Stay the Hand of Vengeance: The Politics of War Crimes Tribunals.

• Author: Landsman, Stephan

STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS. By Gary Jonathan Bass. Princeton: Princeton University Press. 2000. Pp. 402. $29.95.

THE MEMORY OF JUDGMENT: MAKING LAW AND HISTORY IN THE TRIALS OF THE HOLOCAUST. By Lawrence Douglas. New Haven: Yale University Press. 2001. Pp. xiii, 318. $35.

FOR HUMANITY: REFLECTIONS OF A WAR CRIMES INVESTIGATOR. By Richard J. Goldstone. New Haven: Yale University Press. 2000. Pp. xxiii, 152. $18.50.

CRIMES AGAINST HUMANITY: THE STRUGGLE FOR GLOBAL JUSTICE. By Geoffrey Robertson. New York: The New Press. 2000. Pp. xxxiv, 554. $30.

INTRODUCTION

In The Hague, Slobodan Milosevic is on trial for crimes committed in Bosnia, Kosovo and Croatia; (1) in Arusha, Tanzania, Jean Paul Akayasu, a Rwandan bourgmestre, was convicted of genocide; (2) in London, Augusto Pinochet was detained and adjudged amenable to an arrest warrant issued by a Spanish magistrate for acts of torture carried out in Chile; (3) in Belgium, a Hutu Roman Catholic former mother superior was convicted of complicity in the Rwandan genocide; (4) and in Rome a treaty was signed commencing the process that will result in the creation of the International Criminal Court ("ICC"). (5) All these events underscore the startling growth of efforts to establish a worldwide criminal process capable of punishing heinous crimes ranging from genocide to grave breaches of the Geneva Conventions. Though the pace of change has been dramatic over the past few years, the forces driving it have been building up for at least half a century.

Each of the four books under review is, in one way or another, designed to address the process of transition from a regime of strict national sovereignty and local prosecution of criminal acts to an international one in which major abuses can and will be punished in courts around the world. Two of these volumes, Gary Bass's, Stay the Hand of Vengeance, and Lawrence Douglas's, The Memory of Judgment, provide excellent scholarly analyses of various historical aspects of the growth of international criminal prosecution. A third, Justice Richard Goldstone's, For Humanity, provides the recollections of one of the architects of transformation about his work as chief prosecutor for the International Criminal Tribunal for the Former Yugoslavia ("ICTY") (6) and the International Criminal Tribunal for Rwanda ("ICTR"). (7) The fourth book, Geoffrey Robertson's, Crimes Against Humanity, is far weaker than the others, and presents an idiosyncratic and polemical assessment of some of the matters addressed in the other volumes. Part I of this Review examines some of the critical events that have contributed to the current upsurge in international criminal prosecutions. Then each of the four books is discussed. The Review concludes with two suggestions, one a potentially useful means of explaining why change has taken place, the other an exploration of the role of truth commissions in the prosecutorial effort.

1. THE PAST AS PROLOGUE--TRACING THE UPSURGE IN INTERNATIONAL CRIMINAL PROSECUTIONS

   While precedent-establishing international prosecution of grave misconduct had to await the conclusion of the Second World War, there were rumblings in Europe about the need for some international mechanism to punish the serious misdeeds of military leaders and their minions a good deal earlier. In 1815, there were discussions about prosecuting Napoleon in response to his efforts to subjugate all of Europe by force of arms. (8) Eventually, the British concluded that such a trial was not worthwhile, although several of Bonaparte's most famous subordinates, Michel Ney and Charles de la Bedoyere, were tried and convicted in French courts. (9)

   The idea of using legal prosecution to punish grave misconduct during armed conflicts was revived during the First World War in response to two very different problems. The first of these was the Turkish program carried out during 1915 to murder the Armenian minority within its borders. (10) The second was the allegedly unlawful tactics adopted by Kaiser Wilhelm II and his generals in their efforts to secure a German victory over the Allied forces arrayed against them. (11) The British were the chief proponents of criminal prosecutions in both cases.

   1. Armenians and Turks

      After the Allied victory over the Ottoman Empire in 1918, Britain pressed the newly installed Turkish government to prosecute, while His Majesty's Government moved to incarcerate those Turkish leaders deemed responsible for the slaughter of as many as 1,000,000 Armenians in 1915. This British effort was fueled by strong domestic antipathy toward the Muslim Turks for their unspeakable barbarity toward the Armenian Christians. A large number of Turkish leaders were seized, but the criminal process bogged down both because of proof problems and concerns over the fairness of the proceedings. As time dragged on, prosecutorial momentum was lost. Eventually, the British dramatically reduced the size of their occupation force in the Ottoman Empire. This had the effect of reducing British authority and leverage with respect to prosecutions. A group of ardent Turkish Nationalists (the "Young Turks"), led by Mustafa Kemal Ataturk, seized on the issue of prosecutions as one of several grievances warranting rebellion against the post-war Turkish regime. During the ensuing civil war, the Nationalists took British hostages. Rather than risk the hostages' lives or commit British troops to combat with the Nationalists, the British government decided to abandon its insistence upon prosecution. The delay in mounting trials, along with Turkish backlash against British intervention and a lack of complete British military dominance, all worked to undermine legal action against what may have been the first twentieth century genocide.

   2. Pursuing the Kaiser

      The immense blood letting on the Western Front, the wide-ranging use of submarine warfare, the Zeppelin attacks from the air on civilian targets, the use of poison gas, and disregard for the neutral status of a number of nations all fed an Allied clamoring for the prosecution of the leaders of the German war effort, most particularly the German head of state, Kaiser Wilhelm II. The Kaiser, however, fled Germany at the end of the war and took refuge in the Netherlands, which granted him asylum. The British and French were outraged and demanded that Wilhelm be turned over to an international tribunal for prosecution. These demands were resisted not only by Germany and the Netherlands, but also by the United States, which proposed an international commission of inquiry rather than a trial. In the end, the Kaiser was not prosecuted. Instead, Germany agreed to a small number of war crimes trials to be held before the German Supreme Court in Leipzig. These cases were a fiasco--either the accused were acquitted or given incredibly lenient sentences. Since the Allies had not occupied Germany at the end of the war, they had no recourse short of invasion. This choice proved unpalatable, and there the question of prosecution ended, but not before the experience soured a generation of British officials (including Winston Churchill) on international prosecutions and embittered Germans not only against the Allies, but against the newly established Weimar Republic as well.

   3. Nuremberg

      Thus, it was in a historical context of failure and frustration that debate about prosecution arose during World War II. As the tide of battle turned against the Nazis, discussions began about post-war punishment of war criminals. In 1943, representatives of Great Britain, the Union of Soviet Socialist Republics ("USSR"), and the United States met in Moscow and declared:

      [T]hose German officers and men and members of the Nazi party ... who have been responsible for ... atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries. The above declaration is without prejudice to the case of the major war criminals whose offenses have no particular geographical localization and who will be punished by the joint decision of the governments of the allies. (12) While this declaration did not settle precisely how war criminals would be dealt with, it did contemplate prosecution at the scene of the crime for lesser criminals as well as some as yet unspecified process for the newly minted category of "major war criminals."

      By mid-1944, the end of the war was in sight and the debate about the handling of war criminals intensified. In light of their World War I experience the British, particularly Churchill, pressed for summary execution of major war criminals. Although some factions of the American government were sympathetic to this idea, others (centered around the Secretary of War, Henry Stimson) vigorously opposed any solution that did not "`embody ... at least the rudimentary aspects of the [American] Bill of Rights, namely notification of the accused of the charge, the right to be heard and, within reasonable limits, to call witnesses in his own defense.'" (13) Surprisingly, even Stalin opposed the British on summary executions, declaring "`[t]here must be no execution without trial otherwise the world would say we were afraid to try them.'" (14) What Stalin may have had in mind, however, was not American-style trials but "show" trials of the sort he stage-managed in Moscow during the 1930s (15) and the Soviets used in Kharkov in December 1943 to convict three Germans and a Soviet accused of atrocities. (16)

      After long and difficult negotiations, the American approach was adopted and the Allies agreed, in the so-called London Agreement and Charter, to create an International Military Tribunal ("IMT") to try leading Nazi war criminals. (17) Although the tribunal bore the name "Military," it was not designed or intended as a court martial but rather as a...