Punishment of War Crimes by International Tribunals

Abstract

IN this essay I discuss my experience with war crime trials at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague and what implications that experience may have for future international criminal tribunals, whether temporary or permanent. I will begin with a brief tutorial on the Yugoslav tribunal. The Yugoslav Tribunal The ICTY was established by a United Nations Security Council resolution in 1993 as a 14-member court on which no country could have more than one judge. The judges are nominated by their respective countries for four-year terms and elected by the UN General Assembly. Subsequent amendments to the ICTY statute have enlarged the court to 16 members and provided a corps of 27 ad litem judges who come to The Hague for one or two trials but do not enjoy all the privileges of full-time judges. The mandate of the tribunal is to prosecute and try individuals for war crimes, crimes against humanity, and genocides (as defined in the statute) committed on the territory of the former Yugoslavia since 1991. Indictments are brought by the prosecutor, who is chosen by the Security Council. The tribunal is authorized to impose prison sentences up to life but not the death penalty; sentences SOCIAL RESEARCH, Vol. 69, No. 4 (Winter 2002) Punishment of War Crimes by International Tribunals BY PATRICIA M. WALD are served within the prison systems of several nations with whom the tribunal has formal arrangements. The tribunal has no police force of its own and must depend on the cooperation of states and the Stabilization Force for Bosnia and Herzegovina (SFOR) for arrests, access to documents, and compulsory production of witnesses. The statute mandates such cooperation from all states but in practice cooperation is not always forthcoming. The tribunal is organized into three trial chambers and an appeal chamber , which also hears appeals from the International Criminal Tribunal for Rwanda (ICTR), located in Tanzania. Judges sit in trial panels of three on individual cases. The statute provides for an independent Office of the Prosecutor (OTP) and a registry to provide logistic support for the tribunal, such as filing, translation , defense services, press and public relations, legal assistance, and security. The ICTY currently has over 1,000 employees and an annual budget of more than $100 million. What has the tribunal accomplished in its nine years? It has indicted over 80 defendants publicly (along with an unpublicized number of secret indictments), completed the trials of over 30 people (of whom all but 2 have been convicted or pled guilty), and completed the appeals of 10 (of whom 7 are serving or are about to serve prison sentences; 3 defendants’ convictions were reversed on appeal). Eleven defendants are currently on trial and 18 are in pretrial proceedings. The majority of those on trial or awaiting trial are in detention at The Hague, although a few are on provisional release to their home states. Of course, the bare statistics do not tell the whole story. Apart from former Yugoslav President Slobodan Milosevic, who is now on trial, several other high-ranking military and civic leaders accused of war crimes or crimes against humanity committed during the conflicts in the 1990s involving Slovenia, Bosnia, Croatia, Serbia, and later Kosovo have been apprehended or voluntarily surrendered to the tribunal. These include General Radislav Krstic, commander of the Drina Corp, who has been found guilty of genocide in the Srebrenica massacres of as many as 8,000 1126 SOCIAL RESEARCH young Muslim men in one week in 1995; Croatian General Tihomir Blaskic, found guilty of the dawn massacre of the village of Ahmici in which 100 Muslim inhabitants were slaughtered and their homes destroyed; General Stanislav Galic, who allegedly oversaw the shelling of civilians in Sarajevo; and numerous mayors and police chiefs of cities and villages in Bosnia who planned or implemented the expulsion of unwelcome ethnic groups from the territory and the imprisonment of thousands of civilians in inhumane conditions in the so-called collection centers that sprang up throughout Bosnia in 1992. It is unfortunately true that two of the most notorious indictees, President Radovan Karadzic of the Bosnian Serb Republic and Ratko Mladic, former commander...