The Case for War Crimes Trials in Yugoslavia

Theodor Meron

From Foreign Affairs, Summer 1993

Article preview: first 500 of 4,336 words total.

Summary:  Gross human rights violations in the former Yugoslavia-rape, torture, summary execution and mass internment-cannot go uncensured by the international community. A war crimes tribunal is a moral imperative and would go far toward deterring future criminals and defusing ethnic tensions in the Balkans. Although prosecution will be difficult, the alternative-doing nothing-is unacceptable. To abandon the process now, after the United Nations has already called for a tribunal, would make a mockery of international law. The moral legacy of the Nuremberg trials is at stake.

THE NEED TO ASSERT INTERNATIONAL LAW

The credibility of international humanitarian law demands a war crimes tribunal to hold accountable those responsible for gross violations in the former Yugoslavia. Opponents in the bitter ethnic and religious conflict have subjected civilians to summary execution, torture, rape, mass internment, deportation, destruction or confiscation of property and other violations of their rights. Many thousands have died.

A war crimes tribunal, sought by the U.N. Security Council, would be the first since the Nuremberg and Far East trials following World War II. The Security Council's decision, embodied in U.N. Resolution 808, derives its binding authority from the U.N. Charter's Chapter VII provisions regarding threats to peace, breaches of peace and acts of aggression. The Security Council's determination that violations of international humanitarian law constitute a threat to international peace and security and that the establishment of the tribunal would contribute to the restoration and the maintenance of peace is of ground-breaking importance. Considered from a different perspective, the Security Council's decision to establish a war crimes tribunal reflects the failure of the Security Council's primary mission to end the conflict and the atrocities.

Reaffirming the Nuremberg tenets and the principle of accountability should deter those in Yugoslavia and elsewhere who envisage "final solutions" to their conflicts with ethnic and religious minorities. A war crimes tribunal could also educate the general public not to accept egregious violations of human rights and humanitarian norms. Above all, there is a moral imperative to rigorously prosecute the offenders, given the deliberate, systematic and outrageous nature of the violations in the former Yugoslavia.

WAR CRIMES HISTORY

There is nothing new, of course, in prosecuting offenders against the laws and customs of war as reflected in national military codes. For centuries military commanders--from Henry V of England, under his famous ordinances of war in 1419, to the American military prosecutions of soldiers involved in the My Lai massacre under the U.S. Code of Military Justice--have enforced such laws against violators. In other cases, states have brought to trial captured prisoners of war for offenses committed against the customary laws of war. Thus both the accused's own state and the captor state have standing to prosecute. Neither system, however, has functioned with any degree of efficiency. Except in the case of a total defeat or subjugation--for example, Germany after World War II--prosecutions of enemy personnel accused of war crimes have been both rare and difficult. National prosecutions have also been rare because of nationalistic, patriotic or propagandistic considerations.

The Versailles Treaty after World War I illustrates the case of a defeated but not wholly occupied state. Germany was obligated to hand over to the allies for trial about 900 persons accused of violating the laws of war. But even a weak and defeated country such as Germany was able to effectively resist compliance. The allies eventually agreed to trials by German national courts of a significantly reduced number of Germans. The sentences were both few and clement. The Versailles model ...

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