It is a rare treat for an author to be given the opportunity to continue the discussion about his or her book in the wake of reviews. I am grateful to be able to do so, especially when the reviewers have made penetrating observations about my book. It is in that spirit, and hopefully to clarify arguments that may be unclear in After Genocide: Bringing the Devil to Justice, that I want to make a few observations that follow from the reviews submitted by Sarah Nouwen, Sadia al Imam, and Bridget Conley-Zilkic.
The “Extreme Position”
Ms. Nouwen is correct that, to a degree, I have taken to heart the international community’s claims about international justice. In so doing, she is right that the book may appear to take on board what I will call an “extreme position” (my words, not Ms. Nouwen’s) that both “accuses…[international justice] of wrongs that it cannot be blamed for” and insists upon measuring the success of international justice against standards that may appear “at times unreasonably high.”
Though I do not fully agree with Ms. Nouwen’s overall characterization of my argument about the standards by which success in international justice ought to be measured (see below), it is important to recognize how broadly accepted is this “extreme” position — that international justice is a panacea for the social and political ills in post-conflict societies — and not just by those who are called upon to make the international justice “sales pitch of unrealistic promises.” A key constituency that often holds this view are those on the ground, in the regions impacted by violence and which have been targeted by international judicial institutions. Though in many cases there has been limited international support on the ground for judicial intervention, among those who have supported it, the extreme position has been one of the common arguments made. Supporters of international justice from the outside have done little to disabuse these domestic proponents of their overly-lofty expectations. Thus, in as much as international justice has failed to meet its own self-imposed standards it not only reveals the puffery that necessarily goes into some aspects of promoting a policy, but also often dashes the hopes of those in whose name it has operated.
The extreme position also finds a ready home in domestic policy making and in debates about the wisdom of international justice. As I note in the book, this was evident when the debate about United States participation in the International Criminal Court spilled into the public as the Rome negotiations came to a close in the summer of 1998. While opponents of the ICC preached “hell and brimstone” if the U.S. would deign to sign the treaty, proponents were similarly extreme, “deifying the court” and arguing that the court would, seemingly on its own, “deter future genocide, war crimes, and crimes against humanity.” (p. 40) To a degree, it is this “extreme” position that is often used to justify domestic political support of international justice from donor states, and thus again it is the metric that is implicitly set.
Third, while the “extreme” position that international justice can bring peace, justice, and development is manifest in the “selling” of international justice, it also appears to play an unstated role in the “management” of international justice. In other words, the international community has operated international judicial institutions with the goal of the institutions providing much more than justice. This has been clear in the Balkan case where the ICTY has been called on to play not just a judicial role, but also a role in which it has had the power to provide or deny other goods as well. For instance, for the Balkan states cooperation with the ICTY (as certified by the ICTY) has been the single most important prerequisite before the EU or NATO would engage with them in potential partnership and membership discussions; such cooperation has also been a commonly maintained implicit criteria for donors (bilateral and multilateral) to lend money and provide expertise for development projects in the region. Everything was funneled through the ICTY and without state cooperation few other “goods” would be made available; and, presumably, with cooperation, such goods would flow.
Despite the seeming currency of the “extreme” argument, what I tried to convey in After Genocide was that the correct query to ask of international judicial institutions was not whether they cause democracy, peace or any other good, but rather whether they either impede or are orthogonal to those ends. Ms. Nouwen is right that international judicial institutions cannot necessarily be blamed for the lack of peace and security in the Balkans (or elsewhere). Yet, it would be equally difficult, I contend, to demonstrate that they necessarily helped towards those ends either. In the former-Yugoslavia and Rwanda, for example, the simple fact that international attention, funding and expertise was so focused on the international plane led to fundamentally neglected domestic justice systems, that remained so for decades after the ICTY and ICTR was formed. Though Rwanda managed to mount large numbers of domestic prosecutions, the ICTY crowded out domestic justice and the dilapidated domestic justice systems in the former-Yugoslavia atrophied even further. Rwanda, of course, would have been able to do so much more had the international community’s focus been on Kigali rather than Arusha (the home of the ICTR).
This crowding out process can be seen even after domestic justice systems regained their footing, with the international system limiting their ability to be consolidated through the prosecution of difficult cases. For instance, when Slobodan Milosevic was extradited to The Hague, he was sent from a Belgrade prison where he had been incarcerated after being arrested, charged and prepared for trial by Serbian authorities. There was a clamor among many for him to be tried, at least initially, in Belgrade. Instead, in order to burnish Serbia’s pan-European credentials and no doubt to unlock a massive loan from the World Bank, he was shipped to the Netherlands. The circumstances of Radovan Karadzic’s arrest in July 2008 provide an even clearer “demonstrate[ion] how ready the Serbian state was” to bring such an individual to justice at home. He was arrested by the Serbian secret policy, arraigned by the domestic, Serbian war crimes prosecutor, and questioned before a dedicated Serbian War Crimes Court in Belgrade, before being extradited to The Hague. At the time of his arrest, Serbia had already prosecuted several war criminals, and there was only limited protest in the streets upon hearing of his capture. There would likely have been limited disturbances if his trial had progressed in Serbia. However, rather than allow the Serbian authorities to use their new resources and demonstrate how much they had turned the page on the atrocities of the 1990s, the international community insisted upon Karadzic’s extradition and trial before the ICTY. This, again, denied the Serbs the opportunity to demonstrate their new system and to more truly consolidate the rule of law upon which they had been working for years.
Moreover, in the course of demanding Karadzic’s extradition, and linked directly to the multivariate importance ascribed the ICTY – as the key to Serbia’s eventual entry into the EU, for example – the international community unwittingly changed the focus in Serbia from justice and recognition of Karadzic’s wrongs to the utility of his extradition for the non-justice purposes of European integration. As I argued in After Genocide, at the time of Karadzic’s arrest and extradition:
“…the only significant talk of “justice” came from outside Serbia, with official pronouncements from Belgrade focusing…on the benefits Serbia could extract from the move than on any indication that Karadzic’s arrest demonstrated a national willingness to face up to the terror of the 1990s.”(p.328)
It is true that a trial at home in Serbia, especially one held in response to pressure from the international community, may have also included a focus on the non-justice benefits Serbia would gain through the process. However, that it would be at home would have given Serbs a much greater opportunity to identify with the process and to use the trial as a tool to more fully address their role in the Balkan wars. It would be far from perfect, but the better of imperfect options.
Further, though this has yet to happen with Karadzic, for Milosevic there was another unfortunate side effect of his extradition that further delayed Serbia’s turn from the past. Before he was extradited, Milosevic’s political star and that of his broader nationalist agenda were on the wane with many of his supporters clearly fed up with where his leadership had led them. However, the moment he was moved to the ICTY he was elevated and even lionized by many in his former constituency, adding fuel to a fire of radicalism that had slowly been doused.
The second issue that I would like to address concerns cost. This was mentioned in all three reviews, and in some of the comments that have followed. Cost is a serious issue, and the amounts of money being spent on the international judicial “project” are significant. For the 2008-9 biennium alone, and taking into account solely the judicial institutions backed by the United Nations (i.e. not the ICC) international justice is a $825 million enterprise.
I often hear two arguments about the propriety of spending so much money for international justice. First some posit that the amount is actually fairly modest given both what needs to be procured and what is provided. Indeed, the infrastructure of international justice is often impressive and the cost of the first-rate personnel that work in these institutions, along with their overhead, is commensurate with the quality. Moreover, the cost of justice is minimal, especially when one weighs it against the cost of “injustice.”
The second response I hear is a comparison between the international judicial system and domestic justice systems, with the American system playing the part of comparator. Some note that the average cost of a capital case in the United States — from arrest through trial, appeals and execution — is of the same magnitude as the cost of an international trial which is often similar in scale, complexity, and stakes.
Both of these arguments have merit. After Genocide may not have been clear enough on this point, but what I tried to suggest is not that the significant investment in justice was per se wrong, but rather that the money could have been used differently. I find it heartening that the international community has seen fit to spend so much on justice in the wake of atrocities. I am disheartened when I think about the good that could be done if the money, and the facilities and expertise that it has purchased, could be directed at the countries that need it, to help revitalize legal education, provide judicial infrastructure and ensure security and sustainability in domestic systems that are in dire need. I acknowledge Ms. Conley-Zilkic’s point, however, that it is not as if these mass sums are “simply available and awaiting distribution for any relevant cause.” Yet, comparing the state of many post-conflict justice systems with the international courts built to address those conflicts, once cannot but get a sense of what Ms. Conley-Zilkic describes as the “basic economic inequality at play when the international and national collide.”
The Domestic Solution
The question of “what if” efforts had been directed to the domestic rather than the international relates to the third issue I would to address. Ms. Nouwen is perceptive to note that while After Genocide measures international justice against a very high standard for success, it may appear to give domestic judicial systems addressing post-conflict justice a pass, or at least a far more flexible measure for success. Ms. Conley-Zilkic notes a similar point, suggesting that the book could have benefited from a more pointed analysis of the successes and failures of domestic justice.
Both reviewers make good points and they are both correct. Though I am not sure I agree with Ms. Conley-Zilkic’s suggestion that After Genocide “romanticizes” domestic solutions (after all, my strongest endorsement is that they are simply the better of bad options), it is true that the book could have both delved deeper into the benefits and detriments of domestic solutions (such as the troubles with lustration that Ms. Nouwen correctly raised) and have made the reasons for any appearance in different standards for measuring success in international and domestic systems clearer. Regarding the latter oversight, as I see them, there are two primary reasons for the standards between the domestic and international systems to differ. First, it is not necessarily that any particular domestic standard is lower than international standards, but rather that domestic standards are variable. International justice is unified in what it counts as “justice;” domestic justice systems, which take into account local needs and understandings of justice diverge from one another and from international standards when it comes to an assessment of whether a given system has been successful. This assessment means that what I view as “justice” may not be what those on the ground, the victims and survivors, feel is justice. At times this may seem like a lower standard; in reality, I would argue that it is just a different standard.
And second, I acknowledge that in some cases what appears to be a lower standard may actually be a lower standard. One of the justifications for this is at least partly due to the fact that domestic systems rarely make the same claims that the international system does. They rarely set the same height of expectations and thus are less politically vulnerable when they fail to fully meet them. Domestic justice often sets more realistic standards for the good it can accomplish; consequently I thought it right and fair to at least initially judge these systems by their self-set metrics for success.
The Utility of International Justice
The final point that I would like to address concerns the wider question of “what is international justice good for?” I recognize that After Genocide may appear to reject international justice out of hand; in so doing, Ms. Nouwen is again correct to posit that, for example, just because Nuremberg may have fallen short in making “never again” a reality, it “may have served other worthwhile aims.” The same could be said for any of the other iterations of international justice. In this I fear that my argument may have been incomplete. The reason that I chose “never again” as a primary measure of Nuremberg’s success is that that was the rationale that was so often invoked during Nuremberg and continues to be invoked today. However, this does not mean that Nuremberg (or the other courts) have done no good. For me and my family Nuremberg provided a degree of comfort that “something was done;” as I mention in After Genocide, “Nuremberg was the gold standard of how one deals with such crimes [and its]…legacy…in a very real, visceral way, alleviated some…discomfort.” (p. 22). I imagine that for many survivors and descendants of survivors, the “idea of Nuremberg” still provides this comfort, which is certainly a worthwhile outcome. The question (again) is what could have been the outcome had a different process been chosen? Perhaps domestic trials? Perhaps a truth commission? The same comfort may have been achieved, but at a lower cost and with a greater impact on the German people, and perhaps also on survivors and descendants of victims. Perhaps survivors and descendants would have achieved “actual comfort,” rather than a “sense of comfort?” One cannot know. Of course, Nuremberg is sui generis for many reasons (key among them the trials were held after the war was over, and in an occupied Germany) and, in my view, finding the “good” in international justice is a much harder task in situations of still raw conflict (as in Rwanda) or ongoing conflict (as in the Balkans and the ICC’s first four situations), when the international community has limited, if any, access to the ground.
The Way Forward
What does this history of international justice mean for Sudan and the other more recent targets of international justice? The clearest conclusion I believe is that international justice as it is currently deployed may not lead to the outcome that proponents of international justice desire. To take Sudan as arguably the key case, in the short term the various indictments issued against players in the Darfur crisis, most notably against President Bashir, have done little to alleviate the suffering of Darfuris. There has been limited, if any, deterrent effect. Moreover, so long as Bashir remains recalcitrant and has enough allies who support him in rebuffing the ICC (the Arab League, the African Union, and implicitly China which allows Sudan to be protected from harsher sanctions behind its Security Council veto), it is unlikely that he will appear in The Hague at any point soon. Moreover, the indictment seems to have functioned much as ICC indictments against the Lords Resistance Army in Uganda have functioned — to limit the indictees’ choices. Once indicted, indictees can either continue their behavior or face a lifetime of trial and likely prison in a foreign country. Unfortunately, both the LRA leaders and President Bashir appear to have made the unfortunate, though understandable, choice to continue their crimes.
This relates to the paradox of international justice that I discuss in After Genocide. So long as Sudan remains unwilling to assist the international community in its efforts towards justice, and so long as the international community remains unable to effect its will on Sudan, neither international nor domestic justice seems likely. However, the moment Sudan becomes willing to assist the international community (by, for example, extraditing President Bashir, much like Serbia’s moves with Milosevic and Karadzic) then one must ask why Sudan does not become the best place for any trial of Bashir’s actions to take place?
There will eventually be a reckoning in Sudan, but when it comes it will be up to Sudan to determine the best course. It might make sense to form a hybrid tribunal of sorts. Or perhaps dispensing with a primarily judicial solution would be more effective, moving towards a motley system that may include a few trials but concentrates primarily on a truth commission and other non-punitive processes. This would be similar to the South African model. (As an aside, though I agree with Ms. Nouwen’s argument that South African lawlessness belies its assertion of being a country under rule of law, I think it unfair to blame its crime rate on (or even link the crime rate to) its imperfect truth commission process — that seems to engage in a similar overreach of which she rightfully posits I am taking with the extreme position discussed above.)
One of the most troubling images in the days following President Bashir’s indictment was not of the President speaking about the ICC with contempt but rather of the thousands of young supporters who amassed for rallies in support of Bashir and in opposition not just to the ICC but also seemingly of taking responsibility for what has transpired in Darfur. The “best” method of justice for Sudan must take into account these young supporters — the future leaders of Sudan — and must endeavor to inculcate a sense of responsibility — and revulsion — for what has been done in their name. It is not evident that this good can be achieved via international judicial mechanisms.