BELGRADE, Serbia—The first war crimes tribunal to be established since the military court in Nuremberg after World War II will close its doors at the end of the year, and with it, a chapter of international criminal justice will end.
The International Criminal Tribunal for the Former Yugoslavia was established by the United Nations in May 1993 while the wars in Croatia and Bosnia and Herzegovina were raging. It would adjudicate the worst crimes seen in Europe in half a century. The jurisprudence set since then has paved the way for other countries to adjudicate similar crimes, and for the establishment in 2002 of the International Criminal Court, a permanent body that tries international crimes including war crimes and crimes against humanity.
The tribunal’s prosecutors have indicted 161 individuals. Its courtrooms in The Hague have seen more than 10,800 trial days, heard more than 4,650 witnesses and generated 2.5 million pages of transcripts. More importantly, the ICTY, as the tribunal is known, has made a significant contribution to modern international criminal and humanitarian law. And in an area of the world where the number of casualties from the war and history itself are deeply disputed, it has established a set of facts. As the world awaits Wednesday’s verdict in the case of Bosnian Serb general Ratko Mladic, many are sure the court will secure its 84th conviction.
Among them is Emir Suljagic, who survived the genocide of more than 7,000 men and boys at Srebrenica that Mladic is accused of orchestrating. Suljagic lost almost all of his male family members in the violence. He only survived because he was working as an interpreter for the United Nations at the time. Later, in his memoir, he recounted meeting Mladic, who asked him what he was doing in Srebrenica and let him go while thousands of other young Bosnian Muslim men were being rounded up.
In 2002, Suljagic went to The Hague as a journalist, just in time to witness the first ever indictment of a sitting head of state: former Serbian leader Slobodan Milosevic. Though he died in his cell before a final verdict could be issued, Milosevic’s trial paved the way for the conviction of Liberian warlord and former President Charles Taylor.
“The most important legacy is this huge body of evidence—documentary material that has been obtained under standards that are beyond reproach,” Suljagic says.
The ICTY also advanced the legal definition of genocide, and in 2001, it became the first international court to convict someone for rape as a crime against humanity. In addition, it has expanded the legal definition of slavery to include sexual slavery.
“It would be inconceivable now to set up an institution without a dedicated unit to investigate sexual and gender-based violence,” says Stephanie Barbour, who heads the sexual crimes investigation unit at the Commission for International Justice and Accountability, or CIJA, which is building cases for war crimes committed in Syria.
Barbour says the ICTY also set precedents in the field of non-witness evidence, namely documents and forensic material. “The strength of the ICTY judgments rests on exploiting and analyzing government and military documents in a way that not only protects victims who might be witnesses, but also exposes the chain of command,” she adds. “This is what is driving CIJA’s work on Syria today.”
But unlike the ICTY, CIJA is operating without an existing court, exposing a fundamental difference between today’s investigations into the Syrian regime of Bashar al-Assad and those in the former Yugoslavia: international political will.
“What the experience of the ICTY shows is that justice may take 10 or even 20 years to achieve, but eventually the past must be reckoned with.”
The ICTY, which was created by a resolution of the U.N. Security Council, came out of the immediate aftermath of the collapse of the Soviet Union, when the United States and Western Europe seemed ready to unite on global governance and accountability. But since then, the U.S., China and Russia have all refused to join the International Criminal Court, and today there is a widening divide over how to handle crimes committed in Syria, as well as in Iraq and Libya.
“Until a few years ago, the global legacy of the tribunal was the fact that it proved that international criminal justice is possible,” says Mirko Klarin, whose SENSE News Agency has covered every hearing of every ICTY trial since 1994. “Without this tribunal you would not have the Rwanda tribunal, the International Criminal Court, tribunals for Sierra Leone, Lebanon and Cambodia. It started a process which looked irreversible.”
But more recent verdicts, including the acquittals of Croatian Lt. Gen. Ante Gotovina and Serbian secret police chiefs Jovica Stanisic and Franko Simatovic, have walked back some of the tribunal’s judicial precedents. The latter found that Stanisic and Simatovic had indeed trained, financed and overseen paramilitary units that committed war crimes in Bosnia and Croatia, but that they could not be convicted because there was no evidence they specifically commanded the paramilitaries to commit war crimes.
This was a result, Klarin says, of caution on the part of judges in creating precedents that could one day lead to prosecutions of the world’s major powers, including the United States, for war crimes committed with the weapons and assistance they provide to others. In 2013, former Yugoslav army leader Momcilo Perisic was found to have provided assistance to the Army of the Republika Srpska, which was fighting in Bosnia, and to Serb forces in Croatia. But he was also acquitted of aiding and abetting war crimes.
The implication is that “Russia, or America, or whoever is providing arms and assistance in Syria, Iraq, Libya or elsewhere, is not responsible if those weapons are used to commit crimes,” says Klarin. “These legal precedents make international justice impotent in the most important problems we are facing today.”
These precedents may soon be tested before the ICC. Chief Prosecutor Fatou Bensouda on Monday asked a panel of judges to authorize an investigation into alleged crimes committed in Afghanistan, including rape and murder by U.S. forces and the CIA, as well as war crimes and crimes against humanity committed by the Taliban and Afghan security forces.
Although President Bill Clinton signed the Rome Statute that created the ICC, his successor George W. Bush rescinded the U.S. signature, saying he feared American citizens would be prosecuted. U.S. nationals can still be tried at the ICC for crimes committed in member countries.
Yet momentum is currently not in the court’s favor. Investigations implicating U.S. nationals could hinge on the cooperation of the Trump administration, which seems unlikely. In October, Burundi became the first country to withdraw from the ICC, saying the body focused too much on Africa. Several other African countries have threatened to follow. The continued freedom of Sudanese President Omar al-Bashir, who was indicted by the ICC in 2009, continues to be an embarrassment.
But nothing is as emblematic of the court’s impotence as Syria’s war, which drags on through its seventh year with almost half a million killed and staggering evidence of war crimes, from the use of chemical weapons to systematic torture and indiscriminate attacks on civilians. More than 13.5 million Syrians are in need of humanitarian assistance.
The U.N. General Assembly has set up an ad hoc mechanism to adjudicate crimes in Syria, but justice is decades away. Those committed to international criminal justice hope that justice delayed will not result in justice denied.
“What the experience of the ICTY shows is that justice may take 10 or even 20 years to achieve, but eventually the past must be reckoned with if the evidence has been preserved,” says Barbour. “That is our hope for Syria.”