A Problem From Hell

by Samantha Power

  Saddam Hussein plundered a peaceful neighbor, held innocents hostage, and gassed his own people. And all . . . of those crimes are punishable under the principles adopted by the allies in 1945 and unanimously affirmed by the United Nations in 1950. Two weeks ago, I made mention [of] the Nuremberg trials. Saddam Hussein must know the stakes are high, the cause is just, and today, more than ever, the determination is real.13

  The idea picked up steam in April 1991 after the Gulf War had been won, when reports circulated that Hussein had again begun killing Kurdish civilians. On the prodding of a number of European foreign ministers, international lawyers recommended either the creation of a criminal court or the filing of genocide charges under the genocide convention before the International Court of Justice. German foreign minister Hans-Dietrich Genscher became the leading spokesman for prosecuting Hussein, raising the idea repeatedly in public speeches throughout 1991.14 Despite this burst of enthusiasm and the meticulous documentation of the Anfal campaign supplied by Human Rights Watch, neither the United Nations nor the individual member states followed up. Only with the crimes committed in the former Yugoslavia did a war crimes tribunal actually come into existence.

  The Former Yugoslavia

  Mirko Klarin, a leading Yugoslav reporter, may have been the first to urge that the international community prosecute Balkan war criminals. On May 16, 1991, even before the wars in Slovenia and Croatia had begun, and a full year before the Bosnian conflict, Klarin presciently wrote a spirited appeal in the Yugoslav daily Borba (“Struggle”) entitled “Nuremberg Now!” Klarin derided the Yugoslav political leaders who said they would deal with crimes against humanity and war crimes after the conflict subsided. It was these very leaders, Klarin insisted, who were inciting ethnic violence and stirring the hate that would cause atrocities. “Would it not be better,” he asked, “if our big and small leaders were made to sit in the dock instead of at the negotiating table?” He proposed that “impartial foreign experts in the international laws of war” sit on a tribunal—“no matter how small and modest”—to try those leaders responsible for the crimes against peace and crimes against humanity that had already been committed. “There is no reason to leave the Yugoslav mini-Nuremberg for when ‘this is all over,’” Klarin wrote. “It would be much more cost-effective to do it before, or rather, instead of.”15

  But Klarin was ignored. And the wars in Slovenia, Croatia, and Bosnia followed. With the Bosnia carnage carried out in full view of the international media, Western leaders frequently responded to the outrages by warning that perpetrators of atrocity and war crimes would be held “individually responsible.” Human Rights Watch, which was systematically recording evidence of the crimes, began calling for the establishment of a court in July 1992. Because the concentration camps were exposed a few days later, the appeal resonated. On August 13, 1992, the United States, under pressure from elite opinion-makers, joined a Security Council request for states and international humanitarian organizations to submit “substantiated information” concerning war crimes.16 It was around this time that candidate Clinton helped shame President Bush into compiling all available evidence on the concentration camps. The Holocaust, Clinton said, had taught us the costs of silence in the face of genocide. He urged, “We must discover who is responsible for these actions and take steps to bring them to justice for these crimes against humanity.”17 Senior European diplomats again proposed the creation of an international tribunal. German foreign minister Klaus Kinkel picked up where Genscher, his predecessor, had left off. At the EU-UN conference held in London in late August 1992, he delivered a speech in which he declared, “What is happening here is genocide. The community of nations will pursue all crimes no matter who has committed them.”18 But “pursuit” and “responsibility” were vague terms. Although a state could use the International Court of Justice to charge another state with genocide, no forum yet existed to try individuals for atrocities.

  In October 1992 momentum picked up. On the recommendation of Tadeusz Mazowiecki, the UN Human Rights Commission’s special rapporteur for the former Yugoslavia who later resigned over Srebrenica, the allies called for the creation of an impartial commission of experts to assess the information gathered.19 The United States lobbied quite deliberately for use of the term “commission.” With an eye to stirring associations with the Holocaust, American international lawyers thought the name would link the new effort to the Allied War Crimes Commission, the ineffective World War II body run by Herbert Pell that nonetheless served as a precursor to the Nuremberg tribunal.20

  In December 1992, as the Bush administration prepared to leave office, acting Secretary of State Eagleburger gave the UN commission a big boost by naming names in Geneva. But whatever its newfound rhetorical support from the United States, the commission lacked the financial and political backing, the personnel, and the security it needed to conduct independent, timely investigations into atrocities. Indeed the commission’s name seemed aptly chosen, as it looked destined to duplicate the failure of Pell’s commission. Britain and France were at the time more sympathetic to Belgrade than were Germany or the United States. Prime Minister John Major and President François Mitterrand tried to curb the independence of the commission, as they believed holding killers accountable would interfere with their search for a negotiated settlement. Pursuing justice, they said, would delay peace.21

  But others insisted that there could be no long-term peace in the Balkans without justice. Spurred on by the leadership of Cherif Bassiouni, a professor of international law and a relentless crusader for international justice, the UN commission plowed ahead and gathered a bounty of refugee testimony and other evidence of atrocity. In February 1993 the commission’s five lawyers presented an interim report to the UN secretary-general in which they defined “ethnic cleansing,” the term that was then being used as a kind of euphemistic halfway house between crimes against humanity and genocide. The commissioners found that ethnic cleansing—“rendering an area wholly homogenous by using force or intimidation to remove persons of given groups”—had been carried out “by means of murder, torture, arbitrary arrest and detention, extra-judicial executions, rape and sexual assault, confinement of civilians in ghetto areas, forcible removal, displacement and deportations of civilians, deliberate military attacks or threats of attacks on civilians and civilian areas, and wanton destruction of property.” They said such crimes constituted crimes against humanity and might well be considered genocide under the convention. They also formally raised the possibility of setting up a UN tribunal to try these crimes. In February 1993 the members of the Security Council, under pressure from human rights organizations and a restless public and no longer paralyzed by the Cold War veto, voted to establish a UN court in The Hague.

  We will never know whether a different war in a different place at a different time would eventually have triggered a similar process. But one factor behind the creation of the UN war crimes tribunal for the former Yugoslavia was the coincidence of imagery between the Bosnian war and the Holocaust. Those who lobbied on behalf of prosecuting Bosnia’s perpetrators—such as the State Department’s Jon Western, Congressman Frank McCloskey, UN ambassador Madeleine Albright, and countless others—were both motivated and aided by memories of Nuremberg. The visual link that people made between their memories of Hitler’s death camps and their glimpses of Serb-run concentration camps in Bosnia sparked cries for justice. As public pressure mounted for American and European leaders to “do something” to stop the Bosnian carnage, creating a court to punish perpetrators seemed a low-cost, low-risk way for Western states to signal that despite their opposition to military intervention, they were not indifferent to Bosnia’s suffering.

  If the memory of Nuremberg helped sweeten allied and UN officials on the idea of a court in 1992 and 1993, Nuremberg would also provide the foundation for the Hague court’s jurisprudence. Its importance in aiding German de-Nazification and reintegration in Europe was widely hailed as an indica
tor of how the former Yugoslavia, too, could and would move forward after its wars. Even the physical contours of the courtroom in The Hague were modeled on those of Nuremberg’s Palace of Justice. And the white bibs worn by the 1990s prosecutors and defense lawyers seemed deliberately chosen to harken back to the UN tribunal’s functional parent.

  Rwanda

  It was a year after the Hague tribunal came into existence that Rwandan Hutu militants and their foot soldiers butchered some 800,000 of their Tutsi and moderate Hutu compatriots. With a UN court in place to hear charges related to the killing of some 200,000 Bosnians, it would have been politically prickly and manifestly racist to allow impunity for the planners of the Rwandan slaughter, the most clear-cut case of genocide since the Holocaust. The Security Council thus passed a resolution establishing a tribunal to prosecute Rwanda’s perpetrators. In order to set up a tribunal under its jurisdiction, the Security Council had to show a “threat to international peace and security” so as to override the UN charter’s ban on interference in a state’s domestic affairs. This had been manageable for the former Yugoslavia because Serbia had effectively invaded Bosnia, its internationally recognized neighbor. Rwanda was tougher because the massacres there had taken place internally. Nonetheless, the Security Council found that the spillover of Rwandan refugees into neighboring countries meant that as in the former Yugoslavia, the atrocities in Rwanda, too, constituted threats to international order. Atrocities within a state were thus found to trump the UN charter’s traditional ban on violating state sovereignty.

  The Security Council voted 14–1 to set up the court, which would be seated in Arusha, Tanzania, the scene of the once-promising peace process between the Hutu and Tutsi leaders.22 Rwanda, run mainly by Tutsi rebels and survivors of the genocide, was the one country that voted against it. Rwandan officials believed the killers should receive the death penalty, but UN rules forbade it. Rwandan leader Paul Kagame said in the aftermath of the arrest of the genocide’s ringleader, Théoneste Bagosora: “Belgium lost ten men here compared to one million we have lost at the hands of this man. And the tribunal can only give [Bagosora] a life sentence, while we are sentencing smaller figures to death. He should be tried in front of the aggrieved country, and if found guilty, he should hang.”23 Fearing judges from certain states (like France and Belgium) would be biased, the Rwandan government also opposed holding trials outside Rwanda. The peeved Rwandan representative on the Security Council said a “tribunal as ineffective as this would only appease the conscience of the international community rather than respond to the expectations of the Rwandan people.”24 The results have been mixed.

  In 1998, in the first genocide case ever before an international criminal tribunal, Pierre Prosper, a thirty-five-year-old African American prosecutor from Los Angeles, attempted to convince the court that sexual violence against women could be carried out with an intent that amounted to genocide. Prosper set out to prove that Jean-Paul Akayesu, the Hutu mayor of Rwanda’s Taba commune, attempted to destroy the Tutsi by raping the women. Downplaying the letter of the genocide convention, Prosper returned to its spirit. He introduced the court to Lemkin and offered a kind of legislative history, arguing, as so many U.S. Supreme Court justices have done with regard to the U.S. Constitution, that the genocide convention was a “living document.” He pointed out the importance of interpreting the law broadly since humanity might yet stoop to lower depths. It was, in lawyerspeak, a case of first instance. “For me, the question of whether Akayesu committed genocide turned on the word ‘destroy.’ What did ‘destroy’ mean?” Prosper recalls. “The fact that the delegates fifty years before had overlooked ‘destroy’ was my hook to bring back Lemkin. If I could give that word meaning, I knew I could bring the convention to life.”

  Prosper prepared draft upon draft of the definition of the word “destroy.” In the end he settled upon one that equated “destruction” with attacks on the “very foundation” of the group, the “debilitation” of a group to such an extent that the remaining members could no longer contribute in a meaningful way to society. Prosper echoed Lemkin when he insisted, “Complete annihilation or intended annihilation of a group . . . need not occur.” He argued that destruction could take place if people were killed but also if the intellectual class of a group were eliminated or if the women were systematically raped. Prosper believed that a group could physically exist, or escape extermination, but be left so marginalized or so irrelevant to society that it was, in effect, destroyed.

  On September 2, 1998, the UN tribunal for Rwanda accepted Prosper’s rationale and issued its first ever courtroom verdict. The systematic rape of Tutsi women in Rwanda’s Taba commune was found to constitute the genocidal act of “causing serious bodily or mental harm to members of the group.” As Taba’s former mayor winced slightly, UN judge Laity Kama proclaimed: “The accused, Jean-Paul Akayesu, you are declared guilty of genocide.”

  The Rwanda court’s business was only just beginning. In the same remote Tanzanian town of Arusha where Akayesu was convicted, the once mighty Colonel Bagosora was whiling away his time in a detention facility, awaiting his day in court. The man who had made a mockery of Dallaire’s good offices, who had shirked the phone calls of U.S. Deputy Assistant Secretary Bushnell, and who had masterminded the killing of some 800,000 Rwandans, had been apprehended in March 1996. As he had awaited transfer to the UN tribunal, Bagosora prepared a rambling twenty-eight-page defense in which he took the opportunity to express his antipathy for the Tutsi, who had only been partially eliminated: “There never was a Tutsi people, neither in Rwanda nor in Burundi nor anywhere else,” the Rwandan colonel wrote. “They are immigrants who should moderate their greedy and arrogant behavior.”25 As of November 2001, Bagosora was one of fifty-three defendants in UN custody in Arusha; eight had been convicted of genocide. If they had not been apprehended, they would likely still be plotting the murder of Rwandan Tutsi.

  Cambodia

  When trials began for perpetrators from the former Yugoslavia and Rwanda, eyes quickly turned to other countries that had suffered catastrophic violence. It was not long before Western governments, the UN, and Cambodian NGOs began urging that a similar mechanism be put into place to try the aging leaders of the Khmer Rouge.

  Cambodia advocates had been lobbying for accountability for some time. Throughout the 1980s, Ben Kiernan, a Khmer-speaking Yale historian who had documented KR atrocities, and Gregory Stanton, an anthropologist and lawyer, had attempted to convince Australian diplomats to file genocide charges at the International Court of Justice against the Khmer Rouge, which still occupied Cambodia’s seat at the United Nations. But despite this effort, and one launched in parallel by David Hawk, a human rights activist, neither Australia nor any other state had been willing to take up the task. Kiernan and Stanton had then formed an umbrella organization known as the Campaign to Oppose the Return of the Khmer Rouge (CORKR), which attempted to streamline the efforts of nongovernmental groups trying to promote justice

  Beginning in 1990, the coalition, operating out of the Methodist building on Capitol Hill in Washington, expanded. It took its efforts to the international level but also began targeting particular congressional districts for op-ed pieces and petitions. Virginia Senator Chuck Robb and New York Congressman Stephen Solarz convened hearings on Capitol Hill that legitimized the cause. Peter Cleveland, a staffer in Senator Robb’s office, consulted with Kiernan and drafted the first U.S. legislation calling for the eventual prosecution of the Khmer Rouge. In early 1994 the Clinton administration assigned Charles Twining, who was by then the ambassador-designate to Cambodia, to work with lawmakers and NGOs to aid Cambodia’s justice efforts. Craig Etcheson, the executive director of CORKR, was stunned by the turnaround in the U.S. government’s attitude. He recalls: “Previously the State Department had said there would not be any international tribunal, and they wanted to know what I was smoking and where they could get some. But almost overnight they went from being utterly opposed to all
kinds of different bureaus becoming engaged.”

  In 1994 the U.S. Congress passed the Cambodian Genocide Justice Act. The bill set aside $500,000 to collect data on KR crimes against humanity and genocide and to encourage the establishment of a national or international tribunal for the prosecution of perpetrators. More important, it made support for a tribunal official U.S. policy, a marked departure from more than a decade of diplomatically backing the KR.26 Kiernan won the open-bid competition for the funds and set up the Cambodia Genocide Program at Yale. In 1995 he hired Youk Chhang, a Cambodian, to help run the program’s field office, the Documentation Center of Cambodia, which began assembling evidence of the atrocities in order to establish a historical record and to create political pressure for trials. Stanton, who had recently begun working at the State Department, helped convince the human rights bureau there to provide an additional $1 million to fund the documentation effort.

  Documentation Center director Youk Chhang’s life might be divided into three phases. During the “genocide years,” between 1975 and 1979, he not only lost his sister and his father but, as an eager fifteen-year-old, he cheered on the killing of a man and woman who committed the pernicious crime of falling in love without official permission. He is haunted by the memory of heckling the young couple as they were beaten with bamboo blows to the back of the neck and buried alive. During his “American years,” he moved from a refugee camp in Thailand to Dallas, Texas, where he began work for the city government and developed an obsession with America’s fallen icon John F. Kennedy. The current phase, if he has his way, will constitute the “justice years.”