Conclusion
IN JULY 1915, at the height of the Ottoman slaughter of the Armenians in Turkey, someone made a humanitarian typographical error. A prominent American missionary leader in New York state, James Barton, sent a desperate telegram to Robert Lansing, Woodrow Wilson’s secretary of state, begging for America to save the Armenians. But Barton somehow garbled his point: “Advices from different parts of Turkey report inhuman treatment of Americans by Turks. Cannot something be done to alleviate the horrors?”1
This got the American government’s attention. “The Department has received no reports of any inhuman treatment of Americans by the Turks, and would be pleased to receive details from you if you have received information to this effect,” Lansing replied, with more than a hint of smugness. “The Department believes, however, that the ‘Americans’ in your telegram should have read ‘Armenians.’ ”2
It was precisely this kind of distinction that the Young Turks were counting on to let them commit their deportations uninterrupted. When Henry Morgenthau Sr., the American ambassador in Constantinople, appealed for mercy to Talaat, the Ottoman interior minister, Talaat snapped: “Are they Americans?”3 That was not the right answer to give to Morgenthau, but it was about right for someone like Lansing. Lansing, no doubt, did not approve of what Talaat was doing; but what mattered above all to the secretary of state was that the victims were not—however poorly a missionary might type—Americans.
This is a small but revealing episode. This book has tried to explain under what circumstances states will support international war crimes tribunals. Lansing gave the simple answer: mostly, when liberal states have been the victims of war crimes. The single best guarantee of a stung and moralistic reaction from a liberal state has been its own victimization. But there are also reasons to think that the answer may be broader and more complicated than that, and that liberal states could, over time, be made to be less selfish and more concerned with the suffering of innocents who do not happen to be their own citizens. The story of the politics of war crimes tribunals is really the story of the constant tension between liberal ideals and cruder self-interest.
For the most part, the selfish impulses have won out. This much, at least, makes sense through a realist prism: there is a powerful emphasis on protecting one’s own citizens and one’s own soldiers.
The single biggest challenge for international war crimes tribunals has been the unwillingness of even liberal states to endanger their own soldiers either by arresting war criminals or in subsequent reprisals. Holbrooke, among others, has explained the Pentagon’s reluctance to pursue Bosnian war criminals as a product of what he calls Washington’s “Vietmalia syndrome,”4 referring to the casualties of Vietnam and Somalia. But the extreme unwillingness of Western leaders to put their soldiers at risk for the sake of international justice in Bosnia—what I have called the O’Grady phenomenon, after the American pilot rescued from Bosnia—is not simply a post-Vietnam or post-Somalia artifact. The roots go far deeper than that.
States have been amazingly consistent in their refusal to pay for international justice in the lives of their own soldiers. As early as 1815, the British squadron that finally captured Napoleon was instructed that the king valued the life a single British sailor as much as Napoleon’s. The trend runs throughout this century: from Churchill’s fiasco with the U-boat crews, to France’s secret 1916 agreement on prisoners with Germany, to the British deal with Atatürk to swap accused Turkish war criminals for British prisoners, and to the American decision not to prosecute Hirohito lest the Japanese fight on. One of the most important—and crude—reasons for the triumph of Nuremberg was that it did not require any additional risks for Allied soldiers, since the Allies had demanded an unconditional Axis surrender before settling on a war crimes policy.
This is the real backdrop for the fear of Serb reprisals that has dominated Western military deployments in ex-Yugoslavia, whether in UNPROFOR, IFOR, SFOR, or KFOR. It was only after the civilian side of the Dayton accords had come to the brink of collapse, with Karadzic prominently flouting NATO’s authority, and after the fortuitous elevation of Albright and Cook, that NATO made its first arrest raids. Even so, one outstanding feature of these raids has been their trepidation about taking risks. Unpopular and marginal war crimes suspects may get nabbed, but not a well-defended and popular figure like Mladic. Even in the Kosovo war, NATO insisted on humanitarianism on the cheap, refusing to send ground troops even as Milosevic’s “ethnic cleansing” killed thousands of Kosovars and put a million of them out of their homes.
Some victims count more than others. Even liberal states have mostly pursued international justice when their citizens had been the victims of war crimes. In World War I, offenses against the British—the deaths of Fryatt and Cavell, U-boat warfare, Zeppelin raids—became national rallying points in Britain. France and Belgium, the two countries that had suffered under German occupation, all but howled for prosecutions. When Americans died at the hands of German U-boat crews, the Wilson administration found its voice on war crimes. As British plans for trials for Ottoman war criminals unraveled, British officials tried to hold onto Turks accused of crimes against Britons to the end, showing more solicitude for Britons than for Armenians.
This explains in large part why aggression was seen as the primary international crime after both world wars. Nuremberg was meant to put the Nazi leaders on trial for the crime that most directly harmed the Allies: starting the war. Many Israelis and West Germans saw the subsequent Eichmann and Auschwitz trials as a necessary way of focusing attention on the Holocaust in a way Nuremberg had not. The Tokyo tribunal went to equal lengths to put Japanese leaders in the dock for aggression, even though Japan had not committed a genocide. The most notorious Japanese atrocity against the Chinese, the Rape of Nanking, was not the focus of Allied prosecutions.
In this light, the relative lack of Western interest in war crimes in ex-Yugoslavia and Rwanda makes a crude kind of geopolitical—if not moral—sense. The slaughters of Armenians and Jews were carried out by wartime enemies of the most powerful liberal states; the slaughters of Bosnians and Tutsi were a project by groups against whom the West bore no particular grudge. If America had for some other reason been in a war against the Bosnian Serbs or the Rwandan Hutu, Bush and Clinton might have been quicker to take steps to stop their criminality—witness Bush’s sudden discovery of the criminal nature of Saddam Hussein’s regime after the Iraqi invasion of Kuwait. It was the great misfortune of Rwandans and Bosnians to be able to make appeals to the West only in moral terms.
The Power of Idealism
The picture is not all bleak. There are genuine principled impulses in the behavior of liberal states, pushing back against more selfish impulses.
Although citizens tend to come before foreigners, liberal states also have a universalistic strand built in: a domestic ideology that sees rights as universal and inviolable, which can thus force liberal states to worry about the plight of foreigners. This struggle between the self-serving and humanitarian impulses in states comes up over and over again. There were powerful diplomats and ordinary citizens in the West horrified by the sack of Belgium, the Armenian genocide, the Holocaust, the genocide in Rwanda, and the ravaging of Bosnia and Kosovo. NATO is currently showing considerable seriousness about helping the Hague tribunal prosecute war crimes in Kosovo. In full cry, this humanitarianism can be a potent force in the making of a liberal state’s foreign policy. This does not leave much space for humanitarianism, but it does leave some. Lansing was more typical than Barton, and more powerful than Barton, but there are people like Barton all the same.
Of course, the decision about whether to seek punishment is not always entirely in the hands of elite decision makers. Public opinion weighs in powerfully. Even Castlereagh could not afford to shrug off popular outcry for the punishment of Bonapartists in 1815; even Prussian and Soviet leaders had to take into account punitive pressures from below. And such public sentiments are particularly hard to muzzle in liberal states.
By 1918, the force of public opinion made it all but inevitable that the Allies would decide to punish German war criminals.5 Lloyd George and Clemenceau were both acutely aware of popular outrage, with Lloyd George even running a hugely successful anti-German campaign in elections immediately after the end of the Great War. Even more skeptical politicians like Churchill felt compelled to campaign on trying the kaiser. And polls in Britain and America during World War II show overwhelming public approval for punishing the Nazis.
Often the leaders are just as enthusiastic: one thinks of Liverpool, Blücher, Lloyd George, Balfour, Calthorpe, Clemenceau, Poincaré, Churchill, both Morgenthaus, Roosevelt, Stimson, Albright, and Cook. There was usually a good fit between elite and public sentiment. The obvious exception is that American public opinion was more enthusiastic about punishing the kaiser than the Wilson administration was.6 This, of course, was not the biggest misjudgment Wilson made about the extent to which the American public stood behind him.
Sometimes elites will push for war crimes trials even when public opinion is disengaged. Here, the only examples are Albright, Holbrooke, and Cook, forcing through the first NATO arrests of Bosnian war crimes suspects despite the forecasting of Dick Morris. They are being even more vigorous in Kosovo. (There is nothing to stop a decision maker from getting out in front of public opinion; but Albright, Holbrooke, and Cook are taking a huge risk if anything goes wrong. It would only take a few dead SFOR or KFOR soldiers to tarnish their forthright stance.)
Nonstate actors can also pitch in. They do not feature in most of this book, for the simple reason that they mostly did not exist until after World War II, and took time to gather strength. Amnesty International, the biggest global human rights group, was not founded until 1961. Because of the lack of examples, this book does not try to account definitively for the precise impact of various tactics by human rights groups.7 But it is clear that a complete account of The Hague and Arusha must include the role of groups like Human Rights Watch, Médecins sans Frontières, and the Open Society Institute, as well as the role of the press. The expertise and cash of nongovernmental organizations helped keep The Hague viable, and the pressure of continuing reports of massive violations of human rights made the feeble reaction of Western governments that much more embarrassing.8 All told, a liberal government can find itself being lobbied for an idealistic policy from all corners: from public opinion, principled decision makers, opposition parties, and nongovernmental organizations.
And finally, there is legalism. The actions of liberal states in this book cannot be explained convincingly without an account of their principled ideas. Liberal states have taken a legalistic approach to the punishment of war criminals, even when so doing has greatly complicated international diplomacy. If the historical episodes in this book are typical, then legalism seems to arise exclusively in liberal states, ones where civil rights are respected at home.
Legalism was not born at Nuremberg; it just came of age there. The exportation of liberal domestic norms of due process has been an important fact of international relations since at least World War I. The legalistic efforts at the end of World War I rival the more famous projects after World War II. Indeed, in some ways, legalism actually was more expansive in earlier days, when the notion of outlawing war was seen as a critical part of the legalist project, instead of as a dead end.
Even liberal states can be sorely tempted to dispense with such niceties as trials (as Prussia and the Soviet Union would have) and simply execute war criminals. These temptations were epitomized by Morgenthau Jr. and by Churchill, once he turned against legalism after disastrously pushing it in 1915. In World War II polls, democratic electorates, too, were decidedly nonlegalistic. Legalism seems to be an elite phenomenon—a product of liberalism, not of democracy per se.
But no matter how bloodthirsty democratic citizenries were, there was a countervailing tendency in American and British politics that demanded legalism. Even the British government, soured on trials by Leipzig, would only hear of executing fifty to one hundred top Axis leaders at the end of World War II. Churchill insisted on trials for lower-level war crimes suspects, and was furious at Stalin’s suggestion of mass executions of Germans. Stimson doggedly fought his bureaucratic rivals for a legalistic approach, invoking the Bill of Rights and the Supreme Court. There was nothing overdetermined about Stimson’s victory; the most that one can credibly argue is that liberal states will have their legalists, and that they will tend to win. Certainly, Stimson’s kind of arguments would have been unthinkable in an illiberal state, and incomprehensible to Blücher or Stalin in a way they were not to Roosevelt. In the event, this legalism meant that, at the end of the greatest conflagration in human history, the victors extended the protection of due process to their defeated enemies in Nuremberg and Tokyo.
When war and massacre tore apart Yugoslavia and Rwanda, the reaction of the great liberal powers was legalist. One of the most potent arguments for intervention was that war crimes were being committed, especially when images of Serb concentration camps conjured up (not quite correctly) memories of the Holocaust. If Serb forces were committing crimes against humanity in Croatia and Bosnia (and later Kosovo), and if Hutu forces were committing crimes against humanity in Rwanda, then the appropriate reaction was to create a war crimes tribunal like that at Nuremberg.
Of course, there was a distinct tokenism to this legalism. Unlike in World War II, this time legalism came easily to America and other NATO countries. The outrage of the public, or of decision makers in the mold of Morgenthau Jr., was largely absent. To be sure, the West insisted on giving the benefit of due process to ex-Yugoslav and Rwandan war criminals. For those few Western leaders who were genuinely enraged at “ethnic cleansing,” it was impressive that they would tame their anger with legalism. But for the rest, it was no great feat to impose the form of legalism on policies that were never meant to be serious.
All told, this legalism may sometimes seem eccentric, absurdly pious, or an impediment to substantive justice; but it is certainly principled. Legalists can be sincerely horrified at violations of the norms of war and serious in their intention to punish the offenders. There is at least some idealistic clay to work with here.
Nuremberg and Tokyo—and Leipzig and Constantinople before them—were roundly criticized as conquerors’ courts.9 This was their great flaw, and their great advantage. True, the Allies sat in judgment because of the morally arbitrary fact of having won a war. “Chance is the supreme judge in war and not Right,” Lloyd George wrote.10 But with the anger and bitterness of wartime came a resolute desire to punish the war criminals, to translate chance into right.
In contrast, the Hague tribunal was widely applauded as the first truly international war crimes court. “This is a truly international institution,” said tribunal president Cassese. “It is an expression of the entire world community, not the long arm of four powerful victors.”11 But this was both a moral strength and a practical weakness. The punishment of Axis war criminals was a matter of the first order for the Allies; the punishment of ex-Yugoslav war criminals was not Bill Clinton’s problem. Clinton, after all, is president of the United States, and that office has weighty responsibilities: health care, tax breaks, Kenneth Starr, and other matters that furrow brows at the White House in a way that Bosnia and Rwanda did not.
If there is to be, despite American objections, a serious permanent war crimes tribunal—the ICC—then liberal governments will have to make a far stronger commitment to international justice than they have in the 1990s.12 What made Nuremberg suspect made it strong; what made The Hague unimpeachable made it weak. For Clinton—and for the American public—legalist words have often been a substitute for real political actions in Bosnia and Rwanda. As Judith Shklar once wrote, “The idea that all international problems will dissolve with the establishment of an international court with compulsory jurisdiction is an invitation to political indolence. It allows one to make no alterations in domestic political action and thought, to change no attitudes, to try no new approaches and yet appear to be working for peace.”13
There is, after all, a self-serving case for a more legalist world. Liberal states would be better off in a world where aggression and violent bigotry are punished. Multiethnic societies like America, India, and Nigeria have a particular interest in seeing law tame ethnic conflict (Clinton has nervously compared America’s multiethnicity with Bosnia’s).14 Or perhaps better-informed liberal publics could push their governments to greater humanitarianism. And Western militaries—who have recently tried to obstruct legalistic projects—have a particular interest in the enforcement of the laws of war. Soldiers are some of the only Americans who, as part of their occupation, are by definition at risk of becoming the victims of war crimes—witness Malmédy, or the UNPROFOR hostages in Bosnia. Any military commander would shudder at the thought of operating in a region where the enemy routinely abused prisoners of war.
Even if states are often self-serving in their pursuit of international justice, a more universalistic brand of justice can hitch a ride on a particular state. The high-water mark of international justice, Nuremberg, was an example of just that. Today almost nobody remembers the quixotic American crusade to outlaw war itself, but the category of crimes against humanity is well-established. But this drift to universalism can only happen if there is a robust tribunal in existence.
In the last analysis, the two international war crimes tribunals in The Hague and Arusha stand largely as testaments to the failure of America and the West.15 Had the West managed to summon the political will to stop the slaughters in Rwanda and Bosnia, there would have been no need for these two fragile experiments in international justice. No war crimes, no war crimes tribunals. But having abdicated the responsibility of stopping war crimes, the West has now put its faith in weak international institutions to restore the world community’s good name. No matter how successful the two tribunals may come to be in the fullness of time—including, of course, the unhappy possibility that they will be forgotten as completely as Leipzig and Constantinople—they will not be able to fulfill that task. Legalism will never make up for the lives lost; but legalism is all we have now.