Victor's justice, selfish justice - International Justice, War Crimes, and Terrorism: The U.S. Record

Social Research, Winter, 2002 by Gary Bass

SOON before his arrest in Belgrade, former Yugoslav President Slobodan Milosevic called the international criminal tribunal at The Hague "an illegal and immoral institution, invented as reprisal for disobedient representatives of a disobedient people--as once there were concentration camps for superfluous peoples and people" ("Toppled Yugoslav Leader," 2001). Now that he is on trial, enjoying the full panoply of United Nations protections, Milosevic has hardly softened his tone. He browbeats Kosovar witnesses, rages about Islamist terrorism, accuses NATO of a Nazi plan for world domination, and complains endlessly about victor's justice. Yet Milosevic's criticism of victor's justice has found a certain echo--not just among aggrieved Serb nationalists, but also in the West from leftists who dislike American power and from rightists who dislike international institutions (Djilas, 2001; Mandel, 2001; Avineri, 2001; Krauthammer, 2001).

This paper advances three arguments. The first is a qualified historical defense of victor's justice--in other words, that what Milosevic sees as victor's justice we might reasonably see as a measured, mediated, and multilateral exercise of NATO power. Having made that partial defense, this paper will proceed to consider two characteristic failings of past efforts at international justice, failures that are not just typical of America but also of other countries. These two points are, briefly, that it is not only post-Vietnam and post-Somalia American presidents who have been deeply reluctant to risk their soldiers in the pursuit of war criminals; this reluctance runs much deeper, and is apparent in the foreign policy of many countries other than America. Finally, there is a distinct selfishness underlying many of war crimes tribunals; that is, states are more likely to pursue punishment of war criminals when the victims were their own citizens, not foreigners.

Victor's Justice

The mechanism of war crimes trials is one that Western publics are so used--to doubly so after Nuremberg--that it is easy to forget how unwieldy they appear to foreign-policy decision makers. The punishment of defeated enemies is a matter of the highest importance, quite literally of war or peace. If it is done well, as with Germany after World War II, it can help build a stable world order. If it is poorly done, as when Napoleon escaped from Elba in 1815 and reignited a final, stunning round of the Napoleonic Wars, it can be utterly disastrous.

There is also a moral argument against trials, not because trials are too punitive, but because calling a war crime a crime does not fully capture the evil nature of these acts. Henry Morgenthau, Jr., President Franklin Delano Roosevelt's treasury secretary--the only Roosevelt cabinet member who worked hard to try to save Europe's Jews from the Nazis--was so enraged that he simply wanted to shoot the top Nazis, as many as 2,500 of them. Nuremberg's founders, mostly at the War Department, could be more legalist because they cared less about the Holocaust than Morgenthau did. As Hannah Arendt wrote while watching Nuremberg: "For these crimes, no punishment is severe enough. It may well be essential to hang Goring, but it is totally inadequate. That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems. That is the reason why the Nazis in Nuremberg are so smug." (Arendt to Jaspers, 1992; see also Minow, 1998: 121-122)

Those are some reasons not to automatically want trials (although on balance I remain an advocate of trials). When the crucial question of what to do with defeated enemies is turned over to a victorious state's lawyers, those lawyers by definition will not frame the problem in political terms. The moral and political problem here is that legal methods, of course, do not always serve substantive justice. These lawyers are less likely to think in terms of political consequences than in legalistic terms of evidence, precedent, and procedure. Politicians who choose to impose war crimes trials will have to worry about smart defense lawyers, embarrassing revelations about their own government's complicity (which is why Milosevic wants to call former President Bill Clinton and former Secretary of State Madeleine Albright as witnesses), quirky independent judges, standards of evidence. This can make it impossible to prosecute the war criminals that the victors want to, even when they are truly criminal and richly deserve punishment. The British high commissioner in Constantinople complained after World War I that one Turk "was undoubtedly deeply implicated in the crimes of which he is accused, and his moral responsibility is enormous. There is, however, a lack of definite proof against him, and it will probably be a matter of considerable difficulty to prove his individual responsibility" (Calthorpe to Balfour, 1919). The German war crimes defendants in Leipzig in 1921 pleaded that they had just been following orders, and the court accepted it. The International Criminal Tribunal for the Former Yugoslavia still has not managed to gather enough evidence to publicly indict one of the most notorious Serb paramilitary leaders, Vojislav Seselj, and took an agonizingly long time to indict Arkan, perhaps an even more notorious Serb paramilitary murderer. Part of the reason why Milosevic could score some early political points while on trial at The Hague is that the prosecution started with the Kosovo indictment, where he had an easier time pointing to the insurgency by the Kosovo Liberation Army as an excuse--something that would have been much harder for him to do regarding Bosnia, had the prosecution managed to get its Bosnia indictment together in time to issue it first, which is what one might have expected, since the Bosnia war happened first. These are some of the risks you take when you choose trials.