Over the past few decades, international criminal courts have significantly increased in size and scope. Today there is a criminal court operating under a United Nations mandate for most cases of mass atrocity around the globe. These international criminal courts and tribunals have sentenced leaders of horrific war crimes in unprecedented fashion. Ending impunity for war crimes and genocide is clear progress in international law and human rights protection. However, it is important not to overlook the inadequacies of these international criminal tribunals to better practice international law after mass atrocity.
The case of the International Criminal Tribunal for Former Yugoslavia (ICTY) offers many points of argument for both the pros and cons of international criminal tribunals in general. The ICTY was established in 1993 by the UN to prosecute war crimes, genocide and crimes against humanity that took place between 1991 and 2001 in the territories of former Yugoslavia. The ICTY makes bold claims that its precedent-setting form of justice is now the norm for conflict resolution and peace-building. Yet even the former United Nations Assistant Secretary-General for Legal Affairs, Ralph Zacklin, questions its success.
So, are international criminal courts good or bad? The answer may be somewhere in the middle. This article will begin by addressing the positive aspects of international criminal courts and in particular, the ICTY. Then it will go on to discuss some of the drawbacks and criticisms of international criminal courts and the ICTY.
Judicial infrastructure in places of mass atrocity, for many reasons, often lacks the capability to fairly process the vast amount of casework that needs to be handled post-conflict; international criminal courts can fill that gap. First, international criminal courts are typically established in social and political environments that historically lack strong legal frameworks. In addition, there are cases in which, because of war, the existing legal frameworks have broken down. Establishing rule of law after conflict with experts in law is a difficult task. The transition to liberal, democratic and impartial judicial institutions is a process that could take generations because the training is something learned through higher education. The institutions developed before the conflict may have been ones established by authoritarian regimes, therefore making it difficult to recycle parts of those pre-conflict institutions.
In the case of Yugoslavia, the Tito communist regime was the rule of law and there was little room for an independent judiciary system. When conflict arose in the former territories of Yugoslavia in the 1990s it was clear that the current judicial structure would not be powerful enough nor impartial enough to fairly prosecute the mass atrocity. Simply put, there would not have been enough judicial infrastructure to prosecute such powerful politicians and generals that were involved in the war. In this context, international criminal courts can provide a solution to this gap in judicial infrastructure. However, the failures of parachuting in a foreign judicial mechanism are a problem, and that will be discussed in the following section.
Second, international criminal courts take powerful political individuals and sentence them to lengthy jail time. In many cases, these individuals hold a lot of political power and if not for international criminal courts they would be back in power today. In the ICTY context, multiple individuals were prosecuted who would have regained leadership roles after the conflict. Removal of these individuals is an achievement by the ICTY that protected many local civilians from possible post-conflict violence.
Third, the location of the courts being outside the conflict zone has been praised and criticised. The praise argues that it is safest for victims and eyewitnesses because they do not need to testify within the conflict zone.
Fourth, legal counsel like judges, prosecutors and defenders are disallowed from being nationals of the conflict territory. The motivation is to maintain a high standard of impartiality within the proceedings. This is vital in cases where, as previously discussed, individuals being prosecuted can have significant political influence.
International criminal courts and the ICTY have played a crucial role in international law and transitional justice. However, there are several serious drawbacks. As discussed above, international criminal courts can bring in expert legal councils for areas that lack strong judicial institutions. However, exporting Western-centric laws into conflict areas can seem abstract to local populations. Idealist thinking by international criminal courts leads them to neglect very real, on-the-ground perceptions of the externally imposed law. Local society can oftentimes perceive international criminal courts to be a form of neo-colonialism that imposes Western-led control, packaged into an international law aid context.
Second, in post-conflict settings, international criminal courts need to understand that the law can be perceived by stakeholders in society to be political and biassed. In the case of the ICTY, perceptions are biassed across ethnic lines. Opinions of the local populations on ICTY judgements depend on whether their group was the victim or the perpetrator. If the former, they are more likely to view an ICTY sentencing positively, and vice versa.
Third, there is still a war of ideas that happens in post-conflict societies and international criminal courts can sometimes stoke this fire. In addition, an issue that compounds this war of ideas is that too often international criminal court proceedings are not translated into the local languages. Eventually, translations are made by the court, however, this often happens after local media has already grabbed the story. What ensues is that local media, with knowledge of the working language of the court and the local language, interpret the legal proceedings and distill it to the public however they like. This leads to a significant distortion of the objectives of the international criminal court by local media.
It must be stressed that international criminal court achievements should not be understated. An advance in international law with human rights as its core motivation is positive progress. However, its progress should be criticised to determine the best practice mechanisms of transitional justice after mass atrocity.