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Launch of book on Vassiliy Kononov

Date de publication: 16.11.2011

Nazi soldiers execute Soviet resistants, September 1941

Vassiliy Kononov, who died in 2011, was a Soviet partisan who fought the German invaders of his native Latvia during the Second World War. Decorated as a war hero, he was accused of war crimes by Latvia in 1998 as part of that country's determination to criminalise the so-called "occupation" of the Baltic States by the USSR.

Kononov's case went through various legal ups and downs with the initial indictment being rejected by the Latvian courts in 2000.  A second prosecution was launched in 2000 and he was acquitted in 2001.  This acquittal was overturned by the Latvian Supreme Court in 2004 but in 2008 the European Court of Human Rights ruled that the Latvian authorities had violated Article 7 of the European Convention on Human Rights and struck down the conviction.  However, in 2010, the Grand Chamber overturned the ruling of the Chamber of First Instance and found in favour of Latvia and against Kononov.

The role of partisans in defeating the Nazis is difficult to overstate.  While much historiography has concentrated on the huge battles waged between the armies in the field at Moscow in 1941 and in Stalingrad in 1942, the fact is that more than 20 Nazi divisions were held down in the fight against the thousands of attacks by partisans which started immediately after the German invasion in June 1941.  Without these, the outcome of the war could have been the opposite.  The Germans' reaction to the huge amount of partisan resistance was muddle-headed, inadequate and above all exceptionally brutal: they regularly executed innocent civilian hostages in reprisal for partisan attacks.  One of their anti-partisan methods was to arm certain trusted civilians whose job it was to track down partisans and hand them over to the Germans for interrogation and immediate execution.

Kononov was prosecuted for an event connected with this German strategy.  In May 1944 his men executed 9 villagers who, the previous February, had invited a group of 12 other partisans into their barn where they offered them shelter.  While the women were keeping them busy, the men went off to betray the partisans to the Germans, who were shot on the spot.  Kononov's mission was to liquidate these collaborators, known as "azisargues" in Latvian.

John Laughland, the IDC's Director of Studies, has written in the book about how the Kononov affair is typical of the politicisation of justice which is now common in international tribunals and courts of law.  The text is reproduced below.

 

International tribunals as a tool of policy.

 

John Laughland

 

 

In the two decades since the creation of the International Criminal Tribunal for the former Yugoslavia in 1993 there has been a proliferation of international war crimes tribunals.  There has also been a growth in the international administration of human rights norms, through the European Court of Human Rights in Strasbourg and the Organisation of Security and Cooperation in Europe (although this latter organ has no judicial functions). 

 

The popularity of these tribunals and courts derives largely from the idea that, as international bodies, they will be more objective and universal than national courts.  It is the argument of this paper that this is not true; that international courts can be as political as national ones; and that the politicisation of justice is almost inevitable, and certainly very common, where high-profile defendants like former state leaders or military commanders are in the dock, or when the events under consideration have powerful historical connotations. 

 

It is also the argument of this paper that the current trend in war crimes prosecutions (“international humanitarian law”) represents a radical and regrettable departure from legal tradition.  The new kind of war crimes law is extremely prone to politicisation and it is, in fact, seriously deficient in that it has been formulated in such a way that does not actually take account of the nature of war itself.

 

The case of Vassili Kononov, the former Red Army partisan who was decorated as a war hero by the Soviet Union and then convicted as a war criminal by Latvia, is an excellent illustration of the dangers of this modern form of international humanitarian law.  Partisans pose a particular problem for the laws of war and they illustrate the profound truth of Clausewitz’s often quoted but perhaps not fully understood remark, “War is the continuation of politics by other means.” 

 

This phrase is often used to make a sarcastic remark about politics.  In fact, its fame is merited for important historical and anthropological reasons.   In the brilliant opening chapter of his definitive essay, Vom Kriege, Clausewitz explains the true nature of war: “nothing other than an extended duel”.  The German for duel, Zweikampf, means “struggle between two”: the emphasis is therefore not on the rather stylised form of confrontation between gentleman known as “duel” but on the fact that war is an intense combat between two opponents.  “War is therefore an act of violence whose purpose is to force one’s opponent to bend to one’s will,” Clausewitz goes on.  Because the one who uses the greater force is going to win, especially if he is also more reckless than his opponent, “he thereby lays down the law for the other (literally: ‘he gives the other the law’) and so both opponents rise to the extreme without there being any other limits other than the inherent counterbalances.”

 

Clausewitz characterises war as a series of reciprocal acts (Wechselwirkung) in which each side responds to the acts of the other, each pushing the other further to the extreme until one bends to the other’s will.  There are no inherent limits on this because the imperative is always to crush the enemy to prevent him from making any further ripostes.  “War is never an isolated act,” writes the Prussian officer.  “We must not think of war as something independent but instead as a political instrument.”  This is the true meaning of the famous quotation.

 

It so happens that Clausewitz’s insight came at precisely the time when (and no doubt because) this eminently political nature of war had undergone a radical transformation with the Napoleonic wars.  The Napoleonic wars represent the brutal eruption of modernity across the whole of Europe, the forcible application by military violence of the principles of the French revolution to France’s neighbours.  The Grande armée was the nation armed: it fought to spread the ideology of the rights of man and was therefore ideologically “democratic” in a way which no previous army had ever been.

 

This modern kind of warfare elicited a modern kind of response: the guerrilla.  The word comes from those independent irregular soldiers who, in the absence of any central organisation, managed to constitute themselves into some 200 small groups and whose acts of sabotage manage to expel the Grande armée from the Spanish peninsula (with a little help from the British who armed them). Their “little war” (guerrilla) was able to help thwart the greatest military machine the world had ever seen, partly for tactical reasons but partly also for ideological ones.  The guerrilla was even more a man of the people than the soldier in the Grande armée.  Where the Napoleonic soldier embodied the universal and abstract principles of liberty, equality and fraternity, the irregular fighter embodied the concrete local values of people, homestead and terrain.

 

Just as the Grande armée tried to impose a new, modern political order on the continent, so the partisan was driven by his own opposite political desire to repel the invader in the name of the particular values of village and country.  The partisan’s attachment to a specific territory is a large part of his strength: his wars are fought in the woods, mountains or jungles which he knows far better than the foreign soldier.  His heroism and bravery consists precisely in the fact that he operates alone or in small groups, as opposed to the soldier who is part of an enormous and therefore unwieldy army.  His morale derives from the fact that he really is a man of the people with whom he blends in and from whom he cannot be distinguished, his agility from the fact that he can simply melt away because he does not wear a uniform.  His popularity is the precise opposite of the “popular” nature of the modern democratic army, staffed at it is by conscripts, and which is supposed to represent the nation. 

 

Most importantly of all – and this is the great lesson of Carl Schmitt’s essay, Theorie des Partisanen (1963) – the partisan relishes the fact that, from the point of view of the occupying army, he is an outlaw.  Inspired as they are by the medieval tradition of chivalry and by the concept of a duel, the classical laws of war make a radical distinction between combatants and non-combatants.  This constitutes their very backbone.  The partisan, by contrast, deliberately cultivates the confusion between combatant and civilian, for it enables him to vanish very easily.  More profoundly, the partisan rejects the right of the occupier to law down the law: his struggle against the occupier is a struggle over who has the right to give the law.  He may be an outlaw for the occupier but the occupier is an outlaw for him, illegitimately wielding power over a territory which is not his.  The partisan therefore brings the political nature of war – that it is a struggle over the right to rule – to its clearest possible expression.  The battle between him and the occupier is between two mutually exclusive visions of sovereignty.

 

It so happens that the Prussian army, of which Clausewitz was an officer, understood the power of the partisan very well, having observed the Spanish experience.  One of the most interesting edicts in the history of the laws of war is the royal Landsturmedikt of April 1813, which called on all citizens to combat the invading enemy with all possible kinds of weapons.  Every Prussian was ordered by this edict to refuse to obey the orders of the invading army and instead to seek to damage and undermine him as much as possible:  even when the occupier was seeking to establish order, he was to be resisted, because social order would make his military operations easier.  The edict specifically said that “the excesses of vandalism” (i.e. anarchy) were preferable to a situation in which the enemy had full control of the territory.  Spain was three times specifically invoked as a model. 

 

This edict underlines the paradoxical truth which Clausewitz quickly understood (his book was written between 1816 and 1830 but published only after the author’s death, in 1832), namely that the aggressor desires peace while the defender desires war.  Peace is the acceptance of the status quo and, when a country is occupied, the status quo is precisely what the occupied country wants to overturn.  The defender, including the partisan, does not accept the rule imposed by the occupier; he wants replace it with his own rule instead.  It is to this extent that each side in a war seeks to lay down the law for the other. 

 

It is because of this intense relationship between war and the laying down of the law that the partisan is alternatively an outlaw or a hero, depending on your point of view about the right to rule.  One man’s freedom fighter is another man’s terrorist.  Vassili Kononov’s passage from Soviet war hero to Latvian war criminal, following the collapse of the USSR, is brilliantly emblematic of the fact that the fate of the partisan is inextricably linked to the political order for which he is fighting.

 

The Landsturmedikt was rescinded three months after it was issued because the Prussian authorities realised that they could not, in fact, legalise sedition and subversion.  The German partisan war therefore never took place.  But the genie had been let out of the bottle.  Henceforth the partisan would embody the highest ideals of modern, political, revolutionary warfare; he was to become the emblematic figure of world history.  It is precisely as a revolutionary and a patriot that the partisan is now best known, from the Viet Cong to Che Guevara (the author of a book on guerrilla warfare), from the French resistance to the role of the partisans of the Red Army who played such a key a role in repulsing Hitler’s armies.  Their key role was partly recognised after the war by the Geneva Conventions which enlarged the legal space accorded to irregular warfare, albeit subject to restrictions. 

 

However, the attempt to integrate into a legal structure a form of warfare which thrives on illegality is doomed to failure because, in war, it is precisely legality which is being fought over.  As the great counter-revolutionary British philosopher and politician, Edmund Burke, wrote (indirectly quoting Cicero’s Silent enim leges inter arma): “Laws are commanded to hold their tongues amongst arms; and tribunals fall to the ground with the peace they are no longer able to uphold.”  The classical laws of war, paradoxically, were able to grow up only because the criminal law was kept firmly out of them.  The distinction between combatants and non-combatants, which obliges the soldier to engage only other soldiers while sparing civilians, also provides quite explicitly that the enemy in combat is not a criminal.  He is instead an honourable equal who has rights which flow from his membership of an organised public body, an army. The classical laws of war, which are very ancient and which have been on the statute books of European states for many centuries, regulate the conduct of a state’s own soldiers in the field:  they do not principally seek to prosecute soldiers of the opposing army.

 

This classical model collapses in the face of wars which are fought between rival ideological systems. Whereas after a classical European war, a surrender could lead to a cordial meeting between the warring princes, since armies were typically commanded by people who came from one princely caste and who therefore shared basic values, the modern war is a more radical struggle.  The epitome of the classical ideal is magnificently depicted by Velazquez in his painting, The surrender at Breda, which shows the courtly encounter in 1625, after a three-year siege, between the, victorious Spanish general, the Genoese aristocrat Ambrosio Spinola, and the defeated Dutch prince, Justin of Nassau.  Of course the depiction of the event ten years after the event is stylised and idealised, and of course that siege, like any classical war, was between two competing claims over the right to rule.  But the difference between the two sides was based on opposite interpretations of the same dynastic principle, whereas the Second World War was based on radically opposing metaphysical and philosophical systems.  Whereas the states on whose behalf the two 17th century generals were fighting were themselves sovereign, equal and legitimate powers who did not regard each other as criminal, and whereas, for that very reason, they were not fighting in the name of “humanity”, in modern warfare the criminal law – and the ability to enforce it – becomes a war aim in itself. 

 

This is what was at issue in battles like that between Kononov’s unit and the villagers of Mazie Bati in 1944.  When the Germans invaded the Soviet Union in 1941, they laid down an ultimatum that all partisans must lay down their arms by a certain date or face execution “according to military law” (Aufruf / Uzsaukums published on 11 August 1941 in Tevija (“Fatherland”), the newspaper of the Nazi occupation authorities in Latvia).  The announcement is a clear attempt “to give the other the law” in the way Clausewitz says.  When the events of May 1944 took place, the Red Army partisans, were trying to do the same thing in reverse: they wanted to punish the villagers who had handed over their comrades to the Nazis.  No doubt they too had issued ultimatums forbidding collaboration.  Since those villagers were armed, the partisans considered them legitimate targets.  They probably also wanted to make an example of them to teach others a lesson.  Both sides were trying to impose control, including by means of the criminal law, on a specific territory, i.e. to establish a jurisdiction over that territory and therefore the right to prosecute and punish criminals. 

 

The right to prosecute and punish criminals is one of the main attributes of sovereign power, and yet it is the key fact which modern international tribunals forget.  Modern tribunals wield this power but without any of those checks, balances or other mechanisms to ensure accountability which normally limit the exercise of this power by a nation-state.  That power, moreover, is wielded by state courts only as part of the social contract, i.e. in return for protection by the state of law-abiding citizens.  International tribunals, by contrast, never pause to consider the political consequences of their decisions because they never have to face them.  They are not part of a state structure wielding power of a territory.  They are not subject to any of the democratic, legislative or cultural limitations which restrict (or should restrict) the abuse of power by national courts.  The social contract is broken by international tribunals because they are structurally disconnected from the peoples over whom they wield power.

 

These grave shortcomings are aggravated by the specifically supranational ethic of modern international war crimes tribunals.  The Nuremberg tribunal was specifically not supranational in its jurisdiction:  the Allies prosecuted the Germans because, following the unconditional surrender of the Nazis, Germany had no government of her own and the Allies assumed sovereign power instead.  The Nuremberg judges specifically ruled out judicial interventionism in the affairs of states which had their own functioning government.  By contrast, modern international (supranational) tribunals see themselves quite explicitly as wielding power over  states.  “Putting an end to impunity” is one of their key slogans – it figures, for instance, in the Rome statute of the International Criminal Tribunal – and this refers to their role in prosecuting and punishing heads of state or other persons like ministers who enjoy sovereign immunity.  What the authors of these slogans do not seem to understand is that the immunity which they decry is itself the legal precondition for any right to punish (i.e. to “end impunity”).  If one person imprisons another without enjoying the relevant legal immunity then he will himself face charges of hostage-taking or kidnap: it is only by ensuring the immunity of the person handing down the punishment that a jurisdiction is legally created.  Anything else is just vigilantism.  Although it is nearly universally misunderstood, this basic constitutional fact can be clearly seen in the statutes themselves of the ICTY, the ICTR, the ICC and the other international tribunals, which (inevitably) give immunity from prosecution to their judges and prosecutors.

 

The overtly supranational ethic of modern international tribunals means that they undertake regime trials.  I have discussed the dubious history of regime trials in my book, A History of Political Trials from Charles I to Saddam Hussein (Oxford: Peter Lang, 2008).  Having started out by prosecuting actual perpetrators (the first indictee at the ICTY was a low-level direct perpetrator, Dusko Tadic) the modern international tribunals quickly started to indict big fish instead.  No doubt they thought it was more glamorous, and they probably did it to promote their own careers: this change of prosecutorial policy was urged on the ICTY prosecutors by the president of the Yugoslav tribunal, Judge Antonio Cassese, even though by doing do he violated the core principle of judicial neutrality.  This preference for going after headline prosecutions of famous leaders while ignoring actual perpetrators has led to very serious abuses of due process, as documented in Germinal Civikov’s excellent book on the star witness for Srebrenica, Srebrenica: Der Kronzeuge (Vienna: ProMedia, 2009)

 

It is because international tribunals seek to wield power over states by indicting political leaders that their prosecutions are usually political in the strictest sense of the term. They are prosecutions of acts of state – of the way in which a war was waged and of the policy basis on which it was waged.  A key element of such prosecutions is the notion of a “plan”, which is ultimately just another word for “ a policy”.  The prosecution of Slobodan Milosevic, for instance, which was initially issued over Kosovo alone (on 24 May 1999, at the height of the NATO bombing of Yugoslavia) was modified over 2 years later, in September and November 2001, to include indictments on Croatia and Bosnia, wars which by then had come to an end 6 years previously.  These three indictments were then joined into one single indictment, and therefore one single trial, on the basis that they each formed part on one overarching plan by Milosevic to create a “Greater Serbia”.  This plan, or policy, was the lynchpin of the whole trial (even though the individual indictments had not even mentioned it!) and the prosecution of Milosevic was therefore eminently political.  It is not a crime anywhere in the ICTY’s Statute to pursue a Greater Serbia policy, and indeed the tribunal specifically refuses to prosecute the crime of aggression (even though this was the cornerstone of the prosecutions brought at Nuremberg).  So the prosecution of Milosevic turned on whether he, as a head of state, had pursued a specific policy.  

 

The intensely political nature of this allegation can be seen by contrasting it with the prosecutions brought against Croat, Bosnian Muslim or Kosovo Albanian leaders. Unlike the allegations made against Milosevic and other Serb politicians like Vojislav Seselj or Radovan Karadzic, those Croats and Bosnian Muslims who have faced prosecution at the ICTY have been accused on the basis of war crimes in the strict sense of the word (ius in bello) and not on the basis of their wars aims as such (ius ad bellum). This ideological imbalance in the prosecutions is far more revealing of the political nature of the ICTY than is the fact that more Serbs have been prosecuted there than others: the accusation of aggression contained in the accusation of Greater Serbia reveals the underlying assumption of the ICTY that the Serbs are responsible for the war as a whole, whereas members of other ethnic groups are responsible only for individual war crimes committed in response.  The prosecutions at the ICTY as therefore an instrument of policy to the extent that they seek to criminalise the Serb position as a whole, on the basis of a political interpretation of the nature of the war in Yugoslavia.

 

Perhaps even more striking is the prosecution policy at the Rwanda tribunal, where only one side in the conflict has been prosecuted:  the ICTR has never prosecuted anyone from the victorious Tutsi Rwandan Patriotic Front. After the mass killings in Rwanda which took place between April and June 1994, the standard narrative in the West was that Hutu extremists had committed genocide against their Tutsi compatriots.  Moreover, it was alleged, they had plotted the genocide for many years in advance, even assassinating their own president on 6 April 1994 in order to have a pretext to start the killing.  President Habyarimana was indeed killed when his plane was shot down, a crash which also killed the (Hutu) president of neighbouring Burundi, and the killing started immediately afterwards. 

 

Over a decade and a half after this narrative was initially advanced, the ICTR Prosecution has never succeeded in proving it.  In fact, it has now largely been abandoned.  On the contrary, evidence emerged that it was not the Hutus but instead the commanding general of the invading Ugandan-Tutsi forces, Paul Kagame (now president of Rwanda) who gave the order to shoot down the plane.  An Australian ICTR official, Michael Hourigan, whose enquiries started to lead him in this direction, was abruptly taken off the case, while a French judge has issued arrest warrants for members of Kagame’s entourage for precisely this crime.  (French law prohibits indictments against incumbent heads of state.)  Kagame needed to kill President Habyarimana because the Tutsi strategy was to take power by force:  Habyarimana had recently signed the Arusha accords (he was flying back from Arusha when the plane was attacked) and these accords would have put an end to four years of fighting by Tutsi insurgents by including the Tutsis in the government and then holding elections.  But the Tutsis, who are in a minority, were sure to lose those elections and therefore they had to sabotage the peace process instead.

 

The original narrative collapsed at the conclusion of the mammoth “Military I” trial of the alleged ringleaders of the genocide.  They were convicted of genocide, to be sure, but they were acquitted of conspiracy to commit genocide.  In other words, the Prosecution had failed to prove that the genocide plans had been hatched years earlier.  But if there was no preconceived plan, and if instead the “plan” to commit genocide emerged spontaneously as soon as the plane was shot down – just as the ICTY alleges that the “plan” to commit genocide at Srebrenica emerged a few hours before it was allegedly put into operation – then it is obvious that we are not dealing with a real “plan” at all.  We are instead dealing with an outbreak of collective hysteria in which people took the law into their own hands and killed people with the weapons at their disposal (machetes).  And if this is the case, then it is difficult to see how the prosecution of political and military leaders is justified, if in fact they did not plan anything.

 

We need to add to this the fact that allegations have now surfaced (in October 2010) that the victorious Tutsis then went on to commit atrocities against Hutus who had fled into neighbouring Congo after the Tutsi RPF seized power in Kigali.  A very detailed report by the United Nations gives ample evidence for such atrocities committed over a period of more than ten years (in which the Great Lakes region was plunged into a cataclysmic war costing the lives of many millions of people but to the general indifference of public opinion in the West).  In fact, information about Tutsi atrocities was made available to the United Nations in the autumn of 1994 but the UN decided to suppress it, no doubt partly in order to maintain the narrative which was essential for the functioning of the ICTR which was created in November of that year.

 

Even though it has now formally collapsed, and even though there are now occasional articles in the Western press about the dictatorial and murderous nature of the Kagame regime in Rwanda (Paul Kagame was re-elected in August 2010 with a comfortable 93% of the vote and after the arrest of the main opposition candidate - on charges of “genocide denial”!) the narrative has proved politically very powerful.  It has allowed the minority aristocratic Tutsis to reassert their control over a country which they governed until decolonisation brought democracy in 1961 and the majority Hutus took power.  It has allowed the Americans to increase their presence in East Africa and the Great Lakes region, by demonising the French backed regimes in Rwanda and Zaire (Congo).  It has given those US-friendly regimes, especially in Uganda and Rwanda, carte blance to invade Congo, which they did in 1996, and to plunge the region into a horrific war fuelled largely by the hunt for precious resources including the coltan which is used in mobile phones, play stations and aeronautics. 

 

Above all, perhaps, the narrative served the key purpose of providing rhetorical support for the concept of humanitarian intervention and therefore for the creation of international criminal tribunals which are run, essentially, by the powerful Western states who fund them.  The narrative of innocent Tutsis being massacred by Hutus – and the horror that those killings really did represent – have been exploited to justify the idea that the West has the right to intervene judicially and militarily in the internal affairs of other states. Few people understand that the “Rwanda genocide” (the horrific events of April – June 1994) was in fact but one episode in a war between Hutus and Tutsis in Rwanda and neighbouring Burundi which has been going on for decades.  Few understand that the hypermnesia of the events of those few months has almost completely obscured the memory of the far more murderous Congo wars which, unlike the seeming irrationality of a genocide, are classic wars of invasion and conquest perpetrated by Rwanda and Uganda (most of the invading Tutsi Rwandans, especially Kagame himself, had in fact been officers in the Ugandan army).  So the narrative and the ICTR prosecution strategy played the key political role of supporting this invasion while legitimising other American-backed Western interventions around the world supposedly in the name of human rights.  There are few clearer examples of the link between political prosecutions and war aims, or of the use of international tribunals as instruments of policy.

 

The point does not need to be laboured: wherever there is an international tribunal, there is a policy narrative which enables that tribunal to prosecute one side in a conflict for political reasons.  The Special Court for Sierra Leone’s prize defendant is the former president of Liberia, Charles Taylor.  His indictment in March 2003 for Liberia’s role in the war in Sierra Leone was the logical counterpart of the intervention by British troops in its former colony in 2000 to repel the forces allegedly supported by Taylor, and of the intervention by American troops in Liberia itself in 2003 to overthrow Taylor.  By the same token, the Special Tribunal for Lebanon has the obvious political purpose of blaming Hezbollah and Syria for the murder of the Prime Minister Rafik Hariri and, thereby, delegitimizing their role in the politics of that country.  (It has not worked:  Hezbollah assumed control of the Lebanese government in January 2011.)

 

Perhaps most arresting is the case of the International Criminal Court.  The Prosecutor was selected precisely for the prominent role he played in Argentine politics following the collapse of the military regime there in 1983: he was in the forefront of campaigns to continue prosecutions of the country’s military leaders even after the new democratic government, with huge popular support, had decided to draw a line under such prosecutions.  His strategy since the Court came into being in ten years ago – during which time the Court has not completed a single trial ! – has been unashamedly neo-colonial.  Although the court boasts that over 100 states have become State Parties, many of them are in fact microstates.  The State Parties in fact they represent less than 30 % of the world’s population.  By contrast, the finance for the Court comes overwhelmingly from the European State parties and their allies like Japan and Australia.  These countries de facto control the ICC while the defendants are exclusively black Africans.  The US and NATO wars in Afghanistan and Iraq seem to elicit not the slightest interest from the Prosecutor whatever.  Among the more politically overt decisions taken by the ICC Prosecutor, one could mention the decision to prosecute post-election violence in Kenya, hardly a war crime, and to indict one of Washington’s major bêtes noires, Omar al-Bashir, the president of Sudan.  Although the USA is not a State Party to the Rome treaty, the campaign against Bashir and Sudan has come principally from neo-conservative and fundamentalist Protestant lobbies in America, while the only governmental or non-governmental body in the world, apart from the ICC Prosecutor, which formally alleges genocide in Darfur, is the Congress of the United States.

 

For many people, it is exactly this political aspect which that makes international tribunals so desirable.  International tribunals appeal (abusively) to people’s basic sense of justice – that the powerful men of this world should be held accountable for their acts.  (The abuse lies in the fact that such accountability can be enforced only by someone more powerful still.)  People want international tribunals to prosecute policy-makers because they very often believe that policies are criminal and there is no sweeter revenge than seeing a powerful man end up in the dock.

 

Unfortunately, however, it is precisely the attempt to subject politics to the criminal law which ends up politicising that law.  This can be seen in the theories of liability which international tribunals employ for their prosecutions. In order to allege criminal liability for political leaders, or for military leaders who are not direct perpetrators, international tribunals have used two theories of liability: command responsibility and joint criminal enterprise.  According to command responsibility, political and military leaders can be convicted for criminal negligence if it can be shown that they culpably failed to take action to prevent the commission of crimes by their subordinates.  According to joint criminal enterprise, they can be convicted for acts which they neither ordered, intended or even knew about if it can be shown that they were a foreseeable consequence of the criminal plan on which they had knowingly embarked.

 

There are many problems with these theories, not the least of which is that they come very close to abandoning the principle of the presumption of innocence. How can a defendant plead against the charge that he “should have known” that certain acts were going to be committed?  Command responsibility allows defendants to be convicted for who they are, not necessarily for what they did, because convictions turn on the claim that “he must have known” or “should have known”.  JCE, meanwhile, can perhaps be applied to very limited cases of group violence but it is totally unrealistic to extend the concept of criminal conspiracy (as, for instance, in the Karadzic indictment) to include thousands and perhaps tens of thousands of individuals.  A “conspiracy” or “enterprise” involving so many people has nothing in common with a plan to rob a bank, yet it is on this model that the theory of liability is based.

 

However, there is a deeper sense in which theory of joint criminal enterprise is problematic.  Joint criminal enterprise is based on a comparison between acts of state and private crimes: both the armed bank robber and the man driving the getaway car are equally responsible, as co-perpetrators, if the man with the gun kills someone.  Yet acts of war cannot be compared to private crimes precisely because they are public acts: they are carried out by those public organisations called states, and by officially constituted structures called armies, in the name of collective goals known as war aims.  The responsibility of a political leader for the acts of his armies is intelligible only with reference to this eminently public quality of his power.  His acts are precisely directed at public goals, victory for his state, and not at private personal gain.  Above all, perhaps – and here Clausewitz’s insights about Wechselwirkung are key – his acts, like all acts in war, are dictated by those of his opponent.  The notion of an overarching criminal “plan”, spanning a decade (as is alleged of the Serb leaders) is nonsense because each day’s acts in a war depend on what the enemy did the day before.  Plans change from one day to the next.  This strange intimacy between opponents in war has absolutely no correlation whatever in the criminal law.

 

Concretely, war crimes are very often committed in retaliation for other war crimes.  There is such a thing as the cycle of violence.  When you read the indictments of alleged war criminals, you have the same strange sensation you would get if you read an account of one man beating another unconscious which failed to mention that what was being described was a boxing match.  To be sure, the acts of the other side may not necessarily excuse the reprisals carried out in revenge, but there can surely be no doubt that they might explain them.  Above all, those acts are not intelligible in terms of law drawn from ordinary criminal law because the acts are not directed at private goals.  Of course states seek to deny legitimacy to terrorists by describing them as mere criminals, but does anyone really believe this?  However horrible the methods they employ, we surely know that they are in fact carried out in the name of political goals, whether justified or misguided.

 

This crucially political nature of acts of war – the very thing which makes the comparison with private crimes impossible - is admirably demonstrated by the Kononov prosecution itself.  Although the Grand Chamber chose to ignore the fact,  the Latvian and Lithuanian governments, in their appeals against the original finding in favour of Kononov by the Chamber of first instance in 2008, specifically referred to Kononov’s quality as a representative of the Soviet “occupation” forces in Latvia and based their appeals on it.  (See the submission of the government of Lithuania dated 4 May 2009 and that of the Latvian government dated 16 April 2009.)  They did not prosecute Kononov as a mass murderer but instead, quite explicitly, as a representative of an allegedly illegal occupation force, the Soviet army.  The Latvian government wrote to the Grand Chamber: 

 

From the very outset, the Government would like to reiterate its position expressed at the earlier stages of the proceedings that the present case should be looked at in the light of the broader historical and political events that took place before and after the Second World War.”  (Italics added.)

 

It goes on to list the well-known Baltic arguments about the Molotov-Ribbentrop pact and the “illegal occupation” of them by the USSR in 1940 and 1944.  In other words, the goal of prosecuting Kononov, in the explicit and emphatic words of the Latvian government itself, is to prosecute him as a representative of the Soviet occupation and to criminalise it by criminalising him.  Paragraph 37 reads:

 

“The applicant (Kononov) who implemented or continued a practice which flagrantly disregarded the very principles of legality (i.e. the Soviet “occupation” and “invasion” of the Baltic States, and the implementation of “totalitarian” rule, referred to in the previous paragraphs) cannot plead the protection of Article 7.1 of the Convention.”  (Italics added)

 

Kononov, then, according to the official and exhaustive final statement of the Latvian government, cannot plead that he is a victim of retroactive legislation because his whole war effort as a partisan in the Red Army was directed towards an illegal goal, the occupation of Latvia, a violation of a key peremptory rule of customary international law.  He was not being prosecuted as a private criminal who perpetrated an isolated atrocity, but instead, and explicitly, as the executor of a public policy, that of the USSR. 

 

The laws of war need radical revision.  For too long, a new branch of international humanitarian law has been grafted onto the trunk of the classical laws of war, which never had a supranational vocation and which in any case were based on reducing, not increasing, the ambit of the criminal law.  The result of this attempt to force two different things to grow together is a monstrous hybrid.  The laws of war need to be fundamentally changed, in particular to remove from them the pernicious influence of liberal human rights activists who have never held a gun in their lives (although they often support the wielding of guns, or bombs, by others).  Their supranational agenda means that they are intellectually incapable of (and in any case not interested in) grasping the true nature of warfare.  The result is pitiful distortion which will lead, very quickly, to the overall discrediting of the very notion of the laws of war itself.

 

The fact that the European Court of Human Rights has collaborated in such a brazenly political prosecution as the Kononov affair – whose political goals were overtly stated before the Grand Chamber in the final appeal - is simply shameful.  It shows how deeply the gangrene of political “justice” has already infected the practices of Europe’s highest judicial bodies.

 



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19.12.2017

Conference on the "populist wave" in Central Europe (IDC, 19 December 2017)
08.11.2017

The Russian revolution and the civil war (IDC, 8 November 2017)
21.09.2017

Conference at IDC on the Korean crisis (21 September 2017)
12.07.2017

"Trump and Macron on Syria: what is new?" Conference at IDC, 12 July 2017
21.06.2017

Conference on the end of globaliation, 21 June 2017
24.05.2017

Conference in the Vatican on Catholics and Orthodox (24 May 2017)

Videos


John Laughland discusses the Catalan referendum on RT (4 October 2017)



John Laughland discusses NATO expansion on TRT World TV (31 July 2017)