Even in war, justice must prevail

"Victor's justice," was how Goering sneeringly described the Nuremberg war crimes trial. And he had a point. The Allies had won and so they were free to define and dispense justice. Had the Germans prevailed, a radically different definition would have been employed. The Nazi hierarchy would have survived unpunished and Churchill would have been in the dock. Logically, therefore, there is no higher court than force of arms. Might is right.

Except that nobody can believe any such thing and still claim to be human. Cynical contemporary relativism can only go so far. If what the Nazis did is not absolutely wrong, then human life is a joke and nihilism is the only sustainable philosophy. If we had not put Goering on trial then, in theory, every petty thief or murderer brought before the courts could claim injustice - one law for the rulers and one for the ruled.

Yet Nuremberg remains a historical one-off. An attempt by the Americans to impose the same justice on Japan foundered because of the exclusion of the Emperor - the top man could not be brought to trial because of a diplomatic agreement. So the whole ideal of accountability was compromised. And, after the First World War, the Germans themselves were asked to prosecute their war criminals, a crazy idea that led only to the fiasco of the convicted being deliberately allowed to escape. War crimes by their nature require international jurisdiction.

Now the Nuremberg precedent is being invoked by the United Nations against the Bosnian Serbs. Radovan Karadzic, their leader, Ratko Mladic, the military commander, and Mico Stanisic, the secret police chief, have been named as war-crime suspects. And Dusan Tadic, accused of murder, rape and torture, has been delivered to the custody of the United Nations tribunal in The Hague. A second Nuremberg is being planned to pass judgment on a second horror at the heart of Europe.

In terms of the simplest realpolitik, the UN appears to be creating a tactical nightmare for itself. On the one hand it is trying to deliver peace to the former Yugoslavia; on the other it is threatening those with whom it has to negotiate that peace with long jail sentences - the death penalty is not available to the tribunal - if they are ever caught outside Bosnia. They could in theory turn up for a Geneva conference only to be arrested and extradited to The Hague.

A rational calculation of advantage in this case might conclude that it is better, at least for the moment, to keep quiet about the war crimes. As long as Karadzic and friends are in power, they are the people we have to talk to. However insincere their participation in the peace process, they remain the only men who can stop the carnage. Short of a military defeat of the Bosnian Serbs or a decision to isolate and abandon the people of Yugoslavia, it is difficult to see under what circumstances the tribunal can seriously pursue its task.

In any case, how nobly motivated is that task? The UN aspires to sit in judgment and yet declines a decisive military intervention. Perhaps the rhetoric of justice amounts here to little more than a sop to Western consciences.

Furthermore, Nuremberg has, so far, failed to set an effective precedent. Pol Pot and Saddam Hussein have not faced a jury and neither have countless other political killers. Nobody is now likely to answer before any human court for the slaughter of the Chinese cultural revolution, nor for the massacres in Tibet and the murderous oppression in Burma. And what of Rwanda? What, if it comes to that, of Gerry Adams? Surely there is a prima facie case for investigating a link between his desk and hundreds of IRA murders.

Faced with the improbability of anything resembling justice in such cases, it would be easy to dismiss the whole idea of transnational accountability. Best, perhaps, just to muddle through, defeating tyrants when we can and talking to them when we must. Justice is only a matter of feasibility. Might, after all, is right.

Yet Nuremberg does remain a noble precedent. It happened because the crimes of the Nazis were seen to be so horrific, so unspeakably evil that they could not just be swept beneath the carpet of a post-war settlement. They were crimes not just against an individual, nor even a state, but against humanity. They unified the world. Nations may not be able to agree on much, but they can certainly agree that the industrialised slaughter of innocents is wrong.

The trial of the Nazis did more than simply slake a thirst for vengeance. It also established the guilt of the political master: SS privates were not on trial, their bosses were. The desk men, insulated from the blood in their offices, were caught. The Nazis' own fastidious concern for bureaucratic procedures provided the evidence.

The 20th century, more than any other, demands that such guilt be established. War, in our age, is not made upon armies but upon people, and we seem to have a talent for creating ideologies that demand mass extermination rather than persuasion. The polite conventions of the battlefield (even the Nazis were surprisingly conscientious in treating prisoners according to the Geneva Convention) have become irrelevant.

The problem is that if Nuremberg is to be an effective precedent, some kind of continuing international system of justice is required. Tyrants can hardly be expected to worry about facing justice if they know it only happened once in the extraordinary conditions of the aftermath of a world war. In theory, the end of the Cold War should have made that international justice easier to achieve. As long as every crime could be blurred or concealed by the superimposition of the Communist-capitalist conflict, there was never much hope that war criminals could be caught. The war was in effect still in progress. But now there is no single, dominant conflict. There are, rather, a mass of local conflicts pursued on the basis of local logic. And what logic could be more local, more evidently evil than "ethnic cleansing" in Bosnia? Surely that amounts to a criminal conspiracy as flagrant, as provable as that of the Nazis.

The argument about war crimes is, ultimately, an argument about the existence of moral absolutes. These are frequently embarrassing and awkward entities. But what choice do we have? We cannot for ever be balancing possible rights and probable wrongs. That way lies an interminable demoralising process of deal-making and compromise. In the end we have to take a risk and go for the guilty man - for justice maybe, but also because any alternative course leads only to cynicism and nihilism. The ideal of accountability must be preserved. We should never abandon the aspiration that somehow, some day, whatever the practicalities, the Bosnian Serbs will face justice.