Prosecuting war criminals

As we remember imprisoned peacemakers, Xabi Agirre Aranburu argues the case for imprisoning those responsible for war crimes as a necessary step in preventing war.

The town of Stolac's position on the front-line had made it an obvious target of Serbian artillery ever since the war In Bosnia begun. One particular morning In the summer of 1992 began with the usual Serbian bombardment. This time, the shells landed, but did not explode. They had been deactivated, and in one shell lay a hand-written message: "Dear neighbours: this is all l can do for you.".

I heard this anecdote from a refugee woman from Stolac the first time I went to Bosnia-Herzegovina iIn 1992. Five years later, I find myself in The Hague, among piles of papers on war crimes, and this story returns to me. It reminds me that someone - above and in spite of that anonymous disarming soldier and many others like him - had the power to choose bombardments, killings, and mass deportations.

The role of the tribunal

The International Criminal Tribunal for the Former Yugoslavia was established In 1993 by the United Nations Security Council with the goal of identifying, prosecuting and punishing those responsible for the war. It. legal tools are basically the laws of war and humanitarian international law. In contrast to War Resisters' International's principle, "War is a crime against humanity" (ie, any war), the laws of war consider certain warfare practices criminal and others legitimate, thereby allowing the possibility of a "just war".

The Tribunal is an institution without precedent since the Nuremberg and Tokyo trials of 50 years ago. It has faced widespread acclaim. Many observers expected ft would be satisfied with prosecuting a few minor perpetrators, while leaving the most guilty untouched. Some doubt was assuaged when the Prosecutor's Office issued indictments In 1995 against Karadzic and MIadic (political and military leaders of the Serbian forces In Bosnia), and against Blaskic and Kordic (notorious Bosnian Croat leaders). The Prosecutor's Office has stated repeatedly that the prosecution proceedings know no limit other than the available evidence.

Once the Tribunal had issued indictments and warrants, the problem became the arrest of those indicted. The first responsibility for arrest lies with the states in which they live. But because of the Involvement of these very states in the war, this system Is problematic. An arrest could also be made by international forces deployed in the area (eg the NATO-led forces), but this has its own set of problems and has not yet been successful.

The Tribunal's budget is also an issue. For the huge size of the Investigation and prosecution work involved, it suffers a great lack of resources. This leads to the limited scope of crimes examined and the slow pace of the proceedings. An obvious question arises: What's the point of establishing an International Criminal Tribunal if international leaders don't commit themselves to the enforcement of its arrest warrants, or provide the necessary resources to carry out its mission properly?

Universal principles

The ad hoc character of the Tribunal is in open contradiction to the universal essence of its laws: universal principles applied in a selective manner are no longer universal. Why is there a Tribunal for the former Yugoslavia. but not for all other, similar cases? The Yugoslav Tribunal did set a precedent - an International Criminal Tribunal for Rwanda was established after the genocide of 1994, but, sadly, received far less public attention and international support. The problem remains that such ad hoc tribunals fail to address the global Issues inherent in any serious examination of war.

One response to this problem has been the proposal to establish an International Permanent Tribunal (IPT) with world-wide jurisdiction. This Ides, first discussed after Nuremberg and Tokyo, has gained momentum again due to the experience of the two ad hoc tribunals. An IPT conference has been scheduled for June 1998 In Rome, and while it seems certain that such a tribunal will be established, the reach of its powers remains unclear.

Positive aspects

Among the most positive aspects of the Yugoslav Tribunal are its spirit of independence and its commitment to the defence of war victims. Unlike other international initiatives, the purpose of the Tribunal is not appeasement among politicians, but a truthful account of events. Its task is to call the crimes by their names and determine individual responsibility for those crimes. A whole field of discussion has been opened on the nature of these crimes: are they exceptional events or the predictable result of certain social and international models? The ideological, economic and political links between the system of nation-states and warfare extend far beyond the scope of this Tribunal.

As the proverb says, "It is better to foresee than to regret." Foresight and prevention of war crimes is possible through democratisation and demilitarisatlon. But prevention is not enough. Punishment for crimes already committed is the first step In breaking the cycle of impunity. It is also a necessary tribute to those, like that soldier from Stolac, who choose coexistence over war, even at the risk of their own lives.

Xabier Agirre Aranburu works as an analyst in the Office of the Prosecutor of the Intemational Criminal Tribunal for the Former Yugoslavia. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.
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