The Nation - March 20, 1995 371



Last month's indictment of twenty-one Serbs from Bosnia and Serbia for atrocities committed at the Omarska death camp in 1992 is a major step forward for the International Criminal Tribunal for the Former Yugoslavia.

The defendants, only one of whom is in custody, are charged with war crimes, crimes against humanity and, in the case of the camp commander, genocide. The catalogue of horrors includes rape, sexual mutilation, discharging the contents of a fire extinguisher down the throat of a detainee and mass murder. Still, a number of additional steps, some by the tribunal itself and others by member states of the U.N. Security Council which created it, are necessary before the tribunal can fulfill its potential for demonstrating that the world is finally prepared to hold accountable those responsible for such great crimes.

The tribunal must demonstrate that it will take on the leaders most responsible for the crimes that have characterized the conduct of this war. At the very least, that means indicting Radovan Karadzic and Gen. Ratko Mladic. Whether the indictments will be able to reach Slobodan Milosevic is more problematic, but there should be no reason to fail to prosecute the first two for what happened at Omarska and the other detention camps where similar crimes took place, and also for the forced deportations, indiscriminate bombardments of civilian population centers and massacres which were a means toward the goal of ethnic cleansing.

Under principles of international law recognized since time immemorial and established at Nuremberg, in the First Additional Protocol to the Geneva Conventions and in the statute of the tribunal itself, commanders are culpable for war crimes by forces under their command if they have knowledge of those crimes and do not take all measures within their power to prevent and suppress their commission.

The application of those principles to Karadzic and Mladic is beyond question. The crimes in the former Yugoslavia were committed over a sustained period throughout the territory where their forces were active. And the two men certainly knew about them.

Knowledge is central to the prosecution's case. In 1946, the U.S. Supreme Court upheld the conviction of a Japanese general, Tomayuki Yamashita, for the atrocities committed by his forces at Manila. Writing for the majority, Chief Justice Harlan Fiske Stone said that Yamashita's crime, for which he was hanged soon after the decision, lay in neglecting to take reasonable measures to protect civilians and prisoners of war. This inspired vigorous dissents by Justices Frank Murphy and Wiley Rutledge because it had not been proved that Yamashita knew of the crimes being committed.

Indeed, as Murphy pointed out, a purpose and effect of U.S. military action in the area had been to disrupt communications between Yamashita and his troops. Though Yamashita has not been reversed, it is now accepted internationally that knowledge must be demonstrated to establish command responsibility. It can be proved in the case of Karadzic and Mladic because, as never before, information about the atrocities in Bosnia was so widely disseminated while the conflict was under way.

The crimes were reported in the press worldwide; documented by nongovernmental human rights groups and by such U.N. bodies as the Special Rapporteur on Human Rights and the War Crimes Commission; were the subject of frequent remonstrations by the International Committee of the Red Cross and the U.N. High Commissioner for Refugees and, at times, by UNPROFOR; and were discussed in repeated resolutions by the U.N. Security Council.

Of course, Milosevic also knew. Yet the question that arises in his case is whether the prosecutors can prove he had control. Certainly, the Yugoslav Army, of which he is the commander, supplied men and materiel to the Bosnian Serbs; in addition, paramilitary forces from Serbia itself, such as those led by "Arkan" and Vijislav Seselj, committed particularly vile crimes. Yet it may be hard to produce evidence that those forces were controlled by Milosevic. The Bosnian Serb leaders were in a different category. Karadzic and Mladic negotiated for their forces and demonstrated that they could deploy troops, block relief convoys or let them pass, take UNPROFOR troops hostage or release them, call cease-fires or end them. Their control was manifest. Finally, the prosecutor will have to deal with the efforts made by Karadzic and Mladic, and by Milosevic if his control can be shown, to prevent and suppress the crimes committed by their forces. What inquiries did they conduct? What punitive measures did they impose? Or did they, rather, boast of such crimes as laying waste to Sarajevo? If and when the tribunal's prosecutors issue appropriate indictments against those with the highest level of responsibility for great crimes, the hurdle that will remain is actually bringing them to trial. More than a year ago, U.S. Ambassador to the U.N. Madeleine Albright stated Washington's resolve to make this happen by asserting that sanctions against Belgrade would not be lifted without there being full cooperation with the tribunal's prosecutions. Yet an effort is now under way by the Contact GroupÑthe United States, Britain, France, Germany and RussiaÑto get Milosevic to recognize Bosnia and Croatia in exchange for an end to most sanctions. The tribunal has not been mentioned in the reports about those negotiations. With Justice Richard Goldstone in charge of the prosecution, there is good reason to believe that the tribunal itself will meet its responsibility to bring indictments against Karadzic, Mladic and the other Bosnian Serb leaders most responsible. Unhappily, it is not possible to express similar confidence about the governments now seeking to end sanctions against Belgrade. Having created the tribunal, they are on the verge of undercutting its ability to do its job.