Analysis 04 Jan 17

Hague Tribunal Prepares for Shutdown in 2017

The UN war crimes tribunal for the former Yugoslavia will shut down in 2017 after more than two decades, but a handful of unfinished cases will continue, including the landmark case of Bosnian Serb military chief Ratko Mladic.

Marija Ristic BIRN
ICTY president Carmel Agius (left) at a UN Security Council session. Photo: UN.

In what was intended to be the final extension of the judges’ mandate at the Hague-based International Criminal Tribunal for the Former Yugoslavia, ICTY, the UN Security Council prolonged the work of this ad hoc court for crimes committed during the 1990s wars to November 2017.

November 2017 is the final deadline for the tribunal to hand down verdicts in three remaining cases - two for war crimes in Bosnia and Herzegovina and one for contempt of court.

The most important is one of the largest cases in the ICTY’s history, the verdict in the trial of Bosnian Serb General Ratko Mladic, who is accused of genocide and war crimes in Serb-held territories in Bosnia and Herzegovina.

The other is the appeal in the case of Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoje Petkovic, Valentin Coric and Berislav Pusic,six former Bosnian Croat leaders who were convicted in 2013 of committing war crimes in the area around the town of Mostar.

The third remaining case relates to contempt of court in the trial of Vojislav Seselj, during which three of his Serbian Radical Party members allegedly bribed and intimidated witness not to appear before the ICTY and testify about his involvement in war crimes in Bosnia, Croatia and Serbia.

The three wanted Radical Party members - Vjerica Radeta, Petar Jojic and Jovo Ostojic - are currently in Serbia, where the government has been refusing to extradite them on security grounds, despite the fact that the ICTY has issued an international arrest warrant. They have refused to appear in court voluntarily.

For some of those who work the ICTY, the last year in its 23-year existence could be the hardest one. The court is struggling with time, first to ensure that the verdicts in the Mladic and Prlic cases happen in November without any delay, but also to keep its remaining staff until the end of 2017.

To keep top legal experts in the field has been a struggle for the ICTY in its final years, as many judges and prosecutors left as the Tribunal started to approach its end.

On the other hand, defence teams have been trying to prolong cases, arguing they were not given enough time to deal with the wide-ranging and complex case material.

In the case of Mladic, there is also a fear he will not live long enough to see a final verdict due to his poor health which has already on several occasions prolonged his trial

This would be a significant blow to the ICTY’s reputation as some of key Serb leaders from the war years have already died in detention - including former Yugoslav President Slobodan Milosevic and Croatian Serb leader Goran Hadzic.

Fugitives finally arrested

The ICTY courtroom. Photo: ICTY.

The ICTY filed indictments against 161 people, most of them high-ranking officials within the state, army or police apparatus, as the tribunal’s statute envisaged.

Set up in 1993 by the UN Security Council to try people suspected of committing war crimes during what were at the time ongoing conflicts in Croatia and Bosnia and Herzegovina, it later expanded to include cases for the violations committed during the conflicts in Kosovo and Macedonia.

It was the first war crimes court to be created by the UN and the first international war crimes tribunal since the Nuremberg and Tokyo tribunals. Over more than two decades, it heard almost 5,000 witnesses and held around 11,000 trial days.

The ICTY will go down in history as the first court to charge an acting head of state of genocide and other crimes, although Slobodan Milosevic didn’t live long enough hear his verdict, as he died in 2006 before the end of his trial.

However, the court did convict other 83 people, most of them from Bosnia and Herzegovina. The Tribunal ended the proceedings against 37 other people either due to their deaths, because the cases were transferred to their home countries or the indictments withdrawn.

The final fugitives from international justice were arrested in the late 2000s, when three key Serb leaders - Radovan Karadzic, Ratko Mladic and Goran Hadzic - were  tracked down in Serbia after years on the run.

The ICTY convicted defendants of four types of crimes: genocide, crimes against humanity, violations of the laws and customs of war and grave breaches of the Geneva Conventions, and significantly contributed to the development of international law.

The court helped to further develop definitions of genocide, torture, crimes against humanity and command responsibility, but it also delivered landmark verdicts in cases concerning sexual violence and the destruction of cultural heritage.

Its work in the area of international law also helped in the establishment of the International Criminal Court, especially in developing the statute of the court and defining the crimes with which it deals.

Allegations of bias

Macedonian war crimes convict Johan Tarculovski was given a hero's welcome in Skopje after his release and was recentlly elected as an MP. Photo: Sinisa Jakov Marusic

Domestically, in the countries of the former Yugoslavia, the ICTY’s legacy is still very much disputed, however.

According to a survey in 2011 by the Belgrade Centre for Human Rights, 66 per cent of people in Serbia believed the ICTY was not necessary and that it would be better for national courts to deal with such crimes.

Almost 40 per cent of Serbians believed the purpose of the trials was to blame Serbs, while 73 percent thought the court was biased.

There were similar feelings towards the ICTY in Croatia - 30 percent of Croatians thought the court was biased and 27 per cent that indictments were only issued against Croats.

The court was often criticised for poor outreach strategy, especially in its first decade, and that the fact that it was far away from the communities in which the crimes took place made the job of communicating its mission even harder.

In Bosnia and Herzegovina however, where the most of the crimes in former Yugoslavia took place, 56 per cent of people believed the establishment of the ICTY was a good move.

Overall, the court got more approval in Bosnia and Herzegovina than in Croatia and Serbia, although by no means was it universally respected in the country. Thirty-seven per cent of those questioned had positive attitudes towards the ICTY, while 40 per cent expressed negative ones.

Victims were often also disappointed with the ICTY’s work - especially with the controversial acquittals of Yugoslav Army general Momcilo Persic, Croatian generals Ante Gotovina and Mladen Markac and Kosovo Liberation Army commander Ramush Haradinaj.

Some claimed that it was time to move beyond what they said was the redundant dilemma about whether the ICTY assisted in the process of reconciliation. They suggested that a more serious question should be asked: has the Tribunal fulfilled its broader mandate of “contributing to a restoration and maintenance of peace”?

They also expressed doubts that the ICTY ever had the tools, or the full commitment, to do so.

As the ICTY and its judges and staff were in The Hague, thousands of kilometres from the former Yugoslavia, the failure to ensure its messages were understood left a gap that was filled with propaganda, unfounded criticism and praise for war criminals by nationalist politicians and, often, by right-wing governments.

A lot of ICTY convicts received hero’s welcomes when they returned home, while some of them even went on to hold official positions despite their war crime convictions.

Allegations of bias were also made by some of the ICTY’s former judges, who believed that in some cases, the court had political agenda and excluded some evidence in order to serve Western powers.

Nevertheless, the ICTY can claim an immense contribution to transitional justice in the huge archive it has amassed, with more than two million of pages of transcripts and documents now online.

In the coming years, copies of these archives will be moved to the Bosnian capital Sarajevo, while negotiations are ongoing with other countries to have some parts of the archives stored there too.

Bearing in mind that military archives are closed in most of the countries of the former Yugoslavia, this is a significant contribution to researchers, historians and media, enabling them to continue exploring different aspects of the 1990s wars.

After the ICTY

Radovan Karadzic's appeal will be heard at the MICT. Photo: ICTY.

When the ICTY closes its doors in November 2017, its work will be carried on by the Mechanism for International Criminal Tribunals, MICT, which was established in 2010 to continue the “jurisdiction, rights and obligations and essential functions”of the ICTY, and to maintain its legacy.

MICT will finish all the cases left unconcluded by the ICTY - most of them appeals –including those from Radovan Karadzic, the Bosnian Serb leader sentenced to 40 years for genocide and war crimes, and Serbian Radical Party chief Vojislav Seselj, who was acquitted.

It is also expected that MICT will take over Ratko Mladic’s case at the appeal stage.

MICT will also hear one case from the beginning, against former Serbian State Security officials Jovica Stanisic and Franko Simatovic, who have been sent for retrial after their initial acquittal. It is expected to start this year.

On the ground, MICT will have two important tasks - to preserve and manage the archive of the ICTY and to assist in national jurisdiction.

The latter has proved to be very difficult. Although there have been numerous training sessions for local prosecutors, liaisons officers were established local prosecution still defy to the instructions from the ICTY.

Bosnia is still making very slow progress in prosecuting cases that were transferred from the UN court, while Serbia rejects one the key ICTY rulings –that the Srebrenica massacres were genocide.

In his latest address to the UN Security Council last month, ICTY and MICT chief prosecutor Serge Brammertz warned that in unless governments in former Yugoslav countries give their full support to war crimes prosecutions, justice cannot be done.

“As long as the political environment and mindset do not support war crimes justice, it will be extremely difficult to meet the public’s legitimate expectations for meaningful accountability,” Brammertz said.

While the ICTY managed to convict some of those responsible for some of the worst atrocities of the late 20th century, it did not find a way to counter some of the domestic hostility to holding war criminals to account.

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