The Prosecutor v. Dusko Tadic: an appraisal of the first international war crimes trial since Nuremberg.

AuthorScharf, Michael P.
PositionConceptualizing Violence: Present and Future Developments in International Law
  1. INTRODUCTION

    During the twentieth century, four times as many civilians have been victims of war crimes and crimes against humanity than were soldiers killed in all the international wars combined.(1) After the Nazis exterminated 6 million Jews during the Holocaust, the world community proclaimed "never again." The victorious Allied powers set up an international tribunal at Nuremberg to prosecute the Nazi leaders for their monstrous deeds. There was hope that the legacy of Nuremberg would lead to the institutionalization of a judicial response to atrocities wherever and by whomever committed across the globe.

    Yet, the pledge of "never again" quickly became the reality of "again and again" as the world community failed to take action to bring those responsible to justice when 4 million people were murdered during Stalin's purges (1937-1963), 5 million were annihilated during China's Cultural Revolution (1966-1976), 2 million were butchered in Cambodia's killing fields (1975-1979), 30,000 disappeared during Argentina's Dirty War (1976-1983), 200,000 were massacred in East Timor (1975-1985), 750,000 were exterminated in Uganda (1971-1987), 100,000 Kurds were gassed in Iraq (1987-1988), and 75,000 peasants were slaughtered by death squads in El Salvador (1980-1992).(2) The United Nations (U.N.) High Commissioner for Human Rights summed up this state of affairs when he recently observed that "a person stands a better chance of being tried and judged for killing one human being than for killing 100,000."(3)

    In the summer of 1992, the world learned of the existence of Serbrun concentration camps in Bosnia-Herzegovina, where conditions were reminiscent of the Nazi-run camps of World War II.(4) Soon, daily reports of acts of unspeakable barbarity committed in the Balkans began to fill the pages of our newspapers.(5) The city of Sarajevo, which had recently impressed the world as host of the 1984 Winter Olympics, was transformed from a symbol of ethnic harmony into a bloody killing ground. For the first time since World War II, genocide had returned to Europe. The international outcry was deafening.

    Against great odds, the Yugoslavia War Crimes Tribunal was established on May 25, 1993.(6) Within a year and a half, the judges had been elected, a prosecutor and his staff appointed, a courtroom and detention center erected, rules of procedure promulgated, and the first indictments issued.(7) Among the first to be charged by the Tribunal was Dusko Tadic, a Bosnian Serb pub owner, karate instructor, and part-time traffic cop.(8) Tadic had recently moved to Germany, where he was taken into custody after being identified as the "Butcher of Omarska" by Bosnian refugees who had been interned in the infamous Serb-run Omarska concentration camp.(9) Tadic was charged with thirty-four counts of crimes against humanity and grave breaches of the Geneva Conventions, including the murder, rape and torture of Muslim men and women within and outside the Omarska camp.(10) Tadic's trial, the first before the new international war crimes tribunal, began on May 7, 1996.(11) Over 120 witnesses testified during the seven-month trial, which ended with closing arguments beginning on November 25.(12) As of the time of this writing, the Tribunal had not yet rendered a judgment in the case.

  2. An Assessment of the Tadic Trial

    Whether Tadic is acquitted, convicted, or, as is more likely to be the case, found guilty of only some charges, historians are apt to rank his trial among the most important of the century.(13) Unlike other renowned trials, such as the treason trials of Ethel and Julius Rosenberg, the Chicago Seven trial, the Watergate trials, the Rodney King case, and the O.J. Simpson trial, the importance of the Tadic case lies not in the status of the defendant nor the nature of his alleged crimes, but in the fact that the proceedings constituted an historic turning point for the world community.(14) Just as the Nuremberg trials launched the era of promulgation of international human rights standards fifty years ago, the Tadic trial has inaugurated a new age of human rights enforcement. As the Yugoslav Tribunal itself reflected in its first annual report:

    The United Nations, which over the years has accumulated an

    impressive corpus of international standards enjoining States and

    individuals to conduct themselves humanely, has now set up an

    institution to put those standards to the test, to transform them into

    living reality. A whole body of lofty, if remote, United Nations ideals

    will be brought to bear upon human beings .... Through the Tribunal,

    those imperatives will be turned from abstract tenets into inescapable

    commands.(15)

    At the opening session of the Yugoslav Tribunal in November 1993, U.N. Under-Secretary for Legal Affairs Carl-August Fleischhauer said that in establishing the Tribunal, the Security Council had exhibited a determination to achieve three goals: "First, to put an end to the crimes being committed in . . . the former Yugoslavia; second, to take effective measures to bring to justice the persons who are responsible for those crimes; and, third, to break the seemingly endless cycle of ethnic violence and retribution."(16) It is no overstatement to suggest that the success or failure of the Yugoslav Tribunal in meeting these goals of deterrence, justice and peace will decide the direction of human rights enforcement in the next century.

    1. The Deterrent Value of the Trial

      The trial of Dusko Tadic should be seen as an effort, not merely to bring an individual to justice but to understand the most barbarous butchery to blight Europe in fifty years. One of the tribunal's goals was to prevent a repetition of recent history. The record of the Tadic trial provides the authoritative and impartial account to which future historians may turn for truth, and future politicians for warning. While there are various means to achieve an historic record of abuses after a war, the most authoritative rendering is possible only through the crucible of a trial that accords full due process.(17)

      If, to paraphrase George Santayana, we are condemned to repeat our mistakes unless we learn the lessons of the past, then we must establish a reliable record of those mistakes.(18) The Chief Prosecutor at Nuremberg, Supreme Court Justice Robert Jackson, underscored the logic of this proposition when he reported to President Truman that one of the most important legacies of the Nuremberg trials following World War II was that they documented the Nazi atrocities "with such authenticity and in such detail that there can be no responsible denial of these crimes in the future and no tradition of martyrdom of the Nazi leaders can arise among informed people."(19) Similarly, the Tadic trial has generated a comprehensive record of the nature and extent of violations in the Balkans, the method by which they were planned and executed, the fate of individual victims, the individuals who gave the orders and those who carried them out. By carefully proving these facts one witness at a time in the face of vigilant cross-examination by distinguished defense counsel, the Tadic trial produced a definitive account that can endure the test of time and resist the forces of revisionism.

      The story that emerged from the Tadic trial was of a country whose people got swept up in the hurricane of ethnic nationalism. Witness after witness testified that there had been general ethnic harmony and a high rate of interfaith marriage in Bosnia before 1992.(20) The trial proved that the hatred that emerged in 1992 had been engineered, not innate. Serb-controlled television and radio spread ethnic hatred like an epidemic.(21) By way of comparison, one of the witnesses asked the judges to imagine what would happen if former Klu Klux Klan leader David Duke seized control of all the television and radio stations in America.(22)

      A half century after Nuremberg, historians like Daniel Jonah Goldhagen continue to address the question of how so many ordinary people could be so readily enlisted to participate in atrocities. Goldhagen's recent work, Hitler's Willing Executioners, hypothesizes that the Holocaust was a product of the German people's unique cultural predisposition toward "eliminationist antisemitism."(23) But the Tadic case suggests a different answer. Lead prosecutor Grant Niemann believes the trial proves that "human beings are universally capable of doing the things Tadic has done."(24) The most extraordinary hallmark of the Yugoslav carnage was its intimacy. Torturers knew their victims and had often grown up alongside them as neighbors and friends. Perhaps the real lesson of the Tadic trial is that given the right set of circumstances, many of us can become willing executioners. It is what the American historian Hannah Arendt, in her classic account of the Eichmann trial, referred to as the "banality of evil."(25) Three centuries earlier, the philosopher Thomas Hobbes hypothesized that there exists a thin line between civilization and barbarism.(26)

      What are the circumstances that can lure out this dark side of human nature and push us across that thin line? "That is one of the mysteries of the Yugoslav conflict," says Deputy Prosecutor Graham Blewitt.(27) "What transforms ordinary people into savages? The Tadic case gave us a glimpse of how provocation, incitement, and propaganda can raise hatred and fear to such an extent that ordinary people turn on their neighbors in a bloodthirsty way," Blewitt added.(28) Throw in an official sanction, a bit of coercion by persons in authority, pressure from assenting comrades, opportunities for personal gain, and a long history of ethnic tension, and you have the active ingredients of ethnic cleansing--Bosnian style.

      What is most shocking about the Balkan conflict is not that atrocities were committed, but that the rest of the world once again did so little to prevent them or bring them to an end. As Court TV anchor...

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