The ICTY Has Key Lessons for a Ukraine Tribunal

Merdijana Sadović

Senior Project Manager

Tuesday, 9 August, 2022

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With growing evidence of war crimes since the full-scale Russian invasion of Ukraine began some six months ago, pressure is increasing on local and international authorities to find the best model for prosecuting those responsible.  Various reports suggest that the invasion has already resulted in tens of thousands of deaths, millions of displaced civilians and enormous infrastructural damage.

So far, the office of the prosecutor general in Ukraine has registered more than 25,000 cases of alleged war crimes, and that number will continue to rise as the war continues.

The International Criminal Court (ICC) based in The Hague has already commenced investigations on the situation in Ukraine. It is also participating in a joint investigation team supported by Eurojust, the EU agency for criminal justice cooperation.

Russia cannot be tried for the crime of aggression at the ICC, as in 2016 Moscow withdrew its signature from the Rome Statute which created the Hague court.  Legal experts advocate the creation of a special tribunal to try the Russian political and military leadership and compliment ICC jurisdiction.

Ukraine’s national courts would have a very limited reach, as they could try only individuals arrested on its territory - namely, soldiers and low or mid-ranking officers, but not those most responsible for the crimes, including President Vladimir Putin and his close circle.

Under international law, foreign government officials are not subject to the jurisdiction of another country's local courts and national authorities, the main reason why having trials at an international court might be the only option. This would also prevent the politicisation of trials, inevitable when they take place in national courts.

If a special tribunal is eventually established to deal with the highest-ranking officials, it might resemble the International Criminal Tribunal for the former Yugoslavia (ICTY) which existed between 1993 and 2017. Its main aim was to call to account those suspected of bearing the greatest responsibility for atrocities committed during armed conflicts in this region in the 1990s.

The legacy of ICTY is enormous, although often disputed. The tribunal indicted 161 individuals, all of whom were brought to justice. Among them were former presidents, ministers, army chiefs, generals and influential politicians. Whole regimes and ideologies were put on trial along with these individuals; important historical facts have been established, such as that the crimes committed in Bosnia in 1995 amounted to genocide; former heroes were stripped of their glory as their true role in crimes were exposed.

And yet, many mistakes were made that diminished the role which the ICTY could have played in the former Yugoslavia, errors that future tribunals dealing with war crimes in Ukraine could maybe avoid. If nothing else, lessons learned from the ICTY could help the people of Ukraine – especially survivors of war crimes - have realistic expectations from such a court.

From the victims’ point of view, one of the most painful lessons learned is that justice is very, very slow. In the case of Bosnia, it came too late for many victims who had died of old age before the most notorious suspects were put on trial. Bosnian Serb political and military leaders Radovan Karadžić and Ratko Mladić were indicted for genocide and other war crimes in November 1995, but sentenced only 21 and 22 years later respectively - partly because they evaded arrest for years, and partly because their trials were too long.  

The tribunal’s work was marred by lengthy trials, often caused by the complexity of the judicial process, as well as the insistence of some suspects on defending themselves in court, despite having little or no legal background. One of the longest trials at the ICTY was that of Serbian politician Vojislav Seselj, which commenced in 2007 and was only completed 11 years later with the appeals chamber’s verdict. 

Some trials ended in the middle of proceedings because the defendants passed away, thus robbing the victims of justice. Former Serbian president Slobodan Milosevic conducted his own defence in the five-year trial which ended without a verdict in 2006 when he died of a heart attack in his prison cell.

Arresting indictees and bringing them to justice is another challenge which the court dealing with war crimes in Ukraine will certainly face. The ICTY did not have its own police, so had to rely on voluntary surrenders, the cooperation of local governments in apprehending suspects or the ability of international forces deployed in the former Yugoslavia to locate and arrest the fugitives.

And expectations from any court dealing with war crimes – be it the ICC, an ad-hoc tribunal or a hybrid court – must be realistic. It is very unlikely that the trials alone, despite a massive amount of evidence and facts presented and tested in court, will change the narratives of the opposing sides or contribute to the process of reconciliation.

Thanks to the ICTY, wars in the former Yugoslavia are some of the most documented conflicts in history. Over the 24 years of its existence, this court heard the testimonies of 4,650 witnesses, spent 10,800 days on trials, and produced 2.5 million pages of transcripts of proceedings. And yet, despite all this work, facts established by this tribunal are still disputed throughout the region as every former warring party continues to cling to its own version of the truth.

There will inevitably be disappointment, too. Some survivors of war crimes in the former Yugoslavia that IWPR talked to over the years said that, despite its flaws, the ICTY contributed to the pursuit of the truth and made their suffering at least a little bit easier. Others pointed out that it took them years to realise how much they would ever get in terms of justice and that they would never be able to say that they were satisfied.

Maybe one of the reasons people in the former Yugoslavia had unrealistic expectations of the ICTY was the lack of proper outreach for the first seven years of the tribunal's work. Its outreach service began work only in 2000, with the aim of communicating the findings and significance of the trials to people in the region. Many observers said this was too late.  Richard Goldstone, chief prosecutor at the tribunal in the early years, admitted that the ICTY’s work could have been publicised in the former Yugoslavia to a far greater extent.

But the greatest lesson from the Hague tribunal is that an international court will be vital to deal with war crimes in Ukraine, with the best prosecution, defence and judges that are available and with as little political influence as possible. The efficiency of the legal proceedings is paramount too, if the trials are to have any effect on the situation on the ground. Finally, proper outreach and regular communication with the public should not be an afterthought, but an important instrument in explaining the trials and a key tool in the fight against disinformation related to this court, which will inevitably ensue.

As for the legacy of that court, it will probably be as flawed as that of the ICTY; but it will be at least a starting point for establishing a proper historical record of the events that we are now witnessing in Ukraine.