Bosnia War-Crimes Tribunal Could Be Boosted by CSCE

THE United Nations International Criminal Tribunal for the Former Yugoslavia is no substitute for more-resolute action to stop the ongoing genocide in Bosnia-Herzegovina. The international community must continue to seek an immediate cessation of hostilities as well as a just peace that does not further erode its own credibility to put into practice the principles it espouses.

But the administration of justice by an impartial tribunal will be essential for achieving any serious, long-term reconciliation in the Balkans and breaking the cycle of violence and vengeance that has racked not only this region but the whole of Europe for centuries.

What are the tribunal's prospects for providing the kind of authoritative reckoning for which it was established? In fact, with Americans and Europeans working together, the prospects are better than most people think.

All UN member states have an immediate and legally binding obligation to surrender indicted persons when so directed by the tribunal. Countries like Germany, Denmark, and Switzerland, which already have suspects in custody, are likely to cooperate. But in many more instances, the tribunal may be confronted with deliberate noncompliance.

Faced with a state's refusal to cooperate, the tribunal's prosecutor may resubmit the indictment in open court (dubbed by some a ``super indictment'') and the trial chamber may issue an international arrest warrant to all states, branding the perpetrators of these crimes notorious and hunted outlaws. Super indictments will also establish a public record of the crimes that have been committed in this war - a record that, in many ways, will speak for itself.

The Security Council can also punish noncompliance by maintaining sanctions against Serbia or, in the case of other defiant countries, imposing sanctions until they cooperate. But sanctions have failed to curb Serb aggression so far and, while they should remain one tool of persuasion, it is time to find others.

In particular, we advocate the creation of a public-review process by the 53-nation Conference on Security and Cooperation in Europe (CSCE), the same ``Helsinki process'' known as a human rights sentry during the cold war. Any country that gives refuge to accused and indicted war criminals must be reminded at every turn that it stands apart from the community of civilized nations and must pay a political price for doing so.

This process, drawing on a now-established track record of cooperation between the UN and the CSCE, would complement the issuance of super indictments and help pressure noncomplying governments to live up to their obligations. Although this effort is not likely to have much effect as long as a shooting war persists, it may produce results as the parties in the conflict seek to normalize their relations with the rest of the world.

We envision a two-pronged role for the CSCE. First, its parliamentary assembly should be utilized to facilitate the adoption of the implementing legislation necessary for the surrender of indicted persons. Without such legislation, a technical loophole would exist in most countries - including the United States - that would give indicted persons the legal grounds to challenge jurisdiction and avoid trial.

Second, in December 1994 the CSCE will hold a summit meeting of heads of state and government in Budapest. At that time, the participating states should appoint a high-level person of impeccable qualifications to serve as special rapporteur on the war crimes tribunal. He or she would be tasked with monitoring compliance by CSCE participating states with the orders of the tribunal and reporting back to the decisionmaking bodies of the CSCE.

In the meantime, the Security Council must remove the road- blocks that have prevented the selection of a chief prosecutor for the tribunal. An Australian, Graham Blewitt, has been quietly and effectively serving as acting deputy prosecutor since February and, to his credit, is moving toward issuing indictments later this year. But the prolonged absence of a chief prosecutor undermines public confidence in the court and in the decisionmaking capability of the Security Council.

Russia is playing an unconstructive role in blocking Western candidates, which seems particularly out of step with the post-cold-war image it ostensibly seeks to cultivate.

Concerted political pressure, even when channeled through the magnifying lens of the CSCE, will not perform magic. But many countries harboring war criminals will not surrender them unless failing to do so has consequences, and the CSCE process can ensure that consequences ensue. The tribunal's super-indictment powers are important, but we are not prepared to concede that they are the best we can expect or the most for which we should strive. The Opinion/Essay Page welcomes manuscripts. Authors of articles we accept will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts by mail to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.