Hague Prosecutors Rest Their Case

Wednesday, 9 November, 2005

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Ana Uzelac

The Hague tribunal's chief prosecutor Carla Del Ponte files her final indictments this week, marking a key juncture in the work of the prosecution which has been praised and criticised in almost equal measure.

Many tribunal observers have over the years frowned upon the Office of the Prosecutor's alleged susceptibility to political pressure, picked fault with the quality of its legal work and regularly accused it of ethnic bias.

But just as many have praised the OTP for its achievement in trying the first European war crimes suspects since the Nuremberg trials that followed the Second World War, and setting an important precedent for international justice.

All the prosecutors' investigations will cease on December 31 and, after the likely confirmation of some or all of the final six indictments in January, the OTP, will be unable to issue any new indictments.

The 500-strong office will instead focus on fighting the high-profile cases already in progress, and helping their colleagues in the former Yugoslavia take responsibility for the lower- and mid-ranking ones referred to local courts.

Such referrals are also a part of the completion strategy that foresees the court cutting down its caseload by dealing with only the most high-ranking accused. In this way, the tribunal is expected to complete all trials by 2008 and wind up two years later, after hearing the remaining appeals.

FRYING THE SMALL FISH

Since its inception in 1993, the OTP has issued 83 public indictments - 81 for war crimes and two for contempt of court. A further six are expected to be approved in the coming weeks. The number of indictments that remain sealed is unknown, but is believed to be fewer than ten.

The indictments cover 153 suspects, spanning crimes committed over nine years in three separate conflicts - Croatia (1991), Bosnia (1992-1995) and Kosovo (1998-1999).

Indictees range from lowly camp guards and petty criminals-turned-warlords, up to the highest-ranking army and police officers and the first sitting head of state to ever be prosecuted for war crimes - former Yugoslav president Slobodan Milosevic.

The indictments themselves have been criticised for alleged ethnic bias, legal vagueness, too-wide a scope and for the ever-changing nature of the charges.

As time passed, the low profile of many of the indictees was also criticised, with some observers pondering the wisdom of spending millions of US dollars to put prison guards on trial at the world's most expensive criminal court.

The fish the prosecutors chose to fry, they argued, were too small from the start.

Open Society Institute director Aryeh Neier, who was involved in the founding of the tribunal, told IWPR, "At the outset the prosecutors' office made a mistake in concentrating mainly on low-level perpetrators. The focus should have been on those with the highest levels of responsibility."

The first person to be tried at the tribunal was Dusko Tadic, from north-western Bosnia, who was convicted of committing rape and murder in detention camps in the early Nineties. Many of the indictments issued in the first years by then-chief prosecutor Richard Goldstone focused on camp commanders and guards such as Tadic.

While the charges in these indictments were serious, cases such as this pale when compared with those of high-level commanders who have since appeared in The Hague.

This has led many to speculate whether trying the likes of Tadic was actually fulfilling the UN court's mandate.

But in a recent interview with IWPR, Goldstone insisted that his office was unable to begin indicting the top officials in the mid-Nineties, a time when war was still raging in the Balkans and the majority of today's detainees were still in power.

"I would have loved nothing more than to have brought out high-level indictments earlier," Goldstone told IWPR.

"But we were busy arranging the very basics of our work - getting permission for investigators to travel to the region, getting access to witnesses and documents and lobbying the governments to make it legally possible for the investigators to work."

The prosecutors, Goldstone said, had to adopt the policy of issuing indictments against mid-level perpetrators in the hope that they would be able to build cases against the leaders later on.

"The witnesses available to us at the time only came into contact with those [mid-ranking] persons and obviously had no contact with the leaders." he said.

"There were no smoking guns at the time."

Benjamin Ferencz, who was the chief prosecutor in the Nuremberg trial of members of the Nazi regime's SS mobile murder squads, says the Hague tribunal has done well under trying circumstances.

"In Nuremberg I prosecuted 22 persons for murdering a million innocent people and rested my case in two days," he told IWPR. "We had all the documents available, as the Germans were very meticulous. We had access to everything there was."

But the early Hague prosecutors had no such help. At that stage, there was no court, no offices, no access to any documents and the war was still going on thousands of kilometres away. "They were starting literally from nothing but a UN Security Council resolution," he said.

By the end of his term in 1995, however, Goldstone seemed confident enough to issue two high-profile indictments, building elaborate circumstantial cases against the top Bosnian Serb political and military leaders, Radovan Karadzic and Ratko Mladic. The two were accused, among others, of genocide against the Bosnian Muslims.

When the Bosnian war ended in November 1995 with a peace accord signed in Dayton, Ohio, the prosecutors' new problem was the seeming impossibility of bringing indictees to The Hague.

International peacekeeping forces stationed in Bosnia initially shied away from arresting suspects, largely from fear of fracturing the fragile peace, and - many argued - fear for their own safety.

The local security structures in Serbia, Bosnia and Croatia were still in the hands of the very people they were suppose to be apprehending - which is largely still the case in Republika Srpska, RS.

The two Bosnian Serb leaders, Karadzic and Mladic, are still at large a decade after Goldstone issued the indictments against them, and are believed to enjoy the support of vast financial and security networks. (see: SFOR Indictee Arrest Record Mixed, TU No 384, 03-Dec-04)

The tenure of Canadian prosecutor Louise Arbour, who took over from Goldstone in 1996, was marked by an increase in the use of sealed indictments - the practice that caused the first wave of criticism from the OTP's peers.

The tribunal's then-president, Italian judge Antonio Cassese, admitted he was "very disturbed by the procedure" at the time and worried that the rights of the indictees could possibly be violated by the court. (see: Use and Abuse of Sealed Indictment, TU No 369, 30-Jul-04)

But the prosecutors decided to continue the practice, and made many new indictments public only after local peacekeepers were first given a chance to carry out an arrest.

The practice continues even now. The indictment against wartime Croatian Serb leader Goran Hadzic was only recently made public, as was that against Bosnian Croat Miroslav Bralo. The former absconded before the authorities were able to arrest him and remains at large, but the latter is now in tribunal custody.

The use of sealed indictments and the changing political climate in the wake of the Dayton peace agreement led to the first wave of low- and mid-ranking indictees being apprehended and arriving in The Hague.

But Arbour's top suspects were still in positions of power across the region.

At the end of Arbour's mandate, war broke out in Kosovo. The chief prosecutor - supported by both western diplomats and human rights groups - then indicted the biggest fish of all. Milosevic, then-Yugoslav president, was charged with crimes his troops committed in Kosovo in May 1999, after an intensive investigation, and while the NATO air strikes, that eventually ended the conflict, were still going on.

This was followed by more indictments against Serbian political leaders.

Two years later, Arbour's successor, Carla Del Ponte, issued two more indictments against Milosevic, accusing him of responsibility for crimes in Croatia and Bosnia.

So began the most productive but also the most controversial phase in the history of the tribunal prosecutors.

EXTENDING SCOPE OF INDICTMENTS

In her five years since taking over as chief prosecutor, Del Ponte has issued just over half of the total number of indictments, and revised most of those issued by her predecessors.

With her arrival, the investigations focused firmly on the top political leaders, and began to cover ever-longer time periods and even wider geographic scope - an ambitious attempt to show not a series of separate crimes but the complete political plan that allowed them to be committed.

The turning point was the issuing of two new indictments against Milosevic in the autumn of 2001 - for crimes he allegedly planned and committed during the wars in Bosnia and Croatia.

In what many saw as a bold legal move, Del Ponte introduced in these indictments the concept of a "joint criminal enterprise" implicating many Serbian, Bosnian Serb and Croatian Serb politicians.

She stated that "the purpose of this joint criminal enterprise was the forcible and permanent removal of the majority of non-Serbs" from large areas of Bosnia and Croatia "through the commission of crimes" - taking upon herself the task to prove that a decade of mainstream Serbian politics in the Balkans was criminal in nature.

A similar joint criminal enterprise was alleged in the case of an indictment that would de facto attempt to criminalise the policies that the Croatian authorities applied to Bosnia throughout the Nineties.

The indictment issued this year against six Bosnian Croat leaders alleged that they sought "to politically and militarily subjugate, permanently remove and ethnically cleanse Bosnian Muslims and other non-Croats" from the territories that were supposed to become "part of a 'Greater Croatia'" by criminal means. The indictments also named the late Croatian president Franjo Tudjman as a member of this joint criminal enterprise.

The prosecutors' attempts to offer a full historical record of the Balkan wars by writing and issuing such narrative indictments has caused controversy both in the legal community and among the public at large.

Efforts to paint such a broad picture has resulted in long and complex indictments which, when combined with cumbersome court procedures, can produce marathon trials whose length can sometimes bring their fairness into doubt.

This has led some human rights experts to question whether the OTP has been too ambitious.

Richard Dicker, head of Human Rights Watch's International Justice programme, thinks that lengthy and complicated indictments have shown the limitations of what a criminal trial can achieve.

"We know that we can't expect a criminal trial to depict the totality of crimes committed by the most senior accused during their years in power," he said.

But others argue that the ambition of the indictments and the development of legal concepts to support them may be the tribunal's biggest legacy.

Judith Armatta, a long-term observer of the Milosevic trial on behalf of the Coalition for International Justice, said, "The prosecutor developed a concept that can explain what happened in the highest echelons of political power - a totally different kind of responsibility from running prison camps or commanding concrete units that commit crimes.

"There is a specific kind of responsibility for deliberately conducting policies that one knows could or even must result in crimes at some point down the line, and the joint criminal enterprise concept formulates this."

Former chief prosecutor Goldstone believes the ambitious indictments will leave more than just expanded jurisprudence.

"The establishment of a full historical record of what happened in the former Yugoslavia - through hundreds of witnesses and meticulously prepared prosecution - will be remembered as the most important legacy of the prosecutors' work and the one that goes beyond mere criminal proceedings," he said.

Unsurprisingly, the prosecutors' ambitions and their legal concepts have encountered the greatest hostility from the Serbs - the nation with the vast majority of Hague indictees, and many of whose wartime leaders are implicated in such joint criminal enterprises.

According to the latest opinion poll conducted by the Belgrade-based Strategic Marketing Agency this summer, 32 per cent of Serbs think the tribunal's major goal is "to place all the blame for war suffering on Serbs".

One in four people polled explained that "the work of the Hague tribunal prosecutors" had made them form such opinions.

Belgrade-based Centre for Human Rights head Vojin Dimitrijevic, who helped formulate the questions for the poll, thinks the OTP's insistence on exploring political ideas such as Greater Serbia has been "one of the [office's] biggest mistakes".

Dimitrijevic told IWPR that such notions of state expansion have been shared by other nations in the region since the beginning of the 19th century and "is not an international crime in itself", so introducing it into an indictment is seen by many Serbs as an attempt to hold them collectively responsible for crimes committed by individuals.

However, in Bosnia, whose citizens were the prime victims of the crimes, prosecutors have been criticised for limiting the scope of their indictments.

Zdravko Grebo, professor of legal philosophy at the Sarajevo University, regrets the prosecution has not moved a step further and actually indicted the ideologists behind the policies that led to the crimes, including members of media and academia.

He points to the Rwanda war crimes tribunal's cases against radio journalists as an example of what more could have been achieved.

"People who inspired the crimes - those whose public warmongering in the early Nineties led every robber, rapist and killer to believe that they were actually correcting historical injustices against their respective nations - have been left untouched on all sides," he told IWPR.

"I find it the biggest single blemish on the prosecutors' work."

One other element of the OTP's work under Del Ponte has been a subject of similar controversy - the decision to start striking American-style plea agreements in order to cut down its workload and at the same time provide voluntary testimonies from the accused that could help implicate their superiors or simply provide an historical record of the crimes committed.

High-profile figures who have struck such deals include former Croatian Serb leader Milan Babic, top Bosnian Serb politician Biljana Plavsic and a number of mid-ranking Bosnian Serb military officers who participated in the Srebrenica massacre. Some among them got surprisingly low sentences - as low as 11 years in the case of Plavsic. The practice soon encountered a great deal of criticism from the war's victims and others.

"I was appalled by the idea [of plea agreements] the first time I heard it," said Grebo.

"It seemed monstrous. In a court dealing with 'normal crimes' one can get 30 or 35 years for a single count of murder, and in the Hague tribunal people who would plead guilty to mass executions were getting far less because they struck an agreement with the very people who were supposed to prosecute them."

Criticism has even come from the tribunal's own staff. The UN court's senior judge Wolfgang Schomburg rejected plea agreements in war crimes cases "out of principle" in an interview with IWPR earlier this year. In court, he expressed his disapproval of the device by refusing to follow prosecutors' recommendations and voting consistently for sentences far higher than those proposed.

The OTP has always insisted that the people who strike such deals must show true remorse and agree to testify as prosecution witnesses in other cases. When pressed, prosecutors acknowledge that this arrangement is often the only way to break the conspiracy of silence surrounding particular crimes.

Even the tribunal's most vocal critics have agreed that some of these arguments make sense. However, a sense of bitterness remains, not least when an accused fails to uphold his or her side of the plea agreement.

For example, Plavsic reportedly reneged on her promise to appear as a prosecution witness, although the court has consistently refused to comment on the issue. And some of those who did take the stand - such as several Srebrenica accused - were shown during cross-examination to be untrustworthy.

POLITICAL FALLOUT

The prosecutors' desire to indict the engineers of the wars in the former Yugoslavia has had far-reaching political consequences in the region - especially in Serbia.

The willingness of Balkan states to deliver indictees to The Hague has been used by the international community as a measure of their progress towards democratisation and eligibility for foreign aid and membership of western institutions - with the latter denied them if they fail to comply.

For the late Serbian prime minister Zoran Djindjic - who in 2001 arrested Milosevic and transferred him to The Hague - the task of dealing with the tribunal's indictments was a major political challenge. Arresting and delivering indictees was difficult in an environment where many war crimes suspects were still in positions of power and nationalist sentiment was still running high.

Under these circumstances, Djindjic chose to present the delivery of indictees as the price Serbia had to pay for receiving western aid rather as a means of seeing that justice was done.

Although his handling of the cooperation issue was often been criticised because of this, a number of observers believe that the pragmatic western-looking premier ultimately paid for his compliance with his life.

Djindjic was assassinated in 2003, and one of the fears surrounding his killing was that it was prompted in part by his cooperation with the tribunal.

Other republics and entities in the regions have also paid a price for non-cooperation.

Croatia's persistent failure to arrest the fugitive general Ante Gotovina halted the opening of talks for possible European Union accession this month. Serbia's reluctance to meet tribunal demands after Djindjic's assassination has resulted in an international aid freeze. RS's inability to arrest a single indictee in the nine years since the Dayton agreement has thwarted Bosnia's ambition to join the NATO Partnership for Peace programme - and could even lead to the abolition of the Serb security services in Bosnia.

The insistence on cooperation with has prompted some to accuse the OTP of provoking instability in the Balkans.

This autumn, almost exactly a decade after the first indictment was signed, several Balkan media outlets published an opinion piece by former US ambassador to Croatia and Serbia and Montenegro William Montgomery, in which he said Del Ponte's policies were helping to strengthen the forces of nationalism in the region.

The US government insisted this comment did not represent the country's official policy towards the Hague prosecutor.

A number of commentators argue the work of any war crimes prosecutors will inevitably provoke undesired reaction in the region.

"The job of the prosecutors is to bring people to court, and this in itself can cause political instability," said Tim Judah, the author of two acclaimed books on the Balkans conflict and a long-term observer of the tribunal.

"But this is an almost unavoidable structural problem that stems form the prosecutors' mandate."

Armatta agrees, saying, "Prosecuting movers and shakers means unearthing the secrets of the bloody regimes and upsetting the vested interests in the places that are struggling to come to terms with their past."

OSI's Neier, however, concedes that "there were times when it was possible [for tribunal prosecutors] to be more diplomatic".

But he believes that it is unfair to blame the OTP for destabilising the Balkans by simply doing its job.

"One can achieve stability by trying to cover up or neglect great crimes, but people don't forget about those things," he said.

"Then the next generations are presented with the bill for not holding the appropriate people accountable - usually in the form of new wars and new crimes. Accountability may be a crucial way to ensure that further crimes do not happen."

IMPACT IN THE REGION

Opinion poll results indicate that more than half the residents of Bosnia's Federation have confidence in the tribunal, but that more than 60 per cent of their Bosnian Serb neighbours distrust it.

In Kosovo, support for the UN court reached more than 84 per cent in October 2004. However, this was just weeks before the first Kosovar Albanian war crimes suspect went on trial in The Hague, and any future poll is likely to reflect the overwhelming negative media coverage the trial has received.

But it is in Serb-dominated areas where disapproval, and ignorance, of the tribunal remains strongest.

A recent Strategic Marketing Agency poll suggests that, some ten years after the first indictment was issued against the commander of a Serb-run detention camp in Bosnia, only one quarter of Serbs believe that such camps exist.

And fewer than a fifth believe that the former Yugoslav army plundered Dubrovnik or bombed Mostar; that Serb paramilitaries murdered civilians in eastern Bosnia or that Serbian security forces persecuted Kosovar Albanians.

Some observers feel the prosecutors could have made more of an effort to explain their work to people in the region, regardless of the negative attitude of local media and political elites.

"The tribunal does not exist in a vacuum," said Dimitrijevic. "The prosecutors' office has failed time and again to show understanding for local circumstances, be it the lack of a proper information campaign, badly timed publication of indictments or poor choice of witnesses."

But Hague prosecutors insist that they've done their best to press home their message in the region - and insist that their task has not been an easy one.

"Neither we nor the tribunal as such have the means to or should even consider competing with the powerful media networks or the different political agendas influencing public opinion in the Balkans," said OTP spokesperson Florence Hartmann.

"The prosecution's mandate is not to make itself popular, but to bring justice.

"The OTP believes it has conveyed a message of the need for truth and justice out to the region. But whether this message is accepted is another question."

Justice, so it was hoped, would further reconciliation in the Balkans - but observers agree that this has not happened.

Judah, who has written extensively on the subject, said, "Reconciliation was one of the stated goals of the tribunal.

"But the court's record on this issue is patchy at best, with some successes such as relative normalisation in western Bosnia or the breaking of the taboo among Serbs surrounding the Srebrenica massacre."

Former Nuremberg prosecutor Ferencz is adamant that reconciliation is not a part of a prosecutor's mandate.

"Prosecutors are there to do justice, to hold perpetrators of grave crimes accountable and, if possible, to deter others from repeating such crimes," he said.

Human Rights Watch's Dicker believes that "maybe we have expected too quick an impact" from the court's work. "It will take more than criminal trials alone. It will also require the passage of time to heal the scars," he said.

But according to Zarko Puhovski, the head of the Croatian Helsinki Committee, the OTP's persistence may have achieved far more than appears at first glance.

"War crimes perpetrators may still be heroes for some parts of the population, but the majority want to distance themselves from the crimes that may have been committed in their names," he said.

"[Prosecutors] broke the taboo surrounding war crimes. It is because of their persistence that it became possible to talk about the crimes committed by one's own side, not only by the others."

Even in Serbia, where anti-tribunal sentiment still runs high, the mood is palpably different now from what it was only five years ago.

The earlier-cited opinion poll shows that 37 per cent of those polled feel that the country needs to face its wartime record and accept its share of responsibility in order to move forwards.

And in Bosnia, the work of the court and its prosecutors "was the only real way out", according to Professor Grebo.

"The full truth about the crimes may never come out, and not every war criminal will be brought to justice," he said. "This is something we need to accept.

"But there has been minimal recognition of the sufferings people have been through and minimal satisfaction for those sufferings has been achieved. I hope this is enough to prevent us from reaching for our weapons again in 40 years to collect unpaid debts."

LESSONS TO LEARN

Looking back at the prosecutors' 12-year record, observers point to several key issues that need to be dealt with if future courts - especially the newly-established International Criminal Court - are to avoid problems faced by the tribunal.

"We have to accept future prosecutors will have limited time and resources for their work," said Dicker.

"They will have to find the best ways of using what they have: concentrate on the highest perpetrators, the heaviest charges and the best evidence and give up on ambitions to make history. Criminal trials will have to be just that - trials."

Ferencz also has some advice for those who will follow in the footsteps of the OTP.

"I think the new tribunals should limit the time, the scope of the charges and the number of the defendants," he said. "Then the prosecutors would not have to fear such protracted trials which risk turning supporters into unwilling critics."

But under the circumstances, he adds, tribunal prosecutors "can be proud of the work they've done".

The fact that the ICC was formed, he said, is the best proof of the ultimate success of the ideas of international justice, as envisaged by the founders of the Hague tribunal - and the large part of that success is due to the skill and dedication of its prosecutors.

"We have seen an evolution of justice that hardly seemed imaginable just 20 years ago," Ferencz said.

Ana Uzelac is IWPR project manager in The Hague.