Reconciling peace and justice in the aftermath of a criminal regime invariably presents difficult choices that can only be resolved within the context of each historical experience. There are no guidelines that can serve societies that have endured a governing process that included Crimes against Humanity and gross abuses of human rights, but are currently making a democratic transition based on constitutionalism and respect for the individual. Fashioning an appropriate approach is rendered more difficult to the extent that the former regime voluntarily gave up power as part of a bargain with the democratic opposition, and yet remains on the scene, even continuing to control the armed forces and internal police apparatus. The Southern Cone countries of Chile and Argentina pose this challenge in its sharpest possible form, but the same type of issue is posed for many other countries, including South Africa and several Central American countries.

The complexity of this challenge has been widely revealed over the course of the last year or so by the controversy surrounding the arrest of the former Chilean dictator, Auguste Pinochet. At issue most fundamentally is whether international standards governing the accountability of leaders takes precedence over the implementation of a national bargain in Chile, giving Pinochet effective immunity, and even a position of Senator for Life. Extending law to govern crimes of state has more generally resurfaced in this period as a result of the end of the cold war, and even more so, the human abuse arising from the breakup of former Yugoslavia during the course of the 1990s. For one thing a special criminal tribunal has been established at The Hague with authority over such allegations, as well as a parallel effort arising from the genocidal events that occurred in Rwanda in 1994. As well, through a transnational coalition of NGOs in collaboration with a series of governments, the Rome Treaty was signed in 1998 with the goal of establishing a permanent international criminal court. At the same time, there are various negotiations going forward about trials in Cambodia that address Khmer Rouge crimes in the 1970s and proposals urging the indictment of Saddam Hussein.

How can we explain this resurgence of inter-governmental interest in criminal accountability for political and military leaders acting under the authority of their respective sovereign state? The impulse to impose such responsibility originated in a half-hearted way after World War I, with the Versailles Peace Treaty proposing a criminal prosecution of Kaiser Wilhelm and a duty by Germany to proceed against lesser figures in a special court set up at Leipzig. These initiatives came to nothing, the Kaiser finding asylum in nearby Holland, and the Leipzig trials exhibiting a lack of political will by Germany to punish its own nationals. A serious commitment to criminal accountability arose after World War II when American diplomacy encouraged a legal approach to the problem of what to do with surviving Nazi and Japanese leaders, which seemed preferable to the prospect of large-scale summary executions favored by Stalin and Churchill. The Nuremberg and Tokyo trials went forward, and especially the events at Nuremberg conveyed to the world the full horror of the Nazi period to a wide segment of the public. The experience in Tokyo was more muted, with the prosecuting powers themselves reluctant to pursue the defendants too avidly, as Japan was already perceived as an indispensable ally in the emerging global conflict with the Soviet Union.

The Nuremberg/Tokyo trials, while spectacular in their revelations of the depravity of the defendants, were also dogged by accusations of "victors' justice." There was no scrutiny permitted of such gross violations of the laws of war as occurred as a result of the indiscriminate bombing campaigns waged against German and Japanese cities, resulting in the deaths of hundreds of thousands of civilians, nor even more notoriously of the use of atomic bombs against Hiroshima and Nagasaki. In a famous promise to the future, the American prosecutor at Nuremberg, a respected US Supreme Court Justice, Robert Jackson, acknowledged that unless in the future those who sat in judgment accepted for themselves the same standards of accountability as were imposed on the German defendants, the Nuremberg Judgment would be deeply discredited from both a legal and political point of view. The celebrated German philosopher, Karl Jaspers, echoed these sentiments when confronting the question of "German war guilt."

We now know that with the onset of the cold war the effort to impose criminal accountability of governmental leaders was effectively abandoned. Indeed, the victorious powers in World War II were each subsequently associated with wars that included recourse to belligerent tactics of the sort condemned at Nuremberg and Tokyo. To the extent that these ideas were kept alive at all, it was a result of efforts within civil society. The Vietnam War produced deep splits in democratic societies, including the United States. Telford Taylor, a former military officer and an important member of the prosecuting team at Nuremberg, wrote an influential book late in the Vietnam War that effectively argued that the policies being pursued in Vietnam by the United States were in significant ways comparable to the policies that had been declared criminal at Nuremberg, providing the basic for conviction and punishment of Nazi war leaders. In addition, the British Nobel Prize winner, Bertrand Russell, established a war crimes tribunal of prominent intellectual and cultural figures that gathered evidence and assessed United States responsibility for criminal conduct in Vietnam, reaching a verdict of guilt. The same kind of civic impulse led many American to justify a refusal to participate in the war, by way of the draft or through taxes, by appealing to what came to be called "the Nuremberg Obligation," that is, the right of a citizen to reject the authority of government if "the law" resulted in violation of the sort of obligations under international law that had been punished at Nuremberg. In effect, governments after 1945 ignored the idea of criminal accountability, and to the extent that it survived, it was due to the visionary commitments of citizens acting in defiance of prevailing governmental policies.

How then can we explain the revival of inter-governmental interest in the 1990s, especially in the setting of the war in Bosnia? Such a revival was officially justified by reference to the occurrence of "ethnic cleansing" and associated tactics relied upon, especially on the Serbian side, in Bosnia, leading the UN Security Council to authorize the creation of the Hague Tribunal. The context of authorization was significant. Europe and North America had called attention to the terrible massacres, mass rapes, and cruelty in Bosnia, but were unwilling to mount an effective humanitarian intervention. The UN was authorized to enter Bosnia with peacekeeping forces, but with insufficient capabilities and a mission based on impartiality, it stood aside while ethnic cleansing proceeded apace, culminating in the slaughter of thousands of Muslims trapped by Serbian military forces in the UN "safe haven" of Srebrenica. The failure of the humanitarian effort in Bosnia generated a sense of guilt on the part of the American and European leaders, as well as a genuine distaste for what had occurred. At the same time, there was still very little political support for action that might be expensive in lives or resources. In such a setting, imposing economic sanctions and initiating criminal prosecutions against the perpetrators, represented geopolitical maneuvers of a rather cynical character. True, those indicted at The Hague in the last several years, were fully investigated, and were responsible for criminal acts, but at the same time, the leading perpetrators of Bosnian "ethnic cleansing," Radovan Karadzic and Rakko Mladic, and most of all Slobodan Milosevic, were not apprehended. Indeed, Milosevic was not even indicted until the midst of the 1999 NATO air campaign relating to Kosovo, by which time his usefulness as a negotiating partner for the West was presumably exhausted.

Transitional Justice for Kosovo

It is important to draw a sharp distinction between the culpability of the defendants charged and wider questions of transitional justice for a society that has experienced intense ethnic conflict over a period of many years. What is most objectionable about the application of notions of criminal accountability to former Yugoslavia is the extent to which the whole project seems guided by geopolitical motives of a morally dubious character. These are quite far removed from, and are to a significant extent, inconsistent with the wellbeing of the affected Yugoslav peoples that have endured traumas of varying magnitudes during the 1990s. It is not only a matter of failing to pursue those most responsible for the alleged criminality, but the tendency to impose collective responsibility on one side inflicting continuing pain and suffering on civilians. By contending that Milosevic is an indicted war criminal, the NATO countries, particularly the United States and the United Kingdom, have justified continuing to maintain harsh economic sanctions on Serbia, including even the denial of heating oil for cities facing long, cold winters, including cities that had distinguished themselves by opposing Milosevic's rule. In effect, the post-conflict approach to Belgrade seems to be taking its cruel shape on the basis of the model relied upon in Iraq since 1991, inflicting hundreds of thousands of deaths on the most vulnerable portions of the population. In other words, the war crimes dimension of the Kosovo War is being relied upon to continue the war against Serbia, but by way of sanctions rather than bombs, but possibly with greater suffering for the people.

Such an impression is reinforced by the occupying policies and propaganda used in Kosovo since the ceasefire of several months ago. The UN/NATO peacekeeping force has been unable (or unwilling) to prevent "ethnic cleansing" of the Serbian minority, with the result being that the Serb population has dwindled from 200,000 to less than 50,000, with those huddled for precarious safety in villages in the North of Serbia. As Aleksandar Jovic has noted, the NATO leaders and the media has subtly excused the post-ceasefire crimes of the KLA and their supporters in Kosovo by using the terminology of "reverse ethnic cleansing" and "revenge killing," harkening back to a defining moment of provocation that explains, and even excuses the present slaughter of innocents under the virtual gaze of the peacekeepers.

Of course, further in the background is the question of "victors' injustice." There are host of questions that an impartial international inquiry into criminality of the events in Kosovo would investigate, including some difficult challenges directed at NATO. First of all, the most serious of Nuremberg crimes was viewed as Crimes against Peace, the waging of aggressive war, that is, the recourse to force in international affairs without an adequate legal justification. The UN Charter is very clear that recourse to enforcement actions by a regional actor was prohibited unless authorized by the Security Council. It could be argued in NATO's defense that the prospect of ethnic cleansing created an emergency exception and that recourse to the Security Council was not practical because of the wellknown prospect of China and Russia vetoing any initiative that called for force in Kosovo. Such a contention might have made NATO's action seem legally (and morally) justifiable in the context of preventing genocide, if a reasonable effort had been made to find a diplomatic solution. The evidence currently available suggest that no such effort was made. On the contrary, prior to the bombing campaign, NATO insisted that Belgrade accept a series of demands tabled at Rambouillet that would have involved a deep intrustion upon Serbian sovereignty. As well, Russia known to be friendlier to Serbia was excluded from any negotiations, strengthening the impression that NATO was delivering an ultimatum, and was interested in any outcome that did not involve a Serbian surrender.

Such an impression is strengthened by the negotiations that ended the war, which exhibited the flexibility that might have avoided the war altogether. The Russian diplomate, Chernymyrdin, was at the center of the negotiations, the peacekeeping force was mainly described as operating under UN auspices, and its writ was limited to Kosovo. It is indeed strange that the terms for Kosovo would be more lenient after 78 days of bombing than prior to the recourse to force. The only reasonable inference is that NATO wanted to gain credit for a "victory," even if meant recourse to an "illegal" war.

Such illegality is not a trivial matter. The prime mission of the United Nations, as signaled in the famous words of its Preamble, is to "save succeeding generations from the scourge of war." The constitutional devices adopted to make such an undertaking plausible was the Charter prohibition on the use of international force except in self-defense or under the authority of the Security Council. Although the role of regional peacekeeping was incorporated into the Charter it was subordinated, requiring express authorization in advance of any enforcement activity. Such a restriction is obviously important in protecting regional pariahs such as Israel and Cuba. The point here is that criminal accountability in the context of Kosovo should include an investigation of the NATO decision to have recourse to force.

Such an investigation should also extend to several legally dubious NATO belligerent practices, including high-altitude bombing, responsibility for civilian targeting including extensive pollution causing serious health hazards, reliance on shells tipped with depleted uranium and cluster bombs. Such practices appear on their face inconsistent with existing rules of the laws of war.

Without such an evenhanded approach to the issue of criminal accountability, the results are misleading in the extreme, especially in the setting of a complex ethnic conflict of the sort that existed for decades, if not longer, in Kosovo. Two broad sets of considerations are at stake: subjecting geopolitical actors, such as the United States and NATO, to the rule of law in their global activities affecting peace and security; and ensuring that the outcome of ethnic conflict is not manipulated in such a way as to resolve it arbitrarily for the benefit of the side supported by external military intervention, especially if as here, the intervention itself seemed in violation of international law, of the UN Charter, and an instance of a Crime against Peace.

Conclusion

There is a fundamental difference in the dynamics of resolving issues of transitional justice between countries that have experienced an internal process of conflict that has produced a shift away from oppressiveness and those, like former Yugoslavia, that have been the target of extensive military intervention. In the former, self-determination has produced an outcome that is negotiated on the basis of perceived mutual benefit. In the latter instances, the arrangement is negotiated with powerful outside forces that have a series of priorities that may not reflect the interests or power relations of the society whose destiny is being shaped.

If such arrangements are imposed by an occupying force after an international war, then it is likely to give rise to a post-conflict situation in which the element of criminal accountability is apportioned to the internal wrongdoers in a relatively convincing manner, as occurred after World War especially in Germany. However, if the setting is one of intranational war as in Kosovo (or Bosnia), and the internal conflict remains unresolved, the apportionment of blame via procedures for criminal accountability, is likely to be itself interventionary and unjust in the sense of not treating equals equally. As well, it is almost certain to exempt the intervening side from scrutiny, much less blame.

These various developments are in evidence in Serbia (including Kosovo). A war prompted to stop ethnic cleansing in Kosovo has resulted in a new cycle of ethnic cleansing. A war engaged in to protect the Kosovars has been continued via sanctions to achieve a change in governance in Belgrade, despite major burdens being placed on the civilian population. The acceptance of Serbian sovereignty over Kosovo has been quietly undermined by moves in support of de facto Kosovo independence under the probable authority of an oppressive Albanian leadership dominated by KLA members. Not all of these developments were planned by NATO or Washington, and not all are necessarily worse than alternatives. For instance, it is certainly legally and morally arguable that Belgrade since revoking Kosovo autonomy in 1989 had been responsible for such severe and systematic violations of the human rights of the Albanian Kosovar majority population as to have forfeited claims to exercise sovereignty over the province.

In effect, the merits of how to treat issues of transitional justice need to be addressed in each context, with due regard for the wellbeing of affected peoples. Kosovo is so troubling because this due regard seems to have been sacrificed all along to the exigencies of geopolitics, ranging from an interest in keeping NATO alive in the post-cold war setting to overcoming the shame of multiple failures in Bosnia, and finally extending to the illicit idea of fighting a risk-free "humanitarian war" at the expense of the target society.

The preceding analysis is not meant as a diatribe against the revival of efforts to impose criminal accountability in the setting of transitional justice, or otherwise. It is intended to underscore the dangers of exempting geopolitical actors from such accountability, as well as to demonstrate in the Kosovo setting, the harmful and distorting consequences of such an exemption. What such an examination suggests, above all else, is a principled approach to criminal accountability that is applied in light of the circumstances of a particular society. Such an approach is far more difficult to articulate when the locus of control is situated external to the society where the alleged criminality has occurred, especially when the relation of forces in that society remains unresolved.

The indictment of Milosevic as a war criminal is emblematic of such difficulties. The timing of the indictment is, as mentioned, a cause for suspicion, feeding Serbian beliefs that they were being overly stigmatized for developments in former Yugoslavia since 1989 compared to other actors. Also, the earlier efforts of the West to rely on Milosevic to represent Serb interests in negotiating the end of the Bosnian War in 1995 strongly fosters an impression of Western opportunism, as Milosevic's instrumental role in fostering ethnic cleansing in Bosnia was generally known at the time. By indicting Milosevic while he remained as head of state also inhibits any process of negotiating a Chilean transitional solution, and rather than helps the Serbian people achieve democratic governance, problematizes both the prospect and imposes on them a punitive regime of sanctions that is likely to be life-threatening for vulnerable portions of the population.

In conclusion, these critical comments are not meant to exonerate Milosevic or others on the Serb side for what has occurred in Yugoslavia during the 1990s. There is every reason to indict, convict, and punish Milosevic under the proper circumstances. But without such propriety, his indictment merely continues a cruel pattern of geopolitical manipulation that is shielded, even now, from reflection and revision.

© Richard Falk 2000

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