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A Presentation by Thomas S. Warrick, Partner, Pierson, Semmes and Bemis
MS. FLEMING: Our final speaker is Thomas Warrick, who is a partner in the law firm of Pierson, Semmes, and Bemis in Washington, D.C.
His practice includes International Arbitration Law, Energy Litigation, Complex Valuation Cases, and Computer Law.
Since February, 1993, he has also been a consultant to the International Human Rights Law Institute of the DePaul University College of Law. He is working as a senior counsel to Professor M. Cherif Bassiouni, who is the Rapporteur for the Gathering and Analysis of Facts, and since October 1993 has been the Chairman of the United Nations Commission of Experts on the former Yugoslavia.
The Commission is charged with investigating and reporting on violations of international humanitarian law in the former Yugoslavia since June 1991. Its mandate includes investigating allegations of genocide, of crimes against humanity, and war crimes.
Following issuance of a formal report, the commission's work is to be turned over to the prosecutor of the International Criminal Tribunal for the former Yugoslavia.
Mr. Warrick's responsibilities have included preparing analyses on ethnic cleansing in Northern Bosnia, and serving as liaison with the U.S. Department of State on a variety of issues. He is working with the staff of the International Criminal Tribunal to coordinate transfer of information gathered by the Commission for ultimate use by the prosecutor.
MR. WARRICK: I want to thank, first, Arlene Fleming and George Kenney for putting together a very important program on an issue I think that gets far less attention than it probably deserves, and also, like Hays, I need to begin with a disclaimer that my remarks are personal and not on behalf of the U.N. or anyone else.
[Slide of elephants.]
MR. WARRICK: One thing that has to be addressed at the outset other than giving you a slide to focus this on, is the question of why are we talking about the destruction of cultural property when there has been so much human suffering in the former Yugoslavia? You probably have seen the figures of 200,000 people killed that is a Bosnian government figure and hundreds of thousands of people made homeless, and yet why are we focusing on buildings even just at this particular seminar here today?
I think it is for the same reason that environmentalists want to focus on elephants. You know, there was a time in the '60s and '70s when it was thought that focusing on these big flagship species like the African elephant was a bad thing because it detracted from what was thought to be the more important issues of biodiversity which in fact are the insects and plants that provide a lot of medicines and actually make up a larger part of what we think of as the environment.
Then in the last decade we have begun to realize that if you start by protecting the larger flagship species it is like the top of the pyramid, where when you get down to the bottom, just because you protected the thing at the top, the things at the bottom in the end also get protected.
There is some of that same biodiversity aspect in the protection of cultural property as well.
It is worth focusing on cultural property even as you think about trying to protect lives and to reduce suffering, if only because when you get that artillery gunner in the hills trying to decide, well, now, should I target this mosque or this church or this bridge, or should I target this place over here where they have got this collection of trucks and artillery pieces, you also want that fellow to be thinking, now wait a minute, what about the hospital over there? What about this aid center or refugee camp?
So there really is a human aspect to the protection of cultural property and that is I think why it is worth focusing on this issue in the overall context.
[Slide.]
MR. WARRICK: Let me just give a brief overview of what the United Nations' Commission of Experts on the Former Yugoslavia is about.
This was established in October of 1992 by the United Nations Security Council with a mandate to prepare a report, to examine and analyze information, to try to conduct investigations, and in the end to come up with a report of an impartial body of lawyers on the entire range of the violations of international humanitarian law in the former Yugoslavia.
Initially it had five members, the Chair was Frits Kalshoven of the Netherlands. He resigned in August and actually went public with I won't say a small flap say, a medium-sized flap in October when he blamed Britain, Germany, France, and Italy for obstructing the work of the Commission and also blamed the U.N. bureaucracy for holding up the Commission's work.
Also, Torkel Opsahl passed away from a heart attack. He died at his keyboard I'm afraid the 1990s way to go and when the Commission reorganized Cherif Bassiouni was made the Chair. Two new Commissioners, women, were appointed: Christine Cleiren from the Netherlands and Hanne Sophie Greve from Norway.
I should also highlight the work of Bill Fenrick, a Commander in the Canadian Navy, who was instrumental in some of the investigations into the destruction of cultural property that we are going to be talking about today.
[Slide.]
MR. WARRICK: Now where is the Commission in its work? Right now we are in the process of submitting to the Secretary-General a formal report that will be about 70 pages long. It is going to go through a review process in the Office of Legal Affairs at the United Nations. One certainly would not expect to see any substantive edits to the report and eventually it will be released to the Security Council in two to three weeks. That should presumably be the signal for it to become officially public.
That is going to be a very general report, obviously in the language in which U.N. reports are customarily written.
The thing I want to draw your attention to is something you should watch for, the publication of what we call "annexes" a total of 3,300 pages of detailed reports going into as many of the specific violations of international law, war crimes, crimes against humanity and genocide that we have been able to put together.
A great deal of this concerns things like the siege of Sarajevo, the ethnic cleansing of Prijedor, the ethnic cleansing of Brcko, the systematic sexual assault and other issues.
The detailed complete version is going to the Prosecutor in The Hague. That is going to contain names. What we hope to make public is going to be redacted, where names of witnesses and other people who ought not to have their names released, would be concealed. Obviously, there are, however, certain, shall we say, notorious individuals for which there is a substantial amount of evidence as to their involvement in certain activities, and that I would hope will be made public.
There are also several other databases we have been putting together that are going to be turned over to the Prosecutor. The Commission was able to do an exhumation of one mass grave in Sector West. This is, we believe, a grave of Serbs who were killed by Croatians during the first phase of the war between Serbia and Croatia.
There was another mass grave near Vukovar, a town called Ovcara, which is believed to have survivors, or what would have been survivors, of the siege of Vukovar in the hospital there who were believed killed by the Serbs who besieged the city in November, 1991.
There were three specific field investigations that the Commission was able to carry out. The first was a detailed study of the siege of Sarajevo, including in particular the targeting of shells, which turned out to be one of the most interesting and significant for investigations of the destruction of cultural property.
We have also just finished a study of systematic sexual assault, interviewing several hundred witnesses, which was an important project but not one we should discuss here today.
There was also a separate investigation into the shelling of Dubrovnik, which is relevant.
[Slide.]
MR. WARRICK: Let me talk about Dubrovnik in some detail. This presents some, I would say, some characteristic examples of the problems that you are going to have in actual prosecutions of violations of international law.
We were able to do a fairly detailed study of this, in large part because of the availability of two experts who assisted the Commission, one of them a UNESCO official who was actually there during the worst day of the shelling, December 6th, 1991, and also someone from the Council of Europe. In addition, four military lawyers, two from Norway and two from Canada, provided an analysis of some of the targeting patterns and did some damage assessment work.
Of the 3,300 pages we put together, about 300 are on the shelling of Dubrovnik alone, and at this point I am not able to say whether it will or will not be made public.
The second investigation involved the Mostar Bridge, which has already been discussed at great length.
Let me just mention very, very briefly the siege of Sarajevo because this I think is going to be a very interesting case. There is, and indeed we saw from some of what Andras Riedlmayer showed us, there is photographic evidence showing before and after what was done. There is also very detailed evidence about targeting patterns and these, when you present them in a chronological fashion, are highly revealing of what was being targeted and why. In many cases it disposes of questions of collateral damage.
You can, through the testimony of witnesses, establish the patterns of shelling to show that certain things were done day after day after day in a way that rules out any defense that might be offered by someone along those lines.
[Slide.]
MR. WARRICK: Let's go back to Dubrovnik for most of the rest of this.
[Slide.]
MR. WARRICK: I am not sure how much you remember of the siege of Dubrovnik. This was during the struggle between the Croatian and the Serbian forces in what was the Yugoslav National Army or the JNA as it is known by its acronym.
Remember that in December Vukovar had just fallen and Dubrovnik was being shelled. The campaign for Dubrovnik actually went on for quite some time. The worst of it was on December 6th. On December 7th you had what amounted to the beginning of a ceasefire. Eventually Cyrus Vance negotiated a ceasefire between Croatia and the Federal Republic of Yugoslavia and that has pretty much held to this day, with a number of violations.
Why was Dubrovnik shelled? From the military standpoint, there were Croatian forces in Dubrovnik. One of the factual issues that I suspect will be hotly debated is where those forces were.
Another question is why there was so much shelling. Here we get into one of the things that I wanted to describe in order to sensitize everyone to the sorts of defenses that will be offered by anyone who would be accused of having fired on targets that were not permitted under military law.
One of the things that characterizes Dubrovnik is that it is on a promontory and the city itself is somewhat elevated. There is a valley here and this is the coast there is a valley and then there is another area of high ground. This is where the JNA artillery was for the most part stationed. From the standpoint of the attacking forces, they faced a great deal of difficulty in trying to take the town by conventional military assault. As they came down the downslope here, they would have been within range of the Croatian forces defending the town so there would not have been the possibility of a surprise attack.
Once the troops got down here, they would have had to climb up. The scale here obviously is exaggerated. This is my crude attempt at a computer drawing.
The forces coming up the hill, however, would have faced all of the problems of attacking forces throughout history when trying to fight their way uphill. From that standpoint, a conventional military assault would have been very costly to the Serbs and as we saw from what Hays Parks was telling us earlier. Military commanders, and we cannot just say that this is something that American commanders can decide obviously this goes to other military commanders they have the choice between trying to save the lives of their own soldiers versus trying to take military objectives.
The issue of whether the shelling of Dubrovnik was a matter of military necessity is one that is going to be discussed because there is no doubt, from the standpoint of an analysis of the military aspect of the campaign, shelling really was easier as a means of trying to force the surrender of the town. One problem, if you want to look at it in those terms, is the number of protected targets within the old city that were hit, targets that had no military significance, targets that were protected under any one of a number of applicable parts of international humanitarian law.
The JNA commander, according to some reports, at least according to some reports, was Ratko Mladic, a name that has since resurfaced, to say the least. He made the decision that he was going to shell what he thought was necessary at the time. There were allegations let's have the next one
[Slide.]
MR. WARRICK: There were allegations made that, for instance, the Croatians were stationing artillery near hotels and that was why some sites in the old city were hit.
Was the shelling of Dubrovnik a war crime?
I am first going to disappoint some of you by saying I am not going to give you the answer to that. You are going to have to wait until the report comes out, but let me just walk you through some of the considerations.
As Hays told us earlier, hitting a protected target is not necessarily a war crime. It depends on what the law says and it also depends even more on what the facts are. The law here is relatively straightforward. Certainly the fourth Geneva convention and Geneva Protocol I applied. Also, as Hays said earlier, the '54 Cultural Property convention applied, although for purposes of war crimes prosecutions, the Fourth Geneva convention is what gives you the basis of saying a Grave Breach occurred and therefore the War Crimes Tribunal has jurisdiction.
In large part because we had somebody who was there at the time, we do have quite a few reports on what was being shelled and what the targeting patterns were.
Let me explain what I mean by targeting pattern. One of the things that often occurs during an artillery barrage is the artillery will fire something at the general direction of the target, trying to hit it as closely as possible. Almost always the first shot won't hit. So let's say if I am firing from here at that overhead projector, my first shot may go long, so I'll recalibrate the angle of my gun. I'll fire a second shot. Let's say that goes short. I then recalibrate half-way between the two settings and now I can hit my target, okay?
So you now, as an impartial observer of this, can watch the order in which the shells hit and can determine what I was actually hitting I'm sorry, what I was actually aiming at the overhead projector.
If I hit a protected target that is just this side of the overhead projector, you could conclude perhaps reasonably from that that was not a violation of international law because I wasn't targeting that, but on the other hand if the third, fourth, fifth, sixth, seventh, eighth and ninth shells all hit a protected target, you have got a pretty good argument, I think, that that was what I was aiming at and if that was a protected target and if there was no defense of military necessity, then that would be a war crime.
The answer to whether the shelling of Dubrovnik was a war crime is very heavily fact-dependent. You have got to have a lot of evidence as to what was being targeted, how it was hit, what was going on in the area, whether there were Croatian troops firing back, whether they were in fact using these hotels and some of these other protected buildings as means of hiding the artillery or protecting them.
One of the things that Hays told us so much about, you will often see legitimate targets next to protected targets. You can look at the number of shells that hit protected targets, and this, by the way, is a very key factor in analyzing the siege of Sarajevo, where we have very detailed reports of what was hit.
The establishing targeting patterns as we have discussed, we can look at adjacent targets that were also hit. We can also look at reports of activities of Croatian forces. Many times it will be the opposing forces that will provide the court with evidence that justifies their own actions from their perspective, the classic example being the attack on the bunker in Baghdad where it was the U.S. forces that provided evidence. The U.S. forces in essence said here is everything we knew about this; this explains why we targeted that particular site.
The court is also going to have to look at justifications offered and at their credibility. One report I happened to come across in preparing this, noted some EC officials saying that the JNA had initially denied any involvement in the shelling of Dubrovnik, as if it was being done by some totally foreign, alien group of people, and then the next day they said, yes, indeed, they were shelling it and they would stop and they did.
Interestingly, the fact that they said they would stop and they did may end up being one of the things that gets people convicted, because that proves that you had command and control over those forces.
Let me talk about another thing that was alluded to by Andras earlier today, the destruction of houses of worship.
[Slide.]
MR. WARRICK: This has been one of the, I would say, somewhat difficult things to analyze in the overall conflict. We have made a pretty good effort at it.
From an Associated Press article, "Yugoslavia Heritage Lost," I came up with these statistics. Reports, and this I think comes from official sources, from throughout the former Yugoslavia, say there is some aggregation on the order of 1,000 Islamic mosques that have been damaged or destroyed, 483 Roman Catholic churches; 470 Serbian Orthodox churches; two Jewish Synagogues. I suspect that some of the figures are probably off and perhaps by a considerable amount.
Now the interesting question is who is hitting what? We actually have a fair amount of information on that. What I am going to show you, I am going to tell you now, is not anything that anyone should ever say is final or means anything other than that these are the figures that I am going to show you as roughly representative of what we have in our database.
[Slide.]
MR. WARRICK: What I am showing you here are some figures taken out of what we euphemistically the "The Incident Database," which is in Chicago. Here we have simply been adopting the Drift-Net approach. We observe or try to gather up absolutely every report that we can of any violation of international law, whether it be killing, torture, sexual assault, destruction of property, anything, and we do this without any regard to its credibility or accuracy. Those decisions are going to be made separately. We can talk about them later if anybody wants to.
What you see here are simply accounts of what are euphemistically called "incidents." These incidents may in some cases involve the destruction of tens or hundreds in some cases of churches or other houses of worship, but for this purpose they count only as one.
What I essentially did was I asked the database to tell me who is shooting at what. Obviously, one of the things that we keep track of as much as we can is who the perpetrators were of the incidents that we recorded. What it shows pretty much confirms what everybody would have suspected, and if nothing else, this validates the database showing things that are representative of the conflict as a whole.
There is relatively little involvement by Bosnian forces, although I do note that the topic heading says it predates the receipt of reports of Bosnian-Croatian conflict in 1993. Understand that there is a lag, of necessity, between when an incident occurs and when we here in the United States get a report that gets entered into the database.
As between the Croatian and Serbian forces, the Croatians seem primarily to have targeted Orthodox churches and this is emblematic of a conflict between Croatia and Serbia, especially in the area of Croatia that adjoins northwestern and western Bosnia.
The Serbian forces, on the other hand, have been targeting Roman Catholic churches and mosques, a ratio roughly of two mosques for every Roman Catholic church. Those numbers are representative of the total and that is, by the way, roughly consistent with what the official figures that we looked at a moment ago were telling us.
[Slide.]
MR. WARRICK: What have we learned about the destruction of cultural property? Let me first draw some very general lessons. One thing that can easily be done today, and yet I'm not confident there has been enough of it done in many countries around the world that have property that should be protected in the unfortunate event war occurs, is to make a very careful video record of what the site actually looked like beforehand. Getting ahold of things has proved to be very difficult for some sites, very easy for others.
One thing that we got from the Bosnian government that was quite helpful, was we wanted a lot of pictures of the Mostar bridge. What they sent us was effectively a travelogue into which they had spliced footage of what it looks like today. That sort of thing actually works. I mean it's very easy to present this to a court and say here's what this bridge looked like. Here's what the surrounding terrain looked like. It is quite apparent there were clear lines of sight down into the city. It is clear that there were no military staging areas nearby. >From this you have to conclude that if they were hitting it, they were aiming at it.
Much of that we have seen in fact in the slides that we have already seen this morning.
[Slide.]
MR. WARRICK: When and if damage occurs during wartime, it is important in attributing responsibility, especially criminal responsibility, to get people on-site as quickly as possible afterwards.
In the case of Dubrovnik, we were fortunate to have had a UNESCO observer there. An impartial person could record in particular, the targeting, and what shells were landing where and when, the "when" being one of the most important things.
It is very difficult afterward to look at crater patterns and to always know in what order they were made. It is easy in some cases, Sarajevo being an example. You have got one crater here, one crater here, 53 craters here. You have got a pretty good idea of what is going on, but that is not always the case.
One thing we would have liked to have done in some instances is to have been able to send investigators into particular areas right after the fighting in those areas ceased. The reason the Commission couldn't do that, quite frankly, was a lack of money.
The third best is being able to come in after the fact and try to do something. Cases become very difficult to prosecute at that point and there is just no way around that.
Finally, one thing that I think Hays has driven home to all of us is that it is far better to try to educate people in the military in any country as to what their responsibilities are under the international law as it exists as it is recognized in that country, especially in countries like the former Yugoslavia, that are parties to things such as the 1954 Hague Convention.
[Slide.]
MR. WARRICK: Now let me ask a more specific question, which is what is the War Crimes Tribunal for the former Yugoslavia going to do with all of this information?
First, we are going to give it all the information that we have put together, not just the synthesized data but also the raw data and from that, we hope, they are going to be able to do a great deal.
What I am very concerned about, and some of you have heard me talk about this before, is that they are not going to have enough money, quite frankly, to do a lot of the investigations that really need to be done. I will just show you this.
[Slide.]
MR. WARRICK: This is a breakdown of the proposed budget for the War Crimes Tribunal. This is, I emphasize, not what actually passed.
The budget for the War Crimes Tribunal for the two year period '94 and '95 was supposed to have been $32.6 million. Of that, they had allocated this is done by the United Nations Legal Office, its Office of Legal Affairs it allocated $22.6 million to go for judges, administration and overhead. This includes things such as renovating a courtroom, renovating jail facilities, hiring clerks and other administrative type of people. They had allocated $1.4 million to defense counsel and they allocated $8.1 million to salaries for lawyers and investigators in the Prosecutor's Office.
The problem is this. They had allocated a total of $562,300 to cover travel for investigators, translators going on interview trips, expenses of investigations, travel for witnesses, forensic and medical experts, travel of accused, keeping up with documents that come in, tracking new war crimes, and investigations into the destruction of cultural property.
I think it is a fair comment on this that this is grossly inadequate. My sort of rough order approximation suggests that the Tribunal is roughly $20 million short of what it needs to conduct a minimally credible prosecution.
One of the things that I would point out is this is not what actually got approved. What actually got approved was 21 percent less than this. What happened I do not have a slide on this, we have not gotten the actual document a group called the Fifth Committee, which is in U.N. terms what actually appropriates the money, did not pass any budget for 1995 yet and in 1994 approved only $11 million.
If you want to look through the math
[Slide.]
MR. WARRICK: since the original $32.6 million budget was for seven quarters, because in reality nothing much happened during the first quarter of 1994, you have three-quarters of 1994 plus four quarters of 1995. Let's take it just for 1994. Three-sevenths of $32.6 million would get you $13.97 million. That was what the $32.6 million translated into. Instead they appropriated only $11 million for the balance of this year, which is 21 percent less.
So in order to conduct any sort of credible prosecutions of the destruction of cultural property and, indeed, all of the other war crimes, I think a very significantly greater amount of money will be needed and I would hope that those of you who are in a position to write letters would consider the possibility.
Thank you.
[Applause.]
QUESTION: I have a question about the case against Dubrovnik when you had this as part of an international conflict. At that time, though, the international community had not recognized Croatia, and you have Croatia against the Federal Republic of Yugoslavia but at that time they had not declared themselves to be the Federal Republic of Yugoslavia.
MR. WARRICK: My understanding is the declaration of independence was June of '91.
MR. KENNEY: But they were not recognized.
MR. WARRICK: You know better than I. I think certainly the Security Council resolutions establishing the War Crimes Tribunal give June of '91 as the date and I believe refer specifically to international law as the applicable law, so you can say there is an ex post facto or a looking back of international law as being applicable from June of '91 to the conflict. At least that is the argument that you'd make.
MR. KENNEY: The EC recognized Croatia in January of '92 and I think it was May or June of '92 when the so-called Federal Republic of Yugoslavia set up its own constitution and declared kind of a secession from the former Socialist Federal Republic of Yugoslavia.
MR. WARRICK: You are not going to get me to say anything other than international law applied to the conflict between Croatia and the Federal Republic. Point noted, thank you very much. Yes?
QUESTION: As many people here probably know, the mandate of the Commission of Investigation expired this last weekend.
MR. WARRICK: That's right.
QUESTION: Does that mean that no new evidence will be gathered other than the evidence already submitted?
MR. WARRICK: The Prosecutor of the War Crimes Tribunal in The Hague should be conducting investigations. However, at present he doesn't really have anybody on staff to do that, so for the moment, as far as I am aware, no one is actually conducting any investigations. There are no investigations, to my knowledge, presently underway by the Prosecutor.
There is in fact no Prosecutor of the War Crimes Tribunal appointed yet. There was one. He didn't do very much, was eventually appointed Interior Minister of Venezuela and then resigned. There's been a Deputy, or actually an Acting Deputy, who has been also the Acting Prosecutor but so far he has primarily been doing been talking to various governments and has been trying to interview people, but I am not aware really of anyone who has actually started any investigations for now.
QUESTION: Does that mean that the largely volunteer staff effort at the university has been closed down?
MR. WARRICK: It is not doing any more investigations. We are writing up the results of what we have done, but you are absolutely right in that there is no ongoing investigative work that we are doing.
QUESTION: Does the convention not apply to civil conflict, to civil war?
MR. PARKS: It has a smaller aspect to it. It is like most of the law of war treaties being far more limited in its language with regard to internal conflicts. That is one of the things that we are trying to remedy in its revision.
The fundamental problem you have is that most nations are very reluctant to have international law apply to what they consider their domestic matters. We are having the same problem in other parts of the world for example, the use of land mines against a nation's own citizens. That does pose problems if there is a prosecution because certainly one of the defenses of some of the accused will be that that law was not applicable, so that is a serious dilemma that may cause us problems.
QUESTION: This seems like a very minor point compared with the issues that have been raised, but I did notice in your list of things that we have learned you said complete video documentation of all sites as they exist
Is there any particular reason why it would be video as opposed to photographic? I just wonder. Two obvious disadvantages to video instead of photographic it seems to me would be expense, the difficulty of transmission and viewing, and also the difficulty of paper and pencil and calculating exactly what the ground plan is from a video.
MR. WARRICK: The reason for video is partly technological and I won't say legal I would say more persuasive. Video works better because you actually get to see three dimensions of things where you don't always see it in two dimensions.
Another problem is at least as we sit here in 1994, it is a lot harder to fake a video than it is a photograph. You will get some very skeptical attitudes taken towards some photographs that will not be expressed regarding video just because fakery is so much harder to do.
This is an esoteric aspect of the law but you really will get people questioning photographs these days because you can now make anybody appear to be with anybody else. You can do it with video, but there actually are ways of detecting a lot of that, not all of it but a lot of it.
So in a confrontational context, the video is going to be regarded as easier to authenticate and therefore more relevant, or more probative, I guess, would be the better word.
QUESTION: I can see that for actual documentation of destruction as it is going on, but why fake the equivalent of a postcard or a floor plan? How does that apply? If someone is trying to suggest that a cathedral had four floors instead of two?
MR. WARRICK: You wouldn't see it so much in the case of cathedrals. You might see it in other situations. I am simply saying that if there has to be one method as of 1994, I would say take a video it's cheap and easy enough. To address the other thing, you talked about lines and angles. You can put video into a computer with almost no money these days and then do exactly that, so it is very easy to do it. I have got a laptop I can show you videotapes, you know, television videotapes of witness interviews and other things that just run on a little tiny laptop computer, so I mean the technology to do that is literally a piece of cake these days.
QUESTION: I wish to start by saying I am a bit discouraged. You spoke about the 1954 Hague Convention having no enforcement provisions but some countries wouldn't even consider approving it for 40 years or so, still without enforcement provisions.
On the other hand we are talking about the tribunal, which does not have enough funds to investigate those crimes that have been committed, and on the other hand we are looking at what is going on in Bosnia Herzegovina and the international community at last has decided to stop the Serbs, but the ethnic cleansing is done and now we are thinking of the north of Bosnia and we are crossing our fingers in that they won't go and try to widen that conflict and on the other hand at this symposium we are discussing the architectural heritage and Mr. Pasic has a project, whereas we see that actually, the solution to the conflict is discussed along ethnic lines. It is going along those lines. We should really tell Mr. Pasic that we should forget about the multiethnic, multireligious projects and that this whole thing, this whole discussion is an intellectual discussion which is not going to bear any effect on the real policy-makers. I'm discouraged. Please forgive me.
MR. PARKS: Let me go back to the first part of this, the law. The '54 Hague Cultural Property Convention, like all law of war treaties, was promulgated with the hope that people will implement and follow it in good faith. If that fails, there is the fallback to the provision in the 1949 Geneva Civilians Convention that makes it a Grave Breach to conduct willful and wanton destruction of property.
There are problems certainly in getting a person before an international tribunal. One is the monetary one.
You must recall that a number of members of the United Nations will always vote on things that are nonbinding in the General Assembly but not support them in Security Council because they recognize them as a very dangerous precedent as to how they might be called for an accounting in their own countries for human rights violations.
This may come to nothing. There may be something in the final settlement that says there will be no war crimes investigation. The one weakness in international law is that prosecution is not certain. But this is not unique to international law.
Your odds of committing an act of murder in the United States and actually going to prison are something like one in a thousand, so failure of enforcement is not unique to international law.
At least for the first time an international effort is being made to try: (a) to investigate, preserve the evidence, and (b) to take the next step. Now what that step may be will depend in part on the public pressure.
QUESTION: In fact, I was going to ask about public pressure, and if the 1954 Hague Convention goes to the Senate, it seems to me that would be a good time to re-emphasize some of these problems and give some visibility.
Are there any members of Congress that you know of who do care, who would be influential down in the Senate Foreign Relations Committee? Has anyone there shown an interest?
MR. PARKS: I am just a poor dumb civil servant
[Laughter.]
MR. WARRICK: I can't plead "civil servant"
[Laughter.]
MR. WARRICK: I can plead, however, I don't follow Hague '54 as closely as Hays does. I do know that there have been a number of Senators who have certainly taken a very close and active interest in the whole subject of war crimes investigations in Bosnia in particular. I would say those are probably the ones to start with names such as Biden, Dole, Pell, Specter and I am leaving one out DeConcini. Those come immediately to my mind as the ones whom I have read about, but, you know, that is in the context of Bosnia.
MR. KENNEY: With that we will wrap the session up. I can't really think of any kind of appropriate concluding remarks to make except perhaps this. Our Western governments collectively have so miserably failed to see the big picture in this war in the former Yugoslavia that it is quite unlikely to expect them at some point to come to their senses and take a big picture point of view and go ahead and put together a good policy to pursue it.
On the other hand, it is not unreasonable to suppose that perhaps our governments can focus on smaller picture items such as the 1954 Hague Convention or such as a question of international law and war crimes and so on, and tackle these things one by one. Indeed, I think that is what we are doing, and that there is a lot of inertial momentum there with a lot of very good lawyers working on this kind of thing, and, as we have seen, architects and others.
Collectively I think those efforts will matter, but there is a point that Tom Warrick has always made to me which I have found very compelling, and it is in regard to war crimes against civilians, and I think this applies to crimes against property as well: the more public attention we put on these issues, the more of a deterrent effect there is, so when we say concentration camps and had an international outcry about that, well, the perpetrators toned down the egregious nature of the violations and I think that we could expect to see somewhat similar results with more attention to the question of property, so this is another angle of getting a handle on the political problem. It is not the whole solution but it is a part, and I want to thank you all for coming today.
I want to thank very much our presenters, who did an outstanding job. We are going to try to put together a transcript of this morning's seminar and we'll be happy to make that available to you, probably for a small fee to cover our costs. You can contact me or Arlene Fleming to ask about that in the coming weeks.
Thank you very, very much.
[Applause.]
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