One of the ongoing challenges to international criminal law is the issue of ‘balance’ in prosecutions, sometimes called the 'flipside' cases. From Bosnia to Rwanda to Sierra Leone to Uganda, there are calls to prosecute the ‘other side’, and criticisms of prosecutions that appear to make political choices in targeting alleged offenders. The classic response is that international human rights (and humanitarian) law is concerned with the jus in bello, which applies regardless of whether the cause was or was not just. In my view, this issue remains unresolved, and it does not lend itself to simplistic solutions. The proposition that prosecution for international atrocity crimes must be neutral and indifferent strikes me as profoundly unsatisfactory.
As an example, consider the Nuremberg trial, which some critics label ‘victors’ justice’. We may well ask, however, about the historic legacy of post-World War II justice had it attempted to prosecute crimes committed on all sides, even-handedly. Should, for example, Jewish partisans who struggled valiantly with the limited means at their disposal to resist genocide have been punished for war crimes on the same basis as their Nazi tormentors? I had thought the question a hypothetical one, and indeed a rhetorical device demonstrating the perverse consequences of what some call even-handed justice. Apparently my example has an air of reality. Haaretz reports on investigations in Lithuania into a massacre allegedly perpetrated by Jewish partisans in 1944: http://www.haaretz.com/hasen/spages/1000086.html. More than 200,000 Jews were murdered in Lithuania under the Nazi regime, approximately 90% of what was one of Europe’s most dynamic and vibrant Jewish communities.According to Haaretz, the focus of the investigation is Yitzhak Arad, former chairman of of the Yad Vashem holocaust museum in Jerusalem. ‘Arad was appointed in 2005 by Lithuania's president to a high-level commission examining past war crimes. As a part of his work, Arad drew the ire of right-wing groups when he publicly asked that the country address the role of Lithuanians in the murder of Jews during the Holocaust. After a number of attacks on Arad in right-wing Lithuanian newspapers, Lithuania's chief prosecutor opened a pretrial investigation of Arad's wartime actions in Kaniukai. A Polish institute had earlier found that 38 people in the town were killed in 1944 by a Soviet anti-Nazi unit consisting of 120 to 150 people, including both Jews and non-Jews. In June 2007, Israel was formally asked to question Arad - a request that Israel declined. Since then, Lithuanian authorities also have questioned two women: Fania Branstovsky, a former partisan and now a librarian at the Vilnius Yiddish Institute, and Rachel Margolis, who wrote a memoir about her experiences in the resistance.’Arad was quoted in Forward as saying: ‘The murderers are now becoming national heroes, and we, the few surviving victims who took up arms and fought the murderers, are under investigation as criminals.’