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).