MuseumDESCRIPTION:
Adam Smith, who comes from a family of Holocaust survivors and trained as an international lawyer, discusses his book After Genocide: Bringing the Devil to Justice. The book is critical of the current system of international justice.
TRANSCRIPT:
BRIDGET CONLEY-ZILKIC: Welcome to this week’s episode of Voices on Genocide Prevention. With me today is Adam Smith, who is an international lawyer and the author of the recently published After Genocide, Bringing the Devil to Justice. Adam, thank you for joining me today.
ADAM SMITH: It’s good to be here.
BRIDGET CONLEY-ZILKIC: Your book takes a unique perspective on comparative international justice, one that is much more critical of -- the processes is a part of it, but I think the larger picture, critical of what international justice can actually achieve for the places it’s supposed to be responding to. But let’s start, before we get into the more critical part, can you talk to us about how you got involved in the issues of international justice?
ADAM SMITH: Well, I didn’t start as a critic or as a skeptic or whichever way you want to call it. I started as a champion. I started as a champion of international, not to international justice, international solutions. I’ve always been involved, I used to work at the United Nations, the World Bank, and the OECD before that, then I went to law school. And when I went to law school, one of the reasons was because I saw the Yugoslavia Tribunal and was excited by it. Historically, my personal story is that my family are Holocaust survivors and non-survivors and that history is very much a part of who I am. And so I grew up venerating Nuremburg and those sorts of international solutions in the wake of World War II and then developed my career through that lens. And so when I went to law school, the whole idea of a new Nuremburg was very exciting to me and so I managed to get to The Hague, the summer after my first year in law school. I worked for the American Embassy in The Hague, which has a very interesting portfolio of basically running the U.S. relationship with all of the tribunals in The Hague, including the Yugoslavia tribunal. And that was my first real on the ground exposure to international justice.
BRIDGET CONLEY-ZILKIC: And when did you begin to have cracks in that belief system?
ADAM SMITH: Pretty soon after getting to The Hague. I managed to spend a lot of time at the ICTY. Of the portfolio that was definitely the one I was most interested in. And I immediately saw some interesting issues, even as a new law student, there were some issues with the legal structure of the courts that I was questioning about the fairness of trials or the speed of the trials, which was even more, sort of, questionable. But the biggest trouble I had was when I started chatting with people from the Balkans who were in The Hague. And so I would talk to them and I would say you know, “What do you think about what’s going on here? You know, this is great, this person was convicted, this person was not convicted.” And they would sort of look at me quizzically and say, “You don’t really know what you’re talking about. You don’t know what’s actually going on in the Balkans, that’s what we want to talk to you about.”
The gulf between the statements coming out of The Hague and the statements that I was hearing coming out of the Balkans was so great that I had to begin questioning. I had to begin questioning one or the other. And to be honest-- and to be fair, I started questioning the people in the Balkans before I started questioning people in The Hague; I thought these guys must be wrong. There must, you know, it really was a very small sample so maybe these guys are just sort of the extremes, they were in The Hague after all, what were they doing there? And so I managed to get to the Balkans and I found out that they weren’t the extreme, they were very much in the mainstream, and throughout the Balkans that is.
BRIDGET CONLEY-ZILKIC: And as you traveled, and you say throughout the Balkans, so you spoke with people in Serbia, Bosnia, Croatia and Kosovo, the main areas where there was violence.
ADAM SMITH: Right.
BRIDGET CONLEY-ZILKIC: What were the more specific complaints or issues that people were having with the court?
ADAM SMITH: There were many. I think the biggest one is sort of a group of criticisms that could be categorized under “distance.” The biggest distance is one that’s pretty obvious to everybody, you know it’s about 1,000 miles or so between The Hague and any parts of the Balkans. That distance is pretty significant, especially for very poor people who obviously couldn’t make their way to the Netherlands for financial reasons and other reasons. But the distance was more interesting to me when they started talking about the mental and sort of spiritual distance. There was, I remember, perhaps one of my favorite conversations I had there was with a group of law students in Sarajevo.
I was talking to them about the ICTY, the Yugoslavian Tribunal, and they said to me that they were very upset about plea bargaining. Plea bargaining? As a law student I knew what that was, you know, it’s the way that a prosecutor can either reduce charges or even dismiss charges in exchange for a defendant basically admitting to a crime or turning state’s evidence. And I asked them, “What do you mean?” They said, “Listen, plea bargaining is completely unknown in the Balkans.” And indeed, it’s unknown pretty much everywhere. And there was one individual in particular, they were very upset about, a woman by the name of Plavšić who was definitely a Serbian war criminal by any stretch of the imagination. She had a plea bargain that the prosecutor of the Yugoslavia Tribunal gave to her in exchange for pleading guilty so that they could go get more people. She was given 11 years prison.
For these people in Sarajevo, these students, they were up in arms. And they were so angry that the quantitative nature of justice, that is we can get more people now, completely trumped their understanding of the qualitative nature of justice. Whereas this Plavšić woman was crazy, you know. I mean it was-- she-- her sort of anti-Bosniak fervor was sort of legendary and that she would only get 11 years for playing such a central role in horrific crimes was just so unconscionable to these people.
Added to that, there’s another distance component which-- so I had no idea about this plea bargain business until I spoke to them. I also didn’t quite understand that the fact that there’s no prison system in the international justice system and so prisoners are basically put wherever to whatever states willing to host them and in Plavšić’s case it was Sweden. Sweden has offered so that’s where she currently is. And for the average Sarajevian again, this is unconscionable also because not only is a prison in Sweden significantly nicer than the accommodations she would’ve received had she been locked up in Sarajevo, but the line that they gave me, which I thought was hilarious was, that they’re convinced that in a Swedish prison, you get birthday cakes and tango lessons. I’m not sure if that’s true, but that’s certainly the line on the street and so that this woman gets a small amount sentence and birthday cakes and tango lessons means that justice for them has not been done.
That’s some of the distance issues that sort of really spoke to me.
BRIDGET CONLEY-ZILKIC: And you moved, in the book anyway, you move beyond the Balkans and look at the ICTR, the International Criminal Tribunal for Rwanda, and as well you look at Sierra Leone, the special court there and a little bit of the Cambodia court as well. When you started looking then at other scenarios, did you see these patterns repeated?
ADAM SMITH: I did. I did. I mean the distance issue was interesting because the distance is still there for Rwanda, the court is in Arusha, which is Tanzania, which is much closer as the crow flies, from The Hague to the Balkans, but in reality, not actually much closer. It’s just as hard to get there, if not harder. And in Sierra Leone, it’s actually interesting also because there is distance even though there is no distance at all. The court is located in Freetown, the capitol of Sierra Leone. But what’s interesting about Freetown, and you can see this all throughout, was the distance there is the difference between this incredibly immaculate courthouse and the surroundings of Freetown, which are anything but.
That’s one of the other big problems people have when it comes to distance is the cost and the expense and people say, “Well, justice is expensive.” And it is. And it should be. But the cost of the Yugoslavia Tribunal and Rwanda Tribunal, Sierra Leone, that’s not the issue that I had or at least the many people on the ground have, it’s rather the absence of funding to local institutions. And so they’re busy investing hundreds of million dollars in The Hague, which is fine, but very, very little, until very recently, in places like Sarajevo and places like Kigali or even in places like Sierra Leone, other than in that one international tribunal that’s there.
And the disjuncture in finances is pretty amazing. The biggest that I get is, again, out of Sarajevo: for $16 million, the international community managed to get a new courthouse, the State Court of Bosnia and Herzegovina and operations of that courthouse for about two years. Sounds like a lot of money, and it is. But $16 million under the current budget of the ICTY is about half a month of operations. The difference is pretty amazing. And I don’t want to focus too much on money because I think that it-- that what the ICTY is doing costs money and so there should be some money there, but that that disjuncture is pretty amazing to me. And of course, that amount of money is not even known by people, you know, in the Balkans or in Rwanda for that matter, people are amazed when you tell them how much these things cost. They sort of say things like, the entire system of Bosnia could have been completely, you know, re-jiggered, you know, for that amount of money and they probably wouldn’t be that far off.
BRIDGET CONLEY-ZILKIC: I always found it shocking and again, like you say, the international justice has to be to some extent expensive and it’s, you know, it’s an investment that’s made. But to see that perpetrators of the Rwandan genocide, there’s one in particular who was-- had AIDS, and was getting treatment because he was in the custody. And you simply cannot have a situation where a U.N. court has someone in custody and denies them medical aid. But the shocking injustice was that women were still dying directly from the effects of the genocide from contracting HIV by being raped. And for many, many years, until many of them died, they were not being able to afford those medications.
ADAM SMITH: Right.
BRIDGET CONLEY-ZILKIC: And it’s not ultimately or necessarily an indictment of the international system, but I think that, that discrepancy that you talked about, the financial, you know, this is development-- the developed world doing something for the underdeveloped world. But that’s a huge gulf.
ADAM SMITH: Absolutely.
BRIDGET CONLEY-ZILKIC: And how you focus that money and what you expect it to achieve is at least worthy of questioning and probing. So what else did you find besides this distance factor? What were some of the other complaints or issues that people had as they started learning more about how the tribunals functioned?
ADAM SMITH: One that was also very interesting was one about timing. The timing issue is interesting because there’s something called jurisdiction, which basically means the crimes over which the court can pass sentence. And the jurisdiction is to find not only subject matter, genocide, crimes against humanity, but time wise. That is, all crimes from January 1, 1991, until present or some constrictions thereof. All of the international courts have been incredibly temporally constrained and that constraint, from a practical perspective was absolutely critical. But on the ground again, that constraint is an injustice. You see this in Rwanda, you see this in the Balkans most clearly.
And in the Balkans, the thing that was so interesting to me was that people started talking, in Serbia, especially about the Ustasha. I never heard of the Ustasha before I went to the Balkans. Ustasha were horrific Nazi’s in World War II that did horrific things to Serbs, Jews, all sorts of people. And what the Serbs were upset about was that the Yugoslavia Tribunal was getting them, ’cause their jurisdiction was from 1993 on, but not Croatians, not the times when the Croatians had the upper hand, 1940’s for instance. And you might say well, 1940’s was a long time ago. There were still these Croats running around that were still Ustasha. And there were Serbs that were still very scared of them. And there were Croats who thought that maybe there should be trials for Ustasha, and similarly for Serbs. But that wasn’t on the cards.
Similarly in Rwanda, the tribunal is limited to having one year, the year of the genocide and that was the year when the Hutus did unspeakable things to Tutsis. That’s absolutely true. However, that history the Hutu/Tutsis, both in Rwanda and next door in Burundi, is a horrific generation or two of genocides and counter genocides and killings and counter killings on both sides. And to limit a court, in the eyes of Tutsis or Hutus or in the eyes of Serbs to the time in which they had the upper hand it’s sort of a priority, going after the Serbs, when in fact, you should be going after more people or going after the Hutus, when you should be going after the Tutsis as well.
That’s sort of this a-priori unfairness that people sort of talk about that I thought-- again, you wouldn’t hear it, you wouldn’t hear it or you wouldn’t, sort of, get it unless you, sort of, talked to people on the ground to sort of see how alive history is for many of these people and it certainly is. And not only is it alive just actually on a day-to-day basis, but it informs genocide. Genocide usually doesn’t come out of on a Monday to a Friday basis, but it’s usually based upon, you know, years or even generations or arguably centuries of perceived injustices and hatreds and whatnot. And for that to be out of reach of all these tribunals, which it is, is sort of unconscionable. Similarly, ICC, the International Criminal Court, only has jurisdiction from 2002, when it first-- when it started, sort of, being online and that’s fine. But a lot of the crimes, in fact all of the crimes, the first four cases they’re looking at have geneses that are significantly longer than 2002. And they were crimes that were associated with the current crimes that existed before 2002. And so for many people, and for me included I guess, that’s an unfairness. That doesn’t speak much to justice. Again, it speaks to practicalities and pragmatics, but it doesn’t speak to justice and I think people need to sort of recognize that.
BRIDGET CONLEY-ZILKIC: I think too, and the book draws this out, is also the expectations that various groups who are engaged in the practice of international law, whether it be from victims or from-- anyway, groups who come from the places where these events have happened versus international lawyers, political folks who are engaged at all levels. What are the expectations for what international legal proceedings, which I would differentiate from justice as a concept, what can they achieve? In your review, what do you think was achievable by any of these courts? And then, what was clearly not achievable, I mean clearly-- you’ve just said that history, a serious reckoning with historical legacies is not something they’ve been able to achieve. We’ll start with the positive though. So what do you think that the courts actually can achieve?
ADAM SMITH: Well, I think the goals of the courts or the sort of the majesty of the task was impressive and perhaps you could only do in, sort of, a post Cold War era when, at least early on, everybody was, sort of, on board with the same ideas. And I think some of the benefits in international justice, some of the new crimes that have sort of been defined, you know, the idea that incitement to genocide is in itself a crime, the idea that rape is an internationally cognizable crime. These are incredible, important findings that we wouldn’t have had, I don’t think, without international justice. So I think that’s important and that’s important to recognize. But that also, I think, speaks to the problem, or the limitations.
So there are these incredible findings that are sort of on the meta-level, people can talk about them in academics, but on the ground, that has very limited impact. And that, I think, is he limit. I mean international justice, for all its good, is a very blunt instrument. And a lot of these crimes that need to be dealt with from a justice perspective, even just working them out perspective, you need a scalpel. You need to really go in there and see the Ustasha, who were they? The Chetnicks who were they? Hutus and Tutsis and so on and so forth. To sort of be up there, up top and to say that this is a crime, is good. But it’s very hard to then see that translate on the ground and that’s the frustration because that is unquestionably good that the international community has come out to call things what they are. But the challenge has been: now what?
BRIDGET CONLEY-ZILKIC: And then we’ll end then with, what are your recommendations for improving the practice of post-conflict justice?
ADAM SMITH: I guess there are two. I mean, the most important one, I think, is a flexibility that my concern is the International Criminal Court and as we move down that road is actually going to limit the flexibility, but in fact, if you look at, what I would call successful post-conflict, post-atrocity rebuilding efforts, it’s been marked by flexibility. You’ve got the Truth and Reconciliation Commissions, for instance, which arguably isn’t justice at all in the eyes of the ICC, criminal justice. You’ve got lustrations, which occurred in Eastern Europe, which again is you know, not quite justice in the way we would think about it. So I would argue that the first important thing is to keep a flexibility, which I argue in my book, you will have to do for various reasons that are just practical to the ICC.
And the second thing is that, if we decide that trials really are the be all and end all, so be it. But we should also listen to what even activists have to say. I mean, Ken Roth is very common. He says, “You know, it’s obvious we should have these trials in the locality, but it’s impossible to do so.” I demonstrate, I think, in my book, I hope convincingly, that in fact, it’s not impossible or in fact it’s more possible than most people give credit for in places like Croatia and places like Sierra Leone and places like Rwanda. You’re not going to have perfect domestic trials by any means. You’re not going to have perfect international trials either. But I think that if you actually listen to that and the importance of domestic, domestically understanding where the justice is and to develop those institutions and those understandings and those reckonings, I think trumps the idea of having, sort of, a super-national justice that is sort of one-size-fits all, which again, on the ground, doesn’t actually appear to fit.
BRIDGET CONLEY-ZILKIC: Thank you very much for speaking with me. And again, it’s Adam Smith, the author of After Genocide, Bringing the Devil to Justice.
ADAM SMITH: Thank you.
BRIDGET CONLEY-ZILKIC: Thank you.
NARRATOR: You have been listening to Voices on Genocide Prevention, from United States Holocaust Memorial Museum. To learn more about preventing genocide, join us online at www.ushmm.org/conscience. There you’ll also find the Voices on Genocide Prevention weblog.
