ICTY case management

I see from a piece by Marlise Simons in the NYT today that Theodor Meron, the President of the Internatinal Criminal Tribunal for former Yugoslavia, and the prosecutors there, have started trying to speed things by organizing a lot more plea bargains than previously.
This is in line with the more expedited case management at ICTY and its sister-court for rwanda, ICTR that the US has been urging for a while. Simons’ piece notes that ICTY has finished trying 40 people already and has 27 others “preparing for trial”. It makes some sense to me, as the trials at the ICTs are incredibly expensive and long-drawn-out.
I have a piece coming out in Boston Review soon about the ICTR, which goes into some of these same issues of cost and case management. (Also, of relevance to the situation inside Rwanda.) At ICTR, the “record” on number of cases completed is far worse– around 12 to date, only. But at least at ICTR, the Prosecutors started out with a more well-thought-out strategy of focusing on the “big fish” and not letting the court’s time and resources get distracted into going after small fry, which is how ICTY started out.
Also, at ICTR, they probably got their hands on a greater proportion of the real top people they were going after than they did at ICTY. There, most notably, Mladic and Karadzic are still running loose…
What does all this actually achieve, for the peoples of Rwanda and former Yugoslavia, though? That’s what I’m trying to investigate– well, with particular reference to ICTR. I do understand that at the level of “global” policy, these courts are establishing an impressive new body of case law on matter dealing with atrocities, etc., etc. (And providing a lot of well-paid jobs for a small coterie of international lawyers.)
But at the end of the day, law is supposed to serve people, not the other way round. Have the $1 billion or so that’s gone into ICTY and more-than-$500 million that’s gone into ICTR actually been well spent? Have these two projects contributed to strengthening national reconciliation in those societies and ending the previous cycles of violence?
I think “the jury’s still out” on those questions. (Not that ICTY and ICTR even have juries, anyway.)
But amidst the general enthusiasm for war-crimes courts that most people in the human-rights movement have gotten swept up by in recent years, it’s worth remembering that amnesties and a spirit of forgiveness have often actually, historically, played a central role in building a general climate of peacefulness and reconciliation, and thus bringing the commission of acts of atrocious violence to and end. That is–or should be–a goal of the human rights movement, too!

Tragedies, tragedies

I was stunned by yesterday’s bombing of the UN HQ in Baghdad. Why the UN? Why Sergio Vieira de Mello, and so many other members of his team?
I was relieved to learn this morning that our dear friend Ghassan Salameh, now working as the UN mission’s top political advisor in Baghdad, managed to survive. He was described in a story in Lebanon’s Daily Star this morning as pretty distraught over the death of his friend and boss de Mello, and said he’d spent the past four hours scrabbling through the rubble looking for survivors.
Another massive bombing on Jerusalem’s No.2 bus yesterday, as well. When I see the footage of these events, wherever they take place, I remember what it’s like to experience the immediate aftermath of such an attack. Body parts flung into unlikely places. Screams of anguish. Dust and rubble. A universe turned upside down. And then, the enduring sense of loss and of anguish.
International humanitarian law tries, quite rightly, to afford special protections to civilians (and to former combatants who are currently hors de combat.) That distinction is at the heart of the Geneva Conventions and all the rest of international humanitarian law. When you reflect on such horrifying actions as those that created yesterday’s carnage in Baghdad or Jerusalem, you see why such protections are particularly valuable, and why the standard of working hard and actively to avoid harm to noncombatants has to be a vital value for our world.
People who are combatants have taken a special vow when they entered the military. Their special status allows them to kill (people who are other combatants), with impunity. But it also means they accept the risks of being killed or wounded in the line of duty. Civilians have taken no such vow.
These two events were, it seems to me, the result of deliberate actions, designed, planned, and executed by sentient human beings. And these actions aimed deliberately at bringing death and mayhem to noncombatants.
We can, and should, discuss the role of intentionality in all this. Is death as a result of the intention of the perpetrator any qualitatively different– for the victim, for her survivors, for the rest of society–than death by as a result of the perpetrator’s reckless or even wilfull inattention?
After all, many more deaths worldwide are caused through the reckless inattention of decisionmakers who in many cases would not even see themselves as perpetrators of wrongdoing than are caused through the perpetrators’ focused intention.
But there is something about the intentional infliction of harm that I, and I suspect most other people, find particularly revolting. The intentional harm-causer will, after all, fine-tune his actions precisely so as to cause the maximum of harm. (I think of the driver of the cement-mixer in Baghdad carefully easing his explosive-packed vehicle into the right place to cause the maximum death and destruction.) The reckless harm-causer, by contrast, may adjust his actions to minimize harm if the possibility of harm is brought to his attention. The person whom I would describe as the wilfully inattentive harm-causer lies somewhere between those two…
But regardless of the role of intentionality, the proscription against causing harm to civilians has to be stressed again and again.
These two bombings have a clear potential to radically change the course of events in the Middle East, and throughout the world. They bring us several steps closer to the worldwide clash between militant Muslims and the rest of the world that is, I believe, one of the main goals of their perpetrators.
I deeply, deeply do not want this clash to develop further. If it does, the main casualties will be caused not amongst the rich, comfortable segment of global society, but amidst the poor and downtrodden, the communities where people’s social and economic situations have already been chronically troubled for decades, and where inter-group hatreds that are pursued under the banner of values that are claimed to be “religious” can cause almost unimaginable harm.
Think of much of the Third World being transformed into Lebanon. While the arms dealers and other chaos merchants of the comfortable world rake in their tidy profit.
Can we avoid this outcome? Yes, I believe we can. We need urgently to open a dialogue of conscience and of values around the world. The current decade is supposed to be the UN’s Decade of Nonviolence. Now that one of the UN’s finest has been killed by the forces of chaos and confrontation, it would be great if Kofi Annan would lead this new call for conscience and values. It would involve restating some important values on which the UN was founded, like those of national independence (for Iraqis) and of human equality (Israel/Palestine), and of peaceful and speedy resolution of outstanding conflicts…
Along the way, though, we also need to restate the core values of international humanitarian law, and work hard to re-establish the global consensus– in the Middle East, in Africa, and elswhere– that regardless of the nature of the conflict or oppression, causing damage to civilians is always wrong.
I note that this a core value of much of traditional Islamic writing on the constraints to be observed in times of war. We urgently need to initiate a global dialogue with Muslim political activists of all stripes on this issue.


THE NEXUS BETWEEN GENOCIDE AND WAR: Last night, I watched “The Pianist”. Again. The first time was back at the beginning of the month, in Johannesburg. But last night, my spouse brought the video home from the video store. So I decided to sit down and watch it again, with him.
It is a remarkable, gut-wrenching movie. Adrien Brody has such a haunting, haunted face, and plays the expressions on it like a true maestro. The story only occasionally seemed overdone. (A couple of tropes apparently borrowed from other people’s trails of tears: the Gestapo-forcing-the-Jews-to-dance thing; the woman-who-had-to-smother-her-own-baby thing. But who knows? Maybe those were in Szpilman’s original book, and before that, in his life. In which case, forget what I said about tropes.*)
Generally, the movie takes you right along with Vladek as his family is squeezed by the Nazis’ ever-increasing encroachments on their lives and liberties. He loses everyone and everything around him. And he gains– well, he gains an other-worldly personal affect even as the story of what happens to him becomes more and more “fantastickal”. As well as deadly true and truly deadly.
The movie almost takes you inside the experience of being the survivor of a genocide. Of course, as I watched it, I remembered survivors’ narratives that I heard from people I interviewed last year, in Rwanda. In some of the movie’s early scenes, firstly as ever more and more restrictions were placed on Warsaw’s Jews, and then as they were herded into the tight confines of the ghetto, I thought of the current travails of my Palestinian friends…
But the movie also reminded me of something I first started reflecting on some weeks ago: namely, that while hate-inciters and other various assorted sickoes can be found in every society, it seems to be only in the circumstances of an all-out war that such people and grouplets actually get to act out the full sickness of their genocidal ambitions.
I think this feels like a fairly significant insight. Think of Germany, think of Rwanda, think of Saddam’s Anfal campaign. All of them carried out under the “fog of war”.
This is NOT to say, at all, that genocide is “just another one of the things that gets to happen in war.” It is NOT just another “excess” of the war situation. It deserves to be treated seriously, and with deep opprobrium. (There is something in me that says that the twice-over intentionality that is built into all the international-law definitions of genocide may, however, be a bit overblown. The central tragedy of a genocide seems to me to be–as Gerard Prunier remarked in a discussion I had with him in 2001, that it wipes out “everything that might be a vehicle through which a person might hope to leave any personal legacy in the world.” But then, if your entire ethnic or religious or whatever kind of group ends up getting wiped out because of, say, avoidable famine or some such cause, does that feel any different to a victim from being wiped out because someone hates your particular group? I don’t think so. Indeed, you could say that being genocided because of intention pays the target group more heed–even if heed of the most hateful kind–than being genocided out of sheer inattention…)
Be that as it may.
I postulate that the reason for the nexus between genocide and war is because, in time of war, so many of people’s “normal” inhibitions–and primarily, the normal inhibition against killing– have to be suppressed. This then allows sick individuals and grouplets who advocate genocidal, mass killings to gain a much wider and more sympathetic hearing than they could ever get in normal times. Plus, there is all the fear and hysteria of war-time discourse: the frequently exaggerated fears of hostile “fifth columns” whose members–often thought in many people’s minds to be members of a certain rethnic or religious group– need to be rooted out. Etc., etc.
So here’s a simple policy prescription. If this nexus exists, then one very effect way to “prevent” genocide– an obligation that the 1948 Genocide Convention lays on all members of the international community– would be to prevent war.
Tell me what YOU think.