By Laura Davis
Slobodan Milosevic’s transfer from his Belgrade prison to the International Criminal Tribunal for the former Yugoslavia on 28 June 2001 was headline news: he would be the first head of state to stand trial, on the basis of individual criminal responsibility and superior criminal responsibility for crimes against humanity and violations of the laws or customs of war in virtue of his position as President of Serbia, member of the Supreme Defence Council and Supreme Commander of the VJ (Yugoslav Army) (1). The indictment currently covers only acts allegedly committed in Kosovo, although this is likely to be extended to Croatia and Bosnia as well.
Political destabilisation in Serbia and the Federal Republic of Yugoslavia (FRY)
The transfer of Milosevic to ICFY has led to considerable political destabilisation in both Serbia and FRY. Since the change of government following the federal elections in September 2000, there had been little substantive advance towards co-operating with ICTY despite internal pressures from some members of the ruling Democratic Opposition of Serbia (DOS) coalition and heavy external pressure from the international community. The transfer was carried out ultimately by the Serbian Republic, in consultation with federal President Kostunica and members of DOS. Federal organs had been unable to act before the deadline of 29 June -when an international donor’s conference was scheduled to pledge aid to FRY, and vital for the country’s economy and political rehabilitation- blocked essentially by the Montenegrin Socialist People’s Party (SNP). Yet the issue was also divisive for DOS which had so far held together, at least in public: pre-existing divisions in the coalition coalesced around the federal President Kostunica and the Serbian Republic Premier Djindjic. The transfer thus had ramifications not only for the cohesion of the DOS coalition, but also for the relationships between Serbia, Montenegro and the federation. Whether either the coalition or the federation can hold together much longer is an open question (2).
No peace without justice?
“No peace without justice” is an expression that is commonly heard, and is seemingly uncontroversial. Yet it bears closer examination -not least of all, establishing definitions for both peace and justice.
I would argue that peace is the situation in which war is impossible, yet this definition is probably too idealistic to have any practical use when discussing post-conflict situations. Whilst one can argue that for example, France and Germany are at peace in the sense that their economies, political systems and cultural relations are so closely knitted especially in the context of the European Union that war, if not impossible is highly improbable, we cannot imagine that the peoples of the former Yugoslavia can reach such a level of coexistence for at least another generation. In which case, a tempered definition, the situation in which violent conflict between self-defined groups is unlikely may serve a better purpose: coexistence rather than peace.
Which leads to the definition of justice, to which, common riposte is “Whose justice?”. Is international law, as embodied by ICTY, universal?
Or is it an essentially Western or Security Council view of justice, a foreign view of justice over which the peoples from all sides of a conflict feel little ownership? A charge constantly levelled at ICTY throughout the former Yugoslavia is that ICTY is a US court, a political rather than an impartial, judicial court. The legitimacy of the court has been questioned since its inception: the Dutch defence counsel Michail Wladimiroff (since appointed one of three amici curiae in the Milosevic case) for Dusko Tadic at the court’s first trial unsuccessfully challenged the court’s legitimacy. The charge that the court is a US court is unfounded; it was established by the Security Council, and its judges and jurors are highly respected and come from all over the world. Further, ICTY’s relationships with NATO and Western diplomats have at times been strained when the latter felt that indictments and/or arrests would hamper peace negotiations. Two issues tend to promote the view that the court is biased, however: the lack, as yet, of any indictments against members of the Kosova Liberation Army (KLA) and the lack of investigation into whether NATO committed war crimes during its bombing campaign. There are also questions regarding the timing of indictments, such as the issuing of that against Milosevic et al. at the time of the NATO campaign against FRY. ICTY’s relationship with the United Nations in its current form, lays it open to the charge, fair or not, that it is dependent on the Security Council members.
The ICTY is not perfect – it is not the solution to the region’s problems. But it is an important part in rebuilding societies. In post conflict situations, the judicial investigation of alleged crimes, establishing facts with the burden of proof and thus taking the story of a conflict out of the arena of anecdote and propaganda, into the sphere of established fact are vital for the establishment of a common history of a conflict, a precondition for reconciliation. Importantly, the ICTY also establishes individual guilt – thus helping the communities, both those perceived as the victim and the perpetrator to move away from collective guilt through the identification and punishment of those guilty for specific crimes. Further, its justice is not retribution; if justice is to be constructive to rebuilding societies, it cannot be based on vengeance.
The geographical and psychological distance between the Hague and the former Yugoslavia is both an advantage and a problem: the trials are conducted according to international procedure by external parties, but at the same time, the crimes are taken away from the context in which they were committed, thus reducing the healing effect of the trial itself. Ideally, ICTY would hold the trials in the capitals of each of the combatants, but this is not feasible from a security point of view, nor are any of the judicial systems in the states and entities concerned in a fit state to conduct such trials themselves.
The ICTY trials will contribute, gradually and slowly, to the erosion of “us” and “them”, of the perception of one ethnic group being guilty or innocent, and rather focus on the guilt and innocence of the individuals concerned. Until the dividing lines and perceptions of wrong-doing by one ethnicity to another can be overcome, coexistence is impossible. This is a long, painful process, which ICTY can help.
There has come to be an understanding that some crimes are simply too serious, or involve too many actors for a single state to handle alone. So far, the Security Council of the United Nations has established two ad hoc International Criminal Tribunals – one for former Yugoslavia, the other for Rwanda (ICTR). Both should be welcomed: both attempt to introduce the concept of justice, impartiality from the combatants and with that, aid the reconciliation of the combatant societies with each other and with their own pasts through establishing what happened to whom when, and which individuals were responsible.
The problem of the lack of feeling of “ownership” by people in the former Yugoslavia of ICTY is much more serious in the case of ICTR. The ICTR struggles not only with an immense caseload that it cannot manage, but also with the perception that it is imposing “Western justice”. As a result, a traditional court system Agacaca has been established, with judges elected and acting at communal level, to supplement ICTR.
In other post-conflict societies, different mechanisms are used to dispense justice. The Truth and Reconciliation Commission in South Africa may be criticised as it does not appear to punish the guilty in the sense that is commonly understood. Yet, the Commission was probably the only alternative to a protracted civil war, and whilst the required admission of guilt is far from the prison sentences handed down by other bodies, it can be seen as a type of punishment in itself. And certainly the South African case is so unusual precisely because the whole ideological basis and functioning of the state was on trial, as much as individuals.
Other initiatives include the pioneering step the Belgian courts took in 1993 by establishing universal jurisdiction over serious contravention of international humanitarian law (3) regardless of whether the alleged crimes were committed on Belgian territory or not. The law has led to the prosecution of numerous Rwandese accused of genocide in Rwanda. It is also worth mentioning the bungled attempt to try Augusto Pinochet in British and other European courts for crimes against Chileans whilst he was head of state, as its very failure highlighted serious weaknesses in the concept of international justice in its present form.
The picture we have is this: two ad hoc UN tribunals concerned with crimes committed on two specific territories; numerous processes in other post-conflict societies adapted to the specific conditions of the conflict in question; and various attempts by national courts to act internationally. Then there is also the question of “whose justice?” and ownership over and belief in the process by the communities concerned.
The absence of a permanent system is clear – a judicial process through which individuals cam be tried for crimes against humanity, war crime and genocide, regardless of the territory on which the crimes were committed. Justice for crimes such as these can no longer be bound by national boundaries and national legal systems Yet there is a dilemma: can an international court bound by international law be truly international, or is it merely the imposition of Western values on the rest of the world? And can an international court ever address the particular characteristics of crimes in different societies?
I believe that the answer, more than ever, lies in the International Criminal Court (ICC). Independent of the UN Security Council, it will have the opportunity, one hopes, of cultivating a real sense of ownership amongst its member states, small or large, rich or poor. A permanent body, it would not require the decision of the Security Council to be established in relation a particular conflict, neither would its mandate be restricted to particular conflicts or territories. At the same time, the ICC should have the flexibility to act as locally as possible – to relate the trials to the societies in which the crimes were committed, and to seek supplementary measures specific to the conflict if necessary, as in the case of Rwanda and South Africa, and attempt to reduce as much as possible political destabilisation such as in Serbia and FRY.
It is possible that the ICC could also have a deterrent value; for example, as the reputation of ICTY grows, helped at least in part by the transfer of Milosevic, it may act as a deterrent in Macedonia, should the conflict escalate there once Operation Essential Harvest is over (4).
Milosevic’s trial has set a healthy precedent: even a head of state is personally responsible for crimes against humanity committed while he was in office. If the 11 September 2001 marks the end of the twentieth century and the beginning of the twenty-first, as 28 June 1914 marked the beginning of the twentieth, then the world needs to consider how it will govern itself. Wars are no longer between states; national boundaries no longer define nor contain warfare – therefore the justice system must move beyond national boundaries to meet the challenge. But for that justice system to be effective, it must be exactly that: independent and truly global. If we can learn one thing from ICTY, the dispensation of justice, the global rule of law must become reality.
(1) http://www.un.org/icty/Milosevic/mil-fact.htm. Milan Milutinovic. Nikola Sainovic, Dragoljub Ojdanic and Vlajko Stojiljkovic were indicted under the same order and remain at large.
(2) For more detailed analysis see the international Crisis Groups Balkan Reports, particularly Milosevic in the Hague: What it Means for Yugoslavia and the Region, 6 July 2001
(3) Der Standaard 14/04/2001
(4) See “The Macedonia Tribunal” by Peter Bouckaert, Institute for War and Peace Reporting Tribunal Report No 234 http://www.iwpr.net
Laura Davis is works in the NGO sector in the field of conflict prevention. She is a former Secretary General of JEF. She can be contacted at firstname.lastname@example.org. The views expressed in this article are those of the author writing in her personal capacity and not necessarily those of Federal Union. First edition September 2001.