The Hague campus of Leiden University today hosted the “Final Reflections” symposium of the International Criminal Tribunal for the former Yugoslavia (ICTY). Everyone from the institution showed up: current and past presidents, current and past judges as well as ad hoc judges, current and past prosecutors, media officers and archivists, plus a bunch of guests—gender advisors, professors, judges from other courts, and so on. Even the president of the International Criminal Court (ICC) spoke at the last panel. This was not a mere stock-taking exercise “between a variety of stakeholders,” says the agenda. Rather, it was an opportunity for said stakeholders to reflect on the ICTY’s legacy, ideally via a set of “short but emphatic statement[s] on the importance of international criminal courts and tribunals – particularly in today’s political climate.”
“Final Reflections” indeed. At the end of the month, ICTY closes its doors after almost a quarter century. Established in 1993 with the goal of providing accountability for war crimes that took place during the brutal dismemberment of Yugoslavia, this United Nations court has worked hard to contribute to both the Yugoslav region and to international criminal law. Its remaining business, including all outstanding appeals, will now go to the Residual Mechanism for International Tribunals, an institution that also handles the residuals of the International Criminal Tribunal for Rwanda, which closed in 2015.
Being a stakeholder myself, I wish to offer a few final reflections of my own.
For most casual observers, the image that frames the end of The Hague Yugoslavia is that of a Bosnian Croat commander, Slobodan Praljak, downing a vial of potassium cyanide on live television, moments after appeal judges upheld his 20-year term for war crimes — the court’s “final verdict.” Praljak, a theatre director and television producer before the war, knew how best to turn his suicide into a reality show. What he probably did not appreciate is just how quickly his performance would become B-level material for late-night comedy shows and for meme-hungry social media.
All of this is of course a travesty for anyone sober enough to realize the high stakes of transitional justice, especially that meted out by international courts. In a world where impunity is very much the rule, the last thing anyone needs is more courtroom antics and more war criminal jokes. As Eric Gordy said in one of his interviews in some Serbian newspaper that I can no longer locate, the real story here are the hundreds of thousands of Yugoslavs who continue to drink poison daily because of people like Praljak (more on this below).
A week before Praljak’s surreal stunt, a panel of judges had found the former Bosnian Serb military chief Ratko Mladić guilty of genocide, crimes against humanity and violations of the laws and customs of war — the court’s 84th conviction. This number alone shows just how far the ICTY has come since it was first established.
In its early years, the court did not gain many headlines and was mostly met with eye rolls. By its 10th anniversary, however, cynicism and skepticism slowly began to give way to guarded optimism. The watershed moment was arguably the arrest and extradition of Serbia’s former president, Slobodan Milošević, in 2001, an event that at once reflected and reinforced a period of relative stability and great hopes for a better future in the Yugoslav region. The so-called liberal international order was running strong and the governments in Belgrade, Sarajevo and Zagreb were cooperating more and more with the ICTY in order to demonstrate good behaviour in front of key power-holders in the Euro-Atlantic area.
ICTY verdicts on big fish perpetrators, on the Srebrenica genocide, on sexual violence, and on the joint Serbo-Croatian enterprise to carve up Bosnia are all sufficiently groundbreaking to establish the court as a pioneering war crimes tribunal — an heir of sorts to Nuremberg and Tokyo. In addition to shaping international legal development, the ICTY inspired the creation of the ICC. Today, whenever those beleaguered ICC prosecutors move to indict or investigate someone or something — Sudanese President Omar al-Bashir for Darfur; the role of the Taliban, Kabul government forces and United States soldiers and spooks in Afghanistan — they first closely consult ICTY work. And if you look at the developments around the Syrian war, you will see two more bodies following in the footsteps of the ICTY: a non-profit, non-governmental Commission for International Justice and Accountability (established in 2012) and a UN General Assembly-sponsored “Mechanism” (created in 2016).
The ICTY has had no shortage of failures. Numerous victims, witnesses, legal experts and other observers have also expressed profound concerns about the tribunal’s transparency and operating procedures — constant delays, high costs, shameless plea bargaining and low sentences. Note also that Praljak’s was in fact the third suicide that occurred on the ICTY’s watch, and that several high-profile defendants — including Milošević — died while on trial.
Among several really bad years, 2013 was probably the worst for the ICTY. After dishing out one controversial acquittal after another for months, the summer break came and the tribunal found itself embroiled in a scandal or, as The New York Times put it at the time, a “mini-rebellion” against the institution’s hierarchy.
The brouhaha began with a leaked email message in which the Danish judge, Frederik Harhoff, ranted to four dozen colleagues and associates about the tribunal’s misdirection. This email is still on the website of Berlingske, a Danish newspaper. In criticizing the ICTY’s “latest judgments,” Harhoff specifically referred to the appeals chamber rulings that acquitted three senior generals, Croatia’s Gotovina and Markač, plus Serbia’s Perišić, as well as a dismissal of a case against two secret police men, Serbia’s Stanišić and Simatović (the equally controversial acquittal of three members of the Kosovo Liberation Army went unaddressed). Harhoff wondered about the meaning of evidence used to prove that someone “specifically directed” the crime, and also lamented the dilution, as he saw it, of the concept of “joint criminal enterprise,” a legal doctrine with roots in the Nuremburg and Tokyo trials of war criminals that allows the prosecution of those involved in conspiracies to exterminate and/or expel entire communities of people.
I visited the ICTY only once—I ranted about this visit on this blog—and I was definitely never in the legal-local know, but even I could tell that Harhoff was a bit of a crank long before this scandal. More importantly, what he said in the letter was hardly dynamite even then. Many legal experts had already argued that ICTY rulings raised the bar for proving so-called command responsibility for war crimes. (By the way, the Stanišić & Simatović case remains open; indeed, it is yet to be proven that the accused were not in command of and/or logistically and financially supported those committing the killings).
What was dynamite, so to speak, was Harhoff’s (wholly unproven) insinuation that there is a principal-agent link between, on the one hand, U.S. and Israeli militaries and, on other hand, the American judge Theodor Meron, who presided over the ICTY and now presides over the Mechanism today, and who also happens to be a former Israeli diplomat. Unsurprisingly, anti-Semitic conspiracy theorists had a field day, but so did many long-time critics of the court. In response, court officials held a press conference and gave a bunch of interviews. An association of ICTY defence counsels declared that this email “undermines years of effort by judges and lawyers alike to create a fair and just institution of international justice”, and a couple of defence teams asked review based on Harhoff’s bias.
This scandal, such as it was, blew over quickly, in part because this all happened in the middle of the summer. It is still unclear what motivated Harhoff to blow the whistle on the alleged political pressure at the time, but I am hoping that future historians will investigate the Danish judge’s claims – as well as similar claims made by chatty court insiders who spoke out before and after him. (By the way, by effectively expelling himself from the ICTY, Harhoff set off a chain of events that led to the acquittal of Vojislav Šešelj in 2016—another omnishambles that still remains unresolved.)
Hope? What Hope?
The biggest ICTY-related failure is a political and economic disaster zone that is today’s Yugoslav region. I say “ICTY-related” because this is hardly the court’s fault. In her seminal book on the subject, Jelena Subotić talks about the “hijacking” of justice — the use of ICTY-supplied justice for local political ends. Even when they cooperated with the tribunal, most leaders of ex-Yugoslav states and statelets constantly vilified it for its alleged bias and unfairness — that is, for going hard after “ours” and letting “theirs” off the hook. This game is as despicable as it is popular — just consider the number and stature of the politicians in the region who over the past few weeks have lamented the fate of either Mladić or Praljak — one reason why many think the Yugosphere is now much closer to a “return to the 1990s” than to “reconciliation.” In a place that breaks the world’s unemployment records—the official rate for Bosnia is 44%, for example—this is the only proven technology of rule.
It is of course a sad commentary on the state of international affairs that millions of human beings victimized in the conflicts ranging from Afghanistan to Yemen and Zimbabwe would gladly take every one of ICTY’s failures. Like every year, this month’s assembly of states that have ratified and acceded the ICC-founding Rome Statute — the annual meeting ended last week — prompted many to say that the ICC is “still” failing in its mandate.
A case in point is yesterday’s New York Times op-ed by Thierry Cruvellier, who has written on both Rwanda and Cambodia. Predictably, the author focuses on the ICC’s move to investigate U.S. activities in Afghanistan in the 2003-04 period, and then uses this to illustrate great power exceptionalism/exemptionalism as one of the court’s main challenges: “Major states, including the United States, China and Russia, opposed its foundational treaty, the Rome Statute,” reminds Cruvellier. It is also true, again following the author, that the ICC “has gone after only Africans”–precisely what the government of Burundi said when it recently formally withdrew from the court. Then there is the issue of a “major crisis of credibility” caused by former ICC prosecutor Luis Moreno Ocampo who apparently had serious issues.
Cruvellier’s proposed solution is for the ICC to go hard after Libya, as this would help some Libyans, some migrants, the court itself, and finally those of us who are outraged by the rise of “straightforward slavery.” There is of course much pro et contra that can be said about this proposal. One point is a simple reminder of the state of “today’s political climate,” to use the words from the ICTY Final Reflections agenda. What in the 1990s was called the “international community” is now an ongoing scandal. Look no further than the current UK foreign secretary, the infamous BoJo, who a few months ago blithely declared that the Libyan town of Sirte could be like Dubai once the dead bodies were cleared away. If ICTY shows anything, it is that international efforts to achieve justice require adult leadership in key supporter countries like the UK.
If we agree that international justice is good because even little international justice is better than no justice at all, then I think we need to look for hope elsewhere. One area that I think holds much promise are national level cases invoking universal jurisdiction— investigations, lawsuits and trials against Syrians in Germany or Zimbabweans in South Africa, for example. Pinochet-style, but low-profile, all of these cases have problems, sometimes even fatal problems, yet they are increasingly an important mechanism for advancing justice in the above sense. This may not be “hope” but it may be reason enough for curbing skepticism and cynicism–even if ever so slightly.
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