The International Criminal Tribunal for the former Yugoslavia (ICTY) was created by the United Nations Security Council (UNSC) in response to the horrific violence of the Balkan Wars in the early 1990s. In 1993, as the conflict was still in its relatively early stages, the Tribunal was established in The Hague, a small Dutch city emerging as a center of international cooperation and justice. Since the ICTY began trying alleged war criminals, the majority of those convicted have been of Serbian descent, leading to claims that the ICTY is inherently biased against Serbs. These accusations, made by officials from both the Russian Federation and Serbia itself, have been aimed at discrediting what has been hailed by many as a groundbreaking institution in the realm of international law. The claims target both the individual judges and the institution as a whole, but have been dismissed by those who argue that the discrepancy in the ethnic balance of convictions is merely indicative of the fact that Serbs committed most of the war crimes. These dismissals have bred resentment and are demonstrative of the global community’s failure to view the Balkan conflict, and conflict overall, in a nuanced manner. This undermines the development of international criminal justice, as well as reconciliation efforts in the region, making it necessary to explore any perceived unfairness.
Through close examination of and research into the Balkan conflict and the ICTY, we have come to the conclusion that an anti-Serb bias is not inherent in the Tribunal. However, institutional weaknesses and a lack of accountability within and outside the Tribunal have allowed the biases of individual actors to influence the outcome of proceedings. Thus, by neglecting to address the need for impartiality and accountability within each step of the legal process, the architects of the ICTY and the international community alike failed to produce a universally impartial institution. The structural and procedural weaknesses of the Tribunal exacerbate issues inherent in international justice, challenge reconciliation efforts in the Western Balkans, and allow the predominant narrative of the Bosnian war to creep into court proceedings. Another major problem is that these structural/impartiality issues are not taken seriously, weakening what should be a strong foundation for international criminal justice.
From its creation, the ICTY as an institution was foundationally flawed. Basic requirements for an effective and impartial legal institution, such as training for legal staff, were ignored or incorporated long after the ICTY’s formation. A key component of any fair tribunal, a defense counsel, was also formed rather late. The Association for the Defense Counsel (ADC) was not established until well into the ICTY’s mandate, leaving the strength and relevance of the ADC in doubt from the beginning. The ADC was chronically underfunded, under-resourced, and understaffed, according to Dr. Michael Karnavas, a President Emeritus of the ADC. This was especially true when dealing with the Office for Legal Aid and Defense (OLAD), which performed poorly in its duty to provide logistical support to the ADC, including everything from interns to printers. Additionally, many judges were ill-prepared and had little experience in courtroom trials. This resulted in variations in courtroom procedure and an inconsistent appeals process. Adding to the inconsistency were the differing legal backgrounds of the judges. The Tribunal’s bench holds judges from both common law and civil law backgrounds. Civil law judges often act as “investigators,” bringing charges and establishing facts through witness examination, whereas common law judges act as referees, with lawyers handling the bulk of proceedings. These structural and procedural flaws made the ICTY as an institution susceptible to the creeping bias existing in the international community.
As evidence of this creeping bias, critics point to the disproportionality in convictions according to ethnic group. This is where the potential for an anti-Serb bias becomes evident, as the proportion of Serbs convicted is much higher than that of Croats or Bosnians. Serbia’s President, Tomislav Nikolic, claimed that Serbs were sentenced to 1,150 years collectively, while those who committed crimes against Serbs received only 55. This number is disputed, but it does demonstrate the sense of victimization felt by the Serbian people, which can pose challenges to the Tribunal’s goal of reconciliation. Of all the Serbs indicted, 57% were sentenced, compared to just 32% of Croats. This trend can also be seen in the disproportionate ethnic distribution of indictments. Of the total indictments issued by the Prosecutor, 64% were against Serbs.
In addition to this disproportionality, many also see a stark lack of indictments for Croatian and Bosniak military and political leaders who were seen to have played a significant role in the violence, such as Croatian president Franjo Tuđman and Chairman of the Presidency of Bosnia and Herzegovina Alija Izetbegovic. According to the ICTY itself in the Prosecutor v. Gotovina et al. case, Tuđman played an active role in a Croat Joint Criminal Enterprise (JCE), the body that oversaw much of the war effort and, arguably, many decisions that led to war crimes. In another case, Ante Gotovina, a Croatian general who oversaw Operation Storm, a campaign seen by some Serbs as genocidal, was initially found guilty after years of trial. But the ICTY appeals court later found him innocent, rebuking many of the conclusions made in his previous trial. Serbian President Tomislav Nikolic later said, “It is now quite clear the Tribunal has made a political decision and not a legal ruling.” Additionally, sentencing was also carried out inconsistently across ethnicities: Serbian convictions came with longer sentences on average than did those of Croatians or Bosnians.
The ICTY has also shown a tendency to be overly zealous in pursuing the convictions of Serbs. Frederik Harhoff, a Danish judge, was expelled from trial after the disclosure of a private email he had sent where he complained about the recent acquittals of top accused Croatian and Serbian leaders. Vojislav Šešelj, a politically powerful Serb accused of war crimes, had filed a motion seeking the removal of Harhoff following the release of this email, arguing that Harhoff’s apparent pro-conviction bias threatened the impartiality of Šešelj’s trial. The Tribunal’s investigation concluded that the emails revealed a bias in favor of convictions and Harhoff was removed from the case.
Some of the Tribunal’s structural and procedural practices were blamed for this apparent bias, as well as some cases of individual prejudice. Carla del Ponte, the Chief Prosecutor from 1999 to 2007 in the Office of the Prosecutor (OTP) was vilified by many opponents of the Tribunal. While it can be argued that the sealed indictments were necessary in many cases when there was an elevated risk of suspect flight, many saw the use of these sealed indictments as a method to cover up the targeting of specific individuals or ethnic groups. Margriet Prins, an official at the OTP itself, questioned the use of sealed indictments and professed that not many of the Bosnians indicted were convicted. During del Ponte’s tenure, the Tribunal failed to indict Franjo Tuđman, the Croatian president during the conflict. This is repeatedly cited as one of the Tribunal’s biggest failings, and supports the sentiment that Croatia’s position as a convenient ally to the United States-led NATO coalition against Serbia warrants partial forgiveness for its crimes. Croatia’s Operation Storm was part of a final push to end the war indirectly aided by NATO’s airstrikes in Bosnia, and the heavily Western-influenced Tribunal does not wish to tarnish the alliance’s image.
There was also little guidance from the international community on how to run an international tribunal, and the Tribunal lacked accountability due to this international disengagement. The United States and other Security Council members disregarded their responsibility to guide the Tribunal through its early years, abetting its irrelevance while the conflict was still raging.
Even worse, the United States has used its outsized influence on the Tribunal to play a hypocritical, and at times counterproductive, role. The United States escapes responsibility on its part, while sustaining a narrative that legitimizes the actions of America and NATO during the conflict. Harhoff, before being kicked off Šešelj’s case, complained that the Tribunal president, American judge Theodor Meron, helped establish a precedent within the Tribunal for protecting the interests of military leaders involved in international conflicts. One such case where this was apparent was the overturning of convictions for two top Croatian generals, General Gotovina and General Markac. Critics of the decision blamed Meron for being too lenient on military commanders that do not specifically give orders to commit war crimes.
Some argue that America’s defense of the Tribunal is due to the United States’ vested interest in maintaining the dominant narrative of the war in international, especially Western, circles. The Tribunal upheld the idea that Bosnians were the victims and Serbs were the criminals, while Croats were convenient allies in the war. To be clear, there were victims and criminals on all sides, and to many, the narrative that the ICTY seems to embody is not indicative of that fact. To many in the international community, disagreeing with the American perspective of the war is too much of a political liability to be worth the trouble. Demonstrating this, the representative we spoke to at the Slovenian Embassy in the Hague answered our questions by saying that they had to believe the Tribunal was doing its job impartially, brushing aside any of the criticisms we brought up. As a part of the Western Bloc, Slovenia would most likely feel significant pressure from the United States and the European Union if it gave a critical review of the Tribunal. The European Union made cooperation with the Tribunal a critical part of ascension talks with Croatia, demonstrating both a willingness to put political muscle behind the institution and a tendency to defend its actions.
The ICTY has furthered the development of an international criminal justice regime that was born in the aftermath of World War II. However, the structural and procedural issues of the Tribunal weaken and discredit these advancements and do not make it clear whether future conflicts should be handled by ad hoc tribunals, the International Criminal Court (ICC), or a combination thereof. These are questions the international community must explore. Is universal criminal justice realistic? Many would argue it is not, at least until major nations such as the United States, Russia, and China submit to the authority of war crimes institutions such as the ICC. But what does this mean for ad hoc justice as it has existed and may continue to exist?
Ad hoc tribunals, or those set up after a specific conflict, may be the best way to properly resolve conflicts, since the courts can focus on one particular region instead of the international community. Universal criminal justice will not become a reality until countries with oversized influence, such as the U.S., China, and Russia, buy into an impartial process of investigation, prosecution, and sentencing. Until such events happen, the ad hoc model is critical for establishing the legal precedent that will further develop international criminal justice as a truly global phenomenon.
The structure of the Tribunal contains many significant legal and procedural flaws that inhibit it from being an effective and just administrator of restorative justice. While this was not a clear case of victors’ justice, it certainly shares some undertones with the post-World War II tribunals. These flaws weaken the ICTY institutionally, and set the stage for greater disenchantment with the idea of international justice. In a more localized sense, they also make reconciliation in the troubled Western Balkans more challenging. A tribunal that is partial is seen as another part of the West’s war on Serbia. NATO involvement in Bosnia and the Kosovar independence movement have already strained relationships between Serbia and the West and given rise to nationalist politicians. The ICTY’s flaws only give further credence to those political voices that are detrimental to Serbia and the healing of the Western Balkans. The claims of widespread institutional bias are incorrect, but the fact that these questions were brushed aside so easily illustrates the need for a more easily challenged narrative, in Bosnia and the world.
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 Devčić, D, (Slovenian Embassy, the Hague), in discussion with the authors, May 18, 2015.