Britain and Its Allies Stall U.N. Probe of Serb Atrocities

By Katherine M. Metres

"Peace in the future requires justice, and that justice starts with establishing the truth." Thus concludes the final report of the Commission of Experts to investigate the violations of international humanitarian law in the former Yugoslavia.

Since the 1991 genesis of the Balkan conflict, the United Nations has sacrificed justice in pursuit of a peace settlement acceptable to Serbian aggressors. An ill-considered U.N. arms embargo tied the hands of the democratic, Muslim-led Bosnian government, and a vicious cycle was created: Because the ill-prepared and poorly armed Bosnian Muslims have been unable to defend themselves, the Serbian government and Bosnian Serbs have conquered and occupied 70 percent of Bosnia-Herzegovina, committing heinous human rights abuses in the process. Then because the Serbs held the military advantage, the U.N. shelved the principle of the inadmissibility of the acquisition of territory by force, saying that the only means of ending the bloodshed was to accede to Serbian acquisition of half of Bosnia.

Then, to add insult to injury, the U.N. hampered its own commission's efforts to get at the truth about ethnic cleansing and genocide in the Balkan war. This is the view of Professor M. Cherif Bassiouni, the distinguished president of DePaul University's International Human Rights Law Institute whom the U.N. appointed to chair the commission.

Bassiouni's Commission of Experts had its genesis in the fall of 1992 as a result of American anguish over reports of mass expulsions, torture, rape, and murders of civilian non-combatants, primarily by Serbian aggressors. On Oct. 6, the Security Council passed Resolution 780, which called for the establishment of a Commission of Experts to investigate whether any parties to the conflict had committed "grave breaches" of international humanitarian law. Such law includes the Geneva Conventions, which were created in 1949 to safeguard against future atrocities like those committed by Nazi Germany in World War II.

From the start, the U.K. was privately opposed to creating such a commission. Former British Foreign Secretary Lord David Owen, the European Community negotiator, felt that persuading Serb leaders to accept a cease-fire and partial withdrawal would be more difficult, if not impossible, when these same men were being accused of war crimes and threatened with prison. Britain's allies on the Security Council shared its resistance, while Russia (a longtime ally of the Serbs) repeatedly blocked the progress of the commission because Russian leaders feared it would reveal their fellow Slavs' overwhelming responsibility for the atrocities.

The United States was the Commission of Experts' strongest supporter, providing substantial data on the commission of war crimes, in addition to significant diplomatic and financial backing. The actions of Madeleine Albright, President Clinton's ambassador to the U.N., reflected the administration's opinion that "true reconciliation in former Yugoslavia will not be possible unless perceptions of collective guilt for atrocities have been erased and individual responsibility assigned." But once it became clear that Clinton would not follow through on his campaign promise to intervene militarily, "the United States did not have much of a voice," Bassiouni notes.

As a result of this internal dissent, the U.N. allocated absolutely no funds for commission investigation or data analysis. The General Assembly should have allocated resources on the basis of a request from the Secretariat's Office of the Legal Advisor, but no such request was ever made. Bassiouni says, "Obviously somebody was trying to prevent us from doing the work." The U.N.'s only contribution was $1.5 million in staff salaries and travel expenses for six professionals and a skeleton support staff. The money lasted only one year.

The rest of the commission's funding was to come from member-state donations. Not until May, seven months after the panel's establishment, was a voluntary trust fund ready to receive contributions. Although 24 governments contributed, many gave token amounts, providing a total of only $1.3 million. In a voice tinged with disbelief, Bassiouni points out that more than 10 times that amount was spent on the O.J. Simpson trial before the jury was even selected. Indeed, experts estimate that a comprehensive investigation of alleged crimes in Bosnia would have required at least $50 million.

The first chair of the commission, Fritz Kalshoven, quit in frustration over the shortage of funds, the lack of cooperation from the European states, and the rigid rules of logistics imposed on him by the U.N. bureaucracy. Allegedly he had been told by U.N. officials not to pursue the authors of the ethnic cleansing policy, Serbian President Slobodan Milosevic and Bosnian Serb leader Radovan Karadzic.

To replace Kalshoven, Secretary-General Boutros Boutros-Ghali appointed Bassiouni, an Egyptian American with a long-standing commitment to international criminal justice. When Bassiouni found that suitable U.N. facilities, computer capability, and additional personnel were unavailable, he decided to work out of DePaul and raise private funds for a database that could weed out duplicate incident entries and cross-reference incidents according to different criteria. The database cost $1.2 million, and "if it weren't for that, the tribunal in the Hague would have nothing," he says.

Due to the dearth of funds for direct investigations, however, the commission was forced to rely mainly on other sources: the parties to the conflict, third-party governments, non-governmental and intergovernmental organizations, and the media. Much of the information collected in this manner may not have risen to the level of evidence, since it was generally not recorded by persons with prosecutorial training.

Compilation and analysis of the reports, however, did provide a general picture that the commission was able to supplement with a few in-depth studies of specific incidents. The facts are horrifying: 200,000 civilians and 50,000 combatants killed, a half-million civilians taken to 600 prison camps and detention facilities, 50,000 cases of torture, an estimated 20,000 cases of rape, 150 mass graves, massive destruction of personal and cultural property.

Furthermore, with two million refugees living in camps outside their homeland, some observers note that the Bosnians have become "the Palestinians of Europe." Like the Zionists of Palestine/Israel, the Serbs of Bosnia have seized land from their neighbors and justified their actions on the basis of their victimization during World War II, when 200,000 Serbs were killed by Croats allied with the Nazis. They have used terroristic methods to bring about the departure of the indigenous population. The international community—Britain, in particular—did very little to stop them. In fact, the United Nations proposed partition, in direct contravention of the principles of self-determination and the inadmissibility of the acquisition of territory by force, and based on the anti-democratic principle of rule for a particular ethnic group.

A closer look at the details in the former Yugoslavia completes the picture of the worst brutality in Europe since Hitler's rampage: Men have been forced to castrate one another by biting the testicles off fellow prisoners, who then bled to death. Commanders ordered women and girls as young as six years old to be raped, sometimes with broken bottles or guns, or gang-raped for months until impregnated. In some occupied areas, all Muslim business owners and university graduates were executed. Soldiers were forced to slit throats, and an estimated 200 wounded were apparently dragged from a hospital to be executed and dumped in a mass grave.

"There is no 'moral equivalence' between the warring factions."

This last incident the world may never be able to confirm, since Serb occupiers in Croatia granted, then revoked, permission for the team to investigate the mass gravesite alleged to contain the bodies. The Serbs later regranted permission, but winter weather required the team to postpone the work until April, by which time the U.N. had terminated the commission.

All of the Serbian parties have refused to recognize the legitimacy of the commission and of its successor institution, the tribunal, while the Bosnian Muslims and the Croats "cooperated with us entirely," says Bassiouni. The ironic result of the occupiers' stonewalling is that the only mass gravesite that was investigated was one that contained the bodies of 19 Serbs massacred by Croats. That project was chosen to demonstrate that violations against all of the parties would be investigated and considered to be serious.

Because all of the parties have at times committed "grave breaches" and all of them have at times been victims, Lord Owen at one point suggested that all of the ethnic groups were somehow equally guilty, a position that he hoped would defuse the Serbs' defensiveness in negotiations. But the commission's final report paints a different picture: repeated and continuous violations by the Serbs in defiance of international law, some Croat breaches which were publicly deplored by their authorities, and significantly fewer violations by the Bosnian Muslims. As to the victims, they have been predominantly Muslims, a number of Catholics (Croats), and fewer Orthodox (Serbs). The report says, "It is clear that there is no factual basis for arguing that there is a 'moral equivalence' between the warring factions."

Indeed, the commission's in-depth studies lent support to accusations of "genocide," a term that has been avoided by world leaders because it constitutes a moral imperative for sustained intervention that only the "non-aligned" countries (with Turkey volunteering ground troops) have squarely backed. Demographic data on the Bosnian district of Prijedor, for example, show that while the Serb population increased by almost 6,000 between 1991 and 1993, the Muslim population dropped from 50,000 to only 6,000, and the Croat community of 6,000 was halved. The commission attributes this reduction in the native population to murder and deportation tactics that were deliberately pursued by the Serbs and which "qualify as crimes against humanity." The report continues, "It is likely to be confirmed in court under due process of law that these events constitute genocide."

In order to press charges using the Genocide Convention, one must prove intent to destroy a religious or ethnic group. An article originating in the former Yugoslavia revealed a 1991 plan by the Yugoslavian department of propaganda for ethnic cleansing policies including "mass liquidation of Muslims,...raping women, especially minors and even children," organizing "concentration camps," torture, and settlement of Serbs in areas from which terror-stricken Muslims had fled.* The object of this campaign was to annex the occupied areas to Serbia, a scenario that now is well underway.

Attuned to the importance of rape tactics for destroying the Muslim will to resist, the commission undertook the world's largest rape investigation ever. The study was funded by the Dutch government but, again, the U.N. hampered the effort. Although the money was donated in the spring of 1993, the U.N. did not make it available to the commission until January 1994. Paired with an abrupt U.N. decision to terminate the group's work in April, this delay severely hampered the commission's ability to investigate the use of rape as an instrument of war. The ground-breaking study did find that the Serbs employed rape to humiliate Muslim women (many of them virgins), to destroy their marital and child-bearing prospects, and to discourage Muslim refugees from wanting to return home. Thus, it was hoped that the Muslim community would not be able to rebound and regenerate its population.

Some of this information may be of limited use for prosecution. Marcia McCormick, the DePaul Institute staff attorney who conducted the study on rape and sexual assault in the database, explained the problem: "We've had no control over the interviewing process, and most of the information that was collected by non-governmental and intergovernmental organizations and governments has been not geared toward physical evidence for any trial...So a lot of the information that we have will probably not be usable for a prosecution. It's really going to take the tribunal gathering information on its own." This is a sad commentary when in fact the supposed purpose of the commission was to complete the investigatory portion of the prosecution effort.

However, the study did establish over 500 cases with identified witnesses, victims, and perpetrators. In spite of funding problems which seemed designed to make the commission fail, the rape investigation was making important headway. Why, then, was the commission ended before it could complete this work? UNSC Resolution 827 said that the commission should proceed until a prosecutor was in place. In addition, the secretary-general had agreed with the commission on a July 31, 1994 completion date. Ignoring this agreement, the senior U.N. bureaucrats in the Office of Legal Affairs interpreted Resolution 827 to mean that the commission should end since a prosecutor had been appointed, even though he had quit.

Bassiouni says, "They stopped the commission before the commission ended its work and before the Security Council made any decision. And nobody in the Security Council was willing to come to the rescue of the commission." Asked by the Washington Report why U.S. Ambassador Albright didn't speak up, he says, "The U.S. at that point was confused and probably thought the prosecutor was going to be appointed at any moment and would take over the job right away." "Confused" seems an apt description of the vacillating, deferential Bush and Clinton policies on Bosnia, which have provoked three protest resignations among disheartened State Department career officers and were a major factor in the retirement of Assistant Secretary of State Warren Zimmerman.

According to Bassiouni, the real reason for the termination was that the rape investigators were finding evidence that rape was a systematic Serbian policy. At least two rapists apologized to their victims, saying, "I have to do it; otherwise, they will kill me."

Stunning Indifference

In the midst of this stunning indifference by the United Nations to the success of its commission, the final report noted how much international attention mattered. This attention came not from politicians, whose empty threats the report correlated with increased Serbian attacks against Sarajevo, but from the media. The fact that the number of rapes decreased as the amount of media coverage increased "could indicate that the media attention caused the decline."

Since media attention proved so important in decreasing rape, did the United Nations try to amplify the media impact of the commission's final report? On the contrary, the U.N. released the report without a press conference or even so much as a press release on a Friday afternoon, when correspondents were least likely to cover it. And at the time of this writing, the U.N. had yet to publish the 3,000-page appendix to the report, which it delayed because it contains details about cases and could upset the Serbs. Asked to comment on the lack of press, the U.N. information office in Washington first said that it is "very difficult to find someone in New York who is following this issue closely," then noted that a "public letter" from Boutros-Ghali was released with the report.

If this is an example of U.N. commitment to the process, can the outlook for justice be anything but grim?

In May 1993 the Security Council established the International Criminal Tribunal for the Former Yugoslavia to prosecute the perpetrators of Bosnia's horrors. According to Resolution 827, the secretary-general was supposed to nominate a prosecutor, who would be subject to the confirmation of the Security Council. Boutros-Ghali chose Bassiouni, since the chair's familiarity with the evidence would allow him to proceed more quickly with indictments. But the British argued that Bassiouni's Muslim background would make him unduly sympathetic to the Muslim victims. This pseudo-issue provided a convenient, if bigoted, excuse for the British to oppose a qualified candidate who would be sure to press expeditiously and vigorously for the conviction of war criminals.

It was not the first time in the Balkan crisis that Western leaders have revealed their anti-Muslim bias. Both in the U.S. Congress and in the halls of Europe, the fear of a Muslim-dominated state has contributed to reluctance to help the legitimate Bosnian government. Given the democratic, multi-ethnic nature of the Bosnian state and the total absence of fundamentalist activity there, this fear said more about Western prejudices than about Bosnian political and social realities.

Worse, by failing to defend Bosnia's borders or even to allow the Bosnians to defend themselves, the West is sending a message that Muslim lives are not important, that Muslims cannot hope for equal protection under international law, and that criticism of the lack of democracy in the Muslim world is empty rhetoric since the West will give only token help to a democratic, Muslim-led state.

Political Vaudeville

Rejecting the British line on Bassiouni, non-aligned members of the Security Council joined the United States in backing him, but Albright did not use her influence as Council president to lobby for him. The Russians vowed to veto anyone from a NATO country, and the search for a prosecutor turned into political vaudeville as the Council failed to reach consensus for 14 months. A Venezuelan with political ambitions at home accepted the appointment only to quit four months later to become his country's interior minister.

In July 1994, the Council finally agreed on Judge Richard Goldstone of South Africa as prosecutor. Goldstone had distinguished himself in his own country by heading a respected 1993 investigation of pre-election violence aimed at keeping Blacks from the polls. In electing the 11 judges from a variety of nations, the U.N. chose people with excellent human rights credentials. However, not a single Muslim was included among them.

Like the commission, the tribunal is seriously underfunded. In its first year, the tribunal received $12 million from the United Nations and $5 million from three member states. In addition to money, the Clinton administration contributed 24 experts and their salaries and expenses, resulting in a total staff of 45 prosecutors and investigators. But not enough countries are helping. At Nuremberg, 100 prosecutors were needed for only 22 indictments, and Bassiouni's commission established around 6,000 cases. The tribunal should be granted the full $34 million it has requested for 1995. To put this number in perspective, it is less than half the amount that was spent on the recent investigation and prosecution of Mafia boss John Gotti in New York City.

Besides insufficient funding, many pitfalls remain on the road to justice in the former Yugoslavia. First is the possibility that negotiators will include an amnesty for senior Serb political and military leaders in a peace settlement. As the world has most recently seen in the case of Haiti, the authors of atrocities are often hailed as "men of honor" when they are forced to cede their oppressive rule. Furthermore, Western leaders who supported the arms embargo and opposed military intervention are not eager for proceedings that will remind the world of the consequences of their inaction.

A second concern is whether the persons indicted by the tribunal will be extradited. Since the rules of procedure forbid trials in absentia, justice rides on whether indicted persons are surrendered by the governments of the states in which they are found. Four persons accused of war crimes already are being held by various European countries after refugees identified their tormentors and demanded arrests. No one expects the offending governments to surrender their top people, but the Serbian government may be interested in sending up sacrificial lambs from among their Bosnian Serb allies for public relations purposes. The rest of the indicted persons will remain prisoners within their own borders indefinitely, unless a regime change—perhaps prompted by Security Council sanctions—forces them to stand trial.

Even if the tribunal never tries the worst offenders, some third-party governments may hold trials, relying on the theory of international jurisdiction. Or concerned citizens, like University of Michigan law school professor Catharine MacKinnon, may seek justice independently. Working with a Croatian women's organization, MacKinnon brought a class-action lawsuit in New York City against Radovan Karadzic, the leader of the Bosnian Serbs, for violating the Geneva Conventions. Not wanting to make a judgment where there were no means for enforcement, the court dismissed the case on the technicality that only states can commit war crimes.

20th Century Miscarriages of Justice

The history of the 20th century is filled with such miscarriages of justice. In the 46 years since the adoption of the Geneva Conventions, selective enforcement of international human rights norms has been the rule. In World War I, the Allies collected information on war crimes but later decided the terms of the Treaty of Versailles were harsh enough without prosecutions. The Germans promised to hold trials, but then convicted only six people and imprisoned the worst offender for only a year.

In World War II, the Nuremberg and Tokyo trials provided a victors' justice, but there was never any accounting for the Allied decisions that cost hundreds of thousands of civilian lives in Dresden, Hiroshima and Nagasaki. Likewise, Saddam Hussain of Iraq, the Khmer Rouge of Cambodia, Idi Amin of Uganda, and countless others have gotten away with murder, not to mention the Israeli occupiers of Palestinian, Syrian and Lebanese territory.

Because there is no overarching authority to execute judicial demands, international criminal justice is presently "a combination of political maneuvering with a quasi-legal system," as DePaul's McCormick puts it. The commission's final report recommends a solution: establish—and fund—a permanent international criminal tribunal. Only by doing so can the world community have a permanent recourse when atrocities are committed.

But don't hold your breath. The United Nations has been considering the question since 1947, and in October of last year a U.N. committee voted in favor of a U.S./U.K. proposal to delay consideration of the draft statute for yet another year.

In the meantime, Balkan victims await justice. Two million refugees, who probably will never be able to reclaim their homes, demand no less than the acknowledgment and accounting of their suffering that the commission and tribunal were established to provide. Bassiouni speaks on their behalf: "What's the point of having investigations and tribunals that will not be able to achieve their purpose? Who are we deluding? Is this an exercise in hypocrisy?"

You have to wonder.

Katherine M. Metres, a 1994 honors graduate of the University of Michigan, received the Virginia Voss prize for excellence in journalism and the Outstanding Undergraduate award in recognition of her scholastic excellence and commitment to human rights.