Legitimacy and Coherence
Edited by Gideon Boas, William A. Schabas and Michael P. Scharf
Chapter 3: Making war crimes trials work – balancing fairness and expedition
The author’s vision of justice in the arena of armed conflict was formed during his early years in cinemas showing a weekly diet of Westerns. Life was cheap; the good and the bad were clearly defined and distinguished; justice was exclusively the province of the white man; it was never administered by the Indian. The prisoner captured by the Indian had to be handed over for a fair trial under white man’s justice, and the lynch mob was kept at bay until the US Marshal arrived or a judge was brought in. Making these arrangements took a matter of days and the trials themselves never seemed very long. By the end of the film, the viewer was never in doubt that what had happened was fair and expeditious. Of course as a child the author had no refined notion of due process, but it was already in existence. Indeed, go back more than a century before these days of the American Wild West and there you will find in the United Kingdom discussion of mens rea and the burden of proof in terms which are readily understood today.1 Fast forward to the present day however, and relatively simple notions of what is fair come wrapped in layers of procedural complexity. The objectives of military action can be ill-defined – e.g. locating and disabling weapons of mass destruction, or regime change? The uncertainty over the objectives, one of which may be legitimate and the other not, seems almost designed to create confusion.
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