13 Colum. J. Eur. L. 471 (2007)
Julian Davis Mortenson. Associate, Wilmer Cutler Pickering Hale and Don; Law Clerk to the Honorable David H. Souter, United States Supreme Court (2003-2004); Associate Legal Officer, Office of President Theodor Meron, International Criminal Tribunal for the former Yugoslavia (2004-2005).
Pierre Hazan, Justice in a Time of War: The True Story Behind the International Criminal Tribunal for the Former Yugoslavia, Texas A&M University Press, College Station, Texas, 2004. Pp. 272. Translated by James Thomas Snyder. Originally published as La Justice face 6 la guerre: de Nuremberg 6 La Haye, Stock, Paris, 2000.
The International Criminal Tribunal for the former Yugoslavia (ICTY) is today a formidable institution, an administrative machine more than a thousand employees strong that occupies a giant building in The Hague, just outside the heart of the city known as the center of international law. While the ICTY was designed from the beginning to be temporary,’ these days its sheer physical presence and wheezy bureaucracy give it a sense of permanence and inevitability. Pierre Hazan, in a book that has been translated by James Thomas Snyder, systematically dismantles this image, re-situating his readers in the uncertain early days of the Tribunal and arguing that its contemporary success is the wholly contingent result of efforts by a handful of stubborn idealists.
Hazan’s book tells the Tribunal’s story mainly from the insider’s perspective of those involved in its creation and development. His account is based largely on a remarkable set of interviews with an array of leading lights at the ICTY: Antonio Cassese, M. Cherif Bassiouni, Carla Del Ponte, Louise Arbour, Richard Goldstone, Claude Jorda, and a string of other ICTY judges, prosecutorial staff, and diplomatic aides. Hazan’s connections and background as a journalist and not a legal scholar are in dazzling display throughout the book; his success in teasing out so many vivid anecdotes and providing so much personal color leaves us with an engrossing story of an institution created by reluctant decision makers who were anxious to keep it under control at every step.
The journalistic grounding that is the book’s real strength, however, also produces some unfortunate flaws. In the course of his reporting on the Balkan conflict, Hazan’s imagination was captured by a peculiar exaltation of prosecution as moral pageant, leaving him quick to castigate anyone who does not share his crusading allegiance to the criminal justice paradigm. This zeal ends up venting itself on two very different targets.
First and foremost, it takes the form of persistent and often unfair criticism of anyone who prioritized other values besides the aggressive prosecution of the major Balkan villains. In particular, he treats with disdain the balancing act between the Tribunal’s quest to end impunity and the sometimes conflicting objectives of ending the underlying conflict, protecting civilians, and conserving the lives of NATO soldiers. His attitude on this score often reinforces a more general prejudice against the Western powers, and America in particular, that can be distracting in its insistence on looking for hypocrisy behind every action.
Second, Hazan’s zeal for prosecution as a pageant of punishment leads him to demand a clean narrative of retribution from the Tribunal itself, unclouded by a serious recognition of the limits of law and the requirements of procedural justice. He seems untroubled by the ambiguous legacy of the Nuremberg Tribunal or by the extent to which, despite its great successes and foundational legacy for international criminal law, Nuremberg has been criticized as victor’s justice. As much as he is impatient with the diplomats for their diplomacy, he begrudges the lawyers their legalism. It is a strangely unsophisticated point of view for a narrative that, as a factual matter, is so well informed.
The book’s odd combination of idealism and cynicism ultimately renders it more useful as a somewhat idiosyncratic narrative than as a piece of historical analysis. But Hazan has nonetheless performed an invaluable service for students of history and of international law in particular. His access to the relevant decision makers and his ability to get them to speak candidly are simply extraordinary. He has taken this staid monolith and left us with a permanent record of the shaky path toward its position today. For all of the Tribunal’s flaws, it stands as a living monument to the concept that state power must be legally restrained in its capacity to inflict harm upon individual human lives. Hazan’s narrative reminds us just how much uncertainty clouded the rise of the seemingly inevitable institution that looms over the field of international justice today.