Th e big

questions that I didn t touch up on were what kind of charges are

going to be filed and under which laws are the people held at

Gu antanam o Bay going to be tried. Are they going to be tried for

violations of the Am erican p enal code? Are they going to be tried

for violations of intemational humanitarian law? It seems appar-




T he b est guess I have ab ou t the ch arges is base d on occasion-

ally seeing something written by Ruth Wedgwood, as she has

emerged as a defender of whatever it is the Bush administration

intends. She seems to suggest that they will be charged with con-

spirac)' by rea so n of be in g affiliated in so m e way with Qaeda. If

that is the case, I thin k th ere is go ing to have to be som e pe na l law

that can be cited establishing that

^ l

Qaeda is a criminal conspir-

acy. Then one wonders, are they going to be the standards for

m em be rsh ip in a cr iminal conspiracy such as those that were con-

sidered in the United States at the time we were trving people

u n d er th e Smith Act? Are those s tandard s goin g to be em bo die d

in the ju r isp rud en ce of the t r ibunals? You rem em be r that w hen

the 11 top Communists were tr ied, i t was enough to say that they

w^ere know ing m em be rs of the C om m unis t

Partv ,

which advocated

the forcible o verth row of th e Un ite d States. T ha t was sufficient for

a conviction. Later on, however, the Sup rem e C ourt of the U nited

States, in various decisions, essentially dismantled the Smith Act.

The Court held that a great deal more had to be shown than just

knowing m em be rsh ip in this kind of cr iminal conspiracy.

Are the Su pre m e Co urt ' s s tandard s going to be met? I think the

whole question of the military' tr ibunal has gotten to be a muddle.

I may have been mistaken in focusing on procedural quest ions,

such as w heth er th ere are go ing to be appeals to a judicia l body;

whether there is going to be a r ight for the defendants to have

counsel of their

OV\TI

choice. Some of those issues have now been

addressed, but the larger quest ion of what charges are to be

made, and under which body of law they v\il l be tr ied, seems to

me to remain complete ly unresolved.

MERON: Thank you very much. In a moment I wil l turn to Pro-

fessor Walzer, but one more question to Mr. Neier. Aryeh, you

have always been a strong advocate of the concept of universalit) '




at Th e Hague— not in my court, but in the Interna tional Court of

Jxistice—in the case of Congo against Belgium, where the Inter-

national C ourt ofJustice struck a Belgian arrest warrant issued for

crimes against humanity (it had been issued against the person

who at the time was the foreign minister of Congo).

s

you know,

Belgian law is unprecedented in the breadth of the concept of

universality of jurisd iction , which it accepts without any nee d for

a link to Belgium. Do you think that the Belgian law and the Bel-

gian m agistrates have pushed the envelope of universality of juris-

diction a little bit too far, making this kind of decision perhaps

somewhat predictable? How would this operate if the Belgian

magistrate would issue such a warrant, as he did, against Israeli

Prime Minister Ariel Sharon?

NEIER: I do think the Belgian law does go too far. I think it is one

thing to exercise universal jurisd iction when th e defend ant is

within the territory of the country. A case that I think was wholly

appropriate took place in Britain a couple of years ago. A man

from Belarus, who was an im migrant to B ritain, was charged with

crimes against humanity for his complicity in Nazi war crimes dur-

ing World War II. He lived in B ritain for a long period. T hat was

an appro pria te exercise of universal jurisd iction . But for jud ges in

one country to reach out to defendants who are not within the

territory of that country seems to me inevitably to politicize the

question of universal jurisd iction . Why single ou t this defendant

and not that defendant? I think that tends to un derm ine the legit-

imacy of courts. There has to be a narrower approach to the idea

of universal jurisd iction than we have in Belgium.

O ne thing I think worth thinking abou t is whether some effort

shou ld be m ade to relate universal jurisd iction to the establish-

ment of the International Criminal Court—that is, should it be

necessary for a country to ask a panel of jud ges of the Intern a-

tional Criminal Court for permission to proceed in a particular



1 1 92 S O C I A L R E S E A R C H

solely to a crusading prosecutor, deciding that he or she is going

to reach out to someplace halfvvay around the world and sav,

This par t icular person is somebody who ought to be t r ied in my

cou rt. T h at is go ing too far.

ME RON : I have Ken who asked, and th en Ju dg e W ald.

AN DER SON : I ju st wan ted to go back to the q ues tion of the tr i-

bun als , because I have com e ou t as a s trong su pp orte r of the mil-

itarv' tr ibun als, altho ug h ag ree ing in almo st ever)' instan ce w ith

Ar) 'eh's crit icisms of the original formulation of them. The prob-

lem, fundamental l) ' , with what ' s going on in Guantanamo is that

the administration is now discovering that i t has mostly got the

wrong group of folks there, from any standpoint of a tr ial . The

administration has a group of f ighters who appear to be low-level

folks who pro bab ly can ' t tell th em a lot. But at the same tim e, they

don' t want to send them back into a situation in which they could

again become fighters. I generally agree with Ruth Wedgwood's

positions on these issues, but I disagree with the proposed

method of going with some kind of status crime in the form of a

conspi racy theory . In te rna t iona l humani ta r ian law provides

ample scope for the United States government to deta in these

fighters w ithout ch arges , at least as lon g as there 's so m e kind

of

active hostil i t ies going on against Al Qaeda. Sure, there can be a

major argument about how long one can detain, and when act ive

hostilities are over, and when it 's no longer really a confiict and

you'd have to le t them go. But I don' t think that the choices are

simply a m atte r of We have to com e up with som e novel theorv'

that involves essentially creating a status crime, such as 'being a

m em be r of Al Q aed a as such' , or else le t the m go

now

I think

Professor Wedgw ood is w ron g to push us in that d irectio n.

MER ON: Ju dg e Wald?




jurisprudence, and the problems that we ve alluded to here abovit

Cuantanamo Ba) . Apart from our o\Nn conspiracy law, which has

been played out in the Smith Act, I m sure ever) body knows that,

starting with Nuremberg, and then going through the two tri-

bunals,

but especially our tribunal, the so-called criminal enter-

prise doctrine is a much used doctrine. In fact, Milosevic is being

prosecuted pursuant to it, and so are several other of the higher

leaders, but it hasn t been used by the prosecutor exclusively with

the high leaders. It s been used, for instance, for people involved

in the administration of a prison camp, as it was in Nuremberg—

that is, some of the lower level people. So that you were actually

having a development of the doctrine. And this, I understand

from reading newspaper reports—not Ruth Wedgwood, but just

plain newspaper reports—is being looked at by the government

for whatever guidance it can give them for their OWTI ends. So we

may well see some use by our own country of the international

humanitarian law that is being issued in other contexts by the tri-

bunal in deciding what to do with the people in Guantanamo.

MERON: Thank you. Judge Wald. Professor Walzer, let us think

about the unthinkable: nuclear weapons. Based on the Cold War

model, we think of nuclear weapons as intended for deterrents

of a catastrophic attack on the United States or other countries.

And in your books you have wTitten about the immorality of

holding innocent civilians hostage in the context of deterrents.

Now, imagine for a moment that we had credible evidence that

Al Qaeda had small nuclear weapons that it would like to use

against New York. Imagine further that the recent attempts to

defeat Al Qaeda had failed. It was not taken for granted that the

operation in Afghanistan would be successful; many people

thought it would be a failure. Imagine, further, that Al Qaeda is

still hiding in those remote hideouts and caves in Afghanistan, in




get ed, small, relatively clean (if that exists) nu cle ar w eap on s.

WThat w ou ld you do ?

MICHAEL WALZER: I was sitting here feeling verv' pleased to be

exempt from all the legal discussions.

ME RON : We ju st w anted you to have a goo d rest .

WALZER: I actually have opinions on all the questions you've

been asking. But they a re uneduca ted opinions , ce r ta in ly

unlawyerly opinions, and not appropria te here . The hypothet ical

you've p ose d: I think I wo uld ju st reject i ts central p oin t. I t 's cer-

tainly possible; in fact, our government has to assume not only

that there are terrorist organizations trying to get hold of nuclear

weapons, but that organizations exist that would use them if they

did get hold of them.

^nd

th ere are possibly states th at wo uld,

under cer ta in c ircumstances, help terror is t organizat ions get hold

of w eap on s of this sort. A nd all of this justifies, it seem s to m e,

wars like the war in Afgha nistan, an d justifies prettv' tou gh -

minded police work against these groups. But if military experts

cam e to me an d to ld m e tha t the only way to preve nt an attack was

to use these weapons ourselves, and to use them first: I think that

I would look for other militarv' experts.

ME RON : I qui te agre e, bu t suppose the o the r mil itary exper ts te ll

you the same thing.

WALZER: My experience of politics, which mostly consists in

watching politicians, is that they get the advice they want, and I

would make sure that I got the advice I wanted in such a case.

There have to be other ways of fighting; there are other wa>'s of

fighting. We have already engaged with Al Qaeda forces in ver>'




MERON: Ken, do you have comments on that? Do you agree

with him?

ANDERSON: I agree , in this case. It s a pruden tial reason , which

is that crossing the nuclear line even with devices that are small

and dig dowTi deep, and all the other characterizations that have

come out in the newspapers, nonetheless does cross that line.

That would be a huge error and a major justification for lots of

other people around the world—probably in India and Pakistan

to start with—to develop and use tactical nukes.

But I think tha t there s a broa der question tha t goes beyond the

nuclear war question here, which is really the question of pre-

emptive action against people and states that you think may be

acqu iring such W ^ D poten tials against you and may be v\illing to

supply them to others. My view is that preemptive action against

Iraq is bo th justified and an extremely good idea before its W ^ D

programs go any further. This goes back to some of Professor

Walzer s comments in the first session, bu t I would certainly reit-

erate tha t I think th at action against Iraq at this po int would make

an enormous amount of sense.

MERON: Let us move on to another question: humanitarian

intervention. This can arise in the antiterrorism context, but pri-

marily of course when there is need to stop atrocities, crimes

against humanity, and so on. And let us relate this to the ICC. This

is a question I would like to ask of all the panelists. Suppose the

Security Council of the U nited N ations is abo ut to adopt a Chap-

ter \1I resolution authorizing an intervention to stop atrocities.

The intervention would then come completely within the legal

concepts of the charter. Of course, the Securit) Council cannot

orde r states to con tribu te forces and to do the jo b of the militarv ;

this has always been done by countries agreeing to send forces in

harm s wa) .




its air force. It is the only power that could inter\ 'ene quickly and

put and end to atrocities. Now, imagine further, that our experts

from the Pentagon have persuaded the WTiite House, and the

Wlii te House told the secretary general of the United Nation and

the m em be rs of the Security C oun cil, W'e wo uld ag ree to inter-

vene,

provided tha t the same Ch apter VII resolution would gran t

members of the armed forces of the United States immunitv ' or

exe m ption from ICC jurisdic t ion for any al leged crimes com m it-

ted during the operat ion. If you do not agree, there wil l be no

operat ion, and at least for a short t ime, or maybe even a longer

t ime, hu nd re ds of thotisands of peop le will be ki lled.

WTiat do you do? Let me start wdth Professor Walzer.

WALZER: This question goes to the political issue of multilateral-

ism and unilateral ism. Your hypothetical example reflects an

argument that I have heard often in Europe as a cri t icism of

America 's apparent preference for uni la teral act ion. The argu-

ment goes this way (it 's not presented this way, but this is what it

amounts to): the Europeans say that when a decision is being

m ad e abo ut w heth er a part icular war is jus t and necessary, they

want to be full partners, as they would be in the Security Council

discussions that you describe. But once a decision is made that a

par ticu lar war is in fact ju st a nd necessary, they wa nt the U nite d

States to fight it , or to do 95 percent of the fighting. And then, of

course, they want .American soldiers to be liable to charges of war

crimes from which their soldiers wil l be exempt, not because

they're legally exempt, but because they won't be involved in the

fighting.

Now, I bel ieve that the U nited States should jo in an d sup po rt

the ICC, but that argument doesn' t seem to me ei ther poli t ical ly

or morally tena ble. At the sam e t ime , Am erican unilateral ism isn ' t

tenable ei ther—and not primari ly because of our unilateral deci-



P A N EL D I S C U S S I O N 1 1 9 7

ing, but i f there 's to be mult i lateral ism at that s tage, there has to

be mu lt ilateral ism later on also, wh en th e fighting be gins. T he re

has to be a real and substantial division of labor in the field. And

that means that European states have to invest the money neces-

sar)'

to ma ke it possible for the m to jo in us in a division of lab or

on the battlefield. I was am azed to he ar th at the G erm an soldiers

who went to Afghanistan, not to fight, but to help after the fight-

ing, f lew to Afghanistan on rented Russian planes. The Germans

have a rapid deployment force, but they do not have the means to

deploy it, because they have n ' t appro priate d the m one y to buy or

bui ld the cargo planes and the t ransp ort p lanes . Isn ' t there some-

thin g to worry ab ou t there— if you believe in mu lt ilateral ism?

MERON: Let us assume that in the case that we discussed there

would be European participation, but it vvotild not be significant

eno tigh to do the jo b . An d th e U nite d States says, We wa nt this

condit ion, or we don' t play the game.

NEIER: The intervention in Kosovo was by NATO. Therefore i t

was a mul t i la teral in tervent ion. In fact , the Pentagon was

extremely unhappy with the restrict ions that i t fel t were imposed,

because th e in tervent ion was imposed by NATO .

You will recall tha t after S ep tem be r 11 , NA TO for th e first t ime

invoked Article 5 of its charter, saying that an attack on one is an

attack on all . NATO presented itself

s

ready to un der tak e the war

in Afghanistan. Given our experience with a mult i lateral war in

Kosovo, the United States essentially rejected that resolution by

NATO. I bel ieve NATO is now in decline because the United

States has indicated that it did not want NATO to play such a role.

Hence, i t is not al together fair to suggest that other countries

aren' t wil l ing to bear a burden when we rejected a mult i lateral

effort in Afghanistan. Moreover, one should consider some other

ci rcumstances . T he U ni ted States has be en enthusiast ic ab ou t the




provide logistical help to the Mrican forces, in the form of planes

and so forth. I t would only be Mrican forces that would actuallv

engage in the combat in .Africa, however.

ME RON : Just ice Goldstone?

GO LD STON E: I do n t believe that any coun try outside the U nited

States has any political r ight to expect or demand that the United

States become militarily involved anywhere outside the United

States, if it does n o t wish to d o so . A nd if the U ni ted States is asked

to interv ene in E ur op e, or Asia, or M rica, i t is entit led to lay down

whatever conditions it likes. If the conditions are met it will get

involved, and if they re no t m et, the n they re no t going to get

involved. And clearly United States political interests will dictate

when they re goin g to get involved an d wh at the con dition s will be.

But ha\ing said that, I don t believe that the rest of the world is

going to or should accept as one of those condit ions that the

United States is above the law and can act as an outlaw. If the

United States gets involved it must be subject to the same laws as

the rest of the internat ional community. That is internat ional

humanitarian law. .And that sort of exceptionalism has been

rejected and \\i l l continue to be rejected, I have no doubt, by

Am erica s closest allies an d friends in E uro pe an d in ot he r

democracies because it is simply not acceptable.

MERON: Thank you, Richard. Ken, on the same point?

ANDERSON: First , on United States exceptionalism. On that, I

ag ree with everything Jus tice G old ston e said, u p to the po int of

appH ing th e same stan dards. I t s no t a quest ion of applying th e

same stan dards ; i t s a quest ion of who s going to m ake the judg -

ments about them and how they apply to indi \ idual cases and




GOLDSTONE: They are having trouble telling us what the sys-

tem is.

ANDERSON: Hays Parks will disagree with you on that. But let s

go back to the question of what you have with a multilateral force.

Europe does not have a lot at this point in terms of airlift opera-

tions to faraway places. I don t think Aryeh s right in describing

that as being merely a function of the United States turning it

down. The Erench and the Germans and the rest of NATO, with

the excep tion of the British, didn t have aircraft that were capable

of landing at nigh t in the way that th e American aircraft could on

the airfields in Afghanistan. It s jus t operationally no t going to

work. On the other ha nd , while proudly representing myself as an

American unilateralist, I do want to press Professor Walzer a little

bit on this question of

who s

going to do the fighting. The fact is,

the U nited States does nee d allies—and I say this as an unabashed

unilateralist—precisely because in places like Afghanistan we

expect to go in and do the fighting and then we really do expect

somebody else to come in and maintain the peace. So there is a

question abo ut who is going to pu t themselves in harm s way if

you agree, as I think is clearly true in Afghanistan, and very true

in almost all peacekeeping situations, that the most dangerous

work very often turns out to be on the shoulders of the people

who m aintain the peace after

wars.

And I say this as an Am erican

unilateralist. I m no t fond of Europe s positions on

ny

of these

things. But we Am ericans are presum ing that the Europeans will

come in to clean things u p. That s dangerous work and does

change the equation somewhat from how Professor Walzer repre-

sented it. So if I could press you a little bit, Michael, about that.

Does that change how you would think of it?

WALZER: Well, I would prefer a full division of

labor

I think they

should share in the fighting and we should share in the peace-




the Pentagon. There are good moral and poli t ical reasons to pre-

fer mult i la teral peacemaking and peacekeeping. .And vou bave

only to look at the militar) budgets of the European states to

know that they don t have a s trong c om m itm ent to e i ther of

those. They are more prepared for peacekeeping, but i t is an

open question whether they will be prepared to use force if that

is necessar) in the course of any given peacekeeping operat ion.

Th eir reco rd on that is no t very goo d. I accept that th e U nited

States sho uld n ot be ex em pt f rom intern at ion al just ice , but i t

seems obvious that w hen th ere is full mu ltilateral particip ation in

war, in p eacem aking and peac eke epin g, w hen ever) body has sol-

diers in the field who are liable to be charged with war crimes, it

will be m uc h easier to ma ke th e case that l iability sho uld b e equ al

across the board.

ME RON : T h an k you so m uc h. Professor Walzer. Aryeh, how effec-

tive do you think the ICC is l ikely to be when it comes to prose-

cution of crimes of terrorism? You do recall that crimes against

humanit) provision does provide the normative—

NEIER: T he Int ern atio na l C rimina l Co urt v\ill only be able to deal

with terrorism if terrorism is committed on the ver) large scale

con tem plate d by the c on cep t of crimes against hum anit) . I would

imagine that most terror ism is not going to resemble what hap-

pe ne d on Sep tem ber 11; most terror ism is going to involve

smaller scale crimes. Therefore, the crimes would not f it into the

mandate of the ICC. There is a lso the quest ion of where the

crimes will be committed. If they are committed on the territor)-

of states tha t have n o t ratified th e treat) , un less th er e were a ref-

eren ce by the Secur i t ) C ouncil , the ICC would n ot have jur isdic-

tion. Accordingly, I anticipate that the ICC will have a ver)- l imited

role in dealing with terrorism. I t may be that long in the future,




MERON: Richard, would you speculate about the first type of the

case, the first case tha t may come u p before the ICC?

GOLDSTONE: That is a crucially important question. I believe

that the future success and credibility of the ICC is going to

depend very much on where it gets involved in its early years.

Obviously my first wish is that it should have n o business, because

there are no vrar crimes committed. But that would be overopti-

mistic, and certainly would not be what the history of the twenti-

eth century should have taught

us.

So I think we must accept that

war crimes are going to continue to be committed all over the

world. The issue is where the ICC is going to get involved. My

ho pe is that in its early years it will receive a C hap ter V reference

from the Securit) Council, and that could well happen.

Assuming hypothetically that there was a chemical weapon \\^r

launched by Iraq on Iran and serious war crimes were committed;

in that situation I would not cinticipate that the U.S. would veto a

reference by the Security Council for the ICC to investigate and

prosecute such a crime. It would be in the political interests of the

United States for that to hap pen. There would be widespread pub-

lic support for it and the United States, rather than veto it, could

well take the lead. It would not be inconsistent

with

its approach to

the ICC—having the Security Council act

as

the gatekeeper. On the

oth er hand , if the ICC, because of the particular countries ratifying

the Rome Treaty, were to get involved in the sort of situation tha t is

happening in the Middle East, I think there would be strong objec-

tion from the United States, and possibly from some European

countries. And one can t ignore the relevance of these political

happenstances on the future credibility of the ICC.

MERON: Thank you so much. Aryeh, you have some comments

on that.




]

was the D em ocratic R epub lic of the C on go. It faxed in its instru-

ment of ratification. That was accepted by the United Nations. 1

thought it w;is immensely interesting, because Congo has been

invaded by several other Mrican countries. They have troops there,

primarily for the purpose of controlling the mineral and timber

resources in the particular parts of Congo they occupy. They are

looting those resources. T he gov ernm ent of Con go do esn t have the

capacit) to get th em to remov e the ir troo ps. By ratifying the statute

for the ICC, Congo has now given them an incentive to withdraw

their troo ps. If they d on t d o so by July 1, an d if their forces com mit

VNar crim es as they have co m m itte d th em u p to now, tho se co un -

tries—and they include Rw anda, Ug anda , Zimbabwe, Nam ibia, an d

Angola—could face prosecution before the ICC.

Something similar is occurring in another countr) where the gov-

ernment lacks its own capacit) to deal with war crimes: Colombia.

President Andres Pastrana, whose term concludes soon, is trying to

sec ure ratification of th e d-eat) before he leaves office. If h e succeeds,

then the guerrilla forces, the EARC, and the ELN, and the right-wing

militias that have be en com m itting great crimes in Colom bia

will

face

the possibilit) of indictment by the ICC. This is a phenomenon we

did not anticipate. Governments that are themselves incapable of

dealing vvith terrible crimes that are co m m itted on their territory are

tur nin g to the ICC . If

were the pro secu tor before the ICC, you can

be sure that Con go would be at the to p of my list of countrie s to look

at. A nd if Colom bia also ratifies, it w ould b e n ex t in line.

MERON: Professor Walzer?

W^\LZER: Th at s a ver) inte restin g sug gestion, bu t I wo uld thi nk

it potentially disastrous. Suppose such a case were brought, and

suppose that the Congolese government won the case against the

var ious intervening sta tes , and that there was an ICC condemna-




NEEER: That raises the larger question of how the International

Criminal Court is able to enforce its indictments. The court will

only be able to

tr>

those it app rehend s. So it would have to app re-

hend defendants in order to conduct trials. This was a terrible

prob lem for the Yugosla\da cou rt when it began. Over time, how-

ever, the pressure built up . It beccime necessary for governments

to turn over those who were indicted an d for interna tional forces

to apprehend those who were indicted. Also, in the case of the

Yugosla\ ia tribunal, even when it was no t clear how it would

ap pre he nd people like Karadzic and M ladic, the re

was

great value

in bringing the indictments against them. It delegitimized them.

It excluded them from the Dayton peace talks. It excluded them

from exercising political infiuence in Bosnia after the end of the

war. Governments in Angola, Zimbabwe, Rwanda, and Uganda

are not eager to be indicted by the International Criminal Court.

I believe this will make them fearful. It could be a factor, even

before the jurisdiction of the court kicks in, in persuad ing them

to withdraw their forces from Congo. If they do not withdraw

their forces, or at least rein in their forces, and preven t them from

com mitting the crimes that would be subject to the jurisdiction of

the ICC, they would face p rosecution. I think this is an extremely

positive development.

e

were being told at one point that the

ICC might prevent various peace settlements because dictators

would have no incentive to give up authority for fear of prosecu-

tion. Now we are seeing tha t the ICC might effectively contribute

to peace.

GOLDSTONE: If can just add, in support of what Aryeh says, in

the very early days of the Rwanda tribunal I announced the iden-

tity of some of the people we were looking for, and some were in

Kenya. And the president of Kenya immediately said th at if we sent

ou r investigators into his country they would be arres ted, an d that

he was not p repa red to extradite, to transfer any people w anted by



1 20 4 S O C l A l R E S E A R C H

demning that atti tude. The president of the Securitv Council

made an appropriate statement, sa)ing that this was quite unac-

ceptable and a breach of the Securitv Council resolution. And act-

ing under that pressure the a t t i tude of the Kenyan government

ch an ge d v\ithin a week. An d we got the g reen light to send ou r

investigators. .And the transfer of indicted persons followed.

MERON: W^ have seen that there are uvo visions of the first case

that will come up. Either referenced by the Securit) Council,

under Chapter \TI , somewhat using the model of the ad hoc tr i -

buna ls but a lso using the new structure , and the new jud ge s, an d

the new prosecutor of the ICC. And the second is, because states

might be involved in various not terribly prett) things, they have

become par t ies to the s ta tute .

em rks

RICHARD J GOLDSTONE

During the f irst years of their existence the two United Nations

ad hoc c r imina l t r ibuna ls—for the former Yugoslavia and

Rw anda, respectively—su ffered a sub stantia l lack of credibilit)-.

There was a perception that the Western powers had set them up

to mollify human rights activists at home who were concerned

that no effective steps had been taken to prevent some of the

worst human rights violations since W^rld W^r II. That was fol-

lowed by bureaucratic inertia, which substantially delayed the tr i-

buna ls f rom becoming opera t iona l .

This disappointing start for the f irst international war crimes

tr ibunals changed for the bet ter when invest igat ions began in

earnest and indictments were issued. Arrest warrants followed




having larger number of defendants arrested and transferred to

the seat of the tribunal in Arusha, Tanzania.

The Yugoslavia tribunal had no option but to begin with the

smaller num be r of war criminals with whom the available victims

and witnesses came into contact. Th ere were no smoking guns

left by the leaders who were most guilt\' and circumstantial cases

had to be developed against them. This was accomplished by

establishing a patte rn of war crimes over an a rea of Bosnia, which

was politically valuable to the Bosnian Serb administration of

Radovan Karadzic and his military'

chief

Ratko M ladic.

WTien, in July and November 1995, indictments, which

included charges of genocide, were issued against both Karadzic

and Mladic, the problem was the unwillingness or inability of

United Nations (and later NATO) troops to arrest those leaders.

This problem still persists, notwithstanding recent unsuccessful

attempts to make such arrests. Th en , in the wake of ethn ic cleans-

ing in Kosovo, the president of the Federal Republic of

Yugoslavia, Slobodan Milose\ic, was indicted for crimes against

humanit)' and other war crimes. Not long after, he was forced

from power and w s su rren de red by his successors for trial at T he

Hague. New indictments followed for genocide allegedly com-

mitted by the Serb army in Bosnia and Croatia. The trial contin-

ues and is expected to last at least until the end of 2003.

In Arusha, the Rwanda tribunal has placed former leaders on

trial. The former prime minister of Rwanda was found guilty of

genocide and has been sentenced to life imprisonment. That tri-

bunal has also held that systematic mass rape, in the circum-

stances established by the prosecutor, am oun ted to genocide.

The two tribunals have been responsible for significant

advances in humanitarian law in a number of important areas.

They have dem onstrated that if law is implem ented , it advances:

if it is ignored, it stagnates. This and other successes of the two

United Nations tribunals encouraged and hastened the establish-




become i ts most significant opponent. That notwithstanding, the

Rome Treat) establishing the ICC now has some 74 ratifications

and will be functional in

2003.

Th e success of the ICC will d ep en d

on the nature of the cases it will consider in its early vears. If it

assumes juri sd ictio n for significant war crimes an d investigates

and prosecutes them professionally and efficiently, it will build

credibili t) an d at tract sup po rt form the global comm unit) . T he

Securit) Council itself might well call upon it to use its Chapter 7

powers rather than choosing to establish other ad hoc tribunal .

There can be no doubt that the ICC will have much to learn

from the successes and failures of the two United Nations tri-

bu na ls. Its credibilit) will be crucial to its success. U po n tha t c red-

ibilit) v\i l l depend i ts funding at an adequate level and the extent

to which go vern m ents will be p re pa re d to comply with i ts orders .

There can be no doubt that its success will herald the end of

impunit) for war criminals.

meron et al - where do we go from here, conclusion

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