On May 25, 1993, U. N. Security Council Resolution 827 established an international tribunal charged with prosecuting violations of international law arising from the armed conflicts in the former Yugoslavia. Not since the Nuremberg and Tokyo trials, following World War II has an international court tried individuals accused of crimes against humanity, war crimes, and genocide.
The International Tribunal for the Former Yugoslavia (ICTFY), which was established at The Hague, Netherlands, is widely seen as an important step toward the deterrence of crimes, the establishment of the firm rule of international law, and the promotion of world peace. Yet, from its inception, the tribunal has generated controversy among supporters and detractors.
Among those who believe that the tribunal idea is sound, the principal concerns are that such an institution be established on a sound legal basis, that it adhere to an acceptably high standard of due process, that it administer equal and dispassionate justice, and that it be perceived by nations and individuals to be legitimate, fair and effective. Unfortunately, the Yugoslavia tribunal has not yet met all these standards–and may never be able to meet all of them in the fullest sense.
A discussion of some of the realities that face the ICTFY demonstrates why the task of making the tribunal work is so difficult–and why it is vital that it be accomplished. None of the four requirements that the tribunal must meet is easily achieved, and, in some cases, success seems unlikely. Many supporters of international humanitarian law are convinced, however, that, so long as the court does no harm, it must continue to pursue its original goals. This position supports the general idea of the rule of law, without reference to the circumstances.
Ordinarily, of course, justice is supposed to be above the particularities of any case. Yet the nature of the circumstances in the case of the former Yugoslavia may undermine the ICTFY’s credibility and render it ineffective in obtaining justice and promoting the concept of international humanitarian law. Justice must be predicated on detachment and impartiality. But the ICTFY is essentially a first attempt at administering such justice, and the peculiarities of the test case have to be kept from contaminating the process.
The U. N. panel of experts that recommended the establishment of the tribunal had concluded that “willful killing, organized massacres, torture, rape, pillage, and destruction of civilian property” had all been employed in the former Yugoslavia. In eastern Bosnia, these atrocities were war crimes that breached the Geneva Conventions and other international laws governing conflicts between nations. They were also breaches of international humanitarian law, as formulated at Nuremberg and elsewhere.
When these tactics were employed by Bosnian Serb forces as part of the program of so-called “ethnic cleansing” directed against Bosnian Muslims and other non-Serbs, they also constituted genocide. The Genocide Convention is specifically designed to cover crimes against groups, as opposed to crimes against humanity which “do not necessarily involve offenses against or persecutions of groups. ” But the Convention also limits the crime of genocide to actions occurring between states. Under the tribunal’s mandate, however, ethnic persecution is treated as an “international” crime even if it has occurred within a single state.
This is a considerable expansion of international law, yet, through it, ICTFY “exemplifies a new understanding of accountability that makes heinous and systematic rights violations an international matter. ” The thinking behind this change in the interpretation of international humanitarian law is based on the easily observed fact that “victims of ethnic persecution are citizens who have been rendered aliens within their own homeland,” and their status, accordingly, “transcends to the international sphere. ” Despite a great delay in selecting a chief prosecutor, Richard Goldstone was appointed in July, 1994.
For such an unwieldy forum, the tribunal has proceeded quite swiftly. As of July, 1996, 75 persons had been indicted by the tribunal–though only 10 of them were in custody. The first trial, “that of Dusan Tadic, the civilian accused of participating in the torture of Muslim detainees,” began in May 1996. Yet more than $80 million had already been spent on the court by the time this trial began. Thus, the question of continued financial support for the project is also important, and it hinges on U. N. General Assembly members’ perception of the fairness and effectiveness of the courts.
Comparisons of the ICTFY with the Nuremberg and Tokyo trials are frequently made in discussions of the current tribunal. Such comparisons have little value as precedents, but they do provide insight into the problems inherent in the earlier tribunals. Despite the considerable differences in their circumstances, the Nuremberg and Hague tribunals face problems that are quite similar. These similarities point up some of the drawbacks of the concept of international criminal courts. Such problems may be capable of resolution, but solutions are far from being realized.
At Nuremberg (and Tokyo), for instance, the trials were a postwar phenomenon, while the Hague tribunal began sitting when the war was still in progress. Many hoped that the initiation of the tribunal would aid in securing peace in the region. Thus, at Nuremberg, prosecutors “sought justice after peace [while] the Hague seeks peace through justice. ” This is a significant difference, since it raises questions about possible motives behind almost every one of the court’s actions–motives that may impinge on the objectivity of the proceedings.
In such matters as the selection of individuals or types of crime to be prosecuted, for instance, the court may believe that it has an obligation to the peace process that takes precedence over its obligation to justice. These are precisely the sort of considerations that usually militate against any attempt at punishing such crimes, as “so-called realpolitik considerations” prevail, and rights violations are ignored in the hope of solving the larger problem. The biggest problem that emerges is that, most often, the political and military leaders benefit from these peace concerns.
The fear that such leaders will be able to sabotage the process of conflict resolution results in their being “granted international legitimacy” in order to facilitate the greater goal. Unfortunately, this is precisely what has happened in the case of the ICTFY. Beginning in 1992, as international sanctions began to have an effect on the various Serb forces engaged in scattered conflicts, Serbia’s President Slobodan Milosevic began to support the Vance-Owen plan–the forerunner of the Dayton-Paris accords.
Milosevic gradually jettisoned his “former disciples and agents in ‘Western Serb Lands,'” in order to position himself properly with the West as the Serbian hope for peace. Milosevic successfully completed this transformation and, along with Croatian President Franjo Tudjman, became a primary force in securing the negotiated end to hostilities. Many observers believe, however, that “these two men bear principal responsibility for the last five years of carnage.
They ask if this means that justice will not be extended to cover as many of the guilty parties as possible, or ensures the escape of those with the broadest responsibility: “Most of those responsible for war crimes remain at large,” and most remain unindicted as well. The process, some say, has become irretrievably politicized. This argument is reinforced by the fact that, in the wake of the December, 1995 Dayton Accords, the guarantee of free elections and other political prerogatives of sovereign states might be infringed upon by arresting all the accused parties since some are political leaders.
This was especially important in the cases of Radovan Karadzic and Ratko Mladic, two indicted Serbian leaders who had not been taken into custody. As Guest noted, the purpose of the Dayton-endorsed elections was to “sideline nationalists and open the way for a more moderate brand of Serb politician. ” As head of the Serb Democratic Party, Karadzic and, even if he stepped aside, his surrogates played too important a role in the political process to be ignored. Individuals may be indicted and arrested, but banning an entire party “threaten[s] the integrity of the elections.
This reluctance to harm the political process played an important role in the reluctance of the U. N. forces to seize Karadzic and Mladic. Another significant related problem is that some of the parties involved refuse to recognize the authority of the ICTFY. The “Bosnian Serb Republic,” for example, had no intention of recognizing a body that would not recognize the existence of that polity in the first place. This, of course, touches on the problem of national sovereignty and self-determination.
While such claims may be understood to be self-justifications for genocide in the case of the former Yugoslavia, they will be, nonetheless, important factors for any future tribunals dealing with the application of international criminal law. Thus, critics of ICTFY say that “both the retention of political control” by those responsible for crimes and criminal policies and the “politics of maintaining the fragile Dayton accords” have rendered the tribunal all but impotent. The critics say that this becomes perfectly clear on considering the first trial that was conducted by the tribunal.
The defendant, Tadic, has been described as “no more than a thug of the lowest rank, having held no official governmental or military position. ” Many people have inferred from this trial and from the failure of the tribunal to even consider indicting certain higher level individuals that the political effect has taken hold in the ICTFY and that justice will amount to the punishment of some of the foot-soldiers of the ethnic cleansing campaigns, while ignoring those who devised these horrors. The tribunal was, however, designed to avoid just this kind of result.
From the beginning, its function was considered to be the punishment of individuals–at every level of involvement in war crimes, genocide, and other crimes against humanity. This was deliberate because those involved in the process understood that it was necessary to create a strong distinction between a “spontaneous outburst” of ethnic feeling and what was, in the former Yugoslavia, a “conflict deliberately provoked by power-hungry leaders through a campaign of indoctrination and misinformation aimed at political homogenization of ethnic groups through the creation of a common ‘enemy.
Such a design also allowed, however, for assigning individual responsibility at any level where it might be appropriate. This was important because, as Dimitrijevic shows, the evolution of the crimes in the area may have been the result of the leaders’ campaigns, but the crimes were often the result of individual initiative. Yet, overall, the prevailing notion that the wars in the former Yugoslavia were generated by centuries of pent-up tribal hatred was allowed to flourish because, essentially, this was what the leaders of Serbia and Croatia wanted their followers to believe.
The idea of victimization was central to formulating the political-military-genocidal strategies employed in the area. Serbian leaders argued that they had exhausted peaceful means in trying to resolve disputes after centuries of oppression and genocide at the hands of their neighbors. Thus, they were forced to turn to war. Since this was a “war for survival” and self-determination in the “creation of a new state,” this meant no rules. In such a war, “mercy and sentiment are out of place, even towards one’s conationals [and[ individuals are of no concern, neither as victims nor as perpetrators. ”
Later, as a result of the undeniable Serb aggression, the Croats became genuine victims. But, according to “popular argument” in Croatia, the Serbs, by their aggression, “had forfeited the protections owed to ordinary combatants and civilians,” and this argument proved to be “a formula for lawless cruelty” in their response. Needless to say, the Croatians also saw themselves as engaged in a war for survival. When Croat atrocities committed against Bosnian Muslims began to come to light and when the Serbs’ early tide of victories turned, these victimization arguments became increasingly strident.
Both sides believed that their victimization and their struggle for self-determination entailed a justifiable “wholesale dismissal of criminal responsibility. ” These attitudes had enabled the commission of crimes which shocked the world. They enabled them to provide psychological justification for the perpetrators and to motivate the planners. The primary justifications were at the level of the sense of outrage that was engendered in people who were persuaded that they were victims (or who actually were victims).
But the overriding belief was that perpetrators of such crimes were untouchable. Certainly, the absence of accountability has always been an important factor in such crimes. Without the sense that they could act with impunity, “few would be willing to engage in human rights abuses,” and those who were already familiar with repressive political regimes in the former Yugoslavia believed that, just as political and military leaders persistently escaped punishment for such deeds, anyone who served their caused and followed their orders would be similarly immune.
The planning aspect of the atrocities in the former Yugoslavia is especially important, since it is key to the concept of individual responsibility that underlies the tribunal’s operations. In an important sense, the tribunal is concerned with the prosecution of the major war criminals, those who have responsibility for inciting, planning and ordering the systematic employment of human rights abuses of all kinds as a strategic means of waging war and as aspects of the ethnic cleansing initiative.
The Nuremberg court was also dedicated to the prosecution of “major war criminals,” a distinction that meant that only 24 people were accused and scheduled to be tried before the court. That number was, however, considered to touch very few of the major criminals involved in those abuses. Thus, the ICTFY has taken care to keep the definition of criminal responsibility at the higher levels fairly open. An excellent example of the necessity of this approach is found in Niarchos’ analysis of the problems of prosecuting rape at The Hague.
As she notes, rape is often dismissed as a random act committed by individual soldiers. The truth that has emerged from the Yugoslav witnesses, however, has been that rapes there “appear to be carried out as a deliberate policy. ” At least 80 percent of the reported rapes took place in custodial facilities, and many of the accused attackers have reported that they were ordered to commit rape “to ensure that the victims and their families would never want to return to the area. ” Clearly, this makes the crime of rape a much more complicated matter than it already was.
Not only does it represent a deliberate policy, but it is revealed as a strategy of the ethnic cleansing initiative as well. In dealing with questions of individual responsibility, therefore, all the crimes that have been revealed in the former Yugoslavia lend themselves to prosecution at several levels. Yet the attempt to define individual responsibility generates a great deal of confusion. In defending the choice of Tadic as the tribunal’s first trial, Guest opened by asserting that “Tadic played a more important role in ethnic cleansing than his rank would suggest.
Tadic was a cafe owner who, apparently, “out of resentment against his more successful Muslim neighbors,” went to Omarska, where “the Muslim leadership and intelligentsia from Northwest Bosnia were taken to be murdered,” and served as a prison guard. The charge against Tadic revolved around an incident in which he forced a prisoner to castrate other prisoners with his teeth. As Guest says, there were witnesses to the act and it “traumatized the entire camp population,” and, he concludes, “Tadic’s role should not be underestimated. ”
The fact that Guest feels compelled to justify the prosecution of Tadic by elevating the importance of his role in the ethnic cleansing campaign speaks to the problem of individual responsibility and the trials at The Hague. Guest clearly feels uncomfortable with the fact that Tadic was the first to be prosecuted, and wishes to inflate the importance of his role compared to a greater level of responsibility. If the presidents of Serbia and Croatia are not being indicted, at least those who are indicted should, Guest seems to argue, be responsible for more than just their own actions.
The fact that Tadic’s sadistic crimes are horrible in themselves is not sufficient for Guest or, it seems, for the critics of ICTFY that he is answering. But this is the underlying problem with assigning individual responsibility and making accountability for past crimes the basis on which nations can be rebuilt. As Dworkin notes, the idea, which goes back to Nuremberg, is that by accusing and trying those leaders who have the broadest responsibility for the crimes, “you remove the stigma that would otherwise attach to the nation in whose name the acts were carried out.
In the case of the ethnic conflicts in the former Yugoslavia, this logic seems even more pertinent, as the peoples involved need to “learn not to judge each other guilty merely by virtue” of ethnic group membership. If those who encouraged the atrocities are removed from the circulation, this will facilitate the rebuilding of society in the region. But where can such levels of responsibility stop? In the case of crimes such as the murder of more than 6,000 Muslims in the Bosnian town of Srebrenica, in which Mladic and Karadzic have been implicated, the arrest and conviction of these men is intended to create some sort of resolution.
Dworkin notes that “it is neither practicable nor desirable” for international courts to pursue all the cases of atrocities, “not least because of the intrusion into national life it would entail,” Goldstone and the ICTFY have, therefore, attempted to establish the degrees of responsibility at which convictions need to be pursued on the international level. As Akhavan noted, on behalf of the prosecutor’s office, for whom he is a legal advisor, “the symbolic effect of prosecuting even a limited number of such leaders before an international jurisdiction would have a considerable impact on national reconciliation.
In another context, Akhavan has argued that, even “absent [the] arrest and surrender to the Tribunal” of many leaders such as Mladic and Karadzic, their indictment and “the consequent stigmatization, deprivation of liberty, and removal from public office, has had the effect of an ‘interim justice. ‘” This raises another significant difference between the Nuremberg and ICTFY courts, which is that, after its defeat, Germany was entirely in the hands of the victors, while, in the former Yugoslavia, “no one is in complete control of the territory or capable of seizing those who [are to] be prosecuted.
The problems that this raises are twofold. First, the failure of the U. N. to arrest those who have been indicted demonstrates a lack of will, and undermines the credibility of the tribunal as an administrator of international law. Thus, any attempts to ascribe an expanded field of action and responsibility to the horrors committed by a Dusan Tadic simply serve to undermine the tribunal’s ineffectual status. In addition, of course, Tadic’s crimes point up the degree to which thousands of people were involved in the commission of horrifying acts of brutality.
If the tribunal and the Security Council merely hope that these trials will facilitate national reconciliation, the evidence of Tadic’s behavior shows far too many people involved to achieve reconciliation merely by placing the blame on the leaders (though they, of course, deserve to be tried). What the recourse to international law produces in the case of the ICTFY is a tendency to ignore the importance of internal justice. How were the citizens of the area to deal with Dusan Tadic if he had not been tried before an international tribunal?
Another difficulty is that, in the Yugoslavian cases, the only form of evidence available is the testimony of witnesses. Despite “a huge amount of corroborated evidence of what happened in Yugoslavia,” timeliness is extremely important. No substantial number of documents or filmed evidence, so far as is known, exist for any of the crimes of which the accused are charged. Witness testimony is very much subject to change as time elapses, and witnesses, especially since the trials are not being held on the site of the crimes, are often hard to locate.
Nor is ensuring the safety and non-coercion of witnesses easy. This is, of course, very different from the case in Germany, where a vast civil service and organized military administration kept very efficient track of every aspect of military and civilian operations. In the former Yugoslavia, chaos has been the order of the day for several years–but those responsible used modern methods to convey their message.
With the inability of the tribunal to indict, arrest, and try even those ring-leaders whose public statements, published and televised as they were, constitute a part of the evidence against them, there is little chance that, at justice’s slow pace, convictions will ever reach any very great number. In the meantime, of course, the ring-leaders, as much as the ordinnary citizens who committed so many of the actual crimes, will be at home and will be the responsibility of the internal justice systems of the region. This, in turn, is likely to send the region up in flames all over again.