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Comment: Jury Still Out on Hague

A decade after its creation, have expectations of the tribunal been realised?
By Chris Stephen

Ten years ago this week the Hague tribunal opened its doors for business - and the anniversary has arrived with nobody sure whether this great experiment is working or failing.

A string of controversies involving judges and prosecutors has rocked the court in recent weeks, at a time, to be fair, when it has been processing a record number of cases.

One of the more recent involved Judge Patrick Robinson at the sentencing of Predrag Banovic, a Bosnian Serb who admitted beating five Muslims to death at the Keraterm prison camp.

The prosecutors, defence, and two of the three judges felt eight years was a sufficient sentence, but Robinson spoke out, with a one paragraph dissenting opinion that said, "I hold that the criminality of the accused, involving as it does, five murders resulting from his participation in the beating of five persons…warrants a longer term of imprisonment than eight years."

The suspicion in this case is that the judges passed the sentence to encourage more defendants to plead guilty.

Then there was the decision of chief prosecutor Carla Del Ponte to declare that she was investigating the late Bosnian president Alija Izetbegovic for war crimes. She made the declaration as Sarajevans buried their former leader.

Del Ponte has also appeared to break with her declared policy of charging only top commanders. She recently indicted two Kosovo Albanian camp guards, opening the prosecutor to criticism that they were charged simply because of a need to indict some Albanians to show balance - so far most Kosovo indictees are Serbs.

And the prosecution is also facing criticism over plea bargains. More and more of these are being made to encourage defendants to admit their crimes, saving the cost in time and money of holding a trial.

Some are worried that the disparity between sentences an accused can get if he pleads guilty and not guilty are now so huge that many will be tempted to plead the former even if they believe themselves innocent.

Already one defendant, Momir Nikolic, has made up evidence given to prosecutors during his plea bargaining, and there are fears that others will be tempted to embellish their evidence in the hope of getting such deals.

The backdrop to all of this is the Security Council, whose members, led by the United States, are increasingly anxious to see the war crimes court finish its business.

There is anxiety among council members that the Hague is likely to breach its 2010 closure deadline, set only last August. And there are rumours the UN body may in the coming weeks forbid prosecutors from launching any further prosecutions.

And then there is the Milosevic trial: this case goes on and on, and is now down to a three-day week because of the former Serbian president's bad health.

Prosecutors have only themselves to blame, for insisting that the trial take in not just offences in the Kosovo war, but those of the Bosnian and Croatian wars too. The result is a mammoth charge sheet, which will drag on for at least two more years, not counting appeals.

Many will wonder why the Kosovo case, which appears the strongest, was not done separately, to get it out of the way ahead of the defendant's failing health. They could always have finished the Kosovo case, got a verdict, then tackled the Bosnia and Croatia charges later.

Should Milosevic's condition worsen to the point where the trial is suspended or stopped, there will be red faces in the prosecution department.

These are serious matters - all the more so because of the effect they are having on Balkan audiences.

The Serbs remain stubbornly opposed to the court, the Croats highly sceptical, while even the Kosovo Albanians and Bosnian Muslims, erstwhile supporters, are confused about the recent controversies.

But optimists have a different view: while serious, they say, these incidents are no more than the "radar clutter" that any justice system throws up.

Controversial verdicts and dissenting judges are not new, and, optimists say, they show the strength, not weakness, of the Hague's system, in the same way as a few acquittals look better, on the record, than a 100 per cent conviction rate.

And behind these controversies is a court operating at full speed: there are now a record number of cases before the tribunal, and for every disputed sentence, there are half a dozen more where justice is seen to be done.

Men - almost all defendants are men - have had their crimes exposed and long jail sentences handed down, for offences that in previous wars around the globe have gone unpunished. The Hague system is not perfect but, say supporters, it has been shown to work.

Anniversaries are always a good time to take stock, but the maddening thing with this tribunal is that a decade of operations is too soon.

For a start, although the Hague began work ten years ago, it did not even get a prosecutor until the following year, and did not deliver a verdict until 1996 - three years later and a year after the Bosnian war was over.

The truth is that the jury is still out on whether this greatest ever experiment in global justice has worked or not. And it may remain out for some time.

Chris Stephen is IWPR project manager in The Hague.

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