Dr Paul Behrens, University of Leicester
It 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).