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"This study of the politics of war crimes tribunals discovers past cases that almost nobody had examined and covers in a lucid and provocative way more familiar recent examples. It is the best book on the subject, a humane plea for justice as the only alternative to unacceptable oblivion or vengeance, and a worthy addition to the company of brilliant first books."—Stanley Hoffmann, Harvard University
"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
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
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.