The Deep Fractures In International Justice


Last week marked 20 years since the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the body tasked with “trying those most responsible” for the crimes committed during the wars in the Balkans during the 1990s. The anniversary alone would be a moment to reflect on the work of the ICTY, and its successes and arguable failures. However, two important verdicts delivered last week each raise questions about the tribunal and the state of international criminal law.

As the ICTY resolves its final cases, what legacy will it leave? At the celebrations to mark the twentieth anniversary last week, in the presence of the new Dutch King, Registrar John Hocking characterised the tribunal’s legacy in these terms:

“No matter how high-ranking or influential perpetrators may be, they will eventually be brought to justice and the proceedings against them will be fair.”

Hocking’s description has been put to the test by two recent decisions of the court itself.

On Wednesday, the verdict in the case of Prlić et al convicted six leaders of crimes in the area of Herceg-Bosna. The accused were charged under a complex and large indictment, and the case is the longest-running completed case at the ICTY, with trial having commenced in 2006. The Trial Chamber found that the men had participated in a “joint criminal enterprise” with the objective of removing the Muslim population from territory over which the Bosnian Croat leadership wanted to establish control. This criminal plan was found to have been implemented through a system that included murder and ill-treatment. The tribunal delivered sentences of between 10 and 25 years.

The judgment is the ICTY’s longest, totaling over 2600 pages in six volumes. However, problematically, it was delivered solely in French – a language not spoken by many of the lawyers, or the accused. An official translation may be years away, which raises significant questions about the rights of the accused and the practicalities for the lawyers should they wish to prepare an appeal. In addition, the sentences – arguably low, compared with the number of counts convicted of – suggests a lack of a coherent system of sentencing at the international level. The case will now go to appeal, which will take several more years.

The next day, the ICTY delivered its verdict in the case of Stanisić and Simatović. The accused were charged with murder, persecutions, and deportation and inhumane acts, in relation to events in Croatia and Bosnia. They were alleged to have facilitated Serb paramilitary groups, including “Arkan’s Tigers”. On Thursday, the Trial Chamber acquitted both accused of all charges.

As I have written previously, acquittals at the international law should not be feared. Rather, they demonstrate that there is a standard which must be met in order to assign guilt. Acquittals, where they are the result of a fair and proper trial, are an important part of showing that the system of international criminal law is working as it should.

So here, the acquittal itself is not necessarily concerning, but the case does raise significant questions about the operation of international criminal law. These are, first, the question of judicial cohesion; and second, the role of the ICTY in creating an accurate historic record of events in the former Yugoslavia.

The Stanisić and Simatović verdict was decided by a majority of judges, with Judge Michele Picard offering a blistering dissent. She takes a very different approach to the evidence from that of the majority, and argues that the majority examined the evidence “in an isolated fashion”.

She states that “if we cannot find that the accused aided and abetted those crimes … we have come to a dark place in international law indeed.” These are significant words coming from a judge. It must give us pause  to see one of the people charged with upholding the system of international criminal law explicitly articulating reservations about the operation of that system.

This dissent comes rapidly on the heels of several other strong dissents in international criminal law in the last few months. The total of these divided opinions is striking, and concerning for observers. Dissents, like acquittals, are part of the judicial process, and are not necessarily problematic – but it is noteworthy for the system to be so judicially fractured as it appears now.

One of the perceived difficulties with this week’s verdicts is that, when taken together, the ICTY has made no findings of Serbian state involvement in the fragmentation of Bosnia, but has found Croatia to have had direct involvement in the breakup of Bosnia. Some see this as a misrepresentation of responsibility for the wars. The Stanisić and Simatović case was the last case to examine the explicit link between Serbia and the Bosnian Serbs, and the acquittal has meant that there has not been a tribunal finding of responsibility for any links between these entities. When matched with the Prlić case, which explicitly found a link between Croatia and the Bosnian Croats, some are expressing concern that these judgments skew the historic record.

However, I would caution against linking the two judgments in this way. The verdicts have been offered by separate Trial Chambers, and have been reached on the basis of the evidence presented during the trials. Any attempt to link these two distinct proceedings would politicise the work of the tribunal.

Trial Chambers must not consider the greater historic record when they are determining the law; if they do, they may be improperly influenced and will not uphold their duties correctly. All Trial Chambers can do is examine the evidence before them and apply the law properly. Trying to extrapolate an accurate historic record from judicial proceedings is unhelpful.

The ICTY’s twentieth anniversary is a moment to recognise how young the system of international criminal law is, and how much development is yet to be undertaken. Recent days at the ICTY suggest that the system is under strain. This week alone has raised issues around a lack of consistency in sentencing; the rights of the accused when faced with a lengthy judgment delivered in a language they do not understand; strikingly different judicial approaches to evidence; judicial fragmentation and concern at the very system of international criminal law; public anger and misunderstanding; and a high expectation on the system to not only offer justice but also history.

These factors are all taking their toll on the legal system. These are delicate days in The Hague, and the ICTY and international criminal law have challenges ahead. Ultimately it can only be hoped that these problems will be addressed by other Courts, and that the system strengthens over the next 20 years.

Disclosure: The author was an unpaid intern for the defence of Bruno Stojić, accused in the Prlić case, for three months in 2009. She no longer has any professional affiliation with this defence team.

Dr. Sophie Rigney is a Senior Research Fellow at Melbourne Law School, and is co-appointed as a Fellow at the University of London. She was previously a defence lawyer at the International Criminal Tribunal for the Former Yugoslavia in The Hague. Dr Rigney researches international law, Indigenous international law, and post-conflict justice.