The International Criminal Tribunal for the Former Yugoslavia
Among the many responses to the Yugoslav crisis, the idea of a formal legal institution to adjudicate crimes was broached early on and heatedly debated, and indeed the judicial turn that ultimately resulted has been one of the principal legacies of the crisis. Until the Yugoslav wars, there had not been an international criminal tribunal since Nuremberg and Tokyo; now, in the wake of the Tribunal, creation of and resort to international courts has become a normal, if still contested, part of international relations in response to conflict.*
To many observers, the establishment of the Tribunal looked not so much like the vindication of a commitment to justice as an attempt to avoid military intervention in the Bosnian and Croatian conflicts.1 Before the Tribunal was created, a Commission of Experts was established, in October 1992, to investigate possible crimes and to determine the legal framework that might apply to them.† This Commission, first headed by Frits Kalshoven and then by Cherif Bassiouni, produced an Interim Report that was influential in discussions regarding the creation of a fully empowered court; the Commission later produced a Final Report extensively documenting actions it considered criminal.2 The Commission’s mandate continued for some months after the establishment of the Tribunal, but during this period the Prosecution was only doing a small amount of investigatory work. The Final Report advanced forceful claims about organized campaigns of ethnic cleansing, but did not make specific allegations or recommend any charges against Milošević or the senior leadership in Belgrade.3 The relationship of the Commission’s work to that of the Prosecution, and the disposition of its Final Report—whether or not it should or could contribute to the Prosecution’s indictments—was the source of some controversy, and its findings were not used in any direct way at the Tribunal.4
The International Criminal Tribunal for the Former Yugoslavia was established in May 1993 by the United Nations Security Council, acting under its Chapter VII authority to take measures to ensure “international peace and security.”5 From the beginning, some observers have understood this use of the UN’s power to mean that the Tribunal, though a juridical institution, also had an implicitly political function—a mandate to contribute both to ending the ongoing wars in Bosnia and Croatia, and to eventual postwar reconciliation; this reconciliatory potential and purpose of the Tribunal—though not expressly mentioned in Resolution 808, which spoke instead of restoring peace—was widely understood and assumed.6* The Tribunal was also founded in a period of post–Cold War optimism about internationalism, itself part of a secular convergence between ICL, human rights, and humanitarian law, as well as of the judicialization of international relations and a new—or renewed—focus on individuals in international law.7
That convergence is complex and contested; it is not inevitable—in some ways it has already been challenged by the post–9-11 security environment, even as institutions of ICL have proliferated. The Tribunal was therefore a product of a set of contingent political circumstances, and it remains to be seen if that contingency’s potential will become entrenched and impart a lasting legacy to international law and politics.
Regardless, the ICTY was first and foremost a court, charged with trying individuals accused of committing violations of recognized international law in connection with the conflicts in the former Yugoslavia.8 It was given jurisdiction over the whole territory of Yugoslavia from 1991 until a still-undetermined date, for a defined list of crimes committed during armed conflicts. The Tribunal has concurrent and primary jurisdiction, meaning that although other courts (such as the domestic war crimes courts in Bosnia and Serbia) may also try cases, the Tribunal may take over a case if it determines that this is in the interest of international justice.
The Tribunal has jurisdiction over a specific list of crimes: genocide, crimes against humanity, grave breaches of the Geneva Conventions, and violations of the laws or customs of war.9 Some of these crimes had relatively clear definitions prior to the establishment of the Tribunal; others were ill-defined, of highly uncertain scope, or simply had not been much applied. The ICTY does not have jurisdiction over aggression, meaning that, in formal terms at least, its cases have not assigned responsibility for Yugoslavia’s descent into war. But certainly there has been, surrounding the Tribunal, an expectation that it might do more than simply adjudicate atrocities. As we shall see, some of the Prosecution’s strategies and theories implied or gestured toward claims about responsibility for the wars; this was perhaps most evident, unsurprisingly, in Milošević.
Out of concern for the principle of legal certainty and a desire to ensure the legitimacy of the new institution, the Tribunal was supposed to apply only law that was well established.10 This juridical conservatism is an ideal, since the novel modes of cruelty any war produces will inevitably press upon textual and doctrinal limits devised in response to earlier conflicts. Thus, the signal, ethnic crimes of the Yugoslav wars combined with the naturally expansive inclinations of prosecutors and with changing mores—such as the desire to affirm the grave criminality of sexual violence11—to push the development of the law. Indeed, while at all times formally maintaining that it applies only existing law, the Tribunal and its supporters have also noted, as a point of pride, the ways in which ICL has been shaped, defined, and advanced through the ICTY’s jurisprudence.12 Thus in its very first case, Tadić, the Tribunal applied large parts of the Geneva Conventions that apply only during international conflicts to the warring parties inside Bosnia—a deformalizing move that treated like kinds of violence alike by eliding the division between international and internal conflicts upon which those Conventions had been premised.13 In later cases, the ICTY expansively defined particular crimes: identifying rape as a crime against humanity for the first time in Foča, for example, and enslavement as a crime against humanity in Kunarac, whereas in Kordić & Čerkez it clarified the responsibility of civilian leaders under command responsibility.14 This progressive tendency has also, of course, produced a tension with concerns for legality that surfaced most clearly in precisely those cases, such as Milošević, that relied on particularly ambitious theories of liability.
The Tribunal’s Statute defines two main forms of liability—two general ways in which specific substantive crimes can be committed. Direct responsibility under Article 7(1) includes actual perpetration of a criminal act, as well as planning, ordering, aiding and abetting, and similar forms of direct involvement.15 Command responsibility under Article 7(3) includes liability for a commander or superior who fails to prevent or punish a criminal act committed by a subordinate.16 Milošević was charged under both forms, and this has been common practice in leadership cases at the ICTY.* Both of these forms speak of individual criminal responsibility, not collective or corporate responsibility of the kind available at Nuremberg,† and indeed one of the Tribunal’s principal claims and founding mythologies has been that it contributes to reconciliation precisely by individualizing guilt and thus breaking cycles of collective blame.17
It is also true, however, that war is a collective enterprise. Although decisions concerning the resort to war and the conduct of war are made by particular human beings, they are rarely made by individuals acting alone, and one of the principal devices of the war-making enterprise is its operation through large bureaucracies and massed forces. Some classic war crimes and acts of sexual violence can be clearly ascribed to single individuals, but certain crimes—such as the shelling and siege of Sarajevo, or the genocide at Srebrenica, both of which were charged against Milošević—are by their nature highly complex operations. This complexity manifests itself in two discrete challenges: concerning effects on the Tribunal’s theories of liability and, in turn, the broader effects of the Tribunal’s jurisprudence on beliefs about collective responsibility.
Abstract systems of criminality and JCE: Although war is collective and social, the armies that fight wars operate in hierarchies that imply concentration of responsibility at the highest level. The expressly individual focus of criminal liability in the ICTY Statute, combined with the Tribunal’s general mandate to try those most responsible, means that over time, its cases have tended to focus on higher-level leaders. (A large number of indictments were issued against relatively low-level perpetrators under the first Prosecutor, Richard Goldstone, but many of these were withdrawn in 1998 by his successor, Arbour.) This presents the first particular challenge: The atrocities with which the Tribunal is concerned are often of an unmediated and intimate horror, but the individuals whom the Tribunal actually tries are generally distant from the underlying crime base.* In no case was this more true than Milošević, in which, on the Prosecution’s theory, the Accused sat at the very center of a complex web of relationships—and indeed, was the only individual who connected every part of the case to every other—and was linked to the actual crimes through layers of individuals, many of whom themselves were only indirectly linked to those underlying events. As one assessment of the Milošević trial notes—in terms that apply to high-level defendants generally—“[p]roving the guilt of a senior official nowhere near the multiple crime scenes and establishing a chain of command in circumstances where no lawful authority existed is very difficult and time-consuming.”18
This dual problem of defendants who are distant from the actual violence yet central to the complex network generating that violence has had effects on the ICTY’s theories of liability. The Tribunal’s jurisprudence has expanded the theory of command responsibility to encompass the often informal relationships that defined authority in the conflicts, such as the so-called vojna linija (“the military line”) that bypassed the formal chain of command in the JNA.19 But the ICTY’s principal interpretative novelty has been an expansion of direct responsibility through the theory of joint criminal enterprise, or JCE.20
JCE arose out of (or at least is commonly traced to) doctrines first employed at Nuremberg and Tokyo, in cases in which multiple perpetrators worked in concert to achieve a goal that involved criminal acts.21 The Appeals Chamber in the Tadić case had determined that this concept was implicit in the word “commit” in the ICTY Statute.22 Following Tadić, the Prosecution advanced, and various Chambers accepted, the idea that liability for the crimes defined in the statute could be assigned to individuals who joined together in a common plan or purpose that either itself was criminal or encompassed criminal activity, and that each individual in the enterprise could be liable for all the crimes of the others.
There are three types of JCE generally recognized and used in the ICTY’s jurisprudence: type I, in which individuals share an actual, direct criminal intent, such as a murder; type II “systems of ill-treatment,” such as concentration camps; and type III JCE, in which individuals are liable for the “natural and foreseeable consequence of effecting [the] common purpose,” such as ethnically cleansing a region.23 Type III is the broadest form, contemplating liability for all members of the JCE for any reasonably foreseeable crimes committed by any members, even if some members did not share the requisite mens rea for those crimes.24 For example, genocide, which is a special intent crime, could be charged against a member of a type III JCE, even if that individual himself did not intend to commit genocide. Milošević was charged with genocide under theories relying on both type I—that he himself possessed a genocidal intent—and type III—that in effect imputed the intent of others to him.*
Perhaps the most important aspect of JCE, however, is revealed by a misnomer in the term itself, for although JCE refers to a “criminal enterprise,” the enterprise—the common plan—need not itself be criminal, so long as there are crimes even incidentally but foreseeably involved in its realization. For type III, which we might call theater JCE, the common plan can be political in nature. Thus in Milošević and several other cases involving the Serb leadership, the heart of the JCE was the creation and maintenance of a Greater Serbia—itself not a crime under the ICTY’s Statute—through acts of ethnic cleansing—which are crimes. The potential for conceptual slippage between the idea that the modalities of the enterprise are criminal, and that the enterprise itself is criminal, is considerable. It has been observed that theoretically, all the Serb cases at the Tribunal could be joined to the single JCE identified in Milošević—logically, all were in fact a part of it.† At some point, this becomes indistinguishable from a claim of collective liablity. Equally, the flexible nature of JCE claims allows a prosecutor to shape the case to fit by alleging a narrower or more expansive JCE, or even multiple JCEs that cover different aspects of a larger transaction.‡
The Tribunal’s Statute does not expressly mention JCE, but does impose liability on anyone who “otherwise aided and abetted” the perpetration of a crime,25 and various Chambers, beginning with Tadić, have accepted that this provides a sufficient textual basis.26 JCE has often been compared to Anglo-American conspiracy law, and the comparison is entirely plausible on both substantive and etymological grounds—an example of the influence of common law concepts and practitioners on the ICTY.* Such a doctrine obviously enormously expands the reach of the Prosecution and greatly simplifies its task at trial. Depending on one’s perspective, JCE allows prosecutors to make overreaching correlative claims without proffering direct evidence and violates principles of legality, or is an example of intelligent hybridization—a tool redesigned to match the complex evidentiary patterns of war, in which acts are rarely committed by single individuals but rather in a complex cooperative context, and paper trails and witnesses are hard to come by.
Telling an individual story about collective violence: The second challenge arising from the complex nature of war concerns the broader effects of the Tribunal’s jurisprudence, and relates to the way JCE allows one to characterize the many events of a war as elements in a single criminal process. As we have just seen, JCE makes it easier for prosecutors to show how the many disparate parts of a war are related, which makes the construction of a successful case easier—but this also creates a dangerous temptation to treat a single trial as a proxy for an entire conflict. For, despite the obvious attractions of this technique for those wishing to use the Tribunal to tell the story of the Yugoslav wars—attractions to which the Prosecution evidently succumbed to a degree—the Tribunal’s work is premised upon the beneficial influences of individualizing guilt.
That is, implicitly, an empirical claim about the effects of trials and the nature of communal violence, and it is a hard one to prove. But even on its own terms, the claim raises a consequential question: What is the interaction between a legal process focused on individual guilt or innocence and war-making enterprises that exhibit irreducibly collective qualities? The identification of specific individuals who are declared guilty inevitably serves as a kind of shadow exoneration for the many people not tried. This may be useful—scapegoating is a traditional method for communities to work through the complexities of complicity and put difficult and morally ambiguous episodes behind them.† But it is also, decidedly, a focus on one set of responsible actors as opposed to others, who have other kinds of responsibility, and the fact that ICL makes an individual focus its raison d’etre means it necessarily forgoes engaging with those other forms of responsibility. If the Tribunal’s theory about the relationship between individual and collective responsibility is not correct, however, the institution’s proudest feature would in fact be a basis for its inefficacy and irrelevance in the region.‡
In addition, though tools such as JCE aid in the interpretation of complex events, each trial is, by design, of an individual, and the act of constructing a legal narrative about one person’s guilt inevitably creates incentives to place more guilt on that person, less on others. This creates tensions within an institution such as the ICTY that must adjudicate several related and overlapping claims. In Milošević, the logic of the Prosecution’s case placed one man at the center of a vast network, but in the subsequent trials of other members of that network, the Prosecution has responded to the incentives to place others at the center of their own, smaller circuits of criminality, and thus minimized the interconnections between them and even, perhaps, the links to a man, now dead, who is no longer on trial.*
The ICTY is divided into three main institutions: Chambers, the Office of the Prosecutor, and the Registry. Originally the role of defense counsel was only minimally defined, but there has been increased attention to this function—in part because of the experience of Milošević. Many of the Tribunal’s processes are hybrids of common law and civil law procedures, with some that are novel.
Chambers:27 Chambers include the three Trial Chambers and the Appeals Chamber. Each case is heard by a Trial Chamber composed of three judges; since the death of Judge Richard May during the Milošević trial, standby judges are now assigned to cases. The Trial Chamber is responsible for the conduct of the trial, issuing decisions and judgments, and determining sentence. Appeals of judgment and sentence, as well as interlocutory appeals during the trial, are heard by the Appeals Chamber, which originally had five judges and now has seven. (The Appeals Chamber also hears appeals from the International Criminal Tribunal for Rwanda, or ICTR; two judges from the ICTR sit on the Appeals Chamber.)
Judges are elected by the General Assembly from a list drawn up by the Security Council. The Statute requires that they be of high moral character and possess the qualifications for the highest judicial office, but says little else about their qualifications; in practice judges have come to the Tribunal with a range of backgrounds, from long experience in municipal criminal law to careers in diplomacy. There is also a pool of ad litem judges.
A single judge is responsible for confirming the Prosecutor’s indictment; for the initial Kosovo indictment, that was Judge David Hunt. At trial, judges have an active role—more than in the traditional common law, and in certain respects closer to that of the civil law judge: Judges may examine witnesses themselves, for example, though they rarely have. The judges also write the Rules of Procedure and Evidence (RPE) for the ICTY. In Milošević, the Chamber had a decisive role in determining the length and scope of the trial’s phases, limiting the time available and the number of witnesses that could be called.
The Prosecution: The Office of the Prosecutor is by far the largest of the three organs of the Tribunal. The Prosecutor is responsible for initiating investigations, bringing indictments, presenting cases, and making appeals. The Prosecutor is appointed by the Security Council on the nomination of the Secretary General. The veto power of the Security Council’s permanent members ensures that that this process can be protracted and politicized, as it was, in particular, at the very outset. A Chief Prosecutor was appointed in October 1993, but stepped down after several months without ever having taken up his office, and no replacement was agreed on until August 1994, when Richard Goldstone of South Africa was appointed. Goldstone issued his first indictments in November 1994; the first trial, Tadić, began in 1995, and soon many more followed.28
In 1996, Goldstone stepped down, and was replaced by Louise Arbour, a Canadian judge; it was Arbour who presided over the Kosovo investigation and indictment. Arbour in turn stepped down in late 1999 and was replaced by Carla Del Ponte, a Swiss former attorney general; Del Ponte oversaw the Bosnia and Croatia indictments and was Chief Prosecutor during the whole Milošević trial. She stepped down in 2007, replaced by Serge Brammertz, a Belgian prosecutor and former Deputy Prosecutor of the ICC. The last new indictments were issued in 2004, and since that time the Prosecution has focused on completing its existing cases, though this has included comprehensive revision of existing indictments in cases such as Karadžić and Mladić.
While its investigations were still active, the Prosecution had a large number of separate investigative and trial teams. It also has an information and evidence section and several specialized units designed to work outside of this territorial organization, including a Military Analysis Team, a Leadership Research Team composed of specialists on the former Yugoslavia, a Trial Support Unit, and an Appeals Division. The Chief Prosecutor also has an Immediate Office of advisors that also deals with relations with the UN, state cooperation, transfer of cases, and field offices in the former Yugoslavia. (Until 2003, the Prosecutor was also Chief Prosecutor of the ICTR, but that office has since been separated.)
The Registry: The third organ of the Tribunal is the Registry, responsible for the administration of the ICTY. In addition to all the usual and necessary functions that arise with any large bureaucracy, the Registry also administers specialized services particular to the Tribunal’s nature as an international court handling cases from a sensitive and violent arena of multi-ethnic conflict. These include: a Victims and Witnesses Support Unit; a Legal Aid unit; a Pro Se office to support self-representing defendants;* an extensive Translation and Interpretation service that renders proceedings and documents in English, French, Serbo-Croatian, Albanian, and Macedonian; the Detention Unit in Scheveningen, located within the physical confines of a Dutch prison; and an Outreach Section, formed only after several years and following criticism that the Tribunal was making insufficient effort to explain its work to the populations of the former Yugoslavia.29
Defense: The Statute establishing the Tribunal did not envision the defense as an equal organ with the Chambers, Prosecution and Registry, and counsel has been arranged for each Accused separately. Early on, instances of defense attorneys appearing before the Tribunal who were demonstrably unprepared to deal with its mixed but predominantly adversarial system were proverbial; these were generally from the former Yugoslavia and therefore steeped in a civil law tradition in which the role of counsel in the courtroom proceedings is much less active than in the common law.30 Over time, the defense function has become more defined, professionalized and, to a degree, institutionalized.31† An Association of Defense Counsel Practicing before the ICTY was established in September 2002, which is entirely independent of the ICTY, but which is in part a response to the Code of Professional Conduct for Counsel appearing before the Tribunal,32 promulgated by the Registry, and has become increasingly involved in consultations with the Registry concerning defense practice. Some individual attorneys have become highly specialized in ICL and have defended numerous Accused, but the defense for each Accused remains a highly autonomous enterprise. In his own case, of course, Milošević represented himself, a practice that the Statute allows and that has since been followed by several other defendants, most notably Vojislav Šešelj.33
Investigation and indictment: At the time the Milošević indictments were prepared and during the trial, the Prosecution’s investigations and cases were conducted by separate investigation and trial teams that each organized their work along lines corresponding to the ethnic and political divisions in the Yugoslav conflict. Thus one team would work on crimes committed by Croatian Serbs, while another worked on crimes committed by Croatian forces against Serbs. There were obvious advantages to such an arrangement—such as protection of witnesses—but it also introduced rigidities into the decisional structure of the Prosecution that made it more difficult to ensure a consistent strategy across cases. The initial investigation against Milošević followed this pattern, for example, as one team investigated members of the Serbian and FRY hierarchy for crimes committed against ethnic Albanians in Kosovo.* This model presented complications later, however, as the overarching case against Milošević crossed these organizational lines, implicating investigations in Kosovo, Bosnia, and Croatia.†
The trial phase: The ICTY’s Statute and the Rules of Procedure and Evidence are hybrids, but early on demonstrated considerable influence from the common law adversarial model, though this has been modified over time by rules borrowed form the civil law.34 There is no jury—a fact which in some cases has fit oddly with the common-law inflection of some of the Tribunal’s rules that arose, in their original Anglo-American context, in order to protect jury members from bias.‡
Originally, there were no provisions for plea bargaining at the Tribunal, but the logic of the ICTY’s mandate and the Prosecution’s strategy to pursue senior leaders and those most responsible for crimes—as well as the influence of the many common law practitioners dominating the institution—led to its introduction.35
Evidentiary rules are one area in which civil law norms have proven more dominant; the rules are considerably more relaxed than in the common law tradition, allowing hearsay and extensive witness preparation. In addition, the Prosecution has an obligation to provide an accused with any exculpatory information in its possession. This in part accounts for the enormous amount of documentation that is handed over to defense counsel, though in fact the amount would generally be very large even without any such obligation; cases at the ICTY tend to have enormous documentary records.36*
In 2000, just prior to Milošević, Chambers introduced Rule 92bis, which allowed for written statements to be submitted in lieu of testimony in person.37 The purpose of this rule was to streamline the trial process and avoid undue burden on witnesses who had to travel from the former Yugoslavia and often had to remain in The Hague for considerable amounts of time. The effect, however, was also to reduce the time and attention given to live witnesses in court.†
Language: The official languages of the Tribunal are English and French, but in practice the operations of the whole institution are in English. Trials are conducted with simultaneous interpretation into relevant languages—when the Tribunal began operation, this invariably meant Serbo-Croatian, but later Albanian and Macedonian were added. Milošević required translation between French, English, Albanian, and Serbo-Croatian.
The translation of documents is not only time-consuming but introduces an element of abstraction into the trial process. Simultaneous interpretation necessarily introduces strategic opportunities into the trial process for those who can fluidly deploy a language that other parties—most often the judges and prosecutors—cannot.‡ Witness statements, in particular, are subject to an extensive process of revision and translation that can distort the sense of the witness’ original utterance, even when the translators are highly competent, as those at the Tribunal are.
Potential consequences: Indictees who have been transferred to the ICTY are held on remand in the Detention Unit in Scheveningen. Both the Prosecution and Accused may appeal judgment and sentence—a feature clearly deriving from the civil law tradition—and sentences can be reduced or, less commonly, increased on appeal. Once convicted, individuals are transferred to prison facilities in states that have entered agreements with the ICTY; 17 states, all in Europe, have made such agreements.38 Those convicted receive credit toward their sentences for the time spent incarcerated at the ICTY; given the length of the process, this has often been a considerable portion of the total sentence. Several convicted individuals have already served their sentences and been released.
Patterns in the jurisprudence: The first trial, of Dušan Tadić, a camp guard in the Prijedor region of Bosnia, began in 1996.§ Prosecution strategies that were to appear later in Milošević, such as the focus on Greater Serbia and on the preparations for the conflict, are already evident in this trial, although its geographic scope is much smaller and Tadić was not a significant actor.39 By February 2002, when Milošević began, the Tribunal had heard 34 cases.40 The Tribunal has indicted 161 individuals and heard cases involving 126 accused, with the remaining indictments withdrawn, terminated before trial due to death, or transferred to domestic courts.
The ethnic distribution of indictments has been the source of endemic controversy, reflecting the challenges of converting formal trial processes in The Hague into consequential change in the former Yugoslavia. Far more Serbs were indicted than members of any other community—just over two-thirds of the total—and many Serbs have, in turn, interpreted this as evidence of the Tribunal’s persistent bias against them and its role as an agent of a neo-imperialist West. The Prosecution and its supporters, as well as members of the Bosniak community, have interpreted the numerical imbalance as accurately reflecting the disproportionate share of crimes committed by Serbs.41*
Although the earliest indictments were against low-level figures such as Tadić, a number of the Tribunal’s cases have been against leadership figures—senior military or civilian officials generally charged under both theories of liability, direct and command. Most of the individuals represented in the Milošević JCE or otherwise closely linked to Milošević, and who have been tried separately—in the MOS trial,† Stanišić & Simatović, or Perišić, for example—fall into this category.‡ These cases often present similar challenges to those that arose in Milošević, such as the need to prove de facto lines of control. However, cases against Bosnian civilian and military leaders such as Karadžić and Mladić rest on claims about lines of authority that are often more straightforward and therefore look, by analogy, more similar to the Kosovo indictment against Milošević, in which it was possible to construct claims about formal, de jure responsibility.
Some cases have focused specifically on certain kinds of crimes, such as the Foča and Furundžija cases, which addressed acts of sexual violence; these have generally involved lower-level indictees. These sorts of crimes are also implicated in leadership cases such as Milošević, as they often form part of the underlying crime base that must be proven. For crimes of sexual violence, senior leadership has generally been charged either under theories of command responsibility—as there is little or no evidence of direct orders to engage in such acts, and therefore liability for leaders rests on their failure to punish or prevent—or on a direct theory based on the foreseeability of such acts in the context of a JCE.§
Completion strategy: The duration of the Tribunal’s mandate is not defined in its Statute, and depends upon the Security Council. Even before the Milošević trial began, there were initial discussions about how long exactly the Tribunals should operate. In 2003, the Security Council approved completion strategies for the two Tribunals.42 According to the original strategies—issued while Milošević was ongoing*—investigations were to finish by 2004, trials by 2008, and all work (including appeals) by 2010. The ICTY issued its last indictments in 2004 (charges have been brought subsequently for contempt of court), and in 2011, the last two ICTY fugitives, Mladić and Goran Hadžić, were apprehended. Both Tribunals are currently scheduled to finish their trials by 2014, other than Mladić, Hadžić and Karadžić, which should last until 2016; in any event, appeals for the various cases will certainly take longer.43 A residual Mechanism for International Criminal Tribunals has been established to handle remaining casework from both Tribunals.44
Because the Tribunal is a creature of the Security Council’s Chapter VII powers, states have a clear legal obligation to cooperate with orders of the Chambers and with investigations by the Prosecution. The Prosecutor and the President of the Tribunal report regularly to the Security Council, and have used this forum, as well as informal publicity, to pressure the states of the former Yugoslavia to hand over indictees, provide access to documents, and cooperate with investigations and trials. The Council has only occasionally and inconsistently acted to enforce these obligations, however.†
The Tribunal does not have its own enforcement mechanisms, and is practically reliant on outside actors to ensure compliance with its processes.45 Serbia and Croatia in particular were, for a considerable period of time able to resist or shape the Prosecution’s and Tribunal’s demands for information and access.46 The controversy over the VSO documents, discussed in Chapter 1, is a principal example of how Serbia was able to slow and restrict the release of information to the Tribunal, minimizing the potential damage to Serbia from revelations about its role in the conflict, in ways that also damaged the public image of the Tribunal.
At various points the Tribunal has had powerful if fickle allies in the major Western powers. Although states such as Britain and France were formally strong supporters of the Tribunal, they were not in fact enthusiastic about its effective operation in its early stages, as they were concerned it might interfere with peace negotiations. During the period immediately after the Dayton Accords, NATO forces in Bosnia pointedly resisted efforts to apprehend indictees.47 Early efforts to arrest some of the leading Bosnian Serb indictees were either aborted because of leaked information or were thought to be more show than serious. Beginning with the arrest of Goran Jelisić in January 1998, however, this policy shifted, and NATO became a relatively reliable supplier of indictees.
During and after the Kosovo conflict, NATO states dramatically increased their support of the Prosecution.* In addition, the EU accession process has become entangled with cooperation with the ICTY, with Serbia’s progress through the stages of association and candidacy sometimes held up by demands that it demonstrate greater cooperation with the Tribunal—a process that gave the Prosecutor at least some influence over the pace of the process, and therefore indirect leverage over Serbia. The apprehension of Karadžić in 2008 and then Mladić and Hadžić in 2011 were generally thought to have been the product of pressure from the EU, and especially the Netherlands.48 In 2013, following a series of controversial acquittals of military and police leaders, a letter from the Danish Judge Harhoff was leaked to the press, in which he suggested that Judge Meron, the Tribunal President and an American citizen as well as formerly Israeli diplomat, had been influenced by US and Israeli military officials, and in turn had pressured other judges to acquit senior military figures.49
The Tribunal began its operations in 1994; it will likely reduce the scale and alter the mode of its operations in 2014 and close a few years after that, though the power of institutions to persist ought never be underestimated. Twenty years is a considerable time, and it should be possible to make a preliminary estimate of the Tribunal’s effects and influence.
The ICTY itself lists its achievements in five categories: holding leaders accountable; bringing justice to victims; giving victims a voice; establishing the facts; developing international law; and strengthening the rule of law.50 In general, the Tribunal has consistently pointed to its own jurisprudence as one of its strongest legacies—the clarification and advancement of a corpus of criminal law that has served as a model for other international tribunals and for domestic war crimes courts and that has contributed to the entrenchment of the rule of law.51†
The Tribunal’s legacy in law is unquestionable: The modern, flourishing field of ICL has been created and defined at the ICTY and ICTR, and of the two, the Yugoslav Tribunal—for reasons of its prior creation, its greater resources and patronage, its more efficient operation, and its centrality to Euro-Atlanticist agendas—has generally been the more influential. The structure, processes, and style of modern ICL institutions are all derived from the Tribunals’ experiences. The obvious problem with this strong focus on institutional achievements, of course, is that they are surely not valuable in and of themselves, but only if they contribute, directly or indirectly, to broader effects, such as peace, stability, or justice, broadly considered.
Indeed, one of the principal claims originally made for the Tribunal was that it would have real influence on the shape of the conflict and post-conflict reconciliation in the former Yugoslavia. Yet it is enormously difficult to say with any confidence what the influence of the Tribunal has been. Those who do say with confidence that the Tribunal has had an impact in the region rarely have clear proofs of their claims; equally, skeptics, whose numbers have grown considerably since the promising days of the Tribunal’s establishment, cannot say with certainty that it has done nothing or has done harm.
On deterrence, for example, it is possible to say that the Tribunal has failed, since during the period when its operations were getting into full swing, wars broke out in Kosovo and Macedonia. Conversely, for some, Kosovo is a proof of the continued theoretical viability of deterrence, as it was perhaps the demonstrable weakness of support for the Tribunal—and the Tribunal’s failure to indict Milošević—that persuaded him he could act with impunity.*
We need not insist on total certainty in order to say something about influences. We can note, for example, that claims about the Tribunal’s effects are now quite modest by both relative and objective measures: They are considerably more modest than those originally projected in the early 1990s, and they are, quite simply, modest on their own terms. Two recent studies show this point: one, focused on Serbia, finds only thin evidence of positive effects on the attitudes of the local population—that ICL “shrink[s] the space for denial.”52 The other, focused on Bosnia, finds that the Tribunal has shaped conversations or provided a forum for debates, but little in the way of actual changes in attitude.53
And we may be fairly certain of some things the ICTY has not done: Even defenders of the Tribunal—including the Tribunal itself—have conceded that it has not yet produced demonstrable reconciliation in the region.54 Arguments that ICL deters conflict and crime are considerably rarer than they were when deterrence in the former Yugoslavia was still entirely prospective; the field has shifted toward expressive theories of law that do not posit a direct causal relationship between trials and behavior, and although in part this reflects changing attitudes toward ICL’s teleology, it also suggests an encounter with the imperfectly understood but palpable empirical challenge of what has happened in the region—and what has not—since the Tribunal’s formation.55
Finally, many of the claims for the Tribunal’s effects are conjectural and unfalsifiable, anticipating future benefits that either will or will not materialize. A future is sometimes claimed by gesturing back toward Nuremberg,56 noting how its effects on Germans’ perceptions of their history and collective responsibility were hardly visible until a generation later, or indeed lay entirely dormant until the 1968 upheavals produced the right conditions for a conversation, and the records and documents of the IMT were there, ready to be deployed.57 As the Tribunal is now 20 years old, it is getting near the age Nuremberg was when, perhaps, it began to have a measurable effect; it should therefore now be possible to ask similar, even more searching questions about the Tribunal’s effects. This book is, in part, an attempt to do just that.