Helen Searls cross-examines the International Tribunal's judgement against the Bosnian Serb militiaman whom it found guilty of 'crimes against humanity'

Time to put the War Crimes Tribunal in the dock

Reaction to the verdict was mixed. Some, including the trial judges, saw it as a good day for human rights. Others have been more critical. On both sides of the Atlantic many complained the verdict was 'too little too late'. Within minutes of the verdict, Bosnia correspondent turned MP Martin Bell complained that only seven of the 74 people wanted for 'war crimes' in the former Yugoslavia are in custody. He urged Western governments to do more to bring the war criminals to justice.

Even the critics, however, agreed that the Tadic judgement was a 'historic landmark', the first judgement of an international war crimes tribunal since the Second World War. Inevitable comparisons were widely drawn with the famous military tribunals of Nuremberg and Tokyo. And as the world's first internationally convicted war criminal for 50 years, it was not long before Dusko Tadic was being discussed in the same breath as convicted Nazi war criminals, butchers like Herman Goering, Rudolph Hess or Klaus Barbie.

Nobody, it seemed, wanted to ask the obvious question thrown up by this case: why now? Why after 50 years is a UN body trying individuals for 'crimes against humanity' and 'violations of the laws and customs of war'? You could be forgiven for assuming that it had something to do with the uniquely brutal character of the Bosnian war. The conflict was, after all, frequently described in terms reminiscent of Nazi brutality. A reasonable assumption maybe, but a wrong one. In ploughing through the weighty judgement from The Hague one thing is clear. While terrible things happened on all sides in Bosnia, there is simply no comparison between Dusko Tadic and the Nazi butchers tried at Nuremberg.

Before the civil war broke out in Bosnia, Tadic was a cafe owner who practised karate in his spare time. During the war he became a reserve policeman in the Serbian-held sector of Bosnia, manning checkpoints in the Prijedor region. Tadic was indicted for numerous gruesome offences said to have been committed during that time. He faced charges for gang rape, sexual mutilation, abuse of prisoners, persecution, beatings and murder.

Throughout the trial the press made much of the charges against Tadic. Less widely publicised was the fact that the judges decided there was evidence to convict Tadic of only 11 of the total of 31 counts against him. What is more, all of the more serious specific charges of gang rape, sexual mutilation and murder were thrown out. In all he was found guilty of beating 14 Muslim men and of a 'crime against humanity' which is defined as 'persecution'. It is worth examining these charges a little more closely.

Tadic was convicted of involvement in violent beatings, and the court heard harrowing testimonies from men who suffered severe pain, fear and indignity. But however brutal such tales, when compared with the actions of the men who previously occupied the defendant's seat in a war crimes tribunal, Tadic's actions seem mundane and insignificant. In fact when you consider the fact that the Prijedor region was in the midst of a fierce and bloody conflict, it is hard to believe that Tadic's actions were in any way exceptional.

Tadic was convicted of war crimes because he was found to have inflicted cruel treatment on individuals who were not at the time taking part in hostilities; in other words, he was found guilty of beating male prisoners. Is he really the first combatant to have done that in the middle of a war over the past 50 years? A candid chat with British soldiers involved in wars against the Argentinians, Iraqis or Irish, or with US troops who fought in Vietnam, Grenada or Panama would surely reveal the brutal treatment of prisoners to be far more commonplace than the Tadic judgement implies.

Even when one examines the broader charge of 'persecution', it is still impossible to equate the actions of Dusko Tadic with those of convicted Nazi war criminals. The Tribunal decided that the charge of persecution could be levelled against those who: 'commit inhumane acts during armed conflict as part of a widespread and systematic attack on a civilian population that is intended for discriminatory reasons to inflict severe damage on the victims' physical integrity and human dignity'. For these purposes, discrimination is legally defined as differential treatment on the basis of religion, race or politics.

In legal-speak the crime sounds horrifying. But if we stop for a minute and examine what is actually being said it should become clear that there is a fundamental flaw in this definition. For a start it is quite wrong to equate discrimination on the basis of race and religion with differential treatment on the basis of politics. Fighting somebody with different political beliefs is not the same as racism. Every political party in the world is organised on the basis that you treat your political friends differently from your political foes. Political difference is also the basis for most wars.

The end result of equating political discrimination with racial discrimination is evident in the Tribunal's findings. The political struggle between different nationalist factions in Bosnia is redefined as an outburst of ethnic hatred between people of different religions, a race war that can be widely talked about in the same breath as the Nazi genocide against the Jews. The conflict in Bosnia is removed from any political context, and the reasons behind the war are lost.

The ruling on persecution is particularly problematic when applied to a situation like the Bosnian conflict which, the Tribunal had to agree, was a civil war. It is in the nature of a civil war that one section of society goes to war with another, and in that sense 'discriminates' against those who have a different idea of how and by whom the country should be run. What is more, in a civil war the distinction between civilians and combatants is always unclear. By definition the conflict takes on a civil character. In the light of this, it is difficult to see how anybody could take part in a civil war without being guilty of the crime against humanity defined as persecution by the International Tribunal.

The case against Tadic is a case in point. The trial chamber deduced that Tadic was guilty of this crime against humanity, not because of specific things he had done, but because of the politics that inspired his actions. Tadic was, in his own words, a 'trusted SDS member' (the Serbian nationalist party) who had been 'asked to run a crucial plebiscite in the Kozarac area'. The trial chamber therefore assumed that he had knowledge of and supported the plan for a Republika Srspka (a separate Serb state).

From these facts the trial chamber deduced that Tadic acted in a discriminatory fashion. His actions were specifically directed against the Muslim population in the region and inspired by his political belief in Serbian nationalism. In the eyes of the Tribunal such action constitutes the 'crime against humanity' of persecution. In other eyes, however, Tadic might look more like a fairly typical militiaman in the middle of any bloody civil war.

It is clearly not the actual scale of the violence which decides whether or not an act is considered to be a 'crime against humanity' by the UN and its Tribunal. Rather, the motive behind the act is all-important. In the case of Tadic it was his membership of a nationalist party of which the UN Security Council disapproved that turned his pretty unexceptional actions into a crime against humanity. In this ideological construction, the crime is defined not as an action, but as an idea. In short Tadic committed a thought crime by being a member of the SDS.

By labelling Tadic as guilty of 'persecution', the International Tribunal explicitly drew a parallel between Tadic's actions and those of the notorious 'Butcher of Lyons' Nazi Klaus Barbie - convicted in a French court in 1987 for his role in the organisation of the deaths of 77 000 French Jews, who were murdered or deported to death camps. Yet there is no sensible comparison between the two. Barbie was found guilty of persecuting Jews in occupied France because he was involved in the systematic annihilation of a race of people. Tadic on the other hand was probably just a slap happy militiaman. He may not have shown much sympathy for his Muslim victims, but his actions can hardly be judged in the same light as even a local organiser of the Nazi 'final solution' such as Barbie. The scale of suffering inflicted is incomparable. And unlike the Jews in Nazi Germany or in occupied France, Tadic's victims - Bosnian Muslims - were in armed conflict with the Bosnian Serbs.

The more one examines the Tadic trial, the more clear it becomes that there was nothing about his actions which merited comparison with the records of the convicted war criminals of the past, because there was nothing about the Bosnian war that merited its constant comparison to the Nazi Holocaust.

Which brings us back to our question: why did the UN Security Council choose this moment and this conflict, after 50 years, to set up a war crimes tribunal? To answer this it is necessary to look way beyond Bosnia. The International Tribunal only makes sense if it is seen as a product of the West's search for a righteous role in the post-Cold War world, rather than of any search for truth and justice in Bosnia.

If the Tribunal was simply concerned with justice then the UN would surely have paid more attention to its own legal procedures to ensure that justice was done. For a start, somebody could have seriously asked whether such an international tribunal has any legal basis on which to intervene around the war in the former Yugoslavia.

Under its own rules the UN cannot just walk into civil conflicts within its member states and lay down the law. The principle of non-intervention is still written into international law. During the Bosnian war, the UN Security Council justified setting up its Tribunal on the bogus basis that this was not a civil war, but an international conflict. But when The Hague judges came to examine the circumstances of the war they ruled, by a majority decision, that this assessment of the war was wrong. Under the rules of international law this was not an international conflict after all. It was a civil conflict within a nation state. The rules of the Geneva Convention do not apply in such situations, and there is no legal basis for outside intervention.

Not only are there questions to be answered about the legality of the Tribunal, there are also problems relating to the procedures used throughout the trial. Many things were permitted in the Tribunal that would never have been allowed in a court concerned to reach a just verdict.

Tadic had no jury to judge him. The trial judges appointed by the UN performed this function. The rules guiding the permissibility of evidence were flimsy. Things that fly in the face of natural justice, like hearsay evidence and anonymous witnesses, were permitted throughout the trial. Where is the justice if the accused cannot even face his accusers? Moreover, but for the investigative skills of the defence team, a trained liar - Witness 'L' (otherwise known as Dragan Opacic) - would have been accepted as a credible prosecution witness by the court.

As Thomas Deichmann explained in the article 'The Picture that Fooled the World', in February's LM magazine, Opacic finally admitted that the police in Sarajevo had schooled him for the witness box, but only when the defence team presented him with his father whom Opacic had claimed to be dead. Opacic originally told the Tribunal stories of gang rape, torture and murder at Trnopolje camp. Most famously, he drew a map of Trnopolje depicting a barbed wire fence surrounding the camp. Despite the lack of any corroborative evidence, Tadic's judges took in all of Opacic's fantastic tales. Even after the defence team exposed them as a pack of lies, the judges' statement finding Tadic guilty merely noted that a witness' evidence had been 'withdrawn'.

The actual guilt or innocence of Tadic was not the real issue in this farce of a trial. The larger significance of the Tribunal is that its very existence defines the way that the world sees a conflict like the Bosnian war. The war in Bosnia was prolonged and violent because Western governments interfered in the conflict; indeed the American-led recognition of the breakaway republic of Bosnia lit the touch-paper for the war to explode in the first place. Without the interference and backing of the West, the conflict in the former Yugoslavia may well have gone the way of other disputes in Eastern Europe.

The International War Crimes Tribunal turns the truth about Bosnia on its head. Through this court, acting on behalf of the Western-run UN Security Council, the West ceases to be the guilty party and becomes the judge and jury, passing sentence on the Serbs, Croats and Muslims and decreeing what is right and what is wrong in Bosnia. The Western nations behind the Tribunal can stand above it all as though the conflict had nothing to do with them. They are not just distanced from the horrors of the war, they are now recast in the role of righteous arbitrators about what took place there. The war is now the fault of evil militiamen driven by inexplicable ethnic hatreds.

The idea that somebody like Tadic is a war criminal lends legitimacy to the division between the civilised West and the rest. The implication of singling out certain acts as war 'crimes' is that there is somehow a civilised, non-criminal way of conducting warfare that 'we' in the West abide by. But where do you draw the line? What defines criminal behaviour in a war zone? The Tadic trial indicates that the criminals are simply the ones of whom the Western authorities disapprove.

The Tadic trial is important because it seals in legal history the recasting of the Bosnian war as a battle of good against evil. It lends weight to those who would have us believe that wars are fought between demons and saints. Most dangerously it bolsters the view that the Western states - the representatives of civilisation in this fairy tale - have a moral obligation to get involved and impose peace on the warring tribes 'over there'. As Martin Bell's call for greater intervention to round up more criminals indicates, the end result of the exercise is to legitimise more Western interference across the globe, so strengthening the domination of a handful of great powers over the rest of the world. The West can effectively build new empires of influence, under the guise of standing up for good against evil.

The portrayal of a war like the Bosnian contest in such simplistic terms is, however, dishonest and dangerous. It is dishonest because it is based on the misrepresentation of complex historical events. And it is dangerous because it strengthens the hand of the very forces that stirred up the conflict in the first place. In this respect the Tadic trial underlines the importance of LM's own battle against ITN. By challenging the ITN 'Picture that Fooled the World' - an image of Trnopolje camp which did so much to demonise one side of the conflict as evil - LM is not simply putting the record straight. Rather we are demonstrating that the real facts of the Bosnian war often jar with the cosy, fairy-tale version of events.

Civil war in Sarajevo doesn't make these Serbs Nazis

Kangaroo court?
Dusko Tadic (far right) consults with his lawyer through glass under the watchful eye of a UN jailer