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The Quest for Justice

The Clinton administration was willing to restore democratic government mainly because this would deny thousands of Haitians fleeing to Florida a basis for claiming a well-founded fear of political persecution and, therefore, a legal right to remain in the United States. But the administration was not ready to cooperate in revealing the truth about the crimes of the military while it held power. Hayner writes:

When US forces invaded Haiti in the fall of 1994, they drove trucks straight to the offices of the armed forces and the brutal paramilitary group, the Front for Haitian Advancement and Progress (FRAPH), hauling away documents, photos, videos, and other material that contained extensive evidence of the egregious abuses of these forces, including gruesome “trophy photos” of FRAPH victims…. None of those approximately 160,000 pages of documents, photographs, videotapes, or audiotapes have been released by the United States back to the country to which they belong. They remain in US government hands, under the control of the Department of Defense. The assumed reason for this intransigence is not flattering: the United States provided direct support to some of those directly implicated in abuses, paying key FRAPH leaders as intelligence sources, and these documents would almost certainly reveal those connections and the complicity of the US government in supporting known thugs.

As Hayner points out, the Aristide government was also responsible for the truth commission’s failure in Haiti. She writes that its report “was never distributed widely in Haiti, and was not easily available to the public. There were no signs that the government was seriously acting to implement its wide-ranging recommendations, many of which pertained to reforming the country’s judicial system.” The commission’s mandate, moreover, covered only the three years of military rule, a period in which some three thousand to four thousand persons were killed in violent abuses of their rights. The commission had no power to examine violations before Aristide was ousted. Though not as horrendous as the abuses under military rule, sporadic killings and several threats of lynching were attributed to him and to forces loyal to him. The commission would have provided a more complete accounting of truth in Haiti if it had also investigated the events leading up to the 1991 military coup against Aristide after he became the country’s first freely elected president.

In common with most commissions other than the one in South Africa, the Haitian panel did not obtain the testimony of people who committed crimes. The former FRAPH leader (and beneficiary of the CIA payroll at the time) Emmanuel “Toto” Constant was given refuge in the United States, where he remains at this writing, while the US government persuaded Panama to accept as a resident Raoul Cedras, the former military ruler. Since amnesty was not available in exchange, criminal officials who remained in the country had no incentive to testify to the commission. Only a few have been prosecuted.

Amnesties are, of course, morally suspect where severe abuses have been committed. In South Africa amnesty was justified as part of the negotiated revolution in which the country’s white rulers agreed to relinquish power peacefully. It was the price for avoiding a prolonged bloody struggle. In Yugoslavia, on the other hand, Milosevic declined any such chance. Last autumn, when he lost an election he tried to rig, he sought to hold on to power, giving way only when forced out by a popular revolt. He made no deal that warrants an amnesty.

Moreover, those who negotiated an amnesty for South Africa’s apart-heid rulers spoke for the victims of apartheid and had themselves suffered from the crimes committed to preserve that system. By contrast, those who ousted Milosevic were his fellow Serbs. On any list of his victims, they would be far down. For a parallel to South Africa, representatives of Milosevic’s Croat, Bosnian, and Kosovar victims should be at the table for any negotiations over an amnesty. No one imagines that they would find it acceptable to spare him from prosecution. Hence, Milosevic and his associates would have no incentive to acknowledge and fully disclose their crimes. This is one reason why a truth commission in Yugoslavia could only supplement—not supplant—the process of doing justice.

Though the prospects of prosecution were dimmed in many countries in the 1980s by the reversals in Argentina, support for criminal trials picked up in the latter 1990s when the International Criminal Tribunal for the Former Yugoslavia (ICTY) began to acquire credibility. The UN established the ICTY in May 1993. After that, the UN took fourteen months before it designated Richard Goldstone of South Africa as chief prosecutor. For good reasons, most observers were skeptical that this effort to do justice would amount to anything. It was unclear how the tribunal would obtain custody of those it indicted, and it was widely assumed that it would be dissolved as part of an eventual peace settlement. The combatants in Bosnia evidently felt that they had little or nothing to fear from the tribunal; and, in fact, many of the worst atrocities, including the massacre at Srebrenica, took place after the ICTY was established. Elsewhere, the establishment of the tribunal had even less significance. Certainly it did not make the authors of grave crimes in other parts of the world worry about being called to account. The genocide in Rwanda took place after the establishment of the ICTY, though before a chief prosecutor was appointed.

Against all odds, however, the ICTY began to make an impact. Several factors contributed to this. Richard Goldstone established the credibility of the ICTY as much by the force of his personality as by the tribunal’s actual accomplishments under his leadership. Goldstone indicted Radovan Karadzic and General Ratko Mladic in July 1995. Tony Blair and his foreign secretary Robin Cook supported the tribunal after they were elected in 1997. The indictments of Karadzic and Mladic sidelined both men politically even though they were not caught: that they had been indicted excluded them from the Dayton negotiations later in the year, for example, and eventually turned them into fugitives.

Under Blair and Cook, British troops in Bosnia took the lead in arresting suspects indicted by the ICTY. (My own impression was that US Secretary of State Madeleine Albright wished to see American troops do the same, but she did not get the kind of backing from President Clinton that Cook had from Blair.) International pressure on Croatia to turn over Croat citizens facing prosecution also helped the ICTY get custody of more than half of the people it has publicly indicted.

3.

The credibility of the justice process has also been improved by the International Criminal Tribunal for Rwanda. Established by the UN in November 1994, the tribunal for Rwanda got off to an even worse start than the ICTY, but eventually it became more effective. Today, many of the Hutu leaders who were responsible for the Rwandan genocide, and who had no reason to give any thought to the ICTY when the genocide was taking place, are in jail cells under the custody of the tribunal in Arusha, Tanzania, either awaiting trial or already serving long sentences.

The arrest of Augusto Pinochet in London in October 1998, at the request of a Spanish magistrate, also revived the possibility of obtaining justice for official crimes. The judicial proceedings affirmed several important legal principles, including universal jurisdiction to deal with grave crimes and that a head of state does not have immunity. The judgment by the British Law Lords gave encouragement to the Latin American countries that had largely abandoned prosecutions after Argentina’s failure to bring further indictments in the 1980s. As a consequence of the Pinochet case, which continues in the Chilean courts, a few dozen Chilean military leaders are now in custody for crimes committed in the 1970s, for which they long enjoyed impunity. Pinochet himself has been put under house arrest.

One of the most valuable books to appear about doing justice is Gary Bass’s Stay the Hand of Vengeance. It tells the story of some previous war crimes trials that have been largely or completely forgotten, for example Britain’s attempt to prosecute Turkish officials at Constantinople after World War I for “crimes against humanity.” Though this term is usually thought to have originated in the statutes for the Nuremberg Tribunal, Bass, a political scientist at Princeton, recalls that it was used as early as 1915 in Allied charges against the Ottoman Empire for sponsoring genocide of Armenians. Following the war, Britain demanded that Turkish officials be held individually accountable both for crimes against the Armenians and—more important to London—for the mistreatment of British prisoners of war.

With a large British force occupying Turkey, several trials were held in Ottoman courts. One of those convicted in the first trial, Kemal Bey, lieutenant governor of a district where deportations and massacres of Armenians were carried out, was sentenced to death and hanged. Britain backed away from trials, however, after Kemal Ataturk’s Nationalists seized a number of hostages, including the brother of the commander of British forces in India. Eventually, in 1923, Britain and other Allied powers signed the Treaty of Lausanne with Ataturk providing an amnesty that ended all war crimes trials. The failure to pursue justice was one of the grievances of a newly formed Armenian guerrilla group that assassinated Young Turks suspected of complicity in the genocide.

The Bosnian Serbs also seized hostages to protect themselves against reprisals. In order to stop NATO from launching air strikes when his forces overran the designated UN safe zone at Srebrenica, General Mladic defiantly asserted control over 450 Dutch soldiers. It is also widely believed that the freedom Radovan Karadzic and others indicted by the ICTY have long enjoyed in the French zone in Bosnia has something to do with the seizure of French hostages in 1995 and with a secret deal—vigorously denied by Paris—for the release of two French pilots captured that year by Bosnian Serb forces. (Karadzic is believed by some to have joined Mladic in Serbia now that Milosevic, with whom he fell out, has been replaced by Kostunica, who has been more sympathetic to Karadzic.)

Whether or not there was such a deal, a 1998 NATO plan to arrest Karadzic was reportedly foiled by a French officer who tipped him off.5 Though US officials have criticized the French, the failure of American troops to match the British record of arrests in Bosnia apparently reflects concerns in the Pentagon about reprisals by the Serbs. As in Constantinople in the early 1920s, those subject to war crimes trials sometimes find ways to scare off the foreign troops needed to bring them to justice.

Crimes Against Humanity by Geoffrey Robertson, a prominent British barrister who has defended civil liberties in many countries, takes a somewhat different view of some of the same questions. He too examines tribunals, truth commissions, and other methods used to establish accountability, and he also takes up the use of armed force, most recently in Kosovo. Though Robertson is a strong proponent of accountability for crimes against humanity, he subjects all the efforts devised to serve this purpose to the critical scrutiny of an opinionated, knowledgeable, and experienced trial lawyer used to pointing up flaws in the case at hand. He points out, for example, that the organization of the ICTY creates the

very real impression that judges and prosecutors are on the same side: they are housed under the same roof and “serviced” by the same administration and public relations departments, equally committed to the “success” of the exercise. This was a problem at Nuremberg, where judges and prosecutors fraternized to the exclusion of the German defense lawyers; regrettably this has been allowed to repeat itself to some extent at The Hague.

Robertson’s commitment to accountability leads him to endorse military intervention in Kosovo, arguing that it was legal because the UN Charter does not outlaw “force of a proportionate kind…to prevent a humanitarian catastrophe.” Yet he objects to some of the ways NATO conducted the conflict. American officials, for example, justified the bombing of the building used by Radio Television Serbia, in which sixteen technicians were killed, because its broadcasts supported the war effort. Robertson writes that “the US argument is clearly wrong: the station was not inciting war crimes or genocide, like Rwanda’s Radio Libre des Milles Collines.” This is a point worth elaborating. Bombing a factory that produces equipment used for military purposes is legitimate in an armed conflict. But the fact that RTS supported the war effort through blatantly distorted reporting was not a sufficient basis for likening it to such a factory.

If political bias and propaganda legitimize attacks, other institutions that influence public opinion, such as churches or universities, could also be targets. On the other hand, when a broadcasting station becomes an active agent of criminality, as happened in Rwanda, it can justifiably become a target. Even when attacking a legitimate target, however, armed forces have a duty to try to minimize civilian casualties. It was one thing for NATO to bomb RTS’s separate transmitters in order to knock the station off the air and quite another to bomb the RTS building itself. Speaking at the World Economic Forum at Davos on January 26, Carla Del Ponte said that NATO had warned the Serbs in advance that the RTS building would be bombed. Top officials were not in the building when it was hit, but it seems the warning was not passed on to the technicians. That NATO gave a warning is important in considering whether it met its responsibility to try to minimize civilian casualties.

The legality of NATO’s intervention in Kosovo and the methods used are also considered by the Independent International Commission on Kosovo, a body established with the support of the government of Sweden and co-chaired by Richard Goldstone and Carl Tham, the secretary general of the Olaf Palme International Center in Stockholm. In its Kosovo report, the commission argues that NATO’s military intervention “was illegal but legitimate.” The report accepts that the use of force is prohibited by the UN Charter except in cases where states exercise their right to self-defense in response to an armed attack across international frontiers or when authorized by the United Nations Security Council to uphold international peace and security. In contending that the Kosovo intervention was nonetheless legitimate, the commission cites the human rights violations in Kosovo, the failure and futility of other methods of stopping those violations, and the political impasse in the UN Security Council created by Russia and China.

Whether a matter so serious as military intervention can be both illegal and legitimate takes up a large part of the Kosovo report. Geoffrey Robertson’s argument that intervention to prevent a human catastrophe is not outlawed by the UN Charter, particularly in view of the political reality of the Security Council, seems to me more persuasive. Robertson could have strengthened his argument by citing the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Article I provides:

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. [emphasis added]

In view of the previous record of Milosevic and his allies in Bosnia, as well as the forced displacement of hundreds of thousands in Kosovo before NATO intervened, the Serb expulsion of the unarmed international observers assigned to Kosovo after the October 1998 Holbrooke–Milosevic agreement, and the increasing number of killings by Serbs of ethnic Albanians in early 1999, it was reasonable for the members of NATO to intervene to prevent genocide.

The Genocide Convention, which was drawn up by the United Nations, provides that any contracting party may call on the world body to take action to prevent genocide. It does not say, however, that this is the only way that such an effort may be undertaken or that there is no recourse if the UN fails to act. The scale of killings in Kosovo did not reach the point where it could be called genocide, but it did approach or reach that point in Bosnia; and what happened there inspired legitimate fear of a repetition. By definition, preventing a crime means acting before its commission can be completed.

Such an argument, of course, may be irresponsibly used to justify destruction. Hitler justified his invasion of Czechoslovakia by specious claims about atrocities against the Sudeten Germans. Yet the Genocide Convention’s potential for abuse cannot be the basis for failing to protect those genuinely threatened with extermination. It is not clear that the restrictions in the UN Charter on the use of force occupy a higher place in international law than the requirements of the Genocide Convention. Also, the Council’s highly selective record of performance must be taken into account in assessing claims that it has exclusive authority over military intervention. The Genocide Convention could be said to enact into practical form the exception for acting according to natural law that Robertson finds implied by the UN Charter.

The independent commission and Robertson see eye to eye on the way NATO carried out its intervention. Both are critical of such practices as the use of cluster bombs and some of the targets selected, such as the RTS building in Belgrade. The commission also raises the troubling issue of the use of depleted uranium in NATO bombs. At the same time, its report recognizes that NATO made substantial efforts to avoid civilian casualties and finds no basis for bringing charges against NATO officials for criminal violations of the laws of war. In addition, Robertson and the independent commission agree that, in view of the record in Kosovo, there is a need for what the commission calls “a higher threshold of protective standards” for any future military campaign.

Richard Goldstone’s For Humanity is a first-person account, originally delivered as a series of lectures at Yale, of the remarkable career of a successful commercial litigator in South Africa who went on to become a judge of the country’s post-apartheid Constitutional Court and a leader in the worldwide effort to hold accountable people who commit crimes against humanity. Goldstone describes his service on South Africa’s highest court during the apartheid era, when along with a handful of other judges—such as the late John Didcott, who was also appointed to the Constitutional Court by President Nelson Mandela—he found ways to reconcile his fundamental opposition to apartheid with his duty to uphold the laws of the land in a system in which Parliament was supreme. Regrettably, he devotes fewer than ten pages to this phase of his career which must have constantly confronted him with difficult choices.

In 1991, the year after the release of Nelson Mandela from prison, Goldstone’s record as a judge made him the unanimous choice of all the groups that took part in a National Peace Accord of political, church, and civic groups to head a Standing Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation. That body, which became known as the Goldstone Commission, had a crucial part in making possible the largely peaceful transition to majority rule in 1994 and the eventual election of Mandela as president. The commission’s investigations helped to uncover the role of the police in fomenting and organizing much of the so-called “black on black” violence between the Inkatha Freedom Party and the African National Congress that cost as many as 20,000 lives. It also prepared the way for the subsequent investigations by the Truth and Reconciliation Commission.

When Goldstone was appointed the ICTY’s chief prosecutor at The Hague, the reputation he had earned in South Africa immediately helped make the tribunal more credible. When he arrived, he had to deal with the seemingly impossible assignment of indicting criminals and conducting trials without having any apparent means of getting custody of the defendants he would indict. Goldstone understood that somehow he had to create the impression that the Hague tribunal was succeeding; this was essential if he was to win the cooperation from governments that would make it possible for it to succeed. Drawing on the political skills he acquired in South Africa, he combined meticulous collections of facts from hard-to-find witnesses with persuasive arguments to the Western governments that the tribunal would act fairly and effectively. His achievement is all the more remarkable for having carried out this assignment in a little more than two years before fulfilling his promise to President Mandela to return to South Africa and serve again on the Constitutional Court. The period during which Tony Blair and Robin Cook deployed British troops to make arrests on behalf of the ICTY in Bosnia did not begin until after Goldstone left. It seems doubtful that those arrests would ever have taken place were it not for Goldstone’s work in making it seem worthwhile to collaborate with the tribunal.

Kostunica and Djindjic are still enjoying international support for having ousted Milosevic. While it lasts, the pressure on them to send him to The Hague is weak, though it may grow following Kostunica’s rebuff of Carla Del Ponte. But it is worth looking back on some of the recent results of the continuing international pressures to prosecute crimes against humanity. They include President Clinton’s signing on New Year’s Eve of the treaty to establish the permanent International Criminal Court; the formation of a tribunal in Cambodia to try former Khmer Rouge leaders; and the decision by Biljana Plavsic, the former Bosnian Serb president, to turn herself in for trial at The Hague. It seems doubtful that the main architect of the suffering in ex-Yugoslavia of the past decade will avoid the Hague tribunal indefinitely. Probably few of those who participated in setting up the tribunal in 1993 imagined it would still be in existence eight years later. But it is going strong and it seems unlikely that those who have supported it will consider that their mission has been fulfilled until Milosevic is sitting in the dock and given the fair trial that is his due.

  1. 5

    R. Jeffrey Smith, “Secret Meetings Foiled Karadzic Capture Plan,” The Washington Post, April 23, 1998.

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