DIPLOMACY : End to Victors’ Justice: War Crime Trials For All

There is history in the Bosnian peace accords signed last month in Dayton, Ohio, but even more historic is what they leave out--they contain no amnesty for major war criminals. In 1993, the United Nations established the International Criminal Tribunal for the former Yugoslavia, and so far the tribunal has indicted 52 people--42 Bosnian Serbs, three Yugoslavs and seven Bosnian Croats--for genocide, war crimes, grave breaches of the Geneva Conventions and crimes against humanity.

The tribunal’s supporters feared the indictments would be bargained away as part of the peace settlement. Instead, the accords bind each party to full cooperation and authorizes North Atlantic Treaty Organization forces to arrest the indicted. The accords specify no indicted person may serve in an elected or appointed position in the new governments.

This is dramatic indeed: If the parties comply with what they signed--by no means a sure thing--for the first time, international prosecution for war crimes will not be reserved solely for those who lose a war. Justice will no longer be an instrument serving only the powerful.

It has taken 50 years to the month to get to this point. In November, 1945, U.S. Supreme Court Justice Robert H. Jackson opened the International Military Tribunal at Nuremberg as its chief prosecutor, calling the tribunal “one of the most significant tributes that power has ever paid to reason.” That tribunal convicted 19 Nazi leaders and acquitted three. Subsequent U.S. military tribunals brought cases against 182 lesser defendants, including industrialists and members of the Einsatzgruppen, the mobile death squads. In 1946, an international military tribunal at Tokyo began trials of 25 Japanese wartime leaders, sentencing 16 to life imprisonment, seven to death.

The tribunals nearly didn’t happen. As World War II drew to a close, British Prime Minister Winston Churchill and several prominent U.S. officials pushed for summary executions of Nazi leaders. And neither Nazi law nor existing international law prohibited the atrocities the Germans committed against German Jews--who were, of course, German citizens. Outsiders, therefore, had no legal basis for sticking their noses in matters between governments and their people.

So Nuremberg created one. This was ex post facto justice--and the law frowns on prosecuting people for acts that were not considered crimes when committed. But if the Nuremberg tribunals stretched existing law, it was to prosecute men who had stretched existing ideas of state criminality. Bureaucratic mass murder is a 20th-century hallmark of progress, and the law had to evolve if it were not to condone such practices.

The Nuremberg Tribunals gave birth to modern human-rights and humanitarian law. They formed the basis for the 1949 Geneva Conventions, which obligate countries to punish people--even their own citizens--who violate the conventions. In 1950, the United Nations adopted a list of seven principles from Nuremberg’s charter and judgments that have since been codified in the law of almost every major nation. To give one example, soldiers who commit atrocious crimes can not win acquittal by arguing they were only following orders. Nuremberg established the principles that individuals are accountable for their human-rights violations in wartime, and with crimes against humanity, there is no such thing as “internal affairs”--a government’s treatment of its citizens is everyone’s business.

What Nuremberg did not do, however, was apply these standards to the winners. The tribunals did victors’ justice: There were no Allies in the dock for the bombings of Dresden or Hiroshima. This is the problem with international law today: Thanks largely to Nuremberg, the world has developed a sophisticated body of law; but imagine a nation trying to carry out its law with no police or courts. With no enforcement mechanism, international law has been applied piecemeal--usually by states with enemies in custody. It produces victors’ justice or none at all.

Nuremberg’s supporters had hoped to establish an international criminal tribunal able to prosecute criminals even if they retained political clout. But the proposal died, a casualty of the Cold War, and is only now being revived as the United Nations discusses a permanent international criminal court.

For 50 years, then, trials for war crimes or crimes against humanity came only under national laws in individual nations’ courts. Here, too, law has fallen victim to considerations of power. The problem is most visible in the recent attempts of Latin American democracies to try the human-rights abusers of past military dictatorships.

In 1985, Argentina tried nine members of the Dirty War juntas for murder and other atrocities, and convicted five of them. But subsequent military up-risings intimidated the new civilian president, Raul Alfonsin, into stopping the trials, and the five men were later pardoned.

In October, Chilean authorities managed to jail retired Gen. Manuel Contreras, the notorious head of the secret police in the first years of Gen. Augusto Pinochet’s regime. The civilians won out after months of defiance by Contreras and the military.

But justice was done largely because of U.S. pressure--Contreras was convicted of ordering the bombing of opposition leader Orlando Letelier in Washington. Contreras’ punishment will have to serve as symbolic justice for the Chilean torturers and killers who will never be brought to account. The military, still headed by Pinochet, is simply too strong.

Law’s reliance on power can be just as dangerous when the balance shifts in the other direction and the new democracy has too much strength. While Latin American militaries still hold new civilian governments hostage, in Eastern Europe, the Communist old guard surrendered unconditionally. That opened the way to using trials as a political weapon.

Victor’s justice has become a staple of the transitions to democracy in Eastern Europe. In Romania, mobs dragged dictator Nicolae Ceausescu and his wife to a summary trial and shot them. The Czech Republic has relied on a controversial law known as “lustrace” that blocks from high government jobs everyone who appears in the communist secret police list as an informer. Hundreds who did nothing wrong have found themselves on the list, and must struggle to clear their names without benefit of due process. Lustrace has been turned into a political tool--one whose absolutism and disregard for rights echoes communism.

Surprisingly, one of the clumsiest states at dealing with communist crimes has been Germany--the one country with wealth, a legal tradition and a democracy that need fear nothing from the old Communists. It is, however, the only place where victors and vanquished were not one nation. In 1993, Erich Mielke, former head of the dreaded East German secret police, was sentenced to six years in prison for the murder of two policemen in 1931--based on evidence gathered, possibly through torture, by the Nazis.

Also in 1993, Markus Wolf, former head of East German foreign intelligence, was given six years for treason for spying on West Germany. Most Germans thought Wolf’s real crime was losing the Cold War, and the courts later struck down his conviction. The German trials were so flawed that many in the former East began to view them not as their own efforts to punish past criminals, but West Germany’s--once again, victors’ justice.

The tribunal for the former Yugoslavia offers a better possibility than any court in history of meeting the challenge of punishing atrocities fairly. The Clinton Administration deserves praise for recognizing its importance and for refusing to bargain it away in exchange for peace. Far from getting in the way of peace, as some feared, the tribunal helped divide the Serb leadership and weaken hard-liners--making peace more likely.

Now, the peace agreements have strengthened the possibility of justice. The tribunal’s biggest problem is that only one of the 52 indicted men is in custody, a Bosnian Serb named Dusan Tadic, living in Germany. Tadic is charged with a terrifying array of atrocities: At the infamous concentration camp of Omarska, he is accused of forcing prisoners to bite off each others’ testicles. As for his 51 counterparts, they remain at large, shielded by their countrymen. Bosnian Serb leader Radovan Karadzic, indicted for, among other crimes, the murder of up to 6,000 Muslim men around Srebrenica, said after the signing that there would be a blood bath if anyone tried to arrest him or other Bosnian Serbs. In a clear violation of the peace accords, last week, the Bosnian Croats released indicted war criminal Ivica Rajic, the only other wanted man in custody.

If justice and accountability are not to slip away, the United States and Europe must keep pressure on the Serbs and Croats, reinstating sanctions on Yugoslavia and blocking aid to Croatia if the two nations refuse to surrender the indicted. There are ominous indications that political will is wavering. It will be a difficult process, one that will have people wishing for the easier path of victor’s justice. But after 50 years, it is time to move on to the real thing.”