Tuesday, October 17, 2006

"Fools; Crusade" Chapter Two [19]

UNDUE PROCESS [concluded]

Johnstone then goes into a two-page diatribe against the "privitization" of the Tribunal; apparantly it was supposed to pay its own way--perhaps they could have had a bake sale. I can't find any other explanation for her concern about the the financial support given by Western governments to pay for the Tribunals' work. Of course the NATO countries wanted it to be successful. This was no secret. And yes, the wealthy powerful countries of the world can use their pursestrings to control which international institutions get funding and which don't. This fact hardly constitutes a conspiracy against Serbia.

I normally try to be more thorough and meticulous in my analysis, but this extended piece of meandering paranoia isn't worth the time. I'll sum up the six paragraphs here:

1) Western governments set up the ICTY
2) Western governments set up funding for the ICTY
3) Johnstone believes that "both the United Nations and "justice" itself" are being "privitized."

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She concludes this lengthy section by, essentailly, claiming that absolutely nobody but other nationalist Serbs had the right to try nationalist Serbs accused of war crimes. This rather odd claim starts off with an appeal to "the Anglo-Saxon tradition of common law"..."the right to be judged by one's own peers." No, she isn't making the crude an obvious claim that this should be taken literally; she is pointing out (rightly) that this has been interpreted in the modern world to mean

"that an individual is being judged by people who are not prejudiced against him for reasons of social category (race, nationality, religion, etc.) and are socially close enough to be able to evaluate such intangible factors as motivation."

The mention of "motivation"--given the context--is creepy; but her point is true enough if we divorce it from her less honest intentions. She goes on to mention that in the United States, we try to insure that the jurors are not prejudiced against the defendent.

So...what then? Ultimately, the judicial ideal she is describing aspires to as much impartiality and fairness as possible; the idea is to judge a case on its merits, not on ones personal biases, prejudices, and bigotries. Johnstone seems to feel that, for Serb war criminals, this is an impossible standard to meet:

"In comparison to such scruples, what can one say of judging--without any jury whatsoever--citizens of Balkan states by judges from distant continents with no understanding whatsoever of the complicated background of Balkan conflicts beyond what they have gleaned from the media?"

And thus Johnstone point completely falls apart; one does not need an expert's depth of expertise in Yugoslav studies to grasp the charge of genocide. Crimes against humanity are just that; one reason those of us who believe in interntional justice do so is because we believe in affirming not only a shared sense of justice but an unbounded, universal commonality with all humanity. I do not need a PhD in Balkan Studies to know that the massacre at Srebrenica was wrong, or that the use of mass rape to terrorize members of an ethnic group is a violation of accepted behavior.

At the end of this lengthy section, she is back to this tired canard--the situation in Bosnia was complex, rooted in ancient hatreds and convoluted politics; far too esoteric for any "ignorant foreigners" (her term) to grasp.

Human rights are universal concepts; the entire premise of international justice is that we share a common humanity and we CAN understand the suffering of others and acknowledge the shared, basic level of civility we should expect from each other. Her closing call for the Tribunal to cede its authority to "Yugoslav historians" who would then demonstrate to the Tribunal its inadequacy to judge the situation is nauseating and pathetic, but entirely in keeping with her petty, tribalist mentality.

4 comments:

Owen said...

Expert witnesses can be called to testify to the social, cultural and historical factors they believe relevant. For example, in the Akayesu judgment I've just been looking at there's a section on "Cultural Factors Affecting the Evidence of Witnesses" where the court refers to the testimony given by Dr Mathias Ruzindana concerning oral evidence and response to questions.

That's not the same as a jury of one's peers, but then I'd be interested to know how Johnstone defines the group of peers from which the jury would be selected when the offences have been committed in a context of a divided community.

Kirk Johnson said...

She doesn't define a jury of one's peers. She raises objections, but only to cloud the issue. Here's a quote I probably should have included in the post:

"This may mean seeking jurors who have not followed media coverage of a case. In comparison to such scruples, what can one say of judging--without any jury whatsoever--citizens of Balkan States by judges from distant continents with no understanding whatsoever of the complicated background of Balkan conflicts beyond what they have gleaned from the media?"

As you can see, she is relying on the tired line that the situation in Bosnia was complex, and that outsiders are ill-equipped to understand it; add to that the implication that biased media coverage and propaganda by Western governments have prejudiced all possible judges.

It's a stupid argument; one shouldn't allow him or herself to get dragged into it. The point of international justice is not to understand the historical complexities and finer cultural variables of a given atrocity, but to establish and defend basic, bedrock standards of behavior and justice.

This is a point I should probably revisit later, after I'd had more time to reflect. I'm disappointed in my meager effort in this post. Johnstone's assault on the legitimacy of the ICTY turns into a subversion of the entire notion of international justice in this section; this is a big deal, and I want to 'get it right.' I don't think I did.

I will definately revisit this topic in the future.

Owen said...

Kirk, I think it's inevitable you're going to be carried along in Johnstone's wake because of the step-by-step way you're proceeding with this analysis. At this stage there's no point attempting to tie up all the loose ends. When you get to the end of it all is the time to start reviewing the major themes and dealing with them in a systematic way. Don't let yourself get bogged down just because I'm sounding off on the sidelines - keep up the pace!

jurjen303 said...

Johnstone's assertion "that an individual [should be] judged by people who are not prejudiced against him for reasons of social category (race, nationality, religion, etc.) and are socially close enough to be able to evaluate such intangible factors as motivation" reminds me of an old joke where the judge tells the defendant at the arraignment that he will by tried by a jury of his peers, and the defendant replies "Gee, your honor, where are you going to find twelve other serial killers willing to sit on the jury?"

It is unclear to me what basis Johnstone has for appealing to the common law system of trial by jury, when the former Yugoslavia has no tradition of such a system. Surely it would be an act of blatant cultural imperialism to subject a former Yugoslav national of Serb ethnicity to an alien legal tradition?