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Autumn Johnson

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.

The Length and Severity of Verdicts


On the most fundamental level, the number of verdicts administered can measure
the ICTYs success of bringing war criminals to justice. Since 1996, the Court has ruled
on one hundred cases. Aside from the times in which the guilty plea was not informed
and a new one will be entered, the sentencing will be rendered later, or the verdict will
be remitted to the Trial Chamber for possible adjustment, one hundred and forty three
people have been convicted and twenty-three acquitted. The sentences range from as little
as two years to as much as a life imprisonment (Judgment List).
Examination of length and amount of sentences shows that ICTYs quest for
justice is unique to the Courts own values and limited by its own jurisdiction and means.
For instance, the most severe punishment imposed is life imprisonment; capital
punishment is not used. Under Referral of the Indictment to Another Court, the Rules of
Procedure and Evidence says, the accused will receive a fair trial and that the death
penalty will not be imposed or carried out (Rules and Procedure of Evidence). Added as
an amendment on June 10, 2004, the decree stands in stark contrast to that of the
Nuremburg Trials in which eleven out of twenty-two defendants were sentenced to death
and hanged at Spandau Prison (The Nuremberg Trials: The Defendants and Verdicts).
Moreover, a merely explicit comparison between of length of sentences imposed by the
ICTY and the International Military Tribunal held at Nuremberg shows a disparity
between the severities of the verdicts. The shortest sentences given in Nuremburg were
ten years imprisonment, whereas sentences in The Hague routinely fall under that mark.
Of course, there are many variables that could contribute to the difference: most
obviously, the severity of the crime and the aforementioned difficulties the ICTY has
faced in securing evidence and witnesses.
Nonetheless, to an outside observer, the relatively short sentences given to
individuals so deeply entrenched and playing so integral part in the genocide and
atrocities committed in the former Yugoslavia seems rather contradictory. This is
especially true given that it takes a high degree of involvement for a prosecutor in the
ICTY to open up a case against an individual in the first place; the ICTY never had the
purpose or the capacity to prosecute all those who perpetuated war crimes. To reach a
better idea of the way in which the ICTY reaches its verdicts, I will review the case of
Naser Ori who was sentenced to two years imprisonment.
Naser Ori was a Bosnia Muslim accused on three accounts for crimes committed
in cities, towns, and villages alleged to have happened in Srebrenica in 1992 and 1993.
The first and second accounts pertained to the murder and cruel treatment of prisoners
and the third account to the wanton destruction of cities, towns or villages. He was
never indicted for committing murder and cruel treatment directly, but instead for being
responsible for those acts committed by subordinates under his command. In other words,
he was accused of not preventing the crimes and not punishing his subordinates for
perpetrating them. Individual criminal responsibility was assumed on the third account.
At this point it is important to note that Ori was initially charged with two more counts
pertaining to the plunder of public or private property but was acquitted early at the
Trial Chamber who concluded that the Prosecution had not provided sufficient evidence
to make these claims substantial (ProsecutorV.NaserOric:SummaryofJudgment).

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

Furthermore, the international administration of justice with national judicial


issues has repercussions that can negatively affect the community and court system of the
country in question; so, it is important to examine the costs of the international
intervention while holding in mind the benefits of bringing a certain war criminal to
justice.
On the streets of Belgrade, kiosks sell Slobodan Milosevic memorabilia: shirts,
buttons, posters, and items of that ilk. They are little nods towards the former President,
reflecting sentiments of respect for his person and nostalgia for his rule. Some viewed
him as a reincarnation of Prince Lazar, a war hero who led the Serbian Empire in the
Battle of Kosovo. Of course, Milosevic worked hard to embody such an image. On June
28, 1989, the Battles six hundredth anniversary, Milosevic held a Hollywoodized
television event on the fields of Gazimestan in which he evoked the memory of the
Prince and spoke to an enormously enthusiastic crowd (Media Wars, 107). The high
esteem that a portion of the Serbian population held for Milosevic is diametrically
different from that of the international community. Tony Blair, Former Prime Minister of
the United Kingdom, described him as a brutal dictator and a serial ethnic cleanser
who carried out the most appalling repression of [his] poor defenseless people and was
only interested in maintaining himself in power; Doctor Jerrold Post, Director and
Founder of the Political Psychology Center for the Central Intelligence Agency (CIA),
said, Milosevic [had] a very dangerous personality but I do not believe he fits a classical
personality disorder. He [did] have an absence of scruples. He [was] extremely aggressive
and he [would] do whatever [was] necessary to survive (The Mind of Milosovich).
With help from American and British intelligence and overall pressure from the
international community through sanctions, Serbia handed Milosevic over to The Hague.
The decision was made with much hesitancy and met by much disproval. The
government was split: Prime Minister Zoran Djindjic supported the extradition because
he wanted the approval of and economic assistance from the international community,
while President Kostunica described the act as a sacrificing national dignity for a
handful of dollars (Kostunica Rejects Quick Hand-Over of Milosevic). There was much
protest against the extradition, especially by the Red Beretsan elite special unite with
ties to Milosevic. When Djindjic was assassinated on March 12, 2003, members of the
Red Berets were detained including Jovica Stanisic, Milosevics former secret-service
chief and founder of the organization. Therefore, some say that Djindjic was murdered
because he facilitated Milosevics extradition and supported further extraditions to The
Hague (Arrests in slaying of Serb prime minister).
Milosevic stood trial starting on February 12, 2002 and ending on March 14, 2006
with his death. He faced indictments for crimes in Kosovo, Croatia, and Bosnia and
Herzegovina, and the charges included actions like deportation, murder, persecutions on
political racial or religious grounds, and other inhumane acts/forcible transfer, cruel
treatment, wanton destruction of villages, willful damage done to historic monuments and
institutions dedicated to education or religion, plunder of public property, unlawful
confinement, willful killing, etcetera ("Kosovo, Croatia & Bosnia" (IT-02-54) Slobodan
Milosevic). Despite these seemingly career-ending allegations, Milosevics Socialist
Party (SPS) managed to receive seven percent of the vote in Serbias parliamentary
elections in December 2003 (Stop to the Hague: internal versus external factors
suppressing the advancement of the rule of law in Serbia).

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.

Bringing Closure to the Victims


The intent of the ICTY to provide the victims with closure is complicated by the
slow nature of the court proceedings. The court has come under much scrutiny and
criticism for inefficiency as it takes years to prosecute and even longer to convict war
criminals. A prime example can be found in the case of Ratko Mladic. He played an
important part in both the Srebrenica massacre and the Siege of Sarajevo, first as the
Appointed Commander of the Main Staff of the Bosnian Serb Army (VRS) and then as
Colonel General ((IT-09-92) Ratko Mladic, cite). He is charged on the basis of individual
criminal responsibility and superior criminal responsibility with two counts of genocide
and persecutions, extermination, murder, deportation, inhumane acts, terror, unlawful
attacks on civilians and taking of hostages. Despite his high-ranking positions in the VRS
and almost undeniable participation in the aforementioned acts, Mladic was only
transferred to The Hague in 2011sixteen years after the worst atrocities were
committed and only with the issuance of a total of four amended indictments. The trial
finally started on May 16, 2012. There are plans to end all proceedings by December 31,
2014 as decreed by the United Nations Security Council; however, this deadline is
dubious given the Courts history. The Court can be seen as a body that actually prolongs
the victims closure process. Not to mention, some question whether the ICTY can bring
the victims closure whatsoever. Many victims maintain that closure is not achieved
through an international body so removed from their daily lives. In their minds, legal
proceedings are mere abstract concepts devoid of emotional importance.
Other Rehabilitation Methods
Some argue that the international money put towards the cause by the one
hundred and twenty states that have ratified the Rome Statute would be better spent in
other ways. The argument is particularly notable as the ICTY is often accused of being
too expensive. Since the Courts inception in 1993, the annual budget has increased by
from $276,000 to $301 million (Ten years, $900m, one verdict: Does the ICC cost too
much?). The question then becomes one of cost-benefit. Instead, this money could be
spent more effectively through other methods that promote rehabilitation and bring
justice to the victims.
Alternatives include the construction of memorials and the unearthing,
identification and the reburial of those killed and dumped in mass graves. The Srebrenica
Genocide Memorial was built to honor the victims of the genocide in 1995. The grounds
of the memorial are shaped in a flower petal formation and complete with almost six
thousand white tombstones and a car battery manufacturing plant turned museum,
housing pictures that tell the story of the massacre. It took only one year to construct and
cost roughly $5.8 millionone fiftieth of the ICTYs annual budget. The Memorial has
continued a legacy of promoting reconciliation since its inception. Most recently, on July
12, 2012, roughly seven thousand people marched from Nexuk to Srebrenica to honor
those who died. Elvir Hafizovic, one of the marchers as well as a survivor of the
genocide, said, This is a good way to commemorate what we went through, and to
ensure that people remember this event (Marchers Form Living Monument to Horror
of Srebrenica). The event ended with the burial of five hundred and twenty bodies from
the original massacre. These bodies are among roughly seventeen thousand that the

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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Stop to The Hague, Contemporary
Media Wars, Communications

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