Judgment Day

The wife in Ariel Dorfman’s Chile-based play “Death and the Maiden,” who finds that the kindly man brought home by her husband has the voice and hands of her former torturer, need not monopolize our sympathy. At least she was alive and able to get a bit of her own back. More painful must be the experience of all those women in many countries who see their former torturers and their husbands’ and sons’ presumed murderers, all safely amnestied, shopping in the supermarket or waiting at the bus stop.

Yet even these notorious instances of unpunished inhumanity come nowhere near the volume of offenses surveyed by Aryeh Neier against (to cite the 1907 Hague Convention on the Laws and Customs of War on Land) “the usages established among civilized peoples, the laws of humanity, and the dictates of the public conscience.” War crimes in the familiar Nuremberg and Tokyo sense are by no means the whole of what “War Crimes” is about. The struggle for justice is carried on at all levels of judicial activity on every continent and, for the most part, within national legal frameworks. War crimes, such as those that abound in most armed conflicts, should be punished by national courts and tribunals but often are not. What has brought certain recent crimes to the attention of international tribunals and what has prompted the former director of Human Rights Watch to write this book is their association with the crime of genocide--perfect examples of which, he regrets to observe, have recently been on view in Rwanda and the former Yugoslavia.

Our world since 1945 has by no means been free from horrors of these kinds, but Neier argues that our decade may mark a turn for the better. The ground for his mild optimism is that the international community, affronted by the crimes committed in Rwanda and the former Yugoslavia, has at last taken action consistent with its ideals. In resolutions of May 1993 and November 1994, respectively, the Security Council of the United Nations established international tribunals to deal with those appalling cases. Nothing like this has been done since the Nuremberg and Tokyo tribunals right after World War II, and the one established to deal with ex-Yugoslavia marks an advance on those 50 years ago by having “a mandate to prosecute and punish malefactors from all sides. . . . Accordingly, unlike its predecessors, it is not susceptible to accusations of victors’ justice.”

Progress has admittedly been patchy. Not many of the parties arraigned have been arrested. Two of the principal Balkan ones, Radovan Karadzic and Ratko Mladic, still walk openly in their neck of the Bosnian-Serb woods, and others have been elevated to high office in Belgrade. Not all member states of the U.N. are as dutiful as they should be in support of the tribunal. But some impeccable “due process” justice has been done and, what is highly desirable from a universal point of view, may lessen the likelihood of similar criminalities being planned or committed elsewhere. The prosecutors, far from being discouraged by inadequate funding and the difficulties of the job, seem to have risen to the challenge. The issue of secret indictments, for example, has made possible the surprising arrests of unsuspecting parties on whom the sympathy of their own public authorities otherwise conferred virtual immunity.

The tribunal for the former Yugoslavia, sitting at The Hague, has the larger variety of crimes to deal with than does the one in Rwanda and has so far had the greater share of publicity. The tribunal for Rwanda sits at Arusha in Tanzania. Primarily concerned with genocide, it is embarrassed by inadequacies of budget and administrative support and suffers from our tendency to suppose that African affairs no longer matter much. Neier maintains that it matters very much indeed that the Rwandan genocide should be recognized for what it was: the most nearly perfect plan for a genocide since the Nazis’ and a more frightening one inasmuch as its executors were ordinary people, yesterday’s friends and neighbors, just like you and me.

Are we all, then, capable of such atrocity? That is one question uncomfortably posed by these events. Many of my quarrelsome compatriots in Northern Ireland passionately embrace versions of history and political ideologies at least as divisive as those that set Serbs, Croats and Bosnian Muslims at one another’s throats, but I don’t believe they will begin to commit genocide and thus provide Neier with material for an expanded second edition. (We look to the social scientist and the historian to explain how history, circumstance and culture produce the different results they do, case by case.)

Another awkward question is this: When a whole people appears to have willingly engaged in such deadly work, what sort of justice is done when only a handful of leaders can be brought to trial? What can break “the cycle of the collective attribution of guilt” in lands like the former Yugoslavia and Rwanda, and what future awaits a society in which so many murderers remain free and live next door? Will trial and punishment of leaders alone tend, by “individualizing guilt,” to let a guilty society off the hook?

Neier thinks not. With some help from Karl Jaspers, who famously confronted the matter in “The Question of German Guilt” soon after the war in 1948, he concludes that “[c]riminal prosecution and conviction of those who commanded and incited will help the thousands--or tens of thousands--of others to confront their own political, moral and metaphysical guilt.” This may be a bit optimistic. With regard to Germany, indeed, the postwar trials have been followed by some acceptance of collective guilt and a clear-eyed willingness to understand what the fatherland formerly did to Jews and gypsies. He argues that nations react differently to the vaccines of criminal prosecutions, such as Japan, where the terrible crimes committed against the Chinese--most notably the rape of Nanking in 1937--continue to be officially overlooked and where a clear vision of the crimes committed against prisoners of war and civilian internees in World War II is overshadowed by the sufferings of Hiroshima and Nagasaki.

Neier surely represents the views of the international human rights community and all of us right-thinking folk who like to go along with it, welcoming the work of these tribunals and trusting that they may be the harbingers of more international criminal justice to come. His story of their establishment, however, makes one wonder. Good historian that he is, he notes how “the propitious sweep of history” made possible--after 1989--actions by the Security Council that had not been possible in the preceding 40 years. Happy accidents abound in the detail of the story. Neier ascribes importance to the particular concerns of Lawrence Eagleburger, acting secretary of state in the last months of the Bush presidency. The Clinton administration found it politically profitable to make the project its own at a time when Russia and China found it temporarily expedient not to oppose it. The pressure exercised by Neier’s organization and its fellow humanitarian groups received unexpected backing from women fired up by feminist legal scholar Catharine A. MacKinnon to get the crime of rape properly stigmatized. The Muslim countries’ normal hostility to the idea of international criminal jurisdiction was neutralized by the fact that in this particular instance, Muslims seemed to be the principal sufferers. So the Security Council was able to do what it did in May 1993. But even so, another 14 months had to pass before a chief prosecutor was appointed (the excellent South African Judge Richard Goldstone), and yet another 12 before news of the Srebrenica massacre provided the impetus to override the United Kingdom’s hankering for a prosecution-dropping peace deal.

Such concatenations of happy accidents cannot be relied on to happen every time. Neier’s epilogue therefore concerns the project for a permanent International Criminal Court. With its origins in the earliest years of the U.N., this project is at last approaching consummation. A diplomatic conference for this purpose completed its business in Rome in July. Neier has been wise in advising enthusiasts not to hope for too much. Such a court’s inevitable limitations in size and income mean that its jurisdiction must concentrate on “what are being referred to as the ‘core’ crimes: war crimes, crimes against humanity, and genocide.” It cannot contemplate handling cases that member sovereign states have not already had an opportunity to deal with. The Security Council’s special interest, as (theoretically) supreme global peacekeeping authority, is protected. The United States’ peculiar sensitivity about external legal constraints has had to be accepted as a fact of international life. And so on.

The difficulties are obvious, the delicacies innumerable. Not the least of them will be judging whether a member state has honored its obligation properly to bring alleged malefactors to justice and, in the event of its being judged to have failed to do so, securing extradition. Just imagine the uproar if such a court had already existed and (what admittedly is very difficult to imagine) the United States had assented to its jurisdiction at the time of the trial and pardon of Lt. William Calley after the My Lai massacre. The times may be propitious for launching the court on the current flood of humanitarian concern and the drip-drip progress of universal human rights consciousness. But let no worshiper at the shrine of the U.N. neglect veteran diplomat Sir Peter Marshall’s idea for an additional Article 112 to its charter: “Nothing in the present Charter should be allowed to foster the illusion that power is no longer of any consequence.”

Neier has written that good sort of book that opens doors on every side of its main theme. One of these doors leads to the perennial problem of balancing peace with justice. This was brought painfully before us when the Latin American military regimes of 20 years or so ago made “peace” conditional on the amnesty of their own criminal members. Neier is good in his survey of the selective and surrogate sort of justice with which their erstwhile victims had to rest content--or not so, as in the case of Argentina’s untiring Mothers of the Disappeared. The ends of Communist regimes in Eastern and Southeastern Europe have produced a variety of lessons in how to deal, or how to avoid dealing, with former informers and “collaborators.” South Africa’s Truth and Reconciliation Commission may show us the best that can be done toward satisfying the demands of peace (accommodation of former apartheid supporters within democratic multiracial society) and justice (amnesty conditional on acknowledgment of crime and public contrition).

Then there’s the matter of freedom of speech. Can incitement to genocide and kindred atrocities be adjudged criminal? That there was such incitement in the former Yugoslavia and Rwanda is unquestionable; Serbian and Hutu government-controlled media explicitly urged their consumers to do it and piled up lies and libels in support. This had not previously appeared among the categories of war crimes, but the statutes of both tribunals have included it, and Neier (in company, I may add, with many respectable legal experts) argues they have rightly done so. His case certainly needs to be well-made considering that he was, about 20 years ago, one of the ACLU’s lawyers defending the freedom-of-speech rights of the American Nazis who wanted to march in Skokie, Ill. The big difference between Skokie in the late ‘70s and the former Yugoslavia in the early ‘90s, he argues, is that then there was plenty of free speech available for the other side and little likelihood of provoking imminent criminal action; now there is little or no free speech but great likelihood of criminal action. Non-Americans, who are often surprised by the uses made of the 1st Amendment, will be relieved to hear this distinguished advocate of human rights disclaiming any wish to export it in the interest of addressing “direct and public incitement to commit genocide.”