Today’s war-crimes tribunals have more modest aims than in the past
The case against Mr Mladic brings to an end the trials of the important figures indicted by the tribunal. (Appeals are being dealt with by another body.) In the Balkans, there is widespread disappointment at the role it has played. Meanwhile, as one tribunal shuts down, a new one for Kosovo was launched in the Netherlands on January 1st. Later this year it should begin issuing indictments for Kosovars accused of crimes committed between 1998 and 2000.
Created in 1993 by the UN Security Council, the Yugoslavia tribunal ultimately indicted 161 people and sentenced 83 of them. “Its greatest success,” says Eric Gordy, the author of a book on war crimes in the Balkans, “is that it did anything at all.” Judge Carmel Agius, the president of the tribunal, admits it has been “a troubled journey” but is proud of its achievements.
The tribunal’s biggest failure was its inability to convince people in the former Yugoslavia that it was impartial. Many in the region saw it as a foreign imposition. It was created by outsiders at a moment when the world had the will to demand justice for war crimes wherever they were committed. But trials have dragged on for years, and judges and lawyers are paid handsomely. People in the former Yugoslavia, Mr Agius says, suffer from a habit of “blaming foreigners or someone else” for their disappointments. But, he says, “not a single mass grave would have been excavated” if the tribunal had not existed.
Mirko Klarin, a journalist who urged the court’s creation in an article in 1991, says one success was expanding the definition of war crimes. Yet this, he thinks, may have been the court’s downfall. Starting in 2012, several acquittals called into question the court’s “command responsibility” precedents, which held leaders culpable for war crimes committed in operations they had ordered but not directly led. Many observers believed that powerful Western countries worried that such standards might be applied to their own armed forces or politicians, and used their influence to turn the tide.
The suspicion that war-crimes tribunals are an alien imposition also afflicts the new Kosovo court. In fact the court is not a UN body. It is a tribunal set up under Kosovo law, with foreign judges, funded mostly by the EU and in response to allegations made in a Council of Europe report in 2011. (One was that several prisoners held by what was then the Kosovo Liberation Army were murdered for their organs.) Florina Duli, who runs the Kosovar Stability Initiative, a think-tank, says many of her compatriots are convinced that the new tribunal is a tool of “big countries and the European Union”. They think the threat of indictments will be used to blackmail Kosovar leaders to do what the Europeans want, such as keeping the EU-sponsored dialogue with Serbia going.
David Schwendiman, the prosecutor, concedes that the aims of the new tribunal are more modest than in decades past. His work may not deter fighters from committing crimes in Syria. Still, he sees a duty to build a body of law with which to try such criminals when the political will to do so returns. In the meantime, the tribunals “[help] people learn what happened, but not be consumed by it.” As an effort to record history, the Yugoslavia tribunal with its archive of millions of pages is an undisputed success. That, and the convictions it has achieved, says Mr Gordy, are “definitely better than nothing—and most conflicts get nothing.”