Devolving War Crimes Justice

The debate on war crimes in almost every country of the former Yugoslavia is not subsiding. It is alive and present in daily life and the media: who is most responsible; whose sufferings were the greatest? As the German philosopher Karl Jaspers (1883-1969) said, “Suffering differs in kind and most people have sense only for their kind. Everyone tends to interpret great losses and trials as a sacrifice. But the possible interpretations of this sacrifice are so abysmally different that, at first, they divide people.”

It is no easy task to investigate and prosecute those responsible for war crimes when views are so divided, and with such a lack of trust among neighbours. And I wonder, is it easier for local courts to deal with tribunal cases, or to launch their own war crimes cases? Why do politicians and the public often demand domestic trials instead of trials in The Hague? Why is it better for Serbs to be tried in Serbian courts and Croats to be tried in Croatian courts? What kind of fair trial can be expected when the same people who demand local trials for the accused stress that these accused people are innocent?

Transparent trials are one solution. It is a common understanding that the most authoritative rendering of the truth is possible only as a result of judicial inquiry, and that major prosecutions can generate a comprehensive record of past violations. Truth is constituted by multiple facts and perspectives, each of which is vulnerable to distortion, denial, rationalisation, and refutation. How often we see this in the former Yugoslavia, where nine years after Dayton, people cannot agree on the basic facts, and politicians still argue about every aspect of the former Yugoslavia and the armed conflicts that led to its dissolution.

The other aspect of this point is that almost everybody is concerned only about those who are suspected or accused. Few speak about the victims and their right to justice and a fair trial. Parliaments even adopt laws concerning the interests of the accused - I haven’t heard about any such regulations and laws about victims and their rights.

Turning to the challenges facing the domestic courts when it comes to the legacy of the ICTY and local war crimes prosecutions, these are multiple and of the same nature as for us in the tribunal. They are both legal and political. Leaving aside the latter, it is unquestionable that the tribunal has amassed enormous experience and evidence in the last 11 years. This ought to be used by the domestic courts to maximum extent.

The wealth of the ICTY evidence includes judgements and motions, documents, exhibits, witness statements, videos and transcripts of the trials. Apart from the judicial record, the Office of the Prosecutor possesses more than 4.5 million pages of documents, more than 12,000 hours of video/audio records, hundreds of maps and other items. Not all the ICTY collection was used in trials so far, and parts probably will never be used due to the lack of time. The question is how to make it possible for the domestic courts to use this material. We are willing to share everything we can already now, on proper judicial request, subject to understandable restrictions.

It is no secret that hundreds, even thousands of perpetrators of serious war crimes have not even been charged. They are often seen by their victims in the street, still holding important positions. My office intends to transfer to the domestic courts dossiers of unfinished investigations and investigative materials. It will then be up to the domestic judicial and prosecutorial authorities to act on these cases. This will start happening next year and will represent a serious test for the maturity of the domestic courts.

The domestic courts must not act only upon the ICTY cases. They were always expected to launch their own cases, though all the indications show that for different reasons it has not happened. For example, in Bosnia and Herzegovina, criminal files have been submitted to my office for review against some 5,908 persons but only around 90 persons have been brought before the courts. In Croatia the process of reviewing hundreds of cases tried in absentia is still underway and many of these cases are being dismissed for lack of evidence. Serbia and Montenegro is just beginning the process which has to bring those responsible for atrocities elsewhere to justice.

Domestic prosecutions for war crimes will face the problem of suspects hiding in “friendly” states, or being protected by interest groups. Regional cooperation and a clear political will by the authorities is the only remedy for this challenge. Recent initiatives in the field of regional cooperation concerning war crimes, with support of the OSCE, UNDP, ICTY and others, are most welcome.

Although international criminal trials are laudable, as they assign accountability for mass atrocities to individuals at the high level, they have limitations. Their focus leaves several categories untouched – such as lower-level perpetrators. These include community members, outsiders who may have contributed to the outbreak of violence, and “bystanders” who did not participate in crimes but did not intervene to stop them, either. In terms of law, criminal responsibility is individual. But in terms of justice and reconciliation, the complicity of those who stood by or cheered a vicious leader, or who elected a war criminal to represent them, cannot be omitted. This could be much better dealt with by the relevant countries themselves.

The countries of the former Yugoslavia all have reasons to embrace the tribunal as their own court, which it is. They should look to the ICTY as an aid in shedding any feeling of collective responsibility by their nations, and as a source of jurisprudence, evidence and practice. They have an interest in the optimal functioning of the tribunal because they cannot yet prosecute those most responsible for the crimes and devastation of the past decade.

Justice calls for perpetrators to answer for their crimes in a court of law. At the same time, different societies have different understandings about law and expectations of justice. There is little understanding in the former Yugoslavia of the concept of command responsibility. Only the responsibility of direct perpetrators is accepted there (for decades leaders were regarded as untouchable, for example). That is why there is a need to learn from the experience of the international court.

Let me illustrate what I said so far by an example from the Croatian media, which speaks for itself. Soon after announcement about the indictment against General Mirko Norac, a Zagreb daily, Jutarnji list, sent a reporter to the seat of the crime for which he is accused - the villages in the Medak Pocket of Citluk, Pocitelj, Ornica and Divoselo. The intention was to ask inhabitants what they thought of the Norac indictment. The task was impossible as the three locals interviewed had returned in the last decade, and lived in isolation without electricity and were unaware of yesterday’s headlines. The reporter said the three returnees lived like animals amongst torched and razed houses, surrounded by mines. One returnee commented that he did not know if Norac was to blame for these crimes, adding that the war policy of both sides was to destroy and torch as much as possible. “The war shouldn't have happened,” he said.

This short story tells me a lot about victims and command responsibility. To put it bluntly, rather than in legal terms, I do not care who the aggressors or defenders were, nor do I care about big words used by either side to justify their “truth”. I care about the victims of these conflicts and their right to justice and I appeal to my colleagues prosecutors to be on the same side.

Let me also recall the words of a Danish physicist, the Nobel prize winner, Niels Bohr, “The opposite of a profound truth may well be another profound truth.”

To conclude, the time of uncertainty and the unbearable pressure of new indictments have gone. But this must not be the end of the story. Impunity should not be tolerated and this is our moral and professional obligation as lawyers. Using the words of another Nobel laureate, the Russian writer Solzhenitsyn, “When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice from beneath new generations.”

While we concentrate on the closure of the tribunal and our completion strategy, local prosecutors and judges have to focus on building up their capacity for domestic war crimes prosecutions. Apart from changes in legislation, such as improvements to their legal procedure, additional areas are essential for their success if the task is to be taken seriously. I refer here again to regional cooperation between Croatia, Bosnia, Serbia and Montenegro in regard to war crimes (exchange of information, legal assistance and extraditions) and the issue of protection of witnesses.

I subscribe fully to the statement issued after the recent seminar in Dubrovnik on the issue of regional cooperation on war crimes, “Where war crimes are concerned, there can be no middle ground. Impunity thrives on political impotence and moral ambivalence. It is a black and white issue: either we repudiate war crimes and prosecute the perpetrators, or future generations will judge us to have been accomplices by acquiescence.”

We in the ICTY, especially in the Office of the Prosecutor, are used to criticism. We have no immunity in this regard. We have not much time left, and I think that when the tribunal is finally closed, the public, especially the media, will miss it. Just imagine - media in Belgrade, Zagreb and Sarajevo without sensations and speculation about ICTY? I appeal to colleagues prosecutors, do not disappoint your media, otherwise they will run out of subjects!

Jokes aside, remember that war crimes do not expire with time: They are, and will always remain, war crimes - especially for the victims and their families.

This is an edited version of a speech delivered by ICTY chief prosecutor Carle del Ponte in Belgrade at an international conference on Octeober 1-2, organised by the Humanitarian Law Centre in cooperation with the Council of Europe.