Vol. 9 No. 6 (June 1999) pp. 211-213.

JUDGING WAR CRIMINALS: THE POLITICS OF INTERNATIONAL JUSTICE by Yves Beigbeder. New York: St. Martin’s Press, 1999. 230 pp.

Reviewed by Wesley T. Milner, Department of Political Science, University of Evansville.


Article 10 of the Universal Declaration of Human Rights states that war criminals (or those facing any criminal charges) are entitled "…to a fair and public hearing by an independent and impartial tribunal…." Released almost fifty years later to the day, JUDGING WAR CRIMINALS: THE POLITICS OF INTERNATIONAL JUSTICE addresses this important and vexing aspect of human rights violations and the desire to bring those responsible to justice. It is especially timely with the July 1998 UN Diplomatic Conference in Rome attempting to establish a permanent International Criminal Court. This controversial initiative is groundbreaking in that it will be a permanent body focusing on the judgment of individuals rather than states.

In the opening few pages of this work, Yves Beigbeder pulls no punches in his somewhat normative objective. The purpose of the book is to assist in the efforts to create an effective, permanent, international criminal court. Having said that, the well-written account of the historical precedents to this endeavor is surprisingly balanced and fair. Though there is never any question as to the author’s opinion, the detailed chapters leading up to the proposition of an international criminal court are very interesting, thought-provoking, and supportive of his position. This treatise on an international criminal court should prove very useful for political scientists, legal scholars, practitioners, and even lay persons generally interesting in human rights and international law. It successfully strikes a delicate balance between being overly technical or legalistic and remaining interesting and relatively easy to read.

The author begins by providing a very comprehensive investigation of humanitarian law dating back to the Indian Code of Manu (developed between 200 BC and AD 200). Covering the more recent accomplishments (such as the Laws of Geneva and the Hague, UN Charter, Universal Declaration of Human Rights, and the Genocide Convention), Biegbeder adeptly illustrates the link between humanitarian law and human rights movements. He correctly observes that the humanitarian violations during WWII and later international and local conflicts indicate that humanitarian conventions, while necessary, do not provide sanctions against those individuals who violate the norms. Therefore, instruments of a judicial and enforcement nature are also required.

The next eight chapters systematically examine (and criticize) the various alternatives that have preceded the movement towards an international criminal court. The first two examples that provide the basis for any current court are the Nuremberg and Tokyo tribunals that followed the Second World War. Both of these attempts at dispensing justice had serious shortcomings. Neither was created by an international treaty, which angered international law specialists. Also, since the rulings were decided by the Allied Powers, it was viewed as biased victor’s justice. Indeed, the Tokyo experience was even more tainted than Nuremberg in that the American government and occupation forces completely dominated the process. Another major controversy was the fact that only German and Japanese war crimes were considered. It has been argued that the Allies’ indiscriminate air bombing on German and Japanese cities at the end of the war were also serious international law violations (that were never addressed). This is especially true when considering the legality of atomic bombing.

While exposing the serious flaws in both of these proceedings, Biegbeder is fair in giving both Nuremberg and Tokyo tribunals the credit they deserve. The trials played important political roles in that they reduced tensions between the victors and the defeated by somewhat lessening the victims’ desire for revenge. Further, they established the principle that individuals at the highest level of government could be prosecuted and punished by an international body for serious breaches of humanitarian law.

In a somewhat misplaced chapter, the author also describes selected cases of genocide and massacres that have gone unpunished. These include the Armenian genocide of WWI, Soviet massacres under Stalin, Indonesian conflict with the Suharto rise to power, China’s oppression under communism, and the Khmer Rouge during the late 1970s. While admittedly selective and biased in the case studies, Beigbeder does provide an interesting insight into the rationale for genocide and the reasons for "intervention fatigue" by the world powers.

Turning to the use of truth and reconciliation commissions, the author highlights numerous Latin America examples (Bolivia, Chile, El Salvador, and Guatemala) as well as the most recent South African experience. Though stressing that truth commissions cannot be a substitute for criminal prosecution, he concedes that they can play a useful role in unstable situations where a state is making the transition from dictatorial rule to a more open, democratic regime. Here, the commissions should have a time-limited mandate of perhaps a one or two-year period. I also agree with the recommendation that amnesty should not be a blanket policy but rather granted on a case-by-case process, as in South Africa. Broad amnesty could hamper the important goal of identifying perpetrators and bringing reconciliation.

After disputing the effectiveness of national justice and foreign courts, Biegbeder discusses the often-mysterious peoples’ tribunals. He argues that these self-appointed bodies created by individuals (rather than governments or IGOs) are not legitimate and cannot be a substitute for ad hoc intergovernmental War Crimes Tribunals, or for a permanent International Criminal Court. These tribunals do not create international law and their rulings are not binding on individuals or states. Further, their targets tend to be biased against the developed world. While perhaps true, I would argue that many other attempts at justice also tend to have a bias - but against the developing states. Finally, peoples’ tribunals are hampered by concentrating on collective rights rather than individual human rights.

Notwithstanding the push for a permanent International Criminal Court, the author is most generous in his analysis of the contemporary UN tribunals for the former Yugoslavia and Rwanda. First, these attempts represent significant progress in the field of international criminal law. Building on Nuremberg and Tokyo, these tribunals better meet the requirements of an international composition for a court, without the problems of "victors’ justice" as was evidenced in the WWII trials. Further, both Yugoslavia and Rwanda are viewed as "real-life" tests for the proposed permanent International Criminal Court. While indeed representing progress, neither of these tribunals has enjoyed complete success. Both suffer from inadequate funding. Also, the Rwanda Tribunal has been handicapped from the decision to have only one prosecutor serve both tribunals. By 1998, however, Rwanda showed signs of progress by obtaining custody of numerous primary leaders and perpetrators of the genocide. This cannot be said for the Yugoslavia Tribunal. I agree with the author in stating that if the Tribunal for Yugoslavia fails to arrest the leading perpetrators soon, it will be viewed as a failure and the impunity of those guilty of genocide will be enhanced. This could further erode the credibility of the UN Security Council as well as the entire UN as an effective organization. With the most recent indictments of Yugoslav President Slobodan Milosevic and Serbian President Milan Milutinovic, it is even more important to move beyond the indictment stage. Having said that, we must acknowledge that the indictment of Milosevic does represent the first time in history that a sitting head of state has been formally charged with war crimes by an international tribunal.

In its brief, concluding chapters, JUDGING WAR CRIMINALS details the slow movement towards an International Criminal Court and offers some predictions.

The 18-judge court, which would represent 18 different nationalities, would serve for a nine-year non-renewable term. The court would also have four organs consisting of 1) a Presidency; 2) a Trial Division, a Pre-Trail Division, and an Appeals Division; 3) an Office of the Prosecutor; and 4) a Registry. In terms of jurisdiction, the Court would concentrate on four core crimes: aggression, genocide, crimes against humanity, and war crimes. Biegbeder correctly concludes that the Rome Conference was a success in that it overcame significant substantive and procedural objections by numerous countries, both developed and developing. If ratified by sixty countries and brought into force, it would maintain a fair degree of independence while retaining a role for the Security Council. However, like its predecessors, it will not have its own police force, thereby sidestepping the issue of actually arresting indicted individuals.

Overall, the author’s argument for a permanent International Criminal Court is clearly organized and persuasive, given the alternatives. His systematic and detailed exposition of the various precursors to the ICC should be well received. The only shortcoming in this work is that the reader is left wanting more details of the political issues that continue to surround the implementation of the Rome Conference. While providing the essential developments, a more comprehensive discussion (like the previous chapters) would be even more satisfying.

Copyright 1995