The successes and limitations of the International War Crimes Tribunal

Hajira Qureshi

Jumada' al-Akhirah 16, 1428 2007-07-01

Special Reports

by Hajira Qureshi (Special Reports, Crescent International Vol. 36, No. 5, Jumada' al-Akhirah, 1428)

The International Criminal Tribunal for the former Yugoslavia (ICTY) was in the headlines again last month. On June 12, Milan Martic, the former leader of the rebel Serb authorities in Croatia, was found guilty of most of the charges in the indictment against him. He was tried, found guilty and sentenced to 35 years' imprisonment by the ICTY.

During the 1991-5 war in Croatia, Martic was the president of the Serbian Autonomous District (SAO) of Krajina. He has been found guilty of nine crimes against humanity and of seven war crimes, including murder, torture, persecution, deportation and attacks on the non-Serb population of Croatia in the 1990s. The judges summed up the proceedings by saying that Martic had taken part in joint criminal activity with a view to creating a new Serb-dominated state by "the forcible removal of a majority of the Croat, Muslim and other non-Serb population from approximately one-third of the territory of Croatia and large parts of Bosnia [...] It is clear that the SAO Krajina leadership, including Milan Martic, endorsed Slobodan Milosevic's vision to create a Serb-dominated state". Milosevic was indicted by the ICTY in 2005. The judges concluded that Martic "abused his positions and promoted an atmosphere of mistrust and fear".

Martic was also found guilty of ordering rocket-attacks on downtown Zagreb, capital of Croatia, on May 2 and 3, 1995, in which seven people died and more than 200 were injured, as reported by the Institute for War & Peace Reporting (IWPR). In a radio interview Martic gave on May 5 1995, Martic stated, "That order was given by me personally, as retaliation to [Croatian president] Franjo Tudman and his staff for the order he had given to commit aggression against Western Slavonija". The Court also established that most of the crimes perpetrated by Martic were perpetrated against the elderly, civilians and people in detainees.

There were surprisingly few reactions in Serbia to Martic's sentence; only members of the Serbian Radical Party voiced their opinion to the government that Martic's sentence was shameful because he had only been defending the rights of Serbs. Of late, the Serbian government has been helping the ICTY apprehend Serbian fugitives. On May 31 Zdravko Tolimir, accused of involvement in the Srebenica massacre, was captured; Vlastmir Djordjevic, accused of war crimes against Kosovar Albanians, was apprehended two weeks later. These developments are most probably explained by the hopes Serbia entertains of joining the EU.

In July 2006 began the ongoing trials of seven high-ranking Bosnian Serb officials: Vujadin Popovic, Ljubisa Beara, Drago Bikolic, Ljubomir Borovcanin, Radivoje Miletic, Milan Gvero and Vink Pandurevic. These seven are accused of being the most responsible for the massacre of Srebenica (July 1995), in which 8,000 Muslim men and boys were summarily executed. Because he was still at large, Zdravko Tolimir's indictment was separated in August 2006, but since his arrest the prosecutors have moved to rejoin the cases. They all face charges for two separate but connected plans: to "force the Muslim population from the Srebenica and Zepa enclaves" and to "murder all the able-bodied men captured from the Srebenica enclave".

Vlastimir Djordjevic, 58, a former Serbian security chief, was arrested in Budva, a coastal town of Montenegro, on June 17 and has been transferred to the UN war crimes tribunal in The Hague. He was one of five remaining fugitives from the tribunal, and had been on the run for more than three years. He is also accused of crimes against humanity and war crimes committed against Kosovar Albanians in 1999. Specifically, he has been accused of being a member of the Joint Command of Yugoslav and Serbian armed forces, which deported around 800,000 Albanians from Kosova, killed over 700 named Kosovar Albanians, raped numerous women, and looted and destroyed property belonging to civilians.

The International Criminal Tribunal for the former Yugoslavia is a temporary body of the United Nations; it was established in 1993 by resolution 827 of the UN Security Council. Its aim is to investigate serious crimes committed during the wars in the former Yugoslavia and to try their alleged perpetrators. All UN members are obliged to co-operate fully with it. The tribunal is an ad hoc court and is located in The Hague, Netherlands. The ICTY has jurisdiction over four kinds of crime committed in the territory of the former Yugoslavia since 1991: grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity.

According to the BBC, to date the tribunal has issued verdicts on 56 detainees, five have been acquitted, twenty-one indictments have been withdrawn, fifteen suspects have died and fourteen have served their sentences. The longest sentence passed so far is 40 years' imprisonment for one Goran Jelisic, a Bosnian Serb prison-camp guard. Currently, the tribunal detention unit holds 59 suspects; ten are still at large and nine are on trial. One verdict made history by establishing that the systematic use of rape can be prosecuted as a war crime. The court cannot pass death sentences and the longest sentence it may pass is life imprisonment.

The ICTY has some limitations. Although it has large numbers of investigators, it does not have its own police and instead relies on the former Yugoslav republics or the international peace forces, S-For and K-For in Bosnia and Kosova, to make arrests. It can only try individuals, not governments or organisations. Although there has been an attempt to bring to trial those ultimately responsible for the crimes, the policy of only trying individuals cannot tackle the root of the problem because it does not target the organisations, governments and attitudes that make people like Milosevic et. al. who and what they are.

Inspired by the ICTY, in 2002 the International Criminal Court (ICC) was established as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. Currently it cannot exercise jurisdiction over the crime of aggression as there is no comprehensive definition of what a "crime of aggression" comprises. The ICC was inspired by the ICTY and the International Criminal Tribunal for Rwanda (ICTR) but differs from them in important ways.

The ICTY and ICTR will cease to function, but the ICC is permanent; the Tribunal must complete all trials by 2008 and all appeals by 2010. With these deadlines in mind, many lesser officials with "relatively low" levels of responsibility for crimes committed are transferred to courts in the territory of the former Yugoslavia to be tried there. The ICTY and ICTR can only prosecute crimes committed in certain regions during a particular period of time. The ICC can only exercise jurisdiction in cases where the defendant is a national of a state, the alleged crime took place on the territory of a state, or a situation is referred to the ICC by the UN Security Council, and can only prosecute crimes committed after its inception – that is after July 1, 2002.

To date the situations under investigation by the ICC are the conflict zones in the Democratic Republic of Congo, Darfur, Northern Uganda and the Central African Republic. There has been criticism that the ICC has so far only concentrated on Africa and not looked for cases elsewhere. It has also been criticised for being too distant from the conflict-zones to be of relevance or benefit to the victims.

It is worth stating that to date (i.e. at the end of June 2007), a number of states, including the US, Russia, China and India, have not ratified the Rome Statute and so are not under the jurisdiction of the ICC. President George Bush's administration has consistently opposed the ICC because it might undermine US sovereignty and national interests abroad. The principal concern is that the ICC could be used to prosecute members of the US armed forces. IWPR has reported that the US threatened to veto UN peacekeeping operations if its troops were not exempted from prosecution by the ICC. In July 2002 the UN Security Council, of which the US is a permanent member, voted to grant US troops a 12-month annually-renewable exemption from prosecution. This special status was revoked in June 2004 because of the investigation of the abuse of Iraqi prisoners by US troops and questioning the legality of the decision to go to war in the first place. However, true to its hypocritical nature, the US has agreed the Court has jurisdiction to investigate the genocide in Darfur, Sudan. The US has also undermined the ICC by pressuring member-states to sign agreements to give US personnel immunity from prosecution. In May 2005, Angola became the hundredth state to sign such an agreement; if it did not, the US could deny it aid. In addition, as a member of the UN Security Council, the US can veto any case being referred to the ICC by the UN.

The US position on the International Court of Justice (ICJ), also known as the World Court, is also half-hearted. The ICJ (not to be confused with the ICC) is the primary judicial organ of the UN. It was established by the UN charter in 1945. The number of decisions made by the ICJ is relatively small. However, since the 1980s there has been an increased willingness to use the Court, especially among developing countries. However, the US withdrew from compulsory jurisdiction in 1986. It accepts the court's jurisdiction only on a case-to-case basis.

It shows the strong hegemonic hold the US has that in the last 25 years it has strategically positioned itself so that it is not accountable to any of the international criminal courts for the crimes it commits. There is no an international court anywhere that can hold the US or its instruments to account for the crimes they commit; the US has seen to that. Thus is the hegemonic nature of the US is demonstrated again. The victims of the weak can have the scraps of justice the strong are willing to allow them; the victims of the strong will have to wait for the justice of Allah (swt) in the Hereafter.