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Jewish World ReviewAugust 9, 2001 / 20 Menachem-Av, 5761

George Will

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Justice 'under the law' at the Hague -- JUSTICE may have been done last week to Gen. Radislav Krstic at the Hague. There the International Criminal Tribunal for the Former Yugoslavia (ICTFY) convicted the 53-year-old Bosnian Serb commander of "genocide" and sentenced him to 46 years in prison for his role in Europe's worst atrocity since the Second World War.

That was the five-day July 1995 massacre, using guns and hand grenades, of more than 7,000 Bosnian Muslims -- men and boys considered of fighting age -- who had sought refuge in the town of Srebrenica. The United Nations, with criminal incompetence, declared the town a "safe haven" but refused to authorize its forces to defend it against the Serbs.

Justice may have been done, in the sense that Krstic is getting punishment he deserves. However, is this justice "under law"?

The presiding judge said Krstic was convicted because he "agreed to evil." Krstic certainly did. However, he was convicted of something more specific -- genocide. That is defined in international law as acts intended to "destroy in whole or in part a national, ethnic, racial or religious group."

Krstic's lawyers argued that the massacre was not genocide because women, children and the elderly were exempted.

Their point may seem contemptibly technical, but technicalities matter in law. So while considering what happened at the Hague, consider what happened at Kenyon College in Gambier, Ohio, in October 1946. There, just 17 months after V-E Day, Ohio Sen. Robert Taft, a leading presidential aspirant, spoke against the Nuremberg Tribunal that had sentenced to death 12 leading Nazis.

After Taft's father, former President William Howard Taft, became chief justice he presided over construction of the Supreme Court building, on which he caused to have carved the words "Equal Justice Under Law." At Kenyon College Robert Taft said the Nuremberg trials were lawless.

Taft was no crank. After his death in 1953 he was voted by the Senate as one of five members of that body's Hall of Fame (the others were John C. Calhoun, Daniel Webster, Henry Clay and Robert La Follette). John Kennedy included Taft among his "Profiles in Courage" because Taft dared to dissent from the overwhelming public approval of the Nuremberg trials.

Taft said he would almost rather the Nazis had been executed by court-martial, or imprisoned, as Napoleon was, as a matter of policy to prevent them from making postwar trouble. Either policy would have been preferable to using "the forms of justice to carry out a predetermined policy."

The trials were, he said, lawless because they "violate that fundamental principle of American law that a man cannot be tried under an ex post facto statute. ... About this whole judgment there is the spirit of vengeance, and vengeance is seldom justice."

About vengeance, Taft erred. Of course one purpose of the trials was vengeance. More precisely, it was to civilize vengeance.

Hermann Goering was not going to grow old sipping coffee in Berlin cafes. Leading Nazis were going to be killed. It would have been done by vengeful vigilantes if it had not been done with Nuremberg's patina of judicial sanction, albeit a sanction stained by the participation of representatives of the Soviet regime that had been Hitler's ally when he launched the war.

There is more to criminal justice than vengeance, but Taft seemed to deny that vengeance is an inextricable component of criminal punishment.

In fact, punishment, properly understood, must be in part retribution, and retribution is logically inseparable from the idea of vengeance. A criminal justice system is supposed to make the expression of vengeance an orderly and dignified result of laws that give due notice of what behavior is criminal.

However, Taft raised a serious question about an improvised tribunal floating free of the governance of a particular nation and its legal system. And there are today serious questions about ad hoc uses of judicial forums created in response to particular events, forms such as the ICTFY and the tribunal concerning genocide in Rwanda.

Both were created by the U.N. Security Council, although the U.N. Charter mentions no authority to create such entities. The Rwandan tribunal is considering crimes committed within one country and against that country's citizens.

These tribunals are supposed to enforce the "international community's" norms of justice, which are said to be evolving rapidly. But who constitutes that community (Sudan? North Korea?)? Who decides what the norms are at any moment? And if they are in evolutionary flux, can they be the basis of law?

A successor to Robert Taft should raise such questions.

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