Hague Tribunal Closes Down, Leaving Disputed Legacy

In the run-up to Thursday’s closing ceremony at the International Criminal Tribunal for the Former Yugoslavia, the ICTY’s president, Carmel Agius, told the UN Security Council that its mission had been accomplished, and that its verdicts had “forever changed the landscape of international justice”.

But at the same time as Agius was outlining the ICTY’s successes, some of those convicted by the UN court of some of the worst atrocities in Europe since World War II were being celebrated as heroes in the countries that emerged from the violent dissolution of Yugoslavia in the 1990s.

In Bosnia and Herzegovina, Serbia, Croatia and Macedonia, convicted war criminals who had served their sentences have returned home to heroes’ welcomes and became public figures, members of parliament or decision-makers in political parties.

Meanwhile some of those who are still in prison or who died during trial have been celebrated by nationalist admirers as martyrs.

When the UN Security Council established the ICTY in 1993, while the war in the former Yugoslavia was still raging, it aimed to contribute to reconciliation as well as bringing the guilty to justice.

The Tribunal convicted 90 people – more than any other international tribunal – and it also established judicial truths about a lot of what happened during the 1990s wars.

It left a rich archive of millions of pages of documents, and contributed to the development of international criminal law.

Despite this, as the public shows of support for former Bosnian Serb Army commander Ratko Mladic and former Bosnian Croat military chief Slobodan Praljak in recent weeks have yet again shown, perception of its achievements remain divided in the former Yugoslavia.

Serge Brammertz, the ICTY’s last chief prosecutor, told BIRN that the court achieved credible results, but was not able to further reconciliation between the warring parties because there is “no true will in the region to accept the wrongdoings”.

“We have seen the reactions now in Croatia after the Prljic et al. judgment, and elsewhere, a lot of events in honour of so-called heroes and very little recognition of the crimes they have been convicted for. I find it extremely unfortunate that… war criminals are getting all this attention,” Brammertz said.

Bosniaks welcome convictions, Serbs discontented

The last two verdicts handed down by the ICTY could not have been more dramatic.

Ratko Mladic was sentenced to life in prison in November for genocide and other crimes, although an appeal is likely, and a week later Slobodan Praljak took poison in the courtroom when he heard his verdict, and died soon afterwards.

When Praljak killed himself, many international organisations urged to public to shift attention towards the victims and the crimes that were committed, rather than the controversy generated by a convicted man’s desperate last act.

But over the last two decades, victims have often been overshadowed by the ICTY’s defendants – from the drama surrounding the arrests of Ratko Mladic and Radovan Karadzic to the death of Slobodan Milosevic and the suicide of Praljak.

Although the court established the truth in many cases, it failed to secure compensations for victims – they appeared only as witnesses and as courtroom visitors during verdicts.

And yet, many victims and survivors, Bosniaks in particular, feel that the ICTY did deliver justice, especially in terms of the conflict in Bosnia and Herzegovina, the biggest and deadliest of the Yugoslav wars, which took up the majority of the UN court’s time.

Murat Tahirovic, the president of the Association of Witnesses and Victims of Genocide in Bosnia and Herzegovina, said that the only justice that war victims have received has been provided by the Tribunal.

“These latest verdicts – Mladic, the Herceg-Bosnia six and others… have made the Tribunal achieve its goal and purpose in giving satisfaction to victims. I believe we can be happy,” Tahirovic said.

The Hague court also provided a starting point for domestic judiciaries in former Yugoslav states to take over prosecutions and get their own convictions, argued Jasmin Meskovic, the president of the Association of Former Camp Detainees.

“If we had no Tribunal, our courts in the region would have done nothing,” Meskovic insisted.

But views are different among other ethnicities, particularly among Serbs, where there is a widespread view that the ICTY was politically biased against Serbs and punished them disproportionately.

Branislav Dukic, the former president of the Association of Former Camp Detainees in Bosnia’s Serb-dominated entity Republika Srpska, called the Tribunal “a show, with no justice”.

“The Tribunal never mentioned Serb victims. It says that Sarajevo was attacked from Serb positions, but fails to take into account that 126 [Bosniak-run] detention camps for Serbs existed in the city,” said Dukic.

Savo Strbac, the president of the Serbian NGO Veritas, claimed that the Tribunal only delivered “selective justice”, as 64 out of the 90 people it convicted were Serbs.

“Selective justice is the same as injustice,” Strbac said.

Croatian Serbs are also disappointed at what they see as a lack of justice for those killed or expelled during the Croatian Army’s Operation Storm in 1995.

The ICTY acquitted Croatian generals Ante Gotovina and Mladen Markac of crimes committed during Operation Storm, reversing their initial conviction after they appealed.

“I think that the Tribunal, unfortunately, did not bring justice for the victims,” said Marica Seatovic, the head of Against Oblivion, an association of families of killed and missing Croatian Serbs from the war.

“Justice has also eluded families of victims killed in Vukovar [during and after Serbian-led forces’ siege of the city in 1991],” said Seatovic, whose husband was killed by Croatian soldiers in the town of Novska in 1991; no one has yet been found responsible.

Manda Patko, who heads Vukovar Mothers, an association of families of imprisoned and missing Croatian war veterans from the town, and whose husband was captured by Serb forces in 1991 and never seen again, accused the Tribunal of pro-Serb bias.

“From day one, the Tribunal was on the side of the perpetrators, the Serbs, who committed aggression against Croatia,” she claimed.

Serb discontent was further fuelled by the fact that the ICTY’s trials of Kosovo Liberation Army commanders also ended in acquittals. Ramush Haradinaj and Fatmir Limaj – now both political leaders in their home country – were cleared of war crimes against Serbs and Albanians.

Facts established but questions left unanswered

The ICTY established facts about the fate of thousands of victims of the Yugoslav conflict, while many of the 30,000 missing persons from the wars have been found as a result of the Tribunal’s efforts to investigate and prosecute perpetrators.

The Tribunal produced its most remarkable results when it came to determining responsibility for the crimes in Bosnia and Herzegovina.

It handed down landmark rulings that said genocide was committed against Bosniaks from Srebrenica and established that rape was used as a weapon of war in the town of Foca.

The court also revealed the role of the Serbian leadership in the war in Kosovo and convicted six Belgrade officials for the campaign of violence that led to the killing of 11,000 Kosovo Albanians and the expulsion of around 700,000.

In its final verdict, the ICTY also shed light on the support that the Croatian leadership gave to the Bosnian Croat forces in the self-proclaimed Croat-led Herzeg-Bosnia statelet.

But the Tribunal didn’t provide clear answers to some of the most disputed events of the war, including Serbia’s role in the Srebrenica genocide – particularly as Slobodan Milosevic, the president of Yugoslavia (and later Serbia), died before his verdict was handed down.

“If Serbia knew what was happening in Srebrenica, why did they not stop it?” asked Geoffrey Nice, the ICTY prosecutor in the Milosevic case.

“Those are some key issues that still trouble Bosnia today, and the Tribunal failed to given an answer,” Nice said.

Many war victims were also disappointed that the ICTY found that genocide took place only in Srebrenica in 1995 and not in six other municipalities in Bosnia in 1992, an allegation that was not proven in several ICTY verdicts.

“On one side, you have 30 [ICTY] judges that believe genocide only happened in Srebrenica. We have heard this most recently in Ratko Mladic’s verdict,” said Amir Ahmic, the communications officer with the ICTY appointed by the Bosniak member of Bosnia’s tripartite presidency.

“On the other side, you have the prosecutor’s office, which never stopped trying to prove that genocide took place in all of Bosnia and Herzegovina [in 1992],” Ahmic added.

The unproven allegations about the Bosnian Serb Army’s links with Belgrade is another stain on the Tribunal, Ahmic believes.

The ICTY also didn’t convict Serb political leaders of crimes committed during the war in eastern Croatia – Milosevic and Croatian Serb leader Goran Hadzic died before their verdicts, while Yugoslav Army general Momcilo Perisic was acquitted.

The Tribunal further failed to punish the vast majority of those responsible for crimes against Serbs in Croatia and Kosovo, as all but one of the military and political leaders who were indicted were acquitted.

After the tribunal, a new tribunal

Although the ICTY is closing down, its unfinished appeals and trials are being handled by another Hague-based institution, a hybrid model of international criminal justice called Mechanism for International Criminal Tribunals.

It will complete the appeals proceedings in the cases against Bosnian Serb political and military leaders Radovan Karadzic and Ratko Mladic and Serbian Radical Party leader Vojislav Seselj, plus the retrial of Serbian State Security officials Jovica Stanisic and Franko Simatovic, as well as outstanding contempt-of-court cases.

The Mechanism is also responsible for the preservation and management of the ICTY’s substantial archives, which detail investigations, indictments and court proceedings. As well as the documents, the archives contain photographs, maps and audiovisual recordings.

Some of the material is already available through its website and case law database. The Mechanism plans to transfer copies to the information centres in ex-Yugoslav states, but so far the only city that has announced it will host such an archive is Sarajevo.

Some civil society organisations have also taken on the job of transferring some of the archives – so far the SENSE Centre for Transitional Justice has set up several centres in Bosnia, Croatia and Kosovo to display documents, films and photographs from ICTY cases.

Former Sarajevo policeman Dragan Miokovic, who testified in several cases at the ICTY, believes that the Tribunal’s documentation and evidence will forever define the Bosnian war.

“In future times, some less frustrated people – by that I primarily mean historians, experts and lawyers – will go through these documents and find the truth. Not only legal truth, but a historical truth about our past,” Miokovic said.

The Mechanism for International Criminal Tribunals’ other important role is to assist local war crimes prosecution offices in the Balkans; it will deal with requests coming from domestic judiciaries about evidence and provide technical support.

Meanwhile Bosnia, Croatia, Serbia and Kosovo have established local specialist chambers dealing with war crimes prosecution, but these offices have been hampered by lack of resources and political influence over the judiciary.

Most of the countries have signed protocols to cooperate with each other on war crimes cases, and liaison officers who work with the ICTY over the transfer of evidence, but extradition and the exchange of evidence between local prosecutors still remains a challenge.

Meanwhile, as the Tribunal closes, another new court that deals with crimes committed during the Yugoslav wars is only just getting started.

The new Kosovo Specialist Chambers – also based in The Hague – will prosecute former Kosovo Liberation Army members for alleged crimes committed during and after the 1999 war.

The Kosovo Specialist Chambers will try to deliver justice after the ICTY and courts in Kosovo failed to secure convictions of Kosovo Liberation Army fighters.

Given the political climate in the former Yugoslavia, prosecutor Brammertz said he is not sure how the cases being tried in domestic courts will turn out, but he believes that “there’s no alternative”.

“I’m now dealing with the region for the last ten years. I’ve met a lot of courageous and motivated prosecutors and I hope that political support for their work will increase in the future,” he urged.

Former prosecutor Nice argued meanwhile that despite the ICTY’s successes, a quarter of a century is still too long to wait for justice and the kind of reconciliation that could improve people’s lives in the former Yugoslavia.

“Look into the past, 24 years after the crimes in the Second World War, Germany and Japan were consolidated and on the way to new and exciting futures,” Nice said.

“That cannot be said of Croatia, Serbia, Bosnia and Herzegovina and Kosovo.”