Interview 09 Jan 13

ICTY Prosecution Blamed for Controversial Acquittals

The Hague Tribunal has taken flak for recent high-profile acquittals but prosecution errors have helped the accused go free, says Balkans expert Eric Gordy.

Marija Ristic
Eric Gordy I Photo by Robert Pihler/Center for Southeast European Studies

The International Criminal Tribunal for the Former Yugoslavia has drawn sharply critical reactions from some international experts after last year’s decisions to acquit former Croatian generals Ante Gotovina and Mladen Markac and former Kosovo Liberation Army leader Ramush Haradinaj.

Eric Gordy, a sociologist and lecturer at University College London’s School of Slavonic Studies, told Balkan Insight that some of the problems originated with the prosecution’s strategy.

“The strategy of charging involves first of all who is charged; second, what is he charged for, and third, how the case is presented,” Gordy said.

“When the Tribunal began, they were filing charges against everybody they could get their hands on, and that is why you got cases like the case of Dusko Tadic [a Bosnian Serb jailed in 1997 for crimes against humanity but given early release in 2008], who was certainly guilty of crimes but can hardly be called important – either politically or historically,” he explained.

Gordy said that after 2000, the Tribunal’s prosecution changed its strategy and decided to concentrate on people who had major powers of command, whether military or political.

“The idea was that it would be a smaller number of trials but ones of greater political importance that would shed a light on the stories of the wars. This led to some problems, because the only way to charge somebody like Slobodan Milosevic is to charge him for a ton of things and as a result you got this trial which you never see the end of because the defendant didn’t live long enough,” he said.

Gordy suggested that this led the prosecution to change its strategy again, targeting major figures but with more narrowly defined charges – which he says was “the big mistake they made in the Gotovina case”.

He said that there were important pieces of evidence showing a “direct plan to remove the civilian population” during the Croatian Army’s ‘Operation Storm’ in 1995, but the prosecution decided during the case against Gotovina to focus on the allegedly indiscriminate shelling of four towns.

“The judges were in a dilemma because there was no agreement what type of shelling is legal, what type of shelling is illegal. The trial chamber invented the standard, the appeal chamber decided, correctly I think, that you can’t just invent the standard, but then took this other step – ‘we will not reconsider the evidence, we will simply dismiss all of that’,” he said.

Gordy said that former chief prosecutor Carla Del Ponte’s efforts to establish the political legitimacy of the Hague Tribunal were also part of the problem.

“I believe that at one point Carla Del Ponte decided, we need to charge some Croats, we need to charge some Albanians because we are not going to look good. The result was that some charges were filed against the objection of the prosecutors who were working for her,” he said.

“This is in fact the main issue in most of the trials before the Tribunal – there are not a lot of people denying that crimes occurred. Most of the people who are defending themselves are making the argument that the wrong person is being charged and that they are not the ones who exercised command,” he added.

There were additional problems with the prosecution of Haradinaj, Gordy said.

 “They filed the charges before they secured the evidence and people on the ground were able to interfere with the evidence by threatening witnesses,” he said.

“So these were cases that were brought for political reasons in a hurry, badly prepared and were bound to fail.”

Politicians across the region have often criticised the Tribunal but Gordy said that it sometimes conveniently relieved them of the responsibility to take action themselves.

“In the first place, every state in the region could have avoided their military and political officials going to the ICTY if they simply filed charges themselves. They could have done that. The only reason the ICTY exists is that they were not doing that. And in some cases it was very convenient for states to have the Tribunal,” he said.

“When Serbia arrested [former leader Slobodan] Milosevic, the dominant story is that he was extradited because of money, but I think he was also extradited because these people didn’t know what to do [about him],” he added.

Gordy said that 20 years after the war, the rhetoric of denial hasn’t disappeared in Serbia but its character has changed.

“Ten years ago, if you were to ask people on the right about Srebrenica, they would say, ‘Oh, nothing happened there, it is a myth created by some countries and the media.’ Five years ago, they would have told a different story, they would have said it wasn’t 8,000 people that were killed but 2,000 people killed, of whom 1,000 were soldiers and 1,000 were prisoners of war or something like that,” he explained.

Now, he said, such arguments can only be heard from what he called “really weird marginal groups”.

“You find arguments about context, arguing that there were victims on all sides looking at the period from 1992 to 1995. I don’t want to say that these are wonderful arguments but this is different kind of denial than what you saw at the beginning, and you have to say that it is a sort of movement in the discourse,” he said.

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