My posting on the film Storm and its setting – the International Criminal Tribunal for the former Yugoslavia (ICTY) – quoted two lines from the movie:

Two powerful lines from the film stand out:

  • "What are these trials for?"
  • "This (ie ICTY) is not therapy…"

Some thoughts.

What is ICTY’s mandate and jurisdiction? Thus:

The mandate of the Tribunal is to bring to justice those responsible for serious violations of international humanitarian law committed in the former Yugoslavia since 1991 and thus contribute to the restoration and maintenance of peace in the region.

… It has jurisdiction over individual persons and not organisations, political parties, army units, administrative entities or other legal subjects.

Although the ICTY and national courts have concurrent jurisdiction over serious violations of international humanitarian law committed in the former Yugoslavia, the ICTY can claim primacy and may take over national investigations and proceedings at any stage if this proves to be in the interest of international justice. It can also refer its cases to competent national authorities in the former Yugoslavia.

The Tribunal has authority to prosecute and try individuals on four categories of offences: grave breaches of the 1949 Geneva conventions, violations of the laws or customs of war, genocide and crimes against humanity.

The ICTY has no authority to prosecute states for aggression or crimes against peace; these crimes are within the jurisdiction of The International Court of Justice.

Key point: ICTY focuses only on ‘bringing to justice’ individuals charged with specific war crimes or crimes against humanity. It is not there to give victims of such crimes any special satisfaction (‘therapy’). In fact they may well be very dissatisfied at seeing the elaborate efforts made to ensure that people accused by ICTY get a fair trial. And the cost of the whole business.

Since it was set up in 1993, the cost of ICTY has soared beyond anything the UN (and the nations who foot the ICTY bill) expected.

The early years were cheap – very few defendants. But then it started to get expensive, jumping from $25m per year in 1995 to $96m in 2001, then steadily up and up towards the $150m or so for 2010.

That’s $3 million a week, going to heavy legal fees, registry work, translation work, witness protection, judges and the rest. Accused persons (ie their lawyers) get legal aid.

161 people have been indicted, at a cost (if my maths are right) of some $12 million per indictee.

In short, a lot of people are getting very wealthy on tax-free payments and allowances, poring over the misery of impoverished Yugoslavs.

Why was it done this way? Above all, why are the trials so slow?

Answer: in good part to avoid a repeat of the Nazi war crimes trials across Europe following WW2.

We tend to remember the supreme trial of the Nazi leadership at Nuremburg, culminating in the death sentences passed on Göring, Streicher, von Ribbentrop and others.

But most people have forgotten (if they ever knew) that there were many other war crimes trials in Europe and the Far East, often conducted at high speed and with scores of executions resulting.

See for example the Mauthausen-Gusen trials: 69 former Nazi officials, most sentenced to death and promptly executed in hearings lasting only a few weeks.

Or the Auschwitz Trial of 1947, which lasted four weeks and ended with 23 death sentences.

And a lot more.

Basically, the Allies handed out very rough justice in a very short time, to the point of attracting sharp criticism from some senior jurists and politicians back home.

Plus, of course, the whole war crimes process was skewed by the fact that countless Soviet war crimes could not be examined, most notably Katyn. The Perfect Crime.

ICTY was designed to be Different. To be carried out to the best standards of procedural and substantive fairness and meticulous records kept, so that decades from now people could understand why it was done that way and agree that, yes, the process for all its difficulties had been legitimate.

Enter furious complaints, to the effect that the process has been skewed from the start "against the Serbs". Look at the procession of Serbian political and military leaders who have gone to ICTY. Why were Bosniac leader Izetbegovic and Croatia leader Tudjman not indicted, when their responsibility along with Milosevic for the start of the conflict and its subsequent conduct was so obvious? KLA atrocities in Kosovo? Scarcely touched.

Searching ICTY investigations of both Tudjman and Izetbegovic were in fact conducted. Did the Tribunal under various political pressures delay issuing indictments against them, knowing that they were both ailing – thereby allowing them to die without that formal stain on their name?

I do not know, but I suspect (a) that there is a case to answer there, and (b) that it will never be answered to anyone’s satisfaction.

That said, Serbia can not have it both ways. As much the largest of the former Yugoslav republics it just failed for year after year to give intelligent reasonable leadership as Titoist Yugoslavia dis-integrated, relying instead on brute force and inat.

Those Serbs indicted by ICTY did each play leading parts in appalling events of different shapes and sizes. But not all senior Serbs were guilty. Look at Milan Milutinovic, President of Serbia during key episodes of the Kosovo conflict, acquitted by ICTY on all charges. ICTY has not erred in convicting many different senior Serbs whose behaviour and policies did verge far into the criminal, at huge cost to others.

* * * * *

In any case, ICTY is by no means the whole story. To deal with ‘lesser’ war crimes special courts have been set up in Serbia, Croatia and Bosnia.  

These important processes and the steady cooperation between the different courts are scarcely acknowledged elsewhere in Europe. As HM Ambassador in Belgrade I briefly hosted a Kosovo family who had come to Belgrade to give evidence in one such trial. They said that they had been treated correctly by the Serbia authorities.

Here is the impressive list of war crimes trials in Belgrade. And a Wikipedia entry on the Court of Bosnia and Herzegovina.

The core problem with these trials is that they appear to proceed in a sort of local moral and political limbo. Each community concerned likes to see a conviction of someone from another community who brutalised their fellow ethnic cousins. But they hate it when ‘their’ court is expected to put on trial one of ‘their’ people, and hate it even more when a court elsewhere in the region looks to go lightly on someone from ‘its’ community.

And above all they suspect that local courts pull their punches in looking at ‘their’ war crimes suspects? Why, cry Serbs, has the Bosnian legal system for nearly 20 years done next to nothing about the 1992 Dobrovoljacka St killings?

In short, the outcomes you like are obviously fair, those you dislike are blatantly and appallingly unfair – and show that (unlike you) the ‘others’ can’t be trusted to look objectively at these sensitive issues. 

The harsh reality is that every community in former Yugoslavia sees itself as a Victim of something or other. And a central part of being a Victim is that you never get Justice.

Those local politicians who know that this is a hopeless way to think face an uphill task – where are the votes in saying so?

Not to mention the awkward fact that (as an Amnesty woman at the Storm screening rightly pointed out) other European countries have shown themselves unwilling to respect warrants issued from Belgrade to arrest people indicted in Serbia on war crimes charges, the UK setting an important (and she said welcome) precedent in arresting Ejup Ganic.

There is an important policy issue here. It makes no sense for EU member states to insist that the region take ownership of war crimes issues and run these trials to high international standards, and then not respect what look like serious local efforts to achieve that.

That said, Serbs and Bosniacs alike will all be suspecting that Belgrade’s decision to press London for Ganic’s extradition was in one way or the other politically motivated (see eg tendentious state TV reporting in Belgrade).

The difference is only that most Serbs are quietly cheering, whereas most Bosniacs think it is just more of the same old Karadzic/Milosevic scheming to delegitimise Bosniac resistance and thereby Bosniacs per se. 

All of which and much more combines to ensure that these difficult trials seem to achieve no real higher status in achieving either justice or ‘closure’ for the region as a whole, even if a small but growing number of war crimes victims do get the belated satisfaction of seeing war crimes perpetrators being sent to prison.

The Conclusion?

Only that great crimes do deserve great punishment. But delivering that punishment in an effective way is far from easy.

Maybe, after all, there was wisdom in ruthlessly executing after WW2 many Nazis believed to have done or led or ordered unspeakable things.

That sort of thing is cruel. But not necessarily unjust in the greater scheme of things. Above all it signals the symbolic end of something bad – and so opens options for a New Start under new rules. 

Has ICTY in its laborious and stunningly expensive way created a New Start and helped end the Sakic-Milosevic Syndrome across this troubled region?

We’ll know how things are trending in, say, 100 years’ time.

Until then, the jury’s out.