Adam Smith Responds to Naomi Roht-Arriaza
Professor Roht-Arriaza makes several characteristically insightful comments about After Genocide. They have spurred me to continue the conversation.
The professor notes that international judicial institutions have learned from some of the failings of early tribunals and, for example, have worked hard to improve outreach in their later iterations. This is undoubtedly true and in After Genocide I applaud the Special Court for Sierra Leone’s impressive efforts in providing and promoting outreach. This is a far cry from the dearth of outreach in the earlier tribunals.
However, Professor Roht-Arriaza and I part company, to a degree, when she argues that one of the strengths of even these earlier tribunals (and continuing to today’s) comes from one of the key drawbacks I mention — that the tribunals are “far removed from the nuances of local politics and culture.” This, she posits, allows them to be “impartial.” I am not sure this is right — the very structure of a tribunal so removed can lead to perceived and actual partiality. One of the key reasons for this “effective” partiality comes precisely from the culture, politics, and history of a region. As a leading example of the impact of culture and history on the notion of fairness, I note that in “many instances of modern international justice, subject aggressors and defendants have come from ethnic groups and peoples who have been perpetually in flux, moving into and out of power, at one time serving as the genocidaire, an another time the victim.” (pg132) International tribunals, however, have not taken this flux into account, even though history is not only alive in many target states, but also often plays a palpable role in the crimes about which international tribunals are concerned. The result is both an appearance of partiality and a feeling of unfairness on the ground.
For example, the Rwanda tribunal has been jurisdictionally limited to prosecuting only those crimes committed during the year of the genocide, 1994. From an outside perspective this makes sense given the scale of crimes committed during this period. The problem comes from the fact that this limitation by definition biases the tribunal against the Hutus, while minimizing crimes of Tutsis. During the events of 1994 the Hutus were, by any measure, the primary aggressors. However, for decades, the Hutus and Tutsis have rotated roles in both Rwanda and Burundi, taking turns as killer and victim. The limited nature of the tribunal focuses its attention on Hutu crimes and leaves out crimes (even mass atrocities) committed by Tutsis at different points. The result: feelings on the part of Hutus that the ICTR is engaging in a fundamentally and structurally unfair, partial exercise in justice. The same is true in the Balkans where the tribunal’s temporal jurisdiction has forced it to focus largely on Serb crimes (who were the primary aggressors during the 1990s) but not on those crimes committed by Croats or Bosniaks against the Serbs in years past when they were the leading abusers. In this regard, it is not clear to me that the tribunals have really been “impartial” nor that such international bodies, so divorced from the realities of a conflictual society, can actually be, let alone be seen to be, impartial.
Second, Professor Roht-Arriaza was surprised that my book did not deal more fully with restorative justice/traditional justice/truth commissions, especially if one of the key issues I identify is that different people have different conceptions of justice. Surely we should be questioning courts, period, as a solution.
The professor is correct and I could have spent more time on this issue. I did not, however, completely neglect it. I discuss the possibility of pursuing alternative transitional justice mechanisms in Chapter 3, and ask “Are Courts the Only Answer?” (p. 74) I agree with the professor — the answer is clearly “no”– and bemoaning the growing reliance on courts in post-conflict environments I cite Abraham Maslow’s pithy remark that “if the only tool you have is a hammer you tend to see every problem as a nail.” I briefly discuss other options, ranging from amnesties to lustrations to truth commissions. Yet the professor is correct that the book consciously focuses on courts, but not because I think courts are the only answer. Rather, it does so because “most commentators assert that criminal prosecution is the best response to atrocities.” (p. 76) It is to challenge this supposition that I wrote After Genocide. (And, indeed, a further reason that I did not cover alternative measures more fully is because there is already some fantastic work, from Professor Roht-Arriaza, Priscilla Hayner, and others, on these tools.)
My book takes as a given two propositions held by the international community — first, the international community has decided that courts are “special” and should be a primary tool for responding to atrocities; and, second, the international community believes that such trials are better if held locally, but they can rarely be so held because of the difficulties inherent in post-conflict environments. I chose to only briefly address the first proposition (but I do acknowledge Professor Roht-Arriaza’s provocative discussion of the Commission on Impunity in Guatemala and that other hybrid, non-judicial arrangements also exist — however, I would posit that for the international community the ascendance of trials as “special,” occupying a privileged place in the pantheon of post-conflict “solutions,” is hard to deny.).
I focus the bulk of the book on the second proposition. I try to show that the proposition is really an assumption, and an often incorrect one at that. In post conflict environments domestic courts are not only possible, but “better” than international proceedings (recognizing that other, non-court options may be better still).
One of the professor’s most penetrating comments comes in her description of a paradox of domestic trials — she argues that sometimes the only way to jumpstart credible domestic trials is through the use of international judicial mechanisms. She cites the examples of the arrest of former Chilean leader Augusto Pinochet in London leading to a clamor to try him in Chile, as well as the American Court of Human Rights’ invalidation of an amnesty given to former Peruvian president Alberto Fujimori leading to his trial in Peru.
The paradox is certainly thought-provoking. I feel, however, that it is imprecise, or at least over-stated, in two ways. First, I do not believe the evidence demonstrates that international judicial mechanisms have ever been the “only” way to spur domestic trials. And second, even if international pressure has been needed, I do not think the evidence demonstrates that it is judicial pressure from abroad that is required, rather than any other form of pressure. And other forms of pressure may in fact be more effective.
A key limitation to judicial pressure is that it is by its nature a blunt, fundamentally binary instrument. To take one of Professor Roht-Arriaza’s examples, even if the ICC prosecutor is able to deftly push his or her investigations “just the right amount to convince national authorities that they must act” the only available consequence is the threat of an international trial. Though there may be some nuance regarding who the prosecutor seeks to indict, there is limited ability to calibrate the carrot or stick represented by the threatened international proceedings. And, indeed, the binary, inflexible nature of the threat can spill over into other aspects of peace making. The international community is finding this out to its detriment in Uganda where the ICC’s indictments of the Lords’ Resistance Army have reduced the flexibility and nuance with which peace negotiations can take place.
Even if it is true that the only way to spur some domestic trials is via international pressure, this would not justify the international community’s establishment of an international justice system. It seems highly inefficient and uneconomical to mount a billion-dollar judicial undertaking and have it serve essentially as a feint — i.e. used largely as a diplomatic and political chit, rather than for actual proceedings. And doing so is unnecessary when other spurs are available. Professor Roht-Arriaza perceptively notes that domestic cases in other countries, pursued under universal jurisdiction or otherwise, could serve such a role. Additionally, there are a host of other, non-judicial incentives that could be allayed.
After Genocide notes that tools to pressure states can range from “ostracism to sanctions to physical threats; [and] the past twenty years have seen the international community resort to each of theses threats to pressure a state to deal with war crimes.” (p. 274) Ostracism seems to be among the most promising of these tools. It was threats of ostracism, for instance, that were effective in pushing the Germans to continue their trials of Nazis after Berlin indicated its wish to cease trials in the 1970s. And more recently in Croatia, the nationalist government under Franjo Tudjman (1990-1999) was incentivized to hold many trials, also by threats of ostracism rather than the presence of international justice. Few of the defendants in the resulting Croatian trials were of interest to the ICTY and in one case in particular, that of the trial of Nazi Dinko Sakic, the defendant’s acts were not even under the ICTY’s jurisdiction. The pressure that led to the Sakic trial — which was highly political given Tudjman’s identification with and celebration of the Croatian Nazis — came from concerted international actors, threatening Croatia with its membership in the “community of nations” along with untold financial harm (from lost investment and aid) if a trial did not eventuate. It was not an international trial that forced the domestic proceedings, but other more nuanced threats.
The professor also implicitly notes an additional lever that may be used to pressure states to hold trials. She writes that in “both the Pinochet and Fujimori cases, what broadened and solidified majority support for trials was information that…they had enriched themselves and their families while” engaging in unspeakable acts. It was once their financial indiscretions were publicized that true political and public support for trials became unstoppable. It seems entirely possible, given the high degree of correlation between war criminal, war profiteer, and resulting impoverished state, that if the international community wishes to “pressure” a domestic state to take action it may be able to do so via providing and publicizing details of what Professor Roht-Arriaza calls, in a nice turn of phrase, the “pecuniary peccadilloes” of war criminals. Perhaps a Pinochet trial could have eventuated without the threat of a Spanish trial if his financial indiscretions had become known to the public? Information, rather than the threat of international judicial action, could lead to trials. And, as I argue in After Genocide, the moment a once-beloved leader is found to be a common criminal, his or her supporters can quickly fall in line behind further trials against them for other, more serious delicts.