ABSTRACT: Emma Bonino answers Sergio Romano, who had expressed reservations on the U.N. Security Council's decision to create an international tribunal in an article published on La Stampa [text below]. "It is not a Nuremberg II" - explains Emma Bonino - "because unlike in the past, today there are countless sources of international law on the basis of which to try the perpetrators of genocides and war crimes. Also, it is a first step towards the institution of a permanent international court for crimes against humanity. Sergio Romano replies that the risk is that of trying the defendants chosen by TV, and forgetting what is happening in more distant and less "telegenic" countries such as Georgia or Nagorno-Karabach.

(LA STAMPA, 9 June 1993)

In an article on La Stampa, Ambassador Romano expressed his skepticism concerning the U.N. Security Council's decision to set up an international tribunal for the crimes committed in the former Yugoslavia.

Apart from any reservations which I too might easily express, obtaining the sole result of adding my voice to that of the many who would like to prevent this trial against the slaughterers of Belgrade, our fundamental objective is affirming that 45 years after the universal declaration of human rights, the principles solemnly laid down by the international covenants must finally become a source of positive law, of unbiased tribunals, of lawful trials, of immediately applicable sanctions, non-negotiable by States or diplomacies.

In Nuremberg, the victors "deduced" the crimes for which the Nazi leaders were to be tried and punished from the principles of the existing international law, or with the ones proclaimed during the war by the newly established United Nations. It was said then - and Romano seems to imply it today - that this represented a violation of the principle of the "nullum crimen sine lege, nulla poena sine lege". But today there is a "law", because the international juridical norms recognize that each human being has inborn and therefore inviolable rights. There are countless sources of the international human rights law, and they contain juridical norms that are binding for all States. However, there is no supranational authority to guarantee these rights - and this is not a secondary fact.

It must be recognized, therefore, that much has been accomplished since Nuremberg, and that the U.N. Security Council's decision establishes the creation of something which is extremely different from just another Nuremberg trial. Obviously the U.N,'s decision is far from faultless. It migh be argued that saying that only the defendants who are effectively at the disposal of the court will be tried, ruling out any judgment by default, does reveal a touch of hypocrisy and realpolitik. However, I truly believe that this is a first, significant step towards a justice which is not the monopoly of the sole victors, and towards the affirmation of a new model of international law in which the single human being is the detainee of certain fundamental rights in the name of which it is not only possible to exert the duty-right of interference, but in which citizens may be effectively protected by the international regulations also against their country of origin.

Is this a breakthrough for the destiny of humanity? I am not blind enough to mistake my hopes with reality: I realize it is also possible - and in fact likely - that the U.N. Security Council's decision will remain on paper, as often in the past. But can we afford the luxury of skepticism? Can anyone think of a better solution to tell the world that ethnic cleansing, mass murders and rapes will not remain unpunished? This is not the time, I think, to sit on the status quo, express reservations and ultimately accept the failure of this tribunal. We need to struggle. We need to raise people's awareness, to prevent the failure - as many hope - of the international tribunal on the crimes committed in the former Yugoslavia and, above all, to institutionalize this instrument of international punishment of the crimes "against humanity" wherever they are committed. I too think that in order to start anew it is necessary to try "victors and vanquished, big and small, the criminals of the Balkans and the white-collar

powers with equal impartially". I have been working for years to create the necessary political means - the transnational party - to pursue this common objective: Ambassador Romano, can we count on your support to wage this difficult battle?

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NUREMBERG II, WHICH JUDGES?

Ex-Yugoslavia: the only tribunal is the U.N.

by Sergio Romano

(LA STAMPA, Thursday 3 June 1993)

An international tribunal for the war crimes that are

being committed daily for almost two years in the former Yugoslavia has been created. The decision came from the U.N. Security Council in its session of 25 May, after month-long juridical researches and diplomatic negotiations.

Will we have new Nuremberg trials? Will we need to erect new gallows in some neutral city of the Balkans to hang those sentenced to death? Will we need to send marines, carabinieri and military to check that the defendants will not escape punishment after the sentences, like Hermann Goering did when he swallowed a cyanide capsule? Will we need to reopen the prison of Spandau, where Rudolf Hess spent over forty years in a state of mental incapacity before committing suicide because one of his judges, the U.S.S.R., refused an act of clemency? And which are the crimes for which we will convict the Serbian criminals? The same committed by the French in Algeria, the Americans in Vietnam, the Israelis in Lebanon, the Soviets in Budapest and in Afghanistan, the Chinese in Tibet, the Vietnamese in Cambodia, the Iraqis in Iran and in Kuwait?

Each person will answer according to religious beliefs, political culture and juridical mentality. But anyone wanting to talk about international war crimes tribunals in the coming months ought to read Telford Taylor's book, "Anatomy of the Nuremberg trials", published by Rizzoli and translated by Orsola Fenghi. Taylor was a colonel in the U.S. army's secret services at the end of the war when Robert R. Jackson, a judge of the Supreme Court, asked him to join a group of lawyers of the prosecution in view of the major trial to be held in Nuremberg on 20 November 1945 against 21 defendants. Among them were Goering, Hess, Ribbentrop, Doenitz, Franck, Keitel, Schacht, von Schirach, Speer and von Papen.

The trial had been in the making for a few years, and in many respects was the inevitable conclusion of the anti-Nazi crusade-like character the conflict had taken on especially in its final phase. It became necessary to agree on the laws and procedures to apply during the debate.

The victors held fifteen sessions in London between June and July 1945 to draft a code which was called, with typical Anglo-Saxon pragmatism, "Charter". The more radical and moralizing positions prevailed. It was decided that the tribunal would judge "crimes against peace" as well as war crimes, i.e. "wars of aggression", and that it would have also charged the defendants with the typically Anglo-Saxon crime of conspiracy.

This made it possible to try everything or almost, from the Anschluss of Austria in March 1938 to the war against Poland in September 1939, to the invasion of Belgium and Holland, in May 1949, to Operation Barbarossa in June 1941. And if the defendants had tried to justify themselves with the argument of military discipline (an order is an order, as the Germans say), the judges would accuse them of conspiracy.

Undoubtedly, there must have been uneasy moments during the trial for the Western court and lawyers. Many of them knew how Stalin had treated the kulak when farms were collectivized, and any opponent during the purges of the second half of the thirties.

Everyone remembered that the Soviet Union had signed a pact with Nazi Germany in August 1939, and that it had used it to take a large part of central and eastern Europe, from the Baltics to Bessarabia. No one ignored the fate of the Russians and Croatians whom the English had given over to the Soviet forces and Tito's partisans in the spring of 1945. Wasn't the war of aggression which the U.S.S.R. has unleashed against Finland in November 1939 a war against peace? Wasn't the massacre of Polish officers in the forest of Katyn, which the Soviets in Nuremberg insisted on charging the Germans with, causing embarrassment for the Western colleagues, a crime of war?

There were other reasons of embarrassment apart from these: the memory of the phosphorus bombs with which "Bomber Harris", a marshal of the RAF, had destroyed Dresda in the last eight months of the war, and that of the atomic bombs with which the Americans had put an end to the war in Asia. And when Admiral Raeder rejected the allegations of conspiracy for the aggression to Norway, contending that the English were preparing to do the same, the British Admiralty refused to provide the requested documentation.

Indisputably, the Nuremberg trial was was the trial of the victors, from the beginning to the end. And it was celebrated with the laws, rules and exceptions which the victors decided to impose. Was it also unfair? After being one of the accusers in Nuremberg, towards the end of his book Telford Taylor sides with the defendants.

Of all the arguments used to justify the trial, one strikes me as particularly valid. The crimes committed by the Nazi regime and the aggressions suffered by so many European peoples called for an ordinary form of justice. In the words of a German jurist, it was necessary to "ease the tension between victors and vanquished, and reset the accounts of history to zero, formally at least. The other solution - letting the single victors execute the Nazi officers after a summary trial - would have seemed both unfair and insufficient. Nuremberg was a major redeeming rite, therefore.

Nevertheless, the trial in no way opened up a new historical phase. Nor did it ensure that each member of the international community from that moment on would have been responsible for his acts in front of a major international court. In the years that followed, each person tried at best to do justice for himself, according to his own rules. Israel tried Eichmann, the Americans tried William Calley and Ernest Medina for the massacres in Vietnam; France tried Klaus Barbie. The "crimes against peace" started again, from the invasion of South Korea to that of Kuwait to a series of minor "police operations" in Grenada and Panama. Considered from a historical standpoint, the Nuremberg trial is not a juridical revolution, but simply a solemn way to settle the accounts of World War II.

It seems that now there is a turnabout. The Serbs will not be tried by the victors, but by an independent body created by the United Nations. Is this year I of the international justice? I will believe so once the tribunal proves to be capable of trying the victors and the vanquished, the outlaws of the Balkans and the major white-collar powers with impartiality. Until then, I think it wiser to refrain from any judgment.

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THE NASTY SERBS ON TV

Mistrust the justice of the victors

Who remembers the massacres in Nagorno-Karabach?

by Sergio Romano

(LA STAMPA, 9 June 1993)

Until all States will be equal before the law and the law will be "equal for all", I think I will go on mistrusting the international justice and the justice of the war crimes tribunals. Yesterday in Nuremberg, the fundamental choices - the defendants, the charges, the procedure, the crimes and the punishment - were made by the victors. Today we risk trying the defendants chosen by television, those which the media offer to our anger and indignation. The same things happen in Nagorno-Karabach and in Georgia, but those are distant countries, scantily covered by the media. The Serbs who play Von Stroheim's part in his first American films, "the man you would love to hate" in the Bosnian serial every evening are enough for our share of daily indignation. Salvemini once told his friends of "La Voce", "if I have to tell you two truths and you allow me to tell you only one, you are forcing me to lie". The same applies to international justice. Until the choice of the defendants is made by the victors, by televisio

n or by an international body - the U.N. Assembly, which will have to appoint the judges - where there are few innocents and many sinners, we will have only a half truth and a fundamental injustice.

Sergio Romano, "La Stampa" of 9 June 1993