Why the Recognition of Crimes for Which There Is No Statute of Limitations Is Crucial for the Security of Democracies
Extraordinary Chambers in the Courts of Cambodia (ECCC) finds Nuon Chea and Khieu Samphan guilty and gives them both life sentences for crimes against humanity. 7 August 2014. Source: Extraordinary Chambers in the Courts of Cambodia
International law has established, particularly since the end of the Second World War and the Holocaust, a series of binding definitions of crimes with no statutory limitation. It has identified, not without some terminological uncertainties for the last two, three categories among these crimes: war crimes, crimes against humanity and crimes of genocide. Moreover, there is no formal hierarchy between them. Beyond the fundamental debates from the outset between the supporters of the recognition of genocide, principally Raphael Lemkin (1900-1959), and those who considered that the primary concept was that of crimes against humanity, first and foremost Hersch Lauterpacht (1897-1960), it can logically be admitted that the crime of genocide includes that against humanity. The crime against a group is also, or even primarily, a crime committed against individual persons. Philippe Sands’ superb book East West Street returns to these original debates during the Nuremberg trials.
In fact, there is often a continuity between war crimes (notably deliberate massacre of civilians during armed operations or bombing of hospitals) and crimes against humanity, such as summary executions and torture in prisons. The distinction between the two is actually sometimes difficult to make. Article 7 of the Rome Statute of the International Criminal Court specifies that crimes against humanity can be committed in times of war as well as in times of peace, which makes it possible to consider war crimes as crimes against humanity, and the Court is competent to judge the perpetrators of both.
These crimes also have their own tribunals: first the Nuremberg tribunal, then the international criminal tribunals for the former Yugoslavia and Rwanda, and finally the International Criminal Court. Mixed tribunals have also been created, notably for Cambodia, Sierra Leone, Lebanon and East Timor. However, the International Criminal Court suffers from three shortcomings. First, the Rome Statute has not been signed and ratified by many states that do not recognize its jurisdiction. Secondly, its referral to the United Nations Security Council, which remains a possibility when it targets states that are not members of the Rome Statute, is sometimes impossible because of the veto power of the five permanent members. Finally, in view of the accumulation of cases potentially to be tried, its means are still too limited.
Our purpose here, however, is not to explore the significant legal, conceptual and criminalization difficulties, nor the practical biases, but to explore the consequences of silence: why do many Western leaders have such difficulty naming some of these crimes, sometimes to the point of normalizing the regimes that commit them and, consequently, of trivializing these very crimes with public in the eyes of opinion? What consequences does this have on the life of our democracies and on our common security?
Crimes at the foundation of our democratic conscience
The conscience of the citizens in a democracy is based on the conscience of the crimes as absolute disruption of the free political order. It is measured in relation to extreme situations and not in relation to normal situations. Beyond questions of political procedure such as elections and the existence of free parties, the basic democratic rules—human rights, the independence of justice, the inviolable dignity of each human person in their singularity—exist implicitly in relation to situations where they would no longer be guaranteed. They are also based on a certain awareness of humanity as a whole in which there can be no exception to the common law.
This awareness is undoubtedly difficult to foster in former democracies where the witnesses of wars have essentially disappeared and where history itself is no longer sufficiently learned. The peoples who have known the crimes of dictatorial regimes more closely and still retain the memory of the fight for freedom probably have this awareness more vividly, but it tends to fade away in the younger generations, who will gradually lose this founding historical awareness.
This loss of a sense of human community is also reinforced by the isolation of each country in the world, especially the rich democracies, which only considers with distraction what is happening outside our borders. Globalization distends as well as unites—it unites, sometimes in a futile way, separate peoples and, in a less inept way, researchers from all over the world, but it separates nations subjected to perpetual crime from those who think they can escape it permanently.
This phenomenon is accentuated by the unwillingness of democratic heads of state and government to spread in public opinion awareness of these crimes, a tendency accentuated by the weakness of resistance to certain criminal states. We have also seen this with governments that are more inclined to oppose the threats from Russia and China in particular, but which are reluctant to alert the public to the crimes against humanity committed in Syria or Xinjiang. Some also implicitly grant, in a denial of humanity, a difference in value between the lives of human beings according to their origin or their beliefs. Indirectly, this indifference to crime reinforces the differentiation between them and us, the implications of which can be seen in the internal political order.
The medium-term consequences of silence in the face of crime on the public mind are not yet fully understood. The criminal regimes of the world play on this in their propaganda, which aims at confusion and relativism. Not only do they get a license to kill, but they also get their crimes erased. At the same time, a phenomenon is created not only of unreality, but of self-destruction of the principles that the democratic West was supposed to carry: While the Armenian Genocide was learned, beyond narrow circles, long afterwards, while the broad awareness of what happened in Auschwitz, Treblinka, Sobibor and Maidanek appeared only after the liberation of the death camps, while even the images of Srebrenica and Rwanda reached us only over the course of time, in Sudan and Yemen the crimes were documented almost immediately, and especially in Syria, Assad, Putin and the Mullah regime murdered live. And nothing happened. Much has been said about the descent into inanity of the “never again”, but it did not die from the absence of images, but from its overflow. The accumulation of images combined with the vilest inaction has done more to destroy our post-Holocaust and post-Bosnia commitments than its near-vacuum in Chinese Laogai and Cambodia.
When crimes fall into a form of unreality, it opens the way to their negation.
Crimes and punishments
It has often been rightly asserted that, beyond the indispensable duty of memory which must be expressed by the homage paid to each of the victims of the crimes taken individually, and the writing of the history of their lives, justice ultimately constitutes the essential way to their recognition. It cannot bring consolation and comfort to the survivors, but it is essential to their future lives. It is also the foundation of a possible process of reconciliation—even if it cannot be achieved by whitewashing the perpetrators—a process that is inseparable from the work of truth-telling that justice offers.
Such an action of justice, which involves the punishment of the guilty in proportion to their responsibility for the crimes, is easier when the camp of the criminals has been defeated by arms, either by the intervention of external armies or by an internal revolution, even if the exile of the guilty to complacent countries taints the fullness of justice. This is how several of those responsible for crimes against humanity committed by the Khmer Rouge, by certain Serbian and sometimes Croatian leaders, or former leaders or officials of Liberia, Chad and Rwanda were tried and convicted. In other countries, criminals against humanity or war criminals, overthrown by revolutions, were summarily executed without such a process of justice surrounded by all guarantees—think of Saddam Hussein or Muammar Gaddafi. Such acts of revenge are not only the opposite of justice, but they do not allow the people concerned to have a fully objective and documented knowledge of the crimes committed. They leave the door open to all kinds of disputes and sometimes to the rehabilitation of criminals.
In the face of such crimes, the major issue is that of injustice, philosophically and politically the ultimate scandal, which is that of the non-punishment of their authors. This injustice is exacerbated by the kind of immunity that some criminals enjoy, either because they belong to a large state that is not likely to be defeated by a military operation—as is the case in particular with Russia and the People’s Republic of China—or because they are protected to the end by one of these states—the Assad regime in Syria, Maduro’s regime in Venezuela, Lukashenka’s regime in Belarus or the Burmese junta. These regimes are certainly subject to multiple sanctions and even the most timid leaders do not hesitate to name the crimes committed, but the hope of seeing their leaders referred to the ICC is low.
This defiance of the most fundamental order of law is not accidental, but voluntary. In any case, it is part of a conscious and deliberate plan by Moscow and Beijing both to render the international norm obsolete and to point the finger at the weakness of democracies unable to enforce the principles they have established. They are increasingly reluctant, for reasons that we will not evaluate here, to engage in external operations, all the more so to enforce fundamental rights, and even the responsibility to protect (R2P). I have moreover developed the thesis elsewhere that what I coined, at the time of the siege of Aleppo, as a “war of extermination” of the Assad and Putin regimes in Syria, marked, even today, by war crimes in broad daylight (deliberate massacres of civilians, bombing of hospitals, schools and markets, targeted attacks on rescuers) was also a way of demonstrating that major criminal states could free themselves from all norms. The same applies to the PRC and the crimes against humanity and genocide committed in Xinjiang against the Uyghur population. Other major states have also committed war crimes—notably the United States during the Iraq war (authorization of torture, cruel and degrading treatment in the Abu Graib prison)—but they were incidental to their war, which cannot be legitimized in any way. War crimes are central to Putin’s strategy in Syria and planned in Xi Jinping’s China.
As much as it was essential to put an end to the worst crimes against humanity of the 21st century (with Sudan) to intervene as soon as possible in Syria—and this remains the case today, despite ever-increasing difficulties—the question of practical means of action arises when military action is excluded—and indeed in the Syrian case too, since the prospects of a decisive intervention are becoming increasingly remote. This strategy, despite its obvious limitations, is based on three types of action
The first is to name and legally characterize the crimes. It may seem symbolic, but it has a major effect on public opinion, preparing it for firmer foreign policy decisions. The European Parliament has thus been able to characterize the war crimes and crimes against humanity committed in Syria not only by Assad and his accomplices, but also by Putin. It also named the crimes against humanity and genocide of the Chinese regime—and the latter term was also taken up by both Mike Pompeo and Antony Blinken. Several national parliaments have done the same, notably Belgium. Governments, especially of the EU member states, should adopt this tone towards both Moscow and Beijing, to stick to the P5 countries. It is also to be hoped that now that the UN Secretary General, António Gutterez, has been reappointed for a second and final term, he will no longer be satisfied with vague statements, but will dare to name the perpetrators of these crimes. In practical terms, one does not talk in the same way to a war criminal as to a leader, even an undemocratic one, who does not have such massive and deliberate crimes on his record.
The second type of action is to push for justice wherever it can be achieved and to continue the work of investigation without respite. The work undertaken by Judge Catherine Marchi-Uhel, head of the International, Impartial and Independent Mechanism (IIIM) charged with facilitating investigations into the most serious violations of international law committed in Syria, is to be commended. The investigations that the IIIM has been able to carry out have led to trials conducted under universal jurisdiction and a first conviction of a Syrian criminal against humanity, Anwar Raslan, by the Court of Koblenz. Other procedures are underway and it is essential that all States, especially European ones, facilitate much more the procedures of this type, which are sometimes still hindered.
Finally, it is essential to “encircle” these criminal regimes with legal procedures. It is therefore fortunate that a growing number of states have adopted “Magnitsky” type laws that allow for the punishment of individuals who have committed serious human rights violations (freezing and seizure of assets, travel ban). However, these lists must be extended to include the highest-ranking politicians of these states. But they must be complemented by sanctions against those accused of corruption or receiving favors from these regimes, in order to reduce the support they receive. Finally, the notion of complicity must be extended to the “facilitators” of these crimes. The case arises directly for non-Chinese companies suspected of benefiting from the forced labor of Uyghurs to produce their products—and a complaint for complicity in crimes against humanity was recently filed with the Paris court. Without doubt, it would be necessary to go even further in order to sanction companies that directly promote the enrichment of regimes responsible for crimes categorized as imprescriptible. These procedures are probably still limited, but they will eventually lead to the weakening of their leaders. They contribute to the reinforcement of the awareness of the norm, including among private actors, while it is weakening on the world diplomatic scene.
The insecurity of crime
Apart from the work of academics, mainly lawyers, and human rights organizations, too few international experts have seriously considered the issue of mass crimes in international relations, as if they had little to do with security issues. Many still adopt a simplistic approach that distinguishes between the realist and idealist dimensions of international politics, which we have already emphasized. The reality is that human rights and security are intrinsically linked and that war crimes and crimes against humanity pose a direct threat to democracies, beyond the people who are their victims.
It has often been rightly pointed out that crimes at home offer, especially for large states with the means to do so, a reliable prediction of their aggressions abroad. Adding war crimes and crimes against humanity abroad signals a desire for total disruption of the international scene. A certain classical and simplistic vision of international politics wants it to be linked to the supposedly invariant interests of States. This vision, which we have discussed elsewhere, does not manage to perceive the specificity of this type of crime. Not only does it equalize perceptions between regimes—sometimes with the proven intention of whitewashing the worst regimes for ideological or interest reasons—and, therefore, prevents us from understanding them in their specificity, but it also hinders our understanding of their actions and their ultimate meaning.
That states intend to weaken our perception of war crimes and crimes against humanity and, in so doing, the judgment that should sanction them, speaks volumes about the total destruction of values, principles and organizations that they intend to accomplish. If they intend to make these crimes invisible, it is to make their war actions imperceptible and anodyne. Their propaganda is certainly working on this, often in a soft and invisible way.
Today, the weakness of our reactions endorses their strategy in a way. If we want to be serious in our project of an alliance for democracy, the naming of crimes comes first. In our fight for injustice, the first evil to be fought is injustice. Finally, we cannot talk about human rights in a vague and undifferentiated way without naming the perpetrators of the crimes with the utmost precision. Certainly, in order not to give in to whataboutism—the tendency of the perpetrator to immediately accuse the other of identical misdeeds, even if they are ancient or incomparable—it is important to be just as consistent in naming the more limited war crimes, not linked to a strategic project of destruction, or even sometimes “accidental”. Every crime counts and must be judged as such. Nor can any State respond to crime with crime.
The awareness of the universality of crime and, so to speak, of the correspondence between crimes is also part of the idea that we must restore the famous and so little credible and real “international community”. The former Chief Rabbi of Israel, Yisrael Meir Lau, referred to the crimes in Syria as the “Shoah” and the Sephardic Chief Rabbi, Yitzhak Yosef, referred to them as a “small Holocaust”—and these words, which touch on the sacred, thus point to the community that ties the victims of the crimes together. More recently, the Jewish community in the United Kingdom has been at the forefront of alerting to the genocide committed in Xinjiang, precisely in the name of the universal conscience of which it was the guarantor.
No doubt this was also an appeal to Western leaders. When crimes of this magnitude are committed, it is we who are in danger. We did not defend the Syrians, the Uyghurs and the children of Darfur; we allowed genocide to take place in Rwanda and we turn a blind eye to the Burmese victims, first the Rohingyas, then the entire population of this country who are asking for freedom. Who will respect us and help us tomorrow?
Our indifference to crime is preparing our strategic defeat. Our moral short-sightedness is only ever the product of our intellectual indigence.