Atone and Move Forward

Michael Stewart

  • Balkan Justice: The Story behind the First International War Crimes Trial since Nuremberg by Michael Scharf
    Carolina, 340 pp, $28.00, October 1997, ISBN 0 89089 919 3
  • The Tenth Circle of Hell: A Memoir of Life in the Death Camps of Bosnia by Rezak Hukanovic
    Little, Brown, 164 pp, £14.99, May 1997, ISBN 0 316 63955 9
  • Burn This House: The Making and Unmaking of Yugoslavia edited by Jasminka Udovicki and James Ridgeway
    Duke, 326 pp, $49.95, November 1997, ISBN 0 8223 1997 7
  • A Safe Area: Srebrenica, Europe’s Worst Massacre since the Second World War by David Rohde
    Simon and Schuster, 440 pp, £8.99, June 1997, ISBN 0 671 00499 9
  • Triumph of the Lack of Will: International Diplomacy and the Yugoslav War by James Gow
    Hurst, 343 pp, £14.95, May 1997, ISBN 1 85065 208 2

In a speech at the London School of Economics in June this year, Antonio Caesese, the President of the International Criminal Tribunal for the Former Yugoslavia, spoke about the century’s greatest forgotten massacre and the role of the ‘Justice Commandos of the Armenian Genocide’ in drawing it to the world’s attention. Though provision had been made in the Treaty of Sèvres in 1920 to bring the Turkish-perpetrators to trial, the impetus soon weakened and in the place of justice came punishment by the Commandos, who sought out and murdered leaders of the Young Turks in Germany in 1921-22. The aim of the Commandos – and this was Caesese’s point – was not primarily revenge. Their most famous member, Soghomon Tehlirian, surrendered voluntarily to the police, hoping that a public trial would make the world more aware of the massacre. Tehlirian was tried, and acquitted, by a Berlin court – but even so the story of the slaughter all but disappeared from the historical record. Antonio Caesese recalled Hitler’s reported appeal to his worried colleagues when they doubted they could get away with a ‘final solution’: ‘After all, who today speaks of the annihilation of the Armenians?’

The International Tribunal which Caesese chairs is not, as some claim, facilitating revenge, but, on the contrary, trying to forestall acts of revenge by punishing the guilty in Bosnia. Much more is at stake in The Hague than the future of Bosnia, however. The Tribunal is the first, tentative step towards a fundamental change in the way the world deals with the most elementary human rights violations. The two Tribunals currently operating under the auspices of the UN, in The Hague and Arusha (for Rwanda), are an attempt to show that achieving justice for the victims of war crimes, of crimes against humanity and of massive political persecution is not simply a matter of satisfying the grievances of individual victims. By stating that they will pursue the perpetrators of such acts to the ends of the earth, the Tribunals are saying that impunity – whether a result of amnesty or amnesia – generates unacceptable fear and a sense of betrayal not just in the victims but in all those around them. If these experimental Tribunals succeed, they will mark a decisive step towards the creation of a permanent International Criminal Court, which could be a standing caution to politicians tempted by a policy of mass criminality.

The story of the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY), as told by Michael Scharf, a one-time US appointee at the UN and a Tribunal insider, is full of unexpected and telling ironies. Not the least of these concerns the involvement of the US Administration, which had previously been so worried about the possibility of having to hand over its own officials to international jurisdiction, for acts such as the bombing of Tripoli, or the invasions of Panama and Grenada, that it had blocked the quite successful efforts of smaller countries like Trinidad (who were attempting to deal with their narcotics problem) to move towards the founding of an International Criminal Court. The US, having little need for the UN, is sceptical of its institutions, unlike Britain and France, who, by promoting the UN’s role, contrive to emphasise their own importance on the world stage. In relation to Yugoslavia, however, the idea of a UN Tribunal allowed the US to appear to be throwing itself into the fray against the warmongers without having to commit a single person on the ground. The end result is a paradoxical situation whereby the UN, the body most responsible for having made the international community look spineless in the face of Serb and Croat terror, has produced a subsidiary institution which may be the most important legacy of the war.

In one way this is history repeating itself, for in 1945 it was US pressure that led to the creation of the International Military Tribunal which sat at Nuremberg. During the Yalta Conference, Stalin proposed a toast ‘to the quickest possible justice for all German war criminals’: ‘I drink to the justice of the firing squad ... Fifty thousand must be shot.’ At that stage Churchill shared Stalin’s sentiments and was prepared to see the Nazi leaders given summary justice. It was the arrival at the White House of Roosevelt’s successor, Harry Truman, that put all such plans on hold. Truman was determined that there should be a real, not a pre-determined, trial, one containing that element of risk which is indispensable if the fairness of criminal proceedings is to be established.

The precedent of Nuremberg was evoked by Madeleine Albright at the meeting of the UN Security Council in February 1993 which decided to establish an international Tribunal. She tried to lay to rest any ambivalent associations: ‘this will be no victor’s Tribunal. The only victor that will prevail in this endeavour will be the truth.’ Fine words, but little practical help to the team working on the original statute for the ICTY. They knew very well that while justice was undoubtedly done by the representatives of the Allies in 1945, it was not always in compliance with the law or legal standards of the time.

It is true, as Ann and John Tusa argue in their definitive study of the Nuremberg trials, that the court was deliberately constituted as a military tribunal and was therefore exempt from the rigorous conditions of a civil court. There can be little excuse, however, for its adoption of a mere 11 rules of procedure, all of which the Tribunal’s Statute placed beyond judicial challenge. As a result, the defendants were not allowed to question the decision by which they were forbidden access to the prosecution’s vast archive of official papers, nor challenge the ruling whereby they were denied the tu quo-que defence (that in some cases the Allies had committed similar war crimes). There was no higher court to which, if convicted, they would have a right of appeal and, as several later discovered, if acquitted they were not protected against a re-trial by their own compatriots in a lower court. These failings together gave substance to the otherwise shallow accusation of ‘victors’ justice’, which gained even more force when both the trials and the de-Nazification process were halted after the break with Stalin and it became expedient to cultivate the loyalty of the German middle class. If the whole point of Nuremberg was to institute the rule of law after 12 years of lawlessness, then to stop the prosecution of Nazi criminals for shortterm political gain was to undermine the lesson so expensively being taught to the German people – that in a democratic society the autonomy of the legal process provides a defence against the whim or convenience of state power.

To argue today, however, as they do, above all, in Serbia and Croatia, that ICTY represents the more dubious aspects of the Nuremberg precedent and is a mere arm of American global domination is misleading. It is doubtless unfair that international criminal law is being enforced in the cases of the former Yugoslavia and Rwanda and not in those of Chechnya or Tibet. Such selectivity damages the claim that the Tribunals embody the principle of universal justice. And it is hardly ideal that their work can be halted without notice on the orders of the Security Council, for this means that the courts are dependent on an executive power.

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