Book Notes

Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. By Gary Jonathon Bass. Princeton, N.J.: Princeton University Press, 2000. Pp. 368. $29.95, cloth.

In the years following the relatively successful Nuremberg Trials, human rights advocates have showcased a tendency to make sweeping claims about the appropriateness and feasibility of international criminal courts. More recent developments in places like Rwanda, Kosovo, and Bosnia, however, have caused some to question the applicability of Nuremberg’s success in less controlled situations. Gary Bass, therefore, takes a cautious approach to the workability of prosecuting international violations. Even the title of his book hints at his effort to remain realistic; although he subscribes to the ideal of staying vengeance, he insists on evaluating it in light of real-world politics. Thus, the book borrows its name from Robert Jackson’s opening statement at Nuremberg, which highlights the political backdrop against which the allied powers were acting: “That four great nations, flushed with

victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.” Bass embraces this tension between power and reason, using it to inform both his philosophical and historic analyses of war crimes trials, and he finally argues that liberal optimism is not misplaced.

Bass’s book is driven by a need to uncover the overlooked reasons why states are sometimes strikingly idealistic and at other times abandon idealism in favor of vengeance or apathy. To do so he traces the development of war crimes trials from the aftermath of the Napoleonic Wars to the disintegration of former Yugoslavia, integrating discussions of such often-neglected trials as those of Napoleon in 1815 and the Young Turks a century later. Along the way, he finds that the very notion of crimes against humanity is not, as is often supposed, a product of the Nuremberg trials, but rather of the much more problematic Constantinople procedure of 1915.

The book begins with an introduction to the philosophy of, and difficulties with, war crimes trials. The first chapter could thus stand alone as a well-organized exposition of Bass’s theory of war crimes legalism. Following this treatment are a series of case studies highlighting the problems and successes of international legalism. In chapter six, Bass turns to an in-depth discussion of the process of creating the Hague tribunal.

Bass’s most powerful—and perhaps daring—contention is that war crimes trials only make sense in the context of liberal states. By liberal states he seems to mean the fairly small set of democratic western powers that have sponsored his case-study trials, and his stance is heavily critical of many countries that have not or would not conduct such trials. In other words, authoritarian or totalitarian governments may choose to punish defeated foes or conduct business with them, but only a liberal state will feel constrained to treat subjugated adversaries with reference to domestic procedural norms. At its limits, of course, this is a fairly obvious argument; states that do not recognize certain rights of their own citizens are unlikely to protect those rights in the citizens of defeated powers. Bass, however, goes so far as to claim that every international war crimes trial has been conducted by liberal states, and no illiberal state has ever conducted one. Legalism in external politics is thus dependent on and reflective of legalism in internal politics.

While Bass contends that only liberal states have legal norms that significantly impact their foreign policy, he admits several serious flaws that keep even the most creditable ones from fully prosecuting war criminals. Political necessity forces them to protect their own soldiers, regardless of the cost to their legal intentions or foreign populations, and similarly to appraise criminality against their own citizens much more highly than crimes against foreigners. Public outrage and pressure from non-governmental organizations are political necessities for successful trials, and do not always occur across the populations of even liberal states. In addition, tribunals are risky; they indict political leaders, making even essential dealings with those

leaders very embarrassing for the international community—sometimes making the peace process more difficult. Also, the arrogance and discriminative dealings of liberal victors can spark a nationalist backlash that further exacerbates peace initiatives and the rebuilding process.

In spite of the obstacles to substantive international justice, the author argues the notion of victors’ justice does not tell the whole story; even though war crimes tribunals are always a function of victorious nations, they are fundamentally different from the summary judgements or show trials conducted by illiberal ones. Even if there is (and there must be) an element of victors’ justice in war crimes proceedings, there are qualitative differences in the ways victors treat their foes. Bass points out, for instance, that in most of the historical cases, it is difficult to imagine the defeated holding anything resembling a legal trial were the tables turned.

Bass’s style is varied and engaging. He opens the book with a vignette of Blaskic’s 1997 entry to the Hague courtroom, then interweaves his philosophical and political inquiries with a historical overview. His book is meticulously researched and includes unusual findings in historical trials and extraordinary detail and drama in more recent ones. It offers a cohesive foundation for anyone who wants to fix the current issues against a background of political and philosophical history, with an occasional levity that softens the weight of his troubling topic.

The scope of the research, however, might disappoint some readers. Although he mentions them, Bass does not include history or analysis of the war crimes trials in Japan or Rwanda. The trials he does study are in each case conspicuously western ones. His study would benefit a great deal from treatments of cases, such as those in Japan and Rwanda, in which the aims of liberal western states meet the traditions and expectations of non-western cultures. If, as Bass argues, the legal traditions of liberal states make them amenable to legalistic treatment of war criminals, it would be particularly interesting to see that tradition’s outcome in non-western environments.

From a human rights perspective, Bass’s study is important particularly as an unusually candid attempt to balance individual human rights with the overall aims of human rights advocacy. In other words, he realizes that if human rights are universal, they apply even to those who have committed crimes against humanity. Thus, the main contention between realists and liberals is how to protect human rights; a realist says that justice imposed by war crimes tribunals might compromise a peace process, while the liberal contends that a durable peace is impossible without justice. In the end, Bass admits that perhaps the most unambivalent benefit of war crimes trials is that they establish a reliable record of atrocities. Surely one of the reasons such crimes continue is because it is so easy to contest the credibility of reported atrocities. The procedure of a trial at least minimizes the aura of unreality that can cling to stories of horrors. Who knows what result the Nuremberg trials had in cementing international outrage and preventing coloration of the record. In Rwanda and the Balkans, we can hope that trials will

at least make it more difficult for future partisans to repeat history when they cannot deny it.

—Chris Larson

Copyright © 2001 by the President and Fellows of Harvard College
Harvard Human Rights Journal / Vol. 14, Spring 2001