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Yugoslavia: Analysis From Washington -- Justice Unenforced

Washington, 10 November 1999 (RFE/RL) -- The failure of the countries which created the international tribunal for war crimes in the former Yugoslavia to arrest those who have been indicted has made it impossible for that judicial body to do its job, according to the court's departing chief justice.

In a speech in New York on Monday, Justice Gabrielle Kirk McDonald lashed out at the members of the UN Security Council for failing to arrest suspected war criminals with their own forces or to compel Serbia and Croatia to turn such people over for trial.

"It is time for this complacency to end," she said at the conclusion of her six-year tour on the court. "We have no police force or means of coercing states to follow our orders. We need your support." But so far, she added, it has not been forthcoming.

The Hague-based court has issued indictments against more than 90 people in the former Yugoslavia for war crimes, genocide, or crimes against humanity, but only 40 have been brought before the court. Thirty-two are being held awaiting trial; only eight have been convicted so far.

Among those indicted by still at large are Serbian President Slobodan Milosevic and Bosnian Serb leaders Radovan Karadzic and Ratko Mladic. McDonald was particularly critical of the members of the UN Security Council for failing to arrest Karadzic since French forces control the town where he is thought to be living.

Justice McDonald indicated that she was simply trying to ensure that the Hague tribunal could fulfill its mandate rather than seeking to raise more fundamental issues. But her comments form part of a discussion about the broader implications of international courts.

That debate has been going on at least since the World War II allies created the Nuremberg tribunal to try Nazi leaders. At that time, there was unanimous agreement that those guilty of some of the worst crimes the world had ever known should be punished. But even then, there was concern about using an ad hoc judicial body to make these decisions.

Among those who agreed that the Nazis must be punished but who argued that the use of such a tribunal could set problematic precedents was U.S. Senator Robert A. Taft. His willingness to take such an unpopular stand in public led future President John F. Kennedy to include Taft in his book "Profiles in Courage."

In the half century since the Nuremberg trials, an international community outraged by the behavior of this or that regime has often called for the creation of a special tribunal to deal with those responsible. But as Taft warned 50 years ago and as McDonald reiterated this week, such tribunals have often failed to live up to expectations in three critical ways.

First, in every case, the willingness of the international community to create a tribunal has vastly exceeded its preparedness to back up such a court. Individual countries and even international organizations like the UN made up of individual countries have frequently found it inconvenient to live up to the promises inherent in such a court.

In the former Yugoslavia, countries with troops on the ground have been concerned that any moves to arrest indicted war criminals could lead to violence in which their own soldiers would suffer. And other countries have opposed the arrest of such individuals out of a desire either to sow mischief or to weaken the resolve of the peacekeepers.

Second, the selective way in which the international community has decided to convene such panels and to arrest those indicted has increased cynicism about such tribunals.

As many observers have pointed out, the international community is far more likely to convene such a panel to investigate war crimes in small and weak countries than in large and powerful ones.

The cynicism this produces about international law also carries over into cynicism about courts and legal proceedings within countries, particularly in countries like the post-communist states which have only recently moved to establish the rule of law.

And third, both the unwillingness of the international community to back up such tribunals and its highly selective enforcement even when it does, have sent a clear signal to leaders about who can get away with what.

Obviously, as Justice McDonald makes clear, the international community is beginning to set some real limits on what it will accept. But equally obviously, the failure of the international community to back up these courts in a fully consistent way means that justice will often remain unenforced -- and thus will be effectively denied.