IN the wake of the collapse of ruthless regimes and internal conflicts that have marked the last decade, communities around the world are grappling with the agonizing question of how to balance justice for victims with national reconciliation. In three cases, justice is being given priority.
On Nov. 7, an international tribunal established by the United Nations on war crimes committed in the former Yugoslavia was convened in The Hague. The next day the UN Security Council established another international tribunal to try persons accused of atrocities in Rwanda. Soon, in Addis Ababa, trials of some 1,300 persons accused of crimes against humanity under the previous Ethiopian regime of Lt. Col. Mengistu Haile-Mariam will begin. In the cases of Yugoslavia and Rwanda, the actions are being taken under existing humanitarian law - primarily the Geneva Conventions of 1949 - that applies to war crimes and crimes against humanity. The Hague tribunals will be composed of jurists from other lands. In Addis Ababa, the trials will be conducted by Ethiopians under Ethiopian law.
But whatever the legal process, these post-atrocity attempts at justice have problems in common. It may be difficult to bring the accused to trial. The first action of the Yugoslav tribunal has been to request the extradition from Germany of a Serb, Dusan Tadic, charged with genocide and murder in a camp for Bosnian Muslims; Germany may agree. Apprehending those responsible for atrocities in Rwanda, many of whom are outside the country and are likely to resist return, may be harder. Although many of the prospective defendants in Ethiopia are in jail, several hundred others are abroad and possibly beyond the reach of Ethiopian authorities. Zimbabwe has not replied to a request to extradite Colonel Mengistu.
Gathering evidence for trials will not be easy. In areas where conflict is still continuing, the international courts must depend on human rights observers and witnesses prepared to risk retaliation; facts must be separated from false accusations generated by hate and revenge. In Addis Ababa, the problem is simpler: The Mengistu regime, like other brutal dictatorships, kept meticulous records of its cruelties.
The trials raise questions beyond process. Will they be seen as fair? Will they heal or exacerbate the inherent tensions in divided populations? In establishing the tribunals, the UN Security Council believed that an international court, based on accepted law, would meet standards of fairness. But, in bitter ethnic conflicts, charges of unfairness will arise if the tribunals seem to be leveling most of their charges against one side, such as the Serbs in former Yugoslavia.
Will a reenactment of the past which, of necessity, accompanies trials, perpetuate the animosities that lie at the heart of conflict or be a catharsis that will help to bury that past? Those who believe deeply that existing humanitarian law should be applied to the atrocious crimes of recent years believe that trials are not only essential for ultimate peace but also for the discouragement of such acts in the future.
Different courses have been followed in other countries. After the fall of dictatorial regimes in Uruguay and Chile, outside commissions publicly reported the atrocities, but there were no trials. Nelson Mandela has adopted a similar approach in South Africa. In these cases, the belief has been that revealing the truth of the past would meet the demands for satisfaction without the divisiveness of courtroom drama.
The success of these various approaches has yet to be determined. But whatever the approach, finding the proper balance between justice and reconciliation will be essential to the rebuilding of a nation.