By Madeline Schiesser
Impunity Watch Reporter, Europe
THE HAGUE, Netherlands – In May, the International Criminal Tribunal for the former Yugoslavia (ICTY) will mark its 20th anniversary. During two decades, the tribunal issued indictments against 161 persons for crimes committed against tens of thousands of victims in the former Yugoslavia. However, as this benchmark approaches, activists and diplomats alike reflect on the achievements and limitations of the ICTY.
Created by UN Security Council resolution in May 1993, the ICTY was the first international court since the Nuremberg and Tokyo war crimes trials at the end of World War II.
Since then, the court has now begun to wind down, with only three cases left on its docket, and no new indictments since 2004. Its most recent high profile indictee, Former Yugoslav President Slobodan Milosevic, died in 2006 in custody before a verdict was reached.
A look back at the ICTY has been sparked by a controversial debate on the ICTY held by the U.N. General Assembly earlier this month after former Serbian Foreign Minister Vuk Jeremic, currently president of the General Assembly, called for the debate. The discussions, characterized as one-sided, prompted a walkout by the U.S. delegation, while senior Serbian officials used the debate to bring allegations that the court was essentially an “inquisition” directed against Serbia.
Jeremic said in opening the session, “The paramount question is how international criminal justice can help reconcile former adversaries in post-conflict, transitioning societies”
However, Judge Theodor Meron, president of the ICTY, had previously criticized the planed debate, saying it “pose[d] questions in terms of fundamental respect for the rule of law,” and that “It is not a [debate] in which my participation would make any significant contribution to the norms which I hold dear.”
The ICTY was also criticized in November, when it acquitted on appeal Croatian ex-Generals Ante Gotovina and Mladen Markač, who had been sentenced to jail for significantly contributing to a Joint Criminal Enterprise through their roles in a 1995 offensive to drive Serbian rebels out of the Krajina region with unlawful artillery attacks on four towns. However, the appeals chamber found the evidence insufficient to show the artillery attacks were unlawful and therefore overturned the convictions and ordered the men’s release, prompting angry reactions.
Richard Dicker, director of the International Justice Program at Human Rights Watch, explains the desirability of reviewing the ICTY to set the record straight: “There’s a need for a review because we are approaching the 20th anniversary of the establishment of the tribunal,” he says. “It’s essential and responsible to do a careful, thoughtful, critical review. Everyone who is committed to bringing justice for these crimes — to seeing victims get redress — wants the system to work better.”
One of the main criticisms of the court has been the slow proceedings. Dicker suggests future war crimes trials should look into issues of expediency while still respecting the rights of the accused to a fair trial. Phillippe Sands, a professor of law at University College London and a lawyer involved in the international courts, says the ICTY’s early delays reflected that the court was in “new, untried, untested waters.” “There is a broad recognition that in some of the cases, the initial charges — both in terms of investigation and actual prosecution — were probably too great, too large, which meant that the trials ran on. The judges reacted, and I think they sent certainly signals to the prosecutor’s office to be more narrowly focused,” Sands explains.
Another criticism has been the handling of evidence and lengthy testimony by the court. For example, in the Milosevic case, the defense was permitted to call an enormous number of witnesses, dragging the trial out for years prior to Milosevic’s death.
The ICTY also needed to merge criminal doctrine from divergent legal systems. “For example, the treatment of evidence is very different in the civil-law countries like France, or Italy, or Germany on the one hand, than it is in a common-law country like the United Kingdom, or the United States, or South Africa, or India. So you’ve got a sort of coming together that inevitably slows things down,” Sands said.
It also took time for the ICTY to truly appreciate the needs of justice and reconciliation of the victims and diverse peoples of the Balkans. Dicker explained that, “The tribunal did not have an outreach program until close to the year 2000. That effort to explain what it was doing was never funded out of the UN budget, but in fact, was funded by voluntary contributions from states and private individuals.” And although there were high hopes that the court would foster reconciliation, Geraldine Mattioli-Zeltener, the advocacy director in the International Justice Program of Human Rights Watch concedes that “Reconciliation is a very tall order for a court of justice.” Unfortunately, rulings by the ICTY may have created more fractioning between the Serbs, Bosnians, Croatians, and Kosovar Albanians than reconciliation.
Interestingly, an area in which the ICTY showed success was in overcoming the language barrier— often one of international law’s greatest difficulties. Translation in the ICTY remains faster than in the newer International Criminal Court, whose language must change with each case, because the ICTY mostly works in three languages: French and English—the two working languages of the United Nations—and “BCS”— Bosnian/Croatian/Serbian. (Note, when addressing crimes committed in Kosovo and Macedonia, the court temporarily will also work in Albanian and Macedonian.). Although the internal politics of the “BCS” language are complex, its institution has allowed for high-quality, quick translations, at close to the speed of monolingual dialogue.
Prosecutors before the war crimes court also met the challenge of prosecuting a crime without the ability to investigate the crime scene. Senior Trial Attorney Peter McCloskey described how his office received assistance in this area from NATO and “crazy journalists” who had discovered mass graves on their own. Prosecutors also experienced difficulty during the wars in Bosnia and Herzegovina as well as Kosovo with a lack of available records. Nevertheless, in two decades, the court has managed to accumulate millions of pages of documents and thousands of witness statements and dossiers.
Despite the shortcomings that present themselves alongside the ICTY’s achievements, the tribunal has marked a significant milestone for international criminal law. As Secretary-General Ban Ki-moon stressed earlier this month in front of the U.N. General Assembly, “Impunity for war crimes, crimes against humanity, genocide and other serious international crimes is no longer acceptable, nor is it tolerated. Where once [victims] might have gone unheard, left to suffer in silence, today they have a platform.” He further emphasized the sanctity of the Court’s rule of law: “It means implementing their decisions. And it means safeguarding them from those who seek to undermine them for reasons that may have more to do with politics than justice.”
For further information, please see:
RFE/RL – Justice Activists Call For ‘Serious’ Review Of UN War Crimes Court – 16 April 2013
UN News Centre – Assembly Stresses Role of International Criminal Courts in Fostering Reconciliation – 10 April 2013
RFE/RL – ICTY President Criticizes Serbian-Organized UN Debate – 4 April 2013
The Economist – Laws in Translation – 25 March 2013
Friedrich Naumann Foundation – Bringing War Criminals to Justice and Justice to Victims: FNF Visits the International Criminal Tribunal for the Former Yugoslavia (ICTY) – 19 March 2013
