A LOOK AT. . . War Crimes and Punishment
IT'S A RISKY BUSINESS. What can we gain by prosecuting Serbia's Milosevic and other wartime killers?; Tribunals Are Flawed, but Not Futile
By Gary J. Bass
Sunday, November 26, 2000; Page B03
Even at the height of his power and influence, Slobodan Milosevic hated the idea of war crimes indictments for Serbian atrocities. In a 1995 meeting with American officials, he went out of his way to ask them to postpone a decision on whether indicted war criminals could hold high office in Bosnia. "In the house of a man just hanged," he said, "don't talk about rope."
Today, the rope--in the form of a trial before the International Criminal Tribunal for the Former Yugoslavia in The Hague--is dangling before Milosevic's own eyes. And the question is: How hard should the West try to get Yugoslavia's former ruler in the dock?
Over the past century, diplomats have wrestled with the issue of what to do with war criminals. The case for international justice is not just a legal one but a political one, and the politics have often been appallingly messy. Much as someone like Milosevic deserves to be punished, the 20th century's experience with war crimes trials suggests that they pose real political risks. There is a powerful argument to be made for them in the end, but that argument must take into account the limitations and pitfalls of international justice. Ultimately, war crimes trials are the right choice not because they are too morally pure to be questioned, but because they are the least bad of a number of bad choices before us. We should reject the only alternatives--summary execution or ignoring the atrocities.
There are reasons to be skeptical of war crimes tribunals. The democratic world's desire to bring the orchestrators of wartime savagery to justice by legal means actually says more about us than it does about the criminals. It may be that the likes of Milosevic do not really deserve the benefit of a trial, since no punishment can actually fit their crimes.
In domestic law, we weigh different gradations of criminality: manslaughter, second-degree murder, first-degree murder, etc. But how can such scrupulous standards be properly applied to the massive slaughters that have wracked the Balkans? There is no such thing as truly appropriate punishment for something as hideous as the Srebrenica massacre, in which Serbian forces killed some 7,000 Bosnian Muslim men. As political theorist Hannah Arendt wrote of the Nazi war criminals at the Nuremberg trials: "For these crimes, no punishment is severe enough. . . . this guilt . . . oversteps and shatters any and all legal systems."
Extending due process to mass killers also opens up the risk of acquitting butchers who richly deserve punishment, but who have managed to hide the relevant evidence--or kill or terrify the witnesses. After World War I, there were two series of war crimes trials--one in Leipzig for Germans, and one in Constantinople for Turks who led the 1915 massacre of Armenians. Both were failures, ending in only a handful of minor convictions, because the Allies could not meet proper legal standards of evidence and responsibility. In 1919, the British high commissioner in Constantinople complained that a prominent Turk "was undoubtedly deeply implicated in the crimes of which he is accused . . . . There is, however, a lack of definite proof against him, and it will probably be a matter of considerable difficulty to prove his individual responsibility."
The sheer scale of genocidal crimes--requiring thousands upon thousands of killers--can overwhelm almost any judicial system. Milosevic, after all, did not act alone. But what tribunal could hope to punish all the guilty? Gerard Prunier, a French scholar and expert on Rwanda, estimates that there were between 80,000 and 100,000 murderers in the 1994 Rwandan genocide. Daniel Jonah Goldhagen, author of "Hitler's Willing Executioners," estimates that there were at least 100,000 perpetrators of the Holocaust. But by 1948, according to the American chief prosecutor at Nuremberg, only 3,500 Germans had been tried.
Finally, tribunals can be politically risky. After World War I, German and Turkish backlash against Allied-imposed war crimes trials proved destabilizing. As the Ottoman Empire spiraled into civil war, Britain's efforts to punish Turkish war criminals became a particularly sore point. In 1921, Mustafa Kemal Ataturk, the great Turkish nationalist, demanded and got the release of war crimes suspects in British custody (in exchange for a handful of British soldiers). Many Germans, left and right, resented British and French demands for trials of Kaiser Wilhelm II and others. In a grotesque irony, Hermann Goering--who would end up as the most prominent Nazi suspect at Nuremberg--first crossed paths with Adolf Hitler at a 1922 right-wing protest of WWI war crimes trials.
The alternatives to trial, however, are worse. The idea of summary execution of alleged war criminals has a long and undistinguished history. In 1943, at the Tehran Conference, Joseph Stalin proposed shooting 50,000 to 100,000 German military men. The Soviet dictator was playing true to form, but even democratic states can be sorely tempted to dispense with legalistic mechanisms and punish war criminals the easy way.
In 1944, Henry Morgenthau Jr., Franklin D. Roosevelt's influential treasury secretary, pushed hard for the summary execution of as many as 2,500 leading Nazi war criminals. Winston Churchill preferred the idea of shooting the top 50 to 100 Axis war criminals within six hours of capture. Cooler heads prevailed, chief among them U.S. War Secretary Henry Stimson, who insisted that the punishment of the Nazi leaders reflect "at least the rudimentary aspects of the Bill of Rights." If there's a risk that war crimes trials will prompt a nationalist backlash, that risk is likely doubled by unrestrained summary executions.
Ignoring war crimes is an equally unappealing option. The victims, above all, may not want to "forgive and forget." The international community may be able to shrug at the suffering of the Bosnians or Rwandans, but we can't expect them to do the same. Perhaps the most chilling example of the consequences of expecting victims to forget is what happened upon the collapse of the Constantinople war crimes tribunal. When Britain freed its Turkish prisoners in the Ataturk exchange, determined Armenian assassins took over. In 1921, Talaat Pasha, one of the masterminds of the Armenian slaughter, was gunned down on a Berlin street by a young Armenian, while the Turkish grand vizier at the time of the genocide, Said Halim Pasha, was killed by an Armenian in Rome.
Some of the same passions are alive in the Balkans and Rwanda today. After the Rwandan genocide, many of the Hutu Power genocidaires fled to Congo, where the Tutsi-led Rwandan government has pursued them. This cross-border warfare--a legacy of the genocide--has helped spark the massive war that now engulfs Congo. In Yugoslavia, lingering Kosovar Albanian bitterness at Serbian war crimes is one of the biggest impediments to the United Nations' plans for a multiethnic Kosovo.
Both Bosnia and Rwanda are running their own war crimes trials, alongside the two respective U.N. tribunals that handle the most prominent suspects. But Rwanda's courts are overwhelmed by the vast number of suspects; as many as 130,000 people sit in jail and most may never make it to court. Some of Bosnia's efforts have sparked crises, like the 1996 incident in which the Bosnian government infuriated Serbian nationalists by apprehending Djordje Djukic, a Bosnian Serb Army general; the crisis abated only after Djukic was flown to The Hague (where he was indicted, but released just before dying of cancer). The Hague provides useful oversight for local Balkan war crimes prosecutions, which are not always up to international judicial standards.
There are some real virtues to war crimes tribunals. Nuremberg yielded a staggering record of the operations of the Nazi machine: The SS's files alone filled six freight cars, and the American chief prosecutor assembled more than 5 million pages of documentation. To this day, that record fortifies us against denial. There are many Serbian nationalists who still believe that nothing happened at Srebrenica. The Hague tribunal can help fight that.
In the end, however, we shouldn't expect too much. Any situation in which there is a need for a war crimes tribunal is a situation that has gone horribly wrong. Having stood by as the slaughters in Bosnia and Rwanda took place, the West can hardly expect that holding war crimes trials will make up for the countless lives that were cut short. After atrocity, all options are awful. War crimes tribunals are simply--in both moral and political terms--the least awful option we have.
Gary Bass is an assistant professor of politics and international affairs at Princeton University and the author of "Stay the Hand of Vengeance: The Politics of War Crimes Tribunals" (Princeton University Press).