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The World and Yugoslavia's Wars, Edited by Richard H. Ullman
Abram Chayes and Antonia Handler Chayes
Writing the history of the future is a dangerous enterprise. As we were completing this chapter, first, warplanes from the North Atlantic Treaty Organization (NATO) struck Bosnian Serb targets with a seriousness and persistence that seemed impossible earlier; then what appeared to be end–game negotiations began under American leadership; and a tentative cease–fire was secured and then turned into a fragile peace by the General Framework Agreement initialed at Dayton, Ohio, on November 21, 1995. 1
Even so, some of the basic contours of the situation remain the same. None of the parties to the conflict emerges from it with the military capability to achieve a decisive victory over the others. And the outside powers, despite their newfound energy and purpose, still remain unprepared to commit the ground forces for the time period necessary to impose a settlement if the Dayton accords break down.
Ever since the end of the first winter of stalemated siege warfare, it was apparent that the fighting in Bosnia would be brought to an end only by a peace agreement, brokered by the major powers and the United Nations in some combination, and accepted, however grudgingly, by the three Bosnian communities. Even then it was not too early to think about picking up the pieces and charting the painful return to normal life—which eventually would mean healing the wounds of communal hatred. Now it would be negligence not to think beyond the end of hostilities.
Just as outside intervention ultimately was necessary to bring about the Dayton accords, there will be a continuing and substantial role for the international community in the aftermath. Despite real temptations to turn away through sheer exhaustion, the international community will have a strong interest in maintaining some sort of peace. Among the central tasks that must be assigned in whole or in part to international bodies in postwar Bosnia are peacekeeping (in its original sense of monitoring and supervising an agreed settlement); economic and social rehabilitation and reconstruction (including resettlement and reintegration of refugees); and the treatment of war crimes and other crimes against humanitarian law.
The way in which such tasks are approached is heavily conditioned by the kind of settlement that is ultimately implemented as the provisions of the Dayton accords are implemented and then modified through practice. In principle, the settlement could, at one extreme, have been imposed on the parties by outside force or, at the other, be freely accepted by the parties. It is apparent that all three of the tasks would look very different under each of these polar outcomes. Under an imposed settlement, the military aspects would look much like an occupation; an external authority would bear major responsibility for reconstruction activities; and what would be in essence the governing military power could assure the apprehension of war criminals and their prosecution before the U.N. War Crimes Tribunal. Under a voluntary settlement, on the other hand, only more traditional peacekeeping procedures could be undertaken, reconstruction might be more easily left to local and nongovernmental processes, and the prosecution of war criminals would be much more difficult.
Of course, the Dayton accords and their implementaion were not at either of these extremes. International force sufficient to end all acts of war and establish control over the territory has not been deployed, and it seems equally clear that the parties will not resolve the issues underlying their conflict without considerable outside prodding. We cannot predict where developments will fall on the range between coercion and genuine agreement. Nor can we predict with what degree of commitment the parties will enter into or outsiders enforce the final settlement beyond the end of the first year, when most NATO units are scheduled to depart. Yet the characteristics of a postwar regime will vary as the settlement approaches one or the other pole. Thus, it may be useful to spell out at greater length the manifold implications of international involvement in postwar Bosnia.
Postwar Peacekeeping
In mid–1994, the United Nations Protection Force (UNPROFOR) in the former Yugoslavia comprised 37,000 military personnel and police officers (primarily British, French, and Canadian troops), most of them in Bosnia. UNPROFOR was originally established under chapter VI of the U.N. Charter to implement the Geneva Agreement between the parties to the war in Croatia and was conceived as a relatively standard peacekeeping operation, though it ran into difficulties even in that role.
The force first entered Bosnia in the spring of 1992 in the form of a small contingent of military observers dispatched to Mostar as the situation there worsened. In June, after agreement was reached on handing the Sarajevo airport over to UNPROFOR, more substantial elements were deployed to "supervise" the withdrawal of heavy weapons and antiaircraft emplacements to agreed locations and later "to secure the security and functioning of Sarajevo airport and the delivery of humanitarian assistance." 2
The Security Council invoked its chapter VII powers for the first time in August, when it authorized "all measures necessary to facilitate...the delivery...of humanitarian assistance to Sarajevo and wherever needed in other parts of Yugoslavia." 3 The resolution was directed to member states, not the peacekeeping force, but in September the Council decided to turn over the job of protecting humanitarian assistance to UNPROFOR. 4 The force was enlarged for this purpose, but the limits on its authority to use force were not expanded.
This initial mission of securing the delivery of humanitarian aid to the civil population during an ongoing war was a comparatively novel use of U.N. forces, rather different in its demands from the monitoring of cease–fires and peace accords or the interposing of troops between opposing forces that were the staples of many years of U.N. peacekeeping experience. Operational requirements, and particularly the potential need for limited use of force, were not well understood. UNPROFOR was lightly armed and not large enough to undertake combat operations on any significant scale. Its rules of engagement confined it to the use of force only in "self–defense." In practice, the political and military leadership adopted a very narrow construction of self–defense, and although there seems to have been some variation among national contingents, for the most part, UNPROFOR troops did not fire even when fired upon. Indeed, in late 1994 and again in May–June 1995, hundreds of U.N. troops were taken hostage by the Bosnian Serbs without offering resistance.
In October 1992 the Security Council invoked chapter VII in resolution 781 to establish a "no–fly zone" over Bosnia and yet again to proclaim "safe havens" in Sarajevo and half a dozen Bosnian Muslim villages, an important innovation that significantly expanded the UNPROFOR mission. 5 By that time, the practice as to the use of force was already established and, in the absence of a specific decision by the Security Council, remained unchanged. It was contemplated that UNPROFOR might call on NATO air power to enforce these Security Council mandates, but although intimations and threats of air strikes were frequent, mostly from U.S. quarters, the attempts to enforce the Security Council decisions had little immediate effect. Until the large–scale air strikes in September 1995, more than two years after the resolutions were passed, they had been backed up by little more than symbolic action.
Among the most frustrating aspects of the conflict in the former Yugoslavia was the apparent ineffectiveness of the peacekeeping forces. It is true that the United Nations never undertook the tasks of imposing a settlement or punishing the Bosnian Serbs for "aggression" or other offenses. UNPROFOR's mission was first limited to ensuring the delivery of humanitarian aid and later to policing the no–fly zone and then the very difficult task of protecting the safe havens proclaimed by the Security Council with inadequate forces. These distinctions were not always clearly drawn even by political leaders, much less by the media and the general public. Indeed, they were sometimes deliberately obfuscated. As UNPROFOR proved itself impotent in the face of repeated refusals by the Bosnian Serbs to comply with Security Council decisions, the United Nations itself was increasingly humiliated and discredited. Yet despite the general disappointment with the performance of the United Nations, it will still play a major role in the implementation of the civil police agreement, primarily in connection with refugees, humanitarian efforts, and the many tasks of rebuilding a shattered society. The NATO Implementation Force (IFOR) has the critical action on the military side, although the withdrawal of the Serbs from eastern Slavonia remains a U.N. responsibility. The ongoing division of labor among the different organizations and their ability to coordinate their efforts is uncertain, but the requirements to do so inevitably complicate the management of any peacekeeping effort.
The military provisions of the Dayton accords, which condition the requirements for the peacekeeping force, contemplate some force reductions, at least for the Serbs and Croats. They do not call for demobilization and disarmament of the opposing forces. Indeed, given the territorial division, each side can be expected to continue to insist on its right to maintain its own military establishment. The Dayton agreement does require all parties to withdraw military personnel and redeploy heavy weapons to zones away from territorial borders. But experience—in Cambodia, in Somalia, and on the scene in the Krajina—suggests that it will be very difficult for a peacekeeping force to carry out such provisions without recourse to more coercive power than it is likely to have or be permitted to use.
Thus, there will be regular military units and armed irregulars on all sides. In such circumstances, the most likely mission for a peacekeeping force is what has come to be called classical peacekeeping: patrolling the newly assigned territorial boundaries to keep the regular armed forces apart and trying to suppress any continued fighting by actual or alleged irregulars. A good deal of effort has gone into planning the size, composition, and rules of engagement of the peacekeeping force, but a number of difficult issues have not received much public attention.
Size and Composition
IFOR, the NATO peacekeeping force, is on the order of 60,000 troops, one third of them American. The Clinton administration had argued forcefully that the force should have a significant U.S. component, if for no other reason than to preserve the European alliance. One of the many grounds on which Britain and France resisted U.S. efforts to induce UNPROFOR to adopt more aggressive and, thus more risky, tactics was that the United States had been categorically unwilling to expose its own ground troops. The serious problems of command and control, and some U.S. domestic concerns, are now met by the NATO mantle. But it has elevated issues of legitimacy abroad, and particularly exacerbated the tensions between the West and Russia. A major potential problem was resolved by the quick agreement for the participation of a substantial Russian component under U.S., not NATO, command. Military command–and–control arrangements in Bosnia are not likely to suffer from the deficiencies and contradictions of U.N. operations in Cambodia (UNTAC) or Somalia (UNOSOM). But the necessity for the United Nations and other international entities, including nongovernmental organizations (NGOs), to carry out a broad range of social and economic functions whose activities will have to be coordinated with and protected by the military complicates the broader issue of command and control. If some form of American military training of Bosnian Muslims is also going on simultaneously even through private groups, the military problems facing a peacekeeping force may increase. A comprehensive plan that anticipates unpleasant turns must be well developed, well understood, and supported by the relevant members of the Security Council and their domestic constituents, if earlier command–and–control mishaps are to be avoided.
Use of Force
IFOR has been deployed pursuant to a resolution of the Security Council authorizing it under chapter VII to employ "all necessary means including the use of force" to carry out its mission. Nevertheless, it is very doubtful that the countries supplying troops, having failed to do so heretofore, will permit them to be used in large–scale offensive missions on the ground to "enforce" the provisions of the peace settlement. The wisdom of such a course is equally doubtful. Somalia is an object lesson in the difficulties and dangers of shifting from peacekeeping to peace enforcement against armed and locally supported irregular units, even when the peacekeeping force commands significantly more powerful formations.
NATO authorities have made it quite clear that the peacekeeping force will not be bound by the rules of engagement as heretofore interpreted in Bosnia. The principal traditional limits on peacekeeping forces are that they act with the consent of the parties and that they use force only in self–defense. But these are not self–defining terms, and in the past they have provided considerable leeway for energetic action by U.N. forces.
Consent to the deployment of the force and to its mission was, of course, given by the central authorities of the Bosnian Muslim–Croat and Serb "entities" when they accepted the Dayton accords. That consent, once given, should continue to operate at least until someone at a similar level is prepared to take public responsibility for withdrawing it. In the past, the principle of operation by consent did not require the specific agreement of local civil or military authorities on the scene, much less of irregular forces, to every action of the U.N. forces carrying out their mission.
Similarly, "self–defense" need not be limited to instances in which a passive peacekeeping unit is fired on by attacking forces. The following excerpts from communications of the U.N. secretary–general defining the limits of self–defense for the force in Cyprus (UNFICYP), a chapter VI operation, give some sense of the scope of the term in past U.N. practice:
Examples of situations in which troops may be authorized [to use force] are:
The secretary–general later reported that he "intend[ed] to proceed on certain assumptions and to instruct the force accordingly":
There was no objection to these "assumptions" from the Security Council, so they continued to define the activities for the effectuation of which UNFICYP could use force in self–defense. These provisions and understandings, which provided significantly greater latitude for the use of force than has been exercised by UNPROFOR, were carried over into subsequent peacekeeping operations, for example, UNEF II (the U.N. Emergency Force) in 1973.
The judicious use of such expanded interpretations of consent and self–defense would permit a Bosnian peacekeeping force to adopt a much more aggressive posture than UNPROFOR when necessary, without moving to large–scale combat. It is true that such a policy is not without the risk of incurring some casualties, though if the Cyprus experience is any guide, the long–term casualty rate would not be very high. UNFICYP, originally interposed between two warring communities, has kept the peace for 30 years, during which time the hostility, ethnic and otherwise, between Greek and Turkish Cypriots has not faded. Although UNFICYP has been deployed much longer than anyone thought likely, the costs of continued hostilities or superpower intervention would surely have been greater.
In Bosnia, despite NATO's newfound assertiveness, the forces of the parties to the cease–fire or, more likely, "irregulars" might be inclined to test any new U.N. attitudes about the use of force on the ground, particularly after UNPROFOR's cautious interpretations of its rules of engagement. This might result in more serious casualties than prior peacekeeping operations, at least at the outset. But certainly the cost would be many times smaller than that of imposing a peace. If the contributors of troops are not willing to accept even this risk, probably it would be better not to undertake the enterprise in the first place.
Rehabilitation
Two major tasks fall under this heading: repatriation and resettlement of refugees, and reconstruction of the basic infrastructure and economy of the country. The outlines of these tasks have begun to emerge.
Refugees
As of mid–1995, the total number of refugees and displaced persons produced by the wars in the former Yugoslavia was reported at over 4.6 million, or one out of every five of the prewar population of 22 million. Less than 1 million had found asylum abroad. The remaining 3.7 million were displaced within the former territory of the country, most of them in Bosnia.
The office of the United Nations High Commissioner for Refugees (UNHCR) is responsible for the care and protection of refugees worldwide, and the magnitude of its task in the former Yugoslavia dwarfs all others. Out of a total budget of over $1.3 billion in 1994, the UNHCR spent about $300 million in the former Yugoslavia. (Afghanistan, the next largest client, was budgeted at about a fifth of this figure.) By May 1994, 860 UNHCR personnel, or about 15 percent of its staff, were in the former Yugoslavia, where they constituted by far the largest nonmilitary presence. The agency established a network of more than 25 offices, a dozen warehouses, and a large trucking fleet, mostly in Bosnia and Croatia. This network is likely to grow further.
Because of the size and centrality of its mission, the secretary–general designated the UNHCR as the "lead agency" in the area. The UNHCR had never performed this role before, and the concept itself was poorly defined. Although it implied some obligation for coordinating the activities of the civilian U.N. agencies in the field, neither the authority nor the responsibility was ever fully spelled out. The UNHCR's writ did not extend even nominally to the other government and intergovernmental aid activities or to the many nongovernmental organizations involved in the assistance effort. It is widely agreed that, as a result, the overall effort was not fully coordinated at both the policy and the operational levels, dominated by ad hoc responses to current crises, and lacking in comprehensive strategic planning, even though relations with UNPROFOR apparently went relatively well.
Those charged with the postwar task of resettling and reintegrating the refugees will inherit both assets and liabilities from the wartime experience. On the one hand, there will be a large and experienced agency on the ground, with extensive knowledge of local conditions and needs, as well as a well–developed operating network of facilities. Moreover, the UNHCR will be able to build on its record of remarkable success in Cambodia, where it resettled over 360,000 refugees from the camps along the Thai border, and many more internally displaced persons. On the other hand, the legacy of poor overall planning and coordination for Bosnia has not been improved by the appointment of a High Representative whose task it is to coordinate all agencies and organizations, but whose budget has not reflected the enormous scope of the job. Neither the High Representative nor the United Nations were in a position to do planning, even if they had the capacity, since there was no designation of responsibility before the Dayton agreement.
The peculiarly vicious character of the Bosnian war already has vastly complicated the work of the UNHCR. One aspect of "ethnic cleansing" was the deliberate creation of refugees and displaced persons as an objective of military action. Since the failure of the Vance–Owen peace plan, moreover, it seemed likely that any negotiated settlement would divide Bosnia into ethnically defined territories more or less consistent with the situation on the ground at the end of the fighting. That is roughly what happened. Its effect was to convert a simple battle for all territory into a battle for territory in which the occupying force is ethnically dominant, again putting a premium on displacing minority groups.
The UNHCR has had to cope not only with the extraordinary size of the refugee population but with a special moral dilemma that emerged in what is ordinarily thought of as a straightforward humanitarian mission. The UNHCR often was faced with the agonizing choice of moving people from their homes—and thus, in practice, assisting in the ethnic cleansing—or leaving them to death, rape, or torture at the hands of the prevailing party. As time went on, the UNHCR became readier to move its charges to protect their lives and to accept the risk of the taint of complicity with ethnic cleansing.
The issue has been reprised in only slightly different form after the war. Since the settlement divides Bosnia into relatively self–governing territories, each with a dominant ethnic population, resettlement policy will have to deal with the ethnic pattern existing at the time of the cease–fire. Many of the displaced will not be able to return to their former homes, even if they are prepared to accept the risk of doing so. The civilian organizations, including the UNHCR, will find themselves uncomfortably implicated in the division of people along ethnic lines. (In Cambodia, although refugees were given the option of returning to their original homes, many found their lands or villages occupied by others when they arrived.) There seems to be no escape from this dilemma, but it is one that requires continuing thought and planning so that gross injustices can be kept to a minimum.
Reconstruction
In the past, U.N. peacekeeping missions have paid little attention to the problems of political and social reconstruction after national or internal disputes have been settled and the fighting has stopped. In many instances, even if peacekeepers continued to patrol cease–fire lines, civilians serving as election observers, human rights monitors, and humanitarian workers went home soon after peace was declared. Large–scale economic assistance never seems to arrive.
In recent cases, however, it has been increasingly understood that without some significant effort at rebuilding social and economic infrastructure, any peace is likely to be precarious, especially in internal and intercommunal situations where the bitterness and intensity of conflict is highest and neighbor is set against neighbor. Shortly after the peace agreement between the Palestine Liberation Organization and Israel was signed, in September 1993, the World Bank announced a comprehensive $1.2 billion economic program for the Gaza Strip and Jericho to support the agreement, which was to be funded by a consortium of 40 donor nations. By December, when widespread rioting broke out in the Gaza Strip, little or none of the promised assistance had been delivered.
Cambodia marked the first full–scale U.N. effort at postwar reconstruction. One of the major components of the plan prepared by the secretary–general and approved by the Security Council for the U.N. Transitional Authority in Cambodia (UNTAC) was "rehabilitation." It targeted food, security, health, housing, training and education, the transportation network, and the restoration of Cambodia's basic infrastructure. The budget of $595 million, as estimated by the World Bank, was to be covered by voluntary contributions. In fact, a ministerial conference in Tokyo in June 1992 generated $880 million in pledges.
Despite these promising beginnings and the initiation of a number of useful projects, the overall results in Cambodia have been disappointing. The appalling macroeconomic situation and the devastation of the 25–year war overwhelmed the U.N. effort. The pledged amounts were never collected in full, and much of the total was fulfilled by repackaging earlier commitments. Persisting hostility among Cambodian political factions frustrated decision–making and disrupted operations. There were the usual difficulties with U.N. coordination and management.
All these problems are likely to reappear in some guise in a Bosnian reconstruction effort. The physical and psychological devastation of the war is enormous. While the economic viability of an intact Bosnia had by no means been assured, that of the ministates that are likely to emerge is even more problematic. And they will share in full measure the woes of economic transition of their east European neighbors.
The distribution of the benefits also will raise problems, many of which were foreshadowed by the UNHCR's experience during the war. Its duty is to all civilian displaced persons, whatever community they come from, and many of the displaced persons in Bosnia are Serbs. The UNHCR has therefore been faced with the difficult problem of dividing supplies and assistance between the groups that had been chiefly victimized by the war and the compatriots of the chief victimizers. Moreover, distribution of humanitarian aid has depended on the cooperation of the military forces on the ground, which were in many instances Serbian. Frequently, cooperation was forthcoming only if the distribution formula was skewed in favor of their community. The United States and other Western states are not likely to be enthusiastic about contributing scarce economic resources to the reconstruction of the Serbian areas of Bosnia, since they regard the Bosnian Serbs as the "aggressors" and the principal perpetrators of ethnic cleansing and other violations of basic humanitarian norms.
On the other hand, unlike Cambodia, many Bosnians are educated and trained in the requirements of contemporary political and economic institutions. It should be easier to generate the economic resources for reconstruction than it was to assemble the military forces to intervene effectively in the fighting. But it remains to be seen whether significant economic assistance will be forthcoming. Foreign assistance of all kinds is declining, and national responses to the periodic calls of the secretary–general for funds to support humanitarian assistance have been falling off.
One counter to this decline in national contributions as well as to the bureaucratic deficiencies of the United Nations would be for the major international financial institutions to take a stronger role. Although in the cases of Cambodia and the West Bank, studies by the World Bank formed the basis for the secretary–general's call for funds, the appeal was addressed to individual national donors. Neither the bank nor the International Monetary Fund (IMF) committed major resources. The Balkans, however, present a somewhat different case. The former Yugoslavia was a major client of the international financial institutions. At the time of its disintegration, it was the sixth largest user of IMF funds. Croatia is currently a member of the bank and the IMF, and it appears that the resources of both institutions were deployed in support of the Croat–Muslim federation formed under the Washington accords of April 1994. Shortly thereafter, the bank approved a $128 million loan to Croatia, and the IMF was considering a $250 million standby credit. Bosnia is also a member of both institutions and thus will presumably be eligible for assistance from them. The European Union pledged 125 million ECUs plus funds for Sarajevo and Mostar immediately, and considerably more since then, as has the World Bank.
These more or less haphazard beginnings could be brought together in an integrated plan of targeted interventions to support Dayton's agreed settlement of the Bosnian war. One important precedent is the involvement of the World Bank and IMF in the democratic transition in South Africa. In July 1993, almost a year before the elections that brought Nelson Mandela to power, the World Bank announced its intention to lend South Africa $1 billion a year for five years once a democratically elected government was in place, and two months later, after the Transitional Council was organized, the IMF approved a drawing of $850 million for debt repayment. In the former Yugoslavia, the two global financial institutions could be joined by the European Bank for Reconstruction and Development (EBRD), which, unlike the others, is explicitly mandated by its charter to foster the development of multiparty democracy, pluralism, and market economics and has several projects in the Balkans. Croatia is a member; Bosnia is not. But that can be rectified with little difficulty once a peace accord is in place.
The concerted efforts of these institutions could be a powerful incentive to keep the peace. They could be directed not only toward the reconstruction and reintegration of Bosnia and its economic system but toward reestablishing economic connections with surrounding countries—both within and outside the former Yugoslavia—on which Bosnia's ultimate survival will depend. Assistance could be deployed in ways that encourage renewed contacts among the three main Bos–nian communities and discourage continued ethnic conflict. A postwar Bosnia could become a test case for a new policy of "strategic" lending and investment, which has been urged on the financial institutions from a number of quarters. 8
Binding the Wounds
Activities and programs mounted by formal international organizations will be a necessary part of any effort to rebuild Bosnia. But they are not the only, and perhaps not even the most important, part. Restoring the integument of that society will require more than the resettlement of refugees and money for reconstruction. Picking up the threads of normal life is something that the people concerned must do for themselves. But Bosnia was an advanced case of social breakdown: the ties of community were shattered; trust evaporated; there remains no real communication among different parties; positions were polarized; moderate elements were cowed and silenced. None of this will be ended by the signing of a settlement agreement. In the theory and practice of conflict resolution, such cases call for intermediation by outside parties.
Formal mediation efforts were part of the Bosnian effort, but success was painfully slow. Agreements and plans worked out by distinguished emissaries of the United Nations and the European Union, whether for local cease–fires or for a more comprehensive settlement, were repeatedly rejected or undermined by the parties. In part, this was because of the essential ambiguity as to the purposes of the international intervention. While the mediators placed primary emphasis on bringing the fighting to an end, the Security Council and other important actors condemned the Bosnian Serbs and sought to roll back Serbian military gains by diplomatic pressures. However morally correct the anti–Serbian policy may have been, its effect was to compromise the necessary neutrality of the mediators' position. Even so, meditative efforts on a smaller scale chalked up tangible accomplishments, especially in providing minimal levels of food and necessities to besieged communities. The U.S. mediation, following the first robust NATO air strikes to protect safe areas and the Croatian ground attack that drove the Serbs from the Krajina, finally brought about a fragile settlement.
Now that the fighting has stopped and the parties have entered into a more permanent agreement as to their future relations, intermediation will have a very different role. No matter what the agreed–upon map, it will not be possible to establish ethnically "pure" territories. There will inevitably be ethnic minorities in all the newly established regions. The settlement provides formal protections for these minority communities. The trick is to make these protections a reality in daily life. Issues will arise over access to jobs, housing, education, and public services. The new minorities are unlikely to have much confidence in formal legal procedures controlled by members of a majority who were only recently their deadly enemies, as became clear in the Serb flight from the suburbs of Sarajevo in early 1996. There will still be work for senior diplomats operating on the level of the national governments. But more important will be an array of informal processes at all levels, down to the village, the neighborhood, and even the schoolyard, in which all affected parties—majority and minority—can participate. It will be hard to get these processes going without the help of some form of third–party intermediation.
Successful intermediation at any level will require the restoration of a degree of openness and cooperation by all parties. This in turn will depend on building enough trust and confidence so that the parties will be prepared to disclose their interests and aspirations to the mediator. Where feelings and emotions are high and communications have broken down, as in Bosnia, an intermediary can help defuse the situation and get the parties talking again. If they will not talk directly to each other, each may talk to the mediator, knowing that the message will be conveyed to the other side. A long history of mutual suspicion and hostility may mean that every phrase is subject to distortion and may require a process of emotional translation before progress can be made. These are the classic functions of shuttle diplomacy. Ultimately, it may be possible to restore face–to–face dialogue to address the management of ongoing issues.
The office of High Commissioner on National Minorities (HCNM) of the Organization for Security and Cooperation in Europe (OSCE) has had considerable success with these techniques in potentially explosive situations in eastern Europe and the former Soviet Union. Beginning in the earliest stages of interethnic friction, the commissioner, Max van der Stoel, has been able to employ quiet, low–key tactics, first developing the facts of the situation and making contact with the relevant parties in an exploratory vein to develop their confidence in his impartiality and in the potential for intermediation. The HCNM worked to resolve ethnic tensions in the Baltic states (particularly Estonia), between Slovakia and Hungary, and in Romania, Macedonia, and Albania. In each case, Ambassador van der Stoel made several visits, not only to the capital, but to regions in which ethnic tensions were severe. He has had ready access to the highest levels of government and has made significant recommendations on legislation and policy dealing with ethnic minorities, many of which have been adopted. In most of these countries he successfully encouraged the establishment of official commissions on ethnic relations or ethnic roundtables at which representatives of the affected groups maintain a continuing dialogue with government officials. In the case of Slovakia and Hungary, he secured the assent of both sides to the creation of an unofficial expert group that visits both countries at stated intervals to advise on the implementation of his recommendations and on further steps to be taken. A key to the success of these interventions is that the high commissioner did not focus on the substantive elements of the issues in dispute, much less on assigning blame. Instead his emphasis was on devising and activating processes by which the parties could work out their own solutions.
The Dayton agreement permits, but does not require, the establishment of an entity with a similar mandate for postsettlement Bosnia. Or the HCNM's charge could be extended to cover that situation. Whether this is done or not, a major share of the required intermediation, especially at local levels, will be accomplished by nongovernmental organizations and people who happen to be in the area on a variety of missions connected with reconstruction. Despite the notion that mediation is an art that cannot be taught, there is now a body of a theory and practical experience that provides a basis for training people who are likely to find themselves in such situations. An important function of any postsettlement international effort will be to ensure that official personnel are given such training and that it is available to others, including members of the local population, who will be working in the area.
However, security guarantees of some kind are also likely to be needed. 9 The international community will not accept a permanent peacekeeping operation—a repetition of Cyprus is unthinkable, given the financial crisis of the United Nations and the costs that the former Yugoslavia has already imposed. Nor will continuing problems be settled by training and equipping the Bosnian Muslims to strengthen the deterrent effect of their military forces. A standard criticism of international intervention—Cambodia, for example—is that the international community withdraws too quickly for settlement to adhere. Planning for some form of security guarantee, although unpopular domestically, will require ongoing effort.
War Crimes and War Criminals
The war in Bosnia produced the most heinous crimes against the laws of war, human rights, and human dignity since World War II, at least in Europe. Television brought the horror home to people everywhere. Although it is said that atrocities were committed by all sides, and although reports of Croatian behavior have been very disturbing too, U.N. and Western observers uniformly report that the transgressions of the Bosnian Serbs far outweigh those of others. In view of the developments in international human rights law over the past four decades, demands that the perpetrators be punished were inevitable.
The United Nations already has invested substantial political capital in the effort to assure that those responsible for crimes against humanity are brought to justice. Security Council resolutions 808 and 827 established the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. Resolution 808, adopted under chapter VII of the U.N. Charter, "decided that all states shall take all measures necessary under their domestic law to implement the provisions of the present resolution and the statute, including the obligation of states to comply with requests for assistance or orders issued by a trial chamber [for the arrest, detention, or surrender of persons accused]." 10 The Statute of the Tribunal, resolution 827, adopted at the same time, stipulates that the seat of the tribunal is at The Hague and that it will consist of six trial and five appellate judges, a registrar, and a prosecutorial arm. Its budget for the first four years is more than $30 million. Legal experts and constitutional lawyers have drafted rules of fair procedure for what is a new and difficult forum. The chief prosecutor, appointed after some delay, has been Judge Richard Goldstone of South Africa, a man of impeccable professional and moral credentials who made an energentic start.
Punishing war criminals has a strong moral and political appeal. Unlike military intervention, it enjoys almost universal approval. Some, perhaps cynically, have suggested that it was the only way to "do something" about the Bosnian tragedy on which U.S. and European leaders could agree. But it is unclear, as a practical matter, how the war crimes enterprise will relate to peacekeeping in postwar Bosnia. The powers of the peacekeeping force, plus the activities of human rights monitors attached to it, may well be sufficient to prevent human rights abuses in the future. But what about past war crimes?
The peace settlement permits, but does not require the peacekeeping force to arrest and surrender suspects pursuant to the statute of the new tribunal. Radovan Karadzic, the political leader of the Bosnian Serbs, and General Ratko Mladic, their military commander, have already been indicted for war crimes. Croatians in similar positions, and even some Muslim leaders, also may be vulnerable to criminal proceedings. In the 1985 agreement in Uruguay between the military junta and the opposition for a return to civilian rule after more than a decade of dictatorship marked by horrific human rights violations, the question of amnesty or punishment was purposely not considered because touching on this subject may have meant that possibly no agreement could have been reached. Although the Dayton agreement is not wholly silent on the issue of war crimes, its provisions are highly ambiguous. In theory, even in the absence of an agreement between the parties, the Security Council could direct the peacekeeping force to execute the orders of the tribunal for the detention and surrender of suspects, but such a resolution might face opposition from the Russians, given their historical and political ties to the Serbs, and from China, which is congenitally opposed to Security Council coercion.
The secretary–general or the NATO force commander, under the terms of the Security Council resolution just quoted, might be empowered to order such action on his own initiative. Yet even if the legal basis for such an order were unassailable, there are strong considerations arguing against it. To enter the territory of Serbian Bosnia or Croatia (which is also within the tribunal's jurisdiction) to execute such an order might require a force of a size and armament comparable to that which would have been needed to impose a peace. It is unlikely, not to say unseemly, that states unwilling to commit the troops to prevent the outrages from occurring in the first place would do so to punish the perpetrators after the event. In any case, the effort would complicate immeasurably the already daunting mission of the force guaranteeing a peace agreement. The attempt to arrest General Farah Aidid after the Security Council declared him an outlaw, it will be recalled, marked the beginning of the disintegration of the U.S. and the U.N. operation in Somalia. Moreover, any such effort in Bosnia would undermine the conditions for Russian participation in the peacekeeping force, without which the chances for long–term success would be much diminished.
It might be thought that, at a minimum, the peacekeeping force should be able to act as custodian for suspects arrested by each of the Bosnian authorities in its own territory and to surrender them on the call of the tribunal. But this too raises problems. Serbs, Croats, and Muslims are not likely to arrest very many of their own compatriots, although a few may be turned over as tokens of "cooperation." The arrangement would thus set majority communities against minorities in each territory, creating a climate for continuing violence. Moreover, it would create incentives for irregular forces to cross borders to kidnap suspects for return to their own territories where the authorities could turn them over to the U.N. force. This is hardly a prescription for a cease–fire, much less a lasting peace.
The U.N. War Crimes Tribunal faces practical difficulties apart from the problems it poses for any peacekeeping operation. Although the legal basis for the Security Council resolution has been certified by the U.N. legal office, it is not unassailable. Arrests made under it will no doubt be challenged in national courts, with results that are by no means certain. For example, an order of the international tribunal, based on the Security Council resolution, may not be sufficient for an arrest to withstand a habeas corpus challenge in a U.S. court. As with extradition, a specific treaty or an act of Congress may be necessary. More important, it cannot be assumed that all states called upon to take action under the resolution will do so. It is not only Serbia that will hold back, although many of the suspects are likely to be found there. There is talk of economic or even military sanctions against states that refuse to cooperate with the tribunal, but again, Serbia's long–standing relationship with Russia might lead Moscow to raise obstacles in the Security Council. Moreover, the record of economic sanctions in compelling state behavior, either in the former Yugoslavia or elsewhere, is not impressive.
On the other hand, it is simply not possible for the United Nations, or the world in general, to wash its hands of the abominations that took place in Bosnia. Apart from the abstract requirements of law, the demands of the victims for justice and reparation cannot be ignored. The tribunal is in place, and the prosecutor's office is proceeding apace with aggressive and painstaking investigations. The first indictment was lodged in absentia in November 1994 against a Bosnian Serb camp commander, and German officials were asked to detain another, who had originally been arrested to answer for his war crimes under German law. A trial was begun in Germany against an indicted defendant arrested there. The indictments of Karadzic and Mladic have already been mentioned. Undoubtedly a number of other indictments will be brought and additional trials will take place. But even under the most favorable circumstances, given the time and resources available, it will not be possible to try more than a very small proportion of those who are thought to have committed such crimes.
This rather limited outlook for the War Crimes Tribunal is not necessarily all bad. It is not prudence alone that counsels a more cautious approach to U.N. policy on war crimes. The historical and moral position for retribution is not as unassailable as it may at first appear. The Nuremberg trials often are cited as precedent for the current measures, but they remain the only instance in which war crimes were punished by an international tribunal. The distinguishing feature of that episode was that World War II ended in unconditional surrender. The victors did not have to gain the assent of the vanquished to the postwar regime. Agreed settlements of civil wars, by contrast, and other transfers of power between authoritarian and democratic regimes generally have forgone punishment for crimes committed on either side. Neither Pol Pot or Saddam Hussein, Idi Amin or Augusto Pinochet, or the Argentine generals (save briefly for a few of the very highest), or the Sandinistas or the Contras in Nicaragua, or the leaders of the FMLN or ARENA in El Salvador have had to face criminal punishment. In Uruguay, where it is estimated that one in five persons was arrested and tortured by the military junta, a mobilized public gathered the needed 500,000 signatures (in a country of three million) for a referendum to overturn the amnesty law that was passed by the newly elected democratic Congress under pressure from the former military rulers. But in the referendum, 53 percent voted to sustain the law.
In other such situations, a way has been found between impracticable punishment and unacceptable amnesia—by no means a perfect way—but one that permits the parties to get on with their lives. The answer the Latin Americans seem to have found is exposure to the truth. Truth–telling by official investigations, in the naming of names, in identifying criminal acts and victims puts the perpetrators on public record. In Argentina and Chile, following the downfall of the dictators, such reports, both entitled Nunca Mas (Never Again), were published by the new democratic governments. The Argentine report led to the trial and conviction of a few members of the military government, already discredited by the Falklands/Malvinas disaster. In late 1986, a law imposed a 60–day limit on initiating prosecutions for human rights offenses committed during the period of the junta, and in June 1987, legislation effectively voided the prosecutions of most of the lower–ranking officers, who had been the actual torturers. Although "everyone knew" what had happened without having to be told by the investigating commissions, the official acknowledgment of the acts and of the identities of the perpetrators seems to have had a cathartic effect.
In El Salvador, the peace accord between the FMLN and the government brokered by the United Nations provided for an investigation by the three–person Commission of Truth, appointed by Secretary–General Boutros Boutros–Ghali. After an investigation of 18 months, the commission released a detailed 270–page report charging numerous high–ranking military officers with murder and other gross abuses of human rights. Some rebel leaders also were named in the report, but on a lesser scale. Thomas Buergenthal, one of the members of the commission, said, "I don't think you can ever have reconciliation and a democratic state in El Salvador in which the rule of law prevails unless there is a statement of what happened." Buergenthal also argued that the most serious offenders should be prohibited from holding public office for at least ten years. "The way to end impunity is to make these people pay a price and they must be seen to be paying a price." In the event, the rightist ARENA–controlled National Assembly passed an amnesty law over the objections of the left and center oppositions, despite which the ruling party won a comfortable victory at the first elections held after the peace agreement. Thereafter, although there were no criminal prosecutions, President Alfredo Cristiani dismissed at least 15 of the top army officers named in the report. The Dayton agreement specifically prohibits Radovan Karadzic and General Ratko Mladic, the civilian and military leaders of the Bosnian Serbs, from holding office in the new government, but beyond that it is silent. In South Africa, President Nelson Mandela initially favored, but has been unable to sustain, the total amnesty approach. Instead he is proposing a program of official investigation to provide a public record of the factual details of the criminal activities of the secret police and other government officials in enforcing apartheid.
The "truth commission" approach, with or without the sanction of the settlement agreement, should be considered for Bosnia. It would expose, if not punish, the worst offenders and lay a basis for future reparations to the victims. Indeed, the War Crimes Tribunal, by bringing indictments even if the defendants cannot be brought to trial, may be performing these functions. Moreover, under its rules of procedure, the tribunal is empowered to hold public hearings to present the evidence when it cannot bring an accused to trial. Identifying the perpetrators and holding them up to public shame may not be as satisfying an answer to our justifiable feelings of moral outrage as the quest for punishment. But it may be the only way to permit the healing process to go forward. Prosecutions by national authorities may come later. After the conviction, 50 years after the event, of Paul Touvier for the execution of seven Jews by the Vichy militia in Lyon, Michel Zaoui, one of the prosecutors, concluded: "Fifty years were necessary to break the silence, to emerge from the shame, to look Vichy in the face—to speak without hate and without fear. Only with the third generation can justice be done, in all serenity." 11
Even this preliminary sketch demonstrates that the problems facing a postwar Bosnia in every dimension—military, economic, and humanitarian—will be enormously complex, difficult, and demanding. The only visible preparation for facing these problems early on was in the war crimes area, and the proposed plan has the limitations just discussed, even though its ultimate impact may be closer to a truth commission than to the Nuremburg trials. The overwhelming need for an immediate, serious, and comprehensive planning effort was realized rather late, and then it focused primarily on military tasks. Only time will tell whether it was adequate to the task. It is perhaps understandable that the nations of the world were unable to mount a military operation to end the horrors of the Bosnian war. It will be unforgivable if they fail to summon the material, intellectual, and moral resources to deal with its aftermath.
Endnotes
Note 1: The text of the General Framework Agreement for Peace in Bosnia and Herzegovina may be found on the World Wide Web under the heading http://dosfan.lib.uic.edu/www/current/bosnia/daytable.html. Its many annexes can be accessed through the same site. Back.
Note 2: U.N. S.C. Res. 758, June 8, 1992. Back.
Note 3: U.N. S.C. Res. 770, August 13, 1992. Back.
Note 4: U.N. S.C. Res. 776, September 14, 1992. Back.
Note 5: U.N. S.C. Res. 781, October 9, 1992; S.C. Res. 816, March 31, 1993; S.C. Res. 824, May 6, 1993; S.C. Res. 836, June 4, 1993. Back.
Note 6: Note by the Secretary–General Concerning Certain Aspects of the Function and Operation of the United Nations Peacekeeping Force in Cyprus, April 11, 1964, 19 U.N. SCOR, Supp. April–June 1964 at 12, U.N. Doc. S/5653 (1964). Back.
Note 7: Report of the Secretary–General to the Security Council on the United Nations Operation in Cyprus, Sept. 10, 1964, 19 U.N. SCOR, July–Sept. 1964 at 280, U.N. Doc. S/5950 (1964). The force was already authorized to interpose "where specific arrangements accepted by both communities have been, or in the opinion of the commander on the spot are about to be, violated, thus risking a recurrence of the fighting or endangering law and order" (Note by the Secretary–General, n. 1). Back.
Note 8: See Wolfgang H. Reinicke, "Can International Financial Institutions Prevent Internal Violence? The Sources of Ethnic Conflict in Transitional Societies," in Abram Chayes and Antonia H. Chayes, eds., Preventing Conflict in the Post–Communist World: Mobilizing International and Regional Organizations (Washington, DC: Brookings Institution, 1995). Back.
Note 9: Barbara Walters argues in her study of 41 civil wars over 50 years that civil wars have not been resolved by even the most skillful mediation. Security guarantees by third parties are required in order to provide the reassurance necessary for disarmament or integration of the military. Unlike transnational conflict, parties cannot retreat behind borders. Bosnia represents a hybrid example. "The Resolution of Civil Wars: Why Negotiations Fail," unpublished manuscript, Columbia University, Institute of War and Peace, 1995. Back.
Note 10: Article 25 of the Charter provides that members "agree to accept and carry out the decisions of the Security Council." Back.
Note 11: Sarah Chayes, "French Justice Struggles with War Crime Issues," Christian Science Monitor, April 27, 1994. Back.
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