[Victor's Justice: From Nuremberg to Baghdad • By Danilo Zolo • Verso, 2009 • Xiii + 189 pages]
One way to look at war likens it to domestic crime. If it is wrong for someone to initiate force against a person who has not violated rights, why should matters change when a group of people, acting under the command of a nation's leader, invade the territory of another country?
Further, should not war crimes, i.e., violations of rights during a war, be treated as criminal offenses as well? Proponents of this view often suggest that, just as courts punish individuals within a nation who commit crimes, so should international courts put on trial and punish political leaders and soldiers who violate rights.1
Hans Kelsen, the most famous European legal theorist of the 20th century, suggested in 1944 exactly such a system.
In Kelsen's opinion, the principal cause for the failure of the League of Nations lay in the fact that at the summit of its power structure was a Council representing a sort of worldwide political government, rather than a Court of Justice.… [In his proposal] the Court was to indict individual citizens who were guilty of war crimes, and their countries were to be held responsible for making them available to the court. (p. 24)
Whatever one may think of this proposal, Danil Zolo, a leading Italian political and legal philosopher, forcefully contends that the endeavors at Nuremberg and elsewhere to bring to justice perpetrators of war crimes have little to recommend them. Kelsen called for a neutral court to try all individuals guilty of war crimes, whether from victor or vanquished nations. What took place at Nuremberg and after was quite different: only those from defeated nations were tried, and the winners conducted the trials.
Nothing has befallen the criminals responsible for the atomic massacres at Hiroshima and Nagasaki in August 1945, or for the saturation bombing which, when the war was already won by the Western allies, killed hundreds of thousands of civilians in various German and Japanese cities. Nothing has happened to the political and military leadership of NATO, responsible for the "humanitarian" war of aggression against the Yugoslav Republic, which surely ranks as a "supreme" international crime. (p. xi)
In Zolo's view, international courts have not become, as Kelsen wished, an instrument to promote peace and justice. Quite the contrary, they have served to ensure American dominance of post–World War II politics. Nations unfortunate enough to lose a military struggle with the United States become subject to "victor's justice." The result is a "two-tier" structure of justice in which opponents of America face strict scrutiny while America and her allies are immune.
In practice, a dual-standard system of international criminal justice has come about in which a justice "made to measure" for the major world powers and their victorious leaders operates alongside a separate justice for the defeated and downtrodden. In particular, international crimes of jus in bello, which are normally considered less serious than the crime of aggression, have been prosecuted relentlessly and in some cases punished with great harshness, in particular by the Hague Tribunal for the former Yugoslavia. At the same time, aggressive war, a crime predominantly committed by the political and military authorities of the major powers, has been systematically ignored. (pp. 30–31)
Kelsen, by the way, quickly repudiated the Nuremberg Tribunal. An unneutral court that operated only on the defeated powers did not conform to his conception of the rule of law.
Kelsen argued that the trial and sentence of Nuremberg could not be allowed to stand as a legal precedent. If the principles applied at Nuremberg were to persist, then at the end of every war the victorious nations could put the governments of the vanquished on trial for committing "crimes" unilaterally and retroactively defined as such by the victors themselves.… In Kelsen's opinion, the punishment of war criminals should be an act of justice and not the continuation of hostilities in forms which are ostensibly legal but in reality based on the desire for revenge. (pp. 141–42)
One might object to Zolo's argument by saying that even if the two-tier system is manifestly unfair and contributes to the support of a hegemonic American foreign policy, an important consideration must be allowed its due weight on the other side. Is it not desirable that those guilty of war crimes be brought to justice? Others may be guilty as well, and the faults of the judicial procedures used need correction, but must we throw out the entire concept of individual legal guilt for war crimes?
Zolo is well prepared for this objection, and he offers a characteristically radical response. He sees little evidence that such trials lessen the incidence of war crimes or aggression. Without a deterrent effect, they merely express vengeance. Our author has little use for retribution:
Prosecutors and judges do not seem to have given the slightest thought to the issue of the purpose of punishment or its effects on the personality and future of those convicted. The sanction — whether the death sentence, life imprisonment or a specified prison sentence — had a purely affective value. It was merely a matter of persecuting the guilty party so as to cause suffering, mortification and humiliation to the point of physical and moral annihilation.… The sentences handed down were clearly designed much less to prevent any future perpetration of crimes then to celebrate the might of the victors — themselves responsible for grave international crimes — just as, in pre-modern times, the "splendour" of the condemned man's torment was a celebration of the majesty of king or emperor. (p. 146)
Zolo in this connection makes apt use of the work of René Girard on the scapegoat mechanism. (See, e.g., Girard, The Scapegoat.)
Even if Zolo has raised effective objections against judicial punishment of war crimes committed by defeated nations, he must confront another objection. Is he not making very heavy weather of these trials? Whatever their flaws, do they not occupy a minor role on the international scene? But Zolo is after much bigger game.
A principal justification for war today is "humanitarian." In the preparatory propaganda barrage that led to the Iraq War, the crimes and abuses of Saddam Hussein played a key role. Again, Jean Bethke Elshtain and other defenders of the American invasion of Afghanistan adduced the manifest inequity of the Taliban's policy toward Afghan women as a reason that supported intervention.2
The trials that arouse Zolo's concern form a part of a larger ideology. Because rights have been violated, it is argued, force must be used if this is the only way to eradicate evil regimes. Against this line of thought, Zolo raises a vital point. War itself will almost certainly violate rights in a horrendous way:
Finally, we must ask ourselves whether modern warfare, with its weapons of mass destruction, can coherently be used by international institutions — or military alliances such as NATO — charged with protecting universal values like human rights.… The legitimation of "humanitarian war" is the equivalent of a contradictory negation of all these principles. In the case of war for Kosovo, for example, in practice the death sentence was enforced on thousands of Yugoslav citizens, in the absence of any investigation of their personal responsibility.… Thousands of simple citizens [were subjected to] lethal bombing raids, in which … murderous cluster bombs and depleted uranium missiles were also deployed. (pp. 60–61)
If at times Zolo goes too far in his skepticism about universally valid rights, he has nonetheless shown the fallacies of an all-too-common judicial model of international relations. What Isabel Paterson called "the humanitarian with the guillotine" poses a constant danger.
1 Jeff McMahan argues forcefully in Killing in War that individuals bear moral responsibility for aggressive war, but he does not endorse a punitive legal order in the style of Nuremberg. See my review in The Mises Review, Summer 2009.
2 See Elshtain, Just War Against Terror and my review in The Mises Review Summer 2003.