An ABF Update S - American Bar Foundation · American Bar Foundation An ABF Update Volume 17, Number 4, Fall 2006 Expanding Knowledge, ... Senior Research Fellow Bonnie Honig has

American Bar Foundation An ABF Update Volume 17, Number 4, Fall 2006

Expanding Knowledge, Advancing Justice

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THE SARAJEVOSURVEYS

Citizen Perceptionsof International

(In)Justice

InsideDISCRETION AND DUEPROCESSLouis Post and Alien RightsDuring the First Red Scare

ABF SUMMER DIVERSITYFELLOWSHIP PROGRAM

Senior Research Fellow JohnHagan conducted apathbreaking study of the

International Tribunal for theFormer Yugoslavia (ICTY) andreported on it in a recent book,Justice in the Balkans: Prosecuting WarCriminals in The Hague Tribunal(University of Chicago Press, 2003).Now, he and his collaborator,Professor Sanja Kutnjak Ivkovi ,have taken a second look at thisinternational court from anothervantage point—through the eyes ofthe citizens of Sarajevo whoendured years of relentless attacksthat killed or injured thousands ofthe city’s residents. Drawing onsurveys conducted in 2000 and2003, Hagan and Ivkovi found thatthe citizens of Sarajevo haveincreasingly come to distrust theICTY and have begun to embracethe idea of using local courts tomete out justice for those accused ofcrimes against humanity.

Even against the backdrop of theNuremberg trials at the end ofWorld War II, neither the SovietUnion nor the United Statesshowed much enthusiasm forinternational criminal law duringthe Cold War. It was not until afterthe demise of the Soviet Union inthe early 1990s that interest ininternational criminal justice wasformally renewed, signaled by thecreation of the InternationalTribunal for the Former Yugoslavia.Prompted by the war in the formerYugoslavia, including the drive toestablish a Greater Serbia, the siegeof Sarajevo, and the massacre inSrebrenica, the ICTY was estab-lished by the United Nations

Security Council in 1993. Althoughinitially dismissed in the Europeanpress “as a fig leaf for militaryinaction,” this tribunal, whichenjoyed periods of support fromthe Clinton Administration,became a flagship UN institution.At its peak it employed more than1000 employees from 84 countries,with an annual budget of $100million, and had detained morethan 40 suspects, including the lateformer head of state SlobodanMilosevic, on charges of crimesagainst humanity and genocide.Prodded by the Bush Administra-tion, the ICTY has developed a“completion strategy” that willlead to its eventual closure. It endedinvestigations in 2004 and hasindicated that trials will be fin-ished by 2008, at which timeremaining cases will be transferredto the jurisdiction of courts estab-lished in the newly independentstates of the former Yugoslavia.

“Little is known about theimpact on citizen perceptions ofthis historic institution of interna-tional law in the war crime set-tings—such as Bosnia and itsbesieged city of Sarajevo—wherethe ICTY seeks to restore a sense ofjustice for citizens,” the authorspoint out. The first three prosecu-tors of the ICTY are strong advo-cates for the primary jurisdiction ofthe ICTY over war crimes in theBalkans and for subsequent inter-national criminal courts, insistingthat a jurisdiction that supercedesthe sovereignty of nation-states isoften essential to assure securityand independence in the quest forinternational criminal justice. The

John Hagan

2 RESEARCHING LAW VOLUME 17 NUMBER 4 FALL 2006

Debates about how to ensurenational security andprotect individual rights

figure prominently in the contem-porary political milieu. But theconflicts that arise when pursuingthese objectives are not unique tothe current war on terrorism.Senior Research Fellow BonnieHonig has explored the tensionbetween national security and dueprocess during the First Red Scare.Her insightful analysis reveals howone, now largely forgotten, civilservant—Louis F. Post—used hisadministrative discretionarypowers to secure crucial dueprocess rights for noncitizens. Todo so, Post had to interpret dueprocess in very broad and contro-versial terms. Drawing on thischronicle, Honig argues that law isnot in and of itself inclusive andprogressive. It depends on humanactions to reach its full potential.

During emergencies, governmen-tal power and prerogative aretypically expanded. “Emergencypolitics occasion the creation ofnew administrative powers andthe redistribution of existingpowers of government fromproceduralized processes todiscretionary decision, from themore proceduralized domains ofcourts to the more discretionarydomains of administrative agency,”Honig observes. Critics of suchexpansion tend to appeal to courtsto contest the broadening ofexecutive power. In the UnitedStates since September 11, 2001, thestrategy has been somewhateffective: courts have blockedinitiatives of the Justice Depart-ment that elevated national secu-rity needs above individual rightsto due process. “But more oftenthan not, court interventions intimes of emergency have littleimpact on the expanded exercise ofstate power,” Honig points out.Courts, especially the SupremeCourt, often defer to the executivebranch in times of crisis. Thisdeference is unusual in the Ameri-

can context. Since courts do notnormally defer, their willingness todo so in the grip of a national crisishas prompted liberal and legaltheorists to brand emergencypolitics as exceptional, or “the stateof exception.” “’The state of excep-tion’ is a condition in which ordi-nary law is legally suspended andsovereign power operates unfet-tered, by way of decision.”

Political theorists tend toassociate this type of executivebranch decision-making with thesort of powers exercised by a singleunaccountable dictator. But theexample of Louis Post suggests adifferent take on administrativedecision-making. Highlighted hereis the role played by discretion, akind of decisionism that exceeds therules in ways that might work onbehalf of ordinary due process, notagainst it, and in ordinary times,not just in crisis. Once we see theaffinities between emergencydecisionism and more ordinarypractice of discretion, emergencypolitics emerges from itsexceptionalist setting and joins thecontext of larger struggles overgovernance that have markedliberal democracy in the U.S.setting for more than a century.Debates about security versusrights in emergencies actually are asubset of “larger debates about therisks and benefits to democracies,in emergency as well as nonemer-gency settings, of administrativeversus judicial power, rule of manversus rule of law, efficiency versusfairness, speedy versus fullydeliberative decision making,outcome versus process orienta-tions, and secrecy versus transpar-ency or publicity.” In short, fixatingon the security versus rightsdimension draws attention awayfrom a more fundamental issue:“the (re)distribution of governingpowers and the mechanisms bywhich they may and may not beheld accountable.” While thejockeying between administrativeand judicial governance is most

DISCRETIONAND

DUE PROCESSLouis Post and

Alien Rights duringthe First Red Scare

Bonnie Honig

VOLUME 17 NUMBER 4 FALL 2006 RESEARCHING LAW 3

visible in times of crisis, such asthose involving national securityand immigration politics, the toand fro is not itself exceptional. It ispart of an ongoing process in whichbureaucrats, political administra-tors, judges, lawyers, and citizensvie for power.

Critics of administrative discre-tion and civil libertarians fre-quently respond to attempts by theexecutive branch to expand theirpower by rejudicializing theterrain. They may turn to courts tocontest the transfer of decision sitesfrom judicial settings to adminis-

processes versus administrativediscretion” will not unfailinglysecure protection for human rightsand the dissenting politics they aremeant to protect. To illustrate thispoint and to identify anotheroption, Honig chronicles theactivities of Louis F. Post, assistantsecretary of the Department ofLabor during the First Red Scare.Because he fought for proceduralrights and due process, he is oftenlauded as a principled procedura-list who foreshadowed later Courtrulings on the rights of noncitizens.But Post was no mere procedura-list, Honig points out. “For Post, achampion of proceduralism in1919–1920, proceduralism was nota good in itself—it was simply oneof law’s many mechanisms, amechanism whereby all sorts ofpolitical aims could be pursued.”

The First Red ScareIn April of 1919, a homemade mailbomb arrived at the office of Seattlemayor, Ole Hanson, who hadrecently quashed a strike byshipyard workers, and anotherbomb arrived at the home of aformer Senator and maimed theperson who opened the package.Postal authorities located thirty-two other bomb packages beforethey were delivered. (Several hadbeen held back for insufficientpostage, an oversight that stalledsome of the 2001 anthrax mailingsas well). Among the intendedrecipients were governmentofficials and judges who opposedorganized labor and favoredrestrictions on immigration but thetargets also included officials withmore liberal leanings.

Six weeks later a new series ofbombs exploded in eight differentcities at the same hour. Althoughthere had been previous isolatedbombings by self-proclaimedanarchists, this coordinated attackproduced a “frenzy of fear” in theAmerican populace. The JusticeDept. and the immigration bureau,under the leadership of Attorney

1918. Post was outraged by thearbitrariness of these actions andwas poised to defend the rights ofthe foreign born when the opportu-nity arose.

Until 1920 John W. Abercrombie,solicitor general of the Departmentof Labor, and Anthony J. Caminetti,the Commissioner of Immigration,worked in tandem on deportationmatters, “even going so far as toissue five thousand blank deporta-tion warrants for use by Palmer’sagents.” When Abercrombie left theLabor Department to run for theSenate, Post, himself a Wilsonappointee in the Labor Dept., haltedthe cooperative arrangement withthe Immigration Bureau. “Taking

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General A. Mitchell Palmer and ayoung J. Edgar Hoover (head ofPalmer’s Intelligence Division,)among others, sprang into action.These and other powerful officials“sought in wholesale deportationsa solution to the anarchist threatand the problem of dissident actionin the United States.” From late1919 to early 1920, in a series ofmaneuvers known as the Palmerraids, 5,000 to 10,000 aliens wereapprehended and slated for depor-tation under the Sedition Act of

In April of 1919, ahomemade mailbomb arrived at theoffice of Seattlemayor, Ole Hanson,who had recentlyquashed a strike byshipyard workers,and another bombarrived at the homeof a former Senatorand maimed theperson who openedthe package

trative arenas, and they may also“press for the expandedjudicialization of nonjudicial sitesby, for example, claiming thatpeople have procedural rights ofdue process even in nonjudicialsettings.” But history has shownthat there are no guarantees thesemaneuvers will work, given thetendency of courts to defer to theexecutive branch in times ofemergency. So merely participatingin the “to and fro of judicialized

From late 1919 toearly 1920, in aseries of maneuversknown as thePalmer raids, 5,000to 10,000 alienswere apprehendedand slated fordeportation underthe Sedition Act of1918

Discretion and Due Processcontinued from page 3

advantage of the language of theSedition Act that created theDepartment of Labor, Post usurped,in accordance with the law, the defacto power of the Commissioner ofImmigration to decide the fate ofdetained aliens,” Honig reports.

As soon as he claimed jurisdic-tion and the power of decision, Postbegan to narrow the categories ofdeportability. He first persuadedLabor Secretary William B. Wilsonto rule that membership in theCommunist Labor Party was not adeportable offense. He pointed outthat the Communist Labor Partywas more moderate than theCommunist Party of America,which was the only entity that didnot disavow the use of violence. Soit could only be membership in the

both subject to deportation.

Post’s second step was to assertthat what he called “automaticmembership” was not grounds fordeportation. Under the automaticmembership guideline, a personwas assumed to be a member of theCommunist Party if his or hername appeared on their rolls. Butthe party was known to pad itsrolls and include inactive or unpaidformer members as well as mem-bers of related but nonidenticalorganizations. Post insisted thatpeople could not be deportedsimply because their name was ona list. “Some evidence had to beshown that the person in questionconsented explicitly to membershipin the outlawed party,” a require-ment that substantially raised theevidentiary bar.

His third step was the mostradical departure. Post appliedstandards of evidence and dueprocess, normally used at the timeonly in judicial settings, to admin-istrative cases. Since deportationwas not a criminal proceeding andthe detainees were not citizens, theAttorney General and otherofficials claimed that such constitu-tional guarantees as the right tocounsel, to confront one’s accuser,and habeas corpus were notapplicable. Post disagreed andrepeatedly asserted that “protec-tions traditionally thought of asattached to criminal investigationsshould apply also to administra-tive processes if not as a matter oflaw then simply as a matter offairness.” Administrative matters,including deportation, must befairly administered, Post argued,and so it was logical to follow theexisting rules and regulations thatin other venues served as proxiesfor fairness. “In short, Post boundhimself by law,” Honig points out.He repeatedly used “his discretion-ary powers to limit his discretion-ary powers.” Post ruled, for ex-ample, that aliens’ self-incriminat-ing statements could not be usedagainst them if the statements had

been made without legal counsel.

Further, Post drew on his ownpowers of reasoning and all theresources offered by the law to find,whenever possible, in favor ofaliens facing deportation. Hedistinguished between politicaland philosophical anarchism,finding only the former actionableunder law. He was also inclined tosecond-guess the self-incriminatingstatements of detainees. In the caseof one alien who stated that he wasa communist anarchist, Postexplained to the alien that his ownline of reasoning (in which heconceded that government wasnecessary to care for the poor)meant that he was not an anarchistwithin the meaning of the law. Postpointed out that on further reading


Post repeatedlyasserted thatprotectionstraditionally thoughtof as attached tocriminalinvestigations shouldapply also toadministrativeprocesses if not as amatter of law thensimply as a matter offairness

Communist Party of America thatwas a deportable offense. Thisposition stood in sharp contrast tothat of J. Edgar Hoover who sawboth groups as dedicated to theoverthrow of the U.S. governmentand whose members were there-fore, Hoover had argued in a memo,

By the spring of1920 Post hadcanceled thewarrants of almostall theapprehended aliensand released them

of the interview with the detainee:“I found…his meaning of the worddid not tally with the definitions ofanarchism as anyone who hasinvestigated the subject knows;and because it did not tally, I cameto the conclusion that he was aman in favor of government andnot opposed to government andthat determined the case…. Idecided to cancel [the warrant]because he was not an anarchistwithin the meaning of the law.”

“Post used the law and the ruleof law’s procedural requirements tocreate technicalities that wouldundo or counteract the SeditionAct’s intended and unintendedeffects,” Honig notes. In this way

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Post and two assistants, workingten-hour days and deciding asmany as 100 cases a day were ableto free between 2,000 and 6,000detainees (estimates vary.) By thespring of 1920 Post had canceledthe warrants of almost all theapprehended aliens and releasedthem. Palmer was livid, chargingthat Post was abusing his discre-tionary power and demanding thathe be fired for his “tender solicitudefor social revolution.”

Post was not fired but he wascalled before the House Committeeon Rules to respond to Palmer’scharges. In the minds of the publicand the members of the Committee,Post seemed to be freeing alienswho had been found guilty whenhe canceled a deportation warrant.Post offered a counter-argument.He pointed out that a warrant(which was all Palmer and Hoovercould issue) was simply a charge,not a finding. It began the processof investigation, rather thansignaling the end of one. The publicseemed to accept this explanation.“The Committee was not so quicklywon over, though, and moved totake issue with Post’s most radicalinvention: the rules under whichPost decided the cases of thecharged aliens.”

A Proxy for FairnessPost’s decision to exercise discre-tion in applying the more rigorousrules governing criminal proceed-ings to an administrative proce-dure was the central focus duringhis appearance before the Commit-tee on Rules. During his testimony,Post defended the approach he hadtaken:

My contention is that whenthe executive department ofthe Government is the abso-lute judge of whether a manshall remain in this countryor not, and the courts will notinterfere, we should see to itthat no injustice is done tothat man…. And that is thereason…the protections of

asserting that he was adheringstrictly to the law but that hisopponents were arbitrarians whooperated under a cloak of pseudo-legality. His ultimate success woulddepend largely on “whether Post’suse of technicality would persuadeor enrage the public and membersof the House Committee on Rules,”Honig notes.

The Politics of TechnicalityLaw depends on interpretation,Honig points out. Without inter-pretation, law cannot be sensitiveto particularity and nuance. “Suchsensitivity, however, can lead to thecreation of technicalities, which are

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criminal law ought to beaccorded; yet I know wecannot accord them ascriminal law. But I can takefrom the criminal law itshumane, its just, its Ameri-can, its constitutional prin-ciples of protection to theliberty of the citizen andapply it when I am acting forthe executive department ofthe Government.

Post further pointed out that thecore issue was not whether thosewho violate the law will be de-ported because they would be, “butwhether those who have notviolated the law shall be deported.”Deploying procedures used incriminal cases as a proxy forfairness would help insure thatonly the “guilty” would be de-ported.

Palmer and Hoover had labeledPost “an arbitrary, untrustworthyadministrator whose aim was toundo the law,” while they por-trayed themselves as servants ofthe law, “operating in adherence tothe requirements of the SeditionAct and the will of the legislatorswho passed it”. Post responded by

In Post’s hands,technicality was usedto serve laudableobjectives thatcoincided in thisinstance with thelarger goals of therule of law: theprotection ofvulnerableindividuals fromarbitrary statepower

products of law’s nuances.” Yettechnicalities seem to corrupt thebasic premises of the rule of lawbecause they are rarely public, tendto be discovered post hoc, and oftenapply only to an individual case. Inpopular discourse, and as playedout in television dramas, the termtechnicality connotes a subversionof the law, as in “he got off on atechnicality.” But “technicality isreally a neutral device by way ofwhich many different agendas canbe served,” Honig argues. In Post’shands, technicality was used toserve laudable objectives thatcoincided in this instance “with the

existence apart from his own con-testable administrative rulings,bound him.” On its own, the rule oflaw did not mandate that outcome.In the course of his appearancebefore the House Committee, Postwas asked if he realized that therules he had laid down made itmore difficult to deport aliens. Postactually embraced the impliedcriticism in his response, Honigobserves. As he stated, “Every rulein the interest of personal libertymakes it more difficult to takepersonal liberty away from a manwho is entitled to his liberty.” Thisentitlement, guaranteed here byone man’s discretionary power and“further legitimated by the deviceof technicality, was the check usedby one executive agency to forceitself as well as other loci of execu-tive power to pause and behumbled.”

Post’s assignment of rights toaliens undoubtedly garnered moresupport when it was disclosed thatonly four firearms and reams ofpropaganda pamphlets were foundin the possession of the 4,000supposedly violent anarchists whowere arrested. The coordinatedbombings of 1919 were real andinduced genuine fear in mostAmericans. But concerns aboutnetworks of anarchists standingready to attack the United Stateswere diminishing “in the face oflittle evidence to support them andin the face of doubts, prompted andfed by Post and his supporters,regarding the arbitrary adminis-trative powers used by the JusticeDepartment to fight those spec-ters.”

Many historians suggest that,the First Red Scare ended when thecountry “chose hedonism overpolitics” with the advent of theRoaring Twenties. But, Honigpoints out, it could just as well besaid that the era ended when thecountry and the CongressionalCommittee “chose democracy overdespotism and fairness over

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arbitrariness in the exercise ofgovernmental power.” The Com-mittee on Rules supported Post.Palmer’s ambitions to run for thePresidency were thwarted when hetestified much less effectively thanPost before the Committee a fewweeks later. But J. Edgar Hoover“survived and went on to thrive.”At the time Post was 71 years oldand Hoover just 24. For the nexthalf century Hoover would go on toperfect the policing and surveil-lance techniques he first developedas head of Attorney GeneralPalmer’s antiradical division.When he assumed the directorshipof the FBI in 1924, Hoover was ableto institutionalize his techniques“and the emergency perspectivethat animated them.” In contrast,Post died just five years later andhis initiatives were never institu-tionalized, Honig reports. Theydisappeared from the Departmentof Labor when President Wilsonleft office and Post departed justmonths after the hearings. It isironic, Honig notes, that the manwho stood up boldly for the rule oflaw never succeeded in institution-alizing his ideals so they couldoperate in his absence while theman who championed discretion-ary executive power was able tocreate an institution that would formany decades exercise powerarbitrarily, “in ways consistentwith his own personal, oftenparanoid, vision.”

But casting Post as hero andHoover as villain is not the entirestory. What is significant abouttheir roles is that they personify“twin impulses in Americanpolitical culture that may be inconflict, but nonetheless togetherdrive our national responses toemergencies (real or imagined.)”These impulses include elementsthat are in favor of both discretion-ary power and proceduralism andembrace both a centralized power-ful executive and “fractured ordivided and chastened sover-


larger goals of the rule of law: theprotection of vulnerable individu-als from arbitrary state power.”

Moreover, Honig points out,those broader objectives could nothave been achieved by the rule oflaw per se. “It needed to be supple-mented…by the humor, cleverness,idealism, humanism, prerogative,and administrative decision thatPost…brought to the rule of lawand on behalf of which he pressedthe rule of law into service.” Postused his administrative powers togrant rights to the aliens that theydid not have juridically at thattime. He then “acted as if theserights, which had no juridical

The rule of lawdepends upon thevery human agency(discretion) thatmany of the rule oflaw’s proponentsare committed todisabling


Bush Administration has expresseddoubts about the wisdom of such acourse, “insisting whenever andwherever possible that nationalcourts, as in Iraq, retain jurisdic-tion.”

The new International CriminalCourt, as set out in the 1998 RomeTreaty that fashioned it, rejectedprimary jurisdiction in favor ofcomplementary jurisdiction, which“cedes control over cases to domes-tic courts unless there is a clearfailure or inability of nationalcourts to prosecute their cases.”This type of negotiated consensuspresents challenges as the actualpractice of international criminallaw at the ICTY demonstrates, theauthors point out. The institutionhad to deal with the recalcitrantstates of the former Yugoslavia andthe expectations of the victims ofwar crimes and concerned citizensin the new configuration of inde-pendent states. “It is easier totheorize a consensual foundation tointernational criminal justice whenthe focus is on negotiations be-tween elite officials of legal institu-tions than when attention is givento the views of the civilian con-stituencies that these institutionsand their elites are expected toserve.” What played out in theICTY in its “increasingly contestedefforts” to bring justice to Sarajevois more consistent with a conflict,rather than a consensus, theory oflegal institutions, the authorsobserve. To provide a frameworkfor their analysis of Sarajevans’evaluations of the ICTY, the authorsconsider the politics of punishingwar crimes and the events sur-rounding the siege of Sarajevo.

The Politics of PunishingWar CrimesLiberal legalism is the school ofthought and legal movement thatsupports the creation of interna-tional institutions of criminal law.It promotes the noncontroversialobjectives of procedural fairness

eignty.” The continuing problem ishow to achieve a balance betweenthese conflicting impulses. Yet thecontemporary political scene istilted toward the impulses associ-ated with Hoover and not thoseexemplified by Post, Honig argues.“We are left, in short, with only theshadows of the rights for whichPost fought.”Admittedly, some ofthose rights are now “more firmlyenshrined juridically,” and this hasbeen perceived as significantprogress. “But these rights are notlodged in anything like what Posthad—a visionary counter-politicsthat sought to stand up to execu-tive power over-reachings in thesettings of everyday as well asemergency politics.”

Law and Human AgencyFor those who champion thejudicialization of procedure, “ therule of law, which is identified withlaw-disciplined judges, norm-bearing lawyers or legal elites, andrights-bearing clients, is juxta-posed to the rule of man, whichrepresents arbitrary power exer-cised over rightless persons byunaccountable administratorswith too much discretion and afocus on efficient outcomes, notjustice.” But the rule of law as agovernance mechanism requiresboth judicial and administrativepower, Honig points out. To draw aclear distinction between the two ismisleading. It is true, she notes,that people have access to abroader menu of procedural rightsand protections in judicial arenasthan administrative ones but thetendency to idealize courts ob-scures the fact that “administra-tors can be nuanced, careful, andeven self-limiting, while judges canbe brutal, ambitious, and over-reaching….” In addition, publicadministrators (especially theProgressives), as well as judicialactors, can be guided by ideals andnorms not just personal prefer-ences or agendas.

More to the point, attempts toinsulate law from administrativerenderings may actually “contrib-ute to law’s undoing,” Honigargues. “The rule of law dependsupon…the very human agency(discretion) that many of the rule oflaw’s proponents are committed todisabling…for the sake of theequity, regularity, and predictabil-ity that the rule of law is said torequire and deliver.” To recapturelaw’s human-agency dimension,liberal democratic regimes needanother way to think about theartificial demarcation, Honigargues. “Perhaps somewherebetween the rule of law and therule of man, or on the terrain oftheir jurisdictional struggle, wemight, together with Louis Post,find or enact the rule of men orpeople: plural and riven,plainspoken and arcanely techni-cal, lawlike and lawless, all at thesame time.”

Honig reports on this research in“Bound by Law? Alien Rights,Administrative Discretion, and thePolitics of Technicality: Lessonsfrom Louis Post and the First RedScare,” in A. Sarat, L. Douglas, & M.Umphrey, eds., The Limits of Law(Amherst Series in Law, Jurisprudence,and Social Thought) (Stanford Uni-versity Press, 2005).

In addition to her affiliation with theABF, Bonnie Honig is Professor ofPolitical Science and Director of theCenter for Law, Culture, and SocialThought, Northwestern University.

Sarajevo Surveyscontinued from page 1



and due process, but conflicts arenonetheless inherent in the processof creating an international forum.International legal liberalism ismost provocative when it assertsprimary jurisdiction in the protec-tion of human rights and againstwar crimes, the authors observe.“Enforcement of this expansivejurisdiction often places interna-tional criminal law in conflict withnorms and claims of sovereignimmunity.” Slobodan Milosevicoften alluded to this violation ofimmunity, calling the ICTY a “false

sentences imposed by internationalbodies on convicted offenders. TheICTY has often emphasized deter-rence as the guiding factor indetermining the duration ofsentences. Yet the victims of thecrimes may be more concernedwith punishing the offenders andexacting retribution.

The liberal legalism of interna-tional criminal law is also inti-mately tied to the conflicts associ-ated with its institutional politics.“The creation of the ICTY was itselfcriticized for its origin in thenarrow membership of the UNSecurity Council rather than itsmore diverse and representativeGeneral Assembly,” the authorsnote. Selection of the first ICTY chiefprosecutor as well as its judgeswas “also a highly politicizedprocess that required balancing awide range of international inter-ests and demands for representa-tion.” All these conflicts may wellsurface in Sarajevo now, “with itsown recent history of atrocities,and where a new War CrimesChamber of the State Court isbeginning its work.” To understandthe impetus for this effort, “it isimportant to appreciate the essen-tials of the siege of Sarajevo and theICTY’s response to it,” the authorspoint out.

The Siege of SarajevoThe siege of Sarajevo lasted nearlyfour years, from spring 1992 to latefall 1995, and claimed the lives ofthousands of soldiers and civilians,with countless others injuredphysically and/or psychologically,”the authors observe. No place inthe city was safe as the civilianpopulation of Sarajevo endured asystematic campaign of sniping,artillery, and mortar attacks thatthreatened not only death but thebasic necessities of life—food,water, hygiene, heat, heath care,sleep. These attacks were ulti-mately deemed to be crimes againsthumanity by the ICTY, but someten years elapsed between the firstinvestigatory steps and a verdictagainst the Bosnian Serb general

held responsible for the infliction ofinhumane acts.

In 1993 a Commission of Expertswas appointed by the UN SecurityCouncil to collect evidence andmake recommendations. Investiga-tors were sent to Sarajevo to“assess the possibility of framingwar crimes indictments around thelaw of armed conflict.” The Com-mission ultimately concluded thata compelling case could be madethat civilians had been systemati-cally targeted. But when the Chiefof the Commission of Experts,Cherif Bassiouni, proposed in 1994to begin work immediately withthe ICTY to prepare a case for theindictment of three Bosnian Serbgenerals for the siege of Sarjevo, hereceived no response. Bassiouni’ssubsequent failure to secureappointment as the first ICTY chiefprosecutor was attributed in partto a perception that he would“move too quickly to charge Serband possibly Croatian leaders withwar crimes.”

The siege ofSarajevo lastednearly four years,from spring 1992 tolate fall 1995, andclaimed the lives ofthousands of soldiersand civilians, withcountless othersinjured physicallyand/orpsychologically

tribunal.” Victims of human rightscrimes may also invoke sover-eignty rights when they demandthat perpetrators of war crimes betried in their own national courts.

Because war crimes are oftenignited by ethnic and nationalhostility, legal attempts to addressthese disputes can be seen asprejudicial and discriminatory. TheICTY is viewed in some quarters asan Anglo-American legal justifica-tion for NATO’s intervention in theformer Yugoslavia and “thereforeas inherently biased against theSerbs.” Another source of conflictarises from the length of the

By 2003 support forthe ICTY haddeclinedsignificantly, withless than half therespondentsselecting theinternational forum,both in general andin five specific cases

It was not until 1999 that theICTY formally indicted MajorGeneral Stanislav Galic for “havingconducted…a campaign of snipingand shelling attacks on the civilianpopulation of Sarajevo, causingdeath and injury to civilians, withthe primary purpose of spreadingterror among the civilian popula-tion.” Nine months later Galic was

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arrested by British commandosand taken to The Hague to standtrial. In 2003 Galic was finallyconvicted of spreading terror andcrimes against humanity and wassentenced to 20 years imprison-ment. The majority of the judges onthe ICTY Trial Chamber alsoconcluded that General Galic wasnot simply kept informed of thecrimes of his subordinates but“actually controlled the pace andscale of those crimes.” In thesurveys conducted in Sarajevo, theresidents revealed that they agreedwith the gravity of Galic’s actionsbut questioned the leniency of a 20-year sentence. For its part, thetribunal emphasizes that itsdecisions reflect judgments aboutindividual responsibility but theICTY also wants its decisions to“carry a larger symbolic meaningto the community of victims andpotential perpetrators beyond theimmediate case, and in these waysthey have important collectiveimplications.”

including Milosevic and Galic.Respondents were also invited torespond to open-ended questions atthe end of the 2003 survey, and 15%did so.

The surveys were designed toelicit the respondents’ views aboutthe prospect of trying cases at theICTY or in local courts. The optionof a local court taking jurisdictionwas more remote in 2000 than it

sampling frames” the authorsreport. So respondents wereenlisted in coffee shops and storesin the central business district ofSarajevo. The same person con-ducted interviews with 299 re-spondents in 2000 and 473 respon-dents in 2003. In both surveysmales comprised slightly morethan half of the sample, and all agegroups were represented. Thepercentage of respondents who hadattended or graduated from collegewas similar in both surveys—about 50 percent—but this propor-tion was significantly higher thanthe educational distribution foundin Sarajevo where 18.6% have acollege degree and 7.2% haveattended college. “Nonetheless, theresults of our multivariate modelsshow no effect of the respondents’education on the opinions aboutthe ICTY and its decisions,” theauthors note.

The respondents in both surveyswere predominantly Muslim, as isSarajevo where Muslims constituteabout 70% of the population.Croats were slightly overrepre-sented and Serbs were proportion-ate to their presence in the popula-tion. To gauge what effect victim-ization might have on perceptionsof the ICTY, respondents wereasked about their direct experiencewith war crimes. More than sevenof every ten participants reportedthemselves to be victims of crimesagainst humanity. About seven often respondents also indicated thatthey had witnessed such crimes,and some nine of every ten respon-dents reported the victimization ofa family member or close friend.Almost all respondents reportedthe victimization of acquaintancesor neighbors.

The participants were asked aseries of questions about the ICTYand its processes and decisions thatranged from the general–thefairness of the ICTY’s decisions inthe abstract—to the specific—thefairness of the ICTY in a particularcase. The specific questions focusedon seven indictees/defendants,

In 2000 some 83% ofrespondentsbelieved that theICTY judges wereindependent; just47% held this view in2003

Surveying SarajevansTo assess how the ICTY and itsdecisions are perceived, twosurveys were conducted inSarajevo in early summer 2000 andin December 2003. The surveyswere timed to reflect the impact ofsignificant events—the 2000 surveytook place soon after the arrest ofGalic and his transfer to the ICTY,and he was sentenced just beforethe 2003 survey. “Neither tele-phone nor household sources ofinformation were sufficientlydeveloped to establish unbiased

Rankings of fairnessof procedures anddecisions of the ICTYmake it clear that itwas the decliningapproval ofdecisions (from 88%to 30%) rather thanof procedures (93%to 77%) that wasmost at issue

was in 2003, by which time plan-ning had begun for construction ofa new War Crimes Chamber of theState Court of Bosnia andHerzegovina to be located inSarajevo. In 2000 more than three-quarters of the Sarajevo respon-dents favored the ICTY as theappropriate jurisdiction, both ingeneral and for three specific cases.By 2003 support for the ICTY haddeclined significantly, with lessthan half the respondents selectingthe international forum, both ingeneral and in five specific cases.Just three years after the initialsurvey, “the Sarajevo respondentswere about evenly split betweenbetween choosing the ICTY and thelocal courts as the appropriatejurisdiction….”

The reduction in the Muslimcomposition of the sample from 80percent in 2000 to about two-thirdsin 2003 was considered as a pos-


10 RESEARCHING LAW VOLUME 17 NUMBER 4 FALL2006

sible explanation for the decline insupport of the ICTY, the authorsnote. But the analysis revealed that“Muslims, Croats, and Serbs didnot significantly differ in theirjurisdictional choices.” In addition,the experience of greater warcrimes victimization was alsounrelated to jurisdictional prefer-ences.

Perceptions of InjusticeThe survey data indicate that “thechanging perception of the ICTY

fueled by respondents’ beliefs aboutthe goals that should be pursued insentencing. While the ICTY wasincreasingly articulating anemphasis on deterrence in deter-mining how cases would bedisposed, the Sarajevo respondentsdid not agree with this objective.“[N]early three quarters ultimatelysaw retribution as the majorpurpose of punishing war crimi-nals ... while deterrence wassubsequently endorsed by aboutone-quarter….” The respondentsalso became more disillusionedwith the fairness of the ICTY, butthis discontent was directed at theoutcomes. “Rankings of fairness ofprocedures and decisions of theICTY…make it clear that it was thedeclining approval of decisions(from 88% to 30%) rather than ofprocedures (93% to 77%) that wasmost at issue.”

The Sarajevo respondents’attention to fairness extended to aconcern for defendants’ rights.Eight identified rights of defendantsreceived scores of above five on aone-to-ten scale. Moreover, in thesecond survey, the following rightswere scored as being of signifi-cantly greater importance than inthe first survey: to have an attor-ney, remain silent, present adefense, propose witnesses, andhave an impartial judge.

The ICTY’s Rules of Procedureand Evidence allow plea bargain-ing. But only 6% of the Sarajevansapproved of the use of plea bar-gaining. Opposition to plea bar-gaining was strongly influenced bythe defendant’s position in themilitary chain of command. Onerespondent wrote that “the higherthe war criminal was in thehierarchy, the more limited theopportunity to plea bargain shouldbe. Therefore, there should be noplea bargaining for Milosevic.” Pleabargaining was also seen as linkedto lenient punishment, a conse-quence “that clearly disappointedthe respondents.”

To better understand the relativerole of the various factors driving

Sarajevans’perceptions ofinjustice at the ICTYwere fueled byfeelings that thesentencing of Galicwas too lenient, thatICTY judges werepolitically biased,and that insufficientimportance wasattached toretribution insentencing

relative to local courts was morespecifically linked to the perceivedcapacity of these respective courtsfor judicial independence and fairoutcomes,” the authors report. In2000 some 83% of respondentsbelieved that the ICTY judges wereindependent; just 47% held thisview in 2003. There was a similardecline in perceived ability of ICTYjudges to resist political pressures.At the same time, the perceptions oflocal court judges were improving.

The responses reveal thatconcerns about the ICTY’s judicialindependence and fairness were

Sarajevans’ assessments of theICTY, the authors conducted amultivariate analysis in which theperception of the ICTY’s overallfairness was the dependent vari-able. In sum, the analysis revealedthat:

Sarajevans’ perceptions ofinjustice at the ICTY werefueled by feelings that thesentencing of Galic was toolenient, that ICTY judges werepolitically biased, and thatinsufficient importance wasattached to retribution insentencing. None of theremaining variables—including, most notably,ethnicity and victimization orconcerns for victims’ rights—were statistically significantin their influence….

In the 2003 survey the respon-dents were asked why they be-lieved either the ICTY or the localcourts should be the venue for warcrimes involving Bosnia. “Withinthe groups that chose each setting,politics and punishment wereprominent,” the authors note. Forthose who selected the ICTY, thethree top reasons were certainty ofpunishment (54%), unlikeliness ofbeing influenced by politics (22%),and the likeliness of being removedfrom politics (16%). Among thosewho chose local courts, the topthree reasons were being mostfamiliar with local conditions(50%), understanding reasons forthe war (19%), and certainty ofpunishment (21%). “While thosewho chose the ICTY saw an advan-tage in being removed from localpolitical influence, those whoselected the local courts saw anadvantage in understanding thelocal context.” Regardless of thepreferred venue, there was agree-ment that war crimes in Bosniamust be punished.

The Local Dimension ofInternational Justice

The residents of Sarajevo cameincreasingly to resent what theysaw as “international understand-ings imposed on locally experi-


The summer program is sup-ported in part by the Kenneth F.and Harle G. Montgomery Foun-dation, the Solon E. SummerfieldFoundation, and the NationalScience Foundation. In addition,the ABF gratefully acknowledgesthe participation of ABF BoardMember Graham Grady and thesupport of the Chicago legalcommunity. Special recognition isextended to two firms whosecontributions merited a namingopportunity: the Kirkland & EllisSummer Research Fellow and theJenner & Block Summer ResearchFellow. Additional sponsors of the2006 program are:

Benefactors:DLA Piper Rudnick Gray Cary USLLP

Wildman, Harrold, Allen & DixonLLP

Katten Muchin Rosenman LLP

Contributor:Mayer, Brown, Rowe & Maw LLP

The 2006 Summer DiversityFellows were:

Zeh-Sheena Ekono, a rising seniorat Harvard University, whoworked with Senior ResearchFellow Robert Nelson and Re-search Fellow Laura Beth Nielsen.

Deepa Thimmapaya, a risingjunior at Northwestern University,who worked with Senior ResearchFellow John Hagan.

Tiffanye Threadcraft, a risingsenior at Harvard University, whoworked with Senior ResearchFellow Victoria Saker Woeste.

Danielle Toaltoan, a rising seniorat Swarthmore College, whoworked with Senior ResearchFellow Shari Diamond.

enced problems.” This conflict withthe tenets of international legalliberalism supercedes what hadbeen classic expectations of cleav-ages along lines of age, gender, andethnicity. Given that the war wasfought across ethnic lines, thisrelative ethnic consensus mightappear surprising, the authorspoint out. Yet it is also likely thatthis ethnic convergence is “aunique feature of the Sarajevansituation,” as it is a setting inwhich residents have expressed adesire to re-create a unified anddiverse Bosnia. “[I]t is uncertain, ifnot doubtful, that this consensusextends beyond Sarajevo.”

The conflict over jurisdictionbetween the ICTY and the localcourts was highly influenced bythe case of command responsibilityagainst Galic. Almost universally,Sarajevans believed that the 20-year sentence imposed by the ICTYwas too lenient. Yet in the case ofanother defendent, Colonel TihomirBlasic, Sarajevans favored greaterleniency than the ICTY sentenceprovided. They have also expressedstrong support for defendents’rights and procedural fairness. “Inthese ways, Sarajevans are highlycommitted to the institutionalgoals of the liberal legal project.” Asthe authors point out, the ultimatelesson of the Galic case and thesiege of Sarajevo “seems to be thatthe local dimension of internationaljustice cannot be ignored, and it isimportant to note that ... interna-tional criminal law and a globaljurisdiction should not seek to doso.”

The authors report on thisresearch in “The Politics of Punish-ment and the Siege of Sarajevo:Toward a Conflict Theory ofPerceived International (In)Justice,”40 Law & Society Review 369 (2006).

In addition to his affiliation with theABF, John Hagan is John D. MacArthurProfessor of Sociology and Law,Northwestern University. Sanja KutnjakIvkovi is Assistant Professor in theCollege of Criminology and CriminalJustice, Florida State University.

ABF Summer Diversity Fellowship Program

The American Bar Foundation was pleased to host four outstandingundergraduate students in the summer of 2006 who participated in theSummer Research Diversity Fellowship Program. The program offersstudents from across the country, who are selected in a highly competi-tive application process, the opportunity to explore the field of sociolegalresearch and observe law practice in the private and public sector.

Danielle Toaltoan, Tiffanye Threadcraft, Deepa Thimmapaya, Zeh-Sheena Ekonowith Tim Watson, ABF Program Associate (Center)

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