Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

Legacy of the Hague tribunal

Achievements and problems of international justice
7 December, 2017 - 12:04
REUTERS photo

The final session of the International Criminal Tribunal for the Former Yugoslavia (ICTY) ended in horror: former Bosnian Croat General Slobodan Praljak drank potassium cyanide right in the courtroom and soon died in hospital. On that day the tribunal upheld the 20-year sentence passed on the Croatian general for war crimes and crimes against humanity, including the ruination of an ancient bridge on Mostar (Bosnia and Herzegovina), killings and tortures of prisoners of war and Bosnian Muslim civilians.

A DANGEROUS JAIL

The poisoning of General Praljak is the third suicide by an ICTY defendant.

The first was Slavko Dokmanovic, a Croatian Serb who served as mayor of Vukovar (Croatia), when the city was controlled by Serbian separatists. His arrest warrant was the first one issued by the Hague tribunal, when it began to function in the late 1990s. Dokmanovic was accused of, among other things, complicity in the murder of 264 Vukovar hospital patients at the Ovcara farm. He pleaded not guilty.

The Vukovar ex-mayor was arrested and delivered to The Hague as a result of a complex operation in which special agents from various countries participated. A year after the arrest, Dokmanovic committed suicide: he managed to hang himself by fastening the end of a necktie onto the top door-hinge of his cell’s wardrobe.

In March 2006, another Serb, Milan Babic, former “president” and “prime minister” of the self-proclaimed Republic of Serbian Krajina on then territory of Croatia, also hanged himself in the ICTY jail. Unlike Dokmanovic, Babic pleaded guilty and cooperated with the investigation – in particular, he testified against the Yugoslav leader Slobodan Milosevic. Babic was sentenced to 13 years in prison in 2004, but he committed suicide two years later.

These tragic occurrences stirred up a lot of disputes, particularly about improving the safety of Hague tribunal convicts. But, as the ICTY is being dissolved, only some other judicial entities can now take into account this sad experience.

THE FIRST AFTER THE NUREMBERG TRIALS

The main conclusions about the overall activity of the International Criminal for the Former Yugoslavia do not, of course, boil down to reformation of the court security system. The aim of the ICTY was to give a fair deal to victims and their families, prevent war crimes and crimes against humanity in the future, and help achieve a durable peace in the former Yugoslavia’s postwar countries. The ICTY was the first international tribunal established since the Nuremberg trials. But “expectations were not very high” at first, the court’s chief prosecutor Serge Brammertz admitted in an interview.

Now that the Hague court’s mandate has expired, many are again doubtful that the tribunal has come up to expectations.

Most of the international, including Ukrainian, jurists approve of the ICTY’s performance – the court worked thoroughly, and its rulings were adequate in legal terms.

But politicians, above all in the Balkans, and the region’s grassroots are often saying that the Hague court never managed to administer true justice and become a fact of reconciliation in the region.

Why did it happen?

In 1945, the countries that took part and won in World War II – the USSR, the US, the UK, and France – resolved to establish the International Military Tribunal. The UN General Assembly later approved the principles of its statute. The court, known as Nuremberg Tribunal after the place of the trial, was formed on a parity basis and consisted of representatives of the four winner states. In 1991, the UN Security Council established an international tribunal to prosecute those guilty of serious violations of international humanitarian law committed on the territory of former Yugoslavia from 1991 onwards. The “Hague tribunal” being a UN court, none of countries that participated in the Yugoslav war have any serious impact on it.

WINNERS ARE… JUDGED

Unlike the Nuremberg Tribunal, the one in Hague dropped from the very beginning a different approach to aggressors and victims of aggression, to winners and losers. All the sides of the conflict stood trial in The Hague on the same grounds, while in Nuremberg the winners judged those who had unleashed and then lost the war. This is why Serbs, as well as Croats, Bosnians, Kosovo Albanians, and Macedonians, were brought to justice at the Hague tribunal.

This clearly shows an intention to achieve humanitarian justice for all the innocent victims of the war, but responsibility for aggression as such remains an open question. In this situation, all the sides of armed conflicts remain guilty to a certain extent and are held responsible only for violating the rules of war, not for unleashing one or committing aggression against other peoples.

This approach did not suit the Croats, in particular, who say that the tribunal sought an “artificial balance of guilt,” when the real aggressor was Serbia under Milosevic.

Yet the court’s attitude did not look so impartial in practice – the Hague tribunal would more often convict the attackers and acquit the defenders. This time, the “Nuremberg-style” approach of the ICTY came under criticism from the Serbian side. Serbia and Republika Srpska (Serbian part of Bosnia and Herzegovina) have always been saying that, in spite of declarations about impartiality of the Hague tribunal, it is the Serbs that accounted for the overwhelming majority of the convicted.

Another major complain of the Serbian side is the acquittal of Kosovo Albanian military and political leaders. Supposedly, this occurred because trial witnesses were neutralized in various ways – from intimidation to murder. But Kosovars are also resentful of the Hague court: they claim there was hoax in ICTY accusations – particularly, of organ trafficking.

To sum it up, the UN tribunal has failed to convince the public opinion about former Yugoslavia that it was free of bias and political motivation.

The grudge against the international community for failure to hold fair trials was especially evident in the last weeks of the ICTY’s work. Life imprisonment for Bosnian Serb army commander Ratko Mladic and the conviction of six Bosnian Croat political and military leaders, including Slobodan Praljak, touched off a wave of indignation among the Serbs and Croats. No voices were heard about the necessity to calm down and accept the court ruling.

LEGAL PERFECTION VS. PUBLIC PEACE

There are also some more general, “supranational,” complaints about the Hague tribunal – it takes an incredibly long time to handle cases. In comparison, the Nuremberg international trial of the former Nazi Germany leaders lasted from November 1945 until October 1946 and trials of lesser-caliber military criminals, also in Nuremberg, lasted until the 1950s. In other words, the whole process lasted for no more than 15 years, and it only took a year to convict the Nazi leaders.

The UN Security Council established the International Criminal Tribunal for the Former Yugoslavia in May 1993. The ICTY is terminating its mission only now, in December 2017, i.e., almost a quarter of a century on. Moreover, some appeals have not yet been handled and will be turned over to a temporary UN-established judicial body. This means that the tribunal will in fact continue to work no one knows how long.

It took the ICTY years to hold even “VIP trials.” For example, the trial of Slobodan Milosevic lasted for five years and stopped not because of the passage of a sentence but because of the defendant’s death.

The lengthy handling of cases may have contributed to finding perfect juridical wording, but, at the same time, it has been stirring up public opinion in the Balkans in the past 24 years and always provoking political speculations all around. A chronic discontent with the Hague court was one of the factors that led not only to the freezing of the old conflicts, but also to the accumulation of causes for new ones.

THE UNPUNISHED IDEOLOGY OF WAR

Today, 26 years after the beginning of an armed face-off in former Yugoslavia, the political and military leaders of those times still remain influential figures in their countries. Even the former Hague tribunal convicts easily regain a place in the current political life after being released from prison.

For example, the ICTY sentenced Momcilo Krajisnik, former speaker of the parliament of Republika Srpska, to 20 years in prison for ethnic cleansings in Bosnia and Herzegovina. Released on parole in 2013, he now heads the Republika Srpska Creators Association, is struggling for the rights of Serbs in Bosnia and Herzegovina, and preparing for the election campaign in Bosnia next year.

General Vladimir Lazarevic, the former commander of Serbian troops in Kosovo, was sentenced by the Hague tribunal to 14 years in prison for war crimes and crimes against humanity in 1998-99. He was released on parole in 2015.

Lazarevic is now a teacher at a Serbian military academy in Belgrade. In October this year, the general delivered his first lecture “Heroism and Humanity of Serbian Soldiers in the Defense against NATO’s Aggression.”

As the Hague tribunal functioned, Balkan politicians seemed to have understood that wars should be waged by humane methods, without ethnic cleansings and genocides. But very few have given up their ideological persuasions – among both the convicts and the populace of the Balkan countries. This is the most striking difference between “The Hague” and “Nuremberg.”

The ICTY was not aimed at condemning the ideology that led to the war. On the one hand, this considerably depoliticized the Hague court. But, on the other, today’s renaissance of the unpunished nationalist ideologies in the Balkans makes us doubt that the Hague tribunal has managed to ensure a durable peace in the former Yugoslavia.

By Natalia ISHCHENKO

НОВИНИ ПАРТНЕРІВ

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