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Nah, no small things to do. Besuch the red captioning life in Freiburg, with Euron Mellitz, Dörr, Omer, and in the channel, from the book, all the years.
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[MUSIC PLAYING] How do you then deal with a situation which the state itself becomes the agent of criminality? And how do you deal with perpetrators or collaborators who behave
out of what one actually assess person described as the comfort of obedience? How do you deal with crimes of obedience as opposed to crimes of deviants? It's the law fair podcast.
I'm Tyler McGrine, managing editor of Law Fair. Lawrence Douglas, the James J. Growfeld professor of law, jurisprudence, and social thought at Amherst College.
When it comes to something like a crime against humanity or genocide, even if it's conducted within interest stately, within a confined state, you can be some betrayed by any court anywhere. And on one level, you can say,
that's a great thing that's a real vindication of human rights. Also, gives rise to all sorts of possible politicization and impossible and seemingly abuse to my mind. Today, we're talking about Lawrence's new book, The Criminal State. War, atrocity, and the dream of international justice.
Lawrence, you've described your new book in various ways that I've seen. You've called it a revisionist account of the development of international criminal law over the last century or so.
I've also called it a conceptual reconstruction of the field and my favorite, a tale of rupture.
So, first I was just hoping you could give us a bit of a lay
of the land, what you're up to in this book. Yeah, so I do have those three different elevator pitches. In fact, I could even add another one, which would say that the book is about how the field
of international criminal law was both formed and deformed by its response to Nazi Germany. And I guess what I meant by the notion of the rupture or the conceptual overview was that,
“I think if you look at most books about international criminal law,”
they basically treat a Nuremberg as the great early precedent, then you have some problems during the Cold War, then finally you've kind of find a renewed dedication with the UN tribunals in the 1990, and then finally with the international criminal court.
So it's more or less kind of like a somewhat linear story with bumps along the road. And I guess one of the main interventions I'm trying to do in the book is to say that actually Nuremberg approach was this aggression-based approach
which ultimately fails in my mind
and is replaced by the more recent focus in international criminal law on what I call crimes of atrocity. Right, and so this failure of the aggression paradigm leading to this shift
in the atrocity paradigm. At least for me, this narrative placed that shift a lot earlier. The aggression paradigm seemed... Sooner, maybe doomed is too strong of a word, but sooner than I, at least I had previously conceived of it.
So where do you see this shift having happened? Where do you, of course, have been inactive? Yeah, well, maybe I should just explain to a tad more fully about what I just mean by the aggression paradigm. And if you go back to Nuremberg,
today, when people look at Nuremberg,
“I think they tend to think about Nuremberg”
almost as a Holocaust trial. And in fact, I've been to a number of conferences which almost kind of treat Nuremberg that way. But in fact, that wasn't what Nuremberg's main focus was.
It was not focusing first and foremost
on the Nazis' crimes against humanity. The main focus of the Nuremberg trial was on the war of aggression that Nazi Germany had launched both on the west and the east. And that war of aggression
in Nuremberg is called crimes against peace. And it really was the centerpiece of the prosecution's focus and the judgment on the international military tribunal in there, concluding judgment.
The judges of the Nuremberg court describe the crime against peace as the supreme international crime.
Part of the idea was,
you know, Nuremberg was trying to create this kind of edifice
“of international criminal law for the post,”
where period and the notion was that by focusing on aggression, aggression would really be the centerpiece of this emerging system of international criminal law. And that's really kind of what I mean by the aggression paradigm. This focus on aggression
as the centerpiece of this emerging system of international criminal law. And as you point out Tyler, I try to argue in the book that that focus, that paradigm, it's not just unravel really quickly. So sometimes when people refer to Nuremberg
and sometimes people refer to the Nuremberg trials in the plural. And just to kind of remind your listeners by singular, we're really talking about the international tribunal,
first basic international criminal court in human history,
collaborative exercise by the United States, Soviet Union, France and Great Britain. And the Nuremberg trials plural, that refers to these 12 subsequent trials that were conducted by the US military,
basically in the same courtroom as the international trial. They had this nice sort of wood panel courtroom in the Pals of Justice of Nuremberg. And the American military conducts these 12 subsequent trials of total of about 185 defendants
and that trial program of the American military is meant to build on the Nuremberg focus on aggression. And rather than contributing to that emphasis, it ends up kind of unravels it. And the unraveling kind of leads to a much greater focus
on crimes of atrocity, war crimes, crimes against humanity and then this kind of emerging concept of genocide and much less of a focus on aggression. And we see that same trend occurring in the companion trial to Nuremberg that takes place in Tokyo,
the so-called international military tribunal for the far east. Yeah, I want to pick up on that. I mean, the line that you talk about, the famous line from,
“I believe the final judgment of the Nuremberg trial”
that the more of aggression is the supreme international crime and that it contains within itself the accumulated evil of the whole. It almost seems that this would fall on contemporary ears in a bit of an odd way, given the, as you mentioned, the popular conception of Nuremberg as focusing
on the intrastate crimes of the Nazis and interstate, I guess against especially the Jews. I guess, yeah, I want to talk about more of how this shift happened of the subsequent trials, but then also of the trial, it, I think, in 1961 in Jerusalem, how did that trial also continue
to contribute to this shift? Well, so, just focusing on the quotation that you just mentioned, that this is the supreme international crime again. This was the holding of the court at Nuremberg, and it contains within itself the accumulated evil of the whole.
And another way to put that is that they basically, this is the Nuremberg Tribunal, basically treated war crimes and these crimes against humanity, which is the term which they use to bring in evidence of the extermination of the Jews of Europe, they kind of treated them
as knock-on effects of the war of aggression. So, basically, the idea is, hey, if you didn't have the criminal war of aggression
in the first place, you never would have had war crimes
or extermination either. So, they kind of treat him as knock-on effects. When you go to the Aishman trial, the Aishman trial, this is the trial that takes place in Jerusalem, in 1961, of Adolf Aishman, who really wasn't what we might describe
as a major figure within the Nazi state, but we can kind of think of him as the chief logistical officer of the extermination policy of Nazi Germany. He's basically the one who kind of worked out the logistics of sending over a million Jews, largely from Western Europe,
to these killing centers in the east. And that trial very consciously tried to decouple or move away from the logic of Nuremberg, and really tried to say, no, when you're talking about this kind of state-sponsored extermination, state-sponsored genocide,
that's kind of a crime sewage in there. It's a unique crime, and you can't simply understand it as a knock-on effect from the war. It really was a crime that has its kind of own logic, its own meaning, and it has to be understood differently.
“And I think that trial, which really galvanized,”
a tremendous amount of attention, not just an Isra where it took place, but in specifically in West Germany and the United States, it really worked to kind of elevate the status of these atrocity crimes.
Again, what I would say, first and foremost,
genocide crimes against humanity, also, maybe a little lesser to degree severe war crimes, really kind of saying, those crimes, they are the chief crimes in international criminal law, and they deserve more of our attention than does, let's say,
state aggression. And there was this a conscious choice by, let's say, the prosecutors and the actment trial, was this a strategic choice. What motivated this continuing the shift,
“especially in the prosecution of eight-off actment?”
Well, I think there was, particularly among, let's say, Jewish observers, there was a lot of unhappiness with the Nuremberg trial. Nuremberg was largely a trial by document. If you look, for example, of the number of Jewish survivors
who testified at Nuremberg, only three of them testified. Their testimony, I think, if you kind of just count the number of pages, I think their testimony sums up to about 100 pages of transcript in a over 10,000 pages of the Nuremberg transcript. And so there was a, there was a pretty strong sense that Nuremberg
failed to do adequate justice to the extermination of European Jews. And so in that sense, the ice-cream trial really tried to reverse that. Really tried to say, look, this is not a trial about aggression.
“This is a trial of what we think is the more foundational offense.”
So it's not as if they were engaged in, you know, a direct attack of what I would describe on the aggression paradigm, but they certainly were very consciously attempting to create a trial that would galvanize interest on the genocide of the Jews of Europe.
Another thing that basically contributed to the success of ice-cream
is, you know, as I mentioned, as I just mentioned, Nuremberg really focused on documents. And the idea of the prosecution was documents, you know, that it's harder to impeach documents that the Nazis themselves produced their kind of sturdier evidence than eyewitness testimony. At the same time, it contributed kind of to a dullness of the Nuremberg trial.
You know, everyone kind of thought Nuremberg was going to be this spectacular, you know, basically illegal spectacle, and in fact, in the words of Rebecca West, this famous journalist who covered the trial who incidentally also had an affair with the American judge on the trial of Francis Bittel. But Rebecca West kind of famously described Nuremberg as a citadel of boredom.
Largely because the prosecution spent a long time just reading documents allowed in the courtroom.
And at Iceman, the Iceman trial also tried to correct that by basically
organizing the trial around the testimony of survivor witnesses, and that also played a big role in galvanizing attention to the trial because the survivor testimonies really were quite riveting. And they did a quite good job of vetting the witnesses in advance to make sure that basically good courtroom storytellers would be asked to testify.
I want to bring in the title of the book and the concept of the criminal state. And to do that, I would love to hear why you chose to start the book where you did, which is this debate in Germany, over statute of limitations for my much more ordinary
“or presaic crime, if you want to put it that way of murder.”
Of course, this is much more complicated given in post where Germany, given the crimes of the Nazi state, take us to the beginning of the book. Why did you start it there? This is kind of interesting. Germany, I think, has the deserved reputation of being a state,
which has done a pretty good job of confronting this horrific past
and that's represented in the third Reich.
At the same time, if you look at the German legal system, it compiled a pretty pathetic record of dealing with, you know, in prosecuting former Nazis, many, many of which ended up living in particularly West Germany, and then, you know, come 1990, would just now call the Federal Republic of Germany once,
each Germany basically disappears. And one of the things, this is kind of, you know, legal technicality, but your audience love legal technicalities. So, crimes against humanity and genocide. Crime to get to humanity is first recognized as an international crime,
basically at Nuremberg. So, we're talking about obviously after the war. Nuremberg, the main trial takes place from, you know, November 45 until October 46. Genocide is first recognized as its own free standing independent crime
International law, 1948 with the UN Genocide Convention.
Very first convention that is passed by the fledgling United Nations.
What German jurist decide in the very early years of the Federal Republic, West Germany at the time, they decide that charging former Nazis with crimes against humanity or genocide would be a violation of the new basic law of Germany, because it would represent using retroactive law.
Again, it's sort of a kind of crazy conclusion. No of the European state accepted that, but basically it was like because these laws against crimes, crimes against humanity and genocide were only first recognized as law. After the war, you can't use them as prosecutorial tools
because that would be a violation of the bar against using a retroactive criminal statutes. Kind of a crazy conclusion. Well, that meant that they had a rely on a domestic law that was in place basically during the third Reich for the purposes of prosecuting people who were responsible
for Nazi area atrocities. Statue that they were lying is the murder statute, but the murder statute was actually controlled by a statute of limitations. And it was a 20-year statute of limitations
“at the time that this important interview takes place.”
So with that meant that 20-year statute of limitations meant that, come 1965, the statute of limitations on all Nazi era crimes was about to toll. So come, you know, May 8th, the end of the war in Europe in 1945, come May 8th, 1965,
the statute of limitations was about to run. So this created this kind of really interesting interview that took place in Dashbeagle, the German newsweekly, in 1965, between Rule of Agedine, with famous publisher in Germany at the time,
Randy Spiegel and Carl Jaspers,
was arguably the most important living philosopher.
And they're arguing about this whole notion about whether statute of limitations should be extended, which really had turned into kind of not just a national debate, but an international debate, because people were Paul by the idea that way to second,
come May 1965, German prosecutors are going to be unable to charge any SS man, anyone associated with Nazi genocide with anything. And one of the things that Carl Jaspers, one of the arguments that he makes in talking about the urgency
of extending the statute of limitations,
“he basically says, you know, you have to reckon”
that the Nazi state was something completely different than anything we've seen before. It was a fabrachia stop. Fabrachia stop just translated as criminal state. And by criminal state, I think he critically was trying
to make a distinction between, let's say, a bad regime on the one hand. We've seen many, many bad regimes of the course of European, and we can say even American history. But a criminal state for him was a state in which,
basically, every major apparatus of the state, let's say, it's bureaucracy, it's military, it's administration of justice. All of these basic institutions have been turned towards criminal ends. And for Yaspers, he was really trying to get it something,
you know, I think he's just trying to emphasize the how novel that was and how that kind of a represented a rupture with standard kind of political understanding of Western states.
“And what was the upshot of this label of the criminal state?”
As you mentioned there were several challenges associated with the aggression paradigm, but also several new challenges arise out of this concept of the criminal state. Could you talk a bit more about that in raising this concept?
Yeah, so I think for Yaspers, and he wasn't the only one who used this term criminal state, Hannah Arant in her kind of famous book, "I've been in Jerusalem." She also talks about the Nazi state as a criminal state.
You have other people also kind of using this parlance. And you know, part of it was trying to show just kind of conceptually how difficult it was to metabolize given kind of long standing beliefs in, you know, Western political thought,
legal thought about the kind of normative distinctiveness of Western states. Now we can kind of interrogate those assumptions,
but there was a pretty powerful ideology,
which associated Western statehood with basically the apagy with the height of human civilization. And suddenly, you know, how do we make sense of the fact that one of the great pillars of civilization,
Germany, the land of Dishdo and Denka of poets and thinkers,
that it suddenly became this completely deformed agent of criminality. So that was one thing kind of this conceptual challenge of how do we metabolize that. And then, or generally, you know,
anyone who has studied law knows that criminal laws usually understood as a domestic system. And in that domestic system,
crimes are basically kind of considered deviant acts.
Now, deviant acts, I don't mean that they're committed by, you know, deviant personalities, but just deviant on the definitional sense that it's the state that defines what crimes are. And criminal behavior deviates from the norms and laws
that the state has created. Well, how do you then deal with a situation
“which the state itself becomes the agent of criminality?”
And, you know, how do you deal with perpetrators or collaborators who behave at of what one actually assess person described as the comfort of obedience? You know, how do you deal with crimes of obedience as opposed to crimes of deviants?
And so, I think those are kind of two of the things that Yaspers and people like Aaron were trying to get at,
but the challenges posed by the advent
of this thing they called the criminal state. Yeah, and let's get into some of those challenges. I mean, I think on the one hand, this may sound familiar to anyone who knows that a lot of international criminal prosecutions are
levied against those in command and control positions, for example, but maybe a more lay-less iner could hear this idea of the criminal state and worry that it would absolve individuals within the state of any sort of criminal liability or accountability,
but it doesn't quite do that.
“And one of the reasons you bring up of why the criminal state”
may be a helpful concept is because, you know, not every person in the Nazi state fits the stereotype of this SS socio path. So talk about some of those trade-offs there with this concept.
Right, so, and it's kind of, as you're suggesting, Tyler, one of the things that I'm talking about in the book when I use the term criminal state, so I'm not trying to make it. I'm not looking at the literature,
and there is a literature that says, maybe we can actually try a state as a criminal
or a criminal, basically as a criminal itself.
So there is an attempt by some, you know, legal thinkers to kind of import concepts from corporate criminality, because under certain circumstances, you can actually treat a corporation as a criminal. And they try to argue, maybe we can treat a state as a criminal.
Well, that's not really my concern.
“My concern is how the agents of the criminal state,”
the perpetrators, the leaders, the perpetrators of the crimes of the criminal state, the collaborators, and accessories in the crimes of the criminal state, have they can be prosecuted. And again, to look at the prosecutorial problems that arise
when you're basically dealing with, you know, members of a state apparatus who are participating in crimes. And one of the things that, you know, I also try to point out in the book is, if, like, at Nuremberg, you're really focusing on the crime of aggression.
The crime of aggression is almost by definition a leadership crime. The only people who can be charged with the crime of aggression that is for launching, you know, an aggressive war are the very top echelons of the state, because they're the only ones who really have the power
to make those kinds of decisions. But if you turn to crimes of atrocity, you know, things like genocide, crimes against humanity, well, those are more what I could describe as vertical crimes. And by vertical crimes, I simply mean they often run from, you know,
the very heads of the state through a bureaucratic organization all the way down to frontline perpetrators and accessories. And there you're talking about, you know, tens are even hundreds of thousands of people who could be implicated in the crimes of the state.
And that obviously creates enormous prosecutorial problems. You know, any kind of prosecutorial program then is going to be in certain ways a symbolic program. And, you know, on some level, even a successful prosecutorial program
is almost going to highlight the, in a relative impotence of the prosecution to kind of mount an adequate response because it's going to be, you know, just a fraction of the total people who are responsible
and the prosecution is almost going to highlight the, you know, the discrepancy between the law's sanction, even if it's a severe sanction
The magnitude of the crimes that are being prosecuted.
No, no, no, it's not a plan for an innocent end.
Visit the Root-Gapchinellepeness World in Freiburg with Euron Mellitz, Dürr-Omer or in the Kerala Typen von Neben, in the Dienigen alle Jaggänge, and take our interactive Ausstellung by the Littens Tour
with Audio Guide and Eimglasseck and the Niestem Parvillon, the Gants, from Root-Gapchinellepeness World, new Eimeseckling and Found. And before we turn to the new challenges
that arise out of the shift to the atrocity paradigm, could you just close the loop for listeners of, of slotting this idea of the criminal state into this shift from the aggression
to the atrocity paradigm. Again, why did you seize on this concept to explain the way and the why of this shift? Right, so I think, if you go back and, you know, if we talk about a criminal state,
one question you could come up with is, you know, what's the paradigm at a crime of that criminal state? And obviously Nuremberg had a very clear answer. Its answer was aggression. That said, you know, one of the things I try to point out
the book is Nuremberg had a pretty confused understanding of what they meant by the crime of aggression. So if you even look at the charter of the Nuremberg tribunal, Nuremberg sets out three substance of crimes that the 22 defendants were being tried for.
Crimes against peace or war of aggression, war crimes, crimes against humanity. And if you look at the charter's definition of war crimes, it's pretty clear that give a pretty precise definition. You look at their definition of crimes against humanity.
Pretty precise definition. You look at their definition of crimes against peace. There's no definition at all.
They basically punt on the definition.
“And the reason I think that is pretty important”
is because even at this London conference, it takes place in the summer of 1945 before the trial starts in which delegates are hammering out the details of the trial. You know, basically working out the exact structure
of the charges, structure of the court itself. You have this really interesting conversation that takes place between Robert Jackson, and he's on leave from his position as a sociologist on the US Supreme Court,
to basically run the US prosecution. And this Andre Gross, who is a French professor of international law, who's also a delegate at the London conference. And one of the things that Andre Gross asked Jackson,
he says, well, wait a second, what makes a war of aggression criminal? If there are no war crimes committed in its prosecution, and there are no crimes against humanity. Just not sure why is, let's say, violating the territorial integrity
of another state, why is that a criminal act,
“if it's not a city with any war crimes or crimes against humanity?”
And Jackson basically kind of gets all impatient and says, you know, that's ridiculous. Look at what Dazi Germany has done. The way they've waged their war of aggression is through war crimes and crimes against humanity.
And that basically is exactly how the prosecution and the court at Nuremberg accept the crime. But that question that Gross has asked Jackson
and has never sat as fair to the answer.
It basically haunts post-Nuremberg efforts to define this crime of aggression. It becomes very, very difficult. Whereas if you're dealing with something like genocide or crimes against humanity,
we have pretty solid definitions and we have a pretty solid idea that a genocidal state is a criminal state. Because you've brought up Robert Jackson now all I can picture is Michael Shannon
who portrayed him in the last years, movie Nuremberg. So as tempted as I am to ask you, what you thought of the Nuremberg film with Russell Crow last year.
You're welcome to ask me. What did you think? I thought it was pretty poor. I thought it was a pretty poor movie. I thought, Russell Crow is very good as guring.
But I thought both, you know, the actors who play the psychiatrist and the actor who plays Robert Jackson, very good actors. But I thought they were pretty badly miscast.
“And, you know, if you want to see a great Nuremberg movie,”
I would see just going back to Judgement at Nuremberg, which is not about the international tribunal, but about one of the American trials. But that's a great movie. That old Spencer Tracy movie.
But anyway, didn't love it. I hope most of our listeners have seen that, but if not, we will put it in the show notes. But you know, one thing I was trying to parse
When reading your book is what you think
normatively of this shift, whether it was prudent or appropriate or good. And because you do such a great job, also of raising the new challenges associated with the atrocity paradigm
in terms of jurisdictions, BACO temporal challenges. This belatedness problem that you talk about. So, what were these new challenges that arose out of the shift
to the atrocity paradigm?
Well, to just answer the first thing you mentioned,
I do think it was appropriate to shift to atrocity crime.
“So, I mean, I think that really is something like,”
I think it also connects with the development in human rights law. I think human rights law actually develops in part response to this shift and an attentive to this shift.
So, you know, on some level, I think it's normatively correct, I think it was almost, you know, in a way, also legally inevitable. But, as I try to point out in the book,
there are big problems with the prosecution of these crimes of atrocity. And some of the problems have to do with, you know, the jurisdictional problems, some have to do with these temporal problems.
That's what I was talking about, the way in which these crimes of atrocity explode, you know, spatial temporal limitations that we normally associate with criminal law. And if that sounds overly abstract,
all I mean by that is two things is, you know, one thing is that these crimes of atrocity, they have no statute of limitations. So, beginning of our conversation,
“we're talking about the unseemly struggles”
that Germany went through in, you know, having to rely on its ordinary murder statute of, you know, the prosecution of World War II era atrocities. Well, these crimes of atrocity, they aren't controlled by any statute of limitations.
And so, as a result of that, you kind of get these super-annuated trials.
In fact, Germany ultimately faces all this pressure
to abolish its statute of limitations from murder and does so. So, you have these, you know, bizarre things like, I think of the book I mentioned this, a trial of, "Im God Fish Now."
She was the secretary to the common aunt at the Stutthoff concentration camp. She was convicted in a courtroom in Germany when she was 97 years old. So, just recently, just a couple years ago,
she was convicted. But the bizarre circumstances she's ends up being tried in a juvenile court why because her original tenure
as a secretary to the common aunt at Stutthoff began when she was 17 years old.
“She hadn't yet reached the age of maturity”
under German law. And so, this trial that takes place 80 years later of a 97-year-old woman has to be conducted in a juvenile court.
So, it raises all these kinds of issues about what are the purposes and justice of these, you know, really, really belayed, you know, late in the day trials.
And then there's also the spatial element that these crimes of atrocity
they basically give rise to this thing
called universal jurisdiction. A universal jurisdiction is basically the idea that jurisdiction is conferred simply by the nature by the severity of the crime itself.
So, for example, if you go into a convenience store here in the United States and you, you know, murder a clerk in a convenience store, that's certainly an awful, horrible thing.
But is it a universal crime that you can be tried for if you actually, you know, fly for vacation, let's say, to, you know, anywhere, let's say,
Sri Lanka could just Sri Lankan court try you for murdering someone in a convenience store in the United States. They just clearly know.
But when it comes to something like a crime against humanity or genocide, even if it's conducted within interstately, within a confined state,
you can basically be tried by any court anywhere. And on one level, you can say, that's a great thing that's a real vindication of human rights.
But it also gives rise to all sorts of possible politicization and possible and seemingly abuse to my mind. So, the Aussie paradigm,
as you mentioned, is in turn led to new legal concepts, which in turn raised their own challenges. But another upshot of the attempts to get around
this belatedness problem, perhaps attempts to avoid the awkwardness of this child that you mentioned that, you know, it's one of those moments
that's kind of like, what are we doing here? You took it to an interesting place to me, which is connecting it to this desire to avoid
The crimes ever happening,
and the way to do that is through humanitarian intervention, as it's called. So, this responsibility to protect doctrine.
Can you talk about that connection? I thought that was a really interesting strain there. Exactly. And I really think that that
is an important upshot. You know, I think, you know, if you're really thinking about the logic of trying to fight atrocity crimes,
well, any kind of juridical response, any kind of prosecutorial response, it's kind of after the fact, you know, the atrocities have already occurred.
And anyone who thinks that,
well, it still has an incredible value
because it's going to deter some future regime from engaging in genocide.
“I think that's a pretty naive assumption.”
I don't think these, these genocide prosecutions have any kind of real deterrent effect, or if they do, it's impossible to say.
I mean, how do you make an argument for a negative effect? So the logic really pushes to a more robust response. In fact, if you look at the genocide
convention itself from 1948, that basically says, there's an obligation, you know, to make sure that these things don't happen.
And that seems to push the direction of subtype of intervention. And by intervention, we really kind of,
ultimately, I can suppose,
mean, you know, military intervention. And if a genocide is on going, then it's going to pull a lot of pressure on,
you know, some really kind of rapid military intervention. And that itself is an incredibly fraught thing.
You know, this so-called, uh, wars of humanitarian intervention now.
Some people might say that very concept. War of humanitarian intervention is oxymoronic.
But it did, you know, seem to be relatively successful in the case of the NATO air war over Kosovo in 1999. And yet,
if you look, for example, at the UN authorized intervention in Libya in 2011,
which was, you know, under the kind of, retooled the doctrine of humanitarian intervention,
“and called it responsibility to protect.”
That turned into an absolute catastrophe. And even now, you know, I don't want to necessarily draw a direct connection to what's going on on Iran. But anyone who thinks that you can get rid
of some really nasty regime in a simple way, and therefore stop it from engaging in atrocities against its own people. That's pretty naive as well.
And obviously, we've learned the hard way about the difficulties of engaging in anything remotely like regime change, even in circumstances when it seems entirely justified
and in the interest of some type of, humanitarian concern. Right. So if we take this idea of humanitarian intervention as at least one attempt to overcome
or sidestep the challenges associated with atrocity trials, there are still, as you write about benefits, or there is still value in the atrocity trial beyond what a trial can accomplish
in terms of delivering justice. I'm speaking about these, what you call, die-dactic elements. So what are,
what is still the value, though, or, yeah, the benefit of an atrocity trial even given its associated challenges? Yeah.
Yeah. Even given its limitations, I agree completely. And in the book I do try to say, look,
there's an unmistakable value to these trials. And part of the value is, you know, it's a kind of symbolic expressive value. They do have a tendency to kind of galvanize
international intention, which I think is important. I think the idea of a genocide air living out their life in the comfort of a home
just rubs is all the wrong way.
“So I think there is an important expressive function”
in saying, we are not going to permit this crime of this magnitude to go unpunished. And obviously they can perform these other functions. They can give survivors an opportunity
to unburden themselves in a public setting. You know, I think we almost,
I'm not the first person to observe this,
you know, the way in which we kind of live in this age of testimony or this kind of this age of victimhood. And so, you know, these trials do perform a valuable function
in that they perform almost kind of a public recognition of the suffering, or they commemorate the suffering of victims of these mass atrocities. You know,
they also can play a positive role in developing
A preliminary historical,
you know,
responsible historical count.
Now, there are some people that say, quote rooms are not the best venue for creating a history of a difficult episode. Leave that to professional historians.
I would kind of challenge that.
“I think very often these trials do a pretty good job”
of not just creating a archive that future historians can work from. But also from just, you know, establishing the outlines of a pretty responsible
history that can guide political understandings of, you know, a really unfortunate episode in a human history. And again,
I don't want to necessarily over-emphasize this. I'm a little skeptical sometimes of this term transitional justice. But I think, you know, these trials can also,
in a way, help criminal states, or, you know, bad regimes, or not everything has to be criminal state.
But, you know, some kind of, a regime that has engaged in mass crimes to transition to some kind of more positive democratic future.
Now again, I would take that with a grain of salt. But I think it's, we shouldn't overlook at least the partial capacity
of these trials to contribute to these positive ends. No, that's a really helpful transition to where I was hoping to end, which is a place of cautious optimism.
If you want to put it that way, you know, it's, I often struggle to end discussions about international criminal justice
and international law, especially right now on, on such a note. But I did stumble upon something that you said to,
I'm guessing, in their column, near times call, I believe, several months ago,
or you said, some people say that the glass is 9/10 empty, when it comes to international justice, or the history of international justice.
But you, like to say, it's 1/10 full. So I think, I think that's created,
categorizes, as cautious optimism. Where do you see this paradigm, that is still, I guess,
hegemonic heading, and in terms of addressing these challenges and limitations, why do you see international justice as one-tenth full rather than 9/10 empty? Well,
again, we don't want to end on a bummer. So, you know, obviously there are a lot of reasons to be concerned about what's going on in the world today,
especially when it seems like, you know,
you have these three most powerful states who seem to be operating with some type of,
impunity. And, you know, if people like Stephen Miller got a lot of attention, basically saying that, well,
foreign relations are based entirely on force, and basically, it makes right, which is, you know,
kind of a reversal of the whole project that emerges at of, Nuremberg through today, whether you're focusing on aggression, or you're focusing on atrocity, that actually,
there is not just norms, but there's law that is meant to constrain, even the most powerful state actors. And, you know,
“does that law operate on these powerful state actors?”
Well, you know, you can be pretty pessimistic on it, but, you know,
I think we need to have realistic understandings. You know, even if you look at something like the Yugoslavia Tribunal that the UN created in the early 1990s, to deal with the atrocities of the merch out of the civil war there.
You know, the knock on that tribunal was, oh, it's only going to be try small fish.
It's never going to get the big guys like Slubboon and Milosevic,
the former president of the server public. It's never going to get Radovon Karatech, who was the president of this breakaway, Republic of Serbska. It will never get Radovon Lada,
who is the general who is responsible for the, September needs a massacre in 1995. And, lo and behold, to the surprise of everyone,
the tribunal ended up getting all three of those. And, you know, Milosevic dies during his trial, but in the case of Karatech and Ladak,
they're both convicted, given life terms. And, you know, is that predicting that Vladimir Putin is one day going to see his,
you know, be put on trial at the hay? No, I'm not necessarily predicting that, but again,
these things are very difficult to predict. And,
“so that's why I like to emphasize the one tenth full,”
rather than the nine tenths empty. Well, that does seem like a good place to end. The book is the criminal state, war atrocity,
and the dream of international justice. It's really riveting history and, unfortunately, also extremely relevant and urgent to today. Lawrence Douglas,
thank you so much for joining me. Real pleasure talking with the Tyler. Thanks so much. The lawfare podcast is produced by the lawfare Institute. If you want to support the show,
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