In late March, as NATO bombs rained across Kosovo, Justice Louise Arbour of the Hague-based International Crim inal Tribunal for the former Yugoslavia (ICTY) faxed a letter to Slobodan Milosevic and 12 other senior Yugoslav officials. "Sir," the letter read. "It is my intention to investigate all serious violations of international humanitarian law that merit prosecution in the international forum, particularly those involving attacks on the civilian population." Arbour encouraged each man to do everything in his power to "prevent the commission of further crimes" and to "punish any of your subordinates who commit serious violations of international humanitarian law in Kosovo.
Three days later, Serbian troops completed the "ethnic cleansing" of Pristina, the capital of Kosovo; forced another 13,000 Kosovars across the border into Albania; and ventured into Macedonia to take three American servicemen hostage. During the next week, Serbian military and police forces intensified their campaign to empty Kosovo of non-Serbs, sending hundreds of thousands of ethnic Albanian women and children over the border while, according to many press reports, pulling aside fighting-age men to be quietly executed.
It would be an understatement to say that Arbour's letter failed to sway the Serbian leadership. Rather, the tribunal's veiled threat was irrelevant-to the Serbian leadership, to NATO military planning, and to the foreign policy considerations of the Allied nations generally. But beyond illustrating the limits-and, perhaps, fai lure-of the existing regime of multilateral treaties and international tribunals designed to prevent and punish mass violence, the tribunal's lamentable impotence raises another disturbing question: not just whether such international tribunals can punish perpetrators of gross human rights abuses, but whether they even should.
Punishing Genocide?
Genocide and its siblings are, by nature, massive crimes. For the past 50 years, the majority of those lawyers, activists, survivors, politicians, and other public figures collectively termed "human rights practitioners" have maintained that such crimes demand justice on a correspondingly massive scale. Beginning with Nurem berg's designation of "crimes against humanity," human rights practitioners have labored-from the Universal Declaration of Human Rights and the Con vention on the Prevention and Punishment of Genocide in 1948 and the Geneva Conventions, to UN-sponsored tribunals for Rwanda and Bosnia and the International Criminal Court drafted this July in Rome-to expand our moral and legal understanding of criminality. Only by extending the metaphor of criminal justice beyond borders, goes the dominant strain of thinking in the human rights community, can we truly make human rights universal; only by punishing perpetrators, goes the corollary, can a nation emerging from a period of genocide or mass violence hope to reestablish the rule of law and prevent future horrors.
Aryeh Neier's War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice falls squarely within this tradition. Neier, a distinguished human rights activist and a founder and former executive director of Human Rights Watch, has labored long and hard both for the protection of human rights and, more broadly, against the world's frequent indifference to them. Like many of his colleagues around the world, Neier believes first and foremost in the principle of accountability: that those responsible for human rights abuses should be brought to justice, whatever the political costs or risks. It is his view that all the human rights treaties and tribunals created since World War II represent "a half-century struggle for accountability-imperfect, passionate, yet rooted in law and universal principles." Though Neier reserves criticism for the tribunals in Rwanda and Yugoslavia, he nonetheless considers them to be "the most dramatic innovations in international law to protect human rights in half a century." To be sure, Neier's book is also a nuanced and comprehensive discussion of issues pertaining to the exposure and prosecution of gross human rights abuses. But his overriding theme, stated early on, is that justice is best served through "the disclosure and acknowledgment of abuses, the purging of those responsible from public office, and the prosecution and punishment of those who commit crimes against humanity."
Who can argue against justice? Those who demand accountability have the advantage of being morally unassailable. But by all accounts, none of the three pre-1991 multilateral conventions dealing with torture, genocide, or human rights did much to discourage either the Bosnian Serb or Croatian ethnic cleansing campaigns during the ensuing Balkan war; similarly, the existence of the ICTY, which in recent years has had some notable success in bringing Bosnian Serb foot soldiers and some unit-level officers into custody, does not appear to have affected the course of the Serbian campaign of ethnic cleansing in Kosovo-except, perhaps, to encourage Serbian soldiers to execute Kosovars more surreptitiously. If anything, the ICTY's indictment of such Serbian leaders as Zeljko "Arkan" Razn jat ovic and Radovan Kara dzic has made those figures even more popular among ordinary Serbs.
The existence of the Yugoslav tribunal, in short, has been little hindrance to the Serbian campaign of ethnic cleansing in Kosovo. Why? It is this question that human rights practitioners like Neier have failed to answer honestly. "On the one hand, the nations of the world, all but universally, have committed themselves to a series of detailed coven ants . . . that they will respect human rights," he writes in the final chapter of War Crimes. "On the other hand, far more extensive and terrible violations of human rights have occurred than during any other period except World War II." As Neier explains it, this disjuncture between principle and practice stems from the principles not being clear and forceful enough; his proposed solution is the establishment of a permanent international criminal court-in essence, even more treaties and conventions-plus a blueprint for how future prosecutors might wade through thorny legal questions of guilt and due process.
Yet Neier himself cites example after example of Western nations ducking their obligations to intervene in clear cases of genocide and human rights abuse. As Neier knows better than anyone, gross human rights abuses frequently go unpunished not because of vague treaty language, but because human rights enforcement is rarely the first priority of the potential intervener; the problem lies with states' commitment to the principles of human rights enforcement, not with the principles themselves. (Indeed, the existing multilateral conventions on torture, genocide, and human rights provide ample legal basis for a concerned state-or an activist judge, as in the Augusto Pinochet case-to intervene, or to hold perpetrators accountable.) Moreover, the only truly successful efforts this century to impose the rule of international law on transgressor nations-in postwar Japan and Germany-each required a lengthy occupation by Allied troops and an extensive process of victor-imposed institutional reform. In both cases, the kind of international criminal justice Neier envisions included an element not found in the two existing UN tribunals or the nascent International Criminal Court (ICC): an international analogue for the domestic monopoly on legitimate force enjoyed by an individual state. Bringing the Nazi leadership to trial required a truly massive investment of time, men, matériel, and political will on the part of the Allied nations-one that has not been matched since.
In an anarchic international system, states tend to enforce human rights not only when, but also to the degree that, it suits them. Both problems have been illustrated repeatedly since 1991, when Cold War strategic imperatives ceased to obstruct intervention by concerned nations. The same year that saw the breakup of the Soviet Union witnessed the onset of ethnic cleansing in Bosnia, the first clear test of "never again" Western internationalism-as it turned out, a test NATO and the United Nations failed miserably. In 1994, the world stood by as genocide unfolded again, this time in Rwanda, with the foreknowledge of Belgium, France, the United States, and the UN. The situation in Kosovo is only slightly better. A dedicated program of air bombardment is certainly better than nothing, but what if, as most observers outside the NATO establishment assert and as all previous experience indicates, halting the Serbian program of ethnic cleansing requires the use of ground troops? In the cases of Bosnia and Rwanda, those countries in the best position to prevent genocide were unable to muster the political will necessary to do so in any significant way; in Kosovo, Western leaders ruled out the use of NATO ground troops almost as soon as the fighting began. As of this writing in early May, the prospect of a wholesale Allied occupation appears distant.
It is a lesson that the Serb ian leadership has learned well. And although Neier never says so outright, it's clear that the main reason he and most other human rights practitioners want a permanent, independent international court is that it would take the decision to punish genocide and mass violence out of the hands of certain irresolute governments with permanent vetoes on the Security Council. Pretending otherwise is a necessary subterfuge, of course, and Neier's desire to establish a truly independent and impartial international tribunal is a thoroughly noble and understandable one. But it is precisely those irresolute governments-the ICC established in Rome was, as Neier had feared, crippled by U.S. opposition-who will prevent such a court from ever coming into existence.
The Inadequacy of Retribution
Genocide is so massive a crime that, as Hannah Arendt once wrote of the Holocaust, it "oversteps and shatters any and all legal systems." Our natural impulse has been to create still more massive forms of retributional justice, some legal machinery that would compel states to properly enforce the existing human rights regime. But a deeper problem may be that tribunals-and the paradigm of retributional justice they represent-are simply an inadequate response to mass violence and its aftermath. The Yugoslavian tribunal failed not simply because such tribunals are bound to fail, but because it did nothing to address the root causes of the genocide.
Ethnic cleansing in the Balkans is not a consequence of lawlessness. Rather, the deep divide between Serbs and Kosovars has its roots in a deliberate, decade-long effort by Serbian leaders: First, to mobilize what was then a largely dormant ethnic passion as a vehicle for political hegemony within the former Yugoslavia; and second, to provide a target for Serbian nationalism by demonizing Bosnian Muslims and, later, Albanian Kosovars. It is often pointed out that Milosevic, once a Com munist Party apparatchik, launched his career as a demagogue by stirring Kosovo Serb fears of an Albanian "demographic genocide"-a reference to the high birthrate of ethnic Albanians that would, according to state propaganda, eventually force ethnic Serbs out of the cradle of Serbian civilization. Like all such ethnic entrepreneurs, Milosevic incorporated shards of ancient and recent history into a potent nationalist vision, a semi-mythological account of the Serbian nation that shrewdly played upon what many observers have described as a national sense of victimhood.
Although Neier's book includes a substantial discussion of Balkan history, he pays too little attention to the process of ethnic mobilization in post-Tito Serbia. For instance, in recounting the ancient Otto man defeat of the Serbs in 1389, Neier takes at face value the claim that it was a "defining moment in Serb history." A few lines later, he elides the question by averring, ". . . whatever the actual history, the most intense nationalist feelings in Serbia derive from the sense of being wounded as a people." Likewise, earlier in the book, Neier writes that "a truth process for the Balkans"-such as a truth commission like those in Guatemala, Chile, and South Africa-"would be irrelevant, because there would be little to disclose. Indeed, there was no significant debate over truth." Certainly, as Neier points out, there was little question as to the extent of Serbian and Croatian atrocities. But the "truth" is far more than the details of who was killed or raped where and by whom, and in the cases of both Bosnia and Rwanda, the "history" that Neier takes for granted was constructed for purely political purposes through fascist methodologies that are by now familiar. This is not to say that Milosevic's nationalist mythology was artificial; though distorted, most of the events were real enough. But the process of ethnic mobilization-and its genocidal consequences in both Bosnia and Rwanda-points toward a problem more fundamental than mere lawlessness.
A Perfect Genocide
"In Bukavu, Zaire, in the giant market of a refugee camp that was home to many Rwan dan Hutu militiamen, I had watched a man butchering a cow with a machete," writes Philip Gourevitch in We Wish to Inform You That Tom orrow We Will Be Killed With Our Families. "He was quite expert at his work, taking big precise strokes that made a sharp hacking sound. The rallying cry to the killers during the genocide was 'Do your work!' And I saw that it was work, this butchery; hard work. It took many hacks-two, three, four, five hard hacks-to chop through the cow's leg. How many hacks to dismember a person?"
On the morning of April 7, 1994, several hundred thousand Rwandan Hutus picked up machetes and went to work. The genocide they launched that day did not expose the world to a new evil, but it certainly altered our sense of what was possible; unlike the two others which preceded it this century, the Rwandan genocide resists all attempts at circumscription. It was not conducted by military squads or secret police. Nor was the violence localized in concentration camps, ethnic ghettos, or remote prov inces; no effort was made to buffer "ordinary" Hutus from the slaughter. And though there was an ideology of murder, known as "Hutu Power," it had no single, megalomaniacal champion-no one to whom blame could, even symbolically, be attached. Rather, the Rwandan genocide was carried out principally by ordinary Rwandans-Hutus, mostly men, who murdered their Tutsi neighbors, Tutsi colleagues, Tutsi friends, and even their Tutsi wives. By some estimates, nearly the entire adult male Hutu population took part in the killings, which occurred wherever Hutus and Tutsis lived, worked, played, and prayed together-that is, everywhere. By its sheer societal, moral, and geographic totality, the Rwandan genocide defies comprehension. It was genocide so perfect as to be nearly abstract.
Indeed, Gourevitch's book brings back into focus the simple fact that the vast majority of Tutsis were killed by people they knew-people wielding not guns or gas but two-foot-long knives, people who were able to ignore the screams of their neighbors, spouses, and friends for the minute or so it might have taken to hack that person to death. Yet to the extent that Americans think of Rwanda at all, they-and their leaders, and most of the Western media-have been content to dismiss the events of April 1994 as a spontaneous outpouring of hysterical violence. Gourevitch, building on the work of Gérard Prunier, Catherine Newbury, and many others, shows that the genocide was instead "the product of order, authoritarianism, decades of modern political theorizing and indoctrination, and one of the most meticulously administered states in history." This was a process not unlike that in post-Tito Serbia-except that, in Rwanda, the process of ethnic mobilization was flawless. By the eve of the Rwandan genocide, the Hutu elite had constructed a society so perfectly prepared for genocide that-if not for the timely intervention of Paul Kagame's Rwandan Patriotic Front, a Ugandan-backed force composed mostly of Tutsi expatriates-the Hutus would very likely have succeeded in murdering every single Tutsi in Rwanda.
That preparation is more exhaustively described in a recent report by none other than Human Rights Watch. Leave None to Tell the Story confirms much of what Gourevitch reported, most notably the astoundingly public, state-led campaign that prepared Rwanda for genocide. For months, the Hutu authorities imported and distributed machetes to "civilian self-defense forces," inundated the airwaves with racist and inflammatory propaganda, replaced reluctant mayors and prefects with more pliable individuals, and drew up lists of Tutsis-all in clear view of the various foreign consulates, United Nations personnel, and nongovernmental organization offices based in Kigali and around the Rwandan countryside. The genocide itself was more or less announced beforehand; hence the note, written by a group of Tutsis to the Hutu pastor who later organized their extermination, from which Gourevitch draws his title. If, as Tina Rosenberg has written, the totalitarian communist states of Eastern Europe gave us "criminal regimes" and the right-wing dictatorships in Latin America gave us "regimes of criminals," then Rwanda has provided the world with a new category: the society of criminals.
Redefining Justice
The proper question is whether one can put such a society on trial. Like Neier's War Crimes, Martha Minow's Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence explores the various legal and moral quandaries that surround any attempt to punish mass violence. Unlike Neier, Minow refuses to take refuge in the easily defended position that true justice demands punishment; "litigation," as she puts it, "is not an ideal form of social action." In taking a closer look at the social and historical roots of genocide and mass violence, Minow recognizes that justice is a process, not an end. Between Vengeance and Forgive ness is complicated, ambiguous, and deeply unsatisfying-exactly as it ought to be.
The central message of Minow's book is that there are no easy solutions. This will undoubtedly strike many readers as too pat; still, it is a fairly courageous-not to say difficult-position to take, and Minow's exploration of guilt, punishment, and reconciliation provides a more critical examination of tribunals than that offered by Neier. One relevant paradox is that tribunals are often unable to gain custody of those who lead or direct mass violence; reduced to putting a handful of foot soldiers on trial, such proceedings actually encourage cynicism by making the choice of defendants appear arbitrary. (The Yugoslav tribunal, for instance, has a few dozen Serbian foot soldiers and low-ranking officers in custody, but virtually no Serbian leaders.) And yet punishing only the leaders of genocide violates the root principle of Western criminal law: individual responsibility, individual guilt, and individual punishment. Neier's treatment of this dilemma appears to resolve it without actually doing so; on the one hand, he argues, it is important that guilt be individualized so as to satisfy the demand for concrete, retributional justice; on the other hand, he writes elsewhere, "relatively few trials of high-ranking people may still be an appropriate response. Those criminals not prosecuted for lack of resources will know that their leaders were judged and that, by definition, their own conduct has been condemned." Indeed, proponents of international tribunals typically assume that such bodies establish a reigning moral order before which perpetrators of genocide are forced to atone. But what if, as in Bosnia and Rwanda, the perpetrators permeate an entire society, and that society roundly rejects the legitimacy of the judgment?
A perfect genocide-in which the rule of law has not been violated, because murder was the law-shatters the logic of criminal justice by redefining deviance. As Gourevitch puts it, "If everybody is implicated, then implication is meaningless. Implication in what? A Hutu who thought there was anything to be implicated in would have to be an accomplice of the enemy." The logic of authoritarian ethnic mobilization defines its own morality, much as the ideal totalitarian state convinces its subjects that war is peace, ignorance is strength, and freedom is slavery. Minow herself uses Arendt's thoughts on totalitarianism to illuminate genocide: "The central premise of individual responsibility portrays defendants as separate people capable of autonomous choice," Minow writes, "when the phenomena of mass atrocities render that assumption at best problematic." Her main example is familiar: the East German border guard convicted of shooting Chris Gueffroy, who attempted to cross the Berlin Wall just nine months before it fell in 1989. But the experience of Rwanda-and the perfect state-led indoctrination process Gourevitch describes-gets closer to the heart of the problem. In Rwanda and Bosnia, genocide was not industrial, but interpersonal, an "exercise in community-building." In the wake of such an event, true justice must include a similar component, some process of reconciliation and nation-building-a path between, as the title of Minow's book suggests, vengeance and forgiveness.
Where might such a path lead? Minow doesn't dismiss trials outright; rather, she cites truth commissions, reparations, conditional amnesties, and other methods by which nations can confront a legacy of violence. Truth commissions, in particular, are a relatively recent and promising innovation. Such commissions take a variety of forms, but all generate broad-ranging testimony about past atrocities in a public forum; under the best circumstances-with both perpetrators and survivors taking part-such proceedings can help fashion a communal "social memory" of the past and break through the propaganda and indoctrination that so often surround mass violence. Contrary to Neier's assertion that a truth process would have been irrelevant in Bosnia, a UN-sponsored truth commission-enacted after the 1995 cease-fire in Bosnia, when the democratic opposition in Serbia was more robust and before Kosovo rendered such an endeavor impossible-might have done much to reduce the legitimacy of Slobodan Milosevic's regime. Public recognition of genuine Serb grievances dating from the Ustashe era might have consoled Serbian self-pity. And just as the South African Truth and Reconciliation Commission has helped shatter the mythology that insulated ordinary whites from the violence and oppression upon which apartheid was built, so might some form of truth process in the Balkans have shattered the nationalist mythology upon which Milosevic and his ilk have built their power.
To be sure, Minow's alternatives have their own drawbacks, which she herself catalogs in great depth. Truth commissions can also be toothless and irrelevant; the concept of monetary reparations for genocide verges on the obscene; and in many Latin American countries, "amnesty" has simply meant amnesia. But they do countenance a necessary reconfiguration of the notion of justice to one that includes restitution and reconciliation as well as retribution. Nearly every country that has survived genocide or mass violence since World War II has been forced to fashion its own compromise between accountability and civil peace; we can no longer dismiss all such processes as craven expediency. Minow suggests that we look at the challenge of justice holistically, treating truth commissions, reparations, and even trials as a continuum of approaches. True reconciliation in the Balkans may not be possible, and peace may only arrive in the wake of NATO divisions. But the Yugoslav tribunal has served as little more than provocation-yet another thread that Milosevic can weave into his nationalist myth, lamenting yet another indignity visited upon the Serbian people by foreign imperialists. Ethnic cleansing in Kosovo may yet be halted by Western intervention, and perhaps even punished by the ICTY. But the cycle of vengeance concocted, implemented, and nursed by Serbian leaders will likely continue-as it has in Rwanda, Latin America, and elsewhere.
In the end, Rwanda did make use of trials. The Arusha, Tanzania–based International Criminal Tribunal for Rwanda apprehended several high-ranking Hutu leaders, and in September, ex–Prime Minister Jean Kam banda became the first person ever to be convicted of the crime of genocide. His conviction, for which he received the maximum sentence of life imprisonment, was considered a great success. In Rwanda itself, Paul Kagame's successor regime announced a moratorium in 1996 on the arrest of Hutus, so as to encourage Hutu refugees to return. A year later, Rwanda's parliament adopted a new law: only those who had led the genocide, or been particularly enthusiastic killers or rapists, were subject to execution. About 125,000 suspected génocidaires were subsequently incarcerated to determine who were among the truly guilty, and in 1998, while exiled Hutu militiamen continued to raid Rwandan villages, the new government finally executed 22 Hutus found guilty of genocide-to the "cheers and jeers" of a crowd that the New York Times' James C. McKinley, Jr. described as "gripped with blood-lust."
Most of the remaining prisoners, of course, face only reduced sentences-and in some cases freedom-if they confess or testify against the leaders of the genocide. Most have refused to come forward. "It's deliberate sabotage," one official told Gourevitch. "Their leaders have them brainwashed. They still wish to maintain that there was no genocide in this country, when the fact of the matter is the genocide is still going on."
