The court is incompetent
The ICTY is constantly criticized for its organizational and procedural shortcomings, but is it fatally “incompetent”? To the extent that it resonates with ex-Yugos this charge must be made in the abstract only – the living ICTY is incompetent compared to the ideal ICTY. Compared to national legal venues, especially as they operated until recently, the court is indispensable, however (more on this below). Further, the ICTY is perceived as the big fish court, and the ability to get those “most responsible” is regarded as one of its strengths. And yet, much of this hard-earned reputation is being squandered in a series of rulings that acquitted some very big and very nasty fish. Even its supporters feel like the ICTY has lost its mojo.
Consider the Momčilo Perišić case. Here the Yugoslav National Army commander who was first convicted (27 years in prison!) for aiding and abetting war crimes perpetuated by Serb forces across the river Drina, and then completely acquitted by the Appeals Chamber. Logistically and financially supporting génocidaires may not be a crime after all! Putting aside the inability of the prosecutor to ever establish a clear chain of command going from Belgrade to Pale and Knin respectively, this ruling changes the current legal understanding of the principle of command responsibility so decisively that it will almost surely protect many miscreants in the future. Some have even used it read back past ICTY rulings, breaking the chains of causation that lead to Belgrade (“this is a posthumous acquittal of Milošević!”) as well as Zagreb, and blaming the massacres on the small fish (what’s next? Isolated cases of extremism?).
Then there is the acquittal of Ramush Haradinaj, the prime minister of Kosovo, and that particular joint criminal enterprise (the presence of witness intimidation, note, was mentioned in this ruling). Next, the Ante Gotovina and Mladen Markač decision. The 2011 Trial Chamber ruling convicted them to 24 years for their role in, among other things, the joint criminal enterprise to expel the Serb population in Krajina following the 1995 Operation Storm (with Tudjman as the enterprise’s CEO again). Then, earlier this year, the Appeals Chamber ruled, in a split decision, that no such joint criminal enterprise existed (as well as that some Mladić-style military actions might be ok, but let’s put that aside for now). And last, the Jovica Stanišić and Franko Simatović case: the ICTY found no qualms with their arms dealing, bankrolling para-military formations and otherwise supporting of the Serb administrations in Bosnia, Croatia, and Kosovo, and, above all, no evidence of conspiracy to bring about the removal of the non-Serb population from any part of the former Yugoslavia (the rest of their ghastly dossier, so much of which is easily accessible via YouTube, fell outside the court’s scope).
None of these acquittals necessarily spell the end of prosecution for the individuals involved, to say nothing about absolving this or that side in conflict of wrongdoing. But for the ICTY, the optics are terrible. Did you just kill the joint criminal conspiracy as a war crimes category? If we look at popular explanations of the acquittals, we find a lot of linkage politics (always involving the EU) and a lot of overlapping conspiracy theories involving lobbying (Gotovina & Markač), fears (in her memoirs, I think Del Ponte says at point that investigation into Kosovar Albanian war crimes – all the usual items plus the killing of Serb prisoners, civilians included, for the purpose of organ-harvesting – was scrapped partly because the court officials were intimidated of the long reach of the Kosovar Albanian death squads), CIA protection (Stanišić) and Western military pressure (Perišić). And probably for the first time, at least some of these conspiracy theories are looking increasingly amenable to empirical analysis and falsification. Allow me to quote from Harhoff’s email at length again:
What can we learn from this? You would think that the military establishment in leading states (such as USA and Israel) felt that the courts in practice were getting too close to the military commanders’ responsibilities. One hoped that the commanders would not be held responsible unless they had actively encouraged their subordinate forces to commit crimes. In other words: The court was heading too far in the direction of commanding officers being held responsible for every crime their subordinates committed. Thus their intention to commit crime had to be specifically proven.
But that is exactly what the commanders get paid for: They MUST ensure that in their area of responsibility no crimes are committed, and if they are they must do what they can to prosecute the guilty parties. And no one who supports the idea of ethnic eradication can deny the responsibility of, in one way or another, contributing to the achievement of such a goal.
However, this is no longer the case. Now apparently the commanders must have had a direct intention to commit crimes – and not just knowledge or suspicion that the crimes were or would be committed. Well, that begs the question of how this military logic pressures the international criminal justice system? Have any American or Israeli officials ever exerted pressure on the American presiding judge (the presiding judge for the court that is) to ensure a change of direction?
We will probably never know. But reports of the same American presiding judge’s tenacious pressure on his colleagues in the Gotovina-Perisic case makes you think he was determined to achieve an acquittal – and especially that he was lucky enough to convince the elderly Turkish judge to change his mind at the last minute. Both judgements then became majority judgements 3 -2. And so what of the latest judgement in the Stanisic-Simatovic case? Here it was not the Appeals Chamber that passed the judgement, but a department in a premium authority with the Dutch judge Orie as presiding judge supported by the Zimbabwean judge, but with dissent from the female French judge…? Was Orie under pressure from the American presiding judge? It appears so! Rumour from the corridors has it that the presiding judge demanded that the judgement against the two defendants absolutely had to be delivered last Thursday – without the three judges in the premium authority having had time to discuss the defence properly – so that the presiding judge’s promise to the FN’s security service could be met. The French judge only had 4 days to write the dissent, which was not even discussed between the three judges in the department. A rush job. I would not have believed it of Orie.
The result is now that not only has the court taken a significant step back from the lesson that commanding military leaders have to take responsibility for their subordinates’ crimes (unless it can be proven that they knew nothing about it) – but also that the theory of responsibility under the specific “joint criminal enterprise” has now been reduced from contribution to crimes (in some way or another) to demanding a direct intention to commit crime (and so not just acceptance of the crimes being committed). Most of the cases will lead to commanding officers walking free from here on. So the American (and Israeli) military leaders can breathe a sigh of relief.
Even before the email was leaked, the series of acquittal had got so many legal experts talking that court officials worked in nothing but damage control mode for months. Now, we have a full-blown scandal. The American presiding judge in question is Theodor Meron, tribunal president who is also a former NYU law school prof and a former Israeli diplomat. According to The New York Times, he now has a “mini-rebellion” on his hands. No wonder. Political fallout is still spreading. Long-time critics of the court are outraged (“So this is why they Westerners the Bosnian war as a civil war and the Croatian 1995 offensive as a liberation war”), at least one defence team is seeking review based on Harhoff’s bias, and Šešelj, you’ve guessed it, can’t stop licking his chops (“I’ve been saying that the court is an American-Israeli tool for 11 years”). Whatever the extent of the fallout, it will probably help reduce the attention deficit among the core and non-core constituents. But if the Appeal Chamber overturns yet another joint criminal enterprise ruling or, worse, if the court finds Karadžić “not guilty” for genocide, the ICTY will doubtless go down in history as a prime example of what not do in the pursuit of transitional justice.
Legal scholars are always quick to explain to me that “joint criminal enterprise” is the trickiest of charges, always full of controversy and ambiguity. Conspiracies are harder to establish than chains of command, and the risk of making Type I errors is extremely high. And yet, they also always agree that finding ways to condemn conspiracies to exterminate and expel entire communities may be one of the most important legacies of Nuremberg. I’ll repeat myself: nothing negates transitional justice like an argument that committed crimes were perpetrated by the small fry.
There is another puzzling case for me: Florence Hartmann. Here is a former journalist who worked as a spokesperson for the chief prosecutor Del Ponte (herself an outspoken ICTY figure) and who wrote an excellent book about the tribunal subtitled The Secret Wars of Politics and International Justice (still only available in French as well as in the Slavic languages of the region). There, Hartmann was critical of the politics that surround the life of the court and also described a couple of appellate rulings. Nothing shocking, but a big no-no according to the court. Upon finding her to be in contempt of court, the court first tried to fine her and then ordered her imprisonment (7 days!). I am no legal expert but for the life of me I can’t see how this book (and one essay) endangered due process. What I can see, however, is no shortage of petty-mindedness, bitterness and incompetence. Perhaps the ICTY learned something from this episode, which is why it is pussyfooting around Harhoff and still deliberating on what to do next (a non-perfunctory investigation of his claims would be a good idea, if you ask me).
Related to the incompetence charge is the argument that “the court is counterproductive.” What is conveyed here is a suspicion that the court’s “flawed” rulings make the pursuit of collective catharsis harder, not easier. This one strikes me as a snap judgment par excellence. No stock-taking exercise will be final of course, but there will be many attempts to weigh the sum of “questionable” rulings against bigger and straightforward achievements such as, for example, the dismissal of the notion of collective guilt. But if what’s ultimately at stake here is the legitimacy and legitimation of the nation-states and statelets that emerged from the Yugoslav carcass, then there is a strong element of counter-productivity. The same goes double for setting forth international law for future trials: if Harhoff is even half-right about the effects of this putative turn to militarism, many villains from the ICC indictee list will probably end up escaping justice. The incompetence and counterproductivity objections may sound lame, especially when accompanied by conspiracy theories, but I find that they can help us interrogate the politics of transitional justice head-on.
In Part I, we dismissed the contention that one measure of the tribunal’s competence should be the ability to connect crimes to the biggest political projects – ethnically homogeneous states and para-states. But is there a legal mechanism that could effectively deal with co-conspiracies? I believe that the category of joint criminal enterprise should be central to understanding this war (doesn’t the fact that both Milošević and Tudjman effortlessly negotiated and then struck a peace deal on behalf of their Bosnians and Herzegovians provide evidence in favour of the joint criminal enterprise thesis?). But if one take the category seriously, why not take it to the next level and try and make a convincing case that multiple newly constituted ex-Yu ethnocracies were mutually constituted? Not in the abstract social-theoretic sense that all readers of this blog would love to discuss at the drop of a hat, but primarily in terms of what I think should be legally demonstrable practice of the let’s-carve-up-Bosnia-as-gentlemen summitry. Toponyms of this particular anti-Yugoslav and specifically anti-Bosnian infamy are Graz, Igalo, and, above all, Karadjordjevo. Not sure if such summits ever took place over Kosovo or Macedonia, but many agents were working to make them happen (some are still at it). Enterprising efforts to establish “purity” always feed off each other across time and space. To illustrate this point, one can venture back into the “age of extremes” or look for similarities with contemporary war-torn locations in Asia and Africa. But war is but one expression of these processes. Consider the beyond-the-ICTY-pale Slovenia. In 1992, its government “erased” around 20,000 people holding rest-of-the-ex-Yu citizenship from the Slovenian official permanent residence registry. Not a crime against humanity, but not an administrative misdemeanour either.
The court was never about Yugoslavia anyway
On one level, this is true. The “Y” in the ICTY may not be as important as the other three letters, which are most fundamentally about Enlightenment ideas and discourses on cosmopolitan law. It is also true that the specific mechanisms of international and, indeed, cosmopolitan justice introduced at Nuremberg and Tokyo were basically dormant until Yugoslavia (and Rwanda), and the eyes of those who planned and bankrolled the ICTY were always fixed on more global and more enduring international institutions that would be established next, the ICC above all. Indeed, I don’t think it is controversial to say that the developments in the ICTY had a direct bearing on important events ranging from the London arrest of Pinochet to the trials of Hussein, Taylor, Lubanga, Katanga and Ngudjolo Chui, the indictments of Kony and al-Bashir and so on (on all these important developments, see this much-shared Leitner Center document). In addition to recognizing states as persons, international law has long recognized persons as persons, but this recognition meant little until “new” mechanisms of enforcement were tried out in the 1990s.
In her book, Kerr is correct to argue that the ICTY was instrumental in shifting the discourse and practice of post-conflict justice such that the international stakeholders now immediately plunge into a discussion of the pros and cons of one mechanism over another, rather than debating the meanings of justice and state sovereignty. But new here means experimental. Once again, the ICTY’s attempt to adjudicate whether individuals were criminally responsible for violations of international human rights law, either as planners or participants, seems much easier than doing the same for groups of conspiring individuals. It will indeed be interesting to see how the ICC will deal with the concept of joint criminal enterprises in the future.
Apart from situating the ICTY in broader historical processes at a global scale, the above assertion of problem is meant to convey a certain what-did-you-expect resignation about the work of an institution made designed by, and for, the international community. The ICTY was aware of this problem in 2008, when it went on an outreach spree. Not sure if it’s still going on – though I note that the ICTY offices in Zagreb and Pristina closed earlier this year – but I am seeing no evidence that this effort succeeded. Here’s Kerr again, this time writing for the CIPS Blog a couple of months ago (also see this 2012 policy brief):
In some respects it may be too early to judge, as the Tribunal’s ‘battle for hearts and minds’ is ongoing and its legacy contested. However, after reaching its high point with the arrest of the last accused in 2011, the past couple of years have been particularly inauspicious. Analysis of various opinion polls, public statements and media coverage of war crimes issues shows that attitudes toward the Tribunal remain largely negative among the people of the former Yugoslavia (the Tribunal’s primary constituents), albeit in different ways and for different reasons…This is the key failing of the ICTY: that its work has somehow been ‘lost in translation’, mediated by a hostile media and ethno-nationalist discourses. Analysis of how and why this has happened yields useful lessons for other institutions. Most importantly, efforts to foster real engagement with the process must be made in a more concerted way, and much earlier on.
This problem relates to the aforementioned issue of agency. From its inception, the ICTY was understood to act towards big political goals as well. Pushing the ex-Yugoslav space into what is sometimes called the “Euro-Atlantic mainstream” was one of them: try to think about the court without invoking transition, Europeanization or democratization if you can. And herein lies another common objection: “now” that stability, democracy, and the rule of law are more or less consolidated or fast consolidating in the Ex-Yu, why not move the tribunal there? This would localize transitional justice, share “ownership,” and improve accountability. It may even help citizens reflect on one meaning of their state’s regime type, which could be good for both transitional and social justice. (Democracy, the West Balkanians might conclude, is both a tool and a prerequisite of justice given that the just distribution of rights among agents cannot occur if those agents have unequal rights in political decision-making).
The historical blueprint in Nuremberg (no one ever mentions Tokyo in this context): Had the Nazis been prosecuted in The Hague and primarily in English, Germans would have never tackled their demons so quickly and so well. This perspective sometimes leads to a contention that the ICTY’s problem is that’s insufficiently political. The more one politicizes the process, the better. In the Yugoslav case especially, but probably in any other case, analogies with postwar Germany are shaky. The legacy of Nuremberg is not without controversy, but I think it is safe to say that the effects of Nuremberg on German society and politics were critically mediated not by democracy and the rule of law but by the Allied occupation. To the extent that fascism remained a strong force, it was nonetheless successfully reduced to kitchen table klatsch. Not so with the ex-Yugoslav republics: all of them, including the newly minted EU members, are struggling to free themselves from the kleptocratic elites that entrenched themselves in power structures during the 1990s.
These elites – ethnocrats, I like to call them – are skillful in using nationalism to control the masses and so perpetuate themselves in power; even today, almost two decades after Dayton, no other ideology, practice or technology of rule comes close to nationalism in terms of it power and pervasiveness. Nationalism, indeed, is also the main reason why the ICTY has refused to let Serbian citizens serve their sentences back home: their prison cells would turn into the places of hero worship. Next, and more important, the ex-Yu states are fully sovereign when it comes to enabling public and occasionally very violent expressions of nationalism (among other inferior-isms). Imagine, then, what would happen if the ICTY had accepted an invitation to move its work to Zemun or Mostar (which ex-Yu city is most like Nuremberg, I wonder). Any local politician regarded as responsible for this particular innovation would not only commit political suicide, but would most likely be shot on the spot (Zoran Djindjić, probably the best and brightest prime minister Serbia ever had, was assassinated for less). A single “wrong” ruling and the ICTY complex would end up in flames – think of the U.S. embassy in Belgrade in 2008.
There are many normative and political reasons for “putting Y back into the ICTY,” but it’s easy to show that most ex-Yu republics could not guarantee the “normalcy” of the legal process; enforcing the court’s writ, for one, is a key part of such normalcy. I am also wondering, in my non-expert way, if the move to some ex-Yu city would not be self-defeating for the ICTY. Wouldn’t the tribunal immediately lose its jurisdiction? If a state can and wants to hold war crimes trials, then international legal venues are not needed, right?
I should end by observing that more and more war crimes trials taking place in domestic judicial institutions. In 2005, Bosnia’s judicial system expanded to include a special war crimes department within prosecutor’s office, and Serbia followed suit by establishing a judicial council for war crimes within a high court in Belgrade. Other states are saying that no special war crimes departments were necessary in their legal systems (Croatia’s regional court have been lauded in recent years by human rights groups – h/t to Jelena Subotić). In any case, it looks to me as if domestic courts will have processed more criminal cases than by the end of this decade than the ICTY. When that happens, we will be able to make a more informed assessment of the performance of different ways of securing justice for victims in ex-Yu.
What day is today?
The Yugoslav wars continue to profoundly shape the ex-Yu states and their societies, and will continue do shape public consciousness long into the future; indeed, the 1990s will not pass from living to historical memory for the next seventy or eighty years. Today, I hope you noticed, is the official commemoration of Srebrenica, one of the most-researched crimes in history. This is where the contribution of the ICTY is indisputable, together with the contributions made by the ICC, the International Court of Justice, as well as half dozen inquiries conducted by Dutch, French and ex-Yugoslav governments. But no other body except the ICTY could do that most important job of all: securing convictions of those chiefly responsible for this genocide, pictured above.