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 four 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 non-combatant casualties.
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 agreement.
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.