Friday, March 14, 2003
Professor Gary Bass of Princeton University the role of international law in prosecuting war criminals, including Slobodan Milosevic.
Gary Bass: It’s great to be here. I really appreciate it. I appreciate the invitation, and I appreciate Jerry and Bridget, who put this all together.
I want to start out with sort of a vignette from the trial. This is the kind of thing that happens all the time. I was there at the end of October and the beginning of November to spend Princeton’s fall break sitting there watching this guy. The way that he conducts himself on the stand, I think this sort of mafia-like conduct, doesn’t always fully come through in some of the reporting of that.
So the guy who was testifying for most of the time that I was there was a Serb intelligence agent who had started out -- Yugoslav army intelligence named Slobodan Lazarevic who had come in from the cold and turned against Milosevic and was now testifying against him.
This was a guy who has been put in a U.N. relocation program, given a new identity somewhere. The one thing he mentioned in the course of the trial was that he was working in airport security, which was not exactly encouraging, this career communist spy.
So Milosevic at one point says based on my information, which means on the files that he is being slipped by people in obviously the security forces back in Serbia who are still loyal to him, based on my information, your wife’s name is Iva. The prosecutors are jumping to their feet saying the name of this guy’s wife has no relevance, this has to be stricken from the record. He’s in the witness protection program and you can’t just go -- Iva, by the way, is not the wife’s name. Then he says and also based on my information, your wife works as a lawyer. The prosecution again is screaming saying this has to be stricken. [This is also not her real occupation.]
The point is that he’s sitting there, he’s behind bulletproof glass, he’s been toppled, he’s out of power, and yet he’s still saying if you mess with me, there are people back in the region who are still my kind of loyalists, and this obviously has uniquely grisly resonance after what happened to Zoran Djindjic, but if you mess with me, I will mess with you, and I will get your family. It has this incredible Godfather quality to it.
What I’m going to do is I’m going to make three brief arguments from the book and then just talk a little bit about what’s going on in the trial, because I think the trial dropped off the radar screen at the moment when it’s actually becoming the most interesting.
Three brief arguments, first, about the reason why we chose justice in the first place -- with these three arguments, I’m going to take a slightly broader historical perspective based on the book -- and then talking about why we made this decision that the trials were the way to go rather than any number of other policies that we could have tried.
I want to talk about reasons why even though we did do the right thing, I think by choosing justice as our policy, reasons why liberal governments, even the kinds of governments that we tend to like, will often do so badly with the prosecution with war criminals. The first is that these governments are almost never willing to risk their soldiers for the sake of arrest. Secondly, that there’s still an enormous selfishness underlying which crimes and which atrocities get prosecuted. When it’s our own citizens who have been the victims of crimes, we’re much more likely to see prosecution than when it’s foreigners who have been killed.
The way that I think most people start thinking about war crimes trials is that this is just victor’s justice, that it is something that powerful states do to weaker states, that it’s the advantage of strong states over weaker states, and that’s the idea that’s most common in academic thinking about if we’re realists, views of the world predominate, but also I think just when you talk to people normally, that my long-suffering parents would always say we don’t understand why you’re writing this book, it’s obvious victor’s justice, that’s all that there is to it.
But I think what the victor’s justice argument doesn’t explain is two things. First of all, why would you see your enemies as criminals? That in the kind of Henry Kissinger view of the world, the people who you’re fighting against today will probably be your allies tomorrow, which is obviously a big part of the story in Germany, that Germany went from being a Nazi state to being a bulwark against communism, Iraq could presumably shift from being our mortal enemy to being a bulwark against Iran or against Saudi Arabia.
That kind of fluidity in the Kissinger view of the world I think is so normal that talking about criminals and legally fixing which people we just don’t deal with anymore I think takes away much needed flexibility.
The other thing is why would you bother with trials at all? Milosevic implicitly threatened some kind of mob hit on a witness’s wife, why would you bother with trials? We are so familiar with the mechanism of trials, doubly so after Nuremberg, that I think we tend to forget just how unwieldy these things look when you go back and you look at the discussions of political leaders trying to decide what they’re going to do at the end of a war with their defeated enemies.
I asked Richard Goldstone, who was the chief prosecutor at the ex-Yugoslavia tribunal, the first chief prosector, if he had thought about the political consequences of indicting Radovan Karadzic and Radko Mladic, the political and leaders of the Bosnian Serbs during the war; what happens if you indict these guys and then you can no longer negotiate with them. Goldstone’s response was basically that’s Richard Holbrook’s problem, that I’m doing the legal side of it, I have a Security Council mandate to indict anybody who looks as though they’re guilty of war crimes, genocide, crimes against humanity, since 1991 in ex-Yugoslavia, and these guys sure seem to fit the bill, so I’m going to indict them, and if that creates political problems, that’s not my issue.
He said, “It was really done as, if you like, an academic exercise, because our duty was clear.”
I think when you take this political problem of what you’re going to do with your defeated enemies and turn it over to the lawyers, then you bring in a whole different set of standards. You have people who are now thinking in terms of evidence, procedure, due process, finding smoking guns, that can make it impossible for you to prosecute people that richly deserved prosecution, that you desperately want to prosecute, but you just can’t find the right piece of paper. War criminals now know this after Nuremberg, they know if you can minimize the paper trail, then that’s to your advantage, that there is a certain trueness. That doesn’t mean that they’re not war criminals, it just means it’s harder to prove it in court.
If you look at some of the debacles after World War I in Constantinople and in Leipzig, where there were failed war crimes trials, this was a big problem. The Germans in front of a court in Leipzig in 1921 pleaded that they had just been following orders, and this German court largely accepted that and most of them got off with a slap on the wrist -- desultory punishment. Those are the kinds of risks that you take when you choose trial.
I think that there are states that have seen the difficulty of these kinds of trials -- that once you turn it over to a bunch of lawyers, it’s going to be a huge mess -- that actually just do things the easy way. These are countries that basically that are dictatorships. Totalitarian states and dictatorships do it the easy way. So when you go back and look at the debate that the Prussians had -- this despotic state in 1815 -- about what they’re going to do with Napoleon, the Prussian debate is about where they’re going to shoot Napoleon, not whether. The two options are, one, you can shoot him on the spot, and there were a couple of people who made very persuasive, well-reasoned arguments for shooting him on the spot.
Then there’s another faction who say, no, no, we shouldn’t shoot him on the spot, we should haul to the point where Bonapartists shot the Duc d’Enghien and shoot him there, but that’s the extent of the debate. The Brits say we’re just going to find a convenient island for him and ship him off somewhere. But trials? Absolutely not.
It never seems to occur to anyone. We’ve been fighting wars with France since 1793. Do you really think we’re now going to pause and have trials? The strangeness of it I think is apparent from their point of view, but not so much from ours.
A more contemporary example is Stalin. Stalin in 1943 at the Tehran Conference gets up, makes a toast, ‘Here’s to dealing with German war criminals the Stalinist way, which is to shoot between 50- and 100,000 of them, no trials.’ That I think makes perfect sense in this sort of -- there’s a logic to it. I’m obviously not endorsing it, but there’s a logic to it.
The question is, I think, why don’t we do that. The answer is that liberal states, states that respect -- not liberal in the Mike Dukakis sense, but liberal in the sense of respecting civil liberties at home -- have principled domestic practices that spill over into our foreign policy, that we do things abroad somewhat, not always, but somewhat the way that we would like to do things at home.
You get amazingly explicit statements about this. In 1918, the Imperial War Cabinet trying to decide what to do with German war criminals at the end of World War I, bring in the British attorney general. What on earth is the attorney general doing in this meeting in the first place? It’s a military cabinet and shouldn’t be there at all.
He says, “We should take the risk of saying that in this quarrel we the Allies, taking our stand upon the universally immutable princes of the moral law take our own standards of right and commit the trial of them to our own tribunals.”
FDR’s secretary of war, Henry Stimson, the architect of Nuremberg, wrote in 1944, “Such procedure must embody in my judgment at least the rudimentary aspects of the Bill of Rights.” Even the Nazis get the Bill of Rights, or some stripped down version of it.
To give you an idea of the contrast between the liberal approach and the nonliberal approach, go back to the Tehran Conference. Stalin says here’s to shooting 50- to 100,000 Germans. FDR, who seems never to have quite got that Stalin was really actually like Stalin, gets up and says, ‘Marshal Stalin, don’t you think 49,000 would be enough?’ An incredibly feeble joke.
Churchill, who does understand who Stalin is, storms out of the room and says, ‘I would rather be shot myself than sit and listen to such infamy,’ and you can hear him rolling the word “infamy” and the cloud of cigar smoke wafting following him as he goes into the garden.
So it becomes clear that Stimson is not going to allow the Soviets to get away with this preferred solution. So Stalin at this point shifts gears and says, ‘Fine, you want trials? I know all about trials.’ So they say that Nuremberg will be not really an independent court, the Soviet judge at Nuremberg, anytime he’s asked something he’ll say, ‘I have to go to Moscow.’ As far as the Soviets in Nuremberg are concerned, the indictment is a statement of fact. It’s not a series of allegations to be proven or disproven by the court, it’s a statement of fact, and now we’re just going to talk about it.
If you look at who people sent, the American chief prosecutor at Nuremberg is Robert Jackson, who is a Supreme Court Justice, the last Supreme Court Justice who didn’t have a law degree, which explains his Shakespearean eloquence. The title of my book is from Jackson. So they send this guy whose job is basically telling the White House and the Congress, no, you can’t do this particular policy, that that’s what Supreme Court Justices do.
The Soviets send Andrei Vishinsky, the impresario of the Moscow purge trials who will get up at Nuremberg and say toasts like, ‘May the defendants lead directly from the courtroom to the hangman’s noose’ -- if found guilty, right? This is the difference.
I think in this sense, Milosevic, rather than whining about victor’s justice, should be thrilled at the victors were NATO, that if you happen to be a Eastern European strongman toppled in a revolution, let’s not forget politics is rough. He could have wound up like Ceausescu. The fact that he gets the luxury of 2 years in court to make his case is I think a testament to the West and to the international communities’ restraint, not to this (inaudible). There is victor’s justice, and there’s victor’s justice, right? It could be Stalinist-style stuff. Not that I actually expect him to thank us.
Given that I’ve given this defense of legalism, that I think it is a good thing, I want to give two reasons why I think the human rights movement should be at least somewhat skeptical of legalism, in that the tribunals actually can cause trouble. First of all, just from a moral point of view, I think it’s not clear that the legalistic option is the only moral option. I think on balance it is the most moral option. But I think there are moral impulses that push for harsher punishment that we have to at least take seriously because they represent an authentic strand in the thinking of the victims and at a minimum we need to respect it for that reason.
So Henry Morgenthau Jr., who was FDR’s treasury secretary, who was the only member of the Roosevelt cabinet who really pushed hard to do something about the Holocaust, he was the guy who set up the War Refugee Board which hired Raoul Wallenburg, he was the guy who was fighting the state department about visas. He was the classic good guy, what Samantha Power would call up-stander, in the Roosevelt cabinet.
Morgenthau was so enraged by what the Nazis had done that he couldn’t stomach the thought of putting them on trial, that he wanted mass executions of -- up to 2,500 was the number they were kicking around in Treasury in 1944. I think some of the reason why Stimson could afford to restrain his outrage was Stimson, when you read his diaries, he doesn’t seem to have been all that exercised about it. Stimson’s War Department obviously had a pretty unimpressive record in dealing with the Holocaust. Stimson himself was sort of a gentile social anti-Semite. I don’t think that his indifference was motivated by anti-Semitism, but he doesn’t feel it in the gut in the same way that Morgenthau, who was Jewish, does.
There’s a sense in which Morgenthau is kind of right. To call these things crimes, therefore you get punished by law with due process, in a way to call these people -- war criminals is not bad enough. That we have in domestic law this idiom where there is assault, aggravated assault, assault with intent, with proportional sentencing all the way along. What do you with somebody like Milosevic, who has the blood of arguably 250,000 people on his hands? What do you do in Rwanda, where it’s 800,000 people? There is nothing that goes far enough.
Hannah Arendt said, “For these crimes, no punishment is severe enough. It may be essential to hang Goering, but it is totally inadequate. This guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems. That is why the Nazis in Nuremberg as so smug.” So that’s one problem.
The other problem is that legal methods I think might interfere with the peace process, of with the democratization process, that outgoing dictatorial regimes will often ask for an amnesty as part of the price of stepping down; Chile, South Africa. When it collapses really suddenly as Milosevic’s regime did, or as the junta in Argentina did, then there isn’t enough time to do that. But if it’s a negotiated transition, then that will be part of it.
It is possible that indictments by the war crimes tribunal could have interfered with making peace either in Bosnia or in Kosovo, and it would be hard to explain to Bosnians why the war had to continue, because, no, we just won’t negotiate with these guys. Often the people who start the violence are the people who can stop the violence. The reason why you want to negotiate with them is precisely because they are war criminals, and by having them stigmatized and thrown out of the political process, there really is potentially a problem. So those are two reasons why legalism may not be such an unmitigated blessing.
I want to say very quickly two things about why even liberal states, which have so far gotten a pretty good rap, may not be such a great thing. First of all, I think there’s a real shallowness to the liberal commitment to prosecute war criminals. Richard Holbrooke used to say that America was suffering from what he called Vietmalia syndrome, that we didn’t want to risk troops because of the horrible memories from Vietnam and Somalia.
I wish that Holbrooke was right. Holbrooke in fact is being much too optimistic, that the roots of this kind of reluctance I think go much deeper. As early as 1815, the British squadron that arrested Napoleon was given orders, “The life of any British sailor was as dear to the King of England as that of Bonaparte.” During World War I, Germany wrecked France’s threats of war crimes prosecution and implied threatening reprisals against French POWs.
In 1921, Ataturk, the founder of the modern Turkish Republic, wrecked the British effort to bring some of the chief architects of the Armenian genocide -- Ottoman Turk leaders, who were in British custody up to the level of Grand Vizier, foreign minister, justice minister, really top-level guys -- wrecked this process by taking a handful of British soldiers hostage and then turning around and saying to the Brits free all of these high-ranking Turks in exchange for this handful of guys that we’ve got.
The British think about it and decide on balance, sure. The guy that’s pushing for this is Churchill, of all people, with the kind of sublime cynicism that you can only get from the British Foreign Office. They write, “It is a measure yielding to blackmail, but it seems justified by present conditions.”
Conversely, one of the reasons why Nuremberg was such a success was that we had already taken the decision back in ’43 to seek unconditional surrender. No matter what happened, Germany was going to be under lock and key, we were going to run up our own flag, and there were, therefore, no extra risks associated with the vigorous policy of prosecuting war criminals. We were going to arrest the entire Nazi leadership no matter what. What we did with them afterwards was sort of immaterial to the risks that our soldiers took.
Another way in which liberal states I think are not so great, there’s a shallowness to the liberal commitment, is there’s a much greater emphasis on prosecuting war criminals who have committed crimes against their own citizens, then when it is foreigners who are being the victims.
You get an almost mathematical pattern of interest, that the countries that are most interested in prosecution are the Belgians who had taken the brunt of the German assault, then the French, then the British who weren’t invaded, weren’t attacked in the same way, and finally the least interested, of course, the alleged great moralist -- because I teach at the Woodrow Wilson School, I feel that it is my duty to badmouth Woodrow Wilson wherever possible; vicious segregationist, failed president -- Wilson had paid no interest whatsoever to war crimes like the violation of Belgian neutrality, the Zeppelin attacks on London, he specifically refused to condemn for fear that it would draw America out of its neutrality.
The one war crime that the United States wants to prosecute at the end of World War I is U-boat warfare. In other words, when they sink our ships, now they’ve got our attention and now we really think that it’s hugely important for the progressive evolution of international law that Germans be prosecuted for that. For trashing Belgium, we don’t really care. That’s the principled Wilsonian position. Now think of what happens when less principled politicians get ahold of it.
We tend to remember Nuremberg quite wrongly as being a trial mostly about the Holocaust. It just wasn’t. The Americans who drove the process were most interested in outlawing aggression. I think the crimes against humanity charges were a secondary or tertiary concern.
That is part of the reason why the Israelis felt the need to pursue their own war crimes processes with the Eichmann trial, and why a new generation of West Germans also felt that it was so important to hold trials, the Auschwitz trials in Frankfurt from ’63 to ’65, the Majdanek trials held in Düsseldorf from 1975 to ’81, the new German generation coming forward and putting the Holocaust front and center. That Nuremberg was serving -- it was drawn up in the Pentagon. Pearl Harbor was much more on people’s minds than the Holocaust was. Nuremberg served a very American brand of justice.
Those are some historical points setting the stage. I want to say just a few things about what’s going on at The Hague now. First of all, I think it’s unfortunate that the trial is being pushed way off of the front page. Obviously, there’s a lot going on. I’m not blaming foreign editors for this. But I think that the stories that you’re getting now are actually much more interesting stories than --
Much more interesting stuff is coming out than in all of the Kosovo phase of the prosecution, and by now the Milosevic act is somewhat familiar. I think that in many ways it was a mistake to start with Kosovo. First of all, I think it’s confusing to the judges. One of the judges is a South Korean and is definitely getting a crash course in Balkan history, and to start with Kosovo which came at the end -- it also came at the beginning, -- but the stuff that he’s on trial for is I think quite confusing and makes it harder to see the evolution of it.
Also, Kosovo -- Bosnia was the worst of it, and by starting with Kosovo, it’s a situation that makes it -- first of all, it’s harder to sell in Serbia, that Kosovo has obviously a resonance that Bosnia and Croatia don’t have back home in Serbia, that there is a very deep attachment to Kosovo, that this is not a fictional thing.
There is also I think a greater sense of racism towards Albanians who are not seen as being fellow Yugoslavs, than there is towards Bosnians, even though many of them are Muslim, and towards Croats, even though, don’t get me wrong, there’s a lot of bigotry toward the Croats, and vice versa.
What is happening in the trial and the reason why the trial has become, I think, so much more interesting is that the prosecution has moved away from the Kosovo charges, that it’s done with that part of it, and is now working on Croatia, and will then turn to Bosnia. So they’ve now gone back to chronological order.
The prosecution doesn’t just want a conviction, they want a slam-dunk, that it’s not good enough to get him just on being formally, as obviously he is, the end of the chain of command, the end of the Yugoslav military chain of command. You want to get him not for having formally been the boss and, therefore, either he ordered it, in which case he’s a war criminal, or he knew that it was going on and he should have stopped it, in which case he’s a war criminal -- you don’t want to get him that way. You want to get him for being a hands-on participant, that he was actively involved, that he really was the string puller. For that, the best witnesses, what you really need, are people from inside the regime. You don’t just want crime evidence about how the killing was done. You want to know the chain of command worked, who gave the orders, how it was all interlocking. There’s this incredibly web, this dense apparatus, of state-sponsored atrocity, to see how it all hooks up to Belgrade. That’s the key.
Because of two facts -- one is that Milosevic is seen as having betrayed the Bosnian Serbs by abandoning to their fate in ’95. Also around about the same time, seen as having betrayed the Serbs in Croatia, in Krajina, the self-styled -- the breakaway Republika Srpska Krajina -- seen as having betrayed them. There was enormous bitterness among Krajina Serbs and among Bosnian Serbs towards Milosevic. There are still plenty of people who are loyal to him, who still like him, but it’s enabled the prosecution to get an incredible array of insider witnesses, often fairly senior people.
Lazarevic, this guy who I saw, said, “I consider myself even today to be a loyal Serb,” but felt that he had been bitterly betrayed, that the corps of the VRSK -- of the Krajina Serb Army that he was attached to -- when Croatia does a counterattack and sends something like 100,000 Serb refugees fleeing, the Serbs call Belgrade, who has been nurturing them all through this and says, ‘What should we do, the Croats are attacking?’ The chief of staff of the Yugoslav Army says, “Persevere” and hangs up the phone. Then they call the interior minister and he says, “Persevere” and hangs up the phone. They keep calling people in Belgrade, and they just say “Persevere.” So they feel that there was some kind of secret deal with Tudjman, they feel bitterly betrayed, so now they are back to pay this guy back in court. One of the prosecution office officials said: it’s the revenge of the Krajina Serbs.
So we get all of these people coming out of the woodwork. There’s a guy who’s supposed to testify, C-36, he was a protected witness. This was the worst-kept secret I think in the history of Balkan politics by everybody -- it was Milan Babic, who was one of the top leaders of the Krajina Serbs. Everybody knew it. It was going to be completely obvious from his testimony. For obvious reasons, he preferred to be anonymous, but he is one of the people who has testified.
A JNA general, the guy who is in charge of military and counterintelligence, testified about Milosevic’s responsibility for the war in Croatia. Biljana Plavsic is one of the wartime leaders of the Bosnian Serbs -- better known for the claim -- she was so nationalist that she claimed that the Bosnians were feeding Serb babies to the animals in the Sarajevo zoo. This is Plavsic’s signature moment. She has actually pled guilty to one count of crime against humanity and has in the course of a written statement backing it up -- she herself has not said if she’ll testify against Milosevic, although the prosecution obviously wants her to -- but her statement is actually very damning. It talks a lot about the links between the Bosnian Serbs and Belgrade.
Milan Milutinovic, who was Serbia’s president during the Kosovo war, his defense before The Hague is essentially the Dan Quayle defense, that he’s saying, as everybody kind of knows, that Milutinovic was Milosevic’s stooge. He was not his own man, he did what the boss told him to do. So that’s going to be his defenses: I’m a toady, I have no mind of my own. So technically the least dignified defense that you could offer. On the other hand, it’s very good for the prosecution in the Milosevic case. This is why I think you’re getting such extraordinary revelations about how it all worked, how the apparatus of ethnic murder was all set up.
In response to this, Milosevic is defending himself, if you really want to call it that, in two ways. He swings back and forth between two modes, one of which makes sense and one of which doesn’t. The first mode is Goering in Nuremberg, thundering defiance, raging over victor’s justice, spending all of his time talking about -- it sounds like you’re listening to state television back when Milosevic was running that.
So he talks about the revamped Ustasha movement among the Croats, about there are Mujahedin in Bosnia, NATO imperialists who want to conquer the world, all of the atrocities never happened. Srebrenica, he says, was the work of French intelligence, Vukovar hospital was done by the Croats, the shelling of Sarajevo of course was done by the Bosnians themselves. This is standard that he just gets in there day after day after day. He has this Holocaust-denier sound to him.
He will then sometimes flip modes and remember, wait a second, actually, maybe I should try and get myself acquitted here, and as he spends more time in the court, he begins to see how the court works. Then he tries to behave like Eichmann, to claim that he was just a civil servant, he took no initiative, that there were all of these extraordinarily initiative-taking folks in the region, but he somehow was -- despite being in charge nominally -- out of the loop on every major decision that was made in Serbian foreign policy from 1991 until 1999, that all of these decisions just passed him by, that he kept wanting to make peace and somehow it didn’t work out.
He’ll try this for a little while, try and dodge the command responsibility charges, and then his ego gets in the way. He can’t hold the cringing Eichmann pose, that something snaps, and he starts saying, no, I want Richard Holbrooke come here and my friend Dick will explain that I was the guy who wanted to make peace, I was the good guy. Of course, this is actually true, but it’s pure vanity and it doesn’t help him. Why did Holbrooke want to make peace with you? Well, because Milosevic got it started -- we figured you turned it on, you can probably turn it off. That’s why we wanted to go to you, and you were easier to deal with than Karadzic and Mladic. This is your claim as a peacemaker, better than Karadzic and Mladic? Not terribly impressive.
He’ll have loyalists back in the region send letters saying the witness who testified yesterday is a liar and a British spy and a dupe who is out to slander our great leader, who is the hero of the Serb people, who led us to independence and liberation and resisted Western imperialism. These letters would have all the spontaneity of a Soviet apparatchik wishing the central committee a happy May Day. It has this horrible feeling to it.
He brings in these letters, and what they show is clearly this guy is their boss. He was and is the man in charge, but he can’t resist the show, he can’t resist having these loyalists file these letters. Ultimately his audience is not the court, but Serbia.
There have been a lot of stories, most recently one in the Wall Street Journal with the headline “With Hague Case, Defiant Milosevic Wins Fans at Home,” and talks to Serbs who say how Milosevic is doing such a great job. When you actually look at poll numbers, this is just nonsense, that there is almost no evidence of this. This being Washington and people will presumably appreciate poll numbers, Milosevic has a 66 percent unfavorable image in Serbia. Only 17 percent have a favorable image of the guy. These are off-the-chart numbers.
As for his performance on trial, as the Wall Street Journal thinks, if this is making him more popular: the opening of his trial in February 2002 gave him an up-tick, that he was at 16 percent in January 2002, he goes up to 21 percent in March. By June he’s back down to 17 percent, which is where he sits. He’s flat at 16 or 17 percent, which is a miserably low number. So it’s not so clear to me, actually, that this trial is winning him support back home.
There is, I think, a lot of resentment of The Hague court, there is a lot of resentment of Western demands that people be turned over. Where I think there’s something that’s somewhat hopeful is that although there is something of a generational split on the tribunal, there are an awful lot of young nationalists. But when these figures are broken down by generation, then you find that the people who are biggest fans of Milosevic are what the NDI, the National Democratic Institute which does polling -- NDI and IRI do very good Western-style polling in Serbia -- they found that Milosovic’s biggest fans are the ‘angry old,’ sort of pensioners who miss the good old days, and that the people who are least impressed with him are university-educated women; university- educated young women are probably the least nationalist people in Serbia. So there is at least some kind of constituency.
Although there are plenty of young nationalists, there is some kind of constituency for turning the page, and I think that the trial potentially offers these people good arguments, that you see much less pure denial, fewer people saying that Srebrenica never happened. You still see lots of that, but there’s less of it, and that I think is the contribution.
The other thing that you have to remember is that the primary purpose of the war crimes tribunal is just to get Milosevic out of politics, and of all the options that we could have had, I think that this tribunal is the best one.
The options were, we could have left him in the country. That I think would have been very bad, that however obnoxious he is in The Hague, he would be much more obnoxious at large back in Belgrade.
There could have been a trial within Serbia, and I think if the Serbian government would have done it properly, then that actually would have been better. If it would have been the same trial except for it being conducted with the Serbian accent, that would have been an improvement, and he wouldn’t be able to make these kinds of accusations of victor’s justice. But, first of all, it’s not clear to me that even the reformists in Serbia would have wanted that, that it would have been an enormous burden for them to have to do that. So that would have been very difficult. Also, the nationalists were pretty much set against it.
Kostunica, who will now complain and say, ‘Why couldn’t we have this trial here?,’ I think he did more than anybody else to ensure that the trial would be held in The Hague. If he wouldn’t have talked such trash about the tribunals, said that it’s a NATO court, it’s an American court, it’s victor’s justice, it has no legitimacy, the Racak massacre never happened, if he hadn’t gone through that whole song and dance, then I think we would have been much more inclined -- they had a democratic revolution, we were pretty pleased with them after that was over -- we would have been much more inclined to say this is your guy, you do with him what you will, but Kostunica I think has nobody to blame but himself for that.
So of the options that were on the table, either doing nothing, having the trial in Serbia that I think probably would have been a farce and would have left the Bosnians, Kosovars, and Croatians very angry, or have him go to The Hague, I think The Hague for all the problems that we faced was by far the best option.
I want to close with this. The one amazing thing about the trial is you’ve seen Milosevic, he’s there by himself, and the way that he’s tried to spin this is the lonely little guy standing up to the world. The other way that you can see it is here he is appearing for the first time, he’s got the apparatus of the state behind him, and he has to fend for himself like everybody else. He’s just an individual. He has no particular magic, he has no particular power. He suffers this sort of host of courtroom humiliations, Paddyy Ashdown telling him I told you back in ’98 to your face if you don’t cut it out in Kosovo, you’re going to wind up in court, and here you are. To Milosevic it’s like a body blow. He recoils.
Stipe Mesic, the president of Croatia, a reformist who has now testified twice at the tribunal, once against Milosevic where he went toe to toe with Milosevic, kept referring to Milosevic as “Mister Accused,” the daily humiliations that Milosevic has to put up with. With Lazarevic, this low-level Serb spy, Milosevic clearly was just disgusted to be having a conversation with this guy in the first place, that this was so deeply below his pay grade and below his dignity, so he is rude, condescending, and belligerent. Despite these threats, Lazarevic was actually quite unintimidated and kept going right back at him. So Milosevic would say, Millions of Serbs know me, millions of Serbs call me Slobo.
Lazarevic is obviously another Slobo, and Lazarevic snaps right back, I’m surprised that you mention that because it was usually in a very negative context. This is a reference to the slogan in 2000 of the demonstrators which was “Slobo, Slobo, Save Serbia and Kill Yourself.” So this is this real slap in the face.
So Milosevic, cross-examining Lazarevic, says, “So this is another untruth, Mr. Lazarevic, spread out by you. Is that right or not?” Lazarevic comes right back at him and says, “Mr. Milosevic, you are starting from an unbelievable position, which is that the whole world is lying and that you are the only one telling the truth.”
QUESTIONS AND ANSWERS
Jerry Fowler: We have time for questions.
Question: A broad question that goes back to something you said at the beginning, it’s something that I’ve struggled with deep down, which is war crimes tribunals are set up for a distinct purpose, and at least the U.N. war crimes tribunals get their authority from Chapter 7, peace and security.
Probably one of the mistakes of both the Rwanda tribunal and the Yugoslav tribunal was in the early days, they act too much like a normal court in the sense that they both forgot about the people in the countries where they were supposed to be (inaudible) audience.
But also in the aspect that they follow the available evidence and didn’t really have a political strategy. We all recoil as lawyers (inaudible) politics, but a strategy that would focus on getting at the spoilers, getting at the people who were still in Bosnia and the former Yugoslavia who were wielding power, and there were so many war criminals to choose from, why not make a decision like that.
It seems to me that just in the early indictments from the Sierra Leone special court there maybe taking that road, but it’s not a very popular position in the legal community. I just wanted to get your reaction to that.
Gary Bass: I think that’s a great question. Richard Goldstone, I think by the time he stepped down, was extremely good at it, and the ideal prosecutor would be somebody who is actually incredibly political, but is never seen to be political, because a lot of the political power of this is not being political.
Michael Ignatieff has a great essay called “Human Rights as Politics,” and I think that the human rights movement and war crimes tribunals pretend to a kind of neutrality, that there is a distinct politics to saying that you want to prosecute war crimes, that that’s a politics that includes humanitarian intervention because you get into if war crimes should be subject to legal sanctions, presumably they ought to be subject to military sanctions, otherwise you go into a somewhat Clintonite position from back in 1993 of saying that war crimes should be prosecuted but not prevented. “Message: I care.” So there is a politics associated with that.
I know that the judges aren’t going to say it, but you set up this institution. It pushes against people like Milosevic and in favor or moderates like Mesic, that that’s the direction in which you are subconsciously trying to steer. So shouldn’t a savvy prosector pick people according to that criteria, who’s going to have the most impact? So, yes, I think that’s exactly right.
Some of this stuff I tried to do for my book was you do find some evidence of that. For instance, Holbrooke’s team wanted to have meetings with Karadzic and Mladic after Goldstone had indicted them. Holbrooke goes secretly to Goldstone and says is this okay with you, and the answer probably should be no.
-- indicted people are presumably beyond the pale, we indicted them for crimes against humanity (inaudible) had talks with them. Goldstone in fact says fine with me, don’t make a big fuss out of it. So operating I think much more in the political domain, that his formal answer is actually I think somewhat different to what he’s saying secretly to the U.S. government.
The problem of course is that can begin to look incredibly comprised, that the prosecutor who is anybody so dependent for intelligence on CIA that it can look incredibly bad, and we just have to walk this very, very fine line.
In terms of tunnel vision, I think this really is a problem, that you have lots of people in The Hague -- you remember what it looked like when it started? It was nothing. But now it’s taken over the whole building.
Question: There’s over a thousand people.
Gary Bass: Yes, it looks like a real institution, sort of unrecognizable from the pathetic three guys sharing the computer that it started out (inaudible) running around saying we don’t have a prosecutor. Could we please get a prosecutor?
It’s come so far, but it’s not so big that there are lots of people who are known for their much higher quality of staff, but are there to do a clerkship and don’t know anything about ex-Yugoslavia, don’t know anything about the impact that it’s having on the region, and it kind of takes on a life of its own.
The same thing in Arusha, it’s obviously in much worse shape, but this same sense that it’s somewhat detached from what’s going on in the region, somewhat detached from the politics, they don’t seem to have a good sense. Carla Del Ponte often will announce an indictment or announce some new set of demands right before an election, and you’ll have the reformers in government saying for God’s sake, couldn’t you do this after the parliamentary elections are over? We’re desperately trying to hold this together and you’re so tone deaf with this that you play political a little. Would that be so wrong? Del Ponte, obviously, is not the most diplomatic.
Question: One of the more nuanced criticisms of the International Criminal Court which just inaugurated its judges earlier this week is exactly this, is that it’s just a legal entity unto itself and it’s totally separated from politics. In fact, that was one of the arguments that people like -- making in the NGOs, that we need to make this independent. But how do you think that’s going to play out in terms of its ability to be effective?
Gary Bass: I don’t know. I’m actually not all that huge a fan of the ICC. I’m not a fan of the way the Bush administration has handled it either, which I think is being boneheaded, that they’ve managed to take a conversation that should be about war criminals in other countries, and turned this into a conversation about the United States, and I thought that was kind of stupid.
I think that the ICC has been given an impossible mandate, and I think as a result of a legalistic imagination that lawyers didn’t like the idea that there would be unequal application of justice depending on which region you were in. It doesn’t make sense that a war crime could be committed in Bosnia and that would get prosecuted, but a war crime can be committed in Congo and it wouldn’t get prosecuted because there’s no tribunal that covers Congo. So there should be just one big tribunal that covers the whole planet. That’s the direction in which international lawyers naturally go.
The problem with this is that you can’t get equal application of justice. As a political scientist, I’m totally comfortable with this, that of course there will be an element of power politics behind all of this. My idea is get liberal states to use that power politics in a smarter way rather than in a stupider way, but I’m not pretending that it’s not there.
We said to Serbia, there’s money in it for you if you’ll turn over Milosevic, there’s EU accession in your future, you could have Serbia in NATO rather than NATO in Serbia, if you will play ball. I have no problem with that. What the ICC does though is it has I think in some ways an impossible mandate, that what’s going to happen at some point is that China will commit war crimes in Tibet, Russia will commit war crimes as it is currently doing in Chechnya, maybe the U.S. will do something bad in the course of the war on terrorism, and there’s going to be enormous pressure on the ICC prosecutor to launch some kind of investigation.
Then one of two things happens. One is that you don’t. You say there’s no point, if I indict a Russian general, then Putin is just going to be furious, it’ll create nationalist backlash in Russia, but we have no chance of actually getting our hands on this guy, that Russia is just much too powerful a state, they can resist it. So let’s not bother. Let’s just not do the indictment. Then you look politicized. You’re back in the mud, in the same old power politics that the ICC was supposed to be transcending.
The other option is that you can indict, in which case you’re not going to get them, in which case you look impotent, and that’s not good for you either. So I think in some ways it’s just an impossible mandate, that they’re damned if they do and damned if they don’t, and I’m not sure that it was such a good idea to try and create an institution that would be able to call to account not just some weaker countries, once supported by stronger countries which might be a manageable task, but to just bring justice to the whole planet.
Question: In between collective guilt and individualized responsibility, the question of structural of institutional guilt which I know is somewhat a part of the discussions of legal justice versus truth commissions. But in Bosnia, I am of the opinion that there has been almost no international decision from ’92 to 2002 that was not about containing the crisis. I know a lot of Bosnians think that in view of the ICTY as being part of that international attempt, even though at times its position vis-a-vis the international community sort of half in and half out -- my question is, what do you think of that generalized critique?
Gary Bass: Which institutions, meaning like OKW?
Question: Republika Srpska, for instance, so you can indict Mladic and Karadzic, but Republika Srpska is entirely legitimate and accepted. So genocide happened in Srebrenica, but the Serbs still have it and there’s no change.
Gary Bass: Two things. One is the war crimes are just one part of the larger reconstruction process and you have to figure it out, properly so, but you don’t want to have them eclipse things like return of refugees. Srebrenica is incredibly tough. It’s so hard to figure out what you could do there. Obviously, Bosnians are right to be horrified by that.
I think indicting institutions is very hard, that this was something obviously that was tried at Nuremberg, that the SS was outlawed and then in order to convict somebody all you had to do was prove that they were a member of the SS, because the SS was by definition a criminal organization, anybody who was part of that was by definition of a war criminal. You didn’t have to go through the full panoply of trials.
From the debates about it, this was really done because of the numbers, probably. The number of perpetrators, Christopher Browning knows, the number of hands-on trigger pullers who by any normal sense would deserve prosecution, the ordinary man, would beyond the capacity of any criminal system. You could never do it. The grand total, I believe it was 3,800 of people prosecuted in Nuremberg and then the subsequent trials. What would you give as a number of actual trigger pullers and hands-on perpetrators?
Question: Probably 100,000, but I think the Nuremberg trials scratched the surface, but the German trials from the late ’50s through the ’80s is where the real numbers -- they investigated over 80,000 people and brought to trial I think 11- or 12,000. So that the same problems with Rwanda, how do you get to that vast kind of number?
But it does seem to me there’s more than just the individual justice at stake there in the sense of one thing you didn’t mention that I’d like to plug because of my own profession, and that is even if Goering is smug at Nuremberg, if he had known that as a result of all the information that was going to come out what history was going to do to him, I think he would have been much less smug. I think Milosevic in the end is going to -- they’re going to be put into hell’s history for eternity, and that’s a kind of justice. Hanging them (inaudible) but when you put these guys in history’s hell forever, that is a form of justice that I think is important in terms of the moral lessons that sets the kinds of standards that we hold.
Gary Bass: I agree with that, actually. I say this in the book, I didn’t say it here. I wish I had thought of the phrase “history’s hell,” which I will shamelessly rip off. I think that’s very important especially with these guys. I think Milosevic is obviously an egomaniac, that it’s so important to him how he is perceived. With Western officials he’s unctuous and ingratiating, whereas with Kosovars he’s belittles them and is arrogant.
So he cares enormously about what world history is going to say about him, and he’s fighting because he pretty much figures he’s convicted anyway, he’s fighting for history. So I think knowing what history’s judgment on him will be that he is on the list with Pol Pot, Idi Amin, and Goering, so that’s something. I’m for that. If you can think of any other things --
Question: I strongly agree with your assertion that to try Milosevic in Serbia would have been the best possibility if it had been politically feasible, and also your uncertainty about the prospects for the ICC. I think the piece that I didn’t hear within that is in the world today you’ve got a combination domestic/international jurisdiction going on in East Timor, in Kosovo, and now in Sierra Leone, and then you’ve got a lot of cases in Belgium and other places where you’ve got international crimes being tried in domestic courts in ways that 15 years ago, even 10 years ago, this was just -- what the ICC may be able to do is create an atmosphere that’s conducive for more domestic prosecution of international crimes. First, maybe that’s just hopeful. But there is some reason to think that that’s beginning to happen, and how you look to that.
Gary Bass: I might actually put it the other way, that I think there is a lot of anxiety about universal jurisdiction, the idea that different national courts will take it upon themselves, or they actually won’t even take it upon themselves, there will be sort of (inaudible) legislation that makes it possible for whichever plaintiff comes along to use the Belgian courts or whoever’s courts to push an indictment.
Because I think the war crimes prosecutions are a form of politics, that it’s war by other means often, then I think you can or potentially could have cases where we wouldn’t like the politics that are being pushed through these lawsuits. In some cases we would, and in some cases we wouldn’t. You can imagine if it had been up to local governments during the wars in ex-Yugoslavia to choose what cases would be brought, you would get -- and this actually happened, that Serbia had its own war crimes prosecutions, Croatia had its own war crimes prosecutions. Conveniently you had the international tribunal standing above it all and they would say under rules of the road when there were prosecutions in Bosnia, the war crimes tribunal in The Hague would go and look at different Bosnian prosecutions and say whether or not they thought it was okay or not. That kind of function I think is very useful, and we haven’t quite got there with the ICC.
So I would say in some ways the argument for the ICC is that Henry Kissinger hates the ICC for obvious reasons, although the ICC doesn’t have retrospective jurisdiction, it doesn’t go back in time, which was a concession to the U.S. and to other powers, and it’s also smart. You don’t want to open up all of human history to prosecutions. We’ve got to draw the line somewhere. I think it would have been impossible.
Kissinger doesn’t like the ICC and he doesn’t like universal jurisdiction. It’s not exactly clear what he does like. I think the truth is that he likes impunity both for selfish and for principled reasons. Kissinger’s first book is about the Napoleonic wars and it’s full of praise for the statesmen at the end of the Napoleonic wars for not being vindictive and punitive towards France, that it’s sort of an anti-Versailles. He just thinks when you inject moralism into international politics, it makes it more overheated and makes it more vicious.
I don’t mean to totally slag on Kissinger, although I also think the next time he goes to the Savoy in Paris he doesn’t want to have gendarmes show up. So you can have the ICC as a way of keeping all of these Belgian style universal jurisdiction prosecutions from getting out of control, and that might make the process more manageable. A sort of good cop, bad cop thing, like telling nervous Bush administration officials we know you hate the ICC, but you’re going to hate universal jurisdiction even worse. ICC, at least potentially you can influence it, whereas universal jurisdiction, good luck trying to influence every single domestic legal system in the world. Have fun.
Question: Did you mean that -- complementarity -- complementarity principle -- more domestic prosecutions would go on, legitimate or not?
Question: There have been all over Europe people from Rwanda and from the former Yugoslavia, papers that have been taken, that have significant precedents that they’ve set, and even Poland revisiting cases that have been closed for decades in very significant ways -- there’s a whole variety of stuff happening and it’s really hard to brief the whole scope of it. But ICC is kind of the thing which makes states realize that they have to clean house.
Gary Bass: I’m for that, but I also think that there are potential down sides for it.
Question: Of course.
Gary Bass: Let’s say it spreads. So Rumsfeld floated a deal in front of Saddam saying if you’ll take a dive then we don’t have to have a war. What would happen if we’re in a world 10 years from now where universal jurisdiction is a normal part of the process, it’s all over the place, so Saddam knows that wherever he goes he will be prosecuted, or that we can’t offer him a pleasant exile somewhere which obviously while morally repulsive if that meant dodging that we’re going to have like next week, then that might be a nice thing.
We have courts everywhere that are holding up inflexible standards that there isn’t political accountability, and it could be a problem, and I think that the ICC at least is potentially a more manageable institution than universal jurisdiction might be; with universal jurisdiction we’ll see.
Question: There is never going to be that many countries go all the way to Belgium (inaudible) but there are various degrees of jurisdiction that’s extraterritorial, that it doesn’t have to be -- take any crime from anywhere -- but like for example there are European courts taking on Argentinean generals who happen to kill Swedish or Swiss people, and they end up playing a role.
Gary Bass: You can’t make the case that this is an institution (inaudible) because it’s going to be weak, that I want to do this because it’s not going to really get too serious, that if you want these things to happen, and like we really have to want them to happen, just that I think people who said with the ex- Yugoslavia tribunal in ’93 we want this, but don’t worry, it’ll never get Milosevic. You have to think what if the institutions get stronger over time, international institutions have this sort of Frankenstein’s monster like quality to them, which is I think a good thing for human rights advocates because it says there’s no Trojan horses, we can sneak these things in.
But then if we’re going to do that, we also as human rights folks have to be honest about might there be bad consequences to some of this, too.
Question: I just want to ask a question. I wanted to ask (inaudible) Serbia result -- a percent of people have (inaudible) attitudes towards Milosevic -- I remember I talked to some Serbians in Belgrade, I think most of the Serbians have Third World attitudes towards Milosevic because Milosevic did lots of bad things to Serbians in Belgrade, assassinations, persecutions. So my question is actually besides the trial, what else the court could do to help these countries to internalize the result of the trial.
In Belgrade might have more hostility towards Milosevic, but in Croatia actually, all the Croatians I’ve talked to are really hostile to the West. It’s now the case of victor’s justice, I see in these people’s eyes it’s the West’s justice.
Gary Bass: In some ways it’s weird talking about this stuff because you have to take into account the current international situation, that I feel as though on the one hand I’m talking about war crimes tribunals which are part of the U.N. system. It’s not clear to me that we’re going to have a U.N. system anymore, that I think NATO is in the midst of a massive crisis. Say Turkey gets attacked and invokes Article 5 and France and Germany don’t respond, then what exactly is NATO?
So all of this architecture that I’m talking about with war crimes trials rests on a certain amount of functionality in the U.N., a certain amount of functionality in NATO, and a willingness of Russia and China, they don’t like it, but they’re going to play along. It’s not clear that we still have that. So all of that kind of post-1989 euphoria seems to have pretty much completely evaporated, so that’s a cheerful thought.
It’s always the hardest thing, I don’t really have a cookie cutter answer, but to get people to confront their own government’s deeds. It’s remarkable, you bring up Kissinger, as an example, and lots of Americans bristle at this. The weird thing is that if you actually -- because I’m at Princeton, which is although admittedly kind of a Republican kind of place, it’s still a college campus, it’s pretty liberal, so students will kind of bristle when you mention -- talk about whether Kissinger might be a war criminal, and Robert McNamara -- it’s always Kissinger who’s talked about and not McNamara, or Kennedy administration people, or Kerry, these discussions, and people really kind of feel angry about it.
Then you ask them what they think about Vietnam and they say it’s terrible, we did the worst things there, we shouldn’t have been there, it was such a mistake. So why are you sympathetic to folks who were in charge of that (inaudible) it’s much harder.
That’s why I think if it’s possible that you can get local authorities who will do it, then that’s preferable, that if you can get people to do it with a Serbian accent, then it’s easier. Because if you dodge this with a cheap argument that it’s just victor’s justice which is the war criminal’s easy answer, rather than having to look into their souls -- and for that, one thing I think that would be useful is the U.S. can set a better example. I don’t think that we will, but I think that that would be nice. I also think it might be in some ways politically helpful to us.
Question: Are you going to explain what you’re talking about -- example?
Gary Bass: Yes, like we could have a truth commission for the cold war. It would be us and the Russians, and the Russians would love it because it would be like a nostalgia trip and they’d get to be a great power again and a reminder of the good old days. But it would be great for historians because part of it would be rather than having the U.S. screw us around on FOIA requests, they would finally just dump everything. I finally got my FOIA request for my book 2 weeks ago. The book has been out for 2 years. I filed the request in ’98 and it finally came through, and now I’m appealing for this stuff. So it would have that advantage.
But also I think we as Americans think of ourselves that basically we’re a good country and we try and do the right thing and we try and promote democracy and human rights, and in the cold war we did some bad stuff because we had to compete with Russian and Chinese communism and in the course of that we backed some of these right-wing dictators who we probably shouldn’t, we did some really horrible things. But now we regret it and we feel that we only did it because of the cold war.
I think actually some sort of apology, some sort of accounting to people in the countries that suffered from this would be quite powerful and might help to restore or might help to fight some of the anti-Americanism that’s out there. It also sets a better example. Definitely when you go and talk to people in Serbia and say why don’t you guys prosecute your war criminals, and they say why don’t you prosecute your war criminals. I think there should be some prosecutions for Vietnam. I think that it would be good for the country -- painful but ultimately helpful.
Question: What do you think the impact of the Djindjic assassination is going to have on the prosecutions?