After more than 24 years of operations, the United Nations tribunal set up to prosecute crimes committed during conflicts in the Balkans in the 1990s, has now completed all judicial work, the court’s President told the UN Security Council on Wednesday.
“Despite all the sceptics, the naysayers, the deniers who, from the very beginning, embarked on a campaign against the Tribunal and have been at pains to question our legitimacy and integrity and portray a doomsday scenario, I am proud to appear before this esteemed Council today and say: mission accomplished,” declared Carmel Agius, President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), in his final briefing to the 15-member body.
Recalling the Security Council’s decision to create the Tribunal back in May 1993, Mr. Agius stated: “In retrospect […] the establishment of the ICTY was one of the international community’s proudest moments.”
Noting that the body had developed a completion strategy and delivered judgements in the final trial case against Ratko Mladic on 22 November and the final appeal case against Jadranko Prlic et al. on 29 November, Mr. Agius said that in supporting the creation of the court, his predecessors had put their signature on an important page in the history of international justice and the fight against impunity.
There was another history, however, he said, namely of those who were afraid to accept the Tribunal and even denounced it, “of those who did not choose to fight impunity, but, for reasons of political or personal gain, blind nationalism and ethnic hatred,” preferred immunity and even glorified those who had committed atrocities.
The Tribunal’s achievements did not begin and end in The Hague, where the body is headquartered, Mr. Agius continued. He was disturbed by the numerous crimes yet to be prosecuted before domestic courts in the Former Yugoslavia. The rise of revisionism and nationalism throughout the region could not be ignored.
“Do not delude yourselves; the absence of war does not mean peace,” he said. Ending impunity for mass crimes is not the preserve of any one institution – it is a common goal that ties all together in the shared quest for justice, peace and stability.
In closing, President Agius stated: “As the international community now looks on while mass crimes continue to take place, even as I speak, and geopolitical roadblocks impede any kind of comprehensive justice solutions, we must not forget the political courage that sparked the ICTY’s existence, the Tribunal’s long trajectory, and the need to stay the course.”
Beyond the Tribunal’s success, reconciliation remains a significant challengeTheodor Meron, President of the International Residual Mechanism for Criminal Tribunals, affirmed that the Tribunal had made plain that even complex trials could and must be conducted in accordance with the panoply of due process guarantees. As a result, the principles of international law were stronger and, “accountability for grave crimes is increasingly the expectation rather than the exception.”
Describing the current activities of the Residual Mechanism, which will maintain the Tribunal’s legacy and carry out its remaining functions, he said it is “serving as a new, effective and efficient model of international court” in carrying out duties such as preparations for administration disposition of records, in further developing its legal and regulatory framework and working on provision of assistance to national jurisdictions.
The fulfilment of the Mechanism’s mandate depends on the ongoing support of the Council and the broader international community and on the commitment to all concerned to the invaluable legacies of the tribunals for Rwanda and the former Yugoslavia.
In his remarks, the Prosecutor of the International Residual Mechanisms for Criminal Tribunals, Serge Brammertz, said his Office remains focused on expeditiously completing the limited number of trials and appeals transferred from the ICTY and on locating and arresting the remaining eight fugitives indicted by the International Criminal Tribunal for Rwanda (ICTR).
He acknowledged that the Tribunal failed to achieve reconciliation in the Former Yugoslavia, where many still viewed convicted war criminals as heroes while victims and survivors were ignored and dismissed. “The reality is that there is still no true will within the region to accept the immense wrongdoings of the past and move forward – sadly, most of all among the political leadership,” he said.
Too many people listen to war criminals, who hide behind claims of collective responsibility, when in fact no community bore responsibility for what those men had done. He emphasized that justice is an essential precondition for achieving reconciliation.
Published on UN News Centre on December 6, 2017
Michelle Jarvis, who co-edited a book entitled ‘Prosecuting Conflict-Related Sexual Violence at the ICTY’ with the International Criminal Tribunal for the Former Yugoslavia’s chief prosecutor Serge Brammertz, told BIRN in an interview that Former Yugoslav states need a comprehensive policy for addressing wartime sexual crimes, with the victims at the centre of it.
According to Jarvis, out of a total of 161 people indicted by the ICTY prosecution, there was a sexual element in 93 cases.
“For example, in some cases rape was charged as the crime of rape, in others it might have formed part of a persecution charge, or rape might have been part of the coercive environment leading to expulsion crimes,” she explained.
She said that the book was intended to help legal professionals negotiate the difficulties of prosecuting such crimes.
“We felt that there were very few resources for investigators and prosecutors on the topic of conflict-related sexual violence, so we wanted to rectify that,” she said.
“But in terms of the big messages, we focus a lot on the misconceptions we encountered about conflict-related sexual violence that mean these crimes are not always given the priority they deserve or that causes us problems in linking sexual violence crimes to other violent crimes during conflict,” she added.
The book also looks at institutional strategies, such as policy development and training that help a prosecutor’s office work on such cases more efficiently.
“We endorse the goal of victim-centred prosecutions and illustrate what that meant in practice in our cases at the ICTY. We explore how to properly contextualise sexual violence crimes in the broader conflict to make sure we accurately describe the harm caused to the victims and hold accountable a range of perpetrators including, in appropriate cases, senior military and political officials,” she explained.
Some of the ICTY’s key verdicts in related to sexual violence; Jarvis cites the judgements in the cases of former Bosnian Serb military policeman Dragoljub Kunarac and former Bosnian Serb politician Milomir Stakic.
Kunarac was sentenced to 28 years in prison for enslaving, raping and abusing women and girls in Foca during the war, and Jarvis explained that his case was the first ever to focus exclusively on conflict-related sexual violence.
In the Stakic case meanwhile, the court sentenced the defendant to 40 years for wartime crimes in Prijedor and accepted that sexual violence formed part of a common criminal plan to expel the targeted population of Prijedor using whatever means necessary.
“This is such an important reminder of the strategic role that sexual violence played in the conflict and of the fact that senior officials who have not physically committed the rapes can nevertheless be held responsible,” Jarvis explained.
Lessons for Balkan prosecutors
According to Jarvis, the Bosnian prosecution has so far dealt with 174 cases which involve charges of sexual violence, including 58 current cases, out of its total of 675.
“I think that like all of us working at the international level, prosecutors in Bosnia and elsewhere in the region face significant challenges in establishing accountability for conflict-related sexual violence,” she said.
“Some of the challenges are very similar to the ones we faced [at the ICTY] and some of them take on different dimensions in the local context. I think the most important thing is to be aware of the challenges and to be committed to overcoming them. If we approach our work with this attitude, then everything is possible. I see lots of encouraging signs of progress,” she added.
An OSCE report published on Wednesday that said that the Bosnian judiciary has made more effort to prosecute cases of wartime sexual violence over the past three years.
From 2014 to 2016, about a third of war crimes cases before Bosnian courts involved sexual violence, in comparison to only a quarter of cases in the period from 2011 to 2013, the report said.
However, many victims of wartime sexual violence are still seeking justice over two decades after the conflict, it cautioned.
Jarvis said that the book that she and Brammertz edited was translated into Bosnian partly to help local prosecutors.
“We wanted our practical and technical insights to be accessible to the criminal justice actors in Bosnia and elsewhere in the region who are now carrying on the process of establishing accountability for conflict-related sexual violence crimes,” she explained.
“As one concrete measure arising out of the book, we have established the Prosecuting Conflict-Related Sexual Violence Network through the International Association of Prosecutors. Our aim is to use the Network as a way of channeling our growing global expertise from jurisdictions around the world into future prosecutions for conflict-related sexual violence,” she added.
The translation was also a way to honour the victims who suffered during the Bosnian war.
“We wanted the victims of sexual violence who so courageously stepped forward to give statements to our office or to testify in our cases to see how they have helped to shape a new global awareness on conflict-related sexual violence,” she said.
“So many of them testified not just once but multiple times, despite the enormous toll this took. Very often, they expressed the view that they wanted to contribute to a world where no- one else would have to go through what they went through. We hope that they can see in the pages of our book, just how much they have contributed towards doing just that,” she added.
Jarvis also noted that sexual violence investigations are difficult for prosecutors.
“I think it is very hard for anyone working on war crimes cases not to be deeply affected by the work that we do,” she said.
“And we have seen that sexual violence cases can take a particularly heavy toll because of the degree of trauma inflicted on the victims and the anguish that can be caused by negative reactions towards the victims by families and communities.”
Published on Balkan Transitional Justice on June 22, 2017.