By Elizabeth Pond
As the special war-crimes court for ex-Yugoslavia celebrates its 20th anniversary today in Sarajevo and prepares to close its doors by 2016, it seems to have performed better at politics than at jurisprudence.
That's not a bad record, perhaps, for a court that started as an orphan, had no enforcement arm to arrest those indicted, and had to start building prosecution cases with its own forensic exhumations of mass graves under the hostile eyes of Serb soldiers. But it is certainly a different outcome than that envisioned by the tribunal's founders a generation ago.
The United Nations established the court in 1993, as the end of the Cold War once again made Europe safe for national wars. Yugoslavia responded instantly by fracturing into a replay of the early 20th-century Balkan wars that ended the Ottoman Empire and sparked World War I. The ideal of humanitarian intervention that would climax in the UN. "Responsibility to Protect" norm of 2005 was beginning to gather momentum. Yet the United States, the world's one remaining superpower, was determined not to get its ground troops sucked into the non-strategic Balkans and agreed to help set up the UN International Criminal Tribunal for the former Yugoslavia (ICTY) rather more as a substitute for military action than as a summons to conscience.
From the beginning, the founding nations starved The Hague's ad hoc ICTY of funds. Its opening annual budget was a risible $276,000. For more than a year it did not have enough money to hire its chief prosecutor. The judges initially had to rent their robes from a theatrical supplier. U.S. and allied peacekeepers in Bosnia refused to share intelligence with the tribunal or apprehend indictees like Ratko Mladic, and for years the Serb commander at the 1995 massacre of close to 8000 unarmed boys and men in Srebrenica mocked the tribunal by roaming freely in Belgrade. It was not until Madeleine Albright became secretary of state in 1997 that Washington took the ICTY seriously.
In the next decade and a half, the ICTY—along with its companion temporary UN court for Rwanda—translated the bare principles of the 1948 Genocide Convention into specific jurisprudence for the first time. The two tribunals wrote the world's first convictions of genocide and the first legal definitions of the convention's outlawing of genocide of a people "in part" as well as "in whole," including the ban on "measures intended to prevent births within the group." The tribunal indicted 161 persons and granted them extensive legal counsel for their defense. The rare trial of a head of state for atrocities committed under his rule—Serbian strongman Slobodan Milosevic—remained inconclusive, as Milosevic died in his cell fifty court hours short of a verdict in 2006. But the tribunal did convict 69 defendants for genocide or lesser war crimes, including the new category of systematic rape as torture. In the process it defined the evidence required to prove command responsibility for war crimes.
Last November, however, the ICTY suddenly risked voiding its own jurisprudence of two decades and the world's first post-Hitler attempt to hold senior leaders accountable for genocide carried out by subordinates. In a controversial acquittal the appeals chamber, unusually, threw out the extensive evidence cited by the trial bench in convicting the senior Croat General Ante Gotovina and a fellow defendant.
One of the appellate judges wrote a sharp dissent to the split decision at the time. Another tribunal judge, Frederik Harhoff of Denmark, subsequently wrote a letter, which was leaked to the media, charging that the ICTY's American president Theodor Meron had pressured the appeals chamber to acquit both Gotovina and, in May 2013, Milosevic's two senior intelligence officials. Meron has remained silent on this internal judicial issue.
The upshot could be that on this precedent no future leader who condones atrocities committed by his armed forces can be convicted unless he has signed a written order to them to commit crimes. That would be an impossibly high bar for proof—and just the opposite of the accountability that was the aim of those who launched the Hague tribunal.
On the political side, the Hague tribunal has arguably done better than on the purely legal side. The ICTY performed a huge and unintended initial service, especially in Serbia, by removing senior leaders like Milosevic and militia leader Vojislav Seselj from domestic politics in their home countries during the early post-war transition years. It further became the measuring rod—especially in the cases of Croatia and Serbia—of Balkan countries' advance toward rule of law as the European Union made cooperation with the ICTY its main precondition for coveted candidacy for membership in the rich and secure European Union.
Most dramatically, the incentive of eventual EU membership finally brought Serbia, after 16 years in which its secret services hid Ratko Mladic, to arrest Mladic and extradite him to The Hague in 2011. The verdicts in his trial and in the 24 other ongoing trials are expected by 2016.
The tribunal also, like the Nuremberg trials of Nazi leaders half a century ago, established a baseline of legal truth about the tangled Balkan wars of the 1990s and collected a trove of documents and analysis for the reference of future historians. It familiarized Balkan judges and lawyers with the European concept of rule of law, and provided them with organized, searchable archives to continue in their domestic courts with prosecutions of war crimes and crimes against humanity begun at The Hague. It also forced Serbs, argues Bruno Vekaric, Serbia's deputy war crimes prosecutor, to stop denying that war crimes ever took place.
Finally, the ICTY, in conjunction with international peacekeeping forces in Bosnia and Kosovo, provided time for passions to cool without any escalation of revenge killings. Above all, the tribunal gave Serbian ultranationalists the time and distance to turn pragmatic and moderate by the time they finally came to power a year ago. Serbia in particular needed this breathing space. Unlike the Croats, whose bellicose leader Franjo Tudjman did them the favor of dying before he could be indicted and thus giving them a tabula rasa, Serbs had to live with the burden of a bellicose Milosevic until he died in 2006. It took a younger generation of leaders and popular despair over constant political mobilization and economic hardship to bring them to this year's unexpected "normalization" with independent Kosovo.
If that normalization now spreads to the Serb "entity" in Bosnia and eventually helps all of the Balkans to modernize and join the European Union, the Hague tribunal will be able to claim much of the credit, as much through its political impact as through its certification of the legal truth of the 1990s wars.
Elizabeth Pond is a Berlin-based journalist and the author of Endgame in the Balkans.
[Photo courtesy of Klaasjan]