The International Criminal Tribunal for the Former Yugoslavia (ICTY), the court that put Slobodan Milošević in the dock, is to be formally dissolved this week after 24 years and 161 indictments.
After sitting for 10,800 days, hearing 4,650 witnesses and digesting 2.5m pages of transcripts, the ICTY)will be formally dissolved on Thursday.
A closing ceremony in The Hague, attended by the United Nations secretary general, António Guterres, will mark the end of 24 years of investigations and prosecutions that delivered 161 high-profile indictments.
The war crimes tribunal put the former Yugoslav president Slobodan Milošević, the Bosnian Serb leader Radovan Karadžić and Gen Ratko Mladic in the dock. Established in 1993, it was the first tribunal of its kind since hearings in Nuremberg and Tokyo at the end of the second world war.
Ninety individuals have been sentenced for genocide, crimes against humanity or other crimes. Politicians and senior military officers, judgment after judgment confirmed, will no longer escape with impunity but be held responsible for their actions, even in wartime.
Ultimate success in hunting down fugitives, however, has taken decades and there has been criticism that the tribunal represented victor’s justice: about two-thirds of those charged were Serbs. Supporters of the court countered that the worst atrocities of the conflict were inflicted by Serb forces on Bosnian civilians.
Closure of the ICTY highlights a shift in international justice away from discrete tribunals – imposing justice after successive conflicts in the Balkans, Rwanda or Sierra Leone – towards the more ambitious goal of universal jurisdiction under the international criminal court (ICC).
The ICTY’s legacy has been pivotal, Philippe Sands QC, professor of international law at University College London, believes, paving the way for a broader international consensus on war crimes justice.
“The breakup of Yugoslavia has been a catalyst with very significant consequences,” he said. “The experience has been mixed. It hasn’t brought tranquility and reconciliation to the region but it has delivered … important judgments on individuals.”
Sands, who acted for Croatia against Serbia in proceedings at the international court of justice, added: “The overall record of the ICTY reflects the significant but limited function that international justice can play in resolving longstanding political differences. It’s one tool in an armoury. The ad hoc tribunals have had an easier run than their global counterpart, [the ICC].”
Among the ICTY’s achievements was the accumulation of legal expertise and testimony, producing an archive of evidence that will serve future historians well. Prosecutors pioneered the legal concept of “joint criminal enterprise”, a doctrine relied on to tie defendants to a common plan for genocide or crimes against humanity.
Sir Geoffrey Nice QC, who worked at the ICTY between 1998 and 2006 and led the prosecution of Slobodan Milošević, recognises its success but has reservations. “My overall view of the ICTY is much affected by the corruption of history around what happened at Srebrenica [where 8,000 Bosnian men and youths were massacred],” he explained.
“Treachery by the US, UK and France, it appears, may have allowed a humanitarian nightmare to develop while Dutch peacekeepers were not told that they had been abandoned. If so, these powerful states must have revealed to Milošević that if the Bosnian Serbs took Srebrenica there would be no air strikes.
“At the ICTY, it seemed, non-combatant ‘western’ states, plus the ‘losing’ state of Serbia, were able, on occasions, to interfere with the rule of law – often by withholding evidence – to ‘clean up’ the true historical record, favourably to Serbia and to the west,” said Nice, whose most recent book, Justice for All and How to Achieve It, assesses the records of war tribunals.
“We, the trial lawyers, so far as I know, were all doing our imperfect best to keep our cases ‘clean’ and to resist improper interference where we detected it.” Trials went on for far too long, he also accepts, keeping victims waiting for decades before they found out what had happened.”
“On the positive side,” Nice added, “all reasonably educated citizens of the world now expect criminal behaviour in war to be subject to international legal accountability. That’s a huge shift in thinking.
“And secondly, the ICTY collected a vast quantity of evidence that would not have surfaced for a very long time – or ever. It will be still be there in 500 years’ time.”
The courtroom suicide of the Croatian commander Slobodan Praljak, who swallowed potassium cyanide after the court rejected his appeal, ensured the ICTY’s final judgment attracted international attention.
There are a few legal loose ends. Outstanding appeals against conviction will be heard by the UN’s residual mechanism for criminal tribunals (MICT). Other war crimes cases have been remitted to national courts in the region.
The outgoing chief prosecutor of the ICTY, Serge Brammertz, conceded last month that the tribunal had not achieved reconciliation in the former Yugoslavia. “As we have seen … the crimes have left wounds that still have not healed. Convicted war criminals continue to be seen by many as heroes, while victims and survivors are ignored and dismissed.”
Ultimately, he said, the ICTY’s legacy would not be measured “by our own work, but by whether the countries of the former Yugoslavia build the rule of law … The truth of what happened has been proved in a public court of law.”
By Owen Bowcott
(The Guardian, 20.12.2017)
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