ICTY: book by John Hagan

This is a quick note about a book I’d been eagerly looking forward to reading
in connection with my
“Violence and its Legacies” project, John Hagan’s Justice in the Balkans: Prosecuting War Crimes in
the Hague Tribunal. Hagan is a professor of sociology and law at
both Northwestern University in Chicago and the University of Toronto.

Personally, I have found that the most useful disciplinary lenses for looking
at the new brand of international war-crimes courts are those of political
‘science’, legal theory, anthropology, conflict resolution, discourse ethics,
and history. I was interested to see what a sociologist might come
up with.

There was a little bit of slightly mystifying jargon. Something about
“loosely coupled systems”, and a couple other things. Mainly, Hagan
seemed to have been doing lots of interviewing of people working in ICTY
(which he slightly arrogantly refers to as ICT, as though there were not
another ICT also in existence: ICTR.) Correction. He actually
seems to have focused nearly on his research on people in the Office of the
Prosecutor (OTP) at ICTY, in line with a long tradition in US history
of seeing prosecutors as heroic agents of history… Think Teddy
Roosevelt, Henry Stimson, etc etc…

In US views of Nuremberg, it is nearly always the (American) prosecutor there,
Robert Jackson, who is portrayed as the hero of the whole episode, despite
what many contemporary accounts describe as some notably lack-lustre courtroom
performances (he was considerably outshone in that regard by his much smarter
Biritish counterpart, for example.)

To my mind though –and following the judgment of that excellent historian
Bradley F. Smith– it was the judges at Nuremberg who emerged the
heroes of the venture, if heroes there were. In his great book,
Reaching Judgment at Nuremberg Smith wrote (pp.303-6 passim):

[T]The Allied governments and the prosecutors prevented an anarchic
bloodbath, though had they been able to work their will, Nuremberg might
well have been a trial pro forma. The top leaders would have been quickly
condemned and the declarations of criminality against the six organizations
would have been confirmed, establishing a procedure whereby hundreds of thousands
of people might have been punished. The precedent of wartime losers
being punished through mass purge trials would surely have become a major
obstacle to ending wars once they broke out…

It should ever live to the glory of the Nuremberg judges that they took a
major step toward dissipating this danger…

[T]he Nuremberg bench graphically demonstrated that such war crimes tribunals
have little of value to offer in dealing with transitions from war to peace.
The Nuremberg Court [i.e. the Bench–HC] performed its real service
by remedying the most dangerous defects of Allied war crimes policy. But
even though this was a self-liquidating achievement that, one hopes, will
not have to be performed again [!], the Court did it so skilfully that most
of the public is unaware that it was done at all. What has chiefly
remained in the public mind about Nuremberg and the Nazi regime is not the
cautious and qualified conclusions of the Judgment, but the sweeping and
often inaccurate charges made by the prosecution…

It is in part because of the overwhelming public relations triumph of the
prosecution that the moderating role of the Court is difficult for some people
to accept.

Sorry for that little diversion into Brad Smith’s conclusions
there. I just enjoyed reading them again. My main point here:
Hagan, in this new book I’ve just been reading, follows in a long tradition
of Americans who have “fallen for” the public-relations efforts of prosecutors…

(When I went to ICTR in Arusha, I definitely wanted to interview judges,
and succeeded in getting lengthy interviews with two of them. I also
interviewed two prosecutors–including as-of-then OTP head Carla Del Ponte–and
one defense attorney, as well as various other key people working in the
court’s administration.)

Hagan’s study has what I judge to be a fairly myopic perspective. He
devotes a lot of attention to the social background of the ICTY OTP professionals
he interviewed, and to the question of how their work their has affected
their worldview. So bound up with the cult of “the prosecutor
as hero” does he seem to be that he pays scant attention to the kinds of
question that I’ve been looking at, namely, do these courts actually help
post-atrocity societies to move constructively beyond the multiple traumas
inflicted during the era of atrocities and build a new society in which the
violence of the past is not iterated?

Anyway, given those tight limitations on what it was that he was actually
looking at, Hagan’s book does disclose a couple of nuggets of information
that seem interesting and relevant for my own project. He has some
interesting material on Louise Arbour, who’s the only one of the three ICTY
Chief Prosecutors whom I have NOT interviewed. (And of course, now
that CDP has been pulled off ICTR, there’s a new prosecutor there whom I
have never met, as well.)

But I think the most interesting thing I got out of the book was a degree
of confirmation of a serious accusation that many ethnic Serbs and others
have made against ICTY, namely that so many ICTY employees are “Anglo-American”.

This is an interesting and slightly complex issue. In an era of a big
US-UK-Australian global war coalition, it is also one of huge political significance
(Hagan, slightly engagingly, writes as though he is totally unaware of those
political dimensions to his study.)

In Ch. 3, he has a section called “The Anglo-Americans are coming”. Anglo-Americans,
you have to understand, is a fairly broad term, since he uses it ,as far
as I can see, to refer to everyone who is a citizen of a majority-white country
that has a common-law legal system. Thus, it includes, crucially, both
Richard Goldstone of South Africa, the first Chief Prosecutor, and Graham
Blewitt of Australia, the longstanding Deputy Prosecutor. Hagan reports
how, when Blewitt arrived on the job in February 1994, he started to fill
the 126 positions he had been allocated: he set about calling people whom
he knew. No mention at all is made of Blewitt having posted any
listing of these job openings publicly!

I think public job posting was introduced later. But those seminal
first positions were all, it seems, filled through friends and friends of
friends of Blewitt’s. Hagan descibes how Blewitt called up some Australian
buddies and also “pursued the transnational network he knew from his work
on Nazi war crimes in England, Scotland, and Canada…. Another source
of Anglo-American recruits emerged when the United States sent twenty-two
lawyers and investigators to work in the OTP.”(p.64)

Hagan quotes Blewitt as recalling that, “There was a nucleus of about
12 people that I knew and they arrived here in fairly quick order, and those
people together with the American secondees gave me about 40 people upon
which to get started.”(65)

By the time we get to Chapter 4, there’s a section called “Anglo-American
Dominance”. In this section, he builds on some survey research he
has conducted amongst OTP employees to conclude about the Anglo-Americans
that:

[I]t is clear that they form the dominant recognizable elite of
the OTP. [Emphais there by HC]. As we will see below, the United States also is by far the
largest national financial supporter of the ICT[Y], having made throughout
its history more than 40 percent of the voluntary contributions, with britain
the only other country contributing more than 10 percent. By this account,
the Anglo-American countries are the source of the most financial support
as well as of the employees who work the hardest and in turn are given the
most autonomy and authority and paid the highest salaries at the tribunal.
(p.95)

I should note that the Benches at ICTY and ICTR as well as their joint Appeals Court are considerably less heavily dominated by “Anglo-Americans” than the ICTY OTP is. Mostly, this is a result of the fact that the judges have to be elected through an extremely complex process of elections carried out by all the members of the UN General Assembly. That does lead to a greater degree of national/cultural diversity among the judges– though given the political nature of that process, notably not to an increased level of competence in some cases.

And regarding the OTP at ICTR, there, there are other issues–the presence or absence of Africans in the offices–that are highly controversial there, as well as the question of Anglophonia/Francophonia, which is related to but not the same as the issue of ‘Anglo-Americans’.