transcript

Speaker 1:
[00:02] How do you then deal with a situation which the state itself becomes the agent of criminality? And how do you deal with perpetrators or collaborators who behave out of what one actually SS person described as the comfort of obedience? How do you deal with crimes of obedience as opposed to crimes of deviance?

Speaker 2:
[00:27] It's The Lawfare Podcast. I'm Tyler McBrien, Managing Editor of Lawfare, with Lawrence Douglas, the James J. Grosfeld Professor of Law, Jurisprudence, and Social Thought at Amherst College.

Speaker 1:
[00:39] When it comes to something like a crime against humanity or genocide, even if it's conducted within intrastately, within a confined state, you can basically be tried by any court anywhere. And on one level, you can say, that's a great thing, that's a real vindication of human rights. But it also gives rise to all sorts of possible politicization and possible unseemly abuse to my mind.

Speaker 2:
[01:08] Today, we're talking about Lawrence's new book, The Criminal State, War, Atrocity, and the Dream of International Justice. Lawrence, you've described your new book in various ways that I've seen. You've called it a revisionist account of the development of international criminal law over the last century or so. You've also called it a conceptual reconstruction of the field, and my favorite, a tale of rupture. So first, I was just hoping you could give us a bit of a lay of the land, what you're up to in this book.

Speaker 1:
[01:40] Yeah. So I do have those three different elevator pictures. In fact, I could even add another one which says, which would say that the book is about how the field of international criminal law was both formed and deformed by its response to Nazi Germany. And I guess what I meant by the notion of the rupture or the conceptual overview was that, I think if you look at most books about international criminal law, they basically treat Nuremberg as the great early precedent. Then you have some problems during the Cold War. Then finally, you kind of find a renewed dedication with the UN Tribunals in the 1990, and then finally with the International Criminal Court. So it's more or less kind of like a somewhat linear story with bumps along the road. And I guess one of the main interventions I'm trying to do in the book is to say that actually, the Nuremberg approach was this aggression-based approach, which ultimately fails in my mind and is replaced by the more recent focus in international criminal law on what I call crimes of atrocity.

Speaker 2:
[03:00] Right, and so this failure of the aggression paradigm leading to this shift in the atrocity paradigm, at least for me, this narrative placed that shift a lot earlier. The aggression paradigm seemed doomed sooner, I don't know, maybe doomed is too strong of a word, but sooner than I, at least I had previously conceived of it. So where do you see this shift having happened? Where do you place it in the narrative?

Speaker 1:
[03:27] Yeah, well, maybe I should just explain a tad more fully about what I just mean by the aggression paradigm. And if you go back to Nuremberg, today when people look at Nuremberg, I think they tend to think about Nuremberg almost as a Holocaust trial. And in fact, I've been to a number of conferences which almost kind of treat Nuremberg that way. But in fact, that wasn't what Nuremberg's main focus was. It was not focusing first and foremost on the Nazis crimes against humanity. The main focus of the Nuremberg trial was on the war of aggression that Nazi Germany had launched both on the West and the East. And that war of aggression at Nuremberg is called Crimes Against Peace. And it really was the centerpiece of the prosecution's focus and the judgment of the International Military Tribunal. In their concluding judgment, the judges of the Nuremberg Court described the crime against peace as the supreme international crime. And part of the idea was Nuremberg was trying to create this kind of edifice of international criminal law for the post-war period. And the notion was that by focusing on aggression, aggression would really be the centerpiece of this emerging system of international criminal law. And that's really kind of what I mean by the aggression paradigm, this focus on aggression as the centerpiece of this emerging system of international criminal law. And as you point out, Tyler, I try to argue in the book that that focus, that paradigm, it starts to unravel really quickly. So sometimes when people refer to Nuremberg, and sometimes people refer to the Nuremberg trials in the plural. And just to kind of remind your listeners by singular, we're really talking about the International Tribunal, the first basic international criminal court in human history, collaborative exercise by the United States, Soviet Union, France, and Great Britain. And the Nuremberg Trials, plural, that refers to these 12 subsequent trials that were conducted by the US military, basically in the same courtroom as the International Trial. They had this nice sort of wood panel courtroom in the Palace of Justice in Nuremberg, and the American military conducts these 12 subsequent trials, a total of about 185 defendants. And that trial program of the American military is meant to build on the Nuremberg focus on aggression. And rather than contributing to that emphasis, it ends up kind of unravels it. And the unraveling kind of leads to a much greater focus on crimes of atrocity, war crimes, arms against humanity, and then this kind of emerging concept of genocide, and much less of a focus on aggression. And we see that same trend occurring in the companion trial to Nuremberg that takes place in Tokyo, the so-called International Military Tribunal for the Far East.

Speaker 2:
[06:40] Yeah, I want to pick up on that. I mean, the line that you talk about, the famous line from, I believe, the final judgment of the Nuremberg trial, that the War of Aggression is the supreme international crime and that it contains within itself the accumulated evil of the whole. It almost seems that this would fall on contemporary ears in a bit of an odd way, given the, as you mentioned, the popular conception of Nuremberg as focusing on the intrastate crimes of the Nazis and interstate, I guess, against especially the Jews. I guess, yeah, I want to talk about more of how this shift happened of the subsequent trials, but then also of the trial of Adolf Eichmann in 1961 in Jerusalem. How did that trial also continue to contribute to this shift?

Speaker 1:
[07:30] Well, so just focusing on the quotation that you just mentioned, that this is the supreme international crime again, this is the holding of the court at Nuremberg, and it contains within itself the accumulated evil of the whole. And another way to put that is that they basically, this is the Nuremberg Tribunal basically treated war crimes and these crimes against humanity, which is the term with which they used to bring in evidence of the extermination of the Jews of Europe. They kind of treated them as knock-on effects of the war of aggression. So basically the idea is, hey, if you didn't have this criminal war of aggression in the first place, you never would have had war crimes or extermination either. So they kind of treat them as knock-on effects. When you go to the Eichmann trial, the Eichmann trial, this is the trial that takes place in Jerusalem, 1961 of Adolf Eichmann, who really wasn't what we might describe as a major figure within the Nazi state. But we can kind of think of him as the chief logistical officer of the extermination policy of Nazi Germany. He's basically the one who kind of worked out the logistics of sending over a million Jews, largely from Western Europe to these killing centers in the East. And that trial very consciously tried to decouple or move away from the logic of Nuremberg, and really tried to say no when you're talking about this kind of state-sponsored extermination, state-sponsored genocide, that's kind of a crime sui generis. It's a unique crime and you can't simply understand it as a knock-on effect from the war. It really was a crime that has its kind of own logic, its own meaning, and it has to be understood differently. And I think that trial, which really galvanized a tremendous amount of attention, not just in Israel where it took place, but specifically in West Germany and the United States, it really worked to kind of elevate the status of these atrocity crimes. Again, what I would say, first and foremost, genocide crimes against humanity, also maybe a little less to a degree severe war crimes, really kind of saying those crimes, they are the chief crimes in international criminal law, and they deserve more of our attention than does, let's say, state aggression.

Speaker 2:
[10:01] And there, was this a conscious choice by, let's say, the prosecutors in the Eichmann trial? Was this a strategic choice? What motivated this continuing the shift, especially in the prosecution of Adolf Eichmann?

Speaker 1:
[10:14] Well, I think there was particularly among, let's say, Jewish observers, there was a lot of unhappiness with the Nuremberg trial. Nuremberg was largely a trial by document. If you look, for example, of the number of Jewish survivors who testified at Nuremberg, only three of them testified. Their testimony, I think, if you kind of just count the number of pages, I think their testimony sums up to about 100 pages of transcript in over 10,000 pages of the Nuremberg transcript. And so there was a pretty strong sense that Nuremberg failed to do adequate justice to the extermination of European Jews. And so in that sense, the Eichmann Trial really tried to reverse that, really tried to say, look, this is not a trial about aggression. This is a trial of what we think is the more foundational offense. So it's not as if they were engaged in a direct attack of what I would describe on the aggression paradigm, but they certainly were very consciously attempting to create a trial that would galvanize interest on the genocide of the Jews of Europe. Another thing that basically contributed to the success of Eichmann is, as I just mentioned, Nuremberg really focused on documents. And the idea of the prosecution was documents that it's harder to impeach documents that the Nazis themselves produced. They're kind of sturdier evidence than eyewitness testimony. At the same time, it contributed kind of to a dullness of the Nuremberg trial. You know, everyone kind of thought Nuremberg was going to be this spectacular, you know, basically a legal spectacle. And in fact, in the words of Rebecca West, this famous journalist who covered the trial, who incidentally also had an affair with the American judge on the trial, Francis Biddle, but Rebecca West kind of famously described Nuremberg as a citadel of boredom, largely because the prosecutor spent a long time just reading documents aloud in the courtroom. And at Eichmann, the Eichmann trial also tried to correct that by basically organizing the trial around the testimony of survivor witnesses. And that also played a big role in galvanizing attention to the trial because the survivor testimonies really were quite riveting. And they did a quite good job of vetting the witnesses in advance to make sure that basically good courtroom storytellers would be asked to testify.

Speaker 2:
[13:04] I want to bring in the title of the book and the concept of The Criminal State. And to do that, I would love to hear why you chose to start the book where you did, which is this debate in Germany over the statute of limitations for a much more ordinary or prosaic crime, if you want to put it that way, of murder. Of course, this is much more complicated given in postwar Germany, given the crimes of the Nazi state. Take us to the beginning of the book. Why did you start it there?

Speaker 1:
[13:37] It's interesting. Germany, I think, has the deserved reputation of being a state which has done a pretty good job of confronting this horrific past and it's represented in the Third Reich. At the same time, if you look at the German legal system, it compiled a pretty pathetic record of dealing with in prosecuting former Nazis, many, many of which ended up living in particularly West Germany and then come 1990 with what we just now call the Federal Republic of Germany once East Germany basically disappears. One of the things, this is legal technicality, but your audience loves legal technicalities. Crimes against humanity and genocide. Crimes against humanity is first recognized as an international crime basically at Nuremberg. So we're talking about obviously after the war, Nuremberg, the main trial takes place from November 45 until October 46. Genocide is first recognized as its own freestanding independent crime and international law in 1948 with the UN Genocide Convention, very first convention that is passed by the fledgling United Nations. What German jurists decide in the very early years of the Federal Republic, West Germany at the time, they decide that charging former Nazis with crimes against humanity or genocide would be a violation of the new basic law of Germany because it would represent using retroactive law. Again, it's a crazy conclusion. No other European state accepted that, but basically it was like because these laws against crimes against humanity and genocide were only first recognized as law after the war, you can't use them as prosecutorial tools because that would be a violation of the bar against using retroactive criminal statutes. Kind of a crazy conclusion. Well, that meant that they had to rely on a domestic law that was in place basically during the Third Reich for the purposes of prosecuting people who were responsible for Nazi era atrocities. Statute they rely on is the murder statute, but the murder statute was actually controlled by a statute of limitations. It was a 20-year statute of limitations at the time that this important interview takes place. What that meant, a 20-year statute of limitations meant that come 1965, the statute of limitations on all Nazi era crimes was about to toll. So come May 8, the end of the war in Europe in 1945, come May 1965, the statute of limitations was about to run. So this created this really interesting interview that took place in Der Spiegel, the German News Weekly in 1965 between Rulof Augustin, most famous publisher in Germany at the time, Rand Der Spiegel, and Carl Jaspers, who is arguably the most important living philosopher. They're arguing about this whole notion about whether statute of limitations should be extended, which really had turned into not just a national debate, but an international debate because people were appalled by this idea that, wait a second, come May 1965, German prosecutors are going to be unable to charge any SS man, anyone associated with Nazi genocide with anything. One of the things that Carl Jaspers, one of the arguments that he makes in talking about the urgency of extending the statute of limitations, he basically says, you have to reckon that the Nazi state was something completely different than anything we've seen before. It was a Verbrächerstaat. Verbrächerstaat just translated as criminal state. By criminal state, I think he critically was trying to make a distinction between let's say a bad regime. On the one hand, we've seen many, many bad regimes over the course of European and we can say even American history. But a criminal state for him was a state in which basically every major apparatus of the state, let's say it's it's bureaucracy, it's military, it's administration of justice, all of these basic institutions have been turned towards criminal ends. And for Yaspers, he was really trying to get at something, I think he was just trying to emphasize how novel that was, and how that represented a rupture with standard political understandings of Western states.

Speaker 2:
[18:27] And what was the upshot of this label of the criminal state? As you mentioned, there were several challenges associated with the aggression paradigm, but also several new challenges arise out of this concept of the criminal state. Could you talk a bit more about that in raising this concept?

Speaker 1:
[18:49] Yeah. So I think for Yaspers, and he wasn't the only one who used this term criminal state, Hannah Arendt in her famous book Eichmann in Jerusalem. She also talks about the Nazi state as a criminal state. You have other people also kind of using this parlance. And part of it was trying to show just kind of conceptually how difficult it was to metabolize, given kind of long-standing beliefs in Western political thought, legal thought about the kind of normative distinctiveness of Western states. Now we can kind of interrogate those assumptions, but there was a pretty powerful ideology which associated Western statehood with basically the apogee, with the height of human civilization. And suddenly, you know, how do we make sense of the fact that one of the great pillars of civilization, Germany, the land of Dichter und Denke, of poets and thinkers, that it suddenly became this completely deformed agent of criminality. So that was one thing, kind of this conceptual challenge of how do we metabolize that. And then more generally, you know, anyone who has studied law knows that criminal law is usually understood as a domestic system. And in that domestic system, crimes are basically kind of considered deviant acts. Now, deviant acts, I don't mean that they're committed by, you know, deviant personalities, but just deviant, you know, a definitional sense that it's the state that defines what crimes are and criminal behavior deviates from the norms and laws that the state has created. Well, how do you then deal with a situation which the state itself becomes the agent of criminality? And, you know, how do you deal with perpetrators or collaborators who behave out of what one, actually, SS person described as the comfort of obedience? You know, how do you deal with crimes of obedience as opposed to crimes of deviance? And so I think those are kind of two of the things that Yaspers and people like Arendt were trying to get at, but the challenges posed by the advent of this thing they call the criminal state.

Speaker 2:
[21:12] Yeah, and let's get into some of those challenges. I mean, I think on the one hand, this may sound familiar to anyone who knows that a lot of international criminal prosecutions are levied against those in command and control positions, for example, but maybe a more lay listener could hear this idea of the criminal state and worry that it would absolve individuals within the state of any sort of criminal liability or accountability, but it doesn't quite do that. And one of the reasons you bring up of why the criminal state may be a helpful concept is because not every person in the Nazi state fits the stereotype of this SS sociopath. So talk about some of those trade-offs there with this concept.

Speaker 1:
[22:00] Right, and it's kind of, as you're suggesting, Tyler, one of the things that I'm talking about in the book, when I use the term criminal state, so I'm not trying to make it, I'm not looking at the literature, and there is a literature that says, oh, maybe we can actually try a state as a criminal, basically as a criminal itself. So there is an attempt by some legal thinkers to kind of import concepts from corporate criminality, because under certain circumstances, you can actually treat a corporation as a criminal. And they try to argue, maybe we can treat a state as a criminal. Well, that's not really my concern. My concern is how the agents of the criminal state, the perpetrators, the leaders, the perpetrators of the crimes of the criminal state, the collaborators and accessories in the crimes of the criminal state, how they can be prosecuted. And again, to look at the prosecutorial problems that arise when you're basically dealing with, you know, members of a state apparatus who are participating in crimes. And one of the things that, you know, I also try to point out in the book is if, like at Nuremberg, you're really focusing on the crime of aggression, the crime of aggression is almost by definition a leadership crime. The only people who can be charged with a crime of aggression, that is for launching, you know, an aggressive war, are the very top echelons of the state because they're the only ones who really have power to make those kinds of decisions. But if you turn to crimes of atrocity, you know, things like genocide, crimes against humanity, well, those are more what I could describe as vertical crimes. And by vertical crimes, I simply mean, they often run from, you know, the very heads of the state through a bureaucratic organization, all the way down to frontline perpetrators and accessories. And there, you're talking about, you know, tens or even hundreds of thousands of people who could be implicated in the crimes of the state. And that obviously creates enormous prosecutorial problems. You know, any kind of prosecutorial program then is going to be in certain ways a symbolic program. And, you know, on some level, even a successful prosecutorial program is almost going to highlight the relative impotence of the prosecution to kind of mount an adequate response because it's going to be, you know, just a fraction of the total people who are responsible. And the prosecution is almost going to highlight the, you know, the discrepancy between the law's sanction, even if it's a severe sanction, and the magnitude of the crimes that are being prosecuted.

Speaker 2:
[24:52] And before we turn to the new challenges that arise out of the shift to the atrocity paradigm, could you just close the loop for listeners of slotting this idea of the criminal state into this shift from the aggression to the atrocity paradigm? Again, why did you seize on this concept to explain the when and the why of this shift?

Speaker 1:
[25:14] Right. So I think if you go back and, you know, if we talk about a criminal state, one question you could come up with is, you know, what's the paradigmatic crime of that criminal state? And obviously, Nuremberg had a very clear answer. Its answer was aggression. That said, you know, one of the things I try to point out in the book is, Nuremberg had a pretty confused understanding of what they meant by the crime of aggression. So if you even look at the charter of the Nuremberg Tribunal, Nuremberg sets out three substance of crimes that the 22 defendants were being tried for. Crimes against peace or war of aggression, war crimes, crimes against humanity. And if you look at the charter's definition of war crimes, it's pretty clear. They give a pretty precise definition. You look at their definition of crimes against humanity, pretty precise definition. You look at their definition of crimes against peace, there's no definition at all. They basically punt on the definition. And the reason I think that is pretty important is because even at this London conference that takes place in the summer of 1945 before the trial starts in which delegates are hammering out the details of the trial, basically working out the exact structure of the charges, structure of the court itself, you have this really interesting conversation that takes place between Robert Jackson, he's on leave from his position as Associate Justice on the US Supreme Court, to basically run the US prosecution. And this Andre Gross, who is a French Professor of International Law, who's also a delegate at the London Conference. And one of the things that Andre Gross asked Jackson, he says, well, wait a second, what makes a war of aggression criminal if there are no war crimes committed in its prosecution and there are no crimes against humanity? I'm just not sure why is, let's say, violating the territorial integrity of another state, why is that a criminal act if it's not associated with any war crimes or crimes against humanity? And Jackson basically kind of gets all impatient and says, you know, that's ridiculous. Look at what Nazi Germany has done. The way they've waged their war of aggression is through war crimes and crimes against humanity. And that basically is exactly how the prosecution and the court at Nuremberg accept the crime. But that question that Grosfeld asked Jackson is never satisfactorily answered. It basically haunts post-Nuremberg efforts to define this crime of aggression. It becomes very, very difficult. Whereas if you're dealing with something like genocide or crimes against humanity, we have pretty solid definitions and we have a pretty solid idea that a genocidal state is a criminal state.

Speaker 2:
[28:28] Because you brought up Robert Jackson, now all I can picture is Michael Shannon who portrayed him in last year's movie Nuremberg. So as tempted as I am to ask you what you thought of the Nuremberg film with Russell Crowe last year.

Speaker 1:
[28:40] You're welcome to ask me.

Speaker 2:
[28:42] Well, what did you think?

Speaker 1:
[28:43] I thought it was pretty poor. I thought it was a pretty poor movie. I thought Russell Crowe is very good as Göring, but I thought both the actors who play, the psychiatrist and the actor who plays Robert Jackson, very good actors, but I thought they were pretty badly miscast. And if you want to see a great Nuremberg movie, I would suggest going back to Judgments at Nuremberg, which is not about the International Tribunal, but about one of the American trials. But that's a great movie, that old Spencer Tracy movie. But anyway, didn't love it.

Speaker 2:
[29:18] I hope most of our listeners have seen that. But if not, we will put it in the show notes. But one thing I was trying to parse when reading your book is, what you think normatively of this shift, whether it was prudent or appropriate or good, because you do such a great job also of raising the new challenges associated with the atrocity paradigm in terms of jurisdictions, spatio-temporal challenges, this belatedness problem that you talk about. What were these new challenges that arose out of the shift to the atrocity paradigm?

Speaker 1:
[29:53] Well, to just answer the first thing you mentioned, I do think it was appropriate to shift to atrocity crimes. I think that really is something like, I think it also connects with the development in human rights law. I think human rights law actually develops in part a response to this shift and attentive to this shift. On some level, I think it's normatively correct. I think it was almost, in a way, also legally inevitable. But as I try to point out in the book, there are big problems with the prosecution of these crimes of atrocity. And some of the problems have to do with the jurisdictional problems. Some of them have to do with these temporal problems. That's what I was talking about, the way in which these crimes of atrocity explode spatiotemporal limitations that we normally associate with criminal law. And if that sounds overly abstract, all I mean by that is two things is, one thing is that these crimes of atrocity, they have no statuational limitations. So beginning of our conversation, we were talking about the unseemly struggles that Germany went through in having to rely on its ordinary murder statute to deal with the prosecution of World War II era atrocities. Well, these crimes of atrocity, they aren't controlled by any statuational limitations. And so as a result of that, you kind of get these superannuated trials. In fact, Germany ultimately faces all this pressure to abolish its statuational limitations from murder and does so. So you have these bizarre things like, I think in the book I mentioned this trial of Imgad Fischner. She was the secretary to the commandant at the Stutthof concentration camp. She was convicted in a courtroom in Germany when she was 97 years old. So just recently, just a couple of years ago, she was convicted. But the bizarre circumstances, she ends up being tried in a juvenile court. Why? Because her original tenure as a secretary to the commandant at Stutthof began when she was 17 years old. She hadn't yet reached the age of maturity under German law. And so this trial that takes place 80 years later of a 97-year-old woman has to be conducted in a juvenile court. So it raises all these kinds of issues about what are the purposes and justice of these really, really late-in-the-day trials. And then there's also the spatial element, these crimes of atrocity, they basically give rise to this thing called universal jurisdiction. And universal jurisdiction is basically the idea that jurisdiction is conferred simply by the nature, by the severity of the crime itself. So, for example, if you go into a convenience store here in the United States, and you, you know, murder a clerk in a convenience store, that's certainly an awful, horrible thing. But is it a universal crime that you can be tried for if you actually, you know, fly for a vacation, let's say, to, you know, anywhere, let's say Sri Lanka, could a Sri Lankan court try you for murdering someone in a convenience store in the United States? The answer is clearly no. But when it comes to something like a crime against humanity or genocide, even if it's conducted within interest stately, within a confined state, you can basically be tried by any court anywhere. And on one level, you can say, oh, that's a great thing. That's a real vindication of human rights. But it also gives rise to all sorts of possible politicization and possible unseemly abuse to my mind.

Speaker 2:
[33:54] So the possibility paradigm, as you mentioned, has in turn led to new legal concepts, which in turn raise their own challenges. But another upshot of the attempts to get around this belatedness problem, perhaps attempts to avoid the awkwardness of this trial that you mentioned, that it's one of those moments that's like, what are we doing here? Is you took it to an interesting place to me, which is connecting it to this desire to avoid the crimes ever happening, and the way to do that is through humanitarian intervention, as it's called. So this responsibility to protect doctrine. Can you talk about that connection? I thought that was a really interesting strain there.

Speaker 1:
[34:40] Exactly. I really think that that is an important upshot. I think if you're really thinking about the logic of trying to fight atrocity crimes, any kind of juridical response, any kind of prosecutorial response, it's kind of after the fact. You know, the atrocities have already occurred. And anyone who thinks that, well, it still has incredible value because it's going to deter some future regime from engaging in genocide. I think that's a pretty naive assumption. I don't think these genocide prosecutions have any kind of real deterrent effect. Or if they do, it's impossible to say. I mean, how do you make an argument for a negative effect? So the logic really pushes to a more robust response. In fact, if you look at the genocide convention itself from 1948, it basically says there's an obligation, you know, to make sure that these things don't happen. And that seems to push in the direction of some type of intervention. And by intervention, we really kind of ultimately, I suppose, mean, you know, military intervention. And if a genocide is ongoing, then it's going to put a lot of pressure on some really kind of rapid military intervention. And that itself is an incredibly fraught thing. You know, the so-called wars of humanitarian intervention. Some people might say that very concept, war of humanitarian intervention is oxymoronic. But it did, you know, it seemed to be relatively successful in the case of the NATO air war over Kosovo in 1999. And yet, if you look, for example, at the UN authorized intervention in Libya in 2011, which was, you know, under the kind of retooled the doctrine of humanitarian intervention and called it Responsibility to Protect, that turned into an absolute catastrophe. And even now, you know, I don't want to necessarily draw a direct connection to what's going on in Iran. But anyone who thinks that you can get rid of some really nasty regime in a simple way and therefore stop it from engaging in atrocities against its own people, that's pretty naive as well. And obviously, we've learned the hard way about the difficulties of engaging in anything remotely like regime change, even in circumstances when it seems entirely justified and in the interest of some type of humanitarian concern.

Speaker 2:
[37:21] Right. So if we take this idea of humanitarian intervention as at least one attempt to overcome or sidestep the challenges associated with atrocity trials, there are still, as you write about, benefits or there is still value in the atrocity trial beyond what a trial can accomplish in terms of delivering justice. I'm speaking about these, what you call didactic elements. So what is still the value, though, or the benefit of an atrocity trial, even given its associated challenges?

Speaker 1:
[38:01] Yeah, even given its limitations, I agree completely. In the book, I do try to say, look, there is an unmistakable value to these trials. Part of the value is it's a symbolic expressive value. They do have a tendency to galvanize international intention, which I think is important. I think the idea of a genocidare living out their life in the comfort of a home just rubs us all the wrong way. I think there is an important expressive function in saying, we are not going to permit this crime of this magnitude to go unpunished. Obviously, they can perform these other functions. They can give survivors an opportunity to unburden themselves in a public setting. I think we almost are not the first person to observe this, the way in which we live in this age of testimony or this age of victimhood. And so these trials do perform a valuable function in that they perform almost a public recognition of the suffering or they commemorate the suffering of victims of these mass atrocities. You know, they also can play a positive role in developing a preliminary historical, you know, responsible historical account. Now, there's some people who say, oh, well, courtrooms are not the best venue for creating a history of a difficult episode. Leave that to professional historians. I would kind of challenge that. I think very often these trials do a pretty good job of not just creating a archive that future historians can work from, but also from just, you know, establishing the outlines of a pretty responsible history that can guide political understandings of, you know, a really unfortunate episode in human history. And again, I don't want to necessarily overemphasize this. I'm a little skeptical sometimes of this term transitional justice, but I think, you know, these trials can also, in a way, help criminal states or, you know, bad regimes or not everything has to be criminal state, but, you know, some kind of regime that has engaged in mass crimes to transition to some kind of more positive democratic future. Now, again, I would take that with a grain of salt, but I think it's, we shouldn't overlook at least the partial capacity of these trials to contribute to these positive ends.

Speaker 2:
[40:47] No, that's a really helpful transition to where I was hoping to end, which is a place of cautious optimism, if you want to put it that way. You know, it's, I often struggle to end discussions about international criminal justice and international law, especially right now on such a note. But I did stumble upon something that you said to M. Gessen in their column, a New York Times column, I believe, several months ago, where you said, some people say that the glass is nine-tenths empty when it comes to international justice or the history of international justice. But you like to say it's one-tenth full. So I think that's fair to categorize as cautious optimism. Where do you see this paradigm that is still, I guess, hegemonic heading in terms of addressing these challenges and limitations? Why do you see international justice as one-tenth full rather than nine-tenths empty?

Speaker 1:
[41:45] Well, again, we don't want to end on a bummer. So obviously, there are lots of reasons to be concerned about what's going on in the world today, especially when it seems like you have these three most powerful states who seem to be operating with some type of impunity. And you have people like Stephen Miller got a lot of attention basically saying that, well, foreign relations are based entirely on force and basically might makes right, which is kind of a reversal of the whole project that emerges out of Nuremberg through today, whether you're focusing on aggression or you're focusing on atrocity, that actually there is not just norms, but there's law that is meant to constrain even the most powerful state actors. Does that law operate on these powerful state actors? Well, you can be pretty pessimistic on it, but I think we need to have realistic understandings. Even if you look at something like the Yugoslavia Tribunal that the UN created in the early 1990s to deal with the atrocities that emerged out of the Civil War there, the knock on that tribunal was, it's only going to try small fish, it's never going to get the big guys like Slobodan Milošević, the former president of the Serb Republic, it's never going to get Radovan Karadzic, who was the president of this breakaway Republic of Srpska, it will never get Ratko Mladic, who was the general who was responsible for the Srebrenica massacre in 1995, and lo and behold, to the surprise of everyone, the tribunal ended up getting all three of them, and Milošević dies during his trial, but in the case of Karadzic and Mladic, they're both convicted, given life terms, and is that predicting that Vladimir Putin is one day going to see his be put on trial at the Hague? No, I'm not necessarily predicting that, but again, these things are very difficult to predict, and so that's why I like to emphasize the one-tenth fall rather than the nine-tenths empty.

Speaker 2:
[43:57] Well, that does seem like a good place to end. The book is The Criminal State, War, Atrocity, and the Dream of International Justice. It's really riveting history and unfortunately, also extremely relevant and urgent to today. Lawrence Douglas, thank you so much for joining me.

Speaker 1:
[44:13] Real pleasure talking with you, Tyler. Thanks so much.

Speaker 2:
[44:19] The Lawfare Podcast is produced by The Lawfare Institute. If you want to support the show and listen ad free, you can become a Lawfare material supporter at lawfairmedia.org/support. Supporters also get access to special events and other bonus content we don't share anywhere else. If you enjoy the podcast, please rate and review us wherever you listen. It really does help. Be sure to check out our other shows, including Rational Security, Allies, The Aftermath, and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. You can also find all of our written work at lawfairmedia.org. The podcast is edited by Jen Patsia, with audio engineering by Kara Schillen of Goat Rodeo. Our theme music is from Alibi Music. As always, thanks for listening.