"Courts try cases, but cases also try courts."
-- Justice Robert Jackson(1)
In 1993 and 1994, following allegations of mass atrocities, including systematic killings, rapes, and other horrific forms of violence in Rwanda and the territories of the former Yugoslavia, two ad hoc international war crimes tribunals were established to prosecute individuals for grave violations of international humanitarian law, including genocide.(2) As might be expected, advocates for the creation of these entities -- the first international courts to prosecute individuals under international law since the trials at Nuremberg and Tokyo after World War II -- aspired to grand goals inspired by, but extending far beyond, the pedestrian aims of ordinary criminal prosecutions. Those who pushed for the creation of these tribunals argued that, as with earlier trials of major Nazi and Japanese wartime leaders, properly conducted international criminal trials, brought by and on behalf of the international community, would: threaten those in positions of power to deter further violence; make possible atonement for the perpetrators and honor the dead; provide a mechanism to enable victims and their families to receive needed psychological relief, identify remains, restore lost property, and otherwise help heal wounds; channel victims' thirst for revenge toward peaceful dispute settlement; affirm the Nuremberg Principles at the international level while restoring faith in the rule of law generally; tell the truth of what occurred, thereby preserving an accurate historical account of barbarism that would help prevent its recurrence; and, perhaps most important, restore the lost civility of torn societies to achieve national reconciliation.(3)
This article reexamines these goals in light of the judgment issued after the first full trial at the Yugoslav tribunal, the case against the Serb former cafe owner, Dugan "Dusko" Tadid.(4) In my view, the form, structure and content of this historic judgment suggest adherence to what Mark Osiel has characterized, in other contexts, as a model of closure? Under this model, inspired by the Nuremberg trials and subsequent criminal prosecutions for "administrative massacre[s]" in national courts, it is assumed that such proceedings will draw upon "an already-existing consensus" regarding "first principles" and evoke in participants and observers a sense of social solidarity premised on the "common values" of Emile Durkheim's "collective conscience."(6)
With respect to the Balkans and Rwanda, advocates of these prosecutions start from the premise that such trials "assign guilt for war crimes to the individual perpetrators, rather than allowing blame to fall on entire groups and nations."(7) Tribunal advocates, commonly members of the "invisible college" of international lawyers,(8) generally assume that only individual, not collective, attribution of responsibility can terminate historical cycles of inter-group bloodletting; that only by bringing individuals to the dock will victims and survivors cease to "cry out for justice against the group" and find closure.(9) In the words of a former prosecutor at the Yugoslav tribunal, Minna Schrag, by finding identifiable individuals accountable, the rest of the community is not "associated with collective guilt...," and generations do not grow up saying "it's the Serbs or the Croats or any other group that did this to my father...."(10) It is also assumed that, by punishing the guilty -- and only the guilty -- all of the other Nuremberg-inspired goals enumerated above will thereby be advanced.
The recipe for emotionally cathartic closure as the mechanism by which all these diverse goals are achieved is commonly grounded in a victim-centered approach that blurs the lines between criminal punishment and civil redress and between utilitarian and retributivist rationales for punishment.(11) It is argued that international investigations and criminal prosecutions will permit victims' families and survivors to put the past to rest; that victims will channel their anger and vent their frustrations through their testimony at trial because, through participation as witnesses, they will be able to "reassert their sense of control and autonomy," enhance their dignity, "lessen their isolation, and increase their feeling of belonging to a community," and even "find some meaning in their victimization."(12) The goal of using such trials to preserve an accurate collective memory is also based on the model of closure. It is said that war crimes trials permit entire societies to "draw[ ] a clear line between past and future, allowing the beginning of a healing process."(13)
In this article, I argue that the trial of Dusko Tadic was conducted on the premise that Nuremberg-inspired goals would be furthered through the invocation of shared values in four distinct areas: (1) preservation of "common history judged by common standards";(14) (2) application of "objective," "apolitical" rules of law; (3) adherence to a "level playing field" for the defendant; and (4) respect for the needs of victims. I show that Tadic's judges sought, first, to render a verdict containing a definitive and enduring historical account that would be accepted as accurate, balanced, complete and fair by all sides, including Serbs, thereby helping to produce closure with respect to collective memory. Second, the judges sought to remain above politics, in the mold of judges in liberal states who purportedly act as mere interpreters of politically neutral rules of law evenhandedly and objectively applied, regardless of the political aspirations or the ethno-religious status of the parties involved, thereby eliciting a satisfactory consensus based on the application of the rule of law. Third, they attempted scrupulously to adhere to fair approaches to the admission of evidence and its careful weighing under the presumption of innocence in order to elicit universal confidence in the procedural fairness accorded the defendant. Finally, they sought to provide closure to Tadic's victims by according them a prominent role in the proceedings.
Thereafter, I examine whether the judges' efforts succeeded in these respects, using the conclusion of the first international war crimes trial in fifty years as an occasion to reexamine the didactic functions of such trials. I contend that the model of closure, and certainly the version suggested by the Tadic judgment, is flawed and may even undermine the grand aims articulated for the Yugoslav and Rwanda tribunals. Yet I do not conclude that international war crimes trials ought not be attempted generally or that the establishment of these two ad hoc tribunals was necessarily a mistake. Rather, this article advances a different set of justifications for these prosecutions, or at least a different set of criteria by which to judge their "success." I propose here that these prosecutions not be judged on the unattainable premises of closure, but on Mark Osiel's alternative concept of "civil dissensus" wherein trials stimulate further dialogue regarding the issues on which they focus.(15)
Part I identifies how the model of closure has influenced the establishment, structure, and operation of these tribunals. Part II indicates how the Tadic judgment reflects that model. Part III shows how Tadic's trial and conviction fall short of meeting closure's demands in four vital respects, and concludes with more general reasons for skepticism about the likelihood of reaching closure through ad hoc international tribunals for Rwanda and the former Yugoslavia. Part IV argues for a discursive justification for these tribunals and indicates, preliminarily, some of the implications of this alternative approach.(16)
CLOSURE AND THE NEW AD HOC TRIBUNALS
International lawyers have advanced many reasons why the international polity, or at least its most reputable representative, the United Nations, should punish basic affronts to human dignity.(17) They claim that the legal, political, and even moral choices have been, to a considerable degree, settled by international law as "shaped by the requirements of the international community."(18) They argue that such a result is anticipated by the U.N. Charter and its provisions for handling threats to and breaches of the international peace, and that the U.N., or at least its post-cold war Security Council, now seems politically willing to establish such judicial fora when the failure to prosecute presents a sufficient threat to the international order.(19) These arguments have been premised on the goal of generating "closure" for victims, defendants, and observers both inside and outside the regions affected. The model of closure, considered as a kind of Weberian "ideal type,"(20) has provided the single, coherent rubric to justify ad hoc international tribunals.
The policy justifications offered for international war crimes tribunals build from the premise, discussed above, that public criminal trials absolve those who are not in the dock. Given the impracticality of national venues for such trials as well as the comparative merits of U.N. fora, advocates for these tribunals conclude that international criminal proceedings are best able to unite spectators -- whether or not involved in the conflict -- in collective revulsion against the barbarism of a few and in support of the civilized nature of the trials themselves. International convictions, in short, are viewed as best able to provide the cathartic group therapy necessary to reestablish lost national and international consensus and, therefore, peace.(21) It is assumed that everyone will find the judgments and verdicts of an international bench legitimate and that such universal forums, issuing verdicts with universal legitimacy, will restore lost civility -- at least for the war-torn countries directly at issue and, over the longer term, for the entire international community.