Vol. 16 No. 3 (March, 2006) pp.233-237

NOWHERE TO HIDE: DEFEAT OF THE SOVEREIGN IMMUNITY DEFENSE FOR CRIMES OF GENOCIDE AND THE TRIALS OF SLOBODAN MILOSEVIC AND SADDAM HUSSEIN, by Michael J. Kelly.  Peter Lang, 2005.  272pp. Hardback. $ 79.95/£46.90/ €67.00.  ISBN: 0820478369.  Paperback. $29.95/£17.60/€25.20. ISBN: 0820478350.

Reviewed by Thérèse O’Donnell, Law School, Strathclyde University. Email: therese.odonnell [at] strath.ac.uk.

This is a story of crime and punishment (p.xvii)

In the weeks following the resignation by Judge Rizgar Amin in Saddam Hussein’s trial and the death of Slobodan Milosevicit seems particularly prescient to be reviewing Michael Kelly’s book which lauds the brave new world in which there is an end to immunity for leaders like Hussein and Milosevic.  The book is helpfully split into two sections, the first dealing with the evolution of genocide as a crime, with the second focusing on erosion of the sovereign immunity defense.  The book is part of the Peter Lang Publishing’s Teaching Texts in Law and Politics series, and for this purpose it executes its task fairly well.  It provides readers with a clear grasp of genocide’s history as a crime, the problems regarding its definition, various historical incidents of what might be termed genocide, the erosion of sovereignty and diminution of personal sovereign immunity.  The book concludes with a fair overview of both Milosevic’s and Hussein’s trials.  While it might be too early to provide an assessment of the significance of these attempted trials, this is not what Kelly seeks to achieve.  Instead he focuses primarily on the erosion of the special position enjoyed by such heads of state until relatively recent times.  The Foreword by Desmond Tutu reinforces Kelly’s basic premise that, after the 1948 Genocide Convention, much was lacking in enforcement, but recent developments, such as the trials mentioned and the establishment of the International Criminal Court, could diminish any sense of impunity and carry some deterrent power.  To this end, he notes the Pinochet case induced nervousness on the part of Laurent Kabila about travelling to Europe (p.81).  However, it might be that Kabila’s concerns lay less with the nature of the accusations against him than being put on trial.  Kabila pursued diplomatic assurances, and this may remain something of an obstacle to such prosecutions (despite the 1948 Convention’s obligations).  Indeed, Kelly notes that his perspective is tempered by the realpolitik of what is possible. This is particularly clear in his comments on the potential foils to the ICC’s effective operation, notably the US-driven Security Council Resolution 1422 and his estimation of the finding of immunity by the US courts in relation to President Jiang Zemin (p.84). 

Kelly acknowledges the difficulties in dealing with genocide, noting that the West has acted to punish genocide three times (Nuremberg, Bosnia and Rwanda) and to stop it twice (Bosnia and Kosovo) [*234] describing such action as inconsistent, random and unpredictable (p.4).  To this end, he notes that the legal wrangling over the situation in Sudan, which former U.S. Secretary of State Colin Powell characterized as genocide but which the Report of the International Commission of Inquiry on Darfur to the UN Secretary-General in January 2005 termed “crimes against humanity,” continues.  Indeed one might ask why the crime of genocide seems such a tantalising holy grail for lawyers compared to the more easily prosecutable offence of crimes against humanity, which speaks for itself as a moral wrong.  In fact, this seemed to be the attitude of the appeal bench in the Yugoslavian tribunal case of JELISIC (2001)).  Consequently, one might wonder whether the 1948 Convention, standing as a monument to the Holocaust and the killing of six million, seems to support the speciality of that event to the exclusion of other atrocities.  No doubt this was not the intention of the drafters (and the expansive concepts of “contextual significance” and “ethnic cleansing,” which Kelly handles well, have assisted), but the spectre of the Holocaust does seem to haunt the attempts to prosecute genocide which have followed.  Indeed Kelly acknowledges that the camp footage evidence adduced in the Milosevic trial in relation to Bosnia was “[r]eminiscent of the prosecution’s use of sickening Nazi concentration camp footage during the Nuremberg trials” (p.101).  This of course seems to reinforce the notion that Nuremberg was the trial of the Holocaust when it was clearly concerned with the crime of aggressive war.  Nevertheless, it shows the overall power of the Holocaust paradigm in genocide prosecutions.  Indeed in the context of Saddam Hussein’s trial, the language of concentration camps and forced deportation of the Kurds is present – Al-Majid the aptly named “Chemical Ali” is likened to Josef Mengele (p.127).

One particularly welcome chapter in Kelly’s book deals with the historical context of genocidal massacres, including those recorded in the Bible as being divinely ordained as well as the more harrowing destruction of Carthage.  No doubt, if the Romans of the time were called to account at the bar today, they would deny perpetrating genocide under a 1948 model.  As Kelly notes, they would claim that it was an example of a pre-emptive strike against an economically resurgent Mediterranean city with potential to be a military enemy (p.10).  In so doing, their tactics would illustrate that a perverted sense of self-preservation in the face of a speculative threat, emanating from suspicion, fuelled by paranoia or avariciousness, can drive catastrophic action.  Plus ça change.  Of course Kelly refers to both Stalin’s comment that the death of a million is a “statistic” and Hitler’s query as to amnesia regarding the Armenian massacre (p.19).  The atrocities perpetrated upon the Armenians is dealt with and has been revisited as recently as the EU accession talks in 2005 with Turkey’s steadfast refusal to acknowledge any involvement in this massacre.  It is notable that the US Ambassador to Constantinople, Henry Morgenthau, described the Armenian massacre as “beastly and diabolical” and would himself become involved in the difficult question of [*235] appropriate plans for post-war Germany in 1945.  Such memories could have done little to dilute Morgenthau’s (ultimately unsuccessful) plans for routing Germany as an industrial power through his “Pastoralisation” programme.  Kelly also focuses on the destruction of the Kulaks in the Ukraine and the resettlement of ethnic Russians into vacated areas.  Again such history resonates with the reader following the progress of the “Orange Revolution” and the very clear electoral split in the Ukraine – ethnic Ukrainians favouring the victor, Mr. Viktor Yuschenko, and ethnic Russians favouring the opposition candidate.

Of course, much of Kelly’s book focuses on the legacy of the Holocaust, and he passes through this material in helpful overview, noting that for the Nazis genocide was “documented by the state bureaucratic machinery as if it were just another normal function of government” (p.21), thus pointing the reader in the direction of another recent work in the genocide canon, namely ARCHITECTS OF ANNIHILATION by Götz Aly and Susanne Heim.  The difficulties at Nuremberg in prosecuting crimes against humanity (the charge within which genocide was then subsumed) on their own without a link with other offences such as planning an illegal war, now seem to have been removed by the International Criminal Court statute.  It should be noted that Kelly’s explanation of the complex nature of the ICC’s jurisdiction is very well handled.  Some have regretted that this statute did not grasp the opportunity of also including political groups as potential victims of genocide, something specifically dropped in 1948 in order to gain Soviet support for the Convention.  Of course, even with this concession the Convention was not enforced by an international criminal tribunal until the 1996 prosecution of Akayesu by the Rwandan tribunal.  Genocide’s requirement of a “special intent” to commit the crime is a major stumbling block, and as Kelly notes, a successful prosecution of Hussein for genocide in relation to his treatment of the Kurds will depend on the prosecution’s capacity to marshal its documentary and testimonial evidence, particularly in the face of likely defence tactics seeking to argue multiple intents (p.144).

Kelly skillfully controls a huge amount of material in his chapter addressing genocide and inaction between 1950 and 1990 and the implications of Cold War political chess.  Pakistan’s treatment of Bangladesh in 1971, Tutsi repression of Hutus in 1972 Rwanda, East Timor’s repression by Indonesia in 1975, and Cambodia from 1975-1979, are all covered with depressing comment.  Of course, no doubt some writers will not agree with Kelly’s succinct characterisation of these conflicts, but his footnotes will provide assistance to students wishing to pursue their reading.  On reading this chapter, again the reader is struck by the parallels between apparent political indifference to mass atrocity unless it served Cold War political expediency and the ad hoc application of its modern version of regime change and humanitarian intervention.

Kelly deftly handles the situations which arose in Rwanda and the former [*236] Yugoslavia, and despite the recent nature of these genocides, the short details that Kelly offers still serve to shock.  In relation to Rwanda and referencing Philip Gourevitch’s (1998) excellent book in this area, he reminds us

In the spring and early summer of 1994 a program of massacres decimated the Republic of Rwanda, killing every tenth person in the population. . . . at least 800,000 people were killed in just a hundred days. . . . Rwandans were killed at nearly three times the rate as Jews were killed during the Holocaust.  It was the most efficient mass killing since the atomic bombings of Hiroshima and Nagasaki. (p.41)

Furthermore, the casualness of decision-makers who were instrumental in atrocities is often astounding, and Kelly’s description of evidence in the Milosevic trial attesting to his conducting a meeting in a casino (p.107) does little to diminish a sense of Mafia-like detachment in perpetrating annihilation.  Kelly also notes that among the reasons for international hesitancy to intervene in Rwanda was US trauma following the Somalian debacle.  For the Americans and others, the absence of “clear entrance and exit strategies or definable goals that were short term and assurances of local support” (p.42) no doubt did for Rwanda and its people.  It is a strange irony that, when such caution was abandoned in recent times, it seems to have had equally catastrophic consequences for civilians. 

Kelly handles the material on Milosevic’s trial well, and the laborious process of “wading through hundreds of pages of trial transcripts” (p.xix) clearly shows.  He describes the prosecution as having literally “flooded the court with documentation” (p.115).  Clearly Kelly’s fatigue was felt by the diminishing number journalists covering the trial which might beg the question as to the purpose of such trials.  Indeed Kelly’s description of the high-profile witnesses at points implies to the reader a desperate attempt to obscure or alleviate evidential difficulty or tedium with high-profile media-friendly figures.  Obviously calling to account the personal guilt of a perpetrator such as Milosevic is the main motivation, but if national healing is also a consideration, it might be asked whether trials need to be supported by some other mechanism such as a truth and reconciliation commission.  No doubt the press benches would have been packed for the verdict, but what story would that have told?  Kelly does not deal to any extent with such mechanisms (except as an option which was ruled out by the US on the basis that they seem to be equated with amnesties) and their capacity to aid a sense of achieving justice or finality, and it is something which might have been further discussed, however briefly, for completeness.  Kelly notes that a truth commission was never high on the list of either American or Iraqi agendas on the basis that both cultures are retributive in focus (p.136, although he notes that Iraq is an “artificial creation” (p.120) which might lead to a query as to ‘Iraqi culture’), but it is not clear that such a focus should be indulged or fuelled.  He observes that in both societies something other than a trial would have been viewed as “letting Saddam off the hook” (p.136), but no empirical evidence is adduced in support [*237] of this.  Indeed, given that the intelligent or determined accused will speak over the prosecutor and the court, to directly address the public, as individuals from Goering to Milosevic have all done, surely a forum less constrained by evidence and less focused on the guilt of one man, as trials are, might be considered?  These justice mechanisms are mutually supportive, not exclusive and it may well be that ironically Milosevic’s death will act as a prompt for more nuanced attempts to achieve justice and reconciliation in the former Yugoslavia.  Of course, this is not to say that Kelly takes the view that an Iraqi TRC would be a bad option – just that it was not culturally viable.  Nevertheless, a more critical perspective on this would have been welcome.

In conclusion, Kelly’s book fits nicely with Ratner and Abrams’ book ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW : BEYOND THE NUREMBERG LEGACY which is a good resource for much of the detailed law on this area and William Schabas’ GENOCIDE IN INTERNATIONAL LAW.  The latter is a veritable bible in the area but can often prove a little daunting to students who may feel better equipped to tackle its detail having considered Kelly’s more manageable tome.  Kelly’s book is very readable and, despite its subject-matter, enjoyably so.  It is a welcome addition to the genocide canon.

REFERENCES:

Aly, Götz, and Susanne Heim (translated by A. G. Blunden). 2003. ARCHITECTS OF ANNIHILATION: AUSCHWITZ AND THE LOGIC OF DESTRUCTION. Princeton: Princeton University Press.

Gourevitch, Philip.  1998.  WE WISH TO INFORM YOU THAT TOMORROW WE WILL BE KILLED WITH OUR FAMILIES: STORIES FROM RWANDA. New York: Farrar, Straus and Giroux.

Ratner, Stephen R., and Jason S. Abrams. 2001. ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW : BEYOND THE NUREMBERG LEGACY (2^nd).  New York: Oxford University Press.

Schabas, William. 2000. GENOCIDE IN INTERNATIONAL LAW:  THE CRIME OF CRIMES. Cambridge: Cambridge University Press.

CASE REFERENCES:

JELISIC (Case No. IT-95-10-A P 48 (Int'l Crim. Trib. Yugoslavia, Appeals Chamber, July 5, 2001))

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© Copyright 2006 by the author, Thérèse O’Donnell.