Opening the docket: trials of a war tribunal

Prosecuting the masters of war in former Yugoslavia means going after the same leaders the big powers must engage for peace

UNITED States Ambassador to Croatia Peter Galbraith recently drew thunderous applause by promising in a speech here that those who inspired and directed Europe's worst bloodshed since World War II would be brought to justice.

``Some have suggested there might be a compromise as part of a settlement in Bosnia, that there might be an amnesty for war criminals,'' he said. ``We may in Bosnia have to negotiate with war criminals. But we are not going to amnesty them.''

Speaking just hours after it held its first hearing in The Hague on Nov. 8, Mr. Galbraith asserted that the United Nations War Crimes Tribunal in Former Yugoslavia was ``going to go right to the top.''

But going after the main perpetrators raises a fundamental question of political will: Are the governments that control the UN really intent on prosecuting those leaders they need for making and keeping a Yugoslav peace accord?

For international decisionmakers, the dilemma transcends the former Yugoslavia and strikes directly at whether the great powers can deliver a promised 21st-century world order based on high moral principles. Or will they remain wedded to Machiavellian expediency that puts the ``national interest'' above all else?

``Governments are still playing the 19th-century game of Realpolitik, and people today throughout the world want to have a moral-ethical basis in international relations,'' says Cherif Bassiouni, a law professor at Depaul University in Chicago, who led a UN commission of experts in the first Yugoslav war crimes inquiries.

The dilemma also raises the issue of deterrence and whether leaders contemplating potentially bloody international adventures believe they can escape accountability.

For Richard Goldstone, the South African judge appointed as chief UN prosecutor, all that matters is the UN Security Council mandate to prosecute those responsible for inspiring, ordering, and committing mass ``ethnic cleansing,'' rapes, executions, torture, and other crimes against humanity.

``We are fact-driven. The effect [prosecutions] may or may not have on the political process is not for us to decide,'' Mr. Goldstone said in a telephone interview. ``You can assume that if there aren't indictments against people in senior positions, it's because we don't have sufficient evidence. If we get sufficient evidence, then people will be indicted.''

But another tribunal official, speaking on condition of anonymity, admitted political priorities could take precedence.

``The prosecutors will go as far and as high in the chain of command as the evidence leads them. If they [politicians] want one day to take the decision that they [the prosecutions] have gone too far, they have the freedom to do that,'' he said. ``They made the decision to set up the tribunal. They can close it.''

Unlike the Nazi leaders tried almost 50 years ago at Nuremberg by the Allies who arrested them in the defeat and occupation of Germany, those who presided over the Yugoslav tragedy are still in power, continuing to issue orders to subordinates who remain at large.

Peace and prosecuting

International mediators argue that absent foreign military intervention, peace depends on these leaders, whatever their roles in the slaughter that has left more than 250,000 dead in Croatia and Bosnia since 1991.

For this reason, these men have been enlisted in the peace process, especially Serbia's President Slobodan Milosevic, widely seen as the man behind Bosnian and Croatian Serbs' ethnic cleansing drives to create a ``Greater Serbia.''

Mr. Milosevic, along with Bosnian Serb leader Radovan Karadzic, and his military chief, Ratko Mladic, was included on a US list of suspected war criminals in 1992.

But he has now become the linchpin of an international strategy that relies on him to coerce the Bosnian Serbs and Croatian Serbs into accepting peace in return for the lifting of UN sanctions imposed against Serbia in 1992.

Furthermore, the Yugoslav crisis ``containment'' policies of Britain, France, and Russia hold that only a strong Serbia, with Milosevic at the helm, can ensure lasting regional stability.

``The whole thing goes back to whether the British, the French, and Russians want Milosevic prosecuted,'' says Ivana Nizich, who chronicles human abuses throughout the region for the New York-based Human Rights Watch.

``If the prosecutions reach a high level ... it is quite obvious there will be an incongruence on the one hand of trying to prosecute senior political and military leaders and on the other hand trying to induce them into a peace settlement,'' Professor Bassiouni says.

``When that point of crisis is reached, there will have to be a political choice, and that is either achieving a political settlement or achieving a justice goal,'' he adds.

Another factor is that the tribunal has no police force with which to arrest suspects, no powers to order their extradition, and no right to try them in absentia.

Cooperation with the tribunal is voluntary. The Muslim-led Bosnian government and Croatia have pledged to help, but Serbia and Montenegro and the Bosnian and Croatian Serbs do not recognize the tribunal's legitimacy and will not surrender suspects.

The UN Security Council will ultimately have to induce compliance, with measures including the use of sanctions.

But with the offer to lift sanctions on Serbia in return for Milosevic's cooperation, deciding to reimpose them could mean choosing between peace without justice or justice without peace.

The former would be dangerously short-sighted, opponents say. They hold that unless victims obtain retribution through the tribunal and all the peoples of former Yugoslavia are given a complete rendering of responsibility for the war, history will inevitably repeat itself.

``Millions are suffering. People need to know that the criminals are identified,'' says Tanja Petovar, a Belgrade human rights lawyer who assisted in a UN investigation into mass rape in Bosnia. ``They should not be left in the dark. We need to dispel the myths and establish real facts.''

``To have a lasting peace in the former Yugoslavia, you're going to have to have justice,'' agrees Eric Stover, executive director of the Boston-based Physicians for Human Rights, which has provided medical expertise to the UN tribunal. ``The first indictment is beginning that process.''

In an indictment issued Nov. 7, the tribunal charged a Bosnian Serb, Dragan Nikolic, with murdering and torturing Muslim inmates at a prison camp in northeast Bosnia. Mr. Nikolic is believed to be somewhere in Serb-held Bosnia.

A day later, the panel asked Germany to hand over Dusko Tadic, a Bosnian Serb it arrested in February. He is expected to be charged with committing atrocities during the 1992 ethnic cleansing in northwest Bosnia. (What Dusko Tadic is said to have done, below.)

Justice for pennies

Though welcomed, the actions failed to dispel doubts over how far up the command chains the tribunal will go. Some experts hold that a decision has already been made to restrict its reach.

``They came up with the idea of a tribunal that would be there and not do much,'' says Srdja Popovic, once Serbia's leading human rights lawyer and now a member of the New York-based Lawyers Committee for Human Rights.

Mr. Popovic and others support these charges by pointing to the 14 months of political wrangling over a chief prosecutor that preceded Goldstone. But, they say, more ominous is the lack of resources provided for the tribunal.

Its proposed 1994-95 budget was $32.6 million. By the time the budget was finally approved, two UN committees had eliminated the 1995 funds and approved only $11 million for 1994.

Tribunal officials agreed they will be stymied without a massive funding increase. They said they need to double the size of the prosecutor's 70-member staff of lawyers and investigators and build up to two more courtrooms.

The tribunal has submitted a 1995 budget request to the UN headquarters of between $30 million and $40 million, and Goldstone says he is hopeful the full amount will be approved.

But, he added, ``If we don't get sufficient money to do the job we've been given, then we are not going to attempt to do it.''