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Martha Minow
Between Vengeance & Forgiveness: Book Reviews


 

"Human Rights: The Midlife Crisis" by Michael Ignatieff
New York Review of Books, May 20, 1999

Amazon.com
Although mass atrocities are not unique to the 20th century, organized response to such violence has taken new forms, some of which offer hope of some small redress to the victims of war and genocide. In the groundbreaking and timely Between Vengeance and Forgiveness, Harvard Law School professor Martha Minow explores the benefits and drawbacks of a variety of forms of settlement.

For those who have recoiled in horror and outrage at collective violence in Rwanda, Bosnia, Cambodia, and elsewhere, this book--with chapters titled "Trials," "Truth Commissions," "Reparations," and "Facing History"--is a primer on how the world, and individuals, might respond to such acts once the shock subsides. Minow resists the idea that compensatory measures such as war-crimes tribunals and financial payback can ever bring true closure for those who have suffered. "Legal responses," she writes, "are inevitably frail and insufficient." Nevertheless, Minow advocates addressing these atrocities in a formal way: "The victimized deserve the acknowledgment of their humanity," she asserts, "and the reaffirmation of the utter wrongness of its violation." --Maria Dolan

From Kirkus Reviews , October 1, 1998
A leading legal scholar's judicious examination of our varied reactions to mass violence and their relative potential for healing people and nations. From the Holocaust to apartheid South Africa and Rwanda, 20th-century collective violence has challenged societies to deal with the aftermath. And Minow (Law/Harvard; Not Only for Myself, 1997) makes her own significant contribution to this effort by sketching out a ``lexicon of potential responses to collective violence.'' Through a series of chapters highlighting specific forms of responses in their historical contexts, she formalizes a vocabulary for assessing the ways in which society is able or unable to deal with irreversible loss (and the emotional damage caused by large-scale violence). First she contemplates the possibility of bridging reactions of vengeance and forgiveness, raising one of her central arguments: the healing power of therapy for victims, bystanders, and even offenders. In further chapters, she discusses the history of war-crimes prosecution, focusing on the complex legacies of the Nuremberg and Tokyo trials following WWII, and reparations, drawing on the case of the US government and former Japanese-American internees. Minow's chapter on truth commissions proves to be the most engaging, given its timeliness amid the ongoing debates about South Africa's Truth and Reconciliation Commission. Citing the importance of direct personal narratives, she argues that when society prioritizes healing and the restoration of human dignity, a truth commission may serve better than a prosecution actually does. Her final chapter assesses the value of public monuments, educational programs, and amnesty. Some readers will feel frustrated by Minow's admitted ``resistance to tidiness'' in drawing conclusions and by her rationalized tightrope walk between the extremes of idealism and cynicism. But this is a mostly enlightening exploration of a thorny subject. (For another look at these questions, see Wole Soyinka, The Burden of Memory, The Muse of Forgiveness, p. 1442.) -- Copyright 1998, Kirkus Associates, LP. All rights reserved.

Summary
With Between Vengeance and Forgiveness, Martha Minow, Harvard law professor and one of our most brilliant and humane legal minds, offers a landmark book on justice and healing after horrific violence. Remembering and forgetting, judging and forgiving, reconciling and avenging, grieving and educatingMinow shows us why each may be necessary, yet painfully inadequate, to individuals and societies living in the wake of past horrors. She explores the rich and often troubling range of responses to massive, societal-level oppression. She writes of the legacy of war-crime prosecutions, beginning with the Nuremberg trials. She explores whether reparation - such as the monetary awards given to Japanese-Americans for internment during World War II, or art, such as Holocaust memorials - can be a basis for reconciliation after immeasurable personal and cultural loss. Minow also writes with informed, searching prose of the extraordinary drama of truth commissions in Argentina, East Germany, and most notably South Africa, and in the process delves into the risks and requirements involved in hearing from victims, the dynamics of gender, and the value of even imperfect gestures in the midst of these riveting experiments in justice and healing.


97 Mich. L. Rev. 2103
XII. INTERNATIONAL LAW: WAR CRIMES AND THE LIMITS OF LEGALISM
Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence. By Martha Minow, Boston: Beacon Press. 1998. Pp. xiii, 214. $ 23.
Mass Atrocity, Collective Memory, and the Law. By Mark Osiel. New Brunswick, N.J.: Transaction. 1997. Pp. x, 317. $ 34.95.

Gary Jonathan Bass
Assistant Professor of Politics and International Affairs, Princeton University. A.B. 1992, A.M. 1995, Ph.D. 1998, Harvard. - Ed.

SUMMARY:
... In April 1945, Sir John Simon, Britain's Lord Chancellor, drew up a memorandum that was the last gasp in the diplomatic struggle against Nuremberg. ... Nor was it clear that aggression - which was to be the main charge at Nuremberg and the focus of the American pros ecution - could be considered a war crime in any conventional sense. ... Your definition of Nazi policy as a crime ("criminal guilt") strikes me as questionable. ... By purport ing that a war crimes tribunal has actually established individual responsibility in so many cases, some advocates of tribunals extend to huge numbers of unindicted war criminals an undeserved moral amnesty in addition to a de facto legal one. ... Although the ex-Yugoslavia tribunal in The Hague is belatedly starting work on some kind of an outreach program, to date the tribunals have been spectacularly unsuccessful at showing their ef forts off to Bosnians and Rwandans. ... Only in this way can the debate within the courtroom be made to resonate with the public debate beyond the courtroom walls. ... Watching such a spectacle in The Hague, what one appreciates about a war crimes trial is precisely that it no longer allows the war criminal to set his terms. ...  

TEXT:
 [*2103] 

I.
 
In April 1945, Sir John Simon, Britain's Lord Chancellor, drew up a memorandum that was the last gasp in the diplomatic struggle against Nuremberg. Under American pressure, and despite British objections, the Allies were poised to agree to put the Axis leader ship on trial for war crimes. In the kind of magnificent understate ment that the British government could sometimes inadvertently achieve, it was entitled "The Argument for Summary Process against Hitler & Co." The memorandum was a series of arguments to be used by the British delegation at the San Francisco conference in a last-ditch effort to win over the Americans and Soviets. Simon's case was simple: the Nazi leaders deserved to be punished, but trials were not the way to do that. Simon feared that a trial of the Nazi leadership would drag on, wear out public interest, unearth embarrassing facts, and allow the Nazis a final chance to make propaganda. The legal difficulties also seemed daunting. It would be nightmarish to merge the American, British, and Soviet legal traditions. Nor was it clear that aggression - which was to be the main charge at Nuremberg and the focus of the American pros ecution - could be considered a war crime in any conventional sense. If the Nazi defense managed to score a few small victories, the trial might be denounced as "a farce." So Simon had a simpler solution: avoid the niceties of a trial and just shoot the Nazi leaders. n1
 
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n1. Great Britain Pub. Records Office (PRO), Kew, London: CAB 66/65, W.P. (45) 281, Simon memorandum, "War Criminals: Annex B: The Argument for Summary Process against Hitler & Co.," May 3, 1945.
 
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 [*2104]  These arguments were to be quashed. Led by Henry Stimson, Franklin Roosevelt's Secretary of War, the American government was determined to have sweeping trials for the Nazi war criminals. In the face of this, Britain decided not to push Simon's argument any further but to acquiesce with the wishes of its more powerful American ally with as much good grace as could be mustered. n2
 
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n2. CAB 65/50, War Cabinet 57, W.M. (45) 57, May 3, 1945, 6 p.m., pp. 331-32.
 
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Whether one agrees with them - and I don't - Simon's argu ments were not weak ones. But they are strange to hear neverthe less. Nuremberg is seen in retrospect as so unimpeachable, an act of such extraordinary restraint and justice, that it is disturbing to hear that it was fought with such pragmatic objections. When con sidering a war crimes tribunal for the former Yugoslavia and then another one for Rwanda, the United Nations did not air such de bates. To the contrary, there is a kind of orthodoxy in human rights circles that regards it as almost self-evident that war crimes deserve war crimes trials. So many of the arguments against war crimes tri als have been made in bad faith - by apologists for Serb or Croat nationalists and Hutu genocidaires, who do not really question le galistic methods but the need for punishment itself - that it is easy to forget that there are some reasonable arguments made in good faith against the trials.

At a minimum, this protribunal orthodoxy is a post-Nuremberg artifact. Many scholars and diplomats have questioned whether war crimes and mass atrocities can properly be reduced to legal questions. While the Nuremberg trials were in session, Hannah Arendt wrote to Karl Jaspers, a German intellectual:


 
Your definition of Nazi policy as a crime ("criminal guilt") strikes me as questionable. The Nazi crimes, it seems to me, explode the limits of the law; and that is precisely what constitutes their monstrousness. For these crimes, no punishment is severe enough. It may well be essential to hang G<um o>ring, but it is totally inadequate. That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems. That is the reason why the Nazis in Nuremberg are so smug. n3
 
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n3. Letter from Hannah Arendt to Karl Jaspers (Aug. 17, 1946), in Hannah Arendt and Karl Jaspers: Correspondence 1926-1969, at 51, 54 (Lotte Kohler & Hans Saner eds., Robert Kimber & Rita Kimber, trans. 1992).
 
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Other thinkers, less commendably, have been more worried about the purity of American law than about punishing foreign war criminals. During Nuremberg, at the Supreme Court itself, Chief Justice Harlan Fiske Stone was quietly indignant that Justice Robert Jackson was away serving as the American chief prosecutor at the Allied tribunal:


 
So far as the Nuremberg trial is an attempt to justify the application of the power of the victor to the vanquished because the vanquished  [*2105]  made aggressive war ... I dislike extremely to see it dressed up with a false facade of legality.

... It would not disturb me greatly ... if that power were openly and frankly used to punish the German leaders for being a bad lot, but it disturbs me some to have it dressed up in the habiliments of the common law and the Constitutional safeguards to those charged with crime....

....

... Jackson is away conducting his high-grade lynching party in Nuremberg .... I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas. n4
 
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n4. Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law 715-16 (1956) (quoting letter from Harlan Fiske Stone to Luther Ely Smith Jan. 2, 1946) (citations omitted). For a rebuttal, see, for instance, Richard A. Posner, The Problems of Jurisprudence 228-39 (1990).
 
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And in his book Profiles in Courage, John F. Kennedy dedicated a rather unconvincing chapter to praising Senator Robert Taft for ob jecting to Nuremberg as a betrayal of American legal standards. n5
 
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n5. See John F. Kennedy, Profiles in Courage 261-77 (memorial ed. 1964).
 
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There have also been more political objections. As World War I was drawing to an end, David Lloyd George, the British Prime Minister, tried to persuade the Imperial War Cabinet to approve war crimes trials for Kaiser Wilhelm II and other Germans. But Lloyd George found few takers at first. Jan Smuts, South Africa's Defense Minister, was not sure that Wilhelm II had committed any definite crime. W.M. Hughes, the Prime Minister of Australia, was emphatic that Wilhelm II could not be put on trial simply for start ing the war. Austen Chamberlain did not want to make a martyr of Wilhelm II by singling him out for trial. Winston Churchill himself had, in 1915, been enthusiastic about punishing U-boat crews, but in 1918, as Minister of Munitions, worried:


 
It does seem to me that you might easily set out hopefully on the path of hanging the ex-Kaiser and have general public interest taken in it, but after a time you might find you were in a very great impasse, and the lawyers all over the world would begin to see that the indictment was not capable of being sustained. n6
 
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n6. CAB 23/43, Imperial War Cabinet 37, Nov. 20, 1918, noon.
 
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It was not only the British who had reservations. Cordell Hull, Franklin Roosevelt's Secretary of State, and Henry Morgenthau Jr., Roosevelt's Secretary of the Treasury, both preferred summary exe cution to trials for Nazi war criminals. Henry Stimson, Roosevelt's Secretary of War, was the administration's foremost advocate both of war crimes trials and a generous settlement that would not hu miliate Germany. This generosity was presumably easier for Stimson because he, and the War Department, had never been no  [*2106]  ticeably exercised about the extermination of the Jews. But more than any other member of Roosevelt's cabinet, Morgenthau tried to stop the Holocaust; and once the war was coming to a close, he was too angry to contemplate giving the Nazis the luxury of a trial. n7
 
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n7. See generally David S. Wyman, The Abandonment of the Jews: America and the Holocaust, 1941-1945 (1984) (discussing the Roosevelt administration's handling of the Holocaust).
 
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Morgenthau's rage was certainly immoderate, but it was in the same vein as Arendt's critique of Nuremberg. Morgenthau and his staff at one point in 1944 were considering as many as 2,500 such executions. n8 These plans for summary execution were enshrined in the Morgenthau Plan, a document calling for a tough peace that would pastoralize Germany lest it ever threaten Europe's peace again. At the Quebec Conference in 1944, Roosevelt and Churchill agreed to follow Morgenthau's lead. It was only after the Morgenthau Plan was leaked to the press that Roosevelt turned to Stimson's plans for war crimes trials. Morgenthau did not recant. He did not want the punishment of Nazis undercut by legal niceties. For Morgenthau, justice and law were not always the same thing. "I'm not a lawyer," Morgenthau said in June 1945, as the planning of Nuremberg dragged on. "Is there any reason they can't cut all of this monkey-business out and go right to the military tribunal?" n9
 
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n8. See 1 Henry Morgenthau, Jr., Senate Comm. on the Judiciary, 90th Cong., Morgenthau Diary (Germany) 486 (Comm. Print 1967).

n9. Id. at 1561.
 
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In retrospect, it is clear that Morgenthau and Hull had got the wrong end of the argument. We are right to reserve our highest praise for the people who made Nuremberg the triumph it was, like Jackson and Telford Taylor. n10 But even the success of Nuremberg does not necessarily mean that trials will always work. The trials held after World War I, in Leipzig and in Constantinople, degener ated into disaster. n11 The Tokyo tribunal was far less impressive than Nuremberg, and seems to have made less of a contribution to Japan's postwar development away from militarism. n12
 
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n10. See Telford Taylor, Anatomy of the Nuremberg Trials: A Personal Me moir (1992). By Jackson, see variously, Robert H. Jackson, The Case Against the Nazi War Criminals: Opening Statement for the United States of America, and Other Documents (1946); Robert H. Jackson, The N<um u>rnberg Case (1947); Report of Robert H. Jackson, United States Representative to the International Confe rence on Military Trials, London, 1945 (1949); Robert H. Jackson, Introduction to Whitney R. Harris, Tyranny on Trial: The Evidence at Nuremberg xxix (1954).

n11. See James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (1982).

n12. See Ian Buruma, The Wages of Guilt: Memories of War in Germany and Japan (1995); John W. Dower, Embracing Defeat: Japan in the Wake of World War II, 443-84 (1999).
 
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Is law really the best way to address such atrocities? As Simon and others would point out, there are many reasons to be skeptical.  [*2107]  Law is an inflexible instrument, and the chaos of war and atrocity stubbornly resists shoehorning into neat legal categories. Legal goals may be at odds with those of politics. Or they may be at odds with a commonsensical understanding of substantive justice. Or the mix of politics with law may end up cheapening the law. The human rights orthodoxy - that trials are invariably helpful - may, in the end, be right; but it is not so self-evident or so uncomplicated that it should be beyond argument. Are war crimes trials really al ways the right way to go?

II.
 
Martha Minow n13 is a quiet skeptic. The thrust of her thoughtful and humane book is that there is a broad spectrum of possible measures to try to cope with the aftermath of war or atrocity and that trials are only one possible notch along it. She asks: "Must all such societies pursue prosecutions in order to comply with interna tional human rights standards?" (p. 2). Quite unlike those lawyers who see justice as a matter of law or nothing, Minow is acutely aware of how little law can actually accomplish in an unstable polit ical climate. Minow upbraids the advocates of trials for overselling the virtues of their preferred solution, hyping trials as capable of grand tasks like deterring war crimes and rebuilding shattered soci eties (pp. 48-49).
 
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n13. Professor of Law, Harvard University
 
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Minow has no such illusions. She admits that almost any re sponse - whether legalistic or not - to mass atrocity will be insuf ficient. She presents a long list of possible alternative responses, without placing too much hope in any of them: truth commissions, purges, reparations, apologies, memorials, naming names, and pub lic education (p. 23). She is not quite sure what will work, and is acutely aware of the difficult line that must be walked "between too much memory and too much forgetting" (p. 118). Trials are only one part of the story.

But Minow is, of course, an expert on law, and it is for trials that she reserves her most stern language. She warns that the grandiose claims of international legalists not only go too far, they tend to breed cynicism when tribunals stumble under too heavy a load. As she puts it:


 
I do not think it wise to claim that international and domestic prose cutions for war crimes and other horrors themselves create an inter national moral and legal order, prevent genocides, or forge the political transformation of previously oppressive regimes. Expansive claims may be tempting in order to convince international and na tional audiences to fund and support trial efforts, but exaggerated as  [*2108]  sertions are bound to yield critical and even hostile disappointment. [p. 49]


 
In particular, Minow refuses to use deterrence as an argument for international war crimes trials. She admits that we do not know how to deter someone like Radovan Karad<brev z>ic (p. 146). This stands in contradiction to the assertions of more orthodox human rights figures, like Madeleine Albright, Richard Goldstone, and David Scheffer.

Minow, like Arendt during Nuremberg, is aware of the limita tions of law to deal with the worst horrors. These are acts that go beyond being criminal. Minow argues that mass violence requires "more severe responses than would any ordinary criminal conduct, even the murder of an individual. And yet, there is no punishment that could express the proper scale of outrage" (p. 121). As Minow admits, war crimes trials "depend for the most part upon symbolism rather than effectuation of the rule of law" (p. 122). There are sim ply too many perpetrators to be brought to justice, overwhelming any court system and threatening political chaos. Thus, in order to avoid cycles of violence, Minow would try to bring many lower- level perpetrators back into society, presumably instead of simply purging them (p. 121). She knows that many of the guilty will es cape punishment. Human rights trials, as we know them, are not yet ready to deliver anything close to perfect justice.

Yet this is not at all how their advocates advertise them. Trials are supposed to pin individual guilt upon individual criminals, so that no one can point to an entire nation as guilty. This argument comes up repeatedly, including in Minow's book (p. 123), but it has never been a particularly convincing one. Tribunals never punish anything remotely near the number of actual perpetrators, so the guilt or innocence of vast numbers of individual Germans or Serbs remains a mystery. In addition, some war criminals can never be charged, not because they are innocent, but because there is scant evidence of their crimes that would stand up in court. By purport ing that a war crimes tribunal has actually established individual responsibility in so many cases, some advocates of tribunals extend to huge numbers of unindicted war criminals an undeserved moral amnesty in addition to a de facto legal one.

There are a few things not to like in this book. Minow's book has some jarring factual slips. She says that the U.N. set up the war crimes tribunal for ex-Yugoslavia in 1992; it was in fact in 1993. n14 She points out that Dra<brev z>en Erdemovic, an executioner at Srebrenica in 1995, joined the Bosnian Army (p. 35), but neglects to mention that he was in the Bosnian Serb Army when he committed  [*2109]  his murders n15 - no trivial point, for uninformed readers may come away from her version thinking that the Bosnian Army was respon sible for the atrocities at Srebrenica. She writes that Stalin and Churchill both considered summary execution for the Nazis (p. 29); but she does not qualify this by pointing out that Stalin - true to form - had actually suggested killing 100,000 Germans, while Churchill furiously rejected Stalin's sweeping proposal and limited the British blacklist to 50 or 100 top Axis leaders, insisting on trials for all the war criminals not in the highest levels. n16
 
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n14. P. 34. Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice 111 (1998).

n15. See David Rohde, Endgame: The Betrayal and Fall of Srebrenica 128-29 (1997).

n16. CAB 66/42, W.P. (43) 496, Churchill, "The Punishment of War Criminals," Nov. 9, 1943, at 265-66; Bohlen Minutes, Tripartite Dinner Meeting, November 29, 1943, 8:30 p.m., Soviet Embassy, in Foreign Relations of the United States: The Conferences at Cairo and Tehran 1943, at 554 (1961).
 
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Minow's most impressive contribution is her refusal to get swept away. She is appropriately daunted by the difficulty of restoring shattered societies and tries to consider a broad range of policy tools that might help. And she is not so dazzled by the spectacle of war crimes trials that she loses her professional skepticism.

III.
 
If Martha Minow is a quiet skeptic, Mark Osiel n17 is a true be liever with a twist. Not only does he believe that law can do great things even amidst political chaos, he has written an unsettling book on how to trim legalistic justice to the demands of theatricality. Unlike Minow, who reacts to the limitations of trials by casting her eye around the horizon for other alternatives, Osiel tries to recast the institution of the trial so that it will fit his sweeping purposes better.
 
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n17. Professor of Law, University of Iowa.
 
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Osiel's primary concern is not "the criminal law's more tradi tional objectives" of deterrence and retribution (p. 2). As Minow notes, it is by no means clear that human rights trials do a good job of those two tasks. But Osiel has bigger fish to fry. Trials, he ar gues, "when effective as public spectacle, stimulate public discus sion in ways that foster the liberal virtues of toleration, moderation, and civil respect. Criminal trials must be conducted with this peda gogical purpose in mind" (p. 2).

To be sure, Osiel thinks that storytelling is already inherent in trials in liberal courts (pp. 68-72), and that even "liberal show tri als" - to use his striking phrase - must be conducted within the limits of procedural fairness (p. 69). But the play is the thing. He wants spectacular criminal trials in which both the judges and law yers are explicitly concerned with what Osiel calls "the 'poetics' of  [*2110]  legal storytelling" (p. 3). The drama of the courtroom is to be turned into a "theater of ideas," focusing on "large questions of collective memory and even national identity ...." (p. 3). This, Osiel argues, will contribute to a "social solidarity" (p. 3). These trials "should be unabashedly designed as monumental spectacles" (p. 3). Or, as he puts it at another point, what is required is "some measure of son et lumiere, smoke and mirrors, that is, some self- conscious dramaturgy by prosecutors and judges" (p. 7).

This is no small task, as Osiel admits. Having laid out his argu ment, he spends much of the rest of the book qualifying it, until in his conclusion he allows that "it remains to be seen whether lib eral courts can entirely reconcile the traditional, delimited functions of criminal law with the dramaturgical demands of monumental di dactics" (p. 293). In rambling pages that could have used a good editor - there is far too much jargon and foggy prose - Osiel tries to answer some objections to his planned smoke and mirrors; mostly that a delusionary kind of history will be created.

Osiel makes much of the Buenos Aires trials for members of the junta that waged Argentina's "dirty war." Among political scien tists at least, these trials, and the subsequent amnesties, have a more dubious reputation. As Samuel Huntington, perhaps the sin gle most distinguished figure in the study of comparative politics, writes, "the efforts to prosecute and punish in Argentina served neither justice nor democracy and instead produced a moral and political shambles." n18
 
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n18. Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century 221 (1991). As a matter of social science, Osiel - a sociologist as well as a law professor - stumbles by only looking at cases where there were trials. One needs to make comparisons among cases. If trials are supposed to be the cause of social solidarity, Osiel would need to look at cases of trials and cases of something other than trials. (In the jargon of political science, Osiel's explanatory variable does not vary.) See Gary King et al., Designing Social Inquiry: Scientific Inference in Qualitative Research (1994). Minow does not use social scientific jargon - more credit to her - and she does not make Osiel's mistake: she examines trials but also alternatives like truth commissions and amnesties. Osiel also doesn't draw a systematic distinction between international and domes tic trials, even though the political dynamics are in many respects quite different. Osiel ad mits that his empirical work is anecdotal, and shies away from a rigorous social-scientific study that would systematically ask what trials really do. P. 239.
 
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Osiel points out that the witnesses were selected from many re gions and social classes, which, he argues, was meant to convey sub tly the message that the junta had targeted not just leftists and guerrillas but Argentines of all strata. This, he writes, "made a bet ter story" (p. 237). He talks of Argentine story-telling as a way of restoring civil society, and praises Argentina's President Raul Al fonsin for, among other things, packaging the junta trials in a single hearing that could easily be televised (pp. 76-77). Unlike Minow, Osiel seems interested only in trials. Truth commissions, for in stance, according to the late Carlos Santiago Nino, the legal advisor  [*2111]  to Alfonsin, and a hero of Osiel's, lack the requisite drama of a courtroom confrontation (p. 15).

Osiel has great expectations from human rights trials, so long as the trials are not too dryly legalistic. In this, he is in many ways pitting himself against a more traditional view of war crimes trials. One of Hannah Arendt's less controversial criticisms of Israel's trial of Adolf Eichmann was a matter of due process (the court hadn't allowed defense witnesses), as was one of her points of praise (the court had given a more clear definition of crimes against humanity than at Nuremberg). n19 She did want justice to be seen to be done, but her emphasis was on procedural fairness. She was withering about Israeli Prime Minister David Ben-Gurion's attempts to use the trial as a showcase for Jewish suffering and for Zionism:
 
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n19. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil 251-52 (1963).
 
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There is no doubt from the very beginning that it is Judge Landau who sets the tone, and that he is doing his best, his very best, to pre vent this trial from becoming a show trial under the influence of the prosecutor's love of showmanship.... And Ben-Gurion, rightly called the "architect of the state," remains the invisible stage manager of the proceedings. Not once does he attend a session; in the courtroom he speaks with the voice of Gideon Hausner, the Attorney General, who, representing the government, does his best, his very best, to obey his master. And if, fortunately, his best often turns out not to be good enough, the reason is that the trial is presided over by someone who serves Justice as faithfully as Mr. Hausner serves the State of Israel. Justice demands that the accused be prosecuted, defended, and judged, and that all the other questions of seemingly greater import - of "How could it happen?" and "Why did it happen?," of "Why the Jews?" and "Why the Germans?," of "What was the role of other nations?" and "What was the extent of co-responsibility on the side of the Allies?," of "How could the Jews through their own leaders coop erate in their own destruction?" and "Why did they go to their death like lambs to the slaughter?" - be left in abeyance. Justice insists on the importance of Adolf Eichmann .... On trial are his deeds, not the sufferings of the Jews, not the German people or mankind, not even anti-Semitism and racism. n20
 
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n20. Id. at 2-3. For a criticism of Arendt's controversial emphasis on Jewish passivity, see Gershom Scholem, On Eichmann, in On Jews and Judaism in Crisis: Selected Essays 298 (Werner J. Dannhauser ed., 1976). For a less contentious account of the trial, see Tom Seger, The Seventh Million: The Israelis and the Holocaust 323-66 (1994).
 
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Osiel takes just the opposite position. He is endorsing showman ship. As he writes in his conclusion: "To insist on punctilious judi cial adherence to any notion of legal formalism at such times is to guarantee the failure of courts to cultivate liberal memory when this objective is vital to successful democratization" (p. 298).

 [*2112] 

IV.
 
The best aspect of Osiel's book is its reminder that justice must not only be done but also be seen to be done. This is a lesson that the two current U.N. tribunals have largely failed to grasp. Although the ex-Yugoslavia tribunal in The Hague is belatedly starting work on some kind of an outreach program, to date the tribunals have been spectacularly unsuccessful at showing their ef forts off to Bosnians and Rwandans. It is a long way from Sarajevo to The Hague, and from Kigali to Arusha; it is quite possible to be in Sarajevo and have no idea that a trial is going on in The Hague.

This is particularly ironic because Sarajevo is a bustling hub of international humanitarian organizations, all of them highly visible. (The European Union took to painting Sarajevo trams in the colors of EU flags - navy blue with gold stars - to show off its contribu tion to the rebuilding of Bosnia; so did Saudi Arabia, so that trams would line up, one Euro blue and the next with a desert scene and images of Mecca.) The Hague tribunal is the only institution that is invisible.

The Allies did not make the same mistake during Nuremberg. They went to considerable lengths to explain to the German public exactly what the Nazi leadership stood accused of: Allied forces handed out pamphlets, screened documentaries, and made broad casts on German radio. n21 When Buchenwald was liberated, American military police marched a thousand residents of nearby Weimar through the camp to show them the nightmare reality there. n22 Like the Allies, Osiel understands that such crucial trials must be part of the painful reeducation of a society.
 
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n21. See Richard L. Merritt, Democracy Imposed: U.S. Occupation Policy and the German Public, 1945-1949, at 151 (1995).

n22. See Forced Tour of Buchenwald: Weimar Residents Shown Round, Times (London), Apr. 18, 1945, at 3.
 
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But how to accomplish such a massive task? What exactly would an Osiel-style trial look like, and why would this help a shat tered society? It is at this point that the book begins to unravel.

Osiel places enormous faith in a clash of narratives, which he thinks will make a trial compelling and thereby help to knit a soci ety together. He argues that the "experience of disagreement itself, although often unpleasant and divisive in many ways, nonetheless creates a kind of joint understanding .... " (p. 43). Osiel sees trials as a the first step in a dialogue when the other side is "initially un willing" (p. 46). "At the very least," he writes,


 
through adversarial exchanges, when constrained by civility rules, we achieve a sense of lived experience that is mutual. With better luck, we gain some appreciation of how someone could, sincerely and in  [*2113]  good faith, come to think so differently from us about something so fundamental to us both.

The experience of disagreement itself, although often unpleasant and divisive in many ways, nonetheless creates a kind of joint under standing: that we have both faced the issues dividing us, that we are united in caring deeply about them and about what the other thinks of them. The phenomenology of this interpersonal experience nowhere has adequately been captured in social or political theory. But who among us can deny having had it, and having found it not altogether unpleasant? [pp. 42-43]


 
Victims of a war can deny it. Osiel's bookish formulation seems less than relevant to Bosnia and to the very societies that he is os tensibly writing about. The "experience of disagreement" is not at all the same thing as a war or civil conflict. Disagreeing in Congress over Medicare may not be "altogether unpleasant." Disagreeing in the Bosnian parliament over who is plotting a genocide - as the Bosnian Serb nationalist leader Radovan Karad<brev z>ic and Bosnian President Alija Izetbegovic did shortly before Slobodan Milosevic's wars in Yugoslavia spread into Bosnia - is in fact a good deal worse than altogether unpleasant. And that was before the war.

It is true that some of the defendants at the U.N. tribunal in The Hague, for instance, have come to have a less jaundiced view of U.N. justice in the course of their trials. They have noticed that they don't get tortured or starved, that the judges are not in cahoots with the prosecution, that they might get acquitted, and so on. This, however, does not seem likely to rise to the level of deliberation as theorists of deliberative democracy like Amy Gutmann or Seyla Benhabib would recognize it.

In particular, Osiel is worried that human rights trials are some times too easy, that the conviction of the defendants will lack the requisite punch. In order for the clash of narratives to fit his bill, Osiel thinks, the prosecution and defense must be allowed


 
to widen the spatial and temporal frame of courtroom storytelling in ways that allow litigants to flesh out their competing interpretations of recent history, and to argue these before an attentive public. Only in this way can the debate within the courtroom be made to resonate with the public debate beyond the courtroom walls. Just as hard cases can make bad law, so too easy cases can make for poor drama (i.e., within the genre of the theatre of ideas, as a basis for discursive soli darity). [p. 296]


 
For Osiel, trials will only be able to "weave their strictly legal con clusions into a plausible and relatively capacious narrative about the country's recent conflagration" if they "ensure that all antago nists feel they have received a fair hearing" (p. 298).

All antagonists? This seems a bit much. Hermann G<um o>ring, in jail at Nuremberg, was convinced that his trial was purely a matter  [*2114]  of victor's justice, and that the trial was rigged. As he told the prison psychiatrist,


 
as far as the trial is concerned, it's just a cut-and-dried political af fair, and I'm prepared for the consequences. I have no doubt that the press will play a bigger part in the decision than the judges. - And I'm sure that the Russian and French judges, at least, already have their instructions. I can answer for anything I've done, and can't an swer for anything I haven't done. But the victors are the judges ... I know what's in store for me. n23
 
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n23. G.M. Gilbert, Nuremberg Diary 12-13 (1947).
 
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As it turned out, G<um o>ring held up well on the stand under question ing by Robert Jackson, the American prosecutor. But one would no more wish to make the success of a war crimes trial contingent on the opinion of G<um o>ring than one would wish to judge a murder trial a failure because the murderer didn't think he got to air his motivations to his heart's content.

Is it really necessary that a G<um o>ring or a Karad<brev z>ic not just get their day in court, but get to have it to their liking? There are times that call for dialogue, but the situations under discussion in Osiel's book tend to be those furthest removed from the ideals of dialogue. In practice, Osiel's suggestion of widening "the spatial and tempo ral frame of courtroom storytelling" would mean the unenlighten ing experience of, say, hearing a Serb concentration camp guard attempt to justify himself by talking about the Battle of Kosovo Polje in 1389, or about how the "Turks" (the Bosnian Serb national ist epithet of choice for Bosnia's largely secular Muslims, who are roughly as Turkish as Karad<brev z>ic is) were plotting to make Serb women wear the veil. The situations are depressingly close to being zero-sum.

Nor is it clear that a new consensus will only occur from dia logue with the perpetrators. It is clear that the radicals in Serbia and Croatia need to be weaned off their nationalist myths, but it is less clear that courtroom dialogues with the worst offenders will do the trick. The courtroom appearances of Goran Jelisic (who called himself "the Serb Adolf") and Tihomir Bla<brev s>kic (the Bosnian Croat commander who led the sack of Bosnia's Lasva Valley) in The Hague are a matter of imposition, just as the Dayton Peace Accords only worked because they were imposed by NATO's military force and just as the Allied occupation of Germany and Japan was a mat ter of imposition. Jelisic did not just misunderstand the Bosnians; he hated the Bosnians.

Much of the virtue of a human rights trial is precisely that it is not a dialogue. The criminal is stuck. He is not there because he wants to be, or to tell his story. He is not being improved by the experience. He is being judged, and then punished and humiliated.  [*2115]  This might be a source of some comfort to the victims. Watching such a spectacle in The Hague, what one appreciates about a war crimes trial is precisely that it no longer allows the war criminal to set his terms. During the war, the war criminal had the pleasure of the exercise of extraordinary power; now he is powerless. During the war, the war criminal could use his brute force to get attention for his paranoias and bigotries; now he is stuck in a forum where the law gives not a fig for these fictions, only for the stark documen tation of his cruelty.

This is not to say that such imposition is an easy thing. But this, too, points to another problem in Osiel's argument. In most of the recent wave of democratizations, the ancien regime has negotiated itself out of power, usually insisting on amnesty as a precondition for its quiet exit. In a few cases, like Greece and Romania, the authoritarian regime suddenly collapsed, making trials or execu tions possible. But it is unusual to be able to impose one's political will as the Allies did after World War II.

The pattern is one of amnesty. When the dictators and thugs have made amnesty the price of their ouster, there is scant prospect of successful human rights trials. In Argentina, the case in the book with which Osiel has firsthand experience, Menem eventually de cided to issue amnesties. Osiel admits at one point that attempting to prosecute the junta, as Raul Alfonsin unsuccessfully did, risked a military coup and the end of civilian rule (pp. 162-64) - a steep price to pay for a narrative.

If we are in the narrative business, then the moral story of the democratization may come off as an inglorious one that buries the past. Osiel admits that there were rather ignominious political cal culations going on in MacArthur's decision to let Hirohito off with out prosecution, as well as in Alfonsin's legal team, which had to mollify the military during the junta trials. But as Osiel puts it, if MacArthur's team had ever "honestly explained the reasons for their exclusion of the Emperor they would have made a mockery of the trial, discrediting it altogether" (p. 243). Alfonsin, too, Osiel writes, would have made a mockery of the Buenos Aires trials if he had publicly admitted that he was scrapping the trials because he was spooked by the unruly military. Osiel also admits that Alfonsin's pragmatic motivations were clear to most everyone ob serving the Argentine scene (pp. 243-44).

The problem is that such political amnesties underlie most of the recent democratizations. Osiel is recommending that we pursue narratives that, by his own account, will make "a mockery" of the trials among those people who grasp the underlying politics. n24 It  [*2116]  may be true, as Ernest Renan famously said, that "getting its his tory wrong is part of being a nation." n25 But one would like to think that there might be better ways to build a democratic citizenry.
 
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n24. Osiel, in two confusing passages, argues that amnesties are also sometimes good for social solidarity. He writes: "rewriting the national story by such legal devices as pardons, amnesties, and acts of clemency can sometimes greatly further the restoration of solidarity at such times." P. 132. He also notes that the Tokyo war crimes trials "united the Japanese populace in substantial rejection of the story they sought to tell." P. 206.

n25. Ernest Renan, Qu'est-ce que c'est une nation? 7-8 (Conference faite en Sorbonne le 11 mars 1882), in E.J. Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality 12 (2d ed. 1992).
 
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V.
 
Minow, in her skepticism and modesty, is much more typical of liberal political thought on the question of postwar trials. In Legal ism, which remains the single most thought-provoking work on the moral and practical meaning of political trials, the political theorist Judith Shklar wrote:


 
It is not that legalism and law, even in the narrowest juristic sense of the term, do not educate people and do not promote specific values and ideologies, but that their method is limited, and with it the scope of their influence upon the lives of individuals.... On the political level it is thus the manipulative state that is the real rival of the legal istic state, and the policy of inducement, whether by propaganda or by terror and related pressures, competes with the policy of legalism. n26
 
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n26. Judith N. Shklar, Legalism 120 (1964).
 
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These kinds of trials already operate under a huge burden. They must be seen as fair, even in conditions where the require ments of due process must be stretched and where there is massive public and political pressure. If the trial is international - as in the case of Nuremberg, Tokyo, and the two current U.N. tribunals - then national court systems are being amalgamated on the fly, often in ways that are baffling to the participants. At the London Confer ence held to design the Nuremberg court, the American, British, and French delegations had to contend with a revenge-minded and Vishinsky-inspired Soviet delegation, and at Nuremberg they had to deal with Vishinsky himself. If the trial is national, then it will be hugely politicized, under pressures that might tear either society or the justice system apart. These trials tend to be stretched to the breaking point anyway. One might be forgiven for not rushing to add to the burden.

In the aftermath of war and slaughter, it is entirely possible that nothing will work to bind up wounds except the passage of time, maybe measured in generations. Minow and Osiel are both looking for something better and quicker, which is a noble aspiration. But Minow's particular strength is her modesty in the face of such an enormous, miserable task.



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