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Yugoslavia: Genocide Being Prosecuted For First Time

The Hague, 13 May 1998 (RFE/RL) -- Nearly a century ago (in May, 1899), diplomats and jurists from 26 countries came together in The Hague at the invitation of Russia to try to regulate how wars would be conducted in the future.

At the beginning of this century (between 1899 and 1907) several conventions were adopted, establishing a principle that even in war, not all is fair. These conventions outlawed the use of asphyxiating gases and expanding bullets, called dumdums.

The next major steps were the Nuremberg and Tokyo war crimes tribunals, in which the victors of World War II meted out justice to the surviving enemy leaders. After the trials were over, in 1949, nations adopted the Geneva Conventions to lay out strict rules of conduct in armed conflicts. They ban torture, indiscriminate attacks on civilians and destruction of religious and cultural monuments. A separate treaty establishes genocide as a crime.

William Pace of the NGO's Coalition for an International Criminal Court, says the Geneva Conventions, the genocide treaty and the Nuremberg and Tokyo war crimes tribunals established that even in war there are "certain heinous crimes that are just completely unacceptable." These include killing prisoners of war, torturing people, enslavement, mass rape, concentration and extermination camps and ethnic cleansing.

At Nuremberg, it was also established that a soldier or bureaucrat can not absolve himself of atrocities by using the defense that "I was only following orders."

Christopher Hall, legal advisor to the Amnesty International in London, said another important principle, that national sovereignty cannot be used to protect someone the international community considers it necessary to prosecute, led to the establishment of international jurisdiction over crimes against humanity and war crimes.

However, as Amnesty International said recently in a document outlining principles for a proposed permanent International Criminal Court, "for more than half a century since the Nuremberg and Tokyo trials ended, national prosecutors and courts have largely failed to bring to justice those responsible for the crimes of genocide, other crimes against humanity and serious violations of humanitarian law."

Hall adds that: "One of the most disappointing and dismaying things about the second half of the 20th century is that the promise of Nuremberg and Tokyo was not fulfilled and that national courts have allowed millions upon millions of these crimes to go unpunished."

Only recently the UN Security Council has established the two ad hoc tribunals for war crimes in former Yugoslavia and Rwanda.

"This is not victors prosecuting those defeated in a war," says Neil Kritz of the Institute of Peace in Washington, D.C. funded by U. S. Congress to promote conflict resolution. "This is the international community holding people who have perpetrated horrific atrocities accountable."

The tribunals also are establishing a record of what happened during the conflicts in former Yugoslavia and Rwanda -- much as the Nuremberg trials documented the existence of Nazi concentration and death camps -- so that history cannot easily be rewritten or denied in the future.

They also are intended to promote reconciliation by assigning individual guilt and destroying the concept of collective guilt -- the notion that all members of a certain ethnic group, for example, were guilty of crimes.

Particularly in former Yugoslavia, this seems an important step towards healing the wounds of the war. Throughout nearly four years of war in Bosnia-Herzegovina, members of all three warring factions frequently said that they could eventually go back to living with the innocent people among their enemies, if only those who had committed war crimes were brought to justice.

Judge Gabrielle Kirk McDonald, the U.S. judge who is president of the tribunal for ex-Yugoslavia, says that the court does not take any notice of the ethnicity of the people who appear before it.

"When I say we do not try Serbs, Croats and Muslims, we don't," she says. "We try individuals. Individuals commit crimes and those are the persons whom we try."

The largest number of people indicted by the tribunal are Bosnian Serbs. Last year a group of 10 wanted Bosnian Croats also surrendered to the tribunal. On trial at the moment are also three Bosnian Muslims. They are charged, along with one Bosnian Croat, with the murder, rape and torture of Bosnian Serbs at the Celebici prison camp run by Muslims.

Of the 32 people indicted by the Rwanda tribunal, most are charged with genocide. The tribunal for former Yugoslavia has indicted seven individuals for genocide. Two of them are in custody and a third was killed by NATO soldiers while resisting arrest.

Just this week, Milan Kovacevic, a Bosnian Serb who is a former civilian wartime leader of an area of northwest Bosnia where the most atrocities occurred, was scheduled to become the first man to go on trial at The Hague on charges of genocide. However, his trial has been postponed, with no new date set, because appeals judges are considering a prosecution request to add a number of charges to the indictment against him. There's no statute of limitations on atrocities.

The elderly (76 years old) Dinko Sakic, considered by some to be the most notorious World War II-era war criminal still at large today, was recently arrested in Argentina and is expected to be extradited to Croatia to stand trial on war crimes charges.

Sakic was the commander of the Jasenovac concentration camp -- run by the Croatian Nazi puppet regime and sometimes called "the Auschwitz of the Balkans" -- where hundreds of thousands of enemies of the wartime Ustashe regime, many of them Serbs, were killed.

National prosecutors also recently reached back more than half a century to convict Maurice Papon, a functionary in France's World War II collaborationist Vichy regime, of crimes against humanity for his role in deporting French Jews to Auschwitz death camp.

Papon argued at his trial that he was "too small a fish" to warrant the court's attention. He argued that charges of crimes against humanity apply only to Hitlers and Pol Pots.

Not at all, says Pace of the Coalition for an International Criminal Court.

It's not the rank of an individual that determines whether someone should be charged with war crimes, says Pace. What is crucial is the seriousness of the crime.

It is clear, however -- as Gary Jonathan Bass (a fellow at Harvard's Center for International Affairs) wrote recently in The New Republic magazine -- that "there's no chance of putting anything close to all of the guilty parties on trial."

"It is important," says Kritz at the Institute of Peace, "for the international community that it holds key individuals accountable, the leaders, the organizers and in many cases those who have committed the most horrific and most egregious of crimes as well, even if they were not at the top level." Those at the medium or lower levels should be charged by national courts, although Kritz admits this seldom happens in reality.

And as for the Bosnian Serb wartime leaders -- Radovan Karadzic and Ratko Mladic -- Kritz says they should take a message from the recent arrest of Sakic in Argentina -- more than 50 years after he allegedly committed his crimes.

"The recent arrest of Dinko Sakic in Argentina should give fairly clear notice that the passing of time will not make these issues go away," Kritz concludes. "That individuals like Dr. Karadzic and Gen. Mladic should be aware that no matter how long it takes, eventually this process will come to its conclusion."