Transitional Justice Forum

As regards to the deterrent effect of ICTY on Milosevic, at the end of 1998 only four judgements were delivered by ICTY (without appeals). This was too soon to expect any deterrent effect and the blame was not completely on side of ICTY but on the reluctance of NATO to apprehend the suspects and non cooperation of ex-Yugoslav States.

Regular TJF readers are probably already aware that I'm a war-crimes court skeptic. But I'm certainly open to being convinced that they are valuable for members of societies struggling to escape from atrtocious violence.

I do think that is the key reference we should all be seeking to engage in this discussion!

Dear Helena,

I just got my latest FP with your piece on intl courts (and I'm also in my last four weeks of writing a book on the Balkans for Brookings), and I beg to differ, both on the ICTY and on the Nuremberg court. (I'll skip the latter, and try to keep my comments short on the former.) I totally agree that the most important thing is to stop perpetuation of the fighting, and that intl courts can have unpredictable results. I'll take as a given that what you say is true for the ICTR; I don't know that scene at all. But I submit that the dynamic of the ICTY has turned out differently. (And I notice that the one book you suggest for the ICTY is from 1997, which has to be still theoretical rather than experiential, since the first ICTY verdict wasn't handed down until May 1997.

This is going to be scattershot. But in brief, it is my understanding that the Serbs are actually going to deliver Mladic to The Hague in the next few weeks. This would never have happened without the serious record of ICTY convictions and the example of the Croats in giving up Gotovina (and getting the reward of starting the negotiations for EU membership--that's important, and it's a crucial difference from anywhere else in the world. It makes the dynamic of the ICTY different. The popular attitude toward the ICTY has changed, in both Croatia and Serbia. Look at the low turnout in protests in Croatia when Gotovina was packed off, as contrasted with the huge protests (and murders of witnesses) in the earlier stage. Look at the willingness, finally, of Kostunica to pack Mladic off. And look at the efforts of the Serb Socialists to dissociate themselves from Milosevic- I haven't seen any reliable polls recently, but anecdotal evidence suggests that his support has gone way down. The unearthing and showing of the Scorpions' video from Bosnia would not have had the impact it did last year if there hadn't been the background of the ICTY, establishing at least legal truth. And I think that establishing the precedent of systematic rape as a crime against humanity was commendable, and would not have been achieved without the ICTY. Further, the fact that Milosevic was physically out of Belgrade and couldn't personally poison politics there was (and is) a boon--as is the fact that his wife and son fled to Moscow.

Another thing - yes, amnesty and attempts at reconciliation are important. That was practiced successfully (skin of their teeth) in Macedonia--and reservation of all war-crimes trials for the ICTY meant explicitly that no Macedonian court could try the guys who had been killing each other there and thus stoke the enmity. The ICTY preempted that.

Further, without the ICTY, the evidence of Srebrenica would have been (re)buried far more extensively than it was. The Serbs were not interested in investigating the massacre. (Granted, 8000 is puny by African standards, but nonetheless, it was pretty awful.) IFOR/SFOR wouldn't go near the place. That left the ICTY prosecutors/investigators, like some 20th-century Judge Dee, to go there and sift through the bones themselves.

Another point is that the ICTY example in standards of legal proof is filtering down to the special national courts in Serbia, Croatia, and Bosnia that just started some of their own trials last year (with convinctions of Serbs in Serb courts, Croats in Croat courts, etc.)

One last point. Yes, intl courts are expensive, and I'm sure it's a good thing that the ICTY is now winding down. But what's the alternative? The US courts, where more and more internationals are going for all sorts of cases? Maybe, but given the US record on torture in the last 4 years, that makes me very uneasy.

I'm not arguing that a legal process can or should replace a political process. I'm just saying that the ICTY's pragmatic impact on the political dynamics in the Balkans has been more complex, and more beneficial, than you allow.

I have just read Helena Cobban's piece on international courts in Foreign Policy. My short comments are based on my practical and, I daresay, authoritative experience in these matters, having served as Special Counsel and Spokesman for the International Tribunal for Rwanda for Rwanda at Arusha, Tanzania for five years from 1997 to 2002, and my career in international affairs in general in the United Nations.

First, I agree with much of Ms. Cobban's commentary about the illusions many people hold about international justice for war crimes. I discuss many of these problems in my recently published book, "Rwanda's Genocide:The Politics of Global Justice" (New York: Palgrave Macmillan, November 2005) -- not only in regard to Rwanda in particular, but in the context of other international tribunals from Nuremberg down and in a wider conceptual context.

Second, Ms. Cobban, however, overdoes it by failing to recognize that these courts, as agents of political justice, have indeed served some useful purposes that I detail in my book. In making rough mathematical calculations about the costs of trials and justice, the article adopts a somewhat simplistic approach because there are political as well as finacial cost benefits to these trials.

Third, the article, its criticisms of the Arusha tribunal, and the suggested reading list all are typical of the usual perspective on these matters that is limited to Western commentators. I feel there should have been mention of my book as one of the guides to further understanding of this subject. Anyone who reads that book will easily see why: few people who write about this subject have any inside knowledge of it. Their "expertise" is based on a few short trips to the trials and on interviews. "Rwanda's Genocide" is an authoritative inside story, combined with benefit of some distance and detachment from the subject matter that the past few years have afforded me. Anyone presuming to comment on the Rwanda genocide trials at Arusha should frankly read it before doing so. Give more space (and credit) to informed perspectives from the developing world in discussing these matters in leading journals of opinion.

Finally, Ms. Cobban nevertheless deserves to be commended for the courage of going against conventional wisdom and asking that we test several preseumptions on the evidence.

Kingsley Moghalu, PhD

While I found Ms. Cobban's article interesting, I had to disagree with it on many points. I won't go into a lot of detail here, but I think that the Ms. Cobban did a disservice to international justice when she ignored the effect it may have on national court systems. I wonder what Ms. Cobban's views are on the recent moves by the Sudanese government to set up a national court system for Darfur crimes, in response to the ICC investigation? I think it is interesting that they would even attempt to do such a thing.

Please see the following excerpts from an AMICC document written in response to Ms. Cobban's article:

"Most important, the tribunals and the ICC therefore encourage
reconciliation among the parties. Trials acknowledge and condemn the
suffering of victims and establish an accurate historical record of what
actually happened during the years of bloodshed, which may otherwise be
denied or distorted by propaganda. Such a record helps people
understand, and eventually come to terms with, the past and each other."

"Victims of atrocities generally demand justice. As a 2005 International
Center for Transitional Justice survey of residents in northern Uganda
discovered, most respondents want both. 76% of respondents said that
those responsible for abuses should be held accountable for their
actions. When asked of what should happen to leaders of the LRA, 66%
were in favor of punishing them, while only 25% suggested measures such
as forgiveness, confessions to the community, and compensation. Of those
who had heard of the ICC, a majority believed that the court would
contribute both to peace (91%) and justice (89%).

Moreover, the ICC allows victims to become parties to proceedings. It is
not merely the prosecution and defense who will be battling cases in
court. Victims can make direct submissions to the Court, as well as
through counsel, and make applications for reparation. This corrects on
the failure of the previous tribunals, where victims were mere fact
witnesses whom were only called by the parties to give evidence in the
proceedings."

"Amnesties and prosecutions are not mutually exclusive. Because of their
mandates and limited resources, the tribunal and ICC prosecutions can
only target the most senior perpetrators with a unique responsibility in
the atrocities committed. Followers of such leaders may be prosecuted by
national courts, undergo traditional justice procedures, receive
amnesties, etc. Societies and governments must decide the appropriate
course of action against lower level offenders."

"Since the ICC complements national criminal jurisdictions, it promotes
the rule of law through the mere threat of involvement. States will be
encouraged to investigate and prosecute atrocity crimes. If states do
not act, the ICC may find it necessary to pursue its own investigations
and prosecutions. Whether the Court will be successful in deterring
violence may be difficult to determine in the short-run. However,
assessments will be made on the Court's effectiveness in providing
deterrence through balanced justice once trials commence in the near
future. As experience makes it possible to evaluate the Court's
contribution to deterrence, it may prove important that for leaders,
atrocities are crimes of calculation, not of passion."

"The ICC also improves on the tribunals' work, by investigating and
conducting proceedings while atrocities are being committed. The Court's
actions will remove the most senior perpetrators, ensuring that those
orchestrating the violence will not do so in the future. Trials will
isolate and incapacitate criminal leaders so that they can be removed
from active political participation. Future tyrants will also think
before they act, debating the usefulness of committing atrocities in the
service of their perceived interests."

"In addition, the Court's permanence allows for its rapid ability to act,
without losing precious time in formation. This allows the Court to
create long-standing relationships which aid in the ability to move
quickly to address violence as it occurs, and correct past mistakes in
conducting future cases."

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Wasana Punyasena
Deputy Convener
American NGO Coalition for the ICC
United Nations Association for the USA