The politics of justice at The Hague

As the war crimes trial of the former Bosnian Serb leader Radovan Karadjic, which resumed on Tuesday January 28 in The Hague, was due to reach a milestone moment, other trials such as that of Vojislav Seseljare, according to experts, were likely to come to a dead end.

Seselj, leader of the ultranationalist Serbian Radical Party, surrendered voluntarily 11 years ago and has since been in the detention unit of the International Criminal Tribune for the former Yugoslavia (ICTY). He is charged with nine counts of war crimes and crimes against humanity for atrocities carried out in an effort to expel non-Serbs from parts of Croatia and Bosnia between August 1991 and September 1993. He is still awaiting the verdict for alleged war crimes. According to a number of legal experts, his trial has come to a dead end.

Judgement comes with death

Recently, Seselj has been transferred to a Hague hospital where he underwent surgery for colon cancer, and he is now awaiting chemotherapy. Meanwhile the newly appointed judge in the trial chamber, Mandiaye Niang from Senegal, has had to “familiarise” himself with the case (18,000 pages of transcript, 1,399 exhibits, hundreds of videos, 97 witnesses, etc). This will take at least six more months [Sr]. Then the trial will pick up where it left off: The judges were deliberating the verdict, when Danish Judge Frederic Harhoff who had worked on the Seselj Trial Chamber since the beginning of the trial, was disqualified. 

Many legal experts agree with Seselj[Sr] that it is impossible for a new judge without any experience whatsoever at the Hague Tribunal to catch up with seven years of proceedings and review the numerous documents that were produced during the trial and be able to decide on a verdict.  

Even US judge Theodor Meron, president of the ICTY, admitted that he does not know what will happen with the Seselj case or when the verdict will be reached. He mentioned that in his address to the UN Security Council, which established the ICTY 20 years ago. Meron is also the president of the International Residual Mechanism for Criminal Tribunals, an institution which will close out all ongoing proceedings and appeals once the ICTY shuts down at the end of 2014.  

The Serbian public has a very negative view of the Hague Tribunal. It considers it biased and virulently anti-Serb – “In the Hague, all are considered innocent until proven Serb,” says the prominent Belgrade writer Matija Beckovic[Sr]) – and the Seselj case is seen as proof of the extreme perversion of the Hague justice.

“Only in Guantanamo, prisoners are held that long without judgment, and this is a court established by the UN Security Council,” says the newspaper Politika [Sr] from Belgrade.

Seselj is not the only one who fell gravely ill waiting for judgment. The trial of Slobodan Milosevic, former president of Serbia and Yugoslavia, was referred to as the “trial of the century”. It started in 2002 and lasted until March 2006, when it ended with the death of Milosevic. 

Milosevic’s death came just six days after a fellow Serb prisoner at the Hague, Milan Babic, committed suicide. Several others were provisionally released and died several days afterwards, and a couple of those indicted have hanged themselves in their cells in the detention unit in Scheveningen, about three kilometres away from the court.

Seselj, who is still the leader of the far right Radical party, always repeated that the ICTY is a political court created by the West to punish the Serbs. He used all his skills to disrupt the court.  

“It might take its physical toll on me, but I’m enjoying it. I’m having the time of my life,” he used to say.

Since the proceedings in the Tribunal were so complicated and longwinded, the press only reported on certain milestones. Occasionally, criticism was raised in the UN due to the ineffective, costly and extremely cumbersome proceedings. This was supposed to be the “cornerstone” of international justice and a blueprint for the International Criminal Court (ICC). The price tag to date for this questionable justice is upwards of $4bn.

Questionable justice

Ironically, the decline in the credibility of the Tribunal started with the trial of Milosevic, who was the first sitting head of state indicted for war crimes. Not only was he accused of all the atrocities, war crimes and genocide that happened in three different wars during the bloody disintegration of ex-Yugoslavia over 10 years, but both his indictment and the process were conducted in such a clumsy manner that a final judgment would have been impossible to reach, if he hadn’t died. 

The proceedings did not follow the chronology of conflicts in ex-Yugoslavia but started with Kosovo (1999), went back to Croatia (1992) and then to Bosnia (1993-1995). Wikileaks revealed that as early as 2003, Meron voiced concern about former Chief Prosecutor Carla Del Ponte’s performance in terms of bringing the trials to closure. He asked that her mandate not be renewed.

The recent disqualification of Judge Harhoff has revealed serious conflicts inside the Tribunal among judges and legal experts regarding fundamental concepts of justice. Harhoff sent a private email to about 60 people severely criticising the ICTY Appeals Chamber for the controversial acquittal in the case of the Croatian general, Ante Gotovina, claiming that Meron exerted enormous pressure on his colleagues to obtain the acquittal.

He also stressed that the Tribunal has shifted course as a result of external pressure from “the military establishment of certain powerful countries”. According to the New York Times this caused a mini rebellion against Meron among about half the judges and lawyers in the Tribunal. Harhoff’s email was leaked to a Danish newspaper resulting in the worst scandal to engulf the ICTY in its history. 

These reversals after a decade of ICTY jurisprudence that sought to establish the rule of law over military and paramilitary activity in armed conflicts came too late for those already sentenced and who had served their time under the initial guidelines.

Full cooperation with the Hague Tribunal was for decades sine qua non for each step in Serbia’s long road to Euro-Atlantic integration. With the capture of the Bosnian Serb commander Ratko Mladic charged with genocide in Srebrenica and Goran Hadzic, the ex-president of the so-called Serbian Krajina in Croatia, Serbia has fulfilled its obligations, but the animosity towards the ICTY has endured.

As Tomislav Nikolic, president of Serbia, pointed out[Sr] recently at the UN, the ICTY sentenced Serbs to 1,150 years in prison while members of other ethnic groups were sentenced to a total of 55 years for crimes against Serbs, although there is no significant ethnic disproportion among the numbers of casualties in the Yugoslav wars.

However, it seems that the international community and those who initiated the formation of the ICTY no longer have the time or the patience to discuss the criteria for justice in the Hague, but wish that the Tribunal ceases its operations according to the Completion Strategy without further discussion. The case of Seselj and the inability to bring his trial to closure in a reasonable time frame could seriously impact the goal of shutting down the Tribunal quietly.

Zorana Suvakovic is a Belgrade-based journalist, columnist and editor, working for the Serbian newspaper Politika. She was reporting from the Hague Tribunal as a special envoy for Politika from 2000 to 2004.