Last week NATO declared "war on war criminals" in the former Yugoslavia. In the process of arresting two Serb officials indicted by a U.N.-administered war-crimes tribunal on the charge of operating concentration camps, the NATO peacekeepers killed one in a gun battle. Also charged with war crimes are former Bosnian Serb President Radovan Karadzic and Gen. Ratko Mladic. A similar ad hoc U.N. tribunal is trying war criminals in Rwanda. And there is talk that Canada will soon try Pol Pot for orchestrating the murder of 2 million Cambodians in the 1970s. What is a war crime? Where does the United Nations derive its authority to arrest and try accused war criminals from? Why has the United States resisted the establishment of a permanent war-crimes tribunal?
The concept of a war crime dates at least as far back as biblical times. In the Book of Joshua, soldiers were executed for transgressing certain implicit rules of warfare, like looting conquered cities. St. Augustine (354-430) was among the first to study the ethics of war, hoping to reconcile the Roman Empire's militarism with the ideal of "loving thy neighbor." Killing could be morally justified, as long as it was Romans attacking barbarians. But, he added, war must be only a last resort, efforts must be made to avoid hurting noncombatants, and the reasons for fighting must be "just." Ideas about the ethics of warfare have also been absorbed into secular doctrines of warfare, like the medieval code of chivalry. Similarly, in Japan the unwritten martial code, Bushido, required warriors to treat their enemies with honor, even providing prisoners of war with medical care. Modern military technologies--trench warfare, machine guns, and chemical weapons--shattered old ideas about the "honor" of battle. During prolonged mid-19th-century conflagrations like the American Civil War and the Crimean War, battlefield casualties were unprecedentedly high and civilian casualties were increasingly considered inevitable. In response to the new brutality, some declared all war unjust. Pacifism, once adhered to by only a few small Christian sects, became popular among clergy and intellectuals such as the philosopher Bertrand Russell, who was sent to prison for his opposition to World War I.
Following World War I's slaughter, European leaders sought to "end all war," or at least make warfare more "humane," through new international laws and organizations. The British and French armies established ad hoc military courts to try Kaiser Wilhelm II and more than 900 other top German officials for "unjustly" instigating the war. The allies never arrested Wilhelm and convicted only 13 German soldiers, giving them light sentences. The newly created League of Nations debated, but failed to pass, treaties prohibiting the torture of prisoners and attacks on civilians. Only after World War II did the United Nations oversee the creation of the Geneva Conventions (1949) and the Genocide Convention (1948)--treaties ratified by nearly every country in the world. The former outlawed all "intentional" attacks on civilian populations and created new rules to protect prisoners of war. The latter declared it a crime to kill members of a racial, religious, or national group of people when the intention was to eliminate the group.
The conventions are vague on enforcement. If a country is unable to mete out justice, it is expected to extradite suspects to countries that can. Stringent laws in Canada and Germany punish foreigners who violate the conventions. The United States has no such laws, but its military courts punish servicemen who violate the Geneva Conventions; Lt. William L. Calley was convicted of war crimes for ordering the 1968 My Lai massacre of unarmed civilians during the Vietnam War.
Since World War II, many have clamored for a permanent international war-crimes tribunal to enforce the conventions. Prior to the Clinton administration, the United States consistently opposed the idea because it worried that the country's leaders would be tried for the bombing of Hiroshima and its 1986 attacks on civilian targets in Tripoli, Libya.
The model for an international war-crimes tribunal is the Nuremberg trials, established by Allied victors in Germany to try the 24 highest-ranking Nazis. Their crimes included the "deliberate instigation of aggressive wars," the extermination of racial and religious groups, and the murder and mistreatment of prisoners of war. Three were acquitted, two committed suicide before the trials began, 12 were hanged, and the rest received prison terms ranging from ten years to life. In separate proceedings, 185 other Germans were put on trial, including the heads of concentration camps, organizers of medical experiments on concentration camp prisoners, and industrialists who used prisoners for slave labor. (Ordinary citizens complicit in war crimes were not tried, to avoid stigmatizing the country permanently.) Since Nuremberg, the most prominent trials of alleged Nazi war criminals have been held outside Germany. In 1961 Adolph Eichmann was tried by a special Israeli tribunal under Israeli laws that prohibit "crimes against humanity." And in 1987, a French court sentenced Gestapo chief Klaus Barbie to life in prison for violating similar French laws.
Complaints abound that Nuremberg was a kangaroo court. Sen. Robert Taft called the trials "victor's justice" that unfairly applied new laws retroactively. The post-World War II trials in Tokyo, organized by Gen. Douglas MacArthur, tried 28 Japanese leaders on charges of mistreating Allied soldiers and instigating unjustified aggression. Many historians also deem these trials unjust.
Soon after war broke out in the former Yugoslavia in 1991, the United Nations used a previously obscure section of its charter to convene the first international war-crimes tribunal since Nuremberg and Tokyo. The court has indicted 77 people, mostly Serbs accused of participating in the massacres of Muslims. Only 10 are in custody in the Hague, and only one has been tried so far: a Bosnian Serb foot soldier who was found guilty of murdering two Muslims and sentenced to serve 20 years in prison. Meanwhile, the alleged architects of "ethnic cleansing"--Radovan Karadzic and Ratko Mladic--are still free.
In 1994, the U.N. Security Council set up a tribunal in Arusha, Tanzania, to investigate the mass murders in Rwanda. This tribunal has indicted important figures thanks to the cooperation of Hutu and Tutsi leaders who have turned in their own accused tribesmen.
After a band of guerrillas captured ex-Cambodian dictator Pol Pot one month ago, many Cambodians began demanding that he be tried for the murder of the millions killed by his regime. Initially, the United States hoped that Cambodia would use the authority of the Genocide Convention to extradite Pol Pot to Canada for trial there. But Canada has been reluctant to involve itself, and the United Nations is considering creating yet another ad hoc tribunal.
Human-rights groups argue that the current tribunals, having no police force to back them up, are too weak to be effective. Right-wing groups say the United Nations has used the opportunity to extend its power. Never before has a U.N. court been able to punish the actions of individuals. Both right- and left-wingers worry that the new U.N. tribunals will reprise the flaws of the Nuremberg and Tokyo trials, attempting to make political points and failing to adequately protect the rights of the accused.