Conference Examines Tribunal's Legacy

Rachel Irwin

Senior Reporter

Friday, 18 November, 2011

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Experts and scholars from around the world convened in The Hague this week to take part in a conference that examined the tribunal’s global legacy.

This was the second conference to explore this topic in recent years. The first one, held in February 2010, focused specifically on the tribunal’s legacy in Balkans. (For more, see Fraught Tribunal Legacy Gathering.)

This week, the focus was on the tribunal’s legal impact. Founded in 1993, the International Criminal Tribunal for the Former Yugoslavia, ICTY, was the first court of its kind to open since the Nuremberg and Tokyo tribunals at the end of the Second World War.

It has established numerous landmark precedents, and was the first international criminal tribunal to enter convictions for rape as a form of torture and for sexual enslavement as a crime against humanity.

“Where the Nuremberg and Tokyo tribunals treated rape and sexual exploitation as an inevitable and somewhat negligible side effect of war, the ICTY and ICTR [International Criminal Tribunal for Rwanda] recognised the centrality of these crimes, and helped to shed light on womens’ experience of war,” Navi Pillay, the United Nations High Commissioner for Human Rights, who moderated a panel at the conference.

Pillay praised the tribunal’s “remarkable achievement” of arresting every single fugitive it sought.

“Not even [Ratko] Mladic and [Radovan] Karadzic have escaped the long arm of international justice,” she said.

Karadzic, the wartime Bosnian Serb president, was arrested in 2008 after 13 years on the run. Mladic commanded the wartime Bosnian Serb army and was arrested in May 2011, after 16 years as a fugitive.

The final fugitive wanted by the ICTY, Croatian Serb political leader Goran Hadzic, was arrested in July.

“I don’t remember ever putting together a list of 161 cases, and having all 161 cases brought to justice,” said Stephen Rapp, a former American prosecutor and the current United States ambassador-at-large for war crimes issues. “There were always those who managed to flee and escape.

“For this institution to do it is remarkable, and to do it on an international level, without itself [having] the powers of arrest [and] requiring state cooperation, is a remarkable record and sends an enormous signal around the world,” he continued.

It was not all praise, however.

Pillay, who is also a former judge at the Rwanda tribunal, acknowledged that the ICTY initially failed to establish effective outreach programmes in the Balkan region.

“From my own experience, I can say that we waited too long to systematically reach out and explain our work while local perceptions on the ground were gradually crystallising into firm convictions,” she said.

Furthermore, she noted the frustration of some victims and survivors who have long felt that the sentences meted out are too short, and often come with early release.

“The ICTY has triggered a lot of negative reaction among victimised communities who felt that it released [convicted persons] like Biljana Plavsic too early, especially since the ICTR has refused to agree to the early release of any of its convicts,” Pillay said.

Plavsic, a member of the wartime Bosnian Serb presidency, and pleaded guilty to persecutions in 2002. She was sentenced to 11 years in prison, but was granted early release by the tribunal’s president in October 2009.

Other experts pointed out that the ICTY has not had the kind of “transformative impact” that many hoped for upon its inception.

Still, Diane Orentlicher, who acts as deputy head of the US State Department’s Office of War Crimes Issues, said that the tribunal’s lack of popularity has had some unexpected side-effects.

“Nationalists who opposed the ICTY thought it would be better to try war crimes in local courts than in the much reviled and distrusted Hague,” said Orentlicher, who conducted a study on the tribunal’s impact in the region. “Ironically, anti-Hague sentiment seems to have helped to foster a more receptive attitude towards war crimes prosecutions in Serbia than would have otherwise been the case.”

In Bosnia, Orentlicher said, victims still have many complaints, especially concerning the length of sentences and early release.

“But what virtually everyone… that I interviewed in Bosnia said, either spontaneously or when I pressed them on how they felt about the ICTY in retrospect given these concerns… [was] that the most important thing the ICTY did was it provided justice, and this is something they desperately needed,” she said.

Several people in the audience pointed out that there were no voices from the region on any of the expert panels at the conference. The president of the tribunal, Judge Patrick Robinson, noted that the previous legacy conference in 2010 was focused entirely on issues within the region.

Still, audience member Shireen Fisher, an appeals judge at the Special Court for Sierra Leone, expressed her concern to the panelists.

“You have several judges and several prosecutors from [the war crimes] court in [Bosnia] who are here to celebrate the ICTY legacy,” she said.

“I suggest that you use those people to get the voice of the region, because I have to agree that that voice needs to be heard, not just once, but every time the issues of the legacy of the ICTY are discussed.”

Rachel Irwin is an IWPR reporter in The Hague.