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THE NEED TO ASSERT INTERNATIONAL LAW
The credibility of international humanitarian law demands a war crimes tribunal to hold accountable those responsible for gross violations in the former Yugoslavia. Opponents in the bitter ethnic and religious conflict have subjected civilians to summary execution, torture, rape, mass internment, deportation, destruction or confiscation of property and other violations of their rights. Many thousands have died.
A war crimes tribunal, sought by the U.N. Security Council, would be the first since the Nuremberg and Far East trials following World War II. The Security Council's decision, embodied in U.N. Resolution 808, derives its binding authority from the U.N. Charter's Chapter VII provisions regarding threats to peace, breaches of peace and acts of aggression. The Security Council's determination that violations of international humanitarian law constitute a threat to international peace and security and that the establishment of the tribunal would contribute to the restoration and the maintenance of peace is of ground-breaking importance. Considered from a different perspective, the Security Council's decision to establish a war crimes tribunal reflects the failure of the Security Council's primary mission to end the conflict and the atrocities.
Reaffirming the Nuremberg tenets and the principle of accountability should deter those in Yugoslavia and elsewhere who envisage "final solutions" to their conflicts with ethnic and religious minorities. A war crimes tribunal could also educate the general public not to accept egregious violations of human rights and humanitarian norms. Above all, there is a moral imperative to rigorously prosecute the offenders, given the deliberate, systematic and outrageous nature of the violations in the former Yugoslavia.
WAR CRIMES HISTORY
There is nothing new, of course, in prosecuting offenders against the laws and customs of war as reflected in national military codes. For centuries military commanders--from Henry V of England, under his famous ordinances of war in 1419, to the American military prosecutions of soldiers involved in the My Lai massacre under the U.S. Code of Military Justice--have enforced such laws against violators. In other cases, states have brought to trial captured prisoners of war for offenses committed against the customary laws of war. Thus both the accused's own state and the captor state have standing to prosecute. Neither system, however, has functioned with any degree of efficiency. Except in the case of a total defeat or subjugation--for example, Germany after World War II--prosecutions of enemy personnel accused of war crimes have been both rare and difficult. National prosecutions have also been rare because of nationalistic, patriotic or propagandistic considerations.
The Versailles Treaty after World War I illustrates the case of a defeated but not wholly occupied state. Germany was obligated to hand over to the allies for trial about 900 persons accused of violating the laws of war. But even a weak and defeated country such as Germany was able to effectively resist compliance. The allies eventually agreed to trials by German national courts of a significantly reduced number of Germans. The sentences were both few and clement. The Versailles model proved to be clearly disappointing.
On the other hand, after the four principal victorious and occupying powers established an international military tribunal (IMT) following World War II, several thousand Nazi war criminals were tried either by national courts under Allied Control Council Law No. 10 or by various states under national decrees. Nuremberg's IMT, before which about 20 major offenders were tried, and the national courts functioned reasonably well; the Allies had supreme authority over Germany and thus could often find and arrest the accused, obtain evidence and make arrangements for extradition.
Despite the revolutionary development of human rights in the U.N. era, no attempts have been made to bring to justice such gross perpetrators of crimes against humanity or genocide as Pol Pot, Idi Amin or Saddam Hussein, perhaps because the atrocities in Cambodia, Uganda and Iraq (against the Kurds) did not occur in the context of international wars. Internal strife and even civil wars are still largely outside the parameters of war crimes and the grave breaches provisions of the Geneva conventions.
The Persian Gulf War, as an international war, provided a classic environment for the vindication of the laws of war so grossly violated by Iraq by its plunder of Kuwait, its barbaric treatment of Kuwait's civilian population, its mistreatment of Kuwaiti and allied prisoners of war and during the sad chapter of the U.S. and other hostages. Although the Security Council had invoked the threat of prosecutions of Iraqi violators of international humanitarian law, the ceasefire resolution did not contain a single word regarding criminal responsibility. Instead, the U.N. resolution promulgated a system of war reparations and established numerous obligations for Iraq in areas ranging from disarmament to boundary demarcation.
This result is not surprising, for the U.N. coalition's war objectives were limited, and there was an obvious tension between negotiating a ceasefire with Saddam Hussein and demanding his arrest and trial as a war criminal. A historic opportunity was missed to breathe new life into the critically important concept of individual criminal responsibility for the laws of war violations. At the very least, the Security Council should have issued a warning that Saddam and other responsible Iraqis would be subject to arrest and prosecution under the grave breaches provisions of the Geneva conventions whenever they set foot abroad.
NORMS OF DUE PROCESS
To be credible, an ad hoc tribunal for the former Yugoslavia must respect impeccable legality and fairness. For better or worse, the precedent of such a tribunal will be invoked in future situations. The tribunal must comply with the basic norms of due process, including the right of the defendants to counsel, to cross-examine witnesses, to present evidence and, going beyond the procedural guarantees of Nuremberg, to appeal to an appeals court. The defendants' right to participate in their own defense should preclude in absentia trials, which are inherently vulnerable to abuse.
The rejection of in absentia trials need not, however, lead to the conclusion that nothing should be done. An independent and credible prosecuting authority, acting under the Security Council's mandate, could request arrest warrants from the new tribunal for suspected offenders and call on all states to hand over those persons for trial. Such warrants could clash with the accused's claims of diplomatic or sovereign immunity. Security Council resolutions adopted under Chapter VII must, of course, trump such claims.
Atrocities have been committed by all parties. Fairness and credibility require that the Serbs, although reportedly responsible for most violations, not be the only group prosecuted. Muslims and Croatians who have committed war crimes--or anyone else for that matter--should thus be equally investigated and prosecuted.
The marshaling of evidence strong enough to support convictions in criminal cases will prove difficult, especially as regards senior ranks. The U.N. Kalshoven Commission of experts charged with providing evidence of violations has negligible resources, consisting of only two lawyers and no investigators of its own. Fortunately Canada and the Physicians for Human Rights provided some investigators, but this is hardly enough. In contrast, the prosecution at Nuremberg employed hundreds of lawyers and investigators.
The Kalshoven interim report states that, while grave breaches have indeed been committed, tangible evidence has yet to be obtained. There is a world of difference between reliable reports on the events and evidence establishing individual guilt. The Kalshoven database contains information on places, dates, times, victims, types of violations and the identity of the militia involved, but rarely does it include the identity of perpetrators. Weaving together the Kalshoven information with data known to U.N. peacekeeping forces would help, but not overcome the underlying weaknesses. Moreover, proof of command responsibility will be very difficult. In many cases, different and at times obscure militias reporting to unknown or little-known authorities have been involved in successive stages of fighting and violations. In several areas there has been not just one, but several, conflicts between different groups.
In the absence of cooperation by those in control of areas where offenses have been committed, and because the International Committee of the Red Cross (ICRC) cannot disclose information incriminating individuals, gathering evidence will remain extremely difficult. If it is not already too late--for evidence might not be preserved much longer--the United Nations and member states must provide the Kalshoven Commission with the necessary resources, and evidence already obtained by other bodies must be fed into the system.
Critics of the Nuremberg trials censured as retroactive the rules of international humanitarian law that formed the basis for the prosecutions. However, the principle of individual responsibility of persons committing or ordering grave breaches of humanitarian law is now generally accepted, as is the list of treaty and customary provisions defining war crimes. In addition, both Nuremberg jurisprudence and the post-Nuremberg international law clearly reject the act of state defense and, except as possibly mitigating circumstances, the defense of superior orders. It is equally evident that the complaint that Nuremberg was a case of victors' justice is irrelevant to the new tribunal.
Although the definition of war crimes is now well developed, the same is not true of the penalties provided for the various crimes. The Geneva conventions define offenses but let the contracting states determine the penal sanctions. Under the conventions' universal jurisdiction system, all offenders already are subject to both the jurisdiction and the system of penalties of any state having custody of the offender. The terms of imprisonment imposed by the tribunal should not exceed the penalties stated in national laws implementing the Geneva conventions, especially those of the former Yugoslavia, with which the accused would be familiar. The accused, therefore, could not persuasively argue that they are being subjected to retroactive penal sanctions.
Warnings of war crimes trials have been unsuccessful deterrents in past wars and may prove no more effective in the case of the former Yugoslavia. The precedent and moral considerations for the establishment of the tribunal require action in any event. Furthermore, several factors may yet strengthen deterrence. First, modern media ensures that all actors in the former Yugoslavia know of the steps being taken to establish the tribunal. Second, the tribunal will probably be established while the war is still being waged. Even the worst war criminals involved in the present conflict know that their countries will eventually want to emerge from isolation and be reintegrated into the international community. Moreover, they themselves will want to travel abroad. Normalization of relations and travel would depend on compliance with warrants of arrest. A successful tribunal for Yugoslavia will enhance deterrence in future cases; failure may doom it.
THE LAW TO BE APPLIED
The 1907 Fourth Hague Convention, which codified the principal laws of war on land and provided the normative core for the post-World War II war crimes prosecutions, applies to international wars only. Likewise, the other principal prong of the penal laws of war, the Geneva conventions' and Protocol I's grave breaches provisions, is directed toward international wars. Violations of Common Article 3 of the Geneva conventions, which concerns internal wars, do not constitute grave breaches giving rise to universal criminal jurisdiction. Were any part of the former Yugoslav conflict deemed internal rather than international, the perpetrators of even the worst atrocities could not be prosecuted for grave breaches or war crimes but only for the crime of genocide, which is much more difficult to establish, and for crimes against humanity.1/4
Although the war in the former Yugoslavia has been both internal and international, broad consensus outside the region views the fighting to be an international armed conflict to which the totality of the laws of war is applicable, including, of course, the rules governing war crimes. This conclusion is shared by the Kalshoven Commission and by the U.N. secretary general. It is entirely possible, however, that should any trials be held, an individual defendant might try to argue that the conflict was internal and that he or she could not be accused of war crimes under international law.
The first international tribunal established by the international community since World War II should apply only those provisions of international law that are clear and generally accepted and establish the individual criminal liability of persons, not just the civil responsibility of the state. The tribunal's charter should be patterned on Nuremberg, supplemented as necessary by the law developed since. The Nuremberg charter listed three classes of offenses: crimes against peace (which are not relevant here), war crimes and crimes against humanity.
Nuremberg's charter defined war crimes as violations of the laws and customs of war by soldiers and civilians. They included murder; ill-treatment or deportation of a civilian population for slave labor or any other purpose; murder or ill-treatment of prisoners of war or persons on the seas; killing of hostages; plunder of public or private property; wanton destruction of cities, towns or villages; and devastation not justified by military necessity. The Nuremberg tribunal decided that these acts had already been recognized as crimes prior to World War II under customary international law, which was codified in the Fourth Hague Convention and the Geneva Prisoners of War Convention of 1929.
The 1949 Geneva conventions further codified war crimes by listing violations of certain fundamental norms as "grave breaches," subject to the universal jurisdiction of each contracting party. The conventions contemplate trials by national courts but do not preclude trials before an international tribunal.
Article 147 of the Fourth Geneva Convention, which is of special importance to the prosecution of crimes committed in Bosnia and Herzegovina, lists as grave breaches willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer, unlawful confinement, depriving a protected person of the right of a fair and regular trial, the taking of hostages, and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly.
Croatia and Serbia, in the pact concluded on November 27, 1991, and all the parties involved in the Bosnia and Herzegovina conflict, in an accord reached on May 22, 1992, agreed to apply most of the protective provisions of Additional Protocol I, except those concerning grave breaches. Both agreements specified a limited number of applicable articles of the Fourth Geneva Convention, again excluding those listing grave breaches. For the most part, however, the Fourth Geneva Convention concerns customary law and, in many respects, even peremptory norms that cannot be excluded by agreements. The case for applying the grave breaches provisions to the Yugoslav conflict is strengthened by the fact that all states involved have agreed to honor the obligations of the former Yugoslavia under the Geneva conventions. All states have also accepted the "Statement of Principles" approved by the London Conference on Yugoslavia on August 26, 1992, concerning compliance with international humanitarian law and personal responsibility for violations of the conventions.
Crimes against humanity were defined in the Nuremberg charter as murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds. Control Council law No. 10, adopted by the occupying powers as a charter for war crimes trials by their national courts, expanded the list to include rape. A possible option for the Security Council would be to adapt the Nuremberg or Control Council concept of crimes against humanity to the circumstances of Yugoslavia.
The Nuremberg jurisprudence suggested that war crimes, if committed in a widespread, systematic manner on political, racial or religious grounds, may also amount to crimes against humanity. Proof of systematic governmental planning of alleged acts was a necessary element of crimes against humanity. There is no such requirement for war crimes; crimes against humanity are therefore more difficult to establish. The character and systematic nature of some of the atrocities, especially mass murder and ethnic cleansing, make it imperative that appropriate prosecution be based on crimes against humanity and that a precedent be established.
The U.N. Convention on the Prevention or Punishment of the Crime of Genocide defines it to include "killing members of the group," "causing serious bodily or mental harm to members of the group" and "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." The convention requires proving intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such. The violence in the former Yugoslavia targeted against religious or ethnic groups, especially in cases of mass killing and ethnic cleansing, gives rise to a strong case for genocide.€ The crime of genocide is not based on a link to war and is thus equally applicable in times of peace. It is not necessary to demonstrate that the perpetrator was acting on behalf of a state.
In its advisory opinion of May 28, 1951, the International Court of Justice stated that the principles underlying the Genocide Convention were "recognized as binding on states even without any conventional obligation." The former Yugoslavia is in fact a party to the Genocide Convention, but the convention's norms applicability can in any case be derived from its customary or peremptory law character. The invocation of the crime of genocide by the international penal tribunal would have importance transcending the case of the former Yugoslavia. Because genocide is not limited to international wars, prosecuting this crime could become a significant deterrent to future atrocities.
DO THE VIOLATIONS FIT THE LAW?
Summary executions, torture, arbitrary mass internment, deportation and displacement, taking of hostages, inhuman treatment of prisoners and destruction or confiscation of private property not justified by military necessity would all be covered by war crimes under customary international law and by the grave breaches provisions of the Geneva conventions. When committed on a mass scale, such violations would also give rise to charges of crimes against humanity and of genocide, provided that the Genocide Convention's requirements are met, and should be prosecuted as such.
Under the weight of the horrifying reports of abuse against women, readiness to clarify the status of rape as a crime under international law has rapidly formed. Despite the fact that rape is not listed among the grave breaches of the Fourth Geneva Convention or Additional Protocol I, it is explicitly prohibited by both. The ICRC and the U.S. government have thus stated that rape can amount to a grave breach of the convention and to a war crime under customary law. A recent ICRC aide-mémoire discussing the systematic abuses committed against the civilian population in Bosnia and Herzegovina stated that the grave breach of "willfully causing great suffering or serious injury to body or health" obviously covers rape. There is no reason why rape should not be seen as torture or inhuman treatment under the Geneva conventions as well. Because of the mass and systematic practice of rape as an instrument of ethnic cleansing, it can also be prosecuted as a crime against humanity.‹
Ethnic cleansing consists of harassment, discrimination, beatings, torture, summary executions, expulsions, forced crossing of the lines between combatants, intimidation, destruction of secular and religious property, mass and systematic rape, arbitrary arrests and executions, deliberate military attacks on civilians and civilian property, uses of siege and cutting off essential supplies destined for civilian populations. Many of these methods, considered in isolation, constitute a war crime or a grave breach. Considered as a cluster of violations, these practices also constitute crimes against humanity and perhaps also crimes under the Genocide Convention.
THE NECESSITY AND UTILITY OF A TRIBUNAL
The international community's response to alleged war crimes in the former Yugoslavia must include the establishment by the Security Council of an ad hoc international criminal tribunal. The risks and difficulties of establishing such a tribunal require that the international community be cautious to avoid unrealistic expectations.
Despite its desirability, it is probable that the tribunal will not be very effective. This stark assessment is based on several considerations. First, as the situation now stands, there is insufficient evidence for prosecutions to begin. A major source for gathering evidence thus far has been nongovernmental organizations (NGOs), which do not always have expertise in marshaling evidence for criminal proceedings. In fact, the information normally gathered by NGOs and the evidence necessary to secure a criminal conviction are significantly different. The Kalshoven Commission has tried to gather information but has been frustrated by a lack of funding and personnel. NGOs, the Kalshoven Commission and other U.N. organizations, the European Community and the Conference on Security and Cooperation in Europe are all handicapped by the fact that the rules of evidence that will be applied by the future tribunal have yet to be established. Further problems will arise because, without the cooperation of the authorities, physical evidence cannot be properly preserved.
A second complication relates to the issue of custody. It is recognized that persuading states and authorities to carry out arrest warrants will be difficult and compliance will be negligible unless compelled by the international community. Further, in contrast to Nuremberg, the ad hoc tribunal for the former Yugoslavia will probably not enjoy the cooperation of the authorities controlling the territory in which the crimes were committed. Also, in contrast to the German practices in World War II, there is not likely to be a paper trail clearly linking the perpetrators to the crimes. Furthermore, the effectiveness of deterrence and the prospects of prosecutions are weakened by the need to negotiate with alleged perpetrators who may insist on assurances of immunity as part of a future agreement. If more of Bosnia and Herzegovina falls into Serbian hands, the international community's will to vindicate international law will be severely tested, especially since continued Russian cooperation in the Security Council remains uncertain.
Despite these obstacles, the establishment of an ad hoc tribunal is a laudable and necessary goal. The Security Council has already established the Kalshoven Commission to gather facts. By U.N. Resolution 808 the Council decided in principle on the establishment of the tribunal and requested the U.N. secretary general to submit proposals for implementation. Accordingly, there are already fairly high expectations in the international community in this regard. Abandoning the tribunal now would have a negative impact on the behavior of the parties to the conflict as well as adverse repercussions on general principles. On the ground, those committing war crimes would infer that regardless of their past or future violations they will not be held criminally accountable by the international community. As a matter of principle, abandoning the ad hoc tribunal would erode the values of Nuremberg. Additionally, it is important to try individuals responsible for crimes if there is to be any real hope of defusing ethnic tensions in this region. Blame should not rest on an entire nation but should be assigned to individual perpetrators of crimes and the responsible leaders. Confirmation of the principle of accountability might also discourage those in the former Yugoslavia and elsewhere who envisage "final solutions" to resolve conflicts within their countries, and would serve to promote justice and the effectiveness of international law.
Given the desirability of establishing an ad hoc tribunal, serious efforts are necessary to reduce the risks involved. There should be an energetic collection of information and evidence by both the international community and by states acting separately. Specifically, the budget and staff of the Kalshoven Commission should be drastically augmented to achieve this goal, and the prosecutorial arm of the future tribunal should be given all the required resources. Acting under Chapter VII, the Security Council could specify a system of measures requiring states to cooperate with the enforcement of arrest warrants. It should request that those involved in the conflict arrest and hand over for trial any of the accused whose arrest is sought by the tribunal and that all claims of immunity be denied. The offenders would be placed on an international "most wanted" list and would be subject to arrest the moment they enter a foreign country. Further, the international community must condition the resumption of normal relations with the states concerned on the handing over of suspects for trial before the tribunal. Finally, sanctions must be continued at least partially until those countries concerned comply with warrants of arrest. The Security Council should require other states, under Articles 48 and 49 of the U.N. Charter, to provide all necessary assistance to the tribunal.
States have been reluctant to exercise the universal jurisdiction granted them by the 1949 Geneva conventions in large part because of the perceived political price of prosecution. It is possible that the added factor of a Security Council demand for cooperation could provide the impetus needed to prosecute these crimes in national tribunals. This would serve to link the process in national tribunals to the continued development and revitalization of humanitarian law as a result of the work of the international tribunal.
The establishment of an ad hoc tribunal should not stand alone, however, as a sole or adequate solution. The world has failed to prosecute those responsible for egregious violations of international humanitarian law and human rights in Uganda, Iraq and Cambodia. To avoid charges of Eurocentrism this ad hoc tribunal for the former Yugoslavia should be a step toward the creation of a permanent criminal tribunal with general jurisdiction. The drafting of a treaty on a permanent tribunal, on which work has begun by the U.N. International Law Commission, should be expedited, providing an opportunity to supplement the substantive development of international law by an institutional process.
Though the risks attendant upon an ad hoc tribunal are substantial, they are outweighed by the detrimental effects that would result from abandoning this prospect. The Security Council and the international community must now accept the challenge and create the precedent for a more rigorous enforcement of humanitarian law. This step does not diminish the primary task of the Security Council, thus far unrealized, to bring about a conclusion of the conflict and to diminish the level of violence and atrocities while the conflict endures.