Atone and Move Forward
- Balkan Justice: The Story behind the First International War Crimes Trial since Nuremberg by Michael Scharf
Carolina, 340 pp, $28.00, October 1997, ISBN 0 89089 919 3
- The Tenth Circle of Hell: A Memoir of Life in the Death Camps of Bosnia by Rezak Hukanovic
Little, Brown, 164 pp, £14.99, May 1997, ISBN 0 316 63955 9
- Burn This House: The Making and Unmaking of Yugoslavia edited by Jasminka Udovicki and James Ridgeway
Duke, 326 pp, $49.95, November 1997, ISBN 0 8223 1997 7
- A Safe Area: Srebrenica, Europe’s Worst Massacre since the Second World War by David Rohde
Simon and Schuster, 440 pp, £8.99, June 1997, ISBN 0 671 00499 9
- Triumph of the Lack of Will: International Diplomacy and the Yugoslav War by James Gow
Hurst, 343 pp, £14.95, May 1997, ISBN 1 85065 208 2
In a speech at the London School of Economics in June this year, Antonio Caesese, the President of the International Criminal Tribunal for the Former Yugoslavia, spoke about the century’s greatest forgotten massacre and the role of the ‘Justice Commandos of the Armenian Genocide’ in drawing it to the world’s attention. Though provision had been made in the Treaty of Sèvres in 1920 to bring the Turkish-perpetrators to trial, the impetus soon weakened and in the place of justice came punishment by the Commandos, who sought out and murdered leaders of the Young Turks in Germany in 1921-22. The aim of the Commandos – and this was Caesese’s point – was not primarily revenge. Their most famous member, Soghomon Tehlirian, surrendered voluntarily to the police, hoping that a public trial would make the world more aware of the massacre. Tehlirian was tried, and acquitted, by a Berlin court – but even so the story of the slaughter all but disappeared from the historical record. Antonio Caesese recalled Hitler’s reported appeal to his worried colleagues when they doubted they could get away with a ‘final solution’: ‘After all, who today speaks of the annihilation of the Armenians?’
The International Tribunal which Caesese chairs is not, as some claim, facilitating revenge, but, on the contrary, trying to forestall acts of revenge by punishing the guilty in Bosnia. Much more is at stake in The Hague than the future of Bosnia, however. The Tribunal is the first, tentative step towards a fundamental change in the way the world deals with the most elementary human rights violations. The two Tribunals currently operating under the auspices of the UN, in The Hague and Arusha (for Rwanda), are an attempt to show that achieving justice for the victims of war crimes, of crimes against humanity and of massive political persecution is not simply a matter of satisfying the grievances of individual victims. By stating that they will pursue the perpetrators of such acts to the ends of the earth, the Tribunals are saying that impunity – whether a result of amnesty or amnesia – generates unacceptable fear and a sense of betrayal not just in the victims but in all those around them. If these experimental Tribunals succeed, they will mark a decisive step towards the creation of a permanent International Criminal Court, which could be a standing caution to politicians tempted by a policy of mass criminality.
The story of the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY), as told by Michael Scharf, a one-time US appointee at the UN and a Tribunal insider, is full of unexpected and telling ironies. Not the least of these concerns the involvement of the US Administration, which had previously been so worried about the possibility of having to hand over its own officials to international jurisdiction, for acts such as the bombing of Tripoli, or the invasions of Panama and Grenada, that it had blocked the quite successful efforts of smaller countries like Trinidad (who were attempting to deal with their narcotics problem) to move towards the founding of an International Criminal Court. The US, having little need for the UN, is sceptical of its institutions, unlike Britain and France, who, by promoting the UN’s role, contrive to emphasise their own importance on the world stage. In relation to Yugoslavia, however, the idea of a UN Tribunal allowed the US to appear to be throwing itself into the fray against the warmongers without having to commit a single person on the ground. The end result is a paradoxical situation whereby the UN, the body most responsible for having made the international community look spineless in the face of Serb and Croat terror, has produced a subsidiary institution which may be the most important legacy of the war.
In one way this is history repeating itself, for in 1945 it was US pressure that led to the creation of the International Military Tribunal which sat at Nuremberg. During the Yalta Conference, Stalin proposed a toast ‘to the quickest possible justice for all German war criminals’: ‘I drink to the justice of the firing squad ... Fifty thousand must be shot.’ At that stage Churchill shared Stalin’s sentiments and was prepared to see the Nazi leaders given summary justice. It was the arrival at the White House of Roosevelt’s successor, Harry Truman, that put all such plans on hold. Truman was determined that there should be a real, not a pre-determined, trial, one containing that element of risk which is indispensable if the fairness of criminal proceedings is to be established.
The precedent of Nuremberg was evoked by Madeleine Albright at the meeting of the UN Security Council in February 1993 which decided to establish an international Tribunal. She tried to lay to rest any ambivalent associations: ‘this will be no victor’s Tribunal. The only victor that will prevail in this endeavour will be the truth.’ Fine words, but little practical help to the team working on the original statute for the ICTY. They knew very well that while justice was undoubtedly done by the representatives of the Allies in 1945, it was not always in compliance with the law or legal standards of the time.
It is true, as Ann and John Tusa argue in their definitive study of the Nuremberg trials, that the court was deliberately constituted as a military tribunal and was therefore exempt from the rigorous conditions of a civil court. There can be little excuse, however, for its adoption of a mere 11 rules of procedure, all of which the Tribunal’s Statute placed beyond judicial challenge. As a result, the defendants were not allowed to question the decision by which they were forbidden access to the prosecution’s vast archive of official papers, nor challenge the ruling whereby they were denied the tu quo-que defence (that in some cases the Allies had committed similar war crimes). There was no higher court to which, if convicted, they would have a right of appeal and, as several later discovered, if acquitted they were not protected against a re-trial by their own compatriots in a lower court. These failings together gave substance to the otherwise shallow accusation of ‘victors’ justice’, which gained even more force when both the trials and the de-Nazification process were halted after the break with Stalin and it became expedient to cultivate the loyalty of the German middle class. If the whole point of Nuremberg was to institute the rule of law after 12 years of lawlessness, then to stop the prosecution of Nazi criminals for shortterm political gain was to undermine the lesson so expensively being taught to the German people – that in a democratic society the autonomy of the legal process provides a defence against the whim or convenience of state power.
To argue today, however, as they do, above all, in Serbia and Croatia, that ICTY represents the more dubious aspects of the Nuremberg precedent and is a mere arm of American global domination is misleading. It is doubtless unfair that international criminal law is being enforced in the cases of the former Yugoslavia and Rwanda and not in those of Chechnya or Tibet. Such selectivity damages the claim that the Tribunals embody the principle of universal justice. And it is hardly ideal that their work can be halted without notice on the orders of the Security Council, for this means that the courts are dependent on an executive power.
Yet such criticism misses the point. What matters, in assessing the work of the Tribunal, is its procedure and practice. It is here that those who drafted its rules of evidence and procedure have been able to demonstrate that the lessons of Nuremberg have been learned. Above all, mindful of the illegitimate immunity of the Nuremberg Military Tribunal from judicial review, they have provided a number of mechanisms at The Hague for challenging established procedure. Success in this can be measured both in the constant refining of the rules of procedure – currently in their 11th edition in less than two years – and in the extensive body of legal commentary built up around these decisions, now published in a uniquely informative text, edited by President Caesese’s personal assistant, John Jones, as The Practice of the ICTY. Around these detailed decisions international humanitarian law is being written for the next century. Whether the Geneva Conventions will be extended to apply to civil wars, whether international courts can try ethnic persecution if it is not carried out in the context of a war, what the legal definition of persecution is, the context in which an individual criminal act may count as a crime against humanity – these fundamental questions, and a host of other, technical points that govern the way such courts should be conducted, are being decided today in The Hague.
Their basic justification must be that they offer a form of justice superior to that available in lower courts. Michael Scharf’s book is primarily, and successfully, devoted to defending the Tribunal’s record in its first case, brought against the former Bosnian Serb traffic policeman, Dusko Tadic, a.k.a. Dule. Tadic was accused of a number of atrocities against Muslim internees in two Serb concentration camps, at Omarska and Trnopolje, in the first months of the war. The Tadic case hardly met the Tusas’ requirement that any ‘new Nuremberg’ should start by trying the leaders, however difficult that might be to bring about.
Tadic had originally been arrested in Germany, where he was recognised in the street by one of his victims. By the time the German court was ready to proceed against him, the Tribunal in The Hague had itself collected evidence linking him to war crimes. Despite the advanced state of the German prosecution, Richard Goldstone, who had recently been given leave from the South African Truth and Reconciliation Commission to head the Prosecutor’s office in The Hague, was determined that the Tribunal should not let the only current case of an alleged war criminal pass through a lower, domestic court, which would have been tantamount to admitting that the Tribunal was neither ready nor able to provide justice of the highest standard. Goldstone suggested that the trial of this local leader should be part of a deliberate strategy, by which the court would follow its accusations up the chain of command. But as the preparations for Tadic’s trial dragged on, and no bigger cases were brought, Gold-stone found it increasingly difficult to persuade the media that in Tadic he was prosecuting someone of significance. After the seven-month trial, in which the world soon lost interest, we now hear less of this post hoc rationalisation. Indeed, in the corridors of the Tribunal, I was told in no uncertain terms of the court’s awareness of the danger that endless Tadic-type trials might represent for its continued functioning.
I have now spent some time reading through the record of the trial and that anxiety seems to me mistaken. Although Tadic was convicted on only 11 out of 34 counts, and the prosecution failed to prove its case on any of the major charges, the hearings were, as Scharf painstakingly demonstrates, by no means an embarrassment for the Tribunal. The case in fact led the judges closer to the heart of their wider enquiry into the nature of the War of Yugoslav Dissolution, precisely because it concerned someone commonly described as ‘small fry’ – once, more colourfully, Tadic was referred to as a ‘monstrous tadpole in a pool of sharks’. We should not underestimate the importance of men like Tadic in the Bosnian genocide. To do so is to fall into the same trap that made it hard for outsiders to believe that genocide was taking place at all.
The misapprehension derives from taking a limited view of genocide, for which the only model is the Nazi concentration camps. Since Milosevic and Karadzic’s methods lacked any centralised, bureaucratic impulse comparable to that of the Holocaust, most observers could not and did not believe that the Serbs intended to destroy the Muslim narod (nation) in Bosnia. But, in what one anthropologist has termed ‘a very modern war’, a decentralised and non-bureaucratic violence did not imply a lack of organisation – simply a different sort of organisation, suitable for removing a population from a different sort of society. Elements of bureaucracy were to be found even so. In Omarska, where Tadic operated, the prisoners were divided up on arrival according to lists drawn up by committees at an earlier stage. But for the most part the rule, as described in a powerful memoir by an inmate of Omarska, Rezak Hukanovic, was that ‘anyone could give a Serb soldier in town fifty bucks and a piece of paper with the name of a prisoner on it, and rest assured that the prisoner wouldn’t make it through to the next morning.’ This was an orchestration of petty revenge, of spite, of people killing their creditors, for instance – precisely the kind of thing Tadic was accused of.
In Dusko Tadic, the court therefore had an exemplary figure – an embodiment of those who perpetrated, and in a sense directed, ethnic cleansing, which worked by a deliberate use of neighbour to evict neighbour. But because neighbourhood was so important in Bosnian social life, and neighbours were, symbolically and often in practice, one’s best friends, the people you turned to in moments of crisis, to force neighbours, real or metaphorical, to drive each other from their homes was to render the neighbourhood uninhabitable for ever. Once you look at the violence in this way, and notice that so much of it occurred in people’s homes, in schools, in the familiar environment of everyday life, it no longer seems mindless, chaotic or medieval. In this war, people’s memories of living together were being effaced, and the fabric of social life, which had held Muslims, Croats and Serbs together, was being torn apart.
At no point in the trial did any of the witnesses articulate such a panoramic point of view, though one can feel the judges searching for it when they hold a witness briefly at the end of his testimony, reassure themselves that he had lived in Tadic’s hometown of Kozarac all his life and then ask him to explain how neighbour could have turned on neighbour. Of course, the man could not say why: he mumbled something about madness descending like a fog. Ethnic cleansing worked by destroying the basis of trust on which Bosnian society had been built. Without trust, the register of people’s voices changes. The witnesses who speak in the court transcripts seem to have fallen into the same flattened, detached tone that Hukanovic adopts in his memoir of Omarska, where he writes of his own experience in the third person. Sometimes, when provoked, a witness will exclaim, ‘I am quite willing to take Dusko Tadic’s place and for him to sit here, if I have told a single lie,’ or when accused of concocting their stories from news reports, ‘I tell you that the horror of Omarska is something I do not follow in the news.’
The Tadic trial touched on the fundamental problem in prosecuting war crimes on the basis of a procedure which in normal criminal trials is relatively simple: identification by witnesses. If, for instance, you try to find the followers of Arkan or Seselj who operated as murder squads in the Bosnian war, the chances of a survivor or erstwhile victim being able to identify a member of a death squad are close to zero, because these squads went from town to town and spent 24 or 72 hours at work there before moving on. The victims or bystanders had never seen them before and never saw them again. And in situations where the perpetrators were known to their victims, one way to survive in the camps was not to see, or at least not to be seen seeing, but to look at the ground in order not to be noticed. One of the more chilling moments in Hukanovic’s book comes when a friend confides that he will die that night for he has seen a guard arrive in the camp against whom he could bear fatal witness. The criminals knew they had to cover their tracks.
Tadic made a number of mistakes but none more serious than that of basing his defence on an implausible alibi. He could simply have accepted that he was present in the camps from time to time but never active, and was now the victim of a misplaced hate campaign. Instead he tried to prove that he had never set foot in or near the Omarska camp. As a consequence, Tadic’s counsel had to challenge every one of the forty-plus witnesses who claimed to have seen him in Omarska or Trnopolje, each of the five who said they personally were beaten by him, as well as those who saw him or heard his voice among a group of Serbs who forced one Muslim internee to bite off the testicle of another. He claimed to have been a sort of ‘deserter’ in the early stages of the war: when it was discovered that on his return to Kozarac a few weeks later, he was put in charge of re-allocating houses in the area, and made president of the local board of Karadzic’s party, the SDS, his credibility was shattered. His version of himself as ‘apolitical’ and ‘non-nationalist’ looked like a transparent lie.
Considering the enormous potential for slip-ups during this first trial, the prosecution and the judges probably feel relieved. Channel 4’s Dispatches spent nearly two hours pointing out its inadequacies, but all they could finally report was that the prosecution found that one of its key witnesses was a liar. Having made their own investigations, the prosecution withdrew the witness’s evidence: hardly the sort of thing of which mistrials are made.
It may have been fortunate that the Tribunal was able to cut its teeth on a relatively simple case of identification and witness credibility. Tihomir Blaskic, whose case is now being heard, is a more prominent figure and, given the nature of the charges against him, proving his criminal involvement is unlikely to be easy. General Blaskic was a ‘big fish’, a career officer sent into central Bosnia in 1993 to mop up Muslim resistance to the Croat puppet state of Herzeg-Bosna. Blaskic is accused either of having organised a massacre of Muslim villagers between 16 and 20 April 1993 at Ahmici, or, as commander of the Croat forces in the area, of having reason to know a massacre was being planned and of failing to prevent it, or, if he had no foreknowledge, of failing to punish those responsible. These charges hark back to the Tokyo trials, which were held in parallel with the Nuremberg process. In the course of the trials, Yamashita Tomoyuki was controversially convicted of encouraging an atmosphere of such lawlessness among his troops in the Philippines that he was responsible for their running amok. It also evokes the trial of the Serb Chetnik leader Draza Mihailovic in 1946, who claimed in relation to massacres of Muslims in 1942 that though he had wanted regions ‘cleared up’, he ‘never thought [my soldiers] would clear them up this way’. Command responsibility was a hard charge to prove at the end of World War Two. It is harder still for Louise Arbour’s prosecution team today, with its lack of archives and some of its best potential witnesses afraid of their compatriots.
In Britain, the Blaskic trial will shortly become news again, because the hub of the prosecution’s case concerns the village made famous by the extraordinary display of anger on the part of Colonel Bob Stewart and Jean-Pierre Thébault, the European Community Monitoring Mission’s Ambassador, when, live on camera, they stumbled across the evidence of a terrible massacre. On the road outside Ahmici, Stewart raged at the impudence of some jumped-up Croat trooper trying to block his path. After a year of watching one blue-helmeted appeaser follow another, of seeing the endlessly credulous Yasushi Akashi assuring us that he now had a ‘cast-iron’ guarantee that the well-armed Serb or Croat ethnic cleansers would lay off, here at last was a soldier who knew his job. Few who saw Stewart that day will forget how he bellowed into the window of the car as the cowardly young man hid his face: ‘I am the United Nations.’ For a moment, it seemed as if someone in the UN might stand up for justice. And as the object of Stewart’s rage fled the scene, one saw how these bandits, who had so successfully built themselves up in the eyes of impressionable journalists as hardy fighters of the Balkan hills, might, with only a small threat of force, be persuaded to back down.
It is a long way, however, from the moral certainties that a good soldier carries with him when keeping the peace to proving responsibility for a massacre in court; such a long way that it seems Stewart may be called to testify by either the prosecution, or the defence, or both. Blaskic’s lawyer will no doubt argue that when his client was appointed commander of Central Bosnia in spring 1992, he found a self-styled citizens’ army, lacking both technical equipment and discipline. He is fond of telling the story of a man who sold his tractor and bought an anti-aircraft gun, which he used as he pleased from his front garden. What the former Chief Prosecutor of Paris, Judge Jorda, will make of this remains to be seen.
Yet the progress of the trial is being hampered, as Tadic’s was, by two procedural difficulties that derive from the terms on which the Tribunal was established within the UN. The first concerns the classification of the war: was it an internal or an international conflict? During the drafting of the Tribunal’s Statute, Scharf says it was proposed that, for the purpose of the Tribunal, the war ‘on or after 25 June 1991 shall be deemed of an international character’. This was done to ensure that all the Geneva Conventions and additional protocols should be applicable, not just the weaker ones concerning ‘internal conflicts’. But the Secretary General removed this clause. Since on numerous occasions military leaders on all sides had claimed to be abiding by the Geneva Conventions, and since Yugoslavia had signed a treaty extending these to all military conflicts, Boutros Boutros Ghali’s intervention has cost the Tribunal pointless legal grief and precious resources. In each trial where the prosecution brings charges of war crimes under the Geneva Convention the judges have to determine whether the relevant acts were committed in a context tantamount to that of an international conflict.
The second difficulty derives from the hybrid nature of the court procedure. As at Nuremberg, it operates a strange amalgam of common law and Continental practice, and just as in 1946 Robert Jackson, who led the US legal team, was incapable of transcending his belief that the American system alone guarantees a fair trial, so in The Hague the American lawyers seem strangely unable to adapt to those elements of Continental practice which have been adopted. In the Anglo-American adversarial system it is largely the barristers who determine the day-to-day course of the trial, with the judge safeguarding the interests of both the defendant and the jury. On the Continent, the judge directs proceedings, obliging witnesses to confront each other or the accused, or to return to the scene of the crime and reconstruct events there. The comment of a prominent Anglo-American jurist, who said that were he innocent he would rather be tried in Europe, and in Britain or America if guilty, suggests that humility might better be the order of the day at The Hague. In theory it ought to be possible to concoct a hybrid system, but at The Hague the combination has not always been happy. For reasons to do with cost and with the impossibility of finding a panel of jurors chosen at random in the former Yugoslavia, matters both of fact and of law are tried by the judges. At the same time, we have seen an adversarial style of court histrionics more suited to the presentation of cases before a jury. In the Continental system the judges can make their own enquiries and hear evidence from witnesses. Only a chosen few are summoned for cross-examination in court – those whose evidence is most damaging to one side or the other. In the current hybrid system, however, the lawyers behave as if they were trying to convince a non-existent jury, a procedure which must infuriate the judges.
One very good reason for adopting a Continental approach has to do with the desirability of formal confrontation between a survivor of an atrocity and its perpetrators – or those who collaborated in it. A process of this kind can satisfy the most rudimentary need. In 1996 I interviewed a survivor of the Ahmici massacre three years earlier. Fatima Ahmici, who lost her son and husband to Croat murder squads and has since moved away, was determined that the killers should be punished. But her greatest wish was for knowledge – not the knowledge mediated by newspaper articles and court reports, but first-hand, personal knowledge. ‘I would like to see that killer now,’ she told me. ‘I saw him then – they were in my house. I would ask him: “How did you have the heart and soul to kill him? His children were watching when you killed him. How come you did not take pity on his children or wife?” ’ If such a confrontation were not possible, she said that she would still want to question her neighbours. ‘The killers were not complete strangers,’ she explained. ‘My next-door neighbour Drago must know who killed my son. He should say who the killers were. I would just like to know who killed my son before I die. That is my wish.’
Mrs Ahmici was warned by her ‘first neighbour’ the day before the attack that something terrible was coming, but when it did come, no one did anything to save her son’s life, though he was a popular musician who played at all the local weddings. Now Mrs Ahmici is afraid to contact the neighbours herself. As for moving back to Ahmici, she says she is frightened for her grandchildren: what might the children of her neighbours do to them one day? It should be possible, and would be quite appropriate, for a judge of the Tribunal to bring Mrs Ahmici together with her former neighbours and to witness the confrontation she seeks as part of the investigation. In the process, the Tribunal would be achieving one of its primary aims: helping to rebuild trust among those who, whether they like it or not, will continue to live alongside each other. In Bosnia, as Jasminka Udovicki argues in her thorough and very readable introduction to the recent history of the region, interdependence is the key. While the main mineral deposits are in what is now the territory of the Bosnian-Croat Federation, the fuel to operate power plants comes from the Serbian enclave. The latter holds nearly all the iron deposits, yet the iron production plant is in Federation land. Banja Ljuka is the self-proclaimed ‘capital’ of Republika Srpska but gets its electricity from the Bosnian Croats; and so on.
War crimes trials leave behind a record of fact and of independent judgment which can be investigated by those who come later, so providing documentation against the falsification of history, both the sort handed out in the Covent Garden piazza by the Living Marxism crowd, who want us to believe that the camps of Omarska, Trnopolje and elsewhere are inventions of the world capitalist conspiracy against ‘socialist Yugoslavia’; and, more important, the sort embodied by men like Ratko Mladic, leader of the Bosnian Serb forces. David Rohde tells of an occasion when Mladic dropped in on his detainees from Srebrenica. At this time, his troops, aided by irregulars who had crossed into Bosnia from Serbia, were killing the brothers and husbands of the women he had come to lecture. With a Serb camera crew filming, Mladic told these women: ‘On the eve of yet another great Serbian holiday, we present this city to the Serbian people as a gift. Finally, after the rebellion of the Dahijas, the time has come to take revenge on the Turks in this region.’ Rohde points out that the rebellion of the Serb ‘Dahijas’ was crushed by Ottoman troops in 1804. One hundred and ninety-one years later, and nearly ninety since the last Turk left, Mladic said he was taking revenge. It would be entirely within the spirit of a war crimes trial for a court of law to consider Mladic’s actions and, by insisting on a very different interpretation of his activities, provide a real lesson in history.
During the Nuremberg hearings, in February 1946, a survey of public opinion was conducted in Frankfurt, from which the Allies were surprised to find that 80 per cent of those questioned thought the trials were being conducted fairly and 70 per cent thought all the defendants were guilty. After Nuremberg came the so-called ‘German on German’ trials, in which German courts prosecuted lower-ranking officials, notably those responsible for running the Auschwitz camps. To some extent these trials were conceived as correctives to the mistakes of Nuremberg, but it is hard to imagine them having taken place at all if the Allies had merely sought truth, reconciliation and amnesty in the wake of the war. It could be argued that today, as Germany comes to terms with the legacy of the GDR, it is reaping the benefits of having dealt so well with its Nazi past. In the existence of the so-called Gauck Ministry, which is responsible for opening up the records of the former State Security Service (Stasi) and whose practice is, on the whole, exemplary, the Germans have shown the other East European countries what can be done in a civilised society to acknowledge, punish, atone and move forward.
How far one believes that the trials in The Hague will enable the reconstruction of Bosnia over the next generation depends in part on what one believes caused the former Yugoslavia to break up. James Gow, who was an early, and at that time isolated, advocate of a Tribunal, provides a good account of the bad timing, bad judgment, disunity and, crucially, lack of political will which weakened international diplomacy and allowed the crisis to turn into a war. Gow combines insight into the institutional obstacles to the formation of a coherent policy with a strong sense that it didn’t really matter what understanding the great powers had of the Yugoslav conflict since they were all guided by an overwhelming commitment not to use force.
Gow’s argument is a powerful reminder that, whatever the idealism surrounding the Tribunal, it is in the end a political institution, governed by a selective logic that suits those in power. It represents a remarkable innovation in international law because it deals with individual criminal responsibility and is authoritarian in its mode of operation. It is able to be so first because it was constituted under Chapter VII of the UN Charter, which alone allows the UN to override state sovereignty. And second, because, as Louise Arbour has pointed out, it has not tried to enforce what one might call the ‘luxurious’ human rights – the right to work, to live free of discrimination, to vote – but only the most basic right of all: protection from the forces of the state at a time of armed conflict. It would be naive to think, however, that such a tribunal could become permanent without challenging powerful interests. Would the US, Russia or China, let alone Britain, France and Germany, really submit to the jurisdiction of an independent world judiciary? The Hague Tribunal, and its Rwandan equivalent, are not pure examples of the rule of law, or the search for universal justice.
Does this mean we should abandon such hope as they do offer? If law is to be effective it has to be invoked and applied with consistency; otherwise it becomes another tool of power. This is the danger in Bosnia today, as was strikingly revealed last July when Tadic’s boss, Milan Kovacevic, was detained by IFOR troops. Senad Pecanin, the editor of the independent Sarajevo journal, Dani, wrote an article suggesting that the arrest was motivated by a new British plot to undermine a Bosnian settlement. His reason was that Nato could have arrested Kovacevic months earlier but waited until a split had emerged within the Bosnian Serb leadership. This provocative arrest, Pecanin suggested, would now strengthen Karadzic’s hand against his most powerful opponent, Biljiana Plavsic. Three months later, given the other ways in which the Tribunal’s authority has grown, it is recognised throughout Bosnia that this arrest, and the killing on the same day of another indicted Bosnian Serb leader while violently resisting arrest, was only the beginning of a much broader policy of using Nato troops to assist the Tribunal. But if, in July, the best of Bosnian society thought otherwise, we have only ourselves to blame.