Institute for War and Peace Reporting | Giving Voice, Driving Change

US Lacks Confidence in Balkan Courts

American officials are adamant that local judiciaries should not try Karadzic and Mladic
By Katy Glassborow
The US ambassador for war crimes says fugitives Radovan Karadzic and Ratko Mladic should face an international court if they are captured after the Hague tribunal is closed.

Clint Williamson recently told the Sarajevo newspaper Dnevni Avaz that if the tribunal winds down in 2010 as planned, a “new body in the international system” must be found to try them. He added it would be “absolutely unacceptable” to try Karadzic and Mladic in Belgrade.

This adds a fresh dimension to the time pressure the tribunal is already under to finish all trials by 2008 and appeals by 2010. Williamson said that if Karadzic and Mladic are arrested and come to the tribunal in 2009, “we must be flexible and allow the tribunal to try them”.

If this optimistic hypothesis does not play out and the tribunal closes without Karadzic and Mladic, “we must find a body in the international jurisdictional justice system to try them”, said Williamson.

The spokesperson for the prosecutor at the tribunal, Olga Kavran, told IWPR that Karadic and Mladic must be tried at the ICTY, and that “we should not close our doors until this happens”.

Kavran said “there are still some years remaining to catch all six ICTY fugitives” and insisted that “they cannot be tried before local courts”.

Just in case, the US ambassador said his country is engaged in talks with governments and the international community over different bodies which might succeed the tribunal.

The world’s first permanent war crimes court - the International Criminal Court, ICC, also based in The Hague - may seem like an obvious choice to replace the ad hoc war crimes tribunals for Rwanda and the former Yugoslavia that preceded it.

However, prosecutors in this court only have jurisdiction over crimes committed after 2002 when it was founded. Another problem is that the ICC is not supported by the US.

The special assistant to the US war crimes ambassador, Matthew Lavine, told IWPR that in consultation with other governments and the ad hoc tribunals themselves, the US is envisaging a “residual reserve capacity” for the ICTY, with a “small, permanent registry” to persist after 2010.

Lavine explained that the ICTY could forge an agreement with the ICC to use their facilities, in the same way that the Special Court for Sierra Leone has negotiated the trial of Charles Taylor to be hosted in The Hague, rather than in Freetown where the Special Court is based.

It is important to establish an international mechanism that can “always be there to try fugitives” and send a message that they cannot “escape justice or outlive the tribunal”, said Lavine.

Others agree that this is the only viable route for the ICTY past 2010.

William A. Schabas, the director of the Irish Centre for Human Rights, said that the tribunal will have to maintain some presence to deal with issues such as the detention of accused in custody past 2010.

He said it cannot be ruled out that new witnesses could one day come forward proving categorically that one of the convicted was not in Yugoslavia during the Nineties atrocities, adding the ICTY statute “provides for reviewing cases that have been completed, with no time limit”.

Therefore, a skeleton ICTY must be on standby after the doors of the tribunal are closed for new cases, with a handful of judges who could reconvene at short notice in a courtroom borrowed from the ICC to deal with new evidence or parole issues.

A different option is that of “universal jurisdiction”.

A three-judge ICTY referral bench could send cases to the courts of the territory where the crime took place such as Bosnia; the courts of the country where the accused was arrested; or even to a country other than those of the former Yugoslavia such as Norway or Canada.

The judges would consider the “gravity of the crimes charged and the level of responsibility of the accused”, which Schabas says would be used as an argument against the court sending important offenders to national courts.

Lavine worries that because Balkans courts do not practise extradition, “there is no way of getting a suspect tried in Bosnia” if he is apprehended in Serbia, for example.

However, Schabas says the rules can be changed by judges, explaining that “this is not a choice between a new international tribunal and the Bosnian courts” as Karadzic and Mladic could be prosecuted by national courts in countries like Belgium or the Netherlands.

This seems to be a slap in the face for courts in the former Yugoslavia, especially the Belgrade District Court War Crimes Chamber and Bosnia’s War Crimes Chamber in Sarajevo, which have been working hard to try lower ranking accused.

But several international lawyers are urging them not to be discouraged.

Stuart Alsford from the International Bar Association told IWPR that “very few national courts” exist anywhere in the world that could deal with cases of this complexity.

Ironically, it is those countries emerging from years of conflict which are asked to deal with cases of grave war crimes and crimes against humanity, which is why international assistance is always necessary.

Even Iraq’s attempts to try Saddam Hussein locally necessitated huge assistance from the US and a plethora of other international organisations, and still the fairness of his trial was criticised.

Alsford added that if it were possible for the international community to put together a package of support to assist national judiciaries - such as in Iraq and Cambodia - then this should be the first consideration once the ICTY is gone.

Accordingly in 2003, the US gave the Serbian judiciary four million US dollars to restore the old military court which now houses the War Crimes Chamber and 870,000 dollars for electronic equipment.

They also provided support for the establishment of a victim support unit, and in December 2006 donated 50,000 dollars to the Belgrade court to buy audio equipment for the new fifth courtroom.

Alsford said trials of war crimes suspect in domestic courts “is the future” and at the heart of “complementarity”, a principle underpinning international law which puts the first responsibility on the national justice system.

However, Alsford acknowledged that there needs to be a system to deal with cases when the national system cannot, but said the issue is at which point to intervene and provide assistance to the country, or take the case away to stage it elsewhere.

Dejan Anastasijevic, a journalist from the Belgrade-based news magazine Vreme (Time), told IWPR that the Americans are insisting on trials in The Hague because Karadzic and Mladic are “big fish”, too big for local judiciaries. However, he said the US government supports trials of lower ranking accused in local courtrooms and also investigations being carried out in national judiciaries.

The spokesman for the prosecutor’s office in Sarajevo, Boris Grubesic, told IWPR that Bosnia’s court is “capable of trying Karadzic and Mladic”, having “proved this already by prosecuting 50 individuals in 27 cases for war crimes”.

But he added that the general attitude in Sarajevo is that they “should be tried in the Hague tribunal”, because they were such high ranking political and army officials in Republika Srpska during the Bosnian war.

Lavine told IWPR that if local judiciaries are capable and willing to try cases, as a matter of principal it is “always preferable” for suspects to be tried in those countries, as this is the “best route towards reconciliation”.

He said that the US has confidence in national courts, and that in November 2006 the Bosnian court successfully completed the case against Radovan Stankovic - which was passed down from the ICTY - to a “very high standard”. Stankovic was sentenced to 16 years in jail.

Lavine also pointed to the Ovcara case, which centred on crimes Croatia’s Serbs committed against Croats in Vukovar in November 1991. Fourteen former soldiers from the Vukovar Territorial defence, TO, were accused of participating in the killings of more than 200 Croat patients and civilians taken out from the Vukovar hospital after the town was overrun by the Yugoslav army.

Lavine says the case is a “great testament that Serbs could try their own war crimes suspects in Serbia”.

In December 2005, all 14 TO members were found guilty by the War Crimes Chamber of the Belgrade District Court, but one year later, the Serbian Supreme Court overturned this verdict and ordered a retrial.

The US, which was convinced that the trial in Belgrade was run by the book, were disappointed with this new development.

“There is a reason to suspect this was a political decision,” said Lavine.

The Americans worry that the same may happen in a case against Karadzic or Mladic if tried locally and are concerned that supporters of the suspects may exert political pressure, which would be very damaging for a case that is so politically sensitive.

Alsford told IWPR that Karadzic and Mladic carry with them “huge loyalties, which is how they have evaded capture” but also “feelings of revulsion” for what happened, and stand accused of deaths of hundreds of thousands of people. Therefore, national trials “could spark all kinds of difficulties”, he said.

It seems that this argument was central to the tribunal’s prosecutors’ June 2005 decision to withdraw their earlier suggestion that the “Vukovar Three” trial should be referred from The Hague to local judiciary in Croatia or Serbia.

Former Yugoslav army officers Veselin Sljivancanin, Mile Mrksic and Miroslav Radic are currently on trial for allegedly commanding and supervising troops - including those on trial in Belgrade - who killed 200 Croats at the Ovcara farm near Vukovar.

In a report to the judges explaining her decision, the tribunal’s chief prosecutor Carla del Ponte said there were “several potential problems” during the talks with Croatian and Serbian authorities.

In July 2005, the trial chamber decided the Vukovar case was not eligible to be sent to national judiciaries, because the accused were high-ranking officers indicted for very serious crimes, with emotions surrounding the case very strong in the region.

Therefore, the trial of the Vukovar Three started in The Hague in October 2005.

Lavine reiterated that the US has confidence in local judiciaries, but because of the political stature of Karadzic and Mladic, local courts are not the solution - partly because the accused may have “more confidence, and a chance to distort the record” in a court in Belgrade.

Because ad hoc criminal tribunals will not be repeated, due to their expense and the existence of the new permanent ICC, justice for those outstanding Yugoslav suspects will be a combination of a skeleton ICTY at the ICC, with domestically tried cases.

Alsford said that the Security Council may even be able to identify former ICTY judges to go and hear cases locally, producing a hybrid system like in the Special Court for Sierra Leone.

It is also worth remembering that the tribunal has indicted 161 individuals, but there were a vast number of crimes committed between 1992 and 1999 in the conflict that devastated the former Yugoslavia.

Kavran told IWPR that local courts still need to exercise their jurisdiction, which is in “complement to the tribunal’s”.

She said the ICTY will try those with the highest level of responsibility, but there are “hundreds if not thousands of individuals that need to be tried for crimes committed, so the local courts have plenty of opportunity to prove their ability to try these crimes”.

Katy Glassborow and Aleksandar Roknic are IWPR reporters in The Hague.

More IWPR's Global Voices

FakeWatch Africa
Website to provide multimedia training and resources for fact-checking and investigations.
FakeWatch Africa
Africa's Fake News Epidemic and Covid-19: What Impact on Democracy?
Amid Pandemic, Cuban State Curbs Its Entrepreneurs
The crackdown on street vendors selling basic goods means people have to join long queues in government-run shops.
Cuba's Elderly Work Through the Pandemic
Cuba Slow to Act Over Domestic Abuse