The Self-Interest of Armed Forces in Accountability for their Members for Core International Crimes

Stanford University, the FICHL, and UC Berkeley War Crimes Studies Center co-organized an international expert seminar at Stanford on 27 November 2012 on the self-interest of armed forces in ensuring that their members are held accountable for core international crimes. Hosted by the Hoover Institution, the seminar heard Stanford Dean Richard Saller, Hoover Research Fellow Richard Sousa, Justice Richard J. Goldstone, Deputy Assistant Secretary of Defense William K. Lietzau, Professor Ruth Wedgwood, Bruce Houlder QC DL (Director, UK Service Prosecution Authority), General Agus Widjojo (Indonesian Armed Forces), Col. Michael Gibson (Canadian Deputy Judge Advocate General Military Justice), Judge Advocate General Arne Willy Dahl, Professors Rene Provost and Elizabeth Hillman, among others. The seminar starts a process which will lead to several publications and other follow up.  

The political and diplomatic rhetoric put forward in favour of criminal justice for atrocities frequently refers to the struggle against impunity and that there can be no lasting peace without justice. A common theme is the obligation to investigate and prosecute core international crimes under international law. Sometimes national prosecutions may be pursued in response to purely political interests or expectations. Both the language of international legal obligation and that of politics can act on military or civilian decisions to investigate or prosecute, as a raised stick. This seminar was not concerned with the stick, but the carrot.

Most often, such accountability tends to be rationalized and imposed as a 'stick', even when undertaken by the military. However, one should also look at accountability from a 'carrot' perspective, namely, whether such accountability is in the self-interest of the armed forces. Why do soldiers, officers and military leaders themselves often prefer such accountability? Is it because accountability mechanisms distinguish them as military professionals who are uncompromised by such crimes? Or is it because of the way individual incentive structures, such as promotion, function? Are they concerned that the commission of war crimes may undermine the public's trust in the military, increasing the security risks faced and the size and cost of deployment in the area concerned? Or are they motivated by moral, ethical or religious reasons? Does accountability ensure higher discipline and morale and therefore secure more effective chains of command? Or is it because accountability gives them a political advantage vis-à-vis potential opponents? Or does it promote a better public image? Could such accountability be particularly crucial when the armed forces are involved  in efforts to establish a new regime in a post-conflict situation or a process of democratization?  

The seminar contributes to creating a better understanding of the self-interested reasons that armed forces may have in ensuring accountability for core international crimes by clearly mapping and articulating the above issues and others. Seminar publications will provide military lawyers and military professionals around the world with a more comprehensive statement of these reasons, addressing also the needs of institutional military training mechanisms. The papers presented at the seminar will be published in an anthology and a concise policy brief summarizing the outcome of the seminar will be published online and in print in English, French, Spanish and Portuguese shortly after the event. It will list and describe each self-interest of armed forces in ensuring accountability as identified during the seminar.