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Judging War Crimes is More Complicated Now than It Was at Nuremburg

THE BALTIMORE SUN

Almost half a century has passed since the U.N. War Crime Commission first met in October 1943. (The commission, composed of 15 Allied nations, predated the United Nations Organization formed in San Francisco in 1945.) Throughout, the United States was the moving force in the organization and prosecution of both the Nuremberg and the Tokyo trials.

That the United Nations should now, after a hiatus of 50 years, have taken the first step of establishing another war-crimes tribunal to try the perpetrators of atrocities in the disintegration of the former Yugoslavia is not merely fortuitous. Conditions in the world today are much as they were at the end of World War II and quite different from the period in between.

In 1945, the United States led a coalition of victorious powers that no one could challenge. Then, speedily, this broke into two warring camps -- East and West -- whose goals and policies were diametrically opposed and largely based on expediency, with morality and international law subordinated.

Now, with the breakup of the Soviet Union and the East Bloc, the United States is again the world's paramount power and issues are not seen starkly in terms of communism and capitalism. For the first time in two generations, the world is undergoing a resurgence of conscience.

Still, the complexities of organizing such a trial are far greater greater today than they were then. They may, in fact, prove a fatal impediment. And should they prove surmountable, U.N. members, once their current sense of outrage wanes, may have second thoughts about the Pandora's box they are threatening to open.

In 1945, it was not a question of the world judging the transgressors, but of the victors judging the vanquished. In Europe, not even the secondary U.N. powers were admitted to the proceedings. The United States took the lead in dictating the terms under which they were held, it collected and selected most of the prisoners and the bulk of the evidence, and it handled the administration, including the preponderance of the interrogation. It formulated the three broad charges: Crimes Against Peace, including the launching of aggressive war; War Crimes, which were crimes against the conventions of "civilized" warfare; and Crimes Against Humanity, which encompassed all other bestial acts.

The prosecutorial powers decided the rules of evidence, including what was admissible. What clearly was inadmissible, from the Allied point of view, was any reference comparing their actions to those the Germans were accused of. Most culpable, )) of course, were the Soviets -- who had greased Hitler's way and divided Eastern Europe with the Stalin-Ribbentrop Pact; had executed the bulk of the Polish officer corps; and were perpetuating the same brutal concentration camp operations of which the Nazis were accused and convicted.

But none of the other powers' hands were exemplarily clean. U.S. submarine warfare in the Pacific was as merciless as German in the Atlantic. Allied troops, as well as German, had shot prisoners of war -- twice during the Sicily campaign Gen. George S. Patton Jr.'s men perpetrated sizable massacres, slaughters that Gen. Dwight D. Eisenhower chose to overlook.

While the rules of war may be quite specific, the battle for life is brutal, bloody and amorphous. There are no referees blowing whistles on the battlefield.

If it was difficult enough to convoke war-crimes tribunals by fiat in 1945, it is mind-boggling to think how it might be done by world consensus in 1993.

It is inconceivable that the approach to such trials would not be judicially balanced, yet the perceptions and agenda of the Muslim world are likely to be far different from those of the West. While the Serbs are surely the principal transgressors, it is doubtful that the Croats and Bosnian Muslims are without sin. In contrast to what happened 50 years ago, today it is unthinkable that, if one side is put into the dock, the other would not be also.

And what of the casuistry of such a trial, when Iraq's Saddam Hussein, who in a decade launched two aggressive wars -- against Iran and Kuwait -- and brutally suppressed the Kurds and Shiites, is currently the world's No. 1 perpetrator of Crimes Against Peace and Crimes Against Humanity? And what of Cambodia's Pol Pot, with whom the United Nations is negotiating, though the blood on his hands rivals the that of the Nazis? What of such sponsors of international terrorism as Libya's Moammar Kadafi? Or the brutalities perpetrated on a far wider scale than Bosnia in Angola, Mozambique and other parts of sub-Saharan Africa?

What if, at some time in the years to come, the United States were to become involved in another contra-type operation or invasion of Grenada? Or if Russia, with a multitude of volatile former Soviet republics on its borders, intruded into an Armenian-Azerbaijani conflict or launched a pacification operation along the lines of Hungary in 1956? What would the United Nations do then?

The onset of the Cold War made the post-World War II trials a curiosity before they were even concluded. But to single out the Bosnian conflict in a world full of aggression and inhumanity would be the height of hypocritical selectivity. Unless -- unlike the Nuremberg and Tokyo trials -- it were not to be just a one-shot but an exemplar for consistent future action.

That, of course, is the rub. The world may agree on the desirability of punishing "ethnic cleansing" and stopping its spread. But how many nations would be willing to bite the bullet and in the future subordinate national interests to international law?

The re-Balkanization that produced the Yugoslavian turmoil is already a phenomenon throughout former communist lands and likely to spread elsewhere, with ethnic groups asserting rights previously suppressed and coming into conflict with each other.

There is a clear and present need for the establishment of a tribunal -- not on an ad hoc basis for Bosnia-Herzegovina, but for adjudging such crimes everywhere, as well as incidents of international terrorism.

vTC A Kadafi could scarcely refuse to surrender the suspects in the Pan Am 103 bombing to such a tribunal -- if he did refuse, he would become an accessory. And if it were not possible to bring a Hussein before such a court in person, a trial in absentia could declare him an international outlaw and make him fair game for any opposition, foreign and domestic -- a personalization of illegal activity that could be far more effective than sanctioning an entire nation.

The permanent existence of such a tribunal might thus well act as a deterrent against international violence by national leaders -- and deterrence, after all, is one of the principal purposes of laws and systems of justice everywhere.

Robert Conot is the author of "Justice at Nuremberg," a history of the trial of the major Nazi war criminals. He wrote this for the Los Angeles Times.

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