|By Roy Gutman
Ten months after NATO troops took charge of security in Bosnia-Herzegovina under the Dayton peace accords, a reporter for the Boston Globe toured northern Bosnia in search of indictees charged by the Hague War Crimes Tribunal.
In the British-controlled northwest sector, the former commander of the notorious Omarska concentration camp was employed as deputy police chief in Omarska, and three other Hague indictees were on the roster as policemen. In Bosanski Samac, in the American sector, an indictee sat down for an interview in his office where he worked as the town’s top official. That was October 1996. In the weeks that followed, reporters visiting Foca, southern Bosnia, in the French zone, spotted Bosnian Serbs indicted for systematic rape making the rounds of cafés and bars; others visiting Vitez, central Bosnia, a Dutch-controlled area, sighted Bosnian Croats indicted for massacres of civilians in free circulation.
Moreover, the two top Serb leaders, military commander Ratko Mladic and political leader Radovan Karadzic, traveled freely on roads patrolled by American and French troops. Both were indicted for genocide, the most heinous crime in the lexicon.
The tolerance of impunity by leading world powers illustrates the central problem of the laws of armed conflict: their implementation relies entirely on the will of political leaders. And none of them, starting with the United States, chose in the first nine months of their deployment to risk a life to impose the laws which their predecessors had drafted, signed, and ratified. Subsequently, they arrested at least a half dozen indictees, while allowing Karadzic to go into seclusion and then hiding.
All four of the 1949 Geneva Conventions oblige States to search for and try those suspected of grave breaches, regardless of the suspect’s home country or the site of the crime. “Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to have committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts,” or hand them over “to another High Contracting Party concerned.” The International Committee of the Red Cross (ICRC) Commentary states that the suspect can be handed over to an international criminal tribunal.
The United States, Britain, and France signed and ratified the conventions, as did every other participant in the U.S.-led “Implementation Force” (IFOR) and later “Stabilization Force” (SFOR). All States are also obliged under UN Security Council resolution 827 to cooperate with the tribunal and “take any measures necessary under their domestic law” to comply with orders or requests for assistance from the tribunal. NATO, however, devised, and later reinterpreted at its convenience, its own rule for troops: IFOR troops will detain war criminals “only when they confront them in the normal course of their assigned mission.” When challenged, top NATO authorities said States’ obligations under the Geneva Conventions were not their responsibility and might break the consensus underlying the deployment.
Neither NATO, nor SHAPE (the Supreme Headquarters of the Allied Powers in Europe), nor IFOR, as an entity, “is a party to the 1949 Geneva Conventions or Protocol I thereto,” Max Johnson, the legal adviser to the supreme allied commander in Europe, wrote Amnesty International in March 1996. He added that IFOR, as a multinational force under the operational command and control of NATO, “should not be equated to a State in terms of international obligations.” IFOR, moreover, was “not an army of occupation” that was “free to do anything it pleases.” NATO’s reluctance to arrest war criminals reflected “the political realities in the region” and the fear that a more aggressive posture “might not achieve consensus” among IFOR’s thirty troop-contributors.
It was the same “not my department” attitude of the United Nations. “We go by the mandate. We are not authorized to enforce law and order,” Gen. Manfred Eisele, Assistant Secretary-General for Planning in the Depart-ment of Peacekeeping Operations, said in a 1998 interview. “The real responsibility for the apprehension of indicted war criminals lies with the local authorities.”
By such logic, the deputy chief of police in Omarska should arrest himself.
In a sense, the arrival of NATO in Bosnia to replace the failed UN mission gave the indictees a new lease on freedom. IFOR, under its mandate to separate military forces, effectively prevented either Bosnian political entity from arresting any indictee outside its jurisdiction. Thus NATO, in effect, took on the role of shielding indictees.
At the heart of NATO’s stance was the reluctance of the U.S. executive branch to risk the lives of U.S. ground troops. “There are obviously political considerations involved in this issue [of whether IFOR was obliged to arrest],” Judith A. Miller, the Pentagon’s general counsel stated in September 1996. But then she went on to reinterpret the Geneva Conventions, ignoring universal jurisdiction against grave breaches. “We read these provisions as applying to the territory of the United States, not as a universal obligation or carte blanche to search for alleged war criminals in the sovereign territory of foreign countries,” she told the American Bar Association.
The U.S. and NATO attitudes raise profound questions. Amnesty International concluded that Miller’s arguments “constitute nothing short of a calculated policy of evasion of legal obligations imposed by international law.” Professor Diane Orentlicher of American University noted that according to the logic stated by NATO official Johnson, “any State could violate the Geneva Conventions with impunity merely by joining other countries in a military alliance.”
In fact, the legal case is only an excuse. “It’s all political decisions dressed up in legal rhetoric,” said a knowledgeable Pentagon official.