War Crimes in Yugoslavia: Peace or Justice

Morris B. Abram
Delivered by  to Webster University
Geneva, February 15, 1996

Let me thank you for inviting me here today to speak about war crimes, peace and justice. It is really a privilege for me to address you on this topic.

I’ll explain why.

First, it is especially appropriate to speak about this issue in Geneva, a city which is often called the City of Peace. Many of the most important peace treaties of the last two hundred years have been negotiated here, and it was here that the International Committee of the Red Cross was founded and is still headquartered, here that the League of Nations was established, and here that the bulk of the UNs really effective human rights machinery is now located. So, there is no more appropriate place in Europe to discuss the idea of peace.

But it is also a privilege to talk on this topic because of my own association with Nuremberg, Germany, and the war crimes trials that took place there 50 years ago this year. In 1946 the Regius Professor of Jurisprudence returned to Oxford from a visit to his friend, United States Supreme Court Justice Robert Jackson, then serving as Chief Prosecutor of the principal Nazi War Criminals at Nuremberg.

I questioned him: Could even Herman Goering be fairly tried by an international court of victors for war crimes, some not previously described, and in a setting so filled with ghastly memories? The Professor was enthusiastic about the careful due process the defendants were receiving and urged me to accept service on Jacksons staff and see for myself.

That I did, and during the months of working at the trial, receiving the documentation, reading the record and extracting evidence for subsequent trials in Nuremberg, I became convinced that the Professor was absolutely right.

So, I have long championed the cause of war crimes trials.

Today, I want to talk about the concepts of peace and justice and their relationship to the work of the International Criminal Tribunal for the former Yugoslavia in The Hague.

Peace and Justice are elusive concepts, so before going any further I am going to define them.

Peace, on the one hand, is the condition of tranquillity or quiet which most people yearn for in their day-to-day lives. In the case of the former Yugoslavia, the mechanism for achieving that peace is the Dayton Accord. It is hoped that this document will provide the framework within which the three main warring factions in Bosnia – the Serbs, Muslims and Croats – can reconcile their differences and put a permanent end to the bloody war there.

Justice, on the other hand, is a more difficult concept to understand. Its the subject of reams of jurisprudence literature, but I am going to adopt a fairly simple definition – I am going to use it in the sense of conformity with the law: in other words, where the law is obeyed, there is justice.

If these concepts are transposed to a former battlefield, a conflict can very quickly develop. Peace, as I have defined it, refers to quiet and tranquillity. Justice refers to the application of law. The pursuit of justice can easily disturb the quiet and tranquillity of peace.

That, of course is precisely whats happening in the former Yugoslavia. On the one hand, peace seems to demand that some of the political leaders who have been indicted by the tribunal – people like Karadzic and Mladic – not be handed over for prosecution right now. To do so, it is argued by some, would seriously disturb the delicate political balance that has been created by the Dayton Accord.

On the other hand, there are those who argue that the perpetrators of war crimes should not be granted any sort of reprieve for the sake of the political process. They argue that justice demands that those indicted by the international war crimes tribunals in the Hague by brought to trial as soon as possible. They say that peace without justice is not real peace. Rather, it is a dangerous state of affairs where conflict can easily erupt because grievances have not been dealt with and precedents have not been set.

The conflict between peace and justice is neatly illustrated by an incident that happened in Bosnia last week. The Bosnian government arrested two Bosnian Serb men – General Djordje Djukic and Colonel Aleska Krmanovic – who had strayed into Bosnian Government-controlled territory. The Bosnian Government suspected these men of the mass killing of civilians and alerted the tribunal, which then requested that the Bosnian government arrest them provisionally on behalf of the tribunal while it made a decision about whether to issue indictments. The Bosnian Serbs were very disturbed by these arrests and, as a result, threatened to stop cooperating with NATO. If peace were paramount, the men would be released so as to prevent political damage. But it looks like the cause of justice has held sway and the men will be handed to the tribunal if it indicts them.

Indeed, the Chief Prosecutor of the war crimes tribunals, Justice Richard Goldstone, is clearly part of that school which sees the pursuit of justice as generally paramount.

Let me read you a short extract from a speech which he gave at the UN Watch Annual Lecture last year. It neatly illustrates his position:

“We have started indicting the guilty, the leadership including Radovan Karadzic and General Mladic. They have been charged with 16 counts, including genocide, crimes against humanity, and war crimes which cover instances of unlawful confinement, murder, rape, sexual assault, torture, beating, robbery, the sniping and mortaring of innocent civilians during the terrible years of the siege of Sarajevo, and the destruction of homes, businesses and places of worship. When I read that litany of offenses, I cannot help but wonder that there can be peace by giving people like those accused amnesties, and forgiving and forgetting what they have done. It is a wonderment to me that any politicians can even contemplate forgiving on behalf of victims who they have not even met. The very suggestion ignores the rights, the feelings and the calls for justice of hundreds of thousands of victims in the former Yugoslavia.”

In my opinion, Justice Goldstones stance is absolutely and unequivocally right. Those indicted by the tribunal must be pursued wherever and whenever it is humanly possible. Short term political gains should not unnecessarily interfere in that process.

There are, I think, several very important reasons as to why this is so. First, there is the importance of setting precedents. It is very important that people see war criminal being punished so that they are not tempted to commit the same crimes later, themselves. This is especially so in Bosnia – there are a number of people at large who have yet to be indicted by the war crimes tribunal but have probably committed heinous crimes. Right now, the behavior of these people is fairly restrained because NATO forces are in place – but when NATO leaves at the end of this year, their behavior will, to a degree, be determined by how seriously they take the tribunal. While they know that there is a good chance of prosecution if they are caught committing war crimes, they are less likely to offend on NATOs departure.

We need now to think about the fact that we are even debating whether law should be enforced. In domestic society, criminal law is enforced as a matter of course; when a person commits a crime and is caught, we do not stop to question whether political expediency should excuse prosecution – the fast that he will be prosecuted is taken for granted. Imagine society if this were not the case; if laws were not enforced, or only randomly enforced, criminals would roam the streets, robbing, raping and murdering at will.

But how does this relate to the situation in international society? Before 1921, war was not illegal – International Law only dictated how to carry out wars. But in 1921 war was outlawed by the Kellog-Briand Treaty. Alongside of that rule a whole body of law – International Humanitarian Law – has grown up which makes a range of conduct during war punishable as a criminal offense.

Of course, International Humanitarian Law has seldom been enforced. Indeed, since the trials in Nuremberg and Tokyo, there has not been one successful conviction of a war criminal. Yet in the same period millions have been slain and maimed under condition which would have seen hundreds of mass murderers, human butchers and environmental despoilers (just reflect on the terrible fires willfully set by Saddam Hussein to the oil fields of Kuwait) called to the gallows or prison under the terms of the Nuremberg Charter.

Meanwhile, a UN International Law Commission has struggled for 50 years to write a treaty to establish a permanent International Criminal Court. Finally a draft is in the hands of the General Assembly. It may be years before it emerges with a stamp of approval and more years before the authorizing treaty is widely ratified by hesitant states and a “treaty court” is established and at work.

Then finally growing out of the repellent war in the former Yugoslavia came a novel approach to international criminal justice.

Bypassing the stagnant efforts to create a permanent international criminal court, the UN Security Council by resolution established an ad hoc tribunal to bring to justice those charged with Nuremberg type crimes committed since 1993 in the former Yugoslavia. The tribunals jurisdiction has since been extended to Rwanda.

The power to establish such a court, to confer a mandate and to equip it with the necessary machinery was inventively found in Chapter VII of the UN Charter, relating to the Security Councils power to maintain “international peace and security”.

So, here at long last we have a tribunal that will, hopefully, provide strong follow-up to the Nuremberg precedent set half a century ago. If it succeeds, international society will, perhaps, become like domestic society. War criminal will be encourages to desist from their terrible crimes because the laws against war crimes will be enforced.

Thus, its not just for Bosnians alone that we must pray for the war crimes tribunal to succeed in its unenviable task. For the sake of humanity, we must allow the war crimes tribunal a chance to show that complete anarchy no longer rules the lives of those unlucky enough to find themselves on a battlefield.

There is, however, a second and perhaps even more important reason why the pursuit of justice is so important. And that is because, as Justice Goldstone has often remarked, it allows the world to hear the truth. Bosnia is full of victims of violence. Many of them are crying out for justice against their tormentors. The only way to heed such a cry is to give these victims the chance to tell their story to the world and have the world, in turn, acknowledge their pain. The process is essential to the rehabilitation of these people – if it does not take place, the cries for justice will soon turn to cries for vengeance and the cycle of violence that has engulfed Bosnia for so long will begin anew.

So, I am making a plea for the pursuit of justice. But is this actually whats happening on the ground? I am pleased to say that the Dayton Accord deals with the issue in a reasonably fair way. Those indicted by the tribunal have not been granted amnesty under the Accord, though neither must they be handed over. While they remain in a territory controlled by a sympathetic government, the only restriction on their freedom is a ban on the holding of political office. However, NATO forces have the authority to arrest indicted war criminals which they encounter during their mission. The tribunal also has the power to ask governments which recognize it to make arrests on its behalf, which is what occurred in Bosnia last week.

The pragmatists among you might question whether there are not instances where justice should bow to expediency. On that basis, some argue that only minor criminals should be put before the tribunal. Major political leaders, like Karadzic and Mladic, should be left alone because of the political fallout which will result from prosecuting them. But this is precisely the wrong approach. It is the major leaders that must, as a matter of priority, be hauled before the tribunal. These are the ones whose prosecutions will go some way to satisfying the victims thirst for Justice.

The war crimes tribunal in the Hague has many obstacles not present at Nuremberg: there has been no unconditional surrender as by Germany yielding the principal defendants for trial. The trial staffs are not sufficient to the great tasks and its funding is short. But if we are not to live in international anarchy with its awesome weapons it is vital that we dont relent. For the sake of Bosnia and of humankind itself, precedents must be set and justice seen to be done. Otherwise the peace in Bosnia will not be a real peace and the violence which has wracked that land will resume again, setting an awful example that will be followed by conflict-ridden people for generations to come.

UN Watch