Yesterday I was blogging about Grayling’s book, half unfinished on the floor by my office door. I didn’t put it away because when I do that, I forget what I am doing. I mentioned then that there was another book I had begun at the same time. This is Gary Bass’ Stay the Hand of Vengeance. This one was gathering dust on my treadmill where I had hoped to read more. Neither book nor treadmill have been touched in some weeks.

I picked this book up because I ask a final question in my Crimes against Humanity class about Nuremberg. In a quotation I share, Overy (2003) suggests that the choice of defendants was political rather than based on criminal culpability. I ask if it matters.

Bass illuminates what is the theme in most of the answers I receive from students (which is that it does matter) by suggesting that among western nations there is an ideology of legalism which tells us that justice is served by the rule of law imposed through tribunals hearing cases of offenders who commit what have been called “supranational crimes”: crimes which are of an order that they exceed the capacity of individual countries to deal with them.

While Bass suggests that these principles are most often associated with idealist liberal democracies, he also notes that sometimes even these nations fall short of their declared beliefs in law and order:

“First, even liberal states almost never put their own soldiers at risk in order to bring war criminals to book. Second, even liberal states are more likely to seek justice for war crimes committed against their own citizens, not against innocent foreigners….The war crimes policy of liberal states is a push-and-pull of idealism and selfishness” (p. eight)

Realists, argues Bass (2000), propose that tribunals are instances of victor’s justice and no more. However, Bass refutes realism and while acknowledging that “there is no such thing as appropriate punishment for the massacres at Srebrenica or Djakovica but Bass suggests that the phrase “victor’s justice” is not helpful because of how important it is which victor it is, and what justice is upheld. In fact this may be the importance of these tribunals in terms of the performance of justice-seeking they proffer to the watching world, to the victims and to those who are defendants. Bass observes that liberal states behave entirely differently when they “take up the cause of international justice, treating their humbled foes in a way utterly divorced from the methods practiced by illiberal states” (p.18) One of the chief reasons for this is that leadership in liberal states is constrained by domestic norms which are often not designed to reckon with crimes of this enormity.

And so I see how my question in the Final spawned a whole class which would examine the conflict between Human Rights and Crime Control. For this is the cleft stick that liberal democracies fall into (and interestingly these comprise most of the key players in international affairs): if we cannot have both process and outcome then which do we prioritise? Bass argues that we sacrifice “just” outcomes for process; risking failure, acquittal and lesser sentences by holding trials – but from his introduction it is not clear whether he concludes…conclusively…that this is morally wrong.

I have only just made a start on the second chapter, a discussion of justice seeking with Napoleon. So I think I may start the book again. But not immediately. First, I want to reread Power’s chapter on Srebrenica (Power, 2002).

Reference

Bass, G.J. (2000) Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton University Press.

Overy, R (2003).  The Nuremberg Trials: International Law in the Making. In P.Sands (Ed.) From Nuremberg to the Hague: The Future of International Criminal Justice. Cambridge, UK: Cambridge University Press. 

Power, S. (2002) A Problem from Hell: America and the Age of Genocide. New York, NY: HarperCollins.