After Genocide
California Lawyer

After Genocide

Bringing the Devil to Justice

December 2009

After Genocide: Bringing the Devil to Justice by Adam M. Smith, Prometheus Books, 441 pages, $27.98, hardcover




International criminal justice is the laudatory process by which an internationally sanctioned criminal court tries those responsible for genocide, war crimes, and crimes against humanity. The institutionalization of this process?begun in 1945 with the trials of high-ranking Nazis in Nuremberg, swiftly abandoned with the advent of the Cold War, and then resurrected in the 1990s in the postCold War era?aims to bring to justice those considered hostis humani generis ("outlaws of all mankind"). The establishment of the two ad hoc International Criminal Tribunals, for Yugoslavia (ICTY) in 1993 and for Rwanda (ICTR) in 1994, and thereafter the founding in 1998 of the permanent International Criminal Court (ICC) at The Hague are viewed as triumphs of the legalist legacy of Nuremberg.

But in After Genocide: Bringing the Devil to Justice, international lawyer Adam M. Smith questions the entire enterprise of international criminal justice. Smith confesses that he was "still stuck in 1945" before embarking on various stints as a professional observer of the international criminal legal processes in The Hague and in Arusha, Tanzania (site of the ICTR), as well as a private road trip through the Balkans to see firsthand the impact of the ICTY trials on the local populace. Chastened to discover that support on the ground for these tribunals is at best lukewarm, Smith lays out a caustic critique against using international courts to prosecute individuals for international crimes. Rather than celebrating Nuremberg and its progenies, he questions the outsourcing of local justice to far-away places (such as the Netherlands) or to local courthouses operating in cocoons wholly outside the domestic legal systems in place.

Political leaders and their accomplices, Smith believes, should be tried before domestic courts to have the maximum impact on the societies in which the atrocities took place. He writes, "Tokyo, Nuremberg, and the more recent cases of international justice have all been Band-Aids for much more serious social problems, problems that allowed the violations to occur in the first place. ... [S]imply having some trials of senior leadership does not necessarily result in either a society that respects the fact that such crimes ever occurred or a society that is truly chastened so that such crimes are unlikely to recur."

After Genocide provides numerous examples of how "[d]ecamping justice to a location out of the country" can have negative consequences. Take the trial of Slobodan Milosevic. At the time of his arrest in March 2001 in Belgrade, the Serbs were ready to try him in their own courts for the myriad crimes he had committed while in office, including corruption. At the insistence of the Europeans and the United States, however, the Serbs transferred Milosevic to the custody of the United Nations, and he was flown to The Hague to stand trial for genocide and other international crimes before the ICTY. So what did that trial yield? Not much, apparently. "At the time of Milosevic's death [in 2006]," Smith writes, "his trial had spread out over four years, had heard from more than three hundred witnesses, collected thousands of pieces of evidence, and cost more than $200 million-and was not yet finished when he died."

The $200 million spent by the ICTY on just this one trial, of course, could have gone a long way to help rebuild the domestic legal systems in Serbia. And the $2 billion that the ICTY spent during the past 17 years could have reconstructed the entire legal system of the Balkans. Yet, as Smith notes, "The justice system in most of the former Yugoslavia?ranging from courtroom facilities to legal education, to police reform?remains only minimally improved since the days following the civil war [of the 1990s]."

This is a fine book, written in a non-scholarly style, and it brings a much-needed counterpoint to the all-too-often-unchallenged view that the only way to find true justice in the aftermath of a genocide is through an international tribunal.

Michael J. Bazyler is a professor at Chapman University School of Law in Orange.

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