A Tribunal Born of Fear and Hope

At the dawn of the Cold War’s end, old dreams of an effective multilateral system based upon the rule of law and democratic public opinion returned. Senior United Nations officials and Scandinavian foreign ministers, as well as George Bush Sr’s speechwriters, pored over dusty volumes of Woodrow Wilson’s speeches. The first Gulf War, unlike the second, was firmly grounded in multilateralist rhetoric, justification and hopes.

For a while, the early 1990s seemed less an American triumph than an opportunity for international organizations whose development the Cold War had stunted. Canadian political scientist Janice Stein and Yale historian Paul Kennedy expressed the view that both sides had lost and, in Kennedy’s case, that the American empire was on a downward trajectory. The Americans had won the major battle, but the huge deficits of the Reagan years and the emergence of Europe and Asia meant that the United States was limping into the 1990s. The U.S. was, as it had been in 1919 and 1945, a nation all too anxious to cash its peace dividend. The news, moreover, was mostly good.

The Cold War’s end had brought less deadly conflict than most had expected. Despite horrible economic and social problems, the former Soviet Union and its Eastern European satellites broke up with some blood on the fringes, but for most citizens of the formerly Communist states the end of Communism brought no violence. The end of the separation of Europe, the integration of the former Communist east into the prosperous and increasingly unified west, and the excitement of liberation in the historical capitals, such as Prague where poets actually ruled, caused some to talk of the end of history; others, more wisely, celebrated new beginnings.

Prague and Budapest were major cities in the old Austro-Hungarian Empire, as were Belgrade and Zagreb, but the 1990s mood in the latter places was different and darker. After 1989, Yugoslavs became Croats or Serbs, Catholics or Protestants, Muslims or Christians. They began to doubt, then to resent and, finally, to murder. Old wounds reopened and began to bleed.

The rhetoric of the new Europe suddenly seemed hollow as the Europeans fumbled in their response to war in the Balkans. The Germans, notorious allies of the Croats in World War II, too quickly recognized an independent Croatia. The Russians too eagerly excused the nationalist excesses of Serbia. The Greeks expressed outrage when a part of Yugoslavia called itself Macedonia, a name to which they claimed full and prior rights. The divided Europeans fiddled as Croatian villages burned, artillery bombarded the Adriatic gem of Dubrovnik and Vukovar was ethnically cleansed. Eventually, the UN, the Europeans, NATO and, above all, the Americans responded with force to quell the civil wars.

“Never again” had so often been pledged by European politicians after World War II, but in the former Yugoslavia ethnic genocide did happen again. Force alone was no answer. The west turned to earlier precedents and through the United Nations formed the International Criminal Tribunal for the Former Yugoslavia. This tribunal, to borrow a phrase used by Canadian diplomat Escott Reid to describe the founding of NATO, was born from fear and hope. The fear was a recurrence of the murderous ethnic wars of Europe’s past; the hope was the entrenchment of liberal legalism and the concept of crimes against humanity.

John Hagan’s Justice in the Balkans reflects the hopes and fears that accompanied the creation and the first years of the Tribunal’s operation. He traces the court’s origins in the first chapter, linking the prosecutors of the Nazi leaders at Nuremberg with the establishment of the Yugoslav Tribunal and the later creation of the International Criminal Court. Especially compelling is Hagan’s report of his interview with Ben Ferencz, who had seen the Nazi concentration camps and who had taken part in the briefs against the Nuremberg criminals. Ferencz tells Hagan that his book must make that case for a permanent international court.

Hagan’s book, then, is very much a case for the defence of the Yugoslav Tribunal and for the tradition of war crimes trials. A second strong theme of the book is personal agency. Hagan, the John D. MacArthur Professor of Sociology and Law at Northwestern University and a criminologist by specialization, attributes historical change far more to the impact of human decision and action than most contemporary historians do.He readily accepts the Weberian concept of charisma and, for that matter, Carlyle’s notion of the Hero, and looks to the roles of Robert Jackson and Ben Ferencz as central to the understanding of Nuremberg’s success.

An excellent narrative history of the Yugoslav Tribunal based upon extensive interviews with the principals, Justice in the Balkans also promotes the concepts of legal liberalism deriving from Nuremberg and individual activists such as Ferencz. The book has a purpose, one urged upon the author by Ferencz, who told Hagan that he must fight for a “permanent court where these principles apply equally to everyone and lead to a more humane and peaceful world.” Ferencz, now in his eighties, works every day for that cause. “You have no time to live,” his wife says. “I have no time to die,” he replies.

The Yugoslav Tribunal’s charismatic leader and Carlylean hero was Louise Arbour, Canadian Supreme Court Justice and recently named UN Human Rights Commissioner, who was the court’s chief prosecutor and who raised the sights of the Tribunal from low-level soldiers to the Serbian political leaders, notably Slobodan Milosevic. Without her determination—and the strength of her character—which inspired others and redefined their purpose, the Yugoslav Tribunal would have been little more than yet another poorly funded UN resolution.

Arbour, like Hagan and Ferencz, linked the Yugoslav Tribunal directly with the Nuremberg prosecutions: “We mention its name every single day,” she remarked. Hagan shares her excitement about the possibility of strengthening international humanitarian law by establishing strong transnational legal precedents.He apparently finished the book in the summer of 2003. Its final paragraph describes a meeting on international criminal law at the New School in New York at which Ferencz and Arbour’s predecessor, Richard Goldstone, express confidence in the value and future influence of the Yugoslav Tribunal. The book ends with the octogenarian Ferencz wandering around the corridors passing out flyers and urging American acceptance of the permanent International Criminal Court.

Time has not been kind to Hagan’s book. Since its publication, the Yugoslav Tribunal has faced increasing press criticism, and the United States, which had been central to its creation, has expressed rising disillusionment. Even those who do not share the Bush administration’s skepticism about international humanitarian law and international institutions are now troubled. Some point to the costs of the Tribunal, which are now in the hundreds of millions of dollars, and ask whether results justify the expenses when so many humanitarian alternatives that promote international justice are ignored or grossly underfunded.

Others point to the quality of justice. In December2003, the International Herald Tribune described the sentencing of a Bosnian Serb colonel, Dragan Obrenovic, who pleaded guilty to crimes against humanity. He received 17 years for his role in the killings of Muslims in the safe haven of Srebrenica, despite his “remorse, his cooperation with the tribunal and his [excellent] conduct before the war.” In his judgement, the presiding judge noted that Obrenovic was guilty “mostly of inaction.” He was aware of the “larger murder operations” taking place and did not take action to punish the murderers.

The presiding judge was Liu Daqun of China, a nation where tens of millions died in the 1950s and ’60s and where the political leadership of China of those times is still celebrated by today’s leading politicians. Moreover, the two “most wanted” for their actions in the Srebrenica massacre, Bosnian Serb leader Radovan Karadzic and his military chief, Ratko Mladic, remain “at large.” The ineffectiveness of NATO in apprehending them parallels the obvious willingness of many Bosnian Serbs to shelter them.

Serbia itself did not shelter Milosevic. Responding to an offer of reconstruction aid, the Serbian government did transfer Milosevic to the Yugoslav Tribunal. It was Arbour, with considerable assistance from General Wesley Clark, who took the bold move to indict Milosevic, an action that Hagan credits with establishing the Tribunal’s worth.

The Milosevic trial, however, has gone badly. Milosevic, the face of evil, as a former American ambassador to Yugoslavia memorably described him, has chosen to defend himself. Despite periodic bouts of ill health that slow the expensive proceedings, Milosevic challenges the court, the west and the notion that the trial is fair. Dressed in an impeccably tailored blue suit, silk tie, polished black shoes and carrying his notes in a Hermès briefcase, Milosevic is wearing down his prosecutors and the witnesses. ((See Guy Leser, “War Crime and Punishment: What the United States Could Learn from the Milosevic Trial,” Harper’s (January 2004), 37–39.)) The presiding judge, Richard May, suddenly announced his resignation from the trial two months ago. Whenever his attack on Kosovo is raised, Milosevic responds with allegations about the illegality of the NATO bombing.

Here he touches a raw nerve. One of the strongest critics of the Hague Tribunal has been Henry Kissinger, who charges that Arbour irresponsibly permitted the Tribunal to stray from the Nuremberg precedent. Kissinger argues that Arbour extended the Tribunal beyond its defined role of prosecuting former Yugoslavian war criminals to acceptance of the concept of universal jurisdiction, one that is “fuzzy” and that could lead to “any leader of the United States” being hauled before “international tribunals established for other purposes.” Charisma, in Kissinger’s view, became hubris when Arbour “supported a ‘complaint’ by a group of European and Canadian law professors … alleging that crimes against humanity had been committed during the NATO air campaign.” Arbour ordered an internal staff review of the complaint, an action that, in Kissinger’s and most certainly also the Bush administration’s view, implied “that she did have jurisdiction if such violations could, in fact, be demonstrated.” And that is what Milosevic is seeking to demonstrate. ((Henry Kissinger, Does America Need a Foreign Policy? Toward a Diplomacy for the 21st Century (Simon and Schuster, 2001), 279–80.))

Almost certainly Milosevic will fail with the Tribunal; however, he has succeeded in Serbia. In the December 2003 elections in Serbia, the largest party, with 27.3 percent of the vote, was the Radicals, whose leader, Vojislav Seselj, is in jail in the Hague. Milosevic himself was elected to the Parliament and his party won 7.5 percent of the seats. This nationalist resurgence will most likely mean that the aid offered on condition that Milosevic go to the Hague will dry up, especially since the Americans have already said that their aid will end unless Mladic is in the Hague by this spring. No Serbian government could deliver on that promise.

Nationalists dominate the debate in Serbia, and the fuel for the political conflagration that benefits them is the proceedings of the Yugoslav Tribunal. Serbs mutter that the Croats got off lightly, but that has not helped matters in Croatia where Croatian Nationalists once again hold sway.

Meanwhile, the troubles in the Hague have not helped with acceptance of the International Criminal Court, which has become a central target of the Bush administration. And even those who share Hagan’s views and Ferencz’s dreams realize that the ambiguities of the Yugoslav prosecution and the growing awareness that there are many war crimes that will never be prosecuted are weakening the momentum of liberal legalism. Recently, a newspaper in Toledo, Ohio, uncovered extensive war crimes carried out by American soldiers in Vietnam. Many knew of them; no soldier faced legal proceedings. Despite war crimes tribunals for the former Yugoslavia, Rwanda and probably Iraq, no American will face a court martial, much less the 17-year sentence Obrenovic received for his “inaction.”

Others will argue that closing the book is best, as was done in South Africa and, to a large extent, in East Germany. Kissinger, himself now a target for his actions in Cambodia, Chile and Argentina, rails against the presumption of jurists to assign “the ultimate dilemmas of international politics” to the unelected judiciary. The issues are too vague, the historical and political context badly understood. The comic opera about Pinochet, the Spanish and the British House of Lords, the adventurism of Belgian legislators trying to extend universal jurisdiction, and the graffiti about war crimes on walls throughout the west have not helped those who want to bring to justice those soldiers and politicians who deliberately murder others who disagree in thought, differ in ethnicity or simply happen to be in the killing fields.

As Hagan admits, his book is a pilgrim’s progress, the expression of personal faith realized through a detailed examination of the Tribunal’s operations. Those with such faith find justification in deeds, and, for Hagan, the Yugoslav Tribunal does justify his faith. Faith responds to challenge and to doubts, and it would be interesting to know what Hagan makes of recent events. I suspect he would share the opinions of American legal journalist Guy Lesser, who attended the Milosevic trial and found it “disconcerting.” Still, Lesser argues that it is important that a group of skilled and idealistic legal professionals are devoting their energies and intelligence to creating incentives that would prevent humanitarian disasters. And, in Lesser’s view, it is better that Milosevic hear his victims and explain his deeds than have him enjoy his last years on a southern beach supported by confidential Swiss bank funds.

Nearly all of us can agree that it is indeed better, but the history of international institutions in the 20th century was sometimes a case of the attempt to do good defeating the best. Nuremberg was a milestone; the prosecution of the Japanese war criminals was a disaster. The step forward with Yugoslavia and Rwanda may lead to a step backward in Iraq, where the United States is determined to avoid an international tribunal.

These are the doubts, and they have substance. Yet faith, as Pascal said and Hagan recognizes in this fine book, has reasons of the heart. I visited Yugoslavia once in the early 1970s. The horrors of the 1940s, much less the 1990s, were unimaginable the afternoon and evening I spent just north of Belgrade with a villager of German background. The old gentleman was content with his life, even though all his fellow Germans had been forced to leave the town in 1945, to be replaced by Serbs. His daughter had married a Serb, who became mayor of Novi Sad. A rococo Roman Catholic church remained in the town, although there were no Roman Catholics any more, and each day the old man went to the belfry and rang the bells. One day in 1993, he mounted the stairs, rang the bell, came down and met his Serbian murderers. In our hearts we know it is right that Milosevic should face his victims and his judges at the Hague.