Ending War Crimes, Chasing the War Criminals [1 ed.] 9789004346345, 9789004219144

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Ending War Crimes, Chasing the War Criminals

The Raoul Wallenberg Institute Human Rights Library Editor-in-Chief Gudmundur Alfredsson Managing Editor Timothy Maldoon Editorial Board Brian Burdekin – Miriam Estrada – Jonas Grimheden Michelo Hansungule – Christina Johnsson Rahmatullah Khan – Manfred Nowak Chris Maina Peter – Bertrand Ramcharan – Per Sevastik Manoj Kumar Sinha – Mpazi Sinjela – Rebecca Stern Sun Shiyan – Lyal Sunga – Zhang Wei – Ineta Ziemele

VOLUME 47

The titles published in this series are listed at brill.com/rawa

Ending War Crimes, Chasing the War Criminals By

Jonathan Power

LEIDEN | BOSTON

Library of Congress Control Number: 2017947011

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1388-3208 isbn 978-90-04-21914-4 (hardback) isbn 978-90-04-34634-5 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Ending War Crimes, Chasing the War Criminals

I dedicate this book to the editors who have aided me in my pursuit of human rights: Daniel Snowman, producer, BBC Third Programme (Radio3) Margaret Allen, features editor, The Times Murray (Buddy) Weiss, editor-in-chief, The International Herald Tribune Charlotte Curtis, op-ed page editor, The New York Times Melvyn Lasky, editor-in-chief, Encounter magazine David Goodhart, editor-in-chief, Prospect magazine Margaret Bluman, editor, Penguin Books David Baker, editor, McGraw-Hill Lindy Melman, Brill Gudmundur Alfredsson, Affiliated Professor, Raoul Wallenberg Institute

Previous books by Jonathan Power: Development Economics (Longmans, 1971) World of Hunger (Temple Smith, 1976) Migrant Workers in Western Europe and the United States (Pergamon, 1979) Against Oblivion (Harper Collins, UK and McGraw-Hill, US, 1981) A Vision of Hope – The Fiftieth Anniversary of the United Nations (Regency, 1995) Like Water on Stone (Penguin, 2001, reprinted 2002) Conundrums of Humanity – The Big Foreign Policy Questions of Our Day (Martinus Nijhoff, 2007, reprinted and revised 2014)

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“Make silence and listen well To the sombre enumeration Of the unnameable infamy Of crimes and violence Yet unpunished.” – Kurt Weill

Ending War Crimes, Chasing the War Criminals

Table of Contents

Outlineviii Prefacexi 1

Adolf Eichmann, the Concentration Camp Boss– His Escape, Arrest and Hanging

2

Heinrich Himmler, Hitler’s Deputy – From Boyhood to Chief Murderer of the Jews

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3

From Nuremberg to the International Criminal Court

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4

African War Crimes and the Pursuit of International Justice

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5

Western War Criminals – McNamara, Kissinger, Bush and Blair

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6

Ariel Sharon – Israel’s War Crimes General

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7

Guatemala – “Only Political Killings”

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8

Bangladesh – A Country Looks Backward

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9

The Pinochet Case

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10

The Killing Fields – Cambodia, Pol Pot and the Khmer Rouge

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11

The War in Ex-Yugoslavia – The Hunting Down and Trials of Its Leaders

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12

War Crimes Can Be Committed When Human Rights Are Pursued by Making War

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13

Conclusion – The Perspective from Outer Space 

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Index131

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Outline Chapter 1: This chapter looks at the character of Adolf Eichmann, the Nazi who ran the concentration camps. It is an intriguing story of his fleeing to Brazil at war’s end, living incognito for many years and then being ousted by his son’s half-Jewish girlfriend. He was kidnapped and spirited out of Argentina by Israeli agents, tried and executed. Chapter 2: Himmler was Hitler’s deputy. This is the story of his boyhood, his grow-

ing up and his emergence in adulthood as a top Nazi who personally ordered the killing of millions of Jews. It asks the question how could a gentle and respectful boy and young man coming from a sober middle class, Catholic family, so change his personality in such a short time.

Chapter 3: Modern day war crimes punishment began with the Nuremberg tri-

als at the end of World War 2 when senior Nazis were put on trial. Today, after a long gestation period, there is now the International War Crimes Court where alleged war criminals can be tried and sentenced to imprisonment.

Chapter 4: This chapter examines the role played by some of Africa’s major war

criminals and how they came to trial – latterly in the International Criminal Court (ICC).

Chapter 5: The Western world has its alleged war criminals too. The chapter be-

gins with Robert McNamara who was President Kennedy’s secretary of defence and a key player in the war in Vietnam. Later in life he accused himself publicly of having committed war crimes. Then follows portraits of Henry Kissinger, George W. Bush and Tony Blair who many believe are war criminals that should be arrested and sent for trial.

Chapter 6: Ariel Sharon was once Israel’s most important general scourge of the Arab armies and, later, prime minister. He had no compunction about admitting the atrocities he had committed and defended himself vigorously. Chapter 7: Guatemala, said the secretary-general of Amnesty International, was

a country with “no political prisoners only political killings”. The author was the journalist responsible for proving that the president of Guatemala was personally directing the death squads which decimated many Indian villages and opposition figures. Over 30 years the author has continued to visit Guatemala and monitor the slow, incremental, improvement in human rights. It has often been one step forward and two steps back but now the courts appear to be taking a firm and courageous stand, convicting many war criminals including a former president.

Ending War Crimes, Chasing the War Criminals

Chapter 8: Bangladesh is a rare example of a country that brought its own war

criminals to justice. They were Bangladeshi citizens who aided West Pakistan in its ruthless war to subdue the independence rebellion in its eastern wing (Bangladesh).

Chapter 9: The story of Pinochet, the ex-military dictator of Chile, responsible

for thousands of deaths, disappearances and horrendous torture, seized the imagination of the British public after he was arrested in a London clinic during a secret visit to the UK. In a case that went right up to the Supreme Court, it was found that he did not have sovereign immunity and could be sent for trial. But instead of a trial the Labour government allowed him to return to Chile on health grounds where he lived without apparent serious illness for quite a few more years.

Chapter 10: Cambodia is the country that suffered the worst genocide since World War 2. The Khmer Rouge movement led by Pol Pot decimated Cambodia’s population, murdering around two million people. After many years of political support of the Khmer Rouge by Western countries, which fought for it to keep Cambodia’s seat at the UN, opinion f inally changed in the time of President George W.H. Bush. The way was clear for the UN to establish in Cambodia a tribunal for trying war crimes. The author has visited it and sat in on the trials which are still continuing. Chapter 11: This chapter begins by examining the history of the civil war in exYugoslavia and how after horrendous bloodshed the UN set up an ad hoc court to try suspected war criminals. It investigates the decade-long hunt to capture Radovan Karadzic, the leader of the Serb effort to crush the Bosnians, and his top general, Ratko Mladic, and their subsequent trial at the ICC. Chapter 12: Can human rights be pursued by making war? Or is there always a chance a crime against humanity might occur, as Amnesty International said it did, when NATO bombed Serbia in 1999? Chapter 13: Conclusion – The Perspective from Outer Space. Index

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Ending War Crimes, Chasing the War Criminals

Preface

Ending War Crimes, Chasing the War Criminals is one of the most creative and brilliant books on international criminal law that I have read lately. After devouring it with passionate fascination, I can say that this book will grasp your attention. It will enchant your soul, essentially because this book is not about law, but it is. It is not a book on transitional justice, although it is. It is not a book of history, and nevertheless it is. It is not a literary masterpiece, however it utterly is. Jonathan Power, page after page, introduces us to the horrors and evilness of the world of war crimes, but more interestingly to the demos, corruption and hypocrisy of international criminal law with all its geopolitical and economic interests tarnishing the sacred and ethic principle of the independence of justice. Jonathan Power leads the reader, as a modern Theseus, through a terrible labyrinth showing us, in a magisterial fashion, the modern Minotaurs: human monsters devouring millions of human lives for the sustenance of their horrific minds, or their ambition, greed and hatred of their dreadful souls, all disguised under the bloodstained reasons of defending “democracy and freedom”. All of them “protecting” the very same people they were killing. Jonathan Power walks us through the seven circles of Dante’s Inferno where we will face the crimes of Eichmann, Himmler, Sharon, Lucas-García, Karadzic, Pol Pot, Pinochet, Yahya Khan, the CIA, the UN forces themselves, passing by McNamara, Nixon, Kissinger, Bush and Blair. The whole world is tainted with the innocent blood of thousands of humans being guilty only of standing for a different or opposed position to the supreme will, the politics, ideas and doctrines produced by the modern ferocious Minotaurs resembling a contemporary labyrinth where the majority of humanity is now struggling to survive. But Power does not stop there. Following Theseus’ deeds, he returns us to hope. A brave and courageous hope that starts by denouncing and recounting the evilness of an outrageous system. Power, as Theseus, is able to come back to the light. He navigates back through the labyrinth following the thread of human rights and peace sustained and protected by equally courageous civil society organisations, advocates and fighters for the truth.

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Essentially, he returns to the light of hope for humanity because, as Julius Fučík wrote in his unforgettable Notes from the Gallows: “There is hope. There is always hope for Humanity, even against all odds!” Jonathan Power’s book is, ultimately, a masterpiece of light and hope! Dr. Miriam Estrada Professor United Nations University for Peace Costa Rica January 2017

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Ending War Crimes, Chasing the War Criminals

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Adolf Eichmann, the Concentration Camp Boss– His Escape, Arrest and Hanging

War crimes go back millennia. It has been and remains a common condition of humanity. All Christians know about King Herod who, on being informed by the wise men that a messiah had been recently born in his kingdom, ordered all the male children under two to be put to death. Most Jews, for their part, bury their head in the sands, refusing to discuss openly an account in the book of Numbers in the Old Testament that describes Moses dispatching his troops to kill all the women and children in a tribe his generals had just defeated, saying he been told by God to order the killing. In the mid-20th century the Jews themselves suffered an even worse fate, as the Nazi regime of Germany imposed its “Final Solution” – the attempted elimination of all the Jews in Europe. A.M. Rosenthal, a Jew and former editor-in-chief of the New York Times, filed a dispatch from Auschwitz: Brzezinka, Poland. – The most terrible thing of all, somehow, was that at Brzezinka the sun was bright and warm, the rows of graceful poplars were lovely to look upon, and on the grass near the gates children played. It all seemed frighteningly wrong, as in a nightmare, that at Brzezinka the sun should ever shine or that there should be light and greenness and the sound of young laughter. It would be fitting if at Brzezinka the sun never shone and the grass withered, because this is a place of unutterable terror. And yet every day, from all over the world, people come to Brzezinka, quite possibly the most grisly tourist centre on earth. They come for a variety of reasons—to see if it could really have been true, to remind themselves not to forget, to pay homage to the dead by the simple act of looking upon their place of suffering. Brzezinka is a couple of miles from the better-known southern Polish town of Oświęcim. Oświęcim has about 12,000 inhabitants, is situated about 171 miles

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from Warsaw, and lies in a damp, marshy area at the eastern end of the pass called the Moravian Gate. Brzezinka and Oświęcim together formed part of that minutely organized factory of torture and death that the Nazis called Konzentrationslager Auschwitz. By now, fourteen years after the last batch of prisoners was herded naked into the gas chambers by dogs and guards, the story of Auschwitz has been told a great many times. Some of the inmates have written of those memories of which sane men cannot conceive. Rudolf Franz Ferdinand Hoess, the superintendent of the camp, before he was executed wrote his detailed memoirs of mass exterminations and the experiments on living bodies. Four million people died here, the Poles say. And so there is no news to report about Auschwitz. There is merely the compulsion to write something about it, a compulsion that grows out of a restless feeling that to have visited Auschwitz and then turned away without having said or written anything would somehow be a most grievous act of discourtesy to those who died here. Brzezinka and Oświęcim are very quiet places now; the screams can no longer be heard. The tourist walks silently, quickly at first to get it over with and then, as his mind peoples the barracks and the chambers and the dungeons and flogging posts, he walks draggingly. The guide does not say much either, because there is nothing much for him to say after he has pointed. For every visitor there is one particular bit of horror that he knows he will never forget. For some it is seeing the rebuilt gas chamber at Oświęcim and being told that this is the “small one.” For others it is the fact that at Brzezinka, in the ruins of the gas chambers and the crematoria the Germans blew up when they retreated, there are daisies growing. There are visitors who gaze blankly at the gas chambers and the furnaces because their minds simply cannot encompass them, but stand shivering before the great mounds of human hair behind the plate-glass window or the piles of babies’ shoes or the brick cells where men sentenced to death by suffocation were walled up. One visitor opened his mouth in a silent scream simply at the sight of boxes –great stretches of three-tiered wooden boxes in the women’s barracks. They were about six feet wide, about three feet high, and into them from five to ten prisoners were shoved for the night. The guide walks quickly through the barracks. Nothing more to see here.

Ending War Crimes, Chasing the War Criminals

A brick building where sterilization experiments were carried out on women prisoners. The guide tries the door – it’s locked. The visitor is grateful that he does not have to go in, and then flushes with shame. A long corridor where rows of faces stare from the walls. Thousands of pictures, the photographs of prisoners. They are all dead now, the men and women who stood before the cameras, and they all knew they were to die. They all stare blank-faced, but one picture, in the middle of a row, seizes the eye and wrenches the mind. A girl, twenty-two years old, plumpy pretty, blond. She is smiling gently, as at a sweet, treasured thought. What was the thought that passed through her young mind and is now her memorial on the wall of the dead at Auschwitz? Into the suffocation dungeons the visitor is taken for a moment and feels himself strangling. Another visitor goes in, stumbles out, and crosses herself. There is no place to pray in Auschwitz. The visitors look pleadingly at each other and say to the guide, “Enough.” There is nothing new to report about Auschwitz. It was a sunny day and the trees were green and at the gates the children played.

At the end of World War 2, Adolf Eichmann, the chief organiser of the extermination of the Jews in the concentration camps, of which Auschwitz was one of the most notorious, was captured by the US. The Americans had no idea who they had on their hands – he was using another name, “Otto Eckmann”, and had the papers to match. Early in 1946 he escaped from American custody and hid in Altensalzkoth, an obscure hamlet on the Lüneburg Heath, for a few years. At the beginning of 1950, worried by the continuing effort to track him down, Eichmann went to Italy where he posed as a refugee named Ricardo Klement. With the help of a Franciscan friar who had connections with Bishop Alois Hudal, who organised one of the first post-war escape routes for Axis personnel, Eichmann obtained an International Committee of the Red Cross humanitarian passport, issued in Geneva and an Argentine visa. Both of these were issued to “Ricardo Klement, technician”. Eichmann boarded a ship heading for Argentina. For the next ten years he worked in several odd jobs in the Buenos Aires area –from factory foreman, to junior water engineer and professional rabbit farmer. In June 2006, old CIA documents about Nazis were released. Among the 27,000 documents was a March 1958 memo from the German BND intelligence agency to the CIA which stated that Eichmann was reported to have lived in Argentina since 1952 using the alias “Clemens”. The CIA had taken no action on this information because Eichmann’s arrest, it has been argued, would embarrass the US and Germany by turning public attention on the former Nazis they

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had recruited. For example, the West German government, headed by Konrad Adenauer, was worried about what Eichmann might say about the past of Hans Globke, Adenauer’s national security adviser, who had worked with Eichmann in the Jewish Affairs department and helped draft the 1935 Nuremberg Laws. At the request of the West German government, the CIA persuaded Life magazine to delete any reference to Globke from Eichmann’s memoirs which it had bought from his family. Around the same time Israeli intelligence had decided to give up looking for Eichmann in Argentina because they could not discover his alias. Throughout the 1950s many Jewish victims of the Holocaust dedicated themselves to finding Eichmann and other notorious Nazis. Among them was the Jewish Nazi hunter Simon Wiesenthal. In 1954, Wiesenthal received a postcard from an associate living in Buenos Aires saying Eichmann was in Argentina. The message read in part: Ich sah jenes schmutzige Schwein Eichmann (I saw that filthy pig Eichmann). Er wohnt in der Nähe von Buenos Aires und arbeitet für ein Wassergeschäft (He lives near Buenos Aires and works for a water company). With this and other information collected by Wiesenthal, Israeli intelligence had solid leads about Eichmann’s whereabouts. It did not follow them up. Instrumental in exposing Eichmann’s identity was Lothar Hermann. He was a worker of Jewish descent who fled from Germany to Argentina following his incarceration in Dachau. By the 1950s, Hermann had settled into life in Buenos Aires with his family. His daughter, Sylvia, became acquainted with Eichmann’s family and romantically involved with Klaus Eichmann. On one occasion Klaus made boastful remarks to her about his father’s life as a top Nazi. (This was after his girlfriend provocatively had wondered aloud why his apparently intelligent father had such a lowly job and her boyfriend, feeling humiliated, went on the offensive.) She told her father. In 1957, Hermann realised, after reading a newspaper article about fleeing Nazis, who his daughter was dating. He sent Sylvia to the Eichmann’s home on a fact-finding mission. She was met at the door by Eichmann himself. She asked for Klaus and, after learning that he was not home, asked whether she was speaking to his father. Eichmann confirmed this fact. Hermann began a correspondence with Fritz Bauer, chief prosecutor for the West German state of Hessen, and provided details about Eichmann’s person and life. He contacted Israeli officials, who worked closely with Hermann over the next couple of years to learn about Eichmann and to formulate a plan to capture him. In 1959, the Mossad was informed that Eichmann was in Buenos Aires under the name Ricardo Klement. Through relentless surveillance, it was concluded that Ricardo Klement was, in fact, Adolf Eichmann. The Israeli government then approved a covert operation to capture Eichmann and bring him to Jerusalem for trial as a war criminal. The Israelis continued their surveillance of Eichmann through the first months of 1960 until it was judged safe to take him. Eichmann was captured by a team of Mossad and Shin Bet agents in a suburb of Buenos Aires on 11 May 1960. After observing Eichmann extensively, a

Ending War Crimes, Chasing the War Criminals

team of Mossad agents waited for him as he journeyed home from his work as foreman at a Mercedes Benz factory. The Mossad decided they would ambush Eichmann when he was walking from the bus stop to his house. When Eichmann got off the bus two Mossad men wrestled him to the ground and pushed him into a car. While in the car he reportedly told the Mossad: “I have already surrendered to my fate.” He was then brought to the Mossad safe house. There he was tied to a chair, ungagged and interrogated. The interrogators concluded that Klement was undoubtedly Eichmann. According to accounts, Eichmann was given a choice between instant death or trial in Israel. He chose to stand trial. Eichmann was drugged to make him appear drunk and dressed as a flight attendant. Then on 21 May 1960, they smuggled Eichmann out of Argentina on board an El Al flight from Argentina to Israel. He was tried in Israel, convicted and hanged on 31 May 1962. “The trouble with Eichmann”, wrote the American philosopher and writer Hannah Arendt, herself a refugee from Nazi Germany, “was precisely that so many were like him, and many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal. From the viewpoint of our legal institutions and moral standards of judgement this normality was much more terrifying than all the atrocities put together.” How right she was. Eichmann was living for a decade a normal working and family life in Argentina. In his final statement to the court he argued that his hopes for justice were disappointed. The court had not believed him, although he had always done his best to tell the truth. The court did not understand him. He had never been a Jew-hater, and he had never willed the murder of human beings. His guilt came from his obedience, and obedience is generally praised as a virtue. His virtue had been abused by the Nazi leaders. But he was not one of the ruling clique. He was a victim of it, and only these leaders deserved punishment. Hannah Arendt covered the Eichmann trial for the New Yorker. Her essays were immediately controversial and have remained so ever since. They later became a book, The Origins of Totalitarianism. As did Eichmann she made the provocative point that he was not the malicious organiser of the Nazi death camps, as Israeli prosecutors charged, but rather a mediocre bureaucrat: “A leaf in the whirlwind of time”, not “a monster” but “a clown”. Hence the enduring phrase from her book’s subtitle, “The Banality of Evil”. Arendt’s second point was that the “Jewish Councils” in Germany and Poland were complicit in the mass murder of their own people. They helped the Nazis round up the victims, confiscate their property and send them off on trains to their doom. Without these Jewish leaders, Arendt wrote, there would have been chaos and misery but the total number of victims would have been less than the four and a half to six million people it was. “To a Jew”, she wrote, “this role of the Jewish leadership was undoubtedly the darkest chapter of this whole dark story”. Arendt was accused of being a self-hating Jew. The Anti-Defamation League sent letters urging rabbis to denounce her. Jewish organisations paid researchers

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to peruse her books for errors. Some of her closest friends did not speak to her for years and a number never. Arendt never revised her opinion on “the banality of evil”. She believed that Eichmann committed his deeds with no awareness of their evil, not even with virulent anti-Semitism. Yet in 1957, three years before his capture, Willem Sassen, a former SS officer, interviewed Eichmann at length. The tapes, which were only discovered a few years ago, reveal Eichmann boasting that he had helped draft the letter ordering the Final Solution. “I worked to kindle the fire”, he said. “I was not just a recipient of orders. Had I been that, I would have been an imbecile. I was an idealist.”1 A book published in 2014, Eichmann Before Jerusalem: The Unexamined Life Of A Mass Murderer, by Bettina Stangneth, “convincingly shows in 600 pages of detailed research that Eichmann was no banal bureaucrat. He was a manipulative and unrepentant Nazi who cunningly deceived Arendt and many others at the trial by assuming the guise of a timid official.”2 The Supreme Court, upholding Eichmann’s conviction, came to a similar opinion. It wrote that “the appellant had received no ‘superior orders’ at all. He was his own superior, and he gave all orders in matters that concerned Jewish affairs.” Moreover, he had “eclipsed in importance all his superiors”. In reply to the defence’s argument that the Jews would have been no better off had Eichmann never existed, the judges stated that “the idea of the Final Solution would never have assumed the infernal forms of the flayed skin and tortured flesh of millions of Jews without the fanatical zeal and the unquenchable blood thirst of the appellant and his accomplices”. Eichmann was hanged. Eichmann was not the only Nazi functionary who believed he was somehow “innocent”. In a recent book by Thomas Harding, Hanns and Rudolf: The German Jew and the Hunt for the Kommandant of Auschwitz, he describes how Rudolf Hoess, the commandant of the extermination camp where Jews en masse were sent to the gas ovens, was “a fastidious man who strangely flinched from displays of violence”. Like Ernest Himmler, the head of the SS and confidant of Hitler, he was passionate about farming and dreamt of a rural utopia for the German people in a Poland without Jews. “In Auschwitz his life was divided between his family and the mechanics of mass murder. His wife, Hedwig, the so-called “angel of Auschwitz”, ran the family villa in the concentration camp, complete with flower beds, servants and art work stolen from the Jews. She and her family lived a life of luxury amid the attendant carnage.” 3 As with Himmler, Hoess learnt how much easier it is to kill people once they have been deprived of their humanity. “They are not like you and me”, Hoe1 2 3

I am indebted to Fred Kaplan of the New York Times for the information in the preceding four paragraphs. From a review by Adrew Moravcsik in Foreign Affairs. This quotation comes from a review article in the Financial Times by Ian Thomson.

Ending War Crimes, Chasing the War Criminals

ss said of the Auschwitz Jews to his brother-in-law. “They are different ... They are here in order to die.” When Hoess was finally run down by the British he was disguised as a farmer. To his American prosecutor the captive looked more like “a grocer’s assistant” than a mass murderer. Indeed, most of the 6,000 German soldiers, officials and workmen stationed at Auschwitz were unremarkable “Schreibtischtater – desk labourers” – who eliminated the innocent at the stroke of a pen. Hoess was no exception. In 1947 he was hanged by the Allies at the age of 46. *** Reserve Police Battalion 101 had been given the task of rounding up 1,800 Jews in the Polish village of Józefów. The orders were that the men of working age were to be sent to a concentration camp in Lublin, the women and children were to be shot. Most of the officers apparently accepted the order, but one, Lt. Heinz Buchmann, the head of a family lumber business in Hamburg did not. He told his superior that he “would in no case participate in such an action, in which defenceless women and children are shot”. He asked for another assignment, and his superior arranged for him to be in charge of the escort for the men to be sent to Lublin. The commanding officer, Major Trapp, seems to have been an ambiguous man. Although he systematically arranged the plan for dealing with the villagers, he apparently decided that he did not want to witness the executions. One fellow officer recorded that: Today I can still see exactly before my eyes Major Trapp there in the room pacing back and forth with his hands behind his back. He said something like, “Man, such jobs don’t suit me. But orders are orders.” Another officer remembered vividly “How Trapp, finally alone in our room, sat on a stool and wept bitterly. The tears really flowed.” Another witnessed Trapp at his headquarters. “Trapp ran around excitedly and then suddenly stopped dead in front of me, stared, and asked if I agreed with the orders. I looked him straight in the eye and said ‘No, Herr Major!’. He then began to run round again and wept like a child.” Trapp later confided to his driver “If this Jewish business is ever avenged on earth then have mercy on us Germans.”

That day Trapp implemented his orders. The men were divided into search teams and fanned out across the village. Many of the soldiers tried to avoid shooting the children and infants. But only a dozen were brave enough to step out and return their rifles. The first sergeant, Kammer, although carrying out the job he had been given, was receptive to a friend who asked for a re-assignment. He sent him for guard duty on the edge of the forest where the villagers were to be buried. Other soldiers who knew Kammer well were given guard duty along the truck route. Some had tried in vain to approach the captain of the bri-

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gade, saying that they were fathers with children of their own and they could not do it. He told them they had to. However Kammer dismissed them from further duty and sent them back to the barracks. Other soldiers shot past their victims; others spent inordinate amounts of time searching the houses so that they would not be assigned to one of the killing teams in the market place. At the end of the day of killing, as the soldiers were getting into their trucks to return to the barracks, a ten year old girl, bleeding from the head, was brought to Trapp. He took her in his arms and reportedly said: “You shall remain alive.” Back in the barracks the men were depressed, angered, embittered and shaken. Generous quantities of alcohol were produced and downed at a rapid pace. Trapp made the rounds, trying to control and reassure them, and placing the responsibility on higher authorities. After that the battalion was reassigned to the northern sector of the Lublin district. Among both soldiers and officers the subject of that terrible day became taboo, not to be talked about among themselves nor to the world outside. 4 *** A rabid anti-Semitism was obviously what underlay the Nazi’s decision to exterminate the Jews. But how could it happen, how could Hitler, his henchmen and his party be both popular enough and well-organised enough to carry out such an extreme policy, the like of which the world has never seen before or since? How could Hitler get away with his savage war crimes in a country which cherished its Christian beliefs, which along with its neighbour, Austria (that became a fully integrated part of the Reich), produced the most exquisite religious music of all time, and whose people were among the most cultured of Europe? Moreover, he did not become chancellor of Germany by a coup d’état but by the vote, even gaining more votes in his second election than his first. He had presented himself to the electorate as a democrat. The Gestapo in 1937 had around 7,000 employees, including secretarial staff to police a country of 60 million people. Most people simply did not need to be subjected to surveillance or detention. Gotz Aly in his profound book Hitler’s Beneficiaries has given us part of the answer: “The material interests of millions of individuals first had to be brought together with anti-Semitic ideology before the great crime we now know as the Holocaust could take on its genocidal momentum.” How did this megalomaniacal and criminal undertaking, the Nazi govern4

This information is drawn from the archives of the Office of the State Prosecutor, Hamburg and appears in a chapter of the book Violence in War and Peace entitled “Initiation to Mass Murder” by Christopher Browning.

Ending War Crimes, Chasing the War Criminals

ment, succeed in persuading the majority of Germans that it was working in their interest? Well known as part answers are the liberation of Germany from its twin evils of impossible levels of inflation and the contagion of the world’s Americanled Great Depression. Also there was the vanquishing of the sanctions regime that had crippled the economy after the Versailles Treaty had imposed its conditions after Germany was defeated in the First World War. These may be part of the answers – and are widely accepted – but a part barely written about is that Hitler had an uncanny ability to do two things: first, to devise domestic policies that were remarkably friendly towards the lower classes, soaking the wealthy and redistributing the burdens of wartime to the benefit of the underprivileged, and, second, to get the best out of the permanent civil service so that his policies were well implemented. It is widely thought (thoughts without thinking) in the Western world that Hitler ran a police state that intimidated the populace. In reality this was only as far as the Jews were concerned. For the rest he governed with a light hand. To put the “coercion” debate into perspective the post-war East German communist state employed 190,000 official surveillance experts and an equal number of “unofficial collaborators” to watch over a populace of 17 million. In comparison in 1937 the Gestapo, Germany’s secret police, had just over 7,000 employees to watch over a populace of 60 million. Hitler ended the Great Depression not by rearmament or going to war as the Americans and British later did (Germany re-armed much later than is generally realised) but by implementing the economic policies of the great British economist of the 1930s and 40s John Maynard Keynes – pumping money into the economy by spending very large amounts on infrastructure and thus job creation. Where Hitler got his economic ideas from no one really knows. Had he been told about Keynes or was it just his instincts that led him to override the mainstream conservative economic advice his senior civil servants gave him? Hitler made cars affordable to everyday Germans. His government introduced the previously unknown idea of vacations. It doubled the number of days off for workers and began to develop large-scale tourism in Germany. His regime built hospitals and privileged families over single people and childless couples. It insured farmers against the vagaries of weather and the world market. It introduced a graduated income tax and child-support allowances, kindergartens, and worked hard to end the poverty faced by many retirees. Rent-control and tenants’ rights were strengthened. Debtors were given increased protection against having their wages seized and forbade creditors from repossessing the belongings of draftees. This was the socialism in National Socialism (the Nazi party’s name for its movement). Himmler spoke of the “socialism of good blood”, i.e. without the Jews, homosexuals and gypsies. When war finally broke out, the Nazi state, undertaking the most expensive war in history, made sure that the majority of Germans bore virtually none of the costs. Occupied countries had to pay large amounts of tribute to Germany.

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The Wehrmacht plundered millions of tons of food in order to feed its troops. Billions of Reichsmark were appropriated from the Jews. Without a well-oiled civil service machine to carry out his policies Hitler’s decisions would have quickly appeared to be nothing more than pious hopes. But the civil service literally delivered the goods. Moreover the general auditor’s office and the civil court system, among other institutions, continued to operate much as they did before 1933. The leadership of such institutions maintained considerable autonomy and their bureaucracies worked with a great deal of efficiency. Nazi district leaders were constantly frustrated by civil servants who insisted that fiscal questions be decided in strict accordance with national budgetary guidelines. Even when it came to the implementation of the Fuhrer’s anti-Semitic agenda the civil service made the wheels roll. When Hitler proclaimed the Nuremberg Laws at the annual Nazi Party conference in 1935 which mandated the preservation of “German blood” against threats from Jews not much thought had been given to how to do this. Thus was created a lasting “togetherness” that bonded the masses to their Fuhrer. It was this that encouraged the populace to turn a blind eye to the Jewish families who disappeared from their streets and schools and the Jewish workers, whether they were labourers or professors who were at their jobs one day and not the next. Even the members of the world-renowned Berlin Philharmonic orchestra put their heads down when their Jewish colleagues one day did not turn up for rehearsals. They did nothing, neither did their world renowned conductor, Wilhelm Furtwangler. His successor, Herbert von Karajan, the top selling classical recording artist of all time, was a member of the Nazi Party. *** It was in this atmosphere that Adolf Eichmann could do the evil that all but destroyed a great people. Eichmann was hunted down. So were many other Nazi functionaries. The German authorities themselves have done a good job in tracking down ex-Nazis who held responsible positions. No Nazi hunter approaches the stature of the late Simon Wiesenthal, a Jew, who was born in 1908 on the eastern edge of the Austro-Hungarian Empire. He spent the war in a string of concentration camps. After the war he started a Nazi-hunting operation that worked out of his small apartment in Vienna. It had enormous reach and influence. By the end of his life in 2005 it had grown to be a multi-million dollar human rights organisation. He was responsible for the capture of many high-flying Nazis. One of his great catches was Karl Silberbauer, the Gestapo officer, who arrested Anne Frank and her family. According to Katie Engelhart, writing in Foreign Policy in January 2104, the last Nazi hunter is Efraim Zuroff, the Israel director of the Simon Wiesenthal Center.

Ending War Crimes, Chasing the War Criminals

In one relatively recent operation he tracked down Laszlo Csatary who died in a Hungarian hospital in August 2013. He was aged 98. He had served as a commandant of an internment camp where, with the help of the Hungarian police, the Gestapo sent for imprisonment thousands of Jews. When he died he was facing charges that nearly 70 years ago he “intentionally assisted the unlawful executions and tortures committed against Jewish people”. He had lived quietly for 50 years as an art dealer in Canada. When the Canadian authorities identified him in 1997 he fled into hiding. Zuroff tracked him down after he received an anonymous email offering information in return for money. The two agreed on a price and the source handed over Csatary’s Budapest address. Zuroff turned over his information to a Hungarian prosecutor. Zuroff then set about potential witnesses, mainly Holocaust survivors who had spent time in the camp. The authorities dragged their feet so Zuroff turned to the popular British tabloid The Sun which loved a good anti-Nazi story. The Sun sent a team of reporters to track Csatary and ended up knocking on his door and he came to the door in his underwear. They photographed him. The authorities placed him under house arrest. The media covered the ensuing events in detail. Some criticised Csaraty’s capture because he was so old, but Zuroff replied, “the passage of time should not afford protection for Holocaust perpetrators”. Zuroff remains on the trail, although he has been criticised as a swashbuckling bounty hunter and a historical avenger by a few Holocaust historians and even some Jewish community leaders thinks he is too zealous when he drags into courtrooms wizened old men. He replies that there is no statute of limitations on genocide. (The International War Crimes Court has the same policy today which adds to the force of its deterrence. It could well be pursuing suspects who have committed war crimes today at the end of the century. As Joe Louis, the world heavyweight boxing champion, once said, “You can run but you can’t hide.”) In 1987 Zuroff began to publicise lists of alleged Nazis still at large. The press loved it. One of those featured was Josef Shwammberger, a former camp commandment. His photo was splashed across Argentinean newspapers where rumour had it he was living. He was soon traced, arrested and later convicted in a German court. In 2013 Zuroff began a new public relations offensive launching an unprecedented poster campaign with money donated by German companies. They read, “Spat, Aber Nicht Zu Spat” (“it’s not too late”). The poster gave a toll-free hotline. The German judicial authorities announced that they were launching a last push to bring former death camp guards to trial. Zuroff reckons that he has helped locate more than 3,000 Nazis. He looks ahead to the day when he grows old and the hunting ends. “It will be a sad moment”, he reflects. “I have devoted most of my life to a mission, and that mission is almost over. And the success was very partial. In other words, so many people got away with it.”

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One hopes that the ICC with more resources, more staff and a finer tooth comb will not allow recent, present and future war criminals to slip through its net. That is necessary if potential and would-be war criminals are to have a good chance of being deterred. Dietrich Bonhoeffer who paid for his life at the age of 39 for opposing the Nazis wrote, “Not to speak is to speak. Not to act is to act.” Fine words which should prod us every day to remember why so many people all over the world fought to create the International Criminal Court to bring to book present and future day “Nazis”.

Ending War Crimes, Chasing the War Criminals

2

Heinrich Himmler, Hitler’s Deputy – From Boyhood to Chief Murderer of the Jews

How are Nazi war criminals made? Is it in their genes or are they formed by their bringing up and their childhood habitat? With Heinrich Himmler, one of Hitler’s closest henchman and the man in charge of the “Final Solution”, neither can be said to be true. Himmler’s father was the son of a low-ranking, very Protestant, civil servant who was a classic case of upward social mobility. His only son, Gerhard, was only seven when he died, and he was brought up by his pious Catholic mother. He later studied at Munich University. He became private tutor to the brother of the king of Bavaria. He married Anna Maria Heyder, the daughter of a Munich businessman. She brought a fortune to the marriage. Their union produced two sons; the second was Heinrich, born in October 1900. His godfather was Prince Heinrich, the son of the king’s brother. Mr. and Mrs. Himmler believed in regular habits, hard work, religious observance, and for their sons classical history, Latin and Greek. He was very much a home-loving father who shared with his boys his liking for stamp collecting and stenography. They were encouraged to make friends with the children of the upper middle class. The family went to church and confession every week, was monarchist, conservative in politics and economically secure. There is nothing to suggest there was any significant instability in the family. Certainly Heinrich got enough love for that not to be an excuse for later deviant behaviour. In 1906 Heinrich started at the cathedral school. The long summer holidays were spent mostly in the very pretty, soothing, foothills of the Bavarian Alps. When later one of his fellow pupils Wolfgang Hallgarten, who had fled the Nazis to the US and became one of its leading historians, found out who Himmler was he could not believe that Heinrich had become the Gestapo leader. He remembered him as a model pupil who had been liked by his teachers; although among the boys he was considered a swot and had been only moderately popular. He was not bullied and had his friends. A school report from 1914 reads: “He is an apparently very able student who by tireless hard work, burning ambition and very lively participation achieved the best results in the class. His conduct was exemplary.”

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He was fascinated by war and the military. When his brother who was two years older than him reached the age of 17 and joined the Territorials, Heinrich wrote in his diary: “If only I was old enough, I’d be out there like a shot.” When Heinrich reached 17 his father wrote to the local military authorities stating that “[m]y son Heinrich has a strong desire to be an infantry officer by profession”. He was accepted. Ironically, once sent to his reserve battalion he became homesick. Constantly he asked his parents to write more often. “Dear Mother! Thank you so much for your news. It’s so horrid of you not to write again”, he wrote in one letter. Most of the correspondence with his family has been preserved. Although he tried to present himself to his parents as manly and adult, his letters continued to demand their lively participation in his everyday concerns and their permanent support in dealing with them. A bit later when he got regular leave on the weekends, he invariably went home. Meanwhile in Bavaria the political atmosphere was deteriorating. The social democratic prime minister was shot by a right-wing extremist. The left proclaimed a soviet republic. It was then that Himmler started to change his outlook on life. He joined the Landshut Free Corps – an armed group of volunteers made up mainly of anti-revolutionary and anti-democratic soldiers returning from World War 1. But he only stayed a member for a couple of months. He still wanted to be an officer in the regular army, but he was not accepted. Then Himmler turned 180 degrees in another direction – he went to study agriculture at the Technical University in Munich, a surprise to all since his family had no connection with the countryside or landowners. In a while he was given a placement (internship) on a farm. He found the physical labour difficult and after five weeks he became badly ill with suspected paratyphoid fever. While ill he read everything he could lay his hands on – Jules Verne, historical fiction such as Goethe, Thomas Mann and Celtic poetry. None of them were war-like or anti-Semitic. But then he turned to reading about politics including a book on the Freemasons whose author claimed they were strongly influenced by the Jews. Himmler wrote in his diary: “A book that sheds light on everything and tells who we have to fight first.” But it is unclear whether he was aiming his barb at the Freemasons or the Jews. Back in the university his health recovered, and he shared a room with his brother. He had many friends including two girls he was drawn to. The friends regularly went to concerts, the theatre, the ice rink, museums and dances. When he got ill they all came to visit him and brought him meals. He became a member of the Apollo duelling fraternity, popular among students. He still went regularly to mass, confession and took communion. In his diary he wrote: “God will come to my aid.” After a Christmas Eve mass with his family he wrote: “We were standing in front of the choir and the solemn mass was a powerful experience. The Church reaches people through its imposing ritual and God through a simple and sweet child.”

Ending War Crimes, Chasing the War Criminals

Again he joined the Territorials and took part in practice alerts and shooting exercises. He joined a big student protest against Count Arco who had murdered the prime minister and received a death sentence. The protests forced the commutation of the sentence to life imprisonment. Towards the end of 1919 he experienced a serious conflict of conscience. There was a debate among the students as to whether Jews were eligible to fight duels and be admitted to the duelling fraternities. Catholic student organisations regarded this as a prejudiced move. Himmler wrote in his diary: “I think I’m heading for a conflict with my religion.” Some days later he wrote: “I prayed, although even before I had more or less got over it. God will show me the way in all my doubts.” He remained very attached to his parents and visited home regularly. “There’s just nowhere as nice as home.” “Good old mummy sends me lots of goodies.” He continued to read literature vociferously. From romance, some erotic, to Ibsen. (The girls he met at university “provoked all sorts of thoughts”.) He read a couple of anti-Semitic books. He wrote of one: “A book that gives a startlingly clear introduction to the Jewish question and makes one approach this subject extremely warily, but also investigates the sources on which the novel was based … The author is, I think, somewhat rabid in his hatred of the Jews. The novel with its anti-Semitic lectures is written purely to push a particular line.” Another two years passed before he had some “big” thoughts on the Jewish question. Meanwhile he wrote that he wanted to be a fair and honest person. He wrote to his father on his 56th birthday: “I promise always to strive to be a good man and remain so.” In the language of his family and his church this undoubtedly meant to him being generous, kind, helpful and unprejudiced. At about the same time Heinrich persuaded his father to take an interest in paramilitary activities. They went to right-wing political meetings together. They were very much on the same wavelength when it came to politics and the role of the military. His anti-Semitism began to take root. From the beginning of 1922 his dairy contains an increasing number of negative characterisations of Jews. A former classmate is referred to as “a Jew boy” and “a Jewish rascal”. Himmler saw himself as “a true Aryan”. In June he took part in a demonstration against the “war guilt lie”. It was a protest against the Versailles Treaty when the victors had imposed stiff reparations on Germany for starting World War 1. Meanwhile high inflation was eating away at his father’s income as a headmaster. His parents could no longer finance his studies. For the first time in his life the cocoon of material safety offered by his family began to suffer. Nevertheless, he did manage to take his final exams in agriculture and received a good grade. He got a satisfactory job as assistant administrator in an artificial fertiliser factory. He stayed a year. In the summer of 1923 the Weimar Republic stumbled into a serious crisis. France had occupied the Ruhr, the industrialised heartland of Germany. In

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Bavaria the right became more radicalised. Once again Himmler joined a paramilitary league, led by Ernst Rohm, who later was to become an important Nazi leader and rival of Himmler. In November 1923 Hitler launched his putsch and overthrew the Bavarian government. In a famous photograph the next day Himmler is seen carrying the flag of the paramilitary Reichskriegsflagge. It was an honour. He was now one of the boys. The putsch failed. Hitler was imprisoned. It was to be almost ten years before a second alliance between the right-wing radicals and right-wing conservatives achieved rather more success. After the putsch Himmler was out of spirits and in financial difficulty. He was an unemployed agronomist looking for a job. But he did find work with the banned Nazi Party which had been driven underground. He performed various services as a courier. He visited Rohm in prison and had “a fairly frank talk”. He was once again living with his parents. He made some local speeches on behalf of the Party. “I spoke about the workers being subject to stock-exchange capital, about food prices, wages and what we ourselves should be doing about it.” During 1923–24 he began to distance himself from Catholicism. He seemed increasingly interested in the occult, reading a lot on the subject. His reading of anti-Semitic literature gathered speed. Two novels combined the theme with eroticism, and he said how he had enjoyed them. Most important he began to read about Hitler. He noted: “He is truly a great man and above all a gentle and pure one. His speeches are a marvellous example of Germanness and Aryanness.” This is the first time that Himmler mentions Hitler in his diary, correspondence or reading-list. In the summer of 1924 Himmler decided to be a full-time political agitator. He was now 24. He got a paid job with the Lower Bavarian Nazi, Gregor Strasser. Besides his political work he also dealt with the economic and social agricultural issues of Lower Bavaria. Later that year Hitler was released from prison. But in his speeches Himmler never mentioned Hitler. He did read Mein Kampf and noted that “[t]here is a lot of truth in it”. But “the first chapters on his youth contain a number of weaknesses”. He appeared to be unimpressed with the second volume. Himmler’s own character seemed wanting to judge by what was being said of him. As he developed in his young adulthood people around him felt he had an overbearing and arrogant manner in dealing with subordinates. He seemed unfriendly, impolite and impersonal, traits that came through in his letters. Nevertheless, using a mixture of earnestness and elbows, he managed to work himself up to belong to Hitler’s immediate staff, although the occasions of his personal contact with Hitler were few and far between. In the summer of 1927 he met his future wife, Margaret Boden, a nurse. By December he apparently lost his virginity. Early the following year they decided to marry. The following August their only child, a girl, Gudrun, was born. He continued to rise in the Party step by step. He was appointed deputy Reichsführer-SS in September 1927, having impressed his superiors with the com-

Ending War Crimes, Chasing the War Criminals

petent way he organised meetings for prominent Party speakers. At that time the SS was very small, concentrating on being a protection squad for the leadership. Himmler was no more than a faceless bureaucrat despite his grand title. But by 1931 he had increased its size and status. It had around 10,000 members. Then it grew to 50,000. In time it became the Nazi’s second paramilitary organisation. He founded the SS’s intelligence wing. All members had to be “Nordic”. On 30 January 1933 Hitler had become chancellor of a coalition government. Six months later the Nazis had taken control of the whole state apparatus. Most observers miss an important part of the picture when they analyse how Hitler could maintain power with the majority of ordinary Germans behind him. Of course the bad taste from being defeated in World War 1 and the very unfair Versailles accords that followed it were factors. So too was the US’s Great Depression which added to Germany’s economic problems. But, importantly, Hitler appeared to have corrective policies for the economic malaise and he had an appealing social programme. He ratcheted up the economy in a way that the world’s most renowned economist, the British John Maynard Keynes, advocated. It is called deficit financing, which means, in common parlance, priming the pump. His conventionally-minded finance minister opposed him. His government spent and spent on autobahns, infrastructure and hospitals. (He did not spend on rearmament until much later.) He spent on improving schools and health services. He increased unemployment pay and pensions. He introduced kindergartens across the nation. Indeed the Nazis were national socialists. The economy improved and improved. A blind eye was turned to the other side of Hitler, including his appointment of Himmler as acting Munich police chief. Hitler authorised Himmler to crack down on dissent. Himmler ordered communists and opposition paramilitaries and others to be placed in “protective custody” in an abandoned factor near Dachau. Himmler was well on his way to becoming ruthless and developing the thick hide of elephant skin that then enveloped him in his future role as Gestapo chief. (The Gestapo was the secret police – a frighteningly cruel organisation which regularly used torture.) The boy with the soft home touch and a sensitive Christian conscience was no more. He shed his religious beliefs although he remained close to his family and tried hard to be a good father. No one can satisfactorily explain his transition. His savage hatred of the Jews was also inexplicable. No Jew had ever done him or his family harm. His family life as he grew up had been the opposite of Hitler’s dysfunctional one. He succeeded in university. He had good friends, mostly non-political, while studying. He chose a warm-hearted wife. He enjoyed agriculture, except when he had to labour in the fields. Of course, like his brother, he was attracted to the military. But going into the non-political, conventional army had been his first choice. For the period before the November pogrom of 1938 it is impossible to find any lengthy anti-Semitic statements by Himmler. He mostly treated the issue of the Jews cursorily. Rather than persecute the Jews, emigration was encouraged. If Jews en masse had taken this advice there would have been no concentra-

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tion camp massacres. The Jewish leadership failed its people. So did Western countries who kept their doors three-quarters closed. Only America was generous. Faced with this the Nazi leadership came up with a plan to relocate Jews to Madagascar. But this depended on keeping the peace with Britain. Later it was decided to send them to the Soviet Union once that country had been defeated. Amazingly, despite his background, it was the churches that bore the hard end of his wrath. In 1938 he declared that “Christian doctrine is responsible for the destruction of every nation”. On another occasion he said: “We must sort out this Christianity. It has plagued us throughout our history and weakened us in every conflict.” And “I’m convinced that the priesthood and the whole of Christianity basically amounts to an eroticized society for the purpose of upholding and maintaining this 2,000 year old Bolshevism.” Catholic religious orders were prosecuted. Nevertheless, the SS did not demand its members leave their churches and 70 per cent of the notorious wing of the SS, the Death’s Head, said in a poll that they were “believers in God”. His family looked upon their son’s career with pride. His father collected newspaper cuttings containing mentions of his son. Heinrich had given him a copy of Mein Kampf, and he told his son that the book engaged him and he viewed Hitler with admiration. Even as the SS became notorious for its vicious violence, his father continued to support him. Step by step Himmler advanced up the political tree to be chief of the German police, Reich Commissioner for the Consolidation of the Ethnic German Nation, Minister of the Interior and Commander of the Reserve Army. In the reach of his power and influence, he was second only to Hitler. From 1941 onwards he introduced a policy of systematic mass murder based on racial criteria. He wanted to see a racially-based power structure, the Greater Germanic Reich. By the end of 1942 the enforced methods of violence of the Nazi state was united in his person. Himmler and Joseph Goebbels, the minister of propaganda, drove forward the policy of exterminating the Jews. Eichmann was their instrument. On the afternoon of 23 May 1945, more than two weeks after the German surrender, a group of about 20 German suspects were brought to the British forces’ interrogation centre. To the utmost surprise of his interrogator, Himmler introduced himself as the minister of the interior. The next day he was subject to a comprehensive medical examination. The doctor tried to remove the blue tipped foreign body he could see in his mouth. Himmler jerked his head to one side and bit into the cyanide capsule. Fifteen minutes later he was dead. His daughter Gudrun is still alive, totally loyal to her father. Himmler when away phoned her every day and brought her to Berlin whenever he could. He even took her as a child to visit a concentration camp. She has never renounced the Nazi ideology. She belongs to an organisation that helps condemned or fugitive former SS members.

Ending War Crimes, Chasing the War Criminals

3

From Nuremberg to the International Criminal Court

International law can be said to have its beginnings in the thoughts and writings of the Dutch 16th century jurist Grotius. Over the centuries it slowly evolved, outlawing slavery, piracy and the use of certain weapons in warfare. But until Nuremberg punishment carried out by an international treaty was not incorporated into any nation’s law. Individual nations could prosecute what they considered an offence, but there it stopped. Nuremberg changed all that. Nuremberg was the victors’ court, established by the Allies at the end of World War 2 to try leading Nazis for war crimes and crimes against humanity, including the attempted elimination of the Jews. Many of the arraigned were from Hitler’s inner circle. Immediately at the war’s end Churchill wanted the top 50 Nazi leaders to be summarily shot. He did not believe they were worthy of a trial. Churchill’s foreign secretary, Anthony Eden, observed that “the guilt of such individuals as Himmler is so black that they fall outside and go beyond the scope of any judicial process”. At first the Americans had a similar view. US Secretary of State Cordell Hull declared: “If I had my way I would take Hitler, Mussolini and Tojo and their accomplices and bring them before a drumhead court martial, and at sunrise the following morning there would occur an historic incident.” Truman and Stalin persuaded Churchill that a public trial with the right of defence was necessary, both to educate public opinion and to make sure revanchist Germans could never use the argument that the Allies did not believe in justice. US Supreme Court Justice Robert Jackson was nominated by Truman as the chief prosecutor, and two judges were appointed to the bench from each of the four Allied powers. The court was presided over by the English Lord Justice Geoffrey Lawrence. The trial leapt from one dramatic moment to another with Goebbels, Hitler’s propaganda chief, acting as if he believed he could win against the prosecution. The court was shown newsreels of the concentration camps and the defendants averted their eyes. “Some sobbed, others sweated or put their heads into their hands; they sat in stunned silence until the court rose, their individual and collective guilt and shame brought home to them for ever and beyond rea-

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sonable doubt”, wrote Geoffrey Robertson in his book Crimes Against Humanity. Twelve of the defendants were sentenced to be hung, and their bodies were cremated in the ovens of the Dachau concentration camp and their ashes emptied into a nameless fast-flowing river. Goering committed suicide in his cell. Three of the 22 defendants were acquitted and seven spared the death penalty, one of whom was Rudolf Hess, Hitler’s deputy who had broken, he claimed, with Hitler when he fled to Scotland, who was incarcerated for the rest of his life. After Nuremberg the Germans themselves carried out the prosecution of over 6,000 cases of Nazi war crimes. In Japan the US set up its own war crimes tribunal to try those responsible for atrocities in many Southeast Asian countries. The bench included judges from India and the Philippines. It lasted for two and half years as against Nuremberg’s one year. The US did not prosecute itself for the greatest of all war crimes in the history of humanity – the nuclear bombing of Hiroshima and Nagasaki when these large cities and their people were incinerated. *** One of the earliest legal documents on war crimes, if not the earliest, was issued by President Abraham Lincoln, “Instructions for the Government of the United States in the Field”. It was applied during the Civil War of 1861–65. Trials were held at the end of the war, notably a trial prosecuting those who ill-treated prisoners of war. Later in 1902 many cases against rank and file soldiers (officers were not targeted) were brought before US Courts Martial at the end of the armed conflict against insurgents in the Philippines, which Spain had ceded to the US in 1898. After World War 1 the Ottomans set out to try persons (the “Young Turks”) responsible for the massacres of the Armenians in the war of 1915–16. But in the end only a few minor characters were prosecuted In 1921, following the end of World War 1 in 1918, German courts brought to trial 12 senior officials and officers but only six were convicted. In 1920 an “Advisory Committee of Jurists”, appointed by the League of Nations, was summoned to prepare the way for the establishment of an International Court of Justice (the World Court) to arbitrate disputes against nations, and also suggested there should be a “High Court of International Justice”. This “would be competent to try crimes constituting a breach of international public order or against the universal law of nations, referred to it by the Assembly or the Council of the League of Nations”. The Assembly rejected the proposal saying it was “premature”. State sovereignty was considered sacrosanct. In 1949 the Geneva Conventions were established outlawing a number of practices of war and laying down new categories of war crimes. The conventions to come, however, had no means by which war criminals could be punished in an international court, although domestic courts could do as they pleased with crimes committed on their own soil. That had to wait until the creation of the ad hoc court to try crimes committed during the wars in ex-Yugoslavia.

Ending War Crimes, Chasing the War Criminals

In 1948 the UN membership had taken another important step forward when it agreed to the Genocide Convention. This was mainly the work of the scruffily dressed, Polish lawyer Raphael Lemkin, who lived, almost penniless, in a cheap New York one room apartment, near the UN building, who persisted year after year in his non-stop lobbying. His moving, inspiring and eventually successful story is lucidly told in Samantha Power’s marvellous book A Problem from Hell – America and the Age of Genocide. The Convention was a remarkable step forward, for the first time outlawing a particular type of war. When the General Assembly vote came 55 countries voted “yes” to the pact. None voted “no”. Lemkin later wrote: The galleries were full and the delegates appeared to have a solemn, radiating look. Most of them had a good smile for me. John Foster Dulles (US secretary of state) told me in a somewhat business-like manner that I had made a great contribution to international law. Robert Schumann, the French minister of foreign affairs, thanked me for my work … The roll call was made. The first to vote was India. After her “yes” there was an endless number of “yeses”. A storm of applause followed ... The world was smiling and approving.

Although enough countries ratified it quite quickly bringing it into force, the US after an initial enthusiasm – it was a principal drafter – withdrew its support, despite the advocacy of the then president Harry Truman. Many in the Senate were against it because in theory it intruded on American sovereignty although it was beyond likelihood that the US would ever commit genocide. Forty years later it eventually did ratify it at the time of the presidency of the conservative Ronald Reagan. It only happened because of a big push, prodded by Senator William Proxmire, by Reagan himself. Still, what did it mean when the US under President Bill Clinton could ignore the evidence of genocide in 2004 in Rwanda when 800,000 Tutsis were butchered in 100 days? Even worse, along with the UK, the US made it impossible for the UN to deploy a significant number of peacemakers. In 1984 the UN agreed to a convention outlawing torture. This was voted into being by most countries in the world including Ronald Reagan’s America and Margaret Thatcher’s Britain, both arch conservative heads of government. Yet only two decades later the CIA, during the presidency of George W. Bush, used torture against people it believed belonged to Al Qaeda, a practice that did not end until Barack Obama was elected president. Although there was vigorous opposition to Bush’s policy, it was barely mentioned, neither in Congress nor the media, that the US was breaking the Anti-Torture Convention. In April 2014 it was learnt 1 that the Senate intelligence committee, which had spent four years investigating the CIA’s use of torture, concluded that the in1 See the Financial Times of 11 April 2014.

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terrogations “did not effectively assist the Agency” and “came with heavy costs”. The Senate’s report went on to say that “the interrogation techniques were far worse than the Agency communicated to policy makers”. It also concluded that the CIA systematically misled the different branches of government. It claimed that the CIA “impeded effective oversight” by the White House, by Congress and its own inspector-general, as well as providing “inaccurate information” to the Justice Department. The CIA officials in charge of interrogation used methods that had not been approved by CIA headquarters and ignored “numerous internal critiques and objections”. Yet Obama decided not to prosecute anyone involved in the torturing nor the top officials who gave them their orders. He believed it would only stir up a hornets’ nest. A bad mistake. Is this not a case the International Criminal Court should take up? In 1947 the UN General Assembly had passed a resolution requesting the International Law Commission to codify international crimes and to establish a more permanent and impartial mechanism for dispensing international justice. A draft statute was produced in 1953 but it was shelved. In the atmosphere of the Cold War such a big step was impossible. It was not until many years later – after the civil wars in ex-Yugoslavia, Rwanda and Sierra Leone – that the UN members awakened from their Rip Van Winkle slumber. In 1993 the UN created the International Criminal Tribunal for the former Yugoslavia, in 1994 the International Criminal Tribunal for Rwanda, in 2000 the Special Court for Sierra Leone, in 2000 the Special Panels for Serious Crimes for East Timor and in 2005 the Extraordinary Chambers in the Courts of Cambodia. (Yet in 1992, only a year before, during the height of the ethnic cleansing in ex-Yugoslavia, there was no public debate about the creation of a war crimes court. I wrote a column in the Los Angeles Times arguing for one. I received only one letter of support from a University of California law professor, saying he had been lobbying for years for the creation of such a court and had got nowhere.) The ex-Yugoslavia court was empowered to exercise jurisdiction over grave breaches of the Geneva Conventions, violations of the laws and customs of war, genocide and crimes against humanity. The Rwanda court was called upon to adjudicate genocide (a first ever), crimes against humanity and the abuse of the Geneva Conventions. The first courts for ex-Yugoslavia and Rwanda got off to a rocky start. Once started UN member states treated them with indifference. The Security Council appeared to treat them more as a nuisance, not a tool. The first president of the ex-Yugoslav Tribunal in an appearance before the Security Council declared: “Our Tribunal is like a giant who has no arms and legs. To walk he needs artificial limbs. These artificial limbs are the state authorities.” The US was asked to provide telephone intercepts and satellite films of fields of unarmed men under Serb supervision about to be shot and buried in mass graves. It took two years for the US to provide them. Lack of money meant the Tribunal staff had little money to visit grave sites and to interview witnesses.

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NATO’s policy was to arrest only those suspects that its forces happened by chance to encounter. But Western reporters could find them lounging in cafes or by visiting the indictees at home. Torture survivors could watch on TV their former assailants at rock concerts sitting among the dignitaries. Amnesty International, Human Rights Watch, the International Helsinki Federation and the Coalition for International Justice published a full list of the indictees, listing their home addresses. During the first 18 months of their deployment, NATO troops did not arrest one suspect. To his credit, British Prime Minister Tony Blair engineered the first arrest in July 1977. British troops snatched a pair of Serb concentration camp guards. From then on the NATO countries started to send a trickle of the indicted to the Tribunal, based in The Hague in the Netherlands. Some suspects turned themselves in. By November 2001 its jail was holding 48 accused. During Clinton’s second term the US stepped up its contributions and provided the Court with more funds than any other country. In Rwanda there was more cooperation. African governments were prompt in arresting suspects who had tried to hide away in nearby countries. Unfortunately the court was plagued by corruption, nepotism and mismanagement. Court proceedings dragged on. Unlike the Cambodian court the Hague Tribunal did almost nothing to educate the public back home. The trials were not broadcast back to Bosnia and the UN press office did not translate its releases into Serbo-Croat until 2000. “Judges allowed innumerable breaks in the proceedings and rarely challenged the relevancy of the counsel’s frequently rambling lines of enquiry”, wrote Samantha Power. (A fault I found watching the Cambodian court’s proceedings in January 2013.) In 2000 the former president of Yugoslavia, Slobodan Milosevic, who presided over its break-up and was charged with personally supervising the atrocities against the Bosnians, died during the trial. But many have been convicted in both the ex-Yugoslav trials and the ones for Rwanda, Sierra Leone, East Timor and Cambodia. *** Quiet, unpublicised, back room work at the UN produced a text in 1994 for the creation of a permanent International Criminal Court. The ad hoc courts gave it the public push it needed. On 17 July 1998 in Rome 120 countries voted to adopt a statute creating an International Criminal Court. It was truly an historic moment in the history of nations. It had taken only five weeks to hammer out a consensus. But many have said, including Amnesty International, that it was “a lowest common denominator court”. Nevertheless, the 175 non-governmental organisations lobbying in Rome helped strengthen parts of the text. The text would have been strengthened further if delegates had not felt it was necessary to accommodate the US. Clinton had been advocating it for

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some time – and had reaffirmed his support during his visit to Rwanda in 1998. But because of the “Lewinsky affair”, when he was accused of having sex with a young White House intern, which resulted in impeachment proceedings in Congress, he lost much of his political clout. Put on the defensive, the Pentagon lobby outmanoeuvred him. The generals did not want see an international court that could have grounds to arrest and punish one of their soldiers, even though in fact the ICC would have no power unless the home nation refused or was incapable of prosecuting the accused. The traditional Washington stance has long been that the US is above international law. However, with the US ratification of both the Genocide and Torture Conventions hopes had been raised. Indeed, in the closing days of his presidency Clinton did sign up, only to have his signature “deleted” by his successor, the militant right-winger George W. Bush. The Bush administration went even further with a campaign of economic threats against member nations unless they renounced their membership. Only later did Bush himself realise how useful the ICC was and quietly helped the Court track down and capture suspects. One Congolese warlord gave himself up to the local US embassy which transported him to detention in The Hague. Since then the Obama administration has been even more active on the ICC’s behalf. But sadly, the “human rights president” Barack Obama decided not to sign the treaty for fear that when it came to ratification by the Senate it would be, in Senator Jesse Helm’s words, “dead on arrival”. Russia, India, China and Israel also have refused to sign. For Israel this was ironical since the Court had in many ways grown out of the Jewish experience of incineration in the concentration camps. During the Rome negotiations the US had successfully re-written the text to limit the Court’s action by insisting that it could only act if the consent of the accused’s state agreed to an arrest and prosecution. The only exception was to be when the UN Security Council, acting under Chapter VII of the Charter, would vote in favour of an arrest and prosecution. The Court’s jurisdiction extends to four offences: genocide, crimes against humanity, war crimes and the crime of aggression. Some words on the crime of aggression. This was not accepted at the time of the original negotiations in 1998, but it was enunciated in the review conference of the ICC 12 years later. It is one of the most important decisions nations have ever made, but it is arguably the most under-reported one. The Statute is worth study: 1.

For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a state, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

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2.

For the purpose of paragraph 1, “act of aggression” means the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another state or part thereof; (b) Bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state; (c) The blockade of the ports or coasts of a state by the armed forces of another state; (d) An attack by the armed forces of a state on the land, sea or air forces, or marine and air fleets of another state; (e) The use of armed forces of one state which are within the territory of another state with the agreement of the receiving state, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a state in allowing its territory, which it has placed at the disposal of another state, to be used by that other state for perpetrating an act of aggression against a third state; (g) The sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein.

So, for example, the US’s and the UK’s war in Iraq would have been illegal, and if they had gone to war when this part of the ICC had been in force their leaders could have been prosecuted, although doubtless they would have used their veto to halt the process. Nevertheless, a non-Security Council member such as Syria could be prosecuted. (In practice it is likely that Russia would veto such a move.) The new article could act as a brake on future wars. For example, if Israel was considering going to war with Iran it would have to be sure that the US

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would come to its defence with a veto. Could this be assured since the US is firmly against such an act? The threat of an indictment could well give the Israeli leadership second thoughts. The Statute was agreed by consensus. No nation voted against it. But ratifications have been slow in coming. The Parliament of the European Union has recognised the jurisdiction of the ICC over the crime of aggression. Some EU members have ratified membership including Germany, Spain and Finland. A good number of non-Western countries have either ratified it or are planning to soon. The Obama administration which is unlikely to seek ratification because of Pentagon and Senate hostility was a cooperative and positive contributor to the debate during the Statute’s writing. The UK, France, China, Israel, Pakistan and India appear to have no plans to ratify it. All of them are nations that do not want to have their military hands tied. While the work of the ICC proceeds with some success in winning convictions, the question is raised whether the ICC and ad hoc courts act as a deterrent to future war crimes. It is impossible to prove a negative. However, it can be said with some certainty that there are far less war crimes being committed than there were one or two decades ago. Syria and the Islamic State movement remain the exceptions, not the rule. In his book All the Missing Souls David Scheffer, the former ambassador-atlarge for war crimes appointed by President Clinton, wrote: The Court’s arrest warrants for the leaders of the merciless Lord’s Resistant Army, based in Uganda, helped drive the LRA into serious negotiations and inspire defections. Patrick Makasi, the former director of operations until his defection, said “In the bush the ICC is always the main discussion. Sometimes they talk about five times a day. We hear that once you are taken to the ICC you are as good as dead”.

US phone intercepts revealed the same worries by Serb commanders during the wars in ex-Yugoslavia, but we have no idea how many commanders deserted because of fear of the ICC. No court in the world can deter crime on its own, whether it be murder, rape or theft. But no one would argue that they do not deter at all. Other means have to be found to help diminish crimes. In the case of war crimes this means much more preventive diplomacy, the use of serious sanctions and resolutions in the UN among other steps. Cumulatively such policies combined with an active ICC will surely have some impact. The number of wars in the world has fallen dramatically in the last 20 years (even though in the last three years they seem to be slowly increasing again). Even more so have the number of deaths from warfare. The work of the ICC will surely help these numbers go down further.

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4

African War Crimes and the Pursuit of International Justice

Part One: Bokassa and the Dead Children

The Emperor Bokassa, president of the Central African Republic, was a wilder creation than could ever have been dreamt up by Evelyn Waugh even in his most satirical moments. A man who cut off the ears of his prisoners, murdered his former finance minister in the privacy of his palace cabinet room, engaged the full facilities of the French diplomatic service in tracking down an illegitimate daughter in Indo-China, conceived while he was a wartime sergeant in the French forces, who would receive the French ambassador in his underwear and would conduct a serious conversation with him in an empty room in the palace, furnished only with a mattress. No novelist could have created such a character. Yet this was only a part of him. According to a Commission of Inquiry consisting of five senior African jurists, sent into the Central African Empire in the wake of revelations published by Amnesty International, “riots in Bangui [the capital city] were suppressed with great cruelty by the security forces and in April 1979 about a hundred children were massacred at the order of Emperor Bokassa who almost certainly participated in the killings.” “Almost certainly”, the report said, “no one will ever know the precise truth of the degree of Bokassa’s bestiality”, a man who considered himself the “father and protector of children”, who had himself crowned emperor with a golden crown and a golden throne specially made in France with French “aid”. Nevertheless, there is no good reason to doubt eye-witness. There were only pieces of an incomplete picture. But no one else had either the facilities or the interest to do it. In the end, not only did Amnesty reveal one of the most horrible events of the last few decades; the disclosure also provoked the French government into sending in paratroopers to depose a tyrant who had become an embarrassment. Amnesty had been watching the Central African Empire for some time. A number of happenings over the years had caused alarm and persuaded Amnesty researchers to give more than passing attention to unusual pieces of gossip or small items of news carried by the wire-services, such as the beating of thieves

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and cutting off of ears, and a report by an Associated Press journalist, Michael Goldsmith, on appalling conditions in a Bangui prison. Amnesty also over the years had received a trickle of letters. But not until 1979 was there enough information to prove a systematic pattern of abuse. Bokassa, whose father was assassinated when he was six and whose mother committed suicide a week later, seized power from his cousin in 1966, systematically eliminating all rivals, including his once-favoured aide, Alexandre Banza, whom he had murdered in 1969. Since 1966, judicial standards in the country had declined fast. There had been many “disappearances” with relatives uninformed of the fate of their loved ones. Imprisonment was harsh, with a high mortality rate among political prisoners – mostly high civilian and military officials suspected of trying to overthrow Bokassa, or ordinary people suspected of trying to organise opposition movements. The Porte Rouge section of Ngaragba prison in Bangui had earned itself a notorious reputation. It contained three cells where political prisoners were herded in almost on top of each other. Food was inadequate, medical aid insufficient, and prisoners were denied any contact with their families. Cruel and inhumane punishments seemed to have become Bokassa’s speciality. He ordered that those who were being held awaiting trial should be severely beaten by the soldiers. Bokassa often joined in himself, hitting prisoners with a big stick. In one beating session three thieves died. The corpses were put on public display in the town. When he was told that Dr. Kurt Waldheim, the UN Secretary-General, had protested, Bokassa, bursting into one of his frequent rages, called him “a pimp, a colonialist and an imperialist”. Bokassa hit the headlines every so often. But by and large the world passed him by. The French government, which kept itself well-informed, kept its information to itself. The press was not greatly interested in this African backwater. Amnesty maintained its watch, almost alone, as it does on dozens of other seemingly unimportant countries. The Amnesty alert began in January 1979. Bokassa had issued an order compelling all students in the empire to wear special uniforms, costing about USD 30 each, way beyond the means of most parents. Besides, the government and its multitude of agencies rarely paid its employees with anything approaching regularity. The students began to protest and then to rampage. In the Bangui suburb of Miskine, sympathetic crowds joined in. Shops were vandalised, including one called “Le Pacifique”, owned by Bokassa’s beautiful wife, Catherine. Bokassa sent the soldiers in. Armed with machine guns, they began shooting indiscriminately. They were met by a bow-and-arrow attack in which maybe as many as a hundred soldiers died. Bokassa asked President Mobuto of Zaire to send in troops to help quell the unrest. An Amnesty International representative in Paris got the first wind of what had been going on from brief press reports. This was enlarged upon when she went to a meeting of the Union National de Etudients Central Africain held in

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Montreuil. Apart from the communist deputy mayor hers was the only white face in the auditorium. She approached the students after the meeting. They were sceptical of Amnesty – with some reason. In recent years Amnesty had not given their part of the world much attention. They told her that their estimates of death were about 400. As more information came out in the news, based on interviews with travellers and businessmen, press estimates also climbed to 400. Although the journalistic reports were thin, Amnesty became concerned. Experience had shown that when demonstrations are put down, arrests are likely. The research department set to work to contact people who had recently been in the country or might know what was going on. They spoke to the relatives of prisoners, Central Africans living abroad, particularly in France, who had contacts in Bangui, and foreigners who had visited the Central African Empire. Their aim was to contact as many independent sources as possible and to cross-check the details in each account. In mid-February, Amnesty was receiving reports suggesting that important heads of schools and colleges had been arrested as well as an unknown number of students and some civil servants from the Ministry of Education. During February and March, Amnesty worked hard to try and get names. It was difficult, as it often is in this kind of situation. Even people living outside the country were frightened that to give a name to Amnesty, which might then publicise it, would result in retribution. The prisoner could be killed and the family persecuted. Iran, Uganda, Ethiopia and Equatorial Guinea are all countries in which Amnesty has recently had a similar problem. Eventually, however, Amnesty was given the names of three prominent headmasters who were in prison. It was felt their reputations were sufficient to give them a measure of protection. By the middle of March Amnesty still only had the names of a handful of prisoners. It knew that there were many more, but it was hard to get hold of reliable information as there was no free press, no foreign reporters based in the country and no normal means of communication. Amnesty’s suspicions were aroused that Bokassa was engaged. Nevertheless, Amnesty sent a cautiously worded telegram to Bokassa on 14 March 1979. Amnesty expressed its concern at reports of detainees held since 1973 and new prisoners since January. They asked Bokassa to grant a general amnesty to all those detained for their beliefs. The cable read: Amnesty International, a movement independent governments and political parties, which intervenes on behalf of prisoners of conscience throughout the world has the honour to communicate its serious concern about the fate of military and civilian detainees, some of whom have been held for several years and a considerable number whom have been detained since the events of January 1979. We ask for special amnesty for people detained for acts of conscience.

Ten days later Bokassa replied. He said that everyone imprisoned had been released on his 58th birthday, a month before. Amnesty International, he said,

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could come to Central Africa to confirm this. Amnesty attempted to see if there was any truth in his reply. Contacts did confirm that there had been prisoners released in early March. Yet there were many cases where families had had no contact with imprisoned relatives. Moreover, this was not the first time that Bokassa had announced an amnesty, only for news to filter out later that political prisoners were still locked up. Amnesty decided to step up its investigation. They learnt that indeed further arrests had taken place. This time it was the parents of the students who had participated in the January demonstrations. Then on 21 April Agence France Presse reported that these parents had been put on trial. According to the dispatch, “[t]he ruling Central Committee had examined the retrograde character of the events that had occurred in the capital and condemned the disorder, hate and subversion organized by students and supported by an occult force”. The report, however, did not say what the events were. About this time, Amnesty learnt of the arrest of the Minister of Information Barthelemy Yangongo and others, accused of distributing leaflets on behalf of an illegal opposition group, La Fronte Patriotique Oubangien. In early May, Amnesty’s Paris office was approached by a number of people who bad stories of events they said occurred between 17 and 20 April relating to the arrest and disappearance of a group of children. The Amnesty representative in Paris admits with some embarrassment that if she had not been away on holiday Amnesty would have started to receive the critical information some days earlier. One important informant was waiting on her doorstep for her to return. This often happens to Amnesty. After the word gets around that Amnesty is working on a case, people who think they have information get in touch. Sometimes they are private individuals who accidentally have run across an event or piece of information. On occasion, they are high officials, ashamed at what their colleagues are up to and seeking to unburden themselves. On 8 and 9 May, Amnesty received information from four sources in Paris, each independent of the other. Some were old and established contacts. As is often the case, there were discrepancies in the information. Some alleged that the children, once arrested, had been taken to the imperial court at Barengo. Some said that all the children had been taken to the central prison Ngaragba. Some said the arrests had taken place in four outlying districts. There were also differences in pin-pointing the cause of the arrests. In London, Amnesty set to work to try and sort out the conflicting stories. In the middle of this they were visited by a new contact, a priest, Joseph Perrin, who had lived in Bangui between 1971 and 1976 and who returned there for a week’s stay just after the killings had taken place. Father Perrin talked to more than 50 people about what had happened and passed on the information in the form of a detailed letter to Amnesty International when he returned to Europe. Father Perrin had a wealth of detail from people who had heard the screams of young voices in the prison – from a family who had five sons taken away and about a boy killed with the pocket-knife he was carrying. He had also talked to

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some children who had been arrested, imprisoned and then released. One of them told him that they had seen 62 dead children. This report seemed to fill out the flesh on the earlier testimony. The situation was serious enough to go public. On 11 May Amnesty sent a telegram to Bokassa expressing its deep concern. It also alerted the International Year of the Child Secretariat in New York. Three days later Amnesty issued a news release which was both direct and circumspect. Amnesty was careful not to describe the context of the incident since they were unsure of it. Nor did they publicise the allegations that Bokassa himself had been personally involved. These were not, in Amnesty’s view, satisfactorily corroborated. Nor did Amnesty say that the children had been taken to the emperor’s court and killed. The details of the transfer from prison to court seemed too murky. For Amnesty, it had been a piece of investigation in the normal line of business. The slow, sometimes arduous sifting of facts. The press release in fact was a model of restraint. Only in paragraph four did the bombshell explode: On April 18th more than 100 children are known to have been taken to Bangui’s central prison where they were held in such crowded conditions that between 12 and 28 of them are now reported to have died from suffocation. Other children are reported to have been stoned by members of the Imperial Guard to punish them for throwing stones at the Emperor’s car. Some have been bayonetted or beaten to death with sharpened sticks and whips.

Amnesty said it had received reliable reports that between 50 and 100 children had been killed in prison. A witness said the bodies of 62 dead children had been buried by government officers during the night of 18 April alone. To Amnesty’s surprise, the press leapt on the story. Bokassa, the child-murderer, was page one news. The French foreign minister, Jean Francois-Poncet, was more cautious. He talked of conflicting reports, and his colleague, the minister of cooperation, referred to what he called “pseudo-events”. Information now began to pour into Amnesty in Paris and London: reports from foreigners who had been there, first-hand testimonies by people who had been at the prison. By June Amnesty had built up an authoritative picture that nobody has credibly disputed. The trouble had begun in January 1979 with the beating-up by some schoolchildren of two security guards sent to spy on them, following their protests about wearing school uniforms. The repression had been more severe than realised at the time. Between 400 and 500 people had been killed. The arrests of the schoolchildren began three months later on the morning of 18 April. Most of those arrested were boys between the ages of 12 and 16, but some of the children were as young as eight, nine, ten and 11. Any who attempted to resist arrest or shouted anti-government slogans were beaten up and in some cases killed. The children were thrown into the back of trucks and guards began hurling

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stones at them. Several more died. As many as 30 children were crammed into each cell, which was only two square metres and had tiny windows letting in only whiffs of air. The heat was overpowering. There was no food and no water. By next morning 22 of the children in one cell were dead. According to a survivor of this cell, more children were pushed into the cell and a further 11 died. Other children were tortured and killed. Some of the survivors claimed that they saw Emperor Bokassa inside the prison personally directing and participating in the killings. Another survivor described how a group of 20 boys was taken outside Bangui and killed when stones were dumped on top of them. Amazingly, 40 or so survivors were let out of the prison on 20 and 21 April. It is they who gave much of the information that Amnesty’s investigation has been built on. At first the French government was loath to recognise the Amnesty charge. Then, as the accusations gathered strength, it sought to defuse them. The chosen vehicle for this was the meeting in late May in Rwanda of the Francophone African heads of state including President Giscard d’Estaing. They decided to send a team of five respected African jurists, from the Ivory Coast, Liberia, Rwanda, Senegal and Togo, to investigate the atrocities. It would have been difficult, given the unanimity of the Francophone states, for Bokassa to have refused their request to investigate. It was, however, the first time the African nations had done anything of this kind. And it set a precedent which African nations, led by Nigeria and Senegal, have built on, seeking to establish an African Human Rights Commission, with the power to investigate and criticise. The Commission of Inquiry was a very successful first effort. It managed to interview Bokassa himself as well as senior ministers. The Commission, besides confirming Amnesty’s principal findings, also describes a number of events which Amnesty had not publicised: how local Red Cross officials were fired on by soldiers in January; reports on the personal participation in the killings by Bokassa and also by General Maimokola and Colonel Inga, senior members of the Central African Empire’s armed forces. It also explains how the dead bodies were disposed of. Some were taken to the cemetery, others to military camps and others thrown into the Ubangi River which flows past Ngaragba prison. The report was made public in August. By that time several of those who had given evidence to the Commission had been executed or arrested. In September the French sent in their paratroopers to overthrow Bokassa. For a long time France’s close friend and ally Bokassa had finally become an impossible embarrassment. No one criticised the invasion, not even the most anti-French of the African countries. There was, it seems, a crude element of selfinterest in the French decision to go into the Central African Republic. President Giscard d’Estaing, when he had been minister of finance, had formed a close personal link with Bokassa. The French journal Le Canard Enchaine revealed in its issue of 10 October 1979 that it had documents proving that Giscard had accepted a present of diamonds from Bokassa, to the value of USD 250,000.

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Giscard did not deny it at first. His press statement was an ambiguous declaration that amounted in the eyes of some observers to a confession. It said that it was usual for presents to be exchanged when heads of state visited foreign countries. Later, just before the 1981 May election, Giscard announced that he had sold the diamonds and that they were worth much less than had been said, and he sent the proceeds to a Central African Republic charity. The scandal gave rise to a theory as French scandals always do – that Giscard sent in the paratroopers not only to depose Bokassa, but to hijack his papers and correspondence before Bokassa could blackmail (anymore?) Giscard. While the French paratroopers were sorting out Bokassa’s soldiers, other troops were removing Bokassa’s archives to the French embassy. This was witnessed by a number of French correspondents. Whatever the truth in these allegations, which were to haunt Giscard right through his re-election campaign in the spring of 1981 and contributed to his defeat, there is no gainsaying the fact that Giscard’s relationship with Bokassa had been unusually close and Bokassa was adept, politically at least, at exploiting it. Giscard loved to hunt in Bokassa’s private hunting area, a large tract of jungle in the east of the country, accessible only by private plane. It was Giscard’s chasse gardée. Accompanied by Bokassa, he could shoot elephants, giraffes, and the rare white rhino. (Bokassa claimed, in an interview in the Washington Post just before the French election, that he gave Giscard a 3000 square mile hunting preserve.) Giscard’s family also had close connections with the country. His cousin, Jacques Giscard d’Estaing, represented French interests in Bokassa’s attempt to get uranium mining started. Another cousin, Francois, had banking interests in the country. Both have been accused by Le Canard Enchaîné of having received diamonds. Giscard made things worse by choosing Central Africa for his first presidential visit to Africa, by being the first President to congratulate Bokassa after his crowning, and calling his host during a visit “a cherished relative”, an endearment which Bokassa used to love repeating. Take this “imperial press release” for example: “On October 2nd the head of the French State, M. Valery Giscard d’Estaing, left Paris to visit his relative in the Chateau de Villemorant (one of the emperor’s four estates in France). The Central African monarch and President Giscard d’Estaing met at a family lunch. Gifts of Central African art were given to the French head of state by His Majesty Jean Bokassa, thereby combining business with pleasure.” Peculiar as Giscard’s personal relationship was, it was in fact rooted in a longstanding foreign policy which had been laid down by General Charles de Gaulle. The thinking was simple, and simplistic. Bokassa’s strength in French eyes was that he was staunch anti-communist. In the context of mid-African geopolitics, this was an important consideration, particularly when African support for the West appeared rather precarious. Zaire although also pro-West, has long been subject to unpredictable upheavals. Congo-

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Brazzaville had been hostile to France. Chad was continuously in a turbulent state (and in early 1981 effectively taken over by Libya). Outside powers have long shown an interest in the Central African state. The Soviet Union has a large embassy. Bokassa enjoyed teasing France and upping the French economic commitment by doing deals with the Soviets. With Libya, too, he had played fast and loose. In 1976, when Colonel Gaddafi visited Bangui, Bokassa announced he had become Muslim. Again, a reminder to France of his real worth. De Gaulle began the serious courting of Bokassa. Bokassa was given a grandiose official visit to Paris, complete with a wreath laying ceremony at the Tomb of the Unknown Warrior, followed by a triumphal drive down the Champs-Elysees, a gala night at a theatre and a ceremonial dinner at de Gaulle’s residence. Gaulle’s dinner speech was sycophantic. He lauded the Central African government’s achievements and added: “Mr President, I insist on saying that this is the case more than ever and that your personality has contributed much of it.” Eight weeks after his visit to France, Bokassa liquidated his former finance minister, Alexandre Banza, in circumstances according to Le Monde “so revolting that it still makes one’s flesh creep.” The Le Monde report continued: Two versions concerning the end circumstances of his death differ only in minor detail. Did Bokassa tie him to a pillar before personal carving him with a knife that he had previously used for stirring his coffee in the gold-and-midnight blue Sevres coffee set or was the murder committed on the cabinet table with the help of other persons? Later that afternoon soldiers dragged a still identifiable corpse with the spinal column smashed from barrack to barrack to serve as an example.

The French press did its best to highlight these allegations, and Bokassa was furious, convinced that French diplomats had leaked the story. He slapped France across the face by nationalising the diamond mining company. A little later, France’s foreign minister, Maurice Schumann, attempting to placate Bokassa, sent him a carefully worded message: “You have understood quite well that there is nothing in common between what some more or less well-informed journalist thinks he can print and the brotherly respect in which the French government has always held the Central African Republic and its head.” Bokassa had been sentenced to death in absentia in December 1980 for the murder of numerous political rivals. Amazingly he decided to return from his exile in France. Bokassa was immediately arrested by the Central African authorities as soon as he stepped off the plane and was tried for 14 different charges, including treason, murder, cannibalism, illegal use of property, assault and battery and embezzlement. The trial began on 15 December 1986. Bokassa hired two French lawyers, who faced a panel modelled on the French legal system. The trial by jury conducted in a sober, legal manner of a

Ending War Crimes, Chasing the War Criminals

former head of state was unprecedented in the history of post-colonial Africa where former dictators had previously been tried and executed following show trials. There were live broadcasts by Radio Bangui and TV all over the country, as well as neighbouring French-speaking African countries. The prosecutor was Gabriel-Faustin M’Boudou, the chief prosecutor of the Central African Republic. Testimony came from 27 teenagers who were the only survivors of the 180 children arrested in April 1979. Several of them testified that on their first night in jail, Bokassa visited the prison and screamed at the children for their insolence. He was said to have ordered the prison guards to club the children to death, and Bokassa indeed participated, smashing the skulls of at least five children with his ebony walking stick. Bokassa denied all the charges against him. He attempted to shift the blame away from himself to wayward members of his former cabinet and to the army for any misdeeds that might have occurred during his reign as both president and emperor. Testifying in his own defence, Bokassa stated: “I’m not a saint. I’m just a man like everyone else.” At one point Bokassa stood up and raged at Chief Prosecutor M’Boudou: “The aggravating thing about all this is that it’s all about Bokassa, Bokassa, Bokassa! I have enough crimes levelled against me without you blaming me for all the murders of the last 21 years!” Former President Dacko was called to the witness stand to testify that he had seen photographs of butchered bodies hanging in the dark cold-storage rooms of Bokassa’s palace immediately after the 1979 coup. Bokassa’s former security chief testified that he had cooked human flesh stored in the walk-in freezers and served it to Bokassa on occasion. On 12 June 1987, Bokassa was found guilty of all but the cannibalism charges. The court acknowledged that many individual allegations of murder had been levelled at Bokassa but found that the evidence was unimpeachable in only about 20 cases. Bokassa was said to have wept silently as Judge Franck sentenced him to death. His lawyers appealed the verdict and asked for a retrial on the grounds that the Central African Republic’s Constitution allowed a former head of state to be charged only with treason. The CAR Supreme Court rejected the appeal. On 29 February 1988, President Kolingba demonstrated his opposition to capital punishment by voiding the death penalty against Bokassa and commuted his sentence to life in prison in solitary confinement. Kolingba declared a general amnesty for all prisoners as one of his final acts as president, and Bokassa was released on 1 August 1993. Bokassa remained in the CAR for the rest of his life. In 1996, as his health declined, he proclaimed himself the 13th Apostle and claimed to have secret meetings with the pope. Bokassa died of a heart attack on 3 November 1996 in Bangui, at the age of 75. He had 17 wives and a reported 50 children.

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Part Two: The ICC and the African Leaders, Hissene Habre, Bosco Ntaganda and Uhuru Kenyatta

In November 1990 the tyrant of Chad, Hissene Habre, was overthrown by his former chief military advisor, Idriss Deby, who was funded and supplied by Libya’s president, Muammar Gaddafi. The Americans made a last minute effort to save Habre, but failed. He had long been an important, if secret ally. He was, according to Michael Bronner, writing in Foreign Policy in January 2014: The centrepiece of the Reagan Administration’s (Reagan had given him the honour of inviting him to the White House) covert attempt to undermine Gaddafi who had become an increasing threat and embarrassment to the US with his support for international terrorism. Despite persistent and increasingly alarming reports of extra-judicial executions, disappearances and prison abuse carried out by Habre’s regime, the CIA and the State Department’s Africa Bureau headed by Chester Crocker, had secretly armed Habre and trained his security service in exchange for the dictator’s commitment to ruthlessly pound the Libyan troops then occupying northern Chad, bordering Libya. If Habre were overthrown, that near decadelong effort would be undone.

Habre fled with a large entourage to Senegal, driving his Mercedes up the ramp into a Hercules heavy-lifting aeroplane. Deby captured the capital, N’Djamena. Political prisoners walked free, “emaciated, scarred by torture and filled with tales of executions, mass graves and unspeakable abuse … One of them men who staggered outside that morning was Souleymane Guengueng. He was a former accountant, nearly blind and barely alive after almost two and a half years of imprisonment and torture. In 2013 he would prove to be Habre’s undoing.” Although Senegal prided itself on its human rights record – later it was to become the first country in the world to ratify the treaty establishing the ICC – it inexcusably gave refugee to Habre. For years he lived comfortably in Dakar. But then the earth moved. In London in October 1998 the British police made a surprise arrest of the ex-dictator of Chile, General Augusto Pinochet, who was undergoing back surgery at a London clinic. He was accused of war crimes. The Pinochet arrest marked the first time that a court anywhere had decided that sovereign immunity must not be allowed to become sovereign impunity. This was before the creation of the ICC. Britain’s highest court, the House of Lords, based their legal ruling on the UN Convention Against Torture which had been ratified by Margaret Thatcher’s Britain and Ronald Reagan’s America. The Pinochet arrest marked the first time European judges had applied the principle of “universal jurisdiction”. This enables a court to try a person accused

Ending War Crimes, Chasing the War Criminals

of the most serious violations of international law regardless of the defendant’s nationality or where the crimes were committed. A Pandora’s box had been opened in London. Who next? Hugh Brody, head of the New York-based Human Rights Watch, decided it should be Habre. Brody said of Senegal: “It’s a country that always considered itself to be in the avantgarde of international law and human rights. We figured that if any country is going to be a candidate to take an international justice case, Senegal would be that country.” Brody was introduced in Dakar to Delphine Djiraibe, one of Chad’s first female lawyers and the co-founder of a human rights group. She warned him how difficult it would be as Habre’s loyalists were well ensconced in the police force. Witnesses would fear talking. A student law team, one man and one woman, chosen by Human Rights Watch flew to Dakar to interview Souleymane Guengueng. He told them he had been waiting for this moment. Guengueng while in prison had compiled 792 witness accounts that he had coaxed out of fellow prison survivors. The students hid copies of the documents in the laundry room of the monastery where they were staying in Dakar. One of them then took the risk of putting them in his bag and going to the airport to catch a plane to the US. He feared a search, but he got on to the plane untouched. The next step was for Brody and his colleagues in January 2000 to file a case against Habre. Brody said later: “When we began we didn’t know who was who – who would give information back to Habre. We were really afraid he would try to escape from Senegal.” Fortunately they had Guengueng’s files which were the documentary core of the case. There were also six other survivors – representing Chad’s complex Muslim-Christian, north-south and tribal divisions, and specifically the ethnic group targeted by Habre. They filed the case on 26 January. Two days later the senior investigating judge summoned the Chadians to tell their stories in a closed-door session. The case made headlines across Africa. Four days later the judge indicted Habre and placed him under house arrest. The New York Times editorialised: “An African Pinochet … a welcome new chapter in the evolution of international law.” But the drama still had many acts to go. On 4 July the judge was removed from the case. Next the case was dropped by a decision of the appeals court and then, the following year, by the country’s top court where it was ruled that Senegal did not have jurisdiction over crimes committed by Habre in another country. Brody went into high gear with his many journalistic contacts to ask them to write stories that would pressure President Abdoulaye Wade to live up to the commitments made under the UN Convention Against Torture. Brody also helped Chadian victims who had been given refuge in Belgian to file a criminal complaint under the country’s law of universal jurisdiction. In 2009, after Senegal had repeatedly failed to respond to act on an extradition request, Belgium took the case to the World Court, the International Court

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of Justice. It sought an order for Senegal to agree to the extradition of Habre. In March 2012, the court convened. But days later Senegal elected a new president, Macky Sall. He announced that he was committed to the rule of law and Habre would be tried in Senegal. “We didn’t want to go back and forth beating about the bush for years like the last administration”, he later told a journalist. Senegal’s then justice minister (now prime minister) Aminata Toure told Bronner: “We have to walk the talk.” Then on 20 July 2012 the World Court announced a unanimous decision ordering Senegal to “without further delay, submit the case of Mr Hissene Habre to its competent authorities for the purpose of prosecution if it does not extradite him”. On the morning of 30 June 2013 Senegalese police arrested Habre at his house in Dakar where he had lived in gilded exile for 22 years. He was charged with crimes against humanity, torture and war crimes. The trial began in the summer of 2015 and ended in late May, 2016. The Obama administration publicly welcomed the trial. The investigating judges conducted more than a thousand interviews, visited mass graves accompanied by forensic archaeologists and inspected a farm in southern Chad where Habre’s forces are alleged to have massacred hundreds of rebel soldiers as they attempted to surrender. Brody observed to Bronner: “This has the potential to be the transformative moment for African justice. A televised trial of an African dictator in which African victims are bringing an African dictator to justice has the potential to capture people’s imagination.” In the event Habre was convicted for ordering torture, rape and execution of thousands of his opponents. It was the first time that a former head of state has been found guilty of rape. It was also the first time that a former head of state has been prosecuted for human rights abuses in a country other than his own, and where until recently he had enjoyed the protection of his hosts. The conviction is also significant as it required the intervention of courts across several jurisdictions. It also required the 54-member Africa Union to mandate Senegal’s prosecutors and judges to proceed with the case. As the Financial Times commentated, “[i]t allowed the African Union to reclaim some of the moral high ground. It also provides a fresh approach to reconciling the often conflicting demands of international law, regional politics and national sovereignty that could prove helpful elsewhere.” *** Bosco Ntaganda was the military chief of staff of the National Congress for the Defense of the People, an armed militia group operating in the North Kivu province of the Democratic Republic of the Congo (DRC), close to the border with Rwanda. He is a former member of the Rwandan Patriotic Army, manned by the minority tribe of Rwanda, the Tutsis, that successfully fought in 1994 against the Hutu forces that a few months earlier had perpetuated the great Rwandan genocide. Later he

Ending War Crimes, Chasing the War Criminals

was the Deputy Chief of the General Staff of the Patriotic Forces for the Liberation of Congo. He is also known as the “Terminator”, which indeed he was. (A special UN criminal court for Rwanda was set up in Arusha, Tanzania, to deal with the Rwandan genocide. It is reckoned that about 800,000 people, mainly Tutsi people, were killed by the majority Hutus in various massacres in 1994. Samantha Power described it in her book A Problem from Hell as “[t]he fastest, most efficient killing spree of the twentieth century”. The court has completed 71 cases since it was set up by a Security Council resolution in November 1994 to try the ringleaders. It has now closed its doors except for appeals. Ten of the accused were acquitted and 32 have been convicted and are now serving long sentences.) Until March of 2013, when Ntaganda surrendered, he was wanted by the International Criminal Court (the supervisory authority over the Arusha court). Immediately prior to this he had been leading an armed mutiny in North Kivu as the head of the rebel group March 23 Movement (The M23) fighting the Congolese government. He voluntarily handed himself over to the US embassy in Rwanda, asking to be transferred to the ICC. A few days later he was taken into custody by the ICC. No one seems to know exactly why Ntaganda turned himself in. It is a strange, unprecedented action for a warlord. Speculation suggests that he was either pressured to do so by Rwanda or feared more infighting within M23 and confronting its military leader Sultani Makenga who had recently forced Ntaganda’s forces to flee the DRC into Rwanda. Though Rwanda was not a signatory to the Rome Statute the media speculated it felt forced to turn him over to the ICC. (The Rwandan government had been put on to the defensive when a UN investigation showed it had been supporting M23.) The US had also listed him in its War Crimes Rewards Program. He made his first appearance before the ICC on 26 March. Ntaganda denied his guilt. Presumably more clarity will be shed on his decision when he comes to trial in The Hague. Altogether there are indictments pending of four other Congolese. *** Black African countries feel they are being picked on. At an African Union meeting in October 2013, there was a move to table a resolution that would have led to African Union countries pulling out of the ICC. Fortunately it did not receive enough support. After all, African countries pushed hard for the ICC to be established and African governments themselves – Uganda, Central African Republic, Mali, Sierra Leone and Rwanda – have referred a good number of cases to it. (The Republic of Congo prosecuted its own cases but using ICC guidelines.) Moreover, the chief prosecutor of the Court, Fatou Bensouda, is an African, from Gambia. Five of the 17 judges of the Court are African. Nevertheless, in October 2016 South Africa, Burundi and Gambia announced they were pulling out. Viewed in the overall perspective since the ex-Yugoslavia court was estab-

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lished, citizens from a variety of nations have been prosecuted: Serbians, Croatians and Cambodians. If he had lived Muammar Gaddafi would have been. His son Saif al-Islam is now wanted by the ICC but the Libyan government says it will try him at home – which is impossible in the chaotic state of the country. Several other countries are suspected of harbouring war criminals, and ICC prosecutors are presently prosecuting or investigating war crimes in Georgia, Colombia, Honduras, North Korea, Afghanistan and Iraq where allegations against British soldiers are being examined – with the co-operation of the British government. The office of the Court’s prosecutor late last year released a report which for the first time explicitly names US forces as potential culprits because of the alleged use of torture. Because the American soldiers were based in Afghanistan which is an ICC member, the ICC has broad jurisdication over crimes committed by all combatants on Afghan soil. It is only a matter of time before the ICC brings charges in Syria. Palestine, which joined the Court at the end of 2014, has also made it clear it will refer Israel to the Court for crimes committed on what it regards as its soil. Two countries were referred to the ICC by the UN Security Council – Sudan and Libya. North Korea was referred in late 2014 by the UN’s General Assembly. (Normally a country has to be a ratified member of the ICC before its nationals can be prosecuted – these three are not. However, if the Security Council refers a case there is nothing they can do halt their prosecution.) *** Two heads of state have been indicted by the ICC. One is Omar al-Basher of Sudan and the other is President Uhuru Kenyatta and the Vice-President William Ruto of Kenya. Kenyatta and Ruto were charged with crimes against humanity in the elections of six years ago. It is alleged they were responsible for armed gangs who terrorised opposition groupings, leading to a large number of killings. On 15 December 2010, Uhuru Kenyatta was named as a suspect of crimes against humanity by the International Criminal Court Prosecutor Luis Moreno Ocampo, for planning and funding violence in Naivasha and Nakuru. This was in relation to the violence that followed the national elections in Kenya of December 2007. He was accused of organising a Kikuyu politico-religious group, the Mungiki, active in the post-election violence, which is said to have claimed about 1,300 lives and displaced 50,000 people. On 8 March 2011 he was indicted after being summoned to appear before the ICC pre-trial chamber. He was crossexamined by Oreno Campo and denied any links with the outlawed Mungiki sect. He said Kenya’s then president, Raila Odinga, should take political responsibility for the acts of violence and killings. Kenyatta told the three judges that “by telling his supporters election results were being rigged, Odinga, his own party leader, fanned tensions and then failed to use his influence to quell the violence that followed the announcement of the ballot’s results”.

Ending War Crimes, Chasing the War Criminals

In late 2015 Kenyatta was acquitted for lack of evidence. The ICC prosecutors made it clear that they believed witnesses had been intimidated and the Kenyan government had done everything it could to hide evidence including mobile phone transcripts. On 5 April 2016 Ruto’s charges were vacated. The case was over. The two judges who formed the majority of the three-judge panel agreed that the prosecution had failed to show sufficient evidence to require the defendants to mount a case. One judge would have acquitted the defendants, while the other would have declared a mistrial because of the “serious tainting of the trial process by way of witness interference and political intimidation of witnesses”. Given witness interference, however, they both agreed to vacate the charges to leave open the possibility that the ICC prosecutor could bring charges again. The dissenting judge would have allowed the case to continue. “Sadly, this case will be remembered for an apparent campaign to corrupt witnesses”, said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. A previous ICC ruling had suggested that there had been systematic efforts to corrupt witnesses, including through bribery. According to the ICC prosecution, at least 16 of its original 42 witnesses withdrew, most citing threats, intimidation or fear of reprisals. The Kenyatta administration pursued an intense campaign to undermine the ICC, lobbying the African Union and other regional groups, the United Nations Security Council, and the ICC Assembly of States Parties. Kenya’s leaders failed to prevent and even encouraged hostility toward human rights activists pushing for justice for the post-election violence. The government, for example, did not address hate messages circulated online against activists, even though the identities of some of those behind the blogs were known to authorities. ICC judges are still to decide whether Kenya breached its obligations as an ICC member country by withholding Kenyatta’s financial and other records in the case against him. Even with the closure of the Ruto case, pending any appeal, the ICC’s jurisdiction regarding the post-election violence will remain in place. The absence of convictions before the ICC continues a cycle of impunity in Kenya. Those responsible for political violence in Kenya in 1992 and 1997 escaped justice, and Kenyan authorities broke their promises to hold to account in national trials those responsible for the 2007–2008 post-election violence. Kenyan security forces continue to be implicated in extrajudicial killings, torture, disappearances and arbitrary detention. Impunity remains a significant risk factor for future election-related violence, Human Rights Watch said. (The next national elections are expected in 2017.) “The Kenyan government set out to undermine the ICC while it turned its back on its responsibilities to provide justice and to stop threats against witnesses and human rights defenders”, Evenson said. “The victims who have already suffered so much may well now end up without justice or the help they need.”

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A total of 954 victims were registered to participate in the ICC case against Ruto and Sang, while 839 victims participated in the ICC case against Kenyatta. The ICC should draw lessons from its work in Kenya. The court appears to have been unprepared to deal adequately with witness protection needs arising out of the Kenya situation. Well overdue, the ICC registry is restructuring witness protection mechanisms. The ICC prosecution reported that the challenges it encountered in its Kenya investigations have prompted strategy changes. “The ICC was set up to try just these kinds of cases, but it faces many of the same obstacles national investigations confront in cracking entrenched impunity, especially when politically powerful people are involved,” Evenson said. “Stronger investigations, stepped-up witness protection programs, and more consistent international support are the key to doing better for other victims.” *** Kenya has a long history of political violence and the abuse of human rights, first under the British, the colonial ruler, and later under the post-independence African governments. In the 1950s a violent rebellion against British rule, the Mau Mau, was met by harsh resistance. According to the Kenyan Human Rights Commission 90,000 Kenyans were executed, tortured or maimed. 160,000 were detained in appalling conditions which some called “concentration camps”. It took until June 2013 for the British Conservative government to admit what its predecessors had not done. The campaign to win this acknowledgement had gone on for decades, finally ending up, against British government opposition, in the High Court. An out-of-court settlement was agreed to after legal manoeuvres by the UK government had been rebuffed by the Court. The Foreign Secretary William Hague said that the “government recognises that Kenyans were subject to torture and other forms of ill-treatment in the hands of the colonial administration. The British government sincerely regrets that these abuses took place and that they marred Kenya’s progress towards independence.” Hague said that 5,228 victims would receive compensation, totalling GBP 20 million, which amounts to GBP 3,000 per victim. It only applies to living survivors of the abuses that took place. Hague also announced plans to support the construction of a permanent memorial to the victims in Nairobi, the Kenyan capital. *** Ironically but tragically post-colonial governments have not behaved that much better. In May 2013 the Kenyan Truth, Justice and Reconciliation Commission, charged with investigating the election violence of 2007, condemned Kenyatta and Ruto for their role. But it also investigated violence right back to the time of the country’s first black government – that of Kenyatta’s father, Jomo Kenyatta, publishing substantial evidence linking his government to appalling human rights abuses.

Ending War Crimes, Chasing the War Criminals

5

Western War Criminals – McNamara, Kissinger, Bush and Blair

Robert McNamara, who was President John F. Kennedy’s secretary of defence and, after his assassination, President Lyndon Johnson’s, described himself later in life as a “war criminal”. This came after years of mea culpas when he denounced both himself and the war in Vietnam that he had helped initiate. It was he who invented the term “body count” as a measuring rod of how well US forces were doing in eliminating the Vietcong and the North Vietnamese. For him helicopter gunships flaming out napalm that set alight everything in its path – villages, men, women and children – were de rigueur, a necessary tool in the fight to hold back communism. If South Vietnam fell so, like dominoes, would one Southeast Asian country after another. A ridiculous assumption as time showed. The doubts came to him whilst he was still secretary. He saw that US policy was built on an illusion, that he and his fellow policy makers were deluded. The US could never win, and the cost in human terms was outrageously high. His son, an anti-war activist, got at his conscience. Finally an act of self-immolation by a protester outside his office managed to get under his thick, amoral skin. He resigned with no explanation and as a reward for his going quietly Johnson made him president of the World Bank. He satiated himself in the task of turning the massive resources of the Bank in the direction of the poorest. He told a confidante, the economist and writer Barbara Ward, that “he bled inside for Vietnam”. She passed this on to me, but in a postcard she sent me said she was cross that had I used her words, based on a personal and confidential conversation with McNamara, in my foreign affairs column in the International Herald Tribune. This was the first indication available to newspaper readers that he regretted what he had done. He said nothing in public. Only after his term of office at the Bank ended did he turn again to the unfinished business of the Vietnam War. He went to thoughtful seminars with historians. He opened up discussions with the victorious Vietnamese so that their former political and military high command could sit down with their American counterparts and talk frankly.

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At the same time he campaigned ardently against the possession of nuclear weapons whose possession in large numbers he had so valued whilst secretary of defence. Some said he had effectively become a peacenik. Then came his bombshell when he described himself as a war criminal – not just because of Vietnam but also, he said, for his time as a young strategic planner during World War 2 when he helped formulate the need for the use of nuclear weapons against Japan. What would have happened if the International Criminal Court had existed and the US had become a ratified party to it? Would a sinner who so publicly denounced himself and worked so hard to rid the world of war been arrested and tried? Perhaps he would have wanted it. Towards the end of his life he became so determined to do everything within his power to redeem his earlier mistakes that to become a public martyr in a court where he would have a platform to speak and be heard like in no other place might well have appealed to his deep sense of humility, helping redeem a life in which he had spent a good part of it in two dreadful acts of destruction. *** Henry Kissinger was a totally different kettle of fish. First, read my chapter on Pinochet that tells the story of how Kissinger helped engineer a coup d’état in democratic Chile that led to a great deal of torture and suffering. Second, turn to the war in Vietnam, Cambodia and Laos, America’s biggest war since World War 2 that ended in an ignominious US retreat and defeat after the country and its people had been ravaged beyond description. Johnson, exhausted by the Vietnam War and the divisions it produced at home, decided not to run again. The right-wing hawk Richard Nixon won the election. He chose Kissinger as his national security advisor. Later Kissinger added the portfolio of secretary of state. Nixon had campaigned on the promise that he could end the war. In fact once in power he and Kissinger decided that the way to end the war was to win it. Thus they unleashed one bombing campaign after another, using quantities of bombs that would have made even McNamara blanch when he was in office – far more than were used in World War 2. This went on until right into Nixon’s second term. Kissinger led the US team attending the long drawn out peace negotiations and in the end the White House settled for terms that could have been reached years before. There are many scholars, well-informed journalists and diplomats who argue that Nixon in 1968 privately assured – an illegal move in US law – their ally, the South Vietnamese, that if victorious in the election he would give them a better deal than the Democrats’ candidate Hubert Humphrey would give. All that South Vietnam had to do to tip the electoral scales in Nixon’s favour was to withdraw from the peace talks. By doing this they undercut Humphrey’s “peace plank”. Kissinger himself was implicated as the source of this information as he was then working for Johnson but at the same time feeding information to Nixon on what the Democrats’ war strategy was.

Ending War Crimes, Chasing the War Criminals

In January 1971 General Telford Taylor, who had been the chief prosecutor at the Nuremberg trials, said that if the standards of Nuremberg were applied evenly and applied to the American statesmen and bureaucrats who designed the Vietnam War, “then there would be a very strong possibility that they would come to the same end” as the Nazi (and Japanese) leaders. As Christopher Hitchens wrote in his book The Trial of Henry Kissinger, “[i]t is not every day that a senior American soldier and jurist delivers the opinion that a large proportion of his country’s political class should probably be hooded and blindfolded and dropped through a trap door at the end of a rope”. There were many causes for alarm that war crimes were being committed. Melvin Laird who was secretary of defence during the first Nixon administration, was queasy enough about the early bombings of Cambodia, and dubious enough about the legality or prudence of the intervention, to send a memo to the Joint Chiefs of Staff asking: “Are steps being taken, on a continuing basis, to minimize the risk of striking Cambodian peoples and structures. If so, what are the steps? Are we reasonable sure such steps are being effective?” There is no record of Henry Kissinger who called the shots ever seeking such assurances. Indeed in his memoirs he shows a degree of disgust for Laird. Nixon’s top general in Vietnam, Maxwell Taylor, wrote later that the practice of air strikes against hamlets in Cambodia suspected of harbouring Vietnamese guerrillas were “fragrant violations” of the Geneva Convention on Civilian Protection which prohibits “collective penalties” and “reprisals against protected persons”. What happened was bad enough but what Kissinger sometimes considered doing was beyond comprehension, for example he contemplated using nuclear weapons to obliterate the pass through which ran the railway link from North Vietnam to China. Nixon and Kissinger not only extended the war into Cambodia, they also took it into Laos. It has been estimated that as many as 350,000 civilians in Laos and 600,000 in Cambodia lost their lives. (These are not the highest estimates.) Figures for the wounded and refugees are several multiples of that. In addition, the widespread use of toxic chemical defoliants (now banned by the US military) created a massive health crisis which fell most heavily on children, nursing mothers, the aged and infirm. Even today the residue of these chemicals is claiming victims. But all that pales beside what the US did in Vietnam in its hopeless pursuit of victory against a stubborn, resilient people who had more right than wrong on their side. Kissinger’s 90th birthday was celebrated in a glittering affair, attended by Bill and Hillary Clinton, John Kerry (now Obama’s secretary of state who as a young man led protests against the Vietnam War), James Baker (George W.H. Bush’s secretary of state), John McCain (presidential race opponent of Obama), Condoleezza Rice (George W. Bush’s secretary of state), George Shultz (Ronald Reagan’s secretary of state), Susan Rice (now Obama’s national security advisor), Tina Brown and Harold Evans (British high-flying journalists). “The bullets that would fell a lesser man appear to simply bounce off him and he remains courted

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by business, politicians, journalists and society hostesses whose presence, they believe, will add yeast, or rather a frisson – the authentic touch of raw and unapologetic power – to any occasion you care to name”, wrote Hitchens. *** The crime of aggression (planning, preparation, initiation or waging of a war of aggression) was described by the Nuremberg Tribunal as “the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole”. President George W. Bush and British Prime Minister Tony Blair have been accused by many as war criminals for first starting the war against Iraq and, second, for not watching carefully enough to make sure that war crimes carried out by individual soldiers were not covered up and for the torture that Bush initiated and Blair appeared to tolerate. Did Blair lie over the reason for going to war with Iraq – the supposed stockpile of weapons of mass destruction that Iraq possessed? It depends how you define lie. If you define lie as saying this cat is black when in fact it is white he did not on the big issues. But what he did do was to give the impression the cat was assuredly white when in fact it was a sort of greyish white. As far as the public could tell from what he told them the intelligence services did seem to have the goods on Saddam Hussein’s weapons of mass destruction. But as the later independent reports made by a distinguished judge and former civil servant have made clear, the caveats were left out and the presentation was polished by Downing Street. We in the public did not have the pre-polished version but Blair did and he must have known in his mind, if not his heart, he was taking a gamble with the evidence. Why he was not prepared to persuade George Bush to wait a few more weeks until the evidence that Hans Blix, the chief UN arms inspector, was in the midst of collecting on the ground inside Iraq, was available was gravely irresponsible. Moreover, sanctions had Saddam boxed in. He was, as was obvious to many outside the White House and Downing Street, able to harm no one outside his country. The UN policing and inspecting, imposed after the first Gulf War, had led to ridding Iraq of all the weapons of mass destruction. The war itself had effectively wiped out Saddam’s air force and navy and broken the back of his army. Evidence has come to light that Bush, with Blair’s knowledge, had given the green light for going to war long before Blix got to work. Blair covered this up. Yet the word “lie” cannot quite be used, although it was pretty near it. The Conservative Party, then in opposition, banded the word around. But in a related matter it can. It concerns the controversy over the naming of the Ministry of Defence’s weapons expert, David Kelly, who shortly after he was ousted in the press as the source of reports claiming the government’s public dossier on Iraq’s weapons had been “sexed up”, committed suicide. Although an inquiry exonerated Blair of any blame for precipitating the suicide, a BBC interview much later

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caught Blair lying in a way we could all understand. He told the interviewer: “I don’t believe we had any option, however, but to disclose his name [to the press].” Until that interview Blair had always maintained that it was “completely untrue” that the government had done this. A.N. Wilson, the acerbic novelist and literary critic, wrote in the Financial Times in January 2014 that “the obvious lesson is that the war brought more disasters than it solved. It is not one that we’d expect many politicians to have learnt, for politicians get drunk on war; they enjoy it. Witness the obscene expression on Tony Blair’s face, to this day, when he defends the invasion of Iraq.” But who else, apart from a coterie of Bush supporters together with Blair, will defend the war today? In the US, Bush, unlike Blair, has sensibly melted into the background and so removed himself from public combat even though Iraq has now erupted into civil war between Sunnis and Shiites, an inevitable result of the destabilising impact of the US/British-led invasion. In Britain, where Blair still goes on television to defend himself, he has become a reviled figure in the eyes of most of the population. The UK’s ambassador to the US during the run up to the war, Christopher Meyer, wrote a scathing attack on Blair, who he served, in his book DC Confidential. He argued that Blair could have secured a delay to the start of military action and thus bought time for post-conflict planning that might have avoided much of the violence now plaguing Iraq. A delay would also have made it possible for Hans Blix, the chief UN arms inspector, to properly finish his job and prove beyond all doubt that Iraq did not possess weapons of mass destruction. Meyer wrote that Blair was “seduced” by the “glamour” of US power and failed to take tough negotiating positions. As a result the prime minister let himself “be taken for granted” by the White House. “We may have been the junior partner in the enterprise but the ace up our sleeve was that America did not want to do it alone.” Meyer’s colleague Rodric Braithwaite, former UK ambassador to Moscow and later chairman of the Joint Intelligence Committee that prepares intelligence for the prime minister, wrote in the Financial Times in August 2006 – whilst Blair was still in power – saying much the same thing: “Blair’s total identification with the White House has destroyed his influence in Washington, Europe and the Middle East itself. Who bothers with the monkey if he can go straight to the organ-grinder?” He then added: “A spectre is stalking British television, a frayed and waxy zombie straight from Madame Tussaud’s. This one, unusually, seems to live and breathe. Perhaps it comes from the CIA’s box of technical tricks, programmed to spout the language of the White House in an artificial English accent.” Never have I read such a vicious attack on a prime minister by a former top diplomat. Braithwaite continues: “Stiff in his opinions, but often in the wrong, Blair has manipulated public opinion, sent our soldiers into distant lands for ill-conceived purposes, misused the intelligence agencies to serve his ends and reduced the Foreign Office to a demoralised cipher because it keeps reminding him of inconvenient facts.”

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People see and read about the endless civil warfare in Iraq and know what triggered it. It was not Saddam Hussein who for all his arrogant bestiality and previous war crimes against the Kurds and Iran ran a good economy and welfare system, ruled over the Sunnis and Shiites with a relatively even hand and kept the social and religious peace. Children did not die in their tens of thousands for want of medicines and hospitals. Bush and Blair were the culprits. In May 2007 the Financial Times wrote in an editorial: “Iraq was a catastrophic error of judgement. As well as breaking a state and dissolving a society, the invasion and occupation created an incubator of terrorism far more dangerous than the Afghanistan of the Taliban and proliferated jihadi totalitarianism around the globe.” The new crisis tearing Iraq apart that began in mid-June 2014, as the Sunni terrorist organisation the Islamic State (ISIS) invaded Iraq from its bases in civil war-ridden Syria, proves the Financial Times 100 per cent right. *** So on to the “organ grinder” (or is it the puppeteer?) President George W. Bush. Needless to say it was he and his CIA who spewed out false intelligence on Iraq. The White House had decided to go to war with Iraq sometime before they had collated all their “evidence”. Bush was certainly weaving a web of half-truths and even lies. If there were any doubt that he and Blair committed a war crime in deciding to launch a war of aggression on flimsy evidence of Iraq’s wrongdoing, then there is no question that they sanctioned torture. Unfortunately the war happened before the International Criminal Court came into being and retrospective prosecutions are not allowed. Unfortunately too Obama decided not to pursue the issue, on the grounds that he wanted the US to move forward without divisive recriminations and not get bogged down in the past. However, the pressure on Obama to push for prosecutions rose sharply on publication of the report of the US Senate at the end of 2014 which documented in 6,000 pages of detail the abuses of the Bush administration. Moreover, it was abundantly clear from the evidence presented in this report that under the UN’s Anti-Torture Convention (which the US is a party to) Bush and his senior officials were liable for arrest and prosecution if they travelled abroad and a member country – as the UK did with Pinochet – decided to act. Regrettably, no country has dared to do this. (Another example is when in March 2014 a judge in Paris found Pascal Simbikangwa, a former Rwandan intelligence chief, guilty of genocide and of complicity in crimes against humanity. He was sentenced to a 25 year term. Similarly in 2013 Beatrice Munyenyezi, a Rwandan woman who won political asylum in the US, was stripped of her American citizenship and sentenced to ten years in prison after she was convicted of lying about her family’s role in the 1994 killings.)

Ending War Crimes, Chasing the War Criminals

*** A few words on the ethics and history of torture. Who in extremis could put his hand on his heart and say he would not sanction torture if he knew the detainee possessed information that could save thousands of lives? This has been the central conundrum of the long debate on the morality of torture. In 1979, nearly two decades after the revelations of torture during the war of Algerian independence against colonial France, the commanding general of the French forces during the Battle of Algiers, Jacques Massu, published his memoirs defending its policy. The man who in his family life tried to make amends by adopting two Algerian orphans made the argument that torturers are responsible servants of the state in times of extreme crisis. Six years ago another top French general, Paul Aussaresses, went public with his memoirs. “The first time I tortured someone”, he wrote, “it was useless: the fellow died without saying a thing. I had no regrets over his death. If I had any regrets it was because he did not talk.” But Massu, then in his 90s, commented that he had become convinced that torture is “not indispensable in time of war. We should have found another way.” That is indeed the question, and society at large prefers to skirt around it. We have labelled it a sin, but in extraordinary situations we tolerate it. When in 1998 the Chilean former head of state General Augusto Pinochet was detained in London and accused of torture his lawyer argued quite correctly that “there is torture everywhere, including in Britain and Northern Ireland”. How else to explain the eerie silence that greeted the detailed revelations made in the Washington Post about American torture practices in Iraq? With no shortage of testimonials, the reports revealed that US intelligence agents had been torturing terrorist suspects in Bagram air base outside Kabul and in Diego Garcia, a US base beyond the reach of American courts. Other suspects were handed over to the intelligence services of Jordan, Egypt and Morocco which did the job US officials were perhaps nervous and reticent about doing, perhaps fearing adverse publicity if there were leaks. It appeared to the reporters that wrote the stories that a number of officials directly involved wanted the subject aired. Aware of the moral and legal ambiguities involved, they wanted to know what public opinion considered were the limits. They got only an indirect answer. Most of the rest of the media gave the story only cursory attention, Congress ignored it, and the Bush administration brushed it off. Timing, of course, is everything. When the US was doing well in Afghanistan and hopes were high it would repeat its success in Iraq very few wanted to quibble about such things. But later with the US on the psychological run, if not at first on a military one, together with the fact that the evidence was so accessible and prolific, the urge to jump on the moral high horse was irresistible. Sadly, this highlights the ambiguities of human nature even more starkly. These particular ambiguities go back a long time. Rome tortured the early Christians. The Church, repelled by what had happened, for a thousand years

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after used its influence to ensure that torture was abolished in Europe. But then at the time of the Inquisition it brought it back. Then in the 17th century torture started to die out again. In 1640 it was abolished in England – except for “witches”. In France and Italy Voltaire and Beccaria wrote passionately against it and after the revolution of 1789 it was made a capital offence. One hundred and forty or so years later during the 20th century torture returned with vengeance – in Stalin’s Soviet Union, in Hitler’s Germany, Mussolini’s Italy, Franco’s Spain and, later, in British-ruled Northern Ireland. In 1972 Amnesty International opened a campaign for a UN Anti-Torture Convention. In 1981 it won the support of Sweden, the first country to take up the cause. In 1984 the UN finally approved a legally binding Convention Against Torture. Quite soon after the treaty was ratified by most members of the UN, including by the US of Ronald Reagan and the Britain of Margaret Thatcher. Once again the tide had appeared to turn against torture. In 1999, in the British House of Lords for the first time anywhere, a supreme court decided that sovereign immunity must not become sovereign impunity and that under the Convention the ex-Chilean President Pinochet could be prosecuted for authorising torture. Yet still, says Amnesty, torture continues to be practised by most countries in the world. Bush imported the techniques his forces used in Iraq back to the US. The most notorious was “water-boarding”, a form of torture that makes the victim feel as if he were drowning. This was sometimes reported in the media but rarely, if at all, was reference made to the fact that the US was breaking its solemn commitment to the UN Anti-Torture Convention. (According to Northwestern University Professor of Law Joseph Marguiles, writing in his book What Changed When Everything Changed, “[i]n nearly 300 articles published between 2002 and 2008 the New York Times, the Wall Street Journal, US Today and the Los Angeles Times wrote that water-boarding was torture only four times. Instead, the papers used euphemisms such as ‘harsh’, ‘controversial’, ‘aggressive’ and ‘coercive’. Yet before and after 9/11 the same papers consistently described water-boarding as torture when it was practised by other countries.”) The evidence is that rarely does torture successfully elicit the truth – at best only part of it. Many senior generals in the US military have made that point. There is little or no evidence that the Bush torture regime produced the “goods”. The Senate report on torture mentioned above gives repeated examples of torture not working or producing misleading or wrong information. Even more important it shows clearly that in all cases the information elicited was also available from other sources In the UK torture also was tolerated. An official UK government report published in December 2013 said that “British officials and minsters were aware of abuse and the use of extreme harshness in Afghanistan and Iraq”. In one instance, the report said, just days before Prime Minister Tony Blair told the House of Commons in January 2002 that the UK and its allies should abide by the Geneva Convention on the treatment of terrorist detainees, British intelligence instructed a field operative at Bagram air base to turn a blind eye to potential

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abuses by US forces. Conservative MP Andrew Tyrie commented that “[i]t is truly shocking that Britain has facilitated kidnap and torture” and he went on to criticise the government’s decision to abandon a judicial inquiry. Torture is often used as a tool of oppression, to intimidate and humiliate. It certainly corrupts the souls of the torturers, as many have later testified. And probably it deeply corrupts the countries who allow it. What cannot be doubted it compromises their reputation, undermines their credibility and weakens their ability to win the changes they want elsewhere in the world where often they trumpet the need for the observance of human rights standards. The authorised use of torture, if it could be prosecuted by the ICC, would surely result in a verdict that war crimes had been committed. Bush and Blair are both active Christians. One would have hoped they would have read about the torture of the early Christians by the Roman Empire and drawn the right conclusions from it – hardly any Christians renounced their faith and it revolted European society for a thousand years. Both their misleading and wicked use of the evidence against Saddam Hussein’s Iraq and the use or toleration of torture will be remembered long after the good things they did are forgotten.

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6

Ariel Sharon – Israel’s War Crimes General

The Middle East is living a nightmare, partly because of a man of Russian origin who became Israel’s greatest general and, later, prime minister of Israel, Ariel Sharon. What are the inner thoughts of this man? This is what Amos Oz, an acclaimed Israeli journalist, writer and novelist, with a world-wide reputation, helps us to discover in an interview published by the Israeli daily, Davar, in 17 December 1982. Amos Oz: We are talking while sitting on the balcony of the pretty country house belonging to Ariel Sharon which is situated in a prosperous Moshav [an agricultural cooperative]. To the west we see a burning sunset and there is a scent of fruit trees in the air. We are being served iced coffee in tall glasses. Sharon is about fifty years old. He is a man well known for his military actions. He is a strong, heavy, figure wearing shorts but no shirt. His body is tanned a metallic bronze shade, the colour of a blond man living in the sun. He puts his hairy legs on the table and his hands on the chair. There is a scar on his neck. His eyes wander over his plantation. He spells out his ideology in a voice made hoarse by too much smoking: “You can call me anything you like. Call me a monster or a murderer. Just note that I don’t hate Arabs. On the contrary. Personally, I am much more at ease with them, and especially with the Bedouin, than with Jews. Those Arabs we haven’t yet spoilt are proud people, they are irrational, cruel and generous. It’s the Yids that are all twisted. In order to straighten them out you have to first bend them sharply the other way. That, in brief, is my whole ideology.” “Call Israel by any name you like, call it a Judeo-Nazi state, as does Yeshayahu Leibowitz [a revered Israeli intellectual]. Why not? Better a live Judeo-Nazi than a dead saint. I don’t care whether I am like Gaddafi. I am not after the admiration of the gentiles. I don’t need their love. I don’t need to be loved by Jews like you either. I have to live, and I intend to ensure that my children will live as well. With or without a blessing of the Pope and other religious leaders

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or from the New York Times. I will destroy anyone who will raise a hand against my children, I will destroy him and his children, with or without our famous purity of arms. I don’t care if he is Christian, Muslim, Jewish or pagan. History teaches us that he who won’t kill will be killed by others. That is an iron law.” “Even if you’ll prove to me by mathematical means that the present war in Lebanon is a dirty immoral war, I don’t care. Moreover, even if you will prove to me that we have not achieved and will not achieve any of our aims in Lebanon, that we will neither create a friendly regime in Lebanon nor destroy the Syrians nor even the PLO [Palestine Liberation Organisation], even then I don’t care. It was still worth it. Even if Galilee is shelled again by Katyusha rockets in a year’s time, I don’t really care. We shall start another war, kill and destroy more and more, until they will have had enough. And do you know why it is all worth it? Because it seems that this war has made us more unpopular among the so-called civilised world.” “We’ll hear no more of that nonsense about the unique Jewish morality, the moral lessons of the Holocaust or about the Jews who were supposed to have emerged from the gas chambers pure. As for Eyn Hilwe [Lebanon’s largest refugee camp] it’s a pity we did not wipe out that hornet’s nest completely. I have no regrets about that healthy bombardment of Beirut; and that tiny massacre. Can you call killing 500 Arabs a massacre? We should have done it with our own delicate hands rather than let the Phalangists [the Christian political party and militia, allied with Israel] do it. All these good deeds finally killed the bullshit talk about a unique people and of being a light upon the nations. No more uniqueness and no more sweetness and light. Good riddance.” “I personally don’t want to be any better than Khomeini or Brezhnev or Gaddafi or Assad or Mrs. Thatcher, or even Harry Truman who killed half a million Japanese with two fine [nuclear] bombs. I only want to be smarter than they are, quicker and more efficient, not better or more beautiful than they are. Tell me, do the baddies of this world have a bad time? If anyone tries to touch them the evil men cut off their hands and legs. They hunt and catch whatever they feel like eating. They don’t suffer from indigestion and are not punished by Heaven. I want Israel to join that club. Maybe the world will then at last begin to fear me instead of feeling sorry for me. Maybe they will start to tremble, to fear my madness instead of admiring my nobility. Thank God for that. Let them tremble, let them call us a mad state. Let them understand that we are a wild country, dangerous to our surroundings, not normal, that we might go crazy if one of our children is murdered – just one! That we might go wild and burn all the oil fields in the Middle East! If anything would happen to your child, God forbid, you would talk like I do. Let them be aware in Washington, Moscow, Damascus and China that if one of our ambas-

Ending War Crimes, Chasing the War Criminals

sadors is shot, or even a consul or the most junior embassy official, we might start World War Three just like that!”

Is one surprised, when these are Sharon’s intimate thoughts, that many call him a war criminal? He raves as if he were Hitler or Stalin. Not even George W. Bush, Henry Kissinger, Vladimir Putin or Xi Jinping would think like this, much less want to put such thoughts into action. *** Ariel Sharon entered a permanent vegetative state after suffering a stroke on 4 January 2006. In 2013, tests showed “robust activity” in his brain in response to pictures of his family and recordings of his son’s voice. He died on 13 November 2014. Sharon was a commander in the Israeli army from its inception in 1948. As a paratrooper and then an officer he participated prominently in the 1948 War of Independence. He was a key figure in the 1956 Suez War, the Six-Day War of 1967, the War of Attrition and the Yom Kippur War of 1973. As minister of defence he directed the 1982 Lebanon War. He was considered the greatest field commander in Israel’s history and one of the country’s greatest ever military strategists. After his assault of the Sinai in the Six-Day War and his encirclement of the Egyptian Third Army in the Yom Kippur War the Israeli public nicknamed him “The King of Israel” and “The Lion of God”. After retiring from the army Sharon joined the Likud party and served in a number of ministerial posts in Likud-led governments in 1977–92 and 1996–99. He became the leader of the Likud in 2000 and served as Israel’s prime minister from 2001 to 2006. Sharon first stirred up controversy with the massacre at Qibiya, a Palestinian village. Troops under his command attacked the village in October 1953 as a reprisal for the murder of a woman and two children in the Israeli town of Yehud two days before. According to Professor Baruch Kimmerling of the Hebrew University of Jerusalem, a critical biographer of Sharon, “[t]here had been about 130 Israeli civilian victims of this ‘border war’ and public opinion demanded revenge. About 45 houses in Qibiya were blown up with their inhabitants inside. 67 men, women and children died. Sharon argued during the subsequent enquiry that he ordered his soldiers to check every house and warn the inhabitants to leave. The soldiers denied that they had such an order.” The operation, now long forgotten, caused an international uproar. At first Israel tried to deny the massacre was carried out by a military unit and claimed that “angry border-area settlers” were responsible. “But among the military”, continues Kimmerling, “the wider population and especially among the youth, it was considered a big success and raised national pride”. Prime Minister David Ben-Gurion, hearing of the action, called Sharon in and “was enchanted by the young, brave, handsome and bright officer” and from then on gave him his personal protection and maintained a special relationship with him, which Sharon

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used every time he got into trouble following one of his adventurous and unauthorised military operations. The Sabra and Shatila massacre in Lebanon occurred between 16 to 18 September 1982. Between 800 and 3,500 Palestinian civilians in the Sabra and Shatila refugee camps were killed by the Phalangists. Elie Hobeika was the ground commander of the militiamen who entered the Palestinian camps and killed many of the Palestinians in the camp in an attempt to clear out PLO fighters. Israeli forces, given the order by Sharon, then minister of defence, surrounded the camps, blocked camp exits and provided logistical support. The killings led some to label Sharon “the Butcher of Beirut”. Later that year a commission led by the head of the Supreme Court, Yitzhak Kahan, established by the Israeli government, found that as minister of defence during the 1982 Lebanon War Sharon bore “personal responsibility” for the massacre. He was also was found to bear personal responsibility “for ignoring the danger of bloodshed and revenge” and “not taking appropriate measures to prevent bloodshed”. Sharon’s negligence in protecting the civilian population of Beirut, which had come under Israeli control, amounted to a “non-fulfilment of a duty”. It was recommended that Sharon be dismissed as defence minister. Initially, Sharon refused to resign. Prime Minister Menachem Begin refused to fire him. However, following a peace march against the government, as the marchers were dispersing, a grenade was thrown into the crowd, killing Emil Grunzweig, a reserve combat officer and peace activist and wounding half a dozen others, including the son of the interior minister. The fuss this generated led Sharon to resign as defence minister, but he remained in the cabinet as an influential minister without portfolio. In the 1970s, 1980s and 1990s, Sharon championed the construction of Israeli settlements in the West Bank and Gaza Strip. However, as prime minister in 2004–5, to most people’s surprise, Sharon orchestrated Israel’s unilateral disengagement from the Gaza Strip. Jewish settlements were removed. Facing stiff opposition to this policy within the Likud in November 2005 he left the party to form the Kadima party. On 18 June 2001 relatives of the victims of the Sabra massacre began proceedings in Belgium to have Sharon indicted on war crimes charges. Belgium allowed “universal jurisdiction”. Elie Hobeika, the leader of the Phalange militia who carried out the massacres, was assassinated in January 2001, several months before he was scheduled to testify against Sharon for the trial. The Arab press have widely speculated that Hobeika’s assassination was ordered by Israel. In June 2002, a Brussels appeals court rejected the lawsuit because the law was subsequently amended, following severe American pressure, to disallow such lawsuits unless a Belgian citizen is involved. In Benjamin Netanyahu’s 1996–99 government, Sharon was minister of national infrastructure (1996–98), and foreign minister (1998–99). Upon the election of the Labour government, Sharon became leader of the Likud party. On 28 September 2000, Sharon and an escort of over 1,000 Israeli police of-

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ficers visited the Temple Mount complex, site of the Dome of the Rock and alAqsa Mosque, the holiest place in the world to Jews and the third holiest site in Islam where Mohammed ascended to heaven for a night. He publicly claimed this as Jewish territory – despite 1,300 years of continuous Muslim presence – because down below are the remains of the Temple that the Romans destroyed. Sharon declared that the complex would remain under perpetual Israeli control. Palestinian commentators accused Sharon of purposely inflaming emotions with the event to provoke a violent response and obstruct the success of delicate ongoing peace talks. How would Christians have felt if Sharon had strutted across the plaza in front of St. Peters and made a speech that slighted Christian claims to that piece of earth? How would the Jews have felt if the Palestinians had suspended political banners from the Dome at the top of the hill down over the sacred Wailing Wall below? On the following day, a large number of Palestinian demonstrators and an Israeli police contingent confronted each other at the site. According to the US State Department, “Palestinians held large demonstrations and threw stones at police in the vicinity of the Western Wall. Police used rubber-coated metal bullets and live ammunition to disperse the demonstrators, killing 4 persons and injuring about 200.” This appeared to be the trigger for a new Palestinian intifada (uprising). Sharon’s supporters claim that Palestinian President Yasser Arafat and the Palestinian National Authority (PLA) planned the intifada months prior to Sharon’s visit. They state that Palestinian Security Chief Jibril Rajoub provided assurances that if Sharon did not enter the mosques no problems would arise. They also quote statements by PA officials, particularly Imad Falouji, the Palestinian Authority’s communications minister, who admitted months after Sharon’s visit that the violence had been prepared in July, far in advance of Sharon’s visit, stating the intifada “was carefully planned since the return of Yasser Arafat from Camp David negotiations rejecting the US conditions”. A report prepared by George Mitchell, President Barack Obama’s special representative, concluded that “the Sharon visit did not cause the Al-Aqsa Intifada. But it was poorly timed and the provocative effect should have been foreseen; indeed, it was foreseen by those who urged that the visit be prohibited. More significant were the events that followed: the decision of the Israeli police on 29 September to use lethal means against the Palestinian demonstrators.” In addition, the report stated: “We have no basis on which to conclude that there was a deliberate plan by the Palestinian Authority to initiate a campaign of violence at the first opportunity; or to conclude that there was a deliberate plan by the Israeli police to respond with lethal force.” In contrast to the studied ambiguity of this assessment – in one line saying Sharon “did not cause” the intifada but in the next sentence saying it was “poorly timed and the provocative effect should have been foreseen” – David Landau, former editor-in-chief of Haaretz, in his 2014 book Arik: The Life of Ariel

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Sharon, comes to a tougher conclusion. He argues that Sharon helped trigger the intifada. He also writes that Sharon was a self-aggrandising “King of Israel” who conflated the elevation of his own status with the defence of the nation. Sharon was elected prime minister in February 2001. Certainly his walk about near the Al-Aqsa Mosque worked in his electoral favour. But Landau believes that once Sharon became prime minister his statesman’s instincts took over and a “monumental transformation” led Sharon, who had played a major role in establishing Israel’s settlements in Palestine, to order the unilateral evacuation of settlers from Gaza. Many argue that if he not been struck down by his massive stroke he would have gone on to make a full peace with the Palestinians. Who knows? Sharon was investigated for alleged involvement in a number of financial scandals, in particular, the “Greek island affair” and irregularities of fund-raising during the 1999 election campaign. In the “Greek Affair”, Sharon was accused of promising (during his term as foreign minister) to help an Israeli businessman, David Appel, in his development project on a Greek island in exchange for large consultancy payments to Sharon’s son, Gilad. Sharon was not charged with any wrongdoing but the police announced that they had found evidence of a USD 3 million dollar bribe paid to Sharon’s sons. Just 24 hours after the announcement, Sharon suffered a stroke on 4 January 2006, went into a coma, and never recovered. His son Omri, a Knesset member at the time, who was Sharon’s closest advisor, was charged with corruption and sentenced later that year to nine months in prison. It is the Sabra and Shatila massacre that has been the reason for many to call for a war crimes trial. As Amos Oz revealed in his interview Sharon was a man of very extreme views even if they became diluted under the responsibilities of government office. Nevertheless, the ICC was not formed at the time of the massacre and therefore could not indict him. No court in another country was prepared to extend “universal jurisdiction” when none of their own citizens were victims. Israel, for its part, feels that justice was done when he was forced to resign as defence minister. Some say that lying year after year in his vegetative state, when he was aware enough to have some degree of human response, was God’s punishment. He lived in the worst of prisons. *** In July 2014 the UN’s top human rights official, Navi Pillay, told an emergency debate of the UN Human Rights Council that it must condemn Israel’s military actions in the Gaza during the short war of 2014. “There seems to be a strong possibility that international law has been violated, in a manner that could amount to war crimes.” At least 2,100 Palestinians were killed, overwhelmingly civilians, including over 513 children. On the Israeli side 67 soldiers and six civilians including one child were killed. In January 2015 the ICC announced that it was going to launch an investigation.

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7

Guatemala – “Only Political Killings”

In Guatemala there has been no paramount leader 1 in the struggle for human rights and democracy to single out. Indeed, there is no defining moment when one could say that things started to get better after a particular event. Guatemala is simply one of the contemporary world’s worst horror stories that gradually, often enough imperceptibly, got better. Amnesty was in at the struggle from the beginning. Some of its exposés gained world attention, but none profoundly changed the situation for the better. Again, improvement came by the dripping of water on hard stone, incrementally, painfully slowly but over time clearly ameliorating an appalling state of affairs, where not that long ago assassinations and disappearances were as common and as prevalent as cars and motorbikes on the capital’s overcrowded streets. Guatemala is part of the isthmus that links the great continents of North and South America. In the I970s and early I980s it was, along with El Salvador and Nicaragua, the part of the world where human rights were most violated. Proportionally to its population, more people were tortured and killed for their beliefs than anywhere else on the globe. For centuries, since the Spanish moved their initial interest in Central America to the vast continent to the south, these countries have been a backwater. (Costa Rica and Panama, also Central American countries, have different histories, the latter because of US occupation of the Canal Zone and the former because of its lack of feudal history and its distinct, liberal political culture.) They have all been feudal, reactionary states par excellence, long used to the writ of the local strong man. In the 1970s they became the focus of superpower interest. In each of these countries anti-establishment guerrilla groups were formed with discreet support from communist Cuba – but 1

The controversial Indian leader Rigoberta Menchu came to prominence late on in the events I describe, although she was active from the early 1980s, but only as an exile. She became both world- and Guatemala- renowned when she was awarded the Nobel Peace Prize in 1993. She has been a major figure in creating sympathy around the world for indigenous peoples, and also for the guerrilla movement within Guatemala.

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also from Venezuela, Panama, Costa Rica, Mexico, Peru, Ecuador and Bolivia and, it was said, without any evidence, from Moscow. The USA, long the passive supporter of the status quo, became increasingly an active participant, not always on the side of the dictators, but more often than not. In 1981 I made my first visit to Guatemala, struck by an interview I had recently done with Thomas Hammarberg, who was then Amnesty’s secretarygeneral, in which he had singled out Guatemala as Amnesty’s number one priority. The organisation, I learnt, was just about to publish a report in which it concluded that the selection of targets for detention and murder, and the deployment of official forces for extra-legal operations could be pinpointed to secret offices in an annexe to Guatemala’s National Palace, under the direct control of the President of the Republic. Before I left, Hammarberg cautioned me: “Guatemala is not a typical Amnesty country – there are no political prisoners, only political killings.” Amnesty’s usual practice of dealing with human rights violations – the adoption of prisoners – was fruitless in the Guatemalan case, he explained. Most of the time, news of an arrest arrived after the prisoner was dead. When the notification had been immediate and Amnesty had been able to intervene within hours of the arrest, there had been a handful of successes. But, he added, no more than ten or 15 in the whole of the preceding ten years. Surprisingly, to enter Guatemala was not difficult. Passport control was lax and it was easy to disappear into the airport throng with only a tourist visa. There were a few soldiers lazing in the sunshine. Even a visit to the press spokesman for the army, Major Francisco Djalma Dominguez, whose predecessor had been murdered by guerrillas a year before, was made without inspection of papers and with only a pleasant middle-aged secretary to question my purpose. The single soldier on the doorstep was day-dreaming. All this was deceptive. Guatemala, I soon found, was a country in the grip of fear. Government critics, with very rare exceptions, would not be seen talking to a foreign reporter inside Guatemala. To do so was to court assassination. Every day the morning newspapers had more of the same: ten or a dozen bodies discovered, another wave of killing. The bodies of the victims were found piled up in ravines, dumped at roadsides or buried in mass graves. Since 1944 the Guatemalan ruling class had been living in fear of a left-wing revolution. In that year a military rebellion broke the grip of 14 years’ dictatorial rule by Jorge Ubico. A university don, Juan Jose Arevalo, was given the job of sorting out the long legacy of misrule, social deprivation and economic inequality. He stepped down in 1951 and in free and fair elections his defence minister, Colonel Jacobo Arbenz Guzman, took over the reins of government. Guatemala, at that time, was a classic “banana republic”. Arbenz, a determined reformer, decided to end once and for all the United Fruit Company’s control of vast estates and its near monopoly of banana production. The first beneficiaries were to be the Indian population. Despite the spectacular cultural heritage of the native Indians – their direct ancestors, the Mayans, built mam-

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moth temples and houses and pioneered major breakthroughs in astronomy and mathematics – they were a people who had experienced worsening poverty right through the 20th century. The Indians made up half of the population, and they were becoming increasingly over­crowded on their traditional territory, the mountainside fields. Their infant mortality rate was high, their diet was deteriorating annually, and younger sons were reduced to scraping a living on precipitous slopes that barely held the soil to the mountainside. Arbenz issued a decree expropriating parts of large estates – in the main their uncultivated portions. In doing so, he took on imperial capitalism at its crudest. The United Fruit Company had for decades had its way throughout Central America, much of the Caribbean and parts of South America. By the 1950s United Fruit’s investment in Guatemala accounted for almost two-thirds of the country’s total foreign capital. It owned 2,500,000 square kilometres of territory and the country’s single railway line, and had great influence in many of Guatemala’s most important institutions. Arbenz’s experiments not only threatened United Fruit, they aroused Washington’s fears. At the height of the Cold War, the US government was afraid of anything that smacked of communist influence. No matter that Arbenz himself was clearly not a communist and that only four out of 56 Guatemalan congressmen were self-confessed communists at that time. The CIA was asked by President Eisenhower to help overthrow Arbenz, using as a cover a group of mercenaries and exiles. The deed was done, United Fruit retrieved its estates, Arbenz and his sympathisers were hunted down and killed or went into hurried exile. Arbenz’s successors ruled largely by decree. Occasionally there were street demonstrations led by students and trade unionists. But nothing really disturbed the status quo until 1960. Then a small group of nationalist army officers attempted an uprising. It came to nothing in itself. It was the start, however, of a guerrilla campaign which waxed and waned for most of the next 40 years. By 1966 the guerrillas’ strongholds in the mountain ranges of Sierra de Las Minas and Sierra de Santa Cruz seemed a genuine threat to the government, which, with the aid of paramilitary civilian groups, moved ruthlessly to suppress them. Colonel John Webber, the US military attaché, was reported by Time magazine on 26 January 1968 to have acknowledged that it was his “idea” to mobilise these groups,2 which were the precursors of the “independent” civilian deathsquads that caused mayhem until the early 21st century. In June 1966 the first leaflets of the Mano Blanca (White Hand) appeared. (Mano was the acronym for the Movimiento Anti-Comunista Nacional Organizado (National Organized Anti-Communist Movement).) The guerrilla movement did not re-emerge until the mid-1970s, when a group surfaced calling itself, disarmingly, the Guerrilla Army of the Poor. By 1980 there were another three groups at work in different parts of the country, concentrated in the highlands and mountains of the north – the 2

US government documents now made available to the public make it clear that this was official government policy.

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People’s Armed Organization, the Revolutionary Armed Forces and a breakaway branch of Guatemala’s communist trade union. Their members were few – the army told me only 200, sympathisers said one or two thousand. But they were multiplying fast and, to the surprise of observers of the Latin American scene, were winning a great deal of support and membership from the Indians. (When Che Guevara was hunted down and killed by the Bolivian army in 1967, it was widely observed by both left and right that he made the mistake of thinking the Latin American Indians and mestizos would be willing supporters of the guerrillas. In fact, they were too apathetic and fearful and he was quickly isolated. It was Guatemala that became the first country in Latin America where significant numbers of Indians were politically active to the point of lending their support in measurable terms to a guerrilla effort to overthrow the government.) However, while the guerrilla movements’ activities were sporadic, the right-wing progovernment death squads operated on full throttle. Amnesty International from the beginning always maintained that the association of the death-squads with important key government and political figures was close enough to cause serious concern. In its 1981 annual report covering the year 1980, it talked of “political murder” encouraged by the Guatemalan government. But it stopped short of saying that the killings were directed by the government. Amnesty at that time was still awaiting irrefutable evidence to confirm its suspicions. The nuanced approach was discarded on 18 February 1981. In one of the most outspoken reports ever issued by Amnesty, it stated unequivocally: “People who oppose or are imagined to oppose the government are systematically seized without warrant, tortured and murdered. These tortures and murders are part of the deliberate and long-standing programme of the Guatemalan government.” The government, for its part, denied having made a single political arrest or having held a single political prisoner. The “disappearances”,3 senior government officials told me, were brought about by right-wing and left-wing death-squads. The Amnesty report is an accumulation of horrors that pointed a firm finger at the government. My own conversations with exiles in Costa Rica and with the vice-president of Guatemala, who fled the country in late 1980, backed it up. Nearly 3,000 Guatemalans were seized without warrant and killed in the years immediately following General Lucas Garcia’s accession to the presidency of Guatemala in 1978. (And thousands more subsequently.) Many of them were tortured. Death for some had been quick and clean, a bullet in the head. Others had died slowly and painfully, suffocated in a rubber hood or strangled with a garrotte. One letter received by Amnesty International described a secret grave in a gorge, used by army units who had seized and murdered the leaders of a village earthquake reconstruction committee (Guatemala was rocked by an earthquake in 1976 – 20,000 people died):

3

The now well-used word “disappearances” was first coined in Guatemala.

Ending War Crimes, Chasing the War Criminals

More than thirty bodies were pulled out of the 120-foot gorge ... but farmers who live near the site told me there were more bodies, many more, but that the authorities didn’t want to admit as much or go to the trouble of dragging them out. They said vehicles have been arriving at the edge of the gorge at night, turning out their lights, engaging in some mysterious activities. We went down to the bottom of the ravine the next day … About halfway down the ravine the stench became unbearable. Barely visible in the dim light were piles of bodies. Most were in extremely advanced states of decomposition, but still with remnants of tattered clothing.

The people killed were often, like these villagers, simple peasant folk, but ones who had shown some initiative like running an earthquake reconstruction committee that badgered the government for help, or a co-operative or church leadership training group. Overwhelmingly it was the incipient peasant leadership that had suffered the most. The next sizeable group to have been penalised were students and labour leaders. After that, a whole range of professional people disappeared – journalists, clergy, doctors and educators and the cream of the Social Democratic and Christian Democratic parties. Anyone who spoke out and complained, much less organised a formal opposition grouping, was the target for assassination. How did Amnesty arrive at its conviction that the government was in charge of the killings? A series of violent events, observed and recorded by reliable witnesses, all suggested government involvement. The most widely reported mass killing by regular army forces took place on 29 May 1978. One hundred Indians, including five children, were shot dead in the town square of Panzos. The Indians had been protesting about land rights. They were cold-bloodedly shot down by soldiers positioned on rooftops and inside buildings. Townspeople have told Amnesty that mass graves were dug two days before the killings. In January 1979 a group of Indians occupied the Spanish embassy to protest against this and other abuses carried out by the army in El Quiche province. The government, outraged by the protest, ordered the army to attack the embassy. One peasant, Gregorio Yuja Xona, and the Spanish ambassador were the only survivors. Yuja Xona was held under police guard in a hospital, then, without explanation, the police allowed him to be removed. His body was later found, mutilated. There were a number of occasions when prisoners officially acknowledged to be in police custody were later found dead – for example, 37 killed by garrotte in 1979 and dumped in a ravine. Or the 26 labour unionists who, in June 1980, were arrested by plain-clothes men while the street was closed to traffic by uniformed police, and have not been seen since. The government denied holding them. There is evidence from one of the very few who have escaped after being picked up. Amnesty International published a taped interview with the former prisoner. He described how he was held in Huehuetenango Military Base and tortured by being pulled up by his testicles and hooded with a rubber inner tube of a tyre lined with quicklime. His testimony was terrifying in its simple directness:

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Before my very eyes they killed three people; they strangled them. The way they killed them was with a piece of rope, a kind of noose, which they put around the neck and then used a stick to tighten it like a tourniquet from behind and with their heads held down in the trough. When they came out, their eyes were open; they’d already turned purple. It took at most three minutes in the water. I also saw that one of these three, a boy, when they threw him down on the floor with his clothes wet, was still moving and one of the officers ordered them to put the tourniquet on him again until he stopped moving. They just showed me the other six bodies and said the same thing would happen to me if I tried to lie to them.

On other occasions, plain-clothes men have been overpowered and found to possess identification papers associating them with the intelligence services. One such event occurred when Victor Manuel Valverth Morales, student representative on the executive committee of the Universidad de San Carlos, was seized at gunpoint in 1980 by two men in plain clothes inside the University’s school of engineering in Guatemala City. His assailants did not identify themselves as law enforcement officers or produce a warrant for his arrest; when he tried to escape they shot him several times. Other students then came to his assistance and overpowered the attackers, one of whom, Adan de Jesus Melgar Solares, was murdered by students when a force of uniformed army troops attacked his student captors inside the university precincts. Students took the dead man’s identification card, which showed him to be a military intelligence agent from the “General Aguilar Santa Maria” army base in Jutiapa Province. The second man, who was not harmed, carried an identification card issued by the Guardia de Hacienda (Treasury police) for “Servicio Especial” (Special Service) in the name of Baldomero Mendoza. The government denied that either of the two men who attacked Victor Morales were members of the security services, but the dead man’s widow later confirmed his identity to the press. I spent four hours in Mexico City with the researcher for Amnesty International Mike McClintock cross-examining him on how Amnesty garnered such a wealth of information and established its truth. It was clearly an exhaustive process. External organisations – church, union and political –who had live networks inside Guatemala fed him with information all the time. He and other members of the small Amnesty team had to evaluate it carefully, learning over time who could be trusted, who had a propensity to exaggerate and who they could ask to double- and even triple-check. When it came to the crucial indictment – that these killings were organised from an annexe to the central palace – Amnesty’s method of verification and double-checking indicated to me, an outside investigator, the difficulties and complexities that confront Amnesty. Amnesty research on the matter required a visit to Washington in 1979 to look at the records and files of US government agencies. With access granted under the Freedom of Information Act, they enabled Mr. McClintock to pinpoint key developments in the Guatemalan security apparatus. A 1974 document de-

Ending War Crimes, Chasing the War Criminals

scribed the Centro Regional de Telecomunicaciones at Guatemala’s principal presidential-level security agency working with a “high-level security/administrative network linking the principal officials of the National Police, Treasury Police, Detective Corps, the Presidential House and the Military Communications Centre”. This organisation had built up a sophisticated filing system, listing anyone who might be a potential leader of anti-government movements or a critic of the government. Amnesty also knew from reliable sources that the agency was directed by the joint head of the presidential general staff and military intelligence Major Hecht Montalvan. How could Amnesty confirm, however, that the organisation was something more than a records agency? The research team answered by pointing to the lines of command under Major Montalvan, which led directly to some of the killings described above, the capture by dissidents of papers on agents they had overpowered, and denunciations from people who were well known and trusted and who had friends and relatives who worked in the presidential palace. Montalvan’s headquarters was situated in the presidential guard annexe to the National Palace, adjoining the presidential house. I walked around it. Next door, innocently sandwiched into the same block, is the office of the Obras Pontificias Misionales (Roman Catholic missionaries). For a moment I assumed I was at the wrong building, but only yards further on a soldier peered over a balcony and caught my eye; and to his right a television camera monitored the street. On top of the roof were three large telecommunications masts and around the side of the building was the main entrance. In this side street, which on the other side had the door to the president’s house, heavily armed soldiers stared at passers-by. Cars with foreign plates or without licence plates at all were parked alongside. A slip of the tongue in a later conversation confirmed that this was indeed the centre of intelligence operations. I was interviewing the head of press information of the army, Major Dominguez. In an aside, he told me he knew that a distinguished Social Democrat politician had been bumped off by a rival. I asked him how he knew. “You see, I used to be military intelligence. But don’t tell anyone or the guerrillas will kill me.” As casually as I could, I said: “Oh yes, you had your office in the presidential annexe.” Surprised, he nodded: “Yes, but remember, don’t tell anyone what I’ve told you.” My loyalty to secrecy in such a situation is, I regret, non-existent. The only task left to do was to confirm the Amnesty investigators’ conviction that the intelligence operation did do the killings. Since in Guatemala it is impossible to talk to anyone about politics frankly, I flew to Costa Rica and met some of the Guatemalan exiles who live there. In the relaxed atmosphere of this green and pleasant land – Costa Rica has been democratic for all but a year since it gained its independence from Spain in 1821– it was possible to talk to people who underlined Amnesty’s findings. Frustratingly, they were still secondary sources. They insisted that they knew soldiers or officials who had links with the intelligence agency. But only one person I met said he had sources right within the heart of the operation centre.

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Some of them knew Elias Barahona y Barahona, who had been the press spokesman of the minister of the interior until he resigned in September 1980. He had told them (and Amnesty had his statement) that blank letterhead stationery of the alleged “death-squads” Ejercito Secreto Anticomunista and Escuadron de la Muerte was stored in the office of the minister of the interior. According to him, the lists of people to be eliminated were prepared from the records of military intelligence and the national police. They included the names of trade union leaders and peasants provided by the Department of Trade Unions, by the Ministry of Labour and by a number of private enterprises. He also said that an officer in military intelligence had told him that the definitive lists of those to be killed were approved at meetings attended by the ministers of defence and the interior and the chief of the general staff of the army. Again, it could be argued that this was still a secondary source. Neither Amnesty nor I were able to talk directly to people involved in the command structure of the intelligence agency. A visit to Washington, DC, however, brought me close to doing so. I called on General Lucas’ former vice-president Francisco Villagran Kramer, now living in exile in the USA. He had just finished reading the Amnesty report, and although it had been written without any consultation with him, he said it was “absolutely accurate”. While he was in power, he said, he learnt how the system worked and was in no doubt that the overwhelming majority of killings were decided in the presidential palace. Nevertheless, he argued that the independent death-squads do play a role, a point which Amnesty in its report seemed to play down. Whenever he wanted to intercede on behalf of a person who had “disappeared”, he went to one of three persons – Montalvan, the chief of the president’s staff and of intelligence, the army chief or the minister of the interior. These were the three, working through Montalvan, who were responsible for deciding who should be picked up and killed. The fact that Villagran was successful half a dozen times proved to him that those arrested were in the hands of those under their command. There was also the telling fact that others who had been picked up in the same swoops never reappeared. His conclusion was reinforced by the scores of army officers who came up to him privately and said: “Mr VicePresident, you’re a friend of so-and-so. Do your best to get him out”, or “Let him know they’re after him”. Only if the army were intimately involved in the assassinations could this happen. There was even a man known to him personally, Villagran told me, who was phoned by President Lucas himself and told to get out while the going was good. Although ideological opponents, they were old school buddies and the president was moved to short-cut the normal process of his governmental machine. The final piece of evidence presented by Villagran was the information given to him by a military officer. According to Villagran, he was senior enough in the military hierarchy to know how the system functioned. Back in Guatemala it became difficult to keep a sense of perspective and to remember that the deaths were not simply a total to be compared with, say,

Ending War Crimes, Chasing the War Criminals

deaths in neighbouring El Salvador. Moreover, conversations with senior army officers and government officials quickly lulled one into false feelings of security. Their hospitality and bonhomie was disarming. Often enough, probing questions were turned aside graciously and without rancour. Of course, they did not have much to do with the soldiers and intelligence officials who actually carried out the tortures and killings. They gave the orders and the lower ranks implemented them. Blood never touched their hands: it was an antiseptic world that allowed them to make their decisions with the required single-mindedness and ruthlessness. After a morning of such meetings, I decided to drive the 140 kilometres from Guatemala City to Lake Atitlan, a silver sheen of water lying below three cloudcovered volcanoes. I chartered one of the local fishing boats. It took 80 minutes to reach the village of Santiago Atitlan on the far side. Described by one tourist I had talked to as a “Shangri-La”, it certainly gives that first impression. Small houses, inhabited by Indians, rise up the hillside from the water’s edge. The men were dressed in broad-striped white trousers cut off just below the knees, the hems decorated with coloured birds laboriously embroidered by their womenfolk. The women had skirts, blouses and shawls of an intricate weave, combining deep reds, browns and yellows, so that when, as I arrived, they poured out of the village church after a mass, there was a riot of colour down the street to the water’s edge. I found the American missionary father, an elderly man, who told me he was standing in for the young parish priest who had returned to the United States after the governor of the province had warned him that his life was in danger. Six months earlier, 25 Indians had been murdered. Four of them ran a small radio station established by the parish; the others were active in the agricultural co-op. “Anyone who shows any leadership potential gets wiped out”, the priest told me – an opinion that echoed the Amnesty report. Did Amnesty itself have any influence? Superficially, one could say, quite the reverse. The killings escalated after Amnesty sent its mission to Guatemala in 1979. Francisco Villagran, for one, felt that Amnesty’s pressure in the short run might have been counter-productive. Government officials were obsessed about Amnesty, hardly letting a week go by without denouncing it, just as they made President Carter’s human rights policy an object to be scorned and repudiated. Yet over the long run Amnesty may have been more effective than Carter, who liked to see himself as the “human rights president”. For many years, because of the pressure on Washington from Britain, worried about Guatemalan threats to neighbouring Belize, there had been a gradual reduction of arms sales to Guatemala. By the time Carter and his restrictive arms sales policy came on the scene, Guatemala, not having much left to lose, itself decided it would be better off with US arms. Apart, then, from resisting suggestions from the US embassy to try and woo the Guatemalans to better behaviour by dangling the possibility of renewed arms sales and counter­insurgency training, Carter’s pressure did not add up to very much. The occasional critical speech and an attempt, which Guatemala resisted, to send them a liberal ambassador was the sum of it.

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Amnesty, on the other hand, had succeeded in alerting a wide constituency to the violence and horror of Guatemala. To take one example, on the basis of Amnesty reports, church, liberal and union groups in Europe mounted a boycott action over the behaviour of the local bottler of Coca-Cola. In the United States, where the threat of such a boycott was obvious, US labour, liberal and other groups held talks with Coca-Cola management, and eventually put sufficient pressure on the company to force it to buy out its franchise holder on human rights grounds. The manager, apparently, was a personal friend of Colonel German Chupina, director of the national police, and allegedly would simply ring him up if he had a labour problem, and the security forces would be sent in to eliminate the leadership of the local union. (Several union secretaries-general are said to have been killed in this way.) The publicity produced by the CocaCola affair in Europe and the United States, together with other reporting, often Amnesty-inspired or at least containing a hard core of Amnesty facts and figures, created an atmosphere that hurt Guatemala economically. Press reactions to the Amnesty report on Guatemala, following its publication in February 1981, make one understand why the Guatemalan government felt it was the victim of a co-ordinated and widespread attack. The report received blanket coverage: two articles I wrote on the editorial pages of the International Herald Tribune and the New York Times, a front-page report in the London Times and Mexico’s Excelsior and a long article in the Economist. One can perhaps forgive the outburst of the Secretary for Public Relations of the Presidency who told the Guatemalan City daily, El Imparcial, that Amnesty “had set out to undermine the prestige of Guatemala’s institutions and headed up an orchestrated campaign to damage the image of Guatemala for the simple reason that its government is not disposed to permit the activity of international communism”. The consequence of this kind of bad publicity – there had been a lot before – was that the bottom fell out of the tourist market, once the third largest export earner. Nor was there much foreign investment. A number of US banks closed down their Guatemalan offices, although publicly they gave non-political reasons for doing so. None of this, it must be admitted, had any discernible impact on the government’s thinking, so single-minded and determined was the regime. Nor did it influence the Reagan administration in Washington, but it did give a great deal of succour and support to the opposition. All of the exiles I talked to gained an enormous psychological boost from the Amnesty campaigns. Here they were, citizens of a small country, vulnerable and expendable, being given international attention. Although, unlike other countries where governments hold people prisoner rather than kill them, it was impossible to mount campaigns to release people, the Amnesty publicity did give a sense of assurance to those who were determined to bring about a major change in government policies. A few years later, in June 1984, I returned to Guatemala, anxious to see if the work of Amnesty had had a cumulative effect. It clearly had not. The Guatemalan government cared nothing about its pariah image in most of the world.

Ending War Crimes, Chasing the War Criminals

As long as its relationship with Washington was reasonably good – and with Ronald Reagan as president it was more than that – it felt it had nothing to worry about and had all the latitude it wished for to do what it believed had to be done. The new president of Guatemala, General Rios Montt, visited Washington. “We have no scorched earth in Guatemala”, he said in an official address, “only scorched communists”. In fact, at this time tens of thousands were killed in the counter-insurgency campaign. In July 1982 Amnesty published a paper entitled “Massive Extrajudicial Executions in Guatemala’s Rural Areas”. In official Washington no one cared, although the New York Times published an editorial saying that if even 5 per cent of what Amnesty was saying were true, it would be a scandal. Reagan was obsessed with communist influence in Central America, to the point that most moral considerations were ruthlessly relegated to the back-burner. Reagan felt it was essential realpolitik. As he said on more than one occasion, the close relationship between the guerrillas of Central America and Moscow (never proved) and Havana meant that the red legions (wherever they were supposed to come from) were “only two days’ drive to Harlingen, Texas”. The Reagan administration persistently tried in its early days to persuade Congress to lift its embargo on military aid to Guatemala (imposed in 1977). It finally gave up after two Guatemalans who were working for the US Agency for International Development in a local project were assassinated. Only in 1985 did it finally manage to persuade Congress to allow military aid to go through, although it is suspected the CIA continued to keep the pipeline open all along. (And Washington actively encouraged right-wing regimes in Argentina, Israel, Taiwan and South Africa to keep the arms flowing.) On this trip I decided to retrace the steps of my previous journey to Santiago Atitlan. There had been fragmentary reports of clashes between the guerrillas, and the army and I wanted to reconnoitre the terrain first-hand. I decided to walk the 107 kilometre circumference of the lake, following Indian paths that sometimes took me along the fertile, low-lying lakeside strips, carefully terraced, growing onions, tomatoes, cabbages and avocados in profusion. Sometimes they veered high up in the mountains, where steep cliffs and impossible gorges made cultivation possible only on the upper slopes. In fact I saw nothing, apart from realising that this was perfect guerrilla country where hideaways would be hard to discover. No one wanted to talk, apart from the Catholic missionary priests with whom I lodged at night. They told me of what had happened to the young priest I had heard about in Santiago Atitlan on my previous visit. About six months later he had returned from Oklahoma and, true to all his fears, had been murdered. Violence hung in the air. The priests feared it, both for themselves and for their parishioners. They said at the moment things were quiet but it could not last. They were right. Over the years there were many clashes between guerrillas and the army. Nine years later, in December 1990, the army opened fire on a village protest march in Santiago Atitlan, killing 11 people.

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Only as late as 1995 did the beans of Guatemala come to be spilt. The trigger was a Congressional enquiry into the circumstances surrounding the murder of an American hotel owner in Guatemala. Richard Nuccio, a State Department official, surprised everyone with his frank testimony that the CIA had been aware all along about this, and other political killings in Guatemala. The CIA, he said, had in fact been present in Guatemala, contrary to official US policy, all through the 1990s. President Bill Clinton immediately announced he was opening an investigation to find out why and on whose authority the CIA had been present. Yet the White House did nothing to protect Nuccio, who, having lost his highsecurity clearance, found himself jobless. Over the next couple of years more US diplomatic cables and intelligence were declassified. But a breakthrough in getting the full picture did not come until April 1999, when the UN-appointed Guatemalan Commission for Historical Clarification presented its report to Secretary-General Kofi Annan. (The report received most of its financial underpinning from the US and European countries.) A peace agreement between the government of Guatemala and the principal revolutionary movement, the Unidad Revolucionaria Nacional Guatemalteca, signed in Oslo in June 1994, along with Clinton’s decision to open American archives, had made it possible to delve into what had really happened. The Commissioners wrote in the preface that although before they came to write the report “we knew in general terms the outline of events … none of us could have imagined the full horror and magnitude of what actually happened”. The Commission estimated that the number of persons killed or who “disappeared” “as a result of the fratricidal confrontation” reached a total of 200,000. Seven per cent of the acts of violence were attributable to the guerrillas, 93 per cent to the state. Both the guerrillas and the established institutions of government were blamed for the intensity of the insurgency, the guerrillas for receiving “political, logistical, instructional and training support from Cuba and for treating those who sought to remain distant from confrontation with profound mistrust and even as potential enemies”; the state, for its part, was condemned for its “repressive response, totally disproportionate to the military force of the insurgency ... At no time did the guerrilla groups have the military potential necessary to pose an imminent threat to the State ... The State deliberately magnified the military threat of the insurgency ... The vast majority of the victims of the acts committed by the State were not combatants, but civilians.” Worst of all, “a large number of children were among the direct victims of arbitrary execution, force, disappearance, torture and rape, often [being beaten] against walls or [thrown] into pits where the corpses of adults were later thrown. A quarter of all victims were women.” Much of the report reads like an Amnesty report written years earlier, not least in its pinpointing of the supreme role of Guatemala’s intelligence system in being “the driving force of a state policy that took advantage of the situation resulting from the armed confrontation, to control the population, the society, the state and the Army itself”. The majority of human rights violations occurred

Ending War Crimes, Chasing the War Criminals

with the knowledge or by order of the highest authority of the state, the Commission concluded. The report’s condemnation of US involvement, however, is perfunctory, merely alluding to how “US military assistance was directed toward reinforcing the national intelligence apparatus and for training the officer corps in counter-insurgency techniques, key factors which had significant effect on human rights violations during the armed confrontation”. (It omits to mention that for much of the time this military aid was never approved by the US Congress.) Nevertheless, it was enough to prompt President Clinton to make a public apology during a visit to Guatemala in March 1999 for past US involvement in abuses. At a forum with Guatemalan leaders, Mr. Clinton said: “For the United States, it is important that I state clearly that support for military forces and intelligence units which engaged in violence and wide­spread repression was wrong.” And it led the Washington Post to editorialise: “We Americans need our own truth commission.” Yet, if it was not for independent work done by the non-governmental organisation the National Security Archive, we would still be in the dark as to what went on, particularly during the Reagan years, when human rights abuses sharply escalated. The Reagan administration’s ambassador to Guatemala, David Chaplin, often prompted his Washington superiors as to what was going on in the country. If less exacting than Amnesty, his embassy’s monitors recorded much of the horror of the time. 4 In February 1984, only one day after Chaplin had sent one of his regular cables to Washington alerting the State Department to Guatemalan government involvement in recent abductions, he was taken aback to hear that the Assistant Secretary of State for Human Rights, Elliott Abrams, a Reagan hard-hue appointee, had signed off on a secret report to Congress in which he had argued that human rights were improving in Guatemala and that Congress should no longer be inhibited about a resumption of US security assistance. Abrams wrote: .

The Mejia government has taken a number of positive steps to restore a constitutional, electoral process and to address the practice of extra-legal detention … Failure to provide some politically meaningful sign of support for the efforts being undertaken to return the country to democratic rule and to reduce the human rights violations, will only increase the chance of further political instability. In addition, the US has other strong interests in Guatemala and the region which necessitate a solid, bilateral relationship, including a positive relationship with the Guatemalan military.

4

In March 2000 Nuccio, a high ranking CIA official dismissed in 1995 for failing to inform Congress about CIA ties to a Guatemalan colonel linked to over 100 murders, was awarded one of the Agency’s highest honours, the Distinguished Career Intelligence Medal.

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Typical of the State Department cable traffic of the early Reagan years is a cable that reads: “If General Lucas Garcia is right and the government of Guatemala can successfully ‘go it alone’ in its policy of repression, there is no need for the US to provide the government with redundant political and military support.” All during the Reagan years the bureaucracy of the State Department’s human rights division waged a ferocious propaganda war of its own to discredit the human rights lobbies. One confidential State Department cable, dated October 1982, observed: “After analysing human rights reporting from Amnesty International, the Washington office on Latin America, the Network in Solidarity with Guatemala and the Guatemalan Human Rights Commission, the US Embassy [in Guatemala City] concludes that a ‘concerted misinformation campaign’ is being waged against the Guatemala government in the United States, by groups supporting the Communist insurgency in Guatemala.” The cable accuses the groups of assigning responsibility for atrocities to the army without sufficient evidence, abuses which may never have occurred or may have been propagated by the guerrillas. While the cable concedes that the army has committed violations, it concludes that many of the accusations of the human rights groups were unfounded and that their sources are highly questionable, since they come from “well-known communist front groups”. A month before, Abrams’s predecessor as Assistant Secretary of State for Inter-American Affairs, Thomas Enders, had written to the head of Amnesty’s Washington office arguing that “many of the incidents [mentioned in the 1982 Amnesty report on extra-judicial executions in Guatemala] cannot be corroborated by other sources such as the press, the army, the police or intelligence information. In fact, the town where one incident allegedly took place ( Covadonga) doesn’t appear on any map of Guatemala available to the embassy.” Amnesty’s Guatemalan researcher later said it was “a marvellous occasion” when during a briefing for a visiting delegation from the Organisation of American States ( OAS) she could point to the village on the big map she had brought from her office. It was also a sweet if modest revenge when these same activists from nongovernmental organisations could call a press conference in Washington on 20 May 1999 and disclose the existence of an internal log-book compiled by the Guatemalan military that was a detailed record of its death-squad operations. The army log revealed the fate of scores of Guatemala citizens who were “disappeared” by security forces in the period between August 1983 and March 1985, precisely the period when Elliott Abrams had testified that things were getting better. Replete with the photos of hundreds of victims and coded reference to their executions, the 54 page document was smuggled out of army intelligence files and put into the hands of human rights advocates. How change finally came to Guatemala is not easy to document. It was almost imperceptible. It had many turns and setbacks along the way. Some highlight the end of nearly 20 years of military rule in January 1986. Incoming President Vinicio Cerezo Arevalo immediately committed his government to returning the country to the rule of law. Briefly, there was an improvement, but

Ending War Crimes, Chasing the War Criminals

not many months elapsed before Amnesty noted that “Guatemala is now experiencing a steady escalation in human rights violations”. The death-squads, maybe no longer under direct presidential authority, were still active and still in the main composed of police and military agents. Indeed, the amnesties granted by the outgoing military government and then by President Cerezo’s government appeared to have facilitated further human rights violations. It was not until 1993 that Guatemala began to face both its own dark history and the fact that it had isolated itself from a majority of world opinion. Most important, it no longer had an ear in Washington. The turning-point was President Jorge Serrano Elias’ (Cerezo’s successor) inauguration who promised to clean house. But continuing human rights violations, acts of violence in Guatemala and his attempt to seize dictatorial powers enraged Guatemalan public opinion and it turned even the army against him. Into the presidency in 1993 stepped a wellrespected governmental human rights advocate, Ramiro de León Carpio. Again, despite its initial promise, the military continued to be recalcitrant and there were a series of high-profile assassinations. Importantly, however, the government signed an accord with the guerrillas, paving the way for a United Nations human rights monitoring team. Carpio also, it can be said, paved the way for his successor, Alvaro Arzu to negotiate a peace settlement with the guerrillas. The peace accord was signed in December 1996. Arzu brought solid progress with a series of land, fiscal and constitutional reforms. He established a fund to help the poor buy land. Arzu also sacked 13 of the 23 generals and replaced them with younger officers. Yet by the end of his term of office it was clear that his reforming zeal had run out of steam. Why, exactly, the situation changed for the better in the 1990s is hard to pinpoint. It was more the confluence of events than any single person, either in Washington DC, or in Guatemala City. With Reagan’s term of office at an end and the Cold War winding down, there was certainly a new way of looking at Central America in Washington. The new president, George Bush, had moved quite quickly, once in office, to end the polarisation in neighbouring Nicaragua and the clandestine support, against the wishes of Congress, for the right-wing guerrillas, the so-called “Contras”. This change of direction also sent a clear signal to the military in Guatemala that Washington would not for much longer turn a blind eye to atrocities, although there is no doubt the Bush administration did continue clandestine military support. Parallel with the change of mood in Washington, but also influencing it, was the Soviet President Mikhail Gorbachev’s decision to withdraw Soviet military and economic support for Cuba. This rapidly led Havana to cut back its support for the guerrillas in Guatemala. Yet beside these major currents of realpolitik there was, within Guatemala itself, the process of a generational change. Both in the military and in business, younger elements wanted to end Guatemala’s isolation and become accepted by the world outside. At the same time, the ageing guerrilla leadership was attracted by the idea of being welcomed into mainstream politics. The vision of

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perpetual guerrilladom, ensconced in some hideaway, part sun-baked, part rain-sodden, depending on the season, had less allure as the years slipped by. Under Alvaro Arzu Guatemala had a government, democratically elected, that claimed it wanted to put the past behind it. Centrally directed governmental activism in death-squad murders appeared to be quiescent. Nevertheless, dissatisfied groups, in or close to military intelligence, still took their revenge, whenever they could – as with the brutal murder in 1998 of Bishop Juan Gerardi, who had led the Catholic Church’s major project to attempt to document all the human rights abuses over the previous 20 years. The government, moreover, had been cautious in its welcome of the recommendations of the United Nations Historical Clarification Commission. President Alvaro Arzu made the decision not to receive the report directly, although the previous year he did seek the pardon of the Guatemalan people in a special “Day of Forgiveness”. Despite the Commission’s charge that the Guatemalan army perpetrated genocide against the country’s indigenous people, the government, according to Amnesty, has responded to only about half of the suggestions put forward by the Commission and made few, if any, concrete commitments. The elections of November 1999, the first since the formal end of the 36 year civil war, did not at first sight appear to realise the promise of the peace accords. Indeed, the result appeared to be a set-back for those who thought the peace process might accelerate. The victor was Alfonso Portillo, candidate of the right-wing party, the Guatemalan Republic Front. Although a left-winger, a scholar of Marxist thought in his youth, who spent much of the war in exile in Mexico (where, he admitted, he had shot two men to death 17 years ago – in what he says was self-defence – in a brawl), he ended up attaching himself to the party created by the brutal ex-dictator Gen. Efrain Rios Montt. A sign of hope was his speech at his swearing-in on 14 January 2000, when he said that the failure to find the killers of the murdered bishop was a “national disgrace”. He said he would ensure the murder was solved, no matter where the trail led. A week later, in fact, the police arrested two military officers, a father and son, colonel and captain, and charged them with the killing. Then in June in a statement President Portillo admitted the state’s responsibility for atrocities during the civil war and vowed to prosecute those responsible. “We are doing this today so that the dramatic history we have lived through isn’t repeated”, he said. It was not until 1996, under President Alvaro Arzu, that the death squads were finally dismantled. But the momentum towards observing human rights had slowed under his successor, Alfonso Portillo (who was indicted by the US for money laundering and embezzlement). But his successor, Oscar Berger, pushed down on the throttle. The security forces were cut by half. He installed a tough human rights campaigner as ombudsman. Still, such was the danger from freelance rightists, activists continued to fear for their lives. Under President Otto Perez Molina who took office in January 2012 the former dictator, Efrain Rios Montt, who ruled for less than two years when he was overthrown in a military coup, was brought to trial and convicted of crimes

Ending War Crimes, Chasing the War Criminals

against humanity and genocide. At the age of 86 he was sentenced to 80 years in prison. (Presumably his predecessor, General Lucas Garcia, if still alive, would have been tried too.) Ironically, such are the twists and turns of Guatemala’s Byzantine politics, there is serious evidence that Perez Molina, a former military officer, was involved in the same killings as Rios Montt. A vigorously independent minister of justice, Claudia Paz y Paz who was appointed by Molina’s predecessor, Alvaro Colom, Guatemala’s first left-leaning president in 53 years, remains in office. A former human rights lawyer, this tough, no-nonsense woman has put a number of notorious drug dealers and human rights criminals behind bars and indicted Rios Montt. Moreover, her rigorous policies have helped lower the horrendous crime rate, one of the world’s three worst. However, she cannot consider President Molina’s case as while president he has immunity from prosecution. During the time of the trial of Rios Montt, Molina denied that there had ever been genocide. Rios Montt was convicted of ordering the deaths of 1,771 people of the Maya ethnic group. He was sentenced to 50 years for genocide and 30 years for crimes against humanity. It is the first time a former head of state had been found guilty of genocide by a court in his own country. Prosecutors said that he had presided over the war’s bloodiest phase. They said he turned a blind eye as soldiers used rape, torture and arson against those suspected of supporting leftist rebels. The trial, although ordered by Paz y Paz, partly came about because after the Inter-American Court of Human Rights ruled in 2004 that genocide had occurred in Guatemala and that the Rios Montt regime was responsible for it. Also an international arrest warrant had been issued by a Spanish judge in 2006. Both these events helped change the political and judicial atmosphere. Interestingly, Rios Montt barely mentioned the United States when he put forward his arguments in his defence. But, as the New York Times reported, “Washington’s alliance with him was not forgotten in the giant vaulted court room where the current American ambassador, Arnold Chacon, sat as a spectator in a show of support for the trial”. (Chacon was appointed by the administration of President Barack Obama.) Back in 1983, Elliot Abrams, assistant secretary of state for human rights under Ronald Reagan, once suggested that Rios Montt’s rule had “brought considerable progress” on human rights. He also declared that “the amount of killing of innocent civilians is being reduced step by step”. Abrams was defending the administration’s decision to lift an embargo on military aid put in place in 1977 by President Jimmy Carter, Reagan’s immediate predecessor. Under Reagan, embassy officials had trekked up to the scene of massacres and reported back to Washington the army’s line that the guerrillas were doing the killing. According to de-classified diplomatic cables, over the next two years USD 15 million in vehicles, spare parts and arms from the US reached the Guatemalan military. There was military training too. Congress re-imposed the ban in 1990 but clandestine aid continued. More aid came from US allies such as

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Israel, Taiwan, Argentina and Chile. (The latter two ruled by military dictatorships that had carried out terrible human rights abuses themselves.) This secret aid continued under President George H.W. Bush Senior and the early years of President Clinton. In the 1990s the American government revealed that the CIA had been paying top military officers through the period. An international team of prosecutors – the UN-supported International Commission Against Immunity in Guatemala (financed in good part by the US) – invited in by Attorney-General Claudia Paz y Paz, documented high level corruption going right up to and including President Perez Molina. He was accused of a massive customs fraud network in which corrupt businesses paid bribes in exchange for lower import duties. (Paz y Paz was named by Forbes magazine as “one of the five most powerful women changing the world”.) Paz y Paz persuaded Congress to strip the president of his prosecutorial immunity. Three days later he stepped down. Later that evening he was detained in prison. (Since April 2015 a total of 14 cabinet ministers have resigned, saying they had been “let down” by the mounting evidence against the president.) Perez Molina remains in prison awaiting trial. In January 2016, Jimmy Morales, a well-known actor in Guatemalan films, became president. Some have accused him of having close and unhealthy ties with the military. He has denied that genocide occurred.

Ending War Crimes, Chasing the War Criminals

8

Bangladesh – A Country Looks Backward

Bangladesh has a population larger than Russia or Japan – what happens there always has a great impact on the surrounding nations, in particular India. Apart from Cambodia and Guatemala, it is the only country to have conducted a war crimes trial for events that were over and done with before the ICC and the other sister international courts were created. The men arraigned in 2013 before the International Crimes Tribunal in Dhaka, the capital, were tried for crimes committed in 1971 during Bangladesh’s war of independence from Pakistan. The defendants were accused of genocide, mass murder and attempting to exterminate whole groups of people. The trial provoked the worst political violence for 42 years. The war was an extremely bloody affair with Pakistani troops from the western part of the country brutally attempting to repress the uprising in the eastern part. Soldiers massacred civilians, burned villages and sent millions fleeing to neighbouring India. Some say the death toll was over one million. A disproportionate number were the minority Hindus who were particularly targeted by the extremist Islamist movement, Jamaat-e-Islami, whose leaders were put on trial in 2013. American foreign policy conducted by President Richard Nixon and his chief foreign affairs advisor, Henry Kissinger, had no compunction about supporting the authorities in western Pakistan. Prime Minister Indira Gandhi of India called upon Nixon to tell Pakistan’s leaders to stop the killing. Nixon, urged on by Kissinger, rebuffed her. Instead, the US sent military planes, tanks and massive troop-carriers and other arms to Pakistan and deployed a naval task force to the Bay of Bengal to intimidate India. Illegally, they provided the arms to Pakistan despite their being a congressional prohibition on such transfers. They also sent fighter planes via Jordan and Iran, in the face of objections from both the Defence and State Departments. In his book The Blood Telegram, Gary Bass observes: Nixon and Kissinger bear responsibility for a significant complicity in the slaughter of the Bengalis. This major incident has been whitewashed out of their legacy – and not by accident. Kissinger began telling demonstrable false-

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hoods about the administration’s record just two weeks into the crisis, and has not stopped distorting the truth in recent years. The two of them have left us a farrago of distortions, half-truths and outright lies about their policy towards the Bengali atrocities.

It was left to India which did not have the option of ignoring the slaughter, to stop it, by aiding the Bengali fighters and giving refuge to the massive number of refugees (with barely any aid from the rest of the world). Nixon and Kissinger were well aware of the degree of slaughter. Their own diplomats in Bangladesh told them about it. Twenty of them, including the consul-general, sent to Washington a dissenting “Blood Telegram” condemning US policy. Such open dissent has been a rare, perhaps unique event in the annals of American diplomacy. The telegram was signed by almost every diplomat in the US mission in Dhaka. Archer Blood was the consul who sent it to his superiors in Washington. He, as his staff, was totally sickened by what he saw and the silence of the State Department and the White House. In one earlier telegram Blood has described the situation as “Selective Genocide”. The consulate’s estimate, along with the CIA’s, was that 200,000 Bengalis had died so far. The US ambassador to India visited the Oval Office to tell the president face to face about it being genocide. The reason for the administration’s silence was obvious. Nixon enjoyed his friendship with Pakistan’s military dictator, General Muhammad Yahya Khan who was helping set up the top secret opening to Mao Zedong’s China. He provided a plane for Kissinger who was transported in utter secrecy to Beijing. The White House did not want to see the Pakistani boat rocked. It was Mrs. Indira Gandhi, prime minister of India, who ended the slaughter by sending into the eastern breakaway province Indian troops who routed the Pakistan soldiers air lifted in from the West. The Indians presented this as a humanitarian move. It was. Mrs. Ghandi had been revolted by what she saw on a visit to the refugee camps India had set up on its side of the border. But it was also worried about Bengali militants who could become a subversive force within India itself. They were melting into the Bengali population of India. Stupidly, Yahya had decided to fight on two fronts. On 3 December 1971 Pakistan’s air force launched coordinated surprise attacks on India’s major northern airfields. Mrs. Gandhi told Indians on the radio that “today the war in Bangladesh has become a war on India”. Secret, but recorded conversations between Nixon and Kissinger tell that the two had persuaded themselves that the reason for the war was that India had provoked President Yahya. Kissinger told his senior colleagues in the Situation Room that “I’ve been catching unshirted hell every half hour from the President who says we are not tough enough [on India]”. Kissinger rhetorically asked Nixon: “When have these bastards ever supported us?” Nixon replied: “Never.” The US ambassador to the UN and later president George H.W. Bush said he found Kissinger paranoid and out of control. “Henry is very excitable, very emotional.”

Ending War Crimes, Chasing the War Criminals

No notice was taken of the recommendations made by Blood and his colleagues. India waged different campaigns in the east and the west. In the east, India fought a rapid war for the independence of Bangladesh, rushing to Dahka before the UN Security Council had time to vote to stop them. But on the western front is was a tougher battle. Pakistan felt it had the wind behind it since the US made clear its support. But India gained the upper hand, closing Pakistan’s ports and cutting off new supplies. Its air force went to town almost literally, bombing airports and military installations in Karachi and Rawalpindi. The war escalated quickly with both sides seizing territory after terrifying battles. Meanwhile, Nixon who never had paid attention to international law ordered his UN ambassador to condemn India. Although the Soviet Union vetoed in the Security Council a vote demanding India withdraw, in the General Assembly 104 countries voted for a cease-fire and withdrawal. India was abandoned by its friends from the Non-Aligned Movement. “It is aggression that is wrong”, said Nixon, leading the UN chorus. “That’s what the UN is built on.” But still the US refrained from condemning West Pakistan’s aggressive atrocities in the East. (Neither did the US stop waging aggression in Vietnam.) Nixon secretly asked China to mass its troops on the Indian border. “Damn it”, said Kissinger, “I am convinced that if the Chinese start moving the Indians will be petrified”. Nixon also squared off with Moscow. He sent a message to Brezhnev warning that the Soviet support for India could “poison” their relationship and cause a “confrontation”. Kissinger later wrote that he and Nixon made their “first decision to risk war in the triangular Soviet-Chinese-American relationship”. In fact China did not do what Nixon and Kissinger wanted. In the end India emerged victorious. On 16 December the commander of Pakistan’s troops in the east capitulated. Mrs. Gandhi the next day ordered India’s guns in the west to fall silent. “Nixon was sunk in bitterness at Pakistan’s defeat”, records Gary Bass. *** It took all of 42 years to bring to trial Bangladeshi citizens who worked with the Pakistani army in that savage repression. The government believed that with a public act of vengeance against Jamaat-e-Islami, Bangladesh’s biggest Islamic party, it might inspire, as the Economist commented, “some sort of catharsis for the country”. Six have been tried and executed. Jamaat is a small party, anathema to most Bangladeshis who see it as the movement that fought with the west against independence for the east. Its tactics remain ruthless. Triggered by the sentence of death for one of its leaders in the war crimes’ trial, the party organised a killing spree in early 2013 against hundreds of thousands of demonstrators who were demanding the death penalty for all those being tried for war crimes. Within the country the trial has caused a deep political split, with the opposition Bangladesh Nationalist Party (BNP) which is allied with present day

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Jamaat saying if it wins the next election it will scrap the trial. The BNP is accused by Prime Minister Sheikh Hasina, daughter of the founding leader of Bangladesh and leader of the Awami League, of politicising the trial in an attempt to ensure victory at the next general election in 2019. Supporters say she is bent on an attempt to uphold her father’s secular legacy. Bangladesh until now has seen itself as not a country built around religion as is Pakistan. Rather it has prided itself on its secularism and its moderate Islam. A victory for the BNP led by Khaled Zia, the daughter of a previous president who came to power following a military coup, could lead to the eating away of this heritage. Unfortunately the trial itself became discredited. The government interfered in the court’s deliberations. Public discussion of the proceedings was restricted. The number of defence witnesses was limited. In one case the presiding judge resigned and the death sentence was handed down by three judges who had not heard all the witnesses. However, in September 2014 the government commuted the death sentence for one of the Jamaat leaders. For all its flaws the court has been popular among the majority of Bangladesh’s people. When one of the convicted was given a life sentence rather than the death penalty the crowds that gathered in the protest were the largest seen in Dhaka for 20 years.

Ending War Crimes, Chasing the War Criminals

9

The Pinochet Case

The arrest in London of the former Chilean strongman, Augusto Pinochet, was a bolt from the blue. Not even the most well-informed human rights supporters considered it a possibility.1 It can be said with near certainty that it never crossed the mind of senior members of the British judiciary, who were soon to be landed – quite unprepared – with untangling the legal intricacies. Indeed, it was such an impossible idea that until almost the very last moment it never occurred to the ex-dictator himself that he could be vulnerable in the very country where his great friend and supporter Margaret Thatcher had been prime minister. Pinochet’s mistake was to mention to a reporter for the America highbrow magazine the New Yorker that he would soon be in London. By word of mouth, the news reached Baltasar Garzon, an extraordinary, intelligent and diligent Spanish magistrate, who had already made a reputation for himself in Madrid by hounding Felipe Gonzalez, the former socialist prime minister, for having been party to the use of a police cell to assassinate leaders of the violent Basque independence group ETA. Garzon, not a member of Amnesty, but one who had been influenced by their public campaigns, was a man seized with a mission – to put behind bars those in Chile and Argentina who had led the military coups and the bitter repression that followed. The climate was right. In the summer of 1998, 120 nations of the world had given their massive approval (with only seven opposing or abstaining, including the USA, China and Israel) to the creation of the International Criminal Court, to enable those accused of “crimes against humanity” to be tried and, if convicted, sentenced. In Britain, too, here had been a change of government and the Conservative Party, natural allies of Pinochet, were out of office. Pinochet had visited London many times before, receiving red-carpet treatment, especially by the Ministry of Defence, and invariably been invited home for a drink or tea by Margaret Thatcher. This time he was the guest of a British arms maker, Royal Ordnance, and the Foreign Office arranged for him to receive 1

Amnesty had tried, but failed, on Pinochet’s previous visits to Britain to persuade the authorities to investigate the case.

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VIP treatment at Heathrow airport. Garzon seized the moment, and made a request for Pinochet’s arrest under the European Convention on Extradition. Very much against its own wishes, the Spanish conservative government felt it could not intervene to stop the application, and the relevant paperwork was passed along via the Spanish embassy to London’s Scotland Yard. Somehow Pinochet had got wind that something was afoot and, recovering from an operation on his back in a Harley Street clinic, decided to flee on the 7 a.m. flight to Santiago on Saturday 17 October 1998. But at 11:25 p.m. on 16 October anti-terrorist police officers sealed off the clinic and arrested him. The next day Margaret Thatcher attacked the police publicly for disturbing the rest of a “sick and frail old man”, while Peter Mandelson, Prime Minister Tony Blair’s closest confidant in the Cabinet, said that many British would find it “pretty gut-wrenching” if he were now to be set free. Battle-lines were firm right down the dividing line of the political spectrum, and it was now up to the courts to decide the outcome. The Pinochet affair was a momentous event in the human rights struggle. As the British lawyer Geoffrey Robertson has written in his book Crimes Against Humanity: “The great play of sovereignty, with all its pomp and panoply, can now be seen for what it hides: a posturing troupe of human actors who when off stage are sometimes prone to rape the chorus.” The rulings – first by the High Court, then by Britain’s highest court, the House of Lords (now called the Supreme Court), and later by the London magistrate – crystallised half a century’s debate on the legal and political problems of accountability for crimes against humanity. For the first time in a high court anywhere it had been decided that sovereign immunity must not be allowed to become sovereign impunity. For that we have to thank most of the nations of the world, including Chile and Thatcher’s Britain, who in the late 1980s and early 1990s, put their signatures to the UN Convention Against Torture and thus laid the legal basis for the British ruling. The doctrine of immunity was first challenged successfully by Chief Prosecutor, US Supreme Court of Justice, Robert Jackson at the Nuremberg trial of Nazi leaders. “But afterwards the notion appeared to lapse and remained for decades a talking point in university common rooms. Until the Serb and Croat blood feuding it had no practical application other than as a legal lasso for old Nazis like Eichmann”, wrote Robertson. Had Pinochet flown to New York rather than London and taken tea with Kissinger rather than Thatcher, the legal net would probably never have closed, argued Robinson. Even if he had been arrested his fate would have been determined by politics rather than law. The State Department would have probably sent the court a “suggestion of immunity”, reasoning that Chile was a friendly state and wishing to avoid the publication of details about the US role in Pinochet’s coup d’etat. Likewise, in most of Europe the issue would have been rapidly settled by the government weighing up the costs to alliances and trade, as indeed the Spanish did. But the British government, for reasons not yet totally clear, decided for most of the way to let the law take its course. In the end, however, partly bowing to pow-

Ending War Crimes, Chasing the War Criminals

erful influences, it did allow Pinochet to return home, released, the government said, on “humanitarian grounds”. The pressures upon the British government to call it a day and issue a humanitarian reprieve were immense. The law had made its point, it was said. A shot had been fired across the bows of all present and future dictators and mass torturers who will know from now on that they cannot behave like this at home and expect to travel thereafter. Pinochet is very old and his ordeal had been punishment enough. And anyway if he were sent to trial in Spain and was convicted according to Spanish law he couldn’t be sent to jail at his age. Did a humane Britain then have to insist on the coup de grace? Enough is enough. All this was to miss the main point. Pinochet’s crimes were no ordinary crimes of the maintenance of political authority in a time of turbulence. They continued until 1990, long after Pinochet announced in 1978 that the “communist threat” to Chile had ended. “The rituals of torture were intended to send horrific whispers throughout the populace”, says Robertson. Pinochet, the smiling, stately, grandfather figure, is also the man who, it is alleged, personally supervised the torture operations, with the boss of the torture unit, General Manuel Contreras, reporting daily and directly to him. He is also the man who on occasion joked that the “disappearances” had saved bereaved families the cost of coffins. The later determination made by the British government to release Pinochet on “humanitarian grounds” was arguably the most important single legal ruling that was made by any government since the decision to execute German and Japanese war leaders. Compassion cannot be offered to someone who showed not one iota of compassion to his victims. To allow Pinochet his freedom was to fudge a major turning-point in the world’s maturing understanding of jurisprudence. Seen properly to its conclusion with a trial in Spain, it would have laid down a marker for all time. No wonder that Amnesty decided that the case had to be fought practically all the way to the airport. Amnesty has been at the heart of this battle ever since Pinochet, in a military coup in September 1973, overthrew the democratically elected government of Chile and proceeded to round up, incarcerate and torture, sometimes to death, anyone he conceived might be a possible opponent. Not even pregnant women and children were beyond the reach of the barbaric apparatus of the torture chamber. It was for years a classic Amnesty case-load like any other, and not even the most far-sighted or optimistic of Amnesty staff members ever thought the day would arrive when Pinochet would appear in the dock in a court a 15 minute taxi ride from Amnesty headquarters. When the case was effectively first thrown out by the chief justice who refused the Spanish government, the plaintiff in the case, an adjournment to prepare the case and then argued that an ex-head of state had sovereign immunity for every crime he committed in exercising the functions of office, Amnesty’s legal team went into high gear. The case then proceeded to the House of Lords, and Amnesty worked hard to provide the evidence to show that recent developments in international law had not been appreciated in the lower court.

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Later, when the Home Secretary announced in January 2000 he was “minded” to allow Pinochet to be released because an examination by doctors had found him not fit to be tried, Amnesty, along with other human rights organisations and the Belgian government, challenged the British government in yet another series of High Court hearings. *** Like all good stories, one must begin at the beginning to get the measure of its full impact. During the 1960s Chile had been the special focus of US policy towards Latin America. The Alliance for Progress, begun under Eisenhower and expanded under Kennedy, provided Chile with more economic aid per capita than any other country on the continent. Even then, with an almost unbroken continuous democracy since independence in 1818, its political and economic success was held up as a model of what could be achieved in a turbulent continent of worsening income distribution, Caudillo-prone politics and continuous army intervention. But in the presidential election of September 1970 a Marxist socialist, Salvador Allende Gossens, surprised Washington by winning 36.2 per cent of the vote in the first round. The State Department and CIA analysts took it in their stride, despite the knowledge they had that in a previous election Allende had received a good amount of financial help from communist and communist-front organisations with ties to Moscow. The CIA, in a formal intelligence memorandum, observed that the US “has no vital interests with Chile – an Allende victory would not pose any likely threat to the peace of the region”.2 But President Richard Nixon and his national security advisor, Henry Kissinger, hit the roof. Kissinger was minuted as saying: “I don’t see why we need to stand by and watch a country go Communist due to the irresponsibility of its own people.” For Kissinger there was the worry that an Allende victory would send the wrong message to Italian voters, who were being wooed by the Euro-communists. Nixon, who had no time even for the incumbent Christian Democratic, but left-leaning, President Eduardo Frei gave the order that Allende must not be allowed to come to power. In a series of hectic White House meetings, every tool was considered, even a proposal to assassinate Allende. Much has been made of the role of big US corporations in getting rid of Allende. Undoubtedly ITT, Anaconda Copper, General Telephone and Electronics and Pepsi Cola were involved in the effort to undermine him, even in the latter’s case offering to put up substantial sums to supplement the CIA’s effort. For Nixon the welfare of US corporations operating in Chile was an important concern; for Kissinger much less so. But both were obsessively driven by the idea of a communist toe-hold; they had no faith that the sophisticated Chilean electorate would itself in time get rid of Allende if he went too far to the left. In fact, the 2

S. Hersh, Price of Power (Summit, 1983) p. 270.

Ending War Crimes, Chasing the War Criminals

matter was regarded as too important to be left to the American business sector. Thus, on 15 September Nixon personally gave Richard Helms (the CIA chief) the widest possible authority (“a marshal’s baton”, Helms later called it) to prevent Allende’s presidency by any means available, at whatever cost or risk of failure.3 From mid-September 1970 to mid-October a small CIA task force based in Santiago made plans that focused on the removal of Chile’s chief of staff, General Rene Schneider, who was known to be not only a staunch upholder of the Constitution but strongly opposed to military intervention. Although the US Ambassador Edward Korry came to Washington and strongly argued to Nixon himself that a military coup would not be in the best interests of Chile, and although Kissinger later claimed he had called off the CIA operation, Schneider was duly murdered by the very conspirators that the CIA had funded earlier. As Thomas Powers in his book on the CIA 4 observed, “[i]f the CIA did not actually shoot General Schneider, it is probably fair to say that he would not have been shot without the CIA”. William Bundy, a former senior foreign policy official in the Kennedy and Johnson administrations and author of the most authoritative book to date on the Nixon administration, observes: “In legal terms, a US judicial proceeding would surely have concluded that US agents (acting on presidential authority) had been at least accessories before the fact and co-conspirators in the kidnapping and thus in the killing that resulted from it.”5 The result, in the short term, was immediately counterproductive. There was almost universal outrage in Chile. Allende easily won the run-off election two days later. Nevertheless, with Schneider out of the way, it was only a matter of time before the right would strike again. Nixon stoked the furnace, cutting off all US government financial support and pressuring US corporations to cut back their interests in Chile. All World Bank aid ceased. At the same time CIA activity – fronted by the Australian secret service – was stepped up in an attempt to further the process of political and economic destabilisation. Inevitably, this worked to push Allende in an authoritarian direction. In the summer of 1973 riots broke out in Chile. The US embassy had been neutral during the turbulent weeks of middleclass rioting over the summer. But the work had already been done. Two years of severe US economic squeeze had helped produce the middle-class malaise that gave Pinochet his opening. On 11 September 1973, as commander-in-chief of the Chilean army, he ordered the bombing of Allende in the presidential palace. Defiant to the last, Allende broadcast to the nation, and then took his own life. (Pinochet’s determination to drive ahead with the coup took many of his colleagues by surprise – he was not regarded as unusually ambitious or particularly political. Moreover, he had been promoted by Allende himself, who considered 3 4 5

W. Bundy, A Tangled Web (Hill & Wang, I998) p. 201. T. Powers, The Man Who Kept His Secrets – Richard Helms And The CIA (Knopf, 1979) p. 201. W. Bundy, A Tangled Web (Hill & Wang, I998) p. 203.

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him a politically neutral general.) All along, however, the CIA had been active with an elaborate disinformation and propaganda programme which reached into the heart of the army. All the actors in Chile knew that the USA would not oppose a coup, and that was confirmed when the administration moved rapidly not only to recognise the Pinochet regime but to start talks on renewed financial help. This was despite Pinochet’s immediate decision to round up and imprison thousands of Allende supporters, including quite a few US citizens. Two years later, after thousands had been tortured, murdered and “disappeared”, Kissinger, in a conversation in Washington, told Patricio Carvajal, Pinochet’s foreign minister: “I hold the strong view that human rights is not appropriate for discussion in a foreign policy context. I am alone in this. It is not shared by my colleagues in the State Department [by then Kissinger was Secretary of State] or on the Hill.”6 Altogether about 3,000 people were executed or “disappeared” during the Pinochet dictatorship. Tens of thousands more were tortured or forced into exile. Most were leaders and members of the communist and socialist parties as well as other political and religious groups that supported or took part in the government of Salvador Allende. All through the 1970s, the pressure from abroad increased. Not only was Pinochet shunned by most foreign governments, but his armed forces were subject to foreign boycotts. The British Labour government halted its arms sales. Italy refused to appoint an ambassador, the country having been shocked to the core when Pinochet’s soldiers had dumped a corpse in the embassy garden a few days after the coup as a warning to the ambassador. In the USA, Senator Edward Kennedy won congressional backing for a halt to arms sales. Undoubtedly, outside pressure took its toll, even if progress in ameliorating the Pinochet reign was a slow and protracted business. Undoubtedly, too, it gave courage and inspiration to those within Chile who wished to see the dictatorship ended and democracy restored. Finally, Pinochet, growing old, believing he had done his job by defeating the left and making a dazzling success of the Chilean economy by importing the monetarist, free-market ideas of the University of Chicago, decided to step down. In fact, Pinochet had been aghast when, calling a plebiscite, as he had done successfully before, he had not gained a plurality. On 5 October 1988 the votes were counted and Pinochet had won only 43 per cent. Elections were called for the following year and a coalition of the Christian Democrats and the parties of the left and centre nominated as their presidential candidate the cautious Christian Democrat Patricio Aylwin. He won comfortably. On 11 March 1990, 16 years after the coup, Aylwin was sworn in. Pinochet remained, for a while, as commanderin-chief of the armed forces with a seat, guaranteed for life, in the Senate. The Senate also had nine senators appointed by Pinochet, ensuring that Pinochet could, if necessary, block the will of the government, and guarantee himself immunity from prosecution in perpetuity. 6

Official transcript.

Ending War Crimes, Chasing the War Criminals

Aylwin had the difficult balancing act of responding to a widespread feeling that amends should be made for past abuses and not alienating Pinochet and the army, whose power was still considerable. The compromise was the establishment of a National Commission on Truth and Reconciliation. It issued a meticulous report, documenting 957 disappearances. Aylwin sent each bereaved family a copy of the report with a personal letter apologising on behalf of the state. But unlike a parallel effort in Argentina, the Sabato Commission, it did not refer for prosecution those responsible. Nor did it try to attribute individual responsibility. Hamstrung by the amnesty which the military had decreed for itself before stepping down from power, the commissioners were well aware that Pinochet would mobilise the might of the army again if the government went too far. Pinochet satisfied himself with an address to military colleagues: “Its [the report’s] content reveals an unpardonable refusal to recognise the real causes that motivated the action to rescue the nation on 19 September 1973. The Chilean army certainly sees no reason to ask pardon for having fulfilled its patriotic duty.” The spell within Chile that protected Pinochet was not truly broken until his arrest and arraignment in London. Then, as the Chilean playwright Ariel Dorfman wrote: The events of the past year have drastically reconfigured the Semantics of Pinochet. His confinement, trial and public abasement have led to an extraordinary transformation of that word ‘warning’, re-signifying it. It is now the petty and grand tyrants of the world who, instead of their subjects, are filled with fear at the thought of General Pinochet ... His image has infiltrated some part of their brains, creeping into their eyes and sinews to remind them of the ominous destiny that could await them. If human rights abuses will not cease because of the general’s exemplary punishment, a subtle shift has nevertheless been verified in the way in which the world imagines power and equality and memory.

Even within Chile that change was noticeable. Clifford Krauss of the New York Times, in his dispatch of 14 October 1999, observed: The arrest of Pinochet has opened a quiet and long-postponed reckoning in Chile over its years of dictatorship that is finally bringing former military officers to task for the deaths or disappearances of thousands of political opponents.

The critical factor was the absence of Pinochet from Chile. That, combined with the embarrassing and detailed attention being cast on the past, had put the officer corps – the traditional bulwark of his power – on the defensive. Moreover, a new generation of officers had been taking over senior commands, and many of them were prepared publicly for the first time to admit human rights abuses did occur. The new army commander, General Ricardo Izurieta, was prepared to open negotiations with human rights lawyers to establish the fate of those who dis-

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appeared and to identify those officers who were responsible. In July 1998 he insisted that the military hand over to a judge a list of the names of hundreds of former secret agents, together with their code names, to aid an investigation into the 1987 killings of 12 guerrillas. The defence minister, Edmundo Perez Yoma, observed publicly in 1999 that a new attitude towards past abuses was emerging among the military high command. “You deal with it, or it will never go away. You have to confront it – that’s the changed attitude.” One important evidence of this sea-change was the decision of the Supreme Court to uphold the indictment of retired General Humberto Gordon and BrigadierGeneral Roberto Schmiedt after their arrest in September for the killing of a labour union leader in 1982. General Gordon had been a member of the original four-man junta and chief of Pinochet’s secret police. Another item of evidence was the army’s passive acquiescence to the life sentence ordered by the appeals court against Alvaro Corbalan, a former head of operations of the dictatorship’s secret police. While Pinochet was under house arrest near London, reports about the torture era had begun to appear regularly in the Chilean press. Newly reinvigorated human rights groups came to victims, first seeking testimony they could use in the courts in London and Madrid, but also urging them to seek help. Although the government, led by President Eduardo Frei, continuously argued, cajoled and attempted to hatch complex deals with both the British and Spanish governments that would enable Pinochet’s immediate return, it significantly changed its position as the months of his detention rolled by. By the autumn of 1999, one year after his arrest, it was saying that he should be tried, but in Chile. A senior Chilean judge even sent him questions about his involvement in various crimes. There was also the critical ruling by the Supreme Court in July 1999 when it upheld a ruling by a lower court that the amnesty declared by the former Pinochet regime to protect military officers involved in political crimes was no longer applicable to cases in which people disappeared. Moreover, in June 2000 the armed forces reached an agreement with the government and human rights organisations under which they would have up to a year to produce information on the bodies of around 1,000 people who disappeared. Perhaps most important, Pinochet’s arrest had brought mental release to some of the 40,000 Chileans who were tortured under his regime. “It was only when Mario Fernandez saw the headline “Pinochet Under Arrest” that the dam broke and he finally felt that he could start to put the horrors behind him. Despite the changing arguments of the Chilean government and the obvious unwillingness of the Spanish government to walk in the footsteps made by examining magistrate Garzon, the case wound its way through various levels of court proceedings in London. Geoffrey Robertson wrote that “the case became the most important test case for international law since Nuremberg”. Amnesty was intimately involved in the case, both institutionally and at the personal level, because of the scandal, as it became, of one of the law lords who ruled on the case, Lord Hoffmann. It was said he had not declared in court his membership

Ending War Crimes, Chasing the War Criminals

of a charitable branch of Amnesty International. (But it was registered in the House of Lords, for anyone who cared to ask.) The first round was held before the Lord Chief Justice Lord Bingham and two other judges. Pinochet’s lawyer won. The Crown Prosecution Service, arguing for his extradition to Spain on behalf of the Spanish state, had not only lost, it seemed the case had little future. Lord Bingham, although giving leave to appeal to the House of Lords, had concluded that Pinochet had committed the alleged offences whilst head of state and that therefore, under the doctrine of sovereign immunity, his immunity could not be challenged. The House of Lords, to most people’s surprise, overturned this judgement, deciding by three votes to two that Pinochet did not have such immunity. But 19 days later Pinochet’s defence team announced they were impugning the House of Lords’ decision on the grounds that the South African-born judge Lord Hoffmann was compromised by his association with Amnesty, an active witness in the case.7 In judicial circles it was no secret that Lord Hoffmann was an Amnesty activist. Indeed, as a lawyer, he had argued a case before the High Court about the charitable status in Britain of many of Amnesty’s activities. Not only had the House of Lords never questioned its own judgement before, but his colleagues, led by senior judge Lord Browne-Wilkinson, did so without consulting him either formally or informally. In the closed circle of the court, whose membership was only twelve, it seemed a damning personal slight and Hoffmann was deeply wounded. In a new judgement, a new group of law lords decided to scrap the previous verdict and order a new hearing. This time there were to be seven judges with the senior judge, Lord Browne-Wilkinson, presiding. In the event, the delay allowed the anti-Pinochet forces to marshal world experts on international law and to give them time to make their submission in a more substantial way. Amnesty itself, in a long and detailed disposition (it should be remembered that never before this case had a high court anywhere allowed a non-governmental organisation to file an argument on such a sensitive political matter), argued that torture was an international crime and there was no immunity. On 25 March the court agreed by a majority of six to one that Pinochet could be prosecuted. At the same time it narrowed its ruling from the Hoffmann court, stating that Pinochet’s alleged crimes could only be considered from 8 December 1988, the date by which Chile, Spain and the UK had ratified the UN Convention Against Torture and it had taken effect in British law.8 The case now passed to the Home Secretary (Minister of the Interior) Jack Straw to decide whether extradition proceedings should continue. He decided affirmatively. Again, his decision had been preceded by intense lobbying from Amnesty, who argued that it was irrelevant that the period under which Pinochet was accused of acts of torture had been reduced. Both Amnesty and magistrate Garzon had found ample examples of torture committed on Pinochet’s 7 8

For a comprehensive legal and constitutional analysis of the Pinochet hearings the reader is referred to D. Woodhouse (ed.), The Pinochet Case (Hart, 2000). It was incorporated into English law by Section 134 of the Criminal Justice Act, 1988.

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watch, post 29 September 1988. “According to the Convention Against Torture”, argued Amnesty, “even one case of torture would be sufficient to a state able and willing to try the person accused. This will be the only way to give a chance to justice, to prove that international law goes beyond the signing of treaties and to offer to victims and relatives of human rights violations in Chile an opportunity to have their claim answered after twenty-five years of waiting.” Amnesty added the point that Pinochet’s victims included 1,198 “disappeared” people. Their families will continue to suffer anguish until their fate is resolved. Amnesty, with its voluntary membership, each person donating a relatively small amount of money, was up against the apparently bottomless resources of the Pinochet legal defence team. The Independent reported that his two British lawyers, Clive Nicholls QC and Clare Montgomery QC, were charging respectively GBP 500 an hour and GBP 350 an hour and their ten back-room solicitors were costing GBP 4,500 a day. Pinochet, for his part, spent all his time, except when called before the magistrates court in October (where the validity of the extradition order was upheld), under house arrest in a fine mansion in Virginia Water in Surrey. He told a Chilean newspaper: “In this world they also betrayed Christ.” Yet, for all their financial and legal prowess, the Pinochet camp realised, as 1999 drew to a close, that if they were going to have any chance at all of winning their man’s release they had to switch tactics and pass up the appeal they lodged with the magistrates court due to be heard in March 2000. They played their last card – Pinochet’s clearly deteriorating health. Straw succumbed to their appeal and agreed to appoint a panel of independent doctors to assess whether Pinochet was fit to stand trial. Although only one of the four-person panel spoke Spanish – and Pinochet’s English was limited to a few words – they decided that recent strokes and a deteriorating capacity for understanding all but the simplest matters meant that he was probably not up to the rigours of a trial. Their verdict was submitted to Straw, who after a few days’ reflection told the House of Commons on 12 January 2000 that he believed Pinochet was unfit to stand trial and he was “minded” to allow Pinochet’s release. But, he added, he was prepared to listen to the views of interested parties. Amnesty and its colleagues went into battle once again, insisting that the medical report be made available to the parties in this case. Joined by the Belgian government, they first lost their request, renewed it and then won what they had asked for. But their efforts to allow doctors from other interested countries – France, Switzerland and Spain, as well as Belgium – to perform their own independent examinations were turned down. Then on 3 March Straw finally pulled down the curtain. He announced his decision at eight o’clock in the morning. Amnesty’s legal team perused the order and realised “within minutes” that an attempt to challenge it would fail. The Chilean government had an air force plane waiting and Pinochet was in the air by ten minutes after one. He had spent 17 months in British hands. Pinochet’s plane touched down in a Santiago air base to a red carpet, fulldress welcome from his successor as armed forces chief. Looking hale and hearty

Ending War Crimes, Chasing the War Criminals

Pinochet left his wheelchair and waved happily to the large throng of well-wishers. The doubters and cynics muttered that he looked more than fit to stand trial and that by staging such a greeting the army had once again thrown down the gauntlet to the government. But the new socialist government-in­waiting of Chile, elected on 16 January 2000 and due to take office in March, headed by Ricardo Lagos, who had been the murdered Allende’s ambassador to Moscow, promised that the end of the road was not yet reached. Only a month after his election, in an interview in the Brazilian weekly Veja, in which he was asked “Are there conditions to judge Pinochet in Chile?”, President-elect Lagos replied: “It’s my duty as president to create those conditions. Anything else would mean our democracy is a lie.” However, he also made it clear, reiterating the point on a number of separate occasions, that the matter was for the courts. Meanwhile, he said, he was going to try to persuade the Christian Democratic-led opposition, whose candidate for president he defeated by only a narrow margin, to agree to change the Constitution’s undemocratic clauses which give the army and Pinochet himself political power through their permanent representation in the upper chamber of parliament, the Senate. If he failed, said the new president, he would put the question to a plebiscite. On 2 July 2000 the Chilean Supreme Court, although comprised of a significant number of Pinochet’s appointees, lifted Pinochet’s senatorial immunity from prosecution. Ariel Dorfman commented: The past is not as easily killed as some in power would like to proclaim. The hidden light of the men and women who gave what they believed cannot be extinguished while there is one person in this world who is willing to remember and resurrect them. That is all it takes. One person crying out in the ethical wilderness, one person, and then one more, then another – that is all that is needed to keep the spark of justice alive.

In January 2001, after much legal manoeuvring, Pinochet was finally subjected to a court-mandated medical examination in a military hospital. On 17 January the results were made public. It was clear that the Chilean doctors had done a much more thorough job than their British counterparts. Indeed, Luis Fornazzari, the neuro­psychiatrist on the team, criticised his British colleagues for a lack of expertise. “The examinations carried out in London were very insufficient for a diagnosis”, said Dr. Fornazzari. The Chilean doctors concluded that Pinochet’s strokes had been light enough that there was no severe damage to the brain and he was fit enough to follow and understand the course of a trial. On 29 January Judge Juan Guzman, his interrogation of Pinochet completed, announced that he was formally charging Pinochet with murder. He was immediately confined to house arrest. The streets of Santiago erupted into song and dance. What had seemed impossible became possible. The end was in sight, they felt. Everyone, friend or enemy, soldier or ex-dissident, knew that there was a real chance Pinochet would finally come to trial. (A later decision by the appeals court narrowed down the charges to “covering up homicide”.)

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However, in July 2002, the Supreme Court dismissed Pinochet’s indictment in the various human rights abuse cases, for medical reasons (vascular dementia). In May 2004, the Supreme Court overturned its decision, ruling that he was capable of standing trial. In arguing their case, the prosecution presented a recent TV interview Pinochet had given for a Miami-based television network which raised doubts about his alleged mental incapacity. He was clearly in control of his mental faculties. In December that year he was charged with several crimes, including the 1974 assassination of General Prats and the Operation Colombo case in which 119 died. He was again placed under house arrest. On 25 November 2006 Pinochet marked his 91st birthday by having his wife read a statement he had written to admirers present for his birthday: “I assume the political responsibility for all that has been done.” Pinochet died a few days later, on 10 December – six years after the British had declared him unfit for trial – without having been convicted of any of the crimes of which he was accused. Pierre Sane, Amnesty’s then secretary-general, often mused, he told me, about how a number of fortuitous happenings had come together in the most extraordinary way to bring Pinochet to within almost physical reach of Amnesty’s headquarters. But in the end, although Pinochet wriggled free of the hook, he was but one fish, albeit a big one, in the new pond of crimes against humanity. *** For years Amnesty had campaigned for the UN Conventions on Torture and Genocide and, in recent years, for the war crimes tribunals for ex-Yugoslavia and Rwanda and, most important, for a general court to cover war crimes and crimes against humanity, the International Criminal Court.9 In the early 1970s Amnesty had had a long internal debate before moving into this more political arena. The first question to be answered was whether a broadening of the mandate would undercut the work with political prisoners. The reply to that seemed to be: in the short run, perhaps a little; in the long run, it should mean fewer political prisoners on their books, an eventuality that by the end of the millennium came to pass. The second question was this: was any other organisation more competent to campaign for such bodies? In Switzerland, there were the Committee Against Torture and the Geneva-based, longestablished International Commission of Jurists, an association of lawyers from all over the world that campaigned for a widening of the law to embrace the outlawing of torture and war crimes. But the answer to that was obvious: Amnesty was not only a world-wide organisation, it was the only one with popular appeal, 9

Although adopted by the UN General Assembly in 1948, the Convention on Genocide did not have real effect until the US finally ratified it in 1988, after a long campaign by human rights activists.

Ending War Crimes, Chasing the War Criminals

a body which when it spoke got instant media coverage and the quick mobilisation of a very sizeable membership. Perhaps Amnesty could move the rocks on the path that others had failed to dislodge. An affirmative answer to these two questions begged a third. Did Amnesty believe that present-day outbursts of ethnic hatred, and the pogroms, genocide and torture that follow, are due to leadership manipulation rather than ancient animosities? The evidence, as events unfolded in countries as diverse as Cambodia, Iraq, Yugoslavia and Rwanda seemed to be clear. In every case the combustible material was consciously set alight by unscrupulous leaders intent on consolidating and enhancing their own power, prestige and geo­political reach. It was this that had set Amnesty firmly on the path to fight for an International Criminal Court. From that moment on the risk of future Pinochets, Saddam Husseins or Slobodan Milosevics using unbridled power to squash their opponents or eliminate alienated minorities would be tempered by the realisation that they could well end up in the dock of the court. As Richard Goldstone, the former chief prosecutor for the ex-Yugoslavia war crimes tribunal, has put it, “[t] here’s only one way to stop criminal conduct in any country. If would-be criminals think they’re going to be caught and punished, then they’re going to think twice.” Already, Amnesty researchers have noted that the “Pinochet-effect”, as they call it, is working. The passage of an international law to outlaw torture from idea to convention is one of Amnesty’s most important success stories. On 10 December 1972 Amnesty launched a world-wide one-year Campaign for the Abolition of Torture. Chairman Sean MacBride called torture an “epidemic” perpetrated by regimes “to control dissent and maintain power”. Amnesty, he said, was setting itself the task of making torture “as unthinkable as slavery”. He pointed out that the Universal Declaration of Human Rights in Article 5 stipulated that no one should be “subjected to torture or to other cruel, inhuman or degrading treatment or punishment”. In his encyclopaedic book, NGOs and the Universal Declaration of Human Rights, William Korey observed that: [Amnesty’s campaign] was one of the most successful initiatives ever undertaken by an NGO. In the course of a fairly short time-frame, masses of people were involved, along with numerous NGOs, in pressuring governments and, ultimately, the UN General Assembly to brand torture among the vilest of crimes and to erect a set of institutions to combat it. The campaign was impressively orchestrated, with a variety of individual and separate initiatives integrated into the overall effort, each reinforcing the other.

Ironically, it was the coup in Chile that gave an enormous boost to Amnesty’s Campaign for the Abolition of Torture. It gave a sense of immediacy and urgency to everything Amnesty had been saying, spilling over into the UN General Assembly, which began its session only days after the coup. At that time most Third World countries were highly suspicious of “Western” critiques of their hu-

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man rights behaviour. But Allende was to many of them a heroic figure, and they suspected that the US was behind his overthrow. They willingly made use of Amnesty material in their efforts to blacken Pinochet’s name. The number of countries who addressed the subject for the first time in the General Assembly debate made a remarkable jump. Communist Eastern Europe joined in too. Bulgaria, not known for its attachment to political liberty, singled out a report by Amnesty on Chile, and the Soviet Union referred to testimony submitted by Amnesty, the International Commission of Jurists and the Women’s International League for Peace and Freedom. Nigel Rodley,10 Amnesty’s chief legal officer, led the campaign himself. A highlight of his work was the Fifth UN Congress on the Prevention of Crime and the Treatment of Offenders held in 1975. Amnesty spent a year preparing for the Congress – lobbying governments, submitting a 16 page document with a series of recommendations and sponsoring two seminars on torture at the Congress itself. No stone was left unturned. It had its effect. The Congress agreed on a moving Declaration Against Torture. Amnesty followed it up with a massive world-wide lobbying attempt to persuade the General Assembly to adopt the Declaration. On 9 December of that year, they succeeded – extravagantly so. It was adopted unanimously. It took another nine years of hard, grinding work before the UN finally approved a legally binding treaty against torture, in 1984. It came into force three years later. The list of those who fought for it in these years includes the expected – Scandinavian governments and Holland – and the quite unexpected – the US administration of Ronald Reagan.11 But it was Amnesty International, with its combination of attention to detail and zeal of purpose, that carried the day. Without that degree of energy the Convention Against Torture would never have seen the light of day – and Pinochet would never have been arrested.

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Rodley was the first Amnesty staff member to be knighted, on the recommendation of Prime Minister Tony Blair. In 1993 he became the UN’s Special Rapporteur on Torture. In his many years on the staff of Amnesty he drew only the standard Amnesty salary, forsaking the usual rewards of clever lawyers. A more detailed description of the vicissitudes of the campaign and the intricacies of the debate can be found in my columns in the International Herald Tribune of 6 October 1983, 29 March 1984, 1 December 1984 and 20 May 1987.

Ending War Crimes, Chasing the War Criminals

10

The Killing Fields – Cambodia, Pol Pot and the Khmer Rouge

In the 20th century two massacres of hundreds of thousands people compete for second place after Hitler’s extermination of the Jews, Poles, homosexuals and gypsies. One is Cambodia and the other is Rwanda. But Cambodia, where the deaths were between a million and a half and two million and the executions around 500,000, carried out by Pol Pot and his Khmer Rouge, probably wins this ugly contest. “Khmer Rouge” was the name the Cambodian king, Norodom Sihanouk, gave to his communist opponents in the 1960s. Their official name was the Communist Party of Democratic Kampuchea (CPK) which took control of Cambodia in April 1975. They ruled until 1979 when they were overthrown by their neighbour, Vietnam. A week after they took power they forced as many as two million people living in the capital Phnom Penh to leave the city and work in the countryside. Thousands died during the evacuation. It was carried out in a hurried, ruthless and merciless way, forcing the inhabitants to leave behind all their possessions. Even hospital patients were forced to leave their beds and join the exodus. Children got separated from their parents, many old and sick died on the road and pregnant women gave birth with no professional assistance. The vast majority of doctors and teachers were killed. No wonder that this pogrom became known as “The Killing Fields”. (A very good feature film was made of this.) The Khmer Rouge believed this was a levelling process that would turn the country into a rural, classless society. They abolished money, free markets, normal schooling, foreign clothing styles, religious practices and traditional culture. Public schools, Buddhist pagodas, mosques, churches, universities, shops and government buildings were shut or turned into prisons, stables, re-education camps and granaries. There was no public or private transportation, no private property and no non-revolutionary entertainment. People had to wear black costumes, work more than 12 hours a day and be married in mass ceremonies with partners chosen by the party. Showing affection to family members was forbidden. Intellectuals – often singled out because they wore glasses – were executed. If more than three people gathered together to have a conversation they could be accused of being enemies and arrested, even executed.

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The Khmer Rouge leadership kept itself in the shadows and very few knew the names of its leaders. It only came to an end when in 1977 clashes broke out on the border between Cambodia and Vietnam. In December 1978, Vietnamese troops and the forces of the United Front for the National Salvation of Kampuchea fought their way into Phnom Penh, which they captured in early January 1979. The Khmer Rouge then fled westward and re-established their forces in Thai territory, posing as refugees. Relief agencies, including UNICEF, were taken in and fed them, enabling them to fight another day. The US, still reeling from its defeat in the hands of North Vietnam, acted on the old adage “My enemy’s enemy is my friend”. It persuaded the UN to give the Khmer Rouge Cambodia’s seat in the General Assembly. From 1979 to 1990 it recognised it as the only legitimate representative of Cambodia. Every Western European country voted the same way as the US with the exception of Sweden. The Soviet bloc voted against. (There are cases of a country going unrecognised – as with the US refusing to give diplomatic recognition to Angola in the 1980s.) Even after that terrible farce was brought to a close, the Khmer Rouge continued to exist until 1999 by which time its leaders had either died, been arrested by the Vietnamese-backed government or defected to it – like Hun Sen, now the prime minister. At the same time as the US and Europe were supporting the Khmer Rouge regime’s seat in the UN, many left-wing intellectuals and activists in the West were also giving them support. They saw them as a clean communist broom sweeping out the old order. *** The story of Cambodia’s travails did not begin with the Khmer Rouge. It began in 1970 when a pro-American junta headed by General Lon Nol deposed King Sihanouk, a neutralist who had succeeded in keeping his country out of the Vietnam War by making concessions to both sides. He allowed the Americans to secretly bomb the North Vietnamese who made use of sanctuaries in Cambodia. Lon Nol himself was later overthrown by the Khmer Rouge. With Sihanouk deposed, Lon Nol threw his weight behind the US. Cambodia became a pawn in the Cold War with the US at first supporting Lon Nol and later, along with China, supporting the Khmer Rouge. The Soviet Union continued to support the North Vietnamese. Without this US support, argues Sydney Schanberg who was the New York Times’ correspondent in Cambodia, the Khmer Rouge which was no serious threat in 1970, “being a motley collection of ineffectual guerrilla bands, totalling at the most 3,000, could never have grown into a murderous force of 70,000”. The US bombed Khmer Rouge and Viet Cong targets in the countryside on a daily basis. Since most of the raids were by giant, eight engined B-52s, each carrying about 25 tons of bombs and thus laying down huge carpets of destruc-

Ending War Crimes, Chasing the War Criminals

tion, the bombing was anything but surgical and frequently hit civilians. The US also dropped napalm which sets people afire and cluster bombs whose bomblets can destroy the inhabitants of a whole village in one blow. It was Secretary of State Henry Kissinger who fashioned the war in Cambodia. Two of his most senior staff resigned because they opposed his policy – Roger Morris and Tony Lake, who was later to become President Bill Clinton’s national security advisor. More than 200 State Department employees signed a statement of protest. More surprising was the position taken by Secretary of State William Rogers and Secretary of Defence Melvin Laird who were opposed to the B-52 bombings, as Kissinger records with disgust in his memoirs. Even after the Nixon administration had undertaken before Congress not to intensify the raids, there was a 20 per cent increase in the bombings in the months of July to August 1973. The air force maps of the targeted areas show them to have been densely populated. The speed and height of the planes meant that targets were virtually indistinguishable from the air. Kissinger neither enforced any precautions about killing civilians nor reprimanded any violators. (According to Pentagon estimates the number of tons of high explosive dropped on Vietnam and Cambodia was double that dropped in entire course of World War 2.) *** The first voice of dissent about who and what the Khmer Rouge was came from a young State Department officer serving in South Vietnam, Kenneth Quinn. In 1973 he observed that Cambodians were fleeing their country into Vietnam, despite the mutual hatred of the two peoples. He went to interview the refugees, and they told him of the Khmer Rouge and how it was forcing villagers out of their homes and burning their houses. At the same time they were attacking any Vietnamese troops they encountered, trying to push them out of Cambodia. The State Department’s line then was that the Khmer Rouge was a weak appendage of Vietnam. Quinn was convinced this was wrong and wrote a 50 page airgram to Washington. This was the first warning by any outside diplomat – or journalist come to that – that the Khmer Rouge were extremely determined, brutal revolutionaries who were trying to remake Cambodian society. He also wrote that these Cambodian communists were not allied with North Vietnam. This went right against the policies of President Richard Nixon and Secretary of State Henry Kissinger who said that they were justified in bombing Cambodia because they believed that the Khmer Rouge were allied with Hanoi. The US embassy in Phnom Penh turned up their noses at the airgram. In Washington the State Department put it one side, arguing that refugee statements were unreliable. All attention was on the war in Vietnam, then running into serious trouble. In August 1973, to Nixon’s fury, the US Congress ordered an end to the bombing of Cambodia. Since the US had pulled out of Vietnam the bombings had become harder to justify. This came after American aircraft had dropped on Cambo-

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dia about 2.75 million tons of ordinance, causing a massive carnage. Peasants had had to experience both the wrath of the American bombs and the Khmer Rouge. A year later another young State Department political officer, Charles Twining, posted to Cambodia, followed up Quinn’s observations. However, the embassy in Phnom Penn had been overrun so he operated out of the embassy in neighbouring Thailand. He came to rely on journalists who gave him conflicting reports, although a number wrote what turned out to be the awful truth. Confused by contradictory reporting, Twining took himself off to the ThaiCambodian border. This was around nine months after the fall of Phnom Penh. He heard terrible stories from the refugees about what the Khmer Rouge were doing. He reported back to Washington about what he had heard. As the months went by his reports became darker and darker and, as we now know, they were accurate. In May 1975, President Gerald Ford, who had succeeded Nixon, spoke of “very factual evidence of the bloodbath that is in the process of taking place”. Unfortunately, the administration, with Kissinger, the architect of the war and the man who had bloodied Cambodia, still in office, had little credibility. The US press became quiet on the subject of Cambodia with the notable exceptions of Henry Kamn of the New York Times and David Greenway of the Washington Post, both of whom wrote in July 1975 of Khmer Rouge practices. In February 1976, Le Monde prominently published the findings of a Catholic priest, Francois Ponchaud, who had lived in Cambodia for ten years. He wrote that 800,000 had been killed since April 1975. Surprisingly, in September 1975, in its annual report Amnesty International, despite the evidence prominently published in America’s most reliable newspapers, said that the “allegations of mass executions were impossible to substantiate”. It also said that a number of allegations were based “on flimsy evidence and second-hand accounts”. Only three years later did Amnesty start telling the real story. Not until July 1977 was there a congressional hearing on Cambodia. Twining was invited to testify in public. Richard Holbrooke, one of the State Department’s ace diplomats and then an assistant secretary of state, decided to speak out, saying: Some journalists and scholars guess that between half a million and 1.2 million have died since 1972 … We have concluded that the Cambodian authorities have fragrantly and systematically violated the most basic human rights. They have ordered or permitted extensive killings, forcibly relocated the urban population, brutally treated supporters of the previous government and suppressed political and personal opinion.

It had taken two years since the Khmer Rouge had come to power before any senior diplomat decided to say that and have the credibility to be believed. (Kissinger had departed.) Jimmy Carter was now president with a declared position on making human rights central to his foreign policy. Even so the administration was still un-

Ending War Crimes, Chasing the War Criminals

willing to accept formally that the Khmer Rouge were guilty of crimes against humanity. When, a year later, the Vietnamese invaded and overthrew the regime, the Carter government “demonstrated indifference in spades”, according to the New York Times journalist Joel Brinkley, who later wrote a seminal book, Cambodia’s Curse. Samantha Power, now the US ambassador to the UN, in her award winning book, A Problem From Hell – America and the Age of Genocide, wrote that she did not find one US official who remembers reading the UN Genocide Convention to see if events in Cambodia matched its requirements. No faction in the Carter administration argued for any change in US policy. The US had not signed the Convention but could have asked its allies to act – to file genocide charges at the International Court of Justice. None of the Europeans were motivated to do so on their own. Israel became the first country to raise the issue of Cambodia at the UN. Carter did not speak on the subject until April 1978. But when, soon after, it came to the decision as to who should occupy Cambodia’s seat at the UN Washington woke up – but on the wrong side of the bed. In September 1979 it successfully pushed for the Khmer Rouge. Zbigniew Brzezinski, Carter’s national security advisor, told the journalist Elizabeth Becker, an expert of Cambodia, that “I encouraged the Thais to help [the Khmer Rouge] … I encouraged the Chinese to support Pol Pot … He was an abomination. We could never support him, but China could.” And they did for the next 13 years. At the UN the Soviet Union accused the Khmer Rouge of genocide. When Ronald Reagan came to power in 1981 he continued the same policy and UN aid agencies were forbidden to set foot in Cambodia. However, it was Reagan who ratified the UN Genocide Convention in November 1988. He also signed the UN Convention Against Torture in the same month. (It was not ratified until 1994 when Bill Clinton was president.) Finally, in June 1990, President George Bush’s secretary of state, James Baker, announced a change in US policy. The Khmer Rouge would no longer hold the UN seat. A few weeks later the Big Five surprised the world by announcing that Cambodia would become a UN protectorate. The four competing armies would be disarmed and a new democratic government chosen by a fair ballot. The UN had never done anything quite like this. Out of the question for the US and its allies, despite the U-turn, was an apology to the Cambodians for backing for so long in the UN a movement of murderous savages. President Clinton made an apology during a visit to Guatemala for the wrong done in supporting military death squads. But in Phnom Penh the US embassy, I was told by one senior diplomat in January 2013, was not even allowed to discuss the issue. (Another senior British diplomat told me she believed that when the UK voted with the Americans to give Khmer Rouge the Cambodian seat at the UN, the Foreign Office was unaware of the movement’s atrocities!) In October 1991 the four factions and representatives of 19 nations met in Paris to sign the Paris Peace Accords. They agreed to an immediate cease-fire, followed by the demobilisation of the armies and the repatriation of 370,000 refugees in camps on the Thai border. Also they agreed to elections to be held by

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mid-1993. It was an amazing decision. Baker told the conference: “What makes the case so extraordinary and its claim for international support so compelling is the magnitude of the suffering its people have endured.” The first UN peacekeeping forces and administrators started to arrive a few months later, although the Big Five were squabbling about the cost. They faced formidable challenges, not least that Hun Sen refused to give up control of the government and the army. He had ruled the country for seven years and he was not going to step down now. At least the UN was able to set up a radio station which became quite popular. Meanwhile, absorbed by Iraq which they invaded, the Americans and the Europeans turned their attention and energy away from Cambodia. Later when Bill Clinton became president indifference was the rule in Washington. But the election went ahead. Despite vicious Khmer Rouge attacks four million voted. Hun Sen lost. The UN had won. Nearly everyone agreed it had done a good job. But Hun Sen refused to concede and clung to office. The dispute was only solved when King Sihanouk, who had lived in exile in China, took back the throne. Hun Sen would be only the second prime minister and the king’s son, Norodom Ranariddh, became first prime minister. The UN started to leave. The two men after cooperating at the beginning were soon feuding and each building his own personal army. According to Brinkley “society drifted towards anarchy”. Both men were up to their eyes in the lucrative drug trade. The economy was stagnant. Yet the Americans and Europeans continued to give diplomatic support to the government. Hun Sen increased his grip on power, marginalising Ranariddh. Ranariddh stood his ground and civil war broke out. Within two days Hun Sen had prevailed. The US condemned Hun Sen and suspended its foreign aid. The Khmer Rouge continued with their attacks. At the next election in 1988 Hun Sen won handsomely and has continued to win every subsequent election, each one by a greater margin than the preceding one. The most recent in 2013 was regarded as reasonably fair and free. He became popular, not least because he has put Cambodia on the road to an annual growth rate of nearly 7 per cent and lowered poverty dramatically, including infant and maternal mortality. The World Bank representative in Phnom Penh told me that Cambodia had one of the “biggest poverty reductions in the world the last few years”. He also said that “it was a star performer in raising the living the standards of the garment industry employees”. Out of 69 poor countries measured, Cambodia was in fourth place in poverty reduction. Foreign investment is arriving in substantial amounts. Crime is sharply down. Agricultural production is growing at 7 per cent a year, which helps the poorest most since they still live mainly in the countryside. Western nations appear to support him. Certainly they no longer bad-mouth him. Meanwhile the UN, prodded by its human rights officer Thomas Hammarberg, the former secretary-general of Amnesty International, decided to put the Khmer Rouge leaders on trial. President Clinton issued a written order to

Ending War Crimes, Chasing the War Criminals

organise the logistics for capturing and holding Pol Pot, the leader of the Khmer Rouge, until he could stand trial. Pol Pot evaded justice by dying in April 1998, still a free man. For his part Hun Sen thwarted both the UN and the US, throwing up one objection after another with the prime minister saying any trials should be held in (the corrupt) Cambodian courts. This went on for years. The US under George W. Bush again lost interest. But many months later the UN General Assembly, supported by the US, threw down the gauntlet and passed a resolution directing the “Secretary-General to resume negotiations, without delay to conclude an agreement with the Government of Cambodia, based on previous negotiations, on the establishment of the Extraordinary Chambers to try those suspected of being responsible for the atrocities committed by the Khmer Rouge”. After laborious negotiations Cambodia and the UN agreed to set up a hybrid court with both Cambodian and international judges. A majority of the judges hearing a case would be Cambodian, but without the vote of at least one international judge no decision could be made. The Americans insisted that the tribunal must restrict its remit to crimes committed within Cambodia’s borders and only whilst the Khmer Rouge was in power. This had the effect of shielding Henry Kissinger from having to explain his and America’s role in Cambodia’s descent into madness. Finally, in November 2007, the Cambodian authorities arrested Ieng Sary (the Khmer Rouge’s foreign minister), his wife Ieng Thirith (who had been the minister of social affairs), Kaing Guek Eav (who had been commander of the Tuol Sleng jail where 15,000 Cambodians died), and two other senior leaders, Nuon Chea and Khieu Samphan. The court got off to a rickety start with no administrative leadership, no organised translation and no witness protection programme. It was not easy to impose international standards of justice. There was a kickback scandal involving the Cambodian staff director. Human Rights Watch accused the chief judge, Kong Srim, of “handling cases in a political manner rather than according to the law and the facts”. Interviewing witnesses was done in an authoritarian, sometimes intimidating, manner – quite the wrong way for getting at the truth. The interviewing carried on for far too long, delaying the trial, since over the years hard evidence had piled up in newspapers, TV reporting and embassy and UN files. Eventually the first defendant was brought to trial – Kaing Guek Eav, popularly known as “Duch”. Duch testified in court in the spring and summer of 2009. His surviving victims gave terrible testimony describing the torture methods used. The trial was broadcast on television to an audience that was unnaturally young – a majority of the older generation had been killed. The court itself made a tremendous effort to reach out to the populace. Tens of thousands of school children have been invited to watch the proceedings at first hand. Villagers were bussed in. The NGO, the Documentation Centre of Cambodia, launched a highly successful educational programme, bringing

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people into the court room but also showing DVDs of the trial in thousands of villages. In July 2010, Duch, who is the only defendant to have pleaded guilty, was sentenced to 35 years in prison. The trial had taken three years. The trials of those who pleaded not-guilty went on and on and were not finished until mid-2014 – seven years after they commenced. Compare this with the Nuremberg Court which tried the senior members of the Nazi leadership. It lasted only a year. According to Seth Mydans, a correspondent for the New York Times, “Cambodians know him as the cruellest of the Khmer Rouge torturers, the author of such directives as ‘Use the hot method, even if it kills him’ and, in the margin of a list of 17 children, wrote: ‘Kill them all’.” Today, to journalists, he has tried to present himself as a different human being. “I think my biography is something like St Paul’s”, Duch told Nate Thayer, an American reporter who recounted his strange story in an article in the Far Eastern Economic Review. “I feel very sorry about the killings and the past. I wanted to be a good communist. Now in the second half of my life I want to serve God by doing God’s work to help people.” After the defeat of the Khmer Rouge, Duch fled with other Khmer Rouge leaders into the jungles. According to his own account, Duch left the movement in 1992 and became a teacher. Then, under assumed names, he worked with the UN and private relief agencies. It was at this time he converted to Christianity. “After my experience in life I decided I must give myself to God.” He appears to accept his fate: “I have done very many bad things in my life. Now it is the time to bear the consequences of my actions.” With Duch behind bars that left four defendants. Then Mrs. Ieng Thirith was excused the trial and confined to house arrest on account of her affliction with Alzheimer’s. Following that in April 2013 Ieng Sary died. According to an obituary in the Economist he had said that “[i]t was the greatest revolution the world had ever seen. It would be written in golden letters on the pages of history.” Whilst deputy prime minister and foreign minister he sent out messages in 1975 to thousands of Cambodian students and intellectuals living abroad to return home. Many came and found themselves being condemned as spies, thrown in jail, tortured and killed. If ever pressed about his role in the Khmer Rouge, he would answer that he had been just a secondary figure. As the foreign minister he had to travel all the time. He was not privy to the policies and tactics of Pol Pot. For himself he had killed just one man and done nothing wrong. He was a gentle person, he insisted. When the Khmer Rouge was toppled by the Vietnamese, he fled to Thailand. There he found fresh clothes, new sandals and a VIP air ticket to Beijing, all supplied by the Chinese embassy in Bangkok. Later when Prime Minister Hun Sen declared an Amnesty he returned to Phnom Penh. His Toyota Land Cruiser with its darkened windows was a common sight outside the capital’s best restaurants. Security guards protected his large villa in an elegant part of town.

Ending War Crimes, Chasing the War Criminals

The remaining accused from the regime’s leadership, Nuon Chea who is 87 and Khieu Samphan who is 82, in October and November 2013, made their closing statements before the Extraordinary Chambers of the Courts of Cambodia. A public gallery of Buddhist monks, local schoolchildren and foreign journalist looked on. Nuon Chea was the regime’s chief ideologist and “Brother Number Two”. He was a pitiless dogmatists who once declined to save two nieces from his own regime. Khieu Samphan was head of state. Both were doctors. In October Co-Prosecutor William Smith, an Australian, methodically summed up 212 days of hearings, testimony from 92 people and documentary evidence that included telegrams sent to Pol Pot’s headquarters with daily accounts of the atrocities being committed. Finally, the seven year trial of the leaders of the murderous Khmer Rouge leadership of Cambodia ended in August 2014. The two defendants Nuon Chea and Khieu Samphan were each given a life sentence. In September 2014 the court announced that it would begin a second trial against the two men on a new set of charges including genocide. The court has been expensive and has cost over USD 200 million, but it has helped the Cambodians come to terms with what happened. Over 100,000 Cambodians have attended court hearings. Television channels wrapped up each week at the Tribunal and programmes re-uniting families separated by decades of war are popular. School curriculae now teach Khmer Rouge history, and parents are no longer afraid to talk to their children about the horrors they lived through. The court has spent seven years doing its job whereas the Nuremberg court that tried the Nazi leaders at the end of World War 2 took only a year – and there were many more defendants. When I attended the court I watched, appalled, the French defence lawyer spinning out the proceedings beyond all reasonableness. Of course defence lawyers have to do their job, but they also have to have a conscience and a sense of proportion – especially when they know the defendant is guilty of the most heinous crimes imaginable. Still, one can ask the question: How much does the outside world care or even know? Very little. The Khmer Rouge has faded into history. When Rwanda exploded the world at first turned its head. Our politicians and diplomats apparently had learnt nothing and the media was slow on the uptake. Will there be more genocides that the world will ignore until it is too late? As Martin Luther King once said: “We must break the silence of the night … No lie can live for ever … Truth pressed to earth must rise again.”

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11

The War in Ex-Yugoslavia – The Hunting Down and Trials of Its Leaders

African leaders have been angry that the International Criminal Court, the Rwanda and Sierra Leone courts appear to have focussed exclusively on African war criminals – in Rwanda, Liberia, Sierra Leone, Congo, Ivory Coast, Uganda, Kenya and Somalia. In reality the picture is more complicated. If one looks at all the courts there have been a good number of ex-Yugoslavs, Cambodians, Indonesians, East Timorese and Libyans tried or being tried. Many have been convicted and sentenced to long terms of imprisonment. Moreover, the ICC prosecutor is currently investigating war crimes in a number of other countries – Colombia, Syria, Libya, Afghanistan and Israel. Indeed, it is the African states themselves that have made most of the referrals to the courts. In this chapter I want to look at the trials dealing with war crimes, including genocide that occurred during the wars of succession that followed the dissolution of Yugoslavia in 1991. As I write in 2016, the International Criminal Tribunal for the former Yugoslavia is trying General Ratko Mladic, whose bloodthirsty military campaigns were carried out on the authority of the president of the Serb entity in Bosnia, Radovan Karadzic, and according to the wishes of Slobodan Milosevic, the president of Yugoslavia and then Serbia. Although this chapter will focus on Serbian atrocities, not to be forgotten are the war crimes carried out by both Croatia and Bosnia. The civilian Serb population in Croatia was subject to horrendous violence and 200,000 Serbs forced to leave their land and country. The Bosnian Muslim authorities committed severe abuses and killings of the Serb population in Sarajevo. The ex-Yugoslavia court appears to have dealt lightly with war criminals from Croatia and Bosnia. Naser Oric, the Bosnian military commander, was convicted of minor charges and then acquitted on appeal. The West has also ignored the evidence that rank and file members of Al Qaeda were recruited by the Bosnians to fight on their side. Some of them are still there having married Bosnian women. But first some history: During World War 2 partisans fought a guerrilla war against the German occupiers. There was also at the same time wars between communist partisans

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and Croat and Serbian forces. The Croat regime that spawned Utasa, ultra nationalist killing squads, committed savage atrocities. It believed in a Greater Croatia that would expand almost to Belgrade. The Catholic archbishop of Zagreb (later beatified by Pope John Paul whose relatives had died in Auschwitz) was accused of befriending them. In turn the partisans massacred Croatian prisoners. Both sides committed horrendous crimes against civilians. Ancient feuds between Serbs and Croats, Muslims and Christian Orthodox were not healed in any common resistance to the invaders but were reactivated and exacerbated. Casualties were around 1,300,000. The author and intellectual Milovan Djilas, who was Tito’s vice-president and later his sharpest opponent, said in a long interview with George Urban in Encounter magazine in 1979: We have to look upon the civil war, not with the wisdom of hindsight, but in the historical context in which it occurred; and that context was the oppressive hegemony of the Serbs over virtually everyone else – Croats, Macedonians, Albanians and the rest. People, such as the Albanians (Moslem Bosnians), with a population of several hundred thousands, had no schools in their national language and no hope of national emancipation. Our peasants were extremely poor and backward; our ruling groups were corrupt; and the Royal Court was riddled with intrigue and favouritism. Such a system couldn’t survive and didn’t deserve to. The people who were ultimately responsible for the civil war were therefore not those who driven to revolution, but those men and women who had, decade after decade, done nothing to lessen injustices and improve the lot of the ordinary citizen.

After the war the Yugoslav regime of Tito treated as taboo any discussion of these wartime atrocities. But the memories were not buried. Blood coursed through the body politic of ex-Yugoslavia not that long ago. It was the only country in Europe to have civil war at the same time as the World War and the memory was still relatively fresh in 1991. 1991 was the year that the simultaneous wars in Yugoslavia began. Before the wars began Yugoslavia was composed of six republics. Tito, the ex-partisan and first president – and communist strongman – of post-World War 2, was dead and eventually succeeded by Milosevic. Milosevic was a nationalist – who increasingly as time passed became an extreme one, demanding that the province of Kosovo which was peopled with Albanians should be always part of Yugoslavia because 500 years before in a sharp war the Orthodox northerners had defeated the Muslim Albanians. He was also a wily charismatic leader who had not only his people eating out of his hand but many Western politicians and diplomats too. It was Milosevic who stoked the first flames. Slovenia quietly withdrew from Yugoslavia after a short war of two weeks. But Milosevic ordered the army into Croatia which had declared, more vociferously, independence at the same time. Croatia was home to 100,000 Serbs and Milosevic said his troops were there

Ending War Crimes, Chasing the War Criminals

to protect them. A seven month war left 10,000 dead and 700,000 displaced. Serb artillery pounded Dubrovnik, one of the most beautiful of old cities in Europe. Muslim and Christian Bosnians thought they would be next. After all 35 per cent of their population was Serb. Backed by Milosevic Serb nationalists declared their own separate Bosnian state within the borders of the old Bosnia. The main Serb army teamed up with the local one. The UN imposed an arms embargo which hindered the Muslims and Christians more than the Serbs. The Serbs began a vicious offensive to secure the existence of their ethnically homogeneous state. According to Samantha Power, then a journalist, today the US ambassador to the UN: For the next three and a half years the US, Europe and the UN stood by while some 200,000 Bosnians were killed, more than 2 million were displaced, and the territory of a multi-ethnic European republic was sliced into three ethnically pure statelets … What the US and its allies did not do until it was too late, however, was to intervene with armed force to stop genocide … neither President Bush nor President Clinton intervened in time to save the country of Bosnia or its citizens from destruction.

Bush was opposed to lifting the UN embargo on arms supplies. “There are enough arms there already”, he said. “We’ve got to stop the killing some way, and I don’t think it’s enhanced by more and more weapons.” British Conservative Foreign Secretary Douglas Hurd argued that he did not want to see a level arms field: “It would be a level killing field.” US Secretary of State James Baker said that the US did not “have a dog in that fight”. Meanwhile the Western press set about reporting horror after horror. The first high profile reports of Serb detention camps that were later re-named concentration camps appeared in Newsday and the Guardian under the respective by-lines of Roy Gutman and Ed Vulliamy, and on the British ITN station. They reported beatings, torture and mass executions. In Omarska, the worst of the Serb camps, several thousand Croats and Muslims were held in metal cages and killed in groups of ten to 15 every few days. The US State Department spokesman confirmed that the US had evidence confirming the existence of the camps but insisted that that the Serbs were not alone. “We have reports that Bosnians and Croats also maintain detention centres.” The head of the International Red Cross told me in an interview that both sides were as bad as each other. The Bush administration, buffeted before the constant criticism, led the way in August 1992 in securing a Security Council resolution authorising “all necessary measures” to facilitate the delivery of humanitarian aid. A small UN contingent of peacekeepers was reinforced in Bosnia. An additional 6,000 were sent in including 1,800 experienced and well-trained British troops. US generals, ever cautious since the US defeat in Vietnam, put a break on an idea of sending in

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troops even though in one poll 80 per cent of Americas supported the idea. General Colin Powell, the military’s chief, argued in a New York Times op-ed article that if the US deployed its troops it would be for “unclear purposes” in a conflict “with deep ethnic and religious roots that go back a thousand years”. In the State Department this view was subject to divisive discussion. George Kenney, the acting desk officer for Yugoslavia, resigned. In the Washington Post he was quoted as saying: “I can no longer in clear conscience support the Administration’s ineffective, indeed counterproductive, handling of the Yugoslav crisis.” As many did he favoured lifting the arms embargo and bombing Serbia. President Bush himself never paid much attention to Bosnia. Once a week Bush would turn to Brent Scowcroft, the national security advisor, and say: “Now tell me again what this is all about?” This was at a time when 70,000 Bosnians had been killed in seven months. When Bill Clinton succeeded Bush and became president the same policy was continued. In May 1993 Clinton finally agreed to a new policy “lift and strike”. An attempt was made to convince European allies to lift the embargo on Bosnians receiving arms and Serbia would be bombed. When the Europeans resisted the idea many senior people in the administration breathed a sigh of relief. In the Security Council the US argued for the creation of “safe areas” for the Bosnians in the Muslim-held enclave of Srebrenica and in the capital city of Sarajevo and four other heavily populated areas that were under siege. The UN Secretary-General Boutros Boutros-Ghali told the Security Council that 30,000 troops would be needed for this. But only a fraction of this number arrived. The Americans did not send one soldier. Clinton himself called the “safe areas” “shooting galleries”. The administration underlined that the Bosnian army was also carrying out abuses. Clinton said: “Until these folks get tired of killing each other bad things will happen.” In May 1993 his secretary of state told the House Foreign Affairs Committee: “You will find indication of atrocities by all three of the major parties against each other. The level of hatred is just incredible. So, you know, it’s somewhat different from the Holocaust. It’s been easy to analogise this to the Holocaust, but I never heard of any genocide by the Jews against the German people.” Indeed many observers had concluded that none of the leaders were particularly concerned about the fate of their own people. The Western press continued its barrage of criticism rousing to a peak when Sarajevo came under fire by Mladic’s troops acting on Karadzic’s orders, perched on the hills that ringed the city. Warren Christopher, the US secretary of state, changing tack, called Serb behaviour “genocide”. But still little was done on the ground. 200,000 Bosnians were killed. Back in the Security Council a resolution was passed invoking the Genocide Convention and the setting up of the first international war crimes tribunal since Nuremberg. Meanwhile a modest contingent of UN troops was deployed. Almost immediately the Serbs used their snipers to take them out, one at a time. They also

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choked off its supplies of food and fuel. 600 Dutch peacekeepers were performing their tasks on mules. The Western powers, however, had organised a supposed back up of fighters that the UN could request if the UN troops were in serious difficulties. It was a “dual key” arrangement. The UN’s head of its civilian mission had to turn the key first. Only then could NATO turn its key and the planes could be launched into action. However many UN people were against the whole idea of using air power, believing it would destabilise the peace process and provoke the Serbs to round up UN soldiers. In July 1995 the Serbs decided to call the UN’s bluff and take Srebrenica. Neither the UN nor NATO responded. On Bosnian television General Mladic announced: “Finally, after the rebellion of the Dahijas, the time has come to take revenge on the [Muslims] in this region.” The following week on 6 July Mladic ordered the Muslim men in Srebrenica to be separated from the women and children. His troops then set about the slaughter of 7,000 men. This event which had left the lightly armed Dutch peacekeepers looking on helplessly, out-gunned by the Serb army, did trigger a NATO response. Its planes engaged in a three-week bombing campaign against the Bosnian Serbs. UN officials resisted publicising atrocity reports. The day after the Serb attack on Srebrenica Boutros Boutros-Ghali, the UN’s secretary-general, told the press: “I don’t believe this represents failure. You have to see if the glass is half full or half empty. We are still offering assistance to the refugees … and we have been able to maintain the dispute within the borders of the former Yugoslavia.” In the US pressure mounted to persuade Clinton to intervene. The press, Congress and vice-president Al Gore lobbied Clinton to take action. A number of NGOs which had always eschewed the use of force called for military intervention. (Amnesty International did not - its constitution would not allow it.) The role of the Western media was controversial, to say the least. It gave a very one-sided view. Its anti-Serb bias was sometimes extreme. Journalists had great difficulty in getting into Serbia – which did not help objectivity. All they saw were events in Bosnia and even here the reporting of the press was severely tarnished at important times and with crucial events. In his well-researched book Media Cleansing, Dirty Reporting – Journalism and Tragedy in Yugoslavia, Peter Brock has shown the underside of press reporting. Perhaps his most startling piece of analysis is of the sensational images broadcast by a British television station, ITN, and then sold to TV stations all over the world showing extremely brutalised and malnourished men with their rib cages revealed, reaching through barbed wire at Trnopolje, shaking hands with three reporters. (This was on 5 August 1992.) All too graphic, close-up and wide-angle camera shots could not lie. The Western press went to town. The images were replayed for days after. Time put them on its cover. Newsweek printed 15 large photos. A German journalist punctured the balloon. Thomas Deichmann was asked to testify at the UN court in The Hague. He wrote at the time of how:

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One night, when I was going through the pictures again my wife pointed out a little detail. If Bosnian Muslims were imprisoned inside a barbed-wire fence why was the wire fixed to the poles on the side of the fence where they were standing. As any gardener knows fences are, as a rule, fixed to the poles from the outside, so that the area to be enclosed can be fenced-in. It occurred to me then that perhaps it was not the people in the camp who were fenced-in behind the barbed wire, but the team of British journalists.

Deichmann returned to Trnopolje and interviewed locals who were familiar with the details of what he concluded was no internment camp; it was a collecting camp for exiled Muslims. “Everybody I spoke to confirmed that the refugees could leave the camp area at almost any time.” Brock comments: “Although Deichmann reported that ITN’s Penny Marshall, the Guardian’s Ed Vulliamy, and British Channel 4 reporter, Ian Williams, never intended the footage to be construed as a concentration camp the way it was edited and presented back home shrieked otherwise.” To their credit the three influential journalists have criticised the way that others tried to use their reports and pictures as “proof” of a Nazi-style holocaust in Bosnia. There was too much shallow reporting and too much near hysterical editing and presentation. The much respected BBC journalist Martin Bell has written: “I’ve one criticism of the press. I don’t think we have paid sufficient attention to the Serbs. I think there has been a tendency to be holed up in the Holiday Inn in Sarajevo as the Serbs bombed the city and say ‘Oh, those terrible Serbs, why are they doing it?’” Misha Glenny, also of the BBC, wrote: Regarding the matter of what happened in Srebrenica earlier this year [1993], the media ignored entirely that in a large degree this was due to a response from a very big Muslim offensive in December when Muslims pushed the Serbs back and destroyed quite a few Serbian civilians on the way to one or two very nasty massacres. And so the attack on Srebrenica was essentially a response to the Muslim offensive. But, of course, we didn’t hear anything about that offensive when it was happening. The essential thing missing out of the coverage was: Why did the Serbs behave like this?

John Burns of the New York Times and Blaine Harden were accused by Brock of forsaking “intellectual honesty”. Simon Jenkins, editor of the London “Times”, wrote: “You furnish the pictures and I’ll furnish the war” – the press baron, William Randolph Hurst, cabled his staff in Havana in 1898. The techniques used by the modern press to drive politicians to war are, I believe, hardly less insidious … Press analysts have mocked the UN’s humanitarian mandate, ignored the fate of the relief convoys and pressed, overtly or covertly, for military aid to the

Ending War Crimes, Chasing the War Criminals

Bosnian side. The Bosnian Serb case, such as it is, has gone by the board, as has Croatia’s since the Croats were shown to be less than angels. Equally neglected is the argument for no intervention … The non-intervener is not just a spoilsport, he is immoral, blind, an accomplice to unilateral evil.

*** On 17 July 1995 Clinton, battered by criticism, took the decision to intervene. Starting on 30 August and continuing for the next three weeks, NATO planes flew 3,400 sorties and 750 attack missions against 56 targets, concentrating on ammunition stockpiles, surface-to-air missile sites and communication centres. The Bosnian Serb army was sent into a tailspin. Muslim and Croat soldiers succeeded in reclaiming some 20 per cent of the country that had been seized and cleansed in 1992. The Serbs were ready for the conference table. In an airbase in Ohio in August the US assistant secretary of state for European affairs, David Holbrook, engineered a peace agreement. The accord left Serbs in Bosnia who had 31 per cent of the population 49 per cent of the land, Croats with 17 per cent of the population got 25 per cent and the Muslims who constituted 44 per cent of the population received a mere 25 per cent. Three ethnically “pure” slivers of territory were almost all that was left of Bosnia. The three groups were to share the same country but under a divided and weak single government that over the years fought itself – by argument and non-cooperation – almost to a standstill. In total the war had claimed over 200,000 lives, mostly Muslim, and two out of three people had lost their homes. But this was not the end of war in ex-Yugoslavia. There was Kosovo, an Albanian province of Serbia, that had long sought independence. Despite conceding much at Dayton, Milosevic at home continued his repression. Dissent was effectively outlawed and he ordered political assassinations. After Dayton Albanian hopes had been raised only to be punctured by the fact that they were not even on the agenda. A shadowy terrorist force, the Kosovo Liberation Army (KLA), stepped into the void. It set about aiming at Serbian targets inside Kosovo, gunning down policemen. Milosevic sent in his troops which murdered 58 relatives including women and children of the KLA strongman Adem Jashari. The people of Kosovo were outraged and support for the KLA mushroomed. Serb gunmen went on with atrocity after atrocity torching whole villages. In October 1998 Holbrooke negotiated with Milosevic once again. In exchange for avoiding NATO air strikes Milosevic agreed to withdraw some of his forces from Kosovo and allow the deployment of 2,000 unarmed international verifiers. The agreement did not hold and the Serbs continued with their atrocities. The US and its allies convened a conference at the French chateau of Rambouillet and attempted to strong-arm Milosevic to agree to remove his troops from Kosovo and grant Kosovo significant autonomy. 25,000 armed Western peacekeepers were to be deployed including 4,000 Americans. Milosevic refused the deal, convinced NATO would not bomb again.

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He was wrong. But so was NATO. Without a mandate from the UN it went to war. It precipitated what it sought to avoid – the killing of the Albanian population. Serb units had gone into action razing villages and murdering their inhabitants. Milosevic’s forces forced 1.3 million Kosovars to abandon their homes. The NATO pilots were no match for the Serbs. Bad weather, the height they chose to fly to avoid their own casualties and the fact that the Serbian troops mingled with the native population stymied their effectiveness. The Pentagon which had told Clinton it expected it all to be over in a week was proved badly wrong. They had not anticipated Milosevic’s ruthlessness. NATO faced a loss of credibility and decided to up the ante. Belgrade was bombed. Deadly Apache helicopters were deployed to Albania, but in the end not used. After two months of bombing the UN war crimes tribunal for the former Yugoslavia got around to indicting Milosevic for war crimes and crimes against humanity. It was the first time a head of state had been charged during an armed conflict with violations of international law. Finally the Russian president, Boris Yeltsin, who had stayed close to Serbia sent his prime minister, Viktor Chernomyrdin, with the instruction: “I don’t care what you have to do, just end it.” Milosevic crumbled under Russian pressure and his fear that NATO would launch a ground invasion. Also the Serb people, tired of continuous war, were deserting him. Albanian extremists then set about expelling more than 100,000 Serbs from their homes and killed some 1,500 even though 50,000 NATO troops were patrolling Kosovo. The Albanian authorities and media encouraged the KLA in their deadly campaign. It was NATO’s first war, but it claimed not a single NATO life. Critics, however, evaluating the way the early phase of the air campaign had precipitated the killings it sought to avoid said that this was not the humanitarian intervention they had, over recent years, lobbied for. Amnesty International issued a statement accusing the NATO nations of war crimes and demanded the UN court investigate them. It did but decided not to make any indictments. *** It is important to remember that the taking of one’s neighbour’s life was in the blood of many Yugoslavs. It was not difficult for many to justify the killing of someone in one’s own village, the street round the corner or even one’s immediate neighbour, however well they seemed to live at peace in day to day existence and however many intermarriages there were. In the Encounter interview Djilas spoke frankly of his own blood lust. During World War 2 his partisans defeated a battalion of Italian troops: “Many corpses were tossed into the Rama river. Some got caught among the logs, and I shared with our officers a malicious joy … I had absolutely no intention of stopping the killing. In the constraining conditions of war and revolution I had to act

Ending War Crimes, Chasing the War Criminals

the way I did. Once you believe you are in possession of some infallible truth, you become a combatant in a religious war.” It seems that Djilas’s attitude is not untypical of the mentality in ex-Yugoslavia in the 1990s. Once the wars ground to a close, the combatants worn out, plus the American diplomatic initiative with its peace-making Dayton Agreement, it was only a matter of time and persistence that the principals would be arraigned before the newly conceived UN-established International Criminal Tribunal for the Former Yugoslavia. (Russia voted for it, despite its long-time political support for Serbia). But nothing could happen in terms of arrests without a push from below from the populations that hosted the indicted leaders and generals. “The discourse of responsibility did not emerge suddenly in Serbia. At least on a small scale public discussions on the question began at the same time as the war began”, writes Eric Gordy in his thorough treatment of “Guilt, Responsibility and Denial” – the title of his book. There was the ongoing “Druga Srbija” campaign of the Belgrade Circle of Independent Intellectuals. There was the work of the Belgrade Centre for Human Rights and the Fund for Humanitarian Law. Publications such as Republika opposed the war. So did the independent radio station B92, which also translated foreign books critical of the war. Nevertheless, the state controlled the main media, and this was the source of information for most of the population. Before the arrest of Milosevic over the weekend of 31 March to 1 April 2001, a series of public opinion polls had been conducted on whether he should be arrested. The results were clear: Milosevic should be and tried, although it was less clear on what he should be charged for. Only over the course of the year did some opinion gradually come round to a trial at the International Criminal Tribunal for former Yugoslavia. But the majority appeared to be anti-ICTY and wanted a trial in a domestic court. The various polls, however, were somewhat contradictory. More people blamed the US than Milosevic for the bombing campaign of 1999. More people blamed the former Croatian president, Franjo Tudjman, than Milosevic for the break up of Yugoslavia. After the war an overwhelming majority – some 80 per cent – blamed the wars on the political and economic interests of the West. Nevertheless, when asked which four events “come to first to mind” with the war in Bosnia, the most frequent responses were: the atrocities committed by Serb forces; the mortar attack on the Markale market in Sarajevo; the siege of Sarajevo; and the massacres in Srebrenica. When the arrest of Milosevic was finally made, after some small clashes between police and Milosevic’s personal bodyguard, the government spoke very little about it. Prime Minister Zoran Djindjic, who authorised the arrest, said he had not been following events on the night of 31 March and had been watching the film “Gladiator” with his son. Most people seemed resigned to accepting it. Later he was murdered for his complicity in Milosevic’s arrest. Djindjic’s funeral attracted hundreds of thousands of mourners yet in elections in 2003 his party

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had been roundly defeated. Djindjic was an ambiguous leader. In 1994 he had visited Pale, the home town of Radovan Karadzic, to show support for him. Two weeks later the ICTY presented the government of neighbour Croatia with indictments against two army generals, Rahim Ademi and Ante Gotovina. After a bitter political debate the government accepted the indictments and agreed that the accused would be delivered for trial. There was a great deal of opposition, although many were attracted to the bait of a relationship with the European Union if the country showed it was law-abiding. Both President Ivo Josipovic and his predecessor Stjepan Mesic were outspoken in advocating the need to acknowledge and try crimes committed by Croatian forces. Set against this feeling a group of prominent athletes led by world tennis champion Goran Ivanisevic, representing a good swathe of public opinion, published an open letter against the indictments, declaring: “This is an effort to alter the fact of who is the victim and who is the aggressor. The only truth is that Croatia was the victim and its generals and soldiers were heroes.” “The arrests made on behalf of the ICTY can be counted as a contribution towards demolishing the doctrine of sovereign immunity whereby high-ranking political and military officials have traditionally enjoyed exemption from prosecution”, writes Eric Gordy. Besides Milosevic the Tribunal has tried Serbian President Milan Milutinovic, who was acquitted on the grounds that he did not exercise command. High-ranking military commanders who were convicted included Rasim Delic, Dragoljub Ojdanic and Nebojsa Pavokovic. Milosevic himself, after being incarcerated for four years while his trial proceeded, died of a heart attack mid-trial. Death also saved from trial Bosnian President Alija Izetbegovic and former Croatian President Franco Tudjman, according to the ICTY prosecutor, Carla Del Ponte. The Tribunal itself had flaws. It proceeded at a snail’s pace, giving defendants, in particular Milosevic, too much leeway in being granting delays so he could research his case in more detail or because of illness (that did not incapacitate him). Richard Goldstone, the South African judge who was the Tribunal’s first prosecutor, described the atmosphere when he arrived in The Hague: It had been established by the UN Security Council 15 months earlier yet investigations into war crimes had not begun. The judges, who had been appointed almost a year before, were frustrated and openly talked of resigning. The UN was facing its worst-ever financial crisis and staffing a new sub-organ of the Security Council was a big problem. The whole idea that Balkan leaders then pursuing genocidal wars would actually end up in the dock was, in many quarters, dismissed as fantasy.

When the Srebrenica massacre happened in 1995 the Court had only one defendant in custody.

Ending War Crimes, Chasing the War Criminals

As for the uncooperative Milosevic, he described the Court as “a concentration camp for Serbs”. He rejected the Court’s legitimacy, arguing that it had “the task of fabricating a false justification for war crimes committed by the Nato pact in Yugoslavia”. Some critics have argued that the Tribunal also has failed by not making charges against NATO countries for attacking civilian targets during the bombing of 1999. *** After the arrest of the Croatian Ante Gotovina in 2005 all the fugitives still sought were Serbs. All had succeeded in hiding themselves for years. The ICYT would claim to have evidence as to their whereabouts and journalists often came across them. But periodic police raids never caught anyone or rather said they did not. NATO troops purposely turned a blind eye. In November 2004, British defence officials conceded that military action was unlikely to be successful in bringing Karadzic, Ratko Mladic and other suspects to trial. One winter’s day British UN troops carrying side arms were confronted by the general skiing down the piste at Sarajevo’s former Olympic skiing resort but made no move to arrest him. Skiing behind Mladic were four bodyguards. Despite the Hague warrant, the soldiers decided to carry on skiing. NATO did later send commandos to arrest various war crimes suspects, but Mladic simply went underground. No amount of NATO action or UN demands, or even a USD 5 million bounty announced by Washington, could bring him in. It came as a total surprise that Karadzic was arrested in Belgrade on 21 July 2008. Police had been tracking him for months, and they arrested him on a Belgrade tram. He was lightly disguised with a beard. He lived on his own and published his occasional writings (he was a poet). He was working as a kind of psychiatrist, proving mystical healing services to clients and offered to heal sexual dysfunction with “human quantum energy”. His evenings were often spent in a local bar, listening to Serbian music. He performed epic poetic narratives about himself while seated under his own portrait. He was dispatched to The Hague without drama. Dispirited Karadzic supporters and some far-right parties staged a protest. It was attended by an estimated 16,000 people; 1,000 who remained after the demonstration rioted and confronted the police. Mladic, the commanding Serb general, presently being tried, was a “casual sadist”. According to Gordy he would order attacks on civilians in Sarajevo by shouting “Raspameti” (Blow their heads off). He was filmed distributing chocolates to children but once the film crew had gone he recalled the chocolates. Then the children’s male relatives were murdered. Until 2001 he lived openly in Belgrade, attending football matches and restaurants. In the end, after an immense amount of pressure had been brought to bear on the government which badly wanted to be considered for EU membership,

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he was arrested in May 2011 at a cousin’s house in a village, living under a pseudonym. His arrest was carried out by two dozen Serbian special police officers wearing black uniforms and masks. The police were accompanied by agents from the War Crimes Prosecutor’s Office. The officers entered the village in four SUVs in the early morning hours while most residents were still asleep. They pulled up at four houses simultaneously, each owned by Mladic’s relatives. Mladic was about to venture into the yard for a walk after being awakened by pain when four officers jumped over the fence and broke into the house grabbing Mladic, forcing him to the floor, and demanding he identify himself. Mladic identified himself correctly and surrendered two pistols he had been carrying. He was then taken to Belgrade. Serbian President Boris Tadic confirmed that it was Mladic and announced that the process of extraditing him to the ICTY was underway. Mladic was not wearing a beard or any disguise. His appearance reportedly showed he had “aged considerably”, and one of his arms was paralysed due to a series of strokes. Karadzic and Mladic were charged with genocide, along with spearheading the ethnic cleansing campaign that included the continuous shelling of Sarajevo and the 1995 Srebrenica massacre. Prosecutors argued in their final statements that Karadzic was “the driving force” in the persecution of the non-Serbs. He was convicted in March 2016, guilty of genocide, with a sentence of 40 years. Mladic’s verdict is not expected until 2017. At one point Mladic told the court: “Your subpoenas, your platitudes, your false indictments, I do not care one bit about any of it. I do not recognise this hate court. It is a satanic court.” The Tribunal is now winding down. It has concluded the proceedings for 141 of the 161 leaders it charged. Some lower-level cases were sent to national courts in Bosnia, albeit with some international judges on the bench.

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War Crimes Can Be Committed When Human Rights Are Pursued by Making War

No event illustrates more sharply the gap in thinking between those who try to integrate human rights into everyday geopolitical thinking – and usually failing to – and those such as Amnesty International who stand apart from day-to-day political compromise and insist on an untarnished standard than the debate over the bombing of Yugoslavia in 1999. NATO claimed it was a crusade to forestall the ethnic cleansing of the Albanian people of the province of Kosovo. But in fact the bombing turned out to be nothing less than the precipitating event in the ethnic cleansing, which, contrary to NATO propaganda, did not occur on a massive scale until after the bombs began to drop. Amnesty, although critical of the bombing at the time, did not issue its blockbusting press release until 13 months after the event. It had taken that long for its thorough checking processes to be completed. But once its then secretarygeneral, Pierre Sane, had taken the final decision to go public in May 2000, it became quickly apparent this was the essence of Amnesty’s long tradition: to stand apart from governments, even democratic ones, and to question means as well as ends. On 7 June the Amnesty press release went out, with a copy sent simultaneously to the US State Department, the foreign ministries of Britain, Germany and France and NATO headquarters in Brussels. The New York Times’ Steven Erlanger began his dispatch: “In an extensive report that has infuriated NATO leaders Amnesty International said that NATO violated international law in its bombing over Yugoslavia by hitting targets where civilians were sure to be killed. Amnesty accused NATO of war crimes, of ‘breaking the rules of war’, said that those responsible ‘must be brought to justice’ and asked the UN criminal tribunal on the former Yugoslavia to investigate these allegations.” Ironically, this perhaps showed that the Pentagon generals who had waged a bureaucratic war against President Clinton to water down and, in the end, oppose the creation (which initially he had strongly favoured) of a permanent International Criminal Court for trying war crimes had focused their attention in the right direction. Their intuitive alarmism, which many at the time thought was overdone, turned out to be essentially correct. The human rights lobby has

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the wind in its sails and is going about its business in a way that is pushing its ship forward at a fast rate of knots. Over the last decade, it has won worldwide ratification of the Genocide and Torture Conventions, the creation of a UN High Commissioner for Human Rights, the establishment of ad hoc war crimes tribunals for ex-Yugoslavia, Rwanda and Sierra Leone, the arrest and detention in Britain of General Pinochet of Chile and, most important, a permanent International Criminal Court for the prosecution of crimes against humanity. The reasons the Pentagon gave to President Clinton for opposing an International Criminal Court – that other nations would not allow the US to write into the treaty that US troops could never be arraigned before it – now can be seen as prescient. Guantanamo and Abu Ghraib prisons and the use of rendition and torture suggest that a case could be made for a prosecution of the US by the Court. It will be deeply ironic if the human rights cause to which an American president in the 1970s gave so much of a fillip should progress to the point where it is hoisting the US with its own petard.1 But that, indeed, is what Amnesty and Human Rights Watch is up to. Case by case, the logic of their own mandates is leading it more and more into a head-on clash with the liberal democracies. Contrary to the current widespread opinion, given voice to by such diverse personalities as Samantha Power, the US ambassador to the UN, the late David Holbrooke, the “father” of the Dayton Agreement, the Canadian writer Michael Ignatieff and the Oxford don Timothy Garton Ash, the pursuit of human rights is not particularly well served by military action. To quote Michael Ignatieff: “The military campaign in Kosovo depends for its legitimacy on what fifty years of human rights has done to our moral instincts, weakening the presumption of state sovereignty, strengthening the presumption in favour of intervention when massacre and deportation become state policy.” But war is war, even if it is launched in a “good” cause, and human rights is too often the loser however stringent the control exercised by democratically elected politicians of their fighting machine. The war in Afghanistan has provided yet one more example. While anger at the atrocities of Osama bin Laden’s Al Qaeda movement appeared to move a large majority of humanity it remains clear that America and Britain’s decision to go to war was not the answer to ending this particular kind of terrorism. As Amnesty’s Secretary-General Irene Khan told European Union policy makers, “[h]uman rights do not need to be sacrificed to obtain security”. The US and the rest of the international community should have decided at the outset to pursue bin Laden with the same perseverance as Israel showed hunting down the Nazi exterminator-in-chief Adolf Eichmann to bring him to trial before the International Criminal Court, with quiet police work, following the accepted precepts of international law, not noisy war work. 1

For a fuller and profound discussion of the growth and extension of the norms of international jurisprudence, see W. Pfaff, ‘Judging War Crimes’, by 42:1 Survival (Spring 2000).

Ending War Crimes, Chasing the War Criminals

Indeed, if the preservation of human rights is really the first and paramount purpose of policy the whole approach to the kind of political impasses that lead to war becomes very different. Simply put, one avoids the recourse to war and leaders are compelled to search for alternative ways of dealing with the situation. Naive? Although the issue has not been exclusively a human rights, one can see an example of how such an approach could work out in practice with US policy towards North Korea, an uncompromising dictatorship. In this case Clinton had to find an alternative to war because the US feared if it chose the military option, North Korea might well retaliate against a US/ South Korean ground invasion with the two or three nuclear weapons it is supposed to possess. Apart from the devastation this would cause in South Korea it might lead to the loss of over 50,000 American troops. There has been any number of reasons why since 1994 America could have decided to get tough with a country that gave many indications that it had serious ambitions not just to build a nuclear bomb but to develop a long distance missile to deliver it. Even today North Korea is the arch-demon along with Iran for those who advocate the necessity of building an anti-missile shield to “protect” the US from nuclear attack from a “rogue” country. Yet, contrary to many of its basic instincts, the Clinton administration used the soft glove rather than the mailed fist. Indeed, North Korea became the main recipient of US aid in Asia. The US supplied free much of the country’s fuel oil needs and a good part of its food requirements. At the same time South Korea and Japan were building, free of charge, a state-of-the-art light-water reactor capable of supplying most of North Korea’s electricity needs for years to come. In retrospect, it seems amazing that debate in Washington in 1994 was almost dominated by discussing the best way of bombing North Korea. US intelligence had discovered that North Korea was about to remove spent nuclear rods from a cooling pond to recover plutonium, sufficient to make four or six nuclear bombs to add to its stockpile of two or three. Former Secretary of State Henry Kissinger, former National Security Advisor Brent Scowcroft and former CIA Chief Robert Gates loudly went public with calls for battle. The saving grace was that they ended up shooting each other in the foot. Gates and Scowcroft argued that the US should immediately bomb the North Korean reprocessing plant before the cooling rods could be transferred to it. This, they said, would minimise the risk of radioactive fallout. Kissinger advocated immediate tough sanctions and unspecified “military action”. But his timetable miraculously allowed time – a short three months while the rods cooled – both for a conference of the nuclear-haves and for sanctions to work. Military action should occur, he said, only if North Korea re-fuelled its reactor or started to reprocess its plutonium from the cooling rods. However, this seemed to ignore Scowcroft’s and Gates’ point about the dangers of an aerial bombardment on reprocessing facilities. Nor did any of them appear to worry that North Korea might use the two or three nuclear bombs they said the country already had to repulse an American attack.

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In fact the three of them talked themselves into the ground and made it easier for ex-president Jimmy Carter to journey to Pyongyang on a peace mission and pave the way for a deal with Kim II Sung to accept a nuclear freeze. In return, the US would be committed to working with South Korea and Japan to build two conventional power producing nuclear reactors. Since then there have been all manner of ups and downs in the US-North Korean relationship. Congress nearly sabotaged the agreement fashioned in the wake of Carter’s visit by reneging on White House commitments to begin liberalising the US’s trade and investment and ending sanctions. Kim II Sung died, to be succeeded by his son, Kim Jong II (who has since been succeeded by his son) who took the best part of five years to show he was firmly in the saddle. In 1998, when North Korea test-fired a long-range rocket over Japan, it seemed that Pyongyang was determined to play out its role as the world’s number one agent provocateur. Later in 1998, US intelligence spotted a massive hole being dug suitable for exploding secret triggers for a nuclear weapon. In the end, for a payment, the US was allowed to inspect the hole and found that a hole was all it was. Not without a great deal of political contortion, the Clinton administration managed in the end to convince Pyongyang of its good faith. North Korea, for its part, reciprocated by drawing in its horns, albeit often at the last moment. Meanwhile, the South Korean president, Kim Dae Jung – an ex-Amnesty prisoner of conscience – pursued his so ­called “sunshine policy” with the North. Despite immense opposition from the old guard he succeeded in sustaining it to where the temperature of the Cold War between North and South began to rise so the waters were unfrozen enough for a highly successful summit to take place in June 2000. At the end of 2000 Secretary of State Madeleine Albright broke more of the ice with her visit to Pyongyang. The North Korean peace was one of President Clinton’s rare positive foreign policy achievements. The Pentagon’s influence for once was stymied by North Korea’s supposed possession of nuclear weapons and, this time, willy-nilly, other less confrontational means had to be tried. The use of carrot rather than stick did not produce the end of narrow-minded, dictatorial communism in North Korea but it averted war and the immense human suffering and dislocation that are its inevitable corollary.2 The North Korean example, for all its inadequacies, is a parable of our times. It demonstrates that progress can often be made by engagement in moving nations out of their entrenched positions. Endless confrontation can be endlessly counter-productive. There is no conclusive evidence that isolating or cornering a nation succeeds in moderating its behaviour. Yet President George W. Bush, seemingly mindlessly, decided to end the Clinton approach to North Korea. Seven years later all he had to show for it is an end to the implementation of the 2

For a fuller discussion see R. Reoch, ‘InternationalLaw, Universal Rights, the Global Dilemma’, in J. Power (ed.), Vision of Hope – 50 Years of the United Nations (Regency Press, 1995).

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Carter-Clinton deal, a ratcheting up of North Korea’s nuclear bomb-making abilities and further missile tests. President Barack Obama has given the impression he had forgotten about negotiating with North Korea. Carl Bildt, the former prime minister of Sweden, made this point about counter-productiveness more effectively than most in an icily ironic essay on Yugoslavia and the Kosovo war penned for Prospect. (Bildt, for a time the UN secretary-general’s special envoy for the Balkans, is a man of political leanings, if elections are anything to go by, too far to the right for most of his countrymen.) “The Baby Bombers”, as the editor headlined the piece, was a wake-up call for the baby-boomers, now in the higher reaches of Western political power, “who have never learnt about war and power the hard way” and who, with their “smart wars – high rhetoric, high altitude and high technology; smart bombs for smart politicians”, believe there is a “third way in war”. Bildt wrote of meeting Gerd Schmueckle, a retired German general who was wounded six times on the Russian front during World War 2, but then served in the highest positions inside NATO. Perhaps, said the general, it is a question of generations. While the war veterans are losing their hair and teeth, the new generation suddenly has a different attitude towards war. For Schmueckle, war was associated with horror beyond imagination, leaving deep psychological scars on individuals and nations. Bombs, he said, “do not create peace: instead they breed hatred for years, perhaps for generations.” A decade and a half on we can see the truth of this in Yugoslavia. The bombing of Belgrade did not forestall ethnic cleansing, it appeared to precipitate it. And it has bequeathed a cauldron of mutual hatred and a political potage in Kosovo that no amount of NATO and UN policing and Western economic aid can clear up, even if it were forthcoming in something like the quantities promised – another example of the war-time rhetoric that misled the public. Aficionados of Carl Bildt had the chance to pursue his thinking, one year after the bombing, in Survival, the quarterly journal of the International Institute for Strategic Studies. This is a much more lengthy discourse on the limits of force, and looks not just at Kosovo but at Bosnia before the conflict. Its essence is to challenge what has now achieved the status of conventional wisdom – the idea of the supremacy of air power. Bildt argues that the Dayton Agreement that brought an end to the fighting in Bosnia was “far more a victory for diplomacy than for force”. He certainly does not deny that the NATO air operation, initiated on 30 September 1995, had a significant psychological impact during its first few days but the political momentum that led to the Accord came about primarily because of a new diplomatic approach. The essential diplomatic innovation was the willingness of the US to accept some of the core demands of the Bosnian Serbs; demands that the US previously had refused even to contemplate. In particular the Bosnian Serbs had consistently demanded a separate Republika Srpska inside a weak Bosnian framework. After Dayton there was an unforgivable lull in Western diplomatic activity. Neither the European Union nor the US was willing to launch any serious

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diplomatic initiatives to head off the brewing crisis in Kosovo. Albanian opinion inside Kosovo, once more fluid and open to diplomatic options, was allowed to harden, leading to the birth of an armed insurrection and driving the population into the embrace of the Kosovo Liberation Army. The West, misreading the lesson of Bosnia, tried to head off Serbian repression with the threat of air power. Thus when diplomacy failed – and the Rambouillet agreement demanded much more from Slobodan Milosevic than the “peace agreement” which ended the war – the West had little choice but to make good on its threats. The air operation, however, could not prevent a major humanitarian disaster. Whether it triggered it, Bildt, more cautious than I, just says “will remain a subject of debate”. Perhaps we can suggest the direction of an alternative way with a question: what would it have taken to draw Milosevic’s sting in the early days of the crisis in Yugoslavia – a move to offer Yugoslavia, as has recently been offered to its successor states, a chance of entering the European Union if the peace were kept? Or perhaps it would have been sufficient to offer post-communist Yugoslavia massive amounts of aid to effect a transition to modern capitalism, as long as human rights were respected. (Sums which now, in retrospect, would seem modest compared with what the West has subsequently had to spend via the UN, NATO and the humanitarian relief agencies.) Or what would it have taken to persuade the Hutu-run government of Rwanda to shelve its contingency plans for massacring the minority Tutsis? Even if every member of the Hutu elite had to be bribed with ten Mercedes each it would have been peanuts compared with what was spent in feeding the fleeing refugees both inside and outside the country. More seriously, a programme instituted even as belatedly as the early 1990s (there had been many earlier smaller-scale pogroms from 1959 on to give warning aplenty of what was to come) to deal with the underlying issues of land-shortage and lack of agricultural development together with the ill-training of the institutions of government, in particular local administration, the courts, the police and the army, would have cost a significant amount, but then again nothing compared with later sweat, guilt and even expenditure. As a foreword to Amnesty’s yearbook for 2000, Pierre Sane penned an essay with the provocative title “Soldiers in the Name of Human Rights”. It was an intellectual’s demolition job on the modern-day crusader school of thought. “Are invasion and bombardment by foreign forces justifiable in the name of human rights? And have external military interventions succeeded in winning respect for human rights?”, he asked. His reply is this: “Amnesty International has long refused to take a position on whether or not armed forces should be deployed in human rights crises. Instead, we argue that human rights crises can, and should, be prevented. They are never inevitable. If government decisions to intervene are motivated by the quest for justice, why do they allow situations to deteriorate to such unspeakable injustice?” I would add other questions: Are not Western interventions in danger of

Ending War Crimes, Chasing the War Criminals

committing war crimes themselves – as with the US and NATO bombing of exYugoslavia, the French intervention in Somalia, the embargo on food and medicines destined for Iraq after the first Gulf War, the US/UK invasion of Iraq to topple Saddam Hussein which ended up laying low a whole country and killing hundreds of children and Israel’s war with Gaza in 2014, supposedly to stop Palestinian rockets landing on Israeli neighbourhoods? Sane points to Yugoslavia. The NATO governments which bombed Belgrade are the same governments that were willing to deal with Slobodan Milosevic’s government during the break-up of the original Yugoslavia and were unwilling to address repeated warnings about the growing human rights crisis in Kosovo. As long ago as 1993 Amnesty was arguing in public: “If action is not taken soon to break the cycle of unchecked abuses and escalating tensions in Kosovo the world may again find itself staring impotently at a new conflagration.” A similar argument, continues Sane, can be made for the West’s other great preoccupation during the 1990s – the dictatorial regime of Saddam Hussein, defeated and driven back after an attempted invasion of neighbouring Kuwait. It was Amnesty which called for international pressure on Iraq in the mid-1980s, especially after the 1988 chemical weapons attack by Saddam Hussein’s troops on the town of Halabja which, in a crime against humanity, killed an estimated 5,000 unarmed Kurdish civilians. Amnesty also drew attention at this time to Saddam’s notorious conduct towards his political enemies, incarcerating and torturing their children. Yet Western governments were then four square behind Iraq as it fought a World War 1-type conflict of attrition with its neighbour Iran, whom the US could not forgive either for its fundamentalist stridency or for taking hostage the diplomats of the US embassy a few years earlier. The West simply turned a blind eye to Saddam’s human rights violations, while it sold him increasingly sophisticated weapons of war. Another war crime. Sane is also right to question the rhetoric of Western governments. When they do intervene they say they are motivated by “universal values”. “But why”, asks Sane, “is the international community so selective in its actions?” The imposition of UN sanctions on Libya or Saddam Hussein’s Iraq stands in marked contrast to the non-imposition of sanctions on Israel for refusing to comply with UN Security Council resolutions or invading neighbouring Lebanon and, later, Gaza. The actions over Kosovo and East Timor beg the question of why little or nothing was done in Rwanda or Chechnya or today in the Sudan. This begs another question. If the motivation of governments is “peace”, as they often claim, why do they fuel conflicts by supplying arms as they did for many years to the Mujahidin and Taliban of Afghanistan or allowing their nationals to trade in arms? During the 1990s despite the recent rapid increase in wars in Africa arms exports to the region doubled, mainly small arms such as assault rifles and submachine guns that have been virtually ignored until recently by those who seek controls on nuclear, chemical and biological weapons, yet which appear to be the weapons that cause most of the damage in most of the wars. In the case of East Timor two of the major powers who argued for in-

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ternational intervention – the US and the UK – were also the major suppliers of arms to the Indonesian government whose security forces were responsible for widespread and systematic violations of human rights in East Timor. *** The history of the last few years has demonstrated vividly that those who seek to do good by military intervention find, more often than not, that it is a doubleedged sword. Even war crimes can be committed by the “saviours”. In Somalia, 23 years after a UN military intervention – in which, in fact, the US army acted as an autonomous agent – there was no functioning government and no judiciary until 2013 – and those are precarious. Continued fighting, especially in the south, imperils hundreds of thousands of people already suffering famine. The UN forces themselves have committed serious human rights abuses. The unsuccessful attempts of the US Rangers to arrest one of the guerrilla leaders diverted them from the ostensible purpose of their mission. They killed and arbitrarily detained hundreds of Somali civilians, including children – a still unpunished war crime. This is not to argue against intervention in every situation. We can see how disastrous it was in Rwanda when the UN pulled out its forces as the mass killings began and up to a million people died in the ensuing genocide. Yet, if we have our wits about us and not just our reactive impulses, we will observe that none of the human rights tragedies of recent years were unpredictable or unavoidable. The international community needs to deploy its influence before things explode. A year before the genocide in Rwanda the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions warned of what was to come. Amnesty, on its part, repeatedly exposed the Indonesian government’s gross violations of human rights, not just in East Timor but also in Aceh, Irian Jaya and the rest of Indonesia. As Sane concludes his argument: “We fear now that our pleas for action on other countries are similarly being downplayed. When some human rights catastrophe explodes will we again be expected to see only military intervention as the option?” All of which brings us back to the main point: prevention. Prevention work may be less newsworthy and more difficult to justify to the public than intervention in times of crisis. It requires the sustained investment of significant resources without the emotive media images of hardship and suffering. It is the hard day-to-day slog of human rights vigilance – using diplomatic measures to persuade governments to ratify human rights treaties and implement them at home. It means ensuring there is no impunity and that every time someone’s rights are violated the incident is investigated and those responsible brought to justice. Not least, it means speeding up the work of the International Criminal Court and enabling it to take on more cases. It also means that governments must be prepared to condemn violations of human rights by their allies as well as their foes. It demands a halt to the sale of

Ending War Crimes, Chasing the War Criminals

arms to human rights violators. It means ensuring that economic sanctions do not hurt the wrong people – as in Iraq, where it is estimated during the rule of Saddam Hussein that 40,000 children a year died because of the tight sanctions on essential foods, medicines and hospital equipment. That in itself was a crime against humanity. Why should we be forced to choose between two types of failure when the successful course of action is known? The best we can do is to ensure that whatever route is chosen we do what we can to contain the suffering and let the powerful know our anger. Prevention of human rights crises is the correct course. The problem is not lack of early warning, but lack of early action. Only by protecting human rights everywhere, every day, will we render the debate over humanitarian action obsolete.

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13

Conclusion – The Perspective from Outer Space

A world of law would be a sight to behold. Instead of war war, to use Churchill’s telling phrase, it would be jaw jaw. All international disputes between nations would end up automatically, without a second thought, being adjudicated by the World Court – following in the footsteps of Nigeria which, in 2004, in dispute with its neighbour Cameroon over the ownership of the oil-rich Bokassa Peninsular, took the case to the Court, and lost. President Olusegun Obasanjo of Nigeria speedily implemented its ruling. All countries or factions within countries that appeared to be preparing for an aggressive war would be given by the Security Council a shot across their bows. Leaders would be warned that they could well be arrested for starting a war of aggression, and that jail terms in the cells of The Hague would be long ones. All presidents, prime ministers, ministers of defence and senior military commanders would be told by the UN Security Council if military action went ahead they would additionally be prosecuted for any war crimes or crimes against humanity carried out by their troops and intelligence services. After centuries of slow human and legal evolution we now have all the instruments of peace-making and justice in place, and the above scenario need not be fanciful. The creation of the International Criminal Court in 1998 was the last piece in the jigsaw. It has taken many wars and the many horrors of genocide and torture to bring this about. But it has happened. It is there on the world statute book, with 95 per cent of the nations of the world, including the big powers of Christian Europe, the scene of the world’s greatest, most frequent and most bloody wars, signed up. The international justice system may be incomplete with the US, Russia, China and India yet to ratify membership of the ICC. (However they are all members of the World Court with the exception of the US since its withdrawal from the Court following its objection to the prosecution initiated by Nicaragua over the US mining of its main harbour.) In the round nearly all the nations of the world have taken a “giant step for mankind” (to use Neil Armstrong’s memorable phrase, the first man on the moon).

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The statesmen, politicians, activists of the non-governmental organisations and journalists who fought for this turn of events should lift their heads high. Like Wilberforce, with the outlawing of the slave trade, they did it! It is a better world! Since World War 2 there has been a fast growing (relative to previous ages) questioning sensibility about war as an inevitable part of human life. The clash of warriors has echoed through the centuries down to the creation of the first civilisations five thousand years ago. For most of that time being a warrior was regarded as an honourable activity that tested men’s metal in a great and good cause. This appears to be less and less true. War between nations has never been so infrequent and the number of civil wars has plummeted over the last 30 years. The number of violent deaths caused by war has fallen dramatically. The machismo of war seems to be in retreat. The new atmosphere of anti-war is most apparent at the UN, both in its Assembly and in the Security Council. War does happen, but it is not smiled upon and rarely tolerated for very long before it is condemned and its perpetrators sanctioned. The World Court, the oldest of the legal institutions, has a proud history of arbitrating and settling major inter-nation disputes. The ICC has already shown its teeth, prosecuting many warlords and encouraging by its example national courts to do the same. It may be difficult to prove that the ICC’s deterrent effect is working at this early stage, but the Court and its sister courts have clearly altered the international atmospherics away from war war to jaw jaw. It cannot be measured with precision yet, but it has certainly infused its principles and ideals into the body politic of many nations. Peace and law existed for thousands of years in the time of some of the early Egyptian dynasties. So have they among small groups of peoples, like the Inuit. Humans are not made to fight or to be lawless. Within almost every culture there are forms of religious practice where prophets have abjured war and praised justice. “Beating spears into pruning hooks”, an adage of the Old Testament, may for many be nullified by Moses’ leadership of ethnic cleansing, yet it is a telling saying of the Bible, remembered by hundreds of millions and quoted with approval for millennia. So it is with Christianity, Islam, Jainism, Buddhism and Confucianism, among others. Ambiguities may exist, as I mentioned with Judaism, but the peace and justice element is always strong, even if it has been denied, Peter-like, again and again. Today it has been brought to the forefront of international discourse by Pope Francis, a man who has experienced a long transition in his own life.1

1

See Jonathan Power, ‘When The Pope Turned His Back’, World Policy Journal (New York, Spring 2016).

Ending War Crimes, Chasing the War Criminals

*** The space probe Voyager 1, now reaching past the outer edges of the solar system and moving into interstellar space, further than any man-made object before, in 2013 sent back photos of planet Earth. Our world looked like a pinprick of light, just as Saturn looks to us. How Earth will look now that Voyager 1 has left the solar system and travels further is only to be wondered at. Our sun will be a bright spot in a dark sky – it is a star and shines but we, its dull acolyte, will have seemingly disappeared, so small and insignificant are we. Only since 2013 and the taking of this photo has it become quite so apparent how little importance we should attach to our planet and its peoples. Yet many of our religions point out that, in the eyes of God or the Supreme Being, every one of us is significant. Human beings take their own existence very seriously. We regard ourselves as the centre of the universe, together with those we love. Romantic passion which enables human kind to procreate and make our Earth populated underlines our sense of exclusiveness. Our cities are regarded as monuments to mankind’s endeavour. Our art, literature and music prove we have soul and profound imagination. But we are unable to square our existence with the nothingness our galaxy and universe impose upon us. We are truly lost in the Milky Way. Does it matter if we have fought wars or made peace, committed genocide or rescued people from death, sought justice or perpetuated injustice, prosecuted war criminals or let them hide in Paraguay, Argentina, Chile and Brazil, built great or bad architecture, damned the greatest rivers or rolled back the sea, built ships, cars and planes, invented electricity, mobile phones and computers or invented the Maxim gun and nuclear-tipped rockets? Does it matter that America dropped nuclear weapons and obliterated two Japanese cities or that Britain has conquered at one time or another 80 per cent of the world’s countries? Does it matter that Japan disembowelled the innocents when it invaded China in 1937? In the light of our nothingness are these not much too? Another question: If there is a God of the universe – and some astronomers are now saying there could be multiple universes – why should this God need to make us? We may need Him. But vice versa? It seems we are an arrogant people, obsessed with ourselves and sure that since many of us need a god that God exists. It could be it is we who have made that decision, not Him. We are left with the unanswerable conundrums: What are we for? What are our artefacts for? Can we ever find an honest, sciencebased answer to these questions? Not if we live a million years are we likely to find an answer – although I could be wrong. Well, let us say a thousand years. Certainly many centuries. Perhaps the answer will come in the time of our children’s children’s children to the power of a 100. Meanwhile most of us Earth-dwellers try not to be arrogant and arrogate for ourselves the answers to the perhaps unanswerable. So we just get on with

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the life we have: getting as educated as we can, finding a mate, rearing our families, tilling the soil or inventing and producing countless products. What is it ultimately all for? We truly have no idea. Yet, but yet, this is the only existence we know or are ever likely to know. We try and make the best of it. And so we should, which should mean not enjoining war, war crimes and crimes against humanity, thuggishness, destructiveness, criminality, discrimination and exploitation. We want in our world, honesty, compassion, responsibility, love, fairness and justice. And good governance of home, nation and world. How many of us can put their hand upon their heart and say they have never failed these ideals? We had better get on with life for all its faults and complexity. Worrying over the fact that we are less than a pin prick in our galaxy, much less our universe, gets us nowhere. We must give of our best, make the best, adore our world and its peoples and then peacefully fade away, our job of living on this quite insignificant planet well done.

Index

Index A

Amnesty



Annan, Kofi AlQaeda Argentina Arzu, Alvaro Auschwitz Aylwin, Patricio B

23, 27-31, 50,59,62-67, 70, 72-74, 81, 83-84, 88-90, 92-93, 98, 102, 109, 112 117, 120, 122-124 70 21, 105, 118 81 73, 74 1-3, 75, 106 86

Bangui 27, 28-31, 33-35 Bangladesh 77-80 BBC 46, 110 121 Bildt, Carl Bingham 89 99 Becker, Elizabeth BNP 79, 80 23, 43, 50-51, 82, 94 Blair, Tony Bokassa 27-29, 31, 33, 36-39, 41 Bosnia 105, 113 1, 2, 5-6 Brezinka, Poland Britain 23, 81-83, 89, 118 Bush, George H.W 76, 78, 99, 101, 107-108 21, 23, 43, 46, 48, 51, 55, 73 Bush, George W. C Cambodia 22, 23, 77, 93, 95-103, 105 Carpio, Ramiro de Leon 73 Carter, Jimmy 67, 75, 98-99, 119 Catholics 13, 15, 18, 69, 106 Cerezo’s 73 Central African 27, 30, 33, 34, 35, 39 Chea, Nuon 103 China 24, 26,78-79, 81 Christian 17-18, 54, 57, 63, 84, 86, 106-107, 127 Churchill, Winston 19, 127 CIA 3-5, 11, 21, 22, 47, 61, 69-71, 76, 78, 84-85, 119-121, 123-124, 127 Clinton, Bill 21, 23, 24, 26, 70, 97, 99-100, 107-109, 111-112, 117, 119, 121

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132

Index

Costa Rica CPK Croatia



59-60, 65 95 105-106



D

Dayton Deichmann, Thomas Dhaka Dietrich, Rohn Dominguerz Dorfman, Ariel Djilas, Milovan Djindjic, Zoran Duch E

Eckmann, Otto Eichmann, Adolf Enders, Thomas El Salvador ETA Europe F



111, 113, 118, 121 109-110 77-80 12 60 91 106, 112-113 113-114 102



France Financial Times Frei, Eduando G Gaddafi, Muammar Gandhi, Indira Garcia, Lucas Garzon Gates, Robert Gaza Germans Germany Gestapo Gorbachev’s, Mikhail Guardian Guatemala Guzman, Judge Juan

3 1, 3-6, 10, 18, 82, 118 72 59, 67, 84 81 82, 107, 127 26, 27, 29-30, 34, 49 47-48 84, 88 36, 50, 54, 81-82 77-79 66, 72, 75 88, 89 119 123 2-7, 9-11, 18, 19, 20, 83, 109, 121 1, 3-4, 8-9, 15, 17, 26 13, 17 73 107 59-74, 76-77 91

Index

H

Hague, William´Jefferson Hammerberg, Thomas Harden, Blaine Herod Herrmann, Lothar Himmler, Ernest Himmler, Heinrich Hiroshima Hitler Hoess, Rudolf Franz Ferdinand Hoffman Holbrook, David Holocaust Humphrey, Hubert Hussein, Sadaam I

International Criminal Court International Criminal Tribute International Court of Justice Ignatieff, Michael India Indians International Herald Tribune Israel ITN J

Jerusalem Jewish Jews Jung, Dae Kim K







Karadzic, Radovan Kennedy Kenny, George Kenyatta, Uhuru Keynes, John Maynard Kimmerling, Baruch



23, 24, 42 100 110 1 4 6 13-18 20 8-10, 13, 16-18, 50, 55 2, 6-7, 20 88-89 111, 118 8, 11, 108 44 46, 48, 51, 93, 123-124 12, 22-26, 36, 39-42, 48, 51, 58, 77, 81, 92-93, 105, 117-118, 124, 127-128 77, 105, 113-114 92, 94 118 24, 77-79 61-63, 67 68 24, 81 109-110 55 4-5, 7, 10-11, 15, 18, 24, 54, 56-57 1, 3-11, 13-15, 17-18, 53, 5 7 120 105, 116 84-86 108 40-42 9, 17 55

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134

Index

Kissinger, Henry



43-45, 55, 77-79, 82, 84-86, 98, 119 111-112 3-5 85 87

KLA Klement, Ricardo Korry, Edward Krauss, Clifford L

Laden, Osama Bin Laird, Melvin Lake, Tony Lawrence, Geoffrey Lincoln, Abraham London Lucas Luther, Martin King

118 97 97 20 20 81-82, 87-88 66 103

M

Mandelson, Peter Mano Marxist Milosevic, Slobodan Mladic, Ratko Molina, Perez Montt, Efrain Rios Morris, Roger Mossad Muslim N

Namara, Mc. NATO Nazi New York New York Times









OAS Obama, Barack

43 23, 109, 111-112, 115, 117, 121-123 2-6, 8-13, 16-19, 45, 82, 102-103, 110, 118 82 1, 37, 50, 54, 68-69, 75, 87, 96, 98-99, 102, 108, 110, 117 28, 30, 32 93, 101, 109 44-45, 77-79, 84-85, 97 96



Ngargba NGO Nixon, Richard Nol, Lon O

82 61 84 23, 105, 107-108, 111-115, 122 105, 108-109, 115-116 75-76 74-75 97 4, 5 54, 57, 105-107, 110-111







72 21-22, 24, 57, 75, 121

Index

Obasanjo, Olusegun Odinga, Raila

127 40

P

Pakistan Paul, Pope John Paz y-Paz, Claudia Penh, Phnom Perrin, Father Pinochet, Augusto PLA PLO Powell, Collin Q

Quinn, Kenneth

24, 79-80 106 75-76 95-98, 100, 102 30 36, 48-50, 81-87, 89-91, 93-94, 97 57 54, 56 107



97-98

R

Reagan, Ronald Rogers, William Robertson, Geoffrey Rouge, Khmer Rwanda











S

Sharon, Ariel Sen, Hun Samphan, Khieu Schneider Schumann,Robertson Sihanouk, Norodom Sarajevo Sung, Kim Il Soviet Union T

Thatcher, Margaret Trapp, Wilhelm Truman,Harry Twining, Charles The Economist





21, 45, 50, 68-69, 71-72, 75, 94, 99 97 20, 82, 88 95-103 22-24, 93, 95, 105, 118, 123-124 53, 55-58 100, 102 103 85 21 96, 100 115 120 18, 34, 50, 79, 94, 96, 99 36, 50, 54, 81-82 7, 8 21 98 68, 79, 102

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136

Index

U UN

UNICEF UK US







V

Vietnam Voyager 1



97 128

W

WWO World War 1 World War 2



92 14-15, 17,20, 123 19, 97, 103, 105-106, 121, 128



Y

Khan, Mohammad Yahya Yugoslavia



21-26, 28, 36-37, 40, 46-48, 50, 58, 73, 76, 7-79, 92-93, 96, 99-102, 107-110, 112-114, 117-118, 121-124, 127-128 96 21, 25-26, 99, 124 3, 13, 17, 19-26, 36-39, 43, 44, 47-51, 57, 59-61, 64, 66-72, 74, 77, 81-82, 85-86, 94, 96-97, 99-101, 107-109, 111,113, 117-121, 123-124, 127





78 20, 22-23, 26, 105-106, 109, 112-113, 115-118, 121