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Crime and punishment

With former Yugoslav President Slobodan Milosevic on trial in The Hague, Christopher Bennett reviews two recent books examining the effectiveness of war crimes tribunals.

Almost exactly ten years ago, television pictures from Bosnia and Herzegovina of emaciated men cowering behind barbed wire and surrounded by armed guards conjured up images of the Holocaust and generated outrage throughout the world. In response, with human rights' activists demanding that something be done, the UN Security Council set up a "commission of experts" in October 1992 to gather evidence of war crimes in the former Yugoslavia. Already at the time, one man stood out as responsible for the carnage and atrocities that characterised the wars of Yugoslavia's dissolution: Slobodan Milosevic.

The then Serbian president was dubbed the "Butcher of the Balkans" by Western media soon after the outbreak of war in Bosnia and Herzegovina (Bosnia) and named a war criminal by the then US Secretary of State Lawrence Eagleburger in December 1992. Nevertheless, Milosevic remained in power for the next eight years, continuing to fan the flames of conflict until his ouster in October 2000 after elections he tried to pervert. Moreover, not until NATO intervened in Bosnia with a two-week air campaign in August and September 1995 was the killing halted. Meanwhile, in February 1993, the UN Security Council passed a resolution setting up, in The Hague, an "international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991", now normally referred to as the International Criminal Tribunal for the former Yugoslavia (ICTY).

Despite meagre initial resources and lukewarm support in the early years, not to mention the hostility of many of the successor states to the former Yugoslavia, the ICTY has evolved into a formidable institution with more than 1,200 employees and an annual budget greater than US $100 million. The ultimate catch, Milosevic himself, was transferred to The Hague on 28 June 2001. He has been on trial for crimes against humanity, grave breaches of the Geneva Conventions, violations of the laws or customs of war and genocide since February of this year, conducting his own blustering defence in front of a court whose authority he refuses to recognise.

The Milosevic trial clearly makes for great theatre. The visitors' gallery is usually packed and journalists covering it have become accustomed to having entertaining copy fall in their laps. It is also a legal first. Never before has a sitting head of state been indicted by an international court, arrested and placed on trial. And it has already set precedents for the future activities of an International Criminal Court. However, to what extent do war crimes trials at the ICTY contribute to catharsis for the many victims, both living and dead, of the wars of Yugoslavia's dissolution? How much do they help and how much do they hinder the peace processes underway in the former Yugoslavia? And what, if anything, do they contribute to reconciliation and the rebuilding of trust among rival communities?

Two recent publications - The Key to My Neighbour's House: SEEKING JUSTICE IN BOSNIA AND RWANDA (Picador USA, New York, 2001) by Elizabeth Neuffer and Stay the Hand of Vengeance: THE POLITICS OF WAR CRIMES TRIBUNALS (Princeton University Press, Princeton, 2000) by Gary Bass - seek to answer these questions and are likely to be the first of an avalanche of books on this subject. The former is a journalist's account of the experience of ordinary people in both Bosnia and Rwanda seeking justice at the end of the conflicts and willing to testify in front of an international court about their ordeal. The latter is a scholarly examination of war crimes tribunals from St Helena, following the Napoleonic Wars, through Leipzig and Constantinople following the First World War, Nuremberg following the Second World War to The Hague today.

Neuffer, an award-winning reporter with the Boston Globe, covered the conflicts in Bosnia and Rwanda for more than half a decade. In Bosnia, she painstakingly pieced together the stories of three Bosnians, including Hasan Nuhanovic, a UN interpreter in Srebrenica, eastern Bosnia, whose position helped him survive the massacres in which his parents perished and his brother disappeared. In Rwanda, she did the same for Anonciata Kavaruganda, a Hutu, whose husband Joseph, head of the country's supreme court, was hauled away from their home in Kigali, the Rwandan capital, by Hutu soldiers to be killed as United Nations peacekeepers looked on. And she recounted the story of witness JJ, a Tutsi repeatedly gang-raped by Hutu militiamen, whose testimony helped secure the first conviction for genocide after a trial in an international court, in which rape was defined as an act of genocide for the first time.

All the stories, like countless more in both Bosnia and Rwanda, are powerful, heart-rending accounts of man's inhumanity to man. But even now, seven years on, the events of July 1995 in Srebrenica, where possibly as many as 8,000 Muslim men and boys were summarily executed, retain special ability to shock. The horror of the slaughter, reconstructed by eyewitness descriptions of mass-grave excavations, the indifference and deceit of those responsible, whom Neuffer tracked down and interviewed, and the sense of international betrayal, as experienced by Nuhanovic, make for compelling, if upsetting reading. It is difficult not to shed a tear when a frantic Nuhanovic bids his mother, father and brother, farewell, fearful that he would never see them again.

While the United Nations as a whole comes out badly in Neuffer's book, certain UN employees emerge with much credit. Among them is Gabrielle Kirk McDonald, the judge who presided over the first trial. One of McDonald's preoccupations was whether her work and the work of the tribunal would make any difference where it counted, namely in Bosnia and the rest of the former Yugoslavia. Indeed, it was largely as a result of McDonald's efforts, that the ICTY launched in 1999 an outreach programme to help explain its work among the peoples of the former Yugoslavia. Many of the Bosnians and Rwandans who feature in Neuffer's book, however, have mixed feelings about international justice and, in particular, the pace at which it operates. Indeed, Kavaruganda took the unprecedented step of suing the United Nations for failing to protect her husband and other witnesses now desire to move beyond war crimes trials to a truth commission.

Most frustrating for McDonald was the absence of big-name indictees to try and, specifically, the failure to apprehend the former Bosnian Serb leaders, Radovan Karadzic and Ratko Mladic, who remain at liberty to this day. She left the ICTY in November 1999 at a time when neither they nor Slobodan Milosevic, who had been indicted six months earlier, were in custody, telling The Washington Post that: "Their liberty makes a mockery of the pledge to would-be tyrants that they will be indicted, arrested and made to answer for their alleged criminal acts and violations of human rights."

Although Neuffer's book was completed after Milosevic's transfer to The Hague, it was largely researched and written before that momentous event. As a result, it reflects the frustrations of the early years of the ICTY's operations. The first hardback edition of Bass's book Stay the Hand of Vengeance was completed before Milosevic's transfer to The Hague and does not, therefore, mention it at all. The paperback edition, by contrast, contains an afterword examining the circumstances of Milosevic's indictment, the nature of his arrest and transfer to The Hague and its significance.

An awesome piece of research, Stay the Hand of Vengeance chronicles the principled belief that war criminals must be put on trial and the ways in which liberal states have dealt with this issue in the aftermath of war during the past two hundred years. The book is, in effect, a critical look at the failings of war crimes tribunals and as such leaves the reader under no illusions of the magnitude of the task ahead at the ICTY.

Bass bases his analysis of the politics of war crimes trials on the following five propositions. Firstly, only liberal states with legalist traditions support genuine war crimes tribunals. Secondly, even liberal states do not tend to push for war crimes tribunals if so doing would put their own soldiers at risk. Thirdly, liberal campaigns for international justice are distinctly self-serving with far greater outrage at war crimes committed against their own citizens than against foreigners. Fourthly, liberal states are most likely to support a war crimes tribunal if public, and not just elite, opinion is outraged by the war crimes in question. And fifthly, non-state pressure groups can be effective in pushing for a tribunal, by shaming liberal states into action and providing expertise.

Ironically, Milosevic is a beneficiary of liberal states' legalism. This is because legalism has given him the opportunity to denounce the ICTY and obliges his prosecutors to work to the highest possible standards, painstakingly gathering evidence, to build the case against him. Moreover, the fact that he and other senior war crimes suspects were not apprehended earlier or remain at liberty is clearly linked to the risk involved in their arrest. Since Milosevic's alleged crimes were committed against Albanians, Croats and Muslims, and not Westerners, Western countries were understandably reluctant to endanger the lives of their soldiers to bring him to trial. That said, popular outrage in the West at what took place in Bosnia, Croatia and Kosovo during the 1990s led to the creation of the ICTY and sustains support for the trials that take place there. Moreover, activist non-governmental organisations are maintaining pressure on Western governments to ensure that the ICTY is properly resourced and that more war crimes suspects are brought to justice.

The Milosevic trial is clearly a landmark, but, Bass points out, there have been similar landmarks before that came and went. Moreover, the line between success and failure of war crimes trials has historically been razor thin. Indeed, it is sobering to read how close the Nuremberg trials, which most war crimes tribunal advocates view as the ultimate triumph of law over vengeance, came to not taking place. While Moscow was eager to execute large numbers of Nazis after victory, London, too, called for the summary execution of top Axis leaders, until overruled by Washington. And even in Washington, opinion was divided. Henry Morgenthau Jr., the treasury secretary, pushed for severe retribution - including up to 2,500 summary executions, reparations, population transfers and Germany's pastoralisation - and Henry Stimson, the war secretary, urged war crimes trials because of the United States' own domestic respect for due process.

While Stimson won the internal debate, it was the idea of Germany's pastoralisation that most Americans objected to, not the way in which defeated Nazis were to be dealt with. Moreover, Stimson was concerned with prosecuting Nazi Germany for waging an aggressive war, not with the Holocaust. While today, the Nuremberg trials are primarily remembered for punishing crimes against humanity - and this is certainly their greatest legacy - the issue was of secondary importance at the time.

In a similar vein, the ICTY's troubled birth and difficult early years may be to its long-term advantage. Indeed, on the back of the Milosevic trial, war crimes tribunal advocates are already claiming, among other things, that the ICTY will help deter future war crimes, rehabilitate Serbia, remove the stain of collective guilt by individualising responsibility and establish a true record of events. Bass refuses to get carried away and advocates war crimes tribunals only because they are the "least-bad option". Poignantly, he dedicates his book to the "people of Bosnia and Herzegovina. Too late."

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