When he and his team started on this research “we were soon told it was unrealistic, amoral and hare-brained”, writes Damien Scalia, a professor of criminal law at the Université libre de Bruxelles. “Wanting to meet the greatest criminals – genocidaires, perpetrators of crimes against humanity and war criminals tried by international courts – seemed, on the face of it, impossible. Besides, giving them a platform was seen as questionable.” But he quickly became convinced it was necessary, if not easy. Speaking of an experts’ meeting in Geneva in 2010, he says: “We were surprised that when asked what the perpetrators of war crimes thought of criminal law, there was no response. The victims’ point of view had been extensively discussed.”
His book, entitled “War Criminals on Trial” is based on interviews with 70 people tried by international courts, of whom 11 were acquitted. Of the 70, some 60 were tried by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Two were tried by the International Criminal Court (ICC – that research is ongoing) and the rest by other jurisdictions, especially the hybrid War Crimes Chamber of the Court of Bosnia and Herzegovina. The research was conducted from 2010 to 2022.
The ICTY was a UN court established in The Hague, Netherlands, to try those most responsible for serious crimes during the Balkans wars of the 1990s. Its mandate lasted from 1993 to 2017. The UN created the ICTR in late 1994. It tried only those most responsible for the genocide against Tutsis in Rwanda. Established in Arusha, Tanzania, it closed its doors at the end of 2015.
Whenever possible, interviews for this book were conducted in a place chosen by the respondents, the author writes, “though most were held in prison”. The ICTY and ICTR (like the ICC) did not have a prison for convicts, but sent them to other countries that agreed to take them. The research therefore involved travelling to a number of countries both in Europe and Africa. Authorizations were often lengthy and difficult to obtain. Most of the people approached agreed to talk about their experience of international justice, but a few did not, because they had “nothing to say” or did not trust the interviewer. To preserve anonymity, respondents cited in the book are not named.
“It’s unfair, it’s unfair”
The author says the reason the research participants agreed to take part was, in their words, to be able to talk about their experience of international criminal justice and not about the acts for which they had been tried. However, some did discuss the acts for which they were convicted, “in the context of talking about the judgment and sentence handed down and, above all, the forms of responsibility attributed to them”. Of the 60 interviewees tried by the ICTR and ICTY, only three admitted to committing crimes. “The others did not acknowledge responsibility or the crimes attributed to them, but justified their behaviour as lawful acts in wartime.”
“The international judicial system leaves me very bitter,” says one ICTR convict cited in the book, “despite all the hope I placed in it compared with domestic systems of justice, especially the Rwandan legal system.” Another one echoes this feeling: “It’s unfair, it’s unfair. But I think that with the legal system you have to give in. It’s not an easy job. I wouldn’t like to be in the judges’ shoes, nor the prosecution’s.”
An ICTR convict points to the court’s failure to try any Tutsis, targeting only Hutus. “For me, one of the ICTR’s principal missions was reconciling the Rwandan people and restoring peace,” this person says. “To my mind, the tribunal made the divisions deeper rather. [It exacerbated] the divisions, the resentment between the peoples, the feeling of injustice, and then not just among Rwandans themselves, I think it has created a feeling of revision against international institutions.”
Interviewees tried by the ICTY and ICC do not seem to have any more favourable opinions of the courts that tried them. “In my case, thinking it was a completely impartial tribunal, I turned myself in,” says an ICTY convict. “But I think that unfortunately there’s a lot of injustice done by this tribunal and particularly by the people administering justice over there. I have a deep-seated wish to talk about it, to denounce this state of affairs, even if it’s to people who have no power to change things.” And an ICC convict says: “I never really had a fair trial. This isn’t justice.”
Victors’ justice?
“At the idea of meeting the ‘greatest criminals’, I experienced a mix of ingenuousness and morally questionable curiosity,” writes Scalia, “combined with a personal question I would later explore with my psychoanalyst: how can such criminals live with the guilt of having killed hundreds or thousands of people when I am unable to live at peace with my small parcel of everyday guilt about not always reacting appropriately or about doing wrong? I found a partial answer: most of the people I met did not feel guilty and did not acknowledge the responsibilities ascribed to them. As psychologist Daniel Zagary explains, the guilt of mass atrocities perpetrators is merely an expectation by those who did not participate in the crimes. It is psychologically difficult, if not impossible, for perpetrators to feel guilt without self-destruction.”
But that is only a partial response. And, as the book unfolds, many of those interviewed see the procedures as flawed at all stages. Above all, they do not identify with the charges as legally expressed in their indictments, do not feel “heard” during their trials, and see the courts as partial, a form of “victors’ justice”. They see themselves as scapegoats in a legal system imposed by others, whether the “other” be the victor in the war or Western states, or both. Here are some of their comments:
“I say, about my position, that the people who drew up the indictments, they were influenced by lobbies, they had their own interests. My conclusion was that they needed to strike a balance on both sides. When I say sides, I mean the Serbian and the Bosniak side. So my impression was that they wanted to feed this Serbian lobby and satisfy them in one way: I was the one who massacred the Serbs.” (Acquitted, ICTY)
“The judges have become active RPF fighters.” (Convicted, ICTR). [The Tutsi-led Rwandan Patriotic Front won the war, taking power in Rwanda in July 1994 and ending the genocide. It is still in power today.]
“Percentages have been set for indictments. It’s just a question of maths. They don’t care about the circumstances. What counts is 80% Serbs, 15% Croats and 5% Bosniaks. There have been diplomatic games between the so-called allies and this has a similar impact on the court. There are political tensions in the appointment of judges.” (Convicted, ICTY)
International criminal courts would seem to be apolitical, the author writes, and far from French judge Denis Salas’s definition of political trials as “eliminating rivals by teaching them fright…in absolute monarchies, empires and totalitarian regimes”. Yet the respondents mainly viewed this form of justice through a political prism. “This can be analysed as a discursive game to delegitimize the justice system that convicted or simply tried them,” Scalia writes. “Nevertheless, they highlighted or recalled crucial political elements that pervade this form of justice. These elements now lie at the heart of the criticisms levelled at the International Criminal Court. For the respondents, the political prism had three faces: the trial was experienced as a continuation of war; it reflected a justice of “others”; and it was a criminal law of the enemy.”
Individual criminal responsibility
In a chapter entitled “The Scapegoating Rhetoric”, the author explores how individual criminal responsibility – the backbone of contemporary international criminal courts – is applied to accused persons in the context of mass crimes. “The focus on individual responsibility on the part of international criminal justice means that collective responsibility is set aside,” he writes. “Yet crimes judged by international courts are by definition mass crimes, i.e. with a mass of victims but also a mass of perpetrators. The imposition of responsibility and the condemnation of a few individuals can lead them to feel like scapegoats.”
Here is what some of the respondents have to say:
“It’s a terrible, terrible weight to bear.” (Convicted, ICTR)
“What’s hardest for me, when it comes to my family, my children and friends is the phrase ‘convicted of war crimes’.” (Convicted, ICTY)
“The biggest burden was reading the indictment. I was ashamed for the people in court and for myself. Not even 10% of it was true.” (Convicted, ICTY)
Many of the respondents cited in the book express shock and disbelief at the discovery of their indictment, which one describes as “gibberish” and others say they simply did not take seriously. “While many accept guilt for participation,” the author writes, “they reject responsibility for the crime as a whole, that is, responsible for genocide, crimes against humanity and war crimes in entirety. Although not legally attributed with the totality of the crime, this is often what happens morally.”
The moral imputation of mass crime as a whole is revealed in the symbolic weight that falls on the accused or convicted, Scalia continues, and inevitably leads to a rejection of the responsibilities attributed.
Joint criminal enterprise and command responsibility
International criminal courts include in their statutes the legal concepts of joint criminal enterprise and command responsibility, but these appear particularly problematic for the people interviewed:
“All the people did the same acts, the same things, but somewhere, some of the attackers fled, they raped, they killed, and so on. Joint criminal enterprise is used incorrectly, they shouldn’t be allowed to convict people on that theory. I’m guilty, because members of the joint criminal enterprise did something. I have not met these people, I am guilty of their actions. It would be easier if I could understand why they found me guilty.” (Convicted, ICTY)
“To what extent can a commander, a general, really know all the details in a conflict, in chaos? So I think the judges and prosecutors have misunderstood.” (Convicted, ICTY)
“The responsibility of the hierarchical superior is vague. It’s a very vague concept at the ICTR. There is jurisprudence that is applied in my case and not in others. I commanded a battalion of about 800 people. I wasn’t the only one in command.” (Convicted, ICTR)
The burden of the acquitted
Ultimately, a sacrifice is required, the author writes. This takes the form of exclusion of a member of the community, notably through long prison sentences served “elsewhere” (in Benin, Germany, Estonia, Denmark, Mali etc.). This exclusion even continues for convicts who have served their time. Most ICTR convicts who are released cannot join their families and continue to live in Benin or Mali, without being able to leave.
“But this pales in comparison to the acquittals at the ICTR,” writes Scalia. “Those acquitted, even though the law declared them innocent, were effectively banished forever from their community and, above all, from their family.” They did not feel safe to return to Rwanda, and other countries would not take them. Scalia says acquitted people to whom he talked felt a sense of injustice during the legal proceedings and afterwards. They described how “the criminal process is designed exclusively around the idea of guilt, in which the debate is not about possible exoneration, but rather about the conditions and details in which the unanimously established facts were committed.”
The author points out that neither the ICTY nor ICTR Statutes contained provisions explicitly providing for acquittal. As Justice Info has reported, acquitted and released persons have remained a headache for the Mechanism managing residual functions of the ICTR after it closed, and several of them are still in an extremely precarious situation, notably in Niger.
“Despicable subjects” as sources of justice?
The final chapters of the book discuss why belief in international criminal justice persists, why the views of those who have been tried are often dismissed, and the value of their words. Rather than seeing them as “monsters” who must be excluded from society, the author explains that he tried to take an empathetic, humanist approach during interviews.
“Wanting to rebuild society after this type of event often means rebuilding it with all the players, both perpetrators and victims of the crimes,” writes Scalia. In his conclusion, he writes that there is a need to take account of the experience and discourse of “despicable subjects” (i.e. those who were tried) as a potential source of justice. “This does not mean forgiving or vindicating the atrocities committed, let alone condoning them, but merely reinstating the perpetrators as reasonable beings in order to create a culture of accountability instead of a culture of guilt.”
