Sarajevo roses, which represent the longest siege in modern history warfare, 1425 days Sarajevo roses, which represent the longest siege in modern history warfare, 1425 days Hélène Veilleux, Dec. 3, 2015

The International Criminal Tribunal for the former Yugoslavia (ICTY) closed its doors on December 31, 2017, after working for 24 years, issuing 161 indictments and nearly as many judgments, hearing 4,600 witnesses over 10,800 days of trials, producing millions of pages and costing billions of dollars. Apart from the Second World War, no war has been as studied and certainly none has been the subject of judicial procedures like the one that tore the former Yugoslavia apart in the 1990s.  

So the time has come for a first evaluation, and the legacy of the ICTY is clearly considerable. Its major impact was to help judicialize international relations, and try to make this work even in wartime.  This is a revolution whose effects we cannot yet fully assess. A subsidiary consequence of this judicialization process is that the tribunal has created a class of lawyers specialized in mass violence, and has developed the law of war through its important jurisprudence. The ICTY brought slow, expensive justice in a language often incomprehensible to ordinary mortals. But through its work it shed light on key events of contemporary European history. Here we take a look at some of the major aspects of its legacy.   

The ICTY mandate

In 1993, when the Security Council adopted Resolutions 808 and 827, the international  community gave a triple role to the first international criminal tribunal ever created: establish the facts, punish the perpetrators of international crimes, and participate in maintaining peace as well as “repairing the effects” of the crimes. On all these things the ICTY has had both real successes and heavy defeats, even if responsibility was not the tribunal’s alone, in success or failure.  

Trigger for the judicial revolution of the 1990s

Under the impetus of the Cold War’s end and the fight against impunity, the ICTY was the mechanism that triggered the judicial revolution of the 1990s. A year after its creation, the UN Security Council was morally obliged to set up another ad hoc tribunal after the 1994 genocide of Tutsis in Rwanda. That was the International Criminal Tribunal for Rwanda (ICTR). In the same spirit of fighting impunity and stigmatizing criminals, there came in 1995 the creation of South Africa’s Truth and Reconciliation Commission. Then in 1998 came the Rome diplomatic conference that agreed the Statutes of the International Criminal Court. The ICC became operational in 2002 after 60 countries had ratified. Also in 1998 a former dictator, General Augusto Pinochet of Chili, was indicted by a Spanish judge as he was receiving medical treatment in the UK, giving a boost to the principle of universal jurisdiction. That principle had been established several centuries earlier to fight piracy on the high seas, and had more or less fallen into disuse. For the first time in 1999, the ICTY indicted a sitting president, Yugoslav president Slobodan Milosevic, for war crimes and crimes against humanity. Thus the rules and jurisprudence of the ICTY helped to considerably reduce what is permissible in terms of amnesty and immunity, something which pleases human rights organizations but not those who see international justice as a new form of judicial neo-imperialism. 

Justice during war

The main, highly controversial innovation of the ICTY was to introduce international justice even during war. This broke with the traditional sequencing of international relations where there was war, then peace, then sometimes justice. The idea of international justice during war polarized opinions. Some people think that applying international law can stop new crimes being committed, and so welcome the development. But others doubt the independence of such justice and think it makes peace negotiations even more difficult. They think it can also reinforce the desire of military and political leaders suspected of war crimes -- like Syria’s Bashar al-Assad -- to stay in power, so as not to spend the rest of their lives in jail. The debate about international justice in time of war remains hot, but it is now something that has become a fact and the principle has been adopted by the International Criminal Court. 

Establishing the facts

The Tribunal has indicted perpetrators of international crimes of different nationalities of the former Yugoslavia and has played a crucial role in establishing the facts linked to the international crimes falling under its jurisdiction, particularly the war in Bosnia Herzegovina (1992-1995). The main Bosnian Serb leaders responsible for the policy of ethnic cleansing,

Radovan Karadzic and Ratko Mladic, have been sanctioned. The most remarkable achievement was the detailed analysis of the chain of command, starting with those who executed the policy and working up to General Ratko Mladic in the organization and execution of more than 8,000 Muslims in Srebrenica, the biggest crime of the wars in former Yugoslavia in the 1990s. The siege of Sarajevo, the policy of ethnic cleansing and the violence meted out by the three parties to the conflict were also duly established and the perpetrators sanctioned.

On the other hand, Ante Gotovina, the Croat general responsible for Operation Storm --which took a toll on Serb civilians -- was sentenced to 24 years in jail for war crimes and crimes against humanity by the lower court but was acquitted by the Appeals Court in November 2012, leaving a bitter taste within Serb society and beyond. Similarly, whilst the crimes committed by Serb forces in Kosovo were clearly established, the same is not the case for crimes attributed to the Kosovo Liberation Army, the UCK. The ICTY’s acquittal of Ramush Haradinaj, former UCK commander and currently Prime Minister of Kosovo, was a blow to the Tribunal’s record. It failed to indict Kosovar leaders despite the fact that tens of thousands of Serbs and Roma people were forced to flee Kosovo. The fact that the European Union has set up the Kosovo Specialist Chambers on UCK crimes committed between 1998 and 2000 shows the limits of the ICTY’s work in this domain. In the same way, the ICTY was unable to prove the alleged responsibility of Serb ultra-nationalist Vojislav Seselj in international crimes, and acquitted him. 

ICTY jurisprudence

The ICTY has developed important jurisprudence on war crimes, crimes against humanity and acts of genocide. It extended the definition and sanctions on perpetrators of sexual violence, established that enslavement and persecution constitute crimes against humanity, clarified the rules of procedure with regard notably to witness protection and guilty pleas.

In his speech to the UN Security Council, the ICTY President reminded people of several major Tribunal decisions which have been written into law and taken up by other courts, both national and international. They include:

-          October 2, 1995: “What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.” Prosecutor v. Duško Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction).

-          December 10, 1998: “Rape may also amount to a grave breach of the Geneva Conventions, a violation of the laws or customs of war or an act of genocide, if the requisite elements are met, and may be prosecuted accordingly.” Prosecutor v. Anto Furundžija (Trial Judgment).

-          December 5, 2003: “Acts of violence wilfully directed against the civilian population with the primary purpose of spreading terror constitute a violation of the laws or customs of war.” Prosecutor v. Stanislav Galić (Trial Judgment and Opinion).

Guilty pleas and reconciliation

The ICTY managed to get 19 of the 161 people it indicted to plead guilty and confess, in return for a reduced sentence. These guilty pleas had several aims: to obtain key information on the chains of command and the whereabouts of mass graves, allowing families to recover the remains of their loved ones and to grieve. These guilty pleas, available on Internet, were also meant to create an alternative account to those of the nationalists that prevailed amongst the different communities. On this the ICTY failed, and it is one of the limits of international justice. Up to now the ICTY has not managed to get its message across to the majority in former Yugoslavia’s populations, and many war criminals are still considered heroes by a big section of their communities. The ICTY carries some of the responsibility: before 1999, its judgments were not translated into Serbo-Croat, and the first press release in Serbo-Croat was in 2000. This shows to what a large extent the Tribunal was geared to Western public opinion and not the societies of the former Yugoslavia that were supposed to be its prime concern. Some accused persons, notably former Serb president Slobodan Milosevic who died before his judgment could be handed down, also used the Tribunal as a political soapbox. Some judgments (notably in the Gotovina, Haradinaj and Seselj cases) also drew sharp criticism.

But we should also remember that neither German nor Japanese society supported the Nuremberg and Tokyo trials at the time. Another factor which contributed to rejection of ICTY decisions was that the scale of sanctions could not match the gravity of the crimes committed, which could only generate frustration among victims. German-origin philosopher Hannah Arendt described this difficulty well. The crimes of the Nazis were so terrible that they could not be forgiven or punished, she noted. It nevertheless remains that the ICTY failed on the reconciliation part of its mandate. But could it have succeeded? The Dayton peace accords only managed to silence the guns, not to create a real peace.

In the next part of this article we will be looking at the history that shaped the ICTY. Stay tuned!  

 

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