In an attempt to create an American-style, multi-ethnic democracy
in the Bosnia-Herzegovinian rump of the formerly multi-ethnic dictatorship
of Yugoslavia, American negotiators brokered a complex series of formal
undertakings known collectively as the Dayton Accord.
This Accord was initialed by representatives of the Muslim-dominated Republic
of Bosnia- Herzegovina, whose authority is rejected by its Serbian minority;
by the Serb-dominated Federal Republic of Yugoslavia, which denies that
it is involved in the Serb resistance to the nominal government of Bosnia-Herzegovina,
but which was authorized by the leaders of that resistance to speak for
them; by the Republic of Croatia; by a representative of the European Union;
by the United States; and -- apparently redundantly since they are members
of the European Union -- by France and the United Kingdom as well. This
great abundance of intialing occurred on November 20, 1995, at Wright-Patterson
Air Force Base near Dayton, Ohio, and was later rendered legally binding
by a formal signing in Paris on December 14 of that year.
As written, the Accord presumes
that a legal authority resides in the United Nations Security Council to
act in cases of internal conflict. It assumes further that enforcement
of the international laws of war by the community of nations is consistent
with the current international legal order of separate states. Both bases
for supporting the Dayton Accord to be legally binding are dubious.
Under the United Nations Charter, itself a binding treaty,
the Security Council can require action from the members of the United
Nations in accordance with judgements rendered by the International Court
of Justice (Article 94.2), as well as in reaction to a "threat to the peace,
breach of the peace, or act of aggression" (Article 39). But
the war crimes tribunal at The Hague is not the International Court of
Justice (ICJ). Aside from a preliminary judgement in July 1996 accepting
jurisdiction in a case against the Federal Republic of Yugoslavia by the
Republic of Bosnia and Herzegovina, not to be argued in substance until
1997, the ICJ has uttered no judgement whose implementation in the Balkan
area is in question. Moreover, unless the Security Council itself makes
a determination relevant to international peace and security, no
organ of the United Nations is authorized by the Charter to "intervene
in matters which are essentially within the domestic jurisdiction of any
state" (Article 2.7).
Suppose the military struggle within the Bosnian "state"
were legally a "civil war", as indeed seems to be the case. To assert that
a civil war is by its nature a threat to international peace and security
-- however distasteful its rationales might seem to those standing outside
the struggle, and however much governed it may (or may not) be by the laws
or war observed internationally -- is to try to make revolution illegal.
If all states were well-governed today, or if stability were the overriding
aim of international politics, such a proposition might be desirable. But
as things are, that seems ill-based. Certainly, the
Bosnian armed struggle itself cannot be called "international" by
those who argue that a Bosnia-Herzegovina that incorporates its former
Serb population with its designated territory preserves a historical unity.
Nor, except in an inconsistent attempt to gain legal control over it, have
the parties to the Dayton Accord accepted the international personality
of the "Republika Srpska", the Serb organization fighting for independence
in the territory of Bosnia-Herzegovina; and that organization is not represented
in the United Nations, except by the very government against which it is
rebelling. The government of the Serb-dominated Federal Republic of Yugoslavia
denied that it represents the Bosnian Serbs in the United Nations, and
says that it does not want to expand at the further expense of Bosnia-Herzegovina.
Nontheless, the Security Council acted. It determined
that the conflict in Bosnia was a threat to "international" peace and security.
If the Security Council, by its
own vote, can categorize events in such ways as to avoid limits on its
own authority placed there by those submitting to that authority, a radical
change in the structure of the United Nations will have been achieved.
It is a change that few members of the United Nations would agree to, other
than the five great powers that have the protection provided by vetoes
in the Security Council. If the Security Council were to use the case of
the former Yugoslavia as a precedent, defections from the United Nations
might well result, threatening collapse of the organization as a whole.
The alternative -- regarding the case of the former
Yugoslavia as unique -- undermines the universality of the rule of law
and the notion of the sovereign equality of states on which the organization
is based (UN Charter, Articles 1.1 and 2.1). It is very difficult
to understand how the authority of the Security Council to determine that
a civil war constitutes a threat to international peace can be supported
by people interested in the rule of law.
The War Crimes Issue
Meanwhile, the Security Council authorized a complex new
organization centered in The Hague whose function is to bring "war criminals"
of the military struggle in Bosnia- Herzegovina to "justice" (Resolution
827 of May 25, 1993). Why it did so is unclear. There is no evidence that
holding "war crimes" trials will limit existing threats to international
peace and security; making "war" less atrocious (even if that were possible)
is not likely to limit the causes of or impetus to "war" -- if anything,
the opposite would more likely be the case. Instead, the
creation of a war crimes tribunal seems to have been aimed at making lawyers
and "guardians" of a violent society, in which war is all right as long
as it is played by rules to which the concerned lawyers can agree.
Since lawyers are not elected and represent only their
clients, and since the selection of judges is subject to the same political
pitfalls that line the route to all elected legislative and political positions,
it is hard to understand why setting up the tribunal would be a step toward
a future less threatened by violence. Indeed, it seems obvious that the
politically chosen members of the Security Council regarded their action
in authorizing The Hague tribunal for Bosnia as a
strictly political act. They made sure
that only atrocities by participants in the actual struggle in the former
Yugoslavia would be within the tribunal's purview; their own activities,
even as armed "peacekeepers" there, are not. It is
likely to the point of certainty that the political leadership of none
of the permanent members of the Security Council -- the United States,
United Kingdom, France, Russia, and China -- would submit its own political-military
decisions, including possible atrocities committed by members of its armed
forces, to the judgement of outsiders. Would Russia agree to allow
a "neutral" tribunal to judge the conformity to an asserted international
law of the acts of individual Russians relating to Chechnya? Chinese to
Tibet? United Kingdom officials to Northern Ireland? U.S. officials to
the Branch Davidian compound in Texas?
Does the international legal order then leave us helpless
to ameliorate the evils wrought by the participants in a civil war? The
answer is clearly no. But the ameliorations cannot be wrought by third
party intervention, even if they are called "community" action.
In using the Security Council to erect a war crimes tribunal
at The Hague, the U.S. government not only agreed that the authority of
the Security Council extended to "war crimes" were direct violations of
"international law", and could be tried by an international authority.
The parties to the Dayton Accord agreed "to cooperate in the investigation
and prosecution of war crimes and other violations of international humanitarian
law" not only in the traditional ways that law is applied, but as "otherwise
authorized by the United Nations Security Council" (General Framework Agreement,
Article IX). As noted above, the Bosnian Serbs, now calling themselves
the Republika Srpska, are not parties to the Framework Agreement; their
supposed commitment to it is derived from a separate agreement dated August
29, 1995, under which the Federal Republic of Yugoslavia was reportedly
authorized to sign on behalf of the Republika Srpska those parts of the
peace plan concerning the Bosnian Serbs. Since the Republika Srpska considered
an international person by any of the parties to the Framework Agreement,
it is not at all clear why anybody regards that Republika as legally bound
by anything concluded internationally, or why an internal document of the
Federal Republic of Yugoslavia, if that is what the "agreement" is, is
regarded as governed by international law. What the U.S. negotiators wanted
is clear; whether the law would permit them to achieve it in this way is
more than doubtful.
But things get worse. In annexes to the Framework Agreement,
too, cooperation with the Security Council's efforts was promised, "including
the International Tribunal for the Former Yugoslavia" (Annex I, Article
X): "All competent authorities in Bosnia and Herzegovina" must "cooperate
and provide unrestricted access to... the International Tribunal for the
Former Yugoslavia; and any other organization authorized by the UN Security
Council with a mandate concerning human rights or humanitarian law"(Annex
6, Article XIII.4).
Presumably, the annexes' expression "Bosnia and Herzegovina"
was intended as a geographical expression, not a political one, so the
undertaking should be binding on whoever (other than United Nations forces)
controls the territory. The parties to the annexes quoted are the Republic
of Bosnia-Herzegovina, the Federation of Bosnia-Herzegovina (the Muslim-Croat
part of the Republic), and the Republika Srpska (the Serbian organization
regarded by the framers of the Dayton Accord as part of Bosnia- Herzegovina).
Of those, only the first is a party to the Framework Agreement. The Federal
Republic of Yugoslavia (the existing Serbian state) is an "endorser", a
term left undefined in the published documents.
The agreement as a whole was apparently intended to bring
the political leadership in Bosnia-Herzegovina under the authority of the
tribunal at The Hague, thus establishing a "community" authority on war
crimes superior to a nation's traditional authority to define and administer
criminal law under its own constitution. But it is legally unclear that
the parties to the Framework Agreement, who have no rights or obligations
under the annexes, can claim any special role in their implementation.
Moreover, the failure of a party to an annex to fulfill its apparent commitment
is not a "crime" under international law; it is only a possible "breach
of contract." As in our own domestic law, the remedy for a breach of contract
lies with the party injured by the breach; that party can bring suit. It
does not, and cannot, lie with a non-party who would like to supervise
the performance of a contract to which it is itself not bound.
The attempt to use the forms of law to bring peace to
the Balkans has apparently seized the imagination of experienced and superbly
competent statesmen like Cedric Thornberry, a British
lawyer, former assistant secretary-general of the United Nations,
and deputy head of mission of UNPROFOR in the former Yugoslavia during
1992-94. In his recent FOREIGN POLICY article "Saving the War Crimes Tribunal",
Thornberry notes some of the weaknesses of the process,
such as targeting some Bosnian Serb leaders -- but not the equivalent Croat
and Muslim leaders whose followers have committed atrocities. He
argues nonetheless that the process itself is sound. But it is doubtful
that the process is sound, and he seems unaware that the legal order provides
more effective alternatives.
A Failed Precedent
There is a frequently cited precedent for using a legal
tribunal and the notion of war crimes to bring "justice" to a legal order
that seems incapable of enforcing the rules outsiders regard as vital:
Nuremberg. But the precedent
fails because the two situations are not analogous.
Nuremberg was a victors' tribunal;
there were no "neutrals" involved in the prosecution or on the judges'
bench. The Hague tribunal is supposed to be "neutral."
Nuremberg was in the middle of Germany and its greatest
success was in exposing to the German people themselves the atrocities
that had been done in their government; it was part of a course of education
that has had an enormous impact on German society. Contrarily; the Hague
tribunal is about 750 miles from the scene of the atrocities and is widely
viewed in the former Yugoslavia as a game being played by outsiders lacking
a firm grip on local reality.
At Nuremberg, the Nazi archives were open to the defense
as well as to the prosecution, and the need for Allied secrecy barely inhibited
the ability of the defense to present evidence; indeed, some acquittals
were based on the evidence. At the Hague, the documents and testimony needed
for an effective defense are hard to expose and bring to the tribunal;
there is no reason to expect the Bosnian Serbs to publish their internal
records, and no reason to think that the Serbian Serbs would want those
records, or their own Cabinet minutes that might reflect those records,
exposed. Nor is there any reason to expect the Bosnian Muslims or Croatians
to volunteer their own records, which might exculpate some low-level defendants
by incriminating higher-level officials.
It is also frequently forgotten that a series of trials
equivalent to Nuremberg was held in Tokyo, resulting in a major dissent
(by the Indian judge), partial dissents (by the Dutch and French judges),
and a separate opinion (by the Phillipine judge). For
fifty years now, the Nuremberg "precedent" has not been followed. Before
the precedent is revived, it would be wise for those arguing for it to
check the reasons why it was not deemed persuasive to some at Tokyo, or
to many people for fifty years afterwards. The weakness of the Nuremberg
precedent was certainly seen by the defendents at The Hague, even if not
perceived by the prosecution.
The defendents' first line of defense was an attack directly
on the authority of the Security Council to establish the tribunal, which
was predictably rejected by the judges of the tribunal itself, who based
their opinion on the presumed authority of the Security Council. It is
hard to imagine anybody being suprised by the judges's attitude.
On a deeper level, one may question the assumption that
the atrocities committed in the former Yugoslavia are violations of "international
law", which by treaty and custom requires belligerents to forbid and punish
defined military atrocities, but does not directly apply to individuals
or authorize third-party tribunals to pass judgement on them unless submission
to such tribunals is agreed by the belligerents themselves. The point is
that international law is not directly enforced by criminal process, but
international law can be said to require national criminal law to forbid
and punish some particularly atrocious acts by individuals acting for a
political purpose as part of an organized military force.
The international laws of war derive from state practice
and from treaties. Until now those laws have been enforced only by tainted
victors' tribunals and national or factional tribunals conducted by the
belligerents themselves. The U.S. trial of Lieutenant William Calley over
the My Lai massacre also treated some violations of internationally agreed
rules as crimes under American military law. His immediate superior in
the Army, Captain Ernest L. Medina, was acquitted. No third party tribunal
was considered competent to hear any aspect of either case. The
"international community" might be disgusted by the facts in the former
Yugoslavia (or might not -- most members have
atrocities in their own recent history that they prefer be ignored).
But disgust is not a basis for "jurisdiction to enforce" of "jurisdiction
to adjudicate" in criminal matters in any country or in the international
"Jurisdiction to enforce" is a legal concept that requires
that arrests be made within the territory or ship or aircraft or other
similar place that can be assimilated to the territory of the arresting
state. That is why, when U.S. agents "arrested" Fawaz Yunis, a Middle Eastern
"terrorist", on board a Cypriot vessel, the agents first dragged him off
the vessel, performed the formal "arrest" in an American ship, and then
claimed that he had been apprehended on the high seas, as if clinging to
a driftwood raft.
"Jurisdiction to adjudicate" means that there must be
some national interest in the trial to support a state's application of
its own criminal process to the facts: either the nationality of a victim,
the location of the offense, the nationality of the accused, a substantial
impact within the territory of the state purporting to run the trial, or
some similar link. It was by this principal that the United States strongly
protested West Germany's refusal to extradite Mohammed Ali Hamadei to the
United States in 1987 to face trial for the 1985 murder of an American
in a hijacked, American- registered aircraft on the ground in Beirut. Although
Germany asserted that his offense was "universal" and a trial there would
be legally proper, no particular German interest had been involved in Hamadei's
The analogy between war atrocities and "universal offenses"
such as "piracy" or the slave trade does not relate to jurisdiction to
enforce or to adjudicate, but only to the applicability of national criminal
legislation: the reach of so-called "jurisdiction to prescribe." And, even
there, the extension of a national jurisdiction to make criminal the acts
of some foreigners outside the territory of the prescribing state has been
much exaggerated by scholars unfamiliar with the actual cases and equally
unaware of the dismal record of failed attempts to codify the supposed
international criminal law relating to "piracy" or the international slave
The tribunal at The Hague seems
to translate the laws of war into a universal criminal law system. The
reasons why this is unprecedented have nothing to do with lack of desire
on the part of the powerful to impose their views of law on others. The
reasons are related to the structure of international society, namely to
the refusal of any state to submit its own troubles
to the judgement of outsiders who refuse to apply the same processes to
A Better Way: Four Suggestions
So what should be done by civilized humanity when it is
faced by atrocities perpetrated in a foreign civil war?
There are at least four alternatives. The FIRST is to
bring our notion of the existing international legal order closer to the
realities of the existing international system. If, for any reason, international
tribunals are not acceptable or not feasible, then policy can still be
influenced by exposure. Expose, through "truth commissions", if properly
constituted and publicized, can provoke outrage. Outrage can trigger moral
suasion and economic sanctions of the sort that reformed Germany and changed
the constitution of South Africa. The Dayton Accord can be better attuned
to reality by dropping its insistence on punishing war crimes under a hypothesized
but non-existent international criminal law, and reconstituting it to be
persuasive in the international moral order. The impact of this approach
on the accused "war criminals" is not to submit them to a misconceived
"criminal" process, but to confine them to territory controlled by their
constituents; the "Kurt Waldheim" solution -- by which the former secretary-general
of the United Nations and president of Austria, a possible but not proven
war criminal, is effectively confined to the territory of Austria, -- works
not because he is threatened with arrest and prosecution, but because nobody
he respects will grant him a visa.
SECOND, erect a criminal law tribunal that can be supported
by the belligerents and can supply the safeguards necessary to assure the
"human rights" of the accused, including their right of access to whatever
evidence is necessary to mount a rational defense. That can be done withing
the existing legal order, although not by the Security Council of the United
Nations. To establish such a tribunal, the cooperation of the Bosnian Serbs
would be necessary. Rather than including only the
leaders of the Bosnian Serbs and the lower-level villains of Croatia and
the Bosnian Muslims, the cooperation of all should be sought so as to make
possible the indictment of the equivalent leaders of the Serbian Serbs,
the Bosnian Muslims, and the Croatians. It might be very distasteful to
deal with people whom our negotiators regard as villains, but a
consistent effort stands a better chance of
ameliorating the miseries of the former Yugoslavia than the
current hypocritical attempt to criminalize
the acts of some but not all of them.
THIRD, reinstitute the traditional legal remedies for
atrocities in war: hand over accused "war criminals" to one or another
of the parties concerned in the struggle, those whose legal orders clearly
have "jurisdiction to adjudicate." Each side should,
in its own moral and legal interest, punish its own villains. Each
side has an interest in observing human rights safeguards when trying accused
villains of an opposing faction. Provision can be made in accordance with
the 1949 Geneva Convention to "hand over" an accused villain to one of
the belligerent powers and to assure that human rights safeguards, "protecting
power" observers. Red Cross visitations, and other humanitarian institutions
are put and kept in place.
FOURTH, do nothing. It is just possible that some of the
parties necessary to effect any real settlement in the former Yugoslavia
are not yet ready for peace. If that is so, then any "peace" that we impose
can be no more than a facade. In the meantime, humanitarian aid can continue
to be rendered to the victims of the conflict and other pressures maintained
to encourage a stable settlement.
The insistence on using the tragedy of the former Yugoslavia
as a reason for establishing an international court seems to rest on the
assumption that peace is impossible without justice. But "justice" is itself
not assured by any human tribunal. It might be useful to remember that
Plato wrote in Book I of 'The Republic' that good people would not want
to be "guardians", that they would rather have to be compelled to perform
such a role (although by whom and how are not made clear ). Those who believe
that a legal tribunal is useful to assure justice, and that justice is
a prerequisite to peace, would do well to ponder the alternatives and whether
all those who speak publicly of the need for such one-sided "justice" really
have in mind justice as seen by outsiders. The tribunal's
role seems much more closely related to a struggle for authority over parts
of the former Yugoslavia, or, indeed, control by Great Power or UN officials
or lawyers over international affairs, in disregard of the imperatives
and risks of representative democracy.
In sum, whatever one thinks of it in other respects, the
Dayton Accord's emphasis on Security Council authority and an international
tribunal to enforce a misunderstood version of the laws of war should not
be supported. The tribunal in The Hague should be
disbanded. It is time to move on to things that might really help
develop peace and a sense of responsible order in the former Yugoslavia.