ICTY : Is International Justice Taking the Wrong Path?

The suspicions bearing on the integrity of the President of the ICTY, Theodor Meron, associated with a series of controversial verdicts, have led to an intense and uneasy mood within the Court. Is it the sinking of an entire institution or the remediable mistakes of a few judges? The analysis of Joël Hubrecht, Head of the International Criminal Justice programme at l’IHEJ.

An article published in the New York Times on the 14th June amplified suspicions Danish Judge Frederik Harhoff, aired against the president of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the American Theodor Meron. Juge Harhoff accused Juge Meron of pressuring his colleagues for the acquittal of several the accused. The article also mentions a “high representative of the Court” who, anonymously, shared about the disruption that affected “almost half of the judges”. Where does this uneasy feeling and even of rebellion in face of the judgments made in the last months by the ICTY stem from?

In an article published in Le Monde in December 2012, Pierre Hazan, a renowned Swiss academic, said that the November 16th judgment acquitting the Croatian general Gotovina “is and will remain a stain for all those who believe in international justice and even more so to the victims.” However, what is most striking in this case is not that the three judge majority’s verdict is challenged by the dissenting opinions of two other judges – that’s common enough- but that the dissenting arguments were so strongly worded, going so far as to say that “the judgment of the Court of Appeal contradicts any sense of justice.”

© ONU/Sophia Paris

However, this controversial verdict was only the first in a series of shocking acquittals that only reinforce the sense of the tribunal’s increasing disorder. An increasing sense of disorder, at the same time, seriously challenges the fundamental reason for the tribunal: to judge those most responsible for mass crimes perpetrated in the Balkans in the 90s. The protests beyond the tribunal by victims’ associations would be sufficient grounds to worry about this situation because the tribunal’s purpose was to address their conflict in the first place, even if it is not the same (and by definition does not have to be) in-line with their own interests or versions of events.

But, in addition to the scathing dissents concerning the tribunal’s procedure, the most serious suspicions derive from the tribunal itself. These suspicions concern possible political pressure brought to bear upon the tribunal’s direction, and from there, upon other judges and their decisions. Danish judge Frederik Harhoff confided his worries to about sixty colleagues in an e-mail that the Copenhagen daily BT was able to obtain and publish on the first page of June 3, 2013 edition. So it is henceforth Judges, victims associations and defenders of human rights, academics and the media gathered to undermine the operation of a tribunal whose creation they had supported and in whose activities they were engaged participants. We are therefore confronted by an unprecedented crisis.

Contrary to popular opinion, acquittals and dissenting opinions expressed by a minority of judges in a verdict may be evidence of a well-functioning justice system. Acquittals show that the accused is not convicted in before a trial, that credible evidence must be presented by the prosecutor and the unjustly accused can be publicly rehabilitated. Dissenting opinions demonstrate the variety of possible interpretations of the facts and a rejection of an idealized, monolithic, and quasi-divine justice which designates “the” truth.

At ICTY, acquittals and dissenting opinions are not anymore the signs of a deliberative and well-functioning justice system but symptoms of malfunction. But what is the true nature of the dysfunction? Are we assisting in the steady decline of a project of international justice? The sinking of an entire institution? Or the remediable mistakes of a few judges? To find out, it is necessary to avoid hasty and definitive pre-conclusions. The issue is too serious for observers to feel self-satisfied.

These concerns and observations require that we attempt to understand the acquittals pronounced by the court in several cases, starting with the earliest, that of Naser Oric, until the most recent, the case of Stanisic and Simatovic . From this analysis, we will show the different facets of the tribunal’s current malaise. We will also articulate consequences and suggest ways to illuminate further points of inquiry.

Joël Hubrecht
Head of the International Criminal Justice and Transitional Justice programme

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