WASHINGTON — AS World War II took its savage toll on Europe, the British government kept a list of German leaders it wanted to shoot without the benefit of trial after the war. Instead, in Nuremberg, Germany, judges representing the United States, France, Britain, and the Soviet Union tried many of the men, some of whom were later hanged.
Now, US Secretary of State Lawrence Eagleburger is calling for a "second Nuremberg" to try alleged Serbian and Croatian war criminals.
"The fact of the matter is that we know that crimes against humanity have occurred, and we know when and where they occurred," Secretary Eagleburger said in Geneva Dec. 16.
Three months ago the US government began turning over to the United Nations the first of four reports on alleged violations of humanitarian law in the former Yugoslavia. The reports include grisly details of mass executions, torture, and rape.
The US has identified some of the individuals who are suspected to have committed the crimes. Eagleburger wants to try the political leaders of the suspects as well, so that these leaders can tell of any actions they took to prevent or punish the atrocities.
On Oct. 26, United Nations Secretary-General Boutros Boutros-Ghali appointed a commission of five international legal experts to examine and analyze information about possible breaches of international law on wartime conduct. This commission is now in Geneva investigating reported violations of various international conventions that define the rights of prisoners of war and civilians caught in war zones.
Whether the world has the stomach for a war-crimes trial is still unclear. "There may well be a legal basis for a trial, but what he [Eagleburger] is doing is taking this legal basis into an area that is full of politics," says Telford Taylor, the chief prosecutor in the second year of Nuremberg trials and author of a book on the trials (see accompanying story).
The politics of war-crimes trials can be seen in Australia, which in 1987 established a war-crimes inquiry for crimes committed during World War II. After spending five years and A$20 million ($13.8 million), the government has finally started one trial. Although the investigation covered about 200 people, only six people may ultimately face trial. Newspapers have editorialized about the high cost of the investigation. "We've had to create a separate legal system," says Brian O'Callaghan, legal counsel for the Australian Embassy in Washington.
Some human rights groups say the best solution is to establish a standing court where perpetrators of war crimes could be brought to justice.
"In the long run the most important thing that could come out of [the crisis in the former Yugoslavia] would be an international tribunal that has the capacity to investigate and prosecute people who commit crimes against humanity, from peasants to heads of state," says David Phillips, president of the Congressional Human Rights Foundation.
Some legal scholars, however, say the idea of a tribunal that could punish crimes against humanity that transcend national frontiers is likely to remain just that: an idea.
"The definition of what is a war crime or a crime against humanity is fairly clear," says Alfred Reuben, a professor of international law at Tufts University in Medford, Mass. "The problem is that nobody really wants to submit his own actions to an impartial tribunal. It will be very difficult to get a tribunal that anybody wants to apply to anybody but their own enemy."
The existence of such a court would open up the possibility, for example, that President Bush could be tried for waging "aggressive war" - which is forbidden under the 1949 Geneva Conventions - in the 1989 invasion of Panama, or that Israeli officials could be tried for violations in the West Bank and Gaza of laws governing military occupation.
Nevertheless, some human-rights activists say that the time is right for such a tribunal. "It's an important initiative that could send a signal to other nations to focus hard on how you treat human beings," says Peter Truebob, a Washington attorney and former president of the International Society of International Law. If we don't deal with wartime atrocities when they occur, he says, "we run the risk that people will forget that there are rules."
War-crimes trials also afford the accused a chance to answer charges. "If you don't have a trial, how do you know a person deserves to be shot?" asks Mr. Taylor, the former prosecutor.
In Australia, for example, a court has thrown out the charges against one individual, since there was not sufficient evidence to go to trial.
Such trials also help to heal the wounds and end cycles of retribution, Taylor says. He recalls that one of the lawyers for the defense at Nuremberg said the trials were not perfect, "but considering what happened during the war, you had to have this to clear things up."