The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by the UN Security Council resolution 827 on 25 May 1993. Since its establishment, on hundred and sixty one people have been indicted for serious violations of international humanitarian law committed in the territory of the former Yugoslavia, and yet of these only one hundred and thirty three have appeared before the tribunal to date and only forty-five have been found guilty. The question that arises is why only a minority of the perpetrators have been sentenced and how in some cases they are still able to evade arrest. After all, it has been over fifteen years since the wars in Bosnia-Herzegovina, Croatia and Kosovo started.
In comparison, the International Military Tribunal was set up by the Allies at Nuremberg on 8 August 1945, a mere three months after VE Day. The tribunal charged top members of the Nazi regime with war crimes, genocide and crimes against humanity and all but two were convicted and sentenced. It completed its proceedings and was dissolved on 13th April 1949, just four years after the war. Though the Nuremberg trials were by no means flawless, they undeniably brought the higher echelons of those responsible for the Holocaust to justice.
Yet there are some key differences between the ICTY and the Nuremberg trials which underline the ICTY’s fundamental weaknesses. Firstly, the ICTY was convened during and not after the war. Therefore, it lacked the authority of the Allies’ tribunal after the Second World War. Subsequently, this meant that unlike Nuremberg, the ICTY had no control over the war criminals it indicted and many of the accused were not apprehended until years later. The complications of securing evidence in a war zone are also evident, as forensic teams ascertaining the extent of ethnic cleansing could not operate until after the end of the conflict in 1995.
Secondly, the location of the tribunal has always been faced with criticism. The geographical distance between the Hague in the Netherlands and the nations in question make recognition of legitimacy very difficult. There is a distinct lack of acceptance of the court’s jurisdiction from both victims and perpetrators. Though the trials should be setting an example, the danger of revisionism and historical denial in the region is imminent.
Thirdly, the ICTY concentrated on the small fish for too long. The first indictment was against Duško Tadic, a Serbian prison camp overseer charged with the torture and murder of 17 Bosnians, a small number compared to the mass killings and systematic rapes committed by others. His and many similar cases could have been taken care of just as well in national courts. Unlike Nuremberg, the ICTY insisted on delaying the trials of high ranking Serbian war criminals until it had dealt with minor accused persons, which ultimately resulted in the failure to prevent another war and further ethnic cleansing in Kosovo in 1998.
Consequently and perhaps most importantly, the ICTY has failed in its original and most basic aims. In its founding charter, the ICTY lists among its objectives the “intent to deter further crimes.” But some of the most gruesome atrocities were carried out after the ICTY began operating. Just one example is the Srebrenica massacre, in which Serbian forces systematically murdered eight thousand Muslim men and boys in July 1995. Again underlining the tribunal’s failure, the two men responsible for Srebrenica, the former president of the Serbian Republic Radovan Karadžic and his military commander Ratko Mladic, have still not been arrested. Both are thought to be receiving assistance from Serb nationalists.
A further aim of the tribunal was to make individuals “accountable regardless of their position” and indeed for the first time in legal history an acting head of state, Slobodan Miloševic, was indicted. However, in 2004 Serbia-Montenegro passed legislation which guarantees indicted Serbian war criminals appearing in the Hague full salaries and pensions, plus compensation for their families and for legal expenses. Family members also get four expense-paid trips to the Netherlands to visit indicted loved ones. The Serbian Republic (”Republika Srbska” in its own language), the Serb-controlled part of Bosnia, offers a cash bonus of €25,000 for any accused war criminal who surrenders, and according to media reports the Serbian general Vujadin Popovic received $1 million when he turned himself in on 14 April 2005. Ironically, the ICTY was set up by the international community to bring war criminals to justice-not to reward them.
With the death of Slobodan Miloševic at the ICTY detention unit in the Hague on 10 March 2006, critics once again posed the question of how effectively the tribunal brings justice to the victims of Serbian aggression. Miloševic was charged on sixty-six accounts for war crimes and genocide but, though many of the charges had been processed, the ICTY’s regulations made it impossible for him to be sentenced until all charges were presented. Many critics see the fact that he can now never be sentenced as both a legal and moral tragedy. The leading ICTY prosecutor Carla Del Ponte claims that Miloševic would have been sentenced before the end of the year but the fact remains that he was arrested in 2000 and the ICTY’s slow pace of prosecution is definitely not helping the reconciliation process in the region.
Since the start of proceedings in 1993, the court has heard the testimony of almost four thousand witnesses in court, while a further one thousand four hundred potential witnesses were interviewed by the Prosecution. The ICTY has a staff of about one thousand two hundred and its budget in 2004 came to nearly $136 million. One would think that with these resources, charging war criminals would be fairly simple, but taking the evident failures and high costs into account, the UN Security Council decided in 2004 that there could be no more new indictments, and that the tribunal would have to dissolve by 2008.
So what will be the ICTY’s legacy? Serbians still revere their war criminals as national heroes and see the tribunal as further evidence that the international community holds them solely responsible for the conflict. Croatia is angered that Carla Del Ponte, with support from Britain’s Jack Straw, blocked its EU application last summer, on the basis that she had proof the indicted general Ante Gotovina was hiding there. He was arrested in Spain on 7 December 2005, but so far nobody has commented that Del Ponte’s facts were not as accurate as she claims. No one will ever doubt that the ICTY’s aims of bringing war criminals to justice were anything less than noble and necessary. But as the tribunal is forced to dissolve, nobody can truly claim that it has achieved what it set out to do.