Justice Must Be Demanded for `Ethnic Cleansing' Crimes

IT is hard to recall a time when headlines did not proclaim, virtually on a daily basis, some new war atrocity in the former Yugoslavia. The situation has received extensive debate in the United States Congress, the United Nations, and in other forums, and added "ethnic cleansing" to our vocabulary.

But more questions than answers have resulted from this worldwide deliberation. How long will the war continue? How many more will die or be forced from their homes? Will the newly imposed maritime blockade against Serbia help Bosnians? Will the killing and purging spill over from Bosnia into Kosova, making ethnic Albanians (90 percent of the population of Kosova) the next target of Serbian-backed ethnic cleansing?

One vitally important question has not received much attention: Will those guilty of war crimes in the former Yugoslavia eventually be punished? It is not too early to consider this question. An affirmative answer by a unified world community might bring the atrocities to an end. The Bosnian government estimates that more than 40,000 individuals are dead or missing and more than 2 million have been driven from their homes - the greatest tide of refugees in Europe since World War II. Atrocities are report ed on both sides, but Serbian atrocities appear to far outweigh those committed by Muslims and Croats.

We must send a strong message that these actions will not go unpunished. On Aug. 11, 1992, the US Senate endorsed such a message by a 74-22 vote. During Senate debate on the resolution, I referred to this as a "defining moment" in US foreign policy. How we handle this situation will tell the world much about America's role in the post-cold-war world.

Among its provisions, the resolution on the former Yugoslavia called for the convening of a war crimes tribunal. On Oct. 6, the UN Security Council adopted Resolution 780, requesting the secretary-general to establish a commission of experts to analyze war crimes information submitted by countries and human rights organizations. The commission also would conduct its own investigations into alleged violations of the Geneva Conventions and other violations of international humanitarian law committed in the

the former Yugoslavia. The resolution allows the UN secretary-general to recommend "further appropriate steps."

What are further appropriate steps? Perhaps the most famous instance in which individuals were held responsible for war crimes was the Nuremberg Trials. On Aug. 8, 1945, the Allied Powers London Agreement was signed, creating an International Military Tribunal.

The UN General Assembly adopted Resolution 95 (1) on Dec. 11, 1946, noting the agreement and annexed charter establishing the tribunal and affirming "the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal." Later, the UN's International Law Commission would formulate seven principles of international war crimes law which evolved from the Nuremberg experience.

Unfortunately, while work has continued in this area over the years, a comprehensive regulation of crimes against peace, war crimes, and crimes against humanity has not yet evolved. This does not mean that the work of the newly created UN Commission of Experts will be in vain. The world can still use the UN to pass judgment on the criminals of the former Yugoslavia.

Another avenue open to a world community seeking justice in the former Yugoslavia may be the Convention on the Prevention and Punishment of the Crime of Genocide. The Genocide Convention was first adopted in 1948. Yugoslavia is a signatory to the convention and thus bound by its provisions. The convention defines genocide as the intentional destruction of any national, ethnic, racial, or religious group, in whole or in part, by killing its members, causing them serious physical or mental harm, imposing c onditions of life calculated to bring about their physical destruction, imposing measures intended to prevent births, or transferring children from one group to another.

The convention renders punishable the actual commission of any of these acts, as well as conspiracy, incitement, attempt, and complicity in connection with any of them.

How is the convention enforced? The main sanction lies in the undertaking of its parties to enact legislation to implement the convention. Each party is then responsible for providing for the punishment of offenders by national courts of the state within the territory on which the genocide has been committed. However, it is possible for accused individuals to be tried by an international tribunal agreed to by the parties.

Few are yet willing to call what is happening in the former Yugoslavia "genocide" as it is historically understood. However, if the UN Commission of Experts verifies reports of ethnic cleansing and of torture, starvation, and execution in detention camps, it is hard to imagine how such activities would not fall within the scope of activities punishable under the Genocide Convention. In the end, justice must be served for the crimes being committed in the former Yugoslavia.

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