Vol. 10 No. 2 (February 2000) pp. 148-151.

PROSECUTING WAR CRIMES AND GENOCIDE: THE TWENTIETH CENTURY EXPERIENCE by Howard Ball. Lawrence, KS: The University Press of Kansas, 1999. 288 pp. Cloth $35.00. ISBN 0-7006-0977-6.

Reviewed by Fran Buntman, Department of Political Science, University of Akron.

PROSECUTING WAR CRIMES AND GENOCIDE is a valuable book that provides framework to ask: what have we learned about mass murder in the twentieth century that should shape law and politics in the twenty-first century? Howard Ball's answer traces two developments. The first is the history of genocide, "from the German destruction of the Herero in [in then South West Africa, now Namibia] in Africa at the turn of the [twentieth] century to the Serbian slaughter of Kosovars at its end" (p. 8). The second development is the uneven emergence of principles and practices of international law designed to challenge war crimes, genocide, and crimes against humanity. A central concern animating this book is Ball's argument that the United States needs to support embrace the International Criminal Court (ICC). The treaty that establishes the ICC was voted for in Rome by 120 nations, including Russia, France, and Great Britain. The United States, China, Libya, Iraq, Qatar, Yemen, and Israel (arguing the agreement favored the Palestinian Liberation Organization) voted against it.

Most perpetrators of the twentieth century's twenty-plus genocides have not been brought to justice. Ball examines two such illustrative exterminations: the mass murders and intentional destruction of the Armenians by the Turks during World War I and the Pol Pot's slaughter of an estimated quarter or third of the entire Cambodian population. Genocides are planned: political leaders and elites carefully devise and implement plans for mass murder. Moreover, various external actors and factors indirectly or directly facilitate political death machines. Ball notes that: "During the administration of President Jimmy Carter (1977-1981), the United States provided military aid . . . for transshipments to Pol Pot's Khmer Rouge.... First Lady Rosalyn Carter even made a trip to the region to show U.S. support for Pol Pot" (pp. 114-115). Carter later denounced Khmer Rouge atrocities and Khmer Rouge impunity from prosecution.

Most genocides Ball examines have had, however, some judicial response to and prosecution of the perpetrators. The book traces the legal developments that emerged to bring exterminators to justice. Limits to violence in war began to be codified in the mid nineteenth century and was further formalized in multi-national meetings and agreements in The Hague in 1899 and 1907. The preamble to the 1907 treaty asserted that both "the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience." Despite identifying crimes of war, the signatories - especially

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the United States -- declined to create an international court to try alleged violations.

Post World War I attempts to prosecute war criminals, using these agreements, were strongly opposed by the US because it undermined the principle of national sovereign immunity. Peace treaties concluding World War I included new war crimes clauses and established trials and punishments for war crimes, but these treaties were not enforced. Similarly, the League of Nations offered promise and principles to reform international relations and limit war, as did various other initiatives that sought limited goals such as arms reduction and protecting prisoners of war. International political developments and ultimately World War II thwarted these developments.

World War II saw both new levels of genocidal horror and new legal- judicial responses in the form of the Nuremberg and Tokyo trials. A key legal concept used at Nuremberg, "collective criminality," criminalized being a member of a Nazi organization that contemplated, planned, or implemented illegal action. International Military Tribunals (IMTs) were established to try the Nazis in Nuremberg and the Japanese in Tokyo. In Nuremberg, charges include planning and waging aggressive war, war crimes, and crimes against humanity. The IMT for the Far East tried people for breaking international treaties by planning or waging aggressive war, for violating war's "laws and customs," and for following orders to torture and murder. The allies additionally conducted thousands of other trials of war criminals in both Europe and Asia.

Two major criticisms of the IMTs were that the trials were "victor's justice" and that defendants were tried for acts that were not previously illegal. Ball combines these criticisms, but I think they are quite distinct concerns. Victors or survivors almost always mete out Justice; perpetrators seldom acknowledge let alone judge and punish their own wrongdoing, except in compromise or in the historical hindsight of later generations. However, victors don't always have the moral upper hand, from the use of atomic bombs to the fact that "American policy makers granted immunity to over 3,600 military personnel, medical doctors, and scientists who had conducted ghastly (pseudo-medical) experiments on thousands of allied prisoners in . . . Manchuria.... The quid pro quo: the Japanese handed over to the Americans the carefully recorded and documented results of their germ and biological testing" (p. 74).

Although Ball ultimately argues against this charge, the allegation of ex post facto prosecution poses more difficulty. I understand the Nuremberg and Tokyo courts to have given four answers to this challenge. First, the Axis powers violated a series of legally binding international treaties and agreements that in general and/or specific terms outlawed actions for which the defendants were charged. Second, in addition to these agreements, at the core of the charges lay universal common-law and statutory crimes such as murder, torture, and enslavement. Third, real individuals-the defendants-not abstract governments, knowingly broke common, national, and international law and agreements. Fourth, their organizations were criminal in their raison d'etre, and therefore could and should be judged as criminal.

Whatever the legal and ethical debates underlying these trials, the post-World War II IMTs established legal

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precedents to prosecute those who promoted "aggressive war," and, perhaps more importantly in hindsight, crimes against humanity. As well as the legal precedent, new international legal principles and treaties codified and extended human rights protections. These included the Nuremberg principles, the 1948 Genocide Convention, the Universal Declaration of Human Rights, and numerous other instruments establishing and advancing international human rights law, such as the 1987 Convention against Torture. However, this book mostly addresses the narrower question of war crimes and genocide rather than the broader category of other human rights abuses. Where this larger question is examined, there is an awkward conceptual fit. In fairness, at least another chapter would have been called for to integrate these two concerns.

Nevertheless, no permanent international criminal tribunal was created. New genocides and war crimes were essentially unpunished until the 1990s genocides in Rwanda and the former Yugoslavia. Following war and "ethnic cleansing," "In 1993, the United Nations (UN) created a prosecutorial protocol and process and an international court, the International Criminal Tribunal for the Former Yugoslavia (ICTY)" (p. 121). Although the ICTY dealt primarily with allegations of war crimes, the International Criminal Tribunal for Rwanda (ICTR) was a court exclusively for prosecuting genocide, a world "first." The UN Security Council established the ICTR in 1994.

The Rwandan genocide stands out among others for at least three reasons: (1) Large numbers of victims, mostly Tutsi but also moderate Hutu, were killed in a very short space of time: "the daily killing rate was a least five times that of the Nazi death camps" (Prunier quoted at p. 164). (2) One-time friends and neighbors killed with unsophisticated weapons using very direct, person-on-person, methods. (3) The world was forewarned of the extensive and detailed bureaucratic plans made by the government for the mass slaughter. The UN commander in Rwanda sought to prevent or at least limit the massacres, but was denied permission to do so.

Rwanda and Bosnia shared, however, many characteristics with each other and other genocides. These characteristics include the extensive government role of planning genocide, and the pervasive use of dehumanizing stereotypes of the "enemy" to facilitate mass murder and human plunder. Both the ICTY and the ICTR continue their work at the time of writing. Both have met with limited success, but are also beset by a range of problems that the book outlines.

Ball considers the ICC as an urgent international imperative to respond to, and perhaps prevent genocide in the first place. In Rome in 1998, 161 UN member states and 235 NGOs participated in a meeting to establish the ICC treaty. Ball identifies the United States as the chief obstacle to establishing the ICC. The United States has long undermined world attempts to establish a criminal court of international jurisdiction. In the ICC discussions in Rome, the United States required, for example, that states or their citizens must consent to their investigation by an ICC prosecutor. Can one imagine if US law required that criminal suspects consent to their investigation and trial? The United States also fears overzealous and politically biased prosecutors inventing or distorting claims against the United States. After Kenneth Starr, among others, I believe this fear is understandable. However, the Starr

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experience should inspire a search for limits to prosecutorial abuse, not the wholesale rejection of an independent prosecution and judiciary.

National sovereignty is the fundamental United States' concern about the ICC. The United States believes it should not be subject to an international court's jurisdiction, even one concerned with international war crimes and crimes against humanity. Ball offers an array of responses to this claim. He discusses the use of legal concepts like complementarity (international court jurisdiction requires that a national court fail to act), offers a meditation on the debate between realism/realpolitik and human rights, and considers the role of the ICC in deterrence, among others. I conclude my comments addressing these last two issues.

Ball tends to set up realism in opposition to international involvement in human rights abuses. As noted in a postscript, however, realism's "might is right" logic was used in Kosovo in 1999 to prevent and limit genocide. Ideas like "national interest," realpolitik, and so on, are then political constructions. In Kosovo in 1999, political elites in the United States and elsewhere defined their interests as human rights and justice, rather than in opposition to rights, and often used the language of norms associated with ICC supporters. The question is then not necessarily war or law. Tactically, the isolationist logic of anti-ICC America may be subverted, not merely identified as immoral. The illogic of the United States' position can be challenged, which Ball does not always do. For example, most US complaints about the ICC claim it would have too much power, and thus subvert American sovereignty. However, the United States also criticizes the ICC for being too weak to challenge certain human rights abuses and abusers. Which is it?

Ideally, an ICC and other international human rights instruments should deter genocide and other abuses. However, deterrence is hardly a pre- condition for the necessity and legitimacy of law; laws aim to punish as well as to prevent. Although I too wish to deter genocide and war crimes, it is a necessary but insufficient motivation to ratify the ICC. Rather, as Ball insists upon in this well-written and thoughtful book that I recommend, ending impunity and establishing criminal accountability for mass slaughter is an initial necessary step toward justice. The only sufficient response to war crimes, genocide, and human rights abuse, however, is their end.

Copyright 2000 by the author, Fran Buntman.