Adjudicating War Crimes In The Former Yugosalvia

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Adjudicating War Crimes In The Former Yugosalvia Essay, Research Paper An Analysis of the United NationsInternational Tribunal to Adjudicate WarCrimes Committed in the FormerYugoslavia: Parallels, Problems, Prospects “You cannot qualify war in harsher terms than I will. War is cruelty, and you cannot refine it.” William Tecumseh Sherman(note 1) I. Introduction Wartime atrocities against humankind have existed for millennia and are a regrettable, yet attendant,component of any war. Certain acts of war have always provoked outrage, although only recentlyhas indignation at such acts been expressed by uninvolved third parties.(note 2) Enforcement bysovereign States of the laws and customs of war has similarly existed for many years, yetprosecuting the offenders has often been

less than successful. As Theodor Meron notes, “except inthe case of a total defeat or subjugation – for example, Germany after World War II – prosecutionsof enemy personnel accused of war crimes have been both rare and difficult.”(note 3) Indeed, theAllied International Military Tribunal (IMT) established at Nuremberg in 1945 would appear to be atrue anomaly: no similar international war crimes tribunal preceded it and none has followed.(note 4)However, the past inability of the world community to establish a permanent international criminalcourt that would, among other duties, prosecute those who violate the laws of war, should notdiscourage the United Nations from charging and attempting to prosecute those individualsresponsible for the appalling atrocities being

committed in the former Yugoslavia. In a laudablemove, the Security Council on February 22, 1993, resolved to create an international tribunal toprosecute the Yugoslav offenders;(note 5) it subsequently adopted the Statute of the InternationalTribunal on May 25, 1993.(note 6) Unfortunately, almost six months passed before the Tribunalconvened its first session in The Hague on November 17, 1993. Further, the session was primarilyceremonial and no actual business was conducted.(note 7) Indeed, the fact that the Tribunal’s firstformal substantive session was scheduled for April 24, 1994,(note 8) almost one year after it wasestablished, seems to validate the beliefs of those who view the static Tribunal as a whollyceremonial body designed to appease the conscience of an

international community whose initialmoral outrage at the atrocities has gradually deteriorated into apathy and resigned acceptance. Yet, should the Tribunal ever begin to deliberate in earnest, it will first need to surmount a variety ofhurdles not faced by its predecessor at Nuremberg. The Tribunal’s triers of fact are neither thevictorious nations nor do they represent victims of wartime atrocities in the former Yugoslavia. Thus,they have no personal, vested interest in bringing the accused to trial. Securing the defendants willbe a much more difficult (if not impossible) task than it was for the Allies after World War II.Obtaining probative evidence will be a race against the ability of the violators to destroyincriminating documents. Petty politicking and world disinterest

may eviscerate the potentialmandate of the Tribunal, while the United Nations’ need to negotiate a peace settlement with theoffenders themselves may very well destroy any remaining incentive for the Tribunal to begin workin earnest. This Note contrasts and compares the nascent United Nations International Tribunal to AdjudicateWar Crimes Committed in the Former Yugoslavia with the International Military Tribunalestablished by the Allies at Nuremberg in 1945. What are the parallels between the two tribunals?Did both confront similar hurdles at their inception? Or did the creation of each tribunal give rise torespectively unique problems? How much of a substantive legal basis does the Nurembergexperience provide for the United Nations International Tribunal? Finally, what are the