Rush to closure: Lessons of the tadic judgment

Michigan Law Review

Volumn 96, Issue 7, 1998, Pages 2031-2112

  Alvarez, Jose E ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 0039186722     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290059     Document Type: Article

References (427)

1. Quoted in TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR 45 (1992).
2. The war crimes tribunals for both the former Yugoslavia and Rwanda were established by the United Nations (U.N.) Security Council under its Chapter VII powers. See S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (1993) [hereinafter ICTY Statute]; Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N. SCOR, 48th Sess., U.N. Doc. S/25704 (1993) [hereinafter Report of the Secretary-General] (establishing the tribunal for the former Yugoslavia and containing that tribunal's statute); 3 S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/RES/955 (1994) [hereinafter ICTR Statute] (establishing the tribunal for Rwanda and containing that tribunal's statute). The tribunal for the former Yugoslavia was established in The Hague, the Netherlands, and the tribunal for Rwanda in Arusha, Tanzania. This author uses "war crimes" to describe the offenses involved in the Rwandan and Balkan prosecutions even though, as is clear from the statutes of these tribunals, the jurisdiction of each extends beyond violations of the laws and customs of war.
3. This is a distillation of the goals most frequently articulated by the diplomats who established these tribunals and the relevant epistemic community of international lawyers. For various views, see, for example, Provisional Verbatim Record of the Three Thousand Two Hundred and Seventeenth Meeting, U.N. SCOR, 48th Sess., 3217th mtg. at 12-14, U.N. Doc. S/ PV.3217 (1993) (statement of Mrs. Albright, United States);
4. Provisional Verbatim Record of the Three Thousand One Hundred and Seventy-Fifth Meeting, U.N. SCOR, 48th Sess., 3175th mtg. at 8, 27, U.N. Doc. S/PV.3175 (1993) (statement of Mr. Mérimée, France)
5. STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW 135-36 (1997);
6. MICHAEL P. SCHARF, BALKAN JUSTICE 214-28 (1997);
7. Payam Akhavan, Justice and Reconciliation in the Great Lakes Region of Africa: The Contribution of the International Criminal Tribunal for Rwanda, 7 DUKE J. COMP. & INTL. L. 325, 336-43 (1997);
8. Payam Akhavan, Punishing War Crimes in the Former Yugoslavia: A Critical Juncture for the New World Order, 15 HUM. RTS. Q. 262 (1993);
9. Richard J. Goldstone, Conference Luncheon Address, Address Before the Minnesota Advocates for Human Rights (Mar. 23, 1996), in 7 TRANSNATL. L. & CONTEMP. PROBS. 1 (1997);
10. Theodor Meron, Answering for War Crimes, FOREIGN AFF., Jan.-Feb. 1997, at 2, 6-7
11. [hereinafter Meron, Answering for War Crimes];
12. Theodor Meron, The Case for War Crimes Trials in Yugoslavia, FOREIGN AFF., Summer 1993, at 122
13. [hereinafter Meron, The Case for War Crimes Trials];
14. Prosecuting and Defending Violations of Genocide and Humanitarian Law: The International Tribunal for the Former Yugoslavia, 88 ASIL PROC. 239 (1994)
15. [hereinafter Prosecuting and Defending Violations];
16. Naomi Roht-Arriaza, Punishment, Redress, and Pardon: Theoretical and Psychological Approaches, in IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAW AND PRACTICE 13, 13-21 (Naomi Roht-Arriaza ed., 1995)
17. [hereinafter IMPUNITY AND HUMAN RIGHTS];
18. Minna Schrag, The Yugoslav War Crimes Tribunal: An Interim Assessment, 7 TRANSNATL. L. & CONTEMP. PROBS. 16, 19-20 (1997);
19. Daphna Shraga & Ralph Zacklin, The International Criminal Tribunal for Rwanda, 7 EUR. J. INTL. L. 501, 502-04 (1996);
20. see also W. Michael Reisman, Institutions and Practices for Restoring and Maintaining Public Order, 6 DUKE J. COMP. & INTL. L. 175 (1995) (discussing seven fundamental goals of legal systems designed to restore and maintain public order).
21. Opinion and Judgment, Prosecutor v. Tadii, Case No. IT-94-1-T (Trial Chamber, Intl. Trib. for the Prosecution of Persons Responsible for Serious Violations of Intl. Humanitarian Law Committed in the Territory of Former Yugo. since 1991, May 7, 1997) [hereinafter Tadić Judgment].
22. Mark Osiel, Ever Again: Legal Remembrance of Administrative Massacre, 144 U. PA. L. REV. 463, 486-88 (1995).
23. MARK OSIEL, MASS ATROCITY, COLLECTIVE MEMORY, AND THE LAW 22, 24 (1997)
24. (citing EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY (George Simpson trans., 1964)). This is an extended version of Osiel's article, Ever Again. See Osiel, supra note 5. Osiel defines "administrative massacre[s]" as "large-scale violation[s] of basic human rights to life and liberty by the central state in a systematic and organized fashion, often against its own citizens, generally in a climate of war - civil or international, real or imagined." OSIEL, supra, at 9. In both book and article, Osiel limits his discussion of closure to the role of judges in evoking collective memory in such cases. Osiel does not address the significance of closure with respect to the other goals of such trials, and he does not apply his insights to the ongoing international prosecutions involving the Balkans and Rwanda.
25. Meron, Answering for War Crimes, supra note 3, at 2-3;
26. accord Kenneth Roth, Why Justice Needs NATO, THE NATION, Sept. 22, 1997, at 21.
27. Oscar Schachter, The Invisible College of International Lawyers, 72 NW. U. L. REV. 217 (1977).
28. Mary Ann Tétreault, Justice for All: Wartime Rape and Women's Human Rights, 3 GLOBAL GOVERNANCE 197 (1997) (quoting former Chief Prosecutor in the Balkan Tribunal Richard Goldstone);
29. see also Walter Gary Sharp, Sr., International Obligations to Search for and Arrest War Criminals: Government Failure in the Former Yugoslavia?, 7 DUKE J. COMP. & INTL. L. 411, 454 (1997) (quoting John Shattuck, then the top human rights officer at the U.S. Department of State).
30. James Vescovi, The Search for Justice in the Former Yugoslavia and Beyond: An Interview with Minna Schrag '75, COLUM. L. SCH. REP., Autumn 1996, at 27.
31. See Roht-Arriaza, supra note 3, at 16-21.
32. See id. at 19-21 (noting also how the mere verbalization of victimization serves cathartic psychological and therapeutic ends).
33. Naomi Roht-Arriaza, Introduction to IMPUNITY AND HUMAN RIGHTS, supra note 3, at 3, 7. Professor Roht-Arriaza thus argues, for example, that investigations and trials, because they reveal the extent of repression, restore the reputation of innocent victims, constitute an official condemnation of state-sanctioned abuses, make repetition of past mistakes less likely, and permit societies to redefine themselves in light of real and not falsified history. See id. at 7-8 (noting how war crimes frequently demonstrate a "struggle for the control of history" and arguing that criminal investigations "play[ ] a central role in a society's redefinition of itself and do not allow a former dictatorship's version of history "to be perpetuated in the military academies or in textbooks").
34. See OSIEL, supra note 6, at 22.
35. See OSIEL, supra note 6, at 41-48.
36. Readers who have little interest in the Tadié judgment as such or who have, from the outset, grave doubts about the viability of "closure" may wish to proceed directly to Part IV.
37. These are further considered infra notes 238-45 and accompanying text.
38. Roht-Arriaza, supra note 13, at 5 (arguing that 50 years after Nuremberg, treaty and case law developments in humanitarian law have shaped the minimum requirements for compliance and have helped to settle questions regarding investigation, prosecution, and compensation); see also KARINE LESCURE & FLORENCE TRINTIGNAC, INTERNATIONAL JUSTICE FOR THE FORMER YUGOSLAVIA: THE WORKING OF THE INTERNATIONAL CRIMINAL TRIBUNAL OF THE HAGUE 17-31 (1996);
39. Leila Sadat Wexler, The Proposed Permanent International Criminal Court: An Appraisal, 29 CORNELL INTL. L.J. 665, 707-10 (1996). There is, however, an unresolved tension between the arguments for primacy of international fora - when these are available - and other arguments that national authorities have a duty to prosecute some international crimes under international law.
40. See, e.g., Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991) (arguing that an international legal duty to prosecute ought to constrain governments' resort to immunity);
41. Naomi Roht-Arriaza, Sources in International Treaties of an Obligation to Investigate, Prosecute and Provide Redress, in IMPUNITY AND HUMAN RIGHTS, supra note 3, at 24, 24-38 (discussing sources of international law that suggest an obligation to investigate, prosecute, or provide redress). It seems that a national authority's ostensible duty to prosecute does not result in any ostensible right to retain exclusive or primary jurisdiction over such prosecutions, at least not in the case of the former Yugoslavia or Rwanda.
42. After all, if Iraq's unwillingness to permit weapons inspections, Libya's failure to transfer alleged terrorists to national courts, or the Haitian coup leaders' failure to abide by the results of a U.N.-supervised election each justified a forceful Security Council response, why not the continued impunity of alleged war criminals in the Balkans or Rwanda which has, at a minimum, prompted destabilizing waves of refugees across international borders? For the Yugoslav tribunal's response to a challenge to its establishment, see Decision on the Defence Motion on Jurisdiction, Prosecutor v. Tadić, Case No. IT-94-I-T (Trial Chamber, Intl. Trib. for the Prosecution of Persons Responsible for Serious Violations of Intl. Humanitarian Law Committed in the Territory of Former Yugo. since 1991, Aug. 10, 1995) [hereinafter Decision on Defence Motion on Jurisdiction];
43. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić, Case No. IT-94-1-AR72 (App. Chamber, Intl. Trib. for the Prosecution of Persons Responsible for Serious Violations of Intl. Humanitarian Law Committed in the Territory of Former Yugo. since 1991, Oct. 2, 1995) [hereinafter Decision on Defence Motion for Interlocutory Appeal].
44. See generally MAX WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION (A.M. Henderson & Talcott Parsons trans., Free Press 1964) (1947). As Talcott Parsons notes in his famous introduction to this work, Weber's concept of an "ideal type" consists of an "abstract" and "generalized rubric within which an indefinite number of particular cases may be classified." Talcott Parsons, Introduction to id. at 13.
45. For a characteristic attempt to link justice and peace, see, for example, Richard J. Goldstone, Justice as a Tool for Peace-Making: Truth Commissions and International Criminal Tribunals, 28 N.Y.U. J. INTL. L. & POL. 485, 486-90 (1996). The presumed link between war crimes prosecutions and securing international peace goes back, of course, to the Nuremberg trials themselves.
46. See, e.g., DAVID LUBAN, LEGAL MODERNISM 336 (1994) (discussing how Nuremberg was seen as "the trial to end all wars").
47. See, e.g., DAVID LUBAN, supra note 21, at 335-91; SCHARF, supra note 3, at 3-17; TAYLOR, supra note 1; Kevin R. Chaney, Pitfalls and Imperatives: Applying the Lessons of Nuremberg to the Yugoslav War Crimes Trials, 14 DICK. J. INTL. L. 57 (1995);
48. Symposium, 1945-1995: Critical Perspectives on the Nuremberg Trials and State Accountability, 12 N.Y.L. SCH. J. HUM. RTS. 453, 453-544 (1996).
49. These include complaints that these tribunals' rules and bench and prosecution teams were dominated by lawyers from the United States and arrogant notions of "American exceptionalism;" that trials were marred by the application of double standards since no charges were brought against the allies despite evidence that they also had violated international humanitarian law; and that the Allies' noble goals were compromised from the outset since the very day that they signed the London Charter to establish the Nuremberg tribunal the United States dropped its second nuclear bomb on Nagasaki. See, e.g., Gerry J. Simpson, War Crimes: A Critical Introduction, in THE LAW OF WAR CRIMES 1, 4 (Timothy L.H. McCormack & Gerry J. Simpson eds., 1997).
50. These include accusations that defendants were convicted in absentia, while others encountered trial by ambush - i.e., an expedited criminal process using unfamiliar rules and based on documentary evidence primarily within the control of the prosecution with defense lawyers accorded minimal time for preparation. Others have questioned the imposition of ex post facto criminal liability, arguing that defendants were charged with newly minted international crimes, including "aggression" - premised dubiously on violations of the Kellogg-Briand Pact - "crimes against humanity," and other novel offenses having little basis in many domestic legal systems, such as conspiracy. See, e.g., id. at 11-16; LUBAN, supra note 21, at 349-52, 360-62. Even graver charges of overly hasty, and perhaps even racist, judgments have been leveled against the Tokyo trials. See, e.g., Dissenting Opinion of J. Pal, in 21 THE TOKYO WAR CRIMES TRIAL 1-21 (R. Pritchard & S. Zaide eds., 1981);
51. Ann Marie Prévost, Race and War Crimes: The 1945 War Crimes Trial of General Tomoyuki Yamashita, 14 HUM. RTS. Q. 303 (1992) (arguing that Yamashita's trial, conducted in the immediate wake of Japanese aggression, was thoroughly riddled with violations of fair process and tainted by racism);
52. see also Elizabeth S. Kopelman, Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial, 23 N.Y.U. J. INTL. L. & POL. 373 (1991).
53. See, e.g., Osiel, supra note 5, at 533-36. But later trials by the Allies under the more expansive terms of Law No. 10 of the Control Council for Germany went further. See RATNER & ABRAMS, supra note 3, at 47, 50.
54. For an argument that it also rendered less evident how the Nazis were able to bureaucratie their final solution, see, for example, LUBAN, supra note 21, at 365-74. A more balanced portrayal of the Holocaust, it is said, has only emerged thanks to the work of later historians and the trial records of proceedings more sensitive to the needs of victims, such as Israel's prosecution of Eichmann. Attorney General v. Eichmann, 36 I.L.R. 5 (Isr. D.C. (Jm.) 1961), 36 I.L.R. 277 (Isr. S. Ct. 1962). These later accounts, in turn, have altered modern-day recollections of the Nuremberg trials such that today those proceedings are often cited as an affirmation of the horrors of crimes against humanity and not aggressive war.
55. See In re Yamashita, 327 U.S. 1 (1946); Prévost, supra note 24, at 305; see also M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11, 36-37 (1997).
56. For a defense of the Yamashita case, see Major William H. Parks, Command Responsibility for War Crimes, 62 MIL. L. REV. 1, 22-38 (1973).
57. See generally SCHARF, supra note 3, at 69-73; Meron, The Case for War Crimes Trials, supra note 3.
58. See Decision on Defence Motion for Interlocutory Appeal, supra note 19, ¶ 44. As noted by the judges in the Tadić case, by securing the cooperation of the U.N. Secretariat as well as the General Assembly, the tribunals' creators drew from the legitimacy of the independent international civil service as well as the representativeness of the world's foremost deliberative body.
59. See, e.g., ICTR Statute, supra note 2, art. 20 (providing for "rights of the accused" comparable to those in article 14 of the International Covenant on Civil and Political Rights);
60. ICTY Statute, supra note 2, art. 21 (same).
61. But note that the tribunals also borrowed from the civil law's tradition and permitted appeals by the prosecution, a concept that has drawn criticism from those within the common law tradition. See Michael P. Scharf, A Critique of the Yugoslavia War Crimes Tribunal, 25 DENV. J. INTL. L. & POLY. 305, 307 (1997) (suggesting that this "infringe[s] the accused's interest in finality which underlies the double jeopardy principle"). The drafters of the rules also departed significantly from common law traditions by permitting the use of hearsay evidence, by granting the tribunal the power to order the production of evidence, and by banning plea bargaining and prosecutorial grants of immunity. See SCHARF, supra note 3, at 67.
62. ICTY Statute, supra note 2, ¶ 34. For the approach taken by the Rwanda tribunal, see infra notes 171-75 and accompanying text.
63. But see Intl. Trib. for the Prosecution of Persons Responsible for Serious Violations of Intl. Humanitarian Law Committed in the Territory of the Former Yugo. since 1991, RULES OF PROCEDURE AND EVIDENCE, rule 61, U.N. Doc. IT/32 (1994), amended by U.N. Doc. IT/ 32/Rev. 1 (1994), U.N. Doc. IT/32/Rev. 2 (1994), U.N. Doc. IT/32/Rev. 3 (1995), U.N. Doc. IT/32/Rev. 4 (1995), U.N. Doc. IT/32/Rev. 5 (1995), U.N. Doc. IT/32/Rev. 6 (1995), U.N. Doc. IT/32/Rev. 7 (1996), U.N. Doc. IT/32/Rev. 8 (1996), U.N. Doc. IT/32/Rev. 9 (1996), U.N. Doc. IT/32/Rev. 10 (1996), U.N. Doc. IT/32/Rev. 11 (1997), U.N. Doc. IT/32/Rev. 12 (1997) (providing for public indictments in cases where arrest warrants are not executed) [hereinafter ICTY Rules]. This article is based on the 1995 revision, U.N. Doc. IT/32/Rev. 3.
64. For rules requiring the restitution of property and compensation to victims within the Rwanda Tribunal, see ICTR Statute, supra note 2, art. 23;
65. and Intl. Crim. Trib. for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of Intl. Humanitarian Law Committed in the Territory of Rwanda, RULES OF PROCEDURE AND EVIDENCE, rules 88(B), 105-06, U.N. Doc. ITR/3/Rev. 1 (1995).
66. Perhaps with the critique of Nuremberg's flawed history in mind, the prosecutors in the first trial at the Yugoslav tribunal spent what seemed to some courtroom observers an inordinate amount of time at the outset of the proceedings placing their case against Tadić within the broader context of the recent history of the former Yugoslavia through testimony on nationalist attitudes and their consequences, presented through an academic historian and fourteen policy witnesses, none of whom had been eyewitnesses to any of the crimes alleged in the indictment. See SCHARF, supra note 3, at 120-37. As Scharf notes, for the first five weeks of the Tadić trial, the prosecutors focused on proving the systematic and widespread nature of ethnic cleansing without presenting any testimony as to the alleged crimes committed by the defendant. See id. at 137.
67. Indeed, some hope that international criminal proceedings will help promote democratic transitions. See CARLOS SANTIAGO NINO, RADICAL EVIL ON TRIAL 127-34 (1996); OSIEL, supra note 6, at 1.
68. The achievement of closure for victims, for defendants, and for society as a whole is, of course, commonly associated with ordinary criminal trials in the United States. Cf. Frank Rich, Rush to Closure, N.Y. TIMES, June 5, 1997, at A21 (ridiculing the notion that the trial of Timothy McVeigh, convicted of bombing the Murrah Federal Building in Oklahoma City in 1995, brings closure to concerns with respect to "right-wing fringe groups"). The headline for Mr. Rich's column inspired the title of this article.
69. See Simpson, supra note 23, at 16-17.
70. In July 1997, in a change from its preexisting policy, NATO forces in Bosnia actively began to seek out for arrest indicted war crimes suspects. This change in policy yielded some arrests but also retaliatory attacks and threats by angered Bosnian Serb authorities. See Mike O'Connor, Arrests by NATO Worry Bosnian Serb Leaders, N.Y. TIMES, July 14, 1997, at A4;
71. Mike O'Connor, Serbs Threaten Retaliation for War Crime Arrests, U.N. Says, N.Y. TIMES, July 17, 1997, at A6;
72. see also Payam-Roman Akhavan, Justice in the Hague, Peace in the Former Yugoslavia?, 20 HUM. RTS. Q. (forthcoming Nov. 1998) (manuscript at 82-87, on file with author). For a description of NATO's earlier "monitor, but don't touch" policy, see SCHARF, supra note 3, at 89.
73. See, e.g., CENTER FOR INTL. PROGRAMS, UNIV. OF DAYTON, BRINGING WAR CRIMINALS TO JUSTICE (1997) [hereinafter BRINGING WAR CRIMINALS TO JUSTICE];
74. Meron, The Case for War Crimes Trials, supra note 3, at 134; Roth, supra note 7.
75. See Akhavan, supra note 38 (manuscript at 94). Thus, an ad, placed in The New York Times by the "Coalition for International Justice" shortly after NATO troops arrested one of those indicted by the Balkan tribunal, urged that U.S.-led NATO forces meet their "moral obligations" to bring the rest of those indicted to justice. [S]o long as war criminals are at large and justice is not done, the wounds of war cannot heal, refugees cannot return to their homes, and reconciliation, lasting peace, and a civil society cannot be achieved in Bosnia. A successful exit for U.S. troops will not be possible, and their many good works will have been wasted, if they leave behind a country in which persons indicted for war crimes continue to wield significant power and make a mockery of the rule of law.
76. Coalition for Intl. Justice, Advertisement, Mr. President: Order the Arrest of War Criminals in Bosnia Now!, N.Y. TIMES, July 15, 1997, at A8. The ad concludes: Mr. President, at the dedication of the Holocaust Museum you reiterated the pledge "never again" to permit genocide. If the War Crimes Tribunal and the quest for peace in Bosnia should fail because U.S.-led NATO troops are unwilling to apprehend indicted perpetrators of crimes against humanity, the civilized world will have lost the opportunity to restore some credence to this tarnished pledge. We appeal to you not to allow this to happen.
77. Mr. President: Order the Arrest of War Criminals in Bosnia Now!, N.Y. TIMES, 1997, A8. Id. Among the groups in this coalition were Amnesty International, USA, and Human Rights Watch. See also Roth, supra note 7 (arguing for the use of NATO troops to arrest indicted war criminals). Indeed, some international lawyers contend that U.S. troops are legally obligated to arrest war criminals in the Balkans.
78. See, e.g., John F. Hector, Why US Troops Must Arrest War Criminals, A.B.A. NATL. SEC. L. REP., Summer 1997, at 7.
79. But see David P. Forsythe, Politics and the International Tribunal for the Former Yugoslavia, 5 CRIM. L.F. 401 (1994);
80. Robert M. Hayden, Schindler's Fate: Genocide, Ethnic Cleansing, and Population Transfers, 55 SLAVIC REV. 727, 742-43 (1996) [hereinafter Hayden, Schindler's Fate];
81. Robert M. Hayden, Hayden's Reply, 55 SLAVIC REV. 767, 771-72 (1996); [hereinafter Hayden, Reply];
82. Alfred P. Rubin, Dayton, Bosnia, and the Limits of Law, NATL. INTEREST, Winter 1996-97, at 41.
83. For a survey of the necessary adaptations to extradition, see, for example, Kenneth S. Gallant, Securing the Presence of Defendants before the International Tribunal for the Former Yugoslavia: Breaking with Extradition, 5 CRIM. L.F. 557 (1994).
84. RATNER & ABRAMS, supra note 3, at 185.
85. Although Tadić was acquitted of 20 counts, including all nine charges of murder, 11 of these acquittals stemmed from the decision by two of the three judges that "grave breaches" under Article 2 of the Fourth Geneva Convention had not been shown because the prosecution had failed to prove to the tribunal's satisfaction that the conflict in Bosnia was, after May 19, 1992, when all of Tadić's alleged offenses had occurred, an "international conflict." Tadić Judgment, supra note 4, ¶¶ 607-08. The majority found that the withdrawal of the Yugoslav National Army at that time put the onus on the prosecution to prove Serbian "effective control" over any offenses committed thereafter by forces of the Republic of Srpska (VRS).
86. Tadić Judgment, supra note 4, ¶¶ 584-608. They concluded that the VRS needed to be shown to be essentially agents of the Serbian army in order for their victims to be "protected persons" under the Fourth Geneva Convention and that the prosecution had not met this evidentiary burden.
87. Tadić Judgment, supra note 4, ¶¶ 607-08.
88. Judge McDonald, from the United States, dissented, indicating that she doubted whether "effective control" needed to be shown and finding that even if that needed to be shown, the prosecution had met this burden. Opinion and Judgment, Separate and Dissenting Opinion of Judge McDonald Regarding the Applicability of Art. 2 of the Statute, Prosecutor v. Tadić, Case No. IT-94-1-T, ¶ 4 (Trial Chamber, Intl. Trib. for the Prosecution of Persons Responsible for Serious Violations of Intl. Humanitarian Law Committed in the Territory of Former Yugo. since 1991, May 7, 1997) [hereinafter McDonald Dissent]. As this suggests, the relatively large number of acquittals on the formal charges filed against Tadić is deceptive. In most instances the original indictment had assigned three counts to each separate act or series of acts by the accused: "grave breaches" of the Geneva Conventions, "crimes against humanity" (namely persecution), and violations of the laws and customs of war. Thus, most of the acquittals were based on rulings of law, not fact. Although Tadić was acquitted by the majority of all charges of "grave breaches," many of the same alleged actions led to successful convictions as violations of the laws of war and crimes against humanity. Further, even though Tadić was cleared of all murder charges, the counts under which he was convicted include involvement in the deaths of two Muslim policemen.
89. A charge involving forcible sexual intercourse against a female prisoner, designated as a grave breach of the Geneva Convention, a violation of the laws or customs of war, and a crime against humanity, was withdrawn before trial because the victim was unwilling to testify.
90. Tadić was sentenced to a total of 97 years for the 11 separate convictions, but each of these sentences was to be served concurrently, and the longest is for 20 years. See Sentencing Judgment, Prosecutor v. Tadić, Case No. IT-94-1-T (Intl. Trib. for the Prosecution of Persons Responsible for Serious Violations of Intl. Humanitarian Law Committed in the Territory of Former Yugo. since 1991, July 14, 1997) .
91. Although in theory Tadić had faced the possibility of life imprisonment under the tribunal's rules, see ICTY Rules, supra note 33, rule 101, this probably was not a realistic outcome given the requirements in the tribunal's Statute that it "have recourse" to the "general practice" regarding prison sentences in the courts of the former Yugoslavia, see ICTY Statute, supra note 2, art. 24(1). While the issue of what "general practice" is in the former Yugoslavia is not free from doubt, generally the maximum allowable sentence in the region is 20 years imprisonment.
92. See Dylan Cors & Siobhán K. Fisher, National Law in International Criminal Punishment: Yugoslavia's Maximum Prison Sentences and the United Nations War Crimes Tribunal, 3 PARKER SCH. J.E. EUR. L. 637, 660-62 & n.110 (1996).
93. Both the defendant and the prosecutor have filed appeals to the judgment. See Notice of Appeal of Judgment of May 7, 1997 by the Defence, Prosecutor v. Tadić, Case No. IT-94-1-T (App. Chamber, Intl. Trib. for the Prosecution of Persons Responsible for Serious Violations on Intl. Humanitarian Law Committed in the Territory of Former Yugo. since 1991, June 3, 1997) [hereinafter Defence Notice of Appeal];
94. Notice of Appeal of Judgment of May 7, 1997 by the Prosecutor, Prosecutor v. Tadić, Case No. IT-94-1-T (App. Chamber, Intl. Trib. for the Prosecution of Persons Responsible for Serious Violations on Intl. Humanitarian Law Committed in the Territory of Former Yugo. since 1991, June 6, 1997) .
95. See Tadić Judgment, supra note 4, ¶¶ 53-126.
96. Tadlć Judgment, supra note 4, ¶¶ 130-92.
97. Tadić Judgment, supra note 4, ¶¶ 137-41.
98. Osiel defines the term as collections of historical stories that permit societies to draw common lessons for the future, namely, tales that "a society tells [itself] about momentous events in its history, the events that most profoundly affect the lives of its members and most arouse their passions for long periods." OSIEL, supra note 6, at 18-19.
99. Thus, the judgment includes the statement of an elected Serb official who indicated in the media that he would no longer allow non-Serb women to give birth at the local hospital, that all mixed marriage couples should be divorced or face annulment, and that children of such marriages "were good only for making soap." Tadić Judgment, supra note 4, ¶ 147.
100. See Tadić Judgment, supra note 4, ¶ 129.
101. The judgment also quotes one witness who describes Prijedor as the symbol of the "brotherhood unity of the former Yugoslavia at large." Tadić Judgment, supra note 4, ¶ 129.
102. See Tadić Judgment, supra note 4, ¶¶ 193-556.
103. For the tribunal's disposition of each count charged, see Tadić Judgment, supra note 4, ¶¶ 203-04.
104. See, e.g., Tadić Judgment, supra note 4, ¶¶ 207-28.
105. See Tadić Judgment, supra note 4, ¶¶ 396-97.
106. See Tadić Judgment, supra note 4, ¶¶ 397, 426-35, 444-48.
107. See, e.g., Tadić Judgment, supra note 4, ¶¶ 453-59.
108. See, e.g., Tadić Judgment, supra note 4, ¶ 237 (finding insufficient evidence that Tadić took an active part in the assault and mutilation of Fikret Harambasic);
109. Tadić Judgment, supra note 4, ¶ 241 (finding insufficient evidence that prisoners died of the injuries alleged). The Chamber rejected, however, the defense claim that, as a matter of law, a finding of guilt cannot rest on the testimony of a single witness.
110. See Tadić Judgment, supra note 4, ¶¶ 256, 535-39.
111. Defense cross-examination of these witnesses was largely restricted to contesting the description of the underlying conflict as international. See SCHARF, supra note 3, at 120-37.
112. The Tadić defense team's relatively nonconfrontational approach to the prosecution's presentation of relevant history, was, for example, very different from the approach taken by lawyers for Klaus Barbie who attempted to put modern French history itself on trial. See, e.g., OSIEL, supra note 6, at 52-53.
113. See Tadić Judgment, supra note 4, ¶ 481. For an overview of the defense's case, see SCHARF, supra note 3, at 175-206.
114. See, e.g., Tadić Judgment, supra note 4, ¶ 443 (relating to Tadić's claim that he was not present at the Keraterm camp).
115. Even with respect to events at the Omarska camp on June 18, 1992, the Chamber simply states that "no other Defence witness could assign 18 June as a date when the accused was in his or her company." Tadić Judgment, supra note 4, ¶ 230;
116. see also Tadić Judgment, supra note 4, ¶¶ 312-13. Of course, as the judgment readily acknowledges, an alibi defense in this case became nearly impossible given the need to account for Tadić's whereabouts over an extended period.
117. See Tadić Judgment, supra note 4, ¶ 533. Pointing to the many prosecution witnesses who put Tadić on the scene in Omarska on June 18, the Chamber appealed to logical inference, indicating that "it is satisfied beyond reasonable doubt of the guilt of the accused."
118. Tadić Judgment, supra note 4, ¶ 234. With respect to other charges, the chamber counters the "general" testimony of defense alibi witnesses, who testify of the accused's "constant" presence elsewhere, with the "very specific and precise evidence" of certain prosecution witnesses who testify to Tadić's actions on particular occasions.
119. Tadić Judgment, supra note 4, ¶ 278 (relating to events of July 10, 1992);
120. see also Tadić Judgment, supra note 4, ¶¶ 434-35 (relating to Tadić's presence at the Omarska camp).
121. Presumably not to offend Serbian sensibilities and to find common ground in support of the judgment, the judges avoid saying that many defense witnesses, including the accused's wife, Mira Tadić, are not credible. Indeed, at various points, the judges go out of their way to rely on Mira Tadić's testimony, thereby suggesting that they find at least portions of it credible. See, e.g., Tadić Judgment, supra note 4, ¶ 428.
122. Thus, the judges do not accuse the defense's four alibi witnesses, all of whom testify that Tadić was present in Kozarac in May 1992, of lying; the judges simply state that their testimony "does not afford an alibi to the accused except to indicate that they did not happen to see the accused in Kozarac on that day while they were there." Tadić Judgment, supra note 4, ¶ 337.
123. The judges deemphasize the possible significance of ethnic or religious bias by any witness. They dismiss defense contentions that Muslim victims are inherently biased and avoid similar contentions with respect to the veracity of defense witnesses. See Tadić Judgment, supra note 4, ¶¶ 540-41.
124. See Tadić Judgment, supra note 4, ¶ 465.
125. The abuses against non-Serbs were motivated by religious and political reasons. The curse directed at Muslims most often was the derogatory term, "balija," as well as "Fuck your Alija," referring to the SDA leader Alija Izetbegovic. These indicate the motivations of the perpetrators. Abuse was also directed towards Croats for political reasons. There was repeated testimony that men were forced to hold their hands in the three-finger Serb salute, which is a traditional Serb greeting and has meaning within the Serbian Orthodox Church, and several witnesses testified that crosses were carved on men's bodies. Numerous witnesses testified to hearing discriminatory curses such as "balija mother," "Ustasa mother," and "Alija mother," usually in association with a beating. Many were required to sing Serb nationalistic songs and some of the camp guards wore the "Chetnik kokarda," the two-headed eagle described as equivalent to wearing a Nazi swastika. Tadić Judgment, supra note 4, ¶ 467.
126. Tadić Judgment, supra note 4, ¶ 472.
127. Tadić Judgment, supra note 4, ¶ 477. For the Chamber, this evidence includes Tadić's active involvement in political affairs on behalf of a "Greater Serbia," including Tadić's reputed desire to name his child after Slobodan Milošević, his many actions and statements directed against Muslims and his evincing a desire to "disturb relations between ethnic groups."
128. Tadić Judgment, supra note 4, ¶ 475 (internal quotation marks omitted);
129. see also Tadić Judgment, supra note 4, ¶ 185.
130. Tadić Judgment, supra note 4, ¶¶ 572-76.
131. Tadić Judgment, supra note 4, ¶ 574.
132. Tadić Judgment, supra note 4, ¶ 575.
133. According to the chamber's interpretation of article 5's reference to "crimes against humanity," these crimes require, in addition, a showing: (1) that at the time of the commission of the acts or omissions there was an ongoing widespread or systematic attack directed against a civilian population; (2) that the defendants' acts were undertaken on a widespread or systematic basis and in furtherance of such a policy; (3) that all relevant acts be undertaken on discriminatory grounds; and (4) that the perpetrator have knowledge of the wider context of his actions. See Tadić Judgment, supra note 4, ¶ 626. The judges determined that the need to have actions "directed against a civilian 'population'" requires a widespread course of conduct, suggesting a large number of victims, or systematic mass action, suggesting a pattern or methodical plan, and not "isolated or random" acts.
134. Tadić Judgment, supra note 4, ¶ 646. In addition, persons must be "victimised not because of [their] individual attributes but rather because of [their] membership [within] a targeted civilian population."
135. Tadić Judgment, supra note 4, ¶ 644. In deference to the Report of the Secretary-General that recommended that the Security Council establish the Yugoslavia tribunal, the judges affirm that "discrimination" is required and must rest on "national, political, ethnic, racial or religious grounds."
136. Tadić Judgment, supra note 4, ¶ 652. They also agree that the acts must be part of a formally adopted, or at least consciously pursued, policy directed against particular groups of people, whether or not pursued by a state.
137. See Tadić Judgment, supra note 4, ¶ 653. As for the defendant's intent, they require a showing that the perpetrator has knowledge, either actual or constructive, that these acts were occurring on a widespread or systematic basis and does not commit his act for purely personal motives completely unrelated to the attack on the civilian population . . . . Therefore the perpetrator must know that there is an attack on the civilian population, know that his act fits in with the attack and the act must not be taken for purely personal reasons unrelated to the armed conflict.
138. Tadić Judgment, supra note 4, ¶ 659.
139. Tadić Judgment, supra note 4, ¶ 694.
140. Tadić Judgment, supra note 4, ¶ 697;
141. see also Tadić Judgment, supra note 4, ¶ 707 (noting that forms of persecution vary, but the prerequisite for all is discrimination with respect to a "fundamental right").
142. Tadić Judgment, supra note 4, ¶ 697. Although the chamber does not attempt a definitive list of acts that would constitute persecution, it surveys the wide variety of acts that have been included in the literature or in prior practice, including Nuremberg itself - from killing to limitation of the type of professions open to the targeted group, from restrictions on family life to inflammatory writings inciting a population to anti-Semitic persecution - and concludes that the crime encompasses "a variety of acts, including, inter alia, those of a physical, economic or judicial nature, that violate an individual's right to the equal enjoyment of his basic rights."
143. Tadić Judgment, supra note 4, ¶ 710;
144. see also Tadić Judgment, supra note 4, ¶¶ 707-09.
145. Cf. supra text accompanying notes 17-21 (discussing need for international fora). Thus, for example, the requirement that crimes against humanity be directed at "any civilian population . . . gives the crime the requisite international dimension and . . . permits extraterritorial prosecution, thus distinguishing it from an 'ordinary crime' that the state is expected to prosecute." The Queen v. Finta [1994] S.C.R. 701, 752 (Can.) (La Forest, J., dissenting) (internal quotation marks omitted).
146. Tadić's sentencing, as reported in the press, included an oral statement by Chief Judge Gabrielle Kirk McDonald. As quoted in news accounts, Judge McDonald noted that Tadić beat his Muslim and Croat victims "intentionally and with sadistic brutality, using knives, weapons, iron bars, the butt of a pistol, sticks and by kicking . . . tightening a noose around the neck of one of them until he lost consciousness. Why?" War Criminal Sentenced to 20-Year Term, CHARLESTON DAILY MAIL (W. Va.), July 14, 1997, at A8, available in 1997 WL 7110580.
147. Judge McDonald also alluded to political leaders' encouragement of ethnic hatred and indicated to Tadić, "[y]ou responded to this campaign and you must bear responsibility for your criminal conduct." War Criminal Sentenced to 20-Year Term, CHARLESTON DAILY MAIL 1997, A8, Id.
148. She concluded that "[t]o condone your actions even when committed in this context is to give effect to a base view of morality and invite anarchy." War Criminal Sentenced to 20-Year Term, CHARLESTON DAILY MAIL 1997, A8, Id. Judge McDonald's statements, including her presumably rhetorical question to the defendant, were obviously intended to enhance collective revulsion against Tadić's acts and encourage unanimity in favor of the severity of the chamber's sentence.
149. See also Sentencing Judgment, Prosecutor v. Tadić, Case No. IT-94-1-T (Trial Chamber, Intl. Trib. For the Prosecution of Persons Responsible for Serious Violations of Intl. Humanitarian Law Committed in the Territory of Former Yugo. since 1991, July 14, 1997) (hereinafter Sentencing Judgment).
150. The preliminary factual findings extend from paragraph 193 of the judgment to paragraph 477 in an opinion that has 765 paragraphs total.
151. See, e.g., Marlise Simons, A War-Crimes Trial, but of Muslims, Not Serbs, N.Y. TIMES, Apr. 3, 1997, at A3.
152. See generally Dušan Cotić, Introduction, 5 CRIM. L.F. 223 (1994).
153. The reaction to Tadić's conviction and sentence was, within the Balkans, strongly divided along Serb/non-Serb lines. The deputy justice minister of the Bosnian Serb republic at Pale, Goran Neskovic, expressed the view of many Serbian observers when he pronounced that the Tadić sentence proved the tribunal's "bias against Serbs." Mike Corder, Tribunal Sentences Bosnian Serb to Serve 20 Years for Terror Campaign, WASH. POST, July 15, 1997, at A13.
154. According to Neskovic, "Tadi[ć] was convicted only because he lived in Prijedor . . . . That man is not guilty, and not a single witness could confirm that he was responsible." Mike Corder, Tribunal Sentences Bosnian Serb to Serve 20 Years for Terror Campaign, WASH. POST, 1997 A13. Id. Indeed, the absence of Serbian support for the Yugoslav tribunal, long apparent given the lack of cooperation, indeed obstruction, by government officials and others to the tribunal's ongoing investigations, only seemed to deepen after the verdict was rendered and NATO forces undertook two modest raids to arrest other indicted individuals. Instead of closure, bomb and other threats emerged as a result of the verdict and the NATO actions, and Serbian media reports lambasted both the verdict and the NATO actions as biased attacks on the Serbian cause.
155. See Jovana Gee, Serb Anger Grows due to NATO Raid, Tribunal Sentencing, ASSOCIATED PRESS, July 14, 1997, available in 1997 WL 4874854;
156. see also Jovana Gec, Serbs Bury War Crimes Suspect, Accuse NATO of Murder, ASSOCIATED PRESS, July 13, 1997, available in 1997 WL 4874729.
157. Indeed, Serbian anti-tribunal propaganda has been so vitriolic that it prompted NATO attempts to disrupt television transmissions within Bosnia. See, e.g., Chris Hedges, NATO Troops in Bosnia Silence Karadzic's [sic] Television Station, N.Y. TIMES, Oct. 2, 1997, at A3.
158. See, e.g., Hayden, Schindler's Fate, supra note 40, at 743; Hayden, Reply, supra note 40, at 767; Rubin, supra note 40, at 41-42.
159. See, e.g., SCHARF, supra note 3, at 207-28; Chaney, supra note 22, at 60; Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused, 90 AM. J. INTL. L. 235 (1996); Scharf, supra note 31;
160. Michael Scharf & Valerie Epps, The International Trial of the Century? A "Cross-Fire" Exchange on the First Case Before the Yugoslavia War Crimes Tribunal, 29 CORNELL INTL. L.J. 635, 643-63 (1996);
161. Sienho Yee, The Erdemovic Sentencing Judgement: A Questionable Milestone for the International Criminal Tribunal for the Former Yugoslavia, 26 GA. J. INTL. & COMP. L. 263 (1997).
162. See SABRINA PETRA RAMET, BALKAN BABEL: THE DISINTEGRATION OF YUGOSLAVIA FROM THE DEATH OF TITO TO ETHNIC WAR (2d ed. 1996);
163. NOEL MALCOLM, BOSNIA: A SHORT HISTORY (1996).
164. See MALCOLM, supra note 82; RAMET supra note 82. Although Ramet does not rely on atavistic ethnic hatreds to explain recent massacres, she describes the various ways institutions, such as the Serbian Orthodox Church, and individuals, such as Milošević, journalists, and rock stars, revived and exploited nationalist sentiments that go back at least to 1918. Separate chapters in Ramet's book are devoted to "distinct spheres of influence" - culture and society, religion, and politics - and she chronicles, for example, the forms of "victim complex" that became manifest within each sphere. See RAMET, supra note 82, at 91-112, 198-200; see also id. at 275-98 (discussing the "[r]epercussions of the War in religion, gender relations, and culture"). Malcolm's is a more traditional historical account which begins with the origins of racial myths in Bosnia in 1180 and takes readers through distinct historical periods until modern times. See generally MALCOLM, supra note 82.
165. See OSIEL, supra note 6; see also Alan M. Dershowitz, Life Is Not a Dramatic Narrative, in LAW'S STORIES: NARRATIVE AND RHETORIC IN THE LAW 99 (Peter Brooks & Paul Gewirtz eds., 1996) [hereinafter LAW'S STORIES];
166. David N. Rosen, Rhetoric and Result in the Bobby Scale Trial, in LAW'S STORIES, supra, at 110.
167. Ramet states, for example, that it is precisely in "macho" Serbia that patriarchal backlash was strongest . . . . The entire Milošević phenomenon is, in fact, rooted in fear: fear of Albanians, Croats, and even, eventually, Slovenes; fear of new political movements; fear of randomness, freedom, chaos; and fear of women. The primordial linkage of these fears is the explanation as to why Slobodan Milošević 's support comes overwhelmingly from males - middle-aged peasant males being the core and largest part of his support - while his opposition draws women as well as men to its ranks and to its rallies. RAMET, supra note 82, at 122. It is difficult to see how a comparable passage could have appeared in the Tadić judgment - at least without drawing a severe objection complaining of the judges' partiality or incompetence.
168. Cf. ICTY Rules, supra note 33, rule 89 (requiring the admission only of "relevant evidence" with "probative value" and requiring the exclusion of any evidence whose probative value "is substantially outweighed by the need to ensure a fair trial").
169. Cf. Hayden, Schindler's Fate, supra note 40; Hayden, Reply, supra note 40, at 771; Rubin, supra note 40, at 42-43.
170. See, e.g., Akhavan, supra note 38 (manuscript at 64-66) (discussing the efforts to achieve, and the risks of, "ethnic parity" in the context of the tribunal for the former Yugoslavia).
171. See MALCOLM, supra note 82, at 234-52.
172. See id. at xxiv (describing the Serbian "war against the history of their country"); see also MICHAEL A. SELLS, THE BRIDGE BETRAYED (1996) (discussing how "ethnoreligious militants" waged a campaign of "cultural eradication" by targeting architectural, literary, and other monuments as well as people);
173. Chris Hedges, In Bosnia's Schools, 3 Ways Never to Learn from History, N.Y. TIMES, Nov. 25, 1997, at A1 (reporting on separate history, art, and language classes now in place in schools throughout Bosnia for the various ethnicities in that country). This facet of the Balkan conflict, is not, of course, unique to it but is a characteristic of many, if not all, situations involving administrative massacres.
174. See generally IMPUNITY AND HUMAN RIGHTS, supra note 3, at 73-280 (detailing case studies involving battles over national history).
175. See generally Robert A. Ferguson, Untold Stories in the Law, in LAW'S STORIES, supra note 84, at 84, 85 (describing similar issues for domestic courts). Of course, had Tadić's attorneys chosen to contest the prosecution's account of the rise and goals of ethnic cleansing in Prijedor, it is possible that the Tadić trial would have taken a different turn.
176. Cf. Guyora Binder, Representing Nazism: Advocacy and Identity at the Trial of Klaus Barbie, 98 YALE L.J. 1321 (1989) (discussing how Barbie's defense team attempted to put recent French history on trial). Nonetheless, as the Barbie case itself demonstrates, even then prosecutors and judges are likely to seek to avoid being mired in such extraneous arguments, the better to build a convincing verdict. Further, to the extent they fail, the prospects for closure as to the verdict seem especially remote.
177. See, e.g., supra note 85 (Ramet quote).
178. As discussed, the Tadić bench was even circumspect with respect to indicating the extent to which it relied on witness credibility. See supra notes 62-64 and accompanying text.
179. Compare Tadić Judgment, supra note 4, ¶ 603-08 with McDonald Dissent, supra note 42, ¶ 6-10, 33. As the differences between the judges suggest, the lack of consensus is partly due to the lack of clarity in the applicable legal standards. For one example of the political implications of this finding, see Marlise Simons, Defining a War to Determine the Crime, N.Y. TIMES, May 18, 1997, at E4 (suggesting that the tribunal's finding strengthened Milošević's political position).
180. See generally Hayden, Schindler's Fate, supra note 40, at 732-33 (citing, among other examples, Pakistan in 1946-47, the partition of Cyprus by Turkey in the aftermath of the Ottoman Empire, and Croatia in 1941-44).
181. Cf. Thomas M. Franck, Clan and Superclan: Loyalty, Identity, and Community in Law and Practice, 90 AM. J. INTL. L. 359, 360-68 (1996) (discussing differences between concepts of "state" and ethnic "nation").
182. See generally Hayden, Schindler's Fate, supra note 40; Rubin, supra note 40.
183. But see infra Part IV as to other useful functions of such prosecutions.
184. See, e.g., Simpson, supra note 23, at 24-26. To this extent, bringing international prosecutions may pose greater difficulties than national attempts.
185. For an argument that the United States' policies to encourage Haitian officials not to prosecute criminally those involved in earlier atrocities, as well as the United Nations' efforts to pursue immunity for peace in other places, threaten the legitimacy of current international criminal prosecutions, see Michael P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?, 31 TEXAS INTL. L.J. 1 (1996) (noting recent U.N. attempts to encourage amnesty for peace in El Salvador, Cambodia, and South Africa as well as in Haiti); see also SCHARF, supra note 3, at 87 (noting U.N. amnesty efforts in Somalia).
186. But see Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, Prosecutor v. Tadić, Case No. IT-94-1-T, ¶ 28 (Trial Chamber, Intl. Trib. for the Prosecution of Persons Responsible for Serious Violations of Intl. Humanitarian Law Committed in the Territory of Former Yugo. since 1991, Aug. 10, 1995) [hereinafter Decision on the Prosecutor's Motion] (stating that the tribunal is "in certain respects, comparable to a military tribunal, which often has limited rights of due process and more lenient rules of evidence").
187. See generally RATNER & ABRAMS, supra note 3, at 19-22. As these authors note, this principle comes into play in a variety of contexts, including in "constitutional prohibitions on ex post facto laws, judicial rules of construction limiting the use of analogy in interpreting criminal laws, doctrines prohibiting ambiguous criminal laws, and provisions in international human rights instruments barring prosecutions for acts not criminal at the time of their commission." Id. at 19.
188. See, e.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 15, 999 U.N.T.S. 171, 177 (providing in relevant part: "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.").
189. M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 DUKE J. COMP. & INTL. L. 235, 290 (1993).
190. See, e.g., ANNE SA'ADAH, GERMANY'S SECOND CHANCE: TRUST, JUSTICE, AND DEMOCRATIZATION (forthcoming Fall 1998, manuscript at 192, on file with author).
191. Report of the Secretary-General, supra note 2, ¶ 34.
192. Tadić Judgment, supra note 4, ¶ 694.
193. See Tadić Judgment, supra note 4, ¶ 696-97. The tribunal even suggests that no act "separate" from the violation of the right to equality "in some serious fashion" needs to be shown, and refuses to give any definite shape to the types of "fundamental rights" it has in mind.
194. Tadić Judgment, supra note 4, ¶ 697. To the extent that the Chamber provides examples of "persecution," the wide gamut of examples it provides - from violent acts that are already illegal under all states' laws, such as killing, to hate speech, which only some states would find criminally liable under domestic law - and the Chamber's refusal to say anything definitive about these examples add to the likelihood of confusion in future cases.
195. See Tadić Judgment, supra note 4, ¶¶ 703-10.
196. Even the tribunal's defenders recognize the vagueness of a charge for "persecution." See, e.g., RATNER & ABRAMS, supra note 3, at 72-73.
197. See M. Cherif Bassiouni, "Crimes Against Humanity": The Need for a Specialized Convention, 31 COLUM. J. TRANSNTL. L. 457, 461-71 (1994);
198. see also Pavel Dolenc, A Slovenian Perspective on the Statute and Rules of the International Tribunal for the Former Yugoslavia, 5 CRIM. L.F. 451, 457-59 (1994) (criticizing articles 3 & 5 of the Statute of the tribunal for, among other things, failing to define precisely its targeted offenses);
199. Edward M. Wise, General Rules of Criminal Law, DENV. J. INTL. L. & POLY. 313, 315-16 (1997) (criticizing international crimes as currently defined).
200. See Bassiouni, supra note 110, at 469-72; see also Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 AM. J. INTL. L. 238 (1996).
201. But Christopher L. Blakesley attributes vagueness difficulties to the problem that the international lawyers who have tried to define international crimes are insufficiently practiced in the needs of the criminal law. He contends that the requirements of "actus reus" and "mens rea" must be included in future definitions of specific international crimes and notes that "[i]t is debatable whether customary international law or general principles derived from the clarification of national law suffice." Christopher L. Blakesley, Atrocity and Its Prosecution: The Ad Hoc Tribunal for the Former Yugoslavia and Rwanda, in THE LAW OF WAR CRIMES, supra note 23, at 189, 204.
202. Bassiouni, supra note 110, at 471.
203. As Bassiouni himself concedes elsewhere, there are ever higher expectations that international criminal law will meet the standards of national law in this regard. See Bassiouni, supra note 104, at 241.
204. These possibilities are not farfetched if we take seriously the Tadić judgment's conclusion that persecution requires no inhumane act other than a serious violation of the right to equality. See supra note 108 and accompanying text.
205. Cf. supra note 75 (discussing how crimes against humanity are different from "ordinary crimes").
206. Cf. Bassiouni, supra note 110, at 471 ("The observance of the 'rule of law' is far more important than the ad hoc prosecution or punishment of any offender or group of offenders.").
207. See generally Suzanne Walther, Problems in Blaming and Punishing Individuals for Human Rights Violations: The Examples of the Berlin Wall Shootings, in IMPUNITY AND HUMAN RIGHTS, supra note 3, at 99.
208. See Dolenc, supra note 110, at 457.
209. See generally id.; Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INTL. L. 554 (1995).
210. See ICTY Statute, supra note 2, art. 15; Dolenc, supra note 110, at 459-60.
211. See ICTY Statute, supra note 2, art. 10(2). This provision raises concerns as to its relationship with constitutional provisions against double jeopardy, despite arguments, as under U.S. constitutional law, that a second prosecution by the Yugoslav tribunal is analogous to a prosecution by a different sovereign and therefore is not constitutionally barred. See, e.g., Dolenc, supra note 110, at 460-61.
212. See, e.g., Michael P. Scharf, Trial and Error: An American Jurisprudential Assessment of the First Judgment of the Yugoslavia War Crimes Tribunal, 30 N.Y.U. J. INTL. L. & POL. (forthcoming 1998) (manuscript on file with author).
213. On the tribunal's right to conduct public indictments, see ICTY Rules, supra note 33, rule 61(B)-(C).
214. For now it appears that the rules within the distinct national systems will govern issues involving the enforcement of sentences, including early release, rights to visitation, and type of confinement. See ICTY Statute, supra note 2, art. 27. For a discussion of other uncertainties with respect to the Yugoslav Tribunal's approach to sentencing, see Cors & Fisher, supra note 44; Yee, supra note 81.
215. Article 22 provides: "The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity." ICTY Statute, supra note 2, art. 22;
216. see also ICTY Rules, supra note 33, Rules 70, 75.
217. Decision on the Prosecutor's Motion, supra note 101 (separate opinion of Stephen, J.) (relying on article 21(4)(e) of the tribunal's statute). In the end, two anonymous witnesses, L and H, were permitted to testify against Tadić and one of these witnesses' testimony (L's) was later withdrawn.
218. See Leigh, supra note 81, at 238. But see Christine Chinkin, Amicus Curiae Brief on Protective Measures for Victims and Witnesses, Submitted by Dean and Professor of Law Christine Chinkin, in 7 CRIM. L.F. 179 (1996).
219. See, e.g., Dolenc, supra note 110, at 463 (noting article 22 of the Statute and rules 75 and 79); Prosecuting and Defending Violations of Genocide and Humanitarian Law: The International Tribunal for the Former Yugoslavia, 88 ASIL PROC. 239, 247-51 (1994) [hereinafter Prosecuting and Defending Violations] (remarks of Steven J. Lepper) (discussing the development of the Balkan tribunal's rules).
220. For a survey of the lacunae in the tribunals' rules, see, for example, Daniel D. Ntanda Nsereko, Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia, 5 CRIM. L.F. 507 (1994);
221. Prosecuting and Defending Violations, supra, at 243-45 (remarks of Christopher L. Blakesley); Scharf, supra note 122 (manuscript at 11-22). As Ratner and Abrams indicate, international lawyers have attempted to fill these lacunae through resort to evidentiary rules used in international commercial tribunals, including arbitrations, with mixed results. See RATNER & ABRAMS, supra note 3, at 216-17. There are obvious uncertainties for defendants and their attorneys posed by the wide-open license given to the tribunal to apply "rules of evidence which will best favour a fair determination of the matter" and "are consonant with the spirit of the Statute and the general principles of law."
222. ICTY Rules, supra note 33, § 3, rule 89. Defense attorneys are likely to argue that fairness dictates that they have notice, in advance of trial, whether, for example, common law rules of privilege apply.
223. At Nuremberg, the prosecution submitted some seven million pages of meticulously kept Nazi documents. See SCHARF, supra note 3, at 117.
224. See id. at 212.
225. For a summary of the difficulties such oral testimony produced, see id. at 111-205, 212-13. See also id. at 64 (discussing the credibility problems presented by both the absence of a Muslim member of the bench and the fact that four of the eleven judges of the tribunal came from predominately Muslim countries).
226. See supra notes 62-64 and accompanying text.
227. See generally Michael J. Keegan, The Preparation of Cases for the ICTY, 7 TRANSNATL. L. & CONTEMP. PROBS. 120 (1997).
228. This fact also raises a problem that the tribunal only briefly addresses: the lack of equal access to evidence given the locations of defense and prosecution witnesses. The tribunal notes the number of steps taken to alleviate the "inherent difficulties" of this "difficulty encountered by both parties," including video-conferencing links and the grant of safe conduct to testify at The Hague. Tadić Judgment, supra note 4, ¶¶ 530-31.
229. Of course, defense lawyers would argue that lack of equal access to evidence should not be presented as a problem of equal weight to both sides: lack of access to Muslim-held areas may crucially disadvantage a defendant who is unable to rebut prosecution testimony. Further, the prosecution has available tools, such as the possibility of U.M. sanctions, that the defense does not have. For a discussion of these and other disadvantages suffered by defense counsel before the Balkan tribunal, see Mark S. Ellis, Comment, Achieving Justice Before the International War Crimes Tribunal: Challenges for the Defense Counsel, 7 DUKE J. COMP. & INTL. L. 519 (1997). See also Keegan, supra note 133 (discussing similar issues from the prosecutor's perspective).
230. See supra notes 62-64 and accompanying text.
231. The testimony of at least some of those witnesses was on some issues so unequivocal that it appears that the tribunal found them sub silentio not credible. For example, the judges apparently simply chose not to believe one defense witness who testified that the Serbian-run checkpoints in which Tadić served were established not to confirm ethnic identity but merely to check for stolen cars. See SCHARF, supra note 3, at 184.
232. Indeed, it was unusual when the judges chose to disregard the testimony of any Muslim witness in this case - as they did some of the testimony of witness Hakija Elezovic. See Tadić Judgment, supra note 4, ¶ 296 (citing the witness's "confused" state). Far more commonly, the judges disregarded "minor" discrepancies in oral testimony and gave credence to victims' testimony.
233. See, eg., Tadić Judgment, supra note 4, ¶ 275 (finding the testimony of Hase Icic credible).
234. See, e.g., Cotić, supra note 78; Cedric Thornberry, Saving the War Crimes Tribunal, FOREIGN POLY., Fall 1996, at 72.
235. See, e.g., Roht-Arriaza, supra note 3, at 19-21 (identifying the elements of a "victim-centered approach" as involving "public recognition" of the wrongs done to victims and, where possible, compensation); see also ICTY Statute supra note 2, at 2 (authorizing restitution as a possible remedy).
236. Cf. Paul Gewirtz, Narrative and Rhetoric in the Law, in LAW'S STORIES, supra note 84, at 2, 8.
237. For a summary of eyewitnesses' testimonies at trial, see SCHARF, supra note 3, at 139-73.
238. See Akhavan, supra note 38 (manuscript at 42) (approving of the fact that proceedings before the Yugoslav tribunal focus on the perpetrator, not the victim). For arguments that the tensions between the needs of victims and the traditional needs of the criminal law may be endemic, see, for example, Paul Gewirtz, Victims and Voyeurs: Two Narrative Problems at the Criminal Trial, in LAW'S STORIES, supra note 84, at 135.
239. Cf. ICTY Rules, supra note 33, rule 89 (weighing probative value of evidence against its prejudicial effect) .
240. At Tadić's pre-sentencing hearing, the prosecutor did present, however, "victim input statements." See Sentencing Judgment, supra note 76, at para. 4. Still, the Tadić judges refused to consider the amount of victims' alleged economic loss for purposes of sentencing. ICTY Rules Id.
241. See, e.g., ICTY Rules, supra note 33, rule 80.
242. See Anthony Kronman, Leontius' Tale, in LAW'S STORIES, supra note 84, at 54, 56 (arguing that, to the extent such rules suppress emotional stories that ought to be told, the judicial account can be rendered less persuasive).
243. But see Robert Weisberg, Proclaiming Trials as Narratives: Premises and Pretenses, in LAW'S STORIES, supra note 84, at 61, 82 (arguing that imposition of constraints is "designed to vindicate the communal majesty of the law"). As these conflicting arguments imply, the tribunal's rules concerning decorum suggest, in microcosm, inherent tensions within the model of closure.
244. Roht-Arriaza, supra note 3, at 19.
245. For a discussion of how some forms of expiation or apology can be adapted to theories of "reintegrative shaming," see Stanley Cohen, State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past, 20 L. & Soc. INQUIRY 7, 40 (1995).
246. See Decision on the Prosecutor's Motion, supra note 101, ¶ 53, 90; see also Chinkin, supra note 127, at 186 n.2.
247. Indeed, as a procedural decision, it was not subject to interlocutory appeal under the tribunal's rules. See ICTY Statute, supra note 2, art. 25;
248. ICTY Rules, supra note 33, rule 73.
249. See Chinkin, supra note 127, at 186 n.2.
250. See Letter from the Secretary-General to the President of the Security Council (May 24, 1997) (transmitting Final Report of the Commission of Experts Established Pursuant to S.C. Res. 780 (1992), U.N. SCOR, 49th Sess., at IV(F)(3), UN. Doc. S/1994/674 (1994) [hereinafter Final Report]).
251. Cf. HUMAN RIGHTS WATCH, SHELTERED LIVES 9-10 (1996) (outlining specific steps needed to reform prosecutions and investigations before the ICTR to enable it to pursue permutations of gender-specific violence); id. at 24-26 (noting specific ways that the ICTR's methods and procedures fall short).
252. See generally Christine Chinkin, Rape and Sexual Abuse of Women in International Law, 5 EUR. J. INTL. L. 326 (1994).
253. For one set of recommendations intended to respond to the needs of victims of gender-specific violence, see Mission of the Women in the Law Project, No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 91 (1994).
254. See generally Hilary Charlesworth, Transforming the United Men's Club: Feminist Futures for the United Nations, 4 TRANSNATL. L. & CONTEMP. PROBS. 421 (1994).
255. See generally Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL. L. 613 (1991).
256. See generally Simon Chesterman, Never Again . . . and Again: Law, Order, and the Gender of War Crimes in Bosnia and Beyond, 22 YALE J. INTL. L. 299, 324-42 (1997).
257. See supra text accompanying notes 25-27. For a survey of the many ways international humanitarian law, as recorded in the tribunal's statutory jurisdiction, fails to take sufficient account of the Balkan's "gender-based" terrorism, see Amy E. Ray, The Shame of It: Gender-Based Terrorism in the Former Yugoslavia and the Failure of International Human Rights Law to Comprehend the Injuries, 46 AM. U. L. REV. 793 (1997).
258. For an enumeration of proposed changes to the definitions of international crimes that would encompass changes to the definition of "grave breaches" of the Geneva Convention, the laws or customs of war, genocide, and crimes against humanity, see KELLY DANVN ASKIN, WAR CRIMES AGAINST WOMEN 380-403 (1997). See also Chinkin, supra note 153;
259. Catharine A. MacKinnon, Crimes of War, Crimes of Peace, 4 UCLA WOMEN'S L.J. 59 (1993).
260. See Final Report, supra note 151, at 55-60.
261. See generally M. CHERIF BASSIOUNI & MARCIA MCCIRMICK, SEXUAL VIOLENCE: AN INVISIBLE WEAPON OF WAR IN THE FORMER YUGOSLAVIA (Intl. Hum. Rts. L. Inst. Occasional Paper No. 1, 1996). In fact, allegations of genocidal rape go back at least to Soviet actions in World War II.
262. See, e.g., Colloquy, Comparative Analysis of International and National Tribunals, 12 N.Y.L. SCH. J. HUM. RTS. 545, 629 (comments of Professor Istvan Deak). For a historical survey of war crimes against women and humanitarian law's equivocal attempts to confront these prior to the creation of the Yugoslav and Rwanda tribunals, see ASKIN, supra note 157, at 1-203, 243-60.
263. Cf. RAMET, supra note 82, at 117-29 (discussing the role of "gender culture" in the Balkans); Ray, supra note 157, at 801-21 (describing the many ways women have been terrorized in the former Yugoslavia). For consideration of what "neutral" terms like "ethnic conflict" conceal, see generally MacKinnon, supra note 157.
264. Ray argues that the gender-neutral definitions of "grave breaches," the "laws and customs of war," "persecution," or "crimes against humanity" generally, fail to give a name to gendered forms of victimization, including explicit recognition for the crimes of forced prostitution, pregnancy, and maternity under both "grave breaches" and "crimes against humanity." She also argues that "persecution" ought to extend to persecution on the basis of gender. Ray, supra note 157, at 826. From the perspective of the Tadić judgment, Ray's proposals would also imply that the judges should reconsider their insistence that "grave breaches" require interstate conflict. See generally id. at 830-35 (critiquing the "public/private dichotomy" as applied to recent events in the Balkans).
265. For a suggestion that comparable failures may turn the tribunal into an "agent of persecution," see Chinkin, supra note 127, at 182 (citing AUSTRALIAN LAW REFORM COMMN. REP. No. 69, PART I, EQUALITY BEFORE THE LAW: JUSTICE FOR WOMEN 250 (1994)) (discussing what may happen should the tribunal fail to protect victims' identities).
266. See supra text accompanying notes 30-33.
267. Cf. supra note 32 and accompanying text. Even without going to the lengths demanded by critics like Ray and Askin, the tribunal is still likely to run into criticism that it is making new law and imposing ex post facto criminal liability, as is suggested by the prior discussion on persecution. See supra notes 106-09 and accompanying text. Moreover, should it pursue, as expected, prosecutions for mass rape, the tribunal will face a number of novel questions, including the liability of nongovernmental paramilitary units and the classification of mass rape. Should mass rape be considered as a crime against humanity, grave breach of the Geneva Conventions, violation of the laws and customs of war, or genocide, conspiracy to commit genocide, an attempt to commit genocide, or complicity in genocide? As noted, trials for human rights violations often invite litigation of such issues over retroactive legislation. See, e.g., SA'ADAH, supra note 105 (manuscript at 190-91); Walther, supra note 117.
268. What is worse, as Blakesley points out, those detained in Rwanda's prisons are there solely because of denunciations by persons who could have been motivated by any number of personal grudges and there are estimates that anywhere from 20 to 40% percent of those now jailed may be innocent. See Blakesley, supra note 111, at 198.
269. For a description of the response of the U.N. and human rights advocates to Rwanda's demands for application of the death penalty, see Shraga & Zacklin, supra note 3, at 510-11.
270. There are ongoing reports of "hundreds, perhaps thousands" of Tutsi revenge killings amidst periodic waves of civil strife and a "government in exile" periodically threatening to seize power, again in part to grant "amnesty" for Hutus and charge Tutsis with genocide. See, e.g., Blakesley, supra note 111, at 197.
271. Alain Destexhe, the Secretary-General of Medecins Sans Frontieres, argues that the Hutu killings, motivated by the attempt to destroy Tutsis as a group and not merely by the desire to seize territory or possessions, compose one of only three real genocides of the twentieth century. See ALAIN DESTEXHE, RWANDA AND GENOCIDE IN THE TWENTIETH CENTURY 20 (Alison Marschner trans., 1995). He contends that the incomparable stigma of the term "genocide" ought to be confined, consistent with international law and Nuremberg's legacy, to killings seeking the destruction of ethnic, national, or religious groups as such because "[k]illing someone simply because he or she exists . . . is a crime against the very essence of what it is to be human." Id. at 4. He argues that politically motivated murders or those motivated by forcing a particular group from certain territory, such as Serbian killings of Muslims, that fall short of seeking the total elimination of the targeted group should not be considered "genocide." See id. at 18-19. Of course, since the creators of Yugoslav tribunal specifically included "genocide" within that tribunal's jurisdictional mandate, they took a broader view of that crime.
272. Compare ICTY Statute, supra note 2, at 2 with ICTR Statute, supra note 2, at 3-5.
273. See Madeline H. Morris, The Trials of Concurrent Jurisdiction: The Case of Rwanda, 7 DUKE J. COMP. & INTL. L. 349, 353-57 (1997). The Rwanda government would have limited the tribunal's jurisdiction solely to genocide. It would also have limited its jurisdiction to cover only the period from October 1, 1990, when they considered the foundations of the genocide to have been laid by the then-Hutu government, to July 17, 1994, by which time the present Tutsi government had taken control. Effectively this would have meant that the international tribunal would try only Hutus. For a description of the temporal and subject-matter jurisdiction of the Rwanda tribunal, discussing the relevant compromises and drawing comparisons with the Yugoslav tribunal, see Shraga & Zacklin, supra note 3, at 506-10.
274. The ICTR's financial difficulties have been the subject of considerable media attention. See, e.g., Steven Lee Myers, In East Africa, Panel Tackles War Crimes, and Its Own Misdemeanors, N.Y. TIMES, Sept. 14, 1997, § 1, at A8.
275. For discussions of the problematic areas, including diverse interpretations of the standard of proof, the presumption of innocence, the right to legal counsel, non-bis-in-idem/ double jeopardy, the interpretation of evidentiary rules, and uncertainties with respect to enforcement of sentences and incarceration, see, for example, Blakesley, supra note 111, at 209-18; Rod Dixon, Developing International Rules of Evidence for the Yugoslav and Rwanda Tribunals, 7 TRANSNATL. L. & CONTEMP. PROBS. 81 (1997).
276. See ICTR Statute, supra note 2, art. 4.
277. See ICTR Statute, supra note 2, art. 4.
278. See Shraga & Zacklin, supra note 3, at 510. For a defense of the Rwanda tribunal's statute on this point, see Meron, supra note 119, at 565-68.
279. Cf. supra notes 107-09 and accompanying text (on persecution); supra note 111 (discussing Blakesley's views on inadequacies of international criminal law). Article 4 of the Statute of the Rwanda Tribunal includes as cognizable crimes violence to life, health, or physical or mental well-being of persons, and, in particular, murder; cruel treatment; collective punishment; taking of hostages; acts of terrorism; outrages against personal dignity; rape and enforced prostitution; pillage; the passing of sentences and the carrying out of execution without previous judgment pronounced by a regularly constituted court; and threats to commit any of the foregoing acts. See ICTR Statute, supra note 2, art. 4. For one response to the ex post facto challenge, see Meron, supra note 119, at 567 (arguing that "[m]urder is murder all over the world").
280. See The Queen v. Finta, [1994] 1 S.C.R. 701, 848 (Can.).
281. For a survey of some of the financial dilemmas which these tribunals have posed within the U.N., see, for example, SCHARF, supra note 3, at 44-49, 79-84; Shraga & Zacklin, supra note 3, at 512; Myers, supra note 171, § 1, at 6. Indeed, the Tadić trial itself, initially "scheduled to begin in November 1995, was postponed until May 7, 1996, for want of $78,000 for expenses for defense counsel and investigators." See SCHARF, supra note 3, at 83.
282. Cf. supra notes 151-62 and accompanying text. "Forced pregnancy" was given explicit recognition only in later drafts of the Rwanda tribunal's statute. See Blakesley, supra note 111, at 211.
283. See generally LUBAN, supra note 21, at 335-78, 379-91 (discussing the "foundational," "political" and "epic" aspects of Nuremberg and other trials).
284. See generally id.; OSIEL, supra note 6, passim; Simpson, supra note 23, at 20.
285. See LESCURE & TRINTIGNAC, supra note 18, at 96; Cotić, supra note 78, at 233-35; Hayden, Schindler's Fate, supra note 40, at 742; Thornberry, supra note 138. See also ALFRED P. RUBIN, ETHICS AND AUTHORITY IN INTERNATIONAL LAW 170-206 (1997). As one commentator has noted, the Tadić trial had an "unmistakable 'American flavor'" since its presiding judge was from the United States, along with three out of four persons on the prosecution team. See Scharf, supra note 122 (manuscript at 8). Further, since the United States has provided 22 lawyers and investigators to the Yugoslav tribunal, far more than any other Security Council member state, this may be true of other trials at The Hague as well. Id. at 8, n. 23.
286. See, e.g., Barbara Crossette, China Refuses to Go Along With Creation of Pol Pot Tribunal, N.Y. TIMES, June 25, 1997, at A6 (reporting on China's objections to a proposed ad hoc tribunal for Cambodia).
287. After all, the Security Council's decisions in these instances are unprecedented: it has determined the precise scope of individual criminal liability; codified - and probably progressively developed - international criminal law by giving Council sanction to two lists of cognizable international crimes contained in the tribunals' respective statutes; boosted the prospects for a permanent international criminal court; and lent its considerable enforcement powers to all these efforts at the expense of national courts and the hitherto exclusive rights of each state to determine for itself whether to cooperate with another's criminal investigation or whether to extradite a criminal suspect upon request. For examples of the resulting qualms among some member states, see Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, U.N. GAOR, 49th Sess., Supp. No. 33, U.N. Doc. A/49/33 (1994).
288. See, e.g., Dolenc, supra note 110.
289. Since independent criminal courts created by U.N. executive action are unprecedented, no one knows whether the Security Council retains residual authority over these tribunals to amend either tribunal's statute or to terminate either tribunal before its cases are concluded based, for example, on a determination that a threat to the international peace no longer exists. No one knows whether the Council can direct either tribunal not to indict or not to prosecute particular high government officials whose prosecution might be detrimental to the maintenance of the international peace. No one knows whether either tribunal is legally entitled - or willing - to tell the Council that such attempts to interfere are null and void - or what would happen if either tribunal tried. Thus far, only hints of answers to many such fundamental questions about the relative independence and powers of these tribunals have come in earlier trial and appellate chamber decisions in response to jurisdictional challenges brought by Tadić's attorneys. See Decision on Defence Motion on Jurisdiction, supra note 19;
290. Decision on Defence Motion for Interlocutory Appeal, supra note 19;
291. see also Jose E. Alvarez, Nuremberg Revisited: The Tadic [sic] Case, 7 EUR. J. INTL. L. 245, 249-60 (1996);
292. Christian Tomuschat, International Criminal Prosecution: The Precedent of Nuremberg Confirmed, 5 CRIM. L.F. 237, 244-46 (1994);
293. Geoffrey R. Watson, The Humanitarian Law of the Yugoslavia War Crimes Tribunal: Jurisdiction in Prosecutor v. Tadic [sic], 36 VA. J. INTL. L. 687 (1996).
294. See, e.g., Kenneth Anderson, Nuremberg Sensibility: Telford Taylor's Memoir of the Nuremberg Trials, 7 HARV. HUM. RTS. J. 281, 292-94 (1994) (reviewing TAYLOR, supra note 1).
295. See Myers, supra note 171. As of September 1997, of the 21 suspects in custody at Arusha, many were high-ranking officials in the former Hutu-dominated regime, including the former Prime Minister and the Minister of Defense. See id.
296. Shraga & Zacklin, supra note 3, at 517.
297. While NATO seems, at this writing, to be assuming, tentatively, greater responsibility for arrests in the Balkans, the likelihood that it will continue to do so remains in doubt - as does the effectiveness of any such efforts absent a much more massive military presence.
298. Cf. Cohen, supra note 147, at 37 (arguing that the deterrent value of individual punishment in cases involving these politicized crimes remains more uncertain and may be a great deal less than with respect to conventional crimes).
299. See generally IMPUNITY AND HUMAN RIGHTS, supra note 3 (presenting case studies from around the world).
300. See, e.g., supra notes 133-34 and accompanying text.
301. OSIEL, supra note 6, at 294. See generally MARY ANN GLENDON, A NATION UNDER LAWYERS 199-229 (1994) (surveying developments in the "new" legal academy).
302. For one assessment of the reasons underlying the "crisis" in the U.S. legal profession, see GLENDON, supra note 193.
303. For an argument that the proper response may indeed be to "[d]o nothing," see RUBIN, supra note 182, at 183-85.
304. See, e.g., SCHARF, supra note 3, at xii.
305. Cf. Osiel, supra note 5, at 486-97 (arguing that criminal trials foster "social solidarity" by encouraging discourse "with an initially unwilling interlocutor").
306. OSIEL, supra note 6, at 2.
307. Id. at 17 n.22.
308. See Gewirtz, supra note 140, at 2, 5.
309. Osiel, supra note 5, at 499.
310. See OSIEL, supra note 6, at 17 n.22, 38-39. Those who examine law as a rhetorical process reach similar conclusions. See generally JAMES BOYD WHITE, HERACLES' Bow xi, 115-18, 130-31 (1985) (examining the effects of the common language of the law, including the effects of judicial opinions as "socially constitutive literature").
311. But see Jennifer J. Llewellyn & Robert Howse, Institutions for Restorative Justice: The South African Truth and Reconciliation Commission as a Model for Dealing with Conflicts of the Past 2 (Jan. 20, 1998) (unpublished manuscript, on file with author) (arguing that the retributivist aspects of punishment undermine the goal of restoring social equality and recommending the use of truth commissions as an alternative application of "restorative justice").
312. See OSIEL, supra note 6, at 2.
313. NINO, supra note 36, at 131 (comparing trials for human rights violations to Ackerman's "constitutional moments"); see also id. at 132-34 (discussing effects of these collective debates); Gewirtz, supra note 142, at 151 (discussing trials as constituting "a central moral arena for society"); cf. WHITE, supra note 202, at 174 (discussing the "openness" of the language of the law to new points of view).
314. See, e.g., Tom Gallagher, My Neighbour, My Enemy: The Manipulation of Ethnic Identity and the Origins and Conduct of War in Yugoslavia, in WAR AND ETHNICITY: GLOBAL CONNECTIONS AND LOCAL VIOLENCE 47, 60-64 (David Turton ed., 1997). Indeed, according to Amnesty International, some victims have been seen as complicit by affiliation. Thus, Balkan perpetrators have singled out Muslim women allegedly "as a form of retribution because of the perpetrators' presumptions of the actions or intentions of the women's male relatives." Id. at 62.
315. See generally GENOCIDE AFTER EMOTION: THE POSTEMOTIONAL BALKAN WAR (Stjepan G. Meštrović ed., 1996).
316. Compare Schrag, supra note 3, at 19 with Diane Johnstone, Selective Justice in The Hague, THE NATION, Sept. 22, 1997, at 16.
317. Hayden, Schindler's Fate, supra note 40, at 743.
318. See id. at 743; see also Susan L. Woodward, Genocide or Partition: Two Faces of the Same Coin? 55 SLAVIC REV. 755, 756 (1996).
319. See Hayden, Reply, supra note 40, at 774, 777.
320. See NINO, supra note 36, at 147 (arguing that such questions need to be part of "daily discourse" in the context of Argentina).
321. Notions of complicity tend to evolve, as seems clear given ongoing debates about complicity in Nazi war crimes. See, e.g., Detlev F. Vagts, Switzerland, International Law and World War 11, 91 AM. J. INTL. L. 466 (1997) (arguing that Swiss behavior during and after World War II was consistent with contemporaneous legal rules governing neutrals);
322. William H. Honan, Curators as Partners In War Crimes, N.Y. TIMES, July 27, 1997, at E5 (suggesting museum curators who "fenced" Nazi trinkets were parties to war crimes);
323. see also Swiss Federal Banking Commission-Independent Committee of Eminent Persons-Swiss Bankers Association: Statement on Comprehensive Claims Resolution Process for Dormant Accounts In Swiss Banks Dating From Prior to the End of World War II and Announcement on Claims Resolution Process, reprinted in 36 I.L.M. 1379 (1997);
324. Switzerland: Decree on the Legal Investigation of the Assets Deposited in Switzerland After the Advent of the National-Socialist Regime and Decree on the Special Fund for Needy Victims of the Holocaust, reprinted in 36 I.L.M. 1272 (1997).
325. Continuing a dialogue about the prevalence of collective complicity may also be useful to understanding the urge for continued violence in the Balkans, since encouraging notions of complicity was itself a conscious tool of, for example, Serbian aggression. See GENOCIDE AFTER EMOTION: THE POSTEMOTIONAL BALKAN WAR, supra note 206, at 21-22 (describing how Serbian propaganda drew on the alleged collective complicity of Croatians during World War II); MALCOLM, supra note 82, at 217, 252 (arguing that Serbian leaders consciously implicated larger numbers in atrocities in order to align their interests with those of Greater Serbia).
326. This is suggested by the surge in interest in international humanitarian law that the tribunals have helped to engender, along with a rise in the number of countries that have adopted statutes under the principle of universal jurisdiction to permit national war-crimes trials. See Living History Interview with Judge Richard Goldstone, 5 TRANSNATL. L. & CONTEMP. PROBS. 373, 377 (1995);
327. Meron, Answering for War Crimes, supra note 3, at 7.
328. The bloody aftermath of the Rodney King case, see, e.g., Richard C. Paddock & Jenifer Warren, King Case Aftermath: A City in Crisis, L.A. TIMES, May 2, 1992, at A4, is only the most well-known recent example within the United States.
329. See, e.g., Scharf & Epps, supra note 81, at 659 ("The ultimate test of the Tribunal's success . . . will turn on whether the Tribunal gains custody of the major planners, strategists, and commanders in the war and successfully prosecutes a fair number of them.").
330. See RATNER & ABRAMS, supra note 3, at 172-73, 176-77, 296-97.
331. See id. at 297.
332. See sources cited supra note 100 (noting U.N. encouragement of amnesties elsewhere). For a critical history of such efforts, concluding that criminal prosecutions remain "rare" and that "[i]naction, amnesties, and pardons" remain the norm, see NINO, supra note 36, at 5-40. See also id. at 118-27 (explaining why this is the case). For more detailed accounts involving particular countries' attempts to deal with war crimes, see, for example, Suzanne Daley, South African Court Approves Amnesty for Apartheid Crimes, N.Y. TIMES, July 26, 1996, at A3 (reporting on the South African Constitutional Court's approval of amnesty for apartheid crimes);
333. Axel Marschik, The Politics of Prosecution: European National Approaches to War Crimes, in THE LAW OF WAR CRIMES, supra note 23, at 65 (European efforts);
334. Gillian Triggs, Australia's War Crimes Trials: All Pity Choked, in THE LAW OF WAR CRIMES, supra note 23, at 123 (Australia);
335. Sharon A. Williams, Laudable Principles Lacking Application: The Prosecution of War Criminals in Canada, in THE LAW OF WAR CRIMES, supra note 23, at 151 (Canada). But see Roht-Arriaza, supra note 3, at 22-23 (distinguishing individualized pardons from generalized amnesties);
336. Naomi Roht-Arriaza, Conclusion: Combatting Impunity, in IMPUNITY AND HUMAN RIGHTS, supra note 3, at 281, 299 (arguing that despite the practices of states, there is an "emerging" international legal norm that requires states "to investigate, prosecute, and provide redress" for war crimes).
337. See generally IMPUNITY AND HUMAN RIGHTS, supra note 3, at 73-280 (discussing case studies).
338. See, e.g., SA'ADAH, supra note 105, at 201.
339. See id. at 200-01.
340. See, e.g., Legality of the Threat or Use of Nuclear Weapons 1996 Op. I.C.J., reprinted in 35 I.L.M. 809 (1996).
341. Cf. Chris af Jochnick & Roger Normand, The Legitimation of Violence: A Critical History of the Laws of War, 35 HARV. INTL. L.J. 49 (1994).
342. See SCHARF, supra note 3, at 223.
343. Such arguments presume, as Carlos Santiago Nino has suggested, a utilitarian theory of punishment in which trials are deemed a means to prevent crimes or to achieve other collective societal goals, and are shaped in terms of efficacy in attaining these goals. Under a more retributivist approach, society as a whole and victims in particular might be regarded as having a right to punish and to punish all those guilty of commensurate crimes equally. Nino defends a utilitarian approach under which "nobody has a right that certain persons be punished and, consequently, nobody has a right not to be punished because others are not." NINO, supra note 36, at 184-85. He defends selective punishment aimed at "efficiently achieving legitimate goals." Id.
344. Cf. DANIEL JONAH GOLDHAGEN, HITLER'S WILLING EXECUTIONERS: ORDINARY GERMANS AND THE HOLOCAUST (1997); LUBAN, supra note 21, at 362-74 (critically examining Nuremberg's handling of "bureaucratic" Nazi crimes).
345. Consider, for example, the likely Serbian reaction if the first defendant before the Balkan tribunal had been Milošević or Karadžić instead of Tadić. Indeed, one tribunal insider has suggested that the tribunal's prosecutors have consciously avoided issuing an indictment against Milošević precisely because of the political risks. See SCHARF, supra note 3, at 89-90.
346. See id. at 223. While working out particular problems can benefit either the defense or the prosecution, the removal of ambiguities with respect to procedures and evidentiary rules tends to be especially crucial to the defense over time.
347. See supra notes 125-28 and accompanying text (discussing controversy about anonymous witnesses).
348. See generally Stephanie Farrior, Molding the Matrix: The Historical and Theoretical Foundations of International Law Concerning Hate Speech, 14 BERKELEY J. INTL. L. 1 (1996). For a survey of the problems involved in ascribing legal responsibility to those who plan or oversee mass atrocities but do not themselves directly participate in them, see generally NINO, supra note 36.
349. See SCHARF, supra note 3, at 223; Scharf & Epps, supra note 81, at 662-63. But see Akhavan, supra note 38 (manuscript at 60-62) (suggesting that it might be easier to bring cases against higher-level perpetrators in some instances).
350. For a description of efforts to identify cronies and perpetrators prior to the establishment of the ICTY, see, e.g., M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, 5 CRIM. L.F. 279 (1994);
351. see also Final Report of the U.N. Commission of Experts Established Pursuant to Security Council Resolution 780, S/ 1994/674 (1994) (also available at >http://www.cij.org/cij/commission.html>).
352. See generally SCHARF, supra note 3, at 207-28; Scharf & Epps, supra note 81, at 638-40.
353. See, e.g., BRINGING WAR CRIMINALS TO JUSTICE, supra note 39, at 28-33; RATNER & ABRAMS, supra note 3, at 139-287; Roht-Arriaza, supra note 219, at 281-304.
354. See, e.g., BRINGING WAR CRIMINALS TO JUSTICE, supra note 39, passim; RATNER & ABRAMS, supra note 3, at 134; Roht-Arriaza, supra note 13, at 5.
355. It is argued that ongoing ethnic or religious tensions continue to make the prospects of anything other than one-sided show trials untenable. In addition, courts outside these regions remain unlikely fora for criminal proceedings in the absence of a tangible national connection. See RATNER & ABRAMS, supra note 3, at 159-61, 176-77. With respect to Rwanda especially, there are also doubts about that nation's capacity to undertake even-handed prosecutions that respect defendants' rights to speedy but full-fledged trials while relieving victims' fears that the evidence of crimes is rapidly vanishing. See, e.g., DESTEXHE, supra note 168, at 68-71; RATNER & ABRAMS, supra note 3 at 154-56; William A. Schabas, Justice, Democracy, and Impunity in Post-genocide Rwanda: Searching for Solutions to Impossible Problems, 7 CRIM. L.F. 523 (1996).
356. Similar arguments have been used to justify the creation of a permanent international criminal court. See, e.g., Wexler, supra note 18, at 707-13.
357. See ICTR Statute, supra note 2, art. 8, § 2 (requiring primacy with respect to jurisdiction over national courts); ICTY Statute, supra note 2, art. 9, § 2 (same); see also DESTEXHE, supra note 168, at 69;
358. BARBARA HARFF, GENOCIDE AND HUMAN RIGHTS: INTERNATIONAL LEGAL AND POLITICAL ISSUES (1984); Roht-Arriaza, supra note 13, at 5; Shraga & Zacklin, supra note 3, at 505 (outlining arguments that proved persuasive for the creation of the Rwanda tribunal). For views that appear to be representative of the human rights NGO community, see, for example, LESCURE & TRINTIGNAC, supra note 18, at 3-9. Indeed, according to some of the tribunals' advocates, these tribunals must be accorded primacy even if, for example, the present government in Rwanda were to ask that international prosecutions in Arusha be discontinued. See, e.g., Goldstone, supra note 21, at 497-98.
359. See Simpson, supra note 23, at 15.
360. Roht-Arriaza, supra note 13, at 9; accord Reisman, supra note 3, at 185-86.
361. Cf. Roht-Arriaza, supra note 13, at 9 (discussing the destabilizing dangers presented when fragile, transitional governments attempt to prosecute former rulers and others complicit with the former regime).
362. See, e.g., id. at 5-6.
363. To the extent most of the ad hoc tribunals' advocates accept the continued significance of war crimes prosecutions in national courts, they appear to do so out of deference to political realities - that is, because few alternatives to such courts appear to exist - and not because they articulate particular reasons in favor of such proceedings. See Meron, supra note 119, at 555. But see RATNER & ABRAMS, supra note 3, at 159 (acknowledging that while national war crimes trials lack the "aura" of international proceedings they are "likely to have a stronger psychological and deterrent effect on the population," and also are likely to be less expensive and easier to institute).
364. Cf. ICTY Statute, supra note 2, art. 10(2) (setting forth standards for trying person in international court even after national court verdict); ICTR Statute, supra note 2, art. 9(2) (same). It is not entirely clear, however, how the ostensible international legal duty to prosecute at the national level ought to be reconciled with the duty, under both ad hoc tribunals, to accord jurisdictional primacy to these international bodies. Cf. Meron, supra note 119, at 576 & n.120.
365. See generally OSIEL, supra note 6, at 8 n.22 (recognizing the possible role of other legal fora for civil dissensus).
366. As discussed, this is true at least in the case of Rwanda. See supra section III.E.
367. See supra notes 237-45 and accompanying text.
368. See supra section III.B.
369. See supra notes 148-62 and accompanying text.
370. See supra notes 182-85 and accompanying text. For related doubts about the need for international tribunal "primacy," see also Morris, supra note 170.
371. For an early plea urging that American lawyers not get "sucked into this infatuation with - or addiction to - criminal punishment," see Frank Newman, Commentary, 88 ASIL PROC. 253 (1994).
372. See, e.g., RATNER & ABRAMS, supra note 3, at 193-215; Terence S. Coonan, Rescuing History: Legal and Theological Reflections on the Task of Making Former Torturers Accountable, 20 FORDHAM INTL. L.J. 512 (1996); Roht-Arriaza, supra note 219, at 281-92.
373. See generally FRANCIS A. BOYLE, THE BOSNIAN PEOPLE CHARGE GENOCIDE at xi-xxi (1996).
374. But see Kenneth Anderson, Illiberal Tolerance: An Essay on the Fall of Yugoslavia and the Rise of Multiculturalism in the United States, 13 VA. J. INTL. L. 385, 394-95 (1993) (arguing that the ICJ is an inappropriate forum to conduct the necessary factual inquiry to make out the charge of intent to commit genocide).
375. See, e.g., Joseph H.H. Weiler, On Prophets and Judges: Some Personal Reflections on State Responsibility and Crimes of State, in INTERNATIONAL CRIMES OF STATE 319, 322-29 (Joseph H.H. Weiler et al. eds., 1989).
376. See generally Jose E. Alvarez, Judging the Security Council, 90 AM. J. INTL. L. 1, 28-36 (1996) (describing the role of the ICJ in promoting the international community's expressive values).
377. See ICTR Statute, supra note 2, at 1 (stating that "the situation in Rwanda . . . constitute[s] a threat to international peace and security");
378. ICTY Statute, supra note 2, at 1 (labeling the situation in former Yugoslavia "a threat to international peace and security").
379. See supra note 42.
380. See, e.g., Osiel, supra note 5, at 520-67.
381. See supra notes 87-89 and accompanying text.
382. SA'ADAH, supra note 105 (manuscript at 232).
383. See, e.g., RATNER & ABRAMS, supra note 3, at 193-204; Coonan, supra note 253, at 512-13.
384. See, e.g., Akhavan, supra note 38 (manuscript at 3, 95); Scharf & Epps, supra note 81, at 641.
385. See supra section III.A.
386. See, e.g., Suzanne Daley, Winnie Mandela is Defiant, Calling Accusations 'Lunacy,' N.Y. TIMES, Dec. 5, 1997, at Al;
387. Suzanne Daley, Winnie Mandela Killed Youth, Apartheid Inquiry Is Told, N.Y. TIMES, Nov. 26, 1997, at A3 (discussing the worldwide publicity generated by truth commission inquiries into alleged acts by Winnie Mandela). Even some of the principal defenders of the Yugoslav tribunal acknowledge that criminal proceedings can be expected neither to establish the "official" truth nor to "substitute for a commission of truth based on popular participation." Akhavan, supra note 38 (manuscript at 95).
388. See Doe v. Karadžic, 866 F. Supp. 734 (S.D.N.Y. 1994), revd. sub. nom. Kadic v. Karadžic, 70 F.3d 232 (2d Cir. 1995), cert. denied 518 U.S. 1005 (1996); see also Mushikiwabo v. Barayagwiza, No. 94 Civ. 3627 (JSM), 1996 WL 164496, at *1 (S.D.N.Y. Apr. 9, 1996) (default judgment for over $105 million on behalf of five plaintiffs against Rwanda political leader who "played an instrumental role in the torture and massacre of thousands of Rwanda's Tutsi minority"). For a brief survey of the requisites of such suits within U.S. courts, see RATNER & ABRAMS, supra note 3, at 204-11. See also Ralph G. Steinhardt, Fulfilling the Promise of Filartiga: Litigating Human Rights Claims Against the Estate of Ferdinand Marcos, 20 YALE J. INTL. L. 65 (1995) (surveying some of the legal issues raised by these attempts to supply a civil component to Nuremberg).
389. See, e.g., William Aceves, Affirming the Law of Nations in U.S. Courts: The Karadzic [sic] Litigation and the Yugoslav Conflict, 14 BERKELEY J. INTL. L. 137 (1996);
390. David S. Bloch, Dangers of Righteousness: Unintended Consequences of Kadic v. Karadzic [sic], 4 TULSA J. COMP. & INTL. L. 35 (1996);
391. Jordan J. Paust, Suing Karadžić, 10 LEIDEN J. INTL. L. 91 (1997);
392. Peter Schuyler Black, Recent Development, Kadic v. Karadzic [sic]: Misinterpreting the Alien Tort Claims Act, 31 GA. L. REV. 281 (1996);
393. Amy E. Eckert, Recent Development, Kadic v. Karadzic [sic]: Whose International Law?, 25 DENV. J. INTL. L. & POLY. 173 (1996). Of course, other civil suits, such as suits for libel threatened by Winnie Mandela against her accusers before the South African Truth Commission, can also present opportunities for airing these issues and for public deliberation.
394. As suggested by commentative gestures offered by governments, such as Switzerland's decision to offer token payments to Holocaust survivors, such expressions of solicitude mean a great deal to victims. See, e.g., Michael Specter, In Latvia, the First Token of Swiss Remorse: $400, N.Y. TIMES, Nov. 19, 1997, at A4 (reporting victims' reactions to Swiss payments); see also Coonan, supra note 253, at 545 (arguing for forms of government acknowledgment of atrocities and not for mere dissemination of information).
395. See, e.g., Roht-Arriaza, supra note 219, at 290-91 (discussing attempts at civil redress); Tétreault, supra note 9, at 204-06 (discussing U.N. Compensation Commission and its handling of claims by Kuwaiti rape victims).
396. Cf. supra notes 148-62 and accompanying text.
397. Although Karadžić's decision not to appear in the pending civil suit in New York has deprived the plaintiffs in that suit of the opportunity to confront him personally during trial, this need not be the outcome in all such suits. At least some civil suits may provide plaintiff/ victims with the psychological and other relief that has been associated with such courtroom confrontations.
398. See, e.g., JOHN W. THIBAUT & LAURENS WALTER, PROCEDURAL JUSTICE: A PSYCHOLOGICAL ANALYSIS 67-116 (1975).
399. Perhaps this factor should, in addition, lead creators of future international criminal courts to use less inquisitorial proceedings than the ones now in place for the ad hoc tribunals for Rwanda and Yugoslavia. Compare, e.g., GENEVA (SWITZ.) CRIM. PROC. CODE art. 7 (permitting civil action for damages caused by crime to be brought at the same time and before the same court as a criminal action) with ICTY Rules, supra note 33, rule 105 (leaving matters of restitution of property to the initiative of the prosecutor but according third parties the right to be "summoned" to "justify their claim to the property or its proceeds").
400. See Llewellyn & Howse, supra note 202, at 10-11, 39-40 (making these arguments in support of the South African Truth and Reconciliation Commission).
401. See generally Coonan, supra note 253; Margaret Popkin, El Salvador: A Negotiated End to Impunity?, in IMPUNITY AND HUMAN RIGHTS, supra note 3, at 198.
402. See generally Coonan, supra note 253.
403. Cf. Jamie Malamud-Goti, Punishing Human Rights Abuses in Fledgling Democracies: The Case of Argentina, in IMPUNITY AND HUMAN RIGHTS, supra note 3, at 160, 163 (arguing in favor of punishing human rights abuses on the basis that punishment "contribute[s] to establishing democracy by reasserting the authority of institutions").
404. For suggestions along these lines, see Colloquy, supra note 159, at 545, 610-11 (comments of Paul Hoffman); id. at 614 (comments of Neil Kritz); SA'ADAH, supra note 105, at 233-34. If there is, as some assert, an emerging international obligation to defend, protect, and promote democratic governance, see, e.g., Roht-Arriaza, supra note 219, at 299, international lawyers themselves should be the first to give priority to such grass-roots efforts.
405. See supra note 3 and accompanying text.
406. See Forsythe, supra note 40, at 421.
407. OSIEL, supra note 6, at 296.
408. Id. at 296-97.
409. Id. at 297.
410. See supra note 90 and accompanying text.
411. For a view that at least some historic judicial opinions have proven effective because they have not attempted consciously to educate - or accuse - see Sanford Levinson, The Rhetoric of the Judicial Opinion, in LAW'S STORIES, supra note 84, at 187, 197-200 (discussing the absence of historical context in Brown v. Board of Education). See also Roht-Arriaza, supra note 3, at 21 (quoting Henry Rousso on victim's need for justice over the needs to teach history or raise consciousness).
412. See GOLDHAGEN, supra note 227.
413. The significance of preserving such evidence, particularly corroborated physical evidence of atrocities and sworn eyewitness accounts that have been subjected to cross-examination, can scarcely be exaggerated. From the Holocaust to the killing fields of Cambodia, the first defense of the guilty has been to deny what happened. See, e.g., Seth Mydans, In an Interview, Pol Pot Declares His Conscience is Clear, N.Y. TIMES, Oct. 23, 1997, at A12 (reporting Pol Pot's denial that "millions" died as victims of the Khmer Rouge). See generally Cohen, supra note 147, at 12-22 (discussing the "truth phase" of state crimes). Establishing reliable facts as to the number of victims, the types of crimes committed, and the motives of perpetrators - the kind of evidence presented in the Tadić case - helps to prevent plausible denials and seems even more vital where the prospects of renewed violence continue to exist. For example, despite the numerous reports of human rights organizations, U.N. bodies, and the media, there is today considerable debate about whether 20,000 to 50,000 Bosnian women were indeed raped since 1991 or a few thousand. See, e.g., Johnstone, supra note 207, at 18.
414. See, e.g., Marlise Simons, U.N. Panel Convicts Bosnian Serb of War Crimes, N.Y. TIMES, May 8, 1997, at A1 (suggesting that the judgment and reactions to it would determine the future of the tribunal).
415. WHITE, supra note 202, at 185.
416. Thus, perceptions of the Balkan tribunal's "anti-Serb" bias may yet change, as trials against non-Serbs progress. See, e.g., Mike Corder, Stop-and-go trial adds to U.N. war crime tribunal's woes, ASSOCIATED PRESS, June 10, 1997, available in 1997 WL 4870020 (discussing new trial against one Croat and three Muslims).
417. See, e.g., supra notes 125-28 and accompanying text.
418. Simpson, supra note 23, at 24.
419. See, e.g., Cotić, supra note 78; Forsythe, supra note 40; Hayden, Reply, supra note 40; Rubin, supra note 40. Even the effort to internationalize the Balkan tribunal's bench has drawn complaints about some of the nations involved in the judging. See, e.g., Chaney, supra note 22, at 82 (noting the irony of a Chinese judge rendering verdicts on human rights violations); supra note 131 (noting absence of Muslims on bench).
420. See SCHARF, supra note 3, at 224.
421. It is not clear that extensive publicity will be accorded to other trials in the Rwanda or Yugoslav tribunals. While "[t]hroughout the summer of 1996 . . . live television coverage of the Tadi[ć] trial was carried throughout Bosnia," only a limited Serbian audience with access to private cable TV transmission had access to it. See id., at 218. While initially the Tadić trial drew extensive worldwide media attention, such interest dwindled by its end. See id. at xii, 221; see also Akhavan, supra note 38 (manuscript at 67-73) (discussing the denial of media access for Yugoslav tribunal trials and concluding that its trials are "primarily an elitist exercise").
422. Some have argued, for example, that a nation defined on ethnic, as opposed to liberal terms, does not "take part in intellectual debate" but "enters the political arena and advances the claim of one nation, its own, against others. It is interested in ethnological, historical or philological scholarship only to the extent to which these sciences can substantiate its ideological assertions and further its political aims." Jakob Rösel, Nationalism and Ethnicity: Ethnic Nationalism and the Regulation of Ethnic Conflict, in WAR AND ETHNICITY, supra note 205, at 145, 152. Others, such as Anne Sa'adah, have argued that even liberal states do not always encourage open discussions on all issues. On the contrary, she contends that reconciliation efforts in successful democratic transitions involve processes that permit a "negotiated memory," including efforts to "forgive and forget" that "often stand in tension with values central to the liberal project." SA'ADAH, supra note 105 (manuscript at 1) (drawing from the experiences of postwar Germany and post-Revolutionary War United States); see also Cohen, supra note 147, at 47 (arguing that social control can be achieved by eradicating memory).
423. See generally Morris, supra note 170; Sheila O'Shea, Interaction Between International Criminal Tribunals and National Legal Systems, 28 N.Y.U. J. INTL. L. & POL. 367 (1996) (noting variety of state statutes to implement anticipated tribunal orders).
424. See, e.g., Goldstone, supra note 21, at 492-501 (contrasting the South African truth commission with the Yugoslav and Rwanda tribunals).
425. Cf. id. (arguing that the "human rights abuses" in South Africa should be the subject of Nuremberg-style trials, while the serious crimes within the former Yugoslavia and Rwanda warrant criminal liability). As Tadić's trial suggests, many of the trials at The Hague are likely to involve charges of violations of the laws and customs of war and not genocide; many are likely to involve offenses that are arguably no worse than many now being revealed to the South African Truth Commission.
426. These concerns appear repeatedly among advocacy pieces on behalf of the tribunals, both in academe and in the popular press, and are evident even among the tribunals' judges and prosecutors. See Richard J. Goldstone, No Justice in Bosnia, N.Y. TIMES, Mar. 3, 1997, at A17;
427. Meron, Answering for War Crimes, supra note 3, at 2-3. In the summer of 1997, Chief Judge Cassese suggested that the Balkan tribunal's judges should resign en masse in protest unless there were attempts to bring Karadžić and Mladić to The Hague. See SCHARF, supra note 3, at 225.