Following World War II, a war crimes tribunal was held in Tokyo to try Japanese
political and military leaders. There is no doubt that the defendants were responsible for
appalling atrocities, but, as the Indian judge on the tribunal wrote in his dissenting
opinion, the victorious allies had themselves committed grave crimes, and the U.S. atomic
bombings of Hiroshima and Nagasaki were the most horrific war crimes of the Pacific War.
But only the atrocities committed by the Japanese were punished. In short, the war crimes
trial represented "victors’ justice."
In recent years there has been an effort to establish an International Criminal Court,
a body that could prosecute serious crimes against humanity no matter who committed them.
In multilateral talks, the United States did its best to weaken the authority of such a
Court, and then in 1998 was one of only seven countries — along with Libya, Iraq, and
Israel — to vote against its establishment, while 120 nations voted yes. Washington was
determined to make sure that it would never be subject to the rule of law.
Earlier the UN Security Council set up two specialized war crimes tribunals, one
dealing with Yugoslavia (set up in 1993) and one with Rwanda (set up in 1994). These
received Security Council backing because they were framed in such a way as to make
powerful states blameless. The enabling resolution for the Rwanda tribunal, for example,
was worded so that French citizens who shipped arms to the killers in Rwanda and the
French government could not be prosecuted.
Over the past six years, the International Criminal Tribunal for the former Yugoslavia
has indicted some 84 individuals for war crimes. But because the Tribunal is dependent on
others to provide it with evidence, not all those who have committed serious atrocities
have been indicted. In particular, the Croatian military leaders responsible for Operation
Storm, in which two hundred thousand Serbs in the Krajina region of Croatia were
ethnically cleansed — driven out, with many attendant killings — have not been indicted,
in large part because the United States, which aided the operation, has refused to provide
the necessary evidence.
The Tribunal has now indicted Yugoslav President Slobodan Milosevic and four other
Yugoslav officials. There is no doubt that Milosevic is guilty of gross violations of
humanitarian law. (I don’t know enough about the inner workings of the Yugoslav government
to comment on the culpability of the other four, but their positions suggest that they are
guilty as well.) But two questions still remain. First, is this still "victors’
justice"? And, second, what is the significance of the timing of the indictments?
The Tribunal was set up by the Security Council, and the judges were chosen by the
General Assembly from a list prepared by the Security Council. So far, only one judge of
the 14 on the Tribunal has passed any judgment, the one who approved the prosecutor’s
indictment. The prosecutor is chosen by the Security Council on the nomination of the
Secretary-General. That the Security Council has any role here — rather than the General
Assembly alone — is undemocratic (because the Council represents and gives the right of
veto to the powerful), but it’s fair to say that the Tribunal is not simply a pawn of the
United States. Nevertheless, there are two respects in which the Tribunal does not
represent objective justice.
First, by being restricted to violations of humanitarian law in the former Yugoslavia,
some of the worst atrocities in the world are ignored. Thus, U.S.-led sanctions against
Iraq that have taken such a tremendous human toll are immune from criticism, as are
massacres in Turkey, East Timor, and elsewhere.
Second, even focusing on current events in Yugoslavia, Milosevic’s are not the only
atrocities that warrant condemnation. NATO is now openly targeting the civilian
infrastructure of Serbia, a war crime. In early April, Human Rights Watch warned NATO to
take care to minimize civilian casualties, but the only change in NATO policy has been to
further remove bombing restrictions. And the United States is using cluster bombs which,
as Human Rights Watch has noted, are especially hazardous to civilians and refugees,
spreading deadly bomblets that are lethal for years to come (children are particularly
drawn to the volatile live remnants). It is rather odd to indict Milosevic and company for
three hundred odd killings and to remain silent about the several thousand civilian deaths
from NATO bombing — most not intentional, to be sure, but showing reckless disregard for
What is unprecedented about the Milosevic indictment is that it represents the first
time that a sitting leader has been charged with war crimes while those crimes are still
going on. In one respect, this is clearly a good thing: Better to try to stop atrocities
when they are happening than to remember them at memorial services. But there is reason to
be concerned that the indictments will add to rather than alleviate the humanitarian
crisis. Tribunal prosecutor Louise Arbour said as she brought the indictments:
Although the accused are entitled to the benefit of the presumption of innocence until
they are convicted, the evidence upon which this indictment was confirmed raises serious
questions about their suitability to be the guarantors of any deal, let alone a peace
Such thinking, if accepted by NATO leaders, rules out any diplomatic solution to the
war, and would require a ground invasion and the overthrow of Milosevic. The overthrow of
war criminals is always welcome, but those who would suffer most from any such invasion
would be the Kosovars, both because it would provoke more Serbian atrocities against them
and because of the sharply increased "collateral damage" that a NATO ground
campaign would entail.
Does that mean that negotiations should be held with lying, brutal war criminals? Yes,
Clinton must be involved in negotiations, as must Milosevic. If leaders are excluded from
negotiations because they are criminal, there would never be any peace talks. And the
alternative to such talks is a fight to the death — the deaths of many innocent people.