Strategy Icty and Ictr Introduction

¶ … Strategy ICTY and ICTR

Introduction combination of political and criminal activities in the international arena, and the inability or unwillingness of local governments to handle these at the time has inspired the creation of entities such as the International Criminal Tribunal of Yugoslavia (ICTY), the International Criminal Tribunal of Rwanda (ICTR), and the International Criminal Court (ICC). These entities were created by the United Nations in order to ensure justice on the International scale. It is also however recognized that these institutions are implemented only on a temporary scale, until the responsibility for criminal justice can be returned to the countries involved. In order to ensure the return of such responsibility, the ICTY and ICTR are subject to a series of deadlines under their completion strategy; a strategy by which the functions of these two entities are to be completed. While the principle behind the ICTY and ICTR is valid and even noble under the right circumstances, the effectiveness of the completion strategy has been under increasing debate. Indeed, critics have gone as far as stating that the strategy is not only flawed, but risks undermining the very purpose and legacy of these institutions. Indeed, if the current situation is scrutinized, it is not difficult to believe that there is at least some truth to in such allegations.

The Completion Strategy: Success or Failure?

According to the United Nations ICTY Web site (2008), the Tribunal was established in 1993, with the purpose of investigating and prosecuting those committing crimes during the wars in Yugoslavia. After ten years, in 2003, it became apparent that the country had implemented various national judicial systems to develop its ability to handle war crimes domestically. The completion strategy was hence implemented in order to conclude the Tribunal's mission and return legislative authority to local institutions. The plan was to complete this mission in full coordination with the local authorities that had been established for the purpose. The current problems faced by the Tribunal relate to the deadlines initially established for the completion strategy. Endorsed by the UN Security Council in resolutions 1503 and 1534, the strategy consists of three phases and three concomitant target dates. The first target was that all investigations were to be completed by 31 December 2004. According to the UN Web site, this deadline has been met. The second and third deadlines, by the end of 2008 and 2010 respectively, are however presenting problems. The 2008 deadline for the completion of all trials is envisioned for 2009, with the final target for all proceedings is now projected for 2011 instead of 2010.

In terms of its specific functions, the ICTY focuses its prosecuting attentions on the senior leaders suspected of involvement in crimes. Cases against leaders at lower levels are transferred to national jurisdictions that have proved themselves competent in handling such cases. The domestic criminal procedure is also no longer entirely overseen by the Tribunal, and courts are allowed to initiate cases where this appears to be necessary, and without the involvement of the ICTY. Indeed, one of the purposes of the completion strategy is the strengthening of the local justice system, and this appears to be well underway, with war crimes prosecutions being conducted on the local level in Bosnia, Serbia and Croatia (UN ICTY, 2008). In order to ensure the success of such implementations, the ICTY functions in a counseling capacity for lawyers and relevant professionals at the local level. This is done via training programs and other such strategies. Furthermore, electronic databases and archives are made available to national institutions in order to ensure the smooth transition to the domestic environment. In this light, it can be said that the ICTY completion strategy has been a relative success. As indicated, not all critics agree with such an assessment.

Dominik Zimmerman (2008) highlights some of the points of this debate in terms of both the ICTY and the ICTR. The latter operates under the same conditions as the ICTY, while it focuses on Rwanda and the war crimes in this country. The number of cases tried to date by both tribunals, as well as their yearly budget has damaged its public image considerably. The ICTR for example has tried 35 people since its creation, with 27 cases ongoing. The ICTY has 26 individuals on trial, 9 cases on appeal, and 11 awaiting trial, while a further four suspects are at large. According to Zimmerman, even a 2009 extension of the deadline will not be sufficient to complete these activities. The author notes that the most viable strategy for handling the remaining workload is transferring the remaining cases to the national jurisdictions. This would further the success of the completion strategy, as already indicated above. It would also further enhance the proper allocation of the yearly budget for the tribunals and improve the image of this allocation in the public view.

The ICTR does not appear to be in a much better position as far as workload is concerned. Indeed, according to the Security Council Report of 2007, the Prosecutor of the ICTR noted that major cases would conclude during 2007 and 2008, the President of the Tribune stated that 18 inductees were still at large at the time of the report, and that all trials would therefore not be complete by the 2008 target. Particularly, Felicien Kabuga was still at large. He is accused of being a key player in the Rwandan massacres. In contrast to the former Yugoslav region, transference of these cases to African countries, with the possible exception of Rwanda, was not a viable option at the time. Capacity and resource constraints were cited as the most prominent reasons for this; transferring such cases would overload local judicial systems and result in further injustice.

The Southeast European Times (2005) also addresses the issue of deadlines as it relates to the completion strategy. Indeed, the article substantiates the need for extending the 2010 target date for the completion of all ICTY activities. At the time of the article, thousands were still awaiting trial, and hundreds of thousands of refugees were still waiting for compensation in order to return to their respective homes. The article also however states that requests have been made in order to transfer lower level cases to national courts.

It is however apparent that, even such a strategy is flawed as a result of various factors. During 2006, McNabb Associates published an article regarding the ICTY and the transfer of a case to a state court in Bosnia-Herzegovina. One of 24 individuals transferred to this court, Dragomir Abazovic, was released when no request for continued detention was filed. In addition, the failure of this court to issue a new warrant for his arrest makes both his arrest and detention unlawful. Although the reasons for the failure of prosecutors to request continued detention are unclear, the other irregularities could have been prevented had proper counseling from the ICTY been in place.

Such reports furthers the damage to the reputation of the Tribunal. Indeed, they substantiate allegations to the effect that the completion strategy is flawed, and does more harm than good in terms of international justice.

The Security Council Report (2007) states that several key issues need to be investigated and modified for the ICTR in order to enhance the probability of success for its completion strategy. The main concern is what is known as the "legacy" issue: what is to occur after 2010, if the target date is not met. As mentioned, many suspects are still at large, and it is unviable from a justice point-of-view to simply fail to prosecute them after this date. A viable solution is needed for their trials. Other issues include extant appeals and requests for sentence suspensions and pardons, and administrative issues such as archive maintenance. Operating costs is a further important issue that needs attention. The negative view of the Tribunal in the public sphere is enhanced by its apparently high operating costs concomitantly with its lack of adequate results.

When the issues are investigated and explicated, it is not difficult to understand the critical viewpoint, that the completion strategy is indeed flawed. It is therefore necessary to make further investigations in order to identify these flaws and implement remedies. Such remedies is in the interest of international justice and should therefore take precedence in the actions of both tribunals.

Flaws in the Completion Strategy

As mentioned, the completion strategy has been created with the best of intentions. Surely the risks and flaws currently associated with it were never envisioned when implementing the strategy. When investigated, various reasons come to light for the flaws in the completion strategy.

According to the Southeast European Times (2005), the main problem is threefold: financial constraints, the changing geopolitical setting, and the assumption that local courts can continue war criminal cases. The latter is particularly important for the success of the strategy. As mentioned above, the transfer of cases from the international to the local level is crucial to the success of the strategy. Yet, according to the article, former Yugoslav republics continue in their failure to arrest and hand over inductees, or to investigate and prosecute the war crimes in question. Clearly the counseling provided by the ICTY has been far from adequate, or the countries involved are simply not yet ready to take over the responsibility of prosecution.

The article also cites Amnesty International in a statement that war crime legislation on the domestic level in these countries are frequently not in line with international legislation, and that victim and witness protection programs are far from adequate. Apparently these issues have not been thoroughly investigated before implementing the phases of the completion strategy.

A further flaw in the completion strategy is consensus, or the lack thereof. According to the Security Council Report (2007), the various countries are in disagreement on how to proceed after December 2010. There are also differences regarding the costs and accessibility as these relate to archive materials. Such issues are under discussion by the Council Working Group on Tribunals. The Report emphasizes that it is unlikely that either Tribunal will reach the 2010 deadline because of the number of appeals. It is therefore important, in the interest of justice, that strategies be implemented in order to either extend the target date or find other ways to prosecute those persons still outstanding.

According to the Rwanda Development Gateway (2005), two major issues were facing the ICTR in terms of its completion strategy during the time of writing: the first is the exodus of highly qualified personnel, and the delay in the transfer of some cases to national jurisdictions. This returns to the main issues mentioned above as well: financial constraints and the capacity of national jurisdictions. Specifically, the Gateway notes that the ICTR retention plan for qualified employees in terms of bonuses was not approved by the UN, and has resulted in a high rate of resignation of key personnel.

In terms of transfers to national jurisdictions, only two were accomplished by the ICTR to France, with none completed to other European or African countries. The main reason for this is the specific jurisdiction issues, and it is likely that further transfers will also fail. Four requests have been submitted to Rwanda, the only African country that has agreed to accept transfers. Indeed, this spells great difficulties for the success of the completion strategy of either Tribunal. Currently, transferring cases does not seem like one of the most highly viable strategies in terms of reading the target dates of the completion strategy.

A further problem is the time involved in prosecution and trial. In addition to several of the accused still being at large, those already in custody will take considerable time to complete: individual trails take 10 months. Such extended trial times, in addition to the cost of investigation and incarceration, takes valuable resources. This problem, concomitantly with the lack of experience personnel, results in further inefficiency. Investigating these issues should reveal future strategies that can be followed to remedy the problems identified.

Positive Criticism

Not all critics are negative towards the Tribunals and their accomplishments. Indeed, Richard Dicker (2004 and 2006) substantiates that many of the factors contributing to the difficulties experienced are beyond the control of the Tribunals themselves. Unfortunately, these factors have also contributed to a loss of respect for these institutions, as well as for the rule of law that they represent. Dicker (2004) however holds that the basis of these difficulties can be found in the lack of cooperation from key UN member states in combination with the already mentioned financial challenges. Indeed, this cooperation relates not only to technical and political support, but also the failure of member states to pay their determined contributions. This, according to the author, contributes significantly to the inability of the ICTY and ICTR to operate at their full capacity and concomitantly in meeting their target dates. As a remedy, Dicker suggests that the Security Council should provide greater flexibility regarding the target dates. Indeed, Dicker notes that the target dates would have presented a much less significant problem if the member state contributions had been forthcoming as mandated.

The lack of member state support does not only extend to the financial aspect. Indeed, the author suggests that Serbia and Montenegro have failed to cooperate with the ICTY in terms of obstructing the arrest and transfer of fugitives, not producing documents, and not providing access to witnesses. At the time of the article, Bosnia and Herzegovina had yet to arrest any persons the ICTY indicted under their jurisdiction. The ICTR experienced similar difficulties with Rwanda, which took months to approve detainees who were in government custody. Kigali authorities were also to provide trial documents, while others have failed to make the required arrests in their jurisdictions.

The author indicates that the rigid deadlines that were implemented at the time might obstruct justice; a factor that has already been mentioned. Indeed, such deadlines could encourage fugitives to remain at large in order to avoid trials altogether. Later developments have however negated this fear.

According to Dicker, the completion strategy is indeed inherently flawed, but not by any fault of the Tribunals. Indeed, the blame of such flaws lies in the basic lack of all forms of cooperation by the member states. In order to remedy the situation, Dicker suggests that the Security Council implement greater flexibility regarding its target dates. Rather than establishing rigid deadlines, it is suggested that the dates receive the status of "goals" that can be adjusted as necessary. The purpose of the tribunals is indeed not to complete everything by a certain time, but to finish prosecuting all those who have committed crimes against humanity.

The author furthermore suggests that measures be taken to ensure cooperation in terms of both financial and other forms of cooperation from member states. It is only with such cooperation that the ICTY and ICTR can fulfill their functions fully and in a targeted manner.

Dicker furthermore emphasizes the merits of the ICTY and ICTR in their contributions towards international justice. He also notes that, despite criticism, the institutions have continued to perform their functions as best they could in the face of the difficulties mentioned above. To enhance and restore public respect, the author therefore suggests that officials and member states provide the Tribunals with the resources they need to fulfill the functions for which they were established.

Dicker (2006) also mentions the importance of collaboration among several entities in order to help both Tribunals and the International Criminal Court to conduct their work effectively. Especially after the closure of the Tribunals, it will be necessary to enlist entities that can continue to ensure that international criminal justice continue to be a priority for the global community.

Possibilities for Action

Specifically, Dicker serves the Human Rights Watch, which works closely with the Office of the Prosecutor (OTP) functions to bring to justice those who are convicted of crimes against humanity in countries that do not have sufficient resources to prosecute them properly. The OTP specifically prosecutes and brings to justice cases of international criminal justice.

Two of the most important elements of this function is that investigations must be carried out efficiently and culminate in fair and orderly trials. Indeed, these are the two main mandates of the ICTY and the ICTR as well. Dicker (2006) emphasizes that the International Criminal Court (ICC) will try only relatively few cases for each country in question, and that the OTP should therefore function as an entity to take those cases that cannot be transferred locally. The communities most affected by crimes should be the focus of this work. From a human rights point-of-view, it is therefore important to work closely with the communities affected in order to make all the elements of the procedure, including the pre-trial proceedings, participation of victims, the trial, verdicts and sentence, understandable and accessible. It is a vital element of the success of the OTP that those affected believe that justice has been served by means of the procedures followed and the sentences handed down.

In addition to material difficulties, the OTP faces several challenges in this regard. It is physically situated far from the countries affected by the crimes being investigated, for example. It also operates in an environment that is filled with controversy and turmoil, not least because of the issue of funding and the applications of such funding. It also operates in a political environment that is deeply affected by issues of state sovereignty, and access to materials, witnesses and indeed criminals themselves can be limited at times. These are the same issues faced on a certain scale by the Tribunals discussed above.

According to Dicker (2006), challenges also include obtaining cooperation from state parties, relevant international organizations, and investigations of atrocities such as mass murder and rape as a weapon of war. Intimidation and forced displacement on the basis of ethnicity are also issues that need to be addressed by the OTP. The investigation of such issues can be greatly challenged by the non-cooperation of the perpetrators involved. Indeed, countries where the very perpetrators are still in political power may have difficulty cooperating with the OTP in this regard.

Not least of the OTP's challenges is its relative youth in the global political arena. Indeed, it faces many well established entities that habitually violate human rights on a global scale, while its own policies and functions are established only on a trial basis. The OTP therefore has to work continually in order to establish policies for conducting its work in order to maximize its effect on the global political scale.

Perhaps it is then beneficial that the completion strategy is facing its own difficulties in terms of time scale and efficiency. While the ICTY and ICTR are therefore addressing their difficulties in this regard, the OTP can work with the ICC and other entities of the kind in order to establish an efficient and strong entity for addressing human rights violations throughout the world. As in the case of the Tribunals, Dicker is positive that the OTP, in combination with the ICC, is making progress in terms of these functions. Indeed, he notes that the Office has obtained six arrest warrants and arrested one accused at the time of writing the article.

John B. Bellinger, while not as positive as Dicker in terms of the Tribunals or indeed the ICC, also however appears to believe that remedies for the problems currently experienced are possible.

John B. Bellinger (2008) addresses the American viewpoint on the Tribunals, the ICC, and how remedies can be implemented for the problems currently experienced in terms of efficiency and target dates.

Bellinger emphasizes the importance of the Tribunals in their function to prosecute those in violation of human rights and those who committed other atrocities during the wars under investigation. In this regard, the country has provided considerable financial, technical and political support to both Tribunals. Specifically, the country has provided information on and access to witnesses in such a way to ensure fair trials. Bellinger also emphasizes that the ICTY has had some success in terms of the arrest of Radovan Karadzic and his transfer to the Hague during July 2008.

In terms of target times, Bellinger acknowledges that neither Tribunal is likely to complete all its functions by 2010, despite efforts to increase efficiency. The recent capture of fugitives has significantly contributed to this problem and needs to be taken into account in future strategies.

One of these strategies is to implement a residual mechanism to handle outstanding matters after the Tribunals have finished their completion strategy. This acknowledges that the Tribunals may not be able to complete all their functions while also seeking to remedy the problem. The implemented mechanism would then have a limited mandate, but will also serve as an entity to which major trials can be referred if these are not prosecuted before the extended targets. In addition, Bellinger emphasizes a need to build the domestic legal capacity to try war crimes. This has not been done adequately to date, and needs considerable attention. Lasting justice and reconciliation is simply not possible without the establishment of such capacity.

Bellinger notes that the United States has significantly impacted this issue in Bosnia, as well as to a limited extent in Croatia and Serbia. It has however been seen that these systems are still significantly flawed and need considerable attention. Bellinger also acknowledges the various difficulties mentioned above, particularly as these relate to African countries. Nevertheless, it is important to note that these countries must eventually evolve towards handling their own cases. This is not only important in terms of the past, but also in terms of possible future events in which such trials may be needed.

Bellinger also addresses the role of the International Criminal Court (ICC) and its concern with promoted international criminal justice. Regardless of disagreements regarding the Rome Statute, Bellinger emphasizes that the United States and the ICC should find ways to work together in a constructive and practical way. Rather than focusing on points of disagreement, the approach should be towards a positive collaboration in order to achieve the results that are necessary to promote justice on an international level. Indeed, international criminal justice is a shared interest that is much more important than technical disagreements.

According to the author, a key aspect in this is targeted collaboration. Rather than working as separate entities towards individual goals, the ICC and other international justice agencies, along with stake holding countries, need to collaborate on issues of criminal justice for the collective purpose of enhanced global peace and security.

Regardless of the disagreement regarding the Rome Statute, Bellinger emphasizes that the United States and ICC can work together towards international criminal justice. Indeed, the emphasis should be on common values and the shared goal of international justice rather than technical issues that detract from this central concern. In this regard, Bellinger offers a note of hope in terms of ICC supporters being willing to build a constructive relationship with the United States. This is the spirit of cooperation that would indeed also result in a higher level of success for the ICTY and ICTR.

Bellinger concludes by noting that international justice and accountability should take precedence over disagreements on other issues. Indeed, serious crimes, war crimes, genocide, and other human rights violations should be at the center of attention when investigating international criminal justice. It is therefore vitally important to, regardless of their flaws, recognize institutions such as the ICC, ICTY and ICTR for their function to further the causes of international criminal justice. Any flaws in these systems should be addressed in a collaborative and constructive way, rather than searching for particular flaws or emphasizing points of disagreement. The point is to use these institutions in their capacity as practical tools, which is the reason for their implementation in the first place.

Conclusion

Clearly the ICTY and ICTR are facing challenges with regard to their completion strategy. And indeed, allegations of inefficiency are not unfounded by any stretch of the imagination. Nevertheless, it should be taken into account that the Tribunals are by no means solely at fault for any shortcomings in the strategy. As Dicker (2004) specifically mentions, many of the factors involved are beyond the control of the Tribunals.

The two main problems faced in terms of the completion strategy is funding and cooperation by member states. Although the Tribunals are striving towards meeting their target dates, this is made all but impossible by the fact that member states are not fully cooperating in locating and reporting individuals that are still at large. This makes it difficult to begin and complete trials that are still outstanding. The lack of funding also results in a high personnel turnover rate, and key personnel are leaving the Tribunals to seek greener pastures elsewhere.