War-Crimes Trials: the First Test

EARLY in 1993, during a trip to the Balkans, I met with Bosnian Muslims who had just been released from the notorious Serb detention center of Omarska in Northwest Bosnia.

In 20 years of covering refugees I have rarely met such traumatized men. One of their stories of brutal, sadistic sexual torture and mutilation was particularly shocking.

On May 7, the former inmates of Omarska may get some measure of satisfaction when their alleged torturer, Dusan Tadic, goes on trial in The Hague before the International Criminal Tribunal for the former Yugoslavia. Mr. Tadic is charged with 32 counts of crimes against humanity and war crimes.

This will be the tribunal's first trial since its creation on May 25, 1993. It is also the first time an individual has been charged with crimes against humanity in an international court since the Nuremberg and Tokyo trials at the end of World War II. As a result, Tadic's judges will no doubt have half an eye on history. But they should also be aware that their handling of the case will have a critical bearing on the implementation of the Dayton agreement in Bosnia itself.

For many, the jury is still out on the tribunal. So far it has indicted 53 individuals, but only two are in custody. It will shortly ask the United Nations for $41 million for 1996. At a time when most UN agencies are being forced to make deep cuts, some are asking whether the tribunal is worth it.

This is the wrong question. The real questions are three-fold: First, why is IFOR (NATO's Implementation Force for Bosnia) tiptoeing around war criminals in Bosnia instead of chasing them down; second, why are governments like Britain still denying the tribunal their full political support; and third, do they not understand that this is eroding support for the mission in Bosnia that their soldiers are helping to implement?

This hesitation is extraordinary because the Dayton agreement is unique among contemporary peace settlements in being built around the repudiation of war crimes. This contrasts sharply with the approach of international negotiators during the actual fighting in Bosnia. David Owen, the European mediator, was particularly insistent that confronting the Serbs with their crimes would scuttle chances for a settlement.

This will go down as one of history's tragic miscalculations. It gave the Serbs a license to kill and did absolutely nothing to win their support for Lord Owen's own proposal, which they contemptuously repudiated. The carnage in Bosnia sullied the UN's reputation and denied Owen the plaudits he sought. In contrast, the architect of the Dayton agreement, Richard Holbrooke, viewed justice as an ally of peace rather than an obstacle. Cleverly exploiting the stigma that goes with war crimes and the international anger provoked by the Srebrenica massacres, he insisted that those indicted by the tribunal be excluded from Dayton. This barred Bosnian Serbs leaders Radovan Karadzic and Ratko Mladic, two mischief-makers who could have wrecked the agreement.

By forbidding indicted war criminals from standing in elections, the Dayton agreement also denies Mr. Karadzic a bully pulpit for his poisonous brand of ethic nationalism, and increases the chance of the elections producing a more moderate politician. But while Mr. Mladic and Karadzic were barred from Dayton, they are still openly flaunting their impunity in Bosnia. Their stature among the Bosnian Serbs grows each day - as does the threat to elections.

Why has IFOR not launched a lightning raid and whisked these two men off to The Hague? IFOR replies as the much-maligned Owen used to reply: that chasing down violators would threaten the prospects for peace. This seems plausible, even if it is ironic to find 60,000 heavily armed troops in the same bind as the lightly armed UN protection force. After IFOR recently flew two senior Serb officers to The Hague for questioning, the Bosnian Serb high command temporarily broke off relations with NATO and closed roads.

This showed that active pursuit of war criminals could impede freedom of movement - another cardinal principle of Dayton. The problem is that eventually this risk will be overshadowed by the far greater threat that Karadzic and Mladic pose to the elections. Sooner or later, IFOR may have to seize these men if Dayton is to survive.

The way out of this dilemma is to be found in The Hague, not in Bosnia. Under a compromise, it was recently agreed that IFOR will arrest only individuals sought by the tribunal. But IFOR is still unwilling to take the initiative, preferring to wait until suspects stumble into a roadblock.

IFOR is unlikely to change this policy - as it may well have to - until all sides are convinced that the tribunal is doing its job fairly and effectively. Thus the importance of Tadic's forthcoming trial.

The challenge facing the tribunal does not stem from the fact that only two suspects are in custody. It is quite possible that all those indicted will eventually submit to some kind of justice as a result of domestic upheavals or sheer persistence by the international community. After all, Nazi war criminals are still turning up in courts 50 years after the end of World War II. Rather, the challenge lies in ensuring that this all-important first trial succeeds in: 1) balancing the dictates of justice and the rights of the defendant; and 2) establishing a firm legal foundation for future trials. This was never totally achieved at Nuremberg, where some of the charges had no basis in international law.

The authorities in The Hague have done what they can. Tadic's trial was postponed six months to allow the defense more time, and defense funding was substantially increased. Seven victims of sexual abuse will be allowed to testify against Tadic in private, but their names will be known to the defense team. The case against Tadic, meanwhile, has been exhaustively prepared in several European countries.

If the tribunal lacks credibility after the Tadic trial, the fault will more likely lie in London, Beijing, and Moscow than in The Hague. While the Security Council established the tribunal, neither Britain, Russia, nor China has passed legislation that would allow the prosecutor to subpoena witnesses on their territory and extradite possible suspects to The Hague. None has agreed to provide prison space for those sentenced.

Britain's indifference is the most remarkable, given the large British contingent in Bosnia. On Oct. 14, 1994, Britain's highest law officer promised the tribunal the government would sign the order to cooperate with the prosecutor within a month. Eighteen months later, no action has been taken. It would not even require a vote in Parliament.

This strengthens the hand of the Serbian government, which has yet to cooperate in setting up a prosecutor's office in Belgrade. More ominously, it suggests that most members of the Security Council view the prosecution of war criminals as part of the exit strategy from Bosnia, rather than as the first essential step toward rebuilding respect for law. There could be no surer way of strengthening Karadzic and Mladic and weakening the Dayton agreement.