Analysis: Setting the Hague Record Straight

Tuesday, 22 February, 2005

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Chris Stephen

A war crimes official in New York last week repeated a common complaint, "There are valid criticisms of the war crimes process, but they've never the ones the press pick up on."

With newly-indicted Serbian politician Vojislav Seselj the latest to accuse the tribunal of bias, I thought it was worth taking a look at the commonly asked questions about the court - the ones you should ask, and the ones that are a waste of time.

DON'T question The Hague's legitimacy. It was set up by the United Nations Security Council. Yugoslavia and its successor states were all members of the UN, which means accepting all - not some - of the UN rules. Some law professors do argue that the council has no power to set up such a court. Its rules do not mention that it has the authority to do so. Equally, though, they do not say it can't.

DON'T suggest The Hague tribunal is a NATO court. Three of the five permanent members of the Security Council - America Britain and France - took the lead role in setting up the court. A few years later, planes from all three nations were busy bombing Belgrade. This has led to allegations that the court is biased. In fact, it is a separate entity from the Security Council. The council set the court up, but it is independent.

DON'T argue that the UN tribunals are selective in their jurisdiction. Firstly, it is not the fault of the tribunals that they have been told to look at crimes only in former Yugoslavia and Rwanda. The decision was made by the Security Council. Second, the reason the tribunals look only at these nations is because the normal justice systems broke down. Hence the need for special UN courts.

DON'T point out that the full UN General Assembly never approved the tribunal. This is true, but pointless. The assembly did not vote on the creation of the tribunals, but it did not have to. It votes each year on the budget and also decides the judges. If it objected to the court it could refuse to give it a budget.

DO ask why similar sounding crimes often lead to different sentences in different cases. Why, for instance, General Krstic got 46 years - the longest-ever Hague sentence? Was it the desire to go one better than the judges who, a year before, had given another defendant, Tihomir Blaskic, 45 years?

DO inquire why The Hague has no independent monitoring agency. In theory, the Security Council monitors its progress. In practice, it is too busy. The Hague looks after itself. However, its appeals judges are separate from its trial judges and have a good record. Also, the UN does have tough monitoring on matters such as accounting. The Hague has a good record for this, yet some say a truly independent agency is needed.

DO raise the length and cost of trials. The very first case - that of Dusko Tadic - began with his arrest in 1995 and was still going in 2001. Legal bills for both prosecution and defence are huge and rising - Momcilo Krajisnik's pre-trial defence bill is in excess of 800,000 US dollars. Some defendants spend more than two years in jail simply waiting for their trial to begin. None of this is the fault of the court or the lawyers - critics instead blame the system itself. Is it too cumbersome, or is this simply the only way of dealing with such complex and difficult crimes?

DO contend that the tribunal is a political rather than judicial body. This is not true in the formal sense: all its decisions are judicial - they have to be, because they are made publicly and they are open to scrutiny.

However, the prosecution does face unusual pressures. They consider that they need to aim not just for a conviction, but also to ensure there is a full historical record of the crimes that went on. Critics say they should stick to a narrow role of trying to catch, and jail, war criminals. Supporters say the court must provide a historical record to prevent such crimes happening again.

Chris Stephen is IWPR's bureau chief in The Hague.