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Trials and Tribulations: Politics as Justice at the ICTY

Frederik Harhoff, a justice at the International Criminal Tribunal for the Former Yugoslavia (ICTY), recently charged that the American presiding judge at the tribunal pressured his colleagues to overturn decisions related to war crimes—cases in Croatia and Serbia. Harhoff’s allegations subsequently triggered a number of similar accusations of political interference by tribunal insiders and observers. All of this reinforced what many observers have claimed throughout the ICTY’s twenty-year existence—that to unacceptable degrees, the tribunal’s work is determined not by impartial standards of justice, but by the great powers’ political interests.

Sparking the latest controversy is a series of decisions over the past nine months that have overturned a decade’s worth of the ICTY’s own jurisprudence on the concept of command responsibility, i.e., the legal precept that a superior officer has “criminal responsibility [for a war crime] if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.” It was on the basis of command responsibility that numerous high-ranking officials involved in the Yugoslav wars of the 1990s were indicted, tried, and found guilty at the tribunal.

Yet in three decisions handed down over the past year regarding high-ranking Croatian and Serbian defendants, the ICTY has essentially thrown the notion of command responsibility out the window, now in effect ruling that superiors can be found guilty of war crimes only if they give specific orders for those crimes to be committed. Veteran Balkan journalist and ICTY expert Chuck Sudetic has suggested that Hitler would probably have gotten off if charged under the ICTY’s new standards, and the Economist summed up the views of many when it recently noted that “the credibility of the International Criminal Tribunal for the Former Yugoslavia in The Hague is in shreds.”

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The reversal in the ICTY’s approach to command responsibility is in fact only one aspect of a process that has been severely flawed from its inception. From selection bias in terms of whom its prosecutors indict to long and exorbitantly expensive proceedings, the ICTY has been so contradictory in its actions that even its most enthusiastic supporters have now become disenchanted.

At the very heart of the tribunal’s problem, however, is the undermining of what is advertised as international justice by great-power interests. It has long been more or less clear that, from the perspective of Washington and other Western capitals, the ICTY functions as a weapon in the arsenal of increasingly militarized foreign policies, which involve options ranging from economic sanctions to drone attacks, and the ICTY has found it hard to resist going along with the geopolitical priorities of its sponsors. As one of the tribunal’s founders, M. Cherif Bassiouni, openly admitted in 2000, were he the chief prosecutor he’d “feel compelled to go along with the United States.” Moreover, policymakers have made no effort to conceal their belief that support for international legal bodies such as the ICTY is contingent upon how much control they have over them. With regard to the International Criminal Court (ICC), for instance, former US Deputy Defense Secretary Paul Wolfowitz openly admitted in 2003 that the US did not support the ICC because it did not have “the right political supervision over it.”

Although the political manipulation of what are meant to be impartial international courts is problematic enough, numerous other problems confronting the ICTY raise important questions about the ultimate utility of such institutions in promoting justice and reconciliation in post-conflict societies. While prosecuting the perpetrators of serious crimes is inarguably a moral responsibility, the manifold failures of the ICTY and other international tribunals to convince the affected populations, societies, and states of the legitimacy of the “justice” imposed on them suggests the need to consider other methods of promoting stability and reconciliation.

 

The political manipulation of international justice was not of course invented in the Balkans. In the midst of World War II, for instance, the Roosevelt administration covered up evidence that Soviet forces had executed some twenty-two thousand Poles in the Katyn massacres because it did not want to offend Joseph Stalin while his support was needed for the wars against Germany and Japan. In the 1980s, the US prevented attempts to impose sanctions on Saddam Hussein’s Iraq for using chemical weapons against Iranian forces and his own Kurdish population because it believed that a victory for Tehran over Iraq would not be compatible with US interests in the Middle East. A decade later, as geopolitical winds shifted, and after Madeleine Albright said on 60 Minutes that the deaths of half a million Iraqi children were worth the price of getting Hussein out of power, Washington then began an unsuccessful push in the UN Security Council to have a special tribunal set up to indict the Iraqi dictator for war crimes. In a similar dynamic, Slobodan Milosevic remained unindicted from 1995 to 1999 because he was considered a “guarantor” of the Bosnian peace process.

The twists and turns and ever-present hypocrisy in Washington’s treatment of the Hussein regime have been in ample evidence in the Balkans as well. The US has used both active and passive means to get its way in terms of the ICTY’s direction and activities by turning over intelligence and evidence for people it wanted convicted, and withholding evidence implicating individuals considered allies or clients. As Charles Trueheart has written in the Atlantic, Washington has gotten its say “by simply turning on or off the faucets of information and cooperation sought by the tribunal. In the minuet of information-sharing and prosecutorial shoptalk the United States made sure that it always knew what was going on in The Hague, and that its preferences were known.” At the ICTY, in practice this has meant ensuring that the right people are put into position to implement Washington’s guidelines. Thus, for instance, the current president of the ICTY, Theodor Meron, was described in a cable from the US Embassy in The Hague in 2003 as “the Tribunal’s preeminent supporter of USG efforts.”

As early as 1996, Washington was already obstructing ICTY efforts to investigate actions during the Croatian conflict that might prove embarrassing to the US. A New York Times report early in 1999 noted that despite tribunal requests over the course of a three-year investigation into war crimes committed during Croatia’s Operation Storm (widely considered to be the largest single case of ethnic cleansing during the Yugoslav wars), “the United States has failed to provide critical evidence requested by the tribunal . . . adding to suspicion among some there that Washington is uneasy about the investigation.” Part of Washington’s reluctance was due to the fact that retired US military officers helped train and supervise the Croatian forces involved in the offensive—a point the indicted Croatian officers tried to use in their defense.

While it was able to slow-walk the process in this instance, however, when Washington wanted the ICTY to act, it could do so with impressive rapidity. In March 1999, NATO launched a bombing campaign against the then Federal Republic of Yugoslavia; by May, the ICTY had indicted Slobodan Milosevic along with two other Serbian generals. (The scenario was replayed in June 2011, when the ICC indicted Muammar el-Qaddafi in the midst of NATO’s operations in Libya.) Another tactic has been acting when an issue becomes moot. Thus, in November 2000, ICTY prosecutor Graham Blewitt noted that there was enough evidence to indict former Croatian President Franjo Tudjman for war crimes; Tudjman had conveniently died a year earlier, so the issue was moot. On October 22, 2003, a spokesperson for the ICTY announced that Bosnia’s former Islamist president, Alija Izetbegovic, was under investigation for war crimes; the spokesperson also announced that the investigation was being closed because Izetbegovic had conveniently died three days earlier.

When allegations and then evidence emerged that criminal elements in the Kosovo Liberation Army had harvested organs from captured Serbs (and perhaps even Albanians accused of being Serb collaborators), the former ICTY chief prosecutor, Carla Del Ponte, claimed that NATO obstructed her investigation attempts. It later emerged that the ICTY had destroyed evidence related to the case.

Other contradictions and anomalies abound. Croatia, for instance, probably lost two years in its EU accession efforts due to the ICTY’s claim that it was not cooperating with the tribunal. In Kosovo, on the other hand, the ICTY let an indicted war criminal continue with his political career for the sake of maintaining “stability.” American officials also took it upon themselves to determine which ICTY indictments should be acted upon, and when. Credible reports and investigations have revealed that the late Richard Holbrooke made a secret deal with Radovan Karadzic in June 1996 for the latter to leave public life, in return for which international forces would not pursue, apprehend, or turn him over for trial.

Yet the most significant and questionable about-face in the ICTY’s history has undoubtedly been the recent decisions that have essentially gutted the doctrine of command responsibility. In the cases of Croatian generals Ante Gotovina, Ivan Cermak, and Mladen Markac, Serbian general Momcilo Perisic, and Serbian intelligence officials Jovica Stanisic and Franko Simatovic, the ICTY now finds that these individuals (several of whom have been said to have close ties to US intelligence agencies) were not responsible for war crimes committed by their subordinates during the Yugoslav wars. It is widely assumed that the turnaround is due to the fact that many Western capitals have realized the very serious implications command responsibility could have for their own military actions, and that since the balance of economic and political power is rapidly shifting away from the US and Europe toward other parts of the world, it would be better to avoid legal and judicial precedents about the use of military force that might ultimately be used against them.

 

In May 2013, the African Union accused the International Criminal Court of “hunting Africans.” The charge was based on the fact that ninety-nine percent of those indicted by the ICC have been (sub-Saharan) inhabitants of the continent. Special UN tribunals formed to prosecute crimes committed in Rwanda and Sierra Leone have only reinforced Africans’ suspicions that a witch hunt is taking place.

The Serbs haven’t fared much better at the ICTY than Africans have at the ICC. As of December 2012, Serbs had received, in terms of years, seventy-eight percent of the total sentences doled out. By way of comparison, four percent of the ICTY’s sentences have gone to individuals accused of committing war crimes against Serbs. Although the trials of the Bosnian Serb political and military leaders Radovan Karadzic and Ratko Mladic, the Croatian Serb political leader Goran Hadzic, and the Serbian politician Vojislav Seselj are still in progress, it is a foregone conclusion that at least three of them will be found guilty, which means that ultimately Serbs will account for closer to eighty-two percent of the sentences the ICTY has pronounced. This pattern has been repeated at the level of the Bosnian domestic court system as well; according to Bosnian journalist Slobodan Durmanovic, as of February 2013 more than ninety percent of the sentences Bosnian courts have pronounced have also gone to Serbs convicted of war crimes against Bosnian Muslims (and to a significantly lesser extent, Bosnian Croats).

The problem here is not whether those indicted have gotten what they deserved; rather, it’s that the tribunal’s prosecutorial strategy has been demonstrably, and overwhelmingly, directed at investigating crimes against some categories of people and ignoring crimes committed against other categories of people. Such a prosecutorial strategy had the advantage of neatly supporting Washington’s wartime clients—but it has little to do with providing equal justice to the innocent victims of the wars regardless of their ethnicity. As David Harland, a former UN official who witnessed the Balkan wars firsthand, summed up the ICTY’s prosecutorial strategy, “Too bad if you were a Serb victim of any crime in the former Yugoslavia. More Serbs were displaced—ethnically cleansed—by the war in the Balkans than any other community. And more Serbs remain displaced today. Almost no one has been held to account, and it appears that no one will be.”

Moreover, as people in the Balkans and in Africa would undoubtedly agree, there is something inherently objectionable about rich Americans and Europeans imposing tribunals and court processes on states and ethnic groups to which they would never subject their own citizens. The former French defense minister Alain Richard once noted that French military officers would “never” go to The Hague to participate in what he called a “justice spectacle.” And as a NATO official said in 1999, in response to a reporter’s question as to whether NATO would submit to having its own actions during the Kosovo war investigated for war crimes, “without NATO countries there would be no International Court of Justice, nor would there be any International Criminal Tribunal for the former Yugoslavia, because NATO countries are in the forefront of those who have established these two tribunals, who fund these tribunals, and who support on a daily basis their activities.” Those who pay the piper, as they say, call the tune.

 

By the time the ICTY shuts down in 2016, it will have been in existence for some twenty-three years—six times longer than the Nuremberg trials and more than eight times longer than the Tokyo tribunal. The tribunal’s costs have been astronomical; the final price tag will probably run over $2 billion. Legal scholar and anthropologist Robert Hayden has estimated that the ICTY will have spent about $14 million per individual trial. The ICTY’s budget for 2012–13 was approximately $251 million. By way of comparison, this year’s total annual budget of the UN High Commission for Refugees, the primary international agency tasked with assisting some three hundred thousand refugees and internally displaced persons in southeastern Europe, is $50.9 million. Similarly, at a cost of more than $1 billion, the International Criminal Tribunal for Rwanda has convicted fewer than one hundred people.

The ICTY has also spent much of its moral and some of its actual capital in trying to stifle any criticism of the decisions this king’s ransom has produced, a highly problematic strategy for anyone raised in a democratic society. In the US, members of Congress and even the president regularly express their disagreement with Supreme Court rulings, and judges are of course allowed to publish dissenting opinions. Yet when a Swedish television station broadcasted a documentary about the Srebrenica massacres (which the ICTY ruled was a case of genocide), the spokeswoman for the ICTY wrote a threatening letter telling the network not to air it because elements of the program ran “counter to rulings made by the ICTY.” Imagine the Supreme Court telling theaters not to show Django Unchained because it contradicts Dred Scott vs. Sandford, or that The Producers should be banned from Broadway because of its satirical take on the Holocaust, and you’ll begin to see the absurdity of the ICTY’s high-handedness.

One of the ICTY’s barely concealed ambitions has been not only to dispense justice but to write the “official history” of the Yugoslav wars. This is a task serious historians would probably doubt courts and lawyers are qualified to assume. Moreover, the ICTY’s attempt to be historically comprehensive and authoritative is a major reason for the exorbitant amount of time it takes to try a case there. At the ICTY, defendants can forget about their right to a speedy trial. The aforementioned Serbian politician Vojislav Seselj voluntarily turned himself in to The Hague in February 2003. Ten years later he is still waiting for his trial to conclude. The four-year trial of Slobodan Milosevic, widely billed as “the trial of the century,” ended somewhat embarrassingly for the court when he died in his prison cell in March 2006, with no verdict having yet been issued. Part of the reason for why the trial dragged on so long is that ICTY lawyers decided to start the prosecution with testimony about Serb nationalist tracts—from almost two centuries ago.

Nor, despite this focus on “history,” can the ICTY claim much credit for forcing the region’s peoples to confront the past and condemn the crimes perpetrated on behalf of their particular group. Denial of war crimes “committed in defense” of one’s own group remains a widespread problem. In Serbia, individuals who in reality were little more than thugs and common criminals are often seen as national heroes. In the 1990s, a Croatian Supreme Court justice categorically claimed that “a Croat cannot commit a war crime.” In April 2010, a Bosnian Muslim general convicted of responsibility for war crimes against Croats and Serbs was given a state funeral in Sarajevo with full military honors. In April 2013, a Macedonian convicted of war crimes was welcomed home to Skopje upon his release by several thousand people, including the prime minister.

Thus, instead of marginalizing or stigmatizing individuals and movements implicated in the commission of war crimes, evidence from both the Balkans and Africa suggests that international tribunals have had the opposite effect—that the political movements and parties represented by convicted and alleged war criminals often gain from these trials, such as was apparently the case in Kenya, given the electoral success of Uhuru Kenyatta, who became president in 2013 after having been accused three years earlier of crimes against humanity by the ICC; or the rebound Slobodan Milosevic’s party enjoyed once his trial started being televised in Serbia.

It is also difficult to sustain the argument that international tribunals have a deterrent effect. The indictments issued by the ICTY in Bosnia did not prevent atrocities in the Kosovo conflict; the indictments for the Kosovo conflict apparently did not influence the actions of President Omar Hassan al-Bashir in Sudan; and the indictment of Bashir does not seem to have had much of an impact on President Bashar al-Assad in Syria.

But it is not just in the Balkans, Africa, and the Middle East that denial is a problem. In an age of waterboarding, black sites, remote drone attacks, Abu Ghraib, and Guantánamo, the Western conceit that only people in these regions should be the objects of “international justice” is increasingly difficult to sustain. Yet there is little evidence that Western publics are willing to confront such difficult questions. When journalist Amina Ismail asked White House press secretary Jay Carney at a briefing in April, “Do you consider the US bombing on civilians in Afghanistan earlier this month that left eleven children and a woman killed a form of terrorism?,” both Carney’s confused response and the furor resulting from the question showed that the US has yet to engage in any serious soul-searching about the “collateral damage” its military actions abroad cause.

All this suggests that the future of “international justice” is problematical. The great powers will undoubtedly continue to refuse to play by the rules they insist on imposing on other states. Three members of the UN Security Council (China, Russia, and the US), for instance, have refused to ratify the treaty establishing the ICC. The European Union does not have the political weight to give the ICC widespread legitimacy; and most important states in the Islamic world (for instance, Egypt, Indonesia, Turkey, Pakistan, and Saudi Arabia) have similarly refused to ratify the Rome Statute of the ICC.

Although the human rights movement over the past several decades has undoubtedly achieved much by putting the issue of international justice on the world agenda, given the ICTY’s dismal record and the likely unwillingness of the great powers to treat the ICC any differently, many scholars and legal experts argue for other means of establishing peace and stability in post-conflict states. Professors of international relations Jack Snyder and Leslie Vinjamuri, for instance, have argued that truth commissions and amnesties are more effective in promoting stability and preventing future conflict than prolonged and polarizing trials, and that when trials are absolutely needed it is better for local courts to conduct them. Similarly, Mahmood Mamdani, professor of government at Columbia University, has also been skeptical of the supposed benefits of war crimes trials, claiming that they only treat the symptoms of civil conflict, and do not address their root causes.

Clearly, there is no easy solution for dealing with serious human rights issues such as those addressed by international courts and tribunals, and the debate should continue about which approaches to dealing with war crimes are both effective and morally acceptable. But if and when war crimes trials are unavoidable, the experience of the ICTY suggests that their prosecutorial strategies should be transparent, that they should be limited to trying specific crimes rather than writing history, and that great powers should not influence the course of justice to satisfy their geopolitical preferences. Achieving these goals in the real world, however, is relatively unlikely.

Gordon N. Bardos is a Balkan politics and security specialist based in New York.

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