Book Reviews: 1. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals 2. Kosovo--War and Revenge 3. Ordeal By Sea: The Tragedy of the U.S.S. Indianapolis 4. Intervention: The Use of American Military Force in the Post-Cold War World 5. Carnage and Culture Landmark Battles in the Rise of Western Power

• Author: Major Susan K. Arnold
• Pages: 05

2002] BOOK REVIEWS 195

STAY THE HAND OF VENGEANCE:

THE POLITICS OF WAR CRIMES TRIBUNALS1

REVIEWED BY MAJOR SUSAN K. ARNOLD2

Justice Robert Jackson approached the podium in Courtroom 600 and glanced at his opening statement. His secretary had affixed a note that said "Slowly" to remind the Justice, acting as an allied prosecutor in Nuremberg, to speak slowly so that the simultaneous translator could keep pace with him.3 He began his famous opening statement.

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.4

The world sat on the edge of its seat and all eyes were on Justice Robert Jackson as he delivered his opening salvo before the International Military Tribunal in Nuremberg. The Nuremberg Tribunal is the watermark by which all other efforts at war crimes trials are judged. Gary Bass's examination of war crimes trials is unique because he takes the reader through the political process behind the establishment of war crimes trials. His analysis stops when the prosecutor reaches the podium for his opening statement. What happens in the courtroom is a legal matter, and Bass is

concerned with the political decisions that make a trial possible, impossible or impractical.

Bass shows the reader that Nuremberg was not the first effort at a major war crimes trial. He dispels the myth that Nuremberg "invented" the charge of "crimes against humanity." Jackson's prose was brilliant and it begs to be quoted, recited or used as a title for a book. But Nuremberg, as Bass shows us, was neither the first, nor the last war crimes trial, although he persuasively argues that it was the best. It might be dismissed as victor's justice, but as Bass cleverly says, if you have the right victor, then victor's justice can still be justice.5

Bass's main premise is that a war crimes trial is a political, not a legal process. His book is meticulously researched and his argument is persuasive. The main fault with his argument is that it is overstated and overly ambitious. He does not stop with the claim that war crimes trials are a political rather than a legal decision. He goes on to articulate five propositions that he claims are applicable, in varying degrees, to war crimes trials. His argument is logical and persuasive within the confines of the introduction. When he applies these propositions to the historical examples that he highlights, however, they are too forced to be persuasive.

The book is organized into seven parts. In his introduction Bass describes the five propositions that he claims apply to each war crimes trial. Five historical chapters follow the introduction, each focusing on a different war crimes trial: St. Helena in 1815 for the Bonapartists; Leipzig following WWI for the Kaiser and key Germans; Constantinople, also following World War I, for the Turks responsible for the slaughter of Armenians; the International Military Tribunal in Nuremberg; and, finally, the

International Court for the Former Yugoslavia. These historical chapters are followed by an Epilogue.

In the introduction Bass states, repeats and adjusts his principal theme. At one point he says that the "core argument of this book . . . is that some leaders [have war crimes trials] because they, and their countries, are in the grip of a principled idea."6 That principled idea is the legalism found in liberal states. At the close of the introduction, he makes another claim, which really is the main theme of his book. The book, Bass says, "is mostly interested in the politics that underpin (and undermine) international law."7 This more modest statement should have been his main theme. Politics drives an international war crimes trial, and there are too many factors involved in international politics to allow Bass's five propositions to apply to every scenario over the course of a few hundred years. These propositions certainly reflect factors behind the political process, but Bass should have asserted his more modest proposal as his main theme.

After reading Bass's book, the modern lawyer should realize that politics, not the "law," controls until the war crimes trial actually begins. Every aspect of an international trial will be driven by politics, and the international lawyer cannot expect to extrapolate domestic criminal experiences into the international arena. With that said, however, Bass should have been more restrained as he outlined his argument in the introduction. Experienced prosecutors know that it is a fatal mistake to promise evidence in an opening statement and then fail to deliver the evidence during the trial. This is a self-inflicted wound; Bass sets the reader's hopes high with his five propositions, but fails to deliver the evidence.

Of the five propositions that Bass outlines, he really proves only two in the body of the book. This review examines each of these propositions in the order that Bass presents them.

Bass's first proposition states that "it is only liberal states, with legal-istic beliefs, that support bona fide war crimes tribunals."8 This is certainly his strongest point, and he easily supports it with all of the cited historical examples. Although lawyers can become paralyzed in their own legal reasoning,9 Bass shows that liberal, legalistic states refuse to abandon concepts of due process and evidentiary standards even when it means risking

acquittals. But it is also this commitment to legalism that makes the trial a legitimate apparatus for administering justice to war criminals-these are not totalitarian show trials.10

Bass's second proposition is specious. He claims that "even liberal states tend not to push for a war crimes tribunal if doing so would put their own soldiers at risk."11 Fair enough, but on the next page, when Bass goes on to describe this proposition, he uses a catchy, but inapposite illustration. Bass calls this second proposition the "Scott O'Grady phenomena." Bass articulates this proposition by juxtaposing America's Herculean effort to rescue a downed Air Force pilot with its refusal to intervene on behalf of the people of Srebrenica. All of this is true, interesting, and well written, but it fails to support his second proposition because it is unrelated to states' decisions to hold war crimes trials.12

Despite this detour, Bass's second proposition is still relevant. It would have been interesting for Bass to juxtapose the domestic political decisions with international political decisions in this regard. Specifically, domestic law enforcement officers are routinely placed in dangerous circumstances to apprehend fugitives. Society expects them to do exactly that. Because the domestic criminal offender is a threat to domestic society, pursuit of that offender is a self-centered political decision. In the international arena, the decision to apprehend and try a suspect is often a purely moral, political decision. Slobodan Milosevic poses no threat to the United States of America. He is not a murder suspect who is free to walk

down Main Street USA. The political impetus to put him on trial is strictly moral; it is the right thing to do.13

Bass's third proposition is the weakest of the five. He states that "there is a distinctly self-serving undertone to liberal campaigns for international justice,"14 or as he restates it, "Putting Citizens Before Foreigners."15 The problem with this proposition is that Bass's historical examples demonstrate the opposite. These trials involve nations trying to protect others, rather than their own citizens. Constantinople addressed the slaughter of Armenians by the Turks, and the British pushed for the trial; the Americans orchestrated Nuremberg; and The Hague Tribunal represents an international community joining to condemn mainly Serbian practices in Yugoslavia. It certainly seems like states would always act in their own citizens' interest, but this is not borne out by Bass's examples.

Bass's fourth proposition is related to the third, and he proves this proposition quite effectively. He claims that "liberal states are most likely to support a war crimes tribunal if public opinion is outraged by the war in question."16 He would have been better off if he stopped there, but Bass goes on to say that "they are less likely to support a war crimes tribunal if only elites are outraged."17 Bass's defense of this second statement is imprecise. In the Nuremberg chapter of the book, Bass references public opinion polls that show a majority of Americans favored "punishment" for the Germans.18 Americans did not want to have a trial, they wanted the Nazis executed, enslaved, or tortured.19 It is not necessary to have general public outrage; it is sufficient, politically, to have only elite outrage. Punishment and trial are two completely different ideas. Right now in America, the vast majority of citizens want to punish Osama Bin Laden, but that does not mean they want to see him in federal court. After World War II, many citizens and leaders favored the summary execution of the Nazi lea

ership. Punishment does not always equate to a trial, especially when a trial has uncertain results.

Even with that discrepancy, Bass's point about outrage is perceptive. Outrage provides the political will, the momentum for such an event. Proposition one, the legalism of liberal states, must join proposition four, outrage, if there is to be any action. As Bass sums up, "legalism without outrage could result in a dreary series of futile legal briefs."20...