bosnia report
New Series No: 21/22 January - May 2001
Balkans legacy may be a war crimes court that works
by Martin Woollacott

It may be that the most important memorial to the recent wars in the Balkans will be a system of international justice for war crimes and crimes against humanity of some permanence and effectiveness. If so, it will be a case of failure in one sphere leading to success in another.

The international criminal tribunal for former Yugoslavia would never have been set up had western countries acted decisively to stop the violence there, and the same could be said for the Rwanda tribunal. Establishing the tribunals was a substitute for policies that would have prevented the crimes being committed in the first place. But it was a kind of gain, which contributed in turn to the agreement, however imperfect, on an international criminal court in Rome in 1998.

This advance toward global justice is, of course, far from irreversible. What happens in Serbia in the next few months, in particular, will determine whether a comprehensive accounting for the crimes of the past 10 years in that region takes place. If it does, the general prospect for international justice is improved; if not, it will be diminished.

The historical record is not encouraging. Nuremberg was a relative success but, as Gary Jonathan Bass shows in his new study of war crimes tribunals, efforts to try war criminals in the past were frequently aborted, abandoned, or allowed to degenerate into farce. When countries who had proposed such trials found them politically inappropriate, or discovered that the risks of pursuing those charged were high, or found the trials got in the way of negotiations to end conflicts or of making a new start with the new leaders of former enemy nations, they closed them down or let them die of inanition.

There is nothing new, for instance, about refusing to risk troops in arresting indicted men, as Nato forces in Bosnia did for a long time, or about wanting to moderate or abandon trials for fear of a nationalist backlash. In 1815, when the nations debated whether and how to punish Napoleon and his marshals, British naval officers were instructed not to risk a single sailor's life in apprehending him. After the first world war, trials in Leipzig and Constantinople of German and Turkish leaders, officers, and officials, the latter for their crimes against Armenians as well as on other charges, were abandoned when circumstances changed. Bass traces these themes through the years and ends by noting the ‘unhappy possibility’ that the Hague and Arusha ‘will be forgotten as completely as Leipzig and Constantinople’.

Yet, as Bass also demonstrates, there are grounds for optimism. The Hague tribunal, in particular, is an example of an international institution which acquired an independent life and which persisted in its task in ways that irritated and sometimes enraged its creators. The countries who had wanted to establish it in order to show they were doing something about the Balkan crisis did not want it to become genuinely operational and for a long time gave it no money, no intelligence, and no help in arresting suspects. That changed because a remarkable sequence of men and women, including Antonio Cassese, the first presiding judge, Richard Goldstone, the first chief prosecutor, and Lousie Arbour, his successor, refused to be sidelined.

They nagged and haggled and lobbied, sometimes in a very public way, for the means to do their job, and then did it. Arbour, for example, upset the Americans by indicting Slobodan Milosevic, who feared it might make negotiating with him more difficult, toward the end of the Kosovo war. The arrival in power of two foreign ministers, Madeleine Albright and Robin Cooke, who were strongly in favour of the tribunal, helped make it into a real force.

The difficulty now is balancing the need to help Vojislav Koštunica consolidate himself in Serbia with the need to pursue Miloševiƒ and other indicted men in that country, and to gain the access to the documents and the witnesses allowing the indictment of many more in all parts of former Yugoslavia. Koštunica is engaged in a delicate process of reassuring parts of what used to be Miloševiƒ's constituency, including the armed forces and police, compromising with some of its leaders, and at the same time competing with it for popular support ahead of the December elections.

To hand over indicted men would undermine this strategy and could lead to a surge of largely unreconstructed Serbian public opinion against him. His repeated line that cooperation with the tribunal is not a ‘priority’ is a coded plea for Europe and the US to avoid public demands for the suspects to be sent to the Hague and not to make the aid that Serbia needs conditional on handing them over.

Western governments are mindful of his problems and know they will have plenty of leverage, especially economic leverage, over the Serbian government after elections in which they hope Koštunica and the opposition coalition will have reduced the influence of Miloševiƒ's party and its allies. For the time being there is no strident pressure for action on those indicted. But there are real risks in leaving everything until next spring. It may be that the Miloševiƒ forces will do better because he and others are still in the country. It may be that the elections will not produce a clear result, and there will then be arguments for continued compromise and delays. It may be that Western governments will lose interest, as they have done before.

Meanwhile, war crimes work everywhere in former Yugoslavia is critically dependent on movement in Serbia. There have already been serious military and political ructions in Croatia over the likely indictment of a number of senior officers. It would be hard for the Croatian government to hand them over if there seemed no prospect that Serbs charged with similar or worse crimes were safe at home. If that happened, as one seasoned observer of the tribunal says, ‘they might as well close the doors’.

The trial of senior figures is not the only consideration. Professor Cassese, in a lecture this week for the Centre for Human Rights at the London School of Economics, spoke of the danger posed by an inadequate or fraudulent process of ‘truth and reconciliation’ in Serbia. To be acceptable, he argued, such a process, which Koštunica seems to favour, must not include the most senior figures - they must go to The Hague - must punish the worst offences and offer pardons only for lesser crimes, must emphasise full disclosure, and must be in full cooperation with the tribunal, not in any way a rival to it.

The combination of anger at what has been perpetrated and an insistence on due process is the essential combination in dealing with war crimes, according to Gary Bass. ‘You need both law and moral passion,’ he says. The difficulties which still face the tribunal suggest that both must be burnished in the months ahead.

Gary Jonathan Bass was the guest speaker at the regular monthly forum of The Bosnian Institute on 6 November 2000, when his book Stay the Hand of Vengeance (Princeton University Press, £18.95) was launched in Britain. The comment above appeared in The Guardian (London), 17 November 2000



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