By ERIC GORDY
Published: June 2, 2013
The International Criminal Tribunal for the Former Yugoslavia decided on Thursday to acquit two Serbian state security officials, Jovica Stanisic and Franko Simatovic. The acquittal is one of a series of dramatic reversals by the tribunal over the last year, and it fits into the evolution of an institution that came in with a squeak, banged around for a bit, and looks likely to go out with a whimper.
Stanisic and Simatovic had the largest hand in creating, training, arming, financing and directing several of the paramilitary groups responsible for a large number of crimes in Croatia and Bosnia-Herzegovina. The tormented reasoning of the tribunal’s 800-page verdict offers some fascinating reading: It affirms that crimes were committed and describes them in excruciating detail. It names the victims, names the perpetrators, and in most cases details the connections between the accused parties and the direct perpetrators.
Then it declines to convict, on the ground that the evidence does not show that the support provided to the criminals was “specifically directed towards the commission of the crimes.”
Although the chamber affirms that a joint criminal enterprise to create ethnically homogeneous populations existed, it rejects the theory that concrete contributions to the realization of this enterprise by themselves constitute guilt. Instead it applies a standard that demands a type of evidence that no major criminals have ever produced in any conflict: documentation indicating specific instructions that crimes be committed.
The narrowness of the standard is suggested by a baffling sentence in the verdict: the tribunal’s majority “considers Stanisic’s reference to killings and his remark that ‘we’ll exterminate them completely’ to be too vague to be construed as support for the allegation that Stanisic shared the intent to further the alleged common criminal purpose.”
How did the tribunal get to the point where, dropping the ambition to bring justice to victims, peace to the region, and a measure of truth to the story of the violence in the former Yugoslavia, it is now exonerating people who directed large covert enterprises to commit crimes?
The answer lies partly in the decision in February by the appeals chamber to acquit Gen. Momcilo Perisic, the Yugoslav army chief of staff who was accused of facilitating crimes committed by the Bosnian Serb army. The prosecution argued that by arming, financing and providing officers and intelligence to the force, Perisic had made genocide and crimes against humanity possible. The appeals chamber found that absent specific evidence that Perisic intended that the assistance be used to commit crimes, his conviction could not be upheld.
This is the “specific direction” standard introduced this year by the presiding judge, Theodor Meron, an American, and cited as the principal authority in Thursday’s decision to acquit.
In a related decision last November, the appeals chamber decided to acquit Ante Gotovina and Mladen Markac, two Croatian generals accused of compelling the Serb civilian population to flee Croatia by the use of indiscriminate military force. In essence the appeals chamber (also chaired by Judge Meron) found that there exists no legal standard that allows courts to distinguish between legitimate and illegitimate military targets.
These dramatic reversals follow on a decade of ICTY jurisprudence that sought to establish the rule of law over military and paramilitary activity in armed conflicts. Along with several other convictions, the first-instance convictions of Perisic, Gotovina and Markac looked like landmarks in the delineation of command responsibility and the protection of civilians.
The major convictions after 2000 followed an initial dry spell for the tribunal which, founded in 1993, spent years with a low caseload, inadequate budget and no power to compel the delivery of suspects or witnesses. It slogged through the 1990s trying to build precedent through prosecutions of low-ranking officers, most of whom happened their way.
The changes of regime in Serbia and Croatia in 2000 gave the tribunal access to more prominent suspects, and ambitious prosecutors set out to reveal and prosecute the chains of command behind the large-scale crimes of the war. The tribunal tried and sometimes convicted heads of state, senior generals and prominent ground-level perpetrators. Its convictions included major precedents for the crime of genocide, for the status of sexual violence as a violation of international law, and for modes of responsibility for major crimes.
By the time the tribunal issued its last indictments in 2005, many observers felt comfortable arguing that it represented a successful effort to bring the rule of law to a field where it had only rarely dared to tread.
Probably we will not know completely the reasons the judges decided to reverse course for the tribunal’s final stretch until it has closed its doors and key personalities release their memoirs. One possibility is that while the establishment of legal standards looked fine for small and marginal states like the ones involved in the Yugoslav conflict, it threatened the flexibility of more powerful states likely to be involved in conflicts in the future.
The rejected bases of responsibility in the three major acquittals in the last year included targeting civilian objects and arming and financing forces that committed crimes. It does not take a large stretch to see the implications that precedents in cases like this would have for the activity of powerful states in countries like Syria and Afghanistan.
Some of this reasoning might look like an invitation to conspiracy theorists to look for sinister influences on the tribunal’s decision-making. But no conspiracy is needed to explain that judges represent the states that nominated them to the tribunal, and that law is a conservative profession. To an outside observer it looks as though the International Criminal Tribunal for the Former Yugoslavia was on its way to establishing groundbreaking precedent, saw what this implied, and jumped backward.
The final round of tribunal jurisprudence weaves a sad end to the story of a court that was founded with little hope, encouraged some, then jettisoned it all.
Eric Gordy teaches politics and sociology of Southeast Europe at University College London. His most recent book is “Guilt, Responsibility and Denial: The Past at Stake in Post-Milosevic Serbia.”