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In World Beset by Violence, Who Should Face War-Crimes Charges? : Justice: Assembling an international tribunal would be far harder now than after World War II, but it could deter international criminality.

March 07, 1993|Robert Conot | Robert Conot is the author of "Justice at Nuremberg" (Carroll & Graf), a history of the trial of the major war criminals

Almost half a century has passed since the U.N. War Crimes Commission first met in October, 1943. (The commission, composed of 15 Allied nations, predated the United Nations Organization formed in San Francisco in 1945.) Throughout, the United States was the moving force in the organization and prosecution of both the Nuremberg and the Tokyo trials.

That the United Nations should now, after a hiatus of 50 years, have taken the first step of establishing another war-crimes tribunal to try the perpetrators of atrocities in the disintegration of the former Yugoslavia is not merely fortuitous. Conditions in the world today are much as they were at the end of World War II and quite different from the period in between.

In 1945, the United States led a coalition of victorious powers that no one could challenge. Then, speedily, this broke into two warring camps--East and West--whose goals and policies were diametrically opposed and largely based on expediency, with morality and international law subordinated. Now, with the breakup of the Soviet Union and the East Bloc, the United States is again the world's paramount power and issues are not seen starkly in terms of communism and capitalism. For the first time in two generations, the world is undergoing a resurgence of conscience.

Still, the complexities of organizing such a trial are far greater today than they were then. They may, in fact, prove a fatal impediment. And should they prove surmountable, U.N. members, once their current sense of outrage wanes, may have second thoughts about the Pandora's box they are threatening to open.

In 1945, it was not a question of the world judging the transgressors, but of the victors judging the vanquished. In Europe, not even the secondary U.N. powers were admitted to the proceedings. The United States took the lead in dictating the terms under which they were held, according to Anglo-Saxon law, in which all the Continental powers were unschooled; it collected and selected most of the prisoners and the bulk of the evidence, and it handled the administration, including the preponderance of the interrogation. It formulated the three broad charges: Crimes Against Peace, including the launching of aggressive war; War Crimes, which were crimes against the conventions of "civilized" warfare, and Crimes Against Humanity, which encompassed all other bestial acts.

The prosecutorial powers decided the rules of evidence, including what was admissible. What clearly was inadmissible, from the Allied point of view, was any reference comparing their actions to those the Germans were accused of. Most culpable, of course, were the Soviets--who had greased Adolf Hitler's way and divided Eastern Europe with the Stalin-Ribbentrop Pact; had executed the bulk of the Polish officer corps, and were perpetuating the same brutal concentration-camp operations of which the Nazis were accused and convicted.

But none of the other powers' hands were exemplarily clean. U.S. submarine warfare in the Pacific was as merciless as German in the Atlantic. Allied troops, as well as German, had shot prisoners of war--twice during the Sicily campaign, Gen. George S. Patton Jr.'s men perpetrated massacres, slaughters that Gen. Dwight D. Eisenhower chose to overlook. While the rules of war may be specific, the battle for life is brutal, bloody and amorphous. There are no referees blowing whistles on the battlefield.

If it was difficult enough to convoke war-crimes tribunals by fiat in 1945; it is mind-boggling to think how it might be done by world consensus in 1993. It is inconceivable that the approach to such trials would not be judicially balanced, yet the perceptions and agenda of the Muslim world are likely to be far different from those of the West. While the Serbs are surely the principal transgressors, it is doubtful that the Croats and Bosnian Muslims are without sin. In contrast to what happened 50 years ago, today it is unthinkable that, if one side is put into the dock, the other would not be also.

And what of the casuistry of such a trial, when Iraq's Saddam Hussein, who in a decade launched two aggressive wars--against Iran and Kuwait--and brutally suppressed the Kurds and Shiites, is currently the world's No. 1 perpetrator of Crimes Against Peace and Crimes Against Humanity? And what of Cambodia's Pol Pot, with whom the United Nations is negotiating--though the blood on his hands rivals that on the Nazis'? What of such sponsors of international terrorism as Libya's Moammar Kadafi? Or the brutalities perpetrated on a far wider scale than Bosnia in Angola, Mozambique and other parts of sub-Saharan Africa?

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