Hiding in Plain Sight tells the story of the global effort to apprehend the world’s most wanted fugitives. Beginning with the flight of tens of thousands of Nazi war criminals and their collaborators after World War II, then moving on to the question of justice following the recent Balkan wars and the Rwandan genocide, and ending with the establishment of the International Criminal Court and America’s pursuit of suspected terrorists in the aftermath of 9/11, the book explores the range of diplomatic and military strategies—both successful and unsuccessful—that states and international courts have adopted to pursue and capture war crimes suspects. It is a story fraught with broken promises, backroom politics, ethical dilemmas, and daring escapades—all in the name of international justice and human rights.Hiding in Plain Sight is a companion book to the public television documentary Dead Reckoning: Postwar Justice from World War II to The War on Terror. For more information about the documentary, visit www.pbs.org/wnet/dead-reckoning/. And for more information about the Human Rights Center, visit hrc.berkeley.edu.
|Publisher:||University of California Press|
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About the Author
Eric Stover is Faculty Director of the Human Rights Center and Adjunct Professor of Law and Public Health in the School of Law, University of California, Berkeley. Victor Peskin is Associate Professor in the School of Politics and Global Studies at Arizona State University and Research Fellow at the Human Rights Center, School of Law, University of California, Berkeley. Alexa Koenig is Executive Director of the Human Rights Center and Lecturer in Residence in the School of Law, University of California, Berkeley.
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Hiding in Plain Sight
The Pursuit of War Criminals from Nuremberg to the War on Terror
By Eric Stover, Victor Peskin, Alexa Koenig
UNIVERSITY OF CALIFORNIA PRESSCopyright © 2016 The Regents of the University of California
All rights reserved.
The Promise of International Justice
The year 2011 was a perilous one for some of the world's most wanted fugitives. The first to feel the squeeze was Osama bin Laden, the al-Qaeda leader who had evaded justice since the September 11, 2001 attacks on the World Trade Center and the Pentagon that claimed 2,996 lives and prompted the Bush Administration to launch its "war on terror." On a pitch-black night in early May 2011 — fifty years after Israeli agents snatched former Nazi SS officer Adolf Eichmann off a Buenos Aires street and smuggled him to Israel to face trial for the extermination of millions of Jews — U.S. Black Hawk helicopters carrying Navy SEALs landed on a dirt road next to a high-walled compound just outside of Abbottabad, Pakistan. Within minutes, bursts of gunfire echoed through the corridors of the compound and bin Laden lay dead. Hours later, aboard the USS Carl Vinson idling in the North Arabian Sea, the body was washed in an Islamic ritual of ablution, wrapped in a white sheet, placed in a weighted bag, and dropped into the sea.
Next was Ratko Mladic, the sixty-eight-year-old Bosnian Serb general wanted by the International Criminal Tribunal for the former Yugoslavia for his alleged role in the massacre of more than 8,000 Muslim men and boys following the siege of the Bosnian town of Srebrenica in July 1995. The murders constituted the single worst atrocity on European soil since World War II. For sixteen years, Mladic had been a fugitive — sometimes living openly in the Serbian capital of Belgrade, sometimes hiding in a shabby military barracks on the city's outskirts. That all ended at dawn on May 26, 2011, when masked Serbian police officers raided the home of Mladic's elderly cousin, in the village of Lazarevo, north of Belgrade. The arresting officers found Mladic sitting in the front room, wearing a faded track suit, his face drawn and pale. "Good work," he said, handing over a pair of pistols. "You've found the one you're looking for."
Five months later, on October 20, 2011, Colonel Muammar Gaddafi was traveling in a heavily armed convoy across the Sahara Desert trying to avoid roadblocks set up by anti-government rebels. Earlier in the year, the International Criminal Court had issued an arrest warrant for the Libyan leader for his role in the torture and murder of hundreds of protesters who had taken to the streets to demand an end to his forty-two-year dictatorship. As Gaddafi's convoy sped through the desert, an American drone, launched from a NATO base in Sicily and controlled from a U.S. base outside Las Vegas, sped through the sky above the snaking line of black SUVs. The drone pilot, seated in a leather armchair in a trailer in the Mojave Desert, drew a bead on the convoy's lead vehicle and let go a fusillade of Hellfire missiles. As the convoy ground to a halt, a NATO warplane struck it with airburst bombs, incinerating dozens of Gaddafi's fighters. Still unharmed, Gaddafi and several members of his inner circle fled to a large storm drain, but were quickly set upon by rebels. One man plunged a bayonet into Gaddafi's back while others pummeled him. Later that afternoon, Gaddafi's lifeless body was put on display in a meat-packing plant in the northwestern city of Mirasta before being buried in an unmarked desert grave.
Bin Laden's assassination, Mladic's arrest, and Gaddafi's demise — as well as Eichmann's kidnapping fifty years earlier — are among the episodes we examine in this book. Our principal aim is to explore the political, legal, and operational dimensions of the pursuit of war crimes suspects in the seven decades since Word War II. In doing so, we look critically at the range of diplomatic and military strategies — both successful and unsuccessful — that states and international criminal courts have adopted to promote and carry out international arrests.
The fact that governments and international criminal courts are now, decades after the Nuremberg and Tokyo war crimes trials, pursuing once-untouchable military and political figures like Mladic and Gaddafi is in itself a remarkable development — and one that threatens to pierce state impunity, alter traditional notions of sovereignty, and transform international affairs. Still, the pursuit of international justice faces enormous challenges. States that are implicated in mass atrocities often resist handing over suspects for trial in international courts. At the same time, the international community is often ambivalent about pursuing indicted heads of state and warlords out of fear that such endeavors will upset quests for peace and regional stability.
So how have these challenges been confronted and, at times, overcome? We endeavor to answer that question by tracking the variation over time in efforts to pursue and prosecute suspects indicted by international tribunals. We begin by analyzing the challenges Allied powers faced in their pursuit of German and Japanese war criminals in the aftermath of World War II. We then focus on subsequent international tribunals, including the International Criminal Court, and their efforts to enlist states, regional organizations, and individuals to capture suspects. We close with an examination of the post-9/11 landscape and the United States' increasing reliance on military force (as opposed to diplomatic means) to capture — or more often to simply kill — terrorist suspects, with little or no judicial scrutiny.
In the mid-1990s, when the United Nations created the International Criminal Tribunal for the former Yugoslavia, the first international war crimes tribunal of the modern era, many observers predicted that it had little chance of persuading states to hand over suspects for trial. Yet, as we explain in chapters 5 and 6, changing global and domestic political dynamics eventually helped the Yugoslavia tribunal gain custody of all its remaining indictees by summer 2011 and enabled its sister court, the International Criminal Tribunal for Rwanda, to obtain custody of most of its indictees. That said, such progress is by no means inevitable for today's international tribunals. As we note in chapter 7, hybrid or mixed international courts — usually located in the countries where the crimes occurred and designed to apply a mixture of international and national law — have had mixed success in gaining custody of their indictees. The International Criminal Court, meanwhile, has faced an uphill battle in garnering cooperation in arresting and handing over suspects — even from many states that have joined the court and pledged their assistance — as we describe in chapter 8.
In sharp contrast to the International Criminal Court and other modern-day tribunals, the Nuremberg and Tokyo tribunals, the subject of chapter 2, had scores of high-level suspects in custody very soon after their establishment, thanks to the fact that the Allies had vanquished the German and Japanese armies and were now occupiers of their lands. Territorial control as military occupiers was key, but it wasn't the only factor. As we document in chapters 3 and 4, the Allies' initially strong commitment to pursuing criminal accountability in the wake of World War II soon waned, despite relatively favorable conditions, as Cold War political interests began to take priority. The U.S. government, intent on recruiting Germans as intelligence assets and as scientists to help the West outpace the Soviets, helped many Nazis evade justice. As we'll see time and again, the ebb and flow of political will on the part of states and the international community as a whole has been the common denominator in the pursuit of international justice since World War II.
In our work on this book, we drew on extensive historical research, including media and war crimes reports, as well as more than a hundred in-depth interviews conducted in Africa, Europe, Asia, and North America with a range of individuals who have been heavily involved in the pursuit of war crimes suspects over the past seventy years. Among those we interviewed were international and domestic investigators, judges, diplomats, government officials, military personnel, politicians, historians, and human rights activists, who helped us understand the diverse strategies that governments, international criminal courts, international law enforcement, and nongovernmental organizations have used to pursue and capture war criminals.
LAW OUT OF THE RUBBLE
The first known international trial for war crimes took place in Breisach, Germany, in 1474, when twenty-seven judges of the Holy Roman Empire ruled that Peter van Hagenback — a mercenary hired by the Duke of Burgundy to wrest taxes from the people — had violated the "laws of God and man" by allowing his troops to rape, murder, and pillage. Hagenback's conviction underscored one of the defining — if unrealized — ideas of civilized society since antiquity: even in war, unnecessary suffering inflicted on civilians is forbidden. Yet it was not until the nineteenth century that states accepted and ratified formal international agreements embodying this principle.
In the mid-1860s, a handful of European states met to plot a new international humanitarian legal order that would govern the interactions between combatant forces and between those forces and noncombatants during times of armed conflict. This effort was sparked by two recent wars and the mayhem and massive loss of life that ensued. The first was the Crimean War of 1854, in which some eighty thousand members of the Franco-British expeditionary force perished in horrendous and chaotic conditions. Five years later, in June 1859, tens of thousands of Austrian, French, and Italian soldiers were killed in the Battle of Solferino in northern Italy (or later died of untreated wounds). The day after the battle, a young Swiss businessman named Jean-Henri Dunant visited the site and was so shocked by the carnage he worked with the Swiss government to establish the International Committee of the Red Cross in 1863 to provide better medical care to all sides in military conflicts. A year later, twelve European governments met in Geneva to sign the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, the first international agreement on the laws of war. Referred to as the First Geneva Convention, the agreement provides specific protections for civilians, as well as medical and religious personnel, in battle zones, and for soldiers who are hors de combat (outside the fight and therefore noncombatants).
Meanwhile, in the United States, president Abraham Lincoln in 1863 authorized the War Department to promulgate guidelines, known as the Lieber Code, to govern the conduct of the Union Army during the Civil War. Consisting of 159 articles, the code mandated the humane treatment of civilian populations in occupied areas, forbade the use of torture to extract confessions, and set out the rights and protections of prisoners of war. Thirty-six years later, in 1899, the Convention with Respect to the Laws and Customs of War on Land was adopted in The Hague, codifying generally accepted principles of customary international law, including the protection of civilian institutions, such as hospitals and churches. Taken together, these conventions represented the first steps toward establishing the boundaries of what was legally permissible and not permissible in international, and eventually in non-international, armed conflicts.
Following World War I, the Allied Powers tried to prosecute nearly a thousand German suspects of war crimes ranging from mistreating prisoners of war to attacks on nonmilitary targets such as hospital ships, but that effort quickly fizzled when the German government refused to hand over the defendants. It wasn't until the end of World War II that the first sustained effort to hold war criminals accountable finally took root. During the 1940s and early 1950s, thousands of trials of German and Japanese military and civilian officials accused of wartime crimes were held throughout Europe and Asia. These proceedings — most notably the Nuremberg trial of major Nazi civilian and military leaders — established many of the core legal principles of international criminal law that are still in force today.
According to legal scholars Ronald Slye and Beth Van Schaack, the most salient of the Nuremberg Principles, as they became known, are (1) that individuals — and not societies — should be held accountable for crimes committed in war; (2) that international law has primacy over domestic law; (3) that those who commit "crimes against humanity" are — like the pirate and slave trader before them — hostis humani generis, enemies of all mankind, and thus may be arrested and tried by any state; (4) that international courts, freed from the legal and political restraints often placed on their domestic counterparts, are often better positioned to prosecute war crimes suspects; (5) that high-ranking officials are no longer shielded by head-of-state and sovereign-immunity claims and, like common soldiers, should be held criminally responsible for international crimes committed in war; and (6) that private actors — financiers and industrialists, for example — as well as state officials can be convicted for war crimes.
Nuremberg's greatest legacy was the introduction of a new international crime: crimes against humanity. Defined in the charter of the Nuremberg tribunal, crimes against humanity include a constellation of criminal acts — murder, extermination, enslavement, deportation, persecution, and other inhumane acts — committed as part of a widespread or systematic attack against a civilian population. Though not included in the Nuremberg charter, a second international crime, "genocide" — often called "the crime of crimes" — became the subject of a multilateral treaty when the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948. Genocide was defined as "acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group." Such acts include killings, causing serious bodily or mental harm, deliberately inflicting on a group conditions of life to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group. Genocide and crimes against humanity are considered crimes against all humanity, not just the individual victims or their immediate communities, and states are legally obliged to prevent them and prosecute offenders or extradite them elsewhere for prosecution. In this book we use war crimes suspect as an umbrella term to include any individual accused of committing a serious international crime — such as genocide, crimes against humanity, war crimes, or terrorism — in the context of an armed conflict.
The years immediately after World War II also witnessed the establishment of the United Nations itself, the intergovernmental agency dedicated to maintaining international peace and security, fostering human rights and social and economic development, and providing humanitarian aid in cases of famine, natural disaster, and armed conflict. In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights, which one of its principal drafters, Eleanor Roosevelt, called "the international Magna Carta for all men everywhere." The agreement set out universally accepted norms of human dignity and freedom and encouraged states to incorporate them into their constitutions. Subsequent human rights treaties sought to uphold political and civil rights, prohibit torture, and protect and guarantee equal treatment for racial and ethnic groups, women, children, indigenous people, and the disabled.
Excerpted from Hiding in Plain Sight by Eric Stover, Victor Peskin, Alexa Koenig. Copyright © 2016 The Regents of the University of California. Excerpted by permission of UNIVERSITY OF CALIFORNIA PRESS.
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Table of Contents
Introduction: The Promise of
International Justice Part One 2. To Nuremberg and Beyond 3. The Hunters and the Hunted 4. Pursuing the Last Nazi War Criminals Part Two 5. Balkan Fugitives,
International Prosecutors 6. Tracking Rwanda’s Génocidaires 7. Hybrid Tribunals: Thinking Globally, Acting Locally Part Three 8.
International Criminal Court: At the Mercy of States 9. The “War on Terror” and Its Legacy 10. Epilogue: The Future of Global Justice Notes Selected Bibliography