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Demystifying Political Violence: Some Bequests of ICTY and ICTR

Part of: International Criminal Tribunals for the Former Yugoslavia and Rwanda: Broadening the Debate

Published online by Cambridge University Press:  20 January 2017

David Luban
David Luban*
Affiliation:
Georgetown University Law Center
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As Sara Kendall and Sarah M. H. Nouwen rightly notice, “legacy” is a big word, and it may be too soon even to begin to evaluate the legacies of the international criminal tribunals. Legacies are whatever future generations take from the tribunals. That, obviously, is in their hands, not the hands of the tribunals. So the question of legacies is more properly a question of bequests, and the inquiry must be a modest one: how do we evaluate the successes and failures of the tribunals in the here and now rather than the further future? Failures matter as well as successes, and as in science, failures can be as instructive and useful as successes. For example, many observers concluded that the tribunals, operating in The Hague and Arusha without an initial ground game in former Yugoslavia or Rwanda, were too far removed from the peoples who experienced the crimes; that perception helped motivate the movement toward hybrid tribunals. If that is right, the hybrid model counts amongthe “legacies” oftheInternational Criminal Tribunal for the Former Yugoslavia (ICTY)and the International Criminal Tribunal for Rwanda (ICTR), if only in the negative way that they exposed a problem the hybrids tried to remedy. As another example, Kendall and Nouwen remarkthat the impunity of the RPF has also become part of ICTR’s legacy. That too would be an instructive failure—instructive, in this case, as a foretaste of how difficult it is to prosecute cases against an intransigent government in power, a lesson that the International Criminal Court’s (ICC)troubles in Sudan and Kenya confirm.

Type
Symposium on the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Broadening the Debate
Information
AJIL Unbound , Volume 110 , 2016 , pp. 251 - 257
Copyright
Copyright © American Society of International Law 2016

References

1 Sara Kendall & Sarah M. H. Nouwen, Speaking of Legacy: Toward an Ethos of Modesty at the International Criminal Tribunal for Rwanda, 110 AJIL 212, 213, 217 (2016).

2 Id.at 221.

3 Id.at 222-23.

4 Martti Koskenniemi, Between Impunity and Show Trials, 6 Max Planck UN Y.B. 1(2002).

5 The trial court in Eichmannemphasizedthis cautionary point in its judgment, CrimC (Jer) 40/61, Attorney General v. Adolf Eichmann, para. 2 (1961) (Isr.). For a bleak assessment of ICTR and Special Court for Sierra Leonefact-finding, see Nancy A. Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (2010).

6 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, paras. 78-111 (Sept. 2, 1998).

7 Id. at paras. 112-129.

8 Sangkul Kim, Atheory of Collective Genocidal Intent 81-84 (2015).

9 Prosecutor v. Šešelj, Case No. IT-03-67-T, Judgment, paras. 192-193 (Mar. 31, 2016).

10 Prosecutor v. Šešelj, Case No. IT-03-67-T, Partially dissenting opinion of Judge Flavia Lattanzi, para. 39 (Mar. 31, 2016).

11 Kendall & Nouwen, supra note 1, at 223-224 note that there is some anxiety about whether the archives can survive the closure of the Residual Mechanism. Wherever the archives are housed, a searchable electronic duplicate should be created and stored securely in the Cloud—an expensive but crucial safety measure.

12 See Ben Taub, The Assad Files: Capturing the top-secret documents that tie the Syrian regime to mass torture and killings, The New Yorker (Apr. 18, 2016); Ian Black, Syrian regime document trove shows evidence of ‘industrial scale’ killing of detainees, The Guardian (Jan. 21, 2014, 2:39 PM).

13 David Rohde, Endgame: The Betrayal and Fall of Srebrenica, Europe’s Worst Massacre Since World War II 345 (1997) (describing Erdemović’s plight), and sources cited in id. at 412 note 24.

14 Prosecutor v. Milošević, transcript of proceedings 43172 (Aug. 24, 2005).

15 Marko Milanović, The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Postmortem, 110 AJIL 233 (2016).

16 See, e.g., Elliott Aronson, The Social Animal 230-33 (7thed. 1995). See also, Stuart K. Ford, A Social Psychology Model of Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms, 45 Vand. J. Transnat’l L. 405, 426-430 (2002).

17 Friedrich Nietzsche, Beyond Good and EVIL para. 68 (1886).

18 Milanović, supra note 15, at 248.

19 Id.at 256.

20 Id.at 242 (bias), 243-44 (Serb sense of victimization), 244-45 (Croat sense of victimization).

21 Prosecutor v. Milošević, transcript of proceedings 40279 (June 1, 2005);the video can be found at Michael Dobbs, Srebenica Exe-cutions –Trnovo, Youtube (Feb. 2, 2012).

22 Milanović, supra note 15, at 247.

23 Id. at 254.

24 Margaret deGuzman, The Global-Local Dilemma and the ICC’s Legitimacy, in Legitimacy and International Courts (Harlan Grant Cohen et al, eds.) (forthcoming 2016).

25 Thomas Hobbes, Leviathan, Ch. 11(1651).

26 David Luban, After the Honeymoon, Reflections on the Current State of International Criminal Justice, 11 J. Int’l Crim. Just. 505, 509-511 (2013); David Luban, Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law, in The Philosophy of International Law (Samantha Besson & John Tasioulas eds., 2010).

27 Paul W.Kahn, Sacred Violence: Torture, Terror, and Sovereignty 93-130 (2008); on the same theme, Moshe Halbertal, on Sacrifice 63-78(2012).

28 Rebecca West, Greenhouse With Cyclamens I, in Atrain of Powder: Six Reports on the Problem of Guilt and Punishment in our Time 3, 11 (1955).

29 Id.at 17.

30 Koskenniemi, supra note 4, at 12-15.

31 Following Jacques Vergs’s theory of “défense de la rupture” , see Rupture Defense, Criminal Defense Wiki

32 ICTY’s prosecutor announcedhe will appeal the acquittal, see Prosecutor to appeal UN tribunal’s acquittal of Vojislav Šešelj of war crimes in the Balkans, UN News Centre (Apr. 6, 2016).

33 Milanović, supra note 15, at 246.

34 Id.at 242.

35 Kendall & Nouwen, supra note 1, at 227-230.

36 Milanović, supra note 15, at 255.

37 Darryl Robinson & Gillian MacNeil, The Tribunals and the Renaissance of International Criminal Law: Three Themes, 110 AJIL 191 (2016).

38 For a noteworthy example of how the Tribunals have refined the definitions of international crimes, see the concise summary othe crime elements offered by ICTY Trial Chamber II in Prosecutor v. Stanišić, Case No. IT-08-91-T, Judgment, paras. 22-118 (Int’l Crim. Trib. for the Former Yugoslavia Mar. 27 2013).

39 Robinson & MacNeil, supra note 37, at 203-204.

40 For an exemplary sorting-out, seeProsecutor v. Branin, Case No. IT-99-36-A, Judgment, paras. 410-432 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 3, 2007).

41 Prosecutor v. Galić, Case No. IT-98-29-T, Judgment and Opinion, paras. 136, 138 (Int’l Crim. Trib. for the Former Yugoslavia Dec. 5, 2003).

42 Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A, Judgment, para. 151 (Int’l Crim. Trib. for the Former Yugoslavia June 12, 2002); the European Court of Human Rights heldthe same under European law in Aydin v. Turkey, Eur. Ct. H.R., 57/1996/676/866, para. 86 (Sept. 25, 1997).

43 Prosecutor v. Tadić, Case No. IT-94-1, Decision on the defense motion for interlocutory appeal on jurisdiction, para. 70 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995).

44 Id.at para. 68.

45 Michael N. Schmitt, Charting the Legal Geography of Non-International Armed Conflict, 90 J.Int’l L.Stud. 1 (2014); and for a con-trasting view Jennifer Daskal, The Geography of the Battle field: A Framework for Detention and Targeting Outside of the ‘Hot’Conflict Zone, 161 U. Pa. L. Rev. 1165 (2013).

46 International Humanitarian Law Clinic at Emory University School of Law, Operational Law Experts Roundtable on theGotovina Judgment: Military Operations, Battle field Realities and the Judgment’s Impact on Effective Implementation and Enforcement ofInternational Humanitari-an Law(2012).

47 Compare Prosecutor v. Gotovina, Case No. IT-06-90-T, Judgment Volume I of II, para. 1244 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 15, 2011)with Prosecutor v. Gotovina, Case No. IT-06-90-T, Judgment Volume II of II, paras. 1910-1911 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 15, 2011) (describing the sought-after military advantage as, alternatively, forcing the enemy commander’s capitulation, increasing his insecurity, and disrupting his movementand communications).

48 Prosecutor v. Gotovina, Case No. IT-06-90-T, Judgment Volume II of II, para. 1911 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 15, 2011).

49 Prosecutor v. Gotovina, Case No. IT-06-90-T, Judgment, paras. 49-84 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 16, 2012); Marko Milanović, The Gotovina Omnishambles, EJIL: Talk! (Nov. 18, 2012).

50 ICTY subsequently convicted Jadranko Prlić for proportionality violations in the destruction of the Old Mostar bridge (Prosecutor v. Prlić, Case No. IT-04-74-T, Judgment Volume 3 of 6, paras. 1581-1584 (Int’l Crim. Trib. for the Former Yugoslavia May 29, 2013)). This, however, was an a typical judgment, because the Trial Chamberweighed the military importance of the bridge against its cultural significance—in other words, it weighed the military and civilian uses of a dual-use object against one another.