Law and war: a doctrine of deterrence.

• Author: D'Amato, Anthony

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

- Universal Declaration of Human Rights, Article 10

The United Nations Security Council, it can be argued, enforce the "laws of war" when there is a geographically limited war not involving superpowers. No one who works at the International Criminal Tribunal for the former Yugoslavia, in The Hague, would entertain the thought that there is no such thing as war crimes. However, defendants may have some doubts. My client, Milan Kovacevic, who passed away a few months ago, when his trial was in its second week was indicted for complicity in genocide, war crimes and crimes against humanity - a relatively new category, including the crimes of persecution and forcible deportation of persons.

He told me that these alleged "crimes" were trumped up by a kangaroo court.

I replied that regardless of what he thought about the validity or invalidity of the charges against him, this Tribunal has the power to convict him, sentence him to life imprisonment, and enforce that sentence. So I asked him to suspend his disbelief for the time being. We'll make more progress in his case, I said, if we proceed under the assumption that all the charges against him are legally valid. "Why should we?" he asked. Because the law, I replied, is the only thing standing between him and a life sentence. His only chance for acquittal is to work within the "language" of international law. Not only do the judges understand this language, not only are they sympathetic to arguments couched in its terms, but they will likely take offence if you use any other language (such as "revolutionary" language defying the court and challenging its right to decide your case).

At the trial of the major war criminals in Nuremberg, 19 out of 22 defendants were convicted of crimes against peace, war crimes and crimes against humanity. The three who were acquitted - Schacht, von Papen and Fritzsche - won their cases because they were able to use the language of international law to show that the laws of war did not apply to their specific conduct during the Second World War.

When the Allied Powers were setting up the Nuremberg Tribunal, the Soviet representative argued against such proceedings. In his view, all the Nazi leaders should be shot by a firing squad.

The three acquitted defendants owed...