Fordham International Law Journal Volume 23, Issue 2 1999 Article 10 The Role of the ICTY in the Development of International Criminal Adjudication Ivan Simonovic_ _ Copyrightc 1999 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). ir.lawnet.fordham.edu/ilj The Role of the ICTY in the Development of International Criminal Adjudication Ivan Simonovic Abstract This Essay examines the specific conditions and motives that led to the establishment of the International Criminal Tribunal for the Former Yugoslavia (‘Tribunal‘ or ‘ICTY‘), its features as both a legal and a political institution, and the role of the ICTY in the development of international criminal adjudication. First, this article discusses the establishment of the ICTY. Second, this article discusses the role of the ICTY as a political and legal institution. Third, this article explores the role of the ICTY in the development of international criminal adjudication. Finally, this article evaluates the results of the ICTY to date. THE ROLE OF THE ICTY IN THE DEVELOPMENT OF INTERNATIONAL CRIMINAL ADJUDICATION Ivan SimonovW* I. THE ESTABLISHMENT OF THE ICTY Just a few years ago, the idea of the establishment of an international war crimes tribunal seemed noble yet unrealistic, and the possibility of its realization very distant. Today we have ad hoc tribunals for the former Yugoslavia and Rwanda, and the process of the establishment of a permanent international criminal court (or ICC) has advanced considerably. Why has there been such a change in so short a time? What future developments in this area are to be expected? This Essay examines the specific conditions and motives that led to the establishment of the International Criminal Tribunal for the Former Yugoslavia (Tribunal or ICTY), its features as both a legal and a political institution, and the role of the ICTY in the development of international criminal adjudication. In order to understand the emergence of the ICTY, it is necessary to put it into historical and political context.2 It has been said that the states and nations of southeast Europe are burdened by historical divisions and an ethnic patchwork that has led to the area becoming a living case study for the clash of civilizations thesis. Indeed, living within a relatively small area are several national groups, the adherents of three major religions, diverse cultures, as well as differing levels of economic development and political tradition. In spite of this, southeast Europe is not necessarily condemned to conflict any more so than the rest of the Old Continent. Its emergence as the primary European security issue at the end of the twentieth century can be * Permanent Representative of the Republic of Croatia to the United Nations in New York; Professor of Law at the University of Zagreb. 1. The Security Council resolution on its establishment named the new court the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia, see S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993) [hereinafter ICTY Statute]. 2. For more extensive information, see I. Simonovic & I. Nimac, Stabilizing Southeast Europe, 5 CROATIAN INTL REL. REV. No. 15 (1999). 440 THE ROLE OF ICTY attributed to the co-terminous incidence of several events, most notably the rise of nationalism in the Socialist Federal Republic of Yugoslavia (or SFRY) at the time when communist rule came to an end, and the security vacuum that arose at the end of the Cold War. The conflict that began to spread through southeast Europe at the beginning of the 1990s, while having identifiable roots, was not unavoidable. It was the result of a course of events in which domination-oriented Serbian nationalism led by Slobodan Milosevic supplanted the previous communist ideology in Serbia, the largest federal unit in the SFRY, and clashed with the defensive nationalisms and state building aspirations of the other peoples and federal units. The confluence of these events with the end of the Cold War, and the attendant need for the redefinition of the roles of the European Union and United States in the period to follow, impacted upon the response of the international community to the emerging crisis. The initial steps taken proved to be slow, indecisive, and unresponsive to the far reaching geopolitical changes that had taken place. Despite differences in approach, the international community was, for the most part, passive towards the dissolution of the SFRY. While certainly not encouraging them, the international community reluctantly tolerated the quest for independence of the newly emerging states. Unfortunately, this passivity extended to the period in which the Serb-controlled former Yugoslav National Army moved against the new states. The lack of clarity about the roles in the protection of peace and security in Europe at the end of the Cold War left Milosevics aggression unopposed by an adequate response. Early in the crisis, the United States was happy to go along with the assertion of Luxembourgs Foreign Minister that the challenge of resolving matters was the hour of Europe. We have no dog in this fight was James Bakers somewhat less famous, though erroneous, summation of the impact upon U.S. interests of the escalating crisis, following his visit to Belgrade in 1990. With reason, this position was subsequently widely seen as having been interpreted by Milosevic as a green light. Hence, while the United States waited for Europe to resolve the trouble in its midst, the European Community, unprepared for this new role, preoccupied with its internal affairs and divided by the divergent interests of its member states, failed the test. 442 FORDHAMINTERNATIONAL LAWJOURNAL [Vol. 23:440 While it can certainly be said that violations of the laws of war occurred on all sides during the ensuing conflicts, the horrendous atrocities committed by the Serbian forces associated with ethnic cleansing propelled international humanitarian concern to the forefront.3 At the time of the occupation of Vukovar, Croatia in November 1991, the international community watched with horror and disbelief as columns of refugees left their homes in tears, victims of the deliberate and planned policy of ethnic cleansing. These pictures and subsequent information on the massacre of the wounded at the Vukovar hospital simply did not fit into the optimistic image of the 1990s Europe that had witnessed the fall of the Berlin Wall. It was the pressure of world public opinion, viewers of the media with global coverage bringing the reality of the horror to millions of homes that were the catalyst for a response from the international community. Given its earlier intervention in Iraq, the U.S. Administration was not eager to get directly involved, and Europe preferred recourse to multilateralism as well. The fact that the end of the Cold War had brought a period of better understanding between the permanent members of the Security Council enabled the United Nations to become actively involved. As a reaction to the gross violations of human rights and humanitarian law resulting from the aggression against the Republic of Croatia and continuing aggression on Bosnia and Herzegovina, the institution of the United Nations Special Rapporteur on the human rights situation in former Yugoslavia was introduced in 1992. The reports of the Special Rapporteur confirmed what was widely suspected.5 Horrendous war crimes were being committed in a systematic manner. As a next step the Security Council established a Commission of Experts to investigate alleged violations of humanitarian law in October 1992.6 The Commission of Experts received information from governments, but also 3. See Christopher C. Joyner, Enforcing Human Rights Standards in the Former Yugoslavia: The Case for an International War Crimes Tribunal, 22 DENV. J. INTL L. & POLY. 235, 236 (1994). 4. For an insiders description of the events preceding the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the establishment itself, see Ralph Zacklin, Bosnia and Beyond, 34 VA. J. INTL L. 277, 277-81 (1994). 5. See M. Cherif. Bassiouni, Former Yugoslavia: Investigating Violations of International Humanitarian Law and Establishing an International Criminal Tribunal, 18 FORDHAM INTL L.J. 1191, 1202 (1995). 6. Informal discussions within Security Council whether to name the body CoinTHE ROLE OF ICTY carried out its own investigations. Although its mandate did not include investigations for the purpose of prosecution of individual crimes, it was an obvious precursor to the establishment of the Tribunal-should it be needed. Continuing events proved that it was indeed needed. The scale of atrocities committed and resultant human suffering in Bosnia and Herzegovina during the winter of 1992-93 brought the final push for the establishment of the ICTY. In February 1993, the Security Council unanimously adopted a resolution requesting the Secretary General to submit for its consideration a report on the way in which to establish a tribunal, accompanied by specific proposals. At the time there was considerable doubt and skepticism within the legal community, including among international legal advisers regarding this endeavor. Within less than than 100 days, however, on May 25, the ICTY had come into existence by virtue of the adoption of Security Council Resolution 827 that accepted the Secretary Generals report, including the Tribunals Statute. 9 The Tribunal was established under Chapter VII of the U.N. Charter (Charter) as an enforcement measure. The Security Council recognized the existence of a threat to international peace and security under Article 39 of the Charter, and decided that, in terms of Articles 7(2) and 41, the establishment of a subsidiary organ for the performance of judicial functions was needed to maintain or restore international peace and security. 1 Because of its judicial nature, the Tribunal was required to perform its functions independently of political considerations and the control of the Security Council. Much was left to the discretion of the future judges. The statute of the Tribunal consists of just thirty-four articles, leaving it to the panel of judges to elaborate the rules of procedure and evidence. The judges themselves are selected in their individual capacity by the General Assembly. The statute authorizes the Tribunal to deal with individuals responsible for four different categories of crimes: mission or Committee and whether its mandate would be to investigate or to inquire, indicated differences between the Security Council members. 7. See ICTY Statute, supra note 1, at 2. 8. See Zacklin, supra note 4, at 278, 281. 9. See ICTY Statute, supra note 1, at 1. 10. Catherine Cisse, The International Tribunals for the Former Yugoslavia and Rwanda: Some Elements of Comparison, 7 TRANSNATL L. & CONTEMP. PROS. 103, 106 (1997). 19991 444 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 23:440 grave breaches of the 1949 Geneva Conventions, violations of the laws and customs of war, crimes against humanity, and genocide. II. ICTY AS A LEGAL AND POLITICAL INSTITUTION The establishment of the ICTY represented a breakthrough in the development of international criminal law. For the first time in history the implementation of international criminal law was imposed on all sides to the conflict, avoiding the objection of victors justice. Importantly though, the implementation of international criminal law was not accepted through the free choice of all of the parties. While the Croatian Government and the Muslims and Croats in Bosnia and Herzegovina called for and supported the establishment of the Tribunal, the Federal Republic of Yugoslavia and Bosnian Serbs opposed it. The legal form of its establishment, through a Security Council resolution passed pursuant to Chapter VII of the Charter, simply meant that the Tribunal had been imposed on all sides and, therefore, that for the countries concerned cooperation with this Tribunal represented a binding obligation backed by the sanction of the Security Council. The establishment of the ICTY obviously implies a certain limitation upon sovereignty. No country easily accepts such conditions of its free will, except in very specific circumstances. 2 The Tribunals statute provides for its primacy over national jurisdiction, which allows for the takeover of an investigation whenever the Tribunals prosecutor finds it appropriate. The traditional ne bis in idem principle also does not apply: if the ICTY is unsatisfied with a national trial, then under certain conditions it can repeat the trial against the same perpetrator for the same offence. National authorities are bound to cooperate with the Tribunal and comply with its orders, including the execution of its arrest warrants. The use of Chapter VII for the establishment of the Tribunal and its imposition upon the states concerned did not go un- 11. In UN Doc. A/48/170-s/25801 (1993), there is a letter dated May 19, 1993 from the Minister of Foreign Affairs of Federal Republic of Yugoslavia to the U.N. Secretary General. 12. See Justice Richard Goldstone, Conference Luncheon Address, 7 TRANSNATL L. & CONTEMP. PROBS. 1, 4 (1997) THE ROLE OF ICTY opposed. During the debate on Security Council Resolution 808, which established the Tribunal, Brazil and China expressed concern that the interpretation of Security Council powers had been over-stretched. Mexico presented an official report, challenging the Security Councils authority to act as it did. Subsequently, in the much-publicized Tadic case-the first trial for war crimes after the Second World War-the Appeals Chamber examined the legal basis of the establishment of the Tribunal, upon a defense challenge. The Chamber found that the establishment of the ICTY fell within the powers of the Security Council under Article 41 of the Charter.1 The Tribunals legal features are rather obvious. It is ajudicial body that uses legal procedures to dispense justice according to previously defined rules. But to get the full picture of the Tribunal, its political features must be taken into account as well. As Ralph Zacklin puts it, [t]he Tribunals background is political; it has a history of politics driven by public opinion and leading to developments in law.1 4 The Tribunal was created due to the existence of a critical mass of political will, for identifiable political reasons and its performance produces political effects. Furthermore, in performing its legal tasks it relies upon the political support of the states concerned and the Security Council. Finally, it has to make political choices when selecting which cases to prosecute, which is done by taking into account political realities. An important impetus for the establishment of the ICTY was a feeling of a moral guilt among the international community resulting from the double failure to either prevent or stop the massacre. As Louis Henkin puts it: International law is generally the law of the lowest common denominator of agreement among states. The nomination of that dominator might be changed radically by some fortuitous event. Something can happen-as happened in Yugoslavia- which will raise the denominator so that states are subject to international law and institutions what they might have 13. In re Dugko Tadic (The Prosecutor v. Dugko Tadic): Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 1995 I.C.T.Y. No. IT-94-1-AR 72, reprinted in 35 I.L.M. 32, at 45. 14. See Zacklin, supra note 4, at 277. 15. See Cisse, supra note 10, at 105. 19991 446 FORDHAMINTERNATIONAL LAWJOURNAL [Vol. 23:440 refused earlier. 1 6 In fact the raising of the common denominator was been made possible through the establishment of the ICTY-but its jurisdiction was not agreed upon-which was imposed upon the states arising from the former Yugoslavia from the Security Council. It is not an easy task to balance the sovereignty of states with the efficiency of criminal law. The Tribunals former prosecutor Justice Louise Arbour admitted herself that the marriage between international law and criminal law is an unhappy one, in which consensus, as a key feature of international law, has to be supplemented in large part by force. This marriage, however, was needed for a number of reasons and international and criminal law were forced into it. The justification for the establishment of the Tribunal was convincing. Firstly, it was preventionthe establishment of the Tribunal should discourage possible perpetrators of future violations and change the climate of impunity. Secondly, individualization of guilt should distinguish war criminals from the rest of their communities, and therefore, by avoiding the perception of collective guilt, facilitate reconciliation. Finally, the establishment of a reliable historical record. This record was important for future generations, so as to avoid dangerous misinterpretations and myths.8 Indirect benefits of the Tribunal also included learning from the ICTYs experience, and treating it as an experiment helpful for the establishment of a permanent criminal court. The commencement of the ICTYs proceedings with the Tadic case-an awful sadist, but a politically marginal criminalhas been a source of frustration to many. It raised the question whether the ICTY was capable, and willing, to bring to justice not only the marginal perpetrators, but also, the politically and militarily most responsible, as was the case at Nuremberg. Many 16. See Louis Henkin, Conceptualizing Violence: Present and Future Developments in International Law, 60 ALB. L. REV. 578 (1997). 17. Louise Arbour, Progress and Challenges in International CiminalJustice, 21 FORDHAM INTL L.J. 531, 536 (1997). 18. The report of the first ICTY prosecutor, Judge Richard Goldstone, presents a warning in this respect: whenever I visit the former Yugoslavia, virtually every visit starts with a history lesson. If I am lucky, it may begin in Second World War; if I am unlucky, it may begin in the Fourteenth Century. See Goldstone, supra note 12, at 10. So-called history lessons are being repeated by opposing sides simply because there is no common, reliable history accepted by all. THE ROLE OF ICTY have perceived the political impact of the Tribunal as a doubleedged sword. Could the Tribunal turn into an impediment to a negotiated peace settlement in Southeast Europe? Contrary to the idealistic view that there is no peace without justice, there is also a pragmatic alternative. Firstly, it may not be possible to bring about a peace settlement in the former Yugoslavia if the Tribunal is going forward with active prosecutions of the state leaders of the belligerent parties. Secondly, even if the political leadership changes, it may be impossible for the new governments to hand over former leaders and remain in power. Namely, if the peace includes ICTYs ability to apprehend all perpetrators of crimes, then at least for some members of the leadership of the sides to the conflict, peace might not be such a desirable idea. The underlying dilemma is whether, at a certain point in time, it is better to prosecute or to rehabilitate.19 Argentina, for example, has chosen to increase stability by putting an end to investigations concerning its civil war. South Africa established a Truth and Reconciliation Commission, not a tribunal. The countries that emerged from the former Yugoslavia did not choose for themselves. The ICTY was chosen for them by the Security Council. According to a recent account, the Tribunal was widely perceived as an important public relations device and a policy tool by the U.S. government.20 Changes in the situation in southeast Europe brought about a policy change towards President Milosevic of Serbia. At one time, in Dayton 1995, his indictment was thought to be harmful for the prospect of peace talks, while later it seemingly became a useful tool to pressure him and maintain public support for the North Atlantic Treaty Organizations (NATO) bombing campaign against Serbia in spring 1999. The political dimension of the Tribunal is most visible in the Prosecutors dilemma on case selection. In regard to this issue, Justice Arbour, the former ICTY Prosecutor, has drawn at- 19. In this respect, the principles of justice and pragmatic political and security interests might sometimes be pulling in different directions. For example, during the process of peaceful reintegration of formally occupied Eastern Slavonia, Croatian authorities were under strong pressure not to initiate criminal proceedings against the local Serbian war criminals, exerted by the same international forces that brought the ICTY into being. 20. See Michael Scharf, Indicted for War Crimes, WASH. POST, Oct. 3, 1999. 1999] 448 FORDHAM INTERNATIONAL LAWJOURNAL [Vol. 23:440 tention to an important distinction between the ICTY and national courts: An immediate distinction can be seen between the work of these Tribunals and a domestic criminal justice system, because a domestic prosecutor is never really seriously called upon to be selective in the prosecution of serious crimes. Crimes are committed, they are reported, investigated, charges are brought, and the prosecutors prosecute all major crimes where the evidence permits. By contrast, in the work of the international Tribunals, the prosecutor has to be highly selective before committing resources to investigate or prosecute, and must work in a manner that can complement domestic legal systems. That is what we have had to do.2 1 Each trial necessarily contains different dimensions. It is the trial of a perpetrator of a crime, bringing justice to the victims and their families. Further, it contains a deterrent element, because it shows that certain practices are unacceptable and will be punished. This element is also precedent-setting and preventative. Finally, it brings to light the broader framework of the crime, the role and indirect responsibility of the superiors and political leadership. This dimension is very important, because of the present and future image of the countries and groups concerned. Crimes are committed by individual perpetrators and not by an ethnic group or a nation. Every crime, no matter the ethnicity of the perpetrator, must be examined in accordance with the available evidence and the applicable law. However, due to the magnitude of the crimes committed, time constraints, and the scarcity of other resources available to the Tribunal, it cannot prosecute all of the numerous perpetrators of war crimes. Rather, it has to carry out its work in a selective manner. However, if a selective approach is unavoidable, then the cases brought before the Tribunal must at least be representative. For political reasons, the cases must be representative in terms of nationality of the victim and the perpetrator. This certainly does not imply that the prosecutor should equally distribute indictments among the three national groups. To have 21. See Arbour, supra note 17, at 534. THE ROLE OF ICTY credibility, the prosecutors decisions on the selection of cases must be based on the available evidence, and not on some notion of moral equivalence among the parties.22 On the other hand, it is the office of the prosecutor that directs investigations and chooses priorities in collecting evidence. For both moral and political reasons, and for the historical record, these choices, which are the exercise of prosecutorial discretion, should reflect the extent and the level of involvement of the various sides in the war crimes committed. Even an unintended disregard for these elements in the exercise of prosecutorial discretion leads to a distorted picture and handicaps the Tribunal in achieving its ends. In order to analyze the present record of the Tribunal, we have used data on the indictments and detainees from the sixth annual report of the Tribunal submitted to the Security Council and the General Assembly pursuant to Article 34 of the statute of the Tribunal. 23 The data indicates that, unfortunately, to date, prosecutorial discretion has fallen short of its desired objectives. The numbers speak for themselves and there is no particular need to comment upon them. Some important shortcomings, however, are not visible from the numbers alone. It is important to note that, up to the present, nobody has been indicted for the well-documented crimes targeted specifically against Bosnian Croats. This deficiency seriously undermines the crucial objectives of the Tribunal: justice, a truthful account of what took place during the conflict, and ultimately, healing and reconciliation. Cooperation with the Tribunal, in the sense of extradition, represents a mixture between a curse and a blessing for the country or the national group concerned. The more one cooperates, the more his citizens or fellow nationals are being tried, the more negative media coverage one receives, and the more negative the perception that is spread. It is not news for the media that the SFRY does not cooperate with the Tribunal. What makes the news is the face of the individual Croat or Bosnian, 22. See Minna Schrag, The Yugoslav War Crimes Tribunal: An Interim Assessment, 7 TRANSNATL L. & CONTEMP. PROBS. 15, 20-21 (1997). 23. See U.N. GAOR, 54th sess., U.N. Doc. A/2905 (1999) cited in International Criminal Tribunal for the Former Yugoslavia, (visited Jan. 17, 2000) (on file with the Fordham International Law Journal). 1999] 450 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 23:440 Table One: Comparative Data on Indictments and Detainees of the International Criminal Tribunal for the Former Yugoslavia as of August 1, 1999 (1) Percentage of crimes committed, indicted persons and persons in custody, according to ethnicity Ethnic Muslims/ Ethnic Serbs Ethnic Croats Bosniaks Total Crimes Committed* 90%
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