Yugoslav Tribunal Takes International Justice From Theory to Practice

Monday, 15 February, 2010

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Daniel Barron

As the new International Criminal Court begins its work in earnest, with an expanding list of investigations and the first trial about to get under way, another Hague-based court – the International Criminal Tribunal for the Former Yugoslavia – is moving towards its completion date in 2010.



Over the 14 years since it was set up the Yugoslav tribunal, or ICTY, has tried senior politicians and soldiers accused of the worst wartime atrocities seen on European soil in half a century. Operating under the United Nations mandate, the court has brought together judges and lawyers from around the world to examine evidence from a series of conflicts, where the root causes and responsibility remain deeply disputed, politicised issues in the Balkan states.



In such a controversial environment, it is hardly surprising that the court’s work and even its legitimacy have been questioned. For instance, some critics have accused the tribunal of dispensing victor’s justice – with Serbs as the losers – although the tribunal has also prosecuted Croat, Bosnian Muslim and more recently Kosovo Albanian military commanders.



Other, more considered criticism, has focused on the actual mechanics of running an international justice system. The case against the late Serbian leader Slobodan Milosevic, for example, came under fire for involving an impracticable number of charges, some of which might have been nearly impossible to prove, in a process that could have taken years to complete.



As the first international tribunal since the Nuremberg and Tokyo trials at the end of the Second World War, ICTY laid much of the groundwork for subsequent processes in Rwanda, Sierra Leone and now the International Criminal Court, ICC, the world’s first universal war crimes court. As such, its lessons will carry a great deal of weight.



IWPR asked leading members of the international justice community for their views on the legacy that ICTY will leave when it closes its doors. Interviews with past and present members of the tribunal’s Office of the Prosecutor, defence lawyers and independent human rights organisations revealed a striking breadth of opinions on its successes, and failures too.



While some pointed to the tribunal’s achievements and its contribution to international criminal law, others say the court was flawed from its inception and argue that an arbitrary deadline imposed by the United Nations has undermined the fairness of trials.



DID THE COURT ACHIEVE WHAT IT SET OUT TO DO?



The ICTY was established by the United Nations Security Council in 1993 to try individuals for serious violations of international humanitarian law committed in the former Yugoslavia since 1991.



The tribunal has tried crimes committed during the various conflicts that emerged from the break-up of the Yugoslav Federation in 1991 through to the conflict in Kosovo of 1999.



Its objective was to prosecute those suspected of bearing the greatest responsible for atrocities committed during the Balkans wars in the early Nineties. In doing so, it would bring justice to victims, deter further crimes and help foster peace and reconciliation in the region.



When the court was established, practical issues such as rules of evidence and the choice between the adversarial and inquisitorial systems had to be addressed.



John Ackerman, a defence lawyer at the tribunal and former president of its Association of Defence Counsel, said that ICTY was designed to be a “very Anglo-American kind of court,” and that Judge Antonio Cassese, the tribunal’s first president, had been heavily involved in that decision.



The system worked well in the beginning, he said, not necessarily because it was the best system, but because it was uniform and had a substantive body of precedents.



However, Ackerman said, “Then you had continental judges showing up with the idea of combining the best of both systems, which was just another ridiculous idea. If combining the best of both systems produced a better system of justice, that would have happened 150 years ago.”



Justice Richard Goldstone, formerly a member of South Africa’s Constitutional Court and a chief prosecutor at the ICTY, asserted that differences between the adversarial and inquisitorial systems tended be exaggerated.



“Both systems have as their goal ascertaining the truth. Whether you do it one way or the other ultimately doesn’t matter,” he said.



Anton Nikiforov, political adviser to Carla Del Ponte, insists that the court’s hybrid procedure had “proved to be effective.”



He said the tribunal has achieved amazing results, citing the 161 people originally indicted, although he conceded that the number of people the tribunal actually processed is closer to 135 due to indictees dying and lower-level indictments being withdrawn.



Nevertheless, Nikiforov says, the results of 14 years of work at the ICTY have been amazing for a body that originally had only one trial chamber.



“It is a remarkable achievement by any standard,” he said.



Richard Dicker, director of the International Justice Project at the New York-based group Human Rights Watch, agrees, adding that with a few notable exceptions, the tribunal had been able to get custody of “an overwhelming number” of the individuals indicted.



But Jonathan O’Donohue, of London-based Amnesty International, said the ICTY has tried fewer than 100 of the thousands of persons suspected of crimes under international law in the former Yugoslavia.



ACCUSATIONS OF POLITICAL BIAS



Michael Karnavas, who has served as a defence lawyer in a number of ICTY trials, most recently representing former Bosnian Croat leader Jadranko Prlic, and also current president of the Association of Defence Counsel, said a lack of uniformity in indicting suspects from the region had raised concerns about whether certain ethnic groups are being singled out.



“Croats and Serbs want to know why [former president of Bosnia and Hercegovina Alia] Izetbegovic and [former president of Croatia Franjo] Tudjman weren’t indicted right away. Look how quickly they indicted Milosevic,” Karnavas said.



“The perception on the ground is that some groups are being prosecuted, some are being persecuted.”



Over the years, the ICTY has persistently refuted claims of bias and pointed out that members of all ethnic groups have been indicted and tried. It currently has ongoing cases against a former Bosnian Army commander in chief, who is a Bosniak; several former Bosnian Croat political and military leaders; Albanian former paramilitary leaders from Kosovo and senior police officials from Macedonia. A trial of three Croatian Army generals is also due to start soon.



FAILURE TO ENFORCE INDICTMENTS



Goldstone said that while he had never read of or heard any “serious criticism” of the fairness of the trials, he was aware of some difficulties at the ICTY.



Neither the ICTY nor the ICC has a police force of its own and both rely on national authorities in the countries in question to find and hand over suspects.



“The biggest problem that faced both ad hoc tribunals [Rwanda and ICTY], and is already a problem for the ICC, is enforcement,” Goldstone said. “There won’t be, in any of our lifetimes, an international police force,” capable of enforcing international arrest warrants, he predicted.



The lack of cooperation from the authorities in Serbia has been largely blamed for the failure to capture the Bosnian Serbs’ army commander Ratko Mladic and wartime political leader Radovan Karadzic, both accused of orchestrating the Srebrenica massacre in 1995.



The ICC has already run into difficulties in delivering suspects to the court once arrest warrants have been issued.



Omer Fisher, a researcher with the Balkans team at Amnesty International, expressed concern about the fate of senior indictees who remain at large, including Mladic and Karadzic.



“We don’t think it would ever be appropriate for people like Mladic and Karadzic to be tried anywhere other than the ICTY,” he said.



ICTY’s success in this regard has been limited by external factors – the failure of Balkan states to hunt down and detain suspects believed to be on their territory and deliver them to The Hague. This applies above all to Mladic, who is believed to spend most or all of his time in Serbia, and Karadzic, who is thought to hide out in the borderlands of Serbia, Bosnia and Montenegro.



International pressure on post-Milosevic Belgrade, in particular, has failed to produce either man, although some other high-ranking suspects have been detained. As a result, ICTY Chief Prosecutor Carla Del Ponte has indicated that the Serbian authorities have become significantly more cooperative of late.



While the court was able to enforce the indictment of the late Milosevic –widely regarded as bearing the greatest responsibility for the Balkan conflicts - he died in custody, four years into a trial with no end in sight.



Goldstone said the Milosevic trial had “undoubtedly tarnished the legacy of the ICTY.”



He said that in his my view, “the judges were too lenient with Milosevic, and at the same time he was allowed to demean the judges”.



INCONSISTENCY AND PROCEDURAL FLAWS



Another criticism levelled at the tribunal is that there has been a lack of uniformity of procedures, both over the years of its existence, and in the practices of the different trial chambers.



O’Donohue has said at the ICTY there had been “considerable inconsistency, often unresolved by the Appeals Chamber, concerning definitions of crimes such as rape and murder”.



However, Dicker says it is understandable that there should have been some modifications to the rules along the way.



“I think that the evolution of the court’s rules of procedure and evidence is a work in progress, some of it controversial but nonetheless understandable given that this was really the first tribunal created in 50 years to try these kinds of crimes,” he said.



Karnavas attributes a lack of uniformity and consistency at the court to several factors. For instance, the judges come from a diversity of legal systems, and in some cases simply do not buy into the ICTY’s hybrid legal system, which Karnavas termed a party-driven system where judges serve as “referees” between prosecution and defence.



He suggested that the ICC should have a “bench book” or manual of courtroom procedure, and a training programme for new judges. He also thought the ICC should make sure potential judges have substantial experience on the bench.



The prosecution has also been accused of over-indicting and over-trying suspects. Indictments often contain a long historical context, with defendants charged with several forms of liability in the hope of securing a conviction.



Karnavas argued that the ICTY had attempted to “set out historical truth”, leading to long indictments which were difficult either to prove or disprove.



“Those of us who practice law in courts… know that a court is not capable of finding historical truth. That’s not the place of a tribunal. A lot of time, money, and effort were wasted trying to figure out what this historical truth is,” he said.



He also alleges that defence lawyers have been excluded from crucial decision-making processes such as scheduling. Although he conceded that improvements have been made since earlier days, he insisted that, “Right now the defence is not seen as part of the tribunal.”



CONSEQUENCES OF THE COMPLETION STRATEGY



In recent years, the tribunal has also come under fire for the “completion strategy” according to which the UN Security Council requires the court to complete all first-instance trials by 2009 and all appeals by 2010.



The pressure on the court to finish on time has resulted in judges having to be creative in the courtroom in order to cut down the amount of time trials take.



Fisher is concerned that the exit strategy will prevent certain indictees from facing justice.



“The main message for us is certainly that the ICTY has played a crucial role in trying senior people, but we’ve been consistently concerned about the exit strategy and seeing the work unfinished,” he said.



He described the 2010 deadline as “arbitrary”, and said it was unlikely that the ICTY would complete all of its cases and appeals by that time.



Karnavas said it was just as the tribunal “hit its stride” in the last three or four years that the Security Council began to pressure the courts to finish by 2010.



“The system has changed so radically over the years, and the rights are being eroded slowly to the point where it’s almost an aspiration that you could get fair trial, rather than a reality,” he said.



“None of the judges would want to be tried in this fashion. No one in the courtroom would want that.”



“We’re not going to complete the task within time. It’s impossible. It cannot be done,” Karnavas warned, suggesting that it was impossible to follow the UN Security Council’s requirements and at the same time serve the interests of justice.



“This completion strategy is going to undo many of the good things that have been done,” he said.



Ackerman was even more critical of the completion strategy, and said that what has happened at the ICTY happens in many courts.



“The funding source takes over and replaces justice with expediency.”



The upshot of what Ackerman described as a “misguided effort to speed up proceedings” has been that “the rules have changed, to the detriment of the accused.”



O’Donohue is also concerned about the consequences of the completion strategy.



He also said that while the ICTY had inspired national courts in some countries in the former Yugoslavia to conduct investigations and prosecutions of people suspected of war crimes and crimes against humanity, the completion strategy “means that there will no longer be a stick to take cases away when national proceedings fall short.”



He cited numerous problems with national courts, including a failure to define all the crimes in the ICTY statute as crimes under national law, and a lack of adequate victim and witness protection and support.



Fisher also expressed reservations about the ability of national jurisdictions to deal with serious crimes under international law, and said that there had been an acceleration of requests to move cases from the ICTY to be tried in national courts since the exit strategy was implemented.



Dicker noted one positive development to come out of the completion strategy - the introduction of witness testimony in written form – was a “potentially valuable” innovation in terms of saving time, but stressed there was a need for a right of the defence to cross-examine.



ICTY’S LEGAL LEGACY



Most of the experts interviewed seemed to agree that the ICTY has made positive contributions to the field of international criminal law.



Dicker points out that the ICTY was the first internationally created war crimes tribunal since the end of the Second World War, when the Nuremburg and Tokyo tribunals were set up by the victorious Allied powers to try German and Japanese war criminals.



“There hadn’t been anything comparable since the 1940s. There was nothing by way of practice or precedent,” he said.



He said that the court’s “outstanding positive feature” is that “it has shown over the 14 years of its existence, the viability of an internationally created judicial institution mandated to investigate and prosecute the mass slaughter of civilians, the use of rape as a weapon of war, ethnic cleansing”.



Perhaps more importantly, Dicker said, the ICTY “brought to life provisions of international law that had been dormant or simply relegated to the pages of the Geneva Convention”.



The result has been what Dicker termed “an absolutely essential jurisprudence”, which he says will serve as a reference point for “all subsequent ad hoc and permanent international courts, and national jurisdictions.”



Others cited similar positive accomplishments.



“The first success, in my view, is the fact that the ICTY and ICTR [International Criminal Tribunal for Rwanda] have demonstrated that international criminal courts can hold fair trials,” said Goldstone.



He also pointed out that, until the inception of the ICTY and ICTR, humanitarian law had stagnated. “It was law that wasn’t used,” Goldstone said. “It is to the huge credit of the ICTY that, notwithstanding that, they continued to use and refine it.”



Chief among those refinements, according to Goldstone, are what he called “the unhappy distinction” in international law between protecting civilians in international armed conflict versus in domestic armed conflict, which he said had been “obliterated.”



Goldstone singled out the ICTY’s achievements in the arena of gender-related crime, saying, “The ICC has taken it further than the ICTY, but the way was opened by the ICTY and [Rwandan] ICTR.”



According to Goldstone, the two tribunals confirmed rape as a component of genocide, established an international definition of rape, and established case law regarding rape that is now used in domestic jurisdictions.



Goldstone also cited the creation of the ICC as one of the most important legacies the ICTY will leave. “But for the sort of successes I’ve been talking about, there would be no ICC,” he said.



John Washburn, the American convenor for the independent Coalition for the International Criminal Court, said that as a result of work by the ICTY and ICTR, crimes such as mass rape are dealt with extensively in the ICC’s founding statue.



Karnavas admitted that the court has had some success in contributing to international law. “Right now, it’s very clear that the culture of impunity is not going to be tolerated in the international community,” he said.



He described the tribunal’s record of jurisprudence as “spotty - some of it is rather good, some of it is way out there,” and predicted that the ICC would use ICTY case law sparingly.



While Ackerman conceded that the court had broken new ground by putting into practice what had previously been a purely theoretical discussion about international criminal justice, he argues nevertheless that this will not translate into future practice.



“The meat that was put on the bones here in terms of international jurisprudence is really quite important,” he said. “Unfortunately, I think it will largely be forgotten.”



LESSONS LEARNED



Yet most of the people interviewed for this report agreed that lawmakers at the ICC can learn many lessons from the experience of their counterparts at the ICTY.



Dicker echoes Karnavas’s call for judges at the trial level in international courts to have previous courtroom experience - either as judges, defence lawyers, or prosecutors.



He added that the ICTY had provided “lessons to be learned as to how respect for the rights of accused needs to be calibrated with the overall interests of justice.”



Washburn agreed that there are a number of lessons that the ICC can learn – and it has already made some changes, for example providing separate pre-trial chambers to deal with initial motions and appeals in order to avert the kind of complaints heard at the ICTY about trials taking too long to get started.



The ICC has also learned about the physical requirements of conducting a proper trial, he said. These include buildings designed to prevent defence and prosecutions lawyers from running into each other during the trial, with separate lifts, and adequate conference and computer facilities for defence teams near the courtrooms.



“It makes for a much fairer trial,” Washburn explained.



Washburn said that due to staff carry-over from the ICTY and ICTR to the ICC, the new court was experiencing some of the same problems, including inadequate consultation with defence lawyers on important matters.



The problems have already led to the creation of the International Criminal Bar Association, with support from bar associations in the US, UK, and France.



Ultimately, as Dicker pointed out, it may be long time before the ICTY’s legacy becomes fully apparent.



“The Nuremburg trials did not have an immediate effect in post-war Germany. It was decades later that a new generation was able to access the Nuremburg judgements and make them meaningful,” he said. “Time will tell.”



Daniel Barron is an IWPR intern based in London.