Tihomir Blaskic was brought into court in The Hague on June 24, 1997, flanked by two policemen wearing the baby-blue of the UN. An unexceptional dark man with wispy thinning black hair and gold glasses, dressed for the occasion in a gray civilian suit, Blaskic looked constantly grim. He did not change his expression as the morning wore on. He gave no hint of emotion, even when the prosecutor, a square-jawed American draped in a black robe, described the 1993 sack of Ahmici, a small, innocuous village in central Bosnia's Lasva Valley.
Blaskic had then been a colonel and the commander of the Bosnian Croat army's operations in central Bosnia. In April 1993, Dario Kordic, the young local Bosnian Croat leader, decided to take the Lasva Valley, a rugged area populated both by Muslims and Croats. Forces under Blaskic's command launched an assault on the Bosnian government's forces and the Muslim towns of the Lasva Valley. The rain of shells took a heavy toll on Muslim civilians. Men allegedly under Blaskic's command rounded up hundreds of Muslims who remained in the valley, and held them in makeshift facilities in Vitez and Busovaca. They forced the prisoners, hungry and thirsty, to dig trenches on confrontation lines or used them as human shields to deter the Bosnian government forces from striking back at the Croat forces. The atrocities in Ahmici, a mostly Muslim village, were the most notorious: its mosques and the homes of its Muslim inhabitants had been razed, and ninety-six civilians were killed.
But that was all a world away. Now Blaskic could only see Ahmiciwith its Muslim houses gutted, and Croatian nationalist graffiti spray-painted on a toppled Muslim minaretin stark black-and-white video images, filmed by a swooping camera that had been carried by a NATO helicopter. Blaskic's old headquarters at the Hotel Vitez, only about five kilometers from Ahmici and mere blocks away from what became a mass grave site, were also just pictures on the screens in a hushed and darkened courtroom on the other side of Europe. Instead, Blaskic was surrounded by the self-important trappings of a new effort at international justice.
The courtroom is in fact a rebuilt conference room, which until 1994 housed Dutch businesspeople working for Aegon, the insurance firm with which the tribunal was sharing its sprawling, shabby building on Churchillplein in the northern part of The Hague. The courtroom, which cost the UN about three million Dutch guilders, boasts ultramodern computer and video monitors, immediate computerized stenography, and simultaneous translation broadcast in three languages: English, French, and what used to be called Serbo-Croatian and is now prudently listed by the UN as "Bosnian, Croatian, Serbian." Visitors and the press are separated from Blaskic only by a pane of bulletproof glass. The courtroom is sleek and gleaming white, with baby-blue drapes and two big UN flags flanking the judges. They are robed in black and red, with faintly ridiculous white bibs in the Continental style; the attorneys wear simpler black robes, with the same bibs. The air is a riot of international accents: the presiding judge is French, his two colleagues are from Egypt and Guyana, the defense team are from Croatia and Los Angeles, and the prosecutors have American accents (one of them distinctly from New York). It is all built to impress. There was no sign that day that it had made any impact on Blaskic.
Nor were his superiors in Croatia any more impressed. Croatia was resisting the tribunal's attempts to subpoena its records on the Lasva Valley attacks, presumably fearing that such papers might implicate men of greater rank than Blaskic. Dario Kordic was still at large, widely assumed to be living comfortably in Zagreb. The mere fact that Blaskic was in court at all was an anomaly. On the day Blaskic walked into the dock, only eight out of seventy-five men publicly indicted by the tribunal were in custody. Blaskic was the only high-ranking one. Over three years after the UN set up the first international war crimes tribunal since World War II, all it had to show for it were these eight men: whiling away their days by playing chess, reading a spy novel by John Le Carré, and, in the case of a man who had brutalized prisoners at the Omarska concentration camp, doing a series of paintings for an exhibition in a London restaurant.
Most of what really mattered for the tribunal was going on far from the former insurance office in The Hague. The machinery of justice was here, still a bit creaky with its new duties, but, it was hoped, up to the task. What was missing, as the tribunal's staff constantly says, was the world's political will. The crucial decisions that had brought Blaskic to the dock had mostly been made elsewhere: by the member states of the UN Security Council when they created the Hague tribunal in 1993 but then kept it underfunded and understaffed; by ex-Yugoslav authorities as they flouted the tribunal's authority; by Britain and France as they limited the duties of their peacekeeping troops; by Russia as it interfered with the tribunal to shelter the Serbs; and above all by America, an inattentive superpower.
Those decisions had left the tribunal's staff grumbling that the West was not remotely serious about the work being done here. "We are not offering anywhere enough justice," said a tribunal staffer, recently back from Bosnia. "All the old grievances are still there." There was no triumphalism in The Hague, only a gnawing fear that the entire effort would prove pointless, or would discredit the Nuremberg legacy by failing.
This book is about idealism in international relations, and its sharp limits. It asks why some countries will sometimes be strikingly idealistic in the face of foreign wickedness, and at other times will cynically abandon the pursuit of justice. For those who were glad to see the likes of Blaskic on trial, the crucial question is: What makes governments support international war crimes tribunals? And, conversely: What makes governments abandon them? Those are the basic questions that this book will try to answer.
The answers, such as they are, are in patterns of politics from historical events that have largely been forgotten. The dominantand incorrectview of war crimes tribunals centers on Nuremberg as an almost unique moment. In fact, war crimes trials are a fairly regular part of international politics, with Nuremberg as only the most successful example. International war crimes tribunals are a recurring modern phenomenon, with discernible patterns. Today's debates about war criminals in Rwanda, Bosnia, and Kosovo are partial echoes of political disputes from 1815, 1918, and 1944.
There are at least seven major comparable times when states confronted issues of international justice: abortive treason trials of Bonapartists in 1815 after the Hundred Days; botched trials of German war criminals after World War I; an abortive prosecution of some of the Young Turk perpetrators of the Armenian genocide; the great trials of top German war criminals at Nuremberg after World War II; a parallel but less successful process for major Japanese war criminals at the Tokyo international military tribunal; the current ex-Yugoslavia tribunal; and a twin tribunal for Rwanda. There are even less well-known cases too. The United States set up war crimes trials after the Spanish-American War, as did Britain after the Boer War. After World War I, Yugoslavia pushed Bulgaria into trying some of its own. Indira Gandhi, India's premier, called for trials of Pakistanis accused of atrocities in Bangladesh in 1972. There was also some discussion in America of trials for North Koreans after the Korean War. The Bush administration threatened trials for Iraqi cruelty in Kuwait, and the Clinton administration is considering a tribunal for Iraq's so-called Anfal atrocities against the Kurds. The sudden capture of Pol Pot in the summer of 1997 prompted a chorus of calls for his trial; after his death, the UN is planning a tribunal for other Khmer Rouge leaders, with Cambodian and foreign judges. And in July 1998, a UN conference in Rome approved a plan for a permanent international criminal court (ICC) to judge war crimes and crimes against humanity.
This book is a systematic and comparative account of the politics of international war crimes tribunals. It is meant to be part of a growing debate about reconciliation and reconstruction after political violence, whether after democratization at home or war abroad. But unlike cases like South Africa and Chile, where heated arguments about justice and forgiveness and truth take place within one country, the war crimes tribunals in this book are all international. They rely on foreign political will and on military force. They carry special dangers of nationalist backlash caused by Western arroganceand, perhaps, special opportunities to impose justice.
Why support a war crimes tribunal? The treatment of humbled or defeated enemy leaders and war criminals can make the difference between war and peace. If the job is done well, as after World War II, it may lay the foundation for a durable peacetime order; if botched, as when Napoleon was exiled to Elba, it may spark a new outbreak of war.
Still, if one wants to get rid of undesirables, using the trappings of a domestic courtroom is a distinctly awkward way to do it. Sustaining a tribunal means surrendering control of the outcome to a set of unwieldy rules designed for other occasions, and to a group of rule-obsessed lawyers. These lawyers have a way of washing their hands of responsibility for the political consequences of their own legal proceedings. "It's a political decision as to whether you should execute these people without trial, release them without trial, or try them and decide at the end of the trial what to do," said Robert Jackson, the U.S. Supreme Court justice who served as America's chief prosecutor at Nuremberg. "That decision was made by the President, and I was asked to run the legal end of the prosecution. So I'm not really in a position to say whether it's the wisest thing to do or not." Did Richard Goldstone, the first chief prosecutor of the ex-Yugoslavia tribunal, worry about the consequences to the Bosnian peace process of indicting Radovan Karadzic and Ratko Mladic, the wartime political and military leaders of the Bosnian Serbs? "But it was really done as, if you like, as an academic exercise," Goldstone says. "Because our duty was clear." That kind of professional detachment may make sense to lawyers; it is bizarre to diplomats.
There are easier ways to punish vanquished enemies. Victorious leaders have come up with an impressive array of nonlegalist fates for their defeated foes. One could shoot them on sight. One could round them up and shoot them en masse later. One could have a perfunctory show trial and then shoot them. One could put them in concentration camps. One could (as both Winston Churchill and Franklin Roosevelt suggested) castrate them. One could deport them to a neutral country, or perhaps a quiet island somewhere. Or one could simply ignore their sordid past and do business with them. Of all things, why bother to go to the trouble of a bona fide trial, with the possibility of acquittals, of cases being thrown out on technicalities, of embarrassing evidence and irritating delays, of uncooperative judges, of a vigorous defense? After World War I, one of the reasons why efforts to punish German and Ottoman war criminals failed was that the Allies found they could not get convictions in the respective courts. Why give up direct state control to independent lawyers?
There is a flip side to these questions, too, which is just as puzzling. American diplomats had no great enthusiasm for the prosecution of Balkan war criminals. Some of these men, like Mladic, have powerful domestic followings. Arrests could spark violence, or turn Bosnian Serb sentiment even more bitterly against NATO. And the Hague tribunal has a way of reminding the world of the savage habits of men like Slobodan Milosevic (indicted in 1999 by Louise Arbour, Goldstone's successor) and Franjo Tudjman, who have often been deemed essential to America's plans for a stable region. Despite that, America has offered grudging support to the tribunal since its creation. Why take the risk?
The core argument of this bookfleshed out in this chapter and running throughout the historical chaptersis that some leaders do so because they, and their countries, are in the grip of a principled idea. There is nothing structural that necessitates the adoption of this idea. A tribunal is not necessarily part of a punitive peace, nor of a generous one. Nevertheless, some decision makers believe that it is right for war criminals to be put on triala belief that I will call, for brevity's sake, legalism.
There are strict limits to the influence of legalism. Above all, legalism is a concept that seems only to spring from a particular kind of liberal domestic polity. After all, a war crimes tribunal is an extension of the rule of law from the domestic sphere to the international sphere. Although illiberal or totalitarian states accustomed to running domestic show trials might try to do the same at the international level, the serious pursuit of international justice rests on principled legalist beliefs held by only a few liberal governments. Liberal governments sometimes pursue war crimes trials; illiberal ones never have.
Still, the power of legalist ideas alone is not wholly sufficient as an explanation, because nonrhetorical calls for international justice are fitful. Why is it right at some times for some states, and not at other times for other states? If principled ideas are so important to foreign policy, why do states so often fail to live up to those ideas? These questions lead to the two other major arguments of this book. First, even liberal states almost never put their own soldiers at risk in order to bring war criminals to book. Second, even liberal states are more likely to seek justice for war crimes committed against their own citizens, not against innocent foreigners. These two arguments are flip sides of a common coin: the selfishness of states, even of liberal ones. We put our own citizens firstby an amazing degree. The war crimes policy of liberal states is a push-and-pull of idealism and selfishness.
Idealism in International Relations
Tojo Hideki had few doubts about the true character of the Allies' international military tribunal at Tokyo. In December 1948, he said, "In the last analysis, this trial was a political trial. It was only victors' justice." When Nuremberg's prison psychiatrist asked Hermann Göring to sign a copy of Göring's own indictment as a unique souvenir, the former Reichsmarschall could not resist editorializing: "The victor will always be the judge, and the vanquished the accused." Wilhelm II, hiding in Holland after World War I, scorned Allied efforts to bring him to book: "[A] tribunal where the enemy would be judge and party would not be an organ of the law but an instrument of political tyranny aiming only at justifying my condemnation." Zeljko Raznatovic, the indicted Serb paramilitary leader better known as Arkan, once said, "I will go to a war-crimes tribunal when Americans are tried for Hiroshima, Nagasaki, Vietnam, Cambodia, Panama!" Even the victors sometimes make this argument. "I suppose if I had lost the war, I would have been tried as a war criminal," said Curtis LeMay, who targeted some sixty-three Japanese cities for annihilation by American bombing in World War II. "Fortunately, we were on the winning side."
It is perhaps not surprising that these men felt this way. What is striking is the extent to which their skepticism is reflected in typical good-faith beliefs about war crimes tribunals today. Even Immanuel Kant unhappily admitted that, in the state of war, "where no tribunal empowered to make judgments supported by the power of law exists," judgment would rest on power: "neither party can be declared an unjust enemy (since this already presupposes a judgment of right) and the outcome of the conflict (as if it were a so-called `judgment of God') determines the side on which justice lies." The frequently expressed argument that war crimes tribunals are simply victors' justice has deep roots. As Thrasymachus says in Plato's Republic, "[E]verywhere justice is the same thing, the advantage of the stronger."
The Thrasymachus tradition in the study of international relations is usually called realism. Realiststhe dominant thinkers in America and Britain since at least 1945argue that international relations differ from domestic politics in the lack of a common ruler among self-interested states. To survive in such conditions of anarchy, states must rely on self-help for their own security; they become, in the great sociologist Raymond Aron's vivid phrase, "cold-blooded monsters." In the dangerous brawl of international anarchy, realists argue, idealistic and legalistic policies are a luxury that states can ill afford. In his classic history of the Peloponnesian War, Thucydides has Cleon, a cruel Athenian, say:
Our business, therefore, is not to injure ourselves by acting like a judge who strictly examines a criminal; instead we should be looking for a method by which, employing moderation in our punishments, we can in future secure for ourselves the full use of those cities which bring us important contributions. And we should recognize that the proper basis of our security is in good administration rather than in the fear of legal penalties.
Thus to realists, international moralizing in generaland punishing war criminals in particularis mystifying. Writing on the eve of World War II, E. H. Carr insisted that "politics are not (as utopians pretend) a function of ethics, but ethics of politics." Contemptuous of "utopianism," Carr scorned efforts to blame Wilhelm II for World War I.
In a sweeping book that lavishes attention on the Krüger telegram and the Fashoda crisis, Henry Kissinger does not even mention Nuremberg. In 1954, the British historian A.J.P. Taylor asked, "Who cares now whether William II and Berchtold were `war-criminals'?" Later, under fire for praising Munich, Taylor dug himself in further: "In international affairs there was nothing wrong with Hitler except that he was a German." Underlying this apology for Nazi Germany was Taylor's incomprehension of the application of moral standards to diplomacy: "I have never seen any sense in the question of war guilt or war innocence. In a world of sovereign states, each does the best it can for its own interest; and can be criticised at most for mistakes, not for crimes." Taylor even suggested that moralizing only made wars more vicious: "Bismarck's planned wars killed thousands; the just wars of the twentieth century have killed millions."
Other realists quibble less with the notion of punishment than with the use of legal methods. George Kennan, the American diplomat who created the cold war doctrine of containment, warned, "I see the most serious fault of our past policy formulation to lie in something I might call the legalistic-moralistic approach to international problems." And some realists simply cannot be bothered with legal niceties. Kennan preferred summary execution for Nazi leaders. And at the end of World War II, Hans Morgenthau, the father of American realism, said, "I am doubtful of the whole setup under which these [Nuremberg] trials will be conducted. What, in my opinion, they should have done is to set up summary courts-martial. Then they should have placed these criminals on trial before them within 24 hours after they were caught, sentenced them to death, and shot them in the morning."
Realists often fear that war crimes tribunals will interfere with the establishment of international order. Carrying the hatreds and moral passions of war over into a peace settlement is dangerous. Kissinger admired the Congress of Vienna's generous treatment of France after the Napoleonic Wars: "A war without an enemy is inconceivable; a peace built on the myth of an enemy is an armistice. It is the temptation of war to punish; it is the task of policy to construct. Power can sit in judgment, but statesmanship must look to the future." Overheated moral judgments and particularly "personal retribution," Kissinger implied, risk undermining a peace.
The most recent updating of realism, in the twilight of the cold war, maintains these themes. Such neorealism argues that in an anarchic international system, unitary states facing potential threats from tous azimuts will attempt to maximize either power or security. The result will be a balance of power. As Kenneth Waltz put it in the founding book of neorealism, "Self-help is necessarily the principle of action in an anarchic order." The states in Waltz's system are all essentially alike, behaving the same abroad regardless of how they run their domestic politics: "[S]o long as anarchy endures, states remain like units."
Like Taylor and Kissinger, Waltz hopes that removing overheated moral debates from the international arena will have a pacifying effect: "If might decides, then bloody struggles over right can more easily be avoided." And he is skeptical about injecting justice into international politics: "Nationally, the force of a government is exercised in the name of right and justice. Internationally, the force of a state is employed for the sake of its own protection and advantage," He is equally wary of international law: "National politics is the realm of authority, of administration, and of law. International politics is the realm of power, of struggle, and of accommodation. The international realm is preeminently a political one." Law, to Waltz, is the antithesis of the anarchic international system.
These neorealists take a dim view of international legalism. International norms and institutions are epiphenomenal, mere veils over state power. As John Mearsheimer, a realist political scientist, puts it, "Realists maintain that institutions are basically a reflection of the distribution of power in the world. They are based on the self-interested calculations of the great powers, and they have no independent effect on state behavior." To realists, a war crimes tribunal is simply something that the countries that decisively win a war inflict on the helpless country that loses it. It is punishment, revenge, spectacleanything but justice.
It is hard not to be impressed with the force of much of the realist line of argument. Kennan, sensibly, recoiled at the notion of a Soviet judge sitting at Nuremberg despite the Soviet Union's own complicity, aggressions, and atrocities. When the Ottoman Empire was defeated, it faced war crimes trials; when Atatürk drove Britain and Greece back, the new peace treaty dropped those demands. Criminals such as Stalin, Mao, and Pol Pot never faced justice from Western states appalled at their atrocities because they had not been militarily defeated first.
Realism also deflates much of the high-flown rhetoric of victorious states as self-serving. Throughout this book, states abandon lofty projects of international justice when that endangers their soldiers. Finally, realism provides a welcome corrective against the occasionally otherworldly musings of some international lawyers. To make rabbit stew, first catch a rabbit.
So why not adopt a realist approach? I will argue that war crimes tribunals are more than just vehicles for the crude application of power. There is no way of determining what will be done to accused war criminals without reference to ideas drawn from domestic politics. In particular, there are five main anomalies that confound realism.
First, critically, there is a distinctive legalism to the notion of war crimes tribunals. These efforts are not simply disguised purges, although they often do have the result of getting rid of undesirable enemy leaders. The victors were not just trying to dispose of enemies; they were aiming at men they saw as criminals. The documentary record clearly shows that the motivations for the trials at Leipzig, Constantinople, Nuremberg, Tokyo, The Hague, and Arusha were not merely to purge. Victorious liberals saw their foes as war criminals deserving of just punishment. Realists would either be baffled by this or deplore it.
After all, one hardly needs trials to dispose of accused war criminals. Why not just shoot them? If one considers such a brutal solution to be out of the question, that only a barbarian state would do such a thing, that only testifies to the extent to which legalism has permeated our political culture. Even liberal countries have been tempted to skip trials. Lloyd George swept to victory in the 1918 elections with his supporters chanting, "Hang the kaiser!" At the Québec Conference, Churchill and Roosevelt agreed to the Morgenthau Plan, which envisioned the summary execution of the Nazi leadership (they later reconsidered). Muhamed Sacirbey, Bosnia's UN ambassador and a former foreign minister, pointedly remembers this: "[A]fter World War II, before Nuremberg, the British and Russian view of Nuremberg was that we don't need a trial: let's just take them out in the back and shoot them." More recently, Gérard Prunier, a respected scholar of the Rwandan genocide, singled out "maybe 100 men who have committed not only a crime against humanity but a sin against the Spirit by locking up a whole nation into the airless sadomasochistic inferno. They have to die."
Even some people who are otherwise dedicated to the rule of law believe that some atrocities go beyond the realm of law. The application of municipal law to war crimes is in many ways the legal equivalent of a bad analogy. The worst crimes in Western law are utterly pallid next to crimes against humanity. A war crimes trial applies an old precedent to deeds that are a universe away from the conditions that created that precedent. As Robert Penn Warren's fictional demagogue Willie Stark put it,
I know a lot of law.... But I'm not a lawyer. That's why I can see what the law is like. It's like a single-bed blanket on a double bed and three folks in the bed and a cold night. There ain't ever enough blanket to cover the case, no matter how much pulling and hauling, and someone is always going to nigh catch pneumonia. Hell, the law is like the pants you bought last year and the seams are popped and the shankbone's to the breeze. The law is always too short and too tight for growing humankind.
There is no such thing as appropriate punishment for the massacres at Srebrenica or Djakovica; only the depth of our legalist ideology makes it seem so. Watching the unfolding spectacle at Nuremberg, political theorist Hannah Arendt wrote, "For these crimes, no punishment is severe enough. It may well be essential to hang Göring, but it is totally inadequate. That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems. That is the reason why the Nazis in Nuremberg are so smug." This is no theoretical abstraction. Anthony Eden, the British foreign secretary, made the same point in 1942: "The guilt of such individuals is so black that they fall outside and go beyond the scope of any judicial process." Today, who could really say it would be totally unjust to shoot thugs like Théoneste Bagosora or Ratko Mladic?
War crimes tribunals risk the acquittals of history's bloodiest killers in order to apply legal norms that were, after all, designed for lesser crimes. The Allied efforts to punish German and Turkish war criminals after World War I ended in fiasco, in large part because of the law. The British high commissioner in Constantinople complained, for instance, that a top Ottoman official was surely morally and criminally guilty, but that without "definite proof against him," he might escape justice. Eden worried, "[T]he precedent of public trials of prominent statesmen shows that the procedure is rarely advantageous to the prosecution." Nuremberg had its acquittals, and the court red-facedly dismissed a case against Krupp because the British thought they were trying Gustav Krupp (père) while the Americans were aiming for Alfried Krupp (fils). Of 1,409 Japanese defendants tried in American courts after World War II, only 163 were sentenced to death. Dusan Tadic, the first person to stand trial in The Hague, was initially acquitted on seven murder charges, and the judges dismissed 11 of 31 charges against him on the grounds that he could not have violated the Geneva Conventions because the war in Bosnia was not an international onea vindication for Serbia. And when Augusto Pinochet's cruelty was brought before Britain's Law Lords, they at one point ruled that he could be extradited only for crimes committed after December 1988, when Britain implemented the Torture Convention at homeletting Pinochet off the hook for all but the last fifteen months of his seventeen years of dictatorship. British authorities later ruled Pinochet too ill to stand trial. Why risk this kind of thing? The only sturdy answer to these questions is the power of the legalistic norm.
Second, it seems that some norms of domestic politics occasionally spill over into the international realm. After all, states do not only try defeated enemies; sometimes they try their own soldiers and leaders. Edmund Burke, while a member of Parliament in Britain, impeached Warren Hastings, the corrupt former governor general of Bengal, on twenty-two charges of high crimes and misdemeanors; Hastings was dramatically tried in the House of Lords in 1788-95. In October 1956, an Israeli patrol massacred forty-three Israeli Arab villagers of Kfar Qassem, who had unwittingly violated a curfew imposed for the Suez War; after public outcry, the Israeli soldiers were tried by a military court and jailed, although the sentences were later shortened. The United States half-heartedly put a handful of its own soldiers on trial after the My Lai massacre, although only one was ever convicted (and Richard Nixon helped get his sentence reduced to a mere three years). In 1982, Menachem Begin's government was hounded from power after an Israeli judicial committee concluded that Begin and Ariel Sharon, his defense minister, bore indirect responsibility for the Sabra and Shatila massacres. These cases can hardly be said to be victors' justice. Rather, they suggest that a country's norms can be so sincerely held that it will put its own soldiers and leaders on trial even in times of national upheaval.
Third, sometimes states pursue justice for victims who are not citizens of the victor states. British sympathy for the Armenians in 1915 and after was quite sincere. Even if Henry Stimson, the American secretary of war who was the architect of Nuremberg, took no great interest in the Holocaust, the administration was pressured to take account of the extermination of the Jews by Henry Morgenthau Jr., the treasury secretary, and by American Jews. Lackadaisical as the Clinton administration's response to the slaughters in Bosnia and Rwanda was, America did ultimately push for the establishment of international tribunals for these horrors. It is hard to find a NATO interest in Kosovo except humanitarianism. This is hardly a triumph of idealism, but it is not the complete absence of it either.
Fourth, war crimes tribunals seem to make an impact even in the absence of a military victorysuggesting that norms may have a certain independent power even when not fully backed up by states. To be sure, the Hague tribunal, forced to rely on the whims of NATO countries for its enforcement, lacks the scope and comprehensiveness of Nuremberg. But the tribunal has had an impact on Balkan diplomacy. During the NATO war over Kosovo, The Hague indicted Milosevic and other top Yugoslav leaders. Goldstone's indictment of Karadzic and Mladic, at a minimum, made it embarrassing to do business with them. Since then, American diplomats have been progressively more insistent on the need to punish indicted war criminals. For an underfunded international institution that until recently shared its office space with a Dutch insurance firm, the Hague tribunal has made a clear difference.
Similarly, the UN criminal tribunal for Rwanda is not easily explained as victors' justice. In Rwanda there was both a victory and an attempt at international justice, with the latter set up mostly to mitigate the excesses of the former. In 1994, over half a million people, mostly Tutsi, were killed by Hutu extremists. After that genocide, the Tutsi-dominated Rwandan Patriotic Front's guerrillas took back the capital city of Kigali and put tens of thousands of suspected Hum génocidaires in appalling jails. The UN court is distinct from the Rwandan regime's own prosecutions, which aim at low-level perpetrators while leaving more important figures to the UN's jurisdiction. The UN tribunal was established partly because of dissatisfaction with the quality of justice likely to be dispensed by the overburdened, penniless, and understandably vengeful Rwandan regime.
Fifth, critically, not all victors' justice is the same. Göring's argument was not just that he was in the dock because he lost the war. He also implicitly argued that Allied leaders would too be in the dock if they had lost instead, and that therefore there was nothing to recommend the Allied brand of justice over the Nazi one. This argument has somehow found a certain amount of public currency. Oddly, although there are precious few people who would be indifferent if asked to choose between standing trial in a Soviet domestic court or an American one, there are plenty who think that there is not much difference between an international Soviet or American tribunal. Aron, hardly an unclear thinker, wrote: "It is easy to imagine the use that the victorious Reich would have made of its right to punish the `criminal' states (Poland, France, Great Britain)." Had the Nazis won, there is no reason to believe they would have set up a bona fide war crimes tribunaleven for acts like the fire-bombing of Dresden, which could easily be considered a war crime. The Nazis might have set up a show trial, but it is wildly unlikely that they would have created anything more impartial. Nazi domestic courts were heavily rigged toward political persecution. It seems safe to assume that the Nazis would have been equally as cynical in their use of the courts after a victory in World War II as they were after their victory in German domestic politics. There is in fact an empirical example of what a totalitarian state might have done as a victor in World War II: the Soviet Union's heavy-handed attitude toward Nuremberg and Tokyo.
Nor is it difficult to tell a show trial from a truly legalistic one. A bona fide trial includes an independent judiciary, the possibility of acquittal, some kind of civil procedure, and some kind of proportionality in sentencing. As D. B. Somervell, the British attorney general, put it in 1944, "A trial involves a charge or charges for offences against some law, a decision on evidence, arguments on each side, and, if the accused is found guilty, the imposition by the Court of a penalty." "The modern view of criminal justice, broadly," wrote Max Weber, "is that public concern with morality or expediency decrees expiation for the violation of a norm; this concern finds expression in the infliction of punishment on the evil doer by agents of the state, the evil doer, however, enjoying the protection of a regular procedure." In contrast, a show trial has no chance of returning an acquittal, keeps the judges in thrall to the prosecution and behind that the state, cares little for procedure or standards of evidence, and has a propensity toward the quick execution. In 1946, Vyacheslav Molotov, the Soviet foreign minister, explained to shocked Western officials what awaited sixteen Polish underground leaders in Soviet custody: "The guilty ones will be tried."
For all these reasons, the phrase "victors' justice" is in the end a largely uninformative one. The kind of justice one gets depends on the nature of the conquering state. The question is not whether we are looking at victors' justice. Probably. But which victor? And what justice?
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