Oversold and under recognised: a reflection on the ICTY
By Andy Aitchison, Lecturer in Criminology, University of Edinburgh
In March, the chambers of the International Criminal Tribunal for the former Yugoslavia (ICTY) chambers delivered two high profile judgements one week apart: judges found Radovan Karadžić guilty across 10 counts, including genocide; Vojislav Šešelj was acquitted. Reactions to the former focused on the length of the sentence and the court’s continued record in finding evidence of genocide only in Srebrenica; the reactions to the latter focused on the credibility of the majority’s interpretation of the evidence and the extraordinary level of dissent from Judge Lattanzi. The court’s recognition that the trial of Goran Hadžić, President of the wartime Republic of Serbian Krajina, will likely never reach completion was less prominent in mainstream media. The court gave an indefinite stay of proceedings in light of Hadžić’s deteriorating health.
In light of the renewed attention generated by these decisions, this blog considers claims made for the court as a criminal justice mechanism, a means of fixing blame, a conflict resolution mechanism, and a writer of history. The court has been oversold in relation to these mechanisms, fuelling disappointment. Yet in other important areas its support of post-conflict transition has been under recognised.
Andy Aitchison directs the MSc in Global Crime, Justice and Security. His research has examined post-war criminal justice reform in Bosnia and Herzegovina. More recently, he has been using ICTY sources to analyse the role of police in war crimes.
Minimalist claims: deterrence and retribution
A minimalist evaluation of the ICTY focuses on the capacity to deliver on the aims expressed in judgements. Sentencing judgements focus first and foremost on retribution and deterrence. Rehabilitation comes a distant third. It may be more or less prominent after sentencing, when time is served in national prison systems which vary in their prison regimes.
Retribution and deterrence were evident in United Nations Security Council Resolution 827. In May 1993, this established the legal basis for the court, on the basis that the Security Council was
[d]etermined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them…
Assessing the record of the ICTY and subsequent international forums for prosecuting atrocity crimes in bringing about an end to such crimes is a theoretical exercise in the absence of counterfactual evidence of a world where such institutions do not exist.
Theoretically, deterrence relies on a sense of swift and certain punishment. The establishment of the tribunal preceded some of the worst atrocities of the conflicts in the former Yugoslavia. The perpetrators most responsible for war crimes did not see the threat of punishment as credible. It was not a given in the 1990s, but the tribunal has now prosecuted a number of leading figures. However others died during proceedings, before being brought to the court, or even before an indictment was produced and approved.
With a permanent International Criminal Court now functioning, prosecution and punishment seem more likely for leaders suspected of atrocity crimes. Yet a lack of international consensus means that indicted suspects such as Omar al Bashir, President of Sudan, are able to travel to states signed up to the Rome Statute with little concern over arrest. Arrest and prosecution in domestic courts utilising universal jurisdiction remains a possibility, but again not a certainty. Atrocity crimes continue, suggesting little deterrent effect of the ICTY and other institutions of international criminal justice.
Bringing those responsible to justice speaks to retribution, and proportionality between crime and punishment. There were voices of dismay that Karadžić received a sentence of 40 years rather than life imprisonment for a linked series of crimes over nearly four years, including genocide, persecution, murder, extermination, deportation, and terror. The sentence results, in part, from mitigation. A weighing of malicious intent and mass victimisation against good behaviour in court might seem perverse. But while retribution is often portrayed as retrospective and backwards looking, judges also consider the future interests of justice, and in this case, peace. Encouraging good behaviour in court and rewarding the withdrawal from politics were factors that shaped the sentence here.
Claims made by, and for, the ICTY go further: shifting blame from collective groups to the individuals with greatest responsibility; creating a new norm in conflict resolution and post-conflict development; creating an ‘indisputable historical record’ to help communities come to terms with traumatic events. The first President of the ICTY, the late Antonio Cassese, made similar claims, noting also that justice achieved by the ICTY can dissipate calls for revenge, and can provide a foundation for reconciliation.
The trial individualises responsibility, but only in the sense that it applies a criminal law framework in translating a wide range of activities into specific crimes and identifying individual responsibility in a limited range of roles: direct executors, commanders, aider and abetters, members of a joint project.
The tribunal is limited in that it can only reach a small number of those who are criminally responsible. In each case, the fixing of individual blame is contingent on the successful gathering and presentation of evidence. Even with domestic prosecutions, it is likely that only a fraction of those responsible will be blamed.
If the court exists to fix criminal responsibility on a limited set of individuals, it is unlikely that this will prevent other forms of blame being attributed. Moral responsibility spreads to bystanders, including those in other states and international institutions that might have done more at an earlier stage to prevent the escalation of conflict, or once it had escalated, to prevent atrocities.
Karadžić, in his closing defence, sought to portray the court as an exercise in applying collective blame: the Serb people stand accused, and all Serbs are accused in the concept of a Joint Criminal Enterprise (JCE). This might make sense in a universe in which the Serb people are a uniform and homogenous group, the kind that could truly stand in unity behind one party that is their only true representative.
Nationalists, standing before the court or writing from outside it, might dream of such unity. For the court it is an irrelevance to the criminal responsibility of the individuals named as suspects or as members of a JCE. For social scientists, it is an unlikely proposition that can be dismantled with evidence of a complex and multi-dimensional society.
The court’s claim to conflict resolution rests on the fact that leaders suspected of war crimes can now expect to face justice. As noted above, this is far from certain, but while the ICTY can be credited with holding a specific set of leaders to account it cannot be held responsible for subsequent developments. The reasoning behind the claim is less than clear, but a second step linking prosecution to conflict resolution can be made. In the former Yugoslavia, the court’s indictments excluded a number of individuals, including Karadžić, from public participation in post-war politics. Arguably this created a space for conflict resolution to take place, but resolution requires acts of political will, structures that create incentives for working together across lines of conflict and a means to exclude those who would perpetuate conflict.
An indisputable historical record
Historians will likely be cautious in endorsing the court’s contribution to the historical record. Christian Axboe Nielsen credits it with providing a decent draft rather than an indisputable record. The Šešelj judgement showed that the court can produce apparently contradictory historical accounts. The majority found that a widespread and systematic attack against non-Serb civilians was not proven beyond reasonable doubt, flying in the face of 20 years of prior decisions at the court. The merits of the judgement will be likely be tested by a prosecutorial appeal. Dissenting judge Flavia Lattanzi described it as “so wrong, in fact and law” and “a nullity”. While there was more consensus on the overall narrative in the Karadžić judgement, dissent over the findings on the Merkale bombing shows that the judgement is not where we should look for a ‘definitive’ history.
The summary of the Šešelj judgement presents the historical achievements of the various ICTY chambers in a cautious light. It suggests a “limited truth” in line with a legal response and the judges “do not claim to establish the entire truth”. Whether or not courts are the right venue to write history is a subject of much discussion. Nonetheless, regardless of the content of any individual judgement, the ICTY has a huge potential historical legacy which can be realised with the careful work of historians and social scientists.
The Karadžić case alone generated more than 50,000 pages of transcripts, evidence from 586 witnesses, and over ten thousand exhibits including documents, photographs and videos. This rich seam of resources can be utilised, alongside other sources and methods, to build up historical accounts of various dimensions of the conflict. While the ICTY and International Court of Justice may identify individual and state responsibility in atrocities, multi-level analyses of the kind advanced by historians and social scientists can fill in some of the structural and social gaps in these accounts.
Beyond 161 indictments
The focus on the ICTY in The Hague, and particularly on the judgements and other decisions of the chambers, draws attention away from the contribution made through links to other activities to build post-Yugoslav states. In post-war Bosnia, police forces were massively inflated through irregular wartime recruitment and redeployment of soldiers at the end of the conflict. Ill-trained officers with little commitment to police values, and in many cases records of war time criminality were a threat to citizens, to the return of displaced persons and possibly to peace. ICTY evidence was used in support of a lustration process that brought police numbers down from an estimated 40,000 to less than 16,000.
Further, the ICTY has also been instrumental in supporting the development of domestic institutions in BiH, where the number of accused prosecuted across cantonal, district, entity and state level courts now exceeds that of the ICTY. Access to evidence gathered by ICTY investigators has been instrumental in a number of Bosnian prosecutions.
A criminal justice response is only one part of dealing with the Yugoslav conflicts. Within that, the high profile cases heard in The Hague do not represent the totality of the ICTY’s contribution. Thus the capacity of criminal justice mechanisms to prevent attribution of collective blame, to resolve conflicts and to write history have been overstated at the same time as key achievements of the ICTY go unrecognised.