The Asia-Pacific Journal | Japan Focus Volume 10 | Issue 4 | Number 3 | Article ID 3681 | Jan 16, 2012

1

War, War Crimes, Power and Justice: Toward a Jurisprudenceof Conscience　　戦争、戦争犯罪、権力、正義−−良心の法へ　　　

Richard Falk

War, War Crimes, Power and Justice:Toward a Ju r i sp rudence o fConscience

Richard Falk

Ever since German and Japanese leaders wereprosecuted, convicted, and punished afterWorld War II at Nuremberg and Tokyo, therehas been a wide split at the core of the globaleffort to impose criminal accountability onthose who commit crimes against peace, crimesagainst humanity, and war crimes on behalf ofa sovereign state. The law is always expected topush toward consistency of application as acondition of its legitimacy. In the setting ofinternational criminality the greatest danger towidely shared values is posed by those with thegreatest power and wealth, and it is preciselythese leaders that are least likely to be heldresponsible or to feel threatened by theprospect of being charged with internationalcrimes. The global pattern of enforcement todate has been one in which the comparativelypetty criminals are increasingly held to accountwhile the Mafia bosses escape almostaltogether from existing mechanisms ofinternational accountability. Such doublestandards are too rarely acknowledged indiscussions of international criminal law norare their corrosive effects considered, but onceunderstood, it becomes clear that this patternseriously compromises the claim thatinternational criminal law is capable ofachieving global justice.

Nuremberg and Tokyo War CrimesTribunals

In a sense the pattern of double standards wasencoded immediately after World War II in theseminal undertakings at Nuremberg and Tokyothat assumed the partially discrediting form of‘victors’ justice’ in the weak sense of the term.The strong sense of victors’ justice involvesimposing punishment on those who areinnocent of substantive wrongdoing beyond themisfortune of being on the losing side in a war.The weak sense is that the implementation ofinternational criminal law is undertaken onlyagainst individuals on the losing side who areindeed responsible for substantive wrongdoing,while exempting seemingly guilty individualson the winning side. This results in doublestandards that weaken claims to be acting onthe basis of the rule of law. Nevertheless, thepossibility often, but not always, exists ofsentencing procedures that can be sensitive todifferent degrees of criminality. Some effortscan and should be made to close the gapbetween law as vengeance and law as justice.The prospects of securing justice vary fromcase to case and tribunal to tribunal, dependingon the context and auspices.

The Atomic Bomb Attacks

Yet even a weak sense of victors’ justice is nota minor flaw, its unacceptable inequality ofenforcement aside. It may act to exempt eventhe most severe and harmful forms of criminalbehavior from legal scrutiny, and thereby badlyconfuse our understanding of the distinctionbetween criminal and non-criminal activity.Surely the indiscriminate bombings of Germanand Japanese cities by Allied bomber fleets—noless than German and Japanese indiscriminatebombing of Britain and China—and the

APJ | JF 10 | 4 | 3

2

dropping of atomic bombs on Hiroshima andNagasaki, were ‘crimes’ that should have beeninvestigated and prosecuted if the tribunals hadbeen truly ‘legal’ in the sense of imposingindividual accountability on both victors andvanquished for their combat operations.

What is more, by refusing to prosecute victors,their substantive ‘crimes’ attained a kind ofperverse de facto legality. There is little doubtthat had Germany or Japan developed theatomic bomb first, and then used it, theindividuals responsible would have beencharged with and convicted of crimes againsthumanity and war crimes by the victoriousallied powers, and their behavior stigmatized inthe annals of customary international law.

The one judicial body to pass judgment on theatomic bomb attacks on Japanese cities was alower Tokyo court in the Shimoda decisionhanded down on December 7, 1963, that is,with a subtle touch of Japanese humility, theexact day of the 22nd anniversary of the PearlHarbor attacks.

US battleship sinks at Pearl Harbor

The decision, relying on expert testimony byrespected Japanese specialists in internationallaw, did conclude that the attacks on largecities violated existing international lawbecause of their indiscriminate and toxiccharacteristics. The case had been initiated by

survivors of Hiroshima and Nagasaki whosought nominal damages and lacked any legalstanding to put forward criminal allegations.

As might have been expected Japan as adefeated state and one that remainedsubordinate to American military power anddiplomatic influence, was not inclined to pursuethe matter any further, and seemed precludedfrom doing so by the peace treaty with theUnited States. Not surprisingly the Shimodajudgment virtually disappeared down thememory hole of atomic diplomacy. In 1996 theInternational Court of Justice in an AdvisoryOpinion responding to a question put to it bythe UN General Assembly narrowly defined theconditions under which it might possibly belawful to resort to nuclear weapons insituations of extreme self-defense that ifapplied to the 1945 atomic attacks woulddefinitely result in their criminalization. As faras is known no effort has been made by anynuclear weapons state to alter its doctrinegoverning threat and use, including the threatof nuclear annihilation, in light of this mostauthoritative assessment of the internationallaw issues at stake by the World Court.

Firebombing of Tokyo MARCH 9-10, 1945

Had the defeated states used an atomic bomb

APJ | JF 10 | 4 | 3

3

and the perpetrators been charged andconvicted, this might have made it somewhatmore difficult for the victors to rely uponnuclear weaponry in the future, and might haveencouraged them to work diligently andreasonably to negotiate a treaty regime ofunconditional prohibition. Instead, thevictorious United States Government has neverbeen willing to express formally even remorsefor these wartime atrocities that completelylacked the partially redeeming feature ofmilitary necessity. It has retained, developed,possessed, deployed, and threatened othernations with the use of nuclear weapons onnumerous occasions, including the possibility ofusing weaponry with payloads many times themagnitude of those first bombs dropped onJapan. As well, having opened this ultimatePandora’s Box, others have acquired theweaponry and relied upon its ultra-hazardousenergy technology to produce nuclear power.

It is not just the inherent unfairness of victors’justice, but its tendency to normalizeunacceptable wartime behavior if done by thewinning side in a major war, which nullifies thevery possibil ity of a jurisprudence ofconscience. The closest that the United StatesGovernment has come to acknowledge officiallyits culpability in relation to Hiroshima andNagasaki was contained in a single line inBarack Obama’s speech of April 5, 2009 inPrague that envisioned a world without nuclearweapons: “…as the only nuclear power to haveused a nuclear weapon, the United States has amoral responsibility to act.” Unfortunately,such a sentiment was neither a belated apologynor was it repeated in Obama’s Nobel PeacePrize acceptance speech a few months later,nor have any concrete steps been taken toinitiate a nuclear disarmament process in thecourse of the Obama administration.

Fairness of Procedure

Tokyo Trial

There are important matters of degree thateither mitigate or aggravate the contention ofvictors’ justice. It was the case, especially inTokyo, that the tribunal allowed defendants tobe represented by competent lawyers and thatthe judges assessed fairly the evidence againstdefendants that alleged criminality. The Tokyoprocess even produced a celebrated dissentingopinion by the Indian jurist, Radhabinod Pal,and three Nazi defendants were acquitted bythe Nuremberg tribunal. In short, there was ameasure of procedural fairness in these trials. It seems clear that Justice Pal’s long dissentingopinion came as an unpleasant surprise tothose who had arranged the tribunal. After all,Pal questioned in form and substance theoverall legitimacy of what he believed to be aone-sided prosecutorial approach to theadministration of criminal justice. Heparticularly lamented the failure of the court totake into account the Japanese rationale forrecourse to war, especially the damagingimpacts of coercive encirclement of Japan byAmerican grand strategy, which was perceivedby Japanese leaders, reasonably in Pal’sunderstanding, as threatening the viability ofthe country. Pal also did little to hide hiscontempt for colonial powers sitting in

APJ | JF 10 | 4 | 3

4

judgment of the behavior of an Asian country. Isuppose it is part of the educative function ofvictors’ justice in a liberal society to note that itbecame almost impossible for many years toobtain a copy of Judge Pal’s exhaustivelyreasoned rejection of the major premise of theTokyo war crimes tribunal.1

Japanese Commemoration of Justice Pal

Selectively Prosecuting the Guilty

Without doubt those who were accused of theseinternational crimes at Nuremberg and Tokyodid engage in activity that could in manyinstances be properly be viewed as morallydepraved, as well as criminal and deserving ofpunishment. And it was deemed relevant toconstructing a peaceful world order at the timeto send a clear signal to future political leadersand military commanders that they would behenceforth held criminally responsible for theirbehavior, and could no longer hide behindclaims of sovereign immunity and superiororders. But such a signal as deliveredconveyed, at best, an ambiguous message tothe extent that it seemed that future victors inmajor wars were likely to continue to avoidaccountability even if they appeared to bemanifestly guilty of committing internationalcrimes.

This split notion of accountability as between

winners and losers remains descriptive of howinternational criminal law is currentlyimplemented. Indeed, the gap has widenedover time, or at least become more evident.This awareness is partly a result of increasingefforts by the inter-governmental system ofstates to hold losers and vulnerable politicalactors accountable while holding firm theexemption of the powerful and their friends.The NGO community has by and large beenopportunistic, supporting efforts to holdofficials accountable for their criminalitywithout worrying too much about doublestandards and selective implementation,seeming to reason that a glass half full was tobe preferred to an empty glass. This has hadthe unfortunate effect of seeming to legitimatethe hierarchical character of world order. Byignoring the crimes of the powerful politicalactors on the world stage while applauding thecriminal prosecution of weaker political actors,an attitude of normalcy or indifferencebecomes associated with double standards ininternational criminal law.

The recent trend has exhibited a gradualincrease in the availability of internationalmechanisms to hold leaders accountable,including the establishment of a variety ofspecial or ad hoc international tribunals,including those constituted by civil societyinitiatives, to address serious criminalallegations (former Yugoslavia and Rwanda,Japanese comfort women, indigenous peoples)relating to genocide and crimes againsthumanity.

Crimes Against Peace

A more permanent venue for some initiativesalong these lines came into being in 2002 withthe unexpected establ ishment of theInternational Criminal Court. For reasonsrelevant to the argument made here, thenegotiations of the ICC had to stop short ofincorporating crimes against peace into itsclaim of jurisdictional authority, reflecting the

APJ | JF 10 | 4 | 3

5

interest of major states in not acknowledgingrestrictions on their use of what geopoliticallyoriented diplomats call ‘the military option,’which reflects a thinly disguised insistence ondiscretion to use force as an instrument offoreign policy despite the unconditionalprohibitions of threats or uses of force inArticle 2(4) of the UN Charter. The recentIsrael, American, and British military threatsdirected at Iran is a flagrant instance of relyingon a non-defensive threat to use force against asovereign state. By Nuremberg or Charterstandards such threat diplomacy would appearto be a naked example of a crime againstpeace.

Again the issue of victors’ justice lurks in thebackground, but this time in a reverserelationship to that pertaining to the atomicbomb. Here the World War II tribunals weremost intent at the time on criminalizingrecourse to aggressive war, and were here onstrong substantive grounds as both theEuropean and Asian theaters of warfare weredefinitely initiated by the states that went on tolose the war and whose surviving leaders werebeing prosecuted. At Nuremberg, the judgmentwent out of its way to declare that crimesagainst peace are the worst possible offenseagainst the law of nations, encompassing thelesser realities of crimes against humanity andwar crimes, and except for Justice Pal, thejudges in both tribunals had little troublereaching such a legal conclusion.

It was this conclusion that underlay the originalconception of the UN as being a war preventioninstitution (“to save succeeding generationsfrom the scourge of war” in the language of thepreamble to the charter) whose charterrestricted valid claims to use force to situationsof self-defense against a prior armed attack orto occasions on which the Security Councilmandated a use of force for the sake ofinternational peace and security.

Despite such a legal foregrounding of this war

prevention priority, the Security Council vetogiven to the winners in World War II conferreda permanent exemption from accountability ofa sort that continued and widened the failure tohold the winners criminally accountable atNuremberg or Tokyo. The practice of the UNhas confirmed the refusal of these fivepermanent members of the Security Council,along with a few other states, to live accordingto the precepts of the charter. Indeed, theywould bring geopolitical pressures to bear sothat the Security Council, as it did a fewmonths ago, would mandate an interventionaryuse of force in Libya that was neither defensivenor necessary for the sake of internationalpeace and security.2 Because of its challenge tomilitarism and geopolitical reliance on force,crimes against peace has been basicallymarginalized as an international crime,supposedly because there was no agreementamong governments as to a definition ofaggression, but more genuinely, becausegeopolitical actors refused to accede to anyformal challenge to their discretion to threatenand use force to resolve international conflictsor impose their political will. Here the leverageof geopolitical pressure keeps the legalprecedent set at Nuremberg and Tokyo afterWorld War II from becoming a behavioralnorm. That is, it was appropriate to criminalizethe aggression of Germany and Japan, but it isnot acceptable to hamper the activities ofgeopolitical ‘peacekeepers’ by the applicationof such a restrictive norm to their behavior. Atpresent, for instance, the standard Americanapproach to its efforts to prevent Iran fromacquiring a nuclear bomb is to announce withdue gravity that the military option remains onthe table, that is, a threat to initiate a non-defensive war. This threat is reinforced by aseries of other coercive measures, includingUN sanctions and diplomatic pressures on thirdparties to forego economic relations with Iranor to increase oil production so that Iran’s oilrevenues will diminish. Such a package ofmeasures is designed to achieve the diplomaticgoal of Iran’s renunciation of its nuclear

APJ | JF 10 | 4 | 3

6

enrichment program.

Tribunals and Historical Validation

There were other messages to the world arisingfrom these seminal war crimes trials at the endof World War II. For instance, the presentationof the case against the defendants was a way ofprosecuting the losing states while vindicatingthe winners. It was a matter of certifying thejustice by way of an extended judicial narrativethat strengthened the moral credibility of thebattlefield outcome. The winning side byconducting trials of this kind takes advantageof the opportunity to reinforce claims as to thejustice of battlefield verdicts by pronouncing onthe criminality of losers while overlooking thecriminality of its own actions. This attempt tocontrol the judgments of history is moreinfluential with short-run public opinion than itis with historians who over time look moreobjectively at the evidence except to the extentblinkered by their national or civilizationalorientations. It also tends to make occupationseem reasonable, as well as imposingrestrictions on the future sovereignty of thedefeated country.

But there were also short-term consequences ofsuch a validation of the outcome of the war thatextended beyond securing the peace. Thevalidation provided cover for the establishmentof more or less permanent American militarybases in the Asia Pacific region, including inOkinawa, mainland Japan, and South Korea, aswell as establishing strategic claims over theentire region and exerting direct control overMicronesia and other Pacific Islands. In effect,geopolitical expansionism and a triumphalistAmerican grand strategy that extended itsreach beyond maintaining peace in the regionafter 1945. Undoubtedly, the unquestionedaccompaniment of holding the losersaccountable and writing without criticalcommentary the official history of the warenabled this geopolitical project to go forwardwithout debate, much less criticism. In effect,

the dynamics of establishing World War II as a‘just war’ prepared the ground for constructingwhat in some respect is an ‘unjust peace’ thathas endured despite its serious compromisingof the sovereignty of several Pacific states.

The Nuremberg Promise

There was also another deferred effect ofvictors’ justice that was sensitive to itschallenge to the legitimacy of the original legalprocess. It made an attempt to overcome theflaw of double standards by offering aninformal commitment to being evenhanded inthe future. This gesture to remove criminalaccountability from the domain of geopoliticscan be labeled as ‘the Nuremberg promise,’and involves a commitment by the victors in thefuture to abide by the norms and proceduresused to punish the German and Japanesesurviving military and political leaders. Ineffect, to correct this flaw associated withvictors’ justice by converting criminalaccountability from rule of power to rule of lawapplicable to all rather than a consequence ofthe outcome of wars or a reflection ofgeopolitical hierarchy.

The Chief Prosecutor at Nuremberg, JusticeRobert Jackson (who had been excusedtemporarily from serving as a member of theU.S. Supreme Court), gave this promise anenduring relevance in his official statement tothe court: “If certain acts and violations oftreaties are crimes, they are crimes whetherthe United State does them or whetherGermany does them. We are not prepared tolay down a rule of criminal conduct againstothers which we would not be willing to haveinvoked against us.” Peace activists frequentlyquote Jackson’s words, yet political leaders whotake no notice of either the original flaw atNuremberg or the obligation to remove itconsistently ignore them. Jackson’s promise atNuremberg was made in good faith, but itsirrelevance to what evolved over time suggeststhat the rhetoric at the time was not sufficient

APJ | JF 10 | 4 | 3

7

to generate a sense of obligation on the part ofAmerican leaders who subsequently acted onbehalf of the United States.

A parallel issue arises in relation to thewillingness of a defeated country to accept thecriminalization of its leadership. The Germanphilosopher, Karl Jaspers in his The Future ofGerman Guilt argued that the acceptability ofthese convictions and punishments of Germanleaders would have to wait until it becomesclear in the future whether the Nurembergpromise was going to be kept by the victors. Ifthe promise was broken then in retrospect theNuremberg process should be treated as alegal form of vengeance rather than anexpression of criminal justice. Taking Jaspersseriously in this respect would raise questionsabout the liberal embrace of internationalcriminal law despite its incorporation of doublestandards.

Since 1945 crimes by the victors in conflict,along with other geopolitical actors of regionalambition, have continued to be overlooked byinternational criminal law, while prosecutionsreflecting geopolitical leverage have beenhappening at an accelerating pace without anyconcerted intergovernmental or UN effort tocorrect the imbalance. Since the end of theCold War implementation of criminalresponsibility has been increasingly imposed onlosers in world politics, including heads of statesuch as Slobodan Milosevic, Saddam Hussein,and Muammar Qaddafi each of whom weredeposed by Western military force, and eithersummarily executed or prosecuted.3

Institutionalizing International CriminalLaw

This dual pattern of criminal accountability thatcannot be fully reconciled with law orlegitimacy has given rise to several reformistefforts. Civil society and some governmentshave favored a less imperfect legalization ofcriminal accountability, and raised liberalhopes by extraordinary efforts of a global

coalition of NGOs and the commitment of agroup of middle powers in establishing the ICCdespite the opposition of a geopoliticalconsensus. Fearful of losing or compromisingtheir impunity, such geopolitical heavyweightsas the United States, China, India, and Russiahave refused to ratify the ICC, and the UnitedStates has gone further, pressuring over 100countries to sign statements agreeing not tohand over to the ICC Americans accused at TheHague of international crimes.

The result is that this and other formal andinformal initiatives have not yet seriouslyimpinged on the hierarchal realities of worldpolitics, which continue to exhibit an embraceof the Melian ethos when it comes to criminalaccountability: “the strong do what they will,the weak do what they must.” Such an ethosmarked, for Thucydides, unmistakable evidenceof Athenian decline, but for contemporaryrealists a different reading has been prevalent.Underpinning political realism has been thepremise that hard power calls the shots inhistory, and the losers have no choice but tocope as best they can. Double standardspersist: those who are enemies of the West orevildoers in Africa are targets of globalprosecutorial zeal, while those in the West whowage aggressive war or mandate torture asnational policies continue to enjoy impunity asfar as formal legal proceedings are concerned.

As suggested, the veto in the Security Councilboth complements the ‘naturalness’ of victors’j u s t i c e a n d i s a p r i m e i n s t a n c e o fconstitutionalizing double standards. The vetopower, while sounding the death knell for theUN in its assigned role of ensuring warprevention based on law rather thangeopolitics, is not without providing certainbenefits to world order. This exit option forseveral major actors is probably responsible forallowing the Organization to achieve andmaintain universality of membership evenduring times of intense geopolitical conflict.Without the veto, the West would have likely

APJ | JF 10 | 4 | 3

8

pushed the Soviet Union and China out thedoor during the Cold War years, and the UNwould have lost its inclusive and universalistcharacter in a manner s imi lar to thediscrediting of the League of Nations, anexperience after the end of World War I thattransformed Woodrow Wilson’s dream into anightmare. Arguably the veto and victors’justice are examples of Faustian bargains thatenable a semblance of law and justice to bepresent in international life, and to convey theimpression that there is a morally evolutionaryprocess at work that introduces a graduallyincreasing measure of civility into the conductof world politics. The question is whether thisappearance of civility is to be treated as a formof moral progress, however slow or halting, orrather as the prost i tut ion of law andinstitutions to geopolitical abuses andambitions. There is no assurance that theevolution of international criminal law has anyprospect of overcoming the current pattern ofan open ended geopolitical right of exception.

Yet even this realist world of unequal states hasbeen embodied imperfectly within the UnitedNations. So conceived, even if the UN is judgedby way of a geopolitical optic, the anachronisticcharacter of the 1945 Security Council persistsas a remnant of the colonial era. This isdelegitimizing. 2012 is not 1945, but thedifficulty of achieving constitutional reformwithin the UN means that India, Brazil, Turkey,Indonesia, Germany, Japan, and South Africaseem destined to remain permanent ladies inwaiting as the UN goes about its seriousgeopolitical business. What this means for UNauthority, including its sponsorship of thepolitics of individual criminal accountability, isthat all that is ‘legal’ is more often than not‘illegitimate,’ and lacking in moral force.

My argument seeks to make two main points:first, double standards pervade the treatmentof war crimes eroding the authority andlegitimacy of international criminal law; andsecondly, those geopolitical hierarchies that

are embedded in the UN framework lose theirauthority and legitimacy by not adapting tochanging times and conditions, especially thecollapse of the colonial order and the rise ofnon-Western centers of soft and hard power. Inthis latter instance, it is the inability to reflectthe geopolitical ratio of power that partiallyhampers the legitimacy of the UN, not itsrealist tendency to express its legitimacy byexhibiting in its procedures and structures therelative strength of political actors. Thisdurability of the original UN distribution ofauthority in the Security Council both reflectsthe diff iculty of overcoming formallyentrenched positions of status and the politicalsense that the existing five permanentmembers maintain a certain internal balancegeographically (West versus Asia) that remainsreflective of world power relations despite thehegemonic role played by the United Stateswithin and outside of the UN. Of course, even ifthe UN enhanced its geopolitical legitimacy bytaking account of global shifts in capabilitiesand influence, this would not necessarily pose achallenge to hierarchy and double standards.

Universal Jurisdiction

There are different kinds of initiatives taken toclose this gap between the legal and thelegitimate in relation to the criminality ofpolitical leaders and military commanders. Onemove is at the level of the sovereign state,which is to encourage domestic criminal law toextend its reach to cover international crimes.Such authority is known as UniversalJurisdiction (UJ), a hallowed effort by states toovercome the enforcement weaknesses ofinternational law, initially developed to dealwith the crime of piracy, which beinginterpreted as a crime against the whole worldcould be prosecuted anywhere regardless ofwhere the pirate operated. Many liberaldemocracies in particular have regardedthemselves to varying degrees as agents of theinternational legal order as well as providingfor the rule of law for relations within their

APJ | JF 10 | 4 | 3

9

national boundaries. This has led governmentsto endow their judicial systems with someauthority to apprehend and prosecute thoseviewed as criminally responsible for crimes ofstate even if the criminal acts were performedoutside of geographic boundaries. Thelegislating of UJ represented a strong tendencyduring the latter half of the twentieth centuryin the liberal democracies, especially inWestern Europe to be proactive with respect tothe implementation of international criminallaw by escaping to some extent from theconstraints of geography.

This development reached public awareness inrelation to the dramatic 1998 detention inBritain of Augusto Pinochet, former ruler ofChile, in response to an extradition requestfrom Spain where criminal charges had beenjudicially approved. The ambit of UJ is widerthan its formal implementation as its merethreat is intimidating, leading those prominentindividuals who might be detained and chargedto avoid visits to countries where such claimsmight be plausibly made. In late 2011 GeorgeW. Bush cancelled a speaking engagement inSwitzerland because of indications that hemight be arrested and charged withinternational crimes if he ventured across theSwiss borders. Similar reports have suggestedthat high Israeli officials have changed travelplans in response to warnings that they couldface arrest, detention or extradition for allegedcrimes, especially in recent years thoseassociated with either the Lebanon War of2006 or the 2008-09 Israeli military attack onGaza bearing the code name of Operation CastLead. In other words, the possibility of anassertion of UJ may have a behavioral andpsychological impact even if the defendant isnot brought physically before the court to standtrial.

Pinochet brought to trial

As might be expected, UJ gave rise to avigorous geopolitical campaign of pushback,especially by the governments of the UnitedStates and Israel. These governments exhibitedthe most anxiety that their leaders might besubject to criminal apprehension by foreignnational courts even in countries that werepolitical friends. As a result of intensepressures, several of the European UJ stateshave rolled back their legislation in response toWashington’s demands, thereby calmingsomewhat the worries of travelers with recordsof public service on behalf of their countriesthat was potentially vulnerable to criminalprosecutions in foreign courts!

Civil Society Tribunals

There is another approach to spreading the netof criminal accountability that has been taken,remains controversial, and yet seemsresponsive to the current global atmosphere ofpopulist discontent. It involves claims by civilsociety, by the peoples of the world, toestablish institutions and procedures designedto close the gap between law and legitimacy inrelation to the application of internationalcriminal law. Such initiatives can be tracedback to the 1966-67 establishment of theBertrand Russell International CriminalTribunal that examined charges of aggression

APJ | JF 10 | 4 | 3

10

and war crimes associated with the Americanrole in the Vietnam War. The charges wereweighed by a distinguished jury of privatecitizens composed of moral and culturalauthority figures headed by Jean-Paul Sartre.The Russell Tribunal was derided by critics atthe time as a ‘kangaroo court’ or a ‘circus’because i t s l ega l conc lus ions werepredetermined, and amounted to foregoneconclusions. The critics condemned thisinitiative on several overlapping grounds: thatits outcome could be accurately anticipated inadvance, that its authority was self-proclaimedand without governmental approval, that it hadno control over those accused, that itsproceedings were one-sided, and that itscapabilities fell far short of enforcement.

What was overlooked in such criticism was thedegree to which this dismissal of the Russellexperiment reflected the monopolistic and self-serving claims of the state and state system tocontrol the administration of law, ignoring thecontrary claims of society to have lawadministered fairly in accord with justice, or atleast to expose its distortions and doublestandards. Also ignored by the critics was thefact that only such spontaneous initiatives ofconcerned persons and groups could overcomethe blackout of truth on the matters ofcriminality achieved by the geopolitics ofimpunity. The Russell Tribunal may not havebeen ‘legal’ understood in the sense of derivingi ts author i ty f rom the s tate or f rominternational organizations, but it was‘legitimate’ in responding to double standards,by calling attention to massive crimes anddangerous criminals who otherwise might enjoya free pass, and by producing a generallyreliable and comprehensive narrative accountof criminal patterns of wrongdoing and flagrantviolations of international law that destroy ordisrupt the lives of entire societies and millionsof people. Such societal initiatives requiregreat efforts that lack the benefit of publicfunding, and only occur where the criminalitybeing legally condemned seems severe and

extreme, and where geopolitical forceseffectively preclude systematic inquiry byestablished institutions of criminal law.4

It is against this background that weunderstand a steady stream of initiatives thatbuild upon the Russell experience in the 1960s.Starting in 1979, the Basso Foundation inRome sponsored a series of such proceedingsunder the rubric of the Permanent PeoplesTribunal that explored a wide variety ofunattended criminal wrongs, includingdispossession of indigenous peoples, theMarcos dictatorship in the Philippines,massacres o f Armen ians , and se l f -determination claims of oppressed peoples inCentral America and elsewhere. In 2005 theIstanbul World Tribunal on Iraq examinedcontentions of aggression and crimes againstpeace, crimes against humanity, and warcrimes associated with the U.S./UK invasionand occupation of Iraq, commencing in 2003,causing as many as one million Iraqis to losetheir l ives, and several mil l ion to bepermanently displaced from home andcountry.5

In November 2011 the Russell Tribunal onPalestine, a direct institutional descendant ofthe original Russell undertaking, held a sessionin South Africa to investigate charges ofapartheid, as a crime against humanity, beingmade against Israel. A few days later, the KualaLumpur War Crimes Tribunal launched aninquiry into charges of criminality madeagainst George W. Bush and Tony Blair fortheir roles in planning, initiating, andprosecuting the Iraq War, to be followed a yearlater by a subsequent inquiry into torturecharges made against Dick Cheney, DonaldRumsfeld, and Alberto Gonzales.6

Without doubt such societal efforts to bring atlarge war criminals to symbolic justice shouldbecome a feature of the growing demandaround the world for real global democracysustained by a rule of law that does not exempt

APJ | JF 10 | 4 | 3

11

from criminal accountability the rich andpowerful whether they are acting internally orinternationally.

Conclusion

The problems of victors’ justice and doublestandards pervade and subvert the properapplication of international law. As long aspower, influence, and diplomatic skills areunevenly divided, there will be some tendencyfor this to happen. Civil society is seeking toincrease the ethical and political relevance ofinternational law in two ways: by illuminatingthe geopolitical manipulation of law and byforming its own parallel institutions that focuson the criminality of the strong and thevictimization of the weak. There remain manyobstacles on this road to global justice, but atleast some clearing of the geopolitical debris isbeginning to take place. By geopolitical debrisis meant this opportunistic reliance on lawwhen it serves the interests of the powerful andvictorious, and its determined avoidance andsuppression whenever it restrains or censurestheir behavior. Until international law has thecapacity to treat equals equally the correctivechecks of progressive civil society are a vitalingredient of a jurisprudence of consciencedespite their lack of governmental legitimacy.7

Richard Falk is Albert G. Milbank ProfessorEmeritus of International Law, PrincetonUniversity, and United Nations Human RightsCouncil Special Rapporteur for the OccupiedPalestinian Territories. His recent booksinclude Richard Falk and Mark Juergensmeyer,eds., Legality and Legitimacy in Global Affairs(http://www.amazon.com/dp/0199781583/?tag=theasipacjo0b-20) and Richard Falk and DavidKrieger, The Path to Zero: Dialogues onN u c l e a r D a n g e r(http://www.amazon.com/dp/1612052134/?tag=theasipacjo0b-20).

Recommended citation: Richard Falk, 'War,

War Crimes, Power and Justice: Toward aJurisprudence of Conscience,'

The Asia-Pacific Journal Vol 10, Issue 4 No 3,January 23, 2012.

Articles on related subjects

Y u k i T a n a k a a n d R i c h a r d F a l k(https://apjjf.org/-Richard-Falk/3245), TheAtomic Bombing, the Tokyo War CrimesTribunal and the Shimoda Case: Lessons forAnti-Nuclear Legal Movements

D a n i e l E l l s b e r g(https://apjjf.org/-Daniel-Ellsberg/3201),Building a Better Bomb: Reflections on theAtomic Bomb, the Hydrogen Bomb, and theNeutron Bomb

M a r i l y n B . Y o u n g(https:/ /apj j f .org/-Marilyn-Young/3125),Bombing Civilians: An American Tradition

P e t e r J . K u z n i c k(https://apjjf.org/-Peter_J_-Kuznick/2479), TheDecision to Risk the Future: Harry Truman, theAtomic Bomb and the Apocalyptic Narrative

M a r k S e l d e n(https://apjjf.org/-Mark-Selden/2414), AForgotten Holocaust: US Bombing Strategy,the Destruction of Japanese Cities and theAmerican Way of War from World War II toIraq

Notes

I would like to thank Mark Selden for hiseditorial and substantive contributions thistext, and to Ayca Cubukcu for her mostthoughtful comments on an initial draft.

1 International Military Tribunal for the FarEast: Dissentient judgment of Justice R. B. Pal(Calcutta: Sanyal, 1953).

APJ | JF 10 | 4 | 3

12

2 The authorizing resolution of the SecurityCounci l seemed l imited to providinghumanitarian protection to the civilianpopulation of the Libyan city of Benghazi,

but was operationally expanded by NATO toinclude a full-scale military air effort

to tip the balance in an internal civil war infavor of the anti-Qaddafi forces. UN SecurityCouncil Resolution 1973, 17 March 2011 wasofficially delimited as establishing a ‘No-Fly-Zone’ over Libya, although there wasaccompanying language that should never havebeen accepted by the five abstaining states tothe effect that ‘all necessary measures’ wereapproved.

3 In Qaddafi’s case he was brutally killed by themilitary forces that captured him in his hometown of Sirte on 20 October 2011.

4 Investigative journalism does act as a partialcomplement to these efforts of citizens’tribunals. In Vietnam, for instance, SeymourHersh made a notable contribution by exposingthe execution by American military personnelof Vietnamese villagers. See Seymour M.Hersh, Mylai 4: a report on the massacre andits aftermath (New York: Random House, 1970)

5 See Müge Gürsöy Sökmen, ed., WorldTribunal on Iraq: making the case against thewar (Northhampton, MA: Olive Branch Press,2008)

6 I have written blog posts on both of thesei n i t i a t i v e s . F a l k(http://richardfalk.wordpress.com/2011/12/06/Israel-and-Apartheid?-Reflections-on-Palestine-Session-in-South-Africa), “Israel andApartheid? Reflections on the Russell Tribunalon Palestine Session in South Africa,” Falk(http://richardfalk.wordpress.com/2011/11/29/Kuala-Lumpur-War-Crimes-Tribunal:-Bush-and-Blair-Guilty/), “Kuala Lumpur War CrimesTribuanal: Bush and Blair Guilty.”

7 There is a need to clarify what is meant by ‘ajurisprudence of conscience’ beyond thenarrow claim of this article that law shouldtreat equally all offenders of norms ofinternational criminal law. It is true that manywho subjectively act on the basis of theirconscience engage in behavior that from othersocietal perspectives constitute crimes. Forinstance, the assassination of doctors whoperform abortions by right to life advocatesoffers one clear illustration.