by Charles Anthony Smith. New York: Cambridge University Press, 2012. 316pp. Hardback $99.00, ISBN 9781107023543. Paperback ISBN 9781107680715 (forthcoming).
Reviewed by Samuel S. Stanton, Jr. Associate Professor, Department of Political Science, Grove City College, ssstanton [at] gcc.edu
Since 9/11 scholars have begun reconsidering whether or not human rights violations and potential war crimes committed as acts of terror or by non-state actors related to terrorists fall within the scope of legal action within war crimes tribunals as developed over centuries of modern and contemporary civilization. Charles Anthony Smith seeks to contribute to the examination of war crimes tribunals in his ambitious attempt to trace the development of war crimes tribunals (WCT) from the trial of Charles I to legal actions taken by President George W. Bush following 9/11 and the subsequent invasions of Afghanistan and Iraq. Smith argues that the Bush administration’s use of military tribunals and detentions did indeed change war crimes tribunals. Smith argues that these changes represent a devolution of war crimes tribunals after a lengthy evolution of war crimes tribunals establishing them as legitimate means of bringing justice to violators of human rights. The problem is that Smith’s story does not show readers that justice was ever clearly the goal of WCT, instead showing through his own case studies that political considerations were far more important in the growth of WCT. Additionally, Smith’s assessment suffers from selective evidence.
The result is a work that takes a promising topic and relegates it to a diatribe against the U.S. Senate’s refusal to ratify the Rome Statute creating the International Criminal Court (ICC) and the poor choices regarding detention and prosecution of foreign nationals by the George W. Bush administration in the wake of 9/11. Promising to trace the history of war crimes trials, Smith argues for understanding that political circumstances forge the necessity of trial and that concern for due process, both procedural and substantive, is often subverted to the political expediency of finding a party guilty. While Smith fails to deliver much of a defense of his thesis, is not exhaustive nor extensive in his case studies, his discussion adds a good framework for studying the development of WCTs enhancing the ongoing post 9/11 study of human rights and war crimes.
Smith states his purpose as examining war crimes trials to determine if these trials are the product of a “high call to justice” or just “tools used in the normal dimensions of political processes” (p.6) He outlines his concepts of justice and political process in an easily understandable, functional manner. Justice is the presence of both substantive and procedural due process. Since due process is often subverted when justice is not forthcoming this working definition is fine for understanding whether or not justice is [*555] carried out in war crimes trials. Further, Smith bases this definition of justice on a fairly standard understanding of justice as found in western literature from the ancient (Aristotle and Aquinas) to the contemporary (Hart and Postema). Unfortunately this choice of literature does seem to universalize western conceptions and ignores the potential offerings regarding justice found in eastern literature such as the writings of Confucius or Asoka. Strength could be added to this section on justice also through consideration of the writings of religious traditions such as the Koran, Torah, and Bible, for if we argue that human rights are a universal norm, we should take care to show that in multiple culturally relevant sources a universal concern for and perhaps even a universal definition of human rights can be found. The need for understanding what international norms exist is particularly important in an age of rapid globalization and a post 9/11 emphasis on combating terrorist organizations that often refer to their religious and philosophical writings as support for their behaviors.
Political process is explained as political consolidation, meaning the consolidation of power within political institutions or political personages. Consolidation of political power is predicated on ruling elites being capable of maintaining control over the population by the suppression of others that might challenge the legitimacy of the ruling elite. Suppression may be achieved through force or coercion and suppression might be achieved only minimally if suppressing the opposing elites would create great antagonism with a large portion of the population governed by the state. Trials serving the consolidation of power may be just, but the purpose is not justice.
Problematically, Smith does not give real consideration to the mechanics of justifying which war crimes trials will be considered in his work. He breaks them down into categories without really explaining the categories or the placement of particular cases within the categories. Readers are left to decide for themselves whether the cases are categorized correctly and unless readers are well versed in centuries of historical events they are left to believe ‒ and incorrectly so ‒ that Smith was exhaustive rather than selective in his examination of cases. For example Smith claims that no real war crimes trials occurred during the Napoleonic Wars, or between the American War Between the States and World War II. Smith overlooks trials such as that of Harry Morant in 1902 during the Second Boer War. Smith also ignores post WWII trials prior to the 1990s, such as the U.S. prosecution of Lt. Calley in 1969-70 for his leadership role in the My Lai Massacre in March 1968. Leaving out the Calley trial is understandable if we are only considering internationally led trials, but most war crimes trials have not been international and most of the cases used by Smith to illustrate his argument are domestic in nature.
Readers are given a solid account of the trial of King Charles I of England. Smith does a fine job of putting the event into historical context. The case does indeed illustrate the argument that political consolidation trumps justice. The case also raises a continuing issue with many war crimes trials ‒ namely the issue of jurisdiction where no international law or domestic law exists [*556] allowing for the direct prosecution of individuals who have engaged in heinous actions aimed at the destruction of the fabric of human society.
The case of Captain Wirz further solidifies the understanding of justice being trumped by consolidation of political power. Considering that strong arguments are made that the American War Between the States is a fine example of a war of political consolidation in the 19th century as liberalism, nationalism, and economic modernization collided, we should not be surprised that efforts to consolidate power over Southern elites and the Southern population in general were motivating factors for trying Wirz. What is better illustrated and should be considered is that justice completely breaks down in the Wirz case, in which a junior officer is held responsible for the actions of senior officers and officials. Despite this fine example of what not to do, the same process is repeated later in the Tokyo Trials when the most senior officials and officers are not held accountable for clear heinous actions by the soldiers, sailors, and airman whom these officials enabled.
Smith turns his arguments after the examination of justice versus political consolidation pre WWII to the consideration of Nuremberg and the Tokyo trials as examples of institutionalizing war crimes trials. Smith never clearly explains what he means by “institutionalized” in the context of war crimes trials. If by institutionalized he means to argue that international agreements were entered into regarding war crimes and crimes against humanity, then legal basis for holding trials and legal basis for international jurisdiction for war crimes were established not by the trials but by those agreements such as the London Agreement (1945) and enhancements to the Geneva Protocols. These agreements institutionalized the meaning of war crimes and the future of jurisdiction issues for war crimes trials. However, these trials as examples did not institutionalize anything, relying on faulty logic for application of jurisdiction ex post facto and certainly being politically motivated rather than seeking justice.
Smith’s cases studying the domestication of war crimes trials are also proof that political and possibly socioeconomic realities are more important that seeking justice when it comes to addressing grievances related to human rights. In the case of prosecuting those responsible for Argentina’s “Dirty War” the fact was prosecution of too many members of the military and particularly high ranking officers would create a situation detrimental to the development of democratic processes in Argentina. In South Africa truth and reconciliation was more beneficial than adjudication and punishment because the economic reality favored white South Africans who may have been part of the apartheid problem but still were needed if South Africa was to have a growing economy.
What Smith apparently wants to deal with in his book becomes clear in chapters six and seven. In these chapters Smith castigates the lack of support for the Rome Statute and creation of the International Criminal Court (ICC) by the U.S. Senate and the George W. Bush administration. Additionally, he disagrees with Bush for his handling of the detainees from the conflicts in [*557] Afghanistan and Iraq, holding the detentions and lack of procedural due process as detrimental to the process of internationalizing and institutionalizing war crimes trials. Smith says that the U.S. decision not to ratify the ICC is insincere because the U.S. Senate would not ratify the creation of the ICC on the grounds that U.S. servicemen and U.S. government officials could be tried outside of U.S. jurisdiction rather than saying that ratifying this agreement would be detrimental to their re-elections. A counter point would be to understand that a decision is only insincere for elected officials if the decision does not match the will of the people. Apparently Smith wants to ignore the fact that most residents of the U.S. did not support the ICC and thus most U.S. Senators could not in honesty support the ICC if they are truly the representatives of the people. Smith fails to make a connection here to the earlier case of Argentina, where Smith shows that it is possible for a majority to be wrong in assessment of justness but still sincere in their political goal.
Smith criticizes the Bush decision to use military tribunals as opposed to war crimes tribunals in the wake of post 9/11 invasions of Afghanistan and Iraq, the problem with blaming George W. Bush for the fall of war crimes tribunals based on the aftermath of invading Afghanistan and Iraq is that terrorists can be viewed in their actions as culpable both under local jurisdiction and international jurisdiction. If you view terrorist behaviors as criminal behavior and no government exists to try the criminal, what do you do? Domestic criminal behavior does not rise to meet the definitions of war crimes in most cases. Whether we agree with the U.S. government decision of internments at Guantanamo Bay and military tribunals for trials or not, a far stretch has to be made to bring these cases into the realm of crimes against humanity and into the possible jurisdiction of war crimes. Since the ICC already existed, should not we expect that the ICC would offer indictments if war crimes were readily within the purview of an internationalized legal systems? But what the post 9/11 ICC has offered is indictments of Africans potentially engaged in crimes against humanity within the borders of their own countries.
Overall, Smith’s work offers an interesting glance into war crimes and the evolution of war crimes trials. The post 9/11 context does not seem to have altered the primacy of political considerations and may signal a return to domesticated forms of WCT, which Smith calls devolution because of the promise offered by international WCT and the ICC. Smith actually shows there was little evolution in the history of war crimes trials. The evidence shown by Smith suggests political consolidation is always more important to states and statesmen than justice. While we can see that some trials are conducted more justly than others from a vantage point of due process, what we do not see is a true instance where concern for justice for the wronged, justice for the whole of society, is the most important factor in determining to have a war crimes tribunal.
Copyright by the Author, Samuel S. Stanton, Jr.