Politics

Due Process

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The international war crimes tribunal for ex-Yugoslavia, once written off even by some of its supporters as a well-intentioned but ineffectual experiment, has been making remarkable strides in recent weeks. Since the summer, nato has conducted three raids to arrest indicted war criminals in Bosnia; this has evidently scared some other suspects into turning themselves in. Four suspects, all Bosnian Serbs, have surrendered to the tribunal since midJanuary. For years, the tribunal's 24-cell prison, mostly empty, was a symbol of the tribunal's powerlessness; on March 4, Dragoljub Kunarac became the twenty-fourth suspect in custody.

But the tribunal is still far from being an unqualified success. The most important accused war criminals--Radovan Karadzic, the wartime Bosnian Serb leader, and Ratko Mladic, his military chief--remain at large. Snaring the rest of the suspects on the tribunal's list is a major challenge for nato, and many skeptics remain. The same people in Congress who never wanted to use military force to help Bosnia during the war don't want to use it to arrest war criminals; the Pentagon doesn't want to risk soldiers in raids or subsequent reprisals; and Bill Clinton recently suggested that if Karadzic is "deep enough underground, if he can't have any impact on it, we might make the peace process work anyway."It is up to advocates like Secretary of State Madeleine Albright to make a persuasive case for international justice--and it is not, alas, a simple case to make. Men like Karadzic richly deserve criminal prosecution, and one would like to think doing the decent thing would automatically be good strategy, too. But an examination of a century's worth of international efforts at prosecuting war criminals suggests a muddier picture. In the end, war crimes trials are worthwhile, not because they represent an ideal solution, but because they are the least unappealing of several problematic alternatives for dealing with atrocities.

One drawback to tribunals is that it takes time--and patience--for trials to bring reconciliation. Take the

Gary Jonathan Bass, a fellow at Harvard's Center for International Affairs and a writer for The Economist, is working on a book on international war crimes tribunals.

best-case scenario: post-World War II West Germany, the country with the best record of coming to grips with its criminal past. The spectacle of Nuremberg initially had an impressive impact, according to polls in the U.S.- occupied zone of Germany. But, as trials for lesser Nazis dragged on, many Germans turned against the proceedings. In 1949, Konrad Adenauer, West Germany's postwar chancellor, followed public opinion and asked the Allies for clemency for Nazi war criminals. It took time and patience to remake Germany. Things went worse in Japan, where the Allied international military tribunal at Tokyo--a sibling court to Nuremberg--is publicly scorned to this day, and where there's still a depressing amount of sympathy for those Japanese the Allies branded war criminals.

In Germany and Japan, at least, there was little chance for a destabilizing backlash against the war crimes tribunals, because both countries were firmly under Allied occupation. But resentment of foreign-imposed war crimes trials can be much more dangerous when there's less military commitment. The best examples come from the aftermath of World War I, when the Allies imposed war crimes trials in Germany and Ottoman Turkey. In 1920, the British Embassy in Berlin reported nervously that Allied demand for the trial of German war criminals, including men as popular as Hindenburg, "arouses passionate resentment amongst all classes," and it worried that such policies might topple the shaky German government. The Allies' efforts galvanized right-wing nationalists who were significantly more dangerous than the Hohenzollerns' loyalists. Hermann Goring first encountered Hitler at one of the many rallies held across Germany to protest French demands that the Weimar government turn over accused German war criminals.

There was the same kind of backlash in the crumbling Ottoman Empire. By March 1919, a new Ottoman government eager to mollify the Allies had arrested a huge group of prominent wartime Ottoman leaders, including Said Halim Pasha, the grand vizier during the 1915 Armenian massacres. They went on trial in April 1919 before a special Turkish court martial. But the court's first death sentence brought mobs into the streets. Britain's efforts to punish war criminals became a rallying cry for Young Turk nationalists and for Ataturk's successful drive to expel the British from Turkey.

It's not so different today. Milorad Dodik, the new, relatively moderate prime minister of the Serb entity in Bosnia, known as Republika Srpska, faces roughly the same dilemma the Ottoman sultanate did. His uncertain grip on power is threatened by Karadzic, but also by any impression he's cooperating with Western efforts to arrest Karadzic. (One way to help Dodik: the West could make more of an effort to explain to Bosnian Serbs that, contrary to years of nationalist propaganda, the tribunal isn't an unfair anti-Serb court. )

Another problem with tribunals is that justice is often symbolic: there's no chance of putting anything close to all of the guilty parties on trial. Daniel Jonah Goldhagen estimates that there were at least 100,000 perpetrators of the Holocaust, and perhaps as many as 500,000. But, according to Nuremberg prosecutor Telford Taylor, only about 3,500 Germans had been tried by 1948. Gerard Prunier, a Rwanda expert, estimates that there were between 80,000 and 100,000 murderers in the 1994 Rwanda genocide. But the U.N. 's Rwanda tribunal has indicted just 35 people (although among the 23 suspects in custody are some of the most important men in Rwanda's old Hutu- led regime). The ex-Yugoslavia tribunal has publicly indicted only 74 men. (There are an undisclosed number of secret indictments.) Of the 24 in custody, only a few, like Bosnian Croat leader Dario Kordic and his Gen. Tihomir Blaskic, are high-ranking.

Yet another worry: Although supporters of tribunals usually claim such courts deter war crimes, the war criminals are all too often unimpressed. In May 1915, for example, while Ottoman Turkey was massacring about a million Armenians, the Allies issued a direct threat to Constantinople: "The Allied governments announce publicly to the Sublime Porte that they will hold personally responsible for these crimes all members of the Ottoman government and those of their agents who are implicated in such massacres." Talaat Pasha, the Ottoman minister of the interior, and Enver Pasha, the minister of war, were unfazed. As Henry Morgenthau Sr., the American ambassador in Constantinople, reported back to Washington, the Ottomans " refused to modify even when Russia, France, and Great Britain threatened Ottoman Cabinet ministers with personal responsibility." Sometimes, it's the lower-level perpetrators who aren't deterred, even when their leaders are. In May 1945, Himmler tried to ingratiate himself with the Allies by ordering an end to the "death marches" of Jews; his men continued their killings.

True, international pressure has occasionally yielded results in the Bosnian conflict. Peter Galbraith, until recently the American ambassador to Croatia, says that berating Mate Boban, a Bosnian Croat leader, made the Croats shut down some camps. Some senior American officials say the tribunal's indictment of Serb rebel leader Milan Martic for ordering rocket attacks on Zagreb helped deter similar attacks later on. But such successes pale next to the tribunal's failure to deter the single worst war crime in Europe since World War II. In July 1995, two years after the creation of the feeble ex-Yugoslavia tribunal in The Hague, Mladic's Bosnian Serb army slaughtered 7,000 Bosnian Muslim men and boys at Srebrenica. The tribunal sent new investigators and issued new indictments for Karadzic and Mladic, but the Bosnian Serbs simply defied the United Nations, the world community, and the tribunal. And, just last week, Serbian units carried out vicious reprisals against Albanian rebel supporters in Kosovo despite the example of recent trials in The Hague.

So why bother setting up tribunals? Because they still serve some vital functions. Although it may seem elementary, it's critically important to record what crimes actually happened. The Nuremberg court assembled a definitive record of Nazi criminality--a record that, even today, arms historians against would-be deniers. Conversely, the failure of the Constantinople trials has made it easier for successive Turkish regimes to deny the Armenian massacres. Lies like that pave the way to future violence. Such records are vital today, when Hutu genocidaires deny there was any unusual violence in Rwanda and when Karadzic claims that the Bosnian government faked several massacres.

Even if war crimes tribunals don't bring near-term reconciliation, they are still better than the usual alternative: vengeance. Near the end of World War II, the first American and British plan for dealing with top Nazi war criminals was simple: summary execution. In September 1944, the Treasury Department was considering shooting as many as 2,500 Germans. That was less than the 50,000 or 100,000 Stalin suggested killing, but it's likely even the Anglo-American plans would have gotten bloodily out of control. If many Germans came to resent the Allies' war crimes trials, they would have resented such executions even more. It was surely wiser to use judicial mechanisms, like Nuremberg, to restrain and focus Allied revenge.

Also, if the international community does not bring perpetrators to justice, vigilantes may just kill them instead. In 1919, the British high commissioner in Constantinople warned that, if the punishment of the Young Turks was ignored, "it may safely be predicted that the question of retribution for the deportations and massacres will be an element of venomous trouble in the life of each of the countries concerned." Sure enough, in 1921, Talaat Pasha, a mastermind of the Armenian massacres who had fled to Germany, was shot to death on a Berlin street by a revenge-minded Armenian. Said Halim Pasha, the former grand vizier, was gunned down in Rome the same year.

Even without such dire scenarios, an impartial tribunal is a useful way of defusing the inevitable tensions when old victims and perpetrators run into one another. The feebleness of international efforts at justice so far has left a vacuum that's filled by even more disruptive local Balkan legal and quasi-legal processes. Croatian courts, for example, are full of extremely dubious cases against Serbs. Franjo Tudjman's regime issued a general amnesty for the Serbs who rebelled against Croatian control in the border region called the Krajina, but Croatia keeps its Serbs off balance by not letting them know who's safe and who's still suspected of war crimes that go beyond the amnesty. As of October 1997, the court in Zadar said it still had to look at approximately 10,000 cases against Serb rebels. Some of these trials prove provocative. In April 1997, a local Croatian court in Zadar tried Momcilo Perisic, the chief of staff of the Yugoslav National Army (JNA) and 18 other JNA officers in absentia, sentencing Perisic to 20 years in jail for ordering artillery attacks on Zadar in 1991. This, predictably, infuriated Serbia.

Understandably, considering the horrific losses suffered by Bosnians, the Muslim-Croat Federation in Bosnia has its own war crimes prosecutions, too, which can also inflame local tensions. The federation trials are almost all against low-level Bosnian Serbs who fought against the Bosnians. Some are basically fair, but, according to the Office of the High Representative's monitors who follow the Bosnian trials, there are a lot of flaws: excessively tough sentencing, judges who are still used to old Yugoslav jurisprudence, a lack of space for an effective defense, and an inability to get to witnesses from Republika Srpska. And sometimes the trials go blatantly awry: just consider the case of Sretko Damjanovic, a Bosnian Serb convicted in 1993 of killing a group of Muslims, two of whom turned up alive in 1996.

Some high-profile cases have sparked crises. On February 6, Bosnian intelligence agents in Sarajevo captured a Bosnian Serb soldier accused of shooting Bosnia's deputy prime minister in 1993; in a tense standoff, Serbs took Muslim hostages in reprisal. On January 30, 1996, Djordje Djukic, a Bosnian Serb army general and Mladic crony, blundered into Bosnian government custody. The Bosnian government held Djukic as a major war criminal. After a nerve-wracking standoff between nato and the Bosnian Serbs, America had Djukic flown to The Hague, where the tribunal decided there was enough evidence to indict him. (In a bizarre the twist, he soon died of cancer.) Bosnian Serbs may scorn the tribunal, but they would have been even angrier to see Djukic in a Bosnian government court.

Do war crimes tribunals work? The only serious response is: Compared to what? War crimes tribunals have clear potential to work, and to work much better than anything else statesmen have come up with at the end of a war. A well-run legal process is superior, both practically and morally, to apathy or vengeance. True, the track record of international war crimes tribunals so far has often been underwhelming. Hamstrung for almost all of its existence by a lack of serious Western political support, The Hague tribunal has often looked like a failure, along the lines of Constantinople, rather than a heady success, along the lines of Nuremberg. But the lesson should be to do a better job from now on. If at first you don't succeed, try again.

 

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By Gary Jonothan Bass

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