International Tribunals for Yugoslavia and Rwanda: Doing More Good than Harm

by William A. Schabas M.A. (Toronto), LL.D. (Montreal), Professor of Human Rights Law, National University of Ireland, Galway and Director, Irish Centre for Human Rights.

This article appeared in ECRD Volume 3, Number 2 (September 2000)

REVIEWING: Paul J. MAGNARELLA, Justice in Africa, Rwanda's Genocide, Its Courts, and the UN Criminal Tribunal, Aldershot: Ashgate, 2000, xii, 154 pp. Index. Biblio. Hb.: £35.00; ISBN 0-7546-1073-x; Aleksandar FATIC, Reconciliation via the War Crimes Tribunal?, Aldershot: Ashgate, 2000, ix, 117 pp. Biblio. Hb.: £35.00; ISBN 1-84014-487-4.

IN THE FIRST HALF OF THE 1990s a window of opportunity opened for the United Nations Security Council that generated a flurry of innovation within the scope of its mandate under Chapter VII of the Charter of the United Nations. One of the more intriguing if ephemeral experiments was the establishment of ad hoc international tribunals to deal with serious human rights in the Former Yugoslavia and in Rwanda. Since then, sclerosis has returned to the Council, and more recent suggestions to create additional tribunals for the Cambodia, East Timor and the Congo have floundered on the classic obstacle, the threat of a veto by one of the five permanent members.

The two existing tribunals are now thriving international institutions. Together they consume nearly a quarter of a billion dollars each year. The tribunals were in many ways a spin-off of long-standing attempts to create a permanent international criminal court. They actually made an indispensable contribution to the process that engendered them, serving as a laboratory for a variety of procedural and substantive issues, and providing a reassuring model of an independent but responsible international prosecutor. In July 1998, the Rome Statute for the International Criminal Court was adopted, completing a process that began at Nuremberg in 1945. Even if the Security Council is now incapable of creating additional ad hoc tribunals, at least for the time being, we have the promise of a permanent institution, expected to begin operation in 2001 or 2002, once sixty States have ratified the Rome Statute.

Whether ad hoc or permanent, international tribunals venture onto terrain that has traditionally been the domain of diplomats and warriors. Their raison d'être is much the same as that of the Security Council, to promote international peace and security, allegedly encouraging reconciliation of transitional societies by methods of accountability hitherto reserved principally for common criminals acting individually. Does this work? These two rather brief monographs produced by Ashcroft Publishing suggest some preliminary answers.

Paul Magnarella's study of efforts to prosecute those responsible for the Rwandan genocide is by far the better of these works. Magnarella provides a useful overview of the background of the Rwandan genocide, then looks at the work of the International Criminal Tribunal for Rwanda as well as the noble if frustrating efforts of Rwanda's own justice system. There is nothing particularly earth-shaking in his observations, but as a concise introduction to the problem it does the trick.

A pair of chapters at the end of the book describes the first two judgments of the Trial Chambers of the Tribunal, which were issued during the first week of September 1998. Essentially, Magnarella paraphrases the texts of the decisions, which are in any event readily available on the internet. He unfortunately seems unaware of the debates, both factual and legal, provoked by the Tribunal's first rulings. Elsewhere, too much of the work seems based uniquely on journalistic sources, apparently culled in a troll of the Lexis data base. For example, his discussion of the debates that led to the establishment of the Tribunal is drawn from a story in the Washington Post. Yet the procès-verbal of the Security Council, which is nowhere cited, offers a more complete - and accurate - account.

There are also some really unacceptable mistakes. At page 45, he says that "[b]ecause the Security Council is not a legislative body, it had no competency to enact substantive law for the Tribunal." In fact, he should say precisely the opposite. Because article 25 of the Charter of the United Nations gives the Council law-making powers, it was able to create the Tribunal. Moreover, the Council had the power to proscribe acts that were hitherto widely believed to escape international criminal sanction, namely violations of the laws and customs of war committed during non-international armed conflict.

But alongside the Fatic book on the International Criminal Tribunal for the Former Yugoslavia, Magnarella's modest work looks positively stellar. Aleksandar Fatic's pamphlet - there is no better word for it - is riddled with errors, unsupported claims and unconvincing polemic. It seems inconceivable that Ashgate Publishing submitted the manuscript for peer review, or even had it vetted by a knowledgeable editor. Fatic is based in Belgrade, and his appreciation of the work of the Tribunal largely echoes that of more nationalistic Serb journalists and politicians. Basically, he claims the Tribunal's work has been distorted by an unfair focus on Serb atrocities, whereas others - Croats and Bosniaks - ought also to be targeted if the real goal is reconciliation. Fatic seems unaware of this, but extremist Croat journalists and politicians say the same thing.

Many parts of the book have little to do with the Tribunal itself. For example, the final chapter, entitled "NATO and the ICTY", seeks to demonstrate some connivance of the Tribunal in the pursuit of NATO's Kosovo agenda. After pages of criticism of NATO, much of it legitimate by the way, he concludes by alleging what he promised to prove, namely that "NATO appears to play the initiating, the enablement [sic] and the controlling role for the ICTY". But nowhere is what Fatic calls "political synergism" between NATO and the Tribunal actually demonstrated. Another chapter is devoted to "The First Indictments and What They Show". Here, Fatic painstakingly lists the initial indictments of the Tribunal; in most cases, he doesn't even tell us the nationality of the accused. Then, in another unsupported conclusion, he charges that "[t]he ICTY has so far demonstrated little or no divergence from the foreign policies of the great powers, especially the USA".

Nowhere does he consider or discuss the actual bread and butter of the Tribunal, namely its trials, of which there have been several. Some description of the important Celebici trial, whose accused were all Croats, would have been in order, although it would hardly have supported Fatic's hypothesis. Also he might have considered the showdown between the Tribunal's Prosecutor and the Tudjman regime over orders to produce documents considered by the government of Croatia to raise matters of national security in the Blaskic case. Poor Blaskic, a loyal Croat general, has thus far received the stiffest sentence of all, forty-five years, and most Croats now believe that the Tribunal is picking on them!

As is sometimes the case with overly polemical academics, once the allegations are stripped away, the little substance that remains is misleading and even incorrect. He makes a foray into public international law, attempting to describe the crimes over which the Tribunal has jurisdiction. But when he states that the Statute criminalizes "breaches of the 1907 Hague Convention", Fatic seems woefully unaware of the Tribunal's seminal decision, the Tadic jurisdictional ruling of October 2, 1995, that greatly enlarged the scope of such serious violations of the laws and customs of war to go far beyond the narrow terms of the 1907 Hague Convention. He doesn't even mention the term "crimes against humanity" in his discussion of article 5 of the Statute, obviously ignorant of its significance. There are many other legal errors. The Genocide Convention was adopted, not signed, in 1948, and it is article VI, not article IV, that calls for the creation of an international criminal court. The Tribunal was established by Security Council Resolution 827, not Resolution 808. Here Fatic is clearly in over his head, although this doesn't seem to temper his pontificating. Caveat emptor. Any reader seeking a brief but authoritative summary of the Tribunal is hereby warned.

Fatic criticizes the Tribunal because of unequal prison conditions for convicted war criminals, noting that some will be sent to "civilized" penal regimes in Europe while others may be lodged in less attractive establishments in Pakistan and Turkey. This is simply not true. At the time of publication of Fatic's book, only one convicted prisoner, Dusan Erdemovic, was serving a sentence, and he was purging his five-year term in Norway. All of the other accused were still in provisional detention in The Hague under conditions that rank among the best in the world.

The Fatic book ought never to have been released by a reputable academic publishing house. Unfortunately, therefore, the intriguing question that is announced in the title of the work goes unanswered. Of course, aside from reconciliation, the Tribunals are also expected to deter. Criminologists know the difficulty of demonstrating whether deterrence is actually effective. How can we prove that were it not for the Tribunal, a crime would otherwise have been committed? Certainly the threatened prosecution of Serb leaders, announced by Louise Arbour prior to the Kosovo bombing campaign, seems to have little effect on the Milosevic regime.

Hostility within the Former Yugoslavia to the work of the Tribunal is discouraging, though perhaps inevitable. After all, post-war Germany took many years to accept the legitimacy of the Nuremberg trials. Within Rwanda, the promised dividends of international justice for civil society seem more positive. In September 1998, when the first judgment of the International Criminal Tribunal for Rwanda was released, I found myself lecturing in criminal law to young Rwandan law students at the national university in Butare. We suspended the regular class and spent the day listening to the judgment of Jean-Paul Akayesu on the radio, then discussed and analysed it. It seemed to me that after years of frustration with justice as a method of accountability, young Rwandans finally felt that the truth had been established. Scurrilous claims that the 1994 genocide had been exaggerated for political ends were put to rest. The authoritative voice of historical accuracy was a Tribunal whose judges were above reproach and whose independence and impartiality was impeccable. The wounds in both Rwanda and Yugoslavia will take decades to heal completely. But from this perspective, judgments like those in the Akayesu case, or the equivalent pronouncements of the Yugoslav tribunal, seem to be doing more good than harm.

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