A book for Mr Kostunica
by Noel Malcolm
Book review - Gary Bass, Stay the Hand of Vengeance: the politics of war crimes tribunals
When the prison psychiatrist at Nuremberg, in search of a grisly souvenir, asked Hermann Göring to sign a copy of his own indictment, the prisoner obliged with a sententious little inscription: ‘The victor will always be the judge, and the vanquished the accused.’ On this point at least, many people today sympathize with the Reichsmarschall; it has become quite the fashionable thing to dismiss all war crimes tribunals including both Nuremberg and the one now sitting at The Hague, as examples of mere ‘victors’ justice’.
Why those two words should be thought to contain any compelling argument against such tribunals is, at first sight, a mystery. Obviously, the vanquished would not have been brought to trial unless someone had been victorious over them; and if ‘justice’ means what it says, it is hard to see why anyone should be against it.
But the innuendo is that ‘victors’ justice’ is not real justice at all. This, we are told, is justice à la Clausewitz, the pursuit of political aims by other means. It is said to reek of hypocrisy: after all, as the critics never fail to remind us, the chief Soviet jurist at Nuremberg was none other than Andrei Vyshinsky, the infamous prosecutor of the Moscow show trials.
Of all possible criticisms of Nuremberg, the claim that it was a political show trial is – as Gary Bass points out in this major new study of the history of these tribunals – the easiest to rebut. Its methods and procedures were quite unlike those of the Stalinist judiciary, and some of its decisions, such as the acquittals of Schacht and von Papen, caused genuine surprise and anger (not only in Moscow). Particular aspects of Nuremberg can indeed be faulted. But in reply to any general condemnation of it, one must always asks the question: ‘So what should the Allies have done instead?’
If ‘justice’ means following a legal process, then the obvious alternative to victors’ justice is victors’ injustice – in other words, execution without trial. Joseph Stalin would have been perfectly happy with this; indeed in 1943 he told Churchill at the Teheran conference that, at the end of the war, 50,000 Germans should just be taken out and shot. Churchill’s horrified reaction was prompted more by the scale of the proposal than by the principle; he himself was in favour of summary execution for up to 100 top Nazis, and trials for all the rest.
In Washington, meanwhile, a bitter policy dispute was brewing between the Treasury Secretary, Henry Morgenthau, and the Secretary of War, Henry Stimson. At first Morgenthau proposed executing all Nazi Party members; on being told that there were 13 million of them he began to moderate his demands, ending up with a figure of 2,500. Stimson, who held out for the principle of legal process, was on the losing side of this debate for several months, until the leaking of Morgenthau’s punitive plans for post-war Germany set off protests in the American media.
From a distance, the Morgenthau-Stimson dispute looks like an example of the age-old conflict between hard-headed realism (Morgenthau), which we associate with the Right, and soft-hearted idealism (Stimson), which we place on the Left. The truth, as Gary Bass shows, is more complicated and more interesting. Stimson was a dry Republican, Morgenthau a New Deal Democrat; and the key to Morgenthau’s passion on this subject was his special sense of horror at the Jewish Holocaust.
The clash, therefore, was not between idealism and realism, but between legalism (Stimson) and anti-legalism (Morgenthau). In this case, anti-legalism was based on passionate moralism; but in the case of Stalin, a curiously similar anti-legalism was based on the very opposite thing – habitual and profound immoralism.
What about the case of Churchill? At the root of his reluctance to put the leading Nazis on trial lay his own experience of the aftermath of the First World War, when attempts at high-level war crimes tribunals had ended in ignominious failure. The Versailles Treaty had specified such trials, and several were held under German judges in Leipzig, prosecuting people on lists put forward by the victorious Allies; but leading suspects disappeared into thin air, and several of the figures who were tried received absurdly light sentences.
Few writers on Nuremberg have bothered to look at those earlier Leipzig trials; Gary Bass considers them in fascinating detail. In addition, he explores their even stranger counterparts, the 1919 trials in Istanbul of senior Ottoman officials accused not only of war crimes against the Allies, but also of responsibility for the Armenian genocide. (The charge here was ‘crimes against humanity’ – a phrase which, according to all the standard history books, was not invented until 1945.) Here too the judges were local, and the trials descended into farce. A lesson can be learned from both Leipzig and Istanbul: one thing worse than victors’ justice is the justice meted out by the vanquished on themselves.
There are plenty of other lessons to be learned too – many of them helpfully set out in analytic chapters at the start and finish of this book. Bass notes that, however high-minded their calls for justice, governments tend to pursue the war crimes issue most actively when they think that their own political interests will be served thereby. His masterly study of the international politicking surrounding the war crimes tribunal for the former Yugoslavia gives ample confirmation of that. In the end, nevertheless, he comes out broadly in defence of war crimes tribunals, on the grounds that they are the least bad option available; and he also argues that there is a correlation between ‘liberal’ regimes and the preference for such a ‘legalist’ approach. (Some might object that the reason for legalism can be more various than that: the first case-study he considers, that of Wellington’s refusal to allow the summary execution of Napoleon, has less to do with liberalism than with the Iron Duke’s feeling that gentlemen just don’t do that sort of thing.)
Written with enviable lightness of touch, but fortified with a mass of serious scholarship in the notes, this is a model study of a complex subject. Its ‘least bad option’ argument is dispassionately made, and highly persuasive. A copy of this book should be sent forthwith to Mr Kostunica in Belgrade – who, it seems, still needs a little more persuading.
This review was published in The Sunday Telegraph,
15 October 2000