A good year for international criminal justice


Dr Paul Behrens, University of Leicester

Paul Behrens, University of Leicester, debates on Leicester ExchangesIt hasn’t been a good year for the baddies of the world. In May, Osama Bin Laden found death at the hands of US special forces, in August, Atiyah Abd al-Rahman, Al Qaeda’s second in command, died (presumably in a drone strike), and now Muammar Al-Gaddafi, wanted for crimes against humanity, has been killed, shortly after his capture in a sewer pipe near Sirte, Libya.

Whether it has been a good year for international justice, is a different question. Executions without trial tend not to be the hallmarks of good judicial procedure, nor do they promote truth or reconciliation.

But 2011 has seen other events which paint a more promising picture in that regard. They tend not to make big headlines – the workings of justice don’t sell as many papers as attacks on Al Qaeda compounds – and they don’t always involve household names. Goran Hadzic for instance, who was arrested in July and transferred to the International Criminal Tribunal for the Former Yugoslavia (ICTY) might not have featured quite as prominently in the news.  And yet, he is a big fish – the former President of the “Republic of Serbian Krajina” stands accused for his involvement in some of the worst crimes carried out in Croatia in the 1990s – including ethnic cleansing, murder and extermination. The indictment runs into 14 counts of crimes against humanity and war crimes. And there is something else that is quite remarkable about his arrest: Hadzic was the ICTY’s last fugitive.

A full house is a rare accomplishment: not even the International Military Tribunal at Nuremberg managed that. The ICTY’s sister court – the International Criminal Tribunal for Rwanda (ICTR)– is still looking for nine fugitives. Add to that that earlier this year, the ICTY managed to get hold of the Bosnian Serb general Ratko Mladic, and it starts to look like a pretty good year for the Hague-based tribunal. Can one go further? The ICTY – an unmitigated success story?

In the 18 years since its establishment, the tribunal certainly had its share of critics. Some of its trials led to results that were not particularly satisfactory – notably the one of the former Yugoslavian President Milosevic – forever interrupted by the ill health of a defendant who was, on top of that, faced with a humdinger of an indictment (the trial eventually collapsed when Milosevic died in 2006).

The judges, while often of very high quality, counted some less admirable members among their number. Following the Landzo Trial, the defence complained that one of the judges had been “asleep during substantial portions of the trial” (leading to the curious comment by the Appeals Chamber that the judge appeared to have been asleep for 30 minutes “on one occasion only”).

And then there is the ICTY’s budget: in its inaugural year (1993), it was that of a Hammer movie (less than $300,000), in 2010 / 2011, that of a Hollywood blockbuster (more than $300 million) – figures which are enough to make some of its sponsors nervous.

Anything on the upside?

In its lifetime, the Tribunal has indicted 162 persons – 62 of these were sentenced. 17 are still being tried, 16 are before the Appeals Chamber, 2 are at Pre-Trial stage (Mladic and Hadzic).  All of this translates into a steady stream of case law generated by only 15 permanent judges (from as many different countries) and 9 ad litem judges (judges who sit on specific trials). Judgments often run into more than 300 pages, and include detailed assessments of the factual situation, the reliability of the evidence and the individual criminal liability of the accused.  The Tribunal has considered areas as diverse as rape camps in the Bosnian war, the shelling of Dubrovnik, the deportation of Kosovo Albanians, the infamous prisoner camps of Omarska, Trnopolje and Keraterm and the massacre at Srebrenica. Their legal assessment covered everything from the war crime of plunder to the crimes against humanity of persecution and rape, right up to genocide and its component elements.

It is all too easy to forget what the world looked like even fifteen years ago, when the ICTY was about to issue is first judgment. Nuremberg and Tokyo were distant memories, and the autocrats of the world had reason to feel safe on their thrones or to look forward to ill-deserved retirement. Idi Amin enjoyed relatively safe exile, the Sudanese President Omar Al Bashir had been in power for seven years, Gaddafi twenty-seven. In Liberia, Charles Taylor was just completing his transition from warlord to President of the country (one of his more memorable campaign slogans was “”He killed my Ma, he killed my Pa, but I will vote for him.”)

In some regards, things are certainly different now. Today, Taylor lives in a prison cell in Scheveningen – his trial has just drawn to a close. In June 2011, arrest warrants were issued against Gaddafi, his son Saif and his intelligence chief Al-Senussi. Omar Al-Bashir faces charges by the International Criminal Court on genocide, war crimes and crimes against humanity. Remarkable changes – but changes which have not come about by accident.

The legacy of the ICTY is not confined to the situations on which it ruled, to the closure and comfort it brought to victims and their families. Nor is it limited to its meticulous legal findings – whose significance will far outlast the individual cases and will mean that subsequent courts and tribunals will not need to reinvent the wheel.

It is quite possible that the ICTY will be best remembered for shattering the armour of immunity which allowed authoritarian rulers to feel safe as long as they carried the title of their office. When in 1999 it  allowed an indictment against the President of the Federal Republic of Yugoslavia, it became the first international court to start criminal proceedings against a sitting head of State. If procedures against suspects in highest places are no longer a utopian fantasy, the work of the ICTY must be held to have contributed much to this. This, it appears, will be its true legacy, and this is the success against which all of its successors will be measured.

Dr Paul Behrens teaches international law at the University of Leicester. His research interests include Public International Law and Constitutional Law. He has written expert commentaries for leading British and German newspapers (including the Guardian and the Süddeutsche Zeitung).

5 Comments

  1. Chris Williams
    Posted 01/11/2011 at 20:21 | Permalink

    As a teacher of law you will tell me that it matters what murder is called but, as layman, I cannot see why dictators cannot be charged with murder or non judicial killing if you prefer. The relatives of the victims of the Nazis do not say, “my father was a victim of Nazi genocide”. They say, ” my father was murdered by the Nazis”. When the International Court says we will prosecute all those who commit murder and have escaped justice then it will become a true International Criminal Court.

    Killing seven thousand unarmed people is murder, plain and simple. They could have been mutilated post burial through the process of digging up their bodies. Moving the bodies could have been done by others, not the murderers. That process or mindset should have no place in the trial. The only questions should be: who did it, who gave the order and who, created the conditions in which it could happen or be allowed to go unpunished. It is not the intent to harm a specific group that should lead to criminal proceedings but the act of murder alone.

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  2. Dr Paul Behrens
    Posted 31/10/2011 at 14:28 | Permalink

    Hi Realist,

    on the tribunals failing to bring dictators to the law – that point seems quite similar to the one made by Roger, so perhaps I can refer to my reply there.

    The evaluation of Srebrenica as genocide is these days quite undisputed. It is not only the ICTY that made that assessment (Trial Chambers as well as Appeals Chamber) – the International Court of Justice likewise concluded that the acts at Srebrenica fulfilled both the objective and the subjective part of the crime.

    There are two aspects of genocide law that I should highlight in that respect.

    First of all, it does not matter that the actual victim numbers are low (that is, if you are really saying that 7,000 – 8,000 victims is a ‘low number’). On the objective side, it is enough that one victim has been affected by the crime. I therefore have absolutely no problem stating that genocide had been carried out in “just” one town.

    Secondly, it is true that you still need to show genocidal intent, ie, the intent to destroy the protected group, “in whole or in part, as such”. But that, too, was quite clear in the Srebrenica situation. In Krstic for instance, the Trial Chamber inferred intent from the “concealment of the bodies in mass graves, which were later dug up, the bodies mutilated and reburied in other mass graves located in even more remote areas”. (To my mind, mutilation of the bodies is a particularly strong piece of evidence – it indicates a mental element that goes beyond the killing of the selected victims. It is conduct that can no longer be explained with the removal of a “security threat”, as has sometimes been claimed – it rather indicates that the perpetrators harboured destructive intentions against the group as such).

    PB

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  3. Dr Paul Behrens
    Posted 31/10/2011 at 14:21 | Permalink

    Hi Roger,

    I think that is probably linked to the old argument which has haunted Nuremberg – ie, are the only crimes that were committed in any given conflict the ones that are being tried afterwards? To my mind, that would not be a convincing reason against holding these trials in the first place. Translated to the level of domestic justice, it would mean that we should let one burglar go free because we have not been able to catch his colleagues – a point which is rarely advanced.

    That it can take a long time for international criminal justice to develop its full potential (and, incidentally, that it can take long even to bring indicted defendants to justice) is beyond doubt. But once again, I see much reason in considering the historical perspective of events. For hundreds of years, State sovereignty was seen as so important a value that the international community would have felt horror at a system which would have put the head of State of another nation on trial. This has only really changed with Nuremberg – ie, within the last three generations. These are truly revolutionary events, but they give reason to hope, if one has the patience that hope requires. Martin Luther King’s words come to mind: the arc of the moral universe is long, but it bends towards justice.

    PB

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    Richard Hagan Reply:

    Yes. The court can take its time. I have a vision on Mr. Blair in his eighties brought before a tribunal for permitting torture and participating in genocide. Headline: Blair dies in prison. What a delicious thought. One should not be flippant about such serious matters but when no other legal action is open to an ordinary individual it is at least an escape valve.

    Another thought for academic research. Why do politicians like to shame us as a nation. Diego Garcia, Pinochet, Gurkhas, war pensions, and on and on and on. Oh to be as beautiful and talented as Joanna Lumley, what campaigns I could mount against these damded smiling villains.

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  4. Roger Halberd
    Posted 27/10/2011 at 18:01 | Permalink

    Indicting the President of the Federal Republic of Yugoslavia is a very small step towards indicting G.W. Bush and A.Blair. They should get around to it in about 2045 at the present rate.

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  5. Realist
    Posted 27/10/2011 at 02:04 | Permalink

    There is no need to praise the current level of international criminal justice and the role of the international tribunals. They failed to bring the dictators before the law. It doesn’t actually matter because the courts have not really been working efficiently to serve justice. Some of the judgments by the courts, namely by the ICTY, were naive and ungrounded. How could, for example, the massacre in Srebrenica be a genocide as the court ruled? The number of victims reportedly were only limited to some 7,000 only. Plus, the massacre was perpetrated only in one town only. But the very nature why the genocide emerged as a new crime element was because reportedly some 7,000.000 Jews were killed by Nazi Germans in the entire European continent not even in one country.

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