BESET by many emergencies, the United Nations Security Council will soon also face a milestone decision. It must decide whether and how to prosecute war crimes in the former Yugoslavia. In February the Security Council decided to establish an international tribunal to judge serious violations of humanitarian law there since 1991. It has asked Secretary-General Boutros Boutros-Ghali to spell out the important details.
This body cannot be a kangaroo court executing vengeance. In law, in procedure, and in its judges it must command respect to fulfill its purpose. Through punishment of the guilty it must deter a repetition of the genocidal "ethnic cleansing" and mass rape that mark Serbia's war against Croatia and Bosnia-Herzegovina. Public demand for action has pushed reluctant governments along. How they perform in the Security Council will show whether they are determined to catch criminals or are using this activity to avoid intervening more directly in the sorry struggle.
War crimes trials are not new. Under the Treaty of Versailles, ex-Kaiser Wilhelm was to answer for "a supreme offense against international morality and the sanctity of treaties." But the Netherlands, where he lived in exile, refused to surrender him. Nor were other Germans convicted. When a U-boat commander appeared before the German court, his acquittal set off celebrations, so bitter was popular resentment of Versailles.
The next time around, after World War II, the victorious allies did not repeat that fiasco. Occupying Germany, they had the surviving leaders, the evidence against them, and the power to punish them. It was all painstakingly legal. What are known as the Nuremberg principles are today accepted as international law: individual responsibility for aggression and violating the laws and customs of war, as well as for crimes against humanity.
SINCE 1945, on the initiative of the International Red Cross, the basis for international criminal trials exists in a body of what is called humanitarian law. Four Geneva conventions prohibit criminal acts against civilians in both enemy and occupied territory. Newer conventions against genocide and torture specifically make individuals liable. Yugoslavia is party to all of them. On this foundation, the Security Council must erect an institution which - even though temporary and limited to offenses in th e former Yugoslavia - is effective and above suspicion.
Why must this ad hoc tribunal be created by the Security Council and not the 181-member General Assembly? Because, it is argued, the UN Charter empowers the Council, not the Assembly, to take measures "to maintain or restore international peace and security" and to demand the compliance of all nations. That power could be crucial in getting hold of suspects and witnesses. There are many more questions. Are genocide and other major offenses defined precisely enough to serve as law? Where would the court s it? Should it try suspects in absentia? Right of appeal? Trial by jury? What penalties? The United States and Islamic countries accept the death penalty, most others do not; but of these, Britain, Italy, and Spain have capital punishment in their military codes. Where would prison sentences be served?
What the UN Security Council is now preparing is a further restriction of the sovereign rights that have marked relations between states in modern times. Since national courts in the former Yugoslavia cannot be relied upon to pursue those accused of war crimes, the international tribunal must supervene.
Unconnected with this ad hoc tribunal is the plan to establish a permanent international criminal court to adjudicate a "Code of Offenses against the Peace and Security of Mankind" that could go beyond the classic humanitarian law to deal with such crimes as narcotics traffic. This has been discussed for 45 years and will take years more. But in the last five years, since the cold war closed, the nations composing the UN accelerated efforts toward this end, as the work on the ad hoc tribunal attests.
Legal experts meeting in Canada last month concluded why this should be. "Justice," they wrote, "is a very real human need. Injustice ignored breeds continuing injustice."