The Hague Tribunal – Achievements and Shortcomings

The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by a United Nations Security Council resolution in 1993 with the task of bringing to justice persons responsible for grave breaches of international humanitarian law in the territory of the former Yugoslavia from 1991 onwards, with the aim of contributing to the re-establishment of international peace and security, i.e., the establishment and maintenance of peace in the region, which is the primary mandate of the UN Security Council as the executive-political body of this universal international organization. We are witnessing that the establishment of the ICTY did not simultaneously mean the cessation of armed conflicts in the former Yugoslavia, but, I believe, that in 1993, the international legal fight against impunity for the most serious international crimes began.

On the other hand, international institutions, including the ICTY, should not be idealized. It is a product of its time. It did not judge based on abstract but on concrete or less concrete international legal norms that represented a certain achievement of international criminal and humanitarian law. Generally speaking, law is an expression of social relations – thus, international law is a consequence of international relations, especially interstate ones, in which particular state interests play a significant role.

The ICTY was therefore the first ad hoc international criminal tribunal after the Nuremberg trials and the Tokyo trial. It had numerous achievements in its full 24 years of operation. I emphasize the fact that heads of state or prime ministers could no longer invoke their official position as a basis for exemption from criminal responsibility or reduction of criminal sanctions. Thus, heads of state could not invoke the fact that their position constituted an exemption from the criminal jurisdiction of an international tribunal. Likewise, a person acting under the orders of their government or superior could not claim that this fact absolved them of responsibility under international law if they had the possibility of moral choice – adherence to this principle was particularly evident in the Erdemović case.

The ICTY contributed to a kind of further development of the institute of command responsibility as a special form of criminal liability. This institute was perhaps particularly elaborated in the Čelebići case. A cumulation of elements was established, and among them, I highlight the standard of effective control of a superior over a subordinate.

Furthermore, the joint criminal enterprise, although not a new institute in law, was used in an earlier period as a "common purpose," but was directly defined only in the Tadić case in 1999. In order not to try high-ranking officials as accomplices, i.e., instigators or abettors, which is a lower level of criminal responsibility than direct commission, the aforementioned legal construct was introduced with the aim of trying each individual for their personal contribution to the realization of a common plan, purpose, or intent, all based on individual criminal responsibility. This institute, as a special mode of committing a crime, not as a separate crime, covers only those persons who were in the highest positions at the time of committing international crimes. Hence, the judgment of the ICTY Appeals Chamber in the Prlić et al. case is significant, as a joint criminal enterprise of the leaders of the HVO and HZHB, as well as the leaders of the Republic of Croatia, was proven.

By resolving as a preliminary legal issue, the Tribunal has, in several cases, ruled on the legal character of the armed conflict in Bosnia and Herzegovina, concluding that it was an international armed conflict in relation to the then Federal Republic of Yugoslavia (cases Tadić (Appeals, 1999), Čelebići), and in relation to the Republic of Croatia (cases Aleksovski, Blaškić, Rajić, Kordić and Čerkez, Prlić et al). Although the ICTY was not competent for the crime of aggression, i.e., waging an aggressive or war of aggression, as a crime against peace, and was not competent to try states, as subjects of international law, the legal character of the war in BiH had to be resolved in order to possibly convict for grave breaches of the Geneva Conventions of 1949, an international crime that can only be committed during an international armed conflict. For the purposes of the case, the ICTY accepted the test of overall, general, or overall control of one state over forces in another, and did not follow the test of effective control (the requirement to control and supervise every single military operation) as developed by the International Court of Justice in The Hague, a tribunal that judges exclusively states.

At the same time, many victims and their testimonies played a crucial role in proving the commission of international crimes and assigning individual criminal responsibility for their planning, preparation, and commission. The voice of the victims was heard in the Tribunal's courtrooms. The Tribunal's Witness and Victim Support Section performed important work.

The Tribunal prosecuted rape and other sexual violence. For the first time, it was highlighted that rape could fall under torture as a form of crime against humanity. Similarly, the sister tribunal for Rwanda (established a year later, in 1994) ruled in several cases that rape could be considered a means of committing the crime of genocide, provided, of course, that the specific genocidal intent existed. The Tribunal also, in the Tadić case, discussed sexual offenses committed against men in the Prijedor area.

Proving genocidal intent did not require the existence of a written record. Intent could be inferred indirectly, from a unique pattern of action by forces on the ground, especially in the scale and intensity of crimes committed against a protected group. Intent for the crime of genocide could also be proven from the general context of events (from a multitude of facts and circumstances), and based on general political doctrine, while the destruction of religious buildings in a certain area certainly helped prove this crime of crimes. The cases that confirm this position are Milošević, Jelisić, Nikolić, Krstić. This is in contrast to the International Court of Justice, which in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) set significantly higher standards of proof.

The final judgments of the Tribunal contributed to the establishment of truth – the commission of the crime of genocide against Bosniaks in the UN safe area of Srebrenica in 1995 was established, as well as the commission of other, very serious international crimes in the wider area of Bosnia and Herzegovina, the commission of international crimes within the Tribunal's material jurisdiction in the territory of the Republic of Croatia (Martić (RSK), Šljivančanin et al (Vukovar Hospital), Strugar (Dubrovnik)), as well as crimes in Kosovo (Limaj et al, Šainović et al).

Consequently, the impact of the ICTY on the further development of international law in this area is undeniable and irreversible. The jurisprudence of both criminal tribunals at the international level (for Rwanda and for the former Yugoslavia) has contributed to what we understand today as contemporary international criminal law, which our law students study as part of their basic studies. Similarly, this temporary international judicial body served as a foundation for internationalized tribunals, such as the Special Court for Sierra Leone (now the Residual Special Court), the Special Tribunal for Lebanon, East Timor, and the judicial panels for Cambodia. Above all, it left an immeasurable mark on the establishment and work of today's permanent International Criminal Court in The Hague. Finally, the legacy of the ICTY is immense – millions of pages, including trial transcripts, material evidence, witness and expert testimonies, judgments, and other judicial and prosecutorial decisions. This opens up space for researchers, scientists, students, historians, and lawyers to gather new knowledge from the ICTY archives and learn about the work of this ad hoc international criminal tribunal. A tribunal of its time.

Although, in my own judgment, the ICTY also had certain shortcomings in its operation, this cannot diminish all its achievements. Similarly, although the Tribunal's judicial decisions were often the subject of sharp debate, if we were hypothetically in 1993, I would recommend the establishment of such an international judicial institution. It was indeed necessary during that critical period.

Let us now list its shortcomings. Although brave victim testimonies were heard in the courtrooms, victims were very often re-traumatized – also, victims in proceedings before the Tribunal did not have their own representative to the extent they do before the permanent International Criminal Court. Judicial chambers sometimes had strange reasoning and legal logic, especially in the first-instance decision in the Šešelj case in 2016, when it was found that the prosecution had failed to prove that the attack on the civilian population was systematic and widespread (which seems to contradict the first-instance decision in the Karadžić case). In the Šešelj case, it was also stated that the Greater Serbia project might have been political in nature, which is extremely significant, especially in view of the broader context of events during the critical period. Therefore, it seems correct and useful to ask: by what methods or means was this political project to be realized in the territory of the Republic of Croatia and Bosnia and Herzegovina? Similarly, in the first-instance judgment in the Mladić case, the leaders of the Republic of Serbia were not ultimately included as members of the JCE, which somehow contradicts the findings of the trial chamber in the Decision on the Proposal for Acquittal in the Milošević case in 2004, but also scientific and historical truth.

The application of the doctrine of specific direction in complicity, a kind of change in the law on aiding and abetting, proved controversial. It seems that such a doctrine is not supported by customary international law. Counterarguments to this doctrine appeared in the Šainović et al. case and in the trial of Charles Taylor at the Special Court for Sierra Leone. It should be noted that partly due to the application of such a standard and legal reasoning, the Appeals Chamber in the Perišić case rendered an acquittal, who, significantly, was not accused of being a member of a joint criminal enterprise. This chamber, with the dissenting opinion of only one judge, considered that specific direction remains a characteristic of liability for aiding and abetting, and therefore holds that a conviction for aiding and abetting a crime cannot be rendered if the specific direction of assistance for the VRS crimes has not been proven beyond a reasonable doubt. Although the Hague Prosecution sought a review of the Appeals Chamber's judgment in this case, within the statutory period of one year from its pronouncement, due to the flawed conditions that made such a judgment unsustainable, and especially due to the aforementioned doctrine of specific direction of assistance in the commission of crimes, ultimately, by the decision of the judicial chamber in 2014, they did not succeed in their intention. In contrast, the Appeals Chamber ordered a retrial in the Stanišić/Simatović case precisely because of the erroneous application of the law.

The ICTY did not convict anyone for the crime of genocide outside the UN safe area of Srebrenica and for the period before 1995. For example, for the Prijedor area and for the area of another UN safe area – Žepa, although in the Tolimir case the Appeals Chamber stated "that the Bosnian Muslims of Žepa were part of the targeted part of the protected group and were therefore among the ultimate victims of the genocide committed against the Muslims of eastern BiH." Following on from the above, the ICTY in the Krajišnik case rendered a final conviction only for crimes against humanity, but not for the direct commission of the crime of genocide or complicity in its commission, for which he was, inter alia, indicted, concluding that despite the evidence of acts committed in the municipalities constituting the actus reus (acts of commission) of genocide, the ICTY was not presented with sufficient evidence to establish that the perpetrators intended the partial or total destruction of the protected group of Bosniaks and Croats – something similar to the legal reasoning of the International Court of Justice found in the reasoning of the judgment in the case Bosnia and Herzegovina v. Serbia and Montenegro from 2007. It is interesting that in its penultimate (first-instance) judgment, in the Mladić case, the ICTY acquitted the unconvicted accused of genocide in 1992 (and outside the Srebrenica area) due to the failure to satisfy the element of substantial destruction of the protected group.

Finally, although the well-known international legal principle is that the injured party has the right to reparation, victims could not be compensated at the ICTY after final convictions – there was no compensation fund at this body. According to the Tribunal's rules, victims had to pursue their claims for damages before national courts in the region, when, despite all limitations, it was necessary to find a competent court and sue the passively legitimized party. Likewise, persons acquitted by final judgment, i.e., persons who were accused and tried and ultimately acquitted of all charges, could not claim damages or rehabilitation before the ICTY.

The Legacy of the Hague Tribunal?

The role of the ICTY can help establish more normal and healthier relations among peoples and states in the region. The work and mandate of the Tribunal, according to its Statute, certainly fall under the realization of "criminal justice," a kind of first pillar of transitional justice in any post-conflict society. For transitional justice, the realization of judicial truth and criminal justice is a prerequisite or foundation for other processes that will follow and that will, conditionally speaking, build upon the aforementioned first pillar. However, in a strictly narrow sense, the primary role of the court is not reconciliation. The role of this and similar courts is to try and judge individuals based on individual criminal responsibility and thus apply criminal sanctions to perpetrators of international crimes, which aim at special (influence on the specific perpetrator to refrain from committing crimes) and general prevention (influence on other members of society or a collective not to attempt to commit crimes). Whether the purpose of punishment is currently being achieved, and if not – what are the reasons – is the subject of serious scientific studies.

On the other hand, it is very difficult for a legalist to comprehend and properly perceive the phenomenon of negationism, which we witness more or less daily. It is a retrograde phenomenon and process that accompanies this entire region, especially when it comes from representatives of state institutions. I am extremely angered by any type and any form of denial or questioning of facts established by final convictions, whether by the ICTY or by national criminal courts. There are also processes of minimizing committed atrocities, trivialization as an accompanying phenomenon, justification of crimes and criminals, and their glorification. Current public policies, it seems, do not want to condemn bad political regimes and their protagonists of a dark era. They do not want to distance themselves from all of that, admit the commission of international crimes, confront the past, and, above all, publicly apologize and express sincere regret. The reasons for such phenomena are numerous. Only a part of them can be successfully or less successfully suppressed through criminal law legislation in terms of criminalizing the phenomenon of negationism, as has been done, with greater or lesser similarities, in a large number of European countries. This has also been done in the Criminal Code of the Federation of BiH, with its amendment from 2014, when, in the group of criminal offenses against the constitutional order of the Federation, the existing criminal offense of Inciting National, Racial, and Religious Hatred, Discord, or Intolerance was supplemented with a new paragraph which reads: "Whoever commits a criminal offense from paragraph (1) of this article by publicly denying or justifying genocide, crimes against humanity, or war crimes established by a final decision of the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia, or a domestic court shall be punished with imprisonment from three months to three years." The Criminal Codes of Republika Srpska and the state of Bosnia and Herzegovina do not yet provide for criminalization.

Finally, it should be reiterated that the ICTY did not try states or peoples, but exclusively individuals. Nor can the International Court of Justice, which tries states, be understood in terms of seeking responsibility for an entire collective. On the other hand, and in this regard, there is also non-legal responsibility – moral, political, social, for each of us. However, this would already lead us into questions of consciousness, awareness, and conscience, or what every politician must possess: a sense of justice and a sense of shame.

What Next?

A significant step in the ICTY's Completion Strategy was the establishment of the International Residual Mechanism for Criminal Tribunals, a new, temporary body, established by the UN Security Council by resolution 2010 with the aim of continuing the jurisdiction, rights, obligations, and essential functions of the Tribunal and ensuring its legacy. Thus, it is a significant international body that carries out so-called residual functions. The Mechanism has already begun its work, and in my judgment, it will not be able to complete its work in conducting proceedings before the end of 2020, if it strives to adhere to high standards in conducting international criminal proceedings. A few days ago, the appeal hearing in the Šešelj case began, the first-instance trial in the Stanišić/Simatović case has been ongoing for several months, while the Karadžić case is still in the pre-appeal stage. If an appeal is filed as a regular legal remedy, the Mechanism will also need to complete the appeal proceedings in the Mladić case. For now, the International Residual Mechanism for Criminal Tribunals will maintain the immense and very rich legacy of the ICTY. I am not sure at this moment, and in the current constellation of relations in the region, whether it is wise to propose or opt for one of the domestic centers to become a center for archival material of the Hague Tribunal, and later its residual mechanism. For now, it is safest for the archive to remain where it is now – in the city of international justice. At least as long as the Mechanism is in operation.

(The author of the text is a professor of international law at the Faculty of Law of the University of Zenica)