MAKING RULES FOR WAR

SUMMARY: With the UN war-crimes Tribunal comes another attempt to limit the horrors that happen when people fight each other. Say it quietly, but this one may get somewhere. (The Economist, 11th-17th 1995)

The United Nations knows where the bodies are buried. The UN war-crimes tribunal at The Hague - the first big international effort to pass judgment on man's savagery to man since the Nuremberg trial in 1945-46 - has records of some 150 mass graves in ex-Yugoslavia, each holding between five and 350 corpses. For good measure, it knows of 900 prison camps in the region, and about 90 murderous paramilitary groups. It has 65,000 pages of documents, plus 300 hours of videotape, all computerised on CD-ROM. In mid-February it at last took the logical next step, by indicting 21 Serbs for what happened in a camp at a place called Omarska; the 21 include the camp's commandant, accused of genocide.

The Hague tribunal's problem is not lack of information. It is lack of political support. Consider one of its best pieces of

evidence: one of those mass graves. In 1991, the UN reckons, the Yugoslav National Army and Serb irregulars shot about 200 Croats from Vukovar (a Croatian town that had fallen to Serb forces), and buried them in a field at Ovcara. Such killings cannot easily be hidden from forensic pathologists - if they can dig. They cannot.

They have tried. In October 1993, a group of UN human-rights experts arrived in the Serb-controlled Krajina region of Croatia. The team was led by foreign experts from an organisation called Physicians for Human Rights, with about 50 Dutch army volunteers. The team had written permission to dig from the self-styled authorities of the "Serb Republic of Krajina" in Knin; they were housed in a former UN peacekeepers' barracks (which happened to back on to a training ground for Arkan's Tigers, one of the most notorious Serb death squads); they even managed to clear the ground at the Ovcara site.

So far, so good. But then they met the local Serb general. Beneath a portrait of Slobodan Milosevic, Serbia's president, the general suddenly withdrew permission to dig. Furious but powerless, the team had to leave. The grave is still undisturbed. That, in a nutshell, is the pattern for the efforts to set up a Balkan war-crimes tribunal: shocked outsiders, seeking justice and needing to be sure what has happened; self-protecting locals, anxious to keep their secrets. Still, the Hague tribunal plods on. The UN is setting up a second tribunal, with the same head prosecutor and appellate bench, for Rwanda. The Americans want to investigate the possibility of a third tribunal, for Iraq. One is a fluke; two a coincidence; three would be an institution. Will it happen?

In principle, the idea is splendid. After a particularly atrocious slaughter, an international tribunal finds out the facts and impartially pins the blame on the individuals responsible, not vaguely on whole nations. No long-lasting reconciliation between ex-enemies, after all, can come about without a proper accounting for war crimes; peace is built upon truth. Such a process re-establishes confidence in the rule of law. It should also deter future killers.

But only if it works. So far, the record is not encouraging. The Balkan tribunal's successes, such as they are, have been achieved by sturdy individuals in the face of fitful interest (America), foot-dragging (Britain, France, Russia) or outright obstruction (the accused parties). Supporters of a Rwanda tribunal, noting the experience of the Balkan one, are nervous. If such tribunals are to become a part of the international landscape, governments must provide something better than their current lip-service.

Will it be a Leipzig or a Nuremberg?

The first modern experiment with a war-crimes tribunal, in Leipzig in 1921, was a debacle. After the first world war, the treaty of Versailles included four articles on the punishment of German war criminals, including Kaiser Wilhelm II. "Hang the kaiser!", people shouted.

But more sober voices counselled caution. It would be wrong, they (correctly) said, to let the search for impartial justice come to look like the victors'revenge. And it would be a pity if the passions aroused by a trial upset Germany's chances of making a

calm post-war transition to democracy. In the end trials were held, in Leipzig; but, of 901 cases, 888 were either summarily dismissed or resulted in acquittal. The kaiser, unhanged, died in exile in Holland.

What lessons were to be learned? First, a war-crimes trial can have undesirable side-effects. Second, therefore, if a trial is to get off the ground, a few great powers must seriously decide that it is worthwhile. That happened a world war later. The idea of a war-crimes tribunal had not been discredited by Leipzig. In 1943, in the middle of the second world war, the allied powers fighting Germany, Italy and Japan set up a commission to investigate their enemies' crimes. it had a tiny staff, little money and no investigators. It spent its time arguing about the law, not chasing war criminals. Even so, the 1942 decision foreshadowed the post-war trials in Nuremberg and Tokyo.

Those tribunals, unlike the present Balkan one, had great power. Germany and Japan were shattered and occupied; the allies could do whatever they wished. And these courts already had their accused men in custody. The Nuremberg one - with over 100 prosecutors and a staff of 2,000 - went right to the top of the German hierarchy. No fewer than 22 top Nazis, including Hermann Goering, Julius Streicher, Rudolf Hess, Hans Frank and Joachim von Ribbentrop, stood trial. Three defendants were acquitted; 12 were sentenced to hang.

The Nuremberg trial sought to lay down several principles. one of them - that aggression is a crime - has not endured: the Hague tribunal looks at crimes committed in war, not at the act of starting a war. Two other notions emerging from Nuremberg have lasted better. Most people now accept that to already existing offences (such as shooting military prisoners) there should be added the concept of crimes against humanity, the mass murder of civilians. The Nuremberg trial also ruled that it was no excuse to plead "I was following orders."

Although the Nuremberg and Tokyo trials were criticised by some as winners-versus-losers justice, they seemed to have started something new. But then Realpolitik, in the shape of the cold war, intervened. In a world divided into communist and non-communist camps no bloodiness - not even the staggering crimes of the Khmers Rouges, shielded as they were by China's veto in the UN Security Council - could be brought to globally accepted justice.

On America's urging

Now a new attempt is being made in The Hague. The Balkan tribunal is no Nuremberg. The wars of ex-Yugoslavia rage on; atrocities are still being committed; those who commit them are mostly beyond the tribunal's present reach. And the demand for justice is less than full-throated. Only the United States has given even moderately consistent support to the Hague operation. Other countries have argued sotto voce that the pursuit of justice might clash with the desire to negotiate an end to the war. It is tricky, they say, to bargain with one hand and indict with the other. Britain, report American diplomats and some of the tribunal's people, has been particularly sticky.

The tribunal, in fact, has had only one powerful friend, the United States. That is a mixed blessing, given that the Americans are increasingly critical of much of the UN'S other work (and are about $600m behind in their UN dues). It is no surprise that the tribunal's creation, first mooted in 1992, has been a long series of near-death experiences.

"You see all sorts of things that are clearly designed to make the tribunal not get off the round," says Cherif Bassiouni, a law professor in Chicago and the American member of the "commission of experts", the body set up by the UN to compile evidence for the tribunal. Mr Bassiouni blames Britain and other European countries for interfering with the tribunal, often through the UN bureaucracy. Some of the resistance has been overt, as when UN officials told the commission not to pursue Mr Milosevic or Radovan Karadzic, the leader of the Bosnian Serbs. At other times it was more subtle, as when the UN'S office of legal affairs held up the commission's funding.

In that case Mr Bassiouni, indignant, arranged for the money himself. $1.4m from the Soros and MacArthur foundations, plus voluntary donations from governments. But not a penny came from France, Britain or Russia, and only $500,000 from America. Most countries have been slow to open their military and intelligence files to the tribunal or its commission of experts. In September 1993 the commission's chairman resigned, complaining of lack of support from France and Britain. And the commission was eventually shut down by the UN bureaucracy three months before it was due to finish its work.

The next step, the selection of a chief prosecutor, was hugely important. A weak prosecutor would mean failure; a forceful one might spell success. Half a century ago the United States showed its commitment to the Nuremberg process by sending a Supreme Court justice, Robert Jackson, to be chief counsel there. This time, too, the Americans favoured a forceful prosecution. The Europeans preferred milder candidates, men who would not disrupt the peacemakers' search for a magic solution to the war. The result was a 14-month struggle of Byzantine silliness, the UN at its worst.

In August 1993 the Security Council was torn between two candidates: John Duncan Lowe, a Scottish law officer, and Mr Bassiouni. Russia, France and Britain backed Mr Lowe; the United States and the non-aligned countries supported Mr Bassiouni. The Bosnian government hoped the decision would not go to a tiptoeing sort of prosecutor. The UN'S secretary-general, Boutros Boutros-Ghali, tried to force the issue by formally nominating Mr Bassiouni. Britain squawked. America gave up. Both candidates were tossed out.

The embarrassing led to the ridiculous. Mr Boutros-Ghali suggested the attorney-general of India. That of course was shot down by Pakistan. The Russians made it clear they would not tolerate a prosecutor from a NATO count: out went an American candidate and a Canadian one. In October 1993, heartily sick of the whole thing, the Security Council settled on Ramon Escovar Salom, the attorney-general of Venezuela. A man of "all talk and little action", complained the organisation called Human Rights Watch-Helsinki. No matter: last February, Mr Escovar dropped the job to become Venezuela's interior minister.

The man but not the money

Things looked grim; but at this point came a stroke of luck. Enter Richard Goldstone, a South African judge who had run a commission on political violence in the most delicate stages of his country's transition to democracy, and had vigorously attacked the South African police force's dirty tricks. No one dared play politics with such a man. Last July Mr Goldstone breezed through the Security Council, 15-0.

Then came a budget fight. Mr Goldstone reckons that investigation is his vital task, and that he needs twice the staff of 85 people he has at the moment. The UN at first offered about $32m for 1994 and 1995, of which only $562,300 was for investigations. The United States has given $3m, plus 22 investigators and prosecutors; Britain $30,500 and one staff man (and $250,000 more is promised); France nothing. Incredibly, Mr Goldstone has no budget for 1995. After frantic negotiations last December, he got $7m from the UN for three months of work; the UN is now hearing his request again.

But even if it had a big enough staff and enough money, the search for Balkan war criminals has one built-in weakness. You cannot try people you have not arrested.

Of course, to indict people for war crimes, even if they never get brought to trial, does have some deterrent effect. Once indicted, the accused cannot travel outside his home country without the risk of being picked up by Interpol. That may not worry minor thugs, but it is a problem for the higher-ups. And the responsibility for war crimes can reach very high up the political ladder. A man cannot hope to be a worldclass politician, Mr Goldstone pointedly notes, if he is stuck inside a single country. A trial would be better, of course. But the tribunal dealing with the wars of ex-Yugoslavia, unlike a national court, cannot compel suspects to appear in front of it.

They are unlikely to go there voluntarily. "I will go to a war-crimes tribunal when Americans are tried for Hiroshima, Nagasaki, Vietnam, Cambodia, Panama!", says Zeljko Raznjatovic, better known as Arkan, the leader of those ferocious Tigers. The government of Serbia says that the Hague tribunal is biased. it had already blocked one investigation by the UN, and another by the Conference on (now Organisation for) Security and Co-operation in Europe. Mr Goldstone has been allowed into Belgrade to discuss what he wants to do (while there, he refused to meet Mr Milosevic, a potential suspect). Serbia has organised a farcical show-trial of a drunken thug in Sabac, west of Belgrade. But that is all.

Mr Goldstone says nobody on the political or military ladder is immune, even at the top. But he is starting near the ladder's bottom. All of the 22 people so far indicted (one last November, 21 in February) were Serb camp commanders or guards. Only one of them is in custody: Dusan Tadic, a Serb held in Germany, who is due to be extradited to The Hague. Mr Tadic, who survivors say worked in the Omarska camp, is charged with murder, rape and making his prisoners mutilate each other. The other 21 suspects are still at large, presumably in Serb-held territory. Mr Karadzic has said he will not turn them over.

Those who do not co-operate with the Hague tribunal (which chiefly means the Serbs) are in theory subject to UN sanctions. But the idea of imposing sanctions arouses no enthusiasm in most of the West's capitals. Anyway, it is argued, the world's attempt to negotiate a peace between the Serbs and their enemies may involve an amnesty for war-crimes suspects - or trials by the suspects' own national courts, which might amount to the same thing.

Madeleine Albright, America's UN representative, says the United States is against an amnesty, but State Department officials admit that this could change. Britain is studiously non-committal. And Mr Goldstone? He holds himself above politics, and says the Security Council will have to shut the tribunal down to stop his work.

And now Rwanda? Well, maybe.

The other scene of current horror the warcrimes specialists are looking at is Rwanda. The UN is in the process of setting up a second tribunal to deal with the slaughter that happened there, with the same Mr Goldstone as its chief prosecutor.

In one way, Rwanda is easier than ex-Yugoslavia. The killing has ended and the Tutsis, its chief victims, have won the war. So, though plenty of the people suspected of taking part in the attempted genocide are now refugees in Zaire and elsewhere, some are in detention, available for trial. Even so, supporters of a Rwanda tribunal look at the ex-Yugoslavia mess and cringe.

Alain Destexhe, the secretary-general of Médecins sans Frontières, an aid group that worked in Rwanda, has more confidence in justice from national courts. Last August Faustin Twagiramungu, the new Rwandan prime minister, called for Rwandan trials rather than waiting "more than three years for the United Nations to organise an international tribunal". But John Shattuck, America's assistant secretary of state for human rights, pushed for an international tribunal too, and Rwanda relented.

One argument for an international tribunal for Rwanda is that Rwanda's own judicial system has been destroyed. It is reckoned that fewer than 15% of those under detention in Rwanda have even appeared before a court. A better argument is that the attempt to set up an international law against war crimes requires the relative impartiality of an international court. The winner of a war must not set himself up as judge over the loser.

There have been the predictable headaches. Part of the new Rwandan government's objection to an international tribunal was that no UN court would use the death penalty. Mr Goldstone's brief now is to secure the prosecution of 50-100 people accused of leading the genocide, who if found guilty will merely go to jail (whereas lower-level killers could face death in Rwanda's own courts). He will cover only crimes committed in 1994, even though some reckon the genocide was planned as early as 1992. France is uneasy because it was a notable backer of the Rwandan government of that time. Still, there should be fewer international complications over Rwanda than there were over the Balkan killings.

The start of something bigger

This bid to outlaw some of war's worst horrors faces great obstacles. Yet it trudges on. A dogged prosecutor is patiently and quietly at work. In Rwanda, at least, a lot of suspects are available for trial. So what are the lessons of the experiment's rough start?

First, the case for an international trial must capture the imagination of at least one great power - in this case America (or, more precisely, Mr Shattuck and Ms Albright). Otherwise the project is doomed.

Second, the nervous and the reluctant can be nudged in the right direction by energetic supporters of the idea. That role has been played in this instance by the Soros and MacArthur foundations, Physicians for Human Rights, Médecins sans Frontières, Human Rights Watch and Messrs Bassiouni and Goldstone. They have done admirable work, and they have got results.

And, lastly, take comfort: the process may become easier. Every effort at justice in this field, from Leipzig to The Hague, builds on the previous ones, as the world gradually becomes accustomed to the thought that there should be a court to deal with those who use the machinery of state for mass murder. The idea is taking root. If a few of the world's main countries show courage and creativity, the rest may follow.