Oops! They did it again, they played with the law, got lost in the game

Posted on 01. August 2013

by Jovana Mihajlovic

jovana-mihajlovic-modifiedDuring the 1990’s there was a war between ex-Yugoslavia countries – a war between people who had been Yugoslavian brothers and sisters. Since these „brothers and sisters” slaughtered each other relentlessly, the UN and the EU had to do something about this shameful bloodshed in the middle of Europe. So they came up with the idea to establish an International Criminal Tribunal for the former Yugoslavia (ICTY) with the task of dealing with war crimes that took place during the conflicts in the Balkans in the 1990’s. This should have been a way to make the aggressors think about the possible legal consequences of their criminal acts and on the other hand to give some kind of a moral satisfaction to the victims.

At the beginning, this Tribunal fortunately gathered honorable judges, experts in their profession, who somehow managed to stay distant from  political influence, at least when it came to the question of imposing  criminal liability, not only for the direct perpetrators, but also for their principals and plan creators – the military commanders.

This principle of commander’s liability was established during the Nuremberg trials (later called “the command” or “the superior responsibility”) and still represents one of the most important steps forward in humanitarian law and civilization progress in general. In simple words, not only soldiers who killed innocent people could be convicted, but also and primarily the accountability should be laid upon the commanders. This principle also holds that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action.

Those important humanitarian principles were continuously followed by European courts, as well as by the ICTY, up until recently, when two dangerous precedents were set, which threaten to cause a drastic turn in international legal practice. After some unexpected acquitting verdicts were reached in cases of Serbian and Croatian commanders (cases of Gotovina & Markac, and Simatovic & Stanisic) it initiated the open disapproval and resentment of many prominent legal professionals. The jury found that those commanders did not know or did not intend for their soldiers to commit a war crime and atrocities, although it would have been literally impossible that they did not know about something that was obvious even to ordinary people. The jury actually decided not to implement the principle of superior responsibility. In this way they did an incredible harm to European humanitarian law and damaged something I would say was a holy humanitarian principle. The jury hold up to the logic that those commanders, during whose period of jurisdiction the vicious plans of ethnic cleansing were carried out, could not be found guilty due to the lack of evidence on their intention to commit a war crime. The fact that they must have been awarethat their subordinates committed all sorts of human rights violations and terrible war atrocities and that they did not do anything to prevent nor to punish them – that fact simply does not count! If we followed this kind of logic then we couldn’t say that even Hitler committed any crime. Would then the next step be that political leaders and military superiors – creators of ethnic cleansing plans – can not be convicted unless the strong evidence of their guilt is stated in an official letter of intent in which they order the soldiers to kill and slaughter civilians!?

One of the loudest adversaries to those precedents was the judge of the ICTY, Mr. Frederic Harhoff. On  13 June, the Danish newspaper BT published Mr. Harhoff’s open letter in which he reveals his doubts about the undue influence on judges by the ICTY’s president, Mr. Theodor Meron. In his opinion, the explanation for those spectacular verdicts could lie in Mr. Meron’s connections to the political and military interest groups of powerful countries, primarily the US and Israel. Moreover,  Wikileaks published the correspondence between Mr. Meron and the US government, which proves a violation of rules on judicial independence and moral integrity. Mr. Harhoff and his supporters believe that contemporary military establishments fear that the Tribunal has approached too closely to the criminal liability of military leadership, so this kind of distortion of the Tribunal’s legal practice could create some kind of a shield for the modern war leaders.

This could be, and most probably is, one of the causes for such a terrible verdict, but in my personal opinion there is something more that adds up to this demise of the Tribunal’s credibility. From the beginning of the Tribunal’s mandate there was an international public advocacy for this court to have a mission of reconciling the warring nations of the Balkans, which is a sort of politicization by itself. No matter how human this mission may sound, no court should accept in its mandate to have any kind of political role. That kind of work should be left to other institutions and civil organizations which can allow themselves to tackle the question of warring people’s emotions. When you look at Iustitia, the symbol of law and order, you will see that she is wearing a blindfold, which symbolizes that justice is, or should be, meted out objectively, without trying to satisfy any political goals.

Anyway, damage has been done and there is not much that can be done to make it right. The Prosecutor of the Tribunal, Mr. Serge Brammertz, announced that they will appeal, but I am afraid that that’s just a classical phrase that we lawyers say when things go wrong. A good solution could be an initiative for opening the investigation about the alleged President Meron’s influence on judges in favor of military and political establishments. This initiative has been started with a letter to the UN Secretary, Mr. Ban Ki-moon, requesting an active reaction of the UN to this threat to international criminal law.

What bothers me about this initiative is the fact that the EU is not among its supporters and no EU official has put his/her signature on the letter to the UN Secretary. On the other hand, the EU’s voice has been very loud when it comes to the question of cooperation of the Balkan states governments with the Tribunal.

Do you, my Balkan friends, find the silence of the EU on this matter somehow wrong? And do you, my European colleagues, think that these Tribunal’s “games” are somehow dangerous?