Lack of critical voices as the ICTY examines its global legacy

December 20, 2011

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.

Several speakers at the conference emphasized the humble beginnings of the Tribunal and how it took courage and collective effort to push it forward back in 1993. The ICTY has obviously been instrumental in the incredible advances of the last two decades in international criminal law, international criminal procedure and in narrowing down the impunity gap for international crimes not only in the former Yugoslavia, but globally.

When analyzing the Tribunal’s contributions to substantive international law judges and academics focused on the crucial role it had in the revival of customary international law. The ICTY undertook the extraordinary exercise of searching for the applicable law and its sources and determining the specific scope of the existing and evolving norms. By doing this the ICTY ‘revived’ custom as the basis for international prosecution, brought it out of the realm of academia into the courtroom.

Well-known cases were discussed and their contribution including the constructions on the cross border requirement for the crime of deportation (Stakic), the exclusion of proof on non-consent with regards to sexual violence (Kunarac); the broadening of the definition of torture by clarifying that the requirement of public official position is limited to the purposes of application of the Convention Against Torture, but no required under customary international law (Kunarac); the consolidation of the notion of joint criminal enterprise was firmly established (Tadic) and the possibility of command responsibility of political leaders, not only military ones (Delalic); the criteria for determination of the nature of the conflict, international vs. non-international conflicts (Tadic), etc.

The interactions between human rights and international humanitarian law were also analyzed, and so were issues of procedure and the delicate balance of maintaining the equality of arms in emerging rules and practices. The contribution of the ICTY in creating a sui generis international procedure, bringing together elements of common and civil law systems, was being praised as well.

Together with the advancements in international law and international criminal procedure there was an agreement among the participants that the other major accomplishment was a contribution to the establishment of infrastructure for national criminal prosecutions in the region. None of the panels however addressed this important issue specifically, nor was any member of a national judiciary invited to share their thoughts on stage, among the panelists. It would have certainly been very interesting to hear national judges and prosecutors and defense attorneys discussing how to conduct fair and efficient local war crimes trials or how to use ICTY jurisprudence and experience in their daily work. This was a lost opportunity to hear those involved in national accountability efforts and to critically analyze this dimension of the legacy.

One could notice a visible lack of voices from the former Yugoslavia. This received a limited criticism from the audience, as it did the lack of representation of those who bear witness more directly for the legacy of the tribunals: the victims. Prof. Diane Orentliecher was tasked with exposing the views from Serbia and Bosnia-Herzegovina by presenting her excellent recent work. This ‘mediated’ voice however could not be more than an academic analysis of what those affected by the work of the ICTY think and feel, not an actual representation of such thoughts and feelings. The organizers replied to the criticism of voices from the region not being heard by saying that they had already had a forum to speak in, in the previous legacy conference (February 2010). In this year’s event, however, there was a great sense of void in this regard. On occasions the reflective exercise did feel as a “conversation to the self.” The people of the former Yugoslavia featured almost exclusively as ‘receivers’ of international justice rather than active participants in the process.

It would have been also interesting to discuss, in terms of the global legacy, the experience of the ICTY in formulating and implementing a prosecution strategy. Firsthand experience from prosecutors discussing prosecutorial policies, decision-making in case-selection and external and internal constrains to prosecution would have enriched the stock taking exercise. This is exceptionally important as much of the success of a court such as this one depends on case selection, investigations and case-preparations, and future courts have much to learn from the ICTY experience. Another missing voice was the defense – it would have been interesting to discuss their work in complex war crimes cases, the problems the counsel face and the standards that evolved in fair trial rights. The important learning process within the ICTY will no doubt stand as a legacy for future war crimes tribunals too.

The very few critical comments also touch on the limited work on reparations at any level in the countries of the region. ICTY president (until recently), Judge Patrick Robinson took the opportunity to insist on his initiative to establish a Victims’ Fund for the survivors of the former Yugoslavia, stressing that they are no less worth of support than those at the International Criminal Court, and therefore there needed to be a system in place for them too. He remarked how he had deliberately avoided the word reparation to highlight the wider concept of assistance and support, not exclusively quantifying the harm in economic terms. But beyond that there was no reflection on what would be the practicalities involved in implementing such an initiative. An assessment of the needs of the victims is still being conducted, ‘to avoid assuming that we know what the victims needs are before we have heard them’, Robinson remarked.

Finally, Judge Robinson stressed the need for continued support for the Tribunal as the institution was facing pressure to wind down its activities and complete all the trials. As it was mentioned several times, the ICTY is under pressure great to conclude its proceedings. The risks of jeopardizing its work in the last years of its mandate and the issues of fairness of procedure it raises should not be underestimated. Funding should also not be allowed to pose a threat to the swift conclusion of the Tribunal’s mandate.

In sum, critical voices were lacking during this gathering in The Hague. Even with the recognition of all the accomplishments of the ICTY, and undoubtedly there are very significant ones, it would have been useful to have a more inclusive as well as wider debate on the legacy of this important institution. It would have been helpful to point at the lessons for the future. This learning process is important, not only to tackle legal, procedural and technical issues, but also to manage expectations of current and future criminal accountability processes. The experience of the ICTY has shown how conflicting concepts of what an international criminal tribunal is, or can be, may lead to conflicting legacy evaluations. Whilst from the inside the Tribunal is mainly an adjudicative body, this is how its staff see it and how it was analyzed by practitioners and academics, to the outside it was presented as a tool for peace, justice, democratization and reconciliation. Legacy with regards to the restricted albeit hugely complex tasks of investigating, indicting, prosecuting and sentencing, are far easier to quantify, but it would have been very interesting to hear what the Tribunal and those affected by its work had to honestly say about its wider impact.

Dr. Martin-Ortega acknowledges the support of the British Academy Small Grant (SG100735) for her research on the institutional and substantive development of international criminal justice. For more information about the
project click here. Iva Vukusic currently works for Sense News Agency in The Hague  and as a consultant on a research project for King’s College London, War Studies Department.

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