It's Not Too Late for Action Against War Crime

NEW YORK- A criminal justice system lacking in credibility and enforcement cannot provide justice to victims or deter future criminals. The same holds true for international humanitarian law - a system that, among other things, aims to protect innocent civilians from war crimes.

But that denial of justice is what is happening now.

Under the auspices of the International Criminal Tribunal for Yugoslavia, the trials of Dusan Tadic and Drazan Erdemovic, former soldiers in the Bosnian Serb army charged with crimes against humanity, have been completed. Tadic's verdict will be announced shortly. Erdemovic was found guilty and sentenced to 10 years' imprisonment last November.

In the months ahead, trials will get under way for the remaining five Bosnians and Croats in custody.

But then what? Of the 75 indicted as war criminals in the former Yugoslavia, seven have been arrested. The most important are still at large - the Bosnian Serb leader Radovan Karadzic, the Bosnian Serb army leader Ratko Mladic and Dario Kordic, the Bosnian Croat leader.

If there are no further meaningful arrests, the Yugoslav tribunal, which was set up by the UN Security Council in 1993, a year before it established a similar tribunal on Rwanda, will have been prevented from carrying out its mandate, and war crime victims will have been dealt another blow.

Also dealt a blow will be the credibility of the Security Council, whose binding resolutions about enforcing tribunal orders are being disobeyed equally by Serbia, Croatia, the Bosnian Serbs and the Bosnian Croats - all legally bound by these orders.

The Security Council has the power, through diplomatic and economic sanctions, to enforce the tribunal's orders. But it has not put the governments in the former Yugoslavia under real pressure to arrest those indicted.

At the same time, the Western powers who control NATO - Britain, France and the United States - have conspired to avoid encouraging their troops to arrest those indicted by the tribunal, despite clear jurisdiction and an implicit if not explicit obligation under the Dayton accord to do so.

All this bodes ill for the future of human rights, and particularly for the establishment of a permanent international criminal court, which is the best way to tell future war criminals that their evil deeds will no longer be tolerated. 'Me international community has put this project on the agenda, but has yet to hold a diplomatic conference to approve a treaty setting up such a court. There must be no further delay.

Meanwhile, the temporary tribunals for the former Yugoslavia and Rwanda continue their work. The Yugoslav tribunal has already made a significant contribution to the advancement of humanitarian law. The prohibition against applying international humanitarian laws to civil wars has been almost obliterated. And systematic, mass rape has, for the first time. been recognized as a war crime.

It would be nothing short of a tragedy if the Security Council, having established the temporary tribunals, were to fail to enforce their findings.

The message this would send out would be unmistakable - that alleged war - criminals may be censured by the international community, but no more than that. The cost of that message will be enormous - lost lives, suffering and extended postwar relief and peacekeeping missions.

It is not too late for Western nations, particularly the United States, to muster the political will to ensure the arrest of those indicted so that the Yugoslav tribunal can complete its mission. Hundreds of millions of lives might be saved in the new millennium, and the prospect of establishing a permanent international criminal tribunal - our best hope for justice - would be significantly improved.

The writer-, a justice of South Africa's Constitutional Court, was chief prosecutor of the International Criminal Tribunals on the former Yugoslavia and Rwanda until last October. He contributed this comment to The New York Times.