Crime Without Punishment

By Bruce W. Nelan

Brutal crimes are being committed in Bosnia and Herzegovina, and anyone watching television can see the gruesome effects every day. War is not pretty, but it has its rules. Whenever armies torture or murder civilians, imprison them in concentration camps or drive them off the land, when they burn houses, wantonly shell cities and rape women, they are committing war crimes.

International law sometimes seems abstruse, but it is absolutely clear on this issue. A shooting war is no excuse for mistreating civilians or military prisoners. The legal precedents were set at the trials of major war criminals in Nuremberg and Tokyo after World War II. The underlying principles were endorsed by the U.N. General Assembly and the U.N. International Law Commission and codified in the fourth Geneva convention in 1949.

"There is no question about the fact that war crimes have occurred in the former Yugoslavia," says Adam Roberts, professor of international relations at Oxford University and a leading expert on the subject. "The Geneva conventions have been obviously and massively violated." So when U.S. Secretary of State Lawrence Eagleburger said in Geneva last month that "crimes against humanity have occurred," he was simply stating a fact.

But what does the West intend to do about it? The U.N. Security Council has deplored "grave breaches of international humanitarian law" in Bosnia and Herzegovina time and again. Eagleburger took it a step further, warning the criminals of "a second Nuremberg" and linking specific men to the crimes: four Serbs, two Croats and a Muslim. He also named three political leaders, including Serbian President Slobodan Milosevic, as bearing special responsibility. Yet there are no signs that any of this is more than the rhetoric of outrage. Two of the men Eagleburger fingered are to fly to Geneva this month at U.N. expense to talk peace with Bosnian leaders.

Appalling crimes have been committed, but proving that a particular suspect is guilty of a specific atrocity, as is legally required, will be difficult. The Nuremberg tribunal was aided greatly by meticulous Nazi record keeping; no such paper trail of official orders and reports is likely to turn up in Bosnia. And if solid indictments are eventually prepared, no court exists to + try such cases. Even more difficult, there is no way to arrest the suspects. "No one knows where this will lead," says a Western diplomat in Belgrade, "but we have crimes here of such a scale that you can't just wash your hands of them."

A second Nuremberg may not be possible, but the U.N. is on a path that could lead to trials. The Security Council last October authorized a commission of legal experts from five countries to document war crimes in Yugoslavia. Secretary-General Boutros Boutros-Ghali said he hoped the process thus begun would end by creating an appropriate court to judge the accused. The expert commission has already received 3,000 pages of testimony on war crimes in Bosnia from governments, aid organizations and individuals, mostly refugees. After analyzing the information, the experts will report to Boutros-Ghali by the end of this month. The next step will be up to the Security Council.

Legal scholars believe that a special tribunal, rather than any single nation's courts, would be the appropriate venue. Says Jochen Frowein, of the Max Planck Institute for International Law in Heidelberg: "A Security Council resolution setting out in detail how existing provisions on war crimes shall be applied is the only promising avenue."

There the process would probably break down, for the suspects are not in the U.N.'s hands. Even if the panel of experts reports the crimes against humanity in all their enormity and the Security Council establishes a proper tribunal, the criminals could well remain unfettered in Bosnia, Serbia and Croatia. Short of a military invasion from the West, there is no obvious way to find and detain them.

With such a dead end likely, many experts are skeptical about how serious Eagleburger and the U.S. government are when they speak of war crimes. Some critics believe that Washington is raising the issue to mask its unwillingness to use force against the criminals in Yugoslavia. The public charges, says Rosalyn Higgins, a professor of international law at the London School of Economics, reflect "impotence or inability for political reasons to act."

One way to take action, if the accused cannot be delivered to an international tribunal, would be to try them in absentia. Those found guilty would risk arrest if they ever went abroad. Even without a formal trial, the accused will have to think twice about leaving home. The crimes are of "universal jurisdiction," which means that every country is entitled to prosecute offenders found within its borders. And there is no statute of limitations on these crimes.

But the skeptics may be right. Since Eagleburger named names last month, the U.S. has made no effort to follow up or press for quick action to create a tribunal. That is true even though Washington is sitting on intelligence estimates that indicate 70,000 people -- five times the number mentioned in public -- are being held under intolerable conditions in concentration camps in Bosnia and Serbia. Those camps' lines of command, according to intelligence reports, lead straight to Belgrade, the Serbian capital. But the West seems so embarrassed at what it has recently discovered in the former Yugoslavia that it does nothing about it.

With reporting by James L. Graff/Belgrade and J.F.O. McAllister/ Washingto n, with other bureaus