Next May, the International Criminal Tribunal for the Former Yugoslavia (ICTY) will complete its seventeenth year of operation. With a cost in the billions of dollars, this ad hoc institution shows no signs of wrapping its work up quickly. Indeed, there are trials and appeals planned well into 2014 and 2 indictees have yet to be apprehended.
While there have been some successes in punishing actual perpetrators of crimes, elements of bias have undermined the court’s credibility. The biggest problem, however, is the perception that the ICTY is yet another instrument of great power politics. Indeed, a consistent application of the court’s principles would seriously damage the national sov-ereignty and freedom of action for key international powers, the United States included. As such, the ICTY’s stated goal of promoting reconciliation by establishing individual culpability for serious war crimes will be dismissed as a cynical victors’ justice by many countries. Ultimately, it will set back efforts to establish impartial international law for that very reason.
Established by Security Council Resolution 827 on May 25, 1993, the Tribunal’s purpose was to investigate, prosecute and try crimes occurring during the military conflicts taking place in the former Yugoslavia between 1991 and 2001.
The conflicts in Yugoslavia were complex but classic ethnic civil wars. As a multi-national federation of republics in the Balkans, Yugoslavia started to unravel as the end of communism and the Cold War removed external and internal restraints on local ethnicities. Serbs, the most numerous and scattered nation, opposed the breakup of Yugoslavia with-out adjustments of the internal borders as this would leave millions of them outside of their home republic, Serbia. Slovenes, Croats, Bosnian Muslims and Kosovo Albanians saw the end of the Cold War as a chance to revive their national independence and would not let the opportunity pass to leave the federation. The problem, of course, was that the internal boundaries were not consistent with the ethnic territories. As a result, the battle over borders proved exceedingly violent and intractable.
The violent withdrawal of Slovenia in the summer of 1991 was generally uncontested by the Serbs. Croatia with its territorially compact Serbian territories and Bosnia with a third of its population consisting of Serbs, were another matter. By 1995, over 110,000 people were dead and hundreds of thousands of people were forced from their homes, the fallout of ethnic cleansing of minorities on the wrong side of a disputed border. In 1999, one of Serbia’s provinces, Kosovo, followed the same path toward independence. Its vast majority of ethnic Albanians appealed to the international community to intervene. NATO, led by the United States but without Security Council approval, engaged in a 78-day bombing campaign against the Serbs, leading to the occupation of the province by NATO troops. A year later, another Albanian insurgency, this time in Macedonia, flared up but was defeated by Macedonian authorities with international support.
In 1993, as conflict was raging at the time, particularly in Bosnia-Herzegovina, many in the international community saw the establishment of the ICTY as a chance to “do something” short of intervening militarily. The Security Council would not approve military action as this would involve backing one side in what was clearly a civil war. Media images of the war had caused a great revulsion around the world, particularly among elite opinion makers in Western countries. Many Muslims felt solidarity with the perceived primary victims of the war, the Bosnian Muslims.
The Clinton Administration, after having criticized the policy of President George H.W. Bush as weak during the election campaign, was eager to make its mark in setting the post-Cold War order. Russia under President Boris Yeltsyn was occupied with the internal problems arising from the collapse of the Soviet Union and communism within Russia itself. The Europeans, after agreeing to a tighter union and a common currency in the recently signed Maastricht Treaty, were eager to assert influence in their own “backyard.” But old divisions between the Conservative-led British and the newly-unified and self-confident Germans prevented any consistent action. Setting up an ad hoc court to try war crimes would be a solution all of the great powers could agree to. Indeed, it was hoped that indictments against political leaders could be used as leverage against the Serb leaders, possibly influencing their behavior. Though this was never stated as an actual goal of the ICTY, in practice it would prove often to be the case. Slobodan Milosevic, the President of Serbia, was indicted during the NATO campaign against Serbia in 1999. He agreed to terms soon after, reportedly hoping to “bargain away” the indictment.
The ICTY was to prosecute breaches of the Geneva Conventions, violations of the laws or customs of conflicts, crimes against humanity and finally, genocide. Of the 162 indictments issued by the ICTY, 48 were concluded with a finding of guilt; others were transferred, some indictments were withdrawn and several indictees died in custody, including the most famous, Slobodan Milosevic, long-time President of Serbia. No individual has yet been convicted of genocide.
While many perpetrators were convicted of war crimes, many of the cases seemed to be politically motivated. Operating under the narrative that the Yugoslav conflicts were based on Serb aggression rather than a multi-sided civil war, the ICTY issued three quarters of their indictments to ethnic Serbs. While many military leaders and soldiers were indicted on all sides, the entire wartime political leadership of the Serbs in Serbia, Serb-held Bosnia and Serb-held Croatia were indicted. The charges were often for engaging in a “criminal conspiracy,” a dubious claim that could not credibly be tied to atrocities. Only one ethnic Albanian politician was indicted. The rest of the Croatian, Muslim and Albanian indictees were military men or paramilitary leaders.
In addition, while 500 civilians were killed by NATO bombing in Serb-held Croatia and Bosnia in 1995 and Serbia itself in 1999, the ICTY refused to even consider investigations of the political and military leadership of NATO countries. A NATO spokesman at the time, Jamie Shea, commented that NATO was the “friend” of the Tribunal, that NATO countries provide most of the financing for ICTY activities and that NATO’s intent was to promote human rights, not violate them.
Significance to International Law and Diplomacy
Shea’s remarkable comments offer us a clue as to the lasting significance of the Tribunal. The ICTY was created, in part, to punish violators of human rights. By creating case law precedents, it was hoped that future violators would be deterred. Absolving NATO of wrongdoing underscores the fact that defense of human rights can now be an argument used by the great powers to intervene militarily with impunity or even without Security Council authorization. The ICTY or its sister tribunal dealing with crimes committed in Rwanda will punish small, weak countries and their leadership for violations of international standards. But who will police the policemen? An International Criminal Court (ICC) was partly set up to be a permanent war crimes tribunal and a check on military behavior in general. The US has not yet accepted its jurisdiction, nor have many great powers such as China and Russia.
Without a consistent set of principles and the participation of all countries, both great and small, international enforcement of the norms of war and of human rights will suffer as they will be perceived as applying only when the big powers want them to apply.