A Tribunal in Name Only

One minor conviction, while the main war criminals walk

President Clinton had it right two years ago when he said of Bosnia that there "can be no peace without justice," and that this must be achieved "by prosecuting war criminals." But, as of now, the major war criminals are untouched, justice has not been done, and peace is a cease-fire held together by foreign troops.

Four years ago, the United Nations Security Council established a special tribunal in The Hague to prosecute the crimes that marked the war in the former Yugoslavia. Today, the court's state is such that its president, Antonio Cassese of Italy, a world-class legal authority, has spoken of asking the Council to terminate the tribunal's mandate.

So far, 74 suspects have been indicted but only two minor figures have been tried. One pleaded guilty; the other, Bosnian Serb Dusan Tadic, was convicted - the first such conviction in 50 years. The Dayton agreements, with which the United States stopped the Bosnian war, provided most solemnly that the parties - Croats, Serbs, and Muslim Bosnians - would cooperate with the court. But their nonperformance is a tragic farce; in Mr. Cassese's words, Dayton is "becoming an exercise in hypocrisy." The parties and the peacekeepers share the blame.

The leaders who caused ethnic cleansing, mass murder, strategic rape, and cultural genocide are still at large. Men like Gen. Ratko Mladic and Radovan Karadzic have been indicted. International warrants have been issued for their arrest. They could all easily have been caught. IFOR, NATO's heavily armed intervention force stationed in Bosnia all of last year, did not lift a finger. Nor has SFOR, the smaller stabilization force that replaced it.

Only the United States, the strongest proponent of the war crimes tribunal, has taken the slightest action. It pried loose an indicted former paramilitary commander, whom the Croatian government had been protecting, by threatening to block loans and financial aid.

The worst enjoy impunity

As for Serbia, President Slobodan Milosevic, whose incendiary nationalism started the war and who sent Yugoslav Army troops against Croatians and Bosnians in their countries, has not even been mentioned. His help was needed to bring the Dayton agreements into the barn, and this may be his reward. Monsters like the Serb guerrilla leader known as Arkan, who specialized in atrocities against unarmed civilians, also enjoy impunity. Only eight of those indicted are in custody. Not only do the parties in the region ignore the court's arrest warrants, they also refuse to obey its subpoenas for evidence. The Bosnian Serbs hinder or completely block forensic exhumation at mass graves.

Why the inaction? The court is fully constituted, with 11 judges from 11 countries and a carefully chosen prosecutor. Its mandate from the Security Council is to prosecute grave violations of the Geneva conventions on war and protection of civilians, genocide, and crimes against humanity - including murder, extermination, enslavement, deportation, and torture. Rape has been added to these "classic" offenses.

The court's mandate also affirmed the Nuremberg principle of individual responsibility: Following orders is no excuse.

It specified that a head of state or government who planned, ordered, or abetted the commission of a crime had no immunity because of his position. In fact, he could be held accountable for failure to prevent a crime. The machinery of justice was well constructed, the law it applies is unchallenged, and its jurisdiction explicitly includes internal conflict.

The court is an organ of the Security Council and is established under Chapter VII of the UN Charter, which authorizes measures to deal with threats to international peace and security. All states have a binding obligation to cooperate with the tribunal. In theory, the court may ask the Council to enforce its decisions with political, economic, or military sanctions.

Hypocrisy is the right word

The reason that almost nothing is happening must be that the United States, France, and Britain do not want to act. They are permanent members of the Security Council, which created the tribunal. They are also the core of NATO, which is sidestepping it. Hypocrisy is not too strong a word. It fits the earlier pattern of policy toward the Yugoslav wars, pairing shrill protest at the horrors with refusal to do the minimum to stop them.

The motivations behind the tribunal were probably mixed. Some, appalled by the crimes, genuinely wanted trial and punishment. Others wanted, cynically, merely to appear to be doing something. Still others went along to escape the embarrassment of remaining aloof. In any case, the court was denied the means of investigation and enforcement, which make the difference between pretense and reality. The same goes for the Rwanda war crimes tribunal established with the same rules in 1994, except that where the Hague tribunal has little and relatively trivial work, Rwanda has 90,000 suspects in custody. There, sheer numbers seem to rule out fair trial.

Reconciliation would cement real peace. The key to reconciliation is justice. This kind of justice can hardly promote it.

* Richard C. Hottelet, a longtime foreign correspondent for CBS, writes on world affairs.

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