Evil on trial

Can war crimes tribunals and truth commissions really curb man's inhumanity to man?

Published October 11, 2000 9:34PM (EDT)

In 1994, prominent South African justice Richard Goldstone was picked to head the United Nations' International Criminal Tribunal for the Former Yugoslavia. Before hearing even a single case, he discovered that not every leader shared his vision of justice. Former British Prime Minister Edward Heath asked him, "Why did you accept such a ridiculous job?" If people wished to murder one another, Heath bluntly informed Goldstone, it was no concern of his so long as they consented to do so outside the British Isles.

The 1990s began with spiraling hopes unleashed by an unfrozen Cold War -- "watching the world wake up from history," one pop song had it as teenagers danced atop the dismantled Berlin Wall. The future seemed to promise an explosion of harmony and peace. Instead, set free from the rigors of great-power politics, world citizens set about murdering one another with enthusiasm and a wide variety of implements, from helicopter gunships in Chechnya to rifles in Bosnia. Americans learned terms like "ethnic cleansing" and discovered that age-old hatreds could turn neighbors into snipers picking one another off from the hills as children crept out to forage for water and food.

If such world-devouring brutality has tempted Heath and others to throw up their hands, people like Goldstone have done their best to underline fragile notions like "justice" and "truth," holding fast to what can often seem like pointless abstractions. But have Goldstone and his peers made any difference? Or have the murderers won?

In some ways, the answers lie all around us -- consider the still-unpunished Slobodan Milosevic, the horrific civil war in Sierra Leone, the precarious stability of countries like Somalia. Princeton political scientist Gary Jonathan Bass summarizes the situation in "Stay the Hand of Vengeance: The Politics of War Crimes Tribunals," an exhaustive and magisterial survey that chronicles the complexities of such proceedings from Napoleon through Rwanda: "Do war crimes tribunals work? ... No, war crimes tribunals do not work particularly well. But they have clear potential to work, and to work much better than anything else diplomats have come up with at the end of a war."

In that more limited sense, today's war crimes trials can lay renewed claim to truth and justice, even if they cannot put either one into practice. (Leaders may be tried and found guilty in absentia, which offers no guarantee that justice will ever be done them but does stamp them with international disgrace.) In the conclusion to his brief memoir, "For Humanity: Reflections of a War Crimes Investigator," Goldstone holds out the tenuous promise that the U.N.'s punishment of lower-level Serbian killers "has sent out a message to would-be war criminals that the international community is no longer prepared to allow serious war crimes ... without the threat of retribution."

War crimes trials work under the assumption that such retribution (most often legal proceedings held by victors at the end of a declared war) can somehow assert a morality at least roughly equivalent to the extraordinary amorality this century has witnessed -- as if due process for the commandant of Auschwitz atoned for the lives lost under his brutal care. Short of some Sisyphean eternal sentence, however, these trials do offer one of humanity's best options: They're better than forgetting and more equitable than simply lining up and shooting however many enemies you've managed to corral; they signal a return of order and a restatement of moral principle. If wrongdoers can hear the evidence against them, have their guilt proved and receive an appropriate sentence through due process, justice -- not might -- is once more proved right.

Still, the process can sometimes resemble the proverbial attempt to nail jelly to a wall: Ideologues and major perpetrators always seem to wriggle away from judgment, leaving flunkies holding the bag. (In present-day Rwanda, hordes of ordinary men languish in killingly overcrowded jails with scant hope of eventual trial.) The Allies, attempting to hold Nazism itself to account at Nuremberg, had to content themselves with sentencing a mere 3,500 or so out of an estimated 100,000 to 500,000 perpetrators -- and those only for wartime aggression rather than the Holocaust. How much of this paid back the victims' suffering, and how much conveniently and arbitrarily let off hordes of killers in the interest of "moving on"?

Further, war crimes trials provoke knotty political questions. Do they represent merely "victors' justice," the opportunity for winning powers to lay any and all blame at the feet of their prostrate enemies? Where does one prosecute wrongdoing, and by whose laws? The Nazis were judged retroactively guilty for acts that were perfectly legal at the time -- as if, after the Civil War, the North had punished Thomas Jefferson for holding slaves in 1820. Who gets prosecuted and why? Clearly, justice is neither blind nor exact -- how did Saddam Hussein and Pol Pot escape sentencing? And most painful of all, whose hands are clean enough to sit plausibly in judgment? Does the United States, whose training and equipping of right-wing death squads was partially responsible for the murder of thousands of Central Americans in the '80s alone, retain sufficient moral authority? Of course, no major power can boast much better: Consider the blood on the hands of the British in Northern Ireland, the French in Rwanda and the Russians in Chechnya. Given these cases, who can lay down the law to the Foday Sankohs of the world?

A sensible observer might conclude that when it comes to crimes against humanity, nobody learns anything. In 1915, the British government solemnly vowed to redress the Ottoman Empire's then-recent massacre of more than 1 million Armenians by trying those responsible at the war's conclusion: "When the day of reckoning arrives the individuals who have perpetrated or taken any part in these crimes will not be forgotten." That trial never took place, put off by the Ottomans' collapse and then put aside in the swap for British prisoners held by Turkish nationalists. As Adolf Hitler famously sneered two decades later, "Who now remembers the Armenians?" Ever since Nuremberg, politicians have pledged repeatedly to remember -- "never again" will the international community stand pat in the face of atrocity.

But is it the "never" or the "again" that resounds loudest? Listen: "We ... should have been more active in the early stages of the atrocities in Rwanda ... and called them what they were -- genocide," Madeleine Albright admitted in late 1997. (During the actual massacres, White House spokesmen deliberately fudged the issue, claiming that "acts of genocide" were taking place but not the thing itself.) "Never again must we be shy in the face of evidence," President Clinton proclaimed three months later.

In sum, anyone hoping for more than an assertion of moral principle from most war crimes trials is probably dreaming. Until some international body puts teeth into these tribunals, murderers will continue merrily along their way, thumbing their nose in the face of world opinion in the serene confidence that no real retribution will be forthcoming.

If war crimes trials are the mailed fist of international response, truth commissions are its voice of sweet reason -- an opportunity for any culture to make a new start, to change the ways its citizens think about and treat one another. Former victims stand up and say, "This happened to me," and the cumulative weight of their testimony makes evasion infinitely more difficult. "But for the Truth and Reconciliation Commission" in South Africa, Goldstone writes, "there would have been widespread denials of most of the worst manifestations of apartheid, and those denials would have been believed and accepted by the majority of white South Africans. This is no longer possible."

At best, in South Africa and the former East Germany, truth commissions have forced evil into the light. Whether its voice is collective (as in South Africa) or individual (as in East Germany, where citizens could choose to read their Stasi files), truth telling gives subaltern knowledge the imprint of official truth -- a gesture that not only validates what was once folklore (as in the case of America's syphilis experiments on African-American men) but also forces the privileged, often indirectly oppressive, majority to see the world through the victims' eyes.

Of course, no truth commission comes with a money-back guarantee. Even when the results are aired publicly and immediately, a nation may still avert its eyes. Consider the aborted 1995 Smithsonian Enola Gay exhibit, shouted down by Congress and the press for having the temerity to suggest that Hiroshima and Nagasaki were obliterated for not entirely admirable reasons. Moreover, the queasy moral arithmetic required of any even moderately complicated commission -- can and should it trade amnesty for testimony? Does revelation equal forgiveness? Should it name names or not? -- opens innumerable "Oprah"-esque opportunities for wrongdoers to confess all and expect absolution in return. In a culture of victimization, even torturers may point to bad childhoods.

At least at the outset, no truth commission is stronger than the political consensus that gave it birth; such organisms, after all, simultaneously rely on and disturb the fragile equilibrium that made them possible in the first place. In April 1998, after a difficult peace process marred by large-scale grants of amnesty to the military that had committed peasant massacres as a matter of policy for three decades, Guatemalan bishop Juan Gerardi publicly delivered "!Nunca Mas!" (once more the hope, or plea: "Never again!"), a summation of 6,000 interviews that comprehensively documented government atrocities. Two nights later he was bludgeoned to death with a cement block in his garage so brutally that the ring on his finger provided the only means of identifying the corpse. The government, alleging that "personal motives" somehow underlay the attack, reported no progress after a year of investigation.

But the heartening truth is that cleansing dirty laundry can actually strengthen a fragile polity by reestablishing concepts of civic equality and belonging; after surviving atomized and fearful societies wrought by terror, they suggest, citizens can join together to behave fairly and honorably toward one another. As Edward Said put it in the context of the Middle East peace process, "The beginning is to develop something entirely missing from both Israeli and Palestinian realities today: the idea and practice of citizenship, not of ethnic or racial community, as the main vehicle for coexistence."

In his 1994 inaugural address, Nelson Mandela envisioned a similar freedom through civility: "As we are liberated from our own fear, our presence automatically liberates others." Though neither hope has yet come to be, in concert they provide a blueprint for a world in which evil can be, if not exterminated, at least deprived of rocks under which to hide, and in which citizens share moral responsibility rather than shrug it away -- a worthy dream, certainly, and one demonstrably closer to realization.

At present, the retrospective accounting fostered by truth commissions seems to offer our best hope. A partial justice, yes. A contingent justice, yes. But given the limitations of great-power maneuvering, the general continuity between one regime and the next and the very real limitations of the human heart, it's probably the best justice this world can hope to obtain anytime soon.

By Jesse Berrett

Jesse Berrett is a historian and critic in San Francisco.

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