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´Operation: Last Chance´, dilemmas of justice, and lessons for international criminal tribunals

By Sergey Vasiliev

In late July 2013, the Guardian reported that the Simon Wiesenthal Centre (SWC), a global Jewish NGO, had launched a poster campaign in Germany requesting the public to assist in identifying and bringing to justice the last surviving alleged perpetrators of crimes under the Nazi regime. Two thousand posters were hung in the streets, featuring a sinister black-and-white image of the most horrific dead-end the modern-era humankind has seen: the snow-covered rail tracks approaching the gate of the Auschwitz II-Birkenau extermination camp. The inscription underneath the photo reads, in German:


‘Late but not too late. Millions of innocents were murdered by Nazi war criminals. Some of the perpetrators are free and alive! Help us take them to court.’

In our information age, news about this publicity campaign was quickly overflown by the deluge of stirring updates from the hectic world of international criminal justice, preoccupied with events far more recent than the Nazi crimes. But the campaign should give us a reason for retrospection.

International Criminal Law (ICL) enforcement finds itself at the turn of institutional generations and in the throes of a ‘mid-life crisis’. Twenty years into the project’s renaissance, the tribunals continue to experience a daunting reality: the accomplishment of their mandate to achieve limited accountability for (some) international crimes is held hostage to the vagaries of politics, which demarcate the playing field. To an even greater extent than its United Nations Security Council (UNSC)-sponsored predecessors, the International Criminal Court (ICC) depends on the bona fide cooperation of states for evidence and arrests. This cooperation is in many situations faltering or not forthcoming for exactly the same reasons why the Court becomes seized with a matter in the first place: inaction by states or their unwillingness or inability to genuinely investigate and prosecute crimes themselves. In Kenya and elsewhere, the Court is struggling to do its job amid clamorous accusations of illegitimacy and a sharp decline in political support. This state of affairs does not project bright prospects for the effectiveness and viability of the system, and its less patient proponents may soon be pushed to feel disillusioned, cynical, or even demoralized.

There are striking similarities in some of the practical hurdles and conceptual questions the ‘Nazi hunters’ and modern international criminal justice institutions have been facing. How is one to measure success on the winding road to accountability? What can the unwavering commitment to justice accomplish in the long term or, perhaps more importantly, what can it not in the short term? The movement towards ensuring justice for Nazi crimes offers an instructive moral story for the ICC and other courts.

 In the aftermath of Nuremberg, the road towards accountability has been a thorny one. But in the span of 70 years, much has been accomplished to ensure that Holocaust atrocities crimes are paid for. Private initiative and advocacy deserve considerable credit for this success, partial as it were, for persistently urging the governments to effect legislative and policy changes necessary to remove any remaining obstacles in the prosecution effort, for conducting historical research and preserving information that would have otherwise been lost, and for raising public awareness about the painful past in the countries where the crimes had been committed. The work of Wiesenthal and other ‘Nazi-hunters’ has made a difference in cases too numerous to list here. They located whereabouts of suspects, collected testimonials of camp survivors, and provided investigative leads to national law-enforcement agencies. They uncompromisingly called for prosecutions and trials when the political will and capacity to deal with these cases in a devastated Europe, divided by the Iron Curtain, were at their lowest. Their activities have been fraught with controversy and gone against the tide, and they continue to do so. Despite best efforts to seize every ‘last chance’ that presents itself, total accountability has remained an impossible dream.

Bringing alleged war criminals to justice is not a simple undertaking and this task only becomes more complicated with the passage of time. As reported by the SWC, some governments — e.g. Germany, Italy, and the United States — have a better record while others are lukewarm or openly reluctant to deal with the crimes of distant past. Such cases invariably entail scrutiny of issues of political and legal responsibility of governments. As the proceedings in France against Klaus Barbie and Maurice Papon have amply demonstrated, even stable democracies may not be prepared to reopen embarrassing chapters of their history and allow an inquiry into circumstances which might upset consolatory myths or taint the ‘national identity’ of their people. Domestic legal obstacles to such cases are legion: material and temporal jurisdiction constraints, non-retroactivity of penal laws, statutes of limitations, and defences (e.g. superior orders) which, even if formally unavailable, still inform prosecutorial choices. From a prosecutorial perspective, a limited prospect of obtaining a conviction may militate against spending scarce resources on a war crimes case which could rather be allocated to other cases (of which there are enough in overburdened criminal justice systems). Next to that, even if it is decided to proceed, there are intractable practical hurdles inherent in such cases whose inhibiting effect should not be underestimated. Inevitable difficulties with collecting authentic documents and reliable witness evidence dozens of years after the events in question are exacerbated by governments with vested interests to withhold or fabricate evidence. The risk of a show trial based on quasi-evidence is always in the wings of adjudication on politically and historically contentious events.

Over and above the obstacles mentioned, there are questions about the very point of justice and moral dilemmas posed by its uncompromising pursuit in every case. Misconceived manners of attracting attention to the problem of impunity have also made their way into the ICL enterprise. Words such as operation when used next to justice and hunt when referring to human beings, even those suspected of the worst atrocities imaginable, are disagreeable—and demeaning.

In addition, some observers share a feeling of unease when contemplating the ‘justice being done’ to a 90-year old person in extremely poor health. A person who, despite being found fit to stand trial, sits or lies through it in a wheelchair instead, being able to endure no more than a couple of hours of hearings per day, until the moment he doesn’t rise from the deathbed.

Of course, age limitations are legally irrelevant. But as one watches the proceedings in the case of the two surviving former Khmer Rouge leaders before the Extraordinary Chambers in the Courts of Cambodia (ECCC), Khieu Samphan (82) and Nuon Chea (87) — in the ECCC custody since 2007 and on trial since 2011 — a blasphemous question arises: are we doing the right thing? Is it seemly ‘to fire on hearses and those who are about to die’? (The charge provocatively thrown at the ECCC bench by late Jacques Vergès.) The justice effort is racing against time, and the inevitability of the ‘biological solution’ invites one to rethink the limits of human judgment in trying to discern the point at which it should step back before human compassion. Although our competence to question justice may be challenged, it has not become any clearer whose compassion matters and in whom the ‘moral imperative’ of the ICL resides: victims, institutions, their mandate-sponsors, or perhaps in each of us? Whilst the legitimacy of the project tends instinctively be drawn from the victim constituency, it has proven possible to mold the supposed ‘interests’ and ‘needs’ of victims into the constraints of the legal and institutional framework available, thus effectively turning such interests and needs into a rhetorical fetish and object of manipulation.

Those who believe in retributive justice tend to agree that we are doing ‘the right thing’ by going to great lengths to put aged Nazi (or Khmer Rouge) cadres on trial. Everyone who commits atrocities must pay for them, sooner or later. Still, this does not invalidate the question of whether we are doing the ‘right thing’ in the ‘right way’. Where there is no visible prospect that the trial will be completed, the verdict rendered, and, in case of conviction, that a single day of the penalty will be served, we may in fact be justifying the prosecution effort by the special hardships it brings to the men in the dock at their age. If so, the criminal process is being utilized as a tool of punishment — an ‘advance payment’ of sorts before the verdict which we don’t believe will come. This conflicts not only with principles of retribution, including the presumption of innocence, but also with the utilitarian and expressive rationales, as such practice inevitably raises doubts in the minds of those who are supposed to benefit from its ‘didactic effects’.

The determination to proceed in the way we are used to — and because we don’t know how else we could do it — is an unpersuasive and debilitating justification which does not help legitimacy. Over and above fair and a fortiori expeditious proceedings, the cases of senior-aged accused call for creative procedural solutions and flexible approaches. For instance, the ECCC’s current framework may be ill-suited in this respect because confessions and agreements on facts are not apt to result in significantly shorter trials, let alone in trial-avoidance. By contrast, a few cases of terminally ill defendants at the ad hoc tribunals (e.g. Milan Simić at the ICTY and Joseph Serugendo at the ICTR) were processed through (negotiated) guilty pleas. This arguably struck the fine balance between judgment and compassion. In the narrowest of circumstances, consensual or negotiated dispositions may be optimal for both moral and policy grounds, and such legal option should be available. This is not a panacea but only underscores that doing justice is all about how one does it.

Another parallel with international criminal justice ‘operations’ conjured up by the Nazi-hunters’ movement is that both are susceptible to the perennial selectivity objection. One class of alleged war criminals is pursued systematically and forever so that the respective class of victims is vindicated. But other possible perpetrators of comparable atrocities are not being ‘hunted’ down, or not to the same extent, because their crimes happen to have been committed in the context of a humanitarian crisis which is deemed ‘less relevant’ to international law-enforcers or has been brought about by those holding sufficient political power to evade prosecution. This objection to the legitimacy of pursuing justice in individual cases is, however, difficult to accept. The inequality of enforcement flowing from its non-universality and derivative constraints, does not remove the righteousness of the claim to justice. If it is true that ‘injustice anywhere is a threat to justice everywhere’, then ‘justice anywhere is a chance for justice everywhere’ is the flipside of the same coin. The flowers of justice sprout in wicked places; suggesting that they should be uprooted because they have grown amid the weeds of injustice is an absurdity.

Last, what can be learnt from longstanding efforts to achieve individual criminal accountability for the Holocaust in the past seven decades may be this: justice is always inconvenient, liable to denunciation, and susceptible to interference. As any human enterprise, it is a fragile affair and regardless of how strong the institutions, it hinges on insistence, perseverance, and frantic efforts by individuals and (international) civil society — and often on pure chance. The ebbs of misalignment and tides of endorsement by its tactical supporters should not make the ICC lose its sense of mission and its proponents their moral compass. Like with the post-WWII quest for accountability, they ought to accept the melancholy fact that the business of justice is never finished and seek comfort in doing whatever is possible and necessary. Ultimately, the point is in the process itself, in its fairness that falls to them to ensure, and in precedents and discourses it generates — not in specific outcomes such as could be measured by a number of cases, types of verdicts, or by the length of sentences that are handed down.

Sergey Vasiliev is a postdoctoral researcher at the Department of Criminal Law and Criminology, Vrije Universiteit Amsterdam (VU) and a fellow at the VU Center for International Criminal Justice (Twitter: @CICJ_VU). He is an author and co-editor of several publications on international and comparative criminal law and procedure, including volumes International Criminal Procedure: Towards a Coherent Body of Law (Cameron May, 2009), International Criminal Procedure: Principles and Rules (OUP, 2013), and the forthcoming Pluralism in International Criminal Law (with Elies van Sliedregt). (Twitter: @sevslv).

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