Magazine Feature: With the International Criminal Tribunal for Yugoslavia winding down, it has fallen to the national courts to hold war criminals accountable for the atrocities of the 1990s. Serbia’s experience shows that prosecuting these crimes in resistant domestic settings takes both courage and patience.
Last summer, Radovan Karadzic, one of the most notorious accused war criminals to stand trial since the Nuremberg and Tokyo tribunals, cross-examined prosecution witness Milorad Davidovic, a former chief inspector for the Yugoslav Federal Secretariat of Internal Affairs.
The spectators’ gallery in the trial chamber of the International Criminal Tribunal for the Former Yugoslavia, or ICTY, separated from the courtroom by a thick pane of glass, was mostly empty. A few handfuls of students and other onlookers were monitored by a pair of security guards, who would occasionally peer over the shoulders of note-takers to make sure they were not drawing any pictures of the proceedings. (This is a matter of policy; Davidovic is not a protected witness and was testifying in open court.)
The setting was serene, even sleepy, compared to the International Criminal Court located across town in The Hague. The ICC’s main gallery and public spaces were so packed with groups of visitors during the last week of June 2011 that public affairs staffers had to carefully coordinate groups of tours to avoid traffic jams within the building.
To both its critics and supporters, the ICC is the culmination of an international justice movement that began with Nuremberg and continued with the ICTY, intended to provide a forum for credibly prosecuting the worst violations of international humanitarian law. The United Nations Security Council established the ICTY in 1993 as a temporary or “ad hoc” tribunal limited to prosecuting crimes from the wars that followed the dissolution of the former Yugoslavia. The ICC has a broader mandate: It is an autonomous, permanent tribunal established by treaty and run by its member nations, with jurisdiction beginning in July 2002 – when the treaty entered into force. Since then, the ICC has initiated proceedings for crimes committed in several of the worst conflicts of the past decade, including those in Uganda, Darfur and Democratic Republic of Congo.
As Davidovic sat in the witness chair at the ICTY, judges at the ICC were preparing to issue arrest warrants for Muammar Gaddafi, his son and an intelligence official over the conflict then unfolding in Libya. The excitement was palpable over the court taking on another high-profile conflict; the ICC was the place to be.
By contrast, the ICTY was – and remains – in the midst of its slow wind-down, with most of the cases completed or on appeal. Davidovic was one of about 200 witnesses eventually called by the prosecution in the nearly two-year-long presentation of its case against Karadzic, who is now set to present his defense. Still, for anyone who donned a headset and sat patiently through the simultaneous translations, the exchange between Karadzic and Davidovic had its share of drama. And the stakes remain high: The ICTY’s cases, together with domestic justice efforts in the former Yugoslavia, will either bolster or undermine claims over the value of criminal justice responses to gross human rights violations, and may signal whether the ICC has a realistic goal of meeting its goal to end impunity.
Karadzic served as President of the Republika Srpska, the self-declared Serb entity within Bosnia-Herzegovina, in the early to mid-1990s. He is accused of genocide, war crimes and crimes against humanity for his alleged role in the removal of Muslims and Croats from areas in Bosnia claimed by the Serbs. Prosecutors contend that he played a leadership role in the massacre in Srebrenica of 7,000 to 8,000 Muslim men and boys in July 1995 (determined by the ICTY to be an act of genocide in an earlier case), as well as the siege of Sarajevo that lasted from 1992 to 1995 – considered two of Europe’s worst atrocities since World War II.
Indicted in 1995, Karadzic was in hiding until his 2008 arrest. He initially boycotted his trial but later decided to represent himself. Trained as a psychiatrist, Karadzic quickly caught on to his role as defense lawyer. One of the two professional lawyers helping him with the case, the American Peter Robinson, has praised his performance.
Davidovic came to testify about coordination between Serb civilians and military and paramilitary forces in forcibly removing Muslims from Republika Srpska. However confident about what he knew, Davidovic tapped his leg furiously as Karadzic repeatedly attempted to tear into his credibility by asking him about allegations of fraud and other financial wrongdoing. Davidovic denied having a criminal record, and said that officials in Republika Srpska had been trying to cast him in “a negative light” as a result of his testimony at earlier ICTY cases. He said he would face a fresh round of “consequences” for his present testimony.
“I came here to tell the truth,” Davidovic shot back at Karadzic – “painful” truths. “Mr. Karadzic, I am a Serb, a member of the Serb people – my father, my mother, my wife – and I do not allow you to impute things of this nature to me.”
Far away, in Serbia, it remained unclear if the ICTY’s attempts at establishing the hardest truths of the wars were ever going to have the type of impact desired by tribunal proponents. Much of the fighting took place after Croatia, in 1991, and Bosnia-Herzegovina, in 1992, seceded from the Socialist Federal Republic of Yugoslavia, with Serbia in control of the Yugoslav Army and police that were aligned with various Serb paramilitary and defense units in the region. (Serbia and another republic, Montenegro, formed a new Federal Republic of Yugoslavia in 1992; they became a looser union of states in 2003, and Montenegro became independent in 2006.)
The 1995 Dayton Accords concluded the war, though the ICTY later assumed jurisdiction of crimes committed during the Kosovo war between 1998 and 1999, when Albanians in that region fought for independence from Yugoslavia. (After the war, the U.N. assumed administration of Kosovo, which later declared its independence – not recognized by Serbia – in 2008.) Approximately 140,000 people died during the conflicts, with about four million displaced; rape and other forms of torture were common.
All sides committed crimes during the wars, which is reflected in the range of defendants prosecuted by the ICTY. Nevertheless, the position of the tribunal – and the international community generally – is that Serb forces, including the Yugoslav Army and police, as well as Serb defense units and paramilitaries, committed the most atrocities throughout the 1990s. In 1999, Slobodan Milosevic, the president of the Federal Republic of Yugoslavia and before that the president of Serbia, became the first sitting head of state to be charged with war crimes. He eventually stood trial for war crimes, crimes against humanity and genocide over his plans to establish Serb dominance in the region; he died in 2006 during the course of the proceedings.
Serbs have generally detested the ICTY, which is viewed as biased against their people, and the results of the cases are not trusted. Convicted Serb war criminals and the high-level remaining defendants, such as Karadzic, are still viewed as heroes by much of the population. (In a recent opinion poll, only 23 percent of Serb citizens believe that Karadzic is guilty.)
The ICTY has had other limitations. The number of war crimes suspects from the conflicts totals in the thousands, with some estimates in excess of 10,000 individuals. The ICTY ended up indicting 161 suspects, eventually developing a focus on senior or command-level defendants. That meant that the vast majority of suspects from the wars would not be prosecuted. In 2003, the ICTY adopted a “completion strategy” that has the domestic courts of the former Yugoslav republics – principally, Bosnia-Herzegovina, Croatia and Serbia – taking back a significant amount of responsibility for war crimes cases. The ICTY still has “primacy” under the tribunal’s statute, meaning it can assume jurisdiction over any case it wants from the wars, but the hope was that the domestic courts could prosecute a significant number of lower-level and mid-level offenders to fill justice gaps left by the tribunal.
As part of this effort, Serbia, in 2003, established a new War Crimes Chamber, based in Belgrade, within its national court system. The chamber is a purely domestic institution, outside the control of the ICTY or any other international agency, which are limited to monitoring and providing assistance when needed. In addition to filling justice gaps, supporters of the new court hoped it would build skills and restore trust in the judiciary. A chamber run by Serbs might also be viewed as more legitimate by the population and, therefore, do a better job than the ICTY at convincing people about the extent of atrocities committed by Serbs. This type of acceptance is often seen as a precursor to reconciliation or at least improved trust between ethnic groups in the region.
As scholars and human rights activists have come to recognize in the past few decades, few goals associated with post-conflict justice efforts are easily attainable, and expectations are increasingly tempered for particularly challenging settings like Serbia – where the legacy of Milosevic’s paranoid brand of nationalism has been powerful. Prosecutors in Serbia’s Office of the War Crimes Prosecutor, tasked with prosecuting cases before the domestic War Crimes Chamber, have faced threats for prosecuting their own citizens at home, as have the chamber’s judges and human rights advocates in the country for supporting the cases.
Vladimir Vukcevic has been the chief war crimes prosecutor in Serbia since the National Assembly elected him to the new post in 2003. Beginning in 2006, Vukcevic, a former deputy state prosecutor, also coordinated Serbia’s “action team” for the arrests of the final fugitives from The Hague. The failure to arrest Karadzic and another high-profile defendant, Ratko Mladic, the Serb military leader in Bosnia during the war, had long been an embarrassment for both the Serbian government and the ICTY, as well as a source of tension between domestic officials and European leaders. The ICTY has mostly been dependent on governments of the former Yugoslavia to arrest and turn over suspects, and the European Union conditioned Serbia’s candidacy for EU membership on compliance to these obligations. Last year, Serb security services arrested both Mladic and the last ICTY fugitive indictee, Goran Hadzic, a Serb leader in Croatia during the war, and transferred them to the tribunal. In February, then-President Boris Tadic presented Vukcevic and the action team with an honor on Serbia’s day of statehood in recognition of their work.
In the domestic War Crimes Chamber, Vukcevic and his team of eight deputies have also notched some impressive trial victories, with final convictions of 58 individuals for a total of 668 years in prison. Most of the cases have targeted Serbs despite long-held concerns that national courts in the region might be unable to prosecute their ethnic majorities. The office has received praise from a range of international observers, including officials from the ICTY, the European Union and the U.S. But the office has also faced criticism at home for a dearth of cases against higher-level army and police officials who have political influence in Serbia; most of the defendants have been lower-level offenders or members of paramilitary and territorial defense units outside the formal state apparatus. Recent investigations have also been complicated by allegations that the witness protection unit for war crimes cases, housed within the police forces, has been pressuring witnesses not to testify.
Perhaps the harshest critic of the office is Natasa Kandic, who is among the most renowned human rights advocates in Europe and the head of the Humanitarian Law Center, a nongovernmental organization in Belgrade. Kandic believes that the prosecutor's office lacks the political will to prosecute higher-ranking officials. Vukcevic's office has publically disputed this notion, contending that it resists political pressures and will bring cases against any individuals “regardless of their respective positions” if it can do so based on the evidence.
“The very fact that a number of Serbs have been convicted for war crimes against non-Serbs, that the Serbian judiciary and the state have taken a stand behind the victims in these cases and sent the perpetrators to prison, that is very important for reconciliation,” Ivan Jovanovic, the Belgrade-based war crimes monitor at the Organization for Security and Cooperation in Europe, or OSCE, said in an interview. “But certainly there will be many people who deserve to be prosecuted for what they did during the wars who will pass away in their own beds, surrounded by their family members, without spending a single day in prison. And that is not a good thing.”
The mixed results and ongoing challenges in Serbia undoubtedly offer lessons for future accountability efforts in turbulent post-conflict domestic settings, particularly for efforts that may benefit from complementary relationships between international and domestic tribunals – as the ICTY and the former Yugoslav republics have attempted. Such scenarios are particularly relevant in the age of the ICC. Despite its jurisdiction over recent conflicts, the ICC is a self-described “court of last resort,” with national courts obligated to try their own cases whenever possible. Just what those lessons are remains a matter of debate, both within Serbia and internationally among organizations that have a stake in promoting prosecutions for serious human rights violations.
The uncertainty of Serbia’s commitment to confronting its past may have intensified with the recent election to the presidency of Tomislav Nikolic, the leader of the Serbian Progressive Party who defeated Tadic, an official widely seen as pro-Western and generally praised for prioritizing cooperation with the ICTY. Tadic had taken other steps to recognize Serb war crimes by attending ceremonies at the sites of Srebrenica and Vukovar, the site of another massacre, in Croatia. Nikolic, in contrast, was once a high-ranking member of the ultranationalist Serbian Radical Party, whose former leader, Vojislav Seselj, is also on trial at The Hague for alleged wartime crimes. Though he has softened his nationalism in recent years and favors EU integration, Nikolic immediately caused concern after his election by stating that the Srebrenica massacre did not amount to genocide. Milosevic’s former spokesman, Ivica Dacic, is now Serbia’s Prime Minister.
With all suspects finally in custody, the ICTY estimates that all trials and appeals will finish by 2016. In an interview, Vukcevic declined to estimate how long the domestic system will need to fulfill its mandate, though he did not think it would take decades, as some observers have thought.
"What matters most … is the political willingness – or the readiness of society – that a consensus be reached over this issue," Vukcevic said. "I believe that, by having the ICTY indictees transferred to The Hague, we have demonstrated as a society our readiness for catharsis."