Victor's justice

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The execution of Henry Wirz in 1865 after the American Civil War is seen by some as victor's justice.

Victor's justice is a term which is used in reference to a distorted application of justice to the defeated party by the victorious party after an armed conflict. Victor's justice generally involves the excessive or unjustified punishment of defeated parties and the light punishment of or clemency for offenses which have been committed by victors. Victors' justice can be used in reference to manifestations of a difference in rules which can amount to hypocrisy and revenge or retributive justice leading to injustice. Victors' justice may also refer to a misrepresentation of historical recording of the events and actions of the losing party throughout or preceding the conflict.[1]

The English term "victors' justice" was first used by

loan translation of synonymous German Siegerjustiz, which is attested since at least the 1960s.[3] The closely related term Vae victis
behaviour is where a victor unilaterally changes the agreed treaties or their interpretations and is seen as a form of victor's justice.

History of the laws of war

Legal constraints on the conduct of war in

justice, Cicero argued: "...when the victory is won, we should spare those who have not been blood-thirsty and barbarous in their warfare" (warmaking being excused only when "we may live in peace unharmed" in no other way).[4]

The Western tradition of thinking on just war continues into

laws of war
.

Allegations

laws of war during the Battle of the Bulge were permitted by the military code of his opponent, the United States Army
.

Victor's justice is alleged to have occurred throughout history.

A well-known ancient example is the Siege of Plataea in 429–427 BC, during the Peloponnesian War. The town of Plataea, a staunch ally of Athens, steadfastly endured a prolonged siege by the Spartans and their allies, finally surrendering to the Spartans when all supplies they had were exhausted and no hope of relief remained. They had trusted the Spartans to a fair trial, as the Spartans had promised to "judge them all fairly", and that "only the guilty should be punished" if they yielded. Yet, when the Plataean prisoners were brought before the judges, no trial was held and they could offer no real defense. The Spartans simply asked each of the prisoners if they had done the Spartans and allies any service in the war, to which the prisoners ultimately had to no choice but to answer "no". It was well known to anybody involved that during the entire war the Plataeans had fought on the Athenian side, against the Spartans, that being the duly declared policy of their city-state. Upon the Plataeans giving that negative answer, they were put to death one by one – over 200 of them. Thucydides clearly considered this an unfair judicial procedure.

Documented allegations of victor's justice became especially prevalent since the 19th century.

James Madison Page, a veteran of the

fairness of his post-war trial. In 1980, historian Morgan D. Peoples referred to Wirz as a "scapegoat" and his conviction remains controversial.[6][7]

The war crimes trials following

Axis nationals or collaborators for war crimes and did not prosecute Allied war crimes. This led to the paradox that no one from the Soviet Union was charged although the USSR had participated in the Invasion of Poland on September 17, 1939. So while German defendants were charged with waging war of aggression
for Germany's attack on Poland, no one from the Soviet Union was charged even though the USSR had attacked Poland as well. Indeed, the Soviets even sat in judgment, as one of the four Allied judges was Soviet. Similarly, one of the indictments was "conspiracy to wage aggressive war", but the Soviets who conspired with the Nazis to wage aggressive war against Poland were not indicted.

By the mid-twentieth century, the armed forces of developed nations commonly issued their soldiers detailed written guidance on the customs and international treaty obligations that comprise the laws of war. For example, at the trial of

crimes against peace, and the investigation and judgment of these cases were left to Finnish courts according to Finnish law. However, an ex post facto law
had to be instated for those cases, as the Finnish Criminal Act did not cover responsibility for politics resulting in a war. In restricting the international tribunal to trying suspected Axis war crimes, the Allies were acting within normal international law.

The

German Democratic Republic (East Germany) absorbed into the Federal Republic of Germany (West Germany) to form the modern unified country of Germany. Reunification saw numerous East German officials charged with crimes by German courts that were direct continuations of West German courts, which some considered to be victor's justice. Many low-ranking members of the Border Troops of the German Democratic Republic were charged with crimes related to Republikflucht, with an estimated 300 to 400 deaths at the Berlin Wall and Inner German border. These border guards, known as Todesschützen ("death shooters"), were often convicted despite arguing they were following Schießbefehl ("order to fire") from superiors which instructed guards to shoot escapees that ignored two warnings to stop. The German courts argued East German border laws were so fundamentally in conflict with the International Covenant on Civil and Political Rights, which East Germany had signed and ratified, that they were not law at all but formalized injustice, and thus the soldiers ought to have disobeyed their commanding officers.[9]

Attempts to ensure the fairness of war crimes prosecutions

Since World War II, the accusation of victor's justice has arisen in every subsequent conflict where war crimes prosecutions have been made. Examples of include the

Yugoslav wars, the Rwandan genocide, and the war in Afghanistan
.

The International Criminal Court (ICC) was set up in 2003 as a treaty arrangement between member states in an attempt to provide a neutral international court that avoids the accusation of "victor's justice", and that would prosecute all alleged war crimes, on either side of any conflict.[10][failed verification]

Current allegations

  • The International Criminal Tribunal for the former Yugoslavia (ICTY), organized by the United Nations claims jurisdiction over all acts of genocide, crimes against humanity and war crimes within the territory of former Yugoslavia. But so far the Tribunal has prosecuted only citizens from the Balkan states. Most defendants have been Serb politicians,[11] soldiers and paramilitaries but Croats, Bosnians and ethnic Albanian Kosovo Liberation Army guerrillas have also been tried. However, the Tribunal has declined to investigate allegations made by Western academics and Serb politicians, who accused NATO officials of war crimes during the 1999 bombing of Serbia (the Kosovo War), including the deliberate bombing of a Serb TV station killing journalists, and the lethal bombing (possibly reckless) of a railway bridge whilst a civilian train was passing over it.[11]
  • The International Criminal Tribunal for Rwanda (ICTR), organized by the United Nations claims jurisdiction over all acts of genocide, crimes against humanity and war crimes within the territory of Rwanda. However, while the Tribunal has successfully prosecuted members of the former Hutu government for their crimes, it has largely failed to prosecute war crimes committed by the Tutsi-led Rwandan Patriotic Front, leading it to be accused of victor's justice.[12][13][14][15][16][17][18]

See also

References

  1. ^ Schabas, William (Spring 2010). "Victor's Justice: Selecting 'Situations' at the International Criminal Court, 43 J. Marshall L. Rev. 535 (2010)". UIC Law Review. 43 (3): 535.
  2. ^ Minear, Richard (1971). Victors’ justice: the Tokyo war crimes trial. Princeton NJ: Princeton University Press.
  3. ^ "DWDS – Digitales Wörterbuch der deutschen Sprache".
  4. ^ a b Cicero, On Duties
  5. ^ Page, James Madison. The True Story of Andersonville Prison. Digital Scanning, Inc., Scituate, Mass., 1999.
  6. ^ Morgan D. Peoples, "The Scapegoat of Andersonville’: Union Execution of Confederate Captain Henry Wirz", North Louisiana Historical Association Journal, Vol. 11, No. 4 (Fall 1980), pp. 3–18.
  7. ^ Linda Wheeler. Wirz Took Controversial Fall for Andersonville Tragedy, The Washington Post, June 10, 2004.
  8. ^ Trial of Otto Skorzeny and Others, General Military Government Court of the U.S. Zone of Germany, August 18 to September 9, 1947
  9. ISBN 978-3-86153-517-1
    .
  10. ^ "News Archive from Monday, July 9, 2012 – Why Did the U.S. Say No to the International Criminal Court? – – News – Alumnae/i Hub – Vassar College". vassar.edu.
  11. ^ a b "Victor's Justice or Law?".
  12. S2CID 143431169
    .
  13. ^ Keith, Kirsten MF (2009). "Justice at the International Criminal Tribunal for Rwanda: Are Criticisms Just". Law in Context: A Socio-Legal Journal. 27: 78.
  14. ISSN 0149-9246
    .
  15. doi:10.1080/1475483032000137084
    .
  16. ^ Schabas, William A. (2010). "Victor's Justice: Selecting Situations at the International Criminal Court". John Marshall Law Review. 43: 535.
  17. SSRN 2197823. {{cite journal}}: Cite journal requires |journal= (help
    )
  18. ^ Morrill, Hanna (2011). "Challenging Impunity - The Failure of the International Criminal Tribunal for Rwanda to Prosecute Paul Kagame". Brooklyn Journal of International Law. 37: 683.
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