Fri, Jan 07, 2005 - Page 9 News List

Justice seeks an exit strategy

Elaborate procedures mean the International Criminal Tribunal for former Yugoslavia is struggling to meet its mandate as suspects remain at large and precious time goes by

By Ruti Teitel

ILLUSTRATION YUSHA

I recently took part in a conference in Belgrade entitled "Dealing with the past in ex-Yugoslavia."

Although the rest of post-communist Europe confronted such questions a decade ago, the Balkan wars of the 1990s left both perpetrators and victims stuck in a time warp of justice delayed.

As the conference's participants made their way into Belgrade's Hyatt Hotel, an angry band of mostly older protesters bearing posters that read "Free Milosevic" greeted them. In a flurry of media and security, they confronted Carla Del Ponte, chief prosecutor at the International Criminal Tribunal for former Yugoslavia (ICTY) in The Hague. Del Ponte is pressing Serbia's government to cooperate in the still unresolved cases of Radovan Karadzic and Ratko Mladic, who ordered, implemented and oversaw the massacre of 7,000 Muslim men and boys at Srebrenica in 1995.

The protesters are not unrepresentative of Serb opinion. Almost a decade after the start of the ICTY's work, debate still rages over responsibility for war crimes, with little agreement on even the most basic facts of the conflicts in Bosnia, Croatia and Kosovo. Serbian Prime Minister (then president) Vojislav Kostunica's attempt in 2001 to set up a truth commission was doomed from the outset by allegations of bias, and was disbanded within a year.

The ICTY is also in trouble. To be sure, Milosevic is on trial in The Hague for war crimes, crimes against humanity and genocide. But comparisons to the post-World War II Nuremberg tribunal have worn thin: as the proceedings drag on, observers wonder why it has taken so long to establish criminal liability. After all, at Nuremberg, the top rung of the Third Reich was tried and convicted within months.

By contrast, Milosevic has taken advantage of the ICTY's procedures to delay his trial, while challenging its jurisdiction and legitimacy. This plays well back home, where indicted war criminals are still touted as war heroes. Indeed, Serbia's last presidential election became something of a referendum on Milosevic -- and hence on Serbia's relations with the West and the wider world. The pro-Milosevic candidate, Tomislav Nikolic, lost, but he received 46 percent of the vote.

Despite his campaign promises, Serbian President Boris Tadic has so far failed to cooperate with the ICTY by assisting in turning over Mladic (Karadzic is probably not in Serbia), who would surely testify against Milosevic. One understands his trepidation: the first post-Milosevic prime minister, Zoran Djindjic, cooperated with the tribunal, and paid for it with his life.

Such foot-dragging exposes the ICTY's fundamental weakness: unlike the Nuremberg tribunal, the international community convened it during, not after, a war. Without full control of either the evidence or the accused, the ICTY lacked from the outset the legitimacy and authority of "victors' justice."

This continues to impede the case against Milosevic, raising questions about whether there is sufficient proof directly linking him to the policy of genocidal ethnic cleansing, although this is likely to be less problematic since the charges against him turn not on "command responsibility," but instead on the ICTY's charter principles of individual responsibility. These implicitly authorize prosecution of those responsible for a "joint criminal enterprise," thus linking liability for criminal behavior such as deportations and removals to other foreseeable atrocities.

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