In an instant, the blast from a 120 mm mortar shell created a ghastly shower of blood and limbs, leaving nearly 300 people dead or severely injured in Sarajevo’s bustling open-air market.
Because of the way it struck, hitting a table and creating a burst of hot shrapnel, United Nations investigators said they couldn’t definitely place blame on the presumed attackers-Bosnian Serb gunners who from the hills around the city have held its residents hostage.
But that is almost beside the point.
The conduct of the Bosnian Serbs’ 22-month siege of Sarajevo-with snipers picking off defenseless pedestrians and artillery gunners killing children at play-involves war crimes for which soldiers, their commanders and, ultimately, their political leaders could be held accountable.
But even as the United States and its European allies finally demanded last week that Serbs withdraw their artillery from the city’s outskirts, a question remains:
Will those responsible for the attacks against Sarajevo-or for other horrors against civilians committed by all sides in this bestial war-be tried and punished?
The UN Security Council, rendering a powerful moral judgment on events in the former Yugoslavia, made a commitment to such prosecutions by creating a War Crimes Tribunal, the first since Nazi leaders were tried at Nuremberg and Japanese leaders in Tokyo after World War II.
But a year after the council’s historic vote, the tribunal still has no chief prosecutor. It has no investigators. It has no final budget to pay for its operations. The international judges who would hear such cases are just starting work on their procedural rules and won’t be ready to conduct trials for months.
The U.S. ambassador to the UN, Madeleine Albright, is the most forceful advocate of the tribunal in the face of something less than unqualified international enthusiasm.
“A number of people in all the governments, including our own government, are skeptical about whether this will come to anything,” acknowledged one U.S. diplomat working on the issue. “Our point of view is that we have to give it a shot.”
Set against a history of halfhearted Western efforts to stop the killing, the tribunal risks being perceived as an empty, even cynical gesture to ease the world’s conscience.
“If it fails . . . it will be another serious injury to the United Nations’ credibility,” said James O’Dea, Washington director of the human rights watchdog Amnesty International-USA.
The nearly two-year war in Bosnia-Herzegovina has claimed more than 200,000 lives and has produced a gruesome catalog: mass killings and systematic rapes, torture and execution of civilians and prisoners, wholesale destruction of civilian homes and towns and the violent uprooting of communities, euphemistically called “ethnic cleansing.”
All the warring factions have committed acts that constitute war crimes, although UN officials and human rights workers blame Serb nationalist forces for most of the abuses in the three-way conflict with Bosnian Muslims and Croatians.
Such atrocities are prohibited under the Geneva Conventions of 1949, the basic international law intended to protect civilians in times of war, as well as by the notion of “crimes against humanity” set out at Nuremberg.
But it is one thing to punish those defeated in war, as happened at Nuremberg and Tokyo, and another to impose judgment on a war’s victors. And the British and French, in particular, have been cool toward pursuing war crime indictment of Bosnian Serb leaders that might complicate peace talks.
“The laws of war are very sensitive to politics,” observed Telford Taylor, who was the chief U.S. prosecutor at Nuremberg.
With Bosnia, the politics have never been particularly promising. That was glaringly evident at a December 1992 Geneva peace conference when then-Secretary of State Lawrence Eagleburger called for a “second Nuremberg.”
America’s closest allies reacted with an awkward silence as he publicly accused Serbian President Slobodan Milosevic, Bosnian Serb leader Radovan Karadzic, Bosnian Serb military commander Gen. Ratko Mladic and six others of war crimes. “It was kind of like a fart in church,” Eagleburger recalled recently with characteristic bluntness.
The Clinton administration embraced the idea when it took office the next month vowing to respond to the humanitarian tragedy in Bosnia. And while the UN Security Council unanimously voted last February to establish the tribunal, hopes for quick action faded amid political and financial maneuvering among nations.
The UN General Assembly elected the tribunal’s 11 judges, who are empowered to hand down jail terms but not the death penalty. The sole American is former U.S. District Court Judge Gabrielle Kirk McDonald, the first black jurist on the federal bench in Texas.
But the assembly hasn’t approved the modest two-year budget of about $33 million-half of what the U.S. government reportedly spent to investigate and prosecute New York mob boss John Gotti and about the same as it spent on the Iran-contra investigation. The Clinton administration has promised to supplement that with up to $28 million in cash and services and has urged other countries to pitch in.
Most embarrassingly, the Security Council spent months squabbling over possible candidates for chief prosecutor, only to have its eventual compromise choice, Ramon Escovar Salom, quit-before he formally began the job-to take the post of interior minister of Venezuela.
The chief prosecutor has sole authority to prepare indictments to present to a tribunal judge and will oversee an initial staff of about 45 prosecutors and investigators. There were about 1,000 prosecutors and investigators to try 22 defendants at Nuremberg.
For the last 18 months, a UN commission of experts, headed by De Paul University law professor M. Cherif Bassiouni, has been accumulating war crimes evidence, documenting the systematic rapes, mass graves, concentration camps and attacks on Sarajevo.
“If there were 50 prosecutors today, I could give them 50 cases today,” said Bassiouni, whose commission is due to be disbanded by the UN in April despite unfinished business.
Further, the U.S. has begun declassifying and turning over to the tribunal hundreds of pages of testimony from former war prisoners and refugees containing the names of camp commanders and others allegedly responsible for atrocities. The U.S. has been gathering evidence in the hope of providing information for possible war crimes prosecutions.
For instance, Muslim survivors named Serb commanders and guards they said ran the notorious prison camp inside the Keraterm ceramics factory in Prijedor, describing how inmates were crowded hundreds to a room amid their own excrement on the floor, beaten with bats, tortured with broken bottles and lined up and executed. The camp commander was identified as having been a former watchman in a nearby paper mill, and one of the most brutal guards allegedly came from a prominent literary family.
Another declassified U.S. report names the alleged members of a Bosnian Serb death squad-citing their former occupations as police officer, gymnastics teacher and game warden-who were described as murdering the last dozen remaining residents in the Muslim village of Jelec in April 1992.
But the siege of Sarajevo may provide the basis for prosecuting players far bigger than the officer, the teacher and the game warden. It could result in indictments of the top Bosnian Serb military and political leadership.
Under the legal theory of command responsibility established at Nuremberg, the issue is not simply whether they ordered attacks against civilians. They are responsible for stopping violations of the Geneva Conventions-such as the shelling of civilian targets-which events show they failed to do for nearly two years, until last week’s cease-fire under the threat of Western air strikes.
The tribunal cannot deliver anything close to complete justice in the face of the enormous human toll in Bosnia. But it holds out the only hope of bringing a degree of accountability denied the victims of genocide and other horrendous crimes elsewhere, people who died far from the glare of world attention in places like Iraq, Cambodia, Sudan and Burundi.
“It takes time, it takes patience,” said Irfan Ljubjankic, foreign minister in the predominately Muslim Bosnian government. “But I think this process will establish guilt.”
