Hadzic to The Hague: a success for international justice?

Goran Hadzic, advertised as the last prime suspect of the Yugoslavia Tribunal, was arrested on Wednesday last week and had his first appearance before the Tribunal in The Hague on Monday this week. Nothing but a success for international justice, one might say. However, in international justice there is no such thing as success or failure. The presence and practice of the court for which Hadzic is brought, officially the International Criminal Tribunal for Former Yugoslavia ICTY, serve many purposes beside justice. International justice as a concept already comprises dazzlingly many aspects from moral, economic, legal and political origin. But even while limiting ourselves to trials before the international tribunals in the world today, a closer look will reveal much more than just the proper punishment of individuals found guilty after a fair trial.

The arrested person, mr Hadzic, was a leader of Croatian Serbs who had based their policy on segregation and political independence for their people from the Croatian Croats. In the pursuit of this cause mr Hadzic allegedly committed serious crimes or was responsible for crimes committed by others, leading to many deaths and ethnic violence in the course of the Balkan war in 1991-1995.

In the year 1993 the ICTY was created by the UN Security Council as an instrument to establish peace and rule of law in the area of the former Yugoslavia by bringing to justice the most important leaders who had relied on systematic violence, ethnic cleansing, genocidal policies and war crimes. For a list of many suspects a warrant for arrest was issued, but it took the ICTY many years and buckets full of money to work its way down the list. A number of important persons was sentenced to long terms of imprisonment. For prime suspects, such as Karadzic and Mladic, the court had to wait very long. The trial of Milosevic dragged on many months and was concluded not by a judgment from the court, but by the suspect's demise. Regularly the initiative to establish this tribunal was questioned in terms of the purpose all the effort and money.

International war tribunals are sent into the field with high expectations. Their work should bring justice and rule of law to a conflict area, assist in finding the historical truth and contribute to reconciliation between former enemies. These high hopes I find difficult to share. Living up to such expectations would already be very hard for a national, well established criminal justice system. For international adjudication mechanisms such an achievement is almost unattainable. More often than not the tribunals' legal frameworks are defective, not firmly based on a shared tradition of criminal justice and a compromise in terms of procedure and competencies. Moreover, the financial basis for many courts' work is instable and one often has to make ends meet with suboptimal solutions. These observations however should not inhibit us from respecting the endurance of all those, working in the ICTY structure, including the prosecutor's office, but that is not the issue now.

Where the justice mechanism itself already shows many flaws in term of efficacy and efficiency, its deployment by the political community raises additional doubts. The Hadzic arrest provides a clear example of the use of an international justice mechanism for non related political purposes, as was revealed by the Serbian president Tadic at a press conference on the day of the arrest. He assumed that Serbia now fully qualified for EU membership, since it had fulfilled the outstanding legal and moral obligations towards the Union. There is an obvious political line from this arrest back to the difficulties the ICTY experienced in its first ten years. It would have shamed the founding fathers of the tribunal, European states and the U.S.A. alike, when the prime suspects, such as Milosevic and his Serbian co-conspirators in Croatia and Bosnia, would have been able to escape being brought to The Hague. Pressure had to be put on Serbia, supposedly the hide-out for many war crime suspects. The ambitions of the Serbian government to join the EU family provided a happy occasion to organize this pressure, as civilized states in the EU are supposed to hold international justice as provided by the ICTY in high esteem. The arrest and surrender of Hadzic serves the EU ambitions of the Serbian government and is consequential to the way in which Europe and the USA tried to uphold the credibility of the ICTY initiative and its funding. International justice as a trade off for EU membership. This is not very new, one can cynically conclude, but it needs to be stated again that this will not serve the reputation of the ICTY justice, particularly not inside the Balkan states. "Our former leaders are in The Hague only because our present government wants to join the EU", the man in the street will readily believe and not wholly unjustified. The system of the ICTY in The Hague is supposed to bring about national reconciliation there. For that purpose keeping Hadzic from the court was not an option, but the trade off is also counterproductive to the ambitions of international criminal justice for bringing peace to the region. Politicians and diplomats should learn to be aware of this effect at a next occasion and not only dwell in the supposed success for international justice, now that the ICTY list of suspects is finally cleared.

More info at the ICTY website.

by Evert Stamhuis, Dean and full professor criminal law and procedure OU Netherlands