Conciliation seems to be more to the purpose, if opposing bodies are expected to work together to govern a country. Humphrey said in his study on From Victim to Victimhood, "By contrast, trials have played a much smaller role during political transition and thus have addressed far fewer victims. They have, however, been very important in re-establishing the authority of law and the state" (2003 184)
What division of labor among states, international institutions and non-governmental organizations is likely to prove most effective in meeting the challenges of the post-Cold War era in the future?
George W. Bush, President of the United States of America, appears to believe that the United States must police the world, leading other nations into controlling what he considers dangerous policies in other countries, while taking preemptive action against them on his own. While Bush knows that the laws of war are different from the laws of peace, he has declared a literal "war on terror" in which he has felt free to impose the laws of war.
In peacetime, governments are bound by strict rules of law enforcement. Police can use lethal force only if necessary to meet an imminent threat of death or serious bodily injury. Once a suspect is detained, he or she must be charged and tried. These requirements are codified in international human rights law. In times of war, law-enforcement rules are supplemented by a more permissive set of rules as when a combatant is captured, he or she can be held in custody until the end of the conflict, without any trial (Roth 2).
Going by these rules of war during, within and without the known boundaries of the war (Iraq and Afghanistan), in any country he finds terrorists, Bush has lowered the esteem with which other countries hold the United States in regard. He has chosen to disregard the peacetime "strict rules of law enforcement," chosen instead the war law of holding prisoners in Guantanamo without regard to their personal and international rights. He talks about invading Iran, threatens North Korea and sends troops to Iraq. Being a one-nation Policeman of the World has been a costly prospect not only in the esteem with which other countries regard the United States, but monetarily.
Dividing the labor between the United States and other nations equally would, of course, prove more practical and less costly for those who choose to enforce international law. The problem comes in that the United States appears loathe to give up its lion's share of the job.
The Geneva Conventions, in which war rules were set out, apply to those involved in "armed conflict," but these words are not defined. The International Committee of the Red Cross (ICRC), however, in its comments on war, has given tests to ascertain what they are. One of the tests is to look at the intensity of hostilities. Although the United States can claim that it was attacked on September 11, 2001, that its embassies were bombed in Kenya and Tanzania, the U.S.S. Cole was attacked in Yemen and residential compounds were bombed in Saudi Arabia, do these combine to equal a war? (Roth 5).
Another test is the regularity of armed clashes and the degree to which the opposing forces are organized. Political motivation is also a test, but these tests were written not for global terrorism, but for politically motivated conflicts. The nature of a participant's involvement is also one of the tests used. Combatants, however, exclude civilians who not clearly armed members of a service, but may be clandestine or are related in other subtle ways to violent acts of terrorism.
Guantanamo holds such men who are allegedly "sleeper agents," men who are not, but supposedly would be agents in a cell actively seeking to destroy the United States, if called upon by their philosophical leaders. Under the laws of war, President Bush says he may hold these "enemy combatants" and suspend their rights of due process until the war on terrorism is ended, perhaps indefinitely, without charge, and without access to attorneys or trial. These are the laws of war. Under the laws of peacetime, no one may even be arrested without knowing upon what charges they are being held. Others being held in Guantanamo are six Algerian men arrested in Bosnia in October of 2001 (before September 11) who were determined to be above suspicion by the Bosnian Supreme Court, yet they were given over into the custody of the U.S. And they remain in Guantanamo. There are also suspects from Indonesia, Pakistan and Thailand, Malawi and the United States, in Guantanamo, as well.
If the tests of the ICRC are applied world-wide, it would assist international organizations, non-governmental, as well as governmental, to determine what is a war and when the Geneva Conventions would apply. One reason this would work is that most countries already recognize the justice and fairness of these rules and would be willing to adopt them, if they have not already. Although there are rules of war, these rules should be used rarely. If one is not on the battlefield, the rules should only be used as a last resort, and not when a criminal justice system is in force and functioning.
In the United Nations Truth Commissions have been set up to investigate human rights violations in certain countries. Fifteen of them were formed in the period from 1974-1994. While their success has been debated, the simple act of publicly investigating abuses of international laws has been cathartic and the documentation of findings has kept historians from altering facts at a later date.
Truth Commissions may be formed by public mandate in a country experiencing human rights violations, to judge and seek out the truth concerning the wrong-doing of individuals or groups. But the enforcement of their findings depends upon the local government. Human Rights Watch is a group that takes the position that each government or democratic society must determine the strategy of creating and conducting a truth commission and creating human rights policies. In Guatemala, South Africa and Malawi, there is a call for a truth commission by the public. Truth commissions rarely last more than a year and then they submit their findings for action. If they last much longer, the public loses faith in ever receiving a report (Hayner 652-5).
In Bosnia Herzegovina a short time after signing the Dayton Agreement a truth commission was set up at a U.S. Institute for Peace (USIP) conference and later by local human rights actors. The Association of Citizens for Truth and Reconciliation was established in 2000 and the USIP and the Association tried to develop a Truth and Reconciliation Commission (TRC) by a proposal to the government. The TRC would keep nationalist or revisionist accounts from dominating and would recommend reparation measures, as well as legal and institutional reforms, furnish a public platform for victims and cultivate reconciliation and tolerance at the national level. This Commission has yet to be established, but the ICTY and other groups hope for its formation. Such a Truth Commission, established in BiH, would do well, as it would in other countries where perceived human rights violations have occurred and remain in the public consciousness.
While accountability seems to be the reason behind the proliferation of international criminal justice courts, reconciliation is the long-term goal, as newly emerging democratic nations seek peace among their warring internal parties. While international courts are being made available for accountability purposes, local NGOs must support them in order for them to effect a long-term reconciliation of warring parties. Neglecting to involve local organizations has been the downfall of some courts, where it appears that outside parties have just taken over the justice system and neglected to consult or involve local groups and individuals who are inherently involved in matters concerning their pasts and futures. "People continue to innovate and create new models to address the brutality of the past and help to build a more peaceful future" (Dickinson 310).
Bass, Gary J., "Milosevic in the Hague." Foreign Affairs, 00157120, May/Jun2003, Vol. 82, Issue 3.
Decision on the Establishment of the Truth and Reconciliation Commission, Official Gazette of the Federal Republic of Yugoslavia, No. 15/2001. 30 March 2001.
Dickinson, Laura a. "The promise of hybrid courts." The American Journal of International Law, Vol 97(2) April 2003.
Freeman, Mark. "Case Study Series: Bosnia and Herzegovina: Selected Developments in Transitional Justice." International Center for Transitional Justice. Oct 2004.
Freeman, Mark. "Case Study Series: Serbia and Montenegro: Selected Developments in Transitional Justice." International Center for Transitional Justice. Oct 2004.
Hayner, Priscilla B. "Fifteen Truth Commissions, 1974-1994: A Comparative Study." Human Rights Quarterly…