* CHAPTER ONE *

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.1

But that was all a world away. Now Blaskic could only see Ahmici—with its Muslim houses gutted, and Croatian nationalist graffiti spray-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.”2 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.³ 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.4 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.⁵ 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.⁶ After World War I, Yugoslavia pushed Bulgaria into trying some of its own.⁷ Indira Gandhi, India’s premier, called for trials of Pakistanis accused of atrocities in Bangladesh in 1972.⁸ There was also some discussion in America of trials for North Koreans after the Korean War.9 The Bush administration threatened trials for Iraqi cruelty in Kuwait,¹⁰ and the Clinton administration is considering a tribunal for Iraq’s so-called Anfal atrocities against the Kurds.¹¹ 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.¹² 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?¹³ The treatment of humbled or defeated enemy leaders and war criminals can make the difference between war and peace.¹⁴ 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.”¹⁵ 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 war-time 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.16 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.¹⁷ 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.¹⁸ 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.”19 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.”²⁰ 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.”²¹ 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!”²² 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.”23

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.²⁴ 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.”²⁵ 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.”²⁶

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.²⁷ 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.”²⁸ 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.²⁹

Thus to realists, international moralizing in general—and punishing war criminals in particular—is mystifying.³⁰ 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.³¹

In a sweeping book that lavishes attention on the Krüger telegram and the Fashoda crisis, Henry Kissinger does not even mention Nuremberg.³² In 1954, the British historian A.J.P. Taylor asked, “Who cares now whether William II and Berchtold were ‘war-criminals’?”33 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.”³⁴ 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.”³⁵ 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.”³⁶

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.”³⁷ 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,³⁸ 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.”³⁹

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.”⁴⁰ Overheated moral judgments and particularly “personal retribution,” Kissinger implied, risk undermining a peace.⁴¹

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.”42 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.”⁴³

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.”⁴⁴ 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.”⁴⁵ 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.⁴⁶ 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.47 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.⁴⁸ 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.”⁴⁹

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.⁵⁰ 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.51

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.”⁵² 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.”⁵³ 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.⁵⁴ Eden worried, “[T]he precedent of public trials of prominent statesmen shows that the procedure is rarely advantageous to the prosecution.”⁵⁵ 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).⁵⁶ Of 1,409 Japanese defendants tried in American courts after World War II, only 163 were sentenced to death.⁵⁷ 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.⁵⁸ 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.59 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 1788–95.⁶⁰ 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.⁶¹ 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).⁶² 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.⁶³ 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 Hutu 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).”64 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.65 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.⁶⁶

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.”⁶⁷ “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.”⁶⁸ 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.”⁶⁹

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?

The Liberal Approach

Realists argue that the exigencies of anarchy force states to similar behavior—an amoral struggle for security—regardless of their domestic ideals. So democracies and dictatorships alike do what they need to do to survive.⁷⁰ This runs contrary to a long tradition of seeing domestic politics as crucially important for foreign policy. Plato accused tyrants of stirring up wars to distract their subjects from their misery at home.⁷¹ Rousseau blamed states for causing wars.72 Lenin, Hobson, and Schumpeter saw domestic roots for imperialism.⁷³ And in a more optimistic vein, Kant relied on republican constitutions to bring perpetual peace.⁷⁴

So the foreign policy of liberal states might reflect liberal principles, at least up to a point. This opens the door to idealism in foreign policy. The reintroduction of domestic norms even in the extremities of wartime shows that states have options, and that their choices can therefore be morally judged.

An enduring dilemma of American foreign policy is the difficulty of maintaining American domestic ideals abroad: of being as pure in conducting foreign policy as in conducting domestic policy. “It was assumed that the foreign-policy institutions, like other [American] political institutions, would reflect the basic values of the preexisting and overwhelmingly preponderant ideology,” wrote Samuel Huntington, an eminent political scientist. “Yet precisely these institutions—foreign and intelligence services, military and police forces—have functional imperatives that conflict most sharply and dramatically with the liberal-democratic values of the American Creed.”⁷⁵ Elsewhere, Huntington worried that, in American civil-military relations, “[t]he real problem was the ideological one, the American attitude of mind which sought to impose liberal solutions in military affairs as well as in civil life.”⁷⁶ Political scientist Aaron Friedberg argues that America’s cold war technology-based nuclear deterrence strategy was largely determined by American domestic liberalism, which was ideologically opposed to the kind of intrusive, militarized garrison state that would be necessary to support a war-fighting strategy against the Soviet Union.⁷⁷

There is an increasing body of evidence by political scientists suggesting that domestic preferences are reflected in a state’s approach to international affairs. Making an argument similar to mine, David Lumsdaine writes, “The values and practices of domestic political life are apt to be preferred in international politics.”⁷⁸ In a sweeping study of foreign aid, he shows that the most generous foreign aid donors were those countries that had generous social welfare programs at home.⁷⁹ Andrew Moravcsik argues that states act purposefully abroad to represent the interests of some part of the domestic polity.⁸⁰ And Huntington argues that American liberalism tends to “transpose its domestic successes to foreign relations,” especially lawyerly measures like a World Court and outlawing war.⁸¹

Liberals argue that democracies almost never fight each other.⁸² Democratic peace theorists believe that some combination of liberal institutions and norms combines to make democratic states behave radically differently from other states on the fundamental question of international relations—whether to go to war. My argument is related to the democratic peace school: I argue that liberal ideals make liberal states take up the cause of international justice, treating their humbled foes in a way utterly divorced from the methods practiced by illiberal states.83

What does this mean for war crimes tribunals? If a war crimes tribunal is victors’ justice, it makes a difference who the victors are. Victorious legalist liberal states tend to operate abroad by some of the same rules they observe at home.⁸⁴ “A trial, the supreme legalistic act,” wrote liberal political theorist Judith Shklar, “like all political acts, does not take place in a vacuum. It is part of a whole complex of other institutions, habits, and beliefs. A trial within a constitutional government is not like a trial in a state of near-anarchy, or in a totalitarian order.”⁸⁵

As Kennan, Huntington, and others have (often disapprovingly) noted, liberal America has a propensity toward a lawyerly foreign policy. From the Paquete Habana (a 1900 case with the Supreme Court sitting as an international court of prize)⁸⁶ to the recent use of the 1789 Alien Tort Statute⁸⁷ to try to bring Karadzic before a New York court, American courts have not shied away from stepping outside of American borders. The Alien Tort Statute, strengthened by the Filartiga decision in 1980, and joined with the Torture Victim Protection Act of 1991, has been used against such figures as a former Guatemalan defense minister, a former president of Haiti, and the estate of the late Ferdinand Marcos, the exdictator of the Philippines.⁸⁸ Yamashita Tomoyuki, a Japanese general charged with not preventing his troops from committing war crimes in the Philippines, appealed his case all the way up to the Supreme Court.⁸⁹ Warren Christopher, Clinton’s first secretary of state—and a prominent Los Angeles lawyer—says of the Hague tribunal: “I had a sort of a lawyer’s sense of not wanting to interfere with the proceedings of the tribunal.”

Liberal diplomats can be startlingly explicit about their exportation of domestic norms. In 1918, as the Imperial War Cabinet decided to seek Wilhelm II’s trial, Frederick Smith, the British attorney general, said, “Grave judges should be appointed, but we should … take the risk of saying that in this quarrel we, the Allies, taking our stand upon the universally admitted principles of the moral law, take our own standards of right and commit the trial of them to our own tribunals.”⁹⁰ As Woodrow Wilson put it in his address to Congress on declaring war in 1917, “We are at the beginning of an age in which it will be insisted that the same standards of conduct and of responsibility for wrong shall be observed among nations and their governments that are observed among the individual citizens of civilized states.”91 And Robert Jackson wrote to Truman that

our test of what is legally crime gives recognition to those things which fundamentally outraged the conscience of the American people and brought them finally to the conviction that their own liberty and civilization could not persist in the same world with the Nazi power…. The feeling of outrage grew in this country, and it became more and more felt that these were crimes committed against us and against the whole society of civilized nations by a band of brigands who had seized the instrumentality of a state. I believe that those instincts of our people were right and that they should guide us as the fundamental tests of criminality.⁹²

Even those who do not welcome such statements agree on the underlying dynamic. Kennan wrote that such international legalism “undoubtedly represents in part an attempt to transpose the Anglo-Saxon concept of individual law into the international field and to make it applicable to governments as it is applicable here at home to individuals.”⁹³ Idealism begins at home.

There are two strong pieces of evidence to support the liberal view of international relations. First, every international war crimes tribunal that I am aware of—Leipzig, Constantinople, Nuremberg, Tokyo, The Hague, and Arusha—has rested on the support of liberal states. Second, conversely, when illiberal states have fought each other, they have never established a bona fide war crimes tribunal. They may trade accusations of atrocities as propaganda, but nothing more legalistic. Think of the Chaco War between Bolivia and Paraguay, the 1970 Syrian invasion of Jordan, the 1985–87 Sino-Vietnamese War, or the Iran-Iraq War.⁹⁴

After the Franco-Prussian War, Bismarck scorned any talk of putting Napoleon III on trial.⁹⁵ While the liberal Allies were having a series of war crimes trials in the Pacific, the Soviet Union did not bother with any sort of judicial proceedings for the hundreds of thousands of Japanese prisoners of war captured in Stalin’s brief foray into Manchuria.⁹⁶ The seriousness of the Soviet Union’s commitment to legality can perhaps be judged by the fact that the Soviets tried to include the Katyn forest massacre at the Nuremberg trials—despite the fact that the massacre had actually been committed by the Soviets. The Soviet judge was the only one to dissent from the Nuremberg judgment, objecting to three acquittals and the sentencing of Rudolf Hess to life in prison instead of hanging.⁹⁷ The Soviets wanted a show trial, and were piqued when the other three Allies would not let them have it.98 The exportation of domestic habits is not always a welcome development.

WAR CRIMES LEGALISM

Due Process across Borders

Much of this book chronicles the principled belief that war criminals must be put on trial—a legalistic solution to a complex moral and political problem. Legalism, as defined by Shklar, is “the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.”⁹⁹ In this book, legalism mostly manifests itself as a fixation on process, a sense that international trials must be conducted roughly according to well-established domestic practice—not just rule-following, but rule-following when it comes to war criminals. (I properly ought to say “war crimes legalism,” but that seems cumbersome.) Liberal states are legalist: they put war criminals on trial in rough accordance with their domestic norms.

There is a growing academic interest in the power of ideas in international relations.¹⁰⁰ But it is difficult to trace precisely the influence of ideas. One problem is that it can be difficult to anticipate which ideas will prove influential.¹⁰¹ Another is that it is hard to specify ex ante what exactly the content of these ideas is, which can lead to circular explanations that infer ideas backward from the actions of states. And another is that one will confuse ideas with self-interest.¹⁰² But one can sidestep these hazards by locating the sources of ideas in clear, well-established domestic politics, and then tracing their functioning in the international arena. Neither the source nor the presence of the idea of legalism is hard to discern. The common (and correct) statement that international law lags behind domestic law shows that causality runs from domestic norms to international ones.

Liberal states believe, with varying degrees of intensity and seriousness, in universal rights. Such states also have well-established judicial systems and domestic norms of nonviolent contestation in politics. From such peaceful ways of politics and tribunals, liberal leaders learn a respect for due process. And because of their belief in the universal applicability of their liberal principles, liberal leaders are tempted to use those methods of fair trial even outside their own borders.¹⁰³

The Universal Application of Domestic Norms

Liberal states—that is, states that respect civil and political rights—almost never commit atrocities at home.104 Liberal politicians do not profess radical violence or revolution, do not rise to power by killing, and do not stay there by repression.¹⁰⁵ The quietude of liberal polities is enhanced by a strong, well-respected judicial system. Whatever the domestic imperfections and ethnic hatreds in liberal states, in their domestic nonviolence and well-established judicial systems they are still qualitatively different from illiberal states.¹⁰⁶ Accustomed to such norms, liberal leaders can be genuinely shocked by overseas atrocities. As Ernest Pollock, the British solicitor general, said while preparing lists of German war crimes suspects in 1919: “The test that had been applied by himself and his French colleagues was: ‘Do these charges shock any plain man’s conscience?’ ”¹⁰⁷ Liberal elites think: we do not do such things here.¹⁰⁸ Even in the darkest days of World War II, when he wanted to execute the top Nazis, Churchill did not trust his country to tolerate such killings, “for I am certain that the British nation at any rate would be incapable of carrying out mass executions for any length of time, especially as we have not suffered like the subjugated countries.”¹⁰⁹

There is more underlying liberal states’ legalism than just the rule of law. After all, some authoritarian states also respect the rule of law, albeit often harsh laws. But the liberal acceptance of the rule of law comes in the context of rights, often protected by the courts. Political trials cut deeply against the liberal grain.

These rights, whether resting on natural law (as in Vattel), a Rawlsian thought-experiment, divinity, or a process of discourse, are often seen as universal, or at least not strictly domestic rights.¹¹⁰ In 1788, in Parliament, Burke dismissed the venal Hastings’s notion of

a plan of Geographical morality, by which the duties of men in public and in private situations are not to be governed by their relations to the Great Governor of the Universe, or by their relations to men, but by climates, degrees of longitude and latitude, parallels not of life but of latitudes. As if, when you have crossed the equinoctial line all the virtues die…. [T]he laws of morality are the same every where, and… there is no action which would pass for an action of extortion, of peculation, of bribery and of oppression in England, that is not an act of extortion, of peculation, of bribery and of oppression in Europe, Asia, Africa, and all the world over.¹¹¹

The most important practical liberal document, the American Declaration of Independence, says that all men are created equal, with inalienable rights. It does not specify that those men must be Americans, not Bosnians. Approvingly citing Justice Hugo Black, Louis Henkin, a distinguished scholar of the Constitution, argues that the Constitution was “not only a social contract by citizens for citizens. It was not only for home consumption. It established a community of conscience and righteousness and the people directed their representatives to respect individual human rights wherever they exercised the people’s authority, in or outside the United States.”112 For Henkin, there is little difference between foreign and domestic rights-based constraints: “In principle, then, the Bill of Rights limits foreign policy and the conduct of foreign relations as it does other federal activities.”¹¹³ Political scientists echo the theme. “Within a transnational domestic culture,” wrote Bruce Russett, “as within a democratic nation, others are seen as possessing rights and exercising those rights in a spirit of enlightened self-interest.”¹¹⁴

Because these rights can be seen as universal, they can be spread. Strictly speaking, a British-imposed war crimes tribunal on behalf of British prisoners of war need not rely on universal rights, but on a sense of British responsibility for Britons. But liberal states often go beyond that. The notion of human rights is axiomatic to today’s liberal citizens. When seeking justice for the Armenians, the Jews, the Kurds, the Bosnian Muslims, the Rwandan Tutsi, or the Kosovars, liberal states rest their efforts on universal rights—hence the famous category of crimes against humanity. This category is not just an invention of Nuremberg; it dates back at least to the 1915 Armenian massacres. Universal human rights do not respect “geographical morality” or sovereignty.

Theoretically, any ideology that transcends sovereignty—like pan-Arabism, pan-Slavism, or Marxism—can extend its jurisdiction beyond national borders. But Marxist and pan-Arabist states are not necessarily legalist, so this might result in political support for a group of victims but not in trials: outrage, but not legalism. Many Muslim countries sympathized with the plight of Muslims in Bosnia, which built pressure for the creation of the Hague tribunal; but American proposals for trying Iraqi war criminals for atrocities against Kuwaitis and Kurds have generated scant enthusiasm among the Persian Gulf monarchies, even though all of the parties in question are Muslim. Israel abducted and tried Adolf Eichmann according to the constraints of Israeli legalism, but it would not do the same for war criminals who were not perpetrators of the Holocaust.115

The roots of Western universalism may partially lie, ironically enough, in a pan-Christian concern for the laws of war. Hugo Grotius was moved to write by cruelty among warring Christians, and Thomas Aquinas claimed the Greek tradition of natural law for Christianity.¹¹⁶ In practice, European Christian sympathy for fellow Christians under Ottoman rule resulted in numerous semi-humanitarian interventions. In 1774, Russia was granted a right to intervene in the Ottoman Empire to help Russian Orthodox Christians; Britain and Russia sided with the Greeks in their war of independence in 1821–30; in 1860, France sent six thousand troops to Syria and Lebanon to help Maronites being massacred by Druse; and in 1876 Gladstone raged against the “Bulgarian horrors.”¹¹⁷ In the 1915 Armenian massacres, British solicitude rested on both a kind of pan-Christian solidarity as well as a more universal humanitarianism.

Whatever its precise lineage, in practice, it is only liberalism that has looked so far beyond its own borders. Lloyd George’s legalism did not respect sovereignty, monarchy, empire, or even divinity: he once told the Imperial War Cabinet that Alexander the Great and Moses should have been tried as war criminals.¹¹⁸

This universalistic legalism can be baffling to the war criminals who face it. During the Armenian massacres, Henry Morgenthau Sr., America’s ambassador to the Sublime Porte, tried to appeal to the conscience of Talaat Pasha, the Ottoman minister of the interior and one of the masterminds of the atrocities. Talaat once told Morgenthau, “You are a Jew; these people are Christians.” Morgenthau snapped, “[A]t least in my ambassadorial capacity I am 97 per cent. Christian…. I do not appeal to you in the name of any race or any religion, but merely as a human being.”¹¹⁹

There is of course the danger that liberal states will overreach. Shklar warned: “When, for example, the American prosecution at the Tokyo Trials appealed to the law of nature as the basis for condemning the accused, he was only applying a foreign ideology, serving his nation’s interests, to a group of people who neither knew nor cared about this doctrine. The assumption of universal agreement served here merely to impose dogmatically an ethnocentric vision of international order.”¹²⁰ My point is not whether it is wise for liberal states to impose their norms on Turks, Iraqis, Serbs, and so on. The point is that it happens.

The Importance of Due Process

What exactly does it mean to be legalist? From World War I to Kosovo, liberal states have consistently seen attacks on civilians and cruelty to prisoners of war as criminal acts. Even with foggier and less easily justifiable charges, like aggression, legalists remain devoted to the idea that a trial is the proper way of dispensing justice. This is only one rule among many that could guide the legalistic mind, but it is a crucial one. As Henkin notes, “The constitutional provisions that afford fair criminal procedures apply also to persons charged with violating foreign affairs statutes, even to foreign nationals accused of espionage.”121 Legalism is above all about due process. Thus, Jackson, in his report on the London Conference, wrote of the importance of

provisions which assured to the defendants the fundamentals of procedural “due process of law.” Although this famous phrase of the American Constitution bears an occasionally unfamiliar implication abroad, the Continental countries joined us in enacting its essence—guaranties securing the defendants every reasonable opportunity to make a full and free defense. Thus the charter gives the defendant the right to counsel, to present evidence, and to cross-examine prosecution witnesses.¹²²

America might have been willing to fudge a bit by creating new categories of crimes, but it was conservative about the essential modalities for a trial: jurists steeped in Western domestic legal traditions, the possibility of acquittal, standards of evidence, proportionate punishment, and so on. A court-martial or an international military tribunal is not the same thing as, say, the U.S. Court of Appeals for the Second Circuit, and American and Continental law are hardly identical; but an amalgam of basically fair liberal legal arrangements is still easily discernible from a Soviet-style show trial. The American lawyers trying Japanese war criminals conducted themselves “just like ‘the boys back home.’ ”¹²³ “It was as if Sullivan & Cromwell or Milbank, Tweed, Hadley & McCloy decided to conduct a trial,” writes one commentator on Nuremberg. “The aura of the prevailing New York corporate law firm culture drifted across the Atlantic and landed in Nuremberg.”¹²⁴

The accusation may be murder, rape, or theft—or genocide, or aggression—but the case will wind up in a court. Cruelty to prisoners of war, or mass killing of civilians, have been criminal throughout this century—and well before.¹²⁵ (True, some legalists have not shown a particular horror of setting new precedents, such as when arguing about whether sovereignty entitles a government to slaughter its own subjects. The novelty of some charges, like genocide or rape, was not the result of a desire to convict the accused on trumped-up charges; it was generally a product of the accused’s innovations in cruelty.126) To be sure, there is a distinct danger that politicized charges, of which Wilhelm’s “supreme offence against international morality and the sanctity of treaties” is the most glaring example ever put up by liberal states, may make a mockery of the method of a trial. There are charges so unfair that they undo any notions of due process. But such excesses are usually checked by the judges who will eventually hear such cases. Liberal states have not been willing to seriously compromise their domestic standards of a fair trial when putting foreign leaders on trial.¹²⁷ Nuremberg was a stripped-down version of domestic British or American trials, but not so much that it could fairly be called a naked exercise of state power. State power was exercised before Nuremberg, to put the Nazis in the dock; but once they were there, they faced full-blown Western legalism as it had developed in its domestic context.

This is not always to the liking of some lawyers, who worry that extending the law abroad will only corrupt the law. This is a kind of lawyerly isolationism: our laws are too good for just anybody. Lawyers, after all, take precedent seriously, which can be paralyzing in the face of innovations in atrocity.¹²⁸ Robert Lansing, Wilson’s secretary of state, frowned at the idea of trying Wilhelm II for starting World War I, and at the idea of crimes against humanity—anything, that is, that expanded the scope of international law. Stimson hesitated to prosecute German crimes against German Jews. Nuremberg and Tokyo’s charges of aggressive war raised many eyebrows. In Profiles in Courage, John Kennedy lauded Robert Taft for opposing plans for Nuremberg.¹²⁹ And at the Supreme Court, Chief Justice Harlan Fiske Stone noted,

It would not disturb me greatly … if that power were openly and frankly used to punish the German leaders for being a bad lot, but it disturbs me some to have it dressed up in the habiliments of the common law and the Constitutional safeguards to those charged with crime….

Jackson is away conducting his high-grade lynching party in Nuremberg…. I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.¹³⁰

Stone does not dwell on the alternative to a high-grade lynching: the usual type of lynching.131

Once a president or prime minister has turned the judgment of defeated enemies over to the judges, the outcome is in the hands of laws that developed from domestic traditions. Arendt, suspicious of the motives of David Ben-Gurion, Israel’s prime minister, in trying Eichmann, was nevertheless impressed by the fairness of the Israeli judges: “[T]he trial is presided over by someone who serves Justice as faithfully as Mr. Hausner [the prosecutor] serves the State of Israel.”¹³² America sent some of its finest jurists to Nuremberg; Jackson, a Supreme Court justice, was in the habit of ignoring executive wishes. (Stalin sent Vishinsky.) Richard Goldstone had headed the Goldstone commission investigating atrocities in democratizing South Africa—another good way of learning to defy your own government.¹³³ The leaders of the executive branch understand perfectly well what risks—acquittals, technicalities, tedium—they are taking. But a liberal executive still sometimes leaves the fate of war criminals up to the courts.

Legalism’s Antithesis: Totalitarian Show Trials

Political trials have earned a bad reputation since those of Socrates and Jesus. In France before the Revolution, the poor who defied the state faced special rigged trials.¹³⁴ But such illiberal trials reached their apotheosis in modern totalitarian states. These regimes show the opposite of liberal legalism: the complete subversion of legal norms. The judiciary has no independence. Predictable bureaucratic authority is replaced with arbitrary terror. Nazi and Soviet show trials, Shklar wrote, have “nothing to do with justice. Their end is elimination, terror, propaganda, and re-education…. They are part of regimes that have already abandoned justice as a policy, and our judgment of these courts must depend on our view of the ends they serve, not of their ‘betrayal’ of justice, since the ideologies which inspire them are profoundly unlegalistic and indeed hostile to the whole policy of justice.”¹³⁵ These trials took a terrible toll. From 1933 to 1945, Nazi civilian courts executed an estimated 16,560 people, plus 40,000 to 50,000 German soldiers killed after courts-martial. Even setting aside the use of courts in collectivization, the Soviet Union sentenced a million people to death in the 1937–39 purges, and perhaps twelve million people died from 1936 to 1953 in camps after being purged.¹³⁶

In Mein Kampf, Hitler had written that “one day a German national tribunal must condemn and execute several tens of thousands of the criminals who organized and are responsible for the November treason and everything connected with it.”137 Nazi domestic trials, instruments of the Nazi state rather than checks upon it, aimed at discovering if the accused had become an enemy of the race. As legal scholar Ingo Müller has noted: “As a result, the purpose of a trial now became not so much to determine whether the accused had broken a law, but rather ‘whether the wrongdoer still belongs to the community’; the criminal trial was supposed to be ‘an evaluation and segregation of types.’ A decisive characteristic of National Socialistic theory was that emphasis was placed less on the act committed than on the ‘criminal personality.’”¹³⁸ Nazi “jurisprudence” ordered purges, established concentration camps, wrote the Nuremberg Laws, and took away the civil rights of Jews.¹³⁹ In 1934, the Nazi regime created its special Volksgerichtshof (People’s Court) to realize Hitler’s ambition in Mein Kampf. In 1944, after the failure of the Stauffenberg plot to kill Hitler, Hitler gave a glimpse of his idea of justice: “This time the criminals will be given short shrift. No military tribunals. We’ll haul them before the People’s Court. No long speeches from them. The court will act with lightning speed. And two hours after the sentence it will be carried out. By hanging—without mercy.”¹⁴⁰

The story was much the same in the Soviet Union. Hitler even once referred to Roland Freisler, the president of the Volksgerichtshof, as “our Vishinsky.”¹⁴¹ Russia had an unhappy history of rigged tsarist political trials, but the Communist version of the practice, under Andrei Vishinsky’s prosecution, reached unprecedented depths. Robert Tucker described the 1938 show trial as “a gigantic texture of fantasy into which bits and pieces of falsified real history have been woven along with outright fiction.”¹⁴² As historian Adam Ulam put it,

The Bolshevik mind—and not only Stalin’s, though his was the extreme case in point—was unable to distinguish between theoretical and factual reality, between the world of ideologically inspired dreams or suspicions and the world of hard facts…. They [Bukharin and Rykov] must have realized, as Stalin did during the purge trials, that the indictment was manufactured and the confessions exacted through pressure. But these were “details”; the essential fact was that the accused were of hostile class origin and hence capable of the crimes of which they were charged. The principle “innocent until proven guilty” is not so much alien as incomprehensible to someone nurtured on Communist dogmas and categories. Does one have to prove that the kulak is an enemy of the Soviet power? … Freedom, wrote an English jurist, was secreted in the interstices of procedure. Stalinist terror bred upon Communist semantics: terms like class war, class justice, enemy of the people, encouraged a frame of mind in which individual guilt or innocence was the consequence not of facts but of political and social imperatives of the moment.143

Reporting on the 1976 trial of four Czech rock musicians, Vàclav Havel wrote that the court system had become “a judiciary fully aware of how it is manipulated by power, but incapable of defying that power and so, ultimately, accepting the pitiful role of a subordinated employee of the ‘masters.’ ”¹⁴⁴ The contrast with real legalism is stark.

THE POLITICS OF WAR CRIMES TRIBUNALS

Five Propositions

Liberals need to ask why liberal states so often fail to pursue war crimes tribunals, and realists need to ask why war crimes trials happen at all.¹⁴⁵ Moving from theory to practicalities, there are at least five important recurring themes in the politics of war crimes tribunals.¹⁴⁶ First, it is only liberal states, with legalist beliefs, that support bona fide war crimes tribunals. That much, at least, is a minor triumph for idealists. Illiberal states, in contrast, are more cynical: they may support a show trial only as a way of pursuing a Carthaginian peace.

There are sharp limits to liberal idealism. As the second proposition, even liberal states tend not to push for a war crimes tribunal if so doing would put their own soldiers at risk. From the Napoleonic Wars to Bosnia, this is perhaps the single biggest impediment to the creation of robust institutions of international justice.

Third, there is a distinctly self-serving undertone to liberal campaigns for international justice. Even liberal states are more likely to be outraged by war crimes against their own citizens than war crimes against foreigners. The more a state has suffered, the more likely it is to be outraged.

Fourth, even liberal states are most likely to support a war crimes tribunal if public opinion is outraged by the war crimes in question. And they are less likely to support a war crimes tribunal if only elites are outraged.

Finally, nonstate pressure groups can be effective in pushing for a tribunal, by shaming liberal states into action and providing expertise. This theme does not come up as much as the other four, for these nonstate groups only came of age after World War II. Taken together, these five propositions constitute a sketch of the politics behind the support, or abandonment, of war crimes tribunals.

FIRST PROPOSITION: THE LEGALISM OF LIBERAL STATES

Only liberal states have legalist domestic norms that have a clear impact on foreign policy. Illiberal states can do things the easy way: summary executions, show trials, or ignoring the issue of war crimes altogether. Liberal states find it much tougher to do so.147 No doubt, there will be decision makers in liberal governments who scoff at the idea of war crimes trials. But liberal governments, even if they might otherwise prefer to either ignore war criminals or summarily execute them, tend to be bound by their own liberalism.

Ironically, this legalism can interfere with war crimes prosecutions. The recourse to law brings in a series of standards that can make it difficult to prosecute. Robert Lansing had legal objections to putting Wilhelm II on trial; some American officials were reluctant to include Nazi atrocities against German Jews in the Nuremberg charges; and it has been difficult to find adequate evidence to convict Arkan or Milosevic. Liberal diplomats often find themselves squirming at the challenge of exporting their domestic standards.

SECOND PROPOSITION: PROTECTING SOLDIERS

For want of a better term, call this the Scott O’Grady phenomenon. In June 1995, O’Grady, an American F-16 pilot, was shot down by the Bosnian Serb Army. While the White House still refused to send American troops to save Bosnian civilians, America went to extraordinary lengths to bring O’Grady home safe, sending Marine commandos into hostile Serb territory. O’Grady got a hero’s welcome back in America, and his name is still fairly well known. What is striking is not just that even liberal states value the lives of their own more than those of foreigners, but how radically the lives of foreigners are discounted. There is no doubt that O’Grady’s life is precious; the puzzle is why Bosnian lives were seen as so cheap.

To realists, this makes a kind of sense. Security is paramount, and if there is a trade-off between protecting soldiers and protecting the innocent, the innocent are liable to get the worst of it. Hans Morgenthau wrote, “[T]he principle of the defense of human rights cannot be consistently applied in foreign policy because it can and it must come in conflict with other interests that may be more important than the defense of human rights in a particular instance.”148 Here, the protection of soldiers stands as a kind of rough proxy for some of these other interests.¹⁴⁹ Liberal universalism only goes so far. “Americans are basically isolationist,” Clinton said in 1993, as American soldiers were dying in Somalia. “They understand at a basic gut level Henry Kissinger’s vital-interest argument. Right now the average American doesn’t see our interest threatened to the point where we should sacrifice one American life.”¹⁵⁰

This proposition is also perhaps a way of explaining the absence of a call for a war crimes tribunal in the aftermath of the horrors committed by Mao, Stalin, or (until very recently) Pol Pot. Western complicity aside, what country was going to risk its soldiers to bring them to trial? This also explains why war crimes tribunals are almost invariably linked to a peace settlement. In war, the soldiers are already at risk. If a proposed tribunal puts them at greater risk, the tribunal idea is in serious trouble; if the proposal calls for putting them in harm’s way in the first place, it has even slimmer chances.

This is not only the military’s fault. True, militaries are often the center of opposition to war crimes prosecutions; as Samuel Huntington noted, “The military man normally opposes reckless aggressive, belligerent action.”¹⁵¹ It is unexceptionable that officers and military commanders want to protect their troops; but civilian leaders also shrink from casualties in the pursuit of international justice, as shown repeatedly in Bosnia. Conversely, one of the reasons Nuremberg went off so well was that the Allies had already decided to occupy Germany even before settling on a war crimes policy. It was assumed that catching war criminals would not increase the danger to troops, and in the event even Göring and Frank surrendered quietly. Whenever the safety of one’s own is at stake, considerations of justice for others melt away.

THIRD PROPOSITION: PUTTING CITIZENS BEFORE FOREIGNERS

When will states be outraged at war crimes? Countries are first and foremost outraged by wars waged against them. The playwright Eugène Ionesco has a character say, “If only it had happened somewhere else, in some other country, and we’d just read about it in the papers, one could discuss it quietly, examine the question from all points of view and come to an objective conclusion…. But when you’re involved yourself, when you suddenly find yourself up against the brutal facts you can’t help feeling directly concerned—the shock is too violent for you to stay cool and detached.”152 There is no doubting the sincerity of British outrage during the Blitz, or the depth of Russian feeling during Hitler’s invasion—or, for that matter, German outrage during the fire-bombing of Dresden, or Japanese outrage at the atomic bombings of Hiroshima and Nagasaki. The fact that the names of O’Grady and Nurse Edith Cavell (a Briton executed by Germans in World War I) are widely known shows a great concern for even a handful of one’s own citizens. Any state, liberal or otherwise, may be solicitous of its own citizens.

Even liberal states are primarily concerned with war crimes against their own. During World War I, eagerness for war crimes trials increased in proportion to the severity of suffering: Wilson was less interested in hanging the kaiser than Lloyd George was, and Belgium and France were, in turn, more enthusiastic about it than Britain. British officials came to worry more about prosecuting Turks who had mistreated British prisoners of war than Turks who had killed Armenians. Britain has shown more interest in prosecuting Libyans for the Lockerbie terrorist incident than in punishing Serbs for atrocities against Bosnian Muslims. A liberal state that has suffered in a war will be more likely to seek international justice than one that has not. And a liberal state will probably be more concerned with prosecuting war crimes against its own citizens than those against foreigners, even when the suffering of the foreigners far outweighs that of the citizens of that liberal state.

Liberal states do make universalistic arguments for the protection of those who are not their citizens. Liberal states are more apt to pursue prosecution for war crimes committed against their own citizens; but because they are universalists, liberal states may also be outraged by crimes against humanity committed against noncitizens.¹⁵³ Selfishness predominates, but not totally.

FOURTH PROPOSITION: OUTRAGE, MASS AND ELITE

Legalism alone is not enough; one also needs outrage. Any country, liberal or not, can be outraged by an enemy’s war crimes. Such fury is a necessary but not sufficient condition for supporting a war crimes tribunal. Outrage alone could result in summary executions, as proposed by Prussia in 1815 and, on a vast scale, by the Soviet Union in 1943. Conversely, legalism without outrage could result in a dreary series of futile legal briefs.

Liberal domestic institutions can be conducive to voicing mass outrage for two reasons. First, they do not offer elites the option of using certain methods to silence public opinion. If Stalin had decided for some reason not to punish the Nazis, he would have had ways of stifling the outrage of average Russians that were not available to Churchill or Roosevelt. Nor can liberal states muzzle an inconvenient press. Second, by definition, democracies are responsive to public opinion.

Polls from World War II show that the British and American publics were bitterly punitive toward the Axis, and policymakers responded to that. As Kennan disapprovingly wrote, “[A] good deal of our trouble seems to have stemmed from the extent to which the executive has felt itself beholden to short-term trends of public opinion in the country and from what we might call the erratic and subjective nature of public reaction to foreign-policy questions.”154 The dynamic can work in reverse, too: elite outrage can stoke mass outrage, through speeches and propaganda. The British election of 1918, in which Lloyd George’s government rode and stoked public anger at Wilhelm II, is a fine example of both. One could equally well explain British enthusiasm for war crimes trials for Wilhelm II and other Germans by pointing to the British public’s anger, or to that of Lloyd George and Curzon.

This is not to say that liberal diplomats will not sometimes try to stand against their public’s wishes. In France in 1815, Castlereagh, Britain’s foreign secretary, did not mind doing business with Bonapartists whom the English public could not stomach. In such situations, one would expect the elites to win out in the short term. Elites are simply closer to policy decisions; mass opinion may not influence them fast enough. A determined leader can act now and worry about public opinion later. This is less likely in liberal states, where elites know that the price of flouting public opinion may yet be paid on election day, but still not impossible.

In the long term, such elites are taking a real risk. Wilson preferred the League of Nations to punitive war crimes trials, although many Americans disagreed. Today, Madeleine Albright’s push for a tougher war crimes policy may manage to win out, but it always risks being swamped in bureaucratic infighting or overruled—by the Pentagon, Bill Clinton, or an American electorate with no stomach for casualties. The best guarantee of an idealistic policy is consistent idealistic pressure from the electorate.

FIFTH PROPOSITION: NONSTATE ACTORS

Some idealists have long hoped to tame a world of Realpolitik by relying on international public opinion. In 1870, Gladstone wrote:

Certain it is that a new law of nations is gradually taking hold of the mind, and coming to sway the practice, of the world; a law which recognises independence, which frowns upon aggression, which favours the pacific, not the bloody settlement of disputes, which aims at permanent and not temporary adjustments; above all, which recognises, as a tribunal of paramount authority, the general judgment of civilised mankind.155

It was on that kind of foundation that the League of Nations briefly rested, and it is that hope that inspires human rights groups to push for war crimes tribunals.

Since the 1960s, international human rights groups have grown stronger. In the debates over ex-Yugoslavia and Rwanda, nongovernmental organizations (NGOs) have been a noticeable voice—although states are still by far the most powerful international actors. The Hague tribunal has taken advantage of NGO resources: forensic experts from Physicians for Human Rights, documentation from Human Rights Watch, funding for the commission of experts by the Soros Foundation, and so on.¹⁵⁶ But in the end, these NGOs can claim credit, or bear responsibility, for the establishment of the tribunal mostly insofar as they were able to persuade the liberal members of the Security Council. The pleas of Human Rights Watch presumably had little impact in Beijing, but they were a source of embarrassment in Washington.¹⁵⁷

Pressure from NGOs is not a necessary condition for the establishment of a war crimes tribunal. The courts at Leipzig, Constantinople, Nuremberg, and Tokyo were set up without the benefit of today’s human rights NGOs. But now that they do exist, these NGOs can provide expertise and raise the domestic costs in a liberal country for ignoring foreign atrocities.

This book is primarily about the politics of international justice. For the sake of truth in advertising, it is not about three closely related topics—not for any lack of interest, but in the hopes of focusing an already large book.

First, this book is not about domestic transitions to democracy. That is why Bosnia features here and South Africa does not. In democratizations, there is some consensus on what the national community is; not so in wars. More important, democratizations usually involve an amnesty for the ancien régime as a negotiated price of a peaceful transition.158 In contrast, all of my cases here involve defeat in war: an opportunity for the sheer imposition of justice that is exceedingly rare in democratization. Students of democratization tend to view Latin America and Eastern Europe as having distinct dynamics in confronting authoritarian human rights violations; international justice has its own dynamics, too.

Second, this book is not primarily about international institutions. It is true that institutions, domestic or international, are often the repositories of ideas.¹⁵⁹ Realists and institutionalists both agree that these institutions are the creation of a powerful state—a hegemon, in political scientist Robert Keohane’s formulation.¹⁶⁰ Realists tend to believe that these institutions remain tools of states; neoliberal institutionalists argue that “sticky” institutions can linger long after the hegemon has faded from the scene, playing a powerful role even without backing from a state.¹⁶¹ This book does not address this debate because my case studies tend to come at the very moments when international institutions—the Holy Alliance, the League of Nations, the International Court of Justice, the UN—are being created. Nuremberg was part and parcel of a post–World War II network of institutions that included the UN and the Bretton Woods organizations,¹⁶² and Leipzig was linked to the creation of the League of Nations.

The major exceptions are the twin UN tribunals for ex-Yugoslavia and Rwanda, and the nascent permanent ICC. The Hague tribunal has stigmatized Karadzic and Milosevic as indicted war criminals, showing the power of international institutions. The Hague has shown surprising independence and durability, despite fitful political support. Although they have almost certainly never read Keohane, the tribunal’s staff sound like neoliberal institutionalists. “It’s a sort of Frankenstein,” said an official in the prosecutor’s office, neatly summing up much of the neoliberal institutionalist argument. “You create the monster and then you can’t control it.” Did Goldstone, the first chief prosecutor, think that the Security Council had realized in 1993, when it first set up the tribunal, that the court would indict Karadzic and Mladic? “Probably not,” says Goldstone. “But that’s what happens when you create an institution. They really take on a life of their own.”

Finally, this book is not about international law. There has been a great deal written about international criminal justice, but this book is mostly interested in the politics that underpin (and undermine) international law.

To reiterate, my argument is that the pursuit of war criminals can only be explained with reference to domestic political norms in liberal states. Authoritarian and totalitarian powers may seek to punish defeated foes, or they may choose to do business with them. When they have chosen punishment, they did not use legal methods; rather, they took arbitrary steps like shooting their enemies, or at best putting on an obviously rigged show trial. And in one respect, liberal and illiberal states are similar: they have tended not to put their own soldiers at risk for international justice.

But unlike illiberal states, liberal states are often constrained by their domestic norms. Liberal states commonly see their enemies not as mere foes, but as war criminals deserving legal punishment. Liberal states are unlikely to shoot war criminals, although they can be tempted by that prospect. Rather, even when liberal decision makers are painfully aware of the risks of acquittal, delay, and embarrassment posed by a war crimes tribunal, domestic norms push them to apply due process beyond their own borders. Liberal states are most likely to seek such legalistic punishment when it is their own citizens who have suffered war crimes, but they also sometimes pursue war criminals for atrocities against foreigners. So in the crucial question of how to treat a defeated foe, liberal states are profoundly different from illiberal ones.

The bulk of this book will be spent developing these themes across five historical chapters: the aftermath of the Napoleonic Wars; World War I; the Armenian genocide; World War II and the Holocaust; and the wars of Yugoslavia’s disintegration. This book also considers three other cases throughout the course of the narrative: the Tokyo trials for Japanese war criminals after World War II; the abortive American pursuit of Iraqi Ba’thists during the Persian Gulf crisis; and the UN war crimes tribunal, in Arusha, Tanzania, for the 1994 Rwandan genocide. In an epilogue, I will consider, more speculatively, whether war crimes tribunals seem to be effective tools for reconciliation in shattered societies.

In their closing arguments in Tihomir Blaskic’s trial, over two years later, the prosecutors blamed Croatia’s president, Franjo Tudjman, for the “ethnic cleansing” of the Lasva Valley. For its part, Croatia, fearing an indictment of Tudjman, was refusing to turn over subpoenaed documents that might be incriminating, and dragging its heels on the extradition of two other war crimes suspects. The Hague formally complained to the Security Council, while Tudjman himself publicly denounced the prosecutors as “dilettantes.” Justice was still grinding slow.

Tudjman died of cancer before the trial ended. Blaskic finally heard the verdict against him on March 3, 2000. Convicted on nineteen charges of command responsibility and individual responsibility for the ravaging of the Lasva Valley and Ahmici, Blaskic was sentenced to forty-five years imprisonment—the stiffest sentence handed down by the tribunal to date, for the highest-ranked military officer to be convicted. In his summary of the court’s findings, Judge Claude Jorda of France made a point of blaming Tudjman’s Croatia for “pitting the Muslims and Croats of central Bosnia against each other.” The verdict was received angrily by Bosnian Croat leader Ante Jelavic, the Croat member of Bosnia’s three-person presidency, who denounced it as a sentence “against Croatian people in Bosnia as a whole.” Ivica Racan, the prime minister of the more moderate government that had emerged in Croatia after Tudjman’s death, called for an appeal of “a really severe sentence.” But Bosnian officials applauded the verdict, calling it a step towards reconciliation.

For Blaskic, justice will now be measured in the creeping minutes of those forty-five years. For the liberal states that brought Blaskic to the dock, justice is measured in the ability of such trials to bring a sense of fairness and dignity to Bosnians, and maybe even a sense of order to a violent world.