In the fall of 1997 the judges of the International Criminal Tribunal for the former Yugoslavia will complete their four-year terms. If top and mid-level leaders indicted by the tribunal have not been arrested and delivered to The Hague by then, Antonio Cassese, the tribunal's president, has threatened to propose that the Security Council terminate the tribunal's mandate.-1 Cassese's warning echoes similar calls for top-level arrests from former chief prosecutor Richard Goldstone, justice of the South African Constitutional Court, and Louise Arbour, his successor from the Ontario Court of Appeals. Their frustration underscores the need for a careful evaluation of the tribunal's record and prospects.

The U.N. Security Council established the tribunal on May 25, 1993, when it adopted the Statute of the International Tribunal proposed by Secretary-General Boutros Boutros-Ghali. The council created the tribunal in response to the deliberate, systematic, and outrageous violations of human rights and humanitarian norms committed in the territory of the former Yugoslavia. Atrocities committed include summary executions, torture, rape, arbitrary mass internment, deportation and displacement, hostage-taking, inhuman treatment of prisoners, indiscriminate shelling of cities, and unwarranted destruction of private property. Of the 74 persons indicted for such atrocities, one has pleaded guilty and been sentenced to ten years imprisonment, five are currently in custody awaiting trial, and one -- Dusan Tadic, a Bosnian Serb accused of committing abuses against Muslims in the Omarska concentration camp in Bosnia -- is now standing trial. None of the seven, however, are top political or military leaders who gave the key orders. The absence of such leaders among those in custody has led Cassese to assert that the General Framework Agreement for Peace in Bosnia and Herzegovina reached at Dayton in November 1995 "is becoming an exercise in hypocrisy."

The tribunal's original purpose was to assign guilt for war crimes to the individual perpetrators and the leaders responsible, rather than allowing blame to fall on entire groups and nations. Its founders hoped that the tribunal could thus defuse ethnic tensions and assist in peacemaking. They also hoped that enforcing accountability would deter violations of international humanitarian law in Yugoslavia and elsewhere. Because the Hague tribunal was established while the war was still raging -- in contrast to the Nuremberg war crimes trials, which began only after World War II had been fought and won -- there was even a chance that it would have a deterrent effect for the remainder of the conflict. Conversely, failure to establish the tribunal would have eroded the values of Nuremberg and perpetuated worldwide the perception that even the most egregious crimes against humanity could go unpunished.

PAPER TIGER?

International or even national prosecutions for war crimes have rarely been the preferred option. Despite the bitter history of recent conflicts in South Africa and El Salvador, in both cases negotiations led to the establishment of truth commissions, not tribunals, as the principal institutions for addressing past injustices. Leaders in those countries understood that the people had to learn to coexist, and thus opted to pursue the process of reconciliation by combining efforts to set the historical record straight with pardons or amnesties for many perpetrators of atrocities. In the former Yugoslavia, the prospects for reunification and reconciliation were poor from the beginning. With the tremendous scale of atrocities, the hatred and suspicion between both the different communities in Bosnia-Herzegovina and their neighbors in the territory of the former Yugoslavia, and irresponsible leaders thriving on extreme nationalism and violence, international prosecution for war crimes appeared to be the only option.

From its inception, the tribunal has been plagued by the lack of cooperation from Serbian leaders in Belgrade, Bosnian Serb leaders in Pale, and Croatian leaders in Zagreb. In contrast to Nuremberg, where the allies had unlimited police power on the ground, the tribunal has had to depend on the readiness of the Security Council and the international community to exert pressure for full compliance on reluctant parties. When that pressure has been in short supply, the tribunal has encountered setback after setback. Suspects have been sheltered and protected. Access to sites where atrocities were committed has been obstructed, hindering the collection of perishable evidence. Witnesses, even victims, have withheld their testimony from the tribunal's investigators. That no witness for the prosecution in the Dusan Tadic case still lives in an area under the control of Pale or Belgrade speaks to the ever-present fear of reprisal among those who might testify.

Cooperation has been equally scarce at the governmental level. Republika Srpska, the Serb-majority entity in Bosnia, has failed to execute any of the scores of arrest warrants it has been sent. The Federal Republic of Yugoslavia's record has been almost as dismal; it has not arrested any of the indictees on its territory. Croatia has detained one, but has so far failed to deliver him up to The Hague. Zagreb's limited cooperation with the tribunal, to which it committed in the Dayton agreements, has been a small price to pay for Croatia's growing international legitimacy (it was recently admitted to the Council of Europe, often seen as a way station en route to the European Union).

Failure to obtain custody of a significant number of those indicted has encouraged suggestions that the tribunal resort to in absentia trials. Tempting as they may be, such trials would challenge the generally accepted interpretation of the tribunal's statute, raise concerns regarding due process of law, and be inherently vulnerable to error and abuse -- thus risking the tribunal's credibility, its most precious asset. Recognizing those dangers, the tribunal has wisely resisted the temptation.

But without in absentia trials, the tribunal is left with few options. The international community has given the tribunal strong rhetorical support, but little aid in enforcement. In addition, the tribunal has faced budgetary difficulties. Were it not for favorable public opinion, government and U.N. backing for both the tribunal and its budget would be even weaker. Antonio Cassese and Richard Goldstone have consequently devoted much of their time to mobilizing public opinion behind the tribunal and its mission. Goldstone's successor, chief prosecutor Arbour, will probably find it necessary to do the same.

WORDS, WORDS, WORDS

The Dayton agreements contained fairly robust language concerning compliance with the tribunal's orders, including the surrender of those indicted. Enforcement was another matter. Two possibilities were considered. The first was a diplomatic approach. In resolution 1022 of November 22, 1995, the Security Council suspended sanctions against the Federal Republic of Yugoslavia and Republika Srpska, but provided for the reinstitution of those sanctions within five days of receiving a report that either government was significantly failing to meet obligations under the Dayton agreements, one of which is cooperation with the tribunal. Either of two officials could issue such a report: the commander of the NATO Implementation Force (IFOR) or Swedish diplomat Carl Bildt, whose responsibilities as High Representative under the Dayton agreements include coordinating the implementation of civilian aspects of the settlement. Since Croatia had never been subject to sanctions, this option did not apply to it. As powerful a tool as the ability to automatically reinstate sanctions might have proved to be, the Security Council recently rescinded Resolution 1022 to reward Serbian President Slobodan Milosevic for holding elections, an essential step in the peace process.

When the Presidency of Bosnia-Herzegovina and a steering board of foreign diplomats met in Paris last November, the parties confirmed their obligation to surrender indicted persons "without delay," while Western leaders spoke of linkage to economic aid and even new sanctions. Such statements, which are periodically issued but rarely meant, amount to nothing more than collective hypocrisy.

The second option considered was military force. But while the Dayton agreements granted IFOR sufficient powers, its leadership, spearheaded by the United States, chose to hide behind a transparent fiction. Under bizarre operating procedures, IFOR troops are allowed to arrest indicted war criminals they encounter, but cannot seek them out. As long as the international community had no effective power on the ground, the military's reluctance to attempt arrests was perfectly understandable. But given the military muscle IFOR now possesses, it is a disgrace that the principal indictees have not been detained, let alone delivered up to The Hague, and can instead thumb their noses at the international community by continuing to appear in public places. I believe that they could have been captured without serious casualties, especially with help from the intelligence community. The risk was worth taking.

The Clinton administration appears to have been split over the more aggressive use of IFOR, but the cautious view that no lives should be risked prevailed, as could have been expected in an election year. Perhaps after the elections there will be a greater readiness to seek out and arrest the principal culprits, but this must be done before time runs out for both IFOR and the tribunal.

Because the Dayton agreements have reversed neither the effective partition of Bosnia and Herzegovina nor the Serbs' control over the territory they held at the end of the war, the Bosnian Serbs' wartime leaders, Radovan Karadzic and General Ratko Mladic, will continue to be sheltered by Pale. For the time being, a realistic assessment of the future of the Hague tribunal's workload should thus be based on the trials of Tadic and the six others now in custody. Those six include three Muslims and one Croat who were staff members at the Celibici camp and will be tried jointly for alleged abuses committed against Bosnian Serbs; a Bosnian Croat who has pleaded guilty to crimes against humanity committed while serving in the Bosnian Serb army (he participated in summary executions of hundreds of unarmed Muslim civilian men in July 1995) and was sentenced on November 29, 1996, to ten years imprisonment, which he may appeal; and Croatian General Tihofil Blaskic, who was indicted for ethnic cleansing in the Lasva Valley in central Bosnia -- and was nevertheless arrogantly promoted by Croatian President Franjo Tudjman, only later to be "persuaded" to surrender to the tribunal after a rare instance of strong international pressure.

Since Serbs committed more atrocities than any other party, and since the lack of cooperation from Belgrade and Pale has made it more difficult to prepare indictments in cases where Serbs themselves were the victims, justice required that any indictments of Serbs be prepared and launched without waiting for parallel indictments of Croats and Muslims. Nevertheless, the fact that the tribunal's list of indictees was for a long time composed solely of Serbs exacerbated the Serbs' siege mentality and fueled their complaint that they were the only target.

Whatever their ethnicity, the number of people in custody is not conclusive evidence of success or failure. But numbers, along with the seniority and responsibility of individual defendants, could provide critical momentum that the tribunal may never gain. If IFOR could not carry out arrests with the tremendous firepower of its 60,000 troops in Bosnia, surely no arrests will be attempted as the NATO force dwindles and ultimately withdraws.

QUALIFIED SUCCESS

The great hope of tribunal advocates was that the individualization and decollectivization of guilt -- placing responsibility on the leaders and the perpetrators of atrocities, rather than on whole communities -- would help bring about peace and reconciliation. The tribunal's critics argued that it would obstruct peace negotiations. How, they protested, could those who make decisions at the negotiating table be expected to agree to provisions that might endanger their leadership and bring them to justice? The irony is that both sides were proved wrong. Because of the international community's reluctance or inability to enforce indictments, the tribunal has had no major impact, positive or negative, on national reconciliation.

It may, however, have had some positive impact on the broader peace process. One important result of the indictments, and of the Dayton agreements, was to establish a record of Karadzic's culpability in atrocities committed against Bosnian Muslims, and thus exclude him from direct participation in the political process. Whether that is a significant and lasting achievement depends on both the degree of his influence behind the scenes and his continued exclusion after the withdrawal of IFOR and its successor force. At the very least, Karadzic's absence from Dayton allowed Milosevic to accept aspects of the agreement, including the lack of an amnesty clause, that Karadzic would likely have rejected.

Another of the tribunal's objectives was deterrence of continued and future violations of the law. There is some anecdotal, unconvincing material suggesting that the indictment of Serbs from the Krajina region of Croatia put an end to their rocket attacks on Zagreb. But the gravest atrocity, the Serb massacre of thousands of Muslims living in and around Srebrenica, happened in July 1995, when the tribunal was fully operational and Karadzic and Mladic had both been indicted.

Paradoxically, while the goals specific to Yugoslavia have not been fulfilled, the tribunal has had significant success in strengthening international law, an achievement that must be considered in any cost-benefit analysis. Without the establishment of the tribunal and the example of the Tadic trial, the perception that even the most egregious violations of international humanitarian law can be committed with impunity would have been confirmed. In the Tadic case alone, the tribunal has advanced the state of the law governing international and internal armed conflicts, especially as it pertains to the conduct of hostilities and crimes against humanity. It has also affirmed the customary, unwritten law that binds all states to international standards of behavior. Likewise, the appeals chamber's rulings on jurisdictional issues in the Tadic case have been the first judicial affirmation of international criminality and individual responsibility for violations of international humanitarian law since Nuremberg. Both the statute and the indictments also con firmed the international criminalization of rape. The tribunal has generated an unprecedented interest in humanitarian law and in punishing those who violate it. War crimes have entered the mainstream of political debate and U.N. decision-making.

In terms of pursuing justice within the former Yugoslavia, those indicted by the tribunal are now branded with a mark of Cain that serves as some measure of retribution, preventing them from traveling abroad and instilling in them the fear of arrest by an adversary or foreign government. In the absence of many actual trials and judgments, the confirmed indictments come as close as is possible to establishing a credible international record of the indicted persons' offenses, one that will discredit them until they stand trial.

Furthermore, without the Yugoslav precedent, the International Criminal Tribunal for Rwanda would not have been established to prosecute those responsible for the genocidal violence that swept that nation in 1994. The Rwanda tribunal also belies complaints about the Eurocentric nature of international concern over Yugoslavia. Beyond Rwanda, the International Criminal Tribunal for the former Yugoslavia has also triggered interest in the establishment of a permanent international criminal court, a concept now under active General Assembly consideration. On a national level, the revival of international humanitarian law has encouraged various countries to adopt statutes under the principle of universality of jurisdiction, granting competence to their national courts over violations of international humanitarian law committed in other states and enacting laws permitting the

"extradition" of indicted persons to an international criminal tribunal. The evidence the prosecution has collected at The Hague could one day be used by national courts, especially as statutes of limitations do not usually apply to war crimes and crimes against humanity.

Last, and perhaps most important, the international investigation and prosecution of war crimes and crimes against humanity has proved credible and feasible. Helping to pave the way for future prosecution of such crimes, the tribunal has prepared a comprehensive set of rules of procedure and evidence, which, in the words of the tribunal, are the first code of international criminal procedure and evidence.

YUGOSLAVIA AND BEYOND

With four of the suspects in custody due to be tried jointly, and the trial of General Blaskic scheduled to begin in January, the tribunal's work is assured for at least another year. More time will be required if Zlatko Aleksovski, indicted for crimes against Muslim civilians, is delivered up for trial as ordered by a Croatian court and confirmed on October 2, 1996, by the Croatian Supreme Court. There is also the possibility of appeals, which might require another six months. Even with these tasks, the tribunal may soon approach the end of its working life. It should not be continued only to serve as a fig leaf for the impotence of the international community to enforce international law. Perhaps the realization that the tribunal's days may be numbered unless indicted leaders and perpetrators are arrested and delivered up to The Hague may yet shock the international community into action. Folding the tribunal before it has tried a substantial number of major culprits would be immensely embarrassing to both the international community and to the United States, which has given the tribunal more political, budgetary, and logistical support than any other nation. It is this embarrassment, more than anything else, that can extend the tribunal's lease on life. The tribunal should not be terminated before concluding the existing caseload and any additional cases and, where possible, more expeditiously issuing additional indictments of principal culprits.

Unless custody over indicted persons is rapidly obtained, a mechanism for trying persons arrested in the future will have to be devised. One option is to reconvene the tribunal. Another is to encourage prosecution by national courts, as all states already have the right to prosecute those accused of grave breaches of the Geneva Conventions. To facilitate both options, during the next year or two the prosecution should organize the material it has collected in such a way that states that are willing and able to resort to national prosecutions can easily access and use it. Recently, nations worldwide have been more ready to prosecute human rights and humanitarian atrocities, including Korea, where even ex-presidents have been convicted, Ethiopia, and Honduras. In South Africa, prosecutions are under way against persons who did not cooperate fully with the truth commission by coming forward, reporting the entire truth, and seeking amnesty. It is not absurd to suggest that in a few years Belgrade, Zagreb, or even Pale might have more responsible leaders and more credible criminal justice systems, and might be ready to prosecute before their courts some of those indicted by the tribunal. The prosecution could aid such efforts by preparing a report on the historical record analogous to the report of a truth commission.

Despite the difficulties the Yugoslav tribunal has encountered, it may be necessary to follow the same or a similar model in the future. But from now on, international criminal tribunals must be more effectively supported by police power. Just as there can be no national justice without a police force, there can be no effective international justice without arrests, subpoenas, investigations, and a reliable enforcement mechanism. The international community's inability to create such a mechanism, whether for ad hoc criminal tribunals or for the proposed international criminal court, threatens all efforts to create a system of international criminal justice. But we must not give up in despair.

1- The tribunals for Rwanda and the former Yugoslavia share two organs: the prosecution and the appeals chamber. These organs will continue to exist even after the tribunal for the former Yugoslavia completes its business. The Security Council may thus have to amend the tribunals' statutes accordingly.

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  • Theodor Meron is Charles L. Denison Professor of Law at the New York University School of Law. He assisted Richard Goldstone in the prosecution of indicted war criminal Dusan Tadic in 1995.
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