I was shocked by a statistic mentioned in the article “My Neighbor the Suspected War Criminal” — “Decades after passing the first substantive human rights statutes that make it possible to prosecute war criminals for crimes like torture and genocide, the U.S. has successfully prosecuted only one person under the laws.” Yet on some level, this statistic also makes sense. I’ve previously written about how the U.S. has long held pragmatic interests that prevent the prosecution of war crimes (last week, I mentioned this in the context of Israel-Palestine, and after the events of the weekend, prosecution seems even less likely…). Indeed, if the U.S. still functions as the “world’s policeman,” then the U.S. should hardly be the “world’s judge.”
But what country should step in to take its place? We hear about the efforts of two Syrian refugees to hold the Assad regime in Germany, thanks to the German legal system’s concept of universal jurisdiction. But prosecution in Germany only goes so far — even if Germany has no pragmatic/realpolitik objection to prosecuting war crimes — the New Statesman article notes that “most Syrians … cannot follow it in detail in their home country.”
Actually, this observation gets at what I’ve been curious about regarding war crimes prosecution. If the most “justice” Syrian refugees will get is to come from trying Assad in abstentia, to a largely uncaring international audience, then what is the point of holding a trial in the first place? That is, what is the point of holding a trial if nobody will be deterred from committing war crimes in the future, nor will anyone have to suffer real consequences as a result of the trial? On the other hand, there are cases where Syrian officials have been held responsible in Germany, as The New York Times article discusses. But this, too, is an imperfect process: Witnesses are intimidated and refugees are afraid to speak up about their trauma in court.
I’m also deeply curious about the level of moral responsibility that we should attribute to leaders given the weight of historical context. Take the events of this weekend in Israel: There’s a fair argument that the extreme right-wing government of Israel, by refusing to respect the possibility of a two state solution and brutally trampling on the rights of Palestinians, bears some level of responsibility for provoking the Hamas to engage in increasingly violent terrorism. Of course, the brunt of the responsibility for taking hostages and killing civilians falls squarely on the shoulders of the Hamas — but should the actions of the Netanyahu government be any sort of mitigating factor in any war crimes trials that arise in the future? To what extent should past historical context influence the level of moral responsibility? Should the number of Palestinians oppressed and killed by Israeli soldiers be weighted against the number of Israelis killed and taken hostage this weekend? And, if a trial happens under universal jursidiction, should the German court system be the one responsible for determining the answers to all of these questions?
