STAY THE HAND OF VENGEANCE: The Politics of War Crime Tribunals.

STAY THE HAND OF VENGEANCE: The Politics of War Crime Tribunals by Gary Jonathan Bass Princeton University Press, $29.95

FEW SIGHTS IN PARIS ARE BETTER than standing on the Champs Elysees at night and looking at the Arc de Triomphe. Commissioned by Napoleon in 1806 after his great triumph at Austerlitz, the Arc is a monument to all his victories.

Like most visitors to France, I have been struck by the aesthetics of the monument, not by the record of the man. Yet recently, on reading Gary Jonathan Bass' informative new book, Stay the Hand of Vengeance: The Politics of War Crime Tribunals, I realized that during the early 19th century most of Europe--outside of France--regarded Napoleon as the Slobodan Milosevic of his day.

Napoleon's armies, after all, pillaged much of the continent, overthrew legal governments, and set up puppet regimes. As with Milosevic, there was fierce debate over how best to punish Napoleon. The Prussians, furious that his troops had executed their prisoners--a war crime then and now--were most extreme. Prussian field marshal yon Blucher declared that Napoleon should be summarily shot. "But Britain would have none of this," writes Bass, "because of an idiosyncratic intrusion of its domestic traditions into its foreign policy--in this case, the gallant or priggish refusal of Wellington to have anything to do with so sordid a deed"

The British position prevailed. After Napoleon was defeated at Waterloo, British marines arrested him, and he was banished without trial to spend the rest of his life on the island of St. Helena in the frigid South Atlantic.

In the 185 years that have passed since Napoleon's banishment, the international community has developed an array of legal mechanisms to deal with people who wage war in ways that violate international law. While great progress has been made, the world is far from the point where justice is applied uniformly. Dealing with Milosevic, as with Napoleon, the administration justice largely depends on the political needs of the victors.

In today's world, there is a full spectrum of responses to war crimes. At one end is the punishment the Prussians wanted for Napoleon--summary execution. At the other end of the spectrum, war criminals escape scot-free--Saddam Hussein is a prime example. In between, there are many shades of gray.

Bass, a journalist and professor of international politics at Princeton, focuses his book on the factors that determine whether war criminals are held legally accountable--"why some countries will sometimes be strikingly idealistic in the face of foreign wickedness, and at other times will cynically abandon the pursuit of justice?" He lists a series of variables that determine the approach likely to be followed.

The first of these is the legalism of liberal states. Illiberal states, such as the former USSR, are not usually concerned with legal niceties. They favor executions, sometimes preceded by show trials. During World War II, Stalin told Churchill and Roosevelt at Tehran that 50,000 Nazis should be shot when captured. The scale of Stalin's proposal, not the principle, horrified Churchill who believed that only a "short list" of Hitler's close collaborators should be executed on the spot. Roosevelt initially agreed with Churchill, and for a brief time summary execution of top Nazis was the joint British-American position. However, U.S. Secretary of War Henry Stimson took what Bass calls the legalist view--meaning that due process should be applied and that basic fairness required that even the worst of the Nazis should be tried before military tribunals. His view won out and the result was the war crimes tribunal at Nuremberg. As Bass writes, the Nazis were "accorded the benefit of legal procedure as it had evolved in America, because of an American belief in the rightness of its own domestic legalism"

The second factor that determines the application of justice relates to the protection of soldiers. Bass points out that when states are not pursuing unconditional surrender, as the Allies were in World War II, they are reluctant to put their own soldiers at risk in order to arrest war criminals. For example, NATO forces in Bosnia, led by the U.S., have tried to avoid casualties, at virtually any cost. While they have arrested some lesser suspects, they have not seized either Radovan Karadzic or Ratko Mladic, top Bosnian Serb leaders who were indicted for war crimes by the international tribunal at the Hague.

Third, Bass notes that states are usually most intent on prosecuting war criminals who commit illegal acts against their own citizens. Thus, he notes that the British government has shown considerably more interest in bringing to justice the Libyans who allegedly blew up Pan Am 101 above Lockerbie, Scotland than it has been in punishing Serbs for atrocities against Bosnian civilians. "Selfishness predominates, but not totally," he says. At the same time, international rhetoric--if not action--is definitely rising against national selfishness and against the tendency to take more seriously crimes against people of one's own race than those against others (compare the Western response to human rights abuses in Kosovo to that in Rwanda or East Timor).

Anger is the fourth factor. During World War II, Britains and Americans shared very strong feelings--including large doses of racism and national hatred--against Germans and Japanese. If, as Bass points out, for some reason Churchill and Roosevelt had not wanted to take action against top Nazis at the end of the war, they would have had angry publics to contend with. A dictator like Stalin can much more easily ignore popular outrage, although even the most entrenched leader takes political risks by doing so. "Today," Bass writes, "Madeleine Albright's push for a tougher war crimes policy may manage to win out, but it always risks being swamped in bureaucratic infighting or overruled--by the Pentagon, Bill Clinton, or an American electorate with no stomach for casualties. The best guarantee of an idealistic policy is consistent idealistic pressure from the electorate."

Lastly, there is the growing importance of non-governmental organizations (NGOs). During World War II, Churchill and Roosevelt did not have to contend with Human Rights Watch accusing them of moral deficiency because they were putting military considerations in front of saving concentration camp inmates. If today's human rights consciousness had existed during World War II--and it is unfortunate that it did not--intelligence reports of Nazi atrocities would have leaked out, and Allied leaders would have been forced to divert resources to attack the death camps.

At the same time, Bass makes clear that, as much as the human-rights movement wishes it were otherwise, the prosecution of war criminals is not an absolute carried out in accordance with universal standards. However, he does not deal with the question of whether existing standards should be compromised or negotiated away in order to produce settlements that can save hundreds of thousands of lives or improve the observance of human rights in a particular country.

As someone who works in the field of conflict resolution, I favor negotiated settlements. In today's world it is extremely unlikely that the United States and other countries would be willing to wage war to the point of unconditional surrender. Therefore, it is virtually impossible to force from power human rights abusers--like Milosevic, Pinochet, and Saddam Hussein. The only way such people ever agree to step down is through a negotiated agreement that includes amnesty for their crimes. Such an agreement was, in fact, the means by which Pinochet gave up control. He made what was considered a binding agreement, within the Chilean legal framework. That agreement was later, in effect, ignored by a Spanish magistrate and the British courts, citing international human rights standards.

I question whether the application of such standards should be superior to all other considerations. There are times when the only way to get a human rights abuser out of power or to save lives is to negotiate deals with people who have committed atrocities. If such deals are not considered binding by the international community and can be overruled by a judge in a faraway country, it will become virtually impossible to bring an end to many conflicts. If the Pinochet precedent were extended, could not the carefully negotiated South African agreements that brought an end to apartheid and set up the Truth and Reconciliation Commission be negated by a foreign court? Or, what choice would a Milosevic have but to stay in power, if he knows that any arrangement by which he might agree to Step down will have no force.

I do not dispute that Milosevic has been guilty of crimes against humanity. I only ask: Would not the greater good be served by negotiating him out of power and, as part of the bargain, guaranteeing him a safe haven?

JOHN MARKS is founder and president of Search for Common Ground in Washington and the European Centre for Common Ground in Brussels.