Frederik Harhoff

Notes on Ex-Yu Justice, Part III

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Following Part I and Part II

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?).

smallfry

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).

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Notes on Ex-Yu Justice, Part II

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Following Part I, and in advance of Part III.

The court is political  

The smartass response goes something likes this: “Of course it’s political; what’s not political? Haven’t you read the ICTY’s website? It says clearly that the tribunal was established for explicitly political reasons, too, by the UNSC, which is political by definition.” But the smartass response is a rude interruption. The above assertive prefaces monologue, not dialogue. The monologue is a story about world politics as a dog-eat-dog contest in which the strong always devour the weak with a focus on the origins of the ICTY. “Of course an international judicial institution cannot be created on the basis of an UNSC resolution alone. Of course Chapter VII of the UN Charter does not specify the conditions under which war crimes tribunals can be set up. Of course the ICTY quickly discovered that it could not bother with the question of own legality. But when have great powers ever cared about law and institutions? Might makes right, right? The ICTY is based on the consent of states – big states, not our banana republics.”

This story varies in terms of breadth and depth, but its modal conclusion is that the tribunal cannot represent anything but “victor’s justice” and/or Western and specifically American oppression of those living on the periphery. As for the motive, the supposedly aggressive prosecution of Bosno-Serbo-Croat baddies practiced by the ICTY is a function of the desire for retribution for every case of ex-Yu insolence in recent history, starting with the Trieste crisis of 1945. As discipline and punishment at once, trials are also meant to serve as a warning to the rest of the peripheral and semi-peripheral world. This type of theorizing could be described as a cross between pop-realism and pop-Marxism with a whiff of the crudest forms of pop-anti-Americanism and some other, far less respectable prejudices. While it is not exactly a closed loop, for every new newstory indexing Western and specifically American double standards and double visions in international law, the theory gains strength. Who in the former Yugoslavia doesn’t have an informed opinion on the “Hague Invasion Act”?

imgfrontisThe two accounts of the origins of the ICTY that I have on my shelf make something of an opposite case. Pierre Hazan’s book, subtitled ‘The True Story Behind the ICTY’, suggests that the weak (international justice activists) outfoxed the strong (realist diplomats and state-centric lawyers) and, against all odds, managed to turn the tribunal into such a revolutionary achievement (more on this below). Hazan is no theorist of norms and transnational advocacy networks, but there are more than a few parallels with this literature. The second account is Rachel Kerr’s 2004 book, which begins and ends with the thorny issue of “politicization,” including the issue of “prosecutorial discretion” as its special subset. Kerr has the ICTY walking on a tightrope. Sidle up too closely to justice, and you alienate those who rule the world; let politics in, even to manipulate it for judicial ends, and you lose credibility. While infinitely more nuanced than Hazan’s, Kerr’s framework for analyzing politics (it, too, chimes with 1990s IR theory, namely the “bringing international law back in” literature) follows the same binary – let me personify it a little as a contest between “realists” versus “legalists” – and it reaches the same conclusion. And judging by both the quotidian operation of the court as well as its key decisions up to 2002-3, Kerr finds, “legalists” had the upper hand.

I am not sure what stock-taking exercises based on the realist vs. legalist framework look like today (again, this post is my attempt to reconnect with the literature I stopped following years ago), but what struck me in my conversations is how adamant my interlocutors were in rejecting even the most carefully drawn legalist claims. It’s simple, the typical response goes, the ICTY is subject to constant political pressures and it shouldn’t be surprising to see so much judicial malpractice. Lest one is keen to dismiss this as “typical” ex-communist (and transitionalist) disdain for the notion that law serves to ensure that valuable social goods are distributed in ways that protect equal respect for everyone, note that some of the most critical arguments about the “hopelessly political court” are drawn from the texts left behind by bona fide ICTY insiders like Antonio Cassese (he of  those great international law textbooks), Gabrielle Kirk McDonald, Louise Arbour, Graham Blewitt, Carla Del Ponte, Serge Brammerz, and Florence Hartmann (more below). Anyone can cherry-pick a few memorable lines from a few memoirs and journalistic accounts (Hartmann, if I recall correctly: “the ICTY was formed so that war criminals could negotiate on the level of their innocence”), but what I find interesting is that these types of arguments have gained more and more adherents over the years.

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