The icty’s Conditionality Dilemma
On the interaction of influences of the European Union’s Conditionality policy and the International Criminal Tribunal for the former Yugoslavia on the development of rule of law in Serbia
In: European Journal of Crime, Criminal Law and Criminal JusticeSearch for other papers by Kei Hannah Brodersen in
Current site
Google Scholar
The European Union has made cooperation with the International Criminal Tribunal for the former Yugoslavia a crucial condition to furthering relations with Serbia. This approach, known as “icty conditionality”, stems from the conviction that the Tribunal is a key factor in rebuilding the rule of law in the Western Balkans. In contrast to the existing literature on eu conditionality in general or on icty conditionality in specific, this article emphasizes the relevance of all involved actors: it examines the interaction of icty conditionality, domestic factors and the icty’s judicial performance influencing the development of the rule of law in Serbia. The article concludes that the goal of using the icty as a tool to establish the rule of law in Serbia has failed due to a lack of norm diffusion, although all icty conditionality requirements have eventually formally been fulfilled. This was not only due to inconsistent application of icty conditionality on the eu’s side, but also on account of deficiencies in the legal operation of the Tribunal. Lastly, neither the eu’s demands nor the icty’s work fell on fruitful domestic grounds.
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9
Rangelov, loc. cit., p. 371; see also European Commission, ‘Report from the Commission. The Stabilisation and Association process for South East Europe — Third Annual Part. com (2004) 202 final’ (Brussels, 2004) p. 6; the eu follows a maximalist understanding of the rule of law: acceding countries must fulfill conditions out of Chapters 23 (“Judiciary and Fundamental Rights”) and 24 “(Justice, Freedom and Security”) of the euacquis (all current eu rules) in order to meet the standards of a society based on the rule of law. Those include: an independent and impartial judiciary (including, e.g., guaranteed access to justice, fair trial procedures, adequate funding for courts and training for magistrates and legal practitioners), the government, its officials and agents are accountable under the law, political leaders and decision-makers take a clear stance against corruption, and a transparent, efficient and fair process of preparing, approving and enforcing laws. Laws must be clear, publicized, stable, fair, and protect fundamental rights; cf., European Commission, dg Enlargement: “Rule of Law”, available online at http://ec.europa.eu/enlargement/policy/policy-highlights/rule-of-law/index_en.htm (accessed 15 February 2014).
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18
Schimmelfennig and Sedelmeier, loc. cit., pp. 663–667 or F. Schimmelfennig, ‘eu political accession conditionality after the 2004 enlargement: consistency and effectiveness’, 15 Journal of European Public Policy (2008) 918–937, at p. 921.
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22
Stromseth, loc. cit., p. 257 and 262; the icty’s performance will be analysed in detail in Section 3.3.
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24
Schimmelfennig and Sedelmeier, loc. cit., p. 665; Schimmelfennig and Sedelmeier argue in this context that the credibility of rewards increases over time and the credibility of threats deceases; Schimmelfennig and Sedelmeier, loc. cit., p. 666.
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32
Anastasakis and Bechev, loc. cit., p. 14, similar: Lavenex and Schimmelfennig, loc. cit., p. 793.
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40
Hartmann, loc. cit., p. 67 and Anastasakis loc. cit., pp. 366, 373–374; their goal was to sustain a critical mass of eu accession supporters among the national population and political elites in order to keep Serbia on the European instead of nationalistic road.
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42
Belgrade Centre for Human Rights, Human Rights in Serbia 2011. Legal Provisions and Practice Compared to International Human Rights Standards. Series Report 17 (Belgrade: Belgrade Centre for Human Rights, 2012) p. 324; Amnesty International Deutschland, ‘Serbien (Einschließlich Kosovo). Amnesty Report 2012’, available online at http://www.amnesty.de/jahresbericht/2012/serbien-einschliesslich-kosovo (accessed 15 February 22014); several other factors such as the unclear relation to Kosovo or delays in necessary reforms are nonetheless hindering Serbian eu membership; J. Reuter, ‘Serbien auf dem Weg nach Europa?’, in Becker and Engelberg, ed., op. cit., pp. 287 and 292, and Sundhaussen, loc. cit., p. 32.
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44
Freyburg and Richter, loc. cit., p. 264, Dobbels, loc. cit., p. 16.
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47
Schimmelfennig, loc. cit., p. 920 and Epstein and Sedelmeier, loc. cit., p. 799.
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51
E.g., Dobbels, loc. cit., p. 21, J. Obradovic-Wochnik, ‘Strategies of denial: resistance to icty cooperation in Serbia, in: Batt and Jelena Obradovic-Wochnik, op. cit., 29–47, at p. 29, Reuter, loc. cit., p. 301, Schimmelfennig, loc. cit., p. 930.
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53
Obradovic-Wochnik, loc. cit., p. 30, B. Ivanišević, ‘Against the Current — War Crimes Prosecutions in Serbia’, in Prosecutions Case Studies Series (New York, ny: International Center for Transitional Justice, 2007) pp. 13–14.
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54
President of Serbia from 1990, President of the Federal Republic of Yugoslavia (fry) from 1997 until 2000; as fry President, he was also President of the Supreme Defense Council of the fry and the Supreme Commander of the Yugoslav Army.
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55
Peskin and Boduszyński, loc. cit., p. 59, Obradovic-Wochnik, loc. cit., p. 30 and Orentlicher, op. cit., p. 41.
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56
Dobbels, loc. cit., p. 24, similar: D. Saxon, ‘Exporting Justice: Perceptions of the icty Among the Serbian, Croatian, and Muslim Communities in the Former Yugoslavia’, 4 Journal of Human Rights (2005) 559–572, at p. 567 and Obradovic-Wochnik, loc. cit., p. 31; for instance, Ratko Mladić, former Commander of the Bosnian Serb Army, was shielded and supported by the Serbian Army, whereas Radovan Karadžić (President of Republika Srpska and Supreme Commander of its armed forces, indicted for genocide, crimes against humanity and war crimes) has allegedly been hidden by the Serbian Secret Service for some time; Dobbels, loc. cit., p. 23, Obradovic-Wochnik, loc. cit., p. 29-30, Carla del Ponte, Madame Prosecutor. Confrontations with Humanity’s Worst Criminals and the Culture of Impunity, A Memoir. (New York, ny: Other Press, 2008) pp. 166–167, Reuter, loc. cit., p. 301.
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57
Dobbels, loc. cit., p. 24, Hartmann, loc. cit., p. 73, H. Bohnet and Isabelle Nijhof, Vergangenheitsaufarbeitung in Serbien: Chancen und Hindernisse. Country Report, Foundation Konrad Adenauer (2012), available online at http://www.kas.de/serbien/de/publications/31404/ (accessed 15 February 2014) p. 2.
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59
Dobbels, loc. cit., pp. 19–20 or del Ponte, op. cit., pp. 115, 198.
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61
Stromseth, loc. cit., p. 262, Orentlicher, op. cit., pp. 53–55.
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62
Kienlen, loc. cit., p. 652, Orentlicher, op. cit., p. 13 and J.N. Clark, ‘Judging the icty: has it achieved its objectives?’, 9 Southeast European and Black Sea Studies (2009) 123–142, at p. 127.
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74
Bassiouni, loc. cit., p. 199; the icty’s contributions to the development of substantive and procedural international humanitarian and criminal law must also be named in this context. Drawing a clear line between legal and illegal deeds in the context of an armed conflict will certainly help to prevent future crimes that albeit are generally perceived as criminal acts, but were so far not defined as such; Kienlen, loc. cit., pp. 651–652 and icty, ‘Assessing the Legacy of the icty. A Conference of the International Criminal Tribunal for the Former Yugoslavia. Background Paper’ (2010), available online at http://www.icty.org/sid/10292 (accessed 15 February 2014) p. 1.
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75
Tolbert, loc. cit., p. 8 and F. Mégret, ‘The Legacy of the icty as Seen Through Some of its Actors and Observers, 3 Goettingen Journal of International Law (2011) 1011–1052, at pp. 1029–1030.
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80
Kienlen, loc. cit., pp. 667–668; for most Serbs it was incomprehensible that their President was to appear before a court for committing war crimes, while the same “Western actors”, who wanted to speak justice over Milošević, were committing crimes themselves during the bombardments.
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81
W. Kaleck, Mit zweierlei Maß. Der Westen und das Völkerstrafrecht (Berlin: Klaus Wagenbach, 2012) p. 55; Akhavan (2001), loc. cit., p. 19; Hall, loc. cit., p. 48. Carla del Ponte describes in her memoires a planned indictment against Tudjman but that he died before it could be issued; del Ponte, op. cit., p. 246.
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82
Kienlen, loc. cit., pp. 669–671; Akhavan (2001), loc. cit., p. 19. No judges and prosecutors of Balkan origin were employed at the icty. This was unfortunate, as it implicitly confirms the notion that Serbs are unable to address their own past impartially and properly. Including them in the judicial process would have sent a signal towards adherence to the theoretical principle of individual criminal responsibility, not blaming a whole nation, which would have contributed to the credibility of the Tribunal; Hall, loc. cit., p. 48 and Spoerri and Freyberg-Inan, loc. cit., p. 373.
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83
Reuter, loc. cit., p. 299, see also Rangelov, loc. cit., p. 372 and Stromseth, loc. cit., p. 274. The media were — among others — incited by Milošević himself who many times questioned the legitimacy of the icty. In his initial appearance for instance, he stated: “I consider this Tribunal [a] false Tribunal and indictments false indictments. It is … [an] illegal organ!”; see video on the icty video channel: http://www.youtube.com/watch?v=7S3CIMpDEjU&feature=youtu.be (accessed 15 February 2014), at 2:12 min.
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88
Arzt, loc. cit., p. 235; twenty plea-bargaining agreements have been concluded; cf. icty: “Guilty Pleas”; http://www.icty.org/sections/TheCases/GuiltyPleas (accessed 15 February 2014).
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89
Kienlen, loc. cit., p. 663; one example is the case of Ivica Rajić, a commander of Bosnian Croat units, pleaded guilty to grave breaches of the Geneva Conventions, among them willful killing of civilians, sexually assaulting women and robbery. The attack on Stupni Do under his command resulted in deaths of 37 Muslim children, men and women, only six of whom were combatants. Rajić’s sentence foresaw 12 years of imprisonment. In 2011, he got early release; icty; “’Stupni Do’ (it-95-12) Ivica Rajić”, available online at http://www.icty.org/x/cases/rajic/cis/en/cis_rajic.pdf (accessed 15 February 2014) p. 1.
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90
Kienlen, loc. cit., pp. 663–665; the sentencing practice of the icty was a major critique in general as it was often perceived as very lenient when compared to the crime. Especially, some acquittals or turnovers of judgments by the Appeals Chamber caused frustration. For example, Blaškić was sentenced to 45 years of imprisonment for grave breaches of the Geneva Conventions and for war crimes, the Appeals Chamber reduced this sentence to nine years; one month later, he got early release; icty; “Lašva Valley (it-95-14) Tihomir Blaškić”, available online at http://www.icty.org/x/cases/blaskic/cis/en/cis_blaskic.pdf (accessed 15 February 2014) p. 1. Another case is the acquittal of Ante Gotovina, Croatian Commander of the Split Military District of the Croatian Army and overall commander of the southern portion of Krajina during the “Operation Storm”, a military operation allegedly having the purpose of expelling all Serbian population. See, for a comprehensive substantial critique of the Appeals Chamber judgment, J.N. Clark, ‘Courting Controversy. The icty’s Acquittal of Croatian Generals Gotovina and Markač’, 11 Journal of International Criminal Justice (2013) 399–423.
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92
Kienlen, loc. cit., pp. 665–666 and Rangelov, loc. cit., p. 372.
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95
Kienlen, loc. cit., p. 676; victims were, e.g., not allowed to tell their stories, but only to answer strictly to questions. The possibility of written testimony (Rule 89f), gives even less room to be heard; Clark (2009), loc. cit., pp. 127–128.
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101
Kienlen, loc. cit., pp. 656–657; there is a dispute about the question whether establishing any sort of “truth” is a task of a criminal tribunal at all. A constructive contribution has been made by Dan Saxon who supports a differentiated view on “the truth” by saying that tribunals should acknowledge that each community has a right to its version of history (historical truth) — “provided that the version is based on historical facts” (legal truth); Saxon, loc. cit., p. 568. The Tribunal’s Statute provides that judgments are only to be issued if and when “guilt has been proved beyond reasonable doubt” (Rule 87). Thereby, the icty claims for itself to find at least a legal truth by determining the only “reasonable” view on crimes.
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102
Ljubojević, loc. cit., p. 80 and Arzt, loc. cit., p. 230; for instance, only recently it has been acknowledged that comprehensive translation of the icty materials and records, such as trial protocols and evidence, into the local languages of the target societies would have an important impact on identification with the proceedings and the established truth; F. Höpfel, ‘Internationale Strafgerichtshöfe und Rechts(kultur)entwicklung’ in Pilgram, Böllinger, Jasch, Krasmann, Prittwitz, Reinke and Rzepka, op. cit., 141–148, at p. 145. The first press release in Serbian, e.g., was issued in the year 2000; Orentlicher, op. cit., p. 95.
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Jovanovic, loc. cit., p. 5; Orentlicher, op. cit., p. 95. Opinion polls confirm that denial and the feeling that Serbs are victims is still deeply rooted in Serbia; Klarin, loc. cit., p. 93. Local media would have been an important actor in disseminating the message of fair trials before the icty, which were indeed lengthy, complex and technical, but thereby accurate and the opposite of “show trials”. Instead of explaining decisions of the icty, each national group used the opportunity of short summaries of the icty proceedings to create and present their own version of the history of the war; Saxon, loc. cit., p. 563. Consequently, public perception in Serbia were hardly influenced by what the prosecution and judges were actually doing in The Hague, but rather by the views of the local political, academic and cultural elites; Klarin, loc. cit., p. 90.
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109
Stromseth, loc. cit., p. 274 or Orentlicher, op. cit., pp. 86–87; Saxon, loc. cit., p. 562.
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111
Orentlicher, op. cit., pp. 86–92, similar: Saxon, loc. cit., p. 562.
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114
Kienlen, loc. cit., p. 679; the icty itself actually never did any research about its broader impact on the target societies.
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115
Tolbert, loc. cit., p. 14; there was however one exception: according to the Rule of the Road program, established pursuant an agreement reached in 1996 in Rome between the Dayton Accords, the icty Prosecutor would review all war crimes prosecutions and assess whether a prima facie case existed. However, after the domestic prosecutor received the relevant ok, s/he was left alone by the icty; Tolbert, loc. cit., p. 14.
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118
Stromseth, loc. cit., p. 275, V. Dimitrijevic, ‘Domestic war crimes trials in Serbia, Bosnia-Herzegovina and Croatia’, in Batt and Obradovic-Wochnik, ed., op. cit., p. 86; its establishment had experienced many objections — even the Minister of Justice was against it. The environment had only become supportive after the assassination of Prime Minister Zoran Đinđić, who had always supported war crimes courts; Orentlicher, op. cit., p. 65 and Dimitrijevic, op. cit., p. 86.
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124
Orentlicher, op. cit., pp. 70–71 and 73; the icty summarizes its capacity-building efforts as bolstering staffing capacity in key areas and professional development, developing curricula and materials an international law that is tailored to each national jurisdiction’s legal framework, access to the icty’s materials and expertise; cf. icty: “Capacity Building”; http://www.icty.org/sections/Outreach/CapacityBuilding (accessed 15 February 2014).
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132
Freyburg and Richter, loc. cit., p. 264; Dobbels, loc. cit., p. 16.
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See for instance Tolbert, loc. cit., p. 8 or Orentlicher, op. cit., p. 133.
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142
Dobbels, loc. cit., p. 29; the Serbian judiciary remains the area that raises the most concerns regarding the implementation of the rule of law in line with European standards throughout the years: political influence, partiality of judges and non-application of fair trial rights frame the picture; e.g. European Commission, ‘Serbia and Montenegro. 2005 Progress Report. com (2005) 461 final’ (Brussels, 2005b) p. 10, European Commission (2006), loc. cit., p. 46, European Commission (2007a), loc. cit., pp. 6 and 46, European Commission (2008), loc. cit., p. 3, European Commission, ‘Communication from the Commission to the European Parliament and the Council. Enlargement Strategy and Main Challenges 2009-2010. com (2009) 533’ (Brussels, 2009) p. 54, European Commission, ‘Serbia Progress Report. Commission Staff Working Paper. com (2010) 660’ (Brussels, 2010b) p. 10, European Commission, ‘Serbia 2007 Progress Report. Commission Staff Working Document. com (2007) 663 final’ (Brussels, 2007b) p. 17, European Commission, ‘Serbia 2012 Progress Report. Commission Staff Working Paper. com (2012) 600 final’ (Brussels, 2012) p. 9.
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146
Clark (2009), loc. cit., p. 136
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The icty’s Conditionality Dilemma
On the interaction of influences of the European Union’s Conditionality policy and the International Criminal Tribunal for the former Yugoslavia on the development of rule of law in Serbia
In: European Journal of Crime, Criminal Law and Criminal JusticeSearch for other papers by Kei Hannah Brodersen in
Current site
Google Scholar
PubMed
The European Union has made cooperation with the International Criminal Tribunal for the former Yugoslavia a crucial condition to furthering relations with Serbia. This approach, known as “icty conditionality”, stems from the conviction that the Tribunal is a key factor in rebuilding the rule of law in the Western Balkans. In contrast to the existing literature on eu conditionality in general or on icty conditionality in specific, this article emphasizes the relevance of all involved actors: it examines the interaction of icty conditionality, domestic factors and the icty’s judicial performance influencing the development of the rule of law in Serbia. The article concludes that the goal of using the icty as a tool to establish the rule of law in Serbia has failed due to a lack of norm diffusion, although all icty conditionality requirements have eventually formally been fulfilled. This was not only due to inconsistent application of icty conditionality on the eu’s side, but also on account of deficiencies in the legal operation of the Tribunal. Lastly, neither the eu’s demands nor the icty’s work fell on fruitful domestic grounds.
| All Time | Past 365 days | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 461 | 112 | 8 |
| Full Text Views | 286 | 5 | 4 |
| PDF Views & Downloads | 170 | 5 | 0 |
