Judging the Tribunals

Judging the Tribunals


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 legalistic role.

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 testify.

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 away.”

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 cases.

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 history.

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.

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