The fairness of the trials at the International Criminal Tribunal for the former Yugoslavia (ICTY) is an important but contested issue. In a formal sense, the trials must be fair because international human rights law includes a fair trial guarantee, but there are other reasons to want fair trials. Fair trials would be a moral obligation even in the absence of the legal requirement. Moreover, having fair trials is, according to procedural justice theory, one of the most important factors in establishing the legitimacy of a court and promoting compliance with the law, which is a goal of all international criminal justice mechanisms. In short, there are many reasons to believe that having fair trials at the ICTY is very important. And indeed, the ICTY is committed to having fair trials. For example, Article 20 of the ICTY Statute [PDF] says that the Trial Chamber "shall ensure" that the trials are "fair and expeditious" and that the trials are conducted with "full respect for the rights of the accused ... "
Nevertheless, the fairness of the ICTY's trials has been a contested issue, particularly within the former Yugoslavia. Surveys of attitudes towards the ICTY conducted during the 2000s consistently showed that ethnic Serbs overwhelmingly thought the ICTY was biased and untrustworthy. This led the ICTY's Prosecutor to lament in 2005 that "[t]he debate on war crimes in the former Yugoslavia is not subsiding. It is present in the daily life and media, and always politicized ... [T]he public is only interested ... in politically, not judicially, defined truth." The question of the ICTY's fairness was in the spotlight again recently, when the ICTY acquitted Ante Gotovina, a Croat general accused of having mistreated Serbian civilians, and Ramush Haradinaj, the former Prime Minister of Kosovo, who had also been accused of mistreating Serbian civilians. The reaction was predictable. The ICTY was vilified in Serbia as a fundamentally political court that ignored crimes committed against Serbs and was only interested in unfairly punishing Serbs.
I have previously offered an explanation for why ethnic Serbs have such a low opinion of the fairness of the court despite most independent observers having concluded that the trials were basically fair. Most ethnic Serbs identified strongly with their own ethnic group and took the Serb "side" in the conflict. Moreover, most ethnic Serbs had a common narrative about the conflict in which their group was the victim of crimes committed against them by the other groups. The ICTY directly contradicted this narrative of victimhood. The vast majority of the indictees were ethnically Serb, and Serbs were charged with the most serious crimes, including the commission of genocide at Srebrenica. In effect, the ICTY said that ethnic Serbs were the perpetrators not the victims. Unsurprisingly, given their strong identification with their "side" in the conflict, most ethnic Serbs rejected the court's narrative. This rejection was accomplished with the rationalization that the ICTY was unfair and biased against Serbs. If it was unfair and biased, then its conclusions could be rejected. I believe that this explanation is convincing, but it relies upon the assumption that the ICTY's trials are fundamentally fair and not political witch hunts.
Recently, I have been trying to test [PDF] that assumption about the court's fairness. I began by asking the question: if the ICTY's trial were political trials, how would we expect them to differ from fair trials? My answer was that in political trials we would expect the trier of fact to be extremely deferential to the prosecution's theories because of external political pressure to convict. As a result, indictees accused of more serious crimes or more numerous crimes would be more likely to be convicted and receive longer sentences. In effect, a strong correlation between the allegations in the indictment and the outcome of the trial could indicate the trials are political. Thus, my approach was to look for correlations between the content of the indictments and the outcomes of the trials.
The results are consistent with the ICTY's trials being fair. For example, there was no significant correlation between the seniority of the accused in their respective political and military hierarchies and either the number of counts that they were charged with or the sentences they received. If one starts with the belief that the ICTY is a political court and that its goal is to punish political and military leaders in the former Yugoslavia, then you would expect senior defendants to be accused of more crimes and receive longer sentences, but this did not turn out to be the case. Similarly, if you think the ICTY's were political, you might predict that individuals who were charged with more counts received longer sentences. This did not turn out to be true either. The total number of counts charged did not have a significant correlation with sentence length. Neither did the geographic scope of the charges. Individuals charged with crimes occurring over larger areas did not receive longer sentences than individuals accused of crimes committed over a smaller area. On the other hand, ethnic Serbs did make up the largest percentage of the accused and received the longest sentences but this is best explained by the fact that they were responsible for the largest number of violations of international criminal law and the most serious violations committed during the conflict.
There have also been criticisms of the ICTY arising out of its use of various modes of liability. The most serious criticism has been that superior responsibility and joint criminal enterprise (JCE) effectively turn crimes with distinct mens rea elements into strict liability crimes. My results provide little evidence for this criticism. For one thing, there is no correlation between the mode of liability alleged and the sentence received. Moreover, alleging that the accused committed the crime by participating in a JCE is correlated with acquittal, not conviction. This is hard to reconcile with claims that the ICTY's trials are political in nature, particularly given that JCE correlated strongly with seniority. Thus the use of JCE made it more likely that senior figures would be acquitted, which is not the outcome one would expect from political trials.
Ultimately, the data is inconsistent with allegations that the ICTY's trials are political trials. This is good news because fair trials are important. On the other hand, the fairness of the trials appears to have had relatively little impact in Serbia, where attitudes towards the court have been very negative. This is unfortunate because the population of the former Yugoslavia is an important audience for the court. Even more troubling, negative perceptions of the ICTY among ethnic Serbs are a direct result of the ICTY functioning as it was intended to function. The court was intended to identify and prosecute those who had committed serious violations of international criminal law. Its conclusion that ethnic Serbs were responsible for the largest number of violations and the most egregious violations was therefore both something it was supposed to do and what directly led to it being perceived so negatively among Serbs.
And this brings us back to where I started. At the beginning of this essay I argued, based on procedural justice theory, that fairness is crucial to the legitimacy of legal institutions and to compliance with the law. How can we reconcile that claim with how the ICTY has been perceived by ethnic Serbs? There are a couple of answers. First, ethnic Serbs are just a small, albeit important, part of the audience for the ICTY. Ultimately, the audience for international criminal justice mechanisms is everybody on the planet. So while ethnic Serbs were heavily invested in the question of who was indicted in ways that overrode the expected benefits from a fair process, this will not be true for the vast majority of the court's audience. For the majority of the audience that does not identify with the accused, perceptions of the court's legitimacy should be driven by the fairness of the process, as predicted by procedural justice theory. Second, even in Serbia attitudes appear to be changing. There is some evidence that over time more Serbs are coming to accept that ethnic Serbs committed atrocities at Srebrenica and other places. The reason for this change in narrative is at least partly the evidence that has been collected by the ICTY during the course of its trials. In effect, the ICTY (and other international criminal tribunals) must play a long game. Initially, they may be viewed quite negatively by groups who identify with the individuals they accuse, but if they collect convincing evidence of the guilt of the accused and present that evidence in fair trials they may, over the long haul, be able to reshape narratives that are holding back both perceptions of the court and compliance with international criminal law.
Stuart Ford is an Assistant Professor at The John Marshall Law School in Chicago, IL. Prior to his appointment there, Professor Ford served as an Assistant Prosecutor at the Extraordinary Chambers in the Courts of Cambodia.
Suggested Citation: Stuart Ford, ICTY Provides Fair, Non-Political Trials, JURIST - Forum, Dec. 3, 2013, http://jurist.org/forum/2013/12/stuart-ford-icty-fair.php
This article was prepared for publication by Brent Nesbitt, assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org