Monday, Apr. 29 2013, Globe and Mail

Rape is a weapon of war. In the past, women were carried away as booty, along with the loser’s gold and silver reserves. Occasionally, they became the subject of great theatre, as in Euripides’s still-raw drama of grief, The Trojan Women. Over the centuries, the wartime abuse of women has been considered inevitable, and thus secondary, to the story of conflict and conflict resolution.

Since the Bosnian wars of the 1990s, sexual violence has become so widespread and brutal that world leaders have finally begun to notice. Impunity has escalated this savagery. Tens of thousands of Bosnian Muslim women were raped in a campaign of terror, but, since 1995, there have been only 40 prosecutions and 30 convictions. The United Nations estimates that, in recent years, at least 200,000 women and girls have been raped in the Democratic Republic of the Congo. (The details shock: In one Congolese village, 11 infants between six months and a year old were raped by soldiers.)

The G8 nations are at last trying to right these wrongs. At a meeting in London this month, the G8’s foreign ministers agreed to highlight rape. British Foreign Secretary William Hague likened ending sexual assaults on women during conflict to the 19th-century offensive against the slave trade. “The moment has come to shatter the myths about sexual violence,” he said. “We know that this violence inflicts unimaginable suffering, destroys families and communities, and fuels conflict.”

The G8 declaration says sexual assaults during wartime are breaches of the Geneva Conventions, as well as war crimes, thereby incurring the responsibility of all nations to facilitate the prosecution of perpetrators. It obliges its member states to develop a comprehensive protocol for investigations, and says amnesties for sexual violence must be excluded from all peace agreements. It promises to review the training provided to national armies, police forces and peacekeepers to ensure that those deployed to war zones can respond adequately, and supports the employment of international experts to help build judicial capacities in countries that request help. The declaration also calls for enhanced support for the victims of rape and the inclusion of women in peace negotiations.

Not all of this is new. In 1998, the Rome Statute of the International Criminal Court codified rape during wartime as a war crime and a crime against humanity. Its drafters worked from the legal precedents that were being established by the UN courts for the former Yugoslavia and Rwanda, including defining rape as genocide when specifically employed to destroy a national ethnic, racial or religious group through pregnancies, as happened in Bosnia.

Mr. Hague’s initiative translates law into progressive international policy one hopes will succeed, but this won’t happen easily in a world where the objectification of women still permeates so many societies. Yes, we’re shocked when a teenager commits suicide after putative rapists post a video of the assault on the Internet. Yes, we’re shocked when an Indian woman is gang-raped on a bus. But when a New Hampshire state representative refers to women as “vaginas,” that story is barely reported in the mainstream press.

Given the scope of the crisis, the G8 foreign ministers will have hard work ahead. Mr. Hague was right to compare his campaign to eliminate rape in conflict zones to the abolition of slavery. The eventual success in ending slavery was founded on new ways of thinking. The G8 commitments will require nothing less.

Friday, January 25, 2013, Globe and Mail

Last week, in a desperate effort to derail Syria’s murderous civil war, the Swiss government and 55 countries from every region of the world collectively called on the United Nations Security Council to refer the crisis to the International Criminal Court. After almost two years of escalating atrocities, and the repeated failure of the international community to stop the violence, the signatories to the Swiss letter hoped that a few key criminal indictments might kick-start change.

Their chances of success may be minimal – Russia has already denounced the initiative as “counterproductive,” even as it delivers weapons to Syria, and China and the United States have so far remained silent – but it’s worth a try. With the death toll at 60,000 and the violence worsening, there is nothing to lose.

A referral is worth a try for several reasons. Allowing the gory killing of civilians to continue unabated undermines the principle of criminal accountability under international law. That’s a given. But there is more. Few talk about the psychological damage inflicted when we watch atrocities happen, helpless. The killings become normalized over time, setting a dangerous political and moral precedent.

A related harm is the slow marginalization of the ICC, which was created a decade ago to bring the perpetrators of the world’s worst crimes to justice. The court is jeopardized when it stands by impotently in the face of crimes that fall within its jurisdiction, lacking recourse without a Security Council referral. Syria has neither signed nor ratified the ICC governing treaty, leaving the prosecutor’s hands tied.

A single saving option lies behind the Swiss letter: Where the perpetrators are citizens of a state that is not party to the Rome Statute, the Security Council may refer the situation to the ICC. This has already happened twice, with mixed success. In 2005, the Security Council referred the case of Darfur, resulting in an indictment of Sudanese President Omar al-Bashir for genocide. (Mr. al-Bashir remains in power, although several of his colleagues are in the ICC trial pipeline.) And in 2011, the Security Council referred the case of Libya, resulting in the indictment of Moammar Gadhafi, who was never tried but was gone within a year.

It is of interest that Chile and Libya, both countries that have experienced internal violence, are among the signatories to the Swiss petition. It is of equal interest that Canada, which effectively led the international community in the creation of the ICC, refused to sign.

Council members debating the Swiss petition might consider the long-term effects of the violence we have witnessed in Syria for almost two years: the damaging normalization of atrocities and the fact that without an international move against such crimes, ruthless leaders are less likely to be deterred. They might consider that peacemaking and justice are interdependent, and that faced with the present deadlock, marginalizing perpetrators through indictments may encourage negotiations. They might also think about the future of the ICC itself: Two-thirds of UN member states have signed the Rome Statute, meaning that international support for the court is high. That backing could weaken if the tribunal is seen to be failing in its mandate.

Until the Rome Statute is universally recognized, a Security Council referral is the only way to effect justice when major crimes are committed in a country that does not hold membership in the ICC.

There is much at stake. The Security Council must act wisely.

Monday, Nov. 19 2012, Globe and Mail

The tea-leaf readers were jittery during my recent visit to Beijing in the days leading up to the 18th Congress of the Communist Party of China. Speculation about political reform peppered conversations, especially after a high-ranking official publicly acknowledged the need for change.

To the certain disappointment of many, the conservative-leaning lineup of top leaders announced Thursday is unlikely to meet these expectations. In fact, the status quo of surveillance, force, and repression may actually get worse, at least in the short term, as the Internet-savvy generation born in the 1990s begins to test boundaries.

Ironically, it is the spectacular change in Chinese society that may bring this about. China’s economic miracle has lifted millions into new wealth, and the nouveaux riches entrepreneurs, style-conscious consumers and public servants are increasingly educated. China’s universities are bursting at the seams. They are graduating millions of young people who are learning to think more critically than their parents.

A number of young people I encountered during my two-week visit expressed cynicism about the system that controlled them, including the endemic corruption that permeates its cadres and the growing gap between rich and poor. They were also opportunistic. Some had joined the CPC, membership being a quasi-necessity for anyone who hopes to be employed by a state company, where the most secure jobs still lie.

They did not experience the Cultural Revolution – but many of their parents and grandparents were victims of that bizarre period during which millions died, and about which no one may speak. They had no direct knowledge of what happened at Tiananmen Square in 1989, but their parents did, and that recent history was also off limits. These young people had their own views about what happens when people are unable to decry abuses such as arbitrary evictions and the detention and torture of dissidents. One, whom I’ll call Hue, thought that an individual who had notoriously murdered kindergarten children in 2010 did so because “he needed to talk to his government about having been evicted from his home and had no way of doing so.” So he lashed out at the most precious thing of all – children – in a society that allows couples only one child.

They were all single children, as were their parents, and that, too, was a source of stress. They had neither siblings, aunts nor uncles, and because Confucian thinking about filial obligation remains a powerful value, they worried about how they would take care of aging parents in a society with inadequate social welfare structures, including public health care and help for the disabled.

The most serious test of China’s totalitarian rule will come from the Internet – that portal to the world that will increasingly shape the thinking of the young. There are approximately 538 million Internet users in the country, and more than half of them are under 25. Access is censored, of course; websites are blocked and thousands of ciphers are employed to delete the content of what remains available.

Since Facebook and Twitter are inaccessible, the party has authorized a pan-China network of social media called Weibo that can be monitored. The so-called Great Firewall doesn’t always work; in July, 2011, for example, the authorities tried to cover up the derailment of a train crash by ordering the carriages to be buried, but within days there were more than 10,000,000 pictures of the “burials” on Weibo. Nonetheless, the government seems to have decided to allow these small infractions. The young people I met thought they were deliberately providing an escape valve for pent-up tensions.

A telling indication of the mounting irrelevance of party ideology in the lives of ordinary people came from a sanctioned newspaper report about a 12-year-old from Guangzhou who had been chosen “Young Pioneer” of the year (an organization designed to indoctrinate children). Asked to respond, she said thoughtfully that she “did not know much about what it meant to be a Young Pioneer.”

The country has moved forward. The CPC has not. As the educated young push harder, it is likely that the party will either tighten its already frightening security apparatus, or be forced to accommodate social change with reform.

Click to Enlarge

Erna lectured in the Forum on Ethics program on the history of international humanitarian law culminating in the birth of the International Criminal Court.

September 24, 2012

Erna attended the Paris Committee meeting of Human Rights Watch, France, where she spoke about the strong work being done by the Toronto HRW Committee and office with regard to both international and Canadian rights issues.

May 23, 2012, Ottawa
Acclaimed Canadian author Erna Paris is the 2012 recipient of the WFM – Canada World Peace Award.
The award, to be presented July 12 in Winnipeg, recognizes an outstanding Canadian whose work advances awareness and action in support of a more peaceful future for humanity. (Version française)

Paris is the author of seven books and the winner of ten national and international prizes. Her writing, including frequent contributions to the opinion pages of major Canadian newspapers, chronicles humanity’s intermittent but genuine progress in establishing the social, political and legal foundations of the ongoing battle against impunity, and for the rule of law. Her most recent book, The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice explores the little-known history of global justice and the advent of the world’s first permanent International Criminal Court. The book has recently been published in Iran.

The World Federalist Movement – Canada is a longstanding Canadian NGO dedicated to reforming global institutions and strengthening the rule of law in world affairs. The WFM – Canada National President is Hon. Warren Allmand.

The World Peace Award has been presented annually or every second year since 1972. There have been 31 previous recipients, including most recently, Lloyd Axworthy, Louise Arbour, Philippe Kirsch, Roméo Dallaire, Ernie Regehr, Gerry Barr and Flora MacDonald.

Read Erna’s remark on receiving the Award on page 17 of the December issue of Mondial, the World Federalist Movement-Canada newsletter

For More Information:
Fergus Watt – (613) 232-0647 or wfcnat@web.ca

Erna Paris reçoit le Prix WFM de la paix mondiale – Canada

23 Mai 2012, Ottawa
L’illustre auteure canadienne Erna Paris est la récipiendaire, pour 2012, du Prix WFM de la paix mondiale – Canada.
La récompense, qui sera remise le 12 juillet à Winnipeg, rend hommage à une Canadienne dont l’œuvre contribue à la sensibilisation et à l’appui à un avenir plus pacifique pour l’humanité.

Madame Paris est l’auteure de sept livres et la récipiendaire de dix prix nationaux et internationaux. Son œuvre, dont ses fréquentes contributions aux pages d’opinion des grands journaux canadiens, raconte les progrès intermittents mais authentiques de l’humanité dans l’établissement des fondements politiques et légaux de la bataille contre l’impunité et en faveur de l’état de droit. Son plus récent livre, The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice, examine l’histoire, mal connue, de la justice mondiale et de la création de la Cour pénale internationale, première cour pénale internationale permanente au monde. Son livre a récemment été publié en Iran.

Le World Federalist Movement – Canada est un ONG canadien voué de longue date à la réforme des institutions mondiales et au renforcement de l’état de droit dans les affaires mondiales. Son président national est l’honorable Warren Allmand.

Le World Peace Award est présenté annuellement, ou à tous les deux ans, depuis 1972. Ses 31 récipiendaires comprennent, parmi les plus récents, Lloyd Axworthy, Louise Arbour, Philippe Kirsch, Roméo Dallaire, Ernie Regehr, Gerry Barr et Flora MacDonald.

Pour en savoir davantage, s’adresser à :
Fergus Watt – 613-232-0647 ou wfcnat@web.ca.

June 7, 2012
The New Solitudes, Erna’s Walrus magazine article on a changed Canada, won a silver medal at the Canadian National Magazine Awards.

Saturday June 2, 2012, Globe and Mail

Fifty years in prison. To receive his sentence, former Liberian president Charles Taylor was ordered to stand before the judges of the special court that had been convened to try him. Only a small involuntary movement of his lower lip marked the moment he understood the news.

A mass murderer on his feet before the law. Such stark symbolism. The man who issued countless orders to kill, rape and mutilate human beings of all ages as he cleared a bloody trail to the diamond patch, the man who believed himself untouchable and boasted of his invincibility, had collided with the latest piece of the global system – a court of international criminal justice – and lost. His conviction and severe sentence strengthened the emerging consensus across the world that high-placed perpetrators of crimes against humanity will no longer automatically be appeased with amnesties and plane rides to safe refuge. The once undreamed-of possibility that the victims of these appalling crimes might one day know justice also was strengthened at the very moment Mr. Taylor’s lower lip quivered.

We are witnessing change, but the underlying elements are not new. In fact, a fundamental conflict has been taking place in the global sphere that you are unlikely to read about in your daily newspaper. It is a meta quarrel over the meaning of justice and rights that has been with humanity since the beginnings of recorded history.

Beyond the boundaries of complex historical events, it is possible to pick out the strands of this lasting quarrel. On one side sits the ancient conviction that might makes right; the belief that the power available to a state is the only moral determinant when a government decides to pursue its interests. This view, first expressed as a philosophical doctrine in ancient Greece, was confirmed centuries later with the signing of the famous Peace of Westphalia of 1648, which concluded that international relations would henceforth be conducted between independent sovereign states. What leaders did was no one else’s business, except in rare circumstances where the interests of others were threatened.

This philosophy is also rooted in world literature (think Machiavelli) and naturally in history itself (the most recent eruption being George W. Bush’s Iraq war in 2003, even though the president reached for justifications). Perhaps it is history as taught in schools around the globe.

But there has always been an opposing partner in this ancient jousting match, though far less visible: the equally strong conviction that human society must be governed by universally binding norms. Here, too, the continuum of philosophy and literature goes back to the ancient Greeks and was bolstered centuries later. In the 18th century, German philosopher Immanuel Kant published his influential theory of cosmopolitanism, better known today as multilateralism. Kant believed that universal measures are the indispensable backbone of peace. If there is a United Nations today, as hampered as the Security Council is by interest-based vetoes, it is because Kant and other moderns seized upon the work of earlier thinkers and propelled the idea of universal standards into greater acceptance. The trajectory has not been steady, heaven knows, but there has been progress, in fits and starts.

Nothing is more “Kantian” than the new international criminal courts whose mandate is to confront the impunity that perpetrators of atrocities have historically enjoyed. Mr. Taylor, standing before his judges drawn from around the world, was tried and convicted according to fair standards of due process. Just two decades ago, no one would have believed this possible.

The international tribunals operating in the world today have plenty of problems. They lack a police force with which to effect arrests; they are short of funding; too many perpetrators of mass atrocities are still at large; they are judicial institutions operating within the seething maelstrom of international politics. And yet, they are increasingly successful.

Does this suggest a shift in the old quarrel between might makes right and a more humanitarian vision of justice? Possibly, although if history is a guide, this could be merely temporary.

What we can say with certitude is that 20th-century mass murderers such as Joseph Stalin, Mao Zedong and Pol Pot died comfortably in their beds of natural causes; and that in the 21st century, mass murderer Osama bin Laden was assassinated extra-judicially.

Mr. Taylor, by contrast, will die in prison after a trial that created a factual record of his deeds and sent out a message of change. His fate, not that of the others, moves the world an incremental step away from Machiavelli and toward a Kantian vision of justice.

The Mauthausen Trial: American Military Justice in Germany,
By Tomaz Jardim, Harvard University Press
Reviewed By Erna Paris
Literary Review of Canada, May 2012

“Shortly after 9:00 a.m. on May 27, 1947, the first of forty-nine men condemned to death for war crimes at Mauthausen concentration camp mounted the gallows in the courtyard of Landsberg Prison near Munich.”

So begins Tomaz Jardim’s fine book on the workings of U.S. military justice in a single Nazi concentration camp in the immediate aftermath of the Second World War. Jardim, an associate professor of history at Ryerson University in Toronto, has relied on newly declassified primary sources—trial transcripts, interviews with some of the surviving participants, investigators’ reports and at least one memoir—to tell a previously unknown story. He has intricately structured his book on two levels: the first, a powerful account of a problematic war crimes trial hastily put in place by the U.S. military; the second, a cautionary tale concerning the nature of justice itself.

Mauthausen, located just 20 kilometres from Hitler’s boyhood home in Linz, was the largest, most murderous Nazi penal institution in Austria. Following the Anschluss in March 1938, SS leader Heinrich Himmler chose the site as a practical (and profitable) location for a camp where the stone needed by Hitler to develop his grandiose architectural plans might be quarried by slave labour. The camp was also designated as an execution locale for enemies of the Reich.

For the next seven years, Soviet prisoners of war and political prisoners from Germany, Spain, Poland, Czechoslovakia, Belgium, Luxembourg, the Netherlands and France arrived at the site. Massive overcrowding spread disease, exacerbated by starvation and twelve-hour days in the quarries. The solution to a weakened work force was extermination. In May 1940, the first of three crematoria was installed in the camp. The following year, half of the 15,900 inmates died.

Most of the killings took place in a two-storey building that housed the execution chamber, the gallows and the crematoria. Always interested in manipulating compliance through the use of euphemism, the camp SS leaders murdered some of their victims in front of a “photo gallery,” where prisoners posed in front of a mock camera that fired bullets. In the “hanging room” next door, a collapsible stool could facilitate 30 executions an hour. In 1942, when these methods proved insufficient, a gas van and a gas chamber were added to the lethal mix.

Starting in 1944, tens of thousands of Jewish prisoners were transferred from Auschwitz to work in armaments production. The Jews were subjected to the worst conditions; the life expectancy of a new arrival was no more than a few weeks. Death rates peaked as the war drew to an end, and by the time 22 soldiers from the U.S. Eleventh Armored Division arrived in Mauthausen on May 6, 1945, at least 100,000 of the 197,464 people who had passed through the camp had died within its precincts.

The first liberation of a Nazi camp in Germany had taken place just weeks earlier, so the Americans who entered Mauthausen had little psychological preparation for what they were about to encounter. “Ghost-like” prisoners greeted them. Heaps of dead and dying people lay sprawled about the grounds. Most of the SS guards had escaped.

Surprisingly, given their condition, the survivors had already set up an improvised system of governance that helped bring order and security to a desperate situation; for example, they had forbidden revenge attacks on the inmate kapos who had assisted the SS in return for special privileges.

In a unique collaboration that would continue throughout the period of the investigation and the trial, the Americans and the camp survivors began the difficult task of organizing food and sanitary facilities, taking care of the sick and burying the dead. Former inmates worked as translators, clerks, personal assistants and interrogators. They wrote histories of the camp, identified perpetrators for arrest and helped choose defendants for the prosecution. Critically important evidence was uncovered in the SS “death books,” which had been hidden during the last chaotic days by a courageous inmate whose job it was to keep the records updated. The death books pointed directly to mass murder; for example, on March 19, 1945, 275 Jewish prisoners were listed to have died of “heart failure” between 1:15 a.m. and 4:30 p.m. Furthermore, they died one after the other in alphabetical order: from Ackerman to Zyskind.

The post-war Nuremberg trials, in which 22 of the top Nazis were judged by the victorious Allies, have been widely studied, and for good reason. Nuremberg created a new category of law called “crimes against humanity” in a bold attempt to codify language for crimes of unprecedented magnitude. But the trials almost did not happen. In 1942, when rumoured reports of Nazi atrocities first filtered into the West, the initial desire of both the British and the Americans was crass retribution—the summary execution of the leading Nazis—while the French and the Soviets preferred trials. (Stalin almost certainly hoped to continue his political show trials.)

Eventually, the four Great Powers agreed that revenge killings might not look well in the history books. Robert H. Jackson, the future chief prosecutor for the tribunal, put the legal claim best when he insisted that the Allies ought not to follow the example of Hitler in denying fair trials to their enemies. He prevailed and the Nazis in the dock were well protected.

From the day it opened its doors on November 20, 1945, the Nuremberg Tribunal was well attended by the world media, which should not surprise us given the notoriety of the defendants. By contrast, the Mauthausen trial, which opened on March 29, 1946, was largely ignored. The criminals being prosecuted by the U.S. military were unknown men whose deeds and fates were of less interest to the international community. Furthermore, unlike Nuremberg, the military prosecutors were in a hurry; William Denson, the chief prosecutor of the Mauthausen trial, was given only twelve weeks to build a case against 61 putative perpetrators. The group trial lasted only 36 days, and the judges spent an average of only four hours deciding upon the life or death of each individual. There was no appeal, although the army (not an outside body) did review sentences.

Under pressure to expedite proceedings, Denson came up with a template, starting with his first war crimes trial, which opened at Dachau in November 1945. This so-called “parent trial” became a blueprint for the Mauthausen trial that followed in its wake.

Jardim expresses concern about the inadequate procedures that characterized both trials. To start with, the only legal precedents and written law available to the military prosecutors were the 19th- and early 20th-century laws of war—in particular, the Geneva and Hague Conventions. (The new international humanitarian law being created at the Nuremberg Tribunal was not yet accessible.) While the laws of war did provide grounds with which to try war criminals, including explicit directives regarding the treatment of prisoners, they offered little direction with regard to due process.

Because military commission rules were historically slack compared to U.S. domestic law (and exceptionally lax compared to the procedures that governed the Nuremberg Tribunal), Denson was able to achieve a 100 percent rate of conviction in his first case at Dachau. As in the later Mauthausen trial, pragmatism and efficiency took precedence over fairness. There was certain evidence of criminality, but a large proportion was circumstantial and hearsay evidence was ruled to be admissible, especially when testified to by former camp inmates. Few among the trial personnel, including the judges, had previous courtroom experience of any significance, and their ignorance occasionally showed in the questions they asked. Worse still, interrogation strategies were left to the discretion of the interrogator, which led to post-trial complaints from defence counsel. Eventually, three U.S. investigative commissions were created; one of these concluded that hooded prisoners had been brought before fake judges in order to obtain confessions and that certain interrogators had threatened to harm the families of the accused. (This did not stop one former interrogator from bragging about his methods many decades later.)

The most egregious of Denson’s strategies was his invocation of guilt by association. Anyone who had worked in the Mauthausen camp, he asserted, had participated in a “common design” to commit war crimes, on the grounds that everyone there knew what was happening. This prosecutorial claim made the role of the defence counsel difficult, to say the least. It also tended to flatten the particularity of the charges against individual defendants.

Denson’s success rate at the end of the Mauthausen trial matched that of his earlier Dachau trial. Each and every defendant was found guilty as charged. Only twelve among the 61 escaped the death sentence.

The mass hangings of Mauthausen perpetrators at Landsberg prison in May 1947 were the largest in American history, but the zealous pursuit of Nazi war criminals did not last. The Cold War was emerging and the new state of West Germany was a needed ally against the Soviet Union. As American priorities shifted, politics corroded the military trials. Convicted criminals were released, including Mauthausen perpetrators who had evaded the first swing of the hangman’s noose. They were hailed as returning heroes by their communities. Scandals eroded the public perception of the courts, starting with the notorious case of Ilse Koch, who had been sentenced to life imprisonment in 1947 for grossly abusing inmates. When her sentence was reduced to only four years in 1948, even American government officials were shocked. In Germany, public opinion increasingly viewed the U.S. courts as victors’ justice, with no redeeming qualities. The trials had been intended to counter the moral collapse of Germany by demonstrating the fine workings of democracy—a goal that similarly fell into disrepute.

In 1949, Washington established a Senate investigative subcommittee. Ironically, one of the shrillest voices of reproof was that of Senator Joseph McCarthy, who proclaimed that the trial investigators had used “Gestapo techniques.”

The ideological shift away from trying war criminals and toward Cold War rivalries upturned Allied planning for post-war Europe in other ways; for example, as late as 1983 it was confirmed that the United States had employed Nazi war criminal Klaus Barbie as an anti-communist agent almost immediately after the war, protected him from the French (he had carried out his “duties” in France), then arranged for his escape via one of the notorious “rat lines” out of Europe. Naturally, his case was not unique.

If the loose standards of the U.S. military trials contributed to a perception of injustice, the Nuremberg trials fared better. They too were called victors’ justice, which they were, but the proven responsibility of the high-level Nazis, and the fact that their trials were seen to be conducted according to high standards of due process, created a positive legacy that most Germans eventually came to accept. It is no small thing that a reunited Germany was in the vanguard when “Nuremberg’s baby,” the International Criminal Court, was finally agreed to by the world community in the 1990s, a half-century after the Nazi era. As the late historian Tony Judt pointed out in his magisterial work, Postwar, contemporary Germany has grown not less, but more, conscious of its wartime past.

Tomaz Jardim questions the efficiency-driven procedures of the U.S military commissions because they led to abuses. On the other hand he notes that the Mauthausen trial left detailed records of what took place in that camp, knowledge that might never otherwise have come to light. He also argues that the “expedient justice” of the trial prevented perpetrators from slipping back into European society after the American occupation came to an end. Finally, he draws close attention to the unique involvement of the victims themselves in the trial process, beginning at the investigative stage. He tentatively wonders whether this close connection might have resulted in a “measure” of justice.

Some of these “on the other hand” arguments are unconvincing. As Jardim himself indicates, many perpetrators did indeed slip back into society as the U.S. emptied its prisons for strategic reasons. His victim-participation argument is more compelling, for it is true that throughout the history of international criminal justice, the victims of major international crimes have been allowed little engagement. On a personal note, I travelled to Bosnia some years ago to explore just this question: how did the victims of the Yugoslav wars of the 1990s respond to the trials of perpetrators that were taking place thousands of kilometres away at the International Criminal Tribunal for the former Yugoslavia in The Hague? Most, it turned out, felt distanced and removed from the process being carried out in their names. It was not until the emergence of the International Criminal Court that the victims of massive crimes against humanity and major war crimes were at last provided statutory rights.

As part of his critical subtext on the conflict between the need for efficiency and the nature of justice, Jardim seems to be asking whether a “measure” of justice can suffice. My own guess is that a measure can sometimes suffice, as in a well-run truth and reconciliation commission, which includes confession (and hopefully remorse) on the part of the perpetrators; or in the measure of justice embodied in a sincere government apology to the victims of a major international crime. France’s 1995 apology to its Jewish population for the Vichy regime’s wartime deportations is an example of the latter. And in the case of Mauthausen, one may assume that the victims’ active participation in the trial of their oppressors did offer them a high degree of satisfaction. But this measure of justice pales into insignificance when viewed alongside the fatal flaws of the trial itself. A prosecution premised upon guilt by association is simply and patently unjust. Nothing can erase that bottom line.

The author alludes briefly to the recent U.S. military commission courts at Guantanamo Bay as a contemporary example of compromising “legal ideals” in the pursuit of justice; and he is clearly right to bring the issue into the present. As in the immediate post-war period, the standards of military commission tribunals continue to be lower than those of the U.S. federal civilian courts and of the international criminal courts operating in the world (although the former were improved somewhat in 2009). I would, however, take respectful issue with Jardim’s wording. The laws that were, and are, compromised by military commissions are not “ideals,” as he puts it, but the standard operative rules of due process that guarantee the rights of the accused.

One of the many appealing aspects of this interesting book is Tomaz Jardim’s willingness to question the meaning and substance of justice under difficult circumstances. I suspect I will not be the only reader to admire his readiness to create a welcome “thinking space” for others to ponder the same question.

Thursday, Mar. 15, 2012, Globe and Mail

Guilty as charged. There was high drama in The Hague and in the Democratic Republic of the Congo on Wednesday as the judges of the International Criminal Court prepared to release the tribunal’s historic first judgment. The decision was unanimous. Between September, 2002, and August, 2003, Thomas Lubanga Dyilo, a Congolese warlord, had enlisted or kidnapped thousands of children under the age of 15 to fight in his militia. The conflict was over mineral resources in the northern district of Ituri. It is estimated that up to 60,000 civilians were killed in the violence.

Boys and girls, some as young as 7, were trained to use AK-47s and given uniforms that made them feel “proud,” as one escapee put it. They were drugged to suppress fear, then dispatched to the high-danger front lines, where they slaughtered people, mostly civilians, from the opposing ethnic group. They were personal bodyguards. Girls (who made up 40 per cent of the recruits) were gang-raped and then delegated as “wives.” Many were under 10 years of age.

The verdict marks a major milestone for the ICC, which opened its doors just nine years ago. Thomas Lubanga was the first suspect arrested under an ICC warrant, and his case was the first to be brought to trial. His conviction stems directly from the judgments at the postwar Nuremberg Trials, where the top Nazis were convicted of crimes against humanity – a law that was created by that tribunal to address the unprecedented crimes it was prosecuting.

Like Nuremberg, the ICC has now established an important legal precedent. By defining crimes against humanity, Nuremberg opened a new era in international law. With the Lubanga case, the ICC has determined that the use of child soldiers is a major war crime, a verdict that will inform the trials of future perpetrators.

The verdict is also a victory for Mr. Lubanga’s victims, who were included in the trial process, beyond being witnesses for the prosecution, for the first time in the history of international courts. I suspect this was a lesson learned from the outreach failure of the UN court for the former Yugoslavia, where Bosnian victims, watching from afar, felt ignored. Also, for the first time in history, the victims will receive reparations. Part of the court’s operational mandate was to set up a trust fund for just this purpose, although it is reportedly thin enough, given budget cuts, that some people may be disappointed.

The trial took a very long time – too long, according to its critics – and there were problems along the way. For example, in 2008, the proceedings were temporarily halted because the prosecution refused to disclose important evidence. Since this was a first case, unforeseen legal questions had to be dealt with, causing further delays. So yes, timing was an issue; on the other hand, conducting a fair trial according to international standards of due process can’t be rushed. It’s worth noting that expediency may create injustice, as in certain Allied war-crimes trials held in Germany immediately following the war. In one of these, the judges took just four hours to determine the guilt or innocence of individual perpetrators after a rapid group trial. Everyone was convicted.

The sensational Invisible Children video of recent days has highlighted the subject of child soldiers by focusing on the crimes of Ugandan war lord Joseph Kony, who also has been indicted by the ICC and is still at large. Some critics have created a false dichotomy between peacemaking at the end of a conflict versus criminal justice. Peace and justice do not need to be exclusive of one another; they may be sequential. The real problem is the cynical tradition of granting amnesty to people who have committed massive crimes, thus “forgiving” the perpetrators and condoning impunity. In my view, the strength of this video lies in its ability to instruct the young. Of the 70 million viewers, a majority were teenagers who were inspired to identify with the tragic situation of children like themselves. Perhaps the Lubanga case should be partnered with Invisible Children as evidence that justice for child victims is indeed possible.

Since the Congo was brutalized by King Leopold II of Belgium in the 19th century, the country has known no respite from violence. So it is not surprising that when asked about his profession, Mr. Lubanga replied: “I am a politician.” It’s impossible to know how widespread this skewed understanding of politics, governance and law is among individuals who have been indicted by the International Criminal Court. What we can infer is that the mix of politics and war crimes is one of the major challenges facing the international community. And that the ICC, now fully operational, is a major tool for confronting such views.