[ALBSA-Info] {QIKSH «ALBEUROPA»} PRESS: A LOOK AT. . . War Crimes and Punishment, By Diane F. Orentlicher - By Gary J. Bass (Washington Post, November 26, 2000)

[Wolfgang Plarre]

http://www.washingtonpost.com/ac2/wp-dyn/A56814-2000Nov25?language=printer

A LOOK AT. . . War Crimes and Punishment 

By Diane F. Orentlicher

Sunday , November 26, 2000 ; Page B03 

When Yugoslavia's new president, Vojislav Kostunica, said last month
that arresting ousted leader Slobodan Milosevic was not a priority for
his fledgling government, his defiance seemed all too familiar. Long
before Milosevic himself was indicted by the U.N. war crimes tribunal in
The Hague for atrocities in Kosovo, the former president reveled in
denouncing the court and made Yugoslavia a haven for indicted war
criminals from across the Balkans. But Kostunica has done something that
Milosevic never did: Acknowledge Yugoslav responsibility for war crimes.
Tribunal officials should respond with a new strategy--one that builds
on Kostunica's avowed commitment to dealing with the past.
     Kostunica has indicated that Yugoslav war crimes should be
addressed by a national truth commission. Officials in the new
government have also hinted that Milosevic may face trial. At least for
now, though, the government refuses to send Milosevic to The Hague. And
so while Western countries have raced to embrace the new Yugoslav
leader, the tribunal's chief prosecutor, Carla del Ponte, has responded
sharply. "Whatever President Kostunica may say," she said last week,
"the surrender of Milosevic is a priority."
     That's true, but consider a larger point. The new situation in
Serbia opens up possibilities for a transformed relationship between The
Hague and Belgrade--one that could benefit the tribunal considerably.
Kostunica is more susceptible than Milosevic to Western pressure to
cooperate with the tribunal--and surely more disposed to confront
Yugoslavia's responsibility for crimes committed in its name. 
     While The Hague tribunal should complete its work, including its
prosecution of Milosevic, it should find a way to include--and not
displace--Yugoslavia in its pursuit of justice. The tribunal could take
several steps to foster a new, more productive relationship with
Belgrade.
     First, tribunal officials should be willing to consider holding at
least some hearings in Serbia. While this possibility must be handled
with care, it should not be rejected outright. Both the Hague court and
its sister tribunal for Rwanda have been faulted for operating at a
remote distance from the societies directly affected by their work.
Barely known and widely misunderstood in the Balkans and Rwanda, the two
U.N. tribunals have squandered precious opportunities to nurture
national processes of reckoning. Belatedly, the tribunals have launched
outreach programs in the Balkans and Rwanda. Building on these efforts,
tribunal officials should take steps to bridge the distance between The
Hague and Yugoslavia, thereby ensuring that international justice
contributes to that country's ability to confront its past.
     Second, the office of the prosecutor should make greater efforts to
include citizens of the Balkans on its staff--something it has been
reluctant to do lest it be tainted by partisan bias.
     Finally, while del Ponte is right to insist on Kostunica's duty to
arrest Milosevic, it might make sense to allow some flexibility on the
timing of his transfer. (Whether Kostunica should delay in arresting
Milosevic, who threatens the stability of the fledgling Yugoslav
government, is another matter.)
     Far from undermining the tribunal, allowing Serbia to play a
meaningful role in bringing war criminals to account will enable the
U.N. court to fulfill its mandate--to secure justice for victims of
"ethnic cleansing" and thereby help foster lasting peace in the Balkans.
     Of course, the tribunal cannot surrender its own responsibilities
to the fragile and untested government in Belgrade. Kostunica is still
under siege from Milosevic loyalists, including a senior Interior
Ministry officer who says it is his "duty . . . to protect all Yugoslav
citizens" from being arrested by the tribunal. It may be some time
before Kostunica can tackle explosive prosecutions.
     Besides, allowing Kostunica to bypass The Hague would imperil the
tribunal's progress elsewhere in the Balkans. Western countries' rush to
embrace Kostunica without demanding his full cooperation with the
tribunal has undermined Croatian President Stipe Mesic's bold policy of
cooperation. Hard-line critics in Croatia have painted Mesic a fool for
cooperating with the tribunal while Serbia, which harbors the largest
number of publicly indicted suspects, seems to have gotten a free pass
since Kostunica's inauguration.
     Western governments should emphasize to Kostunica that Yugoslavia
remains bound to comply with orders of the tribunal. Kostunica, a
constitutional scholar known for his devotion to the law, has indicated
that he would not lightly defy international obligations. Besides, if
Kostunica is to surrender Milosevic and other indicted suspects to The
Hague, he may need the political cover of Western pressure.
     Whatever the precise timing of Milosevic's transfer, del Ponte
should press for the immediate surrender of other senior suspects at
large in Serbia. These include Gen. Ratko Mladic, twice indicted on
charges of genocide for atrocities committed in Bosnia, and three senior
military officials indicted for war crimes committed during the Serbs'
assault on Vukovar, Croatia, in the early 1990s. Their transfer to The
Hague tribunal would go a long way toward improving Yugoslavia's
fractured relations with its neighbors. 
     As a first step, the arrest of these suspects would also go a long
way toward ensuring that the tribunal meets its own cherished
aims--which are, in the words of its president, Judge Claude Jorda,
"restoring a peace of reconciliation in the Balkans."
     Diane Orentlicher, a visiting scholar in the program in law and
public affairs at Princeton University, is a professor of law and
director of the War Crimes Research Office at American University.

© 2000 The Washington Post 
_______________________________________________________________________
http://www.washingtonpost.com/ac2/wp-dyn/A56816-2000Nov25?language=printer

A LOOK AT. . . War Crimes and Punishment 

By Gary J. Bass

Sunday , November 26, 2000 ; Page B03 

Even at the height of his power and influence, Slobodan Milosevic hated
the idea of war crimes indictments for Serbian atrocities. In a 1995
meeting with American officials, he went out of his way to ask them to
postpone a decision on whether indicted war criminals could hold high
office in Bosnia. "In the house of a man just hanged," he said, "don't
talk about rope."
     Today, the rope--in the form of a trial before the International
Criminal Tribunal for the Former Yugoslavia in The Hague--is dangling
before Milosevic's own eyes. And the question is: How hard should the
West try to get Yugoslavia's former ruler in the dock?
     Over the past century, diplomats have wrestled with the issue of
what to do with war criminals. The case for international justice is not
just a legal one but a political one, and the politics have often been
appallingly messy. Much as someone like Milosevic deserves to be
punished, the 20th century's experience with war crimes trials suggests
that they pose real political risks. There is a powerful argument to be
made for them in the end, but that argument must take into account the
limitations and pitfalls of international justice. Ultimately, war
crimes trials are the right choice not because they are too morally pure
to be questioned, but because they are the least bad of a number of bad
choices before us. We should reject the only alternatives--summary
execution or ignoring the atrocities.
     There are reasons to be skeptical of war crimes tribunals. The
democratic world's desire to bring the orchestrators of wartime savagery
to justice by legal means actually says more about us than it does about
the criminals. It may be that the likes of Milosevic do not really
deserve the benefit of a trial, since no punishment can actually fit
their crimes.
     In domestic law, we weigh different gradations of criminality:
manslaughter, second-degree murder, first-degree murder, etc. But how
can such scrupulous standards be properly applied to the massive
slaughters that have wracked the Balkans? There is no such thing as
truly appropriate punishment for something as hideous as the Srebrenica
massacre, in which Serbian forces killed some 7,000 Bosnian Muslim men.
As political theorist Hannah Arendt wrote of the Nazi war criminals at
the Nuremberg trials: "For these crimes, no punishment is severe enough.
. . . this guilt . . . oversteps and shatters any and all legal
systems."
     Extending due process to mass killers also opens up the risk of
acquitting butchers who richly deserve punishment, but who have managed
to hide the relevant evidence--or kill or terrify the witnesses. After
World War I, there were two series of war crimes trials--one in Leipzig
for Germans, and one in Constantinople for Turks who led the 1915
massacre of Armenians. Both were failures, ending in only a handful of
minor convictions, because the Allies could not meet proper legal
standards of evidence and responsibility. In 1919, the British high
commissioner in Constantinople complained that a prominent Turk "was
undoubtedly deeply implicated in the crimes of which he is accused . . .
. There is, however, a lack of definite proof against him, and it will
probably be a matter of considerable difficulty to prove his individual
responsibility."
     The sheer scale of genocidal crimes--requiring thousands upon
thousands of killers--can overwhelm almost any judicial system.
Milosevic, after all, did not act alone. But what tribunal could hope to
punish all the guilty? Gerard Prunier, a French scholar and expert on
Rwanda, estimates that there were between 80,000 and 100,000 murderers
in the 1994 Rwandan genocide. Daniel Jonah Goldhagen, author of
"Hitler's Willing Executioners," estimates that there were at least
100,000 perpetrators of the Holocaust. But by 1948, according to the
American chief prosecutor at Nuremberg, only 3,500 Germans had been
tried.
     Finally, tribunals can be politically risky. After World War I,
German and Turkish backlash against Allied-imposed war crimes trials
proved destabilizing. As the Ottoman Empire spiraled into civil war,
Britain's efforts to punish Turkish war criminals became a particularly
sore point. In 1921, Mustafa Kemal Ataturk, the great Turkish
nationalist, demanded and got the release of war crimes suspects in
British custody (in exchange for a handful of British soldiers). Many
Germans, left and right, resented British and French demands for trials
of Kaiser Wilhelm II and others. In a grotesque irony, Hermann
Goering--who would end up as the most prominent Nazi suspect at
Nuremberg--first crossed paths with Adolf Hitler at a 1922 right-wing
protest of WWI war crimes trials.
     The alternatives to trial, however, are worse. The idea of summary
execution of alleged war criminals has a long and undistinguished
history. In 1943, at the Tehran Conference, Joseph Stalin proposed
shooting 50,000 to 100,000 German military men. The Soviet dictator was
playing true to form, but even democratic states can be sorely tempted
to dispense with legalistic mechanisms and punish war criminals the easy
way.
     In 1944, Henry Morgenthau Jr., Franklin D. Roosevelt's influential
treasury secretary, pushed hard for the summary execution of as many as
2,500 leading Nazi war criminals. Winston Churchill preferred the idea
of shooting the top 50 to 100 Axis war criminals within six hours of
capture. Cooler heads prevailed, chief among them U.S. War Secretary
Henry Stimson, who insisted that the punishment of the Nazi leaders
reflect "at least the rudimentary aspects of the Bill of Rights." If
there's a risk that war crimes trials will prompt a nationalist
backlash, that risk is likely doubled by unrestrained summary
executions.
     Ignoring war crimes is an equally unappealing option. The victims,
above all, may not want to "forgive and forget." The international
community may be able to shrug at the suffering of the Bosnians or
Rwandans, but we can't expect them to do the same. Perhaps the most
chilling example of the consequences of expecting victims to forget is
what happened upon the collapse of the Constantinople war crimes
tribunal. When Britain freed its Turkish prisoners in the Ataturk
exchange, determined Armenian assassins took over. In 1921, Talaat
Pasha, one of the masterminds of the Armenian slaughter, was gunned down
on a Berlin street by a young Armenian, while the Turkish grand vizier
at the time of the genocide, Said Halim Pasha, was killed by an Armenian
in Rome.
     Some of the same passions are alive in the Balkans and Rwanda
today. After the Rwandan genocide, many of the Hutu Power genocidaires
fled to Congo, where the Tutsi-led Rwandan government has pursued them.
This cross-border warfare--a legacy of the genocide--has helped spark
the massive war that now engulfs Congo. In Yugoslavia, lingering Kosovar
Albanian bitterness at Serbian war crimes is one of the biggest
impediments to the United Nations' plans for a multiethnic Kosovo.
     Both Bosnia and Rwanda are running their own war crimes trials,
alongside the two respective U.N. tribunals that handle the most
prominent suspects. But Rwanda's courts are overwhelmed by the vast
number of suspects; as many as 130,000 people sit in jail and most may
never make it to court. Some of Bosnia's efforts have sparked crises,
like the 1996 incident in which the Bosnian government infuriated
Serbian nationalists by apprehending Djordje Djukic, a Bosnian Serb Army
general; the crisis abated only after Djukic was flown to The Hague
(where he was indicted, but released just before dying of cancer). The
Hague provides useful oversight for local Balkan war crimes
prosecutions, which are not always up to international judicial
standards.
     There are some real virtues to war crimes tribunals. Nuremberg
yielded a staggering record of the operations of the Nazi machine: The
SS's files alone filled six freight cars, and the American chief
prosecutor assembled more than 5 million pages of documentation. To this
day, that record fortifies us against denial. There are many Serbian
nationalists who still believe that nothing happened at Srebrenica. The
Hague tribunal can help fight that.
     In the end, however, we shouldn't expect too much. Any situation in
which there is a need for a war crimes tribunal is a situation that has
gone horribly wrong. Having stood by as the slaughters in Bosnia and
Rwanda took place, the West can hardly expect that holding war crimes
trials will make up for the countless lives that were cut short. After
atrocity, all options are awful. War crimes tribunals are simply--in
both moral and political terms--the least awful option we have.

Gary Bass is an assistant professor of politics and international
affairs at Princeton University and the author of "Stay the Hand of
Vengeance: The Politics of War Crimes Tribunals" (Princeton University
Press).

© 2000 The Washington Post


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