Some Rules of the Road on Prosecuting War Crimes

Human rights advocates have certainly had much to celebrate lately. The International Criminal Tribunal in The Hague has handed down a series of judgments against Bosnian Serb and Croat war criminals. For the first time, the Yugoslav government has surrendered indictees. And now Slobodan Milosevic has been arrested in Belgrade.

Over the next year, a steady stream of defendants will issue forth from the tribunal’s well-stocked cells to go to trial, including top wartime political leaders like Biljana Plavsic, Momcilo Krajisnik and, perhaps, even Milosevic himself.

Yet the tribunal remains the target of a barrage of accusations. Not surprisingly, the most strident attacks have come from rump Yugoslavia. They have been spearheaded by President Vojislav Kostunica, who speaks with the authority of a professor of constitutional law. The attacks have been fueled by what Kostunica calls the “selective justice” of the United Nations in establishing criminal tribunals and of the tribunal in The Hague in prosecuting some crimes while overlooking others.

The court’s defenders have not offered a convincing explanation of why some crimes are tried while others ignored. While the court’s impartiality is beyond reproach, its supporters have been slow to acknowledge several factors that have cast its integrity in doubt.

For one thing, the court lacks the resources to investigate and try every case in a place like Bosnia, which U.S. Ambassador Thomas Miller has characterized as the home of 10,000 war criminals. Nor is it especially proficient in managing the finite resources at its disposal. The tribunal’s claim to impartiality also is undermined by its dependence on the assistance of individual countries, both in supplementing its modest budget and in gathering evidence of criminal wrongdoing. For years, the Milosevic regime could rightly accuse the tribunal of ignoring crimes committed against Serbs largely because the Croatian regime of Franjo Tudjman refused to allow investigators on its soil, but also because Milosevic himself forbade it from interviewing Serb refugees who had fled to Yugoslavia. More recently, Kostunica has refused to transfer indictees like Milosevic to The Hague by falsely claiming that Yugoslavia’s laws supersede its obligations as a signatory nation.

Yet responsibility for the politicization of the U.N. tribunals also rests with the United States, which often has been selective in applying its formidable financial resources, diplomatic leverage and intelligence capability to the cause of international justice. Since the beginning of the Cold War, Washington has downplayed or ignored crimes committed by its allies and by countries with whom it seeks a working relationship. Hence the disinterest in large-scale atrocities committed by fiercely anti-Communist regimes in Leopoldo Galtieri’s Argentina, Suharto’s Indonesia and Turkish Kurdistan; the delay in prosecuting the murderous Pol Pot regime in Cambodia while it served as a useful counterpoise to communist Vietnam; and the decision not to pursue Saddam Hussein in deference to Arab allies. Basically, no crime committed anywhere in the world can come to a U.N. criminal tribunal if it contradicts the national interest of the U.S. or another major power.

Finally, the cause of international criminal justice is circumscribed by several subjective criteria beyond which perpetrators must step before triggering the creation of an international tribunal:

* Crimes must be massive in scale to distinguish them from individual criminal acts that are the counterfeit currency of warfare. Thus the murder of four nuns in El Salvador or Marxist activists in Chile will be left to the collective conscience and courts of the nations in which they were committed.

* There must have been absolutely no military objective; thus “collateral damage” will always be tolerated.

* Perpetrators must have had foreknowledge that they were committing a crime, such as by murdering captured prisoners or raping civilians. Spontaneous acts of passion, such as the shooting of prisoners during the heat of battle, are unlikely to be prosecuted.

* Precedence will always be given to prosecuting unprovoked crimes, especially when committed at the inception of a new conflict, such as in Croatia and Bosnia.

Over the next few months, the court will get some relief from its accusers, in large part because of the insistence and financial leverage of the U.S. and its allies. Thanks to the cooperation of Croatian President Stipe Mesic, the mass murder of Krajina Serbs finally will be admitted in evidence. The court has sent a team to Kosovo to gather evidence of crimes committed by Albanian extremists. And Kostunica has even allowed investigators onto Yugoslav soil to interview Serb refugees from all of the war zones of Milosevic.

Once Milosevic himself has been tried in Belgrade for crimes committed against his own people, it may be politically possible both for the Kostunica regime to deliver him to the The Hague and for the Serbian people to acknowledge some of the crimes that were committed in their name. At that point perhaps the tribunal’s critics will recognize that its agenda is no more selective than the evidence before it.