April 1, 1997

Will War Criminals Escape Justice?

By Morris B. Abram

President Clinton recently announced that NATO troops will not arrest war

criminals indicted by the International Criminal Tribunal for the former

Yugoslavia -- contradicting his previous pledges to cooperate fully with the

tribunal. His conciliatory suggestion that a permanent international

criminal court be established to pursue these culprits is incredible, given

that American backpedaling will likely douse the United Nations' 50-year

effort to create such body. Such a careless reversal of policy will do

far-reaching and enduring damage. Unless the U.S. and its NATO allies arrest

those indicted, the tribunal will be unable to fulfill Nuremberg's legacy of

war-crime deterrence.

This American policy shift could not have been more untimely.

Leniency toward those Serbs instrumental in orchestrating the Dayton peace

accord may have been understandable two years ago. But there is no reason

that the international community's hands should now remain tied. Certainly

in Serbia, recent political demonstrations have proved that there is a

viable opposition to President Slobodan Milosevic. Those protests, which

forced Mr. Milosevic to make concessions to pluralist elements within his

country, attest to the strength of the former Yugoslavia's pro-democracy

electorate. Rather than cultivate these seeds of peaceful democratic

society, however, the new U.S. policy will permit indicted outlaws such as

Radovan Karadzic and Gen. Ratko Mladic to remain in power, hiding behind

fronts for their policies of racial and religious incitement.

The Dayton peace accord, in which all parties pledged cooperation

with the tribunal, was largely a U.S. initiative. That's why it's so important thatthe U.S. continue to provide the leadership needed to fulfill the agreement's agenda. Now the world's only superpower refuses to lead NATO in arresting indicted criminals, because some soldiers may be harmed - a risk

police forces everywhere take daily.

Mr. Clinton's policy switch threatens to invalidate the work of the

tribunal the U.S. so vigorously sponsored. As a result, the slaughter of

tens of thousands will go unpunished, without even the balm of truth-telling

in the courtroom. One of the primary aims of the International Military

Tribunal at Nuremberg was to deter future aggression. This need for

deterrence has grown immeasurably as weaponry has become more sophisticated

and destructive and has fallen into the hands of scores of new actors.

Acting under Chapter VII of the U.N. Charter, the Security Council

established this ad hoc tribunal in 1993, in order to prosecute violations

of international humanitarian law committed in the territories of the former

Yugoslavia. This tribunal was an inspired innovation designed to sidestep

inconclusive efforts to create a permanent international criminal court by

treaty. By this initiative, the Security Council intended to establish a

framework of international criminal justice that would govern all U.N.

members without the torturous process of treaty ratification. Thus, renegade

states could not escape the tribunal's jurisdiction simply by refusing to

sign a treaty. The creation of this tribunal renewed the hope that

Nuremberg's legacy

would finally be fulfilled.

Instead, the tribunal has been stymied by NATO's refusal to arrest

war criminals. Only seven of the 75 individuals indicted are in custody, not

one of them arrested by NATO troops. The Office of the Prosecutor continues

to amass evidence and issue indictments. Former Chief Prosecutor Richard

Goldstone and his successor, Louise Arbour, have been vocal critics of

NATO's failure to arrest the chief culprits. The prosecution team has worked

responsibly: leading investigations, conducting searches, issuing

indictments and holding in absentia hearings under its Rule 61 (proceedings

that have publicized the charges and evidence against the accused and

prompted the issuance of international arrest warrants). Ultimately,

however, NATO must arrest the indicted war criminals if the tribunal is to

be effective.

A failed tribunal will also thwart efforts to create a permanent

international criminal court. After all, what is the use of such an

ambitious undertaking when the U.S. is faltering with an ad hoc system authorized and in place?

The tribunal for the former Yugoslavia may be our last chance to

validate Nuremberg's legacy. It must be given the opportunity to prosecute

leaders such as Mr. Karadzic and Gen. Mladic, who top the list of the 75

current indictees. For unless these instigators as well as their henchmen

are arrested and brought to trial, the tribunal will be a mockery. Just as

at Nuremberg, compromise with the perpetrators is unnecessary and immoral.

Failure to prosecute the key culprits will also have practical consequences.

The billions of dollars spent by the U.S. in the former Yugoslavia to date

will be have been wasted, as new conflicts led by these indicted but untried

leaders will resummon us to the arena, at ever greater costs. If the

tribunal fails, our hopes will be dashed, our confidence diminished and our

cynicism reaffirmed. It is now or never.

Mr. Abram is chairman of United Nations Watch and former U.S. permanent

representative to the U.N. in Europe.