Tribunal Under Pressure Over Completion Strategy

When the Hague tribunal was created in 1993, the first international court set up since Nuremberg 50 years earlier had lofty ambitions.



In prosecuting those suspected of bearing greatest responsible for atrocities committed during the Balkans wars of the early Nineties, it would bring justice to victims, deter further crimes and help restore peace in the war-torn region.



Little did its founders know that 13 years later, the three men considered most responsible for the wars would still have evaded justice, seriously undermining the court’s ability to deter would-be war criminals and causing bitter disappointment for thousands of victims.



Slobodan Milosevic, the former president of Yugoslavia and widely considered the principal architect of the conflict, died four years into a complex and seemingly interminable trial. Radovan Karadzic, the former Bosnian Serb leader, and Ratko Mladic, the wartime Bosnian Serb army chief, were indicted in 1995 but remain on the run.



Karadzic and Mladic - the two most wanted of the Hague courts six remaining fugitives - stand accused of orchestrating the slaughter of 8,000 Muslim men and boys at Srebrenica in 1995, as well as other wartime abuses during the bloody conflict of 1992 to 1995.



Now the tribunal’s completion strategy - an arbitrary deadline by which all trials must be finished by 2008 and all appeals by 2010 - means these two may never be prosecuted in The Hague.



Human rights groups, victims and court representatives have called for an extension to the mandate of the court - which cost the UN more than 276 million US dollars for 2006 and 2007 - but this needs the backing of all council members.



At a UN Security Council meeting on December 15 held to discuss the future of the tribunal, the US, the UK and France supported extending its mandate until all suspects are tried, while Russia, China and Japan opposed this.



The fact that Mladic and others had not been brought to the tribunal could not justify its work going on indefinitely, said Denis Paletskiy, the representative of Russia, which has been a long-standing political opponent of the tribunal.



But even if this opposition is overcome and its lifespan extended, there are no signs that Mladic and Karadzic will be brought to The Hague any time soon.



Witness testimony from the trial of 11 of Mladic’s former aides - prosecuted for their alleged role in sheltering the former general - suggest that he has spent the last few years ensconced in various Belgrade apartments, aided by a network of sympathisers in the Serbian military and intelligence services.



While Karadzic - who has reportedly been spotted disguised as a monk and sipping coffee in Sarajevo - is believed to be hiding in the Bosnian Serb entity of Republika Srpska, RS.



RS and Serbia have so far resisted international pressure to surrender the men, and Serbia’s failure to capture Mladic resulted in the suspension of its EU accession talks in May. This led Serbian prime minister Vojislav Kostunica to launch an “action plan” for cooperation with the tribunal, but this has achieved little.



Belgrade investigators following Mladic’s trail claim it has gone cold, while sporadic raids carried out by the European Union Force in Bosnia and Herzegovina, EUFOR, and NATO have failed to uncover Karadzic’s hiding place.



At last week’s UNSC meeting, Fausto Pocar, the president of the tribunal, and Del Ponte both expressed deep concern that the looming deadline for trials threatens to arrive at the Hague court before the final six fugitives are captured.



Both blamed the countries thought to be harbouring the men.



In his address, Pocar urged the UNSC to keep the tribunal open until the remaining fugitives arrived in The Hague - a demand backed by human rights group Amnesty International.



To close the tribunal without their arrest and trial, he said, could dangerously undermine “the message and the legacy of the tribunal that the international community will not tolerate impunity for serious violations of international humanitarian law”.



Del Ponte - whose relentless pursuit of Milosevic earned her the nickname “the new Gestapo” in the Serbian press - condemned RS and Serbia for lacking the political will necessary to arrest the remaining fugitives.



Serbia could easily arrest Ratko Mladic should the authorities want it, she claimed in her UNSC address while officials in RS have not shown "a robust willingness" to arrest Karadzic, who is thought to be there with fellow fugitive, Stojan Zupljanin, a wartime Bosnian Serb police commander.



She called on the UNSC to “send a strong message” that the trials of the six fugitives - especially those of Karadzic and Mladic - can be tried in The Hague even if caught after 2010.



Victims, she said, would “find it profoundly unjust to envisage closing the tribunal before it has successfully completed its task”.



Del Ponte also attacked NATO’s decision on December 12 to allow Serbia into the Partnership for Peace program - seen as a precursor to future membership of the alliance - which she said was “a powerful signal that the international support for the tribunal is decreasing”.



“The political will to arrest remaining fugitives must be strengthened,” she insisted.



But if political will is swayed by public opinion, there seems little incentive for politicians to cooperate with the Hague court.



An opinion poll carried out in October by the Serbian National Committee for Cooperation with the tribunal suggests that Serbian nationalist support for Mladic endures - with only 34 per cent supporting his capture and transfer to The Hague.



Similar research shows a mere four per cent of those polled in RS support the work of the tribunal.



In spite of this, Bosnian Serb and Serbian authorities maintain they are doing all they can to capture the men.



On December 9, Milorad Dodik, the prime minister of RS, said he was willing to arrest war crimes suspects - if only he knew where they were - and called on them to surrender.



“It is in this country's interest to remove this obligation from the agenda,” he said in a report by Serbian news agency B92 on December 17.



Rasim Ljajic, the Serbian president of the National Council for Cooperation with the ICTY, agrees.



“Every delay in fulfilling of our international obligations [in surrendering the fugitives] could be catastrophic for Serbia,” Ljajic told IWPR.



And Belgrade is not only claiming willingness to find the men, but is now showing a desire to prosecute them too.



Bruno Vekaric, spokesman for Serbia's war crimes prosecutor's office, says, “The Serbian judiciary are ready to try Radovan Karadzic and Ratko Mladic, under the monitoring of the international community.”



He told IWPR that “for reconciliation, it’s better to try them in Serbia. This is the only way for people in Serbia to understand what really happened”.



Slobodan Kovac, Bosnia’s justice minister, said Bosnia is also ready to prosecute the pair. In a November 13 letter to Bosnia’s Council of Ministers, he claimed that Del Ponte’s appeal to extend the tribunal’s mandate beyond 2010 was therefore “not justified”.



But Kovac’s remarks sparked a storm in the media and amongst survivors’ groups, who want the men brought to The Hague.



Amir Ahmic, Bosnia’s liaison officer with the ICTY, told Sarajevo-based daily Avaz that Kovac’s suggestions were “scandalous and an insult for the victims of war crimes in Bosnia”.



With Bosnian support for the future of the tribunal seemingly in doubt, Del Ponte flew to Sarajevo on December 1 to hold talks with the tripartite Bosnian presidency, which announced December 13 it would support a continuation of tribunal work after 2010.



But if the UNSC votes against such an extension, what does this mean for any future prosecutions?



André de Hoogh, a senior lecturer in International Law at the University of Groningen, says even if the court is closed, public pressure to try Karadzic and Mladic before the tribunal could lead it to reopen - if or when the men are arrested.



De Hoogh says that holding a trial in Bosnia - where the national courts would be under no obligation to prosecute Karadzic and Mladic because they were indicted in The Hague, not in Bosnia - could be problematic.



"It depends on the national prosecutor and department of justice and whether they want to prosecute. In Bosnia, the political situation is still sensitive. They might not be happy holding a trial there."



Instead, he suggests, Bosnia might look to solutions implemented in other cases, where political sensitivity has led prosecutors to hold trials under their national jurisdiction but in a neutral country.



One example is the war crimes trial of Charles Taylor - the former president of Liberia -which will be conducted by the Special Court for Sierra Leona, SCSL, but is being held at the facilities of the International Criminal Court, ICC.



Such a solution might be preferable to a trial in the Balkans, where human rights organisations say there is an insufficient protection for witnesses, and where Karadzic and Mladic are still lauded as heroes by many Serbs.



The UNSC is expected to decide next year on whether to fund any more trials into 2009.



Whatever its decision, the last 13 years have shown that state cooperation - or lack of it - has been a key factor in the success of the Hague tribunal. This should not be overlooked when the ICC prepares to open its first case - that of Congolese war crimes suspect Thomas Lubanga - in the New Year.



Caroline Tosh and Aleksandr Roknic are IWPR reporters in The Hague. Merdijana Sadovic is IWPR’s Hague project manager.