Human Rights Quarterly 18.2 (1996) 259-285
Are peace and justice irreconcilable or inextricable? The underlying premise of both is that principle should prevail over power. Both seek to put an end to inhumanity and war. Yet, justice concerns itself with rectifying the horrors of the past, while peace looks at the promises of the future. In the history of modern diplomacy, it has been recognized that postconflict peace-building requires "a sense of confidence and well-being among people." In practice, however, the punishment of past human rights abuses has not been a high priority. As a general rule, so-called "realpolitik" considerations have prevailed and the perpetrators of massive atrocities have enjoyed impunity. In particular, political and military leaders who planned and instigated systematic abuses for their own political ends, far from being held accountable, have been granted international legitimacy solely because of their power to sabotage the process of conflict resolution.
A notable exception to this rule is the unprecedented establishment of the International Criminal Tribunal for the Former Yugoslavia (Yugoslav Tribunal or Tribunal) by the UN Security Council. This tribunal, established during an on-going armed conflict, is unique in the annals of international relations. While the case of the former Yugoslavia is yet another manifestation of the perennial dilemma between peace and justice, the Tribunal represents an institutionalization of the demand for justice which, perhaps inadvertently, has become an integral part of the peace process.
Some three years ago, an article appeared in this journal pleading for the punishment of the worst atrocities to have been committed in Europe since the Second World War, claiming that the challenge which it posed was "a critical juncture for the New World Order." The proposition that an international tribunal should be established for this purpose was viewed by some as naïve and idealistic, a mere cri de coeur. Yet, at the time of going to press in February 1993, the Security Council had adopted Resolution 808, expressing its intent to establish such a tribunal, and, by the time of publication in May, the Security Council had adopted the Statute of the Yugoslav Tribunal under Resolution 827. Furthermore, the Yugoslav Tribunal created a precedent for the establishment of a second International Criminal Tribunal for Rwanda in response to the horrific genocide of April 1994, which claimed between 500,000 and 1 million lives in just four months.
The Yugoslav Tribunal was established under Chapter VII of the UN Charter as a measure for the restoration of international peace and security and not for the enforcement of humanitarian law as such. While some viewed this as a great moral victory for human rights, the claim by member states of the Security Council that peace and justice are indivisible was met with skepticism by numerous commentators who viewed the Tribunal as a subterfuge for the failure of the international community to effectively confront the horrors of "ethnic cleansing." These commentators predicted that the Tribunal would never become effective and that the "inherent contradiction" between peace and justice would eventually result in an amnesty for indicted political and military leaders. The prognosis of the skeptics was wrong, and the Dayton Peace Agreement, signed by the parties to the conflict in December 1995, included the Tribunal as an "essential aspect" of peace implementation. Yet, it remains to be seen whether this rhetoric will become reality.
Having traversed the perilous phase of its inception, the Yugoslav Tribunal has now arrived at its hour of truth. The will of the international community to make the Tribunal an effective instrument for postconflict peace-building will be tested in the coming months as the Dayton Peace Agreement is implemented. If, having established the Tribunal, the world fails to punish those who have committed genocide on such a vast scale, the credibility of international law in the post Cold War era will be irreparably damaged, and the prospect of a lasting peace in the volatile Balkan region will be jeopardized. The punishment of war crimes in the former Yugoslavia is indeed "a critical juncture for the New World Order" which calls for historic vision, political courage, and moral leadership.