Whose justice is it anyway?: Godfrey Hodgson looks at the arguments against the victors punishing war criminals

'THERE is no doubt,' Winston Churchill wrote to Anthony Eden in 1944, when he learnt details of the Nazi persecution of Jews in Hungary, 'that this is probably the greatest and most horrible crime ever committed in the whole history of the world . . . It is quite clear that all concerned in this crime who may fall into our hands . . . should be put to death after their association with the murders has been proved.'

Less than three years later, Hitler's personal physician, Karl Brandt, who was also the Third Reich's health minister and a major-general in the SS, was hanged for his part in medical experiments carried out on prisoners in concentration camps. As the black hood was placed over his head, he said: 'This is nothing but political revenge. I served my Fatherland as others before me.'

Here we have the conflicting positions on the punishment of war crimes: the thirst for justice, and the uneasy feeling that 'victors' justice' is unseemly. The question once again becomes urgent as we hear of crimes of a horrifying kind in the former Yugoslavia. Hundreds of Muslim women are said to have been raped, apparently as part of a deliberate policy of 'ethnic cleansing', itself a form of genocide. Towns and villages have been shelled. Thousands have been kept in camps in appalling circumstances. Torture and mass executions have been common.

In the Middle East, Saddam Hussein is accused of numerous acts of unspeakable cruelty, including genocide. There is a worldwide conviction that he ought to be apprehended, tried and, if found guilty, punished.

Punishment of war crimes is bound to look like 'victors' justice'. First, because war criminals are unlikely to be brought before a court unless the state they served has been defeated in war. The second reason is more subtle. The victors will naturally impose their own values. A tribunal set up by a coalition of powers led by the United States, for example, would brush aside any links between the crimes alleged against President Saddam and the sufferings of the Palestinians; Islamic countries might well find that hypocritical.

The moral authority of the Allies after 1945 was greatly diminished by the common knowledge that the Soviet Union, under Stalin, had committed crimes of genocide and mass murder, and by the fact that the British and the Americans had conducted the air war even more ruthlessly than the Germans and the Japanese.

One way to resolve that dilemma, while still ensuring that at least some crimes against international law are punished, would be to take the process out of the hands of the victors by setting up an international criminal court of justice. Lord Shawcross, the chief British prosecutor at the Nuremberg trials, moved the creation of such a court at the United Nations as long ago as 1948. He believes, moreover, that its scope should be wider than 'war crimes', reaching all those guilty of crimes against international law.

A substantial body of such law now exists. Since 1864, a series of Geneva conventions has established rules of warfare. They attempt to enforce standards of treatment for soldiers in the field, the wounded, civilians caught up in war, and for prisoners of war. In 1948 the United Nations General Assembly also outlawed genocide.

During the Second World War, as early as 1942, the Allies announced that, having won, they would punish war criminals. Many countries duly tried and executed or imprisoned those guilty of war crimes on their territory. Twelve German wartime leaders were tried before the International Military Tribunal and sentenced to death. Hermann Goering committed suicide; the rest were hanged on 16 October 1946. (More than 20 other Nazis responsible for atrocities were hanged after a later trial.) In November 1948 seven Japanese wartime leaders, including General Tojo, were sentenced to death by the International Military Tribunal for the Far East and hanged.

After that, however, public opinion turned against what looked like victors' justice. In the West, people were uncomfortably aware that horrendous crimes had not been confined to one side. And there was unease about the bombing of Nagasaki and Hiroshima.

Lord Shawcross is still arguing persuasively for the creation of an international criminal court. He has pressed the Prime Minister on the issue, though Mr Major's replies have been unenthusiastic. Specifically, Lord Shawcross would like to see a criminal chamber attached to the existing International Court of Justice in The Hague, the UN body with a role restricted mainly to settling border and treaty disputes between states.

The collapse of the Soviet Union does now seem to bring with it a new need, and a new opportunity, for punishing crimes against established international law. That is one of the things President George Bush was groping towards when he spoke of 'a new world order'. The need arises because of the apparent growth in regional conflict. The opportunity flows from the fall of the Soviet Union, which would once have blocked enforcement by almost automatically opposing whatever the United States and its allies did. Now, if the United Nations so decided, there could be prosecutions in Bosnia, for example. A corpus of international criminal law is there to be applied; an international court would broaden and refine that law.

To be sure, there would always be those who said that an international criminal court was imposing the justice of the victors. But if it was imposing the justice of the great majority of humanity against some great criminals in a way that was seen to be fair, and if some potential criminals were deterred, it could well afford to shrug off that complaint.