Justice vs. Propaganda: Are Trials at the International Criminal Tribunal for the Former Yugoslavia Legal or Political? An Empirical Analysis of the Indictments

Abstract

The recent acquittals of Ante Gotovina and Ramush Haradinaj at the International Criminal Tribunal for the Former Yugoslavia (ICTY) have once again raised questions about the nature of the ICTY’s trials: are they predominantly legal or political? This Article attempts to answer that question through a first-of-its-kind empirical study of the ICTY’s indictments. It tests whether the ICTY’s trials are structural show trials by looking for statistically significant correlations between the components of the indictment and conviction/acquittal or sentence length. It also explores whether the indictments comply with the requirements of international criminal law, are internally consistent, and match what we understand about how serious violations of international criminal law are committed. Finally, it compares charging practices at the ICTY to charging practices in a number of domestic criminal justice systems that are broadly viewed as fair and finds that the ICTY’s charging practices fall within the range of those domestic practices. The results of this analysis suggest that the ICTY’s trials are not show trials, that they are fundamentally fair, and therefore predominantly legal in nature.However, there is evidence that the Prosecutor has been affected by political considerations when deciding who to investigate and charge. For example, political pressure appears to partly explain the Prosecutor’s decision not to seriously investigate allegations that NATO militaries committed violations of international criminal law during NATO’s 1999 intervention in Kosovo. Similarly, there is evidence that political considerations led the Prosecutor to bring weak claims against non-Serbs partly to respond to criticisms that the ICTY was only prosecuting ethnic Serbs. These cases have failed at a disproportionately high rate, which suggests that it may not have been appropriate to proceed with them in the first place.