Prosecuting War Crimes

James Gow, Rachel Kerr, Zoran Pajic

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781134610846
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This volume examines the legacy of the International Criminal Tribunal for the former Yugoslavia (ICTY), which was created under Chapter VII of the UN Charter as a mechanism explicitly aimed at the restoration and maintenance of international peace and security.

As the ICTY has now entered its twentieth year, this volume reflects on the record and practices of the Tribunal. Since it was established, it has had enormous impact on the procedural, jurisprudential and institutional development of international criminal law, as well as the international criminal justice project. This will be its international legacy, but its legacy in the region where the crimes under its jurisdiction took place is less clear; research has shown that reactions to the ICTY have been mixed among the communities most affected by its work. Bringing together a range of key thinkers in the field, Prosecuting War Crimes explores these findings and discusses why many feel that the ICTY has failed to fully engage with people's experiences and meet their expectations.

This book will be of much interest to students of war crimes, international criminal law, Central and East European politics, human rights, and peace and conflict studies.

1 Introduction

Trials and tribulations at the ICTY

Rachel Kerr

In February 1993, the Security Council of the United Nations took the extraordinary and unprecedented step of creating an ad hoc international criminal tribunal to prosecute persons responsible for violations of international humanitarian law committed in the former Yugoslavia since January 1991. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established three months later, on 25 May 1993. It celebrated its twentieth anniversary in 2013.

In its 20 years of operation, the ICTY has gone through a number of distinct phases. In his contribution to a retrospective assessing the ICTY’s first 10 years, Mirko Klarin characterised it in terms of ‘four battles’: for survival, for respect, for hearts and minds, and for time.¹ The Tribunal has entered a fifth phase, which we might characterise as a battle for its legacy. This is the subject of this volume, whose aim is to bring together a range of viewpoints and approaches to the question of what ICTY’s legacy was and will be in terms of its contribution to the restoration and maintenance of peace in the Western Balkans region. Before we get into the question of the Tribunal’s legacy, however, this chapter will briefly discuss the record of the Tribunal to date, building on the framework suggested by Klarin, and presenting the history of the Tribunal as a series of challenges: (1) to establish a court (survival); (2) to obtain cooperation (respect); (3) to secure legitimacy (hearts and minds); (4) to complete its work; and (5) to secure a legacy.

Establishing a court

Resolution 827, establishing the Tribunal, was only the first step in the lengthy and involved process of establishing a functioning international court. As the then-President of the Tribunal, Antonio Cassese, made clear in his first address to the United Nations General Assembly, in November 1994, ‘The logistic requirements of an international criminal court are numerous and varied and markedly different from those necessary for setting up any of the various administrative bodies of the United Nations.’² They had a Statute but no courtroom, no place to hold the accused pending trial, prosecutors, judges, clerks, administrative staff, security officers or guards. All of this had to be created from nothing.³

Practical and logistical challenges were compounded by a lack of diplomatic and financial support, not least at the UN, where arguments over the budget resulted in an initial sum of only $5.6 million for the Tribunal. The Chief Prosecutor, Richard Goldstone, characterised the Tribunal as ‘the child of an insolvent parent, with all the consequences that has’. It might be more accurate to characterise it as the child of bickering and neglectful parents, bearing in mind the fact that it had already taken over a year to appoint Richard Goldstone as Chief Prosecutor, largely as a result of political wrangling in the Security Council over earlier nominations. It was condemned as both a ‘paper tiger’ and a ‘fig leaf’ to cover the inability and lack of will of the international community to intervene more forcefully to put an end to the atrocities taking place in the former Yugoslavia.⁴ It is possible that even those states who supported the idea of the Tribunal in the Security Council did not really expect it to work; indeed, some commentators argued at the time that for others, such as Britain, it was only intended to placate public opinion while giving ‘free reign to diplomacy’.⁵ Madeleine Albright, who was at the time the United States Ambassador to the Security Council, and who had been instrumental in lending support to the idea of establishing a Tribunal, admitted as much in December 2002, when she said,

It was easy enough to take the first vote in February [1993] to get the Tribunal created, but nobody really believed that it would work.… They said there would never be any trials, and then they said there would never be any convictions, and there would never be any sentencing …⁶

Opposition to the Tribunal was both pragmatic and theoretical. Whilst some argued that it was not within the remit of the UN to create an international tribunal,⁷ others were fearful of the potential impact on any attempt at peace negotiations,⁸ and still others argued that the problem of war crimes was simply too large for a judicial solution.⁹ Meanwhile, those engaged in the task – the judges, prosecutors, investigators and others who gathered in The Hague – believed it was both feasible and desirable – for a host of reasons – to prosecute war crimes at the ICTY and set about building an institution with the capability to do so. Its inauspicious start notwithstanding, the initial process of establishment was more or less complete by the end of 1996, when Richard Goldstone and Antonio Cassese ended their tenure as first Prosecutor and President of the Tribunal, respectively. In two years, the Tribunal had grown from being a ‘nebulous idea to a living reality’, according to Cassese. The first proceedings were underway in November 1994; the first trial, of Duško Tadić, began in May 1996, and with it a ‘new and critical phase’ for the Tribunal.¹⁰

Obtaining cooperation

Cassese and Goldstone were succeeded by two formidable female judges. Judge Gabrielle Kirk Macdonald served as President of the Tribunal from 1997–9, and Justice Louise Arbour was appointed Chief Prosecutor in October 1996 and left at the end of September 1999.¹¹ Their primary task during this second phase of operation was to overcome opposition to the Tribunal, which lingered in some Western capitals, and to obtain cooperation from these capitals and from the governments in the region in order for it to function. Arbour in particular saw her task as to turn perceptions of the Tribunal around. Rather than being treated as an ineffective NGO, and behaving as such, she asserted the authority of the Tribunal as a Chapter VII coercive mechanism and demanded compliance, instead of requesting cooperation.

To a large extent, this strategy worked. It was coupled with a strategy of persuading Western governments that the Tribunal could serve a useful and pragmatic purpose in the peace process, rather than being seen as a potential obstacle to it. Cassese and Goldstone had successfully navigated the crisis that arose when Radovan Karadžić and Ratko Mladić were indicted, in April 1995, but the real task of persuading Western governments that the Tribunal was not only not a nuisance, but could be of real practical use, fell to Arbour. She focused not on the Tribunal’s potential contribution to fostering peace through strategies such as establishing individual, not collective, guilt and creating an historical record, but rather on its concrete and specific contribution as a device for removing potential spoilers and troublemakers. This strategy bore fruit with the first detention by international forces (UNTAES) carried out successfully in June 1997, and the July 1997 operation to arrest Simo Drjlača and Milan Kovačević, carried out by British SFOR troops.¹²

The other big contribution that Arbour made to ensuring the Tribunal’s effectiveness was to review existing indictments and investigations. One of the criticisms levelled at the Tribunal was that, apart from the indictments against Karadžić and Mladić, the cases were focused on relatively ‘small-fry’ – functionaries rather than those who were responsible for ordering atrocities. There were good reasons for this: until 1995, the Tribunal was trying to conduct investigations while the conflict was ongoing, which made it difficult to access evidence and find witnesses; and, under pressure from the Judges and the international community to demonstrate that it was doing something, Goldstone issued any indictments he could, based on the evidence base established by the UN Commission of Experts in the first instance. There was also the problem of not having any accused in custody, so once there was a prospect of being able to hold a trial – in respect of Tadić and Dražen Erdemović, both of whom had been detained in Germany and could be transferred to the Tribunal – it seemed prudent to go ahead. It did have the effect, however, of making the Tribunal look rather impotent when it came to the ‘big fish’. Under Arbour, the Office of the Prosecutor reviewed its strategy and withdrew indictments against 18 accused. Most of the indictments issued between 1996 and 1999, during Arbour’s tenure, were issued under seal, which not only made it more likely that the accused could be caught, as they were unaware they were being sought, but it also confirmed Arbour’s assertion of the Tribunal as a real-time enforcement body, rather than a symbolic gesture. They also reached higher up the chain of political and military command to include figures such as General Stanislav Galić (Commander of the Sarajevo Romanija Corps of the Bosnian Serb Army [VRS]), General Radislav Krstić (Commander of the Drina Corps of the VRS), Radislav Brdjanin (President of the Autonomous Region of Krajina [ARK] Crisis Staff) and General Momir Talić (Commander of 5th Corps and 1st Krajina Corps and a Member of the ARK Crisis Staff), and Zeljko Ražnjatović (aka Arkan, Commander of the Paramilitary Corps known as Arkan’s Tigers). Momcilo Krajišnik and Biljana Plavšić, President of the Bosnian Serb Assembly and Member of the Presidency of the RS, respectively, were indicted soon after Arbour left office, in March and April 2000.

Perhaps most significant, however, was the role the Tribunal played in the brewing crisis in Kosovo in 1998–9 (discussed in detail in Ernst Dijxhoorn’s chapter). According to Arbour, it was Kosovo that demonstrated the Tribunal’s real-time enforcement capability. Investigations were launched in the midst of the crisis, in spite of (misplaced) objections raised by the government in Belgrade that Kosovo did not fall under the ICTY’s jurisdiction. Then, in the middle of NATO’s bombing campaign, on 27 May 1999, Arbour announced that indictments had been confirmed against the President of the Federal Republic of Yugoslavia (FRY), Slobodan Milošević, and four senior members of his government (Milan Milutinović, Nikola Sainović, Dragoljub Odjanić and Vlajko Stojilković) for war crimes and crimes against humanity committed in Kosovo. The Milošević indictment was a watershed moment for Milošević as well as for the West’s dealings with him, and for the Tribunal itself. It was the first time a sitting head of state had been indicted for war crimes; and, although it took another two years, his eventual transfer to The Hague on 28 June 2001 was a coup for the Tribunal which had, just a few years earlier, been dismissed as irrelevant.

Communication and outreach

By the end of 1999, the Tribunal had taken great strides. Its detention unit was full, thanks to the numbers of arrests carried out by international forces, as well as a number of voluntary surrenders. However, although Arbour had been successful in persuading Western governments, particularly those with troops on the ground, of the merits of cooperating with and supporting the Tribunal, many accused remained at large, including most notoriously Karadžić and Mladić. It had also dawned on the Tribunal that it had almost totally neglected its key constituents – the people of the former Yugoslavia. This third phase of the Tribunal’s operation, beginning in 1999, comprised two strands: the first was a concerted effort to obtain cooperation from the governments of the region in order to secure arrests and to gain access to evidence and witnesses, and the second was a programme of outreach activities in the former Yugoslavia launched with the aim of communicating the Tribunal’s work. These efforts did not always go hand in hand.

An outreach programme was established at the ICTY at the end of 1998, five and a half years after the establishment of the Tribunal. It took another few years for it to find its feet and begin to carry out sustained activities; and, although by 2013, it was relatively well developed, the ICTY was harshly criticised for its failure early on to engage local communities. This is exemplified not only by the physical remoteness of the Tribunal from the region where crimes took place, but also by the fact that the majority of the Tribunal’s documents were not even translated into Bosnian/Croatian/Serbian (BSC). In 2004 former Assistant Secretary-General for Legal Affairs of the United Nations, Ralph Zacklin, argued that outreach had failed to overcome the sense of remoteness from the ICTY among victim communities or to bridge the significant gap in knowledge and appreciation of its work.¹³

The ICTY’s outreach programme had two core areas of activity. The first was aimed at maintaining ‘close contact and an open dialogue’ with the public in the countries of the former Yugoslavia and involved organising a series of conferences, roundtables and seminars in the former Yugoslavia. The largest of these was held during 2004 and 2005, when the ICTY’s outreach programme organised a series of conferences in Brčko, Foča, Konjic, Prijedor and Srebrenica entitled ‘Bridging the gap between the ICTY and communities in Bosnia and Herzegovina’. More recently, outreach activities were aimed at engaging young people through seminars at universities and high schools in the region. An important tool in outreach was the use of visual evidence in the form of footage of trials or the use of photographic and video evidence to help explain the investigative process and basis for judgment at trial.

The second core area of activity was aimed at capacity-building in order to facilitate the transfer of cases from the ICTY to local courts in furtherance of its completion strategy, and involved training sessions with local legal professionals and members of the judiciary focused on practical issues such as how to access and navigate the ICTY’s databases, as well as more legal-technical issues involved in the prosecution of war crimes, crimes against humanity and genocide, and, more specifically, challenges involved in prosecuting sexual assault in this context.

In spite of all this, attitudes towards the Tribunal remained largely negative among all groups, as discussed in this volume. There was considerable dissonance between the record of achievement in The Hague and how the Tribunal was perceived and understood by people in the region. This engendered criticism that, among other things, the Tribunal has ultimately been ‘ineffective’.¹⁴ There are two main reasons for this state of affairs, both of which have to do with this phase of the Tribunal’s history. The first was that outreach was, at least initially, too little, too late, and it failed to overcome the negative views of the Tribunal perpetuated by the local media and politicians, which have taken hold. The second was that the policy of ‘Hague conditionality’ requiring cooperation with the Tribunal was presented by the governments of the region, and in public discourse, as being a necessary evil – a means to an end, the end being eventual admission to the European Union – which only consolidated negative attitudes toward the Tribunal.¹⁵ The upside of the policy of Hague conditionality was, of course, the effect it nevertheless had on cooperation: with the arrest of the last accused, Goran Hadžić, in July 2011, none of the ICTY’s indictees remained at large, leading Guardian journalist Julian Borger to declare ‘mission accomplished’.¹⁶

Completing its work

The Tribunal was, in 2013, in the last throes of its work and was expected to complete its last trials by the middle of 2016,¹⁷ some 10 years after it entered what was supposed to be its ‘completion’ phase. In 2003 the Security Council passed Resolutions 1503 and 1534, endorsing the ICTY’s completion strategy which aimed to complete all investigations by the end of 2004, all trials by the end of 2008 and all its work by 2010. It was supposed to achieve this by (a) transferring cases concerning low- to mid-level accused to national courts and (b) expediting its trial process. The Tribunal met the first of these deadlines but the other two were unmet in 2013, largely due to the delay in obtaining custody of the accused, and then, once they were there, having to start new trials, whilst at the same time winding down.

The rationale for the completion strategy was two-fold. Officially, it was in response to the increased capacity and willingness of local judicial systems to take on war crimes cases in specialised courts. Unofficially, it was motivated by criticism that, 10 years into its life, the ICTY was ‘too costly, too inefficient and too ineffective’. According to Zacklin (and echoed by others), the model of ad hoc international criminal justice espoused at the ICTY ‘exemplified an approach that was no longer politically or financially viable’....

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Notes on contributors
• Preface and acknowledgements
• 1 Introduction: trials and tribulations at the ICTY
• 2 The strategic purpose of the ICTY and international peace and security
• 3 Prosecuting with pictures: two decades of experience and evolution
• 4 International law and institutional legacy: prosecuting those accused of breaching the legal bounds of war
• 5 Historical record and the legacy of the International Criminal Tribunal for the former Yugoslavia
• 6 Lost in translation? Perceptions of the ICTY in the former Yugoslavia
• 7 Beyond The Hague: prosecuting war crimes in Bosnia and Herzegovina
• 8 History, the ICTY’s record and the Bosnian Serb culture of denial
• 9 Judging their hero: perceptions of the International Criminal Tribunal for the former Yugoslavia in Croatia
• 10 Revisionism, denial and anti-ICTY discourse in Serbia’s public sphere: beyond the ‘divided society’ debate
• 11 International criminal justice and Kosovo: critical legitimacy and impact on a quasi-state entity
• 12 Reflections on the lessons and legacies of the ICTY:rethinking reconciliation in the context of transitional justice
• Index