War crimes. Trial and error tribunal

The conviction of the Bosnian Serb, Dusan Tadic, by the International War Crimes Tribunal in the Hague on 7 May, represents one of the most significant advances in the development of human rights law in recent years.

The tribunal has pierced the corporate veil of the state and identified and tried a specific individual for alleged crimes against humanity. Australian, US, Dutch and UK lawyers are among those who have been involved in the two-year investigation and prosecution of Tadic.

The tribunal was set up by the United Nations Security Council to try individuals for breaches of the laws of war under the Hague and Geneva conventions. It is the first international tribunal to prosecute individuals for war crimes since the Nuremberg tribunal.

Tadic was found guilty of 11 out of 31 charges. He was found not guilty of the murder of Muslim prisoners in the notorious Serb camps in north west Bosnia in the summer of 1992, but was found guilty of torturing and beating inmates, and of participating in collective Serb persecution of civilians.

The trial raised significant concerns among human rights lawyers about the procedures and rules of evidence created by the tribunal specifically for the purposes of this prosecution.

Some witnesses and their families were granted complete anonymity by the three judges sitting on the tribunal, which significantly hindered the defence lawyers' freedom to exam the credibility of their testimony.

One witness, a Bosnian Serb, claimed to have worked as a guard alongside Tadic at one of the camps in which he was accused of committing atrocities. Defence lawyers revealed, however, that the witness, known as “witness L”, had lied about his background and, when confronted with the evidence, he claimed that the Bosnian security forces had forced him to give false testimony in order to ensure Tadic's conviction. The defence lawyers were able to obtain information discrediting witness L only by breaching an order of the tribunal forbidding them to interview members of his family.

Human rights lawyers were also concerned that the tribunal had to listen to evidence before deciding whether or not it would be declared inadmissible on the grounds of relevance or hearsay, or because it was prejudicial. It was only after the judges had heard the evidence, and possibly been influenced by it, that they gave a ruling.

Lawyers were equally concerned that Tadic was a relatively minor perpetrator of the atrocities in Bosnia in comparison with Ratko Ladic, the former Bosnian Serb commander, and Radovan Karadzic, the former political leader, neither of whom are in custody. If only a small number of people are tried, and those that are tried are war criminals on the scale of Tadic, the enforcement action of the tribunal is in danger of being seen as symbolic – enforcing the law only against minor rather than major offenders.

The tribunal has been given extensive enforcement powers. It is, however, reliant on Nato and the US to bring war criminals to trial, and has no power to force either to co-operate.

Although a proliferation of human rights treaties, treaty bodies and inter- and non-governmental organisations promoting human rights have been set up in the post WWII period, there has not been a proportionate development of enforcement mechanisms.

The decisions of treaty bodies like the UN Human Rights Committee are routinely ignored by states which have voluntarily ratified the treaties establishing them. This inability to enforce the decisions of treaty bodies is the most serious weakness of the UN human rights regime. Some practitioners would argue that it discredits the entire system.

The voluntary nature by which the treaties are ratified means that enforcement depends on publicity, diplomacy, persuasion and dialogue – all of which have little effect in promoting compliance among significant numbers of states who are parties.

It is in this context that the conviction of Tadic must be seen. After a hiatus of 50 years, the international community has again shown the will to punish violators of human rights. The question now is will the tribunal's work be sufficiently credible to pave the way for the establishment of a permanent international criminal court.