Wednesday, 12/8/2020 | 5:46 UTC+0
Libyan Newswire

Hague Tribunal offers lessons in the power and the limits of war crimes justice

The Hague Tribunal, the first UN war crimes court, closes its doors at the end of December after quarter of a century in operation, but there are doubts about the future of international war crimes justice.

Wars continue to rage around the world and the tribunal’s successor, the International Criminal Court, also in The Hague, is floundering, having convicted just four war criminals in 15 years. The age of impunity envisaged by the Hague Tribunal’s founders remains a long way off.

The Hague Tribunal, officially named the International Criminal Tribunal for the Former Yugoslavia, and sister courts around the world notched up a long list of credits. Presidents, generals, and warlords were punished for the horrors of ethnic cleansing in Bosnia, genocide in Rwanda, and conflict-diamond wars in Sierra Leone.

The tribunal saw unwelcome publicity earlier this month when Bosnian Croat general Slobodan Praljak swallowed poison and died in the dock after hearing his 20-year sentence confirmed. But the suicide also underlined the success of the tribunal. It indicted 161 individuals, many responsible for a catalogue of horrors in the wars of Bosnia, Croatia,  and Kosovo. Everyone on the list was tried other than those who died before they could face justice.

Not the least of the court’s achievements was to find a way of making workable laws from the texts of the Hague, Geneva, and genocide conventions, so-called “black letter” law.

“The ICTY turned ‘black letter’ law into reality; it breathed life into those conventions,” says Rod Dixon, who worked as both prosecutor and a defence attorney at the tribunal. ”People don’t realise how much progress has been made in being able to generate these cases.”

The tribunal also gave victims of war crimes a voice: “It changed the way we look at victims. In previous wars, not only in the Balkans but all over the world, victims were just numbers,” said a Croatian government official, anonymous because she is not authorised to comment. “With the Hague Tribunal trials, victims were given a face. And not just a face, but also justice. Politically, it eradicated the bad seed of the worst war criminals.”

For investigations into the Srebrenica massacre, the worst war crime in Europe since World War Two, bodies of 8,000 Muslim men and boys were exhumed and a huge DNA data base created to identify them. Prosecutors devised ingenious ways of proving culpability of units in the massacre, including using records showing petrol requisitions for the forces involved in the Srebrenica killings.

But while the tribunal has bequeathed the world a powerful justice mechanism, the International Criminal Court, which is supposed to follow in its foot steps, has yet to make much impact. Unlike the Hague Tribunal, the ICC is not tied to the UN. It can normally investigate cases only among its 123 member states and, unsurprisingly, many states where the worst war crimes occur do not join the court.

The only way for the ICC to investigate a non-member state is if the UN Security Council orders such an investigation. The UN has done so twice, with Sudan and Libya, but has refused similar investigations for Syria, Iraq, or Yemen, leaving the ICC powerless.

“Without accountability, we are letting these crimes continue,” says Syrian rights activist Mazen Darkish in a recent Human Rights Watch documentary. “We send the perpetrators a message that they can keep committing crimes every day.”

Even in the cases of Sudan and Libya, little has been achieved. The ICC was authorised to investigate Sudan in 2005 and Libya in 2011, but has yet to hold a single trial. Sudan’s president, Omar al-Bashir, is charged with genocide in connection to the slaughter of up to 300,000 people in Darfur, but remains a free man. UN member states are obliged to arrest him if he enters their territory, but recent years have seen him welcomed as a guest by Jordan, Morocco, Russia, and South Africa.

“There can be no justification for states parties to fail to arrest a suspect against whom an ICC warrant of arrest has been issued,” ICC chief prosecutor Fatou Bensouda told the UN Security Council on 12 December. “This costly inaction has the potential to undermine the fight against impunity.”

Lack of political support is one reason why the ICC has jailed just four people since opening in 2002. Last year the African Union recommended that member states quit the ICC, accusing it of bias against Africa, where 10 of its 11 active cases are operating.

Eric Gordy, a sociologist at University College London’s School of Slavonic and East European Studies says political backing is crucial for the ICC to work. “Whether law is enforced depends on political will. The powerful countries have to be willing to see law enforced against them.”

Some also accuse the ICC of being inefficient. “The ICC is very far from where we want to be. They made a very poor start; there are very few trials,” says Dutch lawyer Caroline Buisman, who worked for the Hague and Rwanda tribunals, and now defends cases at the ICC.

“The mentality in the ICC is different from the Hague Tribunal; it is less dynamic and more bureaucratic,” she said. “The main problem with the ICC is they spend a lot of time and money on extraneous things, too much on outreach.”

The mantra of human rights lawyers is that there is “no peace without justice”, and not just because of the desire for war criminals to be punished for their crimes. Without rule of law, states have little hope of breaking the cycle of violence.

But the ICC is not the only legacy of the Hague Tribunal. Many individual states now operate “universal jurisdiction” laws, allowing them to prosecute war criminals without the need for an international court. The problem here is that the war crimes suspect needs to arrive on their territory for the case to happen. Nevertheless, such cases are underway involving Syrian defendants arrested in Belgium, Germany, and Sweden.

“While other avenues (for war crimes trials in Syria and Iraq) are blocked, criminal cases in Europe offer a small opening for some measure of justice,” says Human Rights Watch official Balkees Jarrah.

Perhaps the biggest legacy left by the Hague Tribunal is that war crimes justice is now part of the global furniture. “As a result of the Hague Tribunal, there is now the expectation that when conflict breaks out anywhere in the world, war crimes justice will be at least considered,” said Dixon. “In places like Syria and Yemen they’ve set up institutions to collect and preserve evidence of war crimes; that is a direct result of the breakthrough of the Hague and Rwanda courts.”

Another result of what was achieved in the Hague is that many nations suffering war have set up their own courts. Trials by government courts continue in Bosnia, Croatia, and Serbia. On 13 December, a mobile court in the Democratic Republic of Congo, set up in the village of Kavumu but utilising laws and precedents first established by the Hague Tribunal, jailed 11 militiamen for life for the rape of 37 women and girls. International justice has far to go, but the work goes on.

(TOP PHOTO: The first session of the ICTY held in Nov 1993. CREDIT: UN International Criminal Tribunal for the former Yugoslavia)