Post Date: May 24, 2006
The following op-ed by third-year student and Chayes Fellow Adam Smith was published in the May issue of The New Republic. The piece is based on a book that Smith is writing on domestic responses to war crimes. With support from HLS, he has traveled to the Balkans, the African Great Lakes region, The Hague, and Sarajevo as part of his research.
Four years, 466 hearing days, more than 300 witnesses, and over $200 million after it began in The Hague, Case Number IT-02-54, Prosecutor v. Slobodan Milosevic, was officially declared over on March 14, three days after Milosevic was found dead of an apparent heart attack in his prison cell. There will be no verdict. Following the dictates of international law, the U.N.'s Yugoslavia war-crimes tribunal in The Hague does not prosecute defendants in absentia, which means that the "butcher of the Balkans" died legally innocent of any of the war-crimes charges so painstakingly and expensively arrayed against him.
This result has led to disquiet and dissatisfaction in the halls of The Hague tribunal and, perhaps more importantly, at home in the Balkans. Images of thousands of weeping Serbs on the streets of Belgrade, and proclamations of Slobo's martyr status by Serb hardliners, have left many in the Balkans feeling robbed, not just by Milosevic's ill-timed demise, but by The Hague itself. In fact, many think The Hague's days as the primary venue for war-crimes trials are over. But how will justice be served in the future?
Michael Johnson might have the answer. When I first met Johnson at his office in Sarajevo in March 2005, he was covered in sawdust, and, after a quick introduction, he excused himself to move a safe. "Sometimes, if you want it done right," he said as he rolled up his sleeves. Outside his office doors, construction crews roamed the hallway, laboring to put the finishing touches on Bosnia and Herzegovina's new war-crimes court, which Johnson, an American lawyer, had been asked by the U.N. representative in Sarajevo to set up.
At first glance, what Johnson and his staff have built may not seem novel. Architecturally, the pink-hued courthouse, sitting on a hillside overlooking Sarajevo, fits unobtrusively into the Bosnian capital's Istanbul-meets-Innsbruck skyline. Even inside the building, there is little to distinguish it from the world's other war-crimes courts. Visitors familiar with the U.N.'s Yugoslavia tribunal in The Hague, its Rwanda tribunal in Arusha, Tanzania, or even the new International Criminal Court, will immediately feel at home. Johnson spent many years working at U.N. tribunals. And his decisions--to place the polished-wood defense and prosecution stands at a particular (and, to American eyes, peculiar) angle in each court, to install a bevy of flat-panel monitors throughout the tribunal, even to use U.N.-quality microphones and translation headphones--confirm the emergence of a kind of war-crimes chic in interior design.
In its operations, however, the court is unique, both for Bosnia and for the world. Unlike the U.N.'s Special Court for Sierra Leone, the International Criminal Court (which is presently investigating Darfur), or South Africa's nonjudicial, post-apartheid Truth and Reconciliation Commission, this court is a domestic judicial body. It uses existing domestic law and adheres to existing domestic judicial procedures. Rather than having the international community extradite and try war criminals, the new court raises the possibility of states dispensing post-conflict justice on their own terms, in their own courts, with only limited international involvement. It is a long overdue experiment, and it's one that may hold the key to allowing states--in the Balkans and elsewhere--to deal with their vexed pasts.
Since 1993, the Hague tribunal has convicted more than 40 individuals who perpetrated war crimes during the 1991-1995 Yugoslav civil war. Though most Bosnians supported the tribunal at first, ever since the 1995 Dayton Accords ended the conflict, Bosnian citizens have expressed increasing dissatisfaction that they are standing on the sidelines in the search for justice. Not only is The Hague a world away from the conflict zone, but also, outside its translators, almost no Balkan citizen has ever been employed by the tribunal. A former Hague prosecutor argued to me that such discriminatory hiring was necessary to "stem leaks" of sensitive information. Regardless, in Bosnia, which is run as a fiefdom under the rule of a U.N.-authorized "High Representative," this judicial impotence compounds a more pervasive emasculation of almost all government and civil society.
The Hague tribunal has built an impressive body of international criminal law, and it has incarcerated a number of war criminals. But other goals of criminal law--reconciliation and deterrence, to name two--have remained effectively unmet. The United Nations itself seems to agree: Its own chief legal officer, Assistant Secretary-General for Legal Affairs Ralph Zacklin, has all but disowned the tribunal, calling its approach "no longer politically or financially viable." A senior U.N. official in the region is even more direct, bluntly admitting to me that, while the tribunal has taken some of the Balkans' "biggest thugs" off the streets, it has not repaired Yugoslav society. "The [Hague] has failed; ironically, the Balkans are probably more likely to Balkanize now than at any time since Dayton," he laments.
The establishment of the new court was catalyzed by these mounting frustrations, as well as by the international community's fatigue at funding the remarkably expensive Hague tribunal (more than $250 million for 2006-2007). The United Nations has decided to conclude the tribunal's trials by 2008; in preparation, cases yet to be heard--and thousands of others that have been investigated but in which indictments have not yet been issued--will be sent back to domestic courts in the Balkans. Johnson's new Sarajevo court was designed, in part, to handle these cases.
The case transfers, however, had been stalled, largely over suspicions that ethnic minority defendants would not receive fair trials at the hands of ethnic majority judges. Such apprehension is not without merit. Immediately following the conflict, Croatia began a series of war-crimes trials of its own, almost always prosecuting Serbs. The cases had a conviction rate of 90 percent and often ended with absurd results: In a proceeding against Svetozar Karan, a Serb, the court found him not only guilty of war crimes, but also of the entire 500-year history of Serb crimes against Croatia.
The new Sarajevo court was designed to overcome such problems. Through a domestic court, the Bosnian government received a $16 million grant (largely from the United States) to build a tribunal whose facilities and technology equaled those of The Hague. In order to manage potential bias, court personnel have been recruited from across Bosnia and from abroad. International judges sit alongside domestic jurists, and locals and foreigners work throughout the tribunal. But, unlike other aspects of the international presence in Bosnia, the international role in the court is limited by a statutory provision calling for full domestication of court functions within five years.
The court has had a rocky start. Since opening last spring, it has battled a corruption investigation (with allegations made against one of the international judges), an almost absent public profile (with recent surveys indicating that less than 60 percent of Bosnians are aware that the new court even exists), and a tense relationship with the still-functioning Hague court. But the court has also quickly bulked up its staff (it already employs several hundred), and it has made special efforts to ensure that local staff are not mere tokens--locals work on all levels of the court hierarchy.
After 50 years of communism, five years of war, and the last decade of international control, Bosnia has developed a legal and political order that is decidedly not its own, from the country's new criminal code (which, by a strange twist of legal fate, is partially modeled on Alaska's) to its thoroughly compromised national symbols (which include a national anthem "sung" without any words). The court is an attempt to rebuild some local ownership over the state. Its first real tests, now underway, are the transferred trials of two Bosnian Serbs--Radovan Stankovic and Gojko Jankovic--both accused of the systematic enslavement and rape of Muslim women. About a dozen further cases are set to be transferred from The Hague later this year. Already, the court represents a new chapter in homegrown justice for Bosnia and Herzegovina and a new model for other corners of the globe scarred by crimes against humanity. "It is time for justice to come home," an exasperated law student at the University of Sarajevo told me when I met with a group of students at the law college, down the street from the bombed-out national library. "It is time for us to do some of this ourselves."
Adam M. Smith is a Chayes Fellow at Harvard Law School.