Dayton, Bosnia and the Limits of Law

by Professor Alfred P. Rubin
Published in "The National Interest"
Number 46, Winter 1996/97 

For fair use only
Published under the provision of
U.S. Code, Title 17, section 107.

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. 

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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. 

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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 community. 

"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 offenses. 

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 trade. 

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 themselves. 

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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. 

Alfred P. Rubin is distinguished professor of international law at the Fletcher School of Law and Diplomacy at Tufts University.

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