The Politics of International Criminal Justice 2. Wherefrom It Comes One of the more interesting methodological issues confronting anyone wanting to write about international criminal justice is to determine where the phenomenon begins and where it ends. Indeed, rather than the specific treatment of a number of well-rehearsed common themes, it is what one decides to include under that general heading that can distinguish authors.In this respect, Beigbeder's title - `the politics of international justice' - is misleading and claims too much for a book that deals strictly with the international criminal tribunal/truth commission problE9matique and does not even mention the International Court of Justice (although it is in itself revealing of how much international criminal justice has come to be identified with international justice tout court). The conventional wisdom for a long time was that international criminal justice was essentially a problem of `justice and war'. Pierre Hazan's title and treatment suggests adherence to that view by describing international criminal law as essentially about `la justice face E0 la guerre'. Similarly, Bass is essentially concerned with the question of how wars are terminated. But is this essentially what international criminal tribunals are about, and is there not a chance of mistaking the nature of the problem with the context in which it arose? Beigbeder's treatment of the issue has the merit of moving beyond the narrow confines of international humanitarian law strictly so-called, although his treatment of crimes against humanity and genocide as coming under that heading is confusing. Ball similarly seems to subscribe to the prevailing taxonomy of referring to genocide as a war crime, as if genocide could not be committed in circumstances that had nothing to do with war. But why not do away with the war crimes vignette altogether when it comes to crimes against humanity? Geoffrey Robertson's principal contribution in what is otherwise a sometimes overly ambitious and even tediously repetitive book, is precisely to replace the rise of international criminal justice as the purported zenith of the much larger human rights discourse and movement. The author begins his narrative not with the usual Leipzig or Nuremberg trials, but anchors it firmly in an account of the emergence of the modern concept of rights in the Enlightenment. International humanitarian law and the humanitarian movement beyond it are reduced to their proper value as an old impulse which went through a renewed lease of life in the context of the interstate world or, as Yves Beigbeder puts it, a `specialized part of the international human rights regime' (p. 25). None of the authors reviewed pays much attention to or seems much perturbed by the paradox that the apex of the human rights movement comes in the form of a tribunal that is not a human rights tribunal properly so-called; nor has there been much notice of the historical irony that the international human rights movement, which started among other things as a challenge of the state's penal excesses, should end up legitimizing a huge system of criminal repression. But this reviewer would agree that, if one is to understand international criminal justice at all, it makes sense at least initially to understand it through the lens of those who see human rights as providing a blueprint for the overthrow of the traditional interstate world. Assuming that is the goal, however, then it is difficult to underestimate how inauspicious to international criminal justice the international system initially is. Although none of the books display much interest for the kind of systemic concepts that lawyers are fond of (such as sovereignty, or `legal order'), none is short of arguments to show the depth of reluctance emanating from the inter-state world. Beigbeder reminds us, for example, that states have often been unwilling to try even their enemies, and instances abound of dubious complicity between former arch-foes to interfere with the judicial process, as when the Americans protected both Emperor Hirohito and those responsible for the infamous Unit 731 from prosecutions. Different authors provide different theories of how international criminal justice can nonetheless be seen to have taken a hold within that environment. A. Summoning History For all our authors, History seems a passage obligE9 in tracing the fortunes of international criminal justice, one that provides the story with both the veneer of age and the character of an epic struggle. Almost all take us through what is by now a fairly familiar routine, from Kaiser Wilhelm (occasionally Napoleon) onwards, to Nuremberg, the Cold War interlude, and the revival of the international criminal justice project in the 1990s, through Armenia, Cambodia, South Africa and countless others. Most authors readily recognize that there has been no dearth of shortcomings associated with the international criminal tribunals from the use of retroactive law to the excessive use of vague criminal concepts such as conspiracy. In fact, there seems to be all the more willingness to recognize these shortcomings precisely because they are seen as reasons to improve international criminal justice, not to do without it. Hence, in due course, a finalized and well-functioning international criminal law system will redeem the project, and show it to have been directed in the right direction from its inception. After all, as Beigbeder puts it, for all its shortcomings, did Nuremberg not make `a significant contribution to international criminal law and justice' and provide `an essential historical, legal and judiciary basis for the later creation' (p. 49) of the ad hoc tribunals? The risk is of course to fall prey to some kind of historicist narrative that reads the past with the benefit of hindsight and as a validation of the present. One such example is Yves Beigbeder's reading of the Russel and Sartre tribunals as, essentially, informal predecessors to the current move to international criminal justice (pp. 137-145). The relationship of so-called NGO tribunals and those officially created by the international community is an eminently interesting question that has received insufficient attention, but Beigbeder's treatment seems a bit short. There was a radical potency, not to mention an organizational informality, in such happenings as the Vietnam Tribunal and successor events organised by the Lellio Basso foundation, that seem totally absent in the huge technocratic structures that the 1990s tribunals have become. In fact, the continuation and even the multiplication of NGO tribunals in parallel to the international community's efforts to formalize international criminal justice suggests that the former may continue to have a role in articulating the marginal and repressed voice in international law, long after institutionalised international criminal justice has become a permanent feature of the international stage. Beigbeder's suggestion that the tribunals should `choose their targets more carefully' (p. 145) seems unnecessarily dismissive, and to miss the point that their potency lies precisely in their capacity not to simply emulate `real' tribunals. Of all the books reviewed, it is Robertson's which finds the most martial intonations to describe the imminent rise of human rights sanctioned by international criminal tribunals as the emerging paradigm of international relations and law. Global justice is a struggle that pits human rights, overwhelmingly associated with justice, against the hypocrisy of sovereignty, `the traditional enemy of the human rights movement'. It is a struggle, with a `beginning' (natural rights) and a culmination (the ICC). The Holocaust is the `revelation' that changed things `for ever' (p. xiv); Nuremberg `stands as a colossus in the development of international human rights law'; the UN's `finest historical moment' (p. 34) came with the adoption of the Universal Declaration of Human Rights and the Genocide Convention, a `talismanic barricade' against `the onward march of tyrants and tanks and torturers' (p. 437); the `shameless hypocrisy' of the power blocs is the only thing that delayed the `momentous day' when crimes against humanity would be deterred by the `simple expedient of punishing their perpetrators' (p. xvi); the trial of Tadic `the foot soldier' (p. 333) may end up being viewed by history `as a deeply symbolic moment: the first sign of a seismic shift, from diplomacy to legality, in the conduct of world affairs' (p. 207); with the trial of Pinochet, `one of the most wicked men left in the world', the `age of impunity may be drawing to a close', and one may be witnessing `a kind of millennium shift, from diplomacy to justice as the dominant principle of global relations' (p. 437). Robertson does not minimize the obstacles that confront international criminal justice, and concedes willingly that `the evolution of international law is never a linear process' (p. xvi) but, if tone is any indication, he has a way of dwarfing them under the bullish evidence of his moral beliefs (`diplomacy is the antithesis of justice') that leaves little doubt as to where he thinks the wind of History is blowing. Globalization provides the indispensable background against which international criminal justice can flourish. Without a hint of that author's reservations, Robertson basically subscribes to Robert Hazan's view of international criminal tribunals as the `versant judiciaire de la globalisation' (p. 20). In the process, one cannot help having the feeling that one is being robbed of the finer subtext in that particular narrative. Surely, international criminal justice also tells another story, one that is at least more ambiguous, more fraught with power. Particularly central to that story must be the question of why states create international criminal tribunals at all. After all, this has got to be the single most important question: why would states ever bother to create institutions that might end up turning against them or at least be invoked against them as precedents towards a purported moralization of the international order? The conventional explanation from a realist perspective since Nuremberg is that states create international criminal tribunals to legitimize their goals and because they think or know they can control them. Norms do not have a hold on power - it is power that dictates the norms. But the creation of the ICTY and the ICTR in a very different context do raise a question: surely these were not cases of victors' justice in the more blatant sense understood at Nuremberg and Tokyo? Something is simply not quite well explained by the dominant theory. B. Liberal States Do It Better Bass's is the first book-length attempt, and the only one in the books reviewed here, to try to fit into contemporary international relations theory a phenomenon that otherwise remains curiously unaccounted for. His work is interesting precisely because it seeks to run against some of the all-too-obvious realist shortcuts, by changing paradigm altogether. In a sense, Bass develops Robertson's concept of international criminal justice as rooted in human rights, but, where Robertson had mostly his belief in progress to offer, Bass seeks to anchor the growth of international criminal justice firmly in liberal internationalist theory. As is well known, liberal theory has known something of a striking revival in international relations in the past decade. Ambitious programmes have been announced to marry it with the study of international law.4 One might surmise that international criminal justice was of course not disapproved of by liberal theory, but nor was it endorsed in any systematically coherent fashion. Bass's merit is to try to make the case of how the emergence of international criminal justice can be seen as the product of those polities that are most associated with the promotion of the human rights movement, namely, liberal states. Liberal states are said to be prone to a particular belief that the author, loosely following Judith Shklar, describes as `legalism'. In short, faced with the choice between summary executions and the creation of international criminal tribunals, liberal states will tend to go for the latter option. Here, therefore, is one more thing that liberal states do that others do not, on an ever-extending list. 1. Liberal Illiberalism Bass's presentation is not highly sophisticated from an IR-theoretical point of view5 and the book sometimes appears as if a theoretical introduction and conclusion were heaped on what was a lot of - otherwise good - journalism. But nor does he necessarily claim to be a theorist, and his exposE9 serves as a good introduction to what the argument might be. Fitting the creation of international criminal tribunals into liberal theory, however, turns out to be by no means an unqualifiedly straightforward exercise. To begin with, it is not clear that only liberal states support prosecuting war crimes. In order to meet that challenge, Bass is led to distinguish between bona fide, `serious' war crimes tribunals and illiberal states' support of `show trial(s) only as a way of pursuing a Carthaginian peace' (p. 28). Like Robertson he makes a big case of international criminal tribunals' `distinctive legalism' as being the `antithesis' of show trials. Emphasis on show trials, from the Jacobinist Fouquier Trinville to the Stalinian Andrei Vyshinsky, described by Robertson as `monster lawyers', acts as a useful reminder of how injustice can spring from a perverted pursuit of justice (pp. 17-20). But this does not explain why one of the characteristics of all ad hoc international criminal tribunals is that they have been supported by both liberal and illiberal states. It also seems to neglect the extent to which - although Nuremberg probably looked extremely different from what a victorious Hitlerite court might have been - the characteristic of even those trials that had the dominant support of liberal states is that they displayed strong elements of both liberalism and illiberalism. Blaming international criminal tribunals' occasional illiberal lapses on the fact that they counted illiberal states among their supporters would simply risk misrepresenting historical reality, since it was Churchill, after all, who initially sided with Stalin in wanting the whole Nazi clique to be summarily executed. Nor is it clear, of all things, that liberal states have supported the creation of international criminal tribunals for liberal reasons, and at times Bass seems to simply over-emphasize the impact of political culture. The description of the `best hope' for the ICTY as lying in a `handful of angry and legalistic senior Western officials, foremost among them Madeleine Albright' (p. 208), a claim that Michael Scharf also seems to share, rings particularly hollow in light of Pierre Hazan's descriptions of a series of eminently political volte-faces by the above-mentioned Secretary of State. This suggests that, although there may be certain predispositions to international criminal justice in liberal states, it is something other than that predisposition that serves as the trigger to establish international criminal tribunals. This is implicitly recognized by Bass when he adds a first major qualifier to his sweeping hypothesis, which is that liberal states only support international criminal tribunals in certain circumstances. Indeed, apparently the key to the mystery is not to know why liberal states do support international criminal tribunals but why they do so little: `Liberals', we are told, `need to ask why liberal States so often fail to pursue war crimes tribunals' (p. 28). In order to answer that question, the author suggests a number of variables. States, it is argued, are more likely to push for international justice if crimes have been committed against their own citizens, or if their soldiers' lives are not at risk. Somewhat less importantly, states are more likely to resort to international criminal justice if public opinion, rather than elites, is outraged, and if non-state pressure groups are involved. Apart from the fact that these variables seem rather unremarkable, it is their status within the author's overarching theory that is not quite clear to the present reviewer. 2. A Case of a Glass Half-Full/Half-Empty? There are basically two ways one can look at the issue. On the one hand, one can see the variables as not truly limitations to liberal theory at all, but merely a way of saying that some liberal states are not liberal enough or are not liberal in the right way, because they let some `other interest' get in the way of their presumably true liberal nature. This kind of nuance is conveyed by Bass's idea that legalism itself is `a concept that seems only to spring from a particular kind of liberal domestic polity' (p. 7). If that were the case, however, then there is a sense in which the theory would never be disproved. One could merely say that liberal states who did not support international criminal tribunals were simply not up to their own credentials, and that if only liberal states were fully liberal then liberal theory would explain their behaviour. On the other hand, one can see the variables as opening the way to what liberal theory was precisely supposed to exclude, or at least mitigate. What are these factors that run counter to liberal states' otherwise natural propensity to create international criminal tribunals, if not a form of realist interest? Bass may be right, but he is ambiguous. Even if protecting soldiers was the main factor in war crimes policy, this seems to this reviewer as simply a negative way of saying that some political interest remarkably short of liberal benevolence is an indispensable ingredient in creating international criminal tribunals. Certainly protecting one's soldiers is not the monopoly of liberal states, and although there may be ways in which liberal states are more sensitive to sacrifice, how and why is never quite made clear. The same applies to the concept of proximity as a trigger for the support of international criminal tribunals: surely that is another way of saying that states could not care less about conflicts that do not concern them, a statement hardly difficult to reconcile with realist clichE9s. Hence, Bass's concessions about the limits of liberal theory lead to a classic half-full/half-empty glass type of problem. If liberalism is just a predisposition, however, and it is crucially the conjunction of that predisposition and a realist interest that makes the creation of international criminal justice likely, then Bass seems to have heaped up so many qualifiers on his hypothesis that it no longer stands. If all that liberalism allows to predict, moreover, is that if and when liberal states do create international criminal tribunals they create liberal ones, then liberalism has not explained much, because it mistakes the importance of form for that of substance: legalism could only be said to be a determinant variable if it affected the decision to create tribunals per se. If liberal states were truly liberal in their foreign policy, then they would be principled in their creation of international criminal tribunals. Interest serves as the revelator of what would otherwise remain a desperately invisible ink. In terms of sheer causality, liberalism hardly works wonders. Towards the end of Stay the Hand of Vengeance, when Bass announces that the `story of the politics of war crimes tribunals is really the story of the constant tension between liberal ideals and crude self-interest' (p. 276), one is already well on the way to a substantially fudged conclusion, and left wondering why the after-thought did not make its way earlier into the discussion. And by the time Bass takes the final step of concluding that `for the most part, the selfish impulses have won out', one is left wondering: if liberalism is such a pierced net (and, one might think, the author knew it all along), why bother in the first place? There is thus an obvious tension running through Bass's book between conspicuously electing liberalism as a paradigm and immediately underlining its `sharp limits' (p. 28) as if the explanatory power of liberalism always needed further variables to stick (perhaps, the critic might say, because liberalism in practice is not quite the way it appears in theory). In the end, this criticism would not seem worth belabouring much, if the author himself did not make such a point of formulating his research in international liberalism's phraseology. As it stands, Bass makes his argument sound more faddish than it deserves. This is all the more regrettable since liberalism does indeed seem to have something useful to contribute to our understanding, provided it abandons some of its more hegemonic-sounding claims, and can find its place in an overall theory of interest formation. C. Bringing the `Real' Back In Perhaps Bass's framework would be more illuminating with a shift of emphasis. It is interest after all that dictates whether states support international criminal tribunals or not. Interest, however, does not exist in the void but is shaped by - although it does not thereby become merged with - political culture. This might be particularly true of liberal polities, perhaps because liberal polities impose sharp constraints on what can and cannot be said publicly. Such a reversal of perspective may not seem that distant from Bass's carefully treaded path, but by taking interest as its starting point it does take it seriously . Indeed, the point about whether liberal states support international criminal justice more or less or differently than non-liberal ones, is in the end more about liberal states - rich with apologetic and promotional undertones, one might think - than about international criminal justice itself. And although Bass invokes the usual warning that he is not interested in normativizing, a theory that says that only liberal states are likely to create rule-of-law war crimes trials is not exactly norm-free either. 1. Interest is Not What It Seems What interest, therefore, albeit liberally qualified, is at the origin of support for international criminal tribunals? As an explanation of interest, Bass's does not strike one as being as good as it could have been, perhaps because it is not really what the author was interested in in the first place. The point about the fear of loss of soldiers' lives, which Bass repeatedly describes as `perhaps the single biggest impediment to the creation of robust institutions of international justice' (p. 28), in particular seemed to this reviewer to be grossly overdone. It is simply not unequivocally true that `states have been amazingly consistent in their refusal to pay for international justice in the lives of their own soldiers' (p. 277). Bass seems to underestimate the extent to which this is often simply an argument that is used for public opinion. As it turns out, by the time arrest operations were launched in the former Yugoslavia, hardly any Western casualties were sustained. One of the principal British negotiators at Dayton, Pauline Neville-Jones, confided as much to Pierre Hazan by recognizing that the allied pessimism had turned out to be unfounded (p. 123). Bass fails to explain why states suddenly decided to reverse their policy, which must surely depend on something more than evolving risk-assessment. In fact, this would seem to be a typical example where liberal theory's homogenizing tendencies claim too much. It is only too obvious from reading Bass's book, despite his archival work at the Foreign Office and the Quai d'Orsay, that he has the contemporary United States - elevated for the purpose of his demonstration as the archetype of liberal polities - in mind. But it can be doubted whether, for the purposes of understanding international criminal justice, there is such thing as a meaningful generic category as `liberal polity'. The fear of losing soldiers in the course of arrest operations may be a valid description of the mood of US public opinion then in the throes of the Somalia syndrome and obsessed with the failed arrest of Aideed. But the British or the French who suffered dozens of casualties as a result of a fatally flawed peacekeeping effort in the former Yugoslavia might have been inclined to loose a few more in well-targeted arrest operations. Indeed, these countriesinitial failure to conduct arrests had precious little to do with fear of losing military lives, as shown by the fact that it persisted even after the disbanding of UNPROFOR and by the time the security situation had favourably evolved.. If anything, and in a more structural way, fear of losing soldiers may paradoxically be precisely one of the main reasons to create international criminal tribunals. This is a point made almost compulsively by all authors and one which Bass himself (somewhat confusingly) recognizes when he underlines that, with the creation of the ICTY, `[l]aw became a euphemism for inaction' (p. 215). This makes an unwillingness to contribute the lives of one's soldiers a factor contributing overall to the creation of international criminal tribunals, not the contrary. As it happens, there were probably much deeper reasons for failure to support international criminal justice than the prospect of losing a few commandos in an arrest operation. These had considerably more to do with deeper misgivings - US, British and French - about the whole concept of international criminal justice and the risks it imposed on already fragile peace processes, concerns that were rooted in century-old state habits. Even for the less realist-minded, arrest operations could be seen to potentially conflict with peace-building initiatives and a fragile post-conflict reconstruction. As Michael Scharf notes, for example, the fear was that in dispatching troops one `would fuel the conflict by handing the two sides more scores to settle when NATO was scheduled to depart' (p. 225). Bass recognizes this in passing but it somehow never makes it to his theoretical framework. 2. Instrumental Liberalism Why, conversely, did states finally come round to supporting international criminal tribunals? This is where liberal theory gets its real chance, though through a slightly unexpected route. The context is one of utter failure, all peacekeeping efforts in Bosnia having been sterile.The one turning point that all authors identify is the 1992 media reports of concentration-type camps in Bosnia. By touching at the very heart of European memory, these caused a kind of knee-jerk effect in public opinion by reactivating the `religious imagery of the victim' (Hazan, p. 76). How these fed into political processes and outcomes, however, is what is at issue. Robertson seizes repeatedly on what he calls the `CNN factor', although without the caution that has elsewhere become customary. His is a fairly simple world where it is `the collective anger produced by [the knowledge of war crimes thanks to CNN] and its application to the conduct of one side in a foreign war which serves 85 to tilt international opinion towards intervention on behalf of the opposing side' (p. 168). Thus CNN ends up serving as a `recruiting officer for the human rights movement' (p. xix), and mechanically leads to `demands by people around the globe to do something to stop the violence' (Ball, p. 140). It may well be true that, as Ball points out, as early as the Second World War, the United States's turnabout decision to support the creation of an international criminal tribunal was triggered by publicity surrounding atrocities committed by the German Army at MalmE9dy (pp. 47-48). The decision to create the Commission of Experts on the Former Yugoslavia and the ICTY itself, in fact, was predictably somewhat more perverse than the virtuous media's and leaders' `principled beliefs' line suggests. Many continued to think that an international criminal tribunal would complicate the search for a settlement. An older-generation European statesman like Mitterand remained stubbornly unconvinced of the merits of a solution that probably ran against his better diplomatic instincts. The outcry from public opinion, however, did make it necessary to give the impression that something was being done about the crisis. This was true of Europe which was too weak and divided to propose anything of substance, and it was above all true of the United States which had not yet committed troops on the ground and was in search of alternative policy options. Here paradoxically lay liberal cosmopolitanism's chance: in the shallowness of the West's empathy about the wretched plights of the populations of the former Yugoslavia and Rwanda. The profound osmosis between the rhetorics of international criminal law and politics is made clear by almost all of the books reviewed. Roland Dumas, then France's foreign minister and one of the early backers of the ICTY, is remarkably frank about this in his interviews with Pierre Hazan: himself sceptical about the idea, he decided to back it in front of Mitterand as a kind of insurance policy against the risk of being accused of complicity by posterity. At the same time, the transformation of the Yugoslav crisis from a principally political problem to an ethical one in the eyes of public opinion set off a bizarre and frantic race for historical legitimacy between France and the United States. Each of these states seemed to calculate that, if an international criminal tribunal were to be created at all, it would be in their interest to be associated with the aura of reviving the idea, while not pushing it so far ahead that it would get out of hand. Michael Scharf provides a first-hand account of how he was recalled in Washington after the French had `pull[ed] the rug under us [i.e. the State Department] and [stolen] our thunder' (p. 52). By the time the creation of the ICTY became inevitable, even Mitterand would seek to portray himself as one of its promoters. 3. Densifying the Equation This puts the decision to create international criminal tribunals somewhere between liberal ingenuity and realist interest, in a way that has perhaps become surprisingly characteristic of our age. On the one hand, there are undeniably elements of domestic liberalism spilling over into the international, at the considerable (but discreet) annoyance of diplomats such as Vance and Owen involved in the negotiations. Most authors show how diplomatic discourse is gradually distorted by the rhetoric of morality, soon to be followed by that of international criminal law. Each time they uttered statements raising the moral stakes of the war, leaders found themselves more or less unwittingly pushed a little further in the direction of international criminal justice. On the other hand, precisely for these reasons, one is dealing, if not with neo-realist orthodoxy, at least with a venerable tradition of political manipulativeness, since the tribunals were created merely, in the words of Pierre Hazan, as an `anxiolytique' for public opinion rather than as long-term commitments to international criminal justice. From the outset, therefore, an element of Machiavellian deceit was superimposed on a demand for justice. Public opinion had what it craved, and the `innocence and virtue' of the West (Hazan) was at least symbolically reaffirmed. The ICTY was created `as if to stop the world laughing at its impotence, as a substitute for effective military action to stop the war' (Robertson, p. 286) or as a `post facto substitute for an effective, timely, military intervention by the UN Security Council' (Beigbeder, p. 171). Ball quotes Holbrooke's description of the ICTY as `little more than a public relations device' (p. 141) to the same effect. However, as might be speculated where there are decisions which an elite is ostentatiously pressed to make that it does not profoundly approve of, the immediate price for international criminal justice was that the idea was little more than a figleaf for political and military decisions not taken. One need look no further than the Kalshoven/Bassiouni commission, a kind of dress rehearsal for the difficulties that the ICTY would encounter, to understand the duplicity and delay involved in the tribunal's creation. The surreal contrast between the idealist rhetoric surrounding the creation of the ICTY, and and the indifference of the international community towards the continuing massacres in Bosnia could hardly have been greater than in 1993. That, however, is in a sense the easy part of the story, and on this most authors agree. Indeed, classical liberal theory coexists happily with interest, and may even emphasize how the pursuit of individual (in this case states') interest can lead to collectively beneficial outcomes. There is little doubt, furthermore, that one can be a die-hard supporter of international criminal tribunals and still recognize that they may well have been created for all the wrong reasons from the point of view of justice. In fact, few lawyers would claim that the cradle of international criminal tribunals was not surrounded by a great deal of calculation. That would still be compatible with a triumph of liberal progress, if international criminal tribunals then somehow went on to mete out justice to the guilty. Rather, the really interesting question is whether from that inauspicious cradle international criminal tribunals could rise to the challenge that awaited them and become real forces for justice. Bass hints strongly at this in his introduction and even refers explicitly to liberal institutionalism as a distinct theoretical trend, but does not follow it up systematically afterwards. It is Pierre Hazan, above all, who raises the question of whether `[u]n tribunal, crE9E9 par la volontE9 du Conseil de sE9curitE9, peut-il s'autonomiser de toute tutelle politique et se retourner contre ses pE8res fondateurs' (p. 13). 4. The Liberal Institutionalist Thesis, or How the `Petit Juge' Took on the Leviathans This, of course, is the stuff that liberal success stories are made of: `politicians' create institutions in the belief that they can manipulate them, only to find that, with justice turning a blind eye, law then follows its own inflexible course. It is also the story that those involved in the work of international criminal tribunals understandably like to believe and to tell about themselves. In the pure tradition of individual will making a difference against the forces of evil, accounts of tribunal employees risking their lives in quasi-covert missions in Kosovo give the requisite anecdotal dimension that truly gripping struggles are made of. Still, that lawyers like the image such accounts give of them does not say much about the truthfulness of the story. D. Pulling the Strings? The Effect of Political Processes on the Tribunals That the Security Council had created the Tribunal without any intention of letting it do its work would soon become apparent, and it is difficult to imagine more dismal beginnings for the ICTY than those that awaited it in late 1993 when it convened for the first time. The minimal constraint imposed by liberal ideology had probably allowed the Tribunal to escape the worst: an early American suggestion that it be supervised by an administrative council composed of the members of the Security Council was simply more than public opinion would have been ready to stomach. The ICTY might be a subsidiary organ of the Security Council, but it could not simply be merged with it, or the bluff would be exposed. Beyond that, however, the Security Council obtained almost everything short of outright suzerainty, notably by controlling all key nominations. Indeed, it is surprising how little changed with the creation of the Tribunal and how its politics went on to closely mimic internally those that had led to its creation: nominal support on the one hand, and complete absence of real cooperation on the other. For most of its early years, the Tribunal would be a toy in the hands of the great powers: allowed to do its work when for the most part that suited political designs, but suddenly reined in whenever it showed signs of threatening the status quo. 1. The Ways and Means of Influence Influence, of course, is a tricky process to measure, and it is important to avoid seeing the hand of Washington, Paris or London lurking behind every Tribunal decision. Not every delay in indicting key suspects, was attributable to outside pressure. Various prosecutors have been quick to point prosecuting work has its own professional constraints so that prosecutors, who are also gambling some of their professional credibility, are naturally conservative in making accusations they will then have to defend in court. Lawyers with practical experience of criminal trials may therefore be more inclined than Pierre Hazan to give the Prosecutor's office the benefit of the doubt when it claims that at least for a while the odds of securing a conviction of Karadzic were simply not strong enough to launch an indictment. With the benefit of hindsight, the Prosecutor's office's slowness can be seen as the product of a slow encircling strategy focusing little by little on those primarily responsible, rather than merely a process of subjugation to the political. This is of course not to neglect the possibility that, every now and then, the Security Council will choose a Prosecutor who does not have to be - even if that was conceivable - `told what to do', simply because he happens more or less implicitly to share some of the Security Council's strategic options (after all, this is what handpicking is about). Goldstone comes out in Pierre Hazan's book as a good example of a lawyer who, while of doubtless professional probity, was not totally `unreceptive' to political exigencies and who was not overly thrilled by the idea of indicting Karadzic and Milosevic.6 By the same token, it is quite clear from the experience of the Tribunal that there was no shortage of outside intervention either. The days when General MacArthur purported to rule the Tokyo Tribunal by decree are remote and, apart from one Russian ambassadorial request to freeze indictments, instances of known direct interference have been rare. But the ways and means of influence are multifaceted. At the most blatant, there are the discreet `corridor' pressures, the `expressions of concern' dropped more or less casually by more or less authorized diplomats at key junctions of unfolding crises. Lord Owen has explained to Pierre Hazan how he would steer clear of anything which might look like a direct instruction, but would make sure to explain the negotiating process to the Prosecutor `with great care'. There are also cases of simple bureaucratic obstructionism: the lost archives, the delays in answering requests, and infatigable imagination for red-tape. The UN Secretariat stands out in all the books as one at least initially more concerned with responsiveness to evolving Security Council priorities than with providing vigorous support to a new institution that depended entirely on it for its logistics. Finally, there is the fundamental and often avoided question of money, no less the lifeblood of justice as it is of war. Michael Scharf paints a vivid picture of what a dismal financial state the Tribunal was in its early months and even years (pp. 79-84). There is of course no such thing as complete independence, if only because the Tribunal has to receive its budget from some source. The voluntary contribution/regular UN budget dilemma illustrates what is in some ways an insoluble quandary: on the one hand the risk of a tribunal that fails to work because of lack of money, on the other a tribunal that risks being controlled by it. As it happens, the Tribunal got a taste of both as its financial balance sheet closely followed its political popularity with major funders. It is hard to believe that in the beginning the Tribunal lacked everything from computers to translators and was literally asphyxiated by the lack of funds. This made the ICTY vulnerable to a hegemonic takeover bid: the United States, for one, initially offered 20 personnel for the Prosecutor, threatened to withdraw them during Dayton, and topped up the Tribunal's budget with an extra US$1 million during the Kosovo crisis. 2. A Legacy of Legal Pugnacity If the Tribunal achieved anything from there, it did so thanks to the activism of its judges and, at least since the nomination of Louise Arbour, its Prosecutor. One is reminded that it is Antonio Cassese himself who broke a deadlock over the choice of a prosecutor by headhunting Goldstone (`habemus papam!') - hardly a banal professional occupation for an international judge. Paradoxically, the scrupulous efforts to exclude judges that were somehow culturally or religiously `connoted' would lead to the choice of magistrates so `independent' that they would in due course become unpredictable. In the complex game of internal tribunal politics, the judges would even go as far as to exercise a discreet oversight of the Prosecutor's strategy. Hazan has some particularly gripping lines to describe the muttered incident that led the bench to rebel against Goldstone's perceived shyness by threatening to issue a public statement euphemistically `expressing [its] worries' about his strategy. And then there was what must by all accounts be the most potent political tool of all: direct appeal to public opinion. If the Tribunal was created thanks to pressure by civil society, then, it seems, so would its flame/fortune be rekindled. Recourse to public opinion is of course a delicate tool: used too often it risks being blunted by apathy. But in the right context, it has proven to have the potential to make a difference. Some of the Tribunal's representatives have certainly proved remarkably deft at public relations. When the UN blamed its financial crisis for its proposal to cut the ICTY's budget in the aftermath of Dayton, for example, the judges wrote a collective letter to Boutros Boutros-Ghali which contained barely hidden threats to make the matter public. When rumours emerged that Milosevic might have been granted amnesty by Holbrooke in exchange for a cease-fire, Louise Arbour equally threatened to bring the issue to the press. She would later convoke the world media to witness the Serb refusal to allow her to enter Kosovo. If worst came to worst, leading members of the Tribunal could always put the threat of their resignation in the scale. E. Loosening the Strings? The Effect of the Tribunal on Political Processes If one were prone to such rapid formulae, one might say that the effect of the Tribunal on political processes and particularly the sensitive question of peace-settlements, is inversely proportional to the effect of political processes on the Tribunal. That is, the more the Tribunal is seen as independent and impartial, the larger the impact it is likely to have on actors in the field. The Tribunal could be dismissed with a sneer in the early days by its own creators. Worse than attempts at manipulation designed to stifle its independence, it was often the utter neglect with which the Allies treated the Tribunal that could keep it at arm's length from the peace process. 1. Justice's Political Responsibilities In this context, both the Prosecutor and the judges came to see it as part of their responsibility to promote a certain idea of international criminal justice versus what they saw as scheming and ultimately self-defeating attempts to negotiate with the devil. This might appear slightly odd in some domestic contexts, and there was nothing obvious about judges so identifying with the cause they worked for that they would choose to also act as political helmsmen to the Tribunal. Nothing could be more remote from the reality of the Tribunal, however, than the image of sitting-back, law-applying judges. Paradoxically, it was only at the cost of transforming themselves into crusading diplomats that the judges could one day hope to normalize their work. Of course, it is part of the judges' and prosecutors' role that they would back off indignantly from any claim that they were involved in anything as unbecoming as `politics'. But there was in fact much less legal ingenuity - what Bass described, perhaps a little severely, as the lawyers' `way of washing their hands of responsibility for the political consequences of their own legal proceedings' (p. 6) - than catches the eye. Both Goldstone and Cassese, for example, sought to impress on negotiators that they thought amnesties were not an option. It has even been suggested that some indictments were timed to coincide with Dayton. According to Hazan, Cassese at one point argued for the reimposition of sanctions against Bosnian Serbs, and Arbour relentlessly fought states' inertia in complying with their obligation to arrest suspected war criminals. At times the Tribunal even went so far as to develop a sort of para-diplomacy of its own, as when a former senior employee of the Prosecutor's office soon to return to the Tribunal made a visit to Karadzic to try and negotiate a surrender. The Tribunal's senior representatives seem to have assimilated well the lesson that just because one is dealing with law does not mean one should not take cognizance of politics. 2. Constraining Politics? The indictments eventually had their effect on the negotiating process, although again perhaps not in the straightforward ways that had sometimes been predicted. As Bass points out, contrary to the oft-heard claim that legal rigidity would prevent negotiating with indictees, it was a lawyer himself in the person of Goldstone who obliged by pointing out to the Americans that, since Mladic and Karadzic were innocent until proven guilty, he saw no obstacle in principle why the Americans should not negotiate with them. By the time the Tribunal had put itself on a steady course, it would become ever easier for it to capitalize on its reputational assets. If it came down to that, threatening to publicize NATO's lack of cooperation (particularly by making public secret indictments on which NATO had failed to act) seemed an effective way of steering states into action. One minor way in which the Prosecutor could unblock the status quo, for example, was by playing on state rivalries. Although generally united in their lukewarmness about the Tribunal, even minor differences could be exploited. Louise Arbour, for example, effectively stung Gallic pride at a time when cooperation from Paris was at an all-time low, by pointing out how much better the British SAS were doing at arresting key suspects. Divide to rule: it is difficult to think how much more political than that lawyers can get. With the indictment of Milosevic, the Tribunal did end up imposing `its' solutions on the international community, signalling a point of no-return in the larger political process. Although official declarations that this complicated the peace process are hard to come by for obvious reason,7 it is clear that not all involved were pleased. The irony, of course, is that the international community was in the end obliged to commit the resources it had for so long carefully avoided committing to the former Yugoslavia, precisely by the institution it had devised to escape its responsibilities. 4 Slaughter Burley, `International Law and International Relations Theory: A Dual Agenda', 87 AJIL (1993) 205. 5 There are many parts of the theory that remain obscure. For example, whether the author is concerned with a liberal variant of foreign policy analysis, or whether he is interested in the more structural implications of the liberal peace debate, and, if the latter, by what mechanism structural characteristics are transformed into policy outcomes. 6 Although, perhaps unsurprisingly, in his own memoirs, Goldstone makes exactly the opposite case, namely, that he was largely `innocent' of the political ramifications of his work. See R.J. Goldstone, For Humanity: Reflections of a War Crimes Investigator (2000). 7 Hence the anonymity of one of the most famous articles on the issue. Anonymous, `Human Rights in Peace Negotiations', 18 Human Rights Quarterly (1996) 249.
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