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It is probably safe to say that the war crimes trial in The Hague of the
former Serbian dictator Slobodan Milosevic is not going well. At least
so far. No credible witnesses have come forward to testify against the
man who is credited with starting four Balkan wars. No documentary
evidence has been advanced to prove his "command responsibility" for
murderous ethnic conflicts. The prosecution's bungling has turned what
was once touted as a "water-tight case" into a battle of wits, allowing
Milosevic to mount a fifth war--legal and psychological--against the
It is, of course, an uneven battle. The court is supported by the might
of the United States and its vast eavesdropping and
intelligence-gathering facilities. Behind the scenes, Americans have
tried to induce some of Milosevic's former henchmen to testify against
him. (That includes the notorious paramilitary leader known as Arkan,
who was gunned down inside the Belgrade Intercontinental two weeks after
he lunched there with an American intermediary for the CIA.) Publicly,
the United States has linked all financial assistance to Serbia to the
extradition of suspected war criminals; the hope is that some of them
may provide the needed information about Milosevic's "command
The former dictator, on the other hand, has to rely mainly on himself,
his wife and a few supporters. The image of a solitary individual
standing up against the world not only appeals to his vanity but also
seems to energize him. His defense strategy is brilliantly cunning,
designed to play on Serbia's psychological vulnerabilities and continued
Serb resentment of the 1999 NATO bombing. From the outset he has said
that the court is illegal, that it is NATO's victors' justice and that
he would not accept its judgment. Yet, acting as his own defense
attorney, he has used the tribunal as a stage for his antics, playing
the role of a defiant David to NATO's Goliath, the victim of powerful
foreign enemies, and in the process doing all he can to make his a trial
of the whole Serbian nation.
Opinion polls suggest that his strategy is working in Serbia. Even
though four out of five Serbs want to see Milosevic tried
in a Serbian court for crimes committed against his people, a majority
applaud his stand at The Hague.
This is unfortunate. This public perception is likely to discourage
potential witnesses from coming forward. In the absence of compelling
evidence against him in court, Milosevic's political rehabilitation becomes a distinct
possibility. More significant will be the impact on the world's first
permanent court--which is to be established also in The Hague--to
replace ad hoc courts like the one sitting in judgment of Milosevic. But
it is up to the ad hoc tribunal to come up with the precedent-setting
legal standard of "command responsibility" (the conditions under which a
tyrant, even if not directly involved, can be held responsible for
crimes committed by his subordinates).
This raises several broader questions: What sort of justice, exactly, is
being served in The Hague? Why is it that the prosecution, having
claimed to have a water-tight case, appears to be flailing in the dark?
Was the court manipulated by the Clinton Administration? What exactly
was the secret intelligence that the United States and British
governments supplied during the 1999 Kosovo war to prompt the court to
Louis Sell is one of those rare anonymous State Department officials who
venture to write books in their retirement. He was highly regarded by
his superiors and held the rank of political counselor in two major
embassies: Belgrade and Moscow. His tour in Belgrade, from 1987 to 1991,
coincided with Milosevic's rise to power and the outbreak of war in
Yugoslavia. This has placed him in the middle of things. Scores of
secret cables, sensitive intelligence reports, raw National Security
Agency telephone intercepts and even satellite photos landed on his desk
each day. He not only had access to everything the analysts and spooks
produced on the Yugoslav crisis but was one of the few people capable of
placing such material
in the proper context. (He had served in
Yugoslavia in the 1970s and is fluent in Serbo-Croatian.) He returned to
the region in 1995 as political deputy to former Swedish Prime Minister
Carl Bildt, then the European Union's chief negotiator for the former
Yugoslavia. After the Kosovo war, Sell served as director of the
International Crisis Group in Kosovo.
By background and experience, Sell is a bureaucratic insider. Unlike the
more senior officials--Richard Holbrooke or Gen. Wesley Clark--he has no
need to defend his reputation. Nor is he a man prone to
self-glorification. His twenty-eight years in the State Department
conditioned him to shun the limelight. This may be why he could
apparently not bring himself to give the reader his own take on events.
Instead he has chosen a journalistic format, relying mainly on published
sources--news dispatches, opinion columns and books. This was a poor
choice. He knows far more than most authors he quotes in his Slobodan
Milosevic and the Destruction of Yugoslavia.
Indiscriminate reliance on Western press reports is risky. For example,
Sell reproduces a German tabloid story about Milosevic's alleged
involvement in drug trafficking. Far too often he resorts to "Western
journalists" as the only source of this or that information; far too
often the phrase "everybody knew that..." crops up in the narrative as
the sole source for a given Serbian crime. Although he tries to write
dispassionately, his anti-Serb bias gets in the way from time to time.
In one instance, he writes that the high command in Belgrade sanctioned
the July 1995 attack on Srebrenica; the source for the assertion is a
book published in 1994. Is this sloppy writing? Careless editing?
Sell does offer a shrewd assessment of the former dictator. He sees him
as someone "without any core beliefs or values other than his own
political survival." Milosevic, he writes, "was not very good at using
power for anything other than keeping it." He was an enormously
destructive figure. Obsessed with power, he deliberately impoverished
not only Serbia's economy but also its intellectual and social fabric
"in order to eliminate the very capacity for independent alternatives to
The book follows familiar lines; I doubt whether it contains anything
that has not been said before. One does come across interesting tidbits:
Washington took an almost instant dislike to Carl Bildt, because he "had
not developed the habit of deference to Washington" and was unwilling
"to take direction." Needless to say, Bildt did not last long in the
There is, of course, nothing surprising nowadays in high-level American
officials expecting deference from little nations or their
representatives. But this is only a part of America's post-cold war
attitude toward the rest of the world. It also permeates US policy in
the Balkans. Despite the rhetoric about justice and eagerness to help
the people of Serbia, the book suggests that the United States was
interested in the Hague court as a political tool rather than a
mechanism that would add another dimension to international law by
holding individual leaders responsible for war crimes and crimes against
humanity. Everything that would detract from Washington's
policy--whatever that policy is at any given moment--must be dismissed
out of hand or ignored. With a sleight of hand, Sell dismisses British
and French experts who found conclusive proof that Muslim snipers had
fired on their own people in order to stimulate sympathetic media
coverage for their plight. He ignored Canadian Gen. Lewis MacKenzie, who
said he had personally seen a similar incident. Sell also ignores the
fact that Secretary of State Lawrence Eagleburger accused Milosevic of
war crimes in Bosnia and Croatia in December 1992; Eagleburger's speech
in Geneva no longer fits the official narrative.
Within a year, Milosevic had reinvented himself as a born-again
peacemaker. By 1995 he was the "guarantor" of peace in Bosnia. (He was,
indeed, most responsible for the successful outcome of the peace talks
at Dayton, Ohio.) He shared the stage with Bill Clinton during the
signing ceremonies in Paris. Clinton flattered him. "It's nice to hear
your voice," Clinton told the dictator. The American President, aboard
Air Force One to visit US troops in Bosnia, chitchatted with the Serbian
dictator about the Dayton agreement. "I know it cannot go ahead without
you," Clinton said, according to a recently published transcript of the
conversations monitored by Croatian intelligence.
So, even though "it had long been clear that Milosevic was responsible
for ethnic cleansing and other crimes...in Croatia and Bosnia," Sell
tells us, he was not indicted, because the Clinton Administration was
unable to find a "smoking gun" that would directly link him to the
misdeeds. We are led to conclude that the Administration did not assign
high priority to the task.
On the eve of the Kosovo war, however, the US government became active
in seeking to tie Milosevic to war crimes in Kosovo in early 1999. The
State Department's war crimes intelligence review unit was given a
boost: The number of its analysts and the urgency of its task were
increased. Having no diplomats or spies in Serbia, Sell reports,
analysts used satellite photos to study troop movements inside Kosovo.
The outcome was "precisely the kind of evidence needed to indict
Milosevic on the basis of 'imputed command responsibility'" for ordering
ethnic cleansing or failing to stop it. Canadian jurist Louise Arbour,
the chief prosecutor at the time, must have known that the intelligence
she was given did not meet the standards of proof required in a court of
law. She traveled to Washington, London and Bonn apparently seeking a
policy context for the tribunal's action against Milosevic; but she got
"totally ambiguous" responses. As NATO planes continued to bomb
Yugoslavia, the flow of intelligence material reaching the tribunal
increased, but most of it was part of NATO's massive propaganda campaign
against Milosevic. This must have preyed on the minds of the
prosecutors, leading them to believe that they had a substantial case
that would hold up in court. Indeed, the initial indictment was confined
to war crimes committed in Kosovo in 1999.
The tribunal may indeed have been manipulated by outside forces, as some
of its officers feared. As is frequently the case in the Balkans, a
story always seems clear at a distance, but the closer you get to the
scene of events the murkier it becomes. The drafters of the
indictment--somewhat to their surprise later--had not taken into account
the fact that Kosovo was a secessionist province that had declared
independence in 1991, as a result of which it was placed under Serbian
police rule. The province remained quiet as long as the Albanian
struggle was confined to peaceful means. However horrific the Serbian
repression, it did not include ethnic cleansing. But by 1997, the
Albanians had taken up arms. Milosevic had an armed insurrection on his
hands. Moreover, when the Kosovo war ended, the liberated Albanians had
lost their moral high ground; they embarked on a killing spree of the
defeated Serbs under the noses of NATO peacekeepers.
Once Milosevic was deposed, the legal weaknesses of the Kosovo
indictment became painfully obvious, and the prosecutors moved to
include Croatia and Bosnia, the latter being the prime stage for the
charges of genocide and crimes against humanity. Like Sell, I too have
no doubt that Milosevic is guilty as charged, at least with respect to
most counts dealing with Bosnia. I witnessed a good deal while covering
his wars from 1990 to 1996. But it is crucial that this be established
in a court of law. Although the pool of Milosevic's partners in crime
has been shrinking (most recently with the suicide of his former police
minister), a number of them are still at large. The tribunal needs these
former Serbian officials; some should be offered immunity from
prosecution in exchange for their testimony. The prosecutors should work
with local Serbian authorities and hire local private investigators
rather than depend on the might of the United States to force the
extradition of suspected criminals. Without such witnesses and in the
absence of spectacular documentary evidence, the tribunal is heading for
On late-night television the other day I watched Spencer Tracy and
Marlene Dietrich in the 1961 movie Judgment at Nuremberg, about
the trials of Nazi war criminals. It was a riveting courtroom drama. The
evidence against the accused was overwhelming. By comparison, the Hague
tribunal is more like the trial of Al Capone, the Chicago mobster who
was responsible for a series of gangland murders. Although everybody
knew Capone was guilty, police could not prove it. Eventually he was
sent to jail for tax evasion. One way or another, I suspect, Milosevic
will end up spending many years in jail. Let's hope this will be done
for the right reasons.
After years of collecting evidence against Slobodan Milosevic, the
prosecutors at The Hague expected a decisive victory. But as the former
Yugoslav president, who insisted on defending himself, began his opening
statement at his war crimes trial last February, his accusers realized
they'd got more than they
had bargained for. Ever the wily politician, Milosevic railed that the
trial was a political farce staged by an illegal court determined to
rewrite history and condemn not only him but the entire Serbian nation.
But if Milosevic's assault was an irritant, it should have come as no
surprise. After all, his arguments hark back to those of one of our most
renowned modern philosophers. Indeed, behind every contemporary war
crimes tribunal, it seems, looms the shadow of Hannah Arendt. Reflecting
on the 1961 trial of Adolph Eichmann, Arendt raised some of the same
sorts of objections. In Eichmann in Jerusalem, Arendt took to
task the prosecution, which she claimed transformed the trial of one
Nazi functionary into a stage for manipulating history and
indoctrinating future generations. For prosecutors to use the trial of
an individual to expose and judge the atrocities of an entire war,
Arendt wrote, "can only detract from the law's main business: to weigh
the charges brought against the accused, to render judgment and to mete
out due punishment." To Arendt, a criminal trial could never truly
respond to the scale of Nazi atrocities: "It is quite conceivable that
certain political responsibilities among nations might some day be
adjudicated in an international court; what is inconceivable is that
such a court would be a criminal tribunal which pronounced on the guilt
or innocence of individuals."
Yet modern war crimes tribunals are attempting to do just that, and
Arendt's arguments stand as a persistent challenge--one that is sure to
take on more urgency as the first permanent international criminal court
begins its work, over vehement US opposition (the Bush Administration
has just announced it is renouncing President Clinton's signature of the
treaty creating the court). In The Key to My Neighbor's House,
Elizabeth Neuffer, a reporter for the Boston Globe, implicitly
takes it on. Although Neuffer doesn't discuss Arendt's views directly,
her portrayal of the international criminal tribunals for the former
Yugoslavia and Rwanda ultimately serve as a persuasive reply.
Neuffer devotes the first half of her book to the 1990s conflicts in the
Balkans and Rwanda, interspersing stories of survivors with historical
and political analysis and intermittent on-the-scenes reporting. She
recounts how in each region, power-hungry nationalists exploited old
ethnic tensions to spark a genocide with political aims. Although not
always artfully told, the narrative effectively conveys the tragedy of
each war, highlighting horrors such as the shelling and siege of
Sarajevo, the fall of Srebrenica and the subsequent mass execution of
Muslim men and boys. Concerning Rwanda, she describes how escalating
tensions between Hutus and Tutsis grew increasingly violent until they
culminated in the slaughter of 800,000 Tutsis and moderate Hutus in less
than 100 days. Although detailed and heartfelt, such stories have been
told before (Philip Gourevitch's We Wish to Inform You That Tomorrow
We Will Be Killed With Our Families has become a classic on the
genocide in Rwanda). What Neuffer adds is a revealing portrait of the
two international tribunals where survivors eventually sought justice.
Her portrayal serves as convincing evidence that, contrary to Arendt's
contention, these courts can and should play more than a traditional
Consider the story of Hamdo Kahrimanovic. A Muslim elementary school
principal from the Bosnian town of Kozarac, Hamdo was imprisoned in the
Omarska concentration camp in June 1992 after Serb nationalists took
over his hometown. At Omarska, Hamdo encountered his former student,
Dusan Tadic, now a gangster brutalizing camp inmates. When, four years
later, the Yugoslavia tribunal declared its first trial in session,
Tadic was in the dock. Hamdo, who had known Tadic all his life, was
called to testify.
At the trial, Neuffer recounts, the earnest American judge struggled to
understand how Bosnia could have so quickly degenerated from a
harmonious multi-ethnic state into a scene of genocide. "Perhaps you can
help me to understand since I am not from that area," she said. "How did
that happen?" Hamdo was at a loss. "I had the key to my next-door
neighbor's [house] who was a Serb and he had my key," he said, giving
Neuffer the title for her book. "That is how we looked after each
other." After the war broke out, "one did not know who to trust anymore
and I do not have a word of explanation for that."
As a legal matter, Hamdo's testimony was probably irrelevant to Tadic's
case. Yet it captured an important element of the tragedy of the Bosnian
war and haunted the judge long afterward. In contrast to Arendt's
formalistic view of a trial, Neuffer suggests here that the court's
attempt to record and understand the crimes that occurred is as
important as its judgment of any individual who caused the events.
In the end, Tadic was convicted of crimes against humanity but acquitted
of murder. Unfortunately, the press had lost interest by the time the
verdict was announced; few Bosnians even heard about it. Still, Neuffer
believes the trial was important, for "there is an innate human need for
some kind of reckoning, an accounting," she writes. Over time, such
accountings begin to have a palpable effect on survivors' lives. By
1999, the tribunal had indicted and arrested most of Kozarac's local
warlords, and Hamdo, his wife and about 240 other Muslim families were
able to return home, beginning the process of reconciliation.
The Rwanda tribunal's consequences similarly reach beyond isolated
convictions. We see this through the harrowing story of Witness JJ, as
she's called by the tribunal to protect her identity. A young Tutsi
woman, JJ managed to escape when Hutu extremists attacked her small
farming village of Taba. She sought refuge at the offices of the popular
local mayor, Jean-Paul Akayesu, whom she'd known since she was a girl.
But Akayesu soon turned on JJ and the other Tutsi women, joining in the
genocide and, as the tribunal's investigators eventually learned,
plotting a mass rape. JJ became one of those gang-rape victims, barely
escaping death. When Akayesu went on trial in 1997, JJ was called to
JJ provided critical testimony at Akayesu's trial--the first in which
rape was deemed an act of genocide and a crime against humanity. But the
experience contributed more than a legal precedent. Neuffer describes
how JJ, initially intimidated by the imposing courtroom, lawyers and
judges, began her testimony hesitantly. But she gained confidence as she
told her story, even under harsh cross-examination. "When I saw Akayesu
with my eyes in court, I was afraid," JJ said later. "But at the same
time, I had something heavy on my heart. After I testified, it went
Unfortunately, the tribunal offered JJ little beyond that therapeutic
effect: It neither provided restitution nor helped survivors discover
what happened to lost family members. And to many Rwandans, tribunal
justice seems patently unfair: While more than 100,000 lower-level
accused genocidaires pack local prisons awaiting trials where
they face the death penalty, their ringleaders sat in a UN-run jail--with
its "state-of-the-art exercise room and wide-screen TV," as Neuffer
describes it. At most, they will receive life in prison.
The tribunals' problems, moreover, have been compounded by the West's
reluctance to provide necessary support. Created by the UN Security
Council, largely out of shame at the UN failure to intervene effectively
in either conflict, both courts have been stymied by lack of funds,
poorly trained staff, mismanagement and the inherent challenge of
creating a court that functions outside any established legal system.
The Yugoslavia tribunal, based in The Hague, faced in addition a
political snare: Peace negotiations were ongoing, so NATO members were
loath to have their troops arrest indicted war criminals still in
positions of power. The Rwanda tribunal, meanwhile, located in Arusha,
Tanzania, was marred by allegations of corruption.
Over time, both tribunals have improved. Neuffer's final assessment,
although qualified, is positive: "Tribunals, truth commissions, local
trials, government inquiries--are all part of the answer," she writes.
Neuffer's book is similarly a qualified success. While well researched
and comprehensive, it tries to do too much. Neuffer is so eager to
humanize the survivors, for example, that she frequently tries to
re-create their sentiments in a manner that seems forced and
unnecessary. And Neuffer's personal commentary is sometimes strained. In
an apparent nod to Arendt's famous observation about the banality of
evil, Neuffer ponders her meeting with a man who participated in the
Srebrenica massacre: "The evil I glimpsed in him was the potential for
evil we all share.... What's most chilling when you meet a murderer is
that you meet yourself." Such extrapolations are neither convincing nor
necessary. As Arendt herself recognized, we don't all have the potential
to become thoughtless murderers. Moreover, Neuffer would surely agree
that those who commit the crime ought to be held responsible. Indeed,
she takes the point further: Even if Tadic, like Adolf Eichmann, was
only a cog in a murderous machine, the goal of such a prosecution is
greater than the conviction of the individual.
Lawrence Douglas makes that argument forcefully in The Memory of
Judgment. An associate professor of law, jurisprudence and social
thought at Amherst College, Douglas writes about the trials of the
Holocaust. Though he takes a more analytic approach than Neuffer's,
examining in often painstaking detail the legal charges and evidence
introduced to support them, Douglas arrives at a similar judgment:
Despite their problems, these legal proceedings provide a form of
justice that's more comprehensive than any individual verdict.
Beginning with the 1945-46 Nuremberg trial of Nazi leaders, Douglas goes
on to discuss Israel's prosecution of Eichmann, followed by several more
recent trials: the 1987 Israeli trial of John (Ivan) Demjanjuk; the
French trial of Klaus Barbie that same year; and Canada's two trials of
a Holocaust denier, Ernst Zundel, in 1985 and 1988. Although a critic of
the trial strategies, Douglas comes down a champion of law's potential.
Unlike Neuffer, Douglas takes on Arendt directly, challenging her view
that the law should judge only the guilt or innocence of the accused.
Although he recognizes the tension between strictly applying law to the
facts of one case and creating a broader historical record, he believes
a war crimes tribunal can do both. Unlike Arendt, he's not bothered by
the idea of a show trial--indeed, the spectacle is precisely one of the
aims. Although he concludes that the Nuremberg and Eichmann trials were
more successful in their didactic aims than were the trials of
Demjanjuk, Barbie and Zundel, all were, in a sense, show trials,
"designed to show the world the facts of astonishing crimes and to
demonstrate the power of law to reintroduce order into a space evacuated
of legal and moral sense."
Nuremberg, of course, was the touchstone. But Douglas believes that
trial was hampered by the prosecutor's insistence on fitting the Nazis'
unprecedented crimes into conventional legal standards--precisely the
legalistic approach Arendt might have advocated. Eager to use the most
reliable proof, they based their case on documents, flooding the court
with paper and numbing the audience to its contents. The result was an
eleven-month trial that produced, as Rebecca West wrote in The New
Yorker, "boredom on a huge historic scale."
The more dramatic moments of the trial, meanwhile, were the most legally
problematic. Take, for example, the screening of the innocuously titled
film Nazi Concentration Camps, which Douglas analyzes in detail.
Made by Allied army officers at the time of liberation, the hourlong
black-and-white documentary reveals camp prisoners with "the twisted
facial geometries and afflicted eyes of the demented," writes Douglas.
The horrors increase as the camera moves from one camp to the next,
lingering on emaciated, naked bodies piled upon one another, unclear if
they are dead or alive. German citizens, meanwhile, are presented as
complicit: "smiling Weimar women, dressed in their Sunday best,
strolling along a tree-lined road, on their way to view the camps by
'invitation' of the Americans."
The response in the courtroom, Douglas recounts, was a stunned silence.
The images, it seemed, spoke for themselves. But what exactly did they
say? The film, whose introduction violated basic rules of evidence,
never indicated who was responsible for the horrors portrayed. Nor did
it name or even accurately convey the crimes committed. Instead of
defining them as crimes against humanity, it presented them as crimes of
war. For political and procedural reasons, crimes against humanity were
defined in such a cramped manner that the term barely surfaced during
the trial. Likewise, genocide, although mentioned in the indictment and
in closing arguments, was otherwise never raised. So eager were the
prosecutors to fit the square peg of the Holocaust atrocities into the
round hole of conventional legal forms that they ultimately distorted
the truth. Although the defendants were appropriately convicted, Douglas
maintains that the historic and didactic impact of the trial was
severely limited by the prosecution's adherence to the most conventional
construction of the law.
In the Eichmann trial, the Israeli prosecutors were determined to do
better. Here, survivor testimony, rather than documents, was central to
the case, providing "the dramatic focus of the trial" and building "a
bridge from the accused to the world of ashes," writes Douglas. But the
Eichmann prosecution made miscalculations of its own. In the Israeli
attorney general's effort to reach beyond proving Eichmann's guilt to
portraying the vast crimes of the entire Holocaust, he opened himself up
to Arendt's criticism that the trial had lost its legitimacy. More than
100 survivors testified about their experiences--a form of "national
group therapy." But while their stories reminded the world of the Nazi
atrocities, they were mostly not about Eichmann.
Eichmann, meanwhile, eerily encased in a glass booth, was presented as a
vicious animal. As the Gestapo's expert on Jewish affairs, though,
Eichmann was not a Nazi leader; he was a bureaucrat, the epitome of what
Arendt describes as "the terrifyingly normal" person who commits
horrendous crimes. Yet the portrayal of him as a monster served the
prosecution's aim of reminding the public of the Third Reich's evil, as
well as the laws demanding that Eichmann's crimes be intentional ones.
To Arendt, the trial also failed as a legal matter because rather than
charging Eichmann with crimes against humanity, the prosecutors, eager
to bolster the political identity of the state of Israel and its new
citizens, framed the charges more narrowly, as crimes against the Jews.
By rejecting the broader legal category, argues Arendt, the prosecutors
failed to create what should have been an important precedent for future
Douglas acknowledges these problems but insists that Arendt's criteria
for success are too narrow. Such trials should do more than apply the
law and reach a judgment; they should create an accurate historical
record and shape collective memory, he maintains. The Eichmann trial was
a legal success, then, "insofar as it transformed understanding of what
the law can and should do in the wake of traumatic history."
Douglas is far less sanguine about the later Holocaust trials, which he
claims obfuscated the very history they were intended to enlighten. The
Zundel trial, in particular, applied legal procedural rules so strictly
that much of the evidence of Nazi crimes was excluded, allowing
Holocaust deniers to turn the trial into a forum for revisionist
Although for the most part he is thorough and convincing, Douglas
occasionally stumbles. For example, he doesn't adequately respond to
Arendt's charge that a domestic trial of an individual accused of
committing an international atrocity can fall prey to political agendas
that distort the historical record. His point about truth commissions
also misses the mark. Douglas maintains that truth commissions are
inadequate because "a trial without judgment is like a race without a
finish--it lacks the sine qua non of dramatic closure that frames and
adds meaning to the shared narratives." But the real shortcoming of
truth commissions is that they don't fulfill two important aims of
criminal law: retribution and deterrence. Douglas is dismissive of the
notion that war crimes trials can have a deterrent effect, but he
shouldn't be. Domestic courts or ad hoc tribunals may be less likely to
deter would-be international law violators, but a permanent
international criminal court that systematically and effectively
prosecutes perpetrators could certainly, over time, do just that.
In coining the phrase "the banality of evil," Arendt observed that an
unthinking person might discard his own moral compass when a new one is
imposed. Ironically, that notion cries out for a far broader role for
criminal tribunals than Arendt would have countenanced. An established
international court that both judges individuals accused of widespread
atrocities and records the experiences of survivors could act as a moral
counterweight to domestic totalitarian leaders. Such a court holds out
the promise not only of deterring the potential architects of organized
brutality but of humanizing their victims in a way that even the most
thoughtless functionary might find difficult to ignore.
A review of Suzan-Lori Parks's Topdog/Underdog.
History will record April 11, 2002, as a day of enormous significance in the effort to achieve the rule of law in the conduct of international affairs. It marks the day the Treaty of Rome, establishing an International Criminal Court, was to be ratified by sixty nations, thus triggering the establishment of the global tribunal with jurisdiction over those who commit war crimes, crimes against humanity or genocide. Tragically, instead of submitting the treaty to the Senate for ratification, George W. Bush would strike our name from the treaty altogether. In a press conference two weeks before the sixtieth nation deposited its ratification, the Administration's ambassador-at-large for war crimes, Pierre Prosper, made it clear that the President is still a hostage to the reactionary sponsors of the misnamed American Servicemembers Protection Act. This act would allow the United States to invade The Hague, presumed seat of the new tribunal, to "free" any American brought before the bar of international justice. In addition, any existing military assistance program to a non-NATO country that is "a party to" the ICC would be suspended.
The ambassador refused to deny that the idea of unsigning the treaty is under active consideration and review. Mere contemplation of such a course of action is bad enough, but active consideration at a time of war is almost beyond belief. We were isolated from virtually every democratic nation with our vote against the ICC on July 17, 1998, when the ICC treaty was adopted by a vote of 120 to 7. Since then it has been signed by our closest allies, including every NATO country but Turkey and all members of the European Union.
The twentieth century was the bloodiest in human history, with a total of 174 million people killed in genocide and mass murders. If there was ever a moment when a US President should demonstrate his fealty to the abiding principles of law and justice, now is that moment. No President has ever revoked the signature of a former chief executive on a treaty by unsigning it. If Bush carries out this unprecedented action, prodded by the right wing of his party, his capitulation will not only dismay our friends and delight our enemies but also strip us of any ability to negotiate changes to the treaty we might validly seek to make. And as we mute our response to the call for a worldwide embrace of the rule of law, we traduce one of the most important principles of American democracy.
First, the Arab League summit here in Beirut was chaos. Then it was the nearest to Arab unity that the Middle East has seen since the collapse of the Ottoman Empire. The chaos, of course, was predictable.
The trial in The Hague of the first state president indicted for genocide was to be the ultimate showdown. In the culmination of a fifty-year struggle by the human rights community against impunity, the firm weight of evidence and international law would be brought to bear on one of the world's most brutal dictators, Slobodan Milosevic. But the set-piece confrontation that began on February 12--a combined case covering three wars over ten years, which is expected to last more than two years--soon ran into problems.
By refusing legal counsel because he rejects the legitimacy of the court, Milosevic did more than insure the image of himself sitting alone against the world. He also gave himself license to thunder, without risking cross-examination, about the Balkan wars as a Western "Nazi" conspiracy to destroy socialist Yugoslavia. "This is a political trial that has nothing to do with the law," he declared.
For procedural reasons, the judges had the case run backward, starting with Kosovo and later taking up the earlier wars in Croatia and Bosnia. This allowed Milosevic to focus initially on the NATO bombing campaign--spending many hours in his opening speech listing civilians and civilian institutions hit (and including many horribly graphic photographs) and stressing his argument that Albanians fled Western bombs, not Serbian forces.
Milosevic played to public opinion, and much of Belgrade was delighted, with a local poll giving his performance high marks and his proud wife, Mira, beaming. If the tribunal hoped to break through Serbia's deep rejection of any responsibility for the wars and atrocities, the proceedings appeared to be having the opposite effect. "He has decided to work for the Serbian people and not for himself. He has broken the media lies produced about us," boasted one parliamentarian from Milosevic's Socialist Party.
Nor has Milosevic been totally alone outside Serbia. The International Committee to Defend Slobodan Milosevic, comprising activists, lawyers and intellectuals (including Harold Pinter and Ramsey Clark) has asserted that the "kangaroo court" with its "victor's justice" is illegitimate because the UN Security Council does not have explicit authority under Chapter VII of its charter to establish tribunals. Critics of the court also focused on small errors and confused witnesses in a prosecution case that began weakly. Some Albanians who took the stand seemed lost, failing to nail down the points sought by the prosecution or appearing overwhelmed by Milosevic's aggressive questioning.
The presiding judge, who sparred so fiercely with the defendant in preliminary proceedings, settled into a routine allowing him fairly wide latitude to cross-examine witnesses, only occasionally scolding, "That is enough, Mr. Milosevic." The schedule of the prosecution's case is constantly revised, as the defendant draws out lengthy (sometimes surprisingly well-prepared) cross-examinations stressing the violence of NATO, the Kosovo Liberation Army and even Al Qaeda against innocent Serbs.
It was easy to imagine Milosevic's performance sending quivers down spines at the US State Department and European foreign ministries as he threatened to call world leaders to the stand, highlight contradictions in the West's Balkans policy as well as civilian deaths caused by its actions, and plot the judicial free-for-all Western governments most fear. Bush Administration officials, appearing before the House Foreign Relations Committee on February 28, criticized delay and mismanagement at the tribunal and called for curtailing some investigations. The comments were delivered by Pierre-Richard Prosper, ambassador at large for war crimes issues, in the very hours when NATO forces were attempting, and failing, to arrest former Bosnian Serb leader Radovan Karadzic in Bosnia. (The Administration sees the arrest of Karadzic as key to its exit strategy for the Balkans and as a prerequisite for closure of the Hague tribunal on the former Yugoslavia by 2008.) Wire reports spoke of "abandoning" the UN system of tribunals and gave the impression that Prosper's view of international tribunals was not far from that of Milosevic himself. Indeed, Washington has been adamant in its rejection of the permanent International Criminal Court, and its position on prisoners from Afghanistan has raised concern in Europe over its commitment to international humanitarian law. Prosper subsequently traveled to The Hague to make more emollient, if less publicized, remarks. Whether the episode was purposefully contradictory, or a storm brewed by selective reporting, a message had been sent.
But for Milosevic, none of this matters. Playing to the media, cross-examining witnesses on tangential issues, making accusations against others (Washington, Sarajevo, Saudi Arabia) instead of addressing charges in the indictment, indeed rejecting the authority of the tribunal (while fully participating)--these are all classic defense strategies. They may influence some opinion in Belgrade and even internationally, but the only relevant audience in the tribunal's hybrid legal system is the panel of three judges who will examine the evidence against him.
Milosevic himself, in court, has several times confirmed a clear chain of military command within the Yugoslav forces. In the coming months, the prosecution can be expected to present senior witnesses from the Belgrade establishment who should go further to confirm a direct conspiracy from the top to commit crimes in Kosovo, particularly mass deportation. The Croatian and Bosnian cases are far more complex, taking place outside the territory over which Milosevic was the chief authority. But the prosecution has laid out detailed diagrams of control in what it calls a joint criminal enterprise, and by all accounts the legal teams on these cases are stronger. The record of Milosevic's responsibility for the wars in the Balkans over the past decade will be aired.
It nonetheless remains a concern that critics, both pro-Milosevic and anti-international law, will exploit the impossibility of anyone but those obsessively following the whole case (available live online at www.domovina.net) to make highly selective critiques. In doing so, they may raise their own profiles but will impede the justice and reconciliation in the region that is the underlying goal of the war crimes tribunal.
It's time for the UN Security Council to impose "externally directed separation."
The violent popular uprising in Argentina and abrupt collapse of its government should be understood as a warning bell, reminding the governing elites how unstable--and unjust--their system of globalization remains. Unfortunately, the Washington establishment prefers instead to dwell on its global war against terrorism. The Bush Administration's battlefield successes in that war, its diplomatic victories in the new trade round launched at Qatar and the House's narrow approval of fast-track negotiating authority for the President seemed to confirm America's self-image as benevolent steward of the world.
When Argentina exploded, it should have blown away the smugness, but instead we witness once again the supple forgetfulness that allows the globalist architects of the IMF and their cheerleaders to skip past obvious contradictions in their ideology. Argentina, one has to recall, was toasted not very long ago as the best case for "responsible leadership" in the developing world. Its regime included the requisite "Harvard-trained economist" as finance minister, who advanced the same austere measures that Washington demanded from the sinking Argentine economy: Squeeze the populace as harshly as necessary until capital accounts are balanced so foreign creditors may feel protected from devaluation or default (they are now likely to experience both).
The Argentines endured quite a lot--four years of recession, unemployment approaching 20 percent, shrinking incomes and public spending--until they swarmed screaming into the streets, looting supermarkets and battling police, with many casualties. Now, Eduardo Duhalde, Argentina's fifth president in two weeks, has lashed out, blaming US-backed free-market policies adopted in the 1990s for the country's collapse. "Argentina is bankrupt. Argentina is destroyed. This model destroyed everything," Duhalde said in his inaugural speech.
The central fallacy exposed by the ruination of Argentina-- and the many previous cases like Russia and Mexico--is the presumption that poor nations should accept the global system's commanding dictates, occasionally including massive suffering in the name of financial order, and in return the system will make them rich (or at least less poor). In Argentina's case, the straitjacket was sincerely accepted in the most extreme terms: Its currency was rigidly bound to the value of the American dollar. This commitment was widely praised by US economic thinkers, and it did stimulate US banks and investors to lend more generously. But it encouraged foreign lending to swell to impossible dimensions--$132 billion in Argentina's case--followed by the inevitable economic deterioration as the dollar soared and Argentine exports ceased to be competitive. The IMF prescribed its usual austerity remedy while lending billions more to cover the debt obligations--thus giving more time for the foreign debtors to be repaid before the inevitable default.
The story of Argentina is baffling, and deeply infuriating, because it is so familiar. Yet sensible reforms, like capital controls on the creditors and alternative economic strategies for developing nations, remain topics for learned papers and polite conferences, not for real action. There is an obvious explanation: IMF policy may ruin many borrowers, but it serves the creditors, who are able to evade the full consequences of their folly. Perhaps if many more nations follow Argentina down the road of debt default, the creditors will also see something wrong with the system and demand change.
It's proven useful of late in Afghanistan, but Annan shouldn't expect miracles.
As envisioned by the Administration, it's unilateralism with a multilateral face.
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