¹ There is considerable information available on violations of international humanitarian law in the former Yugoslavia. Over 20 states have provided the United Nations with reports containing substantiated information on violations of international humanitarian law in the former Yugoslavia; the United States submitted eight such reports before July 1, 1993. Nongovernmental organizations have also produced useful reports. See, e.g., Helsinki Watch, War Crimes in Bosnia-Herzegovina (1992).

² See Theodor Meron, The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122.

³ See SC Res. 827 (May 25, 1993), reprinted in 32 ILM 1203 (1993) (describing violations of international humanitarian law and determining that “this situation” constitutes a threat to international peace and security); SC Res. 808 (Feb. 22, 1993) (same).

⁴ See SC Res. 713 (Sept. 25, 1991), reprinted in 31 ILM 1431 (1992) (expressing concern that continuation of the conflict “constitutes a threat to international peace and security”); SC Res. 721 (Nov. 27, 1991), reprinted in 31 ILM at 1433 (noting that the “continuation and aggravation” of the conflict constitute a threat to international peace and security).

⁵ See Misha Glenny, The Fall of Yugoslavia 123 (1992). The violence in the region’s history is evident in the Carnegie Endowment commission’s report on the century’s first two Balkan Wars. See Carnegie Endowment for International Peace, The Other Balkan Wars 208 (reprinted 1993) (1914) (“there is no clause in international law applicable to land war and to the treatment of the wounded, which was not violated, to a greater or less extent, by all the belligerents”). See also Robert D. Kaplan, Balkan Ghosts: A Journey Through History (1993); Andrew Bell-Fialkoff, A Brief History of Ethnic Cleansing, Foreign Aff., Summer 1993, at 110, 116–21.

⁶ SC Res. 713, supra note 4, established an arms embargo, which was reinforced by SC Res. 727 (Jan. 8, 1992), reprinted in 31 ILM at 1437. Resolution 713 expressed the Council’s support for efforts of the European Community and the Conference on Security and Co-operation in Europe and invited the Secretary-General to offer assistance in peace negotiations. SC Res. 752 (May 15 1992), reprinted in 31 ILM at 1451, further endorsed peace negotiations. SC Res. 724 (Dec. 15, 1991). SC Res. 758 (June 8, 1992), SC Res. 760 (June 18, 1992), and SC Res. 762 (June 30, 1992), reprinted in 31 ILM at 1435, 1459, 1461, 1463, respectively, endorsed plans for the delivery of humanitarian assistance. SC Res. 724, supra, SC Res. 740 (Feb. 7, 1992), and SC Res. 743 (Feb. 21, 1992), reprinted in 31 ILM at 1440, 1447, concerned the establishment of a peacekeeping force, the United Nations Protection Force (UNPROFOR). SC Res. 757 (May 30, 1992), reprinted in 31 ILM at 1453, established an economic embargo, which was tightened by SC Res. 820 (Apr. 17, 1993).

⁷ See SC Res. 764 (July 13, 1992), reprinted in 31 ILM at 1465 (emphasis added).

⁸ See SC Res. 752, supra note 6 (calling for the cessation of forcible expulsion); SC Res. 757, supra note 6 (reaffirming the need “for effective protection of human rights and fundamental freedoms, including those of minorities”).

⁹ See, e.g., SC Res. 666 (Sept. 13, 1990), reprinted in 29 ILM 1330 (1990) (“expect[ing] Iraq to comply with its obligations” under previous Council resolutions concerning the safety of third-country nationals); SC Res. 674 (Oct. 29, 1990), reprinted in 29 ILM at 1561 (demanding that “the Iraqi authorities and occupying forces” comply with the fourth Geneva Convention, infra note 20, and other relevant international law).

¹⁰ See SC Res. 771 (Aug. 12, 1992), reprinted in 31 ILM at 1470. The requirement that information provided be “substantiated” appeared in Resolution 674, supra note 9, presumably to discourage the submission of rumors and secondhand reports. In formulating its reports to the United Nations, the United States regarded information as “substantiated” when it was corroborated (or provided in sufficient detail to permit corroboration) or was provided by eyewitnesses.

¹¹ See SC Res. 780 (Oct. 6, 1992). The Secretary-General reported on the establishment of the commission in UN Doc. S/24657 (1992). The commissioners are Professor Frits Kalshoven, Chair; Professor M. Cherif Bassiouni; Commander William J. Fenrick; Judge Keba M’Baye; and Professor Torkel Opsahl. Professor Opsahl unfortunately died while this article was in the press.

¹² See United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (1948) (official history and documents).

¹³ See Paul Lewis, U.N. Backs Inquiry in the Balkans to Discover Possible War Crimes, N.Y. Times, Oct. 7, 1992, at Al, A6.

¹⁴ See Roy A. Guttman, War Crime Unit Hasn’t A Clue, New York Newsday, Mar. 4, 1993, at 8; Carla Anne Robbins, World Again Confronts Moral Issues Involved in War-Crimes Trials, Wall St. J., July 13, 1993, at A8 (describing commission).

¹⁵ See UN Doc. S/25274 (1993) (interim report and work plan of commission) [hereinafter Interim Report]. See also Elaine Sciolino, U.S. Won’t Send Troops to Seek Croats’ Bodies, N.Y. Times, June 24, 1993, at A12; Chuck Sudetic, U.N. Investigating Croats’ Grave Site, N.Y. Times, Nov. 29, 1992, §1, at 1, 16.

¹⁶ See SC Res. 808, supra note 3.

¹⁷ See UN Doc. S/25704 (1993), reprinted in 32 ILM at 1159 [hereinafter Secretary-General’s Report].

¹⁸ See SC Res. 827, supra note 3.

¹⁹ See UN Doc. S/PV.3217, at 36–37 (1993) (verbatim transcript of Security Council deliberations on SC Res. 827) (remarks of Brazilian representative) [hereinafter Transcript]; id. at 33 (China); Letter from the Permanent Representative of the Russian Federation to the Secretary-General (Apr. 5, 1993), UN Doc. S/25537, at 15 (1993); Letter from the chargé d’affaires a.i. of the Permanent Mission of Yugoslavia to the Secretary-General (May 19, 1993), UN Doc. S/25801, at 3 (1993); CSCE Rapporteurs, Proposal for an International War Crimes Tribunal for the Former Yugoslavia 67 (1993), reprinted in UN Doc. S/25307 (1993).

²⁰ See, e.g., Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 130, 6 UST 3316, 75 UNTS 135 (it is a grave breach to deprive prisoners of “rights of fair and regular trial”) [hereinafter Geneva Convention No. III]; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 147, 6 UST 3516, 75 UNTS 287 [hereinafter Geneva Convention No. IV] (same with regard to other protected persons); common Article 3 to the Geneva Conventions (same, with regard to armed conflicts not of an international nature).

²¹ See 87 ASIL Proc. (1993) (forthcoming) (remarks of Ambassador Corell).

²² See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Charter of the International Military Tribunal, Aug. 8, 1945, Art. 3, 82 UNTS 280, reprinted in 39 AJIL 257 (1945) [hereinafter Nuremberg Charter].

²³ See, e.g., Letter of the Permanent Mission of Yugoslavia, supra note 19, at 2.

²⁴ The Iraqi Government’s repression of its population has been used in justifying the establishment of no-fly zones in southern and northern Iraq. See SC Res. 688 (Apr. 5, 1991), reprinted in 30 ILM at 858 (northern Iraq); H.R. Rep. No. 88, 103d Cong., 2d Sess. (1993) (report of President on use of force against Iraq) (no-fly zones in southern and northern Iraq monitor Iraqi compliance with SC Res. 687 and 688, and have reduced level of aggression against civilian populations). The Security Council has condemned Iraqi atrocities, see supra note 9, and the U.S. Government has recently publicized the responsibility of individual Iraqis for atrocities in reports provided to the Council. See UN Doc. S/25441 (1993).

The United States has announced its support for a UN commission to investigate Iraqi violations of international humanitarian law. With regard to Somalia, the Security Council has condemned attacks on UN forces as threats to international peace and security. The United Nations has condemned, publicized and investigated these Somali actions, with a view to detaining those responsible, perhaps for prosecution in a national or international forum. See SC Res. 837 (June 6, 1993) (noting authority of Secretary-General to arrange for detention and prosecution of persons responsible for cease-fire violations); SC Res. 814 (Mar. 26, 1993) (reaffirming that persons responsible for violations of international humanitarian law will be held individually responsible).

²⁵ See John R. Crook, The United Nations Compensation Commission—A New Structure to Enforce State Responsibility, 87 AJIL 144 (1993) (describing Commission on Iraq).

²⁶ Secretary-General’s Report, supra note 17, at 9.

²⁷ See Nuremberg Charter, supra note 22, Art. 6(a); Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, Art. 5(a), TIAS No. 1589, 4 Bevans 20 [hereinafter Tokyo Charter].

²⁸ Geneva Convention No. IV, supra note 20, Art. 27, provides that women shall be “especially protected … against rape.” See also Geneva Convention No. III, supra note 20, Arts. 13–14 (prisoners of war). Violations of Article 27 of Geneva Convention No. IV are incorporated into the grave breach provisions, which are subject to a special regime. See Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 598 (Oscar M. Uhler & Henri Coursier eds., 1958) (describing grave breach of inhuman treatment with reference to Article 27, quoted above); International Committee of the Red Cross, Aide-Mémoire (1992) (rape is grave breach). See generally Theodor Meron, Rape as a Crime under International Humanitarian Law, 87 AJIL 424 (1993).

²⁹ See, e.g., Geneva Convention No. IV, supra note 20, Art. 146.

³⁰ See Secretary-General’s Report, supra note 17, at 10–11.

³¹ See Transcript, supra note 19, at 11 (France), 15 (U.S.), 19 (UK).

³² See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts [hereinafter Protocol I], and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts [hereinafter Protocol II], opened for signature Dec. 12, 1977, 1125 UNTS 3, 606, reprinted in 16 ILM 1391, 1442 (1977). A violation of Article 23 would not itself constitute a grave breach, although it would be a war crime. Interference with humanitarian assistance may constitute a violation of customary international law. See Charles A. Allen, Civilian Starvation and Relief During Armed Conflict: The Modern Humanitarian Law, 19 Ga. J. Int’l & Comp. L. 1 (1989).

For the Regulations attached to the Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, see 36 Stat. 2277, 1 Bevans 631.

³³ See, e.g., Agreement reached under ICRC Auspices on 28 and 29 July 1992 (Croatia and Serbia); Agreement of 22 May 1992 (Croatia, Bosnia-Hercegovina, and Serbia); Memorandum of Understanding of 27 November 1991 (Croatia, Serbia, and Federal Republic of Yugoslavia); Addendum to Memorandum of Understanding of 27 November 1991 (Croatia and Federal Republic of Yugoslavia). Accord Interim Report, supra note 15, at 14 (law of international armed conflict should be applied to the “entirety of the armed conflicts in the territory of the former Yugoslavia”).

³⁴ The issue is controversial. See Hans-Peter Gasser, International Non-International Armed Conflicts: Case Studies of Afghanistan, Kampuchea, and Lebanon, 31 Am. U. L. Rev. 911 (1982).

³⁵ See Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, Art. II, 78 UNTS 277, reprinted in 45 AJIL 7 (Supp. 1951).

³⁶ The prerequisites for a finding of genocide may exist in Bosnia-Hercegovina. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), 1993 ICJ Rep. 3 (Order of Apr. 8).

³⁷ See Control Council for Germany, Official Gazette, Jan. 31, 1946, at 50, reprinted in Naval War College, Documents on Prisoners of War 304 (International Law Studies vol. 60, Howard S. Levie ed., 1979).

³⁸ See Transcript, supra note 19, at 16 (U.S.) (acts in Article 5 must be “committed contrary to law”).

³⁹ See 15 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 135 (1949) (summarizing holdings of tribunals) [hereinafter Law Reports].

⁴⁰ See United States v. Altstoetter, 3 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, at 954 (1951) [hereinafter Trials].

⁴¹ See Interim Report, supra note 15, at 11 (“In a number of cases, the alleged facts seem to be attributable to groups operating in a disorganized and undisciplined manner under very limited command and control.”).

⁴² See Nuremberg Charter, supra note 22, Art. 6(c); Tokyo Charter, supra note 27, Art. V(c).

⁴³ Compare United States v. Flick, 6 Trials, supra note 40, at 1187, 1213 (1952) (connection required because Control Council Law No. 10 incorporates Nuremberg Charter) and United States v. von Weizsaecker, 14 id. at 308, 553 (1952) (same) with Altstoetter, 3 id. at 979 (Control Council Law No. 10 eliminates requirement) and United States v. von Ohlendorf, 4 id. at 411, 499 (1950) (same).

⁴⁴ See Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2590–91 (1991) (describing UN deliberations on crimes against humanity since World War II). The question of crimes against humanity under customary international law, however, may be largely irrelevant to interpreting the Yugoslav statute. The Nuremberg Tribunal, as well as the tribunals interpreting Control Council Law No. 10, treated the scope of crimes against humanity as a matter of conventional (not customary) law, resolving disputes through the construction of their Charters. Similarly, the tribunal for the former Yugoslavia could interpret its statute without seeking to resolve customary international law on the question.

⁴⁵ See Observations of the Government of the Kingdom of the Netherlands on the Establishment of an International Ad Hoc Tribunal for the Prosecution and Punishment of War Crimes in the Former Yugoslavia 3 (Mar. 26, 1993) (on file with author) (crimes against humanity are “committed as part of the deliberate, systematic persecution of a particular group of people and/or are designed systematically to deprive that group of people of their rights” with government tolerance or assistance); Letter from the Permanent Representative of Italy to the Secretary-General (Feb. 16, 1993), UN Doc. S/25300, at 3 (1993) (defining “crimes against humanity” without reference to armed conflict); Comments of the Government of New Zealand 2 (1993) (on file with author) (same); Letter from the Permanent Representative of Canada to the Secretary-General (Apr. 13, 1993), UN Doc. S/25594, at 3 (1993); Letter from the Permanent Representative of the United States of America to the Secretary-General (Apr. 5, 1993), UN Doc. S/25575, at 6 (1993) (referring to acts “that are part of a campaign or attack against any civilian population in the former Yugoslavia on national, racial, ethnic or religious grounds” without reference to armed conflict). But see Letter from the Permanent Representative of the Russian Federation, supra note 19, at 5 (defining crimes against humanity by reference to customary international law “as reflected, in particular, in the Charter of the” Nuremberg Tribunal).

⁴⁶ Secretary-General’s Report, supra note 17, at 13 (“Crimes against humanity … are prohibited regardless of whether they are committed in armed conflict, international or internal in character”).

⁴⁷ See Transcript, supra note 19, at 16 (statement of U.S.), 19 (statement of UK).

⁴⁸ See Opinion and Judgment of the International Military Tribunal at Nuremberg 84 (1947) (although prewar crimes must be “in execution of, or in connection with,” after start of war all “inhumane acts” constituted crimes against humanity). See also Egon Schwelb, Crimes Against Humanity, 23 Brit. Y.B. Int’l L. 178, 205–06 (1946) (under Nuremberg Charter, convictions for crimes against humanity before war rested on substantive connection to other crimes; for acts during war, connection not required).

⁴⁹ See note 48 supra.

⁵⁰ Secretary-General’s Report, supra note 17, at 14.

⁵¹ See also Nuremberg Charter, supra note 22, Art. 7.

⁵² See Lawrence S. Eagleburger, The Need to Respond to War Crimes in the Former Yugoslavia, 3 U.S. Dep’t of State, Dispatch 923 (1992) (Serbian President Slobodan Milošević, Bosnian Serb leader Radovan Karadžić, and Bosnian Serb military leader Ratko Mladić “must eventually explain whether and how they sought to ensure, as they must under international law, that their forces complied with international law”); Elaine Sciolino, U.S. Names Figures to be Prosecuted Over War Crimes, N.Y. Times, Dec. 17, 1992, at A1, A22.

⁵³ Secretary-General’s Report, supra note 17, at 13. See also Transcript, supra note 19, at 15 (statement of U.S.) (individual liability arises from “the failure of a superior—whether political or military—to take reasonable steps to prevent or punish such crimes by persons under his or her authority”).

⁵⁴ See Protocol I, supra note 32, Art. 86. Commanders are responsible if they “knew, or had information which should have enabled them to conclude in the circumstances at the time, that [a subordinate] was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.” Article 87 provides that military commanders are required to “suppress and report” breaches of the Conventions and the Protocol.

⁵⁵ Command responsibility unquestionably reaches both political and military commanders. Defendants at Nuremberg and Tokyo occupied positions of political authority. See, e.g., The Hirota Case, 3 Judgments of the International Military Tribunal for the Far East 1, 160–61 (1948) (Japanese Prime Minister guilty of war crimes committed in Nanking because he failed to take steps to stop atrocities).

⁵⁶ See United States v. von Leeb (“The High Command Case”), 11 Trials, supra note 40, at 462, 548–49 (1950) (summarizing sources of information available to determine knowledge of commanders); United States v. List (“The Hostage Case”), id. at 1230, 1259–60 (inferring notice from regularity of reporting available to defendants).

⁵⁷ See, e.g., United States v. Yamashita (1945), 4 Law Reports, supra note 39, at 1, 34 (1945), aff’d, 327 U.S. 1 (1946) (crimes alleged “were so extensive and wide-spread, both as to time and area, that they must have been wilfully permitted by the Accused, or secretly ordered by the Accused”).

⁵⁸ See William H. Parks, Command Responsibility for War Crimes, Mil. L. Rev., Fall 1973, at 1, 84 (summarizing post–World War II case law). See, e.g., List, supra note 56, at 1271 (“If time permits [a commander] is required to rescind such illegal orders [issued by others], otherwise he is required to take steps to prevent a recurrence of their issue.”).

⁵⁹ The case of General von Leeb illustrates steps defendants can take to avoid culpability. Von Leeb was acquitted on charges related to the so-called Commissar Decree because he could demonstrate that he had protested the order and informed his troops that he would discipline any member of his command who violated the laws of war. See von Leeb, supra note 56, at 557. He was convicted for transmitting an illegal order without taking similar, affirmative steps to prevent war crimes pursuant to that order. Id. at 560–61 (discussing Barbarossa jurisdiction order).

⁶⁰ See Weston D. Burnett, Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra, Mil. L. Rev., Winter 1985, at 71, 93.

⁶¹ See, e.g., Yamashita, supra note 57; List, supra note 56, at 1272 (command of occupied territory “not only implies the control of the inhabitants … but the control and regulation of all other lawless persons or groups,” including those not under one’s command). The List tribunal and similar tribunals treated such officials as though they were civilian. It is appropriate to extend that rationale to civilian authorities with political responsibility for territory in which atrocities were committed.

⁶² The proceedings before the Tokyo Tribunal may prove more relevant to the situation in the former Yugoslavia than will the better-known trials in the European theater. Virtually all defendants pressed their lack of command responsibility over troops committing violations, their lack of communications caused by the Allied advance, and their inability to control troops fighting the end of a losing war. See Parks, supra note 58, at 67–73.

⁶³ See note 61 supra. In the Nicaragua case, the International Court of Justice said that violations of international humanitarian law would be imputed to a supporting state only if that state had “effective control” of the forces committing the violation. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 4, 65 (June 27). The Court did not find such control in that case, despite the United States role in establishing, training and supplying the Nicaraguan rebels. It seems therefore to have set a very high threshold to determine that officials of third states are culpable for violations. It is not clear that this standard accurately reflects existing customary international law concerning command responsibility of individuals, which the Court did not appear to review.

⁶⁴ See note 22 supra.

⁶⁵ See U.S. Dep’t of the Army, The Law of Land Warfare 182 (Field Manual 27-10, 1956).

⁶⁶ Dec. 16, 1966, 999 UNTS 171.

⁶⁷ See Nuremberg Charter, supra note 22, Art. 19; Tokyo Charter, supra note 27, Art. XIII.

⁶⁸ See Transcript, supra note 19, at 16 (statement of U.S. representative).

⁶⁹ See United Nations War Crimes Commission, supra note 12, at 51–52.

⁷⁰ See Transcript, supra note 19, at 17 (statement of U.S. representative).

⁷¹ French working draft 14 (manuscript on file with author); see also Nuremberg Charter, supra note 22, Art. 12 (permitting in absentia trials).

⁷² CSCE Rapporteurs, supra note 19, at 67; Letter from the Permanent Representative of the United States, supra note 45, Art. 13, at 7.

⁷³ Secretary-General’s Report, supra note 17, at 26.

⁷⁴ Letter of the Permanent Mission of Yugoslavia, supra note 19.

⁷⁵ These are collected in Transcript, supra note 19.

⁷⁶ Id. at 15.

⁷⁷ See, e.g., text at notes 46–47 supra (discussing statements on scope of crimes against humanity).

⁷⁸ See Nicaragua case, 1986 ICJ Rep. at 107 (interpreting obligations imposed by UNGA resolution in the light of U.S. statement in First Committee).

⁷⁹ Accord Vienna Convention on the Law of Treaties, May 23, 1969, Art. 31(1), 1155 UNTS 331, reprinted in 8 ILM 679 (1969).

⁸⁰ See Gerald B. Helman & Steven R. Ratner, Rescuing Failed States, Foreign Pol’y, Winter 1992–93, at 3; Steven R. Ratner, The Cambodia Settlement Agreements, 87 AJIL 1 (1993). These situations may occur more frequently if the United Nations expands its peacemaking role. See generally An Agenda for Peace: Preventive diplomacy, peacemaking and peace-keeping: Report of the Secretary-General, UN Doc. A/47/277–S/24111 (1992), reprinted in 31 ILM 956 (1992).

⁸¹ See supra note 5 (on cycle of vengeance operating in former Yugoslavia). See also Roger Thurow, Even Serbs Discover No One Is the Victor in Yugoslav Conflict, Wall St. J., July 7, 1993, at A1, A9 (“ethnically cleansed” areas facing difficulties rebuilding); 138 Cong. Rec. E2290 (daily ed. July 29, 1992) (statement of Rep. Hoyer).

⁸² See Telford Taylor, Nuremberg and Vietnam: An American Tragedy 40–41 (1970).