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Yugoslavia Tribunal Faces Uncertain Legacy

On the eve of World Day for International Justice, launched to recognise the emerging body of international criminal law, the International Criminal Tribunal for the former Yugoslavia (ICTY) faces an uncertain legacy. Initially slated to finish its work in 2008, the ICTY is two years behind schedule and at least four years from the final thump of its gavel.

The ICTY is regarded as a groundbreaking model for the trial and prosecution of individuals responsible for crimes against populations and has been a pioneer in the development and application of international law. However, the tribunal has also been criticized for its slow pace, inconsistent sentencing patterns and long-lasting impunity - all concerns reflected in an Open Society Justice Initiative report launched here Thursday.

The report, titled "That Someone Guilty Be Punished", and authored by Diane F. Orentlicher, Deputy for the Office of War Crimes Issues for the U.S. Department of State, examines the effects of the ICTY in Bosnia.

At a panel discussion at the report's launch, Refik Hodzic, Outreach Expert and former official of the ICTY and the Court of Bosnia and Herzegovina, referred to the publication as one of the most important of its kind because it is the first to examine the tribunal's impact on the main constituents for whom the tribunal was created: the people who witnessed and survived the atrocities of the 1990's Balkan wars.

Despite the overall support given to the tribunal by those interviewed, the publication also chronicles dissatisfaction with the ICTY's performance. The report, said Hodzic, shows that "The tribunal has to fight for its legacy."

Ambassador Ivan Barbalic, Permanent Representative of Bosnia and Herzegovina to the U.N., told IPS that the concerns raised about the tribunal's lengthy and complex process don't change the significance of its judgments.

"In ten, fifteen years, twenty years, the rulings of the ICTY are going to be the bricks of the house that the region will build together, and move toward a better future," Barbalic told IPS.

Established as a temporary institution in 1993 by a U.N. Security Council resolution, the tribunal's lifespan has been extended twice since its inception. The ICTY was initially set to finish all trials by 2008, but this target date was pushed back to 2010 two years ago. At Thursday's panel discussion, U.N. Assistant Secretary-General for Legal Affairs Peter Taksoe-Jensen said that according to the most recent estimates, "it will take until 2014 to complete all outstanding trials and appeals."

To date, the ICTY has closed 55 cases involving a total of 83 defendants. It has handed down approximately 926 years of jail time, with sentences ranging from two years to one life sentence. Eight defendants have been acquitted. Cases against 14 individuals have been terminated - 13 as a result of the defendant's death prior to a verdict being reached (including the case of former Yugoslav President Slobodan Milosevic) - and one as a result of an appeal.

Currently, the ICTY has ten active cases with 25 named defendants. Three cases with 11 defendants are before the appeals court, and two fugitives remain at large: Goran Hadzic, who was the Serb political leader in Croatia; and Ratko Mladic, military leader of the Bosnian Serbs during the wars. Mladic is accused of crimes against humanity, war crimes and genocide - including the July 11, 1995 Srebrenica Genocide, a massacre of 8,000 innocent men and boys considered to be the worst crime committed on European soil since World War II. The Srebrenica 15-year anniversary was commemorated Monday.

The fugitive status of Hadzic and Mladic - and the question of their capture in the near future - has the international community looking beyond 2014.

According to Taksoe-Jensen, the U.N. Security Council's informal working group on the ICTY's completion strategy is currently considering a draft resolution for a potential residual mechanism to assume the outstanding duties of the tribunal. These would include the continued protection of witnesses, the enforcement of sentences, the management of archives and the prosecution of any high-level criminals captured after the ICTY's closure.

However, Takso-Jensen said, "any residual mechanism that is established should be small, efficient and a new institution," instead of just a downsized tribunal.

This entails the transference of cases, evidence and expertise to domestic courts - a process that has already begun, notably with the establishment of the War Crimes Chamber in Bosnia's state court, which began operations in early 2005, and a Special Department for War Crimes in the State Prosecutor's office.

The Bosnian War Crimes Chamber has been touted as a model of a "hybrid" court, with both international and national judges and prosecutors. The continued functioning of international judges and prosecutors has been the subject of some scrutiny in the country, however, with some groups questioning their role in the chamber. Ambassador Barbalic, however, told IPS that he saw benefit in their presence.

"I believe that in this period, [international judges and prosecutors] still play an important role, but obviously, it wouldn't be appropriate that they stay forever," Barbalic told IPS. "In termination, their work should part of… a strategy that would take into consideration sufficiently building capacities of domestic judges."

[Source: By Aprille Muscara, United Nations, 16Jul10]

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