The trials of the Tribunal
I spent a couple of hours yesterday observing the trial of Bosnian Serb Republic army chief Ratko Mladic at the International Criminal Tribunal for the former Yugoslavia (ICTY). I did not come away cheered.
The trial itself was a desultory affair. A witness for the defense–who I gather was a “home guard” reservist type–was doggedly telling the court that the people he was guarding “dusk to dawn” without a break in Foca in April 1992 were held for their own protection. They could leave whenever they liked, NATO bombing had destroyed the town’s mosques (or maybe they had been fired on previously because Muslims had fired from them), “loyal” Muslims had fought with the Bosnian Serbs, the authorities of the Bosnian Serb municipality were democratically chosen…. I can only imagine what someone held in this supposedly voluntary detention in Foca in 1992 would like to do to the “soldier” recounting this litany of half truths and bold, well-rehearsed lies.
Mladic sat calmly, listening intently and occasionally trying to communicate with his defense counsel, who seemed far more seasoned than the younger and sometimes confused prosecutor. I am told Mladic feels he is innocent of any wrongdoing whatsoever. He merely did what he had to do to protect Serbs.
Two of the three judges were openly skeptical of the testimony, asking their own probing questions. A good deal of time and effort went into establishing mundane facts: which mosques had been destroyed when, who had done it, whether a document originated with the Bosnian Serb army or was issued by another organization (and whether the prosecution or the defense would carry the burden of proof on that question).
The bigger issues of the Bosnian Serb Republic’s war aims, its techniques for achieving them and its subservience to the Yugoslav army command were nowhere to be heard in my short sampling of Tribunal proceedings. I imagine you could attend for many days without hearing much about those important issues.
I’ve never been an enthusiast for the Tribunal. Nor have I been one of its critics. It was one of the things done during the Bosnian war that was supposed make people behave better, for fear of being held accountable. There isn’t much evidence I know of that Milosevic, Mladic or any of the other eventual indictees paid it any heed while they were in powerful positions. Nor do most Bosnians today think it has done much for reconciliation, especially in the Serb Republic entity of that unhappy country.
The costs have been hefty: over $1.2 billion by 2007 and hundreds of millions since. You don’t want to calculate how much that is per conviction, but it is still small beans compared to the $25 billion and more eventually spent on Balkans military intervention.
The initial years of the Tribunal, when it indicted small fry because evidence against bigger fish was hard to come by, were turbulent, as it established its authority and procedures. More recent years have also been controversial, as a new president of the Tribunal has backpedaled on standards of proof and other procedures set before he arrived. The result has been a series of controversial acquittals, as the threshold for demonstrating guilt has risen significantly.
The sad fact is that there has been little reason to applaud the Tribunal, even if you think (as I do) that things would be worse without it. I don’t believe for a moment that Serbia would have been able or willing to try Slobodan Milosevic in Belgrade, or that the proceedings would have been fair. And attempting such a trial would have profoundly distorted Serbian politics, hindering the democratic transition that Serbia has managed, one way and another. Whether the decisions have been acquittals or convictions, ICTY has managed to produce a massive documentary record of the crimes committed during the several Balkans wars, a record that in the end may be its most lasting legacy.
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The two main problems in my view were:
Firstly the disparity between defence and prosecution resources/payments. The prosecution had suites of offices, investigators etc, whereas all the defence teams shared the same large office and one photocopier. It said something, and it wasn’t “equal access to justice”.
however, the main problem was the desire of the court leaders to prove that all were equally responsible, by prosecuting both or all sides. As the CIA are alleged to have observed, whilst all sides committed atrocities, the Serbs committed 90% of them. ICTY prosecuted Naser Oric (the Bosnian local commander) before the Serb Commanders at Sebrenica – Oric was found not guilty on appeal. There were numerous similar examples, both over Ahmici, and Kosovo.