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UN: The Hague Court's Legitimacy And Longevity Remain Uncertain

  • Jolyon Naegele

The trial of former Yugoslav President Slobodan Milosevic continued at The Hague today, marking the fourth day in a trial that could last two years or longer. RFE/RL correspondent Jolyon Naegele looks at the issues of the tribunal's legitimacy and longevity.

Prague, 15 February 2002 (RFE/RL) -- Former Yugoslav President Slobodan Milosevic has repeatedly challenged the legitimacy of the United Nation's International Criminal Tribunal for the former Yugoslavia (ICTY), where he is currently on trial facing charges of crimes against humanity and genocide. In his second appearance before the court on 30 August 2001, Milosevic stated, "I'm not recognizing this tribunal. I'm considering it completely illegitimate and illegal."

Many dismissed the former Serb leader's words as a defiant attempt to deflect attention away from his own culpability in the wars that devastated the Balkans over the past decade. But his remarks nonetheless raise the question: How legitimate is The Hague tribunal? Richard Dicker, a New York-based legal expert with Human Rights Watch, is attending the Milosevic trial. He says challenging the legality of the court is not likely to get the former Yugoslav president far.

"First, I think the challenge to the legitimacy of the tribunal is ill-founded and ill-conceived. This tribunal was established by the [UN] Security Council, acting under its powers to maintain international peace and security," Dicker says. "The Security Council has the authority to do that. So, I have not found convincing in any way the argument that this tribunal is illegitimate."

Dicker says the tribunal has demonstrated what he calls a commitment to basic fairness toward defendants: "The proof of that is the fact that Slobodan Milosevic is appearing in court without lawyers, and that was because he made the choice not to retain legal counsel to represent him in this case. His decision will make this trial a bit more complicated and difficult. But nonetheless, the judges, as they should, have respected that. So I think that what we've seen so far is evidence of a commitment to a fair trial, and we'll have to evaluate [it further] as the process moves on."

Ruth Wedgwood is a professor of international law at Johns Hopkins University's School of Advanced International Studies in Washington. She notes that the court has, in fact, already examined its own legitimacy -- in its very first case, that of Bosnian Serb Dusko Tadic. The tribunal tried Tadic in 1996 and convicted and sentenced him the following year to 20 years in prison for crimes against humanity and cruel treatment.

"There was actually a self-scrutiny by the court in the very first case they ever had, the Tadic case. He was a guard in one of the concentration camps. And the court looked at its own authority -- whether the Security Council was entitled to appoint such a court under Chapter Seven of the UN Charter -- and concluded after a long opinion that indeed the council did have that power," Wedgwood says.

Wedgwood dismisses suggestions the tribunal is politicized or representative of Western powers, saying the primary importance of the court is in delivering justice to the people of the Balkans.

"On a broader sense of legitimacy -- Is this good or bad for the Balkans, is it a politicized court? -- that's not really going to be a [justifiable] question. I think most folks in Serbia at this point are happy to be rid of Slobodan Milosevic and therefore even though many of the war crimes trials should be held at home, I think that at this point they might well regard The Hague tribunal as a very welcome godsend to get him off their hands," Wedgwood says.

The ICTY was established by the UN Security Council in 1993 and has already lasted longer than some leaders had expected or hoped. Its record is mixed. Milosevic is one of 11 defendants currently on trial in The Hague. In total, 67 defendants have appeared before the court, 31 of whom have been tried. But an additional 30 indictees are still at large, including Serbian President Milan Milutinovic, former Bosnian Serb leader Radovan Karadzic, and former Bosnian Serb military commander Ratko Mladic.

Wedgwood says the tribunal does not appear to be in any rush to reach closure on its mandate: "They are not barreling through their work. They've [tried] 31 defendants in eight years, not counting acquittals, at a cost of $400 million. So the original surmise of several countries that it might be a two-, three-, four-, five-year court [is low]. Just to try the people they already have indicted and who are in custody is going to take a good number of more years. So I wouldn't be surprised to see them working well into [this] decade."

But the president of the Soros Foundation Network's Open Society Institute in New York, Aryeh Neier, an expert on prosecuting war crimes, says he expects The Hague tribunal's days may be numbered.

"A lot of people are thinking about when the tribunal will come to an end. My own view is that it's difficult to end the tribunal until Karadzic and Mladic are arrested and brought to trial. And then one would need a certain amount of time if they are convicted, to allow them to appeal," Neier says." So I think at some stage a deal may be struck in which NATO will finally bring those defendants into The Hague and a date will be set for the expiration of the tribunal."

Although the tribunal has tried and convicted Serbs, Croats, and Bosnian Muslims, it has yet to indict any Albanian military commanders for their alleged crimes in Kosovo or Macedonia, although investigations continue. One Kosovar Albanian, Croatian Army General Rahim Ademi, was indicted -- albeit for crimes committed by the Croatian Army against Krajina Serbs in Croatia. He surrendered to The Hague tribunal in July.

Neier expects the tribunal will also indict certain Albanian leaders of the insurgent Kosovo Liberation Army. But he says some indictees need not be tried in The Hague, but rather on the territory of the former Yugoslavia.

"I think there will be an effort to make sure that defendants on all sides who have been indicted by the tribunal are actually tried by the tribunal. But it's also possible that if fair procedures are established in the different territories of the former Yugoslavia to try people locally, and the tribunal feels that it is confident that those trials would go properly, then it could yield jurisdiction to those courts," Neier says.

The tribunal has grown over the last nine years and now has a staff of nearly 1,200 people from 77 countries. Its budget for this year is $96.4 million.