Foreword: war tales and war trials.

• Author: Wald, Patricia Mcgowan

INTRODUCTION

In 1999, after more than twenty years as a federal judge, I became a trial judge at the International Criminal Tribunal for the former Yugoslavia. Up to that time, my knowledge of war had been derived from the dozens of books and movies I had read and watched as I lived through World War II, the Korean War, Vietnam, and the two Gulf Wars. Every day for the next two years, I listened to the heart-wrenching stories of Balkan survivors of genocide, massacres, prison camps, and planned executions. I remember particularly one compelling woman who testified that in a single fateful week she had lost a husband, son, father, brother, and twenty-six male relatives in the genocide at Srebrenica. She announced to the court: "We wish him [the defendant general] a death penalty, for him to disappear from the face of the earth." (1) An Egyptian judge serving alongside me described the evidence in that case as

scenes of unimaginable savagery: thousands of men executed and buried in mass graves, hundreds of men buried alive, men and women mutilated and slaughtered, children killed before their mothers' eyes, a grandfather forced to eat the liver of his own grandson. These are truly scenes from hell, written on the darkest pages of human history. (2) In this foreword, I will compare my experiences as a judge on the International Criminal Tribunal for the former Yugoslavia, and the work of war crimes tribunals generally, with a few of the recurrent themes in epic tales of war. Books and trials strive to educate and to persuade their audiences of the barbarity of war and its antipathy to the most fundamental norms of a humane society. (3) War crimes tribunals began with Nuremberg and have proliferated in the past fifteen years. These tribunals were established to try and to punish individuals for violations of international humanitarian law ("IHL")--the so-called "law of war," itself only a century old, which sets out "rules of engagement" for belligerent states and internal warring groups.

1. WAR NOVELS

   But do war crimes tribunals in any meaningful way address the profound message of cynicism and rage at the futility, brutality, and arbitrariness of war that permeates most enduring novels of the genre?

   There is no question but that the war writers are the pessimists in the equation: they see little merit in trying to salvage justice, honor, closure, or reconciliation from mindless conflict. The tribunalists, however, while sharing the writers' views on the inevitability of war, move cautiously and haltingly to alleviate some of its most abhorrent practices in the persistent hope that the introduction of a semblance of rules and order can help alleviate the futility and fury that scorch the novelists' prose.

   For example, Joseph Heller's soldier protagonist, Yossarian, a combat bomber during World War II, thought it a "vile and muddy war.... Just about all he could find in its favor was that it paid well and liberated children from the pernicious influence of their parents." (4) Heller's characters express their rage at the random carnage of a war which seemed to draw no distinction between enemy and friend, guilty and innocent. After being ordered to bomb a road full of friendly villagers, the soldiers plead:

   "Can't we even tip them off so they'll get out of the way?"

   "They won't even take shelter.... They'll pour out into the streets to wave when they see our planes coming, all the children and dogs and old people. Jesus Christ! Why can't we leave them alone?"

   "I don't know," Major Danby answered unhappily. "I don't know. Look, fellows, we've got to have some confidence in the people above us who issue our orders. They know what they're doing."

   "The hell they do," said Dunbar. (5)

   Articulating a similar cynicism, Vonnegut described his own experiences with wartime justice during the Allied fire bombing of Dresden: "The irony is so great. A whole city gets burned down, and thousands and thousands of people are killed. And then this one American foot soldier is arrested in the ruins for taking a teapot. And he's given a regular trial, and then he's shot by a firing squad." (6)

   Running through all of the classics is anger at the brutality and futility of war and at war's disproportionate toll on the soldiers and civilians at the bottom of the heap. Hemingway's Farewell to Arms is typical:

   I was always embarrassed by the words sacred, glorious, and sacrifice and the expression in vain. We had heard them, sometimes standing in the rain almost out of earshot, so that only the shouted words came through, and had read them, on proclamations that were slapped up by billposters over other proclamations, now for a long time, and I had seen nothing sacred, and the things that were glorious had no glory and the sacrifices were like the stockyards at Chicago if nothing was done with the meat except to bury it.... Abstract words such as glory, honor, courage, or hallow were obscene beside the concrete names of villages, the numbers of roads, the names of rivers, the numbers of regiments and the dates. (7) The sentiment is not peculiarly American. The French writer Sebastien Japrisot laments in A Very Long Engagement:

   I can wait. I'll keep waiting, for as long as it takes, for this war to be seen in everyone's eyes for what it always was, the most filthy, savage, useless obscenity that ever there was. I'll wait until the flags stop flying in November in front of the monuments to the dead, I'll wait until the Poor Bastards at the Front stop gathering, wearing their damned berets and missing an arm or a leg, to celebrate what? (8) And Nobel Prize winner Ivo Andric, in The Bridge on the River Drina, chronicles centuries of Balkan wars against the backdrop of a solitary bridge in one small town, and identifies the terrible undoing of human intercourse that civil war typically brings:

   [T]hen began the real persecution of the Serbs and all those connected with them. The people were divided into the persecuted and those who persecuted them. That wild beast, which lives in man and does not dare to show itself until the barriers of law and custom have been removed, was now set free.... As has so often happened in the history of man, permission was tacitly granted for acts of violence and plunder, even for murder, if they were carried out in the name of higher interests, according to established rules, and against a limited number of men of a particular type and belief. (9) The mood in these novels is fatalistic about the inevitability of war and its profound yet haphazard insults to the human condition. "So it goes," (10) Vonnegut famously punctuated death in war. In contrast, the purpose of the war crimes tribunals and IHL has been to inject into the real-life killing fields some elements of restraint, some limits on whom, how, and where the human assaults can take place. Is that a fool's errand, a cynical facade to give cover to the true immorality of war?

   I don't think so. War is not waged by born criminals but by ambitious and ruthless leaders and by ordinary men and women executing their orders, or themselves caught up in the emotional rush of nationalistic or factional dogma. The injection of a realistic threat of personal punishment for known violations of a code of wartime behavior does have potential for curbing atrocities. The tribunals are still young and that potential has not been fully realized, but for us to abandon the cause so early makes little sense to me.

2. WAR CRIMES TRIBUNALS: A HISTORY

   War does, as novelists like Andric recount, too often rip the thin veneer off civilization and convert ordinary, law-abiding people into rampaging killers. (11) Some legal commentators have suggested that for that reason, crimes committed in the vortex of war should not be tried and punished like ordinary crimes at all. In war, they say, an entire nation may turn criminal:

   How can anyone start to assign a specific amount of responsibility to each one of the hundreds of thousands--probably millions--of people who took part in [the Rwandan massacres] ...? How, in short, can one apply conventional methods of legal judgment to the giant mass of the Hutu people who were caught up in a profoundly abnormal reality? ... Millions of men and women [lose], for some period of time, all recognition of the humanity of their victims, and even of their own self-respect and humanity. (12) This fatalism, however, has not sufficed for a majority of international law experts or humanitarians. Hannah Arendt sums up their determination to put boundaries on human predation even in time of war: "[I]t seems to me ... we have no tools to hand except legal ones with which we have to judge and pass sentence on something that cannot even be adequately represented either in legal terms or in political terms." (13)

   My own impression while serving as a judge at the Yugoslav Tribunal was that the most serious war crimes committed by the middle- and upper-level defendants were done with aforethought and for strategic reasons, not in the heat of battle. The same is true for the terrible outrages perpetrated by prison camp personnel on prisoners. In one of the camp trials detainees testified that they had to pass through a gauntlet of guards who beat them on their way into and out of the eating area:

   The bread would fly out of their hands. They had very little time to come in, get their food, eat it, and go out, and all this would be accompanied by blows. Everyone tried to hold on to his eighth of a loaf of bread.... [W]hen the blows fell, they would open their hands and the bread would fall out of their hands. (14) This kind of callous cruelty far from the battlefield cannot or should not in my view be readily discounted by group hysteria.

   But, as the war novelists illuminate, war crimes can range from the triviality of Vonnegut's pillaged teapot to the cluster bombing of 139,000 Dresden residents, the cold-blooded execution of 8,000 young men from...