As the UN war crimes tribunal approaches its 20th anniversary, activists and legal scholars are calling for a comprehensive review of its work.
But their critique differs sharply from the one persistently offered by Serbia.
On April 10, the UN General Assembly held a controversial debate about the International Criminal Tribunal for the former Yugoslavia (ICTY) in which senior Serbian officials alleged that the court was little more than an "inquisition" directed against their country.
The debate was initiated by former Serbian Foreign Minister Vuk Jeremic, currently president of the General Assembly. It was criticized as one-sided and sparked a walkout by the U.S. delegation.
However, Richard Dicker, director of the International Justice Program at Human Rights Watch, maintains that an honest review of the ICTY is desirable -- not because the Serbian allegations have merit, but to set the record straight:
“There’s a need for a review because we are approaching the 20th anniversary of the establishment of the tribunal," he says. "Clearly, the tribunal is winding down. It’s beginning its closure process. It’s essential and responsible to do a careful, thoughtful, critical review. Everyone who is committed to bringing justice for these crimes -- to seeing victims get redress -- wants the system to work better.”
In contrast to Serbia's critiques, which focus on the court's verdicts, legal experts like Dicker are concerned more with procedural issues like the length of trials, the treatment of evidence, and outreach efforts.
The ICTY was created by a UN Security Council resolution in May 1993. It marked a major step in the development of international justice -- the first such international court since the Nuremberg and Tokyo war crimes trials at the end of World War II.
One of the main criticisms of the ICTY has been the slow pace of proceedings.
Former Yugoslav President Slobodan Milosevic is a case in point. Milosevic’s trial on charges of genocide and crimes against humanity dragged on for four years, from 2002 to 2006, until Milosevic died in custody before a verdict was reached.
Dicker says a full review of the expediency issue should focus on how future war crimes trials can be faster while still respecting the rights of the accused to a fair trial.
The late Yugoslav ex-President Slobodan Milosevic (right) on trial at The Hague in 2004
Phillippe Sands, a professor of law at University College London and a lawyer involved in several genocide and crimes against humanity trials in the international courts, suggests that the length of the ICTY’s earliest trials reflected the fact that the court was in "new, untried, untested waters."
He believes a review should look into the range of charges being filed against suspects.
"That has obviously been an issue which has slowed down proceedings," he says. "There is a broad recognition that in some of the cases, the initial charges -- both in terms of investigation and actual prosecution -- were probably too great, too large, which meant that the trials ran on. The judges reacted, and I think they sent certainly signals to the prosecutor’s office to be more narrowly focused. And I think that’s had consequences. Particularly as the tribunal runs down now, things are moving faster."
International human rights activists say a review of the ICTY also should scrutinize the leadership and direction provided by the judges, including their treatment of evidence. One criticism of the Milosevic trial was that judges allowed him to call for lengthy testimony from an enormous number of witnesses.
According to Sands, the way such evidence is treated in an international court ultimately depends upon the composition of the bench.
"As with every national and international court, the background of the judges differs -- the linguistic background, the cultural background, the working methods, the quality of the judges. Bear in mind that when you’ve got an international tribunal, you’re bringing in people from different legal backgrounds who have to work together, and things go in different ways," Sands says.
"For example, the treatment of evidence is very different in the civil-law countries like France, or Italy, or Germany on the one hand, than it is in a common-law country like the United Kingdom, or the United States, or South Africa, or India. So you’ve got a sort of coming together that inevitably slows things down."
Justice Vs. Reconciliation
Dicker suggests that another early problem at the Hague tribunal was its failure to communicate efficiently with residents of the Balkan communities where the war crimes were committed.
"The tribunal was late in trying to make its proceedings meaningful and accessible in the communities most affected by the crimes," he says. "That was a fault on the part of the tribunal’s creators. The tribunal did not have an outreach program until close to the year 2000. That effort to explain what it was doing was never funded out of the UN budget, but in fact, was funded by voluntary contributions from states and private individuals."
Diplomats, politicians, and nongovernmental organizations also admit that they initially overstated the ability of the tribunal to foster reconciliation in the Balkans. "Reconciliation is a very tall order for a court of justice," says Geraldine Mattioli-Zeltener, the advocacy director in the International Justice Program of Human Rights Watch.
"The mandate of the tribunal, at the end of the day, is to bring to justice those responsible for the most serious crimes and to establish the truth about those crimes and what happened. Reconciliation is a much broader notion that involves a lot of emotions beyond what the ICTY can handle, really. If we look at the past in Europe and elsewhere, it takes a lot of time."
While the ICTY made steps toward creating an objective record and establishing the facts about Balkan war crimes during the 1990s, many argue it has created more resentment than reconciliation between Serbs, Bosnians, Croatians, and Kosovar Albanians.