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CENTRE FOR SECURITY
STUDIES - CENTAR ZA BEZBEDNOSNE STUDIJE
CRIMINAL POLICY
AND RELATIONS WITH
THE INTERNATIONAL CRIMINAL TRIBUNAL FOR
THE FORMER YUGOSLAVIA
1.
Project background and outline of the problem area
The International Criminal Tribunal
for the Former Yugoslavia (ICTY) represents one of the main
humiliations and, at the same time, temptations, for the
current societies in the territories of the former Yugoslavia.
The definition of a criminal policy that would be able to
accommodate constructive relations with the ICTY is thus
a priority for the states of the former Yugoslavia, yet
this is a priority that still goes largely unrecognised
and lacking in due attention being paid to it.
The evolution of the ICTY's work
over the past years has seen an increasing number of the
indictees arrested and tried, yet profound political controversies
have consistently dogged both the Tribunal's work and the
political ability of the former Yugoslav governments to
institutionalise cooperation with it.
One of the most controversial,
and at the same time most demanding, facets of "the
Hague Tribunal problem" has been a unique combination
of the judicial and diplomatic features that need to be
inherently present in any active development of relations
with the Tribunal. On the one hand, the Tribunal ardently
and continuously asserts its proper judicial nature and
a full political independence, often in the face of directly
compromising counter-evidence. The conspicuous lack of indictments
against the leaders of some of the participating countries
in the former Yugoslav inferno until the day of their death
has played the role of such counter-evidence. As yet a largely
undefined sentencing policy is another problem. A relative
lack of responsibility and accountability for the possible
miscarriages of justice (the immunity of the United Nations
extends to the Tribunal and the Prosecution Office, which
is an organisational part of the Tribunal), controversies
over the oversight of the detainees in the Tribunal's Detention
Unit, sparked off by the suicide of the former Mayor of
Vukovar, Slavko Dokmanovic while incarcerated, contribute
to a list of objections that are often raised against the
Tribunal in its proclaimed independent and strictly judicial
role.
On the other hand, those more
inclined to political pragmatism tend to criticise the Tribunal
for exactly the opposite - for not acting in sufficiently
politically opportune ways, especially for having brought
forward indictments against the key leaders in very sensitive
phases of regional crises, thus - at least seemingly - cutting
off the escape routes for those who are seen as problem
politicians when in positions of authority.
The truth about the Tribunal's
status and the operational nature of the future communications
with it is probably in between the two extreme positions.
The Tribunal is an international judicial instrument intended
to bring about a reconciliation and a calming down of ethnic
tensions and hatreds by placing the blame for any atrocities
squarely on the guilty individuals, thus, indirectly, absolving
the ethnic collectives of the burden of blame and collective
responsibility for what has happened, in the interest of
long-term stability and re-establishment of mutual trust
in the region.
There has been a notable lack
of attention to the most appropriate diplomatic methods
of advancing the relationship between the Tribunal, and
international criminal courts more generally, on the one
hand, and the governments that are directly involved in
the trials, on the other hand. A developed diplomatic methodology
for relations between the politicians and judicial officials
in the sensitive situations of war crimes trials would greatly
assist the actual fulfilment of optimum goals of the international
criminal tribunals. Such a methodology would set out the
rules which would restrict improvisation and extreme actions
by either side, in the interest of a steady process of justice
developing under the auspices of a mature diplomatic structure
and process.
In dealing with the communities
concerned, the Tribunal needs to develop special relations
with informal community representatives, such as NGOs and
intellectual leaders, who would be able to act as a mediating
factor, ameliorating the extreme reactions and policies
on the one hand, and acting as a voice of conscience, on
the other. However, such a broadening of the currently very
narrow scope of the work of the ICTY would probably require
a more emphasised reconciliatory mission, and a far less
pronounced retributive aspect of the Tribunal's work. Any
active role by the informal community representatives would
probably be associated with a more forgiving policy on both
sides, and would resemble the historically known examples
of such involvement, such as the involvement of intellectuals
in the reconciliation processes in South Africa - probably
the most recent and one of the most successful examples
of putting the traumatic history behind.
There is a particular discrepancy
between the degrees of diplomatic sensitivity displayed
by traditional judicial officers, who tend to play the key
role in international criminal tribunals, and the diplomatic
figures world-wide. The most recent illustration of the
need for diplomatic sensitivity in western Europe in this
context was the case of the former Chilean dictator, Augusto
Pinoche, who was detaned in Great Britain pending the outcome
of extradition proceedings requested by a Spanish judge
for Pinoche's alleged involvement in the deaths of several
hundred dissidents in Chile during his rule. The process
culminated with the British Home Secretary, Jack Straw,
acting in a quasi-judicial role and allowing Pinoche to
return to Chile "on medical grounds". Pinoche
was met in Chile with a mixed reaction, and is facing a
fair degree of uncertainty over whether he will be tried
for alleged crimes in his own country. At the same time,
a major diplomatic incident has been averted by Straw's
decision.
The current stalemate between
the ICTY and the governments of the former Yugoslav republics,
especially the Serbian leadership, is largely caused by
uncompromising positions exhibited by the Tribunal, and
with less than satisfactory diplomatic abilities displayed
by the former war leaders. It would seem that very little
historical experience of similar situations has been systematically
analysed and used by the ICTY in developing its policy of
trying cases in the former Yugoslavia. As a result, a certain
amount of "jumpiness" has been noticeable in its
indictments policy, with new indictments being brough up
in "spurs", usually following major developments
on a security level. A lack of steadiness and clear vision
of policy development is arguably the main defficiency in
the Tribunal's operation. Another issue concerns the seemingly
inexplicable failure to apprehend the key indicted figures
behind the war in Bosnia, while at the same time passing
extremely heavy heanded sentences on the low level executors
of the destructive political decisions made at the highest
levels.
The management of criminal policy
relating to cooperation with the ICTY is one of the critical
issues of both domestic and foreign policy of several countries
of southeastern Europe. The aim of this project is threefold.
It involves the following phases:
- Collection of study material about the activity of international
criminal courts relevant to the work of the ICTY and its
analysis through guided work with postgraduate students;
-
Development of a particular
diplomatic theory for relations with the international
tribunals. Currently most countries of the former Yugoslavia
have special sections within their foreign affairs departments
that are charged with developing communication and cooperation
with the ICTY. This is a start. What is left is to locate
and develop the concepts and methods that would establish
a particular procedural, cultural, value- and operational
environment wherein proper solutions could be found
for problems that tend to turn into polarised conflicts
and antagonistic debates today;
-
Education of a group of young
professionals specialising in this type of diplomacy,
who would be able to generate a constructive impact
in the NGO sector, aimed at reducing the antagonistic
communication between the Tribunal and its interlocutors
"on the ground", thus allowing a more complex and multi-dimensional
view of the conflict and the relationship to become
available. A complexification of the conflict that at
present tends to be highly polarised and antagonistic
would also open new avenues for its resolution, by allowing
new facets to be observed and new approaches to be tested,
not necessary threatening the parties involved in the
conflict directly.
2.
Project description and justification
Since the beginning of the "normalisation"
process following the conclusion of the Dayton Peace Accords
for Bosnia and Herzegovina, the inter-ethnic relations in
the former Yugoslavia have been under constant tension.
This process has started to show the first signs of de-escalation
after the recent election of moderate political forces to
government in the Croatian Parliamentary and Presidential
elections early in the year 2000. Prior to this, virtually
all attempts at a comprehensive normalisation had faced
obstruction by the national elites. This antagonistic process
between the former Yugoslav nations had gone hand in hand
with an escalating sequence of animosities between the local
power elites and the dominant forces in the international
community. The political discourse, instead of showing signs
of de-escalation and approximation of positions as a form
of preparation for more careful explorations of the sensitive
issues of fault and its consequences, had steadily exhibited
pronounced features of confrontation. Such a culture of
dialoge had impinged very destructively even on those processes
that had been associated with the ICTY's work that could
have been described as highly operational in nature. These
processes, including the ability of the ICTY's officials
to conduct field excavations and interview potential witnesses,
were key to a credible position being taken by the Tribunal
on numerous occasions.
It seems that a systematic analysis
of the experience of relations between international criminal
tribunals and the governments directly concerned would be
able to shed some light on how a new method could be developed,
which would enable the tribunals to achieve the key elements
of their mission's without at the same time creating the
divisive consequences of antagonistic political discourse
from the very outset. This task is sure to be extremely
difficult, as the negotiating partners would often be individuals
whom the other party would rather see in a subdued position;
yet, such negotiations would take the tribunals' mission
further and with less "collateral" damage inflicted
than would be the case if the political discourse were marked
by deep animosities from the very outset.
It would seem that, apart from
the healing effects of the passage of time being the key
precondition for a constructive dialogue between the nations
that until recently waged war against one another, diplomacy
falls short of facilitating a relatively normal communication
between the international criminal tribunals and the governments
in the regions that used to be infested by warfare. There
is therefore considerable need for longitudinal projects
focussing on public education about the domain and the most
effective diplomatic ways of cooperation with international
criminal tribunals.
Too much oversimplification has
been applied to this issue. It should be noted that international
law and its acts (often the founding acts of international
tribunals - in the case of the ICTY, its Statute) are not
necessarily in accordance with the internal legal systems
of the countries concerned and, although a jurisdictional
superiority of the international tribunals resolves this
issue in principle, it usually takes a considerable amount
of awareness-building in the communities for the sentiments
of sovereignty and independence, especially those held by
the political elites, to be overcome.
Incentives are as important here
as pressure. In fact, pressure from the international circles
has achieved very few results so far. Incentives, primarily
those associated with efforts at facilitating regional institutional
integration, are particularly encouraging for the developing
countries. Countries affected by civil wars, which are subject
to international criminal tribunals, tend to be substantially
reduced in their economic status by the devastation and
the political and economic consequences of the warfare.
Allowing these countries a place at the negotiating table
for their region, and according to them the privilege of
participation in regional integrations in an unhindered
way, is a potential way to bring them out of their isolation
and make their political elites far more willing to engage
in constructive dialogue with the international organisations,
including international judicial bodies.
There is a growing recognition
among the countries of the Second World, which, along with
countries of the Third World, tend to be the most embroiled
in civil warfare, of the importance of international organisations
and multilateral diplomacy primarly developmental diplomacy,
that takes place under the roof of such organisations. While
the UN is the best known example, it is certainly not the
only one. International organisations were initially established
with a view of providing of positive contribution to global
cooperation, not as instruments for sanctioning parts of
the world that do not fit into the perspective of modern
statehood or the standards of democratic governance. There
is currently a lot of emphasis on the redistributive and
repressive functions of the UN, as far as the so-called
"problem countries" are concerned, without an
appropriate and equivallent stimulating role. This is a
situation similar to attempts to monitor economic developments
and the quality of public policy management in a developing
country without providing a systematic method of assistance,
such as grants by the World Bank or the International Monetary
Fund. If there is a World Bank or an IMF mission to the
country, there are tangible ways of influencing the monetary
and economic policy of that country by engaging in a constructive
dialogue with the local authorities over the conditions
for receiving assistance. If the country's problems are
treated with antagonism and isolation, withdrawal of economic
aid and the cutting of economic links, there are no avenues
remaining open for constructive dialogue, and the realistic
level of influence on that country's policy is dramatically
reduced.
Similar principles apply to attaching
a stigma to the country that is seen as responsible for
civil warfare. Judicial cooperation, education of judges,
intensified interaction with the diplomats, and a gradual
raising of the local awareness of the need to partake in
the international institutions of justice may not facilitate
a full satisfaction of the maximum goals and missions of
the international judicial institutions, but they are likely
to generate long-term beneficial outcomes in the evolution
of cultures of legitimacy and cooperation with international
judicial bodies. These outcomes, in themselves, will act
as conflict-prevention tools and as the positive seeds of
future peaceful efforts to resolve regional conflicts (the
residual parts of which regularly hinge on the remaining
animosities after any military conflict), as opposed to
violent strategies.
The opening of a new process
of interaction and policy design concerned with cooperation
with international criminal tribunals, would be based on
intensified interactions, developmental activities focused
on the education of critical segments of the concerned societies,
and the development of cooperative relations that would
permeat the broadest layers of the societies affected by
civil warfare. There is no other name for this process but
reconciliation, and there is no more impressive example
than the equivalent process that is taking place in South
Africa. Reconciling the very reconciliation process with
the judicial demands imposed by the relatively conservative
legal reasoning within the criminal courts is a challenge
for the new segment of diplomacy that would be concerned
with fostering relations between international criminal
courts and "problem governments". This is only
a seeming contradiction. In fact, the narrow room for the
development of such border-line cooperation is the only
room available for avoiding the action-reaction model of
antagonisation and counter-antagonisation, while at the
same time cultivating the aims of international justice
within the realistic context of regional circumstances.
The specific structure of this
project will involve three key activities:
-
Conducting a public information
campaign on the ICTY, its key operational principles
and the most pronounced controversies, alongiside with
the collection and analysis of material testifying to
the success or lack of success of the previous international
criminal tribunals to achieve constructive communication
with the "problem governments";
-
Work within a team of five
young professionals on the design, development, and
publication of a platform for diplomatic relations with
the ICTY and with international criminal courts more
generally, which would be based on the following principles:
(a) the superiority of international to national law;
(b) the overarching framework of cooperative conflict-resolution
over antagonistic "show-downs" between international
and local political elites, (c) adoption of the key
principle of peace theory that violence always
breeds new violence, and the consequent insistence on
the principle of non-violence and non-antagonism in
all relations, and (d) preference for the achievement
of optimum as opposed to maximum outcomes, on the assumption
that the "collateral" costs for the achievement
of maximum outcomes in this, as in other contexts, tend
to be unacceptable.
-
Active supervision and education
of policy- and action-oriented younger specialists in
this type of diplomatic methodology, which the Management
Center strives to develop as its own "border-line
diplomacy", or "narrow margin peace diplomacy".
The participants in the programme will undergo proper
postgraduate-style training within the informal context
of an independent policy institute, and will be exposed
to direct interaction with the Tribunal's officials
and the cases currently being tried at the Hague. This
course, will be based on the key principles of peace
theory which,within the course, will be built into the
modern diplomatic theory and methodology. The traditional
distance between diplomatic theory and modern peace
theory will be overcome in this particular model of
specialist policy training.
The methodology is designed to
create a maximum public impact, while simultaneously generating
longitudinal results through training a group of younger
specialist professionals who will become active within the
NGO community and contribute to the public discourse concerning
cooperation with the ICTY.
3.
Project management
The batch of 5 associates will
be assigned mentors, who will design individual programmes
of specialisation, while the format of specialisation will
be the same for everyone.The associates' activities will
be monitored by an independent body of experts drawn from
the academic community in the region, transcending the borders
of the Serbian academic community.
4.
Target populations
-
Younger lawyers and professionals
in human rights policy and research;
-
Judges, prosecutors, journalists
and others dealing with concrete matters arising from
the need to cooperate with the ICTY;
-
Government policy-makers
dealing with the ICTY;
-
Media and non-governmental
organisations concerned with cooperation with international
bodies and protection of human rights.
All those interested
in taking part in this project are invited to contact
Centre for Security Studies at office@cbs-css.org
