Disappointed in justice

December 2, 2013

By Iva Vukusic, researcher, Sense Agency, the Hague

As teams of forensic experts and investigators near Prijedor dig through what is claimed to be the biggest mass grave in Bosnia and the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague slowly progresses towards closure, a sense of disappointment spreads among many victim communities and long term court supporters.

At a recent Tribunal legacy conference in Sarajevo, as the ICTY president and former NYU School of Law professor Judge Theodor Meron spoke, many victims turned their heads away in protest of the recent acquittals in important leadership cases and what they see as a change of course at the Tribunal. The next day, the ICTY press release didn’t even mention this act of dissatisfaction and that is a shame.

The Tribunal apparently declines the opportunity to hear out those it allegedly serves – among them victims and witnesses, survivors of what was the worse carnage in Europe after the Second World War. Human rights activists, academics, researchers and journalists who have for years been the greatest champions of the need to fight impunity are now being shun by the institution they supported, often in difficult circumstances in the societies of the former Yugoslavia.

Why is this happening? Why have the biggest supporters of the Tribunal, and among them many victim associations, decided to become much more vocal about what they see as significant damage to seeking accountability, providing a measure of justice to victims and developing law and jurisprudence which will influence cases at other international tribunals for years to come?

The problems emerged after a few recent cases, primarily Gotovina and Perisic, in which high ranking officials from Croatia and Serbia were acquitted on appeal for crimes they were previously sentenced for, often with long term prison terms. A lot of the criticism is aimed at judge Meron because he heads the Tribunal but more importantly, he presided over the appeals chambers that acquitted those individuals. One acquittal was controversial because of dissents being worded in exceptionally strong language.

However, it’s not only about these cases. Clearly, not all trials can and should end with a conviction – the fact that acquittals happen can be understood to prove the fairness of the system. Individuals should be acquitted or convicted based on the strength of evidence and arguments and not by outside considerations such as the impact this might have on victims or the societies concerned. Crucially though, sometimes there is no agreement at all and judges on the same panel view the evidence and the arguments in a completely different manner. This leads to judgments that are often not understood by the victims or the public.

Occasionally, judges at other courts reject the standards used to acquit at the ICTY (as was the case recently in the Charles Taylor judgment) and there is no explanation – the victims and the public in the former Yugoslavia are left to try and figure it out on their own.

As a rule, judges never comment on their decisions stressing that ‘they speak through their judgments’. But law is complicated and ordinary citizens often don’t understand the details that led to the acquittal of someone who was previously sentenced to twenty or more years in prison. No one engages with them and hears them out when they object. Law is not always clearly set and many issues are being defined and there should be a greater sense of responsibility at international tribunals towards the public they were designed to serve. If the Tribunal is being criticized, the least it can do is hear the people out, respect their views and not treat them as only passive receivers of justice that have to be grateful for whatever they get.

Many questions remain unanswered at the ICTY: why weren’t the concerns the Danish judge Frederik Harhoff expressed in his letter that was leaked to the press about possible irregularities in the decision making process at the Tribunal addressed properly? Why are the defendants almost always released after serving 2/3 of the sentence? The victims, the survivors and the hundreds of individuals that testified in those cases have a right to know.

Things are gloomy these days in the fight for accountability in the former Yugoslavia. The Seselj case where the accused is a Serbian nationalist and political leader and where Harhoff was serving as a judge before being disqualified for bias after the letter leaked is in danger of not coming to an end with a judgment. The European Court of Human Rights ruled that the Bosnian State court, for years hailed as a good example in domestic war crimes prosecution applied the wrong criminal code, violating the rights of the accused. As a consequence, individuals convicted for genocide have been released and new trials must take place. This has a potential of slowing down the already slow process of rendering a measure of justice to victims.

Through all this, almost no one from these institutions engages with the victims and the broader public about these events; no one asks for their opinion and there is nothing they can do but threaten not to testify in upcoming cases, as some of them have done. At institutions that exist for seeking accountability – there is almost no accountability. Justice is being rendered far from those it was supposed to serve without ever giving them the right to even the minimum – to get their questions answered.

By Iva Vukusic, The Hague

 

The Appeals Judgment

 

‘I fundamentally dissent from the entire Appeal Judgment, which contradicts any sense of justice’# is what judge Fausto Pocar, one of the five appellate judges in the Gotovina and Markac trial at the International Criminal Tribunal for the former Yugoslavia (ICTY), states in his Dissenting opinion (paragraph 39). That harsh statement, along with others in the Opinion, indicates just how significant the differences were between the judges’ interpretations during the deliberations on the responsibility of Croatian generals Ante Gotovina and Mladen Markac, sentenced by the Trial Chamber in April 2011 to 24 and 18 years of imprisonment, respectively, for taking part in a joint criminal enterprise the objective of which was the permanent removal of the Serb population from the Krajina region #. The events took place during and after Operation Storm conducted by the Croatian Military and Police forces in August 1995.

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By Dr Olga Martin-Ortega (University of East London, Centre on Human Rights in Conflict) and Iva Vukusic

Over 300 participants; academics, practitioners, ICTY judges, prosecutors, defense lawyers as well as representatives of national judiciaries gathered in The Hague last November to examine the global legacy of the International Criminal Tribunal for the former Yugoslavia (ICTY). The discussions throughout the conference, organized by the ICTY, were self-congratulatory, lacking in constructive criticism.

This was an opportunity to take stock of all the achievements of the ICTY, accomplishments made at times against all odds. Today, this is a court that has no fugitives left, it has conducted proceedings in relation to 161 persons and, little by little, it is approaching the end of its mandate. Two more trials, for the last fugitives caught – Ratko Mladic and Goran Hadzic are yet to begin.

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By Iva Vukusic (The Hague) 

Now that the last of the fugitives has been arrested, the International Criminal Tribunal for the Former Yugoslavia (ICTY) faces a calmer future. Two trials, those of the two most recent suspects to arrive to The Hague have yet to begin and several judgments will be rendered both in the first instance and on appeal. Then, maybe in five years or so – when all the trials are completed – the ICTY will go down in history as one of the most successful international institutions dealing with war crimes. 

Eighteen years ago, images of attacks on civilians in Sarajevo, camp detainees in western Bosnia and ethnic cleansing on a massive scale caused a shift in public opinion and political will resulting in a new institution being born – one like no other before. Back then no one knew how successful it might be.

If you asked those involved in the early stages of the Tribunal’s work if all its suspects will one day be arrested, few would have probably answered affirmatively. Yet, all of them have been arrested. No other judicial institution can claim the same success.

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