The International Criminal Tribunal for the former Yugoslavia (ICTY) is in danger of negating one of the basic reasons for its existence. Its recent decisions to acquit senior Serbian architects of ethnic cleansing in Bosnia-Herzegovina and Croatia imply that the Tribunal does not, after all, rise above the traditional impunity enjoyed by state actors to ensure that justice will be done.
The controversial judgments were rendered on February, 28, 2013, acquitting former chief of staff of the Yugoslav Army, Momcilo Perisic, and on May 30, 2013, acquitting Jovica Stanisic, former head of the Serbian State Security Service, and Franko Simatovic, the key operative of the service. In both cases, the judges agreed (generous of them as its proven historical fact) that Serbia (or, at the time, what remained of Yugoslavia) was deeply involved in the conflicts in Croatia and Bosnia. This is not disputed.
However, the judges did not find sufficient grounds that Serbian support to separatist Croatian and Bosnian Serb efforts was intended for specific criminal acts. It boggles the mind to wonder how else ethnic homogenization of deeply multi-ethnic areas, the key war aim, would have been achieved. Or why the salaries of Serbia-based paramilitaries who contributed almost nothing to the war effort except atrocities against civilians continued to be paid throughout the conflict.
But the Court claims doubts remain. One example: judges found that Stanisic’s remark “we’ll exterminate them completely” was, as Eric Gordy noted in a NYT op-ed, “too vague to be construed as support for the allegation that Stanisic shared the intent to further the alleged common criminal purpose.” The decisions hinge on interpretation of “specific direction,” an evolving legal standard for when outside authorities might be held liable for actions committed by armed forces they support. This clearly is an issue that is relevant to other circumstances. Gordy continues, arguing that:
“The rejected bases of responsibility in the three major acquittals in the last year included targeting civilian objects and arming and financing forces that committed crimes. It does not take a large stretch to see the implications that precedents in cases like this would have for the activity of powerful states in countries like Syria and Afghanistan.”
Gordy’s point is underscored by a stunning revelation in an apparently leaked letter from Judge Frederik Harhoff (Denmark) to some of his colleagues:
I am sitting here with a very uncomfortable feeling that the court has changed the direction of pressure from “the military establishments” in certain dominant countries.
Even without the letter, this turn of events not only places the ICTY’s role in question, it begins to unravel other areas of international justice. For instance: how does the new interpretation impact the concept of “joint criminal enterprise” such as serves the foundation for the ICC case against Sudan’s Omer al-Bashir?
Reflecting on the Court’s decision, it is possible to arrive at one of two conclusions. The first, as thoughtfully put forward by Bogdan Ivanisevic, argues that expectations of the Court exceeded its legal capacity. He writes: “critics conflate criminal responsibility of specific individuals, on the one hand, and the political or moral responsibility of the state, on the other. Hence the frustration.” Interestingly, the International Court of Justice decision in Bosnia v. Serbia/Serbia & Montenegro (aptly shortened to S&M)/the Federal Republic of Yugoslavia, decided it would adjudicate on state responsibility for genocide only based on evidence from the ICTY regarding individual criminal responsibility. On this, see Susana Sa’Couto’s article on the decision, especially the sections titled: “The Court’s Decision Not to Seek the Best Possible Evidence” and “The Court’s Reliance on the Jurisprudence of the ICTY.” This decision implies that there are no legal fora to address state responsibility for genocide and crimes against humanity; which, therefore, must be understood as exclusively within the realm of sovereign states.
The second conclusion, not far from the first, is that international legal institutions operate within deeply politicized contexts and are therefore obliged to make decisions that take power politics into account. Judge Harhoff’s letter certainly supports this interpretation.
So, either legal tools are profoundly limited because they operate within a political universe in which their impact is slight; or, legal tools are themselves highly politicized.
The ICTY announced on June 12, 2013, that it aims to complete all trials in the next three years, with a decision on the Mladic case expected in 2016. These recent decisions are not, by far, the Court’s first controversy, but coming as the Court winds down operations it may prove a lasting impression for many of its otherwise supporters. It raises significant questions about the politics of international justice and, at a minimum, exposes the limitations of a legal approach to armed conflict and its aftermath.
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