Justice in the Balance:
David Cohen reflects on war crimes tribunals of the past, present and future

Last fall, when the words "military commissions" began appearing in daily newspapers, Professor David Cohen felt it was time to take a broad look at tribunals and war crimes. The resulting conference took place on March 16 of this year. Organized by Cohen and Eric Stover, respectively the directors of UC Berkeley's War Crimes Studies Center and Human Rights Center, the conference brought together experts from recent tribunals in Yugoslavia, Rwanda and East Timor. As they explored the particulars of each tribunal, participants discussed the roots of these modern trials in World War II and considered possible military commissions in the American future.

International protestors call for indictment in East Timor

The Berkeley War Crimes Studies Center has been Cohen's pet project since its founding last year. It grew out of his own research project on the trials of World War II. "The general doctrines that were developed after World War II are the same doctrines being applied today," said Cohen. "They were developed in response to systematic, government-organized criminality. These are the only store of precedents and experience we have."

The March conference, titled "Justice in the Balance," brought a range of key tribunal participants to campus. "These are people who can speak with authority and raise questions about the ways justice is and isn't being served," said Cohen. "It was especially interesting to look at East Timor, which everyone generally ignores."

The tribunal for East Timor was established following the violence of 1999, in which Indonesian-backed militia went on a rampage after East Timor voted for independence. The trials broke new ground by including both international and Timorese judges. "It's the first example of what's called a hybrid tribunal," said Cohen. "Each panel consists of two international judges and one Timorese judge. The prosecution and public defenders are similarly divided between international and Timorese components."

Other countries like Rwanda are trying defendants in two separate forums, one international and one domestic. Rwanda's international tribunal was represented at the conference by Alison Des Forges, a visiting professor in the rhetoric department and the world's leading authority on the Rwandan genocide. She is the principle expert witness and one of the main advisors to the prosecution.

"There are such severe problems in the Rwandan tribunal that we thought it would be important to have somebody who could speak from outside the country," Cohen said. Problems have included slowness, incomplete investigation, overexpenditure, and questions about the judges' qualifications. Six prosecutors were fired last summer for incompetence.

Ethnic Albanian refugees from Kosovo

According to Cohen, there has also been tension between Rwanda's own government tribunals and the outsiders who have come in from the United Nations. "There's a complicated relationship there," Cohen said. "The international tribunal has a staff of 800 and a budget of 90 million. The Rwandan government is impoverished, and it inherited a judicial system that was completely destroyed by the genocide."

As with Rwanda, the international tribunal in Yugoslavia was a creation of the United Nations Security Council. Judges were elected by the general assembly with the rule that no country could send more than one. "These kinds of tribunals involve a resolution by the international community," said Cohen. "Of course, the international community is not very consistent in doing that. There have been no tribunals for Sudan, Somalia, Burundi or Congo. Cambodia is the most frightening example, probably the largest scale genocide since World War II."

Defendants at the Nuremburg trials in post-WWII Germany

Until World War II, the concept of war crimes and the role of the international community had not been clearly defined. The famous Nuremburg trials, along with thousands of trials in Japan and the South Pacific, created the statutory framework that is still used today. But only a small fraction of these, about one percent, are currently available to tribunals and researchers. One of Cohen's main projects is making all materials from the World War II trials available through the Berkeley War Crimes Study Center and a German partner organization called The International Documentation Center for War Crimes trials, of which Cohen is co-director.

In the case of Bush's proposed military commissions, Cohen says it is not yet clear how the World War II precedents might come into play. "We don't know what these suspects are going to be charged with," he said. "These are not individuals who, as far as we know, were directly involved with terrorism in the united states. They were captured in the aftermath of combat operations in Afghanistan and are presumably connected to violations of the laws of war, or crimes against humanity, but we don't know what violations."

Meanwhile Cohen, who teaches in both the Rhetoric and Classics departments, is planning a fall class in conjunction with Eric Stover of the Human Rights Center. He hopes to host a large international conference in 2004, bringing together major players in the World War II trials with those who are continuing their work in tribunals of today.