The ICTY: Justice in a box

Lucy Moore RSS / 14.07.2007. u 13:11

“As I was passing by, I saw that there were dead bodies, corpses, lying on the grass in front of the school bathroom… There may have been a dozen corpses,” said a small, female voice with a British accent over the loud speaker. The voice gave sound to the man’s face that appeared on the television screen overhead.

The broad shouldered owner of the muted face and the translated statement sat before me, his back to the pane of glass that separated him and the court room from me and a well-dressed young man one row over. Excepting the guard who stood by the door, the two of us were the only audience that day to the afternoon session of the most recent Srebrenica case underway at the ICTY (International Criminal Tribunal for the former Yugoslavia).

At the invitation of a friend of mine now living in The Hague, I went to the Netherlands to visit her and to watch the Tribunal.

During my visit I attended three separate cases. First I watched the Prlić trial, a case brought against Jadranko Prlić and five other Bosnian Croats charged with crimes against Muslims in the area around Mostar. There I listened to a Bosnian woman, once in charge of refugee issues within the Bosnian Embassy in Zagreb. Recalling her work between 1992 and 1994, she described the immense professional and personal challenges she faced while dealing with an incredible influx of refugees and a complete absence of information.

My second day I watched the Haradinaj trial in which Ramush Haradinaj and two other leaders of the KLA (Kosovo Liberation Army) are being tried for crimes committed against Kosovo Serbs and unsupportive Albanians. There I watched the questioning of an Albanian witness brought in to explain the technical workings of the Lake Radonjić canal. The witness described the water depth and speed, the number of gates and the seasonal changes. All this culminated in an investigator’s final question: If a dead body is dropped in the canal, is the current forceful enough to carry it away? The answer, more or less, was yes.

And lastly I attended the current Srebrenica trial, Popović et al., one of several cases against Bosnian Serbs accused of crimes related to what has now been ruled genocide. It was during this trial that I listened as the broad shouldered witness from Ročevići, a once professional soldier turned caterer, recalled the bodies strewn about in front of an elementary school bathroom, the screams of sweltering prisoners trapped inside the school gym and the threats of the drunken soldiers who had brought them there.

As I sat in the chilled, stale air of the over-climatized courtroom, in this quaint Dutch city far from the village of Ročevići or Lake Radonjić, I found myself more keenly aware of the region’s recent atrocities than I had been at any point living in Belgrade, the capital of a country whose current political and social climate have been largely facilitated by the very crimes on trial.

Little about my first impressions of the Tribunal suggested that its proceedings could evoke such an awareness of human atrocity, let alone atrocities committed in villages far away in Eastern Bosnia or remote regions of Kosovo.

Like any court, the ICTY hinges on order and process. Every document is numbered and filed accordingly, every word transcribed, and every testimony clarified, bring the proceedings to a staggeringly slow speed and stripping testimony of much of its emotion.

As witnesses recount their stories, the judges leave no room for poetics. When one witness in the Popović trial described a woman in his town as being “hit and wounded” while out washing her dishes in the front yard, the judge interrupted an asked, “ hit and wounded by what? What hit her?”

“A sort of infantry weapon,” the witness answered.

“And you mean that she was physically hit with a weapon or hit with a bullet from an infantry weapon?”

“A bullet, yes,” he replied, clearly flustered by the interruption.

Yet for all the court’s attention to word choice, the pronunciation of Serbian, Bosnian, Croatian or Albanian words is regularly disregarded. While judges will stop testimony for clarifications like “hit” versus “hit by a bullet,” they pass right over the manglings of names of people and places that crookedly roll off the lawyers’ tongues. Granted, some degree of mispronunciation is inherent to the international nature of the court, but such repeated garbling looks disrespectful and ignorant.

The establishment of fact “beyond a reasonable doubt” is a primarily goal for the ICTY. The general public of the former Yugoslavia seems to take this goal with a hefty dose of skepticism. After all, “How can a team of foreigners make sense of events locals themselves cannot explain?” the thinking goes. This perceived gulf between international investigators and local communities only widens at the sight of Tribunal officials who are far better phrased in incomprehensible legal jargon than in the names of the people and places they are investigating.

This acceptance of local names as too complicated to pronounce also harkens back to Western perception of the Balkans as a region too complicated for the “civilized world” to comprehend. It was this very perception that, not so long ago, allowed the widespread acceptance of the “ancient ethnic hatreds” theory as an excuse for international inaction in the face of the very crimes now being tried.

Just as the nature and scale of the crimes in question do not seem to have changed the fundamental workings of the court, neither do they seem to have changed the fundamental behavior of the lawyers involved. Despite the fact that day in and day out these lawyers investigate and analyze crimes that claimed hundreds an in some cases thousands of lives, they still seem unable to avoid petty jibes at their opposing “learned friends.”

Annoyed by an objection from the opposing side, one lawyer in the Prlić trial turned to the witness and explained the objection as “just a game they play.” In the same case, another lawyer, prefacing a statement to be read aloud, addressed the prosecution and mockingly said, “It may be inconvenient for the prosecution to hear facts in this case, but…” and proceeded to read the paper before him.

Yet for all its faults, the Tribunal is powerful to watch; and its poignancy, at least in part, stems from some of the same attributes that leave its process so lifeless and sterile. Without poetic flourishes and presentation the voices of witnesses stand strongly on their own, more so than in any book, documentary or commemorative ceremony. And though the lawyers may fail to master their đ’s and ž’s or to hold back their arrogance, the operation as a whole - more than 1,100 strong and now backed by over $270,000,000 annually - shows that the international community is listening.

But I had to go all the way to The Hague myself to recognize the Tribunal for its value. And valuable or not, the court is entirely irrelevant for the countries most greatly involved if its effects cannot be appreciated beyond its walls and the theoretical world of international justice.

But what should be changed to put the work of the Tribunal within public reach? That the court is physically far removed from the former Yugoslavia certainly does bring an inherent level of inaccessibility, but an internal location is simply not an option. At times the court proceedings have been broadcasted on television, but never with the range of coverage needed to convey the breadth of the court's work.

That the Tribunal is more frequently discussed as an obstacle to EU accession than as a body of justice working towards future peace and stability is far more problematic than the institution’s locale. The story of Serbia and the Tribunal has become “Us versus Them,” and Serbian politicians playing the victim card are not the only ones to blame. The use of the EU as a dangling carrot to push for the arrest of accused war criminals is unavoidable. After all, even with such stipulation the arrest of inditees has been a long, slow process. But Carla Del Ponte’s endless emphasis on arrests over all other aspects of the Tribunal distracts from a public understanding of the court’s value as a source of justice and a more stable future.

But perhaps it is unrealistic to expect this generation, for whom the subject matter is still an open wound, to gain much from the Tribunal’s work. No amount of questioning, investigation and documentation can change damage done to individual lives. But perhaps generations from now, when the wound is healed but still easily reopened, all the Tribunal’s documentation and endless pages of court testimony will help to make the fire of nationalism, heated by exaggerated tales of historic victim-hood, a harder flame to fuel.


Komentari (10)

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Sneska Sneska 19:45 14.07.2007

First thank for description of the court..

I read carefully your description, especially since you are able to observe it in relatively calm state. I am not saying that you weren't touched by stories told, but obviously description of the court by a Serb or Croat or Bosnian Muslim would have been colored by many more emotions.

But, after reading it all, I still thought...Hague is not about justice. I am not saying that the idea of it wasn't about the justice, but that the practical dealings and how it is being run doesn't seem to be about justice and especially NOT about helping future generations to live together. If the international political pressure was used to push each Balkan country into prosecuting its own generals and war criminals, this would have been better because it would lead to not being able to blame someone else, "them," as unjust and it would force to have more discussion of the crimes within the countries in whose name they were committed. However, as you said, with Hague far away, nothing of its substance comes to Zagreb or Belgrade or Sarajevo but the fact that the country is being blackmailed to extradite its citizens in order to become part of the western world.

It feels patronizing to me, as if all those judges and lawyers say, "They are not capable of handling it on their own, so we will do it for them." I am convinced that this isn't the case and that those proceedings could have been organized on the local soil. Not to say that local court procedings wouldn't be difficult, but not impossible.

Did you feel like it was patronizing? Helping the people who are obviously in the need of guidance and little bit irrational and too emotional? Or is this my bias, in your opinion?
Lucy Moore Lucy Moore 09:39 15.07.2007

Re: First thank for description of the court..

The relationship between the ICTY as an international body and the people of this region is precarious to say the least. For several reasons, however, I don’t believe internal courts would have been possible.

First, the UN established the ICTY in 1993, two years after the start of Yugoslavia’s violent dissolution and two years before Bosnia would see any kind of peace. At the start, it would have been absolutely impossible to organize any form of courts, investigations, or legal proceedings internally. Even now Bosnia is a long way from providing the inner structure needed for the kind of work done by the Tribunal as ethnic divisions are still entrenched in the very structure of Bosnia's presidency and government.

Then you have the issue of “Us versus Them.” As you pointed out, were I Bosnian, Croat, Serb or Albanian I would have had a specific bias in examining the court, one that, try as I might, I could not avoid, just as, try as I might, I will never know what it is like to see the ICTY, the current state, or the region’s recent history from the perspective of a individual from the former Yugoslavia. Given the inherent presence of bias, an internal court would give rise to a “Us versus Them” along lines already drawn and bloodied in the 1990s, lines far more volatile than those between an “Us versus Them" in which "Them" is the somewhat removed EU and UN. Such division would not only prove unstable but would also undermine any establishment of fact. I am sure the people of Croatia and the Bosnian Federation would see court officials in, say, a Serbian-run case against Vojislav Šešelj as the same “Them” as Šešelj himself, just as the people of Serbia and Republika Srpska would likely perceive the same of a Croatian court trying Ante Gotovina. (For case details on Šešelj, Gotovina, and other inditees see

Then you have the witnesses. Appearing before the court in The Hague is an intimidating undertaking. Just imagine how much worse it would be for a Kosovo Albanian to appear before a Serbian court in Belgrade.

But unfortunately, you are right. I did detect an almost constant sense of hierarchy between the internationals and those from the region. Some aspects of this dynamic are impossible to avoid. After all, you have a court filled with internationally selected judges and lawyers – some of the best in their fields – questioning soldiers, policemen, farmers, and small business owners from the region for whom the workings of a court is not their expertise. While the structure of the court dictates that kind of relationship, it does not wave lawyers and judges of the obligation to learn pronunciations, a small detail but one that only sends a message of disrespect for the people already somewhat forced into the role of subject to an experiement in international law.
Sneska Sneska 05:49 16.07.2007

Re: First thank for description of the court..

All of the points you raise are valid and this is the reason that I say that local courts would have been difficult to organize. However, I do not think that it would have been impossible. If the EU and UN gave all of the millions of dollars invested into Hague to local courts, I am certain that there would have been lawyers and judges willing to organize. And yes, it wouldn't have been swift and probably would be just starting right about now (or maybe 2-3 years ago), but what's the difference? The main people being searched for are largely still at large and the court decisions haven't really had any impact, except for the accused to become martyrs or symbols of defending everyone from their home country. This wouldn't have happened if Croats were persecuted in Croatia, Serbs in Serbia, etc., and further more this type of courts would have led to individual responsibilities as opposed to calling for collective guilt (the latter not being the best way to reach reconciliation).

And the final thing that makes me think of the court as patronizing is exactly how much those lawyers and judges are paid. When Carla Del Ponte sports a Louis Viton (sorry for spelling, but I obviously don't own one), you know that something is not right. And the fact that she acts as superior to the elected officials of the Balkan countries also bothers me. Nobody voted her into position.

Well, obviously I have a lot of opinions about this. But, I think that it is good that you posted your perspective and description of the Hague. Again, thank you for that....
Michael Michael 18:52 15.07.2007

A further complication...

What's your take, as an American, on the fact that the US doesn't support the court, but nonetheless has joined the international chorus calling for Serbia to deliver Mladic et al to the court?
Lucy Moore Lucy Moore 08:17 16.07.2007

Re: A further complication...

That the US is calling for the arrest of Mladic doesn’t strike me as problematic. That the US is not a member of the ICC seems a much bigger problem and one that speaks to the dangerous perception America has of itself in the world as a country with the unchecked right to enforce its policy abroad.
oldtajmer oldtajmer 15:38 16.07.2007

Re: A further complication...

The irony is that the FRY (SRJ), later SCG, and I guess now Serbia, signed on to the ICC. I still have hope that the next US administration might sign on. Bill Clinton endorsed it, but did not sign on due to the balance of power in the Senate (namely Jesse Helms, chairman of the Foreign Relations Committee at the time, would have none of it, his was the "Kangaroo Court" quote) leaving it to the next administration. The Bush administration, of course, didn't even consider it. Perhaps an Obama or Clinton II administration, with the likes of Helms out of the way, might reconsider signing on.

I, too, don't see this as a complication BTW. Real complications would arise if a US citizen were indicted by the Court. That would be the true test. For example, if some EU country were to actually arrest Harry Truman and hand him over to the ICC for prosecution

I have to say, I am partially sympathetic to the current US position. Many states have non extradition clauses in their Constitutions. Is a sovereign state expected to violate its own Constitution (of 200+ years no less) in order to comply with some international treaty? I think no self-respecting superpower would accept that.
Sofroniye Sofroniye 22:29 16.07.2007

International Law

International law is a joke since there is no executive branch which can enforce anything on what kind of justice we are talking about ? Court rulings have nothing to do with justice but with the law. And furthermore where does the justice begin ? And where does it end? In Jasenovac or in Srebrenica ? Or maybe it begins with "handzar" brigades from WWII ? Or does it begin with illegal bombing of Serbia ? Or maybe by illegal changes of borders nowdays? But of course, as Mr. Kuchner pointed out laws are agreements and thus can be changed. So is then the definition of justice determined by those who decide on these changes ? And who died and made them superior all-knowing beings able to determine what is just :) Anyhow it looks like it all begins and ends with Srebrenica :) Recently a colleague of mine (an American from Alabama) asked me how come Srebrenica got so much attention in western media when it does not look so significant compared to other bloodbaths. I told him Clinton simply needed something to divert attention from Monica Lewinsky case :)

Those who killed civilians should be punished and that is the law. But how can we speak about JUSTICE if Naser Oric is free (just as an example). In his case the LAW may have been served but not the JUSTICE.

And to even dig further, separation of Croatia may have been JUSTIFIED but not LEGAL according to the constitution of SFRJ and the international law since it was an internal affair of a country recognized by UN. So JUSTICE and LAW are not synonyms. We can rationalize and discuss what is LEGAL but please restrain yourself from trying to convince anybody what is JUST. It is rather personal point of view.

And just to add...even what is LEGAL serves day-to-day political trends/interests/etc. As an example take the case of Lord Conrad Black in Chicago. Many legal experts claim that he should have been found not-guilty. Equally large number says he was guilty. In my opinion that trial is also result of a current political interest as was Enron, MCI WorldCom etc. And so is ICTY. But let us wait 20-30 years from now and see what will history have to say from that distance.
AWilcoxson AWilcoxson 00:20 24.07.2007

ICTY Does Not Help Ethnic Reconciliation

As somebody who watched the videos and read the transcripts from the trial of Slobodan Milosevic on a daily basis, I am far less impressed with the work of the tribunal than Ms. Moore. The Tribunal (and the trial of Milosevic in particular) struck me as more of an exercise in propaganda than a criminal trial.

Like Ms. Moore, I heard countless witnesses tell tales of atrocity to the court (these are called "crime base witnesses" in ICTY-speak), but unlike Ms. Moore I followed the proceedings on a daily basis, and what I saw in the Milosevic trial was deeply disturbing.

The prosecution spent very little time presenting evidence related to the acts and conduct of Milosevic. Instead they focused most of their energy on presenting crime base witnesses, most of whom had no useful evidence against Milosevic personally.

Take the example of Ana Bicanic (and she is by no means the only witness I could use for an example), she is a Croatian woman from Saborsko whose house was blown-up and her husband killed (execution-style) during the war. When asked if the perpetrators of this crime were members of the JNA, reservists or T.O. she said, "How should I know what they were? But they had military uniforms on. They had real military uniforms on."

Certainly Ms. Bicanic tells a sad story, but its a story that had nothing to do with Milosevic. No evidence was ever presented that linked Milosevic to the destruction of her house or the killing of her husband or to any of the events in Saborsko. The witness didn't know who killed her husband or blew-up her house, all she knew was that the perpetrators wore grey camoflague uniforms and "spoke with a Serbian dialect".

Her testimony was nothing more than a general accusation against the Serbs. She said, "The Serbs were very happy when they were doing this (killing her husband and blowing-up her house), because that's what they wanted, to have Greater Serbia and to destroy whatever they could destroy."

Unfortunately, evidence of that sort was commonplace at the Milosevic trial. Witnesses would come and testify that some (usually anonymous) Serb did this or did that to them, often times accusing their civilian Serbian neighbors of committing crimes against them.

It would be one thing if the prosecution had followed-up this type of evidence with evidence linking Milosevic to the crime(s) in question, but evidence regarding Milosevic's acts and conduct was in conspicuously short supply. To any fair-minded person watching his trial, the proceedings appeared to be more of a collective witch-hunt against the Serbs than a criminal trial of an individual.

The ICTY turned Slobodan Milosevic into the defender of Serbdom. General accusations against "the Serbs" were common at his trial, and all he had to do to turn himself into a hero in the eyes of many Serbs was rebut the general accusations that were being made, not against him, but against the Serbian people as a whole.

The ICTY set-back the cause of international justice and brought itself into disrepute by allowing such a farce to go on in the first place. I don't see how demonizing "the Serbs" (or any other group) with nebulous allegations of atrocities is going to help the process of ethnic reconciliation in the Balkans. If anything, the ICTY's conduct has been harmful to ethnic reconciliation.
Bob Petrovich Bob Petrovich 22:45 20.08.2007

A more burning questions

The question of the perplexed locals (“How can a team of foreigners make sense of events locals themselves cannot explain?”) pales in comparison with more puzzling questions that no one seems to ask. Here are some
of the most interesting:

-How is it possible that UNSC, an organ of The United Nations without the judiciary powers, can establish it's auxiliary body and relegate the judiciary powers to it, although UNSC does not possess the judiciary powers under The UN Charter?

- How ICTY, an auxiliary organ of UN, formed with the political objective ("to stop Serbian aggression" can claim to be institution of jurisprudence?

-ICTY's mandate covers the period from January 1990 to the present date to punish the war crimes on the territory of former Yugoslavia How come ICTY never investigated, charged, processed and incarcerated foreign nationals and NATO members responsible for crime against peace, the penultimate crime of Nuremberg Tribunal? Especially having in mind that ICTY likes to call itself "the biggest war crimes tribunal since Nuremberg"

- The budget and time allocation of ICTY is some 50 times higher than of sister tribunal ICTR. However, the number of civilians killed in Rwanda is significantly higher than in former Yugoslavia (approx. 15:1) How this paradox can be explained with the usual self-styled humanitarian rhetoric?

- What was the reason Canadian Prosecutor was sacked from the ICTY? Does it have to do something with ICTR, i.e. specific investigation on the role of American agencies in killing Rwandan and Ugandan presidents that started the havoc in Rwanda? If true, how ICTY can claim being impartial, when American and German involvement in fomenting and exacerbating Balkan tragedy is a part of historical record?

- When Swiss Prosecutor Carla Del Ponte was elected into ICTY in 1999, Switzerland was not a member of The United Nations (joined in 2002). How is that possible?

- The statute of ICTY is neither Anglo-Saxon nor Continental, but mix of both, to the detriment of the accused. It neither has a jury (Anglo-Saxon) nor prescribed codified law. The procedure can change at a whim of a tribunal, and often does, because judiciary and legislative powers are not separated in this tribunal. How come that self-styled defenders of human rights are silent about this open violation of the universal human rights.

-In one high profile case, defendant was left to die in the cell without being given adequate emergency medical assistance. Cell was monitored 24/7. This is a case of torture with fatal outcome. Again, why are self-styled humanitarians silent when Sheveningen is more deadly than Guantanamo Bay?

- What happened with high profile ICTY personnel after leaving ICTY? Did they continue their legal careers? Judging from their example, who made a right decision - they for joining it, or those who ran away after learning what ICTY is all about?

Those nine questions resemble the nine chapters of a book on duplicity, racism and moral relativism. Fifty or hundred years from now, people will judge us on ICTY, the same way we judge Nazi Germany on People's courts or Soviet Union on Moscow processes.

One who does not want to be judged harshly, has to speak up now, while it is still relevant.
Wim Roffel Wim Roffel 12:34 18.02.2008

I have mixed feelings about the court

Living some 20 km from the tribunal I visited it a few times too. I have mixed feelings about it.

I think the court is useful in establishing facts. Nowadays nobody denies that thousands were killed in Srebrenica for example - as many did in the years immediately after 1995. At least in the future we won't have discussions like Jasenovac where the estimates of the death count vary between a few thousand and some 750,000.

But the court has been much less successful in the "why" question. It didn't help of course that the only theory they pursued was the "Great Serbia" theory. They could do more to establish what went along on the lines of military hierarchy on all sides.

If you believe that Croatia and Bosnia wanted to drive out their Serbs than those Serbs were justified to wage war against that. Even if they did horrible things that doesn't make the war on itself illegal. I think that ICTY can only give us a very small glimpse of what was discussed in Belgrade, Zagreb, Sarajevo and Pale. It may take decades - if ever - before we know what really happened. Until that time the nations of former Yugoslavia will have to live with the fact that they disagree on what happened.

In Bosnia great efforts have been made to establish an accurate death count. I would have loved it if such an effort had been broadened to a kind of truth commission that publishes every year a handsome book (800 pages max) with an overview of what has been found out about the wars. It should use the material of the ICTY as a basis but should also be able to interogate people.

Another problem is the international community. They played a role from the very beginning. But it is very secretive about its own role: what considerations lead to the recognition of Slovenia and Croatia? Who initiated it? What about American and other foreign military support for Croatia and Bosnia? These questions need to be answered too. Unfortunately the United States demands very often secrecy when one of its officials have to testify.



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