SHULMAN: The Nuremberg trials have been criticized as being a victor’s justice. Can all war-crimes tribunals and truth commissions be described this way?
MINOW: Victor’s justice is not an entirely inappropriate way to frame the Nuremberg trials. But it’s important to remember that the trials there grew out of a negotiation among the Allies. Initially, both Churchill and Stalin wanted immediate executions for the Nazi leaders. The United States was instrumental in creating the consensus that the peace, and the trials, had to reflect the principles for which the Allies had gone to war. Yet Nuremberg also serves as a sort of institutional prototype, as a model for a transnational justice that takes place above and beyond the policies and practices of any particular nationality.
What happens when national and international systems of justice clash?
This is one of the paradoxes inherent in these processes. It’s especially evident in Rwanda, where the international tribunal is proceeding alongside the domestic tribunal. Trying to follow the rule of law, the international tribunal proceeds very slowly. It has no death penalty. The domestic tribunal is proceeding quickly with very public death penalties that are then condemned by human-rights activists. In addition, it is releasing people because there is not enough room in prisons. I think that the current regime in Rwanda is so desperate to establish that it is doing something that it may be throwing the rule of law out the window. Yet this is a country with fewer than 50 lawyers, with almost no fax or copying machines. Where the cost of keeping people in prisons exceeds that which is spent on housing. The problem in Rwanda is as much a lack of resources as it is an unstable legal framework.
What about the massacres in Bosnia and, more recently, in Kosovo? Why has there been such little progress in bringing war criminals to justice there?
These situations differ markedly from World War II, because there is no end of the war. In the former Yugoslavia, we have an ongoing armed struggle. There is no point from which decisions can be made about what to do about the past, because the past is still the present there.
What about the Pinochet case? Should heads of state be immune from prosecution for crimes against humanity?
Even though it was set aside due to a perceived conflict of interest, the House of Lords’ initial decision to extradite Pinochet has already altered his fate, along with those of others in his situation. He will never again have the kind of immunity and impunity that he once enjoyed. My own sense is that crimes against humanity are precisely the crimes for which head-of-state immunity should not apply: if these crimes are of the kind that are ordered by a government, they are inevitably going to be ordered by heads of state. But more importantly, the posture of this case is a poignant argument for the need for an international mechanism. There are just too many reasons why any given nation may feel that it cannot address its own past. There has to be some mechanism that is available outside domestic politics.
Is there any evidence that the culture of human rights and international justice is taking root in countries that have suffered mass violence and genocide?
The recent developments in Cambodia are a stunning demonstration that the culture of human rights has penetrated that country. Two men appear and admit that they were deeply involved in [Khmer Rouge] plans for genocide. The current leader of the government says that the past is the past and that these men should be forgiven. But this created a public outcry, from outside but even more from inside Cambodia. Ordinary people living in an extraordinarily difficult situation are demanding that something else be done, that there be some sort of justice. This is a very real sign that something important has changed.
Can truth and reconciliation commissions deter mass violence in the future?
So far, unfortunately, I think the answer is no. We still have horrific outbreaks of violence. Truth commissions may alter bystander behavior, though, and create a climate where bystanders will no longer be bystanders. If I have a hope, it is that structures like truth and reconciliation commissions provide rebuilding countries with a valid alternative to prosecution. Then prosecution will no longer be seen as the sole institutional response to mass violation of human rights. Because for many countries, when they are faced with the choice between prosecution or nothing, nothing can look pretty good.
