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Bcs Final Comm Essay
Bcs Final Comm Essay
Contemporary/Communications in BCS
16 August 2012
The ICTY: Is justice achievable?
The United Nations Security Council created the International Criminal Tribunal
for the Former Yugoslavia (ICTY) on May 25, 1993. It was established as an ad hoc
tribunal and is located in The Hague, Netherlands. It currently staffs eight hundred and
sixty-nine people, of which include translators, members of defense teams, and
investigators. In recent years, national chambers have also been created to pass judicial
responsibility onto local courts in Serbia, Croatia, Bosnia Herzegovina, and Kosovo. For
instance, Serbia has the War Crimes Chamber of the Belgrade District Court and a War
Crimes Prosecutors Office; Croatia has Country Courts that specifically deal with war
crimes in Zagreb, Osijek Rijeka and Split; Bosnia has the Court of BiH, which was
created by the High Representative; and, Kosovo has mixed trial panels where
international prosecutors work in local courts in the region (Development of Local
Judiciaries).
The Court was created in response to the mass atrocities that occurred in the
Balkans in the early 1990s. It has four intents: to bring to justice persons allegedly
responsible for serious violations of international humanitarian; to render justice to the
victims; to deter further crimes; to contribute to the restoration of peace by promoting
reconciliation in the former Yugoslavia. I will focus on latter two, which deal with
bringing justice to alleged war criminals and for the victims. I will first analyze what
bringing justice to the perpetrators entails given the position of the ICTY as an
international body indicting war criminals. This will include an analysis of the problems
posed in the acquisition of evidence and witnesses and the meaning of a fair verdict when
concepts like command responsibility must be taken into account. I will also speak about
the consequences of international involvement in national affairs such as public disdain
and the weakening of local courts. Finally, I will address the second intent of bringing
justice to the victims. I will look at the costs and benefits of the ICTYs methods in light
of those of alternative rehabilitation attempts. Whether the consequences and price is
worth the ICTYs noble intentions is not for me to judge and truthfully, the judgment
cannot be made until the prosecutions have ended and the benefits have fully assimilated.
In this essay, I will simply help illuminate what the establishment of justice means in the
courtroom and for the people of Yugoslavia.
PART I: The First Intent--To bring justice to persons allegedly responsible for
serious violations of international humanitarian law
Securing evidence and witnesses
Bringing justice to victims is complicated by the ICTYs unique position as
international actor separate from the State and its national courts. Often times, the ICTY
risks overreaching its power during the judicial process. This is inherent in the judicial
procedure itself and primarily concerns the acquisition of evidence and appearance of
witnesses. Defendants have the right to due process of law and are entitled to garner and
present evidence in defense of their case. At the same time, Article 72 of the ICTYs
Statute decrees, a State may refuse to disclose evidence if doing so would prejudice its
national security interests (Toward an International Criminal Procedure: Due Process
Aspirations and Limitations, 35). Therefore, interests of the defendant and the state have
the potential to coincide. If the state refuses to release material, the defendant may be
deprived of vital information that could reduce his sentence or even potentially bring
about his acquittal.
The Prosecutor v. Blaskic case lends a prime example. Tihomir Blaskic was
indicted to The Hague as colonel of the Bosnian Croat army (HVO) for his involvement
in heinous crimes like having ordered or otherwise aided and abetted in the planning,
preparation or execution of the use of Bosnian Muslim civilians as human shields in order
to prevent the Bosnian Army from firing on HVO positions or to force Bosnian Muslim
combatants to surrender (Lava Valley (IT-95-14) Tihomir Blaskic). Critical to his
case were documents delineating military plans owned by the Croatian government. The
ICTY issued subpoenas to officials including the Defense Minister and the Custodian of
Records of the Central Archives. An appeal process lead by Franjo Tudjman ensued that
resulted in the withdrawal of the writs on the basis of Croatias national security interests.
Blaskic was convicted and given forty-five years in prison (Toward an International
Criminal Procedure: Due Process Aspirations and Limitations, 36). Upon Tudjmans
death, these documents were released and the new evidence was used in an appeal
process that decreased Blaskics sentence to a mere nine years.
Furthermore, even if the authority of the subpoena standswhether for a search,
seizure, arrest, and etceterathe ICTY has no control over the way in which the order is
carried out; there is no international standard pertaining to the way in which a suspect is
arrested or evidence secured. Instead, the responsibility falls on the sovereign national
courts. The ICTYs disconnect between authority and control jeopardizes due process of
law and yields the court unable to prevent crimes like privacy infringement and unfair
detention tactics like withholding the right to remain silent.
The types of witnesses were also limited. The ICTY had limited access to people
inside the former Yugoslavia and so especially in the beginning, the majority of witnesses
were those who had been expelled or were refugees. Accordingly, the testimonies are
often restricted to the perspectives and memory of these people. This limits the pool of
alleged war criminals against which the prosecutors can wage a successful trial to mainly
low and middle-level detention camp officials. Justice was thereby jeopardized as the
prosecution of these people congested the Court, and trials against those in higherranking agents were delayed or even prevented.
Obstacles that do not pertain to the judiciary process of the ICTY also stand in
the way of the court administering justice. As delineated in Article 68 of the Rome
Statute, the Court has extensive measures to ensure protection for those who are at risk on
account of testimony. They have a Victims and Witness unit that advises the Prosecutor
and the Court on appropriate protective measures, security arrangements, counseling and
assistance as well as a statute that prevents the disclosure of evidence or information
[that] may lead to the grave endangerment of the security of a witness or his or her
family (Rome Statute of the International Criminal Court, Part 6 The Trial). However,
thesemeasuresprovetobeunsubstantialandwithoutmuchinfluence.Defendants often
have much political clout and money and use their privilege to avoid conviction by
intimidating and even murdering witnesses. They also have been known to order the
destruction of evidence.
In the end, Ori was acquitted on all accounts but the third and sentenced to only
two out of the eighteen possible years imprisonment. Examination of the Sentencing
Judgment shows that the verdict was largely contingent on several factors:
These [being] some co-operation with the Prosecution, some expressions
of remorse, the Accuseds expressed readiness to surrender to the Tribunal if
indicted, his young age at the time the crimes were committed, his family
circumstances, acts of consideration towards Serb detainees, co-operation with
SFOR, his general attitude towards the proceedings, and, most importantly, the
general circumstances prevailing in Srebrenica and those particular to the Accused
and to the crimes committed (ProsecutorV.NaserOric:SummaryofJudgment).
However, the pivotal mitigating factor involves the nearly anarchical state in which he
commanded; there was an unmanageable influx of refugees, critical shortages of good
and other essentials, general chaos and the flight from Srebrenica of all pre-war
authorities. The Court ruled that these were circumstances when at age 25, without any
relevant military and administrative experience the accused could not have commanded
properly and with control. He had to rely on local leaders, some of whom not only
chose to act independently, but even considered him inexperienced and scorned his
authority (ProsectuorV.NaserOric:SummaryofJudgment).TheICTYsideaofjustice
goesbeyondanempiricalrulingofacertaincrimedeservesacertainpunishment
regardlessofsituation.Justiceisverycircumstantial,andtheICTYruleswith
compassionforthedefendantbytryingtounderstandtheconditionsandpressureto
whichheissubjectedwhenhemakeshisdecisions.
CommandResponsibility
OneofthecomplicationsofaffordingjusticethattheICTYfacespertainstothe
ideaofcommandresponsibility.Article7(3)oftheStatuteexplainstheconceptby
sayingthatacrimecommittedbyasubordinatedoesnotrelievehissuperiorofcriminal
responsibilityifhekneworhadreasontoknowthatthesubordinatewasabouttocommit
suchactsorhaddonesoandthesuperiorfailedtotakethenecessaryandreasonable
measurestopreventsuchactsortopunishtheperpetratorsthereof(Rome Statute of the
International Criminal CourtInternationalcriminaljustice).Oricscaseprovidesaprime
exampleofthesedifficulties,andtheSummaryofJudgmentsayshissentencingreflectsa
situationofuniquelylimitedcriminalresponsibilityduetoabysmalpersonaland
circumstantialconditions.TheuniquerelationshipbetweenOricandhissubordinates
createdinthetimeofwarwasofthemostimportance.Analysisoftherelationshipis
pronetosubjectivity.Itisdependentonabstractideaslikeacommandersinfluenceand
factsthatarelessconcretelikeacommandersawarenessandpersonalstrain.The
ICTYsverdictsarepronetothisuncertainty,makingjusticehardertoachieve.
RepercussionsofAdministeringJustice:PublicOpiniononWarCriminals
The relationship between war crimes and success in Serbian polls was not a
singular instance either. The trend can again be seen in the case of Vojislav Seselj. He was
transferred to the International Criminal Tribunal for the Former Yugoslavia (ICTY) on
February 24, 2003 on charges of crimes against humanity and violations of the law and
customs of war against Croats, Muslims and non-Serb civilians including persecutions on
radical or religious grounds, deportation, inhuman acts, devastation not justified by
military necessity, willful damage done to institutions dedicated to religion or education,
etcetera ((IT-03-67) Vojislav Seselj). In that same year, his Serbian Radical Party (SRS)
garnered twenty-eight percent of the total votes in the parliamentary elections. The
presidential and local elections of the following year brought similar results: his party lost
President Boris Tadics Democratic Party by a close margin (Stop to the Hague).
The discrepancy between international and Serbian public opinion raises
questions about justice and the involvement of the International Criminal Court in local
politics. Many Serbians derive spite for the Court in that they see international
involvement in local politics as an unwarranted use of power and overreach of
jurisdiction; in other words, as citizens of Serbia, Milosevic and Seselj should have be
tried in Serbian national courts. Since the Court is not an entity of their own country, the
Serbs see the courts as appendages of Western countries perpetuating Western beliefs and
prerogatives. They believe that their own concerns are only second to international ones.
The perceived subjugation of Serbian interests has unintended consequences for the
progress of democracy and has bolstered nationalistic sentiments. The International
Criminal Court has inadvertently become the enemy, giving Serbs a common opponent to
rally against and someone to blame for their poor standards of living. Politicians use this
anger to their advantage and wage campaign based on their opposition to the ICTY and
Serbian victimization.
Another Repercussion: Atrophy of National Courts
Another consequence of international involvement involves the atrophy of
national courts. The ICTY takes the responsibility of prosecuting alleged war criminals
away from courts in the former Yugoslavia who thereby are not forced to adapt and learn
the distinct legal procedures necessary to try war crimes. The ICTY is very much aware
of this possibility. As a result, in 2004, the ICTY enacted its Completion Strategy with the
intent of transferring the job of war criminal prosecution to the courts of Serbia, Bosnia,
and Croatia. The court has stopped issuing new indictments and has transferring many
cases of less importance to national courts. The ICTY has also began working to help
local prosecutors open up their own cases against suspected criminals by providing them
with evidentiary materials and imparting knowledge about the judicial process pertaining
to war crimes (Capacity Building).
PART 2: The Second Intent--To render justice to the victims
The second intent pertains less to the complications and repercussions of
international involvement and the administration of verdicts, and more to do with what
justice means to individuals in the former Yugoslavia.
International Commission on Missing Persons (ICMP) has helped account for through
DNA testing. The organization has successfully identified seventy-percent of the forty
thousand persons determined as missing from the Yugoslav conflicts. Such measures help
bring closure to wives, husbands, friends, and family. The identifications end the painful
speculation of the victims loved ones and allows them to move forward with their lives,
while the memorials ensure that what happened is never forgotten.
Conclusion: Current State of the ICTY
The ICTY has taken valiant strides towards bringing justice to the former
Yugoslavia after the terrible atrocities that occurred during the early nineties. Inherent in
their attempt as an international actor to reach just verdicts have been problems such as
state compliance and availability of proof that have jeopardized their quest for justice.
Naturally, their involvement has repercussions like public disapproval and local court
atrophy. Money and time have also inhibited bringing justice to the victims, and some
wonder if alternative methods may be more effective.
The aforementioned problems are still as prominent today as they were during the
ICTYs inception. Radovan Karadzic, a founding member of the Serbian Democratic
Party (SDS), is accused of committing genocide against a part of the Bosnian Muslim
and/or Bosnian Croat national, ethnical, and/or religious groupsfrom the territories of
BiH claimed as Bosnian Serb territory particularly in Srebrenica where he participated
in a joint criminal enterpriseby killing the men and boys of Srebrenica and forcibly
removing the woman, young children and some elderly men from Srebrenica. He is also
accused of establishing and implementing a military strategy that used sniping and
shelling to kill, maim, wound and terrorize the civilian inhabitants of Sarajevo ((IT95
5/18)RadovanKaradzic).AlthoughhistrialhasbeengoingonsinceOctober26,2009
andtheDefensecaseissupposedtoconcludeonOctober16,2012,herecentlysubmitted
adocumentrequestinganewtrial.Hemaintainsthathundredsofthousandsofpagesof
documentscontainingevidencethatwouldhaveaidedhistrialwasnotdisclosedassoon
aspracticable(Karadzic wants a new genocide trial).
TheissuereflectsnotonlytheproblemstheICTYhasfacedinsecuringevidence,
butalsoemphasizestheproblemoftheICTYsinefficiency.TheretrialofKaradzic
wouldtakemanymoreyearsandputtheICTYsclosuredeadlineof2016injeopardy.
The continuing difficulties in bringing justice to the perpetrators and for the victims make
some question the worth of the ICTY. However, if anything, the ICTY is important
because it is part of a trend that began with the Nuremburg Trials of ensuring that war
crimes do not go unacknowledged.
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