How do you hold people and countries accountable for genocide, ethnic cleansing, and other atrocities committed during wartime? The modern system of finding and prosecuting those responsible for war crimes evolved after World War II, as the international community sought to answer that question.
But the international justice system is still changing, and trying to react to new forms of conflict like terrorism and cyber-warfare. It’s the subject of a new, three-hour PBS special series called 'Dead Reckoning: War, Crime, and Justice from World War II to the War on Terror.'
WGBH News spoke with Professor Allan Ryan, a former Chief War Crimes Prosecutor at the U.S. Department of Justice, and a co-producer of 'Dead Reckoning.'
Justice after World War II
Ryan says two trials set the precedent for the modern international justice system. First, the highly-publicized Nuremberg trials, a series of military tribunals to prosecute the leadership of Nazi Germany who planned and carried out the Holocaust. Second, the lesser-known trial of General Tomoyuki Yamashita, who commanded Japanese troops that were responsible for a number of war crimes in the Philippines during the final days of World War II.
“You put those two together,” Ryan said, “and you come up with a pretty good picture of how the idea developed—not only that war criminals should be brought to trial but that the American legal system should be the model for it.”
Prosecuting Nazi War Criminals Hiding in the United States
While working for the Department of Justice and arguing cases before the Supreme Court, Ryan was assigned a case by the Immigration and Nationalization Service in the late 1970s. Fedorenko v. United States was “one of the very early cases,” Ryan said, “that really looked at Nazi war criminals who had come here and had stayed here without any notice for 30 years.”
Ryan won that case, and was asked to become the Director of Office of Special Investigations. “When the office was set up I was the most experienced war crimes prosecutor around because I had one case,” he laughed. “That’s it.”
He served as the Director of OSI from 1980-1983, working to identify and prosecute Nazis and those who aided them in the United States. It involved gathering, verifying, and presenting evidence in court from decades-old crimes, and often made more complicated because the evidence was in Eastern Europe during the Cold War.
The Challenge of Prosecuting War Crimes Today
“I'm not convinced that in 20 years there will be a regime of war crimes prosecutions as we have come to know it in the 70 years since the end of World War II,” Ryan said. “I think that's one of the real questions that remains unanswered.”
Currently, Ryan said, “War crimes are not committed under the sponsorship of states—but non-state actors like ISIS or Al-Qaeda or other groups.” That complicates whom to hold responsible and whom to prosecute.
Traditional prisoners of war, which countries can negotiate over, are almost a thing of the past, Ryan said, and “even the whole question of whether we can enforce any sort of law is really open to question.”
Redefining War
Language is one way to trace how terrorism and technology have muddled the field of international law.
“The phrase that is now preferred in international law is armed conflict, which is much easier to identify," Ryan said. "If there's shooting going on, then it's armed conflict. But even that presents questions—what about cyber-war, where there's no bullets flying? Can that still be called armed conflict? There’s really no answer to that yet.”
The Bystander Effect
The U.S. and the international community as a whole is often criticized for not taking action while atrocities are being committed—take the ongoing civil war in Syria, for example.
Ryan says the reason it’s easier to pursue post-war justice is because “it’s always a highly-politicized issue as to whether to get involved.” He points to the different ways the U.S. responded to humanitarian crises in Rwanda and Kosovo during the 1990s.
“A horrific genocide took place [in Rwanda] in 1994, but the Clinton administration did nothing while it was going on because it was not of any particular impact to the United States," Ryan said. "And they resolutely refused to use the word genocide in talking about it." But a few years later, Ryan says, “President Clinton invoked the NATO treaty because he said there is a genocide occurring in Kosovo. That's because Central Europe was very close to our national and international interests.”
When it comes to intervention, he says, “You can't get away from the politics.”
“Dead Reckoning: War, Crime, and Justice from World War II to the War on Terror” re-airs Friday, March 31 and Sat. April 1 on WGBX and WGBH World.
