Crimes of the Holocaust: The Law Confronts Hard Cases

5: Prospects for the Prosecution of Genocide Perpetrators

Chapter 5 Prospects for the Prosecution of Genocide Perpetrators Are disasters like Demjanjuk and Finta idiosyncratic, or do they suggest more widespread and fundamental flaws in Nuremberg-style prosecutions of heinous crimes? Ever since Nuremberg, the world has generally accepted the legitimacy of prosecuting those who commit such crimes. The proceedings at Nuremberg and in Eichmann shared some important qualities: the cases focused on high-profile defendants, much of the evidence was amassed shortly after the crimes, and a plethora of documents was corroborated by the testimony of eyewitnesses. Above, all, these grand, two-track cases were conducted byjurists whose scrupulous fairness and intellectual rigor compensated for the looseness of evidence rules that admitted reams of hearsay, prejudicial, and entirely irrelevant material. The problems of procedure that had emerged at Nuremberg and in Eichmann, however, grew to fatal proportions in the later cases. Delay, the sprawling and diffuse character of the prosecution case, the substantial risk of misidentification of perpetrators, the harassment of traumatized victim witnesses, the vituperative accusations of defense counsel-all not only marred Demjanjuk and Finta but also have caused serious concern in other atrocity cases. European National Courts Respond to Nazi Genocide In 1945, as the world embarked on the investigation and prosecution of crimes committed by the Third Reich, a number of European nations were interested in the apprehension, prosecution, and punishment of Nazi criminals. Countries across Europe tried not only local collaborators but also Germans and other foreign nationals for atrocities committed on their soil during the war. Poland eventually prosecuted more than 5,000 Germans as well as its own citizens. The Soviet Union tried many times that number, while Belgium, Denmark, Luxembourg, the Prosecution of Genocide Perpetrators 241 Netherlands, Norway, France, Greece, Yugoslavia, and other nations all conducted trials of Nazi defendants. Germany In addition to the International Military Tribunal convened by the victorious Allies in Nuremberg, Germany, the occupying powers conducted thousands of criminal proceedings in Germany. At the same time, they mounted a massive "de-Nazification" effort that reviewed the activities during the National Socialist era of more than a million Germans. This campaign was criticized on all sides, some calling it a witch hunt, others a whitewash. Germany's own prosecutorial efforts started rather slowly. Jurisdictional and geographical restrictions imposed by the occupying powers circumscribed the sorts of charges that could be pursued. German prosecutors only had jurisdiction over acts committed in concentration camps located in Germany, rather than in the Eastern European killing centers like Auschwitz; prewar political crimes, such as the murders carried out during the 1934 Rohm purge and the destruction wrought during Kristallnacht in 1938; and the killings undertaken as part of the Nazi euthanasia program. In 1950, the restrictions that the victors had imposed on Germaninitiated prosecutions while they went about their own review of Nazi criminality were lifted. By 1955, German courts had sentenced thousands of individuals convicted of crimes committed before and during the war. In the wake of this activity, as well as Allied prosecutions and the de-Nazification program, the feeling began to spread in Germany that the vast majority of Nazi criminals "had now been tracked down and called to account."1 That view was challenged when a series of truly horrifYing cases came to light, beginning in 1956 with the identification and prosecution of a former SS officer and police chiefwho was proven to have commanded paramilitary troops responsible for the slaughter of thousands ofJews in Lithuania as part ofthe operation ofone of the Nazi's infamous Einsatzgruppen mobile killing units.2 This case demonstrate<;! that many of the worst atrocities committed by German forces in Eastern Europe and the Soviet Union had yet to be addressed in postwar criminal proceedings. In the wake of this disclosure, German prosecutors heightened their efforts. They faced increased difficulties, however, because a statute of limitations prohibiting prosecution regarding any crime but "willful homicide"3 had come into effect. In 1979, Adalbert Riickerl, head of the Central Office ofLandJudicial Authorities for the Investigation of National-Socialist Crimes, published 242 Chapter 5 an assessment of the German prosecutors' achievements. This report discloses the serious difficulties prosecutors encountered in bringing Nazi murderers to justice in their own country. As Riickerl tells it, from 1945 to 1965, Germany instituted proceedings against 67,716 individuals but obtained only 6,115 nonappealable sentences, a sentencing rate of just 9 percent. On closer examination, even starker statistics may be gleaned from Central Office data. Between 1956 and 1965, the sentencing rate dropped to approximately 4 percent; it remained only 5 percent between 1966 and 1979.4 Prosecutors frequently failed to secure convictions once cases were brought to trial. Between 1958 and 1968 German prosecutors were successful in 66 percent of their trials, and in the period from 1969 to 1978 that figure dropped to 60 percent.5 Prosecutors were most likely to succeed against low- and middle-ranking civil servants, soldiers, and Nazi Party officials rather than their superiors. From 1968 on, senior officials constituted less than 13 percent of those convicted each year but one and generally constituted less than 6 percent of those imprisoned.6 These dismal outcomes raise serious questions about the efficacy of German prosecution of Nazi crimes.7 Riickerl's explanation of German difficulties emphasized three points: the unavailability of suspects, proof problems at trial, and procedural obstacles at various stages in the prosecution . Many potential defendants died before they could be successfully prosecuted, a risk that grew with the passage of time. Others became too ill or incapacitated to stand trial. Many serious offenders had fled Germany after the war and could not be found when their crimes were discovered. German prosecutors had grave difficulties in proving the cases they brought to trial. As time went on, ever fewer suspects confessed, and the accused developed more sophisticated defenses. What Riickerl termed "a wall of silence or subterfuge"8 arose and was exceedingly difficult to penetrate. The passage of time and shifting of borders denied prosecutors access to crime scenes and local evidence with which to confront defendants. Few "neutral witnesses"-those with no interest (i.e., no personal stake) in the case-were available to testify. Victim witnesses presented serious problems. All had been under extraordinary stress when they witnessed criminal activity, rendering their perceptions open to question. Victims were increasingly the target of brutal interrogation by defense counsel. A troubling pattern developed in the German cases as the counsel for the defence often harasses witnesses with undue severity and sometimes in a highly unfair manner in order to establish the overall untrustworthiness of the witnesses on the grounds of certain discrepancies, usually of Prosecution of Genocide Perpetrators 243 no significance for the trial, which ensue from a comparison with former statements . Now and then, those attending a trial have seen how some witnesses regard requests from the court to be more precise as an attack on their credibility and react with appropriate vehemence. Similarly, witnesses are often taken aback by a calm and objective warning not to digress, but to adhere to the subject of the trial.9 These difficulties, which became acute in the Eichmann, Demjanjuk, and Finta cases, seem inherent in victim testimony. Moreover, witnesses' memories faded and were distorted with the passage of time. As the years passed, witnesses were likely to be exposed to suggestive material in published or broadcast reports, contacts with ot;her witnesses, and contamination caused by poorly trained police investigators. All this made their testimony increasingly vulnerable to misstatement and attack. Procedural problems also dogged the German prosecutors. Trials grew increasingly lengthy and cumbersome. In an ill-conceived effort at efficiency, prosecutors began to combine large numbers of charges and defendants, multiplying the complexity of cases. They resisted attempts to pare cases down because they feared that "the ascertainment of the real historical fact"10 would be jeopardized. Aggressive defense counsel tactics extended the proceedings. The duration of German cases from initial inquiry to trial lengthened from an average of 3.6 years in 1962 to 7.6 years in 1970 and reached an astonishing 16.8 years in 1977.U As time went by, Germany's pursuit of Nazi killers became more difficult and less likely to end in a conviction. France French prosecutors took on far fewer cases in the 1950s and beyond than did the Germans, but they encountered virtually identical difficulties . In the 1980s and 1990s, France indicted both Germans and Vichy collaborators for atrocities committed during the German occupation. The first trial for crimes against humanity held in France was that of Klaus Barbie, a German SS officer accused of the torture and murder of prominent French Resistance figures in Lyon as well as a series of police . actions that led to the capture, deportation, and eventual murder of a substantial number of Jewish children. The French secured Barbie's extradition from Bolivia in 1983. Barbie went on trial in Lyon in May 1987. In addition to the government prosecutor, over forty lawyers, representing civil plaintiffs (as permitted under French law), appeared in the case. The prosecutors offered almost one hundred witnesses, many of them victims of torture. In addition, the government and its allies called the Nobel laureate Elie Wiesel; a niece of General Charles 244 Chapter 5 deGaulle; Marie Claude Vaillant-Couturier, aprominent Resistance leader who had testified at Nuremberg and been confined in Auschwitz; and Wolfgang Scheffler, the German expert on the Holocaust who testified in both the Demjanjuk and Finta cases. Not to be outdone, the defense put on a flamboyant display of cross-examination and oral advocacy challenging the veracity of witnesses and pressing the argument that the French in Algeria and the Israelis in Palestine were guilty of actions every bit as vile as the charges lodged against Barbie. The defendant absented himself from most of the trial, provoking vociferous complaints by the prosecutors and their allies. With the help ofa particularly damning document in which Barbie reported his success in seizing fortyfour Jewish children for deportation, the seventy-four-year-old defendant was convicted of crimes against humanity and sentenced to life in prison. This case opened the door to two highly controversial prosecutions: Paul Touvier in 1994 and Maurice Papon in 1998. Both defendants were Frenchmen who had served as agents of the Vichy government that had been installed after Germany defeated France at the start of World War II. Touvier had been a senior officer of the milice, or militia, during the occupation and was proven to have ordered the shooting ofsevenJewish prisoners in retaliation for the assassination of milice leader Philippe Henriot. Touvier's case encountered a variety of roadblocks, including a partial Presidential pardon in the early 1970s, substantial assistance by Catholic clergy in his avoidance ofarrest, and an intermediate court ruling that he should not stand trial because the law concerning crimes against humanity did not apply to Vichy officials. This final roadblock was cleared by a subsequent ruling that held the milice could be treated as an arm of the Nazi occupation forces rather than the Vichy government . Mter a trial involving thirty-four private prosecutors, a host ofwitnesses , and proof of Touvier's ongoing anti-Semitism, he was convicted of crimes against humanity and jailed for life, one of the few French "middle-level henchmen"12 of the Holocaust ever to be brought to justice . The prosecution ofPapon was noteworthy because the defendant had risen to great prominence in postwar France, eventually serving as budget minister. His trial was more than twenty years'in the making, and the courtroom proceedings were the longest in French history. Finally, in April 1998, Papon was convicted of complicity in crimes against humanity for helping to organize the deportation ofJewish victims, mostly children and women, from Bordeaux in Southern France. Unlike the acts of Barbie and Touvier, Papon's deeds were not those of a knowing murderer . He was acquitted of involvement in the deaths of the Jewish deportees. Despite allegations that Papon had been made a scapegoat Prosecution of Genocide Perpetraton 245 for all ofVichy, the French courts found a mid-level public servant guilty of complicity in crimes against humanity for taking administrative steps with no overt murderous objective and with no proofof the defendant's anti-Semitism. The conviction caused a public uproar in France, and prosecutors did not go on to indict other similarly situated officials. Criminal Prosecutions of Previous Regimes by Democratic Governments Criminal prosecutions on the model of Nuremberg have been undertaken by other governments seeking to punish horrific crimes committed by previous regimes. Although many civilian administrations have had to promise amnesty to members of the militaryjuntas that preceded them as a condition for the peaceful transfer ofpower, some courageous governments have prosecuted prior regime's crimes as an integral part of the restoration of the rule of law. Others are continually pressed by groups in civil society to investigate and punish those involved in the disappearance and death ofpeople who resisted military rule. Cases arising in Argentina and Chile illustrate both ends of this continuum. In April 1985, the Argentinean government of Raul Alfonsin, in fulfillment of a campaign pledge, tried nine leaders of the military junta who had been ousted after a series of political, social, and economic disasters culminating in the failed invasion of the Falkland Islands. Alfonsin won a surprising election victory on the strength of his promise to prosecute and felt obliged to see a trial through. Previously his government had created a truth commission to establish the facts regarding the operation of the deposed militaryjunta. Injust six months, the commission took more than 7,800 statements, examined the fates of more than 8,900 of those who had been disappeared, and forwarded the names of more than 1,300 suspects to Argentinean prosecutors. The documents and testimony it gathered proved invaluable. The truth commission 's report, titled Nunca Mas (Never Again), detailed the massive crimes committee by the junta and recommended 1,086 cases for judicial review. The Argentinean prosecutors adopted the two-track strategy of Nuremberg, retelling the full story of the army's repressive rule from its seizure of power in 1976 to its fall in 1983, even though the truth commission had made a case of this scope unnecessary. The trial heard 832 witnesses and ran for approximately eight months. Virtually no evidentiary restrictions were observed, inundating the court with hearsay, prejudicial , and irrelevant materials. Critics branded the trial a "political show."13 Its slow pace and refusal to use traditional safeguards led to ever more vigorous protests. The unreeling of wholesale accusations 246 Chapter 5 alarmed potential defendants. For victims, its expansive approach seemed to suggest the prospect of personal retribution. The trial revived the animosities and fears of a turbulent era and unsettled Argentinean society. Eventually, elements within the military rose in rebellion, and a coup was only narrowly averted through a series of courageous actions by Alfonsin. The social forces loosed by this "big trial"14 were exceedingly difficult to contain. Argentina lacked the juridical resources and political consensus required by such a wide-ranging trial. The didactic prosecution of junta leaders unleashed forces that placed Argentina's fledgling democracy in dire jeopardy. In Chile, the gradual restoration of democracy, the development of civil society, and the reestablishment of the rule of law has allowed the people to seek information about the fate of those who were disappeared during the coup that overthrew the democratically elected government of Salvador Allende. A truth commission created a careful and persuasive record of the misdeeds of the Pinochet government. Although prosecution within Chile was blocked by the amnesty provisions under which Pinochet stepped down, groups of survivors and human-rights activists have initiated legal actions in other national and international courts. Because the laws of Spain allow the prosecution of those who commit crimes against Spanish nationals living in other countries , the Spanish Magistrate Balthasar Garzon requested the extradition of former dictator Augusto Pinochet from England. Mter lengthy proceedings , the House of Lords concluded that Pinochet was, at least as a matter of principle, amenable to prosecution with respect to charges involving alleged torture of prisoners held in Chilean confinement. Although Pinochet's ill health prevented his transfer to Spanish custody, the door had been opened to a major judicial exploration of Chilean human-rights violations. International Tribunals Today During the final decades of the twentieth century, the world struggled to respond to massive atrocities perpetrated in the context of civil wars. Crimes amounting to genocide took place in postcommunist Europe and in postcolonial Mrica, as well as Southeast Asia. Perhaps in response to their own failure to intervene early enough to prevent horrific violations of human rights, a number of nations joined together to fashion an adjudicatory strategy to prosecute those who perpetrated such crimes. The first effort came in 1993 with the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) to address the massacres and "ethnic cleansing" that accompanied the disintegration of the state. The second was begun in 1994, when the United Prosecution of Genocide Perpetrators 247 Nations created the International Criminal Tribunal for Rwanda (ICTR) in response to the slaughter of up to one million Tutsis by the Hutus. Realizing that an ad hoc approach to violations of human rights was inadequate to address a problem of such scope, a multilateral treaty authorizing the formation of an International Criminal Court (ICC) to prosecute those accused of the gravest breaches of human rights was drafted in Rome in 1998. The International Criminal Tribunal for the Former Yugoslavia The ICTYis a child of Nuremberg. In February 1993, when U.S. Ambassador Madeleine Albright spoke on behalf of a U.N. Security Council resolution to create an ad hoc criminal tribunal to pursue misconduct in the former Yugoslavia, she declared that the initiative was a "reaffirmation " of the "Nuremberg Principles."15 In his book For Humanity, Richard Goldstone, the first ICTY prosecutor, stressed the tribunal's debt to Nuremberg with respect to both substantive law and procedure .16 Goldstone's chief assistant was Graham Blewitt, who had previously directed Australia's Nazi War Crimes Investigation Unit. The architects of the ICTY modeled its courtroom procedures on the precedents set at Nuremberg. The general approach was adversarial, but customary evidentiary rules were, for the most part, discarded. When the ICTYwas established, there was serious doubt that it would ever hear a single case. Its transformation into an operational court is intertwined with some of the most dramatic events of the mid-1990s. U.N. intervention was triggered by the revelation of the horrors of the Serbian-run Omarska prison camp on August 2, 1992, by Roy Gutman of Newsday and on August 6 by an English television news team from International Television News (ITN). Photographs of emaciated prisoners and reports of grotesque brutality reminded the international community of Nazi barbarity and galvanized world public opinion. Within a week of these reports, the United Nations called for a full-scale inquiry (Resolution 771). Shortly thereafter, the United Nations established an international "Commission of Experts" to carry out a careful investigation (Resolution 780). Despite a severe shortage of resources, the U.N.'s commission of experts, under the able leadership of Professor CherifBassiouni, accomplished its goals. Securing voluntary contributions from foundations and nations, it charted the systematic crimes of combatants, particularly the Serbs, and began exhumations of mass graves. Within four months, the commission recommended the establishment of an ad hoc tribunal to prosecute the heinous crimes committed during the disintegration of Yugoslavia. The commission's recommendation, public outrage, and 248 Chapter 5 ongoing atrocities led the United Nations to commit itself to the establishment of such a tribunal (Resolution 803) in February 1993. This resolution was followed in May 1993 by U.N. Security Council Resolution 827, which set forth the nature and scope of the ad hoc tribunal, placed its seat of operations at The Hague, and endowed it with substantial jurisdictional reach pursuant to the broad powers vested in the Security Council under Chapter VII of the U.N. Charter "Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts ofAggression." The world placed little faith in these initial steps because the major powers had stood idly by as Yugoslavia degenerated into violence. Ralph Zacklin, in the U.N. Office of Legal Mfairs, which was responsible for designing the ICTYs structure, declared that in "twenty years of experience in the United Nations, I have never encountered as much skepticism as has surrounded the establishment of this Tribunal."17 The grounds for skepticism are obvious: the tribunal had virtually no funds, many diplomats viewed it as an expendable bargaining chip in negotiations to resolve the Balkan war, and the United Nations had only with the greatest reluctance agreed, at the eleventh hour, to begin addressing the war crimes that had been taking place on a daily basis in Yugoslavia for several years. The process of setting up the tribunal inched forward. Judges were nominated by various nations and, despite the proposal of several inappropriate individuals, the eleven men and women chosen were neither political pawns nor hacks. It proved exceptionally difficult to fill the post of chief prosecutor. Many felt that Bassiouni should have been selected, but his nomination was blocked by Britain and France, which thought him too aggressive and likely to undermine the peace deal they were trying to broker between the warring parties.18Judge Richard Goldstone of South Mrica eventually agreed to accept the post. Goldstone faced a daunting task. He inherited an underfunded tribunal that had no clearly articulated focus or mission and even lacked the power to make arrests. Goldstone raised money, negotiated with the Americans and the British to obtain valuable signals intelligence and aerial reconnaissance information, and asserted the independence of the tribunal and the non-negotiability of its indictments. Goldstone's cause was aided by horrific events in the Balkans, especially the Serb massacre of more than 7,000 unarmed Muslim men seized when the U.N. "safe area" at Srebrenica was overrun by Ratko Mladic and his Bosnian Serb troops. Goldstone pushed his prosecutors into filing a series of charges. These mostly involved minor defendants and seemed intended simply to demonstrate that the ICTYwas making headway. No defendants were in custody, however, and the prospects for actual trials were slim. In Prosecution of Genocide Perpetrators 249 early 1995, however, Dusko Tadic was arrested by the German police on suspicion of having committed war crimes while living in the Prijedor region of Bosnia. Although Tadic was not a person of any great significance in the Bosnian conflict, he had been involved in a number of high-profile events. He had apparently participated in the Serbian "ethnic cleansing" campaign in Prijedor and been present at the infamous Omarska prison camp. Most significant of all, he could be brought before the ICTYbecause he was in the custody of a potentially cooperative nation. In setting up the tribunal, the United Nations had given it "primacy" over national courts; that is, the ICTY had the authority to direct those nations willing to listen to hand prisoners over to the tribunal rather than prosecute them in their own courts. Although Tadic was insignificant, he could serve as a stand-in for or representative of those who had engineered "ethnic cleansing" and sanctioned horrifying brutality against detainees. His prosecution was, thus, reminiscent of Nuremberg. He was indicted by Goldstone's office in February 1995 and handed over to the tribunal by the German government after its parliament passed a law authorizing the step. In May 1995, the chief prosecutor expanded the scope of the ICTY's investigation and demonstrated its neutrality by addressing crimes committed by the Croatians. The ICTYrequested that Bosnian officials cease their prosecutorial work on crimes committed by Croatian forces in the Lasva River Valley in deference to inquiry at The Hague. This move sent shock waves throughout the Balkans. Judge Goldstone had followed a similar strategy when managing a politically sensitive inquiry into wrongdoing in his native South Mrica. Rather than focusing exclusively on the crimes of the apartheid government, Goldstone examined the activities of all parties on the theory that "It's crucial that the mechanism is perceived as fair by all sides."19 Goldstone pushed his prosecutors on other fronts as well. During the run-up to the Dayton peace negotiations held in November 1995, the prosecutors filed a series of high-profile indictments as if to remind the world that justice, as well as peace, had to be served. Injuly 1995, Goldstone indicted the top Bosnian Serb leaders, Radovan Karadic and Ratko Mladic. The procedural and evidentiary rules adopted by the ICTY contain troubling echoes of Nuremberg. Because such rules were not established by the U.N. resolutions that created the ICTY, judges at The Hague were charged with putting them in place. They followed the recommendations of the U.S. government, as well as the precedents set at Nuremberg and its successor trials. The ICTY embraced the adversarial process that had been used in 1945. The parties were assigned the responsibility of adducing the evidence and conducting the direct and cross-examinations that formed the heart of trials. As at Nuremberg, the 250 Chapter 5 rules of evidence that usually regulate adversarial proceedings were abandoned. Rule 89 of the Rules of Procedure and Evidence, Section (A), declared: "The Chambers shall not be bound by national rules of evidence." Although the wording suggests that such rules had to be loosened in order to facilitate international cooperation in the prosecution and on the bench, the intention was broader. The rules that were adopted gave the judges maximum flexibility with respect to relevance, authentication, and hearsay. Whatever vestiges of evidentiary restrictions remained were circumscribed by the judges' shared view that evidence rules frequently had to yield because the court had, in the words of the tribunal's president, Antonio Cassese, to create a reliable "historical record."20 Gabrielle Kirk McDonald, the American jurist, said after the Tadic trial: "[W]e have begun the task of creating a historical record. In the Judgement that followed the conclusion of our first full trial, over which I presided, we established as a judicial fact what happened in a corner of north-eastern Bosnia in 1992, findings that no amount of revisionism or amnesia will erase."21 The goal of creating a complete record of the past trumped the imperative of focusing carefully on specific defendants and criminal acts. As it had done at Nuremberg , the abandonment of the rules ofevidence and commitment to the disclosure of historical "truth" seemed to unmoor the court at The Hague. The proceedings at The Hague, as at Nuremberg, were marked by a substantial material disparity between prosecution and defense. Aware of this problem, the ICTY began with an avowed desire to ensure an "equality of arms." Yet, both defense counsel and the court itself noted troubling inequalities. In the Tadic case, a British barrister, Steven Kay, was recruited to help the defense with cross-examination, a task that the continental lawyers on the defense team all felt uncomfortable handling . Kay's assessment of defense counsel's position is revealing: "[S]o much of the process seemed to favor the prosecution: vast resources, a large number of lawyers and investigators, and even the rules of procedure themselves."22 Mter Tadic's conviction, his lawyers pressed the inequality argument, focusing particularly on their being denied access to documents held by the Republica Serpska, the Bosnian Serb political entity whose legitimacy remained contested. The appellate panel recognized the validity of the defendant's complaint but ruled that, because the defense had not sought a stay of trial proceedings, no reliefwas warranted . The continuing disparity in the resources available to the prosecution and the defense is evident in the ICTY's budget for the year 2000. The prosecution had twice the funds provided to defense counsel, a difference not entirelyjustified by the prosecutors' obligation to pursue new Prosecution of Genocide Perpetrators 251 investigations as well as mount trials. The tribunal registry even instructed defense counsel to curtail the hours they devoted to cases because of budgetary constraints. A lawyer who represented defendants before the tribunal noted that, while the judges and prosecutors share an administrative structure and working quarters at The Hague, defense counsel are excluded, reinforcing a sense that the two sides do not "enjoy completely equal status."23 The common interests of prosecutors and the bench reflected in these arrangements bode ill for the objectivity of the tribunal. These disparities are compounded by the fact that many defendants choose to be represented bylawyers from their homeland and ethnic group. According to Tina Landau, a respected American journalist, the Serbian lawyers who have come to The Hague are, for the most part, unskilled in the art of cross-examination, passive at trial (perhaps reflecting their professional experience in their own country's courts), unfamiliar with the sorts of legal questions that arise before international tribunals, and likely to create "delay and embarrassment."24 To help level the playing field, the ICTYhas two rules mandating that the prosecution provide defense counsel with essential information. Rule 66 requires that prosecutors turn over to the defense all material supporting the indictment, statements of all witnesses the prosecution intends to call, and, upon request, other evidence "material to the preparation of the defense." Rule 68 requires that the prosecution "as soon as practicable, disclose to the defense the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence." The enforcement of these salutary rules has been far from robust. The ICTYhas not punished prosecutorial failures to honor Rules 66 and 68 and has even narrowed their reach.25 In sum, the equality -of-arms problem attendant to Nuremberg's adversarial approach remains serious at the ICTY. The trial of Dusko Tadic on thirty-four counts of war crimes and crimes against humanity began in May 1996. Prosecuting this minor functionary for genocide-related crimes required that he be treated as a representative of the entire Serbian war machine. As chief prosecutor, Goldstone declared: "People don't relate to statistics, to generalizations. People can only relate and feel when they hear somebody that they can identify with telling what happened to them."26 The trial closely followed the pattern established by previous two-track cases. Itwas a sprawling affair, with 86 witnesses for the prosecution and 40 for the defense and 367 exhibits. It generated more than 7,000 pages of transcript. The litigation moved very slowly. Tadic was in custody for seventeen months before proceedings against him began. The pretrial process was punctu- 252 Chapter 5 ated by a series of interlocutory hearings, rulings, and appeals that delayed progress. The trial itself took six months, including 100 trial days of prosecution proof and 50 trial days of defense evidence. As had been the case at Nuremberg and later, Tadic was presented not simply as a criminal deserving punishment but also as a representative of all those who, in prosecutor Grant Niemann's words "commit[ed] particularly brutal acts of terror, presumably in furtherance of the policy of ethnic cleansing."27 The prosecution aimed to convict Tadic in order to condemn the entire Serbian campaign to create and enlarge their nation by terror and torture. The main focus of prosecutorial attention was not the defendant but Serbian nationalism and its leading advocate, Slobodan Milosevic. The opening expert witness, James Gow, played videotapes of Milosevic speeches and stressed the Serb president's plan to enhance both his own power and that of Serbia by engaging in a concerted program of ethnic cleansing. As one observer noted, the first "[f]ive weeks of the trial ... passed without a shred of testimony as to the alleged crimes of the defendant."28 When the prosecution eventually turned to Tadic's crimes, the lure of atrocity evidence proved irresistible. Again and again, the prosecution referred to a single horrific incident first reported by Roy Gutman in his Newsday article: the castration and death of an Omarska prisoner when his Serb captors forced a fellow inmate to bite offhis testicles. The prosecution arranged its proof so that evidence about this event was the climax of its case. The key testimony was supposed to come from a witness designated with the letter "H" to hide his identity from the press and public. To the prosecution's astonishment, when witness "H" was asked about Tadic's involvement in this most dramatic ofatrocities, he testified that the defendant was not present. How the prosecutors came to rely on "H" to prove Tadic's connection to this infamous incident is unclear. What is clear, however, is that the most lurid atrocity previously reported by the press preoccupied the prosecutors and clouded their judgment about the case. They offered a great deal of atrocity proof that they admitted had no direct link to the defendant. At least fourteen witnesses , whom the prosecutors described as "policy witnesses," were called to testify about grave misconduct that had no link whatsoever to Tadic but, rather, accompanied ethnic cleansing. The case became mired in gut-wrenching irrelevancies of the sort featured in the Eichmann and Demjanjuk cases. Solid proof against Tadic was available. Five victim witnesses testified that he had abused them while they were held at the Omarska camp. Four more said they had seen Tadic torture other prisoners. Clear and convincing evidence also existed that Tadic had participated in the bru- Prosecution of Genocide Perpetrators 253 tal ethnic cleansing of his hometown, Kozarac, but proof of genocide, atrocity, and even murder was entirely absent. The defense offered the alibi that Tadic had moved to the town of Banja Luka before hostilities began in Prijedor and, as a military log demonstrated, had spent his days manning a nearby roadblock when it was claimed he was brutalizing Omarska prisoners. Unfortunately for Tadic, his alibi was weak; Banja Luka was not far from Omarska. His witnesses were virtually all Serbs who were vulnerable to challenge concerning their credibility. This ethnic division of witnesses, with Serbs testifying for the defendant and Muslims against him, was a troubling aspect of the evidence in the case. Tadic was properly convicted of eleven counts, involving the "lesser" crimes with which he was charged. In the wake of several dramatic failures of proof, he was exonerated with respect to the more serious murder and atrocity accusations. His trial was also marred by a particularly troubling ruling. During the course of the proceedings, the trial judges decided to allow four witnesses to testifY anonymously, without their identities being disclosed to the defendant or his counsel. The panel of judges adopted this approach on the theory that these witnesses needed special protection that the tribunal, which lacked a proper witnessprotection program, could not provide. In addition, three of the four witnesses were traumatized rape victims with special psychological needs. Although there is no special allowance for anonymity at trials before the tribunal, as Rule 69(a) provides for pretrial testimony, the judges justified this step on the basis of an argument that proceedings at The Hague are analogous to trials before military tribunals, which traditionally have accepted significant limitations on defendants' rights, and because the absence of evidentiary restrictions signaled more "limited rights of due process."29 The decision to grant anonymity, made with the best of intentions, proved calamitous. The fourth witness to be granted anonymous status, witness "L," claimed to be a former guard at the Trnopolje prison camp. He requested anonymity because of his alleged fear that the Serbian forces, with whom he had previously served, would kill him if they discovered his identity. He accused Tadic of murder, rape, and torture in the Trnopolje camp. After the conclusion of his testimony, a dissatisfied prosecution investigator began to check on "L's" story. He discovered that "L" had fabricated his testimony, had been threatened with death by the Bosnian Muslim government if he did not testifY against Tadic, and had been shown news videos by the Muslim government to prepare him to make credible accusations against the defendant. When this information was disclosed, the prosecution asked that "L's" testimony be disregarded. The Muslim government denied wrongdoing, and the 254 Chapter 5 incident led to a serious rift between the Bosnian Muslims and the prosecution . In the end, it was little more than a matter of luck that damning but fabricated evidence was not accredited at the Tadic trial. The loose rules of evidence and the judges' overconfidence in their ability to screen proof nearly led to a miscarriage ofjustice. None of the crimes of which Tadic was convicted approached the seriousness of those alleged by witness "L." The proceeding was marred by numerous evidentiary difficulties. For example, the court accepted the testimony of a Norwegianjudge named Hanne Greve, who had served with Professor Bassiouni on the U.N. Commission of Experts, describing ethnic cleansing in the Prijedor region of Bosnia. Her testimony was nothing more than multiple layers of hearsay. As one insightful analyst pointed out, Judge Greve never interviewed the Prijedor victims, relied on translated witness statements, and drew heavily on propaganda-tainted local newspaper reports.30 Evidence of such attenuated value is likely to mislead triers offact and cannot serve as a secure foundation for weighty legal decisions. As in prior two-track cases, the allure of hearsay proved overwhelming despite the risks posed to the integrity of the fact-finding process. Finally, the Tadic trial lacked the high quality ofjudicial decision making that had saved the Nuremberg and Eichmann cases from disaster. In Tadic, the serious consequences that had ensued in Demjanjuk and Finta were only narrowly avoided. The American jurist Gabrielle Kirk McDonald presided over the threejudge Tadic panel. She not only spoke in defense of the use of anonymous witnesses but also dissented from the court's decision not to require the defense to turn over pretrial witness statements to the prosecution. The outstanding Dutch defense counsel, Michail Wladimiroff (whom the ICTY later asked to serve as a "friend of the court" in providing assistance to Slobodan Milosevic), refused to provide these statements and informed the bench that the defendant would call no further witnesses if the statements were required. He claimed, with strongjustification, that disclosure was tantamount to selfincrimination . Mter further proceedings, the two other members of the Tadic panel voted to overturn the disclosure order. Judge McDonald was more interested in painting the big picture than in guarding the defendant 's rights. At the start and close of the case, she spoke of the "historic " nature of the proceedings. It was fortunate that Tadic was not convicted on the perjured testimony of an anonymous witness and that the adversarial integrity of the proceedings was not undermined by an ill-considered disclosure order.Judge McDonald failed to match the outstanding performances of Lord Justice Lawrence at Nuremberg and Judge Landau in Eichmann and jeopardized the integrity of the Tadic trial. Prosecution of Genocide Perpetraton 255 Had the reputation of the ICTY been linked to nothing more than the Tadic prosecution, the court would have been in deep trouble. Fortunately , the Tadic case was followed by a series of others of greater gravity and effectiveness. Yet, they too were marred by bloated, slow-moving processes vulnerable to serious error. Three cases illustrate some of the ongoing difficulties. The first involved five defendants, two of whom were brothers named Zoran and Miijan Kupreskic, indicted in connection with a Croatian attack on the Bosnian Muslim village ofAhmici that left at least 116 Muslims dead. The defendants were charged, among other things, with the murder of several villagers. A grand total of 157 witnesses was presented and more than 700 exhibits were introduced during proceedings that stretched over 14 months. The case against the Kupreskic brothers came down to the testimony of one eyewitness, a young woman who had been thirteen years old when the attack occurred and whose father had been killed. As in the Demjanjuk and Finta cases, the question was whether the witness's identification should be accepted. The trial chamber, staffed with experienced jurists, including the ICTYs president Antonio Cassese and the British judge Richard May, concluded that the girl should be believed and the brothers convicted. A unanimous five-member appellate panel headed by American judge Patricia Wald overruled the trial court's decision, concluding that there was a significant likelihood of a "miscarriage of justice."31 The reviewingjudges found that the trial panel had not exercised the "extreme caution [needed] when assessing a witness's identification of the accused made under difficult circumstances."32 They had not adequately accounted for the poor lighting in the house where the murder occurred, the perpetrators' use of disguise, the possibility that the murder victim had been armed with a shotgun, the shifts in the eyewitness 's story over time, the pressures apparently exerted on the witness by her family, and the prosecution's failure to produce other potential witnesses or explain their absence. All of this added up to the sort of doubt that undermined the integrity of the conviction. The elaborate trial mounted at The Hague was no better at handling these problems than the Demjanjuk prosecution had been. In the Furundzija case, the defendant was indicted for aiding and abetting rape and torture at the Croatian headquarters where he was in command . Despite repeated defense requests for information pursuant to the disclosure requirements of Tribunal Rules 66 and 68, the prosecution dragged its feet. Prosecutors waited until shortly before trial to turn over critical witness statements. The tribunal expressed "grave concern" regarding this conduct, but it refused to hold that there had been irremediable prejudice.33 The prosecution continued to refuse to disclose vital materials, and the court eventually concluded that its conduct was 256 Chapter 5 "close to negligence."34 The panel overseeing the case issued a formal complaint to the chief prosecutor. Despite all of this, a week after the end of the trial, the prosecutors disclosed a psychiatric report that they had held for some time, suggesting that the key rape-victim witness (Witness A) had, according to a psychological assessment, been diagnosed with post-traumatic stress disorder that might have affected the reliability of her testimony. The tribunal concluded that "prejudice was suffered by the Defence, which was unable to fully cross-examine relevant Prosecution witnesses and to call evidence to deal with any medical, psychiatric or psychological treatment or counselling that may have been received by Witness A."35 Despite this finding ofserious misconduct, the court ordered only the mildest of responses: a reopening of trial so that more evidence might be presented. By not dealing firmly with errant prosecutors, the panel invited further obstruction and paid no more than lip service to the principle of equality ofarms between prosecution and defense. Another significant ICTY case involved a Croatian general, Tihomir Blaskic. This complex and hard-fought trial focused on the Croatian campaign to seize control of the Lasva River Valley in Bosnia. Proceedings featured more than 80 interlocutory decisions, 150 witnesses, 1,300 exhibits, an 18,000-page transcript, and a 3-year trial. Blaskic was an important defendant and his case was vigorously contested, but its inordinate length and preoccupation with a more important person who was not charged, the Croatian president Franjo Tudjman, provide a powerful example of the lack of focus that has plagued the ICTY. Such elephantine proceedings bode ill for the prosecution of Slobodan Milosevic, which began on February 12, 2002. The ICTYprosecutor, Carla Del Ponte, indicated to the court that her office will present a three-part case against Milosevic, focusing first on Kosovo, second on Croatia, and last on Bosnia. Del Ponte estimated that the Kosovo segment will involve 228 prosecution witnesses, 167 video extracts, 775 photographs , 50 charts, 30 maps, and 21 reports from forensic police. Del Ponte estimated that her Kosovo, Croatia, and Bosnia presentations would each require 170 trial days, projecting a trial that lasts at least three years. The ICTY prosecutors plan to take quadruple the time to prosecute this one defendant as the four Allied trial teams needed to present their cases against the top criminals and criminal organizations of the entire Third Reich. The Milosevic case presents ominous echoes of Nuremberg. Milosevic has refused to engage counsel and is representing himself. He has matched wits with the prosecutors and vigorously pressed the argument that the true crimes in Kosovo were committed by the Kosovo Liberation Army, which he describes as a terrorist organization, and NATO, which Prosecution of Genocide Perpetraton 257 he claims caused massive damage and injury with its bombing campaign. The New York Times has suggested that Milosevic's lone defender strategy has been playing well at home in Serbia.36 Milosevic has adopted the approach used by Hermann Goring at Nuremberg. He has rhetorically sought to identify himselfwith his country and the defense of its proper place in the world. As the 2003 Serb election returns attest, this appeal has been quite successful in swaying public opinion in Belgrade. The political risks entailed in high-profile, two-track prosecutions are considerable . Such risks may be worth taking, but they can backfire with disastrous consequences, as the Demjanjuk and Finta cases revealed. While the ICTY has begun to bring the rule of law to the Balkans, its efforts have been marred by the difficulties that have dogged atrocity trials since Nuremberg. It has embraced and elaborated on the core concept of the grand, didactic trial. Cases take years to try and consider mountains of proof. This turn of events has alarmed both tribunal officials and commentators. On her retirement,Judge Patricia Wald sharply criticized the slow pace of proceedings and the exaggerated scope of prosecutions. She urged a focus on only the most significant defendants, a trimming of witness lists, a reduction in the number of counts in indictments, and consideration of the use of plea bargaining. Citing the deaths of two detainees, she has gone so far as to suggest provisional release of certain defendants held at The Hague.37 A significant part of the problem Judge Wald identifies is caused by the ICTYs embrace of the Nuremberg-inspired notion of didactic trials. The problem is amplified by the lure of atrocity proof and the absence of disciplining evidentiary restrictions. The need for truly outstanding judges is stronger than ever and has not been satisfied. The ICTY has encountered several problems not evident at Nuremberg but hinted at in later cases. First, The Hague is more than one thousand miles from the Balkans, and distance from the scene of the crimes complicates evidence-gathering. Richard Goldstone mounted an intensive political and media campaign to persuade British and American intelligence agencies to share information. Limitations on access to reliable evidence have been particularly trying because all sides in the Balkans conflict have worked to insinuate fabricated material into the ICTYprocess. Without reliable corroborative materials, it is exceedingly difficult to separate the real from the fake. Second, because of the catchas -catch-can way the ICTY started, it has had to prosecute a substantial number of insignificant defendants. Trials like those presently being mounted at The Hague are too large in scale for relatively minor offenders . Such cases should be moved to national courts so that the limited resources of the tribunal are not depleted. Third, the ICTY has suffered from a "revolving door" with respect to some of its most skilled staff. In 258 Chapter 5 the span of six years, the office of chief prosecutor has had three different occupants. The ranks ofjudges have experienced similar turnovers. The loss of expertise and leadership has been harmful. While the ICTYhas not failed, it has not provided a prototype worthy of emulation. It seems to be a prisoner of the Nuremberg tradition out ofwhich it grew. It is not surprising, although it is shortsighted, that the Bush administration has declared that the tribunal at The Hague must make every effort to conclude its work no later than 2008. Nor is it remarkable that so well-informed an international lawyer as the Clinton administration's Harold Koh urged that an ICTY-type prosecution not be used if Osama bin Laden is captured because it is too "slow and expensive.''38 The International Criminal Tribunal for Rwanda The ICTR was born of the guilt, shock, and horror that followed in the wake of the one-hundred-day genocidal campaign that resulted in the deaths ofsomewhere between 500,000 and 1,000,000 Tutsis at the hands of Hutu militants in 1994. Contrary to Western media reports of indiscriminate slaughter, the campaign was meticulously planned by highranking militants, spearheaded by militia, and carried out with assistance from as many as 100,000 Hutus across the country, including local officials who incited and directed attacks on Tutsis and their sympathizers . The United Nations and a number ofWestern governments, including the United States, Belgium, and France, did nothing to stop the massacre, even though they were well aware that it was taking place and had sufficient forces to intervene. Long after the fact, President Bill Clinton apologized for the failure of the United States to take action. The killing was halted only when the rebel Rwanda Patriotic Front (RPF) invaded Rwanda and seized Kigali, the capital. The idea of an international tribunal to prosecute the perpetrators was initially supported by the Tutsi government that came to power in the wake of the RPF victory. The United Nations proposed to create a separate tribunal virtually identical to the one already in operation in The Hague and to make the ICTY's chief prosecutor head of the prosecution for Rwanda as well. The two bodies were to share a single appellate court, as well as rules of evidence and procedure. These decisions ensured that the ICTR would follow the same course and use the same approach that had been pioneered at Nuremberg and perpetuated by the ICTY-even though the ICTYtribunal had yet to produce any visible results. The Rwandan government was dissatisfied with the U.N. proposal. It found fault with the United Nations' limitation on the tribunal's juris- Prosecution of Genocide Perpetrators 259 diction to crimes committed in calendar year 1994, the assignment of a pitifully small contingent of six judges, its insistence on locating the tribunal in Arusha, Tanzania, rather than Kigali, granting the tribunal primacy over Rwandan courts, and its refusal to sanction the death penalty. The justifications of the United Nations for several of these decisions were quite provocative. Richard Goldstone suggested that it would be impossible to protect the defendants, their counsel, and the tribunal itself if proceedings were held in Kigali. The refusal of the United Nations to consider the death penalty, which is outlawed by the Universal Declaration of Human Rights, meant that the most highly placed Hutu defendants, who were most likely to be prosecuted by the ICTR, would escape execution while their subordinates, who were tried in Rwandan courts, might be put to death. This inversion of punishments incensed the Rwandan government. Despite Rwandan protests, on November 1, 1994, the U.N. Security Council adopted Resolution 955, which established the ICTR in the form originally proposed. The fledgling ICTR experienced even more difficulties than the ICTY. Its Mrican managers failed to staff the tribunal properly, favoring cronies and excluding Europeans. Mter several years of gross mismanagement , the United Nations compelled the registrar and chief deputy prosecutor to resign. Nonetheless, the ICTY bore fruit, four years after its inauguration, with the first conviction in history for the specific crime of genocide. The tribunal handed down its first judgment, againstJean-Paul Akayesu . The Akayesu case and the others that followed were Nuremberg's progeny, big, slow-moving affairs that relied on an adversarial system but ignored evidentiary restrictions and devoted overwhelming attention to atrocity evidence. The prosecution charged that, as the bourgmestre, or mayor, of the Taba Commune in the Prefecture of Gitarama, Akayesu had either directly or indirectly been responsible for the killing of as many as 2,000 Tutsis in 1994. Akayesu was dissatisfied with his assigned defense counsel and changed lawyers twice before his trial began onjanuary 9, 1997. He tried to do so again during his trial but was barred by the tribunal. Akayesu's problems with counsel reflect a larger difficulty encountered by defendants before the ICTR. Many felt inadequately represented and were kept from the most popular defense lawyers, those from France and the French-speaking population of Canada, by a tribunal policy that curtailed their availability in the name of geographical diversity. Experienced defense counsel has suggested that the ICTR'S approach was perceived by defendants "as being one which not only denies them a genuine free choice but is also evidence of how the Tribunal views the guarantees apparently made in the ICTR Statute. This has seriously undermined any belief that those guarantees will be 260 Chapter 5 honoured and has gravely affected the legitimacy of the Tribunal in the eyes of the accused."39 The lack of trust in the ICTY's guarantees of due process and protection of the rights of the accused undermined the legitimacy of the tribunal in Rwanda. Ak.ayesu's trial lasted more than a year. The prosecutors doggedly fought the defendant's requests for information for reasons the court eventually deemed "groundless."40 The prosecution was allowed to add grave new charges, concerning rape, in the middle of the trial. The progress of the case was astonishingly slow, especially given that the defense conceded the commission of genocide by Hutu extremists across Rwanda and in Taba. The defendant claimed that he was helpless to stop these events, had no hand in them, was the victim of perjured testimony designed by a "syndicate of informers" for purposes of revenge or enrichment,41 and was being made a "scapegoat" simply because he was a Hutu bourgmestre.42 These defenses were familiar from Nuremberg and its successor cases. The tribunal, with substantial evidentiary support, found the defendant guilty of genocide, war crimes, and crimes against humanity. What is most remarkable about thejudgment is its concentration not on Ak.ayesu but on the broad sweep of Rwandan history and the countrywide plan for genocide. In the end, with great effort and at great expense, a mid-level government official was convicted. He was not the architect of genocide. The prosecution found itself in precisely the same position as at the end of the Tadic case: a vast crime had been described, but the defendant in the dock was little more than a stand-in for those who had planned and carried it out. Delay rose to crisis proportions at the ICTR. The charges against one defendant, Barayagwiza, were dropped because of an "egregious" failure of expedition.43 Infuriated by this decision, the Rwandan government threatened to cease its cooperation with the tribunal. The prosecution appealed the Barayag;wiza ruling and, in a face-saving but legally dubious opinion, the appellate panel overturned the original decision. The appeals judges felt it necessary, however, to compensate for "the prejudice caused by deciding that the violation of the accused's right will be a mitigating circumstance or in the case of acquittal, a financial compensation."44 When defendants are authorized to demand payment for excessively prolonged pretrial detention, delay has gotten out of hand. Barayagwiza and two other journalists stand accused of using their positions as news-media executives to fan the flames of hatred and incite the populace to genocide. This is the first time since the prosecution of Julius Streicher at Nuremberg that such a charge has been pressed. The prosecution is mounting an enormous case, with 50,000 documents and Prosecution of Genocide Perpetrators 261 500-600 audio tapes of hate-filled broadcasts. The trial has suffered serious management problems, and the lead prosecutor has twice been replaced. The problems with such proceedings, going beyond delay and expense to disproportion, are clearly in evidence. While such cases grind on, approximately 100,000 prisoners sit in Rwandan jails awaiting trial on charges arising out of genocidal attacks on the Tutsi. The ICTR is widely acknowledged to be an inadequate model for international response to genocide. Nonetheless, for lack ofsomething better, in 2000 the United Nations authorized the creation of a tribunal to adjudicate criminal responsibility arising out of the bloody insurrection in Sierra Leone. The International Criminal Court The problems that plagued the ICTYand ICTR taught the international community the importance of having a permanent tribunal ready and able to adjudicate grave violations of international criminal law. Beginning in 1995, under the auspices of the United Nations, a preparatory committee labored to draft a "statute" or multilateral treaty that would establish an International Criminal Court. A six-week conference convened in Rome in the summer of 1998 with the express objective ofcompleting a draft. Working at a frenetic pace, delegates from around the world pushed to complete their work by the deadline ofjuly 17. To the amazement of many, they succeeded. A consortium of "like minded" nations, most of them democracies, were assisted by a large number of nongovernmental organizations (NGOs) lobbying tirelessly on behalf of the ICC. The draft treaty was concluded over the opposition ofthe U.S. negotiating team, which was under intense pressure from the military and members of the Senate. SenatorJesse Helms (R-North Carolina), chairman of the Foreign Relations Committee, declared that any treaty applicable to U.S. military personnel would be "dead on arrival." Americans insisted that they be allowed a veto over any prosecution of U.S. citizens. This demand alienated close allies and opponents alike. The U.S. position evinced a "breathtaking arrogance"45 that was out of step with the rest of the world. As had been the case with the Convention on Prohibition of the Use, Stockpiling, Production, and Transfer ofAnti-Personnel Mines and on Their Destruction, which had been negotiated in Ottawa, Canada, in December 1997 and came into force on March 1, 1999, the world community acted in disregard of the U.S. position. The ICC created by the Rome agreement was not a finely honed and well-balanced whole. It showed signs of the haste with which it was negotiated and the compromises that were essential to its acceptance. One of 262 Chapter 5 the leading advocates of the creation of the ICC, Professor Cherif Bassiouni , has suggested that the price ofagreement was the loss of "a consistent and coherent legal method."46 Article 1 of the Rome Statute declares that the ICC "should be a permanent institution and should have the power to exercise itsjurisdiction over persons for the most serious crimes of international concern ... and should be complementary to national criminal jurisdictions." The essential elements here are permanence , a focus on the most serious crimes, and complementarity. The court will be permanently open for business rather than an ad hoc arrangement set up after particularly egregious incidents. Its eighteen judges and chief prosecutor will be chosen from among the citizens of signatory nations to serve a single nine-year term. The statute intends to make the prosecutor's office as independent as practicable. The prosecutor is empowered to initiate investigations proprio motu, on his own motion, and is vested with wide discretion in deciding whether to file formal accusations. The only crimes that the ICC may pursue are genocide , crimes against humanity, war crimes, and crimes of aggression. Each of these crimes, with the exception of the much-debated crime of aggression, was defined in the Rome Statute. The key concern of those nations reluctant to accept the ICC was erosion of their sovereignty with respect to decisions whether to prosecute alleged criminal acts committed by their nationals or on their soil. Finding a means to protect national sovereignty while at the same time establishing the authority of the ICC was the central problem posed at Rome. It was resolved by embracing the notion of "complementarity," which requires that the ICC defer to legitimate state criminal processes. Rather than having primary jurisdiction, as do the ICTY and ICTR, the ICC is authorized to prosecute only if the state or states involved cannot or will not proceed. This approach cedes states substantial control over the prosecutorial process and eliminates the most weighty sovereignty concerns . Taken together, the "most serious crimes" requirement and complementarity provision suggest that the ICC will focus its attention only on those few cases where the criminal conduct is especially heinous and the affected states choose not to act or prove incapable of doing so. In these respects, the ICC is a striking departure from Nuremberg, which was temporary, set out to punish a great number ofcriminals, and had primacy over all other processes. Despite these distinctions, the operations of the ICC bear the stamp of Nuremberg. The courtroom system will be adversarial; the proofwill be adduced by the parties rather than the court. As at Nuremberg, there are no evidentiary barriers to hearsay, no insistence on authentication, and no other impediments to the free consideration of evidence. Established in Article 69 of the statute , this point is reiterated in proposed Rule 63 of the ICC Rules of Evi- Prosecution of Genocide Perpetrators 263 dence and Procedure. The apparatus of the ICC contemplates slowmoving cases with vast bodies of proof. The big crime and the highprofile defendant are its targets. Anything less is not likely to be worth the time, effort, and expense that prosecution requires. The ICC is not designed to address large numbers of defendants who carry out the "most serious crimes" but those who plan and order them. The political and legal risks posed by the ICC are substantial. On the one hand, its presence may lead countries to inaction. Rather than address highly charged matters, some nations may refer serious criminal misdeeds to the ICC. The ICC has such limited resources and such cumbersome procedures that it can never hope to address any but a small fraction of the gravest cases. All other cases will have to be handled in national courts. If the nations involved will not act, many crimes will go unexamined and unpunished. On the other hand, the ICC may take on too many cases, the wrong cases, or unusually difficult cases. The ICC's judges will not necessarily be outstanding jurists. The judicial selection process is political and provides no guarantee of excellence. The nineyear limit onjudicial tenure allows only a modest period for the development of expertise. Cases like that tried at Nuremberg require great judges and prosecutors; there is no guarantee that such individuals will be available at the ICC. Moreover, there will be great pressure on both the prosecution and the court to be "balanced" in their approach to trying international conflicts. This pressure may mean, as in the Balkans, that a prosecutor must indict individuals from all sides ofa conflict. This approach may wreak political havoc and was one of the few meritorious objections by the United States to the ICC. Finally, the ICC has no forces at its disposal to seize defendants or gather vital information. Such a weak tribunal is at the mercy of the states that will be asked to carry out its mandates. American opposition to the ICC is a serious impediment to its success. Although President Clinton signed the Rome Treaty in the waning days of his presidency, President George W. Bush declared that the United States has "unsigned." Attorney General John Ashcroft publicly declared that the ICC poses a threat to the United States, and his sentiments have been echoed by other politicians. The United States has been keen on the use of international tribunals since the end of World War II; it was a staunch supporter of Nuremberg, the ICTY, and the ICTR; but it has never been willing to allow its own conduct to bejudged in an international forum. When faced with that prospect in the International Court ofJustice (ICJ) because of a claim lodged by Nicaragua, the United States severed all ties with the ICJ. American opposition will, doubtless, impede the progress of the ICC. Whether the court can overcome that opposition remains to be seen, especially given its need for 264 Chapter 5 assistance in gathering evidence, arresting defendants, and financing its costly operations. The Two·Track Approach to Prosecution The number and diversity of cases involving a two-track approach to prosecuting atrocities is striking, especially given the difficulties encountered by the ICTY and ICTR. In Belgium, after a lengthy trial involving more than 170 witnesses, 4 Rwandans, including 2 Catholic nuns, were convicted by a Belgian jury of atrocities committed during the 1994 genocide. At the European Court of Human Rights, Germany won approval of its having tried and convicted the East German communist leader, Egon Krenz, for crimes committed before the fall of the German Democratic Republic. What explains the growing enthusiasm for the two-track, didactic trial given its high costs and great risks? Widening and deepening respect for the "rule of law" is certainly one of the factors underlying this development .47 The enforcement of international human-rights norms since Nuremberg has been associated with trials that provide a visible and public means of rejecting the oppressive past and proclaiming human freedom and dignity. The trajectory of these developments is important. As successful prosecutions build on one another, limits on human-rights abuses are strengthened. Progress is not inevitable, however. To encourage the growth of legal constraints, each case must reinforce the power of law. The expanding presence and increasing influence of the popular press has had a significant influence in increasing demand for didactic trials. Atrocities in Bosnia dragged on unabated until Roy Gutman and the ITN documented and disseminated news of the horrifying events occurring in the Omarska prison camp. International outcry led to U.N. action and the establishment of the ICTY. The world press provides a more effective means of tracking gross violations of human rights than ever existed before. Today it is almost impossible to hide a mass killing from the world. Once atrocity is discovered and graphically portrayed, it is hard for governments and the United Nations to ignore. A third factor stoking the popularity of didactic prosecutions is the growing power and effectiveness of NGOs. For some time, groups like Amnesty International, Human Rights Watch, and a host of others have been campaigning on behalf of human rights. The big, didactic trial is one of their favored responses to gross violations of those rights. At the Rome conference, 238 NGOs came together to form a consortium, the Coalition for an Independent Criminal Court (CICC). In addition to human-rights groups, the association included the American Bar Associ- Prosecution of Genocide Perpetraton 265 ation, B'nai B'rith, and numerous feminist organizations. Several analysts concluded that the efforts of the CICC and ofNGOs more generally were crucial to the establishment of the ICC. The popularity of the two-track trial suggests a world interested in finding ways to address atrocity effectively. As the progeny of Nuremberg have amply demonstrated, the high financial and political costs, cumbersome character, and legal vulnerabilities of big, didactic trials make them an unsatisfactory response to genocide. Assuming that the adversarial mechanism remains the approach of choice (and there are persuasive arguments that it should), how might it be improved to avoid some of these pitfalls? One of the greatest burdens on atrocity trials has been their need to tell and retell the complex history from which atrocity arose and to answer a myriad of legal questions about that history. In prosecutions for genocide, the proceedings must explore whether the conflict underlying the crimes was international in scope, whether the crimes were committed with the intent to destroy a national, ethnic, racial, or religious group, and whether the crimes were widespread and systematic. The process requires vast bodies of evidence and careful expert analysis. To insist that it be done in every trial is to guarantee that trials will be few, slow, costly, and vulnerable to dramatic failure. The world has found another way to examine the "big picture." Since 1974, more than twenty truth commissions have been set up around the world to document atrocities suffered by citizens victimized by their own governments or those seeking to seize power. The truth commission is not a new idea. Mter the First World War, the Lansing Commission, headed by the eponymous American secretary of state, proposed such a body as an alternative to the prosecution of Kaiser Wilhelm II. A truth commission investigates the facts underlying a particular outbreak of violence and lawlessness to fashion an authoritative report. It is not primarily intended to focus on the misdeeds of particular individuals. Priscilla Hayner, one of the leading experts on truth commissions, has suggested that they share four fundamental characteristics: a focus on the past; a commitment to investigate a pattern of abuse rather than isolated criminal acts; a limited period for investigations, generally six months to two years; and official government sponsorship.48 Truth commissions have operated successfully in a number of countries and exposed the unlawful conduct of a range of oppressive regimes. The most ambitious and famous of all truth commissions was established by South Mrica to examine criminal behavior during the apartheid era. The Truth and Reconciliation Commission focused on the crimes of both the minority white government and the opposition Mrican National Congress (ANC). It gathered statements from more than 20,000 victims. Perhaps its most unusual feature was its power to grant 266 Chapter 5 amnesty to those who made full and complete confessions of politically motivated crimes. Its reach was enormous, and its disclosures about apartheid created a powerful historical record. One of the great strengths of the truth commission is its ability to address a large volume of criminal activity in the ambit of a brief investigation . In two years, the South Mrican commission heard from 20,000 victims and examined amnesty applications from more than 8,000 individuals . Truth commissions can accomplish a great deal in a short period of time because they are not charged with building legal cases against individuals but with examining the big picture. Their goal is to identify and describe the most significant historical matters rather than amass the details necessary to satisfy the demanding standard of proof required for criminal conviction. Critics have dismissed truth commissions as cut-rate justice relied on in times of transition to placate those demanding prosecution of prior regimes. This criticism fails to appreciate that truth commissions may establish the foundation for prosecutions. No prosecuting entity like the ICTY or ICTR could ever manage the same sort of speed or breadth of examination. There may be real advantages in linking the work of truth commissions and prosecutors. Rather than setting out to build their own cases from scratch, prosecutors could rely on truth-commission findings, which could be made admissible in court under the rubric ofjudicial notice. This practice might substantially shorten trials and fix a record for repeated use. Moreover, such an approach might help prosecutors focus their own work on the named defendants rather than on the vast panorama of history. The criticisms that might be made ofsuch proposals deserve consideration . It might be argued that reliance on truth-commission reports undermines the right to a fair trial by denying the defendant an opportunity to confront the evidence against him or her. This claim may have some substance, but trials could be structured to allow defendants to challenge the presumptive correctness of truth-commission findings. In addition, the use of truth-commission evidence should be confined to points of a general nature rather than the specific criminal conduct of any accused individual. Facts establishing a court's jurisdiction or warranting the application of a particular criminal statute, such as genocide or crimes against humanity, might be accepted, while those indicating the involvement ofa specific defendant in a specific crime might require live testimony and documentary proof. Another criticism of truth commissions is that they are one-sided in their fact gathering, focusing only on the wrongdoings of the ousted regime. To guard against one-sidedness, truth commissions must make special efforts to ensure that their work is balanced and objective. Some members of the commission's staffshould Prosecution of Genocide Perpetraton 267 be specifically charged with serving as "devil's advocates." There was great wisdom in South Africa's decision to balance the proceedings by exploring the misdeeds of the ANC as well as those of the white government . Such an approach helps insulate proceedings from the accusation that they are victor's justice. Priscilla Hayner has argued that coordinating truth commissions with prosecutions undermines the ability of truth commissions to do their work effectively. She contends that it will be exceedingly difficult for any truth commission to issue a full and fair public report ifit is expected to feed its product directly to prosecutors. There will be pressure to withhold information so that the prosecution's strategy and evidence are not disclosed prematurely. Alternatively, the truth commission may be inclined to create a dramatic report that helps generate social support for vigorous prosecutions. Hayner argues that the development of evidence of real utility to prosecutors takes far longer than the time usually allotted for truth-commission investigations. She suggests that witness cooperation with truth commissions is often premised on the understanding that the materials provided will not be used to prosecute the witness. If a prosecutor is linked to the truth commission and may act against truth-commission witnesses, those witnesses are likely to decide to withhold their testimony. This problem may be addressed by an agreement that promises not to use divulged materials against the cooperating witness. Similar guarantees are often offered to witnesses in grandjury proceedings and congressional hearings in the United States. To strengthen her argument against direct cooperation between truth commissions and prosecutors, Hayner cites the experience of the Ethiopian Truth Commission. Set up with the avowed dual purposed of serving as a truth-finding body and helping Ethiopian prosecutors secure the conviction of wrongdoers from the ousted Mengitsu regime, the Ethiopian commission has never issued a report even though it has heard from hundreds of witnesses over more than five years. Hayner concludes: "Ethiopia's attempt to merge the two goals of broad truthtelling and criminal prosecutions into one process is clearly problematic , and has been criticized by international observers."49 These criticisms of coordination are well founded. Yet, the most powerful criticisms may be answered by the use of appropriate protective measures with respect to the use of information obtained and by more general "rules of the road" proscribing overlapping work regarding specific events or defendants. Moreover, the key objective in any postconflict investigation is to serve the best interests of the new society. Neither truth commissions, with their broad analyses of history, nor a circumscribed number of trials can be expected, alone, to satisfy the full range of social needs. A properly regulated combination of the two can 268 Chapter 5 establish a lasting historical record, reach a significant number of victims and perpetrators, and produce an acceptable number of prosecutions . Of course, to achieve these objectives the truth commission and the legal process must both be properly staffed and managed. Truthcommission members must be neutral figures whose integrity is beyond question. They must be given adequate investigative authority so that their inquiries can be thorough and complete. They should be authorized to question witnesses under oath and subpoena critical documentary materials. They must be independent of government control and not identified with any political faction. They should be charged with the obligation of making public findings supported by solid evidence within a limited amount of time. Improving the Prosecution of Atrocity Perpetrators Atrocity trials could readily be improved by reforming their rules of procedure and evidence. Proceedings must be streamlined. Limits should be imposed on the amount of time each side is permitted to present its case. The number of witnesses and documents should be strictly controlled . Repetitive testimony should be restricted. No international prosecution should run more than nine months-the time it took to try the Nuremberg case. Although this limit is far below the average in recent prosecutions, it remains reasonable. Unless such restrictions are enforced, the system will collapse under its own weight. Taking three years to try Slobodan Milosevic is unacceptable. Either people will forget about the trial or their sympathies will shift to the beleaguered defendant . Big atrocity cases must be carefully shaped during the pretrial process. As is starting to be the practice at the ICTY, a judge should be assigned to work with the prosecution and defense to simplify and expedite matters before trial.Judges must insist on restriction of the issues to be aired and impose strict rules of relevance in the presentation of evidence. The looseness or total absence of rules ofevidence has created serious problems in international atrocity cases. Left to their own devices, judges responded in an ad hoc manner to the difficult evidentiary questions that arose, resulting in inconsistent rulings and, all too frequently, a willingness to entertain dubious evidence. Everything turns on who the judge is, which side seeks admission, and what pressures are exerted at the moment. All the trials examined here suffered serious evidentiary problems. Where vast atrocities are being considered and the world is watching, a spur-of-the-moment approach to fairness simply will not do. Reasonable and clear evidentiary guidelines are essential, especially to Prosecution of Genocide Perpetrators 269 control prosecutorial offerings that, almost inevitably, will contain potentially prejudicial information. The rule prohibiting hearsay evidence needs far stricter enforcement. Secondhand evidence by its very nature frustrates cross-examination. Infamous miscarriages ofjustice have been based on hearsay. Although some sorts of hearsay should be admissible, especially when no other evidence is available, a clear rule needs to be established and its limits respected. Article 6 Section 3(d) of the 1950 Convention on Human Rights is correct in declaring (as does the Constitution of the United States) that it is a fundamental right of the defendant in a criminal case "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf." Atrocity trials since Nuremberg have repeatedly violated this principle. These trials also suffered because of an absence of respect for such evidence rules as authentication, which requires a demonstration of the origins of documents, and relevance, which requires a solid link between proof and the defendant's particular crimes. Disregarding the process of authentication has allowed prosecutors to rely on questionable materials, as well as generating lengthy fights about the genuineness of documents. Most authentication questions can be resolved in pretrial proceedings. The effect of disregard for relevance rules has been trials bloated with prejudicial, misleading, and peripheral materials that can bias or confuse even the most experienced judges. Relevance rules are essential to maintain courtroom discipline and focus. The absence of evidentiary restrictions has led courts in atrocity cases to act incautiously with respect to other problematic proofs. By far, the most dangerous evidence mishandled by the courts has been eyewitness identification. Virtually every sophisticated criminal-justice system has recognized the need for care in the handling ofsuch material. Yet courts trying international atrocity cases have often discarded measures designed to protect against misidentification. Neither the seriousness of the charges nor the poignancy of the victims' testimony warrants the abandonment of rules that guard against wrongful conviction. Many atrocity trials have used statements from the defendant that appear to suggest his guilt. In the absence of informed and voluntary confessions, which are entirely legitimate, prosecutors have regularly sought to trick defendants into making damning statements during pretrial proceedings . The Demjanjuk prosecutors resorted to jailhouse spies, while the Eichmann prosecutors used intense and manipulative interrogation. If atrocity trials are to persuade, they must eschew such pressure tactics. Such tactics blossom in the absence of evidentiary constraints. Finally, atrocity trials work best when the accused are the most significant figures among a host of perpetrators. The defendants at Nurem- 270 Chapter 5 berg were the most prominent surviving leaders of the Third Reich and clearly appropriate targets for a high-profile prosecution. Eichmann too was an appropriate defendant because he organized the murder of millions ofjews in occupied Western Europe. Neither Demjanjuk nor Finta was a figure of major significance, and choosing to prosecute them was the first step down a path toward disaster. Martha Minnow of the Harvard Law School has observed that atrocity trials "depend for the most part on symbolism."50 Selecting low-level defendants will seldom send an appropriate symbolic message. The most culpable leaders are the people to pursue; otherwise, the convicted will seem little more than scapegoats, the losers of a justice-system lottery. The problem since Nuremberg has been to determine how to prosecute a small number of important criminals while addressing the larger body of wrongdoers. Nuremberg tried to solve this problem with a conspiracy charge and the indictment of specific organizations. The plan was then to parlay the findings of conspiracy and organizational wrongdoing into convictions of those in the lower echelons of the hierarchy. The strategy of guilt by association was rightly rejected by the Nuremberg tribunal and its successors. A massive atrocity trial cannot be used to condemn large numbers of defendants. Despite virtually unlimited resources, the American prosecutors under General Telford Taylor's direction were, over the course of four years, able to prosecute approximately two hundred prominent Nazis in the successor trials following Nuremberg. Similarly small yields have resulted elsewhere when the prosecution has begun with a big case. A more successful strategy has placed defendants in differentiated categories . The most serious offenders, those who planned mass atrocity, may be tried in elaborate proceedings. Lesser criminals can be dealt with by more streamlined processes. This approach was adopted de facto in postwar Germany, where many lesser criminals faced either rapidmoving national prosecutions or scrutiny pursuant to the de-Nazification program. Similar approaches have been formalized in Rwanda and Ethiopia , and a stratified approach to prosecution was outlined in the Dayton Accord that ended the wars in the Balkans. Offenders are differentiated and accorded prosecutions proportional to their crimes. The imperative of selection counsels against massive trials for such accused as Demjanjuk, Finta, and Tadic. The application of inappropriate processes is likely to lead either to a backlash against the underlying law or to an exaggeration of the defendant's significance. While the Demjanjuk case was fatally flawed by the inflation of the defendant into Ivan the Terrible, the Finta case provoked a powerful backlash. The Canadian Supreme Court interpreted Canadian statutes in such a way as to demand the very highest level of proof of responsibil- Prosecution of Genocide Perpetrators 271 ity for atrocities. According to the Supreme Court, only those who knowingly and purposefully inflicted immense suffering could be convicted under Canada's law. That ruling left virtually no room to address petty functionaries like Finta. The Canadian high court's goal was entirely legitimate, but it yielded a schizophrenic reading of Canadian law. Too vast a trial involving too minor a defendant undermined not only the prosecution but the law upon which it was based. Threats to the International Prosecution ofAtrocities Since the horrific attack on the World Trade Center on September 11, 2001, a number ofdevelopments have threatened to undermine the evolution of effective methods for the prosecution of those responsible for atrocities. Perhaps the most troubling of these is the growing resistance of the United States to clearly established international law regarding the prosecution ofsuch cases. In the wake of the fighting in Mghanistan and Iraq, the United States has considered the creation of military tribunals to prosecute those accused of a wide range of criminal acts. The rules proposed for the operation of these military tribunals represent nothing less than a flight from the international rule oflaw, from public proceedings, and from the entirejudicial tradition that began at Nuremberg . The rules of the proposed tribunals show only grudging recognition of the application of the Geneva Conventions regarding the prosecution of those designated prisoners of war. Several key requirements of the conventions are simply ignored, including the requirement ofan appellate process identical to that available to members ofthe military of the detaining power. The refusal of the United States to allow appeals that might eventually find their way into the civilian courts suggests an evasion ofjudicial review and a belief that the United States can act as it sees fit with those it has captured by force of arms. The new military-tribunal regulations state that the military officer presiding over tribunal proceedings or the secretary of defense can choose to close a trial to the public and the press whenever it is determined that closure is necessary to protect "classified or classifiable" information; to safeguard participants in the hearing process; to shield intelligence and law-enforcement sources, methods, or activities; or to defend "other national security interests." Such broad discretion to prevent public scrutiny raises the most serious questions about fairness. These matters pale into insignificance in light of regulations that allow the tribunal to exclude the defendant and any private counsel he may have employed from hearing certain evidence at his closed trial. A defendant may be convicted and even executed on the strength of evidence of which he is never informed and of which his chosen counsel 272 Chapter 5 has absolutely no knowledge. It appears from the regulations that only a military lawyer assigned to the defendant by the court may be allowed to see or hear such evidence. The risks of the use of secret evidence should be abundantly clear. This provision represents a denial of the basic rights specified as inalienable by the Constitution of the United States. The tribunal process might be safeguarded from such dangers through the same appellate review by civilian courts that is vouchsafed to all American military personnel. The process created by George W. Bush's administration is designed specifically to avoid all established legal processes. Through the closure, secrecy, and appeal regulations seems to run an antipathy to traditional legal procedures and a flight from the demands of law and fairness. Such a flight is also apparent in recent statements by the American government that, regardless of the outcome of trials, the American military may continue to hold even acquitted detainees indefinitely. Law, courts, and trials seem to count for nothing. Does habeas corpus not apply to prisoners held without charges or legal justification? The U.S. government has searched the world to find detention facilities, such as the military base at Guantanamo Bay, Cuba, which are out of reach of the courts' authority. These steps all bode ill for the extension of the rule of law and for progress in addressing the worldwide problem of genocide and other heinous crimes. The U.S. approach to detainees in its so-called war on terrorism throws the world back into a pre-Nuremberg context where might makes right and legal niceties are dispensed at the largesse of the victors. This retreat from the rule of law has not been well received in the rest of the world. Spanish Magistrate Balthasar Garzon has stated that no country in Europe will extradite detainees to the United States if there is any significant possibility that they will be tried before a military tribunal.Judge Garzon's statement is premised on the view that the rules of the proposed military tribunal violate the European Convention on Human Rights. The U.S. approach to those it labels terrorists is one example of the way perceived national interests may interfere with the fashioning offair and effective international rules to prosecute atrocity. Gary Bass, in a powerful volume about war-crimes tribunals titled Stay the Hand of Vengeance , has traced how national governments over the course of the last century have pursued selfish interests rather than justice when dealing with atrocity cases. By examining efforts to prosecute Kaiser Wilhelm II for crimes allegedly committed during the First World War, the Turkish officials responsible for the genocidal assault on Armenians, the Nuremberg defendants, and those accused by the ICTY, Bass has demonstrated how governments contemplating trials make strikingly selfish calcula- Prosecution of Genocide Perpetraton 273 tions. If there is a significant chance that civilians or troops of the prosecuting nation will be exposed to serious danger because of resistance to or backlash caused by atrocity prosecutions, they tend not to press for trials. Thus neither the kaiser nor the Turks stood trial. By contrast, at the end of the Second World War when Germany lay prostrate before the Allies, the Nuremberg proceedings were launched.51 Bass's theory also helps explain why NATO was so slow to seize indicted war criminals and bring them before the ICTY. If a selfish calculus is allowed to hold sway, it undermines effective international action against atrocity. Although an international body like the ICC is unlikely to be sidetracked by selfish national agendas, there is nonetheless a significant risk that the ICC will be at the mercy of self-absorbed nation-states, as was so long the case with the ICTY. Other sorts of national interests may also impede international legal progress concerning atrocity. In both Cambodia and Mozambique, substantial resistance exists to legal examination of the atrocities that rent the fabric of these societies, although plans for trials now seem to be moving ahead in Cambodia. In Mozambique, a disastrous civil war marked by atrocities on all sides has been settled amid general agreement that no accounting should be sought. By examining these cases, Priscilla Hayner has identified a number of reasons for resistance to trials : people fear that trials will lead to renewed violence, no political party or faction is anxious to have its past activities closely scrutinized, society has more urgent needs than protracted proceedings, and cultural attitudes favor processes other than the law to address misconduct .52 All these considerations underscore the power of social interests to deter the pursuit ofjustice. At the beginning of the twenty-first century, the future of international prosecutions for genocidal and other atrocious crimes hangs in the balance. On the one hand, growing respect for the rule of law pulls us toward the wider application of effective international approaches. On the other hand, individual nations forcibly assert their sovereignty and protect selfish national objectives. If we choose, we can learn from Nuremberg and its successors to design more effective responses to genocide and other atrocities. ...