L AW AGAINST

L AW AGAINST

GENOCIDE
Cosmopolitan Trials

David Hirsh

London Sydney Portland, Oregon
First published in Great Britain 2003 by

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Hirsh, D 2004
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British Library Cataloguing in Publication Data
Hirsh, David
Law against genocide: cosmopolitan trials
1 Genocide
I Title
341.7'78
Library of Congress Cataloguing in Publication Data
Data available
ISBN 1-90438-504-4
1 3 5 7 9 10 8 6 4 2
Printed and bound in Great Britain
This book is dedicated to my children

Dora Poulot Hirsh
and
Edouard Hans Solomon Hirsh
Acknowledgments
Thank you to the people at the Sociological Review. They gave me their
fellowship of 200102 at Keele University, which supported me financially
while I wrote this book. The only thing they asked in return was that I use the
time to develop myself as a writer and to produce this work. Amazing that
such a thing still exists: academic funding for its own sake.
Thank you to Robert Fine, to whom I owe a considerable debt, both personal
and academic, for the help, inspiration, advice and support that he has given
me over many years. He ought to be more generally recognised as one of the
most profound contemporary social theorists. Everything good in this book
has something to do with Robert. Chapter Two was written jointly with him.
Thank you to Beverley Brown at GlassHouse. How much nicer to be found
by a publisher than to find a publisher. Her help and advice were much
appreciated, and made this a better book; also to Sanjeevi Perera, for her
detailed editing.
Thank you to Alison Diduck for reading an early draft and giving me the
confidence to finish it.
Thank you to Stephan Feuchtwang who, as well as teaching me at City
University, has subsequently been interested in my work and ideas, and has
taken time to discuss and clarify them with me.
Thank you to David Seymour for his encouragement, help and friendship;
Max Seymour too.
Thank you to Margaret Archer, Jim Beckford and Peter Wagner who taught
me at Warwick University, and to John Cowley who taught me at City
University. Thanks are also due to Gillian Rose who taught me at Warwick
while she was dying of cancer.
Thank you to Adam Keller and Beate Zilversmidt, who star in Chapter
One, for inspiration. It is not easy to fight for a cosmopolitan politics in Tel
Aviv. They produce The Other Israel, available from POB 2542, Holon 58125,
Israel ([email protected]).
Thank you to my mum and dad, Mirjam and Julian, and to my sisters,
Deborah and Judy, for their support and for making me who I am.
Thank you to Fella, Fischel, Rushka and Yidl, members of my family who
survived the Holocaust and told their stories.
Thank you, above all, to Alexandra, my wife, for her warmth, energy and
love. She has worked very hard so that I could write this book.
David Hirsh
March 2003
Contents
Acknowledgments
Abbreviations
Abbreviated cases
Introduction
v
ix
x
xi
CHAPTER ONE
COSMOPOLITAN LAW
A cosmopolitan law to limit the rights of states

National sovereignty
The re-emergence of cosmopolitanism
Cosmopolitan law: an emergent property of international law
Cosmopolitan law as a project not a future
CHAPTER TWO
INDIVIDUAL RESPONSIBILITY AND
COSMOPOLITAN LAW
Modernity and the Holocaust: Baumans critique of rational choice
Rationality and the Holocaust reconsidered
Police Battalion 101 and individual responsibility
Adolf Eichmann and individual responsibility
Conclusion on individual responsibility
CHAPTER THREE
CRIMES AGAINST HUMANITY:
THE ACTUALISATION OF A UNIVERSAL
The International Military Tribunal at Nuremberg
Crimes against humanity
The Genocide Convention and the problems of defining genocide
CHAPTER FOUR
PEACE, SECURITY AND JUSTICE
IN THE FORMER YUGOSLAVIA
Peace before justice: Srebrenica and Dayton
Justice before peace: Kosovo
Omarska: an intimate concentration camp
The UN response: the ICTY
1
7
13
17
20
23
24
27
31
33
35
38
39
43
49
57
57
64
66
70
CHAPTER FIVE
THE TRIALS OF BLASKIC AND TADIC AT THE ICTY
The trial of General Tihomir Blaskic
The trial of Dusko Tadic
CHAPTER SIX
THE SAWONIUK TRIAL:
A COSMOPOLITAN TRIAL UNDER NATIONAL LAW
79
79
84
94
The ordinary and extraordinary Andrei Sawoniuk

Ben-Zion Blustein: Holocaust memoir and legal testimony
The evidence of the local witnesses
96
103
112
Sawoniuk under cross-examination
123
CHAPTER SEVEN
IRVING v LIPSTADT AND THE LEGAL CONSTRUCTION
OF AUTHORITATIVE COSMOPOLITAN NARRATIVE
Irving v Lipstadt
The legal construction of cosmopolitan social memory
CHAPTER EIGHT
CONCLUSION
Bibliography
Index
130
131
138
151
161
169
Abbreviations
BNP
British National Party
FLN
Front de Libration Nationale (National Liberation Front)
HV
Army of the Republic of Croatia
HVO
Army of the Bosnian Croats
ICJ
International Court of Justice
ICC
International Criminal Court
ICTR
The International Criminal Tribunal for the Prosecution of

Persons Responsible for Genocide and Other Serious Violations
of International Humanitarian Law Committed in the Territory
of Rwanda and Rwandan Citizens Responsible for Genocide
and Other Such Violations Committed in the Territory of
Neighbouring States, between 1 January 1994 and 31 December
1999
ICTY
The Ad Hoc International Criminal Tribunal for the Prosecution

of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the former
Yugoslavia since 1991
IMTFE
International Military Tribunal for the Far East
JNA
Yugoslav National Army
KGB
Committee for State Security ((post-war) name of NKVD)
KLA
Kosovo Liberation Army
NA
National Alliance
NATO
North Atlantic Treaty Organisation
NKVD
Peoples Commissariat for Internal Affairs
RSHA
Head Office for Reich Security
SA
Sturm Abteilung (stormtroopers founded in 1922; an elite

formation of the Nazi party later to be eclipsed by the SS)
SDA
Muslim Party of Democratic Action
SDS
Political party of the Bosnian Serbs
SS
Schutzstaffel (protection squad; Hitlers bodyguards, Nazi party

police and later the most racially pure elite guard of the
Third Reich)
TO
Bosnian Territorial Defence
UN
United Nations
UNHCR
United Nations High Commission for Refugees
UNPROFOR United Nations Protection Force

WVHA
Head Office for Administration and Economy
Abbreviated cases
Demjanjuk case
Ivan (John) Demjanjuk v State of Israel,

Criminal Appeal 347/88 (special
issue) at 395396, summarised in
English in (1994) 24 Israel Yearbook
of Human Rights 323
Eichmann case
Attorney General of the Government of

Israel v Eichmann (1961) 36 ILR 5
Irving v Lipstadt/Irving case
Irving v Penguin Books Limited,

Deborah E Lipstadt [2000] EWCH
QB 115
Prosecutor v Blaskic/Blaskic case
Prosecutor v Blaskic, Case No IT-95

14-PT, ICTY, Judgment, 3 March
2000, www.un.org/icty/blaskic/
trialc1/judgement/index.htm
Prosecutor v Kordic and Cerkez
Prosecutor v Kordic and Cerkez, Case

No IT-9514/2, ICTY, Judgment, 26
February 2001, www.un.org/icty/
kordic/trialc/judgement/
index.htm
Prosecutor v Kristic
Prosecutor v Kristic, Case No IT-98

33, ICTY, Judgment, 2 August 2001,
www.un.org/icty/krstic/TrialC1/
judgement/index.htm
Prosecutor v Kunarac, Kovac and Vukovic Prosecutor v Kunarac, Kovac and

Vukovic, Case No IT-9623, ICTY,
Judgment, 22 February 2001,
www.un.org/icty/foca/trialc2/
judgement/index.htm
Prosecutor v Tadic/Tadic case
Prosecutor v Dusko Tadic, Case No IT941, ICTY, Appeals Chamber, 2

October 1995, www.un.org/icty/
tadic/appeal/decision-e/
51002.htm Prosecutor v Dusko Tadic,
Case No IT-941, ICTY, Judgment, 7
May 1997, www.un.org/icty/tadic/
trialc2/judgement/index.htm
Sawoniuk case
R v Sawoniuk (2000) Cr App R 220
Zundel case
Zundel case [1992] 2 SCR 731
Introduction
On 28 January 2000, I was at the Royal Courts of Justice in the Strand, in
London. Outside the building was a large, angry, noisy demonstration
consisting mainly of Chileans, displaying hundreds of photographs of
individuals who had been murdered by the Pinochet regime. Augusto Pinochet
was attending an appeal by the Kingdom of Belgium against the British Home
Secretarys decision that, due to his poor health, the General was unfit to
stand trial for crimes against humanity. Upstairs in the same building, judges
were hearing the unsuccessful appeal of Andrei Sawoniuk against his
conviction for the murder of Jews in Belorus during the Holocaust. And in
Court 73 there was a gathering of Jews, historians, Nazis and journalists
watching the Irving v Lipstadt libel trial. In the Pinochet case the court confirmed
the principle of universal jurisdiction for crimes against humanity and torture.
In the Sawoniuk case the court upheld the conviction of a man for crimes
committed as part of a genocide in another country. In the Irving case the
court produced a long, closely argued judgment that placed the propaganda
of David Irving outside what may be properly referred to as historiography.
On that sunny winters day in London, it felt as though something interesting
was happening.
On the same day, there were crimes against humanity trials being routinely
heard by international courts in The Hague, in relation to ethnic cleansing in
the former Yugoslavia, and in Arusha, in relation to the genocide in Rwanda.
In recent years there have been trials, and campaigns for trials, in many
countries that were occupied by the Nazis; also in Cambodia in relation to the
genocide there; in South East Asia in relation to the organised mass rape of
the so called comfort women by Japanese soldiers during the Second World
War;1 and in East Timor in relation to the mass killings carried out by the
Indonesian regime. In the summer of 1998, 120 states agreed in Rome to set
up an International Criminal Court, extending the ad hoc tribunals for the
former Yugoslavia and Rwanda into a permanent institution. Slobodan
Milosevic, the man who many held would never face justice at The Hague, is
on trial.
There is much darkness in the world; genocide, racist ethnic cleansing,
torture, industrialised humiliation and the mass production of terror are
commonplace. Those who perpetrate such crueltiesthe ideological, the
greedy, the enraged victims of some previous injustice, the stupidly loyal, the
sadistsmove stealthily in their self-created dusk. On reflection, perhaps the
bright winter sunshine in London did not really work as a metaphor for the
business that was going on in the court. The image of enduring brilliant light
When the Japanese Prime Minister offered a letter of apology and monetary reparations to some 500
survivors of the 200,000 comfort women, only six of them accepted the offer. Some of the womenfrom
Korea, Taiwan, China, the Philippines, and Indonesiafound more gratification when the US Justice
Department placed the names of 16 Japanese individuals involved in enslaving the women for sex on a
watch list of suspected war criminals barred from entering the United States. Some argued that only
prosecutions by the Japanese Government would adequately express governmental contrition and redress
the abuse. Others supported treatment of the comfort women in school textbooks as a kind of reparation
through memory. Minow, 1998, p 105.
xii
Law against genocide
penetrating all the shadows of totalitarianism was surely illusory. But there
have been flashes and sparks that have momentarily lit up the landscape.
This book focuses on those. It seeks to sketch some of the scenes that are
briefly illuminated by cosmopolitan criminal law, and to assess the significance
and trajectory of the fragments of cosmopolitan criminal law that find a fleeting
and tentative existence. Sparks and flashes are unreliable, unpredictable and
dangerous, but they create bright light nevertheless. The existence of these
fragments of light is the starting point of this work.
The term cosmopolitanderiving from the Greek cosmos (world)was first
used in this context by Immanuel Kant,2 who picked up a thread of classical
Greek thought3 when he set out his theory of cosmopolitan right in 1795. He
argued that the relationships between democratic republics must be regulated
by a framework which provides for the peaceful settlement of disputes between
states. But he went further, arguing that cosmopolitan law must set minimum
standards for the treatment of individuals, both citizens and foreigners.
Contemporary social theory is rediscovering and radicalising the concept
of cosmopolitanism and recognising cosmopolitan law as one of its key
actualisations. James Bohman and Matthius Lutz-Bachmann4 argue that Kants
framework for a universal community of all peoples is given new urgency by
the current development of globalisation. Steven Vertovec and Robin Cohen5
chart the possibilities of peaceful human co-existence using the framework of
a cosmopolitanism which focuses on human commonality. Ulrich Beck6 sees
the development of a cosmopolitan politics as a necessary response to
globalisation. For David Held,7 a democratic response to globalisation requires
a cosmopolitan law that can regulate the unbounded growth of capital and
other power structures. For Mary Kaldor,8 a cosmopolitan approach is
necessary because the nature of war is changing profoundly. Outdated
categories of sovereignty, national interest and international law do not provide
an adequate framework either to make sense of current conflicts or to challenge
their worst excesses. Robert Fine says that:
cosmopolitan social theory may be viewed as a multi-disciplinary attempt to
reconstruct the core concepts of the human sciencessociety, political community,
democracy, culture, sovereignty, etcin such a way as no longer to presuppose the
givenness or Generality of the nation state in their designation.9
For Jrgen Habermas too the concept of cosmopolitanism and the

development of cosmopolitan law are key to contemporary responses to
totalitarianism and globalisation.10
Cosmopolitan criminal law is a new form of law which is evolving out of
international humanitarian and human rights law that regulates not only the
conduct of states, but also the conduct of non-state organisations and
2
3
4
5
6
7
8
9
10
Kant, 1991.
Nussbaum, 1997.
Bohman and Lutz-Bachmann, 1997.
Vertovec and Cohen, 2002.
Beck, 1999.
Held, 1995, 2002.
Kaldor, 1999.
Fine, 2002a.
Habermas, 2001.
Introduction
individuals. It is new because its authority does not originate in state

sovereignty but in a set of supra-national principles, practices and institutions.
It is concerned with a specific set of crimes that are so huge that they transcend
national boundaries both spatially and conceptually: genocide, ethnic
cleansing and crimes against humanity.
Following the end of the Second World War, the four victorious powers
organised trials at Nuremberg under the authority of international law to
hold the Nazi leadership to account for their crimes. Within a year the energy
and idealism of the process was spent. The Cold War that followed it lasted
for half a century; half a century in which talk of cosmopolitan criminal law
seemed to be little more than Utopian dreaming. After 1989 there was
widespread reemergence of such talk, culminating in the creation of new
institutions of enforcement, two ad hoc tribunals for Yugoslavia and Rwanda
and the treaty for the International Criminal Court (ICC). These events can be
understood in two contrasting ways. Nuremberg, it could be argued, was the
start of the process of the actualisation of cosmopolitan criminal law, and the
50-year Cold War was simply a brief intermission before the process resumed;
it has been gaining momentum ever since. Alternatively, Nuremberg could
be seen as a fundamentally flawed display of victors justice, the Cold War as
the usual business of international relations between murderous and ruthless
powers, and the re-emergence since 1989 as no more than a short-lived fantasy
before lawless power again eclipses any hope of global authority. The American
response to the attacks on New York and Washington in September 2001,
similarly, can be understood either as an aberration from the path of progress
or as a return to reality.
Neither of these approaches is adequate; or, at least, we have no way of
knowing which will turn out to appear the more correct. We do not know
whether the 12 years that have followed the Cold War will be followed by a
long period of darkness or by a period in which the sparks and flashes of law
become more enduring, regular and predictable, transforming into something
that can sustainedly illuminate the dark shadows of mass murder and terror.
In this book, I try to restrict myself to looking at the flashes, and to theorising
their potentialities. I am not committed to a framework that understands
cosmopolitan criminal law as part of an inevitable civilising process, nor to
one that understands it as simply a cover for the great powers to carry on
their usual business of domination. I start with the social phenomena of crimes
against humanity themselves and with the institutions of law that designate
them as such.
The existence of some isolated successes for cosmopolitan criminal law is
problematic for those who hold the view that such law is nothing other than
a legal fiction or a form of imperialist domination. If there are gaps and spaces
that law can fill and enlarge, if law is able to attain some independence from
the powerful, then an understanding of law that sees it simply as a subterfuge
that lends legitimacy to illegitimate power is unsustainable. If I can show in
this book that it is possible for cosmopolitan criminal law to operate effectively
at least in some instances, then opposition to law will have to focus more
sharply. Criticism will have to relate to the actual functioning of the legal
system. The argument that cosmopolitan criminal law is Utopian in its concept,
and that it therefore must be wholly compromised in its actuality, will no
longer be credible.
xiii
xiv
By May 1994, at least 200,000 people, nearly all Tutsi, had been killed in
Rwanda, but the US Government instructed its officials to refuse to call this a
genocide.11 This was because, even though a legal duty to act in defence of
those being killed does not flow directly from such a characterisation, a refusal
to use the term makes it easier not to act. The moral power of the term genocide,
which stems partly from its legal existence, is considerable. Why, if the basis of
international relations is power, does the US Government find itself playing
these word games in order to help it to deny the undeniable? Clearly, there are
factors at work other than naked power. This is a small example of how the
powerful find themselves having to take notice of moral and legal duties. It is a
small crack in the monolith of power; but cracks signify possibilities.
There is a large and comprehensive body of international humanitarian
law. There are treaties, conventions, charters; there is customary international
law and precedent. One key question that I am trying to answer in this book
is to what extent that body of law has attained a genuine existence outside
UN libraries and international law journals. It is clear enough that it does not
exist as a settled system of criminal law that routinely tracks down and puts
on trial those responsible for crimes against humanity, independently of where
they commit their crimes or at whose behest. It is also clear enough that
international criminal law is bogged down by power politics and the veto of
the permanent members of the UN Security Council. International
humanitarian law does not exist as a finished set of institutions and principles.
But to what extent does it exist in an embryonic and incomplete form? This is
the key question that I aim to answer in this work. If cosmopolitan criminal
trials are being carried out, if they are based on due process and human rights,
if they bring some justice to at least some perpetrators and some victims, then
what is the significance of the development of these possibilities?
A number of important legal precedents have established the fact that the
greatest violations of international humanitarian lawgenocide, ethnic
cleansing and tortureare subject to universal jurisdiction. Nuremberg, Tokyo,
the ad hoc tribunals, the Pinochet judgment: all have clearly established that
such crimes may be tried by international courts or by the national courts of
any state. A state may no longer argue that the principle of national sovereignty
disbars foreign courts from trying its nationals for such crimes or trying those
suspected of committing such crimes within its territory. The right of national
sovereignty is not absolute, but is related to other rights. Crimes against
humanity are the concern of humanity as a whole, irrespective of where and
under what jurisdiction they were committed. The principle of individual
legal responsibility for such crimes, no matter whether they were carried out
at the behest of states, by the leaders of states, or with the blessing of the legal
system of states, is also clearly established.
I do not attempt to privilege the development of cosmopolitan criminal
law as the most important antidote to totalitarianism, but as one weapon that
is levelled against it alongside others. Law does not put an end to the actions
that are designated as criminal. Laws against genocide, on their own, cannot
stop genocide any more than laws against burglary have stopped burglary.
Law is just one weapon. It is a complement to, not a substitute for, political
action, education and organisation against those social formations that seek
11 Cohen, 2001, p 162.
Introduction
to commit genocide or ethnic cleansing. There is no necessary contradiction

between local people-based action and global institution-based action against
totalitarianism; they can enhance each other. My aim is to discuss a number
of theoretical and practical issues that relate to cosmopolitan criminal law
and to trace possible trajectories for its development.
In the first chapter, I begin by making a distinction between international
law and cosmopolitan law. International law is the system of regulation that
governs the relationships between states, while cosmopolitan law is a
development of this into a new entity. Cosmopolitan law is the emerging body
of law that aims to protect the human rights of individuals and groups,
primarily from serious threats that may be posed to them by their own states,
by invading states, or by other state-like social formations. A fundamental
contradiction examined in this chapter is between the conflicting principles
of absolute state sovereignty and human rights. This contradiction has usually
been resolved in favour of state sovereignty, but the emergence of cosmopolitan
law seeks to tip the balance in favour of human rights.
Cosmopolitan law is one response to the inadequacy of nationalism and
its actualisation in the nation state. Hannah Arendts work tracing the origins
of totalitarianism makes a compelling case to suggest that the nation state is
structurally unreliable in guaranteeing even the most basic human rights to
all those who live within its territory. She argues that it was the totalitarian
movements themselves that first exploited cracks in the guarantees of
nationalism, and that it was they who first broke out of the bounds of national
parochialism. What is required in a response to totalitarianism is a recognition
that the old institutional and ideological structures of the nation state that
were supposed to guarantee rights were prone to failure under stress.
Many contemporary theorists have responded to this problem with theories
of cosmopolitanism. These theories typically contain two strands. They
identify senses in which cosmopolitanism is emerging to replace the model
of international relations which was based on state sovereignty. But as well as
mapping its emergence, they also argue for its value as a paradigm which can
address the central problems of our epoch. Whilst this book is informed by
these theorists of cosmopolitanism, it is more limited in its ambition: it focuses
on cosmopolitan law. The development of this law is understood not as a
historical narrative of progress but as one which is based on human agency. It
is based on the urgent and actual struggle to find methods of fighting against
totalitarianism which do not replicate that which is being fought against. The
development of this law is rooted in the cosmopolitan principle that human
beings are on a fundamental level of equal worth. This is an approach which
understands the necessity of operating in the world as it is rather than the
world as we would like it to be. Some cosmopolitan theorists are too ready to
divine a trajectory of development which automatically changes the world as
it is into the world as it might be. Some critics, on the other hand, are so
horrified by the world as it is that they see anything that exists as being
necessarily wholly compromised by the corruption of the existing world.
Cosmopolitan law is neither an emerging civilising process nor a moralistic
gloss thinly covering imperialist domination;12 it is one strategy for fighting
against regimes and individuals who engage in genocide and ethnic cleansing.
12 See Chomsky, 1999; Chandler, 2002.
xv
xvi
Chapters Two and Three focus on the two constitutive innovations of

cosmopolitan law that were made by the Nuremberg process, which put
leading Nazis on trial following their military defeat. The first was the
establishment of individual responsibility for crimes committed by people
even when they are acting on behalf of, or in leadership of, a state, and even
when their acts appear legal according to existing authority. The other was
the use of the new offence of crimes against humanity, which means that such
crimes are recognised as the business of humanity as a whole, and that they
are therefore subject to universal jurisdiction.13 Both had arguably been present
as principles in international law before, but at Nuremberg an institution of
enforcement was built which gave those principles a worldly actuality.
Chapter Two asks whether the legal insistence on individual responsibility
is justified. Do individuals actually make a decision to commit a crime against
humanity for which it is just to hold them criminally accountable? Zygmunt
Bauman14 provides an important sociological account of how such decisions
are made. In his account, the structures of modernity replace moral choice
with short term instrumental rationality. Perpetrators are bound so tightly
within those structures that it is only possible for a very few special human
beings to step outside the existing social world to act morally. The vast majority
are condemned to play their role as perpetrators and bystanders, and do not
possess the ability to make ethical choices for which they may be held
responsible. If Bauman is right, then the insistence on individual responsibility
is little more than a legal fiction that reproduces the same immoral rationality
that was responsible for the crimes in the first place. We15 argue that the social
universe of modernity is not one that counterposes morality to rationality,
and that the structure is very rarely so all-powerful as to eliminate any role
for agency. We examine Baumans argument by looking at how particular
perpetrators and groups of perpetrators actually came to be killers. We argue
that the evidence supports the thesis that perpetrators make choices about
what they do, and that they could act otherwise. We conclude that the legal
assignation of individual responsibility for perpetrators of crimes against
humanity is justified.
Chapter Three looks at the Nuremberg tribunals more closely, and at the
way that the charge of crimes against humanity developed there. I examine
some of the responses to the formulation and use of the crimes against
humanity charge at Nuremberg. While the Nuremberg process was seriously
flawed in many ways, the aspect that I stress is that it indelibly set the two
central precedents: that of individual criminal responsibility, and that of the
universal jurisdiction over crimes against humanity. If we were to accept that
the tribunal found defendants guilty of crimes that did not exist at the time of
their commission, or that the prosecuting states were guilty of similar crimes
to those they judged, then we could question the justice of the particular
convictions at Nuremberg; but, following Nuremberg, no gnocidaires can claim
that they were unaware that genocide was an international crime; no future
13 The Nuremberg process was the first formal recognition of a universal jurisdiction over certain heinous
crimes. Goldstone, 2000, p 75. Richard Goldstone notes that piracy and brigandage had been recognised
as crimes of universal jurisdiction, but that they were never authoritatively defined.
14 Bauman, 1993.
15 Chapter Two was written jointly by David Hirsh and Robert Fine.
Introduction
gnocidaires will be able to say we were only obeying orders. Following the
tribunals, the innovations at Nuremberg became clearly established precedents
in cosmopolitan law.
Chapter Three goes on to discuss the codification of the crime of genocide
in the Genocide Convention of 1948, and some of the ways in which social
scientists have looked at genocide since then, with the emergence of genocide
studies. The genocide studies scholars attempt to discover ever more accurate
definitions for key terms, ever more intricate traits common to genocides,
ever more numerous statistical correlations. In this way they attempt to
understand the social phenomena that they investigate. But they do not pay
much attention to the ways in which those phenomena are understood by the
structures and norms of society itself, that is to say, by developments in
cosmopolitan law. It is, I argue, more fruitful to focus on the structures that
develop organically within society than to attempt, as some social scientists
do, to impose an abstract understanding based only on their own critique.
In Chapter Four, I explore the ways in which the three goals of peace, justice
and security have been pursued in the former Yugoslavia by the international
community. In the war in Bosnia, security and justice were subordinated to a
vain quest for peace and the avoidance of conflict. The overriding wish to
avoid any disruption of the peace enabled the practice of ethnic cleansing to
be carried out with little hindrance. In Kosovo, the international community
focused on preventing and reversing the ethnic cleansing, yet with such a
blunt use of force that peace, security and justice all suffered. The priority
given by the intervening powers to avoiding putting their own soldiers at
risk had not changed since Bosnia, but the policy that flowed from it took a
very different form. The establishment of the International Criminal Tribunal
for the former Yugoslavia (ICTY) focuses on justice, yet it was established
under the UN Security Councils powers to pursue peace and security. I explore
the process by which the ICTY came to be set up and how it developed from
a token institution, with no prisoners and a tiny budget, into one capable of
putting Milosevic himself on trial.
In Chapter Five, I focus on the trials of a Croatian General, Tihomir Blaskic,
and a small-time Bosnian Serb political activist, Dusko Tadic. It is through
these two case studies that I investigate the actual working of a cosmopolitan
criminal court. The most striking thing about the ICTY is that it exists. There
is a courthouse in The Hague, protected by UN security personnel, displaying
UN flags and symbols, that is carrying out the routine business of putting
people on trial for crimes against humanity and genocide. Political,
philosophical and legal discourse about the possibility of cosmopolitan law
are confronted by this institution which quietly came into being during the
debate. There are a number of factors which make it more difficult and
complicated to organise fair trials here under cosmopolitan law than to
organise domestic criminal trials, while all of the difficulties usually associated
with criminal trials are also still present. These narratives are presented in
order to highlight some of the problems and the ways in which the court
seeks to overcome them. But these descriptions of the business of ethnic
cleansing, and the day-to-day functioning of the court which relates to it, are
also presented in order to concretise the often rather elevated theoretical
discussion of such social processes.
xvii
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As I write, Slobodan Milosevic is in the dock at the ICTY, claiming that

ethnic cleansing against the Bosniaks and the Kosovars was just the beginning
of the war against terror; claiming that the other sidethat is, every other
side, NATO, Croatia, Kosovo, Bosniawas worse than he was; using the time
allocated for his cross-examination of witnesses to make speeches. Judge May
regularly cuts him short, explaining, as to a rather stupid child who will not
listen and who does not understand that he, Milosevic, is not in charge, that it
is not a valid legal defence of himself to make allegations against others; that
the legal process will take precedence; that the court is not impressed with his
clever debating tricks. In such ways, those on trial are stripped of their aura
of satanic greatness.16 Ethnic cleansing itself is deconstructed by the ICTY
into crime; endless particular episodes are presented whose sum adds up to a
huge crime but whose parts are shown to consist in straightforward acts of
routine brutality. A village is terrorised by a tank and a group of soldiers; a
bus-load of men are taken away; five people are shot here, two people are
beaten to death there; a group of women are taken off to a rape camp. In its
detail it is simply a series of brutal crimes. In its everyday functioning, the
ICTY is simply a court. The extraordinariness of the scale of the crime and of
the nature of the court are always present, but so too is their ordinariness.
Chapters Six and Seven centre on two trials concerning the Holocaust that
took place in London in 1999 and 2000. They were at the same time cosmopolitan
and national trials; held under English law, but concerning the Holocaust that
occurred elsewhere. While they had some striking similarities, they were also
very different. One was a criminal trial of a gnocidaire, Andrei Sawoniuk; the
other was a libel trial brought by David Irving, a Holocaust denier, seeking to
suppress anAmerican writers work about Holocaust denial. Both cases addressed
the Holocaust with the hindsight of more than 50 years, one relying on eye witness
accounts of particular incidents of brutality and murder, the other remaining
mainly on the terrain of the interpretation of documentary evidence.
Many of the complexities of the Sawoniuk trial were ones which will arise
typically in cosmopolitan trials. In an ordinary murder investigation, the police
will normally have control of the crime scene, usually very soon after the
crime is committed. This is unlikely to be the case in a cosmopolitan trial
relating to crimes against humanity, genocide or ethnic cleansing. In a
cosmopolitan trial, potential witnesses are likely to be either implicated in the
crime or victims of it. The political or national loyalties of witnesses may be
important. There will often be problems concerned with the translation of
different languages. Local authorities may often be partisan to one side or the
other. In this case, great difficulties were added by the long time interval
between the crime and the trial.
One issue that was central in the Sawoniuk trial was the question of the
admissibility of certain types of evidence. Some strong and arguably
illuminating documentary evidence was prevented from going before the jury.
The court required direct eye witness testimony. The narratives offered by the
witnesses, particularly those presented by the Jewish survivor who gave
evidence, Ben-Zion Blustein, were acted upon and changed by the rules and
requirements of a criminal trial. Witness testimony given in the form of
16 An observation made by Karl Jaspers (Jaspers, 2000) in relation to the Nazis on trial at
Nuremberg.
Introduction
Holocaust memoir was acted upon by the rules and norms of the legal
processes, particularly by the process of cross-examination and the sifting out
of evidence that was deemed inadmissible: the trial process always strove to
transform memoir into evidence. Blustein resisted the court and tried to retain
control over his own testimony. The court had difficulty in bounding the
extraordinary events and stories which were given to it within the normal
rules of criminal evidence. The jury was swayed both by evidence which the
court wished it to hear and also by influences which the court wished to
suppress. The trial was a struggle between witnesses, the defendant, the
lawyers and the judge for control over the information which the jury would
use to come to its verdict.
While cosmopolitan criminal trials are intended to bring criminals to justice
and to deter future crimes, Chapter Seven, which looks at the defamation
case of Irving v Lipstadt, focuses on another important aspect of such trials.
One of the strongest, most pervasive and widespread forms of collective
memory is that which creates and recreates myths of nationhood. Most of the
evidence that is presented to crimes against humanity trials is strongly coloured
by national social memories; the subject matter of such evidence is the most
extreme ethnic and national conflict. I argue that the cosmopolitan legal process
is like a machine whose data is input in a form heavily coloured by national
myth, yet whose output aims to be free from national particularity. The
institutions of cosmopolitan law, as well as the body of law, rules and precedent
on which they are based, are the mechanisms by which such cosmopolitan
judgments may be arrived at. Crimes against humanity trials aim to produce
authoritative narratives of the crimes, narratives given a particular form of
authority by the legal processes and norms by which they are created. I argue
that this is a part of the process of the evolution of a global collective memory
that can play a role in undermining myths of nationhood, particularly those
that have played their part in causing ethnic cleansing and genocide. The
Irving v Lipstadt libel case is discussed as an example of the ways in which
battles over narrative can be hosted by a trial process. Irvings revisionist
narrative clashed with the academic cosmopolitan discourse of Lipstadt. The
court necessarily took on some of the characteristics of a cosmopolitan court
and produced a legally authoritative narrative in the form of its 349-page
judgment.17 In Chapter Seven, I discuss the status and possibilities of such
narratives.
The particular shape of this book, though not the fundamental arguments
that it contains, is a little arbitrary. It is not a comprehensive survey of
developments in cosmopolitan criminal law, nor is it an account of all crimes
against humanity trials. It does not necessarily focus on the most important
cases, nor on the most interesting cases. The empirical heart of this work is
the observation of four trials; the Blaskic and Tadic cases in The Hague and the
Sawoniuk and Irving cases in London. These trials were within my reach,
geographically and temporally.
The trials at The Hague represent a sample of the early work of the Hague
Tribunal. This tribunal is, along with its sister tribunal in Arusha, among the
most interesting and important developments in cosmopolitan criminal legal
history, and I was fortunate to be able to observe some of its operation. Two of
17 Irving v Lipstadt judgment.
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the cases taking place there while I was carrying out my research were the
Tactic and Blaskic cases. The Tadic case was the first ever to undergo a full trial
process by a UN court; and I chose the Blaskic case because of its contrast to
that case. Tadic was a small-time Bosnian Serb political leader; Blaskic was a
General in the Croatian army.
The selection of the Sawoniuk and Irving cases was more opportunistic on
my part. Yet their appearance at the right time for this work was not only a
matter of good fortune, since cosmopolitan law is, at the moment, enjoying a
limited but real renaissance. The Sawoniuk case was the trial of a man who
had become a British citizen after the Second World War, for crimes committed
in Belorus during that war as part of the Nazi genocide of the Jews. The case
exemplified many of the complexities and difficulties associated with
cosmopolitan criminal trials, such as the fact that the jurisdiction in which the
trial was taking place was different from that in which the crimes were
committed. It illustrated very clearly some of the difficulties involved in
assigning different kinds of standards and rules that render evidence
admissible or inadmissible, and it illustrated some of the ways in which
different nationalistic narratives are worked upon by a court to produce a
judgment. The Irving case was a libel trial in which David Irving sued Deborah
Lipstadt for calling him a Holocaust denier and a falsifier of history who had
neo-Nazi links. This case shows a contrasting way in which events that may
be characterised as crimes against humanity can be examined in a court of
law. As well as focusing on the ways in which a trial process can judge between
opposing narratives of such events and produce its own legally authoritative
narrative, this case also sheds light upon the ways in which the acceptance of
certain forms of evidence rather than others can skew the truth that the court
or the historian or the witness produces.
The central aim of the empirical investigation was to observe the actual
working of these trials. Much has been written and spoken about international
law by media commentators and politicians, and the law journals are full of
articles by lawyers about the theory of international law. I wanted to observe
the social phenomena of cosmopolitan trials as they actually happened. I
wanted to look more at how they happened than at how they were supposed,
theoretically, to happen. I wanted to come to a judgment not only about
whether they could be characterised as fair trials, but also about the substance
and character of cosmopolitan trials.
In the case of the ICTY, live sound (delayed by half an hour) from the three
courtrooms is broadcast over the internet; full transcripts are available on the
official website of all public proceedings; and the judgments that the tribunal
produces are of the highest quality: detailed, well written and authoritative.
The huge availability of this material is a methodological problem in itself:
each day, each courtroom produces something like an 80-page transcript. This
is simply an enormous amount of data for a researcher to handle. I still found
that being in the building and in the courtrooms themselves gave me an
incomparably fuller picture of the institutions and their proceedings. To be
able to watch the lawyers, the judges, the witnesses and the defendants, day
after day, and to be able to see the trial unfold, proved to be an absolutely
invaluable part of my work. This work of observation was important in
enriching the mountains of documentary data available.
Introduction
One methodological problem in particular stands out in relation to the use

of trials in the study of the events that they examine. People, of course,
consciously present themselves in a trial in which they are involved in a
particular light. Defendants want to be found not guilty: if that is not possible,
they want sympathy, and they want the least possible condemnation; they
want to tell their story. Every side in a trial presents a one-sided case. An
observer must take care to understand that everything that is said in a trial is
said for a particular reason, and that nothing is straightforward. It is always
necessary to be conscious of the social setting in which the evidence is being
presented.
Criminal courts offer one great advantage to the researcher: they are open
to the public. However, those processes of the criminal justice system that are
conducted in public are not necessarily the most important. What happens in
jury rooms, and in private conversations between defendants, lawyers and
judges, can be more telling than what happens in public. These places are
much harder for the researcher to penetrate. Many decisions, such as whether
there will be a trial at all, or whether the defendant will plead guilty or not
guilty, are made outside court. Also, decisions about the shape that the trial
will take, what is agreed upon, what is at issue between the prosecution and
the defence, and what exactly the jury will be asked to judge, are made,
formally and informally, away from the public courtroom. This process of
pre-trial shaping, the off-the-record decision making, often skews sociological
research of criminal justice systems when it is carried out by observing public
proceedings.18 In the cases that I followed, it was difficult to get access to
sources of information outside the public proceedings. Presence in person at
the Sawoniuk trial, the only jury trial that I attended, enabled me to observe
legal argument that was not held in the presence of the jury and that was not
reported in the press.
My trial observations were all carried out from the public galleries. At the
Old Bailey, where I observed the Sawoniuk trial, the public gallery is organised
in a particularly cold and rule-bound way. There are guards to enforce the
rules about standing up and sitting down at the correct moments of
proceedings; the guards file observers in and out of the public gallery at the
beginning and the end of a session, while between sessions observers have to
wait in a bare corridor. The guards make sure that no one has a secret drink or
sandwich, and that everyone sits up respectably straight. The system here is
designed to cope with friends and family of defendants queuing up outside
the courtrooms next to friends and family of the victims of rapes and murders,
as well as sociological researchers, trainee lawyers, homeless people looking
for somewhere warm to sit, and those who are simply curious. At one
important session of the Sawoniuk trial, I found myself locked out of
proceedings because a group of schoolchildren had taken all the places.
Perhaps a researcher would get a slightly different view of proceedings from
the press gallery; whether it would actually be closer, or would only appear
to be closer, I am not sure. The press gallery is fully contained within the
building, rather than in a balcony only accessible from outside, as the public
gallery is. By contrast, the public gallery in the Royal Courts of Justice for the
18 See Baldwin, 2000, p 246.
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Irving case was less regimented and was much more a part of the courtroom;
it did, on the other hand, contain a small collection of Nazi sympathisers, as
well as Holocaust survivors, well known historians and students. In The
Hague, the public gallery is very close to the court, but is separated from it by
soundproof and bulletproof glass, giving an impression of intimacy mixed
with remoteness. Usually at The Hague, the public gallery was almost empty,
apart from one or two journalists and a few officials from the Bosnian or
Croatian embassies. As well as being clear about who the observer is and
what is being observed, the researcher is also conscious of the place from
where the observations are made.
The strength, for a researcher, of choosing a small number of detailed case
studies is that it is possible to achieve more depth. I could have attempted a
comprehensive survey of all crimes against humanity trials, obtaining
information from law reports, press reports, transcripts and other secondary
and mediated sources. My aim was different. It was to attempt to get a feel for
the cases; to understand the defendants and their crimes; to see exactly how
the volumes, treaties and precedents of international law are given life by
particular cosmopolitan institutions and particular lawyers and judges. I did
not only want to see that trials take place; I also wanted to see how they take
place, how unexpected events are dealt with by the process, and how the
rules of the institutions of law are worked upon by the individual agents at
work in the processdefendants, lawyers, judges, the press, the public. An
immediate relationship between the phenomenon and the researcher requires
attendance in court. The researcher makes sense of their own observations
first, before being subjected to the opinions of others and the shape given to
events by the media.
I did not observe these trials innocently. I did not go to any great lengths to
attempt to create some sort of scientific distance from events, that is, to hide
my particularity as an observer and as a social agent behind a faade of artificial
objectivity. In fact, I observed the trials with all the prejudices that the
experience of my life gives me. Observation is not only created by that which
is being observed; it is also created by the observer. It is necessary to keep in
mind the social context of the observation as well as that of the object. It is
necessary to retain some picture of who is observing, and of the interaction
between the observer and the observed. The difference between the
information that is available when you are an observer in court and that which
is available even from a complete transcript lies in the impressions of people
and events that are filtered through ones own personal experience, and also
impressions of structures, people and events outside the formal proceedings
of the institution. I will give three examples to illustrate what I mean.
There was an incident, which I describe in Chapter Four, when I was at the
ICTY and was approached by the chief security officer and interviewed by him.
I was, at the time, outside the building, sitting on the grass in the sunshine at
lunchtime. He approached me in order to ask me why I had been trying to
engage members of staff in conversation, what I was observing, and why. I was
surprised by the extent and the manner of the security. The incident added, in
a small way, to my impression of the institution as a whole. It bolstered a feeling
I had that the institution took itself seriously but in a civilised sort of way. It was
interesting that he chose an informal interview outside his territory rather
than in his (perhaps rather intimidating) office. It was interesting that he had a
Introduction
Northern Irish accent, which I happened to recognise; other researchers may

have recognised other things that I failed to notice at all.
When I saw, in court, a video of David Irving addressing an American Nazi
meeting, it immediately became clear to me that Irving was sympathetic to
those at the meeting. It was clear to me because he was addressing the meeting
as a comrade, as one of them. I have been to many meetings that have been
addressed by comrades. I recognised it in the case of David Irving because I
had seen it, or something similar, often before. Again, something from my own
particular experience gave me a certain insight that I would not have had from
transcripts or from reports. It was not hard fact that it gave me, it was not
evidence, just an impression. But it was one that felt valuable to me.
When I first saw Ben-Zion Blustein giving evidence against Sawoniuk, I
was struck by his similarity to other Holocaust survivors whom I had seen
and met. In the text, I say that Blustein struck me as a typical Holocaust
survivor. I am aware that this statement is rather unscientific, unsociological,
perhaps even offensive. It was, however, an impression, of the kind that I
have just been describing, which seemed to me to be valuable, and which
was gained only by the methodology of bringing my experience of life to
bear. Clearly, I do not rely on my impressions as incontrovertible facts. I
nevertheless value them for the detail and depth they add to the picture that
I am trying to sketch. In his book about research methodology, Bob Burgess19
describes how one researcher illustrated her unstructured interviews with
wives of clergymen by drawing on her own experience of being married, at
the time, to a clergyman.
The same researcher, similarly, brought to bear her experience of having
taken her own child to pre-school playgroups when she interviewed young
mothers attending playgroups. Experience, empathy and recognition must
be considered important skills for researchers. A methodology that disqualifies
such sources of enrichment will produce rather bland research.
I do not write shorthand. When I take notes of trials, I simply do my best to
write down as much as I can. Sometimes my notes of what is said are a little
confused. Sometimes it is confused in court; sometimes the translation is a
little confusing; usually my notes are confusing because I did not write down
everything accurately. Sometimes two questions, for example in a crossexamination, are elided into one, so there will be an answer to a question that
I did not have time to write down. When I quote from my own notes using
quotation marks, this indicates that I am absolutely sure about the accuracy
of what is quoted. When there are no quotation marks, then I am sure of the
sense of what was said, but not necessarily the exact words.
It is difficult to know what is the best name to use for the set of events that
is often known as the Holocaust. The term the Holocaust emerged only in
the 1960s, and it accompanied a certain re-emergence of talking and writing
about the genocide. It is an unsatisfactory name primarily because of its
original meaning, as a burnt offering in ancient religious rituals. It therefore
carries with it a sense of holiness, and it endows the genocide with a sense of
meaning that was in fact absent. A burnt offering is given in order to please or
placate; the genocide was not offered voluntarily, nor did it result in anything
19 Burgess, 1993.
xxiii
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positive. The phrase also implies a profound uniqueness, with which I am

uncomfortable; it is not a Holocaust but the Holocaust. However, having made
an argument for not using this name for the event, I in fact use it often, simply
because it seems to me that this is its usual name. I do not wish to argue about
names. I use other names too. Shoah is a Hebrew word that translates as
Violent wind or storm; this, also, has attained a status as a common name for
the event. The Nazi genocide of the Jews is more inoffensive, yet it just sounds
technical and clumsy, like a euphemism. I just want to say that when I use
different names it is with some awareness that all of the names are
unsatisfactory. I do not wish to choose between the unsatisfactory names,
and I use whichever seems to fit in a particular context.
The term ethnic cleansing is often seen in quotation marks because it is a
term invented by those who carried out the act in Bosnia. The quotation marks
seem necessary because we do not agree that the process involves any kind of
genuine cleansing. Yet the term is attractive because of its shocking simplicity.
Contained within the term is simultaneously an admission of guilt by those
who use it and a defiant defence of the indefensible. I do not use it in quotation
marks since it seems to me to be a term that describes very clearly its referent.
Perhaps it is similar to the term final solution, which Hannah Arendt often
used; it is a term invented by the perpetrators straightforwardly to describe the
process, yet perhaps we can subvert it, somehow, by using it ourselves.
Chapter One
Cosmopolitan law
Classically, international law is the system that protects the right of sovereign
states to be free from external aggression, and sets out a framework by which
the relationships between states may be regulated. Following the experience
of Nazism, a need was felt to extend the scope of international law so that it
could protect the rights not only of states but of individuals, and also so that
it could hold individuals criminally responsible for the actions of states. It
was recognised that states could not always be relied upon to guarantee the
most basic rights of their citizens, and neither could they be relied upon to
hold those individuals committing the greatest crimes to account. Some crimes
are so huge and some rights so fundamental that they become the business
not just of the citizens of particular states but of humanity as a whole.
In this way, a new form of law began to emerge out of international law, a
form of law that has a logic that transcends international law and is in some
respects in contradiction to it. It seeks to limit state sovereignty, and lays down
minimum standards for the treatment of human beings by states. It claims
the right to put individuals on trial for certain crimes even against the will of
their state and the state in whose territory and in whose name the crime was
committed. In this chapter I argue that, even though this new form of law can
be understood simply as a development in international law, it is more
appropriately recognised as cosmopolitan law. Cosmopolitan law represents
a break from international law because it does not put the rights of states
above the rights of people. Its emergence is tentative and incomplete; it emerges
into a world dominated by forms of power that threaten to extinguish it or to
strip it of its radical content. But cosmopolitan law exists as an empirical fact,
in institutions such as the International Criminal Tribunal for the former
Yugoslavia (ICTY) as well as in treaties, conventions and charters that give
ammunition and courage to those struggling against state tyranny.
A cosmopolitan law to limit the rights of states

It is a straightforward proposition that the Holocaust must never be allowed
to happen again. What is it, that Holocaust that is never to be repeated? One
possibility is that we mean that Jews should never again be subjected to a
campaign of genocidal antisemitism against which they do not have the means
to defend themselves. If the Holocaust is understood as a crime against the
Jewish people, then a response based on Jewish national self-determination
may logically follow. The Holocaust was possible because Jews, unlike many
other ethnic groups, were not organised into a nation state of their own and
so did not have the capacity to defend themselves against attack. Future
genocidal attacks against Jews will be unsuccessful because Jews have won
for themselves national sovereignty in the state of Israel; even if all Jews do
not live there, they have the right to do so as citizens. The Sharon regime in
Israel is committed to a strong form of the politics of nationalism. It values
the rights of Jews above the rights of others; it claims absolute sovereignty
within its territory; and it reserves the right to act as a power outside its territory
in any way that it believes furthers its own national interests.
There was another parallel response to the Nazi genocide. That response,
which began to emerge at Nuremberg, understood the Holocaust not primarily
as a crime against Jews but as a crime against humanity as a whole. The
Holocaust was not understood as a campaign of genocidal antisemitism but
as a campaign of genocidal racism. That which must never happen again was
any genocide against any collectivity. This approach was based on a particular
notion of humanity; it was one that understood human beings to be of equal
value in at least a very basic and minimal sense.1 Human beings are bearers of
fundamental rights. The most basic right, perhaps, is the right to ones identity
as a human being. Those who commit genocide must first challenge the
universality of that right. The Nuremberg trials began to give a material realworld existence to the concept of human rights. They established the principle
that nobody, no state, no head of state, no soldier acting under apparently
legal orders, has the right to violate the most fundamental of human rights.
Those who had done so were tried as criminals. The trials were not held under
the authority of any sovereign power or national legal system, but under the
authority of international law.
An Israeli Colonel was interviewed on Israeli television during the current
intifada. He said:
We have entered Taumon in order to catch terrorists. The terrorists managed to
escape before our arrival, but we are going to give the townspeople hell, to teach
them not to harbour terrorists.2
Gush Shalom, an Israeli peace group, wrote a letter to this Colonel pointing
out that collective punishment is a violation of the Geneva Conventions, and
citing reports that 20 inhabitants of Taumon had already been wounded by
soldiers under his command, among them a 70-year-old imam of the local
mosque. The Colonel was warned that the evidence might in future be
presented to an Israeli or international court empowered to deal with war
crimes and violations of international law. The army responded by issuing a
new directive, forbidding soldiers and officers to give their full names when
interviewed by the media. The reason explicitly given was to prevent the
possibility of their being prosecuted at the Hague War Crimes Tribunal. Prime
Minister Sharon responded by instructing the Attorney General to look into
ways of prosecuting the Gush Shalom activists. Several other ministers who
spoke used the word treason, and so did nationalist Knesset Members and
newspaper columnists. An activist was asked on Israeli television: And would
you really inform upon a fellow Israeli, a fellow Jew, to a foreign court? Are
you that depraved?3
The two responses to the Holocaust, one of Jewish self-determination, the
other of cosmopolitan law, thus appear to be turning on each other. The
nationalists see an external threat to Jews; they see foreigners under the banner
of a new world order claiming to have the right to imprison and punish Jews
1
2
3
[O]ur species is one, and each of the individuals who compose it is entitled to equal moral consideration.
Human rights is the language that systematically embodies this intuition Ignatieff, 2001, pp 34.
Keller, 2002.
Keller, 2002.
Cosmopolitan law
against the legitimate sovereign will of the Jewish state. Those who argue for
the extension of a cosmopolitan criminal legal system see a Jewish army and a
Jewish state committing, or perhaps preparing to commit, war crimes or crimes
against humanity.
But it is not a surprise to see the principles of human rights and those of
national self-determination come into such severe conflict. It was precisely
the fact that individual Nazis were convicted of crimes under international
lawcrimes that were not considered as such under their own system of
rulesthat represented the novelty of the Nuremberg process.
Human rights are instruments that seek to limit the scope of state
sovereignty. They affirm that there are certain things that independent states
do not have the right to do. States may agree to enforce human rights; they
may incorporate this or that human rights principle or charter into their own
systems of law. But state national sovereignty is not the source of human rights.
It is a fundamental strand of the cosmopolitan argument that the incorporation
and enforcement of human rights is not something that states may choose to
do but is something that they are obligated to respect.
In the 18th century, the concept of the Rights of Man gave focus and
legitimacy to struggles against traditional political systems, which held that
some human beings were created with rights to rule over the others, who
were created with only the right to obey. The concept of rights was at the
heart of the post-revolutionary states in France and America. It was held to be
self-evident that all men were created equal; the new society was to be based
on liberty, equality and fraternity. These truths were then embedded into
national constitutions and imprinted on the coinage. These rights were
guaranteed to citizens by national states. As Hannah Arendt put it:
man had hardly appeared as a completely emancipated, completely isolated being
who carried his dignity within himself without reference to some larger
encompassing order, when he disappeared again into a member of a people.4
From the beginning, rights were tied to a national state that could guarantee
and enforce them. The Rights of Man were tied to rights of citizenship. The
classical conception of the nation state that emerged from the French
Revolution was an inclusive one: the nation was defined by the state and
citizenship was enjoyed by all inhabitants of the territory. Yet there was always
the danger that this relationship between the state and the nation could be
reversed: an ethnically defined nation could take control of the state and
exclude those whom it defined as not belonging.
But a larger concept of rights, specifically human rights, was to re-emerge
in the 20th century. Following the Holocaust and other horrors, it was, as Phil
Allot puts it, this timeinstalled not merely in the constitutions of national
societies but in the constitution of international society itself.5 The Nuremberg
process, and the wave of human rights conventions and declarations which
were generally accepted after the war by states, by international law and by
the new United Nations (UN), solidified human rights as a clear and agreed
principle of the international community.
The two principles, however, by which people seek to protect their collective
and individual existence and freedomnational self-determination and
4
5
Arendt, 1975, p 291.

Allot, 2001, p 286.
human rightscontinue to develop apparently harmoniously in parallel. They

have an intertwined existence in national and international law, in political
rhetoric, in institutions and in popular consciousness. There are whole
industries of diplomacy, international relations and international law that map
the subtle detail of the co-existence of national sovereignty and human rights.
The UN is founded upon both principles simultaneously; its charter reaffirms
the principle of national self-determination6 and its major foundational project
after the Second World War was one of the codification of international
humanitarian and human rights law.7
But these two principles conflict in the extreme case when genocide or
ethnic cleansing is on the agenda. The principle of national sovereignty is one
that protects the state from outside intervention on the basis that the sovereign
is the ultimate source of authority. The principle of human rights is one that
asserts that people have rights by virtue of their humanity, not only by virtue
of their citizenship, and so their most fundamental rights are underwritten
by international authority. Genocide and ethnic cleansing are necessarily
carried out by social formations that hold something approximating to state
power. The conflict, then, is about where ultimate authority lies. If it lies in
national sovereignty, then states have unlimited rights to act as they see fit
within their own territory; if it lies outside, then this raises the possibilities
both of external intervention to prevent ethnic cleansing or genocide and of
international courts having jurisdiction within sovereign states to bring the
perpetrators of such acts to justice.
Historically, the development of international humanitarian law and of
international human rights law has been distinct. Humanitarian law aimed
at setting limits to what was legitimate in war. This body of law was concerned
with the treatment of civilians, prisoners of war and the wounded, and with
the types of weapons and tactics that were to be considered legitimate.
International human rights law, first codified in the Universal Declaration of
Human Rights (1948), was concerned with defending human beings against
the arbitrary actions of their states. Humanitarian law originally related to
armed conflict, while the law of human rights related particularly to peacetime
since it allowed governments to derogate in the event of war or other national
emergency.
While international humanitarian law and international human rights law
remain distinct specialisms in legal practice, the theoretical basis for such a
distinction is thin, particularly in relation to genocide and crimes against
humanity. Hersh Lauterpacht argues that the body of humanitarian law upon
which the Nuremberg tribunal was based was itself derived from a notion of
human rights in international law, and that genocide is both a violation of the
individual human rights of those killed and a violation of international
humanitarian law. 8 After Nuremberg the link between crimes against
Eg All members shall refrainfrom the use of force against thepolitical independence of any state
(UN Charter, Article 2(4)); Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any state (Article 2(7)); see
fuller discussion below.
Eg Universal Declaration of Human Rights (1948); Convention on the Prevention and Punishment of the
Crime of Genocide (1948); Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field (1949). Hoog and Steinmetz, 1993.
Lauterpacht, 1950, pp 3637.
Cosmopolitan law
humanity and war was decisively broken; the prosecution of genocide, also,
requires no link to armed conflict.9 In the post-Second World War period,
there was much cross-pollination between humanitarian and human rights
law.10
Jean Pictet envisages the possibility of bringing the two forms of law
together under the common name of humane law.11 While humanitarian
law and human rights law do have different histories, principles and
purposes,12 it is clear that they often share the same objectives and goals; they
also share a common theoretical grounding in the discourse of human rights.
In 1982, at a time when the post-war innovations in international law
appeared to have been permanently frozen out in the context of the bipolar
power struggle of the Cold War, Leo Kuper wrote that:
[T]he sovereign territorial state claims, as an integral part of its sovereignty, the
right to commit genocide, or engage in genocidal massacres, against people under
its rule, andthe UN, for all practical purposes, defends this right.13
Twenty years later this expression of exasperation is not quite as true as it was
when it was written. The legacy of the post-war innovations has been defrosted
and re-examined following the end of the Cold War. It has been built upon by
social theorists,14 international lawyers15 and both legal and state practice. A
current has been emerging out of international law that vigorously challenges
the sovereign right to commit genocide. This current is developing into a new
form of law that a number of theorists have referred to as cosmopolitan law.
David Held, for example, sees a progression from the model of classical
sovereignty, the law of states, through a model of liberal international
sovereignty, in which the liberal concern for limited government is extended
into the international sphere, to the model of cosmopolitan sovereignty, the
law of peoples.16
For Mary Kaldor, the Yugoslavian wars of the 1990s typify the changing
nature of warfare. She argues that in new wars the classic distinctions between
internal and external, war and peace, aggression and repression are breaking
down. War is no longer controlled by sovereign states wielding legitimate
monopolies of violence; rather it is fought out between ethnically defined
10
11
12
13
14
15
16
The prohibition of genocide, derived from the concept of wartime crimes against humanity and later
enlarged to prohibit similar peacetime behaviour, can perhaps be seen as an example of the intersection of
human rights and humanitarian law, Provost, 2002, p 6.
The Universal Declaration of Human Rights was drafted in the aftermath of the Nuremberg process. It, in
turn, influenced the Geneva Conventions of 1949 and its additional protocols of 1977 which set down
standards for the treatment of prisoners of war and wounded soldiers. The progressive rejection of military
necessity as a valid justification for disregarding humanitarian law over the course of the last century can
also be linked to the development of individual human rights: Provost, 2002, p 6.
Humane law comprises the totality of the international legal provisions which ensure for the human
person respect and fulfilment. Pictet, 1985, p 3. Pictet, however, does not argue for such a merger between
the two forms of law.
Humanitarian law allows lawful killing, even on a large scale, of the enemy, in some circumstances even
including civilians; it authorizes various measures of deprivation of freedom which are not recognised by
human rights law: Meron, 1997, p 100.
Kuper, 1982, p 161.
Eg Habermas, 2001; Kaldor, 1999; Held, 1995; Archibugi and Held, 1995; Bohman and Lutz-Bachmann,
1997; Fine, 2002a.
Eg Bassiouni, 1999; Higgins, 1999.
Held, 2002.
social formations that mix the characteristics of nationalist struggles, organised

crime and local warlord-based power. For her, the distinction between human
rights law and humanitarian law is becoming meaningless because of the
degradation of the formal distinction between war and peace:
The violations of international norms with which both bodies of law are concerned
are, in fact, those which form the core of the new mode of warfare A war crime is
at one and the same time a massive violation of human rights. A number of writers
have suggested that humanitarian law should be combined with human rights law
to form humane or cosmopolitan law.17
Thus both Held and Kaldor attach their theories of cosmopolitan law to a
particular narrative of development that seems to give its emergence some
sort of historical inevitability. While this evolutionism is problematic, the central
insight is that a new body of law has emerged out of international law that is
sufficiently different from its classical form to make its recognition as a new
form appropriate. This is not an argument about names: it is an argument for
the recognition of the centrality of the development that is being made and
struggled for. Neither is it a celebration of the historical forces of progress that
are remaking the world. While proponents of cosmopolitan theory do point to
significant structural changes that are occurring in global relations, often
grouped under the heading of globalisation, the recognition of cosmopolitan
law is fundamentally an observation of human agency at work. It is the
recognition of a movement for a form of law that does not replicate that which
is being fought against. The current emergence of cosmopolitan law may turn
out to have been just a fleeting one; it is a movement that may be reversed and
politically defeated. But human rights have an unusual quality: once they have
been asserted, they exist for all time. Once Nazis and ethnic cleansers have
been put on trial under cosmopolitan law, that precedent remains.
Sometimes cosmopolitanism looks like a hopelessly radical and Utopian
project. It begins by asking how to prevent future genocide and it ends up
challenging every power structure, institution and principle: nationalism and
the nation state; the huge imbalances of power between strong states and
weak ones; the agonising gulf between rich and poor; the rule of global capital.
Yet sometimes cosmopolitanism looks like a hopelessly conservative project.
It is only necessary to make some fine adjustments to international institutions,
to take further reforms that are already being made because structural changes
in the world demand them; the rules of the UN Security Council must be
democratised, the US State Department must learn a few lessons from the
experiences of Somalia and of Srebrenica; the International Criminal Court
(ICC) must start hearing cases; problems of global inequality and poverty
must be addressed by agreements on social issues that can be woven into
agreements on free trade and all will be well. Sometimes those who argue for
cosmopolitanism appear to be both Utopian and conservative at the same
time. The emergence of cosmopolitan criminal law is neither. It is, as Robert
Fine put it, an expression of worldliness as the practical wisdom of those
who by hook and crook know how to construct a touch of humanity in the
most forbidding circumstances.18 It is one instrument that can make a
contribution to the fight against the most horrific forms of tyranny.
17 Kaldor, 1999, p 116.
18 Fine, 2001, p 162.
Cosmopolitan law
The project of bringing into existence a legal cosmopolitan authority that

is competent to judge individuals who violate the most fundamental principles
of international law is a limited and achievable project. It claims no more and
no less than ordinary criminal law. It functions in a world characterised by
huge inequalities of power and wealth. It will not eradicate the crimes it
condemns. It will be unjust in the same sense that any other criminal law is
unjust. It does not promise a new world. But on the other hand it will challenge
those men in suits and in military uniforms who are used to being above the
law. General Pinochet never anticipated spending a couple of years of his
retirement fighting for his liberty in a British court. Slobodan Milosevic never
thought that he would have to defend his actions in an international tribunal
against the threat of life imprisonment. The present American, Israeli, Russian
and Chinese regimes know very well that the currently constituted ICC can
never threaten them, yet they feel threatened by it. They understand that
cosmopolitan criminal law has a life of its own, that it is not just a tool of the
powerful. The powerful seem to understand that it is in their interests to block
its development at an early stage.
National sovereignty
Traditional natural law theory held that states were bound by moral
considerations when deciding whether to wage war. Augustine wrote about
war in terms of justice. He argued that states had a right and, in some
circumstances, a duty to take up arms in the cause of justice. Aquinas stressed
the point that a just war must be authorised by due authorities, that is, that it
must be a concern of the public at large, as distinct from a private quarrel.
Neutrality within the framework of traditional natural law could be a
dereliction of duty: if a state stood by and watched another being unjustly
conquered, it was morally in the wrong.19 The rise of the modern state and its
associated modern sovereignty put an end to the medieval recognition of the
(aristocratic) individual as a bearer of international rights and obligations,
except in cases where it was in the interests of states to hold individuals to
account for crimes such as piracy.20
The rise of the modern state also coincided with the generalisation of private
property that freed property owners from traditional obligations and duties.
Relations between individuals, all of whom were now potential property
owners, came to be understood as based on equality.21 In a parallel shift, states
rejected their moral duties and obligations to each other, and instead openly
followed their own self-interests, creating the doctrine of the sovereign equality
of nation states. Nation states, like citizens, and like property owners, were
now all equal before the law. Right replaced duty and ethics.
In the positivist era, argues Stephen Neff, the:
19 Neff, 1993, p 162.

20 Before this gradual change in Europe[individuals] once used to enjoy rights which are still now regarded
as genuine international rightsmainly, the right to wage war. Several decades were necessary to gradually
deprive individuals, ie the nobility in most cases, of their international rights and to subject them to the
exclusive domestic jurisdiction and authority of states. Zoller, 1990, pp 99100.
21 Fine, 1984.

duty to come to the rescue of victim states was firmly rejected in favour of a right
of each state to follow its own national interest as it saw fiteven if it meant standing
stonily aloof while neighbouring countries fell prey to aggression.22
Ethical considerations had, in the real world, often been thin cover for the
material interests of those clerical authorities who assumed the right to make
ethical judgments. Such considerations were replaced by the freedom for
individuals and states to pursue their own interests in an enlightened way
and within a minimum legal framework.
The signing of the Treaty of Westphalia (1648) is seen by many, both
cosmopolitan23 and more orthodox international relations24 theorists, as the
historical event around which this shift hinged. It is represented as the moment
when territorial sovereignty in Europe was entrenched and when the only
limit to the pursuit of state interest became state power. Some who still cling
to the principle of absolute state sovereignty see Westphalia as the birth of the
freedom of nations; some cosmopolitan theorists see it as the moment when
ethics disappeared from the discourse of global politics, a historic fall that
must be remedied; some European integrationists see it as a specifically
European settlement. Yet even if the significance of Westphalia is
overemphasised by those who wish to use it as a pivotal moment in their
particular narrative of history, it has come to represent the shift towards a
new set of principles.
The Thirty Years War (16188), which was ended by the Treaty of
Westphalia, was a complex set of conflicts, involving wars both between estates
within the Holy Roman Empire and with external states, particularly France
and Sweden. In fact, the distinction between states and estates, Staate and
Stnde, or ltat and les tats, was not yet clearly drawn. Indeed, the drawing
of these distinctions, the battle for sovereignty, or freedom from domination
by the empire or other states, was one of the aims of the war for many of the
participants. Some, like the Dutch States General, were successful, gaining
recognition of sovereignty in 1648, while others, such as the Estates of Bohemia
and the Protestant cities and noblemen of France, were forced to accept the
reduced status of subjects.25 The war was exceptionally long, bloody and
destructive.26 The bloodshed was ended by a settlement that provided a
framework for national and religious freedom from the Catholic Church.
The key elements of the model of Westphalia, encapsulating the principles
of relations between sovereign states, are as follows:
(a) The world consists of, and is divided by, sovereign states which
recognise no superior authority.
(b) The processes of law making, the settlement of disputes and law
enforcement are largely in the hands of individual states.
22 Neff, 1993, p 160. 23 Eg Held, 1995.

24 Stanley Hoffman, in his foreword to Hedley Bulls The Anarchical Society, remarks that it is now a clich to
call the system of sovereign states the Westphalian system: Hoffman, 1995.
25 Asch, 1997, p 4.
26 As was reported by Edmund Calamay to the English in 1641, in a manner eerily reminiscent of 21st century
war reporting: Germanyis now become a Golgotha, a place of dead mens skuls; and an Aceldama, a
field of blood. Some nations are chastised with the sword, others with famine, others with the mandestroying plage. But poor Germany hath been sorely whipped with all these three iron whips at the same
time and that for above twenty years space. Quoted in Asch, 1997, p 1.
Cosmopolitan law
(c) International law is orientated to the establishment of minimal rules

of co-existence; the creation of enduring relationships among states
and peoples is an aim, but only to the extent that it allows national
political objectives to be met.
(d) Responsibility for cross-border wrongful acts is a private matter
concerning only those affected.
(e) All states are regarded as equal before the law: legal rules do not take
account of asymmetries of power.
(f) Differences between states are ultimately settled by force; the principle
of effective power holds sway. Virtually no legal fetters exist to curb
the resort to force; international legal standards afford minimal
protection.
(g) The minimisation of impediments to state freedom is the collective
priority.27
This model covers a period from the Peace of Westphalia in 1648 up to 1945,
and many of the assumptions underpinning it are still held to be operative in
international relations today: it is a remarkably stable and enduring set of
principles. It is presented by cosmopolitan and international relations theorists
as an order that recognises, codifies and legitimises a situation of inter-state
anarchy, while at the same time remaining fundamentally unchanged for three
and a half centuries. But this period was also clearly one of immense and
profound change:
[E]vents as momentous as the political revolutions of the late 18th century and
their conjunction of nation and state, the collapse of the mainland European empires
after the First World War and formation of a raft of newly independent nation
states out of their fragments, the rise of totalitarian regimes with global ambitions
in the interwar period, the collapse of overseas empires after the Second World
War and the formation of another raft of new post-colonial nation-statesthese
events are presented within the cosmopolitan paradigm as having modified,
extended and generalised the Westphalian model but essentially as punctuation
marks in a continuous Westphalian narrative.28
This is not simply an order based entirely on an anarchic relationship between

powers. International law, treaty and agreements have had a real and
developing existence within it. But international law was created by
agreements between states, and its first principle was always to uphold state
sovereignty. When sovereign states have clashed, the classical international
order has had little to say other than that this was a private matter between
them; when sovereign states have turned against their own citizens, it has
had even less to say.
In the 19th century international law grew within a legal positivist
framework as the system that governed the relationships between states.
Sovereign states agreed to follow particular rules established explicitly through
treaty and were not bound by any to which they did not agree. Subsequently,
this rigid positivistic approach was augmented by other sources of
international law, particularly customary international law and a recognition
that general principles could be cited as sources of international law;29 but
27 Held, 1995, p 78.
28 Fine, 2002a.
10
the central principle of classical sovereignty, that a state would not be subject
to outside interference in its affairs, remained central.
Following the First World War, and the collapse of the Ottoman and AustroHungarian empires, the system of independent nation states was greatly
expanded by the victorious powers in Europe. Anthony Giddens30 argues that
the external influence of the international system of states played an important
role in the generalisation of the sovereign nation state model. The international
system of nation states required the universalisation of national sovereignty,
exercised through the rapid proliferation of surveillance within territories and
reflexive monitoring between states. Developments as mundane as
international postal services required the existence of national postal
organisations that had full reach within their territories. Sovereign control of
the means of mass violence and the industrialisation and totalisation of war
strengthened the detailed control of territory and information that national
states were developing. Territorial definitions and the sovereignty of borders,
policed according to international agreements, similarly increased the necessity
for internal surveillance by states. The influence of the international system
of nation states and the requirement for international co-operation were,
according to Giddens, centrally important in the consolidation and
generalisation of the doctrine, the reality and the myth of national sovereignty.
However, Arendt highlights the increasing problem of the nation states
inability to guarantee a framework of rights for all. She focuses on this same
post-First World War period when the nation state form was being hurriedly
replicated.31 The form became a pattern to be copied everywhere in order to
fill the vacuum left by the breakup of the multinational empires. The great
powers wanted to impose the nation state form from above, through the peace
treaties and the League of Nations; powerful national groups seized on it in
order to win state power for themselves; and the requirements of the
international system also fuelled the process.
Arendt argues that the result was that, in large parts of Europe, exclusive
ethnic nationalism subverted the classical model of the all-inclusive civic state.
The nation state form became the universal form but the content, which had
classically guaranteed rights to all citizens, was new. In these new nation states
in central and eastern Europe, it was the pre-existing nation, defined
ethnically, that took state power, rather than the state as a set of civic institutions
defining a community of equal citizens as a nation. There was an all-out
struggle between nationalities and minorities for some kind of favourable
political settlement: Slovaks against Czechs, Croats against Serbs, Ukrainians
against Poles, everyone against Jews.32 Rights became increasingly dependent
on national independence, which could only be won at the expense of the
exclusion of others. Hence the settlements that the victorious powers tried to
impose through the League of Nations in fact encouraged and accelerated
the process of competition between national and ethnic groups for
independence and hegemony. Everyone became convinced that [t]rue
freedom, true emancipation, and true popular sovereignty could be attained
29
30
31
32
Bassiouni, 1999, p 104.

Giddens, 1985.
Arendt, 1975.
Fine, 1994.
Cosmopolitan law
only with full national emancipation, that people without their own national
government were deprived of human rights.33 The appeal to human rights
became increasingly one only resorted to if all other rights were out of reach.
The Rights of Man had been dependent on common citizenship, a situation
to which the nation state could no longer even formally approximate.
The Nazis further subverted the classical model of citizenship, declaring
that citizenship of the Reich was dependent upon possession of the correct
blood. Arendt quotes the official SS newspaper (Schwarze Korps) in 1938: If
the world is not yet convinced that the Jews are the scum of the earth, it soon
will be when unidentifiable beggars, without nationality, without money, and
without passports cross their frontiers.34 The plight of this scum is not that
they are not equal before the law, but that no law exists for them; not that they
are oppressed but that nobody wants even to oppress them.35
The nation state could not guarantee the rights of its citizens, and the
unbounded, perpetually destructive ideological madness of Nazism certainly
could not. The logic of cosmopolitan law is to tie the idea of universal human
rights to a legal structure that can give those rights some concrete reality
independently of the state. The appeal to human rights had become a sign of
absolute desperation: cosmopolitan law is one strategy that aims to give the
appeal to human rights some muscle. If the movement for cosmopolitan law
could begin to offer the de facto stateless some kind of protection, this would
also undercut the force of the politics of nationalism, which scorns as Utopian
every politics that does not involve the carving out of nation states and the
exclusion as aliens of those who do not fit.
However, the foundation of the UN, which followed the Second World
War, did little to undermine the centrality of the doctrine of absolute national
sovereignty. Article 2(4) of the UN Charter (1945) states that:
All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purposes of the United Nations.36
It is clear that the prohibition of the use of force by one state against another
was a principle that needed restating and emphasising in the post-war world.
Invasion and occupation of a sovereign state was already, and was more clearly
now, perhaps the most serious and clear contravention of international law.
But there is an assumption that lies behind this principle: there must be
some sense in which the state is seen to represent the people who live within
the territory of that state. This is why invasion and occupation is undesirable.
The principle of self-determination holds that the people of a territory have
the right to determine their own destiny, free from external intervention. So
what kind of relationship is assumed to exist between the state and the people
who live within its territory?
There are clear and agreed precedents and principles laid down in
international law concerning the recognition of states and governments by
other states, governments and international bodies. Emphatically, it is not a
33
34
35
36
Arendt, 1975, p 272.

Arendt, 1975, p 269.
Arendt, 1975, p 296.
UN Charter, Chapter 1, Article 2(4).
11
12
democratic representative structure that bestows international legitimacy on

a government or a state. At the heart of the criteria for international recognition
is a realpolitik acceptance that a regime that de facto holds state power and controls
a territory will in the end be recognised internationally. There is no requirement
for a state or a government to represent its citizens. But if the prohibition of the
use of force by states against other states is to contain a democratic content, if
it is, as it appears to be, a principle that is good for the people who live in a
state, then there must be some assumption of representation. It is not an
assumption of democracy, just an assumption that there is some sense in which
those who hold state power represent the people who live in their state. But
the problem with this assumption of representation, however tenuous the actual
representation may be seen to be, comes where groups of people are actively
excluded from citizenship by those in state power. For example, in what sense
were the Kosovars represented by their Yugoslavian state in 1999? In what
sense were Kurds in Halebja represented by their Iraqi state in 1989? In these
situations, where the state is actively killing and ethnically cleansing people
who live within its own territory, the assumption behind the principle
prohibiting the use of force against a sovereign territory can be seen to break
down. There is, as Arendt argues, a crucial difference between the right of a
nation to self-determination and the right of a state to self-determination. When
the state is the property of a nation, or a ruling clique, when there is not even
the most tenuous representative link between the citizens as a whole and the
state, then the states right to freedom from external intervention can in fact
constitute a right to commit genocide or ethnic cleansing.
Article 2(7) of the UN Charter emphasises the inviolability of the sovereign
state, extending its legal protection against intervention by other states to the
UN itself:
Nothing contained in the present Charter shall authorise the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any
state or shall require the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the application of enforcement
measures under Chapter VII.37
Yet Chapter VII appears to offer little hope for people to expect protection
against their own states. Article 32 in that chapter states that:
The Security Council shall determine the existence of any threat to the peace, breach
of the peace, or act of aggression and shall make recommendations, or decide what
measures shall be takento maintain or restore international peace and security.38
Chapter VII seems to offer some possibility that the Security Council may
authorise the use of force against a sovereign state, but the charter is careful
to emphasise that this may only be done to maintain or restore international
peace and security. So if other sovereign states are at risk there is the possibility
of intervention; emphatically not, if the only risk is to the internal population
of the state.
It must be emphasised that, while these passages from the UN Charter do
make a prima facie case against the legality of humanitarian intervention, as
do other principles of international law, they are open to interpretation and
37 UN Charter, Chapter 1, Article 2(7).
38 UN Charter, Chapter 7, Article 32.
Cosmopolitan law
are sometimes balanced by opposite principles. It is not my case that these

passages from the charter represent the final word on what international law
says about these issues, but rather that they indicate the centrality of the
principle of absolute state sovereignty both in classical international law and
in the foundation of the UN. As will be seen later, the statement of the Security
Councils responsibility to ensure international peace and security was in fact
used to legitimate the foundation of the ad hoc tribunals for the former
Yugoslavia and for Rwanda. There is much work being done by international
lawyers and by international institutions to strengthen the weight assigned
to humanitarian law as against the rights of states.
The dominant current within international relations, which emerged in
the post-war period as an academic discipline, developed along the lines of
the Westphalian model. It is based upon the principles that the only source of
legitimate authority is the sovereign state and that state action is to be
understood as the pursuit of national interest defined in terms of power.
International outcomes reflect the struggle for power. International order is
based on power counteracting power, forming a balance of power equilibrium.
Mainstream international relations theory has been sceptical of the chances
of reform of international organisations to create more stable or just outcomes.
It held that Western liberal democracies did not wage aggressive war, and
that therefore the liberal conscience need not be troubled too much by its
apparent endorsement of the legitimacy of war or the threat of war as the
central mechanism by which disputes are settled.
Throughout the 20th century there has been a sizeable current on the left
as well as on the right that has accepted the realpolitik of absolute national
sovereignty. Under the slogan bourgeois democracy for nations, Lenin argued
for the principle of national sovereignty against imperialist domination. After
Lenin, the internationalism of some of the left dissolved into a greater Russian
nationalism, which constituted support for Russia as the universal nation,39
the nation whose interests coincided with the interests of the international
working class. There has been an acceptance amongst sections of the left that
international relations and also human rights were simply matters of power.
Power politics was often preferred to bourgeois liberal projects of regulation
and law which, the argument goes, made grand promises but in fact
entrenched a system of increasing inequality and tyranny. The Western attack
on Yugoslavia in 1999 was opposed by many on the left on the basis that it
was an infringement of Yugoslavian sovereignty.40
The re-emergence of cosmopolitanism

The word cosmopolitan is loaded with negative connotations. The Stalinists
and the Nazis used cosmopolitan as a term of antisemitic abuse, constructing
Jews as the rootless and the exotic, who prefer opaque and conspiratorial
blood links with others of their own kind to the honest community of
compatriots or fellow workers. Perhaps the force of the myth of the rootless
cosmopolitan originates in the idea that the loyalty of cosmopolitans is
primarily to themselves: they are never ready to die or to kill for their country
39 Fine, 2001.
40 Coates, 1999.
13
14
or for their comrades since they belong nowhere. Cosmopolitans are never
authentic since they have no genuine home, no genuine links to the soil and
no genuine culture. Roger Scruton defines cosmopolitan as follows:
The belief in, and the pursuit of a style of life which[shows] acquaintance with,
and an ability to incorporate the manners, habits, languages, and social customs of
cities throughout the world In this sense, the cosmopolitan is often seen as a
kind of parasite, who depends upon the quotidian lives of others to create the
various local flavours and identities in which he dabbles.41
A strain of contemporary cosmopolitans have economic freedom that comes

from relative wealth, and they have rights guaranteed by their Western
passports. They can celebrate genuine cultures wherever they like and can
feel the ecstasy of authentic mysticism, always, of course, with their Visa
cards sewn into the lining of their jackets. There is even a nation of
cosmopolitans where people from all over the world came together to build a
society without solidarity or community; one whose central values embody
the right of individuality, the right to pursue happiness and the right to exploit
others. This nation is called America and is, naturally, run by Jews. The ugly
myth of the rootless cosmopolitan has infinite variations. It keys into one of
modernitys darkest apparent requirements: to construct some human beings
as undeserving of inclusion in the civilised community.
The myth of the rootless cosmopolitan may be bolstered by the power of
the state to prove it true by making people actually rootless and rightless.
Bogus asylum seekers, economic migrants, illegal immigrants: they are not
only the latest victims of a variant of the myth, but are also victims of a
concerted effort by states to keep them outside the community of citizenship
legally as well as ideologically. Although this sense of the word cosmopolitan
is distinct from the sense in which the word is generally used in this book,
there is a connection with the project to endow all people with rights regardless
of their status as citizens. The project of cosmopolitan law is aimed at bolstering
the position of those who are defined as non-citizens by their state: both those
who manage to leave, exposing themselves to the dangers of the search for a
new citizenship, and those who are unable to leave, but remain at the mercy
of the state that stripped them of their citizenship rights.
The aftermath of the Second World War and the Nazi genocide of the Jews
saw one of the foundational acts of cosmopolitan law: the creation of a tribunal
that was able to bring together the power to call witnesses and punish criminals
and the authority of international law. The Nuremberg trials established the
precedent of international criminal tribunals, and for the first time explicitly
recognised and prosecuted the new offence of crimes against humanity. The
Genocide Convention was agreed in 1948 and codified the crime of genocide.
Both of these crimes were subject to universal jurisdiction, meaning that any
state had the right to arrest and try suspects irrespective of where the crimes
were committed. This brief but vigorous bloom of cosmopolitan law, however,
was short-lived, and quickly withered under the freeze of the Cold War. Yet
immediately at the end of the Cold War it re-emerged. There was no continuous
path of historical progress between Nuremberg and the ad hoc tribunals for
Yugoslavia and Rwanda: the two significant successes for cosmopolitan law
41 Scruton, 1982, p 99.
Cosmopolitan law
were separated by decades in which it struggled for any kind of recognition.

But, even across that separation, the ad hoc tribunals were able to build from
a foundation that had previously been established. In the United States,
President Harry S Truman had requested the Senates advice on, and consent
to, the ratification of the Genocide Convention in 1949, but it was not until
February 1989 that ratification was completed and became binding upon the
US.42 The Senate spent 40 years debating the issue, asserting the primacy of
US sovereignty and the US Constitution over international law and the
International Court of Justice, and putting forward possible reservations and
understandings that would accompany and clarify ratification. The US was
reluctant to allow its sovereignty to be limited, even in the case of genocide.
Passed immediately before the start of the Cold War, the Genocide Convention
was only finally ratified by the US at its very death.
The end of the Cold War saw the concept of cosmopolitanism rescued
from its service as a totalitarian term of abuse by a wave of social theorists
and philosophers, who began to use it as a resource with which to come to
terms with a rapidly changing world. Many of them picked up the thread of
cosmopolitan argument from Immanuel Kant who had in turn rediscovered
the concept from the Greek Stoics and Cynics,43 and had set out a theory of
cosmopolitan law in his 1795 essay, Perpetual peace. He saw that the creation
of democratic republics both required and made possible a supra-national
structure that could prevent war and that could protect the rights of the
traveller in a foreign country. David Held writes:
Cosmopolitan law, thus understood, transcends the particular claims of nations
and states and extends to all in the universal community. It connotes a right and
duty which must be accepted if people are to learn to tolerate one anothers company
and to co-exist peacefully.44
Central to Kants conception of cosmopolitan law was a democratic, universal

content. Cosmopolitan law could only be a framework that enshrined the
principles of mutual recognition and tolerance. Kants vision was of an
international confederation of democratic republics: an international order that
not only regulated the relationships between the republics but also set down
minimum standards of human rights, not just for citizens of states, but also
simply for citizens of the cosmopolis. Kant specifically attacked the depravity
of the Westphalian international order in which each state sees its own
majestyprecisely in not having to submit to any external legal constraint
and in which the glory of a states ruler consists in his power to order thousands
of people to immolate themselves for a cause which does not truly concern
them, while he need not himself incur any danger whatsoever.45
Held46 is typical of this new wave of cosmopolitan thinkers who have
forcefully argued for a new way of thinking about international relations that
puts human rights above state rights and that argues for a new set of supranational institutions able to provide a democratic authoritative framework
capable of addressing pressing global problems. He presents cosmopolitanism
42
43
44
45
46
LeBlanc, 1991, p 2.
Nussbaum, 1997.
Held, 1995, p 228.
Kant, 1991, p 103.
Held, 1995.
15
16
as a set of ideas and practices that are replacing the Westphalian system, both
because that outdated system is no longer capable of creating a stable framework
for a changed world, and also because cosmopolitanism is a better, more open
and more democratic paradigm. The rapid growth of aspects of life that
transcend national borders raises problems of democratic accountability.
The world is changing in such a way that it is increasingly diverging, both
theoretically and structurally, from existing politics that aim to keep democratic
accountability over it. People are increasingly finding that the key networks
of power that influence their lives have escaped from their control, and that
the powerful have liberated themselves from outdated political arrangements
that are increasingly ineffective. Held reworks the concept of sovereignty,
arguing for a layered theory in which sovereignty is sited on different levels:
local, regional, national, global. What is necessary, he argues, to bind the
disparate sites of power and sovereignty into a democratic framework is an
agreed set of minimum principles, a system of cosmopolitan democratic law.
He sees the first step in this journey as the reform of the United Nations.
This process could begin with the UN taking measures to implement, extend
and enforce the UN Rights Conventions. The UN could increase its role in the
settlement and prevention of inter-state conflict by requiring states to submit
to compulsory jurisdiction in the case of disputes falling within the ambit
covered by international law and UN resolutions. The institution of an
international criminal court could play a central role in policing serious
violations of human rights. The General Assembly could play a more legislative
role if a consensus (or near consensus) in that forum were recognised as a
legitimate source of international law. The veto arrangements in the Security
Council could be modified.
A key question is the degree to which a cosmopolitan global order is
becoming a reality or whether, on the other hand, Helds principles of
cosmopolitan democracy constitute little more than a Utopian yearning. It is
not clear whether these kinds of solutions are indeed emerging out of the
existing situation or whether, on the contrary, the voices calling for
cosmopolitan democratic reform are drowned out by the demands of
international capital and great power politics. Indeed, perhaps those liberal
voices are simply being incorporated by the great powers as a democratic
cover for the usual business of pursuing national interest with all the force
that can be mustered.
This book does not focus on cosmopolitanism in general, but on a single
manifestation of its narrative: cosmopolitan criminal law. Cosmopolitanism
is open to the charge that it may turn out to herald the appearance of a new
grand narrative of emancipation to be followed, perhaps, by a new
disillusionment with its inability to deliver.47 Cosmopolitan law, in contrast,
is a set of particular ideas that has achieved a limited but real institutional
existence. The project for cosmopolitan law has had successes and failures.
The Nuremberg and Tokyo tribunals, as well as many national successor
trials, established the principle of individual criminal responsibility for
international crimes and the offence of crimes against humanity. They tried
and punished many of those guilty of crimes during the Second World War.
Many conventions have enshrined rights and prohibitions of their violation
47 Fine, 2002a.
Cosmopolitan law
in international law.48 The tribunals in The Hague and at Arusha are currently,
routinely, applying international humanitarian law and punishing some of
those who are guilty of its contravention. The indictment of Slobodan Milosevic
by the tribunal, at a moment during the Kosovo conflict in 1999 when perhaps
NATO would have preferred it to remain diplomatically silent, is a small
demonstration of the fact that the tribunals do possess some degree of
autonomy in relation to the great powers that allowed them to come into
existence. The Spanish courts established the principle that a former head of
state like General Pinochet may be arrested anywhere in the world and held
accountable for his crimes, and this principle was endorsed by English law.
The ICC is now formally a reality, although it faces significant opposition
from the United States.
On the other hand, there are compelling reasons to be sceptical. Nuremberg
was, in many ways, a fundamentally flawed process of victors justice: the
four powers made every effort to limit and control the universal principles
that they had allowed the process to enshrine as precedent. Following the
post-war trials and the consolidation of much international humanitarian law
on paper, history since the war has repeatedly demonstrated that power
politics overrides paper law. Even in the former Yugoslavia, where perhaps
the most progress has been made, some of the key criminals are still enjoying
their freedom; the legal processes are slow, underfunded and badly publicised.
The success of cosmopolitan law here, where it has been most successful, is
still questionable. And in the former Yugoslavia it happens that the
implementation of this law is in the interests of at least some great powers,
and not against the interests of the others.
Cosmopolitan law: an emergent property of international law

The British Prime Minister Lord Salisbury reported to Parliament in 1887 that:
international law has not any existence in the sense in which the term law is
usually understood. It depends generally upon the prejudices of writers of textbooks.
It can be enforced by no tribunal, and therefore to apply to it the phrase law is to
some extent misleading.49
Whether or not this was true in 1887, it is not true now. There is an enormous
number of manifestations of international law that function routinely and
form a framework for a world in which people, capital and information move
more or less freely. There are binding and enforceable international laws that,
for example, prevent airliners from crashing into each other and ensure that
letters sent from one country to another have a good chance of arriving. There
are international laws and agreements regulating trade, telecommunications,
copyright, and numerous other spheres of social life.50 Article 38(1) of the
48 Eg Convention on the Prevention and Punishment of the Crime of Genocide (1948); Geneva Convention
for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949);
Convention Concerning the Abolition of Forced Labour (1957); Convention against Torture and Other
Cruel, Inhumane or Degrading Treatment or Punishment (1984). Hoog and Steinmetz, 1993.
49 Koskenniemi, 2001, p 34.
50 The fact that they operate routinely does not mean that they are not controversial; the rules of international
trade, for example, and their institutional expression, the World Trade Organisation, are subject to much
criticism.
17
18
Statute of the International Court of Justice (1945) sets out a generally accepted
statement of the sources of international law:
(a) international conventionsestablishing rules expressly recognised by
the contesting states;
(b) international custom as evidence of a general practice accepted as law;
(c) the general principles of law as recognised by civilised nations;
(d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations,
as subsidiary means of determination of the rules of law.51
The first does not pose any problem for a narrow positivist conception of law
that understands state sovereignty as the only source of legitimate authority.
The others build a framework of obligation to which states may become subject.
Customary international law is a combination of two elements: state practice
and opinio juris. The actions concerned must amount to a settled practice, and
the states involved must carry them out as though they believe that this practice
is required by a rule of law. Customary law binds all states with the exception
of those who persistently object; failure to protest against an emerging practice
in circumstances where a reaction would be expected contributes to the
formation of a new custom. Rules originating in treaties between specific states
may pass into the general corpus of international law and become accepted
as such by opinio juris, so as to become binding even for countries that were
not parties to the original treaty. Equally, treaties may be taken as declaratory
of customary law that is already in force. Similarly, UN resolutions or
declarations may be understood either as recognising existing international
law or as signalling an intent to create a new one; but it is state practice
combined with opinio juris that actually defines the law.52 UN resolutions or
conventions only become law when it can be shown that states in fact treat
them as law. The general principles (Article 38(1)c) source is one that allows
courts to make use of fundamental principles that are common to different
legal systems. The highly qualified publicist (Article 38(1)c) source allows
courts to take into account legal argument of respected legal scholars.
Yet Salisburys denial seems to be more than a view that, empirically,
international law did not exist; it also suggests that he was quite happy for it
not to exist. Martti Koskenniemi comments that an empire is never an advocate
of an international law that can seem only an obstacle to its ambitions.53 On
the one hand, a strong state may be happy to operate in the world as nothing
but a power pursuing its own interest. But on the other hand, a strong state,
particularly a hegemonic state, may be in a position to wield an overwhelming
control over the content and functioning of international law. In that case, it
has an interest in bolstering an international legal framework that it can influence
both directly, through pressure, and indirectly, through using it to project its
own world view and values.54 It would appear that the strong win either way.
51
52
53
54
Cited in Higgins, 1999, p 18.

Kontou, 1994, pp 36.
Koskenniemi, 2001, p 34.
Perhaps the current regime in the USA has resolved this paradox by insisting that others follow international
law while at the same time insisting that it is not itself bound by it. Examples of this are its treatment of
prisoners of war from Afghanistan in Cuba and its refusal to join the ICC while at the same time supporting
the ICTY and the International Criminal Tribunal for Rwanda (ICTR).
Cosmopolitan law
This paradox is reflected in the debate about the degree of formalism or

dynamism that is desirable in international law. In the period following the
collapse of the League of Nations and the lawlessness of the First World War,
international law was widely discredited. One response to this was to retain a
traditionally formalistic and rule-orientated understanding of international
law, which aimed to free it from charges of partiality, but at the cost of
characterising international law as largely irrelevant in areas of vital national
interest. A natural law version of this position recognises that international
law is often ignored in areas of vital national interest but that it nevertheless
represents an authoritative normative statement of what is right.
Rosalyn Higgins55 argues strongly against understanding international law
simply as a body of rules that are themselves taken to be distillations of
accumulated past decisions. The role of lawyers and judges in that conception
is to find the correct rule for the new situation and apply it impartially. If the
role of the authorised decision maker is other than to apply rules, or if there is
a large element of discretion in the application of rules, then their decisions
could become contaminated from other spheres of life. The rules view seeks
to avoid questions of policy and values in order to avoid charges of partiality.
However, since no application of rules can ever be simply objective and
mechanical, judgment necessarily involves some kind of application of values
and policy decisions. Hence there is a danger that the rule-based approach
can only seek to disguise such questions as neutral and technical ones. Higgins
argues that questions of policy and values must, rather, be brought into the
open and dealt with systematically. This means that all the factors are properly
considered and weighed, instead of the decision maker unconsciously
narrowing or selecting what he will take into account in order to reach a
decision that he has instinctively predetermined is desirable.56 International
humanitarian and human rights law are explicitly based on a set of clearly
defined values.
Higgins argues that the legal formalist and natural law positions
counterpose authority to power. They banish power to the outer darkness
(that is to say, to the province of international relations) and they assume
that authority can exist in the total absence of supporting control, or power.57
But for Higgins, the authority that characterises law exists not in a vacuum,
but exactly where it intersects with power. Of course, there will be particular
circumstances when power overrides authority. On such occasions we will
not have decision making that we can term lawful. But that is not to say that
law is about authority only, and not about power; nor that power is to be
regarded by definition as hostile to law. Power is an integral element of law.58
The tribunals at Nuremberg and Tokyo brought together a body of
international humanitarian law with institutions empowered to prosecute.
The Yugoslavia and Rwanda tribunals are building on, broadening and
solidifying this precedent, and the ICC is coming into being. In an Austinian
sense, these events are crucial because they begin to constitute a missing
element of law, that is, enforcement. In Higgins terms, they are crucial because
55
56
57
58
Higgins, 1999.
Higgins, 1999, p 5.
Higgins, 1999, p 4.
Higgins, 1999, p 4.
19
20
they reunite authority and power. It is noticeable, however, that the Nuremberg
and Tokyo tribunals brought together a great deal of power, that of occupying
armies and American political will, with a somewhat hastily and inadequately
constructed authoritative framework. In contrast, in the cases of the ICTR,
the ICTY and the ICC, the authority is more solidly constructed out of the
legal precedents already set by those post-war tribunals and the codification
that followed them, and also by their more genuinely international basis, but
the power that underwrites the contemporary tribunals is less reliable and
less committed. A more complete unity of authority and power is yet to be
embodied in a cosmopolitan tribunal.
Higgins argues that her understanding of international law allows for a wider
and more open debate as to the identification and articulation of the values to be
promoted, and that it allows space for claims and counterclaims, state practice,
decisions by a variety of authorised decision makers, and the use of past decisions
and rules to develop appropriate decisions for new situations. However, referring
back to Lord Salisburys dilemma, there is clearly huge scope in Higgins
conception of a dynamic and open process of law for powerful states to influence
decision making in their own interests. They can influence the appointment of
judges who will make decisions; they can imbue processes and institutions with
their own systems of value; they can exert pressure on subordinate states and
institutions. Koskenniemi argues that anti-formalistic approaches to international
law have had an agenda of justifying American dominance in the world. On the
other hand, he also recognises that formal rules are just as capable of co-existing
with injustice as informal principles.59 It is apparent that no legal-philosophical
fix is possible.A clear system of rules provides transparency insofar as it makes
decisions predictable but not insofar as its values are covered behind a veil of
impartiality. The worth of a dynamic system of decision making based on a set
of core values depends greatly on what the core values are and who is in control
of them. The debate between formalism and dynamism must therefore be one
of emphasis rather than one of absolutes. What is most important is that in relation
to crimes against humanity, genocide and ethnic cleansing, there has emerged a
significant body of international humanitarian law, and there is still the possibility
for further development.
Cosmopolitan law as a project not a future

Much contemporary cosmopolitan theory is presented as a narrative,
sometimes very schematically and sometimes with more sophistication. It
begins with a nostalgia for a pre-modern idea of natural law that imposed
ethical restrictions on anyone powerful enough to wage war. It understands
modernity as the epoch of absolute state sovereignty and of inter-state anarchy.
And it understands the period following the Second World War as one in
which the rupture between ethics and power is gradually being bridged. There
is a growth of structural changes that bypass the system of independent states
both from below and from above, creating significant networks of power that
are no longer subject to state authority. Armed groups mix organised crime
and political or ethnic power struggles to undermine the classical authority
59 Koskenniemi, 2001, p 496.
Cosmopolitan law
of the civic state from below, as in Yugoslavia, reflecting a fundamental change

in the nature of armed conflict.60 The capitalist market organises on a global
level that is ungovernable by individual states and necessitates a supranational authority that can extend a democratic authoritative framework to
the new situation. Cosmopolitanism is both happening, as the historical
response to globalisation, and is also normatively desirable, as the solution to
the most striking problems of our time.61
If, however, the quest for this historical narrative is abandoned, then a
different picture is allowed to emerge. Typically of contemporary cosmopolitan
theorists, Mary Kaldors notion of cosmopolitanism understands it as a
response to specifically contemporary problems and as an analysis that
supersedes those that were appropriate to the world as it used to be but not to
the world as it is now:
[I]n the context of globalisation, ideological and/or territorial cleavages of an earlier
era have increasingly been supplanted by an emerging political cleavage between
what I call cosmopolitanism, based on inclusive universalist multicultural values,
and the politics of particularist identities.62
But if the cleavage between the universalist values of cosmopolitanism and the
politics of more particularist identities is understood not as a product specifically
of the postmodern now, which supplants previous political cleavages, but is
instead understood as a thread that runs throughout the time frame of the
narrative,thenwedevelopaclearerandlessapocalypticpicture.Cosmopolitanism
is not a historical stage that arrives after and as a result of the increasing perception
of the deficiencies of the old order. The idea of cosmopolitan law does not follow
nationalism, but runs parallel to it. The narrative is more appropriately understood
both as one of intertwined development and one of acute competition. Immanuel
Kant did not develop his theory of cosmopolitan law after and as a result of the
generalisation of absolute state sovereignty. The Genocide Convention (1948)
was passed simultaneously with the foundation of the UN as a conference of
independent states. The Nuremberg trials did not take place as a response to the
failures of Israeli nationalism or against its interests or sensibilities. The tribunals
for Rwanda and Yugoslavia did not come into existence because the Security
Council became convinced that absolute state sovereignty was no longer a
principle worth defending. Many of the events that we can understand as
landmarks in the development of cosmopolitan law took place within, and not
in opposition to, the existing order of power and law. Part of what is at stake,
therefore, in the argument for the recognition of cosmopolitan law, is the degree
to which its principles and institutions are able to be brought to life as independent
entities. Can they attain sufficient authority, independence and power to threaten
some of the interests that brought them into being? If they can, cosmopolitan
law attains an existence not just as a set of ideas but as a new form of law.
60 Kaldor, 1999.
61 The new cosmopolitanism has a proclivity to turn the cosmopolitan into a fixed idea or abstract idealto
turn it into an ism and so divorce it from the social world of needs, passions and conflicts of which it is
part. The new cosmopolitanism, as I read it, is not only a way of thinking that recognises the validity of
cosmopolitan ideas in social theory; it also elevates the idea of the cosmopolitan to supreme status. Fine,
2002a.
62 Kaldor, 1999, p 6.
21
22
We are concerned here with tracing a thread of law, politics and

philosophy that challenges the idea that community must necessarily be
defined in an exclusive way. It is a thread that opposes tyranny while
remaining vigilant to the danger of creating new exclusions. It is a thread
that has always challenged that side of the dialectic of modernity that
threatens its own particularly menacing and characteristically modern form
of barbarism. Cosmopolitan law is not a sequel to modernity but rather an
element deeply embedded within it. It is also a characteristically modern
form, based on the extension of the project of the universalisation of right.
And neither is it a panacea, a cure for all ills, a new ideology for a new world
order; it is simply a new form of law.
At Nuremberg, in The Hague and at Arusha, aspects of wars have been
deconstructed by cosmopolitan legal processes into crimes. Following the
attacks on the United States in September 2001, the Bush regime set about the
construction of crime into war. Not only was it unwilling to consider
prosecution for those thought to be responsible, it was even unwilling to
respect the most basic principles of humanitarian law in its treatment of
prisoners. Similarly the Israeli regime responds to the criminal bombing of its
civilians by making war against a whole people.
The American and Israeli regimes distort reality in order to make it seem
to fit into a model of orthodox international relations. This is necessary because
they want it to appear legitimate for them to relate to the world as nothing
but powers in pursuit of what they portray as national interest. These are
both situations that cry out for a cosmopolitan response, but the response
that is actually made is one of brutally denying and reshaping reality so that
it first looks like, and then actually becomes, inter-state conflict. In our
advocacy of cosmopolitan law, let us not pretend that history and progress
are on our side. Let us not write off such defeats for our perspective as the
final follies of the old order. Let us understand clearly that cosmopolitan law,
while it has attained a genuine material existence, has not superseded state
power but continues to develop alongside it and often in opposition to it.
Chapter Two
Individual responsibility and
cosmopolitan law
Chapters Two and Three examine two central advances made at the
Nuremberg tribunals that followed the Second World War. The first is the
establishment of the legal responsibility of individuals for their parts in
violations of international humanitarian law committed by large state-like
formations. The second is the codification of crimes against humanity and
the establishment of universal jurisdiction for such crimes. These two
innovations can be seen as the foundational acts of cosmopolitan criminal
law. They constitute the subjects of cosmopolitan criminal law in individual
perpetrators and individual victims, and they define the scope of such law
with the concept of universal jurisdiction.
We were only obeying orders was not a valid defence at Nuremberg. Article
8 of the Charter of the International Military Tribunal at Nuremberg (1945)
stated:
The fact that the Defendant acted pursuant to order of his Government or of a
superior shall not free him from responsibility1
Conversely, for those giving the illegal orders, the charter allowed no Acts of
State defence:
The official position of defendants, whether as Heads of State or responsible officials
in Government Departments, shall not be considered as freeing them from
responsibility or mitigating punishment. (Article 7)
The tribunal added that a superior order would not serve even as a mitigating
factor unless it was given under circumstances that left a defendant with no
moral choice but to obey the order.2
The tribunal established a definite link between individuals and their
actions, by treating so called cogs in a murder machine as perpetrators,
refusing the excuse of service to the state. It presupposes that choices are
available to the perpetrators of such crimes. If no such choice is in fact available,
that is, if the situation is one of kill or be killed, then this would constitute a
legitimate defence or mitigation.
This insistence on the individual criminal responsibility of perpetrators
was one of the most important and far-reaching precedents that were set at
Nuremberg. It is a principle that since its establishment at Nuremberg is
necessarily at the heart of cosmopolitan criminal law. The Nuremberg
precedent has been followed and strengthened by the tribunals for Yugoslavia
and Rwanda.
The question we3 shall address in this chapter is how well this legal
assumption of choice and responsibility fits with the sociological reality of
1
2
3
Jackson, 1949, p 242.

Murphy, 1990, p 151.
This chapter was written jointly with Robert Fine and is based on a previously published article: Fine and
Hirsh, 2000.
24
the ways in which individuals make the decision to commit a crime against
humanity. Is the decision to commit such a crime one for which it is reasonable
to hold individuals to account?
The prevailing sociological explanation of such decisions in relation to the
Nazi genocide is that provided in Zygmunt Baumans Modernity and the
Holocaust (Bauman, 1993). Bauman himself may not think of his work precisely
in this way, but his basic proposition is that it is the dominance of rational
choice over moral response in the modern age that is the key to understanding
how ordinary men and women commit such extraordinary crimes. Conversely,
the key to overcoming this potentiality is seen to lie in the development of a
postmodern ethics that subordinates the imperatives of rational choice to a
reconfigured moral point of view. Bauman does not like a world structured
around rational choice, but he accepts that this is the actuality of our present
world; he looks to a way of thinking that overcomes the constraints of rational
choice and in its place revives our suppressed capacity to act in a moral rather
than rational way From this perspective, rational choice appears as a form
of human decision making that arises in the modern epoch and that has as its
consequence the exclusion of ethical concerns. And rational choice theory
appears as a form of reified consciousness that hypostasises rational choice as
a natural presupposition of social life and blinds us to its historical
preconditions and demoralising consequences.
We are not going to defend rational choice theory against this very sharp
line of criticism, but rather argue that this line of criticism is over-dependent
on the rational choice model that it attacks. We want to argue first, that the
reduction of modernity to the imperatives of an amoral and instrumental
rationality paints a one-sided picture of modernity that obscures the inner
connections between modernity and the development of moral consciousness
itself; secondly, that the reduction of reason to instrumental, technical or
technological rationality distorts the meaning of reason and severs its
connections with thinking, understanding, willing and judgment; thirdly, that
the decisions of individuals to participate in crimes against humanity
(including those synthesised under the name of the Holocaust) cannot be
adequately explained within this framework; and fourthly, that the moral
point of view itself is far from being a purely innocent or suppressed factor in
decisions to commit crimes against humanity. Most of all, although we
recognise that Bauman and those who think like him have undoubtedly
revealed something extremely important about the nature of organised
violence in the modern age, we must also be alert to the dangers of forcing
the empirical phenomena into an over-determined theoretical straitjacket.
Modernity and the Holocaust: Baumans critique of

rational choice
In Zygmunt Baumans conception, the modern world really does run the way
rational choice theory says it runs: in terms of short term and instrumental
preferences set within a given domain. Every aspect of social life encourages,
coerces and impels individuals to act in accordance with their own short term,
narrow, selfish interests. We live according to that principle alone; we do
that which we find rational in terms of immediate self-interest. This includes
the search for means, obedience to orders, and conformity with social norms,
Individual responsibility and cosmopolitan law
regardless of their moral content. It also means the prioritising of selfadvancement or self-preservation regardless of moral cost. We become a new
type of bourgeois: not the Kantian who thinks and judges for himself, but the
mass man (to use a phrase borrowed from, among others, Hannah Arendt)
who can kill without passion or enmity, simply as a job or in service to the
state, because it is an efficient means to a given end or because he is
commanded so to do or because that is what everyone else is doing. The
making of merely rational choices, without regard for ethics, is the very mark
of this social type. It is, Bauman argues, through the combination of many
such rational choices that the Jews of Europe were rounded up and murdered.
As long as we remain within this rational template, we are destined to play
our part in the genocide.
The frighteningly domestic image through which Bauman portrays
modernity is that of a garden culture in which the extermination of weeds is
the necessarily destructive aspect of the gardeners productive and aesthetic
vision. A gardener has an image of how he wants his garden to be. He wants
it to be well ordered and to conform to his own dreams of beauty and serenity.
He likes certain plants and breeds them to fit in with his plan. He does not
like other plants, which he designates as weeds and poisons or incinerates. In
this scenario, the gardener sees the elements of nature instrumentally, in terms
of how they affect him and may be affected by him, rather than as things
endowed with an intrinsic value of which he is guardian.4 In modernity human
beings are themselves stripped of intrinsic value. Some are defined as weeds,
others are selectively bred. Genocide is a kind of social weeding, and Hitler
and Stalin were but the most consistent, uninhibited expressions of the spirit
of modernity.5
If the technologisation of conception is one aspect of the spirit of modernity,
the other is the technologisation of execution. In this reading of the situation,
it was the bureaucracy that executed the final solution, and even the political
master, Hitler, found himself in the position of the dilettante standing
opposite the expert and facing the trained official.6 There is no decision, as
such, to commit crimes against humanity, simply the normal functioning of a
bureaucratic state. In his discussion of Claude Lanzmanns Shoah,7 Bauman
tells us that by far the most shocking among Lanzmanns messages is the
rationality of evil (or was it the evil of rationality?).8 For the bureaucratic
form of administration that prevails in modern society has a machine-like
quality in which each bureaucrat follows detailed written rules unthinkingly
and without responsibility for what the machine is doing as a whole.
Bureaucracy is a machine for the exclusion of moral responsibility.
Bauman argues that the defining features of modern bureaucracy were not
only well established in Germany during the Holocaust, but made the
Holocaust possible. Government was conducted through a centralised,
hierarchical and bureaucratic state; respect was afforded to science, knowledge
4
5
6
7
8
Bauman, 1993, pp 9192.

Bauman, 1993, p 93.
Bauman, 1993, p 15. Compare with Alan Bullock: [Hitler] had a particular and inveterate distrust of experts.
He refused to be impressed by the complexity of problems, insisting until it became monotonous that if
only the will was there any problem could be solved. Bullock, 1983, p 381.
Lanzmann, 1985.
Bauman, 1993, p 202.
25
26
and expertise; rational behaviour was valued over irrational behaviour; the
breaking down of tasks into small parts was prevalent; and the technology of
factories and railways was well established. The Nazi regime appears in this
reading as an extreme form of the modern state, and the administration that
carried out the Holocaust as but an extreme form of modern bureaucracy.
Even the choice of extermination was an effect of the earnest effort to find
rational solutions to successive problems, and at no point did the Holocaust
come into conflict with the principles of rationality:
The Final Solution did not clash at any stage with the rational pursuit of efficient,
optimal goal-implementation. On the contrary, it arose out of a genuinely rational
concern, and it was generated by bureaucracy true to its form and purpose.9
In Max Weber s exposition of modern bureaucracy, Bauman sees no

mechanismcapable of excluding the possibility of Nazi excessesnothing
that would necessitate the description of the activities of the Nazi state as
excesses.10 If it were the case that modern rational bureaucracy reduces the
individual to nothing more than a cog in a machine, a blind applicant of rules,
an actor only in the narrowest sense of making rational choices on exclusively
instrumental groundsif all this were true, then we could only conclude with
Bauman that the condition of modernity robs people of any significant sense
of moral responsibility, and that it is this negation of moral responsibility that
is the condition of the possibility, as Bauman might put it, of the decision to
commit crimes against humanity.
Bauman implies that neither the abstract conceptions of individual
responsibility found in law nor the lack of any conception of responsibility in
sociology offers a remotely adequate response to the enormity of the issue.
Legal notions of individual responsibility are in this context only a legal fiction
imposed on a recalcitrant technological reality, and in any event a court is
itself a bureaucratic, rule-bound institution that judges questions of criminal
guilt by abstraction from the complex reality of three-dimensional events.
Putting the blame on a particular individual does little to confront the system
of rational choice, for it is modernity rather than individual killers that is
primarily at fault. If perpetrators are guilty of not breaking free from this
system, this is also the fate of the vast majority of people. Only the few have
the courage and vision to risk everything by stepping out of society and
confronting their unconditional responsibility for others.
As far as sociology is concerned, Bauman argues that it typically mimics
the society that it purports to understand. The general absence of the concept
of moral responsibility in sociology, Emile Durkheims identification of
morality with conformity to social norms, Weber s rationalisation of
bureaucracy, the reification of rational choice by rational choice theoryall
this in effect reflects the conditions of modern society. In opposition to the
unheroic mass man who succumbs to the pressures and constraints of rational
choice, the only way to save ourselves from complicity is to hear the call to
Being with Others, the call of alterity, the call to act morally, the call to go
beyond the morality-silencing bounds of reason and society and rediscover
the pre-social sources of ethical life in the face of the other.
9 Bauman, 1993, pp 1617.
10 Bauman, 1993, p 10.
Rationality and the Holocaust reconsidered

Two particularly problematic areas in Baumans critique of rational choice
concern his focus on bureaucracy. First, in Webers conception of bureaucracy
individual officials are responsible for their actions and part of the immense power
of bureaucracy is based on this responsibility for decision making and rule
interpretation that is distributed throughout the hierarchy. If the Nazi organisation
of terror and extermination constituted a typical modern bureaucracy, as Bauman
argues, then individuals would have been expected to take responsibility for the
tasks assigned to them and the leadership could not have relied on its employees
to perpetrate murder simply as cogs in a machine. As Weber recognised, the
process of following a rule is always mediated through mind and consciousness,
and the ethos of public service is the oil that allows the machine to run.11 Secondly,
the social organisations that conceived and executed the Holocaust were so
different in both ideology and organisation from the Weberian model of
bureaucracy that they should not rightly be called bureaucracy at all. They
expressed a mode of rule that inherited elements of bureaucratic authority but
reconfigured them in a way that cannot simply be understood in terms of Webers
analysis of rationality. The Holocaust was neither organised by typically modern
formations nor by anything approximating to an ideal Weberian bureaucracy.
Certainly, the analysis of totalitarianism in power offered, notably, by
Hannah Arendt (in The Origins of Totalitarianism) and Franz Neumann (in
Behemoth) paints a profoundly different picture of totalitarian rule.
Totalitarianism was not the final culmination of the power of the modern
state, but a revolution against the structures of the modern state. Movement
rather than structure was its essence. Totalitarian rule was organised on the
basis of the intermeshing of various state and party institutions and the
proliferation of organisations within the party. Duplication was particularly
apparent within the many police apparatuses, which all did similar work,
spying on the population and on each other, without any clear knowledge of
who would be rewarded and who would be purged.12 In the complex
duplication of organisations involved in the final solution, all were equal
with respect to each other, and no one belonging to one group owed obedience
to a superior officer of another.13 The only rule according to the Fhrerprinkip
was that formulated by Hans Frank: Act in such a way that the Fhrer, if he
11 Rules are nothing without interpretation. Bureaucracies are machines made up of people, each of whom
takes decisions within given parameters. Weber writes: a system of rationally debatable reasons stands
behind every act of bureaucratic administration, that is, either subsumption under norms or a weighing of
ends and means. Gerth and Mills, 1991, p 220.
12 See also Alan Bullock: There was always more than one office operating in any field. A dozen different
agencies quarrelled over the direction of propaganda, of economic policy, and the intelligence services.
Before 1938 Hitler continually went behind the back of the Foreign Office to make use of Ribbentrops
special bureau or to get information through Party channels. The dualism of Party and State organisations,
each with one or more divisions for the same function, was deliberate. In the end this reduced efficiency,
but it strengthened Hitlers position by allowing him to play off one department against another. Bullock,
1983, p 381.
13 Arendt, 1994a, p 71. In September 1939, the Security Service of the SS, a party organisation, was
fused with the regular Security Police of the State, which included the Gestapo, to form the
Head Office for Reich Security (RSHA), commanded by Heydrich. The RSHA was one of 12
head offices in the SS, two others of which were the Head Office of the Order Police, which was
responsible for rounding up Jews, and the Head Office for Administration and Economy
(WVHA), which ran concentration camps and later the economic side of extermination. [cont]
27
28
knew your action, would approve it.14 This categorical imperative is the
opposite of clear, rational, written rules. The leader principle is not that of a
bureaucracy organised on the basis of formal rules within a structured
hierarchy, for the allegiance of the official is not owed to his or her immediate
superior but to the leader himself.
The individual responsibility of the official is arguably even greater under
the leader principle than in a regulated hierarchical bureaucracy in which
responsibility and authority are distributed according to plan. On the one
hand, to grasp the will of the Fhrer demands zeal and creativity far in excess
of the old fashioned plodding bureaucrat, and wide latitude is given to subleaders for the execution of policies. On the other hand, each holder of position
is held responsible for all the activities of his subordinates, even in cases of
disobedience and failure. The perpetrators were not generally forced into the
formations that implemented the Holocaust. Eichmann was keen to win
promotion on his particular front line, and the members of the murderous
police battalions (the Einsatzgruppen) were given the opportunity to withdraw
from the killing actions.15 When they accepted the authority of these outfits,
they chose to do so even if the parameters of their choices were limited.
Authority in the modern sense of the term is not the same as power. People
choose to defer to authority. To be sure, choices are never completely free; they
are made within the limits of what is possible and of what alternatives are
possible. There are always external constraints, yet rarely are those constraints
so rigid that there is no choice; rarely is the structure so dominating that it
removes all agency. Under the leader principle, authority works through the
will of every member to know and act in accordance with the will of the leader,
and to take responsibility for all the decisions taken in their field of operation.
Bauman was right to tie his analysis of responsibility to the actual ways in
which decision making was organised in the planning and execution of the
Holocaust, that is, not to remain exclusively at the level of political philosophy
or legal theory but to link such concerns with a sociology of decision making.
However, the presumption of rationality in the substance of his analysis
obliterates what Arendt called the horrible originality of totalitarian rule.
It is commonly noticed about the Holocaust that one of its most striking
features was its industrialisation of death. The Holocaust was of its time; it
used the methods of its time and, particularly important to Bauman, are the
methods of modern management through which the genocide was in part
carried out. We say in part lest the industrial image of Auschwitz overtake
our imagination of the Holocaust as a whole. We should remember that the
Nazis devised two basic strategies for the annihilation of Jews: mass shooting
and mass gassing. Special duty troops of the SSs (Schutzstaffel) Security Service
and Security Police, called Einsatzgruppen, were assigned to each of the German
armies invading the Soviet Union and were given the task of rounding up
Jews and killing them through crude and primitive methods of shooting. These
methods were the antithesis of Baumans image of clean and dispassionate
[cont] The RSHA contained Section IV, the Gestapo, divided into Section IV-A, dealing with opponents,
and Section IV-B, dealing with sects. The Higher SS and Police Leaders were in a different command
structure to the 12 offices of the RSHA, while the Einsatzgruppen were under the command of the RSHA,
but were not one of the 12 offices: Arendt, 1994a, p 70.
14 Arendt, 1994a, p 11.
15 Browning, 1993.
white-coated technicians introducing gas into gas chambers. These were

methods that confronted the killers with the blood, faces and screams of their
victims. It is estimated that some two million Jews were murdered in this way.
To murder the rest of European Jewry the Nazis built camps with large scale
gassing and sometimes crematorium facilities (Auschwitz, Belzec, Chelmno,
Majdanek, Sobibor and Treblinka) and many other camps that were designed
to work their inmates to death. The technology used here was often barely
more sophisticated than the brute violence of the Einsatzgruppen and it was
only when death camps were combined with labour camps (such as at
Auschwitz) that architectural relics of industrial killing were left behind. All
in all, about three and a half million Jews were murdered in this way. A further
half a million Jews or so were killed through hunger, disease and exhaustion
in the ghettos and as victims of random terror and reprisal. In short, we should
be wary of the contemporary synecdoche that substitutes Auschwitz, or rather
an industrialised representation of Auschwitz, for the whole.
Some elements of bureaucracy certainly existed in the Third Reich: people
were sometimes numbered, processed using bureaucratic-style machines,
placed under systems of surveillance; there were papers, form filling, official
stamps and files of information kept on individuals. But there was no
bureaucratic hierarchy of command or system of rules that would be
recognisable to a student of Weber. Officials who were technically in positions
of authority could be denounced and replaced by their juniors; one apparatus
was liable to be liquidated in favour of another; the stability and hierarchy of
genuine bureaucracy were absent. What was most significant about the
execution of the Holocaust was not the presence of bureaucratic authority
but rather the reconfiguration of these bureaucratic elements to construct a
principle of rule such as the world had not experienced before.
When Bauman turns rational choice into a modern fatality, he also reduces
it to its basest elements. He declares that most scientists would be prepared
in exchange [for research grants]to make do with the sudden disappearance
of some of their colleagues with the wrong shape of nose or biographical
entry.16 He says that rational individuals would play their part in gassing
millions, if it meant holding on to a good job. The rational individual would
look the other way, stand by and refrain from intervening into affairs that
were none of his business, that were not in his job description. This is not the
individual who would devote her life to making sense of the world in all its
boiling complexity. The shame we feel when we live in a world in which the
Holocaust has happened is represented as the antithesis of reason. It is as if
morality and reason were opposed armies, or the opposition of morality and
reason that Bauman discerns under Nazism were true of modernity itself.
Bauman also totalises rational choice to explain the behaviour of those who
conceived the genocide, those who organised it, those who perpetrated it and
those who stood by without intervening. And the same mechanism also
appears to have governed the behaviour of the victims:
The Jews couldplay into the hands of their oppressors, facilitate their task, bring
closer their own perdition, while guided in their action by the rationally interpreted
purpose of survival.17
16 Bauman, 1993, p 109.
17 Bauman, 1993, p 122.
29
30
Bauman argues that the regime in power is always in control of the game in
such a way that the rational choice from the point of view of the subordinates
is also the preferred choice from the point of view of the regime. So it was that
the Jewish administrators and police of the ghettos were enticed to co-operate
with the Nazis in the deportation of Jews on the grounds that, however many
Jews they produced, they were saving or at least delaying the transport of the
rest. The Nazis were able to rely on the Jews to act rationally and thus
collaborate in their own extermination:
In [the world of Auschwitz], obedience was rational; rationality was obedience
Rational people will go quietly, meekly joyously into a gas chamber, if only they
are allowed to believe it is a bathroom18
Here the rationality of the Jewish response that looked to make an

accommodation with the Nazis is contrasted with the irrationality of the
Warsaw Ghetto uprising. But the choice was not between unreason and reason.
We may prefer the heroism of the Warsaw Ghetto uprising to the conformity
of the Jewish councils, but in both cases Jews were faced with an impossible
choice. The accommodation strategy seemed reasonable to a conservative
Jewish leadership who understood the Nazi threat as a continuation of an
age-old antisemitism with which a modus vivendi could eventually be found.
It was an attempt to give a little in order to save more. The rebellion strategy
adopted in Warsaw seemed reasonable when it became clear that the Nazis
planned to kill everyone and that there was no exit. It does not increase our
understanding of events to assign the epithet of rational to one strategy and
ethical to the other.
There can be two interpretations of Baumans overall thesis. The weak
one may be summed up by his observation that modern civilisation was not
the Holocausts sufficient condition; it was, however, most certainly its necessary
condition.19 This interpretation brings to the fore the fact that the Holocaust
was modern both in its conception and in its execution, and that the
conventional view of Nazism as simply anti-modern cannot hold. The strong
interpretation of this thesis is that the dynamics of modernity push towards
genocide, that there is nothing in modernity that pulls away from genocide,
and that even when genocide is not actual its potentiality is ever present.
Bauman himself vacillates between these positions, but between them there
is a lot of ground. The weak thesis reminds us that the Holocaust happened
in a civilised European country that was technologically and culturally
advanced, and cannot be written off as an aberration or just another example
of mans inhumanity to man. The strong thesis is that modernity brings us
the uncoupling of human beings from moral choice and the tying of human
beings to a narrow, short term instrumental rationality. People are made into
unthinking cogs in the all-powerful structures of modernity. Bureaucracy
brings us the human being who is incapable of seeing the bigger picture.
18 Bauman, 1993, p 203. He adds: [T]here are no scientific methods to decide whether the well-off residents
of the Warsaw Ghetto could have done more to alleviate the lot of the poor dying in the streets of hunger
and hypothermia, or whether the German Jews could have rebelled against the deportation of the Ostjuden,
or the Jews with French citizenship could have done something to prevent incarceration of the nonFrench Jews. Bauman, 1993, p 205.
19 Bauman, 1993, p 13.
Science brings us a rule forbidding the use of teleological vocabulary.20

Rational choice becomes our fate.
Doubtless the technical-administrative success of the Holocaust was due
in part to the skilful utilisation of moral sleeping pills made available by
modern science, technology and organisation; but it was also due to the skilful
use of moral imperatives. The appeal by Nazi leaders to duty over private
passion, economic utility and military need is now well establishedwhether
in overcoming the resistance of ordinary men to slaughtering other human
beings or in overcoming the resistance of Generals to wasting much needed
military resources on the killing of Jews. The moral point of view was neither
an innocent nor an excluded party in the decision to commit atrocities.
Police Battalion 101 and individual responsibility

In his book Ordinary Men,21 Christopher Browning tells the story of Police
Battalion 101, which was one of the formations that followed the German
front as it invaded Russia in 1941 in order to kill the Jews who lived there. The
personnel for the battalion was recruited from Hamburg during the war, after
the youngest and fittest men, as well as the most politically committed, had
already been drafted. Browning explores how these middle aged citizens of
Hamburg were transformed into mass killers. In interrogations after the war,
the men of the battalion identified a number of factors that led them to become
killers: the wish to conform, to yield to peer pressure and to obey authority.
They told of their desire not to be designated cowardly and not to evade their
part in the dirty work that had to be done. Neither political indoctrination
nor antisemitism seems to have been a major factor in these decisions.
The first assignment for the battalion was the rounding up of the Jews of
Josefow. The men were to be sent to work camps and the women and children
were to be shot. The Commander, Wilhelm Trapp, made it clear that no member
of his battalion would be compelled to participate in the shootings: about a
dozen of the men immediately decided not to take part, and others opted out
later. However, about four-fifths of the men decided to participate. At first
they found their task difficult to perform, but Browning argues that there was
a toughening up process that hardened the men to killing once they had
already taken part. The decision to commit crimes against humanity seems
to have followed the first killings rather than to have preceded them. Once
these men found themselves implicated in massacres, the group acquired an
esprit de corps of mutual guilt. As we find among perpetrators of recent atrocities
20 Bauman, 1993, p 170. Take the case, which Bauman cites, of Dr Arthur Gtt, the Head of the National
Hygiene Department in the Ministry of Interior who argued for selective breeding of human beings. Bauman
comments that Gtt had no doubt that the policy he envisaged of selection-cum-elimination was a logical
extension, if not culmination, of the advancement of modern science. But Bauman does not discuss whether
the theories of Dr Gtt actually constituted a logical extension of the work of the celebrated scientists, nor
indeed whether there was any scientific basis whatsoever for his theorising. Gtt and his colleagues may
have been recognised by the Nazis as genuine scientists, but that does not mean that we have to accept this
recognition. The problem with eugenics was not that it was scientific but that it was not scientific. Bauman
seems to accept that Nazi doctors are doctors: that their talk of hygiene, cleansing, blood and purification
were genuinely within a medical tradition. But this is to take rhetoric at its face value.
21 Browning, 1993.
31
32
in Bosnia, the group regularly drank large amounts of alcohol in the evenings
to blank out their days and avoid having to think about their actions.
The members of Police Battalion 101 seem to fit Baumans model better
than that controversially advanced by Daniel Goldhagen,22 that they were
driven by an antecedent and virulent antisemitism. They decided to commit
crimes against humanity under the influence of the command structure to
which they were subordinated. In private life, they were no more predisposed
to violence than any other randomly selected group. Yet this genocidal
formation was able without much difficulty to incorporate most of them and
use them as its agents. There was a role for deference to authority and for the
unthinking following of orders. The individuals were explicitly given a choice
and most of them made a positive choice to kill. Social factors, such as esprit
de corps, peer pressure and the wish not to stand out, were all present in the
making of these choices. However, the hands-on massacres in which these
men participated had nothing to do with social or technological distancing
from unseen and faceless victims.23
There seems to have been some sense in which killing became an adventure
for the members of the police battalion. They became caught up in an orgy of
drink and violence and togetherness. It was, perhaps, similar to the explanation
of Varnado Simpson for his behaviour at My Lai during the Vietnam War.
Suffering from post-traumatic stress syndrome, he later described the events
as follows:
But like I say, after I killed the child, my whole mind just went. It just went. And
once you start, its very easy to keep on. Once you start. The hardestthe part
thats hard is to kill, but once you kill, that becomes easier, to kill the next person
and the next one and the next one. Because I had no feelings or no emotions or no
nothing. No direction. I just killed. It can happen to anyone. Because, see, I wasnt
the only one that did it. Hung em, you knowall types of ways. Any type of way
you could kill someone, thats what they did. And it can happen.24
22 Goldhagen, 1996.
23 Bauman acknowledges this point. He writes: At the Einsatzgruppen stage, the rounded-up victims were
brought in front of machine guns and killed at point blank range. Though efforts were made to keep the
weapons at the longest possible distance from the ditches into which the murdered were to fall, it was
exceedingly difficult for the shooters to overlook the connection between shooting and killing. But Bauman
immediately goes on to claim that this was why the administrators of the Holocaust found the methods
inefficient and dangerous to morale: Other murder techniques were therefore soughtsuch as would
optically separate the killers from their victims. The search was successful and led to the invention ofgas
chambers; the latterreduced the role of the killer to that of the sanitation officer. (Bauman, 1993, p 26.)
It seems to me that this account misconstrues not only the order of succession between the face-to-face and
the distanced (what about the death marches at the end of the war?), but also the organisation of murder
in the camps (as if the executioners did not have face-to-face contact with those they humiliated, tortured
and killed). In the genocide in Rwanda in 1994, a rate of killing which exceeded that accomplished by the
Nazis was achieved, using mainly clubs and machetes. In both Rwanda and Bosnia, it was common for
perpetrators and victims to be well known to each other. The recent evidence does not show that either
technological or social distancing are important factors in perpetrating crimes against humanity.
24 Bilton and Sim, 1992, p 7.
Adolf Eichmann and individual responsibility

Adolf Eichmann was a key bureaucrat and engineer of the genocide of the
Jews. He was the man in charge of the whole programme of Jewish
extermination. He was not forced into his job. In his case, there was no question
of kill or be killed. On the contrary, he was ambitious, keen to win promotion,
and personified unquestioning recognition of the authority of the Fhrer.25 At
his trial he said that although he bore no ill feelings towards his victims, he
simply could not have acted otherwise. He said that he had acted according
to his conscience, and that his conscience would have troubled him only if he
had questioned orders, a thought that seems never to have occurred to him.26
If we are to believe what Arendt wrote about him,27 he was a rather
pedestrian individual, with few motives beyond his diligence in looking out
for his own career advancement. He had no ambition to prove a villain nor
was he even a convinced anti-Semite. He was simply a bureaucrat rooted in
an everydayness that made him incapable of critical reflection or moral
judgment. It was sheer thoughtlessness that predisposed him to become one
of the greatest criminals of the modern age. The lesson Arendt took from
Eichmanns Jerusalem trial is that we have to come to terms with the fact that
the man responsible for the execution of the Holocaust was terrifyingly normal:
the deeds were monstrous but the doerwas quite ordinary, commonplace,
and neither demonic nor monstrous.28
Eichmann appears in this account as the very personification of Baumans
rational actor driven by a narrow and petty self-interest to push aside any
consideration of the moral substance of the job he did. When he offered the
improbable defence that he had nothing to do with the killing of Jews, he
seems not so much to have been lying as revealing that he merely never
realised what he was doing.29 Since he conceived himself as a man who was
only doing his job, acting not out of inclination but only in a professional
capacity, he could not regard himself as a murderer. He saw himself merely as
a cog in a machine and so he was able to play his role without worrying
about the purpose of the whole machine, or the ethical consequences of its
work. He was an archetype of what Arendt called the mass man: the new
type of bourgeois who presents himself simply as an employee.30 Eichmann
stands at once as the exemplar of the claim that the perpetrators of the
Holocaust were men like ourselves who merely followed the norms of
rational decision making, and as a rejoinder to conventional images of a world
25 Arendt, 1994a, p 45.

26 Arendt, 1994a.
27 It may be that Arendt was influenced too much by the persona that Eichmann wanted to present at his
trial, which was not exactly the real Eichmann. Yet it is precisely the persona which Eichmann presented
at the trial which appears to fit so well with Baumans rational bureaucrat picture. Arendts picture of
Eichmann could easily have been Baumans inspiration for his account of the genocidal bureaucrat.
28 Arendt, 1994a, pp 34.
29 Arendt, 1994a, p 287.
30 Alain Finkielkraut argued in relation to the Barbie trial that the Holocaust was from Eichmann to the
engineers on the trainsa crime of employees and that it was precisely to remove from crime the excuse
of service and to restore the quality of killers to law-abiding citizens that the category of crimes against
humanity was formulated. Finkielkraut, 1992, pp 34.
33
34
dichotomised between our own absolute innocence and the unspeakable Nazi
beast. He was living proof of what Karl Jaspers and Hannah Arendt termed
the banality of evil, demonstrating that the perpetrators were endowed more
with prosaic triviality than with satanic greatness.31
On the face of it, the case of Eichmann offers a strong case for Baumans
rational choice argument. It also highlights, however, a major difficulty with
his formulation of the problem. Arendt mentions one moment in the trial
when Eichmann suddenly declared that he had lived his whole life according
to Kants moral precepts and especially according to a Kantian definition of
duty. Arendt comments that this was outrageous, since Kants philosophy
was bound up with the human faculty of judgment, with thinking for oneself,
and so rules out blind obedience. However, when pressed further, Eichmann
revealed that he had read Kants Critique of Practical Reason, and he came up
with a roughly correct version of the categorical imperative:
I meant by my remark about Kant that the principle of my will must always be
such that it can become the principle of general laws.32
Headdedthat,fromthemomenthewaschargedwithcarryingoutthefinalsolution,
he knowingly ceased to live according to Kantian principles. Arendt comments
that Eichmann did not merely cease to follow Kants categorical imperative but
ratherthathedistortedit inlinewithHansFranksformulation,whichismentioned
above: Act in such a way that the Fhrer, if he knew your action, would approve
it. This meant that duty was duty, a law was a law; there could be no exceptions,
not even for ones own friends. But when Eichmann said that he had given up on
Kant, this also meant in effect that he had put his own self-advancement before
any ethical concerns, and blind obedience to the leader before his own practical
reason and reflective judgment. In saying this, he must have recognised at some
level his own descent into thoughtlessness, lack of reflection, unreason.
This episode reveals the inversion of reason and passion in Baumans
reformulation of Kant. In place of Kants identification of practical reason
with larger moral concerns and passion with self-interest, self-advancement
and self-preservation, Bauman reverses this order of association. Reason is
now identified with self-interest, self-advancement and self-preservation, and
ethics is now identified with ones emotional response to the face of the
suffering other. In Kants hierarchy of reason and passion, passion is
subordinated to the demands of reason but is not denounced or damned.
Baumans hierarchy is more severe: it does denounce reason (that which
Kant calls passion) in favour of postmodern ethics (that which Kant calls
reason). The neo-Kantian turns out to be more Kantian than Kant. The effect
of this inversion is not only to accept the disconnection of rational choice
from ethics, but also to sever the relationship between thinking and
understanding on the one hand, and moral judgment and decision making
on the other.33 There are many moments in the text when Bauman writes of
the separation of reason and ethics under Nazism. This may well be true,
though we would continue to insist that the Holocaust had more to do with
31 Arendt and Jaspers, 1992, p 62.
32 Arendt, 1994a, p 136.
33 The interconnections of thinking, willing and judging, and the dangers inherent in the separation of thinking
from willing and judging, became the subject matter of Hannah Arendts later investigations in The Life of
the Mind: Arendt, 1978.
the eclipse of reason (whether conceived in terms of economic, political or

military utility) than with the triumph of reason, and more to do with the
triumph of a horrible kind of racist morality than with the eclipse of morality.
The main point, however, is not to turn this particular opposition of rational
and moral choice into an unalterable fact of modernity, still less into a fact of
life as such. This is the slippage that seems to dog Baumans extraordinary
analysis.
The case of Eichmann reveals a man who, when he became a Nazi, selfconsciously gave up on practical reason (thinking for himself, developing
his reflective capacities, judging on the basis of universal criteria) and replaced
it with mere obedience to orders, social conformity, rigid duty to order. This
was his choice. It was a terrible one in the circumstances. But it had nothing
to do with the effacement of a pre-social moral consciousness by the technicalrational norms of modernity. For the individuals capacity to think and judge
for himself is as much a feature of modernity as is the awesome power of
society over the individual.
Conclusion on individual responsibility

Bauman is not explicit about his attitude to trials for crimes against humanity,34
though he does comment that he found the experience of the Demjanjuk and
Barbie court cases embarrassing.35 His work could be read as a theoretical
underpinning of an argument that it is impossible for a court of law to remove
from crime the excuse of service as Alain Finkielkraut hopes. Indeed, Klaus
Barbies defence, and in fact also those of Eichmann and the Nuremberg
defendants, were not incompatible with the substance of Baumans work.
Barbies lawyers, the Congolese MBemba, the Algerian Bouata, and the
French-Vietnamese Vergs, constructed a left wing and anti-imperialist
defence. Barbies actions were not crimes against humanity; the Holocaust
was simply a family quarrel amongst white Europeans; whites did to other
whites what all Europeans routinely do to everyone else: so what? asks the
rest of the world. By putting Barbie on trial you are simply trying to camouflage
European history, to scapegoat the Nazis for that which you are all
responsible.36
If the structures of modernity are as deterministic as in Baumans account,
then trials make little sense, since nearly everyone is guilty. Only those who
took a moral decision to step outside the structures of modernity are, in this
framework, not guilty. Bauman stresses the fact that this was possible; he
gives examples of individuals who risked their lives to behave morally and
irrationally; but they are necessarily very rare and unusual individuals.
Moreover, trials make little sense because courts are exactly the sort of
modernistic, rule-bound, bureaucratic, rational institutions that Bauman
argues are responsible for the Holocaust. Tribunals themselves, for Bauman,
must surely fail to step outside the realm of totalitarianism.
34 At a lecture Bauman gave at Warwick University on 19 February 2001, I was twice able to ask him what his
attitude was to crimes against humanity trials. I still do not know what his attitude is, since he seemed to
go to some lengths to avoid giving a straight answer.
35 Bauman, 1993, p 206.
36 Finkielkraut, 1992.
35
36
So is the precedent set at Nuremberg, to hold individuals responsible for

their actions, sustainable? What can we say about the ways in which decisions
to commit such crimes are actually made?
First, we are not dealing with individuals who had prior, fixed preferences
for antisemitism and were thus just on the look out for propitious
circumstances in which they could maximise these preferences at low cost to
themselves. The making of a mass murderer is a social process in which there
is an interplay between the act and the actor in which the commission of the
deed may precede both its signification and its justification by the actors
involved. Rather than the motive leading to the act, it was often the case that
complicity in atrocity, torturing and murdering innocent human beings led to
the search for good reasonsperhaps on the basis of the Pascalian principle
that if you kneel first, then prayer will follow. There must be an emphasis on
the malleability of preferences, on how experience changes them, on how
ordinary men turn into hardened monsters or at least become hardened in
their monstrous acts.
Secondly, the making of a mass murderer is a social process in which there
is also an interplay between structure and agency. Regarding structure, the
Fhrer principle represented a new context (contra Bauman) in which ordinary
people are given new carrots to become extraordinary by committing vile
deeds. We see here a kind of ordinaryconformist and officially validated
extraordinariness. Once these incentives disappear, some become (like
Eichmann) obedient servants to the authority of the court that tries them, and
most become ordinary democratic civil servants and businessmen. Regarding
agency, it is clear that some people walked away from the incentives to
murder and exercised their own moral judgment. Such judgments were not
entirely reflective in the sense that there were no rules or standards to guide
them, for individual subjects could still appeal beyond the particular normative
order of the so called Volk to a humanist traditionof thinking for yourself,
of the right to subjective freedom, of universal equalitythat is as much part
of modernity as instrumental rationality. We see here strong confirmation of
the argument (contra Bauman) that not even this totalitarian epoch could
reduce all action to instrumental rationality. On the contrary, totalitarian terror
demonstrated ultimately the subordination of instrumental rationality to a
certain moral point of view in which (as Arendt has argued) questions of
economic, political and military utility were self-consciously subsumed to
the end of killing and degrading Jews.37
Put at its strongest, it is difficult to escape the conclusion that the moral
point of view is always a crucial element of decision making in the modern
world, and that no rational choice can be understood solely in terms of
instrumental rationality. For without reference to moral concerns, we cannot
explain how some people monitor their preferences, refuse all incentives to
violate them and resist to the end lending themselves to the horrible processes
we have described in the text. Value rationality works not just as an accidental
or subordinate ingredient within preference formation and expression, but as
a constitutive aspect of how weindividuals thrown into a world without
absolute foundationsmake sense of, understand and judge the preferences
we make.
37 Arendt, 1994b.
The reality is that not everyone was responsible for the Holocaust. Social
structures were in place that put considerable pressure on many individuals
to commit crimes against humanity. There was peer pressure; there was the
pressure to pursue personal success and advancement; there was pressure to
conform; there was pressure to submit to authority; there was pressure to
follow racist and genocidal ideology. There were risks, sometimes small,
sometimes large, but very rarely life-threatening, in resisting these pressures.
There were also more personal motives, such as killing as part of an adventure
or as an outlet for psychological frustration and anger, and such as simple
sadism or love of power. But whatever motives were to the fore in any
particular case, it is clear that individuals made choices; sometimes choice
was limited; sometimes other options were not attractive; sometimes they
were difficult and dangerous. But perpetrators are never merely the puppets
of the social structure within which they find themselves.
37
Chapter Three
Crimes against humanity:
the actualisation of a universal
Auschwitz has become the signature of an entire epochand it concerns all of us.
Something happened there that no one could previously have thought even possible.
It touched a deep layer of solidarity among all who have a human face.1
In this chapter I look at the Nuremberg process, the ways in which the charge
of crimes against humanity was used, and the codification of the term
genocide in the Genocide Convention (1948). I go on to look at the emerging
academic discipline of genocide studies and the ways in which it understands
and defines these concepts.
The Nuremberg process, in spite of its inadequacies and flaws, was the
beginning of the actualisation of the concept of cosmopolitan criminal law. It
was the point at which power first coincided with supra-national authority
in a successful legal response to mass killing. The acceptance of the new legal
charge of crimes against humanity heralded the recognition of the principle
that the most serious human rights abuses are the business of all human beings,
and that the prosecution of such crime is therefore a supra-national matter.
The development of cosmopolitan criminal law is a process that occurs within
the sphere of existing global politics and diplomacy, and within the sphere of
existing power relationships. It is a messy and uncertain development, always
beset by the grossest hypocrisy. It is diluted and perverted by those states and
heads of states who have reason to fear the consequences of universal
jurisdiction. It is the opposite of Utopian; it has a real existence and an organic
development. It is not just the assertion of an abstract universal by critics but
is the concrete development of a universal in the real world.
It was not a new problem that faced the four powers when they were
confronted with the prospect of victory in 1945. Whenever the overthrow of
an old regime is achieved, the problem is posed of how to deal with the old
leadership in order to neutralise them as a threat, hold them to account for
their actions, and build the foundations of the new regime in such a way as to
make its difference clear to all. When Charles I and Louis XVI were executed,
there was little doubt as to the legal irregularity of the institutions that decided
their fates. It could not have been otherwise, since under all existing law
regicide was the greatest crime. Otto Kirchheimer calls this trial by fiat of the
successor regime and the Nuremberg trial the most important successor
trial in modern history.2 Part of its importance was in putting up a barrier
1
2
Habermas, 1991, pp 25152.

Kirchheimer, 1969, p 323. Kirchheimer fits his discussion of the Nuremberg process within the context of
the use by states of political trials, the most dubious segment of the administration of justice, that segment
which uses the devices of justice to bolster or create new power positions: Kirchheimer, 1969, p vii. This
places discussion of Nuremberg next to discussions of the Soviet show trials and the French military trials
of their National Liberation Front (FLN) prisoners in Algeria.
Crimes against humanity: the actualisation of a universal
between the past and the present. Experience shows that every successor
regime feels intensely that in condemnation of the predecessors practices lies
the key to humanitys future3 Post-war trials of Nazis, therefore, had clear
benefits for the four powers in terms of legitimation, both of themselves and
of the new regimes that they wanted to build.
However, as soon as they had allowed the genie of cosmopolitan law out
of the bottle, they went to great lengths to control it, limit it and peg it back.
The universality of the new form was perceived as threatening. No crimes
were to be considered that had been committed by any of the Allies, such as
the bombings of Dresden, Tokyo, Hiroshima or Nagasaki; the treatment of
German civilians by the Red Army; the Russian complicity in the invasion of
Poland; or French collaboration with the Nazis. The concept of crimes
against humanity at Nuremberg was tied to crimes against peace and to war
crimes, which were safer charges for the powers because they were more
concerned with familiar questions of inter-state relationships and
sovereignty.4 The Allied powers tried to avoid allowing the universality of
the crimes against humanity charge to set universal precedents. They did
this by particularising the charge. The offence of crimes against humanity
was linked to a particular nation, Germany, and a particular frame, that of
the Second World War.5 At Nuremberg, it was easy for the four powers to
keep significant control over much of the process. In the end a conclusion as
to the efficacy of international cosmopolitan law must focus on the question
of its ability to find an autonomous space for itself. If cosmopolitan criminal
law is able to attain a genuine life outside the control of the great powers,
then this autonomy is achieved; if it remains nothing more than a faade
erected for purposes of legitimation that remains forever under the control of
the powerful, then it is not.
The International Military Tribunal at Nuremberg

In his report to the President of the United States, Justice Robert H Jackson,
the chief prosecutor, said that the important achievements of the Nuremberg
process had been to make explicit what was already implicit in international
law with respect to war crimes, crimes against peace and crimes against
humanity, and to incorporate these principles into a judicial precedent.6
Perhaps he was downplaying the degree to which the process was innovative,
since during the trials it had been important for the prosecution to undercut
the ex post facto argument, which held that defendants were being tried for
offences that did not exist in international law at the time of their commission.
3
4
5
6
Kirchheimer, 1969, p 325.

The Berlin Protocol of 6 October 1945 ingeniously limited the scope of crimes against humanity by means
of replacing a semicolon with a comma in the London charter, which resulted in the fact that all the crimes
against humanity enumerated therein were made punishable only in so far as they were ancillary or
subsidiary to other criminal acts within the jurisdiction of the tribunal. Also, the tribunal partly in disregard
of the terms of the charter which gave it jurisdiction in respect of crimes against humanity before or
during the war, in so far as they were committed in connexion with or in execution of any crime within
the jurisdiction of the tribunal, apparently declined to treat acts committed prior to the war as crimes
against humanity. Lauterpacht, 1950, pp 3536.
For this point I am indebted to Alan Norrie: Norrie, 2002.
Jackson, 1949, p 437.
39
40
While the prosecution argued that the offence of crimes against humanity
was in fact simply a distillation of existing law, the formulation and use of
that charge set an important precedent.
The London conference of the USA, the USSR, Britain and France took
place in summer 1945, and produced the charter of the tribunal. The trial of
the major war criminals started on 20 November 1945 and finished on 1
October 1946 with three acquittals, seven prison sentences and 12 death
sentences. There were eight members of the tribunal or judges, a senior and
an alternate from each of the four powers. There were notable absences from
the dock: Adolf Hitler, Josef Goebbels, Heinrich Himmler and Martin Bormann
were dead. Gustav Krupp was intended to represent German industrial might
in the dock, but was elderly and found by the court to be mentally incompetent.
However, all of the leading Nazis who had been arrested were on trial.
The prosecution at Nuremberg charged the defendants with four counts.
Count one, conspiracy, charged all 22 of the defendants with participation in
a common plan to prepare and execute the substantive crimes enumerated in
counts two, three and four:
At the trial of any individual member of any group or organisation the Tribunal
may declare (in connection with any act of which the individual may be convicted)
that the group or organisation of which the individual was a member was a criminal
organisation.7
Count one, charging defendants with conspiracy, is not outlined in the charter
as the other three counts are: the language of conspiracy is included in Article
6(a) in relation to crimes against peace, but not (b) or (c) in relation to war
crimes or crimes against humanity. The charter was the result of hurried
negotiations in London and showed the effects of much patching and
compromise. 8 Stanislaw Pomorski comments that one is at a loss to
understand why conspiracy to prepare an aggressive war should be a crime
per se while conspiracy to set up a death camp should not be.9 The ambiguity
and confusion of the charter left considerable law making powers in the hands
of the tribunal, and Jackson prepared the conspiracy count to include all the
other substantive crimes, arguing that the tribunal should accept this even
though it was not explicitly allowed by the charter itself. In the end the
judgment of the tribunal rejected Jacksons expansion of the conspiracy charge.
The conspiracy/criminal organisation plan was conceived by a young
lawyer from the American Department of War, Colonel Murray C Bernays,
and was set out in a memorandum dated 15 September 1944.10 Bernays
opposed an administrative solution to the problem of de-Nazification,
preferring a judicial one that was intended to grant due process. He proposed,
first, that a court should judge that the Nazi government, party and agencies
such as the SS (Schutzstaffel) and SA (Sturm Abteilung) were conspiracies to
commit murder and other crimes. The same court should then try individuals
considered to be representative of those organisations who would then be
found guilty of the same offences on the grounds of their membership of
these organisations alone. Once the conspiracy was established, each act of
7
8
9
10
Smith, 1977, p 61; Article 9 of the London charter.

Smith, 1977, p 58.
Pomorski, 1990, p 222.
every member thereof during its continuance and in furtherance of its purposes
would be imputable to all other members thereof.11 Thus any member of
these criminal organisations could then be arrested and found guilty simply
by virtue of their membership.
Jackson argued for the conspiracy/criminal organisation approach in
order to reach a great many of the equally guilty persons against whom
evidence of specific violent acts might be lacking although there is ample
proof that they participated in the common plan or enterprise or
conspiracy.12 Bernays plan was adopted by the Americans with a little
refinement and watering down.
Pomorski argues that the approach was important in that it allowed the
tribunal to find that Hitlerism, as a social phenomenon, was criminal:
If one perceives a deterrent and preventive function of criminal law in a broad
sense, if one views it as a consciousness-building factor, the idea of organisational
prosecution fulfilled its tasks very well.13
Renaud Donnedieu de Vabres, the French senior judge, set out his argument
against conspiracy in two deliberative s3essions (27 June and 14 August 1946)
and with two memoranda.14 First, conspiracy was, he argued, anAnglo-American
legal concept, unknown to both continental and international law. Secondly, the
prosecution had failed to prove the existence of a huge 25-year conspiracy
beginning in the early 1920s; it had failed to establish that there was a common
plan to prove that a group of people had, at a specific time and place, agreed on
definite criminal objectives and the criminal methods they intended to use to
attain them. Instead, the prosecution had merely gathered up various expressions
of Nazi principles such as passages from the party programme and quotations
from Mein Kampf, contending that these were the core of a fixed criminal plan.
He argued that there had been no master plan, but a development of policy.15
Thirdly, conspiracy was not a crime against international law at the time the acts
were committed so that any charges would be ex post facto. Fourthly, the London
charter had only listed three prosecutable crimes. At the end of Article 6, the
mysterious short paragraph had been added stating that all those who participated
in a common plan or conspiracy to commit any crimes would be responsible
for all the acts performed by any persons in execution of the plan.16 Donnedieu
deVabres argued that this paragraph was aimed at complicity and did not provide
for a specific general crime of conspiracy.17 Fifthly, he argued that conspiracy
required some degree of equality amongst the conspirators that did not exist in
this case due to the overpowering weight of the Fhrer compared to the other
actors. He wanted to convict for substantive crimes and, where necessary, also
to punish accomplices and accessories, but to drop the conspiracy charges.
Some German observers welcomed Donnedieu de Vabres opposition to
conspiracy charges, since they implied collective German guilt, but he himself
11
12
13
14
15

Smith, 1977, p 121.
If we understand Nazism through the work of Hannah Arendt, then the idea of a huge organised and
coherent conspiracy is difficult to sustain. It is also clear that Nazi policy, for example in relation to the
Jews, was not planned in advance but developed over time.
16 Smith, 1977, p 122.
17 Smith, 1977, p 123.
41
42
took the opposite position. He thought that to find the Nazi leadership guilty
of the conspiracy would too easily absolve those Germans not directly
involved. He was also worried that the Jewish conspiracy myth could be
replaced by blaming a small secret Nazi conspiracy for Germanys problems.
The case of Karl Doenitz illustrates the complexities involved in the idea of
conspiracy. He was Commander of the German submarine programme from
1935 until 1943, when he became Commander in Chief of the navy. He was
convicted at Nuremberg on counts two and threecrimes against peace and
war crimesand sentenced to 10 years in prison. There was much discussion in
his case about the attack on Norway, and whether this particular attack was
aggressive or defensive, since there was evidence that the British were also
planning to attack Norway. There was also much discussion about the waging
of submarine warfare, and whether Doenitz had been responsible for a policy of
failing to rescue or actively killing survivors of naval attacks. Biddle, theAmerican
judge, admitted that Germany waged a much cleaner [naval] war |than we
did.18 The case against Doenitz hung on things that were not centrally important,
and that might have been carried out by either side in the war, such as the attack
on Norway or the ruthlessness of submarine warfare. But was there not a case
for charging Doenitz with being a part of the Nazi machine that planned to rule
the world and commit crimes against humanity? There was a division of labour:
some ran death camps; others took the territory that was to be cleansed of Jews;
others patrolled the seas to keep them safe for Nazi shipping and dangerous for
enemy shipping. Irrespective of particular crimes committed by the U-boat fleet,
there was a good argument for finding that those who ran the U-boat fleet were
doing so as part of a greater Nazi plan. Crimes against humanity or genocide are
necessarily conspiracies. Though the court in general rejected the conspiracy
prosecution,itmaybearguedthattofinddefendantsguiltyoftheothersubstantive
crimes contained the necessary element of conspiracy in a different form.
Count two of the prosecution was crimes against peace:
All the defendants with divers other persons during the period of years preceding
8 May 1945 participated in the planning, preparation, initiation and waging of wars
of aggression that were also wars in violation of international treaties, agreements
and assurances.19
In 1927 the Assembly of the League of Nations had adopted the Declaration
on Aggressive War, which declared aggressive war to be an international crime:
All wars of aggression are, and shall always be, prohibited. Every pacific means
must be employed to settle disputes of every description that may arise between
states.20
In 1928 these propositions were incorporated into the Paris Pact for the
Renunciation of War as an Instrument of National Policy, signed by 15 states
and later adhered to by 48 others, converting it into a universal treaty. The
Kellogg-Briand Pact (1933), the Convention for the Definition of Aggression,
reaffirmed these principles. The t ribunal at Nuremberg held that the KelloggBriand Pact in particular constituted international law against the waging of
aggressive war. In its opinion, the renunciation of war:
18 Pomorski, 1990, p 261.
19 Smith, 1977, p 16.
20 Lukashuk, 1990, p 127.

as an instrument of national policy necessarily involves the proposition that such
a war is illegal in international law and that those who plan and wage such a war,
with its inevitable and terrible consequences, are committing a crime in so doing.21
The tribunal also noted thatArticle 227 of the Treaty of Versailles (1919) provided
for the establishment of a special international tribunal to try the former German
Emperor for a supreme offence against international morality and the sanctity
of treaties. Article 228 provided for the indictment of others accused of having
committed acts in violation of the laws and customs of war.22
Count three, war crimes, was the least controversial count since it relied on
the most precedent. It added together the sections of the Hague Rules of Land
Warfare and the Geneva Conventions that prohibited certain wartime actions,
such as acts of mistreatment of prisoners, murder and devastation not justified
by military necessity.23 These conventions and treaties became part of customary
international law that binds all states irrespective of whether or not they have
ratified this or that particular convention. Common war crimes evolve into
crimes against humanity if they are committed pursuant to orders drawn up
in advance, thereby assuming a state-organised character, and also have as
their objective the mass annihilation of people.24 States have the responsibility
to prosecute their own soldiers who commit war crimes. Clearly, when the
state itself is criminal the prosecutions must come from outside the state.
Crimes against humanity

[N]amely, murder, extermination, enslavement, deportation and other inhumane
acts committed against any civilian population,25 whether before or during the war,
or persecutions on political, racial or religious grounds in exception of or in
connection with any crime within the jurisdiction of the tribunal, whether or not in
violation of the domestic law of the country where perpetrated.26
The term crimes against humanity first appeared in the declaration of 28

May 1915 by the governments of France, Britain and Russia concerning the
massacres of Armenians in Turkey. This declared that all members of the
government of Turkey would be held responsible, together with its agents
implicated in the massacres.27 However, in the end, it remained little more
than a declaration.28
21 Murphy, 1990, p 149.

22 Murphy, 1990, p 150.
23 Smith, 1977, p 12. Conventions against war crimes include St Petersburg Declaration (1868); Hague
Conventions (1907); Geneva Protocol (1929); Geneva Regulations on the Treatment of Prisoners of War,
Wounded Sailors and the Civilian Population on Occupied Territory (1929); Geneva Conventions of 1949
and supplementary protocols thereto (1977).
24 Reshetov, 1990, p 169.
25 On 22 February 2001, three Bosnian Serbs were convicted at the International Criminal Tribunal for the
former Yugoslavia for crimes against humanity. They had been involved in the perpetration and organisation
of the mass rape of women during the war in Bosnia. The significance of this case is that the defendants
were found guilty of crimes against humanity solely on the basis of the rape charges. This case added rape
to the specific crimes which can constitute crimes against humanity: Prosecutor v Kunarac, Kovac and Vukovic.
26 Ginsburgs and Kudriavtsev, 1990, p 177.
27 Clark, 1990, p 177.
28 In April 1919, following heavy British pressure, an Ottoman court was set up in Constantinople
to put the wartime Turkish leadership on trial for war crimes and for the genocide of the
Armenians. Kemal Bey and Tevfik Bey were found guilty of acting against humanity and [cont]
43
44
To the extent that the crimes committed by the Nazi regime, particularly
against the Jews, were unprecedented, the formulation of a law that was capable
of addressing the particular unprecedented characteristics was required. Crimes
against humanity are different from murder, not just quantitatively, but also
qualitatively. The Nazis were not simply unwilling to share Germany with the
Jews; they were unwilling to share the earth with them. State expulsions, murders
and persecutions were not unprecedented; in the context of international law,
expulsions had been considered as crimes against neighbouring states. Genocide
is qualitatively different; it is a criminal enterprise against the human
condition.29 As Hannah Arendt puts it, genocide is:
an attack upon human diversity as such, that is, upon a characteristic of the
human status without which the very words mankind or humanity would be
devoid of meaning.30
Genocide is a crime against every human being on earth because it is an attack

on each persons status as a human being: it means that a persons recognition
as a person is conditional; it means that they may be defined as insects or rats
instead of human beings, and treated accordingly. To make an analogy with
murder: a murder is not considered only to be the concern of the individual
who is murdered or that persons family. In most contemporary legal systems,
it is also considered to be the business of the state, and it is the state that has
responsibility for prosecuting the murderer. Similarly, the Nazi genocide was
not simply the concern of the Jews, but was a crime of direct relevance to the
whole of humanity.
The formulation and prosecution of crimes against humanity by the four
powers at Nuremberg was therefore a cosmopolitan act. It was a recognition
that such a crime is not the property of any particular group or state, nor does
it fall within the jurisdiction of any; it is the responsibility of human beings in
general. Implicit within the logic of the term crime against humanity is the
need for an international court. Also implicit within the term itself is a
particular, modern, universalist conception of humanity. It is a conception
that assumes a fundamental equality of right throughout the human
community. It assumes that human beings are necessarily bearers of basic
rights.
Robert Fine31 looks at the ways in which the charge of crimes against
humanity at Nuremberg was viewed by writers at the time of the trials. He
identifies three distinct contemporary strands of opinion. First, there was a
cosmopolitan point of view, such as that of Karl Jaspers. Jaspers defined four
strata of responsibility for the genocide:32 political responsibility, in that each
human being had a responsibility for how they were ruled; moral
responsibility, in that each person would confront the countless acts of
29
30
31
32
[cont] civilisation for their parts in the deportation of Armenians. Kemal was hanged, but there was much
nationalist opposition to the process and the Ottoman court freed many other prisoners without charge. In
the end the British were also forced by the triumph of the nationalists in 1921 to free their prisoners.
Constantinople is the Nuremberg that failed. What Constantinople shows, most of all, is that the enormous
political difficulties of mounting prosecutions against foreign war criminals can be so great that a tribunal
can crumble. Bass, 2000, p 106.
Edgar Faure, in Finkielkraut, 1992, p 28.
Arendt, 1994a, p 269.
Fine, 2000.
Jaspers, 2000.
indifference without which genocide would not be possible; metaphysical

responsibility, in which every individual is held responsible for the fact that
human beings are capable of such crimes; and legal responsibility. This last
responsibility was to be addressed by criminal courts and would be assigned
to those who had actually carried out crimes against humanity, whether with
their own hands or from behind a desk. Jaspers argued that prosecution was
centrally important in order to avoid the designation of collective German
national guilt. The prosecution of mass murderers as mere criminals would
remove their aura of satanic greatness and expose them in all their banality.
The world would not allow such crimes to go unpunished.
Secondly, Fine identifies a realist critique among contemporary writers,
represented most strongly by the defendants themselves. This critique defined
the Nuremberg process as nothing more than the application by the powerful
of their own will, an application that was obfuscated behind a faade of due
process. The charge is that the process was nothing more than victors justice.
Kirchheimer addresses this criticism in a way that acknowledges its strength:
in all political trials conducted by the judges of the successor regime, the
judges are in a certain sense the victors judges.33 He focuses on the different
attitudes that were taken to the trial by the USSR delegation and by the
Americans at the London conference. The Russians wanted to set up the
tribunal in such a way as to guarantee that all the defendants would be
convicted and executed. Jackson preferred an approach based on a separation
of power between the tribunal and the prosecution, and on the independence
of judges who would be in a position to evaluate the evidence presented and
to come to a verdict based upon it.
Kirchheimer argues that in reality there was less of a difference between
the cynical realism of the USSR and the American approach than there
appeared to be. Occurring in the wake of a National Socialist defeat, the trial
could not but take the defeat of National Socialist doctrine and practice as its
starting point.34 There was not a contradiction between the existence of an
independent judicial tribunal on the one hand and the manifestation of power
on the other; rather, the manifestation of the power of the victors was expressed
in the form of an independent judicial tribunal. The trial was not presided
over by God, judging the Nazis from above and outside the world. It was
organised by those forces that had defeated Nazism militarily and
ideologically. It was organised by the victors over Nazism in the name of a set
of values that it held to be superior to those of Nazism, namely, human rights.
This leads to the second of the realist critiques put forward by the defendants
at Nuremberg: the tu quoque (you likewise) argument. They attempted to
normalise what they had done, arguing that there was nothing special about
the inhumanities committed by the Nazis in relation to the whole history of
mans inhumanity to man and in particular in relation to crimes carried out
by the four powers. How could the two old imperialist powers, the regime
that had perpetrated the Stalinist purges and the one that had just exploded
two atomic bombs in densely populated cities, sit in judgment over the Nazis
under the banner of human rights?
33 Kirchheimer, 1969, p 332.

45
46

In a wider sense, the tu quoque argument could be levelled against any type of
terrestrial justice. Only the archangel descending on judgment day would be exempt
from the reproach that blame and praise have not been distributed according to
everyones due desert.35
Kirchheimer contends that this is an argument addressed to the public at large,

and to future historians, rather than a serious defence in a court which, of
course, in general refused to hear it. The tu quoque argument was a stronger
argument against the Nuremberg process, whose charter disqualified in
advance the examination of crimes committed by anyone other than the Nazis,
than it is against more recent tribunals such as the International Criminal
Tribunal for the former Yugoslavia (ICTY). While the ICTYs establishment
by the Security Council still protects the great powers, who may use their
vetoes, it has no such limitations in the body of law with which it operates.
Serbs, Croatians and Bosnians may all be charged with crimes. The tu quoque
argument becomes less relevant as cosmopolitan law gains strength and
independence; the success of cosmopolitan law may be measured by the
progress it makes in defeating the tu quoque argument, rather than, as at
Nuremberg, simply ignoring it.
The realist critique also challenged the legality of the process: there were
new laws but no legislature, and the laws under which defendants were
tried had not existed at the time of the crimes. The defendants also argued
that they should not be made to take responsibility as individuals for offences
that were carried out by the state and were legally authorised by it. Kirchheimer
argues in response to this defence that such acts as making policies to select
and kill individuals on the basis of their racial characteristics:
[do] not give such enactments the dignity of law. It is the negation of the purpose
of law, which even in the form of the shoddiest enactment must still offer a password:
the ordering of human relations The presumed validity of an enactment does
not necessarily exculpate those who might consider invocation of the statute a
foolproof defense mechanism. An enactment in itself is a mere cipher, whose real
import and weightare determined by those who fashioned it or learned to mould
it in constant practice.36
The third contemporary approach that Fine examines is Heideggers argument

against humanism. Humanity itself was not innocent; many of the greatest
atrocities had been carried out in the name of humanity against those
designated to be inhuman or bearers of inhuman culture. Crimes against
humanity were committed by Germans; crimes for humanity were committed
by their accusers. Michel Foucault has persuasively charted the inhumanities
committed in the name of humanism. For example, the development of the
modern prison system was intended to replace ancient and inhuman corporal
punishments with modern, reasonable and efficient methods designed to
rehabilitate the souls of criminals: Foucault exposes the horrors and the antihuman nature of the modern humanistic approaches.37 Similarly, the terrors
of the French Revolution, and of Stalins communism, were committed in the
36 Kirchheimer, 1969, p 328. Franz Neumann also argues persuasively that there was nothing which could be
rightfully characterised as law in Nazi Germany, and Lon Fuller argues that since Nazi enactments were
retroactive and secret they could not be understood as laws: Neumann, 1963; Fuller, 1969.
37 Foucault, 1991.
name of humanity, against those sections of society that were held not to
recognise the existence of any fundamental human community. Heidegger
was against individuals being held criminally responsible at Nuremberg,
arguing that the legal subject was a fiction that forgets the historicality and
finite freedom of human existence and the homelessness of modern human
beings. He argued, and Zygmunt Bauman was later much influenced by his
argument, that the events of the Holocaust were the results of such a profound
malady of modern society that any attempt to scapegoat a few individuals in
a legal process would constitute nothing more than empty hypocrisy.
Fine argues, in summary, that the originality and strength of Arendts
understanding of the Nuremberg process was in the way she recognised the
limited justification of each of these understandings of the Nuremberg
processhumanist, realist and post-humanistand wove them into a more
critical and grounded cosmopolitan argument. What gives her discussions
their force is the recognition of the equivocation of law and her readiness to
embrace legal remedy in the knowledge of its risks.38
At the time of Nuremberg, Arendt wrote to Jaspers that the Nazi crimes
were such that no law could prosecute them, that no mundane criminal process
could achieve any sort of justice, or punish the perpetrators with anything
but an inadequate sentence. [T]his guilt, in contrast to all criminal guilt,
oversteps and shatters any and all legal systems. That is the reason why the
Nazis at Nuremberg are so smug.39 Yet 15 years later, in relation to the
Eichmann trial, it was Arendt who defended the trial against Jaspers
scepticism. For her, that trial represented missed opportunities to push the
bounds of cosmopolitan law, to institute an international court and to bolster
the offence of crimes against humanity. Nevertheless, she defended the right
of the Israelis to kidnap the indicted Nuremberg war criminal Eichmann from
a state with a bad record for extradition, and to put him on trial. This action
served the cause of justice, resulted in the punishment of Eichmann, gave
many victims their day in court, and allowed the story of the Holocaust to be
retold in an authoritative way to a new generation. Throughout her work,
Arendt is aware both of the importance of the cosmopolitan project of
international criminal law and of the many problems and shortcomings of its
actuality. She wrestles with the perplexities and contradictions. She avoids
what Fine40 refers to as cosmopolitan utopianism as well as realist cynicism
while engaging positively with the question of crimes against humanity
prosecutions.41
38
39
40
41
Fine, 2000.
Arendt and Jaspers, 1992.
Fine, 2000.
In a process which ran parallel to the Nuremberg tribunals, Allied military commissions condemned 920
Japanese to death and sentenced to prison terms 3,000 others who had been found guilty of crimes during
the Second World War. The International Military Tribunal sat in Tokyo from 1946 to 1948, trying the 25
most senior Japanese defendants. The International Military Tribunal for the Far East (IMTFE) was set up
by a special proclamation of General MacArthur, Supreme Commander for the Allied Powers in the
Pacific, with a charter similar to that for the Nuremberg tribunal. One important difference was that only
persons charged with crimes against peace could stand before the tribunal; all others were to be tried by
national or other courts. The Emperor of Japan, Hirohito, was not charged with any crimes. This seems to
have been simply a political decision made by the Americans; they wanted Hirohito to remain as Emperor
in their newly established regime. Political considerations, and the consolidation of a friendly and antiRussian regime, took precedence over cosmopolitan law: Piccigallo, 1979.
47
48
During the preparations for the main trial at Nuremberg, the Russians had
specifically wanted the inclusion of a charge relating to the massacre of Polish
officers in the Katyn forest. However, the Americans found evidence showing
that it was the Russians themselves who had committed the massacre. The
scandal was hushed up by the court.42 This incident, however, illustrates the
fact that the Cold War was, during the trials, rapidly beginning to freeze.
There had been a period of about a year when the interests of all the great
powers had converged around the prosecution of the Nazis. This remarkable
period, however, was short-lived. The struggle between the USSR and the
USA for global hegemony began to take precedence over the establishment of
a global legal order, and co-operation in the name of justice quickly crumbled.
The Cold War saw the emphatic re-emergence of particular interest as against
cosmopolitan order. The global bipolar struggle was everything. Both sides
held that victory in the global ideological and military struggle was the
prerequisite for any kind of justice.
During the American war in Vietnam, there was little question of any kind
of jurisdiction over crimes committed by combatants, but there was one notable
exception. A military court-martial tribunal found William L Calley guilty in
April 1971 of the murder of at least 22 Vietnamese civilians at My Lai on 16
March 1968. Between 8 am and noon on that day, 504 non-combatant
inhabitants of My Lai, everyone who was there, were killed by the American
soldiers of Charlie Company.43 Calley was, even before My Lai, a sadistic
killer. During a previous assault on a village, he had thrown a defenceless old
man down a well and shot him.44 At My Lai, he saw a baby crawling away
from a ditch that was already filled with dead and dying villagers; he seized
the child by the leg, threw it back into the pit, and shot it.45 Nobody else was
ever held legally responsible for the massacre: no other killers, no one higher
up the chain of command. No one else was found guilty of any war crime
during the entire Vietnam War. Calley was sentenced to life imprisonment
with hard labour. He served his sentence under comfortable conditions, and
was released on parole in 1974 by Judge Robert Elliott, who said: war is war,
and it is not unusual for innocent civilians such as the My Lai victims to be
killed.46
While there was a lack of official tribunals and legal accountability, it is
nevertheless true that during the Vietnam War one important weapon in the
armoury of the anti-war movement was the appeal to international law. The
war could legitimately be characterised as a crime against peace; there was
much behaviour that could be characterised as war crimes and crimes against
humanity. Bertrand Russell wrote a book entitled War Crimes in Vietnam,47 for
example, and Jean-Paul Sartre published a pamphlet48 with the same name,
arguing that the American war in Vietnam constituted genocide. In May 1967
in Stockholm, and November 1967 in Roskilde, Denmark, a tribunal was
organised to investigate whether the USA was guilty of crimes under
42
43
44
45
46
47
48
Smith, 1977, p 104.

Anderson, 1998, p 1.
Bilton and Sim, 1992, p 1.
Russell, 1967.
Sartre, 1970.
international law in Vietnam. While this tribunal had no official legitimacy, it

was supported by many well known individuals in the anti-war movement.
Even at a time when the official international structures of cosmopolitan criminal
law were non-existent, ideas of law and justice still constituted an element in
the campaign against the Vietnam War. Cosmopolitan criminal law had an
existence even outside official structures. The characterisation of acts in terms
of their illegality or criminality can be a powerful moral and political weapon.
The Genocide Convention and the problems of defining

genocide
The Genocide Convention (1948) was agreed in order to add further clarity to
cosmopolitan law by defining genocide as a specific crime. Article II defines
the following as genocide:
Any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial, or religious group, as such:
(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.49
There is much dispute about the interpretation and the validity of this definition.
Some writers, for example Elie Wiesel and Steven Katz,50 have emphasised the
uniqueness of the Nazi genocide of the Jews. They propose a narrow and specific
definition of genocide, or a narrow and specific interpretation of the definition
which includes only the Holocaust and excludes all other cases of mass killings.
Alain Destexhe51 puts forward a narrow definition of genocide such that there
have only ever been three: the genocide of the Armenians in Turkey in 1915, of
the Jews and Gypsies in 194245, and of the Tutsis by the Hutus in 1994. At the
other end of the spectrum, there are social scientists who define genocide in a
much broader and more inclusive way,52 and who have established an academic
discipline that they call genocide studies.
Steven Katz says that, in this debate, writers must be careful not to claim for
[their] own collective national catastrophe some pride of place,53 though it appears
that in this respect he is not himself excessively careful. He surveys a number of
instances of mass killing and shows why each one, with the exception of the
Holocaust, cannot be considered to be a real genocide. In the case of the destruction
of the native people of North and South America, he argues that even though
49 Compare with the Nuremberg definition of crimes against humanity: Murder, extermination, enslavement,
deportation and other inhumane acts committed against any civilian population, whether before or during
the war, or persecutions on political, racial or religious grounds in exception of or in connection with any
crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country
where perpetrated.
50 Katz, 1983. Auschwitz was a unique phenomenon, a unique event, like the revelation at Sanai. Wiesel in
Cargs, 1976, p 8.
51 Destexhe, 1995.
52 Eg Charny, 1994; Kuper, 1982; Fein, 1993.
53 Katz, 1983, p 296.
49
50
many millions were killed, and the death rate was about 40% of the population,
therewasnogenocidalideologyorintent.InthecaseofthekillingoftheArmenians
in Turkey in 1915, there was similarly no genocidal intent, but rather the killing
was the result of an over-zealous nationalism. The purpose was ethnic cleansing,
rather than killing. He makes a similar argument in the cases of the killing of the
Ibo in Nigeria and of the native Brazilians. The Gypsies were killed by the Nazis
but this did not constitute genocide:
The overall Nazi policy toward the Gypsies was different in kind from that toward
the Jews The Nazis did not ontologise the Gypsy into their metahistoric antithesis,
nor did they make the elimination of all Gypsies from history a primal part of
either their historic moral mission or their metaphysical mythos.54
Katz concludes: I believe enough evidence has been marshalled to suggest

that in and through the category of intention we can begin to perceive at
least one seminal individuating characteristic of the Holocaust.55
Alain Destexhe also stresses that intent is an important defining
characteristic. Raphal Lemkin, argues Destexhe, invented the word genocide
in 1944, referring to the destruction of a nation or of an ethnic group, implying
the existence of a co-ordinated plan, aimed at total extermination, to be put
into effect against individuals chosen as victims purely, simply and exclusively
because they are members of the target group. That means that they are not
targeted simply because they are held to be in the way, like the Muslims in
Bosnia or Kosovo, nor because they pose a threat, real or imagined, like the
political opponents of Stalin or Mao; nor because they live in a state that is
waging a war, like the inhabitants of Hiroshima. The point about the use of
the word genocide for Destexhe is that it describes a crime motivated purely
by racial, national or religious considerations and has nothing to do with
the conduct of the war. Genocide contains no seed of utility: people are killed
simply because they exist. It is a crime against the person as a person, against
the very humanity of the individual victim.56
Leo Kuper argues for a much wider definition because he is unhappy with
the use of motive as a defining criterion. The Genocide Convention defined
an act as genocide only when it is the killing of the ethnic group as such. This
introduced motive as a central consideration. At the time when the convention
was negotiated, the Russians insisted on the removal of the political motivation
as being inconsistent with a scientific definition of genocide.57 The British
insisted that intent was crucial, but motivation immaterial. The Venezuelans
proposed the inclusion of the words as such. This means that in order to
count as genocide in the terms of the convention, the motivation must be
proven to be purely non-utilitarian ethnic hatred. Kuper is critical of this
inclusion of motivation on the grounds that it allows a defence to the charge
of genocide. He gives two examples. The UN representative of Brazil, in reply
to a charge of genocide against Indians in the Amazon region, argued that
this could not be characterised as genocide since those carrying out the killing
did so only for economic gain.58 US army Chief of Staff, General Maxwell
54
55
56
57
58
Katz, 1983, p 308.

Katz, 1983, p 310.
Destexhe, 1995, p 4.
Destexhe, 1995, p 4.
Kuper, 1982, p 33.
Taylor, argued that the bombings of Hiroshima and Nagasaki did not constitute
genocide, as people were killed because they lived in enemy strongholds and
not because the Americans had the intention of killing them simply because
of their ethnicity.
Destexhe wants to keep the definition of genocide narrow in order to focus
attention on the most serious cases. He is worried about the dilution of the
term genocide, believing that a process of verbal inflation is diminishing its
power. When people campaign against a particular set of acts that they
consider evil, they often use the word genocide in order to highlight the
seriousness of their case. Racism against black people in the USA;59 the selling
of tobacco that causes millions to die of lung cancer; the abortion of millions
of foetuses; the refusal by governments to fund AIDS research sufficiently
all have been characterised as genocides.
The genocide studies scholars, on the other hand, want to keep the definition
broad in order to incorporate into their discipline all cases of mass killing:
[b]y genocide studies we mean attempts to expose, comprehend, and prevent
the phenomenon of genocidal killing as a subject in its own right and, ideally, in
comparative perspective.60
Helen Fein carried out a study of introductory sociology texts from 194777,
and showed that a minority of texts in all three decades defined and recognised
genocide; those in the middle decade (195767) were least likely to mention
genocide, while those published last (196877) were almost twice as likely to
recognise genocide as those in the decade after the Second World War.61 She
goes on to say that the beginning of professional social scientific interest in
genocide was in the 1970s, and that comparative research on genocide is
almost wholly generated by scholars educated in the USA and writing in
English.
These scholars reject the idea that the Holocaust was a profoundly unique
or holy event that defies analysis and understanding. They situate themselves
in a certain sociological and scientific methodological tradition that particularly
values comparative studies.
Michael Freeman62 formulates the rejection of the profound uniqueness
argument by making a critique of Elie Wiesels religious understanding of the
Shoah and of his insistence on the primacy of survivor testimony over social
scientific analysis. He quotes Wiesels three reasons for holding that the
Holocaust cannot be wholly explicable:
(1) The events obeyed no law and no law can be derived from them; (2) complete
understanding would require identification with all the victims and all the
executioners, which is impossible; (3) no language is sufficient to communicate the
Holocaust experience; the language of science, in particular, fails before the suffering
of the victims.
His answers to Wiesel are, first, that contemporary social scientific forms of
understanding are more sophisticated and flexible than simply the search for
laws of social behaviour; understanding can be derived from analysis, and
59
60
61
62
Weisbord, 1975.
Markusen and Kopf, 1995, p 5.
Fein, 1993, p 5.
Freeman, 1991, p 187.
51
52
that understanding does not need to aspire to a totalising quest for absolute
knowledge. Secondly, while empathy is necessary for an analysis of genocide, it
is also necessary to go beyond the subjective consciousness of victims and
perpetrators, and to investigate the social structures in which they find themselves
and which help to make them who they are, as well as simply focusing on their
agency. Thirdly, the problem of language is a general problem about the
representation of experience, which may be particularly acute in the case of the
Holocaust; but it would be a greater error for social science to ignore this challenge
than for it to attempt, sensitively and carefully, to confront it. Freeman also argues
that, since Wiesel considers the study of the Holocaust to be important in order to
prevent possible future genocides, then it is clear that past and future must have
important elements in common. The Holocaust may be unique in certain ways,
as is any event, but it also has features in common with other genocides, and
other possible future genocides.
Markusen and Kopf similarly criticise those whom they call, following Alan
Rosenberg and Evelyn Silverman,63 Holocaust absolutists, who hold that the
Holocaust was a profoundly unique event, outside history and outside the
possibility of representation or comparison. They prefer to call themselves
contextualists, which means that they see the Holocaust in its historical
context and that they assert the validity of comparison.
It is the rejection of the idea of the uniqueness of the Holocaust, and the
insistence that it is an event within, not outside, history, that allows genocide
studies to broaden its focus from the single event and look also at similar
social phenomena. Leo Kuper, one of the founders of the discipline, says that
he has been driven to this terrain by the realisation that genocide is all too
common in our own day, and that the organisation charged with its prevention
and punishment, the United Nations (UN), responds with indifference, if not
with condonation.64 A central concern, then, of the emerging discipline is not
the uniqueness, but the ordinariness of genocide. And, as Bauman argues,
sociologys traditional neglect of the field as a pathological condition of society,
rather than as an aspect of societys normal functioning, becomes untenable.
Israel W Charny argues as follows:
What is needed, I would argue, is a generic definition of genocide that does not
exclude or commit to indifference any case of mass murder of any human beings,
of whatever racial, national, ethnic, biological, cultural, religious, and political
definitions, or of totally mixed groupings of any and all of the above.
I propose that whenever large numbers of unarmed human beings are put to death
at the hands of their fellow human beings, we are talking about genocide.65
Frank Chalk argues that social scientists have a different set of objectives to
those of international lawyers. Lawyers are concerned with successful
prosecution, while sociologists are concerned with:
outlining the boundaries of a set of cases which they want to study for the
purpose of discovering their common elements and analysing the processes that
brought them about. Perhaps these differences in objectives account for the
differences in breadth and focus which one finds in the several definitions of
63 Rosenberg and Silverman, 1992.
64 Kuper, 1982, p 9.
65 Charny, 1994, p 74.

genocide that have appeared since the concept was first elaborated by Raphal
Lemkin in 1944.66
Assigning a high value to comparative studies is characteristic of genocide

studies. Their methodology is fundamentally an empiricist one that flows from
an empiricist tradition in American social science. It is concerned to distance
itself methodologically from mystical or impressionistic approaches to the
subject: from those approaches that assert the dominance of experience over
analysis; from those that argue that the only possible response to genocide is
silence; from those that cannot go beyond horror and moral indignation; and
from those that seek to make genocides into the property of one or other group,
to use them for political ends, and which seek to establish the place of one
group or other at the top of the hierarchy of the oppressed. Focus on comparative
study is an attempt to replace these approaches with dispassionate scientific
investigation. It wishes to appear respectably scientific and scholarly.
The work by Eric Markusen and David Kopf, 67 who undertake a
comparative study of the Holocaust and Allied strategic bombing in the Second
World War, is typical of genocide studies. They compare two common types
of contemporary governmental mass killing, and they find that they have
many common features: enough, indeed, to allow them to call strategic
bombing genocidal. This enables them to highlight the unacceptability of
strategic bombing, a form of mass killing that is often regarded as a necessary
evil and therefore defensible, by arguing that it is little different from genocide,
which is universally condemned.
The comparison between the Holocaust and strategic bombing consists of
discovering a number of traits that Markusen and Kopf argue are common to
the two. They argue that important common characteristics are as follows:
(a) The dehumanisation of the otherby the mass media, governments,
the elite, the educational institutions, the killers.
(b) The role of the healing-killing paradox. This means that people
sometimes kill in the belief that they are protecting themselves, or
their group.
(c) Scientific rationalisation; bureaucratic distancing.
(d) Technical distancing.
(e) Organisational loyalty. Air force decision makers are loyal to the air
force, Nazi killers are loyal to their particular police outfits.
In investigating whether strategic bombing is genocidal, they use Helen Feins
criteria:68
(a) There is a sustained attack, or continuity of attacks, by the perpetrator
to physically destroy group members.
(b) The perpetrator is a collective or organised actor or a commander of
organised actors.
(c) Victims are selected because they are members of a collectivity.
(d) The victims are defenceless, or are killed regardless of whether they
surrendered or resisted.
66 Chalk, 1994, p 46.
67 Markusen and Kopf, 1995.
68 Markusen and Kopf, 1995; Fein, 1993.
53
54
(e) The destruction of group members is undertaken with intent to kill,

and murder is sanctioned by the perpetrators.
Markusen and Kopf find that, since all these criteria are present, strategic
bombing is, indeed, genocidal. They do, however, quote Fein, who argues
that [t]o equate Hiroshima and Auschwitz belies the distinctive end and
design of each plan and their distinctive effects.69 She argues, further, that
they fail to consider whether the scientists and planners involved in nuclear
strategising are actually value free, unthinking about the ends of their acts,
or whether they take responsibility for involvement in the nuclear project
as some doin order to prevent war. Thus, labelling their acts genocidal
disregards the evidence that it is not their indifference to killing but their
estimation of the risks of avoiding killing that is the issue separating antinuclear activists and nuclear engineers.
Both Markusen and Kopfs thesis and Feins critique can be seen as
illuminating examples of the methodology of genocide studies. The discovery
and use of checklists of traits that are common to genocides can be seen to be
problematic. The lists of traits or characteristics that are produced by genocide
studies are in fact far from straightforward and require deeper analysis. Also,
they rely heavily on definitions that are inevitably, at some level, arbitrary.
This is, perhaps, why so much of the work produced by these theorists is
concerned with analysis of, and argument for, certain ways of defining key
terms, such as genocide itself, which even within the discipline is much disputed.
There is also much creation of new terms, such as Leo Kupers genocidal
massacre,70 Rudolph Rummels democide,71 sociocide, linguicide, and
cultural genocide.72 Fein herself is critical of these last three inventions, arguing
that genocide becomes not only unbounded but banal, an everyday
occurrence.73 But the reason why definition comes to be such a focus for
controversy is not only that the term genocide contains great moral weight,
and therefore great temptation to highlight this or that form of repression; it is
also because the empiricist method of genocide studies relies on the definition
and discovery of key characteristics, and seems unwilling to delve deeper inside
the social phenomena themselves, an undertaking that would risk attracting a
charge of unscholarly or unscientific investigation. The strictly scientific
methodology always seems to be traceable back to an arbitrary definition.
Referring back to Markusen and Kopfs list of common characteristics
between strategic bombing and the Holocaust, it is clear that the question of
dehumanisation, for example, is complex, and requires deeper investigation.
Dehumanisation is often posited as one of the key features of genocide.74 And
certainly human beings are often portrayed by genocidal formations as
cockroaches, rats, or germs that need to be killed for the health of the greater
society. Yet on the other hand, genocide, and specifically sadistic treatment
and killing of victims, is not committed against non-humans but, emphatically,
against human beings; human beings who are seen as threatening, potentially
69
70
71
72
73
74
Markusen and Kopf, 1995.

Kuper, 1982, p 10.
Fein, 1993, p 75.
Fein, 1993, p 17.
Fein, 1993, p 17.
Eg Freeman, 1991, p 190.
powerful, worthy of hatred and deserving of the most terrible punishment.

Dehumanisation cannot be simply reduced to an unproblematic trait which
can then be used as a measuring stick in some statistical analysis. Also, while
they may have had certain aspects in common, the quality of Nazi racism
against Jews was surely different from that of the Allied war machines against
German and Japanese people; to package both of these distinct forms of antihuman ideology as dehumanisation is surely to oversimplify and gloss over
exactly the complexities that ought to be under investigation.
The healing-killing paradox is another example of a term invented in order
to show a common strand that runs throughout different genocides. It is
grandly named, but the point is surely banal: often when people kill, they
think, or they say, that they are killing in order to heal. It is just another way of
saying that when people kill, they believe they have good justification to do
so, that it is some form of self-defence.
Scientific rationalisation, bureaucratic distancing and technological
distancing are also held to be traits characteristic of genocide. The genocide
studies scholars appropriate these simple traits from Baumans work, as if
that work just added extra empirical knowledge to their own. The fact that
Baumans work is a thoroughgoing and vigorous critique of their whole
methodology seems to be entirely unimportant. In any case, often genocide is
carried out with very little bureaucratic or technical distancing; the
Einsatzgruppen, for example, or the Rwandese machete gnocidaires, acted
without the need for any of Baumans moral sleeping pills.
Feins distinction between nuclear weapon designers and gnocidaires is
that the former believe they are acting to minimise killing, whereas the latter
are indifferent to killing. But behind the faade of hard scientific
methodology lurks the arbitrariness of hidden value judgment. Does not the
healing-killing paradox tell us that all gnocidaires also believe that they are
acting to minimise harm?
All of these debates about the uniqueness of the Holocaust and the
definition of genocide, as Norman Geras75 has argued, leave one feeling
uncomfortable. The heat of the debate feels disrespectful to the victims. There
is a suspicion that there are hidden agendas, and that the participants in the
debate are engaged in competition to define some mass killings as more
profound or important than others. Norman Finkelstein76 argues that some of
the insistence on the uniqueness of the Holocaust is explicable for reasons
connected with gathering political support for Israel. Yet on the other hand,
some of the arguments against the uniqueness of the Holocaust downplay
the enormity of this particular, world-changing event.
The arguments about intent are all, in the end, a little arbitrary. There is no
pure genocide, unsullied by the pursuit of money, land, political advantage;
and there is also no purely utilitarian mass killing, untainted by a racist
ideology that defines the worth of the lives of some as being less than others.
The tribunals for the former Yugoslavia and for Rwanda have both made
convictions for genocide. They seem less concerned about the niceties of
definition, and seem to be happy to convict, for example, Radislav Kristic,77
75 Geras, 1998.
76 Finkelstein, 2000.
77 Prosecutor v Kristic.
55
56
without profound investigations as to the intent of the Bosnian Serbs, or as to

the particular ratio of self-interest to exterminatory racism that motivated the
killing and ethnic cleansing. The tribunals seem to be able to operate effectively
enough with the existing definitions of genocide and crimes against humanity,
even if they are theoretically unsatisfactory in some respects.
These genocide studies scholars are disabled by their self-imposed
methodological restrictions. They fail to rid their analysis of value judgments,
only succeeding in hiding such judgments behind a faade of respectable
objectivity. They are trying to understand and analyse the social reality of
genocide but they do not pay enough attention to the ways in which, as it
were, the social reality understands itself. The existing social phenomena of
genocide are being made sense of and given meaning by the existing social
phenomena of the institutions, body of law, and ideas of cosmopolitan criminal
legal processes. The abstract understanding that the genocide studies scholars
impose on the world is too far removed from the structures that the world
develops by itself to adequately address the phenomena in question. The
existence of the crimes against humanity charge at Nuremberg and its general
acceptance as law is more radical than any moment of Utopian criticism.
Chapter Four
Peace, security and justice
in the former Yugoslavia
In Chapters Four and Five, I look at three different approaches taken by the
international community towards the conflict in the former Yugoslavia. In
Srebrenica, security and justice were subordinated to a vain quest for peace
and the avoidance of conflict. The wish to avoid at all costs any disruption of
the peace ended in disaster for those who had understood that they were
being promised life-saving help by the UN. In Kosovo, the international
community in the form of the North Atlantic Treaty Organisation (NATO)
focused on preventing and reversing the ethnic cleansing, yet with such a
blunt use of force that peace, security and justice all suffered. The priority
given by the intervening powers to avoiding putting their own soldiers at
risk had not changed since Srebrenica, but the policy that flowed from it took
a very different form. The establishment of the International Criminal Tribunal
for the former Yugoslavia (ICTY) focused on justice, yet it was established
under the Security Councils powers to work for peace and security. While
the ICTY has been denounced from many different angles, I argue that its
most important achievement is its existence; it is an empirical fact.
Cosmopolitan criminal law exists, and in those three courtrooms in The Hague,
as well as in Arusha, it conducts the daily business of putting people on trial
for crimes against humanity and genocide. In Chapter Five, I look at two
cases at the ICTY in detail.
Peace before justice: Srebrenica and Dayton

[T]he so called safe area has become the most unsafe place in the world. (Alija
Izetbegovic, referring to Gorazde.)1
In July 1995, a crime against humanity was committed by Bosnian Serb forces
against the Muslims who lived in Srebrenica or who had fled there for safety.
This crime was committed under the noses of UN forces, who did little to
prevent it.
By the end of May 1992, Serb forces had occupied and ethnically cleansed
a large part of eastern and western Bosnia, and the front line that was
established then was essentially stable until the summer of 1995. There were,
however, Bosnian Muslim enclaves that they had failed to defeat: Bihac in the
west, and Gorazde, Zepa, and Srebrenica in the east. Refugees fled to these
enclaves, swelling their original populations.
Between May 1992 and January 1993, Bosniak forces from Srebrenica
attacked and destroyed Serb villages near the town. Serb forces responded
with a counter-offensive, capturing some villages and severing the link
between Srebrenica and Zepa.2 The Bosnian Government put pressure on the
1
2
OShea, 1998, p 46.

Prosecutor v Kristic, para 14.
58
international community and UNPROFOR3 to provide convoys of food and

medical supplies to the civilians in Srebrenica. Two weeks after the first convoy
had successfully arrived, the Bosnian army launched an offensive against the
Serbs in Bratunac. The Serbs refused to allow further aid through, arguing
that it would help the military capability of the Bosnian army. The Serbian
offensive against the enclaves intensified, and by February 1993 the situation
in Srebrenica was becoming desperate. A UNHCR report of 19 February
described the situation in Srebrenica:
There is no food such as we know it. They have not had real food for months. They
are surviving on the chaff from wheat and roots from trees. Every day people are
dying of hunger and exhaustion. The medical situation could not be more critical.
People who are wounded are taken to the hospital where they die from simple
injuries because of the lack of medical supplies. They have problems of epidemic
proportion with scabies and lice.4
When General Morillon of UNPROFOR visited the besieged town, the

inhabitants organised a protest by the women and children to prevent him
from leaving. They demanded protection. Morillon jumped on top of his
armoured car and addressed the crowd: We will not abandon you,5 The world
saw this pledge on their evening news bulletins.
Following the 1991 Gulf War, a safe haven had been declared by the
victorious coalition in order to protect the Kurds in northern Iraq from the
Saddam regime. The relative success of the policy had been dependent on
three factors that did not apply in Bosnia. First, the safe haven was imposed
by a coalition that had just dealt a crushing military defeat to the Iraqi army
in Kuwait, so there was no need to negotiate with the Iraqi regime, nor to
obtain its consent, nor to appear neutral between it and the Kurds. Secondly,
the safe haven was large, and it bordered one of the allies enforcing it, so
forces could easily be deployed and withdrawn. Thirdly, the terrain was
relatively open, making air cover easier.6
By March 1993, Srebrenica was in danger of imminent defeat. On 16 April
1993, the Security Council passed a resolution that designated the town of
Srebrenica and its surrounding area as a safe area, but the resolution was
half-hearted and vague. Britain, France and Spain, the countries whose troops
were most likely to be used in any action guaranteeing safety, were nervous:
They made sure that Srebrenica was turned into a safe area, as opposed to a safe
haven The difference under international law was that safe havens need not
depend on consent of the warring parries and could be enforced, while safe areas
were based on consent.7
It seems, however, that the world did not really notice this nice distinction. It
was understood that the UN was guaranteeing the safety of civilians who
lived within these enclaves. But the Security Council had only placed a duty
upon the Bosniaks and the Serbs to keep these areas safe; UNPROFORs role
would be to monitor the humanitarian situation.
3
4
5
6
7
United Nations Protection Force.

Honig, 1996, p 82.
A Bosnian betrayal, Dispatches, Channel 4, 1996; Prosecutor v Kristic, para 15.
Honig, 1996, p 99.
Honig, 1996, p 104.
Peace, security and justicein the former Yugoslavia
The UN was always in a contradictory position. No country was willing to

commit soldiers capable of fighting against those who were doing the ethnic
cleansing. In the absence of such a force, all international intervention had to
gain the consent of all sides in the conflict, since everyone possessed a de facto
veto on their activities. There was an arms embargo on all sides that helped
the Serbs since they already had access to the arms of the JNA.8
Since Serb consent had to be won for any policy, a condition of the granting
of safe areas was to be the disarming of Muslim forces in the name of creating
a demilitarised zone. Serb forces were unwilling to allow the UN to transport
supplies to the enclaves if they were being used as bases for the Bosnian army.
On 17 April, 143 lightly armed Canadian soldiers entered Srebrenica. They
were not mistaken by the desperate inhabitants for liberators. The Canadians
were in a difficult position. They could not defend the town against a serious
attack. They were supposed to disarm the Muslims; but if at some time in the
future they were forced to withdraw, this would leave the Muslims even more
defenceless. However, the Serbs withdrew one and a half kilometres and stopped
shelling. Srebrenica appeared to have been saved, and the worlds press looked
elsewhere for its stories.
On 3 March 1994, 570 Dutch troops relieved the Canadians in Srebrenica.
Most of their ammunition had been delayed when the ship carrying it to
Croatia had broken down; by the time it arrived, the Serbs declared that the
Dutch already had enough supplies, and declined to let it through. Convoys
of fuel and food were also often delayed by the Serbs. Following a NATO air
raid in November 1994, the Serbs took 70 Dutch soldiers hostage; General
Mladic came to visit them, arriving in a Mercedes jeep that the Serbs had
previously confiscated from a Dutch convoy. They were eventually released.
During 1995, the Serbs continued systematically to undermine the operational
capability of the Dutch force, particularly by restricting food and fuel supplies.
Morale amongst the Dutch soldiers was poor.
In March 1995, Radovan Karadzic issued a directive to his forces in the
Srebrenica area, ordering them to create an unbearable situation of total
insecurity with no hope of further survival or life for the inhabitants of
Srebrenica.9 The Serb forces were also ordered to:
reduce and limit the logistics support of UNPROFOR to the enclaves and the
supply of material resources to the Muslim population, making them dependent
on our good will while at the same time avoiding condemnation by the international
community and international public opinion.10
The final Serb attack on the safe area of Srebrenica began on Tuesday 6 July
1995. There was much small arms fire and shelling recorded by the Dutch
from their observation posts that surrounded the town. One observation post
in particular came under attack, and the soldiers inside it surrendered to the
Serbs, who eventually allowed them to go back towards their comrades in
the town in their armoured car. On their way back, they encountered a Muslim
roadblock through which they drove without stopping. One soldier, Raviv
van Renssen, was shot in the head and killed. A second observation post was
attacked and overwhelmed by the Serb forces. The Serbs gave them a choice:
8 Yugoslav National Army.
9 Prosecutor v Kristic, para 28.
59
60
they could either make their way back to their unit in Srebrenica or be taken
prisoner. The soldiers opted to be taken prisoner. The Dutch Lieutenant Colonel
Karremans did not yet understand that Srebrenica was in danger of falling to
the Serb forces. By Saturday, the Bosnian army was decisively outgunned;
they wanted NATO air strikes against Serb forces. Their strategy was to
manoeuvre the Dutch into the line of fire, so that they would be forced to call
for air support. They therefore made it difficult for the Dutch to withdraw
from their observation posts into the town. But the Dutch soldiers preferred
to surrender to the Serbs, who treated them well, than to remain in their
positions.
At 10 pm on Sunday, the most senior UN Commander in the former
Yugoslavia, French Lieutenant General Bernard Janvier, ordered the Dutch
battalion to position their armoured cars around Srebrenica in order to stop
the Serb advance. From Zagreb, Janvier and Yasushi Akashi, the UN Secretary
Generals special representative, sent an ultimatum to the Serbs: they were to
withdraw from Srebrenica and release the captured Dutch soldiers, or else air
support would be employed.
On Monday morning, there was increased shelling of the town, both of the
Muslim civilians and refugees and of the Dutch soldiers, followed by a relative
lull. By early evening, Serb soldiers were lining up above Srebrenica ready to
advance into the town. Muslim civilians began to flee from the town towards
the north. At 6.30 pm, the Serbs began to advance. Many Muslim civilians
streamed towards the Dutch compound at Potocari, just outside the town, for
protection, and broke into it. The Bosnian army was trying to stop civilians
from withdrawing from the town to the base; they still wanted to force the
Dutch to fight, and to call for air support. Most of the refugees remained in
Srebrenica during the night of 1011 July.
The Dutch requested air support at 7 pm during the Serb attack. Following
much discussion and delay, Janvier promised that NATO would be ready to
attack from the air by 6 am. The Dutch soldiers were informed that NATO
had given an ultimatum to the Serbs that if they did not withdraw they would
come under heavy air attack first thing in the morning. Janvier and Akashi,
however, had only agreed to the air attack if the Dutch troops were attacked
first.
Karremans announced to the Bosnian army and the civilian town council
that the Serbs had been warned to withdraw on the threat of NATO air strikes.
The Bosnians did not trust Karremans. Major Fahrudin Salihovic, of the
Bosnian army, twice asked Karremans if he could guarantee that the attack
would take place. Karremans twice answered dont shoot the piano player,
which was translated by the interpreter as dont trouble the bringer of good
tidings.
NATO aircraft were in the air from 6 am, ready to attack. All in Srebrenica
waited for the attack. UNPROFOR commanders were waiting to be contacted
by the Dutch if they were being attacked by the Serbs.
The NATO aircraft, which had been airborne since 6 am, were forced to
return to their base in Italy by 11.30 am. The Serb forces were made aware of
this from radar bases in Serbia. Shortly after 11 am, the Serb attack resumed.
The Dutch resumed the evacuation of refugees to their base. There were some
limited NATO air attacks that afternoon. The Serbs issued an ultimatum of
their own. If the air attacks were not stopped, the captured Dutch soldiers
would be killed and the refugees and Dutch battalion would be shelled. The
Dutch Government, Akashi and UNPROFOR quickly halted the air attacks.
The Dutch withdrew to their base, and Karremans opened ceasefire
negotiations with the Serb forces.
By the evening of 11 July, there were around 25,000 Muslim refugees, mostly
women and children, crowded into the Dutch base. The highly organised
and pre-planned Serb deportation operation began. Ratko Mladic himself
was in Srebrenica on 11 July, with a television camera crew, to organise the
cleansing of the town in order to make, as he told the cameras, a present to
the Serbian nation. His meeting with Karremans was filmed; Karremans raised
a glass to toast the Serb victory. He was ordered by Mladic to return with
representatives of the Muslim refugees in order to organise the deportations.
Conditions in and around the Dutch base were bad. At the trial at the ICTY
of Radislav Kristic, the Chief of Staff of the Drina corps of the Bosnian Serb
army, a resident of Srebrenica described the scene:
The baby had its pram, and we left our belongings in the pram or simply lay down
on the ground As we sat there, snipers would fire every now and then, and all
this throng would then move to one side or the other, screaming.11
Above them was the village of Pecista where the Serb soldiers were setting
houses on fire. At the sound of shelling, the whole crowd would simply dodge
to one side or the other with frightened cries, and that is how we spent the
night.12 The next day General Mladic appeared among the refugees with his
television crew and handed out sweets to the children.13 After the General
had left, Serb soldiers mingled with the crowd, harassing people and carrying
out some sporadic killings.14 That night, a Dutch medical orderly witnessed
two Serb soldiers raping a young woman. He testified that the rape was seen
by many refugees but that nobody could intervene because of the presence of
Serb soldiers.15 Other witnesses testified that they had seen women being
dragged away and that they could hear women screaming.16
The Serb forces organised buses to take the prisoners away. The Muslim
men were separated from the women. Witness DD at the Kristic trial recalled
seeing her young son for the last time as her family tried to board the buses:
one of their soldiers jumped out, and he spoke to my child. He told us to move to
the right side, and he told my son: young man, you should go to the left side. I
grabbed him by his hand And then I begged them, I pleaded with them. Why are
you taking him? He was born in 1981. But he repeated his order. And I held him so
hard, but he grabbed him And he took my sons hand, and he dragged him to the
left side. And he turned around, and then he told me, Mommy, please, can you get
that bag for me? Could you please get it for me? That was the last time I heard his
voice.17
The men were taken in buses towards Bratunac:
11
12
13
14
15
16
17

Prosecutor v Kristic, paras 4243.
61
62

Over the next few days, Dutch soldiers held hostage in Bratunac reported seeing a
number of buses filled with male prisoners. Most of the men sat with their heads
between their knees, and when they did look up their expressions were of terror.
The Dutch hostages also reported hearing frequent gunshots, particularly from the
direction of the football pitch.18
The women and children were deported to Kladanj, in Bosnian Government

territory. The Kristic judgment states that almost to a man, the thousands of
Bosnian Muslim prisoners captured, following the takeover of Srebrenica,
were executed.19 The judgment, drawing on evidence of missing persons lists,
on forensic evidence from mass graves, and on the testimony of UN observers,
states that:
[T]he Trial Chamber is satisfied that, in July 1995, following the takeover of
Srebrenica, Bosnian Serb forces executed several thousand Bosnian Muslim men.
The total number is likely to be within the range of 7,0008,000 men.20
Perhaps Srebrenica could have been saved if the Dutch battalion had been
willing to risk lives in a heroic stand; perhaps it could have been saved if
Janvier and Akashi had been more willing to offer air support; perhaps it
could have been saved if other states had offered more troops as the
Netherlands had done; but the UNs humiliation in Srebrenica was not an
isolated disaster. The UN stood by and watched the ethnic cleansing in
Srebrenica as it did in the rest of Bosnia; as it stood by and watched the genocide
in Rwanda. In both cases it had intelligence reports telling it what was likely
to happen, but it was unable or unwilling to protect people. In Rwanda, there
were television pictures showing thousands of desperate, frightened people
crowding around UN bases, and UN soldiers retreating, leaving those people
to their fate. Failure at Srebrenica, while not inevitable, mirrored failure
elsewhere. Most towns and villages in the Republica Srpska did not even
receive the token protection and the publicity that was afforded to Srebrenica,
but were cleansed unnoticed by the worlds news media.
Since the UN and the states who provide its forces were unwilling to risk
the lives of their soldiers in an operation to prevent it, ethnic cleansing was
carried out unhindered. There was much discussion at the time of the military
and political impossibility of putting an international force in Bosnia that was
capable of defending the victims of ethnic cleansing. There was also much
political obfuscation: politicians argued that there were evils on all sides in the
war. Douglas Hurd, the British Foreign Secretary, argued that it was impossible
to go into other peoples countries and run them: this was the lesson learned
from the British Empire. The Balkans were portrayed as an exotic and inherently
unstable place, and therefore, by implication, undeserving of help.
Given that a force to prevent ethnic cleansing was not forthcoming, the
role that the UN gave itself in Bosnia was one of observation and of attempting
to slow down and ameliorate the effects of ethnic cleansing. The UN forces
found themselves in the position of constantly having to negotiate at a number
of different levels. It was necessary to negotiate with leadership of the Bosnian
Serbs; it was also necessary to negotiate with each group of Chemiks at each
18 Honig, 1996, p 36.
roadblock. While the UN did have, as its trump card, the possibility of calling
in air support which was genuinely able to hurt the Serb forces, the Serbs
developed trump cards of their own. They were able to take UN soldiers as
hostages, and to threaten the increased shelling of civilians. The UN had no
answer to these threats.
A flavour of the kind of negotiations that were constantly taking place can
be obtained from a letter that Sir Michael Rose, the Commander of
UNPROFOR, sent to Mladic, the General in charge of Serbian ethnic cleansing
in Bosnia:21
Dear General,
Following your telephone conversation today with Brigadier General Brinkman
[General Roses Chief of Staff in Sarajevo], I would like to confirm that the UN
always regrets the need to use force in its peacekeeping mission. As Commander
B-H Command, I fully agree with you that we must in the future avoid all situations
which necessitate the use of force, whether it be applied from the ground or the air.
We can only do this through closer liaison and co-operation. As you know
UNPROFORis in B-H to help return this country to peace through peaceful means.
It is not part of our mission to impose any solution by force of arms. We are neither
mandated nor deployed for such a mission.
However, you will understand that everyone has the right of self-defence. If our troops
are deliberately engaged by fire, then we have to respond, no matter who it was that
opened fire. I am sure that as a soldier you will understand this point of view.
I believe that we must now return to the status quo ante in terms of the relationship
between UNPROFOR and the Bosnian Serb army. These are difficult times for
everyone, and we must not allow local tactical-level incidents to undermine the
road to peace. I urge you now to give orders accordingly.
Yours Sincerely,
Michael Rose.
Rose, the brave SAS hero, defended his stance in a letter to The Times on the
same day that they published his letter to Mladic. It isnt his fault, he argues;
he is merely carrying out the orders of his political masters:
The mandate, and therefore the mission, is principally one of peacekeeping, not
peace enforcement. The primary mission of the UN in Bosnia remains that of
assisting UNHCR and other humanitarian agencies to sustain the lives of millions
of suffering people in the midst of a war
It is not within the mandate of capability of UNPROFOR to impose a military
solution on the country. Injudicious use of force would take the mission across the
line which divides peace from war
If this happened, the enclaves of eastern Bosnia would fall, Sarajevo would return
to the horrors of the last two winters, and the future of the Croat Muslim Federation
would be put in doubt22
During late summer 1995, all sides in the conflict made significant gains. The
Serbs took and cleansed the safe areas of Bihac, Srebrenica, Zepa and Gorazde.
The Croats took the Krajina from the Serbs, and there committed one of the
biggest acts of ethnic cleansing of the whole war. The Bosnian army retook
21 (1994) The Times, 2 November, p 15.
22 (1994) The Times, 2 November, p 19.
63
64
some territory in central Bosnia. The Americans sensed that the new situation
could be transformed into some sort of equilibrium, and, for the first time in
the war, NATO launched a serious and sustained assault from the air against
Serb forces.
In November 1995, the Americans organised the final negotiations at an
air force base in Dayton, Ohio. They refused to deal with the indicted Mladic
and Karadzic, preferring to negotiate with the real Serbian leader, Slobodan
Milosevic. The Dayton deal was agreed on 12 November. On the one hand,
Milosevic came under severe American military and diplomatic pressure to
make the deal; on the other hand, the deal allowed the Serbs to keep the
territory of Bosnia that they had cleansed, and allowed Croatia to keep the
Krajina. Dayton ended the war, but on the basis of accepting the reality of the
ethnic cleansing of a large proportion of Bosnia.
There were cosmopolitan institutions and forces positioned in Srebrenica
and in the rest of Bosnia to which the victims of the ethnic cleansing and the
outside world looked to stop the killing and the terror. There were armies and
air forces; blue helmets and red crosses; diplomats, politicians and military
leaders; there were promises and guarantees. Yet in this case, the cosmopolitan
institutions were nothing more than a form that disguised an old fashioned
realist content. In this case, the radical critique of cosmopolitanism looks
persuasive. Cosmopolitanism was the form of appearance of the great powers.
The policies followed by them were based on little more than calculations of
self-interest; there was no political will to defend human rights, nor to stop or
reverse the huge injustices that were perpetrated against the Muslims of Bosnia.
The policies of the great powers were hidden behind a faade of cosmopolitan
forms and institutions. Even with the preponderance of the appearances and
forms of cosmopolitanism, there were no sparks or flashes of genuinely
cosmopolitan response. In Bosnia, what happened, contrary to appearances,
was ordinary power politics.
Justice before peace: Kosovo

By 1999, the policy of the West in relation to ethnic cleansing had changed.
Ten years earlier the limited autonomy that had been allowed to Kosovo by
the Yugoslavian constitution was swept away by the Serbs. Albanians were
dismissed from their jobs, denied education in their own language and forced
to live under a brutally racist regime. Kosovo became a de facto Serbian colony
where 90% of its populationwere ruled by less than 10%.23 Peaceful
opposition to the new regime had little effect and gained little outside support.
Following a massacre of more than 70 Albanians by Serb police in Drenica in
March 1998, the Kosovo Liberation Army (KLA) markedly increased its
membership and popular support.24 During the autumn of 1998 and the winter
of 1999, tension increased between the JNA, the ethnically Serb minority
population, the Kosovar Albanian majority, and the KLA.
International monitors were sent into Kosovo in October 1998. In January
1999, in the village of Racak, armed Serb police units killed 45 civilians.25
23 Demjaha, 2000, p 33.
24 Demjaha, 2000, p 34.
25 Demjaha, 2000, p 35.
Twenty-two unarmed men were shot in a gully; 23 others, including women,

were killed in the streets. It became clear to the monitors that the Serb strategy
was to intimidate civilians into fleeing strategically important areas. As well
as police units, the regular army was now involved.26 Reports of particular
incidents of ethnic cleansing coming out of Kosovo accelerated.
On 19 March 2000, the talks began at Rambouillet. Madeleine Albright, the
American Secretary of State, proposed that the province of Kosovo be given
autonomy, but short of independence, and that NATO troops be allowed into
Kosovo to guarantee that autonomy and freedom from ethnic cleansing for
the population. Although many Kosovars wanted independence, their
representatives signed the agreement that kept them within the Yugoslav state.
The Serbs, however, were unwilling to sign. The talks went on for three weeks,
while the process of ethnic cleansing on the ground in Kosovo gathered pace.
Milosevic wanted to pursue the same strategy that had allowed the Serbs to
cleanse half of Bosnia. He wanted to negotiate, to make agreements and
ceasefires, while at the same time his troops and paramilitaries were doing
their irreversible work.27 It was American insistence on NATO troops being
allowed into Kosovo to guarantee the agreement which Milosevic could not
accept. The Serbs were given an ultimatum: agree to the deal or face air strikes.
Milosevic preferred air strikes to erosion of his sovereignty in Kosovo.
NATO began air attacks on 24 March. The Serbs saw this as a signal to
begin an uninhibited campaign of ethnic cleansing against the entire Kosovar
population. While the bombing campaign slowly accelerated, hundreds of
thousands of Kosovars were terrorised out of their homes and out of the
country. They were sent across the borders, stripped of their money, their
homes, their identity papers and their citizenship. Hundreds of thousands
arrived in refugee centres in Macedonia and Albania.
NATO was unwilling to send any forces into Kosovo to defend the
population, since this might have resulted in the deaths of some of their
soldiers. Instead, they clung to the strategy of bombing strategic targets in
Serbia until Milosevic agreed to the terms of the Rambouillet agreement.
In the case of Kosovo there was the political will to respond with force to
the threat of ethnic cleansing. NATO had changed its stance since the campaign
in Bosnia. It now demonised Milosevic, a policy that contrasted with its
previous attempts to build him up into a position where he could control and
civilise the Bosnian Serbs. NATO did not allow its troops to be put in a
position where they could be taken hostage. The policy that it pursued in
Kosovo was simply the blunt use of enormous force. The result in the end
was that the campaign of ethnic cleansing in Kosovo, unlike that in Bosnia,
26 The killing of Kosovo, Panorama, BBC1, 1999.

27 Disunity within the international community means that its statements and actions are weak, watered
down to the lowest common denominator. As Slobodan Milosevic knows and exploits, it also means that
international condemnations, sanctions, and threats are often empty. Deadlines can be broken, conditions
only partially, cynically fulfilled, and there will be only limited repercussions.
At the 25 March 2000 meeting of the Contact Group, US Secretary of State Madeleine Albright warned her
colleagues: During the Bosnian war, how many times did one party or another appear to accept our
proposals, only to walk away? We say that in the former Yugoslavia, promises mean little until they are
implemented with safeguards. Incentives tend to be pocketed; warnings tend not to be believed. Leaders
respond not to the distant threat of sanctions but to the reality of sanctions. Quoted in Human Rights
Watch, 1999, p 113.
65
66
was unsuccessful; the Kosovars were allowed to go back to their homes with
some guarantees of safety. But the cost was enormous; to the Kosovars, who
had to endure the most appalling campaign of ethnic cleansing before the
Serb forces finally conceded defeat, and to the 500 Serb and Kosovar civilians
who died during the 78 days of bombing, as well as the presumably higher
number who were wounded.28
While there was some component of cosmopolitan motivation in the
Western response to the ethnic cleansing of Kosovo, there was also a large
component of self-interest, particularly the wish to avoid domino
destabilisation and mass movements of refugees towards the West. The
overriding concern to avoid any risk to Western soldiers undermined the
effectiveness of what was possible in terms of protecting populations from
the ethnic cleansers. In Kosovo the great powers used less cosmopolitan forms
than they had used in BosniaNATO rather than the UN, aerial bombing
rather than peacekeeping forcesbut the content of the policy was more
effective in aiding the victims of ethnic cleansing.
Omarska: an intimate concentration camp

Before looking in detail at the setting up of the international tribunal, another
of the strategies employed by the international community to address events
in the former Yugoslavia, I will give a brief sketch of the kinds of crimes that
were being committed in Bosnia in 1992.
In 1997, Rezak Hukanovic published his memoir 29 describing his
experiences at Omarska. Omarska had been an iron mining and ore processing
complex and was near Prijedor, a small north western Bosnian city. It was
officially called an information centre for men suspected of being members
of the government army. In reality its inmates were Bosnian Muslim or
Croatian civilians plucked out of their homes during ethnic cleansing. They
were chosen purely on the basis of their designated nationality or ethnicity;
Omarska was a concentration camp.
Hukanovics memoir of Omarska is written in the third person, centred on
a character, clearly himself, called Djemo. Djemo was at home in Prijedor,
worrying about his wifes unhappiness with his tendency to flirt with women
and remembering Serb against Muslim football matches, where the losers
paid for the beer and food at the following barbecue. He was taken from his
home at gunpoint by a Serb militia to a building where people were
interrogated and beaten. From there he was taken to Omarska. He estimates
that over the next two days more than 3,000 inhabitants of Prijedor arrived
there, including his son and some of his cousins.30
All through his memoir he comes across people he knows, both prisoners
and guards. There was no bureaucratic distancing or pseudo-scientific
dehumanisation. Omarska was a very intimate concentration camp.
The prisoners were crowded together and systematically starved. There
were routine and constant beatings; in the dormitories, on the way to and
28 Human Rights Watch, 2000, p 2.

29 Hukanovic, 1997.
30 Hukanovic, 1997, p 26.
from the canteen or the latrines, all the time. The guards used clubs, thick
electrical cable, rifle butts, fists, boots, brass knuckle-dusters, iron rods.
Prisoners were tortured into false confessions: a doctor who had no cellar
was forced to admit that he stole drugs from his clinic and hid them in his
cellar; a man who was widely known to suffer from progressive blindness
admitted that he had been a sniper.31 The sounds of these torture sessions
were heard daily from the dormitories. In the hot summer, the prisoners were
kept thirsty; the guards would throw small bottles of water into the dormitories
because the frantic struggle between the prisoners amused them. The prisoners
were routinely forced to sing Chetnik songs.
When somebody took a leak, the others gathered around to cup their hands and
catch the urine, wetting their chapped lips with it and even drinking it.32
A group of 10 prisoners was taken out by drunken guards and ordered to

strip naked. One man who had been a prisoner for quite some time, refused
to strip. The guards knocked him to the ground and cut off his penis and half
of his behind with a knife; they then directed a strong jet of water from a fire
hydrant at his wounds and later doused him with petrol and set him alight in
a garbage container.33
The prisoners were completely and constantly infested with lice.
Every night, after midnight, the guards called out the names of one or
more prisoners. These prisoners were taken out and beaten bloody, their bones
often broken and their skin punctured. A 60-year-old man was ordered to
rape a young woman; he refused, and after being tortured, was killed.
Hukanovic tells of a soldier by the name of Zoka, who would ask a prisoner
which eye he would like to keep, or which ball, and would remove the other one.
A white building at Omarska, known as the White House, was used for
routine torture and killing. Djemo was taken there on 10 June 1992. He was
beaten by four men who were drunk. He was ordered onto all fours just like
a dog34 and hit incessantly by a man named Ziga on the back of the head
with a club that unfurled itself every time he swung it to reveal a metal ball
on the end.35 A man called Saponja, who knew Djemo quite well, appeared
and began kicking him in the face with his boot. All through the torture the
guards were screaming abuse and making jokes. Djemo, unlike many, survived
the White House and was sent back to the dormitory.
One of the prisoners was a mathematics teacher called Abdullah Puskar. A
guard, who had been Puskars student, often came to collect him at night. He
harangued him as he beat him. I listened to you long enough, now youll
listen to me for a whileIm gonna beat that math out of you or die trying!36
It was Puskar and not his student who died.
Hukanovic tells the story of a few guards who were good, honest men.
But after a couple of days at Omarska, most such men were sent to the front
lines
That was the last anyone would hear of them.37
31
32
33
34
35
36
37
Hukanovic, 1997, pp 2829.

Hukanovic, 1997, p 32.
67
68
He tells of many more brutal tortures and deaths, always humiliating and
unimaginably painful. It is clear that at Omarska murder and torture were
routine. Bodies were regularly taken away in yellow trucks.
Djemo was taken from Omarska on a crowded, thirsty bus journey to a
camp called Manjaca. Here there were also terrible, crowded conditions, hunger,
thirst, and lice; but brutality, while it still existed, was less tolerated by the
Commander in Chief of the camp, who interrupted a beating with the words:
Enough. Thats the kind of thing you were supposed to do in Omarska, but
you cant do it here.38 There were visits from the Red Cross, who provided
diesel for the collection of water, but the prisoners still got little and dirty water.
In the end, Djemo was released in an exchange of prisoners organised by
the Red Cross and UNPROFOR. He and his fellow prisoners alighted from
the buses into a scrum of the worlds press and TV reporters, and then went
into exile.
Ed Vulliamy was a journalist who was in the first group of any outsiders
press, Red Cross or United Nations (UN)to see Omarska, on 5 August 1992.
He quotes a witness, Nedzad Jacupovic, who survived the White House, as
follows:
They would bring people from the big red hut at eight in the evening, 40 of them
each night, to the White House. There, they would beat them until they were dead;
it could take a day, three days or five days, ripping clothes off with knives, cutting
people and then just kicking and beating them to death over a period of days. Then
they would arrive with lists of others in the White House who were not yet dead,
for execution. They would record the mens details, take them out, one every 15
minutes, towards the Red House, where they were butchered. I was counting the
numbers; sometimes 18, 20 or 30; the record was 42. They were killed just in front
of my windows.39
Vulliamy quotes another survivor of the White House, Sakib R, who calculated
that 612 men disappeared from the hut during 12 days in July 1992:
I saw people loading the dead onto lorries and they were dropping bodies down
the mine shaft. On one occasion, 12 Croats were taken out to the toilet. I went in
there, and saw bits of their bodies on the floor.40
Vulliamy says that [t]he testimonies are willing and endless, but the evidence
these two men submit is typical, cogent and can be corroborated.41 One
survivorestimates that he was personally forced to help deposit 600 bodies
down the mine shaft at Omarska.42 Vulliamy estimates that something like
6,000 men were at Omarska at any one time, and several thousand of them
were brutally murdered. He adds that there were other similarly brutal camps,
for example one at Kereterm, established at a disused tile factory on the edge
of Prijedor and known as Room Three, and the Luka camp outside Brcko.
Here, a university lecturer called Mirsad was held and he told the following
story:
38
39
40
41
42

Vulliamy, 1994, p 109.

the guards allowed a pretty young woman called Monika to torture prisoners.
She took pleasure in the task and laughed as she performed it: Monika was the
daughter of a local whore, whom we all knew. She was 18 years old, and was the
most cruel torturer of young men. She would break a glass bottle and cut open their
stomachs while the guards watched and laughed. She had a soft, gentle face. We
never expected someone like that to do such things. But she enjoyed doing it43
Hukanovic describes how one day all the prisoners, including the beaten and
the sick, were taken out onto the tarmac and stood against a building. There
were, he estimates, about 3,000 of them:
The soldiers positioned themselves around the prisoners, ready to fire. One guard,
known for never parting from his machine gun for even a second, climbed to the
roof of the building across the way and began loading the magazine of his gun
with cartridgeshe aimed the barrel at the runway and lay down next to it, taking
aim at the menthe guards kept their guns trained on the prisoners for over an
hour. Then they were all taken back to the dormitories.44
Omarska was utterly different from Zygmunt Baumans picture of the genocide
of the Jews, the picture of the principles of scientific rationality coldly and
dispassionately designating the goal of extermination, and a bureaucratically
and technologically efficient execution of the plan. At Omarska, killing was
passionate and inefficient. Many of the guards knew personally many of the
victims. It often took hours or days to kill a single prisoner.
Hukanovic tells us that:
On weekends regular troops from Banja Luka came to the camp. The guards called
them specialists, and they were indeed specialists at breaking arms and legs, tearing
out organs, and smashing skulls against walls. The weekends at Omarska were
orgies of blood. One dayone of the regulars said, loudly, so everyone could hear:
Today is my 25th birthday, and Ive only killed 23 Muslims.45
Regular soldiers came to Omarska at the weekends to torture and kill Muslims.
Was this a way to wind down after a hard week at the front?
The main objective of the concentration camps, especially Omarska, but
also Kereterm, according to a UN commission of experts:
seems to have been to eliminate the non-Serbian leadership. Political leaders,
officials from the courts and administration, academics and other intellectuals,
religious leaders, key business people and artiststhe backbone of the Muslim
and Croatian communitieswere removed, apparently with the intention that the
removal be permanent. Similarly, law enforcement and military personnel were
targeted for destruction.46
When Djemo was being taken to freedom, one exchange of prisoners failed to
take place. The prisoners were taken to a cell block in the prison of a military
barracks. Their guards went off to sleep, leaving the prisoners in the hands of
the locals, the Knin Boys. They were left in the hands of this gang for a day
and a night, who tortured them, humiliated them and forced them to sing
43
44
45
46

Final report of the United Nations Commission of Experts established pursuant to Security Council
Resolution 780, 1992, para 175: cited in Honig, 1996, pp 7677.
69
70
Chetnik songs. The gang was allowed to amuse themselves with a bunch of
Muslims while they were in town, while the guards rested.
Vulliamys story about the young woman torturer reinforces this picture of
killing and beating for recreation. In very many of the testimonies of brutality
the perpetrators are drunk and laughing, enjoying themselves. They amuse
themselves by forcing prisoners to sing for them, and by haranguing them
with witty and ironic comments while they are murdering them.
There is an abundance of sexual torture, one prisoner sometimes being
forced to torture another. One prisoner was forced to bite another prisoners
testicles off.
On 7 May 1997, Dusko Tadic was found guilty of crimes against humanity.
He was found to have played a part in almost all of the assaults on prisoners
described by [Omarska] survivors during the one-year trial.47 The detailed
judgment upholds the view of Omarska that I have summarised from Vulliamy
and Hukanovic. The judges said that women who were held at Omarska
were routinely called out of their rooms at night and raped. One woman was
taken out five times and after each rape she was beaten.48
The UN response: the ICTY

In the summer of 1996, a NATO spokesman was widely quoted as saying that
arresting Karadzic is not worth the blood of one NATO soldier. Geoffrey
Robertson comments that:
[T]his was not so much a case of dereliction of duty as of correctly divining the real
purpose of the Hague Tribunal in the minds of the Security Council representatives
who set it up, which was never to put major criminals like Karadzic and Mladic
behind bars, but to pretend to an anxious and appalled world that something was
being done.49
David Forsythe agrees, arguing that the tribunal was set up fundamentally to
placate public opinion, and lacked the support from those states that set it up
that it required in order to be successful. Britain and other states failed to give
this support since it might have interfered with diplomatic efforts to end the
conflict.50 But he does concede that it may not be entirely useless: The
equivalents of Goering and Eichmann, much less Hitler, will not be tried, but
neither will they be free to visit Disney land on vacation.51
However, social structures have emergent properties, and they are shaped
by social agents; they have possibilities that are different from those intended;
they have the possibility of growing and developing. Institutions do not always
become what those who conceived of them had hoped. The ad hoc ICTY was
set up with a certain degree of autonomy from the UN Security Council. This
was inevitable, since it was set up as a court of law in the Western tradition,
and such courts necessarily have a degree of independence from the powers
in whose name they operate. The separation of powers between the executive,
47
48
49
50
51
Traynor, 1997; Prosecutor v Tadic.

Robertson, 1999, p 265.
Forsythe, 1994.
Forsythe, 1994, p 419.
the legislators and the judiciary are deeply ingrained principles, even if there
are many mechanisms by which the separation can, in practice, be eroded or
diminished. Even if the ICTY was set up by the great powers in order to feign a
concern for justice, that does not necessarily restrict the existing institution to
remaining a token gesture. The Nuremberg process was given life by the young
idealistic lawyers who made it work, and who, as far as was possible, strove to
use it to leave a set of precedents of cosmopolitan criminal law in place.52
Both the prosecutors at the ICTY and the judges have a belief in the
importance of the work they are doing, and they do it with commitment and
energy. Many of the central actors, for example Antonio Cassese and Cherif
Bassiouni, are well renowned legal scholars, people who have been writing,
almost since Nuremberg, about the possibility and necessity of international
criminal law. They were brought in from an academic wilderness and given
an institution to build. What the judges lack in actual trial experience they
make up for in enthusiasm and vision.
At the Tadic appeal, there was an instructive little exchange. Defending
Tadic was a British barrister, William Clegg, the same man who had defended
Sawoniuk.53 He was presenting an argument about what constitutes an
international conflict. He made an analogy with lend-lease during the Second
World War and said, rather clumsily, the Americans lent us armaments and
money but this didnt necessarily mean that they were themselves participants
in the conflict. Judge Shahabuddeen pulled him up immediately, saying that
he should speak more clearly: he should not say us, but Britain; he should
remember that people will be reading these transcripts in 50 years time, and
he should express himself in such a way as to make himself intelligible to
those future students of international law. Shahabuddeen was aware that the
discussion in the Tadic case regarding the definition of an international conflict
was ground-breaking; the court was making law for the future. Even if the
ICTY was set up by the Security Council as an empty gesture, those involved
were determined to make it work. Even if it was to end in failure, they were
thinking about future generations of lawyers and students who might be
reading those transcripts. The same can be said for the prosecutors: What
Richard Goldstone and his successorhave demonstrated is the optimistic
fact that enterprises of this sort have a tendency to develop a momentum of
their own.54 Cosmopolitan law is not simply an expression of the will of the
great powers. It can be influenced, limited or corrupted by them; but it is a
sphere of social life that necessarily has some degree of autonomy from the
particular interests of the powerful.
Yugoslavia broke up in the summer of 1991. Croatia and Slovenia declared
independence and fighting broke out between Croats and Serbs in Croatia.
Serbia sent arms, supplies, and the JNA to Croatia. In October 1991, Bosnia
held a referendum on independence but the Bosnian Serbs took control of
52 Franz Neumann, Otto Kirchheimer and Herbert Marcuse, for example, were all members of the prosecution
team at Nuremberg: Salter, 2000.
53 See Chapter Six.
54 Robertson, 1999, p 267.
71
72
their territory in Bosnia. During the spring and summer of 1992, the Serbs
began the process of ethnic cleansing against the Muslims in Bosnia.
In February 1992, the UN Security Council adopted Resolution 721,
authorising a special peacekeeping force, UNPROFOR, for Bosnia. The
Commission on Human Rights convened the first exceptional session ever
on 13 August 1992 to discuss the ethnic cleansing. A special Rapporteur was
appointed in August 1992, who subsequently issued four reports to the General
Assembly and the Security Council.55
The first report, on 28 August 1992, confirmed that ethnic cleansing had
been pursued throughout Bosnia by Serbs, that there had been torture and
systematic execution and that 3,000 Muslims had disappeared after the fall of
Vukovar. The second report, in October 1992, following a visit by the Rapporteur
to Bosnia, stated that Muslims had clearly become victims of aggression and
ethnic cleansing. Displaced persons were in a desperate situation, especially
in the Travnik area; before their arrival in Travnik, many had been taken to
the front lines, subjected to beatings, robbery, rape and sometimes shooting.
There had also been ethnic cleansing in Pijavija, Prikepolje, and Proboj. On 6
October, the Security Council voted to establish a commission of experts to
gather evidence of war crimes in the former Yugoslavia.56 The third report of
the Rapporteur, on 17 November 1992, highlighted violations of the various
parties legal obligations under international law. Ethnic cleansing, it argued,
followed the political objective of the Serbian nationalists of the creation of a
Greater Serbia. It concluded that one and a half million out of four million
Bosnians had become refugees, 75% of these refugees being children and
elderly. The fourth report, the most comprehensive, concluded that the serious
and large scale violations of human rights and international humanitarian
law were not by-products of war but were deliberate policies of the Serbs. It
also reported that there was discrimination against Serbian civilians in Croatia,
and against Albanians in Kosovo.
Dame Ann Warburton was sent by the European Community to Yugoslavia
in December 1992 and January 1993, and she reported on 3 February 1993 to
the UN Secretary General. She found that the rape of Muslim women had
been perpetrated on a wide scale and in such a systematic way as to be
considered part of an intentional war strategy. She estimated that there had
been 20,000 rapes, but said that it could be between 10,000 and 60,000, with
about 1,000 pregnancies. She reported testimony that a repeated feature of
Serbian attacks on Muslim towns and villages was the use of rape, often in
public, or the threat of rape, as a weapon of war to force the population to
leave their homes.57
The Security Councils commission of experts was slow, academic and
stuffed with old fogeys.58 It was chaired by Frits Kalshoven, a retired professor
55 The four reports are cited in Bland, 1994.

56 Bass, 2000, p 211.
57 Joyner, 1994. On 22 February 2001, three men, Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic,
were found guilty of crimes against humanity at the ICTY for organising and perpetrating mass rape and
sexual slavery. The judgment of the 11-month trial confirmed that, in the summer of 1992, rape houses had
been set up in sports halls and other places. Rape was seen by the judges as a method of ethnic cleansing,
aimed at spreading terror, and also at impregnating Muslim women with Serb babies. Prosecutor v Kunarac,
Kovac and Vukovic.
58 Bass, 2000, p 211.
of law at Leiden who admitted to having serious qualms about convening

war crimes trials. Roy Gutman reported that Kalshoven tells visitors he does
not know why he got the job.59 Kalshoven was the only full time employee of
the commission who did not have the resources to carry out investigations.
Gutman also reports that Kalshoven says that he was told by authoritative
persons at the UN not to investigate Milosevic or Karadzic.60 Cherif Bassiouni,
an Egyptian-American law professor at DePaul University who was on the
commission, described Kalshoven as an indoor scholar, and he started
pushing hard to make something of the commission.61 Bassiouni raised money
for the committee and began collecting documentation and a database of
evidence of crimes committed in Bosnia. Kalshoven, complaining about British
and French foot-dragging, resigned in August 1993 leaving the committee in
the hands of Bassiouni, but it was closed down in April 1994.62
On 22 February 1993, however, the Security Council had adopted Resolution
808, which formally decided that an international tribunal should be
established for the former Yugoslavia. On 25 May 1993, the Security Council
adopted Resolution 827, formally establishing the tribunal. The tribunal was
set up under the UN Charter (1945) in relation to keeping the peace, not directly
in relation to justice or to prosecuting crimes against humanity. It was
established under authority of Chapter VII of the UN Charter, which provides
that the Security Council shall decide what measures shall be takento
maintain or restore international peace and security. Under Article 48(1) of
the charter, [t]he action required to carry out decisions of the Security Council
for the maintenance of international peace and security shall be taken by all
the Members of the United Nations. All member states were thus obligated
to adhere to the requirements imposed on states in the Security Council
resolutions governing the activities of the tribunals.63
The Security Council argued that atrocities in Bosnia constituted a threat to
international peace, and that the tribunals would contribute to the restoration
of peace. It was on this basis, pursuant to Chapter VII of the UN Charter, that
the Security Council decided in its Resolutions 808 and 827 to establish such a
tribunal. The singling out of violations of humanitarian law as a major factor
in the determination of a threat to the peace creates an important precedent.
The establishment of the tribunal as an enforcement measure under the binding
authority of Chapter VII, argued Theodor Meron, may foreshadow more effective
international responses for violations of international law.64
The Security Councils resolution binds all member states to co-operate
with the tribunals. The general obligation of states to co-operate can be found
in operative paragraph 4 of Security Council Resolution 827 and operative
paragraph 2 of Resolution 955, the resolutions establishing the Yugoslav and
Rwanda tribunals respectively, and setting forth their structure, jurisdiction
and procedures. These provisions both read as follows:
[The Security Council] Decides that all states shall co-operate fully with the
International Tribunal and its organs in accordance with the present resolution and
59
60
61
62
63
64
Gutman, 1993, p 151.

Gutman, 1993, p 150.
Bass, 2000, p 211.
Bass, 2000, p 212.
Kushen and Harris, 1997.
Meron, 1994.
73
74

the Statute of the International Tribunal and that consequently all States shall take
any measures necessary under their domestic law to implement the provisions of
the present resolution and the Statute, including the obligation of states to comply
with requests for assistance or orders issued by a Trial Chamber under Article 29
[Article 28 for Rwanda] of the Statute.65
The specific obligation to surrender fugitives is found in Articles 28 and 29,

which read as follows:
1
States shall co-operate with the International Tribunal in the

investigation and prosecution of persons accused of committing
serious violations of international humanitarian law.
States shall comply without undue delay with any request for assistance
or any order issued by a Trial Chamber, including, but not limited to:
(d) the arrest or detention of persons

(e)
the surrender or the transfer of the accused to the International
Tribunal.66
The agreements to surrender suspects to the court are analogous to bilateral

extradition treaties.67 Because the Security Council has powers to act and to
obligate states to act under the section of the charter relating to the maintenance
of peace and security, this was a convenient and effective method of founding
the court. The political will existed in the Security Council, and the legal powers
were discovered with which to enact that will.
It is not obvious that the Security Council in fact had the legal right to set up
the tribunal under Chapter VII of the charter. Neither is it clear that the Security
Council could bestow upon the tribunal the authority to command states to
co-operate, since it was claiming to be independent even though its authority
originated from the fact that it was a subsidiary body of the Security Council.
The establishment of the tribunal has also been seen as the assertion of political
supremacy of great powers over small states, since this mechanism for setting
up an ad hoc tribunal could only be used against less powerful states.68 A
subsidiary body could not have competence falling outside the competence of
its principal, and it is questionable whether the GeneralAssembly is competent
to administer justice. The Security Council, it could be argued, is similarly
incompetent to administer justice, but it is competent to handle matters relating
to peace and security. Perhaps more importantly, the General Assembly is unable
to make binding decisionsto make it mandatory for states to co-operate with
the tribunal, for examplewhereas Article 24(1) of the UN Charter obliges all
member states to accept and carry out the decisions of the Security Council.69
These kinds of legal objections to the institution of the court have a similarity
with some of the formalist objections to the Nuremberg process. It seems clear
enough, however, that it is not the cogency or correctness of any particular
legal argument that carries the day. If there is a coincidence of political will
between the great powers and others to set up an international tribunal, then
they are able to discover legal mechanisms with which to do it. The ICTY was
65
66
67
68
69
Meron, 1994, p 511.

Meron, 1994, p 511.
Kushen and Harris, 1997.
Cotic, 1994, p 223.
Kolodkin, 1994, p 388.
set up under a section of the UN Charter that was clearly never intended to
empower the Security Council to institute a court. Yet the Security Council
discovered a mechanism for doing what it wanted to do. Perhaps the
Nuremberg tribunal suffered from significant flaws; perhaps it was vulnerable
to the tu quoque argument, and perhaps also to the retrospective justice
argument. However, after Nuremberg, the Nuremberg process itself constitutes
a clear unambiguous precedent. Innovation is necessarily unprecedented.
Similarly, the ICTY was perhaps created on the basis of a piece of legal trickery.
Once created, however, it constitutes a precedent.
The structure of the tribunal consists of three principal organs: the chambers,
the prosecutor, and the registry. The chambers comprises three-member trial
chambers and a five-member appeals chamber charged with adjudicating
cases. The prosecutor investigates allegations and prepares indictments for
cases to be prosecuted. The registry assists both the prosecutor and the
chambers, in addition to performing other administrative duties, such as
requesting governments to provide information on the identity of the accused,
to serve documents and to extradite the accused.
The tribunal retains concurrent jurisdiction with the national courts of states
that have emerged from Yugoslavia since its collapse. States have the right to
put a suspect on trial, but the tribunal has the power to retry such a suspect.
Article 210 of the statute prohibits trials in absentia.
Today, as we watch the trial of Milosevic himself unfold, the tribunal can
appear to be a successful manifestation of Western, or American, power and
resolve. It is not true, however, that there was a policy decision at an early
stage by the Western leadership to create such a tribunal. When the tribunal
was first constituted by the Security Council it was done so ambivalently. It is
impossible to know exactly what the intent of Western leadership was when
the court was set up, to know exactly how components of different motivations
were balanced. There was a wish to pursue justice; there was a wish for the
appearance of justice to cover an unjust policy; there was a wish for an
instrument of apparently legitimate power that could punish the enemies of
the West. And then there is no such thing as an intent of the Western
leadership, but rather a coalition of individual approaches by states with
different amounts of influence, and by individuals within regimes also with
differing amounts of influence. Western policy swung wildly from the
humiliation in the Sudan, to the timidity in Bosnia and Rwanda, to the
thunderous response in Kosovo; the uses the West wished to make of the
ICTY must also have swung wildly during this period, a period also of
transition from Bush to Clinton to Bush, and from Major to Blair. Policy
towards the court also became more favourable when Yugoslavia became more
stable and when the possible threat to the fragile equilibrium held in place by
NATO troops decreased; in other words, when the risk to stability and to the
lives of NATO soldiers decreased.
One thing is clear: that the ICTY was first established without the resources or
the power necessary to succeed in bringing to justice those primarily responsible
for ethnic cleansing in the former Yugoslavia. Its growth into such a body was the
result of a combination of factors. There was the work and vision of the
prosecutorsandjudgeswhobuilttheinstitutionbecausetheybelievedinit.There
were the developments in the former Yugoslavia, such as fall of the Milosevic
regime and the liberalisation of the Tudjman regime after his death. There was
75
76
the increasing reliance by NATO on human rights rhetoric during the Kosovo
conflict. There was the good luck of the ICTY in obtaining defendants, from the
chance arrest of Tadic in Germany to the extradition of Milosevic, following his
overthrow, encouraged by the promise of dollars to the new Serbian regime.
In November 1993, the 11 judges took office in The Hague. Antonio Cassese
later said that the Security Council had thought that the tribunal would never
become operational. We had no budget, we had nothing. Zero.70 The selection
of a prosecutor was a protracted and politicised process, since the prosecutor
would have control over the indictments of the court. In July 1994, the Security
Council appointed Richard Goldstone. In 199394, the UN proposed a budget
of $562,300 for investigations, including witness travel, interviews with
refugees, forensic experts, translators and protection,71 although in the end
the General Assembly gave the tribunal $5.6 million for the first half of 1994
and $5.4 million for the second half. By 1999, in comparison, the budget had
risen to $94 million.72 In those early days morale and confidence at the ICTY
were low, and there was a danger that the whole process might fold. A member
of Goldstones staff is quoted by Gary Bass: A, you can indict Milosevic and
be shut down, or B, you can do low level [indictments] and do a few trials.73
Even the indictments of Mladic and Karadzic, issued on 25 July 1995, were
bold moves by Goldstone, who said: it was really done as, if you like, an
academic exercise. Because our duty was clear. We werent going to be
dissuaded from doing it by any prognosticationsgood or badas to what
effect it would have.74 The autonomy of the prosecutor and of the court was,
perhaps, not seen as a problem by the West since its power was very small.
The morale and sense of purpose at the ICTY strengthened greatly. It
developed from a body whose central actors felt that it existed only to fail in
1993, to a body capable of indicting the (almost) top perpetrators of ethnic
cleansing as an academic exercise in 1995, to a body capable of convicting
Tadic in 1997. After the Tadic conviction there was a different feeling around
the court. There were three courtrooms trying cases and a queue of defendants
waiting in the cells. By 1999 the court was ready to indict Milosevic himself,
and by June 2001 it held him prisoner. This trajectory of development would
have astounded everyone in 1992 when the Security Council constituted the
court. The relentless increase in leadership, competence and self-confidence
within the institution has been mirrored by a gradual change in policy by the
Western leadership in its favour.
The ICTY is an empirical fact; it exists. The court building is opposite the
main conference centre on the edge of Den Haag, a couple of miles away
from the seafront at Scheveningen. The brown stone 1950s-style building is
surrounded by a metal fence, behind which UN security staff can be seen
patrolling from time to time. Their uniforms are reminiscent of American police
uniforms, but UN pale blue. They carry guns on their belts. They are recruited
from police forces and armies around the world, but are not working for those
forces; they work for and owe their allegiance directly to the UN and to the
court. I spoke to guards from Nigeria, Scotland, Italy and Venezuela.
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72
73
74
Bass, 2000, p 217.

Bass, 2000, p 221.
Bass, 2000, p 221.
Bass, 2000, p 229.
Bass, 2000, p 230.
There is airport-style security on entering the building. There are armed guards
in the foyer and in the public galleries. They sit on either side of the defendants
at all times behind the bulletproof glass separating the court from the public.
The building feels like an international court. It flies blue UN flags outside; it
has blue UN flags and insignia behind and above the judges. Daily, it proceeds
with the business of conducting trials. It conducts slow and long trials, but
trials nevertheless. Cosmopolitan criminal law is not some Utopian concept; it
exists in this building in The Hague, even if only in an embryonic form.
On a routine day in the court, when there is no verdict to be announced, no
new indictment, nothing dramatic happening, there are not many visitors.
Even for the Milosevic trial, the public gallery is typically less than half full.
There is a small press room, a handful of journalists. There is a young man in
the press room whose job it is to feed the television pictures of the trials onto
the internet. Proceedings in each of the three courts can be watched, with a
half hour delay, from anywhere in the world.
I arrived at the court shortly after the end of the Sawoniuk trial in London.
There, I had become accustomed to gossiping about the progress of the case
with the others in the public gallery between sessions; there were the few who
followed the case throughout, and the ones who came to look, occasionally,
or just for a day or two. On my first morning at The Hague, I was watching
the Blaskic trial. During the break, I approached one of the few other observers.
I asked how the trial was going, what were her impressions. She looked at
me with disdain, and said, shortly, that she was not about to explain the whole
complex case to me, and walked off. A while later, I approached three men
who were there, and attempted, a little more subtly, to talk to them. They
looked at me with suspicion. They asked me who I was, what I was doing
there, and why they had seen me talking to a Croatian journalist. I suddenly
became aware that the whole atmosphere at The Hague was different from
that of the Old Bailey. The woman had been a Croatian, covering the trial of
Blaskic for a Zagreb paper; the three men, I noticed later, left the courthouse
every day in a large black BMW with Bosnian diplomatic number plates. The
events dealt with here were much more current and fresh than at the London
trial. There was an atmosphere of suspicion. There were supporters of all
sides present; those who had direct experience of being cleansed and those
whose profession it was to deny and lie about ethnic cleansing. A small part
of the war was still being fought, here, in the court building. The buildup to
the NATO bombing in Kosovo was happening at that time.
The three Bosniak men told me that they were spies like James Bond.
They watched the trials, taking long and detailed notes. I spent some time
trying to gain their confidence, hoping that perhaps I would be able to
interview them. They became more friendly, and a little less suspicious, but
they had their work to do; they answered questions either in riddles, or with
the official Bosnian Government line.
The staff who work in the building speak mainly English as they sit in the
foyer near the coffee machine. I spoke to Americans, Canadians, British, Dutch,
French, Germans, South Africans, and others. They are lawyers, ex-cops,
translators, clerical workers, students doing internships. Being a sociologist, I
attempted to strike up conversations with people, to find out what they had
to say, to build up an impression of them and how they were thinking; to
form an idea of the general morale of the staff and the institution; to do a little
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amateur ethno-methodology. I found them, in general, rather tight-lipped. It

was only a few days later, when I was approached and questioned by the
head of security at the court, that I realised that each member of staff who I
had tried to talk to had subsequently gone to him to report the conversation.
He knew my name, who I had been talking to, how long I had been around,
and which trials I had been observing. All of this bolstered my impression of
the seriousness of the court. They take themselves seriously and they take
security seriously.
The UN existed in Srebrenica as it exists at The Hague, with the same blue
flags and helmets; it had similar institutional forms and appearances. The
content, however, of the supra-national interventions was significantly
different. At The Hague, the UN institution is based on due process, justice,
respect for human dignity and for human rights. It has a real, if limited,
independence from the powers that set it up. It is self-consciously building
on the fragments of cosmopolitan criminal law and practice that were
bequeathed to it by previous processes. The ICTY quietly conducts its groundbreaking business. It contrasts starkly with UN negligence and indifference
during the war in Bosnia. Even if the ICTY was set up by the Security Council
in order to fail, the reality, in a limited way, is defying expectations. This UN
institution has attained some real humanitarian content. What exists in the
ICTY is a spark of genuine cosmopolitanism; in Srebrenica, behind the
cosmopolitan faade, there was only darkness.
Chapter Five
The trials of Blaskic and Tadic at the
ICTY
In this chapter, I present outlines of two trials from the International Criminal
Tribunal for the former Yugoslavia (ICTY) based on my own observations at
The Hague, on internet broadcasts of the trials, and on the trial transcripts
and judgments. Tihomir Blaskic, a Croatian General, presented himself as a
professional soldier, and at the time of his conviction was the highest ranking
person to have been convicted at the ICTY. Dusko Tadic, an ideologue and
torturer in a small town, was the first person who pleaded not guilty to be
found guilty at the ICTY. Cosmopolitan criminal law is not an abstract ideal
but a developing reality. It is important to anchor discussion of theoretical
debates in the actuality of events: first, events that constitute the subject matter
of cosmopolitan criminal law, in these two cases ethnic cleansing itself;
secondly, events that constitute the substance of cosmopolitan criminal law,
the extraction of individuals from machines of terror, the designation of their
acts as crimes and the routine business of their prosecution. It is important to
look at trials not only as legal cases but in a more rounded way as social
processes. These discussions of trials are intended to give an insight into the
mechanics of the processes of cosmopolitan criminal law. The concepts of
cosmopolitan right, supra-national authority and due process attain their
worldly actuality in the quotidian professional business of lawyers, judges,
investigators, translators, security officers and journalists. As was shown in
the last chapter, cosmopolitan forms do not necessarily coincide with genuine
cosmopolitan content. The relationship between the lofty concepts and their
worldly actuality is therefore a fundamental point of investigation.
The trial of General Tihomir Blaskic

The trial of Tihomir Blaskic opened on 24 June 1997 and ran until 30 July
1999; judgment was passed down on 3 March 2000. He was, at the time of his
conviction, the highest ranking person to be found guilty at The Hague, and
was sentenced to 45 years imprisonment. He was the first to be found guilty
who had not committed violent acts with his own hands, but was held
responsible for such acts due to his position in the military structure of the
Croatian army in Bosnia. He was in his late 30s at the time of the trial. He was
charged with having committed, ordered, planned or otherwise aided and
abetted in between 1 May 1992 and 31 January 1994:
(a) a crime against humanity, persecution (attacks upon cities, towns and
villages; killing and causing serious injury; destruction and plunder of
property; inhumane treatment of civilians; forcible transfer of civilians);
(b) crimes against humanity, wilful killing and causing serious injury;
(c) grave breaches of the Geneva Conventions;
(d) and violations of the laws or customs of war, for killing, serious bodily
harm, destruction and plunder of property, destruction of institutions
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dedicated to education or religion, inhuman or cruel treatment of

detainees, including the taking of hostages for use as human shields,
all this against the Muslim population of central Bosnia and in
particular the Lasva Valley, that is more specifically in the
municipalities of Vitez, Busovaca, Kiseljak and, to some degree, Zenica.
He was, in any case, charged with not having taken reasonable measures to
prevent crimes or to punish the perpetrators thereof although knowing or having
reasons to know that the crimes were about to be committed or had been
committed. He was found guilty on every count, except that he was not held
responsible for the shelling of civilian homes in Zenica, though the trial chamber
concluded that this crime was probably committed by his forces in the HVO.1
The Blaskic trial was held in a small courtroom which appeared to have
been constructed on the mezzo floor of the building, on the landing of the
large grand staircase. The glass that separates the court from the public does
not seem to cut the courtroom in half but rather to give the impression of a
zoo, as though the court is in a glass cage and people can come along and
look whenever they like. The public gallery feels as though it is outside the
court. There are three sections of seats, for the public, for journalists, and for
VIPs. The VIP section is in the middle, and at the front of this section the
chairs are particularly comfortable. The small electronic boxes into which you
plug your headphones work well; there are settings for French, English and
BCS (Bosnian-Croatian-Serbian). The glass barrier is soundproof, and one can
only hear what is being said through the loudspeakers or through ones
headphones. There are also television screens either side of the glass partition
that constantly show proceedings. Every now and then, the court decides to
go into private session; suddenly, the microphones and television screens are
switched off, the blue blinds are lowered over the glass partition, and the
public gallery is entirely excluded from proceedings.
Inside the courtroom, there is a feeling that one is in the presence of a
genuinely international court. The judges are from France, Portugal, and
Guyana. The team of prosecutors is led in cross-examination by Kehoe, a man
with a New York accent who is reminiscent of a tough, streetwise, rather
intimidating cop. The defence team is smaller, consisting of a Croatian and a
young American who, in contrast, seems to be rather Ivy League. When the
two Americans clash fiercely across the courtroom the French judge in the
middle looks exasperated at this American adversarial combat, and yet again,
but vainly, appeals for a little synthesis from all sides: We dont want still to
be here at Christmas.
The area in which Blaskic was responsible for ethnic cleansing was the
Lasva Valley, 30 kilometres north west of Sarajevo, surrounded by hills,
through which the main road towards Travnik and Vitez passes. According
to the 1991 census, the municipalities of Vitez, Busovaca and Kiseljak, which
are in the Lasva valley, had been roughly evenly divided between Croat and
Muslim populations, with a small Croat majority.
The HVO was the army of Croatians in Bosnia; the HV was the army of the Republic of Croatia.
The trials of Blaskic and Tadic at the ICTY
In early 1992 Blaskic was in Vienna, having left the Yugoslav army (the
JNA). In February 1992, the municipal council of Kiseljak, the town in which
Blaskic had been born, invited him to organise the defence of the municipality
against the Serbs. This was initially organised with both Croat and Muslim
participation. On 6 April 1992, the Republic of Bosnia-Herzegovina declared
its independence, and it was formally recognised by Croatia the next day. The
UN Security Council called for external forces to leave the territory of Bosnia.
It demanded that the JNA and Croatian army units withdraw, place themselves
under the authority of the Bosnian Government, or be disbanded. But the
now Serbian JNA was nearby, at Jajce, and was also advancing towards the
Lasva Valley from the south east. The Croatian nationalists, with the backing
of Zagreb, gained the leadership of the HVO, the Croatian Defence Council
in Bosnia, against the wishes of those Croatians who supported multi-ethnicity,
or cohabitation, with the Muslims. The Bosnian Territorial Defence (the TO)
was formed on 9 April 1992 and was outlawed the next day by the President
of the Croatian community in Bosnia, Mate Boban. The Croatian General Anto
Roso confirmed this in an order on 8 May, and on 11 May Tihomir Blaskic
implemented that order by pronouncing the TO unlawful in the territory of
Kiseljak. The joint Muslim and Croatian defence of the Lasva Valley, therefore,
was only ever notional, and was quickly replaced by a Croatian nationalist
leadership that planned a campaign of ethnic cleansing against the Muslims
in the area. They were not prepared to allow Muslims to participate in the
defence against the Serbs since it would have been necessary to allow them
access to weapons.
Blaskics defence contained a number of strands but centrally he argued that
he was in charge of a poorly trained, hurriedly mustered force; he was under
siege from the Serbs, communications between himself and his forces were
difficult, and there were many Croatian paramilitary and police outfits operating
in the area over which he had no authority. There were atrocities committed of
which he did not approve and over which he had no control. He further argued
that some of the atrocities committed against Muslims were in fact either
committed by Serbs or by Muslims themselves. He argued that Muslims were
committing atrocities against Croats, and that it was not surprising if Croat
forces beyond his control retaliated in a similar manner. His defence argued
that he had repeatedly issued written orders that his forces should respect
humanitarian law. And the defence maintained that the use of work teams
made up of prisoners to dig trenches was legal at the time of the conflict.
Blaskic presented himself in court as an experienced and meticulous army
officer. He was always courteous. He played the part of an isolated professional
soldier trying valiantly but unsuccessfully to discipline his untrained civilians
into a modern and professional army. During his cross-examination, Kehoe
would always greet him with a gruff good morning, General. Blaskic would
answer with good morning, Mr Prosecutor. And they would get down to
business. Kehoe would introduce a document, maybe a copy of an order that
Blaskic had received or issued. Blaskic would require 10 minutes to read the
order. Kehoe would ask him what the order meant. Blaskic would take five
minutes to explain in great detail the meaning of the order, explaining everything
in it except for the part that was relevant. It became increasingly clear under
cross-examination that his professional attention to detail and rules was a screen
behind which Blaskic was hiding the reality of his job in the Lasva Valley. He
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had a legalistic, unrealistic and pedantic way of reading documents, and

attempted to use this as a shield against the accusations. He tried to drown the
court in detail. This cross-examination went on for six weeks.
In May 1992, tensions between Muslim and Croatian populations had
intensified in the Lasva Valley. The Croatian flag was being flown on public
buildings that the HVO controlled; mosques and Muslim houses were
beginning to be attacked, and there were some ethnically motivated murders.
Some officers of Croatian origin were kidnapped by Muslims. Muslims were
beginning to be pushed out of their homes by Croats, and there were many
Muslim and some Croatian refugees moving into the area from places where
Serbs had pushed them out. Blaskic was appointed Commander of the Central
Bosnian Operative Zone of the HVO on 27 June 1992.
The Vance-Owen plan was put forward on 2 January 1993. It proposed the
creation of 10 provinces in Bosnia that would each have substantial autonomy
The Lasva Valley was located mainly in Province 10, with the rest in Province 7.
Though the Vance-Owen plan was never implemented on the ground, the
tribunal judged that the Bosnian Croats understood that Province 10 was to be
given to them, and that they also understood that they would have an interest
in incorporating the Croatian areas of Province 7, which were predominately
Muslim. [T]he Bosnian Croats, argued the judgment, bore a heavy
responsibility in conducting the war in anticipation of its implementation [the
Vance-Owen plan] and in willing its unilateral execution.2
Mate Boban ordered Muslims to hand over their arms by 15 January 1993,
and the HVO proceeded with a campaign to Croatise the territories by force.
Hundreds of Muslims were arrested and many were imprisoned in Kaonik,
where they were badly treated. These Muslim prisoners were used to dig
trenches, often under inhuman conditions and exposed to enemy fire; they
were also used as human shields.
In April 1993, at a televised public meeting, Blaskic said that HVO soldiers
had been attacked in Nadioci, and in a written order he commanded the HVO
brigades and the Bitezovi special unit to fire back if attacked; he ordered the
HVO brigades and the Military Police 4th Battalion to defend themselves
against Muslim terrorist attacks. On 16 April 1993 at 1.30 am, he issued a
combat order to the Vitez Brigade and the Tvrtko independent units to
prevent the attacks of extremist Muslim forces. They had to be ready to
commence shooting at 5.30 am on 16 April. These statements and orders were
thinly encoded announcements of the plan to begin the campaign of ethnic
cleansing in earnest. At that time, and over the following days, the campaign
was carried out in the Lasva Valley. Civilians were killed and wounded, houses
burnt down, minarets brought down, mosques destroyed, women and
children separated from the men and left to flee; women were raped and men
imprisoned, beaten and led off to the front to dig trenches.
Ahmici was a largely Muslim village and was well known for its practice
and teaching of the Muslim religion; its largest mosque had just been rebuilt.
The Croatian inhabitants left the village on the evening of 15 April. At 5.30 am
on 16 April, artillery began to bombard the village. Many Muslim men, women
and children were forced out of their homes and shot, many others were burnt
alive in their houses. This was the village where the British UN peacekeepers
2
Prosecutor v Blaskic.
led by Colonel Bob Stewart, who gave evidence at the trial, found the bodies
of many people. Stewart was interviewed at the time on television news. His
anger, disgust and frustration at the scene his men had found in Ahmici
penetrated his English and military reserve. The interview was moving and
memorable. No soldier in the HVO, the military or paramilitary police units
was ever punished for the events at Ahmici by the Croatian authorities. This
reaction can be contrasted with the fact that on 16 April, the very day of the
attack on Ahmici, Blaskic sent a protest to UNPROFOR because a United
Nations (UN) armoured vehicle had knocked down a church fence. Many
other villages in the Lasva Valley met the same fate on 16April and the following
few days. Inhabitants were taken prisoner, forced to flee or murdered. There
were attacks on Muslims all through the spring and summer of 1993 that
constituted the campaign to Croatise the territory.
The prosecution contested Blaskics two central lines of defence, which
were that he had difficulty in communicating with his troops3 and that the
crimes were committed by paramilitary units that were not under his control.
The judges found that Blaskic had been successful in setting up a solid chain
of command throughout the territories for which he was responsible. That
chain of command incorporated paramilitary and police outfits that were not
part of the HVO but that were shown during the trial to have operated under
the authority and direction of Blaskic.
The HVO was not simply an army, but also had a civilian structure. The
distinction between the military leadership and the civilian or political
leadership was not sharp. Blaskic often appeared in public meetings, alongside
Mate Boban, Dario Kordic,4 Anto Valenta and other political leaders, who
sometimes wore military uniforms; he was part of the leadership of the HVO,
and was clearly aware of the fact that the programme of the HVO was one of
Croatisation and the ethnic cleansing of Muslim people, places of worship
and businesses.
Much time was spent during the trial by the prosecution to show that the
conflict was an international one, and not simply a conflict between Croats
and Muslims within Bosnia. This was relevant for two reasons. First, some of
the laws and customs of war, particularly the Geneva Conventions, only apply
to international conflict, so that it was necessary to prove the existence of an
international conflict in order to convict Blaskic of breaking those laws.
Secondly, it was shown during the trial that the HVO and Blaskic were carrying
out the policy of the Republic of Croatia in working towards the dream of a
Greater Croatia. Franjo Tudjman had met with Slobodan Milosevic in March
1991 to discuss the sharing of Bosnia between themselves. The chain of
command was shown, in the trial, not only to be strong from Blaskic
downwards to the troops on the ground carrying out the ethnic cleansing,
but also upwards, all the way to Tudjman. A fiction of HVO independence
3
4
In fact, it was shown that cellular phones were working in the area at the time.
At the time of the cross-examination of Blaskic, the trial of Kordic was beginning in the courtroom upstairs.
Kordic, the political leader of the Croats in the Lasva Valley at the time, was found guilty on 26 February
2001 for his part in the ethnic cleansing of the territory, and particularly for ordering the attack on Ahmici
and other villages in April 1993. He was not found to be a prime mover or an architect of the overall
campaign, but was found to be an important politician in the area. At the time of his conviction, Kordic
was the most senior political leader to have been found guilty at the ICTY. Prosecutor v Kordic and Cerkez.
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from Croatia was maintained, but it did not constitute a reality. Many HV
personnel operated within the HVO, and documents produced during the
trial show that they were ordered to change their insignia to those of the HVO.
Later, Blaskic himself was transferred from the HVO to the HV on the orders
of President Tudjman. It is true that Croatia, initially at least, gave some aid to
Bosnia, but its links with the HVO were much closer, involving the interchange
of personnel and the donation of a million Deutschemarks a day.
Fundamentally, the Republic of Croatia was involved in a cross-border military
campaign with the eventual aim of annexing parts of Bosnia.
The trial of Blaskic took over two years, heard 158 witnesses and received
nearly 1,500 exhibits. It is perhaps a measure of the novelty and immaturity of
the system of international criminal law that this trial, which was not
fundamentally very complex, took so much time, money and resources. It is
possible that with increasing self-confidence and experience the ICTY will be
able to try cases more quickly and efficiently. William Clegg, the barrister who
defended Tadic at his appeal, and who also defended Andrei Sawoniuk,
expressed the opinion in an interview5 that it should be possible to try a case
such as this in six weeks. He argued that it would be better for the prosecution
to pick its five or six clearest incidents with which to prove its charges, instead
of attempting to prove every single allegation. It is also true that these first few
trials have been concerned to prove larger issues than the guilt or innocence of
the accused. For example, in the Blaskic and Tadic trials, much time was spent
proving the complicity of Croatia and Serbia in the conflict in Bosnia and proving
that genocide and crimes against humanity were being committed. Such issues,
it is to be hoped, need only to be proven comprehensively once.
The trial of Dusko Tadic

Dusko Tadic was the first person who had not pleaded guilty to be convicted
at the ICTY. He was found guilty in May 1997 and sentenced to 20 years
imprisonment. Tadic was arrested in February 1994 in Germany, where he
was then living, on suspicion of having committed offences at Omarska,
including torture and aiding and abetting the commission of genocide, which
constitute crimes under German law. Proceedings at the ICTY against Tadic
started on 12 October 1994 when Richard Goldstone, then the courts
prosecutor, filed an application that the Federal Republic of Germany should
hand over Tadic to The Hague and that the German courts should defer
competence to the international tribunal. A public hearing was held on 8
November 1994, after which the indictment of Tadic and an arrest warrant
were produced in February 1995.
Tadic was charged with individual counts of persecution, inhuman
treatment, cruel treatment, rape, wilful killing, murder, torture, wilfully causing
great suffering or serious injury to body and health, and inhumane acts alleged
to have been committed at the Omarska, Kereterm and Trnopolje camps and
at other locations in Opstina Prijedor in the Republic of Bosnia-Herzegovina.
Germany enacted the necessary legislation for his surrender, and he was
transferred to The Hague on 24 April 1995. He pleaded not guilty to all charges.
Interview conducted by the author in The Hague, 21 April 1999.
Following many pre-trial hearings about rules, procedure and other technical
matters, the trial of Dusko Tadic began on 7 May 1996.
Mira Tadic gave evidence to the tribunal. She had married Dusko in 1979,
after living with him for a year. At the time that she gave evidence she was 35.
She was a nurse; Dusko only had secondary school level qualifications.
Between 1980 and 1986 Tadic worked in a factory, assembling electrical
equipment. In 1986 Mira got a job as a nurse in Libya and Dusko went with
her. They were divorced in 1987 because, she explained, she wanted to get
work in Switzerland as a nurse, and it was easier for single people to get such
work than for married people. While they continued to live together, however,
she never got the job in Switzerland. In 1987 Tadic formed a construction
company which got some work in Croatia, but the business ended in the
summer of 1989. Next, Tadic spent time working on his own house, with
some periods in Germany working for his brothers construction company in
Munich. Tadic opened a caf in early 1991. Mira told of a letter that they had
received from Muslims that was threatening, saying that we should leave
Kozarac and if we did not leave Kozarac within three months that we would
be killed, and it was signed by the Young Muslims from Kozarac, that is the
party of SDA. On two occasions the shop window was broken, and at one
time the caf was broken into and burgled. Mira Tadic gave evidence as follows:
Kay: As we enter 1992 and some five months before the conflict in Kozarac,
what was the state of relations like in the town amongst the different
ethnic groups?
Mira Tadic: The relations were tense. Apparently, we would say hello
and talk, but there were no close contacts or visits. Everybody was just
minding their own business.
K: What was causing this tension?
MT: Because people were simply afraid of one another.
K: Were you or your husband adding to this tension? Were you or your
husband adding to this climate?
MT: We could not add to it because we were a minority. We were more or
less the only ones there
K: Why did you leave on 1 April 1992?
MT: Because at that time in Kozarac it was not safe any more. We were in
a minority. The Muslim people became organised. They had their barracks,
they wore uniforms, held arms. I was afraid for my life and for the life of
my children, and that is why I left Kozarac.6
The presentation of the prosecution case lasted for 47 sitting days and ended
on 15 August 1996. During this period 76 witnesses gave evidence and 346
prosecution exhibits were admitted, including video tapes of the region and a
model of the Omarska camp, together with a further 40 exhibits from the
defence. The defence case began on 10 September 1996, ending on 30 October.
Forty witnesses were presented and 75 exhibits admitted. Tadic testified for
three days from 25 October 1996.
The judgment produced by the tribunal in the Tadic case was about 120,000
words long. It is a comprehensive account of the trial and of the events for
Prosecutor v Tadic, 9 October 1996, transcript, pp 674647.
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which he was on trial. It spends many pages giving an outline of the history
of Yugoslavia and its political breakup, focusing on the growth of the idea of
the Greater Serbia and the development of ethnic cleansing as an instrument
of national policy. It is a self-conscious attempt to provide an objective,
authoritative and impartial narrative concerning the breakup of Yugoslavia,
ethnic cleansing in Bosnia and of the small part played by Dusko Tadic.
Tadic was born on 1 October 1955. His mother had been deported during
the Second World War to Jasenovac, the notorious concentration camp run by
Croat Ustasa forces in alliance with the Nazi regime. This son of a concentration
camp survivor was to become a gnocidaire and torturer himself. He came
from a prominent Serb family in the small town of Kozarac. His father was a
decorated Second World War hero. Tadic taught karate and was the father of
two daughters. Ninety per cent of the inhabitants of Kozarac were Muslims
prior to the conflict. Tadic testified that most of his friends had been Muslim.
He joined the SDS, the Bosnian Serb political party, in 1990. A witness
testified that Tadics caf became a centre for Serb nationalists, who were
becoming increasingly racist against Muslims and who used to gather there,
singing Chetnik songs. Tadics brothers ex-wife testified that Tadic admired
Milosevic, and had said that if his next child was a boy he would call him
Slobodan. After the ethnic cleansing of Kozarac had been accomplished, Tadic
became the political leader of Kozarac, was elected president of the local board
of the SDS, and was appointed as acting secretary of the local commune in
September 1992, also becoming its representative to the Prijedor Municipal
Assembly.
Tadic began service as a reserve traffic police officer at the Orlovci
checkpoint on 16 June 1992, and was thereafter assigned duties as a reserve
policeman in Prijedor. He went to some lengths to resist being drafted for
military service; when, after more than one attempt, he was successfully
drafted to the war zone, he escaped the following day and went into hiding.
He was arrested several times during the ensuing months for desertion but
always managed to escape. In August 1993 Tadic travelled to Nuremberg,
then to Munich, where he stayed with his brother, who operated a club there,
and was reunited with his wife. He was arrested by German police on 12
February 1994.
One of the central charges against Tadic was that he was involved in killing,
sexual torture and rape at Omarska. The incidents of sexual torture, as
described in the previous chapter from the account of Rezak Hukanovic, were
widely reported. In the trading of atrocity stories that surrounded the conflict
in Bosnia, the story of one prisoner being forced to bite off anothers testicle
attained a certain centrality. The tribunal found that the beatings of the five
named prisoners and of Senad Muslimovic did take place at Omarska and
that witnesses G and H at the trial, whose identities were protected, had been
compelled to and did take part in the sexual assault on Fikret Harambasic,
and that G was compelled to sexually mutilate him by biting off one of his
testicles. These events took place on 18 June 1992. The judgment describes the
assaults and the beatings in detail, relying on a large body of witness testimony.
Tadic was identified by the witnesses as being involved in the beatings.
One witness knew Tadic before they met in Omarska and also identified him
in court. Another witness had previously identified him from a photospread
procedure, an identification accepted by the tribunal. Witness Senad
Muslimovic said that Tadic was among those kicking him severely when he
was tied to a large tyre, and that Tadic threatened his eyes with a knife,
threatened to cut his throat and to cut off his ear, and he testified that Tadic in
fact stabbed him twice in the shoulder. Tadic was seen by nine witnesses on
the day of 18 June, calling prisoners out, beating prisoners, and torturing
prisoners. The judgment gives details of this testimony, with names of
witnesses and victims. Tadics defence in relation to these allegations was
that he was not present at Omarska. He said that he had never visited Omarska,
and that on that day he was working as a traffic policeman. The judges were
satisfied that Tadic did take part in the beatings and that he was present at,
but not necessarily a participant in, the sexual mutilation.
Hase Icic testified in great detail to events at Omarska on 78 July 1992. He
had known Tadic at school and had also played football with Tadics brother.
He testified that Tadic was present when he was taken into a room, a noose
was tightened around his neck, and he was beaten unconscious with iron
bars, whips made out of heavy electric cable and other weapons. The trial
chamber accepted Icics evidence. Sefik Sivac testified that he had once been
good friends with Tadic until there was an incident when he had thrown
Tadic out of his caf. He threw him out because he had been saying that there
would be a Greater Serbia, it would be theirs and that we, Muslims, will not
be there, that there will be no place for them.
Sometimes the judgment describes conflicts of evidence, places where the
evidence of different witnesses was incompatible. The judgment details the
conflicts and states clearly on which version the judges rely, if any, giving
reasons for the preference, and giving the logical process by which the tribunal
reached its conclusions. The judgment details each incident described by the
witnesses, the alleged role of the defendant, the defence argument, and then
its conclusions as to fact. Elvir Grozdanic testified that he had known Tadic
for 10 years before the war, and that he had taken weekly karate lessons from
him. He told of many abuses in Omarska, including Muslims being forced to
chew grass and grunt as pigs do and also to drink water from the ground as
dogs do. He told how he had seen a prisoner pushing an apparently lifeless
body in a wheelbarrow, and how he had seen Tadic insert the hose from a fire
extinguisher into the mouth of the body.
The defence evidence once again consisted of Tadics alibi that he was on
duty as a traffic policeman, and his claim that he had never visited Omarska.
The defence produced witnesses to say that he had often been seen at the
checkpoint, and that his superior officer had often checked to make sure he
was on duty; they testified that Tadic did not have the right to use the police
car for his own purposes, and so could not have travelled to Omarska. They
also argued that, since it is not known whether the body in the wheelbarrow
was alive or dead, then it was not necessarily an offence to insert a fire
extinguisher hose into its mouth. A number of witnesses testified that they
had seen Tadic at the Trnopolje camp. Tadic admitted having visited Trnopolje
on five occasions for innocent reasons, usually accompanying Red Cross visitors.
The judgment discusses in some detail the charge that the motivation for
the behaviour of the accused was discrimination on the grounds of race and
of politics, and was part of a plan to build a Greater Serbia without a
significant Muslim population. Tadic had been one of the early members of
the SDS, whose policy it was to cleanse the Republica Srpska. He was a
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supporter of the policy of ethnic cleansing and understood it fully Acceptance

of this policy and the discriminatory means to achieve it was considered to
be a requirement for advancement in the SDS. There was much evidence
given about Tadics personal commitment to the project of the Republica
Srpska and also about his own increasing nationalist sentiment and his antiMuslim racism.
The next charge related to the selection of five named Muslims from a forced
march on 27 May 1992. The first witness described the selection of two of his
brothers, his son and two others, who were held near a kiosk. The second
witness testified that some minutes later he saw the five men being held at
gunpoint near the kiosk. The third witness passed the kiosk a couple of hours
later. He recognised four of the five men and said that another was taken
from his column. When he was about five metres away from the men he heard
two bursts of loud firing and he saw the men falling, one remaining standing
for a few moments before he fell. All three witnesses testified that Tadic was
the one making the decisions about who to select from the column, and the
last witness testified that it was Tadic who gave the order to kill them.
Witness U for the defence testified that he was marching with the column
but that he did not see Tadic at all during that day. It came out under crossexamination, however, that U now lives in a house that belonged to a Muslim
and that was assigned to him by a Serbian committee on which Tadic used to
sit. Witness W also testified that he had not seen Tadic at all during that day;
however, two prosecution witnesses testified that they had seen witness W at
the Kereterm camp, calling people out for torture. Witnesses V and A, also
friends of Tadic, testified that they had not seen him in the town during that
day. V and W, however, did confirm that Muslims were taken out of the
marching column and killed that day. Due to some crucial inconsistencies in
the prosecution evidence relating to this incident, the trial chamber did not
find Tadic guilty of selecting and killing these men, though they are sure that
Tadic was on the scene and that men were selected and killed.
The next charge related to events in the villages of Jaskici and Sivci on 14
June 1992. Armed Serbs, including Tadic, were accused of going from house
to house in these villages and calling out residents, separating men from
women and children and killing a number of named men. The population of
these two villages had already been swollen by the arrival of a number of
Muslim refugees from Kozarac, which had previously been attacked by Serb
forces. In Sivci, 350 men were taken out of their houses after the village had
been shelled by Serb tanks. They were made to run to a collecting point and at
intervals were ordered to lie down in the road, where they were kicked and
beaten by armed Serbs. Their money and identity papers were stolen as they
were tortured. At the collecting point some were beaten again, and they were
put onto buses and taken away to the Kereterm camp.
The experience of the smaller village of Jaskici was similar. All the men
were marched away; after they had left the women of the village found that
the bodies of five of the men had been left behind. Many of the women then
left, but some remained, and witnessed the repeated return of the Serbs, who
stole everything from the houses, from tractors to liquor. Two of the older
men who had been left behind attempted to bury the bodies of the five men
but were obstructed by the Serbs and were eventually obliged to bury them
in one single grave. Subsequently all the houses of Jaskici were burnt, leaving
only ruins.
There were five witnesses, four of whom already knew Tadic, who saw
him in Sivci or Jaskici on 14 June in spite of the fact that he claims not to have
left Banja Luka. The tribunal was satisfied that Tadic was amongst the armed
men who entered these two villages. One witness, who had known Tadic,
described him beating men from the village with a stick, and pouring water
over those who had fainted in order to revive them. She also described Tadic
beating her father. She has never seen the men of her family since that day,
although she has made efforts to trace them. This witnesss sister described
Tadic beating men with a rifle butt. Both witnesses independently described
Tadic as having a beard and wearing a camouflage uniform. The other
witnesses identified Tadic, and described him taking part in classical ethnic
cleansing behaviour, beating, threatening and terrorising people out of their
houses.
Though there were some inconsistencies in the detail of the evidencefor
example in their descriptions of Tadics uniform and the uniforms of the other
armed men with himthe tribunal was satisfied that Tadic had been an active
participant in the ethnic cleansing of the two villages, but the tribunal was
not satisfied that the five men had been murdered by Tadic or the armed men
with him.
The next incident that Tadic was alleged to have been involved in was the
attack on Kozarac and the surrounding hamlets on 2427 May 1992. Witness
Q worked at the hospital in Kozarac. On the way home from the hospital on
24 May he saw Tadic with another man jumping over a fence into some
gardens. Moments later he saw a flare being launched from the vicinity of the
gardens, illuminating the hospital so that the Serbian artillery and tanks could
shell it and seriously damage it. The defence showed that witness Q had
previously given a different sequence of events in his witness statement, that
he had said that he was on his way to the hospital, not on the way home. He
explained the discrepancy by saying that he had not thought the details were
important when he gave his statement and that the account he now gave to
the tribunal was full and authoritative. The tribunal accepted Q as a reliable
witness. Other witnesses testified that they had seen Tadic in Kozarac during
the time of the attack and participating in the attack. One witness testified
that Tadic had said to him that Kozarac was going to be part of a Greater
Serbia, saying that he had liberated Kozarac and nobody is going to take
anything out of Kozarac, only over my dead body.
The judgment discusses a number of issues regarding the nature of the
evidence at the tribunal, and possible problems with it. This was the first
contested case before the ICTY. The rules of evidence and of procedure were
being developed by the tribunal and the appeals chamber during this and
following cases, aiming to draw on best practice from the worlds legal
systems.
The first problem discussed concerned difficulties regarding access to
evidence. Both parties encountered problems due mainly to the fact that the
authorities in the Republica Srpska were unwilling to co-operate with the
tribunal. Most prosecution witnesses were living in western Europe, whereas
most defence witnesses were resident in the Republica Srpska. At the trial,
use was made of video conferencing to link the courtroom with the Republica
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Srpska. Some witnesses were guaranteed anonymity, and others were

guaranteed immunity from arrest while travelling to and from the court.
The second problem concerned the lack of specificity of the charges,
particularly in terms of time. Some counts allege that crimes have been
committed on or about a particular date. This makes it difficult for the defence
to establish alibis but is, in many jurisdictions, usual practice in criminal trials.
Thirdly, the tribunal discussed the need for corroboration. The defence
argued that the court should not be able to convict when the only evidence is
from one uncorroborated witness (unus testis, nullus testis: one witness is no
witness). The tribunal rejected this principle, arguing that it is established
practice in many jurisdictions that a court may convict on the evidence of one
witness alone.
Fourthly, most of the witnesses for the prosecution were also victims of the
conflict, and the defence argued that witnesses were likely to be less reliable if
they were also from the ethnic group that had been victimised. Similarly, most
defence witnesses were Serbs, which might also be thought to affect their
credibility. The tribunals answer to this point is that the credibility of each
witness should be judged independently, after having seen their testimony
and their cross-examination.
The fifth problem was pre-trial media coverage and the infection of
testimony. The tribunal admitted that this could be a problem, and said that
they took this issue into account when deciding on the credibility of witnesses
when the issue of media coverage had been raised in cross-examination.
The sixth was the issue of identification evidence. Identification was crucial
in this case because Tadics alibi was that he was never present at the camps
and the scenes of crimes. The tribunal was able to rely upon identification
evidence of those who had known Tadic since childhood, and who were
therefore able to identify him more certainly. They also relied upon four
witnesses who identified Tadic from a series of photographs of men.
The seventh problem relating to the types of evidence available to the
international court was exemplified by the testimony of Dragan Opacic. This
incident was dramatic. Opacic was an important witness, and he made many
allegations against Tadic. One allegation was that he swore that he had been
present when Tadic murdered his father. But isnt your father still alive? the
defence asked on day three. Opacic insisted that he had watched him die.
But this man is your father, said the cross-examiner, calling to court an old
man who rushed to embrace the witness.7
The prosecution withdrew all reliance on Opacic. His identity had been
protected, and he had been known only as witness L. The defence had
managed to identify him, in spite of his anonymity, and, because of this
identification, had been able to show him to be a liar. The defence argued that
many witnesses were not investigated in the way that Opacic was, and that
others might be equally unreliable. The tribunal argued that Opacic was the
only witness who was discovered by the Bosnian authorities while he was in
custody. No other witnesses shared the same provenance and so Opacic could
be treated as an individual case. But the general possibility of problems with
Robertson, 1999, p 292.
allowing anonymity to witnesses, and with receiving witnesses from the

custody of states hostile to defendants, was well illustrated.
The eighth problem discussed was the issue of hearsay. It was decided not
to make hearsay evidence inadmissible, but to allow the tribunal to hear the
evidence and give it the weight that they judged it deserved.
All of these problems are considerable, although they are often present in
ordinary criminal trials. The judges have great power both because of the
flexibility of the rules and because of the absence of juries. Rules on
admissibility are much less strict than they are in most jury trials, because the
judges can give appropriate weight to evidence according to its provenance
and admissibility, and can trust themselves to do so in a much more
professional way than a jury. Judges, however, unlike juries, have to account
for their decisions, and for the weight that they assign to each piece of evidence,
in a detailed written judgment. Their decisions are also subject to the appeals
chamber. It is clear, however, that thoughtful, impartial and aware judges are
even more centrally important at the ICTY than in ordinary criminal trials
where there is the added safeguard of a jury.
Much time in the Tadic case, as in the Blaskic case, was spent by the
prosecution in trying to show the existence of an international armed conflict.
However, the court held, by majority, that it had not been shown in this case
that there was an international armed conflict taking place in Bosnia after 19
May 1992. There were 11 counts that relied on the fact that they constituted
grave breaches of the Geneva Conventions. Since the tribunal held that there
was no international armed conflict existing after that date and that the Geneva
Conventions only applied to international armed conflict, Tadic was found
innocent on these 11 counts.
It was also necessary for the prosecution to establish a link between the
actions of the accused and the wider armed conflict, since international
humanitarian law has no jurisdiction over crimes that are not thus linked.
Tadics actions in Kozarac, Sivci and Jaskici were clearly linked to the overall
campaign of ethnic cleansing being carried out by the Serb forces in Bosnia.
His acts in the camps established by the Republica Srpska were also clearly
carried out with the connivance or permission of the authorities, so here, also,
his crimes are directly connected to the armed conflict.
Article 5 of the Statute of the International Tribunal concerns crimes against
humanity, also proscribed by customary international humanitarian law. The
tribunal held that, since the Nuremberg charter, the customary status of the
prohibition against crimes against humanity and the attribution of individual
criminal responsibility for their commission have not been seriously
questioned. The tribunal argued that this finding is implicit in the appeals
chamber decision, which found that [i]t is by now a settled rule of customary
international law that crimes against humanity do not require a connection
to international armed conflict.8
There are many sceptical arguments put forward regarding the ICTY. The
small, unpublicised court in The Hague contrasts starkly with the oceans of
terror and misery caused by the events in the former Yugoslavia. Mladic, the
man who personally organised the cleansing of Srebrenica and the rest of Bosnia,
and Karadzic, the mad psychiatrist who was the political leader of the racist
8
Prosecutor v Tadic, Appeal 1995, para 141.
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campaign against Muslims, still enjoy their freedom. Tudjman, the architect of
the campaign of Croatisation in Bosnia and the Krajina, died peacefully in his
bed. The court in The Hague, say the sceptics, was set up by the ethical
imperialists9 who fought for hegemony in the Balkans under the cover of the
language of human rights; it was set up spuriously by the great powers in the
Security Council under the law authorising them to take measures to protect
world peace and security. The court is bureaucratic and slow. The system gives
great power to a politically motivated set of judges who are allowed to base
their decision on many kinds of evidence that would usually be deemed by
national criminal courts to be inadmissible, including hearsay, contaminated
identifications and anonymous witnesses. This sceptical argument has been
dealt a blow by the arrest of the big boss himself, Slobodan Milosevic. Many
sceptics had felt that it was impossible for the ICTY to try the real leaders, that
they would always be given de facto immunity by the great powers. The
argument, however, has simply slipped a little, and now portrays the man who
gave a million Kosovars hours to leave their country as an unfortunate scapegoat.
Alternatively, it is possible to see the ICTY as a step in an inevitable process
towards international order and human rights. The story of humanitarian
law and human rights is one of constant progress, banishing the darkness of
inhumanity from the bright new modern cosmopolitan civilisation. The law
has been written; it is in place. Finally, the world is in a position to deal with
those who seek to deny others the status of human beings.
The evidence from The Hague does not really show either of these views
to be true; or, perhaps, it shows them both to be true. The most important
thing about the court is that it exists as an empirical fact. Cosmopolitan law
cannot any longer be regarded as some sort of dream, but demands to be
recognised as a reality. It has demonstrated that it is possible for an
international court to hold trials under the universal jurisdiction of
international criminal law. There is something enduring in this demonstration.
We know that people can walk on the moon; we know that an international
criminal court is a possibility. Once these things are demonstrated to be
possible, they are possible forever.
Tudjmans successors in Croatia have grudgingly accepted the jurisdiction
of the court and its legitimacy. Mladic and Karadzic had no place at the
negotiations at Dayton, and were subsequently removed from power in the
Republica Srpska. Karadzics successor, Biljana Plavsic, now lives in a cell in
The Hague as she awaits her trial, and Milosevic is being tried. The fact that
Milosevic was indicted as a criminal must have been a significant boost to
those fighting to depose him. Even if the Serbian opposition was more
interested in his crimes against Serbs than his crimes against humanity, it
must have helped that he was officially accused by the international
community of being a criminal. It is not insignificant that these people could
not travel abroad: they could not make a living on the lecture circuit, nor
could they come to Harley Street for medical attention in their old age. It is
not trivial to be indicted as a war criminal. And the ICTY is having more
success than had seemed likely at one point in making significant arrests.
What of the charges against the court related to its flawed predecessor, the
Nuremberg tribunal? What is to be said about the tribunals foundation in a
9
Coates, 1999.
legal trick by the Security Council? What can we say about its own efficiency
or fairness as a court? These problems bring us back to the central point: that
of its existence. The court has a clear set of rules that it enforces. The provenance
of its existence and its rules may be questionable; there are answers to those
questions, however, and its existence is no longer in doubt. Neither are the
central precedents of Nuremberg any longer in doubt. Individuals are
responsible in law for their crimes, even if obeying orders, even if committed
as head of state. Crimes against humanity and genocide are criminal offences
that may be tried under universal jurisdiction. No principles in law are clearer
now than these, even if they were open to dispute in 1945.
There are some questions that may be asked about the fairness of the court.
For example, Geoffrey Robertson is worried about the lack of a clear
demonstrable physical and political separation between the prosecution and
the judges.10 We may also cite the incident of Dragan Opacic when he gave
anonymous evidence which was only discovered to be false at the last minute.
As Caroline Buisman argues, the inequality of resources available to the
defence and the prosecution, and the liberal rules of evidence, which are selfpoliced by the judges, are also possible sources of problems.11 It is an empirical
finding of this book, however, that the trials that I have observed and studied
have been relatively fair trials; that is to say, they have been unfair only to the
extent that ordinary criminal trials may be judged unfair. There is a clear body
of law and rules upon which the ICTY operates; there is the opportunity for
defendants to conduct a defence; there are opportunities to appeal against
decisions made by the judges to a separate appeals chamber; there is due
process; there are opportunities to cross-examine witnesses; there are honest
and competent judges. Of course, the fact that trials are fair and that
cosmopolitan law is clear does not tell us that there is a settled and just system
of cosmopolitan criminal law in place. But it does tell us that cosmopolitan
criminal law is possible and that it is not simply utopian.
10 Robertson, 1999.
11 Buisman, 2001.
93
Chapter Six
The Sawoniuk trial:
a cosmopolitan trial under national law
In Chapters Six and Seven, I look at two court cases that took place at the very
end of the 20th century. Both cases were concerned with one of its defining
events!, the Holocaust. One was the trial of Andrei Sawoniuk, a man who
had been involved in carrying out the genocide in a small town in Belorus.
The other was a defamation trial, in which David Irving, a British revisionist
historian, sued Deborah Lipstadt, an American academic, for calling him a
Holocaust denier. Both cases were looking back at the event from the distance
of more than half a century. Both courts, therefore, found themselves writing
the history of the Holocaust as well as judging more specific issues. Both were
judging men who had chosen to allow the genocide to define who they were,
who had been seduced by the glory and power of the Nazis, yet who were
not exactly Nazis themselves. Both trials were in Britain, perhaps the country
in Europe least touched by the events themselves.
A central task of both trials was to tell a story, or a history, of what had
happened, and to assign responsibility: to reproduce a narrative of muchnarrated events. But the courts were charged with producing narrative with a
unique form of authority. When courts make judgments they have the power
to enforce those judgments; they have at their disposal the power to award
damages as well as a monopoly on legitimate violence. Their judgments,
therefore, claim a particular authenticity; legal processes claim to be, and hope
to be recognised as, producers of impartial judgments. These cases were both
concerned with events that happened outside the territory of the UK; events,
in fact, that happened outside any particular national territory. But the
Holocaust was not only cosmopolitan in the sense that it happened throughout
Europe: it was also cosmopolitan in a whole range of other senses, which I
have discussed in this book. It was the business of the whole of humanity. So
when it is the task of courts to make judgments concerning the Holocaust,
they find themselves having to judge cosmopolitan events from a cosmopolitan
point of view: that is, from an impartial, and therefore not from a national,
point of view. These two cases had many of the characteristics of cosmopolitan
trials but were held in British courts under English law.
The main trial at Nuremberg was only the spearhead of the international
process of judging those responsible for the Nazi crimes. As well as the 12
other trials organised by the international tribunal, there were many national
post-Nuremberg trials organised by the successor regimes in countries that
had been occupied, such as Poland, Hungary, Yugoslavia, Greece, Russia and
France. These trials prosecuted those whose crimes could be localised in
particular jurisdictions.
The trial of Adolf Eichmann in 1962 was fundamentally one of these national
post-Nuremberg trials, although it had a number of peculiarities. Eichmanns
crimes could not be localised in a particular jurisdiction, since his job was in
the organisation of the genocide of the Jews across Europe. Yet he had not
been considered an important enough criminal to be included, even in absentia,
The Sawoniuk trial: a cosmopolitan trial under national law
at the time of the main trial at Nuremberg. Thus, the trial of Eichmann in
Israel follows the pattern of the other national trials. His crimes were against
Jews, and so he was tried by the national courts of the Jewish state: not because
he had committed his crimes there, but because, retrospectively, he had
committed his crimes against its citizens. The Jews, in the absence of an
international criminal court, argues Hannah Arendt, had as much right to sit
in judgment on the crimes committed against their people as the Poles had to
judge crimes committed in Poland.1
The trial of Klaus Barbie in 1987 for crimes against Jews in France, and also
crimes against the French resistance during the war, was more
straightforwardly a national trial, even though the charge was actually crimes
against humanity. Barbie had been the head of the Gestapo in Lyon, and so it
was France that assumed the right to extradite him from Bolivia and put him
on trial.
These post-Nuremberg trials have contained a strange mixture of national
and cosmopolitan law. They followed the legal precedents set by the
Nuremberg process, and they convicted for the cosmopolitan offence of crimes
against humanity. But the courts were national criminal courts and relied on
the normal processes and institutions of criminal justice. There was always a
tendency for the trials to drift back from a cosmopolitan to a national
perspective. Arendt was critical of the Eichmann trial when it drifted away
from its central concerns with Eichmann and the Holocaust towards issues
more concerned with Israeli nationalism and the legitimacy of the state of
Israel, and when it glossed over issues concerned with Jewish collaboration
with the Nazis.2 Alain Finkielkraut, similarly, was critical of the Barbie trial
when it drifted away from its cosmopolitan focus towards the needs of French
nationalism and the continuation of the French national myth of resistance to
Nazism.3
The trial of Andrei Sawoniuk in 1999 may also be seen as a Nuremberg
successor trial. It was, however, carried out in Britain, not because the crimes
were committed in Britain or against British citizens, but because Sawoniuk
himself had settled in Britain and had British citizenship.
Since the Nuremberg trials, it has been an accepted norm of international
law that jurisdiction over war crimes and crimes against humanity is universal.
Such crimes, like those involving slavery and piracy, are understood in
international law as an attack not only on the particular state in which they
were committed but also on the international order. Any state, therefore, has
the right to try a suspect for such crimes under the universality principle.
However, when the British Home Secretary, Douglas Hurd, was faced with
calls for the prosecution of suspected war criminals living in Britain in February
1998, he summarised his position as follows:
We would normally deal with alleged crimes in foreign countries by way of
extradition. However, all the cases in question relate to crimes committed in
territories now controlled by the Soviet Union, with whom we have no extradition
treaty. Nor do the courts in the United Kingdom at present have jurisdiction to
1
2
3
Arendt, 1994a, p 258.

Arendt, 1994a.
Finkielkraut, 1992.
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tryoffences of murder and manslaughter committed abroad when the accused was
not a British citizen at the time of the offence. If we were to prosecute in these cases
we should need to legislate to extend the jurisdiction of our courts.4
He set up an inquiry that proposed new legislation to empower British courts

to utilise a jurisdiction already available to them under international law.5
Under international law, Sawoniuk could have been put on trial at any time
since he entered Britain in 1946. Authority for such a trial was only granted
under UK law by the War Crimes Act 1991. This Act limited the charges that
a suspect could face to murder or manslaughter in contravention of the laws
and customs of war, and so did not allow suspects to be charged, more
appropriately, with crimes against humanity or genocide.6
Sometimes the USA,7 Canada and Britain have simply deported suspected
war criminals without a full trial, thus exposing them to whatever
consequences they might have to face in the country to which they are
deported. The British, by passing the 1991 Act, took responsibility to try such
suspects themselves, even though they subsequently deported Konrad Kalejs
in January 2000, claiming that there was insufficient evidence for a trial,
although it seems that they had not searched very hard for such evidence.8 It
must be right only to contemplate deportation to jurisdictions able and willing
to conduct a fair trial. Where this is not possible, a trial rather than a deportation
must be preferable. There had been one prosecution in Britain under the 1991
Act before the Sawoniuk trial, that of Szymon Serafinowicz, but the trial was
abandoned when the defendant became ill. This decision was vindicated when
he died shortly afterwards.
The trial of Sawoniuk was a hybrid of national and cosmopolitan law. It
was tried under English law and in a British court; but the crimes had not
been committed in Britain, so the legitimacy of the trial relied on the fact that
such crimes, according to the principle of universal jurisdiction, may be tried
anywhere and by any state.
The ordinary and extraordinary Andrei Sawoniuk

Andrei, Andreivich or Anthony Sawoniuk was, in many senses, an ordinary
man. Physically, he was not tall. Aged 78 at the time of his trial, he had white
hair which was carefully barbered, and a round baby face with blue-grey
eyes peering through his up-to-date glasses. He was always dressed smartly,
4
5
Hansard, 1988.
[T]o enact legislation in this country to give the British courts jurisdiction over murder and manslaughter
committed as violations of the laws and customs of war would not be to create an offence retrospectively.
It would be making an offence triable in British courts to an extent which international law had recognised
and permitted at a time before the alleged offences in question had been committed. Report of the War
Crimes Inquiry, 1989, p 97, para 9.27.
The report argues that any attempt to legislate to provide for prosecutions with respect to acts of genocide
allegedly committed during the Second World War would be retrospective, since genocide was not defined
as an offence in international law until 1948. Report of the War Crimes Inquiry, 1989, p 96, para 9.23.
[T]o this day, crimes against humanity have not been incorporated into the federal law of the United
States. Instead, the INS sought to deport resident aliens or naturalised citizensnot as war criminals, but
as persons who lied on their emigration forms and thus never should have been permitted to enter the
country in the first place. Douglas, 2001, p 197.
Dodd, 2000.
in a blazer, creased trousers, and shiny shoes, like the old Polish soldier and
British Rail ticket collector that he was. He limped, and used a stick, but did
not seem particularly fragile. He seemed to be a man who knew how to look
after himself. He sat in court next to his solicitors, not in the dock, since he
was on bail. He followed the transcript of the proceedings as it appeared on
the laptop computer in front of him. He occasionally whispered, rather loudly,
perhaps because of his partial deafness, to his solicitors. They seemed friendly
and called him Tony. Not once in the whole trial did Sawoniuk look to his
right towards the press gallery, or to the public gallery above it.
He was born in Domachevo, a small, ordinary town that is currently in
Belorus, near Brest-Litovsk, and that was just inside the Polish border of the
old Soviet Union. When he was born there on 7 March 1921, it was in Poland.
Domachevos main business was tourism. It had a spa and some hotels and
guest houses. Domachevo conformed to the strange ethnic division of labour
that was common in eastern Europe. The town itself was almost entirely
Jewish, while the surrounding villages where the peasants cultivated the land
were almost entirely non-Jewish. The Jews supplied goods and services to
the farmers, as well as to visitors. The farmers sold their produce to the Jews
in the market. Everyone who testified at the trial, the non-Jewish witnesses
and Ben-Zion Blustein, one of the very few surviving Jews from Domachevo,
said that the two populations lived together in harmony. As well as the Russian
Orthodox church in Domachevo there was a Catholic church, where those
who considered themselves Polish worshipped. Domachevo was a town like
many hundreds of others that was soon to be engulfed by the Shoah in an
entirely typical way.
Sawoniuk himself was born, and lived his childhood, outside the
established division of labour, or perhaps underneath it. His family did not
have land to tend, and so they lived in the town itself. His mother made a
meagre living by doing laundry and other casual work for Jews, and when he
was old enough he also worked for Jews, doing odd jobs where he could find
them. He never knew his father, and his mother died when he was a child. He
was regularly called a bastard and was subjected to a certain amount of
bullying on that account. After his mother died he lived with his grandmother
and his brother Nikolai, or Kola. For these reasons he must have experienced
a certain amount of alienation from the society in which he lived and in which
he did not really have an established place. He left school at the age of 14. He
was known by everyone in Domachevo simply as Andrusha, a diminutive of
Andrei; Little Andy. He was still known by this diminutive when he was the
commandant of the local Nazi-organised police force.
The German invasion of Russia started on midsummer night 1941, and
within hours had swept well past Domachevo, which was one of the first
small towns it encountered. Within a very few days, the Germans had
organised a local police force that Sawoniuk and a handful of other local men
joined enthusiastically. He was 20 years old and had experienced two very
difficult years under Russian occupation. For the first time in his life he had a
job, and a place in the world.
Sawoniuk has lived in Britain since 1946. He moved around a little, mainly
on the south coast, before settling in London, just off the Old Kent Road. He
worked for British Rail, and retired in 1986. He married twice after the war,
both short marriages, and had a son with his second wife, but they parted
97
98
shortly after his birth. In Britain he has been, as the police testified, of good
character.
On 9 March 1999, he appeared in court 12 at the Old Bailey. In many ways
it was a routine trial. The defendants in the courts next door were accused,
one of rape, and the other of murder. There was no bulletproof glass screen to
protect him from assassination. There was no simultaneous translation
apparatus in the courtroom. It was the usual English courtroom. The barristers
wore wigs. The judge sat underneath the large royal crest on the front wall in
his rather grander wig. Sawoniuk was not accused of anything exotic or unBritish like genocide or crimes against humanity. He was accused of four counts
of murder contrary to the common law under the conditions specified in the
War Crimes Act 1991. The ad hoc tribunals for the former Yugoslavia and for
Rwanda have recently convicted for both genocide and crimes against
humanity;9 and Belgium has shown that it is possible for national courts to
make convictions for genocide.10 The fact that Sawoniuk was simply charged
with murder, albeit with conditions attached, added to the impression that
this was an ordinary Old Bailey trial.
For the individuals involved in the rape and murder trials in the
neighbouring courts, however, those cases were in no way routine or mundane.
They concerned events that must have made profound changes to the lives of
those affected. Criminal trials give extraordinary events a routine form: they
abstract them, shape them and civilise them. The rapist and the murderer, as
well as Sawoniuk, both wore shiny shoes and well pressed suits. Their counsel
spoke for them eloquently and persuasively. The judges politely offered them
drinks of water. If the Sawoniuk trial was made to look routine, that is partly
because that is a general function of a criminal trial. But the contrast between
the businesslike quality of the trial and the horror of the events that it concerned
was greater, because the events were extraordinary in a more profound sense
than an ordinary rape or murder.
There are many senses in which this trial was entirely extraordinary. It was
the first and only trial to be completed in Britain of someone accused of taking
part in the Nazi genocide of the Jews. It was the only prosecution under the
War Crimes Act 1991. It was the only time that a British court has sat in
judgment of crimes committed outside Britain, and the only time a British
court has travelled outside Britain. The trial happened 57 years after the crimes
in question. The crimes were part of the Holocaust, which is perhaps the
biggest and most extraordinary crime yet committed.
This juxtaposition between the ordinary and the extraordinary is a theme
that runs throughout this particular trial, and it echoes a similar dialectic that
many have detected within the Shoah itself. Claude Lanzmann11 is fascinated
by the ordinariness of the trains that transported so many to their deaths.
Zygmunt Bauman12 focuses on the bureaucratic individuals and procedures
that organised the mass killing. Karl Jaspers13 and Hannah Arendt14 wrote
about the banality of evil.
9
10
11
12
13
14
Eg Prosecutor v Kristic.
Le Monde, 8 June 2001.
Lanzmann, 1985.
Bauman, 1993.
Arendt and Jaspers, 1992.
Arendt, 1994a.
Sawoniuk was an ordinary kid, a nobody who joined the police force in
order to become a somebody When the real function of the police force became
clear, some, including his brother, left; he chose to stay. When the Einsatzgruppe
came to town to kill the Jews on Yom Kippur 1942, Sawoniuk helped. The Nazis
left to kill the Jews in the next town, and the local police were left the job of
hunting and killing those who had escaped the main massacre. Sawoniuk took
a central part in this hunt and kill operation for a few months until it was
complete. He killed maybe 50 or 100 or 200 Jews at this time, and he did so with
more enthusiasm than most. There must have been many tens of thousands
like him. They were a necessary part of the machine that committed the genocide.
It was the locally recruited police forces who knew the Jews, and who knew
where they might be hiding, much better than the invaders did. When it was all
over, he found a life for himself in Britain, and lived it. On 21 March 1996, he
was arrested by Metropolitan Police detectives, interviewed, and put on trial.
It was William Clegg, Sawoniuks barrister, who raised the question of
Sawoniuks ordinariness. One of Cleggs central strategies was to try to make
the prosecution look ridiculous and far-fetched. He often employed an ironic
and satirical tone, and with some success; he is a warm, witty man with a
sense of comic timing. The prosecution presented the enormous tragedy of
the Holocaust. The barrister for the Crown, Sir John Nutting, a stereotype of
an English establishment figure, tall, with an antiquated upper class accent,
slow and methodical, had begun his case. He had used Christopher Browning
as an expert witness to paint an outline of the Nazi plan to kill the Jews, of its
development and execution. He had followed Browning with a succession of
elderly witnesses. All these witnesses told the same background story, about
Sawoniuk, about the German invasion, the setting up of the local police force
and the ghetto, and most had added a particular testament to particular
atrocities committed by Sawoniuk. Clegg constantly had to try to change the
mood of proceedings for the jury He had to pull their attention away from the
greatest crime in human history and towards the specific charges made against
his particular client. He pleaded with the jury, as follows:
Lets be realistic and sensible. It was a ramshackle defence unit. He was just an
ordinary policeman. He was no decision maker. There was nobody of lower rank
than him. He was 20 or 21 years old. You may have felt that theres been an attempt
to elevate his position. What has Brownings evidence about Hitler and Himmler
to do with him? Hitler didnt have a hot-line from Berlin to his hut in Domachevo.
Its like comparing Churchill to Pike in Dads Army!15
Later, in his closing statement, Nutting, the prosecutor, returned to Cleggs

Dads Army theme and to Brownings evidence:
He told us of the Einsatzgruppen and their murders in the Brest region: 1,280 Jews in
July; 3,123 Jews in August. You have heard eye witnesses views of the ghetto. Mr
Blusteins evidence of the fear, deprivation, restrictions, confiscations, collapsing
morale, the preparedness for collective death. The ghetto was policed from the
new police station at its gate. The defendant and Kazic Millart beat up Rachel
Schneider for smuggling potatoes. The police patrols to prevent escapes, [with
rhetorical force] This defendant was no Pike! This police unit was no Dads Army!16
15 19 March 1999. This date and those that follow in the footnotes to this chapter refer to the authors notes,
taken while attending trial. The dates refer to the relevant days of the trial.
16 24 March 1999.
99
100
Inevitably, the trial raised the question of responsibility for the genocide. Who
was responsible? Who can be responsible for a crime so huge that it can only
be perpetrated by the mobilisation of the resources of a whole state? Daniel
Goldhagen17 argues that the responsibility for the Holocaust rests firmly with
Germany, the German people, and their political institutions. They are the
ones who are responsible. They were Hitlers willing executioners. Indeed,
Nutting made use of Goldhagens phrase in his summing up:
the defendant played an effective part in the search and kill operation after 20
September 1942. Hitler needed willing executioners. The Crowns case is that the
defendant in one town and with the killing of a limited number of Jews played a
part, however small, in carrying out this policy.18
Goldhagen wrote his book in order to prove German collective guilt, and
thereby everyone elses collective innocence, yet Sawoniuk was not German.
In Domachevo, the main massacre of the Jews was carried out by a unit of
Einsatzgruppe men, who were German. They were assisted by a number of
Ukrainians, and also by the local police. It is inconceivable that Sawoniuk
was not present, since he was an important member of the local police, and
this was the biggest event requiring policing. He claimed that, by chance, he
went away for the weekend to visit friends. (I cant remember the name of
their village, I cant remember the names of the friends.) Yet the central
perpetrators of the main massacre were indeed German. This was a theme
that Clegg touched on more than once: the Germans killed the Jews; the local
police carried out normal police duties and the war against the partisans.
This, however, was not true. Germans led the killing of the Jews of Domachevo,
perpetrated the massacre, but relied on Ukrainian and local support both for
the main massacre itself and also for the subsequent search and kill operation.
It is the function of the court of law to extract Sawoniuk from the enormous
machine of the Third Reich. The Nazi movement committed the crime, but in
a court the individuals who were part of that movement are transformed
from footsoldiers and bureaucrats back into responsible human beings. The
extraordinary history of Europe in the middle of the 20th century had
transformed Sawoniuk as a young man from an ordinary human being into a
sadistic killer. He had succeeded in transforming himself back into an
unremarkable railway worker after the war. But the court demanded more of
him. It demanded that he take responsibility for those crimes he had committed
during the time when he was part of the genocide machine.
At one point during his cross-examination Sawoniuk lost his temper. He
shouted at the jury:
Andrusha Andrusha Andrusha. They say only Andrusha Andrusha. No one else
killed no one. Only Andrusha. Everyone else just watches and claps. Only they
pick on me.19
Nutting might have replied: No, Mr Sawoniuk, it isnt fair, is it? So many
were guilty and it is only Andrusha who stands trial. There must be many
thousands of old men in Europe who committed crimes worse than those
committed by Sawoniuk. Some of the members of the Einsatzgruppe who
17 Goldhagen, 1996.
18 24 March 1999.
19 22 March 1999.
actually committed the main massacre in Domachevo must still be alive,

reading about the case in the newspapers. So Sawoniuk is certainly unlucky
to be held accountable in this way.
The Sawoniuk trial was emphatically a post-Cold War trial. The KGB
(Committee for State Security) had been interested in Sawoniuk since their
forerunners had first carried out investigations during the Russian
reoccupation of Belorus in 1944. But it was not until 1959, when they
intercepted a letter that Sawoniuk wrote to his brother Kola, that they knew
he had settled in Britain. It was only in 1988, at the very thaw of the Cold War,
that they passed Sawoniuks details to the British Government. It took the
British another two years to trace him, because they had more important
wartime criminals to chase, and also due to a mistranslation of his name.20
The trial required the co-operation of Belorussian, Russian and Polish
authorities. It is difficult to imagine the old Soviet Union allowing British
police officers to interview suspects, or a British court to sit in Domachevo.
Sawoniuk was charged with four counts of murder contrary to the common
law. In order to convict under the War Crimes Act 1991, the prosecution had
to show:
(a)
(b)
(c)
(d)
The crime was committed during wartime (193945).

It was committed in the territory occupied by Germany.
It was in violation of the laws and customs of war.
The defendant lived in the UK before 1991.
Each count related to an incident of murder, and each was alleged by a different
witness.
Following the testimony of the expert witness, the whole court travelled to
Domachevo: the judge, the lawyers, the jury, the stenographers, court officials
and the press. The court list at the Old Bailey in London read Court sitting in
Domachevo. During his opening statement, Nutting had given the jury many
photographs of Domachevo and had taken much time going through them,
explaining each one. There were aerial photographs, including one taken by
Allied bombers during the war, photographs of the town as it is today, and
photographs of the paths travelled by the witnesses who alleged counts of
murder. During the trip to Domachevo, the court followed the paths travelled
by the witnesses and gained an overview of the town. Fedor Zan, a central
witness, had been sworn in before the trip, and showed the jury where he
had seen Sawoniuk shooting people.
Domachevo was under snow at the time of the visit. Much effort seems to
have been made to keep the jury away from contact with the press and the
locals. A newspaper report tells that the jury were held virtual prisoners in
the Intourist Hotel, a hostelry exuding all the charm of a tax office while the
prosecution and defence teams enjoyed the hospitality of the only Indian
restaurant between Warsaw and Moscow. The same report tells us that during
the tour of Domachevo, Nutting strode about in the manner of a grand
Shakespearean actor-manager, puffing on his pipe; the judge wore a pointed
red hat with ear-flaps as though it were an Arctic-grade judicial wig, and
Clegg made do with a brightly patterned Austrian ski jacket.21
20 Cesarini, 1999.
21 Hamilton, 1999.
101
102
The problems involved in the Sawoniuk prosecution may be divided into

two types. First there are the problems that relate to the legitimacy of the
whole legal process, and secondly there are the practical problems. I have
discussed many of the first type already in this book, such as problems of
individual responsibility, charges of victors justice and tu quoque, and the
impossibility of rendering justice in a court for crimes on such a scale.
Some of the many practical problems that arose in this case will arise
routinely in cosmopolitan trials, while some of them are specific to this trial.
In an ordinary murder investigation, the police may have control of the crime
scene, often very soon after the crime is committed. This is unlikely to be the
case where the crime is being carried out by a social formation that has state
power. Thus the immediate identification and interviewing of witnesses and
suspects will often be more difficult, as will the gathering of fresh forensic
evidence. Another difference is that in an ordinary murder investigation, it is
unlikely that there will be widespread support for the murder among potential
witnesses, as there may be in these cases. In the Sawoniuk case, nearly all the
possible Jewish witnesses were dead, as a result of the crime. In this case, the
crime was being investigated by the British police, but within the jurisdiction
of Belorus and of Poland. Potential witnesses were always interviewed in the
presence of officials of the local state. Clegg22 said that he felt that potential
defence witnesses were intimidated by local officials, who were keen to secure
conviction. This intermeshing of different jurisdictions is likely to be a common
source of problems in these cases. The jurisdiction that is carrying out the
investigation does not hold state power.
Difficulties of communication will also be a frequent problem faced by
these trials. Often, evidence and interviews have to be mediated through
interpreters. At the least this is a source of great expense, and may present
more fundamental barriers to the process.23
There was a further practical problem in the Sawoniuk case which, it is to be
hoped, will not arise commonly: that is the problem of the trial taking place
so long after the crime. All the witnesses were elderly, struggling to recall
details of traumatic crimes that they committed, witnessed, or suffered from
as young people. Their memories must be mediated by 57 years of
remembering and retelling the story and of hearing accounts, gossip, and
accusations. The accuracy of the memory of witnesses is often an important
issue in criminal trials; the problem was exacerbated in this trial by the
unusually long time gap between the crimes and the trial.
22 Interview conducted by the author in The Hague, 21 April 1999.

23 In a study of court proceedings in the USA which used translators, Susan Berk-Seligson found that the
process of translation could pose a number of problems. Interpreters, she found, can skew the meaning or
the presentation of evidence or of questions. For the most part these changes are made unconsciously. On
the whole, when interpreters make such fine alterations in the conversion of one language to another they
seem completely unaware of the important impact that these alterations can have on judges and jurors.
On the other hand, an interpreter who has either unconscious or conscious biases can take full advantage
of such linguistic mechanism to suit her own purposes, and where there is a conflict of interest but it is not
perceived as such by court personnel, the interpreters interpretations can and do serve to slant what a
speaker is trying to say. Berk-Seligson, 1990, pp 23.
Ben-Zion Blustein: Holocaust memoir and legal testimony

On its return from Domachevo to the antique wood panelling of the Old Bailey,
the evidence presented by the prosecution started with the only Jewish witness,
Ben-Zion Blustein. Blustein seemed to me to be a typical Jewish Holocaust
survivor. He appeared tough, but now old and a little stiff. He had a definite
confidence in his story, combined with a nervous vulnerability; the
vulnerability of one who knows that nothing in life is safe and that no safety
is absolute. Many Holocaust survivors have a typical way, a genre perhaps, of
telling their story. What made Blustein so uncomfortable in the Old Bailey
was the fact that he was not allowed to tell his usual story. Blustein has told
his story often. He has told it at Yad Vashem. He has told it to a ghostwriter
who created a book from it. He has told it to students and to schoolchildren.
He has told it to family and to friends.
Primo Levi24 writes of the way in which his inner drive to tell of what
happened at Auschwitz was part of his motivation for keeping alive. He also
writes of the importance of testimony, and the importance of being believed.
His recurring nightmare at Auschwitz was to tell his story to friends and
family and for people simply to ignore his voice, or not to hear his voice; the
fear that people on the outside, in the real world, would be incapable of
even hearing; the fear that Auschwitz was, literally, another universe.
Blustein must have been telling his story, attempting to represent the dead
Jews of Domachevo and of Europe, for his entire adult life. It is certain that
when he does so in Israel, he is met with silence, with sympathy, and with
sorrow. He is a survivor-hero in Israel, amongst Jews, and to anyone with any
kind of human feeling who hears his story.
However, a court of law is not guided by human feeling; it is guided by its
own rules and function. The court was not centrally interested in Blustein, but
was focused on Sawoniuk. The court was not interested in the thousands of
dead Jews of Domachevo, but in the 21 Jews who were mentioned in the
indictment. The prosecution was only interested in the parts of Blusteins story
that it wished to use to construct the case against Sawoniuk. It was not interested
in Blusteins dreams and his fears and his demons. It was not interested in his
philosophising, or his anger, or his last conversation with his mother.
Cross-examination is Primo Levis nightmare come to life. An educated,
intelligent, articulate person is paid by the state, in the interests of the Nazi
killer, to act the part of the friend who refuses to hear.
The British court was making great efforts to appear disinterested and
neutral; simply balancing the arguments. It appeared almost embarrassed by
Blusteins Jewishness. When the jury had been sworn in at the beginning,
they were told that if any of them had relations who had suffered in the
Holocaust, they should excuse themselves from service. Probably, then, there
were no Jews in the jury; Jews were considered unsuitable to serve on such a
jury. Jews, as witnesses, or as jurors, were suspected of being unable to put
aside their feelings, as the jury was asked to do both by the prosecution and
the defence in summing up.
24 Levi, 1987.
103
104
It seemed to me that Blustein was one of those Israelis who feels that the only
safe place for Jews is Israel, more particularly that Israel is the only safe place for
him. Being a witness in this court, and undergoing cross-examination, must have
been, and indeed appeared to be, an unpleasant and uncomfortable job for him.
Dan Stone writes about Holocaust memoir, and the ways in which many
historians of the Holocaust have undervalued survivor testimony in relation
to more solid types of evidence such as documentation.25 Jean-Franois
Lyotard has argued that a part of the enormity of the crime of the Shoah was
that it eradicated the witnesses and the evidence, making it impossible to
reconstruct or represent the events exactly. Stone quotes Lyotard as follows:
The perfect crime does not consist in killing the victim or the witnessesbut rather
in obtaining the silence of the witnesses, the deafness of the judges, and the
inconsistency (insanity) of the testimony.26
Stone adds that:

In other words, it is the attempt to gain cognitive control over the events of the
Holocaust, to master them by fitting them into existing narrative frameworksthat
really constitutes a wrong [tort] to the victims. In attempting to counter this wrong,
Lyotard puts forward the notion of the Holocaust as a sublime event, a sign of
history which must be felt rather than known, because the magnitude of the
event has rendered the usual instruments of measurement obsolete.27
Stone argues that survivor testimonies, full of both traumatic truth and factual
inaccuracies, transcend traditional forms of writing histories, that:
testimonies make more clear than other evidence why the excess of the Holocaust
breaks the bounds of normal philosophy of historyand that this is the primary
reason why historians tend to shy away from testimonies28
Many have been critical of attempts to capture the Holocaust, or elements of

it, by means of representation.29 Hence Theodor Adornos proposition30 that
there can be no poetry after Auschwitz. Hence Lanzmanns refusal to use
archive footage or reconstruction in his film Shoah,31 and his outrage at
Spielbergs Hollywood production.
The court required a different method of finding and understanding the
truth. Different from Lyotards feeling of the event; different from survivor
memoir; different from Lanzmanns cinematic presentation of carefully
produced and edited memoir; different from Spielbergs representation;
different from academic historical investigation.
Academic historical representation, and analysis of documentary evidence,
was fine for briefing the jury on the background to Sawoniuks crimes, and
this task was carried out by Browning. But to convict the defendant, the court
required direct witness testimony. This testimony, it is hoped, is rendered
profoundly different from the memoirs of survivors by the process of crossexamination. Some documentary evidence, so valuable to historians, was
25
26
27
28
29
30
31
Stone, 2000, pp 21934.

Stone, 2000, p 220.
Stone, 2000, p 220.
Stone, 2000, p 229.
See discussion in Bernard-Donals and Glejzer, 2001.
Adorno, 1973.
Lanzmann, 1985.
rendered inadmissible by the court in the absence of the testimony of the

individual who created the document.
One document in particular, discovered in a German archive, later became
the subject of much argument. It was a document that threw light on
Sawoniuks life in the period after his time as a policeman in Domachevo
when he committed the crimes of which he was accused by the court. The
document showed that he had retreated with the German forces when they
were pushed out of the region by the Russian counter-offensive, and that he
quickly became a member of a Belorussian unit of the SS (Schutzstaffel). The
judge ruled that this document was inadmissible as evidence since its
authenticity could not be verified by a direct eye witness; presumably the
creator of the document was long dead.
This document did not help us to know whether Sawoniuk was guilty of
the four counts of murder in Domachevo. But it did tell us that he was, or
became, a Nazi; and that he won sufficient trust from the SS while he was in
Domachevo for them to recruit him as a member. Moreover, this unit of the
SS was later involved in perpetrating atrocities in the Warsaw region; and it
was subsequently moved to France to conduct the war against the partisans,
a job that Sawoniuk had been learning in Domachevo. It was in France that
Sawoniuk joined the Free Polish army, telling them that he had been a member
of the SS. We know this from another document, his Polish army record, which
was also inadmissible. We also know that this unit of the SS suffered from
many desertions in France at this time.32
These two documents on their own might be enough for an observer who
was persuaded that they were genuine to come to the decision that Sawoniuk
was, at least, a Nazi, and almost certainly a mass killer. The jury was allowed
to know none of this. I do not know, either, how many other incriminating
but inadmissible documents were turned up by the police investigation. The
prosecution, in fact, managed to leak some of this information to the jury
during its cross-examination of Sawoniuk, but technically this evidence was
inadmissible and the jury was instructed to ignore it by the judge in his
summing up.33 For this court, the available documentary evidence was not
considered sufficiently safe evidence on which to base a conviction. Eye
witness testimony was required, given in specific and controlled circumstances.
It was necessary for the evidence to be immediate, given in person, and
available for cross-examination.
32 According to the Report of the War Crimes Inquiry, 1989, it was common practice for men who had been in
auxiliary police or militia units in the occupied territories to be recruited into the Waffen SS, rather than
the Wehrmacht, when the Germans retreated (p 90, para 9.2). Some fighting units were designated SS
units, but were used simply as part of an army. (p 3, para 1.13.) It is only possible to imagine what
connotations the words Waffen SS had for the jury, especially when it became clear that they were not
really supposed to have heard them.
33 Anglo-American adversary procedure organises the trial as a battle of wits between the prosecution and
defence, with the judge acting as their referee, constantly deciding what line of questioning and what
material should be allowed to enter the minds of the jury. Yet the judges authority in this respect may be
more official than real: a skilful lawyer will be able to make his point before his adversary can open his
mouth to object. The resulting wrangling on admissibility and the judges ritual exhortation in summing
up what points to disregardfor example, the political loyalties of the defendant in an espionage trial
only make the forbidden fruit more tempting to the jury than all the rest. Kirchheimer, 1969, p 342.
105
106
In the appearance of Blustein as a witness, we can see the difference between

the memoir and oral testimony of a survivor-hero, and the admissible legal
evidence required by a court of law. Blustein gave evidence in Hebrew through
an interpreter who stood next to him. He was two years younger than
Sawoniuk, and had known him as a child. He told the court how he
remembered playing with Sawoniuk and his pigeons as a child. I never let
no one play with my pigeons, retorted Sawoniuk later, under crossexamination, denying ever having met Blustein, or anyone else who claimed
to know him in Domachevo during his childhood.
Blustein recalled the general atmosphere of fear in the Jewish community
before the German invasion of 1941. Occupied Poland was, literally, a stones
throw away across the river. He told how he remembered the invasion. He told
how the Germans, immediately after they arrived, killed the Rabbi of Lubatov,
who used to spend his summers in Domachevo, along with 40 of his followers;
they killed a few other leading Jews as well. Blustein told of the creation of the
local police force, and how Sawoniuk joined at the outset. He told of the
establishment of the ghetto in Domachevo three weeks after the invasion; how
it was fenced in with barbed wire, and how the police station was moved to a
building at the gate of the ghetto; how Jews were forced to wear yellow stars,
and not allowed out of the ghetto; how the morale of the Jews of Domachevo
decayed with hunger and disease until the living envied the dead.
Blustein told how, on the Friday before Yom Kippur 1942, Jews were ordered
to obtain shovels and present themselves. And how they were then ordered
to dig mass graves in which to bury large numbers of prisoners. And that
shortly afterwards the ghetto was surrounded by Ukrainians and Germans
who had arrived from out of town. And how his mother was almost certain
that the Jews were going to be killed, and so they hid in a previously prepared
hiding place in the cellar of their house in the ghetto instead of reporting for
parade as ordered on Yom Kippur. I reproduce my notes from the trial:
Nutting: What did you hear?
Blustein: At this stage of my testimony is the most difficult time of my
life. I dream about it. Think about it every day. I had a dilemma whether
to come to this trial. It is difficult to talk
N: [to interpreter] We would be grateful to have his testimony. [Blustein
still talking about his difficulties, dreams, and so on. Clegg shakes his head sadly
as if to say that this display of emotion must stop.]
Judge: [politely, gently] Answer the questions directly.
B: We heard lots of shooting. Shots and cries. We understood what was
happening there.
Judge: Answer the question only; what you heard.
N: That evening, after the shooting stopped, did you hear anything to
indicate that those who had left that morning had returned to their homes?
B: No.
N: What did you decide to do?
B: Where could we go? If theyd done this here theyd have done it
everywhere. [He explains that the family decided (led by the mother) to commit
suicide.]
N: Your stepfather had access to drugs at the clinic?
B: He had a bottle of morphine and some powder. We took leave of one

another. My father swallowed the morphine and we swallowed the drug.
My stepfather was the only one who died. We remained in hiding for the
next eight days. Mother decided to cut our veins. Or could we burn down
the ghetto at least? We came out to burn down our house but then realised
there were others alive in hiding
N: [interrupting] What did you do?
B: My mother said to me dont kill yourself. Maybe you can live. I said
Mummy how can I leave you? She ordered me to leave. I departed from
my mother and the children. I left the hiding place and fell down and
fainted, I dont know for how long. I went up to the attic. This took me
some time. I was very weak. I remained there for two days.
N: What did you see through the tiles?
B: I saw the Ukrainian police take out a Jew, 80 years old, named Shaya
Idel. This happened 20 metres away. He was wearing his prayer shawl and
tefillin. He was carrying a book, I imagine the Talmud. His prayer shawl
was red with blood. The police were following him, stabbing him with
their bayonets. They set fire to his beard and sidelocks. He didnt cry out.
N: Did you recognise anyone who took part?
B: Andrushaand many others. They dragged him away.34
The court listened in silence. Blustein was emotional, and tired. The mediation
of the interpreter made everything slower and more difficult. This was Blusteins
Holocaust memoir. Undoubtedly he had told the story many times before.
Blustein wanted to tell his story and the story of his family and of the Jews of
Domachevo. All the emotion made the court, the legal process, uncomfortable.
The two lawyers and the judge were constantly having to encourage Blustein
to answer the questions, to allow the court and its rules to take the lead, to be in
charge. Blustein wanted to tell his story, but the court wanted to hear evidence.
Only after many hours of testimony did Blustein mention Andrusha, in
passing. Sawoniuk was not charged with killing Shaya Idel. Yet Blustein, with
one remark, had clearly implicated him in this murder. Did Blustein really
remember Andrushas presence at that particular incident, 57 years on, after
having hidden in a cellar for nine days without food or drink, after having
taken drugs to kill himself and then spending two days semi-unconscious?
Now, at this trial, Sawoniuk was central; but at the time, for Blustein, it was
Shaya Idel who was central, and Andrusha was no more important than any
other policeman or soldier present. Can we be sure that he accurately
remembered Andrashas presence? The jury was being presented with
inadmissible evidence as to Andrushas guilt in a murder of which he was
not accused. No one can doubt that Idel was taken off and killed. Yet there
was no evidence.
Later in the trial, Clegg was to argue for the judge to throw out the whole
case against Sawoniuk for reasons such as this. There were other murders in
which Sawoniuk was implicated by witnesses but not charged. This evidence
was therefore inadmissible and, argued Clegg, highly prejudicial. And when,
in the end, the jury came to consider Sawoniuks guilt or innocence for the two
remaining charges, they must have been influenced by evidence such as this.
34 24 February 1999.
107
108
They were able to say to themselves: We know Sawoniuk is a killer and a

torturer; we must therefore take the opportunity of convicting him on the
two charges, whether we are convinced of those two particular charges or
not. In normal life, we put together many disparate pieces of doubtful
evidence to make a whole. We add them up. In court, doubtful evidence
detracted from, rather than added to, the clarity of the truth.
A German truck had entered the ghetto while Blustein was watching and
wondering what to do. It had a number of Jews on the back, who jumped off
the truck and went to collect some personal belongings, bedding and such
like from their houses. They had been saved by the Germans to use as slave
labour. Blustein was able to join the group and thereby secure work for the
German mounted police unit, looking after their horses.
While Blustein was working at the base, he saw a Jewish friend of his, Mir
Bar las, after he had been captured and interrogated. The murder of Mir Barlas
constituted count four of the indictment against Sawoniuk:
Nutting: In what condition was he?
Blustein: Very bad. I saw him after a German interrogation. The Germans
gave him to the Ukrainian police.
N: Whose custody?
B: A number of policemen. Amongst them was Andrusha Sawoniuk.
[Blustein explains that he had a conversation with Andrusha a few days later.]
N: What did Andrusha tell you?
B: I understand that he killed him. He told me that Barlas was very
courageous. He said that we will soon meet again in the next world.
N: Did you ever see Mir Barlas again?
B: No.
N: Did you have any other conversations with Andrusha?
B: I was looking after the horses at night. Andrusha entered for warmth.
He said: Dont think youll live for ever. When the Germans leave theyll
hand you over to us. Well massacre you as weve massacred many.35
Blusteins evidence was entirely credible. No one, usually, would either wish
or dare to question a word of it. But it was Cleggs job to do so, and he managed
to create some doubt as to Blusteins accuracy and even as to his honesty.
Blustein was cross-examined for two days. It was a fascinating confrontation;
cruel, dramatic, informative, thought-provoking and sometimes funny.
Blustein was determined not to give an inch: he was stubborn, intelligent,
defensive and sometimes ironic. When he was in danger, when Clegg was
having success with some small point that he was pursuing, Blusteins
characteristic response was it doesnt matter to me! or I was not interested
in such things. Blustein was interested in the killing of the Jews and of his
family. The court was interested in Sawoniuk, the four counts, and various
details that may have been important. All of the witnesses, for example, were
asked many detailed questions about the uniforms of the local police force.
Probably Clegg was trying to construct an argument relating to uniforms but
was, in the end, unable to do so on the evidence:
Clegg: Can you tell me about the police uniforms. Did they have uniforms
in the first few days after the German invasion. Wasnt it later?
Blustein: This thing didnt interest me and I didnt know about it. I still
think they had uniforms very soon after the invasion.
C: Do you remember giving evidence last year in the magistrates court?
B: Yes.
C: What did you say about police uniforms?
B: I dont know.
C: You said They eventually had a uniform. Remember?
B: No.
C: Do you accept thats what you said?
B: Yes. But it makes no difference.
C: Thats not what you said yesterday.
B: It is not my duty to know about uniforms.
C: Early on, 50 or so people, mainly Jews, were killed?

B: Im only talking about Jews.
C: Some gentiles were also killed?
B: Maybe. I dont know who.
C: Communists maybe?
B: It didnt interest me.36
And then an ideological disagreement:
C: The Germans didnt confine their murder to Jews?
B: They also killed the mayor and his son and another policeman.
C: Yes. So the Germans killed Jew and Gentile?
B: The Jews they killed because they were Jews. Others they killed because
they feared they were against them.
C: They killed communists because they were communists?
B: [No answer.]37
There were three measures that Clegg possessed with which he could test
Blusteins story. One was his clients story. This wasnt very useful to him,
since he must have been well aware that his client was lying about almost
everything. The second was to test Blusteins evidence against its own internal
consistency. The third was to test Blusteins evidence in this court against
previous versions of his own testimony.
It must be one of the unique features of this case that the witness was
confronted with a statement he had made in 1944, two years after the offence,
but 55 years before the trial. The prosecution was in possession of a signed
statement Blustein had made to the Peoples Commissariat for Internal Affairs
(NKVD), forerunner of the KGB, after the Russians had driven out the German
forces. The story that Blustein had told the NKVD was significantly different
109
110
from the story that he told in court 55 years later. Much of the difference was
easily explainable: Blustein admitted that he lied to the NKVD because he
was afraid of them. Yet much of his story in the NKVD statement was different.
He had told them that he and his family had hidden in the woods, not in the
cellar, that they had hidden for three days, not for nine, and that his mother
had been caught and shot. Why was his story so different?
Clegg: Can you confirm that is what you said in 1944?
Blustein: Mostly.
C: Lets go through it sentence by sentence. [He does so, at length.] Did you
give a wholly different account to the Russians in 1944 from what you
say today?
B: Not completely.
C: You would have had a motive for lying about your work as a telephone
engineer under German occupation before the massacre, so that you
couldnt be accused of collaboration. You would have had no motive for
lying about where you hid?
B: The NKVD official wrote what he wanted. I was waiting for him to
finish and let me go.
C: You read and signed it?
B: I cant remember. I would have signed anything.
C: Why did you lie about hiding in the woods rather than the ghetto?
B: I didnt want to get into an argument with him. Maybe he was drunk.
Who knows?
C: Was he unsteady on his feet?
B: I dont know. He was sitting down.
C: Were his eyes glazed? Was his speech slurred?
B: I cant remember.
C: You have no motive for giving a different account to the Russians?
B: My evidence was the same as Ive said here. What he wrote was up to
him. I wanted him to finish so I could leave. It didnt make any difference
to me what he wrote.38
Blusteins strategy was to be entirely indifferent. He was not used to being
asked such impertinent questions. His answers seem to be those that would
satisfy a group listening to the story of a survivor-hero. Maybe the Russian
was drunk? Of course! Everyone knows that Russians are always drunk. But
in the court, it is different. Blusteins story is that he told the NKVD man his
correct version, the man wrote whatever he wished to write, and Blustein
signed it in order to get away from the NKVD quickly and unscathed. It is
perfectly plausible. But why would the NKVD man have changed three days
to nine? And why would he have changed the cellar into the wood? And
Blusteins reply is, of course, who cares?. He is not interested in that; he is
interested in telling the world that everyone he knew was killed on Yom Kippur
1942, and that Sawoniuk was involved.
Blustein claimed too much. He claimed that his evidence was infallible in
every respect. He used the word holy to describe it. He did not trust the
court to assess his evidence fairly, to use its judgment in interpreting his
honesty. So he claimed that every single word was exactly true. Clegg had
little difficulty in comparing his words at the Old Bailey with his words the
year before in the magistrates court, his original statement to the British police,
his testimony to Yad Vashem, his book and his NKVD statement, and
discovering small but definite differences in each account.
This was the cross-examination that related directly to the killing of Mir
Barlas, count four:
Clegg: Turning to Mir Barlas. You couldnt see which way they went on
the Borisy Road, could you?
Blustein: They turned right. They could have gone to the forest or to
Domachevo.
C: You dont know where he went, or when or where he was killed, do you?
B: How could I know?
C: The conversation you say you had with Andrusha about Mir Barlas.
Did Andrusha say to you that he had killed Mir Barlas?
B: Yes.
C: Not that Mir Barlas had been killed by somebody?
B: No.
C: He said I killed him?
B: He said: He was very courageous before I killed him. We will see each other
in the world to come. No, thats wrong. He said before I liquidated him.
C: At the magistrates court you said that Andrusha did not say I killed
him. You said the opposite.
B: What did I say?
[Clegg reads it out again: there is no direct confession.]
B: Even if he did not say to me I liquidated him this was the biggest
proof that he did it.
C: But before, you said that he had said I liquidated him.
B: Yes, he said that.
C: You decided that Mir Barlas had been killed by Andrusha. That is
different from a confession In your evidence to Yad Vashem, transcribed
from a tape machine, you didnt mention the incident with Mir Barlas at
all. Can you confirm this?
B: I dont remember.
C: In your book One of the Sheep
B: I didnt write it. I told it to a woman from Yad Vashem. She wrote it.
C: Not one word about Mir Barlas?
B: It may be so.
[Clegg refers to Blusteins May 1995 statement to the British police.]
C: Not one mention about Mir Barlas or Andrusha confessing to his
murder?
B: They asked me to remember names of policemen. I remembered
Andrusha.
C: Is it true that you made no mention of Mir Barlas?
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112
B: I dont remember.
C: Will you accept it from me?
B: It could be.
C: You described other peoples fate. Nothing about Mir Barlas. You were
asked: What can you tell me about Andrusha? Why didnt you tell them
about his confession?
B: I told them about tens or hundreds that he killed. For me it held no
special meaning. I could even now give you more names of people he
killed that I havent mentioned39
It seems likely that the truth was that Sawoniuk had said something to Blustein
along the lines that he gave in his first examination by Nutting, something
like Mir Barlas was very courageous before he was shot. This was the story
Blustein had given to the British police, to the magistrates court and to Nutting.
In this cross-examination he changed his story, claiming that Andrusha had
used the words I liquidated him. Blustein was trying to make sure Sawoniuk
was convicted by claiming that he had said those particular words. And
Blustein also claimed that he remembered the phrase exactly, word for word.
Judge Potts accepted Cleggs argument. He judged that, since Blustein had
given a different story in his evidence-in-chief and in his cross-examination
concerning Sawoniuks confession, this evidence could not be relied on to
make a safe conviction. It is interesting that in his many accounts of events in
Domachevo, Blustein had never mentioned the fact that Andrusha had
confessed to the murder of Mir Barlas. Is it possible that Blustein invented
this incident after he knew who the defendant was? That was Cleggs
implication in cross-examination. And Blusteins answer: who cares? I could
even now give you more names of people he killed that I havent mentioned.
The jury, in a murder trial, heard this accusation. It was entirely inadmissible,
entirely prejudicial, and probably also entirely true.
The evidence of the local witnesses

The court moved on to hear the evidence of the non-Jewish Belorussians who
had travelled from the region of Domachevo to give evidence. They had all
been to Britain before, for the magistrates hearing. Apart from these trips to
London, I do not think any of them had travelled very far from Domachevo
during their entire lives. It must have been exciting to be picked out of the
crowd, to be made to feel important, to be flown off to London and put up at
a nice hotel.
Nutting began his examination of Gallina Pushkina full of self-consciously
absurd Englishness: May I be so ungallant as to ask your date of birth?, he
asked. Speaking Polish, she replied, through an interpreter, that she was 68
years old. She had lived in Domachevo during the war and was 11 years old
in 1942. She offered a great deal of coherent and cohesive background evidence
about Domachevo and the setting up of the police force following the invasion:
she remembered Sawoniuk and told how he had joined the police force.
Judging from the way he behaved afterwards, I believe he joined voluntarily.
She gave evidence about the day of the main massacre. It was a Sunday:
Nutting: What happened when you arrived at church?
Pushkina: We heard a fairly loud noise come from the ghetto.

N: What sort of sounds?
P: Lots of people crying and shouting.
N: Did you see what happened?
P: No. We heard it. I did see the people who were crying.
N: Could you tell me why they were crying and shouting?
P: Of course I do, they were all being taken to their death.
N: Who was taking them?
P: The local police and the Germans.
N: How many Jews were there?
P: Lots. Absolutely lots. Around 2,000. This was right at the beginning.
We were taken out of the church by a German who had a translator with
him and told to watch. We were standing outside the church on the top of
the hill looking down into the ghetto.
N: That was the first time you saw people being escorted?
P: We immediately saw that a large group of people were taken away.
N: 2,000?
P: No, much less.
N: How many, roughly?
P: Its difficult to say, 100, 150, 200.
N: Were they all Jews?
P: Yes.
N: How could you tell?
P: They all had yellow sewn-on badges.
N: Male or female?
P: All of them.
N: Both sexes?
P: Yes.
N: Children?
P: And children.
N: What sort of ages were they?
P: All sorts of ages from the very old to very young children.
N: What happened?
P: They were undressed before us.
N: Where did they put their clothes?
P: I cant tell you.
N: Where were they taken?
P: They went leftward towards the forest.
N: Towards the place marked in the plan as massacre site?
P: Yes.
N: Were Germans and Ukrainians participating all the time?
[Clegg objects.]
Judge: Rephrase.
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114
N: What were the escort doing?

P: Beating them along.
N: Who were the escort?
P: German soldiers and police.
N: German police or local police?
P: Our local police. I cant really remember anybody else.
N: Did the group remain in your view?
P: They were herded away into the pine forest.
N: Were the Germans who had ordered you out of the church still there?
P: Yes.
N: Did you see one group or more than one group of Jews?
P: I remember three groups.
N: The second group: was it the same size?
P: I find it difficult to say. We were afraid ourselves.
N: Were they also told to undress?
P: Yes.
N: Then escorted in the same direction as the first group?
P: Yes.
N: The third group. The same story?
P: Yes.
N: They were told to undress?
P: Yes.
N: Then led away?
P: Yes.
N: Were the escorts armed?
P: Yes.
N: Did you hear shooting?
P: After they took the first group away I heard the sound of machine gun
fire.40
A German official was sent to the Catholic church with a translator on the
day of the killing of the Jews of Domachevo. His job was to interrupt the
Sunday church service and bring the congregation outside the church, which
stood on some high ground above the ghetto. The Catholic men, women and
children were made to watch the final solution to the Jewish problem of
Domachevo as though it was a theatrical performance. Why? I can think of
two different reasons. It may have simply been to spread terror. The Catholics
were being shown what sort of a regime was in charge; it was one that ruled
by means of terror. They were being shown how cheap life was, and they
were being shown the fate that could await them also. Alternatively, it may
have been intended to make the Catholics of Domachevo feel some complicity
in the killing. They were being told: This is what you have always wanted;
for the Jews to disappear, for the Jews to be punished; but you were too weak
40 2 March 1999.
to do it; we Nazis are doing it for you. The killing of the Jews was not a secret.
It was not supposed to be a secret. It was not a crime committed on the quiet
or in the shadows. It was done in front of an audience. In Lublin, the
concentration camp was on the outskirts of the town and the railway station
in the centre of the town; Jews were marched from the railway station to the
camp, past the local population. The Nazis had a taste for the dramatic; for a
public drama of death.
Pushkina had little more to say about Sawoniuk himself. She did not see
him kill or mistreat anybody, but she was aware of his reputation as a man of
power, a man to be afraid of.
All the other prosecution witnesses spoke Belorussian, and were from
Borisy, a tiny hamlet near Domachevo. They were small farmers and their
religion was Russian Orthodox.
The first was Mrs Fedora Yakimuk, aged 73. She was the most peasantlike of all the witnesses, small, wrinkled, old, tough and stubborn. Clegg
entirely broke her down under cross-examination and made her admit that
all her evidence against Sawoniuk was gleaned from village gossip. Yet,
strangely, this did not affect her credibility. Clegg made her look ridiculous in
cross-examination primarily because she was uneducated, unintelligent, and
in a wholly foreign country and setting; but not necessarily because she was a
liar. The godmother of Yakimuks nephew, her sisters baby was Sawoniuks
first wife, Anna Maslova.
Yakimuk told the following dramatic story:
Nutting: Did you used to use a sickle when you worked in the fields?
Yakimuk: Yes.
N: Did you injure yourself?
Y: Yes. I cut my shoulder one day.
N: How did you treat the cut?
Y: My mother bound it up. She put iodine on it. The iodine came through
the bandage on my arm as a yellow stain. Andrusha saw me and shouted
Jude, Jude to make me stop. Andrusha and some Germans dragged me
away to be shot. I was crying, begging, kissing their feet. I was on my
knees explaining I was not a Jew and pleading for my life. Andrusha
knew me very well but he didnt protect me. The German pulled off the
bandage and saw the wound. He let me go. This was one week after the
massacre.41
It is a great story, and the press loved it. The headline in The Times was
Sawoniuk stood by as I begged for life.42 Undoubtedly it could be true, and
for this reason it is a powerful story Yet it is just as possible that it was only
partly true. Maybe it did really happen to her, but Sawoniuk wasnt actually
there? Maybe it really happened, but to somebody else, and Yakimuk was
telling it because it was true in a sense, and she wanted to be involved, she
wanted the trips to London, and she wanted the bad guy Sawoniuk put behind
41 2 March 1999.
42 Jones, 1998.
115
116
bars. Fifty-seven years is a long time. Mrs Yakimuk did not do well under
cross-examination:
Clegg: You never saw Andrusha commit any act of violence against
anyone, did you?
Yakimuk: His behaviour to everyone was violent.
C: Yes or no?
Y: Yes, but we werent allowed to see it. People did see acts of violence
but we werent allowed to go there.
C: Look at your statement of 12 February 1997 Is it a copy of your
statement to Scotland Yard?
Y: Yes.
C: Turn to page five. I never personally witnessed any acts of violence
during the German occupation. Did you say that?
Y: I did not say that.
C: [Repeats the quote.] Today youve told us you saw Sawoniuk beat people.
You didnt say that to the police, did you?
Y: I did see him herd people towards the sand hills but I couldnt be close.
C: You are changing your evidence to fit in with other peoples stories.
Y: Im telling you what I saw.
C: You have twice travelled here to give evidence in the company of other
people from Domachevo People in Domachevo are talking about this trial
Y: Yes.
C: Everybodys talking about Andrusha?
Y: Yes.
C: It is in the papers?
Y: Yes.
C: And on the TV?
Y: Yes.
C: Everyone is saying what Andrusha did in the war. But the truth is you
never saw anything in the war, isnt it?
Y: We werent allowed to go there.
C: Its untrue that you saw him beat people, isnt it?
Y: People werent allowed to see.
C: You said 10 minutes ago that you saw him beat people. Youve just
been caught out saying something that you never saw, havent you? Why
did you tell us that you saw Andrusha beat people?
Y: I didnt say that.
C: You said it a few minutes ago. Youre coming here and repeating a lot
of gossip, arent you?
Y: I did see people being driven towards the sand hills.
C: I suggest youre repeating gossip.
Y: I would see people being led away while I was queuing for bread.
C: When you said that you saw acts of violence, thats what others have
told you?
Y: Yes. I saw them led away but I was too afraid to go myself.
C: What you were telling me earlier was what others had told you.
Y: I repeat, I saw people led away and I heard shots.

C: When you saw the British police you knew they were investigating
Andrusha?
Y: Yes.
C: You told them everything you knew about Andrusha?
Y: Yes.
C: Your story about the bandage is not mentioned in your statement.
Nothing about anyone or Andrusha herding anyone anywhere Not a
word about anyone being beaten by anybody.
Y: I did see him leading people away to be shot while I was queuing for
bread.
C: Mrs Yakimuk, that is something that everyone is talking about?
Y: Yes.
C: But the first time youve said you witnessed it is today.
Y: I said he drove people to the sand hills. I wasnt allowed to go there
myself.
C: [with a slightly bullying tone] You didnt say that in the police statement
because he didnt do it.
Y: Every morning I went to buy bread
C: Every morning throughout the war you saw Andrusha herding people
to their deaths?
Y: Yes. I saw this many times.
C: Do you remember giving evidence in the magistrates court?
Y: I cant remember.
C: Do you not remember coming to England last year?
Y: Yes.
C: Mr Nutting asked you some questions?
Y: Sorry, they all look the same. [Nutting is tall and thin, and Clegg is shorter
and a little round. Everyone laughs.] You could be brothers! [Yakimuk enjoys
the laugh that she is getting.]
C: [After having enjoyed the joke with everyone else, suddenly turns serious
again.] Andrusha is on trial for murder You were given every
opportunity to say what you wanted in the magistrates court?
Y: Yes.
C: Why didnt you say youd seen Andrusha herd any people to their
death?
Y: I think I answered all the questions put to me.
C: You knew the purpose of coming here was to give evidence against
Andrusha? If it is true that every time you went to buy bread you saw
Andrusha herding people to their deaths why didnt you tell us?
Y: I think I did.
C: All you told us was that you could hear shots, but no suggestion of
Andrusha being present. If it was true you would have told the court last
year?
Y: Yes.
C: You didnt tell the court, did you?
Y: I dont know
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118
C: You were read every word in the Russian?

Y: Yes.
C: Today is the first time ever you have told this story about Andrusha?
Y: Yes.
C: Because you want to tell the same story as everyone else?
Y: Yes.
C: You said last year that you were frightened to go to Domachevo during
the war?
Y: Yes.
C: The truth is that youre just saying things other people have told you,
arent you?
Y: Im telling the truth.
C: You never saw Andrusha herding anybody towards the sand pits, did
you? He wasnt present when any German officer tore off the bandage?
Y: Yes the German officer was there. Andrusha knew me very well. I was
frightened.
Nutting: What age were you in 1942?
Yakimuk: 14, 15, I dont know.
N: [Works it out slowly.] You were 16.
Y: Im illiterate. I dont know.43
The next witness was Ivan Baglay. He was also from Borisy, and he gave the
same general background information as the other witnesses. He knew
Andrusha; everyone, he said, knew Andrusha. He described the day of the
main massacre: The sound was like a full-blown war, He described having
seen the pits where the Jews were buried: I saw blood seeping through the
sand and lots of flies. He told of an incident a few days later when he saw
Sawoniuk, armed, escorting a woman and her child to the police station:
Baglay: Sawoniuk carried a carbine and a pole, about two metres long made
of birch. The woman and the child were frightened. Sawoniuk took hold of
the pole with both hands and gave her a heavy blow to the right shoulder.
Nutting: Could you detect any reason why he should have hit her?
B: In order to appeal himself to the Gendarmerie. He wanted to show that
he had discovered more Jews.
N: What happened to the woman?
B: She fell to the ground. The child was screaming in a hoarse voice.
Andrusha then put the pole back on his shoulder. He started dragging
the woman, shouting Schnell, Schnell. When the woman rose, one
shoulder was lower than the other and her hand was immobile. So she
took the girl instead by her left hand.44
Ivan Baglay also told how he saw Sawoniuk escorting the Biumen family, for
whom his mother had sometimes worked:
Baglay: I saw Biumen turning to Andrusha imploring that he save the life
of this family.
43 2 March 1999.
44 3 March 1999.
Nutting: Was Mrs Biumen present?

B: Yes. She was walking in front of them.
N: Were their daughters there?
B: They were with their mother, holding her hands.
N: How old were the daughters?
B: They were about seven and five.
N: What did Andrushas reaction appear to be?
B: He didnt even want to listen. He merely forced them onwards. They
continued walking in the direction of the sand hills.
N: Did you ever see Mr Biumen or any of his family again?
B: No.45
In the cross-examination, Clegg pursued Baglay, but not very far, and in the
end was satisfied to make it clear to the jury that these two stories did not
relate to any charges against Sawoniuk.
Ivan Baglays brother, Alexander, gave evidence. It was the father of the
Baglay brothers, a carpenter, who carried out the work when Sawoniuk stole
a house from the ghetto and had it moved and rebuilt elsewhere in the town.
Baglay told the story that related to count one of the indictment. Of the four
counts, it was by far the strongest. Baglay had witnessed Sawoniuk kill three
people; he had known Sawoniuk; and he had been close to him as the murder
was committed:
Nutting: Why did you go to the ghetto?
Baglay: We wanted to find something for ourselvesshoes or clothes.
N: What happened?
B: We were caught by the local police.
N: What did they do to you?
B: They took us to the police station and then towards the sands.
N: Was the police station opposite the ghetto gates?
B: Yes.
N: Who took you to the sand hills?
B: Andrusha. We thought that we were going to be shot. When we came
out of the police station we saw three Jews. We realised that we would
not be shot but would be burying them. It was about two oclock. We
went directly to the sand hills. The Jewish people had been discovered in
a cellar in the ghetto.
N: Was Andrusha the only policeman?
B: No, there were two others.
N: Did Andrusha have a weapon?
B: Yes.
N: What sort?
B: A pistol.
N: Were you carrying anything?
45 3 March 1999.
119
120
B: No.
N: Where did you first see the Jews?
B: They were standing by a hole that had been dug out. There were three
Jews, two men and one woman. Andrusha ordered them to undress. The
men were about 40. They undressed. The woman, about 28, was reluctant
to take her pants off. Andrusha insisted. Andrusha threatened her with a
beating. The Jews were emaciated and unshaven. Andrusha shot the Jews
in the back of the head.
[Baglay explains that he and his friend were told to bury the bodies, and told that
they could take the clothes.]
N: Who shot the Jews?
B: Andrusha.
N: With what?
B: With the pistol, in the back of the head.
N: Did they fall into the pit?
B: Yes. One after the other.
N: Where was Andrusha?
B: Standing behind each.46
The next witness was Ivan Stepaniuk. Stepaniuk told of the death of Shlemko,
which related to count two of the indictment. Stepaniuk had known Shlemko
before the war when he had worked for him in his team on the railway.
Stepaniuk had seen Shlemko being taken away by Andrusha towards the
massacre site a few days after the main massacre. Andrusha was beating
Shlemko:
Nutting: What was Shlemkos reaction?
Stepaniuk: He was picked up, beaten again, picked up again The other
policeman held his right arm.
N: For how long did they remain in your sight?
S: Two to five minutes. No more.
N: Where were they going to?
S: Towards the woods.
N: You said he was killed. What happened after you lost sight of them?
Did you hear anything?
S: I heard the sound of gunfire.
N: When he was being hit was he doing anything to protect himself?
S: No.
N: How did he appear?
S: I cant describe him. How can I describe him?
N: What sort of spirits did he appear to be in?
S: How should he feel when he was being led away to his death? He was
quite insensitive.
46 5 March 1999.
N: Can you explain?

S: He appeared to be without feeling. He was picked up, dragged on, fell
down again.
N: How many times did he fall when you were watching?
S: About four times.
N: Did you see the face of Andrusha?
S: Yes, I did. Every time he picked up the Jew Shlemko he would turn
round so I could see his face.
N: Had you seen anything like that before?
S: No.
N: Did you see Andrusha again that day?
S: I saw him return from the woods where the shooting was.
N: Did he still have the carbine?
S: Yes. The carbine and the spade.
N: Was Shlemko with them?
S: No.
N: The other policeman?
S: Yes.47
However, under cross-examination, Stepaniuk made the following admission:
Clegg: On that day when you saw Shlemko and the two policemen, then
you didnt know the name of either, did you?
Stepaniuk: Yes. I didnt know him then. But I was told after it was him.
C: By another policeman you described as Andrushas brother?
S: Yes.
C: A couple of months later?
S: No, a couple of days.
C: The man you call Andrusha wasnt present at the conversation, was he?48
Later, the judge felt unable to allow this count to go to the jury because of the
unsafe identification of Sawoniuk. In his re-examination, Stepaniuk had told
how he had seen Andrusha often in Domachevo after the Shlemko incident;
but under his first examination, it had appeared that his identification of
Shlemko was completely based on the hearsay of the man Stepaniuk knew as
Sawoniuks brother.
The next witness that Nutting called was Detective Sergeant Griffiths from
the War Crimes Unit at New Scotland Yard. On 21 March 1996 they had decided
that they had enough evidence against Sawoniuk to interview him. They went
to his flat at 31 Cadbury Way, London SE16. He lived alone there. He answered
the door to the police and they introduced themselves. They had a search
warrant, and they searched his premises. They found two documents that
they took away, a travel document and a photograph of Sawoniuk in a Polish
army uniform.
47 8 March 1999.
48 8 March 1999.
121
122
Sawoniuk attended Southwark police station on 1 April 1996 for an interview.

It was recorded by video and audio. He was represented by solicitors. The police
told him that they were investigating charges of murder and manslaughter in
the German occupied territories during the period 193945.
What followed in court was a bizarre piece of theatre. Nutting wanted to
get the police interview before the jury and into the record. Nutting and the
policeman, Griffiths, performed the interview, Griffiths playing himself and
Nutting playing Sawoniuk. Nutting speaks very much the Queens English.
He speaks slowly, deliberately, and in a self-assured way. Now, Nutting was
reading Sawoniuks words from the police interview transcript. Sawoniuk is
clearly not educated and is not a master of language. He has learnt his English
in Bermondsey. The words from the transcript seem like a foreigner who has
learnt to speak bad cockney. Nutting says the words in his usual voice, but of
course they sound ridiculous. At the time this evidence was given, it was not
clear yet whether Sawoniuk was going to testify. So this reading of the
transcript might have been Nuttings only opportunity to allow the jury to
hear Sawoniuks own words.
The next morning one of the jurors had been taken ill. Her doctor reported
that she would be in hospital for a week. The judge decided to let her go and
carry on with 11 jurors. Clegg asked that there should be no contact between
the 11 jurors and the one in hospital:
Clegg: Itd be the most natural thing in the world if they were to send her
flowers, but I must ask that there be no contact.
Judge: Very well Mr Clegg. Would you like to ask me in front of the jurors
for them to have no contact?
Clegg: Id rather that my Lord appeared to take the responsibility lest I
appear unchivalrous.
[Miss Evans, the jurys usher, agrees to send flowers on behalf of the jury and the
court if Mr Clegg will pay.]49
As so often in this trial, the English gentility of the language and sentiments
contrasted greatly with the substance of the case.
Proceedings continued with the last witness for the prosecution, Fedor Zan.
Zan testified that he had seen his uncle and cousins escorted to their deaths
by local policemen including Sawoniuk in the spring of 1943. This, however,
did not constitute a crime under the War Crimes Act 1991, since it was part of
the war against the partisans, and not against the Jews. It might, however,
be used by the defence to show that Zan had a motive to hate Sawoniuk, and
therefore, possibly to lie in order to secure his conviction. On the other hand,
it was further evidence to the jury of the fact that Sawoniuk was a Nazi killer.
Zan told of the incident that related to count three of the indictment. He
had visited his sister in Kobelka, a nearby village, on his way home from
work. He was making his way there from the train station, through the woods,
when he heard crying and shouting. He saw a group of about 15 Jewish women
undressing on the instructions of Sawoniuk. He lined them up next to a pit,
and shot them with a machine gun. While in Domachevo, Zan had taken the
court to the spot where he had hidden and he showed the jury the spot where
49 15 March 1999.
he says he saw Sawoniuk shooting the women. The defence and the
prosecution agreed that the distance was 127 or 128 paces. The jury had to
decide whether an identification at that distance was safe. In the end they
decided that it was, and found Sawoniuk guilty on this count. By the time the
jury considered this count, they had reason enough to want to find Sawoniuk
guilty; but an identification at such a distance and such a length of time after
the event must, surely, be open to some reasonable doubt.
Sawoniuk under cross-examination

After the presentation of the case for the prosecution, things were going fairly
well for Sawoniuk. Clegg had just succeeded in having two of the four counts
thrown out by the judge. It was not certain that the jury would find that the
Crown had proved the remaining two counts. It is absolutely clear that
Sawoniuk must have been advised by his lawyers not to testify. It was his
arrogance, his feeling that he knew better, that he was cleverer than the lawyers,
the judge and the jury, that made him testify. Perhaps it was his arrogance
that in the end caused him to be convicted as much as the fact of his guilt.
Under cross-examination Sawoniuk was, simply, absurd. He routinely
denied everything. He denied things that he didnt need to deny; things that
every witness had agreed upon; and things that were clearly established
historical fact.
For example, he began by denying the existence of the ghetto in Domachevo.
So Nutting asked him whether there was a ghetto in Tomashevska, which he
denied, or in Brest, which he also denied. He denied that there was barbed
wire round the ghetto. He denied that he had ever seen Jews wearing yellow
stars. He denied that there were any greater restrictions on Jews than on anyone
else. He claimed that the police station was moved to a building just opposite
the gate of the ghetto by coincidence.
Sawoniuk claimed that during the main massacre he was visiting a friend
in another village. Nutting asked him why, when he found out about the
massacre, he had not decided to leave the police. His answer was:
I wasnt ready for that. I decided a year later. I brought myself up. I used my brain.
Nobody told me nuttin.50
This was, perhaps, an echo of an argument he had had long ago with his
brother about leaving the police. He was his own man. He wasnt going to be
told by anyone else what was right and wrong. He would make his own
decisions:
Sawoniuk: I wasnt ready.
Nutting: You knew you could leave at any time?
S: Yes.
N: Some did leave?
S: I wouldnt know.
N: Didnt your brother leave?
S: He left soon after he joined.
50 22 March 1999.
123
124
N: Because he realised what the whole racket smelt of?

S: Yes.
N: I used the language that a witness used.
S: My brother never discussed anything with me why he left.
N: Did he leave because he was ill?
S: His health wasnt good.
N: Was his health an excuse?
S: Yes.
N: But the real reason was he didnt like what he had to do?
S: He didnt want to do things like hitting people or killing people.
N: What went wrong for the Jews in the six months after your brother
joined to make him think that?
S: He never told me. I do know he didnt like the idea that the Jews didnt
have their freedom.
Judge: His answer was voluntary.
N: [Reads out the remark about hitting and killing people.] Those were your
words? [Repeats quote.]
S: Correct.
N: Tell the jury what it was in autumn 1941 that your brother didnt like?
S: Nothing whatsoever. The police were friendly. We never interfered.
Judge: This was your answer: He did not like it what was going on in
Domachevo with the Jewish. What did you mean by it? [Repeats quote.]
What did you mean by that?
S: Jew people never had their freedom.
N: When did this restriction occur?
S: Never. We were never told Jewish mustnt go here, go there. My brother
left because the Jews never had freedom. In the German occupation they
couldnt do what they wanted.
N: What were the restrictions?
S: They mustnt go far from where they lived.
N: You told me this morning there were no restrictions.
S: The Germans never had respect for us. We protect Domachevo from
the partisans. They wasnt friendly with us.
N: What were the other restrictions on the Jews?
S: There were no restrictions.
N: Was there any ill treatment of the Jews?
S: How should I know if they were ill. Im not a doctor.
N: [Quotes.] Yes he, one of those persons same as myself. He didnt want
to do it. Hitting people. Killing people. What alerted you and your brother
to this?
S: [loudly] Lie.
N: But Im repeating your own answer. What was it that caused your
brother to fear that he might have to kill Jews?
S: If hed been ordered to kill Jews hed have done it else hed be dead. He
never discussed with me anything. He was only a half brother. We didnt
have good relations.
N: What you have done is to lift a corner of the truth. I suggest that what
you have told us about your brother leaving the police, that your brother
didnt like having to kill Jews, was true.51
Sometimes Sawoniuks testimony was so bizarre and incoherent that it was
not even incriminating. The one issue that made him really lose his temper
was the accusation that he had been a member of the SS after he left
Domachevo. He told a long and certainly fictional story about how he travelled
from Domachevo to France to join the Free Polish army. In fact he had travelled
from Domachevo to France with the German army as a member of the
Belorussian section of the SS. Nutting was able to confront him with his Polish
army document but it was only of use to the prosecution if Sawoniuk could
be enticed into authenticating it himself.
Nutting: Were you serving in the German army?
Sawoniuk: I never ever joined the German army.
N: Weve had that document translated. What it says is 1 August to 11
November 1944, German army according to his own statement.
S: [angry] Prove it me in black and white. Rubbish.
N: Why does it say so?
S: You are lying in front of the jury, everybody. I hope the jury doesnt
believe you.
N: Look at exhibit seven. Did you ever join the Waffen Border Regiment
of the SS number 76, 1st Battalion?
S: [very angry] You call me liar twice. I call you liar.
Judge: Yes, but did you or didnt you?
S: Never. Dont talk to me about German army. I wont answer no more
questions about German army.
N: Were you transferred from Warsaw to France in that regiment?
S: No.
N: Does the document give your surname, Sawoniuk? Is that you? Does
it give your date of birth?
S: Yes. 7 March 1921. Thats correct.
N: Place of birth, Domachevo?
S: Yes sir.
N: Against the German for place of birth does it say Domachevo?
S: I was born in Domachevo, yes.
N: Does the document say that?
S: Yes. I see it.
N: That is German isnt it?
S: What you putting German for?
51 22 March 1999.
125
126
N: Does it say Rank: Corporal of Schuman Schukmanshaft? Were you a

Corporal of Schukmanshaft?
S: [very angry, shouting] Ive listened to lies. Im not going to listen no
more.
[Clegg interrupts, pleading for a break on behalf of his client.]
Judge: Mr Nutting has the right to cross-examine.
S: I dont want break.
N: Could I have the document back.
S: [shouting] Dont show me it no more. I wont accept that.
[He withdraws from the witness box as if he is about to leave]
Judge: [sternly] Listen to me. Please understand that if you are asked an
improper question I will stop Mr Nutting. So far it is not improper. Will
you listen to Mr Nuttings questions?
S: Im not prepare to answer on German army. I never been in it. I hate
Germans and I hate Russians.
N: Just have this document back.
S: No.
[Judge asks nicely.]
N: The usher will point to the next bit I want you to look at. Does the
German word mean married to in German?
S: I dont speak German.
N: Does the word after that say Nina S?
S: I dont know what S stands for.
N: What was Ninas last name?
S: I dont know. She was Russian.
N: Would Nina S refer to Nina Sawoniuk by any chance?
S: [No answer.]
N: How is it that a German SS document contains your name, date of
birth, place of birth and the word Nina S?
S: [shouting, pointing at Griffiths and the other policeman at the back of the
court] He printed it!
N: This is a Scotland Yard conspiracy?
S: Yes. Probably.
N: All part of the KGB conspiracy?
S: They work together innit?
N: Are you tired, Mr Sawoniuk?
S: Im tired enough of you!
Judge: Well have a break now.52
Sawoniuk lied about almost everything under cross-examination, but nearly
all of the things he lied about were not centrally important to the counts with
which he was charged. Did he kill the 16 women in the forest as Zan said, and
did he kill the three Jews and force Baglay to bury the bodies? These were the
52 22 March 1999.
only crucial questions. Perhaps if Sawoniuk had been charged with the crime
of genocide, or crimes against humanity, the court would have been more easily
able to take into account the whole story that emerged about his conduct during
the war. It would not have been necessary to focus exclusively on the two
murders, and it would have been possible to take into consideration other
evidence that added to the picture of Sawoniuk as a Nazi killer. And perhaps,
even if it had proved impossible to convict him of the two specific murders, it
might still have been possible to convict him of being part of the common plan
or criminal conspiracy to kill the Jews of Europe. But in this trial, the charge
was simply murder, and so the two particular counts were all-important.
Cleggs closing speech was interesting and, given that by this time Sawoniuk
seemed to have very little case left, surprisingly compelling. He noticed that
all the important witnesses, all the witnesses who testified to having seen
Sawoniuk committing atrocities, came from Borisy. The witnesses who came
from Domachevo itself, while providing background information, did not
tell of having seen Sawoniuk actually commit any crimes. But every single
person from Borisy who was alive during the war, said Clegg, and who is still
alive today, gave evidence of particular crimes carried out by Andrusha.53
Clegg argued that this was too much of a coincidence. Therefore, there must
have been either some sort of conspiracy in Borisy, or some sort of communal
action that was based on the Borisy collective memory, or gossip, of wartime
and of Andrushas involvement.
Clegg went on to give a reason why Sawoniuk would be particularly hated
in Borisy, a hamlet consisting of no more than 30 houses. Borisy was a partisan
village, and Sawoniuk freely admitted to having killed partisans. He even
recalled the incident where Zans uncle, aunt and cousins were killed. Also,
Clegg pointed out, Yakimuk, Melaniuk, and Alexander Baglay had not
mentioned important parts of the stories they told about Andrusha in court
at the time of the first British police interviews, so they gave new and important
information only when they knew who the suspect was. And further still,
there was much media interest in Domachevo concerning Sawoniuk, and
much talk about Sawoniuks guilt. Zan had given interviews to both British
and Russian television journalists about Sawoniuk. It is certainly possible that
by the time of the trial it was well known in Borisy, as well as Domachevo,
that Sawoniuk was guilty, and that it was important for him to be found guilty.
It might be the case, however, that the jury had already tacitly agreed upon
their verdicts before Cleggs closing address but after Nuttings, since it was
at this lunchtime that most of them were seen for the first time in the pub
across the road from the Old Bailey enjoying alcoholic refreshment.
The jury were certainly convinced of the general guilt of Andrei Sawoniuk,
and the two counts, based on the evidence of Alexander Baglay and Fedor
Zan, enabled them to convict him, which they did. Since he was found guilty
of murder, he was sentencedthe judge having no discretionto life
imprisonment.
The trial of Sawoniuk was, at least partly, a cosmopolitan trial. It dealt with
events in Belorus, organised by German Nazis as part of their attempt to kill
the Jews and take over the world. Perhaps, then, it would have been most
53 This, Clegg admitted at Sawoniuks appeal, was a littlebut not muchof an exaggeration.
127
128
appropriate to have held the trial in an international criminal court, and for the
defendant to have been charged with crimes against humanity. In the absence
of the existence of such a court, the trial was held in London under English law
and so took a transitional form between national and cosmopolitan.
The court dealt with evidence that was 56 years old and that had been
compromised by fading memories, by the telling and retelling of stories, by the
cross-contamination of evidence, and by the reconfiguration of old enmities.
The particular form of evidence that was demanded by English law was quite
specific, that of immediate oral testimony, subjected to cross-examination.
Other forms that might have shed light on the case, such as documentary
evidence, were excluded. Evidence offered in the form of Holocaust memoir
and of nationalistic narrative was aggressively transformed by the processes of
the court into its preferred forms. The court acted to legitimate survivor
testimony by locating it in the sacred space of law, but simultaneously to
delegitimate it by trying to remove control of the narrative from the hands of
witnesses and by contesting the value of much of the testimony.
A complex picture of Andrei Sawoniuk emerged from the process. The
contrast of ordinariness and extraordinariness in his story was striking.
Sawoniuk would surely not have become a killer if he had not found himself
in a situation where killing was expected and sanctioned by authority; yet
neither was he forced into it. Some aspects of Sawoniuks transformation into
a mass killer are in tune with Baumans framework, but others are in
contradiction to it. It is true that, believing the Nazis were destined to win the
war, his strategy of becoming a policeman and behaving in such a way as to
be trusted and promoted by the occupying power had a certain logic from the
point of view of his own narrow self-interest. It gave him a job, a living, power
and the possibility of promotion.
It is stretching the facts, however, to suggest that Sawoniuks decision to
become a gnocidaire was simply an example of rational decision making. First,
since his brother chose to leave the police force, and is still living quite happily
just across the river from Domachevo, it is clear that Sawoniuk could have
made the same choice if he had wanted to. He chose a different course, and it
was a free and conscious decision. He had an argument with his brother; he
chose to kill Jews and his brother chose to take his chances outside the police
force. Secondly, a decision such as whether or not to become a mass killer
must involve factors other than rational choice. It is only possible to speculate
about Sawoniuks early life and what kind of person he was when he chose to
become a killer. It is clear enough that he was not brought up in a loving
family and that he was poor. It also seems that he suffered as a child from
some bullying. None of this, of course, can explain how a person becomes a
brutal mass murderer, but it is not irrelevant that he was an excluded, alienated,
unloved young man. He found a way to improve his social prospects and
also, perhaps, an outlet for his anger. But Sawoniuk was in no way a Weberian
bureaucrat who just obeyed orders and carried out professional duties. He
chose to become a killer and he chose to kill and beat with more brutality
than the efficient pursuit of a bureaucratic goal could possibly require.
When they gave evidence, both Blustein and Sawoniuk had attempted to
wrest control of their stories from the court. Blustein was mistrustful of the
court and its rules; he did not trust the court to hear his evidence fairly or to
believe him. He wanted to be in control of the story he told, to tell what he
wanted to tell, rather than be confined and guided by the adversarial system.
He did not want to play the game of cross-examination; rather he wanted to
be believed. He did not mind if the court was unhappy with one true story;
he could tell another true story. It didnt matter to him. Sawoniuk felt that he
was cleverer than the court, and cleverer than his own lawyers; if only he
could have a chance to tell his story to the jury, they would believe him. He
thought that he could talk his way out of the Old Bailey, as he had, presumably,
talked his way out of many a tight spot before.
Both of the men, the one who as a young man had seen everybody he
knew killed, and the one who as a young man had taken part in that killing,
felt that they could circumvent the rules and norms of the court. They both
wanted to talk straight to the jury and they did find ways of doing so. They
might have done better if they had trusted the court more, if they had
attempted to use the rules of the court in their favour rather than attempting
to rise above those rules. Blustein might have avoided having the count that
was based on his testimony thrown out if he had trusted the court to believe
his original evidence of an indirect confession; it was because he did not trust
the court to do so that he embellished it with his claim that Sawoniuk made a
direct confession. Sawoniuk would have avoided showing himself so clearly
to be a liar. On more than one occasion during his cross-examination, Nutting
was happy to allow Sawoniuk to speak directly to the jury without
intervention. Sawoniuk would have had more chance of success by exercising
the right to silence, which was offered to him by the law, than by following
his strategy of trying to communicate in an unmediated way with the jury.
On the other hand, it might be that the jury was swayed as much by evidence
that was inadmissible or prejudicial as it was by the evidence upon which it
was supposed to come to a decision. The witnesses found ways to talk to the
jury that were non-legal, outside the formal rules of the court. Blustein
presented the jury with his emotional and moving Holocaust memoir. He
challenged them to accept it in spite of Cleggs smart cross-examination and
the judges earnest directions. The existence of the jury and the privacy of the
jurys discussions are also within the rules and norms of the criminal trial,
not outside them. Evidence is given in the presence of the jury so that they
can assess non-verbal messages from witnesses. They must be able to see the
witnesses giving evidence, and enduring the pressure of cross-examination,
in order to come to a judgment as to their truthfulness. The rules and norms
of law insist that the jury make its judgment not only from the words spoken
by the witnesses but also from the ways in which they are spoken. Embedded
within the norms and rules of the criminal trial are the mechanisms by which
the rules and norms of evidence may be subverted. The extraordinariness of
the events with which this trial was concerned accentuated the difficulties
that the trial process has with abstracting and shaping events in the world so
that they can be judged in the courtroom.
129
Chapter Seven
Irving v Lipstadt and the legal construction
of authoritative cosmopolitan narrative
The Irving v Lipstadt libel trial was a different kind of trial from the criminal
trials examined so far. It was centrally concerned with assessing the
parameters, rules and norms of academic historiographical methodology. It
was asked to decide whether the work of David Irving, which questions and
denies central facts about the Holocaust, fell within or without those
parameters; or, at least, whether someone who says that Irving is a Holocaust
denier rather than a historian should be stopped by the law from publishing.
Inevitably, this decision necessitated some investigation into the actual events
in question as well as into the accuracy, limits and legitimacy of the
historiography that has mapped them. Thus, the trial was judging the events
of a particular set of crimes against humanity in a different way from a criminal
trial. Instead of asking whether a particular defendant shared a legal
responsibility for them, it was asked to make a judgment about the two
different forms of narrative that claimed to chart them: the academic form of
Deborah Lipstadt and the revisionist form of David Irving. The court was
being asked to produce a form of narrative of its own.
Two forms of narrative, then, were given to the court as inputs: an academic
form and a revisionist form. The court had to produce a cosmopolitan and
legally authoritative output by working on those inputs according to its own
procedures, rules and norms. Even though the court was a national one, its
task was to give an impartial, that is, not nationally particular, verdict regarding
a profoundly supra-national event. The judgment consisted of a 349-page
document that sketched the central events and facts of the Holocaust, and
showed how Irvings writing could not be rightly understood as even an
eccentric or dissident attempt at honest historiography.1
The judgment was a cosmopolitan narrative. The second half of this chapter
discusses the significance of this kind of legal production of cosmopolitan
narrative. It draws on other cases from this book and elsewhere. I argue that
cosmopolitan trials are in a particularly strong position to produce
authoritative descriptions of highly contested sets of events; events that are
the subject of shaping and reshaping by competing mythologies of nationalism.
Cosmopolitan courts contain mechanisms that aim to free their judgments of
national particularity. They require evidence to be scrutinised in rigorous ways;
they can hear different forms of evidence, evidence from different countries
and different points of view. The narratives produced by cosmopolitan courts
are produced with the authority of an established body of international
humanitarian and human rights law.
Irving v Lipstadt judgment.
Irving v Lipstadt and the legal construction of authoritative cosmopolitan narrative
Irving v Lipstadt
I was in the queue outside the courtroom where the case was being heard. A
man behind me was explaining the issues very loudly to his companion. Why
doesnt Irving have the balls to tell the truth? he asked:
He knows as well as we do that no Jews were ever killed, there were no gas chambers.
So why does he admit that some existed but not others? Hes just trying to please
the judge. But we all know that hes made his mind up already. All they have to do
is go to Auschwitz, dig up the rubble, and find that theres no holes in the roof.2
Then theyd know there were no gas chambers. But they wont do it. Because then
the whole game would be up
I turn round to watch and listen, not knowing what to do. Should I attack
him? Argue with him? I just continue to watch and listen, keeping eye contact
with him. He enjoys the attention. His self-righteous little monologue puffs
up, becoming louder and more confident. He is aware that he has an audience
to shock. He covers many important issues, the flood of asylum seekers, the
weakness and hypocrisy of the Labour government: If they continue to
come over here, then perhaps Ill leave the country. I, and those near me in
the queue, listen for about five minutes, until the courtroom is opened and
we are allowed to file in, making every effort not to have to sit next to the
Nazi for the entire morning.3
The Irving case was in some ways more unpleasant and shocking to observe
than the crimes against humanity trials. There was always a sprinkling of
Nazis in the audience, ready to laugh at Irvings witticisms and marvel at his
cleverness. Irving himself was not being asked to answer for any Nazi crimes
in court. On the contrary, his performance in court actually constituted his
political activity. We were not observing the consequences of his activity, but
the activity itself, that of a racist intellectual who had made it his business to
defend Hitler and to ridicule Holocaust survivors.
Deborah Lipstadt first published her book, Denying the Holocaust: The
Growing Assault on Truth and Memory, in 1993. It was an academic study that
sought to expose the methods, strategies and political agendas of those who
deny the Holocaust. It mentioned David Irving 16 times. She called Irving
one of the most dangerous spokespersons for Holocaust denial. Familiar
with historical evidence, she wrote, he bends it until it conforms with his
ideological leanings and political agenda.4
Irving sued Lipstadt and Penguin Books for libel but he presented himself
as a victim. In court he was alone, representing himself. On the other side of
the room was barrister Richard Rampton and the late Princess Dianas divorce
lawyer, Anthony Julius, accompanied by a team of about 10 busy, scurrying
young lawyers; they were able to elicit the testimony of five eminent academics,
backed up by long reports prepared with the help of their research assistants;
they had the financial backing of the Penguin corporation. Outside the
courtroom was the entire world Jewish conspiracy trying to silence Irving.
But the truth, sometimes overlooked by the commentators on the trial, was
2
3
The holes he meant were the ones through which the gas was introduced.
Kate Taylor says: On most days, assembled at the back of the courtroom were a motley crew of Irving
supporters. At least three were known members of the BNP, Bob Gertner, Arthur Flinders and Ron Smith.
Taylor, 2000, p 30. I dont know if this Nazi was one of these.
Lipstadt, 1994, p 181.
131
132
that it was Irving who was trying to silence Lipstadt; it was he who instigated
the trial; it was she who was forced to spend five years of her life defending
her right to publish. It was David Irving who had nothing to lose.
At the beginning of the trial it was agreed by both sides, and Judge Charles
Gray, that there would be no jury. Anthony Julius explained later5 that the
Lipstadt sides motivation for agreeing to this was that it would simplify and
shorten the trial. He denied that they would have been more worried about
the outcome of the case had it been tried by a jury. He also argued, with
hindsight, that the greatest benefit of having no jury was that the judge
produced a large, comprehensive and closely argued written judgment that
vindicated Lipstadt in detail, and that also concluded that Irving was a liar
motivated by racism. A jury would only have been able to produce a guilty or
not guilty verdict.
Julius also explained why they never called eye witnesses of the Holocaust
to give evidence against Irving. Some survivors had been unhappy at this
decision, arguing that they spoke with a unique authority, and felt marginalised
because they were not allowed to be central in rebutting Irvings case
themselves. Julius argued that the Lipstadt legal team had a moral objection:
they did not want to expose survivors to days of cross-examination by the
belligerent anti-Semite. They also had a forensic objection: they wanted to
run the case as if it was their case, to take the initiative in the trial. They wanted
to show that Irving was corrupt; that his history was full of lies and distortions.
The best way to do this, they decided, was to call historians to speak for the
historical documents. They wanted to put Irving on the defensive, to run the
case like a history seminar with Irving as a rather bad student.6 Lipstadt, too,
did not give evidence. Her team felt that her evidence was in her book. They
wanted to focus the case on Irving and his books, not on Lipstadt.
In the case, Irving denied three central things: that Jews were killed in gas
chambers at Auschwitz; that Hitler directly ordered their slaughter; and that
there was any systematic plan to destroy European Jewry. Irving claimed that
the well known pictures of bodies taken in concentration camps were victims
of typhus, of death by natural causes. Why were they all so thin, he asks, if
Jews were taken straight off the trains and killed? He boasted that Auschwitz
was the flagship of the Holocaust legend; if that were sunk, as it would be
within six weeks, the whole legend would crumble. In this case Auschwitz
became a substitute for the whole genocide; and the gas chamber Birkenau II
became a substitute for Auschwitz.
The first expert witness for Lipstadt was, therefore, Robert Jan van Pelt, an
architectural historian who has done some of the most interesting and
authoritative research on Auschwitz.7 He had spent a number of years in the
archives there, reconstructing the architectural history of the camp and
particularly of the gas chambers. Van Pelts report said that the overwhelming
evidence showed that a million Jews were murdered at Auschwitz. He said
that the convergence of testimony made it a moral certainty that the gas
chambers were the main instrument of murder between summer 1942 and
1944. Van Pelt cited eye witness evidence that had been given by prisoners
5
6
7
Julius, 2000.
Julius, 2000.
van Pelt and Dwork, 1996.
including Stanislaw Jankowski, Shlomo Dragon and Henryk Tauber on

gassings in the five crematoria. Others had given evidence of how the gas
chambers were demolished in late 1944 and early 1945 to destroy evidence.
Van Pelt also cited confessions by Nazis, including SS (Schutzstaffel) officers
Pery Broad, Rudolf Hss, Adolf Eichmann and others.
Irvings position was that eye witness accounts by Jewish witnesses are in
need of psychiatric evaluation, or are concocted by the world Jewish
conspiracy, or are accounts of other accounts, or are infected by other well
known accounts. German eye witness accounts that admit the existence of
gas chambers, he alleges, were extracted by Allied torture after the war. Eye
witness accounts that come from Irvings own post-war interviews with some
of Hitlers loyal followers, such as Julius Schaub, on the other hand, are readily
believed.8
One of Irvings theories was that the gas chambers were in fact air raid
shelters for the SS. Van Pelt showed that the gas chambers would have been
very impractical air raid shelters; they were one and a half miles from the SS
barrack. He showed his slides in the court: he pointed out the undressing
room, the Zyklon B insertion columns, the dissection room, and the chimneys
of the crematorium. He explained how some of the buildings, originally built
as real, honest crematoria, were adapted and redesigned into gas chambers;
he showed plans that detailed the modifications that were necessary, stage by
stage, to convert innocent crematoria into gas chambers. He showed enlarged
wartime negatives of the gas chambers that had been taken by Allied bombers;
Irving examined the photographs closely, and said he could see no holes in
the roof. Van Pelt had already obtained scientific evidence from photographic
experts showing that the dots on the pictures could well be holes in the roof.
Irving argued that there were no holes, and that therefore no gas could have
been introduced into the chambers. [I]f you were to go to Auschwitz the day
after tomorrowand find a reinforced concrete hole where we anticipate it
would be from your drawings I would happily abandon my action
immediately9 was Irvings hollow boast. But van Pelt had already given the
answer: I have authored a report already in 1993 for the Poles in which I
actually argued that they needed very, very strict preservation standards, and
the last thing I would ever have done is start scraping away at the roof without
any general plan or archaeological investigations.10
Irving had first publicly supported the cause of Holocaust denial in early
1991 when he went to Canada to help in the defence of Ernst Zundel, who
was on trial for the crime of Holocaust denial. The defence commissioned
Fred Leuchter to write an expert report on the gas chambers at Auschwitz.
Leuchter was a designer of execution equipment in the USA. Even though he
was no expert, he went to Auschwitz, secretly chiselled holes in the remains
of some of the gas chambers, and submitted the samples for chemical analysis.
I discovered plenty of evidence in the archives indicating that Julius Schaub was one of Hitlers most loyal
followers. He had joined the Nazi Party in the early 1920s, taken part in the failed Putsch of 1923and
been decorated with various prestigious Nazi awards After the war he did his best to exonerate Hitler
from responsibility for the crimes of Nazism, claiming he had cursed the war and was always for peace.
He was not a very trustworthy witness, therefore. Evans, 2002, pp 6263.
9 Guttenplan, 2002, p 181.
10 Guttenplan, 2002, p 181.
133
134
He said that they recorded only very small traces of cyanide in the gas
chamber remains and relatively large traces in the delousing chamber remains;
therefore the gas chambers were never in fact gas chambers.11 The report was
flawed rubbish, said Rampton, Lipstadts barrister. It was pioneering work,
even though it has been superseded. Leuchter was barking up the right tree,
said Irving. Van Pelt said that the residues were different in the different types
of gas chamber due to differences of heat and humidity levels when gassing
people and clothing. The Leuchter report was, indeed, an amateurish report
produced by a man with no expertise, either historical or forensic.12 Irving
admitted that it was fatally flawed, but he insisted that Leuchter was
nevertheless right in his conclusions.
In his cross-examination, Irving grilled van Pelt on one document in
particular, questioning its authenticity. He rattled off questions: about a serial
number out of sequence, an incorrect rank for the signing officer, the initials
of the typist (which Irving said existed on no other document), even the precise
location of the margin. All these discrepancies, bragged Irving, suggested a
forgery. This is where Irving is happiest, rolling around in swastika-embossed
paper. He knows their mannerisms. On this terrain, Irving can be frighteningly
convincing.13 In fact, after two days research, van Pelt was able to authenticate
the document, and to give satisfactory explanations for Irvings anomalies.
One of the strategies of the defence was to present documents deliberately
ignored by Irving that showed things that he wished to deny. Irving responded
either by calling them forgeries, or by claiming that he had never seen them
and therefore could not be guilty of distorting them. This was not
fundamentally a trial about the truth of the historical account of the Holocaust;
it was a trial about David Irvings distortion. Thus Irving had to deny having
read books that he owned, and even ones that he had commented upon in
public, if they contained evidence that he claimed never to have known about.
The other expert reports produced by the defence were written by
Christopher Browning, by Peter Longerich, whose account detailed evidence
concerning the Holocaust outside Auschwitz, by Jaho Funke, whose report
examined Irvings contemporary links with neo-Nazis in Germany, and by
Richard Evans, whose report examined Irvings historiographical
methodology.
Browning said that the total number of Jewish victims in the Holocaust
was between five and six million. A good approximation could be made for
the numbers from Poland and westwards, but there is more uncertainty about
the figure in the Soviet Union, since records, both Russian prewar records
and Nazi records during the war, were not as accurate as in Europe. Irving
spent much time in cross-examination of Browning trying to dispute these
figures. He tried to suggest to Browning that the Madagascar plan (to send all
the Jews from the Reich to Madagascar) might have been a good one. Browning
11 Shapiro, 1990.
12 Leuchter had taken great chunks out of the wall instead of scrapings off the surface, thus greatly diluting
whatever residues were to be found there. Even more crass, he had also ignored the fact that the
concentration of cyanide gas needed to kill humans was far lower than that needed to kill lice in clothing,
and so failed to understand that, far from disproving the existence of the gas chamber as an instrument of
murder, his findings actually tended to confirm it. Evans, 2002, p 133.
13 Freedland, 2000.
argued that it could have been attempted only if the British had been defeated,
so that the Nazis could use shipping safely. Anyway, argued Browning, it was
only ever a bizarre fantasy; the results would have been disastrous, and a
large percentage of the people would have perished in an SS-run state. Irving
replied: I think the Jews are a very sturdy people. Irving argued that there
had been no explicit reference to killing at the Wannsee conference; Browning
argued that there were a number of passages whose meaning was viewed by
most people as transparent.
Richard Evans was not a Holocaust specialist, but a specialist in German
political history and in historiographical methodology. Evans claims that he
began the investigation into Irvings work with an open mind; he was paid
by the hour, he said, and not for his conclusions.14 Irving based his books on
primary sources; he is proud not to rely on the work of other historians. On a
first reading, said Evans, Irvings books appear entirely plausible. However,
he and his research students had carried out a most detailed and painstaking
investigation into Irvings sources. They followed up each reference, found
the documents to which they referred, and checked them. Evans found that
every piece of Irvings work that they examined in this way, not just those
that referred to the Holocaust but others that they examined as a control,
turned out to be a tissue of small manipulations rendering his entire output
absolutely worthless. An example Evans gave was drawn from Irvings
account of the main trial at Nuremberg. Irving claimed that Biddle, a judge at
Nuremberg, had commented about a witness in his diary, all this I do not
believe. So in Irvings work all the testimony of this witness was invalidated.
When the reference was checked by Evans, he found that the truth was that
Biddle had in fact said this I do not believe, clearly referring to a particular
piece of the witnesss testimony, and emphatically not to the rest, which he
certainly did believe. Irving had inserted the word all and changed the entire
meaning of the original.
Another example of Irvings distortion of the historical record was his
treatment of a document known as the Schlegelberger memorandum. Irving
used it in the 1991 edition of Hitlers War to show that Hitler could not have
ordered a policy of genocide against the Jews.15 The document included the
apparently startling information that the Fhrer had repeatedly explained
that he wanted the solution of the Jewish Question put back until after the
war.16 This undated and unsigned document was found in a file that had
been put together from Ministry of Justice papers after the war. Evans showed
how the accepted explanation for this document amongst historians was that
it was part of a discussion being held after the Wannsee Conference about the
fate of half-Jews and Jews in mixed marriages. This explanation fits well
with other documents from the same file, and with a meeting between Franz
Schlegelberger and Hans Heinrich Lammers which took place on 10 April
1942. It may, on the other hand, argued Evans, date from the summer of 1941,
when no fixed plan had yet been made for the final solution and when the
end of the war was thought to be only weeks away. Irving was pretending to
14 Evans, 2002.
15 As discussed in Evans, 2002, p 89.
16 Evans, 2002, p 89.
135
136
his readers that this document proved Hitlers lack of culpability for the
genocide, while he knew full well that it had in fact long been regarded by
professional historians as [proving] nothing of the kind.17
After the trial, Evans presented an interesting point of view in relation to
the often repeated argument in the press that a courtroom is no place to be
discussing and judging academic debate. Evans said that the rules and facilities
of the courtroom were, in fact, very helpful. In court, time was unlimited. If
Evans wanted to dispute the meaning of the precise placing of a full stop in a
document with Irving, for example, then he could do it; and he could do it for
hours, until he had made his point. This, Evans, remarked, was not always
possible in an academic seminar. Also, he said, the transcripting process in
the court was invaluable. It created an accurate record of what had been said.
If someone claimed they had not said something that they had in fact said, if
they changed their story subtly, then this could easily be shown in the
transcript. The court had resources of time, people and money that are not
usually available to academics.
Evans concluded that Irvings methodology is informed by the fact that
Irving thinks that he already knows the real truth; given this fact, the
documents may be manipulated a little in order that they should show this
true picture. Irvings work could not be regarded as history because it
consistently asserted things that the documents did not allow as possibilities.
There is vast space for debate and disagreement within the parameters of
what the historical evidence allows as possibilities; but Irving was not at all
constrained by the documents that he knew so well.
The defence spent some time showing Irvings motivation. Evans, Browning
and van Pelt had shown how he consistently lied about the historical evidence;
the defence now showed that the reason he did this was that he was a racist, and
was motivated by a wish to exculpate the Nazi regime and specifically Adolf
Hitler. His political project was to deny that the Nazis carried out the genocide,
and to show that, in any case, Hitler had not ordered one. This is the first step in
the rehabilitation of the Fhrer and his ideas. The defence found many examples
of Irvings racism. One of the most striking perhaps was from a passage in Irvings
diary in which he says that he sang a rhyme to his nine-month-old baby daughter
Jessica when half-breed children were wheeled past them in their prams:
I am a baby Aryan
Not Jewish or sectarian
I have no plans to marry an
Ape or Rastafarian.
Another example of Irvings racism was gleaned from a transcript of a speech
that he had made to his friends in the Clarendon Club. He regretted that
newsreaders at the BBC no longer wore dinner jackets when they read the
news. He suggested that on the BBC, in future, a newsreader in a dinner jacket
should read the serious news, then a lady should read the less important
news, the gossip about showbusiness and so on, and then Trevor McDonald18
should present the latest news about muggings and drug busts. I wish I could
go to Heathrow and get on a plane and land back in England as it was when
17 Evans, 2002, p 94.
18 Trevor McDonald is a well known black newsreader.
I was born in 1938, he mused in a speech. He feels queasy because there are
black cricketers in the England team:
I was speaking about what a pity it is we have to have blacks on the team and they
are better than our whites. I say its a pity because I am English I call it patriotism
patriotism is pride in a country that has been handed to you by your fathers. I
dont think there is anything despicable or disreputable about patriotism
The defence spent two days at the trial cross-examining Irving over his racist
speeches and writings. Irving laughed it all off as fun, or as patriotism.
One of the most telling pieces of evidence against Irving was a video
recording of a speech that he made in Tampa, Florida, in October 1995. It was
organised by the National Alliance, an American Nazi group. Jaho Funke
testified that Irving had spoken at eight of their events between 1990 and
1998. Irving denied knowing who had organised the meeting, even though
there was a very large National Alliance symbol visible close to him, and the
meeting had been introduced by a man who welcomed the audience to the
National Alliance event. The speech contained many unpleasant examples of
Holocaust denial, racism and antisemitism. But the recording of the speech
also showed, quite clearly, that David Irving considers himself to be part of
the movement. He uses the word we often. We are making progress; we are
beginning to cast doubt on the Holocaust legend; we are engaged in a heroic
struggle for truth. Irving was speaking to his comrades.
Funke, a political scientist from the Free University of Berlin, wrote a 140page report for the defence about Irvings links with neo-Nazis in Germany.
Using video clips of footage of Irving speaking in German at far right events,
Funke identified an assortment of leading extremists and neo-Nazis who had
also been present. Skinheads in boots were shown marching to a rally in Halle
in 1991, where Irving was one of the speakers. When he spoke they were heard
to shout Sieg Hell. Did you see me put my hand up to tell them to stop? Irving
queried. He went on to suggest that he had been shocked by some of his
audience. Did you get the impression that I was overjoyed? Was I happy? he
asked. Funke retorted that Irving had known the character of the event.
Funkes report said that Irving had strong and consistent connections with
many German neo-Nazi organisations between 1990 and 1993. Some groups
were subsequently banned for inciting racial hatred. How could I have
anticipatedthat they would be banned? asked Irving. As an intelligent
man who knows German, you could have known, replied Funke.
Funke told the court that Irving had said at a press conference in Berlin
that it is a defamation of the German people if one talks of extermination
camps or death camps. Irving said he was misquoted. Funke said that Mr
Irving committed himself wholeheartedly to the cause of revisionism, and
thus neo-Nazism, in Germany. For 10 years, until he was banned from
Germany in 1993, he was in a political alliance with the German Peoples
Union, an antisemitic party, and its leader Gerhard Frey.
Irving denied joining a toast to a certain statesman to mark what would
have been his 101st birthday at a 1990 Munich dinner. I had no glass as I
dont drink. If one has no glass and one doesnt drink, how can one toast? A
characteristic example of the arrogance of Irving; he uses this childish logical
trick and assumes that everyone is forced, against their will, to the conclusion
that nothing can be proved against him.
137
138
Irving claimed in the case that many Jews died while working and were
not murdered; he asked why there were doctors and hospitals at Auschwitz if
it was an extermination camp. Peter Longerich replied that the policy of
extermination through work was illustrated by the death auditsmaintained
by the camp authorities. The duty of Nazi doctors was not to keep inmates
alive but to keep their effectiveness as a workforce as high as possible.
Speaking later,19 Anthony Julius downplayed the importance of the Irving
case; no new knowledge or insight came out of it; his side had not wanted
the case to happen at all; it was important only to Irvings side. Therefore
the case would have been very important if Irving had won it. Julius also
argued that the written judgment, a 334-page document, gave the case some
importance because of its clarity, detail and authority. From his point of
view, something good came out of the case in the end. What he felt had
been achieved was this newly authoritative narrative that gave the truth of
the events of the Holocaust, and of David Irvings distortions, to the world
and to future generations.20
The legal construction of cosmopolitan social memory

If the cosmopolitan project is to have successes, some of the mythology that
underpins the ideologies of nationalism must be undercut. These mythologies
of nationalism are produced and reproduced through the telling and retelling
of particular national narratives, and through the suppression of others.
English nationalists, for example, are much happier telling themselves stories
about surviving Viking and Norman invasions and victory in two world wars
than they are about the racist exploitation of the inhabitants of their former
colonies. Some stories are distorted into glorious myth, while others are quietly
forgotten.
One institution of the nation state that plays a part in producing and
reproducing myths of nationhood is the legal system. Every trial is a drama,
a story; each has a dnouement where the judge pronounces the verdict, the
judgment, the truth. The truth that the judge pronounces is a national truth.
The citizens must be protected from this dangerous criminal; the publication
19 Julius, 2000.
20 There was a strange parallel to the Lipstadt v Irving case being heard in the same building at the same time.
Independent Television News (ITN) was suing the magazine Living Marxism for libel. Living Marxism had
published an article about the breaking of the story of Omarska and Trnopolje in the Western news media.
ITN journalist Penny Marshall and her cameraman, Jeremy Irvin, accompanied by Channel 4 journalist
Ian Williams and Ed Vulliamy from The Guardian, had been the first journalists to see and report on the
camps. The journalists had shot some videotape on 5 August 1992 from which was reproduced a well
known picture showing an emaciated Muslim prisoner at Trnopolje, called Fikret Alic, behind a barbed
wire fence. The media made much of this picture because of its obvious similarities to images of emaciated
prisoners from Nazi concentration camps. The barbed wire in the picture is not around the Bosnian Muslims;
it is around the cameraman and the journalists, wrote Thomas Deichmann in Living Marxism. The article
went on to argue that the picture and the account of the camps had been invented by the journalists in
order to propagate the myth of Serbian concentration camps in Bosnia. This case of left wing denial of the
Serbian campaign of ethnic cleansing and terror was shorter and simpler than the Irving case, and received
much less publicity. ITN and the journalists wanted to defend their reputations, and to defend the truth of
their scoop. Their story, indeed, had been a profoundly important one for the public understanding of
the war and for public pressure on the UN. The case was heard before a jury and was won by the journalists.
The damages that were awarded bankrupted Living Marxism.
of that official document is not in the national interest; this strike is

unconstitutional; that publication is obscene. Courts themselves play a
significant role in the production of narratives that define the nation. The
narratives that they produce are official narratives; they carry extra weight
because they have at their disposal certain state resources and powers. So
what kind of narratives do cosmopolitan courts produce and reproduce? An
important part of their function must be to produce cosmopolitan narratives;
narratives of the type that can play their part in undercutting myths of
nationhood. There are, of course, many other sources of cosmopolitan
narrative, as there are other sources of national myths; yet cosmopolitan courts
also speak with a particular authority. It is an authority that is derived from
their foundations in the discourse of human rights and in internationally
agreed legal rules and norms. Cosmopolitan courts have a role in mediating
between the claims of competing nationalisms that renders them well suited
to the production of authoritative cosmopolitan narratives.
Nationalism, as Ernest Gellner21 has argued, is a doctrine that holds the
nation state to be the natural unit of political and social organisation. The
term nation state is notoriously difficult to define. It is based on the idea that
people are naturally divided into nations, and that these nations achieve selfdetermination, self-rule, through their own sets of political structures, their
own states. There have been many attempts to define the nation in terms of
sets of criteria, for example Joseph Stalins 1912 definition:
A nation is a historically evolved, stable community of language, territory, economic
life and psychological makeup manifested in a community of culture.22
Yet these criteria are fuzzy, shifting and ambiguous,23 and it is easy to think
of examples of nations that lack one or more of these criteria. This difficulty
of defining the objective existence of the referent of the world nation focuses
attention back onto nationalism as an ideology, and onto the nation state.
There is agreement in the sociological writing on nationalism that nations
and nation states are modern phenomena, no more than one or two centuries
old; this finding is, of course, starkly at odds with the claim of all nationalisms
to be age-old communities that stretch back into the mists of time. Moreover,
nations are more the creation of states than the other way round; the
emergence of groups of people who feel a national belonging with each other
was in fact the result of, not the cause of, the development of the modern state.
Benedict Andersons24 anthropological approach to the question emphasises
the fact that the nation state is bound together by the telling and retelling of
myth. The use of the term myth in this context highlights the sacred or
pseudo-sacred nature of the narratives. They are narratives that social actors,
consciously and unconsciously, have succeeded in imbuing with that sacred
quality. Nations are imagined communities, first because they are based on
myths of foundation and of common history, and secondly because they are
so large that the relationship of one citizen with others can only be mediated
by ritual, by printed communication and through the mass media. A nation
21
22
23
24
Gellner, 1983.
Cited in Hobsbawm, 1995, p 5.
Hobsbawm, 1995, p 6.
Anderson, 1995.
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forges an identity through telling itself stories. Stories give a sense of direction
and continuity, and therefore identity and community.
Kevin Foster uses the term myth:
to describe a chain of associated concepts, usually rendered as a narrative, by
which individuals and communities mediate their personal and collective anxieties
and through which they are able to understand, express and communicate to
themselves and others a sense of their identity as members of specific social, cultural
and national groups.25
Foster discusses the forging of myth in relation to the Falklands War and British
identity. He argues that accounts of the war assumed a classically mythic form,
in Roland Barthes terms, by making a historical intention a natural justification,
and [making] contingency appear eternal. The decision to go to war and the
conduct of the war were presented as an expression of the essential character of
the British nation: there had been no other possibilities. The Britain that turned
defeat into victory at Dunkirk and that developed the Blitz spirit could only
have gone to war in the Falklands, and could only have emerged victorious.
The image of the heroic, modest but invincible British soldier is not only derived
from myths of Britishness but also bolsters those myths. Foster focuses on the
Falklands War as a struggle for ideological rather than physical terrain.26
Given that nation states are the ubiquitous form of political community in
our time, and that nationalism relies heavily on the creation of myths of
nationhood, then much of the writing about social memory focuses on its
nationalistic character. Narratives of nationhood are one of the pillars upon
which nation states are built and maintained. While the narratives speak of
timeless community, stretching back into the mists of history, the narratives
themselves, like the nations they constitute, are much more flexible than they
appear. Which narratives are to be told, which are to be heard, which are to be
accepted as national truth; these are questions of the utmost political
importance. There is always political controversy about how history and
religion are taught in schools; how are narratives of nationhood to be taught
to the next generation?
Norman Cigar27 argues that the processes of narrative creation occurred
very quickly in the former Yugoslavia at the end of the 1980s. It was the
conscious strategy of the nationalists to create and recreate ancient myths of
nationhood, to rewrite and retell the glorious history of Serbia or of Croatia.
Cigar argues that, contrary to the widely accepted myths that so quickly came
to be regarded as common sense in the late 1980s, Islamic-Christian coexistence, not genocide against the Serbs, was the rule during the 500 years of
Ottoman presence.28 In the 1980s, the Serbian nationalists brought the myth
of heroic Serbian martyrdom to the fore; Serbia had been the victim of many
centuries of Islamic domination. The idea of a Greater Serbia, as the only way
for Serbs to avoid this continuing domination, had been a core idea of the
Serbian nationalists since the 19th century. Now, the Serbian nationalists were
on the rise, and an important part of their work was to imbue Serbs with a
25
26
27
28
Foster, 1999, p 2.
Foster, 1999.
Cigar, 1995.
Cigar, 1995, p 12.
particular narrative of their past. In 1986, the Serbian Academy of Arts and
Sciences, an organisation of Serbias leading intellectuals, produced the
Serbian memorandum, which argued that the Serbian people had been
denied their destiny of a Greater Serbia following the Second World War by
the communists; Greater Serbia was a democratic right, and was the only
political programme for freedom. The Serbian nationalists wove narratives
of ancient victories and defeats, of Ottoman, and therefore Turkish, Muslim,
domination.
In 1989, Milosevic went to Kosovo, and with much rhetoric concerning the
battle of Kosovo of 1389, 500 years earlier, he proclaimed the end of Kosovar
domination over the Serbs. Similarly, the nationalists focused on remembrance
of the pro-Nazi Croatian Ustasa atrocities during the Second World War. The
wars in the former Yugoslavia have often been presented in the Western media
as the result of age-old conflict in the Balkans. Yet, as Cigar shows, it was in
fact a conscious reconfiguration and repopularisation of the narratives of ageold conflict in the late 1980s by the nationalists that helped to energise the
people for the wars of conquest and ethnic cleansing. Timeless myth can be
changed very quickly by purposive political action. The project of imbuing
particular social memories with a sacred and eternal quality is central to the
political work of nationalists.
Crimes against humanity, ethnic cleansing and genocide are inevitably
preceded by this political work of creating and consolidating timeless
narratives. How can these genocidal and mythical social memories be replaced,
fought against, or superseded?
In this book I have been surveying a facet of the tentative emergence of
cosmopolitan law. There is emerging a body of law and a set of institutions
that is developing the ability to try those responsible for violations of
international humanitarian law, crimes against humanity, ethnic cleansing
and genocide. Such trials are important in themselves, in order to hold to
account those who commit such crimes, and to deter others from committing
them. But in order to do this, a trial has first to establish a true picture of the
events under investigation. This function of finding truth is a particularly
important one in the field of crimes against humanity. One of the central
purposes of the Nuremberg tribunals was, particularly within Germany, to
publicise the truth about what the Nazis had done;29 similarly the International
Criminal Tribunal for the former Yugoslavia (ICTY) aims to show clearly what
the nature of the genocide and the ethnic cleansing was. The Tadic judgment
is a long and closely argued document showing how the war started in Bosnia,
how the politics of the communities evolved, how ethnic cleansing and
genocide was possible, how it was carried out, and who was responsible. The
29 [At Nuremberg] Justice was served, but, above everything else, in a strange way, in a dark poetic way, it
was memory that was confronted and celebrated at Nuremberg. When hundreds and hundreds of witnesses
emerged to piece together a storya story that we all must remember, although our memory and our
mind and our soul are too small to comprehend it, to take it all in. Our sanity was at stake. If we remembered
everything, we would lose our minds. But then, if we dont remember everything, we also lose our minds.
Nuremberg, therefore, was the repository of testimony. Hundreds, thousands, hundreds of thousands of
documents were introduced in evidence in Nuremberg. Thus, it was an important and meaningful event.
For the first time, I think, it gave memory such an exposure. Now we know that if there is one word among
others that also symbolised the dark years of that tragedy that has no pertinent name, it is Memory. Elie
Wiesel, Inaugural Raoul Wallenberg Lecture: Cotler, 1995, pp 1516.
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trial was about more than Tadic. It was about producing a version of the truth
of what happened; a version that claims authority because it is produced by
an impartial cosmopolitan court according to the rules, methods and traditions
of international law.
Legal processes of finding truth claim a particular authority since they have
the right to impose sanctions on those who are found guilty. Their decisions
are implemented by the use or threat of legitimated violence. The process
that we can see happening in the emergence of cosmopolitan law is also in
part a process of the development of a cosmopolitan social collective memory.
Courts receive particular and contradictory testimony; they act upon this
according to their own rules, and produce a single narrative. Cosmopolitan
courts receive nationally particularistic narratives as testimony that they
transform into an authoritative cosmopolitan social memory.
The Sawoniuk trial demonstrates this process very clearly. The narratives
that the witnesses brought to the court were all heavily influenced by their
own national social memories. The subject matter that was under investigation
by the court, the Holocaust and the Second World War, is centrally important
to the national myths of Israel, Belorus, Poland, Britain, Germany, the USSR
and Russia. All the nation states involved in the trial have different tellings of
the story of the war and the Holocaust, and these tellings are central to the
ways in which they produce and reproduce their national identities. To have
an identity is to have a story; a story that gives a sense of direction and a sense
of continuity. The way in which a nation involved in these events understands
its role in the Second World War and the Holocaust is one of the most crucial
determinants of its national identity. These stories were told and developed
for 56 years before the trial; and then the witnesses, imbued with their own
national versions of the big picture, came to court to give evidence on matters
intimately connected to central myths of their own nationhood.
When Ben-Zion Blustein tells his personal story, he is also telling the
founding myth of the state of Israel. His childhood was spent in an uneasy
coexistence with the majority community, which tolerated him but which was
always liable to intolerance; his family, and almost every Jew he knew, was
murdered by the invaders with the complicity of that majority community;
by a combination of great toughness, good luck, bravery, stubbornness, guile
and intelligence he managed to survive the genocide. After the genocide,
Blustein was one of those pioneers who built the homeland; a land where
Jews could be genuinely free, where they could make the desert bloom
Sawoniuk was born in poor but proud Poland. During his childhood it
was invaded first by the USSR; they closed down all private businesses and
shops; they caused Sawoniuk, and Poland, increased hardship and hunger;
and in place of food and prosperity they provided party men and propaganda.
The Germans invaded briefly in 1939, only to withdraw from that part of
Poland and allow the Russians to reoccupy. They invaded again after two
years of terrible poverty and terror under Stalinist rule. Poland was a plaything
in the hands of the Great Powers across its borders. Sawoniuk joined the police
in order to protect his town and his country from communist and Jewish
enemies who wanted to kill, exploit and enslave ordinary people like himself;
enemies who in fact killed his first wife in a raid on the police station.
Sawoniuks story was prevented from becoming central to the official collective
memory of Poland because of the military defeat of the Nazis; it was prevented
partly by the Nuremberg tribunals themselves, and also by the successor trials,
the latest of which was the one in London.
Belorus is a small nation that emerged out of the old USSR. It has a history
of occupation by Russia, Poland and Germany. During the last German
occupation there was a proud and heroic resistance that fought against the
brutal occupiers; Sawoniuk was a collaborator with those occupiers,
implementing their indiscriminate and bloody suppression of the popular
partisan movement. Fedor Zans uncle, aunt and cousins were murdered in a
raid in which Sawoniuk participated. Borisy, where the Belorussian witnesses
came from, was a partisan village. This spirit of Belorussian patriotism was
subsumed under Soviet domination until 1989, when the independent nation
re-emerged, one which was finding a voice of its own in the international
community.
Perhaps an additional nationalist mythology that impacted on the Sawoniuk
trial was a British one. The wood-panelled courtroom; the wigs of the court
officials; the impeccable manners of John Nutting and William Clegg; the
history of the Old Bailey: these all told of British fair play, understatedness
and reasonableness. English law allowed only charges of murder against the
common law; nothing continental or ideological like crimes against humanity
or genocide. Britain did not allow itself to be invaded during the war; and it
was central in the defeat of Nazi Germany. However, notwithstanding the
heroic role that it played, Britain is not a place for show trials
Another form of narrative presented to the court was that given by Chris
Browning; a narrative created by the norms and rules of academic
historiography. This tradition aims to take all the available evidence,
documents, eye witness testimony, trial transcripts, other historiography, and,
carefully, methodically and disinterestedly, to build up the best picture of the
truth that the evidence allows.
It was the task of the court to hear testimony that was necessarily informed
by these differing narratives, to process it and work on it according to its own
legal rules and norms, and to produce a judgment that was free of these
contradictory nationalist influences. It is as if a cosmopolitan court is a machine
whose inputs are national narratives, but whose output is a single
cosmopolitan one. The hardware of the machine is a set of developing
cosmopolitan institutions; the software is the developing body of cosmopolitan
law and the increasingly clear and precise body of rules, procedures and
precedents that are being produced by the institutions.
Crimes against humanity are exactly the kinds of events which national
social memories make, and of which they are made. In order for them to
occur in the first place, there are inevitably sophisticated and widely held
narratives that tell why the other group needs to be disposed of. The Jews
have, through the ages, been the cause of Germanys defeats and problems;
the Muslims in Bosnia have, through the ages, been collaborators with the
invaders against the Serbs; the Tutsi in Rwanda have been, through the ages,
the oppressors of the Hutu. This is one of the central reasons why international
courts are necessary. It is necessary to create institutions to deal with these
crimes that have some chance of raising themselves out of myths of nationhood
and ethnic superiority. When a group or a nation has survived such severe
disasters as genocide and ethnic cleansing, it weaves the narratives of these
disasters into its own tapestry of identity. When a court comes to address
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these events, it is forced to attempt to abstract the story of what happened

from its powerful embeddedness in narratives that are central to conflicting
national identities.
A central task of the ICTY is to carry out this work. It hears evidence
wrapped up in Croatian, Bosniak and Serbian narratives; it also hears academic
evidence. It is also able to hear evidence from organisations that are selfconsciously trying to be cosmopolitan, to differing extents, such as NGOs
and UN peacekeeping forces. The rules and norms by which it constructs a
cosmopolitan narrative are those of cosmopolitan law. The ICTY is engaged
in the task of creating and building those rules and norms. It is borrowing
principles and procedures from different legal traditions and binding them
into a body of law and precedent. It produces judgments that are, literally, in
the form of narratives.
The Kristic judgment,30 for example, finding Kristic guilty of genocide in
Srebrenica, is another remarkable document. In a little over 100 pages of text, it
contains 1,519 footnotes. Every assertion is backed up by evidence from the
trial or other sources. It outlines the origins of the war in Bosnia; it tells the story
of the siege and the cleansing of the town; it focuses on the Drina corps, of
which Kristic was Chief of Staff, and its role in the genocide; it focuses on Kristic
himself, and his role in the corps. A court is not a bad place to produce an
authoritative narrative. It has time, and is relatively well resourced; it has the
expertise of defence and prosecution lawyers and investigators, a panel of judges,
translators and transcriptors; and it has the power to call witnesses and experts.
The judgment in the Irving case could also be seen as a remarkable
cosmopolitan narrative. Irving often attempted to present himself as an English
nationalist rather than a neo-Nazi, but the narrative of Englishness that he
attempted to present was an unusual one. In court, and also in a television
interview with Jeremy Paxman on the night of the verdict, he presented his
racism as nothing more than a genuine expression of English patriotism:
Paxman: You said in your diary that you recited [the verse I am a baby
Aryan] as you passed a half-breed.
Irving: Yes indeed.
P: What is a half-breed?
I: Its something that didnt exist in England at the time that I was born
here, shall we say?
P: A half-breed, you would accept, is a term of racial categorisation?
I: I think youre absolutely right.
P: As is Aryan?
I: Youre absolutely right.
P: And youre seriously trying to maintain that theres nothing racist about
this verse?
I: Its a vestige of English patriotism in me and of my Englishness, not of
racism. I think youll find that 95% of English people of my generation
hold exactly the same attitude.
30 Prosecutor v Kristic.
P: I have never heard 95% of people of your generation reciting racist

verse like that.
I: Youve got to be able to write good verse, yes.31
Irving portrays his version of English nationalism as genuine, the view of
the silent 95%, rather than the official post-Second World War version of the
traitors like Lord Hailsham, whose treachery consisted in advising the British
cabinet in 1958 not to bring in immigration controls. The official version is the
multiculturalist one that emerged after the (mistaken) war against Hitler (who,
incidentally, knew nothing about the final solution). Events during that war,
such as the mass campaign of aerial bombing of German cities, were presented
by the official narrative of Englishness as heroic military victories. This made
it necessary for Irvings genuine history of the bombing of Dresden to be
written, which showed that when England was run by the traitors it
committed atrocities far greater than those committed by Englands genuine
friends. It only requires David Irving to show the 95% of honest English racists
the true history of the Second World War for them to see through the official
nonsense and revert to their instinctual racism. Thus, if only Irving could
explain the truth clearly enough, everything would revert to its natural state.
He told Paxman:
[T]hose who were in the courtroom will remember today that at the end of the trial
I said to the judge that I have to apologise for the fact that I have failed to express
myself with sufficiently articulate language so that you have understood the
historical problems with which you are confronted in this case.32
To what extent Irving believes in his alternative version of English nationalism,

rather than in some sort of German nationalism or supra-national Nazism, is
not clear. In Irvings narrative, there is a convergence between English and
German nationalisms; his rewriting of history was also a rewriting of German
history and of Germanys historical relationship with England. Its logic is
that there should have been no war between racial brothers.
In court, Irvings strange narrative of English and German nationalism,
and of the nationalism of the white race, was being judged against an academic
historiographical narrative; one that the Nazis might have called a Jewish
cosmopolitan narrative.
It could be argued that the court was not a cosmopolitan one, but rather
one that represented the official history of Englishness against Irvings
dissident version. But it was the nature of the subject matter and the nature of
the evidence presented by the Lipstadt legal team that pushed the British
court onto a cosmopolitan terrain. The crimes of the Nazi regime were
committed throughout Europe; they had already been the subject of the
Nuremberg tribunals; the claims of the Holocaust deniers are not bounded by
any national boundaries; Irvings commentary was daily put on his website
and accessed globally; and trials similar to this had occurred in other
jurisdictions, such as criminal trials for the crime of Holocaust denial in
Germany or the Zundel case in Canada. Lipstadt is an American whose book
had been published all over the world. She had been sued in England because
31 Newsnight, BBC 2, 12 April 2000.

32 Newsnight, BBC 2, 12 April 2000.
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146
that was where Irving thought he had the greatest chance of success. The
expert witnesses were American, Dutch, English and German. Many factors,
therefore, contributed to the British court taking on some of the characteristics
of a supra-national one.
But we are left with a paradox. Is not legal discourse itself, and the narratives
that it produces, equally susceptible to deconstruction? In this book we have
already examined examples of the insensitivity and the arbitrariness of legal
discourse. In the Sawoniuk case much relevant evidence, including some
survivor testimony and some documents, was ruled inadmissible by the judge
who closed the ears of the jury to it. At the ICTY the judges, to an extent, selfconsciously create the rules as they go along. In the Irving case, Irving was
alone while Lipstadt had the backing of a large corporation, an extensive legal
team, five leading academics and their research assistants. The charge is that
the legal discourse, and the rules that govern trials, create only a different
method of producing narrative, not necessarily a better one.
Law is not outside or above society, even if its own rhetoric requires that it
appear to be so. Legal language, argues Peter Goodrich, like any other language
usage, is a social practice andits texts will necessarily bear the imprint of
such practice or organisational background. He goes on to say that we should
treat legal discourse as an accessible and answerable discourse, as a discourse
that is inevitably responsible for its place and role within the ethical, political
and sexual commitments of its times.33 Certainly the narratives produced by
cosmopolitan courts are not, in some absolute sense, the truth. But neither,
in fact, do they claim to be. They claim to be judgments.
There are many ways of producing truth: law, fiction, journalism, art,
memoir, historiography, religion, science, astrology. All have their own rules,
methods and norms, but also their own claims and purposes. If we understand
these different approaches to truth-finding as social processes, then we do
not have to judge that one is authentic and the others fake; but nor do we
have to judge that they are all equally valid. While they overlap, they all have
distinct objectives and ways of operating.
Reiko Tachibana makes use of Michel Foucaults concept of countermemory, which Foucault puts forward as an alternative to [t]he traditional
devices for constructing a comprehensive view of history and for retracing
the past as a patient and continuous development, a view that must be
systematically dismantled.34 Tachibana focuses on the work of post-war
German and Japanese authors who write counter-memory: who do not seek
to create all-embracing historical narratives, but who instead write de-centred
and incomplete accounts that emphasise the subjectivity and selective nature
of any record of events. Such writing, continues Tachibana, seeks a liberation
of the reader from a dogmatic perspective on, or blindness towards, the legacies
of the Second World War, aiming instead at provocation towards an active
participation in history.35 Tachibana is interested in the ways in which authors
such as Gnter Grass and e Kenzabur have produced work that seeks to
tell truths of histories of mass brutality in micro rather than macro voices.
Tachibana tells how, in a letter Grass wrote to e in 1995, he recollects the fact
33 Goodrich, 1987, p 2.
34 Foucault cited in Tachibana, 1998, p 1.
35 Tachibana, 1998, p 2.
that 20,000 deserters from Hitlers armies were executed during the war. They
were hanged from trees with boards around their necks reading I am a
coward. These men, for Grass, should be remembered as the truly courageous
heroes of Germany.36 e praised the Japanese writers who had been producing
counter-memory in the post-war period:
In the history of modern Japanese literature, the writers most sincere in their
awareness of a mission were the post-war school of writers who came onto the
literary scene deeply wounded by the catastrophe of war yet full of hope for a
rebirth. They tried with great pain to make up for the atrocities committed by
Japanese military forces in Asia, as well as to bridge the profound gaps that existed
not only between the developed nations of the West and Japan but also between
African and Latin American countries and Japan. Only by doing so did they think
that they could seek with some humility reconciliation with the rest of the world.37
Memoir, fiction and historiography are three irreplaceable methods of telling

truthful stories about totalitarianism. Cosmopolitan law is another. Law does
not produce the truth, it produces a truth; it is not the antidote to totalitarianism,
but is one method of fighting against it. If you want to know what happened
at Srebrenica, and how many Muslim men were murdered when the town
fell, then a good way of finding out is by reading the Kristic judgment;38 if you
want to know how many people were killed during the Holocaust, read the
Irving judgment.39 Different forms of representation have different strengths
and tell different kinds of stories. Primo Levi 40 and Elie Wiesel 41 can
communicate with an immediacy that gives us an idea of what it was like for
them to be taken from their homes to Auschwitz. Claude Lanzmanns film,
Shoah, which begins by showing Simon Srebnik revisiting Chelmno, where
he was forced to sing folk songs to Nazis as a young boy, as well as burn the
remains of those gassed in their vans, communicates with a different sort of
immediacy.42 None of these can show definitive truth, but they show different
aspects of the whole. All such forms of representation demand to be read
critically, with a focus on what they are, where they come from and what
kind of truth they aim to tell.
During the Sawoniuk trial, Ben-Zion Blustein wanted to give his testimony.
He wanted to tell what it was like when nearly everyone he knew was killed
one day; he wanted to tell what it was like to see his family try to commit
suicide; he wanted to tell us that we must believe that such things really
happened. The court had a different aim: it needed to judge, beyond reasonable
doubt, whether Sawoniuk was guilty of particular crimes. Blustein certainly
knows better than any of us what it was like for him. The strength of the legal
process is that it aims to bring together different forms of evidence for a
particular purpose: to guard against the danger of convicting an innocent
person. Because the legal process has such severe safeguards built in, it
produces, as a by-product, its distinctive form of authoritative narrative.
36
37
38
39
40
41
42
Tachibana, 1998, p 6.
e Kenzabur in his Nobel Prize acceptance speech in Stockholm in 1994: quoted in Tachibana, 1998, p 250.
Prosecutor v Kristic.
Irving v Lipstadt judgment.
Levi, 1987.
Wiesel, 1981.
Lanzmann, 1985.
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Lawrence Douglas43 is critical of Hannah Arendt44 for arguing that the main
business of the Eichmann trialthe weighing of charges brought against the
accused, the rendering of judgment and the meting out of due punishment
was in danger of being undermined by the courts wish to accomplish other
purposes as well, such as education, the writing of history and the creation of
a forum to host survivor testimony45 Douglas argues that Holocaust trials
have rightly been concerned with these broader issues as well as focusing on
the particular guilt or innocence of the accused. This dispute is apparently
about the weight that the two writers assign to the different functions of the
trials. But Arendt, in fact, certainly did appreciate the Eichmann trial as a
forum for setting out an authoritative narrative of the events of the final
solution: most of her book on the trial is taken up with a repeated presentation
of the evidence presented in Jerusalem of the detailed picture of the genocide
across Europe. And Douglas certainly does admit that the primary
responsibility of a criminal trial is to resolve questions of guilt in a procedurally
fair manner.46 For Arendt, it is the foundation of the fair procedure, designed
to resolve questions of guilt, upon which the value of the narrative produced
is based. For Douglas, the aim of doing justice to the defendant seems to be
parallel to the other aims, rather than one upon which the subsidiary functions
rest. The Eichmann trial, he says, even more explicitly than Nuremberg,
was staged to teach history and shape collective memory This mindfulness
of the past was meant, in turn, to support the Zionist politics of the present.47
The question becomes not whether it is a legitimate function for a trial to
have a role in shaping collective memory, but what kind of collective memory
it shapes. Arendts disquiet about the Eichmann trial was not about whether or
not it had a function in educating people about the Holocaust. Rather it was
about the tension that ran throughout the trial due to the courts constitution as
a hybrid or transitional form between national and cosmopolitan. She defends
Israels right to kidnap and try Eichmann because a trial based on more
cosmopolitan principles and institutions was not on the agenda. She criticises
the prosecutor, Gideon Hausner, and the Prime Minister, David Ben Gurion,
for trying to build the trial into the foundation of the nationalist collective
memory of the state of Israel. She praises the judges for standing against that
project and for limiting the court to the task of trying Adolf Eichmann. The
methods that cosmopolitan trials use to come to their judgments are ones that
seek to produce a narrative free from national particularity. But the Eichmann
trial was also a national trial, dealing with a subject matter that was central to
Israeli national identity. Arendt was not critical of the trials function of producing
authoritative narrative of the Holocaust; she was critical when Hausner tried
to use it to tell an Israeli nationalist narrative about the foundation of the state.
By 1987, the Israeli legal system was ready to subordinate entirely the
requirements of a fair trial to the requirements of restaging national drama.
John Demjanjuk was accused of being Ivan the Terrible, a gas chamber
operator at Treblinka. The trial turned into a drama of collective unburdening,
43
44
45
46
47
Douglas, 2001, p 2.
Arendt, 1994a.
This discussion of the Eichmann trial is indebted to Robert Fines conference paper: Fine, 2002b.
Douglas, 2001, p 2.
Douglas, 2001, p 3.
a public rehashing of both the history of the Holocaust and the horrific tales
of the survivors.48 But they had the wrong man. Demjanjuk was accused on
the basis of a questionable identity card49 that allegedly linked him to Sobibor;
it was Treblinka survivors, however, who identified him as Ivan on the basis
of photospread identification procedures in which his photograph was about
twice as large as the others and significantly clearer.50
Willem Wagenaar, a Dutch psychologist who had previously testified as
an expert witness on the subject of memory at 40 trials, gave evidence for the
defence, telling the court that the photospreads conducted in the Demjanjuk
case lacked any evidential value.51 Later he wrote that he knows of no other
case in which so many deviations from procedures internationally accepted
as desirable occurred.52 The court allowed spectators in the theatre where the
trial was held to shout abuse at the defence lawyers and the defendant.
Demjanjuk was convicted and sentenced to hang, but on appeal the conviction
was overturned. Evidence from the crumbling Eastern Bloc, which the US
Justice Departments Office of Special Investigations had known about at the
time of the trial, showed that Ivan the Terrible was, indeed, another man.
The production of authoritative narrative is a by-product of procedurally and
substantially fair trials; if the production of narrative is the central goal of a
trial and justice is subordinated to it, then there can be no authoritative
narrative.
There are two cosmopolitan tribunals, for Yugoslavia and Rwanda; the
International Criminal Court is facing substantial opposition from the United
States. In contrast, national legal systems are well developed across the world.
There can be no question of waiting until some notional point in the future at
which cosmopolitan courts become institutionally mature before proceeding
with the business of conducting cosmopolitan trials. In this book I have
discussed a number of examples of cosmopolitan trials being organised under
national legal systems: the cases of Irving, Sawoniuk, Eichmann and Demjanjuk.
Many other significant cosmopolitan cases53 have also been tried in national
courts. If Osama Bin Laden was captured, there would be no reason to oppose
in principle a trial in the United States for crimes committed in New York and
Washington DC. The key aspect of cosmopolitan trials is not the particular
institutional shape that they take but the fact that they happen and they happen
fairly, that they actualise the principles of cosmopolitan law. In the Eichmann
case, the court successfully resisted pressure to bend towards the needs of
Israeli nationalism; in the Demjanjuk case it did not. A supra-national
cosmopolitan court is necessary to try cases where national legal systems are
unable or unwilling to hold fair trials.
Whether actualised within the framework of a national or an international
court, cosmopolitan law has the particular advantage of containing within
48 Douglas, 2001, p 98.

49 The judges ignored the clearest evidence that the crucial documents (delivered to Israel from the Kremlin
by the corrupt Dr Armand Hammer)were forgeries. Robertson, 1999, p 223.
50 Sheftel, 1998.
51 Sheftel, 1998, p 164.
52 Wagenaar, 1988, p ix.
53 Such as the trial of Klaus Barbie in France; the trial of Ernst Zundel for Holocaust denial in Canada; the
attempts to force General Pinochet to stand trial; and the whole host of national Nuremberg successor
trials in Germany, Poland and other countries which had been occupied during the Second World War.
149
150
itself mechanisms that aim to rid judgments of national particularity; it also

has a particularly concrete connection to the discourse of human rights. It
contains mechanisms that aim to make it more reliable for its purposes than
raw witness testimony or memoir. None of these mechanisms are perfect,
none produce a result that can be regarded as absolute. But we do not expect
law to be able to produce some sort of extrasocial absolute. The narratives
that it does produce are imbued with a certain further social power; and
perhaps they contain enough of the sacred to shake the certainty of eternal
myths of nationhood and ethnic superiority.
Chapter Eight
Conclusion
Costas Douzinas tells how Spanish soldiers, in response to the Napoleonic
invasion, unfurled banners that read Down With Freedom. He suggests that
the oppressed may soon be ready to raise the slogan Down With Human
Rights.1 He understands the current supremacy of the rhetoric of universal
rights to signify their weakness as a means by which ordinary people can
seek to limit the power of state sovereignty For Douzinas, the concept of human
rights is at its strongest when it is understood as a contemporary form of
natural law, sharing a common tradition of resistance and dissent from
exploitation and degradation and a concern with a political and ethical utopia,
the epiphany of which will never occur but whose principle can stand in
judgment of the present law.2 He connects the triumph of human rights to
the post-Cold War idea of the end of history3 that posits pragmatism as the
only legitimate political framework and rejects ideology or utopia as nave,
dangerous and discredited. The end of human rights comes when they lose
their Utopian end.4
Human rights may be useful for fighting tyranny and for conceiving of a
better world, but for Douzinas those positives are greatly outweighed by the
negative and destructive forces that are mobilised under their banner. The postSecond World War codification and institutionalisation of human rights in
tribunals and charters is opposed by Douzinas to the self-organisation of those
whose lives have been blighted by oppression or exploitation. He proposes to
leave the UN and their diplomats to their standard setting and their lunches
and return to the state or the community, the only territory where human rights
are violated or protected.5 He follows Arendt in focusing on the plight of
refugees who are denied even the right to have rights by virtue of their expulsion
from their particular communities and the refusal of other communities to allow
them to join. He re-emphasises the centrality of state sovereignty as the centrally
important terrain for the battle over rights in a globalised world.
Douzinas does see clearly that the problem of exclusion is at the heart of
the concept and the history of national communities and of a polity based on
the rights of citizenship.6 Yet he is unwilling to embrace a project of anchoring
human rights, which do not have a foundation in the exclusion of non-citizens,
in supra-national institutions which have some power to enforce them. The
1
2
3
4
5
6
Douzinas, 2002.
Douzinas, 2000, p 380. Also: Human rights are the necessary and impossible claim of law to justice. (Also
from p 380.)
Fukuyama, 1992.
Douzinas, 2000, p 380.
the modern subject reaches her humanity by acquiring political rights which guarantee her admission
to the universal human nature, by excluding from that status those who do not have such rights. It is the
law of the nation state which defines the alien as alien and the refugee as refugee. The alien is not a citizen.
She does not have rights because she is not part of the state and she is a lesser human being because she is
not a citizen To have citizens we must have aliens, to have a home or a home country others must not
share it Douzinas, 2000, p 142.
152
more that human right gains an institutional and worldly existence, the less
he likes it, since in that case it moves away from its utopian form as a measure
of the existing world and into the compromised terrain of actuality.
Just as Arendt told us that the Rights of Man was compromised from its
inception, due to its necessary realisation as the right of the citizen, so Douzinas
tells us that human rights were always compromised by precisely the same link,
that of rights with national sovereignty. The major powers, in the period of the
post-war codification of human rights, he tells us, unanimously agreed that
these rights could not be used to pierce the shield of national sovereignty. The
new body of human rights and humanitarian law, and the possibility of its
institutional actualisation, was a promise made by the victorious powers not to
replicate the crimes of the Nazis. It was a statement that they accepted that there
was at least a basic minimum of human community. They needed to make that
promise for purposes of legitimation, to draw a line under the old regime.Again,
after 1989, the major powers renewed their commitment to the rhetoric of human
rights in order to legitimate their victory over communism. Douzinas says:
The contradictory principles of human rights and national sovereignty,
schizophrenically both paramount in post-war international law, served two
separate agendas for the great powers: the need to legitimate the new order through
its commitment to rights, without exposing the victorious states to scrutiny and
criticism about their own flagrant violations Once again human rights were a
main way for underpinning the power of states.7
For Douzinas, the use to which the great powers put the concept of human
rights expresses the central truth of human rights. Their existence as cover for
the ambitions of the powerful carries more weight than any other; their
existence as an updated form of natural law against which we can measure
the actual world is important, but only to the extent that it is kept clean, out of
the compromised actuality of international law.
The thesis I have been arguing in this book is rather different. It is that the
great powers, for purposes of legitimation, have allowed cosmopolitan law
to emerge and have allowed it a certain institutional existence; they have
always attempted to keep control of it and prevent it from attaining an
independent existence; they will not always succeed in thus controlling it
because that to which they are forced to agree for purposes of legitimation is
precisely that which makes it possible for cosmopolitan law and its institutions
to gain a life of their own.
The concept of crimes against humanity is powerful. Its acceptance by the
major powers as a central part of international humanitarian law constitutes
an acceptance that such crimes are the business of humanity as a whole. It is
a recognition that there is no sovereign right to commit such crimes and that
the claim made by cosmopolitan law, that it has jurisdiction within all
sovereign states in relation to such crimes, is legitimate. The actuality of
international tribunals competent to prosecute crimes against humanity
underlines the validity and legitimacy of the concept.
The reason that cosmopolitan law cannot simply be wheeled out for
purposes of legitimation and then pushed back when it interferes with the
business of government is that it attains an independent existence from the
7
Douzinas, 2000, pp 11819.
Conclusion
powers that allow it to develop. The need for legitimation is enduring;

legitimation is not a project that is achieved, but one that is continually in
need of renewal. Douzinas is right to say that the principles of human rights
and sovereignty are contradictory; he is also right to say that they are both
paramount in post-war international law and that they are intertwined
principles that develop together. Yet his conclusion suggests that one is
somehow more real, more enduring, more powerful than the other. He is not
right to suggest that sovereign power is real while human rights exist only as
epiphenomena, as tools that have the function of entrenching it. Legitimation
is not just a trick; people are not so easily fooled.
The Rights of Man developed alongside the national state, which excluded
non-citizens from rights; human rights developed alongside the principle of
national sovereignty, which allowed states to ignore them. These are not
questions of form and content or of phenomena and epiphenomena but of
the dialectic that runs, in many different forms, throughout the heart of
modernity. Both have a real and embattled existence. Cosmopolitan criminal
law and human rights cannot be reduced to state power and sovereignty since
they have emergent properties. They have the possibility to emerge as
structures in a social reality with a certain independence of their own. There
is a struggle between the powerful states, who have an interest in allowing
them a limited but controllable independence, and the immense power that
is immanent within the concept and actuality of cosmopolitan law.
This book has focused on an apparently institutional antidote to
totalitarianism. It is concerned with the development of official structures
and institutions that aim to deter or punish the biggest crimes known to
humanity. If, however, social life is understood as a whole, without particular
explanatory emphasis placed on one sphere or another, then it can be seen
that the dichotomy between people-based strategies and institutionally based
strategies begins to break down. A cosmopolitan politics that informs the
struggles of people against totalitarianism is not counterposed to a
cosmopolitan law that aims to create official structures that struggle against
totalitarianism. Popular movements can be powerfully reinforced when global
institutions add legitimacy to their claims over locally based tyranny.
Arguments to the national interest which aim to silence local opposition
may be counteracted by the authority of cosmopolitan law. Supra-national
responses may be called into existence, and made practicable, by local
struggles. It is not necessary to choose between the local and the global, or
between the official and the unofficial; but it is necessary to choose between
cosmopolitan principles, those that are based on the fundamental equality of
worth of all human beings, and particularist principles, those that assert the
primacy of the claims of one group over another.
Douzinas argues that universal morality and cultural identity express
different aspects of human experience,8 and that the elevation of one over the
other would result in a dangerous essentialism either of the universal or of
the particular. Both principles, when they become absolute essences and define
the meaning and value of culture without remainder or exception, can find
everything that resists them expendable.9 The illustration he offers is the
8
9

153
154
futility of choosing between the Serbian massacres of Kosovars in the name

of community and the Allied bombing of Serbia in the name of humanity.
Douzinas says that he is not against external intervention to prevent genocide
in principle, but he lays down a list of stringent conditions that such an
intervention must meet in order to win his support.10 None of these conditions
exists today, he admits, and it would be pious to expect that they will develop
soon. In the meantime, he will continue to watch genocides live on CNN,
oppose military action to stop them, and yearn for the long distant future
when the world has been radically remade; only then will he support external
military intervention to save people from genocide.
Humanitarian intervention and cosmopolitan trials are two aspects of the
same process: intervention is necessary if it is still possible to prevent or stop
a crime against humanity, whereas a trial is necessary if that process has already
failed and such a crime has actually taken place. The central legal claim is the
same: an outside force claims the right to override the national sovereignty of
the state where the crime takes place. For intervention this takes the form of
sending in forces. For trials it takes the form of sending in investigators, and
perhaps a force able to arrest suspects; the external court, anyway, claims
jurisdiction within the state where the crime took place.
Douzinas is in favour of the concept of human rights but is against its
actualisation. For him human rights are at their strongest when they are
Utopian and at their weakest when they are tied to institutions or actions in
the existing world. The actualisation of a universal necessarily involves its
particularisation. It becomes tied to particular interests and to particular
projects. Appeals to universal values have often accompanied the greatest
abuses of human rights. But each particularisation of a universal is distinct.
The horrors of colonialism and Stalinism have been perpetrated in the name
of universal values. American interventions into Vietnam, into Kosovo, into
Afghanistan and into Iraq have been based on similar claims. International
tribunals and human rights instruments are posited in the name of universal
values. It is necessary to interrogate these claims closely rather than simply to
disqualify all of them on the basis of the disqualification of some.
It is possible to defend a cosmopolitan approach to politics, one which is
based on a fundamental human equality of right, without elevating that
universal principle to an essential absolute which finds everything that resists
it expendable. If we accept one claim to universality it does not bind us to
accepting all claims to universality. The fact that the North Atlantic Treaty
Organisation (NATO) intervention into Kosovo was done in the name of
humanity and the Serbian campaign of ethnic cleansing against the Kosovars
in the name of community does not make it impossible to make distinctions
10 There must be a new international framework which will organise intervention independently of the
interests of the powerful states; the role of governments and governmental organisations such as NATO
should be minimised; non-governmental organisations should be actively involved in decision making;
the aims and methods of the intervention should be removed from the power games of presidents, prime
ministers and generals and focus on protecting individuals; the military should be in close contact with
local democratic organisations and observers and should aim to enable them to protect civilians and help
them overthrow the murderous regime; a clear set of guidelines should regulate the conduct of war and
minimise casualties on all sides; such a war should aim to rescue the victims and prevent putting more
people at risk and not to engage another government. Douzinas, 2000, pp 14041.
Conclusion
between the two. And the Kosovo intervention was not the Vietnam War,
was not the Gulf War, was not the Second World War: it was itself.
Milosevics claim that the campaign against the Kosovars was carried out
for the protection of the community in Kosovo is currently being tested in
court. It is a false claim; as is Douzinas apparent claim that the conflict was
more appropriately characterised as an equal fight between two fratricidal
nationalisms11 than as a campaign of ethnic cleansing by a Serbian state
machine which had previously carried out other such campaigns and which
had been brutally running Kosovo as a colony for 10 years.12 And NATOs
claim that the intervention was carried out for humanitarian reasons is in
part credible. Undoubtedly, it was also motivated by a number of interests;
an interest in stability; in preventing a huge refugee crisis spilling over borders
and destabilising neighbouring states; in thwarting Greater Serbian expansion;
in developing, testing and showing off military power and technology; in
diverting domestic electorates from domestic politics. NATOs strategy was
also influenced by interests; centrally, the interest in not seeing NATO body
bags arriving back home. In its decision to intervene, there was a component
of self-interest and a component of political will to prevent a repetition of
Bosnia and Srebrenica. It is necessary to judge each claim. Universals are
necessarily particularised.
This book has considered exactly that process which compromises universal
values: their actualisation in the world as it exists plunges them into arenas of
competing powers and interests that often overwhelm them. This book is not
a general defence of universal values but an effort to trace one set of their
particularisations. I have argued that in cosmopolitan criminal law it is possible
for universal values to find a worldly existence that is not wholly subverted
by power and interest.
It is not enough to set out a list of conditions for humanitarian intervention
or for humanitarian law which can never be met but which would, in an
imaginary world, allow us to support such interventions. It is necessary to
find ways of intervening to prevent genocide and ethnic cleansing in the world
as it exists and not in the world as we would like it to exist. It is necessary to
find ways of holding criminals like Milosevic to account in this world and not
in the next. It is also necessary to find ways of holding to account individuals
like Saddam and Sharon, Putin and Kissinger, Xiang Zemin and Pinochet.
But principled opposition to all existing possibilities is not a serious way to
relate to actual developments. We cannot stand aside from the world as it is
in order to keep ourselves and our ideas pure:
To recognise reason as the rose in the cross of the present and thereby to delight in
the presentthis rational insight is the reconciliation with actuality which
philosophy grants to those who have received the inner call to comprehend13
This book is about tracing the trajectory of the development of cosmopolitan

criminal law as it exists. Cosmopolitan law is hypocritical and unfair; it is
saturated with realpolitik and the fear of the great powers; it is compromised
by its partiality; it is crippled by its lack of money, resources, publicity and
11 Douzinas, 2000, p 137.

12 Demjaha, 2000, p 33.
13 Hegel, 1991, p 22.
155
156
political support. I do not want to reheat the old brew of cynical critique, nor
do I want to weave utopian dreams of a world made safe by good policemen
and judges; I have focused on existing developments, and searched for the
rose in the cross of the present. There is a seed within the compromised present
that is as radical and exciting as the dreams of the utopians; there are also
trends, potentialities and events that are as dark and terrifying as the
nightmares of the cynics.
The strongest critique of the existing cosmopolitan courts is that the process
that decides who will be tried is entirely problematic. It is a critique not of the
universalist values of the process but of the aspect in which it fails to be universal.
The International Criminal Tribunal for the former Yugoslavia (ICTY) is possible
because it does not threaten the interests of any of the great powers. There have
been no trials of Americans for the Vietnam War, no trials of Russians for
Chechnya, no trials of Chinese for Tibet. Is it possible for cosmopolitan courts
to have any genuine independence from the great powers?
At the moment, there is not much independence, but there is some. The
great powers, with their vetoes in the Security Council, are in control of where
and when ad hoc tribunals are set up, and under the International Criminal
Court (ICC) treaty they will be in control of where and when the ICC
prosecutors will be allowed to investigate. However, that control is never
absolute or guaranteed by the powers. Social institutions have emergent
properties; they are never absolutely closed. Bourgeois domination of social
life, in contrast to totalitarian domination, allows space and relative freedom
for social institutions to change, develop and live. Even if human rights and
due process were only rhetoric, the rhetoric itself would grant some space
and autonomy to the institutions that are based upon it. It is clear that the
judges and the prosecutors have a certain independence of action and decision.
The judges are not told how to find. The chief prosecutor showed herself able
to indict Milosevic at a moment during the Kosovo conflict when it might
have been inconvenient for NATO. As Otto Kirchheimer14 argues in relation
to Nuremberg, one method available to the great powers of reacting to
genocide is due process. The great powers allowed the ad hoc tribunals to
administer a small part of their power by prosecuting some of those responsible
for crimes against humanity. An event can be both a manifestation of power
and a legal trial at the same time. It may be a means of asserting power, but
not arbitrary power.
Can it be rightly argued that cosmopolitan law is nothing more than a
means for pushing Western values onto the rest of the world? It is particularly
hard to make this criticism stick when discussing crimes against humanity.
As far as I am aware, there is no one who argues that genocide is traditional
in a particular culture, and that therefore the imperialist West has no right to
march in and thrust its own values onto those for whom genocide is an ageold and legitimate way of life. If human rights mean anything, they mean
that there is universal agreement that a social formation, a group of people,
must not be allowed to murder entire populations. The argument that human
rights are just the values of the rich does not fare much better with less extreme
examples of threats than genocide, since human rights abuses are perpetrated
14 Kirchheimer, 1969.
Conclusion
by the powerful against the powerless. And the argument that human rights
abuses are traditional within particular cultures, and should therefore not be
criticised, leaves the voices for freedom within those cultures isolated and
unsupported. Such an argument is often, anyway, a misrepresentation of the
actual traditions of the culture in question. It may be true that human rights
are more likely to be enforced when they have powerful backers; it may also
be true that many atrocities have been committed in the name of human rights;
but these facts do not strip human rights of their legitimacy, nor do they show
that human rights cannot act as powerful mobilising principles for the
powerless.
Would people in imminent danger of genocide be better off relying on their
own self-organisation than on the international community and cosmopolitan
law? Would someone being mugged on the street be better off attempting to
defend themselves, or waiting for the police or a criminal trial for their
assailant? Certainly, there is a right to self-defence, and self-defence, if it is
possible, must be legitimate. Crimes, however, are committed against people
or groups who are unable to defend themselves, who are unable to stop the
crimes being committed. If self-defence were always possible then law would
be redundant. Conversely, if law were always effective, then self-defence
would rarely be needed. There is no necessary conflict between international
intervention from above and self-defence from below; a conflict is possible,
but not inevitable.
There was a conflict in Bosnia between outside help and self-defence. For
example, in Srebrenica the UN forces actively persuaded the Muslims to stay
in their homes, and brokered an agreement of which it was a condition that
the Muslims should disarm if they were to receive outside help. Similarly in
Kosovo, those at risk of genocide were forced to disarm and give up their
claims to statehood before international help was forthcoming. At the time of
the war in Bosnia, there was some disagreement between the Americans, who
leaned towards a policy of arming the Bosniaks so that they themselves would
not need to intervene, and the Europeans, who wanted to keep the arms
embargo in force as a price for their own help, thus disempowering the
Muslims in particular, since the Serb forces were already well armed. Thus, it
is not an argument that suggests that the international community should
refrain from intervention on behalf of those at risk from the greatest imaginable
crime, for fear that it might inhibit the efforts of the victims to defend
themselves; neither is it an argument that suggests that when self-defence
has been unsuccessful, the perpetrators of the crime should not be brought to
justice. This experience warns people at risk to be mistrustful of those who
suggest that they should sacrifice self-defence in order to encourage outside
help. And it means that in some situations, such as that in Bosnia, the
international community must be clearer about who is attacking whom and
who is at risk of genocide from whom.
A policy of neutrality between criminal and victim will not do; neither will
one that seeks to prevent unarmed victims from arming themselves in selfdefence. At the same time, it is true that self-defence against a perceived threat
of genocide will often take the form of nationalism, and that the most
dangerous, exclusive and ethnic nationalisms always present themselves as
being at a special and imminent risk of eradication from outside; aggression
is often presented as self-defence. These points do not bolster an argument
157
158
against cosmopolitan law. The best situation is one in which outside

intervention and local self-defence bolster and reinforce each other; where
legal proceedings against perpetrators strengthen and give confidence to
indigenous movements, and those local campaigns and forces demand and
thereby add strength and legitimacy to international help. When a group is in
imminent danger of genocide they are, by definition, unable to defend
themselves. Then, the world is faced with a choice: intervene or watch.
Is it possible for cosmopolitan trials to be fair trials? The jurisdiction that is
organising the trial may not have state power where the offence was
committed; witnesses may be hostile or intimidated; forensic evidence may
be difficult to collect; there may be language barriers and a conflict of national
cultures; judges may be biased, particularly in the absence of juries; witnesses
may be politically motivated; rules of evidence may have to be looser than in
national trials; media coverage can warp and infect testimony; witnesses can
be provided by governments hostile to the defendant; the great powers can
require certain politically useful verdicts. The best way I can answer this
question is to say that the trials I have observed and reported in this book
have been, more or less, as far as I can judge, fair trials; the courts have
developed strategies to overcome these difficulties. The evidence presented
here shows that it is harder to organise a fair trial under these circumstances,
but it is possible. The judges I have observed, particularly in the Sawoniuk,
Tadic, Blaskic and Irving cases, have appeared to be thoughtful and fair.
Are individuals scapegoated for crimes for which there is, in fact, much
wider responsibility? The Lockerbie trial was held in the Netherlands, under
Scottish law, to try two defendants who had been handed over by the Libyan
state for the bombing of an American airliner. This trial seems to have
exemplified some of the possible shortcomings of cosmopolitan law. It was,
like the Sawoniuk and Irving cases, a hybrid of national and cosmopolitan
justice. It seems, however, to have been more compromised by the
requirements of realpolitik than the crimes against humanity trials that I have
been discussing. One defendant was found guilty on shaky circumstantial
evidence; the Libyan state, and its secret service, seem to have been offered
some sort of de facto immunity in return for handing over the suspects; Britain
and the USA want to appear to have secured justice in order to relieve the
pressure put on them by the families of the victims. Now normal relations
between Britain and the USA and Libya can be resumed.15
The trials that I have reported in this book are not compromised in the
same way as the Lockerbie trial. The conviction of Sawoniuk did not thereby
exonerate Hitler; the conviction of Tadic did not exonerate Milosevic; the
conviction of Blaskic did not exonerate Tudjman. While these three are certainly
unlucky to have been brought to justice, given that the vast majority of their
comrades have escaped, their sentences were not unjust. They were not
scapegoats. The failure to try Hitler or Tudjman, while serious, does not make
the trial of less central figures meaningless.
15 [The UK Foreign Secretary] had earlier announced that he would support the suspension of international
sanctions placed on Libya by the United Nations as soon as the [suspects] were handed over for trial.
Colonel Gaddafi would have sought assurancesthat sanctions would not be reimposed at a later date,
even if any testimony was offered during the trial suggesting a direct link between the bombing of Pan Am
Flight 103 and the Libyan regime. Wallis, 2001.
Conclusion
Against those who argue that international relations are only determined
by power, I have argued that processes of decision making that rely on the
authority and due process of law can also have influence.
Against those who argue that the only legitimate sovereign is the national
state, I have argued that crimes against humanity have been recognised as
the business of all human beings and therefore global institutions may develop
that have jurisdiction within all states to prosecute such crimes.
Against those who argue that individual criminal responsibility for these
crimes is just a legal fiction, I have argued that those who perpetrate crimes
against humanity have had alternatives and that, while their alternatives may
have been severely constrained, they still made free choices.
Against those who argue that cosmopolitan law is Utopian, I have shown
that in the ICTY and the ICTR, as well as in national courts, it is coming into
being.
Against those who argue that the practical difficulties of organising fair
trials for such crimes are insurmountable, I have presented evidence that fair
trials are indeed being held.
Against those who argue that cosmopolitanism cannot hope to pull people
away from their own sacred myths of nationhood, I have shown one
mechanism by which a cosmopolitan social memory is being forged.
In the introduction to this book I asked whether there were sparks and
flashes of cosmopolitanism in the darkness of totalitarianism; if they exist,
what do they illuminate, and what is their significance? I have argued that in
cosmopolitan criminal law, we can see coming into being one new way of
challenging totalitarian horror. Rather than a smooth and institutional process
of civilisation, I have argued that it is more appropriate to understand these
trials as shards of light in the darkness. We do not know how things will
develop; whether processes such as the Nuremberg tribunals, the ICTY and
the International Criminal Tribunal for Rwanda will appear to history as the
beginning of the coming of age of a new form of human regulation, or as
compromised, isolated sparks in the darkness. But even if they do remain
nothing more than historically isolated examples of flawed cosmopolitanism,
their existence will still have been remarkable and profound, even if the sparks
were unable to ignite a more enduring flame.
159
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167
Index
Abortion 51
Academics 131, 136
Admissibility of evidence xviiixix,
105, 129, 146
Adorno, Theodor 104
Afghanistan 154
Agency/structure36
Ahmici village 8283
AIDS research funding 51
Akashi, Yasushi 60, 61, 62
Albania 65
Albanians 64
Albright, Madeleine 65
Alic, Fikret 138n20
Allied powers 39, 145
Allot, Phil 3
Alterity 26
American native peoples, North
and South 4950
American Revolution 3
Anderson, Benedict 139
Antisemitism 30, 32, 137
Anti-war movement 4849
Aquinas, Saint Thomas 7
Arendt, Hannah
banality of evil 34, 98
Douglas on 148
Eichmann 33, 95, 148
final solution xxiv
genocide 44
Jews/citizenship 11
mass man 25, 26, 33
nation state 10
Nuremberg tribunals 47
The Origins of Totalitarianism 27
refugees 151
Rights of Man 3, 152
self-determination 12
totalitarianism xv, 27, 28
Armenians 43, 49, 50
Arusha tribunal xi, xix, 17, 22
Asia, South East xi
Atrocities 32, 36, 141, 147, 157
Augustine, Saint 7
Auschwitz 29, 38, 54, 131, 13233
Austin, John 19
Authority 28, 37, 38
Autonomy
ICTY 7071, 76
Kosovo 65
Baglay, Alexander 11920, 127
Baglay, Ivan 11819
Banality of evil 34, 54, 98
Banja Luka 69, 89
Barbie, Klaus 33n30, 35, 95, 149n53
Barlas, Mir 108, 11112
Barthes, Roland 140
Bass, Gary 44n28, 76
Bassiouni, Cherif 71, 73
Bauman, Zygmunt
bureaucracy 98
crimes against humanity 35n34
Eichmann 33, 34
final solution 26
genocide 25, 52, 69
genocide studies 55
Heidegger 47
industrialisation of death 2829
mass killing 98
Modernity and the Holocaust 24
Nazi doctors 31n20
rational choice 2426, 2930
responsibility xvi, 28
shooting of victims 32n23
totalitarianism 35
Beck, Ulrich xii
Belgium xi, 98
Belorus 101, 142, 143
Belorussian witnesses 11223, 127
Belzec camp 29
Ben Gurion, David 148
Berk-Seligson, Susan 102n23
Berlin Protocol 39n4
Bernays, Murray C 4041
Bey, Kemal 4344n28
Bey, Tevfik 4344n28
Biddle, Judge 42, 135
Bihac 57, 63
Bin Laden, Osama 149
170

Birkenau II 132
Blair, Tony 75
Blaskic, Tihomir xvii, xx
conviction 158
cross-examination strategy 8182
humanitarian law 81
ICTY 7984
sentenced 7980
UNPROFOR 8384
Blustein, Ben-Zion
accuracy of evidence 10810, 11112,
12829
characteristics 10809
Holocaust survivor xviiixix, xxiii,
97, 99, 103, 11011, 129
Israeli myth 142
testimony 10312, 147
as witness 106
Yom Kippur killings 10607
Boban, Mate 81, 82, 83
Bohemia 8
Bohman, James xii
Bombing
Allied powers 145
dehumanisation 5455
genocide 5354
NATO 64
Borders 10
Borisy hamlet 115, 127, 143
Bormann, Martin 40
Bosnia xvii
complicity 84
Croatisation 92
Croats 82
ethnic cleansing xvii, xxiv, 57
genocide 157
Muslims 50, 57, 143
perpetrators 32
power politics 64
Serbs 57, 7172
Srebrenica 5758
torture 72
UN 6263, 75
UN Security Council 81
UNPROFOR 72
USA 157
Bosnia-Herzegovina, Republic of 81, 84
Bosnian Territorial Defence (TO) 81
Bratunac 6162
Brazilian natives 50
Brcko 68
Brinkman, Brigadier General 63
Britain
fair play 143
identity 140
national myth 142
British National Party 131n3
Broad, Pery 133
Browning, Christopher
Irving trial 13435, 136, 143
Ordinary Men 3031
Sawoniuk trial 99, 10405
Brutality xviii, 29, 6670
See also Torture
Buisman, Caroline 93
Bullock, Alan 27n12
Bureaucracy
Bauman 98
distancing 53
final solution 25, 27
Germany 2526
Holocaust 26, 27, 29
moral response 25
Nazis 26, 27
rational choice 3031
Weber 26, 27
Burgess, Bob xxiii
Bush, George 22, 75
Busovaca 80
Bystanders xvi
See also Complicity
Calamay, Edmund 8n26
Calley, William L 48
Cambodia xi
Canada
soldiers 59
Zundel case 13334, 145
Canadian soldiers 59
Capitalism 21
Cassese, Antonio 71, 76
Catholic Church 8, 11415
Chalk, Frank 52
Channel 4 138n20
Charles I38
Charny, Israel W 52
Chechnya 156
Chelmno 29, 147
Chemiks 6263
Chilean protesters xi
China 156
Cigar, Norman 1401
Citizenship
cosmopolitanism 14
foreigners xii
human rights 15152
Jews 11
nation state 3
Index
nations 13940
Nazis 11
Rights of Man 3
See also Non-citizens
Civilian-killings 63, 6465, 82
Clarendon Club speech 136
Clegg, William
international conflict 71
Sawoniuk 84, 99, 102, 10709
Tadic 71
Yakimuk 11518
Clinton, Bill 75
Co-existence 81, 140
Cohen, Robin xii
Cold War
aftermath 101
cosmopolitanism 15, 48
end of history 151
Genocide Convention 14
international law 5
international relations xiii
Collective action 3132
Colonialism 154
Comfort women xi
Commission of experts, UN Security
Council 7273
Commission on Human Rights, UN 72
Community humanity 154
imagined 13940
international 57
Complicity 26, 36, 84
Concentration camps 2728n13, 2829,
6670
Conception 25
Conflict
armed 21
international 71, 83, 91
see also War
Conformity 26, 31, 36, 37
Conspiracy charge 4042
See also Jewish conspiracy myth
Convention for the Definition of
Aggression 4243
Co-operation, international 10
Cosmopolitan law xiixiii, xiv, xvii, 5,
15859
Allies 39
citizens/foreigners xii
emergent properties xv, 141, 142, 153
ethnic cleansing 79
Held 15
humanitarian intervention 154
ICTY 1, 93
international law xvxvi
Israeli state 23
legitimation 15253
mass killing 38
modernity 22
narratives 130, 139
national law 95, 128, 14950, 158
Nuremberg tribunals 22, 38
power regimes 7
realpolitik 15556
supra-national court 14950
totalitarianism xiixiii, xiv, 147
universality 11, 39, 155
utopian 159
Cosmopolitanism xv, 1314, 21n61, 79
citizenship 14
Cold War 15, 48
globalisation 21
Held 1516
Holocaust 94
ICTY 77
Kaldor 21
politics 154
self-interest 64
social life 153
social theory xii
totalitarianism 159
utopian 6, 16, 47
Counter-memory 14647
Courts
academics 136
criminal xxi, 98
judgments 94
legal discourse 146
narratives 139, 147
Crimes 1617, 4647
Crimes against humanity 93
Barbie 33n30
Bauman 35n34
Berlin Protocol 39n4
Bosnian Serbs 57
as criminal offence 93
dehumanisation 44
evidence xix
The Hague trials xi
Holocaust 2
international humanitarian law 152
national social memory 143
Nazis 44
Nuremberg tribunals 23, 38, 49n49
precedent 40
rape 72n57
responsibility xiv, xvi
Turkey 43
USA 96n7
171
172

war 45
war crimes 43
Croat Muslim Federation 63
Croatia
Bosnia-Herzegovina 81
HV 80n1
HVO 84
independence 7172
JNA 71
myth 14041
Ustasa atrocities 141
Croatian Defence Council 81
Croatisation 92
Croats 10, 6364, 7172, 8182
Customary international law xiv, 18,
43, 91
Czechs 10
Dayton agreement 64, 92
Declaration on Aggressive War,
League of Nations 42
Deconstruction of legal discourse 146
Defamation trial:
See Irving, David
Dehumanisation 25, 44, 53, 5455
Deichmann, Thomas 138n20
Demilitarised zone 59
Demjanjuk, John 35, 14849
Denial
ethnic cleansing 138n20
See also Holocaust denial
Deportation, Serbs 61
Destexhe, Alain 49, 50, 51
distancing 53
Doctors, Nazi 31n20, 138
Doenitz, Karl 42
Domachevo Catholics 11415
ethnic divisions 97
Jews 97, 100, 106
Mass graves 106
Old Bailey court 101
Donnedieu de Vabres, Renaud 4142
Douglas, Lawrence 96n7, 148
Douzinas, Costas 150, 152, 153, 155
Dragon, Shlomo 133
Drenica 64
Dresden 145
Drina corps 61, 144
Dunkirk 140
Durkheim, Emile 26
Dutch soldiers 59, 6061, 62
Dutch States General 8
Duty/right xiv, 7
Eichmann, Adolf ambition 28

Arendt 33, 95, 148
Bauman 33, 34
confession 133
rational choice 3335
trial 47, 9495
Einsatzgruppen 28, 29, 55, 99, 10001
Elliott, Robert 48
Emergent properties
cosmopolitan law xv, 141, 142, 153
institutions 7071, 156
social structures 7071
Empiricism xix, xx, 55
Estate 8
Ethics 7, 2021, 25, 34, 92
Ethnic cleansing
Armenians in Turkey 50
Bosnia xvii, xxiv, 57
cosmopolitan law 79
Croats 6364, 81
denial 138n20
ICTY 141
Kosovo xvii, 57, 6566, 155
Milosevic xviii
Muslims 72, 81
safe areas 6364
Serbs 72
sovereignty 4
Srebrenica 63, 92
UN 59, 62
Ethnic minorities 10, 97
Eugenics 31n20
Evans, Richard 133n8, 13436
Evidence
admissibility xviiixix, 105, 129, 146
Blustein 10810, 11112, 12829
conflicting 87, 88
crimes against humanity xix
cross-contamination 128
eye witness 13233
identification 90
prejudicial 129
rules of 158
testimony 10304, 106, 107
See also Hearsay;Witnesses
Evil 25, 34, 54, 98
Ex post facto argument 3940
Exclusion 15152
Execution technology 25
Executive power 71
Extermination of Jews 2829
Extradition 76, 96
Eye-witness evidence 13233
Index
Eye-witness testimony xviiixix, 10506
Fair play, British 143
Falklands War 140
Fein, Helen 51, 5354, 55
Final solution
Arendt xxiv
Bauman 26
bureaucracy 25, 27
Domachevo 100, 114
Eichmann 34, 148
Evans 13536
Fine, Robert xii, 6, 4445, 46, 47
Finkelstein, Norman 55
Finkielkraut, Alain 33n30, 35, 95
First World War 10
Flinders, Arthur 131n3
FLN prisoners 38n2
Forced Labour, Abolition of 17n48
Foreigners xii
See also Non-citizens
Forsythe, David 70
Foster, Kevin 140
Foucault, Michel 46, 146
France
FLN prisoners 38n2
French resistance 95
French Revolution 3, 46
Thirty Years War 8
Frank, Hans 2728, 34
Freeman, Michael 5152
Frey, Gerhard 137
Fuller, Lon 46n36
Funke, Jaho 134, 137
Gaddafi, Muammar 158nl5
Garden culture 25
Gas chambers 13234
Gellner, Ernest 139
Geneva Convention 4n7, 17n48, 43n23
international conflict 83
Tadic 91
treatment of prisoners 43
Universal Declaration of Human
Rights 5n10
Geneva Protocol 43n23
Geneva Regulations on the Treatment
of Prisoners of War 43n23
Gnocidaire xvixvii, xviii, 55
Genocide xivxv, 4956, 93
Arendt 44
banality of evil 54
Bauman 25, 52, 69
bombing 5354
Bosnia 157
Cambodia xi
Destexhe 49, 50, 51
ICTY 141
intentionality 50, 56
Katz 4950
Kuper 5051, 54
lawyers/sociologists 5253
modernity 30
Nazis 12, 14, 49
Nuremberg trials xvixvii
responsibility 4445
Rwanda xi, xiv, 32n23, 62
sovereignty 4
Srebrenica 144
Turkey 4344n28, 49, 50
Vietnam War 489
War 5n9
See also Holocaust
Genocide Convention xvii, 17n48,
21, 38
Cold War 14
cosmopolitan law 49
Kuper 5051
USA 15
Genocide studies xvii, 38, 49, 5153,
5556
Geras, Norman 55
German Peoples Union 137
Germany
bureaucracy 2526
invasion of Russia 97
Jews 143
national myth 142
neo-Nazis 134, 137
post-Second World War 14647
responsibility 100
See also Nazis
Gertner, Bob 131n3
Giddens, Anthony 10
Globalisation xii, 21
Goebbels, Josef 40
Goldhagen, Daniel 32, 100
Goldstone, Richard 76, 84
Goodrich, Peter 146
Gorazde 57, 63
Grass, Gnter 14647
Gray, Charles 132
Griffiths, Detective Sergeant 12122
Grozdanic, Elvir 87
The Guardian 138n20
Guilt 31, 4112, 100, 142
Gulf War 58
Gush Shalom 2
173
174

Gutman, Roy 73
Gtt, Arthur 31n20
Gypsies 49, 50
Habermas, Jrgen xii, 38
The Hague
cosmopolitan law 22
crimes against humanity trials xi
ethical imperialism 92
ICTY xvii, 76
public gallery xxii
Rules of Land Warfare 43
UN institutions 77
Hague Conventions 43n23
Hague Tribunal xixxx, 17, 70
Hailsham, Lord 145
Hamburg Police Battalion 101 3132
Hammer, Armand 149n49
Harambasic, Fikret 86
Hausner, Gideon 148
Healing, killing paradox 53, 55
Hearsay 91, 121
Hegel, Georg 155, 156
Heidegger, Martin 4647
Held, David xii, 5, 6, 1516
Higgins, Rosalyn 1920
Himmler, Heinrich 40
Hirohito, Emperor 47n41
Hiroshima 50, 51, 54
Historiography 132, 13436, 143
Hitler, Adolf 25, 27n12, 40, 136
Hitlerism 41
Hitlers War (Irving) 13536
Holocaust xxiiixxiv, 1, 2, 94
bureaucracy 26, 27, 29
cosmopolitanism 94
genocide studies 51
industrialisation of death 2829
uniqueness 52
victims 13435
See also Shoah
Holocaust denial
Irving xviii, 94, 130, 132, 137,
138, 14546, 147
Zundel 13334, 145, 149n53
Holocaust memoirs xix, 104, 129
Holocaust survivors xxiii, 132
See also Blustein, Ben-Zion
Holy Roman Empire 8
Hss, Rudolf 133
Hostage-taking 63, 80
Hukanovic, Rezak 6667, 86
Human rights 11, 151
abuses 38, 15657
atrocities 157
citizenship 15152
NATO 7576
natural law 151
non-citizens 153
Nuremberg trials 3
political will 64
sovereignty xv, 3, 4, 151, 15253
Human rights law 5, 6, 130, 151
Human Rights Watch 65n27
Human shields 80, 82
Humane law 5
Humanism 4647
Humanitarian intervention 1213, 154
Humanitarian law 5n12
armed conflict 4
Blaskic 81
human rights law 5, 6
Nuremberg tribunals 4, 1920
violations 73
See also International humanitarian
law
Humanity/community 154
Humanity concept 44, 46, 151n6
Hurd, Douglas 62, 9596
Hussein, Saddam 155
Hutus 49, 143
HV (Army of the Republic of
Croatia) 80n1, 84
HVO (Army of Bosnian Croats) 80n1,
81, 8283, 84
Ibo 50
Icic, Hase 87
Idel, Shaya 107
Identification 90, 121, 123, 149
Identity 140, 142, 148, 153
Imperialism xiii, 92
Independent Television News
138n20
Individuals
accountability 155
international law 1
responsibility xvi, 16, 2324, 26, 3537
scapegoating 158
society 35
Institutions
emergent properties 7071, 156
legal system 14344
social 156
supra-national xiii, 152
Instrumental rationality xvi, 24,
3031, 36
Index
Intentionality 50, 56
International community 57
International Court of Justice 15
Article 38(1) of Statute 18
International Criminal Court 6, 7, 19
precedents 20
treaty xiii, 156
US opposition 17
International Criminal Tribunal for
Rwanda (ICTR) 20
International Criminal Tribunal
for the former Yugoslavia
(ICTY) xvii, xx, xxiixxiii, 156
autonomy 7071, 76
Blaskic case 7984
cosmopolitan law 1, 93
cosmopolitan narrative 130, 144
cosmopolitanism 77
criticisms 92
ethnic cleansing 141
genocide 141
The Hague xvii, 76
judges 80
justice xvii, 57
Kristic 61
precedents 20
prosecutors 71, 80
public gallery 77
rape charges 43n25
successes 9293
Tadic case 8491
tu quoque argument 46
UN Charter 7475
UN security staff 7678
International humanitarian law xiv, 17,
91, 130, 152
International law xii
Cold War 5
cosmopolitan law xvxvi
customary xiv, 18, 43, 91
formalism/dynamism 19, 20
individuals 1
legal positivism 910
Salisbury 17
Sawoniuk 96
social life 17
sovereignty 1
state 1112, 1819
International Military Tribunal for
the Far East 47n41
International relations xiii
International relations theory 13
Interpreters 102, 107
Intimidation of witnesses 102
Iraq 12, 58, 154

Irvin, Jeremy 138n20
Irving, David xx, xxiii, 130, 137, 146
Clarendon Club speech 136
historiography xi, 130, 132,
13436, 143
Holocaust 147
Holocaust denial xviii, 130, 132, 137,
138, 14546
judgment 132
narratives 14445
neo-Nazi links xx, 134, 137
racism 13637
revisionism xix, 94, 130, 131, 137
spectators at trial xi, xxii, 131
Tampa speech 137
textual manipulation 135, 136
van Pelt 134
Israeli colonel 2
Israeli state 1, 23, 22, 142, 148
Ivan the Terrible 14849
Izetbegovic, Alija 57
Jackson, Robert H 39, 4041
Jacupovic, Nedzad 68
Jajce 81
Jankowski, Stanislaw 133
Janvier, Bernard 60, 62
Japan
atrocities 147
comfort women xi
post-Second World War 14647
soldiers xi
Tokyo tribunal xiv, 16, 1920, 47n41
Jaskici 8889, 91
Jaspers, Karl 34, 4445, 47, 98
Jewish conspiracy myth 42, 13132, 133
Jews 10, 135, 136
citizenship 11
Domachevo 97, 100, 106
extermination 2829
genocide 49
Germany 143
Josefow 3132
rationality 30
See also Holocaust; Israeli state
JNA (Yugoslav National Army) 59, 64,
71, 81, 91
Josefow 3132
Joyner, CC 72n57
judges 80, 158
Judgments 94, 144
Judicial power 71
175
176

Julius, Anthony 131, 132, 138
Justice xiii, xvii, 7, 57, 75
Kaldor, Mary xii, 56, 21
Kalejs, Konrad 96
Kalshoven, Frits 7273
Kant, Immanuel xii, 15, 21, 34
Kaonik 82
Karadzic, Radovan 59, 70, 73, 76, 92
Karremans, Lieutenant Colonel 60, 61
Katyn forest massacre 48
Katz, Steven 4950
Kehoe, prosecutor 80, 81
Kellogg-Briand Pact 4243
Kereterm camp 68, 69, 84
KGB 101
Kirchheimer, Otto 38, 4546, 71n52,
105n33, 156
Kiseljak 8081
Kissinger, Henry 155
Kladanj 62
Knin Boys 6970
Kobelka 122
Kopf, David 52, 53, 54
Kordic, Dario 83
Koskenniemi, Martti 18, 20
Kosovars 12, 65, 66, 154
Kosovo 65, 66
disarming forces 157
ethnic cleansing xvii, 57, 6566, 155
Milosevic 65, 141, 155
Muslims 50
NATO 17, 57, 65, 66
peace/justice 6466
Serbs 64
USA 154
Kosovo Liberation Army (KLA) 64
Kovac, Radomir 72n57
Kozarac 85, 86, 89, 91
Krajina 6364, 92
Kristic, Radislav
ICTY 61
judgment 144
Srebrenica 5556, 144, 147
Krupp, Gustav 40
Kunarac, Dragoljub 72n57
Kuper, Leo 5, 5051, 52, 54
Kurds 12, 58
Labour camps 29
Lammers, Hans Heinrich 135
Lanzmann, Claude 98
Shoah 25, 104, 147
Lasva Valley 80, 81, 82
Lauterpacht, Hersh 4
Lawyers 5253
Leader principle 28, 34, 36
League of Nations 10, 19
Declaration on Aggressive War 42
Legal discourse 146
Legal positivism 910
Legal processes 142, 147
Legal system
institutions 14344
myths of nationhood 13839
Legislative power 71
Lemkin, Raphal 50, 53
Lend-lease, Second World War 71
Lenin, VI 13
Leuchter, Fred 13334
Levi, Primo 103, 147
Libya 158
Lipstadt, Deborah xx, 94, 130, 145
Denying the Holocaust 131
Living Marxism 138n20
Lockerbie trial 158
Longerich, Peter 134, 138
Louis XVI 38
Loyalty 53
Lubatov, Rabbi of 106
Lublin camp 115
Luka camp 68
Lutz-Bachmann, Matthius xii
Lyotard, Jean-Franois 104
MacArthur, Douglas 47n41
McDonald, Trevor 136
Macedonia 65
Madagascar plan 13435
Majdanek camp 29
Major, John 75
Manjaca camp 68
Mao Zedong 50
Marcuse, Herbert 71n52
Markusen, Eric 52, 53, 54
Marshall, Penny 138n20
Mass graves 62, 106
Mass killing
Bauman 98
cosmopolitan law 38
genocide studies 51
Hamburg 3132
social factors 32
states 53
structure/agency 36
Mass man 25, 26, 33
May, Judge xviii
Media coverage 90, 138n20, 13940, 158
Index
Melaniuk 127
Memoir 6667
See also Holocaust memoirs
Memory collective xix, 142, 148
cosmopolitan 142
counter-memory 14647
Nuremberg tribunals 141n29
social xix, 140, 143
Wagenaar 149
Meron, Theodor 73
Millart, Kazic 99
Milosevic, Slobodan
arrest 92
Dayton 64
ethnic cleansing xviii
extradition 76
fall of regime 75
indictment 17, 76, 156
international disunity 65n27
Kosovo 65, 141, 155
NATO 156
trial xi, xvii, xviii, 7, 77
Tudjman 8384
UN 73
Mirsad, camp inmate 6869
Mladic, Ratko
Dutch soldiers 59
indictment 64, 76
NATO 70
Srebrenica 61, 92
UNPROFOR 63
Modernity
cosmopolitan law 22
dehumanisation 25
genocide 30
instrumental rationality xvi, 24
moral choice xvi
sovereignty 7, 20
Moral choice xvi, 24, 25, 37, 153
Morillon, General 58
Mosques 82
Murder 101, 143
Muslimovic, Senad 86, 87
Muslims
Bosnia 50, 57, 143
coexistence 81
disarming 59, 82
ethnic cleansing 72, 81
executed 62, 72
Kosovo 50
Omarska 87
rape of 72, 82
refugees 61
Serbs 57, 143
UN relief 59
witnesses 88
My Lai 32, 48
Myth
Croatia 14041
Jewish conspiracy 13132, 133
narrative 140, 150
nationalism 130, 138, 142
nationhood xix, 3839, 159
politics 141
Serbia 14041
Nadioci 82
Nagasaki 51
Narratives
cosmopolitan 130, 144
courts of law 139, 147
historiography 143
Irving case 14445
judgment 144
myth 140, 150
nationhood 140
Sawoniuk case 1423
testimony 143
witnesses xviiixix
Yugoslavia (former) 14041
Nation/identity 140, 142, 148
Nation state xv, 3, 10, 139, 153
National Alliance 137
National interest xii
National law/cosmopolitan law 95,
128, 14950, 158
National sovereignty xiv, 4, 7
Nationalism 138
competing 139
ethnic 10
mythology 130, 138, 140
racism 145
self-defence 15758
Serbian 14041
Sharon regime 12
Nationhood xix, 1380, 159
NATO (North Atlantic Treaty
Organisation)
human rights 7576
intervention 154
Karadzic 70
Kosovo 17, 57, 65, 66
Milosevic 156
Mladic 70
Serbs 60, 64, 65
Srebrenica 6061, 155
177
178

Natural law 151
Nazi sympathisers xxii, xxiii, 131
Nazis
bureaucracy 26, 27
citizenship 11
confessions 133
cosmopolitanism 13
crimes against humanity 44
doctors 31n20, 138
genocide 12, 14, 49
leader principle 28
Nuremberg tribunals xvi, 40, 4142,
94, 141, 145
Poland 14243
post-war trials 39
public drama 115
RSHA 2728n13
Neff, Stephen 78
Neo-Kantiansim 34
Neo-Nazis 134, 137
Netherlands 62, 158
See also Dutch soldiers
Neumann, Franz 27, 46n36, 71n52
New Scotland Yard, War Crimes
Unit 121
Nigeria 50
NKVD (Russian secret police) 10910,
111
Non-citizens 14, 15152, 153
Norway 42
Nuclear weapons 55
Nuremberg tribunals xvi, 21, 4043
Allied powers 39
Arendt 47
charges 4043
crimes against humanity 23, 38,
49n49
genocide xvixvii
Holocaust 2
human rights 3
humanitarian law 4, 1920
individual responsibility 16, 23
memory 141n29
Nazis xvi, 40, 4142, 94, 145
precedents xiv, 71
realist critique 45, 46
retrospective justice 75
Second World War xiii
tu quoque argument 75
Nutting, Sir John 100
Baglay brothers 11820
performing interview 122
Pushkina 11215
Sawoniuk 99, 10001, 12327, 129

Obedience 30, 31, 32
Observation xxiixxiii
e Kenzabur 14647
Old Bailey xxixxii, 98, 143
Omarska brutality 6670
living conditions 6667
media coverage 138n20
Muslims 87
rape 70
survivors testimony 6870
torture 6670, 84
sexual 70, 86
UNPROFOR 68
Opacic, Dragan 9091, 93
Opinio juris 18
Opstina Prijedor 84
Orlovci checkpoint 86
Ottoman influence 140, 141
Paris Pact 42
Partisanship 127, 143
Patriotism 137, 14445
Paxman, Jeremy 14445
Peace xvii, 57
Peacekeeping 63
Pecista 61
Peer pressure 31, 32, 37
Penguin Books 131
Perpetrators
banality of evil 34
collective action 3132
hardening 3132, 36
moral choice xvi, 37
responsibility 23, 159
victims 32n23, 5354, 69
Piccigallo, PR 47n41
Pictet, Jean 5
Pijavija 72
Pinochet, Augusto xi, xiv, 7, 17, 149n53,
155
Plavsic, Biljana 92
Poland 10, 30, 48, 134, 1423
Police Battalion 101 3132
Politics cosmopolitanism 154
human rights 64
Kosovo 65
myth 141
power xiv, 13, 64
witnesses xviii, 158
Pomorski, Stanislaw 40, 41
Potocari 60
Potts, Judge 112
Index
Power
abuses 15657
authority 28, 38
cosmopolitan law 7
ethics 2021
executive/legislators/judiciary 71
politics xiv, 13, 64
Pragmatism 151
Precedents xiv, 20, 40, 71
Press galleries of courts xxixxii
Prijedor 6670, 86
Prikepolje 72
Proboj 72
Property ownership 7
Prosecutors, ICTY 71, 80
Public galleries of courts xxixxii, 77
Punishment, collective 2
Pushkina, Gallina 11215
Puskar, Abdullah 67
Putin, V 155
R, Sakib 68
Racak village 6465
Racism historiography 132
Irving 13637
nationalism 145
patriotism 137
self-interest 56
USA 51
Rambouillet talks 65
Rampton, Richard 131, 134
Rape comfort women xi
ICTY 43n25
Muslim women 72, 82
Omarska 70
Serbs 61
Rapporteur, UN 72
Rational choice 2426, 2931, 3335, 53
Rationality
evil 25
Hegel 155, 156
instrumental xvi, 24, 3031, 36
Jews 30
value 36
Realpolitik 15556, 158
Reason:
See Rationality
Red Cross 68
Refugees 57, 6061, 65, 151
Regicide 38
Regime change 3839
Renssen, Raviv van 59
Renunciation of War as an Instrument of
National Policy 42
Report of the War Crimes Inquiry 96n5, n6,

05n32
Representation 12
Republica Srpska 62
Research methodology xxiii
Responsibility Bauman xvi, 28
crimes against humanity xiv, xvi
genocide 4445
Germany 100
individuals xvi, 16, 2324, 26, 3537
legal 45
metaphysical 45
military hierarchy 7980
moral 4445
perpetrators 23, 159
political 44
Retrospective justice 75
Revisionism xix, 130, 131, 137
Ribbentrop, Joachim von 27n12
Right 7
Rights of Man 3, 11, 152, 153
Robertson, Geoffrey 70, 93, 149n49
Rose, Michael 63
Rosenberg, Alan 52
Roso, Anto 81
Royal Courts of Justice xi, xxixxii
RSHA, Nazis 2728n13
Rules of Land Warfare 43
Rummel, Rudolph 54
Russell, Bertrand War Crimes in
Vietnam 48
Russia Belorus 101
Chechnya 156
genocide definitions 50
German invasion 97
Katyn forest massacre 48
national myth 13, 142
Police Battalion 101 3132
Russian Orthodox Church 115
Rwanda
ad hoc tribunal xiii, 13, 19, 21, 55,
7374, 98
gnocidaires 55
genocide xi, xiv, 32n23, 62
Hutus 49, 143
Tutsis xiv, 49, 143
UN 75
See also ICTR
Safe areas 5859, 6364
Safe havens 58
St Petersburg Declaration 43n23
Salihovic, Fahrudin 60
Salisbury, Lord 17, 18, 20
Sanctions 142
179
180

Sarajevo 63
Sartre, Jean-Paul 48
Sawoniuk, Andrei
brother 121, 12425, 128
characteristics 9697, 99
charges of murder xi, 12627
collaborator 143
cross-examination of 12327, 129
evidence 146
Free Polish Army 105, 125
gnocidaire xviii
German archival document 105
international law 96
jurors 122
KGB 101
life in Britain 9798
narratives 1423
Nazi 105, 125
Nutting 99, 10001, 12327, 129
Old Bailey 98
police force 99
prosecution 102
trial xx, xxixxii, 77, 84, 94, 95
Scapegoating of individuals 158
Schaub, Julius 133
Schlegelberger, Franz 135
Schlegelberger memorandum 13536
Schneider, Rachel 99
Scottish law 158
Scruton, Roger 14
SDS (Bosnian Serb political party) 86,
8788
Second World War xi
aftermath 5, 14, 20, 39, 14647, 151
crimes 1617
lend-lease 71
Nuremberg trials xiii
traitors 145
Self-defence 15758
Self-determination 2, 34, 11, 12, 139
Self-interest 2425, 34, 56, 64, 66
September 11, 2001
See Terrorist attacks
Serafinowicz, Szymon 96
Serbia 14041, 154
Serbian Academy of Arts and
Sciences 141
Serbs
Bosnia 57, 7172
Croats 10, 7172
deportation operation 61
ethnic cleansing 72
hostage-taking 63
JNA 59
Kosovo 64
Muslims 57, 143
NATO 60, 64, 65
rape 61
Srebrenica 5961
Shahabuddeen, Judge 71
Sharon, Ariel 12, 155
Shlemko, death of 12021
Shoah xxiv, 51, 97, 98, 104
Shoah (Lanzmann) 25, 104, 147
Silverman, Evelyn 52
Simpson, Varnado 32
Sivac, Sefik 87
Sivci 88, 89, 91
Slavery, sexual 72n57
Slovaks 10
Slovenia 7172
Smith, Ron 131n3
Sobibor 29
Social life 17, 26, 153, 156
Social structures 7071, 79
Social theory xii
Society/individuals 35
Sociologists 5253
Somalia 6
Sovereignty xii, 5
borders 10
ethnic cleansing 4
genocide 4
Held 16
human rights xv, 3, 4, 151, 15253
international law 1
inter-state relationships 39
Lenin 13
liberal international 5
modernity 7, 20
national xiv
state xv, 1, 3, 7, 89, 20
territorial 8
USA 15
Soviet Union:
See USSR
Spielberg, Steven 104
Srebnik, Simon 147
Srebrenica
Bosniak forces 5758
Canadian soldiers 59
Dutch base 61
Dutch soldiers 59
genocide 144
Kristic judgment 147
Index
Mass graves 62
Mladic 61, 92
NATO 6061, 155
Refugees 6061
safe area designation 58
Serbs 5758, 5961
UN 57, 157
UNHCR report 58
UNPROFOR 58, 59, 61
US State Department 6
Srpska, Republic of 88, 8990, 91, 92
Stalin, Joseph 25, 46, 50, 139
Stalinism 13, 154
State
estate 8
international law 1112, 1819
mass killing 53
sovereignty xv, 1, 3, 89, 20
See also Nation state
State practice 18
Statute of the International
Tribunal 74, 91
Article5 91
Article 210 75
Statute of the International Military
Tribunal Article 7 23
Article 8 23
Stepaniuk, Ivan 12021
Stewart, Bob 83
Stoics 15
Stone, Dan 104
Structure/agency 36
Successors, regime change 3839
Sudan 75
Supra-national institutions xiii,
14950, 153
Survivor testimony 51, 6870, 104
Sweden 8
Tachibana, Reiko 146
Tadic, Dusko
appeal 71
arrest 76
background 86
conviction 158
ICTY 8491
international conflict 71, 91
judgment 8586
Omarska 8487
plea 8485
SDS 86
trial xvii, xx, 70, 79, 8493, 14142
witnesses 8687
Tadic, Mira 85
Tauber, Henryk 133
Taumon 2
Taylor, Kate 131n3
Taylor, Maxwell 5051
Technology 25
Territoriality 8, 10, 11
Terrorist attacks xiii, 22, 158
Testimony
academics 131
Blustein 10312, 147
evidence 10304, 106, 107
eye-witness xviiixix, 10506
narratives 143
survivors 51, 6870, 104
witnesses 10405
Thirty Years War 8
Tibet 156
The Times 63, 115
TO (Bosnian Territorial Defence) 81
Tobacco sales 51
Tokyo tribunal xiv, 16, 1920, 47n41
Torture
Bosnia 72
complicity 36
Omarska 6670, 84
for recreation 6970
sexual 70, 86
Torture, Convention against 17n48
Totalitarianism xii, xv, 153
Arendt xv, 27, 28
Bauman 35
cosmopolitan law xiixiii, xiv, 147
cosmopolitanism 159
instrumental rationality 36
Neumann 27
social life 156
Traitors 145
Translation problems 102n23
See also Interpreters
Trapp, Wilhelm 31
Travnik 72
Treblinka 29, 14849
Trials xxi, 75, 79, 105n33
Tribunals, ad hoc xiv, 13, 7374
Yugoslavia and Rwanda xiii, 13, 19, 21,
55, 7374, 98
Trnopolje camp 84, 87, 138n20
Truman, Harry S 15
Truth 142, 146, 147
Tu quoque argument 4546, 75, 102
Tudjman, Franjo 75, 8384, 92, 158
Turkey 4344n28, 49, 50
Tutsis xiv, 49, 143
Tvrtko 82
181
182
Ukranians 10
United Nations
Bosnia 6263, 75
Commission on Human Rights 72
Convention on the Prevention
and Punishment of the
Crime of Genocide 4n7
General Assembly 16
The Hague institutions 77
human rights 3
ICTY xvii, 7678
Karadzic 73
Milosevic 73
Muslims 59
peacekeeping 63
Rapporteur 72
reforms 16
Rights Conventions 16
Rwanda 75
security staff 7678
Srebrenica 57, 157
United Nations Charter 7475
Article 2(4) 4n6, 11
Article 2(7) 4n6, 12
Article 32 12
Article 48(1) 73
United Nations High Commission
for Refugees (UNHCR) 58, 63
United Nations Protection Force
(UNPROFOR)
Blaskic 83
Bosnia 72
Mladic 63
Omarska prisoners 68
Rose 63
Srebrenica 58, 59, 61
United Nations Security Council ad hoc
tribunals 13
Article 24(1) 74
Bosnia 81
commission of experts 7273
Hague Tribunal 70
International Tribunals 7374
Resolutions
721 72
808 73
827 73
955 73
rules 6
sovereignty 12
veto powers xiv, 16, 156
war crimes 72
United States of America
American Revolution 3
Bosnia 157
genocide 4849
International Criminal Court 17
interventions 154
Justice Department xi(n1), 149
Kosovo 154
racism 51
Rwanda xiv
Secretary of State 65
sovereignty 15
State Department 6
terrorist attacks xiii, 22, 158
USSR 48
Vietnam War 156
Universal Declaration of Human
Rights 4, 5n10
Universality
cosmopolitan law 11, 39, 155
moral choice 153
USSR 48, 142
Utopian ideals 6, 16, 47, 159
Valenta, Anto 83
Value judgments 56
Value rationality 36
Van Pelt, Robert Jan 13233, 134, 136
Vance-Owen plan 82
Vashem, Yad 111
Venezuela 50
Versailles, Treaty of
Article 227 43
Article 228 43
Vertovec, Steven xii
Victims
Holocaust 13435
perpetrators 32n23, 5354, 69
shooting of 32n23
Victors justice xiii
Vietnam War 32, 4849, 154, 156
Vitez 80, 82
Vukovic, Zoran 72n57
Vulliamy, Ed 68, 138n20
Wagenaar, Willem 149
Wannsee conference 135
War 56, 7, 10
War crimes
conventions against 43n23
crimes against humanity 45, 43
deportations 96
UN Security Council 72
Yugoslavia
72
Index
War Crimes Act 96, 98, 101
War Crimes Unit 121
Warburton, Ann 72
Warsaw Ghetto uprising 30
Weber, Max 26, 27
Westphalia, Peace of 9
Westphalia, Treaty of 89, 13
Wiesel, Elie 49, 5152, 141n29, 147
Williams, Ian 138n20
Witnesses Belorussians 11223, 127
Blustein 106
intimidation 102
Muslims 88
narrative xviiixix
partisanship 127
political/national allegiances xviii,
158
Tadic 8687
testimony 10405
uncorroborated 90
World Trade Organisation 17n50
Xiang Zemin 155
Yakimuk, Fedora 11518, 127
Yom Kippur killing 99, 10607

Yugoslav National Army
(JNA) 59, 64, 71, 81, 91
Yugoslavia (former) xvii
ad hoc tribunal xiii, 13, 19, 21,
55, 7374, 98
armed conflict 21
break-up 7172, 86
ethnic cleansing xi
international community 57
narratives 14041
NATO 75
sovereignty 13
war crimes 72
warfare 56
See also ICTY
Zagreb 60, 81
Zan, Fedor 101, 12223, 127, 143
Zenica 80
Zepa 57, 63
Zionism 148
Zoller, E 7n20
Zundel, Ernst 13334, 145, 149n53
183

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L AW AGAINST

London Sydney Portland, Oregon

First published in Great Britain 2003 by

This book is dedicated to my children

A cosmopolitan law to limit the rights of states

The ordinary and extraordinary Andrei Sawoniuk

Sawoniuk under cross-examination

British National Party

Front de Libration Nationale (National Liberation Front)

Army of the Republic of Croatia

Army of the Bosnian Croats

International Court of Justice

International Criminal Court

The International Criminal Tribunal for the Prosecution of

The Ad Hoc International Criminal Tribunal for the Prosecution

International Military Tribunal for the Far East

Yugoslav National Army

Committee for State Security ((post-war) name of NKVD)

Kosovo Liberation Army

North Atlantic Treaty Organisation

Peoples Commissariat for Internal Affairs

Head Office for Reich Security

Sturm Abteilung (stormtroopers founded in 1922; an elite

Muslim Party of Democratic Action

Political party of the Bosnian Serbs

Schutzstaffel (protection squad; Hitlers bodyguards, Nazi party

Bosnian Territorial Defence

United Nations High Commission for Refugees

UNPROFOR United Nations Protection Force

Head Office for Administration and Economy

Ivan (John) Demjanjuk v State of Israel,

Attorney General of the Government of

Irving v Lipstadt/Irving case

Irving v Penguin Books Limited,

Prosecutor v Blaskic/Blaskic case

Prosecutor v Blaskic, Case No IT-95

Prosecutor v Kordic and Cerkez

Prosecutor v Kordic and Cerkez, Case

Prosecutor v Kristic, Case No IT-98

Prosecutor v Kunarac, Kovac and Vukovic Prosecutor v Kunarac, Kovac and

Prosecutor v Dusko Tadic, Case No IT941, ICTY, Appeals Chamber, 2

R v Sawoniuk (2000) Cr App R 220

Zundel case [1992] 2 SCR 731

Law against genocide

For Jrgen Habermas too the concept of cosmopolitanism and the

individuals. It is new because its authority does not originate in state

Law against genocide

to commit genocide or ethnic cleansing. There is no necessary contradiction

Law against genocide

Chapters Two and Three focus on the two constitutive innovations of

Law against genocide

As I write, Slobodan Milosevic is in the dock at the ICTY, claiming that

Law against genocide

One methodological problem in particular stands out in relation to the use

18 See Baldwin, 2000, p 246.

Law against genocide

Northern Irish accent, which I happened to recognise; other researchers may

Law against genocide

positive. The phrase also implies a profound uniqueness, with which I am

A cosmopolitan law to limit the rights of states

Law against genocide