What is a war crime?

Televised images of horror in the former Yugoslavia have been confronting us for nearly two years now, and the term ‘atrocity’ has been widely used. Are the ‘atrocities’ no more than the inevitable face of war or are they something over and above that? Once fighting starts, are there limits to what is acceptable or do our reactions stem from some inadequately examined and perhaps inappropriate sense of innocence and guilt? As the newly sworn-in members of the UN War Crimes Tribunal meet to discuss the rules of procedure, we must be sure we know what such a tribunal can and cannot do and why it has been created.

A court with power to punish is not created for purposes of public relations. It is not there to apportion moral blame, whether for starting the war or for actions committed during the fighting. Nor is it there to decide who committed the most atrocities, but to identify and punish those individuals criminally responsible for specific actions. This has profound implications for the kind of evidence which will be required. Human rights organisations generally focus on the harm caused to the victim, but it is not enough for a criminal tribunal to prove that X was raped, her grandmother murdered and her brother and father mutilated and killed. That is evidence that a crime was committed: it tells you nothing about who committed it. Insofar as the tribunal is able to punish individual perpetrators, it is unlikely that it will do more than punish a tiny proportion of them.

More fundamentally, such a tribunal raises questions about conduct in war. In international law, rules exist which regulate the conduct of hostilities. Those rules apply to all the parties, irrespective of who is legally responsible for starting the fighting. Different rules regulate the resort to armed force. The sceptic may question whether these rules are of any practical significance. In fact, they derive from a moral recognition that war might legitimate some killings but not necessarily every killing. Even in war, it is possible to avoid inflicting unnecessary suffering.

In the context of the former Yugoslavia, it is possible to distinguish between those actions which form a regrettable part of war and those for which no justification can be found. ‘Innocent’ civilians have been and will continue to be killed in war; the death of a child is not necessarily a war crime. What is unlawful is intentionally to target a civilian or to attack a legitimate target in an indiscriminate way. It is also unlawful intentionally to starve civilians or to subject anyone to torture or rape.

The conflicts in question have been marked by unnecessary killings and wanton destruction. One explanation, but not a legal justification, for this is to be found in the notion of ‘ethnic cleansing’. Had its object been merely territorial acquisition, the war could have been fought according to the rules. If the object in this conflict was, as it seems to have been, to acquire territory minus a certain section of its indigenous population, it is difficult to see how that could have been carried out by lawful means. In some instances, indeed, the process has been taken a stage further: there have been attempts to erase any evidence that the ‘cleansed’ population was ever there.

Some would respond to this by saying that atrocities are inevitable in a ‘civil’ or ‘ethnic’ war; but the label ‘civil war’ may even have been chosen by outsiders in order to justify a prior decision not to intervene. Branka Magas asserts that both the war in Croatia and that in Bosnia-Herzegovina are wars of aggression by Serbia, fought with the assistance of local Serbs. Others would claim that they are internal uprisings, given political and logistical support from Serbia. Whether or not the conflict is seen as one between two states or as a civil war, to call the Government forces in Bosnia-Herzegovina Muslim is inaccurate. For a long period, the head of the Bosnian Armed Forces was a Croat and military authority there is exercised by a tripartite group. The Bosnian forces include those who see themselves as Yugoslavs or Bosnians, irrespective of their ethnic origin, together with those who see themselves as Bosnian Serbs or Croats but who want to live in a multinational state, and Bosnian Muslims. But the multinational character of Bosnian institutions is showing signs of cracking under the strain, as evidenced recently by a meeting of a specifically Muslim ‘parliament’.

The fact that part of the international community accepted the diagnosis of the Bosnian Serbs was to prejudice the issue from the outset. The war could equally be seen as an act of external aggression, directed against a recognised member of the UN, whose constitution afforded minority rights protection and whose presidency was multinational. On this alternative diagnosis a recognised government has been abandoned in favour of a group which defines people by their national origin and is prepared to engage in atrocities in order to obtain territory cleared of unacceptable inhabitants. That is a betrayal not only of a recognised state but also of international law.

As well as recognition of ethnic minorities there needs to be a commitment to multinational states: this should be recognised by international law. Bosnia-Herzegovina should have been defended not just as a UN member but because of what it represented – an unusually mixed and, for the most part, unusually well-integrated multinational state. Was the defence of those values not in our own national interest, as promoting peace and stability in Europe?

But even if the conflict is characterised as a civil war, this does not mean that no rules apply. Rules exist which require combatants to distinguish between military (lawful) and civilian (unlawful) objectives, to protect the victims of war who pose no threat to the fighters and to avoid unnecessary suffering. Since the actions proscribed involve unnecessary harm, there can be no more reason to engage in them in civil wars than in international ones. There are often more such atrocities in civil wars because of the numbers of irregular soldiers involved, who are not subject to military discipline or a command structure. In the case of the former Yugoslavia, however, although there are marauding bands of thugs, the fighting appears to be organised up to a point. This suggests that no serious attempt to maintain military discipline is being made.

We can, then, meaningfully speak of there being war criminals in the former Yugoslavia. What, if anything, should be done about it? The possibilities range from doing nothing to judicial condemnation by a war crimes tribunal; compromise solutions might include leaving the parties concerned to try suspects themselves or executing without trial those believed to be responsible.

Execution without trial was originally the option preferred by the British to deal with the Nazi leadership after World War Two. It indicates disapproval but does not properly express the nature of that disapproval. There is a material difference between saying, ‘We have won, so we can do what we want with you,’ and saying, ‘You must be punished for the actions which you took, which broke universally applicable rules, essential to the maintenance of international order.’ Where the sense of outrage is not merely political but based on universal moral and legal norms, there is a need for legal process. Executions by the parties to the war would simply look like revenge and outsiders are unlikely to be in a position to carry them out. Similarly, leaving the parties to try individuals would almost certainly mean their doing nothing about alleged war criminals on their own side. Trying only those of opposing forces would again look like revenge. Any credible legal process, therefore, has to be international.

So it is not surprising that attention should now be focused on the main precedent for such a process: the International Military Tribunal held at Nuremberg in 1945. In the concluding chapter of The Anatomy of the Nuremberg Trials, Telford Taylor analyses the impact of the Nuremberg trials and concludes that they were necessary for reasons relevant today in the former Yugoslavia. Simply to shoot the defendants or leave the Germans to try them themselves would have been unacceptable, as would the holding of courts martial. There was also the perhaps unexpected benefit that the Tribunal helped to rebuild post-war relations between Germany and the West. Such a calling to account of individuals enables the past to be buried. Where there is no acknowledgment of wrong doing and/or redress, the sense of injury festers, as has been demonstrated recently in the case of the Japanese ill-treatment of prisoners in World War Two.

Taylor’s book gives ample evidence of the problems at Nuremberg. One of the biggest was the quadripartite nature of the prosecution. With the Yugoslav war crimes tribunal the single prosecutor proposed by the United Nations may avoid some of these problems. A further difficulty is that of reconciling different kinds of criminal proceedings. At Nuremberg the French and Soviet prosecutors, and the German defence counsel, were unfamiliar with the process of cross-examination. It will not be sufficient in the present case to adopt Yugoslav rules of procedure and rules relating to the admissibility of evidence. Determining which rules to apply is again, if for different reasons from those at Nuremberg, likely to give rise to argument. Difficulties which did not arise then but may well do so this time include lack of documentary evidence, problems in gathering the right type of evidence and the thousands of potential defendants. Even so, with a sufficient degree of commitment in terms of human and material resources and particularly of political support, these difficulties could be overcome. The recent appointment of a Prosecutor and the deployment of UN personnel to investigate atrocities, such as that at Stupni Do, suggests that some effort is now being made in that direction.

To condone the atrocities which, in some cases, have been witnessed by UN forces, is unthinkable. It is not enough, however, simply to hold a tribunal; it must also be a success, which means not only establishing fair procedures but dealing with those who gave the orders, as well as those who carried them out. As Chief Justice Jackson pointed out in his opening speech at Nuremberg: ‘Courts try cases, but cases also try courts.’

In the former Yugoslavia, the overriding difficulty facing the tribunal is how to secure the presence of the defendants. The Nuremberg trials followed the unconditional surrender of Germany. With the exception of Martin Bormann, all the defendants were in the hands of the Allies. Yet here again, it should be possible to design appropriate mechanisms. That there has been no unconditional surrender may be a difficulty, but it is also an advantage: no one will be able to accuse the tribunal of representing victors’ justice.

Nor should there be an amnesty for political leaders, even if they have to be guaranteed safe-conduct during the negotiations leading to a ceasefire. The deployment of peace-keeping forces, including civilian police, has precedents in Croatia and Cambodia. The civilian police must be mandated to carry out the investigations requested by the prosecutor and to arrest those against whom an indictment is issued. This will be the real test of the Security Council’s commitment to upholding the rule of law. If it is left to the parties themselves to surrender suspects on request, the system will not be able to operate fairly. The UN could use sanctions, or threaten to withhold recognition in any form from new ‘states’ until such time as they showed their respect for the indictments of the tribunal by surrendering suspects. Statehood is based on, among other things, a willingness to abide by the rules of international law, including judicial co-operation.

If the Security Council fails to demonstrate the requisite commitment to the tribunal, this will represent yet one more betrayal of the victims of the conflicts in the former Yugoslavia. Coming after the atrocities perpetrated in Angola, Liberia, Kuwait and Somalia, the message will be clear: the Security Council will wring its hands but is not prepared to do more.

It is vital that the tribunal should succeed, whatever the cost, because it is in everyone’s national interest to promote an international community that is able to function. This depends on some minimum level of respect being shown for the rule of law and for international peace and security. If the tribunal is seen to have failed, the signal to other potential war criminals will be more encouraging than if the UN had never set out on this road in the first place. If the Nuremberg Trials are thought to have been flawed because they represented ‘victors’ justice’, that would mean that you can’t hold trials if you win. The sceptics’ argument is that you can’t hold trials of this kind unless you win. Where does that leave the rule of law?