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Stay the Hand of Vengeance: The Politics of War Crimes Tribunals

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Overview

International justice has become a crucial part of the ongoing political debates about the future of shattered societies like Bosnia, Kosovo, Rwanda, Cambodia, and Chile. Why do our governments sometimes display such striking idealism in the face of war crimes and atrocities abroad, and at other times cynically abandon the pursuit of international justice altogether? Why today does justice seem so slow to come for war crimes victims in the Balkans? In this book, Gary Bass offers an unprecedented look at the politics behind international war crimes tribunals, combining analysis with investigative reporting and a broad historical perspective. The Nuremberg trials powerfully demonstrated how effective war crimes tribunals can be. But there have been many other important tribunals that have not been as successful, and which have been largely left out of today's debates about international justice. This timely book brings them in, using primary documents to examine the aftermath of the Napoleonic Wars, World War I, the Armenian genocide, World War II, and the recent wars in the former Yugoslavia.

Bass explains that bringing war criminals to justice can be a military ordeal, a source of endless legal frustration, as well as a diplomatic nightmare. The book takes readers behind the scenes to see vividly how leaders like David Lloyd George, Winston Churchill, Franklin Roosevelt, and Bill Clinton have wrestled with these agonizing moral dilemmas. The book asks how law and international politics interact, and how power can be made to serve the cause of justice.

Bass brings new archival research to bear on such events as the prosecution of the Armenian genocide, presenting surprising episodes that add to the historical record. His sections on the former Yugoslavia tell—with important new discoveries—the secret story of the politicking behind the prosecution of war crimes in Bosnia, drawing on interviews with senior White House officials, key diplomats, and chief prosecutors at the war crimes tribunal for the former Yugoslavia. Bass concludes that despite the obstacles, legalistic justice for war criminals is nonetheless worth pursuing. His arguments will interest anyone concerned about human rights and the pursuit of idealism in international politics.

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Editorial Reviews

From Barnes & Noble
Stay the Hand of Vengeance is a scrupulous history of Western war crimes tribunals over the last two centuries. It ranges widely, from the Napoleonic Wars to Rwanda and the Balkans. Author Gary Jonathan Bass teaches international politics at Princeton University. A former correspondent for The Economist, Bass has reported at length on the Balkans conflicts. This brilliant first book, based on reporting and archival research, argues that liberalism's moral and legal imperatives advocate the vigorous pursuit and punishment of war criminals. Unfailingly lucid and elegantly written, this volume will be a benchmark reference for a generation.
New York Review of Books
One of the most valuable books to appear about doing justice. . .
— Aryeh Neier
Foreign Affairs
The best work yet on the politics of justice after war. This historically rich, theoretically informed study explores both celebrated and little known chapters in history, from St. Helena to The Hague. . . .
— G. John Ikenberry
History
[An] impressive book. . . The author, using a wide range of original archive sources and covering some material about which little has been written about in the past, examines in a meticulous, scholarly fashion the approach the victors took towards Napoleon, the kaiser, the Turks after the First World War, and the Nazis.
— Mark Allinson
Booklist
Why do even liberal states demand war crimes tribunals in some situations and not others? What political factors explain why some war criminals are vigorously pursued and prosecuted, while others are largely ignored? These are the kinds of questions that Bass's history seeks to answer.
Salon.com
[A]n exhaustive and magisterial survey that chronicles the complexities of such proceedings from Napoleon through Rwanda.
— Jesse Berrett
Choice
Combining the investigative skills of the journalist and the scholarship of the political scientist, Bass offers an unprecedented book on the politics of war crimes tribunals . . . This is a timely and compelling book. . .
International History Review
A solid, lively, and readable contribution to the politics of international criminal justice.
— Antonio Cassese
New York Law Journal
The book could not be more timely.
— David Propson
NationalJournal.com
A comprehensive account of how modern society handles war criminals. . . . As America wrestles with international judicial questions, Bass' account of how the dynamics of tribunals have changed throughout the past two centuries is relevant reading indeed.
— Meg Kinnard
Journal of Slavic Military Studies
Stay the Hand of Vengeance is a well researched and convincing book. Gary Jonathan Bass argues that war crimes tribunals, though tugged in various directions by the political forces of 'realism' and 'idealism' are in fact best understood not by grand sweeping models of political behavior but by a clear-headed investigation of the conditions under which they arise and proceed.
— Joshua Sanborn
American Political Science Review
This excellent book is a worthwhile acquisition for anyone and any library, but it is an essential one for those concerned with international law, international organization, and war crimes. Bass combines the best of his scholarly political science training with his experience as a former correspondent with The Economist.
— Arthur W. Blaser
The New Yorker
Why war-crimes tribunals? In this dense and compelling account, which examines trials from St. Helena to The Hague, Bass, a professor at Princeton, makes a realist's case for idealism and a pessimist's case for perseverance.
The New York Times Book Review
[C]ompelling. . . . [A] timely and exhaustive survey of how political leaders have wrestled with the problem of war criminals since 1815. . . . Bass . . . argues convincingly that trying war criminals is a better option than its alternative: revenge. . . . [An] important reminder . . . that . . . governments, including our own, must keep step by prosecuting war criminals.
— Chuck Sudetic
The Economist
[A]n intriguing tale, and one told with flair by Gary Jonathan Bass. . . . Mr Bass's book could not be better timed. . . . Mr Bass's compelling account of earlier attempts to apply law in the aftermath of armed conflicts offers a useful historical setting for the current debates about a permanent court. . . . [I]nternational legalism, after a century of the failures and false starts recounted so well by Mr Bass, may after all be about to come of age.
— David Manasian
The Sunday Telegraph
[A] major new study of the history of these tribunals. . . . [F]ascinating. . . . [A] masterly study of the international politicking surrounding the war crimes tribunal for the former Yugoslavia. . . . Written with enviable lightness of touch, but fortified with a mass of serious scholarship in the notes, this is a model study of a complex subject. Its . . . argument is dispassionately made, and highly persuasive. A copy of this book should be sent forthwith to Mr Kostunica in Belgrade.
— Noel Malcolm
The American Interest
[An] invaluable book.
— Barry Gewen
The Washington Post Book World
[A] well-researched and stimulating book. . . .
— Michael Lind
The Virginia Quarterly
Bass has done extensive research as well as investigative reporting in fashioning an unusual book.
The Weekly Standard
[An] important and engrossing book: Bass's scholarship will challenge widely divergent views about war crimes tribunals.
— Amit Agarwal
The New York Times Book Review - Chuck Sudetic
[C]ompelling. . . . [A] timely and exhaustive survey of how political leaders have wrestled with the problem of war criminals since 1815. . . . Bass . . . argues convincingly that trying war criminals is a better option than its alternative: revenge. . . . [An] important reminder . . . that . . . governments, including our own, must keep step by prosecuting war criminals.
New York Review of Books - Aryeh Neier
One of the most valuable books to appear about doing justice. . .
The Economist - David Manasian
[A]n intriguing tale, and one told with flair by Gary Jonathan Bass. . . . Mr Bass's book could not be better timed. . . . Mr Bass's compelling account of earlier attempts to apply law in the aftermath of armed conflicts offers a useful historical setting for the current debates about a permanent court. . . . [I]nternational legalism, after a century of the failures and false starts recounted so well by Mr Bass, may after all be about to come of age.
The Sunday Telegraph - Noel Malcolm
[A] major new study of the history of these tribunals. . . . [F]ascinating. . . . [A] masterly study of the international politicking surrounding the war crimes tribunal for the former Yugoslavia. . . . Written with enviable lightness of touch, but fortified with a mass of serious scholarship in the notes, this is a model study of a complex subject. Its . . . argument is dispassionately made, and highly persuasive. A copy of this book should be sent forthwith to Mr Kostunica in Belgrade.
Foreign Affairs - G. John Ikenberry
The best work yet on the politics of justice after war. This historically rich, theoretically informed study explores both celebrated and little known chapters in history, from St. Helena to The Hague. . . .
The American Interest - Barry Gewen
[An] invaluable book.
History - Mark Allinson
[An] impressive book. . . The author, using a wide range of original archive sources and covering some material about which little has been written about in the past, examines in a meticulous, scholarly fashion the approach the victors took towards Napoleon, the kaiser, the Turks after the First World War, and the Nazis.
The Washington Post Book World - Michael Lind
[A] well-researched and stimulating book. . . .
Salon.com - Jesse Berrett
[A]n exhaustive and magisterial survey that chronicles the complexities of such proceedings from Napoleon through Rwanda.
The Weekly Standard - Amit Agarwal
[An] important and engrossing book: Bass's scholarship will challenge widely divergent views about war crimes tribunals.
International History Review - Antonio Cassese
A solid, lively, and readable contribution to the politics of international criminal justice.
New York Law Journal - David Propson
The book could not be more timely.
NationalJournal.com - Meg Kinnard
A comprehensive account of how modern society handles war criminals. . . . As America wrestles with international judicial questions, Bass' account of how the dynamics of tribunals have changed throughout the past two centuries is relevant reading indeed.
Journal of Slavic Military Studies - Joshua Sanborn
Stay the Hand of Vengeance is a well researched and convincing book. Gary Jonathan Bass argues that war crimes tribunals, though tugged in various directions by the political forces of 'realism' and 'idealism' are in fact best understood not by grand sweeping models of political behavior but by a clear-headed investigation of the conditions under which they arise and proceed.
American Political Science Review - Arthur W. Blaser
This excellent book is a worthwhile acquisition for anyone and any library, but it is an essential one for those concerned with international law, international organization, and war crimes. Bass combines the best of his scholarly political science training with his experience as a former correspondent with The Economist.
From the Publisher
Honorable Mention for the 2000 Award for Best Professional/Scholarly Book in Government and Political Science, Association of American Publishers

"Why war-crimes tribunals? In this dense and compelling account, which examines trials from St. Helena to The Hague, Bass, a professor at Princeton, makes a realist's case for idealism and a pessimist's case for perseverance."The New Yorker

"[C]ompelling. . . . [A] timely and exhaustive survey of how political leaders have wrestled with the problem of war criminals since 1815. . . . Bass . . . argues convincingly that trying war criminals is a better option than its alternative: revenge. . . . [An] important reminder . . . that . . . governments, including our own, must keep step by prosecuting war criminals."—Chuck Sudetic, The New York Times Book Review

"One of the most valuable books to appear about doing justice. . ."—Aryeh Neier, New York Review of Books

"[An] impressive scholarly work. . . . Balanced and thorough. . . . "Publishers Weekly

"[A]n intriguing tale, and one told with flair by Gary Jonathan Bass. . . . Mr Bass's book could not be better timed. . . . Mr Bass's compelling account of earlier attempts to apply law in the aftermath of armed conflicts offers a useful historical setting for the current debates about a permanent court. . . . [I]nternational legalism, after a century of the failures and false starts recounted so well by Mr Bass, may after all be about to come of age."—David Manasian, The Economist

"[A] major new study of the history of these tribunals. . . . [F]ascinating. . . . [A] masterly study of the international politicking surrounding the war crimes tribunal for the former Yugoslavia. . . . Written with enviable lightness of touch, but fortified with a mass of serious scholarship in the notes, this is a model study of a complex subject. Its . . . argument is dispassionately made, and highly persuasive. A copy of this book should be sent forthwith to Mr Kostunica in Belgrade."—Noel Malcolm, The Sunday Telegraph

"The best work yet on the politics of justice after war. This historically rich, theoretically informed study explores both celebrated and little known chapters in history, from St. Helena to The Hague. . . ."—G. John Ikenberry, Foreign Affairs

"[An] invaluable book."—Barry Gewen, The American Interest

"[An] impressive book. . . The author, using a wide range of original archive sources and covering some material about which little has been written about in the past, examines in a meticulous, scholarly fashion the approach the victors took towards Napoleon, the kaiser, the Turks after the First World War, and the Nazis."—Mark Allinson, History

"[A] well-researched and stimulating book. . . ."—Michael Lind, The Washington Post Book World

"Why do even liberal states demand war crimes tribunals in some situations and not others? What political factors explain why some war criminals are vigorously pursued and prosecuted, while others are largely ignored? These are the kinds of questions that Bass's history seeks to answer."Booklist

"Employing detailed research and compelling arguments, Bass offers timely and convincing evidence that international war tribunals provide a viable process by which human rights can be upheld throughout the international community."Kirkus Reviews

"[A]n exhaustive and magisterial survey that chronicles the complexities of such proceedings from Napoleon through Rwanda."—Jesse Berrett, Salon.com

"Combining the investigative skills of the journalist and the scholarship of the political scientist, Bass offers an unprecedented book on the politics of war crimes tribunals . . . This is a timely and compelling book. . ."Choice

"Bass has done extensive research as well as investigative reporting in fashioning an unusual book."The Virginia Quarterly

"[An] important and engrossing book: Bass's scholarship will challenge widely divergent views about war crimes tribunals."—Amit Agarwal, The Weekly Standard

"A solid, lively, and readable contribution to the politics of international criminal justice."—Antonio Cassese, International History Review

"The book could not be more timely."—David Propson, New York Law Journal

"A comprehensive account of how modern society handles war criminals. . . . As America wrestles with international judicial questions, Bass' account of how the dynamics of tribunals have changed throughout the past two centuries is relevant reading indeed."—Meg Kinnard, NationalJournal.com

"Stay the Hand of Vengeance is a well researched and convincing book. Gary Jonathan Bass argues that war crimes tribunals, though tugged in various directions by the political forces of 'realism' and 'idealism' are in fact best understood not by grand sweeping models of political behavior but by a clear-headed investigation of the conditions under which they arise and proceed."—Joshua Sanborn, Journal of Slavic Military Studies

"This excellent book is a worthwhile acquisition for anyone and any library, but it is an essential one for those concerned with international law, international organization, and war crimes. Bass combines the best of his scholarly political science training with his experience as a former correspondent with The Economist."—Arthur W. Blaser, American Political Science Review

David Manasian
And yet, argues Mr Bass on behalf of the opposing, "legalist" view, liberal states do feel constrained by their own highest rules and values, and have repeatedly tried to export them, often against the odds, as the history of war-crimes tribunals amply shows. Despite what realists claim, law and morality are genuine forces in world affairs.
Economist
Aryeh Neier
One of the most valuable books to appear about doing justice is Gary Bass's Stay the Hand of Vengeance. It tells the story of some previous war crimes trials that have been largely or completely forgotten.
New York Review of Books
Amit Agarwal
Bass's scholarship will challenge widely divergent views about war crimes tribunals.
Weekly Standard
Publishers Weekly - Publisher's Weekly
One of the major accomplishments of this impressive scholarly work is to deflate the myth that attempts to stage war crime trials began at the end of WWII. As Bass, a former reporter who now teaches politics and international affairs at Princeton, explains, the Nuremberg trials represent just part of a debate about the legality and effectiveness of endeavors to hold such tribunals, which began at the end of WWI and continues today. Bass judiciously takes a journey through the efforts to hold such trials--from Britain's attempt to try Kaiser Wilhelm II in 1919 to NATO's attempts to try those responsible for atrocities in the Balkans. Despite Bass's obvious support for the trials and what he calls "legalism"--liberal nations extending domestic laws to the international sphere--he admits that the Nuremberg trials were the only successful venture to try in a court of law those accused of wartime atrocities. And even he says that what took place at Nuremberg, while "extraordinary," was not perfect, just "far better than anything else that has been done at the end of a major war." Even there, he allows, Britain and the United States were motivated more by a desire for retribution for what was done to their soldiers during the war than by a desire for justice regarding the Holocaust and other atrocities against civilians. The same "selfishness," Bass contends, continues to condemn more recent attempts to bring wartime scofflaws to justice. Balanced and thorough, this book ends on a note of mixed optimism with regard to the future of war crimes tribunals. Do they work? Bass asks. "The only serious answer," he continues, "is: compared to what?" (Oct.) Copyright 2000 Cahners Business Information.
New Yorker
Why war-crimes tribunals? In this dense and compelling account, which examines trials from St. Helena to The Hague, Bass, a professor at Princeton, makes a realist's case for idealism and a pessimist's case for perserverance.
Chuck Sudetic
A timely and exhaustive survey of how political leaders have wrestled with the problem of war criminals since 1815 . . . Bass argues convincingly that trying war criminals is a better option than its alternative: vengeance . . .
New York Times Book Review
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Product Details

Read an Excerpt

STRONG>THE MAKING OF A CONSERVATIVE Bobby Kennedy was my first political hero; his legend helped shape my early social conscience. Before heading off to college, I looked forward to serving as an intern at the Robert F. Kennedy Memorial Foundation in Washington, D.C., which was dedicated to continuing RFK's work. The year was 1980, and the country was at an ideological crossroads in the presidential election between Democratic President Jimmy Carter, who had defeated Senator Edward Kennedy in a bitterly contested primary battle, and Carter's conservative challenger, Ronald Reagan, the former governor of California. In Washington, I worked out of a charming old town house with polished pinewood floors for a man named David Hackett, a close friend of Bobby Kennedy's who had worked in the Kennedy Justice Department in the 1960s. A man in his late fifties, with a lean, athletic build and the endearing air of an absentminded professor, Hackett possessed both the brimming idealism of the Kennedy clan and the Kennedy swagger. He zoomed into work each day in a plum-colored Fiat Spider. Working comfortably with a group of fellow aspiring journalists and liberal public policy advocates from around the country, I was assigned to one of the foundation's projects, the Student Press Service, a youth-run newswire that dispatched reports from the nation's capital on federal policy dealing with young people--financial aid, child welfare, bilingual education, youth employment, national service--to subscribing high school and college newspapers. I had been living in Washington only a few months when I cast my first vote, for Jimmy Carter, who lost his bid for reelection. With the Reagan administration now in power, the mood at the foundation turned grim. Many of the government programs we advocated were in peril; the Student Press Service reported sympathetically on Democratic efforts to save them. "Budget Plans May Hurt School Desegregation Efforts," read one headline. "Voting Act Extension Causes Controversy," warned another. The cover story for a press service report in late April 1981 was an exposé by me on the Ku Klux Klan Youth Corps--a "segregated Boy Scouts" that was conducting "paramilitary youth camps" throughout the South and West in the early months of the Reagan era. Working the phones and tapping out copy, we were following a liberal political line, which conformed to a view of journalism I had come to in high school, after reading Upton Sinclair's 1906 novel The Jungle, a muckraking exposé on the abysmal working conditions in Chicago's meat-packing industry. Journalism was a forum to agitate for social justice. I took these concerns with me to Berkeley, California, where I enrolled as a freshman in the fall of 1981. I had chosen the University of California at Berkeley specifically because of its long tradition of liberal political activism, beginning with the famed Free Speech Movement of 1964 and culminating in protests against the war in Vietnam in the early 1970s. Yet my first year on the Berkeley campus was not at all what I had anticipated. Rather than a liberal bastion of intellectual tolerance and academic freedom, the campus was--though the phrase hadn't yet been coined--politically correct, sometimes stiflingly so. Many on the faculty, having come of age in the 1960s, adhered to a doctrinaire leftism to which I had never been exposed. Though it is a blunt overgeneralization, the sociology department seemed to me to be filled with socialists, the philosophy department with devotees of Michel Foucault's relativistic deconstructionism. History tended to be taught from the perspective of New Left revisionists, who blamed the Cold War on the United States. In English literature, the Western canon, composed of "dead white European males," was out of fashion. The politically correct culture was even more ubiquitous in the surrounding left-wing city of Berkeley--some called it Berzerkeley--where many of the sandal-clad 1960s campus activists had settled and were now running fiefdoms like the Rent Control Board. The evils of Reagan's anti-Communist policies in Central America, the campaign to establish a Third World College on campus--these were the subjects of endless rants over lattes at Café Roma. As the arms race with the Soviet Union escalated under Reagan, the nuclear weapons labs run by the university in Livermore and Los Alamos were a rallying point for sometimes-violent student protests. Researchers there were branded "fascists." I decorated my dorm room with postcards portraying the Reagans as victims of a nuclear holocaust, but something felt wrong. In my sophomore year, as a cub reporter for the Daily Californian, the student-run newspaper that was widely read both on the sprawling Berkeley campus and in the city, one of the first assignments that I drew, quite by chance, was to cover a campus speech by Jeane Kirkpatrick, Ronald Reagan's United Nations ambassador and an architect of his hard-line anti-Communist policies in El Salvador and Nicaragua, which countenanced human rights violations throughout the region by our anti-Communist allies. An acerbic, schoolmarmish neoconservative Democrat and former university professor, Kirkpatrick had been invited to deliver the Jefferson Lectures, a distinguished annual series on the history of American political values. As with nearly every campus event in Berkeley, a protest was announced in leaflets that had been stapled onto bulletin boards in the main plaza. When I arrived at the auditorium at the appointed hour, the expected conga line of sign-holding protesters had not materialized. Berkeley's lecture halls were cavernous, and on this warm day in early fall Dwinelle Hall was filled to capacity. I walked into the hushed room and took a seat up front near the platform. Opening my reporter's notebook, I was set to jot down the details of what I expected to be a rather dry academic address. Kirkpatrick was introduced by the mild-mannered Berkeley law school dean, and she approached the podium with a clutch of papers in a hand that looked more like a bird's claw. No sooner had she begun speaking than several dozen protesters, clad in black sheets with white skeletons painted on them, bolted from their seats, repeatedly shouting, "U.S. Out of El Salvador," and "Forty Thousand Dead," a reference to political assassinations by death squads linked to the U.S.-backed Salvadoran military junta. Kirkpatrick stopped speaking, waiting patiently for the din to die down; but as soon as she uttered another word, the chanting commenced, and it grew louder and louder with each recitation. As an exasperated Kirkpatrick pivoted toward the law school dean for assistance, a protester leaped from his seat just offstage and splashed simulated blood on the podium. After several more attempts to be heard with no help from the hapless dean, Kirkpatrick curled her lip, turned on her heels, and surrendered to the mob. The scene shook me deeply: Was the harassment of an unpopular speaker the legacy of the Berkeley-campus Free Speech Movement, when students demanded the right to canvass for any and all political causes on the campus's Sproul Plaza? Wasn't free speech a liberal value? How, I wondered, could this thought police call itself liberal? As I raced back to the threadbare offices of the Daily Cal, where we tapped out stories on half-sheets of paper hunched over manual typewriters, my adrenaline was pumping. I knew I had the day's lead story. For the rest of the academic year, a controversy raged in the faculty senate and within the board of regents, where several of former Governor Reagan's appointees still sat, over whether the campus administration should have done more to secure Kirkpatrick's ability to speak freely. The few outspoken conservatives on the faculty, and the Reagan regents, raised their voices in support of Kirkpatrick's free speech rights. The liberals seemed to me to be defending censorship. Later that year, I declared a major in history with an emphasis on European and American diplomacy. Repelled by the Berkeley left, especially in the months following the Kirkpatrick incident, I gravitated toward the few conservatives on the faculty who had taken up the cudgels against the anti-Kirkpatrick protesters. Through my studies, including seminars with Walter McDougall, a young, mustachioed foreign policy hawk and occasional contributor to conservative intellectual William F. Buckley's National Review, I formed some early ideas about the need for vigilant American defense policies, and under his tutelage I developed a strong anti-Communist viewpoint. Outside the classroom, my political education consisted of devouring copies of Norman Podhoretz's Commentary, the leading monthly magazine of the ex-liberals known as neoconservatives. I stumbled upon an issue of Commentary on a library reading rack and charged off into the stacks of Moffitt Library, where I read back issues for days. Like Podhoretz's famous piece "The Present Danger," Commentary specialized in alarming essays on the Soviet threat, some of them by Kirkpatrick herself. The intellectual vigor and fiery polemics appealed to me more than the foppish, Anglophilic bent of National Review or the American Spectator, the other leading conservative magazines of the day. Commentary seemed to speak to everything I was learning in class at that young age--the need for a strong military was so plain, if you studied history--and also to everything that troubled me about Berkeley's political extremism. I couldn't get enough. I loved writing for the Daily Cal, and I thrived there as a reporter, fitting in easily with the brainy newspaper crowd. In my junior year, I was elected by the staff to a top-level news-editing post. I won election because I had worked hard breaking stories, including a series of investigative articles proving that a university vice president had misappropriated university resources to benefit a private company he ran on the side. The articles forced his resignation. I was a respected reporter on the staff, and as an aspiring young journalist exposing corruption, I was gratified to win my first scalp. With my new post came a seat on the paper's editorial board and the opportunity to write signed op-ed columns. For some weeks, the editorial page editor had been after me to contribute a column for the paper's international opinion page. The October 1983 U.S. invasion of Grenada, where American forces overthrew a Marxist-leaning regime, seemed like an obvious chance to hone my polemical skills. Inspired by a McDougall seminar on "just war" theory, and a bracing op-ed in the New York Times by right-wing columnist William Safire, I sat in Café Roma and scribbled out in longhand a ringing endorsement of the "liberation" of Grenada from the Soviet sphere of influence that steamrolled over legitimate arguments against the invasion. To me, the column was an academic exercise; I hadn't realized that it would be received in Berkeley as a political thunderclap. While I wasn't knowingly playing the part of provocateur, when the column was published on a Monday morning, all hell broke loose. By the early 1980s, most of the thirty-thousand-plus Berkeley student body had no interest in carrying on the scruffy activist traditions of the 1960s. They were tall and blond and from places like Orange County and had keg parties at their frats. Or they were the studious children of immigrants, devoted to their engineering books. While most students seemed unconcerned with events in Grenada, the military operation was deeply unpopular with Berkeley's small but very vocal population of activists, who saw it as an example of rapacious American imperialism and had taken to the streets with flag-burning protests. My column stoked the flames of the local fires, and I rather unintentionally became the focus for the protesters' rage. The main opposition to my column came from some lefty faculty members, like Charlie Schultze, the award-winning chemist who was always protesting at the Livermore weapons lab, and the city of Berkeley's political establishment--Mayor Gus Newport, an avowed socialist, and liberal Democratic Congressman Ron Dellums, whose staff had close relations with Maurice Bishop's ousted Grenadan regime. There was opposition, too, within the Daily Cal, an off-campus cooperative run independently of the university, led by the general manager, Marty Rabkin, one of those '60s types who had come to Berkeley and never left. "How could you?" an indignant Marty said to me in his office as we watched the desecration of the American flag in the streets below. How could I? I wasn't the one burning the flag. Though critics, including Rabkin, were outraged by what they saw as the grave injustices of U.S. foreign policy in Grenada, I didn't see their point of view, just as I had been unable to credit the position of the anti-Kirkpatrick demonstrators, who believed that her policies condoned murder. All I understood was that I was being targeted in a campaign by the left to recall me from my post as editor for speaking my mind. I remember rushing by, feeling vulnerable and turning my face away in embarrassment, as huge rolls of brown paper petitions against me were unfurled on Sproul Plaza. To me, liberals were flatly and unapologetically advocating censorship of opinions they considered illegitimate and immoral, a rerun of the Kirkpatrick incident. The argument went: An editor at a newspaper with a 150-year progressive tradition should not be allowed to publish such obscene views. I was branded a warmonger, a fascist, and worse. I was determined to stand my ground and fight, all the more so because, as I saw it, the fight was not about Grenada, but about the First Amendment. Viewing it this way, as a moral rather than an ideological struggle, I became as self-righteous and rigid as my critics, who in my eyes were not just wrong but un-American. I survived the threatened recall only on a technicality. The bylaws governing the cooperative had no provision for removing editors, and they could be amended only at the end of the academic year when new editors were elected. Continuing on as editor, I accepted and even embraced the controversy I incited, willfully doing everything I could to enhance my outsider status. I baited my liberal adversaries, publishing a diatribe against a board of regents proposal to strengthen affirmative action programs. Meanwhile, every editorial decision I made was seen by many on the staff as motivated by an evil right-wing plot. Being an outspoken conservative in Berkeley got me noticed, which I relished. I imagined myself as David against the liberal Goliath. By the end of my junior year, I had become both a hated--and, I'm sorry to say, something of a hateful--figure in the newsroom. I demonized my enemies on the staff, led by a bubbly blond from Pasadena and a brooding Hispanic fellow, both of whom I openly and wrongly scorned as witless affirmative action hires. I was also caught in an embarrassing lie. A small cadre of loyalists had stuck by me through the Grenada controversy. As a way of building up my power base, when a problem arose in a story one of them had written after it was published, I sought to tarnish the reputation of one of my foes, who had edited the piece. I told the editor in chief that the vice chancellor had called to complain about the story. She immediately called the university official and found out the truth: He hadn't called. When the editor confronted me about the lie, I froze, speechless, and walked away. Soon enough, everyone in the newsroom knew I had lied. Though my poor cadre knew about my lie and voted for me anyway, I lost overwhelmingly in my campaign to be elected editor in chief. For good measure, the bylaws were amended to provide for the removal of editors on a majority vote of the staff: the Brock Amendment. Though my discomfort with the extremist elements in Berkeley was understandable and in some ways valid, it was distorted by an emotional overreaction to the Grenada controversy. Like most political arguments in college, the episode had a distinctly personal edge. Rather than settling in some reasonable middle ground between left and right, my feelings of persecution caused me to swing to the right. To hold myself together during the campaign to recall me, I dug in my heels, assumed a warlike posture, and closed my mind and my heart to all things left and liberal for good. Moreover, I now viewed politics as a knife fight, my critics as blood enemies. My still-nascent ideological commitments acquired a vengeful overlay: I'll get them. At the same time, I was able to find comfort--a sense of belonging and a measure of stature--in the sectarian right-wing Berkeley campus underground that rose up to defend and embrace me. In addition to historian Walter McDougall, there was the witty political scientist Paul Seabury, whose lectures were sometimes protested because he was a member of Reagan's Foreign Intelligence Advisory Board. The bald, bespectacled Seabury was a smoker, and after class I would sit with him as he indulged himself and told me of his political journey from left to right, in reaction to the radical anti-Americanism and what he called "the fascistic style" of the 1960s left. I also became a research assistant to Aaron Wildavsky, a renowned neoconservative social theorist, on his book The Beleaguered Presidency, in which he argued that the Democrats were becoming "a party that delegitimized the nation's second-largest constituency--white, working, Christian males." I romanticized these faculty conservatives as stalwart defenders of constitutional protections, civility, and tolerance, never once wondering if they might have jumped into the fray to defend Jeane Kirkpatrick and me for ideological reasons. With McDougall, Seabury, and Wildavsky taking me under their wings, happy to have a bright new recruit with a sharp pen in the cause, I settled comfortably into conservatism. I fell easily under the spell of my surrogate father figures, as though anyone who gave me attention could dictate my beliefs. From them I found the moral and ideological clarity, the critical affirmation and acceptance, and the firm sense of who I was that my fragile psyche yearned for. I slapped the label of the entire conservative movement on my lapel, gave it authority over my being, without even understanding what it meant. Stumbling into a fight over Grenada at the age of twenty, I came out of it playing the role of right-wing ideologue--right-wing robot, really--to the hilt. I jumped on a conservative trajectory that would cause me to live my life along a certain but wrong course for the next fifteen years.
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Table of Contents

List of Abbreviations ix
Chapter One: Introduction 3
Chapter Two: St. Helena 37
Chapter Three: Leipzig 58
Chapter Four: Constantinople 106
Chapter Five: Nuremberg 147
Chapter Six: The Hague 206
Chapter Seven: Conclusion 276
Chapter Eight: Epilogue 284
Acknowledgments 311
Notes 313
Index 389

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Introduction

Introduction 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 Ahmici-with its Muslim houses gutted, and Croatian nationalist graffitispray-painted on a toppled Muslim minaret-in 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 dominant-and incorrect-view 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 arrogance-and, 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 book-fleshed out in this chapter and running throughout the historical chapters-is 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 trial-a 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 first-by an amazing degree. The war crimes policy of liberal states is a push-and-pull of idealism and selfishness. Idealism in International Relations Victors' Justice 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. Realists-the dominant thinkers in America and Britain since at least 1945-argue 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 general-and punishing war criminals in particular-is 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, spectacle-anything 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 one-a 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 home-letting 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 victory-suggesting 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 tribunal-even 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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Interviews & Essays

Gary Jonathan Bass is an assistant professor of politics and international affairs at Princeton University. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, published by Princeton University Press, is his first book. Professor Bass and Barnes & Noble.com's Academic & Scholarly editor Gregory Tietjen conducted this interview via email in mid-October 2000.

Barnes & Noble.com: Professor Bass, your book's acknowledgments and footnotes make clear that you count yourself in debt to Judith Shklar's liberalism. After decades of teaching political philosophy at Harvard, Professor Shklar died in 1992. But to students of political theory and government who didn't attend Harvard, her commanding presence there remains somewhat enigmatic. Most of us have encountered her voice solely in the pages of her publications. Were you her student? If so, could you tell us something about her manner of teaching in the classroom? And could you address, too, the key ways in which you see her influence at work in Stay the Hand of Vengeance?

Gary Jonathan Bass: Yes, I'm hugely in her debt. But no, I wasn't her student, which was one of the bigger mistakes that I made in college. I met her very briefly twice and found her extremely smart and extremely intimidating. Her presence is very much missed.

As for her influence on my book, she wrote a magnificent book called Legalism, which I love to teach to grad students at Princeton, in which she hardheadedly weighed the merits of the Nuremberg trials, as well as other political trials. Professor Shklar believed in a liberalism without any illusions that the world was free of cruelty. Unlike a lot of human rights advocates (and she was fiercely devoted to individual rights), she refused to have illusions about Nuremberg. She understood that it was a trial made in America and was largely about outlawing war, a project that she thought was futile, rather than about prosecuting Germans for the Holocaust, a project that she thought might stabilize West German democracy by driving home to the Federal Republic's legal-minded elites the wickedness that Germans had committed. She didn't see Nuremberg as progress; she thought it was ridiculous to go through the calamity of World War II and then say that justice had been served since some of the Nazis got prosecuted. And she understood that "justice is a policy," that choosing law means choosing a set of political priorities. I happen to like a lot of those political priorities, but her writings always make you aware of the risk of mindlessly substituting legal remedies for hard political thinking.

B&N.com: The commitment to legalism, to the rule of law, is itself a profound political commitment. Can the pursuit of justice through war crimes tribunals, then, ever be less than controversial? Do the demands for justice require that we pursue justice even when prudent consideration for the likely political consequences -- which you describe as the conflict between liberal ideals and cruder self-interest -- recommends that we take another course? You allow, after all, that the goals of diplomacy will often be in conflict with the ambitions of the law.

GJB: Yes, and when that happens, states -- even liberal states like America and Britain -- tend to pursue their selfish interests. Throughout the book, you see a remarkable insistence on protecting the lives of Western soldiers, even when that means letting war crimes prosecutions fall apart. Here's one particularly stark example. Mustafa Kemal Atatürk, the great Turkish nationalist leader, took a couple of British soldiers hostage and used them to pressure Britain into freeing a bunch of prominent Turkish leaders in British custody, many of them charged with playing leading roles in the Armenian genocide of 1915. What I find fascinating, though, is that in liberal states we feel this tension between selfishness and idealism: we know we should follow principle in our foreign policy, and we sometimes do. There are some remarkably sincere moralists in this book, from David Lloyd George to Henry Morgenthau Jr. to Madeleine Albright, as well as some rather remarkable cynics. The moralists aren't always wise or prudent, but they have to be taken into account. Digging through the archives, and reporting about the Clinton administration, I was captivated by the arguments between the moralists and the realists.

B&N.com: Your argument suggests that legalism is the formal face of liberalism's desire for justice. That liberal aspiration advances the claims for universal human rights. But the concept of a right appears to presuppose the existence of socially established rules. And those rules are at home in certain social settings and are sustained by certain institutional forms. To a remarkable degree, those social settings and institutional forms are prevalent in Britain and the United States. Is there a tension between the philosophical claims that liberals make on behalf of universal rights and the rather recent provenance of those rights within the political cultures of Europe and North America? And if the tension exists, should it worry liberals?

GJB: Sure. American power can look awfully hypocritical overseas, and that hardly helps this country push a human rights agenda. As for whether rights must rest on particular social and institutional foundations, that's a large and fascinating question. (One great essay: Shklar's "The Liberalism of Fear," which can be found in Liberalism Without Illusions, edited by Bernard Yack.) For the purposes of my book, though, it's sufficient to believe that Armenians and Jews and Bosnians and Rwandan Tutsis -- and I don't mean to imply that all their suffering was the same, because it's hugely important to remember precisely and without blurring -- all had rights, and that when those rights were nightmarishly violated, that liberal states had a duty to try to restore those rights or mete out some kind of justice to the killers.

B&N.com: You quote Judge Richard Goldstone and Judith Shklar in support of the belief that the Nuremberg trials' unique and enduring legacy was in establishing the precedent of "crimes against humanity." In retrospect, the Nuremberg trials loom as a triumph of liberal legalism. The trials witnessed -- despite the grudging participation of the Soviet Union and serious disagreements among the Allies -- a successful application of the domestic political norms of the liberal powers to international affairs. Today, however, after acknowledging the existence of an international legal forum at The Hague, critics might argue that evidence is slight that the Nuremberg precedent inaugurated a moral and legal force to be reckoned with. Do you disagree?

GJB: I don't see war crimes tribunals as particularly great monuments to our successes, but as signs of our failures. If we had managed to stop Nazi Germany in 1933, we wouldn't have had to bother with Nuremberg; if we had managed to stop Milosevic's Serbia (not that it's morally equivalent to Nazi Germany) in 1991, we wouldn't have had to bother with The Hague. Indeed, some of the reason why the West set up the ex-Yugoslavia war crimes tribunal was because we weren't prepared to use force to stop the killing in Bosnia: We would prosecute the war crimes that we refused to prevent. The good news, though, is that I think we're developing a slightly more sophisticated vision of what international law ought to be, focusing less on criminalizing war (as the Allies tried to do after both World War I and World War II) than on prosecuting crimes against humanity.

B&N.com: When his father died after decades of hiding in South America, Rolfe Mengele, the son of the infamous Nazi doctor Josef Mengele, who presided over the selections inside the gates of Auschwitz, reported that his father once had offered the chilling comment that in life "there are no judges, only avengers." What rejoinder should liberals make to the hard cynicism that justice is the privilege of the victors in war?

GJB: This is an argument that war criminals find irresistible and I find rather bogus. Hermann Göring made the same self-serving argument while he was on trial at Nuremberg. But the fact that Nuremberg was victors' justice doesn't mean that it wasn't justice. Compared to the other options on the table -- shooting the Nazi leadership (as Henry Morgenthau Jr., Franklin Roosevelt's Treasury secretary, wanted to do) or having a show trial (as Stalin evidently wanted to do) -- the Allies chose a remarkable measure of self-restraint. Rather than doing things the easy way, they bound themselves with real trials: complete with a vigorous defense, judgment based on evidence, an independent judiciary, risks of acquittals (there were some), and so on. All law, including domestic law, rests on some amount of "victory": at the domestic level, it's the victory of the state -- a monopoly of legitimate coercive power, in Weber's classic definition. What's remarkable is the restraint. Had the war been won by the fascists, our leaders would hardly have gotten the kind of fair trial that the Nazis got at Nuremberg.

B&N.com: The stunning recent developments in Belgrade following Vojislav Kostunica's defeat of Slobodan Milosevic at the polls and Milosevic's abdication of office have raised hopes that Milosovic might ultimately be made to answer at The Hague, after all, for the crimes against the Kosovars and Bosnians. Kostunica insists he won't force Milosevic to surrender to the NATO powers. (It's even possible that Kostunica's fragile electoral alliance, to which hopes of reuniting the Serbs with Europe are joined, wouldn't survive if Kostunica were to reverse his stand.) How do you appraise the situation? What scenario would you wish to see realized?

GJB: First of all, Milosevic isn't the only indicted war criminal in Yugoslavia. There's also the defense minister, the Serbian president, three senior Yugoslav army officers, and Ratko Mladic, the wartime Bosnian Serb military chief who led the massacre of 7,000 Bosnian Muslim men at Srebrenica in 1995 -- the worst atrocity in Europe since World War II. Plus God knows how many war criminals there are in Yugoslavia who haven't been indicted by The Hague but have plenty of Bosnian and Kosovar blood on their hands.

As for whether Kostunica will turn over Milosevic and Milutinovic and Mladic and the rest, he's been unequivocal: Kostunica, himself a Serb nationalist, sees The Hague as just an instrument of American power, and he refuses to send Milosevic there. America and Western Europe have been more or less content to let that issue slide, fearing that too much noise about Milosevic right now could derail Yugoslavia's transition to democracy. Justice is important, but democracy is important too. But given the suddenness of Milosevic's collapse, I wonder if Kostunica shouldn't be seizing this moment to really pursue Milosevic. If Yugoslavia is really going to rejoin the civilized world, then the country is going to have to learn some new political habits. A trial of Milosevic might help.

B&N.com: To turn to academic work in political philosophy today and in the humanities generally: Do you find it curious that much of the work that has claimed our attention in recent years has judged liberalism so harshly? Do these attacks testify to liberalism's basic and continuing vitality? Or do they hint that serious and even crippling flaws have been exposed in liberal thought?

GJB: I study international politics, and the irony is that among people like me, the danger is more a kind of liberal triumphalism. My colleague George Kateb, who's as committed a liberal as they come, likes to warn me and the other international politics professors about that. But for now, at least, I think liberalism is dominant, and justifiably so. After last century's nightmares, there's no real alternative to human rights.

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