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Comment by rayiner | Hacker News Reader

Prosecution for "war crimes" is something that only happens if you lose a war. That's not a cynical statement; it falls out of trying to reconcile the concept of "war crimes" with our concept of a world of sovereign nations. Sovereign nations aren't bound by any higher sovereignty that can set rules and subject violators to legal process. The only context in which a nation, or its leaders, can be punished for "war crimes" is when it loses a war and is temporarily inferior to the victors, who can impose prosecution as punishment for conduct during the war.

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This is simply not true. Prosecutions for war crimes have happened both for winners and losers of wars. The truth, to be more exact, is that the losers are overwhelmingly more prosecuted than the winners (by the winners), but the winners now have the option to be brought before the ICC in the Hague.

http://en.wikipedia.org/wiki/International_Criminal_Court

Of course the chances of countries being signatory to (and having ratified) that particular treaty are roughly proportional to the inverse of their activities regarding such crimes in the recent past.

You ever heard of the "Hague Invasion Act"?

"U.S. President George Bush today signed into law the American Servicemembers Protection Act of 2002, which is intended to intimidate countries that ratify the treaty for the International Criminal Court (ICC). The new law authorizes the use of military force to liberate any American or citizen of a U.S.-allied country being held by the court, which is located in The Hague. This provision, dubbed the "Hague invasion clause," has caused a strong reaction from U.S. allies around the world, particularly in the Netherlands.

In addition, the law provides for the withdrawal of U.S. military assistance from countries ratifying the ICC treaty, and restricts U.S. participation in United Nations peacekeeping unless the United States obtains immunity from prosecution."

http://www.hrw.org/news/2002/08/03/us-hague-invasion-act-bec...

I think that sounds like a good thing.

If anybody doesn't, have you ever actually looked at the laws enforced by the ICC and how the judges and prosecutors are appointed? And who has the authority to change those laws? Just because you call something the International Criminal Court doesn't mean that it isn't a ridiculous Kangaroo court.

Without going into a detailed review, the laws all look so vague that any participant in any kind of conflict could be changed with a huge pile of crimes, depending on the whim of the judges and prosecutors. Most sane legal systems require that any law be defined strictly enough that an individual can always be sure whether an act he is planning to commit does or does not violate the law, and I think this body of laws is far, far away from that point.

As for the governing bodies, it seems the primary authority is a body in which every member nation has a single representative and a single vote (the Assembly of States Parties). Uh yeah, I bet about 10 seconds after this court was given any real power, the dictatorships of the world would horse-trade enough votes to change anybody who was politically unpopular with them with a huge pile of crimes whose definition is so vague that it's impossible to know whether you've committed them or to defend against the accusation of them.

> Prosecutions for war crimes have happened both for winners and losers of wars.

Technically true. But to date the ICC has only ever prosecuted Africans. This can be seen as a continuation of Europe's colonial tendencies to treat African nations as inferior sovereigns.

Well, this is easy to answer.

Most major wars since WW2 have been initiated or led by the US, who have not signed the ICC treaties.

Yugoslavia has had its own court, as well as the Khmer stuff and the Spanish regime.

That only leaves African wars to be dealt with.

Milosevic was prosecuted by the ICC and died in jail four months before an almost certain conviction. The Pinochet case predates the ICC, but although the British government intervened to temporarily "halt" his extradition to Spain, the speed of his subsequent exit (he flew back to Santiago within hours) suggests the move was a political one to push things back to Chile, where Pinochet faced subsequent prosecution and died under house arrest.

So some cynicism is certainly deserved, but it is probably more accurate to say that the more political influence someone has, and the more dirt they hold on other countries, the more protracted the entire judicial process becomes.

Milošević was prosecuted at the ICTY, a special-purpose tribunal for Yugoslavia.

Mirko Norac "is a former general of the Croatian Army. He was the first Croatian Army general to be found guilty of war crimes by a Croatian court." (http://en.wikipedia.org/wiki/Mirko_Norac )

The Gospić massacre took place in Croatia, and "[t]he trial was seen by a BBC News analysis as indicating a willingness on the part of the Croatian government to deal with war crimes committed by its nationals, following a long period of inactivity described by Rijeka County Court judge Ika Šarić as a "conspiracy of silence"." (http://en.wikipedia.org/wiki/Gospi%C4%87_massacre )

Isn't that a counter-example?

Ahh, you said "a nation, or its leaders", but not other citizens of the nation. So what about Efrain Rios Montt of Guatemala? Quoting Reuters, "He is the first former head of state to be convicted on genocide charges in his own country", and genocide is a war crime.

Isn't that a counter-example?

While it was a civil war, you said war crime only makes sense when a sovereign nation loses a war and is 'temporarily inferior' to another nation, which is not the case in Guatemala. To be certain, the judgement was overturned, but your statement was limited to prosecution, and Rios Montt was definitely prosecuted for war crimes.

I read the OP's "we'll continue to absolve any American president of war crimes" as referring to an external prosecution, but on second thought it could very well mean domestic prosecution. In which case you're right, of course, that countries can punish their own leaders for whatever they want, war crimes or otherwise. I was thinking more about external punishment ala the International Criminal Court, the Nuremberg trials, etc.

I took the "we" to be "we as US citizens", but even without that, a Spanish court under the principle of universal jurisdiction famously indicted Augusto Pinochet for crimes against humanity. Pinochet was then arrested in the UK.

That's lead to worries "that Spain's judicial system was being hijacked by activist judges pursuing a political agenda. " http://www.gatestoneinstitute.org/4149/spain-universal-juris... (Kissinger, of course, doesn't like this idea one bit.)

In that same link you'll see mention that "In March 2009, Baltasar Garzón, Spain's most high-profile judge at the time, invoked the principle of universal jurisdiction to investigate six former Bush administration officials for allegedly giving legal cover to torture committed at the U.S. detention center in Guantánamo Bay, Cuba."

So in principle a court in, say, Switzerland could indict the US president for war crimes and attempt to prosecute it.

Thus, I still think the definitional interpretation you gave is incorrect.

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